Otorn^U ICatu ^rl^ool ICtbraty ircMcn«c'^f2'.*'ii'"'™™"y Library KFN5995.A3L29 1906 ^™?iiiiiii)ii'Mi;iuMi'!ifiiSa'.f '"'"s and practice Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022788016 BRADBURY'S LANSING'S FOKMS AND PEAOTIOB OF CIYIL PROCEDURE INCLUDING PLEADING WITH COMPLETE FOKMS THEREFOR, UNDER THE NEW YORK CODE OP CIVIL PROCEDURE, IN ACTIONS AND PROCEEDINGS BOTH OF A LEGAL AND EQUITABLE NATURE ; ALSO THE PRACTICE IN CIVIL ACTIONS AT LAW IN THE FEDERAL COURTS IN NEW YORK BY WILLIAM LANSING ENTIRELY EEWEITTEN AND EEAREANGED, ADDING THE PBACTICE AND MANY FOKMS BY H. B. BRADBURY OF THE NEW TOKK BAB VOLUME I THE BANKS LAW PUBLISHING CO. 21 MURRAY STREET, NEW YORK 1906 LR i37y^ COPTEIGHT, 1906, BT THE BAIJKS LAW PUBLISHING COMPAKY. PREFACE Lansing's Forms have been favorably known by the Bar of New York State for twenty years. But the Practice feature of the work has heretofore consisted merely of brief footnotes to the forms. In the present edition the practice, according to the rules announced in the late cases and amendments to the Code, as well as in the old cases which have not been re- versed, overruled, or modified by new Statutes or otherwise, has been prefixed to the forms. The forms also have been completely revised and many new precedents have been added. Where fhe practice in the Federal courts, in actions at law, in the State of New York, differs from that in the State courts, the procedure in the Federal tribunals has been indi- cated. The work as thus revised is a complete guide to prac- tice and pleading in the State courts-in actions and proceedings in law and equity, and in the Federal tribunals in actions at law in New York. The old arrangement of following the Code sections in their numerical order, was necessarily changed with the addition of the practice matter. This was found essential, not only be- cause of the frequent grouping of many disconnected sections of the Code in a particular chapter, in making a proper arrange- ment of the subjects, but also because of the fact that forms relating to practice, which are founded on independent Stat- utes, are included in the present edition. The Table of Code Citations, however, will be found a key to the present work by those who have been in the habit of loolcing for a form under a particular Code section. This Table of Code Cita- tions, with the Analytical Table of Contents in each volume, iii IV PREFACE. together with the tables of forms at tlie beginning of each title and the carefully prepared index, it is believed, will make the contents of the work easily accessible to the Pro- fession. While realizing that there must be many errors of omission and commission in a work so comprehensive in character as this is, if I have removed a moiety of the difficulty in easily discovering the correct practice, in trying to interpret a some- what confused mass of statutes, rules, and conilicting decisions, I shall feel amply repaid for the days and nights I have spent in preparing the matter herein contained. H. B. Beadbuet. 60 Wall St., New Yoek, Dec. 1, 1906. ANALYTICAL TABLE OF CONTENTS IN VOL. I. CHAPTER I. PROCEEDINGS BEFORE ACTION". Art. I. Notices and Demands, 1. 1. Statutory notice, 1. 2. In Cities containing upwards of 50,000 inhabitants, 1. 3. In New York City, 2. 4. Vniages, 3. 5. Employers' Liability Act, 4. 6. Notice by executor, etc., 4. 7. Notice as affecting costs, 5. 8. If a demand would have been unavailing, 5. 9. Demand; joint defendant, 6. 10. Conversion, 6. 11. In replevin, 6. 12. On a certificate of deposit, 6. 13. Contracts, 6. 14. Alimony, 7. 15. Contempt, 7. 16. Undertaking on arrest, 7. FORMS. 1. Notice of Intent to Sue Municipal Corporation for Negligence, 8. 3. Notice under Charter of Rochester, 9. 3. Notice to Comptroller of New York City on Contract Claim. 4. Notice of Proposed Action against Village, 10. 5. Notice of Injury Under Employers' Liability Act, 11. Art. II. Assignment of Cause of Action, 12. 1. Requisites, 12. FORMS. 6. Assignment — General Form, 13. 7. Assignment of Account, 14. VI ANALYTICAL TABLE OF CONTENTS, VOL. I. Leave to Sue. PROCEEDINGS BEFORE ACTION— Continued. 8. Assignment of Chattel Mortgage, 14. 9. Assignment of Lease, 16. 10. Assignment of Mortgage, New York City and Kings County, 17. 11. Assignment of Mortgage Outside of New York and Kings County, 18. 32. Assignment of Mortgage — Corporation, 19. 13. Assignment of Patent, 21. 14. Assignment of Patent before Letters are Granted, 22. Art. m. Leave to Sue, 23. (a) On Judgments, 24. FORMS. 15. Affidavit to Apply for Leave to Sue upon a Judgment, 24. 16. Notice of Motion for Leave to Sue upon a Judgment, 25. 17. Order Granting Leave to Sue upon a Judgment, 26. (b) Actions By and Against Receivers, 27. 1. Necessity of receiver securing leave to sue, 27. 2. A receiver in supplementary proceedings, 27. 3. A receiver's application for leave to sue, 27. 4. Necessity of securing leave, 27. 5. Trustee in bankruptcy, 29. FORMS. 18. Petition of Receiver for Leave to Bring Action, 29, 19. Order Giving Receiver Leave to,Sue, 31. 20. Petition for Leave to Sue Receiver, 31. 21. Order Granting Leave to Sue Receiver, 32. (c) Actionsin Nature of Quo Warranto, 33. 1. Forfeiture of franchise, 33. 2. Vacating and annulling act of incorporation, 33. 3. The application of the Attorney General, 34. 4. Notice to corporation, 34. 5. The court will not determine the merits, 34. 6. The order, 34. 7. The judgment, 34. FORMS. 22. Petition by Attorney General for Leave to Bring an Action to Va- cate and Annul the Charter of a Corporation, 35. ANALYTICAL TABLE OF CONTENTS, VOL. I. Vll Guardian ad litem for Plaintiff or Defendant. PROCEEDINGS BEFORE ACTION— Coniinued. 23. Order Granting Leave to Attorney General to Sue, 36. 24. Request to Attorney General to Sue, 37. 25. Petition by Creditor or Stockholder for Permission to Sue upon Refusal of Attorney General to Bring Action, 37. 26. Order Granting Leave to Creditor or Stockholder to Sue, 39. (d) As Poor Person, 40. 27. Petition for Leave to Prosecute as a Poor Person, 40. 28. Certificate of Counselor at Law Annexed to above Petition, 41. 29. Order Granting Leave to Prosecute Action as a Poor Person, 41. 30. Order Annulling Leave to Prosecute or Defend as a Poor Per- son, 42. 31. Petition for Leave to Defend an Action as a Poor Person, 42. 32. Order Granting Leave to Defend Action as a Poor Person, 43. (e) On Bonds, 44. 83. Application for Leave to Sue on Bond Executed to the People or a Public OflScer, by Party Interested, 44. 34. Order Granting Leave to Sue on Bond Executed to People or Pub- lic Officer for the Benefit of Party or Person Interested, 44. Art. IV. GUAEDIAK AD LITEM FOB PLAINTIFF OK DEFENDANT, 45. 1. How action for infant plaintiff brought, 45. 2. Submission of controversy, 46. 3. Jurisdiction of the court to appoint, 46. 4. Service of summons by publication, 47. 5. Section 473, Code Civ. Pro., 47. 6. Effect of failure to appoint guardian, 48. 7. By whom application made, 48. 8. Who appointed, 49. 9. Security by guardian, 50. 10. After an action is begun, 50. 11. Verification of petition, 50. FORMS. 35. Petition for Appointment of Guardian ad litem for Infant Plain- tiff, 51. 36. Affidavit of Person Proposed as Guardian as to his ability to An- swer to Infant, 52. 37. Petition for Appointment of Guardian ad litem by Infant Defend- ant, 52. via ANALYTICAL TABLE OF CONTENTS, VOL. I. Confession of Judgment. PROCEEDINGS BEFORE ACTION— Continwd. 38. Petition by Relative or Friend of Infant Defendant, or by a Party to tlie Action, for Appointment of Guardian, 5-3. 39. Order of Court or Judge Appointing Guardian for Iijfant Befend- ant, 54. 40. Same Order Made upon the Application of the Infant, 55. 41. Affidavit to Obtain Order Appointing Guardian for Resident In- fant Defendant Temporarily Absent, 56. 42. Order Designating Guardian for Infant Defendant, Residing out of State, or Residing therein but Temporarily Absent There- from, 56. 43. Bond by Guardian Before Receiving Property, 51. CHAPTER II. JUDGMENTS WITHOUT PROCESS. Art. I. Confession of Judgment, 60. 1. The Code changed the common-law rule, 60. 2. Who may confess judgment, 61. 3. Joint debtors; confession by one, 61. 4. What claims thus secured, 62. 5. Tort, 62. 6. Insufficient statements, 62. 7. Promissory note, 62. 8. Amendment, 62. 9. Fraudulent grantees, 63. 10. Enforcing, 63. 11. How attacked, 63. FORMS. 44. Statement on Confession of Judgment Without Action, 64 45. Verification, 69. 46. Judgment Entered by Confession, TO. 4*7. Bill of Costs on Entry of Judgment by Confession, 71. Art. II. Submission of Controversy on Admitted Facts, 72. 1. Jurisdiction, 72. 2. In making up a case, 72. 3. Facts admitted without reservation, 72. 4. The defendant practically demurs, 72. ANALYTICAL TABLE OF CONTENTS, VOL. I. IX When an Action or a Special Proceeding is Deemed Commenced. JUDGMENTS WITHOUT PKOCESS— ConimSed. 5. Stipulation as to facts, 73. 6. Parties, 73. 7. Verification by attorney, 73. 8. A public officer, 73. 9. Attorney General, 73. 10. Infants, 74. 11. Partners, 74. 12. Facts; what considered, 74. 13. An abstract question of law, 74. 14. Formulated questions, 74. 15. Dismissing submission, 75. 16. The relief to be granted may be limited, 75. 17. Temporary injunction, 75. 18. A decree of specific performance, 75. 19. Dower, 75. 20. Same attorneys for both parties, 76. 21. Pending action, '76. 22. Costs, 76. 23. An extra allowance, 76. FORMS. 48. Statement on Submission of Controversy, 76. 49. Verification of Submission, 78. 50. .Judgment on Submission, 78. 51. Money Judgment on Submission of Controversy, 79. CHAPTER III. THE SUMMONS AND THE SEEVICE THEREOF. Art. I. When an Action or a Speciai, Proceeding is Deemed Com- menced, 81. 1. The original process, 81. 2. In equity in the Federal Courts, 81. 3. Under the common law, 82. 4. Under the Code, " A civil action is commenced by the service of a summons," 82. 5. A voluntary general appearance, 82. 6. When special proceeding is begun, 82. 7. Where a warrant of attachment is granted before the summons is served, 82. 8. An order of arrest, 83. X ANALYTICAL TABLE OF CONTENTS, VOL. 1. Where a Summons may be Served Personally — -Territorial Limitation. THE SUMMONS AND THE SERVICE THEUEOF— Continued. 9. An injunction order, 83. 10. Limitation; joint defendants, 83. 11. Tlie same; attempt to commence action, 84. 12. Where the time to begin the action is limited by contract, 84. 13. In the Municipal Court of the City of New York, 84. 14. Replevin, 85. Art. II. Contents and Fobms of Summonses and Notices Attached Thereto, 85. 1. The summons must contain, 85. 2. Failure to name the county, 86. 3. Misnomer of defendant, 86. 4. Changing the name of the plaintiff, 86. 5. Where the defendant is sued by a fictitious name, 86. 6. Designating the Christian names by initials, 87. 7. A substitution of defendants, 87. 8. Individual and representative capacity, 87. 9. Partners, 88. 10. Uuincorporated associations, 88. 11. Attorney's name and address, 89. FORMS. 52. Summons, 89. 53. Affidavit, Undertaking and Order Shortening Time to Answer Summons in City Court of the City of New York, 91. 54. Notice Where the Complaint is not served with the Summons, 93. 55. Notice of Object of Action and no Personal Claim in Mortgage Foreclosure Cases, 94. 56. Notice in Other than Mortgage Foreclosure Cases, 94. 57. Indorsement on Summons in an Action for a Penalty or For- feiture, 95. 58. Indorsement on Summons in Matrimonial Actions where Com- plaint not served, 96. 59. Summons in the Municipal Court of the City of New York, 96. Art. III. Where a Summons may be Sebved Pebsonallt — Tebbito- RiAL Limitation, 97. 1. Territorial limitation, 97. 2. The process of the State Court, 97. 3. A defendant's interest in property, 97. 4. In the New York Supreme Court, 98. 5. County Courts, 98. 6. Process of a Surrogate's Court, 98. 7. City Court of the City of New York, 98. ANALYTICAL TABLE OF CONTENTS, VOL. 1. XI By Whom, When and How a Summons may be Served. THE SUMMONS AND THE SERVICE TR^KEOF— Continued. 8. A summons of the Municipal Court of the City of New York, 99. 9. City Court of Yonkers, 99. 10. In the City Court of Troy, 99. 11. A justice's summons, 99. 12. A Federal Circuit Court, 99. 13. A lien by attachment, 99. 14. Where one State contains more than one district, 100. 15. Federal Courts the creation of Congress, 100. 16. Jurisdiction depending upon diversity of citizenship, 101. 17. Jurisdiction because Federal question involved, 101. 18. As to persona] service without the State, 101. Art. IV. By Whom, When akd How a Summons mat be Served, 102. 1. Any person not a party to the action, 103. 2. A sheriff, as such, 103. 3. Service of a summons by the plaintiff, 103. 4. Federal Courts; who may serve summons, 104. 5. In suits in equity in the U. S. Court, 106. 6. Sunday, 106. 7. On holiday, 107. 8. Service is made on a natural person, 107. 9. Personal service, 107. 10. Service upon a deputy attorney general, 108. 11. Service on a foreign insurance commissioner, 108. 12. On an infant under fourteen years of age, 108. 13. On an infant over the age of fourteen years, 109. 14. Incompetents, 109. 15. When the defendant has not been judicially declared incompe- tent, 109. 16. Where the interests of the committee of an incompetent are ad- verse, 110. 17. Serving on relative, 110. 18. Service on a husband for himself and his wife, 110. 19. Municipal corporations, 110. 20. Domestic corporation, 110. 21. Foreign corporations, 111. 22. Code Civ. Pro. § 432, subds. 1 and 2, 111. 23. The same; subd. 3, 112. 24. Nonresident director, 112. 25. Managing agent, 112. 26. Federal Courts; service of summons on corporations, 114. 27. In Federal equity courts, 115. 28. Difference between Federal and State law, 115. 29. Substituted sei-vice generally, 116. Xll ANALYTICAL TABLE OF CONTENTS, VOL. I. By Whom, When and How a Summons may be Served. THE SUMMONS AND THE SERVICE THEREOF— Continued. 30. Inability to secure personal service, 116. 31. The statute is constitutional, 117. 32. Substituted service within the State, 117. 33. When order made, 117. 34. When order not made, 118. 35. Infants, 118. 36. The judgment entered on substituted service, 119. 37. Publication or personal service without the State, 119. 38. The papers on vehich an order of publication is founded, 121. 39. An affidavit is necessary, 121. 40. Nonresidence and inability to serve, 121. 41. In Federal Courts, substituted service, 122. 42. How served, 122. 43. Joint defendants; service on one, 122. 44. Failure to serve summons within the time, 122. 45. Judgment; substituted service; effect, 122. 46. Proof of service generally, 123. 47. Affidavit of third party, 124. 48. A marshal's return, 124. 49. If person claims to have been wrongly served, 124. FORMS. 60. Indorsement on Summons of Time within which it Must be Served, 125. 61. Sheriff's Certificate of Service of Summons and Complaint, 125. 62. Certificate of Service of Summons and Complaint upon an Infant under fourteen years of age, 126. 63. Certificate of Service upon a Lunatic, Idiot or Habitual Drunkard and his Committee, 126. 64. Certificate of Service of Summons on person Designated by a Resident of the State during his Absence to Receive Service for him, 127. 65. Certificate of Service of Summons on a Corporation, 128. 66. Certificate of Service of Summons on a Person Designated by Foreign Corporation in the County to Receive Same, 128. 67. Certificate of Sei-vice where Person so Designated Cannot be Found, etc., 129. 68. Certificate of Service of Summons oh Several Defendants at Dif- ferent Times, 130. 69. Affidavit of Service of Summons and Complaint by Person other than Sheriff, 130. 70. Affidavit of Service on Infant under Fourteen Tears of Age, 131. 71. Affidavit of Sertioe of Lunatic, etc., for whom Committee has been Appointed, 132, ANALYTICAL TABLE OF CONTENTS, VOL. I. XllI By Whom, When and How a Summons may be Served. THE SUMMONS AND THE SERVICE TKEU^OF— Continued. 72. AflBdavit of Service of Summons on a Corporation, 132. 73. Affidavit of Service of Summons on Person Designated by Foreign Corporation to Eeceive Same, 133. 74. Affidavit of Service of Summons on Foreign Corporation where no Person is Designated to Receive Service, etc., 133. 75. Affidavit of Service of Summons on Under-sheriff, etc., for Sheriff in Action for Escape, 185. 76. Order of Court that Service be made on Person other than Defend- ant in Certain Cases, 136. 77. Order for Service where it Appears that Person to whom Sum- mons is Delivered has Adverse Interest, etc., 136. 78. Affidavit to Procure Order Dispensing with Service upon Lu- natic, 137. 79. Order Dispensing with delivery of Copy of Summons to Luna- tic, 138. 80. Designation by a Resident of a Person upon whom to Serve a Summons During his Absence from the United States, 139. 81. Revocation of Designation by Resident of Person to Receive Serv- ice of Summons, etc., 140. 82. Designation by Foreign Corporation of a Person for the Purpose of Service of Summons upon it, 141. 83. Revocation of Designation of Person Designated by Foreign Cor- poration upon Whom to Serve Summons, 143. 84. Change of Office or Residence by Person Designated by Foreign Corporation upon whom Summons may be Served, 145. 85. Written Admission of Service of Summons, 146. 86. Certificate that Defendant Evades Service of Summons, 147. 87. Affidavit to Procure Order for Service of Summons on a Resident who Cannot be Found, 147. 88. Order for Service of Summons on a Resident who cannot be Found, 148. 89. Proof of Substituted Service, 149. 90. Affidavit of Plaintiff or his Attorney on Application for Order for Service of Summons by Publication, 150. 91. Affidavit of Search and Inquiry for Defendant on Application to Serve Summons by Publication, 152. 92. Order for Service of Summons by Publication, 153. 93. Notice to Defendant to Accompany Summons as Published, 155. 94. Notice to be Served with Summons when Service is made Without the State, 156. 95. Proof of Publication of Summons and Notice, 156. 96. Affidavit of Deposit in the Post Office Pursuant to Order, 157. 97. Affidavit of Service on Defendant without the State, 157. 98. Notice to Defendant of Entry of Judgment, in case of Service by Publication, 158. XIV ANALYTICAL TABLE OF CONTENTS, VOL. I. Acknowledgments. OHAPTEK IV. APPEARANCE. 1. In general, 159. 2. Time, 159. 8. How general appearance can be effected, 160. 4. Taking part in the litigation generally, 160. 5. A general appearance waives all defects, 160. 6. A defendant may appear at any time before final judgment, 160. "7. Serving an answer without reservation, 160. 8. The service of an answer pleading lack of jurisdiction, 160. 9. The service of a notice of appearance followed by an answer, 161. 10. Interposing an answer alleging non-service of the summons only, 161. 11. Signing a stipulation extending the time to answer, 161. 12. Securing an order extending the time to answer, 161. 13. An extension of the time to answer, 161. 14. The appearance of one of two foreign executors, 161. 15. When person is sued as executor and individually, 162. 16. Serving a notice of motion, 162. 17. Removing a cause to a United States Court, 162. 18. In the Federal Courts, 162. 19. In the absence of proof of a general appeai^nce, 162. 20. When defendant not served with the summons, 162. 21. The owner of the fee of real estate, 163. 22. Withdrawal of appearance, 168. FORMS. 99. Notice of Appearance, 163. 100. Notice of Special Appearance, 164. 101. Notice of Appearance and Waiver of Notice in Foreclosure, 164. 102. Notice of Appearance in Person, 165. CHAPTEE Y. COMMON FORMS. Art. I. Acknowledgments, 166. 1. The term "acknowledge" and "acknowledgment," 167. 2. Any instrument except a promissory note, a bill of exchange or a last win, 167. ANALYTICAL TABLE OF CONTENTS, VOL. I. XV Acknowledgments. COMMON FORMS— Continued. 3. An acknowledgment is only prima facie evidence, 168. 4. The theory of an acknowledgment, 168. 5. The officer should be personally acquainted, 168. 6. Territorial jurisdiction of an officer, 169. 7. Erasures and interlineations, 169. 8. Amending certificate, 169. 9. Parol evidence, 169. 10. A defective certificate, 169. 11. Officer interested in transaction, 169. 12. Venue, 170. 13. Date, 170. 14. Omission of the Consul General's residence, 170. 15. Form, 171. 16. Proof by a witness, 171. 17. Acknowledgment after suit commenced, 171. 18. A certificate of authentication, 171. 19. In New York, 171. In the State, 172. Out of State and in U. S., 172. Out of the United States, 172. FORMS. 103. Acknowledgment by One or More G-i%ntOrs Known *d 'Officer — Short Form, 173. 104. By One or More Grantors tnown to Officer — Long Form, 173. 105. By a Grantor Identified by a Witness, 174. 106. By Two Persons, One Known and One Identified, 174. 107. By a Subscribing Witness Known to the Officer, 175. 108. By Witness not Known but Identified, etc., 175. 109. Proof of the Execution of a Deed When the Subscribing Wit- nesses are Dead, 176. 110. By Husband and Wife Known to the Officer, 177. 111. By Two Husbands and Their Wives, 178. 112. By Wife in Separate Certificate, 178. 113. By a Husband and Wife Identified by a Witness, 178. 114. By Husband Known, and Wife Identified, 179. 115. By a Subscribing Witness of a Deed Executed by a Husband and Wife, 179. 116. By Witness Identified in a Case Similar to the Last, 180. 117. By a Sheriff, Keferee or Receiver, 181. 118. By Under-sheriff in the Name of Sheriff, 181. 119. By a Person Conveying by a Power of Attorney, 181. 120. By an Administrator, Executor or Trustee, 182. 121. Acknowledgment by Corporation, 182. XVI ANALYTICAL TABLE OF CONTENTS, VOL. I. Affidavits. COMMON FOB.MS—Continued. 122. By Firm by One Partner, 183. 123. Certificate of County Clerk to be Annexed to the Certificate of the Officer Talcing the Acknowledgment When it is to be Used in Another State, 183. 124. Petition for a Subpoena to Compel a Subscribing Witness to Prove the Execution of a Conveyance, 184. 126. Subpoena for Subscribing Witness to Appear and Testify, 185. 126. Proof of Service of Subpoena, 186. 127. Warrant to Arrest, 186. 128. Commitment of Witness Refusing to Testify, 187. 129. Oath to be Administered to the Subscribing Witness, 187. 130. Oath to be Administered to a Person Identifying the Parties or the Subscribing Witness to a Conveyance, 188. 131. Affirmation to be Administered to an Affiant, 188. 132. Affidavit to a Deponent Sworn with the Uplifted Hand, 189. Art. II. Admissions, 189. 1. The court will take judicial notice of the signatures of at- torneys, 189. 2. The date of admission, 189. 3. An unqualified admission of the service merely, 189. 4. Withdrawing admission, 189. 5. Rubber stamp signature, 189. FORMS. 133. Full Admission, 190. 134. Admission Without Waiver of Defects, 190. Art. III. Affidavits, 190. 1. Title, 191. 2. Venue, 191. 3. Presumption of regularity, 192. 4. By whom made, 192. 5. Sworn to before attorney of record, 192, 6. A judge, 193. 7. Recitals and allegations of facts, 193. 8. The name of the affiant, 193. 9. Jurat, 193. 10. Affidavits taken within the State, 193. 11. Affidavits taken without the State, 194. Table Showing when Authentication Required other than the Certificate of the Officer taking the Acknowledgment or Affidavit out of the State, 195, 196, 197, 198. ANALYTICAL TABLE OF CONTENTS, VOL. I. XVll Amendments. COMMON FORMS— Co)i«;ftued. 12. A certificate authenticating, 198. 13. Oath; how taken, 198. 14. Striking out, 199. 15. Foreign notary public, 199. 16. Affidavits on Information and belief, 200. 17. The same; general rule, 201. 18. A denial on information and belief, 202. 19. Information received by telephone, 202. 20. Using affidavit second time, 202. FORMS. 135. Venue, 203. 136. Commencement of Affidavit Proper, 203. 137. Jurat, 204. 138. Jurat when Affiant is Illiterate or Blind, 204. 139. Jurat When Affiant is a Foreigner, 204. 140. Jurat When Affidavit taken before an Ambassador, Minister, Consul, etc., 205. 141. Jurat when Affidavit taken before Officer of Army or Navy in Porto Rico, the Philippines or Cuba, 205. Art. IV. Allowance, 206. 1. Allowance of State writ, 206. 2. Issued without allowance, 206. FORMS. 142. Allowance of State Writ, 206. Art. V. Amendments, 207. 1. The Code, 207. 2. A liberal spirit, 207. 3. Laches, 207. 4. Amendments of particular proceedings, 208. 5. A demurrer, 208. 6. An order to show cause, 208. 7. A copy of a summons, 208. 8. A petition for certiorari, 208. 9. Attachment papers, 209. 10. A defective notice of appeal, 209. 11. The venue, 209. 12. A naturalization certificate, 209, 18. Findings, 209. XVlll ANALYTICAL TABLE OF CONTENTS, VOL. I. Bonds and Undertakings. COMMON FOnUS— Continued. 14. A decision of tlie court, 209. 15. Judgment, 209. 16. A surrogate's decree, 210. 17. A surrogate's order, 210. 18. A claim against an estate, 210. 19. Effect of the statute of limitations, 210. 20. Where application made, 210. FORMS. 143. Affidavit of Attorney for Leave to Amend Petition for Writ of Certiorari, 211. 144. Order Permitting Amendment of Petition for Writ of Certiorari, 212. Art. VI. Bonds and U ndeetakings, 213. 1. Difference between a bond and an undertaking, 218, 2. Seal, 213. 3. Title, 214. 4. Date, 214. 5. Formal requisites, 214. 6. An undertaking must be acknowledged, 214. 7. One surety, 214. 8. A party need not join, 214. 9. Consideration, 215. 10. Countersigning check by surety, 215. 11. The surety, 215. 12. Householdei-, 215. 13. A freeholder, 215. 14. Attorneys as sureties, 215. 15. Insolvency of the surety, 216. 16. Approval, 216. 17. The justification of sureties, 216. 18. If sureties fail to justify, 217. 19. If a party excepting to sureties fails to attend, 217. 20. If sureties fail to justify, 217. 21. A reference, 217. 22. Justifying in smaller amount, 218. 23. Justification by a surety company, 218. 24. Default on justification, 218. 25. Replevin, 218. 26. The amount in -which a surety must justify, 218. 27. The affidavit of justification, 218. 28. Amendments, 219. 29. Release of surety, 219. 30. A surety company, 220. ANALYTICAL TABLE OF CONTENTS, VOL. I. XIX Captions. COMMON FORMS— Continued. 31. Change of parties, 220. 32. Filing, 220. 33. Liability of surety, 220. FORMS. 145. Bond in Action or Legal Proceeding, General Form, 223. 146. Undertaking in Action or Legal Proceeding, General Form, 225. 147. Official Bond, 226. 148. Indemnity Bond, 227. 149. Guardian's Bond on Application to Sell Infant's Real Estate, 227. 150. Receiver's Bond— General, 229. 151. Receiver's Bond in Supplementary Proceedings, 230. 152. Mortgage Bond, with Interest, Insurance, Tax, Assessment, Re- ceivers and Gold Coin Clauses, 231. 153. Undertaking on Attachment, 233. 154. Undertaking on Security for Costs, 234. 155. Undertaking on Removal of Action into the City Court of the City of New York, 235. 156. Undertaking on Appeal to the Court of Appeals, 236. 157. Undertaking on Appeal from Order, Without Stay, 237. 158. Notice of Filing of Bond or Undertaking, 237. 159. Notice of Exception to Sureties, 238. 160. Notice of Justification of Sureties, 238. 161. Affidavit in Proceeding by Surety on Bond of a Trustee, Com- mittee, Guardian, Assignee, Receiver, Executor, Administra- tor or other Fiduciary to be Relieved from Further Liability on said Bond, 240. 162. Order Requiring Trustee or Other Fiduciary to Furnish New Bond, 241. 163. Order Requiring Trustee or Other Fiduciary to Account after Filing a New Bond, 242. 164. Order Removing Trustee or Other Fiduciary and Compelling Him to Account upon Failure to File new Bond, 242. Art. VII. Captions, 243. 1. A caption or title, 243. 2. The Code, 244. 3. The names, 244. 4. Appeal and error, 244 FORMS. 165. Caption in Action, 244. 166. Caption in Proceeding Before Action is Begun, 245. 167. Caption in an Action where a State Writ is Issued at the Instance of a Private Party, 245. XX ANALYTICAL TABLE OF CONTENTS, VOL. I. Copies. COMMON FO'BMS— Continued. Art. VIII. Cbbtificates, 246. 1. Certificates generally; sheriffs, 246. 2. A referee, 246. 3. A certificate of acknowledgment, 246. 4. The clerks of the courts, 246. FORMS. 168. Certificate of Clerk to Copy of Paper on File in his Office, 247. 169. Certificate of Clerk to Copy of Paper on File in his Office, 248. 170. Certificate of Officer that Document Cannot be Found, 248. Art. IX. Copies, 249. 1. In making a copy, 249. 2. In filling in the signatures, 249. 3. In serving a complaint, answer, affidavit, 249. 4. In serving court orders, 250. 5. The New York Statute, 250. 6. An exemplified copy, 250. 7. A copy of a certificate of marriage, 251. 8. Entries in the books of a foreign corporation, 251. 9. A copy of any paper filed, 251. 10. A civil service regulation, 252. 11. What copy proves, 252. 12. Town Clerk's office, 252. 13. Justice, 252. 14. Foreign justice, 252. 15. All ordinances or resolutions, 252. 16. A printed copy of a foreign law, 252. 17. IT. S. departments and Comts, 252. 18. Sale of vessel, 253. 19. Conveyance of land in another State, 253. 20. Foreign court, 253. 21. A copy of a patent, 253. 22. Certificate; seal,- 253. 23. Foreign judgments, 253. « FORMS. 171. Authentication of Transcript from Justice's Docket, 255. 172. Authentication of Judgment of Foreign Justice, 256. 173. Exemplified Copy of a Judgment or Other Record of Another State, 257. 174. Another Form of Exemplified Copy of Judgment, 260. 175. Exemplified Copy of Judgment of Foreign Country, 261. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXI Deposit in Court. COMMON FOIRHS— Continued. Art. X. Defaults — Taking and Opening, 264. 1. How evidenced, 264. 2. Time in relation to default in pleading, 265. 3. On the submission of a controversy, 266. 4. Infant, 266. 5. The default of a guardian, 266. 6. Upon default taken after substituted service, 266. 7. Proof of the taking of property, 266. 8. An order on default, 266. 9. Motion when defendant in default, 267. 10. In the Federal courts, 267. 11. What is admitted by default, 268. 12. Assessment of damages, 268. 13. Opening default, 269. 14. An affidavit of merits, 269. 15. Receiver, 270. 16. Default on justification of bail, 270. 17. Divorce, 270. 18. Considering merits, 270. 19. Effect of the statute of limitations, 271. 20. After repeated adjournments, 271. 21. Absence of material witness, 271. 22. Giving security, 271. 23. Default in pleading, 271. 24. The negligence of an attorney, 272. 25. Engagement of counsel, 272. 26. Absence of counsel, 272. 27. Laches, 272. FORMS. 176. Affidavit of Merits by Party, 273. 177. Affidavit of Merits by Attorney, 273. 178. Affidavit on Motion to Open Default, 275. 179. Indorsement on Papers of Non-Appearance of Party in Open Court, 275. Art. XI. Deposit in Court, 276. 1. Code provisions, 276. 2. If not authorized by statute, 278. 3. Property subject to deposit, 278. 4. Authority to accept deposit, 278. 5. With whom made, 278. 6. Investment of funds by officer, 278. 7. Payment out of court, 279. 8. Summary proceedings, 279. 9. When depositary is protected, 280. XXll ANALYTICAL TABLE OF CONTENTS, VOL. I. Filing. COMMON FORUS— Continued. FORMS. 180. Order for Payment of Money out of Court, 280. Art. XII. Extension op Time, 281. 1. Distinction between extension and stay, 281. 2. How procured, 281. 3. Tlie Code, 281. 4. Wlien extension begins, 282. 5. An extension to or until, 282. 6. An ex parte stay, 282. 7. Notice of application, 283. 8. Under section 27 of the Statutory Construction Law, 283. 9. A justice of the peace, 283. 10. In summary proceedings, 283. 11. Where there is a monthly tenancy, 283. 12. Periods of " years," 284. 13. Notice of trial, 284. 14. Service of summons after attachment, 284. FORMS. 181. Stipulation Extending Time to Plead and to Accept Short No- tice of Trial, 284. 182. Affidavit to Procure an Extension of Time to Answer or Demur, 285. Art. XIII. Filing, 286. 1. Papers whicb must be filed, 286. The summons and each pleading, 286. All bonds and undertakings, 286. A petition, 287. Injunction, 287. Affidavit on attachment, 287. Arrest, 288. All affidavits used on a motion, 288. An ex parte order of a judge, 288. Upon entering judgment, 288. After a judgment roll is filed, 288. Supplementary proceedings, 288. Notice of filing, 288. 2. .Where and when filed, 288. Judgments shall only be entered or docketed, 288. Order granted in one county entered in another, 289. Change of place of trial, 289. xxm Motions and Orders. COMMON FORMS— Continued: Appellate Division, 289. In all other cases, 289. As to where a return is filed, 290. 3. By whom filed, 290. Upon the successful party neglecting, 290. Duty of the successful party, 290. 4. Eemoving or altering papers on file, 290. A process, pleading or other record, 290. Lost paper, 290. An affidavit or other paper may be stricken from the files, 290. Photographs and measurements under the Bertillon system, 290. Default ; amending complaint ; foreclosure, 291. FORMS. 183. Affidavit to Compel Filing of Summons or Pleading, 291. 184. Order Compelling the Filing of a Summons or Pleading, 291. Art. XIV. FOLIOING, 292. 1. A folio, 292. 2. Papers which must be folioed ; penalty for failure, 293. 3. An affidavit and order extending the time, 293. 4. A judgment, 293. 5. For the purpose of pleading, 293. 6. Verification not part of pleading, 294. FORMS. 185. Notice Indorsed on Paper Returned Because Not Folioed, 294. Art. XV. Indorsement, 295. 1. Title, 295. 2. Attorney's name and address, 295. 8. Two papers bound together, 297. 4. Summons, 297. Art. XVI. Motions and Obdebs, 297. (a) Motions, 299. 1. A motion defined, 299. Enumerated and non-enumerated motions, 299. Enumerated motions, 300. Non-enumerated motions, 300. 2. Title, 300. XXIV ANALYTICAL TABLE OF CONTENTS, VOL. 1. Motions and Orders. COMMON FORTES— Continued. 3. Bringing on motion, 301. (a) Notice of motion ; time, 301. Service by mail, 301. Presumption of delivery, 302. Attorney's card in corner of envelope, 302. Insufficient postage, 302. Irregular service; papers which actually reach attorney, 302. Order shoi-tening time of service by mail, 302. Waiving notice, 303. Sufficiency generally, 303. Alternative time of return, 303. The words, " or as soon thereafter as counsel can be heard," 303. Place of return, 303. When a motion is founded on an irregularity, 303. Signature of attorney, 304. Previous applications, 304. Opening default, 304. (b) Order to show cause, 304. Rule 37, 305. In what cases allowed, 305. Inaugurating special proceeding, 305. Kule 38, 306. Eeturnable in more than eight days, 306. By whom made, 306. In the First Judicial District, 307. Important distinction between a judge's order and a court order to show cause, 308. Statement as to previous application, 309. The rules of court, 309. (e) On whom served, 309. 4. Where heard, 309. Effect of default in action on place of making motion, 310. A motion, upon notice, 310. An ex parte order, 310. Except in the First Judicial District, 311. In the First Judicial District, 311. Enumerated motions at special term; how noticed, 311. Where non-enumerated motions heard; special term, 311. Absence of judge, 312. A motion to vacate a warrant of attachment, 312. An order for the examination of a defendant, 312. A motion for leave to plead over, 313. A petition addressed to a judge, 313. Special term in connection with circuit, 313. Making new motion after refusal, 313. ANALYTICAL TABLE OF CONTENTS, VOL. 1. XXV Motions and Orders. COMMON FORUS—Continued. 5. What will be determined on motion, 314. 6. On what papers heard, 314. Opinion of other court, 314. Answering supplemental affidavits, 314. If a party serves additional affidavits, 315. Affidavits which have not been served, 315. Papers used on previous motion, 315. On enumerated motions at special term, 315. 7. Striking out averments in affidavits, 315. 8. Withdrawing motion, 315. 9. Adjournments of motions, 316. 10. Vacating notice of motion or order to show cause, 316. 11. Only relief demanded granted, 316. 12. Keview by appeal or motion, 316. Alternative orders, 317. 13. Kehearing and renewal of motion_, 318. Difference between motion for rehearing and one to re- new, 318. A renewal of a motion, 318. Adoption of new court rules since previous motion, 318. Based on matter contained in court opinion, 319. Leave granted by another judge, 319. Justice of the Municipal Court, 319. Opening default and setting aside judgment, 319. Denial without prejudice, 319. Payment of costs, 319. The pendency of an appeal, 319. Extension of time by renewal, 319. Before another judge, 320. A motion for a rehearing, 320. Code Civ. Pro. §724, 320. After expiration of time to appeal, 321, Discretion; appeal, 321. 14. Defaults, 321. 15. In any manner altering the affidavits, 321. 16. Nonpayment of costs; preliminary objection, 321. When stay becomes operative, 322. If the order is served by mail, 322. Service of a copy, 322. Entry of and appeal from order, 322. Proceedings while under stay irregular merely, 322. When stay is waived, 323. If a notice of trial is returned, 323. What are motion costs within Code Civ. Pro. § 779, 323. Municipal Court, 324. XXvi ANALYTICAL TABLE OF CONTENTS, VOL. I. Motions and Orders. COMMON FOnKS— Continued. When motion is properly denied, 324. Renewal of motion, 324. 11. Reference to take deposition to use on motion, 324. Where witness required to attend, 325. Older decisions annulled, 325. Before summons served, 325. The deposition of a party, 325. Only a party to the action can apply, 325. Attachment, 325. The nonproduction of an affidavit, 325. A subpoena duces tecum, 326. Affidavit of publication, 326. A motion for a new trial on newly discovered evidence, 326. Witness fees, 326. 18. Reference of motion, 326. 19. Reference to hear and determine practice motion, 326. (b) Orders, 326. 1. An order defined, 326. 2. "An order must be in writing," 327. 3. An entry in the clerk's minutes, 327. 4. An order signed by the clerk, 327. 5. An oral decision, 327. 6. The difference between a judge's order and a court order, 327. 7. Effect of caption on judge's order and vice versa, 328. 8. Default order; relief granted, 329. 9. Opening default order; rehearing; on what papers, 329. 10. Default order; appeal, 329. 11. "Other and different relief," 329. 12. Affirmative relief to party moved against, 330. 13. One order in several actions, 330. 14. Reciting wrong county, 330. 15. Special in place of trial term caption, 330. 16. Reciting papers on which order is granted, 330. 17. Orders granted on petitions, 330. 18. " All pleadings and proceedings," 331. 19. Voluminous and superfluous papers, 331. 20. Papers secretly submitted, 331. 21. Costs on resettlement to recite papers, 331. 22. Appeal from refusal to recite papers, 331. 23. Reciting oral stipulations, 332. 24. Waiver in order; recital, 332. 25. Staying cause after notice for trial, 332. 26. Rule 37 applies only to trial terms, 332. 27. Irregular stay; effect, 332. 28. Settling order, 332. ANALYTICAL TABLE Or CONTENTS, VOL. I. XXVll Motions and Orders. COMMON FORMS— Continued. 29. Effect of resettlement, 333. 30. Resettlement on consent; effect, 333. 31. Incorrect statement in order as being on consent; remedy, 333. 32. Entering order, 333. 33. New or duplicate order, 333. 34. Failure to enter; new motion, 334. 35. Entering order in county other than that in which made, 334. 36. Failure of clerk to transcribe, 334. 37. Order entered in wrong district; how corrected, 334. 38. Entering order as of term when submitted, 335. 39. Filing papers, 335. 40. An ex parte order, 335. 41. Amending and entering nunc pro tunc, 335. An order of reference, 335. An order overruling a demurrer, 335. An order of publication, 335. Adjourned special terra, 336. An order upon counsel, 336. 42. Retroactive order, 336. 43. Special term amending order made at another special term, 336. 44. Docketing order for payment of money as judgment, 336. 45. Order fixing attorney's compensation, 336. 46. Entering judgment on order for payment of money, 336. 47. Getting rid of order, 337. 48. Failure to disclose all facts, 337. 49. The court's discretion, 337. 50. Power of court to modify own order, 337. 51. When order may be opened, 337. 52. Moving to vacate and appealing, 337. 53. Successful party moving to vacate, 338. 54. Accepting favor, bound by condition, 338. 55. Acting under irregular order, 338. 56. Foreign order, 338. 57. Res adjudicata, 338. 58. Who may serve order, 338. 59. How service made, 339. 60. Exact copy, 339. 61. Serving judge's order; exhibition of signature, 339. 62. Serving resettled order, 339. 63. Sheriff's certificate of service of order, 339. 64. Premature notice of entry, 339. - 65. Irregular and void orders, 340. 66. Collateral attack of order, 340. 67. County judge's order in an action in another court, 340. Injunction, 341. XXVUl ANALYTICAL TABLE OF CONTENTS, VOL. I. Motions and Orders. COMMON FOBMS— Continued. Temporary injunction in foreclosure, 342. Custody of children, 342. Vacating supplementary proceedings, 342. Habeas corpus, 342. A special surrogate, 342. 68. Order by Supreme Court judge in county court action, 343. When only a judge may make order, 343. 69. Title when made by Supreme Court judge, 343. FORMS. 186. Notice of Motion, 343. 187. Notice of Motion, Another Form, 344. 188. Notice of Motion for Permission to Serve Additional Affidavits and to Enlarge Belief Supplementing Motion Already Made, 345. 189. Notice to Bring on Motion after Indefinite Adjourument, 345. 190. Special Appearance Clause in Notice of Motion, 346. 191. Affidavit in Support of Motion, 346. 192. Affidavits to Procure the Deposition of a Witness, to be Used on a Motion for a New Trial, 349. 193. Affidavit of Attorney to Procure Deposition of Witness, 353. 194. Affidavit as to Kefusal of Witness to Malce Affidavit, 354. 195. Order to take the Deposition of a Witness to be used on a Motion, 355. 196. Subpoena to Witness to Make Deposition for Use on a Motion, 357. 197. Notice of Hearing before Referee to take Deposition of Witness When Time is not Fixed in the Order, 358. 198. Report of Referee Appointed to Take Deposition to be Used on a Motion, 358. 199. Order to Show Cause (General Form), 359. 200. Order to Show Cause, Another Form, 861. 201. Recital in an Order to Show Cause Allowing Further Papers to be served before Hearing Motion, 362. 202. Counter Motion, 362. 203. Recital in Notice of Motion to Strike Enumerated Motion from the Calendar, for Failure to Serve Papers, 363. 204. Order of Judge Transferring a Motion Returnable Before Him- self to Another Judge, 364. 205. Stipulation Transferring Motion Indorsed on Papers, 364. 206. Recital in Notice of Motion for Rehearing, 365. 207. Recital in Motion to Renew, 365. 208. Affidavit on Motion to Correct Findings, 365. 209. Motion to Correct and Resettle Findings, 366. 210. Motion to Amend or Resettle an Order, 367. 211. Stipulation Indorsed on Motion Papers Extending Time for a Hearing, 367. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXIX Notices. COMMON FOnmS— Continued. 212. Note of Issue of Motion, 368. 213. Caption, Court Order, 368. 214. Caption of Judge's Order, 370. 215. Court Order, General Form, Made on Notice, 371. 216. Court Order, Another Form, 372. 217. Court Order Made Ex Parte, 372. 218. Judge's Order, General Form, Made on Notice, 373. 219. Judge's Order, Another Form, 373. 220. Order made in Open Court Without Notice, 374. 221. Recital in Order of Stipulation Made in Open Court, 375. 222. Order Made on Consent, 375. 223. Clause in an Order as to Special Appearance and Objection to Jurisdiction, 376. 224. Recital a,s to "Waiver of Objection to Jurisdiction, 376. 225. Clause in an Order Overruling a Preliminary Objection, 377. 226. Order on Default of Party against Whom Motion is Made, 377. 227. Order Dismissing Motion on Default of Moving Party, 378. 228. Clause in Order Dismissing a Motion Without Prejudice, 378. 229. Justice's Order that Additional Affidavit may be Read on a Motion before him. Not yet Heard, 378. 230. Recital that the Moving Party has complied with the Conditions of a Leave to Renew Contained in a Former Order, 379. 231. Recital Wliere Motion is Not Heard When Originally Noticed, but at a DiHerent Term, upon a New Notice, 379. 232. Recital in Order Denying Motion and Vacating Stay, 380. 233. Recital Denying Motion on Condition, 380. 234. Order Declaring Waiver of Favor Granted in Previous Order, 381. 235. Recital Denying Motion because of Interlineations and Erasures in Moving Papers, 381. 236. Specifying Motion Papers, 382. 237. Recital of Document Theretofore Filed, 382. 238. Direction that Scandalous and Impertinent Matter be Ex- punged from the Papers Submitted on a Motion, 383. 239. Suppressing Affidavit Read on Motion because of Scandalous and Impertinent Matter contained therein, 383. 240. Recitals as to Costs, 385. 241. Consent to Form of Order and Waiver of Notice of Settle- ment, 386. 242. Notice of Settlement of Order, 386. 243. Notice of Entry of Order, 386. 244. Recital in Resettled Order, 387. Art. XVII. Notices, 388. 1. In general, 388. 2, Right to notice, 389. XXX ANALYTICAL TABLE OF CONTENTS, VOL. I. Oaths. COMMON TOB.MS— Continued. 3. Notice to an attorney, 389. 4. Bankruptcy ; notice to copartner, 389. 5. Written notice, 389. 6. Address and signature, 390. 1. Notice of bankruptcy; promissory note, 391. FORMS. 245. Notice Indorsed on Paper Eeturned, 391. 246. Notice to Produce Papers at Trial, 391. 247. Notice of Substitution of Judge or Officer to Hear Special Pro- ceeding, 392. 248. Notice of Payment of Money Into Court, 393. 249. Notice Requiring Party to Appoint a New Attorney Upon the Death or Disability of Former Attorney, 393. Art. XVIII. Oaths, 394. 1. The constitutional provision, 394. 2. When proceedings are void, 395. 3. Unconstitutional statutory test oaths, 395. 4. General mode of swearing, 396. 5. When laying of the hand upon the Gospels is dispensed with, 396. 6. When affirmation to be made, 396. 7. Other modes of swearing, 396. 8. Swearing persons not Christians, 396. 9. Court may examine witness, 397. 10. Swearing falsely in any form, perjury, 397. 11. Substantial compliance with the form prescribed, 397. 12. Affidavit signed but not orally sworn to, 397. FORMS. 250. Constitutional Oath of Office, 398. 251. Oath of Referee, 399. 252. Oath of Commissioner or Referee in an Action for Dower, 400. 253. Oath without the Gospels, 400. 254. Oath Administered on the Gospels, 401. 255. Affirmation, 401. 256. Oath of the Foreman of Grand Jury, 401. 257. Oath of the Grand Jury, 401. 258. Proclamation on Swearing the Juror, 402. 259. Oath of Petit Jurors in Civil Cases, 402. 260. Juror's Oath on a Trial for Misdemeanor, 402. 261. Oath of Juror, 402. 262. Oath of a Witness in a Civil Action, 403. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXxi Offer of Judgment. COMMON TOBMS— Continued. 263. Oath of a Witness on a Trial for a Misdemeanor, 403. 264. Oath of a Witness on a trial for Felony, 403. 265. Oath of Interpreter, 403. 266. Oath of Interpreter to a Deaf and Dumb Witness, 404. 267. Oath of a Party or Interested Witness Preliminary to Proving the Handwriting of a Subscribing Witness, 404. 268. Oath of Party or Witness, to Admit Evidence of the Contents of a Paper not Produced, 404. 269. Oath to be Administered to a Witness before Arbitrators, 404. 270. Oath of Poor Witness on Application for Expenses, 405. 271. Oath on Application of Juror or Constable for a Remission of a Fine, 405. 272. Oath on Application to Excuse or Discharge a Juror or Con- stable, 405. 273. Oath of Constable to Keep Jury on Adjournment, 406. 274. Oath of Constable on Retiring with a Jury or Juroi-s on Leave, 406. 275. Oath of Constable Who Attends a Jury When They Retire to Consider of the Vex-dict in Civil and Criminal Actions, 406. 276. Oath of Constable who Attends a Jury When they Retire to Con- sider their Verdict in a Justice's Court, 407. Art. XIX. Offeb of Judgment, 407. 1. in genei-al, 407. 2. Offer to liquidate damages conditionally, 408. 3. Effect of refusal of offer, 408. 4. Defendant's offer to compromise ; proceedings thereon, 408. 5. Several defendants, 409. 6. An offer by one partner, 409. 7. Severing action, 409. 8. Ambiguous offer, 410. 9. Must include costs, 410. 10. " Costs to date," 410. 11. One of several claims, 410. 12. Replevin, 410. 13. Equitable actions, 411. 14. Discretionary costs, 411. 15. Foreclosure, 411. 16. Mechanic's lien, 411. 17. Discretion of court, 412. 18. Offer and acceptance, by whom subscribed, 412. 19. Signature, 412. 20. After appeal from justice's court to county court, 413. 21. The failure to annex an affidavit of the authority, 413. XXXll ANALYTICAL TABLE OF CONTENTS, VOL. I. Offer of Judgment. COMMON FOKM.S— Continued. 22. The service of a copy of the offer and affidavit, 413. 23. Acknowledgment of offer, 414. 24. Acceptance, 414. 25. Time of acceptance, 414. 26. An offer served less than ten days before the trial, 414. 27. Eetraction of offer, 415. < 28. A second offer, 415. 29. Amendment of offer, 415. 30. Amendment increasing demand in complaint, 415. 31. Determination whether an offer is more favorable than a recov- ery, 415. 32. If the damages are unliquidated, 416. 33. " Full sum sued for," 416. 34. Costs cannot be included in a recovery, 416. 35. Keduotion of judgment by appellate court, 416. 36. Additional allowance, 416. 37. Fraud ; subsequent action, 417. 38. An assignee, 417. 39. Bringing notice to jury of unaccepted offer, 417. 40. Extinguishing counterclaim as affecting amount of recovery, 417. '41. Answer containing counterclaim served before offer, 418. 42. Offer served before answer containing counterclaim, 418. 43. Offer and answer served same day, 418. 44. If a counterclaim which is extinguished arises out of the same transaction, 419. 45. Plaintiff's offer to compromise counterclaim; proceedings thereon, 419. FORMS. 277. Offer by Defendant to Liquida.te Damages Conditionally, 420. 278. Acceptance by Plaintiff of Offer to Liquidate Damages, 420. 279. Offer by Defendant to Allow Judgment to be Taken Against Him, 421. 280. Offer of Judgment in Mechanic's Lien Case, 421. 281. Offer of Judgment in a Mechanic's Lien Case, with Additional Offer of Deficiency Judgment, 422. 282. Offer by Plaintiff, When Defendant sets up a Counterclaim, 422. 283. Affidavit of Attorney as to Authority to Make Offer of Judg- ment, 423. 284. Attorney's Affidavit of Authority to the Entry of Judgment against Joint Defendants, 423. 285. Affidavit of Attorney as to Authority of Attorney to Accept Offer of Judgment, 424. 286. Acceptance by Plaintiff of the Offer of Defendant, 424. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXXIU Petitions. COMMON FOBMS— Continued. 287. Acceptance by Defendant of Plaintiff's Offer for Judgment, 425. 288. Judgment for Plaintiff on Filing Offer and Acceptance, 425. 289. Judgment on Acceptance by Defendant of Offer of Plaintiff, 426. Art. XX. Payment into Court, 427. 1. Distinction between payment and deposit in court, 427. 2. Unless authorized by statute, 427. 3. What Code provides, 427. 4. In what courts tender and payment may be made, 428. 5. Notice of payment into court, 428. 6. Necessity of payment into court to keep tender good, 428. 7. A conditional tender, 429. 8. " The giving of notice," 429. 9. Pleading payment into court, 429. 10. Money paid into court belongs to plaintiff in any event, 430. The common-law rule, 430. 11. Tender after suit brought and less than ten days before trial, 430. 12. Continuing suit after acceptance of tender, 431. FORIMS. 290. Notice of Payment into Court of Amount Tendered by Defend- ant, 431. Art. XXI. Petitions, 432. 1. In general, 432. 2. "A petition," 432. 3. Petitions are of two kinds, 432. 4. Petition as affidavit, 432. 5. Usually a petition is proper only when specifically authorized by statute, 432. 6. The Code, 433. In a surrogate's court, 433. The surrogate may, at any time, require a party to file a written petition, 433. Compelling claimants to present claims, 433. Accounting of executor or administrator, 433. Kevocation of probate of will, 433. Ancillary letters testamentary or of administration, 433. Oral petitions, 433. 7. An application for an appointment of a general guardian, 434. 8. Writ of habeas corpus, 434. 9. Writ of habeas corpus to testify, 434. 10, Prosecuting and defending as poor persons, 434. XXXIV ANALYTICAL TABLE OF CONTENTS, VOL. I. Publication. COMMON FORUS— Continued. 11. Change of name, 434. 12. Insolvent debtor, 434. 13. Discovery; necessity of petition, 434. 14. A subpoena to a witness under a deposition, 435. 15. Proceedings to sell, mortgage or lease real estate belonging to an incompetent, 435. 16. Infants, 435. 17. Orders granted on petitions or relating thereto, 435. 18. Bill inequity as petition, 435. 19. An ancillary proceeding in an equity suit, 435. 20. Recital of jurisdictional facts in petition, 436. 21. Docketing judgment or order founded on petition, 436. FORMS. 291. Petition, General Form, 436. 292. Petition in Action in Federal Court, 437. Art. XXII. Publication, 438. 1. An affidavit to secure an order for the publication of a sum- mons, 438. 2. Publishing of a summons for "not less than once a week for six successive weeks," 438. 3. For the purpose of reckoning the time within which the defend- ant must appear or answer, 439. 4. The day of the last publication, 439. 5. The service of a citation in a surrogate's court, 439. 6. " The omission to publish once a week for six successive weeks is not a mere irregularity," 440. 7. Amendment of summons during publication, 440. 8. A summons may be amended nunc pro tunc after publication, 440. 9. Death of party pending publication, 440. 10. Death of plaintiff, 441. 11. Death of defendant, 441. 12. Publishing a summons a longer time than required, 441. 13. The last day, 441. 14. Domicile of infants, 441. 15. Sale under execution; time of publication, 441. 16. Imibediately preceding, 442. 17. Postponement of sale; additional advertising expense, 442. 18. Publishing orders in an action brought for the collective benefit of creditors, 443. 19. A creditor's action, 443. 20. A calendar day, 443. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXXV Publication. COMMON, VOBMS—Continued. 21. In computing any specified number of days, weeks or months, 443. 22. A certain number of days, 444. 23. Daily, Sunday excepted, 444. 24. Saturday and Monday successive days, 445. 25. Sunday, 445. 26. Holiday, 445. 27. The period of publication, 445. 28. A week, 445. 29. A certain number of weeks, 446. 80. Splitting weeks; computing time, 446. 31. A month, 447. 32. Conflict between Code and other statutes, 447. 33. Code provisions as to time of publication, 447. Once in each week, for at least three successive weeks, 447. Once a week, for not more than three weeks, 447. Once in each of the six weeks immediately preceding a sale, 448. Once in each week, for six successive weeks, 448. Once in each week for the four weeks immediately preceding the application, 448. Once in each week, for six successive weeks, 448. At least twice in each week, for three successive weeks, 448. Once in each of the six weeks, immediately preceding the sale, 448. For four weeks, 448. At least once in each«week, for twelve successive weeks, 448. Once in each week, for at least three successive weeks, 448. At least once in each week, for three successive weeks, 448. At least once in each of ten weeks immediately preceding the day on which cause is to be shown, 448. At least once in each of twelve weeks immediately preceding the day of sale, 448. At least once in each week, 448. Once in each week, for six successive weeks, 448. Once in each week, for four successive weeks, 449. At least once in each of the three weeks immediately preced- ing the time fixed therein for showing cause, 449. For three successive weeks, 449. Twice a week, for four weeks, 449. Once in each week, for three montlis, 449. Once a week, for three weeks, 449. Once in each week, for six months, 449. ^ 34. Definition of newspaper, 449. 35. Supplement, 449. 36. A publication must be in the paper designated, 450. XXXVl ANALYTICAL TABLE OF CONTENTS, VOL. I. Returns. COMMON FOB.US— Continued. 37. Slight variation, 450. 38. Paper most likely to give notice, 450. 39. Sunday paper; contracts with, 450. 40. " No newspaper published in county," 450. 41. If the publication is in two newspapers, 451. 42. Publication on the same day in each week, 451. 43. Legal fees for publishing summons, 451. 44. Compelling publisher to make affidavit of publication, 452. 45. The expenses of publication, 452. 46. Proof of publication, 452. 47. Piling affidavit of publication nunc pro tunc, 453, 48. An affidavit by an "editor," 453. 49. "Manager," 453. 50. " Proprietor," 453. FORMS. 293. Affidavit of Publication, 453. 294. Affidavit of Publication under Foreclosure by Advertisement, 454. Art. XXIII. Returns, 455. 1. A return, 455. 2. Duty of the officer, 455, 3. Returns to state writs, 455, 4. Verification of return, 456. 5. A defendant must sign, 456. 6. At common law, 456. "7. Omission of signature an amendable defect, 456. 8. Imperfect return cured by verdict, 456, 9. Omitting the venue, 456. 10. Further return, 456. 11. Limiting time of return, 456. 12. A former sheriff, 457. 13. The fees, 457. 14. The return to a writ of certiorari, 457. 15. Making a return to a state writ is not an official act, 457. 16. Only jurisdictional facts, 457. 17. Must file undertaking, 457. , 18. An order to show cause why a mandamus should not issue cannot take the place of tlie mandamus, 457. 19. Officers securing extensions, 458. 20. Deputy sheriff's return conclusive as against sheriff, 458, 21. A constable need not indorse, 458. 22. A constable is absolutely liable, 458. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXXVll Stay of Proceedings. COMMON FOBMS— Continued. 23. It is from the date of the return, 458. 24. Return of an attachment, 459. 25. Objections to legal sufficiency, 459. 26. An alternative writ of prohibition becomes absolute, 459. 27. A return of the inquisition and commission, 459. 28. Notifying jurors, 459. 29. Collection of a fine, 459. 30. In certain marine oases, a return by the sheriff, 460. 31. In proceedings to enforce liens on vessels, 460. FORMS. 295. Return of Service of Process; Short Form, 460. 296. Return to Writ of Certiorari to Review, 461. 297. Return to a Writ of Habeas Corpus to Inquire into the Cause of Detention, 462. 298. Return to Writ of Certiorari to Inquire into the Cause of De- tention, 464. Art. XXIV. Stat of Proceedings, 465. 1. A stay of proceedings, 465. Among reasons for, 465. A conflict in legal decisions, 465. A court of record will refuse to stay by order a proceeding that is pending in another court of record, 465. 2. A perpetual stay of execution on a judgment is proper, 466. 3. Power of court to grant stay, 466. Vexatious action, 466. An order for inspection, 466. Stay pending writ of error, 466. Appeal by executive city official acts as stay ex propria vigor e, 466. At common law, it seems, a certiorari carried with it a stay, 467. Execution of a money judgment shall not be stayed without security, 467. Return of commission, 467. 4. Where the court or judge granting the stay has no jurisdic- tion, 467. 5. In the action itself, 467. A motion for a stay should be made on notice, 467. A stay of proceedings in one action not proper in an- other, 467. Stay by special term pending appeal to Court of Appeals, 468. XXXviii ANALYTICAL TABLE OF CONTENTS, VOL. I. Stay of Proceedings. COMMON FORMS— Continued. 6. Stay for nonpayment of costs of a former action, 468. Wliere no proof is offered in opposition, 468. Order too broad, 468. Stay for nonpayment of costs improperly granted, 468. Irregularity only, 468. 7. Stay for nonpayment under Code Civ. Pro. § 779, 469. Ten days must elapse, 469. Code Civ. Pro. § 779, regarding stay for nonpayment of costs, is applicable, 469. Where the plaintiff obtains an ex parte order, 469. Only an irregularity, 469. An order conditioned on the payment, 470. The order awarding costs must be served, 470. Where a party, stayed for nonpayment of costs, subsequently pays those costs, and, on the same day that he pays, serves notice of trial for the trial term next ensuing, 470. Waiver of this stay, 470. " Without Prejudice," 470. Stayed, although a poor person, 470. 8. Where cases are similar, 471. Where a defendant is sued individually in one action, 471. Where a referee has two cases and It is clear that the main defense in each will be the same, 471. Where practically the same parties are at law in two ac- tions, 471. When stay is improperly granted, 471. An action for damnges for trespass on real property, 471. If two or more defendants are litigating, 472. In a foreclosure proceeding, 472. 9. Where a counterclaim arising out of the same series of transac- tions is brought, 472. Where a party is sued for damages for breach of a contract, but puts forward an equitable counterclaim, 472. Where a party sues in one county, 472. It seems that " equity is not opposed to a speedy trial of a case," 473. 10. Code Civ. Pro. § 1328, 473. 11. Stay of proceedings when judgment is interlocutory, 473. Whei-e, in an interlocutory judgment, one of the things re- quired is the delivery of stock, 474. 12. Where one party sues another in partition, 474. 13. In an action to recover real property, 474. 14. Where an application to be made a party plaintiff is denied, 474. 15. Bias no ground for stay, 474. 16. Can move for alimony despite stay, 475. ANALYTICAL TABLE OF CONTENTS, VOL. I. XXXIX Stipulation. COMMON FORMS— Continued. 17. An order vacating an attachment, 475. 18. Changing venue; stay of proceeding, 475. Appeal from order denying change of venue, 475. 19. Where the plaintiff in a replevin suit seeks to substitute a third person, 475. 20. The execution of a decree, in sm-rogate's courts, 476. Where a party seelis to stay an accounting, 476. 21. Inducing a bona fide holder of a mortgage to foreclose it, 476. 22. Not limited to those acting in representative capacity, 476. 23. An order staying all proceedings, except to appeal, is proper, 476. 24. In the municipal court, 477. Where judgment has been recovered in the municipal court, 477. 25. Code Civ. Pro. § 2254, 477. 26. Kule 37 of the General Rules of Practice, 477. FORMS. 299. Injunction Order Containing a Stay of Proceedings, 478. 300. Stay Contained in an Order for a Commission, 479. 301. Stay Until After Determination of an Appeal in a Similar Ac- tion, 480. 302. Order Denying a Motion for a Stay, 480. Art. XXV. Stipulation, 481. 1. A stipulation, 481. 2. Written stipulations are preferable in all cases, 481. 3. The limits within v^hich enforceable stipulations may be made, 481. 4. "Parties by their stipulations may in many ways make the law," 482. 5. May stipulate away questions of jui-isdiction, 482. 6. These broad powers apply to civil and not to criminal cases, 482. 7. The unconstitutionality of a statute, 482. 8. To take deposition in negligence case, 482. 9. Stipulating away the right to appea;l, 483. Where counsel send a case to a referee, 483. Where an attorney generally orally stipulates not to take an appeal, on condition that opposing counsel waives costs, 483. 10. An oral stipulation to adjourn court to a place other than the courthouse is invalid, 483. An order of reference by stipulation in a municipal court of the City of New York is absolutely void, 483. xl ANALYTICAL TABLE OF CONTENTS, VOL. I. Stipulation. COMMON FORMS— Continued. 11. Does not apply to an agreement for settlement, 484. 12. To fix a referee's fees, 484. If both parties stipulate in writing that the referee may charge such fees "as he deems proper," 484. 13. Compensation of receiver irregularly appointed, 484. 14. Stipulating away a defense, 484. If parties limit their controversy, 485. Without pleading, 485. Specific questions referred, 485. 15. Verdicts in judge's absence, 485. This practice, however, is not favored, 485. Without a stipulation by counsel, 485. 16. Merging two actions, 483. Stipulation not limited as to time, 486. Former decision conclusive, 486. 17. Extensions of time by stipulation, 486. Extensions given by each side, 486. 18. A stipulation for the doing of certain things, not all of which are part of the proceedings themselves, 487. 19. Enforcing stipulation by action, 487. 20. A city attorney has power, it seems, to bind the city, 487. 21. Stipulations must be in writing, 487. An agreement for a further adjournment of a case, 487. 22. Where it is stipulated that a witness is not to be examined as to his competency as an expert, 488. 23. Stipulation construed strictly, 488. Evidence to prove the intention of a stipulation, 488. Meaning-of "Final Judgment," 488. Where a town obtains, agaiust a railroad company, a manda- mus, 488. When prisoner has been ordered extradited, 489. 24. Stipulation at variance with established rules of evidence, 489. 25. Lack of stipulation for judgment absolute, 489. 26. Relief from stipulations, 489. Must show good ground for relief, 490. Stipulating away defense, 490. Inadvertence, 490. If, soon after an action is begun, the parties stipulate that the issues in a certain other action shall be " conclusive upon and as to the issues " in their action, 490. Relief from a stipulation made by a plaintiff without the knowledge of his attorneys, 490. To agree to pay, out of a fund in court, 491. If an attorney stipulates that his opposing attorney may have until a certain day to deliver his brief to the. referee 491. ANALYTICAL TABLE OF CONTENTS, VOL. I. xli Subpoenas. COMMON FORMS—Continued. An oral stipulation which has caused a party to be misled, 491. 27. Stipulation disregarded, 491. Stipulation for decision on pleadings, 491. FORMS. 303. Form of Stipulation Extending Time to Answer, 492. 304. Stipulation to Submit to a Keferee Certain Specific Questions, 492. 305. Stipulation for a Deposition, 494. 306. Stipulation Not to Appeal, 495. 307. Stipulation to Submit on an Agreed Statement of Facts, 496. 308. Stipulation of Case on Appeal, 497. Art. XXVI. SuBPCBNAS, 498. 1. A subpcena, 498. 2. Issued by attorney, 498. 3. Who may issue subpoena, 499. Supervisors, 499. Commissioner appointed by foreign court, 499. Testimony must be taken in this State, 499. Legislative committee, 499. A sheriff, 499. 4. If subpoena is upon a commission from a Pennsylvania Court, 499. 5. Where person is subpoenaed to testify in supplementary proceed- ings, 500. 6. Defective subpoena, 500. 7. Notice cannot take place of subpoena, 500. 8. Where and by whom served, 500. In a county court, 500. In a surrogate's court, 500. In the municipal court of the City of New Tork, 500. In a justice's court, 501. Service may be made by a private person, 501. 9. Subpoenaing hospital surgeon, 501. 10. Expenses incurred in serving, 501. 11. When a party to the action is to be examined, 501. 12. Paper in witness's possession, 502. 13. Penalty for disobeying subpoena, 502. Penalty for disobeying subpcena duces tecum, 502. Fined, and must pay damages, 502. Requisites in action for damages, 502. If no damage is caused, 502. xlii ANALYTICAL TABLE OF CONTENTS, VOL. I. Suggestions on the Record. COMMON FOBUS— Continued. 14. Time allowed witness, 503. Unieasonable requirement, 503. 15. Subpcena duces tecum, 503. Code Civ. Pro. §§ 867, 868, 503. Time to be given witness under subpcena duces tecum, 503. Disclosure of secrets, 503. 16. What may be produced under duces tecum, 503. Pieces of iron; patterns, 504. "Watch, 504. A record, 504. 17. Description necessary, 504. 18. On whom served, 504. In the case of a corporation, 504. On the cashier, and not on a clerk, 504. 19. Powers of commissioner from another State, 504 20. In attachment proceedings, 505. 21. If books are numerous, 505. 22. Relief therefrom, 505. 23. Amount of witness's fees, 505. An attorney of record, 505. Even if not subpcenaed, 505. Witnesses coming at request, but without subpoena, 505. Witnesses need not refund, 506. 24. For traveling expenses, 506. A nonresident witness, 506. Mileage from temporary residence, 506. From city where witness's business is, 506. If a witness travels the increased distance solely to testify, 506. Mileage only once, 506. 25. Conditional expert witness fee, 506. FORMS. 309. Subpcena, General Form, 507. 310. Subposna, New York Trial Term, Issued by Order of Court or Judge, 508. 311. Subpcena Duces Tecum, 509. 312. Affidavit of Service of Subpoena, 510. Art. XXVII. SuGGESTiosrs on thb Rbcobd, 510. 1. The death of a party, 510. If the cause of action does not survive, 511. 2. After an ibfant has attained his majority, 511. The suggestion may be oral or written, 511. ANALYTICAL TABLE OF CONTENTS, VOL. I. xliii Tender. COMMON FORMS— Continued. FORMS. 313. Suggestion in Open Court of Death of a Party. To be Entered in Minutes, 512. 314. Suggestion that an Infant Party has attained his Majority. To be Entered on the Minutes, 512. Art XXVni. Tbnbbb, 613. 1. A tender, 513. 2. The effect of a proper tender, 513. 3. Tender before and after suit, 513. 4. A tender after suit, 514. 6. Tender before sei-vice, but after the summons is placed in the hands of the sheriff, 514. 6. If, with interest added, the amount of the recovery is greater than the amount tendered, 514. 7. Necessity of payment into court after tender, 515. 8. In what courts tender after suit may be made, 515. 9. Acceptance of tender, 515. 10. The amount tendered and paid into court belongs to the plaintiff irrespective of the result of the trial, 516. 11. If the tender is conditional, 516. 12. Demanding receipt, 517. 13. Present ability to perform, 517. 14. A mere verbal offer to pay is not a tender, 518. 15. How tender made, 518. 16. A check, if not objected to, 519. 17. If the check is uncertified, 519. 18. Promissory note, 519. 19. Mortgage; foreclosure; keeping tender good, 520. 20. Demanding satisfaction of mortgage, 521. 21. Holiday, 521. 22. A tender before the due date, 521. 23. To whom made, 521. 24. Affecting interest, 521. 25. When party is excused from making tender, 522. 26. Basis of aflSrmative relief, 522. 27. A tender must be pleaded, 523. 28. Eescinding tender, 523. 29. Waiving notice of payment into court, 523. 30. Trial after tender not accepted, 524. FORMS. 315. Notice of Acceptance of Tender After Action Brought, 525. Xliv ANALYTICAL TABLE OF CONTENTS, VOL. I. Verification. COMMOISr FORMS— Continued. Art. XXIX. Verification, 525. 1. In general, 526. 2. A complaint to be used as a pleading merely, 526. 3. The Code requirements, 526. Answer denying the incorporation of the plaintiff, 526. Action against joint debtors, 526. Return to a writ of habeas corpus, 527. Insolvent debtors, 527. Summary proceedings, 527. Sale of infant's land, 527. A petition to change a name, 527. Surrogate's requirements, 527. Petition or answer in condemnation proceedings, 527. 4. Dilatory defenses to be verified, 527. 5. An amended complaint, 527. But a verification is no part of a complaint, 527. If an unverified complaint is served, the plaintiff cannot sub- sequently verify the complaint, 527. If an unverified complaint is served on two or more defend- ants, 528. 6. Pleadings subsequent to one which is verified, 528. 7. The verification of a pleading may be omitted, 528. When defendant is not excused from verifying his answer, 529. In an action for libel, 529. In an action for negligence, 529. In an action for divorce, 529. 8. Counterclaim to unverified complaint, 529. 9. By whom made, 530. (a) By the party, 530. (b) If there are two or more parties united la interest and pleading together, 530. (c) If a domestic corporation, 530. (d) The People of the State, 530. (e) A foreign corporation, 530. (f) If the party is not within the county where the attorney resides, 530. (g) If the action or defense is founded upon a written instru- ment for the payment of money only, 530. (h) Where all the material allegations of the pleading are within the personal knowledge, 530. 10. An officer of a domestic corporation must be deemed a party, 530. 11. A director of a domestic corporation, 530. 12. An agent of a domestic corporation, 531. 13. Verification by foreign corporation, 531. ANALYTICAL TABLE OF CONTENTS, VOL. I. xlv Verification. COMMON FORMS— Continued. An officer of a foreign corporation is an agent of the corpora- . tlon, ,531. 14. Where the affidavit of verification is made by a person other than the party, 531. 15. " The reason why it is not made by the party," 531. 16. Agent or attorney; personal knowledge, 532. 17. All allegations positive, 532. 18. Averments positive but verification shows allegations are on in- formation and belief, 532. 19. If an attorney verifies a complaint without authority, 533. 20. A substantial compliance, 533. 21. An answer verified by one only, 533. 22. One of two partners, 533. 23. The remedy for a defective verification, 533. 24. Evidence, 534. 25. Pleading as affidavit, 534. FORMS. 316. Verification by a Party, 534. 317. Verification by Officer of a Domestic Corporation," 535. 318. V^erification of a Pleading on Behalf of the People of the State or Public Officer in their Behalf, by a Party who is Acquainted with the Facts, 535. 319. Verification by Attorney or Agent of Foreign Corporation, Where the Allegations are Made Positively and Not On Information and Belief, 536. 320. Verification by Agent or Attorney of foreign Corporation Where Pleading is on Information and Belief, 536. 321. Verification by Attorney of Foreign Corporation Where the An- swer Alleges that the Defendant has no Knowledge or Informa- tion Sufficient to Form a Belief, 537. 322. Verification by Attorney Where Party is not Within the County Where the Attorney Resides or Has His Office; 538. 323. Verification by Agent or Attorney Where all the Material Allega- tions of the Pleading are Within his Personal Knowledge, 539. 324. Verification Where the Pleading is Founded Upon a Written In- strument for the Payment of Money Which is in the Possession of the AgeAt or Attorney, 540. Xlvi ANALYTICAL TABLE OF CONTENTS, VOL. I. Disbarment. CHAPTER VI. ATTOKNErS. Art. I. Admission to Pkaotiob, 541. 1. An attorney at law, 541. Must be licensed, 541. In justices' courts, 542. 2. Bar examination, 542. Applicants must be citizens, 542. In charge of State Board, 542. Topics covered, 542. 3. Preliminary proofs, 543. Table of requirements, 543, 544, 545. A person who was a law clerk in New TorkX^ity, but had been admitted to the Bar in New Jersey, 545. Indian admitted to examination, 545. May exempt law school graduates, 546. 4. Proof of good moral character, 546. Decision not reviewable, 546. 5. Registration with clerk of Court of Appeals, 546. 6. Admission of citizen of another State or country, 547. Kesident of adjoining State, 547. No absolute right to admission, 547. Italian lawyer refused admission, 547. FORMS. 325. Affidavit in Support of Application for Permission to Try the Bar Examination, 548. 326. Certificate that the College from which the Applicant was Grad- uated Maintains a Satisfactory Standard, 550. 327. Certificate of Commencement of Clerkship, 551. 328. Affidavit of Service of Clerkship, 552. 329. Certificate of Law School Attendance, 553. 330. Paragraph to be Inserted in Applicant's Affidavit, in Place of Paragraph Regarding Graduation from a College, 553. 331. Certificate of Good Moral Character, First Judicial Department, 554. 332. Oath to be Subscribed by Person Admitted to Practice as an At- torney, 554. Art. II. Disbarment, 555. 1. The duty to disbar, 555. Disbarred ipso facto, 555. ANALYTICAL TABLE OF CONTENTS, VOL. I. xlvii Compensation. ATTORNEYS— Cojitmwed. 2. By whom proceedings are instituted, 555. The prescribed procedure, 555. Dismissed for defects, 556. Service by mail, 556. Certainty of proof, 556. Pleadings, not evidence, 556. Not criminal proceedings, 556. 3. Surrogate v\rho practices as attorney, 556. Remedy of impeacliment exclusive, 556. 4. The power to discipline, 557. Must retain good character, 557. 5. Grounds for disbarment, 557. Paying outsider to obtain retainers, 557. Selling out client, 557. Directing illegal seizure, 557. FORMS. 333. Notice to the Accused Attorney, 558. 334. Petition in Disbarment Proceedings, 559. 335. Order of Disbarment, 560. Art. III. Compensation, 561. 1. Employment and performance both necessary, 561. What plaintiff must prove, 561. When relation begins, 562. No services performed for six years, 562. The Statute of Limitations, 562. 2. Measure of value, 562. Fifty per cent not per se unconscionable, 562. " The general rule," 562. 3. Percentage on principal and interest, 563. Interest on his share only, 563. 4. Percentage on annuity, 563. 5. Services under unconstitutional statute, 563. 6. When contract rescinded, 563. 7. May recover on quantum meruit, 563. If action is brought in Municipal Court, 564. May sue for agreed sum, 564. 8. Cannot appropriate alimony, 564. 9. When payment not voluntary, 564. 10. Costs, 564. Restoration of costs, 564. Discontinuance without arranging for costs, 565. 11. An order to submit to a referee the question of an attorney's fees, 565. Xlviii ANALYTICAL TABLE OF CONTENTS, VOL. I. Actions and Proceedings between Attorney and Client. ATTOKN'EYS— Continued. Art. IV. Lien, 565. 1. Lien of an attorney, 565. Growing tendency to enforce it, 565. 2. The statutory lien, 565. All the world must take notice, 566. Applies to sale of judgments, 566. Summary decision, 566. Action under § 66 is proper only between attorney and cli- ent, 566. No action need have commenced, 566. Lien independent of statute, 566. 3. Effect of transfer of action, 567. 4. Lien should be protected, 567. 5. Suit for alienating affections, 567. 6. When partition suit is settled, 567. 7. Unconscionable agreement, 567. 8. A party to an action is only secondarily liable to the attorney of the adverse party, 568. 9. Set-off of judgments as affecting attorney's lien, 568. 10. An order declaring an attorney's lien waived, 570. 11. A sum paid to buy peace, 570. 12. Parties, in action to enforce lien, 570. 13. What courts may enforce lien, 570. 14. Waiver of lien, 570. 15. A justice of the Municipal Court, 571. 16. In the Municipal Court of the city of Buffalo, 571. Art. V. Actions and Pbocbbdings between Attorney and Client, 571. 1. Relation uberritnoe fidei, 571. Failure to return money, 571. Presumption against release, 571. Where there is no evidence of unfairness, 571. A retainer, 571. 2. When rule is inapplicable, 572. 3. Want of skill on part of attorney, 572. 4. Settling claim without authority, 572. 5. Summary remedy of client, 572. Where client accepts notes, 572. If relation of attorney and client does not exist, 573. Reference may be ordered, 573. When reference improper, 573. Waiver of right to reference, 573. Defenses of attorney, 573. When proceeding not properly brought, 573. xlix Other Incidents of the Relation. ATTOUyiEYS— Continued. fi. Aa action at law is iu some cases a proper remedy, 574. Demand must be made, 574. Request for action at law, 574. May show attorney's deceit, 574. 7. Attorneys bound by their clerk's fraud, 574, Art. VI. Substitution op Attorneys, 575. 1. Substitution at any time and for any reason, 575. 2. Attorney guilty of misconduct, 575. Extended delay, not sufficiently excused, 575. Services valueless, 575. Where an attorney does not prove that he had justifiable rea- son, 575. 3. How efEected, 576. Reference may be directed, 576. 4. Order of substitution too broad„576. 5. On appeal to Court of Appeals, 576. 6. Execution may be issued by a new attorney without an order of substitution, 576. 7. Effect of dissolution of law firm, 577. 8. Service of the notice only is necessary, 577. Same rule for corporations, 577. FORIMS. 336. Stipulation for Substitution of Attorneys, 577. 337. Order of Substitution of Attorneys, 579. 338. Recital, in Order of Substitution, Preserving Lien of Attorney, 578. 339. Notice in Case of Death or Disability of Attorney, 579. Art. VII. Othbk Incidents of the Relation, 579. 1. Appearance presumptive evidence of authority, 579. 2. Retainer should be explicit, 579. 3. Disability of attorney, 580. 4. Effect of practicing without right, 580. 5. A motion by a plaintiff to restrain attorneys, 580. 6. Right of parties to choose attorneys, 580. 7. Court bound by record, 580. 8. Misconduct of one's law partner, 581. 9. Attorneys not to advertise for divorce cases, 581. 10. When principal bound by knowledge of attorney, 581. 11. Attorney must produce papers, 581. 12. Where attorney directs unlawful levy, 581. i ANALYTICAL TABLE OF CONTENTS, VOL. I. Plaintiffs. ATTORNEYS— Continued. 13. Kequiring the intervener to employ the original defendant's counsel, 581. 14. What attorney may do, 582. 15. What attorney may not do, 583. 16. The counsel's power, 583. 17. When counsel has no authority, 584. 18. When an attorney's authority ends, 584. 19. Privileged communications, 584. CHAPTER YII. PARTIES. Art. I. Paeties in Gknebal, 586. 1. Parties, 586. 2. Importance of word " as," 586. 3. Ths'court may determine the controversy, 586. 4. In equity, 587. 5. When other parties necessary, 587. Scope of § 452 broadened, 587. 6. When person must be a party, either plaintiff or defendant, 587. If a trustee of a wife, under a separation agreement, sues a husband, 587. Where subcontractors sought to foreclose mechanics' liens, 587. A mortgagee, insured against loss " as his interest may ap- pear," 588. If two, of three partners, sue a marshal for conversion, 588. Where attorneys hold money, 588. 7. Seeking party's street address, 588. Art. II. Plaintiffs, 588. 1. A plaintiff, 588. Special provisions, 588. 2. Who may be joined, 589. 3. Real party in interest must sue, 589. Test as to real party in interest, 589. Consideration immaterial in determining this, 589. 4. Action on bond under seal, 589. 5. When point not raised, 590. ANALYTICAL TABLE OF CONTENTS, VOL. I. li Plaintiffs. FARTmS— Continued. 6. Foreign executors can sue in this State, 590. Foreign executors who obtain a judgment abroad, 590. Executors recovered a judgment and were directed to tui'n over the money so obtained to themselves as trustees, 590. An executor of a deceased nonresident of this State, 590. 7. Assignee of foreign judgment, 590. 8. Legatees and other beneficiaries, 590. The heirs at law and next of kin of a deceased legatee, 591. An action brought by remaindermen, 591. An action was held not maintainable in the first instance by legatees after becoming of age, 591. Must prove facts enabling him to sue, 591. 9. Corporations; enforcing personal liability of directors, 591. Corporation suing as trustee, 591. Trustee joining with corporation, 591. Eepresentative actions, 592. 10. Elevated railroad actions for impairments of easements, 592. Koehler case distinguished, 592. Importance of reservations, 592. 11. Joining several plaintiffs in an action for negligence, 593. 12. Actions for deceit or fraud, 593. 13. Leases, 593. 14. Where an action is brought to foreclose a mechanic's lien, 594. 15. Actions by Indian tribes, 594. 16. Municipalities; action to recover penalty, 594. A " freeholder and taxpayer," 595. Taxpayer can sue to annul leases, 595. Where independent awards are made for lands, 595. Action against telephone company, 595. 17. Insurance litigation, 595. Insurance brokers, 595. Insurance companies who pay a property owner a fire loss, 595. Lloyds associates must join, 595. 18. A trustee of an express trust, 596. If man is partner with his wife, 596. 19. Where bank assigned a judgment for its convenience, to its cashier, 596. 20. Assignees, 596. An action on a promissory note may be maintained by the indorser of the payee, 597. 21. Action to recover on undertaking, 597. 22. If trustees are only depositaries, 597. 23. A trustee in bankruptcy, 597. 24. Wheo son and his mother are proper parties plaintiff, 597. lii ANALYTICAL TABLE OP CONTENTS, VOL. I. Defendants. TAUTmS— Continued. 25. Where a contract had three parties of the first part, but it was joint in form, as to thera, 597. 26. If interest of party has terminated, 598. Art. III. Defendants, 698. 1. A defendant, 598. 2. Distinction between party as individual and as representative, 598. 3. A judgment record is fatally defective, 598. 4. Who may be joined as defendants, 598. 5. If a contract is under seal, 599. 6. Eepleviu, 599. "7. When State a necessary party, 599. 8. When city a necessary party, 599. The poll clerks, 600. 9. Indian tribes, 600. 10. Corporations, 600. In an action to make a corporation perform a contract, 601. In an action against the trustees of a corporation, to pre- vent unlavpful acts, 601. A creditor of a corporation, 601. In an action to enforce the personal liability of directors, 601. In an action against an officer of a corporation, 601. In a replevin action to recover stock certificates, 601. If interest of two corporations is inseparable, 602. In an action for specific performance, 602. Joint-stock association, 602. 11. When intended beneficiary demands money, 602. 12. Liens, 602. In an action to establish an equitable lien, 603. Where an attorney sues to foreclose his lieu, 603. 13. Real property actions; foreclosure, 603. Partition, 603. If mortgaged chattels are WTongfully removed by the mort- gagor, 603. Where a husband sought to engraft a trust on realty, 603. Land leased ■with right of way, 604. Leases, 604. Actions to set aside transfers, 604. If brokers are sued by a vendor for purchase money, 605. 14. Partnership actions, 605. A partner was sued individually, 605. Where defendant alleged that the contract sued on was made with himself and his copartner, 605. ANALYTICAL TABLE OF CONTENTS, VOL. I. liii Intervention. PARTIES— Conlinued. Where the action is between a surviving partner and the representative of a partner wlio lias died, 606. One of two persons who open an account may not sue the stockbrolcers, 606. 15. Action for accounting, 606. 16. Insurance litigation, 606. 17. Action by assignee, 607. 18. A judgment creditor of a bankrupt is not entitled, 607. 19. Suit to construe will, 607. • 20. Undisclosed principals, 607. 21. A defendant having denied conversion, 607. 22. Action against surety, 607. Ai't. IV. Relators, 608. 1. A relator, 608. 2. Mandamus, 608. Must be brought in name of people, 608. Must not seek to do wrong, 608. Code Civ. Pro. § 2070, 609. Alternative mandamus order not appealable, 609. 3. Where person claims to be a public officer, 609. 4. Action to dissolve a corporation, 609. Detailed facts necessary, 609. Precedence given such action, 609. 5. When relator unnecessary, 610. FORMS. 340. Request to Attorney General to Sue to Annul a Corporation's Charter, 610. Art. V. Intebybntion, 611. 1. Intervention defined, 611. 2. Application to legal and equitable suits, 611. 3. When court must grant intervention, 611. Section 452 amended, 612. 4. If action is for money judgment only, 612. 5. No reason for party to intervene, 612. 6. Corporations, 612. Bondholders, 613. Stockholder, contingently liable, 613. 7. Action to obtain permit, 613. 8. Action against city, 613. 9. Teacher's action for pay, 613. \iv ANALYTICAL TABLE OP CONTENTS, VOL. I. Amendments. PAB.TIES— Continued. 10. Mortgage foreclosure, 614. If an alleged assignee seeks to foreclose, 614. Ejectment, 614. 11. Legatee intervening, 614. 12. Action to construe will, 614. FORMS. 341. Order Bringing in a Person Allowed to Intervene, 615. 342. AfSdavit in Support of Application to Intervene, 616. 343. Petition for Leave to Intervene, 618. Art. VI. Bringing in Nbw Paeties, 620. 1. Bringing in new parties to an action, 620. 2. When court must order other parties brought in, 620. Receiver pendente lite, 620. Party's waiver does not affect court's position, 620. 3. Mere direction insufficient, 620. 4. Conditions must be observed, 620. 5. Bringing in additional tort feasor, 621. FORMS. 344. Order Bringing in New Parties, 621. Art. VII. Substitution, 622. 1. Substitution, 622. A successor of a i-eceiver having been appointed, 623. In case of a ti-ansfer of interest, 623. 2. Person entitled to be substituted may appeal, 623. 3. Indemnitors may be substituted, 623. 4. A bond or undertaking is not affected by substitution, 623. 5. When " Richard Roe " is party, 624. 6. A judgment creditor brought action to set aside certain trans- fers, 624. FORMS. 345. Order of Substitution, 624. 346. Petition for Substitution, 625. Art. VIII. Amendments, 626. 1. An amendment, 626. The key-word is the word " mistake," 626. ANALYTICAL TABLE OP CONTENTS, VOL. I. Iv Objections to Parties and Waiver of Objections. FAKriES— Continued. 2. Broad powers to amend, 626. Liberal rather than narrow construction, 627. Whether to amend, is now wholly discretionary, 627. Change of one letter proper, 627. How far the court can go, 627. 3. The court can amend, by an ex parte order, 627. 4. Where tire defendant is named in a representative capacity, 627. Defendant sued individually, 628. 5. That the statute of limitations might run, 628. FORMS. 347. Affidavit in Support of Motion to Amend Summons to Correct an Error in the Christian name of a Defendant, after his De- fault, 628. 348. Affidavit as to True Name of Defendant Sued by a Misnomer, 629. 349. Order Granting Motion to Amend Sumnjons Correcting the Christian Name of a Defendant, 630. Art. IX. Objections to Pabties and Waiver of Objections, 630. 1. Misjoinder or defect of parties plaintiff, 630. 2. Defect of parties defendant, 631. 3. But misjoinder of parties defendant is not ground for demur- rer, 631. 4. Requisites of defense of nonjoinder, 631. Must state facts, 631. 5. When defect disregarded, 631. A defect of parties not alleged in an answer is not avail- able, 632. It is not a ground for dismissal, 632. 6. Objections raised on the trial, 632. 7. Waiver of objections, 632. In a case in which a city was a proper defendant, 632. 8. In the Municipal Court, New York, 632. 9. Where one of the defendants dies, 633. 10. When mere motion is insufficient, 633. Ivi ANALTTICAI. TABLE OF CONTENTS, VOL. 1. Nature and Grounds, and Property Subject to Attachment. CHAPTER VIII. ATTACHMENT. Art. I. Nature and Gbounds, and Pkopertt Subject to Attach- ment, 634. 1. Attachment defined, 634. For what writ is designed, 635. 2. Attacliment is proper in most legal actions except for a breach of a contract to marry, 635. It is not allowed, 636. 3. An order of arrest and a warrant of attachment may be had in the same action, 636. 4. Attachment discretionary with court, 637. Where the proceeding to vacate the attachment is taken by a subsequent lienor, 637. Under the old practice where an appeal was allowed to the Court of Appeals, 637. In all cases the writ of attachment is purely a statutory right, 638. 5. A proceeding in rem, 638. 6. If a United States Court grants, 638. But a Federal Court cannot acquire jurisdiction by attach- ing property, 638. 7. Where only nominal damages are sought, 638. 8. If based on several causes of action, 639. 9. Action for unpaid alimony, 639. 10. Contract separable, 639. 11. A nonresident plaintiff may secure an attachment against a non- resident defendant, G39. One foreign corporation seeking to attach the property of another foreign corporation, 640. 12. Conversion in wrongfully cashing check, 640. 13. An action to recover for injuries to the plaintiff's intestate, 640. 14. When it may be granted, 640. 15. What plaintiff must show. Proper cause of action, 640. Nonresidence, 640. Or, if he is a natural person, and a resident of the State, that he has departed therefrom, with intent to defraud, 641. Or, if the defendant is a natural person or a domestic cor- poration, that he or it has removed, or is about to remove, property from the State, with intent to defraud, 641. Or, where, for the purpose of procuring credit, or the ex- tension of credit, the defendant has made a false state- ment in writing, 641. ANALYTICAL TABLfi Ot CON'TENTS, VOL. I. ]vii Proceedings to Obtain Warrant. ATTACHMENT— ConJinMei. Or, where the defendant, being an adult and a resident of the State, has been continuously without the State of New York, 641. A threat to make an assignment with preferences, 641. Securing credit by false statement in writing as to financial responsibility, 641. 16. Sei'vice of summons must follow within thirty days, 642. Court cannot extend this time, 642. 17. Property subject to attachment; legal interests only, 642. Stock, 643. Insurance policies, 643. Tontine policies, 643. It can be levied on a flre insurance policy under which a loss has occurred, 644. Beneficiary of a fraternal organization, 644. A widow's dower right, 644. Tangible property disposed of in fraud of creditors, 644. A chose in action, 644. A bond or promissory note still remains a chose in action, 644. A contingent liability, 645. 18. An attachment against a national bank, whether solvent or in- solvent, is prohibited, 645. 19. Debts which have a foreign situs, 645. Presumption yields to proof of fact, 645. 20. " The real property," 646. The interest of a. vendee in possession of real estate, 646. Mortgagor's interest in land, 646. 21. Unissued bonds of a railroad corporation, 646. 22. The interest of a chattel mortgagor, 646. 23. The interest of one partner in a firm, 647. 24. Judgment unenforceable against unattached property, 647. Art. 11. Pbocebdings to Obtain Wabkant, 647. 1. In general, 647. Burden on petitioner, 647. " Deponent will allege," 648. Clerical errors, 648. 2. Suificiency of affiant's knowledge, 648. Information and belief affidavit, 648. Use of reference books; corporation directory, 651. Where the affiant was a principal in a transaction which con- stituted the cause of action, 651. Use of county clerk's certificate, 652. Iviii ANALYTICAL TABLE OP CONTENTS, VOL. I. The Warrant. ATTACHMENT— Coniinued. 3. Foreign corporations, 652. The assignee of a foreign corporation plaintiff, 652. 4. The moving papers must sliow tlie existence of a good cause of action, 653. Conclusions, without evidence, are not enough, 653. Payment for defendant not enough, 658. Wliere defendant committed forgery, 654. Allegations of damage must not be meager, 654. Where damages are unliquidated, 654. 5. Amount due over and above counterclaims, 654, The omission of this clause is fatal, 655. May be opinion, not fact, 655. The knowledge of the plaintiff, 655. 6. Nonresidence as a ground, 656. Distinction between domicile and residence, 657. Essential evidence, easily obtainable, should be given, 657. Insufficiency of proof cured, 657. Insanity, 657. 7. Fraudulent transfer as a ground, 657. " The mere disposal of even all of a debtor's property is in- sufficient," 657. It is immaterial where the fraudulent disposition of prop- erty took place, 658. Examples of insufficient affidavits, 658. Examples of affidavits held sufficient, 660. 8. Intent to remove as a ground, 661. FORMS. 350. Affidavit for Attachment Against a Nonresident or a Foreign Corporation Defendant in an Action for Breach of a Con- tract, 662. 351. Affidavit for Attachment Against Property of a Nonresident De- fendant, in Action Other than for Breach of Contract, 664. 352. Affidavit for Attachment Against Property of Absconding, etc., Defendant, 664. 353. Affidavit of Fraudulent Disposition of Property, 665. 354. Affidavit for Attachment in Action Against Public Officer, etc., for Peculation, 666. Art. III. The Wabkant, 667. 1. Writ of attachment not an original process, 667. 2. There is no jurisdiction until the warrant is granted, 667. 3. A warrant of attachment is void if not subscribed by the judge and the plaintiff's attorney, 668. ANALYTICAL TABLE OF CONTENTS, VOL. I. lix The Levy. Action in Aid of Attachment. ATTACHMENT— Continued. 4. Must recite ground, 668. 5. Defects not fatal, 668. 6. Use of the conjunctive, 668. 7. Use of the alternative, 669. 8. Amending the warrant, 669. 9. In N. Y. City Court, 669. FOBMS. 359. Warrant of Attachment, 670. 360. Kecitals in Warrant of Various Causes of Action, 671. 361. Recitals in Warrant of Various Grounds of Attachment, 672. Art. IV. The Levy. Action in Aid of Attachment, 673. 1. In general, 675. Sheriff must act within bounds set, 675. No formal levy or notice is needed where the property is al- ready in the hands of the sheriff, 675. How levy is made upon real property, 675. An unrecorded deed, 675. 2. Upon personal property capable of manual delivery, 675. Meaning of actual possession or custody, 676. What absolutely essential to the validity of the levy, 676. Until the officer has obtained the actual custody of the prop- erty he has made no levy, 676. If levy is once properly made, 676. Property in custody of a warehouseman, 677. 3. Choses in action, etc., 677. Pledgor's interest, 677. Stock of foreign corporation, 677. The income of a trust fund, 678. If the legal title to promissory notes has been assigned, 678. Interest in corporation or association, 678. 4. Property discovered in any action, 678. 5. The copy of the warrant must be certified, 678. 6. The notice must specify the property attached, 679. 7. Firm property attachment, 679. 8. Must not use trick, 680. 9. Proof of levy, 680. 10. Priority of liens, 680. The levy of attachments must be made in the priority in which they are received, 680. After appeal, 681. Levy, not judgment, determines priority, 681. 11. Examination of third person, 681. Ix ANALYTICAL TABLE OF CONTENTS, VOL. I. The Levy. Action in Aid of Attachment. ATTACHMENT— ConiJnued. 12. Action in aid of an attachment, 681. Junior attaching creditors may liave their rights protected, 682. The leave of court, 682. The sheriii alone or jointly with the attaching creditor may maintain action, 682. Attachment foundation of suoli action, 682. Proper levy necessary, 682. Transfers of property in fraud of creditors, 683. When execution has been issued on the judgment, 683. After the discliarge of an attachment the sheriff cannot col- lect poundage, 683. 13. Claim to attached property, 683. 14. Perishable property, 683. 15. Setting aside levy, 684. A levy may be set aside and yet the attachment as a writ be allowed to stand, 684. Specifying defect in motion, 684. 16. Exemption, 685. FORMS. 363. Notice of Attachment of Real Estate, 685. 364. Notice of Attachment of Personal Property, not Capable of Man- ual Delivery, 686. 365. Sheriff's Certificate to be Indorsed on Copy Attachment Served on Debtor, etc., 686. 366. Certificate of Interest of Defendant in Property, on Demand of Sheriff, under Attachment, 687. 367. Sheriff's Certificate of Refusal to Certify as to Property Sought to be Attached, 688. 368. Affidavit of Refusal to give Certificate of Property of Defendant, or as to False or Insufficient Certificate, 688. 369. Order for Examination of Person Refusing to give Certificate, or Making False or Insufficient Certificate, 689. 370. Inventory and Appraisal of Property Attached, 691. 371. Order Requiring Sheriff to Return an Inventory of Property At- tached by Him, 692. 372. Order for Sale of Perishable Property and of Live Animals At- tached by Sheriff, 692. 373. Affidavit to Obtain Appraisal of Domestic or Foreign Vessel, Held under Attacliment, 694. 374. Order Appointing Appraisers to Make Valuation of Domestic or Foreign Vessel, 694. 375. Valuation of Domestic or Foreign Vessel, or Interest Therein, Attached by Sheriff, 695. ANALYTICAL TABLE OF CONTENTS, VOL. I. Ixi Vacating an Attachment. ATTACHMENT— Conimued. 376. Order Discharging Vessel from Attachment, 696. STT. Order Discharging Foreign Vessel from Attachment, on Failure of Plaintiff to give XJndertiikitig, 697. 378. Affidavit of Defendant on Application for the Foreign Vessel or its Proceeds, 698. 379. Order for Sale of Vessel vrhere Undertaking of Plaintiff is not Discharged, or lie is not Indemnified, 699. 380. Order for Sale of Vessel, where Proper Undertaking is not Exe- cuted by Claimant, 700. 381. Order Directing Sale of Vessel upon Application of Joint Owner, 701. 382. Order Dii-eoting Sheriff to pay into Court the Proceeds of Prop- erty Sold, or Demands Collected under Attachment, 702. 383. Order Directing Sheriff to pay over Surplus, on Application of Defendant or his Assignee, 702. 384. Order Granting Leave to Plaintiff to Bring Action in the Name of Himself and the Sheriff, to Recover Property Attached or the Value Thereof, 703. 385. Order Granting Leave to Plaintiff in Attachment Suit, to Join in Action Brought by Sheriff, 704. 386. Order Permitting Junior Attachment Creditor to Give Undertak- ing to Prevent Release of Foreign Vessel, 705. 387. Order Granting Leave to Junior Attaching Creditor to Commence Action Jointly with Sheriff, 706. 388. Petition for Sale by Sheriff of Debts and Things in Action under Attachment, 707. 389. Affidavit of Sheriff Accompanying Petition for Sale of Debts, • etc., Attached, 708. 390. Notice of Application by Sheriff for Sale of Attached Debts and Things in Action, 709. 391. Order Directing Sheriff to Sell Debts and Things in Action At- tached, 710. 392. Affidavit of Defendant on Application to be Substituted for Sheriff in Suit on Attached Demand, 711. 393. Order Substituting Defendant in Suit by Sheriff, or by Sheriff and Plaintiff Jointly, for Property Attached, 712. 394. Affidavit to Procure Order Canceling Notice Attaching Real Prop- erty in Attachment Suit, 713. 395. Order Canceling Notice Attaching Real Property, 714. Art. V. Vacating an Attachment, 715. 1. In general, 715. If an action is discontinued before the defendant appears, 715. Ixii ANALYTICAL TABLE OF CONTENTS, VOL. I. Vacating an Attachment. ATTACHMENT— Coraiinwed. After execution has been issued on the judgment, 715. If the suit is dismissed for lack of jurisdiction, 713. 2. Who may move to vacate, 715. A junior attaching creditor, or an execution creditor, may apply, 716. Merits not considered ; intervention, 716. What a junior lienor, if his judgment was obtained in the City Court, must show, 716. Justices' court, 717. A valid lien must be shown to exist in favor of the junior lienor, 717. The junior lienor may move on affidavits as well as on the original papers, 717. A temporary receiver, 717. An assignee, 717. Corporation with same name as defendant, 718. Defendant, moving to vacate, may appear only specially, 718. 3. When and where motion is to be made. When, 718. Where, 718. In New York County, 718. As to where motion may be made generally, 719. 4. The motion to vacate may be made on the original, or new, pa- pers, 719. Second motion without leave, 719. An attachment, obtained ex parte, 719. Service of summons on wrong officer, 719. 5. If property levied on is not subject to attachment, 719. 6. Merits of action not considered, 720. 7. An attachment will not be vacated where the evidence in sup- port of it is fairly preponderating, 720. 8. Keview by Court of Appeals, 721. 9. Specifying irregularities in the notice of motion to vacate, 721. Failure to recite the ground of the attachment in the war- rant a mere irregularity, 721. The irregularity must be specified in the notice of motion or order to show cause, 721. Where the affidavits are defective in matter of substance, 721. 10. What affidavits may contain, 722. 11. An attachment may be vacated on the papers on which It was granted, 722. 12. It may be vacated on additional papers, 723. 13. When proper remedy is to reduce the amount of the attachment 724. 14. Vacating attachment on condition, 724. ANALYTICAL TABLE OF CONTENTS, VOL. I. Ixiii Discharging an Attachment. ATTACHMENT— Contimied. 16. Order to show cause, 724. 16. The order vacating attachment, 724. FORMS. 401. Notice of Motion to Vacate or Modify Attachment, or to Increase Security, 725. 402. Notice of Motion to Vacate Attachment on Papers on Which it was Granted, 726. 403. Recital of Special Appearance in Notice of Motion to Vacate * Attachment, 726. 404. AflSdavit to Procure Order to Show Cause Why Attachment Should Not be Vacated, 727. 405. Order to Show Cause Why Attachment Should Not be Vacated or Modified or Security Increased, 728. 406. Affidavit on Behalf of Person Holding Junior Lien to Vacate Prior Attachment, 729. 407. Affidavit of Party or Attorney Supplementary to Form No. 406, 731. . . 408. Affidavit by Assignee of the Attachment Debtor, 732. 409. Order Vacating or Modifying Attachment or Kequiring Increased Security, 733. Art. VI. DiSCHAEGING AN ATTACHMENT, 735. 1. In general, 735. 2. How discharge obtained, 735. The order discharging the attachment may be made ex parte, 736. 3. Amount of the undertaking, 736. 4. The order, 737. 5. Effect of discharge, 737. 6. Action on the undertaking, 737. The discharge of the attachment debtor in bankruptcy does not discharge the surety on an undertaking given to dis- charge an attachment, 739. FORMS. 413. Affidavit to Procure Discharge of Attachment upon Giving Un- dertaking, 739. 414. Order Discharging Attachment, 740. 415. Affidavit by Partner for Discharge of Interest in Partnership Property from Attachment upon Notice, 741. Ixiv ANALYTICAL TABLE OF CONTENTS, VOL. I. The Undertaking. ATT A-CBMEl^T— Continued. 416. Notice of Motion to Discharge Attachment upon Giving Secu- rity, 742. 417. Notice of Motion for Discharge of Attachment as to Firm Prop- erty upon Giving Security, 742. 418. Order of Reference to Take Proof as to Value of Property At- tached, 743. Art. VII. The Undertaking, 743. 1. In general, 744. 2. Undertaking on obtaining attachment, 744. 3. Number of sureties necessary, 74.5. 4. Where surety is fictitious, 745. 5. A mere deposit of money will not be accepted in lieu of an un- dertaking, 745. 6. The amount, 745. Increasing the amount, 745. If value of attached property decreases, 746. 7. The cause of action on this undertaking, 746. Demand is not necessary, 747. 8. The undertaking on obtaining discharge of attachment, 747. The court has general power to discharge attachment, 748. 9. Two undertakings are necessary if the discharge of two attach- ments is sought, 748. 10. May be made out to assignees, 748. 11. The amount, 748. 12. The action (in this undertaking, 748. A demand on the principal, 748. 13. Claims by third persons, 748. New section added to Code, 749. FORMS. 420. Undertaking on Granting Warrant of Attachment, 749. 421. Undertaking where Attached Property is Claimed by Third Per- son, 750. 422. Undertaking by Third Person who Claims Property Taken Under an Attachment Against Another, 751. 423. Undertaking by Defendant on Application to Discharge Attach- ment, 752. 424. Undertaking by Surety Company on Discharging Attachment, 753. 425. Undertaking Where Application is Made by Some, but not All of Several Defendants, 754, ANALYTICAL TABLE OF CONTENTS, VOL. I. IxV When Authorized. ATTACHMENT— ConJinued. 426. Undei'takiog, on Application by Partner, to Discharge Attach- ment from Partnership Property, 7o4. 427. Undertaking upon Attachment of Goods on Vessel to Procure Delivery, 756. 428. Undertaking to Discharge Domestic Vessel from Attachment, 757. 429. Undertaking by Defendant to Obtain Possession of Vessel, after Discharging or Vacating of Attachment, 758. 430. Undertaking to be Given by the Plaintiff in Case of Attachment of Foreign Vessel to Prevent its Discharge, 759. 431. Notice of Exception to Sufficiency of Sureties in Undertaking Given on Discharge of Attachment, 760. CHAPTEK IX. AKKEST. Art. I. In Gbnebal, 761. 1. In general, 761. It is a provisional remedy, 761. A matter of discretion, 761. 2. Who may obtain order, 762. 3. Foreign judgment not a bai-, 762. 4. Effect of order, 762. 5. The law governing arrest, 763. Art. II. When Authorized, 763. (A) Depending on the nature of the action, 763. (B) Depending on extrinsic facts, 769. A. 1. Depending on the nature of the action, 763. To recover a fine or penalty, 763. To recover damages for a personal Injury, 764. To recover damages for an injury to property, including the wrongful taking, detention or conversion of per- sonal property, 764. Breach of a promise to marry, 765. Misconduct or neglect in office, or in a professional em- ployment, 765. Fraud, or deceit, 765. Ixvi ANALYTICAL TABLE OF CONTENTS, VOL. I. When Authorized. A'RKEUT:— Continued. To recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed, or disposed of so that it cannot be found or taken by the sherifE and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof, 766. To recover for money received, or to recover property or damages for the conversion or misapplication of prop- erty where it is alleged in the complaint that the money was received or the property was embezzled or fraudu- lently misapplied by a public officer or by an attorney, solicitor or counselor, or by an officer or agent of a cor- poration or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity, 767. To recover moneys, funds, or property held or owned by the State, or held' or owned officially or otherwise for or in behalf of a public or governmental interest by a municipal or other public corporation, board, officer, custodian, agency or agent, of the State or of a city, county, town, village, or other division, subdivision, department, or portii)n of the State, which the defend- ant has, without right, obtained, received, converted, or disposed of, 768. To recover damages for the obtaining, receiving, paying, converting or disposing of, moneys owned by the State, etc., 768. In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of fraud in contracting or incurring the liability, or that he has, since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like in- tent, 768. B. 2. Depending on extrinsic facts, 769. What " judgment " includes, 770." Granted only by court, 770. In an action for an accounting, 770. Alimony, 770. Divorce, 770. A foreign administrator, 770. Residence, 770. ANALYTICAL TABLE OP CONTENTS, VOL. I. Ixvii Proceedings to Obtain Order. ARREST — Continued. 3. If there are several causes of action, "771. When equitable and legal relief are both asked, 771. Limitation of this principle, 772. If the right to arrest depends on the existence of extrin- sic facts, 772. 4. In justices' courts, 772. 5. In the Municipal Courts, New York City, 773. Art. III. Exemptions, 773. 1. Who entitled, 773. Court ofiacer, 773. Diplomatists, 774. Executor, administrator, etc., 774 Extradited person, 774. Lunatic, idiot, etc., 774. Partner, 773. Soldier, 775. Suitors, 775. Tricked person, 775. Witness, 775. Woman, 775. In Municipal Courts and Justices' Courts, 776. 2. Waiver of exemption, 776. 3. Remedy for violation of exemption, 776. Art. IV. Procebdinqs to Obtain Obdbb, 777. 1. In general, 778. 2. From whom obtained, 778. 3. When obtained, 778. 4. What applicant must show, 779. Degree of proof necessary, 779. Omission of essential papers, 780. If foreign corporation applies, 780. Bail, 781. Name of defendant, 781. 5. Where right depends on cause of action, 781. Conversion, 781. Fraud, 782. Malicious prosecution, 782, 6. Where right depends on extrinsic facts, 782. If defendant is about to depart, 783. Disposal of property, 783. Nonresidence, 783. Ixviii ANALYTICAL TABLE OF CONTENTS, VOL. I. The Order and Proceedings to Execute it. ARB.EST— Continued. FORMS. 435. Affidavit to Obtain Order of Arrest, Where Right Depends on tlie Nature of the Action. General Form, 784. 436. Affidavit to Obtain Order Where Eight Depends Partly on Ex- trinsic Facts. General Form, 786. 437. Complaint by Foreign Corporation to Obtain Order. Conver- sion, 787. 438. Affidavit to Obtain Order. Conversion of Money Received in a Fiduciary Capacity, 788. 439. Affidavits to Obtain Order. Conversion of Money Received in a Fiduciary Capacity. Another Form, 790. 440. Complaint and Affidavits to Obtain Order. Conversion, by In- dorsing Another's Stock Certificate, 793. 441. Allegations in Complaint to Obtain Ordei-. Conversion, 795. 442. Affidavits to Obtain Order. Conversion of Funds Given Defend- ant for Another Purpose, 796. 443. Affidavit to Obtain Order. Personal Injury, Cruelty, in Action for Limited Divorce, 799. 444. Complaint and Affidavits to Obtain Order. Slander, 802. 445. Complaint and Affidavits to Obtain Order. Fraud, 803. 446. Complaint and Affidavits to Obtain Order. Fraud with Refer- ence to the Ownership of a Judgment, 806. 447. Affidavit to Obtain Order. Fraud in Contracting a Liability, 809. 448. Complaint and Affidavits to Obtain Order. Fraud and Deceit in Forming Partnership, 812. 449. Allegations in Complaint to Obtain Order. Action for Willful Injury to Property, Defendant being a Woman, 815. 450. Allegations in Complaint to Obtain Order. Action for a Personal Injury, Alienation of Wife's Affections, 816. 451. Affidavit to Obtain Order. Nonresidence, 817. 452. Affidavits to Obtain Order. Concealment of Chattel, 818. 453. Affidavit to Procure Discbarge of Privileged Person, 821. 454. Order Discharging Privileged Person from Arrest, 822. Art. V. The Obdeb and Peocebdings to Execute it, 823. 1. Contents of order; grounds", 823. Subscriptions, 823. Time allowed for arrest, 823. Direction to sheriff, 823. 2. Execution of the order, 824. The sheriff must execute the order by arresting the defend- ant, if he is found within his county, 824. Jail liberties, 824. Sheriff to file papers, 825, ANALYTICAL TABLE OF CONTENTS, VOL. I. Ixix Vacating the Order. ARREST— Continwed. 3. Efiect of the order; time to answer, 825. Preference, 826. FORMS. 455. Judge's Order for Arrest. Personal Injury, 826. 456. Recitals, in Orders of Arrest, of the Grounds on Which They are Made, 826. Embezzlement, 826. Conversion, 827. Conversion, another form, 827. Fraud, 827. Conversion and fraud, 827. Libel, 827. Willful injury to property, where defendant is a woman, 827. To recover a chattel, where concealment, etc., is alleged, 828. Personal injury, alienation of wife's affections, 828. 457. Order of the Court for Arrest of Defendant in Civil Action, 828. 458. indorsement by Plaintiff's Attorney upon Order of Arrest, Lim- iting Time for Arrest, 829. Art. VI. Vacating the Order, 830.- 1. When motion to be made, 830. 2. On what founded, 830. The original papers, 830. What conceded, 831. In the Municipal Court, 831. On new proof, 831. Code Civ. Pro. §§ 568, 769, are consistent, 832. Renewing motion to vacate, 832. Effect of new proof by defendant, 832. An afadavit not referred to in the order of arrest cannot be considered on a motion to vacate it, 833. 3. If cause of action and ground of arrest are identical, 833. 4. Review hy appellate court, 833. 5. Sufficient grounds for vacating, 834 Unnecessary delay, 634. In the Municipal Court, New York, 835. The order may be vacated in part and upheld in part, 835. Omission of essential affidavits, 835. 6. Insufficient grounds for vacating, 835. Insufficiency cured by amended pleading, 836. Defects in copies, 836. Omission of plaintifE's Christian name, 836. 7. Stipulation not to sue, 836. Ixx ANALYTICAL TABLE OF CONTENTS, VOL. I. BaU. ARREST — Continued. FORMS. 465. Affidavit on Motion to Vacate Order of Arrest, 837. 466. Notice of Motion to Vacate, 838. 467. Order to Sliow Cause Why Order of Arrest Should Not be Var cated, 839. 468. Order Vacating Order of Arrest, 840. 469. Order Vacating Order of Arrest. Another Form, 841. 470. Order Denying Motion to Vacate, 842. 471. Condition, in Order Vacating Order of Arrest, that the Defend- ant Stipulate Not to Sue for Damages, 843. 472. Affidavit to Procure Discharge from Arrest, Where Judgment is not duly Entered or Execution not duly Issued, 844. 473. Notice of Motion for Discharge of Defendant from Custody, Un- der Order of Arrest, etc., Where Judgment not duly Entered or Execution not duly Issued, 845. 474. Order Discharging Defendant from Arrest, when Judgment has not been duly Entered, or Execution has not been duly Issued, 846. 475. Application for Discharge from Arrest of Lunatic, Idiot or In- fant under Fourteen Years of Age, 847. 476. Recital in Notice of Motion for Discharge of Lunatic, Idiot or Infant under Fourteen Years of Age from Arrest, 848. fll. Order Discharging Lunatic, Idiot or Infant under Fourteen Years of Age from Arrest, 848. Art. Vn. Bail, 849. 1. In general, 849. 2. How discharge obtained, 850. At any time, 850. Defendant may elect, 850. 3. The bail undertaking, 851. Contents, 851. Amount, 851. Defendant may move to reduce, 851. Plaintiff may not move to increase, 852. Void undertakings, 852. 4. Effect of giving bail, 852. FORMS. 480. Undertaking to Procure Discharge from Arrest, 862. 481. Undertaking to Discharge from Arrest, 853. 482. Undertaking to Discharge from Arrest, 854. 483. Xotice by Plaintiff's Attorney of Nonaooeptarnce of Bail, 854. ANALYTICAL TABLE OF CONTENTS, VOL. I. Ixxi The Undertaking. ARREST— Coniinued. 484. Notice of Justification of Bail, in Undertaking to Discharge from Arrest, 855. 485. Allowance by Judge of Bail, in Defendant's Undertaking to Ob- tain Discharge from Arrest, 855. 486. Certificate by Sheriff to Defendant, on Deposit of Amount Speci- fied in Order, 856. 487. Certificate of County Treasurer of Payment into Court of Money Deposited with Sheriff, 856. 488. Order on Substitution of Bail for Deposit, 857. 489. Direction by Defendant to Sheriff, to pay Amount of Deposit to Third Person, 857. 490. Certificate of Sheriff on Surrender of Defendant by his Bail, 858. 491. Notice of Motion for Exoneration of Bail after Surrender, 858. 492. Order Exonerating Bail, after Surrender of Defendant, 859. 493. Requisition upon Sheriff, by Bail of Defendant, upon his Sur- render by T'hem, 860. 494. Authority Given by Bail to Arrest Defendant, 860. 495. Requisition by Defendant, upon his own Voluntary Surrender, 861. 496. Sheriff's Certificate of Voluntary Surrender of Prisoner in Ex- oneration of Bail, 861. 497. Order Exonerating Bail in Case of Death of Defendant, etc., 862. Art. VIII. The Undertaking, 863. 1. When required, 863. When order of arrest is granted by judge, 863. In Justice's Court, 863. In action to recover State moneys, 863. Where the order can be granted only by the court (Code Civ. Pro. §§550, 551), 863. The undertakings provided for in Code Civ. Pro. §§ 149 and 515 are distinct, 864. 2. Requisites, 864. Judge's approval, 864. The plaintiff need not himself give the undertaking, 864. An accredited diplomat may execute undertaking, 864. If there are three defendants, 864. The undertaking is sufficient, if it conforms substantially to the form prescribed by statute, 865. Amendments, 865. Service of new undertaking, 865. 3. The undertaking is assignable, 865. 4. Action on undertaking, 865. When brought, 865. Ixxii ANALYTICAL TABLE OF CONTENTS, VOL-. I. The Undertaking. ARU^ST— Continued. Costs cannot be taxed against sureties who unsuccessfully prosecute an action, 866. Eifect of a discharge in bankruptcy of the plaintiff, 866. Where the undertaking is in favor of two defendants, 867. If defendant, as a condition of the order of arrest being va- cated, has stipulated, relieving plaintiff from liability, 867. Demand on plaintiff not necessary, 867. Answer; conflicting claims to undertaking, 867. What plaintiff can recover, 867. What deposit liable to, 868. FOBMS. 500. Undertaking by Surety Company on Obtaining Order of Arrest, 868. 501. Undertaking by Individual Sureties, 869. 502. Undertaking on Obtaining Order of Arrest. In Justice's Court, 870. TABLE OF CITATIONS IN VOL. L From the Code of Civil Procedure. (The following table indicates the places where sections of the Code of Civil Procedure are cited in this volume, and also indicates the subject as to which a section is cited in each instance. This table is inserted in addition to the Analytical Table of Contents and of course is not as complete as the latter in indicating the contents of the boolc, as there are many forms and much in the way of text as authority for which there are no direct citations from the statutes. A complete index of Vols. 1 and 2 will be found in Vol. 2.) § 4. Service of summons on Sun- day, 107. § 7. Subpoena; issued by court, 499. §§ 8-14. Penalty for disobeying subpoena, 502. § 24. Subpoena; how issued, 498. Subpoena; by whom signed, 507, note. § 53. Form; notice of substitu- tion of judge, 392. § 55. Party may prosecute in per- son, 542. § 56. Requirements to take bar examination, 542. May exempt law-school graduates from bar examination, 546. § 57. May exempt law-school grad- uates from bar examination, 546. § 58. (As am'd 1905.) Exempt- ing law-school graduates from bar examination, 546. § 59. Proof of good moral char- acter of applicant for admission as attorney, 546. § 65. Form; notice in case of death or disability of attorney, 579. Notice requiring appointment of new attorney on death of former one, 393, note. Form; notice requiring appoint- ment of new attorney on death of former one, 393. § 66. (As am'd 1899.) Attorney's statutory lien, 566. Jurisdiction of municipal court, 564. § 67. Disbarment, 555. Disciplining attorney; punish- ment, 657. Disbarment; misdemeanor, 557. §68. (As am'd 1903.) Disbar- ment; service of charges, 556. § 74. Disbarment; misdemeanor, 557. Ixxiii Ixxiv Bradbury's Lansing's forms and practice. Disbarment, 555. § 75. Disbarment; misdemeanor, 657. Disbarment, 555. § 102. Constable's liability for fail- ing to return execution, 458. § 108, subd. 2. Subpoena; issued by sheriff, 499. § 132. Attachment notice; real property, 685, note. §145. Jail liberties, 824. Amendments to provisions re- lating to jail liberties, 825. Jail liberties for a number of coun- ties, 851. § 149. Arrest; xmdertaking; dis- tinct from that provided for in § 575, 864. Jail liberties; amendments to pro- visions relating thereto, 824. § 150. Notice of exception to sure- ties, 238, note. Notice of justification of sureties, 239, note. Jail liberties; amendments to pro- visions relating thereto, 825. §§ 150 et seq. Undertalcing upon admission to jail liberties, 851, 863. § 151. Jail liberties; amendments to provisions relating thereto, 825. § 157. Omitting verification of pleading, 528. § 158. Jail liberties; amendments to provisions relating thereto, 825. § 167. Jail liberties; amendments to provisions relating thereto, 825. § 169. Jail liberties; amendments relating thereto, 825. § 171. Jail liberties; amendments relating thereto, 825. § 172. Service of summons on sheriff, 103. § 186. Former sheriff must sign return, 457. § 190. Review by court of appeals; attachment, 721. § 191. Review by court of appeals; attachment, 721. § 241. Power of county judge, 341. § 260, subd. 1. Authenticationj when affidavit taken outside of State, 196. § 311. Subpoena; expenses in serving, 501. § 338. City court of New York; summons served personally within city limits only, 98. § 338, subd. 2. Subpoena; where served, 500. § 340. Jurisdiction; county court, 98. § 347. Subpoena; in county court, 500. County court may send process to any county in State, 98. § 349. Power of county judge, 341. § 354. Order by Supreme Court judge in coimty court action, 343. §§ 368 et seq. How action in be- half of infant brought, 46. § 398. When action deemed com- menced, 84. § 399. Substituted service of sum- TABLE OF CODE CITATIONS. Ixxv mons defeats statute of limitations, 119. Issuance of summons commences action, 84. § 416. Civil action commenced by service of summons, 82. § 417. Contents of summons, 86. Caption of a summons, 244. Signature to summons, 390, note. § 418. Svmimons the mandate of the court, 81. § 419. Form; notice when com- plaint is not served with summons, 93. §§ 419, 420. Judgment entered without application to court, in action on contract, 93, note. § 421. General appearance, 159. Time within which notice of ap- pearance may be served, 159. What is general appearance, 162. § 422. Time within which notice of appearance may be served, 159. § 423. Form; notice of appear- ance, 163. Form; notice of mortgage fore- closure without personal claim, 94. § 424. Voluntary appearance equiv- alent to service of s umm ons, 82. § 425. Service of summons, 103. Time within which sheriff may serve summons, 125, note. Form; indorsement of time with- in which summons must be served, 125. § 426. Summons to be served per- sonally only within territorial or jurisdictional limits of court, 97. Service on natural person; per- sonal service, 107. Service of summons on infant under fourteen, 108. Service of summons on infant over fourteen years, 109. Service of summons on incompe- tent, 109. Copy of summons must be served, 249. Form; certificate of service of sum- mons on person designated to receive service, 127. § 426, subd. 1. Form; certificate of service of summons on infant under fourteen, 126. Form; affidavit of service of sum- mons on infant under fourteen, 131. § 426, subd. 2. Order appointing special guardian ad litem, 137, note. Form; certificate of service upon lunatic, etc., 126. Form; affidavit of service of sum- mons on lunatic, 132. § 426, subd. 3. Notice of location of sheriff's office, 135, note. Form; affidavit of service of sum- mons on under-sheriff, etc., for sheriff, 135. §426, subd. 4. Form; affidavit of service of summons by person other than sheriff, 130. Form; certificate of service of summons on several defendants at different times, 130. § 427. Service in case of infant over fourteen, 109. Service of summons where de- fendant has not been judicially de- clared incompetent, 110. Form; order of court that service be made on person other than de- fendant, 136. Ixxvi Bradbury's Lansing's poems and practice. §§ 427, 428. Where summons is served on person adverse to infant, 109. § 428. Service of summons in case of incompetent, 110. Form; order for service where person to whom summons is delivered has adverse interest, 136. § 429. Service of summons on in- competent, 109. Dispensing with service of sum- mons on defendant personally, 127, note. Form; affidavit to procure order dispensing with service of a summons on lunatic, 137. Form; order dispensing with de- livery of copy of summons to lunatic, 138. § 430. Failure to designate per- son on whom to serve summons, 641. Form; certificate of service of summons on person designated to receive service, 127. Form; designation of person on whom to serve summons, 139. Form; revocation of designation of person to receive service of sum- mons, 140. § 431. Service of summons on domestic corporation, 128, note. Form; certificate of service of summons on corporation, 128. Forin; affidavit of service of sum- mons on a corporation, 132. § 431, subd. 1. Service of sum- mons against New York City, 110. § 431, subd. 2. Service of sum- mons against city other than New York, 110. § 431, subd. 3. Service of sum- mons against domestic corporation, 111. § 432. Service of summons on for- eign corporation, 111, 115, 128, note. Form; certificate of service of summons on a corporation, 128. § 432, subd. 1. Service of sum- mons against foreign corporation, 111. Form; affidavit of service of sum- mons on a corporation, 132. § 432, subds. 1 and 2. Service of summons against foreign corporation, 111. § 432, subd. 2. Service of sum- mons against foreign corporation, 111. Affidavit of service of summons on foreign corporation where no person is designated, 133, note. Form; certificate of service of sum- mons on person designated by foreign corporation to receive service; 128. Form; affidavit of service of sum- mons on person designated by for- eign corporation, 133. Form; designation by foreign cor- poration of person to receive service of summons, 141. Form; revocation of designation of person designated by foreign cor- poration to receive service of sum- mons, 143. Form; change of office by person designated to receive service of sum- mons, 145. § 432, subd. 3. Service of sum- mons against foreign corporation, 111, 112. Meaning of term "managing agent," 134, note. Form; certificate of service where person designated to receive service cannot be found, 129. Form; affidavit of service of sum- mons on foreign corporation where no person is designated, 133. TABLE OF CODE CITATIONS. Ixxvii § 433. Special proceeding begun by process, 82. Wiien designation of person on ■whom summons is to be served does not apply, 139, note. § 484. Proof of service of sum- mons, 123, 124. Written admission of service of summons, 124, 146, note. Form; sheriff's certificate of serv- ice of summons and complaint, 125. Form; certificate of service of summons on several defendants at different times, 130. § 434, subd. 1. Form; certificate of service upon lunatic, etc., 126. § 434, subd. 2. Form ; written admission of service of summons, 146. § 435. Substituted service of sum- mons within the State, 117. Attack on judgment entered on substituted service, 119. Service of summons in action for divorce, 120. Service of summons if defendant can be foimd, although not within the State, 148, note. Form; certificate that defendant evades service of summons, 147. Form; affidavit to procure order for service of summons on a resident who cannot be found, 147. Form; order for service of sum- mons on a resident who cannot be found, 148. §§ 435, 438. Publication and per- sonal service of summons without the State, on nonresident or foreign corporation, 117. § 436. Form; proof of substituted service, 149. §438. Form; affidavit of search for defendant on application to serve summons by publication, 152. § 438, subd. 1. Service of sum- mons where defendant remains un- known, 119. Service of natural person not a resident of the State, 119. Service of summons on foreign corporation, 119. § 438, subd. 2. Service of sum- mons where defendant has left State, 119. § 438, subd. 3. Service of sum- mons if defendant can be found, although not within the State, 148, note. Service of summons where de- fendant has been for six months continuously without the State, 120. § 438, subd. 4. Service of sum- mons in action for annulment, etc., 120. §438, subds. 4, 5, 7. Order for service of summons by publication, 153, note. § 438, subd. 5. Service of sum- mons in action affecting the title to real estate, 120. § 438, subd. 6. Service of sum- mons, where attempt is made to avoid the Statute of Limitations, 121. § 438, subd. 7. Service of sum- mons in action against stockholders of a corporation or joint-stock com- pany, 121. § 439. Substituted service on non- resident or foreign corporation, 117. Nonresidence and inability to serve must appear from moving papers, 121. Order for service of summons by publication, 153, note. Ixxviii bkadbuey's la:^sing's forms and practice. Form; affidavit on application for order for service of summons by publication, 150, note. § 440. Order for service of sum- mons by publication, if defendant is an infant, 154, note. Form; order for service of sum- mons by publication, 153. § 441. Service of summons on in- fant by publication, 47. Publication of summons; reckon- ing time, 439. § 442. Notice to defendant to ac- company summons as published; to whom it is to be directed, 155, note. Form; notice to defendant to ac- company summons as published, 155. § 443. Form; notice to be served with summons when service is made without the State, 156. § 444. Form; proof of publication of summons and notice, 156. Form; affidavit of service on de- fendant without the State, 157. Form; affidavit of deposit in the post office, 157. Form; affidavit of publication, 453. § 445. Notice to defendant of entry of judgment in case 'of service by publication; where default i& made, 158, note. Defaxilt taken after substituted service, 266. Form; notice to defendant of entry of judgment, in case of service by publication, 158. § 446. Who may be joined as par- ties, 589. Who may be joined, 591. § 447. Who may be joined as de- fendants, 698. (As am'd 1901.) When people may be defendants, 600. Form; affidavit in support of ap- plication to intervene, 616. § 449. Real party in interest must sue, 589. Trustee of express trust may sue in his own name, 596. § 451. Use of fictitious name must be stated, 86. § 452. Bringing in new parties, 586, 587. What parties may be brought in, 592. Wife a party to an action to set aside conveyance by husband, 605. Defendants, 607. Widow of deceased a defendant in life insurance action, 607. Principal defendant in action against surety, 608. In what actions intervention al- lowed, 611. When court must grant interven- tion, 612. Intervention by a legatee, 614. Intervention; mortgage foreclos- ure, 614. When court must order other par- ties brought in, 620. Objections to defect of parties, 632. Form; order bringing in a person allowed to intervene, 615. Form; affidavit in support of ap- plication to intervene, 616. §§458-464. Petition for leave to prosecute or defend as poor person, 434. § 459. Form; poor person; leave to sue as, 40, note. Form; poor person; leave to sue as, 41. TABLE OF CODE CITATIONS. Ixxix § 460. Form; poor person; leave to sue as, 41. § 462. Form; annuling leave to sue as poor person, 42. § 463. Form; poor person; leave to defend as, 42. § 465. Form; poor person; leave to defend as, 43. § 469. How action for infant brought, 46. Infant's father must have suffi- cient means, 60. Form; affidavit as to proposed guardian's responsibility, 52. §§469, 470. Form; infant plain- tiff's petition for appointment of guardian, 51. § 470. Infant's application for guardian, 49. By whom application for appoint- ment of guardian made, 49. §471. "Competent and respon- sible" person for guardian, 49. Form; infant defendant's petition for appointment of guardian, 52. Form; petition of relative or party to action for appointment of guard- ian, 53. § 472. County judge's power, 341. Form; court or judge's order ap- pointing guardian for infant defend- ant, 54. Form; infant defendant's applica- tion for court or judge's order ap- pointing guardian, 55. § 473. Guardian for nonresident infant, 47. Form; affidavit seeking appoint- ment of guardian for resident infant temporarily absent, 56. Form; order designating guardian for resident infant defendant tem- porarily absent, or residing out of State, 56. § 474. Security required before guardian can collect judgment, 50. §§ 474, 475. Form; guardian's bond before receiving property, 57. § 476. Additional security may be required of general guardian, 50. § 479. Time within which notice of appearance may be served, 159. § 481. Caption of complaint, 244. § 497. Motion for leave to plead over, 313. § 498. Misjoinder; when objection to be made, 630. Defect of parties plaintiff, 631. Defect of parties defendant, 631. § 499. Waiver of objection to mis- joinder of parties plaintiff, 630. Defect of parties plaintiff, 631. Defect of parties defendant, 631. Objections to defect of parties, 632. § 500. Caption of answer, 244. Denial of matter between certain folios, 294. § 513. Verification; defense involving the merits, 527. not § 523. Verification of a complaint, 526. Verification; pleadings subsequent to one verified, 528. Verification; omission of, 529. §§ 524—526. Form; verification by attorney of a foreign corporation, 537. § 525. Verification; by whom made, 530. Verification, by whom made; for- eign corporation, 531. Ixxx beadbuey's Lansing's poems aj^d pbacticb. Verification by one of two part- ners, 533. Form; verification by officer of domestic corporation, 535. Form; verification of pleading in behalf of people of the State, 535. § 525, subd. 1. Verification; by whom made, 530. § 525, subd. 2. Verification on information and belief, 535, note. § 526. Verification; by whom made, 530. Verification; when made by a per- son other than the party, 531. Verification; by whom made; for- eign corporation, 531. Verification; when made for a cor- poration, 532. Form of verification of pleadings, 533. Verification on information and belief, 535, note. Form; verification by a party, 534. § 527. Counter claim to unverified complaint, 529. § 528. Defective verification; rem- edy for, 533. § 529. Verification; defendant not excused from, 529. § 542. Time in relation to default in pleading, 265, note. § 543. Time in relation to default in ples^ding, 265, note. § 549. Arrest; where right depends on the nature of the action, 763. Proceedings to obtain order, 778, 779, 781. Form; affidavit to obtain order of arrest, where right depends on the nature of the action; general form, 784. Form; arrest; affidavit to obtain order, 785. § 549, subd. 1. In a.ction to re- cover a fine or penalty, 763. § 549, subd. 2. To recover dam- ages for an injury to property includ- ing the wrongful taking, detention or conversion of personal property, 764. To recover damages for a personal injury, 764. Breach of a promise to marry, 765. Misconduct or neglect in office, or in a professional employment, 765. Fraud, or deceit, 765. To recover a chattel, 766. To recover for money received, etc., 767, Form; complaint by foreign cor- poration to obtain order; conversion, 787. Form; affidavit to obtain order of arrest; conversion of money received in a fiduciary capacity, 788. Form; affidavits; conversion of money received in a fiduciary capac- ity; another form, 790. Form; complaint and affidavits; conversion, by indorsing another's stock certificate, 793. Form; allegations in complaint; conversion, 795. Form; affidavits; conversion of funds given defendant for another purpose, 796. Form; affidavit; personal injxuy, cruelty, in action for Umited divorce, 799. Form; complaint and affidavits; slander, 802. Form; complaint and affidavits; fraud, 803. Form; complaint and affidavits; fraud with reference to the owner- ship of a judgment, 806. Form; affidavit; fraud in contract- ing a liability, 809. Form; complaint and affidavits; TABLE OF CODE CITATIONS, Ixxxi fraud .and deceit in forming partner- ship, 812. Form; allegations in complaint; action for willful injury to property, defendant being a woman, 815. Form; allegations in complaint; action for a personal injury; aliena- tion of wife's affections, 816. Form; affidavits; concealment of chattel, 818. Form; judge's order for arrest; personal injury, 826. §549, subds. 2 and 4. Arrest; proceedings to obtain order, 779. § 549, subd. 3. To recover mon- eys held by the State, 768. To recover damages for obtaining, tetc, moneys held by the State, 768. Arrest; undertaking; ui action to recover State moneys, 863.- § 549, subd. 4. In contract action, where fraud is alleged, 768. § 550. Arrest a substitute for the writ of ne exeat, 761. Arrest, depending on extrinsic facts, 770. Arrest; proceedings to obtain or- der, 778, 782. Undertaking; where the order can be granted only by the court, 863. Form; affidavit to obtain order -where right depends partly on ex- trinsic facts; general form, 786. Form; arrest; affidavit to obtain order, 785. Form; affidavit; nonresidence, S17. Form; order of the court for arrest of defendant in civil action, 828. § 551. Arrest; by whom order granted, 770. Arrest; proceedings to obtain order, 778, 779. Arrest; undertaking; where the order can be granted only by the court, 863. § 552. Foreign judgment not a bar to action for arrest, 762. § 553. Arrest; exemptions; wo- man, 775, 776. § 554. Arrest; lunatic, idiot, etc., exempt, 774. Form; application for discharge from arrest of lunatic, idiot, or infant under fourteen years of age, 847. Form; order discharging lunatic, idiot, or infant under fourteen years of age from arrest, 848. Form; recital in notice of motion for discharge of lunatic, idiot, or in- fant under fourteen years of age from arrest, 848. § 555. Arrest; executor, adminis- trator, etc., exempt, 774. § 556. Arrest; county judge's power, 341. Arrest; proceedings to obtain order, 778. § 557. Arrest; proceedings to ob- tain order, 779, 781, 783. Arrest; bail, 781. By whom affidavit to obtain order of arrest may be made, 784, note. Form; affidavit to obtain order of arrest, where right depends on the nature of the action; general form, 784. Form; affidavit to obtain order where right depends partly on ex- trinsic facts; general form, 786. § 558. Summons to accompany application for order of arrest, 83. Arrest; proceedings to obtain or- der, 779. § 559. Undertaking, when order of arrest is granted by judge, 863. Ixxxii Bradbury's Lansing's forms and practice. Arrest; undertaking, in action to recover State moneys, 863. § 559. Arrest; service of new un- dertaking, 865. Form; undertaking by surety com- pany on obtaining order of arrest, 868. § 560. Arrest; undertaking; form thereof, 864. § 561. Arrest; time allowed for, 823. Order of arrest; subscriptions, 823. Order of arrest; direction to sheriff, 823. Form; indorsement by plaintiff's attorney upon order of arrest, limit- ing time for arrest, 829. § 562. Arrest; execution of the order, 824. Filing undertaking on arrest, 287. § 563. Arrest; execution of the order, 824. § 564. Arrest; remedy for viola- tion of exemption, 777. Order discharging privileged per- son from arrest; proceedings to ob- tain it, 822, note. Form; affidavit to procure dis- charge of privileged person, 821. Form; order discharging privi- leged person from arrest, 822. § 565. Arrest; exemptions, 774. § 566. Effect of arrest order; time to answer, 825. § 567. Vacating arrest order; when motion is to be made, 830. Arrest; bail undertaking; defend- ant may move to reduce the amount, 852. Form; notice of motion to vacate order of arrest, 838. Form; order to show cause why order of arrest should not be vacated, 839. Form; order vacating order of arrest, 840. Form; order vacating order of arrest, 841. Form; order denying motion to vacate, 842. § 568. Motion to vacate arrest order on original papers, 831. Motion to vacate arrest order; when made on new proof, 832. Form; notice of motion to vacate order of arrest, 838. Form; order to show cause why order of arrest should not be vacated, 839. Form; order vacating order of arrest, 840. Form; order vacating order of arrest, 841. Form; order denying motion to vacate, 842. Grounds for vacating arrest order; unnecessary delay, 835. Applies only in Supreme Court, 835. Form; affidavit to procure dis- charge from arrest, where judgment is not duly entered or execution not duly issued, 844. Form; notice of motion for dis- charge of defendant from custody, under order of arrest, etc., where judgment not duly entered or execu- tion not duly issued, 845. Form; order discharging defendant from arrest, when judgment has not been duly entered, or execution has not been duly issued, 846. § 573. Deposit by person arrested, 276. Arrest; how discharge of defend- ant is obtained, 850. §§ 573-590, Discharging, upon TABLE OF CODE CITATIONS. Ixxxiii bail or deposit, a defendant under arrest, 864. § 574. Deposit by person arrested, 276. Arrest; defendant may elect to give bond for jail liberties, etc., 860. § 575. Arrest; bail undertaking, 851. Arrest undertaking; distinct from that provided for in § 149, 864. § 575, subd. 1. Form; undertak- ing to procure discharge from arrest, 852. § 575, subd. 2. Form; undertak- ing to discharge from arrest, 853. § 575, subd. 3. Form; undertak- ing to discharge from arrest, 854. § 576. Arrest; bail undertaking, 853, note. §§ 576-581. Justification of sure- ties on bail bond, 217. § 577. Notice of exception to sure- ties, 238, note. Form; notice by plaintiff's attorney of nonacceptance of bail, 854. § 578. Notice of justification of sureties, 238, note. Notice of justification of sureties, 239, note. Form; notice of justification of bail, in undertaking to discharge from arrest, 855. § 579. Who may be surety, 215. Justifying; in what amount, 218. § 581. Arrest; allowance for bail, 853, note. Form; allowance by judge of bail, in defendant's undertaking to obtain discharge from arrest, 855. § 582. Deposit by person arrested, 276. Jail liberties; amendments relating thereto, 825. Form; certificate by sheriff to de- fendant, on deposit of amount speci- fied in order, 856. § 583. Deposit by person arrested; what sheriff is to do, 276. Form; certificate of county treas- urer of payment into court of money deposited with sheriff, 856. § 584. Form; order on substitu- tion of bail for deposit, 857. § 585. Disposition to be made of money deposited in lieu of bail, 276. § 586. Deposit by person arrested, 277. Form; direction by defendant to sheriff, to pay amount of deposit to third person, 857. Deposit by person arrested, 277. § 590. Arrest; execution of the order, 824. Arrest; sheriff to file papers, 825. §§ 591 et seq. Charging and dis- charging bail, in cases of arrest, 849. § 592. Form; notice of motion for exoneration of bail after surren- der, 858. Form; certificate of sheriff on surrender of defendant by his bail, 858. Form; order exonerating bail, after surrender of defendant, 859. Form; requisition upon sheriff, by bail of defendant, upon his surrender by them, 860. § 593. Form; authority given by bail to arrest defendant, 860. Ixxsdv bbadbuey's Lansing's forms and practice. § 594. Form; sheriff's certificate of voluntary surrender of prisoner, in exoneration of bail, 861. Form; requisition by defendant, upon his own voluntary surrender, 861. § 601. Order exonerating bail in case of death of defendant, etc., 862, note. Form; order exonerating bail in case of death of defendant, etc., 862. § 606. Who may grant injunction order, 341. County judge's power, 341. § 608. Injunction order granted to accompany summons, 83. § 635. Attachment; when granted, 635. Attachment; what plaintiff must show, 640. Attachment; securing credit by false statement, 641. Attachment; securing credit by means of false statement, 642. Statement of cause of action in warrant of attachment, 671, note. Form; affidavit for attachment against nonresident or foreign cor- poration; contract action, 662. Forms; recitals in warrant of various causes of action, 671. § 635, subd. .3. Attachment; con- version of personal property, 636. §§ 635 et seq. Attachment, 635. § 636. What plaintiff must show, 641. Attachment; securing credit by means of false statement, 642. Attachment; moving papers must show existence of good cause of ac- tion, 653. Attachment; nonresidence, 657. Not applicable in New York City Court, 669. Attachment; fraudulent transfer, 659. Statement of ground of attach- ment in warrant of attachment, 671, note. §636. (As am'd 1894.) Attach- ment; securing credit by false state- ment, 641. § 636. Form; affidavit for attach- ment against nonresident or foreign corporation; contract action, 662. Form; attachment against non- resident defendant, in other than contract action; affidavit, 664. Form; attachment; affidavit of fraudulent disposition of property, 665. Form; recitals in warrant of vari- ous grounds of attachment, 672. § 636, subd. 1. Attachment; "above all counterclaims," 640, 655. § 636, subd. 2. Attachment; non- residence, 640. Form; affidavit for attachment against property of absconding, etc., defendant, 664. § 637. Attachment; securing credit by false statement, 641. Form; affidavit for attachment in action against public officer, etc., for peculation, 666. § 638. Service of summons after warrant of attachment is granted, 83. Effect, if summons is not served within the time limited, 122. County judge's power, 341. Attachment; when granted, 640. Service of summons to follow at- tachment, 642. Vacating an attachment; where summons has not been served, 723. TABLE OF CODE CITATIONS. Ixxxv § 639. Filing undertaking on at- tachment, 287. Filing affidavit on attachment, 287. Vacating an attachment; where papers on which it was granted have not been served, 724. § 640. Sureties on undertaking to procure attachment, 217. Undertaking on attachment, 723, 744. Undertaking on attachment; num- ber of sureties, 745. Right of action on attachment undertaking, 746. Form; undertaking on attach- ment, 233. Form; undertaking on granting warrant of attachment, 749. § 641. Warrant of attachment must be subscribed by judge, and by plaintiff's attorney, 668. Not applicable in New York City Court, 669. Warrant of attachment; to whom directed, 670, note. Form; warrant of attachment, 670. Form; recitals in warrant of vari- ous grounds of attachment, 672. § 644. The 'sheriff's levy, in at- tachment, 675. Attachment; the levy; taking books into custady, 676. § 645. Attachment; what real property subject to, 646. § 646. Attachment; what sub- ject to, 643. § 649. Attachment; what sub- ject to, 643. Form; notice of attachment of real estate, 685. § 649, subd. 1. Attachment; levy, how made upon real property, 675. Attachment notice; requisites, 685, note. § 649, subd. 2. Attachment; what subject to, 644. Attachment; levy, how made upon personal property capable of manual delivery, 676. § 649, subd. 3. Attachment; what subject to, 644. Pledgor's interest in property, 677. Attachment; the levy; choses in action, 677. Copy of attachment warrant must be certified, 678. Attachment levy; interest in cor- poration or association, 678. Attachment; levy on debts, 679. Form; notice of attachment of personal property, not capable of manual delivery, 686. Foi-m; sheriff's certificate to be indorsed on copy attachment served on debtor, etc., 686. § 649, subd. 4. Attachment; levy on property discovered, 678. § 650. Attachment levy; exami- nation of third person, 681. Form; certificate of interest of de- fendant in property, on demand of sheriff, under attachment, 687. § 651. Attachment levy; exami- nation of third person, 681. Subpoena duces tecum, in attach- ment proceedings, 505. Form; sheriff's certificate of re- fusal to certify as to property sought to be attached, 688. Form; affidavit of refusal to give certificate of property of defendant, or as to false or insufficient certificate, 688. Form; order for examination of person refusing to give certificate, or making false or insufficient certifi- cate, 689. Ixxxvi bradbuky's Lansing's forms and practice. § 652. Form; undertaking upon attachment of goods on vessel to procure delivery, 756. § 654. Filing inventory of prop- erty attached, 691. Form; inventory and appraisal of property attached, 691. § 655. Action by sheriff to set aside fraudulent transfers, 678. Action in aid of attachment; brought by sheriff, 682. § 655, subd. 2. Attachment ; levy on property discovered, 678. Action in aid of attachment; to set aside transfers of property in fraud of creditors, 683. § 656. Where perishable property is attached, 684. Sale of live animals attached; notice to parties, 693, note. Form; order for sale of perishable property and of live animals attached by sheriff, 692. § 657. Attachment levy; claim to attached property, 683. § 657 . (As am'd by L. 1904, c. 541 .) Attachment; claims by third per- sons, 748. §658. (Asam'dbyL. 1904, c. 541.) Attachment; claims by third per- sons, 748. Form; imdertaking where attached property is claimed by third person, 750. § 658a. Procedure on application for discharge of attachment where third party claims property, 749. Undertaking by third person who claims property taken under an at- tachment against another, 751. § 660. Form; order appointing ap- praisers to make valuation of domes- tic or foreign vessel, 694. Form; affidavit to obtain appraisal of domestic or foreign vessel held under attachment, 694. § 661. Form; valuation of domes- tic or foreign vessel, or interest therein, attached by sheriff, 695. § 662. Form; undertaking to dis- charge domestic vessel from attach- ment, 757. § 663. Form; order discharging vessel from attachment, 696. § 666. Order appointing apprais- ers to make valuation of domestic or foreign vessel, 694. Form; affidavit to obtain appraisal of domestic or foreign vessel held under attachment, 694. Form; valuation of domestic or foreign vessel, or interest therein, attached by sheriff, 695. § 667. Notice of application for valuation to be made of foreign ves- sels, 695, note. § 668. Form; undertaking to be given by the plaintiff in case of at- tachment of foreign vessel to pre- vent its discharge, 759. § 669. Form; order discharging foreign vessel from attachment, on failure of plaintiff to give undertak- ing, 697. § 670. Form; affidavit of defend- ant on application for the foreign vessel or its proceeds, 698. Form; undertaking by defendant to obtain possession of vessel, after discharging or vacating of attach- ment, 758. § 671. Form; order for sale of vessel where undertaking of plaintiff is not discharged, or he is not in- demnified, 699. TABLE OF CODE CITATIONS. Ixxxvii § 672. Form; order for sale of ves- sel, where proper undertaking is not executed by claimant, 700. § 673. Form; order directing sale of vessel upon application of joint owner, 701. § 675. Order directing sheriff to pay into court the proceeds of prop- erty sold, or demands collected under attachment, 702, note. Form; order directing sheriff to pay into court the proceeds of prop- erty sold, or demands collected under attachment, 702. § 676. Form; order directing sher- iff to pay over surplus, on application of defendant or his assignee, 702. § 677. Action in aid of attach- ment; brought by plaintiff, 682. Attachment; action in aid of, 682. Form; order granting leave to plaintiff to bring action in the name of himself and the sheriff, to recover property attached or the value thereof, 703. § 678. Form; order granting leave to plaintiff to bring action in the name of himself and the sheriff, to recover property attached or the value thereof, 703. § 679. Form; order granting leave to plaintiff in attachment suit, to join in action brought by sheriff, 704. § 681. Form; order requiring sher- iff to return an inventory of property attached by him, 692. § 682. Vacating attachment; who may move, 715. Vacating attachment at suit of junior attaching creditor or execu- tion creditor, 716. Vacating an attachment; meaning of "defendant," 717. I When motion to vacate attach- ment may be made, 718. Increasing the attachment under- taking, 745. Motion to vacate or modify at- tachment, or to increase security, 725, notes. Form; notice of motion to vacate or modify attachment, or to increase security, 725. Form; order to show cause why attachment should not be vacated or modified or security increased, 728. Form; affidavit on behalf of person holding junior hen to vacate prior attachment, 729. Form; affidavit of party or attor- ney supplementary to Form No. 406, 731. Form; order vacating or modify- ing attachment or requiring increased security, 733. § 683. Where motibn to vacate attachment may be made, 718. Motion to vacate attachment may be made on the original, or new papers, 719. Form; notice of motion to vacate attachment on papers on which it was granted, 726. § 687. Discharge of attachment; how obtained, 735. The words, " and before final judg- ment," dropped, 736. Discharging attachment, as to a wliole, or part, of the property at- tached, 748. Form; affidavit to procure dis- charge of attachment upon giving undertaking, 739. Form; order discharging attach- ment, 740. §§ 687-696. Procedure on dis- charging attachment, 736. Ixxxv'ii b"radt3Ury''s Lansing's forms and practice. § 688. Undertaking on discharge of attachment, 736. Addition made by L. 1906, c. 507, as to security, 736. The undertaking on obtaining dis- charge of attachment, 747. Undertaking, on apphcation to discharge attachment, 752, note. Form; undertaking by defendant, on apphcation to discharge attach- ment, 752. Form; undertaking by surety com- pany on discharging attachment, 753. § 689. Order discharging attach- ment, 736. Affidavit to procure discharge of attachment upon giving undertak- ing, 739, note. Undertaking; where proof is made by appUcant on discharging attach- ment, that property belongs to him separately, 754, note. Form; notice of motion to dis- charge attachment upon giving se- curity, 742. Form; undertaking where appli- cation is made by some, but not all, of several defendants, 754. § 690. Justification of sureties; at- tachment, 217. Notice of exception to sureties, 238, note. Notice of justification of sureties, 239, note. Discharging attachment; sureties to justify if required, 748. Undertaking, on application to discharge attachment, 752, note. Form; notice of exception to suf- ficiency of sureties in imdertaking given on discharge of attachment, 760. § 691. Discharging attachment ; sheriff's costs; the sureties, 736. § 693. Form; affidavit by partner for discharge of interest in partner- ship property from attachment upon notice, 741.. § 694. Undertaking on discharge of attachment; the amount, 755, note. Form; undertaking, on application by partner, to discharge attachment from partnership property, 754. § 695. Form; order of reference to take proof as to value of property attached, 743. § 696. Discharging attachment ; notice, 736. Form; notice of motion for dis- charge of attachment as to firm property upon giving security, 742. § 697. Attachment levy; priority of liens, 680. § 701. Form; order permitting junior attachment creditor to give undertaking to prevent release of foreign vessel, 705. § 703. Action in aid of attach- ment, to protect rights of junior attaching creditors, 682. § 704. Action in aid of attach- ment, to protect rights of junior attaching creditors, 682. Form; order granting leave to junior attaching creditor, to com- mence action jointly with sheriff, 706. § 707. Judgment unenforceable against unattached property, 647. § 708, subd. 5. Application by sheriff for sale of attached debts and things in action; what affidavits and papers required, 709, note. Application by sheriff for sale of debts, etc., attached; notice to de- fendant's attorney, 710, note. Form; petition for sale by sheriff TABLE OF CODE CITATIONS. Ixxxix of debts and things in action under attachment, 707. Form; affidavit of sheriff accom- panying petition for sale of debts, etc., attached, 708. Form; notice of application by sheriff for sale of attached debts and things in action, 709. Form; order directing sheriff to sell debts and things in action at- tached, 710. § 710. Form; affidavit of defend- ant on application to be substituted for sheriff in suit on attached demand, 711. Form; order substituting defend- ant in suit by sheriff, or by sheriff and plaintiff jointly, for property attached, 712. § 711. Form; affidavit to procure order canceling notice attaching real property in attachment suit, 713. Form; order canceling notice at- taching real property, 714. Order to show cause; absence of judge, 312. Notice of motion for order can- celing notice attaching real property, 714, note. § 712. Return of an attachment, 459. § 715. Liability of surety on re- ceiver's bond, 222. § 717. Deposit of money held as trustee, 277. § 718. Deposit of money held as trustee, 277. § 719. Application for more than one provisional remedy, 637. § 721. subd. 3. Imperfect return cured by verdict, 456. §§ 721-724. Curing defects, 207. § 723. Curing defects, 207. Bringing in additional tort fea- sor, 621. Court has broad powers to amend, 626. Order of arrest; supplying omis- sion, 823. How far the court can amend, 627. Amending warrant of attachment, 669. § 724. Motion for relief on the ground of mistake, etc., 320. § 726. If original paper is lost, 290. § 727. Papers filed not to be changed, 290. § 728. Defects in affidavits, 191. Offer of judgment in equitable actions, 411. § 729. Requisites of bond or un- dertaking, 214. Arrest; what is a sufficient un- dertaking, 865. § 730. Amendment to bond or undertaking, 219. Arrest; amending the undertak- ing, 865. § 731. Acceptance of tender, 428. Tender, made after suit brought, 430. §§ 731 et seq. Tender after suit, 514. §§ 731-734. Tender, 408. §§ 731-740. Liquidating damages after suit brought, 407. § 732. Notice of payment into court, 428. Acceptance of tender, 428. Tender made after suit brought, 430. Plaintiff's acceptance of tender, 431. xc Bradbury's Lansing's forms and practice. Tender after suit brought; time given plaintiff, 515. Tender after suit brought; neces- sity for acceptance or payment into court, 515. Trial after tender not accepted, 524. Tender; service of notice of ac- ceptance, 525, note. § 736. Offer to liquidate damages conditionally, 408. Offer by defendant to liquidate damages conditionally, 420, note. Form; acceptance by plaintiff of offer to liquidate damages, 420. Tender; what constitutes accept- ance, 525, note. Form; notice of payment of money into court, 393. Form; notice of payment into court of amount tendered by defendant, 431. § 733. Tender after suit brought; interest, 522. § 734. Continuing suit after ac- ceptance of tender, 431. Form; offer by defendant to liqui- date damages conditionally, 420. § 737. Effect of refusal of offer of judgment, 408. § 738. Defendant's offer to com- promise suit, 409. Offer of judgment in a mechanic's lien case, 422. Form; offer by defendant to allow judgment to be taken against him, 421. Form; offer of judgment in me- chanic's lien case, 421. Form; acceptance by plaintiff of the offer of defendant, 424. Form; judgment for plaintiff on filing offer and acceptance, 425. § 739. Plaintiff's offer to compro- mise counterclaim, 419. Offer by plaintiff, when defendant sets up a counterclaim, 422. Form; acceptance by defendant of plaintiff's offer for judgment, 425. Form; judgment on acceptance by defendant of offer of judgment, 426. § 740. Offer of judgment, and ac- ceptance, by whom subscribed, 412. Offer of judgment, after appeal, 413. Form; affidavit of attorney as to authority to make offer of judgment, 423. Form; affidavit of attorney as to authority of attorney to accept offer of judgment, 424. § 743. Deposit of money held as trustee, 277. §§ 755-766. Reviving an action, 511. § 756. Substitution of parties in case of transfer of interest, 623. § 758. Where a defendant dies, 633. § 767. "Order" defined, 326. Order to be in writing, 327. § 768. Motion in taking default, 267. "Motion" defined, 299. Where application for order is heard, 309. Orders on notice, 309, note. § 768. (As am'd by L. 1900, c. 147.) Effect of default in action on place of making motion, 310. § 769. Limitations relating to practice motions; first judicial dis- trict, 307. Orders on notice, 309, note. Motion to amend divorce decree, 310. Motion, upon notice, where made, 310. TABLE OF CODE CITATIONS. XCl Where not applicable, in proceed- ings to vacate attachment, 719. Motion to vacate arrest order; in first judicial district, 831. Motion to vacate arrest order; to whom made, 832. § 770. Limitations relating to practice motfons in first judicial dis- trict, 307. Motions in first judicial district, 311. Arrest; by whom order granted; in first judicial district, 770. Arrest; proceedings to obtain order, 778. § 772. Vacating an order to ex- tend time, 282. Ex parte order to show cause, 308. Who may make order to show cause, 307. Ex parte order made by judge out of court, 311. Method of reviewing specific kinds of orders, 317. Vacating order, 337. Modifying order, 337. What judge may make an order, 340. § 776. Motion; if previous appli- cation has been made, 304. Making new motion after refusal, 313. § 778. Making new motion after refusal, 314. Motion; if previous application has been made, 304. § 779. Effect of nonpayment of costs of former motion, 322. What are motion costs, 323. Stay for nonpayment of costs, 469. Order conditioned on payment of costs, 470. Stay of proceedings when judg- ment is interlocutory, 473. § 780. Notice of motion; time, 301. Inaugurating special proceeding, 305. Order to show cause, 305. Who may make order to show cause, 307. § 780. Who may make order to show cause, 306. Ex parte order to show cause, 308. County judge's power, 341. Order to show cause, 361, note. Form; notice of motion, 344. Form; order to show cause, 361. § 781. Extension of time, 282. Form; affidavit to procure exten- sion of time to answer or demur, 285. § 782. Requisites of serving order extending time, 282. § 783. Opening a default, 269. Extension of time, 282. County judge's power, 341. § 784. Opening a default, 269. When time cannot be extended, 282. § 785. When time cannot be ex- tended, 282. §§ 785 et seq. Substitution of par- ties, executors of a deceased party, 623. § 786. Publication; action brought for collective benefit of creditors, 443. Creditor's action to set aside as- signment; publication, 443. Publication; notice to creditors, 447. § 787. Service by mail of notice of motion, etc., 301. Period of publication, 445. § 788. Repealed, 'years," 284. Reckoning xcii Bradbury's Lansing's forms and practice. §§ 803-809. Petition for discovery of books and papers, 434. § 805. Petition for discovery of books or papers, 435. Order for inspection may contain stay of proceedings, 466. § 810. Acknowledgment of under- taking, 214. Acknowledgment of bond, 224, note. §§ 810-816. Arrest; bonds and un- dertakings, 853. § 811. Party need not join with sureties on undertaking, 214. Sureties on undertaking, 214. Surety company executing bond, 220. Surety company as surety, 224, note. Undertaking on attachment; num- ber of sureties, 745. § 812. Who may be surety, 215. • Who is "householder," 215. Justifying; in what amount, 218. Relief for surety on bond of trus- tee, 219. Party's affidavit with bond, 224, note. Form; bond in legal proceeding; general form, 223. Form; undertaking in legal pro- ceeding; general form, 225. Form; affidavit in proceeding by surety on bond of trustee, etc., to be relieved from further liability, 240; also, 240, note. Form; order requiring trustee, etc., to furnish new bond, 241. Form; order requiring trustee, etc., to account after filing new bond, 242. Form; order removing trustee, etc., and compelling him to account upon failure to file new bond, 242. § 813. Countersigning check by surety, 215. Justifying; in what amount, 218. § 814. Forms; leave to sue official bond, 44. § 815. Effect of change of parties on undertaking, 220. Substitution; no effect on bond or undertaking, 623. § 816. Filing bond or undertak- ing, 220. Filing bond or undertaking, 287. § 824. Filing summons and plead- ings, 286. Form; affidavit to compel filing of summons or pleading, 291. Form; order compelling filing of summons or pleading, 291. § 825. Filing the papers in a special proceeding, 290. § 826. Publication; if no news- paper is published in county, 450. § 827. Reference to determine suf- ficiency of sureties, 217. § 835. Privileged communications, 584. § 836. Subpoena on hospital sur- geon, etc., 501. § 842. Before whom affidavit may be sworn to, 193. § 843. Who may take affidavits, 193. § 844. Acknowledgment, in desig- nation by foreign corporation of a person to receive service, 143. Affidavit taken without the State, 194. Authentication of affidavit, 198. Affidavit taken without the State, 199. TABLE OF CODE CITATIONS. xcm § 845. Oath in making affidavit, 199. Mode of swearing, 396. Modes of swearing, 397. Form; oath to be administered to subscribing witness, 187. § 846. Oath in making affidavit, 199. Mode of swearing, 396. Modes of swearing, 397. Form; oath to be administered to subscribing witness, 187. § 847. Oath in making affidavit, 199. Affirmation, 396. Form; affirmation to be adminis- tered to an affiant, 188. § 848. Form; oath to a deponent sworn with the uplifted hand, 189. Oath in making affidavit, 199. Modes of swearing, 396. § 849. Swearing person not a Christian, 397. §850. Examining infant witness, 397. § 851. Swearing falsely to affi- davit, 199. Swearing falsely, 397. § 851. (As am'd 1899.) Affidavit signed but not orally sworn to, 398. § 853. Subpoena; penalty for dis- obeying, 502. § 854. Subpoena; how issued, 498. Subpoena; legislative committee may issue, 499. Subpoena, by whom signed, 507. § 866. Subpoena duces tecum; records, 504. § 867. Subpoena duces tecum, 503. Subpoena duces tecum, in hearings in special proceedings, 503. Subpoena duces tecum, time given witness thereunder, 503. Subpoena duces tecum; relief from, 505. § 868. Subpoena duces tecum in hearings in special proceedings, 503. Subpoena duces tecum, in case of corporation, 504. § 885. Reference to take deposi- tion to use on motion, 324. Deposition, 325. Order to take the deposition of a witness to be used on a, motion, 356, note. Order to take the deposition of a witness to be used on a motion, 357, note. Subpoena to witness to make dep- osition for use on a motion, 357. Testimony, in report of referee appointed to take deposition to be used on a motion, 359, note. Fees for publishing summons, 451. Compelling publisher to make affidavit of publication, 452. Subpoena; how issued, 498. Deposition of a witness for use on a motion, 507. Affidavit from witness who refuses- to make one, 650, note. Form; affidavits to procure dep- osition, to be used on motion for new trial, 349. Form; affidavit of attorney to procure deposition of witness, 353. Form; affidavit as to refusal of witness to make affidavit, 354. Form; order to take the deposi- tion of a witness to be used on a motion, 355. Form; subpoena to witness to make deposition for use on motion, 357. Form; notice of hearing before referee to take deposition of witness when time is not fixed in order, 35& xciv Bradbury's Lansing's forms and practice. Form; report of referee appointed to take deposition to be used on a motion, 358. § 886. Deposition for use on a motion, 325. Order to talce the deposition of a witness to be used on a motion, 356, note. § 889. County judge's power, 341. § 912. Affidavit where affiant is a foreigner, 204. § 914. Time to be given witness whose deposition is sought, 503. § 915. Petition for subpoena to a witness under a deposition, 435. Subpcena; testimony must be taken in this State, 499. Time to be given witness whose deposition is sought, 503. § 921. Form; certificate of officer that document cannot be found, 248. §§ 921-962. Copies of documents, 250. § 922. Certificate of pubhc officer, 246, note. Exemplified copy presumptive proof, 251. § 928. Copy of a marriage certifi- cate, 251. §§ 929-931. Copies of books of foreign corporation, 251. § 933. Copy of paper filed in pub- hc office, 251. What copy proves, 252. § 934. Copy of paper in town clerk's office, 252. § 935. Copy of a conveyance, 251. § 936. Effect of acknowledgment, 168. Copy only presumptive evidence, 251. § 937. What instruments may be acknowledged, 168. § 938. Transcript of a justice's docket, 252. § 939. Transcript of a justice's docket, 252. Form; authentication of tran- script from justice's docket, 255. § 941. Copy of municipal ordi- nance, 252. § 942. Printed copy of foreign law, 252. § 943. Copy of records of United States courts, 252. § 944. Copy of U. S. document, 252. § 945. Transcript of record of sale of vessel, 253. § 947. Exemplification of convey- ance in another State, 253. § 948. Form; authentication of judgment of foreign justice, 256. §§ 948-951. Transcript of foreign justice's docket, 252. § 949. Form; authentication of judgment of foreign justice, 256. § 952. Copy of record of foreign court, 253. Form; exemplified copy of judg- ment of foreign coimtry, 261. § 953. Form; exemplified copy of judgment of foreign country, 261. § 956." Copy of patent, 253. § 957. Certificate of clerk to copy of paper on file, 247, note. Comparing a copy, 253. TABLE OF CODE CITATIONS. XCV Form; certificate of clerk to copy of paper on file, 248. Form; exemplified copy of judg- ment of foreign country, 261. § 958. Certificate of comparison of copy to be under seal, 253. § 962. Party may prove record without copy, 250. § 977. Number of days before trial that notice must be served, 470. § 988. Change of place of trial; filing, 289. § 1010. What is a decision in writing, 327. §1011. Order of reference, 310. § 1016. Form; oath of referee, 399. Oath of referee, 399, note. § 1048. Return after notifying jurors, 459. §1200. Meaning of "judgment" in cases of arrest, 770. § 1207. Judgment, in case of de- fault, 268. § 1212. Complaint; verification or proof, 526. § 1213. Complaint; verification or proof, 526. § 1214. Default; assessment of damages, 269. § 1215. Default; assessment of damages, 269. § 1216. Judgment by default, in money action, 266. §1217. Effect, in money actions, of service by publication or person- ally without the State, 123. Judgment by default in money action, 266. § 1218. Default judgment in case of infant, 266. §1237. Filing the judgment roll, 288. § 1238. Who makes up judgment roU, 290. § 1239. Necessity of filing judg- ment roll, 290. § 1246. Docketing judgment roll, 288. § 1268. Publication; notice to dis- charge judgment, 447. § 1274. Statement to be filed in confessing judgment, 60. Form; statement; confession of judgment, 64. § 1275. Judgment by confession, where entered, 70, note. Form; judgment entered by con- fession, 70. Form; biU of costs on entry of judgment by confession, 71. § 1276. Judgment by confession; how enforced, 63. § 1278. Confession of judgment by joint debtors, 61. § 1279. Jurisdiction of appellate division; submission of controversy, 72. Form; verification of submission, 78. Enumerated motions, 300. §§1279, 1281. Form; statement on submission of controversy, 76. xcvi Bradbury's Lansing's forms and practice. § 1281. As to entry of judgment on submission, 78, note. Form; judgment on submission, 78. Form; money judgment on sub- mission of controversy, 79. § 1296. Person entitled to be sub- stituted may appeal, 623. § 1303. Relief from default in serving notice of appeal, 269. Relief from omission to serve no- tice of appeal on one of two defend- ants, 605. § 1306. Deposit, in place of imder- taking on appeal, 277. § 1307. Filing imdertaking on ap- peal, 287. § 1310. Stay of proceedings, per- fecting appeal to the Court of Ap- peals, 475. § 1312, subd. 2. Security re- quired to stay execution of judg- ment appealed from, 476. § 1314. Appeal by executive city official acts as stay, 467. § 1326. Form; undertaking on ap- peal to the Court of Appeals, 236. § 1327. Form of undertakmg, 221. § 1328. Undertaking to stay ex- ecution, 473. § 1329. Undertaking to stay exe- cution, 473. § 1331. Form of undertaking, 221. § 1335. Approval of an under- takmg, 477. § 1346. Enumerated motions, 300. § 1349. Enumerated motions, 300. § 1351. Form; undertaking on ap- peal from order, without stay, 237. § 1351. (As am'd 1903.) Stay on execution for money judgment, 467. § 1406. Attachment levy; priority of liens, 680. § 1418. (As am'd by L. 1904, c. 541.) Attachment; claims by third persons, 748. § 1419. Notice of justification of sureties, 239, note. § 1419. (As am'd by L. 1904, c. 541.) Attachment; claims by third persons, 748. §1421. (As am'd 1900.) Indem- nitors may be substituted, 623. § 1434. Sale under execution; time of publication, 441. Publication; sale of realty under execution, 448. § 1512. Stay, in action to recover real property, 474. § 1513. Stay, in action to recover real property, 474. § 1536. Guardian's bond in parti- tion suit, 54, note. § 1562. Publication; referee's no- tice in partition suit, 448. § 1564. Publication; partitioii suit, 448. § 1582. Publication; partition ac- tion, 448. § 1605. Default of an infant's guardian; effect of, 266. § 1608. Form; oath of commis- sioner or referee in dower action, 400. § 1670. Filing summons and plead- ings, 286. TABLE OF CODE CITATIONS. XCVll § 1674. Notice of justification of sureties, 239, note. § 1678. Publication; sale of real property in equity action, 448. § 1693. Seizure of chattel by sher- iff regarded equivalent to commence- ment of action, 85. § 1703. Notice of exception to sureties, 238, note. Notice of justification of sureties, 239, note. § 1704. Notice of justification of sureties, 239, note. § 1705. Justification of sureties; replevin, 217. Notice of justification of suifeties, 239, note. § 1714. Right to a, replevin, in case of arrest, 766. § 1757. Verification of answer in divorce action, 529. § 1774. Form; indorsement on summons in matrimonial actions, when served without complaint, 96. § 1776. Verification; answer deny- ing incorporation, 526. § 1780. Attachment; on property of one foreign corporation by an- other, 640. Vacating attachment; jurisdiction of court in prior attachment action, 716. Form; attachment; affidavit in- volving foreign corporation, 663. § 1781. When corporation need not be defendant, 600. § 1782. When corporation need not be defendant, 600. § 1785. Quo warranto, 33. Action to dissolve a corporation, 609. § 1786. Quo warranto, 33. Action to annul charter of cor- poration, 609. Form; petition; request to sue, 37. Form; request to sue, 37. § 1798. Leave to sue, 34. Form; leave to sue; annulling cor- poration, 35. §§ 1798, 1799. Form; leave to sue; order, 36. • § 1803. Publication; judgment an- nulling a corporation, 448. § 1897. Form; reference to statute indorsed on summons, 95. § 1913. Action on judgment, 24, note. Form; leave to sue on judgment, 24, note. Form; leave to sue on judgment, 26. § 1913, subd. 3. Action on judg- ment, 25, note. § 1919. President or treasurer of unincorporated association, named as defendant, 88. Action against president of joint- stock association, 602. § 1938. Verification; action against joint debtors, 527. § 1978. Publication; escheat ac- tion by State, 448. § 1986. Form; leave to sue, 39. § 1991. Attachment a warrant, 635. § 1994. Relator; in State writ, 608. XCVlll BRADBTJEY S LANSING S POEMS AND PKACTICE. Relator in peremptory mandamus, 608. Peremptory mandamus; relator, 609. § 1995. Defendant must sign re- turn to State writ, 456. § 1996. Form; allowance of State writ, 206. § 2005. Board of supervisors a person, 457. Petition for writ of habeas corpus, 434. § 2009. County judge's' power, 341. § 2012. Petition for writ of habeas corpus to testify, 434. § 2014. Verification of return, 456. § 2017. County judge's power, 341. § 2019. Petition for writ of habeas corpus, 434. § 2026. Verification of return, 456. Verification; return to writ of habeas corpus, 527. § 2070. Peremptory mandamus; relator, 609. § 2077. Verification of return, 456. § 2078. Demurrer by relator to return to alternative mandamus, 608. § 2080. Verification of return, 456. §§2085-2099. Enumerated mo- tions, 300. § 2096. Return to alternative writ of prohibition, 459. § 2097. Return to alternative writ of prohibition, 459. § 2098. Verification of return, 456. §2108. Publication; writ for the assessment of damages, 448. § 2112. Publication; writ for as- sessment of damages, 448. § 2131. Stay; in case of certiorari, 467. § 2134. Verification of return, 456. § 2135. Fees for making return, 457. § 2138. Enumerated motions, 300. § 2150. Petition for the discharge of an insolvent debtor from his debts, 434. § 2151. Petition for the discharge of an insolvent debtor from his debts, 434. Verification; petition for discharge of insolvent debtor, 527. § 2165. Publication ; application by an insolvent for his discharge, 448. § 2205. Shortening time for mo- tion, 306. §§ 2235-2244. Verification; in sum- mary proceedings, 527. § 2254. Stay of a warrant to dis- possess in summary proceedings, 477. § 2279. Sheriff filing undertaking, 457. § 2284. Subpoena; penalty for dis- obeying, 503. § 2297. Return of warrant for collection of fine, 460. § 2332. Return of inquisition and cormni^ion, in lunacy proceedings, 459. § 2350. Verification; petition to sell infant's land, 527. § 2351. Form; guardian's bond on application to sell infant's real estate, 227. TABLE OF CODE CITATIONS. XCIX § 2352. Form; guardian's bond on application to sell infant's real estate, 227. § 2388. Publication ; foreclosure by- advertisement, 448. Form; affidavit of publication under foreclosure by advertisement, 454. § 2392. Publication; postponement of sale under foreclosure by adver- tisement, 448. § 2410. Petition to change name, 434. § 2411. Petition to change name, 434. § 2412. Verification; petition to change name, 527. § 2413. Publication; notice of change of name of corporation, 448. § 2414. Publication; order chang- ing the name of a corporation, 449. § 2424. Publication; order to show cause why corporation should not be dissolved, 449. § 2429. Default by receiver in giving notices, etc., 270. § 2434. County judge's power, 341. § 2473. Petition; recital of juris- dictional facts, 436. § 2515. Service of process of sur- rogate's court, 98. Subpoena; in surrogate's court, 500. § 2516. Petition, in surrogate's court, 433. § 2527. Appointment of guardian ad litem in surrogates' courts, 137, note. § 2533. Petition in surrogate's court, 433. Oral petitions, 434. Verification; in surrogate's court, 527. § 2534. Service of citation in sur- rogate's court by publication, 439. § 2566. Subpoena; in surrogate's court, 600. § 2575. Deposit, in place of imder- taking on appeal, 277. § 2577. Security to perfect appeal, in surrogate's court, 476. § 2578. Undertaking on obtaining stay in surrogate's court, 476. § 2581. Filing undertaking on ap- peal from- surrogate's court, 287. § 2595. Deposit of securities be- longing to an estate, 277. § 2648. Petition; revocation of probate of wiU, 433. § 2649. Petition; revocation of probate of will, 433. § 2653. Publication; notice of de- cree of revocation of probate of a will, 449. § 2664. Publication; notice by ad- ministrators to creditors, 449. § 2666. Publication; notice to per- sons claiming a right to administer on an estate, 449. § 2667. Filing an administrator's bond, 287. § 2668. Publication; account of county treasurer when appointed administrator, 449. § 2678. Deposit of money by tem- porary administrator, 277. BEADBUEY'S LANSING'S FOEMS AND PEACTICB. § 2680. Deposit of money by tem- porary administrator, 278. § 2691. Deposit of money by tem- porary administrator, 278. § 2698. Petition; accounting of executor or administrator, 433. Petition; ancillary letters, 433. § 2718. Publication; notice by ex- ecutor to creditors to present claims, 449. §2718A. Petition compelling claimants to present claims, 433. § 2728. Petition; accounting of executor or administrator, 433. § 2886. Party prosecuting in jus- tice's court, 542. § 2890. Attorney, in jiistice's court, 542. § 2894. Arrest; in justice's court, 773. Arrest; exemption; woman, 775. § 2895. Arrest; in justice's court, 773. § 2896. Arrest; undertaking; in justice's court, 863. Undertaking on obtaining order of arrest; in justice's court, 871, notes. Form; imdertaking on obtaining order of arrest; in justice's court, 870. § 2904. Arrest; exemptions, 776. § 2909. Where perishable property is attached; in justice's court, 684. § 2969. Subpoena; in justice's court, 601. § 2970. Subpoena; in justice's court, 501. § 3006. Form; oath of constable who attends jury when they retire, 407. § 3031. Indorsement on execution, 458. §3039. Constable's liability for failing to return execution, 458. § 3050. Undertaking for stay on appeal from execution of municipal court judgment, 477. § 3070. Offer of judgment, after appeal, 413. § 8135. Subpoena; in justice's court, 501. § 3154. Action on judgment, 24, note. § 3164. Deposit by person ar- rested, 277. § 3165. Defendant's time to an- swer in city court action, 90, note. General appearance, 160. Form; shortening time to answer, 91. § 3166. General appearance, 160. § 3168. Notice of exception to sureties, 238, note. Notice of justification of sureties, 239, note. § 3169. Statement of grounds in warrant of attachment, 669. § 3169, subd. 3. Attachment; in- tent to remove, 661. § 3180. Deposit by person ar- rested, 277. § 3181. Deposit by person ar- rested, 277. § 3184. Return of sheriff, after service in certain marine cases, 460. § 3205. Summons of City--Court of TABLE OF CODE CITATIONS. CI Yonkers may be served anywhere in Westchester County, 99. § 3232. Interlocutory costs, 473. § 3245. Notice as affecting costs, 5. § 3247. Action on undertaking; costs, 866. § 3256. Expenses of publication ; how taxed, 452. § 3272. Filing undertaking given as security for costs, 287. § 3273. Form; undertaking on security for costs, 234. § 3274. Notice of exception to sureties, 238, note. Notice of justification of sureties, 239, note. § 3275. Justification of sureties; undertaking on security for costs, 217. § 3280. Making return to State writ, 457. § 3288. Witness's fees; amount of, 505. § 3293. Fees for publishing sum- mons, etc., 452. § 3294. Fees for publishing sum- mons, etc., 452. § 8296. Stipulation fixing referee's fees, 484. § 3301. Form; stipulation of case on appeal, 497. § 3317. Fees for publishing sum- mons, etc., 451. § 3318. Subpoena; in county court, 500. Amount of witness's fees, 505. Witness's traveling expenses, 506. § 3327. Subpoena; in justice's court, 501. § 3340. Publication; conflict be- tween code and other statutes, 447. §3343, subd. 9. "Personal in- jury" defined, 636. Meaning of "personal injury,'' 764 §3343, subds. 9, 10. Attach- ment; action to recover for death of intestate, 636. Attachment; conversion of per- sonal property, 636. §3343, subd. 10. "Injury to property " defined, 636. Meaning of "injury to property," 764. § 3343, subd. 11. " Afiidavit " de- fined, 432. Pleading as an afiidavit, 534. § 3347, subds. 4 and 6. In what courts tender may be made, 428. § 3367. Verification; in condem- nation proceedings, 527. § 3371. Deposit in condemnation proceedings, 278. § 3402. Action to enforce me- chanics' liens; necessary parties de- fendant, 603. Where city was proper defendant, 632. § 3413. Deposit to discharge a mechanic's Hen, 278. § 3422. Return, in proceedings to enforce liens on vessels, 460. cu BRADBURY S LANSING S FORMS AND PRACTICE. TABLE OF CITATIOI^S FROM THE CODE OF PROCEDUEE. § 71. Leave to sue, 24, note. § 179, subd. 3. Order of arrest, in replevin action, 772. §227. Attachment; transfer, 659. fraudulent TABLE OF CITATIONS FROM THE PENAL CODE. § 14Sa. Attorneys not to adver- [ . § 268. Process served on Sunday, tise for divorce cases, 581. 1 106. TABLE OF CITATIONS FROM THE GENERAL RULES OF PRACTICE OF THE SUPREME COURT. 2. Filing papers; in surrogate's court, 289. Filing papers in appellate division, 289. Change of place of trial; filing, 289. Papers must have attorney's name and address, 295. Attorney's name, etc., 297. 3. Filing bond or undertaking, 220. Filing bond or undertaking, 286, note, 287. Filing petition to secure State writ, 287. Filing affidavit on attachment, 287. Filing affidavits used on a motion, 288. Orders granted in one county and entered in another, 289. Recital in order on what motion is made, 331. Entering an order, 334. Filing papers, 335. Undertaking on attachment, 723. Vacating attachment; where pa- pers on which it was granted have not been served, 724. 5. Acknowledgment of undertak- ing, 214. Attorneys as sureties, 216. Making sureties justify, 216, note. Attorney not to be surety, 224. Acknowledging bond, 224, note. 7. "Entering" bond or under- taking, 220. 8. When judgments to be dock- eted, 289. 10. Reference to fix attorney's fees, 576. 11. Stipulations to be in writing, 375, note. Written stipulations, 481. Stipulation; agreement for settle- ment of a controversy, 484. Stipulations to be in writing, 487. 13. Order of arrest to recite grounds, 823. TABLE OF CITATIONS PROM GENERAL RULES OF PRACTICE. ClU 15. Petition for discovery of books or papers, 435. 16. Order for inspection may con- tain stay of proceedings, 466. 17. Petition for subpoena to a witness under a deposition, 435. Time to be given witness whose deposition is sought, 503. 18. Service of State court sum- mons, 103. Proof of service of summons, 124. Affidavit .of service of summons, in action for divorce, etc., 131. Service of summons by person between eighteen and twenty-one, 132, note. Knowledge of deponent that he served defendant, 135, note.- 19. Penalty for failure to folio, 293. Form; notice indorsed on paper returned because not folioed, 294. Title of case, 295. Papers should have title, 301. 21. Non-enumerated motions, 300. Limitations relating to practice motions in first judicial district, 307. Non-enumerated motions, 311, 312. On what papers a motion can be made, 314. 23. Affidavit of merits, in opening default, 269, note. Form; affidavit^ of merits by party, 273, also 273, note. Extension of time, 281. 24. Affidavit of merits, in opening default, 269, note. Form; affidavit of merits by party, 273. Affidavit of merits by party, 274, note. Notice of trial where time has been extended, 284. Form; affidavit to procure exten- sion of time to answer or demur, 285. Further extension of time, 285, note. Form; affidavit in support of motion, 347. 25. Motion; if previous applica- tion has been made, 304. Statement as to previous applica- tion for order to show cause, 309. Making new motion when one has already been made, 314. 27. Orders granted on petitions, 330. Docketing order for payment of money as judgment, 336. Order granted on petition, 435. Docketing judgment or order founded on petition, 436. 36. Preference, if defendant is imprisoned, 825. Arrest; effect of giving bail, 852. 37. Notice of motion; time, 301. When motion is founded on irregu- larity; specify irregularity, 303. Opening default, 304. Order to show cause, 305, 306, also 305, note. Limitations relating to practice motions in first judicial district, 307. Order to show cause in first judi- cial district, 308. Order to show cause, to whom returnable, 311. Defaults, 321. Staying cause after noticed for trial, 332. Form; affidavit in support of motion, 347. Form; affidavit in support of motion, 348. (As am'd 1905.) Form; order to show cause, 360, note. CIV bkadbury's Lansing's forms and practice. Order to show cause, 361, note. (As am'd 1905.) Order to show cause, 362, note. Stay after case has been noticed for trial, 477. Warrant of attachment to recite ground, 668. Copy of attachment warrant must be certified, 679. Attachment; levy; failiire to serve a certified copy; irregularity, 684. Motion to vacate attachment; irregularity, 721. Motion to vacate attachment; where affidavits are defective in matter of substance, 722. Vacating attachment; if affidavit on which granted does not show con- dition of the action, 724. Vacating an attachment; argu- ment in less than five days, 728. 38. Enumerated and non-enumer- ated motions, 299. Non-enumerated motions, 300. Enumerated motions, 300. Contested motions, 306. Motions which are the foundation of special proceedings, 313. > 40. (As am'd in 1899.) Enumer- ated motion at special term, 311, 315. 41. Case on submission of con- troversy, 72. Form; statement on submission of controversy, 76. 48. Changing venue; stay of pro- ceeding, 475. 49. Adverse party cannot nomi- nate guardian ad litem, 49. Form; affidavit as to proposed guardian's responsibility, 52. 51. Security required before guard- ian can collect judgment, 50. 52. Petition; application for ap- pointment of guardian, 434. 55. Petition; proceedings to sell an incompetent's real estate, 435. 59. Petition; proceedings to sell an incompetent's real estate, 435. 69. Payment, to person entitled, of money deposited, 279. 78. Receiver's leave to sue, 27. Form; receiver's leave to sue, 29, 31. TABLE OF CITATIONS FEOM MISCELLANEOUS PKACTICE KULES. Special rules for first judicial de- partment; litigated, and ex parte, motions, 311, 312. Rule 2. Special term rules, first judicial district; practice motions, 307. Order to show cause, 308. Kale 4. Special term rules, first department; enumerated motions, 300. Practice motions, 307. Rule 5. Special term rules, first department; enumerated motions, 300. Practice motions, 307. Ex parte court order, 308. TABLE OF CITATIONS FROM MISCELLANEOUS PRACTICE RULES. CV Rule 8. Special term rules, first district; enumerated motions, 300. Kings County special term rules. Non-enumerated motions, 312. Special rules, Erie County; non- enumerated motions, 312. Rule 12. Equity Rules U. S. Courts. Suit begun by issuance of subpoena, 81. Rule 13. Equity Rules U. S. Courts. Service of subpoena, 115. Rule 15. Equity Rules U. S. Courts. Only a marshal can serve process, 106. Rule 17. Equity Rules U. S. Courts. Defaults, 267. Rule 18. Equity Rules U. S. Courts. Defaults, 267. Rule 19. Equity Rules U. S. Courts. Defaults, 267. Rule 1. Court of Appeals Rules for admission of attorneys. At- torneys to be licensed, 541. Rule 4. Court of Appeals Rules for admission of attorneys. Ad- mission of citizen of another State or country, 547. Preliminary proofs, 543, 545. Rule 5. Court of Appeals Rules for admission of attorneys. Pre- liminary proofs, 544; also, 544, note. Rule 7. Court of Appeals Rules for admission of attorneys. Prelimi- nary proofs, 544, note. Rules of State Board of Law Ex- aminers. Preli min ary proofs, 543. Rule 12. City Court Rules. De- murrers; where heard, 300. Rule 15. City Court Rules. De- murrers; where heard, 300. Rule 5. U. S. Supreme Court Rules. Summons tested in Presi- dent's name, 82. Rule 18. New York Supreme Court Rules. Service of summons by person between eighteen and twenty-one, 130, note. TABLE OF CITATIONS FROM THE STATUTORY CONSTRUCTION LAW. §11. "Folio" defined, 292. §26. Meaning of "month," 447. § 27. Reckoning number of "days," 283. Reckoning "years," 284. Publication; calendar day, 443. Publication; computing time, 444. TABLE OF CITATIONS FROM THE MUNICIPAL COURT ACT. § 9. Summons served anywhere in New York City, 99. § 27. Summons issued by clerk, 81. § 30. Action deemed commenced where summons delivered for serv- ice, 85. Bradbury's Lansing's forms and practice. § 69. Arrest; exemptions, 776. § 196. SubpcEna, 501, § 197. Subpoena, 501. CVl § 56. Arrest; exemption; woman, 775. Vacating arrest order. In munic- ipal court, 831. § 68. Grounds for vacating arrest order, 835. TABLE OF CITATIONS FROM THE NEW YOEK CONSTITUTION. Art. 6, § 11. Impeachment, 556. Art. 6, § 20. Suspension of surro- gate from practice, 556. Art. 13, § 1. Oath, 395. Art. 13, § 1. Form; Constitutional oath of office, 398. Constitution of 1895. Appeal, in arrest cases, 762. TABLE OF CITATIONS FROM THE NEW YORK REVISED STATUTES. Part 1, c. 20, art. 4, §§25, 32. Arrest; action based on lottery, 763. 1 Rev. Stat., c. 22, art. 3, § 14. Arrest; action to recover moneys lost at play, 763. 2 Rev. Stat. 285, § 55. Suitor not to be deprived of the right to serve a summons, 135, note. CITATIONS FROM CUMMING & GILBERT'S GENERAL LAWS. 1 Cum. & Gil. Gen. L. 1107. How action for infant brought; 46. 2 Cum. & Gil. Gen. L. 2479. No- tice; action against mxmicipal corp., 2. 3 Cum. & Gil. Gen. L. 4439. No- tice; action against villages, 3. TABLE OF CITATIONS FROM THE NEW YORK SESSION LAWS. 1854, c. 75, §1. Omitting verifi- cation of pleading, 528. 1870, c. 80, § 257. Arrest; ex- emption; soldiers, 775. 1871, c. 702. Contracts with Sunday paper, 450. 1873, c. 688. (As am'd.) Arrest, in case of insurance agent, 767. TABLE OF CITATIONS FROM NEW YORK SESSION LAWS. CVU 1884, c. 133. Publication, at Al- bany, 443. 1886, c. 572. Notice; action against municipal corp., 1, 2. Form; notice of intent to sue municipal corp., 8. Notice of intent to sue municipal Corp., 8, note. 1889, c. 504. Action by sheriff to set aside fraudulent transfers, 678. 1890, c. 523. (As am'd by L. 1892, c. 418.) Sheriff may retain, for poundage, property levied on, 737. 1890, c. 561. Form; notice; Rochester charter, 9. 1890, c. 661, § 80. Notice; intent to sue municipal corp., 9, note. 1892, c. 418. Sheriff may retain, for poundage, property levied on, 737. 1892, c. 587, § 15. Foreign cor- poration; plaintiff in attachment, 652. 1892, c. 677. Term "acknowledg- ment," 167. 1892, c. 687, § 15. Form; attach- ment; affidavit; foreign corporation, 663. 1892, c. 690, § 238. Attachment; what subject to, 643. 1893, c. 701. Intervention ia action to construe will, 614. 1894, c. 690. Authentication, where affidavit is taken in Germany, 197. 1894, c. 738, subd. 3. Attach- ment; in actions for an injury to property, 635. 1895, c. 178. Justification by surety company, 218. 1895, c. 322. Action to recover a penalty, 594. 1895, c. 578, subd. 3. Attach- ment, when proper, 635. 1895, c. 946. Review by Court of Appeals; attachment, 721. 1896, c. 547, Art. VIII. Acknowl- edgments, 166. 1896, c. 908, § 181. Arrest; pro- ceedings to obtain order; foreign corporation, 781, 784. 1897, c. 378, §1345. City Court summons served personally within city limits only, 98. 1897, c. 414, § 322. Notice; action against villages, 3. Form; notice of intent to sue vil- lage, 10. 1897, c. 415. Notice of action; Labor Law, 4. 1898, c. 165. (As am'd L. 1899, c. 225.) Attorneys to be licensed, 541. Registration of attorney, 546. 1899, c. 225. Attorneys to be licensed, 541. Registration of attorney, 546. Form; oath by person admitted as attorney, 554. 1900, cs. 133, 558. Registration of attorney, 546. 1900, c. 147. Effect of default in action on place of making motion, 310. 1900, c. 259. Summons of City Court of Troy served anywhere in city, 99. CVUl BRADBURY S LANSING S FORMS AND PRACTICE. 1901, c. 466, §261. (N. Y. City Charter.) Notice; action against municipal Corp., 2. Form; notice of intent to sue; mu- nicipal Corp., 8. Notice; intent to sue municipal Corp., 8, note. Form; notice of intent to sue mu- nicipal Corp., 9. 1901, u. 466, § 1345. New York City Court summons served per- sonally within city limits only, 98. 1901, c. 512. Bringing in new parties to a controversy, 587. When court must grant interven- tion; real property actions, 612. 1902, c. 528. Attachment; fraudu- lent transfer, 659. Fraud; disposal of stock of mer- chandise in bulk, 769. 1902, c. 580. Municipal court summons, 97. 1902, c. 580, § 314. Undertaking on appeal from municipal court, 477. 1902, c. 600. Notice; Employers' Liability Act, 1, 4. 1902, c. 600, § 2. Form; notice; Employers' Liability Act, 11. 1903, c. 98. Who may take ac- knowledgments; outside of U. S., 173. Authentication, when affidavit taken in Great Britain, 196, 197. 1903, c. 311. Service of summons against foreign corporation, 111. 1903, c. 322. Where perishable property is attached; in justice's court, 684. 1903, c. 419. Authentication, when affidavit is taken outside of State, 195. Acknowledgment taken without the State, 200. 1904, c. 179. Submission of con- troversy by Attorney General, 73. 1904, c. 293. Procedure on appli- cation for discharge of attachment where third party claims property, 749, 753, note. 1904, c. 384. Jail liberties, 824. 1904, c. 528. Who may take acknowledgments; outside of United States, 172. 1904, c. 541. Attachment; claims by third persons, 748. 1906, c. 135. Indian admitted to bar examination, 545. 1906, c. 177. Actions by Indian tribes, 594. 1906, c. 507. The words, "and before final judgment," dropped from § 687, Code Civ Pro., 736. Addition made to § 688, Code Civ. Pro., as to security, 736. TABLE OF CITATIONS FEOM THE EEAL PEOP- EETY LAW. § 248. Territorial jurisdiction of officer taking acknowledgment, 169. Who may take acknowledgment within State, 172. § 249. Who may take acknowl- edgments; outside of State, 172. Authentication of affidavit, 198 TABLE OF CITATIONS FROM REAL PROPERTY LAW. cix § 249, subd. 1. Authentication of officer taking affidavit, 195. § 249, subd. 2. Authentication when affidavit is taken outside of State, 195. § 249, subd. 3. Authentication, when affidavit is taken outside of State, 195. § 249, subd. 4. Authentication, when affidavit is taken outside of State, 195. § 249, subd. 5. (As am'd by L. 1903, c. 419.) Authentication, when affidavit is taken outside of State, 195. § 249, subd. 5. Acknowledgment taken without the State; foreign notary public, 200. § 249a. Authentication, when affi- davit is taken in United States in- sular possessions, 197. Authentication, when affidavit is taken by officer of United States Army or Navy, 198. § 250. Who may take acknowledg- ments; outside of United States, 173. § 250, subd. 1. Authentication, when affidavit is taken outside of State, 195. § 250, subd. 2. Authentication, when affidavit is taken outside of State, 195, 196. § 250, subd. 3. Authentication, when affidavit is taken outside of State, 196. § 250, subd. 4. Authentication, when affidavit is taken outside of State, 196. § 250, subd. 5. Authentication, when affidavit is taken outside of State, 196. § 250, subd. 6. (As am'd by L. 1903, c. 98.) Authentication, when affidavit is taken in Great Britain, 196. Authentication, where affidavit is taken in Great Britain, 197. § 250, subd. 8. Who may take acknowledgments; in Germany, 173. Authentication, where affidavit is taken in Germany, 197. § 252. Acquaintance with person making acknowledgment, 168. § 253. Form; acknowledgment by a subscribing witness known to the officer, 175. § 254. Acknowledgment by a wit- ness, 171. Form; petition for a subpoena to compel a subscribing witness to prove the execution of a conveyance, 184. Form; subpoena for subscribing witness to appear and testify, 185. Form; warrant to arrest subscrib- ing witness, to compel him to testify, 186. Form; commitment of witness re- fusing to testify, 187. § 257. Authentication, when affi- davit is taken outside of State, 195, 196. Authentication, when affidavit is taken in United States insular pos- sessions, 197. Authentication, when affidavit is taken in Great Britain, 197. § 258. Form; acknowledgment by a corporation, 182. ex beadbury's Lansing's forms and practice. § 260. Authentication, when affi- davit is taken outside of State, 195. Authentication, when affidavit is taken outside of State, 196. Authentication, when affidavit is taken in United States insular pos- sessions, 197. § 260, subd. 1. Authentication, when affidavit is taken outside of State, 195. § 260, subd. 2. Authentication, when affidavit is taken in Canada, 196. § 260, subd. 3. Authentication, when affidavit is taken outside of State, 195. Authentication, when affidavit is taken in Canada, 196. §§ 260, 261. Acknowledgment, in designation by foreign corporation of a person to receive service, 143. § 261. Affidavits taken without the State, 194. § 263. Form; proof of the execu- tion of a deed when the subscribing witnesses are dead, 176. TABLE OF CITATIONS FKOM INDEPENDENT GENEKAL STATUTES. Agricultural Law, § 10. County judge's power, 341. Banking Law. Action to remove a corporation's trustees, 610. Election Law. When poll clerks necessary parties defendant, in action for a recount, 600. Gen. Corp. Law, § 15. Arrest; proceedings to obtain order; foreign corporation, 781. § 27. Proceedings to determine who are the lawful officers of a, cor- poration, 306, note. Highway Law. Oath, 395. Indian Law, §§ 5, 11. Actions by Indian tribes, 594. Insurance Law. Attachment; what subject to, 643. § 38. Arrest in case of agent, 767. New York City Charter, § 1345, L. 1901, c. 466. Tune to answer shortened, 90, note. Personal Property Law, § 7. Creditor's action to set aside assign- ment; publication, 443. Rapid Transit Act. under, 471. Preference Stock Corpoeation Law. Action to enforce personal liability of direc- tors, 591. Action to recover moneys from directors, 600. Action to enforce personal liability of directors, 601. Creditors suing the holders of stock not paid in full, 601. TABLE OF CITATIONS FROM INDEPENDENT STATUTES. Cxi TABLE OF CITATIONS FEOM U. S. CON- STITUTION. Art. 4, § 1. Full credit to be given by each State to the public acts of the others, 254. Art. 4, § 1. Form; exemplified copy of judgment, etc., of another State, 257. TABLE OF CITATIONS FROM U. S. EEVISED STATUTES. §§ 740, 741. Jurisdiction in State containing more than one district, 100. § 787. Service of process by mar- shals, 104. §§ 787, 788. Service of process by marshals, 105. §§ 787, 788, 914. Service of sum- mons in United States Court, 106. § 911. United States Court sum- mons under court seal, 81. Summons in civil actions in United States Circuit Courts attested by clerk, 89. § 914. United States practice like that of State, 104. Service of United States process, 105. Service of United States process in Wisconsin, 106. Service of process on corporation in United States Court, 114. § 1237. Arrest; exemptions; sol- diers, 775. § 1610. Arrest; exemptions; sol- diers, 775. § 4063. Arrest; exemptions, 774. § 5242. Attachment against na- tional bank prohibited, 645. TABLE OF CITATIONS FROM U. S. COMPILED STATUTES. Vol. 1, p. ^08. Jurisdiction; diver- sity of citizenship, 101. Vol. 1, p. 513. Jurisdiction not conferred on Federal Court by lien of attachment, 100. Vol. 1, p. 582. Receivers, leave to sue, 29. Vol. 1, p. 677. Certificate of ex- emplification of foreign judgjnents, 253, note. Vol. 1, p. 677. Authentication of statutes and judicial proceedings, 254. Vol. 1, pp. 677, 678. Records and exemplifications of public docu- ments in the States and Territories, 255. Vol. 1, p. 677. Exemplified copy of judgment, etc., of another State, 257. cxii beadbury's Lansing's fokms and practice. TABLE OF CITATIONS FROM INDEPENDENT ACTS OF CONGRESS. Act of May 26, 1790. Authenti- cation of statutes and judicial pro- ceedings, 254. Act of March 27, 1804. Authenti- cation of statutes and judicial pro- ceedings, 254. BRADBURY'S LANSmG'S EOEMS AND PEAOTIOE. CHAPTER I. PROCEEDINGS BEFORE ACTION. Article I. Notices and demands. II. Assignment of cause op action. III". Leave to sub. IV. Guardian ad litem for plaintiff or defendant. I. NOTICES AND DEMANDS. FORMS. NO. PAGE. 1. Notice of intent to sue municipal corporation for negligence 8. 2. Notice under charter of Rochester 9. 3. Notice to comptroller of New York City on contract claim 9. 4. Notice of proposed action against village 10. 5. Notice of injury under Employers' Liability Act 11. 1. Statutory notice. — In a number of instances, provided by statute, it is a condition precedent to bringing an action that a notice be served on the proposed defendant of the in- tent to sue. These statutes apply to municipal corporations (Z. 1886, G. 572) and to actions under the Employers' Liability Act. (Z. 1902, c. 600). 2. In Cities containing upwards of 50,000 inliabitants before an action is begun to recover for negligence, it is nec- essary to serve on tiie corporation counsel, or other proper law officer, a notice containing a declaration of intent to commence an action and a statement of the time and place at which the injuries were received. L. 1886, c. 572 ; 2 Cum. Vol. I— 1 [1] I BKADBURY S LANSING S FORMS AND PRACTICE. Notices and Demands. <& G. Gen. L., p. 2479. This notice must be served within six months and the action must be begun within one year after the cause of action accrues. Id. This act is constitu- tional, Merz V. City of BrooMyn, 33 St. R. 57T, and applies to all cities having fifty thousand inhabitants or over, Avhether or not they have such a corporate name as " mayor, alderman and commonalty." Curry v. Cil/y of Buffalo, 135 ISr. Y. 366 ; aff'g 57 Hun, 25 ; 10 Supp. 392. Courts may take judicial notice of the population of cities. Merz v. City of BrooTclyn, 33 St. R. 577. Service of notice by mail is insuffi- cient. Burford v. Mayor, etc., 26 App. Div. 225 ; 49 Supp. 969. But where it was served on the comptroller, who forwarded it to the corporation counsel, it was held to be properly served. Missano v. Mayor, etc., 160 N. Y. 123 ; rev'g 17 App. Div. 536 ; 45 Supp. 592, and in effect overruling Bdbcook v. Mayor, etc., 56 Hun, 196 ; 45 Supp. 592. The commencement of an action is not notice. Curry v. City of Buffalo, 135 IST. Y. 366. But service by an administrator six months after his appoint- ment was held sufficient. Barnes v. City of BrooTclyn, 22 App. Div. 520 ; 48 Supp. 36. "Where a city charter requires notice to be served on a different officer from the one spec- ified in L. 1886, c. 572, both statutes must be complied with, unless there is a special provision to the contrary. Curry v. City of Buffalo, 135 N. Y. 366 ; Smith v. City of N. Y., 88 App. Div. 606 ; 85 Supp. 150 ; Krall v. City of N. Y., 44 App. Div. 259 ; 60 Supp. 661 ; but see Lewis v. City of Syra- cuse, 13 App. Div. 587 ; 43 Supp. 455. The notice may be waived by the corporation counsel. Hamilton v. City of Buf- falo, 55 App. Div. 423 ; 66 Supp. 990. But see Kennedy v. Mayor, etc., 34 App. Div. 311 ; 54 Supp. 261. Filing of notice must be pleaded. Smith v. City of N. Y., 88 App. Div. 606 ; 85 Supp. 150. 3. In New York City, it is necessary in actions for negli- gence to serve a notice both on the corporation counsel (Z. 1886, c. 572) and also on the comptroller. L. 1901, c. 466, § 261 ; (charter of the city of N. Y). Smith v. City of N Y., PEOCEEDINGS BEFORE ACTION. Notices and Demands. 88 App. Div. 606 ; 85 Supp. 150 ; Pnlitzer v. City of JSf. T., 48 App. Div. 6 ; 62 Supp. 587 ; reVg 29 Misc. 395 ; 61 Supp. 803. Filing of notice must be pleaded and proved if contro- verted. Krall V. City of N. Y., il App. Div. 259 ; Smith v. City of N. Y., 88 App. Div. 606; 85 Sujap. 150. See also cases cited under last paragraph. In an action against the city of New York to recover for services rendered, the plaintiff proved that after the comple- tion of the services he presented his bills to the official by v?hom he was employed, a deputy commissioner of water sup- ply, gas and electricity ; that the bills were approved by him, vouchers therefor prepared and sent to the commissioner of the department, who also approved and transmitted the bills and vouchers to the comptroller, and that the comptroller ex- amined the bills and refused to pay them, and it was held that this was not a presentation of claim as was required by Section 261 of the city charter ; that the plaintiff should have presented his claim directly to the comptroller in such a man- ner as to apprise him that if he did not act upon the same within thirty days, litigation would follow. Rufreclit v. City ofN. Y, 102 App. Div. 309 ; 92 Supp. 421. 4. Tillages The Village Law (Z. 1897, c. 414, § 322 ; 3 Cum. & Q. Gen. L., p. 4439) requires as a condition precedent to bringing an action against a village for damages for a per- sonal injury or an injury to property, by reason of negligence, that the action shall be begun within one year from the time the cause of action accrued and that " a written verified state- ment of the nature of the claim and the time and place at which such injury is alleged to have been received shall be tiled with the village clerk within six months after the cause of action shall have accrued." It is further provided that the action shall not be begun until thirty days after the filing of the statement. The notice of itself must with reasonable certainty describe the time and place of the accident so the officers can determine these questions without the aid of other evidence. Hauler v. Village of Welhville, 83 App. Div. 581 ; 82 Supp. 9. Thus where the notice stated that the person fell 4 BEADBURY S LANSING S FORMS AND PRACTICE. Notices and Demands. into a hole in a sidewalk in a certain street, without further identifying the place, and the street was about one fourth of a mile long, the notice was held to be insufficient. Id. The presentation of such a notice is a condition precedent to bringing an action. Reining v. City of Buffalo, 102 N. Y. 308 ; Freligh v. Village of Satigerties, YO Hun, 689 ; 24 Supp. 182; Curry v. City of Buffalo, 135 N. Y. 366. The act applies to the villages chartered under special acts unless there is some provision of their charters inconsistent therewith. Freligh v. Village of Saiogerties, TO Hun, 589 ; 24 Snpp. 182. 5. Employers' Liability Act. — Under L. 1902, c. 600, known as the "Employers' Liabilitj^ Act," it is a condition precedent to the bringing of an action under said act that the notice therein required shall be served. Grasso v. Holbrooke, etc, Co. (March, 1905), — App. Div. — ; — Supp. — ; Gmaehle V. Rosenberg, 80 App. Div. 541 ; 80 Supp, Y05 ; s. c. 83. App. Div. 339 ; 82 Supp. 366 ; Johnson v. Roach, S3 App. Div. 351 ; 82 Supp. 203 ; Veginan v. Horse, 160 Mass. 143. But where an action is brought by an employee against an employer based on the common-law rule of liability for dam- ages for negligence, it is not necessary to serve the statutory notice. Omaehlev. Rosenberg, I'JS, W. Y. 147; rev'g 87 App. Div. 631; 84 Supp. 1127; rev'g 40 Misc. 267; 81 Supp. 930; Schermerhorn a^ Glens Falls Cement Co., 94 App. Div. 600 ; 88 Supp. 407. Nor is it necessary to serve such notice if the action is based on the Labor Law (Z. 1897, c. 415). Williains v. Roblin, 94 App. Div. 177; 87 Supp. 1006. 6. Notice by executor, etc. — "Where the notice is given by an executor or administrator, upon the death of the person injured, the statute must be followed strictly as to time, and the notice served within sixty days after his appointment. If this is not done, even though the 120 days, specified in the act, within which the notice must be served, have not expired since PROCEEDINGS BEFORE ACTION. Notices and Demands. the injury, the notice will be too late if more than sixty days have expired since the appointment of the executor. Randall V. Holbrooh Contracting Co., 95 App. Div. 336 ; 88 Supp. 681. 7. Notice as affecting costs. — Under Code Civ. Pro., § 3245, " costs cannot be awarded to the plaintiff, in an action against a municipal corporation, in which the complaint de- mands a judgment for a sum of money only, unless the claim, on which the action is founded, was, before the commencement of the action, presented to the board of such corporation hav- ing the power to audit the same, or to its chief fiscal officer, at least ten days before the commencement of the action." In a case arising under § 3245 the defendant is not entitled to costs under § 3229. Baine v. City of Soehester, 85 IST. Y. 523. This section does not apply to actions ex delicto. Hunt V. City of Oswego, 107 N. Y. 629 ; following G-age v. Village of HornelUville, 106 IST. Y. 667. The claim must be made by one who represents the claim- ant, and the claim must be presented in such a manner that the officer to whom it is presented can act intelligently thereon. Spaulding v. Village of Wavedy, 12 App. Div. 594; 44 Supp. 112. Where the suit is on a contract made with water commis- sioners of a village, the municipality is the real defendant and notice under § 3245 is necessary to carry costs. Jling v. Vil- lage of RandolpTi, 28 App. Div. 25 ; 50 Supp. 902. See also Brewster w.Gity of Hornellsville, 35 App. Div. 626 ; 54 Supp. 915. 8. If a demand would have been unavailing it is not nec- essary to show that one was made. Reading v. LampMer, 9 Supp. 596 ; Sehroeder v. Hudson R. R. Co., 12 Super. Ct. 55 ; Doners. Williams, 20 W. Dig. 456. But a demand is not ex- cused by showing an improbability of its being complied with. Southwick V. First Nat. Bh. of Memphis, 84 N. Y. 420 ; rev'g 20 Hun, 349. 6 BRADBURY'S LANSING'S FORMS AND PRACTICE. Notices and Demands. 9. Demand ; joint defendant. — A demand upon one of two or more who are jointly liable or who are under a joint obligation to perform some act is usually sufficient as a de- mand upon all. Ball v. Larkin, 3 E. D. Smith 555 ; Bloody. Goodrich, 9 Wend. 68 ; Baird v. Walker, 13 Barb. 29S ; Jes- sop V. Miller, 2 Abb. Ct. App. Dec. 449 ; 1 Keyes, 321 ; Scholey V. IlaUey, Y2 JST. Y. 578. 10. Conversion. — It has become a well-settled principle that if the defendant came lawfully into possession of the prop- erty a demand before suit is necessary. Cohnfield v. Walsh, 2 App. Div. 190 ; 37 Supp. 833 ; Hovey v. Bromley, 85 Hun, 540 ; 33 Supp. 400 ; Delahunty v. Hake, 20 App. Div. 430 ; 46 Supp. 929 ; Gillet v. Roberts, 57 N. Y. 28 ; Goodwin v. Werthei- mer, 99 IST. Y. 149 ; Miller v. Ilannan, 29 App. Div. 178 ; 51 Supp. 816; Williamson v. Seeley, 22 App. Div. 389; 48 Supp. 196. But if the original possession is acquired wrongfully, demand is not necessary. Heald v. MaoGowan, 5 Supp. 450 ; a£f'd 117 ISr. Y. 643; Rodney Hunt Maeh. Co. v. Stewart, 57 Hun, 545 ; 11 Supp. 448 ; Keefer v. Greene, 62 Hun, 618 ; 16 Supp. 498 ; Smith \. Smalley, 19 App. Div. 519; 46 Supp. 277; Bucking- ham V. Vincent, 23 App. Div. 238; 48 Supp. 747. 11. In replevin, the same rules apply as in conversion. Hall V. Bassler, 96 App. Div. 96 ; 88 Supp. 1039. 12. On a certificate of deposit, demand is necessary before action. Young v. American Bank, 44 Misc. 308 ; 89 Supp. 915. 13. Contracts. — If the defendant is under obligation to pay a particular sum at a specific time and place, and in actions on contract generally where some amount is due, the bringing of the action is a sufficient demand. But if the obligation of the defendant is to deliver property under a contract, a demand is necessary before the action is commenced. Marks v. Englund, PROCEEDINGS BEFORE ACTION. Notices and Demands. 37 App. Div. 539 ; 56 Supp. 2Y8 ; EoUnson v. Frank, 107 IST. Y. 655; Robertson v. Sully, 2 App. Div. 152; 37 Supp. 935; Brooklyn Oil Refinery v. Brown, 61 N. Y. 643 ; Boutwell v. O'Keefe, 32 Barb. 434 ; Smith v. Tiffany, 36 Barb. 23 ; Rutty V. Consolidated Fruit Jar Co., 52 Hun, 492 ; 6 Supp. 23 ; Bv,nn V. ZeW, 65 Hun, 43 ; 19 Supp. 728 ; Weller v. Tuthill, m N. Y. 347 ; rev'g 4 Hun, 811 ; Lawson v. Hogan, 93 N. Y. 39 ; Myers V. DeMier, 52 N. Y. 647. 14. Alimony. — A specific demand must be made upon a husband for the amount of alimony due before an attachment will issue against his person for refusal or failure to pay. De- lanoy v. Delanoy, 19 App. Div. 295 ; 46 Supp. 106 ; Ooldie v. Ooldie, 77 App. Div. 12 ; 79 Supp. 268 ; Flor v. Flor, 73 App. Div. 262 ; 76 Supp. 813. 15. Contempt. — In all cases where a party is required to do some act by an order or decree, demand must be shown to have been made to him, to support contempt proceedings be- cause of his failure or refusal to obey such order or decree. People ex rel. Lawyers' Surety Co. v. Anthony, 7 App. Div. 132 ; 40 Supp. 279 ; aff'd 151 JST. Y. 620 ; Matter of Ocker- shausen, 59 Hun, 200 ; 13 Supp. 396 ; Delanoy v. Delanoy, 19 App. Div. 295 ; 46 Supp. 106 ; RycTcman v. Rychman, 32 Hun, 193; Oray v. Cool, 24 How. Pr. 432; JfoComS v. Weaver, 11 Hun, 271 ; Fromme v. Jarecky, 19 Misc. 483 ; 43 Supp. 1081 ; Whitman v. Rains, 51 Hun, 640 ; 4 Supp. 48 ; aff'd 119 N. Y. 689. 16.. Undertaking on arrest. — After an order of arrest has been vacated suit may be brought by the one arrested without making a demand on the sureties in the undertaking given on procuring the order of arrest. Krause v. Rutherford, 37 Misc. 382 ; 75 Supp. 773 ; aff'd 81 App. Div. 341 ; 81 Supp. 465 ; aff'd 178 N. Y. 584. 8 BRADBURY S LANSING S FORMS AND PRACTICE. Notices and Demands. Form No. 1. Notice of Intent to Sue Municipal Corporation for Negligence. (L. 1886, c. 572 ; also N. Y. City Charter, § 261.) In the matter of the Claim of" A. S. against the Mayor, Aldermen and Commonalty of the City of New York. Gentlemen : — Please take notice, that A. S. claims and demands from the Mayor, Aldermen and Commonalty of the City of New York five thousand dollars damages for personal injuries sustained by her by falling upon the sidewalk on the west side of Wash- ington Avenue, in the City of J^Tew York, between lY4th and 175th streets, on the 22d day of September, 1894-, there being at the time a deep hole or depression in the sidewalk at that point and the street gaslight not being lit [and notice is here- by given to you of the intent of said A. S. to commence an action against said city on a claim for damages for said in- jury] .1 Dated, New York, ■ , 19—. Eespectf uUy yours, A. S., CLAIMANT. ■ Attorneys for A.'S. Street, New York City. To A. P. F., comptroller, and W. H. C. counsel to the cor- poration. ' The above form, without the words in brackets, was sustained in Sheehy V. City of N. Y., 160 N. Y. 139; rev'g 29 App. Div. 263; 51 Supp. 519. The chief point argued in the case was the question of the sufficiency of the notice because of the failure to state that an action would be begun. With the addition of the words in brackets there can therefore be no doubt about the sufficiency of the notice. It should be observed that in New York City the Charter (i. 1901, c. 466, § 261), requires notice to be served on the comptroller before an action or special proceeding "for any cause whatever" is begun. This is in addition to the notice required by L. 1886, c. 572. When the above notice was served the official name of the city was as above specified. At the present time it is the City of New York only. PROCEEDINGS BEFORE ACTION. Notices and Demands. Form IVo. 2. Notice under Charter of Rochester. (L. 1890, c. 661.) The City of Eochester, JST. Y. to Frank Saumby, Dr. To damages for injuries sustained by said Frank Saumby on the 5th day of August, 1890, owing to the negligence of said city in leaving unprotected a sewer opening on the east side of Chatham street, near the southern corner of Holland street, into Which opening said Frank Saumby fell, $1,000.' Form ISTo. 3. Notice to Comptroller of New York City on Contract Claim. (New York City Charter, § 261.)^ To , Comptroller of the City of New York : Please Take JSTotice, that A. B. (or the undersigned) has a claim against the City of New York for the sum of ($ ) dollars, which claim arose out of the following facts (/le/'e give a particular statement of the facts constitxiting the claim) and that an action will be began thereon against said City to recover such sum. Dated, New York, the day of , 190 . A. B. ' The above form was held sufficient in Saumby v. City of Rochester, 72 Hun, 489; Supp. under sec. 80 of the Charter of the city of Rochester, as amended by L. 1890, c. 561. ^ This section reads as follows: "§ 261. No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against The City of New York, unless it shall appear by and as an allegation in the com- plaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special pro- ceeding is founded were presented to the comptroller of said city for ad- justment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. If the plaintiff recovers judgment in his action or special proceeding he shall recover full taxable costs without regard to the amount of the judgment." 10 Bradbury's Lansing's forms and practice. Notices and Demands. Form No. 4. Notice of Proposed Action Against Village. (L. 1897, c. 414, sec. 322.)i To the Yillage Clerk of the ViUage of : Please Take Notice that A. B. (or the undersigned) has a claim against the village of for damages for per- sonal injuries arising upon the following facts ijiere state fully the time, place and extent of the injury and the cause thereof) and that an action will be begun against said village to re- cover said sum. Dated, the day of , 190 . A. B. State of New York, ) County of j ^' ' A. B., being duly sworn, deposes and says, that he is the claimant mentioned in and who executed the foregoing notice of claim ; that the statements of fact therein contained are true to his own knowledge. A. B. Sworn to before me this day of , 190 . * " § 322. Actions against the village. No action shall be main- tained against the village for damages for a personal injury or an injury to property alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employ^ thereof, unless the same shall be commenced within one year after the cause of action therefor shall have accrued nor unless a written verified statement of the nature of the claim and of the time and place at which such injury is alleged to have been re- ceived shall have been filed with the village clerk within six months after the cause of action shall have accrued. An action on such a claim shall not be commenced until the expiration of thirty days after it is presented." Village Law, § 322. PROCEEDINGS BEFORE ACTION. 11 Notices and Demands. Form ISTo. 5. Notice of Injury Under Employers' Liability Act. (L. 1902, c. 600, § 2.) To {Name of Employer^ Please take notice, that A. B. on the day of , 190 , at {stating accurately the place of injury^) was injured in the following manner {state as fully as possible the cause and the extent of the injury), (and that such injury resulted in the death of said A. B. on the day of , 190 )} Dated, the day of , 190 . Yours, etc., A. B. [or C. D., executor, etc.] ' "Notice. § 2. No action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days and the action is commenced within one year after the occur- rence of the accident causing the injury or death. The notice required by this section shall be in writing and signed by the person injured or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person injured to give notice within the time provided in said sec- tion, he may give the same within ten days after such incapacity is re- moved. In ease of his death without having given such notice, his executor or administrator may give such notice within sixty days after his appoint- ment, but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no in- tention to mislead and that the party entitled to notice was not in fact misled thereby. The notice required by this section shall be served on the employer or if there is more than one employer, upon one of such em- ployers, and may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may be served by post by letter addressed to the person on whom it is to be served, at his last known place of residence or place of business and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post. When the employer is a corporation, notice shall be served by de- livering the same or by sending it by post addressed to the office or princi- pal place of business of such corporation." L. 1902, c. 600, § 2. 12 Bradbury's Lansing's forms and practice. Assignment of Cause of Action. II. ASSIGNMENT OF CAUSE OF ACTION.' FORMS. NO. PAGE. 6. Assignment — general form 13. 7. Assignment of account 14. 8. Assignment of chattel mortgage 14. 9. Assignment of lease 16. 10. Assignment of mortgage — New York and Kings County 17. 11. Assignment of mortgage outside of New York and Kings County 18. 12. Assignment of mortgage — corporation form 19. 13. Assignment of patent 21. 14. Assignment of patent before letters granted 22. Requisites. — To constitute a valid assignment there must be a perfected transaction between the parties intended to in- vest in the assignee a complete present right in the thing as- signed. Donovan v . MiddlebrooTc, 95 App. Div. 365 ; 88 Supp. 607. A valid assignment must be proved which is sufficient to bar a recovery by the assignor. Oreef v. Lemson, 84 Supp. 298 (App. Term). It may be made by parol so long as it is properly proved at the trial, and is such an interest as may be transferred in that manner under the Statute of Frauds. Thurler v. Chambers, 66 N. Y. 42 ; modifying 4 Hun, 721 ; Risley v. Phenix BanTcof N. Y., 83 IST. Y. 318; Greene v. BepuUic Fire Ins. Co., 84 ISr. Y. 572 ; Clegg v. N. Y. Newspaper Union, 72 Hun, 395 ; 25 Supp. 565; Murray v. BulVs Head Bank, 3 Daly, 364; Kessell v. Alhetis, 56 Barb. 362 ; Rupp v. Blanchard, 34 Barb. 627. If an assignment is valid on its face, and is such as will bar the assignor from recovery on the claim, the debtor cannot in- quire into the consideration for the assignment. Costello v. HerUt, 18 Misc. 176 ; 41 Supp. 574 ; aff'g 16 Misc. 687 ; 38 Snpp, 1123 ; Livingston v. Spero, 18 Misc. 243 ; 41 Supp. 606 ; Allen v. Brown, 51 Barb. 86 ; aff 'd 44 N. Y. 228. ' The question as to what may be assigned is one of substantive law and could not be discussed properly in a work on practice. PROCEEDINGS BEFORE ACTION. 13 Assignment of Cause of Action. Form No. 6. Assignment— General Form. Know all Men hy these Presents, That I, A. B., of the city of ISTew York for value received, have sold and by these presents do grant, assign and convey unto C. D., of the same place {deserve article or property sold) to have and to hold the same unto the said 0. D., his executors, ad- ministrators and assigns, forever, to and for the use of said C. D., hereby constituting and appointing said C. D. my true and lawful attorney irrevocable in my name, place, and stead for the purpose aforesaid, to ask, demand, sue for, attach, levy, recover and receive all such sum and sums of money which now are, or may hereafter become due, owing and payable for or on account of all or any of the accounts, dues, debts and demands above assigned, giving and granting unto the said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary, as fully to all intents and purposes as I might or could do, if personally present, with full power of substitution and revocation hereby ratifying and confirming all that the said attorney or his substitute shall lawfully do, or cause to be done, by virtue hereof. In witness whereof, I have hereunto set my hand and seal the day of in the year one thousand nine hundred and . Sealed and delivered in the presence of A. B. State of ss * County of On this day of in the year of our Lord one thousand nine hundred and before me the under- signed personally came and appeared, A. B., to me personally known, and known to me to be the individual de- scribed in, and who executed the within assignment, who ac- knowledged to me that he executed the same. F. G., Notary Public. {Or other officer empowered to take acknowledgments.) 14 Bradbury's Lansing's forms and practice. Assignment of Cause of Action. Form IVo. 7. Assignment of Account. Knoio all Men hy these Presents, That I, A. B., of the City of ]ye\v York, in consideration of dollars, lawful money of the United States, to me paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have sold, assigned, transferred and set over, and by these presents do sell, assign, transfer and set over unto C. D., of the same place, his executors, administra- tors and assigns, to his own proper use and benefit, any and all sums of money now due or to grow due upon the annexed account (or specified in the books upon which this assign- ment is indorsed). And I do hereby give the said C. D., his executors, admin- istrators and assigns, the full power and authority for his or their own use and benefit, but at his or their own cost, to ask, demand, collect, receive, compound, and give acquittance for the same or any part thereof, and in my name or otherwise to prosecute and withdraw any suits or proceedings at law or in equity therefor. In witness whereof, 1 have hereunto set my hand and seal, this day of , 19—. In presence of A. B. {Acknowledgment as in last form.) Form IVo. 8. Assignment of Chattel Mortgage. Know all Men hy these Presents, That I, A. B., of the city and county of New York, party of the first part, in consider- ation of the sum of dollars, lawful money of the United States, to me in hand paid by C. D., of the same place, party of the second part, at or before, the ensealing-'and and delivery of these presents, the receipt whereof is hereby PROCEEDINGS BEFORE ACTION. 15 Assignment of Cause of Action. acknowledged, have granted, bargained, sold, assigned, trans- ferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said party of the second part, a certain Chattel Mortgage, bearing date the day of in the year one thousand nine hun- dred and made by E. F. to secure the sum of — dollars, and a copy of which said mortgage was duly filed in the office of {state where filed and the date of filing) and the money due and to grow due thereon with the interest. To have and to hold the same unto the said party of the second part, his executors, administrators and assigns forever, subject only to the proviso in the said Chattel Mortgage men- tioned. And I do hereby make, constitute and appoint the said party of the second part my true and lawful attorney, irrev- ocable in my name or otherwise, but at his proper costs and charges, to have, use and take all lawful ways and means for the recovery of the said money and interest ; and in case of payment to discharge the same as fully as I might or could do if these presents were not made. In witness whereof, I have hereunto set my hand and seal the day of in the year one thousand nine hundred and . Sealed and delivered in the presence of A. B. State of f County of T On the day of in the year one thousand nine hundred and before me personally came A. B. to me known, and known to me to be the individual described in, and who executed the foregoing instrument, and he there- upon duly acknowledged to me that he executed the same. E. F. Notary Public. 16 Bradbury's Lansing's forms and practice. Assignment of Cause of Action. Form !No. 9. Assignment of Lease. Know all Men hy these Presents, That I, A. B., of the city of New York for and in consideration of the sum of dollars, lawful money of the United States, to me duly paid by C. D., of the same place have sold, and by these jjresents do grant, convey, assign, transfer and set over unto the said C. J)., a certain Indenture of Lease bearing date the day of in the year one thousand nine hundred and made by E. F. as landlord leasing the premises at Xo. street in the city of New York to said C. D. as tenant for the term of years beginning , 19 — , and ending , 19 — ; and which lease was recorded on the day of , 19 — , in the office of the register {or clerk) of the county of in liber of at page , {^/recorded un- der block number system add necessary particulars as to section andbloch mirnber). Together with all and singular the prem- ises therein mentioned and described and the buildings thereon, with the appurtenances. To have and to hold the same unto the said C. D., his liens and assigns, from the day of , 19 — , for and during all the rest, residue and remainder yet to come of and in the term of years mentioned in the said Indenture of Lease subject to {state in- cumbrances if any) the rents, covenants, conditions and provi- sions therein also mentioned. And I do hereby covenant, grant, promise and agree to and with the said C. D., that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments and incumbrances whatsoever, except {if any ex- ceptions state them). In witness whereof, I have hereunto set my hand and seal this day of in the year one thousand nine hundred and . Sealed and delivered in the presence of A. B. PBOCEEDINGS BEFORE ACTION. 17 Assignment of Cause of Action. State of / Coui>rTT OF f ■■ On this day of in the year of our Lord one thousand nine hundred and before me the under- signed personally came and appeared A. B. to me known, and known to me to be the individual described in and who executed the foregoing instrument, and acknowledged to me that he executed the same. Form INTo. 10. Assignment of Mortgage, New York City and £ings County. Know all Men hy these Presents, That A. B., of the City and County of New York, party of the first part, in considera- tion of the sum of dollars, lawful money of the United States, to me in hand paid by 0. D., of the same place, party of the second part, at or before the ensealing and de- livery of these presents, the receipt whereof is hereby ac- knowledged, have granted, bargained, sold, assigned, trans- ferred and set over and by these presents do grant, bargain, sell, assign, transfer and set over unto the said party of the second part, a certain Indenture of Mortgage, bearing date the day of in the year one thousand nine hundred and , made by E. F. to secure to the party of the first part {or to G. H.) the payment of the sum of ■ dollars on the day of , 19 — , with interest as therein provided and duly recorded ia the office of the Kegister {or clerk) of the County of on the daj of , 19 — , in Block Series (Mortgages) section liber page and indexed under Block Number on the Land Map of the City of New York {or, County of Kings). Together with the bond or obKgation therein de- scribed and the money due and to grow due thereon, with the interest, to have and to hold the same unto the said party of the second part, his executors, administrators and Vol. 1—2 18 Bradbury's Lansing's forms and practice. Assignment of Cause of Action. assigns forever, subject only to the proviso in the said In- denture of Mortgage mentioned ; and I do hereby make, constitute and appoint the said party of the second part my true and lawful attorney, irrevocable, in my name or other- wise, but at his proper cost and charges, to have, use and take all lawful ways and means for the recovery of the said money and interest ; and in case of payment, to discharge the same as fully as I might or could do if these presents were not made. In witness whereof, I have hereunto set my hand and seal the day of in the year one thousand nine hundred and . Sealed and delivered in the presence of A. B. {Add Achnowledgment.) Form No. 11. Assignment of Mortgage Outside of New York and Kings County. Know all Men ly these Presents, That I, A. B., of the of , party of the first part, in consideration of the sum of dollars, lawful money of the United States, to me in hand paid by C. D., of the same place, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said party of the second part, a certain Indenture of Mortgage, bearing date the day of in the year one thousand nine hundred and , made by E. F. {describe mortgage) and duly recorded in the office of the Eegister {or Clerk) of the County of on the day of , 19—, in liber of Mortgages, at page , together with . the bond or obligation therein described and the money due and to grow due thereon, with the interest, to have and to PROCEEDINGS BEFORE ACTION. 19 Assignment of Cause of Action. hold the same unto the said party of the second part, his ex- ecutors, administrators and assigns forever, subject only to the proviso in the said Indenture of Mortgage mentioned ; and I do hereby make, constitute and appoint the said party of the second part my true and lawful attorney, irrevocable in my name or otherwise, but at his proper cost and charges, to have, use and take all lawful ways and means for the recovery of the said money and interest ; and in case of payment, to discharge the same as fully as I might or could do if these presents were not made. In witness whereof, I have hereunto set my hand and seal the day of in the year one thousand nine hundred and . Sealed and delivered in the presence of A. B. {Add Achnowledgment.) Form No. 13. Assignment of Mortgage— Corporation. Know all Men hy these Presents, That the company, a corporation organized under the laws of the State of , party of the first part, in consideration of the sum of dol- lars, lawful money of the United States, to it in hand paid by the Company, a corporation organized under the laws of the State of , party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer and set over unto the said party of the second part, a certain Indenture of Mortgage, bearing date the day of , in the year one thousand nine hundred and , made by (^describe mortgage) and duly recorded in the office of the Eegister {or Clerk) of the County of on the day of , 19 — , in 20 beadbury's Lansing's forms and practice. Assignment of Cause of Action. liber of Mortgages, at page {give section and hlock numbc'7-s iflcmdlies in jplace where Mock system is usedy, together with the bond or obligation therein described, and the money due and to grow due thereon, with the interest, to have and to hold the same unto the said party of the second part, its successors and assigns forever, subject only to the proviso in the said Indenture of Mortgage mentioned : And it does hereby make, constitute and appoint the said party of the second part its true and lawful attorney, irrevocable in the name of the said party of the first part or otherwise, but at the proper costs and charges, to have, use and take all lawful ways and means for the recovery of the said money and in- terest ; and in case of payment, to discharge the same as fully as the said party of the first part might or could do if these presents were not made. In witness whereof, the said corporation, party of the first part, hath caused its corporate seal to be aifixed to these pres- ents, and the same to be subscribed by its president and at- tested by its secretary the day of in the year one thousand nine hundred and . (Corporate seal) The Company. By , President. Attest Secretary. State of New Yoek County of • \ On this day of one thousand nine hun- dred and , before me personally appeared A. B., to me known, who, being by me duly sworn, did depose and say that he resided in ; that he is the President of the {name of Corporation), the corporation described in and which executed the above instrument ; that he knew the seal of said corporation ; that the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the Board PROCEEDINGS BEFORE ACTION. 21 Assignment of Cause of Action. of Directors of said corporation and that he signed his name thereto by like order. CD. ISTotary Public, County. Form IVo. 13. Assignment of Patent. Whereas, A. B., of the city of New Tork did obtain Letters Patent of the United States of America, for certain improve- ments in which Letters Patent bear date the ■ day of one thousand nine hundred and and numbered . And whereas, C. D. of is desirous of acquiring an interest therein. Now this indenture witnesseth, that for and in consideration of the sum of Dollars, to me, the said A. P., in hand paid, the receipt of which is hereby acknowledged, I have assigned, sold and set over, and do hereby assign, sell and set over unto the said 0. D., his executors, administrators and as- signs all the right, title and interest which I have in the said invention, as secured to me by said Letters Patent, and all re- newals or reissues thereof, if any. The same to be held and enjoyed by the said C. D. for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said Let- ters Patent are granted, as fully and entirely as the same would have been held and enjoyed by rae, if this assignment and sale had not been made. In testimony whereof, I hereunto set my hand and affix my seal this day of one thousand nine hundred and . Sealed and delivered in presence of A. B. {Add acknoioledgment.) 22 Bradbury's Lansing's forms and practice. Assignment of Cause of Action. Form No. 14. Assignment of Patent before Letters are Granted. Whereas, A. B., of has made a useful invention of a for which on , 19 — he made {(ir, is about to make) an application for Letters Patent of the United States, and which application has the serial num- ber in the United States Patent office. And "Whereas, C. D. of , is desirous of acquiring an interest therein, and in the Letters Patent which may be granted therefor. Now this Indenture Witnesseth, That for and in consider- ation of the sum of dollars, lawful money of the United States, to A. B. by C. D. in hand paid, the receipt of which is hereby acknowledged, I have assigned, sold and set over, and do hereby assign, sell and set over unto the said C. D. all the right, title and interest "which I have in the said invention, and in any Letters Patent of the United States which may be granted therefor, for, within and throughout the following described territory {describe it). The same to be held and enjoyed by the said C. D. for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said Let- ters Patent are granted, as fully and entirely as the same would have been held and enjoyed by me, if this assignment and sale had not been made. And I hereby request the Honorable Commissioner of Pat- ents to issue the Letters Patent in accordance with this instru- ment. In testimony whereof, I hereunto set my hand and affix my seal this day of nineteen hundred and Sealed and delivered in presence of A. B. {Add acknowledgment^ PEOCEEDINGS BEFORE ACTION. 23 Leave to Sue. III. LEAVE TO SUE.* (a.) ON JUDGMENTS. (b.) ACTIONS BY AND AGAINST RECEIVERS. (c.) ACTIONS IN NATURE OP QUO WARRANTO. (d.) AS POOR PERSON. (e.) ON BONDS. FORMS. NO. PAGE. 15. Affidavit for leave to sue upon a judgment 24. 16. Notice of motion for leave to sue upon a judgment 25. 17. Order granting leave to sue upon a judgment 26. 18. Petition of receiver for leave to sue 29. 19. Order giving receiver leave to sue 31. 20. Petition for leave to sue receiver 31. 21. Order granting leave to sue receiver 32. 22. Petition by Attorney General for leave to bring an action to vacate and annul the charter of a corporation 35. 23. Order granting leave to the Attorney General to sue 36. 24. Request to Attorney General to sue 37. 25. Petition by creditor or stockholder for permission to sue upon refusal of Attorney General to bring action 37. 26. Order granting leave to creditor or stockholder to sue 39. 27. Petition for leave to prosecute as poor person 40. 28. Certificate of counselor at law annexed to above petition 41. 29. Order granting leave to prosecute action as a poor person 41. 30. Order annulling leave to prosecute or defend as a poor person .... 42. 31. Petition for leave to defend action as a poor person 42. 32. Order granting leave to defend action as a poor person 43. 33. Application for leave to sue on bond executed to the people or a public officer, by party interested 44. 34. Order granting leave to sue on bond, etc 44. ' For leave to sue in aid of attachment, see "Attachment.'' For leave to bring an action in name of infant in partition, see "Partition." For leave to sue for deficiency in foreclosure, see that title. For leave to sue on executor's or administrator's bond, see "Surrogates' Courts." 24 BEADBURY S LANSING 8 FORMS AND PRACTICE. Leave to Sue. {a.) ON JUDGMENTS. Form No. 15. Affidavit to Apply for Leave to Sue upon a Judgment.' (Code Civ. Pro. § 1913.) [Title.] County of , ss.: A. B., of , being duly sworn, says that on the day of , 19 — , a judgment was rendered in the Supreme Court of the State of New York {or name other court) for the sum of dollars and cents damages, and dollars and cents costs, in favor of this deponent and against said C. D., the judg- ment roll whereupon was filed in the oflBce of the Clerk of said Court in the County of on the day of , 19 — , and said judgment was then and there docketed [and a transcript whereof was filed and said judgment duly ' There seems to have been some doubt under the old Code (§ 71) whether or not the failure to procure an order granting leave to sue was a jurisdic- tional defect which could be cured by an order nunc pro tunc. Church v. Van Buren, 55 How. Pr. 489; Parish v. Austin, 25 Hun, 430; McKernan V. Robinson, 84 N. Y. 105. But the rule now seems to be that failure to secure leave before bringing the action is a jurisdictional defect, which cannot be cured by an order nunc pro tunc. Cook v. Thurston, 18 Misc. 506; 42 Supp. 1084, and cases cited. Subdivision 1 to section 1913, Code Civ. Pro., allowing an action to be begun on a judgment ten years old, without application to the court, was added to meet the situation caused by the decision in Importers' & Traders' Bk. V. Quackenbush, 143 N. Y. 567. A justice's judgment, a transcript of which is filed in the county clerk's office, does not become a judgment "rendered" in a court of record within the meaning of Code Civ. Pro., § 1913. Dieflenbach v. Roch, 112 N. Y. 621; Harris v. Clark, 65 Hun, 361; 20 Supp. 232. So leave is not necessary be- fore bringing an action on a justice's judgment. Harris v. Clark, 65 Hun, 361; 20 Supp. 232. The statute was designed to prevent a multiplicity of suits and the accumulation of costs and the same result is secured as to justice's judgments by Code Civ. Pro. § 3154, providing that costs shall not. be allowed in an action on a justice's judgment, if brought within five years of the rendition thereof. Id. PROCEEDINGS BEFORE ACTION. 25 Leave to Sue. docketed in the clerk's office, on the - — day of , 19—]. That said judgment was rendered upon filing the report of E. F., duly appointed in said action as referee, to hear and determine the same [or upon filing the decision of Hon. A. O., a justice {or judge) of said court ; or upon the verdict of a jury rendered in said action ; or upon the default of the said defendant to appear {or ans^ver) therein, upon personal service of the summons in said action upon him; {or state other authority for entry of judgment, so as to shoio that the case is not excepted iy subdivision £ of sectio7i 1913), and is wholly unpaid [or, is unpaid to the amount of dollars], with interest, etc. That at or after the time of the rendition of said judg- ment, the said defendant was the owner of certain real estate situated in the county of , and that the lien of said judgment upon said real estate is about to expire [or state other reasons why leame is desired to sue upon the judgmenf]. [That personal service of notice of motion for leave to sue upon said judgment cannot be uiade upon (said defendant) with due diligence, for the following reasons {state same).] ' A. B. [Sworn to, etc.] Form No. 16. Notice of Motion for Leave to Sue upon a Judgment. [Title.] Sir : Please take notice, that a motion will be made at a special term of this Court, to be held in and for the County of , at the County Courthouse therein, on the — day of ' The court may direct in what manner notice of the motion may be given, if it appears that personal service cannot be made with due diligence upon the adverse party, or the person proposed to be made the adverse party. Code Civ. Pro. § 1913, subd. 3. 26 bradbuey's Lansing's forms and practice. Leave to Sue. , 19 — , at — o'clock in the forenoon, or as soon there- after as counsel can be heard ; upon the affidavit hereto an- nexed for an order granting leave to the plaintiff to bring an action against the defendant upon the judgment men- tioned and described in said affidavit [with costs of this mo- tion], and for such other and further relief as may be proper. Dated , 19—. Yours, etc., M. ]Sr., Plaintiff'' s Attorney. To T. E., etc. \_Offlce Address.'] Form No. 17. Order Granting Leave to Sue upon a Judgment. (Code Civ. Pro. § 1913.) [At, etc., as in form for court order.] [Title.] On reading and filing the affidavit of A. B., sworn to , 19 — , and [namie any other motion ^^apers], with proof of due service of notice of motion upon, etc. [as required by the order of this court, made on the day of , 19 — ], and on reading and filing [name any ojypos- ing papers], and on motion of E. F., of counsel for the plain- tiif, and after hearing, etc. [or no one opposing] : It is hereby ordered, that leave be and hereby is granted to the plaintiff to bring an action against the defendant upon the judgment rendered in the above entitled action in the Court in favor of said A. B. against said defendant on the day of , 19 — , for dollars, dam- ages and [ dollars and cents] costs, which said judgment was entered and docketed in the office of the clerk of the court, county of on said date, (pr, on the day of , 19 — ). PROCEEDINGS BEFORE ACTION. 27 Leave to Sue. {b.) ACTIONS BY AND AGAINST KECEIVEES. 1. Necessity of receiver securing leave to sue. — While in all cases it may not be strictly necessary for a receiver to ob- tain leave from the court appointing him and whose officer he is, before bringing an action in his own name as receiver, the safest method is to do so, because, if for no other reason, it pre- vents costs being charged against him personally. 2. A receiver in supplementary proceedings must file with his application for leave to sue either a written request from the judgment creditor in whose behalf he was appointed, that such action be brought, or else he shall give a bond with sufficient security and properly acknowledged and approved by the court, to the person against whom the action is to be brought, conditioned for the payment of any costs which may be recovered against such receiver. And leave to bring actions shall not be granted except upon such written request or on the giving of such security. Hule 78, General Hules of Practice. 3. A receiver's application for leave to sue, in all cases except those of receivers in supplementary proceedings, must show that he has sufficient property in his actual possession to secure the person against whom the action is brought for any costs which he may 'recover against such receiver; otherwise the court may require the receiver to give a bond to secure the party against whom the action is to be brought for any costs he may recover against the receiver. Rule 78, General Rules of Practice. 4. Necessity of securing leave. — "A receiver is appointed upon a principle of justice for the benefit of all concerned. .... He is virtually a representative of the court, and of all the parties interested in the litigation wherein he is ap- pointed. He is required to take possession of property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in the litigation. He is not appointed for the benefit of either of the parties, but of all con- 28 Bradbury's Lansing's forms and practice. Leave to Sue. cerned. Money or property in his hands is in custodia legis. He has only such power and authoritj"- as are given him by the court, and must not exceed the prescribed limits. The court will not allow him to be sued touching the property in his charge, nor for any malfeasance as to the parties or others, without its consent ; nor will it permit his possession to be disturbed by force, nor violence to be offered to his person while in the discharge of his official duties. In such cases the court will vindicate its authority, and, if need be, will punish the offender by fine and imprisonment for contempt. The same rules are applied to the possession of a sequestrator. Where property in the hands of a receiver is claimed by another, the right may be tried by proper issues at law, by a reference to a master, or otherwise, as the court in its discre- tion may see fit to direct." Da/ois v. Gray, 16 Wall. 203, at page 21Y. No rule is better settled than that when a court has appointed a receiver, his possession is the possession of the court for the benefit of the parties to the suit, and all concerned, and can- not be disturbed, without leave of the court, and that if any person without leave intentionally interferes with such pos- session he necessarily commits a contempt of court and is liable to punishment therefor. In re Tyler, 149 U. S. 164 at page 181. It seems now to be settled law that where a receiver takes property that belongs to a third party, although he may do so innocently in the belief that the property belonged to his trust, he is liable for trespass and may be sued as of right by the person Avhose property he has converted. Fallon v. Egberts Woolen Mills Co., 56 App. Div. 685 ; 6Y Supp. 347. As a general proposition a receiver is considered as merely an arm of the court and no person will be permitted to in- terfere with the receiver's possession of property or to bring an action against him, except on leave of the court. Walling V. Miller, 108 IST. Y. 173 ; Woerishoffer v. North River Con- struction Co., 99 IST. Y. 398 ; Fallon v. Eglerts Woolen Mills Co., 31 Misc. 623 ; 64 Supp. 466. PROCEEDINGS BEFORE ACTION. 29 Leave to Sue. By a provision of the United States Statutes, however, any receiver appointed by a Federal Court may be sued in any court which has jurisdiction without previous leave of the court appointing the receiver. Act of March 3, 18ST, c. 373, §§ 2 & 3, as amended by Act of August 3, 1888, c. 866, § 2 ; 1 U. S. Compiled Statutes, p. 582. Where a receiver of a railroad was sued in the New York Supreme Court, under the permission granted by the United States Statutes, and the receiver was afterwards discharged, but no motion was made to substitute the corporation taking the property in place of the receiver as defendant, it was held that the action could properly be continued against the re- ceiver, notwithstanding his discharge. Baer v. MoOullough, 176 E". Y. 97. 5. Trustee in bankruptcy. — It is necessary to secure leave of court before bringing an action against a trustee in bank- ruptcy. See Loveland on Bankruptcy, 2d ed., p. 360. Form ]Vo. 18. Petition of Receiver for Leave to Bring Action. (Rule 78, Supreme Court Rules.) Court. In the Matter of the Application of A. B., as Eeceiver of C. D., for Leave to bring an Ac- tion against E. F. (Or the appli- cation may he entitled in the ac- tion in which the Receiver was ap- pointed.) To the Supreme Court of the State of New York, in and for the County of : 30 Bradbury's Lansing's forms and practice. Leave to Sue. Your petitioner herein, A. B., as receiver of C. D., respect- fully shows to the court : First : That on the day of , 190 , by an order entered in the Court, your petitioner was duly appointed receiver of [here state all the facts relating to the ap- pointment of the receiver]. Second : That your petitioner is advised and verily believes that he, as such receiver, has a good cause of action against E. F. by reason of the following facts : [here state concisely, in the form of a complaint, the facts on which the cause of action arises]. Third: That your petitioner upon diligent inquiry is in- formed and believes that the said E. F. is solvent, and that the claim is collectible from him by means of an action [or other- wise indicate to the court why the action if successfully prose- cuted will he of substantial advantage to the estate represented hy the receiver]. FouETH : That your petitioner has sufficient property of said estate, consisting of {here state speoifioally what property is in the receiver's hands) to secure the said E. F. for any costs which he may recover from your petitioner if such action is unsuc- cessful [if the receiver was appointed in supplementary pro- ceedings state that said X. Y., the creditor at whose instance your petitioner was appointed, has presented to your petitioner the written request hereunto annexed that such action be brought]. Fifth : That no previous application for such leave has been made. [Add this paragraph if the application is made ex parte.] Wheebfoee, your petitioner prays for leave to bring an ac- tion as such receiver in the Court against the said E. F. on the cause of action hereintofore stated. Dated , 190 . A. B. {Verif cation in the form required for a complaint.) PKOCEEDINGS BEFORE ACTION. 31 Leave to Sue. Form ]N"o. 19. Order Giving Receiver Leave to Sue. (Rule 78, Supreme Court Rules.) [At, etc., as in court order.] [Title.] Oa reading and filing the petition of A. B., receiver for 0. D., verified the day of 190 , asking for leave to bring an action against E. F. on the following cause of action {here state the nature of the action concisely) and on due proof of proper service of a notice of motion upon this application on [here state persons on whom notices of motion were served, if any'], and after hearing G. H., attorney for said receiver, in favor of said motion, and I. J., attorney for , in opposition thereto \_if any opposition is made], and the court being satisfied that the receiver ought to be authorized to bring such action, Now, on motion of G. H., attorney for said receiver, it is hereby Oedeebd, that said A. B., as such receiver, is hereby author- ized and directed to commence and prosecute an action in such court as he may be advised by his counsel against the said E. F. to recover said debt or claim [or, upon the cause of ac- tion hereinbefore stated]. [If security for costs is required, add a provision in the order to that effect, or if the receiver has sufficient funds in his hands to pay such costs, recite that fact in the order, and add that secu- rity for costs is dispensed with hy reason of the fact that the re- ceiver has sufficient to pay such costs.] Form No. 30. Petition for Leave to Sue Receiver. [Title of action in which receiver was appointed.] To the Supreme Court of the State of New York, and in and for the County of : [or other court as the case may he]. 32 Bradbury's Lansing's forms and practice. Leave to Sue. A. B., your petitioner herein, respectfully shows to the court : I. That C. D. was heretofore and on the day of , 190 , duly appointed receiver of \h,ere state full particulars about the appointment of the receiver, giving the place where the order of appointment was filed']. II. That your petitioner has a claim against said receiver arising upon the following facts : \here state concisely in the form of a complaint the facts constituting the cause of action]. III. That your petitioner has duly demanded of said receiver that he pay said claim [or do such other act as ought to he re- quired of the receiver to satisfy the petitioner'' s demands]. TV. That your petitioner has fully and fairly stated the case to G. H., his counsel, who resides at , in the City of , and that he has a good, substantial and meritorious cause of action thereupon [or that said receiver is a necessary party defendant to said action as he is advised by his said counsel] as he is advised by said counsel after such statement and he verily believes. Wheeefoee, your petitioner prays that such receiver may be compelled to satisfy said demand, or that your petitioner have leave to sue said receiver in this court upon said demand hereinbefore stated. Dated , 190 . A. B. ( Verification as in form, for a complaint^ Form No. 31. Order Granting Leave to Sue Receiver. An application having been duly made by A. B. for leave to sue C. D., receiver of E. F., duly appointed by an order of this court, which said order was filed in the office of the Clerk of the County of , on the day of , 190 , on an alleged cause of action for [here state concisely the PHOCEEDINGS BEFORE ACTION. 33 Leave to Sue. cause of action as specified in the petitio!J~\ and due notice of said application having been given to said receiver, Now, on reading and filing the petition of said A. B., veri- fied the day of , 190 , and the notice of motion, with due proof of service thereof on C. D., said re- ceiver, and on reading and filing the afiidavit of , sworn to the day of , 190 , in opposition to said motion, and after hearing G. H., Esq., counsel for said A. B., in favor of said motion, and I. J., Esq., counsel for said receiver, in opposition thereto, and due deliberation having been had, it is, on motion of G. H., counsel for said A. B. hereby Oedeeed, that said application be, and the same hereby is, granted, and said A. B. is hereby granted leave to bring an action against said C. D. as such receiver upon the cause of action hereinbefore and in said petition specified, said action to be brought in this court [or, oedeeed that said motion be, and the same hereby is, in all respects denied]. l^If security is required further state that the order is granted upon giving security in the amount and, binder the conditions required hy the court, or, if security is dispensed with, recite this fact in the order.] (c.) ACTIONS IN NATUEE OF QUO WAEEANTO. 1. Forfeiture of franchise. — An action for the dissolution of a corporation and forfeiting its corporate rights, privileges and franchises may be maintained by the Attorney General as provided in Code Civ. Pro. § § 1785, et seq., without leave of court. If the Attorney General fails to bring the action, within sixty days after he is requested so to do by a creditor or stockholder of the corporation, such creditor or stockholder may apply to the court for leave to bring the action. Code Civ. Pro. § 1Y86. 2. Vacating and annulling act of incorporation.— In case the Legislature so directs, the Attorney General, with leave of court, may bring an action to secure a judgment vacating or annulling an act of incorporation on the grounds specified in Vol. 1—3 34 bradbuey's Lansing's forms and practice. Leave to Sue. Code Civ. Fro. § 1798. Leave of court, however, is essential and without it a judgment dissolving a corporation cannot be obtained. People v. Lowe, 47 Hun, 577. 3. The application of the Attorney General for leave to bring the action should state the facts which constitute the offense, as specified in § 1798, and not merely quote the lan- guage of the statute. Matter of Attorney General, 81 Hun, 541 ; 30 Supp. 1093. 4. Notice to corporation. — The court may, in its discretion, require notice of the application for leave to sue to be given to the corporation or it may grant leave ex parte. Code Civ. Pro. % 1799 ; People v. B. H. T. & W. R. Co., 27 Hun, 528 ; People V. M. U. Tel. Co., 2 McCarthy, 295. 5. The court will not determine the merits of the pro- posed action on the application for leave to sue ; all that is re- quired is that the Attorney General shall state facts which taken as true make a lona fide case. Matter of Attorney General v. Ulster c& Pel. P. Co., 50 Hun, 511. See also. Matter of Attorney General, 18 St. E. 122. 6. The order should specify the grounds on which the ac- tion is to be brought. Matter of Attorney General, 81 Hun, 541 ; 30 Supp. 1093. 7. The judgment in such an action cannot in effect confiscate the property of the corporation but can only annul the act of in- corporation. People V. O'Brien,^ 111 IST. Y. 1 ; rev'g 45 Hun, 519. ' This case involved an immense sum of money, was exhaustively argued by many able counsel on behalf of all the various parties interested and was carefully considered by the court. Among the questions decided the most important one was that where a corporation had secured by purchase from another corporation a franchise from a municipality to run cars along city streets, and the charter of the purchasing company was subsequently annulled for abuse of its corporate power, the property right thus acquired notwithstanding the dissolution, still belonged to the. corporation and should be sold for the benefit of the stockholders and creditors of the corpo- ration. PKOCEEDINGS BEFORE ACTION. 35 Leave to Sue. Form No. 33. Petition by Attorney General for Leave to Bring an Action to Va- cate and Annul the Charter of a Corporation. (Code Civ. Pro. § 1798.) To tlie Supreme Court of the State of New York : The Attorney General of the State of New York by this petition respectfully shows to the court : I. That the (name of corporation) was duly incorporated under the Laws of the State of New York, to wit, under the Business Corporations Law {or in other manner as the case may he) on the ■■ day of - — ■- , 190 , and its principal place for the transaction of business iu this State is in the City of- . II. That your petitioner as such Attorney General has been directed by the Legislature of the State of New York, pursu- ant to an act passed and which became a law on the day of , 190 , which said statute is Chapter of the Laws of 19 — , to bring an action against said {name of corporation) to procure a judgment vacating or annulling said act of incorporation {or any act renewing the corporation or re- newing its corporate existence) upon the grounds that the said act was procured upon a fraudulent suggestion or the conceal- ment of a material fact made by or with the knowledge and consent of the persons incorporated or some of them. III. The specific ground upon which said action is to be brought is as follows : {here state one of the grounds specified in Code Ci'o. Pro. § 1798, and state specifically, in the form of a complaint, the facts sustaining the grounds specified). Dated, New York, the day of , 190 . A. B. Attorney General. 36 bradbuey's Lansing's forms and practice. Leave to Sue. Form No. 23. Order Oranting Leave to Attorney Oeneral to Sue. (Code Civ. Pro. § 1798, 1799.) [At, etc., as in court order. \ [Title.] The Attorney General of the State of New Tork, having ap- plied for leave to sue {name of corporation) to procure a judg- ment vacating or annulling the act of incorporation {or a/ny act renewing the corporation or continuing its corporate existence) pursuant to a direction to said Attorney General from the Leg- islature of the State of New York, which said direction is con- tained in Chapter of the Laws of 19 — , on the ground that {state one of the grounds specified in Code Civ. Pro. § 1798) and the court having required notice to be given to said corpora- tion of this application, and a notice having been given ac- cordingly, and said matter having come on regularly to be heard, Now, on reading and filing the petition of said Attorney General, dated the day of , 190 , and the affidavits of — , verified the day of , 190 , in opposition thereto, and after hearing said Attorney General in favor of said motion, and C. D., Esq., in opposition thereto, and due deliberation having been had, it is hereby Oedeeed, that said application of the Attorney General be, and the same is hereby, granted, and said Attorney General is hereby granted leave to bring an action against the said {name of corporation) to procure a judgment vacating or an- nulling the act of incorporation, or any act renewing the cor- poration or continuing its existence {or Oedebed, that the mo- tion for leave to bring said action be, and the same is hereby in all respects denied). pRocfiEbiNGS bEfoiie Action. 37 Leave to Sue. Form No. 34. Request to Attorney General to Sue. (Code Civ. Pro. § 1786.) To the Attorney General of the State of New York : You are hereby requested to bring an action against (name of corporation) pursuant to the provisions of the Cod^ of Civil Procedure^ § 1Y85, to procure a judgment dissolving said cor- poration and forfeiting its rights, privileges and franchises. The grounds of such action are as follows : {state fully in the form of a complcmit the facts relied upon). A. B. Dated, New York, day of ■ — 190 . {Signature and address of Applicant.) State of New Yoek, ) County of New Yoek. j A. B., being duly sworn, deposes and says, that the facts stated in the foregoing application to the Attorney General are true of his own knowledge. A. B. Sworn to before me this day of , 190 . CD., Notary Public. Form No. 35. Petition by Creditor or Stockholder for Permission to Sue Upon Befusal of Attorney General to Bring Action. (Code Civ. Pro. § 1786.) To the Supreme Court of the State of New York in and for the County of : A. B., your petitioner herein, respectfully shows to the court : I. The {name of corporation) was duly organized under the 38' Bradbury's Lansing's forms and practice. Leave to Sue. Laws of the State of New York on the day of 190 , under the Business Corporations Law {Jiere state specifi- cally how and when the corporation was organized, either hy special act or otherwise, if not organized under the Business Corporations Law). IL That your petitioner is a creditor {or stockholder) of said corporation and recovered a judgment against said corporation on the day of , 190 , in the Supreme Court for the sura of dollars, which judgment was duly entered and docketed in the office of the Clerk of : County on the day of , 190 , and execution duly issued thereon has been returned wholly unsatisfied. III. That on the day of , 190 , your peti- tioner duly presented to the Attorney General of the State of New York, a written statement of facts, verified by his oath, showing grounds for an action against said corporation under the provisions of Section 1785 of the Code of Oivil Procedure, and a copy of said statement is hereunto annexed and made a part hereof as though set forth in full, and your petitioner herein repeats the facts contained in said statement so pre- sented to said Attorney General as if the same were incor- porated herein in full ; that more than sixty days have elapsed since said statement and request were presented to said At- torney General, and said Attorney General has omitted for more than sixty days after such submission to commence an action as requested by your petitioner. Wheeefoeb, your petitioner prays that an order may be entered giving your petitioner leave to commence an action against said corporation to procure a judgment dissolving the said corporation and forfeiting its rights, privileges and fran- chises on the ground that said corporation has {state one of the grounds specified in Code Oa}. Pro. § 1785.) A. B. C. D., Attoenet foe PlainUff, State of New Yoek, ) , , County of New Yoek. \ A. B., being duly sworn, deposes and says, that he is the PROCEEDINGS BEFORE ACTION. 39 Leave to Sue. petitioner named in the foregoing petition ; that the said peti- tion is true of his own knowledge, except as to such matters as are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. A. B. Sworn to before me this day of , 190 . E.r. Notary Public, County. Form No. 36. Order Granting Leave To Creditor or Stockholder to Sue. (Code Civ. Pro. § 1986.) [At, etc., as in court order.] [Title.] It appearing by the petition herein of verified the -day of , 190 , that the {name of corporation) is a corporation organized on the day of 190 — , under the Laws of the State of New York, to wit, under the {state statute under which corporation was organized), and that the said petitioner, A. B., is a creditor {or stockholder) of said corporation, and as such submitted to the Attorney General on the day of , 190 , a written statement of facts, verified by oath, showing grounds for an action against said corporation under Section 1785 of the Code of Civil Pro- cedure, to procure a judgment dissolving said corporation, for- feiting its corporate rights, privileges and franchises on the ground that {state one of the grounds specified in § 1785) and the Attorney General having omitted for more than sixty days after such request to commence an action as therein specified, and said petitioner having made application to the court for leave to bring said action, Now, on reading and filing the petition hereinbefore speci- fied, and on motion of C. D., Esq., attorney for said petitioner, {recite any other appearances or papers filed), it is hereby 40 beadbuey's Lansing's foems and peactice. Leave to Sue. Oedeeed, that leave be and hereby is granted to said A. B. to bring an action against said {specif y name of corporation) to procure a judgment dissolving said corporation and forfeit- ing its rights, privileges and franchises on the ground that said corporation has (specify one of the grounds mentioned in Code Civ. Pro. § 1785). {d) AS POOE PEESON. Form ]Vo. 37. Petition for Leave to Prosecute as a Poor Person. (Code Civ. Pro. § 459.') To the Court : The petition of A. B., of / respectfully shows, that he is a poor person, and is not worth one hundred dollars, be- sides the wearing apparel and furniture necessary for himself and his family and the subject-matter of an action which [*], he has brought and which is now pending in this court [or which he intends to bring in this court], against C. D., of , to recover the amount of a certain promissory note for ■ dollars, made by said CD., dated , 19 — , and payable, with interest, to the order of your petitioner ■■ months after date, and which is owned and held by your petitioner, and has not been paid, nor any part thereof, but is justly due and owing to your petitioner [or upon other cause of action, stating it~\. And your petitioner, therefore, prays for leave to prosecute said action [or an action], upon said promissory note, against the said C. D., as a poor person, and to have an attorney and counsel assigned to conduct his said action. Dated , 19—. A. B. ( Verification as in form for pleading}) ' The petition must be verified by the applicant's affidavit, unless the applicant is an infant under the age of fourteen years, and in that case by the affidavit of his guardian appointed in the action, Code Civ. Pro. § 459. The above petition and verification can be easily adapted to the case of an infant petitioner. PROCEEDINGS BEFORE ACTION. 41 Leave to Sue. Form No. 38. Certificate of Counselor at Law Annexed to above Petition. (Code Civ. Pro. §459.) I, M. ISr., of the of , in the State of New York, counselor at law, do hereby certify that I have exam- ined the case stated in the within petition, and am of opinion that the applicant has a good cause of action upon [or defense to] said note mentioned in the petition [or state other cause of actioii] against CD. Dated , 19—. M. ¥. Form No. 39. Order Granting Leave to Prosecute Action as a Poor Person. (Code Civ. Pro. § 460.) [At, etc., as in court order.] [Title.] On reading and filing the petition of A. B., of dated , 19 — , for leave to prosecute as a poor person an action brought by him, now pending in this court [or which he intends to bring in this court] against C. D., of , upon the cause of action mentioned and set forth in said petition, and the court being satisfied of the truth of the facts alleged and that the applicant has a good cause of action, Now, on motion of I. L., counsel for said petitioner, it is hereby ordered, that the said A. B. is hereby admitted to prosecute said action as a poor person, and that said I. L. be and he is hereby assigned to said. A. B. as his attorney and counsel to prosecute said action, who is to act therein without compensation. 42 beadbuey's Lansing's fobms and peactice. Leave to Sue. Form ]Vo. 30. Order Annulling Leave to Prosecute or Defend as a Poor Person. (Code Civ. Pro. § 462.) [At, etc., as in court order.] [Title of cause.] It having appeared by affidavit of , that A. B., the plaintiff [or defendant], in the above entitled action, has been guilty of improper conduct in the prosecution [or de- fense] of said action [or has been guilty of willful and unnec- essary delay in the prosecution {or defense) of said action] so as to make it proper that the order of this court, made , 19 — •, granting leave to said A. R to prosecute [or defend] said action as a poor person should be annulled, and due no- tice of this motion having been given to I. L., attorney for said A. B., It is hereby ordered, on motion of M. N., defendant's [or plaintiff's] attorney, and after hearing I. L., attorney and coun- sel for said A. B., in opposition thereto [or no one appearing to oppose], that, the said order granting leave to said A. B. to prosecute [or defend] the said action as a poor person be and the same is hereby annulled. Form ]Vo. 31. Petition for Leave to Defend an Action as a Poor Person. (Code Civ. Pro. § 463.) As in Form No. 27 to [*], and from thence as follows : has been brought against him in this court, by C. D., of , involving your petitioner's right, title and interest in and to personal [or real] property, which action is now pending in this court 5 that said action is brought to recover a certain chattel, to wit : a cow, of which your petitioner is in possession, and which is alleged by said C. D. to be owned by him, and your PROCEEDINGS BEFORE ACTION. 43 Leave to Sue. petitioner claims that the said chattel is his property [stating facts in regard to title ; or state other defense or in like man- ner set forth other subject-matter of the actiooi and defense']. And your petitioner therefore prays for leave to defend said action as a poor person, and to have a^ attorney and counsel assigned to conduct his said defense. Dated , 19—. A. B. [Verification as in pleading. ] [Annex certificate as inform No. 28.] Form No. 33. Order Granting Leave to Defend Action as a Poor Person. (Code Civ. Pro. § 465.) [At, etc., as in court order. ^ [Title.] On reading and filing the petition of A. B., of , dated -, 19 — , for leave to defend as a poor person the above entitled action, which has been brought against him in this court, involving the right, title and interest of said petitioner in and to personal [oT-real] property, and is now pending in this court, and the court being satisfied of the truth of the facts, alleged by said petitioner, and that the apphcant has a good defense to said action, and due notice of this motion having been given, to the attorney for the plaintiff herein, as appears by the notice' of motion dated ^ — '■ ■-, 19 — , with due proof of serv- ice thereof on G. H., attorney for the plaintiff. Now, on motion of I. L., counsel for said petitioner, and no one appearing to oppose [or after hearing E. F., counsel for said C. D.], it is hereby Oedeeed that said A. B. be admitted to defend said action as a poor person, and that I. L., of , be and he is hereby assigned to said A. B., as his attorney and counsel, to defend said action, who is to act therein without compensation. , 44 beadbuey's Lansing's foems and PEAGTlcfi. Leave to Sue. (e.) ON BONDS. Form No. 33. Application for Leave to Sue on Bond Executed to the People or a Public Officer, by Party interested. (Code Civ. Pro. § 814.' ) [Title of action in which bond was given if in an action or special proceeding.] \^lf not given in an action or proceeding make the application in the form of a petition as follows : To the Supreme {or other) Court of the State of New Tork in and for the County of . Thence as follows in a new pa/ragraph : A. B., your petitioner herein, respectfully shows to the court :] {If in an action as fallows'): State of New Yoek ) COONTY OF j ®®' ■ A. B., being duly sworn deposes and says {here state fully the facts, giving the time of giving the hand, where the same was filed, its amount and the names of the sureties thereon; also the facts in the form of a complaint indicating that the affiant, or petitioner, has a cause of action on the bond and state that) there is no provision specially made by law for the prosecution of said bond by deponent. Form No. 34. Order Granting Leave to Sue on Bond Executed to People or Public Officer for the Benefit of Party or Person Interested. (Code Civ. Pro. § 814.) [At, etc., as in court order.] [Title.] On reading and filing the affidavit of A. B., dated » This .section applies only to bonds given in the name of the people or of a public officer and not to those given directly to a party to an action, and this does not apply to undertaking given to procure an order of arrest. Krause v. Rutherford, 45 App. Div. 132; 60 Supp. 1047. PKOCEEDINGS BEFORE ACTION. 45 Guardian ad Litem for Plaintiff or Defendant. 19 — , showing that a bond [or undertaking], dated , 19 — , was given by the defendant, C. D., in the above entitled action, and executed by [said C. D. with] E. F. and G. H. as sureties, to the people of the State of New York [w to public officer, stating official title] for the benefit of said A. B. ; that there has been a breach of the condition of said bond [or of the terms of said undertaking], and due notice of this motion having been given to [naming persons interested] and on read- ing [specify opposing papers], Now, after hearing I. J. of counsel for said A. B. and K. L. for said C. D. [or no one appearing to oppose]. It is hereby ordered and directed [or I do hereby order and direct], that said A. B. have leave to prosecute the said bond [or undertaking] in his own name. A. O., Judge [or Justice] of the Court {when made by judge). lY. GtJAEDIAN AD LITEM FOK PLAINTIFF OE DEFENDANT.^ FORMS. NO. PAGE. 35. Petition for appointment of guardian for infant plaintiff 51. 36. Affidavit of person proposed as guardian, as to his ability to an- swer to infant, etc 52. 37. Petition for appointment of guardian by infant defendant 52. 38. Petition by relative or friend of infant defendant, or by a party to the action, for appointment of guardian 53. 39. Order of court, or judge appointing guardian for infant defendant 54. 40. Same order made upon the application of the infant 55. 41. Affidavit to procure order designating guardian for infant defend- ant residing in State, but temporarily absent therefrom. ... 56. 42. Order designating guardian for absent infant 56. 43. Bond by guardian, other than general guardian, before receiving property 57. 1. How action for infant plaintiff brought. — There is somewhat of a conflict between the various statutes as to the precise manner in which an action may be brought to protect ' A guardian ad litem is not appointed for a defendant before suit, but the proceedings for such an appointment are similar to those for a plaintiff and so are inserted in this place. 46 bkadbury's Lansing's forms and practice. Guardian ad Litem for Plaintiff or Defendant. the interests of an infant. Under the Code of Civil Procedure (§§ 368 et seq.), the rights of an infant may not be deferred or delayed on account of infancy. But "before a sum- mons is issued, in the name of an Infant plaintiff, a com- petent and responsible person must be appointed, to appear as his guardian for the purpose of the action," etc. Oode Civ. Pro. § 469. By the Ee vised Statutes re-enacted in the Do- mestic Eelations Law, ( L. 1896, c. 272, § 52 ; 1 Cum. omd O. Gen. L. p. 1107) ; it is provided that the general or testamen- tary guardian of an infant " shall also take the custody and management of the personal estate of such minor and the prof- its of his real estate, .... and may bring actions in relation thereto as a guardian in socage might by law. " Neither one of these acts in terras' repeals or affects the other. It has also been held that both acts were still in force and that a general guardian might, as such, still maintain actions for the benefit of his ward. Carr v. Huff, 57 Hun, 18 ; 10 Supp. 361. But it is pointed out in this case that the better and safer practice is to have a guardian ad litem appointed in all cases where an infant becomes the plaintiff in htigation. See also SegelTcen v. Meyer, 94 N. T. 474. 2. Submission of controversy. — An infant cannot submit a controversy by his guardian ad litem. Fisher v. SPilson, 9 Abb. Pr. 33. 3. Jurisdiction of the court to appoint The court has power to appoint a guardian for an infant defendant upon the application of the plaintiff, if the defendant fails to make the application himself, or any of the persons mentioned in the statutes fails to make the application for him. But the ad- verse party must not nominate the guardian. Matter of Cut- ting No. 1, 38 App. Div. 247 ; 66 Supp. 945 ; Lake v. Kessel, 64 App. Div. 540 ; 72 Supp. 311. The court has no jurisdiction to appoint a guardian ad litem if the summons is not served on the infant, and therefore the appearance in the action of a guardian appointed without such PROCEEDINGS BEFORE ACTION. 47 Guardian ad Litem for Plaintiff or Defendant. service of the summons, does not cure the defect in jurisdiction. Ingersoll v. Mangam, 84 N. Y. 622 ; distinguishing Gotendorf V. Ooldschmidt, 83 N. Y. 110. But service on the infant may be proved by the affidavit of a third party. Murphy v. Shea, 143 S". Y. 78. 4. Service of summons by publication. — If service of the summons is made on the infant by publication or personally out of the State, pursuant to an order, the service is not com- plete, under Code Civ. Pro. % 441, until forty-two days after the first publication, or until the same number of days after the time of personal service without the State, and the court has no ju- risdiction to entertain an application for the appointment of a guardian adlitem for an infant defendant until after forty-two days in either event ; nor can a guardian by securing an ap- pointment prior to the lapse of such time waive this provision of the statute. Crouter v. Crouter, 133 JST. Y. 55. The same general rule applies in Surrogates' Courts, and the court has no jurisdiction to appoint a guardian for an infant in a proceed- ing therein until service of a citation on the infant. Potter v. Ogden, 136 N. Y. 384. See also Davis v. Crandall, 101 N. Y. 321 ; Smith v. Reid, 134 N. Y. 568. 5. Section 473, Code Civ. Pro. — The provisions of sec- tion 473 of the Code of Civil Procedure, must be strictly com- plied with to make an appointment thereunder valid. Smith V. Beid, 134 jST. Y. 568. The application of this section is not entirely clear. It provides that " where an infant defendant resides out of the State or resides within the State, and is tem- porarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such guard- ian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order respecting the service thereof, which may be upon the infant. The sum- mons may be served by delivering a copy to the guardian so 48 BRADBURY'S LANSING'S FORMS AND PRACTICE. Guardian ad Litem for Plaintiff or Defendant. appointed, w'ith like effect as where a summons is served witiiout the State upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section 438 of this act ; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service." The section seems to provide a means of bringing an infant into court without the service of a summons on him at all, either personally or by publication, and for the appointment of a guardian ad litem for such defendant without the service of a summons on the infant in any manner, contrary to the general rules established by the courts, as can be seen by an examination of the cases herein cited. Section 473 does not apply where the infant defendant is a nonresident and the summons is served by publication or personally without the State. Piatt v. Finok, 60 App. Div. 312 ; 70 Supp. 74. 6. Effect of failure to appoint guardian The rule seems to be established that the failure to appoint a guardian for an infant plaintiff before the action is brought, is not a juris- dictional defect ; that it is an irregularity, of which advantage may be taken by motion, but if no such motion is made until after the action goes to judgment, or until after the infant be- comes of age, either before or after judgment, the irregularity is deemed waived by the defendant and the court may appoint a guardian 7iuno pro tunc. Sims v. N. Y College of Dentis- try, 35 Hun, 344; Smart v. Raring, 14 Hun, 276; Rijna v. Rossie Iron Works, 120 IST. T. 433 ; aff 'g 47 Hun, 153. Failure to appoint a guardian for an infant defendant is an irregularity ; the judgment is voidable but not void. MoMur- ray v. McMurray, m K T. 175 ; Frost v. Frost, 15 Misc. 167; 37 Supp. 18. 7. By whom application made — If the infant is fourteen years of age, or over, the application must be made by him ; if under that age, by his general or testamentary guardian, if he has one, or by a relative or friend. If by a relative or friend, PROCEEDINGS BEFORE ACTION. 49 Guardian ad Litem for Plaintiff or Defendant. notice of the application must be given to the infant's general or testamentary guardian, if he has one; if not, to the person with whom the infant resides. Code Civ. Pro. % 470. The nomination of a guardian ad litem cannot in any case be made by the adverse party. Bule Jf9, Gen. Mules of Prac- tice. 8. Who appointed. — The Code of Civil Procedure and Eules of Practice contain specific provisions as to who shall be ap- pointed as guardians for infants. He must be a " competent and responsible person." Code Civ. Pro., § 471. He must be a person who is " fully competent to understand and protect the rights of the infant, and has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be ap- pointed such guardian who is not of sufficient ability to answer to the infant for any damages which may be sustained by his negligence or misconduct in the defense or prosecution of the suit, and such ability shall be shown by affidavit stating facts in respect thereto. And no person shall be appointed guardian ad litem who is nominated by the adverse party." Mule Ji.9, General Mules of Practice. The appointment of a clerk in the office of the attorney for the plaintiff as guardian ad litem for an infant defendant, in an action for partition, is such a defect in the proceeding as to relieve the purchaser upon the sale from taking title. Lake v. Kessel, 64 App. Div. 640 ; 72 Supp. 311. The term " connected in business" shouJ.d be construed in a broad sense, but such an appointment does not necessarily deprive the court of jurisdic- tion, where the proceedings are otherwise regular, so as to render an interlocutory judgment of sale voidable, if no appeal is taken from the order appointing such a person. Parrish V. Parrish, 175 N. Y. 181 ; rev'g 77 App. Div. 267; 78 Supp. 1089. Appointment of a person whose interests are adverse to those of the infant is more than an irregularity. Hecker v. Sexton, 43 Hun, 593. And where a guardian ad litem is ap- VOL. 1—4, 50 Bradbury's Lansing's forms and practice. Guardian ad Litem for Plaintiff or Defendant. pointed who is nominated by the adverse party the appoint- ment should be vacated. Matter of Cutting No. 1, 38 App. Div. 247; 56 Supp. 945. The father of the infant will not be appointed unless he has sufficient means to fulfill the requirements of Code Cm. Pro. % 469. Michel v. Mang, 5 Civ. Pro. R. 162. If the -guardian appointed is not of the pecuniary responsibility required by the statute and rules the defendant must raise the objection as soon as he discovers the fact. Wice v. Commercial Ins. Co., 7 Daly, 258 ; 2 Abb. K C. 325. 9. Security by guardian. — Where the plaintiff in an action brought by her guardian ad litem recovers a money judgment, neither the guardian ad litem, nor her attorney can take a single step towards enforcing the collection of the judgment, either by issuing execution or otherwise, until the guardian ad litem has given security required by Code Civ. Pro. § 474 and Hule 51 Gen. Rules of Practice. Wileman v. Met. St. By. Co., 80 App. Div. 53 ; 80 Supp. 233. This provision does not apply to general guardians who have given securit}^, but the court may, at any time, require a gen- eral guardian to give further security. Code Civ. Pro. § 476. Omission to require a bond from the guardian ad litem in favor of each infant in partition does not divest the court of jurisdiction. Reed v. Reed, 46 Hun, 212. 10. After an action is begun by a guardian ad litem of an infant and the infant thereafter becomes insane the committee subsequently appointed may properly be substituted as plain- tiff in the action without the appointment of another guardian nunc pro tunc. Callahan v. N. Y. Central etc. R. Co., 99 App. Div. 56 ; 90 Supp. 657. 11. Terification of petition. — There is no statute requiring the verification of a petition for the appointment of a guard- ian ad litem, although the proper practice requires such verifi- cation. Baumeister v. Demuth, 84 App. Div. 394 ; 82 Supp. 831. PROCEEDINGS BEFORE ACTION. 51 Guardian ad Litem for Plaintiff or Defendant. Form No. 35. Petition for Appointment of Guardian ad litem for Infant Plaintiff. (Code Civ. Pro. §§469, 470.) To the Court [or to Hon. A. 0., Judge (or Justice) of the Oourf] : The petition of A. B. [or of C. D.] respectfully shows, that said A. B. is an infant of the age of years [or that said C. T>. .is the general guardian, or testamentary guardian or a relative, to wit : a (stating relationship), or friend of A. B., who is an infant under fourteen years of age to wit : of the age of years and upwards] ; that your petitioner [or that said A. B.] is about to com- mence an action in the Supreme Court of the State of New York [or other court, stating title} against M. N. for [here state cause of action']. And your petitioner prays that he [or that P. E., of , counselor at law, who is a com- petent and responsible person, and fully competent to un- derstand and protect the rights of said A. B., and has no interest adverse to said A. B.] and is not connected in business with the attorney or counsel of the adverse party, may be appointed to prosecute the said action for your petitioner [6>^ for said A. B.] as the guardian, pursuant to the statute in such case made and provided. Dated , 19—. A. B. [or 0. D.] ( Verification in same form as pleading.) I, C. p. [or P. K.], consent to become the guardian of A. B., in the action mentioned in the foregoing petition. Dated , 19—. C. D. [or P. K.] State of New York, } . County, \ On this day of , 19—, before me per- sonally came C. D. [or P. K.], to me known to be the 52 Bradbury's Lansing's forms and practice. Guardian ad Litem for Plaintiff or Defendant. individual described in and who executed the foregoing con- sent and he acknowledged that he executed the same. I. J., iN'otary Pubhc. Form No. 36. Affidavit of Person Proposed as Guardian as to his Ability Jo Answer to Infant. (Code Civ. Pro. § 469 ; Gen. Rules of Prac. No. 49.) County, ss. : C. D. of , being duly sworn, says that he is the person named in the annexed petition for appointment as guardian of A. B., an infant in an action [about to be] commenced by [or against] said A. B. against [or, by] M. N. ; that he is of suf- ficient ability to answer to said infant for any damage which may be sustained by his negligence or misconduct in the pro- secution [or defense] of said suit, being worth the sum of dollars over and above all debts and liabilities owed or incurred by him and exclusive of property exempt by law from execution. 0. D. [Sworn to, etc.] Form IVo. 37. Petition for Appointment of Guardian ad litem by Infant De- fendant. (Code Civ. Pro. § 471.) [Title.] A. B. by the petition respectfully shows to the court : That your petitioner is an infant of the age of fourteen years and upwards. That an action has been commenced in the Court PROCEEDINGS BEFORE ACTION. 53 Guardian ad Litem for Plaintiff or Defendant. by E. F. against your petitioner, for \here state cause of action]. That the summons in said action was served upon your petitioner, on the ■ day of , 19 — . And your petitioner prays [*] that O. P., who is the gen- eral guardian of your petitioner [or that P. R., a mer- chant, who is a competent and responsible person, and is fully competent to understand and protect the rights of your petitioner, and has no interest adverse to your peti- tioner, (f) and is not connected in business with the attorney or counsel of the adverse party, and] is of sufficient ability to answer to your petitioner for any damage which may be sustained by his negligence or misconduct in the defense of said suit, [fl may be appointed the guardian of your peti- tioner, said A. B., in the defense of said action, according to the statute in such case made and provided. Dated , 19—. A. B. [ Verification as for a pleading and consent, acTcnowledg- ment and affida/vit as informs JVos. 35 and 36 to he annexed.] Form No. 38. Petition by Relative or Friend of Infant Defendant, or by a Party to the Action, for Appointment of Guardian. (Code Civ. Pro. § 471.) [Title.] The petition of C. D. respectfully shows : That an action has been commenced by your petitioner \or by E. D.] as plaintiff against A. B. and others, defendants, for \_here state cause of action.] That the said defendant, A. B., is an infant of the age of fourteen years and upwards, and has neglected to apply within twent}^ days after the service upon him of the sum- mons in this action, which service was made on the 54 Bradbury's Lansing's forms and practice. Guardian ad Litem for Plaintiff or Defendant. day of , 19 — [or that said defendant, A. B., is an infant under fourteen years of age]. That your petitioner is a party to said action, being the plaintiff as aforesaid [w' being a defendant therein, or is a relative {or friend) of the said infant]. And your petitioner prays [as in form No. 37, from (*) to close, substituting the words " said infant " for the words " your petitioner," where they occur therein].* A. B. [ Yerification, consent, acknowledgment cmd affidamit to he annexed as informs Wos. 35 and 36. '\ Form No. 39. Order of Court or Judge Appointing Guardian for Infant De- fendant. (Code Civ. Pro. § 472.) [At, etc., as in form of court order when made by the court.] [Title.] It appearing by the verified petition of C. D. dated , 19 — , among other things, that the above entitled action has been brought in the Court, that the defendant, A. B., is an infant of the age of fourteen years and upwards, and that no application has been made by said infant for the appoint- ment of a guardian ad litem for him in said action, although more than twenty days have elapsed since the service of the summons in said action upon him \or that the defendant, ' See Freund v. Washburn, 17 Hun, 543; Ingersoll v. Mangam, 84 N. Y. 622; Gotendorf v. Goldschmidt, 83 N. Y. 110; Wood v. Martin, 66 Bar 241; McDonald v. Brass Goods Manuf. Co., 2 Abb. N. C. 434; Smith v. Reid, 134 N. Y. 568; Schell v. Cohen, 55 Hun, 207; 7 Supp. 858; Crouter v. Crmter, 133 N. Y. 55; Potter v. Ogden, 136 N. Y. 384; Shane v. MaHin, 77 Hun, 249; 28 Supp. 332; Murphy v. Shea, 143 N. Y. 78, as to what must ap- pear upon the application. See, as to guardian's bond in partition suit, § 1536, Code Civ. Pro. PROCEEDINGS BEFORE ACTION. 55 Guardian ad Litem for Plaintiff or Defendant. A. B., is an infant under the age of fourteen years] and that C. D. is a party [plaintiff or defendant] in said action \or is a relative (or friend) of said infant], and that due notice of this application has been given. Now, on motion of E. F., attorney for the plaintiff, it is hereby ordered that [*] O. P., the general guardian of said in- fant and \or that P. K., merchant] a competent and responsible person, be and he is hereby appointed the guardian ad litem of said A. B., defendant in the above entitled action. Dated \^wlxenmade hy judge]. [Signature to judge's order.] Form No. 40. Same Order Made upon the Application of the Infant. (Code Civ. Pro. § 472.) [At, etc., as inforTn of court order when tnade hy court I] [Title.] It appearing by the petition [or affidavit] of A. B., dated , 19 — , that the above entitled action has been brought in the Court, and that said A. B., the defendant [or one of the defendants] is an infant of the age of fourteen years and upwards. Now, on motion of I. J. [counsel for said A. B.], it is hereby ordered that [here insert as in form No. 39 from (*) to close]. Date [of judge^s order]. [Signature to judge's order.] 56 Bradbury's Lansing's forms and practice. Guardian ad Litem for Plaintiff or Defendant. Form No. 41. Affidavit to Obtain Order Appointing Guardian for Besident In- fant Defendant Temporarily Absent. (Code Civ. Pro. § 473.) [Title.] COONTY, ss. : A. B., of , being duly sworn, says, that he has made inquiry for the purpose of ascertaining the whereabouts of the defendant, C. D., in the above entitled action, at the request of plaintiff's attorney, with the intention of serving upon him the summons in said action ; that he has learned by such inquiry tliat said infant, who resides at , in the State of New York, is temporarily absent from the State of New York, and is now in , in the of , and is expected to be so absent for at least ; that said inquiry was made at and in the neighborhood of the residence of said A. B. \or otherwise, according to the facf], and was made of [state here what inquiry was made and of whom and what in- formation was obtained]. A. B. Sworn to, etc. Form No. 43. Order Designating Guardian for Infant Defendant, Residing out of State, or Residing therein but Temporarily Absent Therefrom. (Code Civ. Pro. § 473.) [At, etc., as inform of court order.'] [Title.] It appearing by the aifidavit of A. B., dated -, 19 that C. D., the defendant [or one of the defendants] in the above entitled action, is an infant and resides at in PROCEEDINGS BEFORE ACTION. 57 Guardian ad Litem for Plaintiff or Defendant. the State of New York, but is temporarily absent from said State, {or resides out of the State of New York). Now, on motion of I. L., attorney for the plaintiff, it is hereby ordered, that P. C, of , an attorney of this court, and a competent and responsible person, is hereby des- ignated and appointed as the guardian ad litem of said infant defendant, A. B., in said action, unless said infant, or some one in his behalf, procures such a guardian to be appointed according to law, within days after service of a copy of this order upon him. And it is hereby ordered and directed that service of said copy of this order be made upon said in- fant by delivering the same to said infant {here insert special directions for service]. Form No. 43. Bond by Guardian, Before Receiving Property. (Code Civ. Pro. §§474, 475.) Know all Men by these Presents, That we, M. N., P. Q. and R. S., of , in the county of , and State of New York, are jointly and severally held and firmly bound unto A. B., an infant, of the of , in the county of , and State aforesaid. Sealed with our seals, and dated the day of , in the year 19 — } The condition of the above obligation is as follows : That whereas, the said M. N., has been appointed by the Court [or by Hon. A. O. justice of the Court], by order, dated , 19 — , as guardian ad litem of the said A. B., an infant, defendant in an action pending in the Court between C. D., plaintiff, and said A. B. and others, de- fendants ; and whereas, the said M. N. is about to receive, as ' For general provisions as to bonds and undertakings required by the Code of Civil Procedure, see sections 810 to 816 of that act. 58 BRADBURY'S LANSING'S FORMS AND PRACTICE. Guardian ad Litem for Plaintiff or Defendant. such guardian, money to the amount of dollars [or property to the value of ] : Now, therefore, if the said M. N. shall duly account for and apply the said money [or property], when received by him, under the direction of the court, then this obligation to be void ; otherwise to be and remain in full force and virtue. M. N. [l. S.J P. Q. [l. s.] E. S. [l. s.] Sealed and delivered in presence of State of New Toek, County, ss. : On the day of , 19 — , before me person- ally came M. IST., P. Q. and E. S., to me known to be the in- dividuals described in and who executed the foregoing bond and to me severally acknowledged that they executed the same. I. J., Notary Public. State of New Toek, ) County, j P. Q. and E. S., sureties in the foregoing bond, being sev- erally duly sworn, the said P. Q., says that he is a resident of and a. householder [or a freeholder] within this State, and is worth the sum of dollars, over and above all the debts and liabilities which he owes or has incurred, and ex- clusive of property exempt by law from levy and sale under an execution ; and the said E. S. says that he is a resident of and householder [or a freeholder] within this State, and is worth the sura of dollars, over and above all the debts and Habihties which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an ex- ecution. P. Q. E. S. PllOCEEDINGS BEFORE ACTION. 59 Guardian ad Litem for Plaintiff or Defendant. Sworn to etc. I hereby approve of the foregoing bond, as to its form and manner of execution, and of the sufficiency of the sureties therein mentioned. Dated , 19 — . A. O., Judge of Court. \0r Cownty Judge J] CHAPTER II. JUDGMENtS WITHOUT PEOOESS.* Article I. Confession op judgment. II. Submission of controversy on admitted facts. I. CONFESSION OF JUDGMENT. FORMS. no. page. 44. Statement on confession of judgment 64. 45. Verificatiou 69. 46. Judgment, entered by confession 70. 47. Bill of costs 71. 1. The Code changed the common-law rule regarding the statement which it is necessary to file in confessing a judgment, if the interests of other judgment creditors or of purchasers are involved. Under the common law a mere consent to the entry of judgment was sufficient. Neusbaum v. KeiTn, 24 N. Y. 325. This is so yet as to the judgment debtor, but where the in- terests of other judgment creditors or purchasers are concerned the confession " must state concisely the facts, out of which the debt arose ; and must show, that the sum confessed there- for is justly due, or to become due." Code Civ. Pro. § 1274 ; St. John Woodworking Co. v. Smith, 82 App. Div. 348 ; 82 Supp. 1025 ; Neusbaum v. Keim, 24 K Y. 325. " It was an ancient and well settled practice of the courts to allow judgments to be recovered by confession, either without action or pending an action. Such judgments rested, as they do still, upon the simplest of all foundations — that of consent ; ' For reference of claim against estate of deceased person see " Surro- gates' Courts." [60] JUDGMENTS WITHOUT PROCESS. 61 Confession of Judgment. and the consent Avas enough without a special and particular statement of the cause or consideration of the debt. This was so even as to other creditors and purchasers until the Legisla- ture of this State, in 1818, enacted a statute on the subject. The practice was considered liable to abuse, affecting the rights of other parties. The statute, therefore, provided that from thenceforth, in all judgments by confession without suit, the plaintiff should file with the record a particular statement of his debt, and if this was omitted such judgments were to be deemed fraudulent as to other hona fide judgment creditors ; and as to iona fide purchasers for valuable consideration of any lands bound or affected by said judgments." Neusbaum V. Keitn, 24 N. T. 325 ; St. John Woodworking Co. v. Smith, 82 App. Div. 348 ; 82 Supp. 1025. 2. Who may confess judgment ^An executor or admin- istrator may do so. Laxorence v. Bush, 3 "Wend. 305 ; Bug- gies V. Sherman, 14 Johns. 446. A public officer for amount due by him as such, but not so as to bind supervisors of county. Gere v. Supervisors of Cayuga Co., T How. Pr. 265. But a trustee cannot so as to bind the trust estate. Mallory v. Clarh, 20 How. Pr. 418 ; 9 Abb. Pr. 358 ; Marks v. Bey- nolds, 12 Abb. Pr. 403 ; rev'g 20 How. Pr. 338. Nor can an infant. Bennett v. Davis, 6 Cow. 393 ; B Amoureux v. Crosby, 2 Paige, 422. Nor a person of unsound mind. Berson v. Warren, 14 Barb. 488. A prisoner while in confinement can- not. Dole V. Moulton, 1 Johns. Cas. 129 ; but a person under arrest may if entirely voluntary. Smith v. Storm, 1 Wend. 37. 3. Joint debtors ; confession by one. — One or more joint debtors may confess a judgment for a joint debt, due or to be- come due. When all the joint debtors do not unite in the confession the judgment must be entered and enforced against those only who confessed it ; and is not a bar to an action against all the joint debtors, upon the same demand. Code Civ. Bra. § 1278. Harbeok v. Bupin, 55 Hun, 335 ; 8 Supp. 62 Bradbury's Lansing's forms and practice. Confession of Judgment. 695 ; Tripp v. Saunders, 59 How. Pr. 379. Prior to the Code a joint judgment by confession of one effected a merger and no action would lie against those not confessing. Oandee v. Smith, 93 N". Y. 349. 4. What claims thus secured. — Almost any contract claim may be reduced to judgment by confession, including a claim not yet due and a contingent liability. Truseott v. King, 6 E". Y. 14:1 ; rev'g 6 Barb. 346 ; Healey v. Preston, 14 How. Pr. 20 ; Dow v. Platner, 16 IST. Y. 562 ; Cooh v. Whipple, 55 ISr. Y. 150 ; Carey v. anamt, 59 Barb. 574 ; St. John Wood- worUng Co. v. Smith, 82 App. Div. 348 ; 82 Supp. 1025 ; Code Civ. Fro. §1274. 6. Tort. — Judgment for a tort cannot be entered on a con- fession. Burkman v. Van Saun, 14 Abb. Pr. (N. S.) 163 ; Boutel V. Owens, 2 Sandf. 655. 6. Insufficient statements,' see Bradley v. Glass, 20 App. Div. 200 ; 46 Supp. 790 ; Wood v. Mitchell, 117 JST. Y. 439 ; Citizens Nat. BTc. v. Allison, 37 Hun, 135 ; Flour City Nat. Bh. V. Doty, 41 Hun, 76 ; Frost v. Kaon, 30 ^. Y. 428 ; Bun- ham V. Waterman, 17 JST. Y. 9 ; Murray v. Judson, 9 N. Y. 73 ; Chappel v. Chappel, 12 IST. Y. 215 ; FreUgh v. BrinJc, 22 ]Sr. Y. 418 ; Wood v. Mitchell, 117 N. Y. 439 ; rev'g 53 Hun, 451 ; 6 Supp. 232. 7. Promissory note. — ^Merely setting forth a promissory note in the statement is insufficient ; the consideration for the note must be given. Chappel v. Chappel, 12 N. Y. 215. But see Mather v. Mather, 38 App. Div. 32 ; 55 Supp. 973 ; rev'g 25 Misc. 51 ; 53 Supp. 999. 8. Amendment. — A judgment by confession may be amended even though the amendment should deprive sub- sequent judgment creditors of rights which would otherwise ' For sufficient statements see forms and notes jsost. JUDGMENTS WITHOUT PROCESS. 63 Confession of Judgment. be theirs. Nat. Park BTc. v. Salomon, 23 St. R. 560 ; 17 Civ. Pro. E. 8 ; Union BajiTcY. Bush, 36 N. Y. 631 ; Mitchell v. Van Buren, 27 JST. Y. 300 ; Bradley v. Glass, 20 App. Div. 200 ; 46 Supp. 790. But the court may impose terms as a condition for allowing the amendment that the lien thereof shall be postponed in favor of another judgment. Symson v. Selheimer, 105 N. Y. 660. 9. Fraudulent grantees of the property of the judgment debtor in a judgment entered by confession, cannot question the validity of the judgment on the ground that the state- ment does not state " the facts out of which the debt arose." Carpenter v. Osborn, 102 N. Y. 552 ; St. John Woodworking Co. V. Smith, 82 App. Div. 348 ; 82 Supp. 1025. 10. Enforcing. — A judgment by confession may be en- forced in the same manner as all other judgments in the court in which it is entered. Code Civ. Pro. § 1276. 11. How attacked. — A confessed judgment may be at- tacked on account of a defective statement by a junior judg- ment creditor or by a hona fide purchaser of real estate, attach- ment creditor or other party with a lien on the property affected by the judgment, on motion. Mather v. Mather, 38 App. Div. 32 ; 55 Supp. 973 ; Chappel v. Chappel, 12 N. Y. 215 ; Flour City Nat. Bk. v. Doty, 41 Hun, 76 ; Pwight v. St. John, 25 N. Y. 203 ; Kendall v. Bodkins, 7 Abb. Pr. 309 ; Baly V. Matthews, 20 How. Pr. 267 ; Miller v. Earl, 24 K. Y. 110 ; Jacdbstein v. Ahrams, 41 How. Pr. 272. 64 Bradbury's Lansing's forms and practice. Confession of Judgment. Form No. 44. Statement on Confession of Judgment Without Action. (Code Civ. Pro. § 1274.) Court — Codntt of . A. B., Plaintiff, agst. CD., Defendant. I [cjr we], C. D. [and E. F.], of , do hereby confess judgment in this court in favor of A. B., for the sum of dollars and cents, and hereby authorize said A. B., his heirs, executors, administrators or assigns, to enter judg- ment therefor against me [or us]. This confession of judgment is [ * ] for a debt or liability justly due [or to become due], arising out of the following facts [state facts]. [Or as above to (*), and from thence as follows : For the purpose of securing the plaintiff, A. B., against a contingent liability, the following being a statement of the facts constitut- ing such liability {here insert concise statement of such facts, and show that the sum confessed therefor does not exceed the amount of the liability). Loan. " Prior to and on the 1st day of December, 1890, the above named plaintiffs, as such executor and executrix, respectively, had on deposit as a loan and advance with the said defend- ants and Julius P. Baumann, who together constituted the firm of Ballin Bros., doing business in the City of New York, the sum of thirty thousand dollars ; that the said defendants, as such copartners, together with said Julius P. Baumann, agreed to pay $5,000 during the year 1891 and $5,000 dur- ing every year thereafter until the whole sum should be fully paid ; also agreed to pay interest thereon at the rate of six per cent ; that since said date the said defendants have paid to the plaintiffs $20,000 on account of the said sum of $30,000 JUDGMENTS WITHOUT PROCESS. 65 Confession of Judgment. in various installments, and also the interest thereon to JSTo- vember 1, 1896, leaving due and owing on the 1st day of No- vember, 1896, by the said defendants, as such copartners, to the said plaintiiJs, the said sum of ten thousand dollars, with in- terest from November 1, 1896, the whole of which is now justly due and owing, with interest as aforesaid, and which amounts together to the sum of ten thousand and sixteen 67/100 dol- lars, the payment of which latter sum has been duly demanded by the plaintiffs from the defendants, but no part of which has been paid." (From Fuller v. Straus, 44 App. Div. 353 ; 60 Supp. 917.) Promissory note to secure loa/n} " This confession of judgment is for a debt or liability justly due and to become due to the said plaintiff from me, W. A. Mather, arising from the following facts, viz : The defendant has from time to time borrowed of the plaintiff money, and there is now due and to become due to this plaintiff from the defendant aforesaid the sum of forty -two hundred dollars ($4,200), for cash borrowed and interest thereon, for which plaintiff holds two promissory notes of this defendant, copies of which are hereunto set forth, viz : "Sloatsbuegh, K Y., April 1, 1897. " One year after date, I promise to pay to Mrs. Mary Jane Mather twenty-six hundred dollars, with interest. Value re- ceived. "W. A. Mathek." "Sloatsbuegh, N. Y., April 1, 1898. " One year after date, I promise to pay to Mrs. Mary Jane Mather sixteen hundred dollars. Value received. "W. A. Mathek." 1 The following statement was held not good in TT^ood v. Mitchell, 117 N. Y. 439. it is similar to the one in the text held to be good: "This confession of judgment is for a debt now justly due to the said plaintiff from me arising from the following facts, viz.: The said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1, 1886, to date and includes interest upon such loans and advances to this date." Vol. 1—5 66 bhadbury's Lansing's forms and practice. Confession of Judgment. (From Mather v. Mather, 38 App. Div. 32 ; 55 Supp. 973 ; rev'g 25 Misc. 51 ; 53 Supp. 999.) Account stated. "The plaintiffs loaned and advanced to me divers and sundry- sums of money which I agreed to repay them with interest, and also did and performed work, labor and services for me in selling merchandise for me upon commission and guar- anteeing the accounts of the same ; on October 1, 1895, I had an adjustment of accounts with said copartnership concerning all the said matters, whereby it was found that I was justly indebted to them in the sum of $19,879.02, which sum they thereupon demanded from me, and which amount I agreed to pay to them; no part, however, of said sum has been paid, and there is still due and owing to them from me the full and true sura of $19,879.02, with interest thereon from October 1, 1895." (From Critten v. Vrederiburgh, 151 N. Y. 536.) Borrowed money and purchase of horse. " This confession of judgment is for a debt justly due to the plaintiff, arising from the following facts : The defendant at different times borrowed of the plaintiff divers sums of money, and also purchased of the plaintiff horses ; and on an accounting of their dealings together this day, there was found to be due from the defendant to the plaintiff the sum of two thousand two hundred and ninety-eight dollars, and for which amount this confession is made." (From Broistedt v. Breslin, 105 N. T. 682.) Ooods sold. "The following is a statement of facts upon which said confession of judgment is founded :that said Gibbons was for a long time absent from the State of Kew York, and engaged in the occupation of mining in the State of California and ter- ritory thereto adjoining ; that during his said absence, and prior to his leaving said Brockport for said California, he has JUDGMENTS WITHOUT PROCESS. 67 Confession of Judgment. and had obtained groceries, provisions, crockery, money, flour, etc., to the amount of $1,109.41, including interest of John Owens, who has duly assigned the same to said Harrison ; that since his return to said Brockport he has incurred a debt to said Harrison amounting to the sum of $92.28, being for gro- ceries, provisions furnished by said Harrison for the use of his family ; that there is now justly due and owing said Harri- son, over and above all effects and payments, the sum of $1,20T.69. (From Harrison v. Gibbons, Yl IST Y. 58.) Sale of boats. " I, Mcholas Elmendorf, the defendant, hereby confess my- self indebted to Marius Schoonmaker, plaintiff, in the sum of $17,931, and hereby authorize the said plaintiff and his ex- ecutors, administrators, attorneys or assigns, to enter a judg- ment against me for that amount. The above indebtedness arose on the sale and conveyance by the plaintiff to the de- fendant, of his right and interest in the boats, property and effects of William Hasten & Co., in January, 1854: and I hereby state that the sum above, by me confessed, is justly due to the said Marius Schoonmaker, plaintiff, without any fraud whatever. Dated the 30th day of March, 1855." (From Thompson v. Vam. Vechten, 27 IST. Y. 568.) Borrowed money, notes, amd contingent liability. " The defendant has, from time to time, borrowed of the plaintiff money, and there is now due to the plaintiff from the defendant, the sum of $1,500, for cash borrowed, for which the plaintiff holds the note of defendant, bearing date the 12th day of November, 1850, and payable six months after date. The plaintiff has assumed for the defendant the payment of the sum of $2,000, for which the defendant has given to the [)laintiff two notes, made by said defendant, of $1,000 each ; one payable in sixty days from the 12th of November afore- said, and the other in ninety days from said date." (From Ely v. Oooke, 28 N. Y. 365.) 68 Bradbury's Lansing's forms and practice. Confession of Judgment. Promissory note and costs of suit. "James D. Brink and l^oah Snyder, defendants, hereby confess themselves indebted to Yalentine Freligh, plaintiff, in the sum of eight hundred and sixty-two dollars and forty- eight cents, and hereby authorize him, or his executors, ad- ministrators, attorneys or assigns, to enter a judgment against us for that amount. The above indebtedness arose on a promissory note, made by the defendants to the plaintiff, dated June 21, 1854, in the sum of seven hundred dollars, with in- terest, that amount of money being had by the defendants of the plaintiff, and upon which there is this day due the sum of seven hundred and eighty-two dollars and forty-seven cents, together with eighty dollars and forty-one cents now due the plaintiff from the defendants, as costs in an action brought against the defendants by the plaintiff, on said promissory note, in Supreme Court, which suit is now discontinued by the plaintiff, upon this confession of judgment to him by the de- fendants. And we hereby state that the sum hereby by us confessed is justly due to the said plaintiff without any fraud whatever. Dated the 24th day of February, 1857." (From Freligh v. BrinTc, 22 E". Y. 41Y.) Promissory notes for horrowed money and contvngent liability. "I do hereby confess judgment in this cause in favor of Daniel Lanning for the sum of one thousand four hun- dred and fifty dollars, and authorize judgment to be entered therefor against me. This confession of judgment is for indebtedness from me to the said Lanning, arising out of the following facts, viz. : On one promissory note given by me to the said Lanning on the 8th day of December, 1854, for one hundred dollars borrowed money on which is indorsed eleven dollars and sixty cents, said note due when given. Also, one promissory note of three hundred and forty dollars made by me and dated Oct. 17th, 1854, due when given, and now owned by said Lanning, the same being given for borrowed JUDGMENTS WITHOUT PROCESS. 69 Confession of Judgment. money. Also, for the said Lanning assuming the payment of the sum of one thousand dollars at the Bank of Havana on the 14th day of July, 1855, by which a note of one thousand dol- lars, made by me payable to the order of Samuel Carpenter at the said Havana Bank, dated on the 31st day of May, 1855, and indorsed by the said Samuel Carpenter and D. J. Sunderlin was paid and taken up. Dated July 14th, 1855." (From Lanning v. Carpenter, 20 IST. Y. 447.) Goods fv/rnished, advances and loans. " I do hereby confess judgment in this action in favor of Embree Hill for the sum of eight thousand dollars, and au- thorize judgment to be entered therefor against me. This confession of judgment is for a debt justly incurred and now due to the plaintiff, arising upon the following facts : That at the time I began business as a producer of milk and farmer the plaintiff furnished me with cows, horses, wagons and other articles, and utensils required in the business, and hired a farm for me, paying the rent therefor, and has since that time ad- vanced me moneys to enable me to conduct said business and to support my family, down to the present time, which said money so advanced and the horses, cattle, wagons and utensils furnished as aforesaid, were worth upwards of eight thousand dollars." (From Weil v. Hill, Yl Hun, 133.) C. D., Defendant. Form No. 45. Verification. State of New York ) . County of j C. D., being duly sv7orn, says, that he is the defendant above named, and that the matters of facts set forth in the above statement are true.' [Sworn to, etc.] C. D. • Verification should be in positive terms not on information and belief as to such facts as are within the knowledge of the judgment debtor. In- gram V. Bobbins, 33 N. Y. 409; Mosher v. Heydrick, 45 Barb. 649. 70 Bradbury's Lansing's forms and practice. Confession of Judgment. Form No. 46. Judgment Entered by Confession. (Code Civ. Pro. § 1275.) COUET.' A. B., Plaintiff, agst. C. D., Defendant. Judgment of the day of , 19 — . On filing the within [or annexed] statement, made by 0. D., and on motion of M. N., attorney for plaintiff, it is adjudged that A. B., the above named plaintiff, recover from the said C. D., defendant, dollars and cents, and dollars and cents costs and disbursements, amounting in all to the sum of dollars and cents, and that the plaintiff have execution therefor. J. L., Cleric. ' If the statement is filed with the county clerk, the judgment must be entered in the Supreme Court; if it is filed with the clerk of another court, specified in § 1275, Code Civ. Pro., the judgment must be entered in the court of which he is clerk. Code Civ. Pro. § 1275. JUDGMENTS WITHOUT PROCESS. 71 Confession of Judgment. Form ]Vo. 47. Bill of Costs on Entry of Judgment by Confession. (Code Civ. Pro. § 1275.) Supreme Couet [or othee Couet].^ A. B., Plaintiff, agst. CD., Defendant. Costs allowed by Code Civil Procedure, section, 12T5, f 15 00 Clerk's fees entering judgment, .... 50 Clerk's fees, transcripts and filing, Affidavits, Sheriff's fees receiving and returning execution, 62 Postage, County, ss. : M. N., of , being duly sworn, says, that he is the attorney for the plaintiff above named ; that the disbursements above mentioned have been or will be necessarily made or in- curred in this action, to the deponent's knowledge or belief. M. N. [Sworn to, etc.] ' See note to last form. 72 Bradbury's Lansing's forms and practice. Submission of Controversy on Admitted Facts. II. SUBMISSION OF CONTKOVERSY ON ADMITTED FACTS. FORMS. NO. PAGE. 48. Statement on submission of controversy 76. 49. Verification of submission 78. 50. Judgment on submission 78. 51. Money judgment 79. 1. Jurisdiction. — Under the various amendments to the Code of Civil Procedure relative to the jurisdiction of courts in New York, the Appellate Division of the Supreme Court is the only tribunal at the present time which has jurisdiction of a submission of a controversy. Code Civ. Pro. § 1279, et seq. 2 . In making up a case to be submitted to the Appellate Division, the provisions of Eule 41 of the General Rules of Practice must be observed. The case must be printed in the same manner as ai'e cases on appeal and a printed copy must be filed with the clerk within twenty days after the original submission is filed. By this rule it is made the duty of the plaintiff to see that the papers are properly filed. 3. Facts admitted without reservation. — All the admis- sions and statements of fact in a case submitting a controversy must be without reservation^ and must have the same effect, as admissions, that the same statements would have if con- tained in a pleading, or the submission will be dismissed. Chicago, etc., R. Co. v. Central Trust Co., 41 App. Div. 495 ; 58 Supp. 809. 4. The defendant practically demurs to the complaint as stated in the submission and admits the facts as alleged, but denies that the plaintiff is entitled to any relief against him. Kingsland v. Mayor, etc., 52 Hun, 98 ; Victor v. Halstead, 38 St. R. 407. 1 The submission in this case was dismissed because it contained the fol- lowing paragraph : " None of the admissions herein contained are in any wise to affect either party or to be regarded as made, except for the purpose of this submission of this controversy upon the foregoing statement." JUDGMENTS WITHOUT PROCESS. 73 Submission of Controversy on Admitted Facts. 5. Stipulation as to facts A record purporting to be a submission of a controversy on an agreed statement of fact which does not contain a stipulation between the parties, con- taining a statement of the facts which have been agreed upon, is fatally defective, and the defect is not cured by a memoran- dum opposite the title to the effect that the record is a case agreed upon in a controversy submitted without action. Se- gen v. Curtis, 81 App. Div. 91 ; 80 Supp. 929. 6. Parties. — The full names of all the parties to the con- troversy must be set. forth, as there can be no judgment en- tered against an undisclosed party. Dickinson v. DioJcey, 76 N. Y. 602; Union Nat. BTc. v. Kiopper, 63 N. Y. 617. If the necessary parties do not join in the submission so that a com plete determination of the controversy may be made, par- ticularly where the title to real estate is in question, the sub- mission will be dismissed. Schreyer v. Arendt, 83 App. Div. 835 ; 82 Supp. 122. New parties cannot be brought in with- out their consent and without joining in the submission. Ken- nedy v. Mayor, etc., 79 N. Y. 361. 7 . Verification by attorney. — The affidavit required must be made by one of the parties and not by the attorney, and in default of such an affidavit the submission will be dismissed. Bloomfield v. Ketoham, 95 IST. Y. 658. 8. A public officer has no power without express statutory authority to agree upon a submission which will bind the municipality. City of Buffalo v. Mackay, 15 Hun, 204 ; Town of Salamanca v. County of Cataraugus, 81 Hun, 282 ; 30 Supp. 790 ; Berlin Iron Bridge Go. v. Wargen, 32 St. R. 119. 9. Attorney-General. — By Chapter 179 of the Laws of 1904, the Executive Law was amended by adding a new sub- division to Section 552 thereof, providing that the Attorney- General might, on behalf of the State, agree upon a case con- 74 Bradbury's Lansing's forms and practice. Submission of Controversy on Admitted Facts. taining a statement of the facts and submit a controversy for decision to a court of record, which would have jurisdiction by an action brought on the same cause pursuant to the pro- visions of the Code of Civil Procedure. 10. Infants. — Neither an infant nor hig guardian can agree to a submission under this statute. Lathers v. Fish, 4 Lans. 213 ; Fisher v. Stissol, 9. Abb. Pr. 11. Partners. — One partner cannot agree to a submission so as to bind his copartner. McJBride v. Hagan, 1 Wend. 326 ; Harrington v. Higham, 13 Barb. 660. 12. Facts; what considered. — No inferences whatever can be drawn as to the facts upon the submission of a controversy, but the court can only apply the law to the facts as stated in the submission. American Box Machine Co. v. Zentgraf, 45 App. Div. 522 ; 61 Supp. 417 ; Fearing v. Irwin, 55 N. Y. 486 ; Tanenlaum v. Simon, 71 App. Div. 611 ; 75 Supp. 922. The court can only consider the facts as set forth in the sub- missions in determining the relief to be granted. ZarJcowsM M. Sohroeder, 60 App. Div. 457; 69 Supp. 893. Where a real estate title is in controversy the court cannot go beyond the facts stated in the submission to determine the bounds of the property. Kelly v. Kelly, 72 App. Div. 487 ; 76 Supp. 558. 13. An abstract question of law cannot be determined by the court but there must be an actual controversy and the court empowered to enter judgment for or against either of the parties. Troy Waste Mfg. Go. v. Harrison, 73 Hun, 528 ; 26 Supp. 109 ; Clapp\. Guy, 31 App. Div. 535 ; 52 Supp. 33 ; Bloornfield v. Ketcham, 95 N. Y. 657 ; People v. Mutual, etc., Asso., 92 N. Y. 622. 14. Formulated questions cannot be determined by the court on the submission of a controversy, and if the court is not authorized to enter judgment for or against the parties for JUDGMENTS WITHOUT PROCESS. 75 Submission of Controversy on Admitted Facts. a particular relief by the submission itself, it must be dis- missed. Marshall v. Hayward, 67 App. Div. 137 ; 73 Supp. 592. 15. Dismissing sabmission.^ — Before the court can be called upon to decide the questions presented upon a submis- sion, there must be a statement of a controversy actually existing between the parties, upon the determination of which a judgment, that the court has jurisdiction to make in an ac- tion brought to determine such a controversy, can be granted. Kelley V. Hogan, 69 App. Div. 251 ; 71 Supp. 682. 16. Tlie relief to be granted may be limited by the sub- mission itself, and in such case the court cannot allow any greater relief than is stipulated in the submission. Kingsland V. Mayor, etc., 12 Ilun, 599. (See same case, 52 Hun, 98.) 17. Temporary injunction. — Prior to the amendment to Section 1281 of the Code of Civil Procedure in 1899, no kind of an injunction could be granted upon the submission of a controversy. By reason of that amendment, however (Z. 1899, c. 526), the inhibition as to injunction applies only to a tem- porary injunction and, therefore, the judgment may, in a proper case, award a permanent injunction. Associate Alumni, etc. V. General Theological 8emina/ry, 163 N. Y. 417. 18. A decree of specific performance may be made upon the submission of a controversy. Associate Alumni, etc. v. General Theological Seminary, 163 N. T. 417. 19. Dower. — An action for dower may be determined under a submission. Lee v. Tower, 124 IST. T. 370. 20. Same attorneys for both parties. — Where the state- • In this case the submission was dismissed without costs, but there is a short concurring opinion by Van Brunt, P. J., in which he advises dismissing the submission with costs against the plaintiff. The Code, however, pro- vides that if the facts contained in the case are not sufficient to enable the court to render judgment "an order must be made dismissing the sub- mission without costs to either party." Code Civ. Pro. § 1281. 76 Bradbury's lansing's forms and practice. Submission of Controversy on Admitted Facts. merits of facts and the briefs of the respective parties were all prepared by the same attorney the controversy is not of the independent character contemplated by the Code and should be dismissed. Wood v. Neshitt, 19 Supp. 423, dismissing 62 Hun, 445 ; 16 Supp. 918. 21. Pending action. — Where a submission is made pending an action upon the same controversy the submission suspends the action and when judgment is entered discontinues the ac- tion. Van Sickle v. Van Sickle, 8 How. Pr. 265. 22. Costs. — While in a submission of a controversy the award of costs is discretionary wit,h the court, either party may waive his right to have the court exercise its discretion in his favor, and when it is stipulated that the judgment shall be rendered without costs, a judgment with costs should be modified by striking them out. Beal Estate Corporation v. Harper, 174 N. Y. 123 ; modifying 70 App. Div. 64 ; 74 Supp. 1065. 23. An extra allowance, as for the trial of a difficult and extraordinary case, cannot be allowed on a submission oi' a controversy, as such an allowance can only be made in an ac- tion begun in the ordinary way. People v. Fitohhurg R. Co., 133 K Y. 239. Form No. 48. Statement on Submission of Controversy. (Code Civ. Pro. §§ 1279-1281 ; Rule 41, Supreme Court Rules.) New York Supreme Couet, Appellate Division ■ Department. A. B., Plaintiff agst. CD., Defendant. We, the undersigned, being all the parties, to this action, de- JUDGMENTS WITHOUT PROCESS. 77 Submission of Controversy on Admitted Facts. siring to submit the question in controversy between us pur- suant to Sections 1279 to 1281 inclusive, of the Code of Civil Procedure, do hereby agree upon and do hereby make, exe- cute and acknowledge the following statement of facts of the controversy between us viz : (Here state substantially in the form of a complaint, hut omitting the preliminary statem,ent, " the plaintiff complains^'' etc., and also all such expressions as " allege," or any of its synonyms. Also avoid all reser- vations as to the facts or the submission will be dismissed. The submission should not be made unless all parties are will- ing to admit, for all purposes, the truth of the facts stated therein.') The parties hereto waive costs as against each other. (This may be done if desired y otherwise the costs are in the discretion of the court.) The plaintiff demands judgment (stating it with all the par- ticularity of a complaint). The defendant demands judgment (stating it with all the particularity of an answer, or for affirmative relief). If the controversy is determined in favor of the plaintiff it is agreed that the following relief only shall be granted (state limited relief as agreed upo7i). If the controversy is determined in favor of the defendant it is agreed that the following relief only shall be granted (state it). (Signatures of all parties.) (Add acknowledgments by all pa/rties as in form for a deed.) 78 Bradbury's Lansing's forms and practice. Submission of Controversy on Admitted Facts. Form No. 49. Verification of Submission. (Code Civ. Pro. § 1279.) State of New Yoek County of ^ A. B., and C. D} being duly severally sworn, says each for himself, that the controversy mentioned and set forth in the foregoing case is real and this submission is made in good faith to determine the rights of the parties. A. B. Sworn to, etc. C. D. Form No. 50. Judgment on Submission.' (Code Civ. Pro. § 1281.) At a stated term of the Appellate Division of the New York Supreme Court, held in and for the Judicial Department thereof, at the Courthouse in the day of , 19 — . Present, Hon. E. F., P. J., HONS. G. H., ETC., JJ. A. B., Plaintiff, agst. CD., Defendant. The parties hereto having submitted a controversy herein, ' The Code (§ 1279) requires the affidavit of only one of the parties but it is good practice to require them all to join in the verification. The attorney is not allowed to make the verification. Bloomfield v. Ketcham, 95 N. Y. 658. 'It would seem from the language of Code Civ. Pro. § 1281, that the JUDGMENTS WITHOUT PROCESS. 79 Submission of Controversy on Admitted Facts. pursuant to Section 1279 of the Code of Civil Procedure, by an agreed statement of facts contained in a case duly executed and verified on the day of - — , 19 — , in con- formity with law, and said case having been duly filed in the oflBce of the clerk of this court on the day of , 19 — , and argument thereon having been heard and said case been duly tried, on the ■ day of , 19^ — , (*) now, after hearing E. M., of counsel for the plaintiil and C. G-., of counsel for the defendant and due deliberation having been had, it is, on motion of , counsel for the , Oedeeed, adjudged and deceeed that {State relief granted.) FormlVo. 51. Money Judgment on Submission of Controversy.' (Code. Civ. Pro. § 1281.) New York Supeeme Couet. Appellate Division Judicial Dbpaetmbnt. A. B., Plaintiff, agst. C. D., Defendant. As inform Wo. 50 to (*) thence as follows : And an order of the Appellate Division of the New York Supreme Court, Judicial Department, having been judgment should in all cases be entered directly in the Appellate Division of the Supreme Court, as the statute reads: "If the action is in the Su- preme Court it m.ust be tried and judgment rendered in the Appellate Division thereof." If a mere money judgment the proper practice would seem to be analogous to that in ordinary judgments, by entering an order upon which the clerk enters judgment. Where, however, it is in the nature of an equity decree it should be signed by the presiding justice, with a direction to the clerk to enter it. ' See note to Form No. 50. 80 Bradbury's Lansing's forms and practice. Submission of Controversy on Admitted Facts. i::ade and entered herein, on the day of , 19 — , that the hare judgment as herein adjudged ; Now, therefore, it is hereby adjudged that A. B., the plain- tiff {or C. D., the defendant) recovers of the defendant {or vice versa) the sum of dollars, damages, and the sum of dollars, costs, as taxed, making in all the sum of dollars, and that the plaintiff {or defendant) have execution therefor. CHAPTER III. THE SUMMONS AND THE SERVICE THEREOF. Akticle I. When an action or a special phocebding is deemed COMMENCED. II. Contents and forms op summonses and notices attached thereto. III. Where a summons may be served personally — terri- torial limitation. IV. By whom, when and how, a summons may be served — Forms and practice. I. WHEN AN ACTION OR A SPECIAL PROCEEDING IS DEEMED COMMENCED. 1. The original process by which a defendant is brought into court in a civil action at law, is usually a summons. While this is deemed the mandate of the court {Code -Civ. Pro. § 418), it is issued in New York, and many other Code States, in courts of record, by the attorney for the plain- tiff, without other authority than that which he derives from his admission to the bar. In the United States courts, how- ever, the summons is issued by the clerk, and must be under the seal of the court. U. 8. Rev. Stat. § 911; 1 U. S. Comp. Stat. p. 683 ; Brown v. Pond, 5 Fed. Rep. 37. It is also is- sued by the clerk in the Municipal Court of the City of New York. Municipal Court Act, § 27. 2. In equity in the Federal courts, and in those States where the legal and equitable forms of actions have not been amalga- mated, a suit in equity is still begun, or the defendant is brought into court, by writ of subpoena, which is issued by the clerk, upon the filing of a bill or petition. Rule 12, Equity Rules U. S. Courts. In the U. S. Supreme Court the Vol. 1—6 ' [81] 82 Bradbury's Lansing's forms and practice. When an Action or a Special Proceeding is Deemed Commenced. summons is tested in the name of the President. Rule 5, U. S. Supreme Court Rules. 3. Under the common law actions are deemed to be com- menced when the writ is issued and it is in good faith mailed to the sheriff, or placed in his hands, for the purposes of service. Gough v. McFall, 31 App. Div. 578; 52 Supp. 221; Burdick v. Green, 18 Johns. 14; Visscher v. Gansevoort, 18 Johns. 496; Lowry v. Lawrence, 1 Caines, 68; Jackson v. Brooks, 14 Wend. 649. 4. Under the Code, " A cml action is commenced by the service of a summons. But from the time of the granting of provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, juris- diction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy." Code Civ. Pro. §416. 5. A voluntary general appearance of the defendant is equivalent to a personal service of the summons upon him. Code Civ. Pro. § 424. 6. A special proceeding is begun by service of process or other paper in the same way that a summons is served. Code Civ. Pro. § 433. 7. Where a warrant of attachment is granted before the summons is served, "personal service of the summons must be made upon the defendant against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State, pursuant to an THE SUMMONS AND THE SERVICE THEREOF. 83 When an Action or a Special Proceeding is Deemed Commenced. order obtained therefdr, as prescribed in this act; and if pub- lication has been or is thereafter commenced, the service must be made complete, by the continuance thereof." Code Civ. Pro. § 638. This section applies to all courts having au- thority to issue attachments. Allen v. Meyer, 73 N. Y. 1. Failure to serve or begin the publication of the summons within thirty days after an attachment has been granted divests the court of jurisdiction and acts done thereunder are trespasses. Ruser v. Union Distilling Co., 4 Misc. 268; 24 Supp. 101; aff'd 7 Misc. 396; 27 Supp. 920. Where juris- diction is acquired by a valid levy upon property of a non- resident defendant, and the defendant dies after the publica- tion of the summons is duly commenced, but before it is completed, the court loses jurisdiction over the property levied upon. Barron v. South Brooklyn Saw Mill Co., 18 Abb. N. C. 352; Ludwig v. Blum, 18 Supp. 69. But under the old Code it was held that the court had jurisdiction and control of the proceedings for the purpose of reviving the action in the name of the representatives of a deceased party. More v. Thayer, 6 How. Pr. 47; 10 Barb. 258; Buckhardt v. Sandford, 7 How. Pr. 329; Matter of Griswold, 13 Barb. 412. A summons may be considered as issued if made out and placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served. Mills v. Corbett, 8 How. Pr. 500; Wallace & Sons v. Castle, 68 N. Y. 370; Stevens v. Middleton, 26 Him, 470; Pickhardt v. Kuttroff, 27 Hun, 269; Stoiber v. Thudium, 44 Hun, 70. 8. An order of arrest may be granted before the summons is actually served, but the summons must accompany the application for such an order. Code Civ. Pro. § 558. 9. An injunction order may be granted to accompany the summons. Code Civ. Pro. § 608. 10. Limitation; joint defendants. — "An action is com- 84 beadbury's Lansing's forms and practice. When an Action or a Special Proceeding is Deemed Commenced. menced against a defendant within the meaning of any provision of this act, which limits the time for commencing the action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest." Code. Civ. Pro. § 398. But they must all be made parties in the same suit in which the summons is delivered to the sheriff before the statute has rim. Shaw v. Cock, 12 Hun, 173; aff'd 78 N. Y. 194. An action against one joint debtor alone will not stop the running of the statute against another. Merritt v. Scott, 3 Hun, 657; s. c, Merritt v. Sawyer, 3 T. & C. 160. And where one is sued originally, and the summons is amended by adding another defendant after the statute has run against him, he can successfully set up the statute as a defense. Merritt v. Scott, 3 Hun, 657. Partners who sign a firm note are joint contractors within this section. Howell V. Dimock, 15 App. Div. 102; 44 Supp. 271. Partners gen- erally are joint contractors within this section. Bennett v. Watson, 21 App. Div. 409; 47 Supp. 569. 11. The same ; attempt to commence action. — ^Placing the summons in the hands of the sheriff for service is equivalent to the commencement of the action, within the meaning of the statute of limitations, if so delivered with intent that it shall be actually served on the defendant and it is so served "within sixty days after the expiration of the time limited for the actual commencement of the action," or the first publication thereof is made, pursuant to an order for service by publica- tion within that time. Code Civ. Pro. § 399. 12. Where the time to begin the action is limited by con- tract, an attempt to begin the action, as provided in section 399, has the same effect as it would have if the limitation was by statute. Gough v. McFall, 31 App. Div. 578; 52 Supp. 221. 13. In the Municipal Court of the City of New York, "An action shall be deemed commenced at the time the summons THE SUMMONS AND THE SERVICE THEREOF. 85 Contents and Forms of Summonses and Notices Attached thereto. is actually delivered for service." Municipal Court Act; L. 1902, oh. 580, § 30. This section does not, in terms, require that the summons shall be delivered to an officer for service in order that the delivery for service may be deemed the commencement of the action, but such procedure would be the safest. 14. Replevin — Delivery of a summons and requisition in replevin to the coroner, not being a judicial act, is not a pro- visional remedy and is not the commencement of an action. Adams v. Henry, 3 Week. Dig. 22; Nosser v. Coricin, 36 How. Pr. 540. But there seems to be no provision of law requiring that a summons shall be served within any specified time after a requisition in replevin has been either delivered to the officer or executed by him. And where the chattel is actually replevied before the summons is served, the seizure thereof by the sheriff is regarded as equivalent to the granting of a provi- sional remedy and as the commencement of the action for some purposes. Code Civ. Pro. § 1693. II. CONTENTS AND FORMS OF SXJMMONSES AND NOTICES AT- TACHED THERETO. FORMS. NO. PAGE. 52. Summons 89. 53. Affidavit, undertaking and order shortening time to answer sum- mons in City Court of the City of New York 91. 54. Notice where the complaint is not served with the summons ... 93. 55. Notice of object of action and no personal claim in mortgage fore- closure cases 94. 56. Notice in other than mortgage foreclosure cases 94. 57. Indorsement on summons in action for a penalty or forfeiture . . 95. 58. Indorsement on summons in matrimonial action where complaint is not served -• 96 59. Summons in the Municipal Court of the City of New York 96. 1. " The summons must contain the title of the action, specif ymg the court in which the action is brought; the names of 86 Bradbury's Lansing's forms and practice. Contents and Forms of Summonses and Notices Attached thereto. the parties to the action, and, if it is brought in the Supreme Court, the name of the county in which the plaintiff desires the trial; and it must be subscribed by the plaintiff's attorney, who must add to his signature his office address, specifying a place within the State where there is a post office. If in a city, he must add the street, and the street number, if any, or suitable designation of the particular locality." Code Civ. Pro. § 417. 2. Failure to name the county is not such a defect as requires the court to set aside the service of the summons absolutely; the motion to do so may be denied on condition that a proper summons be served within a time limited. Wallace v. Dim- mick, 24 Hun, 635; Wiggins v. Richmond, 58 How. Pr. 376. 3. Misnomer of defendant — Since the decision in Stuyves- ant V. Weil (167 N. Y. 421), was made the law seems to be settled that the court has very broad powers to allow amend- ments in the name of a defendant as given in the summons. The older decisions which cast doubt on this power, where the defendant defaulted after being served with a summons in which there was some error in his name, must be deemed overruled. See People ex rel. Aldhouse v. McCarthy, 41 Misc. 429; 84 Supp. 1062. 4. Changing the name of the plaintiff so as to enter a judgment in favor of a person other than the plaintiff desig- nated in the summons is not allowable if the defendant is in default. Korman v. Grand Lodge of U. S., 44 Misc. 564 ; 90 Supp. 120. 5. Where the defendant is sued by a fictitious name, the fact that it is fictitious must appear in the summons. Code Civ. Pro. § 451; Gardner v. Craft, 52 How. Pr. 499; Aaron v. Lee, 11 Week. Dig. 527. The defendant should be described THE SUMMONS AND THE SERVICE THEREOF. 87 Contents iind Forms of Summonses and Notices Attached thereto. SO ag to identify him. Thus, "The man in command of the sloop Hornet " has been held good. Pindar v. Black, 4 How. Pr. 95. 6. Designating the Ciiristian names toy initials, while bad practice, is generally considered an irregularity merely and may be disregarded if there is no question as to the iden- tity of the parties. Grant v. Birdsall, 48 Super. Ct. 427; 2 Civ. Pro. Rep. (Browne), 422; appeal dismissed, 92 N. Y. 653; Farmers' Nat. Bk. of Rome v. Williams, 9 Civ. Pro. Rep. 212 ; Sherrod v. Shirley, 57 Ind. 13 ; Webber v. Bolte, 51 Mich. 113; 16 N. W. 257. 7. A substitution of defendants cannot be allowed under the guise of an amendment. Thus where an individual is sued and the complaint alleges that he is doing business under a corporate name the summons may not be amended by striking out the name of the individual and inserting therein the name of the corporation as the sole defendant. Licausi v. Ash- worth, 78 App. Div. 486; 79 Supp. 631; N. Y. State M., etc., Assn. V. Remington Agricultural Wks., 89 N. Y. 22; Munzinger V. Courier Co., 82 Hun, 575; 31 Supp. 737; Shaw v. Cock, 78 N. Y. 194; Abbott v. N. Y., L. E. & W. R. Co., 120 N. Y. 652. Where an action was brought against a defendant as a foreign corporation and by the answer it appeared to be a voluntary association an amendment was allowed substituting the mem- bers of the association as defendants in place of the society itself. Evoy v. Expressman' s Aid Society, 21 Supp. 641. The name World Publishing Co., was held to be properly allowed to be amended so as to read Press Publishing Co., as a party defendant. Reilly v. World Publishing Co., 14 St. Rep. 390. 8. Indiyidual and representative capacity. — ^Where one is sued as an individual and his name as stated in the summons 88 BRADBURY S LANSING S FORMS AND PRACTICE. Contents and Forms of Summonses and Notices Attached thereto. is followed by words which are merely descriptio personce, the summons cannot be amended, after trial, so as to bind him iij a representative capacity. United Press v. Abell Co., 73 App. Div. 240; 76 Supp. 692; s. c, another appeal, 79 App. Div. 550; 80 Supp. 454. In this connection the word "as" be- tween the name and the title is important; e. g., John Doe as executor, etc., without the word "as," the words execu- tor, etc., would be merely descriptio personce. But where the defendant is sued in a representative capacity the court has power to strike out the words showing such a representative capacity and leaving the defendant liable in his individual capacity, although the statute of limitations had run against the individual. Boyd v. U. S. Mortgage & Trust Co., 84 App. Div. 466; 82 Supp. 1001; Tighe v. Pope, 16 Hun, 180. 9. Partners — -The individual names of partners, whether plaintiffs or defendants, should always be specified in a sum- mons, except in those jurisdictions where by statute suits may be brought by or against partnerships by specifying the partnership name only. Weichsel v. Spear, 47 Super. Ct. (J. & S.) 223. But if the names of the partners are not known to the plaintiff it has been held that he may designate the defendants by a partnership name; and an amendment after judgment has been allowed, on motion of the defendants, specifying the individual names of defendants sued as a part- nership. Thompson v. Kessel, 30 N. Y. 383. See also Gv,m- bel V. Pitkin, 113 U. S. 545; The Protector, 11 Wall. 82. 10. Unincorporated Associations — In New York actions may be brought against an unincorporated association com- posed of more than seven members by naming the president or treasurer as defendant, thus: "John Doe as President of Adams Express Company, a Voluntary Association Composed of More than Seven Members." Code Civ. Pro. § 1919. THE SUMMONS AND THE SERVICE THEREOF. 89 Contents and Forms of Summonses and Notices Attached thereto. 11. Attorney's name and address. — A printed signature sufficient. Mayor v. Eider, 2 Civ. Pro. Rep. (Browne), 125; Barnard v. Heydrick, 49 Barb. 62; 2 Abb. Pr. N. S. 47; 32 How. Pr. 97. A summons may be amended by inserting the attorney's name. Sluyter v. Smith, 2 Bosw. 673. Failure to insert post office address is not jurisdictional; it can be cured by amendment. Wiggins v. Richmond, 58 How. Pr. 376. Where the copy served did not contain the name of the plain- tiff's attorney it was held that this was an irregularity which could be cured. Hull v. Canandaigua El. Lt. & B. Co., 55 App. Div. 419; 66 Supp. 865. Form No. 53. Summons. 1 (Code Civ. Pro. § 418.) New York Supreme Court. Trial desired in County. [Name of the plaintiff^. Plaintiff, against [Name of the defendant], Defendant. Summons. To the above-named Defendant : You are hereby summoned to answer the complaint in this 1 The above form is used in all the Courts of record in New York and also in the United States Courts in this State, with such modifications as are hereafter specified. (See post, p. .) The title of the court naturally must be made to conform to the tribunal where the action is brought, as the "County Court, Kings County," "City Court of the City of New York," "United States Circuit Court for the Southern District of New York," etc. In the United States Courts the form of the summons in civil actions at law is the same as in the court of the State in which each Federal tribunal is situated, except it must be attested by the clerk, instead of being signed by the plaintiff's attorney, and must be under the seal of the court. U. S. Rev. Stat., § 911; 1 Comp. Stat. p. 683; Brovm v. Pond, 5 Fed: Rep. 37; Peaslee v. Haberstro, 15 Blatch. 472 ; Fed. Cas. No. 10,884; Dvnght v. Merritt, 18 Blatch. 305; 4 Fed. Rep. 614. 90 bradbuhy's Lansing's forms and practice. Contents and Foims of Summonses and Notices Attached thereto. action, and to serve a copy of your answer on the plaintiff's attorney within twenty days ^ after the service of this sum- mons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated , 190 . Plaintiff's Attorney. Office and Post Office Address: ' The time which the defendant has to appear or answer sometimes varies in the different oourts. In the City Court of the City of New York, it is usually six days. Code Civ. Pro. § 3165. And where the plaintiff or the defendant (or all the plaintiffs or all the defendants if more than one) is a non-resident of the city of New York, as constituted prior to January 1, 1898, the time to answer may be shortened to not less than two days by order. Code Civ. Pro. § 3165; New York City Charter, § 1345; L. 1901, ch. 466. Where the plaintiff or the defendant is such a non-resident the time can be shortened only by an order of a justice of the court (see form No. S3, this chapter) , a copy of which must be served with the summons. To procure this order the plaintiff may, in the discretion of the judge, be compelled to give an undertaking to the effect that he will pay any judgment rendered against him not exceeding the sum specified in the undertaking which must be at least $250. If the court dispenses with the undertaking the order must specifically provide to that effect. Code Civ. Pro. §3165. The order must also provide the specific number of days the defendant shall have to answer. Mead v. Hartwell, 10 Misc. 662; 31 Supp. 674. Having an office in the city does not make such person a resident thereof within the meaning of § 3165. Milligan v. Fles, 21 Abb. N. C. 93 (Mc- Adam, J.). // the summons is served personally mthovt the city or by publication pursuant to an order to that effect it must give the defendant ten days to answer. Code Civ. Pro. § 3165. If erroneous in this respect it may be amended. Deimel v. Scheveland, 16 Daly, 34. But if not amended the court does not acquire jurisdiction. Bell v. Good, 19 Supp. 693; 46 St. Rep. 572. // the time to answer be erroneously stated to be "twenty" days in the copy served the defendant is not in default until the expiration of that time from the date of the service of the summons. Hatfield v. Atwood, 15 Civ. Pro. Rep. 330; 18 St. Rep. 285. THE SUMMONS AND THE SERVICE THEREOF. 91 Contents and Forms of Summonses and Notices Attached thereto. Form No. 53. Affidavit, Undertaking and Order Shortening Time to Answer Summons in City Court of the City of New York.' (Code Civ. Pro. § 3165.) Affidavit. [Title.] County op New York, ss.: A. B., being duly sworn deposes and says that he is the plaintiff {or one of the plaintiffs) in this action; that the plain- tiff {or all the plaintiffs) herein {or the defendant or all the defendants) resides without the City of New York, as it was constituted prior to January 1, 1898; and that said plaintiff {or said plaintiffs, or said defendant, or said defendants) re- sides at in the State of to deponent's per- sonal knowledge. (// any of these allegations are made on information and belief state the sources of the information and the grounds of the belief of the deponent, according to the rules found at p. .) Deponent therefore prays for an order requiring the de- fendant (s) to answer the complaint within two days after the service on him (them) of the summons, exclusive of the day of service. No previous application for such an order has been made. Sworn to, etc. Undertaking. [Title.] Whereas, the above-named plaintiff is about to commence an action in the City Court of the City of New York against the above-named defendant and the plaintiff is about to apply for an order shortening the time within which the defendant shall answer the summons therein; now therefore C. D., of ' See note 1, p. 90. 92 Bradbury's Lansing's forms and practice. Contents and Forms of Summonses and Notices Attached thereto. No. Street, in the of does undertake pursuant to the statute, that the plaintiff will pay any judgment which may be rendered against him in said action, not exceeding two himdred and fifty dollars. C. D. County of New York, ss. : C. D., being duly sworn deposes and says that he resides at No. Street, in the of and is a house (free) holder therein ; that he is worth twice the sum spe- cified in the above undertaking over and above all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. Sworn to, etc. C. D. State op New York, County of New York, ss. : On this — day of , 19 — , before me personally appeared C. D., to me known and known to me to be the person described in and who executed the foregoing undertaking and he acknowledged to me that he executed the same. E.F. Notary Public, New York County. Order.^ [Title.] Satisfactory proof having presented to me that (plaintiff or defendant as the case may be) resides without the City of New York, as constituted prior to January 1, 1898, and the plaintiff having duly applied for an order shortening the time of the defendant (s) to answer the summons to two days, exclusive of the day of service thereof, and the plaintiff having duly given a proper undertaking as provided by law (or the ' The above order must be indorsed on or annexed to the summons and a copy thereof must be deUvered with a copy of the summons. Code Civ. Pro. § 3165. The giving of an undertaking may be dispensed with and if so the fact should be recited in the order. THE SUMMONS AND THE SERVICE THEREOF. 93 Contents and Forms of Summonses and Notices Attached thereto. giving of an undertaking having been dispensed with), it is hereby, Ordered, that the defendant (s) in the above-entitled action be summoned to answer the complaint herein within two days after the service of the summons, exclusive of the day of service. Dated, , 19—. Justice of the City Court of the City of New York. Form Wo. 54. Notice Where the Complaint is not Served with the Summons.' (Code Civ. Pro. § 419.) Take notice, that upon your default to appear or answer the above sununons, judgment will be taken against you for the sum of dollars with interest from and with costs of this action. Plaintiff's attorney. ' The above notice, usually printed at the bottom on the face of the summons, but sometimes indorsed on the outside, is only used where a, complaint is not served with the summons. If the damages are liquidated, or can be determined by computation only, such a notice served with the summons entitles the plaintiff to enter judgment, in case of the defendant's default, without an application to the court. Code Civ. Pro. §§ 419, 420. In an action on contract, hut sounding in tort, judgment may be entered without an application to the court if the damages are liquidated or can be ascertained by computation only. Thus where an agent receives money In a fiduciary capacity and fails to turn it over to his principal, application to the court is unnecessary to enter judgment where such a notice is in- dorsed on the summons. Steamship Richmond Hill Co. v Seager, 31 App. Div. 288; 52 Supp. 985. Also for liquidated damages stated in a contract to convey lands. Cemetery Board v. Teller, 8 How. Pr. 504 ; for goods sold, Diblee v. Mason, 1 Code Bep. 37; against sureties on a replevin bond, Montegriffs v. Musti, 1 Daly, 77; and see as to an action on a quantum meruit, Champlin v. Dietz, 37 How. Pr. 214. 94 Bradbury's Lansing's forms and practice. Contents and Forms of Summonses and Notices Attached thereto. Form No. 55.' Notice of Object of Action and no Personal Claim in Mortgage Foreclosure Cases. (Code Civ. Pro. § 423.) [Title.] To the above-named defendants, except A. B.: Take notice, that the summons herewith served upon you in this action, is issued upon a complaint [*] praying the fore- closure of a mortgage executed by E. F., , to G. H., on the day of , 19 — , recorded in the office of the clerk of the county of , in book of mortgages No. — , page — , on the day of , 19 — , at o'clock — M., to secure the payment of the sum of — dollars, with interest thereupon from , 19 — , upon the following described premises, namely [here insert brief description of property]: and that no personal claim is made against you, or against any defendant, except A. B. Dated , 19—. Attorney for plaintiff. Form No. 56. Notice in Other tlian Mortgage Foreclosure Cases. (Code Civ. Pro. § 423.) As in foregoing form to [*], and from thence as follows: praying [here set forth general object of the action and a brief description of the property affected by it, if it affects specific real or personal ' If a person served with such a notice as No. 4 or No. 5 unreasonably defends the action costs may be awarded against him. Code Civ. Pro. §423. THE SUMMONS AND THE SERVICE THEREOF. 95 Contents and Forms of Summons and Notices Attached thereto. property then add:] and that no personal claim is made against you, or against any defendant, except A. B. Dated — , 19—. Attorney for plaintiff. Form No. 57. Indorsement on Summons in an Action for a Penalty or For- feiture.' (Code Civ. Pro. § 1897). Issued according to the provisions of the statute concerning ' The foregoing indorsement was held to be good in Marselis v. Seaman, 21 Barb. 319. The Code (§ 1897) provides that in an action to recover a penalty or forfeiture given by a statute, if a copy of the complaint is not served with the sum/mons, a general reference to the statute must be indorsed on the summons, in the following form: "According to the provisions of," etc.; adding such a description of the statute as will identify it with con- venient certainty, and also specifying the section, if penalties and forfeitures are given by different sections thereof, for different acts or omissions. The notice should not be in the body of the summons. Schoonmaker V. Brooks, 24 Hun, 553. The statute applies to an action by the people. People v. O'Neil, 54 Hun, 610; and to an action on a municipal ordinance. Mayor v. Eisler, 2 Civ. Pro. Rep. (Browne), 125; 10 Daly, 396; but not to an action where there is a penalty merely by way of increased damages. Sprague v. Irwin, 27 How. Pr. 51. Failure to make the indorsement is probably a jurisdictional defect, which is not waived by a special limited appearance, for the reason that until the defendant appears and receives a copy of the complaint he cannot tell that the action is for a penalty or forfeiture. Lassen v. Aronson, 29 Abb. N. C. 114; 21 Supp. 452; Delisser v. N. Y., N. H. & H. R. Co., 59 Super. Ct. 233; 14 Supp. 382; Brovm v. Pond, 5 Fed. Rep. 31. But the defend- ant must move to set aside the summons in such a case and if he appears and answers without objection after the complaint is served the defect is waived. Bissell v. N. Y. C, etc., R. Co., 67 Barb. 385 (affirmed at Gen- eral Term); Vernon v. Palmer, 48 Super. Ct. 231. And he must move promptly. United States v. Riley, 88 Fed. Rep. 480. Generally a notice is sufficient, under this section, if it gives to the defend- ant such information as to the penalty as he would receive if the complaint had been served with the summons. See Prussia v. Guenther, 16 Abb. 96 Bradbury's Lansing's forms and practice. Contents and Forms of Summons and Notices Attached thereto. the incorporation of turnpike and plank road companies and the collection of penalties for demanding and recovering more than lawful toU in passing through toll-gates on such roads. Form No. 58. Indorsement on Summons in Matrimonial Actions where Com- plaint not served. (Code Civ. Pro. § 1774.) "Action to Annul a Marriage," "Action for a Divorce," or "Action for a Separation," as the case may be. Form No. 59. Summons in the Municipal Court of the City of New York. (L. 1902, ch. 580, § 28.) Municipal Court of the City of New York. Borough of Manhattan — Eighth District. [Name of the plaintiff], Plaintiff, against [Name of the defendant], Defendant. >■ Summons. To the above-named defendant: You are hereby summoned and required to appear in this N. C. 230; or points out with reasonable clearness the statute and section thereof under which the action is brought. Perry v. Tynen, 22 Barb. 137; Andrews v. Harrington, 19 Barb. 343; Ripley v. McCann, 34 Hun, 112; Marselis v. Seaman, 21 Barb. 319. As specimens of defective notices, see Avery v. Slack, 17 Wend. 85; Schoonmaker v. Brooks, 24 Hun, 553; Hitchman v. Baxter, 34 Hun, 271. In the Federal courts of New York, there must be an indorsement on the summons in the same cases that it is required in actions in the State tri- bunals. Brown v. Pond, 5 Fed. Rep. 31, 37. THE SUMMONS AND THE SERVICE THEREOF. 97 Where a Summons May Be Served Personally — Territorial Limitation. action in the Municipal Court of the City of New York, Bor- ough of Manhattan, Eighth District, in the Court Room thereof. Grand Opera House Hall, northwest corner of 23d Street and Eighth Avenue, in the City of New York, on the day of , 190 , at nine o'clock in the forenoon, to answer the complaint of the Plaintiff in this action, who, if you then fail to appear and answer, will take judgment against you for the sum of dollars, with interest from the day of , 190 , together with the costs of this action. Dated, New York, , 190 . Clerk. III. ViTIERE A SUMMONS MAY BE SERVED PERSONALLY — TER- RITORIAL LIMITATION. 1. Territorial limitation. — As a general rule the process of a court, including a summons, may be served personally only within the territorial limits of the political subdivision for which the court is created, or over which its jurisdiction ex- tends. Code Civ. Pro. § 426 ; Schwinger v. Hickok, 53 N. Y. 280; Toland v. Sprague, 12 Peters, 300 ; Jobbins v. Montague, Ben. 425; Fed. Cas. No. 7329. To this rule there are a number of exceptions and limitations hereinafter noted. 2. The process of the state court beginning an action can- not be served on a defendant so as to bind him personally by the judgment rendered, unless the service is made within the territorial limits of the State, except in an action for a divorce or a separation. Schwinger v. Hickok, 53 N. Y. 280; Mohr v. Norwich Union, etc., Soc, 127 N. Y. 452; Wilson v. Graham, Fed. Cas. No. 17,804; 4 Wash. C. C. 53. 3. But a defendant's interest in property real or per- sonal, may be foreclosed, or the property seized, and sold and the proceeds used to satisfy the judgment, although the sum- VoL. 1—7 98 beadbury's Lansing's form and practice. Where a Summons May Be Served Personally — Territorial Limitation. mons was served by publication, or personally without the State, where the court secures possession of the property so as to exercise dominion over it. Schwinger v. Hickok, 53 N. Y. 280. In such a case the judgment is binding on the defendant only to the extent of the value of the property seized. No personal judgment can be rendered against him. Jurisdiction depends upon the fact that the property is within the State and is seized by an officer of the court. The subsequent serv- ing of a summons by publication or personally without the jurisdiction of the court, is, in theory, rather for the purpose of giving notice to the defendant that proceedings have been taken against him, than for any effect it may have on the jurisdiction of the court. Schvringer v. Hickok, 53 N. Y. 280. 4. In the New York Supreme Court, a summons may be served personally in any part of the State no matter in which county the action is brought. 5. County Courts.— Although the County Court of each county is deemed a separate and distinct tribunal, and its jurisdiction generally depends upon the fact that either the property which is the subject of the litigation is situated in the county where the action is brought or the defendant is a resident therein (Code Civ. Pro. § 340), the County Court of any county may send its process for service or execution to any county in the State. Code Civ. Pro. § 347. 6. Process of a Surrogate's Court may be served in any county in the State. Code Civ. Pro. § 2515. 7. City Court of the City of New Yort A summons in this court can be served personally only within the limits of the City of New York as it existed prior to the consolidation with Brooklyn, Long Island City, etc., on January 1, 1898. THE SUMMONS AND THE SERVICE THEREOF. 99 Where a Summons May Be Served Personally — Territorial Limitation. ^ee Code Civ. Pro. §338; L. 1897, c. 378, §1345; L. 1901, c. 466, § 1345 (The Charter of the City of New York.) 8. A summons of the Municipal Court of the City of New York may be served anywhere in the City of New York. Municipal Court Act, L. 1902, ch. 580, § 9. 9. City Court of Yonkers — A summons of the City Court of Yonkers may be served anywhere in the county of Westches- ter. Code Civ. Pro. § 3205. 10. In the City Court of Troy the summons may be served anywhere in the city. L. 1900, ch. 259. 11. A justice's summons may be served in any part of the county in which he is elected or appointed. Hoffman v. Barton, 47 Hun, 409; 14 St. Rep. 506. 12. A Federal Circuit Court has no authority, except in special cases provided for by statute, to issue process to a district other than its own. Herndon v. Ridgway, 17 How. (U. S.) 424. Nor can the process of a Circuit Court be legally served without the district in which it is established except by special authority of law. Toland v. Sprague, 12 Peters, 300; Ex parte Graham, 3 Wash. (C. C.) 456; Fed. Cas. No. 5657; Wilson V. Graham, 4 Wash. (C. C.) 53; Fed. Cas. No. 17,804. 13. A lien by attachment does not confer jurisdiction upon a Federal court to proceed as to the property attached and direct service of the summons by publication or personally without the State or district, as such a proceeding does in many of the state courts. Ex parte Railway Co., 103 U. S. 794; Harland v. Telegraph Co., 40 Fed. Rep. 308; Nazro v. Cragin 3 Dillon, 474; Toland y. Spragm, 12 Peters, 300. Nor 100 Bradbury's Lansing's forms and practice. Where a Summons May Be Served Personally — Territorial Limitation. is jurisdiction conferred in such cases by section 738 of the Revised Statutes, as amended by the Acts of March 3, 1887, and August 13, 1888 (now § 629; see 1 U. S. Compiled Stat., p. 513), which provides that process may be served without the district in which the suit is brought, or by pubHcation, in an action "to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon title to real or personal property within the district where such suit is brought." Ex parte Railway Co., 103 U. S., 794; Harland v. Telegraph Co., 40 Fed. Rep. 308; Nazro v. Cragin, 3 Dillon, 474. Nor by section 915 of the Revised Statutes, which provides that in common-law causes in the courts of the United States the plaintiff is entitled to similar remedies by attachment against the property of the defendant that are provided by the law of the State in which the court is held for its courts. Harland v. Telegraph Co, 40 Fed. Rep. 308. The remedy by attachment must be founded upon personal service of the summons on the defendant in the district of the court issuing it. Harland v. Telegraph Co., 40 Fed. Rep. 308. 14. But where one State contains more than one district, and there are two or more defendants, all of whom live in the State, but in different districts, suit may be brought in either district and process in such cases may be served without the district, but in the same State. U. S. Rev. Stat. §§ 740, 741. 15. Federal courts being the creation of Congress, under power conferred by the Constitution, and there being no lim- itation in the fundamental law upon the running of process, and Congress having power to legislate for the entire United States, it is obvious that the restrictions on the power of these courts in sending process from one district to another, are dictated by public policy. The limitations of Federal courts in this respect, therefore, do not result from an inherent in- The summons and the service thereof. lOl Where a Summons May Be Served Personally — Territorial Limitation. ability on the part of the National Legislature to authorize the tribunals which it creates to send their process beyond the bounds of the territory subject to the jurisdiction of such legislature, as is the case with state courts. Congress has power to authorize the Federal courts to send their process to any part of the United States, because its territorial juris- diction extends that far. Toland v. Sprague, 12 Peters, 300, 328. 16. Jurisdiction depending upon diversity of citizen- sliip — The effect of the provision that process can be served only in the district of the court issuing it, with the exceptions noted, is that it is impossible in practical operation to begin the action in the district in which the plaintiff resides unless the defendant can be found in that district and process served on him while he -is therein, notwithstanding the stat- ute (1 U. S. Compiled Stat. [ed. 1902], p. 508) provides that an action of which the Federal Court has cognizance be- cause of the diversity of citizenship of the parties, may be brought either in the district in which the plaintiff or that in which the defendant resides. 17. Jurisdiction because Federal question involved — Where jtirisdiction of the United States courts depends upon the fact that a Federal question is involved in the suit the ac- tion must be brought in the district in which the defendant resides (1 U. S. Compiled Stat. [ed. 1902], p. 508) and therefore process must be served on him in that district, unless the case comes within one of the exceptions already noted. 18. As to personal service without tlie State, see para- graph Substituted Service, post, page 116. 102 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. IV. BY WHOM, WHEN AND HOW A SUMMONS MAY BE SERVED FORMS AND PRACTICE. FORMS. NO. PAGE. ()0. Indorsement on summons of time within which it must be served 125. 61. Sheriff's certificate of service of summons and complaint 125. 62. Same, on infant under fourteen years of age 126. 63. Same, on lunatic, etc., and his committee 126. 6-1. Same, on person designated by resident of the State, during his absence to receive service for him 1 27. 65. Same, on a corporation 128. 66. Same, on person designated by foreign corporation for that pur- pose 128. 67. Same, where person so designated cannot be found 129. 68. Same, on different defendants at different times 1.30. 69. Affidavit of service of summons and complaint by person other than sheriff \?0. 70. Same affidavit of service on infant under fourteen years of age. . 131. 71. Same, on lunatic, etc., for whom committee has been appointed. 1.32. 72. Same, on a, corporation 1 32. 73. Same, on person designated by foreign corporation to receive same . 1 33. 74. Same, on foreign corporation where no person is designated to receive service 1 33. 75. Same, on under sheriff, etc., for sheriff in action for escape 135. 76. Order of court for service on person other than defendant in cer- tain cases 1 36. 77. Order for service where person to whom delivered has adverse in- terests 136. 78. Affidavit to obtain order dispensing with service oh lunatic 137. 79. Order dispensing with service on lunatic 1 38. 80. Designation by resident of person on whom to serve summons during absence from United States and consent by appointee. 139. 81. Revocation of such designation and consent 140. 82. Designation by foreign corporation of person on whom to serve summons and consent by appointee 141 . 83. Revocations of such designation by foreign corporation and of such consent 143. 84. Certificate of change of residence, etc., by appointee of foreign corporation 145. 85. Admission of service of summons 146. 86. Certificate that defendant caimot be found 147. 87. Affidavit to procure order for service of summons on a resident who cannot be found 147. 88. Order upon such affidavit 148. THE SUMMONS AND THE SERVICE THEREOF. 103 Service of Summons — Forms and Practice. NO. PAGE. 89. Proof of substituted service 149. 90. Affidavit of plaintiff, or his attorney, to obtain order for service by publication of summons 150. 91. Affidavit of search and inquiry for defendant 152. 92. Order for service of summons by publication 153. 93. Notice to defendant to accompany summons as published 155. 9-t. Notice to be served with summons, when service is made without the State 156. 95. Proof of publication of summons and notice 156. 96. Affidavit of deposit in the post office, pursuant to order 157. 97. Affidavit of service on defendant without the State 157. 98. Notice to defendant of entry of judgment, in case of service by publication 158. 1. Any person not a party to the action may serve a summons in an action in the State courts of record, provided he is over the age of eighteen years. Hide 18, General linles of Practice ; Code Ci/v. Pro. § 425. Service may also be made by the sheriff. Ihid. In certain inferior courts service may be made by a constable or a marshal. When made by a per- son not an oflBcer service must be proved by affidavit, or ad- mission duly acknowledged ; but when made by an officer his certificate is usually sufficient. Ihid. The question of proof of service is discussed fully hereafter under that head. 2. A sheriff, as such, cannot make service of a summons outside of his own county. Farmers^ Loan & Trust Co. v. Dickson, 17 How. Pr. 477 ; 9 Abb. Pr. 61. This simply means that if a sheriff makes service outside of his own county proof must be made by affidavit and not by certifi- cate. A sheriff cannot properly serve a summons in an action to which he is a party. Code Civ. Pro. § 172. 3. Service of a summons by the plaintiff has been held to be void, in a justice's court, and to give the justice no ju- risdiction. Smith V. B'urliss, 23 Misc. 544 ; 52 Supp. 841. But the rule seems to be in courts of record, that service of the summons in an action, or of the papers or process to be- gin a special proceeding, by the plaintiff, is a mere irregular- 104 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. ity, which if not corrected by motion of the defendant, before judgment, will be disregarded. Hunter v. Letter, 18 Plow. V\\ 3i:7 ; 10 Abb. Pr. 260 ; Myers v. Overton, 2 Abb. Pr. 314 ; 4 E. D. Smith, 428 ; Losey v. Stanley, S3 Hun, 420 ; 31 Supp. 950 ; rev'd 147 N. T. 560 ; Avithout discussing this point. 4. Federal Courts ; who may serve summons. — There are no satisfactory statutes, decisions or rules defining Avho, if any one, except a United States marshal, is authorized to serve a summons in a civil action at laio in the United States Courts. TJ. S. Rev. Stat. §787, provides that, "It shall be the duty of the marshal of each district to attend to the district and circuit courts when sitting therein, and to execute, throughout the district, all lawful precepts di- rected to him, and issued under the authority of the United States ; and he shall have power to command all neces- sary assistance in the execution of his duty;" and §788 that, " The marshals and their deputies shall have, in each State, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof." WhUe these sections clearly give marshals power to serve sum- monses, there is no statute or final authoritative decision which says that they only shall have such power. In the Southern District of JSIevv York about half of the summon- ses in the Circuit Court are served by persons other than a marshal, and thus far the jurisdiction thus acquired has never been questioned successfully. This practice is founded on U. S. Rev. Stat. § 914, which provides that, " The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and dis- trict courts, shall conform as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule to the contrary notwithstanding." The expression " shall conform, as near as may be," has been THIJ SUMMONS AND THE SERVICE THEREOF. l05 Service of Summons — Forms and Practice. held to give the Federal Courts considerable discretion in i'ol- lowing the practice of the state courts in spite of the closing expression " any rule to the contrary notwithstanding." Shep- ai'd V. Adams, 168 U. S. 618. The specific question decided in that case was whether or not a summons in the form pre- scribed by a rule of the Federal Court, but differing somewhat from that required by a statute of Colorado, in wliich State the suit was brought, was sufficient to confer jurisdiction on the court, conceding that the summons had been regularly served on the defendant, and it was held that it was suflicient. The summons in that case had been served by a marshal, but the court in the general discussion of different provisions of the Revised Statutes remarked {Shepard v. Adams, 168 U. S. 618, at p. 624) : " The processes and writs inv.st he served hy tJie marshal, or by his regularly appointed deputies. Sees. Y87and 788 Rev. Stat." The italics are not the court's. In actual practice this is interpreted to mean merely that the 'marshal must serve such processes when he is requested to do so; not that the marshal only has power to serve such process as the summons. The language of sections 787 and 788 qaot%A.supr(i tends to confirm this interpretation. The Supreme Court de- clared in 188S, referring to Rev. Stat. § 914 already quoted : " The statute of 1872 is peremptory, and whatever belongs to the three categories of practice, pleading and forms and modes of proceeding, must conform to the state law and the practice of the state courts, except where Congress itself has legislated upon a particular subject and prescribed a rule. Then, of course, the act of Congress is to be followed in preference to the laws of the State. With regard to the mode of serving mesne process upon corporations and other persons. Congress has not laid down any rule ; and hence the state law and prac- tice must be followed. There can be no doubt, we think, that the mode of service of process is within the categories named in the act. It is part of the practice and mode of proceeding in a suit." Amy v. Watertown, 130 U. S. 301, at p. 304. The case last cited does not go entirely to the point because there a statute of "Wisconsin provided that process in an action 106 bradbuey's Lansing's forms and practice. Service of Summons — Forms and Practice. against a municipal corporation could be served.wiZy on certain- officers of the corporation and the court held that this was ab- solutely mandatory and binding upon the Federal Courts in actions brought therein, under U. S. Rev. Stat. § 914. There the mode of the service was in question, not the person Avho lawfully could serve the summons. In that case the summons had been served by a marshal. The case of Schwabacker v. Reilly, 2 Dillon, 127 ; Fed. Cas. No. 12,501, is, so far as the author is aware, the only direct au- thority holding that no one except a marshal can serve a summons in a civil action at law in a United States Court, under U. S. Rev. Stat. %% 787, 788 and 9U. The last mentioned case was decided in 1873. Since then, in 1882, it has been held that a marshal ma}' appoint another person to serve process, under § 788, if a sheriff in the State where the Federal Court is located has power to do so. Hyman V. Ohales, 12 Fed. 855. To the same effect is Jewett v. Garrett., 47 Fed. 625. Mr. Foster discusses this question but does not give any positive rule. Foster's Federal Prao. (3d. ed.) § 361, p. 810. The fact that persons other than the marshal frequently do serve summonses, in the southern district of New York at least, and that there is a tacit acquiescence in this practice, seems to indicate that the weight of opinion of the bar in that district is to the effect that such practice is regular. Also, in a recent case, in this district, a motion was made which in- volved the validity of service by a person other than a mar- shal and the service was held good. No opinion was written nor is the case reported. Erie City Iron WorJcs v. Thomas, decided in October, 1904. 5. In suits in equity in the U. S. Court only a marshal or some person specially appointed by the court has authority to serve any process whatever. Rule 15, Federal Rules of Prac- tice in Equity. 6. Sunday, — Process served on Sunday is void. Penal Code, % 268. But a summons may be served on Sunday if accom- THE SUMMONS AND THE SERVICE THEREOF. 107 Service of Summons — Forms and Practice. panied by an injunction, together with an order from a justice of the Supreme Court, permitting service on that day. Code Civ. Pro. § Jr. Otherwise there seems to be no time pre- scribed as to when a summons may or must be served. Service of judicial process on Sunday was void at common law. Harrison v. Wallis, 44 Misc. 492, 498 ; 90 Supp. 44 ; Story V. Elliott, 8 Cowen, 27; People v. Dewey, 23 Misc. 267; 50 Supp. 1013. Ordinarily Sunday comprises the natural day, midnight to midnight. Harrison v. Wallis, 44 Misc. 492 ; 90 Supp. 44 ; Pulling v. People, 8 Barb. 384. 7. On holiday. — Service on the superintendent of insurance at his residence on -Labor Pay, in an action against a foreign corporation, Held, valid. Flynn v. Union Surety and Ouar- anty Co., 170 N. Y. 145 ; aff'g 61 App. Div. 170 ; 70 Supp. 403. So also is service on Christmas Pay. Didsbury v. Van Tassel, 56 Hun, 423 ; 10 Supp. 82 ; and after 12 o'clock on Saturday. People, ex rel. Yillage of Fulton v. Supervisor of Oswego, 50 Hun, 105 ; 3 Supp. 751 ; and on Lincoln^ Birthday. Matter of Bornemann, 6 App. Div. 524 ; 39 Supp. 686 ; also on Fourth of July . Slater \.Jackson,'i'iW\^G.1'&Z; 55 Supp. 581. 8. Service is made on a natural person, who is not an infant or incompetent, such as a lunatic, idiot or habitual drunkard, by delivering a copy thereof to and leaving with him in person within the State. Code Civ. Pro. § 426. 9. Personal service of a summons under Code Civ. Pro. § 426 must be made so that in some substantial manner the party is apprised of the fact that service is intended to be made and be informed generally of what is going on against him, that he may have an opportunity to defend. If the defendant seeks to avoid service the paper may be placed upon his per- son, or it may be dropped near him and his attention called to the proceeding and to the fact that service is intended. But the process server may not assault another to effect service and in case he does so the service will be held void. Anderson v. 108 Bradbury's lansing s forms and practice!. Service of Summons — Forms and Practice. Aleel, 96 App. Div. 370; 89 Supp. 251; Ilille?- v. £. <£ M. R. R. Co., 70 K. Y. 223 ; Wright v. Bennett, 30 Abb. N. C. 65, note ; CorreU v. Oranget, 12 Misc. 209 ; 3i Supp. 25 ; Beehman v. Cutler, 2 C. E. 51 ; Davison v. Balcer, 24 How. Pr. 39. That a summons served otherwise than prescribed by statute reached the defendant does not render the service valid. Eisenhofer v. JV. T. Zeitung, etc., Co., 91 App. Div. 94 ; 86 Supp. 438. See also note 16 L. R. A. 200. 10. Service upon a deputy attorney general, at a place other than his office while an irregularity is sufficient to give the court jurisdiction. Townsend v. Oneonta C, etc., R. Co., 41 Misc. 295 ; 84 Supp. 117 ; aff'd, 86 App. Div. 604 ; 83 Supp. 1034; 13 Ann. Cas. 402. 11. Service on a foreign insurance commissioner after the company had revoked his power and ceased to do business there, the policy sued upon having been issued before the power of attorney was issued to the commissioner, Held, to confer jurisdiction on a foreign court over the defendant, where the condition upon which the company was licensed to do busi- ness in said State was that service could be made on such com- missioner so long as there might be any liability on its part under any contract of insurance issued by it in said State. Woodward v. Mutual Reserve L. Ins. Co., IT'S N. Y. 485 ; rev'g 48 App. Div. 324 ; 82 Supp. 908. See also Birch v. Mutual Reserve L. Ins. Co., 91 App. Div. 384 ; 86 Supp. 8^4 ; Johnston V. Same, 43 Misc. 263 ; 87 Supp. 446. 13. On an infant under fourteen years of age, by deliver- ing a copy to the infant in person and also " to his father, mother or guardian ; or, if there is none within the State, to the person having the care and control of him, or with whom he resides, or in whose service he is employed." Code Civ. Pro. § 426. If the court has reasonable ground to believe that the person other than the infant upon whom the sum- mons has been served pursuant to § 426, has interests ad- THE SUMMONS AND THE SERVICE THEREOF. 109 Service of Summons — Forms and Practice. verse to those of the infant, or for any reason he is not a fit person to protect the rights of the infant, an order may be made designating a person upon whom the summons must be served. Code Cm. Pro. §§ 427, 428. Where the summons is served on the mother only and not on the infant, a judgment founded upon such service is a nullity. Ingersoll v. Mangam, 84 N. T. 622 ; 1 Civ. Pro. E. 151 ; 51 How Pr. 149 ; aff'g 24 Hun, 202; Bellamy v. GiM, 62 How. Pr. 460; Hogle v. Hogle, 49 Hun, 313 ; 17 St. K. 580 ; 2 Supp. 172. But see SchoUe V. Soholle, 55 Super Ct. 468 ; aff' d 101 N. Y. 636. 13. On an infant over the age of fourteen years service is made by serving a copy of the summons on him personally within the State the same as upon an adult. Code Civ. Pro. § 426. But the court may, in its discretion, with or without an application therefor, " make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant to a person designated in the order, and that service of the summons shall not be deemed complete, until it is so de- livered." Code Cm. Pro. § 427. The court usually requires this to be done and careful attorneys almost invariably secure such an order for prudential reasons. 14. Incompetents. — On "a person judicially declared to be incompetent to manage his affairs, in consequence of lunacy, idiocy or habitual drunkenness, and for whom a committee has been appointed, to the committee, and also to the defendant in person," Coffe Civ. Pro. § 426 ; unless "it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to him, in person, will tend to aggravate his dis- order, or lessen the probability of his recovery," in which case the court may make an order dispensing with personal service on the defendant. Code Civ. Pro. § 429. 15. When the defendant has not been judicially declared incompetent, but the court has reasonable ground to believe that for any reason the defendant is " mentally incapable ade- 110 bradbuey's Lansing's forms and practice. Service of Summons — Forms and Practice. quately to protect his rights, the court may, with or without an application therefor, make an order designating a person upon whom the summons must be served. Code Civ. Pio. §427. 16. Where the interests of the committee of an in- competent are adverse to those of his ward or such com- mittee for any reason, is not a fit person to protect the in- competent the court may make an order designating a dif- ferent person upon whom the summons must be served. Code Civ. Pro. § 428. 17. Serving on relative with whom an insane married woman resided is insufficient. Seller v. Heller, 6 How Pr. 194. 18. Service on a husband for himself and his wife has no effect whatever as to binding the wife under the present state of the law. Taggart v. Rogers, 49 Hun, 265 ; 1 Supp. 900. The old chancery rule that a husband could enter an appearance for his wife without service being made upon her {White V. Coulter, 1 Hun, 357 ; 3 T. & C. 608 ; modified, 59 N. Y. 629 ; Foote v. Lathrop, 53 Barb. 183 ; appeal dismissed, 41 N. Y. 358 ; Eckerson v. Volliner, 11 How. Pr. 42 ; Barley V. Ritter, 18 How. Pr. 147; 9 Abb. Pr. 400; Watson v. Church, 3 Hun, 80 ; Nagle v. Taggart, 4 Abb. IST. C. 144), has become obsolete and of no force now. Taggart v. Rog- ers, 49 Hun, 265 ; 1 Supp. 900. 19. Municipal corporations. — In New York City the sum- mons may be served on the mayor, comptroller or corpora- tion counsel. {Code Civ. Pro. §431, subd. 1). In other cities on the mayor, treasurer, counsel, attorney, or clerk ; or if the city lacks either of these officers, to the officer perform- ing corresponding functions under another name. {Id. subd. 2). 20. Domestic corporations. — Service may be made upon THE SUMMONS AND THE SERVICE THEREOF. Ill Service of Summons — Forms and Practice. the president or other head, the secretary or clerk of the cor- poration, the cashier, the treasurer, a director or managing agent. {Code Civ. Pro. § 431, subd. 3.) As to who is a man- aging agent see paragraph '2iO,post. Service on the president of a corporation after he has re- signed is ineffectual as against the corporation. Yorhville Banic V. Henry Zeltner Bwg. Co., 80 App. Div. 678 ;' 80 Supp. 839. "Where an officer in resigning acts in bad faith, see Zelt- ner V. Zelt7ier Bwg. Co., 17i N. Y. 247 ; aff'g 79 App. Div. 136 ; 80 Supp. 338 ; Zeltner v. Henry Zeltner Bwg. Co., 85 App. Div. 387 ; 83 Supp. 366. 21. Foreign corporations. — By the amendment to section 432 of the Code of Civil Procedure, contained in L. 1903, c. 311, in effect May 5, 1903, there were added three officers upon whom a summons may be served within the State in an action against a foreign corporation, and this amendment has the effect of materially modifying many of the older deci- sions. As the law at present stands a summons in an action against a foreign corporation may be served Avithin the State on the president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary, or, if the corporation lacks either of those officers, to the officer performing correspond- ing functions under another name. {Code Civ. Pro. § 432, subd. 1). Or to a person designated in writing for the pur- pose. {Id. subd. 2). If such a designation is not in force, or if neither the person designated nor an officer specified in subd. 1, can be found with due diligence, and the corpo- ration has property within the State, or the cause of action arose therein, the summons may be served on the cashier, director or a managing agent of a corporation within the State. {Code Civ. Pro. § 432, subd. 3). 22. Code Civ. Pro. §432, subds. 1 and 2.— Where the service is made on any officer named m subd. 1, or the per- son designated, as specified in § 432, subd. 2, the service is good, if made within the State, although the corporation has 112 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. no property here and the officer is not here in any oliicial capacit}'', but merely passing through the State. Pope v. Terre Haute, etc., Co., 87 N. Y. 137 ; aff'g 2i Hun, 238 ; Por- ter V. Sewell Car Heating Co., 17 Civ. Pro. E. 386 ; 7 Supp. 166 ; Gills v. Queen Ins. Co., 63 N". Y. 114 ; Miller v. Jones, 67 Hun, 281 ; 22 Supp. 86 ; McGulloh v. Pailla/rd, etc., Co., 20 Civ. Pro. 386 ; 14 Supp. 491. 23. The same ; subd. 3. — But if service is made on an officer specified in subd. 3, of § 432, to wit, a cashier, director or managing agent, it must be shown that the defendant has property in this State, or that the contract was made here, otherwise the service will be set aside on motion. Fontana v. Post Printing cfe Pul. Co., 87 App. Div. 233 ; 84 Supp. 308. See also Hiller v. B. & M. R. Co., 70 N. Y. 223. The prop- erty should be of some substantial value. A few maps, books and the defendant's own unissued bonds do not constitute such property. Barnes v. Molile da N'. R. Co., 12 Hun, 126, citing Coddington v. GiUert, 17 N. Y. 489, which latter case holds that a corporation's unissued bonds do not constitute property which can be seized under an attachment against the corpora- tion. 34. Nonresident director. — Service may be made on a nonresident director temporarily here when the cause of action arises here. Hiller v. B. M. R. Co., 70 N. Y. 225 ; Childs v. Harris Mfg Co., 104 N. Y. 477 ; aff'g 42 Hun, 652. 35. ]t[anaging agent. — One who collects and remits pre- miums to a foreign life insurance company and forwards them to the home office out of the State is not. Moore v. Monu- mental Mut. L. Ins. Co., 77 App. Div. 209 ; 78 Supp. 1009. Nor an agent to solicit advertisements for a newspaper. Fontana v. Post Printing da Pub. Co., 87 App. Div. 233 ; 84 Supp. 308; following Vitola v. Bee Pul. Co., 66 App. Div. 582 ; 73 Supp. 273 ; and disregarding Palmer v. Chicago Eoe. Post Co., 85 Hun, 403 ; 32 Supp. 992, in which it was held to the contrary. THE SUMMONS AND THE SERVICE THEREOF. 113 Service of Summons — Forms and Practice. An agent to solicit insurance residing at a place other than where the principal office of the company is located, is a managing agent on whom process may be served. Bain V. Globe Ins. Co., 9 How. Pr. 448. An agent who has general supervision of a business in a particular district is a managing agent. Mullins v. Metropol- itan L. Ins. Go., 78 Hun, 297 ; 28 Supp. 960. A person having control as the agent of a life insurance company of a district comprising several cities and towns and of nine assistant superintendents and sixty-two subagents subject to his orders is a managing agent. Ives v. Metro- politan L. ins. Co., 78 Hun, 32; 28 Supp. 1030. A division superintendent of a railroad is a managing agent. Rochester, H. & L. R. Co. v. N. Y. L. K c& W. R. Co., 48 Hun, 190 ; 15 St. E. 686 ; 14 Civ. Pro. E. 262 ; Brayton v. N. Y., L. K c& W. R. Co., 72 Hun, 602 ; 25 Supp. 264. So is a general agent who transacts a substantial part of the business in this State of a foreign railroad corporation. Tuchhand v. Chicago & A. R. Co., 115 JST. T. 437. (See cases cited by appellant in the above case, which are disap- proved by the court.) A freight agent of a railroad company may sometimes be a managing agent within the meaning of the statute. Palmer V. Pennsylvania Co., 35 Hun, 369. A managing agent of a corporation does not cease to be such by the appointment of receivers thereof who continue his services. Faltisha v. JST. Y. L. E. & W. R. Co., 12 Misc. 478 ; 33 Supp. 679. " Eeasonable certainty that the defendant will be apprised of the service made " is not a sufficient reason for holding that the person upon whom the service is made is a managing agent ; although it is not necessary that the person should be specifically described by the corporation he represents as a managing agent. Coler v. Pittsburg Bridge Co., 146 IST. Y. 281 ; rev'g 84 Hun, 285 ; 32 Supp. 439 ; 1 Ann. Cas. 232. One whose name appeared on the letter heads of a foreign corporation as " manager " and who signed himself as man- VoL. 1—8 114 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. ager to letters, Held, — to be a managing agent. Young <& Fletcher Co. v. Welsbach L. Co., 65 App. Div. 16 ; 66 Supp. 1024. The grandforeman of the Ancient Order of United Work- men is practically the vice-president and manager of the organ- ization and as such process may be served on him. Balmford V. Orandlodge A. 0. U. W., 16 Misc. 4 ; 37 Supp. 645. 26. Federal Courts ; service of summons on corpora- tions. — Section 914 of the U. S. Eev. Stat., providing that practice in Federal Courts, in other than equity and admiralty causes, shall conform as near as may be to that in the state courts of record in the circuit or district within which Federal Court is held, applies to the service of process on corporations (except as indicated in paragraph 28 following) as well as on natural persons. Amyyr. Watertown, 130 U. S. 301. The rule is especially exacting as to corporations. KiUbe v. Benson, 17 Wall. 624 ; Alexandria v. Fairfax, 95 U. S. 774 ; Settlemeir V. Sullivan, 97 U. S. 444. See also note to Fldred v. Palace Car Co., 45 C. C. A. 3. A suit may be maintained in the district of the plaintiff's residence against a nonresident corporation Avhen there has been service of process in that district on one declared by the state law to be the proper agent of the corporation upon whom process may be served. Gale v. Southern B. cfe L. Assn., 117 Fed. E. 732 ; Machine Go. v. Walthers, 134 IJ. S. 43 ; Dinzy v. Railroad Co., 61 Fed. E. 49 ; Railroad Go. v. Estill, 147 U. S. 591 ; Ex parte Scholhenberger, 96 U. S. 369 ; Rail- road Go. V. Harris, 12 "Wall. 65 ; American Locomotive Wks. V. Dickson Mfg Co., 117 Fed. E. 973. But see paragraph 28 post. " On this question of service of summons on alleged agents of foreign corporations the decisions are various and not at all in harmony in the different courts of the country. Like the dif- ferent kinds of substituted service, this service upon corpora- tions by service upon agents of a subordinate kind has grown up in recent years, under particular statutes of States ; and, THE SUMMONS AND THE SERVICE THEREOF. 115 Service of Summons — Forms and Practice. as the statutes are various, this is perhaps one reason for the differing decisions that we find in the reports. Substituted service in respect to individuals is allowed where they have property within the jurisdiction of the court, and, if personal service cannot be had, service as provided by statute, by pub- lication or otherwise, is allowed to the extent of affecting the property which is within the jurisdiction, although the adjudication does not stand as a judgment generally against the party." Boardman v. 8. S. MoGlure Co., 123 Fed. R. 614. 27. In Federal equity courts the original process of sub- poena is served " by a delivery of a copy thereof by the oiBcer serving the same, to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member or resident in the family." Hule 13, Equity Rules U. S. Courts. This rule should be strictly followed to acquire jurisdiction. Blythe V. Hinckley, 84 Fed. E. 228 ; Hyslop v. Iloppoch, 5 Ben. 533 ; Fed. Cas. No. 6989. No subpoena can be served out of the district for which it was issued. Johhins v. Mon- tague, 5 Ben. 425 ; Fed. Cas. No. 7329. 28. Difference between Federal and State law.— There is an important distinction, however, in one class of cases be- tween the rules prevailing in the State and Federal Courts re- latino- to service of process on foreign corporations who are not doing business and have no property in the /State where the action is begun. Under the New York Code Civ. Pro., § 432, a summons may be served in New York upon the presi- dent, vice-president and certain other olficers therein specified of a foreign corporation, even though the corporation is not doing business in the State and has no property therein, and such officer is only temporarily in the State. Pope v. Terre Haute, etc., Co., 87 N. Y. 137. But in the Federal Courts service of a summons upon an of- fi.cer of. a foreign corporation, who is temporarily within the 116 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. jurisdiction, is not sufficient when the corporation has not been incorporated in the State and does not do business therein, and has no agent or property therein. Ooldey v. Morning News, 156 U. S. 518 ; Swan v. Mutual Reserve Fund L. Assn., 100 Fed. E. 922 ; Gonley v. Mathieson Alkali Works, 110 Fed. E.. 730. Ooldey v. Morning News, cited above, was a case arising in the New York Circuit and the Supreme Court dis- approved the doctrine announced in the New York Courts and held that in a personal action brought in a State Court against a corporation which neither is incorporated nor does business within the State, nor has any agent or property therein, service upon its president temporarily within the jurisdiction, although good in the State Courts will not be held sufficient service upon the corporation in the U. S. Circuit Court, and that the objection could be taken by the defendant after re- moval of the cause from the State to the Federal Court. And a judgment of a State Court rendered upon such service it would seem would be held to be a nullity when attacked in a Federal Court. Ooldey v. Morning News, 156 U. S. 518, and cases cited on page 522. 29. Substituted service generally. — There are several methods of substituted service of a summons, which may be thus classed : (1) By publication ; (2) personally without the State ; (3) by mail, and (4) by fastening to the door of the defendant's dwelling, or leaving with a person other than the defendant. Usually two or more of these methods are employed in each case, so that all proper precautions may be taken to give no- tice to the defendant that he is sued. None of them can ever be employed in the New York State Courts of record without a special order of the court, or of a judge thereof, in the spe- cific case in which it is used. 30. Inability to secure personal service on the defendant in the State is always the chief fact which must be shown to secure an order for any kind of substituted service upon a THE SUMMONS AND THE SERVICE THEREOF. 117 Service of Summons — Forms and Practice. nonresident or foreign corporation. Code Civ. Pro. §439. Publication and personal service without the State are usually, altbough not always, employed to serve nonresidents of tlie State and foreign corporations. The other forms of substituted service are generally used to secure service on natural persons who are residents of the State, but who evade service so that personal service cannot be made upon them. Code Civ. Pro. §§ 4:35, 438 ; Ilaswell v. Lincks, 8Y N. Y. 637 ; afl'g 8 Daly, 518. 31. The statute is constitutional. — Con. Wat. Bh. of Boston v. Thurber, 74 Hun, 632 ; 26 Supp. 956 ; atf' d 143 N. Y. 648. 33. Substituted service within the State, is allowed " upon a defendant residing within the State," where upon satisfactory proof, by the affidavit of a person, not' a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or if he is within the State tiuat he avoids service, so that personal service cannot be made. Code Civ. Pro. % 435. 33. When order made. — An order for substituted service should be made where the sheriff deposed that he had made proper and diligent efforts to serve the defendant by going to his place of business and residence, but that he could not be found in this State. Simpson v. Burch, 4 Hun, 315. Where the sheriff's return showed that he called repeatedly at the defendant's residence and was told on each occasion that she was not in and he was not able to find her, and the plaintiff's attorney was told at the defendant's residence that she had gone away for some time and the person whom he saw would not state when or where the defendant had gone. Phillips v. Winne, 20 Supp. 49 ; aff'd general term not reported ; aff'd 139 JST. Y. 607. Where defendant is absent from his usual place of business soon after the demand for payment of a debt 118 Bradbury's Lansing's forms and practice. Cervice of Summons — Forms and Practice. is made, and lie has previously refused to state his residence. Eadon v. Maluvazi, 7 Daly, 147. Where the defendant left the State and remained absent several months and no informa- tion could be secured of his whereabouts or when he would return, dm. Ndt. Bk. v. Thurher, 74 Hun, 632; 26 Supp. 956 ; aff'd 143 N. Y. 648. The affidavit showed frequent calls at the defendant's house where the person in charge said that the defendant was not at home and was unable to tell when he would be, with general allegations of concealment, Held, suiiicient. Nagle v. Taggart, 4 Abb. N. C. 144. Also where those who called at the defendant's residence were informed that he was ill and admission to him was refused this is equiva- lent to being " not found." Carter v. Youngs, 42 Super. Ct. 169. If the judge is satisfied that the defendant resides within the State and cannot be found he may make the order. Col- linsv. Ryan, 32 Barb. 647. The proof must be such as to sat- isfy the mind of the judge that a state of facts exists which en- title the plaintiff to the order. McCarthy v. McCarthy, 55 How. Pr. 418; aff'd 16 Hun, 546 ; aff'd 84 K Y. 671. 34. When order not made. — In action for divorce generally, unless Service cannot be made by publication under § 438. Maiello v. Maiello, 42 Misc. 266 ; 86 Supp. 543. When de- fendant's residence without the State is known. Collins v. Campfield, 9 How. Pr. 519. Where the defendant was known by the plaintiff to be absent from his residence on business. Jones V. Derby, 1 Abb. Pr. 458 ; Ottman v. Daly, 17 Civ. Pro. R. 62 ; 7 Supp. 897. If the plaintiff knows where the defendant can be found. Foot v. Harris, 2 Abb. Pr. 454. Upon proof that the defendant's wife stated that he had gone to Ohio and that she did not expect him back this summer except on a visit. Collins v. Campfield, 6 How. Pr. 519. Where an affidavit by the sheriff stated that he had made proper and diligent efforts, that defendant could not be found or papers served personally, and that he had left to avoid trouble with creditors. Gere v. Gundlach, 57 Barb. 13. 35. Infants may be served under this section, by substi- THE SUMMONS AND THE SERVICE THEREOF. 119 Service of Summons — Forms and Practice. tuted service, where their parents or guardiiins refuse to per- mit the infants to be served personally. Steinhardt t. Baker, 20 Misc. 470 ; 46 Supp. 707 ; aff'd 25 App. Div. 197 ; 49 Supp. 357 ; aff'd 163 JST. Y. 410. 36. The judgment entered on substituted service may be attacked when attempt is made to enforce it, on the ground that the defendant was a nonresident and thus not within the provisions of section 435. Haswell v. Linclcs, 87 N. Y. 637 ; aif'g 8 Daly, 518. If properly made it is equivalent to personal service. Ferris v. Plummer, 46 Hun, 515. And defeats the statute of limitations in the same manner that publication would under Code Civ. Pro. § 399. Glare v. LocJcard, 16 St. E. 739 ; 21 Abb. IST. C. 173 ; 13 Civ. Pro. E. 278 ; aflf'd 122 N. Y. 263. 37. Publication or personal service without the State is employed if the defendant to be served is : {a) A foreign corporation. Code Civ. Pro. § 438, subd. 1. A national bank located in another State is a foreign cor- poration within this provision. Coolie v. State Nat. Bh. of Bos- ton, 52 ]Sr. Y. 96 ; aff'g 50 Barb. 339 ; 3 Abb. P. E. (N. S.) 339. (5) " A natural person not a resident of the State." Code Civ. Pro. § 438, subd. 1. It is doubtful whether this provision applies to nonresident representatives of a deceased party. Angell v. Lawton, 76 N. Y. 540 ; below, 14 Hun, 70. An "administrator of a deceased partner can thus save the surviving partner who, it is alleged, is largely indebted to the partnership. Chesley v. Morton, 9 App. Div. 461 ; 41 Supp. 463. (c) " Where after diligent inquiry the defendant remains un- known to the plaintiff, or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the State." Code Cm. Pro. § 438, subd. 1. {d) " Where the defendant, being a resident of tlie State, has departed therefrom with intent to defraud his creditors, or to 120 Bradbury's Lansing's forms and practice. Sei-\'ice of Summons — Forms and Practice. avoid the service of a summons ; or keeps himself concealed therein, with like intent." Code Civ. Pro. § 438, subd. 2. To establish fraud it must appear that the defendant has pro[)erty of which he has made, or is about to make, an ille- gal disposition. Towsley v. MoDo7iald, 22 Barb. 604. Openly avoiding service by eluding the ofHcer is not keep- ing concealed. Van Rensselaer v. Dunbar, 4 How. Pr. 161. The failure of two persons on the same day to gain admit- tance to the apartment of the defendant is not sufficient evi- dence on which to found order for publication. Foster v. Moore, 68 Hun, 526 ; 22 Supp. 1089. ie) " Where the defendant, being an adult, and a resident of the State, has been continuously without the State of New Ycjrk more than six months next before the granting of the order, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section 430 of this act ; or a designation so made no longer remains in force ; or service upon the person so designated cannot be made within the State, after diligent eiiort." Code Civ. Pro. § 438, subd. 3. (/) " Where the complaint demands judgment annulling a marriage, or for a divorce or a separation." Code Civ. Pro. § 438, subd. 4. In an action for divorce it seems that an order for service should not be made under section 435, unless it appears that service cannot be made by publication under the provisions of section 438. Maiello v. Maiello, 42 Misc. 266 ; 86 Supp. 543 ; particularly where the defendant, the wife, has run away, no attempt is made to find her place of sojourn and an order is requested for service by leaving the summons, etc., at her for- mer residence, which still remains the residence of her hus- band, the plaintiff. Id. {g) Actions affecting the title to or a lien upon real estate situated in the State. Code Civ. Pro. § 438, subd. 5. Publication is proper against an infant defendant. Wheeler V. Cabre, 50 N. Y. 667 ; Syracuse Sav. Bh. v. Burton, 6 Civ. Pro. R. 216. THE SUMMONS AND THE SERVICE THEREOF. 121 Service of Summons- -Forms and Practice. In foreclosure where the summons is served by publication the court can appoint a receiver of the .rents without notice. Fletcher v. Krupp, 35 App. Div. 586 ; 55 Supp. Ii6. (A) Where an attempt has been made to begin an action against a resident of the State or a domestic corporation to avoid the Statute of Limitations. Code Civ. Pro. § 438, subd. 6. ( ^ ) Where the action is against stockholders of a corpora- tion, or joint-stock company and is authorized by a law of the State and the defendant is a stockholder thereof. Code Civ. Pro. % 438, subd. T. 38. The papers on which an order of publication is founded are a verified complaint showing a cause of action of which the court has jurisdiction and proof by affidavit of the addi- tional facts required by the various sections of the Code of Civil Procedure. Code Civ. Pro. §439 ; Paget y. Stevens, 143 N. Y. 172; StowY. Staoy, 14 Civ. Pro. R. 45; McCally v. Hiller, 66 How. Pr. 468 ; Bryan v. University Pub. Co., 112 ]Sr. Y. 382. 39. An aflfldavit is necessary, to show the facts upon which an order of publication is founded ; a certificate is in- sufficient. Waffle V. Oohle, 53 Barb. 517 ; 35 How. Pr. 356 ; Easterlrooh v. Easterhrooli, 64 Barb. 421. 40. Nonresidence and inability to serve, must both ap- pear from the moving papers except where the defendant is a resident of the State and is absent therefrom, or is a resident of the State or a domestic corporation and the publication is had to avoid the statutes of limitations. Code Civ. Pro. § 439 ; Peck v. Cook, 41 Barb. 549 ; Jerome v. Flagg, 48 Hun, 351 ; 15 Civ. Pro. R. 79 ; 1 Supp. 101 ; Hudson v. Knowing, 4 St. R. 866 ; Orr v. Currie, 14 Misc. 74 ; 35 Supp. 198 ; Carle- ton V. Carleton, 85 N". Y. 313 ; Smith v. Mahon, 27 Hun, 40 ; Eatel V. tlatel, 17 Week. Dig. 136 ; McLeod v. Moore, 15 Civ. Pro. R. 77 ; 3 Supp. 792; Seller v. Wilson, 43 Hun, 629 ; Wun- nenlerg v. Gearty, 36 Hun, 243 ; Kennedy v. N. Y. Life Ins. (& Trust Co., 101 N. Y. 487 ; Smith v. Mahon, 27 Hun, 40. 122 BRADBURY'S LANSING's FORMS AND PRACTICE. Service of Summons — Forms and Practice. 41. In Federal Courts, substituted service is not allowed with the same liberality that it is in State tribunals. While liens on real and personal property may be foreclosed in an action at law or suit in equity as the case may be which is founded on service by publication ; Hamilton \. Brown, 161 U. S. 256; WehrmanY. ConJclin, 155 U. S. 314; jurisdiction cannot be acquired by attachment unless the party is first per- sonally served with process within the district. Toland v. Sprague, 12 Peters, 300 ; Mooney v. Burford, 72 Fed. E. 32 ; 34 U. S. App. 5S1; A?iderson v. S/iafer, 10 Fed. K. 266; Mei/ersY. Dorr, Id Blatchf 22; Fed. Cas. No. 9988; C/iqfee V. Hay ward, 20 How. 208. And see Davis v. Waltelee, 156 U. S. 680. 43. How served. — The service of a summons to support an attachment must be such formal service as would sustain the entry of a judgment on default. Kieley v. Central, etc., Mfg Co., 147 ]Sr. Y. 620. 43. Joint defendants ; service on one. — Service on one of two or more defendants is sufficient to sustain an attachment on the joint property of all the defendants who are jointly liable although no service is made, or begun by publication, on the other defendants. Yerhes v. MoFadden, 141 N. Y. 136. 44. Failure to sierve summons within the time limited by Code Civ. Pro. % 638, invalidates the attachment, but does not affect the validity of subsequent service of the summons. Salin V. Kendrick, 2 App. Div. 96 ; 37 Supp. 524. 46. Judgment ; substituted service ; effect. — There is also an important difference between the effect of substituted service on a resident and nonresident, including a foreign cor- poration. As against a resident a personal judgment is secured, upon the defendant's default, by virtue of the substituted service alone. Stow v. Stacy, 14 Civ. Pro. R. 45. But where service is made by publication or personally without the State THE SUMMONS AND THE SERVICE THEREOF. 123 Service of Summons — Forms and Practice. upon a foreign corporation or a nonresident natural person (except in matrimonial actions) a personal judgment for a sum of money only cannot be entered unless the property of the defendant has been attached in the State. Code Cw). Pro. % 1217. Bartlett v. McNeil, 60 K T. 53. And in an action to foreclose a mortgage a deficiency judgment cannot be entered upon service of process by publication. Schwinger v. Hickoh, 53 N. Y. 280. The judgment only binds the goods attached ; no action will lie on such judgment in the State of the defendant's residence, where service of the summons is by publication or personally without the State. Kilburn v. Woodworth, 5 Johns. 37 ; Corey v. Cornelius, 1 Barb. Ch. 571 ; People v. Judges of Del- aware, 6 Cow. 598 ; Robinson v. Ward, 8 Johns. 86 ; Bicknell V. Field, 8 Paige, 440 ; Thomas v. Merchants' BTc., 9 Paige, 216. In the absence of personal service within the State or a general appearance, the court has no jurisdiction to render judgment without proof of the granting of an attachment and a levy by virtue thereof upon property of the defendants within the State. Without it mere service without the State, though in pursuance of an order of publication does not give the court jurisdiction to render a judgment. Reed v. Chilson, 142 IST. Y. 152. 46. Proof of service generally must be made by the cer- tificate of an officer authorized by law to make the same, or by the affidavit of a person not a party of the action. Code Civ. Pro. % 434. If it is made by the certificate of an ofiicer, the service must appear to have been made within the territorial limits of the political subdivision for which the officer was ap- pointed or elected. If made without the territorial limits of such subdivision the officer, of course, can make proof of serv- ice by affidavit, the same as any other individual. Farmers' Loan & Trust Co. v. Dichson, 17 How. Pr. 477 ; 9 Abb. Pr. 61. If service is made hy a 'person other than an officer, the proof thereof must be made by affidavit of the person making the service, or by the written admission duly acknowledged of the 124 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. person upon -whom the service was made. Code Civ. Pro. § 434. If proof is made by affidavit, the affidavit must state the time and place of the service ; if the person making the service is between the ages of eighteen and twenty-one years, the age of such person must be stated ; and if over twenty-one years of age such fact must be stated. Rule 18, General Rules of Practice. The affidavit must also state that the person served was known by the affiant to be the person mentioned and described in the summons as the defendant, or as one of the defendants, in the action. PI. If the action is one for divorce or separation, the affiant must state how he became aware of the fact that the person so served was the defendant in the action. Id. In matrimonial actions the court may and sometimes must call the affiant or the officer as a witness to prove such services. Id. A written admission of service may be made by an adult who has not been judicially declared to be incompetent to manage his affairs, which written admission must be signed by him and either acknowledged by him and certified in like manner as a deed to be recorded in the county, or accompanied by the affidavit of a person other than the plaintiff showing that the signature is genuine. Code Civ. Pro. § 434. 47. Affidavit of third party — Proof of the service of a summons need not necessarily bo made by the party serving it. It is sufficient when made by a third party, and where such third party swears unequivocally and positively that the summons was served at a particular time and place upon the defendant there is a presumption that he swears from personal knowledge and not from hearsay. Murphy v. Shea, 143 N. Y. 78 ; aff'g 3 Misc. 639 ; 23 Supp. 1159. 48. A marshal's return of personal service of a summons cannot be controverted by the affidavit of the defendant merely that she was not served. Long Branch Pier Co. v, Crossley, 40 Misc. 249 ; 81 Supp. 905. 49. A person claiming to have been wrongly served with THE SUMMONS AND THE SERVICE THEREOF. 125 Service of Summons — Forms and Practice. a summons has two remedies, viz : either to appear in a form of appearance indicating the error, and if no attention is paid to this after the answer is received, to formally answer and notice the case for trial, or to move to set aside the service on the ground of mistake. Lederer Amuse^nent Co. v. Pollard., 71 App. Div. 35 ; 75 Supp. 619 ; and see Steinliaus v. Enter- prise Vending M. Co., 39 Misc. 797 ; 81 Supp. 282, and cases therein cited. Form No. 60. Indorsement on Summons of Time within which it Must be Served. (Code Civ. Pro. § 425.) The within summons must be served upon the defendant, A. B., on or before' the day of , 19 — . Dated , 19—. A. W., Plaintiff'' s Attorney., No. — ■ street, , N. Y. Form No. 61. Sheriff's Certificate of Service of Summons and Complaint. (Code Civ. Pro. § 434.) County or , ss. : I, A. M., sheriff of the county of hereby certify that on the day of , 19 — , at No. Street in the city of in the county of and State of New York, I served the within summons and complaint on A. B., the defendant therein named, by delivering to and leaving with said defend- ant personally at said time and place true copies thereof. Dated , 19—. A. M., Sheriff. By C. D., Deputy. ' Service may not be made by the sheriff after the time specified in the notice. Code Civ. Pro. § 425. 126 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. Form No. 63. Certificate of Service of Summons and Complaint upon an Infant under Fourteen Years of Age. (Code Civ. Pro. § 426, subd. 1.) County of , ss. : I, A. M., sheriff of the county of hereby certify that on the day of , 19 — , I served the within summons and annexed complaint upon the within named de- fendant, C. D., an infant under the age of fourteen years, by delivering to and leaving with him personally true copies thereof, at No. Street in the City of , in said county, in the State of New York, at the same time and place like copies, personally, to E. F., the father {or mother, or guardian) of said infant and leaving the same with him, or to Gr. H., the person having the care or control of said infant ; (or to J. J., the person in whose service said infant was then employed ; or to J. K., with whom said infant then resided, such infant having no father or mother or guardian within this State). Dated , 19—. A. B., Sheriff' oj" County. By C. D., Deputy. Form No. 63. Certificate of Service upon a Lunatic, Idiot or Habitual Drunkard and his Committee. (Code Civ. Pro. § 426, subd 2 ; 434, subd. 1.) County of , ss. : I, A. M., sheriff of the county of hereby certify that on the day of , 19 — , I served the within sum- mons and annexed complaint upon the within named de- fendant, A. B., a person jadicially declared to be incompetent to manage his affairs by reason of lunacy ( or idiocy, or habitual THE SUMMONS AND THE SERVICE THEREOF. 127 Service of Summons — Forms and Practice. drunkenness ) and for whom a committee has been appointed, by delivering to him personally ^ true copies thereof in the city {or town ) of , in said county, in the State of New York, and by delivering like copies to C D., the committee of said defendant, on the day of , 19 — , at , in said county, personally. A. M., Sheriff of County. By G. H., Deputy. Form No. 64. Certificate of Service of Summons on person Designated by a Resi- dent of the State During Ms Absence to Receive Service for Him. (Code Civ. Pro. §§ 426, 430.) County of , ss. : I, A. M., sheriff of the county of hereby certify that on the — day of , 19 — , at JSTo. Street, in the ■ of county of state of New York, I served the annexed summons and complaint upon E. F., the within named defendant, by delivering copies of said summons and complaint personally to and leaving with C. D., a person designated by said E. F., by writing executed and acknowledged by him ac- cording to law, and filed on the — day of , 19 — , by him with the written consent of said C. D., executed and acknowl- edged by said C. D., according to law, in the office of the clerk of the county of , where said E. F. resides. A. M., Sheriff of County. By G. H., Deputy. ' See section 429, Code Civ. Pro., as to case in which service on defendant personally may be dispensed with by the court. See also Prentiss v. Cor- nell, 31 Hun, 167, affirmed 96 N. Y. 665, Bayard v. Scanlon, 1 City Ct. Rep. 487; Hawley v. Brennan 12 Civ. Pro. R. 147; 19 Abb. N. C. 186, as to service on lunatic. 128 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. Form ]Vo. 65. Certificate of Service of Summons on a Corporation. (Code Civ. Pro. §§431, 432.) County of , ss. : I, A. M., sheriff of the county of hereby certify that on the day of , 19 — , I served the within summons and complaint upon the within named defendant, tlie ijiere insert name of corporation) by delivering to and leaving Avith A. B. {the ^president, managing agent, mayor, etc}), of said corporation, personally, true copies thereof, at No. — Street in the City of , in said county, in the State of New York A. M., Sheriff of County. By E. F., Deputy. Form No. 66. Certificate of Service of Summons on a Person Designated by Foreign Corporation in the County to Receive Same. (Code Civ. Pro. § 432, subd. 2.) COITNTY OF , ss. : I, A. M., sheriff of the county of hereby certify that on the day of , 19 — , I served the within sum- mons (and complaint) upon the within defendant, the {here in- sert name of corporation) at , in said county, by deliv- ering to and leaving with A. B., the person designated by said corporation, according to law, on whom a summons may be served, copies of said summons and complaint personally.^ . A. M., Sheriff of County. By E. F., Deputy. ' If a domestic corporation, see Code Civ. Pro. § 431, as to officers upon whom service may be made. In case of foreign corporations see Code Civ. Pro. I 432. 3 See Gihbs v. Queen Ins. Co., 63 N. Y. 114. THE SUMMONS AND THE SERVICE THEREOF. 129 Service of Summons — Forms and Practice. Form No. 67. Certificate of Service where Person so Designated Cannot be Found, etc. (Code Civ. Pro. § 432, subd. 3.) County of , ss. : I, A. M., sheriff of the county of hereby certify that on the day of , 19 — , I served the annexed sum- mons and complaint on the defendant therein named the ijiere insert name of corporation), a foreign corporation, by deliver- ing a copy of said summons and complaint to and leaving with C. D. [the cashier, or a director,^ or'], a managing agent to wit : a , of the said corporation, at , in said county in the State of New York. And I further certify, that after due and diligent search, and inquiry made by me, no president, vice-president, treasurer, assistant treasurer, secretary, or assistant secretary, or officer of said corporation performing corresponding functions under another name, could be found by me to be within the said county (and that M. V., the person designated, according to law, by said corporation, upon whom the service of said sum- mons should be made, could not be found by me after due and diligent search had been made by me within said county, for the purpose of finding him, to make such service upon him).^ A. M., Sheriff of County. By E. F., Deputy. ' The service upon a director temporarily here, is valid only when the cause of action arose here, or the foreign corporation has property here. Hiller v. B. & M. R. R. Co., 70 N. Y. 223. See also Po-pe v. Terre Haute Car Manuf. Co., 87 N. Y. 137; Childs v. Earns Manuf. Co., 104 N. Y. 477; Tuchband v. Chicago & A. R. Co., 115 N. Y. 437; Pwter v. Sewall Car Heating Co., 23 Abb. N. C. 233; 7 Supp. 166; Miller v. Jones, 67 Hun, 281; 22 Supp. 86; Brewster v. Mich. Cen. R. Co., 5 How. Pr. 183; Clews v. Rockford, R. I. & St. Louis R. Co., 49 How. Pr. 117; Bain v. Globe Ins. Co., 9 How. Pr. 448; Palmer v. Penn Co., 35 Hun, 369, aff'd 99 N. Y. 679. 2 The proof of due diligence to find such officer or person within the State should appear independently of the sheriff's certificate, by affidavit, show- ing what diligence was used. ^'OL. I.— 9 130 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. Form No. 68. Certificate of Service of Summons on Several Defendants at Differ- ent Times. (Code Civ. Pro. § 426, subd. 4, 434.) County of , ss. : I certify that I served the within summons and complaint upon the several defendants therein named, by delivering and leaving with each of them, personally, true copies thereof, at the times and places in said county, in the State of New York, set opposite their names respectfully, to wit : A. B., on the day of , 19 — , at . C. D., on the day of , 19 — , at . E. F., on the day of , 19—, at . A. M., Sheriff of County. By E. H., Deputy. Form No. 69. Affidavit of Service of Summons and Complaint by Person other than Sheriff, [Title.] County of (Code Civ. Pro. § 426, subd. 4.) A. B., of , being duly sworn, says : That he is years of age ' (or that he is over 21 years of age) and that on the day of , 19—, at No. — street in the city of , in the county of and State of New York, he served the annexed summons and complaint {or no- tice thereto annexed) upon C. D., the defendant {or one of the defendants) therein named, by delivering to and leaving with f the said C. D. a true copy {or copies) of said summons (and complaint or notice) and leaving said copy {or copies) with ' Rule 18 of the Supreme Court Rules requires that service of a summons shall not be made by a person under 18 years of age; that if he is under 21 he shall state his age in the affidavit and if he is over 21 that fact shall be stated. THE SUMMONS AND THE SERVICE THEREOF. 131 Service of Summons — Forms and Practice. him ; (:{:) that he knew the said C. D. so served to be the per- son {or one of the persons) mentioned and described in said summons as the defendant {or one of the defendants) in the above entitled action. (*) {In action for dvoorce or to annul a marriage, or for sepa- rate maintenance, add) : That deponent knew the said C. D. to be the said defendant and proper person to be served by reason of the following facts, to wit : {here state what knowl- edge he had on the subject and how he acquired such knowledge)} A. B. Sworn to, etc. Form No. '70. Affidavit of Service on Infant under Fourteen Years of Age. (Code Civ. Pro. § 426, subd. 1.) {As in form No. 69 to \_X\, and thence as follows) : and by also dehvering to and leaving with E. F., whom he knew to be the father {or mother, or guardian) of said infant {or the person having the care and control of said infant defendant, or with whom said infant resided, or inVhose service said in- fant was employed, there being no father, mother or guardian of said infant within this State) a copy {or copies) of said sum- mons (and complaint or notice) {and from thence as in form No. 69 from [±] to close.) A. B. Sworn to, etc. ' Rule 18 of the General Rules of Practice requires that in actions for a divorce or to annul a marriage, or for a separate maintenance, the affiant, in addition to other requirements, shall state what knowledge he had of the person so served being the defendant and proper person to be served and how he acquired such knowledge. The court may require the affiant to appear in court and be examined in respect thereto, and when service has been made by the sheriff the court must require the officer who made the service to appear and be examined in like manner, unless there shall be presented with the certificate of service the affidavit of such officer that he knew the person served to be the same person named as defendant in the summons, and shall also state the source of his knowledge. 132 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. Form No. 71. Affidavit of Service on Lunatic, etc., for whom Committee has been Appointed. (Code Civ. Pro. § 426, subd. 2.) (As inform No. 69 to [;];], and from thence as follows) : and also by delivering to and leaving with P. R., the committee of said C. D., said C. D. having been judicially declared to be incapable of managing his affairs by reason of lunacy {or idiocy or habitual drunlcenness), and said P. K. having been appointed such committee a copy {or copies) of said summons {and complaint or notice). {Then add as in form No. 18 fro7n \X\ to close.) A. B. Sworn to, etc. Form No. 12. Affidavit of Service of Summons on a Corporation. (Code Civ. Pro. §§431, 432, subd. 1.) [Title.] County of , ss. : A. B., of , being duly sworn, says, that he is — years of age 1 {or that he is over 21 years of age) that on the day of , 19 — , at ]S[o. Street in the City of , county of , State of New York he served the within summons (and annexed complaint or notice) upon the \vithin named defendant the {here insert name of corporation) by delivering to, and leaving with [f] C. D., the president (managing agent, mayor, etc.) of said corporation, a copy {or copies) of said summons (and complaint or notice) at . That deponent knew the said C. D., to be the president {or managing agent, or mayor, etc.), of the said defendant, said cor- poration, mentioned and described in said summons, as the defendant {or one of the defendants) in the above entitled action. A. B. Sworn to, etc. ' If between 18 and 21 years of age state age. See Rule 18, General Rules of Practice. Also note to Form No. 69, ante, p. 130. THK SUMMONS AND THE SERVICE THEREOF. 133 Service of Summons — Forms and Practice. Form IVo. tS. Affidavit of Service of Summoiis on Person Designated by Foreign Corporation to Receive Same. (Code Civ. Pro. § 432, subd. 2.) {As in No. Y2 to [f] and froin thence as follows) : C. D., the person designated by said corporation, according to law, on whom a summons may be served, a copy {or copies) of said summons {and complaint) at , in the county of . That deponent knew the said C. D.' to be the person so designated by said defendant, said corporation, men- tioned and described in said summons as the defendant {oroue of the defendants) in the above entitled action. That deponent is, etc. {here add statements as to age of affiant j as inform No. 69 and note). A. B. Sworn to, etc. Form No. "74. Affidavit of Service of Summons on Foreign Corporation where no Person is Designated to Receive Service, etc. (Code Civ. Pro. § 432, subd. 3.) [Title.] County, ss. : A. B., of , being duly sworn, says, that he has made due and diligent effort, as hereinafter stated, for the purpose of serving the annexed summons, to find, within this State, the president, vice-president, treasurer, assistant treasurer, secretary or assistant treasurer or other officers performing correspond- ' An exemplified copy of the designation, accompanied with certificate that it has not been revoked, is made by subd. 2 of section 432, Code Civ. Pro., presumptive evidence of the execution thereof, and these may prop- erly be annexed to the affidavit. See Wheeler v. N. Y & H. R. Co., 24 Barb. 414; Wheeler & Wilson Manuj. Co. v. McLaughlin, 28 State Rep. 372; 8 Supp. 95. 134 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. ing functions under another name, of the defendant, the {here insert name of corporation) a foreign corporation, to wit : {here state the efforts used for the purpose of finding such officery and that having ascertained, by a search of the records and files of the office of the Secretary of State, that no designation by the said corporation, according to law, of a person to make such service upon, is in force {or the person designated, according to law, by said corporation to receive service of such summons not having been found by deponent within the State after due and diligent search, to wit: {here state efforts made to find such person) he served the annexed summons on the said defendant {naming it) by delivering a copy thereof to and leaving the same with C. D. (the cashier, or a director or) a managing agent,^ to wit : a of the said corporation, at the of , , in the county of ; on the - day of , 19 — ; that deponent knew the said C. D. to be the (cashier, or a director or such managing agent) of said de- fendant {naming it) ; that said defendant at the time of such service had property within the State {if the cause of action arose in the State it need not he stated that it has property therein) ; that deponent {here add statements as to age of affiant as in form No. 69). A. B. Sworn to, etc. ' If these efforts have been made by another party than affiant his affi- davit should be annexed and referred to. ^ As to who is a managing agent under section 432, subd. 3, Code Civ. Pro., see ante, p. 112. A service on a cashier, director or managing agent of a foreign corpora- tion is only good when the corporation has property within the State, or the cause of action arose therein. Some proof should, therefore, appear of its having such property, unless the complaint shows that the cause of action arose in the State. Code Civ. Pro. § 432, subd. 3; Fontana v. Post P. & P. Co., 87 App. Div. 233; 84 Supp. 308; HiUer v. B. & M. R. Co., 70 N. Y. 223. The property should be of some substantial value. A few maps and books of little or no market value and the defendant's own unissued bonds are not such. Barnes v. M. & N. W. R. R. Co., 12 Hun, 126, citing Cod- dington v. Gittert, 17 N. Y. 489. THE SUMMONS AND THE SERVICE THEREOF. 135 Service of Summons — Forms and Practice. Foi-iu No. 'IS. Affidavit of Service of Summons on Tinder-Sheriff, etc., for Sheriff in Action for Escape. (Code Civ. Pro. §426, subd. 3.) (Title.) CouNTr OF , ss.: A. B., of , being duly sworn, says, that on the day of , 19 — , at , in the county of , New York State, he served the annexed summons and complaint on C. D., sheriff of county, the defend- ant therein, named, by delivering to, and leaving with, said C. D., in person, (or with K. S., the under-sheriff of said sheriff, in person, or with. E. F., a deputy-sheriff of said sheriff ; or a clerk in the employment of said sheriff ; or a person in charge of the office of said sheriff, said delivery to said E. F. being made at the office of said sheriff, during the hours ' when it is required by law to be kept open, to wit : at o'clock — m), [true copies] of said summons and complaint. That deponent knew the said C. D. to be the person described in said summons as defendant in the above entitled action.' That deponent was, at the time of such service, over the age of 21 years ; {or of the age of years) {stating exact age, if between 18 and 21.) A. B. Sworn to, etc. ' See Dunford v. Weaver, 84 N. Y. 445; affirming s. c, 21 Hun, 349, that a sheriff cannot, by omitting to file a notice of the place of his office in the county clerk's office, as provided by 2 Rev. Stat. 285, § 55, debar a suitor of the right to serve a summons, as provided by Code Civ. Pro. § 426, subd. 3. ' Add this clause if the service is upon defendant personally. See Rule 18 of Gen. Rules of Practice. 136 Bradbury's lansiNg's forms and practice. Service of Summons — Forms and Practice. Form 'Ho. 76. Order of Court that Service be made on Person other than Defen- dant in Certain Cases, (Code Civ. Pro. § 427.) At a Special Term of the court, held at , on the day of , 19 — . Present, Hon. A. O. [Judge, or Justice.] (Title.) It having appeared to the court that the defendant, A. B., is an infant of the age of fourteen years and upwards ; o)' the court having, in its opinion, reasonable ground to believe that the defendant, A. B., by reason of habitual drunkenness {or other cause, stating it^ is mentally incapable, adequately to })rotect his rights, although not judicially declared to be in- competent to manage his affairs ; and upon the application of M. JS". and upon reading and filing the affidavit of , verified , 19 — , it is hereby Ordered that a copy of the summons in the above entitled action be also delivered, in behalf of the said defendant, A. B. to E. S., and that service of the summons, upon said defend- ant, shall not be deemed complete until such delivery is made, and that a copy of this order be also served upon the said E. S., when such delivery to him is made. Form No. 7T. Order for Service where it Appears that Person to whom Sum- mons is Delivered has Adverse Interest, etc. (Code Civ. Pro. §428.) [At, etc., as in form No. 25.] (Title.) The court having, in its opinion, reasonable ground to believe that the interest of C. D., the person \or committee. l^HE SUMMONS AND THE SERVICE THEREOF. 137 Service of Summons — Forms and Practice. etc.] to whom a copy of the summons was delivered, to coui- plete the service upon the defendant, A. B., in the above entitled action, said A. B. being an infant under the age of fourteen 3'ears [or said A. B. being a person judicially de- clared incompetent to manage his affairs, in consequence of lunacy [o?- idiocy, {or habitual drunkenness)], is adverse to that of said A. B., [or that said C. D. is not, for the reason {stating it), a fit person to protect the rights of said A. B.], it is hereby ordered, that a copy of the summons in this action be also delivered, in behalf of the defendant, A. B., to R. S., and that service of the said summons shall not be deemed complete until it is so delivered [and it is further ordered that a copy of this order be delivered to said K. S., with said copy of the summons]. [And it is hereby further ordered, that E. F., of , be and he is appointed special guardian, ad litem, of said A. B., to conduct the defense for the said A. B., to the ex- clusion of the said committee, and with the same powers, and subject to the same liabilities, as a committee of the property of said A. B.^] FormlVo. 78. Affidavit to Procure Order Dispensing with Service upon Lunatic. (Title.) COTTNTY, SS. (Code Civ. Pro. § 429.) A. B. and C. D., being duly sworn, say, that they are ' This clause in brackets may be added in cases under subdivision 2 of section 426, Code Civ. Pro. The guardian's appointment may be made either by the same order or by a separate order. After a guardian is appointed he has a legal right to notice of all further proceedings in the action. Behlen v. Behlen, 73 App. Div. 143; 76 Supp. 747. An ex parte order appointing a guardian ad litem before leave is ob- tained to sue is improper. Smith v. Keteltas, 22 Misc. 588; 50 Supp 747; aff'd 27 App. Div. 279; 50 Supp. 471. See Code Civ. Pro. § 2527, as to similar proceeding in Surrogates' Courts. 138 bradbuhy's Lansing's forms and practice. Service of Summons — Forms and Practice, practicing physicians ' residing in the of and are acquainted with Y. Z , a lunatic, defendant in the above entitled action, and with the mentals condition of such lunatic, and that, in their opinion, the delivery of a copy of the summons in said action to said Y. Z., would tend to aggravate his disorder [or to lessen the probabihties of his recovery]. That the following are the reasons for deponent's said opinion [here state reasons]. A..B. Sworn to, etc. C. D. Form No. 79. Order Dispensing with delivery of Copy of Summons to Lunatic. (Code Civ. Pro. § 429.) [At, etc., as in form No. 76.] (Title) It appearing to the satisfaction of the court, by the afifi- davit [or affidavits] of A. B. [and C. C], sworn to [respect- ively] , 19 — [and , 19 — ], that the delivery of a copy of the summons in this action to the defendant, Y. Z., who has been judicially declared to be incompetent to manage his affairs in consequence of lunacy, in person, will tend to aggravate his disorder [or to lessen the proba- bility of' his recovery] ; now, on motion of, etc., it is herebv ordered, that the delivery of a copy of the summons to said Y. Z., in this action, be and is hereby dispensed with, and that the delivery of a copy of the said summons to P. R., the committee of said lunatic, be sufficient personal service upon said defendant, Y. Z. ' Other affidavits might be produced, as of the persons in charge of the lunatic, as to facts showing the necessity for dispensing with service, and proof should be made by the affidavit of the attorney, or otherwise, that the defendant has been judicially declared to be incompetent to manage his affairs in consequence of lunacy. THE SUMMONS AND THE SERVICE THEREOF. 13! Service of Summons — Forms and Practice. Form No. 80. Designation by a Resident of a Person upon whom to Serve a Sum- mons During his Absence from the United States. (Code Civ. Pro., § 430.) I, A. B., a resident of the of , in the county of , and State of New York, being of full age and by occupa- tion a [designate occupation], do hereby, pursuant to law, des- ignate C. D., a resident of the of , in the county of and State of New York, and by occupation a [designate occupation'], as a person upon whom a summons, or any process or other paper for the commencement against me of a civil special proceeding in any court, or before any officer, may be served in like manner, and with like effect, as if it was served personally upon me during my absence from the United States [for the period of , from the date of this instrument].' In witness whereof, I have hereunto set my hand this day of , 19 — .• A. B. In the presence of E. F. State of New York, ) . — County, \ On this day of , 19 — , before me personally came A. B., to me known to be the individual described in, and who executed the foregoing instrument, and he acknowleged that he executed the same. Commissioner of Deeds, Notary Public. F. O., [Justice of the Peace or other officer authorized to take acknowledgment of deeds.] ' This designation does not apply to a proceeding to punish for a con- tempt, or where special provision for the service is otherwise made by law. Code Civ. Pro. § 433. The designation remains in force for three years after filing, unless other period is specified, or unless earlier revoked by the death or legal incompetency of either of the parties thereto, or by the filing of a revocation executed and acknowledged in like manner. (See form following.) A designation not filed with the consent not executed is invalid and service on the person so designated does not confer jurisdiction on the court. Lyster v. Pearson, 7 Misc. 98; 27 Supp. 399. 140 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. I, C. D., of the of , in the county of , and State of New York, by occupation a [designate oc- cupatimi], named in the foregoing instrument, do hereby, pur- suant to law, consent to the designation and appointment of myself as a person upon whom a summons, or any process or other paper for the commencement of a civil special proceed- ing against A. B., mentioned in said instrument, in any court or before any officer may be served, in like manner, and with like effect, as if it was served personally upon said A. B. dur- ing the absence of said A. B. from the United States [for the period of ]. Witness my hand and seal, this day of , 19—. CD Acknowledgment hy CD., as last above given. In presence of . Form No. 81. Eevocation of Designation by Resident of Person to Beceive Serv- ice of Summons, etc. (Code Civ. Pro. § 430.) I, A. B., a resident of the , of , in the county of , and State of ISTew York, by occupation a [desig- nate occupation'], do hereby, pursuant to law, revoke the desig- nation made by me of C. D., a resident of the of — — , in the county of , and State aforesaid, by occupa- tion a [designate occupatimi], as a person upon whom a sum- mons, or any process or other paper, for the commencement against me of a civil special proceeding in any court, or before any officer, might be served, in like manner, and with like ef- fect, as if it was served personally upon me during my ab- sence from the United States [for the period of years from the day of , 19 — ], which said designa- tion is dated , 19 — , and was filed and recorded in the THE SUMMONS AND THE SERVICE THEREOF. 141 Service of Summons — Forms and Practice. office of the clerk of the county of , on the day of , 19 — . In witness whereof, etc., as in form No. 80. A. B. In presence of . \_Ac1cno'wledg'ment hy A. B., as inform No. 80.J Or, I, C. D., a resident of the of , in the county of , and State of New York, by occupation a [designate occupation'], do hereb}', pursuant to law, revoke the consent executed by me to my designation by A. B., of the of , in the county of , and State of New York, by occupation a [designate occupation], as a person upon whom a summons, or any process or other paper for the commencement against said A. B. of a civil special proceeding in any court, or by any officer, might be served, in like manner, and with like effect, as if it was served personally upon said A. B. during his absence from the United States [lor tlie period of years, from the day of , 19 — j, which consent is dated on the day of , 19 — , and was filed and recorded in the office of the clerk of the county of , on the day of 19—. In witness whereof, etc., as in form No. 80. C. D. In presence of . [Acknowledgment hy G. D., as inform No. 80. J Form No. 83. Designation by Foreign Corporation of a Person for the Purpose of Service of Summons upon it. (Code Civ. Pro. § 432, subd. 2.) The {liere insert name of corporation), a foreign corporation organized by and under the laws of the State of in the 142 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. United States of America, does hereby, pursuant to law, des- ignate and appoint ' A. B., residing {or having his office] at No. street, in the city of , in the State of New York [or at the of , in the county of , in the State of New York], as a person upon whom service of a summons, or any process or other paper, whereby a special pnjceeding is commenced in a court, or before an officer, ex- cept a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law may be made, for said corporation. In witness whereof, the said [here insert name of cor- poration'], has caused its [president, etc.] to affix his sig- [l. s.] nature and its corporate seal, on the day of , 19-. C. J)., President, etc. (Vice-President, or other acting head of car_poration, naming officer.) State of } „ r\ }• ss. : County of \ On the day of in the year , before me personally came to me known, who, being by me duly sworn, did depose and say that he resided in , that he is the {^president or other officer) of the (name of corporation) the corporation described in and \vhich executed the above instrument ; that he knew the seal of said corporation ; that the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the board of directors of ' Where a foreign corporation has designated an agent upon whom to serve process, as required by the statutes of this State, it thereby submits itself to the jurisdiction of the State Courts, and a judgment rendered upon a summons thus served may be enforced against any property of the cor- poration within the jurisdiction. Qihhs v. Queen Ins Co., 63 N. Y. 114. See also Turner v. Fire Ins. Co. of Philadelphia, 17 Week. Dig. 212, aff'd s. c, 93 N. Y. 634. A designation which fails to state the place where the summons may be served, lacks the consent of the person designated and if not filed in the ofEce of the Secretary of State is fatally defective. McClure V. Supreme Lodge K. of H., 41 App. Div. 131; 59 Supp. 764. THE SUMMONS AND THE SERVICE THEREOF. 143 Service of Summons — Forms and Practice. said corporation, and that he signed his name thereto by Uke order. {Signature and seal and name of office of officer talcing ackn owledgmen t.) (If the acknowledgment is taken without the State of New York it should be taken by an oificer authorized to take the proof or acknowledgment of deeds, to be recorded and ac- companied by the usual certificate of authentication as to the official character of the ofiicer and the genuineness of his sig- nature. See Code Civ. Pro. § 844 ; Eeal Prop. L. §§ 260, 261.) I, A. B., named in the foregoing instrument, do hereby con- sent to the designation of myself, made by said instrument, as a person upon whom service of a summons, or any process or other paper whereby a special proceeding is commenced in a court or before an officer, except a proceeding to punish for contempt and except where special provision for the service thereof is otherwise made by law, may be made for the [here insert the name of corporation'], a foreign corporation, or- ganized under the laws of the State of , in the Uni- ted States of America. In witness whereof, I have hereunto set my hand on this day of , 19 — . C. D. In presence of {Add acTinowledgment as in form No. 80.) Form ]Vo. 83. Revocation of Designation of Person Designated by Foreign Corporation upon Whom to Serve Summons. (Code Civ. Pro. § 432, subd. 2.) The {Jiere insert name of corporation), a foreign corpora- 144 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. tion, organized by and under the laws of the State of , in the United States of America, does hereby, pursuant to law, revoke the designation and appointment made heretofore by it, by instrument dated , 19 — , and filed in the office of the Secretary of State of the State of E^ew York, on the day of , 19 — , of A. B., residing {or having his office) at No. street, in the city of , in the State of New York ( or at the of , in the county of , in the State of New^ York) as a person upon whom a summons or any process or other paper whereby a special proceeding is com- menced in a court or before an officer, except a proceeding to punish for contempt and except "where special provision for the service thereof is otherwise made by law, could be served for said corporation. In witness whereof, the said {Jiere insert name of corpora- tion) has caused its [president, etc.] to affix hereto his signa- ture and its corporate seal, on the day of , 19—. C. D., President, etc. {Add acknowledgment as inform 'No. 82.) Or, I, C. D., residing \_or having an office] at No. street in the city of \or residing or having an office at the of , in the county of , in the State of New York], do hereby revoke my consent, dated , 19 — , to my designation and appointment, by the {here insert name of corporation^, a foreign corpora- tion, organized by and under the laws of the State of , in the United States of America, as a person upon whom service of a summons or any process or other paper whereby a special proceeding is commenced in a court or before an officer, except a proceeding to punish for con- tempt and except where special provision for the service thereof is otherwise made by law, may be made for said corporation, which instrument bears date on the • day of 19 — , and was filed with my said consent THE SUMMONS AND THE SERVICE THEREOF. 145 Service of Summons — Forms and Practice. in the office of the Secretary of State of the State of New York, on the day of , 19 — . In witness whereof, I have hereunto set my hand, this day of , in the year , 19 — ■. C. D. In presence of {Add achnowledgment as in form Wo. 80.) Form No. 84. Change of Office or Residence by Person Designated by Foreign Corporation upon whom Summons may be Served. (Code Civ. Pro. § 432, subd. 2.) I, C. D., the person appointed and designated by the [here insert naw,e of the corporation'], a foreign corporation organ- ized under the laws of the State of , in the United States of America, upon Avhom a summons, or any process or other paper, whereby a special proceeding is commenced in a court or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law, may be served for said cor- poration, by a writing, executed by said corporation accord- ing to law, dated , 19 — , and filed in the office of the Secretary of State of the State of New York, on the day of , 19 — , do hereby certify that my office [or- res- idence] has been changed from the place mentioned in said writing to No. street, in the city of , in the State of New York \pr to the of , in the county of , in the State of New York]. In witness whereof, I have hereunto set my hand [l. s.], this dav of , in the year 19 — . • CD. In presence of ■ {Add achnowledgment as inform No. 80.) Vol. I— 10 146 Bradbury's Lansing's forms and practice. Service of Summons — Fonns and Practice. Form No. 85. Written Admission of Service of Summons. (Code Civ. Pro. § 434, subd. 2.) (Title.) I, A. B., defendant [or one of the defendants] in the within [or above] entitled action, do hereby admit due and personal service of the within [or annexed] summons upon me by deliver- ing to, and leaving with, me a copy thereof, at the of , in the county of , and State of New York, on the , day of , in the year 19 — } A.B. {Add certificate of acknowledgment as inform Wo. 80.) Or, aifidavit as follows : County, ss. : C. D., of , in said county, being duly sworn, says, that on the day of , 19 — , he saw A. B., to him known to be the person described in the within [or an- nexed] summons as a defendant in the above entitled action, sign the foregoing admission of service thereof, and that the said signature of said defendant is genuine [or that he is well acquainted with the handwriting of A. B., the person men- tioned and described in the within (or annexed) summons as a defendant in the above entitled action, having seen him write {or state other grounds of linrnvledge), and that he believes the signature to the foregoing admission of service of said sum- mons to be the genuine signature of said defendant]. CD. Sworn to, etc. ' It seems that the failure to state the time or place of service of the de- fendant's admission of service, is an amendable irregularity, even after judgment. Per Allen, J., in White v. Bogart, 73 N. Y. 256; see also Maples V. Mackey, 15 Hun, 533; s. c, 89 N. Y. 146; Milhr v. Brenham, 68 N. Y. 83; Jones v. U. S. Slate Co., 16 How. 129., The decision in Read v. French, 28 N. Y. 285, that the admission should state that the service was personal, by delivering, etc., is overruled by the provision of the last sentence of Code Civ. Pro. § 434. THE SUMMONS AND THE SERVICE THEREOF. 147 Service of Summons — Forms and Practice. Form No. 86. Certificate that Defendant Evades Service of Summons, (Code Civ. Pro. § 435.) CotTNTY OF , SS. : I certify that the withiii defendant is a resident of '—, in said county, in the State of New York, and that I have made proper and diligent efforts to serve the within \_07- annexed] summons upon him, but that his place of sojourn cannot be ascertained [or that said defendant avoids such service], so that such service cannot be made personally upon him by such proper diligence and effort. A. £., Sheriff of County. By E. H., Deputy. Form No. 8T. Affidavit to Procure Order for Service of Summons on a Resident who Cannot be Found- (Code Civ. Pro. § 435.) (Title.) County, ss.: A. B., of , being duly sworn, deposes and says, that on the day of , 19 — , a summons in the above entitled action, of which a copy is hereunto annexed, was issued to him by plaintiff's attorney, in said action for service upon the defendant, C. D., who resides at , in the county of , in this State; that deponent has made proper and diligent effort to serve the said summons upon the said de- fendant and that the place of his sojourn cannot be ascertained \or that said defendant being within this State avoids service of said summons] so that personal service thereof upon him cannot be made; that deponent, with the intention of making such service upon defendant, made the following effort to find 148 BRADBURY'S LANSING'S FORMS AND PRACTICE. Service of Summons — Forms and Practice. said defendant, [^ere state fully the efforts and inquiries which were made for that purpose.'^ A. B. Sworn to, etc Form No. 88. Order for Service of Summons on a Resident who cannot be Found. (Code Civ. Pro. § 435.) (Title.) It appearing by the affidavit of A. B., sworn to ) ■ , 19 — , that a summons has been issued in the above entitled action, which is hereunto annexed, to be served upon the defendant, C. D., who resides at , in the county of , in this State, and that proper and diligent effort to serve the said summons upon the said defendant has been ' If the defendant can be found, although not within the State, the case is one provided for by section 438 of Code Civ. Pro. subd. 3, and not by section 435, id. As to what facts are sufficient to authorize an order vmder section 435 for substituted service, see McCarthy v. McCarthy, 16 Hun, 546; aff'd 84 N. Y. 671; NagU v. Taggart, 4 Abb. N. C. 144; Haswell v. lAncks, 87 N. Y. 637; Carter v. Youngs, 42 Super. Ct. Rep. 169; Easton v. Malavazi, 7 Daly, 147; McCarthy v. McCarthy, 54 How, Pr. 97; Bcgart v. Swezey, 26 Hun, 463; Smith v. Fogarty, 6 Civ. Pro. R. 366; Fisk v. Bennett, 69 Hun, 272; 23 Supp. 471; Otiman v. Daly, 17 Civ. Fro. R. 62; 7 Supp. 897; Carter V. Youngs, 42 Super. Ct. 167; Con. Bank v. Thurber, 74 Hun, 632; 26 Supp. 956; Simpson. V. Burch, 4 Hun, 315; Collins v. Campfield, 9 How. Pr. 519; Gere v. Gundlach, 57 Barb. 13; Phillips v. Winne, 20 Supp. 49; Clare v. Lockard, 13 Civ. Pro. R. 278; 21 Abb. N. C. 173, aff'd 122 N. Y. 263; Hatfield v. Malcolm, 71 Hun, 51; 24 Supp. 596. In Continental Nat. Bank v. Thurber, 74 Hun, 632; 26 Supp. 956, sec- tion 435 of Code Civ. Pro., is held to be constitutional. The certificate (form No. 86) of the sheriff of the county where defendant resides may be used, substantially as above. The affidavit cannot be made by a party to the action. Code Civ. Pro. § 435. See, also, Collins v. Camp- field, 9 How. Pr. 519; Jones v. Derby, 1 Abb. Pr. 458; Smith v. Fogarty. 6 Civ. Pro. R. 366; Foot v. Harris, 2 Abb. Pr. 454. THE SUMMONS AND THE SERVICE THEREOF. 149 Service of Summons — Forms and Practice. made and that the place of his sojourn cannot be ascertained \or that said defendant being within this State avoids service of said summons] so that personal service thereof upon him cannot be made. It is hereby ordered and directed that the service of said summons be made upon said defendant, C. D., by leaving a copy thereof and of this order at the residence of the said de- fendant, with a person of proper age, if, upon reasonable application, admittance can be obtained and such a person found who will receive it ; or, if admittance cannot be so ob- tained nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by de- positing another copy thereof, properly inclosed in a postpaid wrapper, addressed to said defendant, at his place of residence, in the post office at the place where he resides.' Dated , 19—. T. A., County Judge of ■ — County. {Or A. O., Justice {or Judge) of Supreme Court {or other court).] Form IVo. 89. Proof of Substituted Service. (Code Civ. Pro. § 436.) County of , ss.: A. B., being sworn, says, that he is years of age {ifietween 18 and 21 state age ; if over 21 so state) that on the day of , 19 — , he made service of the within summons and complaint upon the within named de- fendant, E. F., in said county, in pursuance of the annexed order by leaving copies of such summons and complaint and ' For proof of service of summons pursuant to order, see form No. 89. See note to form No. 87. 150 BHADBURl'S LANSING'S FORMS AND PRACTICE. Service of Summons — Forms and Practice. oJ: said order, tat the residence ' of said defendant, at 'No. • street in thie City of in the county of ■ and State of New York, with {give name, if known, of person with whom left, and state aye and other particulars concerning ■person, as indicating that he or she is a person of proper age and discretion}), and by depositing other copies thereof, prop- erly inclosed in a postpaid wrapper, and addressed to said defendant at {Ids residence above specified) his said place of residence, in the post office at {state place where deposited and if in the City of New York State the Borough im, tlie post office of which it was deposited.) A. B. Sworn to, etc. Form No. 90. Affidavit of Plaintiff or his Attorney on Application for Order for Service of Summons by Publication. (Code Civ. Pro. § 439.) (Title.) County of , ss.: A. B., of , being duly sworn, says, that he is the plain- tiff [or the plaintiff's attorney] in the above entitled action ; that the defendant, C. D., is a foreign corporation, organized by and under the laws of the State of , and located and having its principal office for the transaction of its busi- ness at , in the of [or that the de- fendant, C. D., resides out of the State and at , in the State of ; or that the defendant, C. D., after dili- gent inquiry, remains unknown to the plaintiff ; or that plain- ' If the officer cannot get into the house, or there is no person who will receive the paper, insert, in place of the part in brackets, the following: "Affixing the same to the outer [or other] door of the residence of said de- fendant, the said house being closed," "or admittance. being refused " "or there being no person of suitable age to receive the same," or, "there being no person of suitable age who would receive the same." THE SUMMONS AND THE SERVICE THEREOF. 151 Service of Summons — Forms and Practice. tiff is unable to ascertain whether the defendant, C. D., is or is not a resident of the State ; or other cause provided for hy section 438 of the Code] ; that the residence and post office address of the said defendant is (as nearly as the plaintiff is able to ascertain the same), at , in the [State] of [or that plaintiff' has been unable to ascertain, ^vith rea- sonable diligence, the residence or post-office address of the said defendant, or a place where the defendant would probably receive matter transmitted through the post office]. That said defendant is of full age [or is an infant upwards of {or under) fourteen years of age]. [And that plaintiff has been {or will be) unable, after due diligence, to make personal service of the summons upon said defendant.] ' And deponent refers to the annexed affidavit [or affidavits] of E. F. [and G. H.], dated , as to the search and in- quiry made for said defendant for the purpose of serving said summons upon him [and of ascertaining his residence or post office address.] ^ 1 For affidavit as to search and inquiry for defendant, see next form, No. 91. As to proof necessary upon application, see Howe Machine Co. v. Petti- bone, 74 N. Y. 68; s. c, 12 Hun, 657; Belmont v. Cornen, 82 N. Y. 256; Carleton v. Carleton, 85 N. Y. 313; rev'g 23 Hun, 251; Staples v. Fair- child, 3 Comst. 46; Smith v. Mahon, 27 Hun, 40; Walker v. Reiff, Sup. Ct., Second Dept., Dec, 1881; 13 Week. Dig. 331; Schroeder v. Lear, 17 id. 574; Putnam v. Griffin, 19 id. 46; Coffin v. Lesster, 36 Hun, 347; Ratel v. Ratel, 17 Week. Dig. 136; Williamson v. Williamson, 64 How. Pr. 450; Argall v. Bacharch, 18 Week. Dig. 267 Kennedy v.N. Y. Life Ins. and Trust Co., 101 N. Y. 487; rev'g 32 Hun, 35; Lockwood v. Brantly, 31 Hun, 155; Greenbaum v. Dioyer, 4 Civ. Pro. R. 276; 66 How. Pr. 266; Donnelly v. West, 66 How. Pr. 428; Phelps v. Phelps, 6 Civ. Pro. R. 117; McCully v. Heller, 66 How. Pr. 468; Chase v. Lawson, 36 Hun, 221; Wunnenberg v. Gearty, 36 Hun, 243; Denman v. McGuire, 101 N. Y. 161; Bingham v. Bing- ham, 3 How. Pr. [N. S.] 166; Hyatt v. Swivel, 52 Super. Ct. 1; Jones v. Free- man, 22 Week. Dig. 524; Seiler v. Wilson, 43 Hun, 629; Burton v. Burton, 45 Hun, 68; Lyon v. Baxter, 64 How. Pr. 426; Syracuse Sav. Bk. v. Burton, 6 Civ. Pro. R. 216; Bryan v. The University Pub. Co. of N. Y ., 112 N. Y. 382; McCracken v. Flanagan, 127 id. 493; Paget v. Stevens, 143 N. Y. 172; Reijn- olds V. Cleary, 61 Hun, 590; 16 Supp. 421; Coffin v. Lesster, 110 N. Y. 645; aff'g 36 Hun, 347, without op.; Crouter v. Crouter, 133 N. Y. 55; 152 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. That no previous application has been made for an order of substituted service herein {or if such an application has heen made specify it). A. B. Sworn to, etc. Form No. 91. Affidavit of Search and Inc[uiry for Defendant on Appli- cation to Serve Summons by Publication, (Code Civ. Pro. § 438.) (Title.) County of , ss. : E. F., of , being duly sworn, says that on the day of , 19 — , a summons in the above entitled action, which is hereto annexed, was issued and de- livered to him by plaintiff's attorney in said action for serv- ice upon the defendant, C. D. That deponent has made due and diligent search and inquiry for the said defendant, C. D. for the purpose of finding him within this State to serve said summons upon him \]ieTe state efforts and inqui- ries which have heen made and state tlie information ob- tained., so as to justify any of the following conclusions,] and deponent further shows that said defendant, C. D., can- not be found by him within the State [or that he cannot find or obtain any knowledge of the defendant, C. D., or that he has been unable to ascertain whether the defendant Jerome v. Flagg, 48 Hun, 351; Phelfs v. Phel-ps, 32 Hun, 642, aff'g s. c, 6 Civ. Pro. 120; Wichman v. Aschpurwis, 28 Week. Dig. 63; Young v. Fowler, 73 Hun, 179; 25 Supp. 875; Walter v. De Graef, 19 Abb. N. C. 406; Hatfield v. Malcolm, 71 Hun, 51; 24 Supp. 596; Lyon v. Baxter, 64 How. Pr. 426; Piser v. Lockwood, 30 Hun, 6, among other cases. Qucere, whether the nonresident representatives of a deceased defend- ant can be served by pubHcation. Per Miller, J., Angell v. Lawton, 76 N. Y. .540; s. c, 14 Hun, 70. Failure to show that an attachment has been issued is a fatal defect in papers to procure an order for the service of a summons by publication. Wilson V. Lange, 40 Misc. 676; 83 Supp. 180. THE SUMMONS AND THE SERVICE THEREOF. 15S Service of Summons — Forms and Practice. is or is not a resident of the State ; or that being a resi- dent of this State, said defendant has departed therefrom (or keeps himself concealed therein) with intent to defraud his creditors (or to avoid the service of a summons) ; or that being an adult, and a resident of this State, he has been continuously without the United States for more than six months prior to this time, and has not made the desig- nation of any person upon whom to serve a summons in his behalf, as prescribed by section 436 of the Code of Civil Procedure] [and that deponent has been unable, after dili- gent search and inquiry made as above stated to ascertain the residence of said defendant, or any place where said de- fendant would probably receive matter transmitted through the post office]. E. F. Sworn to, etc. Form No. 93. Order for Service of Summons by Publication, (Code Civ. Pro. § 440.) (Title.) It having appeared by a verified complaint in the above en- titled action, hereto annexed, that a sufficient cause of action exists against the defendant, C. D., and proof having been made by affidavits of sworn to respectively on , 19 — , hereto annexed, that said defendant is a foreign corporation, organized by and under the laws of the State of \or that the said defendant is not a resident of the State ;] \or state other case -provided for 'by section Jp38 of the Code of Civil Procedure'\ [and that the plaintiff has been {or will be ) unable, with due diligence, to make personal service of the summons in this action upon said defendant].^ 1 This clause in brackets is to be inserted only where the application is made upon the ground that the defendant is a foreign corporation or not a resident of the State, or in a case specified in subdivisions 4, 5 or 7 of section 438. Code Civ. Pro.\ 439. 154 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. And it further appearing by said annexed affidavits, that the said defendant is located and has its oifice for the prin- cipal transaction of its business [or resides] at , in the State of , and that its [or his] post ofiice ad- dress is at , in the of . [Or, I being satisfied by said aifidavits, hereto annexed, that the plaintiff cannot, with reasonable diligence, as- certain a place or places where the said defendant would probably receive matter transmitted through the post office.] And it further appearing that said defendant is of full age [ or is an infant upwards of (or under) fourteen years of age].^ I do hereby order and direct that service of the summons in this action, a copy of which is hereto annexed, upon the said defendant, C. D., be made by publication thereof in the and in the two , newspapers published at , in the of , which are desig- nated as most likely to give notice to the said defendant, once a week, for six successive weeks ; or, at the option of the plaintiff, by service of the summons, and of a copy of the complaint and of this order, without the State, upon an officer of said defendant, specified in section 431 or 432 of the Code of Civil Procedure [or upon said defendant per- sonally]. And I do further order and direct that on or before the day of the first publication of the summons, the plaintiff deposit in the post office at • , a set of copies of the summons and complaint in this action, and of this order, contained in a securely closed, postpaid wrapper, directed to the said defendant, C. D., at [or I do hereby dispense with the deposit of any papers in the post of- fice]. Dated at the of , in the county of , 1 Add in case of the defendant being an infant under the age of fourteen years, the words "and also upon the person with whom he is sojourning." Id. § 440. THE SUMMONS AND THE SERVICE THEREOF. 155 Service of Summons — Forms and Practice. and State of New York, on the day of , 19— .1 T. A. Justice of the Supreme Court of the State, of New York. \0r other Judge, authorized to maTce the order.] Form No. 93. Notice to Defendant to Accompany Summons as Published. (Code Civ. Pro. § 442.) To C. D., defendant : ' The foregoing summons is served upon you by publication, pursuant to an order of , {naming the judge and his official title'] dated the day ' Non compliance with the directions of the statute as to the contents of the order, renders it wholly void. McCool v. Boiler, 14 Hun, 73. The directions of the order must be strictly followed or the service is not a good one. Smith v. Wells, 69 N. Y. 600. See further as to contents of the order and compliance therewith, Bit- ten V. Griffith, 16 Hun, 454; Weil v. Martin, 24 id. 645; Green v. Squires, 20 id. 15; Schroeder v. Lear, 17 Week. Dig. 574; Piper v. Williams, 5 Law Bull. 51; O'Neil v. Bender, 30 Hun, 204; Lyon v. Baxter, 64 How. Pr. 426; Home Ins. Co. v. Head, 30 Hun, 405; McCully v. Heller, 66 How. Pr. 468; Putnam v. Griffin, 19 Week. Dig. 46; Loring v. Binney, 38 Hun, 152; Brooke v. Saylor, 44 Hun, 554; Berford v. N. Y. Iron Mine Co., 28 W. D. 439. The order need not contain the option that a service out of the State may be made personally. Hatfield v. Malcolm, 71 Hun, 51; 24 Supp. 596. See also Matter of Field, 131 N. Y. 184; overruling Bitten v. Griffith, supra, and holding that the order may direct either mode of service, or both, and that an order directing either mode alone, followed by due service in that manner, will be equally good with one which directs both with an option to choose either. The order cannot be made by the court. Heishon v. Knickerbocker L. Ins. Co., 77 N. Y. 278; but see, also, Phinney v. Broschell, 80 id. 544; 58 How. Pr. 492, aff'g 19 Hun, 116; Mojarrieta v. Saenz, 80 N. Y. 553; Crosby V. Thedford, 7 Civ. Pro. R. 245; Coffin v. Lesster, 36 Hun, 347; 22 Week. Dig. 12. 2 The notice is to be directed only to the defendant or defendants thus served. Code Civ. Pro. § 442. See also McCully v. Heller, 66 How. Pr. 468; Orvis v. Goldschmidt, 2 Civ. Pro. R. 314; Thistle v. Thistle, 66 How. Pr. 472. 156 Bradbury's Lansing's forms and practice. Service of Summons — Forms and Practice. of , 19—, and filed with the complaint in the office of the clerk of , at ■ . M. N., Plaintiff'' s Attorney. {^Office address.] Form No. 94. Notice to be served with Summons when Service is made without the State. (Code Civ. Pro. § 443.) Same as inform No. 93, except that the words "without the State of New York " must be substituted for the words " by puhlioationj^ {Sa,me signature and address.] Form ]Vo. 95. Proof of Publication of Summons and Notice. (Code Civ. Pro. §444.) County, ss. : A. B., of , being duly sworn, says, that he is the pi'inter [or publisher, or foreman, or principal clerk of the printer {or publisher) ] of the , a newspaper published in the city [or town] of , in the county of and State of New York, and that the annexed summons and notice sub- jf)ined thereto has been published in the said newspaper once a week for six successive weeks, the first publication thereof being made on the day of , 19 — .' A. B. Sworn to, etc. ' When the thirty days from granting the attachment ends on Sunday it must be excluded and the first pubhcation on the next day is sufficient. Gribbon v. Freel, 93 N. Y. 93. Six weeks means 42 days and the defendant is not in default in the Su- THE SUMMONS AND THE SERVICE THEREOF. 157 Service of Summons — Forms and Practice. Form No. 96. AfiB.daYit of Deposit in the Post Office Pursuant to Order. (Code Civ. Pro. § 444.) (Title.) CoimTY, ss. : A. B., of , being duly sworn, says, that on the day of , 19 — , he deposited in the post office at the of , in the county of , a set of copies of the sum- mons, complaint and order in the above entitled action hereto annexed contained in a securely closed postpaid wrapper, directed to the defendant, C. D., at A. B. Sworn to, etc. Form No. 97. Affidavit of Service on Defendant without the State. (Code Civ. Pro. § 444.) " (Title of cause.) County, ss. : A. B., of , being duly sworn, says, that on the day of , 19 — , he served the summons and a copy of the complaint and order in the above entitled action, hereto annexed, upon the defendant, C. D., personally, at , preme Court until 62 days have elapsed since the first publication of the summons. Market Nat. Bk. v. Pacific Nat. Bk., 89 N. Y. 398. It has been held that publication on the same day each week is not necessary and that intervals of seven days between publications is not necessary. Steinle v. Bell, 12 Abb. Pr. (N. S.) 171; Larremore, J.; Com. PI. Spl. T. The last publication on the thirty-fifth day is insufficient and a judg- ment rendered on such publication is void. Waters v. Waters, 7 Misc. 519; 27 Supp. 1004. (Super. Ct. Buffalo.) The publication of a supplemental summons requiring the defendants to answer " the complaint," where the order of publication directed service of " an amended complaint," is sufficient. Meeks v. Meeks, 87 App. Div. 99; 84 Supp. 67. 158 Bradbury's Lansing's forms and practice. Service of Summons — ^Forms and Practice. in— , by delivering to said defendant, C. D., copies of the said summons and of the said complaint and order, and leaving the same with him ; that he knew the person so served to be the person [or one of the persons] mentioned and described in said summons as [a] defendant in the above entitled action ; that deponent is of the full age of twenty-one years [or be- came (eighteen) years of age on the day of , 19-]. [If the complaint demands judgment, annulling a mar- riage, or for a divorce or separation, add as in form No. 69 from (*).] A. B. Sworn to, etc. Form No. 98. Notice to Defendant of Entry of Judgment, in case of Service by Publication. ' (Code Civ. Pro. § 445.) [Title.] To C. D., defendant : You are hereby notified that final judgment was entered against you in the above entitled action, in the office of the clerk of the county of , at , in the of ,in the State of New York, on the day of , 19 — , of which judgment a copy is hereto annexed, and that the judgment roll thereupon was filed in said clerk's office on that day. Dated , 19—. A. B., Plaintiff^ Attorney. [Office address or place of business.] ' Where default is made the defendant or his representative may apply- to the court one year after a notice is served on him, to open the judgment, but if no such notice is served application may be made at any time within seven years after the judgment is entered to open the same and allow a defense to be put in. Code Civ. Pro. § 445. No irregularity need be shown to enable the defendant to come in and defend under this section. Marvin V. Brandy, 9 Supp. 593. The remedies provided by the statute are not exclusive. Haebler v. Myers, 132 N. Y. 363. CHAPTER IV. APPEARAlSrCE. FORMS. NO. PAGE. 99. Notice of appearance 163. 100. Notice of special appearance 164. 101. Notice of appearance and waiver of notice in foreclosure 164. 102. Notice of appearance in person 165. 1. In general — Many of the older decisions. as to what con- stitutes a general appearance, have been overruled in JSTew York, and it is now generally held, as will be seen by the authorities cited hereafter, that a general appearance can only be made in the manner' provided in Code Civ. Pro. §421. The statute limits such appearances to the service of a notice of appearance, an answer or a demurrer. But even the serv- ice of an answer does not always constitute a general appear- ance. Belden v. Wilkinson, 33 Misc. 659 ; 68 Supp. 205. See also paragraph 8, post. 2. Time. — The defendant may serve his notice of appearance within twenty days after the service of the summons. Code Civ. Pro. § 421. If a copy of the complaint is not served with the summons, the plaintiff has twenty days after the service of the notice of the appearance containing a demand for the service of a copy of the complaint in which to serve the com- plaint. Code Civ. Pro. § 479. If the complaint is served with the summons the service of a notice of appearance only entitles the defendant to notice of subsequent proceedings, un- less he served an answer or demurrer within twenty days after the complaint is received. Code Civ. Pro. § 422. In courts where the time to answer is less than twenty days the defendant has the same time to appear that he has, by the 1 But see paragraph 4, "post. 159 160 Bradbury's Lansing's forms and practice. The Service of an Answer Pleading Lacli of Jurisdiction. summons, to answer. See Code Civ. Pro. §§ 3165, 3166, as to City Court of the City of New York. 3. A general appearance can be effected in no other way than that prescribed by the code. Paine Lumber Co. v. Gal- hraith, 38 App. Div. 68 ; 55 Supp. 971 ; Benedict v. Arnoux, 38 Supp. 882 ; Wood v. Furtick, 17 Misb. 561 ; 40 Supp. 687 ; Valentine v. Myers' Sanitary Depot., 36 Hun, 201. 4. Taking part in the litigation generally and applying for rehef which could only be granted in a pending suit, amounts to an appearance, which will cure defects in the summons or the service thereof. Farmer v. JVational Life Assn. of Hart- ford, 138 N. Y. 265 ; Louis v. MoBride, 141 U. S. 127 ; Barims V. Western Union Tel. Co., 120 Fed. 555; Laing^. Pigney,160 U. S. 531 ; Hilton v. Gityot, 159 U. S. 113. 5. A general appearance waives all defects, in the sum- mons or the service thereof. Toland v. Sprague, 1 2 Peters, 300, at p. 331 ; Hill v. Mendenhall, 31 Wall. 453 ; Louis v. MoBride, 141 U. S. 127 ; Barnes v. Western Union Tel. Co., 120 Fed. 555 ; Farmer v. National Life Assn., 138 N. Y. 265. 6. A defendant may appear at any time before final judg- ment, and is entitled to notice of all proceedings after such appearance. Manwariiig v. Lippincott, 52 App. Div. 526 ; 65 Supp. 428. The fact that his time to answer had expired and he was thus in default in the service of an answer, does not prevent him from appearing in the action. Id. 7. Serving an answer without reservation, is a waiver of an irregularity in the service or the contents of the summons. Layton v. MoConnell, 61 App. Div. 447 ; 70 Supp. 679 ; Cowen- Tioven v. BalL 118 K Y. 231, 234. ") 8. The service of an answer pleading lack of jurisdiction, without the service of any other formal notice of appearance, does not have the effect of a general appearance in the action, APPEARANCE. 161 The Appearance of One of Two Foreign Executors. and the defendant may have the benefit of any jurisdictional defect which he has pleaded. Beldenw Wilkinson, ^Z Misc. 659 ; GS Supp. 205 ; Hamburger v. Baker, 35 Hun, 455 ; Landers V. Staten Island R. Co., 53 E". Y., 450, at p. 460. 9. But the service of a notice of appearance followed by an answer, pleading lack of jurisdiction, has the same effect as personal service of the summons on the defendant in the State, and a defense that the court has not acquired jurisdic- tion over the defendant will be unavailable. Heed v. Ghilson, 142 N. Y. 152. 10. Interposing an answer alleging non-service of the sninmons only, where the defendant had appeared on the re- turn day and produced the affidavit of the process server (but not the defendant's own) stating that the summons had not been served on the defendant, and the case had been adjourned to give the defendant a chance to put in an answer. Held, — ■ to constitute a general appearance giving the court jurisdiction to render a judgment against the defendant. Goldstein v. Goldsmith, 28 Misc. 569 ; 59 Supp. 6TY. 11. Signing a stipulation extending the time to answer, is not such an appearance by an attorney as will preclude the party from serving an answer by another attorney without an order of substitution of attorneys. Paine Lumber Co . v. Gal- hraith, 38 App. Div. 68 ; 65 Supp. 971. 13. Securing an order extending the time to answer is not an appearance under the Code as it now stands. Littauer v. Stern, 88 App. Div. 274 ; 85 Supp. 71 ; aff'd 177 IS. Y. 233. 13. An extension of the time to answer or demur is necessarily an extension of the time to appear. Littauer v. Stern, 177 N. Y. 233. 14. The appearance of one of two foreign executors binds both if the action is such as can be maintained against Vol. I— 11 162 BRADBURY'S LANSING'S FORMS AND PRACTICE. In the Absence of Proof of a General Appearance. foreign executors. Montgomery v. Boyd, 78 App. Div. 64 ; 79 Supp. 879. 15. A person sued as executor and individually may appear in each capacity by different attorneys. Roche v. O'Connor, 95 App. Div. 496 ; 88 Supp. 968. 16. Serving a notice of motion to vacate an attachment is not a general appearance in an action within the meaning of Code Civ. Pro. % 421. Wood v. Furtioh, 17 Misc. 561 ; 40 Supp. 687. Nor is signing a notice of motion to have a com- plaint made more definite and certain, by an attorney on be- half of the defendant. Valentine v. Myers' Sanitary Depot, 36 Hun, 201. Nor serving notice of motion to cancel lis pen- dens. Cohen V. Levy, 27 Misc. 330 ; 58 Supp. 731. 17. Removing a cause to a United States Court, which tribunal remands it to the State Court, has the effect, in the State Court, of a general appearance, although the actual notice of appearance served by the defendant was special and quali- fied. Farmer v. National Life Assn. of Hartford, 138 N. Y. 265. 18. In the Federal Courts the rule is that the removal of a cause does not waive jurisdictional defects in the service of the summons, or amount to an unqualified general appearance, WalasK ^Y. JR. Co. v. Brow, 164 U. S. 271 ; National Assoc. V. Spiro, 164 U. S. 281 ; Ooldey v. Morning News, 156 U. S. 518. 19. In the absence of proof of a general appearance, a de- fendant who makes a motion merely in an action, will be pre- sumed to have appeared specially. Springfield Metallic Gasket Co. V. Wielar, 26 Misc. 863 ; 56 Supp. 394. 30. A defendant not served with the summons, who is sued jointly with another person (his partner), has the right to voluntarily appear in the action. McLoughlin v. Bieher, 26 Misc. 143 ; 56 Supp. 805. APPEARANCE. 163 Notice of Appearance. 21. The owner of the fee of real estate, against which a Us pendens has been filed, though not served with the sum- mons, has a right to appear in the action if his rights are in- volved in the action. Duer v. Fox, 27 Misc. 676 ; 59 Supp. 426. 22. Withdrawal of appearance. — Where an attorney, under mistake as to the authority conferred upon him, en- ters a general appearance, he should be allowed to with- draw it, upon discovering his error, and allowed to enter a special appearance for the purpose of raising a question of jurisdiction. Dillingham v. Barron, 6 Misc. 600 ; 26 Supp. 1109. "Where a firm of attorneys being authorized to appear in all actions against a sheriff believed at the time they served a notice of appearance that a summons had been served on the sheriff in this action, they should have been allowed to with- draw the notice of appearance after learning of their error in regard to the service of the summons. Hunt v. Brennan, 1 Hun, 213. But a notice of appearance once served cannot be withdrawn without leave of court being first obtained. Oalt v. Provident Savings Bk., 18 Abb. N. 0. 431 ; United States v. Curry, 6 How. (U. S.) 106. Form No. 99. Notice of Appearance. (Code Civ. Pro. § 423.) [Title.] Sir : Please to take notice, that the defendant A. B. here- by appears in the above entitled action, and that I am re- tained as attorney for him therein, and hereby demand that a copy of the complaint,* and of all other papers in this ac- ilf the complaint has been served omit it from the demand. 164 Bradbury's Lansing's forms and practice. Notice of Appearance and Waiver of Notice in Foreclosure. tion be served on me at my office, No. street, New York City. Yours, etc., Dated 19—. 0. D. Attorney for Defendant. Office and Post Office Address : To E. F., Esq., Plaintiff ''s Attorney. Form No. 100. Notice of Special Appearance. [Title.] Sib: Please Take JSToticb that the defendant, A. B., hereby appears in the above entitled action and that I am retained as attorney for him herein, and that this appearance is solely for the purpose of [state purpose of appearance^ and that the said A. B. does not appear generally in this action. (Or, I hereby appear for said A. B. in answer to the annexed order to show cause, and for the sole purpose of objecting to the jurisdiction of the court, and without prejudice to the right to so object, I hereby consent that the return of said motion be adjourned to the day of , 190 ). {Date, signature, address as in Form No. 99) Form No. 101. Notice of Appearance and Waiver of Notice in Foreclosure. [Title.] Sie: Please Take Notice that the defendant, A. B., hereby appears in the above entitled action, and that T am retained as attorney for him herein and hereby waive service of all papers APPEARANCE. 165 Notice of Appearance in Person. and of notices of all proceedings herein except notice of sale and of proceedings to obtain surplus moneys. {Date, signature, etc., as in Form No. 99.) Form No. 103. Notice of Appearance in Person. [Title.] Sie: Please Take Notice that I appear herein personally [con- tinue as in either of foregoing forms.] [Date, signature a?id address of person.] Article CHAPTER V. COMMON FOEMS. I. Acknowledgments. II. Admissions. III. Affidavits. IV. Allowance. V. Amendments. VI. Bonds and trNDERTAKiNOS. VII. Captions. VIII. Certificates. IX. Copies. X. Defaults. XI. Deposit in court. XII. Extension of time. XIII. Filing. XIV. FOLIOING. XV. Indorsement. XVI. Motions and orders. XVII. Notices. XVIII. Oaths. XIX. Offer of judgment. XX. Payment into court. XXI. Petitions. XXII. Publication. XXIII. Returns. XXIV. Stay of proceeding. XXV. Stipulation. XXVI. SUBPCENAS. XXVII. Suggestions on Tuja record. XXVIII. Tender. XXIX. Verification. rOWLBDGl lENTS.^ FORMS. NO. PAGE. 103. Acknowledgment by one or more grantors known to officer — short form 173. 104. By one or more grantors known to officers — long form 173. 1 See Real Property Law, Art. VIII, L. 1896, c. 547, with amendments. 3 Cum. & G. Gen. L., p. 3343. See table, p. 195. 166 COMMON FORMS. 167 Acknowledgments. NO. PAGE. 105. By a grantor identified by a witness 174. 106. By two persons, one known and one identified 174. 107. By a subscribing witness known to the ofiicer 175. 108. By a witness not known but identified, etc 175. 109. Proof of the execution of a deed when the subscribing witnesses are dead 176. 110. By husband and wife known to the officer 177. 111. By two husbands and their wives 178. 112. By wife in separate certificate 178. 113. By a husband and wife identified by a witness 178. 114. By husband known, and wife identified 179. 115. By a subscribing witness of a deed executed by a husband and wife 179. 116. By witness identified in a case similar to the last 180. 117. By a sheriff, referee or receiver 181. 118. By undersheriff in the name of sheriff 181. 119. By a person conveying by a power of attorney 181. 120. By an administrator, executor or trustee 182. 121. Acknowledgment by corporation 182. 122. By firm by one partner 183. 123. Certificate of county clerk to be annexed to the certificate of the officer taking the acknowledgment when it is to be used in another state 183. 124. Petition for a subpoena to compel a subscribing witness to prove the execution of a conveyance 184. 125. Subpoena for subscribing witness to appear and testify 185. 126. Proof of service of subpoena 186. 127. Warrant to arrest 186. 128. Commitment of witness refusing to testify 187. 129. Oath to be administered to the subscribing witness 187. 130. Oath to be administered to a person identifying the parties or the subscribing witness to a conveyance 188. 131. Affirmation to be administered to an affiant 188. 132. Affidavit to a deponent sworn with the uplifted hand 189. 1. The term "acknowledge" and "acknowledgment" when used with reference to the execution of an instrument or writing other than a deed includes either proof of execution or a technical acknowledgment. ]V. Y. Stat. Constr. Zaio, § 15 ; Z. 1892, c. 677. 2. Any instrnment except a promissory note, a bill of exchange or a last will may be acknowledged or proved and 168 Bradbury's Lansing's forms and practice. Acknowledgments. certified in the manner prescribed by law for taking and cer- tifying the aclinowledgment or proof of a conveyance of real property, and thereupon it is evidence as if it was a convey- ance of real property. Code. Civ. Pro. § 937. 3. An acknowledgment is only prima facie evidence of the proper execution of an instrument and its execution may be contested by a party affected thereby. Code. Civ. Pro. § 936. 4. The theory of an acknowledgment is that the signature and seal of the ofiicer taking it are always susceptible of proof from the records, whereas if the instrument is witnessed merely by a private person it may be as difficult to prove the signa- ture of the witness as it would be that of the principal party to the deed or other instrument. The officer taking the ac- knowledgment is elected or appointed by higher authoritj'^, and in either event the fact of his being a public officer is a matter of record. His original signature is invariably attached to his oath of office, and may therefore be compared with the oue appearing on a particular instrument at the foot of a certificate of acknowledgment. Where the two signatures appear to be the same and the certificate is in the proper form, a strong presumption is raised, which can only be over- thrown by very satisfactory proof, that the particular instru- ment was acknowledged before the officer whose name appears thereon. 5. The officer should be personally acquainted with the person who makes the acknowledgment. Peal Prop. L. § 252. How this acquaintance may be brought about is not en- tirely clear from the adjudicated cases, but generally speaking an introduction by a reputable person known to the officer is sufficient. Wood v. Bach, 54 Barb. 134 ; rev'g 48 Barb. 568 ; Rexford v. Bexford, 1 Lans. 6. This method of becoming acquainted, however, has been harshly criticised in a concurring opinion by Yan Brunt, P. J., in a comparatively recent case. Bidwell v. Sullivan, 17 App. Div. 629 ; 45 Supp. 530. COMMON FORMS. 169 Acknowledgments. 6. Territorial jurisdiction of an officer. — An officer au- thorized to take acknowledgements can only act within the territory to which, or for which, he is appointed. Rogers v. Fell, loi N. Y. 518 ; Eeal Prop. L., % 248. In some States notaries public are appointed and empowered to act anywhere in the State; in others they can only act in the county in which they are appointed, and in some instances in counties where they have filed a certified copy of their appointment and oath of office. Their acts without such territorial limits are void, but may be and frequently are made regular by subsequent acts of the legislature. 7. Erasures and interlineations in au instrument if not noted by the one making the acknowledgment should be spec- ified by the notary public in the certificate of acknowledg- ment. 8. Amending certificate. — In those States where the act of the officer is held to be ministerial and not judicial the general rule is that amendments may be made to correct a faulty cer- tificate provided the rights of a third party are not prejudiced thereby. Camp v. Buxton, 34 Hun, 511. 9. Parol evidence may be introduced to correct a defective certificate of acknowledgment attached to an assignment for the benefit of creditors. ClaJUn v. Smith, 35 Hun, 372. 10. A defective certificate of acknowledgment does not preclude common law evidence of execution. Borst v. Empie, 5 N. Y. BS. 11. Officer interested in transaction. — The general rule is that the grantee or other person interested in a transaction concerning which an instrument is executed and acknowledged, is incompetent to take the acknowledgment, and his act in doing so would be void. Thus an acknowledgment of an as- signment of a bond taken before one of the assignees as a 170 Bradbury's Lansing's forms and practice. Acknowledgments. notary is a nullity. Armstrong v. Combs, 15 App. Div. 216 ; 44 Supp. 171. An acknowledgment of a mortgage before the mortgagee is invalid. Zee \. Murphy (Cal.), 51 Pac. K. 549; 51 Pac. R. 955 ; Oroesbeck v. Seeley, 13 Mich. 330 ; Lajprad v. Sherwood, 79 Mich. 520 ; Hammers v. Dole, 61 111. 307. And see cases cited in McCall's Clerk's Assistant, 6th ed., p. 11. But a bank clerk, who is not a stockholder, may properly take an acknowledgment of a deed to the bank. Wachonia Nat. Bk. V. Ireland, 29 Southeastern R. 835. JSTor is a cashier of a bank, \vho is not a stockholder, dis- qualified to take the acknowledgment of a mortgage given to the bank. BTc. of Woodland v. Oherhaus, 57 Pac. E. 1070. That a notary public is a stockholder in a corporation does not disqualify him from taking the acknowledgment of its officers to a corporate deed. Horton v. Columbian Building Society, 6 Weekly Cinn. L. Bull. 141. 12. Venue. — Every acknowledgment should show on its face that it was taken within the jurisdiction of the officer who certifies it. Rogers v. Pell, 154 N". Y. 518. An officer will be presumed to have taken an acknowledgment within the limit of his jurisdiction. People v. Snyder, 41 N. Y. 397. Where the venue to the certificate was the State of New York, the certificate was subscribed by a master in chancery in New Jersey, and there was evidence to show that the acknowledg- ment was actually made in New Jersey, it was held that the question as to where it was made was one of fact for the jury. Eogers v. Pell, 154 N. Y. 518. 13. Date. — Where an acknowledgment purported to have been taken before the Consul General at Paris, four days be- fore filing, it was held that the instrument should not be disregarded, as tlie date was obviously a clerical error. Pierce V. Martin, 89 Supp. 434. 14. Omission of the Consul General's residence from a certificate of acknowledgment does not vitiate it. Pierce v. COMMON FOKMS. 171 Acknowledgments. Martin, 89 Supp. 434 ; Jordan v. Underhili, 91 App. Div. 124 ; 86 Supp. 620. 15. Form. — The statutory forms of certificates of acknowl- edgment should be substantially followed. It is especially im- portant that the certificate should specify that the person acknowledging is known to the officer as being the " person de- scribed in and who executed the within (or foregoing) instru- ment." Thus where the notary certified : " Personally appeared before me the within named J. M. C, to me known, and ac- knowledged the above letter of attorney to be his act and deed, " it was held that this did not entitle the paper to be recorded and a purchaser could not be compelled to take title through a deed executed under such a power of attorney'. Freedman v. Oppenheim, 80 App. Div. 487 ; 81 Supp. 110. 16. Proof toy a witness can be made only by one who sub- scribes his name as a witness to the instrument to be proved. People ex rel. Long Island B. Co. v. Board of R. Comrs., 75 App. Div. 106 ; 77 Supp. 380. The officer must be personally acquainted with the witness, or have satisfactory evidence that he is the same person who was a subscribing witness to the conveyance. Meal Prop. L., § 254. 17. Acknowledgment after snit commenced. — It is not essential that an instrument offered in evidence should have been acknowledged before the suit was commenced ; it may be acknowledged at any time before being offered in evi- dence. HoTbrooh v. New Jersey ZAne Co., 57 E". Y. 616 ; ^Yei^ terer v. SouUrous, 22 Misc. 739 ; 49 Supp. 1043. 18. A certificate of authentication as to the signature and power of a notary is fatally defective if it fails to certify that the handwriting of the notary is known to the officer and he verily believes that the certificate of acknowledgment is genuine. Freedman v. Oppenheim, 80 App. Div. 487; 81 Supp. 110. See Eeal Prop. Z., § § 260, 261. 19. In New York,^ conveyances and all other instruments 172 BEAbBtTRY's LANSING'S FOHMS AND PRACWCE. Acknowledgments. required to be acknowledged, may be acknowledged or proved before the following officers:' In the State: Justice of the Supreme Court, judge, clerk, deputy clerk, special deputy clerk of the court, notary public, mayor or recorder of city, justice of the peace, surrogate, special surrogate, special county judge or commissioner of deeds. Real Prop. Law; (Z. 1896, c. 547 § 248.) Out of State and in U. S. : Before judge of Supreme Court, Circuit Court of Appeals, Circuit Court or District Court of the United States ; judge of Supreme, Superior or Circuit Court of a State ; mayor of city ; commissioner appointed for the purpose by the governor of the State ; any officer of a State, authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein. (Id. § 249.) Out of the U. S. : Before an ambassador, a minister pleni- potentiary, minister extraordinary, minister resident, or charge d'affaires of the United States, residing and accredited within the country; a consul-general, vice-consul-general, deput3'- consul-general, vice-consul or deputy-consul, a consular or vice- consular-agent or a consul or commercial or vice-commercial agent of the United States residing within the country ; a secretary of legation at the post, port, place or within the limits of his legation {L. 1904, c. 528) ; a commissioner ap- pointed for the purpose by the governor, and acting within his own jurisdiction ; a person specially authorized for that purpose by a commission, under the seal of the Supreme Court, issued to a reputable person, residing in or going to the country where the acknowledgment or proof is so to be taken ; within the Dominion of Canada, it may also be made before any judge of a court of record ; or before any officer of such Dominion authorized by the laws thereof to take the acknowl- edgment or proof of deeds to be recorded therein ; within the United Kingdom of Great Britain and Ireland, or the domin- ions thereunto belonging, it may also be made before the 'See Article III., Affidavits, -post, with table giving officers before whom affidavits and acknowledgments may be taken without the State and re- quirements as to authentication of officer's signature. COMMON FORMS. 173 Acknowledgments. mayor, i^rovost or other chief magistrate of a city or town therein, Real Prop. Law, § 250 ; under his hand and the seal of the town. L. 1903, c. 98. In the states comprising the em- pire of Germany before a judge of a court of record under the seal of such court, or a notary public under the seal of his office and of the city or town where he resides. Real Prop. L., § 250, subd. 8. Form No. 103. Acknowledgment by One or More Grantors Known to Of- ficer — Short Form. State of New Yoek, ) County of >• ss.: City (or Town) of ) On this day of , 190 — , personally appeared before me A. B. and (0. D.) (severally) known to me, and to me known to be the (several) person (s) described in {or, one of the persons described in) and who (severally) executed the foregoing instrument and (severally) acknowledged that he (they severally) executed the same. {Signature and title of officer.) Form No. 104. By One or More Grantors Known to Officers— Long Form. State of New Yoek, ) County of >• ss. : City (or Town) of ) On this day of , 190 — , before me {officer's name) a (officer's official title) duly appointed and commissioned in and for the (city of ), county of , and State of New York, residing therein, personally appeared A. B. (and 0. D.) (severally) personally knoAvn to me and tome known to be the (several) person (s) described in and who executed the foregoing (above, or, annexed) instrument (or deed, or con- veyance) and he (they severally) acknowledged that he (they 174 bkadbuhy's Lansing's forms and practice. Acknowledgments. severally) executed the same freely as his (their) voluntary act and deed for the uses and purposes therein mentioned. In witness whereof I have hereunto set my hand and official seal on the date in this certificate first above written. (NoTAKiAL Seal.) {Signalmre and title of officer.) Form ]Vo. 105. By a Grantor Identified by a Witness. State of !N'ew Yoek, County. On this day of , 190 — , before me personally came the above-named Gr. H., the grantor named in the fore- going instrument, and acknowledged that he had executed the foregoing instrument for the uses and purposes therein men- tioned ; and at the same time before me came A. B., to me known, who being by me duly sworn did say, that he resided in the town of , county aforesaid ; that he knew the said G. H., the person appearing before me and making said acknowledgment, to be the individual described in and who exe- cuted the said instrument ; which to me is satisfactory evidence thereof. {Signature and title of officer.) Form No. 106. By Two Persons, One Known and One Identified. State of New Yoek, County. ' On this day of , 190 — , before me per- sonally came L. M. and "S. O., and severally acknowledged that they had executed the foregoing instrument; and I cer- tify that I am personally acquainted with said L. M. and he is to me known to be one of the persons described in and who COMMON FOKMS. 175 Acknowledgments. executed the foregoing instrument ; and at the same time ap- peared before me E. H., to me personally known, who being by me duly sworn did say, that he resides in the city and county of Albany, and that he knew the said N. O. to be one of the persons described in and who executed the foregoing instrument, which is to me satisfactory evidence thereof. {Signature and title of officer.) Form No. 107. By a Subscribing Witness Known to the Officer. ( Real Prop. L., § 253.) State of New York, County, ' On this day of , 190 , before me came E. F., personally known to me and to me known to be the subscribing witness within named, who, being by me duly sworn, did depose and say, that he resides in the town of Nas- sau, county aforesaid, that he knows G. H., the grantor within named, knows him to be the grantor who is described in and who executed the within instrument, that he was present and saw the said G. H. execute the same, and that he acknowledged to him the said {name of witness) that he, the said grantor, executed the same, and that he, the said (witness), thereupon subscribed his name as a witness thereto. {Signature and title of officer.) Form ]Vo. 108. By Witness not Known but Identified, etc. State of New Yoek, County of On this day of , 190 , before me came 176 Bradbury's Lansing's forms and practice. Acknowledgments. K. B., who, being by me duly sworn, did depose and s-dy, that he resides at , in the county of ; that he knew L. M., within named, knew him to be the person described in, and who executed the within instrument ; that he saw the said L. M. execute the same, and that thereupon he subscribed his name thereto as a subscribing witness ; and at the same time before me came L. S., to me personally known, who, being by me duly sworn, did say, that he resides in , in the county of , and that he knows the said R. B. to be the same person who was a subscribing witness to the within conveyance, which is to me satisfactory evidence thereof. {Signature and title of officer^ Form No. 109. Proof of the Execution of a Deed When the Subscribing Witnesses are Dead. ( Real Prop. L., § 263.) State of New York, ) County of j I hereby certify on the day of , 190 , before me came B. B., to me known, and to whom the fore- going deed was by me at that time shown, and the said B. B. being by me duly sworn, did depose and say, that he resided in the town of , in said county, and that he was well acquainted with C. C, the within grantor named ; that he had frequently seen him write and knew his handwriting ; that the name of the said grantor, subscribed to said deed, is in the handwriting of the said C. C. ;and the said B. B. fur- ther deposed and said, that he was also well acquainted with E. D., one of the subscribing witnesses to the said deed, had seen the said E. D. write frequently, and was well acquainted with his handwriting ; that at the time of the date of said deed the said E. D. resided in the village of Cohoes, in said COMMON FORMS. 177 Acknowledgments. county, and has been dead for about three years ; that his name subscribed as a witness to said deed, is in the proper handwriting of the said E. D., deceased. And the said B. B. further deposes, that at the time of the date of said deed he was, and for several years previous thereto had been, acquainted with one A. P., a farmer, residing at that time in the said town of Watervliet, and a near neighbor of the said grantor ; that the said A. P. died about one year since ; that he was not acquainted with the handwriting of the said A. P.; that he has never known or heard of any other person of the name of A. P., and that he cannot say in whose handwriting the name last mentioned is subscribed to said deed. And I further certify that the fact proved, as aforesaid, by the said B. B., is to me satisfactory evidence of the death of all the witnesses to the said deed and of the handwriting of E. D., one of the said witnesses, and of the handwriting of C. C, the said testator. ( This certificate must he signed hy some officer other tha/n no- tary public, justice of the peace or commissioner of deeds.) Form No. 110. By Husband and Wife Known to the Officer. State of JSTew Yoek, ) ^^ . County. ) On this -. day of , 190 , before me per- sonally and severally came the within named E. F., and G. H., his wife, severally known to me and to me known to be the persons described in, and who severally executed the within {or, annexed) instrument, and severally acknowledged that they severally executed the same for the uses and pur- poses therein mentioned. {Signature and title of officer) Vol. 1—12 178 Bradbury's Lansing's forms and practice. Acknowledgments. Form No. 111. By Two Husbands and Their Wives. State of New Yoek, County of ' On this day of , 190 , before me person- ally and severally came A. A., and B., his wife, and 0. C, and D., his wife, all to me known and known to me to be the sev- eral persons described in and who executed the within instru- ment, and severally acknowledged that they severally executed the same for the uses and purposes therein mentioned. {Signature, etc.) Form No. 113. By "Wife in Separate Certificate. State of New Yoek, County of '' I hereby certify that on this day of , 190 , before me came B. B., wife of C. B., to me known and known to me to be the person described in and who executed the within conveyance, and acknowledged that she executed the same. {Signature and title, etc.) Form No. 113. By a Husband and "Wife Identified by a Witness. State of New Toek, ^ ;■ ss County of On this day of , 190 , L. M., and N. M., his wife, personally came before me and severally acknowl- edged that they had severally executed the within {or, fore- going) conveyance {or, instrument) for the uses and purposes COMMON FORMS. 179 Acknowledgments. therein mentioned ; and at the same time came before me E.. S., to me personally known, who, being by me duly sworn, did depose and say, that he resides in the town of Rhinebeck, in said county, and that he knew the said L. M. and IS". M. to be the same individuals described in and who executed the within conveyance, which to me is satisfactory evidence thereof. {Signature and title, etc.) Form ]Vo. 114. By Husband Known, and Wife Identified. State of New Yoek, ) County of j On this day of , 190 , before me came the within named A. B. and C, his wife, and severally ac- . knowledged that they had severally executed the within in- strument ; and I certify that the said A. B. is personally known to me and to me known to be one of the persons described in and who executed said instrument ; and at the same time be- fore me came E. S. to me personally known, who, being by me duly sworn, did depose and say, that he resided in the city and county aforesaid, and that he knew the said C, who made the acknowledgment, as aforesaid, to be the same individual described in, and who executed the within conveyance, which is to me satisfactory evidence thereof. {Signature and title of officer^ Form No. 115. By a Subscribing Witness of a Deed Executed by a Husband and Wife. State of New Yoek ) ^^ . COTTNTT of i On the day of , 190 , before me came 180 Bradbury's Lansing's forms and practice. Acknowledgments. R. P. the within subscribing witness, to me known, who, being by me duly sworn, did depose and say, that he resided in the city of Schenectady ; that he knows the within named K. L., and P., his wife, knows them to be the persons described in and who executed the within conveyance ; that he was present and saw the said K. L., and P., his wife, execute the same, and that thereupon he became the subscribing witness thereto ; that at the time of such execution the said K. L., and P., his wife, were residents of the city of Boston, in the State of Massachusetts, and the said conveyance was executed in the said city of Boston. {Signature and title of officer.) Form No. 116. By Witness Identified in a Case Similar to the Last. State of New York, County of ' On the day of , 190 , before me came R. P., the within subscribing witness, who, being by me duly sworn, did depose and say, that he resided in the city of Schenect- ady; that he knows the witliin-named K. L. and P., his wife, knows them to be the persons described in, and who executed the within conveyance ; that he was present and saw the said K. L., and P., his wife, execute the same, and that thereupon he became the subscribing witness thereto ; that at the time of such execution the said K. L., and P., his wife, were residents of the city of Boston, in the State of Massachusetts, and the said conveyance was executed in the said city of Boston. At the same time appeared before me B. C, to me known, who, being by me sworn, did depose and say, that he resided in the city and county of Albany, that he was well acquainted with E. P., and knows him to be the subscribing witness to the within conveyance, which is to me satisfactory evidence thereof. {Signature and title of officer.) COMMON FORMS. 181 Acknowledgments. Form No. 117. By a Sheriflf, Referee or Receiver. State of New Toek, County of '' ^ On the day of , 190 , before me came D. D., to me known to be the sheriff of the county of Orleans {or, the referee in a cause named ; or, receiver of , or, in a cause named), and the person described in and who executed the fore- going instrument, and acknowledged the execution thereof as such sheriff {or, referee, or, receiver) for the uses and purposes therein mentioned. {Signature and title of officer^ Form No. 118. By TInder-Slieriff in the Name of Sheriff State of New York, County of ' On this • day of , 190 , before me per- sonally came J. G., to me known to be under-sheriff of H. M., Esq., the sheriff of the county of Essex, the person described in and who executed the foregoing conveyance, and he, the said J. G. as such under-sheriff, acknowledged that be had ex- ecuted the foregoing conveyance, in the name and as the act and deed of the said sheriff. {Signature and title of officer^ Form No. 119. By a Person Conveying by a Power of Attorney. 1 State of New Toek, SS County ov On the — day of , 190 , before me personally 182 BRADBURY'S LANSING'S FORMS AND PRACTICE. Acknowledgments. came S. E., to me known and known to me to be the person who executed the witbin instrument in the name of B. P., and he, the said S. E., acknowledged that he executed the same in the name and as the act and deed of said B. P. for the uses and purposes therein mentioned, by virtue of a power of attorney, duly executed by the said B. P., dated , 190 — , and recorded in the oflBce of the clerk of the county of on the day of , 190 — . {Signature and title of officer.) Form No. 130. By an Administrator, Executor or Trustee. State of New Toek, ) County of j ' ' I hereby certify that on this day of , 190 — , before me came E. C, to me known to be the adminis- trator of the goods, chattels, and credits of C. D., late of the city of Albany, deceased {or, the executor of the last will and testament of B. A., late of the town of Watervhet, deceased ; or, trustee of H. N., of the town of Knox), and known to me to be the person described in and who executed the within in- strument and acknowledged that he executed the same as such administrator. {Signature and title of offi,cer.) Form No. 131. Acknowledgment by Corporation. (N. T. Real Prop. L. ; L. 1896, c. 547 ; § 258.) State of New York, County of *" On the day of , in the year , before me personally came , to me known, who, be- COMMON FORMS. 183 Acknowledgments. ing by me duly sworn, did depose and sa}', that he resided in ; that he is the president (or other officer) of the {name of corporation), the corporation described in and which executed the above instrument; that he knew the seal of said corporation ; that the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. {Signature and title of officer. ") {If such corporation have no seal, that fact must ie stated in flace of the statements required respecting the seal.) FormlVo. 123. By Firm by One Partner. State of New York, County of ' On this day of ,190 , personally appeared before me , personally known to me to be a member of the firm of ; and to me known to be the person de- scribed in and who executed the foregoing instrument in the firm name of , and he acknowledged that he executed the same as the act and deed of said firm of • — , for the uses and purposes therein mentioned. {Signature and title of officer.) Form ]Vo. 133. Certificate of County Clerk to be Annexed to the Certificate of the Officer Taking the Acknowledgment When it is to be Used in Another State. State of New York, ) . C\ ss. . OTJNTY OF ) I, K. B., clerk of the said county, and, also, clerk of the Su- 184 Bradbury's Lansing's forms and practice. Acknowledgments. preme Court, being a court of record held therein, do hereby certify that H. H., whose name is subscribed to the certificate of proof or acknowledgment of the annexed instrument in writings and indorsed thereon, was at the time of taking such proof or acknowledgment, a notary public in and for the County aforesaid, dwelling in said County, and duly author- ized by the laws of the State of New York to take the proof and acknowledgment of deeds and other instruments to be re- corded therein. And that I am well acquainted with the hand- writing of the said notary public, and have carefully compared the signature attached to said proof or certificate of acknowledg- ment with the signature of the said notary public attached to his oath of office and on file in this office, and verily believe that the signature to the said certificate of proof or acknowl- edgment is in the genuine handwriting of said notary public ; and that the said instrument is executed and acknowledged according to the laws of the State of New York. In Testimony "Whereof, I have hereunto set my hand, and affixed my official seal, as county clerk and clerk of said court, this day of 190 . Cleek. (Seal.) Form ]S"o. 134. Petition For a Subpoena to Compel a Subscribing Witness to Prove the Execution of a Conveyance. ( Real Prop. L., § 254.) To Hon. B. B., County Judge of Orleans County : The petition of C. C, respectfully shows, that one E. F. ex- ecuted and delivered to your petitioner a deed of a certain piece of property, and that G-. H., living in said county, is a witness to the execution of the said deed ; that the execution of the said deed has not been acknowledged or proved, and cannot be so proved without the evidence of said G. IT. ; that your petitioner has applied to the said G. H. and requested him COMMON FORMS. 185 Acknowledgments. to testify touching the execution of the said deed, and that the said G. H. has refused to testify touching the execution thereof, notwithstanding your petitioner has called on the said G. H., in company with an officer empowered to take the proof of the execution thereof. Wherefore, your petitioner asks your honor to issue a subpoena requiring the said G. H. to appear before you and testify touching the execution of said instrument. CO. Oeleans CotnNTT, ss. : C. C, being sworn, says, he has read the foregoing petition by him subscribed, and knows the contents thereof, and that the same is true. CO. Subscribed and sworn before me, this day of ,190 . {Signature and title of officer.') Forra Jfo. 135. Subpoena for Subscribing Witness to Appear and Testify. ( Real Prop. L., § 254.) To S. H., of the town of Albion, County of Orleans : In the name of the People of the State of JSTew York, j^ou are hereby summoned to be and appear before me at my office in the village of Orleans, in said county, on the day of , 19 — , at 2 o'clock in the afternoon, to testify and give evidence in regard to the execution of a certain paper writing, purporting to be a deed of conveyance from one E. F. to C. C. to which you are a subscribing witness, as appears by the npplication of the said 0. C. Whereof fail not. Given under my hand this day of , 19—. B. B., Orleans County Judge. 186 Bradbury's Lansing's forms and practice. Acknowledgments. Form No. 136. Proof of Service of Subpoena. State of New York, ) County of Orleans. \ ' ' H. K., being sworn, says, that on the day of , 19 — , at Albion, in said county, he served the within {or, foregoing) subpcena on the within {or, foregoing named S. H.), and that such service was made by showing the within {or, foregoing) original subpoena, and at the same time giving to and leaving with him a copy of the same, and at the same time paying him fifty cents, his fees. H. K. Sworn to before me this day of 19 — . B. B., Orleans County Judge. Form Ifo. 137. Warrant to Arrest. ( Real Prop. L., § 254.) To THE Sheriff of the Cottnty of Orleans, Greeting : In the name of the People of the State of JSTew Yorlc, you are hereby commanded forthwith to apprehend and take into custody G. H., of your county, and bring him before me, B. B., county judge of said county, at my olfice in the village of Al- bion, in the county of Orleans, to testify and give evidence touching the execution of a certain conveyance of real estate made by E. F. to C. C, to which deed of conveyance the said G. H. is a subscribing witness, as it appears to me, of record ; the said G. H., having been duly subpoenaed to be and appear before me and to testify and give evidence in regard to the execution of the said conveyance, and having neglected and refused to attend in pursuance of said subpoena. COMMON FORMS. 187 Acknowledgments. Givea under my hand and seal this day of 190—. B. B., (L. S.) County Judge of Orleans County. Form No. 138. Commitment of Witness Refusing to Testify. (Real Prop. L., § 254.) The People of the State of New York, to ant Constable OF THE County of Orleans, Greeting : Whereas, G. H., who resides in the town of Albion, county aforesaid, having been brought before me on a warrant to tes- tify and give evidence in regard to the execution of a certain deed or conveyance made by E. F. to C. C, has, without cause or reasonable excuse, refused to answer upon oath, touching the matters aforesaid. You are commanded forthwith to com- mit and deliver the said G. H. to the sheriff of the said county of Orleans, who is required to receive the said G. H., and to commit and imprison him in the jail of the said county, there to remain without bail and without the liberties of the jail until he shall submit to answer upon oath as aforesaid, or be discharged according to law. Given under my hand and seal this day of , 19 . B. ^.,Judge of the County of Orleans. {L. 8.) Form ]Vo. 139. Oath to be Administered to the Subscribing Witness. (Code Civ. Pro., § §845,846.) You do swear in the presence of the ever-living God, that you will true answers make to such questions as shall be put 188 bradbuey's Lansing's forms and practice. A cknowledgments. to you touching the execution of the deed of conveyance here shown to you. OE, You do solemnly swear, that you will true answers make to such questions as shall be put to you in regard to the exe- cution of the deed of conveyance here shown to you. So help you God. Form No. 130. Oath to be Administered to a Person Identifying the Parties or the Subscribing Witness to a Conveyance. You do swear in the presence of the ever-living God, that you will true answers make to such questions as shall be put to you, touching the identity of the subscribing witness {or, of the parties) to this conveyance. OK, You do solemnly swear, that you will true answers make to such questions as shall be put to you in regard to the identity of the subscribing witness (or, of the parties) to this convey- ance. So help you God. Form No. 131. Affirmation to be Administered to an Affiant. (Code Civ. Pro., § 847.) You do solemnly, sincerely and truly declare and affirm that the contents of this affirmation by you subscribed are true. COMMON FORMS. 189 Admissions. Form No. 132. Oath to a Deponent Sworn with the Uplifted Hand. (Code Civ. Pro., §848.) You do swear in the presence of the ever-living God that the contents of this affidavit by you subscribed are true. II. ADMISSIONS. No. FORMS. Page. 133. Full admission 190 134. Admission without waiver of defects , 190 1. The court wiU take judicial notice of the signatures of attorneys when subscribed to admissions and other papers of that character so the papers with such signatures are self proving without being acknowledged. Litchfield v. Burwell, 5 How. Pr. 341 ; Talman v. Barnes, 12 Wend. 227. 2. The date of admission may be shown to be incorrect, by affidavit. In this case the date in the admission of the service of a copy of a judgment was corrected, which correc- tion gave the party making the admission the right to appeal. Rogers v. Schmersahl, 2 Thom. & C. 668. 3. An unqualified admission of the service merely, by an attorney of a paper, usually is a waiver only of the mode of service and not of an irregularity as to time. Francis v. mtts, % Hill, 362. 4r. Withdrawing admission.^The court in its discretion may refuse to allow an admission of " due service of a copy of the within amended complaint," to be withdrawn where there is a doubt as to whether or not the attorney giving the admission was misled. Cdby v. Ihert, 6 Misc. 16 ; 25 Supp. 998. 5. Rubber stamp signature — The prevailing practice among attorneys in New York City of signing admissions 190 Bradbury's Lansing's forms and practice. Affidavits. with a rubber stamp does not seem to be the subject of the decisions of the courts in any reported cases. There seems to be no doubt, however, that such signatures do not have the binding effect that names subscribed with a pen do. Natu- rally the court cannot take judicial notice of printed signa- tures as being those of attorneys admitted to practice in that court, and doubtless when the authenticity of such signatures is questioned it will be necessary to give proof that they were authorized by the attorney whose name thus appears. In no case is it safe to depend upon admissions thus given where an important right depends upon the service of the paper in ques- tion. Form No. 133. Full Admission. Due and timely service of a true copy of the within [or of a of which the within is a true copy] is hereby admitted this day of 19 — . A. B., Attorney for . Form No. 134. Admission Without Waiver of Defects. Copy of within received this day of 19 — [or service of a copy of the within is hereby admitted this day of 190 — .J A. B., Attorney for III. AFFIDAVrrS. FORMS. NO. PAGE. 135. Venue 203 136. Commencement of affidavit 203 137. Jurat 204 COMMON FORMS. 191 Affidavits. NO. PAGE. 138. Jurat when affiant is illiterate or blind 204 139. Jurat when affiant is a foreigner 204 140. Jurat when taken before an ambassador, minister, consul, etc. . . 205 141. Jurat when taken before an officer of the Army or Navy in the Philippines, Porto Rico, or Cuba 205 1. Title. — Many of the older cases holding affidavits to be defective because of an insufficient title have been in effect overruled by the provisions of Code Qiv. Pro. § 728, which provides " the want of a title, or a defect in the title of an affi- davit does not impair it if it intelligibly refers to the action or special proceeding in which it is made. " This section has been liberally construed, and the cases are to the effect gener- ally, that any defect in the title which does not go to the merits of the proceeding, or is not prejudicial to a party will be disregarded, or may be supplied nxmo pro tunc. Butter- worth V. Boutilier, 22 Supp. 872; People ex rel., Watkins v. Board of Canvassers, 25 Misc., 444 ; Bell v. Moram., 25 App. Div. 461; 50 Supp. 982; Fawcett v. Vary, 59 JST. Y. 597; Tay- lor V. Tronooso, 76 N. Y. 599 ; Lamikin v. Oppenheim, 86 Hun, 27 ; 33 Supp. 367. 2. Venue.' — While the venue is an essential part of an affi- davit, if it is omitted, it may be supplied by amendment. Cook V. Staats, 18 Barb. 407 ; Clement v. Ferenheok, 1 City Ct. K. 57. But where in a proceeding to dispossess a tenant, a landlord's affidavit had no venue, and it did not appear where the justice of the peace who took it resided, it was held to be fatally defective. Pe(yple v. DeCamp, 12 Hun, 378. An oath to an assessment roll does not require a venue. Colman v. Shattuck, 62 IST. Y. 348 ; aff'g 2 Hun, 497. Where the venue of an affidavit of verification by a guard- ian ad Utem read 'Westchester County, while the affidavit purported to have been taken before a commissioner of deeds for the City of New York, it was held that the venue could be amended nunc pro tunc, and that it was not a jurisdictional defect. Baumeister v. Demuth, 84 App. Div. 394 ; 82 Supp. 831. 1 See note 1, page 203. 192 bhadbuhy's Lansing's fohms and practice. Aifidavits. Where an affidavit by its venue purports to have been taken in the City and County of E"ew York, the presumption is that the person signing himself commissioner of deeds is such in said place. People v. Cady, 105 N. Y. 299. 3. Presumption of regularity. — A person who has sub- scribed an affidavit as justice of the peace will be presumed, iu the absence of proof to the contrary, to have been duly com- missioned or appointed to that office. Ingraham v. United States, 155 U. S. 434. 4. By whom made. — Material facts involved in and pro- ceeding in litigation should be shown by the affidavit of a party and the affidavit of an attorney cannot be accepted in lieu of the affidavit of the client, at least until the necessity of making the motion, before the affidavit of a client can be procured is shown. Mutual Loan Association v. Lesser, 81 App. Div. 138 ; 80 Supp. 1112 ; Henry c& Co. v. Talcott, 89 App. Div. 76 ; 85 Supp. 98 ; Tomphins v. Continental Nat. Bh., 71 App. Div. 330 ; 76 Supp. 1099 ; Byan v. Buffy, 54 App. Div. 199 ; m Supp. 649. But if the attorney shows that he has personal knowledge of the facts alleged, the failure to produce the affidavit of the client is not fatally defective, particularly where the objection is made for the first time on appeal. Westinghouse C. K. & Co. V. Bemington Salt Co., 89 App. Div. 126 ; 85 Supp. 432. And the rule that an affidavit of an attorney wOl not be re- ceived to prove facts which are necessarily within the knowl- edge of his client, or to excuse a default or neglect on the part of a client has no relation to a case where the inadvertence or neglect which tbe party seeks to excuse, is that of the attorney and not of a client. Kent v. ^tna Insurance Co., 88 App. Div. 518 ; 85 Supp. 164. 5. Sworn to before attorney of record. — Although the practice forbids an attorney of record in an action from taking an affidavit to be used therein, such affidavit so taken, is not COMMON FORMS. 193 AfBdavits. entirely void. Baumeister v. DeimUh, 84 App. Div. 394 ; 82 Supp. 831. 6. A Judge cannot act in taking oaths or acknowledgments out of the jurisdiction of the State. JacJcson v. Humphrey, 1 Johns. 498. 7. Recitals and allegations of facts. — The only safe way to insert a statement of a material fact in an affidavit is by di- rect assertion and not by way of recital merely. For example, all such forms as " John Doe, of full age, residing in the City of New York, being duly sworn," etc., are dangerous for the reason that if any material fact is thus stated it will be disre- garded. The proper form is, "John Doe, being duly sworn, says he is of full age and resides," etc. This is a direct state- ment under oath of a fact while the other is a mere recital which has no probative force whatever. Staples v. Fairchild, 3 N. Y. 41. 8. The name of the affiant should appear in the body of the affidavit, but if it is omitted and the remainder of the af- fidavit is in proper form, the omission will be disregarded, or may be supplied by amendment. People v. Sutherland, 81 JST. Y. 1 ; rev'g 16 Hun, 192. 9. Jurat. — It is important that there should be a proper jurat to all affidavits, but if it is omitted it may be supplied by amendment nuno p7'0 tune. Fawcett v. Vary, 69 N. Y. 597. The form of the jurat varies in different jurisdictions ; in the United States Courts the form usually is " Subscribed and sworn to before me, this day of 190-." In the New York State Courts, the words " Subscribed and " are usu- ally omitted and are not necessary. 10. Affidavits taken within the State may be sworn to be- fore a large number of officers especially authorized by law to administer oaths. Code Civ. Pro. §§ 842, 843. They are usually taken before either a notary public or a commissioner "VoL. 1—13 194 Bradbury's Lansing's forms and practice. Affidavits. of deeds. In New York a notary public can only act in the county for which he is appointed, except in certain cases where he is authorized by law to file his certificate of appointment in a certain number of adjoining counties, in which case he can act in such adjoining county if he complies with the require- ments of the statute. 11. AiHdavits taken without the State to be used in a legal proceeding in the State must, unless the officer is specially men- tioned in the Statute, be taken before some officer who is au- thorized by the laws of the State where taken, to take proof and acknowledgments of deeds to be recorded therein. Code Civ. Pro. § 844. It is not sufficient that the officer is author- ized by the laws of the State where he acts to administer oaths, but he must be authorized to take acknowledgments. And be- fore an affidavit taken without the State before such an officer can be used in any legal proceeding in New York, it must be accompanied by the certificate of one of the officers mentioned in the statute to the effect that the officer administering the oath is authorized by the laws of his own State to take acknowl- edgments or proof of deeds to be recorded, and that the officer making the certificate is well acquainted with the handwriting of the officer taking the acknowledgment, and that he believes the signature attached to the certificate of acknowledgment is genuine. Real Prop. L. § 261 ; Code Civ. Pro. § 844. As the same officers who are authorized to take acknowledg- ments without the State, are also empowered to administer oaths to affiants and the authenticity of the officer's signature and his power to administer the oath must be shown in the same manner that is required in the case of an acknowledg- ment to a deed, or other paper, {Code Civ. Pro. § 844), the following table has been prepared to bring together in one place, and in form for convenient reference, the officers before whom affidavits may be sworn to and what authentication is required as to their signatures, official capacity, etc., in each case. COMMON FORMS. 195 Affidavits. TABLE SHOWING WHEN AXJTHENTICATION REQUIRED OTHER THAN THE CERTIFICATE OF THE OFFICER TAKING THE AC- KNOWLEDGMENT OR AFFIDAVIT OUT OF THE STATE. OmcEH. Ovi of State of New York hut in U. S.: Judge of Supreme Court, Circuit Court of Appeals, Circuit Court or District Court of United States. Reed Prop. L. § 249, subd. 1. Judge of the Supreme, Superior or Circuit Court of a State. Real Prop. L. § 249, subd. 2. Mayor of a city. Real. Prop. L. § 249, subd. 3. Commissioner appointed by the Governor. Real Prop. L. § 249, subd. 4. Any officer authorized by the laws of the State in which the acknowledg- ment is taken to take the acknowl- edgment or proof of deeds to be re- corded therein. Real Prop. L. § 249, subd. 5, as am'd by L. 1903, c. 419. In foreign Countries: Ambassador, minister plenipoten- tiary, minister extraordinary, minis- ter resident or charge d'affaires of the U. S., residing and accredited within the country. Real Prop. L. § 250, subd. 1. Consul general,- vice consul-general, deputy consul-general, consular or vice consular agent, consul or com- What Atjthentication Required. No authentication required. No authentication required. No authentication necessary. Real Prop. L. § 260. Does not have to be under seal. Real Prop. L. § 257. Authenticated by the Secretary of State. Real Prop. L. § 260, subd. 1. Authenticated by Secretary of State, or the clerk, register, recorder or prothonotary of the county in which the officer making the original certificate resided when the certifi- cate was made, or by the clerk of any court of that county having by law a seal. Real Prop. L. § 260, subd. 3. If by minister or charge d'affaires it must be under "his seal of office, or the seal of the legation to which he is attached. Real Prop. L. § 257. No other authentication seems to be necessary. Must.be under his "seal of office, or the seal of the consulate or lega- tion to which he is attached." Real 196 BRADBURY'S LANSING'S FORMS AND PRACTICE. Affidavits. Officer. mercial or vice commercial agent of the U. S. residing within the coun- try, secretary of legation at the post, port or place within the limits of the legation. Real Prop. L. § 250, subd. 2. Commissioner appointed for the purpose of the governor. Real Prop. L. § 250, subd. 2. A person specially authorized for that purpose by a commissioner un- der the seal of the Supreme Court, issued to a reputable person residing in or going to the country where the acknowledgment or proof is so to be taken. Real Prop. L. § 250, subd. 4. Within the Dominion of Canada any judge of a court of record; or any officer of such Dominion authorized by the laws thereof to take the ac- knowledgment or proof of deeds to be recorded. Real Prop. L. § 250, subd. 5. Within the United Kingdom of Great Britain and Ireland or the do- minions thereimto belonging, before the mayor, provost, or other chief What Authentication Required. Prop. L. § 257. No other authenti- cation necessary. Must be "under the seal of his office.'' Real Prop. L. § 257; and authenticated by the Secretary of State. Real Prop. L. § 260. (It is not entirely clear that commissioners appointed to act without the United States under Real Prop. L. § 250, subd. 3, were intended to be in- cluded in § 260, subd. 1, but they are not in terms excepted and seem to be included.) No further authentication neces- sary. By judge of a court of record au- thenticated by clerk of court. Real Prop. L. § 260, subd. 2. By other officer authorized by laws of Domin- ion to take acknowledgments au- thenticated by "Secretary of State, or the clerk, register, recorder or prothonotary of the county in which the officer making the original certifi- cate resided, when the certificate was made, or by the clerk of any court of that county having by law a seal." Real Prop. L. § 260, subd. 3. Under the officer's hand and the seal of the city or town. Real Prop. L. § 250, subd. 6, as am'd by L. 1903, c. 98. Also under his "seal of COMMO^r fORMS. 197 Affidavits. OrpicER. magistrate of a city or town. Real Prop. L. § 250, subd. 6, as am'd by L. 1903, c. 98, which omitted notaries public as officers before whom ac- knowledgments might be taken in Great Britain. Within the States comprising the Empire of Germany before a judge of a court of record or a notary pub- lic. Real Prop. L. § 250, subd. 8, added by L. 1904, c. 690. In Porto Rico, the Philippines and Cuba: Judge of a court of record acting within his jurisdiction. Real Prop. L. § 249o. Mayor or other chief officer of a city acting in such city. Real Prop. L. § 249a. A commissioner appointed for the purpose by the Governor of this State and acting within his juris- diction. Real Prop. L. § 249a. What Authentication Requihbd. office." Real Prop. L. § 257. (The amended- law requires two seals, to wit: the seal of the city or town and the seal of office of the official taking the acknowledgment. The statute makes no provision where either of such seals is lacking. The two provi- sions seem to be somewhat conflict- ing as § 250 requires the certificate to be under "his hand and the seal of such city or town,'' while the gen- eral provisions of § 257 are allowed to remain, requiring it to be under "his seal of office.") If by a judge under the seal of the court; if by a notary public under the seal of his office and the seal of the city or town in which the notary resides. Real Prop. L. § 250, subd. 8, added by L. 1904, c. 690. No other authentication required. No authentication except seal of court or officer; if no such seal a statement to that effect. Real Prop. L. § 249a. Same as above. But under Real Prop. L. § 257, if made by a mayor or other chief magistrate of a city or town without the U. S. it must be under "his seal of office" without any exception when there is no such seal as provided in § 249a. Same as above for judge of court of record. But query: Do commis- sioners under this section come with- in the provisions of Real Prop. L. § 260, requiring authentication by Secretary of State of signatures of 198 Bradbury's Lansing's forms and practice. AflSdavits. Officer. An officer of the U. S. Army rank of captain or above. Real Prop. L. §249a. (See Form No. 141.) Officer of the U. S. Navy rank of Ueutenant or above. Real Prop. L. § 249a. (See Form No. 141.) What Atjthentication Required. commissioners appointed by the Governor? Secretary of War. § 249a. Real Prop. L. Secretary of Prop. L. § 249o. the Navy. Real 12. A certificate authenticating the act of a notary public of another State which fails to specify that the notary public is authorized by the laws of that State to take the proof or ac- knowledgment of deeds to be recorded therein, is defective and the affidavit cannot be read in evidence in a proceeding in a court of this State. Stanton v. U. S. Pipe Line Co., 90 Hun, 35 ; Manheimer v. Dosh, 36 Misc. 85Y ; 74 Supp. 922. But see 8j?encer v. Fort Orange Paper Co., 1i App. Div. 74 5 77 Supp. 251, where the court suggests, but does not decide, that judicial notice may be taken of the power of a notary public to take and certify the acknowledgment and proof of deeds to be recorded in a sister State. In the last named case it was held also that the certificate of authentication was not so defective as to prevent the affidavit from being read in evidence, where it described the papers sworn to before the notary as an " acknowledgment " and not an " affidavit." A certificate of authentication that the notary before whom the affidavit was taken " was, at the date thereof a notary public in and for said county, duly authorized by the laws of Ohio to take the same, also to take acknowledgments and proof of deeds, or conveyances of land, tenements or hereditaments, situate and lying in said State of Ohio," is sufficient under Code Civ. Pro. § 844, and Eeal Property Law, § 249 ; Levy v. Zevy, 29 Misc. 374 ; 60 Supp. 485. Distinguishing Poss v. Wigg, 34 Hun, 192 ; and Turtle v. Turtle, 31 App. Div. 41 ; 52 Supp. 857. 13. Oatli ; how taken. — Under the Code and the cases con- COMMON FORMS. 199 Affidavits. struing it the form of the oath taken seems to be of very little importance. It is required that " when an oath is administered, the witness shall lay his hand on the Gospels and express assent to the oath, and shall be according to the present practice ex- cept that a witness need not kiss the Gospels." Code Civ. Pro. % 845 ; " except as otherwise specially provided." Id. " The oath may be administered in the following form to a person who so desires, the laying of the hand upon the Gospels being omitted : ' you do swear in the presence of the ever-living God.' While so swearing he may or may not hold up his hand at his option." Code Civ. Pro. § 846. Or he may affirm in the fol- lowing form : " You do solemnly, sincerely, and truly, declare and affirm." Code Civ. Pro. § 847. " If the court or officer before which or whom a person is offered as a witness, is satis- fied, that any peculiar mode of swearing, in lieu of, or in addition to, the laying of the hand upon the Gospels, is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness." Code Civ. Pro. § 848. But swearing falsely in any form is perjury. Code Civ. Pro. 861. 14. Striking out. — The court has the power to strike out scandalous matter from an affidavit in any proceeding. Matter of Magoun, 41 Misc. 352 ; 84 Supp. 940. Where the surrogate decided that an affidavit divulged a privileged communication and could not, therefore, be consid- ered, it was held that it should not be struck from the record. Matter of Gall, 49 App. Div. 3 ; 63 Supp. 157. 15. Foreign notary public. — It is said in HawJcins v. Pakas, (89 App. Div. 506 ; 57 Supp. 317 ; citing Turtle v. Turtle, 31 App Div. 49 ; 52 Supp. 857), that an affidavit taken before a notary public in Massachusetts cannot be read in evidence in a court in this State. The case was not decided on that point and it is doubtful if the point was fairly presented. By Code Civ. Pro. § 844, an affidavit may be taken without the State and used within the State if taken " before an officer author- 200 Bradbury's Lansing's forms and practice. Affidavits. ized by the laws of the State, to take and certify the acknowl- edgment and proof of deeds to be recorded in the State." As- suming as has been held that the word " State " in this sec- tion applies solely to the State of New York, it is provided by Real Prop. L. § 249, subd. 5, that an acknowledgment may be taken without the State by " any officer of the State in which the acknowledgment is taken authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, of which the certificate required by § 262 shall be evidence." This subdivision was amended by L. 1903, c- 419, by adding the words "in which the acknowledgment is taken," it having theretofore read : " Any officer of a State authorized," etc. There seems little doubt that under the Statute as it reads at present, a notary public of a sister State is competent to take an affidavit to be used in the courts of this State, if he is au- thorized by the law of his domicile to take the acknowledg- ment or proof of deeds to be recorded therein. 16. Affidavits on information and belief. — Whenever it is found necessary to present an affidavit which is made on the information and belief of the affiant, the rule which re- quires the best evidence obtainable in all legal proceedings should be carefully observed. Delaney v. Bouse, 91 App. DW. 437 ; 86 Supp. 880 ; Haskell v. Oshorn, 83 App. Div. 127 ; 53 Supp. 361 ; Price v. Levy, 93 App. Div. 274 ; 87 Supp. 740. While it is true that the courts will sometimes grant relief where the facts are shown on information and belief only, they require in all cases the names of the persons who have actual knowledge and that an adequate reason be given why the affi- davit of the person having actual knowledge is not produced. Empire Warehoiose Co. v. Ifallett, 84 Hun, 561 ; 32 Supp. 861 ; Levy V. Goldstein, 18 Misc. 639 ; 43 Supp. 774. For example, it must be shown that the affidavit of the person who has knowl- edge of the facts cannot be produced in time to be available, and mere inconvenience is not a sufficient reason for not pro- curing such an affidavit. Brewster v. Van Camp, 8 Supp. 588 COMMON FORMS. 201 Affidavits. After it is shown that the affidavit of the person having ac- tual knowledge of the facts cannot be produced, the affiant, who is making an affidavit on information and belief, should state first the persons who have actual knowledge and in what manner the knowledge was conveyed from such persons to the affiant. If the information was conveyed by letter or telegram or other written communication, the original, or sworn copies of the written communication should be attached to the affidavit. Thompson v. Best, 4 Supp. 229 ; memo, without opinion, 51 Hun, 641. If the communication was by word of mouth the affiant should state as nearly as he can the exact words used by the person who gave him the information. It is not per- missible for the affiant to state his conclusion from the words used by the person who has actual knowledge as this is the prerogative of the court, but the statements should be given in the same language which was used by the person with actual knowledge and the court permitted to draw its own conclu- sion. Biiell V. Yan Camp, 119 IST. Y. 160 ; Simmons v. Craig, 137 IST. Y. 550. Even though the affiant swears that he has personal knowl- edge of a transaction, this is sometimes insufficient, unless the circumstances of the case are such that it can clearly be seen, or reasonably inferred, that the affiant could have had such personal knowledge. Price v. Levy, 93 App. Div. 274; S7 Supp. 740 ; Wallace v. Baring, 21 App. Div. 477 ; 48 Supp. 692; Iloormann v. Climax Cycle Co., 9 App. Div. 579; 41 Supp. 710 ; Tucker v. Ooodsell, 14 App. Div. 89 ; 43 Supp. 460 ; James v. Signell, 60 App. Div. 75 ; 69 Supp. 680 ; Thomas V. Dickinson, 11 Supp. 436. Where the affidavit is made by the attorney and he swears that he has positive knowledge of the facts, without explaining how he received such knowledge, the affidavit will usually be deemed insufficient, unless he explains how he secured such knowledge. Crowns v. Yail, 51 Hun, 204 ; 4 Supp. 324 ; Thomas v. Dickinson, 11 Supp. 436 ; Simmons v. Hazard, 65 Hun, 612 ; 20 Supp. 508. 17. The same ; general rule. An affidavit on information 202 bkadbury's Lansing's forms and practice. Affidavits. and belief merely, without disclosing tlie sources of the infor- mation on the grounds of the belief, is a nullity and does not " prove " anything. Buell v. Van Camp, 119 IST. Y. 160 ; Siin- mons V. Craig, 137 N. Y. 550. The sources of the information and the grounds of the belief must be so stated that the judicial officer to whom the affidavit is presented may judge whether or not the information and belief rest upon a proper basis to invoke the jurisdiction of the court. Buell v. Van Camp, 119 K Y. 160. 18. A denial on information and belief, or a denial that the affiant has knowledge or information sufficient to form a belief, while allowed as a matter of pleading, will not over- come positive averments to the contrary in affidavits. Sim- mons V. Craig, 137 IST. Y. 550 ; Matter of McLean, 62 Hun, 1 ; 16 Supp. 417 ; People ex rel. Carleton v. Assessors of iV. Y., 7 Hun, 228. 19. Information received by telephone may properly be used, but it is always necessary for the affiant to state that he is acquainted with the person from whom he receives the in- formation and is familiar with his voice, and that he recog- nized the voice of the person from whom he received the in- formation as that of the individual who had such actual knowledge. Murphy v. Jaeh, 142 N. Y. 215 ; 31 Abb. N. C. 201. 20. Using affidavit second time.— There is no rule which prevents the using of the same affidavit a second time in an- other proceeding in the same action. Such practice may af- fect the weight to be given by the court to the averments in an affidavit thus used, but unless the circumstances are such (as by the lapse of time), as to cast doubt on the truth of the statements therein contained there seems to be no rule prohib- iting the necessary facts to support any legal proceeding to be shown by an affidavit used the second time. Mojarrieta v. Saenz, 80 IST. Y. 547; Levy v. Goldstein, 18 Misc. 639; 43 Supp. 774. COMMON FORMS. 203 Affidavits. Form No. 135. Venue.' State of New York, ) County of , > ss. City {or Town) of , ) Form No. 136. Commencement of Affidavit Proper. [Venue.] John Smith, being duly sworn^, deposes and says that he is over the age and twenty-one years^, and resides in the City and State of New York. That [here state facts]. ' The venue should indicate in all cases the place where the affidavit was taken. The greatest care should be exercised to have it show that the affidavit was taken within the territorial jurisdiction of the officer who administers the oath. Thus in the case of notaries pubhc in New York they can act only in the counties for which they are appointed, or in ad- joining counties, in some instances. The venue, therefore, should indicate that an affidavit sworn to before a notary public was taken in the county for which he was appointed. If taken by a notary public who is authorized to act in two or more counties the venue should show the county where the oath was actually administered, not the county for which the officer was appointed, provided, of course, that the oath was administered in a county different from that for which he was appointed. In the case of commissioners of deeds, appointed by local authorities, for cities, and of mayors and other local officers, the venue should, in each instance, name the particular city for which the official was appointed or elected. While the courts have power to allow amendments where there is a variance between the place where taken, as appears by the venue, and the territorial jurisdiction of the officer, as appears by his signature, such errors are liable to cause serious difficulties, and should be carefully avoided. 2 It should appear on the face of the affidavit that the affiant was sworn. 3 The above form is preferable to a mere recital, as for example: "John Smith, of fuU age and residing in the City and State of New York, being duly sworn," etc. In cases where it is necessary to show age or place of residence the form in this note is insufficient, as such a recital is not deemed to be a statement of a fact on oath and does not prove anything. 204 Bradbury's lanSing's forms and pracI'ICE. Affidavits. Form No. 137. Jurat' Subscribed and'^ sworn to [or afiBrmed] before me this day of 19 — . [Signatu/e of affiant.'] JOHN DOE, Notary Public, New York County. [Or, Notary Public, Kings County, N. Y". Certificate filed in New York County, or, Commissioner of Deeds for the City of New York.] Form No. 138. Jurat When Affiant is Illiterate or Blind. Subscribed and sworn to before me this day of 190-. The said deponent being blind [or illiterate] I read said afiidavit to him [or the said affidavit was read to him in my presence] and he seemed to understand the same. [Signature as above.] Form No. 139. Jurat When Affiant is a Foreigner," Subscribed and- sworn to before me this day of 1 See note 1, ante, as to the importance of having the venue and jurat agree as to the place where the affidavit was sworn. 2 The words "subscribed and" are not generally used in New York. They are more commonly found in affidavits presented to the Federal Courts. ^ While an affidavit of a foreigner who does not understand the English language, with a jurat as above, might be accepted by the court, a much safer way would be to annex an affidavit by the interpreter, to the effect that he understands both the English language and the language under- stood by the witness and that he correctly interpreted the affidavit to the deponent before it was sworn to. Or, a still better method would be, if time permits, to follow the practice prescribed in Code Civ. Pro. § 912, for depositions. That is, have the affidavit translated into the foreign language COMMON FORMS, 205 Affidavits. 19 — . The said deponent being a foreigner and not understanding the English language I first swore A. B., an in- terpreter, to correctly interpret the same to the deponent, and after such interpretation I duly administered the oath to said deponent. [^Signature as above.] Form No. 140. Jurat When, AflBldavit Taken Before An Ambassador, Minister, Consul, etc. Subscribed and sworn to before me the [describe official po- sition^ at in the Kingdom of [or in the Ee- public of, or otherwise as the case may be] on the day of 19—. In witness whereof I have hereunto set my hand and affixed the official seal of said embassy [or consulate] on the date last above written. Form No. 141. Jurat When Affidavit Taken Before Officer of Army or Navy in Porto Rico, the Philippines or Cuba.' (Real Prop. L.. § 249a.) Subscribed and sworn to before me, A. B., a captain [or higher officer] in the United States Eegular [or Volunteer] Army [or a lieutenemt or higher officer in the United States Navy] at in the Philippine Islands [or Porto Eico], at which place I am on duty as such oificer, this day of 19—. [Signature and title of officer.] which the deponent understands, and then present an affidavit by some one who understands both languages, to the effect that the foreign and EngUsh counterparts state the same facts and that each is a correct trans- lation of the other. ' Care should be taken to have the venue correspond with the statements of fact in the jurat, as to the place where an affidavit is taken. 206 Bradbury's Lansing's forms and practice. Allowance. ly. ALLOWANCE. NO. FORMS. PAGE. 142. Allowance of State Writ 206 1. Allowance of State writ. — The presiding judge of a court by which the said writ is awarded, or the judge who al- lows such a writ out of court, as the case may be, must sign an allowance thereof indorsed thereupon stating the date of the allowance. Code Civ. Pro. § 1996. 2. Issued without allowance. — It has been held under the old practice that a writ of coram noblis issued without an allow- ance could be allowed nuno pro tunc. Ferris v. Douglass, 20 Wend. 616. But this question does not seem to have been raised under the Code. Form No. 143. Allowance of State Writ. (Code Civ. Pro. § 1996.) Allowed this day of , 19- {Signature of Judge.) Justice of the Supreme Court of the State of New York. Or Presiding Judge of the Appellate Division of the Supreme Court of the State of New York, in and for the Judicial Department. COMMON FORMS. 207 Amendments. V. AMENDMENTS. NO. FORMS. PAGE. 143. Affidavit of attorney for leave to amend petition for writ of cer- tiorari 211 144. Order permitting amendment of petition for writ of certiorari.. 212 1. The sections of the Code applying to amendments, mis- takes, omissions, defects and irregularities are very broad in their scope, requiring the court to allow amendments where an injustice is likely to be done, and making it in the discre- tion of the court to cure all defects, except those which are jurisdictional. Code Civ. Pro. §§ 721-724. 2. A liberal spirit has been shown by the courts of New York in allowing amendments of process, pleadings and vari- ous proceedings in an action. As was said by the Court of Appeals in a recent case, in allowing the amendment of a sum- mons, after default by the defendant, so as to change the Christian name of the defendant : " We have not alluded to the decisions of the several special and general terms which the appellate division felt called upon to follovr. Their foun- dations were laid long before sections 721 and 723 of the Code came into existence as marked features of a distinctive legisla- tive policy to stop the sacrifice of things of real substance upon the altar of mere technicality, and hence a discussion of them can serve no useful purpose." Stuyvesant v. Weil, 167 N. Y. 421. " The old rule under which applications were denied where the purpose sought by an amendment was to set up uncon- scionable defenses has unquestionably been modified by later cases." Outtentag v. Whitney, 82 App. Div. 145 ; 81 Supp. 701. 3. Laches. — The only rule which the court seems to insist on and which is found running through all the cases, where motions to amend have been denied, is that the party seeking the amendment must move seasonably. Even after an inter- 208 Bradbury's Lansing's forms and practice. Amendments. locufcory judgment had been entered in an action and dui'ing the pendency of a reference directed by such interlocutory judgment the plaintiff was allowed to amend the complaint substantially enlarging his cause of action and which amend- ment, in practical effect, wiped out all the proceedings had theretofore, upon payment of the costs and disbursements theretofore incurred. Wilson v. Standard Asphalt Co., 81 App. Div. 102 ; 81 Supp. 8. The rule as to laches in applying for leave to amend should not be applied with the same strictness against municipal cor- porations that it is against individual suitors. Stemmler v. Mayor, etc., of N. Y., 45 App. Div. 573 ; 61 Supp. 403. 4. Amendments of particular proceedings are discussed throughout the vrork under the particular titles of different proceedings. Only the trend of the modern decisions is indi- cated in this chapter. Amendments of pleadings are particu- larly treated under that title. 6. A demurrer may be amended to correct a clerical error in respect to the name of the party. Blum v. Dabritz, T8 Supp. 207. 6. An order to show cause in which the return day is omitted in the original, but inserted in the copy served, may be amended nunc pro tunc. Matter of Quo Yadis Amuse- ment Co., 82 App. Div. 240 ; 81 Supp. 394. 7. A copy of a summons which does not contain the name of the plaintiff's attorney may be amended where the defend- ant has not been misled or prejudiced. ITull v. Ganandagua Electric Light Co., 55 App. Div. 419 ; 66 Supp. 865. 8. A petition for certiorari to review the assessment of real property may properly be amended where it is insuffi- cient. People ex. rel. JV. Y. Cen., etc., R. JR. Co. v. Feitner, 58 App. Div. 343 ; 68 Supp. 1059. COMMON FORMS. 209 Amendments. 9. Attachment papers entitled in a county other than that in which the action was brought may be amended on the hear- ing of a motion to vacate the attachment. Farquhar v. TFis- consin Condensed Milk Co., 30 Misc. 270 ; 62 Supp. 305. 10. A defective notice of appeal may be amended by order of the appellate division. Christian Feigenspan v. O'Brien, 46 App. Div. 629. Supp. A notice of appeal from two orders maybe amended by the court at special term by striking out all reference to one of them and making the undertaking conform thereto. John- son V. Manning, 75 App. Div. 288 ; 78 Supp. 98. 11. The venue of an affidavit on attachment maybe sup- plied by amendment. Fisher v. Bloomherg, 74 App. Div. 368 ; 77 Supp. 541. 12. A naturalization certificate cannot be amended to con- form to a change in the Christian name of the citizen, since amendments are allowed only to correct errors. Matter of Nigri, 32 Misc. 392 ; 66 Supp. 182. 13. Findings may be amended even after service of a notice of motion for a new trial where the amendment does not affect the substantial rights of the parties. Starbuck v. Stur- luok, 62 App. Div. 437 ; 71 Supp. 104. 14. A decision of the court may be amended to correct in- advertent errors. OalUgan v. OaUigan, 73 App. Div. 71; 76 Supp, 786. 15. Judgment It has been held that a judgment in fore- closure after entry but before sale might be amended by di- recting the sale to be made subject to the life estate of one of the parties, which amendment was made without notice to the defendant who did not appear in the action. Brown v. Bechmann, 53 App. Div. 257 ; 65 Supp. 740. Vol. 1—14 210 Bradbury's Lansing's forms and practice. Amendments. A judgment may be amended to correct clerical mistakes. Morrison v. Metropolitcm EL By. Co., 60 App. Div. 180 ; 70 Supp. 65. 16. A surrogate's decree cannot be amended in a matter of substance after the time to appeal therefrom has expired. Matter of Seaman, 63 App. Div. 49 ; 67 Supp. 376. 17. A surrogate's order granted five years previously fix- ing a transfer tax cannot properly be amended by making a deduction from the amount as originally fixed. Matter of Von Post, 35 Misc. 367 ; 71 Supp. 1039. 18. A claim against an estate which has been referred to a referee to hear and determine may be amended by the re- feree by increasing the amount of the claim. Lounsbury v. Sherwood, 63 App. Div. 318 ; 65 Supp. 676. 19. Where the statute of limitations has run against a claim and an amendment would have the effect of bringing the claim into a pending action, it has been held that the amendment should not be allowed to bring in such a claim as an entirely separate and new cause of action. Quimhy v. Claf- lin, 27 Ilun, 611 ; appeal dismissed, 91 JST. Y. 656. But it has also been held that a complaint might be amended, even after judgment, although the statute of limitations would apply to the claim as set up in the amended complaint. Tru- man V. Lester, 71 App. Div. 612 ; 75 Supp. 548 ; Hatch V. Cent. Nat. Bh., 78 N. Y. 487. And see Boyd v. If. 8. Mort- gage & Trust Co., 84 App. Div. 466 ; 82 Supp. 1001. 20. Where application made. — An application to amend a record of a court should be made to the court whose record it is proposed to amend, and not to an appellate court. Binghampton Opera House Co. v. City of Binghampton, 156 N. Y. 651 ; States Y. Cromwell, 104 N. Y. 664. COMMON FORMS. 211 Amendments. Form No. 143. Affidavit of Attorney for Leave to Amend Petition for Writ of Certiorari. [Title.] CouNTT OF , ss. : A. B., being duly sworn, deposes and says that he is the attorney for the relator in this proceeding. That when be drew the original petition herein he understood that the alle- gations therein were sufficient to fully raise the issue of in- equality in the assessment, but he has been informed that counsel for the tax commissioners claims that such allegation as is contained in the original is not sufficient to properly raise that issue, and has only recently advised deponent that such claim was made. Deponent therefore desires to amend the petition by making the allegation clear, so that the prin- cipal question sought to be raised in. this proceeding may be determined and the relator not thrown out of court on the ground that its allegation was not sufficient to raise the issue which must be determined in this proceeding. Your petitioner therefore requests that an amendment be allowed to the orig- inal petition by inserting at the end of paragraph thereof the following : " All other real property in the City of New York was assessed by said commissioners in the year , for the purposes of taxation for said year at sixty-three per cent of its fair marketable value, whereas all the property of your petitioner owned and leased as mentioned in this proceed- ing was assessed at more than one hundred per cent of its fair marketable value." ' Sworn to, etc. iThis affidavit was held sufficient in People ex rel. N. Y. Central &c. B. Co. V. Feitner, 58 App. Div. 343; 68 Supp. 1058. 212 bradbuky's Lansing's forms and practice. Amendments. Form No. 144. Order Permitting Amendment of Petition for Writ of Certiorari.' {As in form, for court order reciting the motion for the amendment, the papers filed and the coxmsel appearing am,d then conclude as follows) : Ordered, that the petition filed by the relator herein, veri- fied on the day of , 190 , and filed in the ofiice of the clerk of the Supreme Court, in the County of , on the day of , 19 — , be, and the same is, hereby amended so as to add to the paragraph thereof mai'ked " JSTinth " the following allegation : {here state new matter which it is desired to add). {Or, ordered, that the petition filed in this proceeding, veri- fied the day of , 19 — , and filed in the office of the clerk of the Supreme Court, in the County of , on the day of , 19 — , be, and the same is, hereby superseded and amended so as to read according to the amended petition verified the day of , 19 — , and filed in the office of the clerk of the Supreme Court, in the County of , on the day of , 19 — , with the papers on this motion to amend said petition, and service of a copy of said amended petition on the coun- sel for the respondent on or before the day of , 19 — , shall be deemed sufficient, and said respondent shall have until the day of , 19 — , to answer said amended petition, or make any motion in respect thereto as he may be advised by his counsel.) 1 This form, with such variations as will readily suggest themselves, may be used for almost any amendment it is found necessary to make. COMMON FORMS. 213 Bonds and Undertakings. VI. BONDS AND TTNDEETAKINGS. NO. FORMS. PAGE. 145. Bond in action of legal proceeding, general form 223 146. Undertaking in action or legal proceeding, general form 225 147. Official bond 228 148. Indemnity bond 227 149. Guardian's bond on application to sell infant's real estate 227 150. Receiver's bond, general 229 151. Receiver's bond in supplementary proceedings 230 152. Mortgage bond, with interest, insurance, tax, assessment, re- ceiver's and gold coin clauses 231 153. Undertaking on attachment 233 154. Undertaking on security for costs 234 155. Undertaking on removal of action into the City Court of the City of New York 235 156. Undertaking on appeal to the Court of Appeals 236 157. Undertaking on appeal from order, without stay 237 158. Notice of filing of bond or undertaking 237 159. Notice of exception to sureties 238 160. Notice of justification of sureties 238 161. Affidavit in proceeding by surety on bond of a trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary to be relieved from further liability on said bond 240 162. Order requiring trustee or other fiduciary to furnish new bond . . 241 163. Order requiring trustee or other fiduciary to account after ffiing a new bond 242 164. Order removing trustee or other fiduciary and compelling him to account upon failure to file new bond 242 1. Difference between a bond and an undertaking. — An undertaking under the Code amounts practically to the con- dition found in a comiiion-Iaw bond, which was formerly re- quired in many cases where now, by the simplified procedure, the less formal undertaking has been substituted. Bonds are still given by receivers, trustees, administrators and other fiduciaries, conditioned upon the faithful performance of their duties, and sometimes a bond is required as a condition to the granting of relief of a temporary or preliminary character, but in most statutory proceedings undertakings have been sub- stituted in their places. 2. Seal. — A bond is usually under seal while an undertak- ing is not. As a seal only raises a presumption of a considera- tion, which may be rebutted, practically the only legal differ- ence between a bond and an undertaking is that the former 214 Bradbury's Lansing's forms and practice. Bonds and Undertakings. comes under the twent}^ years' statute of litnitations while the latter comes under the six years' statute. 3. Title. — A bond or undertaking given in an action or a legal proceeding is invariably entitled therein for the purpose of identification. 4. Date. — While no penalty attaches to a failure to date a bond or undertaking, good practice, of course, requires that they should be correctly dated, and the date sometimes becomes important when it is necessary to sue on such an instrument. 5. Formal requisites. — A bond or undertaking required by statute to be given by a person to entitle him to a right or privilege, or to take a proceeding, is sufficient if it conforms substantially to the form therefor pi'escribed by the statute and does not vary therefrom to the prejudice of the rights of the party to whom or for whose benefit it is given. Code Civ. Pro. § 729. Under this section it has been held that a defect in an affidavit of justification upon an undertaking to procure a warrant of attachment in a justice's court, consisting in the fact that the affidavit, while actually subscribed and sworn to by the surety, purported in the body thereof to have been made by one of the plaintiffs, was not jurisdictional, and the justice might allow an amendment. Bell v. Moran, 26 App. Div. 461 ; 50 Supp. 982. 6. An undertaking must be acknowledged or proved and certified in the same form as a deed. Code Civ. Pro. § 810 ; Rule 5, Gen. Rules of Prac. 7. One surety is sufficient on a bond, although the word " sureties " is used in connection therewith, unless there is an express provision requiring two sureties or more. Code Civ. Pro. § 811. Bat the court has discretion to require two sureties and the invariable rule in the first department is to require two individual sureties upon an undertaking given to procure a vfarrant of attachment. Goldmark v. Magnolia Metal Co., 28 App. Div. 264 ; 51 Supp. 68. 8. A party need not join with his sureties in a bond or undertaking unless there is an express provision of law requir- ing him to join. Code Civ. Pro. § 811. COMMON FORMS. 215 Bonds and Undertakings. 9. Consideration. — Upon an undertaking, given to perfect an appeal to the Court of Appeals, a consideration will be pre- sumed and need not be expressed. Oein v. Little, 43 Misc. 421 ; 89 Supp. 488. An undertaking given to secure the release of a defendant under an order of arrest, v^^hich undertaking is not in the form prescribed by the statute is still valid as a common-law agree- ment, and words indicating that it is a statutory undertaking in court, may be treated as surplusage. Carr (& Hobson v. Ster- ling, 114 IS". Y. 558. 10. Countersigning check toy surety Agreements be- tween trustees and the sureties on their bonds should have read into them the provisions of Code Civ. Pro. § 813 so that the court is empowered to make orders relating to the dis- positions of such trust funds without the assent of the surety being evidenced by countersigning a check for a draft upon such funds. Matter of Chesterman, 75 App. Div. 573 ; 78 Snpp. 345. 11. The surety may be a surety company, but if a natural person he must be a resident of the State and a householder or a freeholder therein. , Code Giv. Pro. §§ 579, 812. 12. Householder. — One who rents and occupies a portion of a building as an office for business purposes only. Held, to be a " householder," for the purposes of bail. Somerset Sav. Bk. V. Huych, 33 How. Pr. 323. Also an unmarried man who was a boarder but who rented and run a mill was held to be a householder within the meaning of Code Civ. Pro. § 812. Delamater v. Byrne, 59 How. Pr. 71. Generally a person having and providing for a household. Bouvier Law Diet. 13. A freeholder is the owner of a freehold estate; that is an estate in land for the life of himself or of another person at least. See Boii/vier Law Diet, and cases cited. 14. Attorneys as sureties^ — " In no case shall an attorney 216 bradbuky's Lansing's forms and practice. Bonds and Undertakings. or counselor be surety on any undertaking or bond required by law, or by these rules, or by any order of a court or judge, in any action or proceeding, or be bail in any civil or criminal case or proceeding." Rule 5, Oen. Rules of Prac. This rule does not apply to one who has relinquished the practice of the law. Stringham v. Stewart, 8 Civ. Pro. E,. 120 ; Evans v. Harris, 47 Super. Ct. (J. & S.) 366. An undertaking is not void because an attorney is the surety, and if accepted without objection the surety becomes liable, even though an attorney. Ihibhard v. Gioquel, 14 Civ. Pro. R. 15. 15. Insolvency of the surety upon a bond given in an ac- tion of replevin does not give the court power to require the ])laintiff to give a new undertaking. Hohenstein v. Westmin- ster Candle Co., 31 App. Div. 11 ; 52 Supp. 235. 16. Approval. — The court or a judge thereof in approving a bond or undertaking acts judicially on the evidence before bim.^ In some instances the approval is founded on the affi- davit of justification alone. In a few cases it is final and in others merely temporary, the adversary party having the right to except and the final approval only being made after the sureties have been examined. While without the approval of a judge, an undertaking given to perfect an. appeal is null, such approval may be had by amendment nunc fro tunc. Travis v. Travis, 48 Hun, 343 ; Cla/)'h v. Hooper, 69 Hun, 445 ; 23 Supp. 447. An agreement by the attorneys for the respective parties that the court may approve an undertaking on appeal, without justification by the sureties, is sufficient approval to bind the sureties. Gopsill v. Decker, 4 Hun, 625. 17. The justification of sureties on a bail bond is regulated ' "Whenever a justice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal securities to justify, or, if the security offered is by way of mort- gage on real estate, to require proof of the value of such real estate. Rule 5, Gen. Rules of Prac. COMMON FORMS. 217 Bonds and Undertakings. by Code Civ. Pro. § § 5Y6 to 581, and these sections are made applicable to a number of other proceedings where an under- taking is required by the Code ; for example, to sureties on an undertaking given to discharge an attachment. Code Civ. Pro. % 690 ; to an undertaking given in replevin, Id. % 1 705 ; to an undertaking given upon security for costs. Id. % 3275. Where a bond is given accompanied by ao affidavit of justi- fication and is approved ex parte by a judge of the court, this does not necessarily cut off the plaintiff's right to except to the sureties, and where he serves a notice of exception on the sheriff within ten days after the undertaking was served on him, he proceeds regularly, and the bail must justify in the manner prescribed by the Code. Hetsch v. Biishop, 61 Super. Ct. (J. & S.) 441 ; 20 Supp. 837. But no right is given to ex- cept to sureties on an undertaking given to procure a warrant of attachment. Code Civ. Pro. § 640. 18. If sureties fail to justify after, an exception filed to them, and the new undertaking is given on appeal, a new no- tice of exception must be filed within the ten days required by Code Civ. Pro. § 1335, or the appeal becomes perfected with- out justification of the sureties. Blake v. Iron Mfg. Co., 75 K Y. 611. 19. If a party excepting to sureties fails to attend at the time specified at the notice of exception, he waives the ex- ception, although the sureties also fail to attend. Balla/rd v. Ballard, 18 N. Y. 491. 20. If sureties fail to justify upon notice, the sureties are relieved from any liability under the bond. Oinsburg v. Kuntz; 60 Hun, 504; 15 Supp. 237; Manning v. Oould, 90 N. Y. 476. 31. A reference may be ordered by the court to determine the sufficiency of the sureties to an undertaking. Code Cim. Pro. § 827. 218 BRADBURY'S LANSING'S FORMS AND PRACTICE. Bonds and Undertakings. 22. Justifying in smaller amount. — Where the penalty of a bond, or twice the sum specified in the undertaking, exceeds $5,000, the court may, in its discretion, allow the sum in which the surety is required to justify to be made up by the justifica- tion of two or more sureties, each in a similar sum, but in that case no surety can justify in a sum less than $5,000. Code Cm. Pro. % 813. See also Id. % 579. 23. Justification by a surety company — Although a surety company may justify by an examination of one of its officers having knowledge of its financial affairs, and is not confined to the method prescribed by L. 1895, o. 1Y8, by filing under order of the court a sworn statement of its condition, and also submitting to an examination, there is no statutory or other authority for receiving as evidence on such justification a cer- tified copy of the annual report of the company filed in the office of the superintendent of insurance. Haines v. Hein, 67 App. Div. 389 ; 73 Supp. 293. 21. Default on justification. — "Where bail is approved by default after due notice of justification was given to the plain- tiff and he did not appear, it was field that the court had no power to open the default. Lewis v. Stevens, 93 N. Y. 57. 25. Replevin. — An undertaking on replevin need not con- tain affidavits of justification by the sureties, but it seems if it does require such affidavits, they may be supplied by amend- ment. Clarh v. Hooper, 69 Hun. 445 ; 23 Supp. 447. 26. The amount in which a surety must justify on a bond is the amount of the penalty thereof ; in an undertaking tAvice the sum specified therein. Code Civ. Pro. § 812. But see Code Civ. Pro. %% 813 and 579, where two or more sureties justify in a smaller sum than the penalty of the bond or twice the amount specified in the undertaking. 27. The afBdavit of justification of an undertaking given to discharge an attachment is considered as made in the action COMMON FORMS. 219 Bonds and Undertakings. and should not be sworn to before the attorney for the defend- ant. Bliss V. Molter, 58 How. Pr. 112. 28. Amendments. — "Where a bond or undertaking is defect- ive, the court, officer or body which would be authorized to receive or to entertain a proceeding in consequence thereof if it was perfect, may, on the application of the persons who exe- cuted it, amend it accordingly, and it shall thereupon be valid from the time of its execution. Code Civ. Pro. § 730. An order appointing a receiver which requires him to give a bond with only one surety, in violation of the statute, is not void, and an amendment may be allowed to make the proceed- ing conform to the statute. Holmes v. McDowell, 15 Hun, 585 ; a£f'd without opinion, 76 N. T. 596. "Where the plaintiff's name appeared in the body of the affi- davit of justification, it was held that the undertaking might be amended by inserting the surety's name therein. Bell v. Moran, 25 App. Div. 461 ; 50 Supp. 982. 29. Release of surety. — Any surety on a bond of a trustee or other fiduciary may be relieved from further liability on the bond, and compel the principal to account by a proceed- ing regulated by Code Civ. Pro. § 812. This section ap- plies to surety companies as well as to individual sureties. Matter of Tfiurher, 162 JST. Y., 244 ; rev'g 43 App. Div. 528 ; 60 Supp. 198. Section 812 of the Code as to relieving a surety on the bond of a trustee or other fiduciary contemplates two separate pro- ceedings; one of which is brought by the surety and is ex parte as to the creditors of the trust estate and relieves the surety for future acts or omissions of his principal ; and the other is upon notice to all parties interested for the release of the surety from liability for all acts and omissions of the prin- cipal, both past and present. Sielert v. MilhanTc, 95 App. Div. 566; 88 Supp. 993. "Where a principal is required to file a new bond at the in- stance of a surety on the old bond, the liability on tbe old 220 Bradbury's Lansing's forms and practice. Bonds and Undertakings. bond terminates and attaches on the new bond at the date of the order requiring the principal to account, or on the date of the filing of the new bond. Siebert v. Milhcmk, 95 App. Div. 566 ; 88 Supp. 993. 30. A surety company, authorized by the laws of this State to transact business herein, may execute any such bond or undertaking alone, if not more than two sureties are required, and the execution by said surety company shall be equivalent to the execution by two sureties. Code Civ. Pro. § 811. 31. Change of parties. — An undertaking given in a legal proceeding is not affected by the fact • that there is a change of parties to the action, but the sureties still remain liable. Code Civ. Fro. § 815. 32. Filing. — Unless there is a special provision of law to the contrary, a bond or undertaking required to be given in legal proceeding must be filed with the clerk of the court. Code Civ. Pro. § 816. In default of which filing any party to the action may move to vacate the proceeding or order as if no bond or undertaking had been given. Pule 4, Gen. Pules of Prao. Each bond or undertaking must be " entered at large " by the clerk in a book kept for that purpose. Pule 7, Gen. Pules of Prao. 33. Liability of surety. — The liabilities of sureties on an official bond wiU be measured by the language of the statute under which the bond was given, and not by the provisions of the bond, if there is a variance between the statute and the bond. City of Mt. Yernon v. Kenlon, 97 App. Div. 191 ; Supp. . A surety can only be held liable according to the language of the undertaking fairly construed. Bristol^. Graff, 79 App. Div. 426 ; 80 Supp. 39. A voluntary undertaking given by the appellant upon an appeal to the general term from an order denying a motion COMMON FORMS. 221 Bonds and Undertakings. for a new trial, without an order staying the proceedings upon the judgment in the action by reason thereof, and therefore ineffectual to accomplish that purpose, is not enforcible by the respondent even as a common-law contract, where he has not forborne proceedings for the collection of the judgment, upon the appeal from which the undertaking was given, and there is nothing from which a mutual agreement can be inferred that proceedings on the judgment should be stayed in con- sideration of the giving of the undertaking, or from which a request for forbearance, acted upon by the respondent, can be inferred. Carter v. Hodge, 150 N. T. 532. An undertaking given on appeal from an order, which does not have the effect of staying the execution of the order, and is therefore ineffectual, and it does not appear in an action on the undertaking that the respondent in the appeal refrained from acting under the order by reason of the undertaking, no liability can be enforced against the surety in the undertaking. Mossein v. Empire State Surety Co., 97 App. Div. 230 ; 89 Supp. 843. Where an undertaking given on appeal to the general term, from a decree in a foreclosure suit, instead of being in the form prescribed by Code Civ. Pro. § 1331, was in the form pre- scribed by § 1327 to stay an execution on a money judgment, and the appeal resulted in an affirmance of the judgment, and in the meantime the property had been sold under the fore- closure of a prior mortgage, it was held that while the under- taking was valid as a common-law agreement, the defendants were only liable for costs, as no money judgment was decreed in the original suit. Concordia Savings & Aid Assn. v. Read, 124 N. T. 189. An undertaking given on appeal from a judgment in replevin was executed in the form prescribed to stay execution of a money judgment, but was properly signed, acknowledged, ap- proved and filed, and was treated as being sufficient to stay proceedings on a money judgment by both parties, and it was held that the surety thereon was bound thereby. Goodwin v. Btmzl, 102 N. T. 224. 222 Bradbury's Lansing's forms and practice. Bonds and Undertakings. An undertaking given upon an appeal to the Court of Ap- peals which contains an obligation not required by the statute, is not enforcible as to such obligation without a special consideration appearing therefor, and where such considera- tion does appear it is enforcible as a common-law undertaking. Nein v. lAttle, 43 Misc. 421 ; 89 Supp. 488. If an appellant gives an undertaking on appeal, which is not joint and several in form as required by the statute, which undertaking is accepted by the respondent, the surety cannot thereafter successfully defend an action on the ground that it was not in the form required by the statute. Denike v. Denihe, 61 App. Div. 492 ; 70 Supp. 629. A bond to secure a liquor tax certificate, the condition of which was that the principal would not violate any provision of the hquor tax law, and there was added, " or any act amendatory thereof or supplementary thereto," it was held that this was not such a variance from the statute as affected the bond when the violation complained of was of an amend- ment in force when the bond was executed. Lyman v. Brucher, 26 Misc. 594 ; 66 Supp. 76Y. The discontinuance of a replevin suit, effected by the failure of the plaintiff to appear at the trial in the municipal court, creates a liability against the surety on the replevin bond. Rogers v. TJ. 8. Fidelity & Ouaranty Oo., 84 Supp. 203 ; but where the defendant does not demand the return of the goods, a mere discontinuance of the replevin action, on payment of the costs, is not sufficient to create a liability against the surety. Freeman v. U. S. Fidelity & Guaranty Co., 43 Misc. 364 ; 87 Supp. 493. A surety on a receiver's bond is not liable after an account- ing by the receiver, unless the surety had notice of the pro- ceedings for an accounting as required by Code Civ. Pro. § 715. Stratton v. City Trust, etc., Co., 86 App. Div. 551 ; 83 Supp. 780. In an action against a surety on an undertaking to discharge a mechanic's lien,the surety is liable for the costs on a recovery, although they make a total in excess of the sura specified in COMMON FORMS. 223 Bonds and Undertakings. the undertaking. Held v. City of New York, 83 App. Div. 509 ; 82 Supp. 426. A judgment of the Court of Appeals, reversing a judgment and directing a new trial, " with costs to abide the event," ter- minates any liability" of the surety on the bond given to perfect the appeal to the Court of Appeals. Jackson v. Lawyer^ Surety Co., 95 App. Div. 368 ; 88 Supp. 5Y6. "Where two persons are arrested under the same order, and one undertaking is given running to both of them, and the order of arrest is vacated as to one, and a judgiuent entered ao-ainst the other, the one as to whom the order is vacated may maintain an action against the sureties on an undertaking. Krause v. Rutherford, 81 App. Div. 341 ; 81 Supp. 465. The sureties on a marshal's bond are liable for the action of the marshal in attaching and selling a person's goods under a process running against another person. Fohs v. Bain, 39 Misc. 316 ; Y9 Supp. 8Y2. Form No. 145. Bond in. Action or Legal Proceeding, General Form. (Code Civ. Pro. § 812.) Enow all Men ly these Presents: That we, A. B., of merchant, C. D., of , banker [and E. F., of merchant], are held and firmly bound unto G. H. \or to the people of the State of JSTew York], in the sum of dol- lars, to be paid to the said G. H. \pr to th/said people], or to his \pr their] certain attorney, executor, administrators or as- signs \or successors or assigns] : For which payment, well and truly to be made, we bind ourselves and our heirs, executors or administrators, jointly and severally, firmly by these presents. Sealed this day of , in the year of our Lord one thousand nine hundred and . The condition of this obligation is such, [*] that if the above bounden, A. B. [his heirs, executors or administrators], shall and do well and ''truly \staU condition of bond], then the pre- 224 Bradbury's Lansing's forms and practice. Bonds and Undertakings. ceding obligation to be void, otherwise to remain in full force and virtue. A. B. [l. S.J C. D. [l. s.] E. F. [l. 8.] Sealed and delivered in presence of State of New York, ) County, ) On this day of , 19 — , personally came before me, A. B. [C. D. and E. F.], to me known to be the individuals described in and who executed the foregoing instru- ment and to me [severally] acknowledged that [they] executed the same.* I. J. [official title]. State of New Yoek, \ Coimty, \ C. D. [and E. F.], being [severally] duly sworn [each for himself], deposes and says, that he is [one of] the sureties [or the surety] named in the foregoing bond ; that be is a resi- dent of and a householder [or freeholder] within the State, and is worth the sum of dollars [amount of penalty of bond, or twice the sum specified in undertaking], over all the debts and liabilities which he owes, or has incurred, and ' To be acknowledged or proved and certified in lilce manner as a deed to be recorded. Code Civ. Pro. § 810; Rule 5, General Rules of Practice. A bond or undertaking given by a party, without a surety, must be ac- companied by his affidavit as above. Code Civ. Pro. § 812. A party need not join with his sureties, unless the provision requires him to execute the same, and the execution thereof by one surety is sufficient, al- though the word ''sureties" is used, unless the provision requires two or more sureties. And whenever two or more sureties are required a bond executed by a fidelity or surety company authorized to transact business in this State shall be equivalent to the execution by two sureties. Code Civ. Pro. § 811. An attorney or counsellor is prohibited, by Rule 5 Gen. Rules of Prac., from being surety on any bond or undertaking given in legal proceedings. COMMON FORMS. 225 Bonds and Undertakings. exclusive of property exempt by law from levy and sale under execution. CD. [E. F.] Sworn to and subscribed before me this day of - •e me, ) ,19— .( I hereby approve of the foregoing bond [or undertaking], as to its form and manner of execution and as to the sureties therein mentioned. Dated , 19—. A. O., Judge [or Justice] of Court. [or , County Judge]. Foi'in No. 146. Undertaking in Action or Legal Proceeding, General Form. (Code Civ. Pro. § 812.) [Title.] "Whereas [reciting facts'] : Now, therefore, we, A. B., of [state occupation]^ and C. D., of [state occupation], do hereby, jointly and severally undertake [to and with E. F.], pursuant to the statute; that [state terms of undertaking]. Dated , 19—. A. B. In the presence of ■ C. D. [Acknowledgment, ^ justification and approval as in Form No. IJiS. 1 An undertaking offered by defendant, acknowledged before his attorney, and the affidavit of the sureties in which is sworn to before such attorney, cannot be received; e. g., to discharge an attachment. Bliss v. Molter, 8 Abb. N. C. 241; 58 How. Pr. 112. Vol. I.— 15 226 Bradbury's Lansing's forms and practice. Bonds and Undertakings. Form No. 141'. Official Bond. Know all Men hy these Presents, That we, A. B. and C. P., residing at No. street, in the city of , State of New York are held and firmly bound unto the People of the State of New York {or to E. F.), in the penal sum of dollars, to be paid to the County of (or City or Town of as the case may he) for which payment, well and truly to be made, we do bind ourselves, our heirs, executors and ad- ministrators, firmly by these presents. Sealed with our seals, and dated the day of in the year of our Lord one thousand nine hundred and . Whereas, the above bounden A. B. has been {state the posi- tion to which princijial has heen appointed or elected). Now the condition of the above obligation is such, that if the said A. B. shall, will and truly {give duties required hy statute or otherwise) then the above obligation to be void, else to remain in full force and virtue. Signed and sealed m the presence of A. B. CD. State of New Yoek, ) CouNTy OP i On the day of 19 — , personally appeared before me the above named A. B. and 0. D. known to me, and to me known to be the same persons described in, and who executed the above bond, and severally acknowledged that they executed the same. State of New Yoek, \ . CouNTT of \ C. D. in the within bond named, being duly sworn, doth de- pose and say, that he is a resident and free (house) holder with- in the State of New York, and is worth twice the sum specified in the above bond over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. Sworn to before me this \ C. D. day of 19—. j {Signature and title of officer). COMMON FORMS, 227 Bonds and Undertakings. Form No. 148. Indemnity Bond. Know all Men by these Presents, That A. B., of is held and firmly bound unto C. D., 6l in the penal sum of dollars, lawful money of the United States of America, to be paid to the said C. D., his executors, admin- istrators or assigns : for which payment, well and truly to be made I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal and dated the day of one thousand nine hundred and . The condition of this obligation is such that should E. F., will and truly pay to C. D., on or before the • day of 19 — , the full amount of a judgment for dollars, which judgment was recovered by said C. D. against the said E. F., and filed and docketed in office of the clerk of the Supreme Court, in the County of on the day of 19 — , then the above obligation to be void, other- wise to remain in full force and virtue. A.B. {Add acknowledgment) Form ]Vo. 149. Guardian's Bond on Application to Sell Infant's Beal Estate. (Code Civ. Pro. §§ 2351, 2352.) Know all Men hy these Presents, That we, A. B., of No. Street, City of , C. D. of No. Street, City of , State of New York, and G. H., of are held and firmly bound unto E. F., an Infant un- der twenty-one years of age, in the sum of dollars, lawful money of the United States, to be paid to the said E. F., his executors, administrators or assigns, for which payment well and truly to be made, we bind ourselves, our and each of 228 Bradbury's Lansing's forms and practice. Bonds and Undertakings. our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , one thousand nine hundred and . Whereas, by an order of the Court of duly made and entered on the day of 190 , the above bounden was duly appointed the Special Guardian of E. F., an Infant over [under] the age of fourteen years, for the purpose of selling the real estate of said Infant mentioned in said order, upon the execution of the Bond therein required. JV^ow, therefore, the condition of the above Obligation is such, that if the above bounden A. B., shall well and faithfully discharge his trust as such Guardian of the above named Infant and shall well and truly pay ovei", invest and account for all moneys and securities received by him in the said special pro- ceeding aforesaid, according to the order and direction of any court having authority to give directions in the premises, and shall observe the orders and directions of the court in relation to the said trust, then this obligation to be void, otherwise to remain in fuU force and virtue. A. B. [l. s.] C. D. [l. s.] G. H. [l. s.] State of New Yoek, \ , County of . j On this day of , one thousand nine hun- dred and , before me personally came A. B., C. D. and G. H., to me personally known to be the same persons described in and who executed the above Bond, and they severally ac- knowledged that they executed the same. {Signature and title of officer.) State of New Yoek, ) County of . f C. D. and G. H., the sureties above named, being severally duly sworn, the said C. D. says that he is a resident of and is a free [house] holder in the City of in this State, and COMMON FORMS. 229 Bonds and Undertakings. that he is worth the sum of dollars over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution ; and the said G. H. for himself says that he is a resident of and is a free [house] holder in the City of in this State, and that he is worth the sum of dollars, over all the debts and liabilities which he owes or has incurred, and exclu- sive of property exempt by law from levy and sale under an execution. Sworn to before me, this ) day of , 190 . J ^ CD. G. H. {Signature and title of officer.) {Indorsement.) I approve the within sureties as sufficient, and I also approve of the within Bond, as to its form and manner of execution. Dated , 190 . {Signature of Judge.) Form No. 150. Receiver's Bond— General, Knot/J all Men hy these Presents, that we, A. B., C. D. and E. F. {giving addresses of all of them), are jointly and sever- ally held and firmly bound unto G. H. in the sum of dollars, lawful money of the United States, to be paid to the said G. H., for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, dated the day of , in the year one thousand nine hundred and — . * Whereas, by an order made by the Honorable I. J., Jus- tice of the Supreme Court of the State of New York, on the (Jay of , 190 , the above bounden A. B. was appointed Eeceiver of G. H. Now the condition of this obligation is such, that if the said 230 BRADBURY'S LANSING'S FORMS AND PRACTICE. Bonds and Undertakings. A , B. shall faithfully discharge the duties of his trust, as such Eeceiver, then this obligation to be void, otherwise to be in full force and effect. State of New Yoek, County of . One of the obligors named in the foregoing bond being sworn, says, that he is a resident and free [house] holder within tbis State, and is worth the sum of dollars, over and above all his debts and liabilities, which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. Sworn to before me, this A. B. day of 190 . f {Signature and title of officer.) {Same affidavit for all obligors.) {Add acknowledgments of all parties.) {Indorsement.) I approve of the within bond, and of the sufficiency of the sureties. Dated , 190 . {Signatu/re of Judge.) Form No. 151. Beceiver's Bond in Supplementary Proceedings. {The same as Form JSfo. 150 to (*) thence as follows :) Whereas by an order made by the Honorable H. J., Jus- tice of the Supreme Court, on the day of , 19 — , the above bounden A. B. was appointed Eeceiver of all the debts, property, equitable interests, rights and things in action of E. F., a Judgment Debtor. N^ow the condition of this obligation is such, that if the said A. B. shall faithfully discharge the duties of his trust, as such Receiver, then this obligation to be void, otherwise to be in full force and effect. {Continue same as Form No. 160 to close.) COMMON FORMS. 231 Bonds and Undertakings. Porm No. 153. mortgage Bond, with Interest, Insurance, Tax, Assessment Be- ceivers and Grold Coin Clauses. Knoio all Men hy these Presents, That I, A. B., of am held and firmly bound unto 0. D., of , in the penal sum of dollars, of the United States of America, to be paid to the said C. D., his executors, administrators or as- signs : for which payment, well and truly to be made, I do bind myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal and dated the day of , one thousand nine hundred and ■. The condition of the above obligation is such that if the above bounden A. B., his heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the above- named C. D., his executors, administrators or assigns, the just and full sum of dollars, in gold coin of the United States of America of the present standard of weight and fine- ness on the day of , nineteen hundred and , and the interest thereon to be computed from the day of the date of these presents at the rate of — per centum per annum, and to be paid half-yearly in gold coin as aforesaid on the days of and in each and every year until said principal sum of dol- lars shall be fully paid and satisfied without any fraud or other delay, then the above obligation to be void, otherwise to re- main in full force and virtue. And it is hereby expressly agreed, that the whole of the prin- cipal sum shall become due at the option of the above named C. D., his legal representatives or assigns, after default in the payment of any installment of principal or of interest for days or after default in the payment of any tax or assessment which may be levied or imposed upon the premises described in the mortgage accompanying this bond for days after notice and demand, or after default for twenty days in the repayment of any tax that may be imposed upon said mortgage or upon the debt secured by it and by these presents as provided for in said mortgage. 232 Bradbury's Lansing's forms and practice. Bonds and Undertakings. And the above named C. D., his legal representatives and assigns shall also be at liberty, immediately after any such de- fault or any default in the payment of any amount due on this bond, upon a complaint filed or any other proper legal proceedings being commenced for the foreclosure of the mort- gage accompanying this bond, to apply for, and shall be enti- tled, as a matter of right and vs^ithout regard to the value of the mortgaged premises as security for the amounts due upon said mortgage or this bond, or to the solvency of any person or persons liable for the payment of such amounts, and on ten days' notice to the party of the first part, his heirs or as- signs, to the appointment by a.nj competent court or tribunal of a receiver of the rents and profits of the premises described in said mortgage, with power to lease the said premises, and with power to pay taxes and assessments, and keep the same insured, and with power to take proceedings to dispossess ten- ants, and make all necessary repairs, and with such other pow- ers as may be deemed necessary, who, after deducting all proper charges and expenses attending the execution of the said trust, as receiver, shall apply the residue of the said rents and profits to the payment and satisfaction of the amount remaining due on this bond, and the mortgage accompanying the same, or to any deficiency which may exist after applying the proceeds of the sale of the said premises to the payment of the amount so remaining due, including interest and the costs of the fore- closure and sale. And it is also agreed, that the said obligor will keep the buildings on the premises described in the said mortgage in- sured against loss by fire, in a company to be selected by the mortgagee, for the benefit of the mortgagee therein named. A. B. Sealed and delivered in the presence of {Add aoJcnowledgment^ COMMON FORMS. 233 Bonds and Undertakings. Form No. 153. Undertaking on Attacliment, (Code Civ. Pro. § 640.) [Title of Action.] The above named plaintiff, having applied to one of the Jus- tices of this Court for a warrant of attachment against the property of the above named defendant, A. B., under and by virtue of the provisions of the Code of Civil Procedure, on the ground that the said defendant is a non-resident of the State of New York \_or other ground\ We, C. D., of No. — , street, in the City of and E. F., of No. street, in the City ) of , do jointly and severally undertake, pursuant to the statute in such case made and provided, in the sum of dollars, that if the said defendant recover judg- ment in this action, or if the warrant of attachment is va- cated, the plaintiff will pay all costs which may be awarded to the said defendant and all damages which the said defend- ant may sustain by reason of the attachment, not exceeding the sum above mentioned. Dated, , 190 . C. D. E. F. State of New Toek, County of . \ ss. : C. D., being sworn, says, that he is a resident and a free- [house] holder within the State of New York and worth double the sum specified in the above undertaking, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. C. D. Sworn to before me, this \ day of , 190 . f State of New York, County of ' E. F., being sworn says, that he is a resident and a free- [house] holder within the State of New York, and worth double 234 beadbury's Lansing's forms and practice. Bonds and Undertakings. the sum specified in the above undertaking, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. E. F. Sworn to before me, this ) day of , 190 . ) State of New Toek, ) County of . j I certify, that on this day of , 190 , be- fore me personally appeared the above named C. D. and E. F., to me known, and known to me to be the individuals described in, and who executed the above undertaking, and they severally acknowledged to me that they executed the same. {Indorsed.) Approved this day of , 190 . I. J., Justice. Form No. 154. Undertaking on Security for Costs. (Code Civ. Pro. § 3273.) [Title.] Whereas, A. B., the above named plaintilf has commenced an action in the above named court against C. D., the above named defendant, Now, therefore, we, E. F., of No. • street, in the City of , and G. H., of No. • street, in the City of , do hereby, pursuant to the statute in such case made and provided, jointly and sev-, erally undertake, that we will pay, upon demand, to the de- fendant all costs which may be awarded to him in said action, not exceeding the sum of dollars. Dated , 190 . E. F. G. H. {Add affidavits, OGknowledgments and i/adorsements as m Form No. 153.) COMMON FORMS. 235 Bonds and Undertakings. Form Wo. 155. Undertaking on Removal of Action into the City Court of the City of New York. [Title.] Whereas the above named plaintiff has commenced in this Court against the above named defendant an action specified in subdivision of Section 1364 of the Greater New York Charter, where the value of the chattel lor amount] claimed, as stated in the complaint, exceeds two hundred and fifty dollars, and issue having been joined, and no adjournment having been granted upon defendant's application, and the de- fendant having applied for an order removing this action into the City Court of the City of New York, pursuant to Section 1366 of the said Charter. Now, therefore, we, A. B., the above named defendant, and C. D., of No. — Street, and E. F., of No. Street, New York City, do hereby jointly and severally bind ourselves and undertake, in the sum of dollars, that the defendant wiU pay to plaintiff the amount of any judgment that may be recovered against him in the City Court of the City of New York in the action so removed. Dated, New York, 190 . A. B. CD. E. F. {Add affidavits and acknowledgment as in Form No. 153.) {Indorsement^ The within undertaking is hereby approved as to manner, form and amount, and as to the sufficiency of the sureties therein named. Dated, New York, 190 . Justice. 236 bradbuky's Lansing's forms and practice. Bonds and Undertakings. Form No. 156. Undertaking on Appeal to the Court of Appeals. (Code Civ. Pro. § 1326.) [Title of action in Supreme Court.] Whereas, on the — day of 190 , judgment was rendered for $ , [or], a certain order was entered, in this action [or], proceeding, in favor of the above-named re- spondent and against the above-named appellant. And the above named appellant feeling aggrieved thereby, intends to appeal therefrom to the Court of Appeals. 'Now, therefore, we, A. B., residing at No. — Street, in the of and C. D., residing at No. in the of do jointly and severally, pursuant to the Statute in such case made and provided undertake, that the appellant will pay all costs and damage which may be awarded against the appel- lant on the appeal, not exceeding five hundred dollars. Dated the day of , 190 . A. B. CD. {Add affida/uits and acknowledgments as in Form No. 153.) {Indorsement^ Approved this day of 19 — . {Signature of Justice^ Take notice that the Undertaking of which within is a copy has been duly filed in the office of the Clerk of the County of . Dated, 190 . COMMON FORMS. 237 Bonds and Undertakings. Form No. 157. TJndertaking on Appeal from Order, Without Stay. (Code Civ. Pro. § 1351.) [Title.] Whereas, on the day of 190 , an order was made and entered in the above entitled action in the office of the Clerk thereof in the County of . And the said defendant feeling aggrieved thereby, intends to appeal therefrom to the Appellate Division of the Supreme Court, First Department. Now, therefore, we, A. B., residing at No. — Street, in the City of and C. D., residing at No. Street , in the City of do hereby, pursuant to the Statute in such case made and provided, jointly and severally undertake that the appel- lant will pay all costs and damages which may be awarded against the defendant on said appeal, not exceeding five hun- dred dollars. Dated , 190 . A. B. C. D. {Affidamits and acknowledgment as in Form No. 153.) Form No. 158. Notice of Filing of Bond or Undertaking. [Title of court and cause unless the notice is indorsed on the bond.] Please take notice, that a bond \or undertaking] of which the foregoing is a copy has been duly filed in the office of the Clerk of this Court in the County of on the day of 19 — . Dated New York, 19—. Tours, etc., A. B. To C. D., Esq., Attorney for . Attorney for . 238 BRADBURY'S LANSING'S FORMS AND PRACTICE. Bonds and Undertakings. Form No. 159. Notice of Exception to Sureties.^ [Title.] Please take notice, that the plaintiff excepts to the suf- ficiency of the sureties in the bond [or undertaking] filed herein on the day of 19 — . Dated New York, 19—. Tours, etc., A. B. To CD., Esq., Attorney for . Attorney for . Form No. 160. Notice of Justification of Sureties.'' [Title.] Please take notice, that the sureties in the undertaking given ' May be served within ten days after a copy of the bail bond given on an order of arrest is served on the plaintiff's attorney. Code Civ. Pro. §577. The time to except to a bond given for the jaU liberties is three days. Code Civ. Pro. § 150. In City Court of New York exception to sureties on bail bond must be served within five days after delivery to plaintiff's attorney of certified copy of undertaking, etc. Code Civ. Pro. § 3168. Security for costs in same court, two days. Id. On an undertaking given to discharge an attachment the time to except is limited to three days after service of a copy on the plaintiff's attorney. Code Civ. Pro. § 690. In replevin notice of exception to the plaintiff's sureties must be given within three days after the chattel is replevied and a copy of the affidavit, requisition and undertaking is served on the defendant. Code Civ. Pro. § 1703. Security for costs, ten days after service of notice of filing of under- taking. Code Civ. Pro. § 3274. 2 To be served within ten days from the receipt of notice of exception to bail. Justification must take place not less than five nor more than ten days after service of the notice. Code Civ. Pro. § 578. COMMON FORMS. 239 Bonds and Undertakings. by the defendant herein and filed in the oflBce of the Clerk of this Court in. the County of on the day of , 19 — , will appear to justify at a Special Terna of this Court to be held in and for the County of in the Court House in said County on the day of , 19 — , at o'clock in the forenoon of that day. Dated , 19—. Tours, etc., A. B., Attorney for . To C. D., Esq., Attorney for . On a bond for the jail liberties the notice of justification, returnable within five to ten days, must be served within three days after notice of exception. Code Civ. Pro. § 150. Justification on undertaking given to discharge attachment regulated by provisions of Code Civ. Pro. § 578, as to bail. See Code Civ. Pro. § 690. On an undertaking given to sheriff by judgment creditor, where property claimed by third person is levied on as belonging to the judgment debtor, the notice of justification must be for a time not less than two nor more than five days after the service of the notice. Code Civ. Pro. § 1419. Undertaking given to cancel lis pendens not less than two days. Code Civ. Pro. § 1674. In replevin notice of justification may be served by the plaintiff within ten days after notice of exception. Code Civ. Pro. § 1703. Where the defendant reclaims the return of the chattel he must serve notice of justifica- tion of his sureties within three days after serving the notice requiring the return of the chattel. Code Civ. Pro. § 1704. The remainder of proceed- ings governed by those for bail (§ 578). Code Civ. Pro. § 1705. Security for costs, notice of justification may be served within ten days after notice of exception, justification to take place not less than five nor more than ten days thereafter. Code Civ. Pro. § 3274. In City Court of New York notice of justification of sureties on bail bond, within five days after notice of exception. Code Civ. Pro. § 3168. Security for costs in same court, two days. Id. 240 BRADBURY'S LANSING'S FORMS AND PRACTICE. Bonds and Undertakings. Form No. 161. Affidavit in Proceeding by Surety on Bond of a Trustee, Commit- tee, Guardian, Assignee, Receiver, Executor, Administrator or other Fiduciary to be Relieved from Further Liability on said Bond.' (Code Civ. Pro. § 812.) (Title of action or proceeding in which bond 'was given.) County of , ss : A. B., being duly sworn, deposes and says that, he is the surety on a bond given in the above entitled proceeding ; [/lere describe hond and the date and amount thereof, when given, and where filed']. That your petitioner prays to be relieved from liability as such surety for the act or omission of C. D., the principal mentioned in said bond, and prays that an order may be made pursuant to law, requiring said principal to give a new bond) and to render an account of his proceedings as such trustee, and in the event of the failure of said trustee to furnish a new bond, that said trustee be removed from office and a new trustee appointed in his place pursuant to provisions of section 812 of the Code of Civil Procedure ; and in such event that said trustee be compelled to file his account as such ; and that ' That portion of Code Civ. Pro. § 812, relating to the release of a surety on the bond of a trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary is comparatively new. It was not in the original code of 1876 and has been added by various amendments since 1892. The surety now seems to have the absolute right to be relieved of further liability. The section at the present time is an extremely long one and having been amended so often it has become more or less involved. It seems, to some extent at least, to have grown out of the development of surety corporations. As they become sureties solely for a money consid- eration they sometimes wish to be relieved of further liability because of inability for various reasons to collect their premiums. Prior to these amendments there does not seem to have been any way to secure relief. The section in its present form appears to give an absolute right to a surety to be relieved at least of any further liability after proceedings are taken to require the fiduciary to file a new bond. The proceeding seems to be to first procure an order requiring the principal to file a new bond. If he complies with the order then another decree or order is made com- pelling him to account for his proceedings up to the time the nf w bond was COMMON FORMS. 241 Bonds and Undertakings. pending a hearing of this application, the said principal may- be restrained from acting in any manner in respect to said trust estate except to preserve the same until the further order of the court. A. B. Sworn to before me, this day of , 19 — . Form No. 163. Order Requiring Trustee or Other Fiduciary to Furnish New Bond. (Code Civ. Pro. § 812.) [As, etc., in the form of a Court Order. '\ [Title.] A. B., the surety upon the bond given in the above entitled action {or proceeding), in which said bond C. D. was the prin- cipal, and which said bond was in the penal sum of dollars, and was executed on the day of , 19 — , and approved the same day by a Justice of this Court, and filed in the oflBce of the clerk of the County of on the day of , 19 — , having applied to be relieved as such surety, and to compel said trustee to file a new bond and having made a motion for such purpose, and said motion having come on regularly to be heard on the day of , 19 — ;* now, after reading and filing the aflSdavit of , sworn to on the day of , 19 — , and the notice of motion dated the day of , 19 — with due proof of service thereof on said C. D., in favor of said motion, and the affidavit of said C. D., sworn to on the day of , 19 — , in opposition thereto, and after hearing E. F., attorney for said surety in filed or the order is made, and upon such Accounting the old surety is relieved of any subsequent liability on the bond. If the principal fails to file a new bond be may be removed and also compelled to account, or if he fails to file his account the surety may do so, and thereby be relieved of any further liability. Vol. 1—16 242 Bradbury's Lansing's forms and practice. Bonds and Undertakings. favor of said motion, and G. H., attorney for said C. D., in opposition thereto, and due deliberation having been had, it is, on motion of E. F., attorney for said surety, hereby Oedeeed, that the said C. D. be and hereby is required to file a new bond in the sum of dollars to take the place of the bond hereinbefore described, which said new bond shall be in the usual form, and shall be approved by the court, which said new bond shall be filed within five (5) days from the service on the attorney for said C. D. of a copy of this order. Form No. 163. Order Bequiring Trustee or Other Fiduciary to Account after Fil- ing a New Bond. (Code Civ. Pro. §812.) As in last forin to (*) and thence as follows : And an order having been made herein on the day of , 19 — , requiring said trustee to file a new bond and said trustee having (f ) complied with said order and having filed a new bond, duly approved by the court, on the day of 19 — , now on motion of E. F., attorney for said surety, it is Oedeeed, that said C. D., the trustee herein, be and hereby is required to file an account of his proceedings up to and in- cluding the date of this decree. Form No. 164. Order Removing Trustee or Other Fiduciary and Compelling Him to Account upon Failure to File New Eond. (Code Civ. Pro. § 812.) As in last form to (f ) and thence as follows : failed to comply with said order and having failed to file a new bond it is on motion of E. F., attorney for said surety, COMMON FORMS. 243 Captions. Ordered, that said C. D. be and he hereby is removed from oifice as said trustee and his appointment to said ofBce canceled, and said C. D. is hereby directed and ordered to i:le his ac- count as such trustee according to law within twenty days from the date hereof and cause said account to be judicially settled according to law ; and it is further Ordered, that L. M., of , be and he hereby is ap- pointed trustee in place of said C. D. upon filing a good and suificient bond, duly approved by the court, in the sum of dollars, and it is further Ordered that in the event of the failure of said C. D. to file his account as herein ordered vrithin days hereof, the said A. B., said surety, shall be and hereby is empowered to file such an account of the proceedings of said C. D. as such trustee as said A. B. may be able to secure, and said A. B. may apply for such further order or direction in the premises as may be necessary to enable him to carry out the provisions of this order. VII. Captions. NO. FORMS. PAGE. 165. Caption in action 244 166. Caption in proceeding before action is begun 245 167. Caption in action where a state writ is issued at the instance of a private party 245 1. A caption or title to legal papers is usually for the purpose of identification ; that is, to indicate in what action or proceeding they are to be used. It is important therefore, that they should be correct, but as they usually do not affect the merits of the action or proceeding, amendments are freely allowed, where this may be done without prejudice to either of the parties. Teal v. Tinney, 2 How. Pr. 94. And if the title of the action does not declare the character in which the plaintiff sues, this information may be supplied from the body of the complaint. Stillwell v. Carpenter, 62 IST. Y. 639. Where the summons and complaint were served together and the name of the court appeared on the summons it was held that the 244 bkadbury's Lansing's forms and practice. Captions. otuission of the name of the court from the complaint should be disregarded as a technical irregularity which could not in- jure the defendant. Van Naynee v. PeoUe, 9 How. Pr. 198 ; Van Benthuysen v. Stevens, 14 How. Pr. 70. 2. The Code specifies generally what must be contained in the caption of a summons, Code Giv. Pro. § 417. Also of a complaint, Code Civ. Pro. § 481. But there is no provision in the Code as to the caption or title of the answer, Cods Civ. Pro. % 500. 3. The names of all parties should invariably appear in the summons and complaint, but in other papers in an action it is generally sufficient, where there are a large number of either plaintiffs or defendants, to use only the first one in each case, unless it is necessary to use more for the purpose of clearly identifying the action or proceeding in which the papers are to be used. 4. Appeal and error. — In the New York Courts the posi- tion of the parties is not changed when an appeal is taken, the titles appellant and respondent being used. But in the Fed- eral Courts where the writ of error, which is new process, is used, the names of the parties are transposed if the original de- fendant is the appellant or seeks the review. Form No. 165. Caption in Action. New York Supreme Court, County. John Doe, Plaintiff, against Eichard Roe, Defendant. COMMON FORMS. 245 Captions. Form No. 166. Caption in Proceeding Before Action is Begun. New Toek Stjpkeme Couet, County. In the matter of the Appli' cation of John Doe, an infant over the age of fourteen years, for the appointment of a guar- dian ad litem. Form No. 167. Caption in an Action where a State Writ is Issued at the Instance of a Private Party, New Yoek Supeemb Couet, County. The People of the State of New York ex. rel. John Doe, Plaintiff, against Eichard Eoe as Police Com- missioner, etc., Defendant. 246 bradbuhy's Lansing's forms and practice. Certificates. VIII. CEETIFI0ATE8. NO. FORMS. PAGE. 168. Certificate of clerk of U. S. Court to copy of paper on file in his office 247 169. Certificate of clerk to copy of paper on file in his office 248 170. Certificate of officer that document cannot be found 248 1. Certificates generally; sheriffs. — Facts^ in legal pro- ceedings are frequently proved by the certificates of public officials which, if proved by private individuals, an affidavit would be required, or the witness would be compelled to ap- pear in person to testify. The certificate of a sheriff, consta- ble or marshall to the service of process is a familiar example. Thus when a sheriff serves a summons in his own county his certificate is suflBcient proof of service, but if he serves it with- out his county the proof must be by affidavit, because he does not act officially outside his own county. Farmers' Loan (& Tmst Co. V. Dickson, 17 How. Pr. 477 ; 9 Abb. Pr. 61. 2. A referee certifies everything except those matters in which he is interested. Thus as to his report his certificate over his hand is sufficient, but the facts entithng him to the fees charged must be shown by his affidavit. 3. A certificate of acknowledgment is usually under the hand and seal of the officer without an oath, as to which see article Aokitowledgments in this chapter. 4. The clerks of the courts certify to many matters relat- ing to the records in their offices, which certificates are gene- ' Where a public officer is required or authorized by special provision of law, to make a certificate or an affidavit, touching an act performed by him, or to a fact ascertained by him in the course of his official duty and to file or deposit it in a public office of the State, the certificate or affidavit so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated by special provision of law. Code Civ. Pro. § 922. Such a certificate, however, is only evidence of facts which the officer is authorized to certify. Board of Water Commissioners v. Lansing, 45 N. Y. 19; Miller V. Brovm, 56 N. Y. 383. COMMON FORMS. 247 Certificates. rally accepted by the courts, usually by virtue of statutes making such certificates and the matters to which they relate, competent evidence without further proof. "It is a well known rule of interpretation that where the. form of a certificate is not prescribed in the act, it must be of such a nature as that it wiU substantially apprise the person to whom it is to be delivered of the facts sought to be brought to his notice and upon which he is required to act." People ex rel. Smith v. Foster, 27 Misc. 576; 58 Supp. 574; citing Sprague v. City of Rochester, 159 E". Y. 20 ; People ex rel. Richardson, v. SacJcett, 17 Misc. 405 ; 40 Supp. 413. Form No. 168. Certificate of Clerk to Copy of Paper on File in Ms Office.^ TJNrrED States of Ameeioa, \ Eastern District of ISTew York, j ^^' ' I, R. M., Clerk of the District Court of the United States for the Eastern District of New York, do hereby certify that the foregoing is a true copy of an original on file and remaining of record in my office. In testimony whereof, I have caused the seal of said Court to be hereunto affixed in the Borough of Brooklyn, Eastern District of IN'ew York, this day of , in the year of our Lord one thousand nine hundred and , and of the independence of the United States one hundred and twenty . KM., Clerk, [Seal.] By A. B., Deputy Clerk. 1 The above form while in use in the United States court in the Eastern District of New York does not comply with the requirements of Code Civ. Pro. § 957, which specifies that the officer must certify that he has com- pared the copy with the original on file in his office and that it is a correct transcript therefrom and of the whole thereof. See Form No. 169. 248 Bradbury's Lansing's forms and practice. Certificates. Form No. 169. Certificate of Clerk to Copy of Paper on File in his Office. (Code Civ. Pro. § 967.) State of New York, County of I, A. B., Clerk of the County of , in the State of New York, and also Clerk of the Supreme Court in said County, do hereby certify that the foregoing is a true copy of an original on file and remaining of record in my oiEce, and further certify that said has been compared by me with the original thereof, and that the foregoing is a correct transcript therefrom, and of the whole of said original. In witness whereof, I have hereunto set my hand and caused the seal of said Court to be hereunto affixed at in said County and State, this • day of in the year of our Lord, one thousand nine hundred and . A. B., [Seal.] Clerk. Form ]Vo. 170. Certificate of Officer tliat Document Cannot be Found. (Code Civ. Pro. § 921.) State of New York Coonty of ' I, A. B., Clerk of the County of , in the State of New York, do hereby certify that I have made diligent exami- nation ^ in my office and searched for a certificate of the pay- ment of the capital stock of the company in said office, and that the same cannot be found. In witness whereof, I have hereunto set my hand and offl- [Seal] cial seal this day of 19 — . A. B., Clerk. 1 A certificate which does not show that diligent examination has been made is insufiicient. Briggs v. Waldron, 83 N. Y. 682. COMMON FORMS. 249 Copies. IX. COPIES.^ NO. FOBMS. PAGE. 171. Authentication of transcript from justice's docket 255 172. Authentication of judgment of foreign justice 256 173. Exemplified copy of judgment on other record of another state. . 257 174. Another form of exemplified copy of judgment 260 175. Exemplified copy of judgment of foreign county 261 1 . In making a copy of a paper to be used in a legal pro- ceeding care should be taken that all the dates and signatures are properly filled in, as the attorney or party upon whom a copy is served is usually only affected by the allegations or matters contained in a copy, and not by the allegations con- tained in an original which are not repeated in the copy. Al- though defects in a copy, such as omitting the date and the signatures have been sometimes disregarded where the original was complete and the party has not been prejudiced by the omission, such defects in almost all cases cause trouble and de- lays and may in specific instances defeat a whole proceeding. 2. In filling in the signatures it is customary to place be- fore the name on a copy the word (signed), but if the copy is to be certified, this word should be omitted, for the reason that the officer certifies that the copy is a correct transcript of the whole of the original, and the original contains no such word as " signed." The certification itself shows that it is a copy, and that there is no pretense of the signatures being originals although they are filled in with a pen. When, however, an uncertified copy is used, it is the general practice and is proper to use the word " signed " before the signatures, to indicate that it is a copy and it is not pretended to be an original. 3. In serving a complaint, answer, affidavit, bill in equity or other paper of that character it is the invariable rule to use a copy, the attorney keeping the original, or filing it in court as occasion requires. The Code specifically requires a copy of a summons to be served. Code Civ. Pro., § 426. 1 See subdivision Certificates in this chapter. 250 beadbuky's Lansing's forms and peactice. Copies. 4. In serving court orders, injunctions and decrees of all character a copy is invariably used, which may be either cer- tified or not. A judge's order, such as an order to show cause and other orders not filed when granted, usually remains in the possession of the attorney until the time for a hearing thereon, or until some further action therein is taken by the court, and for this reason it is always necessary in serving a copy of such an order to exhibit the signature of the judge on the original order to the person upon whom the service is made, and as a rule the service is not complete without exhib- iting such signature. Where the paper is technically a court order or decree, the original is always filed with the clerk of the court, and in such case either a plain or certified copy may be served. A plain copy is always sufficient without certifica- tion to set the time running within which an appeal may be taken, but it is frequently necessary to serve a certified copy where some further right is to be protected or a future pro- ceeding is to be founded upon the decree. A decree which contains an injunction order, or any equity'decree, requiring a party to do something further in satisfaction of the decree, is usually served by using a certified copy, so that there can be no question as to the accuracy of the document served, nor any doubt about the official character of the document. 5. The New York Statute contains elaborate provisions for proving documents, laws and other public records by means of copies certified under the hand and seal of the clerk who has the custody thereof. See Code Cim. Pro. %% 921 to 962. These provisions, however, do not prevent a party from giving proof of a fact, act, record, proceeding, document or other paper or writing according to the rules of the common law or by any other competent proof. Code Civ. Pro. § 962. Jacdbi v. Order of Oermania, 73 Hun, 602 ; 26 Supp. 318. 6. An exemplified copy ' of any certificate or affidavit made 1 For exemplified copy of judgment see paragraph 23 and Forms Nos. 173, 174 and 175. COMMON FOKMS. 251 Copies. by a public officer in the line of his duty, is not only compe- tent in the sarae way that the original certificate or affidavit would be, but it is also frequently presumptive proof of the facts stated in said certificate or affidavit. Code Civ. Pro. % 922. Flandrow v. Hammond, 148 IST. Y. 129. There is no difference between an " exemplified " and a " certified " copy of a judgment. The former word was used when the physical appearance of a record was reproduced in the copy, but now has no special significance. 7. A copy of a certificate of marriage, which certificate has been filed pursuant to law, is presumptive evidence of the marriage. Code Civ. Pro. § 928. 8. Entries in the books of a foreign corporation are pre- sumptive evidence of the acts and transactions of the corpora- tion, and if such books cannot be produced a copy thereof or of an entry therein, if properly verified, may be received in evidence. Code Civ. Pro. §§ 929-931. This rule applies to all parties to the action whether or not they are members of the corporation ; except that the corporation cannot thus prove its own acts. Id. Sigua Iron Co. v. Brown., 171 IST. Y. 488, 496 ; Titus v. Poole, 73 Hun, 383 ; 26 Supp. 451 ; aff'd 145 ]Sr. Y. 414. 9. A copy of any paper filed, kept, entered or recorded pur- suant to law in a public office of the State, if the officer hav- ing charge thereof has an official seal, may be read in evidence with the same effect as if the original was produced, when certified under the hand and seal of the official. Code Cim. Pro. % 933. This section makes a certified copy of a land patent, filed in the office of the Secretary of State, evidence which the court is bound to receive. N. T. Cent. c& H. R. B Co. v. Brockway Brick Co., 158 N. Y. 470. Also of a convey- ance. Code Giv. Pro. % 935. But this is only presumptive evidence and may be rebutted. Code Cvo. Pro. § 936. Also of a bill of sale Polykromas v. Erausz, 73 App. Div. 538 ; 77 252 bkadbury's Lansing's forms and practice. Copies. Supp. 46. Physician's certificate of death see Dams v. Su- prertie Lodge K. of H., 165 K Y. 159. 10. A civil serrice regulation, filed in the oflice of the State Civil Service Commission, may be proved by producing a certified copy. People ex rel. Sears v. Tobey, 153 N". T. 381. 11. What copy proves. — Of course, however, a copy of a document offered in evidence under Code Civ. Pro. § 933 can have no other or greater effect than vi^ould be produced by of- fering the original in evidence, and the copy cannot be used to prove more than the original would prove, if produced. Bank of Metropolis v. Faber, 38 App. Div. 159. 12. Town clerk's office — Under the statute a copy of a paper filed in a town clerk's office is competent. Code Civ. Pro. § 934 13. Justice. — A transcript of a justice's docket, certified by him,' is competent evidence. Code Civ. Pro. §§ 938, 939. 14. Foreign justice. — Also a transcript of the docket of a justice of the peace of an adjoining State^ when properly au- thenticated. Code Civ. Pro. §§ 948-951. 15. All ordinances or resolutions of a municipal corpora- tion, or of one of the subordinate bodies thereof, may be proved by certified copy. Code Civ. Pro. § 941. 16. A printed copy of a foreign law is received in evidence by the courts of New York. Code Civ. Pro. § 942. 17. U. S. departments and Courts. — Copies of documents on file in the departments of the United States Government are received in evidence. Code Cvo. Pro. § 944. Also copies of records of United States courts. Code Civ. Pro. § 943. 1 See Form No. 171. 2 See Form No. 172. COMMON FORMS. 253 Copies. 18. Sale of TesseL— A transcript of a record of a bill of sale of a vessel may also be received in evidence. Code Oiv. Pro. % 945. 19. Conveyance of land in another state.— Exemplifica- tion of a record of conveyance of land without the State, which has been recorded in a State or Territory within the United States, may be received in evidence. Code Oiv. Pro. §947. 20. Foreign court. — A copy of a record, or other judicial proceedings of a court of a foreign country, will be received when properly authenticated. Code Cvo. Pro. § 952. 21. A copy of a patent, record or other document remain- ing of record in a public office in a foreign country, certified according to the form in use in that country, is admitted in evidence in this State, if properly authenticated. Code Civ. Pro. § 956. 22. Certificate ; seal. — Where a transcript, exemplified or certified copy of a record or other paper is declared by law to be evidence and special provision is not made for the form^ of a certificate, in the particular case, the person authorized to certify must state in his certificate that it has been compared by him with the original and that it is a correct transcript therefrom and of the whole of the original.^ Code Civ. Pro. § 957 ; and this certificate must be under seal if the ofiicer, court, body or board who has the custody of the original paper has such a seal. Code Civ. Pro. § 958. 23. Foreign judgments.^ — Under the Constitution of the 1 Special provision is made for form of certifioate of authentication of for- eign judgment. See paragraph 23 below; 1 U. S. Comp. Stat., p. 677; Form No. 173, post. 2 See Form No. 169. 3 See Form No. 173. The judgments of the courts of each state are con- sidered judgments of "foreign" states, or "foreign judgments, " in every other state. See also Forms Nos. 174 and 175. 254 Bradbury's Lansing's forms and peactice. Copies. United States " full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceed- ings shall be proved, and the effect thereof." U. S. Const. Art. 4, § 1. Under the authority of the Constitution Congress has pro- vided by the Act of May 26, 1790, and the Act of March 2T, 1804, which are stiU in force, that "Acts of the legislature of any State or Territory or of any country subject to the juris- diction of the United States, shall be authenticated by having the seals of such State, Territory or country affixed thereto. " The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice or presiding Magistrate that the said attestation is in due form. And the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they were taken." 1 TJ. S. Oomp. Stat. p. 677. It is also provided by the Acts of March 27, 1804, and Feb- ruary 21, 1871, that, " All records and exemplifications of books which may be kept in any public office or State or any Terri- tory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancel- lor, or keeper of the great seal, of the State or Territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presid- COMMON FORMS. 255 Copies. ing justice of a court, it shall be further authenticated by the clerk or prothouotary of the said court, who shall certify, un- der his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified ; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country aforesaid in which it is made. And the said records and ex- emplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken." 1 U. S. Comp. Stat. pp. 677, 678. Form No. 171. Authentication of Transcript from Justice's Docket. (Code Civ. Pro. § 939.) State of E"bw Toek, ) . COUHTT OF j I, A. B., a Justice of the Peace of the Town of , in the County of and State of New York, do hereby certify that the foregoing is a correct and true transcript from my docket-book, as such Justice of the Peace. In witness whereof, I have hereunto set my hand as such Justice this day of , 19 — . State of New Toek, ( . County of j I, C .D., Clerk of the County of , in the State of New York, do hereby certify that A. B., the Justice whose name is subscribed to the foregoing (or annexed) transcript from his docket-book, resides in the said County of and I further certify that the said A. B., the person who subscribed 256 bkadbtjey's Lansing's forms and peactice. Copies. said transcript, was on the day of , 19 — , a Justice of the Peace in and for the County of and that I am acquainted with the handwriting of said A. B., the said Justice, and verily believe that the signature to the transcript is in the genuine handwriting of said A. B. In witness whereof, I have hereunto set my hand and my official seal as the Clerk of the said County of , on this day of 19 — . Form Tfo. 173. Authentication of Judgment of Foreign Justice. (Code Civil Pro. §§ 948, 949.) State of County of I, A. B., a Justice of the Peace in and for the County of in the State of , do hereby certify that the foregoing (or annexed) is in all respects a correct and true transcript from my docket-book, as such Justice of the Peace, and I further certify that I had jurisdiction of the cause in which said entry was made in said docket-book. In witness whereof, I have hereunto set my hand this day of , 19 — . State of County of I, C. D., Clerk (or prothonotary) of the County of and also of the Court of Common Pleas (or other Court) of the County of the State of do hereby certify that A. B., the Justice of the Peace mentioned in the foregoing (or annexed) transcript from the docket-book of said Justice, re- sided in the County of , on the day of -, 19 — at the time of the rendering of the judgment speci- fied in said transcript, and I further certify that the said A. B., the person subscribing the certificate attached to said tran- COMMON FOllMS. 257 Copies. script, was on the day of 19 — a Justice of the Peace of the said County of , and that I am acquainted with the handwriting of said justice and signature to said transcript is in the genuine handwriting of said A. B., said Justice. In witness whereof, I have hereunto set my hand and the seal of said Court (of Common Pleas or other Court) this day of 19—. Form No. 173. Exemplified Copy of a Judgment or Other Becord of Another State. 1 (U. S. Const., Art. 4, § 1. 1 U. S. Comp. Stat., p. 677.) State of County of |- ss. : I, A. B., Clerk of the Circuit Court (or other Court) of the Judicial District of , do, hereby certify the above and foregoing to be a true, complete and perfect transcript and copy of the whole of the original record and proceedings had and entered of record in a certain cause in Court in said County wherein C. D. was plaintiff and E. F. was defendant and of the judgment and de- cree therein, as the same now remains of record in this office, and that the said transcript and copy have been compared by me with the original thereof, and further that I am the officer in whose custody the records of the said above mentioned Court are legally kept. In testimony whereof, I have hereunto set my hand and aflBxed the seal of the said Court at the Court House in in the State of this day of 19—. A. B., [L. S.] Clerk of Court. Vol. 1—17 See paragraph 23 ante, p. 253. 258 BRADBURY'S LANSING'S FORMS AND PRACTICE. Copies. State of | County of j ' ' I, G. H., Presiding Judge of the Court in the Judicial District of do hereby certify that A. B., whose name is subscribed to the foregoing certificate as Clerk of said Court, was such Clerk when said certificate was signed ; was duly commissioned and qualified to act as such Clerk and that his signature and the seal of said Court at- tached thereto are genuine and entitled to full credence, and his said certificate is in due form and he was, when said certifi- cate was signed as aforesaid, the oflicer in whose custody the records of the said Court were legally kept. In witness whereof, I have hereunto set my hand and the seal of said Court this day of 19 — . > ss. G. H., Judge. State of County of I, A. B., Clerk of the Court of the Judi- cial District of , do hereby certify that G. H., whose name is subscribed to the foregoing certificate, is Presiding Judge of the Court of the Judicial District of duly commissioned and qualified according to law, and was such Presiding Judge at the time when his signature was affixed to said certificate, and I do further certify that the signature of said G. H. is genuine and was affixed to said cer- tificate in my presence. In witness whereof, I have hereunto set my hand and aifixed the seal of said Court this day of 19 — . A. B., Clerk of the Court. State of | Office of the Seceetaey of State, j I, J. K., Secretary of State for the State of do hereby certify that the Court, Judicial District of the State of • is a court of record having original jurisdiction of all causes both at law and in equity in COMMON FORMS. 259 Copies. the County of and State of ; that said court is duly constituted ; that G. H. is the Presiding Judge of said court duly commissioned and qualified according to law, and was such Presiding Judge at the time when his sig- nature was affixed to the foregoing certificate ; and that the signature of said G. H. to the said certificate is genuine and that A. P. is the officer in whose custody the records of said Court are legally kept. (Great Seal of State.) In testimony whereof, I have here- unto set my hand and caused my seal of office and also the great seal of the State of to be af- (Seal of Secretary fixed. Done at this of State.) day of 19—. J. K., Secretary of State.' 1 This certificate may be signed by the Governor of the State in which case the above form would necessarily be slightly changed. See paragraph 23, p. 253. The statutes there quoted provide one way of proving the records of judicial proceedings and another of proving other public records. The above form (No. 173) it is believed, substantially complies with the statutes as to all such records. For a judgment only Form No. 174 is sufficient. See also Form No. 175. 260 bhadbuey's Lansing's forms and pbactice. Copies. Form JVo. IT 4. Another Form of Exemplified Copy of Judgment.' SuPEEME Court. (Name of State) ss : The State of , to all to whom these presents may come, Greeting : — know ye, That we having inspected the records of our Supreme Court, do find there remain- ing the following which con- [ L. S. ] tains a true and perfect tran- script of the papers, proceed- ings, orders, etc., of the rec- ord and of the whole record of the judgment in the case of A. B. V. C. D., in the words and figures following, to wit : {Here take in Copy of Judgment to he Exemplified.) all of which we have by these presents caused to be exempli- fied, and the Seal of our Supreme Court to be hereunto affixed. In testimony whereof, I, E. F., Clerk of said Supreme Court, have hereto set my hand and affixed the Seal aforesaid, at this day of , A. D. nineteen hun- dred and . E. F., Clerk. I, G. H., Chief Justice of the Supreme Court of the State of , in conformity to the laws of the United States of America, in such case made and provided, do certify, that on the day of instant, E. F., Esquire, was, and now is, Clerk of said Court ; that the attestation of said Clerk 1 See Forms Nos. 173 and 175. COMMON FORMS. 261 Copies. to the foregoing record is the attestation of said Clerk, and the signature " E. F.," his genuine signature, and that the seal thereto aflBxed is the seal of said Court, and that said record and attestation are in due form of law. Witness my hand, at this day of A. D., nineteen hundred and . G. H., C.J. I, E. F., Clerk as aforesaid, do hereby certify, that Hon. G. H., whose name is signed to the foregoing Certificate of Attestation, was, at the time of signing the same, Chief Justice of said Supreme Court, duly commissioned and sworn, and that full faith and credit are due to all his acts as such, as well in all courts as elsewhere, and that the signature to said certificate is in the proper handwriting of said Chief Justice. In testimony whereof, I have hereto set my hand and the Seal of said Court, at , this day of A. D. nineteen hundred [L. S. ] and . E. F., Clerk. Form No. 175. Exemplified Copy of Judgment of Foreign Country. (Code Civ. Pro. §§952, 953 and 957.) Kingdom (oe Kepublic) of ) State of /■ ss. : Crry of ) I, A. B., Clerk of Court in the city of in the Sta.t6 {County, Dejpa/rtment or other political suh-division) of in the Kingdom {RepuUio or Principality) of , do hereby certify the above and foregoing to be a 262 Bradbury's Lansing's forms and practice. Copies. true, complete and perfect transcript and cop}' of the whole of the original record and proceedings had and entered of record in a certain cause in said court wherein C. D. was the plaintiff and E. F., the defendant, and of a judgment or decree therein as the same now remains of record in this office, and I further certify that I am the officer in whose custody the said record is legally kept; that I have carefully compared the foregoing with the original now remaining of record in my office, and that the foregoing is a correct transcript therefrom and of the whole of said original. In testimony whereof , I have hereunto set my hand and affixed the seal of (Seal of Court.) said court at on this day of - — in the year nineteen hundred and . A. B., Clerk. Kingdom (or Republic) of ) State of \- ss. : City of • j I, G. H., the Chief Judge {or presidi?ig Magistrate) of the court, in the State {County, Department or other po- litical sub-division) of in the Kingdom {Republic or Principality) of , do hereby certify that A. B., whose name is subscribed to the foregoing certificate and who attested the foregoing record as clerk of said court, was such clerk when said certificate was signed, and was duly qualified and commissioned to act as such clerk. That he is the officer in whose custody the records of said court are required by law to be kept and that his signature and attestation and the seal of said court attached to said certificate are genuine. Jn witness whereof, I have hereunto set my hand and the seal of said court, this day of in the year nineteen hundred and . G. H., Chief Judge. COMMON FORMS. 263 Copies; Kingdom (oe Ebpublic) or ) State of V ss. : City of ) I, J. K., Secretary of State {or other officer having the custody of the great or principal seal of the government) of the King- dom {Mepuhlic or Pri/ncipality) of — , do hereby certify that I am the officer having the custody of the great {or prin^ cipal) seal of the Kingdom of ; and I further certify that the court specified in the foregoing certificate of A. B., the clerk thereof, is duly constituted as a court of record having general original jurisdiction in all cases, both at law and in equity and that G. H. is the Chief Judge {or pre- siding Magistrate) of said court, and that I am acquainted with the handwriting of said G. H., said Chief Judge, and that the signature of said G. H. to the foregoing certificate is in the genuine handwriting of said G. H., said Chief Judge {or pre- siding Magistrate) and I further certify that said G. H. was at the time the signature was so affixed, duly qualified and com- missioned to act as such Chief Judge {or presiding Magistrate). In testimony whereof, I have hereunto (Seal of office.) set my hand and caused my seal of office (Great Seal.) and also the great seal of state to be af- fixed hereto this day of in the year nineteen hundred and . J. K., Secretary of State of 264 Bradbury's Lansing's forms and practice. Defaults — Taking and Opening. X. Defaults^ — taking and opening. No. FORMS. PAGE 176. AiEdavit of merits by party 273 177. Affidavit of merits by attorney 273 178. Affidavit on motion to open default 275 179. Indorsement on papers of non-appearance of party in open court 275 1. How eyidenced. — A default in appearing or pleading is usually evidenced by the aflfidavit of the attorney of record, in which is stated the facts from which the default follows ; that is, that a complaint was served on a certain date and no answer or notice of appearance has been received, and that more than twenty days have elapsed since the service of the complaint; or other facts, as the case may be. "Where a party is required by an order or decree of a court to perform an act or pay a sura of money his default in complying with the order or decree is evidenced in the same manner. The failure of a party to appear in court is evidenced in va- rious ways, invariably however by the court or the clerk thereof, so that the nonappearance becomes a matter of tem- porary record at least. Thus a failure to answer the call of the calendar is usually indicated on the calendar by the court, or by the clerk in his minutes. As the entry on the calendar cannot be considered as a permanent record, the action which the court takes by reason of the default is recited in the de- cree or order made, accompanied frequently by the aflBdavit of the attorney as to such default. As it frequently happens, however, that orders or decrees on default are not signed or filed until sometime after the default actually occurs, it is al- ways important that a record of some kind should be made, by the court, at the time the default occurs, in open court, which record should be in a form more permanent than a mere entry on a calendar. This is particularly true when, by reason of such nonappearance, a party may be proceeded 1 This subdivision treats of the taking and opening of defaults generally and excludes the forms and practice in entering judgments by default, which will be found in the chapter on Judgments. COMMON FORMS. 265 Defaults — Taking and Opening. against as for a contempt. In such, cases the only safe way is to have the fact of nonappearance indorsed on the papers and this indorsement signed by the presiding judge, at the time. 2. Time in relation to default in pleading.^ — If a com- plaint is served with the summons in an action in the Supreme Court the defendant must answer within twenty days, exclud- ing the day of service, or he will be in default. If a notice only is served with the summons the defendant may appear within twenty days and then the plaintiff must serve a com- plaint within twenty days thereafter or he will be in default. After the service of the complaint the defendant has twenty days in which to demur or answer. If neither a complaint nor a notice is served with the sum- mons the time to appear and plead is the same as if a notice only was served with the complaint. Either party has a right to amend his pleading once as of course, without costs, and when an affirmative pleading, such as a complaint, or counterclaim contained in an answer, is amended, a new answer or reply thereto, as the case may be, must be served, or the party will be in default, notwithstand- ing an answer or reply has been served to the original com- plaint or counterclaim. The right to amend may be said to be cumulative, where the opposite party amends his pleading. Thus where a de- fendant has served an answer and an amended answer, to the original complaint, and the plaintiff subsequently amends his complaint, the defendant has the right to serve an answer and then an amended answer as of course, to the amended com- plaint. The same right exists as to serving a reply to a counter- claim. In each case, in the Supreme Court, the amended pleading must be served within twenty days after the original pleading, or the answer or reply thereto, was served, or the party loses the right to amend as of course, by his default in exercising the right within the proper time. 1 See Code Civ. Pro., §§ 542, 543. 266 BRADBURY'S LANSING'S FORMS AND PRACTICE. Defaults — Taking and Opening. In those courts of record where the time to appear or plead after the service of the summons is less than twenty days the subsequent pleadings, including amendments of course, must be served within the time prescribed for appearing after the service of the summons. 3. On the submission of a controversy on an agreed state- ment of facts, a judgment by default will not be entered against a party who fails to appear or submit a brief on the argument. Heasty v. Lambert, 98 App. Div. 177 ; 90 Supp. 595. 4. Infant. — A default judgment cannot be taken against an infant until twenty days after the appointment of a guardian ad litem for him. Code Civ. Pro. § 1218. 5. The default of a guardian in allowing a widow to re- cover dower against an infant does not prevent the infant from recovering the property when he becomes of age. Code Civ. Pro. § 1605. 6. Upon default taken after substituted service, or service by publication of the summons, the defendant has an absolute right where good cause is shown, to come in and defend at any time within one year after the judgment is entered, if notice thereof is served on him, and if no notice is served, at any time within seven years after the entry of judgment. Code Civ. Pro. § 445. 7. Proof of the taking of property under a warrant of at- tachment, is essential on an application to the court for judg- ment by default, against a nonresident or a foreign corpora- tion, for a sum of money only, where the summons has been served without the State or by publication. Code Civ. Pro. § 1217. And in such a case application for judgment must be made to the court. Code Civ. Pro. % 1216. 8. An order on default should be limited to the relief asked COMMON FORMS. 267 Defaults — Taking and Opening. for ill the notice of motion. Headdings v. Gawette, 86 App. Div. 592 ; 83 Supp. 1017. 9. Motion when defendant in default. — After a defendant has defaulted in appearing a motioa may be made either to the court or a judge out of court, but before default a motion must be made to the court. Code Civ. Pro. § 768. 10. In the Federal courts on the law side, the rules as to defaults are the same as they are in the state courts. In equity, however, the defendant is required by Eule 17, of the Equity Rules, to enter his appearance at the E.ule Day upon which the process is returnable, if it has been served twenty days before that Rule Day, otherwise at the next succeeding Rule Day, and by Rule 18 he is required to file his plea, de- murrer or answer on the Rule Day next after his appearance. By Rule 18 it is also provided that in case of the default of the defendant in filing his plea, demurrer or answer, the plaintiff may enter an order (as of course) in the order book, that the plea be taken pro confesso and the matter in the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry, if the same can be done without an answer and is proper to be decreed. By Equity Rule 19, it is provided as follows : " "When the bill is taken pro confesso, the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso and such decree rendered shall be deemed absolute, unless the court shall at the same term set aside the same or enlarge the time of filing the answer upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted unless upon the payment of the costs by the plaintiff in the suit, up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall decree, and submit to such other terms as the court shall direct for the purpose of speed- ing the cause." 268 BftADBUHY's LANSINg's FORMS AND PRACTICE. Defaults — Taking and Opening. After default no proof is necessary as to the allegations of the bill. Thom.as v. Wooster, 114 TJ. S. 104, unless the alle- gations of the bill are insufficient to support a decree, in which case a default cannot be entered even though the defendant does not appear. Wonff Him v. Callahan, 119 Fed. 381. It may be necessary to take evidence on questions which do not involve the principal controversy, such for example as the amount of damages in an infringement suit. Reedy v. Electric Co., 83 Fed. 709. The final decree cannot be entered, however, until at least one Kule Day after the appearance. O^Hara v. MoConnell, 93 U. S. 150. Where the defendant has appeared, but has defaulted in pleading, he is entitled to notice of all future proceedings and has a right to be heard as to the form of the decree to be entered. Bennett v. Hoeffner, Fed. Cas. No. 1320 ; Southern Pacific 11. Co. v. Temple, 59 Fed. 17. A decree which is onlj'- interlocutory in its nature may be set aside at a subsequent term. Blythe v. HinoMey, 84 Fed. 228. But a final decree entered by default cannot be set aside after the expiration of the term in -which it is entered. Austin v. Riley, 55 Fed. 833 ; Stuart v. St. Paul, 63 Fed. 644. If there is a lack of jurisdiction, however, a default decree may be set aside at a subsequent term. Eldred v. American Palace Car Co., 103 Fed. 209. 11. What is admitted by default. — In an action where judgment can only be taken upon application to the court, the defendant by his default admits only the facts pleaded, not that the plaintiff is entitled to the relief demanded. It is for the court to determine on the facts to what relief the plaintiff is entitled. Ayall v. Pitts, 78 IST. T. 239 ; and see Bullard v. Sherwood, 85 IST. Y. 253. But in no case, where there is no answer, can the judgment be more favorable than that de- manded in the complaint. Code Civ. Pro. § 1207 ; and see Harrison v. Union Trust Co., 144 JST. T. 326. 12. Assessment of damages. — Where an application to the court is necessary the assessment of damages may be made by COMMON FORMS. 269 Default — Taking and Opening. the court, or a jury, if one is present, and the court may order a reference to ascertain such damages. If the action is for personal injuries or injury to property, the damages must be ascertained by a writ of inquiry. "Where a reference or writ of inquiry is ordered the court, or a judge thereof, if the case is one which can properly come before a judge, may direct judgment to be entered upon the writ of inquiry or the report of the reference coming in, or may require further action by the court to perfect the judgment. Code Civ. Pro. §§ 1214, 1215. 13. Opening default. — It is provided that "After the ex- piration of the time, within which a pleading must be made, or any other proceeding in an action, after its commencement must be taken, the court, upon good cause shown, may in its discretion, and upon such terms as justice requires, relieve the party from the consequences of an omission to do the act, and allow it to be done." Code Civ. Pro. § 783. This does not apply to the commencement of an action where the time has expired within which it should have been begun, the taking an appeal, or to the abatement and revival of an action in case of the death of a party. Code Civ Pro. § 784. But relief from a default in serving a notice of appeal upon the clerk, or the adverse party, if served upon either of these, may be granted by the court. Code Civ. Pro. § 1303. 14. An affidavit of merits^ should accompany an applica- tion to open a default taken at the trial. Leffler v. Beoh, 32 Misc. 776 ; 66 Supp. 479 ; and an order opening a default on an insufficient affidavit of merits, if no answer is presented, should be reversed on appeal. Godson v. Taussig, 65 Supp. 716. But an objection taken for the first time on appeal that an affidavit of merits was not presented in the court below is not available to defeat an order opening a default. Headdings V. Oavette, 86 App. Div. 592 ; 83 Supp. 1017. 1 See Rules 23 and 24 Gen. Rules of Prac, and Forms Nos. 176 and 177 post. 270 Bradbury's Lansing's forms and practice. Defaults — Taking and Opening. The rule requiring an affidavit of merits on an application to open a default applies to the Municipal Court of the City of New York. Thornall v. Turner, 23 Misc. 363 ; 51 Supp. 214. An affidavit of merits is not necessary on an application to open a default taken after the service of a summons with notice that a judgment for a sum of money will be taken, without the service of a complaint, and a judgment in fraud is entered. Morris v. Eahn, 31 Misc. 25 ; 62 Supp. 1040 ; nor on an appli- cation to open a default irregularly taken. American Audit Co. V. Industrial Federation of Am.., 84 App. Div. 304; 82 Supp. 642. 15. Keceiver. — The court may relieve a receiver in proceed- ing for the dissolution of a corporation from the effect of any omission or default on his part in giving notices, etc. Code Civ. Pro. § 2429. 16. Default on justification of bail. — Where bail is ap- proved by default after due notice of justification was given to the plaintiff and he did not appear, it was held that the court had no power to open the default. Lewis v. Stevens, 93 N. Y. 57. 17. Divorce. — The rules governing the opening of defaults in ordinary actions involving a mere pecuniary liability are not rigorously applied to actions for divorce. Henderson v. Henderson, 83 App. Div. 449 ; 83 Supp. 642 ; Jewell v. Jewell, 96 App. Div. 633 ; 89 Supp. 166. Nevertheless, a defendant seeking to open a default in a divorce suit should furnish an affidavit of merits and a proposed answer denying the allega- tions of the complaint. Maguire v. Maguire, 75 App. Div. 534 ; 78 Supp. 312. 18. Considering merits. — Usually the court willnot go into the question of the merits of the action, on a motion to open a default, if such merits are debatable. Shaw v. City of JV. T., 59 App. Div. 568 ; 69 Supp. 669. But see Berkeley v. JKen- nedy, 65 App. Div. 613 ; 72 Supp. 734. COMMON FORMS. 271 Defaults — Taking and Opening. 19. If the statute of limitations would bar a new action the court will usually open a default, even though there has been laches, if a reasonable excuse be given therefore. Wein- berger V. Metropolitan Traction Co., 63 App. Div. 240; 71 Supp. 289. 20. After repeated adjournments, at the request of the party against whom the default is taken, compensatory terms should be imposed as a condition to opening the default. McEwen v. Bimond, 81 App. Div. 626 ; 81 Supp. 365. 21. Absence of material witness. — The absence of a ma- terial witness is usually a good ground for opening a default. Thus where the witness was out of the State and had promised to be present at the trial and was actuaUy on his way to the place of trial when the default vras allowed to be taken be- cause of his nonarrival in time, the default was opened upon payment of costs and disbursements. Faist v. Metropolitan St. By. Go., 89 App. Div. 594 ; 85 Supp. 646. The materiality of the witness must clearly appear, however, before a default will be opened on this account. O'Meara v. Interurlan St. By. Co., 87 Supp. 405. 22. Giving security. — Usually where it appears that the partj'^ against whom a default judgment has been taken is irresponsible an undertaking will be required to cover costs at least, and the judgment will be allowed to stand as security. Bricker v. Train, 86 Supp. 292. 23. Default in pleading — The general rule is well estab- lished that a motion to open a default in pleading will be denied unless a copy of the proposed pleading is attached to the moving papers. Schumpp v. Interurhan St. By. Co., 81 App. Div. 576 ; 81 Supp. 366 ; Allen v. Fowler & Wells Co., 45 App. Div. 506; 61 Supp. 325. And this rule applies to municipal corporations. Meyer v. City of N. T., 80 App. Div. 584 ; 80 Supp. 774. 272 bkadbury's Lansing's forms and practice. Defaults — Taking and Opening. 24. The negligence of an attorney may be ground for opening a default, but usually the relief will be granted in such cases only upon proper terms. Simon v. Borden's Con- densed Milk Co., 84 Supp. 476. 25. Engagement of counsel may be a good ground for opening a default, even though the one against whom the de- fault is taken has stipulated to by the case on the day the de- fault is taken. Tiedemann v. Dry DogJc, etc., H. Co., 62 App. Div. 611 ; 70 Supp. 819. 26. Absence of counsel on expectation that the prior case on the calendar would occupy more time than it did take, while sufficient excuse for opening a default, terms should be imposed of full costs of the judgment. Goodness v. Met. St. By. Co., 49 App. Div. 76 ; 63 Supp. 476. See also Hyman v. Londoji Assur. Corp., 60 Supp. 355. 27. Laches. — The general rule is to require that there shall not have been undue delay in moving to open a default, con- sidering the circumstances of each case. It is manifest that no general rule can be formulated which will be applicable to all cases. It has been held that a delay of fifteen years in moving to open a default is sufficient reason for denying the motion. Bishop v. Fuller, 34 Misc. 813 ; 68 Supp. 1131. Delay of two months by a municipal corporation in moving to open a default, — held not to amount to inexcusable laches. Shaw V. City of N. Y., 59 App. Div. 568 ; 69 Supp. 669. Delay of a year, when, the plaintiff had in the meantime be- come insolvent, — held, to be sufficient ground for denying a motion to open a default. Conant v. American Rubber Fire Co., 37 Misc. 129 ; 74 Supp. 409. In case of laches costs are invariably imposed. COMMON FORMS. 273 Defaults — Taking and Opening. Form No. ITG. Affidavit of Merits by Party.i (Rules 23 and 24, Gen. Rules of Prao.) [Title.] State of New Yoek, ) . County of ) A. B., being duly sworn, deposes and says that he is the de- fendant in the above-entitled action ; that he has fully and fairly stated the case in the above-entitled action to C. D., his counsel in this action, who resides at in the City of ; that deponent has a good and substantial defense upon the merits to the cause of action set forth in the com- plaint, as deponent is advised by his said counsel after such statement made as aforesaid, and verily believes to be true. Sworn to, etc. Form 'No. Hit. Affidavit of Merits by Attorney.^ (Rule 24, Gen. Rules of Prac.) [Title.] State of New Yoek, CoiriTTY OF New Yoek, C. D., being duly sworn, deposes and says that he is an at- torney and counselor at law and resides at in the 1 See Form No. 177 and note thereto. 2 An affidavit of merits to open a default should be made by the party, under Rule 23 of the General Rules of Practice, which provides as follows; "Whenever it shall be necessary, in any affidavit to swear to the advice of counsel, the party shall, in addition to what has usually been inserted, swear that he has fuUy and fairly stated the case to his counsel, and shall give the name and place of residence of such counsel. When an affidavit of merits has once been filed and served, no other shall be necessary. But on making a motion, such service and filing must be shown by affidavit." Rule 24 of the General Rules of Practice provides for an affidavit of merits Vol.. 1—18 274 Bradbury's Lansing's forms and practice. Defaults — Taking and Opening. City of ; that lie has been retained by A. B., the de- fendant above named, to defend the above-entitled action, and that from a statement of the case made to deponent by the defendant, deponent verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint (or to some part thereof). Deponent further says that the cause of action set forth in the complaint is as follows : {Here state concisely the cause of action contained in the complaint, together with the relief de- manded). Deponent further says that no extension of time to answer or demur has been granted, by stipulation or order herein except as follows : {Here specify any extensions already had). Sworn to, etc. by an attorney or counsel, only for the purpose of securing an extension of time to answer or demur. For such a purpose either an affidavit of merits by the party or an affidavit of merits by the attorney may be used. Rule 24, provides as follows:. "No order extending a defendant's time to answer or demur shall be granted unless the party applying for such an order shall present to the judge to whom the application shall be made an affi- davit of merits, or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action that from the statement of the case in the action made to him by the defendant he verily believes that the de- fendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint, or to some part thereof. The affidavit shall also state the cause of action and the relief demanded in the complaint, and whether any or what extension or extensions of time to answer or demur have been granted by stipulation or order, and where any extension has been had, the date of issue shall be the same as though the answer had been served when the time to answer first expired. "When the time to serve any pleading has been extended by stipulation or order for twenty days, no further time shall be granted by order, except upon two days' notice to the adverse party of the application for such order." From the language of Rule 24, it seems that whether the affidavit to secure an extension of time to plead is made by the party or the attorney, it should always state the cause of action and the relief demanded, and whether any and what extension of time to answer or demur has been granted by stipula- tion or order. COMMON FORMS. 275 Defaults — Taking and Opening. Form No. 178. Affidavit on Motion to Open Default.' [Title.] State of ISTew Yoek, \ COITNTT OF f A. B., being duly sworn, deposes and says that he is the defendant in the above-entitled action ; that judgment was taken against deponent in said action on the day of , 19 — , which said judgment was filed and docketed in the oiiice of the Clerk of County on the day of ■ 19 — . {Or state other default which has ieen take?i.) Deponent further says that {Here state circumstances under which default was taken and excuses therefor hy the party ap- flying to open the same). Deponent further says {Sere state the reason why the affidavit is not made hy tlie party, if not so made, and the circum,stances which show how the affi,ant secured knowledge of the facts stated). Sworn to, etc. Form No. 179. Indorsement on Papers of Non- Appearance of Party in Open Court. The within named A. B. having been duly called in open court at 10:30 o'clock in the forenoon on the day of 1 This affidavit should be in addition to a regular affidavit of merits, although, if made by the party, there is no reason why it should not be part of the affidavit of merits. Usually it should be made by the party or some good reason shown why the party cannot make it. Henry & Co. v. Talcott, 89 App. Div. 76; 85 Supp. 98; Mutual Loan Assn. v. Lesser, 81 App. Div. 138; 80 Supp. 1112; Tompkins v. Continental Nat. Bk., 71 App. Div. 330; 75 Supp. 1099; Ryan v. Duffy, 54 App. Div. 199; 66 Supp. 649. But where the default or neglect is that of the attorney and not of the client, the at- torney's affidavit is properly submitted in place of the client's on a motion to open a default. Kent v. /Etna Ins. Co., 88 App. Div. 518; 85 Supp. 164. 276 BRADBURY'S LANSING'S FORMS AND PRACTICE. Deposit in Court. , 19 — , and not appearing in answer thereto, his de- fault is hereby noted. Dated , 19—. C. D. Justice Supreme Court. XI. DEPOSIT IN COUKT. NO. FORM. PAGE. 180. Order for payment of money out of court 280 1. Code provisions.— A party arrested may deposit in court the sum specified in the order of arrest instead of giving bail. Code Civ. Pto. § 573 ; either before or after entry of judgment where an execution has not been issued. Code Civ. Pro. § 574. And a person arrested or attached in civil process who is entitled to release on bail or to jail liberties may make a deposit with the sheriff instead of giving an undertaking. Code Civ. Pro. % 582 ; and the sheriff must thereupon give the prisoner a certificate of the deposit and discharge him from custody. Code Civ. Pro. § 582. The sheriff must pay the de- posit into court within four days after receiving it, and take two certiiicates of payment from the officer receiving it, one of which he must deliver to the plaintiff and the other to the defendant. Code Civ. Pro. § 583. An undertaking may be substituted in place of a deposit at any time before the expiration of the right to be discharged on bail. Code Civ. Pro. § 584. The money deposited in lieu of bail must be applied under the direction of the Court to the satisfaction of the judgment, if any, which is rendered. Code Civ. Pro. § 585. If the defendant wishes a deposit paid to any person except himself in the event that he eventually becomes entitled to receive it he must, before the deposit is paid into court, deliver to the sheriff, a written direction to pay it to a third person therein specified, " in the event that the defendant becomes entitled to a return thereof but without expressing any other contingency." A direction must be acknowledged or proved and certified in like manner as a deed to be recorded, and the COMMON FORMS. 277 Deposit in Court. sheriff must deliver to the othcer who receives the deposit, who must enter the substance thereof with the entries of the deposit on his books and upon the two certificates of payment into court. Code Civ. Pro. § 586. If the sheriff fails to pay the deposit into court he is liable as bail. Code Civ. Pro. § 587. A person arrested in a marine cause by an order of the City Court of the City of New York may make a deposit instead of giving bail. Code do. Pro. § 3180 ; and in such a case, if the money is deposited with the sheriff, he must pay it into court the next day after receiving it. Code Civ. Pro. § 3181. Money paid into court in an action in the City Court of the City of New York must be paid direct to the Chamberlain of the City of New York to tlie credit of the cause in which it is paid. Code Cim. Pro. % 3161. Where a party to an action admits holding money as trustee for another party, the court may grant an order upon a notice that it be paid into or deposited in court. Code Civ. Pro. % 717 ; and disobedience of the order may be punished as for contempt. Code Civ. Pro. § 718. A party bringing money into court pursuant to the direction of the court is discharged thereby from all further liability to the extent of the money so paid in. Code Civ. Pro. % 743. A party may make a deposit in court in place of giving an undertaking on appeal. Code Civ. Pro. § 1306 ; and this applied to an appeal from a surrogate's decree. Code Civ. Pro. § 2575. A surrogate may require that securities belonging to an estate be deposited with him or delivered to the county treas- urer or deposited with a trust company in order that the bond of an executor, administrator, guardian or other trustee may be reduced in amount where the surrogate deems it inexpedi- ent to require security in the full amount prescribed by law. Code Civ. Pro. § 2595. A temporary administrator must deposit the money belong- ing to the estate within ten days after it comes into his hands. Code Civ. Pro. § 2678 ; and money so deposited cannot be 278 BRADBURY'S LANSING'S FORMS AND PRACTICE. Deposit in Court. withdrawn except upon the order of the surrogate, a certified copy of which must be presented to the depositary. Code Civ. Pro. § 2680. Letters of temporary administration raa}' be revoked if the deposit is not made. Code Ci/o. Pro. § 2691. In coudemnatiou proceedings where an award has been made a deposit of money to the credit of or payable to the order of the owner pursuant to the direction of the court is deemed a payment within the provisions of the condemnation law. Code Civ. Pro. § 3371. Money or securities may be deposited in court to discharge a mechanic's lien. Code Civ. Pro. § 3413. 2. Unless authorized by statute a deposit of money can- not be accepted in lieu of an undertaking. Bate v. McDowell, 48 Super. Ct. 219. 3. Property subject to deposit. — While courts sometimes require articles of personal property other than money to be stored, or remain undisturbed pending a litigation, only money is subject to deposit in court, in the absence of a specific stat- ute authorizing the deposit of securities or articles other than money. SJiotwelly. Wendover, 1 Johns. 65. 4. Authority to accept deposit. — As a general rule, it is necessary that an order or decree be made authorizing the de- posit, before the officer has power to accept the same, in the absence of a statutory provision covering a particular case. Baker v. Hunt, 1 "Wend. 103. 5. With whom made. — The deposit must be made with the particular officer mentioned in the statute or order, and a payment to a referee is not ordinarily a payment into court. Becker v. Boon, 61 N. T. 317. 6. Investment of funds by officer — There is no rule which prevents the officer in custody of funds deposited in court, from aggregating in one mortgage the funds of several bene- ficiar'ies. Chesterman v. Eyland, 81 N. Y. 398 ; Elkin v. Mkin, 29 Misc. 513 ; 61 Supp. 949. COMMON FORMS. 279 Deposit in Court. When the city chamberlain has invested several funds de- posited with him in one mortgage, and it appears there will be a loss on the investment when the property is sold, the person on whose behalf a particular deposit was made, will not be allowed to draw out the full sum to his credit until the entire loss is ascertained and apportioned among all of those who are interested in the various deposits. Elhin v. Eikin, 29 Misc. 513 ; 61 Supp. 949. 7. Payment out of court. — On all applications of payment over of money paid into court, the applicant must procure the officer's certificate, with whom it is deposited, showing the amount and mode of investment, and the claims, if any, made thereon. Hnlhert v. McKay, 8 Paige, 651. In no case should money deposited in court be paid out ex- cept upon the order of the court. Winslow v. Carthage, etc., R. Co., 82 Hun, 220 ; 32 Supp. 56 ; City Bank v. Bangs, 4 Paige, 285. Money which has been paid into court should not be repaid to the beneficiaries, except upon notice to all interested in the deposit, and to all who have appeared in the action in which such money was deposited. Ulil v. Kohlmann, 52 App. Div. 455 ; 65 Supp. 197. Kule 69 of the General Kules of Practice, which authorizes payment to the person entitled thereto or to his attorne^y, of money deposited in court, has no application where the Code requires that payment shall be made directly to the party. TJhl V. Kohlmann, 52 App. Div. 455 ; 65 Supp. 197. 8. Summary proceedings may be taken against those who procure the payment of money deposited in court by collusion, fraud or misrepresentation. Keiley v. Dusenhury, 42 Super. Ct. 238 ; afl'd 77 N. T. 597. Uhl v. Kohlmann, 52 App. Div. 455; 65 Supp. 197. An attorney who procures the payment to a client, out of a fund deposited in court, of a greater sum than that to which 280 Bradbury's Lansing's forms and practice. Deposit in Court. the client is entitled, may be personally required by a summary order of court to restore the overpayment. ZTJil v. Kohlmann, 52 App. Div. 455 ; 65 Supp. 197. 9 . A depositary is protected in paying out money deposited in court pursuant to the order of the court, although the order was improperly obtained. People ex rel Morris v. Randall, 73 N. Y. 416. Form ]Vo. 180, Order For Payment of Money Out of Court. At a special term, etc. {as informofa court order). [Title.] It appearing from the aifidavit of A. B., sworn to the day of , 19 — , and the certificate of the City Chamberlain of the City of New York that there was deposited to the credit of the above entitled action on the day of , 19 — with said City Chamberlain, the sura of dollars, and that the same together with interest thereon still remains on deposit with said City Cham- berlain, and a motion having been made by C. D. for an order requiring said City Chamberlain to pay the same over to him or to his attorney, and notice of said motion having been duly served on E. F., G. H., and I. J., being all the parties Avho ap- peared in said action or who are in any Avise interested in said deposit, and said motion having come on regularly to be heard, Now on reading and filing the said affidavit of A. B. and the Certificate of the City Chamberlain of New York City, and on motion of X. Y., attorney for said C. D., and no one appearing in opposition thereto {or if the motion is opposed recite the at- torneys appearing in opposition) it is Ordered that the said City Chamberlain of the City of New York, be and hereby is directed and empowered to pay over COMMON FORMS. 2,81 Extension of Time. to C. D. or his attorney, X. Y., the sum of deposited as aforesaid. Enter, K. L. A copy. Justice, Supreme Court of the M. ]Sr. State of New York. Clerk. Countersigned,^ K. L. Justice, Supreme Court of the State of New York. XII. EXTENSION OF TIME. No. FORMS. Page. 181. Stipulation extending time to plead and to accept short notice of trial 284 182. Affidavit to procure an extension of time to answer or demur. . . . 285 1. Distinction between extension and stay, — An extension of time does not, except incidentally, act as a stay of proceed- ings of the party against whom it is granted. Thus an ex- tension of tinie to answer, does not stay any proceeding on the part of the plaintiff, but it does actually postpone the time at which the plaintiff can enter a judgment by default. Other incidental stays of this nature may be caused by an extension of time. Conversely an order staying proceedings does not extend the time of the other party to plead. Sniffen v. Feoh, 6 Civ. Pro. R. 188. 3. How procured. — An extension of time may be, and usu- ally is procured by stipulation in writing between the parties, and unless it is in writing, it is not binding. It may also be procured by an order of court in which case the provisions of Rule 23 of the General Eules of Practice should be carefully observed. 3. The Code provides that when the time within which a 1 The usual practice in procuring the payment of money out of court in to have the order entered as a court order, then have a copy thereof certified by the clerk, and then have the judge who made the order countersign the certified copy. 282 beadburt's Lansing's forms and practice. Extension of Time. proceeding in an action, after its commenceraent, must be taken has begun to run and has not expired, it may be enlarged upon an affidavit showing grounds therefor, by the court, or, by a judge authorized to make an order in the action. Code Civ. Pro. § 781. In serving an order extending the time, a copy of the affidavit on which it was granted, must be served therewith or the order may be disregarded. Code Civ. Pro. § 782. After the expiration of the time within which a plead- ing must be made, or any other proceeding in an action, after its commencement, must be taken, the court upon good cause shown, may, in its discretion, and upon such terms as justice requires, relieve the party from the consequence of an omission to do the act, and allow it to be done, except as otherwise specially prescribed by lavv. Code Civ. Pro. § 783. The ex- ceptions are found in Code Civ. Pro. § 784, which provides that the court or a judge is not authorized to extend the time given by law, withia which to commence an action or to take an appeal, or to apply to continue an action, where a party thereto has died or has incurred a disability, and a time is fixed by the court within which a supplemental complaint must be iTiade in order to continue an action. The foregoing section is qualified to the extent that the court may allow an appeal to be taken within four months after the death of a partv, if the time to appeal has not expired when he died. Code Civ. Pro. § 785. 4. When extension begins. — Unless a definite intent is indicated in an order granting additional time, such time does not commence to run until the time thereby extended would have expired had no order been made. Pattison v. 0^ Connor, 23 Hun, 307. 5. An extension to or until a specified date usually in- cludes that day. Thomas v. Douglass, 2 Johns. Cas. 226. 6. An ex parte stay, like any other ex parte order, may be vacated by the judge who granted it, without notice. Code Civ. Pro. % 772. COMMON FORMS. 283 Extension of Time. 7. Notice of application for an extension of time is required after the expiration of the statutory time. Fries v. Goar, 13 Civ. Pro. K. 152. But the order may be xq^q ex parte where the statutory time for doing an act has not expired. Travis v. Travis, 48 Hun, 343 ; Condon v. Church of St. Augustine, 14 Misc. 181 ; 35 Supp. 382. 8. Under section 27 of the Statutory Construction Law, a number of days specified as a period from a certain day, within which, or after or before which, an act is authorized or required to be done, means such number of calendar days ex- clusive of the calendar day from which the reckoning is made. Sunday, or a public holiday other than a half-holiday, must be excluded from the reckoning, if it is the last day of any such period, or if it is an intervening day of any such period of two days. 3 Cum. cfe Gil. Gen. Stat., p. 3837 ; L. 1892, c. 6Y7. 9. A justice of the peace may, under the Statute, render his judgment on the fifth day after the submission of the cause where the fourth day comes on Sunday. Ruber v. Ehlers, 76 App. Div. 602 ; 79 Supp. 150. 10. In summary proceedings, where a three day notice was given on December 29th, the third day fell on January 1st, and the petition was verified January 2d, it was held that the pro- ceedings were premature, as the tenant had all of January 2d to comply with the notice, and the petition could not therefore properly be made on that day. Bristed v. Eanrell, 20 Misc. 348 ; 45 Supp. 918. 11. Where there was a monthly tenancy and notice to quit was served on October 2d, it was held that the tenant had all of November 2d, to remove from the premises, and sum- mary proceedings begun on that day were premature. Hun- gerford v. Wagoner, 5 App. Div. 590 ; 39 Supp. 369. 284 Bradbury's Lansing's forms and practice. Extension of Time. 12. Periods of "years." — Where the period of time under consideration is one of " years " and not of months or days, Section 27 of the Statutory Construction Law has no applica- tion, as Section 788 of the Code of Civil Procedure has been repealed and the first day is not now excluded in computing the time within which an act may be done, if a period of years is involved. Aultman, Taylor Co. v. Syme, 163 N. Y. 54, reviewing a large number of cases and overruling many New York decisions. 13. Notice of trial. — Eule 24 of the General Rules of Prac- tice, which provides that where an extension of time to plead has been had the date of issue shall be the same as though the answer had been served when the time to answer first expired, does not permit the plaintiff to serve a notice of trial before the service of an answer. Wallace v. Syracuse, etc., R. Co., 27 App. Div. 457 ; 50 Supp. 329. 14. Service of summons after attachment. — The court has no power to extend the time for the service of the sum- mons personally, or begin the publication thereof, beyond the thirty days prescribed by section 638 of the Code of Civil Procedure. Jones v. Fuchs, 106 App. Div. 260 ; 94 Supp. 57. Form No. 181. Stipulation Extending^ Time to Plead and to Accept Short Notice of Trial. [Title.] ' It is hereby stipulated that the time of the defendant to an- swer, demur or make any motion relating to the complaint herein be extended to and including the day of , 19 — ; the date of issue herein to remain the— COMMON FORMS. 285 Extension of Time. day of 19 — ; and the plaintiff agrees to accept short notice of triaP for the terra beginning 19 — . Dated, 19—. A. B. Attorney" for plaintiff. Attorney for defendant. Form No. 182. Affidavit to Procure an Extension of Time to Answer or Demur. (Code Civ. Pro. § 781 ; Rule 24.) [Title.] County of ss. : A. B. being duly sworn deposes and says that he is the at- torney for the defendant in the above-entitled action ; that this action was begun on 19 — -, by the service of a summons and complaint. {Insert an affidavit of meriis, ifune is not suhmitted jejjar'ately, or if one has been filed so state, giving time and place The penalty for failure to file a bond or undertaking seems to be greater than for the failure to file an affidavit or petition. By Rule 4 of the Gen- eral Rules of Practice upon the failure to file a bond or undertaking, the person interested "shall be at liberty to move the court to vacate the pro- ceedings or order as if no bond or undertaking had been given." It is to be observed that there is no provision of the rule giving the right to ex- tend the time within which a bond or undertaking may be filed. As to petitions and affidavits, however, the same rule provides that upon failure to file the same within ten days, the opposing party may move to vacate the order, warrant or writ, and the same shall be vacated by the court "unless for proper cause shown, time to file the same shall be extended." Upon an application to vacate a proceeding for failure to file the affidavit or petition, the court has discretion as to whether or not it will grant the COMMON FORMS. 287 Filing. any party to the action or special proceeding or other person interested may move the court to vacate the proceeding or order as if no bond or undertaking had been given. Rule 4, Oen. Rules of Prac. ; Code Civ. Fro. §816. This applies to an undertaking on appeal ; Code Oiv. Pn;. § 1307 ; which undertaking is not effectual until filed. Webster v. Stevens, 3 Abb. Pr. 227. It applies also to an undertaking given as security for costs ; Code Civ. Pro. § 3272 ; undertakings on appeal from Surrogates' Courts ; Code Civ, Pro. § 2581 ; also to an administrator's bond ; Code Civ. Pro. § 2007 ; an under- taking to secure an order of arrest ; Code Civ. Pro. % 562, and an undertaking given to secure a warrant of attachment. Code Civ. Pro. % 639. A petition, to secure a State writ shall be filed. Rule 4, Qen. Rides of Prac. Injunction. — An affidavit on which an injunction is granted should be filed within ten days after the same has been served. Rule 4, Gen. Rules of Prac. An undertaking on file should not be cancelled except upon the consent of all those who are interested. Drydvck, etc., R. Co. v. Cunningham, 45 How. Pr. 458. Affida/oit on attachment should be filed within ten days after the granting of the warrant. Code Civ. Pro. § 639 ; Rule 4 Gen. Rules of Prac. And in case of failure to file the affi- davit, the opposing attorney may move to vacate the warrant and the same shall be vacated unless, for pi'oper cause shown, time to file the same shall be extended. Rule 4, Gen. Rules of Prac. Neglect of the plaintiff to file the affidavit on which the warrant of attachment is granted within ten days, does not affect the validity of the warrant until it is set aside by order. Lewis V. Douglas, 53 Hun, 587; 6 Supp. 888. motion to vacate the order, warrant or writ, while for failure to file the bond or undertaking, no discretion is given but the party has a right to move as if no undertaking had been given. As to whether or not the court has power to permit the filing of an undertaking nunc pro tunc, see Dreckerhoff v. Ahlbom, 2 Abb. N. C. 372; Leffingwell v. Chabe, 19 How. Pr. 54. 288 BRADBURY'S lansing's for:\is and practice. Filing. Arrest. — Upon a motion to set aside an order of arrest for failure to file the undertaking, the court may permit the un- dertaking to be filed nunc ^'ro tunc. Blerlterhoff v. Ahlhorn, 2 Abb. N. C. 372 ; Leffingwell v. ChaU, 19 How. Pr. 54. All affidavits used on a motion should be filed and speci- fied in the order and the clerk shall not enter the order un- less the papers are filed. Rule 3, Oen. Rules of Prac. An ex parte order of a judge., need not, as a rule, be en- tered, although the papers upon which it is granted should be filed. Albrecht v. Canfield, 92 Hun, 240; 36 Supp. 940. Even though the order was granted by a judge out of court. Savage v. Relyea, 3 How. Pr. 276 ; Sinnot v. First Nat. BJc., 34 App. Div. 161 ; 54 Supp. 417. Upon entering judgment the clerk should immediately file the judgment-roll containing the papers specified in Code Civ. Pro. § 1237. After a judgment-roll is filed, it should be docketed ac- cording to the provisions of Code Civ. Pro., § 1246. Supplementary p>roceedings. — The court may compel the fil- ing of an atfidavit made to secure an order for the examina- tion of a party in supplementary proceedings, although such afiidavit may tend to criminate the party who made it. Sin- nott V. First Nat. BJc, 34 App. Div. 161; 54 Supp. 417. And where an examination has been had under such an order the order and examination must be filed with the county clerk. Fiske V. Twigg, 5 Civ. Pro. E. 41 ; Rennerx. Meyer, 22 Abb. K C. 438; Sinnott v. First Nat. PL, 34 App. Div. 161 ; 54 Supp. 417. Notice of filing need not be given when the paper is filed in compliance with an order of court. Ponoy v. Hoyt, 1 Code P. (N. S.) 286. 2. Where and when filed. Jiidgments shall only he entered or docketed vsx the office of the clerks of the courts of this state within the hours during which by law they are required to keep open their respective offices for the transaction of business and at no other time. COMMON FORMS. 289 Filing. Rule 8, Oen. Rules of Prac. Thus where a chattel mort- gage was handed to a clerk at 10 p. m. out of his office and indorsed as filed at that hour, it was held not to have been filed before the clerk deposited it in his office during office hours on a subsequent day. Hathaway v. Howell, 54 IST. Y. 97. Orders granted one county entered in another. — If an order in the Supreme Court is to be entered in a county other than that in which it is made the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rough minutes showing what papers were used or read together with the affidavits and papers used or read upon such motion, with a note of the de- cision thereon, or the order directed to be entered, properly certified. It shall be the duty of the party to whom such papers are dehvered to cause the same to be filed, and the proper order entered in the proper county within ten days thereafter, or the order may be set aside as irregular, with costs. Rule 3, Gen. Rules of Prac. Change of place of trial. — Where the place of trial of an action is changed, the clerk of the county from which it is changed must forthwith deliver to the clerk of the county to which it is changed, all papers filed in the action and certified copies of all minutes and entries relating thereto, which must be filed, entered or recorded as the case requires in the office of the last named clerk. Code Civ. Pro. § 988. Rule 2, Gen. Rules of Prac. Appellate Pivision. — The papers in cases pending in the Ap- pellate Division shall be filed with the clerk of such division of the department in which the case is pending. Rule 2, Gen. Rules of Prac. In all other cases where no provision is made by the Code, papers in the Supreme Court shall be filed in the office of the clerk of the county specified in the complaint as the place of trial. In Surrogates' Courts, in the office of the Surrogate; in other courts of record, in the office of the respective clerks thereof. Rule 2, Gen. Rules of Prac, YoL. 1—19 290 Bradbury's Lansing's forms and practice. Filing. As to vjhere a return or other paper in a special proceeding shall be filed, see Code Civ. Pro. § 825. 3. By whom filed. Uj)on the successful party neglecting to enter a jadgraent, the unsuccessful party may do so in order to appeal therefrom. Thom/pson v. Schieffelin, 4 Civ. Pro. R 270. Or the unsuccess- ful party may procure an order upon motion to the court com- pelling the plaintiff to enter a judgment. Skinner v. Quin, 43 N. Y. 99. While it is the duty of the successful party to make up the judgment-roll, the clerk may, at his option, make up the entire judgment-roll himself. Code Civ. Pro. § 1238, and in filing the judgment-roll the clerk must make a minute upon the back of each judgment-roll filed in his office of the time of filing it, specifying the year, month, day, hour and minute. A pro- ceeding to enforce or collect a final judgment cannot be taken until the judgment-roll is filed. Code Civ. Pro. § 1239. 4. Removing or altering papers on file. A process, pleading or other record once filed by the Clerk cannot be altered or any change made therein, or withdrawn without an order of the court. Code Civ. Pro. § 72T. Wash- hu7'n V. Gillett, 4 Law Bull. 22. An order cancelling papers should not order their physical removal from the files. Id. Lost paper. — If an original pleading or paper is lost or with- held by any person, the court may authorize a copy to be filed and used instead of the original. Code Cim. Pro. % 726 ; Ren- ouil V. Harris, 2 Sandf . 642. An affidavit or other faper may he stricken, from the files if it contains scandalous or impertinent matter and in such a case costs may be imposed upon the attorney who filed the paper. Mc Vey v. Cantrell, 8 Hun, 522. Photographs and measurements under the Bertillon system of an inmate of a State prison are public records and cannot be stricken from the records after a reversal of the conviction COMMON FORMS. 291 Filing. of a prisoner and an acquittal upon a new trial. MoUneux v. Collins, 111 N. Y. 395, affirming 88 App. Div. 618. Default; amending camplaint; foreclosure. — If a defendant does not appear in a foreclosure suit the complaint as served cannot be amended without order of the court. Durham v. Chapin, 13 App. Div. 94 ; 43 Supp. 342. Form No. 183. Affidavit to Compel Filing of Summons or Pleading. (Code Civ. Pro. § 824.) [Title.] CotTNTY OF SS. : A. B., being duly sworn, deposes and says that he is the at- torney for the defendant {or plaintiff) in the above-entitled action ; that the complaint {or summons, ariswer or other plead- ing) was served upon deponent as such attorney {if a summons was served on the defendant) on the day of 19 — ; that more than ten days have elapsed since said service and said complaint {or other paper as specified above) has not been filed with the clerk of this court and that deponent has made diligent search in the office of the clerk of the said court and said paper cannot be found {in place of the affidavit of the attorney that diligent search has heen made, there mayle submitted a certificate of the clerk that such paper is not on file. That no previous application for an order compelKng the plaintiff to file said complaint has been made. Sworn to, etc. A. B. Form Tfo. 184. Order Compelling the Filing of a Summons or Pleading. (Code Civ. Pro. § 824.) [Title.] It appearing to my satisfaction by the annexed affidavit of A. B. sworn to the day of 19 — {and the cer- 292 bradbuey's Lansing's forms and practice. Folioing. tificateof the clerk of this court, dated day of ■ 19 — ) that the complaint {or other paper) in this action was served on the day of 19 — and that more than ten days have elapsed since said service and that said complaint {or other paper) has not been filed in the office of the clerk of this court and that no previous application for an order compelling the filing of the same has been made; Now on reading and filing said affidavit, {and certificate) and on motion of A. B., attorney for the plaintiff {or defendant) herein, it is hereby Ordered that the plaintiff {or defendant) tile in the office of the clerk of this court said complaint {or other paper) on or be- fore the day of 19 — ; that upon the failure of the plaintiff {or defendant) to file said complaint {or other pape)) within the time herein specified, said complaint {or other pa-per) shall be deemed abandoned. Dated the day of 19 — . C. D. Justice of the Supreme Court of the State of New York. Xiy. FOLIOING. NO. FORM. PAGE. 185. Notice indorsed on paper returned because not folioed 294 1. "A folio is 100 words, counting as a word each figure necessarily used." Stat. Cons. L., § 11. In actual practice, how- ever, the strict statutory requirement is not usually followed, and a folio mark is placed at the beginning of eacli eleventh line, making ten lines of typewritten matter in each folio. AS the object of folioing is merely convenience of reference in long documents, the practice above outlined has not been questioned. Originally, a folio meant one jiage, and when reference was made to a folio, therefore, a particular page of a document was understood. One hundred words was selected as the size of a folio probably because one page of manuscript formerly con- tained about that many words. COMMON I'ORMS. 293 Folioing. 2. Papers which mast he folioed ; penalty for failure. — Every pleading, deposition, affidavit, case, bill, exceptions, re- port, paper, order or judgment exceeding tAvo folios in length shall be distinctly numbered and marked at each folio in the margin thereof, and all copies, either for the parties or the court, shall be numbered or marked in the margin so as to con- form to the original draft or entry and to each other. Itiile 19, Oen. Bules of Prac. And if not so folioed, the clerk shall not file the same, nor will the court hear any motion or appli- cation founded thereon. Id. No clerk of the court shall file, or enter a paper which does not comply with this rule. Id. A party upon whom a paper is served shall be deemed to have waived the objection of noncompliance with this rule, unless within twenty-four hours of the receipt thereof, he returns such paper to the party serving the same with a statement of the particular objection to its receipt ; but this waiver shall not apply to papers required to be filed or delivered to the court. Id. 3. An affidavit and order extending the time to answer may be returned if not folioed if done \vithin twenty -four hours, notwithstanding the defendant is in default thereby. Silleok V. Dahut, 35 Misc. 134 ; 71 Supp. 316 ; and see Goldstein v. Marx, IS App. Div. 545 ; 7Y Supp. 956. 4. A judgment entered pursuant to a direction of the court, but which is not folioed, is not void, but merely irregular, and service of a copy thereof with a notice of its entry will be ef- fective to limit the time to appeal, unless the judgment be set aside for irregularity. If a party desires to take advantage of the irregularity, he is bound to return it properly indorsed. JV. Y. City Baptist Society v. Tabeniade Ohurch, 9 App. Div. 527 ; 41 Supp. 720. A judgment once filed and regularly en- tered, except that it is not folioed, should not be vacated be- cause of the failure to folio and may be amended in regard to this particular defect. iV". T. City Baptist Society v. Taber- nacle Ohurch, 10 App. Div. 288 ; 41 Supp. 976. 5. For the purpose of pleading it is not permissible to deny 294 Bradbury's Lansing's forms and practice. Folioing. the allegations between certain folios of a complaint, without further specif3'ing the matter which is denied. The reason for this is that where an appeal is taken the folios are invariably changed, and so the denial in an answer of certain matter con- tained between particular folios in a complaint has no mean- ing whatever after papers are printed on appeal and contain new foho marks. It has been held, therefore, that such a denial is insufficient, and that under Code Civ. Pro. § 500, an allega- tion which is thus denied is not deemed to be controverted at all. Baylis v. Stimson, 110 N. Y. 621 ; Avery v. N. Y. Cen- tral, etc., B. Co., 6 Supp. 5i7 ; 24 St. Eep. 918 ; Yarnum\. Hart, 47 liun, IS ; Caulkins v. Balkan, 98 N. T. 511 ; Crosley v. Coll, 3 How. Pr. (N. S.) 37. 6. Teriflcation not part of pleading. — Where an answer was less than two folios in length, but the answer and affidavit of verification together exceeded that number of folios, it. was held that the answer and verification could not be taken to- gether, and that it was not necessary to folio the answer. German American Bank v. Cham^lin, 11 Civ. Pro. P. 452. Form No. 185. Notice Indorsed on Paper Returned Because Xot Folioed. (Rule 19, Gen. Rules of Prao.) Sir :— Please take notice, that the within is hereby re- turned to you for the reason that the same is not folioed as required by Pule 19 of the General Pules of Practice. Dated 19—. Yours, etc., A. B. To Attorney for C. D., Esq., Attorney for COMMON FORMS. 2')5 Indorsement. XV. Indorsement. 1. Title. — All pleadings and other proceedings and copies thereof must be indorsed with the title of the case or the clerk shall not file the same, nor will the court hear any applica- tion or motion founded thereon and if not so indorsed, the party upon whom they are served may return them, if he does so within twent^'-four hours after the receipt thereof, otherwise such party is deemed to have waived the require- ment of the rule : but the waiver does not apply to papers required to be filed or delivered to the court. Rule 19, Oen. Rules of Prac. 2. Attorney's name and address. — All papers served or tiled must be indorsed or subscribed with the name of the attorney or attorneys, or the name of the party if he appears in person, and his or their office address or place of business. Rule 2, Oen. Rules of Prac. And in the absence of the attorney's address the paper may be returned to the party. Taylor v. Mayor, etc., of N. Y., 11 Abb. Pr. 255. Rule 2 of the General Rules of Practice does not specif}' any penalty for failure to comply therewith, and it has theivi- fore been held that the omission to indorse upon a notice of entry of judgment of affirmance, the address of the attorney serving it, as required by the rule, in some cases at least, is an irregularity merely, which is waived by the retention of the paper by the attorney upon whom it has been served. Evans V. Backer, 101 IST. Y. 289 ; Porsey v. Cum.mings, 48 Hun, Y6. In Evans v. Backer, (101 N. Y. 2S9), the doctrine of Kelly v. Sheehan, (76 jST. Y. 325), was limited to cases for a penalty or forfeiture. In Kilmer v. Eathorn, (78 N. Y. 228), it was also held that the failure of the attorney to indorse Ms office address or place of business on the notice of entry of judg- ment made the notice defective so that the time to appeal from the judgment thus served did not begin to run by the service of such notice. In the later case of Evans v. Backer, (101 N. Y. 289), the case of KUnter v. IlatJwrn, supra, is men- 296 Bradbury's Lansing's forms and practice. Indorsement. tioned, and the court remarks that in the Kilmer case the de- cision was justified, upon the ground that it defeated a point equally technical raised by the adverse party. In Evans v. Backer, (101 IST. Y. 289), the court remarks that the interpre- tation of the Supreme Court rule is properly made by the Supreme Court, and that the Court of Appeals will not inter- fere with such interpretation. From these cases the correct doctrine would seem to be that if a part}' receiving such a notice, retains the same, he waives the requirement of the Eule, except to limit the time to appeal. See Adler v. Todd, 38 Misc. T98 ; Y8 Supp. 1106 ; Milligan v. Cottle, 92 Hun, 323 ; 36 Supp. 904. In Evans v. Backer, (101 N. Y. 289), the address of the attorney did not appear anywhere on the paper served. The court held, however, as already stated, that a retention of the paper constituted a waiver of the irregularity. The notice in this case, however, was served as a prerequisite to bringing an action against sureties. The distinction between this case and Kelly v. Sheehan, (76 N. Y. 325) and Kilmer v. Hathorn, (78 N. Y. 228) is rather subtle. Moreover, in Forst'inann v. Shult- ing, (107 ]S^. Y. 644) the doctrine of the earlier cases seems to be reaffirmed, as a memorandum decision was made strictly on the authority of the Kdly and Kilmer cases. The Kelly, Kilmer and Eorstmann cases all arose on the sufficiency of a notice of entry of judgment to limit the time to appeal. They are all cited in several late cases as authority for the proposi- tion that strict practice must be pursued to limit the time to appeal. The question whether the service of a notice of entry of judgment, which nowhere contains the attorney's address, will limit the time to appeal, if such notice is retained, does not seem to have been directly decided, but in view of the de- cision in Em'stmann v. Shulting, (107 IST. Y. 644) after Evans V. Backer, (101 N. Y. 289) the law would still seem to be that to limit the time to appeal, at least, the notice must contain the attorney's address, somewhere, and if it does not the re- tention of it does not waive the defect. See Langdon v. Evans, 29 Hun, 652. COMMON FORMS. 297 Motions and Orders. 3. Two papers bound together. — ^Eule 2 does not require that the office address of the attorney be stated more than once upon the same papers, or set of papers. Falker v. N. Y. W,M Shore d: B. R. Co., 100 N. Y. 86 ; Harnett v. WestcoU, 2 Supp. 10. 4. Summons. — The failure to subscribe the attorney's name to the copy of a summons which accompanies a com- plaint wherein the name of the attorney appears, and where the original summons contains the name of the attorney, is not such a defect as requires a judgment to be entered upon the service of such a summons, to be vacated. Hull v. Oan- andaigua Light Qo., 55 App. Div. 419 ; 66 Supp. 865. The omission to specify the post office address or street number of the attorney in a summons does not make the sum- mons void, but the omission may be supplied by amendment. Wiggins v. Richmond, 58 How. Pr. 376. XVI. MOTIONS AKD OEDEES.' (a) MOTIONS. (Page 299.) ( & ) ORDERS. (Page. 326.) FORMS. NO. PAGE. 186. Notice of motion 343 187. Notice of motion, another form 344 188. Notice of motion for permission to serve additional affidavits and to enlarge relief supplementing motion already made 345 189. Notice to bring on motion after indefinite adjournment 345 190. Special appearance clause in notice of motion 346 191. Affidavit in support of motion 346 1 This subdivision contains the rules and forms appficable to motions generally and excludes the practice applicable to particular subjects such as pleadings, attachment, arrest, injunction, replevin, mandamus, contempt, etc., as to which see those titles. See also subdivision Affidavits in this chapter. 298 beadbury's Lansing's forms and practick. Motions and Orders. NO. PAGE. 192. Affidavit to procure the deposition of a witness, to be used on a motion for a new trial 349 193. Affidavit of attorney to procure deposition of witness 353 194. Affidavit as to refusal of witness to mal-ce affidavit 354 195. Order to take the deposition of a witness to be used on a motion 355 196. Subpoena to witness to make deposition for use on a motion .... 357 197. Notice of hearing before referee to take deposition of witness when time is not fixed in the order 358 198. Report of referee appointed to take deposition to be used on a motion 358 199. Order to show cause, general form 359 200. Order to show cause, another form 361 201. Recital in an order to show cause allowing further papers to be served before hearing motion 362 202. Counter motion 362 203. Recital in notice of motion to strike enumerated motion from the calendar, for failure to serve papers 363 204. Order of judge transferring a motion returnable before himself, to another judge 364 205. Stipulation transferring motion indorsed on papers 364 206. Recital in notice of motion for rehearing 365 207. Recital in motion to renew 365 208. Affidavit on motion to correct findings 365 209. Motion to correct and resettle findings 366 210. Motion to amend or resettle an order 367 211. Stipulation indorsed on motion papers extending time for a hearing 367 212. Note of issue of motion 368 213. Caption, court order 368 214. Caption of judge's order 370 215. Court order, general form, made on notice 371 216. Court order, another form 372 217. Court order made ex parte 372 218. Judge's order, general form, made on notice 373 219. Judge's order, another form 373 220. Order made in open court without notice 374 221 . Recital in order of stipulation made in open court 375 222. Order made on consent 375 223. Clause in an order as to special appearance and objection to jurisdiction 376 224. Recital as to waiver of objection to jurisdiction 376 225. Clause in an order overruling a preliminary objection 377 226. Order on default of party against whom motion is made 377 227. Order dismissing motion on default of moving party 378 228. Clause in order dismissing a motion without prejudice 378 COMMON FORMS. 299 Motions and Orders. NO. PAGE. 229. Justice's order that additional affidavit may be read on a motion before him, not yet heard 378 230. Recital that the moving party has complied with the conditions of a leave to renew contained in a former order 379 231. Recital where motion is not heard when originally noticed but at a different term, upon a new notice 379 232. Recital in order denying motion and vacating a stay 380 233. Recital denying a motion on condition 380 234. Order declaring waiver of favor granted in previous order 381 235. Recital denying motion because of interlineations and erasures in moving papers 381 236. Specifying motion papers 382 237. Recital of document theretofore filed 382 238. Direction that scandalous and impertinent matter may be ex- punged from the papers submitted on a motion 383 239. Suppressing affidavit read on motion because of scandalous and impertinent matter contained therein 383 240. Recitals as to costs 385 241. Consent to form of order and waiver of notice of settlement. . . . 386 242. Notice of settlement of order 386 243. Notice of entry of order 386 244. Recital in resettled order 387 {a) MOTIONS. 1 . A motion is defined by the statute as being " an ap- plication for an order." Code Civ. Pro. § Y68. Of course in its broad sense it includes many incidental applications to the court, which are not, strictly speaking, apphcations for orders. Thus, during the trial a motion may be made to strike out testimony, for adjournments, and the like, which are not technical motions within the meaning of the statute. Enumerated and non-enumerated motions. — A study of the history of the divisions of motions into the two classes of enumerated and non-enumerated, would serve no useful pur- pose. Briefly the word " enumerated " as applied to motions, originated in the fact that certain more or less formal ap- plications were enumerated in old rules of court which were required to be made at specified times and in a particular man- ner. The pi-esent rules of practice specify which motions are enumerated and provide that all others are non-enumerated. Rule 38, Qen. Bules of Prac. 300 Bradbury's Lansing's forms anB practice. Motions and Orders. '■'■ Enumerated Tnotions v. Village of Sidney, 97 App. Div. 271 ; 90 Supp. 23 ; Smith v. Seattle, etc., R. Co., 19 Supp. 742. Opinion of other court. — In determining a motion, the court is at liberty to consider only such facts as are presented to it upon that motion, and should not determine the motion upon the decision of another court concerning the same, matter where merely the opinion of the other court and not the facts pre- sented to it, was submitted to the court before whom the mo- tion is made. Zeltner v. Zeltner Brewing Co., 85 App. Div. 387; 83 Supp. 366. Answering supplemental affidavits. — If the court allows the moving party to serve additional affidavits to curg a defect in COMMON FORMS. 315 Motions and Orders. his original papers, it is improper for the court to refuse to al- low the opposing party to file new answering affidavits. Poil- lon V. Poillon, 75 App. Div. 536 ; Y8 Supp. 323. If a party serves additional affidavits on the opposing party before the return da}"^ of an. order to show cause, with notice that such additional affidavits will be presented and made a part of the moving papers, and the opposing party does not object to such additional affidavits being considered, he cannot object after the first time on appeal. Ruhino v. Mariano, 65 App. Div. 314 ; 73 Supp. 7. Affidavits which have not been served on the person against whom a motion is made should not be read and received in support thereof, and when this is done the appellate court Avill reverse the order founded thereon. Ohapuis v. Long, 77 App. Div. 272 ; 78 Supp. lOiG ; Poillon v. Poillon, 75 App. Div. 536 ; 78 Supp. 323 ; Matter of Spofford Ave., 76 App. Div. 90 ; 78 Supp. 727. Papers used on previous motion. — A party who desires to use papers which on a previous motion have been recently served upon the adverse party and are still in the latter's pos- session, is not bound to serve such papers again ; notice of his intention to use them is sufficient. Peutermann v. Pollock,, 36 App. Div. 522 ; 55 Supp. 829. On enumerated motions at special term, a copy of the papers on which the motion is based must be served on the opposite party by the party whose duty it is to furnish the papers, at least five days before the argument. Rule 40, Qen. Rules of Prac. 7. Striking out averments in affidavits. — The court has no authority to striiie out relevant averments in an affidavit used on a motion, simply because they are claimed to be un- true. MatUr of Lord, 81 Hun, 590 ; 30 Supp. 1117. 8. Withdrawing motion. — Amotion cannot be withdrawn without either the payment of costs or the consent of the court. Hoover v. Rochester Brewing Co., 2 App. Div. 11 ; 316 Bradbury's Lansing's forms and practice. Motions and Orders. 37 Supp. 419. Nor countermanded so as to deprive the other party of the right to attend and have the motion dismissed. Bates V. Jaines, 8 Super. Ct. (1 Duer) 668. 9. Adjournments of motions. — Calendar rules regarding trials do not apply to motions, and neither side should be forced on with a motion in violation of a written stipulation to adjourn. Lilianthal v. Levy, 4 App. Div. 90; 38 Supp. 936. 10. Vacating notice of motion or order to show cause. — A motion to vacate a notice of motion cannot be entertained, whether it is a simple notice of motion or an order to show cause, as neither one is process of the court. Matter of Van Ness, 21 Misc. 249 ; People v. JST. Y. Cent., etc., R. E. Co., 28 Hun, 543. As shown elsewhere, a judge who grants an order to show cause ex parte, has power to vacate the same order. The de- cision in the above case is merely that a separate motion Avill not be entertained to vacate such an order or notice. 11. Only relief demanded granted. — On a motion brought on by an order to show cause, relief cannot be granted which M'as not specified in the order to show cause. Bequad v. Theiss, 19 Misc. 480 ; 43 Supp. 1066 ; Schiller v. Weinstein, 45 Misc. 591 ; 91 Supp. 76. 12. Review by appeal or motion. — After the facts have been once fairly presented to the court, on a motion, and an order has been made, on notice, the proper method of review is by appeal, and only in exceptional instances can a review be secured in any other way. It is true, as a general proposition, that the same court that makes an order has power, in its dis- cretion, to grant a rehearing and to make an order on such re- hearing which is entirely different from the one first made, but this is rarely done where the rehearing is on the same facts that were presented originally. It must appear that COMMON FORMS. 317 Motions and Orders. there has been a clear misapprehension of the facts, or that some controlling rule of law has been overlooked. The rem- edy, therefore, usually is in such cases by an appeal to correct an error of law. "While, perhaps, the rule in appellate courts re- lating to rearguments is not applied in all its strictness to prac- tice motions, the same general principles are observed in both cases. " A motion for reargument must be founded on pa- pers showing that some question decisive of the case and duly submitted by counsel has been overlooked by the court, or that the decision is in conflict with the statute or a controlling decision." People v. Patrick, 183 N. Y. 52 ; Fosdick v. Town of Hempstead, 126 K T. 651. In rare instances a rehearing is allowed on new facts. For example, where all the parties interested were not before the court on the argument of the original motion. Such was the case in /Sutherland v. Mead, 80 App. Div. 103 ; 80 Supp. 50i. Usually, however, new facts are presented on motions to re- new, generally on leave of the court, and not by motion for a rehearing. Usually an order made by a judge out of court is reviewa- ble by the court on motion, particularly if the original order was made em parte. In manj'' instances the Code provides that an order in a particular case may be made by the court, or a judge or justice thereof. If the order is granted ex parte, it may usually be reviewed by the same judge or court. If either a judge's order or a court order is granted on no- tice, however, and all parties who have an interest in the matter have a chance to be heard, the order then made is absolute and can only be reviewed by appeal, or rehearing if one is granted, in the discretion of the court or judge. In several instances the Code provides the method "of re- viewing specific kinds of orders, particularly those granting provisional remedies, and in such cases the various statutes must be followed. See Code Civ. Pro. % 772. Alternative orders. — If an order is in the alternative form, that is, requiring a party to do a certain act, or show cause why an order should not be made requiring him to do the act. 318 bbadbtjey's Lansing's forms and practice. Motions and Orders. there is no necessity for a specific review, as the original order is merged in the final order made by the court, upon the hearing. But no specific motion can be entertained to va- cate or set aside such an order. Matter of Van JVess, 21 Misc. 249. Subject to the rule, however, that such an order granted ex parte may be vacated by the judge who granted it, either with or without notice. 13. Rehearing and renewal of motion.^ — Difference between motion for rehearing and one to renew. — A motion for a re- hearing is usually based on the same papers and the same facts that were presented to the court, or judge, originally, and is made on the assumption that there has been a misapprehen- sion of the facts, or the order has been otherwise inadvert- ently made, because of an erroneous application of the cor- rect rule of law. The basis of it is an error of law as applied to the facts originally presented. A motion to renew a former motion is, as a rule, based on new facts, which have either arisen since the motion was orig- inally made, or were not then known to the party and could not have been known by the exercise of reasonable diligence. It is sometimes held that a motion based on entirely differ- ent facts from those on which the original motion was based, is not technically a renewal of a motion so as to require leave to renew. Eut usually in such cases there must be not only new facts, but a prayer for different relief also. See Suther- land V. Mead, 80 App. Div. 103 ; 80 Supp. 504. A renewal of a motion is never permitted without leave. Deutermann v. Pollock, 36 App. Div. 522 ; 55 Supp. 829 ; Hoffman v. Livingnton, 1 Johns. Ch. 211 ; Klumppw Gard- ner, 44 Hun, 515 ; Hall v. Emmons, 39 How. Pr. 18Y. A motion once denied cannot be renewed on the same facts except on leave. Qall v. Groll, 58 App. Div. 97 ; 68 Supp. 649. Adoption of new court rule since previous onotion. — A re- 1 See paragraph 12, anie. COMMON FORMS. 319 Motions and Orders. newal of a motion to place a case on the short cause calendar cannot be made without leave, ever though since the former motion was denied the court has adopted new rules doubling the time within which a case must be tried on such calendar. Garner v. Hellman, 47 Misc. 336 ; 93 Supp. 431. Based on tnatter contained in court opinion. — Leave to re- new a motion should not be denied on the strength of matter contained in the opinion of the appellate division on a former motion, if the same matter is not also contained in the order of the appellate court. Malone v. Sts. Peter and PauVs Church, 83 App. Div. 80 ; 82 Supp. 519. Leave granted hy another judge. — It seems that leave to renew a motion previously decided may be granted by a judge other than the one who heard the original motion. Matter of Blackwell, 48 Apjj. Div. 230 ; 62 Supp. 793. One justice of the Municipal Court of the Cit}'^ of New York may hear a motion and grant relief which has been de- nied by another justice, when the second motion is based on new or additional facts. Stromberg v. Di Salvo, 38 Misc. 139 ; 77 Supp. 102. Opening default and setting aside judgment. — A denial of a motion to open a default is not a bar to a motion to set aside a judgment based on facts not before appearing and un- known to the moving party, when the former motion was made. Sutherland v. Mead, 80 App. Div. 103 ; 80 Supp. 504. Denial without prejudice. — No leave is necessary to make a new motion where a former motion is denied without prej- udice to any application to be made on further papers. People ex rel. Tuell v. Paine, 92 App. Div. 303 ; 86 Supp. 1109. Payment of costs. — Permission to renew a motion, upon payment of costs, cannot be exercised until such costs are paid. Murphy V. Kelly, 89 App. Div. 619 ; 85 Supp. 912. The pendency of an appeal is not a bar to an application for leave to renew a motion. First Nat. Bh. v. Clarh, 42 Hun, 90. But see Peel v. Elliott, 16 How. Pr. 483. Extension of time hy renewal. — Permission to renew a mo- tion does not of itself extend the tiuie within which the orig- 320 Bradbury's Lansing's forms and practice. Motions and Orders. inal iTiotion could have beea made, and where there is no order extending the time, the renewed motion should be denied for that reason. Wheeler v. Brady ^ 2 Hun, 347. Where leave is made to renew a motion to correct a judg- ment, and the original motion was made within one year after the entry of the judgment, objection cannot be made to the renewed motion because it was not made within a year from the original entry of the judgment. (Supm. Ct. App. Term.) Oliver v. French, 41 Supp. 106. Before another judge. — The practice of moving before one judge at special term to declare void the order or judgment of another judge at special terms is not sanctioned by any pro- vision of the Code, nor by any controlling authority. Piatt V. N. Y. da Sea Beach By. Go., 170 N. Y. 451, rev'g 63 App. Div. 401. An application to modify an order opening a default should not be made to another judge. Morganstern v. Endelman, 36 Misc. 860 ; 74 Supp. 1138. A motion for a rehearing may be made on the original pa- pers where a right has been denied to a party under a misap- prehension or other inadvertence. Matter of CroMe, 81 Hun, 96 ; 30 Supp. 616. Where the court has ordered a receiver to pay an allowance to attorneys and the receiver subsequently moves on an order to show cause why there should not be a rehearing, the court has power upon such order to show cause coming on to be heard to grant the rehearing and change the order made originally, even as to matters of substance, and make a dispo- sition of the entire matter not contemplated or asked for on the original motion. Matter of National Gramophone Corp. 87 App. Div. 76 ; 83 Supp. 1087. Code Civ. Pro. % 724. — A motion to be relieved from the effect of an order on the ground of " mistake, inadvertence, surprise or excusable neglect," under Code Civ. Pro. § 724, is not an application for a rehearing under the order originally made, and such motion may be made without leave of court. Matter of Blaokwell, 48 App. Div. 230 ; 62 Supp. 793. COMMON FORMS. 321 Motions and Orders. After expiration of time to appeal. — A motion for a rear- gnment or for a rehearing will not be granted after the expi- ration of the time for appealing from a former decision has expired. Klipstein v. Marchmedt, 39 Misc. 79i ; 81 Supp. 31Y ; Matter of SilUman, 38 Misc. 226 ; 77 Supp. 267 ; Meg- gary v. Shipley, 72 Md. 33. And this is so even though the highest court in the State has made a decision contrary to that which was made on the first hearing, between the time of the original decision and the motion for a reargument. Klipstein V. Marchmedt, 39 Misc. 794 ; 81 Supp. 317 ; Matter of SilU- man, 38 Misc. 226 ; 77 Supp. 267. Discretion ; appeal. — A motion for a rehearing or reargu- ment of a motion is generally addressed to the discretion of the court. But the power to grant a rehearing or reargument cannot be exercised arbitrarily, and if the judge grants it upon insuificient grounds it is an error which should and will be cor- rected by an appellate court. Klipstein v. Marchmedt, 39 Misc. 794 ; 81 Supp. 317 ; Matter of Livingston, 34 K Y. 576. 14. Defaults. — Where default is made by one attorney to a motion, the court is not bound to grant unlawful relief under Bule 37 of the Oen. Rules of Prac, but it is incumbent upon the opposite party, upon receiving notice of motion, to advise the court that the relief prayed for is unlawful. People ex rel. N. T. Realty Corp. v. Miller, 92 App. Div. 116 ; 87 Supp. 341. Upon default of the party making the motion, the court shall deny the motion on the filing of a copy of the notice of motion or order to show cause. Rule 37, Gen. Rules of Prac. 15. In any manner altering the affidavits upon which an order to show cause is granted, after the order has been signed, is good ground for refusing the application, based on the order to show cause. Mandello v. Rosati, 30 Misc. 834 ; 61 Supp. 1102. 16. Nonpayment of costs; preliminary objection.— In the event of the nonpayment of the costs of a former motion, Vol. 1—21 322 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. " all proceedings ou the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court until the payment thereof. But the adverse party may, at his election, waive the stay of pro- ceedings." Code Oiv. Pro. § 779. When stay becomes operatwe. — The stay, for nonpayment of motion costs, does not become operative until the time fixed in the order for the payment of the costs has expired, and if no time is specified, until ten days after the service of a copy of the order. Code Civ. Pro. § 779 ; Aiistin v. Winner, 32 Misc. 388 ; 66 Supp. 721 ; Peeder v. Lockwood, 30 Misc. 631 ; 62 Supp. 713 ; Wasserman v. Benjamin, 91 App. Div. 947 ; 86 Supp. 1022. If the order is served hy viail the stay does not become operative until twenty days after such service. Wellman v. Prost, 38 Hun. 389 ; Peeder v. Lochwood, 30 Misc. 531 ; 62 Supp. 713. Service of a copy of the order is essential to make the stay operative in any event, whether the time within which the costs must be paid are fixed by the order or not. Sire V. Shulert, 93 App. Div. 324; 87 Supp. 891. Entry of and appeal from order. — The stay does not apply to the entry of and appeal from the order in which the costs are awarded. Allen v. Bechet, 84 Supp. 1011. But a notice of appeal may be refused or returned for non- payment of costs awarded in a separate order. Cohu v. Hus- son, 6 Supp. 512. Proceedings while under stay irregular merely. — The pro- ceedings taken by a party while under a stay, because of non- payment of motion costs, are not void, but merely irregular and when brought to the attention of the court the party violating the stay will be dealt with as may be proper. Wes- sels V. Boettcher, 142 N. Y. 212. It has been held that a judgment of dismissal on default, taken by a party who was under a stay for nonpayment of motion costs, was not merely an irregularity and that the judg- ment should be set aside. Brown v. Orisswold, 23 Hun, COMMON FORMS. 323 Motions and Orders. 618. While this case has not been directly overruled, the doctrine that proceedings taken while a party is under a stay for nonpayment of motion costs are anything more than ir- regularities, must be considered no longer the law in New York. Wessels v. Boettoher, 142 JST. Y. 212. The stay is waived by proceeding with the action and ac- cepting a notice of trial, after the stay becomes operative, from the party in default. Eeeder v. Lockwood, 30 Misc. 531 ; 62 Supp. 713 ; Mattice v. Shelland, 76 App. Div. 236 ; 78 Supp. 537 ; Dout v. Brooklyn Heights R. Co., 84 App. Div. 618 ; 82 Supp. 996. And where an order was made permit- ting a party to serve an answer upon the payment of $10 costs and the answer was served before the ten days had ex- pired but the costs were not paid, it was held that a motion which had for its purpose the striking out of the answer, which motion was made several months later, should be denied for laches. Austin v. Witmer, 32 Misc. 388 ; 66 Supp. 721. It is also waived by accepting and retaining appeal papers on an appeal from the order, if such an appeal is stayed. Allen v. Becket, 85 Supp. 192. A preliminary objection that all proceedings are stayed by reason of the nonpayment of costs awarded on a former mo- tion is waived where such costs are paid and accepted on the day the motion is heard. Moore v. Moore, 44 App. Div. 253 ; 60"Supp. 653. If a notice of trial is returned because of nonpayment of motion costs the special term has no power to order that the service made be deemed sufficient, upon the party stayed sub- sequently paying the costs. Roberts v. Schaf, 76 App. Div. 433 ; 78 Supp. 778. What are motion costs within Code Civ. Pro. § 779. — Costs of an appeal to the Appellate Division affirming or reversing an order granting or refusing a new trial on the minutes. Cohen v. EruUwitch, 81 App. Div. 147; 80 Supp. 689. Costs and disbursements of an order ^vacating, on appeal, an order for the examination of a party before trial. Hunt v. Sullivan, 79 App. Div. 119 ; 79 Supp. 708. 324 Bradbury's Lansing's forms and practice. Motions and Orders. Costs upon an order denying a motion for a new trial made upon a case and exceptions. Molntyre v. German Savings Bh., 59 Hun, 536 ; 13 Supp. 674. Of an appeal to the general term from an order made at special term. Phipps v. Cartnan, 26 Ilun, 518 ; Cohn v. Mus- son, 17 Civ. Pro. R. 434. Of a reference on an interlocutory proceeding. Jones v. Easton, 11 Abb. N. C. 114. Municipal Court. — This section does not apply to the Mu- nicipal Court of the City of New York. Fixrber v. Flauman, 30 Misc. 627 ; 62 Supp. 784. A motion is properly denied where costs of a previous mo- tion remain unpaid. Albany B. c& I. Co. v. Alton, 84 Supp. 180. From the above case it would seem that a party has two remedies for failure of his opponent to pay costs of a former motion. He may make a preliminary objection to the subsequent motion being heard at all or he may ask for a de- nial of the subsequent motion because of nonpayment of the costs of the former. Renewal of motion. — Payment of costs of an unsuccessful motion should be required as a condition of allowing a re- newal of the motion. Wasserraan v. Benjwmin, 91 App. Div. 547 ; 86 Supp. 1022. 17. Reference to take deposition to use on motion. — Provision is made in the Code for taking the deposition of a witness to be used on a motion. Code Civ. Pro. § 885. The motion for the deposition must be founded on proof by affidavit that the applicant intends to make the motion, or that a notice of motion has been given which the applicant intends to oppose. The affidavit must specify the nature of the ac- tion, and must show that the affidavit or deposition is neces- sary thereon, and that such person has refused to make an affidavit to the facts which the applicant verily believes are within his knowledge. A notice of one day of the motion for the deposition must be given if the party against whom it is made has appeared in the action. The person to be examined Common forms. 325 Motions and Orders. should be sei'ved with a subpoena, and may be compelled to attend as upon a trial. And he may be cross-examined. The deposition must be taken by question and answer, and when completed delivered to the attorney for the party who procured the order unless the order provides for a different disposition thereof. Code Ch^.Pro. § 885. Where witness required to attend. — If a witness required to attend under an oi-der to take a deposition to be used on a mo- tion is a resident of the State, he can only be required to at- tend at a place in the county where he resides or has an office for the regular transaction of business in person. If a non- resident onlj'^ in the county where the subpoena is served, un- less for special reasons stated in the affidavit, the order other- wise directs. Code Civ. Pro. § 886. Older decisions annulled. — The Code has been amended sev- eral times apparently to overcome the effect of older decisions, and the practice is so specifically pointed out by the statute that little is left for judicial interpretation. In some few in- stances, however, the courts have amplified the language of the Code. Before summions served. — "Where the Code provides that the issuing of a summons constitutes the virtual commencement of an action for the purpose of granting a provisional remedy, the court has power to order the taking of the deposition of a wit- ness to be used in such an application. Allen v. Meyer, 73 N. Y. 1. The deposition of a party cannot be thus taken under this section. People v. Paton, 5 St. E. 316. The section (885) is limited by its terms to " a person not a party." Only a pa/rPy to the action cam. apply for an order for a depo- sition. Attorney General v. Cont. L. Ins. Co., 4 Civ. Pro. K. 214. Attachment. — A deposition may be thus taken to secure evi- dence upon which to base an attachment. Allen v. Meyer, 73 K Y. 1. The nonproduction of an affidavit, it seems, will not be ex- cused in some cases if it could have been secured under this section. National B^way BTc. v. Barker, 14 Supp. 529. 326 bradbxjey's Lansing's forms and practice. Motions and Orders. A suhpmna duces tecum cannot be issued under section 885. Wallace v. Baring, 2 App. Div. 510 ; 37 Supp. 1078. Nor examination of books and papers. Fish v. Chicago, R. I., etc., E. Co., 3 Abb. Pr. (IST. S.), 430. Affidavit of 'publication. — The proper method of compelling a publisher to furnish an aflfidavit of publication of summons in foreclosure is under section 885. Eberle v. Krebs, 50 App. Div. 450 ; 64 Supp. 246. A motion for a new trial on newly-discovered evidence is a proper foundation for the granting of a deposition to take the evidence of a witness. 0^ Connor v. McLaughlin, 80 App. Div. 305 ; 80 Supp. 741. Witness fees. — While the statute does not speak of witness fees, it requires a subpoena to be served on the witness, and that he be " compelled to attend as upon the trial," and doubt- less witness fees must be paid to him, although this point does not seem to have been passed upon by the court. 18. Reference of motion. — The court may properly deny an application for a reference to determine a question arising on a motion where there is not much doubt as to the disposi- tion which should be made of the question from the affidavits presented to the court. Bischoff v. Bischoff, 88 App. Div. 126 ; 85 Supp. 81. 19. Reference to hear and determine practice motion. — The court has no power to make an order of reference to hear and determine a practice motion. The only order which he may make is to direct a reference to take the testimony and report with his opinion. Matter of Lord, 81 Hun, 590 ; 30 Supp. 1117. (5) ORDERS. 1. An order is defined as being a written "direction of a court or judge, made, as prescribed in this act, in an action on special proceeding, .... unless contained in a judgment." Code Gi/o. Pro. § 767. COMMON FORMS. 327 Motions and Orders. 2. "An order must be in writing, unless otherwise specified in a particular case." Code Ow. Pro. % Y67. 3. An entry in the clerk's minutes of an order of reference in the usual form, to hear and determine an action, is a suf- ficient compliance with the requirements of the Code Civ. Pro. % 768 that an order must be in writing. Qeriiy v. Seeger <& Guernsey Co., 163 N. Y. 119. 4. An order signed by the clerk and not by the justice, which overrules a demurrer and directs judgment, and which order is duly entered, is a sufficient decision in writing, on a motion for a new trial, under Code Civ. Pro. % 1010. Oarrett V. Wood, 57 App. Div. 242 ; 68 Supp. 157. 5. An oral decision which is not put in the form of a written order is of no effect as an order. Smith v. Spaulding, 30 How. Pr. 339. 6. The difference between a judge's order and a court order is rather technical than substantial. In certain instances the statutes provide that specific relief can be granted by a judge's order, in others by a court order, and in still others by an order of the court or a judge or justice thereof. "Where the particular practice is pointed out in a statute it must be fol- lowed or the order may be vacated. In cases where the pro- cedure is not specifically pointed out in the statute the usual rule is that ex farte orders are made by a judge and orders on notice by the court. This rule, however, has many exceptions. Thus special pro- ceedings relating to the property of incompetents frequently result in orders which are made on petitions without notice to any one and final orders in such cases are invariably court orders, when not otherwise provided by statute. Such orders are in the nature of final judgments which is, perhaps, the rea- son why they should be court orders. In many instances also the Code and rules specifically provide for the granting of a court order exjparte. 328 Bradbury's Lansing's forms and practice. Motions and Orders. A court order always has a caption ^ indicating that it was made at a special trial or other term of the court, as the case may be. Its phraseology should also indicate that it was made by the court and not merely by a judge of the court. It is entered by the clerk by the direction of the presiding judge of the court where it was granted. This direction to the clerk is indicated by the word " Enter " at the bottom of the order, followed by the judge's initials or name. A judge's order has no caption, the phraseology should in- dicate that it is made b}^ a judge only, and should be signed by the full name and title of the judge granting it, as its au- thenticity frequently depends entirely upon such signature. 7 . Effect of caption on judge's order and vice versa. — Absence of a caption on a court order is not sufficient to cause the order to be considered merely as a judge's order, where from the matter contained therein, it is obvious that it was intended as for a court order. Lawson v. Sj)eer, 91 App. Div. 411 ; 86 Supp. 915. A judge's order is not vitiated because it contains a caption, for a caption may be treated in such a case as surplusage, and the body of the order may be looked into for the purpose of determining whether it was made by the court or by a judge. Matter of Mimson, 95 App. Div. 23 : 83 Supp, 509 ; Phinney V. Broschell, 19 Hun, 116 ; aff'd 80 N. Y. 544; Borthwick v. Howe, 27 Hun, 505. The caption of an order may by disregarded where it can be seen from the order itself and the papers upon which it was granted, that it was intended to be a judge's order. Al- Irech V. Canfield, 92 Hun, 240 ; 36 Supp. 940. If an order is signed with the full name of a judge, with no direction to enter it, and it is not entered, it is a judge's order merely and not a special term order, although it has a caption and, therefore, a certified copy thereof need not be delivered. iSee subdivision Captions in this chapter; also forms Nos. 213 and 214, with notes. COMMON rORMS. 329 Motions and Orders. Atlavtio & Pacific Telegraph Co. v. Baltimore i& Ohio R. Co., 46 Super. Ct. 377. 8. Default order; relief granted. — An order on default can grant only the relief which is specifically demanded. An- derson V. Johnson, 3 Super. Ct. 713 ; Rogers v. Toole, 11 Paige, 212. 9. Opening default order ; rehearing ; on what papers. — Where a default order is opened, it must be heard as to the party who took it on his original moving papers. Knowlton V. JBowrason, 8 Cowen, 135. 10. Default order ; appeal. — An appeal does not lie from the order recited to have been made on default. Matter of Peekamose Fishing Cluh, 5 App. Div. 283 ; 39 Supp. 124. 11. "Other and different relief." — Under a notice of mo- tion praying for such other and further relief as to the court may seem meet, the court is empowered in its discretion to grant other relief than that prayed for. McKesson v. Rus- sian Co., 27 Misc. 96 ; 57 Supp. 579 ; Meyers v. Rosenback, 7 Misc. 560. Under a prayer for general relief on a motion to set aside a referee's report, the court may order the case sent back to the referee to make a proper report. Schultatis v. Molneniy, 27 Abb. K C. 193 ; 13 Supp. 684. " Under a general prayer for relief upon a motion, every possible relief should not be granted, but it should be allied to what is asked for, and not entirely distinct therefrom." Boston National Bank v. Armour, 50 Hun, 176 ; 3 Supp. 22. If a party has mistaken the practice and moved for an order to which he was not entitled, it is discretionary with the court whether or not to grant the proper relief under the words in the notice "for such other and further relief, order," etc. Van Shyle v. Hyatt, 46 IST. Y. 259. Under a prayer for general relief, a party may usually have any relief which is consistent with the case made by the affi- davits. Ferguson v. Jones, 12 Wend. 241. Thus irregular 330 Bradbury's Lansing's forms and practice. Motions and Orders. proceedings may be ordered stricken out under a prayer for general relief in a motion to amend such proceedings. Boy- len V. McAvoy, 29 How. Pr. 278. 12. Affirmative relief to party moved against. — Affirma- tive relief should not be granted in favor of a party against whom a motion is made, upon matter appearing in his papers, vrhich the other parties have had not opportunity to answer. Garde v. Sheldon, 3 Barb. 232. 13. One order in several actions. — A single order may sometimes be entered applicable to a number of different suits. It has been so held of an order requiring the payment of money into court in five different actions, where such pro- cedure prevented the multiplication of costs. Whitman v. Haines, 4 Supp. 48 ; aff'd 119 IST. T. 639. See also Hunt v. Wallis, 6 Paige, 371. 14. Reciting wrong county. — An order entitled as being made in a county other than that for which the motion was noticed, is irregular merely, and may be corrected. Wright V. Bowne, 79 Hun, 385 ; 29 Supp. 1151. 15. Special in place of trial term caption. — An order made at trial term should not be set aside because the cap- tion reads special term. Smith v. Coe, 30 Super. Ct. 477. 16. Reciting papers on which order is granted. — A party is entitled to have recited in an order all of the papers which he or his adversary has used upon the motion from which the order results. Deutermann v. Pollock, 36 App. Div. 522 ; 55 Supp. 829 ; Farmers^ Nat. BTc. v. Underwood, 12 App. Div. 269 ; 42 Supp. 500 ; Rule 3, Gen. Rules of Prac. 17. Orders granted on petitions or. relating thereto shall - refer to such petitions by the names and descriptions of the petitioners, and the dates of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Rule 27, Gen. Rules of Prac. COMMON FORMS. 331 Motions and Orders. 18. "All pleadings and proceedings." — A recital in an order that the motion was made upon certain specific papers " and upon all the pleadings and proceedings in this action " is indefinite, in that it does not show what particular papers were used, and as it does not comply with Rule 3 of the Gen. Rules of Prac, and should be resettled by striking out such recital. SouthacTc v. SoutJiaoTc, 61 App. Div. 105 ; TO Supp. 334 ; Faxon v. Mason, 87 Hun, 139 ; 33 Supp. 802. 19. Voluminous and superfluous papers. — The objection that a paper offered on a motion was unnecessary and super- fluous and that it was introduced only for a special purpose and that it was Toluminous, and that the printing of it on ap- peal would be expensive, affords no ground for a motion to resettle an order so as not to recite such paper in the order made on the motion. Farmers' Nat. Bh. v. Underwood, 12 App. Div. 269 ; 42 Supp. 500. 20. Papers secretly submitted. — The rule that both par- ties have the right to a recital in the order to all papers used or read upon the motion does not apply to an affidavit which neither the court nor the opposing counsel was advised upon the argument was offered in opposition to the motion. Silo v. Zinde, 31 Misc. 264 ; 64 Supp. 55. 21. Costs on resettlement to recite papers. — Costs should be allowed in setting aside an order which has been entered without costs to the other party, and which fails to recite an aflidavit used on the motion. Brady v. Lovell, 29 Misc. 775 ; 61 Supp. 504. 22. Appeal from refusal to recite papers. — An appeal will He to the appellate division from an order denying a mo- tion to resettle a previous order, so as to contain a recital of all the papers used upon the motion, where it is admitted that such papers were used and are hot recited. Farmers' JSat. Bh. V. Underwood, 12 App. Div. 269 ; 42 Supp. 500. 332 Bradbury's Lansing's forms and PRACTICE. Motions and Orders. 23. Reciting oral stipulations. — "Where stipulations are made in open court, but which are not reduced to writing, they should be incorporated in full in the order, and the facts as to which the stipulation is made, should be recited, and not merely that the order is made on the stipulation of the par- ties in open court. Smith v. Grant, 11 Civ. Pro. R. (Browne) 354; 3 St. R. 255. 24. Waiver in order ; recital. — A waiver of a statutory provision should expressly appear in the recital of an order, or be evidenced by a stipulation. Newhall v. Appleton, 46 Super. Ct. 6. 25. Staying cause after noticed for trial. — No order, except in the first judicial district, served after the action shall have been noticed for trial, if served within ten days of the trial term, shall have the effect to stay the proceedings in the ac- tion, unless made at the term where such action is to be ti'ied, or by the judge who is appointed, or is to hold such trial term, or unless such stay is contained in an order to show cause re- turnable on the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the case on the calendar. Rule 37, Qen. Rules of Prac. 26. Rule 37 applies only to trial terms, and it was there- fore held that noticing a case for trial at special term, after an order to show cause, containing a stay, had been granted, on a motion to amend the complaint, constituted a contempt of court. Oakley v. Gohalete, 20 Misc. 206 ; 45 Supp. 782. 27. Irregular stay ; effect. — A stay contained in an order to show cause, although such order may be irregular, cannot be disregarded by the party upon whom it is served until the same is vacated by the court or a judge. Oakley v. Cokalete, 20 Misc. 206 ; 45 Supp. 782. 28. Settling order. — On the settlement of an order, a judge COMMON FORMS. 333 Motions and Orders. may modify or add to the decision announced by him. Post V. Cobb, 13 St. E. 565. 29. Effect of resettlement. — The resettlement of an order has the effect of vacating the original order. Matter of Peeka- mose Fishing Club, 5 App. Div. 283 ; 39 Supp. 121. 30. Resettlement on consent ; effect. — Where one party induces the other to consent to a resettlement in a specific rnanner, of an order already entered, such resettled order should be considered as entered pursuant to a stipulation and the court will not again resettle the order to conform to its original form. Zant v. Pasines, 18 Misc. 414. 31. Incorrect statement in order as being on consent; remedy. — Where an original order is entered by consent, and one of the parties moves to resettle the same and the order is resettled in a form which is opposed by one of the parties, but the order on its face recites that it was on consent, the proper practice is for the aggrieved party to move to vacate the order or resettle it, as an appeal therefrom would be unavailing, in- asmuch as the order appeared to be on consent. Bolles v. Cantor, 6 App. Div. 365 ; 39 Supp. 652. 32. Entering order. — It is the duty of the prevailing party on a motion to enter the order and if he fails to do so within twenty-four hours after the decision has been made, any party interested may have it drawn up and entered. Matter of Rhineheoh <& Conn. R. Co., 8 Hun, 34 ; aff'd 67 N. Y. 242. 33. New or daplicate order. — If a party fails to enter within twenty-four hours, an order which he has procured to be signed, the court may, on the application of the other party, and to protect his rights, sign another order and may thereafter vacate and set aside the order first signed. Losee v. Dolan, 74 Supp. 685., When any order is entered all the papers used or read on 334 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. the motion on either side shall be specified in the order and should be filed with the clerk unless already on file, or other- wise ordered by the court, or the order may be set aside as irregular, with costs. The clerk should not enter such order unless the papers are filed, except when otherwise specially di- rected by the court. Rule 3, Qen. Rules of Prac. 34. Failure to enter ; new motion. — The failure of the prevailing party to enter the order does not give the defeated party the right to raise the same question upon a separate motion, as the unsuccessful party can himself enter the order, if the prevailing party fails to do so. Peet v. Cowenhoven, 14 Abb. Pr. 56 ; Wheeler v. Falconer, 30 Super. Ct. 45. 35. Entering order in county other than that in which made. — If an order is made in a county other than that in which the action is triable, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise di- rect, a certified copy of the rough minutes, showing what papers were used or read, together with the aflBdavits and papers used or read upon such motion, with a note of the de- cision thereon, or the order directed to be entered, properly certified. It shall be the duty of the party to whom such papers are delivered, to cause the same to be filed, and the proper order entered in the proper court within ten days there- after, or the order may be set aside as irregular, with costs. Rule 3, Gen. Rules of Prac. 36. Failure of clerk to transcribe. — If an order is properly entered and filed by the clerk, it is not invalidated by the omis- sion of the clerk to transcribe it in the proper record. Vilas v. Page, 106 N. Y. 439. 37. Order entered in wrong district ; how corrected A motion to set aside an order irregularly made in a district other than that in which the action is pending, should be made in the district in which the action is pending, and not in the COMMON FORMS. 335 Motions and Orders. district in which the motion \vas originally made. Attrill v. Rochaway Beach Imp. Co., 25 Hun, 376. 38. Entering order as of term when submitted. — Although a judge decides a matter, after the adjournment of the term, the order must be entered as of the term when the matter was submitted. People v. Brooks, 40 How. Pr. 755. 39. Filing papers. — When any order is entered all the papers used or read on the motion, on either side, shall be specified in the order and shall be filed with the clerk unless already on file or otherwise ordered by the court, or the order may be set aside as irregular, with costs. A clerk shall not enter such order unless the papers are filed, except when otherwise spe- cially directed b^' the court. Bule 3, Gen. Rules of Prac. 40. An ex parte order of a judge, as a rule need not be en- tered, although, the papers upon which it is granted should be filed. Albrecht v. CanfieU, 92 Hun, 240 ; 36 Supp. 940. 41. Amending and entering nunc pro tunc. — A surrogate's order may be amended nunc fro tunc by inserting a recital that the evidence and exhibits which were before the referee, form a part of the hearing before the surrogate, on a motion to set aside the referee's report. Matter of Post, 14 Supp. 205. An order of reference which is in form to take evidence and report, but which was intended to be an order to hear and determine and is so treated by the parties, may be amended viunc pro tunc so as to be an order to hear and determine. Matter of May, 53 Hun, 127 ; 6 Supp. 356. An order overruling a demurrer may be amended nunc pro tunc so as to authorize the entry of an interlocutory judgment. XJ. S. Life Ins. Go. v. Jordan, 46 Hun, 201. An order of puhlioation may be amended nunc pro tunc so as to show that it is a judge's order instead of a court order. Coffin V. Lesster, 36 Hun, 347 ; aff'd 110 N. Y. 645. 336 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. Adjourned sjpeoial term. — An order may be amended nunc fro tv.ne to show that it was made at a regularly adjourned special term. Feojyle v. Central City Bk., 53 Barb. 412, or it may be entered nunc pro tunc. Id. An order upon consent cannot be amended nunc pro tunc as to an essential object, without the assent of both parties, but it may be corrected as to clerical errors. Zeitoh v. Cump- ston, 4 Paige,476 ; People v. Tarlell, 17 How. Pr. 120. 42. Retroactiye order. — An order cannot be made retroac- tive by virtue of another order subsequently made. Matter of Livingstone, 34 JST. Y. 555. 43. Special term amending order made at another special term. — One judge at special term has no power to amend an order made by another judge, so as to include matter which was not before the court on the first motion. Wingrove v. German Sa/v. Bk., 2 App. Div. 479 ; 37 Supp. 1 092. A judge at special term has no power on motion to modify a judgment rendered by another. JV. Y. Sec. d; Trust Co. v. Lipman, 83 Hun, 569 ; 32 Supp. 65. 44. Docketing order for payment of money as judgment. — An order or judgment directing the payment of money or affecting the title to property, if founded on petition where no complaint is filed, may, at the request of anj'^ party interested, be enrolled or docketed as other judgments. Rule 27, Gen. Rules of Prao. 45. Order fixing attorney's compensation. — An order made upon a motion to fix the compensation of an attorney should not direct the entry and taking of judgment for the amount found, as Rule 27 does not apply to such a proceeding. Meyer v. Allett, 20 App. Div. 390 ; 46 Supp. 822. 46. Entering judgment on order for payment of money It seems that while a final order may be entered and docketed COMMON FORMS. 337 Motions and Orders. as a judgment, if it provides for the payment of money, such, order cannot be the basis of a separate and independent judg- ment. Matter of Lexington Ave. No. 2. 30 App. Div. 609 ; 52 Supp. 342. 47. Getting rid of order. — An ex parte order may be va- cated or modified without notice by the judge who made it, or upon notice by such judge, or by the court. Code Civ. Pro. % 772. 48. Failure to disclose all facts — An eaj^arfe order may be vacated ex parte by the judge who made it on the ground that all the facts were not disclosed on the original application. Morehouse v. Yeager, 41 Super. Ct. 306 ; Wa/rd v. Sands, 10 Abb. N. C. 60. 49. The court may in its discretion determine whether it will set aside a default order on the ground that the court had no jurisdiction to make it, or will leave the party to set up the invalidity of the order when an attempt is made to en- force it. People ex rel. Brush v. Brown, 103 N. Y. 684. 50. Power of court to modify own order. — The inherent power of every court of record, unless expressly restrained by statute, to vacate on motion, its processes, order, or judgment, to prevent a perversion thereof, or to frustrate oppression is confirmed by Code Civ. Pro. § 772. Levy v. Loeb, 44 Super. Ct. 291 ; aff'd 75 N. Y. 609. 51. An order may l)e opened upon application to the court, and the motion upon which it was made, may be heard anew, if the court in its discretion thinks sufficient reason exists for doing so. Belmont v. Erie R. Co., 52 Barb. 637. 52. Moving to vacate and appealing.— A party moving to vacate an order from which he has appealed, is not required to withdraw his appeal as a condition that the court shall en- VoL. 1—22 338 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. tertain the motion to vacate. Belmont v. Erie E. Co., 62 Barb. 637. 53. Successful party moving to vacate. — An order may be vacated upon the application of the party in whose favor it is entered. Dietz v. Parish, 43 Super. Ot. 8Y. 54:. Accepting favor, bound by condition. — A party who accepts a favor granted in an order cannot be heard to complain of a condition made in the same order. Simmons v. Simmons, 32 Hun, 551. 55. Acting under irregular order An irregular order which is subsequent!}'- vacated ofifers no protection to parties acting therein. Farnsworth v. Western Union Tel. Co., 6 Supp. 735. 56. Foreign order — An order of a court of a foreign state in a divorce action, which was made by the court of such foreign state to carry a final decree into execution by means of a receivership and other equitable remedies, cannot be enforced by action in this state. Lynde v. Lynde, 162 ]^. Y. 405. 57. Res adjudicata. — An order overruling a subpoena and requiring a witness to attend and produce books is conclusive on appeal from a subsequent order that the subpoena was prop- erly issued and the witness must obey it. Matter of Romdall, 87 App. Div. 245 ; 84 Supp. 294. 58. Who may serve order. — The rules of court as to the service of process do not apply to the service of papers, such as motion papers and orders in actions and proceedings on a1> torne3's. There is nothing specified in the rules or the Code as to the age of the person making the service. Nor is there any statute or rule which prohibits a party from making such serv- ice. If the fact of service is questioned it may be proved by any common-law evidence the same as any other fact. COMMON FORMS. 339 Motions and Orders. 59. How service made. — A court order is usually served by delivering to the party or his attorney if one has appeared in the action, a true copy of the order with a notice of entrj'- indorsed thereon. Ordinarily a certified copy is only served where the party may be in contempt if he fails to obey the order. In all other cases an uncertified copy is sufficient. A judge's order is usually served by delivering a copy thereof to the party or his attorney, if one has appeared, and if the order has not been entered by exhibiting the signature of the judge on the original order. If a judge's order has been en- tered a notice of such entry should be indorsed on the copy served. 60. Exact copy. — Care should be taken in all instances to have the copy served exactly like the original, as a trifling de- fect in this respect may have the effect of failing to limit the time to appeal. 61. Serving judge's order; exhibition of signature, — In serving a judge's order, the signature of the judge on the orig- inal need not be exhibited, except for the purposes of con- tempt. Gross V. Clark, 1 Civ. Pro. K. IT ; aff'd on another point, 86 N. Y. 272; Whitman v. Johnson, 10 Misc. 730; 31 Supp. 805. 63. Serving resettled order. — If an order is settled ex parte and entered, and a copy served, but is afterwards reset- tled and modified by the judge who made it, a new copy of the resettled order must be served to limit the time to appeal therefrom. Bowman v. ^arle, 10 Super. Ct. 691. 63. Sheriff's certificate of service of order. — Proof of the service of an order cannot be made by a sheriff's certificate, as an order is pot technically the process of the court. Ufica City Bamk v. Bnel, 17 How. Pr. 498. 64. Premature notice of entry. — Notice of the entry of an 340 Bradbury's Lansing's forms and practice. Motions and Orders. order cannot be given until it has actually been entered by the clerk. Gallt v. Finch, 24 How. Pr. 193. 65. Irregular and void orders. — Orders which are entirely void for lack of jurisdiction or other reason may be disre- garded. Spencer v. Barber, 5 Hill, 568 ; Matter of N. Y. Lackawanna etc., B. Co., 126 N. Y. 632 ; Hunt v. Wallis, 6 Paige, 371. But an irregular order is not void and must be obeyed until set aside. Pinchney v. Hagerman, 4 Lans. 374 ; Davenport v. Sniffen, 1 Barb. 223 ; Harris v. Cla/rJe, 10 How. Pr. 415. And a party is not bound to treat as a nullity an order which is obtained in conflict with the rules of court. Osgood V. Joslin, 4 Paige, 195 ; but the party may move to vacate it. Gould v. Root, 4 Hill, 554. 66. Collateral attack of order. — Eecital of the facts neces- sary to give the court or a judge jurisdiction to make an order in an action or proceeding furnishes conclusive proof of the regularity of such order when questioned collaterally. Wright v. Nostrand, 94 N. T. 31 ; Agricultural Ins. Co., v. Barnard, 9Q N. Y. 525; Harrison v. Union Trust Co., 80 Hun, 463 ; 30 Supp. 443 ; Gebhard v. Gehhard, 25 Misc. 1 ; 54 Supp. 406. The remedy is by motion to the court where the order was made if the regularity of the order or the good faith of the parties is to be attacked. Harrison v. Union Trust Co., 80 Hun, 463 ; 30 Supp. 443. 67. County judge's order in an action in another court. — Many special provisions are found in the Code for the makino- of an order by a county judge in an action pending in the Supreme Court. Section 772 of the Code also provides that where an order in an action may be made by a judge of the court out of court and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court in any part of the State ; or, except to stay pro- ceedings after verdict, report or decision, by a justice of the Supreme Court, or by the county judge of the county where COMMON FORMS. 341 Motions and Orders. the action is triable, or in which the attorney for the applicant resides. A county judge within his county possesses, and upon proper application must exercise, the power conferred by law in gen- eral language, upon an officer authorized to perform the duties of a justice of the Supreme Court at chambers, or out of court. Code Civ. Pro. % 241. Except where it is otherwise specially prescribed by law an injunction order may be granted in a court where the action is brought or by a judge thereof, or by any county judge, and where it is granted by a judge, it may be enforced as the order of the court. Code Civ. Pro. § 606. A count}'' judge also possesses the same power and authority in a special proceeding, which can be lawfully instituted before him, out of court, which a justice of the Supreme Court posses- ses in a like special proceeding instituted before him in like manner. Code Civ. Pro. § 349. A county judge may also appoint a guardian ad litem. Code Civ. Pro. ^ 4:^2. Grant an order of arrest. i(/. §556. Grant an injunction order. Id. § 606. A warrant of attachment. Id. § 638. An order to show cause. Jd. § 780. An order to take a deposition within the State. 2d. § Y83. An order to take a deposition without the State. Id. § 889. An order to prevent waste by judgment debtor. Id. § 1442. To issue a writ of habeas corpus to bring up a person to testify. Id. § 2009. An order in supplementary proceedings. Id. § 2434. And may issue a writ of habeas corpus. Id. § 2017. Injunction. — A county judge has authority to grant an in- junction order. Code Civ. Pro. § 606 ; People v. Dwyer, 90 N. Y. 402; Aldinger v. Pi(iih, 57 Hun, 181; 10 Supp. 684. And it is deemed the mandate of the Supreme Court when is- sued in ari action pending therein. Id. A county judge has no power to grant an injunction under § 10 of the Agricultural Law, as such injunction is within tiie exceptions in Code Civ. Pro. § 606, and therefore § 241 does not apply. People v. Windholz, 68 App. Div. 552 ; 74 Supp. 241. 342 Bradbury's Lansing's forms and practice. Motions and Orders. The fact that an injunction restraining members of the Com- mon Council from overriding or disapproving the mayor's veto, in an action in the Supreme Court, is issued by a county judge, makes it none the less the mandate of the court. People v. Dwyer, 90 N. Y. 402. Temporal']) injunction in foreclosure. — In an action in the Su- preme Court to restrain foreclosure by advertisement, a county judge may grant an order requiring the defendant to show cause before him why a temporary injunction should not be granted, and restrain him in the meantime from selling the premises at the time specified in the advertisement. Babcock V. Clark, 23 Hun, 391. Custody of children. — A county judge has no jurisdiction to try and determine the question of the custody of children. People V. Parr, 49 Hun, 473 ; 2 Supp. 263 ; afif'd 121 N. Y. 679. Vacating supplementary proceedings. — A county judge of the county in which the attorney resides has jurisdiction to grant an order returnable at special term to show cause why an order in supplementary proceedings should not be vacated. Vandeburg v. Gaylord, 7 Week. Dig. 136. Habeas corpus. — An application for a writ of habeas corpus may be made to the county judge. People v. Corey, 46 Hun, 408. A special surrogate who is empowered by statute to perfordl the duties that can be performed by a county judge out of court, has power to issue an injunction order in an action in the Supreme Court. Aldinger v. Pugh, 57 Hun, 181 ; 10 Supp. 684, and also to grant an order of arrest. Seymour v. Mercer, 13 How. Pr. 564. " It is entirely clear that the legislature intended to confer upon these local officers, both special county judges and special surrogates, all the powers of the county judges which they could perform out of court or at chambers, as well as all other powers, both of county judge and of surrogate, in cuse of in^ ability or vacancy in the offices respectively." Seymour v. Mercer, 13 How. Pr. 564 ; quoted with approval in Aldinger V. Pugh, 57 Hun, 181 ; 10 Supp. 684. COMMON FORMS. 343 Motions and Orders. 68. Order hy Supreme Court judge in comity court action. — The statute provides that, " In an action or special proceed- ing in a county court, an order may be made without notice, or an order to stay proceedings may be made upon notice, by a justice of the Supreme Court, or by the county judge of the county where the attorney for the applicant resides, in a case where the county judge, in whose court the action or special proceeding is brought, may make the same, out of court ; and with like effect." Code Civ. Pro. § 354. Only a judge of the Supreme Court, and not the court at special term, has power to make an order, under § 354, in an action pending in the county court. Edwards v. Shreve, 83 App. DiY. 165 ; 82 Supp. 514. 69. Title when made by Supreme Court judge. — The order should be entitled in the county court although made by a Supreme Court judge. Hazard v. Wilson, 3 Abb. JST. C. 50. The same rule applies to orders made by a county judge in an action pending in the Supreme Court. FormlVo. 186. Notice of Motion. [Title.] Please take notice, that on the annexed affidavits of A. B., C. D., and E. F., sworn to respectiA^ely the day of , 19 — , and on the pleadings in this action, and on the affidavit of , sworn to the day of , 19 — ^ which was filed in the office of the Clerk of the County of , on the day of —. , 19 — {if any other papers a/re to 1)6 used on the m,otimi, specify them, hut do not use such expressions as " on all the proceedings litul herein "), a motion will be made at Special Term, Part I, of the Supreme Court, to be held in and for the County of New York, at the County Court House therein, on the day of , 19 — , at 10 : 30 o'clock in the forenoon, or as soon 344 Bradbury's Lansing's forms and practice. Motions and Orders. thereafter as counsel can be heard, for an order Qiere specifi- cally state the relief which is demanded, indicating briefly the ground therefor, and if irregularities are among the grounds upon which the demand for relief is hased, specify these irregu- larities clearly), and for such other, further and different re- lief as may be just, with the costs of this motion. Dated day of , 19 — . Yours, etc., {Signature and office address of the attorney for the moving party.) To {Name and address of the attorney for the adverse party.) Form No. 187. Notice of Motion, another Form. (Code Civ. Pro. § 780.) [Title.] Sir — Take notice, that upon the pleadings and proceed- ings in this action, and upon the affidavits and papers, with copies of which you are herewith served, a motion will be made at a Term of the Court, to be held at , on the day of , 19 — , at the open- ing of court, or as soon thereafter as counsel can be heard {or before Hon. A. O., Judge or Justice of the Court, at , on the day of , 19 — , at o'clock in the noon), for an order {specifying relief to ie applied for) on the ground that {specifying irregulari- ties, if any, are the foundation of the motion), or for such other and further relief as to the court {or to said Judge) may seem just and proper (and for costs of this motion). Dated , 19—. E. F., Attorney for . J (Office address.) To G. H., Esq., Attorney for . COMMON FORMS. 345 Motions and Orders. Form No. 188. Notice of Motion for Permission to Serve Additional Affidavits and to Enlarge Relief Supplementing Motion Already Made.' [Title.] Please take notice, that on the motion papers already served on you, with a notice of motion dated the day of , 19 — , returnable before Special Term, Part I, of the New York Supreme Court, at the County Court House in New York County on the day of , 19 — , and on the additional affidavits of sworn to the day of , 19 — {and specif y any otiier jpapers which are deemed necessary) an application will be made on the return day of said motion for permission to submit the affidavits above speci- fied, copies of which are herewith served upon you, as part of the original moving papers on said motion, and also that the relief demanded on said motion shall be enlarged so as to de- mand an order {or state the new relief detnanded, and also the grounds therefor, and any irregularities not specified in the original moving papers). {Add signature, etc., as inform Wo. 186.) Form ]?fo. 189. Notice to Bring On Motion After Indefinite Adjournment. [Title.] Please take notice, that on the annexed affidavit of 1 It is somewhat doubtful whether a motion to be permitted to file addi- tional affidavits and to enlarge the relief to be granted on the original motion, can properly be served less than eight, or five, days, as the case may be, before the return day of the original motion, and where it is deemed necessary to serve additional papers, the better policy would be, if possible, to secure an adjournment of the original motion for the purpose of serving such additional papers. See Zimmer v. Matterson, 15 Supp. 607. Where a hearing is adjourned the party moving cannot meantime serve an affidavit to be read in support of the motion, except by leave of the court obtained because of new facts discovered since the motion was made. Northrup v. Village of Sidney, 97 App. Div. 271; 90 Supp. 23. 346 Bradbury's Lansing's forms and practice. Motions and Orders. -, verified the day of , 19 — , and on the notice of motion herein dated the day of , 19 — , originally returnable before , at , on the day of , 19^, and on all the papers served with said notice of motion, the said original motion will be brought on for hearing at Special Term, Part I, of the Su- preme Court, to be held in and for the County of New York at the County House therein, on the day of ■■ 19 — , at 10 : 30 o'clock in the forenoon, or as soon thereiifter as counsel can be heard, for the relief demanded in such orig- inal papers and for such other or different relief as may be just. Dated , 19—. {/Signature, etc., of attorneys as in Form Wo. 186.) Form No. 190. Special Appearance Clause in Notice of Motion. That the defendant appears in this action for the purpose of this motion only, and for no other purpose whatsoever. ( Underneath the signature of the attorney should ie the state- ment, " for the purpose of this motion only.") Form No. 191. Affidavit in Support of Motion. [Title.] CotTNTT OF , SS. : A. B., being duly sworn, deposes and says that he resides at , and is the plaintiff {or otherwise describe the affi- ant, such as agent or attorney for the plaintiff, or managing clerk in the office of the attorney fur the plaintiff) in the above- entitled action. COMMON FORMS. 347 Motions and Orders. II. {Allegation as to,present condition of action on calendar, etc., under Rule 37, Gen. Rules of Prac!) That said action is (not) at issue and has not yet been tried (or has been once tried), which trial resulted in a Judgment being rendered in favor of the , and upon appeal to the Appellate Division, First Department, such judgment was reversed and a new trial was ordered, and such new trial has not been had. The next Special (Trial) Term at which said action is triable is appointed to be held at , beginning the day of , 19—. III. That {Sere set forth any matter relevant to the motiori). lY. {Allegation to secure extension of time to answer or de- mur under Rule 24, Gen. Rules of Prac.) That an affida- vit of merits herein, sworn to the day of , 19 — , was filed in the office of the clerk of the County of , on the day of ■■ 19 — , (a copy of which is hereunto annexed) (w insert an affidavit of merits, as to form of which see forms JVos. 176 and 177). The cause of action stated in said complaint is as foUows; {State briefy the cause of action) and the relief demanded is as follows; . No extensions ' of time have been granted herein to answer or demur, by stipulation or order, except . V. (^Specifying irregularity.) That the warrant of attach- ment herein failed to state the ground on which it was granted (or, the ground upon which said warrant of attachment was granted was stated therein in the alternative form ; or, several inconsistent grounds are stated in said warrant of attach- ment as being the grounds upon which the same was granted). Or, That the plaintiff (or defendant) was under a stay in this action when said order was made, for failure to pay motion costs, granted by an order entered in the office of the clerk of the County of on the day of 19 — . Or, The damages alleged to have been suffered by the plain- 1 "When the time to serve any pleading has been extended by stipulation or order for twenty days, no further time shall be granted by order, except upon two days' notice to the adverse party of the application for such order." Rule 2A, Gen. Rules of Prac. 348 Bradbury's Lansing's forms and practice. Motions and Orders. tiff are unliquidated and the papers upon which said attach- ment was granted fail to show facts from which the court can determine what, if any, damages have been suffered by the plaintiff. Or, That the papers on which said order of arrest (or war- rant of attachment) refer to papers and documents and the contents thereof, but copies of such documents are not at- tached to said papers. Or, The allegations in said affidavits on which said order {or provisional remedy, specifying it hy name) was granted are made on information and behef, but the sources of the affiant's knowledge or the ground of his belief are not stated in said affidavit. Or any other irregularity which may he the foundation of the motion. VI. {Application for order to show cause. Rule 37, Ge7i. Mules of Prac.) Said action is at issue but has not yet been placed on the calendar for trial [or is on the calendar of this court and will probably be reached for trial at a trial (special) term appointed to be held on , 19 — \ and the next trial (special) term at which this case is triable is appointed to be held at beginning 19 — . Deponent asks for an order to show cause, returnable in less than eight days, for the reason that the defendant's goods have actually been seized by the sheriff under the attachment herein and an}'^ delay in making this motion will seriously injure the de- fendant's rights and interfere with his business. Or, The defendant (plaintiff) is under an injunction herein and his business is and will remain practically at a standstill while such injunction continues in force. Or, A judgment has been entered herein and a levy on de- fendant's goods may be made by the sheriff. Or, This case is on the day calendar and set down for trial on the day of , 19 — , and if notice of eight (five) da^'s should be given this motion could not be brought on for argument before the trial of the action, in which case the motion would be of no avail. COMMON FORMS. 349 Motions and Orders. YII. {Previous application^ No previous application for such an order has been made. Or, Such an order as is here prayed for was granted by Mr. Justice on , 19 — , but was subsequently vacated for the reason {giving it) with leave to renew (or leave was subsequently granted by Mr. Justice on , 19 — , to renew said motion on additional papers). A. B. Sworn to, etc. Form IVo. 193. Affidavits to Procure the Deposition of a Witness, to be Used on a Motion for a New Trial,' (Code Civ. Pro. §885.) [Title.] State of New York, \ . County of j P. D. M., being duly sworn, says : I. I am the defendant in this action which is being brought against me individually -and as executrix to enforce an al- leged trust in property No. Street, in the Borough of , upon the allegation of the plaintiff that the said property in 18 — belonged to J. M., the decedent's father ; 1 The three affidavits (forms Nos. 192, 193 and 194), being the affidavits of the party, the attorney and the person who requested the proposed witness to sign the affidavit, are substantially taken from O'Connor v. McLaughlin, 80 App. Div. 305; 80 Supp. 741. There was also submitted with the above affidavits the proposed affidavit of the witness, the form of which would, of course, be of no practical value for general use. The affidavit of the attorney might be criticised as being largely on information and belief, without disclosing the sources of the information and the ground of the belief, but objection does not seem to have been made on that ground. 350 bhadbury's Lansing's forms and practice. Motions and Orders. that the decedent bought the same in foreclosure, and took title thereto upon an agreement or trust that he should hold the same for the benefit of G. M., a daughter of J. M., who has been mentally incompetent from birth. II. Upon the trial of this action L. C. and M. L. testified that they had heard numerous declarations by the decedent to the effect that he held the said house in trust for G. M. These two were the only witnesses who testified to such dec- larations. L. C. is the husband of the plaintiff, and G. M. has lived in his family for many years. Mr. L. C. also tes- tified that he heard the decedent, prior to the purchase by him of the said house, say that the sale was going to take place the next week and that the old man (meaning J. M.) was going to furnish him with money, and that he was going to buy it in trust for his sister G. No other testimony of this declaration was given. III. The defendant could not produce any witnesses to deny or disprove these alleged declarations by her decedent. IV. Mr Justice , before whom this cause was tried on , made his decision in favor of the plaintiff, and upon such decision and on the day last named interlocutory judgment was entered among other things decreeing that the plaintiff recover from myself $ with interest thereon from the day of , 19 — as the value of the said house, and that a reference be had to state an account of the rents and profits of the said house since the — day of . Y. About , I was for the first time informed that the plaintiff had entered into an agreement with M. L. C, that in the event of a recovery by the plaintiff in this action, she, the plaintiff, would pay to the said M. L. C, a portion of such recovery equal to the share to which the said M. L. C. would be entitled in the event of a recovery in behalf of all the children of J. M., and that the said M. L. C. had been in- duced by the plaintiff to forego any assertion on her part of any interest in the said house by means of the plaintiff's prom- ise aforesaid. At the same time I was for the first time in- COMMON rOEMS. 351 Motions and Orders. formed that the plaintiff had begun this action, apparently in behalf of G. M., but actually for the beneiit of all the chil- dren of J. M., that they should receive some portion of her possible recovery as a price for remaining silent with respect to their claims concerning the said house, and that the reason for such compact was that there was a better chance of re- covery in behalf of G. M. than in behalf of all of J. M.'s children because of her mental incompetency since birth.. VI. Immediately upon receiving this information, I in- structed my counsel to inquire as to its truth and reliability, and at aU times since receiving such information, I have, through my said counsel and otherwise, made every effort of which I was capable, to ascertain, and present, in the form of proof, the facts suggested by such information. YII. I am advised by my said counsel and intend to make a motion in this action to vacate the judgment herein upon the ground that the same has been obtained by fraud, con- spiracy and imposition upon the court, and for a new trial upon the ground of newly discovered evidence. VIII. The newly discovered evidence upon which in part I intend to make the said motion is partially set forth in this affidavit and consists among other things of proof that this action was brought in behalf of G. M., because the plaintiff believed that a recovery could not be had by all the children of J. M., deceased, and could be had if the action were brought in the name of an incompetent, and that M. L. while testify- ing to the declarations of the decedent, to the effect that he held the property in trust for G. M. alone, was so interested in the event that her testimony should be discredited and re- jected, and that L. C. gave his testimony upon the said trial in pursuance of conspiracy and for the purpose of imposing upon the court, and was so interested in the event, both in his own behalf and in that of his wife, that his testimony should be discredited and rejected. IX. Upon such motion the affidavit of M. L. is unnecessary, as I am advised and believe. I am informed and believe that she was going to receive a share of plaintiff's recovery in this 352 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. action and tbat she has said she w&s going to receive $4,000 therefrom, that the plaintiff and her husband has promised her a part of the said recovery and that she has said tbat she •was afraid that now the case was won she would not receive anything. X. I am unable to secure the affidavits of persons to whom M. L. has said the things lastly hereinbefore detailed, or any of them, for the reason that they are so close in interest with her, that they would refuse to make affidavit of the facts if requested. XI. The matters intended to be proved by the affidavit or deposition of the said M. L. are hereinbefore set forth, and are briefly that she and the plaintiff, before the trial of this case, have agreed that this action should be prosecuted nomi- nally in behalf of G-. M., but actually for the benefit in part of the said M. L., and that the said M. L. has, at the time of giving her testimony and before and since, expected and un- derstood that she was to receive a portion of any recovery herein that the plaintiff might make. All of the said matters, as I verily believe, are within the personal knowledge of the said M. L., and the annexed proposed affidavit drawn for veri- fication by her correctly sets forth the facts which are within her personal knowledge. The said M. L. resides at No. ■ Street, in the Borough of , in the City of . XII. The children of J. M. now living are , the plaintiff, M. L., M. L. C. and G. M. XIII. No previous application for an order directing the taking of the deposition of the said M. L. has been made in this action. P. D. M. Sworn to before me, etc. COMMON FORMS. 353 Motions and Orders. Form No. 193. Affidavit of Attorney to Procure Deposition of Witness. (Code Civ. Pro. §885.) [Title.] State of New Yoek, cottntt of [ SS. H. T. K., being duly sworn, says : I. I am one of the defendant's attorneys in this action and have been entirely familiar with its conduct since the com- mencement thereof. II. On or about the day of , I was in- formed that M. L. C. had said that the plaintiff in this action was going to pay to her a portion of any recovery which might be made by the plaintiff herein. III. Before the day last named, I had no intimation of any kind whatever as to any agreement by the plaintiff to pay any portion of such recovery to any person whatever, or as to any compact that this case should be brought in behalf of G. M., but actually for the benefit of herself and any other person or persons, or as to any agreement that the children of J. M. should refrain from asserting any supposed claim by them with respect to the property mentioned in the complaint or as to the existence of any of the matters set forth in the affidavit of the defendant which are therein referred to as newly dis- covered evidence. IV. Prior to 1 had no means known to me of ascer- taining the matters set forth in the preceding paragraph, and both before and after the trial of this action used my utmost endeavors to ascertain any facts which might be material and useful to the defendant in the defense of this action. I know of no opportunity or method by which I could have earlier ascertained the facts which the defendant now desires to have an opportunity to prove. V. I have advised the defendant that it is proper and neo- YoL 1 —23 354 BBADBURx's Lansing's forms and practice. Motions and Orders. essary for her to make the motion described in her said aflB- davit, and she has resolved and does now intend to make the same. I have also advised her that it is proper and necessary for her to have the afB davit or deposition of the said M. L. to use upon such motion, and she has resolved and does now in- tend to obtain such deposition and to use the same upon the said motion. VI. I fully expect that the said M. L. will, if required to make such deposition, make oath to the existence of an agree- ment between her and the plaintiff, that this action should be prosecuted apparently in the name of G. M., but actually for the benefit in part of the said M. L., and that she will also mate oath that she has, in pursuance of such agreement, re- frained from asserting a claim in her own behalf to the house in question. YII. The grounds of these expectations are inquiries and investigations which I have prosecuted by the aid of others, interviews which I have had with several persons and other information which I deem it my duty not to disclose. H. T. K. Sworn to before me, etc. Form No. 194. Affidavit as to Refusal of Witness to Make Affidavit. (Code Civ. Pro. §885.) [Title] State of New Yoek, | , County Of j F. M. T., being duly sworn, says : I. I am an attorney and counselor at law in the office of K. & O., the attorneys for the defendant in the above-entitled action. COMMON FORMS. 355 Motions and Orders. II. On the day of , I had an interview with Mrs. M. L., at her residence No. Street, in the Borough of , City of . I read the proposed affidavit annexed hereto marked " A " to her, and asked her if she would verify the same, stating that I was a notary public and could take her affidavit. She replied that she would not. I asked her if there was anything wrong with the affidavit, and she said, " It is all wrong. I never had any such conver- sations with A. O. or any one else in her presence." I then asked her if she would make an affidavit which stated correctly the facts as to any conversation that she may have had with A. O. or with any one else in her presence and she repHed that she would not ; that she would have to see her lawyer. F. M. T. Sworn to before me this, etc. Form No. 195. Order to take the Deposition of a Witness to be used on a Motion. (Code Civ. Pro. § 885.) {Ths order may he a judge's order or a cov/rt order. Y [Title.] It appearing by the affidavit of A. B., the plaintiff herein (or defendant), sworn to the day of ■ — , that he intends to make a motion in this action for {here state relief) in the Court [or that notice of a motion on the part of the herein has been served returnable before the Court, on the day of for {here state relief demanded) which he intends to oppose] and that it is necessary for him to have the affidavit (or deposition) of C. D., who resides at , to use upon said motion, and that said C. D. has refused to make an affidavit of facts, Avhich the said applicant verily believes to be within his knowledge, 1 See subdivision captions in this chapter. 356 Bradbury's lansing's forms and practice. Motions and Orders. and due notice ^ of motion for such order having been given. Now on reading and flhng the notice of motion, dated the day of , with due proof of service thereof, together with affidavits of A. B. and E. F., sworn to the day of , in favor of said motion, and the affidavit of G. H. sworn to the day of , in opposition thereto, and after hearing I. J., attornej'^ for the plaintiff (or de- fendant), in favor of said motion and K. L., attorney for the in opposition thereto, on motion of I. J., attorney for the plaintiff (or defendant), it is hereby Oedeeed, that C. D., of Street in the City ^ County State of New York, appear and attend be- fore Esq., who is hereby appointed referee to take the deposition of said C. D., at the office of said referee No. — Street in the City of ■ , on the day of 19 — at o'clock in the noon, or at such time as the referee shall name, and make his deposition, and testify and make true answers to all such questions as may be put to him concerning {here concisely, but coinprehensively indicate the subject of the examination) and that a subpoena ^ issue to said C. D. to compel his attendance as aforesaid. {Signature oj^ Judge and date if a judges order.) ( Word " Enter" with vnitals of judge if a court order ^ 1 If the application is made by the defendant it is necessary in all cases to give a notice of motion of at least one day, and if made by the plaintiff a like notice is required if the defendant has appeared in the action. Code Civ. Pro. § 885. The cases holding that the order might be granted either with or without notice were under an old statute. If the motion is made in support of a provisional remedy, such as an attachment, it may be made after the summons is issued, but before service, in which case it is obvious that no notice of the application is given. See Alien v. Meyer, 73 N. Y. 1. 2 Upon the place of residence of the witness depends the question of where he can be compelled to appear to testify. If a resident of the State he can only be required to appear at some place in the county where he resides or where he has an office for the regular transaction of business in person. If a nonresident only in the county wherein the subpcena is served, "unless for special reasons, stated in the affidavit, the order otherwise directs." Code Civ. Pro. § 886. 3 A subpoena as upon a trial should be served and witness's fees paid. COMMON I-ORMS. 357 Motions and Orders. Form No. 196. Sul)p(Biia to Witness to Make Deposition for Use on a Iffiotiou. (Code Civ. Pro. § 885.) The People op the State of New Toek : To A. B., Greeting : We command you, That all business and excuses being laid aside, you and each of you appear and attend before C. D., Esq., Subpoena to the Eeferee appointed by Hon. E. F., a appear and testify, judge of the court, at the office of said referee JSTo. Street, New York City, on the day of , 19 — , at o'clock, in the noon, to make an afBdavit or deposition to be used upon a motion upon behalf of the plaintiff (defendant) in a certain action now pending in the Supreme Court between G. H., plaintiff, and I. K., defendant, and for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit fifty dollars in addition thereto. Witness, Hon. (name of any justice of the court) Justice of the Supreme Court at the Court House in New York County, the day of one thousand nine hun- dred and . {Signature and address {Signature of clerk.) ' of attorney.) See Code Civ. Pro. § 885. Probably the safe way would be to have the subpoena signed by the clerk, although this does not appear to be abso- lutely essential. 1 Probably a subpoena signed by the attorney would be sufficient under the wording of Code Civ. Pro. § 886. 358 Sradbury's Lansing's forms axd Practice. Motions and Orders. Form No. 197. Notice of Hearing Before Referee to Take Deposition of Witness When Time is not Fixed in the Order.' (Code Civ. Pro. §885.) [Title of action.] SiE : Please to take notice, That the deposition of A. B. will be taken before 0. D., Esq., the Eeferee appointed by this Court (or by Hon. E. F., a judge of this court), in the above-entitled action, at his OiBce, Number — , Street in the City of on the day of 19 — , at o'clock in the noon of that day. Dated the day of 19 — . Yours, etc., To Esq., Attorney for . Attorney for . Form No. 198. Report of Referee Appointed to Take Deposition to be Used on a Motion. (Code Civ. Pro. § 885.) [Title.] To THE Hon. Supreme Cotjet, New York County : I., C. D., the referee appointed by an order made in this ac- 1 If the order is secured on behalf of the defendant or on behalf of the plaintiff after the defendant has appeared in the action the other party is entitled to notice of aU the proceedings, as he may cross-examine the vi'it- ness. Therefore if the order does not fix the time for the hearing, or if for any reason it is not held at the time specified in the order jt will, of course be necessary to give the opposing party notice of the hearing. COMMON FORMS. 359 Motions and Orders. tion by Hon. , one of the Judges of this court, on the day of , 19 — , (or, made by this court and duly entered in the office of the clerk of the County of on the day of , 19 — ) at the instance of the plaintiff (defendant) pursuant to section 885 of the Code of Civil Procedure, to take the deposition of A. B., do hereby re- port as follows : I first took oath as referee, which said oath is hereto annexed and made a part of this report. The hearing was duly brought on before me at my office No. — , street in the City of New York on the -day of 19 — , on which day there appeared L. M., Esq., attorney for the plaintiff, and N. O., Esq., attorney for the defendant, and A. B., the witness whose deposition I was ordered to take. The said A. B. was first duly sworn by me and then testified as appears by a typewritten transcript of his direct examina- tion and cross-examination, hereto annexed (or submitted and identified by my signature). Dated, 19—. {Signature of Eeferee.) {Annex testimony taken hy question and answer^ and Referees oath.) Form No. 199. Order to show Cause (General Form). Namie of court, or if court order, insert caption "At Special Term, etc." [Title.] On reading {and filing, if the order is a court order) the affl- iThe testimony must be taken by question and answer. Code Civ. Pro., §885. 360 SRAdBURy's LANSINQ'S fORMS AND PRACTICE. Motions and Orders. davit sworn to the day of 19 — {^specify any other papers relied ort) and on motion of attorney for plaintiff (defendant). Oedeked that the plaintiff (defendant) herein show cause at Special Term, Part I, of the New York Supreme Court, to be held in and for the County of New York, at the County Court House therein on the day of 19 — at 10 : 30 o'clock in the forenoon or as soon thereafter as counsel can be heard, why an order should not be made {here state relief sought) on the ground {specify the grounds of the motion, setting forth particularly any irregularity which is the foundation of the motion as to which see notice of motion Form, No. 191 anti) and why the plaintiff (defendant) should not have such other, further and different relief as may be just, with the costs of this motion. Sufficient reason appearing by the moving papers why this motion should be brought on in less than eight (five)' days by reason of the fact {here state Jyriefy the reason for granting an order to show cause) it is further Oedeeed that service of this order on the attorney for the plaintiff (defendant) on or before the day of 19 — shall be deemed sufficient. {If a judge's order, add the date with the signature and title of the judge. If a court order, add the word '■' Enter," to he followed hy the initials and title of the judge.) 1 See Rule 37, Gen. Rules of Prac, as am'd 1905. This rule now provides that where the attorneys for both parties reside or have their ofBces in the same city or village, an application for an order to show cause must specify the necessity for bringing the motion on in less than five days, if the order to show cause is granted merely for the purpose of shortening the time. COMMON FORMS. 361 Motions and Orders. Form No. 300. Order to Show Cause, Another Form. (Code Civ. Pro. § 780.) {Caption of court order, when tnade lyy court) [Title of cause.] Upon the annexed affidavits and papers, and upon, etc., let the defendant (or plaintiff) show cause, at a Term of the — Court, to be held at on the day of , 19 — , at the opening of the court, or as soon thereafter as counsel can be heard (or before Hon. A. O., judge of the Court, at , on the day of , 19 — , at o'clock in the noon), why an order should not be granted {state relief to ie applied for) with costs of motion. And it is further ordered, that copies of this order, and of said affidavits and papers annexed hereto, be served upon I. J., the (attorney for the) , personally, or through the post office,^ by depositing the said copies properly inclosed in a post-paid wrapper, and directed to the said I. J., at 1 Ordinarily if motion papers are served by mail the service must be made double the time before the return day that would be required if served personally, but under the power of the court to shorten the time for a notice of motion by order to show cause there seems to be no reason why the time to serve by mail cannot be shortened also if sufficient reason is given there- for. However, this should be done by an order to show cause in which the reason for shortening the time is stated, not by an order merely that a notice of motion may be served returnable in less than sixteen days. Vo,n Arsdale V. King 87 Hun, 617; 33 Supp. 858. Although such an order is merely irregular and not void. Id. And when the time is shortened the require- ments of Buk 37, Gen. Rules of Prac, and Code Civ. Pro. § 780, should be observed carefully or the order to show cause may be dismissed. Schiller V. Weinstein, 45 Misc. 591; 91 Supp. 76; Stryker v. Churchill, 39 Misc. 578; 80 Supp. 588; Proctor v. Soulier, 82 Hun, 353; 31 Supp. 472; Matter of Lyman, 60 Supp. 76. 362 bradbuey's Lansing's forms and practice. Motions and Orders. on or before the day 'of , 19 — , in the post oflSce at . Dated , 19 — (when made by judge). A. O., Judge {or Justice) of the Court {when made iy Judge). Form No. 301. Recital in an Order to Show Cause Allowing Further Papers to be Served before Hearing motion. And it appearing by the affidavit of sworn to the day of 19 — , that the party making this motion is unable to secure copies of in time to serve them with these motion papers, it is further Oedeeed that said moving party may have until the ■ — day of 19 — , in which to serve on the attorney for the plaintiff (defendant), copies of such papers. {Or, add the following after the recital of the papers for which the order is granted) : On such other and further atS- davits as the moving party herein shall serve on the attorney for the plaintiff (defendant) on or before the day of 19 — at o'clock in the noon. Form No. 302. Counter Motion. [Title.] Please take notice that upon the affidavits and motion papers heretofore served on the counsel for the plaintiff (de- 1 See note to form No. 199 and amendment of Rule 37, Gen. Rules of Prac., in 1905, relating to orders to show cause returnable in less than five days. COMMOiST FORMS. 363 Motions and Orders. fendant) by you, which motion is for an order requiring the plaintiff (defendant) to , which motion is returnable the day of 19 — , at a Special Term of the New York Supreme Court, to be held in and for the County of to be held in the Court House in the said County and on the complaint and answer already served in this ac- tion, and the annexed aiiidaYit of sworn to the day of 19 — , a counter motion will be made upon the hearing of the motion hereinbefore specified that if the injunction therein prayed for shall be granted, that a re- ceiver of the partnership property be appointed, and for such other, further and different relief as may be just. Dated, — '■ . {Signature and address as in form No. 186.) Form No. 303. Recital in Notice of Motion to Strike Enumerated Motion from the Calendar, for Failure to Serve Papers, For an order striking the motion hereinbefore made for {specify relief), noticed for argument by you for the day of 19 — , be stricken from the calendar and that judgment be rendered against you, on the ground that you have failed to serve upon me the papers required to be fur- nished by the rules of the court, and for such other and fur- ther relief as may be just, with the costs of this motion. Dated, . {Signature and address as inform No. 186.) 364 Bradbury's Lansing's forms aNd ipRAc*icE. Motions and Orders. Form No. 304. Order of Judge Transferring a Motion Returnable Before Himself to Another Judge- [Title.] Owing to the inability of Hon. A. B., Justice of this Court, before whom a motion in the above-entitled action is return- able on the day of 19 — , to hear the same by reason of the fact that he will be absent from the place where said motion is returnable, it is hereby Oedeeed that the same be transferred to and heard by lion. , a justice of this Court, at on the day of 19--. Dated . {Signature qf judge hefore whom the motion was originally noticed) Form No. 305. Stipulation Transferring Motion Indorsed on Papers. By reason of the inability of Mr. Justice before whom the within motion was made returnable, to hear the same, it is hereby stipulated that the said motion be transferred to and heard before Hon. at on the day of . Dated, etc., {Signatures of attorneys for all jpa/rties) COMMON FORMS. 365 Motions and Orders. Form No. 306. Recital in Notice of motion for Rehearing. That the decision on the motion heard and determined at Special Term, Part I., of this Court, on the day of 19 — may be reopened and said motion be reargued, upon the same papers, on the ground that a question decisive of the case, and duly submitted by counsel was overlooked (here specify the question referred to) or that the decision of the motion is in conflict with an express statute {which should he specified here) or with a controlling decision to which attention was not called by counsel for the plaintiff (defendant). Form No. 307. Recital in Motion to Renew. For leave to renew a motion heretofore made in this action, which resulted in an order filed and entered in the office of the Clerk of the County of on the day of , which denied a motion for leave to issue an execu- tion in this action (w such other order as was made on the former m,otion) on the ground that new facts have arisen and been discovered since the previous motion was made, which said facts are set forth in the affidavit sworn to on the day of and are briefly as follows : Form No. 308. Affidavit on Motion to Correct Findings. [Title.] State of New Toek, | County of > ss. : A. B., being duly sworn, deposes and says that he is the at- 366 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. torney for the plaintifif (defendant) herein ; that among the requests to find, submitted by the defendant (plaintiff) herein, the said defendant proposed as a second finding " as to matters of law," the following : " II. That on the day of 19—, C. D. was the owner of the property set forth in the schedules annexed to the complaint herein, free of all incumbrances, except the conditional bills of sale of the defendant E. F." That in pass- ing upon said request to find, Mr. Justice G. H. has marked in the margin of the paper " Found, G. H., J." Deponent be- lieves that thus marking this request to find was an inadvert- ence on the part of Mr. Justice G. H. for the reason that it is inconsistent with the other findings in the case. Deponent believes that Mr. Justice G. H. got the impression that this finding related to a matter prior to the execution of the chattel mortgage in suit, as at that time the property mentioned in said finding was the property of E. F., but of course it could not be such property free of encumbrance after the chattel mortgage was made. Deponent therefore requests that the findings be resettled, and corrected in accordance with the facts. Sworn to before me, this A. B. day of , 19 — . Form No. 309. Motion to Correct and Resettle Findings. [Title.] Please take notice that on the annexed affidavit of A. B. and on the findings made by Mr. Justice G. H. and on all the proceedings had herein, said findings will be resubmitted to Mr. Justice G. H. for correction and resettlement at Cham- bers of the Supreme Court in the County Court House, COMMON FORMS. 367 Motions and Orders. County on the day of 19 — , at — o'clock in the noon. Dated, etc. Yours, etc. {Nmne and post office address of attorney.) Form No. 210. Motion to Amend or Resettle an Order. {The same as an ordinary notice of motion up to the point where the object of the motion is stated, tlien as follows) : To resettle and correct the order heretofore entered herein and filed ia the office of the Clerk of the County of on the day of by striking out and in- serting in the place thereof the following provision : . Or, so that said order shall read as follows : {Here set fm'th in full the proposed amended order.) Form No. 211. Stipulation Indorsed on Motion Papers Extending Time for a Hearing. It is hereby stipulated that the within motion be adjourned to the day of at the same time and place, and heard without prejudice to either party or the right of either party to make any preliminary or other objection. Dated, etc. {Signatures of attorneys for different parties.) 368 Bradbury's Lansing's forms and practice. Motions and Orders. Form No. 313. Note of Issue of Motion. [Title.] Motion to vacate an attachment {here specify other relief demanded on motion). Noticed to be heard at Special Term, Part I., on the day of . A. B., Attorney for plaintiff. C. D., Attorney for defendant. Form No. 313. Caption, Court Order.* At a Special (Trial) Term(^m New Yorh County Fart 1, 2 or 3, or other part as the case may le) of the New York Supreme Court, held in and for the County of at the County Court House therein, on the day of 19—. Present, Hon , Justice. {Names of Parties) Or. At a term of the Appellate Division of the Ne-w York Su- preme Court, Department, held at on the day of , 19 — . . Present, Hons. A. B., P. J. C. D., E. F., G. H. and J. K., JJ. {Names of Parties) 1 See subdivision Captions, in this chapter. COMMON FORMS. 369 Motions and Orders. Or. At a stated term of the United States Circuit (District) Court held in and for the district of at on the day of 19 — . Present, Hon. Circuit (District) Judge. {Names of Parties.) Or. At a term of the County Court for County of held at in said County on the day of 19—. Present, Hon.- , County Judge. (Or Special County Judge, Surrogate or Special Surrogate.)^ {Wames of Pa/rties.) Or. At a stated term of the New York Court of Appeals held at on the day of 19 — . Present, Hons. C.J. and JJ. {Wame of Parties.) iSee paragraph 67, arde, in subdivision Motions and Orders, this chapter. Vol. 1—24 370 BRADBURY'S LANSING's FORMS AND PRACTICE. Motions and Orders. John Jones, Plaintiff, Appellant, against William Brown, Defendant, Respondent. Or. At a term of the Surrogate's Court held in and for the County of — — — , at , in said county on the • day of 19—. Present, Hon. , (Special) Surrogate. {Title of Proceeding.) Form No. 314. Caption of Judge's Order. New York Supreme Court, County. {Namies of Parties^ Or. City Court of the City of New York. {Names of Parties^ Or. Surrogate's Court, County. {Names of Parties or title of Proceeding^ Or. County Court, County. {Nam,es of PaiHies.) COMMON FORMS. 371 Motions and Orders. Form No. 315. Court Order, General Form, Made on Notice. {Caption as inform No. 213.) A motion having been regu- larly made by the in the above-entitled action for an order {here state concisely the relief dema/nded) and said motion having come on regularly to be heard, now on read- ing and filing the notice of motion (order to show cause made by Mr. Justice ) dated the day of 19 — , and the affidavit of sworn to the day of , 19 — , (recite any other papers used in support of the motionf together with the affidavit of — sworn to the day of , 19 — , showing due service' of said motion papers, in support of said motion, and the affi- davit of sworn to the day of , 19 — , {recite any other papers), in opposition thereto; and after hearing A. B., Esq., counsel for the in favor of said motion, and C. D., Esq., counsel for the in opposition thereto, and due deliberation having been had, now on motion of B. & Q., attorneys for the , it is hereby Ordeeed, that said motion be and the same is hereby granted (denied) {recite any other direction which should he contained in the order ; as to which see the various recitals in 1 An interlocutory judgment should recite the papers upon which it is made the rule in regard thereto, being analogous to that governing orders made on motions. Adams v. Bristol, N. Y. Law J., Feb. 15, 1906, p. 1626; also case of same name, 108 App. Div. 303; Supp. . 2 If the service was personally made on a party to the action and the subsequent proceedings may require that an order in contempt be founded thereon, it is proper and usually essential, that the order should recite specifically when, where and how the papers were served, with the same particularity that is required in an affidavit of service of a summons. Such recitals are almost always considered, in subsequent proceedings, as show- ing, prima jade at least, that the papers were served as set forth in the order. See Johnston v. Mutual Reserve L. Ins. Co., 104 App. Div. 550; 93 Supp. 1052; Devlin v. Cooper, 84 N. Y. 410; Sheldon v. Wright, 5 N. Y. 553; Matter of Lennon, 166 U. S. 548; Galpin v. Page, 18 Wall. 350. See also paragraph 66, ante, page 340. 372 Bradbury's Lansing's forms and practice. Motions and Orders. the forms of orders contained in this chapter) with $10 costs to the agamst the . Enter, K. L., Justice of the Supreme Court. Form No. 316. Court Order, Another Form. {Caption as inform No. 213.) On reading and fihng the notice of motion (order to show cause made by Mr. Justice ) dated the day of , 19 — , the affi- davits of {recite all the affidavits used on the motion hy hoth parties) and after hearing A. B., Esq., attorney for the in favor of said motion, and C. D., Esq., attorney for the in opposition thereto, now on motion of A. B., attorney for the , it is hereby Okdeeed, that said motion be and the same is hereby in all respects granted (denied) {Insert such other direction as may he made) with $10 costs, etc. Enter, L. M:, Justice of the Supreme Court. Form No. 217. Court Order Made £x Parte. {Caption as inform JVo. 213.) On reading and filing the annexed affidavit of verified the day of , 19 — {here recite any other papers or proceedings on which the order is founded) by which it appears, COMMON FORMS. 373 Motions and Orders. {here recite hriefly the substance of the facts on which the order is founded), and that no previous application for such an order has been made, now on motion of A. B., attorney for , it is hereby Okdeked {recite any direction which the court may make). Enter, L. M., Justice of the Supreme Court. Form IVo. 318. Judge's Order, General Form, Made on Notice. {Names of court and parties as inform No. 214.) On read- ing and filing the notice of motion (order to show cause made by Mr. Justice ) dated the day of , 19 — , the affidavits of {recite all the affida- vits used on the viotion hy loth parties) and after hearing A. B., Esq., attorney for the in favor of said motion, and C. D., attorney for the in opposition thereto, now on motion of A. B., attorney for , it is hereby Oedeeed {recite any direction made hy the court) with $10 costs, etc. (See Form JSTo. for recital as to costs.) Dated the day of , 19 — . L. M., Justice of the Supreme Court of the State of ISTew York. Form No. 319. Judge's Order, Another Form. ' {NaTnes of court and parties as in form iVi?. 214.) A mo- tion having been made by the in the above-entitled 374 Bradbury's Lansing's forms and practice. Motions and Orders. action for ijiere state the relief demanded in the no- tice of motion) and said motion having come on regularl}' to be heard, now after reading and filing the said notice of mo- tion (or order to show cause made by Mr. Justice ) dated the day of , with due proof of service thereof and the aflBdavit of sworn to the day of in favor of said motion, and the affidavit of sworn to the day of , in opposition thereto, and after hearing A. B., Esq., attorney for the in favor of said motion, and C. D., Esq., attorney for in opposition thereto, now on motion of A. B., at- torney for the , it is hereby Oedeeed, that said motion be and the same is hereby in all respects granted (denied) {insert such other direction as may be madi) with costs, etc. Dated the day of , 19 — . L. M., Justice of the Supreme Court of the State of New York. Form No. 330. Order Made in Open Court Without Notice. {Caption as informs JVos. 213 or 214, as the case may he.) The above-entitled cause having appeared on the calendar of this court for trial on the day of , 19 — and the plaintiff (defendant) having applied for an adjournment because of the absence of a material witness, and the attor- ney for the having opposed said adjournment on the ground that it did not appear that the attorney for the had made any effort to secure the presence of said witness, it is hereby Oedeeed, that the trial of the said action be and hereby is adjourned to the- day of , 19 — , upon condi- COMMON FORMS. 375 Motions and Orders. tion that the forthwith pay to the $10 costs arrd that prior to the day of the attorney for the shall cause a deposition to be issued to take the testimony of said witness, and upon the failure of the attorney for the to comply with the terms of this order, said action is peremtorily set down for trial at this court on the day of , 19 — . {Direction to enter if a court order ; date, signature and title of judge if a judge's order.) Form No. 231. Becital in Order of Stipulation Kade in Open Court. And the attorney for the having stipulated in open court {here insert in full the stipulation made., as the recital in the order is the only evidence which will he received of tlie terms of the sti^pulation.y Form No. 333. Order Made on Consent- (^Caption as in forms Nos. 213 or 214.) On reading and filing the annexed stipulation of the attorneys for the plain- 1 See Smith v. Grant, 11 Civ. Pro. R. (Browne), 354; 3 St. R. 255. Under Rule 11, Gen. Rules of Prac, stipulations to be enforceable must be reduced to writing. Therefore, when a stipulation is made in open court and is not reduced to writing, the only evidence thereof is the order made in con- formity therewith. Care should be taken, therefore, to see that the stipula- tion is fully set forth in the recital in the order, not such recitals that the order is made on the stipulation made by the attorney for one of the parties in open court, without including the specific terms of the stipulation. 376 Bradbury's Lansing's forms and practice. Motions and Orders. tiff (defendant) and of A. B., the plaintiff (defendant), duly acknowledged the day of , 19 — , it is hereby. Oedeeed {insert in any matter provided for in the consent). {Add date, signature, eta., if judge's order ; or word '■'■Enter" with initials and title of judge if court order.) Form No. 333. Clause in an Order as to Special Appearance and Objection to Jurisdiction. And the defendant having appeared specially by A. B., his attorney, for the purpose of this motion only, and objected to the hearing of the motion on the ground that the court had no jurisdiction of the person of the defendant (or the subject of the action) and the court having heard and overruled said objection (or having sustained said objection) it is hereby, etc. Form No. 324. Recital as to Waiver of Objection to Jurisdiction. And the defendant having objected to the granting of this order, on the ground that the court did not have jurisdiction to make the same (or of the person of the defendant, or of the subject-matter of the action) and said defendant, by his at- tornej', having in open court duly waived^ said objection, now, etc. ' If there is a condition attached to the waiver, that is, if the other party agrees to do something as a condition of the waiver, the condition also should be set forth clearly. COMMON FORMS. 377 Motions and Orders. Form No. 335. Clause in an Order Overruling a Preliminary Objection. And the counsel for the plaintiff (defendant) having made a preliminary objection to the hearing of this motion, that no ground was stated in the affidavit on which the order to show cause herein was granted, for bringing this motion on in less than eight (five) days, according to the rules of this court (state fully the preliminary objection) and said objection having been overruled and said motion having been heard on the merits, now on reading and filing, etc. Form No. 336. Order on Default of Party against Whom Motion is Made. (As in form No. 215 to the recital of the attorneys appea/r- ing, in place of which insert the following : ) And on reading and filing of due proof- of service of the no- tice of motion (order to show cause) and the affidavits annexed thereto, now on motion of A. B., attorney for plaintiff (de- fendant), and no one appearing in opposition thereto, it is hereby Oedeeed, etc. [If the motion has ieen adjourned hy stipulation, insert the following : ) On reading and filing due proof of service of said notice of motion (order to show cause) returnable the day of , 19 — , and due proof by the affidavit of , sworn to the day of , 19 — , that said motion was adjourned to the day of , 19 — , (or on the return day thereof, said motion having been adjourned by stipulation of counsel to the day of , 19 — ), now, on motion of A. B., attorney for the plaintiff (defend- ant), and no one appearing in opposition thereto, it is hereby Oedeeed, etc. 378 Bradbury's Lansing's forms and practice. Motions and Orders. Form No. 337. Order Dismissing Motion on Default of Moving Party. {TiUe or caption as in forms Nos. 213 cmd 214.) On reading and filing the copy of notice of motion (order to show cause) in the above-entitled action, returnable the day of , 19 — , and said motion have been regularly reached on the calendar on the day of , 19 — , and no one appearing on behalf of the mov- ing party, now on reading and tiling said copy of notice of motion and the papers thereto annexed and on motion of C. D., attorney for the plaintiff (defendant) Oedered, that the said motion be and the same hereby is dismissed with $10 costs to the plaintiff (defendant) against the . {Signature, etc., as in form JSfo. 220.) Form No. 338. Clause in Order Dismissing a Motion Without Prejudice. Oedeeed, that the said motion be and the same hereby is dismissed without prejudice to the moving party to make such new motion, as he may be advised and with leave to make such new motion. Form No. 339. Justice's Order that Additional Affidavit may be Bead on a Motion before Him, Not yet Heard. ^ {The following may he indorsed, on the additional affidavit .■) Oedeeed that the foregoing affidavit may be read on the 1 See form No. 188 and notes; also form No. 201. COMMON FORMS. 379 Motions and Orders. hearing on the return of an order to show cause granted by me herein on the day of , 19 — , and that a copy of the foregoing aflidavit be served on the attorney for the not later than the day of , 19—. Dated the day of — . {Signature and title of judge) Form No. 330. Recital that the Moving Party Has Complied with the Conditions of a Leave to Renew Contained in a Former Order. And an order having been made heretofore in this action and filed and entered in the oflBce of the Clerk of the County of , on the day of , 19 — , denying the relief demanded on this motion, with leave contained in said order, however, to the plaintiff (defendant) to renew said motion if he should be so advised, upon condition that before renewing the same he should pay the balance of the arrears of alimony^ due from him to the plaintiff under the judgment of divorce granted to the plaintiff in her action against the defendant {or other condition as the ease may ie) and it appearing that said defendant has fully complied with the condition of said former order, now, etc. Form No. 331. Recital Where Motion is Not Heard When Originally Noticed, but at a Different Term, XTpon a New Notice. And it appearing that this motion was originally noticed to be heard at a special term of this court held in and for the 1 See Wetnurre v. Welmwe, 29 App. Div. 512; 51 Supp. 800 . 380 Bradbury's Lansing's forms and practice. Motions and Orders. County of- on the day of , 19 — , and was not then heard because of the unexpected adjournment of said term before said motion could be heard, and was subse- quently noticed, on the original and additional papers, to be heard at this term, being the earliest practicable day* on which the same could be heard, now on reading and filing, etc. Form No. 333. Becital in Order Denying Motion and Vacating a Stay. Ordered, that said motion to {recite the relief de- manded in the notice of motion) be and the same is here by denied, and the stay of proceedings granted to the defend- ants herein, by an order made the ■ — day of , 19 — , be and the same hereby is in all respects vacated with $10 costs, etc. Form No. 333. Becital Denying Motion on Condition. Ordered, that said motion to dismiss the above-entitled ac- tion because of the failure of the plaintiff to prosecute the same, be and the same hereby is denied, upon condition that the defendant place the said action upon the calendar of the term of this court for the term thereof and pay to the attorney for the defendant $10 costs of this motion 1 Such a recital as the above may sometimes be of great importance on appeal from an order as showing that the moving party has not been guilty of laches in making the motion. Otherwise in certain cases the order might be reversed as having been made too late without excuse being shown in the record for the delay. See Whipple v. Williams, 4 How. Pr. 28. COMMON FORMS. 381 Motions and Orders. within five days after the service of a copy of this order on the attorneys for the defendant, and if the provisions of this order are not complied vvdth, said motion will be granted, with $10 costs to the plaintiff against the defendant. Form No. 334. Order Declaring Waiver of Favor Granted in Previous Order. {State the entry of the previous order and the favor therein granted, also the condition attached thereto and the fact show- ing that said conditioti has not ieen complied with.") Okdeeed, that the plaintiff (defendant) is hereby declared and adjudged to have waived and abandoned the right and privilege given to hira by the order made and entered in this case on the day of , by reason of the failure of said to comply with the terms and conditions of said order within the time mentioned therein, and it is fur- ther Oedeeed, that said original motion on the part of the be and the same hereby is denied with $10 costs to the and that all further proceedings by and on be- half of the under the said order of the day of , 19 — , be and hereby are stayed. Form TSo. 335. Recital Denying Motion because of Interlineations and Erasures in Moving Papers.' Oedeeed, that said motion be and the same is hereby de- nied (or dismissed), on the ground that the moving papers are 1 See Henry v. Bow, 20 How. Pr. 215. 382 BRADBURY'S LANSING'S FORMS AND PRACTICE. Motions and Orders. SO defaced with interlineations and erasures that they ought not to be considered by the court, with $10 costs to the against the . ("With leave to the to renew said motion upon payment of said costs, upon new papers.) Form No. 336. Specifying Motion Papers. On reading and filing (distinctly specify each paper used on the motion and amoid such expressions as " all the papers and proceedings had hereinP See paragraphs 11 a/nd 16 ante, pp. 329 ard 330). Form No. 237. Recital of Document Theretofore Filed. And on reading the affidavit of sworn to the - day of and heretofore filed in an action in the Court, in which A. B. was the plaintiff and C. D. was the defendant, which said affidavit was filed in the office of the Clerk of the said Court in the County of on the day of , 19—. Or. On reading a certain judgment roll in an action in the Court between A. B., plaintiff, and C. D., defendant, which said judgment roll was duly filed and docketed in the office of the Clerk of this Court on the day of , 19—. Or. On reading a certain deed made by A. B. as grantor to C. D. as grantee, conveying certain premises in the City of ■ in the County of in the State of New York, COMMON FORMS. 383 Motions and Orders. which deed was recorded ia the ofnce of the Register of the County of on the day of , 19 — , in Liber of Conveyances at Page at — o'clock in the noon. Form No. 338. Direction that Scandalous and Impertinent Hatter may be Ex- punged from the Papers Submitted on a Motion. Obdeeed, that the scandalous and impertinent matter be- ing the matter contained in the paragraph marked " Second" ^ in the affidavit of sworn to the day of , 19 — , which said affidavit was submitted on this motion on behalf of the , be expunged therefrom and that said affidavit be not filed as a part of the records of the court on this motion, with permission to the attorney for the to file a new affidavit with such scandalous and im- pertinent matter expunged.^ Form No. 339. Suppressing Affidavit Bead on Motion because of Scandalous and Impertinent Matter Contained Therein. Oedeeed, that the affidavit of sworn to the (Jay of , 19 — , which was read on behalf of and submitted to the court on this motion, be and the same 1 Or otherwise identify the matter to be expunged, for example, the sentence beginning with the words and ending with the words . 2 See People v. Church, 2 Lans. 459; People v. Albany & Susquehanna R. R. Co., 8 Abb. Pr. (N. S.) 122; aff'd 57 N. Y. 161; Opdyke v. Marble, 8 Abb. Pr. 375; afif'd 44 Barb. 64; Powell v. Kane, 5 Paige, 265; aff'd 2 Edw. Ch. 450. See also note to next following form. 384 Bradbury's Lansing's forms and practice. Motions and Orders. hereby is suppressed and the contents thereof are not to be considered on this motion, nor shall the clerk file the same as part of the records of this motion ; this direction being made because of the scandalous and impertinent matter contained in said aiiidavit ; (and said motion is dismissed with $10 costs to the , to be paid by the attorney for the personally, for his misconduct in submitting said affidavit.)^ 1 The court has rather a broad discretion as to what penalty to inflict for the submission of affidavits containing scandalous matter. Of course, if they are submitted in favor of the motion the court may dismiss the motion and order that the affidavits be not filed. If, however, they are sub- mitted in opposition to the motion the court may refuse to receive them, or allow them to be filed. In either case the court may inflict a penalty by way of costs and grant permission to file new affidavits with the objec- tionable matter omitted, and in its discretion adjourn the motion for that purpose. If the affidavit has been filed the court may strike out the ob- jectionable matter or order the paper containing it withdrawn from the files. Of course, the object of all these motions is to cause the physical destruction, so far as the files of the court are concerned, of the paper con- taining the scandalous matter. Otherwise the direction to suppress or expunge would be of no benefit to the party aggrieved thereby, nor could the court, when the order is made of its own motion, as it may be, accom- plish in any other way than by a physical destruction or withdrawal of the objectionable document, the object of clearing its records of such scandalous matter. The question therefore arises, in case a party against whom such an order is made, wishes to appeal therefrom, how can the appellant present the suppressed or expunged matter to the appellate court? The practice does not seem to be pointed out in the adjudicated cases, but probably the only safe way to proceed would be to have the affidavit containing the objection- able matter marked for identification, which affidavit so marked should be referred to in the order and could then be presented to the appellate court, as exhibits frequently are which are not printed in the papers or case on appeal. See, generally, cases cited under preceding form. COMMON FORMS. 385 Motions and Orders. Form No. 240. Becitals as to Costs.* Okdeeed, etc., with $10 costs to the- Or. with $10 costs to the — to abide the event of the action. Or. with $10 costs to the— against the ■ against the - against the to be paid personally by the attorney for the this motion for his misconduct in {briefly specifying it). Or. upon payment by the to the $10 costs of this motion mthin — upon the attorney for the on of days of the service of a copy of this order, and in default of the payment of said costs within said time said motion is denied with $10 costs to the plaintiff (defend- ant) against the . Or. reversed, with $10 costs and printing disbursements of this appeal to the against the and the motion is denied with $10 costs to the against the Or. affirmed with $10 costs and printing disbursements of this appeal to the respondent against the appellant. 1 Costs of a motion cannot be collected unless they are awarded by the terms of an order, and it is therefore unnecessary to insert the words ''without costs" in orders made on practice motions, although such words are fre- quently inserted for prudential reasons. Vol. 1—25 386 bkadbuey's Lansing's fohms and practice. Motions and Orders. Form Wo. 341. Consent to Form of Order and Waiver of Notice of Settlement. "We hereby consent to the form of the foregoing order and waive notice of settlement thereof. {Signature of attorney.) {This consent should he indorsed at the 'bottom of the order ^ Form No. 342. Notice of Settlement of Order. Please take notice, that the within proposed order will be submitted to Hon. A. B., at Special Term, Part I of the New York Supreme Court at the . County Court House in New York County on the day of , 19—, at 10:30 A. M. for settlement and signature. Dated, . {Signature of attorney for the prevailing pa/rty.) To {Attorney for the adverse party.) Form No. 343. Notice of Entry' of Order. ( Usually indorsed on the hack of the copy of the order which in served.) Please take notice, that the within is a copy of an order 1 See subdivision Filing, in this chapter. See also paragraphs 33 to 41, pp. 333 to 335, this subdivision. COMMON FORMS. 387 Motions and Orders. duly filed and entered in the office of the clerk of the Court, County, on the . day of - 19—. Dated, , 19—. Yours, etc., A. B. To Attorney for C. D., Esq., (Post office address.y Attorney for . Form No. 344. Becital in Eesettled Order. {Caption asinforTn No. 212.) An order having been made herein and filed and entered in the office of the Clerk of the County of on the day of , 19 — , and a motion having been made on behalf of the to resettle the same, on the ground that certain affidavits read upon said motion, to wit : the affi- davits of A. B. and C. D., both sworn to on the day of , 19 — , were not recited in said order, and it ap- pearing to the court that such affidavits were read on said mo- tion (or specify other cause for resettlement)., now on reading and filing the notice of motion for such resettlement, dated the day of , 18 — , with proof of due serv- ice thereof on the attorney for the ■, submitted by F. M., Esq., counsel for the (moving party) and no one appearing in opposition thereto (or recite appearances if there ie any, and any further papers presented on the mo- tion for a resettlement) it is hereby 1 The post office address of the attorney need not be added to a notice of entry if it appears elsewhere on the indorsement of the papers. iSee paragraph 3, page 297. 388 Bradbury's Lansing's forms and practice. Notices. Okdeeed, that said order entered in the above-entitled ac- tion if in the office of the Clerk of the County of on the day of , 19 — , be and the same is hereby resettled so as to read as follows: {The safest practioe is to here insert an entirely new order, except the caption and the title of the action or proceeding. Some attorneys repeat the caption and title also, hut this is unnecessary.) XVII, NOTICES. FORMS. NO. PAGE. 245. Notice indorsed on paper returned 391. 246. Notice to produce paper at trial 391. 247. Notice of substitution of judge or officer to hear special proceeding 392. 248. Notice of payment of money into court 393. 249. Notice requiring party to appoint a new attorney upon death or disability of former attorney 393. 1. In general. — Notices, in law, are either actual or con- structive. For example, all the world has constructive notice of a properly acknowledged deed or mortgage duly recorded, affecting specific real property, and those dealing with it thereafter, are deemed to do so, with notice of the contents of such a deed or mortgage. There are other notices which are actual in themselves, but are constructive in their opera- tion. Thus, a notice of the pendency of an action is construc- tive notice to all parties subsequently dealing with the prop- erty affected by the suit in which the notice is given. Like- wise, a notice of a mechanic's lien which is, in fact, an actual notice, addressed to the county clerk in New York and filed in his office, is constructive notice to all parties who become interested in the property affected thereby after the filing of the notice of lien. There is still another class of constructive notices ; such, for example, as arises from the possession or occupation of property ; it being a general rule that posses- sion or occupation of property is notice of at least a claim of title. Many kinds of notices are treated herein under other appro- COMMON FORMS. 389 Notices. priate titles. Subdivision I of Chapter I treats of Notices and Demands. Under Subdivision XVI., of this Chapter, will be found notices of motion. Chapter IV. treats of noticics OF APPEAiiANCE. NoTicEs OF LIS PENDENS are treated under Actions Relating to Eeal Property. Likewise other specific forms of notice will be found in their appropriate places throughout this work. 2. Bight to notice. — After a party has once appeared in an action, either personally or by attorney, he is entitled to no- tice of all future proceedings in the action, although he de- faults in pleading. Marline v. Lowensteln, 68 N. Y. 456 ; Lochte V. Moeschler, 12 St. E. T63 ; Hart v. Small, 4 Paige, 651 ; King v. Stafford, o How. Pr. 30. 3. Notice to an attorney is usually notice to the client. Hanna v. Dexter, 15 Abb. Pr. 135. Provided the informa- tion amounting to notice was secured by the attorney in the same transaction. Howard Ins. Co. v. Halsey, 8 JST. Y. 272. 4. Bankruptcy ; notice to copartner. — Actual notice by one copartner, of bankruptcy proceedings against a firm debtor, discharges the debt as to both the copartners. Wool- ley V. Hatch, N. Y. Law J., Feb. 5, 1906, p. 1501. (Dele- hanty, J., City Ct.) In re Beerman, 112 Fed. 662. 5 . Written notice. — " It may be stated as a general rule that when a statute requires notice to be given to a party as the basis of a forfeiture of some right or interest, it means a notice in writing, in the absence of some provision in the statute prescribing a method of giving the notice in some other way." Erving v. Mayor, etc., of N. Y., 131 N. Y. 133. Notices in legal proceedings should invariably be in writ- ing. MoDermott v. Board of Police, 25 Barb. 635 ; Matter of Cooper, 15 Johns. 533 ; La7ie v. Cary, 19 Barb. 537 ; Kerr V. McOuire, 28 N. Y. 446. " The general rule of practice requiring a written notice to 390 Bradbury's Lansing's forms and practice. Notices. produce papers has reference to the preliminary preparation for trial. The reason of the rule does not apply to a notice given in the presence and hearing of the court, while the trial is in progress from day to day." Kerr v. McGuire, 28 N. Y. 446. 6. Address and Signature. — While, as already stated, con- structive notices may follow under certain circumstances, the word notice as used in legal proceedings usually refers to a written notice. -The principal parts of such notices are the address, the body of the notice and the signature. All three features are important, as the address determines the person who is to be affected by the notice, the- body, matter as to which notice is given, and the signature determines the valid- ity of the notice, as it has been held that an unsigned notice is merely a memorandum and is a nullity so far as giving notice is concerned. Demelt v. Leonard, 19 How. Pr. 182. When a statute requires a notice to be subscribed by the one giving notice, it is usually required that the name be written by such party. While, therefore, it is the general rule of law that any person who authorizes and directs another to sign his name for him, will be bound by such signature to the same extent that he Avould have been had he written his own name, it is usually safer for the person giving the notice to sign it himself, because of the difficulty in proving a signa- ture written by another person at the direction of the per- son whose name is signed. It has been held that a typewritten signature to a summons, which the Statute^ requires should be subscribed by the plain- tiff's attorney, is sufficient.^ But the courts do not seem in- clined to extend this rule to documents generally which the Statute requires should be subscribed by the person execut- ing it. 1 Code Civ. Pro. § 417. 2 Mayor v. Eisler, 2 Civ. Pro. R. 124; Barnard v. Heydrick, 49 Barb. 62; Mutual L. Ins. Co. v. Ross, 10 Abb. Pr. (N. S.) 260. COMMON FORMS. 391 Notices. 7. Notice of bankruptcy ; promissory note — Notice to the oi'iginal payee of a promissory note of proceedings in voluntary bankruptcy, where the bankrupt knows that the note has been transferred, will not discharge the debt evi- denced by the note to the holder thereof, where the holder had no actual knowledge of the bankruptcy proceedings. Co- lumlia Bank v. BirUtt, 174 N. Y. 112 ; aff'd 195 U. S. 345. But if the holder of the note has actual knowledge of the bankruptcy proceedings, before the bankrupt is discharged, he will be bound by the discharge, and cannot thereafter sue on the note. Woolley v. Hatch, N. T. Law J., Feb. 5, 1906, p. 1501. (Delehanty, J., City Ct.) Form No. 345. Notice Indorsed on Paper Returned. Please take notice, that the within paper is returned to you for the reason that it is not folioed (or was served too late, the time to serve the same expiring on the day of , 19 — , or that the same is not verified ; w specify other reasons for returning the same). Dated, , 19—. Yours, etc. {Signature and address of attorney.) To {Name and address of attorney who served paper.) Form No. 346. Notice to Produce Papers at Trial. [Title.] Please take notice, that you are hereby required to pro- duce upon the trial of this action, the following papers, to 392 Bradbury's Lansing's forms and practice. Notices. wit : — {Here clearly specify all papers to which the notice relates') and in default of your production of the same, sec- ondary evidence of the contents thereof will be given upon the trial of this action. Dated, , 19—. Tours, etc. (8ignatv/re of attorney giving notice.) To {Attorney for opposite party.) Form No. 347. Notice of Substitution of Judge or Officer to Hear Special Proceeding. (Code Civ. Pro. § 53.) [Title of proceeding.] Please take notice, that by reason of the death (sickness, resignation, removal from office, absence from county or other disability) of before whom the above-entitled pro- ceeding was begun, such proceeding will be continued and a hearing had therein before , who has been substi- tuted in the place of said by an order of the Supreme Court, dated the day of , 19 — and filed in the office of the clerk of the County of the day of , 19 — , {or otherwise state how the substitu- tion has been made) at the office of said , JSTo. — Street, in the City of on the day of , 19 — , at 2 o'clock in the afternoon. Dated, , 19—. Tours, etc. {Signature cmd address of attorney giving notice.) To {Names and address of attorneys for all parties appearing in proceeding^ COMMON FORMS. 393 Notices. Form No. 348. Notice of Payment of Money Into Court. (Code Civ. Pro. § 732.) [Title.] Please take notice, that the sum of Dollars was paid into court in the above-entitled action on the • day of , 19 — , pursuant to the tender heretofore made on the day of , 19 — , which sum defendant conceives to be suflBcient to make amends for the injury to the plaintiff, or to pay the plaintiff's demand, together with the costs of the action to this time. Dated, , 19—. Tours, etc. {Signature and address of defendants attorney.) Form No. 349. Notice Requiring Party to Appoint a New Attorney Upon the Death or Disability of Former Attorney.^ (Code Civ. Pro. § 65.) [Title.] To A. B., the plaintiff (defendant) in the above-entitled action. Sir:— Notice is hereby given to you, that you are hereby required to appoint a new attorney in the above-entitled action in the place of C. D., who is now dead (or removed or suspended from office or otherwise disabled to act). Dated, , 19—. Tours, etc. {Signature and address of attorney giving notice.) 1 Section 65 of the Code provides that "If an attorney dies, is removed, suspended or otherwise becomes disabled to act at any time before judg- ment in an action is entered, no further proceedings shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another attorney has been given to the party, either per- sonally or in such other maimer as the court directs." 394 beadbury's Lansing's forms and practice. Oaths. XYIII. OATHS NO. FORMS. PAGE. 250. Constitutional oath of office 398. 251. Oath of referee 399. 252. Oath of commissioner or referee in an action for dower 400. 253. Oath without the Gospels 400. 254. Oath administered on the Gospels 401. 255. Affirmation 401. 256. Oath of the foreman of grand jury 401. 257. Oath of the grand jury 401. 258. Proclamation on swearing the juror 402. 259. Oath of petit jurors in civil causes 402. 260. Juror's oath on a trial for misdemeanor 402. 261. Oath of juror 402. 262. Oath of a witness in a civil action 403. 263. Oath of a witness on a trial for a misdemeanor 403. 264. Oath of a witness on a trial for felony 403. 265. Oath of interpreter 403. 266. Oath of interpreter to a deaf and dumb witness 404. 267. Oath of a party or interested witness preliminary to proving the handwriting of a subscribing witness 404. 268. Oath of party or witness to admit evidence of the contents of a paper not produced 404. 269. Oath to be administered to a witness before arbitrators 404, 270. Oath of poor witness on application for expenses 405. 271. Oath on application of juror or constable for are mission of a fine 405. 272. Oath on application to excuse or discharge a juror or constable.. 405. 273. Oath of constable to keep jury on adjournment 406. 274. Oath of constable on retiring with a jury or jurors on leave 406. 275. Oath of constable who attends a jury when they retire to con- sider of the verdict in civil and criminal actions 406. 276. Oath of constable who attends a jury when they retire to consider their verdict in a justice's court 407. 1 . The constitutional provision, reproduced in form No. 250, post, is an. old one, exactly the same language being found in the Constitution of 1846, as is found in the present funda- mental law. It provides that " Members of the Legislature, and all officers, executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respectives offices, take and subscribe the fol- lowing oath or affirmation : " (Form No. 250). After the form of the oath follows the provision that " No COMMON FORMS. 395 Oaths. Other oath, declaration or test shall be required as a qualifi- cation for any office of public trust." 2. All proceedings are Toid on the part of a public officer who fails to take the constitutional oath of office. Matter of David, M Misc. 192; 89 Supp. 812. So held, where com- missioners appointed under the Highway Law, to determine upon the necessity of a proposed highway, took an oath to " faithfully and fairly try the questions and determine the issues referred and submitted to me as such commissioner and make a just and true decision and certificate thereof according to the best of my understanding," instead of the form of oath prescribed by the Constitution. It should be observed in con- nection with the case last above cited that section 84 of the Highway Law requires such commissioners to " take the Con- stitutional oath of office." 3. Unconstitutional statutory test oaths. — A statute which requires a candidate who is elected to office to file a sworn itemized statement of his election expenses, within ten days after his election, and upon his failure so to do, declar- ing a forfeiture of the office, is repugnant to Art. XIII, § 1 of the Constitution as prescribing an oath different from the one required by it. Stryher v. Churchill, 39 Misc. 578 ; 80 Supp. 589. A statute requiring police commissioners to be members of a certain political party is in hostility to the spirit of Art. XIII, § 1 of the Constitution and is therefore void. Rath- hone V. Wirth, 6 App. Div. 277 ; 40 Supp. 535 ; aff'd 150 JST. Y. 459. It has been held that a statute requiring an excise commis- sioner to make and file an oath that he was not interested in the manufacture or sale of intoxicating liquors, and that n failure so to do should disqualify him from holding the office was null and void under Art. XIII, § 1 of the Constitution. People ex rel. Bishop v. Palen, 74 Hun, 289 ; 28 Supp. 225. A statute which requires an applicant for appointment to a 396 Bradbury's Lansing's forms and practice. Oaths. position in a public office to sIjow his fitness therefor, is not an illegal test within the meaning of the Constitution. Rogers V. Common Council of Buffalo, 123 N. Y. 173. 4. General mode of swearing Except as otherwise spe- cially prescribed in this article, when an oath is administered the witness shall lay his hand on the Gospels, and express as- sent to the oath, and it shall be according to the present prac- tice, except that the witness need not kiss the Gospels. Code Civ. Pro. §845. Where a person takes an oath upon a book which he be- lieves to be the Gospels, but which in fact are not the Gospels, the oath will nevertheless be valid under the statute. People V. Cook, 8 ]Sr. T. 6Y, 84. 5. When laying of the hand npon the Gospels is dis- pensed with. — The oath must be administered in the following form, to a person who so desires, the laying of the hand upon the Gospels being omitted : " You do swear, in the presence of the ever-living God." While so swearing, he may or may not hold up his hand, at his option. Code Giv. Pro. § 846. 6. When affirmation to he made A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form : " You do solemnly, sincerely and truly, declare and affirm. Code Civ. Pro. § 84Y. 7. Other modes of swearing.— If the court or officer, be- fore which or whom a person is offered as a witness is satis- fied that any peculiar mode of swearing, in lieu of, or in ad- dition to, laying the hand upon the Gospels, is, in. his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness. Code Civ. Pro. % 848. 8. Swearing persons not Christians. — A person believing COMMON FORMS. 397 Oaths. in a religion, other than the Christian, may be sworn accord- .ingtothe peculiar ceremonies, if an}', of his religion, instead of as prescribed in section 845 or section 846 of this act. Code Civ. Pro. % 849. 9. Court may examine witness. — The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness to ascertain his ca- pacity and the extent of his knowledge ; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory. Code Cm. Pro. § 850. 10. Swearing falsely in any form perjury. — A person swearing, affirming or declaring in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon the Gospels. Code Civ. Pro. §851. If a party taking an oath makes no objection to the mode of administering it at the time, he is deemed to have assented to the particular form adopted and is liable to all the conse- quences of perjury, as if it had been administered in strict conformity to the Statute. People v. Cook, 8 JST. Y. 67, 84. 11. Substantial compliance witli the form prescribed is essential to the validity of the oath, and if a material part of the oath be omitted, it is as though no oath had been taken. Matter of David, 44 Misc. 194; 89 Supp. 812; Schattuclc v. BasGom, 105 N. Y. 39 ; Merritt v. Village of Portohester, 71 N. Y. 309. 12. AflBdavit signed but not orally sworn to.— The deliv ery to the officer of an affidavit signed by the supposed affi- ant, in which affidavit it recites that " A. B. (the affiant) be- ing duly sworn, deposes and says," etc., is not sufficient upon which to found a prosecution for perjury, unless the affiant is actually orally sworn by the officer at or before the time he 398 Bradbury's Lansing's forms and practice. Oaths. affixes his certificate that the affiant was so sworn. G' Reilh] V. People, 86 N. Y. 154 ; to the same effect is Case v. Peo- pU, Y6 ]Sr. Y. 242. Prior to 1899, section 851 of the Code provided that swear- ing or affirming in any form, authorized by law, should con- stitute the crime of perjury if the affidavit was untrue, and it was held under this language that the mere signing of an affi- davit, without actually swearing to it orally before the officer, was not a form of oath authorized by law, and signing such an affidavit did not constitute the crime of perjury. 0^ Reilly V. People, 86 E". Y. 154. This section of the Code was amended in 1899 so as to read : " That a person swearing, affirming or declaring in any form, where an oath is authorized by law," etc. "Whether or not this amendment changes the doctrine announced in 0^ Reilly v. People has not been determined. It would appear, however, from the language in the case last cited that the amendment would not change the rule therein announced, because the court there held that the signing of an affidavit and handing the same to the officer without taking an oral oath, was not taking an oath at all. It seems, how- ever, from the same case, that if the affidavit should be in form "I do hereby swear," or " I do hereby depose and say," and should then be signed by the affiant and handed to the officer for his certificate, that this would be taking an oath under the statute. Form No. 350. Constitutional Oath of Office. (N. Y. Const., Art. XIII, § 1.) " I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the COMMON FORMS. 399 Oaths. duties of the office of , according to the best of my ability." {Additional oath of elected officers.) '' And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, con- tributed, or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giv- ing or withholding a vote at the election at which I was elected to said office, and have not made any promise to in- fluence the giving or withholding any such vote." Form No. 251. Oath of Referee.1 (Code Civ. Pro. § 1016.) [Title.] County of New York, ss. : I, A. B., the referee appointed in the above-entitled action (proceeding) by an order duly made and entered in the office of the clerk of the County of on the day of , do solemnly swear that I will faithfully and fairly 1 The referee's oath may be waived where all the parties whose interests will be affected by the result are of age and are present in person or by attorney, either by a written stipulation or an entry in the referee's minutes. Code Civ. Pro. § 1016. Proceeding to trial without objection, is a waiver of oath. McGowan V. Newman, 54 How. Pr. 458; Nason v. Ludington, 8 Daly, 140; 56 How. Pr. 172. The failure of the referee to be sworn does not affect the validity of the judgment, Katt v. Germania Fire Ins. Co., 26 Hun, 429, as the failure to take an oath is a mere irregularity and may be corrected by an order nunc pro tunc. Keator v. Ukter B. R. Co., 7 How. Pr. 41. Where the record is silent, it will be presumed that the referee was sworn. Hatfield V. Malcolm, 71 Hun, 51; 24 Supp. 596. 400 bradbuey's Lansing's forms and practice. Oaths. try the issues (determine the questions referred to me) and make a just and true report according to the best of my un- derstanding. Subscribed and sworn to before me this day of , 19 — . Form No. 353. Oath of Commissioner or Referee in an Action for Dower. (Code Civ. Pro. § 1608.) [Title.] County of I, A. B., one of the commissioners (or referees) appointed in the above-entitled action by an order duly iiled and entered in the office of the clerk of the County of , on the day of, do solemnly swear (or affirm) that I will faithfully, honestly and impartially discharge the trust re- posed in me. Subscribed and sworn to before me this day of 19—. Form No. 253. Oath without the Grospels. You do swear in the presence of the ever-living God that the affidavit subscribed by you is true. COMMON FORMS. 401 Oaths. Form No. 354. Oath Administered on the Gospels. Tou do solemnly swear that the affidavit subscribed by you is true. So help you God. Form No. 355. Affirmation. Tou do solemnly, sincerely, truly declare and affirm that the affidavit subscribed by you is true. Form No. 356. Oath of the Foreman of Grand Jury. You, as foreman of this grand jury, shall diligently in- quire and true presentment make of all such matters and things as shall be given you in charge ; the counsel of the people of this State, your fellows, and your own, you shall keep secret ; you shall present no person from envy, hatred or malice, nor shall you leave anyone unpresented through fear, favor, affection or reward or hope thereof ; but you shall present all things truly as they come to your knowledge, ac- cording to the best of your understanding. So help you God. Form No. 357. Oath of the Grand Jury. The same oath which your foreman has now taken before you on his part, you, and each of you, shall well and truly observe on your part. So help you God. Vol!^ 1—26 402 beadbury's Lansing's forms and practice. Oaths. Form No. 258. Proclamation on Swearing the Juror. Juror, look upon the prisoner ; prisoner, look upon the juror. Form No. 359. Oath of Petit Jurors in Civil Causes. You, and each of you, shall well and truly try the several issues which you shall have in charge at this trial terra of the Supreme Court and true verdict give in them, respectively, ac- cording to evidence. So help you God. Form No. 360. Juror's Oath on a Trial for Misdemeanor. Tou shall well and truly try this issue of traverse, between the people of the State of New York, and A. B., the defend- ant, and a true verdict give therein according to the evidence. So help you God. Form No. 361. Oath of Juror. You shall well and truly, and true deliverance make, between the people of the State of New York and A. B., the defendant, and a true verdict give, according to evidence. So help you God. COMMON FORMS. 403 Oaths. Form No. 362. Oath of a Witness in a Civil Action. The evidence you shall give in this issue joined between A. B., plaintiff, and C. D., defendant, shall be the truth, the whole truth and nothing but the truth. So help you God. Form No. 363. Oath of a Witness on a Trial for a Misdemeanor. The evidence you shall give in this issue of traverse, between the people of the State of New York and A. B., the defend- ant, shall be the truth, the whole truth and nothing but the truth. So help you God. Form No. 364. Oath of a Witness on a Trial for Felony. The evidence that you shall give between the people of the State of New York and A. B., the prisoner at the bar, shall be the truth, the whole truth and nothing but the truth. So help you God. Form No. 365. Oath of Interpreter. .You shall well and truly interpret between the court, the jury, the counsel and the witness, in this issue joined be- tween A. B., plaintiff, and C. D., defendant. So help you God. 404 Bradbury's Lansing's forms and practice. Oaths. Form No. 366. Oath of Interpreter to a Deaf and Dumb Witness. You shall well and truly interpret to E. F., a witness liere produced in behalf of A. B. in this issue joined, between A. B., plaintiff, and C. D., defendant, the questions and demands made by the court to the said E. F., and his answers made to them. So help you God. Form No. 26TI. Oath of a Party or Interested Witness Preliminary to Proving the Handwriting of a Subscribing Witness. Tou shall true answers make to such questions as shall be put to you touching your (or the plaintiff's, or defendant's) ability to procure the attendance of A. B., a subscribing witness to this paper (or, the paper in question). So help you God. Form No. 368. Oath of Party or Witness, to Admit Evidence of the Contents of a Paper not Produced. You shall true ansvA'ers make to such questions as shall be put to you touching the power or control j'ou have over any paper (or the loss or destruction of any paper) which would be proper evidence in this action. So help you God. Form No. 369. Oath to be Administered to a Witness before Arbitrators. You do swear that the evidence you shall give to the arb- itrators here present, in a certain issue joined between A. B. COMMON FORMS. 405 Oaths. and C. D. shall be the truth, the whole truth and nothing but the truth. So help you God. Form No. 310. Oath of Poor Witness on Application for Expenses. You shall true answers make to such questions as shall be put to you touching your application for the expense of your attendance at this court as a witness in behalf of the people of this State. So help you God. Form IS o. 2111. Oath on Application of Juror or Constable for a Remission of a Fine. Tou shall true answers make to such questions as shall be put to you, touching your application (or, the application for and in behalf of A. B.) for the remission of your (or, his) fine, for default in attending as a juror (or, constable) at this (or, some former) term of this court. So help you God. Form No. 2112. Oath on Application to Excuse or Discharge a Juror or Constable. Tou shall true answers make to such questions as shall be put to you, touching your application (or, the application for, and in behalf of A. B.) to be discharged (or, excused) from at- tendance as a juror (or, constable) at this court. So help you God. 406 Bradbury's Lansing's forms and practice. Oaths. Form No. 273. Oath of Constable to Keep Jury on Adjournment. Tou shall retire with the jury to some convenient room to be furnished by the sheriflp ; j^ou shall not suffer any person to speak to or communicate with them, nor do so yourself on any subject connected with this trial, and return them at the order of the court at the next meeting thereof. So help you God. Form ]Vo. 374. Oath of Constable on Retiring With a Jury or Jurors on Leave. You shall retire with such jurors as have leave of absence from this court, you shall not speak to them yourself in rela- tion to this trial, nor suffer any person to speak to them ; and you shall return them without delay. So help you God. Form Tfo. 375, Oath of Constable Who Attends a Jury When They Betire to Con- sider of the Verdict in Civil and Criminal Actions. Tou shall well and truly keep every person sworn on this jury in some private and convenient place without meat or drink, water excepted ; you shall not suffer any person to speak to them, nor speak to them yourself, without leave of the court, except it be to ask them whether they have agreed on their verdict, until they have agreed on their verdict. So help you God. COMMON FORMS. 407 Offer of Judgment. Form No. 376. Oath of Constable who attends a Jury when they Retire to Con- sider their Verdict in a Justice's Court. (Code Civ. Pro. § 3006.) Tou swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as ju- rors upon this trial together, in a private and convenient place, without any meat or drink, except such as shall be ordered by me ; that you will not suffer any communication to be made to them, orally or otherwise; that you will not communi- cate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed upon their verdict, until they are discharged ; and that you will not, be- fore they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed upon. XIX. OFFEK OF JUDGMENT. FORMS. NO. PAGE. 277. Offer by defendant to liquidate damages conditionally 420. 278. Acceptance by plaintiff of offer to liquidate damages 420. 279. Offer by defendant to allow judgment to be taken against him. 421. 280. Offer of judgment in mechanic's lien case 421. 281. Offer of judgment in a mechanic's lien case, with additional offer of deficiency judgment 422. 282. Offer by plaintiff when defendant sets up a counterclaim 422. 283. Affidavit of attorney as to authority to make offer of judgment.. 423. 284. Attorney's affidavit of authority to the entry of judgment against joint defendants 423. 285. Affidavit of attorney as to authority of attorney to accept offer of judgment 424. 286. Acceptance by plaintiff of the offer of defendant 424. 287. Acceptance by defendant of plaintiff's offer for judgment 425. 288. Judgment for plaintiff on filing offer and acceptance 425. 289. Judgment on acceptance by defendant of offer of plaintiff 426. 1. In general. — Sections 731 to 740, inclusive, of the Code contain provisions for liquidating the damages after suit has been brought, either by a tender of the amount the defend- 408 Bradbury's Lansing's forms and practice. Offer of Judgment. ant deems to be due, or an offer to allow judgment to be taken for a similar sum, and where a counterclaim is inter- posed by the defendant exceeding the sum demanded in the complaint, or a sum sufficient to make the recovery for the plaintiff less than fifty dollars, allowing the plaintiff to make an offer of judgment. Sections 731 to T34, inclusive, are dis- cussed under the subdivision Tendeb in this chapter and the remaining sections in this subdivision. 2. Offer to liquidate damages conditionally. — In an ac- tion to recover damages for breach of a contract, the defend- ant's attorney may, with the answer, serve upon the plain- tiff's attorney, a written offer, that, if the defendant fails in his defense, the damages may be assessed at a specified sum. If the plaintiff serves notice that he accepts the offer, with or before the notice of trial, and damages are awarded to him on the trial, they must be assessed accordingly. Code Civ. Pro., § 736. 3. Effect of refusal of offer. — If the plaintiff does not ac- cept the offer, he cannot prove it, upon the trial. But if the damages aw^arded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses, necessarily in- curred by him in preparing for the trial of the question of damages. The expenses must be ascertained, and the amount thereof determined by the judge, or the referee, by or before whom the cause is tried. Code Civ. Pro. § 737. 4. Defendant's offer to compromise ; proceedings there- on. — The defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with costs. If there are two or more de- fendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant's attorney, a written COMMON FORMS. 409 Offer of Judgment. notice that he accepts the offer, he may file the summons, complaint and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of ac- ceptance is not thus given, the offer cannot be given in evi- dence upon the trial ; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. Code Cm. Pro. % 738. 5. Several defendants. — A judgment against all of several joint debtors must be deemed more favorable than a judg- ment for the same amount against a part of them only, and therefore an offer to allow a judgment must be made by all of the several joint defendants, otherwise it seems the plain- tiff is not bound to accept it. Griffiths v. De Forest, 25 How. Pr. 336 ; Brideribecker v. Mason, 16 How. Pr. 203 ; Brush V. Gilmer, 16 Abb. Pr. 292. 6. An offer by one partner is not sufficient to bind the other members of the partnership, unless it affirmatively ap- pears that they have all consented to the offer. Rich v. Rob- erts, 10 Supp. 915 ; Farnsworth v. Halstead, 10 Supp. 763 ; Garrison v. Garrison, 67 How. Pr. 271 ; Binney v. Le Gal, 19 Barb. 592. But an attorney may sign an offer and state in his affidavit that he has authority to make the offer on behalf of two or more partners. Bulger v. Rosa, 47 Hun, 435. 7. Severing action. — If the plaintiff elects to accept an offer contained in an answer as to one claim made in the com- plaint and moves to sever the action and continue it as to the claim not admitted, he is only entitled to enter a judgment for costs upon the determination of the cause of action as to which the case is continued. Waite v. Kaldenherg Go., 68 Hun, 528 ; 22 Supp. 1006. But if the offer is made under sec- tion 758 of the Code and the plaintiff proceeds with the case as to such separate claim, he is entitled to enter judgment on the offer with costs. Bradbury v. Winterbottom, 13 Hun, 410 bbadbury's Lansing's forms and practice. Offer of Judgment. 536. The last-named case, however, seems to have been over- ruled in Walsh v. Empire Brick tfe Supply Co., 90 App. Div. 498 ; 85 Supp. 528, in which it was held that the plain- tiff could not include costs in the judgment in such a case, unless he elected not to continue the action as to the remain- ing cause of action. The provision of the Code that if there are two or more defendants and the action can be severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken, has no application to actions against defendants whose liability is joint. Barnerman v. QuacJcen- bu.sk, 17 Abb. N. C. 103 ; 2 How. Pr. (N. S.) 82. 8. Ambiguous offer. — The offer should not be ambiguous, uncertain or indefinite, and if it is, the party receiving it may still be entitled to costs, although the offer may have been more favorable than the recovery. Bettis v. Goodwill, 82 How. Pr. 137. 9. Must include costs. — An offer of judgment which does not include costs is nugatory. Loring v. Morrison, 26 App. Div. 139 ; 48 Supp. 975. 10. "Costs to date."— An offer to allow judgment for a specified sum with " costs to date," is a valid offer which entitles the defendant to costs if the recovery is not more favorable to the plaintiff than the offer. The older cases hold- ing to the contrary have been overruled. Lynk v. Weaver, 128 E". T. 171. 11. One of several claims.— An offer may be made as to one of several distinct claims set up in the complaint and thus make the award of subsequent costs depend upon the result of the litigation over the disputed claim. Budd v. Jackson, 26 How. Pr. 309. 12. Replevin. — It seems by an offer of judgment, the de- fendant can always throw upon the plaintiff, the responsibilitj^ COMMON FORMS. 411 Offer of Judgment. for the costs incurred in prosecuting an unsuccessful litigation as to any article of property described in the complaint. New- ell Universal Mill Co. v. Muxlow, 11 l!^. T. 170. 13. Equitable actions. — Section 728 of the Code providing for an offer of judgment applies to equitable actions. Kier- nan v. Agricultural Ins. Co., 3 App. Div. 26 ; 37 Supp. 1072 ; Singleton v. Home Ins. Co., 121 N. Y. 644. 14. Discretionary costs. — Where costs are discretionary, it still rests with the court to determine \vhether the defend- ants who have made an offer in conformity with the Code, should not only be deprived of their costs, but be compelled to pay costs also. Bathgate v. Raskin, 63 N. Y. 261. See Schulte V. lestershire Boot (& Shoe Co., 88 Hun, 226 ; 34 Supp. 663. Costs in an equitable action being in the discretion of the court, a complaint may be dismissed without costs, in which event the defendant is not entitled to costs even though he has made an offer of judgment. Connolly v. Hyams, 42 App. Div. 63 ; 58 Supp. 932. 15. Foreclosure. — An offer of judgment may be made in a foreclosure suit. Bathgate v. HasUn, 63 JST. Y. 261. But if such an offer which fails to include an offer for a personal de- ficiency judgment is without effect as regards costs. Rollins v. Barms, 23 App. Div. 240 ; 48 Supp. 779. \ 16. Mechanic's lien. — An offer may be made in an action to foreclosure a mechanic's lien. Lumhard v. Syracuse, B., etc., B. Co., 62 N. Y. 290 ; Kennedy v. McKone, 10 App. Div. 88 ; 41 Supp. 782. If in such an action the owner serves an offer of judgment which is more favorable than the recovery as against such owner, although a more favorable judgment is entered against other parties to the action, costs will be awarded to such owner. Lumhard v. Syracuse, etc., R. Co., 62 IST. Y. 290. 412 Bradbury's Lansing's forms and practice. Offer of Judgment. Such an oflfer should contain a provision for a personal de- ficiency judgment in a proper case therefor. Kennedy v. Mo- Eone, 10 App. Div. 88 ; 41 Supp. 782. 17. Discretion of court. — "Where a defendant has made a valid offer of judgment in an action to foreclose a mechanic's lien, and plaintiff's recovery is not as favorable as the offer, the court has no discretion and all costs accruing after the offer was made should be awarded to the defendant. Schulte V. Lestershire Boot (& Shoe Co., 88 Hun, 226 ; 34 Supp. 663. 18. Offer and acceptance, by whom subscribed.— Unless an oflfer or an acceptance, made as prescribed in either of the last four sections, is subscribed by the party making it, his attorney must subscribe it, and annex thereto his affidavit, to the effect that he is duly authorized to make it, in behalf of the party. Code Civ. Pro. % T40. 19. Signature. — If the offer is signed by the attorney alone there must be added thereto, the attorney's affidavit that he is authorized to make it, and in the absence of such affidavit the offer is of no effect and the defect is not waived by serving a notice on defendant's attorney that the offer cannot be ac- cepted, even though the defect is not pointed out in the notice. Riggs V. Way dell, 17 Hun, 515 ; appeal dismissed, 78 N. Y. 586, in an opinion, however, which affirms the doctrine an- nounced in the court below. To the same effect is MoFarren V. St. John, 14 Hun, 387. But when a judgment is actually entered on an offer, which does not contain an aflSdavit by the attorney, of his authority, third parties cannot take advantage of the defect in the offer. St. John Wood Worhing Co. v. Smith, 82 App. Div. 348 ; 82 Supp. 1025, aflftrmed, without opinion, 178 E". Y. 629 ; and the defect is waived by the defendant if he does not move to open the judgment thus entered. Citizens' National BTc. v. Shato, 46 Hun, 589. In a paper served by an attorney it is not essential that the paper have the genuine written signature of the attorney sub- COMMON FORMS. 413 Offer of Judgment. scribed to it, although the Statute requires that it be subscribed by him. His name subscribed in any manner, either written or printed, is sufficient, inasmuch as it is treated by the attor- ney as subscribed by him, so there is nothing in the inquiry whether judicial notice will be taken of it by the mere in- spection of the paper. Smith v. Kerr, 49 Hun, 29 ; 1 Supp. 454. 20. After appeal from justice's court to county court. — An offer of judgment, made after an appeal from a justice's court to the county court, for a new trial, which offer is signed by the respondent's attorney, need not contain an affi- davit by the attorney that he is authorized to make the offer as such an offer is governed by § 30Y0 of the Code and not by § 740. Cutting v. Jessmer, 101 App. Div. 283 ; 91 Supp. 658. 21. The failure to annex an affidavit of tlie authority of the attorney to accept an offer of judgment is a mere irregu- larity of which third parties cannot take advantage. St. John Wood Working Co. v. Smith, 82 App. Div. 348 ; 82 Supp. 1025 ; aff'd without opinion, 1Y8 N. Y. 629 ; Citizens Nati Bh. V. Shaw, 46 Hun, 589, and is waived by the defendant if he does not move to open the judgment thus entered. Citi- zens Natn Bh. V. Shaw, 46 Hun, 589. 22. The servlee of a copy of the offer and affidavit of authority annexed is a compliance with the Statute and the delivery of the original papers is not essential to the service. Smith V. Kerr, 49 Hun, 29 ; 1 Supp. 454. The foregoing case is frequently cited at the present time as being good law, and the doctrine therein announced does not seem to have been questioned. Under the authority of the same case it has been recently held that the service of a copy of a verified claim against a town was sufficient under the Statute, which required a verified statement of the claim to be filed. Soper v. Town of Greenwich, 48 App. Div. 354; 65 Supp. 1118. The same doctrine has also been approved in serving a notice of lien un- 414 Bradbury's Lansing's forms and practice. Offer of Judgment. der a municipal contract. Kelley v. City of Syracuse, 10 Misc. 306 ; 31 Supp. 283. 23. Acknowledgment of offer. — An offer of judgment made by a party need not be acknowledged or verified. Pfin- ter V. Stumm, Y Misc. 526 ; 27 Supp. 1000 ; Marhes v. Epstein, 13 Civ. Pro. E. (Browne) 293. 24. Acceptance. — A consent that judgment be entered is equivalent to an offer, and if judgment is entered without a formal acceptance, the irregularity may be supplied, nunc pro tunc. White v. Bogert, 73 JST. Y. 256. 25. Time for acceptance. — The plaintiff has ten days within ■which to accept an offer of judgment, and if he accepts, the acceptance relates back to the time of the offer, and the serv- ice in the meantime of an answer or counterclaim is nuga- tory so far as it affects the right of the plaintiff to accept the offer. U. S. Mortgage & Trust Co. v. Hodgson, 28 Misc. 447 ; 58 Supp. 1132. After a trial, however, an offer cannot be accepted, although notice of acceptance is served within ten days after the offer was made. Corning v. Radley, 25 Misc. 318 ; 54 Supp. 565. 26. An offer served less than ten days before the trial of the action is unavailable to the defendant, as the plaintiff has ten days within which to accept such an offer and if the trial occurs before his time has expired the plaintiff's right to tax costs cannot be limited by the offer. Herman v. Lyon, 10 Hun, 111, and cases cited : Sares v. Matthews, 15 Supp. 510. An offer of judgment served after a motion has been made before a referee for an amendment to a pleading, is too late as having been made after the trial was begun, and such an offer is a mere nullity and need not be returned by the attor- ney receiving it. Wa/rner v. Babcock, 9 App. Div. 398 ; 41 Supp. 493. COMMON FORMS. 415 Offer of Judgment. 27. Retraction of offer. — An offer duly made cannot be withdrawn during the ten days allowed for its acceptance. Mg Vicar v. Keating, 19 App. Div. 581 ; 46 Supp. 298 ; Uackett v. Edwards, Merrill & Co., 22 Misc. 659 ; 49 Supp. 609. 28. A second offer may be made in the same action where the first offer is not accepted. Hibhard v. Randolph, 72 Hun, 626 ; 25 Supp. 854. 29. Amendment of offer. — It seems that the court has power to allow an amendment nunc pro tunc of an offer of judgment, but as a rule this power will not be exercised where the amendment would be likely to seriously prejudice the rights of the plaintiff. Biggs v. Waydell, 78 If. Y. 586 ; aff'g 17 Hun, 515 ; Eagan v. Moore, 11 Daly, 199 ; Werholowsky V. Greenwich Co., 14 Abb. N. C. 96 ; 5 Civ. Pro. E. 303 ; Star-k V. Starh, 2 How. Pr. (N. S.) 360 ; McFarren v. St. John, 14 Hun, 387 ; Flynn v. Westmayer, 4 Supp. 188. But an amendment may be allowed to correct an inadver- tent error where a judgment entered upon an offer is attacked collaterally by reason of the irregularity. Sta/rh v. Starh, 2 How. Pr. (N. S.) 360. 30. Amendment increasing demand in complaint. — "Where, after an offer of judgment has been served, the com- _ plaint is amended so as to increase the demand, some provi- sion should be made allowing the defendant to increase the offer of judgment so as not to defeat the defendant's rights under such offer. Brooks v. Mortimer, 10 App. Div. 518; 42 Supp. 29. 31. In determining wliether an offer is more favorable than a recovery, the plaintiff is entitled to have interest added to the amount of the offer from the time of the offer to the date of the judgment. Bathgate v. Haskvn, 63 N. Y. 261. 416 Bradbury's Lansing's forms and practice. Offer of Judgment. But in an offer for a sum specified " with interest," without specifying the amount of interest or the date from which it is to be reckoned, the mention of interest should be disregarded. Smith V. Bowers, 3 Civ. Pro. K. (Browne) 72. 33. If the damages are unliquidated or not subject to computation, interest cannot be added to the offer in deter- mining whether or not it is more favorable than the recovery. Johnston v. Catlin, 57 IST. Y. 652. 33. " Full sum sued for. " — An offer may be for " the full sum sued for, " without specifying the amount. Ross v. Bridge, 24 How. Pr. 163. 34. Costs cannot be included in a recovery when deter- mining whether or not it is more favorable than an offer. Singleton v. Home Ins. Co., 121 N. Y. 644 ; Pruyne v. Lynch, 44 Hun, 587. 35. Eeduction of judgment by appellate court. — Where a judgment more favorable to the plaintiff than the offer, is affirmed at General Term, but modified in the Court of Ap- peals so as to be less than the offer, the defendant is entitled to costs from the time the offer was made, but in such a case the Court of Appeals has discretion as to the costs in that court, and may allow no costs on the appeal. This, however, does not affect the right of the defendant to costs in the lower courts. Sturgis v. Stafford, 58 IST. Y. 103. The fact that the offer of judgment is not printed in the appeal papers does not preclude the defendants from the ben- efits of the offer where the demand is reduced on appeal, so that the defendant becomes entitled to costs. Bathgate v. EasUn, 63 N. Y. 261. 36. Additional allowance. — If the defendant has made an offer of judgment more favorable to the plaintiff than his re- covery, the court has power to also make an additional allow- COMMON FORMS. 417 Offer of Judgment. ance to the defendant. Landon v. Van Etten, 5Y Hun, 122 ; 10 Supp. 802. 37. Fraud; subsequent action. — It is not a fraudulent preference for a debtor against whom several actions have been commenced by different creditors to serve an offer of judgment in the last action commenced and thus enabled that plaintiff to recover judgment before the others. Bea/rs V. Wheeler, 76 N. Y. 213 ; Stein v. Levy, 55 Hun, 381. 38. An assignee of a cause of action in a pending suit takes it subject to defendant's rights to offset costs, if a more favorable judgment than that vs^hich the defendant has offered, is not obtained. Hibbard v. Mandolph, 72 Hun, 626 ; 25 Supp. 854. 39. Bringing notice to jury of unaccepted offer. — An at- tempt on the part of one of the parties to an action to place before the jury the fact that his adversary has made an offer of judgment would justify a trial justice in granting a motion to vrithdraw a juror, but the granting of such a motion rests in the discretion of the court, provided he corrects the er- ror by positively charging the jury to disregard the alleged offer. Wager v. Oorwin, 72 App. Div. 785 ; 76 Supp. 513. 40. Extinguishing counterclaim as affecting amount of recovery. — If upon the trial, the plaintiff extinguishes a set- off of the defendant, which, with the verdict obtained, exceeds the defendant's offer, the plaintiff is entitled to full costs. Buggies v. Fogg, 7 How. Pr. 324 ; Turner v. Honsinger, 31 How. Pr. 66 ; TompM/ns v. Ives, 36 N. Y. 75 ; aff'g 30 How. Pr. 13. In the case last mentioned the counterclaim set up was on an entirely different cause of action, and the answer containing such counterclaim was served after the offer of judgment had leen made, and the Court remarked, at Page 77, "The offer should be construed as an offer in the action, at the time it was served, in its then condition. It had no ref- VoL. 1—27 418 Bradbury's Lansing's forms and practice. Offer of Judgment. erence to the case when changed in its condition by future proceedings. In effect, it was this : as the case now stands between us, I will allow you to take judgment for the sura offered. It meant this, and nothing more, when served ; and its signification could not be enlarged from day to day after- wards without any intimation from the defendants of its more comprehensive import, and the section under which the offer was made evidently contemplates that it should take effect at the time of service." See also Dowd v. Smith, 8 Misc. 619 ; 29 Supp. 821, aff'd 80 Hun, 604 ; 31 Supp. 112Y ; Bathgate v. Sashvn, 63 N. Y. 261. 41. Answer containing counterclaim served before offer. — If an answer has been served containing a counterclaim when the offer is made, the amount of the counterclaim which is extinguished cannot be added to the amount of the re- covery in determining whether or not the offer is more favor- able than the recovery. Bathgate v. Raskins, 63 N. Y. 261. 43. Offer served before answer containing counterclaim. — If an answer containing a counterclaim is served after the offer of judgment is served, the offer cannot be considered as extinguishing the counterclaim, and if the plaintiff recovers an amount which with the counterclaim is more than the offer, the recovery is deemed to be more favorable than the offer, and the plaintiff is entitled to costs. Kautz v. Vandenburgh, 77 Hun, 591 ; 28 Supp. 1046. 43, Offer and answer served same day. — If the offer of judgment and the answer containing a counterclaim are served on the same day, the offer of judgment can nevertheless be deemed to have been served before the answer, and it seems in such a case that the actual priority of service may be de- termined by the court as a fact. Kautz v. Vandenburgh, 77 Hun, 591 ; 28 Supp. 1046. COMMON FORMS. 419 Offer of Judgment. 44. If a counterclaim which is extinguished arises out of the same transaction on which the cause of action set forth in the complaint is based, and the judgment for the plaintiff would be conclusive against the defendant on such a counter- claim, the amount of such a counterclaim raaj'^ be considered to determine whether or not the offer is as favorable as the recovery ; and it seems that if such counterclaim is based on an entirely different cause of action and is not set up by way of answer when the offer is made, that the amount of the counterclaim extinguished will be added to the recovery in de- termining whether or not the offer is as favorable as the re- covery. Dowd V. Smith, 8 Misc. 619 ; 29 Supp. 821 ; aff'd 80 Hun, 684 ; 31 Supp. 1127. 45. Plaintiff's offer to compromise counterclaim ; pro- ceedings thereon. — Where the defendant sets up a counter- claim, to an amount greater than the plaintiff's claim, or suffi- cient to reduce the plaintiff's recovery below fifty dollars, the plaintiff may serve, upon the defendant's attorney, a written offer, to allow judgment to be taken against him, for a spec- ified sum with costs, or against the defendant for a specified sum, and against the plaintiff for costs. If the defendant, within ten days thereafter, serves upon the plaintiff's attor- ney, notice that he accepts the offer, either party may file the summons, complaint, answer and offer, or copies thereof, and proof of acceptance ; and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence, upon the trial ; but, if the recovery is not more favorable to the defendant than that so offered, he will not be entitled to recover costs from the time of the offer, but must pay costs from that time. Code Civ. Pro. § 739. 420 BRADBURY'S LANSING'S FORMS AND PRACTICE. Offer of Judgment. Form No. 37 7. Offer by Defendant to LicLuidate Damages Conditionally.' (Code Civ. Pro. § 736.) [Title.] Sir — Take notice, that the defendant hereby offers, pursu- ant to statute, that if he fails in his defense in the above-en- titled action, the damages may be assessed at the sum of dollars. Dated ,19—. Yours, etc., E. F., Defendant? To I. J., Esq., Plaintiff's Attorney. Form No. 378. Acceptance by Plaintiff of Offer to Liquidate Damages. (Code Civ. Pro. § 736.) [Title.] SiE — Take notice, that the plaintiff accepts the offer of the defendant in this action, that if he fails in his defense in said action, the damages may be assessed at the sum of dollars. Dated , 19—. Yours, etc., I. J., Plaintiff.^ To E. r., Esq., Defendanfs Attorney. 1 This offer must be served with the answer to be 'of any effect and in that respect is different from the offers hereinafter discussed. Code Civ. Pro. 4 736. The acceptance must be made with or before the notice of trial. Id. See form No. 278. 2 If signed by the defendant's attorney there should in all cases be an affidavit of authority. See forms Nos. 283 and 284. It need not be ac- knowledged if signed by the defendant personally. See paragraph 22, this subdivision. - If signed by the plaintiff's attorney there should in all cases be an affi- davit of authority. See forms Nos. 285, also notes to forms Nos. 283 and 284. It need not be acknowledged. Paragraph 22, this subdivision. coatMON S'orMS. 421 Offer of Judgment. Form No. 379. Offer by Defendant to Allow Judgment to be Taken against Him. (Code Civ. Pro. §738.) [Title.] Sir — Take notice, that the defendant, 0. D., hereby offers to allow judgment to be taken against him in the above-en- titled action for the sum of dollars (and interest thereon from the day of , 19 — ) {or for the recovery of the following described property, viz. : or to the effect that, etc.), with costs. Dated , 19—. E. F., Defendcmt} To I. J., Esq., Plaintiff'' s Attorney. Form No. 380. Offer of Judgment in Mechanic's Lien Case.^ (Code Civ. Pro. § 738.) [Title.] The defendant hereby offers to allow a judgment in this action establishing the amount of the plaintiff's lien at the sum of $ , and costs. Dated , 19—. {Signature of Defendant^ 1 See forms Nos. 277 and 278 and notes. 2 The above form is taken from the case of Pfister v. Stumm, 7 Misc. 526; 27 Supp. 1000. But see Kennedy v. McKone, 10 App. Div. 88; 41 Supp. 782, holding that an offer to allow a judgment merely, without an additional offer of a deficiency judgment, was not sufficient to entitle the defendant to costs. See form No. 281. 3 If the offer is signed by the attorney for the defendant, there should, in each case, be an affidavit by him that he is authorized to make the offer. See notes to forms Nos. 277, 278 and 281. 422 bradbuky's Lansing's forms and practice. Offer of Judgment. Form No. 281. Offer of Judgement in a Mechanic's Lien Case, with Additional Offer of Deficiency Judgment.' (Code Civ. Pro. § 738.) [Title.J The defendant, A. B., hereby offers to allow judgment to be taken against him in this case establishing the amount of the plaintiff's lien at the sum of $1,000, and costs, also that a deficiency judgment may be entered against the defendant for any amount which the plaintiff may fail to recover upon a foreclosure and sale of the property under the lien described in the complaint, if the proceeds of the sale of said pf'operty should be less than the said sum of $1,000 and costs. Dated , 19—. {Signatv/re of Defendant.^ Form No. 382. Offer by Plaintiff, when Defendant sets up a Counterclaim. (Code Civ. Pro. § 739.) [Title.J Sir — Take notice, that the plaintiff offers to allow judg- ment to be taken in the above-entitled action against him for 1 See Kennedy v. McKone, 10 App. Div. 88; 41 Supp. 782, where it was held that an offer, offering to allow judgment, establishing the plaintiff's lien at $1,000, and costs, which was not accepted, and the plaintiff only recovered $600, but secured a personal deficiency judgment, as to which there was no provision in the offer, that under such circumstances, the plain- tiff was entitled to recover costs. 2 If the offer is signed by the attorney for the defendant, there should, in each case, be an affidavit by him that he is authorized to make the offer. Riggs v. Waydell, 17 Hun, 515, appeal dismissed 78 N. Y. 586; McFarren v. St. John, 14 Hun, 387, and cases cited in paragraph 19, ante, this sub- division. COMMON FORMS. 423 Offer of Judgment. the sum of dollars (and interest thereon from the -day of— , 19 — ), with costs (or against th defendants for the sura of dollars, and against the plaintiff for costs). Dated , 19—. Yours, etc. {Signature of Plavntiff) To E. F., Esq., Defendant's Attorney. Form No. 283. Affidavit of Attorney as to Authority to Make Offer of Judgment. (Code Civ. Pro. § 740.) [Title.] OotTNTY or ss. : J. C, being duly sworn, says that he is the attorney for the defendant in the above-entitled action and that he is author- ized by said defendant A. B. to make the foregoing offer of judgment. J. C. Sworn to, etc. Form No. 384. Attorney's Affidavit of Authority to the Entry of Judgment against Joint Defendants. >^ [Title.] City of County of [ ss. : A. B., being duly sworn, says that he is the attorney for 1 The above form was held sufficient in the case of Bulger v. Rosa, 47 Hun, 435, where an attempt was made to attack the judgments collaterally. It was there said that if authority was not given to the attorney for one of 424 Bradbury's Lansing's forms and practice. Offer of Judgment. the defendants in the above-entitled action ; that the deponent is duly authorized by J. S., one of the said defendants, said defendants being copartners, to make the foregoing offer of judgment in behalf of said defendants and has subscribed the same pursuant to said authority. A. B. Sworn to before me, etc. Form ]Vo. 385. Affidavit of Attorney as to Authority of Attorney to Accept Offer of Judgment. (Code Civ. Pro. § 740.) [Title.] County of ss. : H. M., being duly sworn, says he is the attorney for the plaintiff in the above-entitled action and that he is authorized by said plaintiff, A. B., to make the foregoing acceptance of the offer of judgment made by the defendant herein. H. M. Sworn to, etc. Form ]Vo. 286. Acceptance by Plaintiff of the Offer of Defendant. (Code Civ. Pro. § 738.) [Title.] SiE — Take notice, that the plaintiff hereby accepts the offer the partners, as stated by him, such party had a complete remedy in a motion to set aside the judgment as against him, upon the ground of irregu- larity, citing Garrison v. Garrison, 67 How. Pr. 271, in which last-mentioned case, it was held that one partner had no power at common law, or under the Code, to offer judgment in an action against the firm. COMMON FORMS. 425 Offer of Judgment. of the defendant, C. D., in the above-entitled action, to allow judgment to be taken against him for the sum of dollars (and interest thereon from the day , 19 — ) (or for the property therein specified ; or to the effect that, etc.), with costs. Dated , 19—. Yours, etc., {Signature of Plaintiff ^^ To E. F., Esq., Defendant's Attorney. Form No. 387. Acceptance by Defendant of Plaintiflfs Offer for Judgment. (Code Civ. Pro. §'739.) [Title.] SiE — Take notice, that the defendant in the above-enti- tled action, accepts the offer of the plaintiff therein, to allow judgment to be taken against him for the sum of dollars (and interest thereon from the day of , 19 — ), with costs (or against the defendant for the sum of dollars (and interest thereon from the day of , 19 — ), and against the plaintiff for costs). Dated , 19—. Tours, etc. (Signature of Defendant.)^ To I. J., Esq., Plaintiff's Attorney. Form No. 388. Judgment for Plaintiff on Filing Offer and Acceptance. (Code Civ. Pro. §788.) [Title.] Judgment of the day of , 19 — . On filing the summons and complaint in the above-entitled 1 See notes to forms Nos. 283, 284 and 285. 2 See notes to forms Nos. 277 and 278. 426 Bradbury's Lansing's forms and practice. Offer of Judgment. action with the offer of defendant, and proof of due accept- ance of said offer by the plaintiff, and on motion of I. J., attorney for the plaintiff, it is adjudged, that A. B., the plain- tiff, recover from and against C. D., the defendant, the sum of dollars {or the following described property, viz. : or stating other relief), with the costs of this action, amount- ing to the sura of dollars, making together the sum of dollars and that plaintiff have execution therefor. J. L., Clerk of Count}/. Form ]Vo. 389. Judgment on Acceptance by Defendant of Offer of Plaintiff. (Code Civ. Pro. § 739. ) [Title.] Judgment of the day of , 19 — . On filing the summons, complaint and answer in the above- entitled action, and the offer of the plaintiff , with proof of due acceptance thereof by the defendant, and on motion of attorney for defendant. It is adjudged, that the defendant recover from the plaintiff the sum of dollars, with dollars costs, mak- ing together the sum of dollars, and that the defend- ant have execution therefor (or that the plaintiff recover from and against the defendant the sum of dollars, and that the defendant recover from and against the plaintiff the costs of this action, amounting to the sum of dollars which said sum so awarded as costs being deducted from the sum of dollars adjudged to the plaintiff leaves the sum of- dollars which it is adjudged the plaintiff re- cover from the defendant and that the plaintiff have execu- tion therefor).! J. L., Clerk of County. 1 If the costs are more than the plaintiff's recovery the judgment should read accordingly. COMMON FORMS. 427 Payment into Court. XX. PAYMENT INTO COUET. FORMS. NO. PAGE. 290. Notice of payment into court of amount tendered by defendant 431 1. Distinction between payment and deposit in conrt. — There is a slight distinction in some cases between a payment into court and a deposit in court, although at times the terms are used interchangeably. The term, deposit in court, is usu- ally applied where a fund is taken into custody by the court, pending the determination as to its title and, as the term im- plies, is a deposit as distinguished from a payment. In the case of an interpleader, however, there is both a deposit and a payment, because the fund is deposited pending a determina- tion relative to the title and at the same time the party asking for the interpleader and depositing the money in court really pays the money so far as he is concerned, and is thereby re- lieved from further liability to the extent of the amount de- posited. Payment into court, strictly speaking, relates to those cases where a party sometimes before, but usually after, suit is brought, pays into court, the amount which he either ad- mits to be due, or the full amount claimed, so as to avoid further costs or an enforcement of any remedy which the other party to the action or proceeding might have, if the payment was not made. The question of deposit is discussed under that title in this subdivision. Tender is also sometimes followed by either a deposit in court or a payment into court, hut as a tender may be made in some cases without either a deposit or payment into court, that question is also discussed under a separate subdivision. As to payment into court under an order of interpleader see the chapter on that subject. 2. Unless authorized by statute, payment of money into court cannot be made, except in conformity with an order of the court. Baker v. JSunt, 1 Wend. 103. 3. The code provides, that in an action where the complaint 428 BRADBtTEY'S LANSINg's FORMS AND PRACTICE. Payment into Court. demands judgment for a sum of money only, and the action is brought to recover a certain sum, or one which may be re- duced to certainty by calculation, or to recover damages by a casual or involuntary injury, or a like injury to property, the defendant or his attorney may at any time before the trial, tender to the plaintiff, or his attorney, such a sum of money as he concedes to be sufficient to make amends for the injury, or to pay the plaintiff's demand together with the costs of the action to that time. But a tender thus made does not avail the defendant unless the money is accepted, or is paid into court, and notice thereof in writing served upon the plaintiff's attorney before the trial and ^vithin ten days after the tender. If the plaintiff takes out the amount paid in, he accepts the tender. Code Civ. Pro. §§ Y31, 732. 4. In what courts tender and payment may be made The tender and payment into court provided for in sections 731 and 732 apply only to actions begun in the Supreme Court, the City Court of the City of New York or the County Court. Code Civ. Pro. § 3347, subdivisions 4 and 6. 5. Notice of payment into court. — If tender is made after suit and the amount is paid into court, it is necessary that no- tice in writing of the payment be served upon the plaintiff's attorney, before the trial and within ten days after the tender. Code Civ. Pro. § 732. 6. Necessity of payment into court to keep tender good. — The Code points out a method whereby subsequent costs may be thrown on the plaintiff, if the defendant makes a suffi- cient tender and pays the money into court after the suit is brought. It is equally necessary where a money demand with- out conditions is made for a party who has made a tender before suit, which has not been accepted, to pay the money into court after the suit is brought, to keep the tender good, but the latter rule is established by decisions of the courts and not by statute. Wilson v. Dor an, 110 N". Y. 101. If, COMMON FOEMS. 429 Payment into Court. however, the money is paid into court under the Code, after suit is brought, the only effect is to charge the plaintiff with costs, whereas if the tender had been made before suit was brought, and is followed by payment into court after the suit is brought, the defendant is entitled to judgment dismissing the complaint. Wilson v. Doran, 110 I^. Y. 101 ; Becker v. Boom, 61 ]Sr. Y. 317 ; Plainer v. Lehman, 26 Hun, 374 ; Mur- ray V. Bethune, 1 "Wend. 191. 7. A conditional tender does not require that the money should be paid into court as, in such case, the title to the money would not pass unless the condition on which it was tendered was performed, whereas a payment into court passes title to the money and the one making the tender might thereby be compelled to bring an action to secure the per- formance of the condition upon which the tender was made. Cass V. Higenbotam, 100 IST. Y. 248. 8. "The giving of notice in case of tender after suit brought, is no longer a mere matter of practice under the reg- ulation of the court, but a part of the pi'esoi'ibed statutory procedure. It is undoubtedly competent for a plaintiff to waive the service of the statutory notice, but we do not think that the former decisions in respect to notice, to which we have referred, justify the conclusion that the failure of the plaintiff to return the answer which contained several defenses, and among them the defense that tender before suit, or to otherwise raise the question before trial, is a waiver of the right to insist on the trial that the money paid into court was not a good tender after suit brought by reason of the fact that the statutory notice was not given." Wilson v. Doran, 110 N. Y. 101, at p. 108. 9. Pleading payment into court. — In order to make a tender, before suit brought, available, the defendant must pay the money into court and allege that fact in his answer. Becker v. Boon, 61 E". Y. 317 ; Breunich v. Weselman, 100 430 BRADBURY'S LANSING's FORMS AND PRACTICE. Payment into Court. N. Y. 609. If the tender is made after suit brought it need not be pleaded, it may be made at any time before the trial. Code Civ. Pro. § Y31. 10. Money paid into court belongs to plaintiff in any event. — A payment into court, is payment jjro tanto, and to that extent, admits the plaintiff's cause of action. Murray V. Bethune, 1 Wend. 191 ; Spalding v. Yandercooh, 2 Wend. 431 ; Slack v. Brown, 13 Wend. 390 ; Johnston v. Columbian Ins. Co., 7 Johns. 315. The tender and payment into court, however, is only an ad- mission of liability as to the amount thus tendered and paid and the defendant may defend against any claim by the plaintiff, beyond the sum tendered, upon any ground con- sistent with the admission. Wilson v. DoroM, 110 N. Y. 101. The common-law rule that an offer or tender implied no concession of liability, but was merely an offer to buy peace, and that if not accepted by the plaintiff, the amount offered did not belong to the plaintiff if the verdict went adversely to his claim, is not recognized and does not exist under our sys- tem of procedure, vi^here the rule is that a tender and subse- quent payment into court of the moneiy tendered in case of a refusal to accept the money, belongs to the plaintiff, and his title thereto cannot be disputed, whatever may be the re- sult of the action. Taylor v. Brooklyn El. R. Co., 119 N. Y. 561. 11. Tender after suit brought and less than ten days be- fore trial. — The plaintiff has ten days within which to ac- cept a tender. Code Civ. Pro. § Y32. If, therefore, the case come to trial in less than ten days after the tender is made, the rule seems to be, under analogous cases, that the plaintiff will not lose his right to costs even though his recovery is less than the tender and he has not accepted it. Herman v. Lyons, 10 Hun, 111 ; Sares v. Maithews, 15 Supp. 510. COMMON FOEMS. 431 Payment into Court. 12. Continning suit after acceptance of tender The Code (§ Y34) seems to give to the plaiatifl the right to pro- ceed with the action after accepting a tender, and in such a case the judgment to be entered, in case the plaintiff secures a judgment more favorable than the tender, must be for the excess only, and costs depend on the amount of the judgment entered for such excess. From this it seems, under the provi- sion of § T32 reading : " If the plaintiff takes out the amount paid in, he accepts the tender," that such acceptance can be construed as a complete satisfaction of the claim in suit. Prob- ably this rule only applies to tenders made under the Code after suit brought and where a tender is made before suit and is followed by a payment into court after suit if the plaintiff proves a cause of action for more than the amount paid into court, he is entitled to a verdict and judgment for the whole amount, but must credit the amount paid into court, on his execution. Kelley v. West, 36 Super. Ot. 304. Form No. 390. Notice of Payment into Court of Amount Tendered by Defendant. (Code Civ. Pro. § 732.) [Title.] SiE — Take notice, that the amount of dollars, together with the sum of dollars, the costs^ of this ac- tion to the time of such tender, heretofore tendered to you {or to the plaintiff) on the day of , 19 — , in the above-entitled action, has been paid into court on the day of , 19 — . Dated , 19—. Yours, etc., E. F., Defendants Attorney. To T. E., Plaintiff's Attorney. 1 If the tender was made before the suit was brought of the full sum due it would seem that the costs of suit need not be included in the amount paid into court. See Subdivision Tendee. 432 beadbuky's Lansing's forms and practice. Petitions. XXI. Petitions. FORMS. NO. PAGE. 291. Petition — general form 436 292. Petition in action in Federal Court 437 1. In general. — Throughout this -work will be found forms of petitions adapted to particular proceedings, and in this sub- division only a general view is taken of the formal requirements of petitions, as it will be found more convenient in actual prac- tice to have all the forms relating to a particular subject in one place. 2. "A petition, in common phrase, is a request in writing ; and, in legal language, describes an application to a court in writing, in contradistinction to a motion, which may be made viva voce} " Shaft v. Phosnix Mut. L. Ins. Co., 6Y N. Y. 544. 3. Petitions are of two kinds, those which are incidental to some proceeding in an action, and. those which take the place of a complaint as the foundation of a special proceeding. Under the modern practice, affidavits ending with a prayer for relief have largely taken the place of petitions. As to in- cidental proceedings in an action, an affidavit is sufficient, un- less a statute or a rule of the court specifilcally requires the application to be made by petition. 4. Petition as aflBdavit — The word " affidavit" includes a veriiied pleading in an action, or a verified petition or answer in a special proceeding. Code Cm. Fro. § 3343, subd. 11. 5. Usually a petition is proper only when specifically authorized by statute, and cannot be used in place of a com- plaint or bill in equity unless so authorized. SoA/re v. ET/yton Land Co., IS Ala. 85 ; State Bank v. Plainfield First Nat. Bh., 34 K J. Eq. 450. 1 See paragraph 1, page 299. COMMON FORMS. 433 Petitions. 6. The Code, in many instances, requires a petition as the foundation for a special proceeding. In a surrogate's court, a special proceeding must be com- menced by the service of a citation issued upon the presenta- tion of a petition. But upon the presentation of the petition, the court requires jurisdiction to do any act which may be done before actual service of the citation. Code Cvo. Pro. § 2516. The sv/rrogate inay, at any time, require a party to file a W7'itten petition or answer containing a plain and concise state- ment of the facts constituting his claim, objection or defense, and a demand for a decree, order or other relief to which he supposes himself to be entitled. The surrogate may require the petition or answer to be verified and a copy thereof to be served upon any other person interested. A party who fails to comply with such a requirement may be treated as a party in default. Code Civ. Pro. § 2533. Compelling claimants to present claims. — An executor or administrator may by petition secure an order according to the provisions of the Code requiring a claimant against an estate to present his claim. Code Civ. Pro. % 2718 A. Accounting of executor or administrator. — An application by an executor or administrator for a judicial settlement of his account, and that a decree may be made revoking his let- ters and discharging him accordingly must be made by peti- tion. Code Civ. Pro. % 2698. And also the final application for a settlement of the executor's accounts must be made by petition. Code Civ. Pro. % 2728. Revocation of probate of will. — An application for the rev- ocation of the probate of a will must be made by petition. Code Civ. Pro. §§ 2648, 2649. Ancillary letters testamentary or of administration. — An application for ancillary letters testamentary or ancillary let- ters of administration must be made by petition to the sur- rogate. Code Civ. Pro. % 2698. Oral petitions. — Unless a surrogate requires a written peti- tion, if such a petition is not expressly required by the Code, Vol. 1—28 434 Bradbury's Lansing's forms and practice. Petitions. the petition or the ansvfer thereto, may be presented orally, in which case the substance thereof must be entered upon the records of the court. Code Gov. Fro. § 2533. 7. An application for an appointment of a general guardian is made by petition. Hule 52, Oen. Mules of Prac. 8. Writ of liabeas corpus. — An application for a writ of habeas corpus other than one to testify, must be made by written petition, signed either by the person for whose relief it is intended or by some person in his behalf. Code Giv. Pro. % 2017. The petition must be verified by the oath of the petitioner to the effect that he believes it to be true. Gode Civ. Pro. § 2019. 9. Writ of liabeas corpus to testify. — The Code requires an application for a writ of habeas corpus to testify to be veri- fied by affidavit. Code Civ. Pro. § 2012. There is no require- ment that such an application should be made by petition, and therefore probably it may be made by affidavit. 10. Prosecuting and defending as poor persons. — An ap- plication for leave to prosecute or defend as a poor person must be presented by petition. Gode Civ. Pro. §§ 458 to 464. 11. Change of name — The application of a natural person to change his name must be made by petition to the court ; Gode Giv. Pro. § 2410 ; and a like application by a corporation must be made by petition. Gode Giv. Pro. § 2411. 12. Insolvent debtor — The application of an insolvent debtor to be discharged from his debts must be made by peti- tion. Code Civ. Pro. §§ 2150, 2151. 13. Discovery ; necessity of petition To secure an order for discovery of books and papers under Code Civ. Pro. §§803 to 809, a written petition must be presented which must be COMMON FORMS. 435 Petitions. verified by affidavit. Code Civ. Pro. § 805. The petition must contain the matter specified in Sule 15, Gen. Hules of Prac. 14. A subpoena to a witness under a deposition, issued by a court without the State to take testimony within the State to be used without the State, should be issued only on an appli- cation made by a petitioner ; Code Civ. Pro. § 915 ; such a petition must contain the matter specified in Pule 17, Q-en. Rules of Prac. 15. Proceedings to sell, mortgage or lease real estate belonging to an incompetent are begun by petition ; Rule 55, Gen. Rules of Prao. ; and the payment over of any money arising upon such sale must be authorized by an order founded upon a separate petition. Rule 59, Oen. Rules of Prac. 16. Infants. — Maintenance and allowance to infants may be provided for in a proceeding begun by petition. Matter of Bostwich, 4 Johns. Oh. 100. 17. Orders granted on petitions or relating tliereto shall refer to such petitions by the names and descriptions of the petitioners and the date of the petition, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Rule 27, Oen. Rules of Prac. 18. BUI in equity as petition. — " When a private party has a case, which he is advised is redressible only by an appli- cation to a court of equity, he commences his suit by preferring to the court, having jurisdiction, a written statement of his case, which is called a bill in chancery, or a bill in equity." 19. An ancillary proceeding in an equity suit to recover costs, where an execution therefor has been returned unsatis- fied, may properly be begun by petition in the original suit. Maitlcmd v. Gibson, 79 Fed. 136. 436 Bradbury's Lansing's forms and practice. Petitions. 20. Recital of jurisdictional facts in petition. — In the absence of fraud or collusion, the jurisdiction of a surrogate is conclusively established by an allegation of the jurisdic- tional facts contained in a written petition or answer duly veri- fied, used in the surrogate's court. Code Civ. Pro. § 2473. 21. Docketing judgment or order founded on petition. — Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of the party inter- ested, be enrolled and docketed as other judgments. Rule 27, Gen. Rules of Prao. This rule is held to refer to orders or judgments where the application could be made only on peti- tion, and does not relate in any way to orders entered upon decisions in ordinary motions. It was therefore held that it was improper to enter a judgment made upon the decision of a contested motion by which the claims of attorneys for serv- ices rendered to a party to the action were adjusted. Myer v. Ahlett, 20 App. Div. 390 ; 46 Supp. 822. Form No. 391. Petition— General Form. {Tf the petition is made in an action, insert here the title of the court and of the action, as to which see subdivisions " Cap- tions," p. 243, and " Iitdoesements," p. 295. If in a special proceeding, see Forms JV^os. 166 and 167, p. 245.) To THE SiTPEEME {or other) Court of the State of New York : The petitioner, A. B., by this petition, respectfully shows to the Court : First : — {Here set forth any matter pertaining to the appli- cation.) Wherefore your petitioner prays, etc. Dated this day of 19 — . A. B. COMMON FORMS. 437 Petitions. State of New Yoek, County of '" ^^• A. B., being duly sworn, deposes and says that he is the pe- titioner mentioned in and who subscribed the foregoing peti- tion ; that said petition is true of his own knowledge except as to the matters which are therein stated to be alleged on in- formation and belief, and that as to those matters he believes it to be true. Sworn to before me, etc. A. B. Form ]Vo. 392. Petition in Action in Federal Court.i [Titles of two suits in which the petition was 'made.] Now comes The Cedar Valley Land and Cattle Company, Limited, a party to the above-mentioned suits, and petitions the court to enter an order or decree in each of said cases showing that the matters in controversy therein have all been settled and compromised by the parties and are decreed and adjudged to be finally settled, and ordering that all the said cases be dismissed, the plaintiff in each to pay costs therein, and the sureties on the injunction bond given by this petitioner be discharged. 1 The foregoing petition was acted upon in the case of Coburn v. The Cedar Valley Land and Cattle Co., Lim. (138 U. S. 196), in which case a compromise had been made, which the plaintiff alleged was a release of all claims against him by the defendant, as well as a release of all claims which the plaintiff had against the defendant, which contention the de- fendant denied. A petition was thereupon filed in the action asking to have it decreed that the release compromised all claims of the defendant against the plaintiff. The court acted upon this petition, and entered such a decree. The Supreme Court said, in effect, that while the matter was not properly one to be brought before the court by petition, still, inasmuch as the defendant had answered the petition and tried the question on its merits, it was too late on appeal to object that the court did not have power to thus act upon the petition. 438 Bradbury's Lansing's forms and pbactice. Publication. And in support of this application the petitioner files here- with true copies of the written correspondence between the parties, embodying their agreement of compromise, and on the hearing of this petition will produce the originals thereof ; also affidavit of George Dixon Fisher. \The correspondence ietween the parties was fully set forth as an exhibit to the petition.] XXII. Publication. FORMS. NO. PAGE. 293. Affidavit of publication 453 294. Affidavit of publication under foreclosure by advertisement. . . . 454 1. An affidavit to secure an order for the pnblication^ of a summons is insufficient which merely states that the de- fendant is a nonresident of the State, and that the plaintiff will be unable with due diligence to make personal service of the summons within the State, without showing that efforts have been made to serve tlie summons within the State and setting forth facts indicating that further efforts in the same direction will be unavailing. This is particularly true where the defendant lives in a nearby city in an adjoining State, and it is reasonable to assume that he transacts business or makes frequent visits to the city in which the court is located out of which the summons is issued. Kennedy v. Lanib, 182 N. Y. 228. 2. Publishing of a summons for "not less than once a week for six successive weeks," requires that the sum- mons should be published six times in six different successive weeks, but the publication is not complete until forty -two days after the first publication, and so the time of the defendant to answer, in an action in the Supreme Court, where the summons 1 See title Service op Summons, pp. 116 et seq. COMMON FOEMS. 439 Publication. is served by publication, does not expire until sixty-two days after the first publication, under Code Civ. Pro. §§ 4A0, 441 and Y8Y. MarTcet Nat. Bh. v. Pacific Nat. Bh., 89 IST. Y. 398 ; Watet^s V. Waters, 7 Misc. 519 ; 27 Supp. 1004. 3. For the purpose of reckoning the time within whicli the defendant must appear or answer, service by publica- tion is complete upon the day of the last publication pursuant to the order ; and service made without the State is complete upon the expiration thereafter of a time equal to that pre- scribed for publication. Code Civ. Pro. § 441. 4. The day of the last publication has been held in the case of a summons to be the forty-second day after the first publication, and somewhat the same rule has been applied in the publication of tax sales where the statute required that the publication should be " for the space of ten weeks." Wood V. Knapp, 100 N". T. 109. In the last mentioned case, the tenth publication was on the first day of the tenth week, and the court remarks : " This publication covered the whole of the tenth week as much as any prior publication covered the week intervening between the several publications, and would necessarily complete the publication for the full period of ten weeks." "While the Code speaks of the publication once a week for six successive weeks, the cases hold that six full weeks must have elapsed after the first publication before the service is complete, and careful practitioners therefore sometimes pub- lish the summons seven times to insure a strict compliance with the statute, particularly if it is necessary to publish it in two different weekly newspapers, both of which are not pub- lished on the same day. If, for example, the last publication is on the thirty-fifth day after the first publication, including both days, the service is void and does not give the court ju- risdiction. Waters v. Waters, 7 Misc. 619 ; 27 Supp. 1004. 5. The service of a citation in a surrogate's court, un- der Code Civ. Pro. % 2534, by publication is not complete until 440 Bradbury's Lansing's forms and practice. Publication. the expiration of at least six full weeks from the time of the first publication. Matter of Koch, 12 Supp. 94 ; 19 Civ. Pro. E. 165. 6. "The omission to publish once a week for six suc- cessive weeks is not a mere irregularity. — The court gets no jurisdiction over the person of the defendant unless the statute in this respect is conformed to. The proceedings to procure service by publication are jurisdictional facts; the court can amend any proceedings after the service is complete and jurisdiction is obtained, but cannot amend any of the pro- ceedings necessary to confer jurisdiction upon the court. The provision of the statute must be strictly pursued and fully complied with to confer jurisdiction." Waters v. Waters, 7 Misc. 519 ; 27 Supp. 1004 ; Hallett v. Eighters, 13 How. Pr. 43. Where, however, judgment has been entered, after the service is complete, but before the time to answer has expired, this is a mere irregularity which may be corrected ; but if publication has not been made so as to complete the service then the judgment is entirely void. Waters v. Waters, 7 Misc. 519 ; 27 Supp. 1004 ; ffallett v. Bighters, 13 How. Pr. 43. 7. Amendment of summons during publication. — "Where, after a summons had been published four weeks, it was discov- ered that it required the defendant to answer in six days in- stead of ten days as the statute provided, and an order was entered amending the summons, after which the publication of the summons, as amended, was continued for the remainder of the statutory period, it was held that this action was within the power of the court and that jurisdiction was acquired. Deimel v. Soheveland, 16 Daly, 34 ; 9 Supp. 482. 8. A summons may be amended nunc pro tunc alter publication, so as to be returnable in ten instead of six days. Grihlon v. Freel, 93 N. T. 93. 9. Death of party pending publication. — The death of a party plaintifif after the publication has been begun, but be- COMMON FORMS. 441 Publication. fore it has been completed, acts as a suspension of the actioa until the successor of the plaintiff has been appointed, and renders the order of publication inoperative. Paget v. Pease, 6 Supp. 386 ; 23 Abb. K C. 290 ; aff'g 2 Supp. 335. 10. Death of plaintiff "Where the service of the sum- mons is commenced by publication, and the plaintiff dies be- fore the publication is completed, the continuance of the pub- lication without regard to the plaintiff's death does not complete the service, so as to authorize a revival of the action by plain- tiff's personal representative. Beilly v. Jffart, 55 Hun, 465 ; 8 Supp. 717 ; aff'd 130 N. Y. 625. 11. Death of defendant. — If, after the commencement of the publication of a summons, the defendant dies before the service is made complete by the continuance of the publica- tion for the required period, the attachment falls and there is no way in which the service can be completed. Barron v. Saw kill Co., 18 Abb. N. C. 352. 12. Publishing a summons a longer time than required by the statute does not have the effect of giving the defendant a longer time to appear in an action than he would have had if the summons had only been published the statutory period. Anderson v. Goff, 72 Cal. 65. 13. If the last day to serve the summons or commence its publication falls on Sunday, it may properly be served the next day. OrMon v. Freel, 93 JST. Y. 93. 14. Domicile of infants — The place of residence of the mother, having the care and custody of a child, may be re- garded as the place of residence of the child under a statute relating to publication against infant nonresidents. Banks v. Burton, 6 Civ. Pro. R 216. 15, Sale under execution ; time of publication.— The re- quirements of Code Civ. Pro. § 1134, that a notice of sale of 442 Bradbury's Lansing's forms and practice. Publication. real property under an execution must be published " at least once in each of the six weeks immediately preceding the sale," means that the notice shall be published once in each of the successive six weeks immediately preceding the sale, but does not necessarily mean that six full weeks, or forty-two days, shall intervene between the time of the first publication and the sale. Wood v. Morehouse, 45 N. T. 368 ; Olcott v. Bobinson, 21 N. Y. 150. It will thus be observed that tlie rule as to pub- lishing a notice of sale under an execution is not the same as that applied to the publishing of a summons to begin an ac- tion, as in the case of a summons forty-two full days must elapse after the first publication before the service is deemed complete. Market Nat. Bh. v. Pacific Nat. Bk., 89 N. Y. 398. The sheriff can sell only on the execution under which he has advertised, and cannot sell under an execution subsequently re- ceived by him. Yan Camp v. Searle, 147 N. Y. 150. 16. Immediately preceding. — "Where a statute requires a publication to be made a certain number of days or weeks im- mediately preceding the sale, or other event as to which the notice relates, it does not necessarily mean that the sale shall be held on the very day of the last publication, but one or sometimes two days may intervene between such publication and the sale. Ohamherlain v. Derwpsey, 22 How. Pr. 356 ; Golman v. Shattuck, 62 N. Y. 348 ; Howard v. Hatch, 29 Barb. 297 ; WoodY. Knapp, 100 N. Y. 109. 17.' Postponement of sale ; additional advertising ex- pense. — One who procures a temporary injunction against the sale of property already advertised, under execution, un- til the further order of the court, is chargeable with the ex- pense of postponing the sale and continuing the advertisement, when such continuance is necessary to the protection of the sheriff or the judgment creditor. Vam, Oelder v. Van Oelder, 26 Hun, 356. COMMON FORMS. 443 Publication. 18. Publishing orders in an action brought for the col- lective benefit of creditors. — In an action brought for the collective benefit of the creditors of a person or of an estate, or for the benefit of a person or persons other than the plain- tiff, who will come in and contribute to the expense of the ac- tion, notice of a direction of the court contained in a judgment or order requiring the creditors or other person or persons to exhibit their demands or otherwise to come in, must be pub- lished once in each week for at least three successive weeks, and as much longer as the court directs, in the newspaper pub- lished at Albany in which legal notices are required to be pub- lished, and in a newspaper published in the county where the act is required to be done. Code Civ. Pro. § 786. As to pub- lication in Albany, however, see L. 1884, c. 133. 19. A creditor's action to set aside an assignment made by a deceased person, under Personal Prop. L. % T, binds only the creditors made parties, unless a notice to other cred- itors is published pursuant to Code Civ. Pro. § 786. Matter of Thoesen cfc Bro., 62 App. Div. 87 ; 70 Supp. 924. After such publication, however, all creditors of the assigned estate are bound by the decree, although they may not have had actual notice of the action ; nor is it the duty of the assignee having knowledge of a claim which has not been proved to give no- tice to the creditor in whose favor it exists. Ke7'r v. BLodgett, 48 K Y. 62. The creditor in default may have the judgment opened to let him in if he applies before the distribution under the decree is made. Downey v. May, 8 St. E.. 481 ; 19 Abb. K 0. 177. Section 786 does not apply, however, to an ac- tion by a surety of the assignee to compel an accounting. SohueUe v. Peiman, 86 ¥. T. 270. 20. A calendar day includes the time from midnight to midnight. Stat. Constr. L. § 27. 21. In computing any specified number of days, weeks or months from a specified event, the day upon which the 444 Bradbury's Lansing's forms and practice. Publication. event happens is deerned the day from which the reckoning is made. The day from Avhich any specified number of days, weeks or months is reckoned shall be excluded in making the reckoning. Stat. Constr. L. % 27. 22. A certain number of days. — The statutes are not uniform in their requirements as to publishing a notice a cer- tain number of days before the event is to happen as to which the notice relates, and in each of these cases the language of the statute itself must be considered according to the ordinary meaning of the language used. Of course, if a statute spe- cifically requires a notice to be published a certain number of consecutive dajj^s, the meaning is plain. It should be remem- bered, however, that under such a statute Saturday and Mon- day are usually consecutive days, and Sunday is not to be taken into account. Matter of Fiske, 72 Cal. 125. "Where the stat- ute requires that a notice of ten days shall be given by pub- lishing the same in a newspaper, etc., this usually implies one publication ten days before the event. It has been held under a statute requiring publication for at least thirty days before the day of sale, that such statute was complied with by publi- cation in fi.ve consecutive issues of a weekly paper. Nebraska Land, etc., Co. v. McKinley-Lanning, etc., Co., 52 Neb. 410. A number of days specified as a period, from a certain day within which or after or before which an act is authorized or required to be done, means such number of calendar days, ex- clusive of the calendar day from which the reckoning is made. Sunday or a public holiday, other than a half holiday, must be excluded from the reckoning, if it is the last day, or an intervening period of any such two days. Stat. Constr. L. §27. 23. Daily, Sunday excepted. — "Where a statute required a notice to be published daily, Sundays excepted, for ten days, and the notice was printed eight out of ten consecutive days, and the two remaining days were not both Sunday, but on one of said days, no paper was issued,, it was held that the COMMON FORMS. 445 Publication. publication was insufiBcient and void. Haskell v. Bartlett, 34 Oal. 281. It has been Jield that a publication beginning on Wednesday and continuing to and including Sunday following, was insuf- ficient under a statute which directed that notice should be published daily for five days, Sunday excepted. Alameda Macadamizing Co. v. Suff, 57 Cal. 331. 24. Saturday and Monday successive days. — Usually un- der a statute requiring publication for a certain number of suc- cessive days, it is held that Monday must be considered as a successive day to Saturday. McChesney v. Bell, 145 111. 614; Matte?' of Fiske, 72 Cal. 125. 25. Sunday.— Publication in a Sunday newspaper does not as a rule constitute legal notice. Sohwed-y. Hartwitz, 23 Colo. 187 ; Sawyer v. Cargile, 72 Ga. 290. "Where a publication for thirty days is required, the omis- sion of Sunday will not vitiate the notice. Kellogg v. Car- rico, 47 Mo. 157. 26. Holiday. — It has been held that a publication on Me- morial Day, which was made a legal holiday by statute, was valid. Malmgren v. Phinney, 50 Minn. 457. 27. The period of publication of a legal notice in an ac- tion or special proceeding brought in a court either of record or not of record, or before the judge of such a court, must be computed so as to exclude the first day of publication, and include the day on which the act or event of which notice is given is to happen, or which completes the full period of pubr lication. Code Civ. Pro. § 787. 28. A week is a distinct period, commencing Saturday night at twelve o'clock and ending the following Saturday night at the same hour. Steinle v. Bell, 12 Abb. Pr. (E. S.) 171. 446 Bradbury's Lansing's forms and practice. Publication. 29. A certain number of weeks. — Statutes sometimes re- quire a publication to be made a certain number of weeks be- fore the event as to which the publication relates, and it is usually held under such statutes that a publication once in each week during the number of weeks specified is a sufficient compliance with the statute. 111. 'Watch Go. v. Nat. Mfg. Co., 63 111. App. 480 ; Davis v. Houston, 15 Neb. 28 ; Pierce v. Butters, 21 Kan. 102; Bogarth v. McQ-illicuddy, 19 Ind. App. 26. 30. Splitting week ; compnting time. — There seems to be some confusion in cases as to when a sale may be made, or other act may be done, after the publication of a notice twice in each week for three successive weeks, or under a statute with analogous provisions. While the service of a summons is not complete by publication until forty-two days have elapsed since the first publication {Market Nat. Bk. v. Pacific Nat. Bk., 89 N. Y. 399), the same rule is not followed in the case of a sale of real estate, after a publication of the notice of sale. In the case of a sale, it is not necessary that forty-two days should have elapsed between the time of the first publication and the actual sale, under a statute which requires notice to be published once in each week for six suc- cessive weeks immediately preceding the sale, but the sale may be made on the thirty-sixth day after the first publica- tion, provided the notice is published once each in six dif- ferent weeks. Wood v. Morehouse, 45 IS. T. 368. . A week is not defined in the statutes, and the question therefore arises whether or not a publication begun, for example, on Wednes- day and continued thereafter on each Monday and Wednesday until a time equal to three weeks had expired from the first publication on Wednesday, making in all six publications, would comply with the statute requiring publication twice in each Aveek for three successive weeks. It has been held that a week is a distinct period of time, commencing Satur- day night at twelve o'clock and ending the following Saturday night at the same hour. Steinle v. BeU,-12 Abb. Pr. {N. S.) COMMON FORMS. 447 Publication. 171. Under this rule, therefore, it would be improper to split a week so as to have it include the time between one Wednes- day and the next one. Under the same rule, a publication in three different weeks made as above described would not com- ply with the statute. Although this question does not seem to have been directly determined, the conclusion seems inevita- ble that the publication must be twice in each week, beginning at twelve o'clock on Saturday night and ending at twelve o'clock the following Saturday night. Under this same con- struction, and the rule laid down in Wood v. Morehouse, 45 N. T. 368, and Wood v. Knapp, 100 N. Y. 109, a statute re- quiring publication twice in each week for three successive weeks, as a notice of sale, would be complied with by a publi- cation, for example, on Monday and Wednesday in each of three weeks, to be followed by the sale on the Wednesday of the last publication, although only sixteen days (excluding the first) would elapse from the first to the last publication. 31. A month means a calendar, and not a lunar month. Stat Constr. L. % 26. 32. Conflict between Code and other statutes. — Any spe- cial provision of a statute which is not specifically repealed by the Code still remains in effect, and publication may be made in accordance therewith. Code Civ. Pro. § 3340. 33. Code provisions as to time of publication — The fol- lowing are the provisions of the different sections of the New York Code of Civil Procedure specifying the periods of time of publications thereunder : " Once in each weelc, for at least three successive weeJcs." — Notice to creditors to present their claims in an action brought by one on behalf of himself and others. Code Civ. Fro. § 786. " Once a week, for not more than three weeksP — Publication of notice to discharge judgment where the judgment debtor has been discharged in bankruptcy. Code Civ. Pro. § 1268, 448 Bradbury's Lansing's forms and practice. Publication. " Once in each, of the six weeks imtnediately preceding a sale.'''' — Sale of real property under an execution. Code Civ. Pro. % 1434. " Once in each week, for six successive weeks." — ^Ref area's notice in partition suit. Code Civ. Pro. § 1562. " Once in each week for the four weeks immediately preced- ing the application.''^ — Application for order for disposition of moneys in partition suit. Code Civ. Pro. § 1564. " Once in each week, for six successive weeks.'" — Notice to unknown and absent owners in action for partition. Code Civ. Pro. % 1582. " At least twice in each week, for three successive weeks.'" — Sale of real property in equity action. Code Civ. Pro. § 1678. " Once in each of the six weeks, immediately preceding the sale." (In weekly paper.) — Sale of real property in equity action. Code Civ. Pro. % 1678. "For four weeJcs." — Judgment annulling a corporation. Code Civ. Pro. % 1803. " At least once in each week, for twelve successive weeks." — Actions on behalf of the State to recover real property by escheat. Code Civ. Pro. § 1978. " Once in each week, for at least three sxiccessive weeks." — Notice of execution of writ for the assessment of damages. Code Civ. Pro. § 2108. " J[Z least once in each week, for three successive weeks." — Notice of confirmation of execution of a writ for the assess- ment of damages. Code Civ. Pro. § 2112. " At least once in each of ten weeks immediately preceding the day on which cause is to he shoiun." — Application of an insolvent for his discharge. Code Civ. Pro. § 2165. " At least once m each of twelve weeks immediately preceding the day of sale." — Foreclosure by advertisement. Code Civ. Pro. § 2888. " At least once in each week." — Postponement of sale under foreclosure by advertisement. Code Civ. Pro. § 2892. " Once in each week, for six successive weeks." — Notice of change of name of corporation. Code Civ. Pro. § 2413. COMMON FORMS. 449 Publication. " Once in each week, for four successive weeks." — Order changing the name of a corporation. Code Civ. Pro. § 2414. "At least once in each of the three weeTcs immediately pre- ceding the time fixed therein for showing cause.'''' — Order to show cause why a corporation should not be dissolved. Code Civ. Pro. % 2424. " For three successive weeks." — Notice of decree of revoca- tion of probate of wilL Code Civ. Pro. § 2653. " Twice a week, for four weeks." — Notice by a,dministrator to creditors for the purpose of fixing the penalty in a bond. Code Civ. Pro. § 2664. " Once in each week, for three months." — Notice to persons claiming a right to administer on the estate of a decedent to show cause why the county treasurer should not be appointed. Code Civ. Pro. §2666. " Once a week, for three weeks." — Account of county treas- urer when appointed administrator. Code Civ. Pro. % 2668. " Once in each week, for six months." — Notice by executor or administrator to creditors to present their claims. Code Civ. Pro. % 2718. 34. Definition of newspaper. — A paper devoted princi- pally to financial and mercantile affairs, but which contains a number of advertisements, together with local and general news and principally a subscription circular, is a newspaper within the meaning of the New York Statutes. Williams v. Colwell, 18 Misc. 399 ; 43 Supp. 720 ; aff'd 14 A. D. 26 ; 43 Supp. 1167. The foregoing case contains a very complete discussion of the subject, and reviews many cases both in New York and other States in which the subject is discussed. 35. Supplement. — Publication in a supplement of a news- paper is sufficient if the supplement circulates as extensively as the remainder of the paper. Lent v. Tillson, 72 Cal. 404 ; Zahradnicek v. SeTby, 15 Neb. 579. Vol. 1—29 450 Bradbury's Lansing's forms and practice. Publication. 36. A publication must be in the paper designated in the order, and if published in any other paper it will be of no effect. Brisbane v. Peabody, 3 How. Pr. 109. 37. Slight yariation between the actual name of the paper and the name appearing in the order of publication will be dis- regarded. Soule V. Chase, 1 Abb. Pr. (N. S.) 48. Publication in the " Buffalo Daily Transcript " was held to comply with an order to publish in the " Daily Transcript," where it appeared that there was no other paper of a similar name in the city. Waters v. Waters, 7 Misc. 519 ; 27 Supp. 1004. 38. Paper most likely to give notice. — If the statute re- quires the publication to be in a paper most likely to give no- tice to the person whom notice is addressed, the usual rule is that the court making the order of pubhcation has discretion as to the paper in which it will order the notice to be pub- lished, and may even order it published in a paper in another State, if not prohibited by the terms of the statute. MoUey V. Leophart, 4Y Ala. 257. Or in a paper published in the Ger- man language. Wdkeley v. Nicholas, 16 Wis. 588. Or in a county other than that in which the proceedings were had. Coomls V. Crabtree, 105 Mo. 292. 39. Sunday paper; contracts with. — All contracts or agreements of any nature made with the publisher or pro- prietor of any paper dated, pubhshed or issued on the first day of the week shall be as valid, legal and binding as con- tracts made with newspapers dated or published on any other day of the week, L. 1871, c. 702. 40. "No newspaper published in county." — If there is no newspaper published in the county where a publication is ordered to be made, it may be made in a newspaper pubhshed in an adjoining county. Code Civ. Pro. % 826. COMMON rORMS. 451 Publication. 4:1. If the publication is in two newspapers it is not necessary that it should proceed concurrently in both of them, but publication may be made on different days in the same week. Herbert v. Smith, 6 Lans. 493. 42. Publication on the same day in each week. — It is not necessary that the publication should be on the same day in each of the successive weeks, so long as it appears once in each week. Wood v. Kncupp, 100 N. Y. 109. 43. Legal fees for publishing summons. — Unless a special contract is made for publishing a summons or other legal no- tice, only the fees specified in the statute can be charged, and if the publisher refuses to make the affidavit of service be- cause of the refusal of the plaintiff to pay more than the legal fees, the plaintiff can secure proof of publication by taking the deposition of the publisher under Code Civ. Pro. § 885. Merle v. Krebs, 50 App. Div. 450 ; 64 Supp. 246. Except as otherwise specially prescribed by law, the pro- prietor of a newspaper is entitled, for publishing summons, notice, order, citation or other advertisement required by law to be published, other than the session laws, for each folio, to seventy-five cents for the first insertion and fifty cents for each subsequent insertion. In counties containing whoUy or par- tially cities of the first class, the proprietor of a newspaper is entitled for publishing such notices, matters and advertise- ments aforesaid, other than the session laws for each folio, to one dollar for the first insertion and seventy-five cents for each subsequent insertion . The compensation for publishing the ses- sion laws must be fixed by the board of supervisors at not more than fifty cents for each folio. Code Civ. Pro. § 3317. If the proprietor of each newspaper published in a city or county in which any notice, order, citation or other paper is required by law to be published, refuses to publish the same for the fees prescribed by law for the publication, it may be published in the newspaper, printed at Albany, in which legal notices are required by law to be published. If it is required 452 BRADBURY'S LANSING'S FORMS AND PRACTICE. Publication. by law to be published in that newspaper, and also in another newspaper published in a city or county, and the proprietor of each newspaper in that city or county refuses to publish it for the fees so prescribed, it may be published in the newspaper published nearest to the place where a person is required to appear, or where an act is to be done, pursuant thereto, the proprietor of which will publish the same for those fees. Pub- lication, made as prescribed in this section, is as valid as if it were made in the city or county where the publication thereof is so required by law. Code Civ. Pro. § 3293. "Where publication is made, as prescribed in the last section, elsewhere than in the city or county where it is otherwise re- quired by law to be made, the affidavit of publication must either be accompanied with an affidavit, or contain a statement, to the effect that an application to publish the advertisement was, before such publication, made to the proprietor of each newspaper published in the city or county ; that the amount of the legal fees for such publication was at the same time tendered ; and that the application was refused. Such an af- fidavit is presumptive evidence of the fact stated therein. Code Civ. Pro. % 3294. 44. Compelling publisher to make affidavit of publication. — If a publisher refuses to make an affidavit as to the publica- tion of a summons, the proper method to secure the affidavit is under Code Civ. Pro. % 885, which provides for the taking of the deposition of a witness to be used on a motion. Eberle V. Krebs, 50 App. Div. 450 ; 64 Supp. 246. 45. The expenses of publication may be taxed as a dis- bursement in the action or proceeding in which they are made. Code Oa). Pro. § 3256. 46. Proof of publication ' for " six successive weeks " does not show publication to have been made " once in each week " 1 See form No. 293, p. 453, for proof of publication generally. See also form No. 95, p. 156. COMMON FOBMS. 453 Publication. for the period named. Godfrey v. Valentine, 39 Minn. 336 ; Bigelow v. CJiattsrton, 51 Fed. 614. 47. Filing affidavit of publication nunc pro tunc. — If there are no intervening rights affected thereby it has been held that a proper affidavit of publication might be filed oiuno pro tunc. Howard Y. McOhesnsy, 103 Cal. 536; Burr v. Seymour, AS) Minn. 401. 48. An affidavit by an " editor " of a paper where the statute required it to be made by " the printer or his foreman or his principal clerk," was held sufficient. Pennoyer v. JV^eff, 95 U. S. 714. 49. " Manager " is synonymous with publisher or foreman. Waters v. Waters, 7 Misc. 519 ; 27 Supp. 1,004. 50. " Proprietor " of a county paper has been held to be synonymous with publisher. Palmer v. McOormick, 28 Fed. 541. Form No. 393. Affidavit of Publication. (Code Civ. Pro. § 444.) [Title of action or proceeding.] State of New Toek, | . County of \ A. B., being duly sworn deposes and says that he is the printer {or publisher, or foreman, or principal clerk of the printer, or publisher) of the , a newspaper published in the city {or town) of , county of — and State of New York, and that the annexed summons and notice 454 Bradbury's Lansing's forms and practice. Publication. subjoined thereto has been published in said newspaper once a week for six successive weeks on the following days : (Here insert the date of each publication)} Sworn to before me, etc. {^Annsx copy of summons and notice as published.) Form No. 394. Affidavit of Publication under Foreclosure by Advertisement- (Code Civ. Pro. §2388.) State of New Yoek, ( County of j ®^- ' A. B., of the of county of and State of New York, being duly sworn, deposeth and saith that he is, and during the time of the publication of the notice here- inafter mentioned, was, the of the newspaper called the , a public newspaper, printed and published in the of , county of , that being the county where the premises described in the annexed printed notice of sale, or a part thereof, are situated. Deponent further says that the notice of the mortgage sale, of which a printed copy is hereto annexed, was published in said newspaper at least once in each of the twelve weeks immediately preceding the day of sale specified in said notice of sale ; said publication 1 It is not the universal practice in making an affidavit of publication to state the date of each publication, and in fact, the usual practice is to state the date of the first publication, or, the date of the first and last pub- lication, but certainly the safest way in all cases is to state each date on which the summons or notice was published. Form No. 95, on p. 156, follows many forms which have been used in actual practice, apparently without criticism, and there does not seem to be any decision holding that a statement such as contained in form No. 95 is defective. The above form may be used, with such variations as the different statutes require, in all cases where proof of publication is required, unless the statute under which the publication is made requires specific facts to be shown, in which case the statute must be followed. COMMON FOEMS. 455 Returns. having been commenced' on the day of 19 — and ending on the day of 19 — . Subscribed and sworn to before me, this day of 19—. XXIII. EETUENS. NO. FORMS. PAGE 295. Return of service of process 460 296. Return to writ of certiorari to review 461 297. Return to writ of habeas corpus to inquire into the clause of detention 462 298. Return to writ of certiorari to inquire into the cause of detention. . 464 1. A return, in practice, is a short account in writing, made by a sheriff or other ministerial officer, of the manner in which he has executed a writ or other process of the court. The term also includes the answer made by a defendant named in a State writ. This subdivision includes the general principles of law applicable to the subject, and returns to particular kinds of process and writs will be found under their respective titles. 2. It is the duty of the officer to return the process on the return day, as specified therein, or provided by statute, and on his neglecting to do so usually a return may be en- forced by summary order which the officer will be punished for contempt for disobeying. The officer is also liable to cer- tain penalties hereinafter specified for failure to make proper and timely returns to process placed in his hands for execu- tion. 3. Returns to state writs must be made by the defendants named therein under the regulations specified in the Code of Civil Procedure. 1 See note to form No. 293. 456 Bradbury's Lansing's forms and practice. Returns. 4. Verification of return. — A return to a writ need not be verified, unless specially required by statute. Code Civ. Pro. §§ 2026, 2014, 2077, 2080, 2098 and 2134. 5. A defendant must sign the return to a State writ, even though he appears by attorney. Code Civ. Pro. § 1995. 6. At common law, it seems, "it was not usual to put the sheriff's name to returns ; for, when a writ was returned, it was intended to be by the officer of the court, whose duty it was to make it ; and for this reason it was held that such omission was not erroneous." Dewwr v. Spence, 2 "Wheaton, 211. 7. Omission of signature an amendable defect. — Where the sheriff did not sign his name to his return of a summons in partition, it was held not to be a cause for reversing a judg- ment by default. Dewar v. Spence, 2 Wheaton, 211. 8. Imperfect return cured by verdict. — A verdict cures, among other defects, an imperfect or insufficient return of a sheriff or other officer, or a return actually made by an officer, but not subscribed by him. Code Civ. Pro. § 721, sub. div. 3. 9. Omitting tlie venue. — Where the sheriff, in a return to a summons, the case being one in a court of general jurisdic- tion, omitted to state that the service was made in his own county, it was presumed that service was made in the proper county. KnowlesY. Gaslight & Coke Co., 19 Wallace, 58. 10. Further return. — A further return to a writ of certi- orari cannot be compelled unless the return is defective in that it does not comply with the writ. People ex rel. Meehan v. Greene, 103 App. Div. 393 ; 92 Supp. 1112. 11. Limiting time of return. — Although an execution ought to state the time within which it is returnable, a defect COMMON FORMS. 457 Returns. in this respect is a mere irregularity. Douglas v. Haherstro, 88 K Y. 611. 12. A former sheriff must return in his own name each mandate which he has fully executed, although a uew sheriff has been chosen. Code Civ. Pro. % 186. 13. The fees for making a return are those specified in Code Civ. Fro. §2135. People ex rel. S-utliffv. Fulton County Supervisors, 64 Hun, 375 ; 19 Supp. 773. 14. The return to a writ of certiorari cannot be read into a commitment for criminal contempt to sustain a com- mitment which is not sufficient on its face. People ex rel. Palmieri v. Marean, 86 App. Div. 278 ; 83 Supp. 843. 15. Making a return to a state writ is not an oiiicial act which a board of supervisors is compelled to do without fee under § 3280 of the Code of Civil Procedure, but such board is a person within the meaning of Code Cim. Pro. § 2005 and is entitled to the fees specified in Code Civ. Pro. % 2135. People ex rel. Sutliff v. Fulton Co. Supervisors, 64 Hun, 375 ; 19 Supp. 773. 16. Only jurisdictional facts. — The return to a writ of habeas corpus need show only jurisdictional facts where the person sought to be released is held under a judgment of con- viction after a trial, and should not set forth the evidence. People ex rel. Dcmsiger v. Protestant Episcopal House of Mercy, 128 N. T. 180. 17. Must file undertaking. — With the return to the war- rant or writ of habeas corpus, in proceedings to punish- civil contempts, the sheriff must file the undertaking, if any, taken by him. Code Oai. Pro. § 2279. 18. An order to show cause why a mandamus should not issue cannot take tte place of the mandamus itself, 458 Bradbury's Lansing's forms and practice. Returns. and therefore can be made returnable in less than twenty days. People ex rel. Grouse v. Fulton Co. Supervisors, 10 Hun, 560 ; 24 Supp. 397 ; Aff'd 139 JST, Y. 656. 19. Officers securing extensions. — Sheriffs, constables and marshals act at their peril if they obtain an extension of an execution, unless the party in whose interest it is issued so di- rects, and it was therefore held, where a sheriff was sued for not returning an execution, that it was no defense that he had received warrants of attachment against the plaintiff and had served them upon the judgment debtors. McGuire v. Bausher, 52 App, Div. 276 ; 65 Supp. 382 ; Wehle v. Conner, 63 IsT. Y. 258. 20. Deputy sheriff's return conclusiye as against slier- iff. — In an action between one of the parties to an execution and the sheriff, the deputy sheriff's return to the execution was, as to the amount, held conclusive ; and the admission of evidence given by the deputy impeaching the truth of the re- turn was deemed to constitute reversible error. Sheldon v. Payne, 7 IST. Y. 453. 21. A constable need not indorse the action taken by him on an execution which is properly returned to the justice who issued it, under Code Ow. Pro. § 3031 ; Hunt v. Barry, 6 Supp. 568. 22. A constable is absolutely liable for the amount of a money judgment upon failure to return an execution, or for the value of the chattel, if a chattel, and cannot invoke the rule applicable to sheriffs, who are liable to the aggrieved party only for the damages actually suffered. Code Civ. Pro. §§ 102, 3039 ; Rutzkowski v. George, 92 Hun, 412 ; 36 Supp. 762. 23. It is from the date of the return of the execution, in supplementary proceedings, that the ten years begin to run, COMMON FORMS. 459 Returns. which are given by the Code to a creditor to obtain an order compelling the judgment debtor, or a third party having prop- erty of the judgment debtor, to be examined. Peck v. Disken, 41 Misc. 4Y3 ; 84 Supp. 1094. 24. Return of an attachment. — No return of an attach- ment can properly be made by the sheriff, unless it has been vacated or annulled, and therefore where a sheriff returned an attachment with an indorsement thereon, " Merged in judgment and execution," it was held to be of no effect, and was set aside by the court upon motion of parties who had an interest in keeping the attachment alive. Code Civ. Pro. § 712 ; TuGk v. Manning, 63 Hun, 345 ; 17 Supp. 915 ; atf'd 137 K Y. 630. 25. Objections to the legal sufficiency of the papers upon which an alternative writ of prohibition was granted, may be taken in the return. Code Civ. Pro. % 2097. 26. An alternative writ of prohibition becomes absolute unless a return is made, by the court or judge and by the party. Code Civ. Pro. § 2096. 27. A return of the inquisition and commission, in lu- nacy proceedings, must be made by the commissioners and filed with the clerk. Code Civ. Pro. % 2832. 28. Notifying jurors. — The sheriff must make a return to the clerk of the court after notifying jurors, which return must name each person notified and specify the manner in which he was notified. Code Civ. Pro. § 1048. 29. Collection of a line. — The return of a warrant for tlie collection of a fine must be made by the sheriff, with his pro- ceeding thereupon, at the term of the court ; or, where tlie fine was imposed, in any county except New York, by the Supreme Court, or the county court, at the term of the countv 460 Bradbury's Lansing's forms and practice. Returns. court, held next after the expiration of 60 days from the re- ceipt thereof. Code Cm. Pro. § 2297. 30. In certain marine cases, a return by the sheriff, of his proceedings, after serving the sammons and executing the order of arrest, must be made forthwith unless the court is not then in session or at chambers. Code Gvo. Pro. § 3184. 31. In proceedings to enforce liens on yessels, the sheriff, in his return, shall state whether he has seized the vessel by virtue of any other warrant than the one by virtue of which he is acting ; and if so, he shall give the details. Code Civ. Pro. % 3422. Form No. 395. Return of Service of Process ; Short Form, [Title.] I did, on the day of , 19 — , at ■ in the City of , County of ■ serve this (here in- sert name of writ) by delivering to and leaving with the within named (here insert name) a true copy thereof and by exhibiting and reading to him, the original writ. Dated this day of , 19 — . A. B., Sheriff of County, State of- . COMMON FORMS. 461 Iletums. Form ]Vo. 396. Beturn to Writ of Certiorari to Review.' SdPEEME CoUKT, OOTJNTY. The People of the State of New Toek on the Kelation of A. B., Eelator, V. 0. D., one of the Justices of the Supreme Court of the State of New York, Eespondent. I, C. D., a Justice of the Supreme Court, do make the fol- lowing return to a certain writ of certiorari, of which the an- nexed is a copy. On the day of ,19—, at Part —, of the Term in , A. B., the relator, appeared as counsel for the defendant in an action, the trial of which was then and there proceeding before me with a jury. A witness called by the plaintiff's counsel was then being examined on the direct, when Mr. A. B. interrupted the examination by a derisive comment upon what the witness had just said, being at the time on his feet. As reported by the stenographer and to the best of my re- collection the language of the counsel and witness above re- ferred to was as follows : (Here give the language used.) During the whole time after he was first directed to sit down, A. B.'s tone, air and bearing were flagrantly insolent, defiant and offensive toward the court and in connection with what he did and said, and refused to do, as above detailed, 1 This form is taken from People ex rel. Palmieri v. Marean 86 App. Div. 278; 83 Supp. 843; where it was held that the allegations made in the re- turn could not be read into the original commitment. The return itself appears to have been deemed to be sufficient. 462 BRADBURY'S LANSING's FORMS AND PRACTICE. Returns. tended directly to iaterrupt the proceedings of the court and to impair the respect due to its authority. Thereupon the court so determined and summarily adjudged him guilty of a criminal contempt and fined him $ — , and caused the following entry to be made on the minutes : (Here state the entry.) A. B. paid the fine to the clerk, saying that he paid under protest. I certify that the foregoing is a true copy and complete statement of the facts upon which said conviction was based, of the conviction itself, and of the record thereof then made. Dated, etc. C. B., Justice of the Supreme Court of the State of New York. Form INTo. 397. Return to a Writ of Habeas Corpus to Inquire into the Cause of Detention.! Supreme Court. City and County of New York. In the Matter of the Custody of A. B. To the Supreme Court of the State of New York : The return of the C. D. (an institution), Eespondent, to the foregoing writ, in compliance therewith, produces herewith the 1 The above return was held to be sufficient in People ex rel. Danziger V. Protestant Episcopal House of Mercy, 128 N. Y. 180. See Form No. 298, post. p. 464. COMMON FORMS. 463 Returns. body of A. B., the person named therein, and respectfully shows : I. That the said Respondent is a domestic corporation, duly incorporated, existing under and pursuant to the laws of the State of New York, and authorized by law to receive and hold children on final commitment. II. That the said Respondent had the said person in its custody when the said writ was served, and still has the said person therein, by virtue and authority of a mandate, a copy of which is hereto annexed, and which is made a part of this return. III. -That the facts alleged in said mandate to have been satisfactorily proved and which are therein set forth at length, are true causes of the detention of said person. Dated, New York, etc. CD. By E. F., Respondent. State of New Yoek, ) City of New Yoee, > ss. : County of New York ) E. F., being duly sworn, says that she is an officer, to wit : the of the respondent, which is a domestic corpora- tion, duly incorporated, existing under and pursuant to the Laws of this State ; that the foregoing Return is true to the knowledge of this deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, she believes it to be true. Sworn to, etc. E. F. 464 Bradbury's Lansing's forms and practice, Returns. Form No. 398. Return to Writ of Certiorari to Inquire into the Cause of Detention. SUPEEME OOUET. CiTT AND County of New York. In the Matter of the Custody 1 of !^ A. B. J The return of C. D., a Police Justice for the City of ISTew York, to the foregoing writ of certiorari, respectfully shows : I. That on the day of , 19 — , the person named in said writ, a female child, was duly brought before me for examination charged before me, upon the complaint under oath of E. F. II. That on said day of , 19 — , I exam- ined orally said complainant and the witnesses before me pro- duced in due form of law and also the said child, who was duly produced for my personal inspection, and that it then and there appeared and was conclusively proven to my satis- faction by competent testimony and evidence that the mate- rial allegations set forth and charged in said complaint were true, and that thereupon I did so adjudge and did commit said child by official commitment. III. That the testimony and evidence taken by me as afore- said was not reduced to writing except in so far as the same is contained in said complaint and the papers, of all which copies are hereto annexed and made a part of this return. lY. And I hereby certify further and at large that said complaint and said papers and said commitment are the true and complete record of said examination and adjudication, and contain a true statement of the age and cause of imprisonment of said child. That said commitment was made after due no- tice to the parents of the child of the hearing at which it COMMON FOEMS. 465 Stay of Proceedings. was made, and that the said parents were present thereat, and the object thereof was then and there by me to the said par- ents, fully explained. Dated, New York, etc. CD., Police Justice. XXIY. STAY Off PEOOEEDINGS. FORMS. so. PAGE. 299. Injunction order containing a stay of proceedings 478 300. Stay contained in order for a commission 479 301. Stay until after determination of an appeal in a similar action. . 480 302. Order denying a motion for a stay 480 1. A stay of proceedings is either an order of a court or judge, or a writ, or a certain state of facts, which suspends the progress of an action or special proceeding. A stay of pro- ceedings is usually temporary, but in rare instances, a perpet- ual stay will be granted. Among reasons /or granting a stay of proceedings are an appeal to an appellate court ; the nonpayment of the costs of a former action ; and the fact that another action is proceed- ing, the determination of which will decide all questions in- volved in the action stayed. A confliGt in legal decisions, or the uncertainty of the law on any question, however conflicting the former may be, and how- ever unsettled the latter, is no ground, it seems, for a stay of proceedings. Jenkms v. Baker, 91 App. Div. 400 ; 86 Supp. 958. A court of record will refuse to stay hy order a proceeding that is pending in another court of record, for an injunction is the remedy in such a case, where any remedy is proper. Deyo V. Morss, 38 St. Eep. 477 ; 14 Supp. 841. YoL. 1—30 466 bradbuey's Lansing's forms and practice. Stay of Proceedings. 2. A perpetual stay of execution ou a judgment is proper, in favor of a person who, having sued a sheriff, fails and is taxed in costs, and subsequently is discharged in bankruptcy, the costs obtained against him by the sheriff being among his debts provable in the bankruptcy proceedings. Oraliain v. Pierson, 6 Hill, 247. Where a perpetual stay is sought, and the party seeking the stay asserts that his opponent is not proceeding in absolute good faith, that full payment of all his demands has been ten- dered him, and that he bought the securities sued on solely for the purpose of bringing the action, still, a stay is not warranted. Ramsey v. The Erie RaiVuoay Qo., 8 Abbott Pr. (IST. S.) 174. 3. Power of court to grant stay. — It seems that the Su- preme Court " has always had power in its discretion to tem- porarily suspend the operation of its judgments, to correct mistakes in them, to vacate them for irregularity, or to stay proceedings on them for such time and on such terms as to the court may seem proper." Sponenhurgh v. City of Gloversville, 42 Misc. 563 ; 87 Supp. 602. Vexatious action. — It seems that the Supreme Court has in- herent power to stay a vexatious action, and this power " though seldom appealed to, has yet been exercised not infre- quently in this country and in England." Stewart v. Sutler, 27 Misc. 708 ; 59 Supp. 573. An order for inspection may contain a stay of all proceed- ings in the action until the order is complied with, or the hear- ing of the application. Rule 16, Gen. Rules of Prac. / Code Civ. Pro. % 805. Stay pending writ of error. — Where a motion for a stay is sought, pending the determination of a writ of error, and it appears that the writ of error is not brought in good faith, but for delay, the stay will be refused. Ames v. Wether's Execu- tors, 10 Wend. 624. Appeal hy executive city official acts as sta/y ex propria vigore. — Where the fire commissioner of New York City appeals from a mandamus, this is an appeal by the municipal corpora- COMMON FORMS. 467 Stay of Proceedings. tion within Code Civ. Pro. § 1314, and proceedings under the writ of mandamus are stayed by the notice of appeal itself. Matter of CroTcer v. Sturgis, 38 Misc. 596 ; 78 Supp. 77. At common law, it seems, a certiorari carried with it a stay as a matter of course, but the application of this principle caused some confusion in this State, to remedy which Code Civ. Pro. % 2131, was enacted. People ex rel. Crolcer v. Sturgis, 39 Misc. 448 ; 80 Supp. 194. That the execution of a money judgment shall not l>e stayed without security for more than thirty days, is provided by an amendment made in 1903 to Code Civ^Pro. § 1351. Return of commission. — A stay is proper where a commis- sion to take testimony necessary for a defense comes back im- properly executed, and where a new commission is directed, it being shown that the party opposing the stay will suffer in no way from reasonable delay. Neal v. Sherriff, 52 App. Div. 465 ; 65 Supp. 92. 4. Where the court or judge granting the stay has no jurisdiction, the stay is not merely to be disregarded when set aside or revoked ; but is void. Spencer v. Barher, 5 Hill, 568. 5. It is in the action itself, proceedings in which are sought to be stayed, that an order for a stay must be granted, and an order granted in another action, though some of the parties are the same in both actions, is unauthorized. Belasco Co. v. Elaw, 98 App. Div. 74 ; 89 Supp. 208. A motion for a stay should he made on notice, and if the ac- tion is triable in the first judicial district, the motion should be made in that district ; and if the stay is granted, on an ex parte application, and in a district other than the iirst, if the action is triable in the first, the order will be vacated. Delahunty V. Canfield, 106 App. Div. 386 ; 94 Supp. 815. A stay of proceedings in one action not proper in another. — Where one party sues another in a certain county, and is then sued by that other party in another county, it is not proper to 468 Bradbury's Lansing's forms and practice. Stay of Proceedings. grant the former a stay of proceedings in the second action where he brings his motion for such stay in the first action, such action being one at law and in which no equitable relief is asked. Purdy v. 'Balcer, 92 App. Di\^ 242 ; 86 Supp. 1065. Stay ly special term pending appeal to Court of Appeals. — Where defendants were directed by the Appellate Division to execute a conveyance, but an appeal was taken to the Court of Appeals, a special term of the Supreme Court has power to stay proceedings, and may impose conditions. Kager v. Brenneman, 52 App. .Div. 446 ; 65 Supp. 129 ; aff'd 165 N. Y. 674. 6. Stay for nonpayment of costs of a former action. — A stay is proper where a plaintiff in a prior action between the same parties had failed to pay the costs of such prior action, such prior action having decided whether the plaintiffs owned certain goods or had them as factors, and the present action being brought upon the same contract and relating to the same merchandise. Spaulding v. American Wood Board Go., 58 App. Div. 314 ; 68 Supp. 945. Where no proof is offered in opposition to a motion for a stay because of nonpayment of the costs of a former action between the same parties, the stay should be granted. Lederer v. Krausz, 90 Supp. 402. Order too Iroad. — Orders staying all proceedings on the part of the party who has not paid motion costs will be reversed as too broad, for the other party may waive a stay. Mattice V. Shetland, 76 App. Div. 236 ; 78 Supp. 537. A stay for nonpayment of costs is improperly granted where the defendant obtaining it, although he had been substituted, by stipulation, for the defendant in a former action, did not obtain an assignment of the judgment awarding costs until after submission of the papers on the motion for a stay. Tanzs- heim v. Brooklyn, Q. G. <& S. R. R. Go., 106 App. Div. 233 ; 94 Supp. 534. Irregularity only. — Where the costs of a former action be- COMMON FORMS. 469 Stay of Proceedings. tween the same parties and on the same subject-matter had not been paid, and the party stayed for such nonpayment begins a new action, the proceedings are made irregular but the court is not deprived of jurisdiction. Patchen v.DelaiDare& Hud- son Canal Co., 62 App. Div. 543 ; Yl Supp. 122. 7. Stay for nonpayment under Code Civ. Pro. § 779. — Wliere an order directs the cost of a motion to be paid, non- payment stays, without further direction by the court, all proceedings on the part of the party required to pay the costs, except to' review or vacate the order ; and this applies to a case where the Appellate Division awards costs on aifirraing an order granting a motion for a new trial. Code Civ. Pro. § T79 ; Cohen v. Krulewitoh, 81 App. Div. 147 ; 80 Supp. 689. Ten days must elapse. — The stay, under Code Civ. Pro. % 11%, does not operate until ten days, or the time fixed by the order, have elapsed since the service of the order award- ing costs. Pettihone v. Drakeford, 1 How. Pr. (N. S.) 141. Code Civ. Pro. § 779, regarding stay for nonjpaym-ent of costs, is applicable to a case where another action is begun be- tween the same parties to recover upon the same cause of ac- tion. Ingrosso v. Baltimoi'e and Ohio R. R. Co., 105 App. Div. 494 ; 94 Supp. 177. Where the plaintiff obtains an ex parte order at special terra, and this order is vacated with costs, Code Civ. Pro. § 779 is applicable and the plaintiff is stayed for failure to pay the " costs of the motion." Hunt v. Sullivan, 79 App. Div. 119 ; 79 Supp. 708. Only an irregidarity. — Where a party, stayed for nonpay- ment of costs under Code Civ. Pro. § 779, obtains an order for the examination of a witness (^« bene esse, and the other party seeks to vacate this order, but the costs are paid before the return day of said motion, such payment cures the irreg- ularity and the motion should be denied, for " failure to pay such costs did not deprive the court of jurisdiction to issue the order, but merely rendered the proceedings irregular." Jacobs V. Mexican, Sugar R. Co., 45 Misc. 56 ; 90 Supp. 824. 470 Bradbury's Lansing's forms and practice. Stay of Proceedings. An order cooiditioned on the payment of such costs will be upheld, for the stay under Code Civ. Pro. § 779, does not make a second action and all proceedings therein void. Wes- sels V. Boc4tcher, 142 X. Y. 212; 58 S. K. 653. The order awarding costs must he served on the attorney for the party against whom they are awarded, before the stay under Code Civ. Pro. § 779 operates. Sire v. Shubert, 93 App. Div. 324 ; 87 Supp. 891. Where a party, stayed for nonpayment of costs, subse- quently pays those costs, and, on the same day that he pays, serves notice of trial for the trial term next ensuing, only thirteen days before the trial term, instead of the fourteen days required by Code Civ. Pro. % 977, the court has no power to direct that the service of such notice of trial be deemed sufficient. Roberts v. Schaf 76 App. Div. 433 ; 78 Supp. 778. Waiver of this stay. — Where the plaintiff proceeds with the trial of a case in a municipal court of the City of New York, so far as to examine a jury and declare it satisfactory, the court should not later dismiss the case on his motion on the ground that defendant had not paid the costs of a prior action, but the plaintiff will be deemed to have waived the advantage of the order granting the stay. Pout v. Brooklyn Heights P. R. Co., 84 App. Div. 618 ; 22 Supp. 996. " Without Prejudice." — "Where a party seeks reformation of a contract and also money damages, and the court refuses him the former relief, but declines to pass on the latter, dis- missing the complaint " Avithout prejudice to an action at law on the written contract," the words " without prejudice " are held to mean that he may proceed in a new action at law de- spite the nonpayment of costs in the first action. SJceels v. Bodine, 68 App. Div. 217; 73 Supp. 1093. Stayed, although a poor person.— Wh.ere a plaintiff, non- suited in an action, obtains leave to sue again as a poor person on the same cause of action, and the order granting leave to sue as a poor person is vacated, a stay of proceedings, because of nonpayment of costs of the first action, should be granted. Muratore v. Pirkl, 109 App. Div. 146 ; 95 Supp. 855. COMMON FORMS. 471 Stay of Proceedings. 8. Where cases are similar. — A stay of proceedings should not be granted to stay the trial of an action entitled to a pref- erence under the Rapid Transit Act, pending the trial of an action which was previously brought, and which involved a somewhat similar point, but which was not entitled to a pref- erence. City of New Yorh v. Interhorough Rap. Transit Go., 109 App. Div. 596 ; 96 Supp. 314. Where a defendant is sued individually in one action, and as executrix, impleaded with another, in a subsequent action, and the plaintiff is the same in both, but there are different causes of action, a stay of the second action, pending appeal from a judgment awarded in the first, is improper. Jenkvns v. Baker, 91 App. Div. 400 ; 86 Supp. 958. Where a referee has two cases and it is clear that the main defense in each will he the same, and where he has decided one of these in favor of the plaintiff, a motion to stay the second of these actions until an appeal from the first is taken, should be denied. Caldwell v. Mutual Reserve Fund Life Assn., 30 Misc. 510 ; 63 Supp. 841. Where practically the same parties are at law in two actions, one in the Supreme Court and one in the City Court, and where both actions are on practically the same cause of action, it is not proper to stay the City Court action, it being impossible for one of three parties impleaded together to secure in the Su- preme Court action, any relief. Nussherger v. Wasserman, 40 Misc. 120 ; 81 Supp. 295. A stay is improperly granted, where the court awards it in an action, pending the determination of another similar action, but where the party against whom it is awarded is neither a party nor a privy to the latter action, nor would be bound by an adjudication therein. Dolheer v. Stout, 139 N. Y. 486 ; Sammons v. Parhhurst, 46 Misc. 128 ; 93 Supp. 1063. An action for damages for trespass on real property cannot be stayed until a final determination is made of an appeal to the Court of Appeals in a prior action, where such prior action established a division line on which the claim for damages is dependent, but where in such prior action the Appellate Di- 472 Bradbury's Lansing's forms and practice. Stay of Proceedings. vision was unanimous in its order of affirmance and denied an application for reargument and for permission to appeal to the Court of Appeals. Weiant v. BocJdand Lake Trap-Boch Co., 74 App. Div. 24; 76 Supp 699. The fact that two or more defendants are litigating a question, in a former action, which also arises in the suit in which they are both defendants, is not a ground for granting a stay as against the plaintiff in the latter action. Swift v. Finnigan, 53 App. Div. 76 ; 65 Supp. 723, and cases cited. Where in a foreclosure proceeding a referee makes his report and an attempt is made to obtain a further adjudication on a point already before the referee, and passed on by him, and a stay of proceedings upon the report of the referee is therefore asked, this should not be granted, for " any injustice that has been done in that proceeding can be corrected upon the appeal from the order confirming the referee's report." Farmers L. & T. Co. V. Hoffman House, 86 App. Div. 617 ; 83 Supp. 364. 9. Where a counteraction arising out of the same series of transactions is brought. — Where, after one party has brought an action, and his opponent brings a counteraction in a lower court, arising out of the same seriesof transactions, but where a determination of the former action would not necessarily settle all the issues arising from this series of transactions, a stay of the action in the lower court is not proper. Jones v. Leopold, 95 App. Div. 404 ; 88 Supp. 568. Where a party is sued for damages for 'breach of a contract, hut puts forward an equitable counterclaim and is entitled to a trial of such equitable counterclaim at special term, but where with ordinary diligence he may have it tried at special term, before the other action can be reached, he is not entitled to have the trial of the action stayed. Thomas v. Bronx Bealty Co., 60 App. Div. 365 ; 70 Supp. 206. Where a party sues in one county, and subsequently the as- signee of the party whom he sues brings, in another county, an action on a counterclaim, arising out of the same transaction, a motion staying this subsequent action, before an answer has COMMON FORMS. 473 Stay of Proceedings. been served therein, and consequently before it can be told what the issues will be, should be denied ; and it seems that it should be denied even if the answer has been served, be- cause " the actions are not between the same parties, nor are they for the same cause." Ogden v. Pioneer Iron Works, 91 App. Div. 394; 86 Supp. 955. It seems that " equity is not opposed to a speedy trial of a case, and a defendant may elect to enforce a claim by an action in the forum of his choice rather than to submit it by way of counterclaim in the suit of his opponent." Ogden v. Pioneer Iron Works, 91 App. Div. 394 at 396 ; 86 Supp. 955. In this ac- tion the defendant, in seeking a stay, suggested, according to the opinion, that " this action was brought in Queens County be- cause the condition of the calendar is such that a speedier trial can be obtained there than is possible in Kings County, and that it was also brought in order to forestall the trial of the claim on the contract by a prior trial of the claim for damages. Both objects are within the strict rights of a litigant." 10. Code Civ. Pro. § 1328 is applicable to a case where " the thing directed to be assigned or delivered " is a number of shares of the stock of a corporation, and where a justice at special term refused to fix the amount of an undertaking to stay execution under Code Civ. Pro. §§ 1328 and 1329, it was held that he should have done so. Dady v. CPourhe, 65 App. Div. 465 ; 72 Supp. 827. Matter of right. — It seems that a stay under Code Civ. Pro. § 1328 is a matter of right and not merely a matter to be granted or withheld in the exercise of judicial discretion. Dady v. O'Rourke, 65 App. Div. 465 ; 72 Supp. 827. 11. Stay of proceedings when judgment is interlocutory. — Code Civ. Pro. § 779 is applicable to a case where interlocu- tory costs are awarded in accordance with Code Civ. Pro. § 3232, an issue of law being disposed of but an issue of fact remaining undisposed of, and the party against whom the costs are awarded cannot proceed until he pays, except to review or 474 Bradbury's Lansing's forms and practice. Stay of Proceedings. vacate the order. Bigelow v. Drummond, 109 App. Div. 132 ; 95 Supp. 1027. Where, in an interlocutory judgment, one of the things re- quired is the delivery of stock to the plaintiff, the defendant is entitled to a stay as to that part of the judgment on condition that he consent to the transfer of the stock to the plaintiff on the books of the company, and permit the plaintiff to vote thereon ; but it seems that where a money judgment also is authorized, the plaintiff is not entitled to security as a condi- tion of a stay, as to that part, because the judgment being in- terlocutory, he could not yet enforce it. Potter v. Rossiter, No. 3, 109 App. Div. 37. 12. Where one party sues another in partition for property of which each owns an undivided half, but is sued by that other party to foreclose a mortgage on his half, the mortgage security being ample, it is proper to stay the proceedings in the latter action until the former is decided. Post v. Bcmks, 67 App. Div. 187 ; 73 Supp.. 596. 13. In an action to recover real property or the possession thereof, the plaintiff's attorney may be compelled to produce evidence of authority to commence the action ; and in a proper case, the plaintiff's proceedings must be stayed by the court or judge until such authority is produced. Code Civ. Pro. %% 1512, 1513. Stewm-t v. Butler, 27 Misc. 708 ; 59 Supp. 573. 14. Where an application to be made a party plaintiff is denied, the order staying the proceedings until an appeal from the order denying the application is decided should be reversed. Consolidated Railway Lighting and Refrigerating Co. V. Rice, 77 Supp. 227. 15. Bias no ground for stay — That part of a motion al- lowing a writ of certiorari to review, granted evi parte, which contains a stay of execution, will be vacated where no suffi- cient reason for a stay is put forward ; and where a subordin- ate in the Fire Department of the City of New York obtained COMMON FORMS. 475 Stay of Proceedings. such order, it is no reason for a stay of execution that there was bias and prejudice on his trial by the fire commissioner. People ex rel Croker v. Sturgis, 39 Misc. 448 ; 80 Supp. 194. 16. Can move for alimony despite stay. — Where in an ac- tion for the annulment of marriage, a stay of proceedings, under Code Ci/o. Pro. §1310, perfecting an appeal to the Court of Appeals, is obtained, the wife can nevertheless move for &\vcaonj pendente lite, for such motion for ahmony is not a proceeding enforcing the order or judgment. Di Lorenzo v. Di Lorenzo, 78 App. Div. 577 ; 79 Supp. 566. 17. Although an order vacatins an attachment of the prop- erty of a foreign corporation has been entered, this does not annul the warrant of attachment, and it is proper to grant a stay of proceedings pending an appeal from the order. Ifor- den V. D^l^ce, 47 Misc. 473. 18. Changing venue ; stay of proceeding. — An application to change the place of trial must be made at the earliest prac- tical day after issue joined, to entitle the applicant to a stay. Eule 48, Oen. Pules of Prac. Such order shall not stay the plaintiff from taking any step, except subpoenaing witnesses for the trial, without a special clause to that effect. Id. Appeal from order denying change of venue. — "Where a party seeks a stay until the determination of an appeal he has taken from an order denying his motion to change venue, the stay will not be granted. Schoonmaher v. Hillia/rd, 55 App. Div. 140 ; 67 Supp. 160. 19. Where the plaintiff in a replevin suit seeks to sub- stitute a third person claiming property in place of a defend- ant John Doe, but fails and costs are taxed against him, and where vsdthout paying such costs he obtains an ex parte order makins: the substitution, such order will be reversed. Hochr man v. Hauptman, 76 App. Div. 72 ; 78 Supp. 659. 476 Bradbury's Lansing's forms and practice. Stay of Proceedings. 20. The execution of a decree, in surrogate's courts, for money, delivery of property, etc., is not stayed by a notice of appeal, unless the appellant gives an undertaking, as provided by Code Civ. Pro. % 2578, besides giving the security to per- fect appeal required by Code Civ. Pro. % 2577 ; and where an appellant gave the security required by the latter section but not that required by the former section, he was punished for contempt for not paying certain legacies as directed. Matter of Holmes, No. 2, 79 App. Div. 267 ; 79 Supp. 687 ; Aff'dl76 N. Y. 604. Where a party seeks to stay am, accounting by an executor and trustee in a surrogate's court until an action involving certain transactions regarding the income of a trust estate un- der the will appointing the executor is decided, the applica- tion should be denied if brought at special term, instead of in a surrogate's court. Rutherfurd v. Myers, 50 App. Div. 298 ; 63 Supp. 939. 21. Inducing a bona fide holder of a mortgage to fore- close it, as against two defendants, one of whom offers the inducement, is not suflBcient ground to grant a stay at the in- stance of the other defendant, pending the final determination of an action between the defendants, relating to the mortgaged property. Swift v. Finnigan, 53 App. Div. 76 ; 65 Supp. 723. 22. Not limited to those acting in representative capac- ity — Code Civ. Pro. § 1312, subdiv. 2, which provides that the security required to stay the execution of a judgment or order appealed from, may be limited to $50,000, is not limited to appellants acting in a representative capacity. National Contracting Co. v. Hudson River Water Power Co., 47 Misc. 491 ; 94 Supp. 187. 23. An order staying all proceedings, except to appeal, is proper, where an order is granted setting aside a verdict as excessive unless the plaintiff consents to its reduction. Cul- len V. Uptegrove, 101 App. Div. 147; 91 Supp. 511. COMMON FORMS. 477 Stay of Proceedings. 24. In the municipal court. — To Code Civ. Pro. % 3050, hav- ing reference to an undertaking for a stay on appeal of an ex- ecution of a judgment of the Municipal Court, New Yorlc City, and requiring that the undertaking be approved by the jus- tice awarding the judgment, or by a judge of the appellate court, that part of Code Civ. Pro. % 1335, which provides that "it is not necessary that the undertaking should be ap- proved," does not apply. Howley v. Kraemer, 35 Misc. 444 ; 71 Supp. 948. Where judginent has heen recovered in the Municipal Court against a defendant, and execution has been issued under this judgment and levy has been made thereunder on his person- alty, and the defendant files a notice of appeal and serves an undertaking in accordance with the Zaws of 1Q02, c. 580, § 314, in an amount less than $500, the service merely stays further proceedings under the execution and if the defendant wishes to discharge the levy, he should file a new undertak- ing in $500. Ryman v. Segal, 44 Misc. 226 ; 88 Supp. 1036. 25. Code Ciy. Pro. § 2254, which has reference to the stay of a warrant to dispossess in summary proceedings, is appli- cable to a case where the warrant has not yet been issued, it seems, but not applicable for the purpose of staying the ex- ecution of the warrant itself after the warrant has been issued. Maneely v. Mayers, 43 Misc. 380 ; 87 Supp. 471. 26. Rule 37 of the General Rules of Practice, provid- ing for stays after a case has been noticed for trial, does not apply to special terms. Oakley v. Cohalete, 20 Misc. 206 ; 45 Supp. 782. [See further, anU, p. 332.] 478 Bradbury's Lansing's forms and practice. Stay of Proceedings. Form No. 399. Injunction Order Containing a Stay of Proceedings-^ At a Special Term of the Supreme Court held at the County Court House in the Borough of Brooklyn, Kings County, on the day of 19—. Present, Hon. A. B., Justice. C. D., Plaintiff, V. E. F., Defendant On reading and filing the affidavit of G. H., verified the - day of , 19 — , and the order to show cause herein, dated , 19 — , the affidavit of I. J., verified 19 — , and upon reading the summons and complaint and notice of pendency in this action, and the summons, com- plaint and notice of pendency in the action brought and now pending in the Supreme Court, Kings County, in which E. F., the defendant herein, is the plaintiff, and C. D., the plaintiff herein, is the defendant, heretofore filed in the office of the Clerk of the County Kings, an after hearing K. L., in sup- port of the motion, and I. J., in opposition thereto : JNow, on motion of K. L., attorney for the plaintiff, it is Oedeeed, that the said E. F., the defendant in this action, and the plaintiff in said action brought and now pending in the Supreme Court, Kings County, wherein said E. F. is the plaintiff, and the plaintiff herein, C. D., is the defendant, and her attorney, I. J., be, and they are hereby, jointly and sev- 1 The above form is taken from the case of Post v. Banks, 67 App. Div. 187; 73 Supp. 596; in which it was held that under the facts it was proper to enjoin the foreclosure proceedings. COMMON FORMS. 479 Stay of Proceedings. erally enjoined and restrained from taking any further steps or proceedings in or relative to said action until the final de- termination of this action ; and it is further Oedeeed, that all proceedings in said last above mentioned action, brought by said E. F. against said C. D., be, and the same are hereby, stayed until the final determination of this action. Granted, 19 — . Enter, A. B., Clerk. Form No. 300. Stay Contained in an Order for a Commission.^ [Caption, etc.] The motion of the defendants herein , it is Oedeked, that a commission issue, ; and that the trial of this action be stayed until the return thereof. Enter, A. B., J. S. 0. 1 The above form is from the case of Neal v. Sherriff, 52 App. Div. 465; 65 Supp. 92; wliere a stay was held proper under the circumstances of that case. 480 bradbuey's Lansing's toems and peactice. Stay of Proceedings. Form No. 301. Stay Until After Determination of an Appeal in a Similar Action. 1 [Caption, etc.] Upon reading and filing, etc. And after hearing, etc. Now, or motion of, etc., it is Okdeeed, that all proceedings on the part of the plaintiff in this action be, and they are, hereby stayed until the final de- cision by the Appellate Division, Department, of the appeal of, etc. And it is further ordered, etc. Enter, A. B., J. S. 0. Form No. 303. Order Denying a Motion for a Stay.^ At a Special Term of the Supreme Court of the State of New York, held in and for the County of at the County Court House in said County on the day of , 19—. Present, Hon. A. B.- Justice. C. D., Plaintiff, against E. F., Defendant. 1 The above form is taken from the case of Jenkins \. Baker, 91 App. Div. 400; 86 Supp. 958; where, however, it was held that the grounds for the stay were insufficient. 2 The above form is taken from the case of Rutherfurd v. Myers, 50 App. Div. 298; 63 Supp. 939, where it was held that the application should have been brought in the Surrogate's Court instead of at Special Term. COMMON FORMS. 481 Stipulation. On reading and filing the plaintiff's notice of motion herein for a stay of the proceedings for , and the affidavits of , and on the summons and complaint herein, after hearing \h.e^e insert names of counsel], It is ordered, that plaintiff's said motion for a stay of the proceedings for be, and the same hereby is, in all things denied. Enter, A. B., J. XXV. STIPULATION.' FORMS. NO. PAGE 303. Stipulation extending time to answer 491 304. Stipulation submitting certain specific questions to a referee. . 492 305. Stipulation for a deposition. 493 306. Stipulation not to appeal 494 307. Stipulation to submit on agreed statement of facts 495 308. Stipulation of case on appeal 496 1 . A stipulation is an agreement, oral or in writing, be- tween the parties to a controversy, or their counsel, on some matter in reference to a proceeding, contemplated or begun. The word stipulation is also used in the sense of condition, such as a stipulation in an insurance contract. 2. Written stipulations are preferable in all cases, and by Eule XI. of the General Rules of Practice, no agreement between parties or their attorneys shall be binding unless re- duced to an order by consent and entered, or unless the evi- dence of the stipulation is in writing and subscribed. If an agreement is made orally in open court, however, and duly en- tered, it wiE be enforced. 3. The limits within which enforceable stipulations may be made are extremely broad. In many cases, however, relief will be given from stipulations. 1 See also Submission op Controverst on Admitted Facts, ante, pp. 72-76. YOL. 1—31 482 Bradbury's Lansing's forms and practice. Stipulation. 4. "Parties by their stipulations may in many ways make the law " it seems, " for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away such statutory, and even constitutional rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, such limitations being frequently found in insurance policies. They may stipulate that the decision of a court shall be final, and thus waive the right of appeal ; and all such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced ; and generally, aU stipulations made by parties for the government of their conduct, or the control of their rights, in the trial of a cause, or the conduct of a litigation, are enforced by the courts." Matter of Peti- tion of the New York, Lackmjoanna <& Western R. B. Co., 98 F. Y. 447. 6. May stipulate away questions of jurisdiction. — "In civil cases," it seems, "a party may stipulate away all his rights, questions of jurisdiction as well as others, and he may do this by express agreement, by acts inconsistent with the objection, or by his silence and omission to present the proper points when he ought to object." Oowenhoven v. Ball, 118 N. Y. 231. 6. These broad powers apply to civil and not to criminal cases, and where in a murder trial it is stipulated in open court by all the parties, including the prisoner himself, that a ver- dict be rendered by eleven jurors, a verdict so given will be set aside. Cancemi v. The People, 18 N. Y. 128. 7. The unconstitutionality of a statute may be waived by implied stipulation. Vose v. Gookoroft, 44 N". Y. 415. 8. To take deposition in negligence case Where the at- torneys in a negligence suit signed a stipulation, allowing the COMMON FORMS. 483 Stipulation. deposition of the man injured to be taken at -his residence, it was held that such stipulation was proper, that the attorneys had power to make it, and as the attorney for the railroad corporation had obtained an advantage by it for his client, he would not be allowed to repudiate it. Ludeman v. Third Avenue Bailroad Co., Y2 App. Div. 26 ; 76 Supp. 128. 9. Stipulating away the right to appeal. — " The right to appeal is a valuable right and the agreement to surrender it must be based upon some consideration or the facts must es- top the party from exercising it." Ogdenshurgh c& Lake Cham- plain a. R. Co. v. Vermont <& Canada H. R. Co., 63 N. Y. 1T6. Where counsel send a case to a referee under a stipulation not to appeal from his report, although the stipulation is made without the consent of their clients, who insist that counsel did not present the case with the ability demanded, but no fraud or collusion is charged, and the stipulation has been fully performed, it will not be set aside. Smith v. Barnes, 9 Misc. 368 ; 29 Supp. 692. Where an attorney general orally stipulates not to take an appeal, on condition that opposing counsel waives costs, and the latter agrees, and informs his clients that the case is at an end, and two years afterward the attorney general's successor in oflBce appeals, such appeal will be dismissed. People v. Stephens, 52 N. Y. 306. 10. An oral stipnlation to adjourn court to a place other than the courthouse is invalid under Code Civ. Pro. § 37, and the court has no jurisdiction to enter a judgment by de- fault at such adjourned term. Armstrong v. Loveland, 99 App. Div. 28 ; 90 Supp. 711. An order of reference hy stipulation in a municipal court of the City of New York is absolutely void, as are the pro- ceedings taken on the reference, a municipal court being a court not of record and with limited jurisdiction ; and a judg- nient so obtained will not be upheld nor will a judgment for 484 Bradbury's Lansing's forms and practice. Stipulation. the fees of the referee and the stenographer, which, by a stip- ulation, are to be disbursements in the action and a part of the judgment entered. Barber v. Lane, 60 App. Div. 8Y ; 69 Supp. 739. 11. Does not apply to an agreement for settlement. — Eule XI. of the General Kules of Practice requiring agreements or consents " in respect to proceedings in a case" to be in writing is not applicable to an agreement for a settlement of a con- troversy. Smith V. Baoh, 82 App. Div. 608 ; 81 Supp. 1057. 12. To fix a referee's fees by stipulation above the statu- tory rate is within the general powers of an attorney, and even where he fixes $50.00 a day as compensation, and the court seems to think it too large a sum, the client will be bound. Mark v. City of Buffalo, 87 N. Y. 184. If hoth parties stipulate iii writing that the referee may charge such fees " as he deems proper" this stipulation will not be upheld as a stipulation fixing referee's compensation as re- quired by Code Civ. Pro. § 3296. Hew York Mutual Sav- ings & Loan Association v. Westchester Fire Insurance Co., 98 App. Div. 285 ; 90 Supp. 710 ; citing First National Bank of Coaperstown v. Tamajo, 77 !N". T. 476. 13. Compensation of receiver irregularly appointed. — A stipulation that a judgment should be amended to conform to a referee's report so as to include a receiver's compensation and counsel fees, although such receiver had been improperl}'^ appointed, is binding. Kelsey v. Sargent, 2 St. K. 669. 14. Stipulating away a defense.— Where it is stipulated, in an agreed statement of facts, that all the allegations of the complaint, except certain expressly excepted ones, are true, and a defense is interposed which attempts to controvert a certain allegation admitted as true by this stipulation, this defense, be- cause of the stipulation, is unavailable. Driscoll v. Brooklyn Union Elevated Railroad Co., 95 App. Div. 146 ; 88 Supp. 745. COMMON roRMS. 485 stipulation. If parties limit their controversy, by stipulation, to the de- termination of a specific question, the appellate court " cannot go beyond the range of inquiry which they have defined.'' BleaMey v. SuUi/oan, 140 N. Y. 175 ; Hong Kong and Shang- hai Banking Corporation v. Cooper, 114 N. T. 388. Without pleading. — ^Where, at the beginning of a trial, counsel agree in open court to try the case on the merits with- out pleadings, the pleadings having been lost, they will not be allowed thereafter to raise any question -based on any de- fect or insufficiency of pleadings. Cook v. Allen, 67 N. T. 578. Specifio questions referred. — A party who stipulated to re- fer, not the issues, but specific questions, to a referee, cannot afterward.. object that the issues were disregarded. Lahe v. Anderson, 76 App. Div. 189; 78 Supp. 444; appeal dismissed, 174 N. Y. 524. 15. Terdicts in judge's absence. — Where counsel for both parties stipulate in open court that a sealed verdict which has been ordered may be given to the officer in charge of the jury and given by him to the clerk, and that the clerk may open it and record it, neither the presiding justice nor the jury being present, it is held that such stipulation binds the par- ties. Chichester v. Wintmx Motor Carriage Co., 110 App. Div. 78 ; 96 Supp. 1006. This practice, however, is not favored and "is concededly irregular, though at times desirable and even necessary." Du- luc V. Lasell, 182 N. Y. 482. Sut if without a stipulation hy counsel the judge at the trial directs the clerk to receive the verdict and thereupon leaves the trial, the judgment so rendered will be reversed. Morris v. Harburger, 100 App. Div. 357 ; 91 Supp. 409. 16. Merging two actions. — If, where an attorney is seek- ing his fees, it is stipulated in open court that a prior pro- ceeding instituted by him for such fees be merged in a subse- quent one, brought for those fees and for certain other fees, 486 beadbury's Lansing's forms and practice. Stipulation. and that the referee determine both, the defendant cannot repudiate the stipulation and " claim the benefit of whichever of two inconsistent orders he may deem most to his advan- tage." Valentine v. Stevens, 86 App. Div. 481 ; 83 Supp. 775. Stipulation not limited as to time. — Where the attorney for one party admitted a certain important fact in the first trial of an action, the Court of Appeals considered this admission, though it was not in the return, on a review of the evidence to support the decision in the second trial of the same action, although it held that record evidence in the return might not be read by the court on review which secured a reversal. Stemmler v. Mayor, Aldermen and Commonalty of New York, 179 N. Y. 473. Former decision conclusive. — If the parties stipulate that the entry of the judgment and the decision on a former case is conclusive on the case for which the stipulation is made, but on such second action, the judgment is not proved, but, in- stead, all the testimony taken in said former action, the stipulation does not operate. Magnolia Metal Co. v. Sug- den, 57 App. Div. 575 ; 68 Supp. 563. 17. Extensions of time by stipulation. — Where the attor- neys for both parties, on the eleventh day of the month, a Saturday, agree by written stipulation that their action be ad- journed to the twenty-first, but the clerk of the court to whom the stipulation is mailed does not receive it until the case has been called, and the case is dismissed because no one appears, but the clerk on receiving the stipulation restores the case to the calendar, and sets it for the twenty-seventh for trial, juris- diction has not been lost by the dismissal, and the stipulation is properly carried out. Johnson v. Monoha/n, 47 Misc. 689 ; 94 Supp. 351. .Extensions given iy each side. — The defendant having granted the plaintiff a number of extensions, and on granting the last extension, both parties having stipulated that the de- fendant should " have the same amount of time in which to an- swer, move or demur to the complaint, when the same shall be COMMON FORMS. 487 Stipulation. served, as the plaintiff has had altogether in which to serve the complaint," and the plaintiff having had, in all, about a year in extensions, it was held that, no change in the circumstances of the parties appearing, the stipulation should be upheld. Morris v. Press Pub. Co., 98 App. Div. 143 ; 90 Supp. 6Y3. 18. A stipulation for the doing of certain things, not all of which are part of the proceedings themselves, is bind- ing. Potter V. Bossiter {No. J,), 109 App. Div. Y37 ; 96 Supp. 177. 19. Enforcing stipulation hy action. — The existence or validity of a stipulation being dependent upon voluminous evi- dence, it seems that " an action for its enforcement may be the proper remedy ; but the court always has the power to en- force in a summary way, by motion, the observance of an un- disputed and proper stipulation entered into by the parties to an action." Potter v. Bossiter {No. 4), 109 App. Div. 737 ; 96 Supp. 177 20. A city attorney has power, it seems, to hind the city by a stipulation not to appeal. Peoj)le ex rel. Burby \. Common Council of the City of Auburn, N. Y., 85 Hun, 601 ; 33 Supp. 165. 21. Stipulations must he in writing. — Agreements regard- ing the proceedings in a case must, in accordance with Eule XI of the General Eules of Practice, be in writing to be binding. Mutual Life Insurance Co. v. CDonnell, 146 N. T. 275. Even an agreement for a further adjournm,ent of a case, one adjournment already having been taken by written stipula- tion, must be in writing under Eule XI. Sohlesinger v. Keene, 88 Supp. 1042. In case of fraud or deceit, however, or where a party has acted on a parol stipulation to his prejudice, and to the advan- tage of the other party who seeks to repudiate it, the court will usually enforce the stipulation even though it was not re- 488 Bradbury's Lansing's forms and practice. Stipulation. duced to writing. People v. Stephens, 62 E". Y. 306 ; Mont- gomery V. Ellis, 6 How. Pr. 326 ; Slinnard v. N. Y. Fire Ins. Co., 1 How. Pr. 169 ; Wagner v. Stickle, 3 Paige, 407 ; Gris- wold V. Lawrence, 1 Johns. 507. 22. Where it is stipulated that a witness is not to be examined as to his competency as an expert, it is rever- sible error for the court to refuse to permit him to be cross- examined in reference to other matters than his competency as an expert. Chanhalian v. Powers, 89 App. Div. 395 ; 85 Supp. 753. 23. Stipulation construed strictly. — Though counsel for the defendant corporation, in a negligence action, concedes in open court that the negligence of the defendant's motorman was " the sole cause of the injury," he may, nevertheless, prove that the plaintiff's condition did not result from the accident, but from premature confinement. Fawdrey v. The Brooklyn Heights Railroad Co., 64 App. Div. 418 ; 72 Supp. 283. Evidence to prove the intention of a stipulation will be ex- cluded ; it is " to be construed according to the import of the language it contained, in view of the circumstances under which it was made." Schroeder v. Erey, 12 Supp. 625. Meaning of "Final Judgment.''^ — If it is stipulated that one of the parties is to receive back certain moneys if " final judgment" is rendered for him, and, in a new trial had, the party who made these payments is successful, the moneys must be paid back, although an appeal is taken ; for, " that an appeal may be taken, and the judgment may be reviewed, does not diminish its quality as ' final.' " Yalentine v. Cen- tral National Bank, 10 Abb. K C. 188. Where a town obtains, against a railroad company, a man- damus, which does not, as the town desires, require the rail- road to put in an undercrossing at a highway intersection ; and the attorneys had stipulated that any crossing (except an undercrossing) which the railroad might put in should be re- garded as only temporary ; such stipulation is not a contract COMMON FORMS. 489 Stipulation. to put in an undercrossing. Peo;ple ex rel. Town of Coles- ville V. The Delaware and Hudson Co., 81 App. Div. 335 ; 81 Supp. 478 ; afif'd 177 N. T. 337. A prisoner having heen ordered extradited by the Governor of New York State, and having obtained a writ of habeas corpus, and it having been stipulated at the hearing had on the return of this writ, that the relator was not in the State asking extradition at the time of the commission of any of the offenses charged against him, this stipulation, it seems, should be construed as admitting that he was absent at the time of the commission of the offenses charged, and not merely that he was not in the State asking extradition at the particular dates alleged in the indictment. PeopU ex rel. Gorkran v. Hyatt, 172 N. T. 176. 24. Stipulation at variance witli established rules of evi- dence. — A stipulation that either party may -read in evi- dence any part of the printed case on an appeal from a former trial of the same action does not permit a party to read declarations in his own favor and letters in contradiction of his answer. Grant v. Pratt, 87 App. Div. 490; 84 Supp. 983. 25. Lack of stipulation for judgment absolute — If the Appellate Term allows an appeal to the Appellate Division from a judgment taken in the City Court in the City of New York and reversed by the Appellate Term, but the Appellate Term does not require as a condition of allowing the appeal that the appellant file a stipulation that upon afBrraance, judg- ment absolute shall be rendered against him, the Appellate Di- vision has no authority to order judgment absolute. Hart v. North German Lloyd Steamship Co., 108 App. Div. 279; 95 Supp. 733. 26. Relief from stipulations. — The ground on which courts of law set aside stipulations is that, as courts of equity would do so, they will do the same, in virtue of their control over 490 BRADBURY'S LANSING'S FORMS AND PRACTICE. Stipulation. the parties and attorneys, to save time and expense. Becker V. Lamont, 13 How. Pr. 23. Must show good ground for relief. — "Where a plaintiff seeks relief from a stipulation, but his motion papers show neither that the stipulation was obtained by misrepresentation, nor that his attorneys were misled by the stipulation, nor that his interest was prejudiced by it, relief will not be granted. Lee V. Winans, 99 App. Div. 297 ; 90 Supp. 960. Stipulating away defenses. — If the stipulation, relief from which is asked, was made at about midnight, both parties be- ing mistaken as to the purpose accomplished by it, and if it in fact deprived the party seeking relief of several defenses set up in the answer, relief will be given. Becker v. Lamont, 13 How. Pr. 23. Where inadvertently, and without the knowledge of de- fendant corporation, or any of its officers, and without authoriza- tion from it,- such corporation's former attorneys sign, pend- ing the trial, at the request of the plaintiff's attorneys, and for the purpose of the trial, a stipulation admitting a fact which concedes away any possible defense the corporation may have, the court will grant relief from such stipulation, provided the defendant will pay the costs and counsel fees of the plain- tiff's attorneys, who otherwise would lose the same. Oalvet- Eogniat v. Mercantile Trust Co., 46 Misc. 20 ; 93 Supp. 241. If, soon after an action is hegun, the parties stipulate that the issues in a certain other action shall be " conclusive upon and as to the issues " in their action, and it appears that if this stipulation is set aside, both parties will be restored to substantially their former position, relief from the stipulation will be granted ; especially as " what the parties had in mind when the stipulation was made was that the issues in the other action were to be determined upon the merits " ; and, in fact, such issues were not determined upon the merits. Magnolia Metal Co., v. Found, 60 App. Div. 318 ; YO Supp. 230. Belief from a stipulation made hy a plaintiff without the knowledge of his attorneys was given in a negligence action COMMON FORMS. 491 Stipulation. on condition that the defendant pay all costs since service of the original answer. Kuehn v. Syracuse Rapid Transit Hail- road Co., 104 App. Div. 580 ; 93 Supp. 883. To agree to pay, out of a fund in court, the stenographer's fees on a reference, by stipulation, is not proper, and relief will be given. Cowen v. King, 54 App. Div. 331 ; 66 Supp. 621. If an attorney stipulates that his opposing attorney may have until a certain day to deliver his brief to the referee, but this stipulation is not brought to the attention of the referee, and the referee files his report before the day fixed by the stipulation, and the attorney who gave the stipulation enters judgment, knowing that the referee made his report before receiving the opposing attorney's brief, the case will be re- ferred back to the referee so that a new report may be made. Mercantile National Bank v. Sire, 100 App. Div. 491 ; 91 Supp. 419. But from an oral stipulation which has caused a party to he misled, relief will, it seems, be given. Mutual Life Insur- ance Co. V, CDonnell, 146 N. Y. 276. 27. Stipnlation disregarded. — "Where it is stipulated that certain lands shall be valued for tax purposes at $200,000 ; but at $50,00p, if the courts decide that the party taxed has not possession and is not entitled to possession ; and the court decides that it has no power in this proceeding to decide the point as to possession, the stipulation will be disregarded. MatUr of the Long Beach Land Co., 182 IST. Y. 489. Stipulation for decision on pleadings. — Attorneys having stipulated that the court shall decide the case on the pleadings, and each attorney having submitted a so-called " statement of facts," but no agreement having been made that the court shall determine the issues upon these statements, the court has no proof on which to find a judgment. Blackgrove v. Fla- herty, 46 Misc. 468; 92 Supp. 257. 492 Bradbury's Lansing's forms and practice. Stipulation. Form No. 303. Form of Stipulation Extending Time to Answer. [Caption.] It is hereby consented by and between the parties to the above entitled action that the time of the defendant to an- swer the complaint herein, be, and the same hereby is, ex- tended to , 19 — . Dated this —day of , 19 — . Plaintiff's attorney. Defendant's attorney. Form No. 304. Stipulation to Submit to a Eeferee Certain Specific Questions.^ [Title.] It is hereby stipulated and agreed by and between the at- torneys for the respective parties, plaintiff and defendant, sub- ject to the conditions hereinafter set forth, that the above action be referred to , Esq., an attorney and coun- selor at law, at to take and report to the court the testimony of the witnesses which may be produced in the above action by either party, as to the interest of A. B., plain- tiff's intestate, or the interest of said plaintiff, and tna interest 1 This form is taken from the case of Lake v. Anderson, 76 App. Div. 189; 78 Supp. 444; appeal dismissed, 174 N. Y. 524, in which it was held that where the -parties, by stipulation, refer, not the issues in their action, but specific: questions, to a referee, and he reports on the evidence, and the court makes a finding thereon; and subsequently a judgment is rendered, based on this finding; such judgment cannot be reversed on the plea of the defendant that the court disregarded the issues raised by the pleadings, for such disregardal was his own act. COMMON FORMS. 493' Stipulation. of said defendant in the alleged partnership mentioned and referred to in said action. And that said defendant render to said referee a full account of his proceedings as surviving partner of A. B., deceased, and that said referee take and report the testimony in reference to said account. This stipulation is made subject to the following condi- tions : And it is hereby stipulated that the defendant's attor- ney may have the privilege of moving at any Special Term of this court, within this Judicial District, to dismiss the plaintiff's complaint, the same as though the motion was made at the trial, on the grounds that the same does not set forth facts sufficient to constitute a cause of action. At any time before said testimony is taken by said referee, or at his election, said defendant may make said motion before said referee, to be determined by this court on the coming in of said referee's report. Dated, . ', Pl'ff's Att'ys. , Def't's Att'ys. 494 BRADBURY'S LANSING's FORMS AND PRACTICE. Stipulation. Form No. 305. Stipulation for a Deposition.' A. B. V. C. D. In the Matter of the Perpetuation of the Testimony of A. B., for use on the Trial of An Action to be Brought by the Executor or Administrator of the said A. B., on behalf of the Widow or next of kin of the said A. B., In the event of his Death. I It Is stipulated by and between the attorneys for the par- ties hereto that the deposition of the above named A. B., shall be taken at his residence No. — , Street, in the City of , on the day of , 19—, at o'clock in the noon of said day and that plaintiflf's attorney shall examine the said plaintiff orally and the at- torneys for the defendant shall cross-examine him orally and that such examination and cross-examination be reduced to writing and signed and sworn to by the said A. B., before a Notary Public in the County of New York and that the de- position so taken may be read on the trial of the above-en- titled action now pending, or in the event of the death of the said A. B. before the trial of the above-entitled action now pending, on the trial of any action instituted by the legal representatives of the said A. B., against the said C. D., pui- 1 Tbis form was taken from the case nf Linhiiitn} v. Third Avenue Railroad Co., 12 App-'Div. 26 ; 76 Supp. 128, wlieje it was held that the attorney for the railroad corporation had implied authority to make such stipulation, the stipulation apparently, as to form, being deemed suffi- cient. COMMON FORMS, 495 Stipulation. suant to the sections 1902, 1903, 1904 and 1905 of the Code of Civil Procedure. And it is further stipulated that all objec- tions to the testimony taken on such examination be, and the same hereby are, reserved until the trial of either of such ac- tions. Form No. 306. Stipulation Not to Appeal' The issue in the above-entitled action having been set down for trial this day of , 19 — , and the case hav- ing been called and marked ready, it is hereby Stipulated and agreed by and between the parties to this action and their respective attorneys that the issues in the above-entitled action be, and the same hereby are, referred for determination to the Hon. , as referee, the said reference to proceed without delay, and to continue thereafter without unreasonable adjournment as hereinafter speci- fied. And it is further stipulated and agreed that neither party hereto will appeal from the judgment to be entered on the report of the referee, or make any motion in arrest or stay of the said judgment, or of the execution to be issued thereon, or appeal from any order denying any motion that may be made by the defeated or aggrieved party for a new trial, the object of this stipulation being to bring this litigation to a speedy and final determination. Dated, New York, , 19—. Attorney for plaintiff. Attorney for defendant. 1 The above form is taken from the case of Smith v. Barnes, 9 Misc. 368; 29 Supp. 692, where the stipulation was held binding. 496 bbadbury's Lansing's forms and peactice. Stipulation. Form No. 307. Stipulation to Submit on an Agreed Statement of Facts. [Title.] The parties to this action by their respective attorneys, hereby stipulate to submit this case to the Special Term of this Court for trial and do agree that the following statement con- stitutes the facts and all the facts herein and agree that the fee and rental damage to the premises referred to herein is dollars. STATEMENT OF FACTS. II. That all the allegations of the complaint are true ex- cept as to the amounts alleged in the paragraph of the complaint as damage for loss of rents and as to the dam- age to the fee value of said premises, it being hereby agreed that the fee and rental damage to said premises caused by the maintenance and operation of said railroad is the sum of dollars. Said complaint is hereto annexed and marked Exhibit "A." III. Dated, , 19—. It having been agreed between the parties to submit this case upon Agreed Statement of Facts, and such facts having been heretofore agreed upon, and the defendants now desir- ing to offer testimony tending to show that the plaintiff at the time he witnessed the execution of the release by his mother to the elevated railroad company knew the contents of such release, it is now hereby stipulated and agreed, that the de- fendant may offer at the trial such competent evidence as nlay show that the plaintiff knew the contents of the release affecting the premises described in the complaint at the time his mother executed the same and at the time he witnessed such execution ; that the plaintiff may offer such competent evi- COMMON FORMS. 497 Subpcenas. dence as he deems proper in contradiction, explanation or otherwise in rebuttal of the testimony so introduced by the defendants. Dated, , 19—. Form No. 308. Stipulation of Case on Appeal. (Code Civ. Pro. § 3301.) Pursuant to Section 3301 of the Code of Civil Procedure, we hereby stipulate that the foregoing are true copies of the Summons, Pleadings, Agreed Statement of Facts, Judgment, Findings of Facts and Conclusions of Law, Memorandum of Opinion, Defendant's Acceptance, Defendant's Notice of Ap- peal, copy of Will of , and the release of to the Eailroad Company which are on file in the office of the Clerk of the Supreme Court of the County of , and certification thereof pursuant to 1353 of the Code of Civil Pro- cedure be and the same hereby is waived. It is further stipulated that a copy of the printed case on appeal herein be filed in lieu of the engrossed copy required by the rule. And it is hereby further stipulated that the within printed case of Appeal contains all the evidence given on the trial of said action and may be ordered on file as the original case on appeal as settled herein. Dated, , 19—. Attorney for Pl'ff-Eesp't. Attorney for Deft's-App'l'ts. The foregoing case contains all the evidence given in this Vol. 1—32 498 Bradbury's Lansing's forms and practice. Subpoenas. action and is hereby signed by me and ordered to be filed as the original case on appeal settled herein. Dated, , 19—. J. S. C. XXVI. SUBPOENAS. FORMS. NO. PAGE 309. Subpoena. General Form 506 310. Subpoena. New York Trial Term. Issued by order of court or judge 508 311 . Subpoena duces tecum 510 312. Affidavit of service of subpoena 511 1. A subpoena is a written, command directing a person to testify. It is usually issued by the attorney for a party, but it may by issued by a court, a sheriff (in certain cases), a board of supervisors, a legislative committee, and others. A sub- poena duces ieoum directs a witness to bring certain specified documents with him. "With a subpoena, the proper witness fees, and the legal allowance for traveling, must be paid or tendered, in order to make the subpoena effective. In chan- cery practice, a subpoena is used as the equivalent of the word summons in actions at law. Of course, however, this dis- tinction is no lopger recognized under the New York Code of Civil Procedure. 2. Issued by attorney. — A subpoena in a civil action in a court of record is issued by the attorney except as otherwise specially provided. Code Civ. Pro. §§ 24, 854, 885. Ordin- arily the attorney signs it. In some cases, it must be signed by a judge, a clerk, or some other officer, as a referee, before whom the witness is to appear. Code Civ. Pro. § 854. In case of doubt, the subpoena should be subscribed by the judge or clerk, and issued under the seal of the court. COMMON FORMS. 499 Subpoenas. 3. Who may issue subpoena. — "A court of record has power to issue a subpoena, requiring the attendance of a per- son found in the State, to testify in a cause pending in that court ; subject, however, to the limitations prescribed by law, with respect to the portion of the State in which the process of a local court of record may be served." Code Civ. Pro. Supervisors. — Supervisors may subpoena a witness, but for failure to attend, a judge must issue a warrant for his appre- hension ; the punishment of such a witness for contempt is not authorized. Matter of S^iperimtendent of the Poor of Westchester County, 6 App. Div. 144 ; 39 Supp. 8Y8. Commissioner appointed Iry foreign court: — A commis- sioner appointed by a court of another State may obtain, by a subpoena issued by the Supreme Court of New York State, the attendance of a witness before him in this State, the proceedings having been taken in accordance with the re- quirements of the foreign State; but a subpcBna duces tecum to compel the production of books, to find evidence through them, is improper. Matter of Lee, 41 Misc. 642 ; 85 Supp. 224. Testimony must he tahen in this State. — A subpoena, under Code Civ. Pro. % 915, is invalid where it is not shown that the commission was issued to take testimony within this State. Matter of Ca/iiter, 82 App. Div. 103 ; 81 Supp. 416. Legislative committee. — Code Civ. Pro. § 854 was amended in 1900 to give the power of issuing subpoenas to compel wit- nesses to testify to a committee or joint committee of the leg-- islature. A sheriff, in an inquisition to try a claim of title by a third person to property the sheriff has seized, may subpoena wit- nesses on the application of either party. Code Civ. Pro. § 108, subd. 2. 4. Where a subpoena, upon a commission from a Pennsyl- vania court, to a lawyer in the State of New York, has been is- sued without proper notice to those entitled thereto, this objection may be raised in the courts of Pennsylvania and there- 500 Bradbury's Lansing's forms and practice. Subpcenas. fore the subpoena will not be vacated by a court of the State of New York, though such refusal is made without prejudice to any proceeding taken thereafter. Matter of Shawmut Mining Co., 94 App. Div. 156 ; 8Y Supp. W59. 5. A person subpoenaed to testify in supplementary pro- ceedings may refuse to be sworn, if the judgment debtor has not been served. People ex rel. Or ant v. Warner, 51 Hun, 56 ; 3 Supp. 768 ; Aff'd 125 K Y. 74G. 6. Defective subpoena. — A hlanh for the day and month of the return, in the copy of a subpoena to appear and answer [1833 case] served on a defendant, was held to make it a nul- lity. Arden v. Walden, 1 Edwards' Ch. 631. 7. Notice cannot take place of subpoena. — Mere notice is not sufficient, where, a defendant having pleaded usury, he calls the plaintiff as a witness ; the plaintiff must be sub- poenaed, like any other witness. Sapelye v. Prince, 4 Hill, 119. 8. Where and by whom served. — A subpoena in the Su- preme Court may be served anywhere in the State. The place of service in local courts is governed by special Statutes. Thus, in the New TorJc City Court a subpcena may be served in New York County, Kichraond, Kings, Queens or "Westches- ter County. Code Civ. Pro. § 338, subd. 2. In a county court, the subpoena may be served anywhere in the State ; the witness's fees for attending, and his mileage, are the same as in the Supreme Court. Code Civ. Pro. §§ 347, 3318. In a surrogate's court the subpoena may be served in any county ; the witness's fees for attending, and his mileage, are the same as in the Supreme Court. Code Civ. Pro. §§ 2515, 2566. In the municipal court of the City of New York a sub- pcena is issued by the clerk and may be served anywhere in COMMON FORMS. 501 Subpoenas. the City of 'New York, by any person over eighteen years of age, and the witness may be required to produce a book or paper. The fees are twenty-five cents and mileage at the rate of eight cents a mile one way from the witness's residence to the courthouse. Munic. Court Act, §§ 196, 197. In a justice^ court a subpoena is issued by the justice under his hand without a seal. Code C'tv. Pro. § 3135. It may be served anywhere in the county where the justice resides. Code Cw. Pro. § 2969 ; and may compel a witness to attend in that county or in an adjoining county before another justice. Id. In the latter case, however, the person applying for the subpoena must file an affidavit stating that an action is actually pending before the justice before whom the subpoena is returnable. Id. The subpoena may be served by a constable or any other per- son " by reading it or stating its contents to the witness." Code Civ. Pro. % 2970. The fees are twenty -five cents for each day's attendance. Code Civ. Pro. % 3327. Service may he made hy a private person, and the United State courts, when sitting in ]!^ew York State, follow this prac- tice. Cummings v. Ahron Cement and Plaster Co., 6 Blatchf. 509. 9. Snbpcenaing hospital surgeon.— The testimony of a hos- pital surgeon, or nurse, shall be taken before a referee, in connection with a negligence action, the referee being ap- pointed by the judge before whom that action is proceeding; but the surgeon or nurse may also be subpoenaed, in which case a copy of the order for the issuance of the subpoena shall be served together with the subpoena. Code Civ. Pro. % 836. 10. Expenses incurred in serving subpoenas are not, as a general rule, necessary disbursements under Code Civ. Pro. §311 ; Pierrepont v. Lovelass, 4 Hun, 681. 11. When a party to the action is to be examined at any time before the trial, his attendance must be obtained by sum- mons, and an ordinary subpoena is insufficient. But where 502 BRADBURY'S LANSING'S FORMS AND PRACTICE. Subpoenas. such party is to produce papers, a subpoena duces tecum is proper. Bleeeher v. Carroll, 2 Abb. Pr. 82. 12. Paper in witness's possession. — A witness, who has in his possession, while in court and testifying, a paper desired in the action, should be directed by the judge to produce it. Boynton v. Boynton, 25 How. Pr. 490. But an oral direction by an appraiser that a witness pro- duce books and papers, is not equivalent to a subpoena duces tecum, it seems, and the witness cannot be punished for disobeying. Matter of Bishop, 40 Misc. 64; 81 Supp, 252. 13. Penalty for disobeying subpoena. — It is a criminal contempt to wilfully disobey a subpoena, and a contempt pun- ishable civilly to refuse or neglect to obey the subpoena. Code Olv. Pro. §§ 8-14. Penalty for disoheying subpoena duces tecum. — "Where the duces tecum clause is disobej'^ed, although the rest of the sub- poena is obeyed, the witness is liable to the aggrieved party for the latter's damages. Lane v. Gole, 12 Barb. 680. Fined, and must pay damages. — A person who fails, with- out reasonable excuse, to obey a subpoena, is liable for the damages sustained by the aggrieved party, and fifty dollars be- sides ; and if he is a party to the action in which he is sub- poenaed, the court may, as an additional punishment, strike out his pleading. Code Civ. Pro. § 853. Requisites in action for damages. — That the person was duly subpoenaed, that he was a material witness, that damages re- sulted from his nonattendance, that he had no reasonable ex- cuse for his absence, and that the party who caused him to be subpoenaed is not himself at fault (as for neglecting to continue paying witness fees), are essential facts, in an action by the aggrieved party against the witness for not attending. Courtney v. Baker, 3 Den. 27 ; Carrington v. Hutson, 28 Hun, 372. If no damage is caused. — A fine may be imposed, however. COMMON FORMS. 503 Subpoenas. though no injury was caused. Code Civ. Pro. § 2284 ; People ex rel. Dufus v. Brown, 46 Hun, 320. 14. Time allowed witness.— A reasonable time in which to reach court is allowed a person subpoenaed ; he need not travel on Sunday, but he must not limit himself to 30 miles a day. Wilhie v. Chadwick, 13 Wend. 49. It is unreasonable to require a person subpa3naed at 12 ra. Saturday to attend at 3 : 30 p. m. the same day, and he will be excused on comparatively slight grounds for disobedience. Chalmers v. MeMlle, 1 E. D. Smith, 502. 15. Subpoena deces tecum. — If books or papers are desired at a trial, a subpoena duces tecum should be issued, or a court order obtained. Even if the person having the desired papers is a party to the action, a subpoena duces tecum should be is- sued. Code Ci/v. Pro. § 86T ; Central National Bank of JV. Y. V. Arthur, 32 Superior Ct. 194 ; Pruden v. Tollman, 6 Civ. Pro. R. 360. Code Civ. Pro. %% 867, 868, which have reference to sub- poenas duces tecum, are applicable to hearings in special pr'o- ceedings. Holmes v. Stietz, 6 Civ. Pro. E. 362 n. Tirne to he given witness under subpoena duces tecum. — A subpoena duces tecum to produce a book of account, must be served at least five days before the trial day ; and it seems that this is the case with any subpoena duces tecum, although the Code is not clear on that point. Code Civ. Pro. § 867. The same time must be given, to a witness whose deposition is sought under a commission from the court of another State, if the production of a paper is required. Pule 17, Gen. Pules Prac. ; Code Cw. Pro. §§ 914, 915. Disclosure of secrets. — A subpoena duces tecum must be obeyed, although valuable business secrets be disclosed. John- son Steel Street-Rail Co. v. North Branch Steel Co., 48 Fed. 191. 16. What may be produced under duces tecum. — Books of account must be produced for inspection on an accounting 504 bhadburY's Lansing's forms and practice. Subpoenas. before a referee, when directed by an order or a subpoena du- ces teoum ; where, and for how long, these books are to be kept, are matters for the referee to decide. Elsworth v. Hin- ton, 23 Abb. K C. 374; 10 Supp. 40. Piece of iron y patterns. — A template [piece of sheet iron], however, cannot be directed to be -produced by subpoena dvr ces tecum, nor can patterns for stove castings. Johnson Steel Street-Rail Go. v. Worth Branch Steel Co., 48 Fed. 191 ; Case of Shephard, 3 Fed. 12. Watch. — Production of a watch cannot be compelled by subpoena duces tecum. Hunter v. Allen, 35 Barb. 42. A record, of which a transcript, duly certified, may be read in evidence, shall not be removed by subpoena duces tecum except temporarily, by the court clerk, or by an officer hav- ing it in custody ; but records kept by the Register of either New York or Kings County shall not be removed except by order of the Supreme Court or the County Court. Code Civ. Pro. §866. 17. Description necessary. — The papers desired should be described. See John O^TooWs Estate, Tuck. 39. 18. On whom served, — In the case of a corporation, the sub- poena duces tecum should be issued to the president, or other head, or to the oiHcer in charge of the books or papers desired Code Civ. Pro. § 868. On the cashier, and not on a clerh, of a bank, it seems, a subpoena duces tecum should be served to produce the bank's books. Bank of JJtica v. Hillard, 5 Cow. 153. 19. Powers of commissioner from another State.— Al- though by a subpoena duces tecum, a commissioner appointed by a court of another State may compel the production of books before him, there is no authority for a court order requiring the person so subpoenaed to deposit such books with the com- missioner. Matter of Randall, 87 App. Div. 245 ; 84 Supp. 294. COMMON FORMS. 505 Subpoenas. 20. In attachment proceedings A suhpcena. duces tee oral or written., but for prudential reasons should usually be written and filed with the records of the case. 512 Bradbury's Lansing's forms and practice. Suggestions on the Record. Form No. 313. Suggestion in Open Court of Death of a Party. To be Entered in minutes.' In open court this day of , 19 — , A. B., Esq., the attorney for the plaintiff, suggested to the court the death of 0. D., one of the defendants iu this action, and upon motion of said A. B., and on consent of E. F., Esq., attorney for the defendants, it is ordered that this action abate as to said C. D. Form No. 314. Suggestion that an fnfant Party has attained His Kajority. To be Entered on the Minutes. A. B., the attorney for the plaintiff (defendant) in this ac- tion, suggested to the court that C. C, the plaintiff (defend- ant) had attained his majority, and upon motion of said A. B., and upon consent of E. F., counsel for the , it was ordered, that this action proceed in favor of (against) C. D., as a plaintiff (defendant) of full age and that the name of L. M., as guardian ad litem of said C. D., be dropped from the title of said action. ' The above form, with such variations as will be readily suggested, may be used in any case where the death of a party may properly be indicated by a suggestion on the record. COMMON FORMS. 513 Tender. XXVIII. TENDEE.! FORMS. NO. PAGE. 315. Notice of acceptance of _ tender after action brought 525 1 . A tender is an offer by one party to pay or give some- thing to another, made because of some obligation on the part of the one making the tender, it being evident that the thing offered can be actually delivered at once, if the party to whom the offer is made, accepts. Often, either a deposit in court or a payment into court follows tender. The subject of tender is closely allied to that of Payment Into Cottet (p. 427) and also to that of Offee of Judgment, (p. 407). The latter topic, however, relates rather to an offer of liquidation, in its technical sense, of a claim, without fur- ther litigation, and tender is an attempt to satisfy a claim. 2. The effect of a proper tender of the amount due may be either to entirely defeat the action, in which case judg- ment is rendered for the defendant dismissing the complaint, or for the plaintiff dismissing a counterclaim, or it may have the effect merely of throwing the costs of the action on the plaintiff from the time the tender is made. Or again, it may defeat a lien of a mortgage, in which case foreclosure will be denied, although the plaintiff may secure a personal judgment against the mortgagor in a proper case, if the tender has not been kept good. 3. Tender before and after suit. — Important results fol- low the determination of the question whether a tender has been made before or after a suit has been brought. For if a proper tender of a money demand is made before the suit is brought, which tender is followed by a payment into court after the action is brought, the defendant is entitled to a judg- ment dismissing the complaint. Fallon v. Farher, 30 Misc. 626 ; 62 Supp. 742. Also in such a case the tender as well as 1 See Form No, 290, ante, p. 431. Vol. 1—33 514 Bradbury's Lansing's forms and practice. Tender. the payment into court need be usually only the amount due, with interest, if any, up to the time the tender was made. The tender under such circumstances is a defense to the action which should be set up in the answer. Becker v. Boon, 61 ]Sr. Y. 317 ; Breunich v. Weselman, 100 IST. Y. 609. The effect of a tender before suit is determined by the common law and is not affected by the provisions of the Code. Cass V. Higenbotam, 100 E". Y. 248. If a tender is made before the commencement of the action and the money is subsequently paid into court and notice thereof is pleaded, it is the duty of the court to nonsuit the . plaintiff, if there is no dispute as to the facts. Cleveland v. Toby, 36 Misc. 319 ; 73 Supp. 544. 4. A tender after suit is governed entirely by Code Civ. Pro. §§ 731 et seq. In this case it is allowed by statute and has the effect merely of saving costs from the time it is made. The amount tendered, however, as well as the amount which must be paid into court to keep the tender good must include interest and costs incurred up to the time the tender is made. It is not a defense to the action and need not be pleaded. The effect is merely that if the plaintiff does not recover a sum greater than the tender the defendant is entitled to have the costs of the action taxed in his favor from the time the tender was made. Ellenstein v. Klee, 12 Misc. 112; 33 Supp. 94. And where after a judgment in favor of the defendant is re- versed, he makes a tender to the plaintiff, such tender must in- clude costs which are awarded to the plaintiff to abide the event. Storer v. Chasse, 9 Misc. 45 ; 29 Supp. 291. 5. Tender before service, Ibut after the summons is placed in the hands of the sheriff for service, is good as a tender before suit brought. Knight v. Beach, 7 Abb. Pr. (N. S.) 241. Also if made the same day a summons is dated, but before actual service. Kelly v. West, 36 Super. Ct. (J. & S.) 304. See also Brown v. Ferguson, 2 Denio, 196. 6. If, with interest added, the amount of the recovery is greater than the amount tendered, the defendant has a COMMON FORMS. 515 Tender. right, under analogous cases, to have interest added to the amount of the sum tendered to determine whether or not the amount tendered was as much as the recovery.' 7. Necessity of payment into court after tender. — A tender after suit brought is of no avail to the defendant un- less the money is accepted or paid into court ; Code Oiv. Pro. § 732 ; " and notice thereof in writing served upon the plaintiff's attorney before the trial and within ten days after the tender." Id. Unless the statutory notice is given the tender and payment into court are ineffectual. Wilson v. Doran, 110 K Y. 101. Tender before suit must also be followed by payment into court after the suit is brought, to make the tender good, if the demand is for money only and the tender is not conditional, "although this rule of law is established by the courts and not by statute. Wilson v. Doran, 110 N. Y. 101 ; Railway Ad- vertising Co. V. Posner, 31 Misc. 783 ; 65 Supp. 226. 8. In what courts tender after suit may be made. — The provisions of the Code as to tender after suit are applicable only to actions in the Supreme Court, the County Court and the City Court of New York. Tender before suit, however, being governed by the rules of the common law, may be pleaded in any court. 9. Acceptance of tender. — The plaintiff has ten days in which to accept the tender after suit. Code Civ. Pro. § 732. This time cannot be shortened by the fact that the tender is made in less than ten days before the trial. Herman v. Ly- ons, 10 Hun, 111 ; Sares v. Matthews, 15 Supp. 510. Thus, where the case is brought to trial within less than ten days after the tender is made and the plaintiff's recovery is less than the tender, the plaintiff is still entitled to costs. Herman V. Lyons, lO Hun, 111 ; 8ares v. Matthews, 15 Supp. 510. A serious question might arise perhaps over the right of a 1 See cases under subdivison Offbr of Judgment, ante, pp. 407 et seq. 516 Bradbury's Lansing's forms and practice. Tender. plain tiif to accept a tender, made less than ten dajs before the trial, after the trial had taken place and resulted in a verdict for the defendant, if it was not for the doctrine that money once deposited in court to make good a tender belongs absolutely to the plaintiff, regardless of the final result of the trial. Gass v. Higenhotam, 100 N. Y. 248 ; Taylor v. Brook- lyn El. B. Co., 119 N. Y. 661. In such a case, therefore, the plaintiff would be entitled to the amount tendered and depos- ited in court notwithstanding the verdict, nor would the de- fendant be entitled to costs from the time of the tender as it was a nullity. Sares v. Matthews, 15 Supp. 510. 10. The amount tendered and paid into court belongs to tlie plaintiff irrespective of the result of the trial. — Taylor V. Brooklyn El. R. Co., 119 IT. Y. 561 ; Murray v. Bethune, 1 "Wend. 191 ; Spalding v. Vandercook, 2 Wend. 431; Slack V. Brown, 13 Wend. 390 ; Johnston v. Colunibia Ins. Co., Y Johns. 315 ; Wilson v. Boran, 110 N. Y. 101 ; but is an admission only as to the amount tendered and the de- fendant may defend a claim for any greater sum on any ground consistent with the admission. Wilson v. Doran, 110 N. Y. 101. 11. If, however, the tender is conditional, that is, for ex- ample, if a bailee offers to deliver goods in his possession, if the bailor will pay him a certain amount, and the bailee re- fuses to deliver the goods, the tender is good, if properly made, without being followed by a payment into court, after suit brought. Cass v. Higenbotam, 100 N. Y. 248. " If a deposit were made without a delivery of the goods the pledgor might lose his money and afterwards fail to obtain his goods or be left to an action for the recovery of the same. A tender of performance may always be restricted by such con- ditions as by the terms of the contract are conditions prece- dent, or simultaneous, or proper to be performed by the party to whom tender was made." Cass v. Higenbotam, 100 K". Y. 248, at p. 253, citing Wheelock v. Tanner, 39 N. Y. 481. Common i-orms. 517 Tender. It has been held that a tender after suit by an indorser on a promissory note, upon condition that the note be delivered to him, is insuflBcient to relieve the defendant from interest and costs, unless the tender is kept good by paying the money into court. Osterman v. Goldstein, 32 Misc. 676 ; 66 Supp. 506. An offer of money " in payment of all claims " is not such an unconditional offer as is necessary to make a valid tender. Shiland v. Loeb, 58 App. Div. 565 ; 69 Supp. 11. If there is no dispute as to the amount of the debt, a tender may always be restricted by such conditions as by the terms of the contract are conditions precedent or simultaneous to the payment of the debt or proper to be performed by the party to whom the tender is made. Hatpin v. Phenix Insurance Co., 118 K Y. 165; Wheelooh v. Tanner, 39 N". Y. 481; Bailey v. County of Buchanan, 115 N. Y. 297. Thus one liable to pay money secured by written instrument has the right as a condition of tender and payment, to demand a sur- render of the instrument. Bailey v. County of Buchanan, 115 N. Y. 297. 12. Demanding receipt. — A tender made on condition that it pay or extinguish the debt which is accepted, binds the creditor and compels him to admit that the sum tendered is the whole amount due and estops him from asserting the con- trary. But if a party says " I will not pay you this money unless you give a receipt for it as the whole amount due," this is not a legal tender. Haljpin v. Phenix Insurance Co., 118 N. Y. 165 ; Ifoyes v. Wyckoff, 114 N. Y. 204. 13. Present ability to perform.— A tender implies not only readiness and ability to perform, but actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to es- tablish a waiver there must be an existing capacity to per- form. EddyY. Damis, 116 N. Y. 247 (see especially cases cited on p. 2M); Leash v. Dew, 102 App. Div. 529, 92 Supp. 891 ; Bolton v. Arnsler, 95 Supp. 481. 518 Bradbury's Lansing's forms and practice. Tender. 14. A mere verbal offer to pay is not a tender ; the money must be actually produced unless the creditor makes the ten- der an idle ceremony by a declaration that he will not ac- cept. People V. White, 28 Hun, 289 ; Bakemam, v. Pooler, 15 Wend. 637; Eolmes v. Holmes, 12 Barb. 137; afiE'd 9N. Y. 525. 15. How tender made. — A $6,000 cash tender, $5,550 of which was in gold or legal tender notes, and $450 in United States or national bank notes, no objection to the character of the tendered notes having been made at the time, was held sufficient. Bristol v. Mente, 79 App. Div. 67 ; 80 Supp. 52 ; afl'd 178 N. Y. 599. In an action to rescind a contract for the purchase of stock on the ground of fraud, it is not necessary that the plaintiff tender the stock to the defendant before bringing the action, provided he does nothing in affirmance of the contract and nothing that could in any manner mislead or prejudice the de- fendant after discovering fraud, and provided in his complaint he offers to return the stock and produce it upon the trial to be surrendered. Chisholm v. Eisenhuth, 69 App. Div. 134; 74 Supp. 496. In an action to set aside a settlement for a loss under a fire insurance policy, on the ground that the settlement was in- duced by fraud, an offer to return the draft given in set- tlement is sufficient if made in the complaint, and the draft is produced at the trial to be delivered up and cancelled. Berry V. American Central Ins. Co., 132 N. Y. 49. The defendant in a partition action sought the plaintiff's in- terest on the ground that he had a previous contract therefor with a third person, who had conveyed that interest to the plaintiffs ; the defendant alleged readiness and ability to per- form the contract, but though he had before the trial tendered the plaintiffs the consideration (mining stocks) he could not tender it at the trial ; Held that he need not, but that provision should be made in the decree for the doing of this at a later time. Heyman v. Swift, 91 App. Div. 352 ; 86 Supp. 584. COMMON FOKMS. 519 Tender. 16. A check, if not objected to, is, for the purposes of a legal tender, the equivalent of money. Wright v. Robinson, 84 Hun, 172 ; 32 Supp. 463. And in such a case, if the amount is paid into court, and the answer alleges that fact, it is not necessary to bring the check into court to keep the tender good, and such a tender stops the running of interest. Wright v. Mobinson, 84 Hun, 174 ; 32 Supp. 463. A check if objected to, is not good as a tender. Block v. Oarfiel, 30 Misc. 821 ; 61 Supp. 918 ; Grussy v. Schneider, 50 How. Pr. 134. 17. That the check is uncertified does not make the ten- der defective unless objection is made at the time on that ground. Bunte v. Schumann, 46 Misc. 593 ; 92 Supp. 806. An objection that a tender was defective, in that although the party tendering said he had a certified check, this check was not shown, cannot be raised, where the refusal of the ten- der was positive and unqualified. Simonson v. Lauch, 105 App. Div. 82 ; 93 Supp. 965. 18. Promissory note. — A tender at the bank at the ma- turity of a promissory note, of the amount thereof with in- terest, before action, followed by the payment into court of the amount due, is not a bar to recovery of interest upon the note unless such deposit in the bank has been continued and kept good until the payment into court. Riley v. Gheesman, 75 Hun, 387; 27 Supp. 453. If the money requisite to pay a note is at the place of pay- ment upon the due day, and the tender is kept good, this is a sufficient tender to defeat an action on the note. Schmidt v. Hoffman, 18 Misc. 225 ; 41 Supp. 477. Tender to an attorney who is in possession of a note, on condi- tion that the note be surrendered in its existing condition, made after the action was begun, is sufficient, although the money is not deposited in court, as the defendant would have a right to have the note delivered up to him and therefore is not under obligation to deposit the money. Osterman v. Goldstein, 31 Misc. 501 ; 64 Supp. 555. 520 Bradbury's Lansing's forms and practice. Tender. 19. Mortgage ; foreclosure ; keeping tender good. — " It seems to be well settled that where the whole amount secured to be paid by a mortgage is due and payable, tender of pay- ment of the full amount due constitutes a good defense to an action for the enforcement of the mortgage, without the ten- der being kept good, and a plea of the tender contained in an answer interposed in such an action will be sustained, although it is not averred that the tender has been kept good and there is no offer to keep it good." SchiecTc v. Donohue, 77 App. Div. 321 ; 79 Supp. 233 ; JVelson v. Zoder, 132 N. Y. 288 ; Tut/dll V. Morris, 81 N. T. 94. But where the mortgagor by an afBrmative action seeks to cancel the lien of the mortgage by reason of the previous tender, he must show that the tender has been kept good. Tuthill v. Morris, 81 E". T. 94. And in order to make out a tender and refusal which wiU discharge the lien of the mortgage, the proof should be very clear that it was fairly made and deliberately and intentionally refused by the mortgagee or someone duly authorized by him and that sufficient opportunity was afforded to ascertain the amount due or at least, that a sum was absolutely and unconditionally ten- dered which was sufficient to cover the whole amount due; and the burden of proof to show all these facts is on the party alleging the tender. Tuthill v. Morris, 81 N. Y. 94. While such a tender extinguishes the lien, so far as the action to foreclose the mortgage is concerned, it does not discharge the debt or the covenants of the mortgagor to pay the debt and for this he still remains liable. Nelson v. Zoder, 132 N. Y. 288. So the debtor to avoid paying interest subsequentl}"- ac- cruing, or, if he wishes to demand some affirmative relief, must keep the tender good. Nelson v. Zoder, 132 N. Y. 288. Where by the terms of the mortgage, the mortgagee cove- nants to release a portion of the mortgaged premises upon pay- ment of a specified portion of the sum secured, a tender of the amount specified is not available in an action to foreclose a mortgage as a basis of affirmative relief, that is, the release of the portion specified, unless the tender has been kept good and the money paid into court. Werner v. TugK, 127 N. Y. 217. COMMON FORMS. 521 Tender. 20. Demanding satisfaction of mortgage. — A tender of the sum due under a mortgage may always be upon condition that the mortgagee execute and deliver to the mortgagor a satisfaction of the mortgage. Halpin v. Plienix Insurance Go., 118 JSr. Y. 165. 21. Holiday. "Where an option on stock which was re- quired to be exercised within a certain time, the last day of which was a holiday (New Year's Day), it was held that the tender might have been made on such holiday, and that the time to make the tender was not extended until the next day by operation of law. Page v. Shainwald, 169 N. Y. 246. 22. A tender before the due date is unavailing, at least unless interest is added. People v. White, 28 Hun, 289 ; Wyc- Tcoff V. Anthony, 11 W. Dig. 345. If a mortgage is payable on demand tender cannot be made until after demand of payment. jyoyes V. Wychoff, 114 JST. Y. 204. 23. To whom made. — Usually a tender must be made to the creditor personally or to someone authorized to accept it. Hornby v. Cramer, 12 How. Pr. 490 ; Hargons v. Lahens, 5 Super. Ct. (3 Sandf.) 213 ; Levy v. Burgess, 64 JST. Y. 390. But where a creditor voluntarily absented himself from the place where the payment should be made, under circumstances which indicated that hd was trying to avoid the debtor, it was held that a tender to a person found at the creditor's residence was good. Smith v. Smith, 2 Hill, 351 ; Judd v. Ensign, 6 Barb. 258. 24. Affecting interest. — Pleading a tender before trial with a statement in the answer that the defendant is ready and willing to pay the plaintiff said sum, this sum not having been deposited in court prior to the service of the answer, is insuffi- cient to protect the defendant from the payment of costs and interest. FaLhenberg v. Bash, 33 Misc., 607; 67 Supp. 1111. If tender is made after suit is brought interest cannot be 522 Bradbury's Lansing's forms and practice. Tender. recovered from the time the tender is made. Code Civ. Pro. §733. Payment of the ^imount into court at the time or before the service of the answer is necessary to constitute a good tender before action brought. Falkenherg v. Bash, 33 Misc. 607; 67Supp. 1111. Failure to include interest and costs up to the time payment is made into court under a tender after suit brought, is in- effectual and the plaintiff is entitled to a full bill of costs. Bernstein v. Levy, 34 Misc. 772 ; 68 Supp. 833. A plea of tender before suit which is not kept good by pay- ment into court does not stop the running of interest. Craig V. Robinson, 33 Misc. 779 ; 67 Supp. 969. Eeadiness and willingness to pay a mortgage is not sufficient to stop the running of interest where there has been no formal tender. Czoch v. Bean, 35 Misc. 729 ; 72 Supp. 402. 25. When party is excused from making tender. — If the party declares that he will not accept a tender of a certain sum upon the ground that it is insufficient, the one seeking to make the tender is not obliged to actually offer the money. Murr V. Western Assurance Co., 50 App. Div. 4; 64 Supp. 12. A real estate owner's absolute refusal to deal with a pur- chaser brought to him by his broker excuses an omission of tender at the time by the purchaser, the point being raised in an action by the broker against the owner for commissions. Moore v. Boehm, 45 Misc. 622 ; 91 Supp. 125. A formal tender of a lease was held unnecessary in a case in which the defendant repudiated the contract for the lease. Pittshurg Amusement Co. v. Ferguson, 100 App. Div. 453 ; 91 Supp. 666. 26. Basis of aiiirmative relief. — The effect of a tender is to stop interest and prevent costs and to be effectual for such purposes, must be kept good by the debtor, and whenever he seeks to make it the basis of affirmative relief, it must be paid into court where the creditor can get it and that fact must be COMMON FOHMS. 523 Tender. alleged in the pleading. Wright v. Robinson, 84 Hun, 174 ; 32 Supp. 463. An affirmative actiontoxmded upon a tender cannot be main- tained in any case unless the tender has been kept good and the amount paid into court, and that fact must be alleged in the pleading. Wermrv. Tuch, 127 N. Y. 217; Breunioh v. Weselman, 100 N. Y. 609 ; Halpin v. Fhenix Insurance Oo., 118 ]Sr. Y. 165 ; Bay v. Strong, 29 Hun, 505. A party seeking affirmative equitable relief to which he is entitled upon paying an unliquidated amount, need not tender the amount before bringing suit, provided he offers in his complaint to pay or perform. Zebley v. Farmers' Loan & Trust Go., 139 IST. Y. 461. 27. A tender must be pleaded to be available as a defense. Ridenherg v. Ely, 90 N. Y. 257. The promises, of the defendant to accept goods and the plaintiff to deliver goods, being concurrent and mutual, the party suing for breach of contract must plead performance or tender thereof. Armstrong v. Heide, 47 Misc. 609 ; 94 Supp. 434 ; Pope v. Terre HomU Car <& Mfg. Co., 107 N. Y. 61. 28. Rescinding tender. — Eelief from a tender was granted to the party vi^ho made it and who paid the sum into court, where he found he had made a mistake of fact, and where he had been permitted to amend his answer and set up a coun- terclaim, demanding an affirmative judgment. Mann v. Sprout, 102 App. Div. 60 ; 92 Supp. 372. 29. Waiving notice of payment into court. — When a ten- der is made before action is commenced, it may be treated as a nullity, unless the money is paid into court and notice to that effect is served with the answer, alleging the tender as a defense. But this is a matter of practice and if the answer is received and retained without raising an objection to the omis- sion of the plaintiff to serve notice of payment into court, the plaintiff may be deemed to have taken issue upon the plea of 624 bradbuey's laNsing's forms and practice. Tender. tender and waived the irregularity. Smith v. Slosson, 89 Hun, 568, 573 ; 35 Supp. 547. " Waiver must be shown by some positive act or declara- tion upon the part of the creditor." Bolton v. Amsler, 95 Supp. 481. 30. Trial after tender not accepted. — If a tender is made after the commencement of the action, and the amount is paid into court, together with a sum sufficient to cover the costs of the action up to the time of the tender, then it is the duty of the court to instruct the jury to render a verdict in favor of the plaintiffs for the amount of the tender, if no other amount is in dispute, or that they may render a verdict for the whole amount of the disputed claim. If the jury finds for the plaintiffs for an amount not exceeding such tender, the defendant is entitled to the costs which accrued after such tender and such costs are to be set oif against the amount of a tender so made. If the defendant's costs exceed the amount of the tender, then a judgment must be entered in his favor for the balance of his costs above the tender. Cleveland v. Toly, 36 Misc. 319 ; 73 Supp. 544 and cases cited. See also Code Civ. Pro. % 734. COMMON FORMS. 525 Verification. Form No. 315. Notice of Acceptance of Tender After Action Brought.^ [Title of action.] Please take Notice that the plaintiff hereby accepts the amount tendered herein, to wit, the sum of dollars in full settlement of the plaintiff's claim. Dated, , 19—. Yours, etc., A. B., Plaintiff's Attorney. To 0. D., Attorney for defendant. State of New York, ) . County of j A. B. being duly sworn deposes and says that he is the at- torney for the plaintiff herein and that he is duly authorized by the plaintiff herein to execute the foregoing acceptance. Sworn to, etc., A. B. XXIX. veeification. FORMS. NO. PAGE. 316. Veriflcatlon by a party 534 317. Verification by officer of a domestic corporation 535 318. Verification of a pleading on belialf of the People of the State, or a public officer in their behalf, by a party who is ac- quainted with the facts 535 ' " If the plaintiff takes out the money paid in he accepts the tender." Code Civ. Pro. § 732. But the plaintiff may go on with the action and if he intends to accept the tender in full settlement such a notice should be served. See Code Civ. Pro. § 734. 526 Bradbury's Lansing's forms and practice. Verification. NO. PAGE. 319. Verification by attorney or agent of foreign corporation, where the allegations are made positively and not on information and belief 536 320. Verification by agent or attorney of foreign corporation where pleading is on information and belief 536 321. Verification by attorney of foreign corporation where the an- swer alleges that the defendant has no knowledge or infor- mation sufficient to form a belief 537 822. Verification by attorney where party is not within the county where the attorney resides or has his office 538 323. Verification by agent or attorney where all the material alle- gations of the pleading are within his personal knowledge. . 539 324. Verification where the pleading is founded upon a written in- strument for the payment of money which is in the posses- sion of the agent or attorney 540 1. In general. — The formal parts of an affidavit of verifi- cation, such as the venue, jurat, etc., are the same as those of other affidavits and are discussed under the title Affidavits, ante, pages 190 et seq. 3. A complaint to be used as a pleading merely, need not be verified, unless, in a particular case, verification is re- quired, by Statute.' Code Civ. Pro. § 523. If, however, it is desired to compel the defendant to put in a verified an- swer the complaint must be verified. Id. Also, the complaint must be verified to enter judgment by default, upon a cause of action for a sum of money only, which sum is liquidated or subject to computation, in lieu of which verification proof must be given before the clerk. Code Civ. Pro. §§ 420, 1212 and 1213. 3. Tlie Code especially requires the foUovring pjeadings to be verified : An answer denying the incorporation of the plaintiff must be verified and must deny the incorporation to raise an issue. Code Civ. Pro. § 1776. In an action against joint debtors, part of whom were not ' See instances following where complaint is required to be verified. COMMON FORMS. 527 Verification. summoned in a former action, the complaint must be verified. Code Civil Pro. % 1938. A return to a writ of habeas corpus, unless made by a sworn public oflBLcer in his official capacity, must be verified. Code Civ. Pro. §2026. InsoVoent debtors. — A petition for the discharge of an insol- vent debtor must be verified. Code Civ. Pro. § 2151. Summary proceedings. — The petition and the answer in summary proceedings to recover possession of real property must be verified. Code Civ. Pro. §§ 2235-2244. Sale of infanfs land. — A petition on the application to sell the land of an infant must be verified. Code Cim. Pro. § 2350. A petition to change the name of an individual or corporation must be verified. Code Civ. Pro. § 2412. A Surrogate may require a petition or answer to be verified in any case. Code Civ. Pro. § 2533. A petition or answer in condemnation proceedings must be verified. Code Civ. Pro. § 3867. 4. Dilatory defenses to be verified. — A defense which does not involve the merits of the action shall not be pleaded un- less it is verified. Code Civ. Pro. § 513. Thus it has been held under the above section that an un- verified answer in an action in a Federal court which denied the citizenship of the plaintiff as alleged in the complaint, did not raise an issue on that point, and the citizenship of the plaintiil must be deemed to have been admitted as alleged. Draper v. Town of Springport, 15 Fed. 328. 5. An amended complaint may be verified after the service of an unverified complaint, as to which an unverified answer has been interposed. Diivdi v. Busch, 13 St. .Rep. 752. But a verification is no part of a complaint and therefore a complaint cannot be amended merely by adding a verification where the original complaint was not verified. George v. McAvoy, 6 How. Pr. 200. If an unverified complaint is served, the plaimiiff cannot sub- 528 Bradbury's Lansing's forms and practice. Verification. aequently verify the complaint and move to set aside an unver- ified answer already served. White v. Bennett, 7 How. Pr. 69. If an unverified complaint is served on two or m,ore de- fendants and a verified complaint upon the others, those upon whom the verified complaint is served must serve verified an- swers. Wendt 1}. Peyser, 14 Hun, 114. 6. Pleadings subsequent to one which is verified. — The general rule is that where a pleading is verified, each subse- quent pleading, except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified. Code Civ. Pro., § 523. 7. The verification of a pleading may be omitted in a case where a party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading. Code Civ. Pro. § 523. "While this section of the Code is taken from an old statute (Z. 1854, c. 75, § 1) the wording has been changed from time to time so that many of the old decisions are inapplicable. The original statute read : " The verification of any pleading, in any court of record in this State, may be omitted in all cases, where the party called on to verify, would be privileged from testifying as a witness to the truth of any matter denied by such pleadings." L. 1854, c. 75, §1. In the old Code of Procedure, the wording was again changed, that statute reading : " The verification may be omitted when an admission of the truth of an allegation might subject the party to prosecution of a ielonj." Code Pro. § 157. All these provisions obviously applied only to a denial either contained in an answer or in a reply to a counter- claim. It was therefore held that the exception was only applicable to cases where the pleading to be answered con- tained allegations, the admission of which would tend to show the party making it guilty of a crime, and not to cases of new matter set up in avoidance of the pleading to be answered or to counterclaims thereto. Fredericks v. Taylor, 52 N. Y. 596. COMMON FORMS. 529 Verification. The last mentioned case was decided in 1873 and a few years later the Code of Civil Procedure was adopted in which the same language was used that is now found therein. Code Civ. Pro. § 523. From the section as it now stands, it is evi- dent that the Legislature intended to permit the verification to be omitted in any pleading, — either a complaint, answer or counterclaim, or a pleading where new matter was set up by way of defense, as the party pleading is now permitted to serve an unverified pleading if he would be privileged from testifying as a witness concerning an allegation or denial con- tained in the pleading. Code Civ. Pro. § 523. A defenda/nt is not excused from verifying Ms answer to a complaint charging him with having confessed or suffered a judgment, or executed a conveyance, assignment, or other in- strument, or transferred or delivered money or personal prop- erty with intent to hinder, delay or defraud his creditors or with being a party or privy to such a transaction by another person, with like intent towards the creditors of that person, or with any fraud whatever affecting a right or the property of another. Code Civ. Pro. § 529. In an aoUonfor libel, the answer to a verified complaint need not be verified. Ooth v. Star Printing Co., 14 Civ. Pro. E. 3. In an act/ion for negligence where the complaint charged that the defendant wrongfully and immoderately drove a team of horses on a public highway while he was drunk, the answer need not be verified, as the complaint in effect charges cruelty to animals, which is crime. Rutherford v. Krause, 8 Misc. 547 ; 29 Supp. 787. In an action for divorce, the answer need not be verified, notwithstanding the verification of the complaint. Code Cw). Pro. § 1757. 8. Counterclaim to unverified complaint. — Where the com- plaint is not verified, and the answer sets up a counterclaim, and also a defense by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the coun- terclaim. Code Civ. Pro. § 527. Vol. 1—34 530 Bradbury's Lansing's forms and practice. Verification. 9 By whom made. — Under Code Cm. Pro. § 525. The verification must be made : (a) By the jparty. (b) If there are two or more pa/rt/ies united in interest and pleading together, by at least one of them who is acquainted with the facts. (c) If a domestic corporation, by an officer thereof. (d) The People of the State, or a public officer in their behalf, by any person acquainted with the facts. (e) A foreign corporation, by an agent or attorney or by inference an officer thereof. (f) If the party is not within the coimty where the attorney resides, or if the latter is not a resident of the State, the county where he has his office and capable of making the affidavit, or if there are two or more parties united in interest and plead- ing together, where neither of them is acquainted with the facts is within that county and capable of making the affi- davit ; by his or their agent or attorney. (g) If the action or defense is founded upon a written in- strumefit for the payment of money only, which is in the pos- session of the agent or attorney, by the agent or attorney. (h) Where all the material allegations of the pleading are within the personal knowledge of the agent or attorney, the verification may be made by such agent or attorney. 10. An oflScer of a domestic corporation must be deemed a party within the meaning of Code Cim. Pro. § 525, subd. 1, and § 526, and when he verifies a pleading upon informa- tion and belief, he need not state the grounds of his belief as to the matters not stated upon his knowledge. Henry v. Brooklyn Heights B. Co., 43 Misc. 589 ; 89 Supp. 525. 11. A director of a domestic corporation is an officer thereof" within the meaning of Code Civ. Pro. § 525, and may verify a pleading. Eastham v. York State Tel. Co., 86 App. Div. 562 ; 83 Supp. 1019 ; Bigelow v. Whitehall Mfg. Co., 1 City Ct. Kep. 138 {McAdam, J.) COMMON FORMS. 531 Verification. 13. An agent of a domestic corporation may verify a pe- tition to initiate summary proceedings to dispossess a tenant from real property ; the petition need not be verified by an officer of the corporation. Matter of Stivyvesant Real Estate Co., 40 Misc. 205 ; 81 Supp. 642. 13. Teriflcation by foreign corporation. — The verifica- tion of a pleading by a foreign corporation may be made by the agent or the attorney for the party ; Code Civ. Pro. § 525 ; but if such agent or attorney has not positive Icnowl- edge of the facts set forth in the complaint, he must set forth in the affidavit of verification the grounds of his belief as to all the matters not stated upon his knowledge. Code Civ. Pro. § 526. An officer of a foreign corporation is an agent of the cor- poration and in the affidavit of verification must set forth the grounds of his belief as to all matters not stated upon his knowledge. Pohinson v. Ecuador Development Co., 32 Misc. 106 ; 65 Supp. 427. But where the verification of an answer is made by an attorney, in which answer it is stated that the defendant has no knowledge or information sufficient to form a belief as to any of the allegations contained in the com- plaint, it is not necessary in the affidavit of verification to state the grounds of the belief. Am. Audit Go. v. Industrial Fed. of America, 84 App. Div. 304; 82 Supp. 642. 14. Where the affidavit of verification is made by a person other than the party, he must set forth in the affi- davit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party. Code Civ. Pro. § 526. 15. " The reason why it is not made by the party."— It had been usual, prior to the decision in Robinson v. Ecua- dor D&o. Co., 32 Misc. 106 ; 65 Supp. 427, in verifying a pleading by a corporation, to make the statement that the reason why the verification was not made by the defendant 532 bradbtjry's Lansing's forms and practice. Verification. (plaintiff) was that the defendant (plaintiff) was a foreign (do- mestic) corporation. In the decision, last above cited, how- ever, Mr. Justice Gaynor says : " He need not set forth the reason why it is not made by the party, for that would be senseless in the case of a corporation, which cannot take an oath." This provision of Code Civ. Pro. % 526, thei'efore, applies only to natural persons and not to corporations. 16. Agent or attorney ; personal knowledge. — A verifica- tion by an agent or attorney is sufficient without assigning any reason why it is not made by the party, where it states that all the material allegations are within his personal knowl- edge. Betts v. Krindell, 13 Civ. Pro. K. 157; 20 Abb. N. C. 1. A verification by an attorney in which it is shown that he is more familiar with the facts than is the petitioner himself, if the facts recited in the petition show that they are such that they must have been almost entirely, if not wholly, within the personal knowledge of the attorney, is sufficient as stating grounds why the verification was not made by the petitioner himself. Matter of Mahoney, 88 App. Div. 140 ; 84 Supp. 229. 17. All allegations positive. — The verification of a com- plaint in the usual form that the allegations therein are true except as to those which are therein stated to be alleged upon information and belief, and that as to those deponent believes it to be true, where all of the allegations in the complaint are positive, is equivalent to an unqualified verification that the al- legations of the complaint are true to the knowledge of the affiant. Kieley v. Barron c& Cooke S. & P. Co., 87 App. Div. 317 ; 84 Supp. 306. 18. Averments positive but verification shows allega- tions are on information and belief. — If the verification is made by an attorney, to a complaint wherein all the aver- ments are positive, nothing being alleged upon information and belief, and the verification is in the usual statutory form, but COMMON FORMS. 533 Verification. with the addition that the sources of the deponent's informa- tion as to the facts alleged in the complaint, are conversa- tions with plaintiff, etc., or with the defendant, or that his in- formation comes from any other source, it thus appears by the complaint and the verification that the affiant has made oath to facts not within his knowledge and the verification is there- fore defective and may be so treated by the party upon whom the pleading is served. Moran v. Self, 52 App. Div. 481 ; 65 Supp. 113 ; Morris v. Fowler, 99 App. Div. 245 ; 90 Supp. 918. 19. If an attorney verifies a complaint without authority from the plaintiff, the action may be dismissed. Timpson v. MooTc, 105 App. Div. 299 ; 94 Supp. 664. 20. A substantial compliance with Code Civ. Pro. % 526, prescribing the form of the verification of pleadings, should be enforced. Morris v. Fowler, 99 App. Div. 245 ; 90 Supp. 918. 21. An answer verified by one only, which should be verified by both defendants, cannot be returned as it is good as to the defendant who verifies it. Hull v. Ball, 19 How Pr. 305. 22. One of two partners may verify an answer, as they are united in interest within the meaning of Code Civ. Pro. § 525, and if such unity of interest appears by the pleading it need not be stated in the affidavit of verification. Paddock V. Palmer, 32 Misc. 427 ; 66 Supp. Y43. 23. The remedy for a defective verification of a pleading is to treat the same as an unverified pleading. Code Civ. Pro. §528. The rule above applies of course to an original pleading and not to one which is subsequent to the service of a verified pleading. Where the copy of a pleading is served without a copy of a sufficient verification, in a case where the adverse 534 Bradbury's Lansing's forms and practice. Verification. party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence, to the attorney of the adverse party, that he elects so to do. Id. An answer which is returned under this section must be accompanied by a notice pointing out specifically the particu- lars in which the verification is defective. Snape v. Gilbert, 13 Hun, 494. A remedy in such a case is to treat the pleading which is defectively verified as a nullity, and not by motion to compel a verification. Ralph v. Husson, 51 Super. Ct. 515. 24, Evidence. — If the verification is made by a party, the statements contained in the pleading are evidence against him on the trial. Morell v. Cawley, 17 Abb. Pr. 76. But not if the verification is made by a person not a party. Bowen v. Powell, 1 Lans. 1. 25. Pleading as affidavit. — A verified pleading or petition is deemed an affidavit. Code Civ. Pro. § 3343, subd. 11. Form No. 316. Verification by a Party. (Code Civ. Pro. § 526.) State of New Tokk, \ . County of ) A. B., being duly sworn, deposes and says that he is the plaintiff (defendant) in the above-entitled action ; that the foregoing complaint (answer) is true to the knowledge of de- ponent, except as to the matters therein stated to be alleged on information and belief and that as to those matters he be- lieves it to be true. Sworn to before rae, etc. A. B. COMMON FORMS. 535 Verification. Form No. 317. Verification by Officer of a Domestic Corporation. (Code Civ. Pro. § B25.) State of New Yoek, County of > ss. : A. B., being duly sworn, deposes and says that he is an offi- cer, to wit, the of the Company, the plaintiff (defendant) in the above-entitled action ; that the foregoing complaint (answer) is true to the knowledge of de- ponent except as to the matters therein stated to be alleged on information and belief and that as to those matters he believes it to be true. Sworn to before me, etc. A. B. Form No. 318. Verification of a Pleading on Behalf of the People of the State or a Public Officer in their Behalf, by a Party who is Acquainted with the Facts.^ (Code Civ. Pro. § 525.) State of New Toek, I County of r - A. B., being duly sworn, deposes and says that he is {here state any connection which the deponent might have had with 1 The Code does not seem to allow a verification on information and be- lief where the people of the State or a public officer in their behalf is a party. Code Civ. Pro. §525, Subd. 2, provides : "Where the people of the State are, or a public officer, in their behalf, is the party, the verification may be made by any person acquainted with the facts." There seems to be no exception to this except the one implied from Code Civ. Pro. §626. 536 Bradbury's Lansing's forms and practice. Verification. the transactions set forth in the pleading) ; that he is ac- quainted with the facts set forth in the foregoing complaint (answer) and that the said complaint (answer) is true to the knowledge of deponent (except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true). Sworn to before me, etc. A. B. Form No. 319. Verification by Attorney or Agent of Foreign Corporation, Where the Allegations are Made Positively and Not On Information and Belief.^ State of New Yoke, County of ■ • A. B., being duly sworn, deposes and says that he is the at- torney (agent) for the plaintiff "(defendant) in the above-en- titled action and that the foregoing complaint (answer) is true to the knowledge of deponent except as to the matters therein stated to be alleged on information and as to those matters he believes it to be true. Sworn to before me, etc. A. B. Form No. 330. Verification by Agent or Attorney of Foreign Corporation Where Pleading is on Information and Selief. State of New Yoek, ) County of ■ ) A. B., being duly sworn, deposes and says that he is the attorney (agent) for the plaintiff (defendant) in the above-en- 1 See paragraphs 13, 16 and 17, ante, pp. 531, 532. COMMON FOHMS. 537 Verification. titled action. That the foregoing complaint (answer) is true to the knowledge of deponent except as to the matters therein stated to be alleged on information and belief and that as to those matters he believes it to be true. The sources of de- ponent's knowledge and the ground of his belief as to all the matters not stated upon his knowledge in said complaint (an- swer) are as follows : {Here state concisely the manner in which the affiant acquired hnowledge of the facts as, for example, as follows ;) Deponent has had a large number of conversations with the officers of the plaintiff (defendant) in this action and has inspected the correspondence between the plaintiff and the defendant and has also read certain contracts mentioned in the complaint executed by the plaintiff and the defendant, and has had negotiations with the defendant relating to a pro- posed settlement of the controversy between the plaintiff and defendant and his information regarding the facts set forth in the complaint (answer) has been derived from such interviews, consultations and inspection of papers and documents.^ Sworn to before me, etc. A. B. Form No. 331. Verification by Attorney of Foreign Corporation Where the An- swer Alleges that the Defendant has no Knowledge or Information Sufficient to form a Belief.^ (Code Civ. Pro. §§ 524-526.) State and Oottntt of New Yoke, ss. : A. B., being duly sworn, says that he is the attorney for the above-named defendant ; that he has read the foregoing 1 While tlie above statement would be sufficient for a verification to a pleading, which was to be used solely as such, it would be insufficient if the pleading was to be used as an affidavit, in which case the conversa- tions themselves and copies of the documents and correspondence should be set forth. 2 The foregoing form was sustained in Am. Audit Co. v. Industrial Fed- eration of Am., 84 App. Div. 304 ; 82 Supp. 642. 538 beadbuet's Lansing's foems and peactice. Verification. answer ; that the same is true to the knowledge of the depo- nent, except as to those matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true, and' that the reason why this verification is not made by the defendant is that the said defendant is a foreign corporation. Sworn to before me, etc. A. B. Form No. 332. Verification by Attorney Where Party Is Not Within the County Where the Attorney Resides or Has His Office. State of New York, ) . County of j A. B., being duly sworn, deposes and says that he is attor- ney for the plaintiff (defendant) in the above-entitled action; that the foregoing complaint (answer) is true to the knowl- edge of deponent except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true. Deponent further says that he resides at , in the County of -, State of 'Sew York, and the reason why this verification is made by deponent and not by the plaintiff (defendant) is that said plaintiff (defend- ant) is not within said County of where the depo- nent resides, and capable of making the affidavit. Or, Deponent resides in the State of New Jersey and has his office in the County of New York, and the plaintiff (defend- ant) is not within said County of New York and capable of making the affidavit. 1 The statement in the last sentence of this form is unnecessary. Bob- inson v. Ecuador Dev. Co., 32 Misc. 106 ; 65 Supp. 427. COMMON FORMS. 639 Verification. Or, Deponent resides in the County of New York and the plain- tiffs herein are united in interest, and neither of said plaintiffs who is acquainted with the facts in this case is within said County and capable of making the affidavit of verification. {If in either case, the pleading is on information and helief, the grounds of the affiants helief as to all the matters not stated in the complaint as heing within his knowledge, should he set forth.) Sworn to before me, etc. A. B. Form No. 333. Verification by Agent or Attorney Where all the Material Alle- gations of the Pleading are Within his Personal Knowledge. State of New York, \ . County of j A. B., being duly sworn, deposes and says that he is the agent (attorney) for the plaintiff (defendant) in the above-en- titled action ; that the foregoing complaint (answer) is true to the knowledge of deponent, except as to the matters therein stated to be alleged on. information and belief and that as to those matters, he believes it to be true. That the reason this verification is made by deponent and not by the plaintiff (defendant) is that all the material allegations of said com- plaint (answer) are within the personal knowledge of depo- nent. Sworn to before me, etc. A. B. 540 Bradbury's Lansing's forms and practice. Verification. Form No. 324. Verification Where the Pleading is Founded Upon a Written In- strnment for the Payment of Money Which is in the Possession of the Agent or Attorney. State of New Toek, > County of ) ^^" * A. B., being duly sworn, deposes and says that he is the agent (attorney) for the plaintiff (defendant) in the above- entitled action ; that the foregoing complaint (answer) is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief and that as to those matters he believes it to be true. The reason this veri- fication is made by deponent and not by the plaintiff (de- fendant) is that the cause of action (defense, counterclaim) herein is founded upon a written instrument for the payment of money only, the original of which is in the possession of deponent. Sworn to before me, etc. A.B. CHAPTER VI. ATTOENEYS. Abticle I. Admission to pbactiob. II. Disbarment. III. Compensation. IV. Lien. V. Actions and proceedings betw: client. VI. Substitution of attorneys. VII. Other incidents op the relation. attorney and 1. ADMISSION TO PKAOTICE. FORMS. NO. PAGE. 325. Affidavit in support of application for permission to try the bar examination 548 326. Certificate of satisfactory college standard 550 327. Certificate of commencement of clerkship 551 328. Affidavit of service of clerkship 552 329. Certificate of law school attendance 553 330. Paragraph to be inserted in affidavit in place of paragraph re- garding graduation from a college 553 331. Certificate of good moral character 554 332. Oath to be subscribed by person admitted 554 1. An attorney at law is an oBBcer of a court of justice who by reason of a retainer, express or implied, from a party, manages a cause for that party. Must he licensed. — A person cannot practice as an attorney at law in any of the courts of record of the State, nor in any court in the counties of New York and Kings without being regularly admitted to practice as such. Mule 1, Ct. Appeals Rules for Adm. Attys. ; L. 1898, c. 165, as am'd L. 1899, c. 225. Nor can he in any manner advertise or hold himself out to be 541 542 BEADBtJBY'S LANSING'S FORMS AND PBACTICB. Admission to Practice. an attorney or counselor at law without being thus admitted. Id. A violation of this statute is a misdemeanor. Id. But a party may prosecute or defend a civil action in person, whether he is an attorney at law or not. Code Cm. Pro. § 55. Injustices' courts in counties other than New York and Kings a party may appear and prosecute or defend in person or by attorney at his election. Code Civ. Pro. § 2886. But it is held that an attorney at law as such cannot " appear " in a justice's court so as to bind the client by any action taken by him and that the provisions of § 2886 refer to an attorney in fact who acts as the duly authorized agent of the party. Mc- Lear v. Reynolds, 76 App. Div. 267 ; 78 Supp. 457. And when the case is iinally submitted in a justice's court the authority of the attorney ceases. Beardsley v. Pope, 88 Hun 560 ; 34 Supp. 846 ; McLear v. Reynolds, 76 App. Div. 267 ; 78 Supp. 457. But the authority of an attorney in a justice's court may be shown by his own sworn testimony. Code Civ. Pro. % 2890 ; Beardsley v. Pope, 88 Hun, 560 ; 34 Supp. 846. 2. Bar examination. — Admission to the bar, in the case of residents of New York State, is now given only upon examin- ation. To be entitled to take this examination, certain prelim- inary proofs are required and they must be strictly com- plied with. Code Civ. Pro. § 56. Applicants inust he citizens of the State, and of the United States, at least 21 years old. They may be of any race and of either sex. Code Civ. Pro. § 56. In charge of State Boa/rd.- — The examinations are in charge of the State Board of Law Examiners appointed by the Court of Appeals. An examination is held, in several parts of the State, each January, April, June and October. Topics covered. — The topics covered by the Bar Examina- tion are as follows : Pleading and Practice, Keal Property, Contracts, Partnership, Negotiable Paper, Principal and Agent, Principal and Surety, Insurance, Bailments, Sales, Evi- dence, Criminal Law, Torts, "Wills, Equity, Corporations, Do- mestic Relations, and Constitution of New York State. ATTORNEYS. 543 Admission to Practice. 3. Preliminary proofs.— The preliminary proofs of an ap- plicant must be filed with the Secretary of the State Board of Law Examiners at Albany at least fifteen days before the ex- amination. An examination fee of $10, entitling the appli- cant to three examinations, must be paid at the time the application is filed. The papers must have the caption " Ap- pellate Division of the Supreme Court, Department. In the Matter of the Application of A. B., for Admission to the Bar." An applicant may be examined in any judicial department whether a resident thereof or not, but the fact of his having passed wiU be certified to the Appellate Division of the judicial department in which he has resided for the six months prior to his examination. Gt. of App. Rules for Adm. of Attys. 4; Mules of the State Board of Law Examiners. The following table shovys the requirements : College Graduate. Proof of graduation, by diploma, or by certificate of graduation, under the seal of the college; and proof that the college maintains a standard sat- isfactory to the Regents of the Uni- versity of the State of New York. The latter is necessary, no matter how well-known the university. If it is registered with the Regents, a certificate of satisfactory standard may be obtained from the Regents at Albany, the fee therefor being 25 cts. If it is not so registered, satisfactory proof must be offered as to the course of study completed by the applicant and as to the character of the college. One not a College Graduate. A certified copy, from the clerk of the Court of Appeals, of a Regents' Law Students' Certificate, showing that the requirements therefor were fulfilled either before the applicant began his law clerkship or within one year thereafter. This certificate is granted by the Regents if the appli- cant: (a) Has passed Regents' examina- tions in English composition, ad- vanced English, first year Latin, arithmetic, algebra, geometry. Uni- ted States and English history, civics and economics; or equivalents for this entire group. It may be granted by the Regents if the applicant: (6) Produces a certificate of having successfully completed a full year's course of study at any college; or (c) Produces a certificate of hav- ing satisfactorily completed a three years' course in any institution regis- 544 BRADBURY S LANSING S FORMS AND PRACTICE. Admission to Practice. CoLLBQB Graduate. Proof by affidavit of the attorney and the appUcant that the applicant has served a regular clerkship in the attorney's office, over the age of 18, for two years, and that the attorney was during these two years a practic- ing attorney of the Supreme Court in this State; i that not more than two months' vacation was taken each year; 2 and that the attorney caused a certificate of the commencement of this clerkship to be filed with the clerk of the Court of Appeals,^ or Proof by certificate of a law school and affidavit of the applicant that the applicant, after the age of 18, attended a law school for two school years (of at least 8 months each) and that such attendance was regular, or Proof of one year's clerkship and one school year in law school.i (See Rule 5, Ct. Appeals Rules for Adm. of Attys.) One not a College Graduate. tered by the Regents as maintaining a satisfactory academic standard; or (d) has a Regents' Diploma. Proof by affidavit of the attorney and the applicant that the applicant has served a regular clerkship in the attorney's office, over the age of 18, for three years, and that the attorney was during these three years a practic- ing attorney of the Supreme Court in this State; i that not more than two months' vacation was taken each year; 2 and that the attorney caused a certificate of the commencement of this clerkship to be filed with the clerk of the Court of Appeals ,3 or Proof by certificate of a law school and affidavit of the applicant that the applicant, after the age of 18, attended a law school for three school years (of at least 8 months each) and that such attendance was regular, or Proof of one year's clerkship and two school years in law school, or Proof of two years' clerkship and one school year in law school. 1 1 An applicant, although attending law school and also serving a clerk- ship, cannot duplicate the time, but he can spend three months of his vaca- tion from law school and count it toward his period of law study. Rule 5, Ct. Appeals Rules for Adm. Attys. 2 Give exact date of beginning and end of each vacation taken. 3 This certificate may, in a, proper ease, be filed nunc pro tunc. The ap- plicant seeking an order for this purpose should show by affidavit that the omission was not due to his negligence. Rule 7, Id. ATTORNEYS. 545 Admission to Practice. And, in Either Case, Send with, the application ten dollars, by check, money order or cash. Proof by applicant's affidavit that he is a citizen of the United States, at least 21 years old, and that he has not been examined, and been refused admission, within three months immediately preceding the examination at which he intends to apply ; that he has for the six months immediately preced- ing the examination at which he intends to apply, resided in the judicial department in which he entitles his papers [giv- ing street and number], such residence being actual and not constructive ; that he is the applicant above named, and the person mentioned in the accompanying papers ; that the preliminary conditions prescribed by the rules of the Court of Appeals for the admission of attorneys and counsel- ors at law, have been fulfilled ; and that he has studied law in the manner and according to the conditions of said rules. All the papers are to be attached together, having on the outside the caption: "Appellate Division of the Supreme Court, Department. In the matter of the application of A. B., for admission to the Bar." They are to be sent to the Secretary of the New York State Board of Law Exam- iners, Room 41, Bensen Building, Albany, N. Y. They should be sent as early as possible, so that amendable defects may be remedied. A person who was a Ioajo cleric in New York City, hut had heen admitted to the Bar in New Jersey, but did not remain in New Jersey as a practicing attorney for at least one year after his admission there, was denied permission to take the Bar Examinations in this State. Rule If., Ct. 4-P2>- Rules for Adrn. of Attys. ; Matter of Simpson, 167 IST. Y. 403. Indian admitted to examination. — A statute was passed in 1906, permitting a certain Seneca Indian, not a citizen, to take the State Bar Examination, if otherwise qualified ; and direct- ing that he be admitted to practice, if he should pass the ex- amination. L. 1906, G. 135. Vol. 1—85 546 bradbuby's Lansing's forms and practice. Admission to Practice. May exempt law school graduates. — An amendment to Code Civ. Pro. % 58, made in 1905, provides that nothing contained in Code Civ. Pro. §§ 56, 57, prevents the Court of Appeals from dispensing with clerkship or examination, in favor of a candidate who is a graduate of one of certain specified law schools (naming the principal ones of this State). No such exemption is now given. See Matter of Cooper, 22 N. Y. 67. 4. Proof of good moral character. — Though he has re- ceived notice that he has passed the examination, a candidate is not allowed to practice as an attorney until his proofs as to good moral character have been approved. As to this, separate rules apply in the different judicial departments. After a candidate's moral character has been approved, the Appellate Division enters an order admitting him to practice as an attorney and counselor in all courts of the State, the applicant's certificate from the examiners, and his proofs as to good moral character, having been filed with the clerk of the Appellate Division. The candidate must then take the oath of office in open court and subscribe this in a book kept by the clerk of the Appellate Division in the department in which he is admitted. Code Civ. Pro. § 69. Decision not reviewable.— In ordinary cases, the Qourt of Appeals will not review the exercise of the discretionary power of the General Term as to the moral character of an applicant. Matter of Beggs, 67 N. Y. 120. 6. Eegistration with clerk of Court of Appeals. — Every person admitted to the Bar must subscribe an oath as to his admission, which must be filed in the office of the Clerk of the Court of Appeals. He must pay to the clerk 25 cents, as a fee for filing. The appearance of the name of a person in the official register of attorneys which is kept by the clerk of Court of Appeals is presumptive evidence that he is duly reg- istered to practice. L. 1898, c. 165; L. 1899, c. 225; L. 1900, cs. 133, 558. ATTORNEYS. 547 Admission to Practice. 6. Admission of citizen of another State or country. — Any person who has been admitted to the Bar, and has prac- ticed three years as an attorney in the highest court of law in another State, and any person who has thus practiced in another country, or who, being an American citizen and dom- iciled in a foreign country, has received such degree therein as would have entitled him, if a citizen of such foreign coun- try, to practice law in its courts, may, in the discretion of the Appellate Division, provided he possesses the other qualifica- tions required by the rules of the Court of Appeals, for the admission of attorneys, be admitted and licensed without an examination. He must produce satisfactory proof of char- acter and qualifications. Ot. of App. Bules for Adm. of Attys. 4. Resident of adjoining State. — A person who resides in an adjoining State, upon compliance with these requirements, may, without change of residence, be admitted to practice on sufficient proof that he intends forthwith to open and per- manently to maintain an office for the transaction of law busi- ness in this State. Id. No absolute right to admission. — No citizen of another State or country has an absolute right to be admitted to practice in this State. The matter is in the discretion of the Appellate Division. Matter of Henry, 40 N. T. 560. Italian lawyer refused admission. — A citizen of the United States, born in Italy, who had practiced there, was in 1896 refused admission by the Appellate Division for the First De- partment, on the ground that the law of New York State had too little in common with the law of Italy. Matter of Maggio, 27 App. Div. 129 ; 51 Supp. 1055. 548 Bradbury's Lansing's forms and practice. Admission to Practice. Form No. 335. Affidavit in Support of Application for Permission to Try the Bar Examination,' Appellate Division of the Supreme Coitbt FOK THE Judicial Department. In the Matter of the Application 1 of ■ I A. B. r For Admission to the Bar. State of , ) County of , ) A. B., being duly sworn, deposes and says : That he is the ap- plicant above named; that he is a citizen of the United States, and resides at No. Street in the City of , County of , in the judicial department. That he has resided in said department as aforesaid for at least six months last past, and such residence is and was during the said six months, actual, and not constructive. That he is a graduate of a University, to wit, of University of ; that he graduated therefrom on the day of , , with the degree of , as will more fully appear by deponent's diploma therefrom, under the seal of said University herewith produced, and marked Exhibit A. That said University maintains a satisfactory college standard in the course leading to the degree , as will appear from the College Registration certificate given under 1 This afSdavit, and exhibits A, B, C, D, and E, , were in June, 1906, held satisfactory as preliminary proofs by the State Board of Law Examiners. Exliibit A. was a certificate from a college that the ap- plicant had graduated witli the A. B. degree. Exhibits B, C, D, and E,' will be found post. Tliis applicant, having a college degree, had two years' law study, instead of the three yeai-s required of those not college graduates. One year was spent as a law clerk, and one school year as a law school student. ATTORNEYS. 549 Admission to Practice. the seal of the University of the State of New York, here- with produced, and marked Exhibit B. That deponent is years of age and has not been examined for admission to the bar within the three months immediately preceding this application. That he is the ap- plicant herein named and the person mentioned in the an- nexed proofs ; that the preliminary conditions prescribed by the rules of the Court of Appeals for the admission of attor- neys and counselors at law, have been fulfilled ; and that he has studied law in the manner and according to the condi- tions of said rules. Deponent further states that on the day of - 19 — , he commenced the service of a regular clerkship in the law offices of C. D., a practicing attorney of the Supreme Court of the State of New York, at No. • Street, in the City of , New York State. That at that time he was over the age of eighteen years and that said 0. D., on the day of , , filed or caused to be filed a certificate of the commencement of said clerkship, in the office of the Clerk of the Court of Appeals. That a certified copy of said certificate of the commencement of said clerkship and proof of filing in the office of the Clerk of the Court of Appeals is hereto annexed and marked Ex- hibit C. That deponent served a regular clerkship in the office of said 0. D., beginning on the day of . , and ending on the day of , and beginning again on the day of , , and ending on the day of , . That dur- ing the service of said clerkship, not more than two months vacation was taken in any one year by the said A. B. ; the beginning and end of each vacation taken by him was as fol- lows : From the day of , , to the day of , ; from the day of to the day of , . That hereto annexed is the affidavit of the attorney with whom such clerkship was served, showing the actual service of such clerkship, the continuance and end thereof, and the beginning 550 Bradbury's Lansing's forms and practice. Admission to Practice. and end of each vacation taken by deponent during said clerk- ship. That said affidavit is marked Exhibit D. Deponent further alleges that he was in regular attendance upon the law lectures and exercises of the Law School situated at No. ■ Street in the City of , during one school year of not less than eight months, to wit, from the day of , , to the day of , . Deponent further states that he at- tended the said Law School during the school year of , , but that such attendance was not regular. De- ponent further alleges that he was of the age of ■ years when he commenced his attendance upon the sessions of said school, as above mentioned. The certificate of said law school given under its seal and signed by the of said school as proof of such time of said attendance upon said law school is hereto annexed and marked Exhibit E. Subscribed and sworn to, etc. Form No. 336. Certificate that the College from which the Applicant was Grad- uated Maintains a Satisfactory Standard.' Ex. B. University of the State of JS'ew York. New York State Education Department. College Eegisteation Certificate. It is hereby certified that University, at- is registered as maintaining a satisfactory college standard in the course leading to the degree . [Seal. J Albany, N. Y., , 19—. Countersigned by Commissioner of Education. Examiner. 1 This may be obtained from tbe Begents at Albany ; the fee is 25 cts. ATTORNEYS. 551 Admission to Practice. Form No. 33t. Certificate of Commencement of Clerkship.* Ex.0. I, the undersigned, a practicing attorney of tHe Supreme Court of the State of New York, do hereby certify that of No. , Borough of , City of , who is upwards of eighteen years of age, has this day commenced a regular clerkship in my law office at No. , City of , State, under the rules of the Court of Appeals for the admission of Attorneys and Counselors at law. Dated, , 19—. Attorney at Law. State of New York, CouET of Appeals, Clerk's Office. I, Clerk of the Court of Appeals of the State of New York, do hereby certify that a certificate, of which the annexed is a true copy, was filed in this office on the day of , one thousand, nine hundred and . In "Witness Wheeeof, I have here- unto set my hand and affixed my [Seal] official seal at the City of Albany, this day of A. D., 19—. Deputy Clerk; 1 This certified copy may be obtained by writing to the clerk of the Court of Appeals at Albany; the fee is f 1.00. 552 Bradbury's Lansing's forms and practice. Admission to Practice. Form No. 338. Affidavit of Service of Clerkship. Ex. D. [Title.] State op — County of- .[ A. B., being duly sworn, deposes and says : That he is and was at and during aU the times herein mentioned, a practic- ing attorney of the Supreme Court of this State, maintaining a law office for the transaction of law business at No. Street, in the City of , New York State. That C. D., the appellant above named, over the age of eight- een years, served a regular clerkship in deponent's law office, as aforesaid, beginning on the day of , , and ending on the day of ■ , , and begin- ning again on the — ■- day of , , and ending again on the day of , . That on the day of , 1904, he filed or caused to be filed a certificate of the commencement of said clerkship in the office of the Clerk of the Court of Appeals. That during the service of said clerkship, not more than two months' vaca- tion was taken in any one year by the said C. J). ; the begin- ning and end of each vacation taken by him being as follows : From the day of , , to the day of , , and from the day of , — , to the day of , . Sworn to, etc. ATTORNEYS. 553 Admission to Practice. Form No. 339. Certificate of Law School Attendance. Ex. E. Law School. I Hereby Certify that Mr. was in attendance at this Law School for the term of school year of not less than eight months. His attendance began on the day of , 19 — , and ended on the day of , 19 — . During this time he was regular in his attendance, and was in good standing in his class. (Seal of Law School.) Dean of Law School and President of Faculty. New York, • , 19—. Form No. 330. Paragraph to be Inserted in Applicant's Affidavit, in Place of Paragraph Regarding Graduation from a College. A regents' law student's certificate was duly issued to me on the day of , , which was filed with the clerk of the Court of Appeals, on the day of , , as also appears by the certified copy of such certificate and the certificate of the filing thereof, hereto annexed, and marked Exhibit . 554 bradbuey's Lansing's forms and practice. Admission to Practice. Form No. 331. Certificate of Good Moral Character, First Judicial Department.' [Title.] I do hereby certify that I am an attorney and counselor at law in the Supreme Court of the State of New York, and have known A. B., the above-named applicant, for more than five years last past, and that he is to my knowledge a person of good moral character. The facts upon which my knowledge, as aforesaid, is based, are as follows : I first met him in in the City of — at Since then I have seen him frequently and especially during - Dated , 1906. Form No. 333. Oath to be Subscribed by Person Admitted to Practice as an Attorney.2 State of New Yoke, ) . • County, j I, ■ being duly sworn (or aflBrmed) do depose and say that I am a natural born citizen of the United States (if nat- uralized, state when and where) and now reside at (or, if a resident of an adjoining State and admitted to prac- tice in the courts of record of this State and whose office for the transaction of law business is within this State, state the 1 This certificate, with another similar to it, was held sufficient by the Committee on Character in the First Judicial Department in July, 1906. DifEerent rules on this point are prescribed in the several departments. In the Second Judicial Department this certificate must be acknowl- edged. 2 See i, 1899, c. 225. ATTORNEYS. 555 Disbarment. fact). That I was duly and regularly licensed and admitted to practice as an attorney at law or as an attorney and coun- selor at law in the courts of record of this State at the term, 19 — , of the Appellate Divis-ion of the Supreme Court (or other court, as the case may be) held at , and that I took the constitutional oath of office. Subscribed and sworn to, before me, this day of , 19—. II. DISBARMENT. FORMS. NO. PAGE. 333. Notice to tiie accused attorney .558 834. Petition in disbarment proceedings 559 335. Order of disbarment 560 1. The duty to disbar. — It is the duty of the court, when it is proved that a member of the Bar has been guilty of dis- honest conduct in his profession, to administer the proper punishment. Matter of Ryan, 143 N. Y. 528. Disbarred ipso facto. — If guilty of deceit, malpractice, crime or misdemeanor, an attorney may be disbarred. If convicted of a felony he ceases ipso facto to be an attorney. If guilty of a misdemeanor under Code Civ. Pro. %% T4, 75, he must be disbarred. Code Civ. Pro. % 67. 2. By whom proceedings are instituted. — Proceedings for disbarment may be made by a private person. Often, a Bar Association brings the charges. , In any case, they are brought before the Appellate Division. Code Civ. Pro. % 67. The prescribed procedure in cases of disbarment, is to issue a formal order from the Appellate Division to show cause why the attorney should not be suspended or removed from office. This order is to be served, personally if possible, on the ac- cused attorney, together with the papers on which it is founded. Matter of Brooklyn Bar Association to punish Benjamin E. Valentine, 92 App. Div. 612 ; 86 Supp. 1130. 556 Bradbury's Lansing's forms and practice. Disbarment. Dismissed for defects. — Proceedings for disbarment will be dismissed for defects in the papers, such as lack of the petition- er's signature ; for the proceeding is quasi-criminal, and the defendant is entitled to know precisely what charges are made against him. Matter of Roe, 81 App. Div. 656 ; 81 Supp. 249. Service iy mail. — An amendment to Code Civ. Pro. § 68, made in 1903, provides that service of disbarment charges on the attorney accused can be made without the State, by mail or otherwise, if the court is satisfied that he cannot be served within the State. Code Civ. Pro. § 68. Certainty of proof. — Charges in disbarment proceedings, which if proved will result in the extreme penalty of disbai'- ment, must be established beyond a reasonable doubt. Matter ofMashbir, 44 App. Div. 632; 60 Supp. 451. Pleadings, not evidence. — The papers on which the order to show cause, in disbarment proceedings, are based, are pleadings, not evidence. Matter of Eldridge, 82 N. Y. 161. Not criminal proceedings. Although quasi-criminal, dis- barment proceedings are not criminal proceedings, and the rule that there is no presumption against him, if he does not take the stand in his own defense, does not apply to the ac- cused attorney. Matter of Randel, 158 N. Y. 216. The Court of Appeals may review an order of the Gen- eral Term suspending an attorney. Matter of Eldridge, 82 N. Y. 161. 3. Surrogate who practices as attorney. — A surrogate, in a county having a population of 120,000, is, it seems, at once suspended from practice. If. Y. Const. Art. 6, § 20 ; Matter of SiUcmMn, 88 App. Div. 102; 84 Supp. 1025. Remedy of impeachment exclusive. — If a surrogate in a county having over 120,000 population does practice, an order to show cause wliy he should not be suspended from practic- ing law while surrogate is not proper ; the remedy of impeach- ment given by the New York State Constitution, Art. 6, § 11, is exclusive. Matter of Silkman, 88 App. Div. 102; 84 Supp. 1025. ATTORNEYS. 557 Disbarment. 4. The power to discipline — -In disciplining attorneys, the court is not limited to the punishment prescribed in Code Civ. Pro. § 67, but power may be exercised under the general con- trol founded upon the fact that an attorney is an officer of the Supreme Court ; in this case, the punishment imposed was a reprimand in open court. Matter of Reif Schneider, 60 App. Div. 478 ; 69 Supp. 1069. Must retain good character. — It is as important for an at- torney to retain good moral character, as to have it when ad- mitted ; and if it is proved that an attorney's general char- acter is bad, he should be disbarred. Matter of Percy, 36 N. Y. 651. 5. Grounds for disbarment. — An attorney who instituted a suit against a corporation in the name of a client who owned no stock in it, and who himself made affidavit that the client did own stock, was disbarred ; and it was held no defense that the acts complained of were committed outside the State and in the United States Court and with respect to the process of that court. Matter of Lamb, 105 App. Div. 462 ; 94 Supp. 331. Paying outsider to obtain retainers. — For an attorney to pay an outside person to obtain retainers for him is a misde- meanor within Code Civ. Pro. §§ 74, 75. Matter of Clarlt, 184 K Y. 222 ; aflf'g 108 App. Div. 150 ; 95 Supp. 388. But this does not apply to agreements between attorneys to divide fees. Code Civ. Pro. § 74. Selling out client. — It is malpractice under Code Civ. Pro. § 67, for an attorney to agree, for pay, with the party he is about to sue, that the claims against such party are to be settled, and that he is to write " conciliatory letters " to his clients, advising them to settle. Matter of ClarTt, 184 N". Y. 222 ; aff'g 108 App. Div. 150 ; 95 Supp. 388. Directing illegal seizure. — Disbarment was imposed on an attorney for directing a sheriff in a replevin action to seize property not described in the writ and for refusing to let the owner make an inventory, he having previously been sus- 558 Bradbury's Lansing's forms and practice. Disbarment. pended for professional misconduct. Matter of Goldberg, 49 App. Div, 357] 63 Supp. 392. Form No. 333. Notice to the Accused Attorney.* To A. B. : Please Take Notice that a petition and charges of C. D., (or the C. D.), verified , charging that you have been guilty of deceit and malpractice as a counselor and attorney, and certain affidavits thereto annexed ; (here recite names of makers of the affidavits and dates of verification), copies of which petition and cliarges and affidavits are hereto annexed and herewith, served upon you, will be presented to the Ap- pellate Division of the Supreme Court of the State of New York for the Departiaent, at the Court Koom of said Court, at , New York City, on tlae day of , , at o'clock in the noon, or as soon thereafter as Counsel can be heard, and an applica- tion then and there made to said Court to take such action upon such charges as, in the judgment of said Court, justice may require. Dated, . E. F., Petitioner's Attorney, Office and Post Office Address, etc. 1 This form, and Nos 334, 335, post, are taken from tlie case of Matter of Bandel, 168 N. Y. 216, in which the attorney was disbarred. ATTORNEYS. 559 Disbarment. Form No. 334. Petition in Disbarment Proceedings. To the Appellate Division of the Supreme Court of the State of New York, Department. The Petition of 0. D., (or the C. D.), by E. F., its attorney, respectfully represents and charges, upon information and be- lief, as follows : 1. That A. B., on or about , was duly admitted to practice as a counselor, etc. 2. That the said A. B. has been guilty of deceit and mal- practice in his said office of counselor and attorney as herein- after stated. 3. (Here specify the charges in detail.) Wherefore the said petitioner respectfully submits this matter to this Honorable Court, and asks that such action be taken therein as justice may require. Dated, . C. D., E. F., Petitioner's Attorney, Office and Post Office address, etc.. (Yerification.) 560 Bradbury's Lansing's forms and practice. Disbarment. Form No. 335. Peesent, Order of Disbarment. At a Terra of the Appellate Divi- sion of the Supreme Court of the State of 'New York for the Department, held at the Court Eoom of said Court in the City of , on this day of , . P.J. JJ. In the Matter of A. B., an Attorney. Order of Disbarment. C. D. (or the C. D.) having preferred charges of deceit and malpractice against A. B., a counselor and attorney practic- ing in the Judicial District, by a petition verified -, accompanied by affidavits in support thereof. (here recite names of makers of affidavits and dates of verification) ; and a copy of said petition and affidavits having been duly served upon said A. B., with due notice of the time and place at which they would be presented to this Court ; and the said A. B. having duly interposed a written answer to said charges, verified , and this Court hav- ing thereupon, by an order dated , appointed G. H., a referee to take testimony in regard to said charges, and to report the same, with his opinion thereon to this Court, and testimony having been duly taken before said referee, and the said referee having duly made a report dated , wherein he reported, among other things, that said charges ATTORNEYS. 561 Compensation. were, in his opinion, fully proved ; and said report, with the evidence taken upon said reference, having been duly filed, and the said A. B. having filed exceptions, dated , to said referee's report, and due notice of motion to over- rule said exceptions and confirm said Eeferee's report hav- ing been duly served, dated ■, ; and said mo- tion having been duly brought on for argument ; after hearing E. F., of counsel for said 0. D., (or the C. D.), in support of said motion, and I. J., of counsel for said A. B., in opposition thereto ; and due deliberation having been had ; Now, upon aU the papers, testimony and proceedings herein- before recited, it is hereby Ordered and Adjudged that said motion be and hereby is granted ; that said exceptions be and hereby are overruled ; and that said referee's report be and hereby is confirmed. And it is further Ordered and Adjudged that the said A. B. be and hereby is disbarred and removed from his office as a counselor and attorney at law of the State of New York ; and it is further Ordered and Adjudged (directions as to compensation of referee and stenographer). Enter, , (P. J.) III. COMPENSATION. 1. Employment and performance both necessary. — The two important factors, when the question has to do with an attorney's fees, are employment and performance. If he did legal work but it is not proved that he was engaged to do so, or recognized, he cannot recover. Uotchkiss v. Ze Hoy, 9 Johns. 142. If, though engaged, he neither did work nor prepared to do so, he cannot recover. Thorn v. Beard, 135 N. Y. 643. What plaintiff must prove. — A client, in defending an ac- tion brought by an attorney for services and disbursements, Vol. 1—36 562 bbadbury's Lansing's forms and practice. Compensation. admits the employment, and the value of the services and dis- bursements, not substantially denying the plaintiff's allega- tions ; judgment for the plaintiff is directed. Pierce v. J^ew- lin, 46 Misc. 122 ; 91 Supp. 377. When relation hegins. — It was held error to refuse to charge that if the defendant went to the plaintiffs and asked the lat- ter, who were attorneys, to probate a will, they could recover ; the defense to the action, which was for services in probating, being that the attorneys were engaged by bankers under an agreement between the bankers and the defendant to collect a legacy. Straley v. Sohnepp, 93 Supp. 1082. iV^(? services performed for six years. — An attorney suing for fees, who has done nothing in his client's behalf for over six years, cannot recover ; either the employment has not been terminated, or the attorney is barred by the statute of limita- tions. McCrea v. Saofield, 86 Supp. 10. The Statute of Limitat/ions does not begin to run, against an attorney's claim for fees, until the action in which he is re- tained is brought to a close. Bathgate v. Haskin, 59 N. Y. 533. 2. Measure of value. — In proceedings to fix the fees of an attorney, the result of the attorney's services is a very impor- tant element in determining their value. Town of Hempstead V. New York City, 86 App. Div. 300 ; 83 Supp. 806. Fifty per cent, not per se unconscionable. — A 50^ fee, if the litigation involves two trials, an appeal to the Appellate Di- vision, several motions and considerable incidental and unusual practice, is not per se unconscionable. Serwer v. Serwer, 91 App. Div. 538 ; 86 Supp. 838. " The general rule is that an attorney, in the absence of an agreement, deserves compensation according to the reasonable worth of his services. Of that the jury are the sole judges and, to arrive at their value, they may consider the nature of the services rendered, the standing of the attorney in his profession for learning, skill and proficiency, the amount involved and the importance to his client of the result." Bandel v. Packard, 142 K Y. 47, 56. ATTORNEYS. 563 Compensation. 3. Percentage on principal and interest. — A client who agrees to pay his attorney a percentage of whatever award may be obtained for his land in condemnation proceedings, must pay to the attorney, when he receives principal and ac- crued interest, the percentage on both. Bassford v. Johnson, 172 ]Sr. Y. 488. Interest on his share only. — An attorney and client having agreed to divide the sum obtained in a suit against the city, but having disputed afterward as to the division, the amount was deposited at different times with the city chamberlain ; and it was held that the attorney was entitled to the interest his share drew while in the hands of the chamberlain, but that he must pay interest at &% on such of his client's share as he held for a time. Deering v. Sohreyer, 110 App. Div. 200 ; 97 Supp. 14. 4. Percentage on annuity. — A person engaged lawyers to break his father's will and agreed to give them, under certain conditions, 10^ ; the settlement was a lump sum and an an- nuity, the payment of the annuity being secured by a deposit with a trust company ; Held, that the attorneys were entitled not only to 10^ of the lump sum, but 10^ each year, of the annuity. Ransom v. Gutting, 112 App. Div. 150. 5. Services under unconstitutional statute. — An attorney is entitled to bis fees for services in trying to sustain a statute, though the desired purpose (drainage of swamps) was not ef- fected because the statute was declared unconstitutional. San- ford v. Branson, 109 App. Div. 835 ; 96 Supp. 859. 6. When contract rescinded. — An attorney may treat a contract with his client to prosecute an action as rescinded, when, after a disagreement of the jury, the client declines to proceed further, or to pay the attorney. Yuells v. Hymam,, 84 Supp. 460. 7. May recover on quantum meruit. — An attorney, plead- ing, in an action against his client, the breach of a written 564 Bradbury's Lansing's forms and practice. Compensation. agreement, may recover the actual value of his services, al- though he fails to prove this agreement. Yuells v. Hyman, 84 Supp. 460. If action is irought in Municipal Court. — When an attor- ney, to vfhom a client agreed to give a percentage of damages obtained from the City of New York in connection with a street opening, sued as for money had and received under his contract of retainer, a defense that the action was brought under Code Cvv. Pro. § 66, and therefore not within the juris- diction of the Municipal Court of the City of New York, was held unavailing. Flannery v. Geiger, 46 Misc. 619 ; 92 Supp. 785. May sue for agreed sum. — An attorney suing for breach of a contract to pay him a percentage on claims to be collected (the defendant having obtained another attorney, who did col- lect those claims) need not prove the work he performed, as on a gua/n,txi,7n meruit j he is suing for an agreed sum. Car- lisle V. Barnes, No. 1, 102 App. Div. 673 ; 92 Supp. 917. ' 8. Cannot appropriate alimony. — An attorney cannot ap- propriate, for his fees and disbursements, alimony awarded to his client. Matter of Bolles, 78 App. Div. 180 ; 79 Supp. 530. 9. Wlien payment not voluntary. — An attorney having threatened to return checks to the maker, unless his client would give him part of the money realized from these checks, and the client thereupon having made a payment to the at- torney, it cannot be said as a matter of law that this payment was voluntary. Heed v. Hayward, 82 App. Div. 416 ; 81 Supp. 608. 10. Costs. — A motion by a defendant, to restore to the cal- endar, for the purpose of determining his right to taxable costs, the action, which defendant and plaintiff had settled, will be denied. Pomeranz v. Marcus, 86 App. Div. 321 ; 83 Supp. 711. Restoration of costs. — ^If, before the making of an order reducing the amount of costs, an attorney pays out the costs ATTORNEYS. 565 Lien. for the account of his client, or appropriates them to pay himself for disbursements made by himself for his client, he cannot be required to restore them ; the action should be against the client. Bichert v. Pollock, 46 Misc. 275 ; 92 Supp. 89. Discontinuance without arranging for costs. — A client, shown to be responsible, may on stipulation discontinue his action, although the stipulation does not provide for his attor- ney's costs. McKay v. Morris, 35 Misc. 5T1 ; 72 Supp. 23. 11. An order to submit to a referee the question of the attorney's fees, made as a rider upon the decision of a mo- tion to compel the attorney to prosecute the action diligently or stipulate that another attorney be appointed, is improper, if it was not part of the issue as framed by the affidavits sup- porting the motion. Luihert v. LuiTcert, 102 App. Div. 53 ; 92 Supp. 97. IV. LIEN. 1. Lien of an attorney. — The lien of an attorney is a claim he has on papers or other property of his client. It is for the purpose of securing the charges for his services and his ex- penses. It is a general lien, as well as a special one, and an attorney may keep the papers in a suit until a general balance in other professional business is liquidated. Bowling Green Savings Bank v. Todd, 52 N. Y. 489. Growing tendency to enforce it. — There is " a growing tend- ency," it seems, " to enforce the attorney's lien at all times when the equities favor it." Smith v. Cayuga Lake Cement Co., 107 App. Div. 524 ;. 95 Supp. 236. 2. The statutory lien. — An attorney has a lien on his cli- ent's cause of action, claim or counterclaim, from the com- mencement of an action or special proceeding, or the service 566 Bradbury's Lansing's forms and practice. Lien. of an answer containing a counterclaim, and this attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come ; and the lien cannot be affected by any settlement be- tween the parties before or after judgment or final order ; the court upon the petition of the client or attorney may deter- mine and enforce the lien. The extension of this section of the Code, making it apply to a special proceeding or claim, and providing the remedy to enforce the lien, was made in 1899. Code Civ. Pro. § 66. Fischer- Hansen v. BrooJclyn Heights B. R. Co., 173 K Y. 492. All the wadd must take notice. — " This is a statutory lien of which all the world must take notice, and anyone settling with a plaintiff without the knowledge of his attorney, does so at his own risk." Peri v. N. Y. Central R. B. Co., 152 N. Y. 521. Applies to sale of judgments. — The words "and the pro- ceeds thereof," in § 66, apply to moneys realized by an as- signee for the benefit of creditors on the sale of judgments recovered by an attorney for the assignors, and the assignee by selling the judgments subject to the lien of the attorney does not reheve himself from any liability." Matter of Gates, 51 App. Div. 350 ; 64 Supp. 1050. Summary decision. — Power to say, summarily, whether or not an attorney's lien exists at all is given by § &Q. Padley V. Oaylor, 98 App. Div. 158 ; 90 Supp. 758. Action under § 66 is proper only hetween attorney and cli- ent. — Proceedings taken by a plaintiff's attorney, under the concluding clause of Code Civ. Pro. § 66, are proper only be- tween attorney and client. Dumowith v. Marks, 84 Supp. 453 ; Rochfort v. Metropolitan Street P. Co., 50 App. Div. 261 ; 63 Supp. 1036. JVo action need have commenced. — A lien attaches although no action or special proceeding has commenced. Mathot v. Trielel, 98 App. Div. 328 ; 90 Supp. 903. Lien independent of statute. — ^This lien exists, independent of statute, as to papers of the client in the possession of the ATTORNEYS. 567 Lien. attorney. Matter of MoGuire, 106 App. Div. 131; 94 Supp. 97. 3. Effect of transfer of action.— The action, in connection with which the attorney has his lien, having been transferred to a United States Court, the courts of New York State nev- ertheless have jurisdiction to foreclose the attorney's lien. Oishei v. Pennsylvania R. R. Co., 101 App. Div. 473 ; 91 Supp. 1034. But in such, a case the client is a necessary party. Id. 4. Lien should be protected. — An attorney who has, as security for his fee, a lien on a judgment, should be protected, and the lien should not be impaired, although the judgment seems uncollectible, the attorney's client is poor, and an offer is made by the judgment debtor to compromise for a smaller amount. Serwer v. Serwer, 91 App. Div. 538 ; 86 Supp. 838. 5. Suit for alienating affections. — The parties in an action for the alienation of the affections of the plaintiff's wife may settle the action, without leaving the settlement subject to the attorney's lien ; the law encourages such settlement, provided the settlement is not collusive, so as to defraud the attorney. Burpee v. Townsend, 29 Misc. 681 ; 61 Supp. 467. 6. When partition suit is settled. — When a partition suit is brought, but settled, no sale of the property being made, the attorney for the plaintiff will not be given leave to continue the partition action for the purpose of enforcing his lien ; but a reference wiU be directed to ascertain the value of the attor- ney's services. Cohn v. Polstein, 41 Misc. 431 ; 84 Supp. 1072. 7. Unconscionable agreement. — Where an attorney seeks to foreclose his lien, his client haying settled the case, the party with whom such client settled may not object that the agreement between attorney and client was unconscionable. Morehouse v. Brooklyn Heights R. Co., 43 Misc. 414 ; 89 Supp. 332. 56S Bradbury's Lansing's forms and practice. Lien. 8. A party to an action is only secondarily liable to the attorney of the adverse party for the amount of his lien, viz : he is only liable when such adverse party Is insolvent and unable to pay his attorney. Ov/rley v. Gruenstein, 44 Misc. 268 ; 89 Supp. 887. 9. Set-off of judgments as affecting attorney's lien. — An application to set off one judgment against another is never a matter of absolute right, but is an appeal to the equitable dis- cretion of the court. Alexander v. Durhee, 112 N. Y. 655 " It cannot be said that a party has an absolute right to have costs awarded in his favor set off against costs awarded against him (luring the progress of the litigation. Applications of this character, when made, are addressed to the equitable discre- tion of the court and must be determined in view of all the equities involved." Matter of Havemeyer, 27 App. Div. 123 ; 50 Supp. 126. There is some confusion in the cases as to the right of set-off of different judgments for costs entered in the same action even though the attorneys are the same. Smith V. Cayuga Lake Cement Co., 107 App. Div. 524, 95 Supp. 236. But "It is settled beyond controversy that the Lien of an at- torney for his services and disbursements in an action is su- perior to that of the parties' right of set-off if the judgments were rendered in separate actions, although between the same parties." Id. To the amount of his lien the attorney is deemed to be the equitable assignee of the judgment. Mar- shall V. Meech, 51 N". Y. 140. " The rule as stated has not been modified." Smith v. Cayuga Lake Cement Co., 107 App. Div. 524 ; 95 Supp. 236. When in an action for malicious prosecution the complaint was dismissed with costs against the plaintiff, and upon appeal the judgment was affirmed with costs, after which the plaintiff brought a new action upon the same facts, for false imprisonment, and succeeded, it was held that the lien of the plaintiff's attorney on the last judgment was superior to the right of set-off in favor of the defendant. Barry v. Third Ave. R. Co., 87 App. Div. 543 ; 84 Supp. 830. And where several judgments were rendered on various ap- ATTORNEYS. 569 Lien. peals ia dififerent courts, but all in the same action, it was held that the attorney's lien was superior to the right of set- off existing in favor of the client. Smith v. Oayuga Lake Cement Co., 107 App. Div. 524 ; 95 Supp. 236. Also where upon a motion to punish a defendant for contempt in supple- mentary proceedings the defendant succeeded on appeal and the plaintiff sought to offset the costs awarded to the de- fendant against the original judgment, the application was de- nied in favor of the lien of the attorney for defendant, on the grounds that the costs belonged to the attorney, that the con- tempt proceeding was an independent proceeding, and as the plaintiff had been in the wrong the court would exercise its discretion to protect the attorney's lien. Oibhs v. Prindle, 11 App. Div. 470 ; 42 Supp. 329. In an equitable action for set- off of two judgments, between the same parties, arising out of the same transaction, and one of which of the two causes of action could have been, but was not, set up as a counterclaim to the other, it was held that the client's right of set-off was superior to the attorney's right as an assignee of one of the judgments, for his services, but the attorney's lien to the ex- tent of his costs (which at that time was the extent of the absolute lien of the attorney) had been protected in the court below. Davidson v. Alfaro, 80 JST. Y. 660. The court re- marked, in the case last mentioned, at page 663 : " It does not seem as clear from the decisions as it ought to be how far this right of lien will stand in the way of a set-off sought in an equitable action." If two judgments are entered in one action when by proper practice only one should be entered for the difference in amount between the two, the court will order both judgments vacated and one entered for the differ- ence ; as in such a case the equities of the parties are superior to the attorney's lien. Warden v. Frost, 35 Hun, 141. While, therefore, the general rule seems to be that where two or more judgments are entered in the same action, the equities of the parties are superior to the attorney's lien and set-off will be allowed (McAdam, J.; Hopper y. Ersler, 38 Supp. 176), this rule, as already shown, is subject to many ex- 570 Bradbury's Lansing's forms and practice. Lien. ceptions and subtle distinctions. The true rule, if ifc can be called a rule, seems to be that as the proceeding is entirely an equitable one and appeals exclusively to the discretion of the court, the court will exercise its discretion in each case to do equity between the parties and their attorneys, whether the judgments are in the same action or not. 10. An order declariug an attorney's lien waived, in a special proceeding brought by the attorney to have his lien determined, is binding on him, and if unreversed, prevents him from recovering against a defendant who has settled with an insolvent client. Randel v. Vanderbilt, 75 App. Div. 313 ; 78 Supp. 124. 11. A sum paid to buy peace, it seems, is not a settlement upon which an attorney's lien attaches. Handel v. Yander- Ult, 75 App. Div. 313 ; 78 Supp. 124. 13. Parties, in action to enforce lien. — An attorney, su- ing a contractor to enforce payment of the lien on monej^s which are to become due the contractor, his client, for the erection of a monument for the State of Iowa, need not make the State of Iowa a party. Mathot v. Triebel, 98 App. Div. 328 ; 90 Supp. 903. 13. What courts may enforce lien. Surrogate's court. — The Surrogate has power to vacate a satisfaction of a decree made in disregard of a lien of attorneys for their fees, a judg- ment having been recovered by the attorneys for such fees. MatUr of Regan, 167 N. T. 338. 14. Waiver of lien. — It is not a waiver, by attorneys, of their lien upon securities, if they enter an order at the con- clusion of the litigation in which they are engaged directing the holder of the securities to deliver them to a new trustee, or if they inclose their bill accompanied by a letter in which they state that they do not wish to impress the lien upon the fund, but wish a check. Matter of King, 168 N. T. 53. ATTORNEYS. 571 Actions and Proceedings between Attorney and Client. 16. A justice of the Municipal Court of the City of New York has no authority to make an order that a satisfaction piece be set aside to the extent of a lien of an attorney for his fee; for this court has no such jurisdiction of an equitable nature as to make such action proper. People v. Jafe, 35 Misc. 456. It seems that an attorney has no lien on his client's cause of action in said court. Id. 16. In the municipal court of the city of Buffalo an at- torney does not acquire a lien on his client's cause of action. Brago v. Smith, 92 Hun, 536; 36 Supp. 9Y5. Y. ACTIONS AND PBOCEEDINGS BETWEEN ATTORNEY AND CLIENT. 1. Relation uberrimae fldel.— The general rule as to trans- actions between attorney and client is that the burden of proof is on the attorney, when sued by the client, to show ab- solute good faith. Even though the attorney has not ap- peared as such in legal proceedings for his client, but has been consulted by him, the onus is on the attorney. Sheehan v. Erie, 103 App. Div. 7 ; 92 Supp. 862. Failure to retnirn money. — The rule applies, if the client is suing the attorney for his alleged failure to return money given him for a specific legal purpose. Purdy v. Wallace, 47 Misc. 163 ; 93 Supp. 608. Presumption against release. — A client having signed a written agreement to save his attorney harmless from any damage growing out of specified transactions, the presump- tion is against the propriety of such release. Kissam v. Squires, 102 App. Div. 536 ; 92 Supp. 873. But where there is no evidence of unfairness, this burden does not rest on the attorney. Werner v. Knowlton, 107 App. Diy. 158 ; 94 Supp. 1054. A retainer, dictated by an attorney, should be construed strictly against the attorney as between such attorney and his client. Mclhiaine v. Steinson, 90 App. Div. 77 ; 85 Supp. 889. 572 Bradbury's Lansing's forms and practice. Actions and Proceedings between Attorney and Client. 2. When rule is inapplicable.— This rule does not apply, when the client sues the attorney for alleged negligence ia making an investment and accepting inadequate security. Schreiler v. Heath, 103 App. Div. 364 ; 92 Supp. 1043. The rule does not apply to an agreement for fees made prior to the establishment of the relation of attorney and client ; moreover, this is a rule of equity and should not be rigorously applied, where, owing to the death of the attorney, his repre- sentatives cannot make complete proof that the agreement was fair. Boyd v. Daily, 85 App. Div. 581 ; 83 Supp. 539 ; aff'd 176 N. Y. 613. 3. Want of skill on part of attorney. — In an action against an attorney for negligence, it is a question for the jury, if the attorney advises his client to plead guilty to an indictment clearly insufficient. Chvelam,d v. Cromwell, 110 App. Div. 82 ; 96 Supp. 475. 4. Settling claim witliout authority. — The damages re- coverable, in an action by a client against his attorney for set- tling a claim without authority, are those shown to exist, and the burden of showing what these are rests upon the plaintiff ; it seems that the same measure of damage is applicable to a negligence case. Yooth v. McEachen, 181 N. T. 28. 5. Summary remedy of client. — When the client seeks to recover money ^vhich he asserts that his attorney is ■with- holding wrongfully, he should apply to the Supreme Court which has power by summary order to compel the attorney to pay. Matter of Mertian, 29 Hun, 459 ; Waterbury v. El- dridge, 5 Supp. 324. Where client accepts notes. — A client who has accepted, in payment of money due him from his attorney, promissory notes of the attorney, cannot compel the attorney, by sum- mary proceeding, to pay these notes, but must be left to his action at law on the notes. Matter of Neville, 71 App. Div. 102 ; 75 Supp. 588. ATTOENEYS. 573 Actions and Proceedings between Attorney and Client. If relation of attorney and client does not exist. — A sum- mary application will not lie against aa attorney by the ad- ministrator of a lunatic to recover moneys given by the com- mittee of the lunatic to the attorney for safekeeping only, the relation of attorney and client not existing. Matter of Red- mond, 54 App. Div. 454 ; 66 Supp. 782. Reference may ie ordered. — If a client seeks by summary proceeding to recover money from his attorney, but the de- cision of the motion turns upon sharply disputed questions of fact, a reference will be directed. Matter of Hammann, 37 Misc. 417 ; 75 Supp. 775, and see Matter of Martin, 73 App. Div. 505 ; 77 Supp. 192. When reference improper. — A client petitioning that his attorney be directed to pay him certain moneys should not be subjected to the expense of a reference, if the facts are not complicated and the proof lies in a small compass. Weiss v. Sohleimer, 86 App. Div. 611 ; 83 Supp. 284. Waiver of right to reference. — If an attorney, sued by his client for a sum of money, there being a contest as to the amount, contends on appeal that a reference should have been directed, this objection is unavailing, the attorney himself hav- ing invited the Justice at Special Term to pass on the matter. Matter of Borhstrom, 63 App. Div. 7 ; 71 Supp. 451 ; Aff'd 168 K Y. 639. Defenses of attorney. — On a petition by a client that an at- torney be directed to repay him money which the former had given him to secure the sureties on an undertaking, the attor- ney asserted a lien ; the attorney's fees were determined, but costs against him equalled this sum ; the attorney then averred that the money had been paid over to the sureties ; Held, that as this point was raised for the first time, and as it was not supported, the court below properly disregarded it. Brenner V. Martin, 91 Supp. 156. Proceeding not properly irought.—lf, in a proceeding to compel an attorney to pay over funds, the petition is signed by one who puts after his signature the words " attorney for the petitioners," but the petition is not signed or verified by 574 bradbuhy's Lansing's forms and practice. Actions and Proceedings between Attorney and Client; either petitioner and all the material allegations are stated to be on information and belief, an order appointing a referee to take proof should not be granted. Matter of Curtis, 51 App. Div. 434 ; 64 Supp. 691. 6. An action at law is in some cases a proper remedy by a client against bis attorney to recover money, and it is the more appropriate remedy when there is a dispute as to the condition of the accounts. Saohett v. Breen, 3 Supp. 473. Demand must he made. — A client, suing his attorney to re- cover money, but offering no proof of a demand for this money, will be nonsuited. Banner v. D'Auby, 34 Misc. 525 ; 69 Supp. 891. Request for action at law. — A Justice at Special Term made an order, in summary proceedings, requiring attorneys to pay certain money to a client, and, at the close of his opinion, wrote that no " request that the petitioner be remitted to an action at law " had been made. Held, that as a request that the petitioner be remitted to his action was made, despite this statement, the order of the Special Term should be reversed. Matter of Pollock, 69 App. Div. 499 ; 74 Supp. 976. May show attorney's deceit. — An executor, suing his attorney in an action at law for money given the latter for his services, has the right to show that the giving of the money was in- duced by the attorney's deceit. Beilly v. Provost, 98 App. Div. 208 ; 90 Supp. 591. 7. Attorneys bound by their clerk's fraud.— If, through fraud practiced on a client by a clerk of her attorneys, the client does not receive the full amount of the percentage due the client on a settlement, the attorneys must pay the sum due. Matter of McOuinness, 69 App. Div. 606 ; 74 Supp. 1054. ATTORNEYS. 575 Substitution of Attorneys. VI. SUBSTITUTION OF ATTOBNEYS. FORMS. NO. PAGE 336. Stipulation for substitution of attorneys 577 337. Order of substitution of attorneys 578 338. Recital in order of substitution preserving lien of attorney 578 339. Notice in case of death or disability of attorney 579 1. Substitution at any time and for any reason — The gen- eral rule is that substitution of attorneys can be made at any time and for any reason. The chief modification of this state- ment is that such substitution must be made on condition that the attorney, whose services are dispensed with, is pro- tected. This may be done if the client gives security for pay- ment of the attorney's fees. Matter of Prospect Ave., 85 Hun, 257 ; 32 Supp. 1013 ; Ogden v. Devlin, 45 Super. 631 ; Wo7f v. Trochelman, 5 Kobt. 611 ; Krekeler v. Thaule, 49 How. Pr. 138. 2. Attorney guilty of misconduct. — If, however, the attor- ney has been guilty of misconduct, an order of substitution may be made without safeguarding him in reference to his fees, leaving attorney and client to settle their dififerences be- fore a court and jury. Matter of Prospect Ave., 85 Hun, 257 ; 32 Supp. 1013 ; Pierce v. Waters, 10 Week. Dig. 432. Extended delay, not sufficientVy excused, in proceeding to en- force a verdict, is ground for substitution on terms. See opin- ion of the referee, in Matter of BarUey, 42 App. Div. 597 ; 59 Supp. 742 ; App. dism'd, 161 N. Y. 647. Services valueless.— The services rendered by an attorney having, because of his failure to use ordinary care, proved of no value, the court should not impose the payment of fees as a condition of a substitution. Reynolds v. Kaplan, 3 App. Div. 420 ; 38 Supp. 764. Where an attorney does not prove that he had justifiable rear son for abandoning his client's case, he is not entitled to com- pensation, and it is improper to grant a substitution of attor- neys on condition that such attorney receive compensation. 576 Bradbury's Lansing's forms and practice. ' Substitution of Attorneys. Gary v. Cary, 97 App. Div. 471 ; 89 Supp. 1061 ; citing Bath- gate V. Raskin, 59 N. Y. 633. 3. How effected. — Substitution of attorneys may be effected either upon motioa or in a summary special proceeding. Tlie latter " seems to be the better practice. The adverse party in the action in which a substitution is sought has no interest in the question, is not entitled to notice, and the application involves no question in the action and is in no sense a pro- ceeding in the action, but is a special proceeding." Matter of Barkley, 42 App. Div. 597 ; 59 Supp. 742 ; App. dism'd, 161 N. Y. 647. Reference may be directed. — Where the client has made a summary application to remove his attorney, the court has power to send it to a referee to fix his compensation. See Dimiok V. Cooley, 3 Civ. Pro. E. 141 ; Bule 10, Gen. Hides of Prac. ; Yuengling v. Betz, 58 App. Div. 8 ; 68 Supp. 574 ; Kane v. Ease, 87 App. Div. 101 ; 84 Supp. Ill ; AfE'd 177 N. Y. 557. 4. Order of substitution too broad. — On a summary ap- plication for a substitution, it is not proper for the court to frame the order of substitution so as to require the attorney to dissolve his connection with his client in all actions in which he is his attorney and give up the papers in those actions upon which he has a lien for his services. Philadelphia v. Postal Telegraph Cable Co., 1 App. Div. 387 ; 37 Supp. 291. 6. On appeal to Court of Appeals. — For the purpose of tak- ing an appeal to the Court of Appeals either party may engage another attorney, and no order of substitution is necessary. Magnolia Metal Co. v. Sterlingworth Co., 37 App. Div. 366 ; 56 Supp. 16 ; Rule 3, Practice Rules of the Court of Appeals. 6. Execution may be issued by a new attorney without an order of substitution. — Thorp v. Fowler, 5 Cow. 446 ; Cook V. Dickerson, 8 Super. [1 Duer] 679. ATTORNEYS. 577 Substitution of Attorneys. 7. Effect of dissolution of law firm.— Two attorneys dis- solved partnership ; a firm client, together \vith one of the former partners, stipulated, consenting to the substitution of this former partner as attorney in an action begun by the firm, for the client ; the right of the client to designate this part- ner was recognized by the court, but the order of substitution was amended by adding a provision that the substitution should be \Yithout prejudice to any lien the firm had. SchneiUe v. Travelers Ins. Co., 36 Misc. 522 ; T3 Supp. 955. 8. Service of the notice only is necessary. — The notice of substitution is all that need be served. The order should be entered. The other attorney is not concerned with the ques- tion how the substitution was effected. Dorlon v. Lewis, 7 How. Pr. 132. Same rule for corporaUons. — To all suitors, including mu- nicipal and other corporations, the same provisions apply, as a general rule. See Parker v. The City of Williamsburg, 13 How. Pr. 250. Form No. 336. Stipulation for Substitution of Attorneys. [Title of action.] It is hereby consented that A. B., of No. Street, City of , be substituted as attorney for the plaintiff (defendant) in the above-entitled action, in the place of C. D. Dated, New York, , 19—. (E. F.) Signature of plaintiff (defendant). (C. D.) Signature of attorney. Vol. 1—37 578 Bradbury's Lansing's forms and practice. Substitution of Attorneys. State of — County of- --,\ ss. On this day of , 19 — , before me person- ally appeared E. F., to me known and known to me to be the individual described in and who executed the foregoing instrument, and who duly acknowledged to me that he ex- ecuted the same. Form No. 337. Order of Substitution of Attorneys. [Caption as of a court order.] On the annexed consents, it is hereby Oedeeed, that A. B., of No. Street, City of -, be and he hereby is substituted as attorney for the plaintiff (defendant) in the above-entitled action in the place of C. D. Enter, (Initials of Justice.) Form No. 338. Becital, in Order of Substitution, Preserving Lien of Attorney. And it is further Oedeeed, that the lien of C. D., as attorney in the above- entitled action, in the sum of $ , shall be and hereby is continued as a lien against the plaintiff 's cause of action, and shall be iirst paid from any sum recovered in this action be- fore any amount is paid to any other person. ATTORNEYS. 579 Other Incidents of the Relation. Form No. 339. Notice in Case of Death or Disability of Attorney. (Code Civ. Pro. § 65.) [Title of action.] To A. B. \pr C. D.], defendant \pr plaintiff] : Sir — You are hereby notified and required, pursuant to the statute in such case made and provided, to appoint another at- torney in the above-entitled action in place and stead of C. E., deceased \or removed, or suspended, or state how otherwise dis- abled from acting], within thirty days after service of this no- tice, upon you, and that in default of such appointment said action will be proceeded with, without such attorney. Dated , 19—. Yours, etc., M. N., Attorney for Plaintiff [or Defendant], No. street, , K Y. YII. OTHER INCIDENTS OF THE RELATION. 1. Appearance presumptive evidence of authority. — ^A general or special appearance in an action in a court of record by an attorney at law is presumptive evidence of the authority of the attorney to so appear. Gutting v. Jessmer, 101 App. Div. 283 ; 91 Supp. 658 ; citing Brown v. Nichols, 42 K Y. 26. 2. Retainer should be explicit. — An attorney is not au- thorized to begin an action in the name of a person, who, when the attorney told her : " I can verify the complaint if you do not refuse to allow me to do so," replied : " I do not refuse anything, you can do as you please, but I will sign no papers except what come to me from Mr. Smith " (her au- thorized attorney) ; and, on motion, the action so brought will be dismissed. Timpson v. Mock, 105 App. Div. 299 ; 94 Supp. 664. 580 buadbury's Lansing's forms and practice. other Incidents of the Relation. 3. Disability of attorney. — A plaintiff suing on a prom- issory note was met with the defense that as he was a lawyer and bought the note to sue on it, no action lay ; but as, al- though admitted to practice, plaintiff never filed a certificate, and had not practiced since about a year after his admission, it was held that he was not an attorney and therefore could recover on the note. Thompson v. Stiles, 44 Misc. 334 ; 89 Supp. 8T6. 4. Effect of practicing without right. — The plaintiff on appeal objected that the person who appeared for the defend- ant at the trial had not been admitted to practice. Held, that the judgment rendered in the action, which was in a Munici- pal Court, was void. Kaplan v. Berman, 37 Misc. 502 ; 75 Supp. 1002. 5. A motion by a plaintiff to restrain attorneys who had recovered a judgment for him from appearing further for him, and to restrain the sheriff from paying moneys collected to such attorneys, will be denied, if the plaintiff's conduct was tantamount to a withdrawal of a notification to them not to represent him and they did so represent him on an appeal from the judgment. Steinson v. New Yorh Board of Ediccor- tion, 76 App. Div. 612 ; 78 Supp. 703. 6. Right of parties to choose attorneys. — It is erroneous for the Special Terra, allowing third persons to intervene and become parties to an action, to require as a condition, that they defend through the same attorney retained by the de- fendant in the action. 0^ Connor v. HendrioTc, 90 App. Div. 432 ; 86 Supp. 1. 7. Court bound by record. — Although it may very vtrell be that an appeal in the name of a defendant, is solely the act of his attorney, the court is bound by the record as to the identity of the appellant. Pomeranz v. Marcus, 86 App. Div. 321 ; 83 Supp. 711. ATTORNEYS. 581 Other Incidents of the Relation. 8. Misconduct of one's law partner. — A young attorney having proved that an. older attorney to whom he paid a bo- nus for being taken as a partner, so misconducted himself as to give the former a right to dissolution, the partnership will be dissolved; and, the partnership having endured 1/1.5 of the time agreed upon, the young attorney will receive back 14/15 of the bonus he paid. Hoyt v. Easton, 40 Misc. 264 ; 81 Supp. 914. 9. Attorneys not to advertise for divorce cases. — To ad- vertise, offering to act as attorney in a divorce or annulment proceeding, was in 1902 made a misdemeanor. Pen. Code, % 148a. 10. When principal bound by knowledge of attorney. — To bind a principal with the knowledge of his attorney which the attorney has acquired in some other transaction, not re-- lating to the business of his client, the burden is on the per- son claiming such notice to show that knowledge of that trans- action was present in the mind of the attorney at the time he acted for his client. Constant v. University of Rochester, 111 ]Sr. y. 604 ; Matthews v. Bamainmlle, 100 App. Div. 311. 11. Attorney must produce papers — An attorney or coun- sel, on whom a subpoena duces tecum is served, must produce on the application of the adverse party, any papers of his client which his client could have been compelled to produce. Jones V. Reilly, 174 N. Y. 97. 12. Where attorney directs unlawful levy. — An attorney who without authority directs a levy on goods, or the taking of goods on process, is acting in excess of his general powers as an attorney, and his client is not subjected to liability thereby. Welsh v. Cochran, 63 N. Y. 181. But see Barber V. Dewes, 101 App. Div. 482; 91 Supp. 1059. 13. Eequiring the intervenor to employ the original de- fendant's coansel, is an improper condition for the court to 582 Bradbury's Lansing's forms and practice. Other Incidents of the Relation. impose, in a case where intervention is determined to be proper. O'Connor v. Hendrich, 90 App. Div. 432 ; 86 Supp. 1. 14. An attorney has power to do any act which is done in the presence and hearing of his client and as to which the cli- ent does not object, without regard to the extent of the re- tainer. Ducker v. Eapp, 67 N. Y. 464. To submit a case to arbitration. G-orham v. Oale, 7 Cow. 739 ; Tilton v. U. 8. Life Ins. Co., 8 Daly, 84 ; contra, Stinerville v. Bloomington Stone Co., 25 Misc. 314 ; 54 Supp. 577. He has power to con- sent to a reference of a tort claim. Tiffany v. Lord, 40 How. Pr. 481. To employ an expert. Brown v. Travelers' L. & A. Ins. Co., 21 App. Div. 42 ; 47 Supp. 253. To make the neces- sary disbursements in a case. Packard v. Stephani, 85 Hun, 197 ; 32 Supp. 1016. To employ a person to do necessary •work in connection with a litigation. Covell v. Hart, 14 Hun, 252 ; Foland v. Dayton, 20 Week. Dig. 59. He may consent to the discontinuance of an action. Feredi v. Zathrojp, 3 Month. L. Bull, 97 ; Gaillard v. Smart, 6 Cowen 385. But not to compromise or release the cause of action. See next paragraph, post. The attorney may consent to the discharge of a prisoner, on the jail limits, who was arrested on a judg- ment for costs only. Dcmis v. Bowe, 3 St. B. 531. If the judgment has been paid. Same case, 118 N". Y. 55. But if not paid and the sheriff asks for the attorney's authority, it may be questioned whether the attorney has such power without special authorization. Id. and cases cited. An attorney has power to stipulate as to referee's fees. Mark v. City of Buf- falo, 87 N". y. 184. To consent to an allowance to an assignee. Matter of Maxwell, 66 Hun, 151 ; 21 Supp. 209. An attor- ney may stipulate as a condition of putting a case over the term that the cause of action shall survive should the plain- tiff die. Cox V. N. Y. Central R. Co., 63 JST. T. 414. He may appeal from an order denying a motion he is authorized to make. Gravest. Graham, 18 Misc. 600 ; 43 Supp. 508. And may stipulate extending the time of the other party to ap- peal. Iloffenberth v. Muller, 12 Abb. Pr. (N. S.) 222. But he ATTORNEYS. 583 Other Incidents of the Relation. cannot stipulate not to appeal or seek a new trial. People v. Mayor, etc., of N. T., 11 Abb. Pr. Q6. 15. An attorney has no power to change a contract he is authorized to draw. Smith v. Xidd, 68 N. Y. 130. Nor to accept delivery of a deed unless specially authorized to do so. Games v. Piatt, 7 Abb. Pr. (N. S.) 42 ; rev'd 2 Abb. Ct. App. Dec. 159, note. He cannot make admissions, outside of court, not in connection with some proceeding in the case, which will be binding on the client. Fay v. Heblard, 42 Hun, 490; Breck v. Ringler, 59 Hun, 623 ; 13 Supp. 501 ; rev'd 129 IST. Y. 656, without discussing this point ; O'Brien v. Weiler, 68 Hun, 64 ; 22 Supp. 627 ; aff'd 140 N. Y. 281. The attorney cannot satisfy a judgment except upon actual payment of the amount due. Beers v. Eendrickson, 45 N. Y. 665 ; Mandeville v. Eey- nolds, 68 ]Sr. Y. 528 ; aff'g 5 Hun, 338. Nor compromise a judg- ment or claim without express authority. LoiomoM v. Elmira C, etc., R. Co., 85 Hun, 188 ; 32 Supp. 579 ; aff'd 154 N. Y. 765 ; Smith v. Bradhurst, 18 Misc. 546 ; 41 Supp. 1002 ; Bar- rett v. Third Ave. R. Co., 45 N. Y. 628 ; MoKeohnie v. Mc- Keehnie, 3 App. Div. 91 ; 39 Supp. 402. But a compromise may be effected by the attorneys where the parties have full knowledge of the transaction and give their consent thereto. Cartsens v. SohmalholB, 16 Daly, 26 ; 8 Supp. 529. An attor- ney cannot consent to the taxation of costs against his client in excess of the statutory sum. O'Keefe v. Shipherd, 23 Hun, 171. 16. The counsel in a case has power to enter into stipula- tions regarding the proceedings in the action. Wilcox v. Woodhall, 2 Gaines, 250 ; Deeri v. MiUe, 4 St. K. 129 ; aff'd 113 TST. Y. 303. Also to amend the pleadings at the trial with- out the knowledge of the attorney of record. Devlin v. Maym-, etc., of iT. Y., 15 Abb. Pr. (N. S.) 31. The acts of counsel in the conduct of a trial are binding on the client. Arthur V. Homestead Fire Ins. Co., 78 N. Y. 462. As a con- dition of an adjournment he may admit that the defendants 584 Bradbury's Lansing's forms and practici!. Other Incidents of the Relation. are copartners, which admission will be binding on the defend- ants. Oliver v. Bennett, 65 N. T. 569. Counsel also may ad- mit the identity of goods replevied, which admission will be binding on a subsequent trial of the case. Converse v. Sickles, lY Misc. 169 ; 40 Supp. 971 ; aff'd 16 App. Div. 49 ; 44 Supp. 1080 ; aff'd 161 N. Y. 666. He may sign a notice of trial on behalf of an attorney who has absconded. Bogert v. Bom- croft, 3 Gaines, 127. 17. But counsel has no authority to release a witness in the name of the attorney while the latter is absent. Bowne V. Hyde, 6 Barb. 392. Nor to make a motion in the action without the assent of the attorney of record. Kiernan v. Campbell, 1 Month. L. Bull. 18. Nor can he stipulate that a demurrer which he has been retained to argue shall be final, upon opening a default which he has allowed to be taken. Baron v. Cohen, 62 How. Pr. 367. 18. Ordinarily an attorney's authority ends with the en- try of judgment, except to take such proceedings as may be necessary to collect it. Cruikshank v. Goodwin, 66 Hun, 626 ; 20 Supp. 757. Thus he may institute supplementary proceed- ings. Ward V. Roy, 69 N. Y. 96. If he issues execution against the person in a case not authorized his client is lia- ble. Guilleaume v. Rowe, 94 N. Y. 268. He has no author- ity to direct the sheriff to take property of a person other than that of an execution or attachment debtor. Quilfoyle v. Seeman, 41 App. Div. 516 ; 58 Supp. 668 ; Welsh v. Cochran, 63 N". Y. 181 ; Wiegmann v. Morimura, 12 Misc. 37 ; Averill V. Williams, 4 Denio, 295. 19. Privileged communications. — Neither an attorney nor his clerk nor stenographer is allowed to disclose any communi- cation made to him by his client or his advice given thereon. Code Civ. Pro. § 835. The privilege is that of the client and not of the attorney. Hoyt v. Jackson, 3 Dem. 388. The re- ATTOillSfEYS. 685 other Incidents of the Relation. lation of attorney and client must clearly appear before the privilege exists. Renihan v. Denning, 103 IST. Y. 573 ; Rous- seau V. Bleau, 131 N. Y. 17V. Onlj^ information derived from the client, and not that secured from other persons, is privi- leged. King v. AMey, 179 N. Y. 281. CHAPTER Vn. PAETIES. Article I. Paetiks in aENEBAL. II. Plaintiffs. III. Defendants. IV. Kelatobs. V. Inteevention. VI. BbINGINS in new PAETIES. VII. Substitution. VIII. Amendments. IX. Objections to pasties and waiveb of objections. I. PARTIES IN GENERAL. 1. Parties, as the word is used in this chapter, means those who take part, as plaintiff, defendant or relator, in an action or special proceeding. 2. Importance of word "as."' — "Whatever words follow a name, such as executor, receiver, etc., in describing a party to an action, in the absence of the word " as " preceding them are words descriptio personce. Bennett v. Whitney, 94 N. Y. 302 ; UniUd Press v. Ahell Co., 73 App. Div. 240 ; T6 Supp. 692. 3. The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights ; if not others may be brought in. Code Civ. Pro. § 452. The rule that new parties could only be brought in in equitable actions has been changed by § 452. Rosenberg v. Salomon, 144 IST. Y. 92. See title Intervention, paragraph 2, post, in this chapter. iSee Pleadings for effect of omitting word "as" in title and sup- plying it in the body of the pleading, and wee versa. 586 PARTIES. 587 Parties in General. 4. In equity, all persons materially interested, either le- gally or beneficially, in the subject-matter of a suit are to be made parties to it, so that there may be a complete decree ■which shall bind them all. Townsend v. Bogert, 126 N. Y. 370 ; International Paper Co. v. Hudson River Water Power Co., 92 App. Div. 56 ; 86 Supp. 736. 5. When other parties necessary. — Where a complete de- termination of the controversy cannot be had without the presence of other parties than those before the court, the court must direct them to be brought in ; and where a per- son, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, the court must, if such party makes application, direct him to be brought in by the proper amendment. Code Civ. Pro. % 452. See Has- herg v. Moses, 81 App. Div. 199 ; 80 Supp. 867. Scope of% 452 Iroadened. — The amendment made by Z. 1901, G. 512, to Code Civ. Pro. §452, adding the clause, " or in real property for injury to which the complaint demands relief," has been construed as broadening the scope with respect to the parties that might be brought into a controversy, but not as taking away the court's discretion. Pope v. Manhattan By. Co., 79 App. Div. 583 ; 80 Supp. 316. 6. When person must be a party, either plaintiff or de- fendant. — In an action for the annulment of marriage, an in- fant husband or wife is a necessary party. Fero v. Fero, 62 App. Div. 470 ; 70 Supp. 742. If a trustee of a wife, under a separation agreement, sues a husband for a balance claimed to be due, and the husband in his answer asks cancellation of the agreement because of the change in circumstances of himself and his wife, the wife is a necessary party. Chamberlain v. Cumming, 65 App. Div. 474 ; 72"Supp. 928. Where subcont/ractors sought to foreclose mechanics^ liens, 588 bradbtry's Lansing's forms and PRACTicil. Plaintiffs. the principal contractor was held to be a proper if not a nec- essary party, a larger amount being claimed by him than by the subcontractors ; it was held he might be plaintiff or de- fendant. Freese v. Avery, 57 App. Div. 633 ; 69 Supp. 150. A mortgagee, insured against loss " as his interest may ap- pear,^^ must be made a party, plaintiff or defendant, in an ac- tion on a lire insurance policy, which the mortgagor has taken out. Lewis V. Qua/rdian Fire d; Life Assurance Co., 181 N. Y. 392. If two, of three partners, sue a marshal for conversion, the marshal having taken the firm's property by virtue of a requisi- tion, issued as the result of the third partner's illegal act, they must make such third partner a party. Freeman v. Ahram- son, 30 Misc. 101 ; 61 Supp. 839. Where attorneys hold money, recovered for the benefit of their clients, and they are keeping this money because of claims against it, and are sued by a plaintiff who holds assign- ments against this fund, a motion by the attorneys to have added as parties all other claimants to this fund, should be de- nied if such parties are not necessary to a determination of plaintiff's rights and it does not appear that the defendant at- torneys can be made liable beyond the amount of money in their hands. Lopez v. Kellogg, 65 App. Div. 214 ; T2 Supp. 562. 7. Seeking party's street address.- — A defendant, seeking to require of the plaintiff the latter's residence by street and number, must allege request and refusal, or his motion will be denied. Goodness v. Metropolitan St. B. Co., 27 Misc. 11 ; 57 Supp. 100. II. PLAINTIFFS. 1. A plaintiff is the " actor, ^^ " who complains of an injury done." Black. Comm., Ill, 25. Special provisions as to proper and necessary plaintiffs will be found under special topics, e. g., Partition, Ejectment. PARTIES. 589 Plaintiffs. 2. Who may be joined. — All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise ex- pressly provided in the Code. Code Civ. Pro. § 446. See paragraph 6, ante, p. 58T. 3. Real party in interest must sue. — The real party in interest must be the plaintiff in. an action, except that an ex- ecutor or administrator, a trustee of an express trust or a per- son expressly authorized by statute, may sue, without joining vrith him the person for whose benefit the action is prose- cuted. Code Civ. Pro. §449. Married woman, plaintiff, need not show separate estate. Lumley v. Tm^siello, 69 App. Div. Y6 ; 74 Supp. 567. Cor- porations can be plaintiff's only as to their corporate rights. Cortlandt Bd. of Educ. v. Cortlandt Bd. of Educ, 76 App. Div. 355 ; 78 Supp. 522. A nun. may sue, it seems, if she agreed to her order's common property rule, but made no transfer of her property. White v. Price, 108 IST. Y. 661. Test as to real party i?i interest. — If payment of the judg- ment to the plaintiff will fully protect the defendant against claims by third parties, such plaintiff is the real party in in- terest. Sheridan v. Mayor, 68 IST. Y. 30 ; St. James Co. v. Security Trust <& Life Insurance Co., 82 App. Div. 242 ; 81 Supp. 739 ; aff'd 178 N. Y. 560. Consideration immaterial in determining this. — A plaintiff in an action on a note who holds the note by a valid transfer is the proper party in interest, no matter what the considera- tion on Avhich the note was given. Hunter v. Allen, 106 App. Div. 557 ; 94 Supp. 880. 4. Action on bond under seal. — At common law an action on a bond under seal must be brought in the name of the obligee, and this is stUl the rule in this State, except where modified by statute. Alexander v. Union Surety & Guarantee Co., 89 App. Div. 3; 85 Supp. 282; Smith v. Pierce, 60 Supp. 1011. 590 BRADBURY'S LANSING's FORMS AND PRACTICE. Plaintiffs. 5. When point not raised. — Where a defendant demurs t(j a complaint on the ground that the facts stated therein do not constitute a cause of action, this does not raise the question as to the legal capacity of the plaintiflP. Herbert v. Montana Diamond Co., 81 App. Div. 212 ; 80 Supp. 717. 6. Foreign executors can sue in this State as trustees to recover part of their trust property, their additional title as trustees being disregarded. JBateman v. Hunt, 46 Misc. 346 ; 94 Supp. 861. Foreign executors who obtain a judgment abroad for a debt secured by mortgage have the right to sue here, not as execu- tors but as owners of the debt. Newton v. Jay, 107 App. Div. 457 ; 95 Supp. 413. Executors recovered a judgment and were directed to turn over the money so obtained to themselves as trustees, but had not done so ; they were held entitled as executors to sue on this judgment. Willets v. Haines, 96 App. Div. 5 ; 88 Supp. 1018. An executor of a deceased nonresident of this State, such executor also being a nonresident, is a proper plaintiff in an action to recover from executors of another estate a share to which such nonresident executor claims to be entitled. Stone V. Demorest, 67 App. Div. 549 ; 73 Supp. 903. 7. Assignee of foreign judgment. — An assignee of a judg- ment recovered in another State may maintain an action in his own name thereon in this State, where no evidence of any statutory law of that other State to the contrary is introduced. Waters v. Spencer, 44 Misc. 15 ; 86 Supp. 608. 8. Legatees and other beneficiaries A residuary legatee cannot sue on a claim against the estate until debts and gen- eral legacies have beeti paid. Matter of Marcellus, 165 N. Y. 70 ; and see Squire v. Bugbee, 65 App. Div. 429 ; 72 Supp. 1023. PARTIES. 591 Plaintiffs. The heirs at law and next of kin of a deceased legatee have no right to be parties in an action against the executor of the estate under which they are entitled to inherit through such de- ceased legatee ; the latter's administrator is the one who has the right to reach that property, if such a right exists. Conley V. Walton, 49 Misc. 1 ; 96 Supp. 400 ; construing Code Cw. Pro. % 446. An action brought ly remaindermen, who on the trial do not show that they are the persons named in a will, and do not show otherwise that they are the real parties in interest, will be dismissed. Bend v. Hoffman House, 30 Misc. 729 ; 62 Supp. 1081. An action was held not maintainable in the first instance ly legatees after lecoming of age, for stock transferred while they were minors ; the executors, who had the legal title, were the proper plaintiffs. Robinson v. Adams, 30 Misc. 537 ; 63 Supp. 816 ; modified, 81 App. Div. 20 ; 80 Supp. 1098 ; aff'd 179 K Y. 558. Must prove facts enahling him to sue. — A person is not enti- tled to sue in conversion as next of kin of his deceased father, if he offers no proof that there is no widow, nor other next of kin etc. McKernan v. Thomas Conwille Brewing Co., 86 Supp. 191. 9. Corporations; enforcing personalliability of directors. In an action to enforce the personal liability of directors un- der the Stock Corporation Law, all creditors of the corpora- tion are proper parties plaintiff. Whitney v. Wilcox, 58 App. Div. 57 ; 68 Supp. 667. Corporation suing as trustee. — A corporation is entitled to sue as trustee, where the defendant assigned to it and others a judgment as security for bonds which the corporation aud such others had executed. Hoffman House y. Foote, 172 N. Y. 348. Trustee joining with corporation.— It is ground for demurrer for misjoinder of parties plaintiff, if a trustee of the stockhold- ers of a corporation join with the corporation itself in an ac- 592 bradbuey's Lansing's forms and practice. Plaintiffs. tion to enforce an instrument. Ha/oana City By. Go. v. Cebal- los, 49 App. Div. 263 ; 63 Supp. 417. Representative actions. — A stockholder will not be allowed to be made a party plaintiff on his motion in a representative action, if without excuse he has waited ten years before ap- plying. MaoArdell v. Olcott, 62 App. Div. 127 ; 70 Supp. 930. In a representative action, if the original plaintiff delays, a person added subsequently may proceed, provided he give an undertaking to pay the original plaintiff such sum, if any, as may be found due him at the end of the action. Manning v. Mercantile Trust Co., 37 Misc. 215 ; 75 Supp. 168. 10. Elevated railroad actions for impairments of ease- ments. — If the plaintiff, in the usual suit against an elevated railroad, for fee and rental damages, and an injunction, for im- pairment of the easements of light, air and access, conveys, pendente lite, he may make a timely motion, on notice, for an order bringing in his grantee as an additional plaintiff ; or de- fendant, if the grantee refuses to be a plaintiff. Koehler. v. New York Elevated B. B. Co., 159 K Y. 218. Koehler case distinguished. — The Koehler case has been dis- tinguished in several important elevated railway cases since it was handed down. The decision, it is held, is subject to the qualification that the right to bring in parties must exist under Code Civ. Pro. § 452 ; and where, in an elevated railroad action, a person whom the plaintiff seeks to join as a party is not nec- essary for a complete determination of the controversy, a mo- tion to bring in such party is improperly granted. Flammer V. Manhattan El. B. Co., 56 App. Div. 183 ; 67 Supp. 617 ; Scholle v. Metropolitan El. B. Co., 60 App. Div. 368; 69 Supp. 1118 ; Stokes v. Manhattan By. Co., 47 App. Div. 58 ; 62 Supp. 333. Importance of reservations. — If the grantor reserved all claims against the elevated railroad company for fee and rental damages, and the grantee agreed to aid the grantor in recovering, the court will probably grant a motion to bring in the grantee as an additional party. Poipe v. Manhattan Bail- PARTIES. 593 Plaintiffs. road Co., 79 App. Div. 583 ; 80 Supp. 316. But it seems that if the grantor does not make such a reservation such a motion will be denied. Id. In such a case, where an owner of realty conveyed such realty, reserving the right to sue for past dam- ages, and then moved to bring in the grantee as a party plain- tiff, the motion was held to have been properly denied, in the discretion of the court. Welde v. iT. Y. c& Harlem E. Co., 108 App. Div. 286 ; 95 Supp. 728 ; citing Pope v. Manhattan Railway Co., 79 App. Div. 583 ; 80 Supp. 316. Where the original plaintiff has conveyed away his right to equitable relief, and the subsequent grantee may have lost the right to complain, a motion to join such grantee as a party will be denied. Israel v. Metropolitam, Elevated R. Co., 58 App. Div. 266 ; 69 Supp. 218. But the Supreme Court has full discre- tionary power either to join consecutive owners in one suit, or refuse to do so. Mooriey v. New York Elevated R. R. Co., 163 N. T. 243. 11. Joining several plaintiffs in an action for negli- gence. — The owner of premises destroyed by fire through the defendant's negligence may join with several insurance com- panies who have paid losses occasioned by such fire as par- ties plaintiff in an action to recover damages for such neg- hgence. Jacobs v. H. Y. C. (& R. R. R. R. Co., 107 App. Div. 134 ; 94 Supp. 954. 12. Actions for deceit or fraud. — Fo action for deceit can be maintained at law between the members of two firms which have one member common to both. Taylor v. Thomp- son, 176 'N. Y. 168. Two persons may join as plaintiffs in an action to rescind a contract of sale induced by fraud in- tended to reach them both, it being shown that they acted unitedly in the premises. Bradley v. Bradley, 165 N. Y. 183. 13. Leases. — Where a lease provides that a deposit is to be made by the parties of the second part, both such parties are necessary plaintiffs in an action against the landlord to re- VOL. I — 38 594 Bradbury's Lansing's forms and practice. Plaintiffs. cover this deposit. Falanga v. Berti, 31 Misc. 790. Ttiough. only one of two lessors signed a lease, both are proper parties plaintiff against the lessee. Moore v. Gair, 108 App. Div. 23 ; 95 Supp. 475. 14. Where an action is brought to foreclose a mechan- ic's lien, and the owner of the building on which the work is done dies, the action can be brought in the name of the as- signee where an assignment was made of the lien after the commencement of the action to foreclose. Perry v. Levenson, 82 App. Div. 94 ; 81 Supp. 586 ; aflf'd 178 N. Y. 559. 16. Actions by Indian tribes. — By a statute passed in 1906, the Montauk Indians were enabled to maintain actions in the name of their chief, within a limited time, in certain dis- tricts and for certain purposes. L. 1906, c. 177. The general rule as to Indians is that as a body or tribe, they have no cor- porate name by which they can institute a suit in ejectment. Montauk Tribe v. L. I. B. B. Co., 28 App. Div. 470 ; 51 Supp. 142 ; citing Strong v. Waterman, 11 Paige, 607, and Seneca Nation v. Christie, 126 N. Y. 122. Nor can one member of an Indian tribe sue in ejectment for all who may contribute. Johnson v. L. I. B. B. Co., 162 N. Y. 462. Nor can Indians maintain an action to recover personal property. Onondaga Nation v. Thatcher, 53 App. Div. 561 ; 65 Supp. 1014 ; aff'd 169 N. Y. 584. However, §§ 5, 11, of the Indian Law, allow actions to be brought in certain cases by or on behalf of Indians or Indian Tribes, in the. regular civil courts if the action can- not be brought in a peacemaker's court as provided in § 47 of the Indian Law. 16. Municipalities. Action to recover penalty. — In an action to recover a penalty, under L. 1895, c. 322, for the use of soft coal, the city is the proper plaintiff. City of Brook- lyn V. Nassau Electric B. B. Co., 44 App. Div. 462 ; 61 Supp. 33. An action to recover damages for the destruction of a bridge is properly brought in the name of the town. Fort PARTIES. 595 Plaintiffs. Covington v. U. S. & C. B. E., 8 App. Div. 23 ; 40 Supp. 313 ; aflf'd 156 N. Y. 702. It is no misjoinder that the highway commissioners are not parties plaintiff. Palatine v. Oana- joharieW. S. Co., 90 App. Div. 548; 86 Supp. 412. A ^^ freeholder and taxpayer" merely as such, cannot com- pel the payment of damages for land taken by right of emi- nent domain. People ex rel. Baker v. Morgan, 9Y App. Div. 267 ; 89 Supp. 832. Taxpayer can sue to annul leases. — A resident and taxpayer of New York City can sue to annul leases made by the trus- tees of a town which is now part of the city, although plain- tiff is not a resident and taxpayer of that part of the city described in the leases. Wenh v. City of New Yorh, 171 N". Y. 607. Where independent awards are made for lands, taken by right of eminent domain, the claimants, seeking by mandamus the payment of these awards, cannot join in one action. Peo- ple ex rel. Baher v. Morgan, 97 App. Div. 267 ; 89 Supp. 832. Action against telephone company. — One who, at the request of a telephone company, signs a petition to the common coun- cil of a city, the petition stating terms of telephone service, may sue in equity to make the company serve him on those terms. Wright v. Olen Telephone Co., 48 Misc. 192 ; 95 Supp. 101. 17. Insurance litigation. — Where, by an insurance policy, the amount is to be paid to two persons, " as interest may ap- pear," both are necessary plaintiffs in an action on the policy. Besant v. Glen Falls Ins. Co., 72 App. Div. 276 ; 76 Supp. 35. Insurance hrohers, agents for foreign insurance companies, are not proper plaintiffs, in a suit for premiums. Cortis v. Vam, Derveer, 91 Supp. 743. Insurance companies who pay a property owner a fire loss, alleged to have been caused by a railroad, are necessary plain- tiffs in an action for damages against the railroad. Munson V. N. Y. C. (& H. B. B. R. Co., 32 Misc. 283 ; 65 Supp. 848. Lloyds associates must join. — Where a Lloyds insurance 596 BRADBURY'S LANSING's FORMS AND PRACTICE. Plaintiffs. association reinsure risks by a contract between this aggre- gation and an insurance company, all the associates must be parties plaintiff in an action on this contract. Thompson v. Colonial Assurance Co., 60 App. Div. 325 ; TO Supp. 85. 18. A trustee of an express trust may sue in his own name ; a person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust. Code Civ. Pro. § M9. An attorney who takes notes for the benefit of creditors who are his clients is the trustee of an express trust. Crouch v. Wagner, 63 App. Div. 526 ; 71 Supp. 607. So is a person to whom others gave money for speculation, and he may sue, in his own name, brokers with whom he placed this money. Parker v. Paine, 37 Misc. 768 ; 76 Supp. 942. In an action for breach of contract, where a sold note reads " Sold for account of A. B., agents for C. D.," the agents, under Code Civ. Pro. § 449, may sue, it seems, without joining C. D. as plaintiff ; the agents are trustees of an express trust. Schip;per v. Milton, 51 App. Div. 522 ; 64 Supp. 935 ; aff'd 169 JST. Y. 583. A. man who is partner with his loife, but in his own name deposits security for the payment of partnership bills, may, as trustee of an express trust, sue without joining the wife, to recover this security. Meinhardt v. Excelsior Brewing Co., 98 App. Div. 308 ; 90 Supp. 642. 19. A cashier, to whom his bank assigned a judgment for its convenience, can sue thereon in his own name. Brown v. Powers, 53 App. Div. 251 ; 65 Supp. 733. 20. Assignees.— An assignee of a judgment recovered asainst the administrator of an estate can sue in his own name to recover the money. Bamberger v. American Surety Co., 48 Misc. 221 ; 96 Supp. 665. Two plaintiffs, joined to- gether, must both be interested in both of the two causes of action stated, although each might have assigned his cause PARTIES. 597 Plaintiff's. of action to the other. Cobh v. Monjo, 90 Abb. Div. 85 ; 85 Supp. 597. An action on a promissory note may ie inaintained hy the indorser of the payee, although plaintiff has assigned for the benefit of creditors. Burton v. Burton, 57 App. Div. 113 ; 67 Supp. 1067. 21. Action to recover on undertaking. — In an action to recover on an undertaking, given to obtain an order of arrest, which order was set aside, one of those in whose favor the in- demnity was given may sue without joining the others. Krause v. Rutherford, 37 Misc. 382 ; 75 Supp. 773 ; aff' d 81 App. Div. 341 ; 81 Supp. 465 ; aff'd 178 IST. Y. 584. 22. If trustees are only depositaries. — The daughter-in- law is the proper plaintiff in a suit for the breach of a con- tract to pay money to trustees for the support of herself and her children, if the trustees were depositaries merely. Rech- nagel v. Steinway, 105 App. Div. 561 ; 94 Supp. 119. 23. A trustee in bankruptcy for a bankrupt is properly substituted as a plaintiff, in an action brought by a creditor against the bankrupt and others. Patten v. Oarley, 69 App. Div. 423, 74 Supp. 993. 24. A son and his mother are proper parties plaintiff in an action in equity to enforce an agreement whereby, in re- turn for services to be performed by the son, a third person promised to release a judgment obtained against the mother. Opper V. Eirsch, 33 Misc. 560 ; 68 Supp. 879. 25. Where a contract had three parties of the first part, but it was joint in form, as to them, one of them cannot bring action alone, unless he alleges and proves that as to the parties of the first part, the contract was several and not joint. Fisher Textile Co. v. Perkins, 100 App. Div. 19 ; 90 Supp. 993. 598 Bradbury's Lansing's forms and practice. Defendants. 26. If interest of party has terminated. — Where two per- sons made a contract with a third, and subsequently a contract between those two was annulled, and one of them engaged to continue the enterprise for which the contract with this third person was made, the third person may sue without joining the one whose interest had terminated. Bdbhitt v. Oihhs, 51 App. Div. 38Y ; 64: Supp. 699. III. DEFENDANTS. 1. A defendant is a person called upon to answer, either at law or in equity, and as well in criminal as civil suits. Bou- vier, " Defendant." Special rules of practice with regard to defendants will be discussed under special topics herein, such, e. g., as Partition, Attachment. 2. Distinction between party as individual and as rep- resentative.— A complaint stating a cause of action against a person as trustee is demurrable, where the summons and caption refer to him only individually. Leonard v. Pierce, 182 N. Y. 431. 3. A judgment record is fatally defective which contains none of the essentials to show that a valid judgment was en- tered against anybody. Ooldterg v. Markowitz, 94 App. Div. 23Y ; 87 Supp. 1045. 4. Who may he joined as defendants. — Any person may be made a defendant who has or claims an interest in the con- troversy adverse to the plaintifiF, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein, except as otherwise expressly pre- scribed in the Code. Code Civ. Pro. § 447. That all the de- fendants in an equity action are not afPected to the same extent or in the same way will not deprive the court of jurisdiction. Woolf v. Barnes, 46 Misc. 169 ; 93 Supp. 219. PARTIES. 599 Defendants. 5. If a contract is under seal, a party whose name is not mentioned or referred to therein cannot be sued for its breach. Spencer v. Huntington, 100 App. Div. 463 ; 91 Supp. 561. 6. ReplcTin. — In a replevin action, the plaintiff need join only the one who actually withholds possession of the chattels. Hazlett V. Hamilton Storage & Warehouse Co., 47 Misc. 660 ; 94 Supp. 580. In such an action, an administrator, alleged to have taken personal property, should be sued individually and not representativelj'. Reimers v. Sohmitt, 68 App. Div. 299 ; 74 Supp. 122. So, a replevin action to recover goods consigned to a firm which has assigned is properly brought against the assignee individually. Altman v. McCall, 33 Misc. 804; 67 Supp. 959. In a replevin action, where a stranger files a third party claim with the sheriff after the levy, the plaintiff is not entitled to bring in such third party if the latter is unwilling. Goldstein v. Shapiro, 85 App. Div. 83 ; 82 Supp. 1038. 7. "When State a necessary party. — In an action to have deeds executed by the Comptroller of the State to the people of the State, for unpaid taxes, adjudged void, the State is a necessary party ; hence, the action is not maintainable. San- ders V. Saxton, 182 N. Y. 477. 8. When city a necessary party. — A taxpayer seeking to restrain the performance of a contract made by a committee of a city, must make the city a party. Eames v. Kellar, 102^ App. Div. 207 ; 92 Supp. 665. So, in an action to annul leases made by the trustees of a town which is now part of New York City, the Comptroller of New York and the City of New York are proper defendants ; as are corporations said to be interested in the leases. The members of the Town Board of the former town, are, however, neither necessary nor proper defendants. Wenk v. City of New York, 171 N. Y. 607. In certiorari proceedings to review the assessment on a special franchise, the city in which the franchise is exercised is not a proper party defendant. People ex rel. Rochester Telephone 600 Bradbury's Lansing's forms and practice. - Defendants. Co. V. Priest, 95 App. Div. 44 ; 88 Supp. 11. In a suit to appor- tion water rates among several owners, neither the city nor the receiver of a hotel corporation which used the water but did not own any of the land, is a necessary defendant. Lester V. Seilliere, 50 App. Div. 239 ; 63 Supp. 748. Code Civ. Pro. § 447 was in 1901 amended so that the People of the State of New York might be made defendants in any action which affected real estate on which they claimed a lien under the transfer tax act. The Board of Education of a town which had become part of J^ew York City was not allowed, when sued, to compel the plaintiff to make that city a party, although the town and the city had not adjusted the town's bonded in- debtedness. Southold Savings Bank v. Hempstead Board of Education, 44 Misc. 74 ; 89 Supp. 714. The poll clerics, in an action under the Election Law for a recount, are necessary parties defendant. Matter of Stiles, 69 App. Div. 589 ; 75 Supp. 278. 9. Indian Tribes. — The courts have jurisdiction of tort ac- tions against Indians. Bates v. Primtup, 31 Misc. 17 ; 64 Supp. 561. 10. Corporations. — A trustee of a corporation, seeking, under Code Civ. Pro. §§ 1781, 1782, to restrain a wrongful alienation of property, if not asking for a receiver, need not make the corporation a party defendant. Green v. Compton, 41 Misc. 21 ; 83 Supp. 588. "Where a director is suing under these sections of the Code for an accounting by his fellow di- rectors, a general creditor of the corporation is not a necessary party. Miller v. Barlow, 78 App. Div. 331; 79 Supp. 964. A trustee in bankruptcy of a corporation, seeking under the Stock Corporation Law to recover from the directors of a cor- poration money taken by them, need not make the corpora- tion's creditors parties defendant. PatKbone y. Ayer, No. 1, 84 App. Div. 184 ; 82 Supp. 239. In an action against a cor- poration's directors, for conversion, a director who has taken no part in the conversion, is not a proper defendant. Mulre- han V. Gebhardt, 93 App. Div. 98. PARTIES. 601 Defendants. In an action to viake a corporation perform a contract, where an equity decree is sought whict may limit the rights of the corporation's stockholders with reference to the trans- fer of stock by them, they are necessary parties. Dupignac V. Bernstrom, T6 App. Div. 105 ; 78 Supp. 705. In an action against the trustees of a corporation, to prevent unlawful acts, the corporation must be made a party defend- ant, if a receiver is asked for. Oreen v. Compton, 41 Misc. 2 1 ; 83 Supp. 588 ; Miller v. Barlow, 78 App. Div. 331 ; 79 Supp. 964. A creditor of a corporation, seeking in one action seques- tration of the corporation's property and to establish the per- sonal liability of shareholders, properly makes the shareholders parties defendant. Bagley cfe 8ewall Go. v. Lennig, 61 App. Div. 26 ; 70 Supp. 242. If a creditor seeks the corporation's dissolution, lie may join as parties defendant persons alleged to be fraudulent transferees of property of the corporation. Matter of Sayre, 70 App. Div. 329 ; 75 Supp. 286. If a cred- itor, under the Stock Corporation Law, is suing the holders of stock not paid in full, the receiver of the corporation is not a necessary party. Lang v. Lutz, 180 N. Y. 254. In a suit brought by a creditor of an insolvent corporation against a reorganization committee to compel the distribution of bonds, a new corporation, formed under the reorganization agree- ment, is interested in the subject of the action and is properly allowed to become a defendant. Washington Sowings BomTc V. Fletcher, 55 App. Div. 580; 67 Supp. 365. In an action to enforce the personal liability of directors un- der the Stock Corporation Law, receivers of the corporation, as well as such directors, are proper parties defendant. Whit- ney v. Wilcox, 58 App. Div. 57; 68 Supp. 667. In an action against an officer of a corporation, to recover the penalty given by statute for a refusal to exhibit its stock book, the corporation is not a necessary party. Gunst v. Goldstein, 30 Misc. 44 ; 61 Supp. 707. In a replevin action to recover stock certificates, a corpora- tion, which claims the certificates as assignee by a trust deed, 602 Bradbury's Lansing's forms and practice. Defendants. is entitled, under Code Cvo. Pro. % 452, to be made a defend- ant. Michaelis v. Towne, 51 App. Div. 4iQQ ; 64 Supp. 751 ; citing Rosenberg v. Salomon, 144 N. Y. 92. If inte?'est of two corporations is inseparable. — If plaintiff finds that the interest of two railroads is probably insepar- able, so far as negligence which caused him injury is con- cerned, but has joined only one as defendant, an order bring- ing in the other is proper. JSomanoski v. Union Railway Co., 30 Misc. 830 ; 61 Supp. 1097. It is proper if another rail- road has purchased, subject to liabilities, the one originally sued. Winters v. King, 51 App. Div. 80 ; 64 Supp. 496. In an action for the specific performance of an agreement to, among other things, surrender stock, one who is a mere depos- itary agent, against whom no relief is sought, is not a neces- sary party. Baeck v. Meinken, 33 Misc. 371 ; 68 Supp. 428. Joint-stock association. — An action under Code Civ. Pro. § 1919, against the president of a joint-stock association of more than seven persons, is not maintainable where the asso- ciation is no longer in existence. Peckner v. Webb, 35 Misc. 291; 71 Supp. 768. Plaintiff in such a case should sue, it seems, the individual associates. Id. 11. When intended beneficiary demands money. — Where a " ladies' committee " raises money for a certain purpose, and this purpose fails, but the intended beneficiary demands the money, it must make the ladies' committee parties defendant. Commercial Tra/velers' Association v. McNamara, 95 App. Div. 1 ; 88 Supp. 443. 13. Liens. — The following are among necessary parties de- fendant in an action to enforce mechanics' liens on real prop- erty : All lienors having liens against the same property or any part thereof ; all other persons having subsequent liens or claims against the property, by judgment, mortgage or otherwise ; all persons appearing by the records to be over- seers of such property or any part thereof ; and the State, when the lien is one filed against the funds of the State for PARTIES. 603 Defendants. ■which public improvement is constructed. Code Civ. Pro. § 3402. In an action to esidblish an equitable lien on goods assigned, an assignor is not a necessary defendant. National Bank of Deposit V. Rogers, 166 N'. Y. 380. Where an attorney sues to foreclose his lien on a fund paid in settlement to his client by the person his client was suing, the client is a necessary party. Oishei v. Pennsylvania R. Co., 101 App. Div. 4T3 ; 91 Supp. 1034. 13. Real property actions ; foreclosure. — If the complaint alleges that the mortgage sought to be foreclosed was executed by the defendant and his wife, the latter, unless she is dead or has released her dower interest, must be made a party. Frank- lin V. Beegle, 102 App. Div. 412 ; 92 Supp. 449. In an action to foreclose a mortgage, devisees who claim by title paramount to the mortgage cannot be brought in as parties. Shire v. Plimpton, 50 App. Div. IIY ; 63 Supp. 568. Conditional ven- dors, having rights prior to all other liens, are not necessary or proper parties in a foreclosure action brought by a mort- gagee. Condit V. Goodwin, 44 Misc. 312. Partition. — A tenant by the curtesy is a proper defendant in a partition suit. Bender v. Terwilliger, 48 App. Div. 3Y1 ; 63 Supp. 269 ; aff'd 166 N. Y. 590. In an action for the par- tition of real property, a person who claims title to part of such property adversely to the plaintiff may be a defendant. Satterlee v. Kobhe, 173 IST. Y. 91. Where there is uncertainty as to the exact boundaries of land sought to be partitioned, the grantor of the present owner, or the heirs of such grantor, should be made defendants. Harris v. Harris, 75 App. Div. 216 ; 77 Supp. 985. Ijf mortgaged chattels are wrongfully removed hy the mort- gagor, he, because of his equity of redemption, must be made a party defendant, in a foreclosure action brought by the mort- gagee against the person having possession. FishelY. Hamil- ton Storage Warehouse Co., 42 Misc. 532 ; 86 Supp. 196. Where a huslamd sought to engraft a trust on realty, the legal 604 Bradbury's Lansing's forms and practice. Defendants. title to which was held by his wife, their children being al- leged to be intended beneficiaries, the children were not proper defendants. Orlick v. Orlich, TO App. Div. 595; 75 Supp. 586. Land leased with right of way. — The owner of land leased part with a right of way and a right of access to a dock ; sub- sequently he leased other parts of this property ; these lessees denied the first lessee's right of way ; in an action to enforce it, the wife of the original lessor, to whom he conveyed the entire tract prior to his death, but after the action was com- menced, was a proper party defendant ; the administrator of the deceased was not a proper defendant for no damages were asked for against the deceased. Stolts v. TusJca, 83 App. Div. 426 ; 82 Supp. 93. Leases. — If a plaintiff knew that persons were acting as agents for a landlord, the landlord is the proper defendant if she seeks money paid by her. Bruid v. Mo VicTcar, 81 Misc. T93 ; 65 Supp. 1128. It is proper for the party to a contract to lease, with an option of purchase, who is seeking reforma- tion of the contract, to join as defendant the original lessee as well as the assignee. Ilackett v. Yiew, 109 App. Div. 351 ; 95 Supp. 675. Where a plaintiff seeks cancellation of a lease, which, it is alleged, the defendant procured through fraud, a third person is not properly made a defendant on the plea that in the action, if he is a party, differences between him and the defendant can be litigated ; for plaintiff has no interest in these differences, and the third party has no interest in the subject of plaintiff's action. Brush v. Levy, 54 App. Div. 296 ; 66 Supp. 700. Actions to set aside transfers. — A trustee in bankruptcy, seeking to set aside a transfer of property, need not make an intermediate fraudulent transferee a party defendant. SJcillen V. Endelman, 39 Misc. 261 ; 79 Supp. 413. If a judgment re- quires that one of two defendants pay over money because of a fraudulent transfer of property made to him by a decedent, and such defendant appeals, a notice of appeal must be served on the oodefendant, who is the administrator of said decedent. PARTIES. 605 Defendants. Coojjer V. Cooper, 76 App. Div. 221 ; 78 Supp. 397. Plowever, under Code Civ. Pro. § 1303, the court may on terms grant relief from an omission to do this. Id. A wife, to whom her husband, after taking property by an alleged fraudulent conveyance, conveyed this property, is a necessary party ia an action by the receiver of the original grantor to set aside the conveyance by which he parted possession ; and a court of equity will, under Code Civ. Pro. § 452, bring her in, although the question is not raised by demurrer or answer. Cooh v. Lake, 50 App. Div. 92 ; 63 Supp. 818. Jf irohers are sued hy a vendor for purchase money paid the brokers for a saloon of the vendor, and such brokers seek to join as a codefendant the vendee of the saloon, Avho has brought action against them to repudiate his bargain, such vendee will not be joined as a codefendant ; for the liability of the brokers to the vendee and to the vendor does not de- pend upon the same state of facts. Sullivan v. Crowe, 12i App. Div. 5 ; 76 Supp. 98. 14r. Partnership actions. — An action on a partnership lia- bility must be brought against the members of the partner- ship, and a judgment against one partner will not be upheld, even if he admitted that he assumed his firm's debts at disso- lution. I^ew York Fastener Co. v. Wilatus, 65 App. Div. 467 ; 73 Supp. 67. It must be brought against the members, it seems, regardless of whether all the defendants could be actually served. Wildrick v. Heyshem, 96 App. Div. 515 ; 89 Supp. 78. See Sparks v. Foga/rty, 93 App. Div. 472 ; 87 Supp. 648. A partner was sued individually for his alleged fraud re- specting the financial condition of his firm ; he demurred on the ground of nonjoinder of his copartners ; demurrer over- ruled. Hyde <& Sons v. Lesser, 93 App. Div. 320. The defendant alleged that the contract sued on was made with himself and his copartner ; his evidence was excluded on the ground that it attempted merely to set up nonjoinder of the copartner and was insufficient pleading ; Held, this evidence should have been admitted ; it constituted a valid defense for 606 bradbuey's Lansing's forms and practice. Defendants. the defendant. Wildrich v. HeysJiem, 96 App. Div. 516 ; 89 Supp. 78. Where the action is ietween a surviving partner and the repre- sentative of a partner who has died, the action being for an ac- counting, all the parties to an agreement whereby the entire partnership assets were assigned to the surviving partner with all the partnership liabilities should be joined. Smith v. Irvin, 108 App. Div. 218 ; 95 Supp. 731. One of two persons who open am, account may not sue the stoohhrohers with whom the account is opened, for the purpose of having the account severed, without making the other per- son either plaintiff or defendant. Levy v. Popper, 104 App. Div. 457 ; 93 Supp. 842. In an action against a bank by a plaintiff who alleges that the person who opened the account gave him the account, the plaintiff will be unable to bring in both such person and those who would be his representatives if he were dead. Tyrrel v. Seamen's Banlc, 57 App. Div. 381 ; 68 Supp. 275. 15. Action for accounting. — In an action for an account- ing, it being in equity, judgment may be sought against a de- fendant individually and as executor and trustee. Donnelly v. Lambert, 62 App. Div. 189 ; 70 Supp. 963. In an action by a beneficiary for an accounting by trustees, and the removal of one, all trustees who have acted as such, and have not been discharged, should be joined as defendants. Hamilton v. I^'a- her, 33 Misc. 64 ; 68 Supp. 144. An action brought to obtain an accounting by trustees, is not demurrable for defect of par- ties defendant, w^here such persons will be necessary parties only if the trustees make certain charges against the fund. Steinway v. Steinway, 78 App. Div. 207 ; 79 Supp. 541. 16. Insurance litigation. — In an action to recover on a life insurance policy, a person who claims an interest in a pol- icy adverse to the plaintiff, is not a proper defendant, the ac- tion being one at law. McOdbe v. MoCabe, 67 App. Div. 589 ; 73 Supp. 852. Where a beneficiary sues on a life insurance contract, by which he was to receive whatever deceased owed PARTIES. 607 Defendants. him, the balance to go to the widow, the latter alleging that deceased owed the beneficiary nothing, has the right, under Code Civ. Pro. § 452, to be brought in as a defendant. Mon- tague V. Jewelers' c& Tradesinen^s Co., 44 App. .Div. 224 ; 60 Supp. 680. 17. Action Iby assignee. — If the assignee of part of a claim is suing to recover his part it is improper for him to join as codefendants the assignor and the assignee of another part, when the plaintiff states no cause of action against these co- defendants and the debtor does not demand their presence as parties. Chase v. Deering, 104 App. Div. 192 ; 93 Supp. 434. 18. A judgment creditor of a bankrupt is not entitled, under Code Civ. Pro. § 452, to be a defendant in an action brought by the trustee in bankruptcy of the bankrupt to reach an alleged surplus from a trust fund created for the bankrupt's benefit. Smith v. Belden, 35 Misc. 113 ; 71 Supp. 246. 19. Suit to construe will. — la a suit to construe part of a will two trustees, originally made defendants with others, resign their trust ; they are not entitled to an order striking out their names as parties. Rothschild v. Ooldenherg, 58 App. Div. 293 ; 68 Supp. 1095. 20. Undisclosed principals. — A demurrer for misjoinder of parties defendant, such defendants being the agent and other undisclosed principals, and the action being one for breach of an agreement by delivery of goods in damaged con- dition, will be overruled. Amsrican Trading Co. v. Wilson Sons Co., 37 Misc. 76 ; 74 Supp. 718. 21. A defendant having denied conversion and having pleaded title in a third person, the plaintiff cannot make such third person a defendant if he objects. Ten Eydk v. Keller, 99 App. Div. 106 ; 91 Supp. 169. 22. Action against surety. — In an action against a surety upon an undertaking, the principal is entitled under Code Civ. 608 Bradbury's Lansing's forms and practice. Relators. Pro. § 452 to be a defendant, where he has been notified by the surety to defend the action. Feiriburg v. American Surety Co., 33 Misc. 458 ; 67 Supp. 868 ; Kinney v. Beid Ice Cream Co., 57 App. Div. 206 ; 68 Supp. 325. IV. EELATOES. FORM. NO. PAGE. 340. Request to the attorney general to sue to annul a corporation's charter - 610 1. A relator is one who, by leave of court, brings an in- formation in. the nature of a quo warranto. II Bouvier, 14th Ed., p. 433. He is one who brings an action which, in form, is in the name of the people of the State of New York. The title of the action, where there is a relator, is : The People of the State of New Torh ex rel. A. B. v. 0. D. State writ. — When a State writ is awarded on the applica- tion of a private person it must show that it was issued upon the relation of that person. Code Civ. Pro. § 1994. 2. Mandamus. — The people, or the relator, may demur to the return, made to an alternative mandamus, or to any com- plete statement of facts, therein separately assigned as the cause of disobeying the command of the writ, on the ground that the same is insuificient in law, upon the face thereof. Code Ciw. Pro. % 2078. Must he brought in name of people. — If a proceeding is not brought in the name of the people on the relation of the plaintiffs, as required by Code Civ. Pro. § 1994, the court has no jurisdiction to grant a peremptory writ of mandamus. People ex rel. Doran v. Harwich, 48 App. Div. 599 ; 62 Supp. 897. Must not seeh to do wrong. — The relator, in seeking a man- damus, must not have as his object the accomplishment of a wrong. People ex rel. Sherwood v. Bd. Canvassers, 129 N". Y. 360; citing High's Extraordinary Legal Remedies, §§ 40, 14, 26. PABTIES. 609 Relators. Code Civ. Pro. % 2070, providing that " a peremptory writ of mandamus may be issued, in the first instance, where the applicant's right to the mandamus depends only upon ques- tions of law," does not dispense in anywise with the neces- sity of complying with the provisions of Code Civ. Pro. § 1994. People ex rel. Doran v. Harwich, 48 App. Div. 599 ; 62 Supp. 897. Alternative mamdamus order not afpealdble. — Where an ap- plicant for a position at a city pumping works, obtained an alternative writ of mandamus, against the water commission- ers, it was held that the order was not appealable ; it might be demurred to, or the commissioners might make a return which might be demurred to by the relator. People ex rel. Acker- man V. Lumb, 6 App. Div. 26 ; 39 Supp. 514. 3. Where person claims to be a public officer. — An ac- tion by a relator for mandamus will not lie to restrain a party claiming to be a public officer from exercising his office. People ex. rel. Faile v. Ferris, 76 N. T. 326. 4. Action to dissolve a corporation. — An action to dis- solve a corporation, in either of the cases specified in Code Civ. Pro. § 1785, may be maintained by a creditor or stock- holder of the corporation, on obtaining leave, which he may have, if, after he has submitted to the Attorney General, a written statement of facts, verified by him, showing grounds for an action under the provisions of Code Civ. Pro. § 1785, the Attorney General omits for sixty days after its sub- mission to commence an action. Code Oiv. Pro. § 1786. Detailed facts necessary .—Ixi. such an action, facts should be given, not opinions; and the facts should be in detail. People V. Mamhattam, Real Estate and Loan Co. of N. T., 175 N. Y. 133. Precedence given such action. — An action by a creditor or stockholder of a corporation, as relator, under Code Civ. Pro. § 1786, to annul its charter, would probably take precedence over a proceeding for voluntary dissolution brought by the Vol. 1—39 610 Bradbury's Lansing's forms and practice. Relators. corporation's directors, although the latter proceeding was first begun. See Matter of Murray Hill Bank, 153 N. Y. 199. 6. When relator unnecessary. — There need not be a re- lator, in an action brought by the Attorney General in the name of the People, to remove a corporation's trustees. People V. Ballard, 134 N. T. 269. Nor in an action brought by him under the Banking Law, when the Superintendent of Banks has reported to him that an institution is in an unsafe condition. People v. Mercantile Oo-Operaiime Bank, 53 App. Div. 295 ; 65 Supp. 766. Form No. 340. Request to Attorney G-eneral to Sue to Annul a Corporation's Charter. To the Attorney General of the State of New York. You are hereby requested to bring an action against {Jiere insert name of corporation), of , and its directors, to annul the charter of said company. The grounds upon which such action is requested to annul the charter are as follows : {Sere give the facts in some detail, hut concisely)} The undersigned hereby agrees to furnish security satis- factory to the Attorney General to indemnify the People of the State against costs in any actions brought on this application. Dated, A. B., applicant. {Address of applicant.) (Affidavits showing the truth of the charges made should be annexed to the application.) I See paragraph 4, ante^ p. 603. Also title Leave to Sue, subdivision Actions in nature of- quo warranto, pp. 33 et seq, and forms Nos. 24 and 25, p. 87, ante. PABTIBS. 611 Intervention. V. INTEKVENTION. FOBMS. NO. PA.GP;. 341. Order bringing in a person allowed to intervene 615 342. Affidavit on application to intervene 616 343. Petition for leave to intervene 618 1. Intervention defined. — Intervention is the act by which a third party becomes a party in a suit pending between other persons. I Bouvier, lith Ed., p. 'T44. The distinction be- tween the topics Intervention and Bringing in New Parties, as used in this work, is not fully shown by Bouvier's defini- tion. The former comprises the cases where the act of com- ing in is on the application of the party so coming in ; the lat- ter, those cases where the new party is brought in on the application of another person. 2. Application to legal and applicable suits. — It has been said that in an action at law a plain tifif cannot be compelled to bring in any other parties than those he has chosen. West- inghouse, C, K. cfe Co. v. WycTcoff, 81 App. Div. 294; 81 Supp. 49. And it has also been held that the Supreme Court has no authority under Code Cvo. Pro. § 452 to compel the plain- tiff, in an action in which a money judgment only is sought, and in which the title to no specific property is involved, to bring in as a defendant a third party on his own application. Bauer v. Dewey, 166 N. Y. 402. But in an action at law, where title to specific property is involved, intervention may be allowed to a third party on his own application. Bosen- herg v. Salomon, 144 N. Y. 92 ; Hilton Bridge Oonstruotion Go. v. W. Y. C. (& H. R. E. Co., 145 N. Y. 390. While, therefore, the rule that intervention can be allowed only in equitable actions must be deemed to be overruled by Code Civ. Pro. § 452, yet it is allowed only in certain classes of ac- tions at law, particularly those where the title to specific, tangible property is involved. 3. When court must grant intervention. — "Where a per- son, not a party to the action, has an interest in the subject 612 bradbuby's Lansing's forms and practice. Intervention. thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands reUef, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. Code Civ. Pro. §462. Section JfB'B amended. — It was in 1901, by L. 1901, c. 512, that the amendment was made to § 452 which directs the court, on application of a person who has an interest " in real property for injury to which the complaint demands relief," to bring in such person as a party. 4. If action is for money judgment only. — The Supreme Court has no authority to grant intervention in an action in which only a money judgment is sought, title to no real, spe- cific or tangible personal property being involved. Bauer v. Dewey, 166 JST. Y. 402. In an action for a money judgment only, the plaintiff cannot be compelled to bring in as a defend- ant a third party who applies to the court to be permitted to intervene. Long v. Burhe, 105 App. Div. 457; 94 Supp. 277. A person with a claim, simply a money demand, can- not be allowed to intervene in an action in the Supreme Court and on trial before a referee ; even if he alleges that the de- fendant is in collusion with the plaintiffs, who are her chil- dren. Eonigbaum v. Jaohson, 97 App. Div. 527 ; 90 Supp. 182. See paragraph 2, ante. 5. No reason for party to intervene. — A party to the ac- tion is entitled to notice of all proceedings therein ; a motion by a defendant for leave to intervene in an accounting be- tween the plaintiff, and his codefendants is improper as he may participate therein without an order. Ingersoll v. Weld, 101 App. Div. 365 ; 91 Supp. 1037. 6. Corporations. — Where stockholders move to intervene in an action, and to vacate or modify an order for the ac- ceptance by the receiver of the corporation of a proposal to PARTIES. 6l3 Intervention. purchase certain of the corporation's property and release the directors from personal liability, intervention should not be allowed, if no adequate reason is given for vacating the order the making of which is the basis for the motion to in- tervene. People V. Anglo-American Savings c& Lomi Assn., 66 App. Div. 9 ; 72 Supp. 1021. Bondholders are not entitled to intervene in an action for purchase money by the city that issued the bonds, where the city is not seeking to impress a lien on any of the bonds which had passed out of the possession of the defendants, to whom it originally sold the bonds. City of Ironwood v. Coffin, 39 Misc. 278 ; 79 Supp. 502. Stockholder, contvngently liable. — In an action against a corporation, defended by the corporation's receiver, a stock- holder, contingently liable on notes, was given the privilege of intervening, where the receiver had placed himself in an- tagonism to this stockholder. Hosmer v. Darrah, 85 App. Div. 485 ; 83 Supp. 413. 7. Action to obtain permit. — In an action to obtain a per- mit to disconnect a water pipe, a new occupant of the prem- ises affected has no right of intervention. People ex rel. CBrien v. Equitable Life Assura/nce Society, 55 App. Div. 528 ; 67 Supp. 418. 8. Action against city. — A person who claims damages for injury he says was done to his realty by reason of the neg- ligence of a contractor in building a sewer, is not entitled to intervene in an action brought against the city by the contrac- tor for his compensation, on the plea that the city was to be indemnified for such damage. Mansfield v. Mayor, etc., of New York, 165 N. T. 208. 9. Teacher's action for pay. — A teacher sued for pay ; taxpayers who alleged collusion between the teacher and the defendant, the school trustee, were allowed to intervene on condition that they employ the trustee's attorney ; this con- 614 Bradbury's Lansing's forms and practice. Intervention. dition was improper. 0' Connor v. Hendrich, 90 App. Div. 432 ; 86 Supp. 1. 10. Mortgage foreclosure. — A creditor of a defendant is not, as such, entitled to intervene in an action to foreclose a mortgage on real property ; where such a creditor seeks to intervene, he must show by competent proof that he has a meritorious defense to the action if he should be admitted as a party. Bouden v. Longacre Square Bldg. Co., 92 App. Div. 325 ; 86 Supp. 1080. If an alleged assignee seeks to foreclose a mortgage, and the mortgagor puts in issue the assignment to the plaintiff and alleges payment of the debt, the court is not justified, under Code Cm. Pro. % 452, in permitting one claiming to have an in- terest in the mortgage to intervene, for there is, in the action, no dispute regarding the title to any particular real or personal property. Draper v. Pratt, 43 Misc. 406 ; 89 Supp. 356. Ejectment. — Where a person seeks to be admitted as a party defendant to an action in ejectment, in which a judgment of eviction had been rendered, and to set aside such judgment, his motion to be admitted will be denied, if he is a mere " squatter," or if he is the assignee of a person who had been a " squatter," but had been evicted. Campbell v. Rockwell, 62 App. Div. 266 ; YO Supp. 1101. 11. Legatee intervening. — ^Where an executor was sued for an accounting, and the executor maintained that there might not be enough funds to pay a certain legacy, the legatee, ■though not entitled under Code Cm. Pro. § 452 to intervene as a matter of strict legal right, was granted the privilege of in- tervening. Mertens v. Mertens, 87 App. Div. 295 ; 84 Supp. 852. 12. Action to construe will. — In an action to construe a will, where beneficiaries are indefinite, the Attorney General is properly permitted to intervene, for under L. 1893, c. 701, he is to represent the beneficiaries in such a case ; the conten- PARTIES. 615 Intervention. tion that the Attorney General " cannot have a standing to represent beneficiaries in this action until those beneficiaries are ascertained," is fallacious. Eothschild v. Qoldenherg, 85 App. Div. 499 ; 69 Supp. 523. Form No. 341. Order Bringing in a Person Allowed to Intervene. (Code Civ. Pro. § 452.) [Caption.] On reading and filing the affidavit of A. B., dated , 19 — , showing that he has an interest {state in what manner interested) in the subject of the above-entitled action {or in real property, etc., as provided by § 452), and on motion of 0. D., counsel for said A. B., due notice of this motion hav- ing been served on plaintiff's attorney and no one appearing to oppose {or after hearing, etc.), it is hereby ordered, that said A. B. be made a party defendant in said action ; that the plaintiff amend the summons and complaint accordingly and insert proper allegations in the complaint for that pur- pose, and serve the same upon the said A. B., and that all proceedings be stayed until twenty days after such service. 616 BRADBtJEY's LANSING'S FORMS AND PRACWCfi. Intervention. Form No* 343. Affidavit in Support of Application to Intervene.* [Title of action.] State of , ) ^^ . County of f A. B. and C. D., being duly severally sworn, each for him- self, deposes and says : I. This action was commenced in , 19 — , and is brought to recover chattels of the alleged value, etc. II. The complaint in this action has not yet been served, as I am informed and verily believe ; but this action in replevin is now pending against E. F., as Sheriff of the County of , only. III. The chattels .... described were duly purchased by A. B. & C. D., composed of deponents, from the plaintiff, in the usual course of business, and duly delivered by the plaintiff to the said A. B. & C. D., and the title to said chattels, and each of them, became absolute in the said A. B. & C. D. long prior to the commencement of this action, and the plaintiff in this action was not and is not entitled to, or to obtain the possession of, the said chattels, or any part of them. IV. The chattels affected by this action in replevin are the subject of this action and I have an interest in the subject thereof and make this application to the court to be made a party defendant. V. The plaintiff has neglected and omitted to make the said A. B. & C. D., or either of them, a party defendant to this action. YI. I am advised that I am entitled to be made a party de- fendant to this action, under Sections 447 and 452 of the Code of Civil Procedure, on the ground that I have an interest in 1 The above form is taken from the case of Rosenberg v. Salomon, 144 N. T. 92, in which intervention was granted. PARTIES. 617 Intervention. the subject thereof and that a complete determinatioa of the questions involved herein cannot be had vyithout the presence of said A. B. and C. D. YII. On or about , the defendant herein, said E. F., served a notice that this action will be discontinued within ten days from the service of said notice, unless a bond is fui-- nished to him, indemnifying him against all loss which he might incur in the defense of this action. YIII. I am unable to furnish any indemnity bond, as re- quired by said Sheriff, and unless I am permitted to intervene in this action and defend the same, the said chattels, and each of them, will be retained by the plaintiff and this action will be discontinued and my rights will he seriously Jeopardised, defeated and impaired. IX. I have made no previous application for the annexed order to show cause and the reason why the same, with a stay of proceedings, is sought is, that I apprehend that this action will be discontinued, if the regular notice of motion of eight days is given. Sworn to, etc. A. B. 0. D. 618 bkadbury's Lansing's forms and practice. Intervention. Form No. 343. Petition for Leave to Intervene.^ Supreme Court, County. L. E. M., Plai/nUff, V. F. W. M., Jr., Defendant. In the Matter of the Application of E. E. M., Jr., for Leave to In- tervene in the Above-entitled Action. To THE Honorable, the Supbeme Court in and fob the County of : The petition of R. E. M., Jr., by J. Y. S., his guardian ad litem, respectfully shovs^s to the court : Prior to the day of ,19 — , the defendant F. W. M., Jr., was associated in business as a copartner with his father, F. "W". !M., and his brother, E. E. M., under the firm name of F. W. M. & Sons. The firm was engaged in the business of manufacturing and selling cigars in N". Y. City. On the above-mentioned date E. E. M. died, leaving him sur- viving his wife L. E. M., who is the plaintiff herein, and the infant son E. E. M., Jr., on whose behalf the present appli- cation is made. In , 19 — , F. W. M., Sr., died, leaving the defendant F. "W". M., Jr., the sole surviving partner of the firm and sole executor of the last wiU and testament of his father. Under the will of F. W. M., Sr., a legacy of $25,000 was left to the infant E. E. M., Jr., your petitioner. After 1 The above form was taken from the case of Mertens v. Mertens, 87 App. Div. 295 ; 84 Supp. 352, in ■which it was held that Intervention was under the circumstances properly allowed. The language used is that of the court in stating the case and does not follow exactly that of the petition. PARTIES. 619 Intervention. the death of his father F. "W". M., Jr., continued to carry on the business formerly conducted by the firm under the firm name and continues to use the same and the good will and assets connected therewith and has rendered no accounting of such property. Prior to the commencement of this action and in , 19 — , a proceeding was instituted by L. E. M., as general guardian of R. E. M., Jr., the present applicant, for an accounting by F. E. M., Jr., as executor. The executor filed an account therein claiming that the balance in his hands of the assets of the copartnership only amounted to $16.19. Upon the hearing had in that proceeding, the surrogate found that there was property of the value of $5,019.17 in the hands of the executor belonging to the estate and charged the ex- ecutor therewith. The surrogate also found that this sum was exclusive of the value of the good will, assets, and unliq- uidated accounts of the firm, but as to such matters the sur- rogate refused to entertain an accounting of the same and de- creed in respect thereto that the parties should be left to an action for an accounting in a court of competent jurisdiction, the surrogate holding that he had no jurisdiction to inquire into and adjudicate upon such matters. Thereupon and in , 19 — , L. E. M. as administratrix commenced this action and the present applicant asks that the infant E. E. M., Jr., be permitted to intervene for the protection of his inter- est in the $25,000 legacy left to him in his grandfather's will. Wherefore the said petitioner prays that an order be entered granting leave in the said action to the infant E. F., by Gr. H., as his guardian ad litem, to intervene in said action and to be added as an additional party defendant to the same, and that the said Gr. H., be appointed guardian ad litem of said infant ; . . . . ; and for such other and further relief in the premises as may be just with the costs of this application ; and your petitioner will ever pray, etc. E. F., By G. H., His Guardian ad litem. 620 SraDbtjry's Lansing's forms and practice. Bringing in New Parties. YI. BEINGINa IN NEW PARTIES. FOBM. NO. PAGE. 344. Order bringing in new parties 621 1. Bringing in new parties to an action is, as a topic in this work, distinct from Intervention in that in the former the new party does not enter the proceeding, at least not pri- marily, on his own application. 2. When court must order other parties brought in, — Where a complete determination of a controversy cannot be had without the presence of other parties, the court must di- rect them to be brought in. Code Civ. Pro. § 452. Receiver pendente lite. — A plaintiff, in a suit for fee and rental damages against an elevated railroad, may have the vg- ceiYev pendente lite of the company brought in as a defendant. Matter of Jacdbson, 23 App. Div. 75 ; 48 Supp. 420. Party'' s waiver does not affect courts position. — Although an objection as to want of parties has been waived, that fact does not deprive the court of its power to direct parties to be brought in, in furtherance of justice. Thompson v. N. Y. El. R. R. Co., 16 App. Div. 449 ; 45 Supp. 64. In proper cir- cumstances, it is the duty of the court to order such parties brought in. Elias v. Schweyer, 13 App. Div. 337 ; 43 Supp. 55. 3. Mere direction insnUicient. — Where the court merely directs that a third person be made a party defendant, that alone is insufficient to bind such person. Hood v. Hood, 86 ]Sr. T. 561 ; Lehrer v. Walooff, 47 Misc. 112 ; 93 Supp. 540. 4. Conditions must he ohserred. — If, after an answer has been fully framed, a defendant is admitted to the action, on condition that the prior proceedings should not be affected, he will not be allowed to serve an amended answer. TompTcvns V. Continental Nal/ional Bank, 71 App. Div. 330 ; 75 Supp. 1099. PAETIES. 621 Bringing in New Parties. 5. Bringing in additional tort feasor.— Under Code Civ. Pro. % 723, it has been held that the court may order brought in as a party defendant, a railroad company alleged to be jointly and severally liable for a negligent act with a city and an- other railroad company, against which the action was origi- nally brought. Sahun v. Brooklyn Heights Railroad Co., 82 App. Div. 560 ; 81 Supp. 859. Form No. 344. Order Bringing in New Parties.* [Caption.] The plaintiff's motion that A. B. and C. D. be joined as additional parties plaintiff in this action coming on to be heard, on reading and filing the affidavit, and notice of motion and due service thereof, and after hearing counsel, , and it appearing that in and by the said will of E. F., the premises No. were devised upon the following trust, to wit : To collect and receive the rents, issues and profits thereof during the life of the testator's daughter, G. H., and to pay over the net income to said G-. H. semiannually dur- ing her life, and upon her death to convey the said premises to her lawful issue, to have and to hold the same to them and their heirs forever. And it further appearing that during the pendency of this action, to wit, on the day of , 19 — , said G. H., departed this life leaving her sur- viving two children, her only lawful issue, to wit, A. B., , and C. D. ; and it further appearing that no formal conveyance has been made to them of the title of said premises, No. , but that the fee of said premises became vested in them by virtue of the terms of said wiU upon the 1 The above form is taken from the case of Thompson v. N. Y. El. B. R. Co., 16 App. Div. 449 ; 45 Supp. 64. 622 Bradbury's Lansing's forms and practice. Substitution. death of said G. H. , and that they have re- ceived the rents, issues and profits of said premises. And it further appearing that the said A. B. and C. D. are entitled to the rental damages sustained in respect to said premises since the day of , , and that they are entitled to an injunction to protect their interest in said premises from the trespasses of the defendants, and that they have power and authority to make a good title to the easements now be- ing used by the defendants in case an injunction should be de- creed in this action, and the defendants should desire to acquire the said premises by purchase, or by proceedings taken at the foot of the judgment ; Now, on motion of I. J., plaintiff's attorney, it is hereby Oedeeed, that said motion be granted, and that A. B. and C. D. be joined as additional parties, plaintiffs in this action, and it is further Oedeeed, that within twenty days after the entry of this order a supplemental complaint be served, etc. Oedeeed, that none of the recitals herein contained shall be conclusive upon the defendants upon the trial of this ac- tion. Enter. K. L. J. S. C. VII. SUBSTITTTTION. FORMS. NO. PAGE. 345. Order of substitution 624 346. Petition for substitution 625 1. Substitution, as used in this topic, means the action of the court in directing a new party to be put in the place of one already a party to an action. The topic of Substitution of Attorneys will be found at p. 572, cmte. PARTIES. 623 Substitution. A successor of a receiver having heen appointed intermedi- ate the commencement of the action and the trial, the action cannot be further prosecuted until the new receiver has been substituted in place of the original plaintiff. Hegewisch v. Silver, 140 N. Y. 414. It is under Code Civ. Pro. % 785 et seq., that the executors of a deceased party should proceed if they wish to become parties in his place. Callanan v. Keese- ville, etc., B. R. Co., 48 Misc. 476 ; 95 Supp. 513. Where an order of substitution is granted because of the death of a party, the fact of such death need not be proved on the trial. Smith V. Zalinshi, 94 N. Y. 519 ; Gibson v. National Park Bank ofN. Y., 98 N. Y. 87. In case of a tram,sfer of interest, or devolution of liability {pendente lite), the action may be continued by or against the original party, unless the court directs the transferee, etc., to be substituted or joined as a party. Code Civ. Pro. § 756. See Hawkins v. Mapes-Beeve Construction Co., 178 N. Y. 236. 2. Person entitled to be substituted may appeal. — A person aggrieved, w^ho is not a party, but is entitled by law to be substituted, in place of a party ; or who has acquired, since the making of the order, or the rendering of the judgment ap- pealed from, an interest, which would have entitled him to be so substituted, if it had been previously acquired, may appeal. Code Civ. Pro. § 1296. But he must not unreasonably neg- lect to procure an order of subtitution. Id. 3. Indemnitors may be substituted. — In 1900, Code Civ. Pro. § 1421 was amended to read that the court may sub- stitute indemnitors as defendants in an action against an offi- cer ; this section formerly read : the court shall. L. 1900, c. 115. 4. A bond or undertaking is not affected by substitu* tion, or any other change of parties. Code Civ. Pro. § 815. 624 Bradbury's Lansing's forms and practice. Substitution. 5. When "Richard Boe" is party. — In an ejectment ac- tion, " Eichard Koe " was named as a defendant ; subsequently " Eichard Eoe's " real name was ordered substituted ; he was allowed to defend, although he had ignored an intermediate complaint in which he was not named. Jones v. Brooke, 52 App. Div. 421 ; 65 Supp. 205. 6. A judgment creditor hronght action to set aside cer- tain transfers made more than four months before a certain firm was adjudged bankrupt ; the trustee in bankruptcy moved to have himself substituted as plaintiff ; Held, that he should not be substituted. Ninth National Bank v. Moses, 39 Misc. 664 ; 80 Supp. 617. Form No. 345. Order of Substitution.* [Caption.] Upon the notice of motion herein, dated , and the affidavit of A. B. annexed thereto, ; and it ap- pearing to the court that C. D. claims that since the date of issue of the pleadings in this action, he has become the as- signee and owner and holder of all the rights in this action of the plaintiff E. F. above named, and the said C. D., apply- ing to the court to be substituted in this action in the place of the said E. F. as plaintiff, and it appearing to the court that, pending this action and heretofore, and since the date of issue of the pleadings in this action, the plaintiff G. H. has died ; and at the time of the issue of the warrant of attach- ment and proceedings taken thereon , said G. H. was the Sheriff of the City and County of , and I. J. was 1 The above form is taken from the case of Gibson v. National Park Bank of N T., 9S N. Y. 87, in which it was hejd that substitution was properly directed. PARTIES. 625 Substitution. Under Sheriff of the City and County of , and that the said 1. J. thereafter, and up to the death of said G. H., continued to be and is now such Under Sheriff ; and the said I. J. is such Under Sheriff now applying to the court to be substituted as plaintiff herein in the place of said G. H., as Sheriff aforesaid, Upon motion of , and appearing in oppo- sition to said motion. It is Oedeeed, First. That C. D. be, and he is hereby, substituted as plain- tiff in this action in place of E. F. Second. — That I. J., as Under Sheriff and acting Sheriff of the City and County of be, and he is hereby, sub- stituted as plaintiff herein in place of G. H., deceased. Sheriff as aforesaid, and that this action is hereby revived and con- tinued as to the plaintiffs herein in the names of C. D. and I. J. as Under Sheriff and acting Sheriff of the City and County of . Form No. 346. Petition for Substitution. * [Title of action.] To the Supreme Court of the State of New York : The petition of A. B., of the City of , respectfully shows that your petitioner is informed and believes that the above-entitled action was commenced , for foreclo- sure, etc. And your petitioner further shows that : The petition here set forth that the original plaintiff in an action tofordose a mort- gage had been convicted of forgery, and that after issue joined 1 The above form is from the case of Smith v. Zalinski, 94 N. T. 519, where substitution was granted. Vol. 1—40 626 beadbury's Lansing's forms and practice. Amendments. such plaintiff had made a general assignment for the tenefit of creditors to the petitioner, who thereupon became the real party in interest. Wherefore your petitioner prays that he may be substi- tuted as plaintiff in said action in the place of said C. D., and that said action may be continued in the name of your petitioner, and that he may have such other and further re- lief as the court may deem just. Dated, etc. A. B. VIII. amendments. FOB.MS. NO. PAGE. 347. . Affidavit in support of motion -to. amend summons to cor- rect an error in the Christian name of the defendant after his default 628 348. Affidavit as to true name of defendant sued by misnomer 629 349. Order granting a motion to amend summons correcting the Christian name of defendant 630 1. An amendment is the correction, by allowance of the court, of an error committed in the progress of a cause. The Tcey-word is the word "mistake" in the law on this topic. The courts have been given " the amplest power to cor- rect mistakes in process pleadings, and in all other respects, so long as the substantial rights of parties are not affected." Beath V. iT. Y. B. L. B. Co., 146 N. T. 260. 2. Broad powers to amend, — The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a part}"^, or by correcting a mistake in the name of a party, or a mistake in any other respect. Code Civ. Pro. § 723. PARTIES. 627 Amendments. Jjiheral rather than na/rrow construction has always been given this section by the Court of Appeals. Martin v. Some Banki 160 N. Y. 190 ; Heath v. N. Y. B. L. B. Co., 146 N. Y. 260. * Whether to amend, is not wholly discretionary. — " When a power is granted for the sake of justice, an exercise of it may be enforced in a proper case. It is not wholly discretionary." Tighe y. Pope, 16 Hun, 180. Change of one letter proper. — To allow an .amendment of a .plain tiff's, surname by one letter is proper. Mitterwalner Y. Supreme Lodge of Knights and Ladies of Golden Star, 90 Supp. 10T6. How far the court can go under § 723, is discussed in Li- causi V. Ashworth, 78 App. Div. 486 ;. 79 Supp. 631 ; which held that the court had no power under this section to substitute a corporation as defendant, in place of an individual, it having been subsequently learned that this individual was the presi- dent and owner of the corporation. Nor can the court substi- tute' an individual for a corporation. Tilley v. BeverwycTc Towing Co., Z^ Misc. 380 ; 67 Supp. 461. New Yorh State Monitor 'M. P. Assn. Y.Pemington- Agricultural Wo?'ks, 89 N. Y. 22, holds that this section " does not sanction an entire change of name of the defendant by the substitution of another or entirely different defendant." In Reilly v. World Publish- ing Co., 14 St. R. 390, the am-endment substituted Press Pub- lishing Co. as defendant, it being a clear misnomer. In Mun- king4^ V. Courier Co., 82 Hun, 575, amendment was also allowed for misnomer. 3. The court can amend, by an ex parte order, an error in the name of the owner of the fee, in the summons aind complaint, in a foreclosure action, after the defendant is in defanlt. This case in effect overruled many former decisions which. held that thfe court did not have jurisdiction where the defendant- defaxiUed:";i%Myi)eM?i!! v. Weil, 167 N. Y. 421. , ■ A. Where the defendant is named in a representative capacity, the Supreme Court has power to strike out the words. 628 Bradbury's Lansing's forms and practice. Amendments. indicating that the defendant is not sued individually. Boyd V. U. S. Mortgage c& Trust Co., 84 App. Div. 466 ; 82 Supp. 1001. Though the case was never put upon the calendar, not being moved by either party, and the plaintiff took no steps for a year and a half after the answer was interposed, a mo- tion by the plaintiff, then made, to change the action from one against the defendants representatively to one against them individually, was properly granted. Kerrigan v. Peters, 108 App. Div. 292 ; 95 Supp. 723. Defendant was sued individually, the words after his name not being preceded by " as " ; after verdict the court amended the summons and complaint so as to hold the defendant repre- sentatively ; on appeal, the judgment thus entered was re- versed. United Press v. AMI Co., 73 App. Div. 240 ; 76 Supp. 692. 5. That the statute of limitations might run as a defense to the parties individually, whereas it would not run if those parties appeared in a representative capacity, is not a reason for denying a motion to amend the complaint, otherwise well founded. Boyd v. U. S. Mortgage and Trust Co., 84 App. Div. 466 ; 82 Supp. 1001. Form No. 347. Affidavit in Support of Motion to Amend Summons to Correct an Error in the Christian Name of a Defendant, after his Default.^ [Title.] State of New Toek, ) . County of f A. B., being duly sworn, deposes and says : That he is the attorney for the plaintiff in this action. That this action is 1 This form in substance was taken from the case of Stuyvesant v. Weil, 167 N. Y. 421, in which it was held that the amendment was properly granted, by an ex parte order, although after the defendant was in de- fault. PARTIES. 629 Amendments. brought for, etc. ; that the summons and complaint herein were duly served on the defendant, E. F., more than twenty- days since, as appears by the affidavit of , which is hereto annexed ; that by inadvertence in the said summons and complaint, the first name of the defendant, E. F., was wrongly stated, to wit : his name was given as ; that at the time of drawing the original summons and complaint, deponent was informed and believed that defendant's first name was -, but that since then he has learned from G. H. that defendant's first name is not but ; that the said Gr. H. has known defendant intimately for at least ten years last past ; that the affidavit of G. H. stating these facts is hereto annexed ; that, notwithstanding this er- ror in the papers, they were duly served upon the defend- ant, E. F., and the person so served was the person against whom relief is sought in this action. Sworn to before me, this, etc., A. B. Form No. 348. Affidavit as to True Name of Defendant Sued by a Misnomer. [Title.] State of New York, ) . County of j G. H., being duly sworn, deposes and says that he is person- ally acquainted with E. F., who resides at , in the State of New York, and deponent is informed by A. B., the attorney for the plaintiff in this action, that said E. F. is the real defendant in this action, and that said E. F. is the person who was served with the summons and complaint herein. De- ponent knows from his long acquaintance with said E. F. that his Christian name is " Edward " F., and not " Earl " F., as stated in the above-entitled action. G. H. Sworn to before me, etc. 630 Bradbury's Lansing's forms and practice. Objections to Parties and Waiver of Objections. Form No. 349. Order Granting Motion to Amend Summons Correcting the Chris- tian Name of a Defendant.^ {^Cajption for Court Order ^ On reading and filing the afiidavit of A. B., sworn to the day of , , the affidavit of G. H., sworn to the day of , , the summons and com- :plaint herein and affidavit of service thereof of — ■- , dated , and the summons and complaint herein as the same are proposed to be amended, it is, On motion of Ordered, that the summons and complaint and all other papers herein be amended by striking out the Christian name " Earl " of the defendant F. where the same appears, and inserting in lieu thereof the name " Edward 'i F'., as on& of the defendants in this action. Enter, G. H., J. S. 0. IX. OBJEOTIONS TO PABTIES AND WAlVEK OF OBJECTIONS. 1. Misjoinder or defect of parties plaintiff. — That there is a misjoinder of parties plaintifif is reason for demurrer, if it appears on the face of the complaint ; otherwise, the objection may be taken by answer. Code Civ. Pro. §498. If objec- tion is not taken, either by demurrer or answer, it is waived. Code Cvo. Pro. §499 ; Jacobs v. N. Y. C. & H. R. R. R, Co., 107 App. Div. 134 ; 94 Supp. 954. Both of the above 1 This f oi-m in substance was taken from the case of Stuyvesant v. Weil, 167 N. y. 421, in which it was held tliat the amendment was properly granted',-^ by an ex parte order, although after the defendant was in de- fault. PARTIES. 631 Objections to Parties and Waiver of Objections. statements apply also to defect of parties plaintiff. Code Cw. Pro. §§ 4S8, 499. See Ward-v. Smith, 95 App. Div. 4-32 ; 88 Supp. 700; Hose v. Durant, 44 App. Div. 381 ; 61 Supp. 15. Jf defendant demtt/rsfor defect of parties plaintiff , this does not present the question whether the party claimed to be necessary should have been joined as a defendant or should be brought in before the trial. Kent v. jEtna Insurcmce Co., 84 App. Div. 428 ; 82 Supp. 81T. 2. Defect of parties defendant. — That there is a defect of parties defendant is reason for demurrer, if it appears on the face of the complaint ; otherwise, the objection may be taken by answer. Code Civ. Pro. § 498. If objection is not taken, either by demurrer or answer, it is waived. Code Civ. Pro. § 499 ; Jacobs v. W. T. C. d; H. R. E. R. Co., 107 App. Div. 134; 94 Supp. 954 ; National Bank of Deposit v. Rog- ers, 44 App. Div. 357 ; 61 Supp. 155. See Ward v. Smith, 95 App. Div. 432 ; 88 Supp. 700. 3. But misjoinder of parties defendant is not ground for demurrer. — New Yorh d; N. H. R. R. Co. v. Schuyler, 17 K Y.' 592; Tew v. Wolfsohn, 77 App. Div. 454; 79 Supp. 286 ; aff'd 174 N. T. 272 ; Hall v. Oilman, 77 App. Div 458 ; 79 Supp. 303. 4. Requisites of defense of nonjoinder — A defense of nonjoinder should state that the parties omitted are alive, within the court's jurisdiction, and in reach of its process. MitUndorf v. N. T. cfe H. B. R. Co., 58 App. Div. 260 ; 68 Supp. 1094; TJllmoM v. Cameron, 92 App. Div. 91 ; 87 Supp. 148. Must state facts. — ^An allegation of defect of parties must state facts which show that the party objected to is not the real party in interest. W&rik v. City of New Yorh, 82 App. Div. 584 ; 81 Supp. 583. 6. When defect disregarded.— Though there is a defect of J)arties, it will be disregarded, on appeal, if the attention of 632 Bradbury's Lansing's forms and practice. Objections to Parties and Waiver of Objections. the court was not in any manner directed to the point at the trial ; the defect was waived. Lawrence v. Congregational Church of areenfield, 164 IST. Y. 115. A defect of parties not alleged in an answer is not avail- able. Bauer v. Parker, 82 App. Div. 289 ; 81 Supp. 995. It is not a ground for dismissal of a complaint, the action being one for the foreclosure of a mortgage, that the plaintiff did not make the owner of the premises, who is alleged to be living, a party ; unless the defendant has put in that objec- tion by a plea in abatement ; it is, however, the duty of the court to direct that he be brought in, Donovan v. Twist, 105 App. Div. 171 ; 93 Supp. 990. 6. Objections raised on the trial. — In a proper case, how- ever, despite Code Civ. Pro. % 499, the defendant may, without interposing the objection by answer or demurrer, raise on the trial the question of defect of parties ; Code Civ. Pro. §§ 499, 452, are to be read together. Steinbach v. Prudential Ins. Co., 172 N. Y. 471 ; citing Osterhoudt v. Ulster County Supervisors, 98 E". Y. 239. 7. Waiver of objections. — By retaining an answer of a corporation, where he knew it was not the one he sued, but a corporation into which that one had been merged, a plaintiff was deemed to have waived any objection to the answer hav- ing been made by a party not named in the summons. Klein V. East Bvoer Electric Light Co., 37 Misc. 490 ; 75 Supp. 1000. In a case in which a city was a proper defendant in accord- ance with Code Ci/o. Pro. § 3402, but no precise defect of parties was pointed out, and it was not shown that the city had any such interest at the trial, that without it as a party a complete determination could not be had, the omission of the city as a party was held not fatal to a judgment. Hawkins v. Mapes-Reeves Cons. Co., 178 N. Y. 236. 8. In the Municipal Court, New York, the objection of nonjoinder can only be taken by plea in abatement. Am- PAKTIES. 633 Amendments. sterdam ElectriG Light Co. v. Bayher, 43 App. Div. 602 ; 60 Supp. 330. 9. Where one of the defendants dies. — A complaint will not be dismissed on the ground of defect of parties defendant, where one of the voluntary association which is sued, has died, and the plaintiff has not made his representative a party. O'Connor v. Green, 60 App. Div. 553 ; 69 Supp. 1097. On motion, under Code Civ. Pro. % 758, the plaintiff, it seems, might make such representative a party. 10. When mere motion is insufficient. — If at the begin- ning of a suit, a person is a proper defendant, whose rights or claims should be determined in the action, he cannot, it seems, be stricken out upon a mere motion, against the consent of him who has brought him into court to have those rights fixed. Bothsohild v. G-oldenberg, 58 App. Div. 293 ; 68 Supp. 1095. CHAPTIIR VIII. , ATTACHMENT. Aeticlb I. Natcjbe and gbounds, and pbopbett subject to at- tachment. - II. Proceedings to obtain wabeant. III. The wakkant. ' : : , _ : ' IV. The levy; action in aid of an attachment. . V. Vacating an attachment. VI. DiSCHAEGING AN ATTACHMENT. VII. The undeetaking. I. Nature and geounds, and peopbett subject to attach- ment. i. Attachment defined. — An attachment is " a writ issued at the institution or during the progress of an action, com- manding the sherifif or other proper officer to attach the prop- erty, rights, credits, or effects of the defendant to satisfy the demands of the plaintiff." 1 Bouvier, 14th Ed., p. 163. Blackstone, treating of Attachment as chiefly used at first, namely, a writ " grounded on the non-appearance of the de- fendant at the return of the original writ," calls it the " writ of attachment or pone, so called from the words of the writ, ^ pone per vadium et salvos plegios.^ " Blackstone Comm., Book III, 280. Now, however, Attachment is used chiefly as a warrant to get possession of the defendant's property for the purpose of paying the plaintiff's demand, although the term is still frequently used to designate process issued for the pur- pose of procuring the presence of a person in court. It is not used as an original writ for the last-named purpose, however, but rather as an incidental remedy in an action. Thus, if a witness fails to obey a subpoena, the court may issue an at- tachment requiring the sheriff to bring the witness into court. Also in the case of supplementary proceedings, a debtor who 634 ATTACHMENT. 635 .Nature and Grounds, and Property Subject to Attachment. iajls to obey au order requiring him to appear for examina- tion, may be brought into court by an attachment against his pfersoii, which must be executed by the sheriff, or other proper officer, by bringing the debtor into court. This chapter deals with . attachment against property only. The proceeding is governed by Code Civ. Pro. §§ 635 et seq. Under the Code an attachment . is technically a warrant and not a writ. -Code Civ. Pro. % 1991. But it is frequently styled a writ by "the courts. This writ is. " designed.to give to honest claimants, as against non7residents or fraudulent "debtors, security to render a judg- ment available which might otherwise be lost but for a pre- liminary levy upon such property as may be found." Both V. American Piano Mfg. Co., 35 Misc. 509 ; Tl Supp. 1080. 2. Attachment is proper in most legal actions except for a breach of a contract to marry. — The Code (§ 635) pro- vides that an attachment may be granted in an action to re- cover a sum of money only, for one or more of the following causes : "1, Breach of contract, express or implied, other than a contract to marry. " 2. Wrongful conversion of personal property. ";3. An injury to person or property, in consequence of negligence, fraud or other wrongful act." Prior to 1894 attachment was allowed only in actions for the breach of contracts other than contracts to marry and for wrongful conversion of personal property. By Z. 1894, C. ,738, subdivision S was added giving the right in actions for an injury to property, and by Z. 1895, C. 578, subdivision 3 was amended to read as it does at the present time, so as to give the right to an attachment in most actions where a sum of money only is demanded, except damages for the breach of a contract to marry. ." A;' personal injury' includes libel, slander, criminal con- Tersation, seduction, and malicious prosecution ; also an assault, battery, false imprisonment, or other actionable injury to the 636 Bradbury's Lansing's forms and practice. Nature and Grounds, and Property Subject to Attachment. person either of the plaintiff, or of another." Code Civ. Pro. § 3343, subd. 9. " An ' injury to property ' is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract." Code Civ. Pro. § 3343, subd. 10. Probably conversion of personal property is included in sub- division 3 of § 635, when read in connection with subdivisions 9 and 10 of § 3343, and under § 635, as it now stands, and con- sidering the definitions in § 3343, an attachment is proper in most forms of legal actions, where a sura of money only is de- manded, except those for the breach of a contract to marry. In an action for seduction under promise of marriage the plaintiff would be entitled to an attachment. It is not allowed in equitable suits ; nor actions in replevin ; nor in an action by an administrator to recover for injuries causing the death of his intestate, as such an action is not founded on an " injury to property " nor a " personal injury " within the meaning of Code Civ. Pro. § 3343, subds. 9 and 10. James V. Signell, 60 App. Div. 75 ; 69 Supp. 680. 3. An order of arrest and a warrant of attachment may be had in the same action, and it is discretionary with the court to determine when resort may be had to both remedies. People V. Tweed, 63 N. Y. 202. There are many cases in which one can be allowed and not the other. PocJcford, R. I. cS; St. L. R. B. Co. V. Boody, 56 N. Y. 456. But the " very fact that there are cases which according to the terms of the Code fall alike under the description of cases in which arrest and attach- ment are respectively allowed, seems strongly to indicate that, in those cases, there is at least no absolute incongruity in both modes of proceeding in the same action." Id. In a case where ample property had been attached, and it was doubtful whether the order of arrest was proper, the plaintiff was required to elect. Duncan v. Quest, 2Y Hun, 467. But where an applica- tion for an order of arrest, an injunction, and a warrant of at- tachment, or two of them, is made, in the same action, against the same defendant, the court or judge may, in its or his dis- ATTACHMENT. 637 Nature and Grounds, and Property Subject to Attachment. cretion, if it satisfactorily appears that two or all of them are not necessary for the plaintiff's security, require the plaintiff to elect between them. Code Civ. Pro. § 719. 4. Attachment discretionary with court. — The general rule undoubtedly is that the court may, in its discretion, either re- fuse to grant a warrant of attachment or may vacate it if it has once been granted. Sartwell v. Field, 68 N. Y. 341 ; Haebler V. Bernha/rtli, 115 N. Y. 459. " The general rule proceeds on the ground that plaintiff in an action has no absolute legal right in any case to the issuance of an attachment against the property of the defendant. The court or oflBcer to whom an application for an attachment is made may deny the application, although a formal case may be made, either because the facts are stated with too much generality, or the case made is not, in the opinion of the court or judge, sufficiently plain to justify this extraordinary remedy, or instead of denying the applica- tion absolutely, the court or officer may require additional proofs of the jurisdictional facts, although there is not an en- tire absence of evidence of their existence in the proofs pre- sented." Haebler v. Bernharth, 115 ¥. Y. 459, 462. But where the proceeding to vacate the attachment is taken lyy a subsequent lienor and not by the defendant in the action, the question is one of strict legal right and no question of dis- cretion is presented. The sole point then to be determined is as to priority in point of law of the liens of the respective parties. It is then purely a question whether there is jurisdic- tion to grant the attachment on the papers presented. Haebler V. Bernharth, 115 N. Y. 459. Under the old practice where an appeal was allowed to the Court of Appeals from an order vacating or refusing to vacate an attachment, it was necessary that the order from which the appeal was taken should show that the action of the court be- low was not discretionary with it, otherwise the appeal would not lie. Brooks v. Mexican Nat. Constr. Co., 93 IST. Y. 647. And the same rule prevailed on an appeal from the old general term of the City Court of the City of New York to the Court 638 bbadbuey's Lansing's forms and practice. Nature and Grounds, and Property Subject to Attachment. of Common Pleas. Bodd v. Averill, li Misc. 518 ; 35 Supp. 1070. But this rule as to discretion only applied where the motion to vacate was made by the defendant, and when made by a subsequent lienor the question to be determined was one of strict legal right as to which the court below had no dis- cretion. Haebler v. Bernharth, 115 JST. Y. 459. In all cases the writ of attachment is purely a statutory right and there must be a strict compliance with the statute. Jones V. Fuchs, 106 App. Div. 260 ; 94: Supp. 457. . . -. 5. A proceeding in rem. — "The proceeding by attachment is a proceeding m rem, and the res must be seized or attached, or at least be within the jurisdiction, in order to confer juris- diction upon the court." Garr v. Corcoran, 44 App. Div. 97 ; 60 Supp. 763. 6. If a United States Court grants an attaichment, the prop^ erty so attached is thereby brought into the exclusive jurisdic- tion of the Federal tribunal, provided the attachment was. filed in the office of the proper United States Court clerk '; the State Courts cannot disturb such jurisdiction. Bea/rdslee v. Ingraham, 183 K Y. 411. But a Federal Court cannot acquire jurisdiction by attacli- ing property even over the property attached, unless the sunj- inons has previously been properly and personally served on the defendant, within the territorial limits of the court which! grants the attachment. Harlan v. Telegraph Co., 40 Fed.' 308 ; Ex parte Railway Co., 103 U.S. 794. And if the action is begun in a State Court and jurisdiction acquired which would be upheld in the State tribunal, and the action is sub- sequently removed to a Federal Court, jurisdictiqn.may be defeated if it has not been acquired in the manner required by Federal law. Ooldey v. Morning News, 156 U. S. 518, arid cases cited on p. 522. - - \ 7. Where only nominal damages are sought.— If a right to recover nothing more than nominal damages isshownyat- tachment is improper. Walts v. Nichols^ 32 Hun, 2^76.-- ■ - ATTACHMENT. 639 Nature and Grounds, and Property Subject to Attachment. 8. If based on several causes of action. — A warrant of attachment, based on four causes of action, was upheld, but the amount of the plaintiff's demand was limited to the sums stated in the first,^ second and fourth causes of action. Roth V. American Piano Mfg. Co., 35 Misc. 509 ; Yl Supp. 1080. But if the complaint is based on several causes of action as to some of which attachment is improper, the attachment will be vacated. Union Cons. Mining Co. v. Rah% 9 Hun, 208. "Where the words " conversion " and " misappropriation " are used in the complaint, but it appears from the complaint th^l the action is nevertheless one of contract, and the plaintiff has waived the tort, attachment is proper. Foote v. FfoulJce, 55 App. Div. 617 ; 67 Supp. 368. 9. Action for unpaid alimony.— Attachment is proper where a husband is being sued for unpaid alimony ; there is a breach of an implied cohtr&ct. Grevell v. Whiteman, 32 Misc. 279 ; 65 Supp. 974. 10. Contract separable. — An attachment was issued, the ac- tion being on an agreement that the plaintiff, a horse trainer, should receive a certain sum a month and a percentage on the earnings of a horse so trained ;. the agreement to pay a cer- tain sum a month was held clearly lawful, and separable: from the percentage part of the agreement, which might or might not be legal; the attachment was held proper. Sirien v. Stone, 82 App. Div. 450 ; 81 Supp. 597. 11. A nonresident plaintiff may secure an attachment against a nonresident defendant,^ where the action is on contract. Bridges v. Wade, 110 App. Div. 106 ; 97 Supp. 156. If the action is in tort, the court may, in its discretion, enter- tain jurisdiction, and in such a case it would seem that an at- tachment would be proper. Wertheim v. Clergue, 53 App. Div. 122 ; 65 Supp. 750, and cases cited. ^ See paragraph 19, post, p. 645. . 640 Bradbury's Lansing's forms and practice. Nature and Grounds, and Property Subject to Attachment. One foreign corporation seeking to attach the projoerty of an- other foreign corporation must show that the court has juris- diction of the action under Code Oi/v. Pro. § 1780. People v. St. Nicholas Bk, U App. Div. 313 ; 60 Supp. 719. 12. Conversion in wrongfully cashing check. — "Where a receiver of a corporation brings an action against a bank, alleging that it cashed a check wrongfully drawn by the offi- cers of the corporation, and that the bank knew that such act by the officers was wrongful, such an action is in conversion and attachment is proper. Kelsey v. Bank of Mansfield, 85 App. Div. 334 ; 83 Supp. 281. 13. An action to recover for injuries to the plaintiff's intestate is not an action in which attachment is proper. James v. Signell, 60 App. Div. 75 ; 69 Supp. 680. 14. When it may he granted. — A warrant of attachment may be awarded to accompany the summons, or at any time after the commencement of the action, and before final judg- ment therein. Code Cim. Pro. § 638. Though plaintiff was entitled to judgment when the attachment was issued, it was held properly granted. First Nat. B. of Marietta v. Bushwiok Chemical Works, 17 Civ. Pro. E. 229; 6 Supp. 318; aff'd 119 N. Y. 645. 15. What plaintiff must show. Proper cause of action.' — In order to obtain the writ, plaintiff must show, by affida- vit, that one of the causes of action specified in Code Civ. Pro. § 635 exists against the defendant ; and under subd. 1 thereof, he must show that he, the plaintiff, is entitled to re- cover a sum stated, over and above all counterclaims known to hun. Code Civ. Pro. § 636, subd. 1. Nonresidence. — Plaintiff must also show that the defend- ant is either a foreign corporation or not a resident of the State. Code On}. Pro. § 636, subd. 2. 1 See forms Nos. 350 and 351, post. Also see title Proceedings to Ob- tain Warrant, post, pp. 647 et seq. ATTACHMENT. 641 Nature and Grounds, and Property Subject to Attachment. Oi\ if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself con- cealed therein with the like intent. Id. Or, if the defendant is a natural person or a domestic corpora- tion, that he or it has removed, or is about to remove, property from the State, with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete proj)erty with the like intent. Id. Or where, for the pitrpose of procuring credit, or the extension of credit, the defendant has made a false statement in writing, under his own hand or signature, or under the hand or signa- ture of a duly authorized agent, made with his knowledge and acquiescence, as to his financial responsibility or standing. Id. Or, where the defendant, being an adult and a resident of the state, has heen continuously without the State of New York for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in Code Civ. Pro. % 430, or a designation so made no longer remains in force, or service upon the person so designated cannot be made within the State, after diligent effort. Id. A threat to make a/n assignment with preferences is not suf- ficient standing alone to authorize an attachment on the ground of an intended disposition of property to defraud creditors. Evans v. Warner, 21 Hun, 5Y4 ; Wilson v. Britton, 26 Barb. 562. But if used in a coercive manner and there are other slight circumstances showing a fraudulent intent such a threat may be a ground for an attachment. Anthony v. Stype, 19 Hun, 265. Securing credit hy false statement in writing as to financial responsibility. — Under amendments to Code Civ. Pro. §§ 636 and 637, made in 1894, the securing of credit by means of false statements in writing is both a ground for attachment under a cause of action specified in § 635, and also under § 637, en- titles the plaintiff to an attachment without showing any of Vol. 1—41 642 Bradbury's Lansing's forms and practice. Nature and Grounds, and Property Subject to Attachment. the matters specified in §§ 635 and 636, if the cause of action is founded on an injury to property caused by the making of the false statement. 16. Service of summons must follow within thirty days. — " Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days of the granting thereof ; or else, before the expiration of the same time, service of the summons by pub- lication must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in this act ; and if publication has been, or is there- after commenced, the service must be made complete, by the continuance thereof." Code Civ. Pro. § 638 ; Doheny v. Worden, Y5 App. Div. 47 ; 77 Supp. 959. The attachment will be vacated if this provision of the Code is not complied with. Id. Court cannot extend this time. — The preliminary jurisdic- tion, gained by attachment, is at an end after these thirty dkys, and the court is without power to extend the time. Jones V. Fuohs, 106 App. Div. 260 ; 94 Supp. 57. If a sum- mons is served without the State, thirty days after the issuing of the attachment, but subsequently this service is set aside, and while an appeal is pending the thirty days expire, without any other service of the summons, there being no stay, the at- tachment must, on motion, be set aside. Martin v. Smith, 37 Misc. 425 ; 75 Supp. 780 ; aff'd 71 App. Div. 618 ; 76 Supp. 1020. 17. Property suhject to attachment i; legal interests only. — An attachment is leviable only upon legal interests and does not extend to equitable interests. FisTce v. ParTce, 77 App. Div. 422 ; 79 Supp. 327 ; citing Thurler v. Blanch, 50 N. Y. 80 ; Anthony v. Wood, 96 IST. T. 180. Because a consignee is entitled to a commission on lumber, it does not 1 See title Levy, post. ATTACHMENT. 643 Nature and Grounds, and Property Subject to Attachment. follow that he has a leviable interest, as against the owner, in such lumber. Hampton <& Branchville R. E. Co. v. Sizer, 31 Misc. 499 ; 64 Supp. 553. A plaintiff who is suing trus- tees as such cannot attach property which is held by third parties as the property of the same defendants as executors. Belden v. Wilkinson, 33 Misc. 659 ; 68 Supp. 205. Stock. — The stock of a foreign corporation belonging to a nonresident, but in the possession of a resident of this State, is subject to levy under attachment. Simpson v. Jersey City Contracting Co., 165 N. Y. 193. So also is an unpaid sub- scription to stock. Code Civ. Pro. % 646. And the right a de- fendant has in the stock of an association or corporation with the interest and profits thereon. Code Civ. Pro. § 647. Insuromce policies. — The assured's interest in an unmatured policy of life insurance is not such as can be reached by at- tachment unless the policy has, at the time the attachment is issued, a cash surrender value. Marks v. Equitable Life As- surance Society, 109 App. Div. 675 ; 96 Supp. 551 ; citing Columbia Bank v. Equitahle Life Assurance Society, 79 App. Div. 601 ; 80 Supp. 428. The exemption given by L. 1892, c. 690, § 238 [the Insurance Law], which provides that money to be paid by a beneficiary association shall not be levied on, as, e. g., by attachment, is confined to cases where the insur- ance or benefit contracts are still outstanding, and the money has not been paid over to the beneficiary. Bull v. Case, 165 N. Y. 578. Tontine poUcies. — A warrant of attachment cannot be levied on the interest of one holding a tontine life insurance policy, until the insured has elected to take a cash surrender value, which creates a present liability on the part of the company, on which the attachment is served, to pay to the insured a sum of money. Columbia Bk. v. Equitable Life As- surance Soc, 79 App. I)iv. 601 ; 80 Supp. 428. But it can be levied on if the policy is one which, by the Insurance Law, has a surrender value, and if it can be assumed that there is a de- mand subject to attachment under Code Civ. Pro. § 649. Kratzenstein v. Lehman, 19 App. Div. 228 ; 46 Supp. 71. 644 Bradbury's Lansing's forms and practice. Nature and Grounds, and Property Subject to Attachment. It can he levied on afire insurance policy under which a loss has occurred ; and the sheriff need not obtain possession of the written policy, for the policy is not an instrument for the payment of money within Code Cvo. Pro. § 649, subd. 2. Trepagnier & Bros. v. Bose, 18 App. Div. 393 ; 46 Supp. 397 ; aff'd 155 N. Y. 637. If a heneficiary of a fraternal organization, his claim having been liquidated, attaches part of its " Relief Fund " which is in a New York bank, his right is superior to that of a tempor- ary receiver appointed for the New York State assets, such receiver having been appointed subsequent to the attachment. National Park BomJc of iT. T. v. G larh, 92 App. Div. 262 ; 87 Supp. 185. A widow's dower right may be attached before admeasure- ment. Latourette v. Latourette, 52 App. Div. 192 ; 65 Supp. 8. Tangible property disposed of in fraud of creditors may be seized by the sheriff who may defend an action against him for the conversion of the property on the ground that such disposition was fraudulent. Binchey v. StryTcer, 28 N. Y. 45. A chose in action may be attached. Code Qiv. Pro. § 649, Subd. 3. Unless there has been a prior assignment thereof, in which case it cannot be attached, nor can the assignment be set aside as in fraud of creditors if the summons is person- ally served on the defendant within the State. Anthony v. Wood, 96 N. Y. 181 ; Throop Grain Clearer Co. v. Smith, 110 N. Y. 83 ; Harding v. Elliott, 12 Misc. 521 ; 33 Supp. 1093. If, however, the summons is served without the State or by publication, and the defendant is in default, the sheriff may, by action, set aside the assignment as in fraud of creditors. Code Civ. Pro. § 655 ; Whitney v. Davis, 148 N. Y. 256. But such an action, if brought before the defendant in the attach- ment action is in default, is premature. Whitney v. Davis, 148 K Y. 256. A hond or promissory note still remains a chose in action although it must be taken into the actual custody of the officer in levying an attachment thereon. Anthony v. Wood, 96 N. Y. 181. awachmen't. 645 Nature and Grounds, and Property Subject to Attachment. A cojitingent lidbility cannot be attached as a chose in ac- tion. Excelsior Steam Power Go. v. Cosmopolitan Puilish- ing Co., 80 Hun, 592 ; 30 Supp. 557 ; Eeversed 154 IsT. Y. 772, on dissenting opinion of Follett, J., which seems to recognize the principle stated above. 18. An attachment against a national Ihank, wliether sol- vent or insolvent, is prohibited. JJ. 8. Rev. Stat. % 5242. Van Heed v. People's Nat. Bank, 173 N. Y. 314. 19. Debts which have a foreign situs. — Deht clue to a nonresident or foreign corporation hy another nonresident or foreign corporation. — As a general rule the debt of a foreign corporation due to a nonresident cannot be attached in New York. Douglass v. Phenix Ins. Co., 138 N. Y. 209. This rule is founded on the doctrine that the situs of the debt is at the domicile of the creditor or that the situs may be at the domicile of the debtor for the purposes of attachment, in either of which events it would be without the State of New York and the debt would thus not be subject to attachment in that State. Douglass v. Phenix Ins. Co., 138 N. Y. 209 ; Lancas- ter V. Spotswood, 41 Misc. 19 ; 83 Supp. 572. Where a Massachusetts limited partnership, having one res- ident partner in New York, owes a Massachusetts corpora- tion, the debt is not attachable in New York State ; the sit%is of the debt is in Massachusetts. National Broadway Bank v. Sampson, 179 N. Y. 213. The same rule applies where the attachment debtor and his debtor are both natural persons and are both nonresi- dents of the State. Carr v. Corcoran, 44 App. Div. 97 ; 60 Supp. 763. As an attachment is in the nature of a writ in rem the debt can only be seized where it has its situs. Allen v. United Cigar Stores Co., 39 Misc. 500 ; 80 Supp. 401 ; Douglass v. Phenix Ins. Co., 138 N. Y. 209. Presum.pt/ion yields to proof of fact. — But the presumption that the situs of the debt is at the domicile either of the 646 Bradbury's Lansing's forms and practice. Nature and Grounds, and Property Subject to Attachment. debtor or of the creditor yields to proof that it is in JSTew York, and where the contract creating the debt is made and is per- formed in that State and the money is to be paid there, the debt may be attached, as the situs of the debt is in ISew York. Lancaster v. Spotswood, 41 Misc. 19 ; 83 Supp. 572. If a foreign corporation which has an oiiice in New York and does business therein, owes money to a foreign corporation having no office here, the debt being incurred in the general course of business, this debt may be attached where a resident of the State of New York is suing the creditor corporation. India Ruhher Co. v. Rats, 65 App. Div. 349 ; 72 Supp. 658. 20. " The real property, which may be levied upon by vir- tue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of be- ing aliened by the defendant." Code Civ. Pro. § 645. The interest of a vendee in possession of real estate under a contract for purchase upon which he has made payment is subject to attachment. Biggins v. MoConnell, 130 N. Y. 482. Mortgagor's interest in land. — The interest in land of one who executed a deed thereto which was intended as a mortgage may be attached. Macauley v. Smith, 132 N. Y. 524. 21. Unissued bonds of a railroad corporation which are in the hands of its agent for sale cannot be attached. Cod- dington v. Gilbert, 17 N. Y. 489. 22. The interest of a chattel mortgagor may be attached, if he has a right to possession of the mortgaged property, which he is enjoying when the attachment is levied. Fair- lanTcs v. Bloomfield, 12 Super. Ct. (5 Duer) 434. But he has no attachable interest after the mortgagee has exercised the right to take possession of the property. Cutler v. James, Goold Co., 43 Hun, 516. Nor has he such an interest if the mortgagee has the right to immediate possession of the prop- erty. Bryan v. Smith, 13 Daly, 331. ATTACHMENT. 647 Preceedings to Obtain Warrant. 23. The interest of one partner in a firm may be attached. AtMn V. Saxton, 77 N. Y. 195 ; Seligman v. Folk, 13 Civ. Pro. R. 77. But all that can be taken is the debtor's share of such surplus as may remain after payment of the firm debts and the adjustment of the accounts of the partners as between them- selves. AtUn V. Saxton, 77 1^. Y. 196. 24. Judgment unenforceable against unattached prop- erty. — If the summons is served by publication, or without the State, against a nonresident, or a foreign corporation, only ' property attached before the judgment was entered can be sold under the execution. Code Oi/v. Pro. % 707. II. PKOCEEDINGS TO OBTAIN WARRANT. NO. PAGE. 350. Affidavit for attaoliment against a nonresident or a foreign cor- poration defendant in an action for breacli of a contract. . . . 662. 351. Tlie same in an action other tlian for breacli of a contract. . . . 664. .352. Affidavit for attachment against absconding debtor-. 664. 353. Affidavit of fraudulent disposition of property 665. 354. Affidavit for attachment against public officer 665. 1. In general. — The directions given in the Code of Civil Procedure, for obtaining an attachment, should be followed explicitly. However, it is not necessary, although it is advis- able, to adopt the words of the statute. Riokerson v. Bunker, 26 Misc. 383 ; 56 Supp. 202 ; Euppert v. Haug, 87 N. Y. 144. Burden on petitioner. — The burden of proving a fraudu- lent intent lies with the party applying for the writ, and cir- cumstances which may create a strong suspicion, but fall short of prima fade proof, are not sufficient. Mohlman Co. v. Landwehr, 87 App. Div. 83 ; Durkin v. Paten, 97 App. Div. 139 ; 89 Supp. 622. If the affidavit is sufficient to call upon the court to exercise its discretion, that is enough to give jurisdic- tion. Waterlury v. Waterhury, 76 Hun, 51 ; 27 Supp. 1114; aff'd 143 N. Y. 625. It is not necessary to allege that the de- 648 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. fendant has property within the State. Lawton v. Kiel, 51 Barb. 30. "Deponent will alleged ■ — Faulty. — If grounds are stated in an affidavit, beginning, " Deponent will allege in bis com- plaint herein," no statement of any fact is given for deponent may change his mind. Axford v. Segume, 70 App. Div. 228 ; 75 Supp. 35. Clerical errors. — If plaintifif's affidavit, alleging that goods were sold September 2, 1905, is " verified June 5, 1905," this is a clerical error and may be treated as surplusage. Vogel- man v. Lewitt, 48 Misc. 625 ; 96 Supp. 207. Some cases hold that if in an affidavit, stating more than one reason for granting an attachment, the disjunctive " or" is used instead of the copulative " and," this is a mere irreg- ularity, for which the warrant will not be vacated if the affi- davit on its face shows sufficient ground for the issuance of an attachment ; but if this defect is in the warrant, it cannot be disregarded. Oronin v. Croohs, 76 Hun, 120 ; 27 Supp. 822, and cases cited ; aff'd 143 N. Y. 852. 2. Sufficiency of affiant's knowledge. — " The mere aver- ment of facts as upon personal knowledge is not sufficient, un- less circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers." Hoormann v. Climax Cycle Co., 9 App. Div. 579 ; 41 Supp. 710 ; James v. Signell, 60 App. Div. 75 ; 69 Supp. 680, and cases cited. In the first judicial department, at least, no imphcation that an affiant had per- sonal knowledge arises from an unqualified allegation of facts. Taintor v. Beseler Co., 33 Misc. 720 ; 68 Supp. 980 ; afi'd 62 App. Div. 617 ; 71 Supp. 1149. Affidavits furnishing facts only by way of hearsay are insufficient. Delaney v. Bouse, 91 App. Div. 437 ; 86 Supp. 880. Information and helief affidavit.^ — An attachment granted 1 Note on affidavits nn information and belief. — From the very nature of the remedy by attachment and the absolute necessity of moving speedily on frequent occasions, it is impossible often to secure an affidavit from ATTACHMENT. 649 Proceedings to Obtain Warrant. on an information and belief affidavit, where good grounds for such belief and good sources of such information are stated, should not be vacated. Lewis v. Tindel-Mor ris Co., 109 App. Div. 509 ; 96 Supp. 5Y6. But such an affidavit must state the the plaintiff personally or from one who has personal knowledge of the facts on which the right to the attachment rests. Prom this necessity the courts have established the doctrine that the remedy may be granted on affidavits which are entirely on information and belief. But while yielding this much to necessity they have established well-defined rules which require those who request the court to grant this somewhat harsh remedy on affidavits based on information and belief to show the utmost good faith and explain to the court the sources of their information and the ground of their belief. Close attention to the principal rules thus es- tablished will prevent the practitioner from falling on the rocks which the adjudicated cases show have wrecked so many. The following rules seem to be thoroughly established, it always being remembered that they apply to affidavits, as such, and not to pleadings which are to be used merely as pleadings. 1. An allegation which on its face is on information and belief merely, without stating the sources of the information or the ground of the be- lief, proves or " shows," nothing and is a mere nullity. Baell v. Van Camp, 119 N. T. 160; Simmons v. Craig, 137 ]Sr. T. 550. 2. An allegation positive in form, but which it is evident from other circumstances disclosed by the papers must have been made on informa- tion and belief only, stands on no better footing than one purely on in- formation and belief. Crowns v. Vail, 51 Hun, 204; 4 Supp. 324; Thomas V. Dickinson, 11 Supp. 436; Simmons v. Hazard, 65 Hun, 612; 20 Supp. 508. 3. A positive allegation by one who from his connection with the trans- action, as disclosed by the record, might have had such positive knowl- edge, will usually be sufficient; but if the papers show good reason to doubt the affiant's having personal knowledge, it is usually necessary and always safer and better practice to show in what manner or by reason of what circumstances he acquired personal knowledge of the facts as to which he makes oath. Price v. Levy, 93 App. Div. 2Y4; 87 Supp. 740; Wallace v. Baring, 21 App. Div. 477; 48 Supp. 692; Hoormann v. Climax Cycle Co., 9 App. Div. 579; 11 Supp. 710; Tucker v. Qoodsell, 14 App. Div. 89; 43 Supp. 460; James v. Signell, 60 App. Div. 75; 69 Supp. 680; Crowns v. Vail, 51 Hun, 204; 4 Supp. 324; Simmons v. Hazard, 65 Hun, 612; 20 Supp. 508. 4. If a conversation with a person who has actual knowledge, or a con- versation containing an admission, is the source of the information and the ground of the belief, the actual words or the substance of the conver- sation should be given. Such expressions as " The source of deponent's information and the ground of his belief as to such facts are conversations 650 bbadbury's Lansing's forms and practice. Proceedings to Obtain Warrant. foundations for the affiant's belief. Lassen v. Burt, 46 Misc. 582 ; 92 Supp. 796 ; Hunt v. RoUnson, 52 App. Div. 539 ; 65 Supp. 386. It is insufficient if made upoa information and be- lief, no evidence being given therein of the facts in order to with A. B.," etc., are usually unavailing, except for tlie verification of a pleading. The allegation should be : " on the day of 19 — , at deponent had a conversation with A. B. Said A. B. then and there stated to deponent that (Giving substance of conversation) and said statements are the sources of deponent's knowledge and the ground of his belief as to the facts hereinbefore set forth." Buellv. Van Camp, 119 N. Y. 160 ; Simmons v. Craig, 137 N. Y. 550. 5. If letters, telegram or other papers or documents are the sources of the infoi'mation the originals or sworn copies thereof should invariably be set forth, as the court must determine from the same sources of informa- tion that the afSant has, whether or not the belief is well founded. If the documents are too long to set forth in full such portions as are relied upon should be used, with an explanation that the portions set forth are parts of longer documents. Such allegations as that " the sources of deponent's knowledge and the ground of his belief are certain statements contained in letters " (or other documents) without stating such contents, have no probative force whatever. Thompson v. Best, 4 Supp. 229; memo, without opinion, 51 Hun, 641. Buell v. Van Camp, 119 N. Y. 160; Simmons v. Craig, 137 N. Y. 550. 6. If the information is based on a telephone conversation the affidavit must show that the affiant knew the voice of the person from whom he thus derived the information and that he recognized the voice as that of the person who had personal knowledge. Murphy v. Jack, 142 N. Y. 215. 7. A good excuse must be given for failure to produce the affidavit of the person who has actual knowledge. Mere inconvenience will not suf- fice. It must appear either that the person who has actual knowledge is too ill to make an affidavit, or is so far away that it would be impossible to secure his affidavit in time, or that he has been requested to make an affidavit and has refused to do so. While an affidavit to support an at- tachment may be secured from a witness who refuses to make one other- wise, under Code Civ. Pro. § 885, it does not follow that resort must be had to this proceeding in such a case as the remedy might be defeated by the delay thus occasioned. A refusal by the person with actual knowl- edge, followed by an affidavit on information and belief, is sufficient for the purposes of attachment at least. Brewster v. Van Camp, 8 Supp. 588; Empire Warehouse Co. v. Mallett, 84 Hun, 561; Levy v. Goldstein, 18 Misc. 639; 43 Supp. 774; Belaney v. Bouse, 91 App.Biv. 437; 86 Supp. 880; Has- kell V. Osborne, 33 App. Div. 127; 53 Supp. 361. 8. It is essential to show, either by necessary implications, or specific allegations, that the person from whom the information is derived has ATTACHMENT. 651 Proceedings to Obtain Warrant. enable the court to determine whether the affiant had sufficient knowledge. Young v. American Bank, No. 2, 44 Misc. 308 ; 80 Supp. 915. Use of reference iooTcs y Corporation directory. — Where the affidavit stated that deponent's information of the fact that the defendant corporation was a foreign corporation was derived from the " Partnership Corporation Directory " and another private publication, as well as from other sources, a sufficient case was held made out. Steele v. Oilmour Mfg. Co., Y7 App. Div. 199 ; 78 Supp. 1078. Where the affiant was a principal in a transaction which constituted the cause of action, and was in communication with the defendant and received instructions for the purchase of stock on account of the defendant, etc., and these facts were stated in the affidavit, it was held fair to infer that the plain- tiff derived his knowledge of defendant's residence by means of these communications or otherwise ; and where the affiant made a positive statement as to the defendant's residence, as of personal knowledge, the source of information was deemed sufficient. Eayden v. Mullins, 76 App. Div. 69 ; 78 Supp. 563. An affidavit averred that deponent was secretary of the plaintiff corporation at the time the affidavit was made ; Held, himself personal knowledge. By implication it is meant that it must ap- pear that such person was an actor in the transaction forming the basis of the attachment. If the plaintifE is a natural person and it appears that the transaction was had with him and he is the informant, this will usually be sufficient. Generally in case of an agent, or of an officer of a corpora- tion plaintiff, there should be allegations clearly showing that the in- formant was himself acquainted personally with the facts. Steele v. Gil- man Mfg. Co., 77 App. Div. 199-; 78 Supp. i078; Anthony & Co. v. Fox, 53 App. Div. 200; 65 Supp. 806. The subject of affidavits generally is fully discussed under the title Affidavits, ante, pages 290 et seq. If the affidavit is sworn to without the State see the same title and requirements as to authentication. This note supplements and in some cases duplicates the statement of the law in the text, but the subject was thought to be of enough impor- tance to restate in concise form, without giving all the authorities cited in the text, the principal rules governing affidavits or information and belief. 652 Bradbury's Lansing's FORivts and peaCt'ice. Proceedings to Obtain Warrant. there being no suspicious circumstances, that his allegation of personal knowledge was not to be disregarded because he did not allege he was such officer when the cause of action arose. Anthony & Co. v. Fox, 53 App. Div. 200 ; 65 Supp. 806. In an action on a promissory note, the plaintiff holding the note, the affidavit was held sufficient where the plaintiff swore he was personally familiar with all the transactions thereafter set forth. Foster v. Rogers, 31 Misc. 14 ; 64 Supp. 652. In an action to recover a balance due for rent, in which the attach- ment was based, in part, on an affidavit by an agent of the plaintiff vfho deposed that he had had entire charge for ten years last past of the collection of all rents for the plaintiff, that he had had a conversation with the president of the de- fendant corporation, and that a sum stated was due, the proofs were held sufficient. Steele v. Oilmour Mfg. Co., 17 App. Div. 199 ; Y8 Supp. 1078. It is sufficient if the plaintiff submits an affidavit that he personally conducted the negotiations for the sale of the stock with the defendant, which sale forms the basis of the action, and states positively that defendant resides in a given town in another state. Cole v. Smith, 84 App. Div. 500 ; 82 Supp. 982. Use of county clerKs certificate. — An affidavit is sufficient if as a ground for deponent's believing that defendant has not made a designation of a person upon whom to serve a sum- mons, a certificate of the County Clerk is annexed that shows informally that no designation has been found by the County Clerk. Ennis v. TJntermyer, 93 App. Div. 375 ; 87 Supp. 695. 3. Foreign corporations — If plaintiff and defendant are foreign corporations, the affidavit must set forth that the con- tract sued on was made, or that the cause of action arose, within the State. Selser Bros. Co. v. Potter Produce Co., 11 Hun, 313 ; 28 Supp. 428 ; People v. St. Nicholas Bk., 44 App. Div. 313 ; 60 Supp. 719. The assignee of a foreign cor^por'ation plaintiff vayxst show that his assignor was'licensed to do business in N"ew York under L. 1892, c. 687, § 15, if the contract in suit was made in New York. ATTACHMENT. 653 Proceedings to Obtain Warrant. Mueller v. William F. Wall Roj>6 Co., 53 Supp. 255. An allegation that the assignor corporation " was duly authorized to transact business within the State of New York," is suffi- cient. Lumley v. Anatron Ghem. Co., 56 App. Div. 174 ; 67 Supp. 663. If there is no evidence that the assignor corpora- tion is doing business in the State such an allegation is not nec- essary. Mallon V. EotTisoUld, 38 Misc. 8 ; Y6 Supp. TIO. 4. The moTing papers must show the existence of a good cause of action. — Code Civ. Pro. § 636 ; OuterhridgeY. Camp- lell, 87 App. Div. 597 ; 84 Supp. 537. That is, they must show that the amount claimed is, presumptively at least, owing to the plaintiff. MoLoughlin v. Naugle, 34 Misc. 385 ; 69 Supp. 871. The mere allegation that a cause of action ex- ists is not sufficient ; it must be disclosed. Mitohell v. Ander- son, 32 Misc. 13 ; QQ Supp. 118. An affidavit that " 1. . . . plaintiff .... is entitled to recover .... $906.87. . . . 2. That plaintiff has frequently demanded said sum of de- fendant, but defendant has not paid same. ... 3. That the defendant is a foreign corporation . ..." is insufficient as not stating the essential things to establish a cause of action on contract. American Audit Co. v. Industrial Federation of America, 80 App. Div. 544 ; 80 Supp. 788. Nor is any cause of action shown if there is merely an allegation on informa- tion and belief in the complaint that a certain firm acted as agents for the defendant company ; consequently, if the lia- bility of the defendant rests entirely upon the existence of such agency, the attachment should not be granted. Sizer v. Hampton i& Bramchville B. B. <& L. Co., 67 App. Div. 547 ; 73 Supp. 1019. Conclusions, without evidence, are not enough. — In an ac- tion for damages for the alleged violation of a contract, the affidavit must, to comply with Code Civ. Fro. § 636, show that the plaintiff is entitled to recover a sum stated; and must show this with evidence, not mere conclusions. Delafield v. Armsby Co., 62 App. Div. 262 ; 71 Supp. 14. - Payment for defendant not enough. — The affidavit is in- 654 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. sufficient if it shows merely that plaintiff paid out money for the defendants' use ; an allegation of request or acknowledg- ment by the defendants is necessary. Skiff v. Stewart, 39 How. Pr. 385. Where defendant committed forgery. — An affidavit of plain- tiff's attorneys, on information and belief, that defendant obtained money from plaintiff by forgery ; and an affidavit that defendant told a magistrate that he desired to plead guilty ; are sufficient as showing a cause of action for procur- ing money on a forged draft. Mexico City Banking Co. v. Molntyre, 105 App. Div. 492 ; 94 Supp. 157. Allegations of damage must not he meager. — An attachment will be vacated if the allegations as to the damage, for which relief is sought in the action, are meager. Austrian Bentwood Furniture Co. v. Wright, 43 Misc. 616; 88 Supp. 142. But the remedy is not confined to claims exact in their amount ; it is sufficient if the approximate sum of damages is given. Both V. American Piano Mfg. Co., 35 Misc. 509 ; 71 Supp. 1080. Where Damages Are Unliquidated. — An attachment will not be sustained upon a claim for unliquidated damages, unless the facts are set forth from which the court can determine whether plaintiffs have evidence of damages that is not mere matter of speculation. Story v. Arthur, 35 Misc. 244 ; 71 Supp. 776 ; Southwell v. Kingsland, 85 App. Div. 384 ; 83 Supp. 356. And deponent must give facts as to the elements of damage, not conclusions. Commercial Wood (& Cement Co. V. JVorthampton Portland Cement Co., 41 Misc. 242 ; 84 Supp. 38. There must be evidence sufficient to authorize the court to ^B.j prima facie that damage to the amount claimed has been sustained by the plaintiff. Chasy Marble Lime Co. v. Deely, 88 App. Div. 150 ; 84 Supp. 396. 5. Amount due over and above counterclaims. — If the ac- tion is to recover damages for breach of contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to ATTACHMENT. 655 Proceedings to Obtain Warrant. him. Code Civ. Pro. § 636, subd. 1. This clause with regard to counterclaims " was undoubtedly intended as a safeguard against the wrongful and oppressive use of this remedy, in cases where the plaintiff, though having a cause of action against the defendant, knows very well that the latter has a counterclaim equal to the demand or some part of it." Donnell v. Williams, 21 Hun, 216, 219. The omission of this clause is fatal. — Donnell v. Willia/nis, 21 Hun, 216 ; Lyon v. Blalcesly, 19 Hun, 299. The affidavit, as to counterclaims, need not follow precisely the wording of the statute ; " that there are no counterclaims, discounts or offsets existing in favor of the defendant, to the knowledge or belief of the deponent," is sufficient on this point. Washbxirn v. Carthage Nat. BTc., 86 Hun, 396 ; 33 Supp. 505 ; aff'd 155 N. Y. 690. So is the following : " de- fendants are justly indebted to him (plaintiff) in the sum of $ over all set-offs or counterclaims that the said de- fendants might have against this plaintiff to his knowledge." Bickerson v. BunTcer, 26 Misc. 383 ; 56 Supp. 202 ; aff'g 25 Misc. 796 ; 54 Supp. 1114. But the following is not sufficient : " That the amount of plaintiff's claim in said action is, to wit : $ , or other larger sum, with interest from the day of , 19 — , over and above all discounts and set-offs." Thorington v. Merrick, 101 JST. Y. 5. The words "known to the plaintiff" are intended in relief of the con- science of the affiant, and their omission strengthens the affida- vit instead of weakening it. Lamkin v. Douglass, 27 Hun, 517. May he oj>inion, not fact. — An allegation in a complaint as to a certain sum of damages above all counterclaims known to the plaintiff may be an averment of fact in form, but an opinion in reality, and yet, although open to criticism, may be deemed sufficient for obtaining an attachment. Haebler v. Bernharth, 115 K Y. 459. The knowledge of the plaintiff that the sum stated is due, over and above all counterclaims known to the plaintiff, is what is required ; the affidavit of the attorney, as to the at- torney's knowledge, is not sufficient. Mitchell v. Anderson, 656 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. 32 Misc. 13 ; 66 Supp. 118. And see Tim v. Smith, 93 N. Y. 87. Where the attorney does swear as to counterclaims, it must appear that he has such knowledge that he can " give legal knowledge of the facts necessary to authorize the court to act." Kokomo Co. v. Inman, 53 Hun, 39 ; 6 Supp. 888. A bare assertion, by plaintiff's attorney, that the plaintiff is entitled to a certain sum, above all counterclaims known to the plaintiff, is insufficient. Weehawken Wharf Co. v. KnicJc- erbooher Goal Co., 2i Misc. 683 ; 53 Supp. 982. But the affi- davit is sufficient on this point if made by the plaintiff's gen- eral agent, who swears that he is conversant with the plaintiff's business, and that the plaintiff is not conversant with it. Wash- iiirn V. Carthage Nat. BTc., 86 Hun, 396 ; 33 Supp. 505 ; aff'd 155 ]Sr. T. 690. Or if made by one who has been the plain- tiff's renting agent for ten years, and who executed the lease sued on. Steele v. Oilmour Mfg Co., 77 App. Div. 199 ; 78 Supp. 1078. 6. Nonresidence as a ground. — Evidence as to the non- residence must be fairly preponderating ; for the right of at- tachment will be construed strictly in favor of the party against whom it is obtained. Rosenzweig v. Wood, 30 Misc. 297 ; 63 Supp. 447; aff'd 52 App. Div. 631; 65 Supp. 1144; citing Penoyar v. Kelsey, 150 N. Y. 77. The affidavit is sufficient if, as the ground of deponent's information and belief that de- fendant is a nonresident, a deposition of a third person, taken in a foreign state and authenticated by a foreign notary, is given, and seems sufficient to the court as the source of informa- tion; the deposition need not even be signed by such third person. Mallon v. Roihsohild, 38 Misc. 8; 76 Supp. 710; RaioTcins v. Pahas, 39 App. Div. 506 ; 57 Supp. 317. Satis- factory knowledge of nonresidence was inferred, where the plaintiff swore to acquaintance with the defendant, and swore that defendant was a nonresident. Foster v. Rogers, 31 Misc. 14 ; 64 Supp. 652. Affidavits as to nonresidence are insufficient which are made by an attorney who clearly had never seen the defendant. BeckermoMn v. Chamlers, 47 Misc 289. ATTACHMENT. 657 Proceedings to Obtain Warrant. Distinction tetween domicile and residence. — ^Even if the defendant has a legal domicile in another State, it seems that he may not be a nonresident of this State, under Gode Civ. Pro. % 636. Rosenzweig v. Wood, 30 Misc. 297 ; 63 Supp. 447 ; aff'd 52 App. Div. 631 ; 65 Supp. 1144. Essential evidence, easily obtainable, should he given. — Where telegrams, which might have supplied sufficient proof as to the nonresidence of the defendant, were referred to in tele- grams submitted on the application for attachment, and the complaint, affidavit and telegrams submitted failed to make out a case for attachment, the attachment was vacated. Bar- rell V. Todd, 65 App. Div. 22 ; 72 Supp. 527. Insufficiency of proof cured.— k. possible insuflBiciency of proof of defendant being a nonresident is cured if, in proceed- ings to vacate the attachment, defendant, in an affidavit, ad- mits he resides in New Jersey. Yogelman v. Lewit, 48 Misc. 625 ; 96 Supp. 207. Insanity. — The fact that defendant had left the State while insane was held insufficient to warrant attachment, for it was " very doubtful whether he was competent to devise any scheme or to have any intent whatever." Chamhers c& McKee Glass Co. V. Roberts, 4 App. Div. 20 ; 38 Supp. 301. 7. Fraudulent transfer as a ground — Appropriating money to pay an honest obligation is no evidence that the de- fendant has removed property with intent to defraud his cred- itors. Ballings v. McDonald, 76 App. Div. 112 ; 78 Supp. 1040. " The mere disposal of even all of a debtor's property is in- sufficient, in the absence of other circumstances, to justify an inference of fraudulent purpose. Ordinarily, it requires but slight additional facts in order to spell out the intent." Ring- ler Co. v. Newman, 33 Misc. 653 ; 68 Supp. 871. That defend- ant made transfers for a nominal consideration in the face of an indebtedness to the plaintiff, it not being stated how much of his property was transferred, is not sufficient. Parrott v. Mayer, 31 Misc. 50; 64 Supp. 649. Vol. I — 42 658 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. It is immaterial where the fraudulent disposition of property took place. Kibbe v. Wetmore, 31 Hun, 424. One partner may swear as to the sum due over counter- claims, and the other as to the defendant's disposal of his property. White v. Eeichert, 14 "Wk. Dig. 285. " "Where different inferences may be drawn from the same state of circumstances," it seems that it is " the duty of the court to presume in favor of innocence, rather than of in- tentional and guilty misconduct." Ouidet v. N'. Y., L. E. & W. JR. R. Co., 9 St. Kep. 26 ; aff'd on opinion below, 120 N. Y. 649. Examples of insufficient affidavits. — An aflBdavit is insufficient if it only alleges admissions by the defendant that he removed property in the nighttime, together with other admissions not inconsistent with an honest intent to pay the claim of the plain- tiff as defendant had promised. Sill Stove Works v. Soott, 62 App. Div. 666 ; 71 Supp. 181. The giving of a chattel mort- gage, on goods, the mortgagor having permission from the mortgagee to sell the goods without accounting for the pro- ceeds, does not bring the case w^ithin the Code rule, although defendant has sold some of the goods. Pfluke Co. v. Pap- ulias, 42 Misc. 15 ; 85 Supp. 541. The following were also held insufficient : That defendant had transferred his farm to his wife, and had gone to settle on a farm in the West. Taylor v. Hull, 56 Hun, 90 ; 9 Supp. 140. That a firm, in violation of a Maryland statute regulating the formation of limited partnerships, had transferred, while it was insolvent, effects to the defendant, in payment of a vaUd debt due him, he being a special partner in the firm. Casola V. Yasquez, 147 IST. Y. 258. That defendants (partners) had made a general assignment, conveying both firm and individual property, without providing that firm and individual property should be first paid there- out ; and that each partner had drawn out a considerable sum in the fortnight preceding the assignment. Friend v. Michae- lis, 15 Abb. N. C. 354. ATTACHMENT. 659 Proceedings to Obtain Warrant. That the defendants had sold property of the plaintiffs and had made use of the proceeds ; for the property transferred must be defendants' property. German Bk. of London v. Dash, 60 How. 124 ; Empire Warehouse Co. v. Mallett, 84 Hun, 561; 32 Supp. 861. Under the Code of Procedure (§ 22Y) the words " his " and " its " property were used. The Code of Civil Procedure (§ 636) omitted these two words. By the omission, however, the Legislature was held not to have changed the rule and, to obtain attachment, under this provi- sion, it is still necessary that the defendant has disposed of his (or its) property with intent to defraud. Oerman JBJc. of Lon- don V. Dash, 60 How. 124. That defendant had executed a general assignment, which contained certain provisions which were claimed to have made it void as against creditors. Milliken v. Dart, 26 Hun, 24. That property had been removed from the defendant's store by a third person claiming to be his assignee, and that no as- signment had been filed in the clerk's office, although a gen- eral charge of a fraudulent assignment by the debtor was sworn to. Denser v. Mundy, 5 Rob. 636. That defendant corporation, being insolvent, was trying to have a receiver appointed ; that it had been shipping away unusual large quantities of manufactured material ; and that its president had been drawing out large sums of money for his personal use. Shuler v. Birdsall Mfg. Co., 17 App. Div. 228 ; 45 Supp. 725. That defendant had made a statement of his financial con- dition, to obtain an extension of time, and later had made an- other statement, showing merchandise of much less value. Stamp V. Herpich, 8 St. Rep. 446. That defendant had violated the provisions of the act to regulate the sale of merchandise in bulk (Z. 1902, o. 528) ; at most, such violation would prove only constructive fraud. Mohhnan Co. v. Landtoehr, 87 App. Div. 83 ; 83 Supp. 1073. That defendant owed a certain sum for rent ; that he had gone to a certain city in another State ; and that he had had 660 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. all his goods sent away, marked with his name and the name- of that city. Bernhard v. Cohen, 56 Supp. 271. J^xanvples of affidcmits held sufficient. — It is suflBcient if plain- tiff deposes that defendant has informed him a great number of times that she would pay no debts, would dispose of her property, would leave the United States ; that she " would sell all of her property and ' skip out ' if she were hard pressed " ; and that " before she, the said defendant, would pay this de- ponent's debt, or any part thereof, she would sell all of her property and leave the State and country ; " and that she had advertised her business in newspapers and had stated in the advertisements that she would soon leave for Europe. Fox v. Mays, 46 App. Div. 1 ; 61 Supp. 295. Affidavits that defend- ant was not to be found on either of two consecutive days at his home or office or through his attorney, and that contra- dictory messages had been given as to whether he was away or was at home sick, and the office boy said he had come into the office for something and had gone away at once ; that per- sons to whom he owed money had searched for him in vain ; that a newspaper had published an account of his absconding, and his attorney had failed to throw any light upon the sub- ject or even to arrange for an appointment, and the sheriff had not succeeded in executing an order of arrest ; Meld, sufficient. Stewart v. Lyman, 62 App. Div. 182 ; 70 Supp. 936. The following were also held sufficient : That the defendant had stopped business for some six weeks before the warrant was obtained ; that all its manufactured material had been taken away ; that it had discharged all its employees ; that it was insolvent ; etc. McTaggart v. Putnam Corset Co., 8 Supp. 800. That the defendant had transferred property in which, al- though he did not own it, he had an interest. German BTc. v. Meyer, 55 Hun, 88 ; 8 Supp. 205. That defendants had covered up all their property by two mortgages, neither of which had been filed or recorded .^ Lu- hens Iron c& Steel Co. v. Payne, 13 App. Div. 11 ; 43 Supp. 376. ' This affidavit is given as Form No. 353, p. 665, post. ATTACHMENT. 661 Proceedings to Obtain Warrant. 8. luteut to remove as a ground. — That a corporation is about to remove its plant from Yonkers to Jersey City is, in itself, insufficient. Davis v. Heflex Camera Co., 97 App. Div. 73 ; 89 Supp. 587. AflBdavits are insufficient if they are merely to the effect that the defendant had said he was about to leave the city, there being no indication therein that the departure would be more than temporary. Franke v. Hamens, 102 App. Div. 67 ; 92 Supp. 377. Or if they are to the effect that de- fendant is under bail, and that he may get bail and leave the State to defraud his creditor, and that he has engaged passage on a steamship. Oode Civ. Pro. § 3169, subd. 3 ; Tocci v. Oianveochio, 48 Misc. 351 ; 95 Supp. 583. The following were also held insufficient as to intent to re- move : That defendant's agent asked plaintiff to compromise the claim sued on, and that on refusal this agent said defendant would make a preferential assignment. Evans v. Warner, 21 Hun, 574. That defendant was trying to sell his property ; but that he refused to pay plaintiff's debt or secure it, or to promise to pay it from the sale, or to apply his property to his diobis, ;pro rata. Thompson v. Dater, 57 Hun, 316 ; 10 Supp. 63. That defendant had made application to many persons and institutions for loans, and that he had tried to raise money upon his property with which to speculate. Galligan v. Gro- ten, 18 Misc. 428 ; 42 Supp. 22. That defendant had been induced to offer a third person the stock in his store for less than to anyone else, and that de- fendant had requested this third person to keep the matter secret. Frank v. Levie, 5 Eob. 599. That defendant closed his store and immediately began packing his goods and continued packing them until mid- night, ready to be removed ; that his store was closed on the morning of the following day, and that on the preceding day he removed his family, without telling plaintiff or his family, who lived over the store. Mott v. LoAJorence, 17 How. 559. That the defendant proposed to sell his stock and lease and 662 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. remove to a certain city in another state, and that he had been requested to pay the debt owing to the plaintiff and had failed to do so. Seitman v. Jaschendroslcy, 3 Law Bull. 9. That the defendant was about to dispose of property and leave the state (the fraudulent intent as to creditors not being shown). Hertz v. Stuart, 3 Wk. Dig. 332. That the defendant threatened that if sued he would make a preferential assignment, in which case those prosecuting him would get nothing, and that he offered to compromise with the plaintiff at fifteen per cent. Farwell v. Furness, 67 How. 188. (In Anthony v. Styjpe, 19 Hun, 265, however, attachment, un- der these facts, with a few others in addition, was upheld.) The following was held sufficient : That defendant threatened to make a preferential assign- ment, leaving out plaintiff, and that he employed these threats to prevent legal action by his creditors while he fraudulently disposed of his goods from day to day. Anthony v. Stype, 19 Hun, 265. But in Farwell v. Furniss, 67 How. 188, the threats of preferential assignment, leaving out plaintiffs, were held not to justify attachment. A threat " by a debtor to a creditor, to make an assignment so as to deprive the latter of all share of his estate if he com- menced an action, appears" to be "as much evidence of a fraudulent intent in fact, as the actual making of an assign- ment, with a like provision in it, is of a fraudulent intent in law." Gasherie v. Apple, 14 Abb. 64. Form No. 350. Affidavit for Attachment Against a Nonresident or a Foreign Cor- poration Defendant in an Action for Breach of a Contract. (Code Civ. Pro. §§635, 636.) [Title.] CoiTNTT OF SS. : First — A. B., being duly sworn, says that he is the plaintiff in the above-entitled action. ATTACHMENT. 663 Proceedings to Obtain Warrant. Second — That said action has been commenced by the serv- ice of a summons therein personally upon the defendant 0. J). {or that said action has been commenced by the issuing of a summons therein to accompany this application). Third — That said action is brought to recover a sum of money only, to-wit : the sum of $ for breach of a con- tract (express or implied) other than a contract to marry, and the plaintiff, A. B., is entitled to recover from the defendant, C. D., the said sum over and above all counterclaims known to the plaintiff. Fourth — The cause of action herein arose out of the fol- lowing facts : {Here state concisely the facts out of which the cause of action arose, as to which see paragraph Jj., ante, page 653. If the damages are unliquidated great care should he exercised in setting forth not only the facts hut also the evi- dence proving such facts. See page 654). Fifth — That the said defendant, C. D., is not a resident of the State of New York, but resides at , in the State of . {Set forth how the affiant hnows of the place of residence of the defendant.) Or, that the defendant is a foreign corporation duly organ- ized and existing under and by virtue of the laws of the State of . Sixth — {If the plaintiff is a nonresident or foreign corpor- ation and the defendant is a foreign corporation, or if the plain- tiff is a foreign coi'poration, there should he a strict compliance with Code Civ. Pro. § 1Y80, or L. 1892, c. 687, § 15, in show- ing jurisdictional facts. See paragraph 3, ante, page 652.) Seventh — That no previous application for a warrant of at- tachment has been made. {If a previous application has heen made state it.) [Sworn to, etc.] A, B. 664 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. Form No. 351. Affidavit for Attachment Against Property of Nonresident De- fendant, in Action Other than for Breach of Contract. (Code Civ. Pro. § 636.) {Insert the following in place of paragraph Third in Form No. 350.) That said action is to recover a sum of money only, to wit : the sum of. dollars, as damages, for the wrongful con- version of personal property (or as damages for an injury to person or property in consequence of the negligence, fraud, or wrongful act) of the said defendant. ( Where any of the ma- terial facts are stated upon information and ielief add affi- davit of informant or account for its absence.^) Form No. 353. Affidavit for Attachment against Property of Absconding, etc. Defendant. (Code Civ. Pro. § 636, subd. 2.) ( Add the following in place of pa/ragraph Fifth in form No. 350.) That the defendant, C. D., is a resident of the State of New York {or is a domestic corporation incorporated under the laws of the State), and that he has departed there- from {or keeps himself concealed therein), with intent, to de- fraud his creditors {or to avoid the service of a summons), or that he (it) has removed {or is about to remove) property from the State, with intent to defraud his (its) creditors ; or that he (it) has assigned {or disposed of, or secreted), or is about to as- 1 See paragraph 2, ante, p. 648, especially note on affidavit on Infor- mation and Belief. ATTACHMENT. 665 Proceedings to Obtain Warrant. sign (dispose of, or secrete) property, with the intent, etc.) {Here set forth the facts showing a fraudulent disposiPion of property, etc. See paragraph 7, ante, p. 657.) [Jurat as in form No. 46.] Form No. 353. Affidavit of Fraudulent Disposition of Property.i (Code Civ. Pro. § 636.) Add the following in place of paragraph Fifth in form JYo. 3S0.) — I have to-day called upon said defendants at their manufacturing establishment, in the City of E. and had a long talk with both of said defendants. Both of said defendants have admitted the correctness of plaintiff's claim and causes of action set forth in said complaint. They both told me that they have covered up all their property by mortgages ; that they have given a mortgage upon all their personal prop- erty of every description to the C. C. Bank and another upon all their real property to said Bank. Neither of said mortgages has been filed or recorded in the office of the Clerk of the said County of C. Said defendants informed me that said mortgages were given two or three weeks or longer ago. When I called upon said defendants to-day, they were both actively engaged in the charge of said manu- facturing establishment. They Avere giving instructions to employees, and were in the exclusive control and charge of said establishment and performing the usual daties incidental to the control and charge of such an establishment. They both told me that it would do the plaintiff no good to sue its claims set forth in the complaint herein, for the reason that if 1 The foregoing form was held sufficient in Lukens Iron Co. v. Payne,' 13 App. Div. 11; 43Supp. 376. 666 Bradbury's Lansing's forms and practice. Proceedings to Obtain Warrant. they were sued, they would shut down and the Bank would take possession of all the property they owned and prevent plaintiff from reaching any part of it on execution. Both of said defendants told me that they owed large sums of money which they were unable to pay and that they had quite a number of merchandise creditors. They told me that the plaintiff and the S. T. Co. were the largest of the merchandise creditors. They informed me that nobody was secured by said mortgage but said Bank. Both said defendants also in- formed me that they were negotiating a sale of their said manufacturing establishment and the personal property form- ing its equipment and their stock to some parties in E. whose name they declined to disclose to me. They said they hoped to effect that sale before the day of , 19 — . They told me that if that sale was made, the claim of the plain- tiff, set forth in the complaint herein, would be paid in full. Both of said defendants declined to give me a statement of their present financial condition and they declined to give me the names of their creditors, except as I have stated herein. They also decline to give me the amount or terms of payment of either of said mortgages to said Bank. Form No. 354. Affidavit for Attachment in Action against Public Officer, etc., for Peculation. (Code Civ. Pro. § 637.) (^Insert formal requisites as indicated in form JVo. 350.') That the complaint in said action demands judgment for a sum of money only, to wit : for the sum of dollars, and said action is brought to recover money (funds, credits or other property) owned (held) by the State, {or, held or owned officially [or otherwise'] for or in behalf of a public govern- ATTACHMENT. 667 The Warrant. mental interest by a municipal corporation) {or otherwise as specified in § 637) which the defendant has, without right, ob- tained and received, as will fuUy appear by the verified com- plaint in this action, which is hereto annexed and referred to as a part of this affidavit {or by the following statement of the facts constituting the plaintiff's cause of action. : ) {Here state such facts). That a sufficient cause of action exists against the defend- ant for a sum above mentioned, and sought to be recovered in this action, as will appear from said complaint {or from the fore- going statement of the facts constituting the cause of action.) III. THE WAEKANT. FORMS. NO. PAGE. 359. Warrant of attachment 670. 360. Eecitals in warrant of various causes of action 671. 361. Recitals in warrant of various grounds of attachment 672. 1. Writ of attachment not an original process. — " The attachment under our Code is not an original process by which an action is commenced ; it is a mere proceeding in an action." Stone V. Pratt, 90 Hun, 39 ; 35 Supp. 519. 2. " There is no jurisdiction until the warrant is granted, and it is not granted until it has been delivered by the judge with the intention that it shall become operative." Niagara Orape Market Co. t. Wygant, 1 App. Div. 588 ; 37 Supp. 486. So, where one warrant was issued in the evening, and another warrant was signed early in the morning, but its original was by mistake retained by the judge, and both papers were handed to the sheriff at the same hour, and he marked the one which had been signed in the evening " No. 2," and the other " JSTo. 1," it was held that " No. 2 " had priority, be- cause " No. 1 " had no complete existence, a copy, and not the original, having been handed to the sheriff. Id. 668 Bradbury's Lansing's forms and practice. The Warrant. 3. A warrant of attachment is void if not subscribed by the judge and the plaintiff's attorney. — Code Civ. Pro. § 641 ; Lassen v. Burt, 46 Misc. 582 ; 92 Supp. 796. 4. Must recite ground. — A mistake in the warrant as to the nature of the cause of action is not fatal to the attach- ment, although the warrant must briefly recite the ground of the attachment. Fox v. Mays, 46 App. Div. 1 ; 61 Supp. 295. But that the warrant does not sufficiently recite the grounds of the attachment is not an objection available to an appel- lant who did not specify it in his notice of motion ; it is a mere irregularity. Minis v. Untermyer, 93 App. Div. 375 ; 87 Supp. 695. A recital in the warrant that the action is for " wrongful detention " rather than wrongful conversion is an irregularity, and Rule 37 must be complied with. Railings v. McDonald, 76 App. Div. 112 ; 78 Supp. 1040. A warrant setting forth " that defendant is a natural person, and that he has departed from the place where he last resided, with intent to defraud his creditors and to avoid service of a summons ; that he keeps himself concealed with like intent ; that be has removed his property from the county of Kings, where he last resided, with intent to defraud his creditors, and has se- creted his property with like intent," is not defective. Dela- ney v. Bouse, 91 App. Div. 437 ; 86 Supp. 880. 5. Defects not fatal. — That the levy is stated to be on promissory notes, whereas it should be on the intangible in- terest remaining in the defendants, does not vitiate it. Ha/r- don V. Dixon, 91 App. Div. 109 ; 86 Supp. 346. The word " conceal " in the warrant is equivalent to " secrete." Jur- gens v. Turn Suden, 32 App. Div. 1 ; 52 Supp. 662. An at- tachment is not issued in the name of a fictitious person if it reads " John Doe," and if it is directed against the person seeking to vacate it, it will not be vacated. Silvermati v. Da- vis, 45 Misc. 417 ; 90 Supp. 405. 6. Use of the conjunctive — If the writ states " that the defendant A. B. is a resident of this State, and has departed ATTACHMENT. 669 The Warrant. therefrom with intent to defraud his creditors or keeps himself concealed therein with like intent," this is not defective because of the disjunctive form. Stewart v. Lyman, 62 App. Div. 182 ; 70 Supp. 936. If it states that he " is concealing his property to defrauy judge). Form No. 370. Inventory and Appraisal of Property Attached.* (Code Civ. Pro. §654.) [Title.] The following is a just and true inventory of the property, books, vouchers and other papers of the defendant, C. D., levied upon and taken into the custody of M. JST., sheriff of the county of , under a warrant of attachment issued in the above action by the Hon. A. O., justice {or judge) of the Court {or county judge of county), made pursuant to law by said sheriff, with the assistance of I. J. and K. L., two disinterested freeholders, to wit : {Insert itemized description of property, hoohs, etc., and a/mount of valuation of each item of the property, real and per- sonal^ The following property, mentioned in said inventory, is perishable, to wit : {enumerate perishable property). Dated 19—. M. N., Sheriff of County. T^ j' i Appraisers. 1 The inventory is to be filed within five days after the levy, in the ofiBce of the clerk of the county where the property is attached. Code Civ. Pro, §654. 692 beadbuey's Lansing's forms and practice. The Levy. Action in Aid of Attachment. FormNo. 3T1. Order Requiring Sheriff to Return an Inventory of Property Attached by him. (Code Civ. Pro. §681.) At, etc., when made hy cov/rt. [Title.] Upon the application of I. J., counsel for A. B., plaintiff {or for C. D., defendant), in the above-entitled action, and due proof having been made of the neglect of M. N., sheriff of county, to return an inventory of the property of said defendant, attached by him under warrant of attachment issued to him in said action : It is hereby ordered {or I do hereby order) that said sheriff be and he is hereby required to return such inventory, within [ten] days after the service upon him of a certified copy of this order. Date \of judges order]. A. O., Judge (or Justice) of the Court. {where made hy judge). Form No. 373. Order for Sale of Perishable Property and of Live Animals Attached by Sheriff. (Code Civ. Pro. §656.) At, etc., when made hy court. [Title.] It having appeared by the inventory, dated , 19 — , made and filed by M. N., the sheriff of county, in ATTACHMENT. 693 The Levy. Action in Aid of Attachment. the above-entitled action, of property of the defendant, C. D., levied upon by said sheriff and in his custody under a warrant of attachment issued in the above action, that the following property therein mentioned is perishable {or consists of live animals) (and it appearing that due notice of this applica- tion has been given to the parties to this action, or their attor- neys ' ) : It is hereby ordered and directed (or I do hereby order and direct), on motion of E. F., attorney for plaintiff, after hearing, etc., and on reading and filing {specifying opposing papers), {or no one appearing to oppose), that the said perishable property " {or live animals), to wit: {describing same) be sold by said sheriff at public auction. And it is further ordered and directed {or I do hereby further order and direct) that such sale take place on the day of , 19 — , at the (town) of , in the county of , and that notice thereof be given by posting a written or printed notice of the same for at least • days before such sale in three public places in said town. Dated , 19 — , {when made hy judge']. "• A. O., Judge {or Justice) of Court. {or County Judge of : County) (when made hy judge). 1 Notice to the parties of the application is necessary where tlie prop' erty consists, in whole or in part, of live animals, the notice being such as the court or judge prescribes. Code Civ. Pro. § 656. The order otherwise may be made with or without notice, as tlie ur- gency of the case, in the opinion of the court or judge, requires. Id. 2 As to what property is deemed perishable, see Fisk v. Spring, 25 Hun, 367. It should be inherently liable to deterifiration and decay; not merely subject to depreciation in value by reason of changes of style and fashion. Id. See also Schumann v. Davis (13 Supp. 575.) 694 Bradbury's Lansing's forms and practice. The Levy. Action in Aid of Attachment. Form No. 373. Affidavit to Obtain Appraisal of Domestic or Foreign Vessel, held Under Attachment. (Code Civ. Pro. §§660, 666.) [Title]. ■ County, ss. : A. B., of : , being duly sworn, says that he is the owner \ot that he is the agent of E. F., Avho resides at , in the , of (whom he believes to be)' the owner of the {name of vessel)] [or of the interest in the (naming vessel)], of , a [foreign] vessel, seized in the above-entitled action by M. IST., the sheriff of county, under a warrant of attachment issued therein and delivered to said sheriff, against the property of the defendant, C. D. That he desires to obtain an appraisal of said vessel {or of said interest in said vessel), according to law. Sworn to, etc. A. B. Form Tfo. 374. Order Appointing Appraisers to make Valuation of Domestic or Foreign Vessel. (Code Civ. Pro. §§660,666.) At, etc., where made hy court. [Title]. It having appeared by the affidavit of A. B. that the {name of vessel), a vessel belonging to the port of New York \or that the (one-fifth) share or interest, supposed to belong to the de- fendant, C. D., in the {name of vessel), a vessel belonging to the port of New Tork], has been attached by M. N., sheriff 1 Omit the vfords " whom he believes to be," in case of domestic vessel. ATTACHMENT. 695 The Levy. Action in Aid of Attachment. of county, under a wari'ant of attachment, issued and delivered to him ia the above action, as the property of said defendant, and that I. J", claims title to said vessel {or to the interest in said vessel), so attached, on motion of G. H., attor- ney for said I. J. : It is hereby ordered {or I do hereby order), (due notice of this application having been given to the plaintiff i), after hear- ing, etc., that O. H., of , E. P., of , and S. R., of , three indifferent persons, be and they are hereby appointed appraisers, to make a valuation of the said {or of said share or interest in said) {name of vessel), pursuant to law. Dated , 19 — {when made iy judge). A. O., Judge ( or Justice) of Court {or County Judge of County) {when, made iy judge). Form No. 375. Valuation of Domestic or Foreign Vessel, or Interest Therein, At- tached by Sheriff. (Code Civ. Pro. §§ 661, 666.) [Title.] We, O. H., of , R. P., of , and S. E., of , disinterested persons appointed by the order of the ■ Court {or of Hon. A. O., judge of the court), dated , 19 — , to make a valuation of the {name of vessel), a vessel belonging to the port of New York [or of the (one-fifth) share or interest in the {name of vessel), belonging to the port of New York], attached as the property of the defendant, 0. D., by M. N., sherifif of county, under warrant of attachment issued and delivered to him in the above action, do hereby certify and report : 1 Notice of the application is required in cases of foreign vessels, but not in that of domestic, the notice required being such as the court or judge deems reasonable. Code Civ. Pro. § 667. 696 Bradbury's Lansing's forms and practice. The Levy. Action in Aid of Attachment. That we ha\^e made such valuation as directed by said order, and that the value of said vessel (or of said share or interest in said vessel) is the sum of dollars. Dated , 19—. O. H.,| E. P., > Appraisers. S. R, ) County, ss. : O. H., E. P. and S. E., being severally duly sworn, each for himself, says : That he is one of the appraisers mentioned in the foregoing certificate of appraisal, and whose name is thereunto subscribed, and that the valuation of the said {name of vessel), therein mentioned [or of the one-fifth share or in- terest in the said (name of vessel), therein mentioned], is, in all respects, just and fair, and that the value of said vessel {or of said share or interest in said vessel), is truly stated therein, ac- cording to deponent's belief. Sworn to, etc. O. H. E. P. S. E. Form No. 3 1 6. Order Discharging Vessel from Attacliment. (Code Civ. Pro. §663.) At, etc., when made hy court. [Title.] A warrant of attachment having been granted by against the property of the defendant, C. D., in the above ac- tion, and the {name of vessel) [or the (one-fifth) share or in- terest in the {name of vessel) ], having been seized under said warrant by M. N., sheriff of county, and F. P., hav- ATTACHMENT. 697 The Levy. Action in Aid of Attachment. ing claimed title thereto, and having given an undertaking pursuant to law : It is hereby ordered (or I do hereby order) that the said vessel {or share of said vessel) be discharged from said attach- ment. Dated , 19 — [when made hy judge\. A. O., Judge {or Justice) of the Court {when made hy judge). Form No. 377. Order Discharging Foreign Vessel from Attachment, on Failure of Plaintiff to give Undertaking. (Code Civ. Pro. § 669.) At, etc., when made hy court. [Title.] M. N"., sheriff of county, having levied upon the {name of vessel) [or upon the {state interest) in the {name of vessel) J, a vessel belonging to the port of L , in the of , under a wrarrant of attachment, issued and delivered to said sheriff in the above-entitled action against the property of the defendant, 0. D. ; and F. P., of , having claimed title to said [interest in said] vessel, and ap- praisers having been thereupon duly appointed, who have valued said [interest in said] vessel at the sura of dollars, and have duly returned said valuation to the Court {or to Hon A. O., judge of the Court) on the . day of , 19 — ; and the said plaintiff having failed to give an undertaking, as required by law, within three days after said valuation has been returned : Now, it is hereby ordered {or I do hereby order), that the 698 Bradbury's Lansing's forms and practice. The Levy. Action in Aid of Attachment. said vessel (y judge). 702 beadbuey's Lansing's foems and peactice. The Levy. Action in Aid of Attachment. Form No. 383. Order Directing Sheriff to pay into Court the Proceeds of Property Sold, or Demands Collected under Attachment.^ (Code Civ. Pro. § 675.) At, eto., mform of court order. [Title.] It is hereby ordered, upon application of E. F., counsel for the plaintiff {or defendant) {here insert recitals as to appear- ances, etc., as in form of order) that the proceeds of property sold {or demands collected) by M. JST., the sheriff of ; — county, under attachment issued in the above action against the property of the defendant, be paid by said, sheriff into court [or into the {jiamte of hank or trust compamy) to be drawn out only upon the order of the court]. Form Xo. 383. Order Directing Sheriff to pay over Surplus, on Application of Defendant or Ms Assignee. (Code Civ. Pro. §676.) At, etc., when made lyy cowrt. [Title.] It having appeared by {name papers read) that the proceeds of property sold {or of demands collected) by M. N., sheriff of county, under a warrant of attachment issued in the above-entitled action against the property of the defend- ant, C. D., iexceed the amount of the plaintiff's demands, with the costs and expenses [and of all other warrants of attach- ment {or executions)], in the hands of said sheriff, chargeable upon the same : ' This order must be made by the court. Code Civ. Pro. § 675. ATTACHMENT. 703 The Levy. Action in Aid of Attachment. Now, on motion of E. F., counsel for said defendant [or for I. J., the assignee of (or purchaser from) said defendant], due notice of this motion having been given to the plaintiff [and to the plaintiffs in the other said warrants {or executions)], and on reading {name opposing papers), and after hearing F. G., counsel for the plaintiff {or name other counsel appear- ing): It is hereby ordered, that said sheriff pay over the amount of said surplus, to wit : the sum of dollars, to the said E. F., and that he release from the said attachment the remaining real and personal property attached by him in this action. Date {of Judge's order) A. O., Judge {or Justice) of the Court {when made by Judge). Form No. 384. Order granting leave to Plaintiff to bring Action in the Name of Himself and the Sheriff, to recover Property Attached or the Value Thereof, i (Code Civ. Pro. §§ 677, 678.) At, etc., when made hy court. [Title.] Upon the application of I. J., counsel for the plaintiff, due notice of such application having been given to M. IST., sheriff of county, to whom a warrant of attachment was issued in the above action against the property of the defend- ant 0. D., and to E. F., the plaintiff, in an action against said C. h. ; and on reading {nMme papers read) and after hearing {here name counsel appearing) {or no one appearing to op- pose) (*) : It is hereby ordered {or I do hereby order), that said plain- 1 See paragraph 12, ante, page 681. 704 Bradbury's Lansing's forms and practice. The Levy. Action in Aid of Attachment. tiflf have leave to bring an action in the name of himself and of said sheriGf, to recover the following property or demand, levied upon under said warrant, to wit : {describing it), or the value thereof, from J. K., having the possession of said prop- erty {or against whom such demand exists). {Here state the terms, conditions and regulations upon which, such order is granted.) Dated , 19 — . {where made iy Judge). A. O., Judge {or Justice) of the Court {where made by judge). Form No. 385. Order Granting leave to Plaintiff in Attachment Suit, to join in Action brought by Sheriff. (Code Civ. Pro. § 679.) At, etc., when made by court. [Title.] Upon the application of I. J., counsel for A. B., the plaintiff, in an action against C. D., in which a warrant of attachment has been issued against the property of said defendant to M. N., sheriff of county, due notice of this application hav- ing been given to said sheriff and to {name other parties, if any, to whom notice has been given), and on reading {narne papers read) and after hearing {here name counsel appearing) {or no one appearing to oppose) : It is hereby ordered {or I do hereby order), that leave is hereby granted, to said A. B., to be joined with the said sheriff in the above-entitled action. {Here insert directions, requi/ring plaintiff to provide for the expenses of the action, in case he is required to do so.) Date {of judges order). A. O., Judge {or Justice) of the Court inhere made by judgi). ATTACHMENT. 705 The Levy. Action in Aid of Attachment. Form No. 386. Order Permitting Junior Attachment Creditor to give Undertaking to Prevent Release of Foreign Vessel. (Code Civ. Pro. § 701.) At, etc., where made Iry the court. [Title.] It having appeared by the affidavit of E. F. [plaintiff in the above-entitled action], dated , 19 — , that the {name of vessel), a foreign vessel belonging to the port of L , in the of ■ [or that the (one-fifth) share of the defendant, 0. D., in the {name of vessel) belonging, etc.], has been attached by M. E"., sheriff of the county of , under an attachment issued to him in an action in the Court, in which O. P. is plaintiff, and said 0. D. is (a) defend- ant, and valued as prescribed in article second of title three of the Code of Civil Procedure, and that said O. P. has failed to give an undertaking to prevent the release thereof from said attachment, and a second warrant having been issued to said sheriff in the above-entitled action, and the (said) plaintiff therein having applied for leave to file an undertaking as here- inafter mentioned ; Now, therefore, it is hereby ordered {or I do hereby order), that the plaintiff (E. F.) in the above-entitled action have leave, within three days from the date of this order, to furnish the undertaking as required by section 701 of the Code of Civil Procedure, and if the said E. F. furnishes said undertaking within that time he shall have the same rights and privileges and be subject to the same duties and liabilities, with respect to said vessel and its proceeds and the subsequent proceedings relating thereto, as if his was the first warrant. Date {of judged order). A. O., Judge {or Justice) of Court {where order is made iy Judge). YoL. 1—45 706 Bradbury's Lansing's forms and practice. The Levy. Action in Aid of Attachment. Form No. 387. Order Granting Leave to Junior Attaching Creditor, to Commence Action Jointly with Sheriflf.* (Code Civ. Pro. § 704.) At, etc., where made hy the cov/rt. [Title.] It appearing by the affidavit of E. F. (the above-named plaintiff), that a warrant of attachment was issued to M. N., sheriff of the county of , on the day of , 19 — , in an action in which A. B. is plaintiff and the above-named defendant, 0. D., is defendant, and that said at- tachment was levied upon the property of said defendant on or about the day of , 19 — , and an inventory of said property has been duly returned and filed by said sher- iff ; and that another attachment was issued on the day of , 19 — , in the above-entitled action, and levied upon the property of said defendant subsequently to the above-mentioned levy : And it further appearing that said A. B. has neglected {or refused) to be joined with said sheriff in an action to be brought for the purpose of {state purpose of the action) [or that said A. B. has neglected {or refused) to comply with the terms, conditions and regulations imposed by an order of this court {or of Hon. A. O., judge of this court), granting him leave to be joined with said sheriff in an action to be brought for the purpose of {state purpose of the action)'] [or said A. B. having neglected {or refused) to comply with the terms, con- ditions and regulations imposed upon him on the hearino- of this application, with reference to the granting him leave to be joined with the said sheriff in an action to be brought for the purpose of {state purpose of the action) ] ; and it appearing that due notice of this motion has been served upon the at- torneys for said A. B., and upon said sheriff ; and after hear- ' See paragraph 12, ante, page 681. ATTACHMENT. 707 The Levy. Action in Aid of Attachment. ing O. P., of counsel for said plaintiff in the above-entitled action, and I. J., counsel for {namhing other counsel appearing) (or no one appearing to oppose), and on filing {name opposing papers) : It is hereby ordered, that said E. F., the plaintiff in the above-entitled action, have leave to bring and maintain an action for the purpose of {stating purpose), in the name of himself and said sheriff jointly, with like effect as if his was the first warrant. Date {of judged order). A. O., Judge {or Justice) of the Court i^where made hy judge). Form No. 388. Petition for Sale by Sheriff of Debts and Things in Action under Attachment- (Code Civ. Pro. § 708, subd. 5.) [Title.] To the Court : The petition of A. B. respectfully shows, upon information and belief, that he is the plaintiff in the above-entitled action ; that a warrant of attachment against the property of the de- fendant, C. D., was issued and delivered to the sheriff of the county of , on or about the day of , 19 — ; that said sheriff, under said warrant, levied upon the following property of the said defendant, to wit : {Here insert description of property attached.) That said sheriff has disposed of said property levied upon as follows : {Here state disposition of property h/ sheriff.) And your petitioner further shows, upon information and belief, that the following debts and things in action levied upon under said warrant remain uncollected by said sheriff. 708 beadbtjry's Lansing's forms and practice. The Levy. Action in Aid of Attachment. although said sheriff has used due diligence in endeavoring to collect the same, as will more fully appear by the affidavit of (said sheriff) hereto annexed, to wit : {Here enumerate the debts and things in action remaining undisposed of.) And your petitioner prays that an order may be made by this court directing the sale of said debts and things in action remaining undisposed of, and for such other and further I'e- lief as may be proper. Dated , 19—. A. B. ( YerificatAon as inform No. 316,page53J^.) ForiM ISo. 389. Affidavit of Sheriff Accompanying Petition for Sale of Debts, etc., Attached, (Code Civ. Pro. §708, subd. 5.) [Title.] County, ss. : M. N., of , being duly sworn, says, that he is the sheriff of the county of ; that a warrant of attach- ment was issued to him in the above-entitled action against the property of the defendant on or about the day of , 19 — ; that he made a levy under said warrant upon property of said defendant, including the following debts and things in action of said defendant, to wit : {Here insert description of debts and things in action remain- ing uncollected^ That he has used due diligence in endeavoring to collect the said debts and things in action. That {here state the efforts made to collect said debts, etc., and where statements are made upon information a/nd belief state ATTACHMENT. 709 The Levy. Action in Aid of Attachment. sources of information and annex affidavit of informant, or account for not doing so). M. K Sworn to, etc. Form No. 390. Notice of Application by Sheriff for Sale of Attached Debts and things in Action.' (Code Civ. Pro. § 708, subd. 5.) As inform for notice of motion. See form No. 186, pp. 31)3 et seq.,for recitals, and from thence as follows: For an order directing the sale by M. N., sheriff of county, of the portion of the debts and things in action of the defendant, attached by said sheriff under a warrant of attachment issued to him in the above-entitled action, remaining uncollected by him, upon such terms, and in such manner, as to said court may seem proper (with costs of this motion), and for such other and further relief in the premises as to the court may seem proper. That said motion will be made upon {the petition and affi- davits), with copies of which you are herewith served.^ Dated , 19—. I. J., Attorney for Plaintiff. {Office address.) To K. L., Attorney for Defendant. 1 The affidavits and papers required are the petition of the plaintiff, ac- companied with an affidavit, specifying fully all the proceedings of the sheriff since the levy under the warrant, the property attached and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence in endeavoring to collect the debts and things in action at- tached, and that a portion thereof remains uncollected. Code Civ. Pro. § 708, subd. 5. 710 The Levy. Action in Aid of Attachment. Form No. 391. Order Directing Sheriff to sell Debts and Things in Action Attached. (Code Civ. Pro. § 708, subd. 5.) At, etc., as in form for court order. [Title.] On reading and filing the verified petition of A. B., the plaintiff in the above-entitled action, dated , 19 — -, ac- companied with an afiidavit, specifying fuUy aU the proceed- ings of M. !N"., sheriff of county, by whom a levy was made under a warrant of attachment upon the property of the defendant in the said action since the levy under said warrant, the property attached, and the disposition thereof ; and the afiidavit of said sheriff, showing that he has used due diligence in endeavoring to collect the debts and. other things in action attached, and that a portion thereof remains uncollected (and due notice of this application having been given to the defend- ant's attorney).^ It is hereby ordered, on motion of I. J., attorney for plaintiff [after hearing K. L., for the defendant {or no one appearing to oppose) ], and on filing (state opposing papers) that the said sheriff sell the said portion of said debts and things in action remaining uncollected, upon the following terms and in the following manner, to wit, {here insert directions as to terms and manner of sale). I Notice of the application must be given to the defendant's attorney, if the defendant appeared in the action. If the summons was not personally served on the defendant, and he did not appeal-, the court may make such order as to the service of notice as it thinks proper. Code Civ. Pro. § 708, subd. 5. ATTACHMENT. 711 The Levy. Action in Aid of Attachment. Form No. 393. Affidavit of Defendant on Application to be Substituted for Sheriff in Suit on Attached Demand- (Code Civ. Pro. §710.) [Title.] COUNTT, ss. : C. D., of , being duly sworn, says, that he is the defendant in an action brought by A. B. against him, in which said action a warrant of attachment against the property of deponent was issued and delivered to M. N., sheriff of county, on or about the day of , 19 — . That a levy was made by said sheriff, under said warrant, upon certain property of deponent, including a demand of de- ponent against E. F. {describe demand). That an action was afterwards brought in the Court by said sheriBf (jointly with said A. B.) against the said E. F., to recover the amount of the said demand, which action is still pending and undetermined, and the place of trial therein is the county of {here state the condition of the ac- tion). That by an order of the Court {or of Hon. A. O., judge of the Court), the said warrant of attachment has been vacated {or annulled ; or said attachment has been discharged). And deponent prays, therefore, that he may be substituted as plaintiff in said action, in place and stead of said M. N. (and A. B.) CD. Sworn to, etc. 712 beadbtjry's Lansing's forms and practice. The Levy. Action in Aid of Attachment Form No. 393. Order Substituting Defendant in Suit by Sheriff, or by Sheriff and Plaintiff Jointly, for Property Attached. (Code Civ. Pro. § 710.) At, etc., where made iy the court. [Title.] It appearing by the affidavit of C. D., dated , 19 — , that the above-entitled action has been brought by M. N., sheriff of the county of (and A. B., jointly), to re- cover the amount of a demand owing to C. D. by E. F., seized with other property under a warrant of attachment is- sued to the said sheriff in an action in which (said) A. B. was plaintiff and said C. D. was (a) defendant, and the said warrant of attachment having been vacated [or annulled {or said at- tachment having been discharged) ] by order of the couit, dated , 19 — ; Now, on motion of T. E., of counsel for said C. D., it is hereby ordered, that said C. D. be and he is hereby substituted in place and stead of said M. N. (and A. B.) as plaintiff in the above-entitled action [upon the following terms {add any terms im^posed hy the court, as a condition of granting the order) ]. Date {^hen made "by judge). A. O., Judge {or Justice) of the Court {where made hy judge). ATTACHMENT. 713 The Levy. Action in Aid of Attachment. Form No. 394. Affidavit to Procure Order Canceling Notice Attaching Real Property in Attachment Suit. (Code Civ. Pro. §711.) [Title.] CotTNTT, SS. : ■^5 C. D., of , being duly sworn, says, that he is the defendant in the above-entitled action ; that a warrant of at- tachment against the property of deponent was issued therein on or about the day of , 19 — , and delivered to M. ]Sr., sheriff of county : That a notice of said attachment was filed in the county clerk's office of county on the — day of , 19 — , at o'clock in the noon, of which notice a copy is hereto annexed, which said notice was recorded on the day aforesaid and indexed by said clerk in the book kept in his said office for the purpose of recording notices of the pendency of actions and indexed by said clerk to the name of the defendant, according to the direction of the at- torney for the plaintiff, appended at the foot of saM notice and subscribed by said plaintiff's attorney,^ and affects the real property therein described : And deponent further shows, that the said warrant of at- tachment was, by an order of the Court {or of Hon. A. O., judge of the Court), dated , 19 — , vacated and annulled \or that said attachment has been dis- charged as to real property attached, by an order, etc. (as above) ]. And deponent prays that the said notice may be canceled of record by the clerk of county. CD. Sworn to, etc. 1 The regularity of the notice must appear, so as to show that it affects real property. Jaffray v. Brown, 17 Hun, 575. The rule in regard to the cancellation of this notice diflers from the case of a lis pendens. See Code Civ. Pro. § 1674; Mills v. Bliss, 55 N. T. 139; Beman v. Todd, 124 N. Y. 124. 744 bradbuky's Lansing's poems and pkactice. The Levy. Action in Aid of Attachment. Form Ifo. 395, Order Canceling Notice Attaching Beal Property. (Code Civ. Pro. §711.) At, etc., as vnform of court order. [Title.] On reading and filing the affidavit of 0. D., dated — 19 — , by which it appears that a warrant of attachment against the property of said C. D., defendant in said action, which was issued and delivered to M. N., sheriff of county, on or about the day of 19 — , has been vacated and annulled [or has been discharged as to the real property attached, by order of the Court (or of Hon. A. O., judge of the Court) ], and that a notice has been filed, for the purpose of attaching certain real property of said defendant, in the clerk's office of the county of , on the day of , 19 — , at o'clock in the noon: And it appearing that due notice of this motion has been given to the plaintiff's ^ attorney in said action : ITow, on motion of G. H., counsel for said defendant, after hearing J. K., attorney for the plaintiff, and on filing (name opposing papers) (or no one appearing to oppose) : It is hereby ordered, that the said notice be canceled of record, by the clerk of county, in the manner required by law. 1 As the court may require notice to be given, it is probably better, ordi- narily, to give notice in advance of the application. See § 711, Code Civ. Pro. ATTACHMENT. 715 Vacating an Attachment. V. VACATING- AN ATTACHMENT. FORMS. NO. PAGE. 401. Notice of motion to vacate or modify attachment or to in- crease security 725. 402. Notice of motion to vacate attachment on papers on vehich it was granted 726. 403. Recital of special appearance in notice of motion to vacate at- tachment 726. 404. Affidavit to procure order to show cause why attachment should not be vacated 727. 405. Order to show cause why attachment should not be vacated or modified or security increased 728. 406. Affidavit on behalf of person holding junior lien to vacate prior attachment 729. 407. Affidavit of party or attorney supplementary to form No. 405. . 731. 408. Affidavit by an assignee of the attachment debtor 732. 409. Order vacating or modifying attachment or requiring increased security 733. 1. In General. — ^Vacating an attachment means annulling it or rendering it void. The relief given by Yacating is dis- tinct from that afforded by Discharge of Attachment, as to which see page 735, post. Jf an action is discontinued before the defendant appears, such a discontinuance will in effect vacate the attachment, and the defendant whose property is subject to a levy under the attachment is entitled to have a formal order entered, vacat- ing it. Am. Audit Co. v. Industrial Federation, 87 App. Div. 275 ; 84 Supp. 369 ; Corn Ex. Bh. v. Bossio, 8 App.Div. 306 ; 40 Supp. 994. After execution has been issued on the judgment, the attach- ment is merged in the execution. Peetsch v. Sommers, 31 App. Div. 255 ; 53 Supp. 438. If the suit is dismissed for lack of jurisdiction, the attach- ment falls. Petersen v. Broclcelmarm, 1 City Ct. E. 193. 2. Who may move to vacate. — A defendant or a person who has acquired a lien upon the attached property may apply to the court to vacate the warrant. Code Cw. Pro. § 682. But 716 BEADBUEY's LANSESTG-'s forms and PEACTICE. Vacating an Attachment. he must demonstrate that he has a lien upon the property covered by the attachment which he seeks to set aside. Selser Bros. Co. V. Potter Produce Co., T7 Hun, 313 ; 28 Supp. 428 ; Jiamersohlag v. Cathoscope Meo. Co., 16 App. Div. 185 ; 41 Supp. 668 ; Tim v. Smith, 93 IST. Y. 87 ; Sill Stove Wks. v. Scott, 62 App. Div. 566 ; 71 Supp. 181. A junior attaching creditor, or an execution creditor, may, at any time before the actual application of the attached prop- erty, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate or modify the ^v ar- rant. Code Civ. Pro. % 682 ; Smith v. Union Milk Co., 70 Hun, 348 ; 24 Supp. 79. But he should be held to a strict construction of his own procedure when he seeks on technical grounds to set aside a prior attachment in order to gain a priority of lien. Ladenlurg v. Commercial Bank, 148 IST. Y. 202. He cannot have the prior attachment set aside upon an objection to which his own proceedings are fairly subject, and any ambiguity will be construed against him. Ladenburg v. Commercial Bank, 148 IST. Y. 202. A good objection in such a case may be that the papers on which the prior attachment was granted against a foreign corporation do not show that the court had jurisdiction of the action under Code Civ. Pro. § 1780. Smith v. Union Milk Co., 70 Hun, 348 ; 24 Supp. 79. Merits not considered; intervention. — Upon motion by a junior attaching creditor to vacate a prior attachment against the same debtor, the court will not, on affidavits, determine the merits of the action. Johnson v. Ha/rdwood Boor c& Trim, Co., 79 Hun, 407; 29 Supp. 797; and cases cited. But such junior attaching creditor may be allowed to intervene in the action in which the prior attachment was granted and defend the action on its merits. Johnson v. Hardwood Door <& Trim Co., 79 Hun, 407 ; 29 Supp. 797 ; cited seemingly with ap- proval in Merchants Nat. Bk. v. Hagemeyer, 4 App. Div. 52, 55 ; 38 Supp. 628. A junior lienor, if his judgment was obtained in the City Court, New York, must show in detail, in his moving papers, when he is seeking to vacate an attachment, that that court. ATTACHMENT. 717 Vacating an Attachment. which is one of limited jurisdiction, had acquired jurisdiction. Ordb V. MetropoUtam, Collecting Agency, 30 Misc. 314 ; 63 Supp. 513 ; Boss v. Ingersoll, 53 App. Div. 86 ; 65 Supp. 753. Justices^ court. — The same rule as that stated above applies where the lien, which is claimed to be prior, is founded on an execution issued on a judgment of a justices' court. Sill Stove Wks. V. Scott, 62 App. Div. 566 ; 71 Supp. 181. A valid lien must he shown to exist in favor of the junior lienor on the property held under the prior attachment, and this must appear by the affidavit of the sheriff alleging facts which show that he has made a valid levy under the junior warrant. Tim v. Smith, 93 N. Y. 87 ; Sill Stove Wks. v. Scott, 62 App. Div. 566 ; 71 Supp. 181. Whether or not these facts can be shown by the affidavit of the attorney on information and belief, in case the sheriff refuses to make the affidavit, is left in some doubt by the two cases last cited, but there seems to be a suggestion in the last mentioned case that upon the absolute refusal of the sheriff to make the affidavit, it can be made by the attorney, if the rules as to affidavits on information and belief are strictly followed. The settled rule is that " Proof of a subsequent valid levy upon the same property covered by the prior attachment is a necessarj'- condition to the right of a subsequent creditor to initiate the proceeding to vacate the prior attachment. Until this fact is established by legal evi- dence, he is a mere stranger having no right to intervene." Sill Stove Wks. v. Scott, 62 App. Div. 566 ; 71 Supp. 181, and cases cited in the opinion. The junior lienor may move on affidavits as well as on the original papers, as he is deemed to be the " defendant " within the meaning of Code Civ. Pro. % 682, providing that the " de- fendant " may move on new affidavits. Steuben Co. Bk. v. Alherger, 75 JST. T. 179. A tempora/ry receiver may move to vacate. Knorr v. N. Y. State Mut. Ben. Assn.,'1Q Hun, 83 ; 29 Supp. 508. He should prove that he has duly qualified. Id. An assignee of a defendant whose property is attached, 718 beadbuey's Lansing's forms and practice. Vacating an Attachment. can move to vacate the levy made under the attachment. Man V. Oicmovrmno, 59 App. Div. 570 ; 69 Supp. 672. Corporation with sa/me name as defendant. — An attachment was granted against a New Jersey corporation ; a New York corporation, having the same name, alleging that it pur- chased all the New York rights and assets of the New Jer- sey corporation, etc., caused the attachment to be vacated ; Held, error, for the New York corporation had no standing in court. Bacon v. Ahley Press, 43 Misc. 345 ; 87 Supp. 165. Defendant, moving to vacate, may appear only specially. Monette v. Oha^don, 16 Misc. 165 ; 37 Supp. 2. 3, When and where motion is to be made. When. — The motion to vacate may be made at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judgment. Code Civ. Pro. § 682. Where. — " An application, specified in the last section (to vacate an attachment) may be founded only upon the papers upon which the warrant was granted ; in which case it must be made to the court, or, if the warrant was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper. Or it may be founded upon proof, by affidavit on the part of the defendant ; in which case, it must be made to the court, or, if the warrant was granted by a judge out of court, to any judge of the court, upon notice ; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sus- tain any ground for the attachment, recited in the warrant, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings ; in which case, the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial." Code Cim. Pro. § 688. In New York County the motion may be made at Special Term, Part 2, whether made on notice or expa/rte. Sturz v. Fischer, 15 Misc. 410; 36 Supp. 892. ATTACHMENT. 719 Vacating an Attachment. As to lohere motion can he made generally see title Motions AND Oedees, am,te, page 309. 4. The motion to yacate may be made on the original, or new, papers. — Code Civ. Pro. % 683. A motion to vacate, made on the original papers, is in the nature of a demurrer, and admits every fact apparent in those papers. Condouris V. Imperial Turkish, etc., Co., 3 Misc. 66 ; 22 Supp. 695. It is improper for the court to consider, on a motion to vacate an attachment, pleadings or proceedings that were not before the court when the attachment was originally granted, if the mo- tion to vacate is made on the original papers. Fox v. Mays, 46 App. Div. 1 ; 61 Supp. 295. Second motion without leave. — A defendant, who has been defeated in his application to vacate an attachment upon the papers on which it was granted, may again move without leave of the court, upon affidavits, to vacate the warrant. Hawhi/ns v. Pakas, M App. Div. 395 ; 60 Supp. 1108 ; citing Thalheimer v. Hays, 4:'2i Hun, 93. This is contrary to the gen- eral rule, and the Code (§ 683) makes the exception. Id. An attachment, obtained ex jparte in New York County, while the action was triable in Kiohmond County, was upheld, for Code Oa). Pro. § Y69 does not apply, the attachment not hav- ing been obtained "upon notice." Farquha/r v. Wisconsin Condensed Milk Co., 30 Misc. 270 ; 62 Supp. 305. Service of summons on wrong officer. — Where plaintiff, hav- ing obtained an attachment, served the summons on a man- aging agent of the defendant corporation, which had desig- nated no person to receive service, but it appeared that the president of the corporation was within the State, the attach- ment was vacated for failure of the plaintiff to effect service within 30 days. Travis v. By. Educational Assn., 33 Misc. 57Y ; 68 Supp. 893. 5. If property levied on is not subject to attachment. — A motion to vacate an attachment, not to set aside a levy upon particular property, cannot be sustained by proof that the 720 BRADBURY'S LANSING'S POEMS AND PRACTICE. Vacating an Attachment. property levied on was not subject to attachment. Herman V. Bailey, 20 Misc. 94 ; 45 Supp. 88. 6. Merits of action not considered. — An order vacating an attachment upon the merits of the cause of action will be reversed ; the question of the merits is for the trial court. Norden v. Duke, 106 App. Div. 514 ; 94 Supp. 878. Where an order vacating an attachment is reversed, the court will not decide a question of law involving the merits. United Press V. Alell Co., 87 App. Div. 630 ; 84 Supp. 1149. The merits will not be considered unless the moving papers are " hope- lessly bad." Story v. Arthur, 35 Misc. 244 ; 71 Supp. 776 ; Peak V. Brooks, 31 Misc. 48 ; 64 Supp. 546 ; aff'd 51 App. Div. 640 ; 64 Supp. 1145. The defendant's defenses will not be gone into if the plaintiff has made out a prima fade case. Thorn v. AVoord, 32 Misc. 456 ; 66 Supp. 587 ; aff'd 54 App. Div. 638 ; 67 Supp. 1147. Where a motion is made to vacate a warrant of attachment, on the papers on which it was granted, the court will not consider what is the correct measure of dam- age to be applied ; on such a motion the court is not trying the case. Delafield v. Armshy Co., 58 App. Div. 432 ; 68 Supp. 998. If, as ground for vacating, it is contended that the plain- tiff's cause of action is really one in equity for an accounting, the motion to vacate will be denied, where the decision of this point would involve a decision of a question involved in the merits of the action in progress. Schultz v. Braokett Bridge Co., 35 Misc. 595 ; 72 Supp. 160. 7. An attachment will not be vacated where the evi- dence in support of it is fairly preponderating. — Thorn V. Alvord, 32 Misc. 456 ; 66 Supp. 587 ; aff'd 54 App. Div. 638 ; 67 Supp. 1147. An order vacating an attachment will be reversed, unless it is certain that the complaint is so de- fective that the plaintiff cannot recover in the action. Good- year V. Commercial Fire Ins. Co., 58 App. Div. 611 ; 68 Supp. 756. If the defendant moves to vacate a warrant of attach- ment, after judgment, and he makes this motion on the judg- ATTACHMENT. 721 Vacating an Attachment. ment and on the original affidavit, no limitation having been fixed by the notice of motion as to the use of the judgment, its effect is to supply defects in the proof and the motion to vacate the attachment wiU be denied. Belmont v. Sigua Iron Co., 80 App. Div. 537 ; 80 Supp. 771. 8. Review by court of appeals. — Prior to the adoption of the Constitution of 1895 and the amendment to Code Civ. Pro. § 190, by L. 1895, c. 946, an appeal could be taken, as of right, to the Court of Appeals, from an order vacating or re- fusing to vacate an attachment. Murphy v. Jach, 142 N. Y. 215. But at the present time (1906) such an appeal can only be taken by permission of the Appellate Division. Code Civ. Pro. §§ 190, 191. 9. Specifying irregularities in the notice of motion to vacate. — A motion to vacate an attachment should be denied if the moving papers do not comply with Bule 37, Gen. Rules of Prac, providing that " when the motion is for irregularity the notice or order shall specify the irregularity complained of." Van Wickle v. Weaver Coal & Coke Co., 88 App. Div. 603 ; 85 Supp. 82 ; Sanger v. Connor, 95 App. Div. 521 ; 88 Supp. 1054; Kloh v. N. T. FerUlizer Co., ^ Hun 266; 33 Supp. 343. Failure to recite the ground of the attachment in the war- rant is a mere irregularity which must be specified in a notice of motion to vacate an attachment. Ennis v. Untermyer, 93 App. Div. 375 ; 87 Supp. 695. So is a failure to set forth evi- dence to sustain a claim for unliquidated damages. Oilmour V. Oakman Motor Vehicle Co., E". Y. Law J., Sept. 18, 1900. Bischoff, J., Supm. Ct. Spl. T., Part 1. The irregularity must he specified in the notice of m,otion or order to show cause ; it is not sufficient to specify it in the moving affidavits only. German Am. Bh. v. Dorthy, 39 App. Div. 166 ; 57 Supp. 172 ; Oliver v. French, 82 Hun, 436 ; 31 Supp. 740. (See title Motions and Okdees, page 303.) But if the affidavits are defective in matter of svbstamce Vol. 1—46 722 beadbuey's Lansing's- poems and peactice. Vacating an Attachment. Eule 37, Gen. Rules of Prac, does not apply as the motion is not made on the ground of irregularity merely. Martin v. Aluminum Plate Co., 44 App. Div. 412 ; 60 Supp. 1010 ; (affidavits on information and belief without disclosing sources of information or ground of helief) -yNorden v. Duke, 106 App. Div. 514 ; 94 Supp. 878 (motion on the ground that no cause of action was shown) ; Andrews v. Schqfield, 27 App. Div. 90 ; 50 Supp. 132 (motion on the ground that there was no evidence to justify the court in granting it) ; Young v. American Bank, No. 2, 44 Misc. 308 ; (affidavit on informa- tion and belief, not setting forth sources and grounds). 10. What affidavits may contain. — The defendant, seek- ing to vacate an attachment before the judge who granted it, may disprove, by counter affidavits, facts alleged in the plaintiff's original affidavits. ; and the plaintiff may read new affidavits, either to fortify his original grounds, or to rebut facts set forth in the counter affidavits. iV. Y. d; Erie Bank V. Codd, 11 How. Pr. 221. Plaintiff's affidavits, however, it was held at the Special Term of the New York Superior Court in 1853, must not deal with grounds for attachment which were not alluded to in the affidavits on which the attachment was issued. Granger v. Schwartz, 11 N. Y. Leg. Obs. 346. Plaintiff's affidavits, in opposing the defendant's motion, " are admissible only to contradict, answer or explain those read on behalf of the defendant." Yates v. NoHh, 44 N. Y. 271 ; Hi/rsch V. Hutchison, 3 Civ. Pro. K. 106. Upon a motion to vacate an attachment on the original papers, a defect in the proof of jurisdictional facts may not be supplied by additional affidavits. Nevada Bank v. Cregan, 17 Misc. 241 ; 40 Supp. 1065. 1 1 . An attachment may be vacated on the papers on which it was granted. — On the ground : (a) That they fail to show jurisdictional facts ; (b) That they fail to show that the plaintiff is entitled to recover a sum stated over and above aU counterclaims known to the plaintiff. ATTACHMENT. 723 Vacating an Attachment. (c) That' unliquidated damages are not sufficiently proved ; (d) That the affidavits are made oh information and belief and the sources of the information and the ground of the be- lief are not sufficiently shown. (e) That the affiant, tliough swearing on knowledge, did not know the facts. (f) That the, allegations as to the fraudulent disposition of property are in the alternative without showing that the de- fendant has actually disposed of property or that he is about to do so. (g) That the ground of the attachment is not properly stated in the warrant. (h) That the affidavit on which the attachment was granted is not properly verified, in that there is a faulty venue, or if sworn to out of the State of New York that the certificate of authentication of the authority of the officer before whom it was taken is insufficient. ■ (i) That the action, as appears on the face of the papers, is not one in which an attachment is authorized. (j) That it nowhere appears in the papers that the defend- ant is a foreign corporation or a nonresident of the State of New York. (k) That a proper undertaking has not been given and filed^ pursuant to Code Ciw. Pro. % 640, and Bule 4, Oen. Rules of Prao. 13. It may be vacated on additional papers on the ground : (a) That the summons has not been served or publication thereof has not been begun within the time prescribed by Code Civ. Pro. § 638, and appearance by the defendant does not ■revive an attachment which has become invalidated by failure to "begin the publication of the summons within thii-ty days after the attachment is granted. Blossom y. Mtes, 84: N. Y. 614. (b) That the defendant is not a foreign corporation, or is not a nonresident of the State of New York. (c) The allegations of fraudulent disposition of property or concealmeiit of person may be controverted. 724 Bradbury's Lansing's forms and practice. Vacating an Attachment. (d) It may be shown that no cause of action exists in favor of the plaintiff, but this must be clear, and if there is doubt the court will not determine this question on affidavits. (e) It may be shown that the plaintiflf has suffered no dam- ages, or that they are merely nominal. (f) That the papers on which the attachment was granted have not been filed as required by BuU 4, Gen. Rules of Prac. and Code Oa}. Pro. § 639. 13. The proper remedy is to reduce the amount. — If the action is by a servant, wrongfully discharged, and he ob- tains an attachment against the master's property, the bal- ance of the salary for the year for which the services were hired, constitutes, prima facie, the measure of damages ; in case the attachment is granted for a sum larger than that which is warranted by the proofs in the affidavit, the proper remedy, it seems, is to reduce the amount of the attachment and not to vacate it. Cohen v. Walker, 38 Misc. 114; Y7 Supp. 105. 14. Vacating attachment on condition. — If an order va- cating a warrant of attachment has been granted upon a con- dition with which the defendant has complied, the plaintiff has obtained an advantage, and is not in a position to demand a reversal of the order. Macdonald v. Manice, 65 App. Div. 610; 72 Supp. 543. 16. Order to show cause. — Where a defendant moves to vacate a warrant of attachment, if the affidavit on which the order to show cause is obtained fails to state the present condition of the action as required by Sule 37, Gen. Rules of Prac, and objection is taken at the proper time, the motion must be denied. Cole v. Smith, 84 App. Div. 500 ; 82 Supp. 982. 16. The order vacating attachment. — Where defendant moves to have an attachment vacated, and on that motion au ATTACHMENT. 725 Vacating an Attachment. order is made, defendant is entitled to have the motion pa- pers recited in the order, and if they are not so recited the order will be sent back to the justice who made it, for re- settlement. Am. Audit Go. \. Industrial Federation,^ A.^^^. Div. 275 ; 84 Supp. 369. Form No. 401. Notice of Hotiou to Vacate or Modify Attachment, or to Increase Security.! (Code Civ. Pro. § 682.) As in form JFo. 186 to demand for relief, and from thence as follows: For an order vacating (or modifying) the warrant of attachment, issued in this action (or to increase the security given by the plaintiff upon the granting of the warrant of at- tachment issued in this action^) \jf for irregularity, add: upon the ground that {specifying irregularity) ], and for such other and further relief as may be just, with the costs of this motion. Dated , 19—.' P. E., Attorney for Defendant, 0. D. {or for E. F.) {Office address.) To T. B., Plaintiff's Attorney. 1 The subject of motions and obders is fully discussed under that topic beginning at page 297, ante. The principles there stated and the forms given apply, of course, to the proceedings to vacate or modify an attach- ment and are not repeated here in full. 2 The application may be for one or more of these forms of relief, to- gether or in the alternative. Code Civ. Pro. § 682. 3 As to the meaning of the words "actual application of the attached property," etc., as used in section 682, Code Civ. Pro., and that they do not apply to a mere levy upon the property under execution, see Wood- mansee v. Sogers, 82 N. T. 88; affirming 20 Hun 285. 726 Bradbury's Lansing's forms and practice. Vacating an Attachment. Form No. 403. Notice of Motion to Vacate Attachment on Papers on Which It Was Granted,' (Code Civ. Pro. § 683.) [Title.] SiE : — Please take notice, that on the attachment issued in the above-entitled action bj Hon. A. B., one of the Justices of the Court, and on the summons and complaint herein, and the aifidavits on which said attachment was granted, a motion will be made at {specify retv/rn place of motion) on the day of , 19 — , at o'clock in the noon, or as soon thereafter as counsel can be heard, for an order vacating said attachment on the ground {Here specify irregularities if motion is made oh such ground, as to which se-e Paragraph 9, ante, page 721; also Paragraph 11, ante, page 722,), and for such other and further relief as may be proper, with the costs of this motion. Dated , 19—. Tours, etc., To A. B., C. D., Esq., Attorney for defendant. Attorney for plaintiff. {Office address.) . Form No. 403. "■ .' Recital of Special Appearance in Notice of Motion to Vacate At- tachment.^ [Title.] Sir: JPlease take notice that the defendant A. B. appears specially herein for the purpose only of moving to vacate the -• 1 See paragraph 4, ante, page 719. 2 See Chapter ApPBABAifOB, ante, y. 159. ;..... ATTACHMENT. 727 Vacating an Attachment. attachment hereinafter specified (and objecting to the jurisdic- tion of the court) and further continue as in form No. Ifil or No. m. Form No. 404. Affidavit to Procure Order to Show Cause why Attachment Should Not he Vacated, [Title.] CouNTT OF ss. : I. A. B., being duly sworn, says he is the (attorney for the) defendant in the above-entitled action. II. That a warrant of attachment was issued herein on the day of , 19 — , SM.A{s2>ecify proceeding taken under the warrant). III. The defendant wishes to move to vacate said warrant on the papers on which the same was granted and it is es- sential that said motion should be brought on for a hearing within a shorter period than the same could be brought on by a notice of motion, as all of defendant's property has been seized under said attachment, {Oi- state other reason why or- der to show cause is necessary) ; and deponent therefore prays for an order to show cause returnable the day of 19—. ly. No previous application for an order to show cause herein has been made. Said action is (not) at issue and has not yet been tried or disposed of and the next trial term at, which said action is triable is appointed to be teld at ■ beginning the day of , 19 — . Sworn to, etc. A. B. , 728 BRADBURY'S LANSING's FORMS AND PRACTICE. Vacating an Attachment. Form No. 405. Order to Show Cause Why Attachment Should Not be Vacated or Modified or Security Increased. (Code Civ. Pro. §682.) [Title.] On the annexed affidavit of A. B., sworn to the day of , 19 — , in which sufficient reason is stated why a motion to vacate the attachment issued herein should be brought on for argument in less than eight (five) days ' ; and on the summons, complaint and affidavit of 0. D., sworn to the day of , 19 — , on which said attachment was granted, and on the original warrant of attachment herein, dated the : — day of , 19 — , and the undertaking filed in the office of the Clerk of the County of on the day of , 19 — , in this action {Recite any other pwpers to he used on the rrbotum) ; it is Obdeeed, that the plaintilf show cause at a Special Term ^ of this court to be held at in and for the comity of , on the day of , 19 — , at • o'clock in the noon, or as soon thereafter as counsel can be heard, why the attachment issued herein on the day of , 19 — , should not be vacated, set aside and annulled, on the ground that {Here state amy irregularity which is the hasis of the motion)? Or, why said warrant of attachment should not be modified in the following particulars (Statmig them). Or, why the undertaking given by the plaintiff herein should not be increased to the sum of dollars on the ground that the security given by the plaintiff is totally inadequate to 1 See Bule 37, Gen. Rules ofPrac. See also topic MoTiONa^aaid Okdbks, ante, page 297, and discussion of Bule 37 at pages 305 et seq., and forms Nos. 199, 200 and 201, ante, pages 359-362. 2 As to where motion can be made returnable see paragraph 4, pages 309 et seq. 3 See paragraph 9, ante, page 721. ATTACHMENT. 729 Vacating an Attachment. protect the defendant for the damages which he might suffer by reason of the issuing and~ levying of said attachment. And why the defendant should not have such other and different relief as may be just, with the costs of this motion.^ Service of this order on the plaintiff's attorney on or before the day of , 19 — , at o'clock in the noon, shaU be deemed sufficient. It is FtJKTHEK oBDEEED that the defendant may read on this motion any additional affidavits which he may serve on the plaintiff's attorney on or before the day of , 19 — , at o'clock in the noon.^ Dated, , 19—. M. N., Justice of the Supreme Court of the State of New York (or other court as the case may be). Form No. 406. A£B.davit on Behalf of Person Holding Junior Lien to Vacate Prior Attachment. 3 (Code Civ. Pro. § 682.) (Title of action in which senior attachment was issued, as was done in Mil Stove Wks.v. Scott, 62 App. Div. 566 ; Yl App. Div. 181 ; or title of both actions as was the practice in Doheny V. Warden, 75 App. Div. 47; 77 Supp. 959.) 1 As to what relief can be granted under prayer for general relief, see page 329, paragraph 4. 2 See paragraph 5, page 314; also form No. 188, page 345, and notes thereto. 3 See paragraph 2, ante, page 715. 730 Bradbury's Lansing's forms and practice. Vacating an Attachment. State of New ) County of j ®^' ' I. A. B. being duly sworn says he is the sheriflf of the county of , State of New Tork ; that on the day of , 19 — , he received as such sheriff an original warrant of attachment which is dated , 19 — , and is signed by Hon. 0. D., one of the Justices of the New York Supreme Court (fir the County Judge of the County of ) ; that said warrant was duly issued in an action now pending in the Su- preme Court, ■■ County, in which action E. F. is the plaintiff and G. H. is the defendant, and a true copy of said warrant is hereunto annexed marked Exhibit " A "and made a part of this aifidavit. II. That thereafter and on the day of ■ , 19 — , deponent as such sheriff, acting under the Warrant of at- tachment hereinbefore described, levied upon and took into his actual possession and control and now has in his actual pos- session and control certain personal property, the property of G. H., the defendant in said action, the property being more particularly described in the schedule hereunto annexed marked Exhibit " B " and made a part of this affidavit. III. That thereafter and on the day of , 19 — , in an action now pending in the Supreme Court ^ in which I. J. is the plaintiff and said G. H. is the defendant, a warrant of attachment was duly issued, and signed by Hon. C. D., one of the Justices of the New Tork Supreme Court (or of the County Court of the County of ) and said warrant was duly delivered to deponent as such sheriff on the day of , 19—, and a true copy thereof is hereunto annexed marked Exhibit " C " and made a part of this affidavit ; and deponent thereupon as such sheriff acting under said warrant of attachment duly levied upon the same 1 If the process und«r which the junior lien is claimed was issued from an inferior court care should be taken to set forth every jurisdictional fact as required to prove the validity of such process when it is denied. See mi Stove Works v. Scott, 62 App. Div. 566 ; 71 Supp. 181. See also- paragraph 2, ante, p. 715. ATTACHMENT. 731: Vacating an Attachment. property mentioned and described in the paragrapli hereof marked II, and the schedule hereunto annexed marked Ex- hibit " B " and now has the said property in his actual posses- sion and custody under and by virtue of both of said warrants of attachment hereinbefore described. I^- {Add any other allegations made necessary hy the pa/rtic- ular circumstances, including the formal statements when the application is ex parte or am. order to show cause is secured.) Sworn to, etc. A. B. Form No. 407. Affidavit of Party or Attorney Supplementary to Form No. 406. (Code Civ. Pro. §682.) [Title as in Form JSTo. 405.] OOTJNTT OF , SS. : I. L. M., being duly sworn, says he is the (attorney for L. M. who is the) plaintiff in an action now pending in the Supreme Court, County, against Gr. H. who is the same person who is the defendant in the above-entitled action. That a warrant of attachment was duly issued in the action in which (said L. M.) deponent is the plaintiff, on the day of , 19 — , and was on the day of , 19 — , placed in the hands of the sheriff of the County of , for execution. II. {If the motion to vacate is not made on the original papers, set forth here any matters which the attachment debtor might allege as a reason for 'Vacating the attachment}) 1 The junior attachment creditor can move on the same grounds that the attachment debtor might set up. See paragraph 2, ante, pages 715 and 716; and 8teuben Co. Bk. v. Alherger, 75 N. Y. 179. 732 Bradbury's Lansing's forms and practice. Vacating an Attachment. III. {If cm application is to he made for an order to show cause, set forth facts specified in Paragraph IV, in form No. 191, at page 3^.) Sworn to, etc. L.M. Form IVo. 408. Affidavit by an Assignee of the Attachment Debtor, > [Title.] County of ss. : G. H. C, being duly sworn, said : On the day of 19 — , the defendant F. W. duly executed and deliv- ered to me an assignment in writing, whereby he assigned to me all his individual property upon trust to take possession of the property and convert it into money, and after paying the expenses of the trust to pay first the individual indebtedness of said W. to his individual creditors, if sufficient should be realized for that purpose, and if not, to apply the property ratably to such payment, and if any surplus remained after paying such individual indebtedness, to apply the same to the -payment of the partnership indebtedness of said "W". as a member of the firm of G. & W., without any preferences to any of the creditors, either individual or partnership. I thereupon duly accepted and assented to such assignment, and such assent duly appeared in writing in such assignment. The said assignment was on the day of , 19 — , duly subscribed and acknowledged by said "W. and myself, and recorded in the offices of the county clerk and of the register of the county of where said W. resided, and also of the County of where said W. carried on business at the date thereof. 1 have since acted and am now acting as assignee for the bene- 1 Upheld as sufficient in Marine Nat. Bk. v. Ward, 35 Hun, 395, ATTACHMENT. 733 Vacating an Attachment. fit of the creditors of F. W. under such assignment, and as such have an interest in his property which has been attached in this action, which interest was acquired after said property was so attached and on the day of , 19 — , as aforesaid. (Insert other allegations necessa/ry where order to shoto cause is demanded. See form No. 191, page Slf.!.) Sworn to, etc. G. H. C. Form No. 409. Order Vacating or Modifying Attachment or Requiring Increased Security. (Code Civ. Pro. §682.) {For general provisions of court orders see forms beginning with No. 215, atpa,ge 371, in which insert the following order- ing cla/uses :) Oedeeed, that the attachment issued in the above-entitled action against the property of the defendant C. D. on the day of ' — , 19 — , be and the same is hereby in all particulars vacated and annulled with ten dollars costs to the defendant {or other moving pa/rty) against the plain- tiff. Or, Oedeeed, that the warrant of attachment issued herein against the property of the defendant C. D. on the day of , 19 — , be and the same hereby is modified by decreasing the amount thereof from the sum of dol- lars, to the sum of dollars, and that the sheriff of the County of release and return to the defendant so much of the property of the defendant levied upon by him 734 Bradbury's Lansing's forms and practice. Vacating an Attachment. under said attachment, as is over and above the amount sufficient to satisfy said warrant of attachment as hereby modified. {Add provision as to costs.) Or, Oedeeed, that on or before the day of ■ — , 19 — , the plaintiff herein cause to be executed and , filed with the clerk of this court, a new undertaking, to be approved by a justice of this court, in the sum of dollars, in place of the undertaking dated the day of , 19 — , and filed in the office of the clerk of the County of oa the day of , 19 — , to secure the defend- ant against any damages or costs by reason of the issuing of the warrant of attachment herein, dated the day of , 19 — , against the property of the defendant, and upon failure of the plaintiff to comply with the conditions of this order it is further ordered that said warrant of attach- ment be vacated and annulled with ten dollars costs to the defendant against the plaintiff. Or, {If motion made by junior lienor.) Oedeeed, that as to L. M., the moving party herein, who has {or claims) a lien on the property of 0. D., the defendant in this action, which lien is junior to that of said A. B., the plaintiff herein, the attachment granted herein on the day of , 19 — , against the property of C. D., {etc., as above). ATTACHMENT. 735 Discharging an Attachment. YI. DISCHARGING AN ATTACHMENT. FORMS. NO. PAGE. 413. Affidavit to procure discharge of attachment. 739. 414. Order discharging attachment 740. 415. Affidavit by partner for discharge of interest in partnership property from attachment upon notice 741. 416. Notice of motion to discharge attachment upon giving security . 742. 417. Notice of motion for discharge of attachment as to partnership property upon giving security 742. 418. Order of reference to take proof as to value of property at- tached 743. 1. In general. — The remedy given by Discharge of At- tachment differs from that given by Yacating the Attach- ment {q. v., ante, p. T15), in that when an attachment is va- cated it becomes absolutely void, whereas when an attachment is discharged, other security is substituted for it. " The effect of an order or judgment vacating the attachment is an ad- judication that the property was illegally seized and that the sheriff is retaining it without any process, but where the at- tachment is discharged by the giving of an undertaking the attachment still lives and the undertaking is substituted in place of the levy." Zawlor v. Magnolia Metal Co., 2 App. Div. 552 ; 38 Supp. 36 ; as quoted in EsselsPyn v. Union Surely cfc Guaranty Co., 82 App. Div. 474 ; 81 Supp. 532. By dis- charge, the attachment " is not thus vacated. It is simply discharged as to the property attached.'''' Sooysmith <& Go. v. Americam, Surety Co., 28 App. Div. 346 ; 51 Supp. 313. The Code provision allowing discharge of attachment is an act of grace. Lawlor v. Magnolia Metal Co., 2 App. Div. 552 ; 38 Supp. 36. 2. How discharge obtained. — The defendant may, at any time after he has appeared in the action, apply to the judge who granted the warrant, or to the court, for an order to dis- charge the attachment, as to a whole or a part of the property attached. Code Civ. Pro. § 687. Upon such application, the 736 Bradbury's Lansing's forms and practice. Discharging an Attachment. defendant must give an undertaking equal to the amount of any judgment the plaintiff may recover ; or to the appraised value of the property attached, or of that part as to which the attachment is to be discharged. Code Civ. Pro. § 688. The procedure, in. the case of discharging the attachment, is regulated by Code Cvu. Pro. §§ 687-696, inclusive. The words of § 687, " and before final judgment," which immediately followed the words " at any time after he has appeared in the action," were dropped byZ. 1906, o. 507, in effect September 1, 1906. By Z. 1906, c. 507, in effect the same date, the follow- ing was added to § 688 : " Upon such application being made after final judgment, the defendant must give the security required to perfect an appeal to the court of appeals from a final judgment, of the same amount or to the same effect, and to stay the execution thereof." The order discharging the attachment may he made ex parte, except when made under § 689, upon an afftdavit stating the proceedings had and the giving of an undertaking in the statutory form, and unless the court requires notice to be given under § 696. But of course the levy will not be re- leased by the sheriff until his costs are paid nor until the plaintiff has had a chance to except to the suificiency of the sureties or to the form of the undertaking. Code Civ. Pro. § 691. The undertaking submitted on such an ex parte mo- tion will be for any sum for which the plaintiff may recover judgment, with interest, or for the appraised value of the property to be discharged. See title Undeetaking, post, page 743. 3. Amount of the undertaking. — The court has not the power to discharge the attachment, upon the defendants giv- ing nominal security, even although it seems that no cause of action exists in favor of the plaintiffs. Foley v. Virtue, 8 Abb. Pr. (IS". S.) 407. "Where the defendant's undertaking was only in a sum equal to the plaintiff's demand, the court increased it so as to cover, also, all possible interest and costs. Morewood v. Curtis, 13 Civ. Pro. R. 218. Interest is payable ATTACHMENT. 737 Discharging an Attachment. by the surety in the uadertaking from the date of the judg- ment in the original action, and not from the date of the un- dertaking. Sooysmith (& Co. v. American Surety Co., 28 App. Div. 346 ; 51 Supp. 313. Defendant cannot obtain discharge of two attachments by giving one undertaking. Walton v. Dah/, 17 Hun, 601. 4. The order. — The order should state whether the dis- charge applies to the whole of the property attached, or to part only ; and if a part, what part ; but as a general rule it need not contain directions as to the manner of the redelivery. Ellsworth V. Scott, 3 Abb. N. C. 9. 5. Effect of discharge. — The giving of an undertaking to discharge the attachment does not preclude the defendant from moving to vacate the attachment. Glajlin v. Baere, 57 How. Pr. 78 ; app. dism'd 80 N. Y. 642 ; La/wlor v. Mag- nolia Metal Co., 2 App. Div. 652 ; 38 Supp. 36 ; Garhutt v. Ilanff, 15 Abb. Pr. 189. Though defendant has had the at- tachment discharged, he may, in a proper case, compel the plaintiff to increase the security given by him on the obtain- ing of the attachment. Dusseldorf v. Redlich, 16 Hun, 624. The defendant, who has given a bond to have the attachment discharged, must pay the sheriff his fees for poundage and for care of the property, before the defendant is entitled to a return of the property. Lamlor v. Magnolia Metal Co., 2 App. Div. 552; 38 Supp. 36. The Sheriff of New York County has the right, under L. 1890, c. 523, as amended by L. 1892, 0. 418, to retain the property levied on until his poundage is paid, but this right gives him no cause of action for poundage. CBrien v. Manhattan B. Co., 45 Misc. 643 ; 91 Supp. 69. 6. Action on the undertaking. — A demand on the surety in the undertaking is a prerequisite to an action on the under- taking. Sooysmith c& Co. v. American Surety Co., 28 App. Div. 346 ; 51 Supp. 313. " The undertaking is to pay on demand the amount of the judgment, not exceeding the sum specified, Vol. 1—47 738 bradbuky's Lansing's forms and practice. Discharging an Attachment. with interest. Tiie sum specified thus becomes due upon the recovery of the judgment, but a demand is made a prerequi- site to the right of action therefor. The intention here is plain. The right of action accrues only upon the demand," etc. Sooysmith c& Co. v. American Surety Co., 28 App. Div. 346, at p. 351 ; 51 Supp. 313. " The 4:th instruction insists that a demand of payment should have been made of Haring (the principal), and in case of non-payment by him that notice of such demand and non-payment should have been given in a reasonable time to the defendants, otherwise the defendants would be discharged from their guarantee. "We are of opinion this instruction ought to have been given. By the very terms of this guar- antee, as well as by the general principles of law, the guaran- tors are only collaterally liable upon the failure of the prin- cipal debtor to pay the debt. A demand upon him and a failure on his part to perform his engagements are indis- pensable to constitute a cause of action. The creditors are not bound to institute legal proceedings against the debtor, but they are required to use reasonable diligence to make demand and to give notice of non-payment." Judge Story in Douglass v. Reynolds, Y Peters, 112, 127. In an action on a bond conditioned to pay " on demand," a precedent demand according to the condition must be al- leged. Douglass v. BaMone, 5 Hill, 143. An action on a bond, it was held in the Supreme Court, JSTew York State, in 1838, given to several attaching credi- tors, must be brought in the names of all the obligees. Ar- nold V. Tallmadge, 19 Wend. 527 ; contra, Pearce v. Hitch- cock, 2 N. Y. 388. In an action on the bond, where plaintiff produced a judgment against a firm, rendered in a suit in which one member of the firm neither appeared nor was served with process, it was held that this judgment did not prove, even prim,a facie, a debt against such partner. Oakley v. Aspinwall, 4 E". Y. 513. The sureties are entitled to the advantage of any payments made by the defendant. Baere v. Armstrong, 26 Hun, 19. ATTACHMENT. 739 Discharging an Attachment. The discharge of the attachment debtor in hankruptcy does not discharge the surety on art. undertaking given to discharge an attachnaent. HolyoTce v. Adams, 1 Hun, 223 ; appeal dis- missed in opinion approving this doctrine, 59 N. Y. 223,241 ; McGombs v. Allen, 18 Hun, 190 ; afE'd 82 N. Y. 114 ; Knapp V. Anderson, 71 K Y. 466 ; aflE'g 7 Hun, 295 ; Bill v. Hard- ing, 130 U. S. 699. Provided the attachment is procured more than four months before the petition in bankruptcy is filed. In re Beamer Goal Co., 110 Fed. Eep. 630. " The liability of a person who is a co-debtor vs^ith, or guar- antor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such, bankrupt." Bankruptcy Act, 1898, § 16. Form No. 413. Affidavit to Procure Discharge of Attachment Upon Giving Undertaking.! (Code Civ. Pro. § 687.) [Title.] County of , ss. : A. B. being duly sworn says : I. I am the defendant in the above-entitled action which is brought to recover the sum of dollars with interest from the day of ,19 — , and said action is now at issue but has not yet been tried {or state condition of action). II. An attachment was issued herein on the day of , 19 — , against my property and the Sheriff of the County of has levied upon my property. 1 The foregoing affidavit with such changes as will readily suggest tliem- selves may be used when the application is made by one or more of sev- eral defendants, under Code Civ. Pro. § 689. 740 beadbuby's Lansing's forms and practice. Discharging an Attachment. {If the property has been appraised add :) and said property upon which said attachment has been levied has been duly appraised as being of the value of dollars. {If it is desired to discharge the attachment as to a portion of the property add:) A certain portion of the property on which the attachment has been levied, to wit : {describe it in detail) ; has been duly appraised as of the value of the sum of dollars. III. Deponent therefore prays that an order may be made discharging said attachment as to all the property upon which a levy has been made {or as to that portion of the property of the appraised value of dollars hereinbefore more par- ticularly described) upon approval of the undertaking here- with submitted. lY. No previous application for such an order has been made. Sworn to, etc. A. B. Form No. 414. Order Discharging Attachment. (Code Civ. Pro. §687.) At, etc., when made by the court. [Title.] An attachment herein having been levied upon the property of the defendant and said property having been duly appraised as being of the value of dollars \or, and a certain por- tion of the property attached having been duly appraised as be- ing of the value of dollars which said portion is more particularly described as follows {give detailed desciiption)'] ; and the defendant (one of the defendants) having applied for a discharge of said attachment as to all of the property upon ATTACHMENT. 741 Discharging an Attachment. which a levy has been made {or as to a portion of the prop- erty levied upon which portion is more particularly described hereinbefore) and said defendant having given an undertak- ing which has been duly approved as required by the Code of Civil Procedure, now on, motion of C. D., attorney for the said defendant, it is hereby Oedeebd, that the attachment issued herein on the day of , 19 — , be and the same is hereby discharged as to all the property levied upon {or as to the portion of the property levied upon, which portion is hereinbefore more par- ticularly discribed.) Dated, , {if Judge's order). L. M., Justice of the Supreme Court of the State of New York. Form No. 415. Affidavit by Partner for Discharge of Interest in Partnership Property from Attachment upon Notice. (Code Civ. Pro. §693.) [Title.] A. B., of , being duly sworn, says, that he, with C. D., compose the firm of A. B. & Co., engaged in the busi- ness of , at ; that the interest of said C. D. in the goods and chattels of said partnership, has been seized in the above-entitled action by M. IS"., sheriff of county, under a warrant of attachment issued to him against the property of the said 0. D. That the deponent desires to obtain an order discharging the said attachment from the said interest of said C. D., in said goods and chattels, upon giving the undertaking in such case required by law. Sworn to, etc. 742 Bradbury's Lansing's forms and practice. Discharging an Attachment. Form No. 416. Notice of Motion to Discharge Attachment upon Giving Security. (Code Civ. Pro. § 689.) As in form No. 186 to the demand for relief and from thence as follows : For an order discharging the attachment in this action upon giving security as required by law. Dated, , 19—. E. F., Attorney for Defendant, C. D. {Office address.) To J. K,, Attorney for Plaintiff. Form No. 41*7. Notice of Motion for Discharge of Attachment as to Firm Property upon Giving Security. (Code Civ. Pro. §696.) As inform JVo. 186 to demand for relief and from thence as follows : For an order discharging the property' of the de- fendant C. D. [or the interest of the defendant, C. D., in the property of the firm of {insert name of frm) ], from the at- tachment levied thereupon by M. N., sheriff of the county of , upon giving security as required by law. Dated , 19—. E. F., Attorney for . {Office address.) To T. K, Attorney for Plaintiff. ATTACHMENT. 743 The Undertaking. Form No. 418. Order of Reference to take Proof as to valueof Property Attached. (Code Civ. Pro. § 695.) At, etc., where made by the court. [Title.] An application having been made by A. B., for the dis- charge of an attachment levied by M. N., sheriff of the county of , upon the interest of the defendant, C. D., in the partnership property of said A. B. and 0. D., and due notice of said application having been given to the plaintiff in the above-entitled action : Now, on filing, etc. {stating papers read upon the motion), and after hearing K. L., counsel for said A. B., and O. H., counsel for said plaintiff {or no one appearing to oppose) : It is hereby ordered (or I do hereby order), that it be re- ferred to J. P., of , as referee, to take proof of the value of the property attached (and as to the sufficiency of the sureties in the undertaking, proposed to be given by said A. B., to procure the discharge of said attachment). Date {of Judge's order). A. O., Judge {or Justice) of the Court {where order is made by judge). YII. THE UNDERTAKING. FORMS. NO. PAGE. 420. Undertaking on granting warrant of attachment 749. 421. Undertaking where attached property is claimed by third per- son 750. 422. Undertaking by third person who claims property taken under an attachment against another 751. 423. Undertaking by defendant on application to discharge attach- ment 752. 424. Undertaking by surety company on discharging attachment. . . 753. 744 Bradbury's Lansing's forms and practice. The Undertaking. PAGE. 425. Undertaking wliere application is made by some but not all of several defendants 754. 426. Undertaking on application by partner to discharge attachment from partnership property 754. 427. Undertaking upon attachment of goods on vessel to procure delivery 756. 428. Undertaking to discharge domestic vessel from attachment. . . 757. 429. Undertaking by defendant to obtain possession of vessel after discharge or vacating of attachment 758. 430. Undertaking to be given by plaintiff in case of dischaige of attachment of foreign vessel to prevent its discharge 759. 431. Notice of exception to sufficiency of sureties in undertaking given on discharge of attachment 760. 1. In general. — An undertaking is an engagement by one of the parties to a contract to the other, and not a mutual engagement of the parties to each other. As used in this ar- ticle it means a promise by a party to pay a certain sum of money to the other on the happening of a certain con- tingency. This article covers both the undertaking that the plaintiff gives as a condition of obtaining the attachment, and the undertaking that the defendant gives for the privilege of having the attachment discharged. As to the effect of fail- ure to file an undertaking, see title Filing, ante, p. 286. See also title Bonds and Undeetakings, ante, p. 213. 2. Undertaking on obtaining attachment. — A plaintiff, obtaining an attachment, must give a written undertaking, with sufficient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs, which may be awarded to the defendant, and all damages, which he may sustain by reason of the attach- ment, not exceeding the sum specified in the undertaking, which must be at least $250. Code Oim. Pro. § 640. The sureties need not justify upon exception by the defendant, but of course they are required to add to the undertaking affidavits of justification which the judge granting the warrant deems sufficient. But see Paragraph 8, post, p. 747. ATTACHMENT. 745 The Undertaking. 3. Number of sureties necessary. — It has been " the in- variable practice," in the First Department, under Code Civ. Pro. §§ 640, 811, " to require two sureties, if individuals, al- though this rule has been relaxed where, in lieu thereof, a responsible surety company has become liable on the under- taking." Ooldmarh v. Magnolia Metal Co., 28 App. Div. 264 ; 51 Supp. 68. Now, by statute, execution by a surety company is equivalent to the execution of the bond or under- taking by two sureties. Code Qiv. Pro. § 811. 4. Where surety is fictitious. — Putting in fictitious and insufficient surety in an undertaking is a contempt of court. McAveny v. Brush, 1 App. Div. 97 ; 37 Supp. 105. 5. A mere deposit of money will not be accepted in lieu of an undertaking. — Bate v. McDowell, 48 Super. 219 ; ap- peal dismissed, 97 K Y. 646. 6. The amount. — The amount of the undertaking is in the discretion of the court or judge, and unless that discretion has been abused, the appellate court will not interfere. Riggs v. Cleveland, etc., B. Co., 21 Week. Dig. 45. An attachment was granted in the Municipal Court, New York ; defendant moved to set it aside on the ground that the undertaking left the amount blank ; motion denied, for sureties may if they wish bind themselves in an unlimited amount. Tischler v. Fish- 7nan, 34 Misc. 172 ; 68 Supp. 787. Bicreasing the amount. — The power to increase an under- taking on attachment is frequently exercised. It was formerly considered an incident to the regulation and conduct of pro- visional remedies. Now, Code Civ. Pro. § 682 expressly con- fers this power. Where the undertaking given to obtain at- tachment was insufficient, and the court at Special Term had increased it, the Appellate Division affirmed the order giving the increase ; but although the court apparently wished to in- crease it still further, it did not do so, because the defendant had not appealed on the ground that the amount was still insuf- 746 Bradbury's Lansing's forms and practice. The Undertaking. ficient. Manda v. Mienne, 13 App. Div. 237 ; 43 Supp. 194. In an action for alienation of a wife's affections, a $Y5,000 at- tachment was issued and a $250 undertaking ; on appeal the order was modified, making the attachment one for $50,000, and the undertaking one for $2,500. Quest v. Lowther, 84 App. Div. 462 ; 82 Supp. 1015. On a motion to increase the amount of the undertaking in attachment from $250 to $6,000^ the amount of damage thus far claimed being about $3,700, for counsel fees and other expenses, the undertaking was raised to $4,000, the court believing that the trial and the eventual result of the appeal could alone decide the fate of the attachment. Ives v. Ellis, 35 Misc. 333 ; 71 Supp. 971 ; aff'd 67 App. Div. 619 ; 73 Supp. 1137. Where the attach- ment was for $20,000 and the original undertaking $300, the undertaking was increased in the sum of $2,500. Manda v. Etienne, 13 App. Div. 237 ; 43 Supp. 194. Where, in an ac- tion for $205,000, for services in connection with obtaining a lottery prize, over $100,000 was attached on a $1,000 under- taking, it was held that the undertaking should be increased to il5,000, and that in default thereof the attachment should be set aside. Whitney v. Denniston, 2 T. & C. 471. If value of attached property decreases. — A decrease in the value of shares of stock which have been attached (such de- crease resulting from the market) will not be provided for by a corresponding increase in the undertaking. Miller v. Ferry, 50 Hun, 256 ; 2 Supp. 863. 7. The cause of action on this undertaking. — If an action is discontinued and the attachment is withdrawn, on the mo- tion of the plaintiff, ex parte, and subsequently the defendant appears in the action and moves to modify the order of dis- continuance, by inserting therein a provision to the effect that the defendant be permitted to have the complaint dismissed, and this motion is granted, the defendant thereby has an im- mediate right of action on the undertaking, given in accord- ance with Code Cm. Pro. § 640. Straus v. Guilhou, 80 App. Div. 50 ; 80 Supp. 180. A defendant was unable to have the ATTACHMENT. 747 The Undertaking. attachment vacated, but obtained a verdict on the trial of the action ; counsel fees in the attachment suit were held dam- ages sustained because of the attachment suit and were to be paid by reason of the undertaking. Tyng v. American Surety Co., 48 App. Div. 240 ; 62 Supp. 843. If a motion to vacate is successful at first, but fails in the appellate court, and at the trial, subsequently, the complaint is dismissed, plaintiff's surety must pay counsel fees and other expenses incurred in the proceedings to vacate. Tyng v. American Surety Co., 174 N^. Y. 166. But if an attachment is vacated on consent, the debtor, having paid in full, is not entitled to make the other party, through his surety, pay costs for counsel fees. Braun- stein v. American Bonding Trust Co., 84 Supp. 982. Demand is not necessary as a condition precedent to this action. Epstein v. U. 8. Fid. c& Guar. Co., 29 Misc. 295 ; 60 Supp. 527. 8. The undertaking on obtaining discharge of attach- ment. — The defendant, on applying for the privilege of dis- charge of the attachment against his property, must give an undertaking, with at least two sufficient sureties, to the effect that he will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be at least equal to the amount of the plaintiff's demand, as specified in his affidavit ; or, at the option of the defendant, equal to the appraised value, according to the inventory, of the property attached ; or, if the application is to discharge the attachment, as to a part only of the property attached, to the appraised value of that portion. Code Civ. Pro. § 688. Upon such application being made after final judgment, the defendant must give the security required to perfect an appeal to the Court of Ap- peals from a final judgment, of the same amount or to the same effect, and to stay the execution thereof. Id. For- merly, the defendant could not choose what property he would withdraw. EoyaZ Ins. Co. v. JSfoble, 5 Abb. Pr. {E. S.) 54. 748 The Undertaking. Now, however, he can obtain an order discharging the at- tachment, as to a whole or a part of the property attaclied. Code Civ. Pro. § 687. The sureties must justify if required. Code Civ. Pro. § 690. An undertaking was held not rendered invalid by the fact that in consideration of its execution, the plaintiff, and not the judge, relieved the property from levy. Cochroft V. Qlafiin, 64 Barb. 464. " The court has general power to discharge attachments the same as all other provisional remedies." Whitney v. Dennis- ton, 2 T. & C. 471. 9. Two undertakiflgs are necessary if the discharge of two attachments is sought. — Walton v. Daly, 17 Hun, 601. 10. May he made out to assignees The undertaking, it seems, may be made out to assignees of the plaintiff, in their own names. Besley v. Palmer, 1 Hill, 482. 11. The amount. — The bond must be more than nominal in amount. Foley v. Virtue, 8 Abb. Pr. N. S. 407. See para- graph 8, ante. 13. The action on this undertaking. — In an action on an undertaking given on discharging attachment, the defendants are estopped from denying any fact recited in the undertak- ing. Eiggins v. Healy, 47 Super. 207, aff'd 89 N. Y. 636 ; Cristal v. Kelly, 24 Hun, 155. A demand on the principal is a prerequisite to this action. SooysmAth da Co. v. American Surety Co., 28 App. Div. 346 ; 51 Supp. 313. 13. Claims by third persons. — Code Civ. Pro. §§ 657, 658, 1418, 1419, relating to the attachment of property when there are claims by third persons, were amended by L. 1904, c. 541 ; an important change made being that such third per- sons should make an affidavit, specifying the property, " and in all cases stating the value of the property claimed and the ATTACHMENT. 749 The Undertaking. damages, if any, over and above such value, which the claim- ant will suffer in case such levy is not released." A new section, Code Civ. Pro. § 658a, was added by L. 1904, c. 293, prescribing the procedure on an application for the discharge of an attachment where a third party claims the property attached. Form ]Vo. 430. Undertaking on Granting Warrant of Attachment. (Code Civ. Pro. §640.) [Title.] Whereas, the above-named A. B., as plaintiff, has com- menced {or is about to commence) an action for the recovery of money against the above-named defendant, C. D., and has made {or is about to make) application for a warrant of at- tachment, according to the provisions of the Code of Civil Procedure, against the property of said defendant, as a secu- rity for the satisfaction of such judgment as the plaintiff may recover in said action : Now, therefore, we, F. G., of , by occupation a banker, and G. H., of , by occupation a merchant, do hereby jointly and severally undertake, that if the defendant recover judgment in said action, or if the warrant of attach- ment is vacated, the plaintiff will pay all costs, which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum of dollars. {Not less them $250.) Dated the day of , 19 — . F. G. G.H. {Acknowledgment and justification hy the sureties, and ap- proval as inform No. 145, page 223, ante. 750 Bradbury's Lansing's forms and practice. The Undertaking. Form No. 421. Undertaking where Attached Property is Claimed by Third Person. (Code Civ. Pro. § 658.) [Title.] Whereas, M. N., sheriff of county, has levied upon and taken into his custody, under a warrant of attachiuent issued and delivered to him in the above action, certain goods and effects supposed to be the property of the defendant, C. D., described in the inventory thereof made and filed pursuant to law by said sheriff ; and, "Whereas, said goods and effects have been claimed by {or in behalf of) E. F. as his propei-ty ; and, Whereas, a jury, duly impaneled by said sheriff to try the validity of said claim, has found the property of said goods and effects to be in said claimant : Now, therefore, we, G. H., of , merchant, and K. L., of , merchant, do hereby, jointly and sever- ally, undertake, promise and agree, to and with the said M. N., sheriff as aforesaid, that we will indemnify and save harmless the said M. N. for the detention of said goods and effects, not exceeding the sum of dollars. Dated , 19—. G. H. K. L {Aohnowledgment, justificaUon and approval as is form. No. 145, page 223, amte). ATTACHMENT. 751 The Undertaking. Form No. 423. ■Undertaking By Third Person who Claims Property Taken Under an Attachment against another. (Code Civ. Pro. § 658a. )i [Title.] Whereas, a warrant of attachment in the above-entitled action has been levied on goods and chattels of the appraised value of dollars, which goods and chattels are claimed by A. B., and said A. B. has applied {or is about to apply) to the court {or a judge of the Court), for an order dis- charging said attachment as to all {or specify any part thereof) of said property. Now, therefore, we, 0. D., of No. Street and E. F., of No. Street, , do hereby jointly and severally undertake that in an action to be brought on this undertaking the said claimant A. B. will establish that he was the owner of such goods or effects at the time of the levy thereon ; and that in case of his failure to do so, he will pay to the Sheriff of the County of the full value of the property so claimed with interest from the date hereof, together with the costs of the action, not ex- ceeding the sum of dollars {twice the value of the goods clai?ned). Dated, , 19—. CD. E. F. {Add acknowledgimenis, affidavit of justification and ap- proval as inform No. 14:5, page 223, ante. 1 Tliis section of the Code was added by L. 1904, c. 293. It gives to the person who claims title to property attached as that of the attachment debtor, the right to the possession of the property notwithstanding the plaintiff in the attachment action has indemnified tlie sheriff under §658 and thus directs the officer to hold property in spite of the claims of third persons. 752 Bradbury's Lansing's forms and practice. The Undertaking. Form No. 433. TJndertaking by Defendant, on Application to Discharge Attachment. (Code Civ. Pro. § 688.) [Title.] Whereas, the above-named defendant, C. D., is about to apply to the Court (or to Hon. A. O., judge of the Court) for the discharge of a warrant of attachment, issued in the above-entitled action, against the property of [*] said defendant, to M. N., sheriff of county, and levied by said sheriff upon property of said defendant : Now, therefore, we, E. F., of (merchant), and G. H., of (banker), do hereby jointly and severally undertake, that the said defendant will, on demand, pay to the said plaintiff the amount of any judgment which may be re- covered in the above-entitled action against the said defend- ant, not exceeding the sum of dollars,' with interest.^ Dated , 19—. E. F. G. H. {Acknowledgment and justification of sureties, and ajpproval as inform No. 145, jyage 223, a/nte^ 1 The amount is to be equal to amount of plaintiff's demand, as stated in his affidavit, or, at the option of the defendant, to the appraised value of the property attached, according to the inventory ; or, if the applica- tion is to discharge only a part of the property attached, to the appraised value of that portion. GoS,e Civ. Pro. § 688. 2 The undertaking must be forthwith filed with the clerk. A copy thereof, with a notice of the filing, must be forthwith served upon the plaintiff's attorney, etc. Code Civ. Pro. § 690. ATTACHMENT. 753 The Undertaking. Form No. 434. Undertaking By Surety Company on Discliarging Attachment.^ (Code CSv. Pro. § 688.) [Title.] Whereas, on or about the day of , 19 — , an attachment was issued in the above-entitled action to the sheriff of the City and County of , and the said de- fendant C. D. having appeared in said action, and being about to apply to the said court for an order to discharge the same, Now, therefore, the E. F. Co., having an office and a princi- pal place of business at No. Street, in the City of , County of , does hereby, pursuant to the statute in such case made and provided, undertake that the defendant will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against the defendant not exceeding the sum of dollars, with interest. Dated , , 19—. E. F. Co., By , > (Seal) Yice-President, Secretary. {AcJcnowledgment and approval.) 1 This form was taken from the case of Sooy smith v. American Surety Co., 28 App. Div. 346 ; 51 Supp. 313 ; in which it was held that the words "with interest" in the form meant interest from the date of the judgment in the original action, not the date of the undertaking. Vol. 1—48 754 Bradbury's Lansing's forms and practice. The Undertaking. Form No. 435. Undertaking where Application is made by Some, but not All, of Several Defendants. (Code Civ. Pro. § 689.) As in form Wo. JiJ23 to [*], and from thence as follows : The defendants to M. ISf., sheritf of ^ county, and levied by said sheriff upon property of said defendants : Now, therefore, we, E. F., of (farmer), and G. H., of (merchant), do hereby, jointly and severally, un- dertake, promise and agree, to and with the said A. B., plain- tiff, that any judgment recovered against any of the defend- ants in the above-entitled action, will be paid, on demand, not exceeding the sum of dollars,^ with interest, (or that any judgment which may be recovered in the above-en- titled action against the said C. D., either alone or jointly with any other defendant, will be paid on demand, not ex- ceeding the sum of dollars, with interest).^ Dated , 19—. E. F. G. H. (Acknowledgment and justification of sureties and approval as inform No. 145, page 223, ante.) Form No. 436. Undertaking, on Application by Partner, to Discharge Attach- ment from Partnership Property. (Code Civ. Pro. §694.) [Title.] "Whereas, a warrant of attachment was heretofore issued in the above-entitled action to M. N., sheriff of the county of 1 See notes to form No. 423. 2 Tills clause is to be inserted where proof is made by the applicant, as required by § 689, that the property belongs to him separately. ATTACHMENT. 755 The Undertaking. -, and said attachment has been levied upon the interest of the defendant, C. D., in the property of the copartnership composed of said 0. D. and A. B., and an application has been made {or is about to be made) to the Court, by said A. B., for a discharge of said attachment from said part- nership property, upon giving security as required by law : Now, therefore, we, I. J., of , by occupation a merchant, and K. L., of , by occupation a merchant, do hereby, jointly and severally, undertake, promise and agree, to and with said M. IST., as such sheriff, that we will pay to him, on demand, the amount of any judgment which may be recovered against the said C D. in the above-entitled action, or which may be recovered against said C. D. in any other action wherein the said A. B. is not a defendant, and wherein a warrant of attachment, or an execution, may come to the said sheriff's hand, at any time before the warrant of attachment so levied as aforesaid is vacated or annulled, not exceeding the sum of dollars.^ Dated, , 19—. I. J. K. L. (Acknowledgment and justification hy sureties, and approval as in form No. 14^5, page 223, ante.) 1 Not less than the value of the interest of the defendant In the goods or chattels, seized by virtue of the attachment, as fixed by the court or judge. If this value, in the opinion of the court or judge, is uncertain, the sum to be such as the court or judge determines. Code Civ. Pro. § 694. 756 Bradbury's Lansing's forms and practice. The Undertaking. Form ]Vo. 43')'. Undertaking upon Attachment of Goods on Vessel to Procure Delivery.' (Code Civ. Pro. § 652.) [Title.] Whereas, a warrant of attachment in the above action has been issued and delivered to the sheriff of county, and said sheriff desires to make a levy, pursuant to said war- rant, upon goods belonging to the defendant, C. D., to the value of dollars, shipped upon the {name of vessel ) for transportation to the port of , in the State of ■ , without reshipraent and trans-shipment in this State, and to obtain the delivery to him of said goods at the port of , in this State, under said levy, Now, therefore, we, E. F., of , merchant, and G. H., of , farmer, do hereby, jointly and severally, un- dertake, promise and agree, to and with I. J., the master (or owner) of said vessel, that the above-named plaintiff, A. B., will pay to said I. J., all expenses, damages and charges which may be incurred by him, or to which he may be subjected for unloading the said goods from the said vessel, and for all nec- essary detention of the said vessel for that purpose, not ex- ceeding the sum of — — dollars. Dated , 19—. E. F. G. H. [Acknowledgment and justification of sureties as in form Wo. 145, page 223, ante.) I certify that I approve of the above undertaking, with respect to its form, the sum specified therein and the suffi- ciency of the sureties therein named. Dated 19 — , at , in the city and county of A. O., Judge of the Court \or County Judge of County.] 1 As to liability of sheriff for a seizure without the undertaking, see Campbell v. Conner, 70 N. Y. 424. ATTACHMENT. 757 The Undertaking. Form No. 438. Undertaking to Discharge Domestic Vessel from Attacliment- (Code Civ. Pro. § 662.) [Title.] Whereas, the {name of vessel) [or the (one-fifth) share or interest in the {name of vessel) ], a vessel belonging to the port of New York, has been seized by M. N., sheriff of county, under a warrant of attachment issued and delivered to him in the above-entitled action against the property of the defendant, C. D. ; and, "Whereas, the undersigned, F. P., has claimed title to said {interest in said) vessel, and appraisers having been there- upon duly appointed have valued said vessel at the sum of dollars, and have duly returned said valuation to the Court {or to Hon. A. O., judge of the Court), on the day of , 19 — ; Now, therefore, we, said F. P., of , merchant, and W. P., of , farmer (and I. M., of , farmer) do hereby, jointly and severally, undertake, promise and agree, to and with the said M. N., as such sheriff, that [*] in an action to be brought upon this undertaking the said F. P., claimant as aforesaid, will establish that he was the owner of the said vessel [or of the (one-fifth) share or interest in said vessel], attached as aforesaid, at the time of the said levy thereupon ; and that, in case of his failure to do so, he will pay the said amount of the valuation of said vessel {or of said share or interest in said vessel), with interest from the date hereof, to the said sheriff ; or, if the said warrant is vacated or annulled, to the said defendant, C. D., or to his personal representatives. Dated ,19—. F. P. W. P. (I. M.) {Acknowledgment, justification and approval as in form. No. 145, page 223, ante^ 758 Bradbury's Lansing's forms and practice. The Undertaking. Form No. 439. Undertaking by Defendant to Obtain Possession of Vessel, after Discharging or Vacating of Attachment- (Code Civ. Pro. §670.) [Title.] Wliereas, the (name of vessel) [or the interest in the (name of vessel) ], a vessel belonging to the port of L , in the of — , has been seized by M. N., sheriff of county, under a warrant of attachment issued and delivered to him against the property of the defendant, C. D., in the above-entitled action ; and, Whereas, F. P. claimed title to said vessel {or to said inter- est in said vessel), and appraisers were thereupon duly ap- pointed, who valued said vessel {or said interest) at the sum of dollars, and have duly returned said valuation to the ■ Court {or to Hon. A. O., judge of the Court) on the day of , 19 — , and thereupon the above-named plaintiff, A. B., gave an undertaking, as required by law, to prevent the discharge of said vessel from said at- tachment ; and, Whereas, the said attachment has been vacated and an- nulled (or has been discharged) as to the said vessel {or as to the said interest in said vessel) : Now, therefore, we, E. F., of (merchant), [and I. J.^ of (banker) ], do hereby, jointly and severally, undertake, promise and agree, to and with the said A. B., that we will indemnify, and save harmless, the said A. B., against all charges and expenses in consequence of this un- dertaking. E. F. I. J. (Acknowledgment, justification and approval as in form No. 14:5, page 223, ante.) ATTACHMENT. 759 The Undertaking. Form No. 430. Undertaking to be given by the Plaintiff in case of Attachment of Foreign Vessel to Prevent its Discharge. (Code Civ, Pro. § 668.) [Title.] Whereas, the {name of vessel) [or the {state interest) share or interest in the {name of vessel)], a vessel belonging to the port of , in the of , has been seized by 'K. N., sheriff of county, under a warrant of at- tachment, issued and delivered to him in the above-entitled action against the property of the defendant, C. D. ; and, Whereas, F. P., of , has claimed title to said (inter- est in said) vessel, and appraisers have been thereupon duly ap- pointed who have valued said (interest in said) vessel at the sum of dollars, and have duly returned said valua- tion to the Court {or to Hon. A. O., judge of the Court) on the day of , 19 — . Now, therefore, we, O. P., of (merchant), and I. M.j of '■ ; (farmer), do hereby, jointly and severally, undertake, promise and agree, to and with the said F. P., that we will pay such damages as may be recovered for seizing the said vessel {or for seizing the said share or interest in said vessel), in an action brought against the said sheriff or A. B., the plaintiff, in the attachment, within three months from the approval of this undertaking, if it appears therein that the vessel {or the said share or interest in said vessel) belonged, at the time of attaching it, to the said F. P. Dated , 19—. O.P. LM. {Acknowledgment, justifiGat/ion and approval as in form JVo. 145, page 223, ante.) 760 Bradbury's Lansing's forms and practice. The Undertaking. Form No. 431. Notice of Exception to Sufficiency of Sureties in Undertaking Given on Discharge of Attachment.* (Code Civ. Pro. § 690.) [Title.] SiE : Take notice, that the plaintiff excepts to the suffi- ciency of the sureties in the undertaking given by the defend- ant on the discharge of the attachment in the above-entitled action. Dated , 19—. J. K., Attorney for Plaintiff. {Office address.) To E. F., Attorney for Defendant, C. D. 1 See title Bonds and Undbbtakings, pp. 213 et seq. CHAPTER IX. AEEEST. ABTICLB I. Isr GBNBBAIi. II. When authoeized. A. Depending on the natube of the action. B. Depending on extbinsic facts. III. Exemptions. IV. Peoceedings to obtain oedbe. V. The oedee and peoceedings to execute it. VI. Vacating the oedbb. VII. BAIL. VIII. The xtndeetaking. I. IN GENEEAL. 1. In general. — Arrest^ is " The apprehension of a person by virtue of a lawful authority to answer the demand against him in a civil action." JBouvier, aeeest. Arrest in criminal actions is not discussed herein. It is a provisional remedy " which a plaintiff, in a proper case, may resort to before judgment, that the object of his action may not be defeated by the conduct of the defendant before he can obtain judgment." Sartwell v. Field, 68 N. Y. 341. The statute authorizing it is penal as well as remedial, and ought not to be extended by construction so as to em- brace cases not clearly within the statute. Hathaway v. John- son, 55 N. Y. 93. In a case under Code Civ. Pro. § 550, it is, it seems, " a substitute for the writ of ne exeat, which has beea abolished by the Code." Ensign v. Nelson, 21 Abb. N. C. 321 ; aff'd 112 N. T. 674. A matter of discretion. — Plaintiff has no absolute right to an order of arrest. Griswold v. Sweet, 49 How. Pr. 171 ; 1 For a statement of the principles governing cases wlicre the remedies of arrest, attachment and injunction, or any two of them, are sought in the same action, see p. 636, ante, under title Attachment. [761] 762 bbadbtjey's Lansing's forms and practice. In General. Knickerbocker Ins. Co. v. Ecclesine, 6 Abb. Pr. N. S. 9 ; aff'd 11 Abb. Pr. K S. 385 ; Sartwell ,v. Field, 68 N. Y. 341. But where the order has been granted, not refused, the Court of Appeals has held that, in favorem lihertatis, it would en- tertain appeal. Sartwell v. Field, 68 N. Y. 341. This deci- sion, however, was made prior to the adoption of the Consti- tution of 1895. Now, of course, an order of arrest would not be passed upon by the Court of Appeals unless certified up by the Appellate Division. 2, Who may obtain order. — An assignee by general assign- ment may obtain the arrest of a person if the assignor could have obtained it. Meyer v. Belden, 8 Wk. Dig. 344. The court, it seems, will scrutinize the proofs closely, when a non- resident comes into this jurisdiction, seeking to arrest a non- resident, under circumstances indicating a desire to subject him to unusual inconvenience. Hyer v. Ayres, 2 E. D. Smith, 211. One partner cannot arrest his copartner ; the very nature of a partnership forbids it. Smith v. Small, 54 Barb. 223. 3. Foreign judgment not a bar. — A foreign judgment, for the same cause of action, or for the value of property obtained by the fraud for which plaintifif sues, does not afifect the right to arrest. Code Civ. Pro. § 552. The real cause of action is not changed by recovering judgment on it when an action is brought on the judgment in another State. Huntington v. Attril, 146 U. S. 667, 683 ; Wisconsin v. Pelican Ins. Co., 127 U. S. 265. Under the doctrine of these decisions and the provisions of Code Civ. Pro. § 552, it would seem that where an action was brought on a foreign judgment the right to an order of arrest would be determined upon the nature of the original cause of action. 4:. Effect of order. — An order of arrest which has been granted by an officer having jurisdiction, protects parties from an action for false imprisonment. Bamberger v. Kahn, 43 Hun, 411. Even though the order has been subsequently ARREST. 763 When Authorized. vacated. Id.; Maries v. Townsend, 97 N. Y. 590. While an order of arrest, which has been vacated, may be the founda- tion of an action for malicious prosecution, as a personal in- jury, there must be facts practically showing an abuse of process to sustain the action, under the doctrine announced in late analogous cases. Burt v. Smith, 181 N. Y. 1. Unless the order is secured by false affidavits, or fraud, or deceit, it would almost seem, under the doctrine of the case last cited, that the granting of the order is in it?,Q\l jprima facie evidence of probable cause, which would defeat an action for malicious prosecution. Of course, however, the defendant may recover on the undertaking such legitimate damages as actually flow from the arrest, such as counsel fees and expenses in money to vacate the arrest, also for loss of time occasioned by the arrest and in getting bail and in moving for a discharge, to- gether with taxable costs. Bamberger v. Kahn, 43 Hun, 411. But such damages are not recovered as for a personal injury and a cause of action founded thereon may be assigned. Id. 5 . The law governing arrest is the lex fori. Smith v. Spin- oUa, 2 Johns. 198. II. WHEK ATJTHOEIZED. A. DEPENDING ON THE NATURE OF THE ACTION. B. DEPENDING ON EXTBINSIC FACTS. A. 1. Depending on thenatnre of tlie action. — A defend- ant may be arrested when the action is brought for any one of the following causes {Code Civ. Pro. % 549) : To recover a jme or penalty. — Code Civ. Pz-o. § 549, subd. 1. Arrest is proper if the action is to recover a penalty for sell- ing lottery tickets. Pech v. Lombard, 22 Hun, 63. But an action, under Rev. St., PL 1, c. 20, art. 4, §§ 25, 32, to re- cover moneys the plaintiff parted with at lottery, is not such an action. Stavh v. Myers, 16 App. Div. 476 ; 44 Supp. 954. Nor is an action under 1 Bev. St., c. 22, art. 3, § 14, to re- cover moneys lost at play. Tompkins v. Smith, 62 How. Pr. 764 Bradbury's Lansing's forms and practice. When Authorized. 499 ; aff'd 89 N. Y. 602. Nor is an action to recover a debt, under the statute making the trustees of an association liable for its debts if they fail to file reports. Glens Falls Paper Co. V. White, 58 How. 172 ; App. dism'd 81 K Y. 649. To recover damages for a personal injury. — Gode Giv. Pro. § 549, subd. 2. A " personal injury " includes libel, slander, criminal conversation, seduction and malicious prosecution ; also an assault, battery, false imprisonment or other action- able injury to the person either of the plaintiff, or of another. Code Civ. Pro. § 3343, subd. 9. An action for a separa- tion on the ground of cruel and inhuman treatment is such an action. Jamieson v. Ja/mieson, 11 Hun, 38 ; Schwartz v. Schwartz, 36 Misc. 487 ; 73 Supp. 935. Libel is such an action. Blakelee v. Buchanan, 44 How. Pr. 97. So is an action for the seduction of the plaintiff's daughter. Steinberg v. Lasher, 50 How. Pr. 432. So is negligence. Ritterman v. Ropes, 7 Civ. Pro. E. 392. . And the defendant need not be personally neg- ligent ; the negligence may be that of his servant. Ossmann V. Crowley, 101 App. Div. 597; 92 Supp. 29; Davids v. Brooklyn Heights R. R. Co., 104 App. Div. 23; 93 Supp. 285 ; aff'd 182 E". Y. 596. Arrest is proper, it would seem, in an action by a decedent's representatives, for negligent acts producing the injuries which caused decedent's death. People ex rel. Harris v. Gill,S^ App. Div. 192 ; 83 Supp. 135 ; aff'd 176 N. Y. 606. An action to recover for loss of articles in plaintiff's trunks may be in tort, for breach of the carrier's legal duty, or in assumpsit, on the implied promise raised by the duty ; if it is in tort, arrest is proper under this subdivi- sion. Catlin V. Adirondack Co., 81 K Y. 379. To recover damages for an injury to property, including the wrongful taking, detention or conversion of personal property. — Code Civ. Pro. § 549, subd. 2. An "injury to property" is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract. Code Civ. Pro. § 3343, subd. 10. Arrest would be warranted under this subdivision, it seems, in an action to recover for a trespass on real estate. Losaw v. Smith, 109 App. Div. 754 ; ARREST. 765 When Authorized. 96 Supp. 191. Arrest was granted in an action in conversion ; on appeal, Held, improper, for the act complained, of, the cut- ting down and carrying away of telegraph poles, was an act of trespass committed in another State, while, conceding that the poles could have been made the subject of conversion, they were not so made, being merely placed by the roadside. Am. Union Tel. Co. v. Middleton, 80 N. Y. 408. Arrest is proper under this provision in an action for boycotting. Old Dominion S. S. Co. v. McKenna, 18 Abb. N. C. 262. Breach of a promise to marry. — Code Civ. Pro. § 549, subd. 2. An order of arrest was granted in an action in 1887 to recover damages from a man for breach of contract to marry, but vacated on an affidavit by defendant admitting the prom- ise and renewing the offer. Bonn v. Block, 13 Civ. Pro. R. 276. In the N. Y. Common Pleas, in May, 1850, in an action by a man for breach of a promise to marry made by a woman, it was held that the woman could not be held to bail. The old Code of Procedure was then in force. Siefke V. Tajypey, 3 Code R. 23. Misconduct or neglect in office, or in aprofessional emjploy- raent. — Code Civ. Pro. § 549, subd. 2. It is misconduct " in a professional employment," if an attorney wrongfully fails to turn over money collected by him. Stage v. Stevens, 1 Denio, 267. It was held such " misconduct or neglect in office " by the Register of the City of New York where his employee, al- though without active fault on the part of the Register, made an incorrect search. Van Schaiclc v. Sigel, 9 Daly, 383. Fraud, or deceit. — Code Civ. Pro. §549, subd. 2. Where defendant made a fraudulent representation to plaintiff con- cerning his responsibility and property, by means of which plaintiff was induced to sell him property, this was held to be fraud, authorizing arrest. Zinn v. Ritterman, 2 Abb. N. 0. 261. One of a number of co-conspirators to defraud may be arrested as for the whole amount taken, for " each person engaged with others in the perpetration of a wrong, may be compelled to respond for the entire consequences of the injury done," People v. Tweed, 5 Hun, 382 ; App. dism'd 63 766 bbadburt's Lansing's foems and practice. When Authorized. N. Y. 202. The president of a corporation can be arrested in an action for fraud against hira, if he committed the fraud by which his corporation defrauded a creditor. Phillips v. Wortendyhe, 31 Hun, 192. To recover a chattel where it is alleged in the com/plmnt that the chattel or apart thereof has heen concealed, removed or dis- posed of so that it cannot he founder taken iy the sheriff and with intent that it should not he so found or taken, or to de- prive the plaintiff of the henefit thereof. — Code Civ. Pro. § 549, subd. 2. " An intent to put the property beyond the reach of the owner by selling it to a lona fide purchaser, when such a transaction would avail for the purpose, .... will authorize the order, although the fraudulent actor may not contemplate an action at law to recover the specific property." Barnett v. Selling, 70 IT. Y. 492. An order of arrest obtained under this subdivision will be vacated if instead of a positive allegation of the value of the books sought to be recovered, a paragraph of the complaint says that plaintiff has suffered $1,000 damages by reason of their being taken. Morton v. Chesley, 16 Misc. 172. An arrest, based on the nature of the ac- tion, is nowhere authorized, it seems, in an action to foreclose a lien upon personal property. Liederma/ti v. Povner, 82 App. Div. 541 ; 81 Supp. 606. An order of arrest against a property clerk of a city is not proper, where such clerk holds alleged sto- len articles and the owner thereof seeks to te,ke them by replevin papers and the clerk refuses to give them up. Simpson v. St. John, 93 N. Y. 363. Where arrest is granted, the plaintiff's right to a replevin is subject to the regulation that if the de- fendant has been arrested, pursuant to the order, a subsequent replevin cannot be made of a chattel, with respect to which the order was granted. Code Cim. Pro. % 1714. To recover for money received, or to recover pr'operty or dam- ages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was emheszled or fraudulently misapplied ly a public ojficer or hy an attorney, solicitor or counselor, or hy am, officer or agent of a corporation or hanking association in the course ARREST. 767 When Authorized. of his employment, or hy a factor, agent, hroker, or other per- son in a fiduciary capacity. — Code Civ. Pro. § 549, subd. 2. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action ; and a judgment for the defendant is not a bar to the new action to recover the money or chattel. Code Civ. Pro. % 549, subd. 2. The words " in a fiduciary capacity " qualify all the persons described. Decatwr v. Goodrich, 44 Hun, 3. A county treas- urer, receiving moneys and converting them to his own use, can be arrested in accordance with this provision. People v. Clark, 45 How. Pr. 12. So can defendants who were intrusted with the invoices and bills of lading in connection with the sale of sugar and whom plaintiff sues for collecting proceeds and keeping the same ; the defendants were factors. Stand- ard Sugar Refinery v. Dayton, 70 IST. Y. 486. But if defend- ant received the money merely as agent, arrest is not proper. Decatur v. Goodrich, 44 Hun, 3. Where the complaint charged that an attorney converted money collected for his clients, and this conversion was proved, it was held that arrest was proper. Sherman v. Grinnell, 159 N. Y. 50. The order was held proper in an action against an insurance agent, to recover balances due from him, under the Insurance Law, L. 1873, 0. 688, (§ 38, Insurance Law, as am'd to and including 1906) making such an agent " responsible in a trust or fiduciary capacity for any moneys received by him for such company." Albany Ins. Co. v. McAllister, 11 Supp. 295. The court, in determining whether a complaint was in tort or on contract, decided it was in tort, and that the purpose of allegations that moneys were received by the defendant in a fiduciary capacity and embezzled was to enable the plaintiff to cause the defendant's arrest ; the allegations were not to be considered surplusage, the court declared, nor was the prayer for judgment controlling in deciding whether the complaint was in tort or on contract. Frich v. Freudenthal, 45 Misc. 348 ; 90 Supp. 345. To recover moneys, funds, or property held or owned ly the State, or held or owned officially or otherwise for or in lehalf 768 Bradbury's Lansing's forms and practice. When Authorized. of a public or governmental interest by a municipal or other ptiblic corporation, board, officer, oustodiam, agency, or agent, of the State or of a city, county, town, village, or other divi- sion, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of. — Code Qiv. Pro. § 549, subd. 3. A County Treas- urer, being a public officer, can be arrested for conversion under this provision. People v. GlarTi, 45 Hovy. Pr. 12. But in an action by the People, to declare property, in the possession of the defendant, forfeited to the State, because offered for dis- tribution by the defendant in violation of the lottery statutes, arrest is not proper. People v. Phillips, 30 Hun, 553 ; App. dism'd 101 N. Y. 639. To recover damages for the obtaining, receiving, paying, con- verting, or disposing of, moneys owned by the State, etc. Code Civ. Pro. § 549, subd. 3. In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has, since the mahing of the contract, or in contemplation of mahing of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with liTce intent. Code Ciro. Pro. § 549, subd. 4. Where such allegation is made, the plaintiff cannot re- cover unless he proves the fraud on the trial of the action ; and a judgment for the defendant is not a bar to a new ac- tion to recover upon the contract only. Code Civ. Pro. § 549, subd. 4. Subd. 4 " classifies an action to recover a debt in- duced by fraud as an action on contract. The allegation of fraud is essential only for the purpose of obtaining an order of arrest or body execution." Frey v. Torrey, 70 App. Div. 166 ; 75 Supp. 40 ; aff'd (on other points) 175 N. T. 501. " It was clearly the intention of the legislature by its last amendment of § 549, to require a plaintiff, intending to arrest the defendant, to predicate his action upon some ground of vs^rongdoing mentioned in the statute, as a substantive part of the cause of AKREST. 769 When Authorized. action, so that he could defend himself before a jury and re- cover costs if such defense was successful." Moffatt v. Ful- ton, 132 N. Y. 507. There must be " some evidence tending to establish the existence of a fraudulent intent on the part of the defendant in the creation of the debt." Morris v. Tal- cott, 96 IsT. Y. 100. And this fraud must be actual. For in- stance, in an action against a principal, to recover the purchase price of property, sold to his agent, if the agent perpetrated fraud on the vendor but the principal neither authorized nor ratified the fraud, arrest of the principal is not proper ; the fraud of the principal is legal or constructive, not moral and actual. Hathaway v. Johnson, 55 IST. Y. 93. A firm owed $300,000, and had assets of $350,000 ; it in- corporated with a capital of $125,000, $121,000 of which was issued to the firm in exchange for the assets ; the firm then offered this stock to creditors, as payment or collateral secu- rity ; one of the creditors refused to accept the proposition, sued, and obtained an order of arrest ; Held, improper, for there was no evidence of fraud or intention to defraud. Kess- ler V. Levy, 11 Misc. 275 ; 32 Supp. 260 ; aff'd 147 N. Y. 700. The fact that, in violation of L. 1902, o. 528, defendant dis- posed of his entire stock of merchandise in bulk without giv- ing notice to his creditors is not, in itself, sufficient to show the intent to defraud creditors ; legal or constructive fraud is not enough. Mann v. Ghrestopulos, 87 App. Div. 222 ; 84 Supp. 372. The case of a banker, so far as the law of arrest is con- cerned, is not like that of a trader who has become embarrassed ; the trader, who has reasonable hopes of retrieving his fortunes, " may buy goods on credit, making no false representations, without the necessary imputation of dishonesty." Anonymous, 67 JSr. Y. 598. B. 2. Depending on extrinsic facts. — A defendant may also be arrested in an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the State, or, being Vol. 1—49 770 bkadbuby's Lansing's forms and practice. When Authorized. a resident, is about to depart therefrom, by reason of which nonresidence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. Code Civ. Pro. % 550. It is this section which is a substitute for the writ of ne exeat. Ensign v. NeUon, 49 Hun, 215 ; aff'd 112 K T. 674. The term judgment, in this section, includes either an inter- locutory or final determination. Gode Civ. Pro. § 1200 ; JEn- sign V. Nelson, 49 Hun, 215 ; aff'd 112 IST. Y. 674. Granted only ly court. — In a case specified in this section the order can be granted only by the court, is always in its discretion, and may be granted or served, either before or after final judgment, unless an appeal from the judgment is pend- ing, upon which security has been given, sufiicient to stay the execution thereof. Code Civ. Pro. § 551. In the First Judi- cial District, however, this order can be granted by a judge out of court. Code Civ. Pro. § 770 ; Boucioault v. Boucicault, 21 Plun, 431. In an action for an accounting, the defendant can be re- quired to file an account of the transactions of the firm, and, on failure to do so, can be punished for contempt ; hence, ar- rest is proper. Ensign v. Nelson, 49 Hun, 215 ; aff'd 112 N. Y. 674. Alimony. — Arrest is proper in an action for alimony, it being shown that defendant intends to leave the State. Pen- ton V. Denton, 1 Johns. Ch. 441 ; Forrest v. Forrest, 5 How. Pr. 125. Divorce. — Arrest is proper where plaintiff is suing defend- ant for a divorce on the ground of adultery, and shows that defendant is about to leave the State with no intention of permanent return. Boucicault v. Boucicault, 21 Hun, 431. A foreign ad^ninistrator cax\. he arrested, at the suit of the next of kin, for a breach of trust. MoNamara v. Dwyer, 7 Paige, 239. Residence. — A man's residence is the place where he votes and is taxed. Houghton v. Ault, 16 How. Pr. 77 ; aff'd 16 How. Pr. 87n. Bona fide and permanent intent governs. ARREST. 771 When Authorized. Vischer v. Vischer, 12 Barb. 640. A " resident " has been de- fined as one " dwelling, or having his abode in any place," and as meaning the same thing as " inhabitant." lioosevelt v. Kel- logg, 20 Johns. 208. A foreigner, in this State on a commer- cial adventure, and without any idea of settling here, could be arrested, it would seem, as a nonresident. Matter of Fitz- gerald, 2 Caines, 317. 3. If there are several causes of action. — The order of arrest is presumed to be founded upon the whole complaint, and if the complaint contains causes of action for which the defendant is not liable to arrest, an order of arrest is not proper. McGoveriiY. Payn, 32 Barb. 83; Smith v. Knapp, 30 N. Y. 581 ; Madge v. Puig, 71 JST. Y. 608 ; Holland Coffee Co. V. Johnson, 38 Misc. 187; 77 Supp. 247 ; Decatur v. Goodrich, 44 Hun, 3 ; People v. Clarh, 45 liow. Pr. 12. For example, where a party has two claims against another, arising on con- tract, one of which has arisen in a fiduciary capacity and the other is such that arrest is not proper, plaintiff is not entitled to an order of arrest if he is seeking to enforce both claims in one action. Zamhert v. Snoto, 17 How. Pr. 517. Arrest is not proper in an action for a balance of a running account made up in great part of items entirely untainted with fraud, although fraud is alleged as to a number of the other items. Toffey v. Williams, 5 T. & C. 294. But where a complaint at first con- tained one cause of action in which arrest was proper, and one in which it was improper, and the defendant demurred to the complaint and did not move to vacate the order, and the plain- tiff thereupon amended the complaint, omitting the cause of action in which arrest was improper, it was held that the or- der should not, thereafter, be vacated ; because the service of the amended pleading superseded the old pleading. Lewis v. Pollack, 85 App. Div. 577 ; 83 Supp. 287. Equitable and legal relief ioth ashed. — If the main object is to cancel a contract on the ground of fraud, damages for the fraud being asked incidentally, an order of arrest is improper. Ely V. Steigler, 9 Abb. Pr. JST. S, 35. But if the main object 772 beadbury's Lansing's foems and peacticb. When Authorized. is to recover damages for the fraud, although other relief is demanded in the prayer for judgment, an order of arrest may be granted. Redficld v. Frear, 9 Abb. Pr. IST. S. 449. Limitation of this principle. — However, the general prin- ciple, that the order will not be sustained if it fails to be jus- tified as to one or more of a number of causes of action, is not applicable unless these separate causes of action are of differ- ent classes. (Several causes of action for slander.) Grandall Y. Jacob, 22 App. Div. 400 ; 48 Supp. 279. That part of a complaint which demands interest does not constitute a second distinct cause of action, and the principle is not applicable. People V. Clark, 45 How. Pr. 12. If the right to arrest depends on the existence of extrinsic facts, it seems that where there are several causes of action and the extrinsic facts fail as to any one cause of action, the whole order of arrest must fall. Fitch v. McMahon, 3 St. Kep. 147. However, in a replevin case, where plaintiff sought to recover bales of tobacco, and a check, and an order of arrest had been issued (under Code Pro. % 179, subd. 3), on the ground of fraudulent representations made both as to the tobacco and the check, the court, considering the affidavits sufficient as to the tobacco but insufficient as to the check, re- duced the amount, in the order of arrest, to the sum represented by the tobacco. Barnett v. Selling, 70 E". Y. 492. 4. In justices' courts, the order can be granted only when the action is brought either (1) to recover a fine or penalty ; or (2) to recover damages for a personal injury, of which a justice of the peace has jurisdiction ; an injury to property, including the wrongful taking, detention, or conversion of per- sonal property ; misconduct or neglect in office, or in a pro- fessional employment ; fraud, or deceit [not, however, a claim for damages in an action to recover a chattel] ; or (3) to re- cover for money received, or to recover a chattel ; where it ap- pears that the money was received, or that the chattel was embezzled or fraudulently misapplied, by a public officer, or by an attorney, solicitor or counselor, or by an officer or agent ARREST. 773 Exemptions. of a corporatiou or banking association, in the course of his employment ; or by a factor, agent, broker, or other person in a fiduciary capacity ; in addition to which it must be shown either (1) that the defendant to be arrested is not a resident of the county ; or (2) that the plaintiff is not a resident of the county, or, if there are two or more plaintiffs, that all are nonresidents thereof ; or (3) that the defendant is about to depart from the county, with intent not to return thereto. Code Civ. Pro. §§ 2894, 2895. 6. In the Municipal Courts, New York City, the order may be granted (1) in an action for recovery of damages, in a cause of action not arising on contract, when the defendant is not a resident of the City of New York, or is about to re- move therefrom, or when the action is for a willful injury to person or property ; or, (2) in an action for a fine or penalty, or for money or property embezzled or wrongfully misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person acting in a fiduciary capacity ; or (3) where the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or con- version of which the action is brought ; [debt, under 3, how- ever, must be over $100, above set-offs] ; or (4) when the de- fendant has removed, concealed or disposed of his property, or is about to do so, with the intent to defraud his creditors ; [demand, above all set-offs, must exceed $100] ; or (5) when an arrest is authorized by special statute, in an action for a fine or penalty, or for a willful violation of duty ; or (6) when the action is for the recovery of a fine or penalty under the ordinances or by-laws of the City of New York. Munic. Court Act, % 56. III. EXEMPTIONS. (See forms Nos. 453 and 454.) 1. Who entitled. — Court officer. — An officer of a court of record is privileged from arrest, during the actual sitting which 774 Bradbury's Lansing's forms and practice. Exemptions. he is required to attend, of a term of the court of which he is an officer, and no longer. Code Gim. Pro. § 565. But an at- torney or counselor is not thus privileged, unless he is em- ployed in a cause to be heard at that term. Id. Diplomatists. — A minister to this country is exempt, as are his servants. U. S. Eev. St. § 4063. Execioto7\ administrator, etc. — A person prosecuted in a rep- resentative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, is exempt, except for his personal act. Code Civ. Pro. § 555. Under this section a plaintiff -administrator, it would seem, prosecuting in a repre- sentative capacity, might be arrested on a judgment for costs, in an action which he brought for negligence resulting in the death of the intestate. Davids v. BrooHyn Heights R. P. Co., 45 Misc. 208 ; 92 Supp. 229 ; rev'd (on other points) 104 App. Div. 23 ; 93 Supp. 285. Extradited person. — A person brought into the jurisdiction by extradition can be arrested civilly, for an offense other than that for which he was given up, although the court seems to think that the contrary rule would be juster. Adriance v. Lagrave, 59 N. Y. 110. A contrary rule has been announced vrhere the second arrest "was for a crime. Matter of Browne (Hough, J., U. S. Cir. Ct.), IST. Y. Law J., Sept. 12, 1906. Where a defendant was arrested here for a crime committed in Canada, the arrest being " for the purpose of coercing him into a compromise or adjustment of the plaintiff's demand," and this proved ineffectual, and the defendant was detained, and arrested civilly, it was held that a clear abuse of law had been committed and the arrest was set aside. Benninghoff v. Oswell, 37 How. Pr. 235. Lunatic, idiot, etc. — A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose. Code Civ. Pro. §554. ARREST. 775 Exemptions. Partner. — A partner is exempt in an action for fraud brought against his firm, unless it is shown that he took part individually in the fraud. Bacon v. Kendall, 49 Super. 123 ; Hathaway v. Johnson, 55 IST. Y. 93 ; Scott v. Heed, 8 Civ. Pro. R. 269. And where one partner, learning that his part- ner had transferred property to his wife without considera- tion, the firm having suffered losses, withdrew money from the firm, this was held not enough, on the part of the first partner, to warrant his arrest for fraud. Scott v. Reed, 8 Civ. Pro. E. 269. Soldier. — State militiamen are privileged while on duty. L. 1870, G. 80, § 257. This includes an officer of a militia regi- ment which is temporarily in the United States service. People V. Campbell, 40 IST. Y. 133. So are United States en- listed men, during their term of service. TJ. S. Rev. Stat. § 1237. And marines, while enlisted. U. S. Rev. Stat. § 1610. Suitors are privileged while going to, attending at, or re- turning from court. Lucas v. Albee, 1 Den. 666 ; Mackay v. Lewis, 7 Hun, 83. Tricked person. — A trick or pretense will fail; and the question whether the procedure used to get a defendant within the jurisdiction is a trick depends upon the legality of the act, not the personal convictions of the actors regarding it. Smith V. Meyres, 1 T. & C. 665. Witness. — Both resident and nonresident witnesses are ex- empt from arrest. FrislieY. Young, 11 Hun, iH^; Lucas y. AWee, 1 Den. 666 ; JSForris v. Beach, 2 Johns. 293. The priv- ilege of a w^itness is absolute, and he must be discharged with- out being required to file bail. Sanford v. Chase, 3 Cow. 381. Woman. — A woman is exempt, except in a case where the order can be granted only by the court; or where it appears that the action is to recover damages , for a willful injury to person, character, or property. Code Civ. Pro. % 553. In the Municipal Court of New York, no woman can be arrested ex- cept for willful injury to person or property. Munic. Ct. Act, § 56. And in Justices' Courts, the order cannot be granted, if the defendant is a woman. Code Civ. Pro. § 2894. Code Civ. 776 bradbuey's Lansing's forms And practice. Exemptions. Pro. % 553, it seems, relieves a woman from arrest if, as plain- tiff, she is taxed in costs ; or if she is defendant in an action for breach of contract to marry, or an action for appropriat- ing money received as agent or in a fiduciary capacity, or, doubtless, in many slander and libel actions. Lasche v. Dear- ing, 23 Misc. 722 ; 53 Supp. 58. By " willful injury " is not meant mere negligence, nor constructive injuries, nor acci- dental consequences. Duncan v. Katen, 6 Hun, 1 ; aff'd 64 N. Y. 625. A woman commits " willful injury " if she wrong- fully receives and converts gold certificates which she knows to be stolen. Id. It is "injury" although no physical in- jury is done to the paper on which the gold certificates are printed. Id. So, the injury is "willful" if she buys laces, stolen from plaintiff, with knowledge that they were stolen. Muser v. Miller, 49 Super. 458. But the act is not " will- ful " if plaintiff gives authority to the defendant to do it ; and where a woman removes certain fixtures in the house she leases, but swears the lessor and the' receiver gave her au- thority, and this is not denied by them, she is privileged from arrest. Hayes v. Beard, 13 Supp. 692 ; aff'd 131 N. Y. 575. In Mv/nidpal Courts and Justices' Courts. — Privilege from arrest is in most instances the same in the Municipal Courts of New York and in the Justices' Courts, as given in the Code. Runic. Court Act, % 69 ; Code Civ. Pro. % 2904. 2. Waiver of exemption — " The exemption from arrest is a personal privilege which can be waived, and the waiver is complete, when the party or witness fails to claim it at once, and does some act in the cause in reference to his appear- ance or defense." Petrie v. Fitzgerald, 1 Daly, 401. It is waiver if defendant, subpoenaed as a witness, and actually un- der examination, asserts no privilege, but gives bail. Stewart V. Howard, 15 Barb. 26. 3. Remedy for violation of exemption. — A privileged per- son is entitled to be discharged from arrest, where other pro- AEKEST. 777 Proceedings to Obtain Order. vision is not made therefor by law, by the court, or a judge thereof ; or by the county judge of the county where the ar- rest was made. The order must be made, upon proof, by affi- davit, of the facts entitling the applicant to the discharge ; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both. Qode Oiv. Fro. % 564. The remedy is not by habeas corpus, for a defendant, arrested civilly, is not in the actual custody of the sheriff ; the remedy is discharge upon a summary application, ex parte. Matter of Lampert, 21 Hun, 154. IV. PEOCEEDINGS TO OBTAIN OEDEE.^ FORMS. NO. PAGE. 435. Affidavit to obtain order of arrest, where right depends upon the nature of the action. General form 784. 436. Affidavit, where right depends partly on extrinsic facts. Gen- eral form 786. 437. Complaint by foreign corporation. Conversion 787. 438. Affidavit. Conversion of money received in a fiduciary capacity 788. 439. Affidavits. Conversion of money received in a fiduciary capac- ity. Another form 790. 440. Complaint and affidavits. Conversion, by indorsing another's stock certificate 793. 441. Allegations in complaint. Conversion 795. 442. Affidavits. Conversion of funds given defendant for another purpose 796. 443. Affidavit. Personal injury, cruelty, in action for limited divorce 799. 444. Complaint and affidavits. Slander 802. 445. Complaint and affidavit. Fraud 803. 446. Complaint and affidavits. Fraud with reference to the owner- ship of a judgment 806. 447. Affidavit. Fraud in contracting a liability 809. 448. Complaint and affidavits. Fraud and deceit in forming partner- ship 812. 449. Allegations in complaint. Action for willful injury to property, defendant being a woman 815. 450. Allegations in complaint. Action for a personal injury, aliena- tion of wife's affections 816. iSee also article The Undertaking, herein, post. 778 bradbxjry's Lansing's forms and practice. Proceedings to Obtain Order. PAGE. 451. Affidavit. Nonresidence 817. 452. Affidavits. Concealment of chattel 818. 453. Affidavit to procure discharge of privileged. person from arrest. . . 821. 454. Order discharging privileged person from arrest 822. 1. In general. — In obtaining the order a party is held to strict practice. Brown v. Coleman, 95 App. Div. 545 ; 89 Supp. 42Y. And the statutes with reference to the subject ought not to be extended by construction. Hathaway v. Johison, 55 IST. Y. 93. For " the liberty of the citizen is of quite as much importance as the preservation or security of his property." Southern, etc., Navigation Co. v. Sherwin, 1 Civ. Pro. K. 44. 3. From whom obtained.— The order of arrest, if author- ized under Code Civ. Pro. § 549/ must be obtained from a judge of the court in which the action is brought, or from any county judge. Code Civ. Pro. § 556. If authorized under § 550,^ it can be granted only by the court and is always in its discretion. Code Civ. Pro. § 551. In the First Judicial District, however, this order can be granted by a judge out of court. Code Civ. Pro. § 770 ; Boucicault v. Boucicault, 21 Hun, 431. See, however, the special term rules of the first department specifying where motions and ex parte applica- tions may be heard. 3. When obtained. — The order may be granted at any time after the commencement of the action.' It may also be granted to accompany the summons, but at any time after the filing or service of the complaint, the order must be va- cated on motion, if the complaint fails to set forth a sufficient cause of action, as required by Code Civ. Pro. § 549 ; but where the order is applied for after the filing or service of the com- plaint, the court before granting the same may without no- iSee article When Atjthorizbd, p. 763 et seq., ante. 2 See article When Authorized, p. 763 et seq., ante. 3 See, also, as to when order can be obtained, p. 770, ante. AREEST. 779 Proceedings to Obtain Order. tice direct the service of an amended complaint so as to con- form to the allegations required in Gode Civ. Pro. § 549, subds. 2 and 4. Code Civ. Pro. § 558. The order may be granted at any time before final judgment. Code Civ. Pro. % 551. Even if plaintiff waits until nearly a year after the verdict, but be- fore judgment, he may have the order. Wasserman v. Ben- jamin, 88 App. Div. 1 ; 84 Supp. 489. 4. What applicant must show. — The facts which entitle the plaintiff to the order should if possible be shown by a verified complaint, together with affidavits ; all the causes of action being alleged positively and not upon information and belief. Less complete proof will, however, be accepted. Code Civ. Pro. § 557. A verified complaint, with affidavits, may be regarded as an affidavit. Palmer v. Hussey, 59 N. Y. 647. It is not necessary that a complaint should be submitted at the time of applying for the order, nor that the contents of the complaint should be stated in an affidavit, nor that the complaint should be in existence. Code Oa). Pro. % 557 ; Hall V. Conger, 7 Civ. Pro. E. 53. Satisfactory affidavits may make out a complete case. Leiois v. Pollack, 85 App. Div. 577 ; 83 Supp. 287. But if the complaint is served it must set forth a cause of action, showing the case to be within Code Civ.- Pro. §549. Id. And if the complaint is submit- ted, the order should be refused if the statements in the complaint are inconsistent with material allegations in the affidavit. Wicker v. Harmon, '21 How. Pr. 462. If the affi- davits show a complete cause of action and ground of arrest, the service of a complaint with a defective verification, mak- ing it, in effect, an unverified pleading, does not affect the right to the order. Voorhees Rubber Mfg. Co. v. McEwen, 111 App. Div. 541 ; 97 Supp. 942. Degree of proof necessary. — " It is not essential .... that the facts should be stated with such definite accuracy as is required in a pleading." Crandall v. Jacob, 22 App. Div. 400 ; 48 Supp. 279. " In granting provisional remedies courts do not proceed upon the technical rules of evidence regulating 780 beadbury's Lansing's poems and peactice. Proceedings to Obtain Order. the final determination of the rights of parties on a trial. They allow affidavit evidence ; they dispense with cross-exam- ination; they are content with, prima facie 'prooL" Globe Tarn Mills v. Billhrough, 2 Misc. 100 ; 21 Supp. 2. Although an essential fact is not directly stated, if it is clearly to be inferred from various circumstances in a case, that is suffi- cient. Meyer v. Beldeii, 8 Week. Dig. 344. But the rule that statements upon information and belief [not satisfactorily supported]' are not evidence of anything, applies. Ba/)iqvs Agrioole of Roumanian. Ungureanu, 53 App. Div. 254; 65 Supp. 892. Where the affidavit was on information and be- lief, the source of information being a cablegram, addressed to the affiant, the German consul, signed " Acting German Consul Struve," which was set forth at length, this was held insufficient, for it w^as not alleged that Strave had any knowl- edge of the facts he stated, nor did the cablegram purport to come from an official source. Banque Agrioole of Bou- mania v. Ungureanu, 53 App. Div. 254 ; 65 Supp. 892. The rule that a reasonably clear case must appear, to author- ize the order, applies where a doubtful question of law is pre- sented. Cormier v. Hawltins, 69 N. Y. 188. Applying this principle, the court refused the order where the action was for deceit alleged to have been practiced by the defendant in justifying on an undertaking, although the plaintiff previously had recovered a judgment on the undertaking. Id. Omission of essential papers. — Deductions made by an affi- ant from papers which he fails to produce have no probative force. Bv/rns v. Boland, 70 App. Div. 555 ; 75 Supp. 700. If plaintiff alleges that the defendant as its salesman collected, and failed to turn over, an amount due from a customer, but the customer's affidavit is not annexed, and no explanation for this is given, the omission is fatal. Holland Coffee Co. v. John- son, 38 Misc. 187 ; 77 Supp. 247. If foreign corporation applies. — Upon an application by a 1 See p. 648, ante, for a discussion of information and belief affidavits. In general, the principles governing this point are tlie same in Arrest as in Attachment. AKREST. 781 Proceedings to Obtain Order. foreign corporation doing business in this State for an order of arrest, it is not necessary for the papers to show that the cor- poration has complied with the provisions of L. 1896, c. 908, § 181 (imposing restrictions on the right of certain foreign corporations to do business in this State), or that it comes within the exceptions thereto. This defense is an aflBrmative one. C. E. Parmele Go. v. Haas, 111 N. T. 5Y9. But see § 15 Gen. Gorp. L. Bail. — The affidavit may contain any statement, tending to determine the amount of bail to be required. Gode Giv. Pro. §557. Name of defendant. — The affidavit need not contain the name of the party. If unknown he may be designated as " the real defendant," etc. Pindar v. Black, 2 Code E. 53. 5. Where right depends on cause of action. — Under Gode Giv. Pro. § 549, it must appear by the affidavit of the plaintiff or any other person that a sufficient cause of action exists against the defendant, as prescribed in that section. Gode Giv. Pro. § 557. It must be clearly shown to the judge that one of the causes of action specified in § 549 exists, the proof presented being carefully examined by the judge and the application being disposed of according to the just pre- ponderance of the proof. Gorwin v. Freeland, 6 N. Y. 560 ; Levy V. Bernhard, 2 App. Div. 336 ; 37 Supp. 849 ; Stromherg y. MaisUr, 34 Misc. 810; 68 Supp. 392. "Before granting provisional relief of such drastic character .... the court must be judicially satisfied that a sufficient cause of action, prima facie, exists." Diad v. Sldhley, 49 Misc. 315 ; 99 Supp. 188. A statement of facts is wanted, not the affiant's conclu- sions. Id. Gonversion. — -When the action is for conversion, the affidavit must contain facts sufficiently detailed to enable the court to determine what is the true value of the articles. Barnes v. Goss, 98 App. Div. 1 ; 90 Supp. 140. If facts are stated which, if uncontradicted, would entitle the plaintiff to go to a jury upon the question of conversion, the order should be granted. 782 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. Woodlridge v. Nelson, 13 Hun, 390. But the papers used for obtaining arrest are insufficient, it seems, if neither the com- plaint nor the affidavit contains any statement which, except by inference, avers that the defendant entered into possession of the personal property for the conversion of which action is brought. Barnes v. Ooss, 98 App. Div. 1 ; 90 Supp. 14.0. Fraud. — Allegations by a subscriber to a commercial agency that he received a report of fraudulent statements made by the defendant to a reporter of the agency, are insufficient in the absence of an affidavit by the reporter, to sustain an order of arrest. The case is within Hoormann v. Climax Cycle Co., 9 App. Div. 579 ; 41 Supp. YIO ; which holds that averments of facts as upon personal knowledge are not enough, unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he alleges. Price v. Levy, 93 App. Div. 274 ; 87 Supp. 740. Nor are affidavits in an action for fraud suffi- cient if they do not show a distinct fraudulent representation made by the defendant, the reliance upon which has caused the plaintiff injury ; especially are they insufficient if the alleged fraudulent representations are stated to have been made by defendant's agent, without showing that the person making the representations was in fact the agent of the defendant. Ellson V. Hance, 44 App. Div. 296 ; 60 Supp. 705. Malicious prosecution. — In an action for this tort the affi- davits must clearly show malice and absence of probable cause. Diad v. ShiUey, 49 Misc. 315 ; 99 Supp. 188. The determina- tion in favor of the accused person of the criminal prosecution against him is not, per se, prima facie evidence of the want of probable cause. Id. ; Vanderhilt v. Mathis, 5 Duer, 304. 6. Where right depends on extrinsic facts. — Under Code Civ. Pro. § 550, it must appear by the affidavit of the plaintiff or any other person that a sufficient cause of action exists against the defendant, as prescribed in that section, and the other matters, extrinsic to the cause of action, specified in that ARREST. 783 Proceedings to Obtain Order. section, must be shown in the same way. Code Civ. Pro. §557. About to depart. — Fears on this point are not sufficient, and where, in a divorce action, ne exeat was sought, but the defend- ant had made ample provision for his wife, had caused money to be paid to her punctually, and had made no threat to with- draw support, the writ was vacated. Forrest v. Forrest., 5 How. Pr. 125. Ne exeat " was never granted except upon proof, or at least a probable presumption, that the defend- ant was about to leave the State." Brown v. Haff, 5 Paige, 235. Disposal of property. — To authorize the order on the ground that the defendant is about to dispose of his property with in- tent to defraud his creditors, there must be legal evidence tend- ing to convict the defendant of this charge. It is for the judge to decide as to the weight and conclusiveness of such evidence. Coxirter v. McNamara., 9 How. Pr. 255 ; Moller v. Aznar, 11 Abb. Pr. (]Sr. S.) 233. It is not enough, of itself, that the affi- davit follows the words of the statute as to secreting prop- erty ; that is a fact to be shown. Frost v. Willard, 9 Barb. 440. Nonresidence. — That defendant has a place of business in New York does not make him a resident. Wallace v. Castle, 68 IS.. Y. 370. Although a man spends the whole of practi- cally every business day in New York, and owns no real estate and is engaged in no business in the adjoining State where he and his family live, and the choice of a dwelling house in this adjoining State is solely on account of convenience and econ- omy, nevertheless he is a nonresident of New York State. Barry v. BooJcover, 6 Abb. Pr. 374. An emigrant, just landed, with no permanent residence, is not a nonresident. Heiden- hach V. Sohlamd, 10 How. Pr. 477. There are a number of oc- cupations by entering which a person neither gains a residence nor loses it. A student at college falls within this rule. Matter of Goodman, 146 N. Y. 284. So does an unmarried sailor. His residence is the place where his domicile was fixed when he first went to sea. Matter of Scott, 1 Daly, 634. If 784 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. married his residence is where his family dwell. Id. The same rule, in general, applies to soldiers. A volunteer in the War of the Rebellion did not become a nonresident, it was held, when he left the State with his regiment. Tibhetts v. Towmend, 15 Abb. Pr. 221. Form No. 435. Afiidavit to Obtain Order of Arrest, Where Right Depends on the Nature of the Action. General Form. (Code Civ. Pro. §§549, 557.) [Title of action.] . State of New York, ) . County of j First. A. B., being duly sworn, says that he is the plaintiff ^ in the above-entitled action (or, that he is the A. B. above named as one of the plaintiffs herein, and is associated with C. D. above named as plaintiff^). Second. That said action has been commenced by the ser- vice of a summons therein personally upon the defendant, C. D. {or that said action has been commenced by the issuing of a summons therein to accompany this application). Third. That said action is brought, and that a sufficient cause of action exists, in behalf of the plaintiff and against the defendant, as prescribed in Subd. 2 of Section 549 of the Code of Civil Procedure of the State of New York, to wit, to recover damages for a personal injury, viz., libel {or stating in like 1 The affidavit may be made by the plaintiff, or any other person. Code Civ. Pro. § 557. 2 In arrest, although the plaintiff is a foreign corporation, it need not set forth in the affidavit compliance with the provisions of L. 1896, c, 908, § 181, which make it necessary to pay a license fee before beginning business in this State. C. R. Parmele Co. v. Haas, 171 N. Y. 579. See Form No. 437, post. ARREST. 785 Proceedinss to Obtain Order. manner any of the other causes of action or other grounds of arrest enumerated in Code Civ. Pro. §§549, 550. Where any of the material foxts are stated upon information and belief, add affi- davit of informant or account for its absence.^ Fourth. The cause of action herein arose out of the following facts: (here state concisely the facts out of which the cau^e of action arose, as to which see pp. 763 et seq.). Fifth. That deponent is fully entitled, as he believes, to recover damages from the defendant, for the aforesaid injury {or other cause) to the amount of .dollars. Sixth. That no previous application for a warrant of arrest has been made. [// a previous application has been made, state it, su£h as the following: ^ On the day of , 19 — , I applied for an order of arrest to the late Justice G. H. upon an affidavit of which the foregoing is almost an exact copy, and Justice G. H. granted said order of arrest directed to the Sheriff of County in which county Reformatory is situated, directing the said Sheriff to arrest defendant and hold him to bail in the sum of $ . Said order of arrest was never executed by the Sheriff of County. I have this day obtained an order vacating the previous order of arrest, since on account of the death of Justice G. H. the same cannot be, in the opinion of plaintiff's counsel, altered by addressing it to the Sheriff of County in place of the Sheriff of County. With the exception of the said order of , 19 — , which, as before stated, was never executed, no previous ap- plication was ever made for any order of arrest in this action.] A. B. Sworn to, etc. 1 See paragraph 2, ante, p. 648, especially note on Affidavit on Informa- tion and Belief. 2 From C. R. Parmele Co. v. Haas, 171 N. Y. 579, in which the order was upheld. Vol. 1—50 786 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. Form No. 436. Affidavit to Obtain Order Where Right Depends Partly on Extrinsic Facts. General Form. (Code Civ. Pro. §§550, 557.) [As in Form No. 435, svi>stituting the following for Paragraphs Third and Fourth therein.] Third. In an action for divorce ^ the affidavit of the plaintiff stated that she was wholly without income or means of support; that she had five children, three of whom were minors; and con- tinued as follows: That this action is brought to obtain a divorce from the de- fendant by reason of such adultery; that the defendant is about to depart from this State, and that he has, as deponent is informed and believes,^ no present intention of returning to this State, except possibly to pass through it; that it is an- nounced that his engagement as an actor at Theatre in this city will close this evening, and that he is annotmced to appear in one of the theatres in in the State of Maryland on evening next and that he is to sail for Europe on the • day of , 19 — , to be gone indefinitely. . . . Deponent further says that the judgment to be sought in this action is a judgment of divorce in favor of this deponent with an order or decree adjudging the payment to her of an adequate sum annually for her maintenance and support, such sum to be such as is suitable to her station in life and to the defendant's means and income, and further adjudging to her the custody and control of her said children and forbidding defendant to interfere with such custody and control, but re- quiring him to pay a proper and adequate sum for their educa- 1 From BoucicauU v. BoucicauU, 21 Hun, 431, in which the order was sustained. 2 See note on Affidavits on Information and Belief, ante, p. 648. AKREST. 787 Proceedings to Obtain Order. tion and support; and that there is danger that by reason of the departure from the State of the defendant and his con- tinued absence the judgment of the court will be rendered ineffectual. {For other causes of action in which the order can he granted under § 550 see paragraph B. 2. ante, p. 769.) Sworn to, etc. Form No. 437. Complaint by Foreign Corporation to Obtain Order. Conversion.^ (Code Civ. Pro. § 549, subd. 2.) I. Plaintiff is a foreign corporation created, organized and existing under and by virtue of the laws of the State of , engaged in the manufacture of in , and having procured from the Secretary of State of New York, a certificate that it has complied with all the requirements of law, to authorize it to do business in this State, as provided by section 15 of the General Corporation Law of this State. II. At all the times hereinafter stated defendant under the name of A. B., by which name only he was known to plaintiff, was in the employ of the plaintiff in the City of , re- ceiving compensation for his services, and subject to the au- thority and orders of plaintiff, its officers and agents. III. Between the day of , 19 — , and the day of , 19 — , defendant while in the employ of plaintiff and subject to the authority and orders of plaintiff, as aforesaid, wrongfully took and stole from plaintiff, and fraudulently converted to his own use, certain gold bars of the 1 From C. R. Parmele Co. v. Haas, 171 N. Y. 579, where, with two affi- davits reciting in greater detail the acts of conversion, the papers were held sufficient. See paragraph 4, beginning p. 779, ante. 788 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. value of belonging to plaintiff and intended to be used by plaintiff in its business, and which gold bars had been received by defendant to be used by him in the business of plaintiff and for no other purpose, and sold and converted said gold to his own use. '* Wherefore, plaintiff demands judgment, etc. Form No. 438. Affidavit to Obtain Order.i Conversion of Money Received in a Fiduciary Capacity-^ (Code Civ. Pro. §549, subd. 2.) I am a cooper and tank builder. In , 19 — , I bought a quantity of lumber from the defendant in the City of , State of . He was doing business under the name and style of "D. B. B., Agent." Whether he was in business on his own account or as an agent for another or others, I did not know, nor did he mention the name of any other person with or for whom he was, or claimed to be, act- ing, until after the occurrences hereinafter set forth. The amount of my purchase of lumber from him was $378.66, for which sum I gave him my promissory note at three months from said date payable to "Mr. D. B. B., Agt." or order. The note was made out by some person in his office and signed by me. When the note came due, on the day of , 19 — , I arrived at the Bank where it was payable a few mo- ments too late to make a deposit and the note was protested. I at once saw the defendant, who told me if I would give him my two checks, one for $300, and one for $78.66, each dated 1 For formal parts, see Form No. 435, ante. 2 From Wandelt v. Burnett, 22 Misc. 315; 49 Supp. 109; in which the order was upheld. ARREST. 789 Proceedings to Obtain Order. the day of , 19 — , he would hold them and with them take up the note. I heard no more until the day of , 19 — , when defendant sent for me and told me he could not use the two checks; that the bank wanted one check only, for $379.91, which should include the protest fees as well as the amount of the note. I thereupon gave him another check for said last named sum of $379.91 on the Bank of the City of , State of , dated the day of , 19 — , payable to the order of D. B. B., with which he promised to take up and pay the note of the day of , 19 — . This check was afterward indorsed by him and cashed through or by the Bank on the day of , 19 — , and was paid in due course by the bank upon which it was drawn. The first two checks, that is, for $300 and $78.66, were not returned to me by the defendant, but he told me they had not been used except that he had deposited the check for $78.66, the amount of which would be paid to me; and I stopped payment on the $300 check. I heard no more from the original note until the day of , 19 — , and supposed it had been paid and canceled, though not returned to me. In , 19 — , a suit was brought against me as maker and D. B. B., the defendant, as indorser, by the Bank of the City of , State of , to recover judgment on said note, and I was subsequently obUged to pay the amount thereof with interest, costs of action and protest fees, amounting in all to $414.91. When I was sued on the note, I saw the defendant and asked him how this happened; if he had not taken up the note and why he had not used my check for the purpose for which I had given it? He professed surprise and regret, and said that the lumber I had bought and for which the note was given had come from one G.; that he had given the note to him and also the check wherewith to take it up. He then said he would 790 bradbuey's Lansing's forms and practice. Proceedings to Obtain Order. help me out if I would pay part cash and give my new note for the balance of the old note and costs, which said notes he would see were taken care of, which I did, but both of said notes went to protest and I was obliged to and did pay them in full, amounting as above stated to $414.91. Nothing was said to me about G. or any other person as defendant's principal when I bought the lumber nor when I gave the original note, nor when I gave the defendant my check for $379.91, until after suit was brought upon the said note, and I allege and charge that the defendant willfully and fraudulently obtained said check for $379.91 with design to convert the same to his own use and did wrongfully and fraud- ulently misapply the same and converted the same and its proceeds to his own use to my damage as aforesaid. Form If o. 439. Affidavits to Obtain Order.^ Conversion of Money Received in a Fiduciary Capacity. Another Form.^ (Code Civ. Pro. § 549, subd. 2.) That he resides at , Pennsylvania, and is engaged in the business, among other things, of manufacturing and selling flour. On information and belief {stating sources and grounds, as to which see pp. 648 et seq.) that the defendant J. J. B. resides at , New Jersey, and the defendant L. E. B. resides in the Borough of ■ , City of New York, and that they are associated in business as commission merchants doing business at No. Street, Borough of , City of New York. 1 For formal parts, see Form No. 435, ante. 2 From Argrave v. Blackman, 25 Misc. 654; 56 Supp. 412. The order was granted on these two affidavits, and was upheld. ARREST. 791 Proceedings to Obtain Order. That prior to the day of , 19 — , the said defendants, J. J. B. and L. E. B., being associated in business as commission merchants at No. Street, City of New York, offered to the deponent to find a purchaser or pur- chasers for such flour as the plaintiff would send them on commission, at a limit to be fixed by the deponent, a"nd to pro- cure for him the best prices possible above said Umit. That on or about the day of , 19 — , deponent consigned to said J. J. B. and L. E. B., commission merchants, to be sold by defendants in his interest and on his behalf, sacks of flour, of pounds each, marked , equivalent to barrels of pounds each, with instructions to sell in bulk or in parcel at the highest price the defendants could procure and not to sell for less price than dollars per barrel of pounds until they had further instructions from deponent. That the flour was shipped by deponent from , Pennsylvania, to New York City to his own order with in- structions to the carrier to notify the said defendants, J. J. B. and L. E. B., on the arrival of the flour at New York City. That said deponent did not sell the said flour to said J. J. B. or L. E. B., nor did he deliver it to them in any other manner, or for any other purpose, than as commission merchants as aforesaid, but that they converted the same to their own use. That on the day of , 19 — , J. J. B. and L. E. B. notified deponent that they had sold the said flour, but that they refused to state to him to whom they had sold it, and that the said J. J. B. and L. E. B. had neglected and refused and still neglect and refuse to return to said deponent the said flour, or to pay money or any part thereof due the deponent on the sale of the said flour. 792 bradbuey's Lansing's forms and practice. Proceedings to Obtain Order. Additional Affidavit to Gro with Preceding. That he resides at , New Jersey, and is the As- sistant Manager of S. C. & Co., a domestic corporation engaged in the collection of claims and other matters connected with a general collection agency. That on or about the day of , 19 — , S. C. & Co. received from its correspondent at , Pennsyl- vania, one E. S. G., an attorney at law at that place, for col- lection, a claim in favor of H. A. A., the plaintiff in the above- entitled action, against J. J. B. and L. E. B., the defendants in said action. That said claim was for sacks of rolled flfour of ■ pounds each, marked , consigned by the plaintiff to the defendants as commission merchants on the day of , 19 — , and also for sacks of flour of pounds each, consigned by the plaintiff to the defendants as commission merchants on the day of , 19 — . That said claim was turned over to said S. C. & Co. and to this deponent for attention and collection. That the deponent immediately called upon the defendants, J. J. B. and L. E. B., at their place of business at No. Street, Borough of , City of New York, and had a conversation with them in relation to said flour. That said deponent had various interviews with each of said defend- ants in relation to the claim and its payment. In each of the said interviews the defendants each admitted that the consignment of sacks of flour of pounds each on the day of , 19 — , and the consignment of sacks of flour of pounds each, on the day of , 19 — , had been duly received by them as commission merchants, and not otherwise, to sell as such commission merchants for the benefit of and in the interest of the said plaintiff; and each of the said ARBEST. 793 Proceedings to Obtain Order. defendants admitted that by them such consignment had been sold and the money therefor collected. That when the money received from the sale of the said consignment of was demanded, they each of them acknowledged that the money belonged to the plaintiff and should be paid over, and promised to make such payment in a few days. That on the day of , 19 — , said S. C. & Co. received from the defendants a letter written by the said defendants, L. E. B. and J. J. B., promising to pay over said money. A copy of said letter is hereunto attached, marked Exhibit "A." That the said money belonging to the plaintiff on said sale of said flour by the said defendants as aforesaid has not been paid to the said S. C. & Co. and that after fruitless efforts since the day of , 19 — , to secure payment of the said sum, the matter was turned over by said S. C. & Co. to its attorneys, C. & H., and that thereupon this suit was com- menced. Form No. 440. Complaint and Affidavits to Obtain Order. Conversion, by Indorsing Another's Stock Certificate. i (Code Civ. Pro. § 549, subd. 2.) Com'plamt. I. That before and until the time hereinafter mentioned the plaintiff was entitled to the immediate possession of a certain 1 From Reigner v. Spang, 5 App. Div. 237; 39 Supp. 127. The order was gra,nted on this complaint, with the affidavits following. On appeal, the court refused to interfere with the discretion of the court below by vacating the order, although the affidavits of the plaintiff and of the defendant sharply conflicted. 794 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. certificate of shares of stock of The Com- pany, his property; that the said certificate of stock was cer- tificate number and was of the value of . II. That on or about the day of , 19 — , at the City of , the defendant, then being in posses- sion of the said certificate of stock, unlawfully converted and disposed of the same to his own use to the plaintiff's damage dollars. Affidavit. That heretofore, and until the time hereinafter mentioned, the plaintiff was entitled to the immediate possession of a cer- tain certificate of stock in The Company, being cer- tificate No. for ■ shares, of the value of ; that on or about the day of , 19 — , at the City of , the defendant, then being in possession of said certificate of stock, unlawfully converted and disposed of the same to his own use, to the damage of the plaintiff dollars. That heretofore, and previous to the day of , 19 — , The Company, by its proper officers, issued to the plaintiff for value, the said certificate of stock. No. , for shares, in the said company; that the said stock, after being so issued, was delivered to the de- fendant to be given to the plaintiff; that thereafter and on or about the day of , 19 — , the defendant forged the plaintiff's name on the back of said certificate of stock, and converted and disposed of the same to his own use; that the said certificate of stock is hereto annexed, and the signature on the back thereof, purporting to be the plaintiff's signature, was not written by him or by his authority, and is not his signature. That the plaintiff is a resident of the State of New York, and has been such resident since about the day of , 19 — ; that the defendant at the time the said action ARREST. 795 Proceedings to Obtain Order. accrued, and at the time of the conversion of the said stock by him, was a resident of the State of Pennsylvania. {Add formal 'parts as in Form No. 435.) Affidavit. That deponent is assistant manager of S. C. & Co.; that on the day of , 19 — , he had a conversation with the above-named defendant; that in that conversation the defendant admitted to him that he, the defendant, had written the name of the plaintiff on the back of the said cer- tificate of stock which is hereto annexed; and that he wrote such name for the purpose of disposing of said stock; and that he never turned over the proceeds thereof to the plaintiff. Form ]Vo. 441. Allegations in Complaint to Obtain Order, Conversion.i (Code Civ. Pro. § 549, subd. 2.) That on or about the day of , 19 — , A. B., being then the owner of fifty shares of stock of the C. D. Co., of the par value of $100 per share, and having in her possession the certificate for the said fifty shares of stock, delivered said certificate to the defendant, E. F., who has since wrongfully detained, and still wrongfully detains, the same . . . .; that said certificate for fifty shares of stock of the C. D. Co. on or about the ■ day of , 19 — , came into the possession of the defendant G. H., and that he, on or about the day of , 19 — , unlawfully converted 1 From Barry v. Calder, 15 Qv. Pro. R. 16, ai5f'd 111 N. Y. 684, in which the order of arrest was upheld, based on this complaint and affidavits con- firming its statements. 796 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order, the same to his own use . . . . ; that on or about the — day of — , 19 — , the said A. B. duly demanded said certifi- cate of stock of the defendant, G. H., and that he refused to de- liver the same. That thereafter, and before this action, the said A. B. duly assigned to this plaintiff all her right, title and in- terest in and to said fifty shares of stock, and all claims against the above-named defendants for damages, for the conversion thereof; that thereafter, and before this action, the plaintiff demanded said certificate of stock of the defendant, E. F., and he refused to deliver the same. Form ]Vo. 442. Affidavits to Obtain Order, i Conversion of Funds Given Defendant for Another Purpose.^ (Code Civ. Pro. § 549, subd. 2.) That on or about the day of , 19 — , he intrusted the above-named defendant with the sum of three thousand dollars, at the same time giving defendant instruc- tions as to the application of said moneys to certain specific uses and purposes and directed him to hold the balance sub- ject to deponent's order. That on or about the day of , 19 — , deponent requested defendant to make an accounting of the said three thousand dollars, deposited with defendant as afore- said, and at once to pay over to deponent the residue remain- ing in his hands; but as deponent is informed and believes, defendant did not make a true statement to deponent of the 1 For formal parts, see Form No. 435, ante. 2 These two affidavits were used in Ooff v. Charlier, 44 Misc. 28; 89 Supp. 722 ; in which the appeal was on another point, the order apparently being held properly granted. ABEEST. 797 Proceedings to Obtain Order. amounts disbursed by him, but on the contrary made false and fraudulent representations concerning the same. That as deponent is informed and believes, the defendant has disbursed the sum of eleven himdred dollars pursuant to instructions given him by deponent as aforesaid, and has fraudulently and wrongfully converted the remainder of said three thousand dollars, to wit, the sum of nineteen hundred dollars, to his own use. Deponent states as the groimds of his information and be- lief as above set forth, that on the day of , 19 — , defendant stated to deponent that he had remaining in his hands out of the three thousand dollars above referred to, the sum of fifteen hundred dollars; and that he would imme- diately give deponent a check for same ; but that later defend- ant stated to deponent that he did not have said amount in his hands, but had sent the sum of one thousand three hundred and ninety-three dollars to one I. A. T., of the City of , State of , and thfe sum of four hundred dollars to the Bank of -, at the City of , State of , for the use of one W. R. W. The item of four hundred dollars was one of the specific items which defendant was instructed to pay; but the item of one thousand three hundred ninety-three doUars, which defendant alleged he had sent to the said T. at , was not authorized by deponent. Deponent imme- diately telegraphed the said I. A. T. as follows: " , 19—. Hon. I. A. T., , . "Have you received from E. S. C. one thousand three hun- dred ninety- three dollars for private account of Colonel W. B.? Has C. four hundred dollars to his personal credit in Bank of , ? Wire answer here immediately to my expense." In reply to this telegram deponent received a telegram dated , , , 19—, as follows: "Received no money from C. Bank refuses information. I. A. T." • 798 bradbuhy's Lansing's forms and practice. Proceedings to Obtain Order. Deponent is informed by his counsel, J. B. M., that the said W. has telegraphed to the said M. that defendant did not send him four hundred dollars, as stated to deponent on , as aforesaid; and there now remains unaccounted for by the defendant the sum of nineteen hundred dollars, which he fraudulently withholds from deponent and refuses to pay although the same has been duly demanded. Additional affidavit. J. B. M., being duly sworn, says that he is the attorney for the plaintiff in this action; that he has read the complaint herein and the affidavit of the plaintiff, verified the day of , 19 — , and that he is acquainted with all the facts and circumstances therein alleged; that he was present when plaintiff delivered to defendant the sum of three thou- sand dollars, and was present with plaintiff on the day of , 19 — , when plaintiff asked defendant for a statement of the three thousand dollars placed in his hands; and defendant stated to plaintiff in deponent's presence that he had fifteen hundred dollars and would immediately deliver check for same amount to plaintiff. But deponent was not present when defendant made the statement of having sent the sum of one thousand three hundred ninety-three dollars to I. A. T. of ; but that defendant had stated to de- ponent, previous to that time, that he had sent four hundred dollars to the Bank of for the use of W. R. W. That W. R. W. had gone to with the understand- ing that he would find four hundred dollars deposited in the Bank of of that place to his credit or use; but on the day of , 19 — , deponent received the following telegram from said W. R. W. : " 10 — "J. B. M. , "No money here. Have wired C, G. and C. Answer. W. R. W." ARREST. 799 Proceedings to Obtain Order. Deponent has made repeated efforts to communicate with defendant but has been unable to see him at his office at , , or to receive any answer from any communi- cations sent to him. Deponent verily believes that defendant wrongfully con- verted to his own use the sum of nineteen hundred dollars of the three thousand intrusted to him by plaintiff as alleged in the complaint. Form ]Vo. 443. Affidavit to Obtain Order. Personal Injury, Cruelty, in Action for Limited Divorce. ^ (Code Civ. Pro. § 549, subd. 2.) I am the wife of the defendant D. F. J. I am an inhabitant of the City, County and State of New York. I have resided in the said city with my said husband for the past year and four months. I was married to the defendant on the day of , 19 — , at , in the State of New Jersey. I am now twenty-five years of age and my husband is thirty-seven years of age; my husband's business has been since our marriage, and now is, that of traveling throughout the Western states in the rural districts thereof, selhng and supplying to farmers and other persons, dry goods and general merchandise, which he has shipped from New York City to the purchasers; this business has been carried on by him for a number of years, and has been, as I am informed by him, money making, he claiming to have made a profit of fifteen thousand dollars in such business for the period of six months 1 From Jamieson v. Jdmieson, 11 Hun, 38; in which the order was upheld. This case was followed in Schwartz v. Schwartz, 36 Misc. 487; 73 Supp. 935. The order was granted on the ground that such an action was one for a per- sonal injury. 800 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. during the last year, or year of 1876; he is worth, as I have been informed by him within the past year, between twenty- five thousand and thirty thousand dollars; and his property consists of bank stocks, viz.: ten thousand dollars' worth in the Trust Company of , Connecticut, which pays a yearly interest and dividend; he also owns, as he has said, bonds and mortgages on Western lands and railroad and insurance stocks, and some real estate in , altogether making the sum above mentioned, at least; his business as above described has kept him from this city for the period of about three months at a time; he has but just returned from an absence of three months, and said that he had made five thousand dollars in excess of his usual profit during this last period of absence. The day we were married we sailed for , England, his purpose being for pleasure, and to visit his relatives in , Scotland. The day following our marriage he in- sulted and abused me by falsely, unjustly and cruelly charging me, as follows: "I think you have been seduced." And the following day he left me alone on the deck of the large steamer, and desiring to return to my state-room and not knowing the way, I requested one of the gentlemen passengers to guide me, which he did, and on the way we met my husband, who in a passionate and angry tone said: "So you are bringing a gentle- man to your berth." And from that time during the whole passage, about nine days, his conduct was exacting, unkind and cruel in the extreme, compelling me to eat in a private saloon; notwithstanding my protestations, humility and grief at his unjust and unfounded jealousy, my meals, by his com- mand, were taken apart from himself. When we arrived at (about two weeks after land- ing at ) he began to drink excessively, and said that he had been ill-treated by my stepfather; that a job had been put upon him to induce him to marry me; that he had been promised by my stepfather ten thousand dollars with me; ARREST. 801 Proceedmjrs to Obtain Order. that he had not received it; that he would not have married me, but for the money he expected; that he had only married me for spite; all of these charges and insinuations were then unjust and untrue; our marriage was the result, as I believed, of mutual love, and on his part evidenced by the letter hereto annexed and marked A. [Further details of cruelty are then recited, including a threat to throiu the plaintiff overboard, abuse, curses, and assault, such as the following : ] My said husband assaulted me violently, seized me by my hair, and knocked my head with great force and cruelty against the wall of the room, against which the bed stood, thereby inflicting on me severe pain. . . . (On another occasion, dvly identified, he said) .... he would cut my throat with a razor, and he started for his razor: I ran to the hall-door, but could not open it. I ran back to the children's room; they were awake and screaming; their screams alarmed some of the neighbors and the front door bell rang; and my husband went to the door, and conversed with the person at the door; and I verily believe that, but for this slight interference, my life would probably have been taken by my husband. [On another occasion] .... one night as I returned from downstairs, where I had been to prepare food for the baby, he met me at our room door, and because I had been gone longer than he thought necessary, without a word of warning he struck me in the face, and twice on my shoulders with his fist, the blow in my face partially turning me around, and as I attempted to flee from his presence he struck me on the shoul- der as I have stated. No one saw this but a httle girl named , about nine years of age. She is living in this city, and her memory of this transaction is vivid, and her affidavit can be produced by me, or she in person. .... And I verily believe that my husband will kill me, if he is allowed an opportunity to do so. Vol. 1—51 802 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. Form ]Vo. 444. Complaint and AflSdavits to Obtain Order. Slander.^ (Code CSv. Pro. § 549, subd. 2.) Complaint. That at all the times hereinafter mentioned this plaintiff was a reputable and respectable person, and was president of the corporation known as the A. B. Company, which corporation does business in , said corporation having been at all times hereinafter mentioned duly organized under the laws of the State of New York. That in — , on or about the day of , 19 — , at the factory and office of the said corporation, this de- fendant maliciously with intent to hurt, injure and damage this plaintiff in his good name, fame, character and reputation in the presence and hearing of divers worthy persons and citi- zens, spoke of and concerning this plaintiff the false and de- famatory words, addressing plaintiff as follows: "You (meaning plaintiff) cheated CD., but you (meaning plaintiff) ain't going to cheat me" (meaning defendant). That the said CD. referred to was a person formerly in the employ of the A. B. Company, who, said C D., had left the company. That the said statement was utterly false and untrue. That the persons present heard the words so spoken as afore- said, and that by reason thereof this plaintiff has been injured and damaged in his good name, fame, character and reputa- tion in the sum of dollars. 1 The verified complaint, of whicli the above is a part, and the two affi- davits in corroboration, were used in the application for an order in Cran- dall v. Jacob, 22 App. Div. 400; 48 Supp. 279. The order was held properly granted. AEEEST. 803 Proceedings to Obtain Order. Affidavit.^ I am the plaintiff in the above-entitled action and am and have been president of the A. B. Company, which company manufactures , etc., in . The defendant, I. J., was formerly in the employ of deponent's company in the capacity of salesman. That during ■ , 19 — , deponent was informed by one K. L., of , that I. J., who had at about that time, left deponent's employ, had told him, K. L., that deponent as president of the corporation herein- before mentioned [Here the alleged slanders are recited as in the complaint, but in greater detail]. Affidavit. I am the shipping clerk of the A. B. Company, doing business in . That on or about the — day of , 19 — , deponent was present in the office of the said company, and heard I. J. state in his presence and in the presence of others to G. H., the president of the A. B. Company, that the said G. H. had cheated C. D., but that he would not cheat the said I. J. Form ;No. 445. Complaint and Affidavits to Obtain Order. Fraud,^ (Code Civ. Pro. § 649, subd. 2.) Complaint. That on the day of , 19 — , the defendant, contriving to injure the plaintiffs, and with latent to defraud, deceive and iajure the plaintiffs, falsely represented to the plaintiffs that his (defendant's) business was rapidly increas- ing; that his sales were increasing in amount each month; 1 For formal parts, see Form No. 435, ante. 2 From Lewis v. Pollack, 85 App. Div. 577; 83 Supp. 287; in which the order was upheld. 804 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. that he was in a perfectly solvent and splendid financial con- dition; that he was rapidly and steadily increasing the pro- portion of the stock which he owned absolutely free and clear above all debts, liabilities and other liens; that, other than the plaintiffs, he had few creditors, and that his accounts with most all such other creditors were very small. That on the day of , 19 — , the plaintiffs, relying upon and believing all the representations of the de- fendant . . . ., at the defendant's special instance and request, sold on credit and delivered to the defendant goods of the value of $ . That the defendant well knew that the said representa- tions .... were false, that he well knew, in fact and in truth, that his business was not increasing from month to month; that his sales for the month of , 19 — , were actually much greater than his sales for the month of , 19 — ; that on the and of , 19 — , and for many weeks prior thereto, he was in a hopelessly in- solvent condition; that he at that time owed to his creditors at least the sum of $ , and that he had little or no as- sets; that he had, besides these plaintiffs, many other cred- itors, and all of them for large amounts; that he had at least ten other large creditors, and the average amount of his in- debtedness to each of these other creditors was at least the sum of $ . That the defendant made the aforesaid false statements willfully and knowingly, mth the intent to deceive and de- fraud the plaintiffs, and with the intent that the plaintiffs should sell on credit and deliver to the defendant large quan- tities of diamonds and other precious stones. That the plaintiffs were in fact deceived by said false state- ments made by the defendant, and relying upon and beheving said statements, and not knowing anything to the contrary, plaintiffs, notwithstanding the fact that the defendant at that time still owed the plaintiffs the sum of | , did sell on ARREST. 805 Proceedings to Obtain Order. credit and deliver to the defendant a large quantity of dia- monds and precious stones of great value, to wit: $ . The plaintiffs are informed and believe that on the — day of , 19 — , the defendant failed to pay a promis- sory note made by him which was due and payable on that day, and that since said date defendant has failed to pay all promissory notes made by him, and which have since that day become due and payable. That defendant, upon information and belief, is now in a hopelessly insolvent condition, owing his creditors at least $ , and has assets which will not exceed $ in value. Affidavit.'^ I have known E. F., the above-named defendant, for a num- ber of years, [ etc. ] On or about , 19 — , E. F. came to our place of busi- ness. Later he came into my priA^ate office, and said he had come to purchase on credit a larger quantity than usual of goods to prepare for the Christmas holiday business. I told E. F. that he still owed us $ , the amount of his last purchase, and that I was opposed to selling him a large quan- tity of goods on credit. E. F. then represented to me at great length and with much repetition that his business had increased so much as would warrant us in increasing his credit three or four fold. He re- ferred to the conversation he had with me last summer, and said that since then the amount of his sales had continued to increase every month, and that hereafter, in order to meet the increased demand, he would have to carry a larger stock of goods. He" made a statement, the details of which I forget, but it showed that his assets were far in excess of his liabili- ties. He said he was rapidly "getting ahead" so that the proportion of stock which he ovimed absolutely free and clear above all indebtedness was materially increasing month by 1 For formal parts, see Form No. 435, ante. 806 beadburt's Lansing's foems and practice. Proceedings to Obtain Order. month. The business, he said, was in a splendid and perfectly solvent condition. In order to meet the rapid expansion of his trade, E. F. said he must have a larger credit. He said that several other houses were willing to give him such credit as he needed, and had asked him to deal with them, but that inasmuch as he had heretofore dealt chiefly with us, and had only a small account with a few other houses, he preferred to continue with us, if we would give him the larger credit. [Etc., in detail.] Affidavit.^ I verily believe that all the cash, amounting to about -, which A. B. is alleged to have lost in betting on horse races, has been hidden and secreted by him for his own future use, and in gross fraud of his creditors. I furthermore fear that A. B. will leave this State and jurisdiction, and de- prive me and his other creditors of aU remedies. Form No. 446. Complaint and Affidavits to Obtain Order. Frand with Reference to the Ownership of a Judgment.^ (Code Civ. Pro. § 549, subd. 2.) Complaint. The plaintiff, J. W. E., is a resident of , New York, and the plaintiff, J. S. W., is a resident of , Maine, and the defendant, C. T. R., is a resident of the State of Con- necticut. On or about the day of , 19 — , the de- fendant, for the purpose of obtaining money from the plaintiffs, 1 The order, in this case, however, was based on the nature of the action (fraud), and not on the extrinsic facts set forth in this affidavit. 2 From Elwell v. Russell, 29 App. Div. 436; 51 Supp. 964. The order was granted on this complaint, with the affidavits, and was upheld. ABEEST. SOT Proceedings to Obtain Order. falsely, deceitfully and fraudulently represented to them, that he, said defendant, was the owner and holder of a final judgment rendered in his favor in the Court, in the City of Paris, Republic of France, against one C. B., of the City of Paris, in the sum of francs, or thereabouts, and that the full amount of said judgment was due and owing him by the said C. B., less the sum of pounds ster- Ung, and that he had not theretofore given any assignment of such judgment or any part thereof, and that there was no Hen upon said judgment of any kind whatever, except for the above sum of potmds sterHng. On the faith and strength of the said representations and of the assignment hereinafter mentioned, the plaintiffs herein jointly loaned and advanced to the defendant herein the sum of dollars, on condition that the same should be re- paid to them from the first moneys received by defendant from or on account of said judgment, and to secure the said loan and a pre-existing indebtedness of dollars then due from defendant to plaintiffs, the defendant gave the plain- tiffs an assignment of an interest in the aforesaid alleged judg- ment up to the sum of dollars. That said representations and the said assignment were false and fraudulent, inasmuch as the said defendant never had a judgment against the said C. B., of Paris, France, either at the time of the making of said representation and pretended assignment, or at any other time, nor has he now such a judg- ment, and the whole sum of dollars so advanced on the faith and credit of said misrepresentations and of said assignment of the said judgment is now due to plaintiffs, no part thereof having been paid. Affidavit.^ That a sufficient cause of action exists in behalf of the plaintiffs and against the defendant . . . ., to wit, an action 1 For formal parts, see Form No. 435, ante. 808 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. to recover damages for fraud and deceit, inasmuch as the said defendant by falsely, deceitfully and fraudulently represent- ing that he was the owner and holder of a certain final judg- ment rendered in his favor in the court in the City of Paris, France, against one C. B., of the City of Paris, France, in the sum of francs, or thereabouts, obtained from the plaintiffs the sum of dollars, on the faith and strength of said fraudulent representations, and of an assign- ment of an interest in the said alleged judgment to the extent of said dollars, and by means of said false represen- tations and on the faith of an assignment of an interest in said judgment, a copy of which is hereto annexed, obtained from the plaintiffs the sum of dollars on or about — , 19 — . The amount in which the plaintiffs have been thereby injured is the sum of dollars, and interest from , 19 — . That in , 19 — , deponent instructed Pt. D. B., Esq., to go to Mr. F., who as deponent was informed by said R., was the attorney of the said R. in the suit against B. in which he averred that said judgment had been rendered, to inquire when the money would be received on the judgment, and that said B. went to make such inquiries, and thereafter informed deponent that he had learned by such inquiries that there never had been any judgment rendered in said action, final or otherwise, in favor of said R. against said B. but that on the contrary the said action had been decided in the favor of the said B. against the said R. And deponent therefore avers that the representations of the said R. as to said judgment were false and fraudulent. Affidavit. In , 19 — , being in Paris, France, deponent went to the office of Mr. F., the attorney who had charge of the legal proceeding brought by C. T. R. against C. B., which legal proceedings were alleged to have resulted in a final judgment ARREST. 809 Proceedinss to Obtain Order. entered against C. B., for the sum of — francs, or thereabouts, mentioned in the assignment of judgment exe- cuted by said R. to the plaintiffs herein. That deponent did not see said F. himself, but saw his partner or managing clerk, Mr. H. That deponent inquired of him in reference to the said alleged judgment in favor of R. against B. and was informed by him that no judgment final or otherwise, in favor of said R., had ever been entered in said action against said C. B., but that on the contrary a judgment had been rendered in the case in favor of said B. against said R. Deponent went to the office of said F. to make inquiries in reference to said judgment at the request of Mr. E., one of the plaintiffs herein. Affidavit. Deponent wrote to the United States Consul at Paris, France, making inquiry in reference to the suit against B., and was in- formed by the said Consul that no judgment had ever been rendered in favor of said R. against said B. Form No. 447. AfBldavit to Obtain Order.^ Fraud in Contracting a Liability.^ (Code Civ. Pro. § 549, subd. 2.) The deponent and P. H. A. were at the times hereinafter mentioned, and are now, copartners in business, under the firm name of L. and A., at the City of , in the State of — , and the defendant above named was, at the 1 Prefix and affix formal parts, paragraphs 1, 2, 3, 5 and 6, in Form No. 435, ante. 2 From Leach v. Linde, 73 Hun, 246; 25 Supp. 1042; aff' d 142 N. Y. 628; in which the order was upheld. 810 beadbuey's Lansing's forms and peacticb. Proceedings to Obtain Order. time hereinafter named, in business as copartner with one R. B. L., trading under the firm name and style of L. & L. On the day of , 19 — , the defendant and said R. B. L., representing that they were the owners of shares of the capital stock of the R. T. I. Co., a corporation duly organized and existing imder and by virtue of the laws of the State of New Jersey, the entire capital stock of said company being shares of dollars each, entered into a contract with plaintiffs, as foUows: [Here is detailed the contract, by which the -plaintiffs were to organize a corporation, purchase certain bonds, accept a certain lease, etc.; followed by the alleged fraudulent statements and practices of the defendants. (For details of fraud sufficient to warrant arrest, see Form No. 446, ante.)]. Deponent's firm thereupon and thereafter commenced suit against the said C. F. L., as defendant, in the Court, County of , State of North Carolina, to recover the siun of dollars damages arising from the deponent's firm having been induced by the false representations made by the said defendant, as aforesaid, to purchase said bonds and accept said lease, and process therein was duly served personally on the said C. F. L., who appeared in said action, and defended the same upon its merits, and thereafter and after a trial by jury upon the merits thereof on or about the day of , 19 — , the said plaintiffs recovered judgment against the said C. F. L., in said action, in said Court, then and there having jurisdiction, both of the parties and of the subject-matter thereof, for the sum of dollars, with interest thereon from the day of , 19 — , together with costs and disbursements. The following are the issues by the Court submitted to the jury on the trial of the said case, and the answers of the jury thereto, as filed as a part of the record of the said case, in the office of the Clerk of the Court of the said County. ARREST. 811 Proceedings to Obtain Order. 1. At the time of the purchase of the bonds and acceptance of the lease by plaintiffs, did the defendant falsely and fraudu- lently represent to plaintiffs that the plant and ice machinery and every essential part thereof was in good repair and condi- tion, and that it would produce tons of ice per day at a cost of not more than doUars per ton? Answer. — Yes. 2. Did defendant know said representations to be false? Answer. — Yes. 3. Were the plaintiffs induced by said representations to purchase said bonds and accept said lease? Answer. — Yes. 4. What damage, if any, are plaintiffs entitled to recover? Answer. doUars. Thereupon and thereafter, the said defendant appealed from the said judgment to the Court of North Carolina, and the said cause coming on to be argued before said Court, it was thereupon adjudged that there was no error in the record and proceedings of the said Court, and the said judgment was thereupon, on or about the day of , 19 — , affirmed with costs, against the said C. F. L. The said judgment is unreversed, and unsatisfied, and the deponent's said firm is stiU the owner and holder thereof, and there is due thereon to deponent's firm the sum of dollars with interest thereon from the day of -, 19 — , together with the sum of doUars costs. 812 beadbuby's Lansing's forms and practice. Proceedings to Obtain Order. Form No. 448. Complaint and Affidavits to Obtain Order. Fraud and Deceit in Forming Partnership.' (Code Civ. Pro. § 549, subd. 2.) Complaint. I. At divers times during the month of , 19 — , the defendant, being then engaged in business in the City of New York, as insurance broker, and having proposed to the plaintiff that they form a copartnership in the insurance business, did, with intent to deceive and defraud the plaintiff, falsely and fraudulently represent to him that he owned the good will of a business amounting in gross to the sum of $65,575 a year upon which the annual commissions or profits would be upwards of fifteen per cent., or $9,836.25. II. The plaintiff, relying upon these representations, entered in a partnership agreement of which a copy, marked Exhibit A, is hereto annexed and made a part hereof. III. In truth, and as defendant well knew, said representa- tions were false, and of the good will of said business a large part stated by the defendant to amount to the sum of $5,000 a year the defendant did not have, another large part stated by him to amount to the sum of $12;525 a year he had pre- viously transferred to the firm of J. A. E. & Co., and upon the business of one customer stated by him to amount to $19,500 he had allowed a rebate to said customer of two-thirds of the aforesaid fifteen per cent., and in other respects said repre- sentations were false, to the defendant's knowledge. Affidavit.^ In the month of , 19 — , I was engaged at No. — - Street, in the City of , in the business of 1 From Hubbard v. Richardson, 31 App. Div. .520; 52 Supp. 35. The order was granted on this complaint, and the two affidavits, and was upheld. 2 Prefix and affix formal parts, paragraphs 1, 2, 3, 5 and 6, in Form No. 435, ante. AEREST. 813 Proceedings to Obtain Order. insurance broker. About the day of that month, the defendant, W. K. R., came to my ofhce and stated to me that he had been in the employ of J. A. E. & Co., insurance brokers, at No. Street, in this city; that being dissatisfied with his situation there, he had left -their employ and that he desired to enter into a partnership arrangement with me, as insurance brokers. He stated to me as an induce- ment to the formation of such a partnership contract, that certain persons, business concerns, corporations and partner- ships, then engaged in business in the City of New York and elsewhere, of which he gave me a list in writing, a copy of which is hereto annexed, marked Exhibit B, had at that time insurance in force upon their property which represented premiums to the amounts severally set opposite the names of the various concerns mentioned in the list; that that insurance was contained in yearly contracts and was reissued from year to year; that these concerns vrcre customers of his; that he absolutely controlled the business of issuing and reissuing their insurance; and that he could bring into the partnership which he proposed the good will of a yearly business from these concerns amounting in value to the sum of the premiums in the list, which sum was $65,575. The gross profits on that amount of insurance would be the broker's commissions at an average rate of upwards of fifteen per cent., or $9,836.25 a year. [Paragraph referring to partnership agreement.] The representations as to the amount of business which he controlled were to the defendant's knowledge false in fact in the following particulars, which I did not know at the time, but which have since come to my personal knowledge : At the time he made these representations, the defendant had entered into an agreement in writing, which I have since personally seen, with J. A. E. & Co., whereby he undertook to pay to them certain moneys secured by promissory notes and whereby he assigned to said J. A. E. & Co. all his interest in 814 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. certain of the accoimts mentioned in the aforesaid Ust, and wherein and whereby he agreed no longer to regard the per- sons named in said accounts as his customers and not to apply to them for business in the future. These accounts with the amounts of premiums set opposite the names of the concerns were as follows: [List is here given.] These accounts were never brought by him to the firm and my loss on them was sixty per cent, of fifteen per cent, of the total, or the sum of $1,127.25. [Here follow detailed statements as to other false representor tions.] Wherefore, [etc.]. Affidavit. I am one of the attorneys for the plaintiff herein and am familiar with the matters which constitute the subject-matter of this action. On the day of , 19 — , I applied to J. A. E., the principal member of the firm of J. A. E. & Co., mentioned in the affidavit of the plaintiff herein, and asked to be allowed to have the agreement in writing mentioned by the plaintiff to the effect that the defendant herein had transferred certain accounts to said J. A. E. & Co., and, if I could not have the agreement, that I might make a copy of it. Said J. A. E. stated to me that he was unwilling to let me have the agreement or to make a copy of it without the consent of his counsel. A, R. L., of this city. Accordingly, I made the same application to Mr. L. and was informed by him that he, on behalf of J. A. E. & Co., had certain pending matters with the defendant and that he must, consequently, refuse to let me see or make a copy of the agreement. ARREST. 815 Proceedings to Obtain Order. Form No. 449. Allegations in Complaint to Obtain Order. Action for Willful Injury to Property, Defendant Being a Woman, ^ ^ (Code Civ. Pro. §§ 549, subd. 2, 553.) That on or about the day of , 19 — , the plaintiff, by a certain indenture of lease bearing date that day, leased the said premises to the defendant, M. G., together with the household furniture, etc., .... That on or about the day of , 19 — , the defendant entered into possession of the same. That among the said household furniture, goods and ar- ticles belonging to the plaintiff and leased to the defendant by the said lease were the following articles: Seven carpets, of the fair and reasonable value of I ; etc., the total value of which is $ . That the said defendant failed and refused to pay the rent due by the said indenture of lease on the ■ day of , 19 — , and thereafter and on or about the day of , 19 — , the plaintiff obtained a final order in sununary proceedings awarding delivery of the possession of said premises to the plaintiff; that thereby the plaintiff be- came and was entitled to the inmiediate possession of the said premises and of the personal property hereinabove enumer- ated. That thereafter, and on the day of , 19 — , plaintiff duly demanded of the defendant the return of the said personal property hereinabove enumerated, but the defendant willfully withholds the same, and has refused to re- turn the same, and has converted the same to her own use, to the plaintiff's damage, in the sum of $ . 1 See, under Exemptions, paragraph Woman, p. 773, ante. 2 See Barnes v. Goss, 98 App. Div. 1; 90 Supp. 140"; in which, however, the order of arrest was vacated on the ground that the exact value of the specific articles converted was not stated in the complaint. 816 bkadbury's Lansing's forms and practice. Proceedings to Obtain Order. Form No. 450. Allegations in Complaint to Obtain Order. Action for a Personal Injury, Alienation of Wife's Affections.' (Code Civ. Pro. § 549, subd. 2.) That on the day of , 19 — , in the City of , County of , State of New York, the plaintiff intermarried with one C. W., since named and known as C. W. S., and that at the time of the commission of the acts hereinafter mentioned, and up to about , 19 — , this plaintiff and his said wife were living happily together as husband and wife in the State of New York. Upon information and belief that the defendant above named, contriving and willfully intending to injure the plain- tiff and deprive him of the comfort, society, aid and assistance of his said wife and alienate and destroy her affection for him, heretofore and at divers times and places during the years 19 — , 19 — , and 19 — , and before the commencement of this action, at various places in the City of , at the house of the plaintiff at , and at , and elsewhere, wrongfully and wickedly, and without privity or connivance of this plaintiff, debauched and carnally knew the said C. W. S., then and ever since the wife of this plaintiff, by means whereof the affection of the said C. W. S. for the plaintiff was wholly alienated and destroyed, and by reason of the premises the plaintiff has wholly lost the comfort, society, aid and assist- ance of his said wife, which he during all the times aforesaid might and ought to have enjoyed. That thereafter, and in the month of , 19 — , the said C. W. S. left the bed and board of this plaintiff, and has since refused to live with this plaintiff, and to cohabit with this plaintiff, or to live with him in the relation of husband and wife, and by reason of the said acts of the said defendant, as 1 From SihUy v. Smith, 67 App. Div. 514; 73 Supp. 977. AEEEST. 817 Proceedings to Obtain Order. heretofore alleged, the affection of said C. W. S. has been alienated from this plaintiff, and this plaintiff has lost her so- ciety, aid and assistance. That by reason of the premises and of the said acts of the said defendant this plaintiff has suffered great distress in body and mind, and in other respects, all to the damage of this plain- tiff in the sum of dollars. Form No. 451. Affidavit to Obtain Order. ^ Nonresidence.^ (Code Civ. Pro. § 550.) A. B., being duly sworn, says that he is, and has been for over five years last past, personally acquainted with C. D., the defendant in the above-entitled action. That for five years last past defendant and his family have lived in Jersey City, in the State of New Jersey. That although defendant's busi- ness is in New York City, he spends his nights and Sundays, with occasional exceptions, with his family in Jersey City. That deponent has frequently, in the morning and in the even- ing, traveled between Jersey City and New York on the same ferryboat with defendant, and defendant has often, on such occasions, referred to the facts that he was going to or return- ing from his business, and that he and his family considered themselves residents of the State of New Jersey. 1 Prefix and affix formal parts, paragraphs 1, 2 and 6 from Form No. 435, ante, and such parts of Form No. 436, ante, as will readily suggest themselves. 2 It would seem, from reference to the case of Barry v. Bockover, 6 Abb. Pr. 374, that such an affidavit would be sufficient as to nonresidence. Vol. 1—52 818 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. Form ]Vo. 453. Affidavits to Obtain Order, i Concealment of Chattel.^ (Code Civ. Pro. § 549, subd. 2.) S. E., being duly sworn, says he is engaged in the manufac- ture and sale of , and that which appertains thereto; that he is acquainted with the defendant, P. M., and that he did, between the day of , 19 — , and the day of , 19 — , sell and deliver to him goods and merchandise, consisting^ of , to the amount and of the value of dollars; that on or about the day of , 19 — , the said defendant, P. M., called upon this deponent for the purpose of buying goods and merchan- dise; and in answer to questions as to his solvency and re- sponsibility, said to this deponent that he was perfectly sol- vent, and worth the sum of dollars above all his debts and liabilities, and this deponent, relying upon said statements and representations, and believing the same to be true, sold and dehvered to him said goods and merchandise mentioned as aforesaid. Deponent further says, that between the day of , 19 — , and the time of the mak- ing of said assignment by said defendant, he did make and repeat his said statements and representations as to his finan- cial condition and responsibility, and by reason of which said goods and merchandise were from time to time sold and de- livered to him. This deponent further says, that the said statements and representations so made by said defendant were false, and so known to be false by said defendant when made, and were made with the preconceived object and design of cheating and defrauding this deponent out of said goods and chattels. Deponent further says, that this defendant 1 Prefix and affix formal parts, paragraphs 1, 2, 3, 5 and 6, in Form No. 435, ante. 2 From Fitch v. McMahon, 103 N. Y. 690, in which the order was upheld. ARREST. 819 Proceedings to Obtain Order. did, in the early part of , 19 — , make an assignment for the benefit of his creditors, in and by which it appears that, after the payment of a certain preference to his son, F. M., of dollars, and the payment of one other preference, there would be about the sum of dollars, with which to pay the debts of said defendant; that the said defendant has at many times in interviews had with this deponent, men- tioned said son, who resided at , England; and that he was under no obligations to said son, and that he was in the habit of sending said son horses, and that said son was not a creditor of said defendant, but, on the contrary, the said son was a debtor of said defendant; and that he (this defendant) had no claims or demands against him, except such demands as might arise in his ordinary business trans- actions, and for which claims he had dollars for same. This deponent further says, that the value of the said goods and merchandise not returned by the said sheriff, by virtue of the writ of replevin issued herein, amounts to the sum of doUars, and that the said defendant, P. M., has either sold, removed or otherwise disposed of the same, so that the same could not be found, and for which a recovery is sought in this action. Additional affidavit. J. S. S., being duly sworn, says he resides at No. Avenue, in the City of New York; that he is in the employ of S. E., whose affidavit is hereto annexed; that he knows P. M., one of the defendants in this action; that he has been in the employ of S. E. for several years last past; that he has heard said P. M., from time to time, from the (Jay of , 19 — , up to the time of his failure, state to said S. E. in answer to questions put to him, that he was per- fectly solvent, and that he was worth the sum of about ■ dollars above all his debts and liabilities, and that he was in every way able to pay for all his goods and merchandise Proceedings to Obtain Order. SO purchased from deponent's said employer. And this de- ponent has heard said S. E. state to said P. M., that he relied upon said statements and representations so made to him, and depending thereon, would sell and dehver to him the said goods and merchandise so purchased by said P. M., as men- tioned in said S. E.'s affidavit annexed hereto. Additional affidavit. H. J. E., being duly sworn, says that he is engaged in the manufacture and sale of — , at No. Street, in the City of New York. That between the day of 19 — , and the day of , 19 — , this deponent did sell and deliver to the said defendant, P. M., goods and merchandise consisting of , to the amount and of the value of dollars. This deponent has prior to the day of , 19 — , sold and delivered goods and merchandise to the said defendant, P. M., but solely for cash. That on or about the day of , 19 — , the said defendant purchased goods and merchandise amounting to dollars, for cash at thirty days. That at about the maturity of the first of said bills, the said defendant called upon this deponent and said that he wished some time within which to pay said bill, and stated that he had recently purchased a large amount of merchandise and was temporarily short but that his financial condition was perfectly solvent and he was in every way able to pay all claims or demands due and owing by him to his creditors. This deponent further says that, beheving said statements and representations so made by said defendant to be true, and relying thereon, he did extend the time of pajmient of said goods and merchandise so sold and delivered to him on said day of , 19 — , and further sold and deUvered to him the balance of said goods and merchandise above mentioned. And this deponent further says that all of said goods and merchandise so sold and delivered by him to ARREST. 821 Proceedings to Obtain Order. said defendant, were so sold and delivered solely by reason of the said statements and representations so made by said de- fendant. This deponent further says, that said statements and representations so made by said defendant, were false, and so known to be false by him when made, and made with the preconteived design of cheating this deponent out of said goods and merchandise, as appears by the affidavits hereto annexed, and to which this deponent refers. Deponent fur- ther says, that, as he is informed by A. K., Esq., attorney for the plaintiff herein, a part of said goods and chattels have not been returned by the sheriff by virtue of the writ of replevin issued in this action, amounting to the sum of dol- lars. Deponent further says that prior to the commencement of this action he assigned his said claim for said goods and mer- chandise to the plaintiff above named. Form Wo. 453. Affidavit to Procure Discharge of Privileged Person. (Code Civ. Pro. § 564.) [Title.] County, ss. E. F., of , being duly sworn, says, that he has been arrested in the above-entitled action, pursuant to the order of the Court, made at a Term thereof, held at , on the — day of ■, 19 — [or pursuant to the order of , a judge of the Court, dated , 19 — ], and is now in the custody of such sheriff under said arrest. That he is privileged from such arrest by reason of his being [here state, the facts entitling applicant to the discharge].^ E. F. Sworn to, etc. 1 See title Exemptions, beginning page 773, ante. 822 Bradbury's Lansing's forms and practice. Proceedings to Obtain Order. Form No. 454. Order Discharging Privileged Person from Arrest. (Code Civ. Pro. § 564.) At, etc., where the order is made by the court. [Title.] It having appeared by the affidavit of E. F., the defendant in the above-entitled action, that he has been arrested by G. H., sheriff of county, pursuant to the order of the court [or of I. J., judge of the Court], dated , 19 — , and that he is now in custody of said sheriff under said arrest, and that he is privileged from arrest by reason of his being [here recite facts entitling applicant to discharge (and it appearing that due notice has been given of this motion to said sheriff, and to M. N., the attorney for the plaintiff) ]; ^ and after hearing P. Q., counsel for said E. F., and said M. N., for the said defendant [or no one opposing]: It is hereby ordered [or I do hereby order], that said E. F., be and he is hereby discharged from said arrest, and that said sheriff release the said E. F. from his custody, upon the service upon him of a certified copy of this order. [Dated at , in the county of , on the day of , 19 — (when made by judge).] [Signature of judge, when made by him.] 1 The court or judge may require notice to be given to the sheriff, or to the plaintiff, or both. Code Civ. Pro. § 564. The better practice would, therefore, appear to be, ordinarily, to give notice in advance of the motion, or obtain an order to show cause where shorter time is required. AKEEST. 823 The Order and Proceedings to Execute it. V. THE ORDER AND PROCEEDINGS TO EXECUTE IT. FORMS. NO. PAGE. 455. Judge's order of arrest; personal injury 826. 456. Recitals, in orders of arrest, of the grounds on which they are made 826. 457. Order of the court for arrest of defendant in civil action 828. 458. Indorsement by plaintiff's attorney upon order of arrest, limit- ing time for arrest 829. 1. Contents of order; grounds. — Every order of arrest shall briefly state the grounds on which it is granted. Rule 13, Oen. Rules of Prac. And must recite the affidavits on which it is granted. Brown v. Coleman, 95 App. Div. 545 ; 89 Supp. 427. Subscriptions. — The order must be subscribed by the plaintiff's attorney, and, except where it is granted by the court, by the judge. Code Civ. Pro. § 561. This statute is imperative and must be complied with. Thompson v. Friedherg, 54 How. Pr. 519. But the omission of the attorney's signature may, under Code Civ. Pro. % 723, be supplied by amendment. Mather v. Hannaii-r, 55 How. Pr. 1. Time allowed for arrest. — The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant . must be ar- rested. In that case, he cannot be arrested afterwards, under the same order. Code Civ. Pro. § 561. It probably would not be enough, if this indorsement were only on the original order, and not on the copy served. Pent v. WatJcins, 49 How. Pr. 275. Direction to sheriff. — It must require the sheriff forthwith to arrest the defendant, if he is found within his county ; to hold him to bail in a specified sum ; and to return the order, with his proceedings thereunder, as prescribed by law. Code Civ. Pro. § 561. It may be directed, either to the Sheriff of a particular county, or, generally, to the sheriff of any county. Id. 824 Bradbury's lansing s forms and practice. The Order and Proceedings to Execute it. 2. Execution of the order. — The order of arrest, or, where it was granted by the court, a certified copy thereof, subscribed by the plantiff 's attorney ; and, in either case, the papers upon which the order was granted, with the undertaking, if any ; ■ must be delivered to the sheriff, who, upon arresting the de- fendant, must deliver to him a copy thereof. The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in Code Civ. Pro. § 590. Code Civ. Pro. § 662. Failure of the sheriff to serve on the defendant a copy of the aifidavit is, it seems, only an irregularity. Barher v. Cooh, 25 How. Pr. 190 (1863 case). Imperfections in the copy of the order of arrest, and of the affidavits on which it was granted, have been held not grounds for setting the order aside. Bank of Havana v. Moore, 5 Hun, 624. The sheriff must execute the order hy arresting the defenda/nt, if he is found within his county, and keeping him in custody until discharged by law. Code Civ. Pro. § 563. The sheriff cannot arrest outside of his own county. Fisher v. Young, 41 Misc. 552 ; 85 Supp. 115 ; aff'd 95 App. Div. 619. An order of arrest was vacated and the defendant discharged, where a private detective had forcibly detained the defendant until the sheriff could arrest him ; and the court said : " It is necessary, in order that an officer shall be justified in the execution of a civil process, that the right of arrest shall be exercised within his jurisdiction, and that he have present with him his au- thority to make the arrest." Harland v. Howard, 57 Hun, 113; 10 Supp. 449. Jail liberties. — "A person giving an undertaking for the jail liberties is not discharged from arrest, nor generally set at large." Horowitz v. Olenich, 62 App. Div. 283 ; 70 Supp. 1116. By L. 1904, c. 384, Code Civ. Pro. § 145, prescribing the jail liberties, was changed so as to read, instead of, " For the City and County of IS'ew York, the Whole of said City and County," "For the County of ]S''ew York, the whole of said County." By the same statute. Code Civ. Pro. %% 149 ARREST. 825 The Order and Proceedings to Execute it. 150, 151, 158, 167, 169, 171 and 582 were also amended. The amendment to Code Civ. Pro. § 158, provides that upon the giving and approval of the undertaking mentioned in § 150, no action for an escape shall be maintained against the sheriff. In the last few years, by amendments to § 145, the jail liber- ties have been changed for a number of counties. Sheriff to file papers. — "Within ten days after the defendant is arrested, if he does not give bail, or if he gives bail, within ten days after the justification of the bail, the sheriff must file with the clerk the order of arrest, or, where it was granted by the court, the certified copy thereof delivered to him, with his return thereupon indorsed, the papers upon which the or- der of arrest was granted, and the undertaking given on the part of the plaintiff. Where an order of arrest, directing the arrest of two or more defendants, has been executed as to one or more, but not as to all of them, the sheriff may file a copy of the order of arrest, instead of the original. Code Civ. Pro. §590. 3. Effect of the order; time to answer. — Except where an order of arrest can be granted only by the court, a defend- ant, arrested before answer, has twenty days, after the arrest, in which to answer the complaint, and judgment must be stayed accordingly. Code Civ. Pro. % 566. This rule was enforced although judgment had been directed by default, twenty days after the service of the summons, but only twelve days after the order of arrest was executed. Clady v. Wood, m How. Pr. 1. Preference. — ^Whenever an issue has been joined, if the de- fendant is imprisoned under an order of arrest in the action, the trial of the action shall be preferred. Kule 36, Gen. Rules of Prao. Plaintiff, as well as defendant, can take advantage of this rule. Knox v. Dulroff, 17 App. Div. 290 ; 45 Supp. 271. But neither party can apply for a preference if the de- fendant is -out on bail. Boeger v. Hoffman, 58 App. Div. 540 ; 69 Supp. 258. 826 Bradbury's Lansing's forms and practice. The Order and Proceedings to Execute it. Form No. 455, Judge's Order for Arrest— Personal Injury. ^ (Code Civ. Pro. § 549, subd. 2.) [Title of action.] To the Sheriff of the County of It having been made to appear to me, by the affidavits of A. B.,^ verified , 19 — , and 0. t)., verified , 19 — , the summons and a verified complaint herein, that a suf- ficient cause of action exists against the defendant, E. F., and that the case is one of those mentioned in § 549 of the Code of Civil Procedure, and that the ground is for damages for a personal injury in that the defendant made certain slanderous remarks concerning this plaintiff. You are required forthwith to arrest E. F. in this action if he is found within your county, and to hold him to bail in the sum of dollars, and to return this order, with your proceedings thereunder, as prescribed by law. Dated at , in the county of , , 19 — . G. H., Judge of the Supreme Court of the State of New York, {or other Court as the case may he.) I. J., Plaintiff's Attorney. \_Ojjiice address.'] Form No. 456. Recitals, in Orders of Arrest, of the Grounds on Which They are Made. Emhezzlement? — The ground of arrest is the conversion of money embezzled or fraudulently misapplied by said defend- 1 Upheld in Crandall v. Jacob, 22 App. Div. 400; 48 Supp. 279. 2 Affidavits not recited in the order will not be considered on a motion to vacate. Brown v. Coleman, 95 App. Div. 545; 89 Supp, 427. 3 This language was used in the order in Quail v. 'Nelson, 39 App. Div. AEEEST. 827 The Order and Proceedings to Execute it. ant in the course of his employment as attorney for the afore- said , deceased. Conversion} — And that the case is one of those mentioned in Section • of the Code of Civil Procedure, and that the ground of arrest is the wrongful taking and conversion of per- sonal property. Conversion — Another form? — That a cause of action exists in favor of the abOve-named plaintiff against the above-named defendants for the conversion of personal property upon which ground this order of arrest is granted. Fraud? — The above-entitled action .... is about to be brought to recover damages for fraud and deceit. Conversion and Fraud? — And that the case is one of those mentioned in Article 1st, Chapter 7, Title 1, of the New York Code of Civil Procedure, and that the ground of arrest is the wrongful detention and conversion of personal property, and the fraud and deceit practiced by defendant in procuring pos- session of said property. Lilel? — And that the case is one of those mentioned in Ar- ticle 1st, Chapter 7, Title 1, of the JSTew York Code of Civil Procedure, and that ground of arrest is libel by defendant against plaintiff above named. Willful injury to property, where defendant is a woman? — ■ And that this case is one mentioned in Sections 549 and 553 18; 56 Supp. 865; and was upheld. The court declared that the words used did not state the grounds in the alternative, thereby asserting "nei- ther the one nor the other fact" {Cronin v. Crooks, 143 N. Y. 352), but simply gave a definition of the offense. Blanek v. Nelson, 39 App. Div. 21; 56 Supp. 867. 1 See C. R. Parmele Co. v. Saas, 171 N. T. 579. 2 From Barry v. Calder, 15 Civ. Pro.R. 16; afi'd 111 N. Y. 684; in which the order was upheld. 3 From Lewis v. Pollack, 85 App. Div. 577; 83 Supp. 287; and Mwell v. Bussell, 29 App. Div. 436; 51 Supp. 964; in which the orders were upheld.