lilipfiflfif I liiHiiis H n rrnTTHiTHTut i iiiiiiiiiiii (IJont^U Ham ^rl|ooI ICibrary Cornell university Library 3 1924 022 788 461 BRADBURY'S LAWYERS' MANUAL AND CLERKS' AND CONVEYANCERS' ASSISTANT CONTAINING A LARGE PROPORTION OF THE FORMS OF CIVIL PRACTICE MOST FREQUENTLY NEEDED, WITH MANY VALUABLE NOTES, TOGETHER WITH FORMS OF CON- VEYANCES, CONTRACTS, WILLS, ACKNOWLEDG- MENTS, AFFIDAVITS, CORPORATE FORMS, AND MANY OTHER DOCUMENTS WHICH THE BUSY LAWYER CONSTANTLY USES HARRY B. BRADBURY of the new york bak s of pleading," " fobm 'forms and practice," "workmen's compensa- tion," 1st, 2d and 3d editions, etc., etc. NEW YORK THE BANKS LAW PUBLISHING CO. BAKER, VOORHIS & CO. 1917 copybight, 1917 By THE BANKS LAW PUBLISHING COMPANY AND BAKER, VOORHIS & CO. PREFACE The sometimes conflicting, the more often concurrent, and the frequently interlocking provisions of the Consolidated Laws, various special statutes, the Code of Civil Procedure, the General Rules of Practice, the special rules of various courts and of the different parts of the same court, the temporary rules of different judges while presiding at particular parts of various courts, with conflicting interpretations by different tribunals, as to many of these statutes and rules, tend to produce a tangle which it is not infrequently difficult to unravel. This book represents an attempt to perform this task in regard to the questions most frequently arising in everyday experience. It is a remembrancer to the experienced members of the Bar, as well as a guide to those less experienced. Naturally, it is not a complete book on practice, but it covers a broad field nevertheless. The plain statements of the differ- ent steps to be taken in relation to provisional remedies, in bringing a case on for trial, in the trial itself, in entering judg- ment, in many incidental and collateral proceedings, and in conducting an appeal, are intended as titnesavers to busy practitioners and as helps to those less experienced. Com- plicated questions like foreclosure, partition, and some other topics, have been treated in such a manner that each step is pointed out clearly, so that the many pitfalls in these proceed- ings may be avoided by experienced and inexperienced alike. The portions of the book relating to topics other than court practice have been carefully selected so as to supply the mate- rial most frequently needed. The chapter on corporations, for example, supplies the information necessary to organize a ill IV PKEFACE business or an ordinary membership corporation, at a glance, and with the loss of a minimum of time. Other topics have been treated in a similar manner. The index has'been very carefully prepared and is believed to be complete and accurate. HARRY B. BRADBURY. No. 141 Broadway, New York, March 1, 1917. CONTENTS CHAPTER HEADINGS CHAPTER PAGE I. Assignment 1 II. Notices OF Claims Against Municipal Corporations 19 III. Leave to Sue 37 IV. Notices under Employers' Liability Act; Labor Law, \ § 201 76 V. Notices as Foundation for Establishing Personal Lia- bility of Directors and Stockholders of Corpora- tions 88 VI. Guardian and Ward 91 VII. Acknowledgments 133 VIII. Affidavits 149 IX. Summons and the Service Thereof 153 X. Service of Papers Other Than Summons 197 XI. Appearance 201 XII. Lis Pendens 203 XIII. Complaints 205 XIV. Answers Including Counterclaims 267 XV. Reply 277 XVI. Demurrers 279 XVII. Bills of Particulars 289 XVIII. Verification 307 XIX. Motions on the Pleadings 316 XX. Extension of Time 343 XXI. Defaults 354 XXII. Affidavit op Merits 366 XXIII. Motions and Orders : 368 XXIV. Arrest 383 XXV. Attachments ■. 427 XXVI. Tempoeahy Injunction 470 XXVII. Authentication op Copies of Records to be Used as Evidence 515 XXVIII. Depositions. 527 XXIX. Bringing Case on for Trial; Calendar Practice 580 V VI CONTENTS CHAPTBE PAGE XXX. SuBPtENAS • 602 XXXI. Notice to Produce 608 XXXII. Trials 610 XXXIII. Motion fob New Trial on Newly Discovered Evidence . . 615 XXXIV. Judgments 620 XXXV. Costs and Security Therefor 646 XXXVI. Executions 661 XXXVII. Supplementary Proceedings 685 XXXVIII. Appeal 701 XXXIX. Discontinuance 741 XL. Dismissal for Failure to Prosecute _, 745 XLI. Abatement and Revival 749 XLII. Mechanics' Liens 753 XLIII. Replevin 777 XLIV. Mortgages on Real Property and Foreclosure Thereof 783 XLV. Chattel Mortgages 966 XLVI. Bill of Sale 981 XLVII. Partition 989 XLVIII. Surplus Money Proceedings 1085 XLIX. Adoption of Minors 1099 L. Assignment for Benefit of Creditors 1104 LI. Title to Real Property 1115 LII. Party Wall Agreement 1155 LIII. Landlord and Tenant 1157 LIV. Matrimonial Actions 1183 LV. Building Agreement 1195 LVI. Attorney and Client 1199 LVII. Bonds 1202 LVIII. Power of Attorney 1207 LIX. General Releases 1212 LX. Partnerships 1214 LXI. Corporations 1224 LXII. Wills 1242 BRADBURY'S LAWYERS' MANUAL CHAPTER I ASSIGNMENT ^ FORMS NO PAGE NO. PAGE 1. General form of assignment, gage, with covenant; indi- with power of attorney 1 vidual or corporation 10 2. Assignment of account 5 8. Assignment of bond and mort- 3. Short form of assignment of ac- gage, without covenants; in- <;ounts written in books of dividual or corporation 12 account 6 9. Assignment of chattel mort- 4. Short form of assignment of ac- gage 14 count endorsed on the ac- 10. Assignment of lease — individ- count 6 ual of corporation 15 5. Assignment of judgment 7 11. Assignment of patent 16 6. Assignment of mechanic's Hen . 8 12. Assignment of patent before 7. Assignment of bond and mort- letters are granted 17 FORM NO. 1 General Form of Assignment, With Power of Attorney ^ For value received, I, James Smith, hereby sell, assign and set over unto Wilham Brown, a certain claim which I hold against John Jones of No. Street, City of , ' Note on What mat be Assigned Assignment, strictly speaking, means the transfer of any kind of property, real, personal or mixed, including choses in action. But under modem practice the term, as ordinarily used, is not appHed to transfers of real property. Con- veyancing, as applied to real property, is a topic almost invariably distinguished ^ The Power of Attorney contained in this assignment is not essential to the validity of the assignment as such. It is well to have such a Power, however, as it may avoid some difficulties in exceptional cases which cannot be anticipated when the instrument is made. 1 bradbtjey's lawyers' manual General Form of Assignment, With Power of Attorney State of , amounting to the sum of dollars, for goods sold and delivered by me to said John Jones (for work, labor and services performed by me at the special instance and request of said John Jones), and for which said John Jones agreed to pay me the sum hereinbefore specified. I do hereby constitute and appoint said William Brown my true and lawful attorney, irrevocably in my name, place and from assignment as applied to personal property, although the latter term is not infrequently used in relation to property rights which include interests in real estate. For example, we invariably speak of assignments of leases and mort- gages. A mortgage is a conveyance of real property, subject to a defeasance, and therefore an assignment of a mortgage is, in effect, a conveyance of real property. But many instruments of this na,ture are held to be personal property even though they represent an interest in, or a defeasible title to, real property. Under the common law there were many restrictions imposed on assignments, which it would serve no useful purpose to discuss. The common-law doctrine has been abrogated to a very great extent by statute. Claims for purely per- sonal injuries are the principal ones which remain unassignable under the statutes in force at the present time. A tort which involves a. property loss may be assigned. Byxbie v. Wood, 24 N. Y. 607; Jackson v. Daggett, 24 Hun, 204; Bolster v. Ithaca Street Ry. Co., 79 App. Div. 239; 79'Supp. 597; Wickham v. Roberts, 112 App. Div. 742; 98 Supp. 1092; Keeler v. Dunham, 114 App. Div. 94; 99' Supp. 669. Some doubt was thrown on this -question by the early case of Zabriskie v. Smith, 13 X. Y. 322, where it was held that a "naked tort " could not be assigned. WhOe the Zabriskie case was not in terms overruled in Byxbie v. Wood, doubt is cast on the correct- ness of the former adjudication. There is, however, a slight distinction in the cases. After acquired property may be assigned. Chester v. Jumel, 125 N. Y. 237. So may an executory contract which does not involve the rendition of special per- sonal services. Merritt v. Booklovers' Library, 89 App. Div. 454; 85 Supp. 797; New England Iron Co. v. Gilbert El. R. Co., 91 N. Y. 153; Hudson River Water Power Co. v. Glens Falls Portland Cement Co., 107 App. Div. 548; 95 Supp. 421; Quinn v. Whitney, 204 N. Y. 363; N. Y. Bank Note Co. v. Hamilton Bank Note Engraving and Printing Co., 180 N. Y. 280; Francisco v. Smith, 143 N. Y. 488; Rochester Lantern Co. v. Stiles and Parker Press Co.. 135 N. Y. 209; Janvey v. Loketz, 122 App. Div. 411; 106 Supp. 690. But a contract by which a corporation is to exploit patents under which an inventor is to secure certain benefits is per- sonal and not assignable. New York Phonograph Co. v. Davega, 127 App. Div. 222; 111 Supp. 363. Expectant estates, both vested and contingent, may be assigned. Dodge v. Stevens, 105 N. Y. 385; Beardsley v. Hotchkiss, 96 N. Y. 201; Ham v. Van Orden 84 N. Y. 257; Moore v. Littel, 41 N. Y. 66. A part of a claim may be assigned, but in such a case the debtor is entitled to have all the persons owning any part of the claim made parties to an action to ASSIGNMENT General Form of Assignment, With Power of Attorney stead, to ask for, demand, sue for, attach, levy, recover and receive all such sum and sums of money which are now and may hereafter become due, owing and payable for or on account of the matter or matters hereinbefore specified, giving and grant- ing unto said attorney full power and authority to do and per- form all and every act and thing whatsoever requisite and necessary as fully to all intents and purposes as I might or recover the portion assigned. Risley v, Phenix Bank, 83 N. Y. 318; Chambers v. Lancaster, 160 N. Y. 342; Chase v. Deering, 104 App. Div. 192; 93 Supp. 434; McLean v. Fidelity & Deposit Co., 56 Misc. 623; 107 Supp. 907; Dickinson v. Tysen, 125 App. Div. 735; Butterly v. Deering, 102 App. Div. 395; 92 Supp. 675. A portion of a promissory note cannot be assigned. King v. King, 73 App. Div. 547; 77 Supp. 40; appeal dismissed 172 N. Y. 604; see also Barcley v. Muller, 168 App. Div. 110; 153 Supp. 923. A certificate of deposit may pass by assignment without being endorsed. Riven- burgh V. First National Bank, 103 App. Div. 64; 92 Supp. 652. A chattel held by a bailee may be assigned, Freeman v. Newton, 3 E. D. Smith, 246, even though the chattel is held upon as security upon a. contingent liability, which liability has not accrued. Comley v. Dazian, 114 N. Y. 161. A right acquired by estoppel may be assigned. Meeder v. Provident Savings Life Assur. Soc, 171 N. Y. 432; aff'g 58 App. Div. 80; 68 Supp. 518. An exclusive right to lease or sell a product is not assignable. New York Bank Note Co. v. Hamilton Bank Note Co., 180 N. Y. 280. But see Liberty Wall Paper Co. V. Stoner Wall Paper Mfg. Co., 59 App. Div. 353; 69 Supp. 355; aff'd 170 N. Y. 582. An executor's commissions until ascertained and liquidated are not subject to assignment. Matter of Worthington, 141 N. Y. 9. An assignee of a foreign corporation which could not itself sue because not authorized under the New York statute, has no standing to maintain an action in New York. Lindheim v. Sitl, 33 Misc. 62; 68 Supp. 145; disapproving Mueller V. Wall Rope Co., 53 Supp. 255. An assignment of future earning merely creates an equitable lien thereon, but does not pass title to the money when subsequently earned as against an execu- tion under Code Civ. Pro., § 1391. Hirschberg v. Chic Dress Co., 72 Misc. 339; 130 Supp. 134. The future salary of a pubhc officer is not subject to assignment. Walker v. City of New York, 72 Misc. 97; 129 Supp. 1059. A general contract of guarantee may be assigned, but not a special guaranty, until after breach. Evansville National Bank v. Kaufmann, 93 N. Y. 273; Brumm V. Gilbert, 50 App. Div. 430; 64 Supp. 144. Income due to an intermediate remainderman may be assigned. Ransom v. Ransom, 70 Misc. 30; 127 Supp. 1027. Income from a trust estate cannot be assigned. Stringer v. Young, 191 N. Y. 157; Slater v. Slater, 114 App. Div. 160; 99 Supp. 564; aff'd 188 N. Y. 633; Roths- child V. Roux, 78 App. Div. 282; 79 Supp. 833. An assignment of a deposit with a landlord to secure future rent was held not BRADBURY S LAWYERS MANUAL General Form of Assignment, With Power of Attorney could do personally, with full power of substitution and revoca- tion, hereby ratifying and confirming all that the said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. All such action or actions to be taken or brought in my name or the name of said Wilham Brown, at the election of said William Brown, but at the cost and expense of said WiUiam Brown and without cost and expense to me. In Witness Whereof, I have hereunto set my hand and seal the day of 19 . James Smith (seal). assignable prior to the time the deposit became due to the tenant. Nerjea v. Roe, 15 Misc. 684; 36 Supp. 469. A mechanic's lien is assignable. First National Bank v. Mitchell, 46 Misc. 30; 93 Supp. 231. The right of a mortgagee to subsequently acquired securities, although not in existence at the time of the mortgage, may be assigned. Central Trust Co. v. West India Improvement Co., 169 N. Y. 314. Where there are mutual accounts as to which no balance has been struck one party cannot assign, his account against the other. Heiliger v. Ritter, 78 Misc. 264; 138 Supp. 212. The amount due under a contract with the State is assignable. Williams v. State of New York, 94 App. Div. 489; 88 Supp. 19. Receiver's fees cannot be assigned before they are earned. Colonial Bank v. Sutton, 79 Misc. 244; 139 Supp. 1002. The right of re-entry on land contained in a lease is assignable. Graves v. Berdan, 26 N. Y. 498; but see Nicoll v. A^. Y. and Erie B. Co., 12 N. Y. 121. A vested contingent remainder may be assigned. Strirtger v. Young, 191 N. Y. 157. Contracts in restraint of trade may be assigned. American Ice Co. v. Meckel, 109 App. Div. 93; 95 Supp. 1060; Booth & Co.v. Seibold, 37 Misc. 101; 74 Supp. 776. But an agreement to buy beer from a certain brewing company only, was held not assignable, without the defendant's consent. Jetter v. Scollan, 48 Misc. 546; 96 Supp. 274; aff'd 114 App. Div. 902; 100 Supp. 1122. A subsequently arising cause of action was held to have been transferred by an assignment of open accounts. Saxl v. Kinkade, 125 Supp. 442. The amount due under a separation agreement between husband and wife is assignable without the trustee's consent if the trustee has not obligated himself to indemnify the husband for the wife's debts. Spence v. Woods, 134 App. Div. 182; 118 Supp. 807. A right of action on an undertaking given on procuring an order of arrest is assignable. Silverstein v. Ruggiero, 26 Misc. 872; 57 Supp. 1147. "The power to assign and to transmit to personal representatives are con- vertible terms.'' Byxbie v. Wood, 24 N. Y. 607. This doctrine has been fre- quently reiterated since the Byxbie case was decided. ASSIGNMENT Assignment of Account State op 1 County of [ ss : City op J On the day of , 19 , before me per- sonally came James Smith, to me known and known to me to be the individual described in and who executed the foregoing assignment and he acknowledged to me that he executed the same for the uses and purposes therein mentioned.^ Franklin Gray, Notary Public, County of , State of FORM NO. 2 Assignment of Account Know all Men by these Presents, That I, A. B., of the City of New York, in consideration of dollars, lawful money of the United States, to me paid before the seahng 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, administrators and assigns, to his own proper use and benefit, any and all sums of money now due or to grow due upon the annexed ac- count (or specified in the books upon which this assignment is indorsed) . And I do hereby give the said C. D., his executors, adminis- trators and assigns, full power and authority for his or their own use and benefit, but at his or their own cost, to ask, de- mand, collect, receive, compound, and give acquittance for the same or any part thereof, and in my name or otherwise to 1 An assignment should always be acknowledged, if possible. It thereby be- comes self-proving and may be offered in evidence at the trial without any testi- mony as to its execution other than that contained on the face of the instrument. If the acknowledgment is taken without the State where it is to be offered in evidence there should always be a certificate of authentication of the notary's official character, as to which see chapter en Acknowledgments. BRADBURY S LAWYERS MANUAL Short Form of Assignment of Accounts prosecute and withdraw any suits or proceedings at law or in equity therefor. In witness whereof, I have hereunto set my hand and seal, this day of , 19 . In presence of A. B. (seal). {Acknowledgment as in Form No. 1, p. 6.) FORM NO. 3 Short Form of Assignment of Accounts Written in Books of Accounts. For value received, I, John Jones, hereby sell, assign and set over unto William Brown, all the following accounts against various persons and in various amounts in this (ledger) and all Slims of money now due or to grow due upon any and all said accounts from the various persons, firms and corpora- tions in this book named and I do hereby give said Wilham Brown, his executors, administrators and assigns full power and authority in my name or otherwise, but for his own use and benefit, and at his own cost, to ask for, demand, collect, receive, compound and give acquittances 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. Witness my hand and seal this day of 19 . John Jones (seal). (Add acknowledgment as in Form No. 1 on page 5.) FORM NO. 4 Short Form of Assignment of Account Endorsed on the Account For value received, I, John Jones, hereby sell, assign and set over unto William Brown, the within account against Adam Smith, for the sum of dollars, and I hereby give unto said William Brown, his executors, administrators ASSlGiNMfeN'T Assignment of Judgment and assigns, full power and authority, in my name or otherwise^ but for his own use and benefit, and at his own cost, to ask for, demand, collect, receive, compound and give acquittances 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. Witness my hand and seal this day of 19 . John Jones (seal). (Add acknowledgment as in Form No. 1 on page 5.) FORM NO. 5 Assignment of Judgment This Indenture made the day of , 19 , between A. B., of , party of the first part, and C. D., residing at No. , Street, in the City of New York, party of the second part; Witnesseth: Whereas, the said A. B., did on the day of , 19 , recover a judgment in the New York Supreme Court, against E. F. for the sum of one thousand dollars, which said judgment was duly filed and entered in the office of the Clerk of the County of New York on the day of , 19 ; Now This Indenture Witnesseth, That the said party of the first part, in consideration of the sum of (ten) dollars the receipt whereof is hereby acknowledged, has sold and by these presents does sell, assign, transfer and set over unto the said party of the second part and to his executors, adminis- trators and assigns, the said judgment and any sum or sums of money that may be had or obtained by means thereof or on any proceedings to be had thereupon. , And the said party of the first part does hereby constitute and appoint the said party of the second part, his executors, administrators and assigns, his or their true and lawful attor- ney, irrevocable, with power of substitution and revocation Bradbury's lawyers' manual Assignment of Mechanics' Lien for the use and at the proper cost and charges of the said party of the second part to ask, demand and receive and to issue execution and take all lawful ways for the recovery of the money due or to become due on the said judgment, and on payment to acknowledge satisfaction or discharge the same, and for said purpose to make and substitute one or more attor- neys under him and at their pleasure to revoke said appoint- ment or appointments, hereby ratifying and confirming all that said attorney or attorneys or substitute or substitutes shall lawfully do in the premises. And the said party of the first part does hereby covenant that there is now due on the said judgment the sum of dollars and that he will not collect or receive the same or any part thereof, nor release or discharge the said judgment, but that all such lawful proceedings therein' may be taken by the party of the second part, his executors, administrators, assigns or attorneys, saving, however, the party of the first part harm- less of and from any costs and charges in the premises. In Witness Whereof the party of the first part has here- unto set his hand and seal the day and year first above written. (Add acknowledgment, as in Form N.o. 1, p. 5.) A. B. FORM NO. 6 Assignment of Mechanics' Lien This Indenture made the day of , 19 , between A. B., of party of the first part, and C. D., residing at {give address) party of the second part; Wit- nesseth : Whereas, the said A. B., on the day of , 19 , duly filed a notice of mechanic's lien in the office of the Clerk of the County of , State of New York, for the sum of dollars, claiming a lien on the following described premises (describe premises), and claiming such lien against E. F., as contractor and G. H., as owner of the said premises as in said notice more particularly set forth. ASSIGNMENT Assignment of Mechanins' Lien Now This Indenture Witnesseth: That the party of the first part, in consideration of the sum of , dollars, to him duly paid by the party of the second part, has sold and assigned and by these presents does sell, transfer and set over unto the party of the second part, his executors, admin- istrators and assigns the said lien and the said debt of dollars, which said lien was filed to secure, owing by any of the persons mentioned in said notice, and all sums which may be had or obtained by means of said lien or said debt or claim, or on any proceedings to be had thereupon; and the said party of the first part does hereby constitute, and appoint the said party of the second part, his executors, administrators and assigns, his true and lawful attorney, irrevocable, with power of substitution and revocation, for the use and at the proper cost and charges of the said party of the second part, to ask, demand and receive and to sue for either at law or in equity and to take all lawful means for the recovery of the money due or to become due on said lien and claim, and on payment to acknowledge satisfaction and dis- charge the same, and for the purposes aforesaid to make and substitute one or more attorneys and at their pleasure to revoke such substitution, hereby ratifying and confirming all that said attorney or substitute shall lawfully do in the premises. And the said party of the first part does covenant that he will not collect or receive the said claim or amount due upon said lien or any part thereof, nor release or discharge the same, but aU such proceedings may be taken by the party of the first part, his executors, administrators, assigns or attor- neys, saving, however, the said party of the first part harmless of and from any costs and charges in the premises. In Witness Whereof, the party of the first part has here- unto set his hand and seal the day and year first above written. {Add acknowledgment as in Form No. 1.) A. B. (seal). 10 Bradbury's lawyers' manual Assignment of Bond and Mortgage, With Covenant FORM NO. 7 Assignment of Bond ^ and Mortgage, With Covenant; Individual or Corporation ^ Know all Men by these Presents, that of ^ , party of the first part, for and in consideration of dollars, lawful money of the United States, paid by of ' , party of the second part, do sell, assign and transfer unto the part of the second part, , a certain indenture of mortgage given to secure payment of the sum of dollars and interest, bearing date the day of , nineteen hundred and , made by to , recorded in the office of the of the County of , on the day of , nineteen himdred and , in liber of mortgages, of Section , page , which said mortgage covers premises , which ' The assignment of a mortgage without the bond or debt which the mortgage secures, is a nullity, and in an action to foreclose a mortgage by an assignee of the original mortgagee, if the allegation in the complaint relative to the assignment merely specifies the mortgage and not the bond, or debt, the allegation will be deemed insufficient on demurrer. Merritt v. Bartholick, 36 N. Y. 44; Wanzer v. Gary, 76 N. Y. 526; Munoz v. WUson, 111 N. Y. 295; Manne v. Carlson, 49 App. Div. 276; 63 Supp. 162; Smith v. Thompson, 118 App. Div. 6; 103 Supp. 336; Williams v. Cornell, 137 App. Div. 795; 122 Supp. 670; Lagrave v. HeUinger, 144 App. Div. 397; 129 Supp. 291; Bischoff v. Packard, 144 App. Div. 406; 129 Supp. 238. The rule is that an assignment of the bond carries with it the mortgage, but that an assignment of the mortgage does not carry with it the bond. Merritt V. Bartholick, 36 N. Y. 44. ^ Under § 6 of the Stock Corporation Law a corporation cannot issue a valid mortgage, unless it is given in part pajrment for the purchase price of the property mortgaged, without the consent of two-thirds of the stockholders, and, therefore, in taking the assignment of a corporate mortgage it is well to inquire whether the proper steps have been taken to secure the consent of the stockholders, be- cause the corporation can set up their non-consent as a defense to an action on the mortgage. London Realty Co. v. Coleman Stable Co., 140 App. Div. 495; 125 Supp. 410; Lord v. Yonkers Fuel 'Jas Co., 99 N. Y. 547. " It is good practice to insert the address of the assignor and if an individual to state the street number where such assignor resides. This information is re- quired in regard to the assignee and should be fully stated in the assignment, ASSIGNMENT 11 Assignment of Bond and Mortgage, With Covenant said premises are included in Block Number , in Section , on the Land Map of the City of New York, Together with the bond or obligation de- scribed in said mortgage, and the moneys due and to grow due thereon with the interest, To Have and to Hold the same to the part of the second part, , and to the successors legal repre- sentatives assigns of the part of the second part, forever, subject only to the proviso in said indenture of mortgage mentioned, And the part of the first part do hereby make, con- stitute and appoint the part of the second part the true and lawful, attorney, irrevocable, of the part of the first part, to have, use and take all lawful ways and means for the recovery of said money and interest, and in case of payment to discharge the same as fully as the part of the first part might or could do if these presents were not made, And the part of the first part" do hereby covenant with the part of the second part, and with the successors, legal representatives and assigns of the part of the first part, that there is now owing upon said mortgage, without offset or defense of any kind, the principal simi of dollars, with interest thereon at per centum per annum from the day of , nineteen hundred and In Witness Whereof, the part of the first part ha hereunto set hand and seal (has caused this instrument to be executed in its corporate name and its corporate seal to be hereto affixed) the day of , nineteen hun- dred and In presence of: {Add following acknowledgment if individual.) 12 Bradbury's lawyers' manual Assignment of Bond and Mortgage, Without Covenant State of County of ss: City of On this day of in the year one thousand nine hundred and , before me personally came Abel Brown, to me known, and known to me to be (one of the) the individual (s) described in and who executed the foregoing instrument and he acknowledged to me that he executed the same. Adam Smith, Notary Public, New York County. {Add following acknowledgment if corporation.) State of New York ] f SS * County of New York J On this day of one thousand nine hundred 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 of Directors of said corporation and that he signed his name thereto by like order. C. D., Notary Public, New York County. FORM NO. 8 Assignment of Bond and Mortgage, Without Covenant; Individual or Corporation.^ Know all Men by these Presents, that , party of the first part, for and in consideration of dollars, lawful money of the United States, paid by ' See notes to last preceding fonn. ASSIGNMENT 13 Assignment of Bond and Mortgage, Without Covenant party of the second part, do sell, assign and transfer unto the part of the second part, a certain inden- ture of mortgage given to secure payment of the sum of dollars and interest, bearing date the day of , nineteen hundred and , made by to , recorded in the office of the of ■the County of , on the day of , nineteen hundred and , in Uber of mortgages, of Section , page , which said mortgage covers premises , which said premises are included in Block Number , in Section , on the Land Map of the City of New York, Together with the bond or obligation de- scribed in said mortgage, and the moneys due and to grow due thereon with the interest. To Have and to Hold the same to the part of the second part, and to the successors legal representa- tives assigns of the part of the second part, forever, subject only to the proviso in said indenture of mort- gage mentioned. And the part of the first part do hereby make, constitute and appoint the part of the second part the true and lawful attorney, irrevocable, of the part of the first part, in the name of the part of the first part, or other- wise, but at the proper costs and charges of the part of the second part, to have, use and take all lawful ways and means for the recovery of said money and interest, and in case of payment to discharge the same as fully as the part of the first part might or could do if these presents were not made. In Witness Whereof, the part of the first part ha hereunto set hand and seal this day of , nineteen hundred and sixteen. In presence of: (Acknowledgment as in preceding form.) 14 Bradbury's lawyers' manual Assignment of Chattel Mortgage FORM NO. 9 Assignment of Chattel Mortgage Know all Men by 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., residing at , 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 Chattel Mortgage, bearing date the day of in the year one thousand nine hundred and made by E. F, to seciore 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, sub- ject 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. ASSIGNMENT 15 Assignment of Lease — Individual or Corporation State of County of 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. FORM NO. 10 Assignment of Lease — Individual or Corporation Know all Men by these Presents, that of ^ part of the first part, for and in consideration of dollars, lawful money of the United States, paid by of ^ part of the second part, sold and by these presents do grant, assign, and transfer, unto the part of the second part, a certain indenture of lease, bearing date the day of , nineteen hundred and , made by as landlord to as tenant and recorded in the office of the of the County of , on the day of nineteen hundred and , in liber of conveyances, of Section , page , which said lease cov- ers premises , which said premises are included in Block Number , in Section , on the Land Map of the City of New York, together with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances, To Have and to Hold the same unto the part of the second part, and assigns, from the day of , nineteen hundred and , for and during all the rest, residue and remainder yet to come of and in the ' It is good practice to insert the address of the assignor and if an individual to state the street number where such assignor resides. This information is required in regard to the assignee and should be fully stated in the assignment. 16 Bradbury's lawyers' manual Assignment of Patent term of years mentioned in the said indenture of lease, subject to the rents, covenants, conditions and pro- visions therein also mentioned^ And the part of the first part do hereby covenant, grant, promise and agree, to and with the part of the second part, the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judg- ments, executions, back rents, taxes, assessments and incima- brances whatsoever. In Witness Whereof, the part of the first part ha hereunto set hand and seal this day of , nineteen hundred and In presence of: (Acknowledgment as in Form No. 9.) FORM NO. 11 Assignment of Patent Whereas, A. B., of the city of New York 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 himdred and and mmibered And whereas, C. D. of is desirous of acquiring an interest therein. Now this indenture witnesseth, that for and in consideration of the simi of dollars, to me, the said A. B., 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., 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- ASSfGNMENT 17 Assignment of Patent before Letters are Granted 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. In testimony whereof, I hereunto set my hand and affix my seal this day of one thousand nine hun- dred and Sealed and delivered in presence of A. B. {Add acknowledgment as in Form No. 9.) FORM NO. 12 Assignment of Patent before Letters are Granted Whereas, A. B., of has made a useful invention of a for which on , 19 , he made {or, is about to make) an appUcation for Letters Patent of the United States, and which application has the serial number 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. 18 bradbuby's lawyers' manual Assignment of Patent before Letters are Granted 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 A. B. in presence of {Add acknowledgment as in Form No. 9.) CHAPTER II NOTICES OF CLAIMS AGAINST MUNICIPAL COBPORATIONS ^ FORMS NO. PAGE NO. PAGE 13. Notice on contract claim property against a second against New York City; to class city, to be presented be served on Comptroller. . 19 to the common council and 14. Notice of claim for personal served on the mayor (or injuries against the city of city clerk) and notice of in- New York; to be served on tent to sue to be served on the Comptroller and the cor- corporation counsel 27 poration counsel 23 18. Notice of claim against city of 15. Notice of claim against the Albany for personal injuries 29 city of New York for injuries 19. Notice of claim for damages to personal property; to be for injuries to person or served on the Comptroller 24 property against village, to 16. Notice of claim against City of be filed with the village Buffalo for personal injuries 25 clerk 34 17. Notice of claim for damages 20. Another form of notice against for injuries to person or village 35 FORM NO. 13 Notice on Contract Claim against New York City; to be Served on Comptroller ^ (New York City Charter, § 261, as am'd by L. 1907, c. 677.) To the Comptroller of the city of New York: Please take notice that I, John Jones, hereby give notice that I claim and demand from said city the sum of $1,000 by 1 In suits against municipal corporations, such as cities, villages, towns and counties the statutes almost invariably require that before bringing suit a written notice must be served upon the proper officer or officers of the municipality, and the courts have held quite generally that the serving of such a notice must be ^ Notices to be served in actions against the city of New York. — Under § 261 of the New York City Charter (as amended by Chapter 677 of the Laws of 1907) and Chapter 572 of the Laws of 1886, there are three different kinds of notices which must be served on the city of New York in appropriate eases before an action can 19 20 Bradbury's lawyers' manual Notice on Cohtract Claim against New York City; to be Served on Comptroller reason of an account which is hereunto annexed, and made a part of this claim, and that upon the default of the said city to pleaded, and proved, if controverted, or the complaint will be dismissed without going into the merits. In fact many of the statutes specifically require that the giving of the notice must be pleaded, and proved, if controverted. Sometimes there is a general as well as a special statute both of which apply to a single mu- nicipality. In such instances the courts have held generally that there must be a compliance with both statutes. Where a person injured is incapable by reason of his injury of giving the notice to a municipal corporation, he is entitled to a reasonable additional time within which to comply with the charter of the City in that regard, and in such a case the jury is to determine what such additional time would be reasonable under the circumstances of the case. Forsyth v. City of Oswego, 191 N. Y. 441. But a mu- nicipality does not waive the effect of a tardy presentation of a claim against it by an examination of the claimant by its proper officers as to the facts set forth in the notice of claim. Forsyth v. City of Oswego, 191 N. Y. 441. The retention of a notice of an injury by the authorities of the municipahty does not operate to waive the provisions of the statute when the notice as served is defective, as no active duty is imposed on the law officer of the city, by the statute, to return a defective notice. Purdy v. City of N. Y., 193 N. Y. 521. Service of notice by mail is insufficient. 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., of N . Y., 160 N. Y. 123; rev'g 17 App. Div. 536; 45 Supp. 592, and in be maintained against that city for any of the remedies specified in those statutes. The first of these is on a contract claim and notice need be served on the Comp- troller of the city only. (Form No. 13.) The second is for personal injuries and this notice, under § 261 of the Charter, as amended by Laws of 1907, Chapter 677, must be served on the Comptroller, and, under Chapter 572 of the Laws of 1886, it must be also served on the corpora- tion counsel. (Form No. 14.) The third is a claim for injuries to personal property as specified in § 261 of the Charter, as amended, and must be served on the Comptroller. (Form No. 15.) Section 261 of the New York City Charter provides: "§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 complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment; and in the case of claims against said city, accruing after the passage of this act, for damages for injuries to personal property, or for the destruction thereof, alleged to have been sustained by reason of the negli- gence of, or by the creation or maintenance of a nuisance by, said city, or any department, board, officer, agent or employee thereof, no action thereon shall be maintained against said city unless such action shall be commenced within one CLAIMS AGAINST MUNICIPAL CORPORATIONS 21 Notice on Contract Claim against New York City; to be Served on Comptroller I)ay the said sum of $1,000 within thirty days from the date of the service of this notice, that I shall commence an action effect overruling Babcock v. Mayor, etc., 66 Hun, 196; 45 Supp. 592. ' The com- mencement of an action is not notice. Curry v. City of Buffalo, 135 N. Y, 366. Where a city charter requires notice to be served on a different officer from the one specified in L. 1886, u. 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 ofN. Y., 88 App. Div. 606; 85 Supp. 150; Krall v. City ofN. Y., 44 App. Div. 259; 60 Supp. 661; hnt see Lewis v. City of Syracuse, 13 App. Div. 587; 43 Supp. 455. Filing of notice must be pleaded. Smith v. City of N. Y., 88 App. Div. 606; 85 Supp. 150. It is essential to the statement of a cause of action for damages for negligence against a municipal corporation that there should be appropriate allegations showing compliance with a statute requiring notice to be given to the city within a certain specified time of the injuries and the intent to sue. Winter v. City of Niagara Falls, 190 N. Y. 198; MacMullen v. City of MiddUtown, 187 N. Y. 37; Curry v. City of Buffalo, 135 N. Y. 366; Reining v. City of Buffalo, 102 N. Y. 308. It seems that the provisions of a city charter requiring notice to be given to the city of an accident by reason of which the plaintiff seeks to recover damage for negligence, cannot be waived by the officers of the municipal corporation. Winter V. City of Niagara Falls, 190 N. Y. 198. The provision of a city charter requiring that notice of an accident by which the plaintiff seeks to recover damages against the city for negligence, is not a statute of limitations within the meaning of § 396 of the Code of Civil Procedure, year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time when and place where the damages were incurred or sustained, together with a verified statement showing in detail the property alleged to have been damaged or destroyed, and the value thereof, shall have been filed with the comptroller of said city within six months after such cause of action shall have accrued." (§ 261 of the Greater New York Charter as amended by L. 1907, c. 677.) Chapter 572 of the Laws of 1886 provides: "Actions for damages in certain cities, when to be commenced; notice as to injuries, when and how filed. — § 1. No action against the mayor, aldermen and commonalty of any city in this State having fifty thousand inhabitants or over, for damages for personal injuries al- leged to have been sustained by reason of the negligence of such mayor, alder- men-and commonalty, or of any department, board, officer, agent, or employee of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action theref?- shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within, six months after such cause of action shall have accrued." (L. 1886, c. 572.) The provisions of Chapter 572 of the Laws of 1886 formerly apphed to all cities having fifty thousand inhabitants or over, without regard to the fact as to whether or not such city had officers known by the names of those specified in the statute, '22 Bradbury's lawyers' manual Notice on Contract Claim against New York City; to be Served on Comptroller against said city to recover said sum of $1,000. [Attach an ac- count in the form of an itemized bill against the city.] Dated New York, the day of , 19 . William Brown, John Jones, Attorney for Claimant, Claimant, 120 Broadway, No. , Street, New York City. Borough of , New York City. so as to be suspended during the infancy of the plaintiff; such a limitation applies to infants as well as to adults. Winter v. City of Niagara Falls, 190 N. Y. 198. Substantial compliance with the provisions of a city charter require notice to be given of an accident by reason of which the plaintiff seeks to recover dam- ages for negUgence, is all that is required, and where the failure to give the notice is caused by the inability of the person injured to strictly comply with the stat- ute, the delay may be excused. Walden v. City of Jamestoum, 178 N. Y. 213. But in such cases the facts showing the justification for the delay must be pleaded in the complaint. Winter v. City of Niagara Falls, 190 N. Y. 198. In an action for negligence against the city of New York founded upon in- juries received by falling upon an icy sidewalk, it is necessary to serve on the corporation counsel the notice required by Laws of 1886, Chapter 572, and also the notice upon the Comptroller as provided for in § 261 of the City Charter. Bemreither v. City of N. Y ., 196 N. Y. 506; aflt'g 123 App. Div. 291; 107 Supp. 1006. A complaint for damages sustained by reason of the plaintiff falling on an icy sidewalk is demurrable where it does not state that written notice was given as required by the City Charter. Sayfaus v. City of Rochester, 113 Supp. 840. A complaint in an action against a town, to recover for injuries by a defect in a highway, must allege that the highway, at the time of the accident, was within the jurisdiction of the town or its highway commissioner, and an allegation that the highway was in process of improvement by the State, under L. 1898, c. 115, as amended, is insufficient for that purpose, in the absence of an aOegation that the supervisors had accepted the highway before the time of the accident. Scott V. Tmm of North Salem, 138 App. Div. 25; 122 Supp. 497. and irrespective of the name by which the municipality was called. Curry v. City of Buffalo, 135 N. Y. 366. And in applying the statute it was held that the court would take judicial notice of the population of the cities of the State. Mertz V. City of Brooklyn, 33 St. Rep. 577. But by the repealing clause in the ConsoUdated Laws of 1909, c. 29, art. 13, § 240, the statute of 1886 quoted above was repealed in its application to all cities except New York. The chartere of all the other cities except New York now contain provisions covering the same point. In an action against the city of New York to recover for services rendered, the plaintiff proved that after the completion of the services he presented his bills to the official by whom he was employed, a deputy commissioner of water supply CLAIMS AGAINST MUNICIPAL CORPOEATIONS 23 Notice of Claim for Personal Injuries Against the City of New York FORM NO. 14 Notice of Claim for Personal Injuries Against the City of New York; to be Served on the Comptroller and the Corporation Counsel ^ (New York City Charter, § 261 ; L. 1886, c. 572) To , Comptroller of the city of New York, and , corporation counsel of the city of New York : Please take notice, that I, John Jones, hereby claimdam- ages against the city of New York in the sum of five thousand dollars for personal injuries suffered by me by reason of falling into a hole in the street known as Sixth Avenue in the borough of Manhattan, city, county and State of New York, at about sixty feet south from the southerly line of 59th Street in said borough, at about 11 o'clock in the evening^ on the day ^ of , 19 , by reason of which injuries I suffered a fracture of three ribs and of the collar bone and was other- wise injured and bruised; and unless such claim is duly ad- justed and paid within the time specified by law, I shall com- gas and electricity; that the bills were approved by him, vouchers therefor pre- pared and sent to the commissioner of the department, who also approved and transmitted the bills and vouchers to the comptroller, and that the comptroller examined 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 manner as to apprise him that if he did not act upon the same within thirty days, litigation would follow. Ruprecht v. City of N. Y., 102 App. Div. 309; 92 Supp. 421. See also notes, ante, p. 19. ' See note to Form No. 13, and also note, ante, p. 19. For a discussion of the sufficiency of such a notice see Purdy v. City of New York, 193 N. Y. 521. A defendant may take advantage of a defect in such a notice without pleading the defect in its answer. Id. ' A discrepancy of eight days in stating the date of the accident is fatal. Weis- man v. City ofN. Y., 219 N. Y. 178. 24 Bradbury's lawyers' manual Notice of Claim Against City of New York for Injuries to Personal Property mence an action against the city of New York to recover said sum of five thousand dollars by reason of said injuries. Dated, New York, the day of , 19 . William Brown, John Jones, Attorney f(yr Claimant, Claimant, 120 Broadway, No. , Street, Borough of Manhattan, Borough of , New York City. New York City. FORM NO. 15 Notice of Claim Against the City of New York for Injuries to Per- sonal Property ; to be Served on the Comptroller ^ (New York City Charter, § 261, as am'd by L. 1907, c. 677) To , Comptroller of the city of New York : I. Please take notice that I, John Jones, hereby claim damages in the sum of dollars against the city of New York for injuries to and destruction of the personal prop- erty specified in the statement below, and imless such claim is adjusted and paid within the time specified by law, I shall com- mence an action against said city of New York to recover said sum of dollars. II. That said property was damaged and destroyed on the day of , 19 , at about o'clock in the noon, at No. , Street, in the borough of , county of , in the city and State of New York. III. That the following is a statement in detail of the prop- erty damaged and destroyed, and the value thereof. [Here give in the form of a table a description of each item of property, and state after it whether damaged or destroyed, and the value of each item of property as follows:] ' See notes to Form 13, and also notes, ante, p. 19. CLAIMS AGAINST MUNICIPAL CORPORATIONS 25 Notice of Claim Against City of Buffalo for Personal Injuries Description of Each Item of Prop- erty Destroyed or Damaged. . Value (Give total value of each item before de- struction or damage.) Remarks {State whether destroyed or damaged and if the latter give the amount of the damages in dollars and cents.) Dated, New York, the William Brown, Attorney for Claimant, 120 Broadway, Borough of Manhattan, New York City. day of , 19 . John Jones, Claimant, No. , Street, Borough of , City of New York. ss: State of New York County of New York City of New York John Jones, being duly sworn, deposes and says that he is the claimant in the foregoing claim against the city of New York, and that the statements of fact contained in said claim are 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 beUeves them to be true. Sworn to before me this 1 John Jones. day of , 19 . William Smith, Notary Public, New York County. FORM NO. 16 Notice of Claim Against City of Buffalo for Personal Injuries ^ To THE Corporation Counsel of the City of Buffalo : You will please take notice that Francis G. Barnes, as ad- ministrator of the estate of Harmon H. Fisher, deceased, in- 1 From Barnes v. City of Buffalo, 197 N. Y. 602; aff'g without opinion, 128 App. Div. 916 (no opinion), in which a judgment in favor of the plaintiff was affirmed. An identical notice was served on the City Clerk. For complaint from this case see Bradbury's Rules op Pl., p. 694. 2G ' Bradbury's lawyers' manual Notice of Claim Against City of Buffalo for Personal Injuries tends to commence an action against the city of Buffalo, by reason of injuries sustained by said decedent on the 25th day of May, 1907, at about 8 o'clock in the evening of said day at a point on the westerly side of South Park Avenue about eighty- four feet south of Crystal Avenue, which injuries afterwards on the' 10th day of December, 1907, resulted in the death of said Harmon H. Fisher. Claimant further alleges that by an order of the Surrogate's Court of Erie County, made and entered on the 23d day of December, 1907, claimant was duly appointed administrator of the estate of said Harmon H. Fisher, deceased, and Letters of Administration were thereupon issued to him and that he has ever since been acting as administrator of said estate. That said decedent left him surviving as his sole heirs at law and next of kin, his wife, Harriet Fisher, and one child sixteen years of age. Claimant alleges that South Park Avenue is a public thor- oughfare in the city of Buffalo, and that it was and is the duty of the city of Buffalo to maintain South Park Avenue and to keep it in repair and in safe condition for vehicles to pass over and along in safety. That along South Park Avenue the city of Buffalo permits a double track street surface railway to be maintained and operated by the Crosstown Street Railway Company of Buffalo. That while said claimant was driving a wagon and team southerly along South Park Avenue about eighty-four feet south of Crystal Avenue at about 8 o'clock in the evening of the 25th day of May, 1907, and as said claimant was in the act of turning his team off the westerly railway track to the westerly side of said street to permit a street car approaching him in the rear going southerly to pass, the wheels of his wagon went into deep holes and over paving stones, giving him such a jolt that he was violently thrown from his wagon to the pavement, striking on the back of his head and neck and injuring him so that afterwards and on the 10th day of December, 1907, he died from the effects of said injury, and that by reason of the ss: CLAIMS AGAINST MUNICIPAL CORPORATIONS 27 Notice of Claim for Damages to Person or Property Against a Second Class City death of said decedent said decedent's estate has suffered dam- age in the sum of twenty-five thousand dollars. That said rajury was sustained wholly through the- negli- gence of the city of Buffalo in allowing said street to be in an unsafe and dangerous condition at the time of said accident and for a long time prior thereto, and without any fault or negligence on the part of said decedent. Wherefore, said claimant asks for twenty-five thousand dollars damages. Francis G. Barnes. State of New York County of Erie Francis G. Barnes, being duly sworn, says that he is the ad- ministrator of the above-named decedent's estate and that the items and specifications thereof are in all respects just and cor- rect and that no payments have been made thereon and that no set-offs exist against the same except those stated. Francis G. Barnes. Subscribed and sworn to before me this day of , 19 . Leslie W. Lake, Notary Public. FORM NO. 17 Notice of Claim for Damages for Injuries to Person or Property Against a Second Class City, to be Presented to the Common Council and served on the Mayor (or City Clerk) and Notice of Intent to Sue to be Served on Corporation Counsel ^ (Second Class Cities Law, § 244; Consolidated Laws of 1909, c. 53, art. 16, § 244) To the' common council, the mayor (or city clerk) and the corporation counsel of the city of : Please take notice that John Jones, the claimant herein, hereby makes a claim against the city of for the sum 1 The portion of the statute requiring the above notice to be given reads as follows: "The city shall not be Uable in a civil action for damages or injuries to person 28 Bradbury's lawyers' manual Notice of Claim for Damages to Person or Property Against a Second Class City of •■■ dollars, and that an action will be commenced to recover the same pursuant to law, and that the following statement of said claim is made pursuant to the statutes in such case made and provided: First: That the claimant herein, John Jones, resides at No. , Street in the city of , the county of and the State of New York. Second: That on the day of , 19 , at o'clock in the noon, at a point on the south- erly side of Avenue, about one hundred feet easterly from the intersection of said Avenue and or property, or invasion of personal or property rights, of any name or nature whatsoever, whether casual or continuing, arising at law or in equity, alleged to have been caused or sustained, in whole or in part, by or because of any omis- sion of duty, wrongful act, fault, neglect, misfeasance or negligence on the part of the city, or any of its agents, officers or employes, unless a claim therefor in writing, verified by the oath of the claimant, containing a statement of the place of residence of the claimant, by street and number, if any, otherwise such facts as will disclose such place of residence with reasonable certainty, and describing the time when, the particular place where and the circumstances under which the damages or injuries were sustained, the cause thereof, and so far as then practicable, the nature and extent thereof, shall within three months after the happening of the accident or injury or the occurrence of the act, omission, fault or neglect out of which or on account of which the claim arose, be presented to the common council and served upon the mayor or city clerk and notice of in- tention to commence an action thereon be served upon the corporation counsel, nor unless an action shall be commenced thereon within one year after the hap- pening of such accident or injury or the occurrence of such act, omission, fault or neglect; but no action shall be commenced to recover upon or enforce any such claim against the city until the expiration of three months after the service of said notice upon the corporation counsel. Nothing herein contained, however, shall be held to revive any claim or cause of action now barred by any existing re- quirement or statute of limitations nor to waive any existing limitation now applicable to any claim or cause of action against the city." (Second Class Cities Law, § 244; being part of Consofidated Laws of 1909, c. 53, art. 16, § 244.) The same statute limits the Hability of cities of the second class, in- certain in- stances, to cases where a preliminary notice has been given of the defect which caused the injury. In such cases the municipality is not liable unless it is negli- gent in repairing the defect after the notice is given. The statute should be con- sulted. It may be remarked, however, that the notice in the text is the one to be given after the injury and the other must be given be/ore the injury. The one to be given before the injury need not necessarily be in writing, but the giving of such notice must be pleaded in the complaint, and it is of course advisable to give the preliminary notice in writing. ss: CLAIMS AGAINST MUNICIPAL CORPORATIONS 29 Notice of Claim Against City of Albany for Personal Injuries Street, in the city of , in the county of , in the State of New York, the claimant suffered injuries to the extent of dollars in the following manner: [Here state with particularity and precision the circumstances under which the damages or injuries were Sustained, the cause thereof and the nature and extent thereof. Great care should be taken to have this statement complete and ac- curate.] Dated the day of , 19 . John Jones, Claimant. State of New York County of John Jones, being duly sworn, deposes and says that he is the claimant making the foregoing claim; that he has read the same and knows the contents thereof, and that the statements contained in said claim are true of his own knowledge, except such allegations as are therein stated to be made on informa- tion and beUef, and as to such allegations, he believes them to be true. Sworn to before me this John Jones. day of , 19 . William Smith, Notary Public, County. FORM NO. 18 Notice of Claim Against City of Albany for Personal Injuries * To THE Honorable the Common Council or the City of Albany : (jentlemen: The undersigned, Michael E. Higgins, who re- sides at No. 346 Madison Avenue, in the city of Albany, N. Y., ' From Higgins v. City of Albany, 198 N. Y. 540; rev'g without opinion, 130 App. Div. 276; 114 Supp. 516, and aff'g the judgment in favor of the plaintiff en- tered upon the report of a referee, on the authority of Missano v. Mayor, etc., oj 30 Bradbury's lawyers' manual Notice of Claim Against City of Albany for Personal Injuries by this, his petition, respectfully alleges and shows to yoxir honorable body: That he is now and was at all times hereinafter mentioned the Chief of the Fire Department of the said city of Albany. That at or about the hour of one o'clock in the morning of the 5th day of July, 1905, in the discharge of his official duties as such Chief, he was obliged to, and did respond to an alarm of fire transmitted from signal station No. 61 of the Albany Fire Alarm Signal System, situated at the comer of Rensselaer and South Pearl Streets in said city. That in proceeding to the scene of said fire by means of a conveyance consisting of a wagon drawn by a horse which was customarily used by him for such purpose, and while seated in said wagon and carefully and prudently driving said horse along the southerly side of said Madison Avenue in an easterly direction, and when your petitioner arrived at a point on said street immediately east of the easterly side of South Pearl Street, his further progress was interrupted by an obstruction which consisted of several metal pipes which at that time cov- ered a space of the pavement adjoining the southerly curb of Madison Avenue near its intersection with the easterly curb of South Pearl Street, about seven or eight feet in width, and from twelve to fifteen feet in length, said pipes being intended for use as water mains and each being about one foot in diam- eter and from twelve to fifteen feet long. That owing to the darkness which then and there prevailed such obstruction, composed of said pipes or mains, was not visible to yom- petitioner until said horse which he was then . driving almost came in contact therewith. That as soon as he discovered said obstruction and for the purpose of avoiding such contact and resulting danger, your petitioner immediately turned said horse to the left or north, but proceeded only a few feet when said horse ran into and upon another obstruction which could not be seen by your petitioner in the darkness but which he subsequently learned consisted of N. Y., 160 N. Y. 123, and Sheehy v. Cily of N. Y., 160 N. Y. 139. For complaint from Higgins v. City of Albany (supra), see Bradbury's Rules Pl., p. 674. CLAIMS AGAINST MUNICIPAL CORPORATIONS 31 Notice of Claim Against City of Albany for Personal Injuries an accumulation of sand and crushed stone, covering the pave- ment of the carriageway of Madison Avenue from the northerly curbstone thereof to a line south of the middle of said street, and extending from a point about twenty feet east of South Pearl Street a distance of at least 150 feet in an easterly direc- tion, with an average height of at least four feet; said entire carriageway, when unencumbered, being about forty feet in width. That as your petitioner is informed and verily beUeves said sand and crushed stone had been unlawfully deposited on said public highway several weeks prior to said 5th day of July, 1905, with the knowledge and consent of the city of Al- bany, and had been unlawfully and negligently permitted by said city, its officers, agents and employes, to remain in the carriageway of said street during said period of several weeks without any safeguard for the protection of persons or vehicles lawfully making use of said street or for the purpose of warning them of its existence and constituted a menace to life and prop- erty. That, as your petitioner is informed and verily beheves, notice of the obstructed condition of such street was actually given to the Commissioner of PubUc Works of said city prior to said 5th day of July, 1905, and there was a failure and neg- lect on his part, within a reasonable time after the giving of such notice, to remove said obstruction; and your petitioner further alleges that even if no such actual notice were given and in the absence thereof such obstructed condition existed for so long a period that the same should have been discovered and remedied by said city in the exercise of reasonable care and diligence. That at the time when your petitioner approached said ob- struction there were no lights or other signals thereon or in the vicinity thereof, or any watchman or other person guarding the same to warn him of the dangerous condition of the high- way caused thereby, and your petitioner was not at that time aware of the existence of said obstructed condition of said carriageway but assumed, as he had a right to assume, that it was free and clear and in a suitable condition for public travel. That as soon as the horse which your petitioner was driving 32 Bradbury's lawyers' manual Notice of Claim Against City of Albany for Personal Injuries with care and prudence, as aforesaid,, became imbedded in said pile of sand and moved forward, the wheels on the left or north side of the wagon became elevated several feet above the level of said street while the wheels on the south or right side of the Wagon rolled over the surface of the pavement, thus forc- ing the box of the wagon into an incHned position relative to the pavement, and in consequence thereof when the horse (ap- parently frightened by his surroundings) suddenly turned to the right for the piupose of extricating himself, the wagon leaned over at a steeper incUne and was almost capsized and your petitioner, who still clung to the reins, was imable to re- tain his seat and was thrown headlong out of the wagon to the ground, striking the same with great force and violence. That by reason and as the result of said fall your petitioner sustained painful and serious personal injuries from which he has not yet and, as he is informed and verily believes, never wUl fully and completely recover. That among the injuries so sustained your petitioner's coUar bone on his right side was fractured, several ribs on the right side of his body were displaced, a large blood tmuor formed on the right side of his head, his right leg and the right side of his body were bruised and cut in various places and his physical and nervous system received an acute shock from which he still suffers and, as he is advised, will continue to suffer as long as he lives. That in consequence of said injuries your petitioner was con- fined to bed for several weeks suffering severe pain and agony, and during said time and thereafter required and received medical and surgical attendance and nm-sing on account of which he was also obliged to and did incur large expenditures of money without reimbursement. That said injuries hereinbefore described were caused solely by the neghgence of the city of Albany, its officers, employes and agents, without any negligence on the part of your peti- tioner contributing thereto. Your petitioner, therefore, pm-suant to the provisions of § 461 of Chapter 182 of the Laws of the State of New York, passed CLAIMS AGAINST MUNICIPAL CORPORATIONS 33 Notice of Claim Against City of Albany for Personal Injuries March 31, 1898, and entitled "An Act for the government of cities of the second class," hereby respectfully presents to the Common Council of the city of Albany his claim for ten thousand dollars damages for injuries to his person caused by the negligence of the city of Albany, its officers, employes and agents. That the time when and the particular place where, and the circumstances under which the damages and injuries were sustained, and the cause thereof, as hereinabove specifically described, and the nature and extent of the said damages and injuries, so far as it is now practicable to state the same, are hereinabove set forth. Dated Albany, N. Y., October 2, 1905. M. E. HiGGINS, Petitioner and Claimant. Place of residence. No. 346 Madison Avenue, Albany, N. Y. State op New York 1 City and County of Albany J Michael E. Higgins, being duly sworn, deposes and says that he is the petitioner named herein. That he had read the foregoing petition and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and beUef, and as to those matters he believes it to be true. M. E. Higgins. Subscribed and sworn to before me this day of , 19 . Lewis J. Miller, Commissioner of Deeds, Albany, N. Y. 34 bkadbury's lawyers' manual Notice of Claim for Damages Against Village FORM NO. 19 JJotice of Claim for Damages for lajuries to Person or Property Against Village, to be Filed with the Village Clerk (Village Law,, § 341; Consolidated Laws of 1909,, c. 64, art. 15, § 341.) 1 To the clerk of the village of Please take notice, that the undersigned, Adam Anderson, hereby makes a claim against the village of , for dam- ages in the sum of dollars for personal injuries (injuries to property) arising upon the following facts [state fully and with precision the time, place and extent of the injury and the cause thereof] and that an action will be begun against said village to recover said sum. Dated the day of , 19 . Adam Anderson, , [Post office address.] State of New York 1 County of J Adam Anderson, being duly sworn, deposes and says that he is the claimant who executed the foregoing notice of claim; that the statements of fact therein contained are true to his own knowledge. Sworn to before me this Adam Anderson, day of , 19 . William Brown, Notary Public, County of ' The statute cited above reads as follows: "No action shall be maintained 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 employe 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 received CLAIMS AGAINST MUNICIPAL CORPORATIONS 35 Another Form of Notice Against Village FORM NO. 20 Another Form of Notice Against Village ' To James H. Wescott, President of the Village of Norwich, N. Y., and the Board of Trustees of said Village: Please take notice, that the claim of Frances E. Coye, of the town of Smjrrna, New York, is herewith and hereby- presented to you and to the above-mentioned village for per- sonal damages received by her while walking upon one of the public streets of the village of Norwich, N. Y. The injury for which this claim is made occurred on the 22d day of February, 1904, on the sidewalk on the west side of Guernsey Street adjoining the residence of S. M. Hand, M. D., and was caused by the slippery, icy, dangerous and unsafe condition of the said sidewalk. This claimant suffered grievous bodily injury and her wrist received a serious fracture. The said injury happened entirely through the negligence of 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." See Carson v. Village of Dresden, 202 N. Y. 414. See also.next succeeding form and notes thereto. 1 From Coye v. Village of Norwich, 198 N. Y. 573; aff'g without opinion, 128 App. Div. 932 (no opinion), in which a judgment in favor of the plaintiff was affirmed. For complaint from this case see Bradbury's Rules Pl., p. 661. See also pre- ceding form and notes thereto. 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. Bauber v. Village of Wellsville, 83 App. Div. 581; 82 Supp. 9. Thus where the notice stated that the person fell 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 Saugerties, 70 Hun, 589; 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 Saugerties, 70 Hun, 589; 24 Supp. 182. 36 bradbuby's lawyers' manual Another Form of Notice Against Village the said village of Norwich, N. Y., and its officers, and with- out any contributory negligence on the part of this claimant. Claimant alleges and claims damages to her person and for medical treatment and attendance in the sum of three thousand dollars. Dated February 23, 1904. her Frances X Coye, mark. Witness to mark, Arthur J. Truman. State of New York County of Chenango J Frances Coye, being duly sworn, deposes and says that she is the claimant mentioned in the foregoing statement of claim, that shTe has read the same and knows the contents thereof and that the same is true of her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters she believes it to be true. Sworn to before me this 1 her day of , 19 . J Frances X Coye, James P. Hill, mark. Notary Public. Witness to mark, Arthur J. Truman. CHAPTER III LEAVE TO SUE FORMS NO. PAGE Article A. — Application by a Receiver (other than in Sup- plementary Proceedings) for Permission to Sue. 21. Notice of motion by receiver for permission to sue 38 22. Petition by receiver for per- mission to sue 40 2.3. Affidavit (to be used instead of the foregoing petition) .... 44 24. Order permitting action to be brought by receiver 46 25. Bond for costs where receiver has not sufficient funds to pay them 48 Article B. — ^Motion for Permis- sion to Sue Receiver. 26. Notice of motion for permis- sion to sue receiver 50 27. Affidavit on motion for per- mission to sue receiver. ... 51 28. Order permitting action to be brought against receiver. . . 53 Article C. — -Application by Re- ceiver IN Supplementary Pro- ceedings for Permission to Sue. 29. Notice of motion, by receiver in supplementary proceed- ings for permission to sue . . 54 30. Petition by receiver in supple- mentary proceedings for permission to sue 56 31. Request of creditor that action be brought .58 32. Bond for costs upon failure of NO. page creditor to make written request that action be brought 59 33. Order permitting receiver in supplementary proceedings to sue 62 Article D. — -Application for Leave to Sub as a Poor Per- son. 34. Petition on application is made before suit is begun to sue as poor person 64 35. Certificate of counselor at law annexed to foregoing peti- tion 65 36. Order permitting plaintiff to sue as a poor person when application made before ac- tion brought 66 37. Notice of motion when appli- cation is made after an ac- tion is brought 67 Article E. — Motion for Leave TO Sue on a Judgment Under Code Civ. Pro., § 1913. 38. Notice of motion, for leave to sue on judgment 68 39. AflSdavit on motion for order with prayer for permission to serve notice of motion other than personally 70 40. Order for service of notice of motion otherwise than per- sonally 72 41 . Order granting leave to sue on judgment 73 37 38 Bradbury's lawyers' manual Notice of Motion by Receiver for Permission to Sue ARTICLE A. APPLICATION BY A RECEIVER (OTHER THAN IN SUP- PLEMENTARY PROCEEDINGS) JFOR PERMISSION TO SUE ' FORM NO. 21 Notice of Motion ^ by Receiver for Permission to Sue New York Supreme Court, New York County. Edwin Anderson,' Plaintiff, against Robert Barton, Defendant. J Sirs: Please take notice that on the annexed petition (affidavit) of Franklin Carter, verified (sworn to) the day of , 19 , and on all proceedings had in the above-entitled action a motion will be made at Special Term, Part I, of the ' An action should never be brought by or against a receiver without first pro- curing a written order of court permitting the action to be brought, unless in the particular case there is clear statutory authority for proceeding without leave of court. As a receiver is merely an arm of the court he should not start a litigation without being authorized by his principal, the court. The result of disregarding this precaution may sometimes be merely that the receiver will be held responsible personally for the costs and expenses of an unsuccessful litigation. In other cases the proceeding may be entirely dismissed as unauthorized without an examina- tion of the merits, in which case the costs and expenses would again fall on the receiver personally. 2 Whether or not a notice of the application is required depends upon the cir- cumstances of a particular case. Ordinarily notice is not necessary, although the court may, in any case, direct that notice be given to any party interested. Un- less the circumstances in a special instance clearly indicate that notice is proper or advisable, or some statute or rule of court specifically requires it, the practice is to apply for the order ex -parte. The court may then direct that notice be given. In any event an ex -parte order may always be reviewed by the court, or by the judge granting it, if objection is made. The subject of notice of an application by a receiver for permission to sue does not seem to be covered by any general statute or rule of court. The conditions under which receivers may apply for such orders are governed somewhat by Rules 77 and 78 of the General Rules of Practice of the Supreme Court. ' If the receiver is appointed in an action the title of the papers used on the Leave tO sue 39 Notice of Motion by'Reoeiver for Permission to Sue New York Supreme Court, to be held in the County Court House, New York County, on the day of , 19 , at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard, for an order authorizing and directing Franklin Carter, as receiver of the Company, to bring an action in the New York Supreme Court against George Doremus for (here state briefly the cause of action) and for such other, further and different relief as may be proper (with the costs of this motion) . Dated, , 19 . To Isaac Finelite, Esq., Yours, etc.. Attorney for Hiram Endicott, 320 Broadway, Attorney for Receiver, New York City. 60 Wall Street, New York City. application may be the same as the original action. Or where two or more actions or proceedings are involved the title may be as follows: New York Supreme Court, New York County. In the matter of the application of Franklin Carter, as Receiver of the Company, for per- mission to bring an action against George Doremus. It would be safe practice in any case to use both the title in which the proceed- ing is brought and also the above title, one under the other, for if the court should hold, in a particular case, that the application for permission to sue was in inde- pendent special proceeding, then the title given in this note would be proper and the other one might be defective. If both were used the one which was unnecessary would undoubtedly be treated as surplusage by the court. 40 BRADBURY'S LAWYERS' MANUAL Petition by Receiver for Permission to Sue FORM NO. 22 Petition by Receiver for Permission to Sue New York Supreme Court, New York County. Edwin Anderson/ Plaintiff, against RoBEET Barton, Defendant. In the Matter of the AppUcation of Franklin Carter, as Receiver of the Company, for Permission to Bring an Action against George Doremus. To the Honorable Supreme Court, New York Coimty: ^ Your Petitioner, Franklin Carter, respectfully shows to the Court: I. That on the day of , 19 , by an order duly made by the New York Supreme Court and duly filed and entered in the office of the Clerk of the County of New York on that day your petitioner was duly appointed permanent (temporary) receiver of the ' See note to the preceding fonn as to the title of the application. 2 If the application is made in the action in which the receiver was appointed it may be in the form of an affidavit merely instead of a petition. If an affidavit the beginning would be: State OF New YoKK 1 County op New York J Franklin Carter, being duly sworn, says, etc. At the end of the affidavit there would be merely the signature of the affiant and of the notary in the following form: Sworn to before me this Franklin Carter. day of , 19 . Ignatz Johnson, Notary Public, New York County. LEAVE TO SUE 41 Petition by Receiver for Permission to Sue Company, a domestic corporation (in proceedings for the volun- tary dissolution of said corporation) {or state concisely the nature of the proceeding or action in which the receiver was appointed); that thereafter your petitioner duly qualified as such receiver by filing his bond as such, which was first duly approved by the court, as to form, the sufficiency of the siffeties and the amount thereof, and your petitioner is still such receiver. II. Your petitioner verily believes and is advised by his counsel herein, Hiram Endicott^ Esq., that as such receiver he has a valid and meritorious cause of action against George Doremus upon the following cause of action: {state the cause of action concisely in this place). III. On information and belief ' your petitioner alleges the following facts as the basis of the proposed action against said ^ When the apphcation is made in the form of a petition as above, a mere state- ment that the allegations are on information and behef is sufficient for the body of the petition. As this is a petition on which the court is to be asked to take some present affirmative action, however, the affidavit of verification at the end of the petition should show the sources of the information and the ground of the behef, and either there should be affidavits attached of those who have positive informa- tion, or it should be shown that it is impossible to get affidavits of those who have such knowledge. If this apphcation was made in the form of an affidavit instead of in the form of a petition, the sources of the information and the ground of the belief as to all statements made on information and belief should be contained in the body of the affidavit. When a pleading such as a complaint, petition, answer, etc., is to be used merely as a pleading, that is, to raise an issue which is to be determined by the court upon parol proof heard in open court, then an allegation on information and belief is usually sufficient without disclosing the sources of the ' information or the ground of the belief. There are some exceptions to this rule where the pleading is verified by an officer of a foreign corporation, or by someone other than the party pleading in person, in which cases the affidavit of verification must show the sources of the information and the ground of the belief of the person making the affidavit of verification. But when a pleading is to be used to set the court in motion to grant some present relief, such as an injunction order, a warrant of attachment, or an order of arrest; or where final action is to be taken as in the present case, on the papers alone, then the pleadings to be effective must conform to the rule that the sources of the information and the ground of the be- hef of statements made on information and behef, must not only be disclosed, but they must be supported by the written testimony of those who have actual knowl- edge. While the courts will in some cases accept information and behef affidavits, if the sources of the information and the ground of the behef are stated, even though it is impossible to get the supporting affidavits of those who have positive knowledge, in all such cases it is absolutely essential to show that it is impossible 42 Bradbury's lawyers' manual Petition by Receiver for Permission to Sue George Doremus: (here set forth concisely but fully the facts on which the action is based). IV. That your petitioner as such receiver has sufficient property in his actual possession to secure the person against whom the action is to be brought for any costs which he may recover against your petitioner; ' and. such property consists of the following : (describe it concisely, so the court can determine from its amount or valus that there is sufficient to pay any costs which might be awarded against the receiver in the proposed action) . V. That your petitioner has made dihgent inquiry and verily beheves that said George Doremus, is a man of responsibility and that any judgment which may be recovered against said Doremus in said proposed action can be collected. {Or other- to get such supporting affidavits. It is not sufficient to show that it will be in- convenient to get such affidavits. It must appear either that the persons who have such positive knowledge have been requested to make an affidavit and have re- fused to do so, or that, the person is without the jurisdiction of the court, and that it will be impossible to get an affidavit from him in time to be used on the applica- tion, or some other equally good reason must be stated for failure to produce the affidavit of the person who has positive knowledge. Where the information is conveyed to the person making the affidavit by word of mouth, the affiant should repeat as nearly as he can the statements made to him by the person who had positive knowledge. If the information was conveyed by letter or telegram, either the original letter or telegram, or a sworn copy thereof, should be attached to the papers in all cases. The same rule applies where the information is derived from documents on file, in which case copies thereof should be attached. If the information is conveyed over the telephone, there should be a positive statement that the affiant is acquainted with the voice of the person who conveyed the in- formation to him, and that it was the person described as the one who has positive information who thus communicated with him. In some cases affidavits on in- formation and belief unless supported by the written testimony of those who have positive information will not be received at all. But they will be accepted in most ex parte applications when properly drawn in conformity with the rules already laid down. It should also appear from all affidavits that the person who makes the affidavit is in a position to have the information as to which he avers. It may appear from the affidavit itself that he is so connected with the facts as to which he swears that he must have such information, but if this does not clearly appear, there should be appropriated allegations showing clearly the connection of the affiant with the matters as to which he swears. ' See Rule 78 of the General Rules of Practice. If the receiver has not sufficient property to pay any costs which may be awarded against him in the proposed action the court may, and almost invariably does, require the receiver to give a bond as a condition of granting the order. LEAVE TO SUE 43 Petition by Receiver for Permission to Sue wise show that the relief which it is proposed to ask can be secured in case of a successful litigation.) VI. That no previous application for such an order has been made.' WHEREroRE your petitioner prays this court that an order may be entered permitting him as such receiver to bring an action against George Doremus upon the cause of action herein- before stated, and for such other, further and different rehef as may be proper (with the costs of this motion). Dated, 19 . Franklin Carter, Hiram Endicott, Receiver. Attorney for Receiver, 60 Wall St., New York City. State of New York 1 f SS ' County of New York j Franklin Carter, being duly sworn, says that he is the petitioner herein; that he has read and knows the contents of the foregoing petition, and that the same 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 mat- ters he believes it to be true. That the sources of his infor- mation and the ground of his belief as to such matters as are therein stated to be alleged on information and belief are the affidavits of John Doe and Richard Roe, verified respectively the day of , 19 , and the day of 19 , which are hereunto annexed and made a part of this petition. (State any other documents or sources from which the information was derived.) Sworn to before me this ] Franklin Carter. day of 19 Adaih Johnson, Nqta/ry Public, New York County. 1 This is necessary only when the appHcation is made without notice. Rule 25 Gen. Rules of Prac. 44 Bradbury's lawyers' manual Affidavit (to be used Instead of the Foregoing Petition) FORM NO. 23 Affidavit (to be used Instead of the Foregoing Petition) ^ New York Supreme Court, New York County. Edwin Anderson, Plaintiff, against Robert Barton, Defendant. In the Matter of the AppUcation of Franklin Carter, as Receiver of the Company for permis- sion to bring an action against George Doremus. State of New York ] > go • County of New York J Franklin Carter, being duly sworn, says : First: That on the day of 19 , by an order duly made by the New York Supreme Court, and duly filed and entered in the office of the clerk of the County of New York on that day, deponent was duly appointed permanent (temporary) receiver of the company, a domestic corporation, in proceedings for the voluntary dissolution of said corporation {or state concisely the nature of the proceeding or action in which the receiver was appointed); that thereafter deponent duly qualified as such receiver, by filing his bond as such in the sum, with the conditions, and in the form duly ap- proved by the court, and your deponent is still such receiver. ' See notes to the foregoing petition, Form No. 22. LEAVE TO SUE 45 Affidavit (to be used Instead of the Foregoing Petition) Second: Deponent verily believes and he is advised by his counsel, Hiram Endicott, Esq., that as such receiver he has a valid and meritorious cause of action against George Doremus, upon the following cause of action: (state the cause of action concisely in this place). Third: on information and belief deponent alleges the fol- lowing facts as the basis of the proposed action against said George Doremus: (here set forth concisely, but fully, the facts on which the action is based) . The sources of deponent's knowledge and the ground of his behef as to the facts stated are the affidavits of Richard Roe, verified the day of , 1900, and John Doe, verified the day of , 19 , hereunto an- nexed and made a part of this application. (If there are any other sources of information or ground of belief, state them fully.) Fourth: Deponent as such receiver has sufficient property in his actual possession to secure the person against whom the action is to be brought for any costs which he may recover against deponent, and such property consists of the following: (describe the property concisely, so the court can determine from its amount or value that it is sufficient to pay any costs which might be awarded against the receiver in the proposed action) . Fifth: No previous application for such an order has been made. Sworn before me this day of , 19 . Adam Johnson, Notary Public, New York County. Franklin Carter. 46 Bradbury's lawyers' manual Order Permitting Action to be Brought by Receiver. FORM NO. 24 Order Permitting Action to be Brought by Receiver At a Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, in the County Court House therein, on the day of , 1916. Present: Hon. Peter A. Hendrick, Justice. Edwin Anderson, Plaintiff, against Robert Barton, Defendant.^ In the Matter of the Apphcatiop ' of Franklin Carter, as Receiver of the Company, for per- mission to bring an action against George Doremus. Franklin Carter, as Receiver of the Com- pany, having duly and regularly made a motion for permission to bring an action against George Doremus for {here concisely state the cause of action) and said motion corning on regularly to be heard, Now, after reading and filing the notice of motion dated , 19 ; the petition (affidavit) of Franklin Carter, verified (sworn to) the day of , 19 , and the affidavits of Richard Roe, sworn to the day of , 19 , and John Doe, sworn to the day of , 19, in support of said petition, and the affidavit of Albert Atkins, sworn to the day of , 19 , showing due service of said motion papers on ' See notes to Form No. 22 preceding. LEAVE TO SUE 47 Order Permitting Action to be Brought by Receiver , in favor of said motion (and the affidavit of Robert Barton, sworn to the day of , 19 , in opposition thereto) and after hearing Hiram Endicott, Esq., attorney for said receiver in favor of said motion, and no one appearing in opposition thereto (and William Brown, Esq., attorney for , in opposition thereto), and due deliberation having been had, now on motion of Hiram Endicott, Esq., attorney for said receiver, it is hereby Ordered, that said Franklin Carter as receiver of the Company be and he hereby is authorized, em- powered and directed to bring an action in the Court against George Doremus for {here state concisely the cause of action) . (And it is eurther ordered that before beginning said action said receiver file with the clerk of this court a bond with sufficient sureties to be iapproved by the court in the sum of ^ dollars, upon condition that said receiver will pay to said George Doremus any costs which may be awarded against said receiver in said proposed action to be brought against said George Doremus, and that said receiver cause to be served upon the said George Doremus, or his at- torney, at least two days before said action is begun, a copy of said bond with a notice of the filing thereof.) ^ (It is further ordered that said Receiver recover of $10 costs of this motion.) Enter P. A. H., J. S. C. ' Such bond is required if the receiver has not sufficient funds in his hands to pay any costs. which may be awarded against him in the proposed suit. See Rule 78 of the General Rules of Practice. / 48 Bradbury's lawyers' manual Bond for Costs Where Receiver has not Sufficient Funds to Pay Them FORM NO. 25 Bond for Costs Where Receiver has not Sufficient Funds to Pay Them (Rule 78 of the General Rules of Practice) (Title the same as Notice of Motion, Form No. 22 preceding.) Know All Men by these Presents: That Whereas the above- named FrankUn Garter as receiver of the Company, has appUed to the Supreme Court for permission to bring an action against George Doremus. Now, we, John Kenyon, merchant, residing at No. , Street, Borough of Manhattan, City, County and State of New York, and Lucas Merwin, merchant, residing at No. , Street, Borough of Manhattan, City, County and State of New York, pursuant to Rule 79 of the General Rules of Prac- tice of the New York Supreme Court, jointly and severally acknowledge ourselves bound to pay to' and undertake and promise that we will pay to said George Doremus any sum as costs which he may recover against said receiver in said action thus to be brought. (Not exceeding the sum of $500.00.) Witness our hands and seals at this day of , 19 . John Kenyon (seal). Lucas Merwin (seal). State op New York ' SS ' County of New York John Kenyon, being duly sworn, says that he is one of the sureties above named and who subscribed the foregoing bond; that he is a resident of and a freeholder within the State of New York, and is worth the sum of one thousand 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 John Kenyon. day of , 19 . Adam Johnson, Notary Public, New York County. LEAVE TO SUE 49 Bond for Costs Where Receiver has not Sufficient Funds to Pay Them State of New York ] r SS ' County or New York J Lucas Merwin, being duly sworn, says that he is one of the sureties above named and who subscribed the foregoing bond; that he is a resident of and a householder within the State of New York, and is worth the sum of one thousand dollars over 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 1 Lucas Merwin. day of , 19 Adam Johnson, Notary Public, New York City. State of New York County of New York On the day of , 19 , before me per- sonally appeared the above-named John Kenyon and Lucas Merwin, to me known and known to me to be the individuals described in and who executed the foregoing bond, and they severally acknowledged to me that they executed the same. Adam Johnson, Notary Public, New York City. I approve the within bond both as to form and the suffi- ciency of the sureties. Dated, , 19. Peter A. Hendrick, Justice of the Supreme Court of the State of New York. ss: 50 bradbuky's lawyers' manual Notice of Motion for Permission to Sue Receiver ARTICLE B. MOTION FOR PERMISSION TO SUE RECEIVER FORM NO. 26 Notice of Motion for Permission to Sue Receiver Supreme Court, New York County. Adam Brown, ^ Plaintiff, against Charles Dowd, Defendant. Please take notice, that on the annexed affidavit of George Howard, sworn to the day of , 19 , and on all proceedings had in the above-entitled action, a motion will be made at Special Term, Part I, of the New York Supreme Com-t, to be held in and for the County of New York, at the County Coiu-thouse therein, on the day of ,19 , at 10:30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order per- 1 The necessity of securing permission to sue before bringing an action against a receiver is pointed out in Di Chiara v. Sutherland, 62 Misc. 555; 115 Supp. 622. That case reviews tEe conflicting authorities on the question of whether or not it is necessary to allege in the complaint, in an action against a receiver, that leave of court has been granted to bring the action. The conclusion is reached on con- flicting decisions that such an allegation is not necessary. It is recognized, how- ever, that it is contempt of court to bring an action against a receiver appointed by a state court without leave first secured from the court. As against certain receivers appointed by the Federal courts it is pointed out that an Act of Con- gress has done away with the necessity of securing such permission. 2 The title of the action in which the receiver was appointed. It is safe practice to add a sub-title as follows: In the Matter of the Application of George Howard, for pennission to sue Eli Franklin, as Receiver of Charles Down. Careful attorneys usually adopt the plan of using both titles. LEAVE TO SUE 51 Affidavit on Motion for Permission to Sue Receiver mitting George Howard to sue Eli Franklin as receiver of Charles Dowd, above named, for (here briefly state the cause of action) and for such other, further or different relief as may- be proper, with the costs of this motion. Dated, , 19 . Yours, &c., William Watson, Esq., Attorney for George Howard, To 52 WaU Street, Eli Franklin, Esq., Borough of Manhattan, Receiver, or City of New York. ■ William Williams, Esq., Attorney for Receiver. FORM NO. 27 Affidavit on Motion for Permission to Sue Receiver {Title same as notice of motion preceding) State of New York County of New York J George Howard, being duly sworn, says: First: That by an order in the above-entitled action, duly filed and entered in the office of the Clerk of the County of New York, on the day of , 19 , Eli Franklin was duly appointed receiver of the above-named Charles Dowd; that said receiver duly qualified as such by filing his bond duly approved by the court, and is still such re- ceiver. Second: That deponent desires to sue said receiver upon the following cause of action : (here set forth in the form of a com- plaint the cause of action upon which it is desired to sue). Third: That upon the day of , 19 , at , deponent duly demanded of said receiver that said receiver pay to deponent said sum of money {or demanded that said receiver deliver to deponent the property 52 Bradbury's lawyers' manual Affidavit on Motion for Permission to Sue Receiver above described; or otherwise state that the applicant has de- manded of the. receiver the relief which it is proposed to demand in the action to be brought), and that said receiver has failed and refused in all respects to comply with said demand.* Fourth: That he has fully and fairly stated the case in the foregoing proposed action to WUliam Watson, Esq., his coun- sel in said proposed action, who resides at No. , Street, in the city of New York, and that deponent has a good cause of action against said receiver as he is advised by said counsel after said statements made as aforesaid and verily believes to be true. Fifth: That no previous application for such an order has been made.^ Sixth: Deponent therefore prays that an order may be en- tered giving him permission to sue said receiver on the cause of action above stated. George Howard. Sworn' to before me this day of , 19 Eli Whitney, Notary Public, New York County. ^ This is required when the application is made ex parte. LEAVE TO SUE 53 Order Permitting Action to be Brought Against Receiver FORM NO. 28 Order Permitting Action to be Brought Against Receiver ^ At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, in the County Court- house, on the day of , 1909. Present: Hon. Peter A. Hendrick, Justice. Adam Brown, ^ Plaintiff, against Charles Dowd, Defendant. A motion having been regularly made by George Howard for permission to bring an action against Eli Franklin as receiver of the above-named Charles Dowd, and said motion having come on regularly to be heard, now on reading and filing the notice of motion, dated the day of ,19 , and the affidavit of George Howard, sworn to the day of > 19 , in favor of said motion, and the affidavit of ' , sworn to the day of , 19 , in opposition thereto, and after hearing WiUiam Watson, Esq., attorney for said George How- ard, in favor of said motion, and Isaac Johnson, Esq., attorney for (said receiver) in opposition thereto, and due deliberation having been had, it is hereby Ordered, that said motion be and hereby is granted, and '■ It would seem that such an ordet ought always to be made by the court and should not be merely a judge's order, no matter whether the order is made on notice or not. The appointment of a receiver is made not by a judge but by the court, and there being no specific directions in the rules or statutes as to where such an application as this should be made, it would seem that in all cases it should be made to the court. In New York County if it is made on notice, it must be made at Part I of the Special Term; if it is made ex parte it must be made at Part II of the Special Term. ^ See note to notice of motion preceding as to title of papers. 54 BRADBURY S LAWYERS MANUAL Notice of Motion by Receiver in Supplementary Proceedings for Permission to Sue said George Howard is permitted to bring an action against said Eli Franklin, as receiver of Charles Dowd for {here briefly state the cause of action) . Enter P.A.H., J. S. C. ARTICLE C. APPLICATION BY RECEIVER IN SUPPLEMENTARY PROCEEDINGS FOR PERMISSION TO SUE FORM NO. 29 Notice of Motion by Receiver in Supplementary Proceedings for Permission to Sue ^ New York Supreme Court, New York County. In the Matter of the Application of Adam Brown, Plaintiff and Judg- ment-Creditor, for the Examination in proceedings supple- mentary to Execution of Charles Dowd, defendant and Judgment- Debtor. ^ In the Matter of the Apphcation of Eli Franklin, as Receiver in Sup- plementary Proceedings of Charles Dowd, for permission , to sue George Howard.^ Please take notice, that on the annexed petition of EU FrankUn, verified the day of , 19 , and '■ Whether or not notice is necessary depends upon the circumstances in each case. Unless there is some specific statute or rule of court dispensing with notice 2 As the receiver in a case of this kind is appointed in the supplementary proceeding, and as it has been held that the proceeding to examine a debtor LEAVE TO SUE 55 Notice of Motion by Receiver in Supplementary Proceedings for Permission to Sue on the request that an action be brought, duly executed and acknowledged by Adam Brown on the day of ,19 , and on all proceedings had herein and in the action on which said proceeding was founded, a, motion will be made 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 Courthouse, therein, on the day of ,19 , at 10:30 o'clock in* the forenoon, or as soon thereafter as counsel can be heard, for an order permitting said Eli Franklin, as Receiver in Supplementary Proceedings of Charles Dowd, to sue George Howard on the cause of action stated in said petition and for such other, further and different relief as may be proper. (With the costs of this motion.) Dated, , 19 . Yours, etc., Isaac Johnson, Attorney for Receiver, 60 Wall Street, Manhattan Borough, New York City. To {Such persons, naming them, as it is necessary to give notice. See notes.) in a particular case it is usually safe to give it to all those who have appeared in the action or proceeding. If there are several judgment creditors and the re- ceivership has been extended to cover all the judgments, or two or more of them, notice should be given to all those to whose judgments the receivership has been extended. is a special proceeding and should be entitled as such and not merely entitled in the action in which the judgment was rendered, the first title is proper, if it is needed at all, in addition to the second title printed above. The only pur- pose of any title is to identify the action or proceeding as to which the papers refer and this object is accomplished by the practice outlined above. While, therefore, two titles may appear cumbersome, safe practice dictates that they should both be used. The first indicates the origin of the proceeding and the second the present motion, which is entirely independent of the first proceeding and is therefore essential. 56 Bradbury's lawyers' manual Petition by Receiver in Supplementary Proceedings for Permission to Sue FORM NO. 30 Petition by Receiver in Supplementary Proceedings for Permission to Sue (Title same as notice of motion preceding) To the New York Supreme Court, New York County: Eli Franklin, your petitioner herein, respectfully shows to the Court : I. That by an order duly made by the Supreme Com-t, New York County, dated the day of , 19 , and duly filed and entered in the office of the Clerk of the County of New York on the day of ; 19 , in a proceeding supplementary to execution on a judgment in which Adam Brown was the plaintiff and judgment creditor and Charles Dowd was the defendant and judgment debtor, your petitioner was duly appointed receiver of said Charles Dowd; that your petitioner duly qualified as such receiver by duly fihng his bond as such, which said bond was duly approved by the court appointing him as to the form thereof, the sufficiency of the sureties and the amount thereof, and your petitioner there- upon entered upon his duties as such receiver and is still such receiver. II. Your petitioner is advised by his counsel herein, Isaac Johnson, Esq., and he verily believes that as such receiver he has a valid and meritorious cause of action against George Howard upon the following cause of action: (state the cause of action concisely in this place). III. On information and belief ^ your petitioner alleges the following facts as the basis of the proposed action against said George Howard: (here set forth concisely but fully in the form of a complaint the facts on which the proposed cause of action is based) . 1 See note to petition, Form No. 22, as to allegations on information and belief in a petition. LEAVE TO SUE 57 Petition by Receiver in Supplementary Proceedings for Permission to Sue IV. That your petitioner has made dihgent inquiry and verily beheves that said George Howard is a man of responsi- biUty and that any judgment which may be recovered against said George Howard in said proposed action can be collected. {Or otherwise show that the relief it is proposed to ask for can be secured in case of a successful litigation.) V. That your petitioner has duly demanded said sum from said George Howard, and he has failed and refused to pay the same. (Otherwise allege any demand which it may be necessary to make before the action is brought.) VI. That said Adam Brown, the creditor herein, in whose Jaehalf your petitioner was appointed, has made a request in writing that such an action be brought, and that said written request duly executed and acknowledged is hereunto annexed and made a part of this application. (Unless this request is presented the receiver must give a bond with sufficient sureties ap- proved 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. See Rule 78 of the General Rules of Practice.) VII. That no previous application for such an order has been made.^ Wherefore, your petitioner prays this court that an order may be entered permitting him as such receiver to bring an action against George Howard upon the cause of action here- inbefore stated, and for such other, further or different relief as may be proper. (With the costs of this motion.) Dated the day of , 19 . Eli ■ Franklin, Receiver. Isaac Johnson, Attorney for Receiver, 60 WaU Street, New York City. ' Necessary only when the application is made ex -parte. 58 Bradbury's lawyers' manual Request of Creditor that Action be Brought State of New York ] ( SS * County of New York J Eli Franklin, being duly sworn, says he is the petitioner herein; that he has read and knows the contents of the fore- going petition, and that the same 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. That the sources of his information and the ground of his belief ^ as to such matters as are therein stated to be alleged on information and belief are the affidavits of John Doe and Richard Roe, verified respectively the day of , 19 , and the day of , 19 , which are hereunto annexed and made a part of this petition. (State any other documents or sources from which the information was derived.) Eli Franklin. Sworn to before me, this day of , 19 . , Adam Johnson, Notary Public, New York County FORM NO. 31 Request of Creditor that Action be Brought (Rule 78, Gen. Rules of Prac.) To Eli Franklin, Esq., Receiver in Supplementary Proceed- ings of Charles Dowd: Su-: Please take notice, that the undersigned, Adam Brown, the judgment creditor of Charles Dowd, in proceedings supple- mentary to execution, in which you were appointed receiver of said Charles Dowd by an order of the Supreme Court, filed and entered in the office of the clerk of the County of New York on the day of , 19 , hereby re- ' See note on information and belief allegations in petitions to Form No. 22. LEAVE TO SUE 59 Failure of Creditor to Make Written Request that Action be Brought quests that you bring an action against George Howard to recover the sum of dollars, or such other sum as may be found due from said George Howard to said Charles Dowd, upon the following cause of action: {here^ state briefly and concisely the cause of action) , or such other cause of action as your counsel, learned in the law, may find exists against said George Howard in favor of said Charles Dowd. Witness my hand this day of , 19 . Adam Brown, Creditor. State or New York ■ SS ' CotTNTY OF New York On this day of , 19 , personally ap- peared before me Adam Brown, to me known and known to me to be the person described in and who executed the fore- going request, and he acknowledged to me that he executed the same. Alfred Johnson, Notary Public, New York County. FORM NO. 32 Bond for Costs Upon Failure of Creditor to Make Written Request that Action be Brought (Title same as Notice of Motion, Form No. 39)- (Rule 78, Gen. Rules of Prac.) Know all Men by these Presents, that Whekeas, the above-named Eli Franklin, as Receiver in Supplementary Proceedings of Charles Dowd, judgment debtor, has applied to the Supreme Court for permission to bring an action against George Howard, Now, We, John Kenyon, merchant, residing at No. , Street, Bor- ough of Manhattan, City, County and State of New York; 60 Bradbury's lawyers' manual Failure of Creditor to Make Written Request that Action be Brought and Lucas Merwin, merchant, residing at No. , Street, Borough of Manhattan, City, County and State of New York, pursuant to Rule 78, of the General Rules of Prac- tice of the New York Supreme Court, jointly and severally acknowledge ourselves bound to pay to and undertake and agree that they will pay to said George Howard any sum as costs which he may recover against said Receiver in said action thus to be brought (not exceeding the sum of five hundried dollars).^ Witness our hands and seals at this day of ,19 . John Kenyon (seal). Lucas Merwin (seal). State of New York County of New York J John Kenyon, being duly sworn, says that he is one of the sureties above named and who subscribed the foregoing bond, that he is a resident of and a free- (house) holder within the State of New York and is worth the stun of one thousand dollars over all the debts and liabilities which he owes or has incurred and exclusive of property exempt by law from levy and sale under an execution. John Kjenyon. Sworn to before me, this day of , 19 . Adam Johnson, Notary Public, New York County. ' Rule 78 does not mention any limitation in the amount and perhaps it would be improper to limit the sum. This question does not seem to have been passed upon. Section 812 of the Code of Civil Procedure requires that when a bond or undertaking is given in a legal proceeding that the sureties must qualify in double the penalty of the bond or the amount of the undertaking. If, therefore, no amount is specified in this bond the court must still determine the amount in which the sureties must justify. The affidavit of justification given in this bond assumes that no amount will be limited in the bond. If the amount should be limited in the bond the affidavit of justification would state that the sureties were worth twice, the sum specified as the penalty of the bond. LEAVE TO SUE 61 Failure ot Creditor to Make Written Request that Action be Brought ss: State of New Yohk County of New York Lucas Merwin, being duly sworn, says that he is one of the sureties above named and who subscribed the foregoing bond, that he is a resident of and a free- (house) holder within the State of New York and is worth the sum of one thousand dol- lars 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. Lucas Merwin. , Sworn to before me, this day of , 1916. Adam Johnson, Notary Public, New York County. State of New York 1 I SS ' County or New York J On this day of , 19 , before me per- sonally appeared the above-named John Kenyon, and Lucas Martin, to me known, and known to me to be the individuals described in, and who executed the foregoing land, and they severally acknowledged to me that they executed the same. Adam Johnson, Notary Public, New York County. [Indorsed.] I approve the within bond both as to form and the sufficiency of the securities. Dated , 19 Peter A. Hendrick, Justice of the Supreme Court of the State of New York. 62 bbadbury's lawyers' manual Order Permitting Receiver in Supplementary Proceedings to Sue FORM NO. 33 Order Permitting Receiver in Supplementary Proceedings to Sue. At a Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. In the Matter of the Application of Adam Brown, Plaintiff and Judg- ment-creditor, for the Examination in Proceedings Supple- mentary to Execution of Charles DowD, Defendant and Judgment- debtor. In the Matter of the Application of Eli Franklin, as Receiver in Sup- plementary Proceedings of Charles Dowd, for Permission to sue George Howard. Eli FrankUn, as receiver in supplementary proceedings of Charles Dowd, having regularly moved for permission to bring an action as such receiver against George Howard for {here state concisely the cause of action) and said motion coming on regularly to be heard, now, on reading and filing the notice of motion dated the day of , 19 , the petition of Eli Franklin, duly verified on the day of , 19 , and the request that such action be brought, duly executed and acknowledged on the day of , 19 > by Adam Brown, the judgment- LEAVE TO SUE 63 Order Permitting Receiver in Supplementary Proceedings to Sue creditor of Charles Dowd, upon whose appUcation said Eli Franklin was appointed receiver of said Charles Dowd {if the judgment-creditor does not file a written request that the action be brought, the following recital must be substituted in place of that concerning such request:) And said receiver having furnished a bond duly approved by the court as to form, amount and the sufficiency of the sureties, conditioned that said receiver will pay to said George Howard any sum as costs which said George Howard may recover against said receiver in said proposed action) {recite any other papers read by any party on the motion), and after hearing Isaac Johnson, Esq., attorney for said receiver, in favor of said motion, and William Watson, Esq., attorney for , in opposition thereto (and no one appearing in opposition thereto), and due deliberation having been had, it is hereby Ordered that said Eli Franklin as receiver in supplemen- tary proceedings of -Charles Dowd, be and hereby is authorized and empowered as such receiver to bring an action against George Howard in the court, for {here briefly state the cause of action) and that said receiver recover of ten dollars costs of this motion. Enter, P. A. H., J. S. C. 64 Bradbury's lawyers' manual Petition on Application Made Before Suit is Begun to Sue as a Poor Person ARTICLE D. APPLICATION FOR LEAVE TO SUE AS A POOR PERSON ' (Code Civ. Pro., §§ 458 et seq.) FORM NO. 34 Petition on Application Made Before Suit is Begun to Sue as a Poor Person New York Supreme Court, New York County. In the Matter of the Application of Amos Brown for Permission to bring an Action as a Poor Per- son against Charles Darwin. To the Supreme Court, New York County: Your petitioner, Amos Brown, respectfully shows to the court : — First : That your petitioner intends to bring an action against Charles Darwin for (here concisely state the nature of the action to he brought). Second: That your petitioner is not worth $100.00 besides the wearing apparel and fxu-niture necessary for himself and his family and the subject-matter of this action. Third: That your petitioner is over the age of twenty-one years. (// the petitioner is an infant under the age of fourteen years, the application must be made by his guardian appointed in the action.) 1 The forms in this Article may be adapted very readily to a case where the application is made after the action is brought. In such a case the papers would be entitled in the action instead of as in the forms given. After the action is brought the application should be made on notice to the defendant, in which case, in New York County it would be heard at Special Term, Part I. In certain cases specified in Code Civ. Pro., § 463, a defendant will be permitted to defend as a poor person. The petition must contain the same matters as are contained in that given in the text and in addition it must appear that the action involves the de- fendant's "right, title or interest in or to real or personal property." For improper conduct in the prosecution of the action or wilful or unnecessary delay the order may be annulled by the Court. Code Civ. Pro., § 462. LEAVE TO SUE 65 Certificate of Counselor at Law Annexed to Foregoing Petition Fourth: That no previous application for such an order has been made. Wherefore your petitioner prays that an order may be entered granting to your petitioner leave to bring an action as a poor person against said Charles Darwin on the cause of action above stated, and assigning an attorney and counsel to him to prosecute said action. Dated the day of , 19 . Amos Brown. State of New York, County of New York Amos Brown, being duly sworn, says that he is the petitioner who made the foregoing petition; that he has read the foregoing petition and knows the contents thereof, and that the same is true of his own knowledge except as to the matters which are therein stated to be alleged on information and belief, and that as to those matters he beHeves it to be true. Amos Brown. Sworn to before me this day of , 19 . George Wilson, Notary Public, New York County. FORM NO. 35 Certificate of Counselor at Law Annexed to Foregoing Petition I, Eli Franklin, of No. Street, in the Borough of Manhattan, City, County and State of New York, a coun- selor at law duly admitted to practice in the courts of the State of New York, do hereby certify that I have examined the case set forth in the foregoing petition, and I am of the opinion that the petitioner, Amos Brown, has a good cause of action upon the case stated in said petition against Charles Darwin. Dated the day of , 19 . Eli Franklin. 66 Bradbury's lawyers' manual Order Permitting Plaintiff to Sue as a Poor Person FORM NO. 36 Order Permitting Plaintiff to Sue as a Poor Person When Applica- tion Made Before Action Brought At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick' Justice. In the Matter of the Apphcation of Amos Brown for Permission to bring an Action as a Poor Person against Charles Darwin. The above-named Amos Brown having duly made an appli- cation for permission to bring an action as a poor person against Charles Darwin for {here briefly state the nature of the action), now, on reading and filing the petition of said Amos Brown, duly verified the day of , 19 , and the certificate of Eli Franklin, a counselor at law, admitted to practice in the courts of this State, dated the day of ,19 , and on motion of Eh Franklin, attorney for said petitioner, and no one appearing in opposition ther'eto, it is hereby Ordered, that said motion be and the same hereby is granted, and said Amos Brown is hereby permitted to bring an action as a poor person against Charles Darwin, for (here briefly state the nature of the action) without paying fees to any officer, ^ and if judgment is rendered against him in said action, or his com- plaint is dismissed, no costs shall be awarded against him. And it is Further Ordered that Eli Franklin, Esqr, be and hereby is assigned as attorney and counsel of said Amos Brown to prosecute said action against Charles Darwin, and said ' The person in whose favor the order is made cannot appeal as a poor pcreon, but if he is a respondent the order applies to an appeal. Code Civ. Pro., § 466. LEAVE TO SUE 67 When Applications Made After an Action is Brought Eli Franklin shall act as such attorney and counsel without any compensation ^ whatsoever. Enter, P. A. H., J. S. C. FORM Nb. 37 Notice of Motion When Applications Made After an Action is Brought New York Supreme Court, New York County. Amos Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice, that on the annexed petition of Amos Brown, verified the day of ,19 ,*and on the complaint (pleadings) in the above-entitled action and the certificate of Eli Franklin, Esq., dated the day of ,19 , a motion will be made at Special Term, Part I, of the New York Supreme Court, to be held in and for the County of New York" ^.t the County Courthouse thereiil oil the day of , 19 , at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard, for an order permitting the plaintiff herein to sue as a poor person, pursuant to the provisions of the Code of Civil Procedure, and that an attorney and counsel be assigned to the plaintiff to conduct such action, and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., JoAB Brown, Esq., Eli Franklin, Attorney for the defendant, Attorney for the Plaintiff. 120 Broadway, New York City. ' If costs are awarded to the person in whose favor the order is made they must be paid over to his attorney when collected from the adverse party. Code Civ. Pro., § 467. 68 Bradbury's lawyers' manual Notice of Motion for Leave to Sue on Judgment ARTICLE E. MOTION FOR LEAVE TO SUE ON A JUDGMENT. UNDER CODE CIV. PRO., § 1913 ' FORM NO. 38 Notice of Motion for Leave to Sue on Judgment New York Supreme Court, Albany County. William Hazen, Plaintiff, against John Alexander, Defendant. Sir: Please take notice, that on the annexed affidavit of William Hazen, sworn to the day of , 19 , and on the judgment roll in the above-entitled action, duly filed and entered in the office of the Clerk of the County of Albany, ' In the absence of a statutory prohibition a new action could be begun on a judgment in an action at law ae soon as it is rendered. Ordinarily, it would be absolutely useless to pursue this course, as the obvious method of enforcing the judgment would be by execution. A judgment creditor who was incUned to harass or annoy a judgment debtor who was unable to satisfy the judgment- might pile up the costs by bringing successive actions on his judgment. Of course, the debtor could rid himself of the annoyance at any time by paying the last judg- ment when he would be entitled to a satisfaction of all the judgments founded on the same debt. By statute, however, such a practice is prohibited, if it was ever indulged in, and it is said to have been {Harris v. Clark, 65 Hun, 361; 20 Supp. 232), by making it impossible to sue on judgments within certain periods except by leave of court. Thus where a judgment is about to become outlawed under the statute of limitations the creditor, if he wishes to preserve his claim, must bring a new action on the judgment. Again the hen of a judgment on real estate may have expired in which case a new judgment may be the proper method of renewing it. The time (10 years) may have expired within which the judgment debtor can be examined in supplementary proceedings under the judgment, in which case the procuring of a new judgment in an action on the old one is the only remedy open to the judgment creditor. In most of the cases mentioned the statute permits an action to be brought on the judgment without an application to the court. In fact, as the statutes now stand it would be a rare case in which it would be necessary to procure leave to bring the action if there was any legiti- mate purpose in suing on the judgment. The proceeding is infrequently resorted LEAVE TO SUE 69 Notice of Motion for Leave to Sue on Judgment on the day of , 19 , a motion will be made at a Special Term of the Supreme Court, to be held at the County Courthouse in the City and County of Albany, on the day of , 19 , at ten o'clock in the fore- noon or as soon thereafter as counsel can be heard, for an order permitting the plaintiff above named, William Hazen, to bring an action against the defendant above named, John Alexander, on a judgment for the sum of dollars, in favor of the plaintiff above named and against said John Alexander the defendant above named, which said judgment was duly filed to and each case depends upon its own peculiar circumstances. Of course, these remarks apply exclusively to domestic judgments, that is, judgments of the courts of our own State. It is frequently necessary in New York to bring an action on a judgment of a court of another State or of a foreign country. This is because while our courts recognize the validity of judgments of courts of other States as well as of foreign countries such judgments cannot be enforced here directly by execution. Therefore an action is begun on the judgment, in which action the regularity of the judgment is practically the only question Utigated. If the judg- ment of the court of the other State or foreign country is found to be valid our courts enter a judgment here which is enforced by execution. As before stated, it is never necessary to procure leave of court to bring an action on a judgment of a court of another State or of a foreign country. Where in any case it is necssary to secure leave to sue on a judgment an omis- sion to take this step makes the future proceedings jurisdictionally defective and they cannot be cured by an order nunc pro tunc. Cook v. Thurston, 18 Misc. 506; 42 Supp. 1084, and cases cited. Leave of court is necessary under § 1913 of the Code of Civil Procedure only when the new action is between the "original parties." Therefore it does not apply where the administrator of a deceased legatee sues to enforce a decree of a Surrogate's Court providing for a distribution of an estate. Koenig v. Wagener, 126 App. Div. 772; 111 Supp. 116. The provision of § 1913 (subd. 1) allowing an action to be begto on a judgment ten years old without apphoation to the court was adopted to meet the em- barrassment caused by the decision in Importers & Traders Nat. Bank v. Quacken- bush, 143 N. Y. 567. This subdivision was added by L. 1896, c. 568, and is retro- active so that it applies to judgments rendered before it was added to § 1913. Peace v. Wilson, 186 N. Y. 403. A final judgment of divorce and for the payment of alimony in instalments is a judgment for a sum of money within § 1913 and leave of court to sue thereon is necessary unless it falls within the exceptions contained in that section. Shepherd V. Shepherd, 51 Misc. 418; 100 Supp. 401; aff'd 117 App. Div. 924; 103 Supp. 1141. If it appears from the face of the papers that the judgment was docketed more than ten years prior to the beginning of the second action, leave is not necessary (so held on attachment). Id. 70 BRADBURY S LAWYERS MANUAL Prayor for Permission to Service Notice Other than Personally and entered in the office of the Clerk of the County of Albany, on the day of , 19 ; and for such other, further and different rehef as may be proper, with the costs of this motion. Dated the day of , 19 . To: — Yours, etc., John Alexander, Adam Ellis, Defendant. Attorney for Plaintiff. (Office and post-office address.) FORM NO. 39 Affidavit on Motion for Leave to Sue on Judgment with Prayer for Permission to Serve Notice Other than Personally New York Supreme Court, Albany County. William Hazen, Plaintiff, against John Alexander, Defendant. ss: State of New York County of I. WilUam Hazen, being duly sworn, says he is the plaintiff above named; that a judgment in favor of deponent and against the above-named defendant, John Alexander, for the An action agaiast a joint debtor not served with the summons in the prior ac- tion to charge him with the amount unpaid on the judgment is not such an action as requires leave of court to sue. Hofferberth v. Nash, 117 App. Div. 284; 102 Supp. 317. Under Code Civ. Pro., § 1913, leave to sue is not necessary where the action is brought by an assignee of the judgment. Fenlon v. Paillard, 46 Misc. 151; 93 Supp. 1101; McGrath v. Maxwell, 17 App. Div. 246; 45 Supp. .587; Carpenter v. Butler, 29 Hun, 251; Knnpp v. Valentine, 67 St. Rep. 582; Bostwick v. Scott, 40 Hun, 212. A final order in a special proceeding dctennining an attorney's lien on a motion for substitution of attorneys by the terms of which it is declared that the client LEAVE TO SUE 71 Prayer for Permission to Serve Notice Other than Personally sum of dollars, was duly rendered in the New York Supreme Court, County of Albany, and said judgment and the judgment roll were duly filed, entered and docketed in the office of the Clerk of the County of Albany, on the day of 19 ; that said judgment remains wholly unpaid and deponent is the owner thereof. II. That ten years have not elapsed since said judgment was so docketed; and said judgment was not rendered against said John Alexander by default for want of an appearance or pleading after service of the summons upon him otherwise than personally. (See Code Civ. Pro., § 1913, subs. 1 and 2.) III. That (here state any reason why it is necessary to procure an order giving leave to sue on the judgment) . IV. That personal service ^ of the notice of motion for leave to sue cannot, with due diligence, be made on said John Alex- ander for the following reasons: {state them). The plaintiff therefore requests that said notice may be given in the follow- ing manner: {stating it). No previous application for such an order has been made. Sworn to before me this day of , 19 . {Signature and title of officer) William Hazen. is indebted to the attorney in a certain sum is not such a judgment as requires leave to sue under Code Civ. Pro., § 1913, before an action is brought by an assignee of the attorney. Fenlon v. Paillard, 46 Misc. 151; 93 Supp. 1101. ' If the service of the notice of motion is to be made otherwise than personally "(under § 1913, subd. 3) a preliminary court (not judge's) order should be entered specifying the manner of service. As this particular order (specifying the mode of service) is made without notice there should be a statement in the affidavit that no previous application therefor had been made. As this order also can only be made by the court it would necessarily in most of the counties, particularly in New York, remain in the custody of the Clerk and be filed immediately together with the papers on which it was granted. After the motion papers have been served in the manner provided in the order the original motion papers can be ordered up from the clerk's office to be submitted to the judge at Special Term, where the motion is to be argued. There should be added, of course, an affidavit of service. In New York County the motion would be returnable at Special Term, Part I, but the order for the service of the notice of motion otherwise than personally would be made in New York County at Special Term, Part 2. 72 BRADBURY'S LAWYERS' MANUAL Order for Service of Notice of Motion Otherwise than Personally FORM NO. 40 Order for Service of Notice of Motion Otherwise than Personally At a Special Term ^ of the New York Supreme Court, held in and for the County of Albany, at the Courthouse therein, on the day of , 19 . Present: Hon. William Franklin, Justice. William Hazen, Plaintiff, against John Alexander, Defendant. The plaintiff above named desiring to move for leave to bring an action on a judgment of the New York Supreme Court, Albany County, in his favor, for dollars, against the above-named defendant, John Alexander, which said judgment was duly entered, and docketed in the office of the clerk of Albany County, on the day of , 19 , and it appearing by the affidavit of WUham Hazen, duly sworn to the day of , 19 , to the satisfaction of the court, that personal notice of said motion cannot, with due diligence, be given to said defendant, John Alexander, and that no previous application for an order dis- pensing with personal notice has been made; now, on reading and filing the notice of motion dated the day of , 19 , and the afl&davit of William Hazen, sworn to the day of , 19 , and on motion of John Rogers, attorney for the plaintiff, it is hereby Ordered, that the motion papers herein be served on said defendant John Alexander by inclosing true copies of the notice of motion, dated , 19 ; the affidavit of William Ha- zen, sworn to » 19 » and of this order in a se- 1 In New York County this order could only be made at Special Term, Part 2. LEAVE TO SUE 73 Order Granting Leave to Sue on Judgment curely sealed, post-paid envelope, addressed to John Alexander, at No. , Street, City of , State of , and depositing the same in the general post office in the City of , (name the Borough, if New York City), not less than days before the return day of said motion; and upon comphance with the terms of this order personal notice of said motion on said John Alexander shall be dispensed with. Enter W. F., J. S. C. FORM NO. 41 Order Granting Leave to Sue on Judgment At a Special Term ^ of the New York Supreme Court, held in and for the Coimty of Albany, at the Courthouse therein, on the day of , 19 . Present: Hon. William Franklin, Justice. William Hazen, Plaintiff, against John Alexander, Defendant. The plaintiff, above named having regularly moved for an order permitting him to bring an action against the above- named defendant, John Alexander, on a judgment of the New York Supreme Court, Albany County, for dollars in favor of said plaintiff and against said defendant, John Alexander, which judgment was duly filed, entered and dock- eted in the office of the Clerk of Albany County on the day of , 19 , and said motion coming on regularly to be heard; now, on reading and filing the original notice of motion dated the day of , 19 ; the 1 If in New York County this order would be made at Special Term, Part I. 74 Bradbury's lawyers' manual Order Granting Leave to Sue on Judgment affidavit of William Hazen, sworn to the day of , 19 , and the affidavit of Evarts Smith, sworn to the day of , 19 , showing due service of the notice of motion and affidavit on which it is founded on said John Alexander, in favor of said motion (and the affidavit of John Alexander, sworn to the day of , 19 , in opposition thereto) and after hearing Adam Ellis, Esq., attorney for the plaintiff, in favor of said motion (and no one appearing in opposition thereto) (and Andrew Robinson, Esq., attorney for the defendant, in opposition thereto) and due deliberation having been had, it is hereby Ordered, that permission be and hereby is granted to the plaintiff, William Hazen, to bring an action in this court against the defendant John Alexander, on a judgment of the New York Supreme Court, Albany County, for the sum of dollars, in favor of said plaintiff and against said de- fendant, which said judgment was duly entered, filed and docketed in the office of the Clerk of the County of Albany, on the day of , 19 , (and that the plaintiff recover ten dollars costs of this motion against the defendant) . Enter, W. F., J. s. c. If there had been a preliminary order permitting service of the motion papers otherwise than personally the recital above as to the reading and filing of papers would he as follows: Now, after reading the original notice of motion dated the day of , 19 , and the affidavit of Wil- liam Hazen, sworn to the day of , 19 , heretofore duly filed in the office of the Clerk of the County of Albany, on the day of , 19 , together with the order of this court made herein dated the day of , 19 , and heretofore duly filed and entered in the office of the Clerk of the County of Albany on the day of , 19 , directing that notice LEAVE TO SUE 75 Order Granting Leave to Sue on Judgment of said application be given to said John Alexander otherwise than personally; and after reading and filing the affidavit of Evarts Smith, sworn to the ' day of , 19 , showing that due notice of said application has been given to said John Alexander in the manner provided in said order of the day of , 19 , and that said order has been duly complied with in all respects, and after reading and filing (defendant's papers, etc.). CHAPTER IV NOTICES TINDER EMPLOYERS' LIABILITY ACT.' LABOR LAW, § 201 ^ FORMS NO. PAGE NO. PAGE 42. General form of notice under bility Act; falling through Employers' Liability Act. . 76 trapdoor in floor 80 43. Notice under Employers' Lia- 46. Notice under Employers' Lia- bility Act; falling of steel bility Act; blowing out of column on employe 78 cylinder head 82 44. Notice under Employers' Lia- 47. Notice under Employers' Lia- bility Act; falling of stone bility Act; dangerous ma- on excavator 79 chine improperly guarded . . 83 45. Notice under Employers' Lia- 48. Freight handler injured by falling crate on box 84 FORM NO. 42 General Form of Notice under Employers' Liability Act (Labor Law, § 201) To John Jones (John Jones Company). [Post-office address.] Please take notice, that the undersigned, Adam Anderson, who resides at No. , Street in the City (Village) of , State of , was on the day of , 19 , at [describe with precision the place luhere the injury occurred] injured in the following manner: ' Under the statute as amended by L. 1910, c. 352, if the employer is not satis- fied with the first notice served he must demand a better one within eight days after the notice is served upon him. If he fails to make such a demand the em- ployer is precluded from raising any objection relating to the sufficiency of the notice so far as it relates to the time, place or cause of the injury. As the statute does not provide for more than one amended notice, however, it would seem that the decisions heretofore made relating to the sufficiency of the notice would still be in point if the workman in reply to the demand for a better notice should serve an amended notice which did not comply with the statute. It is a condition precedent to the bringing of an action under said act that the notice therein required shall he served. Gmaehle v. Rosenberg, 80 App. Div. 541; 76 NOTICES UNDER EMPLOYERS' LIABILITY ACT 77 General Form of Notice under Employers' Liability Act [state with particularity the negligent acts which were the cause of the injury, and also state with precision and particularity the extent of the injury] and notice thereof is hereby given to you pursuant to the statute in such case made and provided. Dated the day of , 19 . Yours, etc., Adam Ajstderson. [// the notice is given by someone other than the injured person but in his behalf it should be signed "Adam Anderson by John 80 Supp. 705; s. c. 83 App. Div. 339; 82 Supp. 366; Johnson v. Roach, 83 App. Div. 351; 82 Supp. 203; Veginan v. Morse, 160 Mass. 143. But where an action is brought by an employee against an employer based on the common-law rule of liability for damages for negligence, it is not necessary to serve the statutory notice. Gmaehle v. Rosenberg, 178 N. Y. 147; rev'g 87 App. Div. 631; 84 Supp. 1127; rev'g 40 Misc. 267; 81 Supp. 930; Schermerhom v. Glens Falls Portland Cement Co., 94 App. Div. 600; 88 Supp. 407. Sufficiency of notice. For an extended discussion of the sufficiency of the notice under the Statute see Finnigan v. N. Y. Contracting Co., 194 N. Y. 244. See also Valentino v. Gamin Machine Co., 139 App. Div. 139; 123 Supp. 959; Logerlo v. Central Building Co., 198 N. Y. 390. Time of service of notice. If the notice is given by the person who is injured he has 120 days from the date of the injury in which to serve it. When the person who is injured dies, his executor or administrator has 120 days from the time of the accident in which to give the notice in any event. Thus if the person injured should die on the thirtieth day after the injury the execiutor or administrator has ninety days in which to give the notice. If the time to give notice has almost but not quite expired at the time of the death of the person injured the executor or administrator still has sixty days in which to give the notice. Such is the effect of the decision in Randall v. Bixby, 195 N. Y. 514. A different doctrine was announced in the court below on two appeals (95 App. Div. 336; 88 Supp. 681; 103 App. Div. 596; 92 Supp. 1143) but was disapproved by the Court of Appeals. The decision of the Appellate Division in the Fourth Department in the case of Hoehn v. Lautz, 94 App. Div. 14; 87 Supp. 921, is, in effect, approved by the Court of Appeals. Service of notice by mail. If the notice is properly mailed the service is sufficient even though the employer never received it. Hurley v. Olcott, 198 N. Y. 132. In this case the defendant urged that proof of maihng only raised a presumption of service which could be rebutted by evidence that the notice was never received. The court ruled, however, that proof of proper maihng raised an indisputable presumption of service. Alleging notice under the Employers' Liability Law. An. allegation that "within 120 days after the occurrence of said accident . . . and on the 18th day of March, 1903, due notice in writing of the time, place and cause of the injury was given 78 Bradbury's lawyers' manual Notice under Employers' Liability Act; Falling of Steel Column on Employ 6 Brown," not "John Brown, attorney for Adam Ander- son."] [If the person injured dies, and the notice is given by the executor or administrator, it should be in the following form after the ad- dress as above.] Please take notice that on the day of ' , 19 , Adam Anderson was injured at [state with precision the place where the injury occurred] in the following manner: [state with precision and particularity the negligent acts alleged to have caused the injury, and also the extent of the injury] and that such injury resulted in the death of said Adam Anderson on the day of , 19 , at [state place of death] and this notice is given to you pursuant to the statute in such case made and provided. Dated the day of , 19 . Yours, etc., William Brown, Administrator of the Estate of Adam Anderson. [Post-office address.] FORM NO. 43 Notice under Employers' Liability Act ; Falling of Steel Column on Employe ' New York, Sept. 8, 1907. MiLLiKEN Bros, or Receivers of Milliken Bros. : Dear Sirs : — I wish to inform you that my husband, Thomas F. Hurley, was sent to the Presbyterian Hospital yesterday 'with an ununited fracture of the left femur. to the defendant in the manner provided by and pursuant to Chap. 600 of the Laws of 1902" was held to be a sufficient allegation of notice in a complaint. Harris V. Baltimore Machine & Elevator Works, 188 N. Y. 141. See also Severson v. Hill- Warner-Fitch Co., 116 App. Div. 108; 101 Supp. 808; Logerlo v. Central Building Co., 198 N. y. 390, and cases cited. Provision as to notice does not apply to common-law actions. The requirement as to giving notice under § 201 of the Employers' Liability Act applies only to actions which are brought under that statute, and does not afTeqt common-law actions for negligence. Gmaehle v. Rosenberg, 178 N. Y. 147. ' From Hurley v. Olcotl, 198 N. Y. 132, where it was held that service of the NOTICES UNDER EMPLOYERS' LIABILITY ACT 79 Notice under Employers' Liability Act; Falling of Stone on Excavator On the 9th of July 4:35 p. m. while under your employ on the new Singer Building two steel columns were placed in a careless position on the temporary bridge two feet above the 14th floor, 17th tier. These columns were placed one on top of the other, the top one rolled or was pushed ofif onto his leg and broke the leg four inches above the knee. Yours very truly, Werra Hurley. 221 East 45th St., N. Y. City. FORM NO. 44 Notice under Employers' Liability Act; Falling of Stone on .Excavator ^ To Daniel D. Streeter, 5189 Broadway, Borough of Manhattan, New York City. Please take notice, that I, Patrick Keegan, have a claim against you by reason of the fact that on the 10th day of March, 1905, while in your employ in an excavation then being made by you at 221st Street and Harlem River, in the city of New York, a certain large stone fell from the side of the pit of said excavation and in its fall struck and severely injured me about the head and body. That the falling of said stone and said .injury to me was due to the negligent, careless, reckless and unlawful aCits and omissions of you, your agents and superin- notice by mail was sufficient although never received by the defendant; that the proper mailing thereof raised an indisputable presumption of service. For complaint from this case see Bradbury's Rules Pl., page 751. 1 From Keegan v. Streeter, 195 N. Y. 593; aff'g without opinion 120 App. Div. 916 (no opinion), in which a judgmerft in favor of the plaintiff was affirmed For complaint from .this case see Bradbury's Rules Pl., page 736. 80 Bradbury's lawyers' manual Notice under Employers' Liability Act; Falling through Trapdoor in Floor tendents in placing me at work at a place in said excavation, unsafe and dangerous, and that said place was for some time prior to the falling of said stone known to you, your agents and superintendents to be in said unsafe and dangerous condi- tion and thereby and by reason of the reckless, careless, negli- gent and unlawful acts and omissions of you, your agents and superintendents as aforesaid, I received severe internal in- jm-ies, as well as injuries to my head and hands and leg, and was otherwise severely and permanently wounded, bruised, maimed and injured and rendered thereby sick, sore, lame and disabled. Dated New York, April 5th, 1905. Patrick Keegan, By F. A. Acer. [Post-office address.] FORM NO. 45 Notice under Employers' Liability Act; Falling through Trapdoor in Floor ' To the Hunter Arms Company, a corporation: Take notice, that I, Frank W. Bartlett, residing at Fulton, Oswego County, State of New York, have a claim against your company for the sum of fifteen thousand dollars for injuries received by me on the 13th day of September, 1905, through the carelessness and negUgence of your company, its officers, agents and servants, arising out of the following facts and circumstances : I. That your claimant was injured on the 13th day of September, 1905, in the forenoon of that day while in the employ of j^our company by faUing through a trapdoor situate 1 From BartleU v. Hunter Arms Co., 197 N. Y. 609; aff'g without opinion 130 App. Div. 905 (no opinion), in which a judgment in favor of the plaintiff was affirmed. For complaint from this case sec Bradbury's Rules Pl., page 739. NOTICES UNDER EMPLOYERS' LIABILITY ACT 81 Notice under Employers' Liability Act; Falling through Trapdoor in Floor back of the milling machine at which your claimant was work- ing on that day; said milling machine being situate in your factory on the first floor at Fulton, Oswego County, State of New York. II. That your claimant was injured through the carelessness and negligence of Frank Stafford, an employe of your company, who was entrusted with, and exercised superintendence of the milling machines, the shop in which the same were situated, and the men who were working in and around said milling ma- chines, in that he carelessly and negligently permitted said trapdoor to be left open and unguarded, and without sufficient light for the claimant to see said open trapdoor, and he failed to properly inspect said milling machines and the said trap- door back of said machines, but permitted the same to be left open and dangerous and cause said injury. III. That at the time aforesaid and as your claimant was working at said milling machine in the performance of his duties, and in the course of his employment and without any carelessness or negligence upon his part, he fell through said trapdoor, thereby dislocating his right knee and displacing the kneecap on his said right knee, thereby causing him great suffering, pain and agony; making him sick, sore and lame, and unable to leave his home for many weeks and unable to bear his weight upon said right leg, and causing him to walk on crutches, and, as your claimant beUeves, said injuries will be permanent and he will be unable to walk without using crutches for many years to come. IV. That your claimant has suffered damages by reason of said injuries in the sum of fifteen thousand dollars. V. This notice is herewith served upon your company in accordance with and pursuant to Chapter 600 of the Laws of 1902 of the State of New York, and any and all acts amending the same or supplemental thereto. Dated, Fulton, N. Y., January 8th, 1906. Frank W. Bartlett, Claimant. 82 Bradbury's lawyers' manual Notice under Employers' Liability Act; Blowing Out of Cylinder Head FORM NO. 46 Notice under Employers' Liability Act; Blowing Out of Cylinder Head i "The undersigned respectfully gives notice of the following facts, pursuant to Chap. 600 of the Laws of 1902, known as the Employers' Liability Act. "That Norman Lampman in his lifetime was her husband, and that he came to his death by reason of defects in the en- gine and machinery connected with and used in the business of the Syracuse & Suburban Railroad Company, at its power house in Manlius, N. Y.; and also by reason of the insufficiency and incapacity of the same for the purposes for which it was being used; which defects and deficiencies were well known to the said company, and of its servants and agents and those entrusted by it with the duty of seeing that the ways, works and machinery were in proper condition. "That the undersigned was on the 17th day of September, 1907, appointed administratrix of said deceased. "That the deceased left the undersigned, his widow, and one child Ralph E. Lampman, aged four years. "That said deceased came to his death by reason of a de- fective engine, the cylinder head of which blew out, striking and killing said intestate. That said cylinder head, cylinder crosshead, and all the parts of said engine were old, worn out, defective and insufficient. That the same was used beyond its capacity and was insufiicient for the work for which it was used. "That said defects, incapacity and insufficiency existed at the time of the said injury, and for a long time prior thereto, and were well known to the said railroad company and could ' From Lampman v. Syracuse & Suhurhan R. Co., 197 N. Y. 601; aff'g without opinion 132 App. Div. 941 (no opinion), in which a judgment in favor of the plain- tiff was affirmed. For complaint from this case see~BRADBURY's Rules Pl., page 818. NOTICES UNDER EMPLOYERS' LIABILITY ACT 83 Notice under Employers' Liability Act; Dangerous Machine Improperly Guarded have been easily discovered with reasonable or proper care, test or inspection. "That said deceased came to his death on the 26th day of August, 1907, and while he was in the employ of the said Syra- cuse & Suburban Railroad Company, and without any negli- gence or want of care on the part of said deceased. "That the undersigned will commence an action against said company to recover damages in the sum of $25,000. "Dated, November 16, 1907. "Mrs. Clara Lampman, "Administratrix of Norman E. Lampman." [Post-office address.] FORM NO. 47 Notice under Employers' Liability Act; Dangerous Machine Im- properly Guarded ' To the Gustave Stickley Company: Please take notice, that I, Merton A. Graves, residing at No. 323 Hutchinson Avenue, in the city of Syracuse, N. Y., herewith serve upon your company, in accordance with and pursuant to Chapter 600 of the Laws of 1902, of the/State of New York, the following notice of claim : I. That while in your employment, your claimant was in- jured, upon the 24th day of February, 1906, at about two o'clock in the afternoon of that day. IL That the place where your claimant was injured was near the center of the room known and used as the "woodworking room," which room was situated near the central part of the basement in your factory located upon Burnet Avenue, in the Village of Eastwood, N. Y., a two-story building having a base- ment underneath, and more particularly, while working upon a "jointer " of your company at the place above mentioned. ' From Graves v. Gustave Stickley Co., 195 N. Y. 584; aff'g without opinion 125 App. Div. 132; 109 Supp. 256; in which a judgment in favor of the plaintiff waa affirmed. The verdict in this case was for $200. For complaint from this case see Bkadbuky's Rules Pl., page 775. 84 . Bradbury's lawyers' manua.l Freight Handler Injured by Falling Crate or Box III. That the cause of your claimant's injuries is as follows: that at the time and place hereinbefore mentioned, while your claimant was dressing certain boards for chair arms, by the use of said jointer, the doors in the southerly part of said room were opened, and the wind blew a quantity of sawdust into your claimant's eyes, causing him to become temporarily blinded, and before he regained his sight his left hand was drawn by the moving board into the knives upon said machine which knives were then revolving rapidly, and which were not guarded, and thereby caused the injuries hereinafter mentioned; that there was in general use upon machines of this character guards which would protect the operators of such machines from in- juries of this character, and your company failed and neglected to provide such guards for the machine in question. IV. That when your claimant's left hand came in contact with the knives upon said machine as above mentioned, they cut and severed the second finger upon your claimant's left hand at the middle joint, besides cutting, lacerating and in- juring the muscles, ligaments, nerves and bones of the index finger upon his left hand, causing your claimant to undergo much pain and suffering, besides crippling and disfiguring his left hand, rendering your claimant wholly unfit from per- forming his usual and ordinary vocations of life, and as a re- sult of said injuries your claimant has been obliged to lay out and expend divers sums of money for medicine, medical at- tendance, treatment and care, amounting in all to his damage in the sum of $15,000.00. Merton a. Graves. FORM NO. 48 Freight Handler Injured by Falling Crate or Box ' To the Citizens' Steamboat Company of Troy, N. Y. : Notice is hereby given, pursuant to section 2, of Chapter 600, of the Laws of 1902, to you, as the employer, that the ' From Williams v. Citizens' Steamboat Co., 202 N. Y. 567; aff'g without NOTICES UNDER EMPLOYERS' LIABILITY ACT 85 Freight Handler Injured by Falling Crate or Box undersignec^ Frank Williams, residing at No. 2008 Broadway, Watervliet, N. Y., an employe of your company, was injured while in such employ as follows : 1. The time of the injury was at about 11:30 o'clock in the forenoon of the 5th of August, 1904. 2. The place of the injury was the gangway on the wharf of your company in the city of Troy, N. Y., said gangway being the inclined plane in the wharf or dock, through and over which freight is loaded upon and unloaded from the boats of your company moored alongside. 3. The cause of the injury was the negligence of you, the Citizens' Steamboat Company, acting by and through John Van, your general foreman and superintendent of your em- ployes on and about said wharf, and on and about your boats thereat, who was at the said time and place in the service of you, the said company, the employer, and was entrusted with and exercising superintendence of the work in which claimant was engaged when injured, and whose sole or principal duty was that of superintendence, and who was then and there acting as superintendent with your authority and consent, as such em- ployer. The negligence above stated as the cause of the accident was as follows : Claimant was one of your employes under the control and superintendence of said Van, engaged in the busi- ness of unloading and loading your boats at said dock and was known as a freight handler, truckman, or trucker. On the morning of the injuries said claimant was engaged with other truckers in unloading at said wharf a boat of your company which had come up from New York with freight and in loading it ior the return passage. Among other freight on the same boat which was to be unloaded, was a very large high box, said to contain a bar and barroom fixtures. This long and high box had been removed from the deck or body of the boat. opinion 134 App. Div. 991, no opinion. See this case reported with form of com- plaint and charge of trial judge, in 1 Bradbury's P. & Pr. Rep,, p. 266. Upon former appeals the case was reported in 122 App. Div. 188; 106 Supp. 975; 128 App. Div. 807; 11.3 Supp. 616. 86 Bradbury's lawyers' manual Freight Handler Injured by Falling Crate or Box where it had been brought up from New York by th^ order and direction of said Superintendent /Van, and by like order and direction instead of being removed to a proper and safe place on the wharves where it could be safely stored and kept until delivered to the consignee or forwarded, was recklessly, care- lessly and negligently permitted and ordered and directed to be left in said gangway leading to the wharf proper, by and through which the claimant and other employes and truckmen of your company were compelled to go to and fro with their trucks in the business of continuing to unload said boat and in the business of loading it. Said long and tall box was not se-. cm-ely or at all fastened to or placed in said gangway, but was by like order and direction leaned up against the side of the gangway, the top of it projecting above the level of the wharf, and the box resting on an edge or side thereof, so that it was unsecure and liable to topple and fall over with the appUcation of slight force, while the work of removing the remaining freight from the boat was going on; all of which was known to your said superintendent, but which was at that time un- known to claimant, who had no notice of warning that said box was dangerous or liable to topple or fall over. While plaintiff was proceeding up said gangway with his truck returning from the boat upon which he had just deposited a truck-load of freight and while he was passing through the space left between said box just resting on its edge, and the other side of the gangway, the said box fell over and upon and against the said claimant, crushing him against the opposite side or wall of the gangway and underneath the said box. The cause of said box falling and toppling over upon the claimant was its being so negligently and carelessly left and permitted to remain in said gangway as aforesaid, on its edge or side, lean- ing up against the side of said gangway, but plaintiff is ignorant of his own knowledge of what started or caused, at that in- stant, said box to topple and fall over upon him, but he is in- formed and believes that it was caused by a strong gust of wind blowing against the flat side or top of said box. There was a very strong wind that morning and owing to the said NOTICES UNDER EMPLOYERS LIABILITY ACT 8/ Freight Handler Injured by Falling Crate or Box box being so insecurely and negligently leaned up on its edge against the side of the gangway, it would be likely to and did in fact, as claimant believes, blow over and topple and fall against claimant, crushing him beneath it as above stated, thereby causing the claimant's injury. Dated , 19 . his Witness to signature and mark, Frank X Williams. John McDonald. mark. CHAPTER V NOTICES AS FOUNDATION FOR ESTABLISHING PERSONAL LIA- BILITY OF DIRECTORS AND STOCKHOLDERS OF CORPORATIONS FORMS NO. PAGE NO. ^ PAGE 49. Notice to stockholder of cor- 50. Notice by stockholder to cor- poration by employe for the poration and officers thereof purpose of holding the stock- to bring action to nullify holder personally hable for acts of directors in wasting wages 88 property of corporation. ... 89 FORM NO. 49 Notice to Stockholder of Corporation by Employe for the Purpose of Holding the Stockholder Personally Liable for Wages (Stock Corporation Law, § 57; Consolidated Laws of 1909, Chap. 59, Art. 4, § 57, formerly Stock Corporation Law, § 54) '■ To John Jones, No. , Street, New York City. Please take notice that the Company, a New York corporation, is indebted to me, the undersigned, in the Slim of dollars as an employ^, other than a contractor, for such corporation, and that I intend to hold you liable for said sum as a stockholder of said company. Dated the day of , 19 . (Signature of employe.) ' The statute cited above now reads as follows: "The stockholders of every stock corporation shall jointly and severally be personally liable for all debts due and owing to any of its laborers, servants, or employes other than contractors, for services performed by them for such corpora- tion. Before such laborer, servant or employe shall charge such stockholder for such services, he shall give him notice in writing, within thirty days after the term- ination of such services, that he intends to hold him liable, and shall commence an action therefor within thirty days after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for services." Part of former L. 1890, chap. 564, § 57, as amended by L. 1892, Chap. 688, § 54; L. 1901, Chap. 354, § I; now Stock Corp. L., § 57; Consohdated Laws of 1909, Chap. 59, Art. 4, § 57. 88 ESTABLISHING PEESONAI. LIABILITY 89 Action to Nullity Acts of Directors in Wasting Property of Corporation FORM NO. 50 Notice by Stockholder to Corporation and Officers Thereof to Bring Action to Nullify Acts of Directors in Wasting Property of Corporation ^ To the John Jones Company: John Jones, Robert Roe and WiUiam Brown, officers and directors of said John Jones Company : You will please take notice that I, the undersigned, a stock- holder of the John Jones Company hereby demand that said company bring an action against John Jones, Robert Roe and William Brown to recover from them the sum of dollars, the value of the property of said John Jones Company, which has been wasted and lost to said John Jones Company by the wrongful and negUgent acts of said John Jones, Robert Roe and William Brown as such officers and directors, in that they {here state concisely the nature of the acts of which corn-plaint ' Before a stockholder of a corporation can maintain an action on behalf of himself and all others similarly situated against the officers and directors of the corporation to recover property misapplied or wasted, or otherwise to conserve the interests of the corporation it must appear that the plaintiff by a proper de- mand on the corporation has endeavored to secure the remedial action by the corporation itself for the grievance of which complaint is made. O'Connor v. Virginia Passenger & Power Co., 184 N. Y. 46; Flynn v. Brooklyn City R. Co., 158 N. Y. 493; McCoy v. Gas Engine & Power Co., 135 App. Div. 771; 119 Supp. 864; Weber v. Wallenstein, No. 1, 111 App. Div. 693; 97 Supp. 846; Rosenbawn v. Rice, 86 App. Div. 617; 83 Supp. 494; Taylor v. Holmes, 127 U. S. 489; Detroit v. Dean, 106 U. S. 537; Robinson v. West Virginia Loan Co., 90 Fed. 770. The stock- holder must either serve a demand on the corporation that the necessary remedial action be taken or he must demonstrate by facts stated in the complaint that the officers and directors in control of the corporation have been" guilty of the wrong- ful acts of which complaint is made and that a demand upon the corporation while they are thus in control would be futile. (See cases cited above.) In fact the safer practice seems to be to make the demand, especially if there has been any change in the personnel of the officers and directors since the commission of the acts of which complaint is made. It is held that a failure to make a demand is not ex- cused by alleging that a majority of the directors who authorized the contract, which it is sought to nullify, are still in office, if there is no charge that they were guilty of wrongdoing. McCoy v. Gas Engine dk Power Co., 135 App. Div. 771; '119 Supp. 846. 90 Bradbury's lawyers' manual Action to Nullify Acts of Directors in Wasting Property of Corporation is made and the manner in which the corporation has been injured by the acts of the directors) . A failure to commence such action on or before the day of 19 , will be deemed a refusal to comply with the request herein contained. Dated, , 19 . Very truly yours, Adam Adams, Stockholder of the John Jones Company. CHAPTER VI GUARDIAN AND WARD FORMS NO. PAGE Article A. — General Guardian. 51. ^Petition by infant over four- teen years of age 92 52. Petition on behalf of infant under fourteen years of age 95 53. Consent of guardian to be annexed to petition 97 54. Affidavit as to property whicli may be annexed to petition 97 55. Decree appointing guardian. . 98 56. Annual account of guardian. . 100 Article B. — Guardian Ad Litem. 57. Petition of infant over four- teen years of age 104 58. Consent of proposed guardian to act 108 59. Affidavit of proposed guardian as to ability 108 60. Order appointing guardian ad litem when made by the court 109 61. Order appointing guardian when made by a judge. ... 110 62. Petition on application of gen- eral or testamentary guard- ian for appointment of guardian ad litem for infant under fourteen Ill 63. Consent of proposed guardian ad litem to act 113 NO. page 64. Affidavit of ability of proposed guardian 114 65. Order when application made to court 115 66. Order when apphcation made to judge 116 67. Notice of motion for appoint- ment of guardian ad litem . . 117 68. Petition by relative or friend for appointment of guardian ad litem for infant under fourteen 119 69. Consent of the proposed guardian to act 121 70. Affidavit of ability of pro- posed guardian 121 71. Court order appointing guard- ian ad litem for infant under fourteen ,' 122 71a. Bond of guardian ad litem . . 124 Article C. — Special Guardian. 72. Petition by infant over four- teen years of age for special guardian 126 73. Consent of proposed guardian to act 128 74. Affidavit of proposed special guardian 129 75. Court order appointing special guardian 130 76. Report of special guardian. . . 132 91 92 BRADBURY'S LAWYERS' MANUAL Petition for Appointment of General Guardian of Infant Over Fourteen ARTICLE A. GENERAL GUARDIAN FORM NO. 51 Petition by Infant over Fourteen Years of Age for Appointment of General Guardian (Code Civ. Pro., §§ 2642-2653) Surrogate's Court: New York County. In the Matter of the Apphcation of A. B., an Infant over the Age of Four- teen Years, for the Appointment of a General Guardian. To The Surrogate's Court in The County of New York: A. B., yoiu- petitioner, herein respectfully shows to the Court : I. That your petitioner's full name is A. B.; that he resides at , Street, in the City, County and State of New York ; that your petitioner is over the age of fourteen years and was born on the day of , 19 . II. The names of your petitioner's father and mother are as follows: (// the father and mother are living give the place of residence.) {If parents or either of them, are or is dead state the fact.) III. Your petitioner resides with C. D., at No. , Street, in the City, County and State of New York and the nearest next of kin of full age of your petitioner is E. F., who is petitioner's uncle and who resides at Street, in the City, County and State of New York. {The name and address of the next of kin is only necessary where the father and mother are both dead.) IV. No general guardian has been appointed of your peti- tioner, either by the decree of any court or by will or deed. (// any such Guardian has been appointed give the particulars concerning the same and state whether such Guardian has died, GUARDIAN AND WARD 93 Petition for Appointment of General Guardian of Infant Over Fourteen become disqualified, refuses to act, been removed, or his term of office has expired.) V. Your petitioner is entitled to personal property of the estimated value of dollars, consisting of the fol- lowing property: {concisely describe the property) and your petitioner is also entitled to the annual income from other personal property consisting of (describe same), amounting to dollars, and also to an annual income of dollars from real property, to which petitioner is or will be entitled, said real property consisting of the following parcels (Concisely describe same.) VI. That your petitioner is a resident of the County of New York (or has sojourned in the County of New York for at least one year preceding this application) or that your petitioner is not a resident of the State of New York and resides at Street, in the City of Newark, in the State of New Jersey, but yom* petitioner has real or personal property situated in the County of New York in the City and State of New York. (Describe it and give its value.) VII. (If either parent is living and there are reasons why the parents should not be appointed General Guardian give the reasons therefor.) VIII. (// the petitioner is a non-resident married woman and the petition relates to personal property only it must affirmatively show that the property is not subject to the control or disposition of her husband by the law of the petitioner's residence and must set forth the name and residence of her husband.) IX. The petitioner, therefore, prays that C. D. (who is petitioner's father), with whom he lives, may be appointed such General Guardian of petitioner's person and estate. (// some person other than a parent is named as a proposed Guardian set forth the reasons why the person named therein would be a proper or suitable person to be appointed such Guardian.) X. No previous appUcation for an order appointing such Guardian has been made. Wherefore your petitioner prays that C. F. be appointed Guardian of your petitioner's person and property, and cita- 94 Bradbury's lawyers' manual Petition for Appointment of General Guardian of Infant Over Fourteen tions may be issued to G. H. and J. K. to show cause why such appointment should not be made.^ Dated the day of , 19 . A. B., Petitioner. E. F. Attorney for Petitioner, 141 Broadway, Manhattan Borough, New York City. State or New York | County of J A. B., being duly sworn, says that he is the petitioner making the foregoing petition ; that the same is true of his own knowl- edge except as to the matters which are therein stated to be alleged on information and belief and that as to those matters he believes it to be true. A.B. Sworn to before me this day of , 19 . {Signature and title of officer.) ' The persons who must be cited on an apphcation for the appointment of a general guardian are specified in Code Civ. Pro., § 2647, but as therein provided the Surrogate may require the citation to be served on any relative or class of relatives before the appointment is made. Ordinarily, where the petition is made by a parent with whom the infant is residing, no citation to other persons is necessary. GUARDIAN AND WARD 95 Petition for Appointment of General Guardian of Infant Under Fourteen FORM NO. 52 Petition for Appointment of General Guardian of Infant Undei" Fourteen (Code Civ. Proc, §§ 2642-2653) Surrogate's Court, New York County. In the Matter of the Application of A. B. for the Appointment of a Gen- eral Guardian of C. B., an Infant under the Age of Fourteen. To the Surrogate's Court, in the County of New York: A. B. your petitioner herein respectfully shows to the Court: I. That C. B., is an infant under the age of foiu-teen who was born on the day of , 19 , and he resides at No. , , Street in the Borough of Man- hattan, City and State of New York. II. That the -names of said infant's father and mother are as follows , and they reside at No. , Street, Borough of Manhattan, City and State of New York. {If either of the parents is dead state the fact and give the name and place of residence of the survivor.) III. Said infant C. B. resides with your petitioner, who is his Uncle and his nearest next of kin, at No. , Street, Borough of Manhattan, City and State of New York. {The name and address of the next of kin is necessary only when both parents are dead. But if the infant is living with some one other than his parents and either parent is living, then the name and address of the person with whom he is so living should be given as well as the rmme and address of the parents.) IV. No general guardian has been appointed of said infant C. B. either by the decree of any court or by will or deed. (// any such guardian has been appointed and for any reason is not acting or is incapacitated to act, state the facts.) 96 beadbxjry's lawyers' manual Petition for Appointment of General Guardian of Infant Under Fourteen V. Said infant C. B. is entitled to personal property of the estimated value of dollars consisting of the fol- lowing property {concisely describe the property) and he is also entitled to the annual income from other personal property consisting of {describe same) amounting to dollars annually and also to the annual income of about dollars from real property to which he is or will be entitled, said real property consisting of the following parcels. {Describe same, giving particulars as to gross income, expenses of mainte- nance and net income.) VI. That said infant C. B. is a resident of the County of New York (or has sojourned in the County of New York for at least one year preceding this application) (or is not a resident of the State of New York but resides in the City of Newark in the State of New Jersey) and has real (or personal) property situated in the County and State of New York. {Describe it and give its value as in paragraph V.) YIII. (// either parent of the infant is living and there are reasons why such parent should not be appointed general guardian give such reasons.) VIII. No previous application for the appointment of such a guardian has been made. Wherefore your petitioner prays that some suitable person ^ may be appointed of the person and estate of such infant C. B. to act until such infant shall arrive at the age of fourteen years. Dated , 19 . A. B., Petitioner {Verification the same as in preceding form.) ' When the infant is under fourteen the Surrogate must both nominate and appoint the guardian. As a matter of practice the various surrogates almost invariably appoint parents where the infant is under fourteen unless there is some substantial reason for appointing another person. GUARDIAN AND WARD 97 Affidavit as to Property Which May be Annexed to Petition FORM NO. 53 Consent of Guardian to be Annexed to Petition I, C. D., residing at Street, City, County and State of New York, hereby consent to be appointed General Guardian of the person and property of A. B., named in the foregoing petition. Dated the day of , 19 . C. D. State of New York County or New York ' On this day of 19 , before me per- sonally came C. D., to me known and known to me to be the individual described in and who executed the foregoing consent and he acknowledged to me that he executed the same. FORM NO. 54 Affidavit as to Property which may be Annexed to Petition Surrogate's Court, New York County. In the Matter of the AppUcation of A. B., an Infant over the Age of Four- teen Years, for the Appointment of a General Guardian. State, City and County of New York, ss: E. F., being duly sworn, deposes and says that he is well ac- quainted with the personal property belonging to A. B., the petitioner named in the foregoing petition, and also of the real estate from which said A. B. is entitled to receive the rents and profits. That said personal property consists of the following: {describe same). 98 BRADBURY'S LAWYERS* MANUAL Decree Appointing Guardian That said real property consists of the following parcels of the value set opposite each parcel: {describe the property). That said property consists of tenement houses (or state the facts) and the gross income therefrom if said property is entirely rented is at the present time the sum of dollars. The taxes thereon amount to about dollars a year and the carrying charges consisting of com- missions to the agent who has the same in charge, repairs, in- surance, janitor's services and coal, amount to about dollars a year. The balance thereof, amounting to about dollars a year, when all of said property is rented, belongs to said infant, A. B., and is the approximate amount which said A. B. will receive from said property. Sworn to before me, this \ E. F. day of , 19 . J {Signature and title of officer.) FORM NO. 55 Decree Appointing Guardian (Code Civ. Pro., § 2649) At a Term of the Surrogate's Court of the County of New York, held in and for the said County in the Hall of Records, on the day of , 19 . Present: Hon. William Williams, Surrogate. In the Matter of the Application of A. B., an Infant over the Age of Four- teen Years, for the Appointment of a General Guardian. A petition having been duly made for the appointment of a general guardian of the person and estate of A. B., an infant over the age of fourteen years, and said application having come on regularly to be heard; Now, on reading and filing the peti- GUARDIAN AND WARD 99 Decree Appointing Guardian tion of A. B., verified the day of , 19 (together with the citation directed to I. J. and K. L., with due proof of service thereof), and the Surrogate having duly heard the allegations and proofs and inquired into the circumstances of said infant and ascertained as to the value of his property and being satisfied that the interests of said infant will be promoted by the appointment of said guardian; Now, on motion of X. Y., attorney for said A. B., and no one appearing in opposition thereto, it is hereby Ordered and decreed that C. D. be and hereby is appointed guardian of the person and estate ^ of the said infant, A. B., upon said guardian duly qualifying by taking an oath to well and truly discharge the duties of such guardian according to law and executing a bond of said infant according to law in the penal sum of dollars,- with good and ' The same person may be appointed general guardian of both the person and the property of the infant, or the guardianship of the person and of the property may be committed to different persons. The Surrogate may, in his discretion, appoint a person other than the father or mother of the infant or other than the person nominated by the petitioner. Code Civ. Pro., § 2649. If the infant is under fourteen years of age the recitals in the decree will be in accordance with the facts. It should appear, however, in the decree, where the infant is under the age of fourteen years, that the guardian was both nominated and appointed by the Surrogate. ' If the property of the infant exceeds $2,000 in value, as shown by the petition, the Surrogate must require a bond with at least two sureties, in a penalty fixed by the Surrogate, not less than the present value of the personal property and of the rents and profits of the real property and of the annual income receivable by him from any funds of which the general guardian will have possession, con- ditioned that the guardian \vill, in all things, faithfully discharge the duties im- posed on him and obey all lawful orders of the Surrogate respecting the charges, and that he will, in all things, render a just and true account of all moneys in all the properties received by him and the application thereof and of his guardianship whenever required so to do by a court of competent jurisdiction; but the Surrogate may, in his discretion, limit the amount of the bond to not less than twice the value of the personal property and all the rents and profits of the real property of such annual income receivable by him for the term of three years. If the property or the income does not exceed $2,000, the Surrogate may, in his discretion, make an order dispensing with such bond, wholly or partly, and directing that the guardian collect and receive the money and property jointly with a person designated in the order and that all such moneys and other property, so far as the same are conveniently capable of deposit, shall be deposited in the name of such guardian, subject to the order of the Surrogate with such savings bank, trust company or 100 Bradbury's lawyers' manual Annual Account of General Guardian sufficient sureties to be approved by the Surrogate and upon filing the same with the clerk of this court, and upon thus quahfying, letters of guardianship be issued to said C. F. accordingly. It is further ordered and decreed {where the property of the infant does not exceed the sum of two thousand dollars, as shown by the petition) that the giving of a bond by the said guardian be and hereby is dispensed with, and it is Ordered that the said guardian, C. F., collect and receive the money belonging to said A. B., said infant, jointly with E. F., who is hereby appointed to act as said guardian in collect- ing and receiving said money, and said money, when so collected and received, shall be deposited in the name of A. B., said guardian, in the Savings Bank {or the Trust Co., or the Safe Deposit Com- pany) and shall be withdrawn or removed only on the order of the SiUTOgate of the County of New York. Enter, Surrogate of the County of New York. FORM NO. 56 Annual Account of General Guardian ^ Surrogate's Court, County of New York. In the Matter of the Annual Inven- tory and Account of , General Guardian, of , Infant. I, , residing at No. , Street, safe deposit company as shall be designated in such order and shall be withdrawn and removed only on the order of the Surrogate. Code Civ. Pro., § 2650, as amended by I.. 1915, c. 642. ' The Surrogate's Court has very large supervisory powers over guardians. If this report is not promptly made annually the guardian may be removed. GUARDIAN AND WARD ^01 Annual Account of General Guardian General Guardian of , infant, do make, render and file the following Inventory and Account : On the day of , 19 , I was duly ap- pointed the General Guardian of , infant, by one of the Surrogates of the County of New York. Schedule A, hereinafter set forth (as part of said Inventory), contains a full and true statement and description of each article or item of personal property and the value thereof, and each sum of money, either principal or interest of said , received by me since my (appointment) or last account, the date of . , Schedule B, hereinafter set forth (as part of said Inventory), contains a full and true statement and fist of the articles or items of said property or money now remaining in my hands. Schedule C, hereinafter set forth (as part of said Inventory) , contains a full and true statement of the manner in which I have disposed of the articles or items of said property or money not remaining in my hands. Schedule D, hereinafter set forth (as part of said Inventory), contains a full and true statement of the amount and natm-e of each investment of money made by me, and of the manner in which the fund is at present invested and the name of the bank in which any moneys are at present deposited. Said Schedules, A, B, C and D constitute said inventory and are respectively signed by me. Schedule E, hereinafter set forth and signed by me, is a full and true account, in form of debtor and creditor, of all my receipts and disbursements of money since the date of , and distinctly states the amount of the balance remaining in my hands at the date of the last account ; the amount of the balance to be charged to me in the next year's account, is the sum of Dol- lars. All of which is respectfully submitted. Dated, , 19 . {Signature of Guardian.) 102 Bradbury's lawyers' manual Annual Account of General Guardian Schedule A Interest on deposit in Emigrant Industrial Savings Bank to Jan. 1, 1913, the sum of $ 24.06 Added to balance at last account of. . 620.62 .$644.68 {Signature of Guardian.) Schedule B Emigrant Industrial Savings Bank deposit of . . . . $594.68 (Signature of Guardiqn) Schedule C Sept. 6, 1912, Court order $15.00 Nov. 20, 1912, Premium on bond 10.00 Nov. 20, 1912, Attorneys' fees 10.00 Dec. 4, 1912, Court order 15.00 $50.00 {Signature of Guardian.) Schedule D Emigrant Industrial Savings Bank Deposit . . . $594.68 (Signature of Guardian.) Schedule E Dr. On hand at last account $620.62 Received interest 24.06 $644.68 Cr. By Schedule C ^0.00 Balance on hand $594.68 (Signature of Guardian.) GUARDIAN AND WARD 103 Annual Account of General Guardian City and County of New York, ss. : I, being duly sworn, do depose and say, that I am the General Guardian of , infant; that the foregoing Inventory and account contain to the best of my knowledge and beUef a full and true statement of all my re- ceipts and disbursements on account of my ward; and of all money and other personal property of my ward which have come to my hands or have been received by any other person by my order or authority or for my use since and of the value of all such property, together with a full and true statement and account of the manner in which I have disposed of the same, and of all the property remaining in my hands at the present time; and a full and true description of the amount and nature of each investment made by me since and that I do not know of any error or omission in the Inventory or account to the prejudice of my ward. Sworn to before me this | (Signature of Guardian.) day of , 19 M. B. F., Commissioners of Deeds, New York City. 104 Bradbury's lawyers' manual Petition by Infant over Fourteen for Appointment of Guardian Ad Litem ARTICLE B. GUARDIAN AD LITEM FOR INFANT PLAINTIFF OR DEFENDANT ' FORM NO. 57 Petition by Infant over Fourteen for Appointment of Guardian Ad Litem (Code Civ. Pro., §§ 469, 470, 471, 472; Rule 49, Gen. Rules Prac.) New York Supreme Court, New York County. In the Matter of the AppUcation of John Jones, an Infant over the Age of Fourteen Years, for the Appoint- ment of a Guardian Ad Litem.^ To the Honorable Supreme Court, in and for New York County: ' Your petitioner, John Jones, respectfully shows to the Court : First: That your petitioner is an infant over the age of fourteen years, to wit, of the age of years, on the ' If the plaintiff is a minor, it is absolutely essential that a guardian ad litem should be appointed for him, or her, before the summons is served. Code Civ. Pro., § 469. For an infant over fourteen years of age the application is made by the infant, and for an infant under that age, by the infant's testamentary or general guardian, or a relative or friend. Code Civ. Pro., § 470. There are cases holding that in some instances a, general guardian may maintain an action on behalf of his ward without the appointment of a guardian ad litem. But this ' If the application is for the appointment of a guardian ad litem for an infant defendant the title would be the same as the action in which the infant was the defendant. The allegations in the petition and order would be the same as in the forms given herewith except there would be a recital or an allegation that an action had been brought against the infant instead of an allegation or recital that the infant was about to begin an action. ' As the apphcation may be made to the court in which the action is to be brought, or to a judge thereof, or where an action is to be brought in the Supreme Court, to a county judge of the county in which the action is to be tried, the peti- tion may be addressed accordingly. Thus it may be to the Supreme Court, as in the petition in the text, or " To Hon. Elias Ingraham, Justice of the Supreme GUARDIAN AND WARD 105 Petition by Infant over Fourteen for Appointment of Guardian Ad Litem day of , 19 , and resides at No. , Street, in the Borough of Manhattan, City of New York. Second: That your petitioner is about to commence an action in the Supreme Court {or other court, stating its title) practice is discouraged by the courts, and it is very doubtful now whether it can be sustained. The very fact that the Code (§ 470) provides for an application by a general guardian for the appointment of a guardian ad litem, indicates the legis- lative intent to be that a general guardian should not sue in behalf of his ward, but should procure the appointment of a guardian ad litem for that purpose. Segelkm v. Meyer, 94 N. Y. 473; Perkins v. Stimmel, 114 N. Y. 359; Hyde v. Stone, 7 Wend. 354. If the defendant is an infant the summons may be served on him in the manner pointed out in the statute, such infant being named as a defendant the same as any other person. But the court cannot proceed any farther than this against the infant until a guardian ad litem is appointed for him. If the appointment of such a guardian is not procured by the infant defendant, or someone on his or her behalf, any party to the action may apply for the appointment. Code Civ. Pro., § 471. There are two methods of securing the appointment of a guardian ad litem for an infant defendant. The first is under § 471 of the Code of Civil Procedure, which applies to both resident and non-resident infants. The second is under § 473 of the Code of Civil Procedure and applies only to non-resident infant de- fendants, or to those who are residents of this State and are temporarily absent therefrom. Under § 471 it is necessary to secure an order for the publication of Court" or " To Hon. Abraham Sanderson, Judge of the County Court of the County of Orleans." Code Civ. Pro., § 472. The section of the Code last above cited does not clearly, in terms, apply to an application for the appointment of a guardian ad litem for a plaintiff before the action is brought. It provides: "The court in which the action is brought, or a judge thereof, or if the action is brought in the supreme court, the county judge of the county where the action is triable, may appoint a guardian ad litem for an infant, either plaintiff or defend- ant, as prescribed in this article. The clerk must act in that capacity for an in- fant defendant where the court or the judge appoints him. No person, other than the clerk, shall be appointed a guardian ad litem, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment." Of course, when the application for the appointment of a guardian ad litem of a plaintiff is made, no action has yet been brought, and the wording of the first part of § 472 would indicate that it referred only to a case where an action had already been brought. Ordinarily, therefore, it would apply only to an applica- tion for the appointment of a guardian ad litem of a defendant. But the section provides that any of the courts or judges specified may appoint a guardian ad litem for an infant, either plaintiff or defendant, as prescribed in this article. There- fore it is obvious that the words "in which the action' is brought" mean also the 106 Bradbury's lawyers' manual I'etition by Infant over Fourteen for Appointment of Guardian Ad Litem against James Smith for (here briefly state the cause of ac- tion) . Third: That FrankUn Brown, Esq., who is an attorney and counselor at law ^ admitted to practice in this court, as your petitioner is informed and verily believes, is a competent and responsible person, and fully competent to understand the summons, or, in the alternative, that it be served personally on the infants without the State, in which case the summons must be so served and service must be complete by the lapse of at least 42 days after the service before an application can be entertained for the appointment of a guardian ad Klein. If, however, the application is made under § 473 the court may make an order appointing a guard- dian ad. lilem for such absent defendant conditioned upon the failure of the infant to secure the appointment of another person within a specified number of days after the service of the order on such infant defendant, in the manner provided in the statute. The order should specify the manner in which it is to be served on the infant and if by mail, should specify in the body of the order the addresses to which copies of the order are to be mailed. All the foregoing rules are set forth in the case of Taylor v. Emmet, 137 App. Div. 202; 122 Supp. 66, where the conflicting decisions are discussed and the various statutes relating to this pro- ceeding are exhaustively reviewed. A guardian ad litem cannot settle a claim without authority from the court. Wileman v. Met. St. Ry. Co., 80 App. Div. 53; 80 Supp. 233. Nor can an execu- tion be issued on a judgment in an action in which a guardian ad lilem sues on behalf of an infant until the guardian has furnished a proper bond pursuant to Code Civ. Pro., § 474, and Rule 51, Gen. Rules of Prac. For appointment of guardian ad litem in partition action see chapter on Par- tition. court "in which the action is about to be brought" and this is the construction placed upon them by the courts generally. The provision for an appointment to be made by a judge of the county court, where the action is triable in the Supreme Court, is, of course, for the convenience of litigants living outside the larger cities. In some counties there are only a few sessions of the Supreme Court each year, and it might be necessary to send or carry the papers a long distance in many instances to find a judge of the supreme court who would be authorized to act. On the other hand, each county (except New York) has a county judge, whose office is at the county seat, and who is a resident of the county for which he is elected. Therefore, for the convenience of litigants, it is provided that the county judge of the county wherein the action is brought may appoint a guardian ad litem for an infant who expects to bring an action in the Supreme Court in that county. In New York Countj- there is no county court although there are such courts in all the other counties comprising the Greater City of New York. However, as the Supreme Court is always in session in New York County, there is no necessity for the county tribunals. 1 It is not necessary that the guardian ad litem should be a lawyer. GUARDIAN AND AVARD 107 Petition by Infant over Fourteen for Appointment of Guardian Ad Litem and protect the rights of your petitioner and has no interest adverse to your petitioner, nor is he connected in business with the attorney or counsel of the adverse party. Your petitioner is informed and verily believes that said Franklin Brown, Esq., is of sufficient ability to answer to your peti- tioner for any damages which may be sustained by the negli- gence or misconduct of said Franklin Brown, Esq., in the prosecution of the said suit. Fourth: No previous application for the order herein prayed has been made. Wherefore your petitioner prays that said Franklin Brown, Esq., may be appointed guardian ad litem of your petitioner for the purpose of bringing an action against said James Smith for the cause of action hereinbefore stated, pur- suant to the statute in such case made and provided. Dated the day of , 19 . Elias Sargeant, John Jones, Attorney for Petitioner, Petitioner. No. 31 Nassau Street, Borough of Manhattan, New York City. State of New York 1 , f ss * County of New York j John Jones, being duly sworn, says he is the petitioner in the foregoing petition; that the same is true of his own knowl- edge, 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. Sworn to before me this ] John Jones. day of ,19 . j Adam Ellis, Notary Public, New York County. 108 Bradbury's lawyers' manual Affidavit of Proposed Guardian as to Ability FORM NO. 58 Consent of Proposed Guardian to Act {May he endorsed on bottom of petition without repeating title) I, Franklin Brown, consent to become guardian ad litem of John Jones in the action mentioned in the foregoing peti- tion. Dated the day of , 19 . Franklin Brown. State of New York County of New York On this day of , 19 , before me personally came Franklin Brown, to me known and known to me to be the person described in and who executed the fore- going consent, and he acknowledged to me that he executed the same. Adam Ellis, Notary Public, New York County. FORM NO. 59 Affidavit of Proposed Guardian as to Ability {Title Same as Petition) State of New York County of New York J Franklin Brown, being duly sworn, says he is an attorney and counselor-at-law duly admitted to practice as such in the courts of the State of New York; that he is the person named in the annexed petition for appointment as guardian ad litem of John Jones, an infant over the age of fourteen years, in an action about to be commenced against James Smith; that he has no interests adverse to said infant; that deponent is of sufficient ability by answers to said infant, for any damages which may be sustained by deponent's negligence or mis- GUARDIAN AND WARD 109 Court Order Appointing Guardian Ad Litem for an Infant over Fourteen conduct in the prosecution of said suit; that said deponent is worth the sum of dollars over and above all debts and habilities owed or incurred by him, exclusive of property exempt by law from execution. Deponent is not connected in business with the attorney or counsel of the adverse party. Franklin Brown. Sworn to before me, this day of , 19 . Adam Ellis, Notary Public, New York County, FORM NO. 60 Court Order Appointing Guardian Ad Litem for an Infant over Fourteen ^ At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York at the County Court- house therein, on the day of , 19 . Present: Hon. James A. O'Gorman, Justice. In the Matter of the Application of John Jones, an Infant over the Age of Fourteen Years, for the Appoint- ment of a Guardian Ad Litem. An application having been duly made by John Jones, an infant over fourteen years of age, for the appointment of a ,guardian ad litem for the purpose of bringing an action in the Supreme Court against James Smith for {here briefly state the cause of action); now, on reading and filing the petition of said John Jones, verified the day of , 19 ; the consent of FrankUn Brown to become such guardian, dated and duly acknowledged on the day of , ' See notes to petition, Form No. 56. 110 bradbuey's lawyers' manual Judge's Order Appointing Guardian Ad Litem for Infant Over Fourteen 19 ; and the affidavit of Franklin Brown, sworn to the day of , 19 , showing that said Franklin Brown is a proper person to be appointed guardian ad litem pursuant to the statutes and rules of court, and on motion of EUas Sargeant, Esq., attorney for said petitioner, it is hereby Ordered, that Franklin Brown, Esq., be and hereby is appointed guardian ad litem of John Jones, an infant over the age of fourteen years, for the purpose of bringing an action in the Supreme Court against James Smith for {here briefly state the cause of action) . Enter, J. A. O'G., J. s. c. FORM NO. 61 Judge's Order Appointing Guardian Ad Litem for Infant Over Fourteen New York Supreme Court, New York County. In the Matter of the Apphcation of John Jones, an Infant over the Age of Fourteen Years, for the Appoint- ment of a Guardian Ad Litem. An application having been duly made by John Jones, an infant over fourteen years of age, for the appointment of a guardian ad litem for the purpose of bringing an action in the Supreme Court against James Smith for (here briefly state the cause of action); now, on reading and filing the petition of said John Jones, verified the day of , 19 ; the consent of Franklin Brown to become such guardian, dated and duly acknowledged the day of , 19 ; and the affidavit of Franklin Brown, sworn to the day of , 19 , showing that said FrankUn Brown is a proper person to be appointed guardian ad litem pursuant to the statutes and rules of court, and on motion of Elias Sargeant, Esq., attorney for said petitioner, it is hereby GUARDIAN AND WARD 111 Petition for Appointment of Guardian Ad Litem for Infant under Fourteen Ordered, that Franklin Brown, Esq., be and hereby is appointed guardian ad litem of John Jones, an infant over the age of fourteen years, for the purpose of bringing an action in the Supreme Court against James Smith for (here briefly state this cause of action) . Dated New York, , 19 . James A. O'Gorman, Justice of the Supreme Court, of the State of New York. FORM NO. 62 Petition on Application by General ^ or Testamentary Guardian for Appointment of Guardian Ad Litem for Infant under Fourteen ^ (Code Civ. Pro., §§ 469, 470, 472, Gen. Rules of Prac, No. 49) New York Supreme Court, New York County. In the Matter of the Application of William Brown, as General Guard- ian of John Jones, an Infant under the Age of Fourteen Years, for the Appointment of a Guardian Ad Litem for said Infant. To the Honorable Supreme Court, ^ in and for the County of New York: Your petitioner, William Brown, respectfully shows to the Court : First: That your petitioner resides at No. , 1 While the father, and sometimes the mother after the death of the father, is the guardian by nature of infant children, the authority of the father or mother, in - See note to petition, Form No. 56. ' This appUcation may be made to a judge of the Supreme Court instead of being made to the court, or to a judge of the County Court. If made to a judge of the court, the petition should be addressed: "To Hon. Ira Ingraham, Justice of the Supreme Court," or "To Hon. Franklin Wilson, Justice of the County Court of the County of ," Code Civ. Pro., § 472. 112 Bradbury's lawyers' manual Petition for Appointment of Guardian Ad Litem for Infant under Fourteen Street in the Borough of Manhattan, City of New York, and on the day of , 19 , your petitioner was duly appointed General Guardian of the person and estate of John Jones, by a decree duly made by the Surrogate's Court of the County of New York, duly entered and filed on said date, and your petitioner duly qualified by fiUng his bond duly approved by the court as such General Guardian and is still such General Guardian. {If the 'petitioner is a testamentary guardian ^ ap- pointed by will or deed, state the facts.) That said infant, John Jones, is under the age of fourteen years, and is of the age of years, and resides with your petitioner. Second : That an action is about to be begun in the Supreme Court by said infant, John Jones, against James Smith for {here briefly state the cause of action) . Third: That FrankUn Brown, Esq., who is an attorney and counselor at law, admitted to practice in this court, as your petitioner is informed and verily believes, is a competent and responsible person, and fully competent to understand and protect the rights of said infant, and has no interests adverse to said infant, nor is he connected in business with the attorney or counsel of the adverse party. Your petitioner is informed and verily believes that said Frankhn Brown, Esq., is of sufficient abihty to answer to said infant for any damages which may be sustained by the neghgence or misconduct of said Franklin Brown, Esq., in the prosecution of said suit. such a case, only extends to the custody and control of the person not the prop- erly of the infant. Hyde v. Stone, 7 Wend. 354; Fonda v. Van Home, 1,5 Wend. 631. Such a guardianship does not include the term general guardian as used in the statute. True a general guardian may be appointed either of the person or the property of an infant, or of both person and property. But the general guard- ian spoken of in the statute now under discussion means such a guardian ap- pointed by an order of the Surrogate's Court or some other court of competent jurisdiction. It may include a general guardian appointed by a court of another State. Freund v. Washburn, 17 Hun, 543. And when a guardian has been duly appointed by a court of another State he is a proper person to make an appUcation to a court in this State for the appointment of a guardian ad litem in this State. Freund v. Washburn, 17 Hun, 543. '■ A testamentary guardian is one appointed by the deed or last will of the father or mother. But an order should be entered in the Surrogate's Court mak- ing the appointment, based on the will or deed. GUARDIAN AND WARD 113 Consent of Proposed Guardian Ad Litem to Act as Such Fourth: No previous application for the order herein prayed has been made. Wherefore your petitioner prays that FrankUn Brown, Esq., may be appointed guardian ad litem of said infant, John Jones, for the purpose of bringing an action against said James Smith for the cause of action hereinbefore stated, pursuant to the statute in such case made and provided. Dated the day of , 19 . William Brown, Petitioner. Elias Sargeant, Attorney for Petitioner, 31 Nassau Street, Borough of Manhattan, New York City. ss. State or New York County op New York Wilham Brown, being duly sworn, says he is the petitioner in the foregoing petition; that the same is true of his own knowl- edge except as to such matters as are therein stated to be alleged on information and beUef ; and as to those matters he believes it to be true. Sworn to before me, this 1 William Brown. day of ,19 .J Adam Ellis, Notary Public, New York County. FORM NO. 63 Consent of Proposed Guardian Ad Litem to Act as Such I, FrankUn Brown, consent to become guardian ad litem of John Jones in the action mentioned in the foregoing petition. Dated the day of , 19 . Franklin Brown. 114 Bradbury's lawyers' manual Affidavit of Ability of Proposed Guardian State of New York 1 County of New York J ^^ ' On this day of , 19 , before me per- sonally came Franklin Brown, to me known and known to me to be the person described in and who executed the foregoing consent, and he acknowledged to me that he executed the same. Adam Ellis, Notary Public, New York County. FORM NO. 64 Affidavit of Ability of Proposed Guardian {Title same as Petition) ss: State of New York County of New York Franklin Brown, being duly sworn, says he is an attorney and counselor at law, duly admitted to practice as such in the courts of the State of New York, and that he is the person named in the annexed petition for appointment as guardian ad litem of John Jones, an infant under the age of fourteen years, in an action about to be commenced against James Smith; that he has no interests adverse to said infant ; that deponent is of sufficient ability to answer to said infant for any damages which may be sustained by deponent's negligence or miscon- duct in the prosecution of said suit; that deponent is worth the sum of $2,000 over and above all debts and liabilities owed or incurred' by him, exclusive of property exempt by law from execution. Deponent is not connected in business with the . attorney or counsel of the adverse party. Sworn to before me, this Franklin Brown. day of , 19 . Adam Ellis, Notary Public, New York County. GUARDIAN AND WARD 115 Court Order Appointing Guardian Ad Litem FORM NO. 65 Court Order Appointing Guardian Ad Litem ' At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . Present, Hon. Peter A. Hendrick, Justice. In the Matter of the Application of William Brown, as General Guardian of John Jones, an Infant under the Age of Fourteen Years for the Ap- pointment of a Guardian Ad Litem of said Infant. An application having been regularly made by William Brown, as general guardian of John Jones, an infant under the age of fourteen years, for the appointment of a guardian ad litem for said infant for the purpose of bringing an action against James Smith for {here briefly state the cause of action); Now, on reading and filing the petition of William Brown, dated and duly verified the day of , 19 ; the con- sent of Franklin Brown, dated and duly acknowledged the day of , 19 , to become the guardian ' The difference between a court and a judge's order is technical rather than substantial. Usually a court order is made when a motion is decided upon no- tice, and a judge's order is most frequently made where the matter is heard ej; parte. But this rule is not invariable. In the present instance, the Code (§ 472) provides that the order may be made by the court or by a judge of the Supreme Court, or a judge of the County Court. It is immaterial, therefore, whether this order is made by the court or by a judge of the court, or by a judge of the County Court. The only difference is that where the application is addressed to the court, the order should contain a caption and a direction should be made to enter it as in the foregoing form. If it is made by a judge and not by the court, it should be signed with the full signature of the judge as in the next form. In either case the order and the papers upon which it was granted should be filed and entered in the offioe of the clerk. 116 Bradbury's lawyers' manual Judge's Order Appointing Guardian Ad Litem ad litem of said infant; and the affidavit of Franklin Brown, sworn to the day of , 19 , showing that said Frankhn Brown is of sufficient abiUty to answer to said infant for any damages which may be sustained by the negU- gence or misconduct of said Frankhn Brown in the prosecution of said suit, and on motion of Ehas Sargeant, Esq., attorney for said petitioner, and no one appearing in opposition thereto, it is hereby. Ordered, that Franklin Brown be and hereby is appointed guardian ad litem of John Jones for the purpose of bringing an action in the Supreme Court against James Smith for {h&re briefly state the cause of action) . Enter, P. A. H., J. S. C. FORM NO. 66 Judge's Order Appointing Guardian Ad Litem New York Supreme Court, New York County. In the Matter of the AppHcation of William Brown, as General Guardian of John Jones, an Infant under the Age of Fourteen Years, for the Ap- pointment of a Guardian Ad Litem for said Infant. An apphcation having been regularly made by Wilham Brown, as general guardian of John Jones, an infant under the age of fourteen years, for the appointment of a guardian ad litem for said infant for the purpose of bringing an action against James Smith for {here briefly state the cause of action) ; Now, on reading and fiUng the petition of Wilham Brown, dated and duly verified the day of , 19 ; the consent of Frankhn Brown, dated and duly acknowledged the day of , 19 , to become the guardian GUARDIAN AND WARD 117 Notice of Motion for Appointment of Guardian Ad Litem ad litem of said infant; and the affidavit of Franklin Brown, sworn to the day of , 19 , showing that said Franldin Brown is of sufficient abiUty to answer to said infant for any damages which may be sustained to said infant by the neghgence or misconduct of said Franklin Brown in the prosecution of said suit, and on motion of Ehas Sargeant, Esq., attorney for said petitioner, and no one appearing in opposition thereto, it is hereby. Ordered, that Franklin Brown, be and hereby is appointed guardian ad litem of John Jones for the purpose of bringing an action in the Supreme Court against James Smith for (here briefly state the cause of action). Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. FORM NO. 67 Notice of Motion for Appointment of Guardian Ad Litem ' New York Supreme Court, New York County. In the Matter of the Application of William Jones, as General Guardian of John Jones, an Infant under the Age of Fourteen Years, for the Ap- pointment of a Guardian Ad Litem of said Infant. Please take notice, that on the annexed petition of William Jones, verified the day of , 19 , and on the consent of Franklin Brown, duly acknowledged the day of , 19 , and the affidavit of Franklin Brown, ' If a general or testamentary guardian of the infant has been appointed this notice must be served on such guardian; but if no such guardian has been ap- pointed then the notice must be served on the person with whom the infant 118 Bradbury's lawyers' manual Notice of Motion for Appointment of Guardian Ad Litem sworn to the day of , 19 , a motion will be made 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 Courthouse therein, on the day of ,19 , at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard for an order appointing Franklin Brown, Esq., guardian ad litem of John Jones, an infant under the age of fourteen years, for the purpose of bringing an action in the Supreme Court against James Smith for {here briefly state the cause of action) and for such other, further and different relief as may be proper. Dated New York, the day of , 19 . Yours &c., Elias Sargeant, Attorney for Petitioner, To No. 31 Nassau Street, Elizabeth Jones, Borough of Manhattan, No. , Street, New York City. Borough of Manhattan, City of New York. resides. Code Civ. Pro., § 470. In actual practice it frequently happens that the application is made by the father of the infant with whom the infant resides. In such cases if no general or testamentary guardian has been appointed of the in- fant the application by the father himself does away with the necessity of notice, but in such a case it must clearly appear in the petition that the infant does reside with the petitioner, and that the infant has no testamentary or general guardian. GUARDIAN AND WARD 119 Petition for Appointment of Guardian Ad Litem for Infant Under Fourteen FORM NO. 68 Petition by Relative or Friend for Appointment of Guardian Ad Litem for Infant Under Fourteen ^ (Code Civ. Pro., §§ 469, 470, 472; Rule 49, Gen. Rules Prac.) New York Supreme Court, New York County. In the Matter of the AppUcation of William Jones, the Father of John Jones, an Infant under the Age of Fourteen Years, for the Appoint- ment of a Guardian Ad Litem. To the Honorable Supreme Court ^ in and for New York County: Your petitioner, William Jones, respectfully shows to the Court: — First: That your petitioner resides at No. , Street, in the City of New York, and is the father of John Jones, an infant under the age of fourteen years, to-wit, of the age of years. Second: That no general or testamentary guardian has been appointed of said infant. Third: That said infant, John Jones, resides with his grand- mother, your petitioner's mother, Elizabeth Jones, at No. , Street, in the Borough of Manhattan, City, County and State of New York. Fourth: That an action is about to be commenced by said infant, John Jones, in the Supreme Court (or other court, naming it) against James Smith for (here briefly state the cause of action) . Fifth: That Franklin Brown, Esq., who is an attorney and counselor at law, admitted to practice in this court as your petitioner is informed and verily believes, is a competent and ' See note.s to Forms Nos. 56 and 61. *See note to Form No. 65. 120 Bradbury's lawyers' manual Petition for Appointment of Guardian Ad Litem for Infant Under Fourteen responsible person and fully competent to understand and pro- tect the rights of said infant, John Jones, and has no interest adverse to said infant, nor is he connected in business with the attorney or counsel of the adverse party. Your petitioner is informed and verily believes that said Franklin Brown, Esq., is of sufficient ability to answer to said John Jones to any dam- ages which may be sustained by the negligence or misconduct of said Franklin Brown, Esq., in the prosecution of said suit. Sixth: No previous appUcation for the order herein prayed for has been made. WHEREroRE, your petitioner prays that said Franklin Brown, Esq., may be appointed guardian ad litem of said John Jones for the purpose of bringing an action against the said James Smith for the cause of action hereinbefore stated, pursuant to the statute in such case made and provided. Elias Sargeant, William Jones, Attorney for Petitioner, Petitioner. 31 Nassau Street, New York City. ss: State of New York County of New York William Jones, being duly sworn, says he is the petitioner in the foregoing petition; that the same is true of his own knowledge, except as to such matters as are therein stated to be alleged on information and beUef ; and as to those matters he beUeves it to be true. Sworn to before me, this | William Jones. day of , 19 Adam Ellis, Notary Public, N. Y. Co. GUARDIAN AND WARD 121 Affidavit of Ability of Proposed Guardian FORM NO. 69 Consent of Proposed Guardian to Act (May be endorsed on bottom of petition without repeating title) I, Franklin Brown, consent to become guardian ad litem of John Jones in the action mentioned in the foregoing petition. Dated the day of , 19 . Franklin Brown. State of New York f SS * County of' New York On this day of , 19 , before me per- sonally came Franklin Brown, to me known and known to me to be the person described in and who executed the foregoing consent, and he acknowledged to me that he executed the same. Adam Ellis, Notary Public, N. Y. Co. FORM NO. 70 Affidavit of Ability of Proposed Guardian {Title same as Petition) State of New York County of New York ' Franklin Brown, being duly sworn, says he is an attorney and counselor at law, duly admitted to practice as such in the courts of the State of New York, and that he is the person named in the annexed petition for appointment as guardian ad litem of John Jones, an infant under the age of fourteen years, in an action about to be commenced against James Smith; that he has no interest adverse to said infant; that deponent is of sufficient ability to answer to said infant for any damages which may be sustained by deponent's negligence or miscon- duct in the prosecution of said suit; that deponent is worth the 122 bradbuey's lawyers' manual Court Order Appointing Guardian Ad Litem for Infant under Fourteen sum of $2,000 over and above all debts and liabilities owed or incurred by him, exclusive of property exempt by law from execution. Deponent is not connected in business with the attorney or counsel of the adverse party. Sworn to before me, this 1 Franklin Brown. day of , 19 . J Adam Ellis, Notary Public, N. Y. Co. FORM NO. 71 Court Order ^ Appointing Guardian Ad Litem for Infant under Fourteen At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. In the Matter of the Application of William Jones, the Father of John Jones, an Infant under the Age of Fourteen Years, for the Appoint- ment of a Guardian Ad Litem of said Infant. A motion having been duly made for the appointment of Franklin Brown, as guardian ad litem of John Jones, an infant under the age of fourteen years, for the purpose of bringing (defending) an action in the Supreme Court against James Smith (said infant) for {here briefly state the cause of action), ' If the order is made in the Supreme Court of New York County, on the peti- tion of an infant over the age of fourteen years, it would naturally be made with- out notice being given to any person, and would be such an ex parte order as must be made at Special Term, Part II, or by the judge sitting at that part. If, how- ever, the infant is under fourteen years of age and it is necessary to give notice of the application, the motion would have to be made at Special Term, Part I, GUARDIAN AND WARD 123 Court Order Appointing Guardian Ad Litem for Infant under Fourteen (and the summons therein having been duly served on said infant) and said motion having come on regularly to be heard; now, on reading and filing the notice of motion dated the day of , 19 ; the petition of William Jones, the general guardian of said John Jones, duly verified the day of ,. 19 ; the consent of Franklin Brown, Esq., to become such guardian ad litem, dated and duly acknowledged the day of , 19 ; the affidavit of Franklin Brown, Esq., sworn to the day of , 19 , showing that he is of sufficient ability to become such guardian ad litem as required by the statutes and rules of court; and the affidavit of Adam Smith, sworn to the day of , 19 , showing that said notice of motion and the papers on which the same was founded, were duly served on Elizabeth Jones, the person with whom said infant John Jones resides^ at No. , , Street, in the Borough of Manhattan, City and State of New York, on the day of , 19 , in favor of said mo- tion {if any affidavits were submitted in opposition thereto, recite the same) and on motion of Elias Sargeant, Esq., attorney for the petitioner, and no one appearing in opposition thereto (if there was opposition to the motion, change the recital above as to attorneys so as to read as follows: and after hearing Elias Sargeant, Esq., attorney for the petitioner, in favor of said motion, and George French, Esq., attorney for , in opposition thereto, and due deliberation having been had, now on motion of Elias Sargeant, Esq., attorney for the peti- tioner), it is hereby Ordered, that said motion be and the same hereby is granted, and F. Brown, Esq., be and hereby is appointed guardian ad litem of John Jones, an infant under the age of fourteen years, for the purpose of bringing (defending) an action against James as it might be a litigated motion even though it is possible that the person on whom the notice is served would not oppose it. This practice would only be peculiar to New York County where ex parte motions and litigated motions are heard at different parts. Anywhere else in the state the motion might be made returnable wherever the rules provide for the hearing of Special Term motions, and if made by a judge, it could be made at any time in or out of court.' 124 Bradbury's lawyers' manual Bond of Guardian Ad Litem Smith (said infant) in the Supreme Court for (here briefly state the cause of action). Enter, P. A. H., J. S. C. FORM NO. 71a Bond of Guardian Ad Litem * (Code Civ. Pro., §§ 474, 475; Rule 51, Gen. Rules of Prac.) New York Supreme Court, New York County. A.B., ' Plaintiff, against CD., Defendant. Know all men by these presents that We, Franklin Brown as principal, and George Henry as siirety, are jointly and severally held and firmly bound to A. B., the infant plain- tiff in the above-entitled action, in the sum of 1 Under Rule 51 of the General Rules of Practice it is doubtful whether the ordinary affidavits of justification are available or of any use on a bond for a guardian ad litem under Riile 51, as it now reads, because the bond must be se- cured by a mortgage on improved and unencumbered real property, if given by an individual. Otherwise it must be given by a surety company. The foregoing bond would be in proper form for a surety company, except that it would recite the surety company instead of the surety above named, George Henry. If given by a surety company there would be the usual affidavit of justification by the company, and it would appear that the surety company had signed the bond in- stead of the individual, George Henry. It is apparent that bonds will rarely be given by an individual under Rule 51, as it now stands, because neither a guardian nor a surety for a guardian would care to tie up improved, unencumbered real property in such a manner. If, however, such a bond is given, a mortgage should accompany it, reciting that the consideration for the mortgage was the giving of the bond and that the mortgage should become void upon the performance by the guardian of his duties in the same way that this is recited in the foregoing bond. Neither the rules nor the statutes specify the procedure by which the court can determine whether or not the real estate is unencumbered and of suf- ficient value to constitute proper security. Doubtless this would be required to be shown in the form of an affidavit, in which either the person offering the se- curity, or some third person, who qualified as art expert, should testify in the GUARDIAN AND WARD 125 Bond of Guardian Ad Litem dollars, of which sum well and truly to be paid, we bind our- selves, our heirs, executors and administrators. Whereas, the above bonded Franklin Brown has been appointed guardian ad litem of A. B., the infant plaintiff in the above-entitled action in the New York Supreme Court, in New York County, in which C. D. is the defendant; now the condition of this bond is such that if the said FrankUn Brown shall faithfully discharge the trust committed to him as such guardian and shall render a just and true account of his guard- ianship in any court or place, whenever required, and shall account for and apply any money or property received by him as such guardian under the direction of the court, then this bond shall be null and void, otherwise to remain in full force and virtue. In witness whereof, said Franldin Brown and George Henry, have hereunto set their hands and seals this day of , 19 . Franklin Brown, George Henry. State of New York County op New York ' On this day of , 19 , before me per- sonally came Franklin Brown and George Henry, to me known and known to me to be the persons described in and who executed the foregoing bond and they severally acknowl- edged to me that they executed the same. (Signature and title of oficer.) form of an affidavit, that the property was improved and that the income there- from was a certain amount, which should be specified, and that the carrying charges were a certain amount, which should be specified, and that the net in- come was a certain amount, which should be specified, with an opinion that the property was of a value which should be stated. There should also be an affi- davit of the owner of the property who gave the bond that it was unencumbered. Of course, if the property was a private residence, which was occupied by the person who gave the bond, it would not be necessary to state the income there- from, but it would be necessary to specify all the other circumstances in relation to the property, so that the court could determine whether or not it was of the value stated. Doubtless the court might require the person offering the bond to appear for examination concerning the property, or might require further af- fidavits of an expert by way of appraisal. 126 Bradbury's lawyers' manual Petition by Infant over Fourteen for Appointment of Special Guardian ARTICLE C. SPECIAL GUARDIAN » FORM NO. 72 Petition by Infant over Fourteen Years of Age for Appointment of Special Guardian Supreme Court, New York County. A. B., Plaintiff, against C. D. and others. Defendants. To the Supreme Court in and for the County of New York : Your petitioner, E. F., respectfully shows: I. That he is an infant over the age of fourteen years and that he was born on the day of , 19 . ' A special guardian is one who is appointed in a proceeding already instituted to protect the interests of an infant or other incompetent in those proceedings. Such a, guardian is more often appointed in the Surrogate's Court than in any other tribunal. There are a number of instances, however, in which such a guard- ian is appointed in special proceedings in the Supreme Court. The duties of a special guardian are considerably different from those of a guardian ad litem. A guardian ad litem is appointed for the purpose of prosecuting or defending the action. A special guardian is appointed merely to protect the interests of the infant by inquiring into the proceedings and seeing that the infant is not preju- diced by anything which is done in the proceedings. The special guardian then makes a repor^ to the court and the decree which is finally entered is based, so far as the infant's interests are concerned, to a considerable extent on the re- port thus made. While a, special guardian, therefore, acts to a considerable ex- tent in the same capacity as the guardian ad litem for an infant defendant, in many instances the relation nevertheless is different in many respects and the procedure of the two different kinds of guardians is entirely different. A guardian ad litem defends the infant and requests a decree to be made in the same way that a pai'ty does. A special guardian simply inquires into the matter and makes his report to the court and while his report undoubtedly affects the decision which is to be entered a special guardian bears an entirely different relation to the court from that which is borne by the guardian ad litem. There are a vei'y great variety of proceedings in which special guardians are appointed. In almost every proceed- ing in the Surrogate's Court, where an infant is interested, such a guardian is ap- GUARDIAN AND WAED 127 Petition by Infant over Fourteen for Appointment of Special Guardian II. That the above-entitled action {proceeding) has been begun in the Supreme Court in and for the County of New York and in such action {proceeding) the interests of your petitioner are involved and unless they are protected by a special guardian such interests might be prejudiced by such omission; that is to say {here state what interest the infant has in the proceeding and why his interest should be protected by a special guardian; also state additional facts as to general guardian, etc., as in the next paragraph) . III. (7/ the proceeding is in the Surrogate's Court the follow- ing allegations should be inserted:) Your petitioner is one of the persons named in the citation issued in the above-entitled, pro- ceeding and the citation therein was duly served on your pe- titioner on the day of , 19 , and your petitioner has no general or testamentary guardian in the State of New York, and your petitioner's parents are C. F. and G. F., who reside at Street, in the City, County and State of New York. {Or if the petitioner's parents are dead, or if only one of them is surviving then state the facts and state the name and address of the person with whom the petitioner is living and the place where he resides and the relation of such person to the pe- titioner.) IV. Your petitioner is advised and verily believes that , Esq., counselor at law, of Street, City and County of New York, is a competent person to be appointed such special guardian and is fully competent to understand and protect the rights of yom- petitioner; that he has no inter- pointed. The same is true in many special proceedings in the Supreme Court, although, of course, an infant may institute a special proceeding in certain cases through a guardian ad litem in the same manner that he could institute an action. For example, a special guardian is appointed on an apphcation to sell, mortgage, release or lease real property or an interest in real property of an infant, Code Civ. Pro., § 3252; and in condemnation proceedings. Code Civ. Pro., § 3372. The Supreme Court has power to appoint a special guardian for an infant or an incompetent person in any action or proceeding, when it appears to the court necessary for the proper protection of the interest of such incompetent person, and fixing the fees for such guardian, except when it is otherwise expressly pro- vided by law. Code Civ. Pro., § 477a, which was added by L. 1916, c. 440, in effect September 1, 1916. 128 Bradbury's lawyers' manual Consent of Special Guardian to Act ests adverse to your petitioner and is not connected in business with the attorney or counsel of the adverse party and that he is of sufficient abihty to answer to petitioner for any damage which may be sustained by petitioner by the negUgence or misconduct of said , Esq., and your petitioner therefore prays that said , Esq., be appointed special guardian to appear in the above-entitled proceeding for your petitioner and to protect his interests therein. V. No previous application for such an order has been made. Wherefore your petitioner prays that an order of this com-t may be made appointing the said , Esq., counselor at law, as Special Guardian for the petitioner to appear for him and to protect his interests therein. Dated the day of , 19 . E. F., Petitioner. State of New York County of New York ' E. F., being duly sworn, deposes and says that he is the petitioner named in the foregoing petition; that the foregoing petition is true of his own knowledge except as to such matters as are therein stated to be alleged on information and behef and that as to those matters he beheves it to be true. Sworn to before me, this 1 E. F. day of , 19 . {Signature and title of officer.) FORM NO. 73 Consent of Special Guardian to Act {May be endorsed on the foot of the petition without additional title) I, , counselor at law, hereby consent to be appointed by the Court the Special Guardian of E. F., an infant over fourteen years of age, for the purpose of GUARDIAN AND WARD 129 Affidavit of Special Guardian as to Competency appearing for and taking care of his interests in the above- entitled proceeding. Dated the day of , 19 . {Signature of proposed guardian.) State of New York County or New York ss: City of New York J On this day of , 19 , personally ap- peared before me to me known and known to me to be the person described in and who executed the foregoing instrument and he acknowledged to me that he executed the same. {Signature and title of officer taking acknowledgment.) FORM NO. 74 Affidavit of Special Guardian as to Competency . Supreme Court, New York County. A. B., Plaintiff, against CD. and others. Defendants. State of New York County of New York f-ss: City of New York G. H., being duly sworn, says that he is an attorney and counselor at law, duly admitted to practice as such in the courts of the State of New York and that he is the person named in the annexed petition for the appointment of guardian ad litem of E. F., an infant over the age of fourteen years, in the above-entitled proceeding; that he has no interest adverse to said infant; that deponent is not connected in business with the attorney or counsel for any adverse party, that deponent is of sufficient ability to answer to said infant for any damage which 130 bradbuby's lawyers' manual Court, Order Appointing Special Guardian may be sustained by deponent's negligence or misconduct in the said proceeding; that deponent is worth the sum of dollars over and above all debts and liabilities incurred by him exclusive of property exempt by law from execution. Sworn to before me, this ] G- H. day of 19 . (Signature and title of officer.) FORM NO. 75 Court 1 Order Appointing Special Guardian At Special Term,^ Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D. and others. Defendants. An application having been regularly made by E. F.,' an infant over the age of fourteen years, for the appointment of a special guardian in the above-entitled action (proceeding) for the purpose of protecting the interests of said E. F., ' It should be observed that § 477a of the Code of Civil Procedure, as added by L. 1916, c. 440, in effect September 1, 1916, provides that "the Supreme Court" may appoint a special guardian. It appears therefore that unless there is a special i-ule to the contrary in a particular case that the order appointing a special guard- ian should be made by the covrt where it is made in the Supreme Court and usually the order is made by the court when made by the Surrogate's Court. ^ If the motion for special guardian is made on notice, which is very rarely done, it would come on for hearing in New York County in Special Term, Part I, instead of Special Term, Part II, in which case the caption would read accord- ingly. ' If the application for a special guardian is not made by one of the pai-ents or the guardian of the infant it should appear either that the parents did not object to such appointment or that notice of the application was given to such parents. If the parents consent, their consent should be in the form of an affidavit which is filed on the application. GUARDIAN AND WARD 131 Court Order Appointing Special Guardian • Now, on reading and filing the petition of E. F., dated and duly verified the day of 19 ; the consent of , dated and duly acknowledged the day of 19 , to become the special guardian of said infant, and the affidavit of sworn to the day of , 19 , showing that said is of sufficient ability to answer to said infant for any damages which may be sustained by the negligence or misconduct of said in said action (proceeding) and on motion of , Esq., attorney for said petitioner, and no one appearing in opposition thereto (or if the motion is on notice and there is opposition, recite the papers which are read in opposition and also the appearance of the counsel and then add), and due deUberation having been had, it is hereby Ordered, that , Esq., be and hereby is ap- pointed special guardian of E. F., an infant over the age of fourteen years, for the purpose of protecting the interests of said infant in the above-entitled action (or proceeding), and it is Further ordered (in such exceptional cases as a bond is required to be given by a special guardian, include the recital): that before entering upon his duties the said special guardian shall cause to be executed, approved and filed with the court a bond with sufficient sureties to be approved by the court in accordance with the law in the penalty of dollars, conditioned upon the faithful performance of his duties as such special guardian and the accounting and turning over to said infant any money and property which he may receive in said proceeding on behalf of said infant and that he will obey any direction of the court in relation to such money or property. Enter, P. A. H., J. S. C. 132 Bradbury's lawyers' manual Report of Special Guardian FORM NO. 76 Report of Special Guardian ^ Supreme Court, New York County. A. B., Plaintiff, against C. D. and others. Defendants. To the Supreme Court of the County of New York: I, , heretofore appointed special guardian of E. F., an infant, for the purpose of appearing for him and pro- tecting his rights and interests in the above-entitled proceed- ing, do respectfully report : {Here give an account of all the proceedings which the special guardian has taken and his recommendations as to what decision or decree should he entered in respect to the infant's interests.) Dated the day of 19 . Respectfully submitted. Special Guardian. State op New York County of New York ' G. H. being duly sworn says that he is the special guardian appointed in the above proceeding for E. F., an infant, and the foregoing report of his proceedings is true. Sworn to before me, this 1 G. H. day of , 19 . J (Signature and title of officer.) '■ There is nothing in the rules or Code requiring a special guardian's report to be verified by affidavit, although it is sometimes done. CHAPTER VII ACKNOWLEDGMENTS ^ FORMS NO. PAGE 77. By one or more grantors known to officer — short form 133 78. By one or more grantors known to officer — long form 135 79. By a grantor identified by a, witness . . 136 80. By two persons, one known and one identified 137 81. By a subscribing witness known to the officer 137 82. By witness not known but identified, etc 138 83. Proof of the execution of a deed when the subscribing witnesses are dead 139 84. By husband and wife known to the officer 140 85. By two husbands and their wives 140 86. By wife in separate certificate 141 87. By a husband and wife iden- tified by a witness 141 88. By husband known and wife identified 142 89. By a subscribing witness of a NO. PAGE deed executed by a husband and wife 142 90. By witness identified in a case similar to the last 143 91. By a sherifif, referee, or re- ceiver 143 92. By under-sheriff in the name of sheriff 144 .93. By an administrator, executor or trustee 144 94. By a person conveying by a power of attorney 145 95. By firm by one partner 145 96. Acknowledgment by corpora- tion 146 97. Certificate of authentication when an acknowledgment is taken in one county in the State to be used in another county in the State 146 98. Certificate of authentication when an acknowledgment is taken without the State to be used within the State. . . 147 FORM NO. 77 By One or More Grantors Known to Officer — Short Form State op New York County of ss: City (or Town) op On this day of , 19 , personally ap- peared before me A. B. (and C. D.) (severally) known to me, ' Acknowledgment in its simplest form means an admission before a public 133 134 Bradbury's lawyers' manual By One or More Grantors Known to Officer — Short Form and to me known to be the (several) person (s) described in {or, one of the persons described in) and who (severally) exe- officer that the person acknowledging has executed a particular document. It is for the purpose of making the admission of the acknowledging party a matter of record by a public official so that the document may be self-proving, if offered in evidence, in a court at law, or that it may be recorded, if an instrument in rela^ tion to real property. In relation to documents affecting the title to real property the practice is necessary because the instruments themselves are merely left for record and after they have been transcribed as public records the originals are returned to the owner thereof. It was found necessary, therefore, to have some method of authentication by public officials. As to documents other than those affecting the title to real property the reason for having them acknowledged is that they become self-proving when offered in court; that is, on the face of the documents themselves, they contain an admission which is certified to by a pubUc official, that the person executing the document admitted or acknowledged that he executed the same. All documents may be thus acknowledged, except promissory notes, bills of exchange and wills. Code Civ. Pro., § 937. There is a great distinction between an affidavit and an acknowledgment, both in the formality attending their taking and their effect as proof of their contents. While affidavits are frequently received in evidence on preliminary motions and in various court proceedings this is almost invariably because the circumstances of the case make it practically impossible to bring better evidence before the court at the moment. They are offered in such proceedings by the parties who, by the fact of such offer, in effect certify that they have been executed by the parties whose names appear attached thereto. The mere fact that the same officer who has taken the affidavit may also be authorized under the law to take an acknowledgment does not make the affidavit evidence in the same way that it would have been made if it had been acknowledged. The reason for this is that an acknowledgment certifies as to the identity of the party, while an affidavit does not. The reason an affidavit, instead of an acknowledged document is used is that the affidavit is under oath, while the paper acknowledged is not and in court proceedings most matters are required to be under oath. The character of a document which is acknowledged, as distinguished from an affidavit, is almost invariably entirely different. An affidavit is usually a recital of facts or occur- rences, while a document which is acknowledged is usually a contract, an admis- sion, consent or other paper of that character. It should not be understood that if the matter which is usually put in an affidavit were instead put in a document which was acknowledged that it would make this document evidence before the court at the trial. In other words, the oral testimony of a witness cannot be dis- pensed with by putting such testimony in documentary form and then acknowl- edging it. It is true that depositions of witnesses are sometimes taken in docu- mentary form before an official appointed for that purpose and are then read in evidence, but in such cases the evidence is taken with many of the formalities of a court proceeding. But contracts, admissions, consents and various other documents of that kind become self-proving when they are offered in court, as- suming that the documents themselves are relevant to the matter in issue. The ACKNOWLEDGMENTS 135 By One or More Grantors Known to Officers — Long Form cuted the foregoing instrument and (severally) acknowledged that he (they severally) executed the same. {Signature and title of officer.) FORM NO. 78 By One or More Grantors Known to Officer — Long Form ss: State of New York County of City (or Town) of On this day of , 19 , 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 , residing therein, personally appeared A. B. (and CD.) (severally) personally known to me and to me known to be the (several) person (s) described in and who executed the foregoing (above, or, an- nexed) instrument (or, deed, or, conveyance) and he (they severally) acknowledged that he (they 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. (Notarial seal.) {Signature and title of officer.) acknowledgment merely is a certification by a public official as to the identity of the person who executed the document and that the particular person therein mentioned admitted to this pubUc official that he did so execute it. The acknowl- edgment then merely takes the place of proof of the execution of the document and if it would be admissible in evidence if proof was offered of its execution then it is admissible if it is properly acknowledged before an officer authorized by law to take such acknowledgments. 136 Bradbury's lawyers' manual By a Grantor Identified by a Witness FORM NO. 79 By a Grantor Identified ' by a Witness State of New York 1 County of J On this day of , 19 , before me per- sonally came the above-named G. H., the grantor named in the foregoing instrument, and acknowledged that he had executed the foregoing instrument for the uses and purposes therein mentioned; 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 'Section 303 of the Real Property Law provides that "an acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument." If the certificate of acknowledgment does not state that the officer taking it knew that the person making it was the individual described in and who executed the instrument it is defective. Moran v. Stader, 52 Misc. 385; 103 Supp. 175; Veil v. Schwob, 127 App. Div. 171; 111 Supp. 286; People ex rel. Say- ville Co. V. Kempner, 49 App. Div. 121; 63 Supp. 199. In very few cases have the courts discussed the manner in which a notary public may become acquaiated with a person making the acknowledgment in such a way to satisfy the notary of the identity of the party. The usual practice undoubtedly is that where a person known to the notary and in whom he has confidence introduces to the notary a person as the one making the acknowledg- ment the notary takes this introduction as a basis for his action in certifying aa to the identity of the party. Some very careful notaries refuse to take an ac- knowledgment, especially to a conveyance Of real property, without a personal acquaintance with the person acknowledging. As it is a serious penal offence for a notary to take a false acknowledgment, where he has no proper information as to the identity of the person who appears, it is unquestionably necessary for the notary to be well satisfied on this point. However, it undoubtedly is the prac- tice for notaries to take the introduction of persons whom they know well and in whom they have confidence as to such identity without a previous acquaintance with the person making the acknowledgment. However, a notary should never take an acknowledgment by a person with whom he is not acquainted upon the introduction of a person also with whom he is not acquainted. In such a case he should refuse to take the acknowledgment at all. If the introducer is known, the proper practice is to take proof by affidavit in accordance with Form No. 79. Indeed, it is often safe to use this form where the notary does not have especial confidence in the man who is making the introduction. ACKNOWLEDGMENTS 137 By a Subscribing Witness Known to the Officer he knew the said G. H., the person appearing before me and making said acknowledgment, to be the individual described in and who executed the said instrument ; which to me is satis- factory evidence thereof. {Signature and title of officer.) ''\ %^ FORM NO. 80 /- By Two Persons, One Known and One Identified State of New York 1 County of J ' On this day of , 19 , before me per- sonally came L. M. and N. 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 executed the foregoing instrument; and at the same time appeared before me R. 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 instru- ment, which is to me satisfactory evidence thereof. {Signature and titU of officer.) FORM NO. 81 By a Subscribing Witness Known to the Officer State of New York County of On this day of , 19 , before me came E. F., personally known to me and to me known to be the subscribing witness within named, who, being by me sworn, did depose and say, that he resides in the town of Nassau, 138 Bradbury's lawyers' manual By Witness not Known but Identified, etc. 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 NO. 82 By Witness not Known but Identified, etc. ss: State of New York County of On this day of , 19 , before me came R. B., who, being by me duly sworn, did depose and say, 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.) ACKNOWLEDGMENTS 139 Proof of the Execution of a Deed when the Subscribing Witnesses are Dead FORM NO. 83 Proof of the Execution of a Deed when the Subscribing Witnesses are Dead ^ (Real Property L., § 314) State op New York County of ' I hereby certify on the day of , 19 , before me came B. B., to me known, and to' whom the foregoing 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 ac- quainted 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 hand- writing of the said C. C; and the said B. B. further 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 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 had never known or heard of any other person of the name of A. P., and that he cannot say in whose hand- ' This certificate must be signed by some officer other than a notary public, justice of the peace, or commissioner of deeds. See Real Property L., § 314. 140 Bradbury's lawyers' manual By Two Husbands and Their Wives writing the name last mentioned is subscribed to the 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 grantor. {Signature, title and seal of officer.) FORM NO. 84 By Husband and Wife Known to the Officer ss: State of New York County of On this day of , 19 , 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 purposes therein mentioned. {Signature and title of officer.) FORM NO. 85 By Two Husbands and Their Wives ss: State of New York County of On this day of , 19 , before me per- sonally and severally came A. A., and B. A., his wife, and C. C, and D. C, his wife, all to me known and known to me to be the several persons described in and who executed the within in- strument, and severally acknowledged that they severally exe- cuted the same for the uses and purposes therein mentioned. {Signature and title of officer.) ACKNOWLEDGMENTS 141 By a Husband and Wife Identified by a Witness FORM NO. 86 By Wife in Separate Certificate ss: State of New York County of I hereby certify that on this day of , 19 , 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 of officer.) FORM NO. 87 By a Husband and Wife Identified by a Witness ss: State of New York County of On this day of , 19 , L. M., and N. M., his wife, personally came before me and severally acknowledged that they had severally executed the within (or, foregoing) conveyance (or, instrument) for the uses and purposes therein mentioned; and at the same time came before me R. 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 N. M., to be the same individuals described in and who executed the within convey- ance, which to me is satisfactory evidence thereof. {Signature and title of officer.) 142 Bradbury's lawyers' manual By a Subscribing Witness of a Deed Executed by a Husband and Wife FORM NO. 88 By Husband Known, and Wife Identified State of New York | County op J On this day of , 19 , before me came the within-named A. B., and C. B., his wife, and severally acknowl- edged that they had severally executed the within instrument; 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 before me came S. R., 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. B., 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. 89 By a Subscribing Witness of a Deed Executed by a Husband and Wife IState of New York 1 County of J On the day of j 19 , before me came 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. L., 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. L., his wife, execute the same, and that thereupon he became the subscribing witness thereto; ACKNOWLEDGMENTS 143 By a Sheriff, Referee, or Receiver that at the time of such execution the said K. L., and P. L., his wife, were residents of the city of Boston, in the State of Mas- sachusetts, and the said conveyance was executed in the said city of Boston. Sworn to before me, this 1 R. P. day of , 19 . j (Signature and title of officer.) FORM NO. 90 By Witness Identified in a Case Similar to the Last (Leave out in the second line of the last form the words "to me known," and add at the end of the form the following:) 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 R. 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.) FORM NO. 91 By a Sheriff, Referee, or Receiver State of New York | County of J On the day of , 19 , 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 foregoing instrument, and acknowledged that he executed same as such sheriff (or, referee, or, receiver), for the uses and purposes therein mentioned. (Signature and title of officer.) 144 Bradbury's lawyers' manual By an Administrator, Executor, or Trustee FORM NO. 92 By Under-sheriff in the Name of Sheriff State of New York | County of J ' ^ On this day of ; 19 , before me per- sonally came J. G., to me personally know to be the under- sheriff of H. M., Esq., the sheriff of the county of Essex, the person described in and who executed the foregoing convey- ance, and he acknowledged that he executed the same in the name and as the act and deed of the said sheriff. {Signature and title of officer.) FORM NO. 93 By an Administrator, Executor, or Trustee ^ss: State of New York County of I hereby certify that on this day of , 19 , 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 Watervliet, 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 instrument and acknowledged that he executed the same as such administrator. {Executor or trustee.) {Signature and title of officer.) ACKNOWLEDGMENTS 145 By Firm by One Partner FORM NO. 94 By a Persoa Conveying by a Power of Attorney State of New York County of On this day of , in the year , before me personally . came to me personally known to be the person described and appointed attorney in fact in and by a certain power of attorney executed by bearing date the day of and re- corded in the office of the register (or clerk) of the County of , on the day of > 19 , (or to be recorded in the office of the of the County of simultaneously with the within instrument) and acknowledged to me that he had executed the within (or fore- going) instrument as the act of the said {Signature and title of officer.) FORM NO. 95 By Firm by One Partner hss: State of New York County of On this day of , 19 , personally ap- peared before me , personally known to me to be a member of the firm of , and to me known to be the person described 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.) 146 BRADBURY'S LAWYERS' MANUAL Certificate of Authentication when Acknowledgment is used in Another County FORM NO. 96 Acknowledgment by Corporation [N. Y. Real Property Law (L. 1896, c. 547; as am'd L. 1909, c. 52) § 309] State of New York 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 resides 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 knows the seal of said corpora- tion; that the seal affixed to said instrument is 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 be stated in place of the statements required respecting the seal.) FORM NO. 97 Certificate of Authentication when an Acknowledgment is Taken in One County in the State to be used in Another County in the State 1 State of New York | County of [ss: City of J I, A. B., Clerk of the County of , in the State ' In New York, when an acknowledgment is taken in a county other than the one in which an instrument is to be recorded or offered in evidence, it is neces- sary to have a certificate of authentication from the County Clerk or the City Clerk, as the case may be, showing that the officer thus taking it is such officer and that the signature of the officer attached to the certificate of acknowledg- ment is the true signature of the officer thus certifying. The certificate should be in the form in the text. This matter is covered by Real Property Law, § 310, and by Code Civ. Pro., § 937. ACKNOWLEDGMENTS 147 Acknowledgment Taken Without the State to be Used Within the State of New York and also Clerk of the Supreme Court, the same being a court of record in the aforesaid county, having by law a seal, do hereby certify that {insert name of officer taking acknowledgment), by whom the foregoing acknowledgment or proof was taken and whose name is subscribed thereto, was at the time of taking the same an {insert official title of person taking acknowledgment), duly conamissioned and sworn and authorized by law of the State to take the acknowledgment or proof of deeds to be recorded therein and that I am well ac- quainted with his handwriting and verily beUeve that the signature to the foregoing certificate is genuine {or that I have compared the signature to the original certificate with that de- posited in my office as such clerk and I verily believe the signature to the original certificate is genuine). In witness whereof, I have hereunto set my hand and affixed my official seal this day of , 19 . [Official seal of Clerk or Court to be impressed here.] Clerk. FORM NO. 98 Certificate of Authentication when an Acknowledgment is taken Without the State to be Used Within the State ^ ■ss: State of City of County of I, , clerk of the {if clerk of a Cdunty, City, or Parish, insert its name) in the State of and Clerk of the {insert name of Court), the same being a Court of Record in or of the aforesaid Countyy City, or Parish, having ' Whenever an acknowledgment is taken without the State for the purpose of using the same within the State it is necessary to have a certificate of authentica- tion from a public officer, other than the one taking the acknowledgment, showing the power of the officer who actually took the acknowledgment to take such acknowledgment according to the laws of the place where the acknowledgment 148 beadbury's lawyers' manual - Acknowledgment Taken Without the State to be Used Within the State by law a seal, do hereby certify that {insert name of person taking acknowledgment) by whom the foregoing acknowledgment or proof was taken, and whose name is sub- scribed thereto, was at the time of taking the same a {insert official title of -person taking acknowledgment) duly com- missioned and sworn and authorized by the laws of said State to take the acknowledgment or proof of deeds to be recorded therein, and that I am well acquainted with his handwriting, and verily believe that the signatm-e to the foregoing certif- icate is genuine. In witness whereoe, I have hereunto set my hand and affixed my official seal this day of , 19 . [Offixyial seal of Clerk or Court to be impressed here.] Clerk. is actually taken. Real Property Law, § 311. This is a check on the acts of the lower public officials so as to give better assurance to our courts that a document thus presented is authentic. In a very few instances the acknowledgment may be offered without this certificate of authentication. The officers who are authorized to take acknowledgments out of the State are specified in detail in the Real Prop- erty Law, §§ 299, 300 and 301. If the original certificate is required to be under seal the officer making the certificate of a\ithentication must also certify that he has compared the impression of the seal affixed thereto with the impression of the seal of the officer who took the acknowledgment or proof and that ho verily believes the impression of the seal upon the original certificate is genuine, Real Property Law, § 312. CHAPTER VIII AFFIDAVITS FORMS NO. PAGE 99. Affidavit of merits 149 100. Certificate of authentication when affidavit is taken PAGE without the State of New York to be used within the State 151 FORM NO. 99 Affidavits of Merit ^ New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. State of New York CotFNTY OF New York ^ss: City of New York C. D., being duly sworn, says that he, is the defendant in the above-entitled action; that he has fully and fairly stated the 1 The title of an affidavit, that is, the names of the parties, and the court of the case in which it is used in a court proceeding, is important, but should there be ^ The foregoing affidavit of merits was formerly held sufficient where it was necessary for a party to make an application for an extension of time, an adjourn- ment or to open a default; but since the amendment of Rule 23 of the General Rules of Practice in 1910 such an affidavit alone is not sufficient. This rule now requires that "all motions for relief, to which a party is not entitled as matter of right shall be made upon papers showing merits, and the good faith of the prose- cution or defense, which may be shown by any proof that shall satisfy the court." While the form in the text therefore may be added to any affidavit showing merits, it is not sufficient in itself. There must also be an affidavit by the attorney. Rule 24, Gen. Rules of Prac. See the chapter on Affidavit of Merits. 149 150 Bradbury's lawyers' manual Affidavits of Merit case to E. F., his counsel herein, who resides at Street, in the Borough of Manhattan, City, County and State of New York, and that he has a good 'and substantial defense any error therein, it is not fatal and may be corrected nunc pro tunc. Code Civ. Pro., § 728. Lamkin v. Oppenheim, 86 Hun, 27; 33 Supp. 367; Taylor v. Troncoso, 76 N. Y. 599; Fawcett v. Vary, 59 N. Y. 597; Bell v. Moran, 25 App. Div. 461; 50 Supp. 982; People ex rel. Watkins v. Board of Canvassers, 25 Misc. 444; 55 Supp. 712. The venue usually expressed in the words "State of New York, County of New York, ss:" at the beginning of the affidavit is important and should indicate in all cases the place where the affidavit was taken. The importance of this is that it must show that the affidavit was taken within the territorial jurisdiction of the officer who administers the oath. The necessity of this follows from the fact that officers who are empowered by statute to administer oaths are so authorized within a limited territory only. Thus notaries public in New York State are permitted to act in the counties only for which they are appointed, or in a few adjoining counties where their certificates of appointment have been duly filed. In some States notaries public are authorized by statute to act anywhere within such States. But this is not the general rule. In cases of commissioners of deeds and other local officers they are authorized to act only within specific limited jurisdic- tions in New York. While, therefore, a venue is important, it is held that it may be amended nunc pro tunc and that it is not a jurisdictional defect provided the officer actually did act within the territorial limits prescribed by the statute. Baumeister v. Demuth, 84 App. Div. 394; 82 Supp. 831. The omission of the letters "SS," from the venue of the affidavit does not necessarily make it defective. Dehn v. Sherman, 136 App. Div. 89; 120 Supp. 639. While the practice forbids an attorney of record in an action to take an affidavit to be used therein, such affidavit so taken is not entirely void. Baumeister v. Demuth, 84 App. Div. 394; 82 Supp. 831. The jurat, usually expressed in the words "Sworn to before me this day of ,19 , " or " subscribed and sworn to (or affirmed) before me this day of , 19 ,'' are also necessary and important, for if the affidavit is in regular form and contains a proper jurat, with the signature of the officer, it will be held to be valid even though the person making the affidavit has not signed it. However, it is undoubtedly the better practice to have affiants sign affidavits in all cases. It has been held that where the affidavit was in proper form the omission of the affiant to sign it could be supplied by amendment. People v. Sutherland, 81 N. Y. 1. The statements in an affidavit should always be direct in form and not by way of recital. Affidavits have not infrequently been disregarded because statements of fact were made by way of recital rather than in a direct foim. One example of this is an oath in relation to the age of a party to which an affidavit of service begins. Thus the statement "John Smith being over the age of twenty-one years and being duly sworn, deposes and says, " etc., is bad. The statement should be "John Smith being duly sworn, deposes and says that he is over the age of twenty- AFFIDAVITS 151 Affidavit Taken Without the State of New York to be Used Within the State on the merits to the action, as he is advised by his counsel, after such statement, and verily beUeves to be true. Sworn to before me this 1 CD. day of , 19 . 1 {Signature and title of officer.) FORM NO. 100 Certificate of Authentication when Affidavit ^ is taken Without the State of New York to be Used Within the State State of City of ss: County of I, , Clerk of the in the State of and Clerk of the Court, the same being a Court of one years," etc. All allegations in the affidavit should be in direct form and not by way of recital. Whenever an affidavit is made on information and belief the sources of the information and the ground of the belief should be stated specifically. Otherwise such an affidavit has no probative force whatever. If the information comes by word of mouth from another the substance of the statements made by the person from whom the information is derived must be given. Thus where an allegation is made on information and belief this should not be followed by such a statement as the following: "The sources of deponent's knowledge and the ground of his belief are statements made by A. B. to deponent." But there should be added a further statement substantially as follows: "In a conversation with A. B. about the day of , 19 , at said A. B. told deponent (adding whatever the information which was thus conveyed). If the information was by way of letter or telegram copies of the letter or telegram or such portions thereof as are perti- nent should be annexed to the affidavit. If the information was given over the telephone there should be to the statement given above for information which is conveyed by word of mouth the further allegation that the deponent is well ac- quainted with the person with whom he talked over the telephone and he recog- nized his voice as being that of A. B., the person from whom he derived the in- formation. Numerous forms of affidavits for use in specific proceedings will be found throughout this work. The present Chapter deals only with the general features of all affidavits. ' Affidavits taken anywhere within the State of New York may be used in any other portion of the State without further authentication than the signature and seal of the officer taking the same. In this respect they differ from acknowledg- ments which must be authenticated, if offered in evidence without the ooimty 152 Bradbury's lawyers' manual Affidavit Taken Without the State of New York to be Used Within the State Record in or of the aforesaid County, City, or Parish, having by law a seal, do hereby certify that by whom the foregoing affidavit was taken, and whose name is subscribed thereto, was at the time of taking the same a duly conunissioned and sworn and authorized by the laws of said State to take the acknowledgment or proof of deeds to be re- corded therein, and that I am well acquainted with his hand- writing, and verily believe that the signature to the foregoing certificate is genuine. In witness whereof, I have hereunto set my hand and affixed my official seal this day of , 19 . [Official seal of Clerk or Court to be impressed here.] Clerk. where taken; but if affidavits are taken without the State then they must be au- thenticated in practically the same way that an acknowledgment is au- thenticated. Caution should be given also as to the form of the certificate of authentication for affidavits when taken without the State to be used within the State of New York. They may not be taken by officers who are authorized merely to take oaths in the foreign State, but only by officers who are authorized to take the proof and acknowledgment of deeds to be recorded in such State. Code Civ. Pro., § 844. The certificate of authentication, therefore, should be in the form given in the text. The officers without the State who are authorized to take acknowledgments are specified in Real Property Law, §§ 299, 300 and 301. CHAPTER IX SUMMONS AND THE SERVICE THEREOF FORMS NO. PAGE NO. 101. Summons with notice in Supreme Court or County Court 154 114. 102. Summons in the City Court of the City of New York . . 156 115. 103. Summons in Municipal Court of the City of New York . . 157 104. Summons in Municipal Court 116. of the City of New York; reverse side containing af- fidavits of service and 117. blanks for entries by the court 158 105. Indorsement on summons in action for penalty or for- feiture 160 118. 108. Indorsement on summons in matrimonial actions 160 107. Afiidavit of service on an adult natural person within 119. the State 161 108. Certificate of sheriff of service of summons 162 109. Affidavit of service of sum- mons on domestic corpora- tion 162 110. Affidavit of service of sum- 120. mons on municipal cor- poration 163 111. Affidavit of service on foreign corporation 164 112. Affidavit of service on unin- 121. corporated association com- posed of more than seven members 170 113. Certificate of service of sum- mons by sheriff in action by 153 PAGE a private person for a pen- alty or a forfeiture 171 Affidavit of service of sum- mons in matrimonial action 172 Affidavit of service on infant over the age of fourteen years of age 173 Affidavit of service on infant under the age of fourteen years 174 Affidavit on motion for order designating person to re- ceive summons on behalf of infant under fourteen years 175 Court order designating per- son upon whom summons must be served on behalf of infant under fourteen years 176 Order where court of its own motion designates a person upon whom a summons must be served in behalf of an infant over fourteen years or in behalf of any other incompetent person . 177 Affidavit of service of sum- mons on person judicially declared to be incompe- tent, for whom a commit- tee has been appointed. . . 178 Order on the couH's own mo- tion designating a person to receive summons on be- half of an infant defendant over fourteen years of age, or for an incompetent 154 Bradbury's lawyers' manual Summons with Notice, in Supreme or County Court NO. PAGE where the parent or guard- ian of the infant, or the committee of an incompe- tent have adverse inter- ests 179 122. Affidavit on motion to dis- pense with delivery of summons on lunatic 180 123. Court order dispensing with service of summons per- sonally on lunatic. 181 124. Affidavit to procure substi- tuted service of summons on resident of the State. . . 182 125. Order for substituted service on resident natural person, on domestic corporation, or joint stock or other unin- corporated association, resi- dent of State 184 NO. PAGE 126. Affidavit on motion on order for service of summons by publication or personally without the State 186 127. Order for service of summons by publication or person- ally without the State. . . . 192 128. Notice subjoined to the sum- mons when served by pub- lication or personally with- out the State 194 129. Affidavit of publication of summons and notice 194 130. Affidavit of maiUng of sum- mons and complaint and notice, pursuant to order for publication 195 130a. Affidavit of service of sum- mons personally on defend- ant without the state 196 FORM NO. 101 Summons with Notice, in Supreme or County Court New York, Supreme Court, New York County.^ * Abraham Brown, Plaintiff, against Charles Dowd, Defendant. Summons. To the Above-named Defendant: You are hereby summoned to answer to the complaint in this action, and to serve a copy of your answer on the plaintiff's ' If the action is brought in the Supreme Court and the summons is served without a copy of the complaint the summons should state the name of the county in which the plaintiff desires trial. A practice has grown up of endorsing on a summons to the right of the title the following words: "Trial desired in the County of {New York)." Of course, if there is placed at the top of the summons the words "New York Supreme Court, New York County" this is a complete compliance with the requirement of the statute without putting any additional endorsement on the right hand side that the trial is "desired " in New York County. See Code Civ. Pro., § 417. SUMMONS AND THE SERVICE THEREOF 155 Summons with Notice, in Supreme or County Court attorney within twenty days after the service of this Summons, exclusive of the day of service; and in case of your failure to appear, or answer. Judgment will be taken against you by de- fault, for the relief demanded in the complaint. Dated ,19 . E. A. Franklin,' Plaintiff's Attorney. Office and Post Office Address: No. New York City. Please take notice, that upon your failure to appear or answer judgment will be taken against you for the sum of dollars, with interest from the day of , 19 , with costs.^ Eli Franklin, Plaintiff's Attorney. ' The summons in all courts of record is issued by the attorney for the plain- tiff, except that in the Municipal Court of the City of New York, which has re- cently been made a court of record, the summons may be issued either by the attorney for the plaintiff or by the Clerk of the Court. The summons must con- tain the signature and post office address of the plaintiff's attorney, but a type- written or printed signature is sufficient. ^ If the summons is served without the complaint and the damages are liqui- dated, that is, so they can be ascertained by computation only, judgment may be entered without an application to the court if this notice is endorsed on the bottom of the summons. This notice has no significance whatever when the complaint is served with the summons. 156 Bradbury's lawyers' manual Summons in the City Court of the City of New York FORM NO. 102 Summons in the City Court of the City of New York ^ City Court of the City of New York. Abraham Brown, Plaintiff, against Charles Dowd, Defendant. Summons. To the Above-named Defendant: You ARE HEREBY SUMMONED to answcr to the complaint in this action, and to serve a copy of your answer on the plain- tiff attorney within six days after the service of this sunomons, exclusive of the day of service; and in case of your failure to appear, or answer, judgment will be taken against you by de- fault, for the relief demanded in the complaint. Dated , 19 . Eli Frajstklin,^ Plaintiff's Attorney, Office and Post Office Address: No. _______ New York City. ' A notice may be attached to the summons in the City Court with the same effect as in the Supreme Court. See Form No. 101 and notes thereto. ^ See Note No. 2 to preceding form. SUMMONS AND THE SERVICE THEREOF 157 Summons in Municipal Court of the City of New Yorlc FORM NO. 103 Summons in Municipal Court of the City of New York ^ Municipal Court of the City of New York: Borough of District Amos Brown, Plaintiff, against Caleb Deering, Defendant. Summons. To the Above-named Defendant : You are hereby summoned to appear in this action in the Municipal Court of the city of New York, borough of district, before the Clerk of the said Court at his office at in the borough of in the city of New York, within five days after the service of this summons upon you, exclusive of the day of service, and to make answer to the complaint ; and if you fail to make answer, judgment will be taken against you for the sum of dollars, with interest thereon from the day of , 19 , together with the costs of this action. Dated, New York City, the day of , 19 . Charles Darwin,^ or Attorney for the Plaintiff. Clerk. {Office and Post Office Address), Plaintiff's Address. • This summons may be issued by the plaintiff's attorney or by the Clerk of the Court. See also next form succeeding. 2 See note No. 3 to Form No. 101. 158 Summons in Municipal Court of the City of New York FORM NO. 104 Summons in Municipal Court of the City of New York; Reverse side Containing Affidavits of Service and Blanks for Entries by the Court ^ The nature and substance of the cause of action herein is : The nature and substance of the defendant's answer herein is: Affidavit of Service on Individual (s) City and State op New York, County of : ss: being duly sworn, deposes and says, that on the day of , 19 , at No. in the borough of , city of New York, he served the within Summons and Complaint on , the defendant therein named, by dehvering to and leaving a true copy of each thereof with said defendant personally; deponent knew the said person so served as aforesaid to be the same person mentioned and described in said summons and complaint as the defendant therein; deponent is over the age of 18 years and not a party to the action. Sworn to before me, this 1 day of , 19 . J Commissioner of Deeds, City of New York, Notary Public, County of Affidavit of Service on a Corporation City and State of New York, County of : ss: being duly sworn, deposes and says, that on the day of ; 19 , at No. in the borough of , city of New York, ' See preceding form for face of summons. SUMMONS AND THE SERVICE THEREOF 159 Summons in Municipal Court of the City of New York he served the within Summons and Complaint on a corporation, the defendant therein named, by delivering to and leaving a true copy of each thereof per- sonally with , an officer of said corporation, to wit, its ; deponent knew said corporation so served as aforesaid to be the same corporation mentioned and de- scribed in said Summons and Complaint as the defendant therein, and knew said to be such officer thereof; deponent is over the age of 18 years and not a party to the action. Sworn to before me, this | day of , 19 . J Commissioner of Deeds, City of New York, Notary Public, County of INDEX No , 19 VOL. FOL. Municipal Court op the City of New York Borough of District Plaintiff, against Defendant. Summons. Attorney for Plaintiff. No. Borough of , City of New York, Defendant's Address Defendant's Attorney No. Borough of , City of New York. Adjourned to 160. Bradbury's lawyers' manual Endorsement on Summons in Matrimonial Actions PLAINTIFF DEFENDANT CONSENT Judgment f Plaintiff for the I Defendant on inquest after trial. Damages, Costs, Fees, . Extra Costs, Dated this Amount day of ,19 Justice. FORM NO. 105 Endorsement on Summons in Action for Penalty or Forfeiture ' (Code Civ. Pro., §§ 1897, 1962, 1963, 1964) According to the provisions of, etc. (adding such a descrip- tion of the statute as will identify it with convenient certainty and also specifying the section if penalties or forfeitures are given in different sections thereof, for different acts or omissions). FORM NO. 106 Endorsement on Summons in Matrimonial Actions ^ (Code Civ. Pro,, § 1774) At the right of the title in the respective actions the iollo wing: ACTION FOR A DIVORCE ACTION FOR A SEPARATION ACTION TO ANNUL A MARRIAGE • This endorsement need be made only when the summons is served without a complaint. Code Civ. Pro., § 1897. ' In matrimonial actions if the summons is served without the complaint there SUMMONS AND THE SERVICE THEREOF 161 Affidavit of Service on an Adult Natural Person Within the State FORM NO. 107 Affidavit of Service on an Adult Natural Person Within the State ^ {Title Same as Complaint) ss: State of New York County of New York City of New York A. B., being duly sworn, deposes and says that he is over the age of twenty-one years {or if he is over the age of eighteen and under the age of twenty-one, state his age) ; that on the day of , 19 , at No. , Street, in the City, County and State of New York, he served the annexed summons {and complaint) {and notice endorsed thereon), on the defendant, C. D., by dehvering to and leaving with said CD., at said time and place a true copy {trv^ copies) thereof. Deponent further says that he knew the person so served to be the said C. D., the person described in said summons as the jiefendant in said action. Sworn to before me, this 1 A. B. day of , 19 . J {Signature and title of officer.) must be an endorsement on the summons itself, which is invariably placed at the right of the title, in the following words: "Action for a Divorce" or "Action for a Separation" or "Action to Annul^Marriage." These endorsements, however, are not necessary if the oomplayjBk)Served with the summons, although the practice is universal of putting thSlRorsement on the summons in matrimonial actions even though they are served with the complaint. Code Civ. Pro., § 1774. ' A summons may be served by any person other than a party to the action. Code Civ. Pro., § 425. If made on a natural person a copy of the summons must be delivered to and left with him within the State. Code Civ. Pro., § 426. 1(J2 Bradbury's lawyers' manual Affidavit of Service of Summons on Domestic Corporation FORM NO. 108 Certificate of Sheriff of Service of Summons ^ {Title Same as Complaint) I, R. S., Sheriff of the County of , hereby cer- tify that on the day of , 19 , at Street, in the City of , in the County of , in the State of New York, I served the annexed summons on the defendant, C. D., by dehvering to and leaving with said C. D., at said time and place, a true copy thereof. I further certify that I knew the person so served to be the said C. D., one of the defendants mentioned and described in said summons. Dated the day of , 19 . R. S., Sheriff of the County of FORM NO. 109 Affidavit of Service of Summons on Domestic Corporation (Code Civ. Pro., § 431) (Title Same as Complaint) State,, City and County of J ^fw York: ss: A. B., being duly sworn, depSBrand says that he is over the age of twenty-one years {if between eighteen and twenty- one, state age), and that on the day of 19 , at Street, in the Borough of Manhattan, City, ' The Sheriff can serve the summons, :is Sheriff, only within the hmits of the county for which he is elected Sheriff. This merely means that if a Sheriff of a particular county serves a summons in another county the proof of service must be made by affidavit without regard to the fact that he is Sheriff. But if it is served in the Sheriff's own county then the certificate of sei-vice is sufficient. Code Civ. Pro., § 434; Rule 18, Gen. Rules of Prac. SUMMONS AND THE SERVICE THEREOF' 163 Affidavit of Service of Summons on Municipal Corporation County and State of New York, he served the annexed sum- mons on the C. D. Company, the defendant corporation named in said summons, by dehvering to and leaving with E. F., an officer, to wit, the President {or Secretary, or clerk of cashier, or a director of a managing agent of said corporation) a true copy thereof. Deponent further says that he knew the said E. F. so served to be such officer of said C. D. Company, the corporation described as the defendant in the summons in this action. Sworn to before me, this day of , 19 . (Signature and title of officer.) A. B. FORM NO. 110 Affidavit of Service of Summons on Municipal Corporation (Code Civ. Pro., § 431) New York Supreme Court, New York County. A. B., Plaintiff, against The City of New York, Defendant. 1, State of New York County of New York 1- ss: City of New York j CD., being duly sworn says he is over the age of twenty- one (if between eighteen and twenty-one state age); that on the day of , 19 , at No. , Street, in the City, County and State of New York, he served the annexed summons (and complaint) on the defendant the City of New York by delivering to and leaving with John Purroy Mitchell, the Mayor (or other officer specified in Code Civ. Pro., § 431) of said City, a true copy (true copies) thereof. 164 beadbury's lawyers' manual Affidavit of Service on Foreign Corporation Deponent further says that he knew the person so served to be the said John Purroy Mitchell, the Mayor of said de- fendant municipal corporation, the City of New York, the corporation described in said summons as the defendant in this action. Sworn to before me this 1 C. D. day of , 19 . J {Signature and title of officer.) FORM NO. Ill Affidavit of Service on Foreign Corporation ' (Code Civ. Pro., §432; Gen. Corp. L., § 16; Rule 18, Gen. Rules Prac.) {Title Same as Summons) State, City and County of New York: ss: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years {if between eighteen and twenty-one, state age) and that on the day of , 19 , at No. Street, in the City, County and State of New York, he served ^ If the defendant is a foreign corporation the summons may be delivered to the President, the Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, or if the corporation lacks either of these officers to the officer performing the corresponding functions under another name; or to a person desig- nated for the purpose as provided in § 16 of the General Corporation Law; or if none of the persons specified can be found with due diligence and the corpora- tion has property within the State or the cause of action arose therein, to the cashier, a director or a managing agent of the corporation within the State. Code Civ. Pro., § 432. Under certain circumstances, also an action may be brought against a foreign corporation by the service of the summons on the Secretary of State. Code Civ. Pro., § 432, subd. 4. Section 16 of the General Corporation Law provides that before granting au- thority to a foreign corporation to do business in the State, such corporation shall file in the office of the Secretary of State a written designation of a person upon whom process against the corporation may be served within the State, and that such person must have an office or place of business at the place where such cor- poration is to have its principal place of business within the State, together with the street number or other suitable designation of the particular locahty where the person can be found. If, therefore, it is desired to serve the summons on the person thus designated the proper method is to write to the Secretary of State and ask if such a designation has been made and if it is still in force, in which SUMMONS AND THE SERVICE THEREOF 165 Affidavit of Service on Foreign Corporation the annexed summons (and complaint) on the CD. Company, the corporation described as the defendant in said summons, by delivering to and leaving with E. F.,* an officer, to wit, the President (Vice-President, Treasurer, Assistant Treasurer, event the summons may be served on such person. Section 432 of the Code of Civil Procedure provides, however, that if such a designation as is specified in § 16 of the General Corporation Ijaw is not in force or if neither the person desig- nated nor an officer specified in subdivision 1 of § 432 can be found, with due dili- gence, and the corporation has property within the State, or the cause of action arose therein, the summons may be sei-ved on the cashier, a director, or a manag- ing agent of the corporation within the State. By subdivision 4 of the same sec- tion it is further provided that if the person designated, as provided in § 16 of the General Corporation Law, dies or removes from the place where the corporation has its principal place of business within the State and the corporation does not, within thirty days after such death or removal, designate in like manner another person upon whom process against it may be served within the State, process against the corporation in an action upon any liability incurred within this State, or if the corporation has property within its State, the summons may, after such death, removal or revocation, and before another designation is made, be served upon the Secretary of State. Subdivision 4 of § 432 of the Code seems to be entirely separate from the other subdivisions and it does not appear from the statute that it is necessary to show that the foreign corporation has not a president, vice-president, treasurer, assist- ant treasurer, secretary or assistant secretary before a summons could be served on the Secretary of State in the contingency specified in subdivision 4. Under subdivision 3, it is provided that if such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision 1 of § 432 of the Code can be found, with due diligence, and the corporation has property within the State or the cause of action arose therein, that the summons may be served on the cashier, a director, or a managing agent of the corporation within the State. This alternative seems to be somewhat different from the one contained in subdivision 4, for in one case if a designation is not in force the summons may be served on the Secretary of State and in the other case if the designation is not in force and none of the officers mentioned in subd. 1 can be found then it may be served on one of the officers just mentioned. The two subdivisions seem to be independent. The question frequently has been discussed as to who is a managing agent, either of a domestic or a foreign corporation. The question arose as to a domestic -corporation in the case of Kramer v. Buffalo Union Furnace Co., 132 App. Div. 415; 116 Supp. 1101, where it was held that an assistant superintendent of a cor- poration, who had no general supervision over its affairs and no authority to manage its affairs as agent, but whose duties were really the duties of a foreman, was not a managing agent. This case reviewed a number of the more recent de- cisions on the point. An appeal from the order entered in this case was dismissed by the Court of Appeals, in 196 N. Y. 532. A somewhat similar question was raised in the case of Polacsek v. American Iron and Sleel Mfg. Co., 164 App. Div. 166 Bradbury's lawyers' manual Affidavit of Service on Foreign Corporation Secretary or Assistant Secretary) of said corporation a true copy (true copies) thereof. Deponent further says that he knew the said E. F., to be said officer of said C. D. Company, the defendant (one of the 925; 149 Supp. 372, although the facts are not discussed in thp report of the case. An appeal from the order entered in this case was also dismissed by the Court of Appeals, 215 N. Y. 619. In dismissing the appeal in the Polacsek ease the court in writing merely a memorandum, stated that the dismissal was on the authority of Kramer v. Buffalo Union Furnace Co., 196 N. Y. 532, to which reference is made above. In the Kramer case the court pointed out the distinction between a superin- tendent who merely had charge of the operations of the work, without am' general authority as agent, to represent his principal, and the authority of a general su- perintendent of a railroad who has absolute authority within his own territory, as was the case of Rochester, H. & L. R. Co. v. New York, L. E. and W. R. Co., 48 Hun, 190. Where the president of a foreign corporation resides within the State of New York and maintains an office therein, from which he manages and controls the affairs of the corporation, service of a summons upon the corporation, by the de- livery of a copy thereof to its president, within this State, is valid so far as giving our courts jurisdiction to hear and determine the rights to the action in so far as the corporation has property within the State. Grant v. Cananea Consolidated Copper Co., 189 N. Y. 241; rev'g 117 App. Div. 576; 102 Supp. 642. The last mentioned case settled a controversy as to which there had been a great deal of doubt and considerable conflict between the State and the Federal courts. The Court points out the difference between an action brought by a resident of the State against a foreign corporation and an action brought by a foreign corporation or a nonresident against a foreign corporation, under Code Civ. Pro., § 1780. The court also discusses the conflict between the decisions of the Federal and State courts. The Court further states that the provisions of subdivision 3 ap- ply only when there is no person designated upon whom service can be made and no officer specified in subdivision 1 can be found within the State. It seems nowhere to have been held, however, that in order to serve a sum- mons on the Secretary of State, in order to hold a foreign corporation, that it must appear that it is impossible to find any of the officers specified in subdivi- sion 1 of § 432. Therefore, under subdivision 4, it seems to be the law that if a person designated under § 16 of the General Corporation Law dies or moves from the place where the corporation has its principal place of business within the State, and the corporation does not, within thirty days after such death or re- moval, designate another person, that then the summons may be served on the Secretary of State, no matter whether or not the corporation has within the State, the officers mentioned within subdivision 1 of § 432. There are a number of questions of jurisdiction which are sometimes trouble- some, particularly in reference to service of a summons on a foreign coi-poration by publication or without the State. These questions are discussed in a note to Form No. 126, post, page 186. SUMMONS AND THE SERVICE THEREOF 167 Affidavit of Service on Foreign Corporation defendants) described in said summons as a defendant in this action. (// the corporation lacks either of the officers specified above the summons may be served on an officer performing the correspond- ing functions under another name.) [When served on person designated under Gen. Corp. L., § 16, proceed as above to (*) and then as follows] : the person duly designated by the said defendant CD. Company, by an in- strument duly filed in the office of the Secretary of State, as a person upon whom process might be served in an action against said corporation, a true copy (true copies) thereof. Deponent further says that he knew the person so served to be the said E. F., the person thus designated by the said C. D. Company, the corporation described in the summons as the (one of the defendants) defendant in this action. [If service is made under Code Civ. Pro., § 4^2, Subd. 3, on a cashier, director or managing agent, proceed as above to (*) and then as follows] : the cashier {or a director, or a managing agent) of said corporation by delivering to and leaving with said E. F. a true copy (trus copies) thereof. Deponent further says that he knew the person so served to be the said E. F., the cashier (or a director, or a managing agent) of the said C. D. Company, the corporation described in said summons as the (one of the defendants) defendant in this action. Deponent further says that said defendant CD. Company has property within the State of New York, to wit: (concisely describe it) (or, that the cause of action herein arose in the State of New York) . Deponent further says that no designation of a person upon whom process may be served in an action against the said CD. Company pursuant to Section 16 of the General Corporation Law is in force (or, that by an instrument duly made by the de- fendant C. D. Company and filed in the office of the Secretary of State, E. F. was duly designated as a person upon whom process might be served in an action against the said C. D. Company; that the office address of said E. F., given in said designation, where he could be found for such service was No. , , Street in the City, County and State of New York; that deponent 168 Bradbury's lawyers' manual Affidavit of Service on Foreign Corporation called at said address during business hours, on four separate occasions on the , and , days of 19 , and on the day of , 19 , and inquired of the person in charge of the office of the defendant C. D. Company where said E. F. could be found and deponent was told on each such occasion by said person thus in charge that said E. F. was not in, that he did not know when E. F. would be in, that said E. F. did not come to the defendant's office regularly and he did not know where said E. F. could be found. Deponent has consulted the various telephone and city directories of the City of New York and he has been unable to find the name or address of said E. F., and said E. F. cannot, after due diligence, be found. Deponent further says that no president, vice president, treasurer, assistant treasurer, secretary, assistant sercetary, or an officer per- forming corresponding functions under another name, of said C. D. Company can be found within the State of New York with due dili- gence. Deponent called at the oj^ce of the said C. D. Company at No. , Street, in the City, County and State of New York on the day of , 19 , and inquired of the person in charge of said offi,ce if the said C. D. Company had a president, vice president, treasurer, assistant treasurer, secre- tary, assistant secretary, or an officer performing corresponding functions in the State of New York, and said person in charge re- plied that he did not know of any such officer in New York State, nor did he know of any one who would probably have better infor- mation than he had; and said person in charge further said that he believhd he probably would have such information if there was any such officer in New York State. Deponent thereupon consulted the corporation directory of the City of New York and could not find the name of any su^h officer as herein before mentioned of the defendant C. D. Company) [If the service is made on the Secretary of State, under Code Civ. Pro., § 432, subd. 4, proceed to (*) as above, and then as follows]: the Secretary of State of New York, a true copy (true copies) thereof. Deponent further says that by an instrument duly made by the said defendant CD. Company and duly filed in the office of the Secretary of State, G. H. was SUMMONS AND THE SERVICE THEREOF 169 Affidavit of Service on Foreign Corporation appointed as a person to receive service of process in an action against said C. D. Company, and the office and place of business of said G. H., as stated in said designation, where process could be served was No. , Street, in the City, County and State of New York. That on the day of , 19 , deponent called at the office of the C. D. Company, which is at the address mentioned in said designation and specified above, and inquired of the person in charge of said office for said G. H., and the person in charge of said office told deponent that the said G. H. had removed from said office and was no longer connected with said C. D. Company (or that said G. H. had died on or about the day of , 19 ). More than thirty days have elapsed since the said removal as aforesaid (death) of said G. H. and deponent is advised by the Secretary of State and verily beheves that said C. D. Company has not designated another person upon whom process against the said corporation may be served within the State, pursuant to section 16 of the General Corporation Law, and a copy of the letter of the Secretary of State so advising is hereunto annexed and made a part of this affidavit. Sworn to before me, this day of , 19 . (Signature and title of officer.) A. B. 170 Bradbury's lawyers' manual Service on Unincorporated Association of More than Seven Members FORM NO. 112 Affidavit of Service on Unincorporated Association Composed of More than Seven Members ^ New York Supreme Court, New York County. A. B., Plaintiff, against John Jones, as President of the Adams Express Company, a volun- tary Association Composed of More than Seven Members, Defendant. 8s: State of New York County of New York City of New York E. F., being duly sworn, deposes and says that he is over the age of twenty-one years {if between eighteen and twenty-one state age) and that on the day of ,19 , at No. , Street, in the City, County and State of New York, he served the annexed summons (and complaint) on John Jones, the President of the Adams Express Company, by deliv- ' Under §§ 1919 and 1923 of the Code, where a voluntary association is com- posed of more than seven members the plaintiff may either sue the President or other head of the association, as such, or he may sue all the members, at his election. If he sues the President it is only necessary to serve the President. If he sues all the members it would be necessary to serve them all in order to hold them personally. If the execution against the President on any judgment which may be recovered is returned unsatisfied then the plaintiff may still sue the other members of the Association, but he cannot maintain an action against the Presi- dent as such and against the members at the same time. Code Civ. Pro., § 1922. The members of such an association are really partners and their liabilities are based on the law of partnership. But by reason of the practical difficulties of suing so large a number of persons, as compose one of the large express companies for example, relief was afforded by permitting an action to be brought against the president alone. SUMMONS AND THE SERVICE THEREOF 171 Action by a Private Person for a Penalty or a Forfeiture ering to and leaving with said John Jones a true copy (true copies) thereof. Deponent further says that he knew the person so served to be the said John Jones, the President of the Adams Express Company, the person described in the summons as the de- fendant in this action. Sworn to before me this 1 E. F. day of , 19 . ) {Signature and title of officer.) FORM NO. 113 Certificate of Service of Summons by Sheriff in Action by a Private Person for a Penalty or a Forfeiture (Code Civ. Pro., § 1895) {Title Same as Complaint) I, R. S., Sheriff of the County of , hereby cer- tify that on the day of , 19 , at No. , Street, in the City of , in said county, I served the annexed summons, with the indorsement thereon, on C. D., by deUvering to and leaving with him a true copy thereof at said time and place. I further certify that I knew the person so served to be the said C. D., the person mentioned in said smnmons as the defendant in said action. Dated the day of , 19 . R. S., Sheriff of the County of 172 Bradbury's lawyers' manual Affidavit of Service of Summons in Matrimonial Action FORM NO. 114 Affidavit of Service of Summons in Matrimonial Action ^ (Rule 18 of the General Rules of Practice) (Title Same as in Summons) State, City and County of New York: ss: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years (if between the ages of eighteen and twenty- one, state age) ; that on the day of , 19 , at No. , , Street, in the City, County and State of New Ybrk he served the annexed summons on C. D., the defendant in the above-entitled action by dehvering to and leaving with said C. D., at said time and place a true copy thereof. Deponent further says that there was endorsed on said copy of said summons so served the same as on the original summons annexed hereto, the words: "Action for a Divorce," (or "Action for a Separation, " or "Action to Annul a Marriage.") Deponent further says that he knew the person so served to be the said CD., the defendant described in said summons as the defendant in the action. Deponent is well acquainted with said defendant, C. D., and has known him for upwards of years, and has had business transactions with him. (Or otherwise state in what manner the person making the affidavit identified the person served as the defendant in the action.) Sworn to before me this ] A. B. day of , 19 . J (Signature and title of officer.) ' In matrimonial actions there must not only be an affidavit or a certificate of service, but the court may also require the person who served the summons to appear in court and testify thereto, except that if the sei'vice is made by a sheriff and he files an affidavit of service showing how he knew that the pereon served was the defendant in the action and this is sufficient to satisfy the court as to the service, it is not necessary for the sheriff to appear and testify. Rule 18, Gen. Rules of Prac. SUMMONS AND THE SERVICE THEREOF 173 Affidavit of Service on Infant Over the Age of Fourteen Years FORM NO. 115 Affidavit of Service on Infant Over the Age of Fourteen Years ^ {Title Same as Complaint) State, City and County of New York: ss: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years {if over the age of eighteen years and under the age of twenty-one years, state age), and that on the day of , 19 , at No. , Street, in the City, County and State of New York he served the annexed summons (and complaint) (with notice) on the de- fendant C. D., an infant over the age of fourteen years, by de- livering to and leaving with said defendant at said time and place a true copy (true copies) thereof, and also by delivering to and leaving with F. D., the father (mother or guardian) of said infant, a true copy (true copies) thereof, on the day of , 19 , at No. , Street, in the City, County and State of New York. Deponent further says that he knew the said C. D., so served, to be the person described in said smnmons as the defendant in this action, and he further says that he knew the said F. D., so served, to be the father (mother or guardian) of said C. D. (// the infant had neither father, mother nor guardian within the State the summons must be served on the person having the care and control of the infant or with whom he resides, or in whose serv- ice he is employed, in which case the affidavit of service must so state. Also if an order is made designating a person upon whom 1 If the defendant is an infant over the age of fourteen years the summons must be dehvered 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 oqntrol of him or with whom he resides or in whose service he is employed. § 426. The court may also where the infant is.ever the age of fourteen years make an order re- quiring a copy of the summons to be delivered in behalf of the infant to a person designated in the order and that service of the summons shall not be deemed complete until it is so delivered. Code Civ. Pro., § 426. 174 BRADBURY S LAWYERS MANUAL Affidavit of Service on Infant Under the Age of Fourteen Years the service of the summons must be made in addition to the above, insert the following allegation: Deponent fiirther says that on the day of , 19 , in Street in the City, County and State of New York he served the annexed summons on L. M., the person designated to receive the same on behalf of the said infant, C. D., by an order en- tered in the above-entitled action, dated the day of , 19 , and duly filed in the office of the Clerk of the County of , on the day of , 19 , by dehvering to and leaving with said L. M., at said time and place, a true copy (true copies) thereof. Deponent further says that he knew the said L. M. so served to be the said person designated in the said order to receive said smnmons on behalf of the said infant, C. D. Sworn to before me this 1 A. B. day of , 19 . J (Signature and title of officer.) FORM NO. 116 Affidavit of Service on Infant Under the Age of Fourteen Years ^ (Title Same as Complaint) State City, and County of New York; ss: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years (if over the age of eighteen and under the age of twenty-one, state age), and that on the day of , 19 , at No. , Street, in the City, Coimty and State of New York he served ' If the defendant is an infant under the age of fourteen years the summons must be served on the father, mother or guardian of the infant, or if there is none within the State to the person having care and control of him or with whom he resides or in whose service he is employed. Code Civ. Pro., § 426. Where the infant is under the age of fourteen years of age the court myst also make an order requir- ing a copy oTF the summons to be delivered in behalf of the defendant to ar person designated in the order and^httt the service of the summons shall not be deemed complete until it is so delivered. Code Civ, Pro., § 426. SUMMONS AND THE SERVICE THEREOF 175 Person to Receive Summons on Behalf of Infant Under Fourteen Years the annexed sunnnons (and complaint) (with notice) on the above-named defendant, C. D., an infant under the age of fourteen years, by deUvering to and leaving with F. D., the father (mother or guardian) of said infant, C. D., a true copy (true copies) thereof. (// there is neither father, mother nor guardian of the infant in the State the allegation should be that the summons was served on the person having the care or control of the infant or with whom he resides, or in whose service he is employed, in accordance with § 426 of the Code.) Deponent further says that he knew the person so served to be F. D., the father (mother or guardian) of said C. D., the infant defendant described in said summons in said action. {Add also in the same affidavit, or in another affidavit the alle- gation as to the service on a person designated by an order to re- ceive the summons in the same manner as is specified in Form No. 115, in accordance with Code Civ. Pro., § 4^6.) Sworn to before me this 1 A. B. day of , 19 . J (Signature and title of officer.) FORM NO. 117 Affidavit on Motion for Order Designating Person to Receive Sum- mons on Behalf of Infant Under Fourteen Years (Code Civ. Pro., § 426) (Title Same as Complaint) State, City and County op New York: ss: A. B., being duly sworn, deposes and says that he is the at- torney for the plaintiff in the above-entitled action; that CD., one of the defendants in said action, is an infant under the age of fourteen years and no person has been designated under § 426 of the Code of Civil Procedure as a person upon whom said service is to be made on behalf of said infant. Deponent therefore prays that an order may be made desig- 176 Bradbury's lawyers' manual Person upon Whom Summons Must be Served on Behalf of Infant under Fourteen nating a person upon whom said service shall be served in be- half of said infant defendant, C. D. No previous application for such an order has been made. Sworn to before me, this 1 A. B. day of ,19 J (Signature and title of officer.) FORM NO. 118 Court Order Designating Person upon Whom Summons Must be Served on Behalf of Infant Under Fourteen Years (Code Civ. Pro., § 426) At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against CD., and others, Defendants. On reading and filing the affidavit of A. B., sworn to the day of , 19 , by which it appears that CD., one of the defendants in the above-entitled action is an infant under the age of fourteen years and that no order has been made designating a person to receive the summons on behalf of said infant, pursuant to § 426 of the Code of Civil Procedure; Now, on motion of A. B., attorney for the plaintiff, it is hereby Ordered that K. L., of Street, Borough of Man- hattan, City, County and State of New York, be and hereby is designated as a person upon whom the summons in this action must be served in behalf of the defendant, C D., an infant under the age of fourteen years, and- that the service of the SUMMONS AND THE SERVICE THEREOF 177 Order for service of summons on behalf of infant, etc. summons in this action shall not be deemed complete until it is so delivered. Enter, P. A. H., J. S. C. FORM NO. 119 Order Where Court of its own Motion Designates a Person Upon Whom a Summons Must be Served in Behalf of an Infant over Fourteen Years or in Behalf of any Other Incompetent Person '■ (Code Civ. Pro., § 427) At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., and others, Defendants. It appearing to the court that C. D., one of the defendants in the above-entitled action, by reason of habitual drunken- ness {or for any other cause) is mentally incapable adequately to i)rotect his rights, although he has not been judicially de- clared to be incompetent to manage his affairs, it is, by the court, on its own motion, hereby Ordered that a copy of the summons in this action be de- livered to L. M., at Street, in the City, County and '■- In case the defendant is an habitual drunkard or for any other cause is men- tally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the court may in its discretion, with or without an application therefor, and in the defendant's interest 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 delivered. Code Civ. Pro., § 427. 178 bradbuby's lawyers' manual Service of Summons on Person Judicially Declared to be Incompetent State of New York, in behalf of the defendant C. F., in the in- terests of the said defendant, CD., and that service of the summons on said C. D. shall not be deemed complete until it is so delivered to said L. M. Enter, P. A. H., I J. S. C. FORM NO. 120 Affidavit of Service of Summons on Person Judicially Declared to be Incompetent, for Whom a Committee has been Ap- pointed ^ (Code Civ. Pro., § 426) {Title Same as Complaint) State, City and County op New York: ss: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years {or if between the ages of eighteen and twenty-one, state age), and that on the day of , 19 , at Street, in the City, County and State of New York, he served the annexed summons on the defendant, C. D., in the above-entitled action, who has been judicially declared to be incompetent, by delivering to and leaving with said C. D. personally and also by delivering to and leaving with E. F. personally, at such time and place, true copies thereof. Deponent further says that he knew the said C. D., so served, to be one of the persons described in said summons as a defend- ant in said action, and he further says that he knew the "said E. F. so served to be the Committee of the said defendant, CD., the said defendant CD. having been judicially declared to be incompetent. Sworn to before me this ] A. B. day of , 19 . {Signature and title of officer.) 1 If the defendant is a person judicially declared to be incompetent to manage his affairs in consequence of lunacy, idiocy or habitual drunkenness or for whom a Committee had been appointed the summons must be delivered to the Committee appointed and to the defendant in person. Code Civ. Pro., § 426. SUMMONS AND THE SERVICE THEREOF 179 Where the Parent or Guardian of the Infant, etc., have Adverse Interests FORM NO. 121 Order on the Court's own Motion Designating a Person to Receive Summons on Behalf of an Infant Defendant over Fourteen Years of Age, or for an Incompetent where the Parent or Guardian of the Infant, or the Committee of an Incompetent have Adverse Interests ^ (Code Civ. Pro., § 428) At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., and others, Defendants. It appearing to the satisfaction of the court that E. F., the father (mother or guardian) of the infant defendant, C. D., in the above-entitled action, who is designated by § 426 of the Code of Civil Procedure as the person on whom the summons must be served on behalf of said infant, has interests which are adverse to those of the said infant; Now, by virtue of § 428 of the Code of Civil Procedure, it is, by the court on its own motion, hereby Ordered that a copy of the summons on behalf of said infant be served on G. H., of Street, Borough of Manhattan, City, County and State of New York, and that ' If it appears in the case of an infant defendant over the age of fourteen' years or a person judicially declared to be incompetent that the person to whom a copy of the summons has been delivered in addition to service on the infant or incompe- tent has interests adverse to that of the defendant or that for any reason he is not a fit person to protect the rights of tho defendant the court may also make an order that the summons be delivered to a person designated to receive it and that serv- ice shall not be complete until such sorvice is made. Code Civ. Pro., § 428. 180 Bradbury's lawyers' manual Affidavit on Motion to Dispense with Delivery of Summons on Lunatic service of the summons shall not be deemed complete until it is so delivered to said G. H. Enter, P. A. H., J. S. C. FORM NO. 122 Affidavit on Motion to Dispense with Delivery of Summons on Lunatic ^ (Code Civ. Pro., § 429) {Title Same as Complaint) State, City and County of New York: ss: I. J., being duly sworn, deposes and says that is he a regu- larly and duly licensed physician and so licensed to practice in the State of New York and that he is well acquainted with C. D., one of the defendants in the above entitled action who has been judicially declared to be incompetent to manage his affairs in consequence of lunacy and that said C. D. is confined in the Asylum at , and that said C. D. is at times very violent and hard to control and is not of sufficient mental capacity to understand the contents of any paper which might be served upon him. Deponent further says that the delivery of a summons to said C. D. in person would tend to aggravate his disorder and would lessen the probability of his recovery by exciting him and that no good purpose would be served by such service on said CD. personally. Deponent therefore believes that an order should be made dispensing with the service of the summons on said C. D. personally, pursuant to § 428 of the Code of Civil Procedure. 1 If a defendant has been judicially declared to be incompetent to manage his affairs in consequence of lunacy and it appears that the service of a summons on him would tend to aggravate his disorder or to loss(-n the probability of his recov- ery, the court may make an order dispensing with such delivery. Code Civ. Pro., §429. SUMMONS AND THE SERVICE THEREOF 181 Court Order Dispensing with Service of Summons Personally on Lunatic No previous application for such an order has been made. Sworn to before me this | I. J. day of , 19 . (Signature and title of officer.) t FORM NO. 123 Court Order Dispensing with Service of Summons Personally on Lunatic At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. It appearing to the satisfaction of the court by the affidavit of I. J., sworn to before me the day of , 19 , that the defendant, C. D., in the above-entitled action, has been judicially declared to be incompetent to manage his affairs in consequence of lunacy and that said C. D. is con- fined in the Asylum at , and that the delivery of a copy of the summons to said C. D., in person would tend to aggravate his disorder and to lessen the proba- bility of his recovery ; Now, on motion of G. H., attorney for the plaintiff, it is hereby Ordered that the service of the summons in the above- entitled action on said C. D., personally, be and hereby is dis- pensed with and that said summons be served on the Com- mittee of said CD., and it is iS2 Bradbury's lawyer's manual Affidavit to Procure Substituted Service of Summons on Resident of the State Further ordered that L. M., of , in the City, County and State of New York, be and hereby is appointed a person upon whom the summons shall be served on behalf of said CD. and that service of the summons on said CD., shall not be dee»ied to be complete until so served on said L. M. Enter, P. A. H., J. S. C FORM NO. 124 AflSdavit to Procure Substituted Service of Summons on Resident of the State (Code Civ. Pro., §§ 435, 436 and 437) Supreme Court, New York County. A. B., Plaintiff, against C D., Defendant. State City and County of New York: ss: A. B., being duly sworn, says that he is the plaintiff in the above-entitled action; that a summons was issued herein for service on the above-named defendant, C D., on the day of , 19 , and put into the hands of E. F. for service personally on the defendant, CD., who is a natural person and who resides at Street, in the City, County and State of New York {or if the defendant is a domestic corporation, a joint-stock or other unincorporated association, state the facts and where it had its principal place for the trans- action of business) . Deponent further says that diligent effort has been made to serve the summons upon the defendant, as appears more fully by the affidavit of G. H., sworn to the day of ,19 , hereunto annexed and made a part of this SUMMONS AND THE SERVICE THEREOF 183 Affidavit, to Procure Substituted Service of Summons on Resident of the State application, or the certificate of the sheriff of the County of , which is the county where the said defendant resides, or has its principal place or places of business, which said certificate is hereunto annexed and made a part of this affidavit, and that none of the persons mentioned in subdivi- sion 3 of § 431 of the Code of Civil Procedure (nor the president or treasurer of such association can be found) (or that the place of the sojourn of the defendant cannot be ascertained), (or that the defendant is within the State and avoids service), and that per- sonal service cannot be made upon such defendant.^ No previous application for such an order had been made to any court or judge. Deponent therefore prays that an order may be made that the summons may be served on the defendant herein by leaving a copy thereof, together with the order allowing such service, at the residence of the defendant (if a natural person) with a person of proper age, if upon reasonable application admit- tance can be obtained and such person found who will receive it, or if admittance cannot be so obtained, nor such person found, by affixing the same to the outer or other door of the defendant's said place of business or office or place of residence and by depositing another copy, properly enclosed in a postpaid wrapper to the defendant, at his office or place of business or place of residence, in the postoffice at the place where he re- sides or where said office, place of business or residence is located. (// it appears by the affidavit that no place of residence can be found, service may be made in such manner as the court may direct. Code Civ. Pro., § ^36.) Sworn to before me this 1 A. B. day of , 19 . j (Signature and title of officer.) 1 There should be supporting affidavits as to all the averments made concern- ing the attempts to serve the summons and the non-success. This is especially true where the principal affidavit or the application for the order is made by the plaintiff in person for he is not competent to serve the summons. The court must be satisfied that a hcma fide and an intelligent effort has been made to serve the summons before such an order will be granted. 184 Bradbury's lawyers' manual Order for Substituted Service on Resident Natural Person, etc. FORM NO. 125 Order for Substituted Service on Resident Natural Person, on Domestic Corporation, or Joint-Stock or Other Unincorporated Association, Resident of State (Code Civ. Pro., §§ 435, 436) New York Supreme Court, New York County. A. B., Plaintiff, against CD., Defendant. A motion having been regularly made on behalf of the above- named plaintiff for an order for the substituted service of the summons in the above-entitled action on C. D., the defend- ant therein, a resident of the State of New York {or a domestic corporation, or a joint-stock or other unincorporated association residing within the State) and it appearing by the affidavit of A. B., sworn to the day of , 19 , and the affidavit of G. H., sworn to the day of , 19 , (the certificate of the sheriff of the County of New York) that the defendant resides (or has his principal office or place of business at Street, in the City, County and State of New York; that proper and diligent effort has been made to serve the summons upon the defendant and that none of the persons mentioned in subdivision 3 o/ § 431 of the Code of Civil Procedure, nor the president or treasurer of such association can be found) and that the sojourn of the defendant cannot be ascertained (or if he is within the State that he avoids service so that personal service cannot be made). Now, on reading and filing the affidavits and certificate above mentioned, and on motion of I. J., attorney for the plaintiff, it is hereby SUMMONS AND THE SERVICE THEREOF 185 Order for Substituted Service on Resident Natural Person, etc. Ordered that the summons herein be served on the defend- ant by leaving a copy thereof and of this order at the place of residence of the defendant, C. D., No. , , Street, City, County and State of New York, with a person of proper age, if upon reasonable application admittance can be ascer- tained and such person found who will receive it, or if admit- tance cannot be so obtained, or such a person found, by affixing the same to the outer or other door of the defendant's said place of residence and by depositing another copy thereof, properly enclosed in a postpaid wrapper, addressed to the defendant, at his place of residence as above stated, in the postoffice in the Borough of Manhattan, City, County and State of New York, where he resides {if any other mode of service is specified pursuant to § 436, state it) ; (Or if the defendant is a domestic corporation or a joint-stock or other unincorporated association direct that service may be made by) leaving a copy thereof and of this order at the principal place of business or office of the defendant at Street, in the Borough of Manhattan, City, County and State of New York, with a person of proper age, if upon reasonable applica- tion admittance can be obtained and such person found who will receive it, or if admittance cannot be so obtained or such person found, by affixing the same to the outer or other door of said place of business or office and by depositing another copy thereof, properly enclosed in a postpaid wrapper addressed to the defendant at his principal office or place of business as before stated, in the postoffice in the Borough of Manhattan, City, County and State of New York (if another mode of service is directed to be made under Code Civ. Pro., § 4-36, state whatever mode the court directs). Dated , 19 Peter A. Hendrick, Justice of the Supreme Court of the State of New York. 186 Bradbury's lawyers' manual AflSdavit on Motion for Order for Service of Summons by Publication FORM NO. 126 Affidavit on Motion for Order for Service of Summons by Publica- tion or Personally Without the State ' (Code Civ. Pro., §§ 438, 439) {Title Same as Complaint) State, City and County of New York: ss: L. M., being duly sworn, deposes and says that he is the plaintiff in the above-entitled action. I. Deponent further says that the defendant, CD. Com- pany, is a foreign corporation, duly organized and existing under the laws of the State of Maine {or is an unincor- ' A word of caution miist be uttered, more specially to students, concerning the circumstances under which a summons may be served by pubUcation or personally without the State, even though it would seem from the provisions of the New York Code of Civil Procedure that such practice was proper. This is necessary because this practice involves certain fundamental principles of jurisdiction which are not found in any statute and which can only be discovered by long and patient study of the cases, both in the State and Federal courts. The first principle from which the difficulty and conflict arises is the general one that the process of a court, such as a summons, for example, does not run and cannot be served with the exceptions hereinafter noted, beyond the territorial lim- its of the court which issues the process. Thus it is a general rule that a summons from a New York court cannot be served beyond the limits of the State of New York, so as to acquire jurisdiction for the purpose of rendering a personal judgment against the defendant. This same principle is found in the practice of the United States District Court. The process issued from a United States District Court cannot, as a rule, be served on a defendant without the limits of a particular district for the purpose of acquiring jurisdiction over such defendant, so that n personal judgment may be rendered against him. There are a few exceptions to this rule which will be explained a little later. But this general principle should be thoroughly understood in the beginning, when considering any proceeding where, in the exceptional cases, it is held that jurisdiction may be acquired by service of process by publication or personally without the State. It may be laid down as an invariable rule that in an action for negligence on a simple contract, such as a promissory note, for libel or slander, for conversion, or the like, that there is no way in which a summons issued by the Supreme Court of New York can be served on a, defendant living in Jersey City, for example, so as to bring the de- fen(}ant within the jurisdiction of the New York court, so that a personal judg- SUMMONS AND THE SERVICE THEREOF 187 Affidavit on Motion for Order for Service of Sunamons by Publication porated association consisting of seven or more persons having a president and treasurer, neither of whom is a resident of the State of New York} {or is a domestic corporation and diligent effort has been made to serve the summons upon the president or other head, the secretary, clerk, cashier, treasurer, director or managing agent of said corporation) {or that the defendant, CD., is a natural ment can be rendered against him for the amount of the damages which the court might award. The same rule holds true even within the limits of the State, when the action is brought in a court of limited jurisdiction, like the City Court of the City of New York, for example. The territorial limits of such a court are fixed by statute, and process cannot be served outside of this territorial limit except by special authori- zation of law. In some instances the statute itself provides that process may be served in an adjoining county, and if this means merely an adjoining county in the same State, the Legislature, of course, has authority to so provide. But the Legislature of New York has no authority to enact a law, again with the excep- tions herein noted, providing that process of the Supreme Court can be served personally outside of the State so as to bring a defendant before the Supreme Court for the purpose of entering a personal judgment against him. In the United States District Courts there are also provisions in relation to service of process in nearby districts in a few instances. While Congress undoubtedly has power to enact that the process of a particular District Court could be served in any portion of the United States it never has si enacted, because this would lead to oppression. The United States District Courts, therefore, so far as the service of process outside of a district is concerned, are in much the same condition as the courts of limited jurisdiction within the State. A\'hile State courts of general jurisdiction, like the Supreme Court of New York, are limited by general princi- ples of law, not found in any statute, so that their process cannot be personally served without the limits of the State, as the foundation for personal judgments against the defendants thus served. As before stated, however, there are certain exceptions to this rule; although there is no exception to the general statement that process cannot be served out- side of the territorial limits of the court for the purpose of bringing a defendant before the court, in order that a personal money judgment may be entered against him. Where, however, there is property, either real or personal, within the juris- diction of the court, over which property the court can acquire jurisdiction, and there are conflicting claims to the title to this property, then the jurisdiction of the court is rather broad in allowing it to bring in all parties who have any interest in, or who claim any interest in, this property, no matter where they may be, so that all the questions in relation to the title may be determined in one action. This rule arises from the very necessity of the case. For example, in relation to real property, if such a rule did not exist, it would be impossible sometimes to clear up the title to a particular piece of real estate, even though it was situated entirely within the borders of one commonwealth. The courts, therefore, have recognized the necessity in such oases of bringing in foreign defendants, and so the 188 Bradbury's lawyers' manual Affidavit on Motion for Order for Service of Summons by Publication person and is not a resident of the State of New York) (or diligent inquiry has been made and the defendant C. D. remains unknown to the -plaintiff and the plaintiff is unable to ascertain whether the defendant is or is not a resident of the State of New York) (or the defendant is a resident of the State of New York and has departed therefrom with intent to defraud his creditors) (or that the defendant general rule may be broadly stated, that wherever there is property, either real or personal, within the jurisdiction of a particular court, the title to which is in question, that such court has power to send its process anywhere, either by pub- lication or by personal service, outside the State or other territorial jurisdiction of the court, in order that all the questions in relation to the title may be finally determined. Defendants, in such cases, are bound by the judgment entered, even though they are served by publication or personally without the territorial limits of such court. But even in such an action, if it is necessary or desirable that a personal money judgment shall be entered against a defendant, other than an adjudication of his rights in the property in question, the service cannot be made either by publication or personally without the State. This principle is illustrated in the case of the foreclosure of a mortgage against the person liable on the bond for a deficiency judgment. All parties who have an interest in the property and whose liens it is desired to cancel or merge into the judgment, may be thus served in an action to foreclose a mortgage, but if the defendant, who is personally liable for a deficiency judgment on the bond, resides without the State, and process cannot be served upon him personally within the State, then there is no power in the court to enter against such person a deficiency money judgment. The same doctrine holds true in relation to personal property, over which the court can acquire jurisdiction. All sorts of liens and claims against the property may be adjudicated, so long as the court has control of the property itself, and in such an action process may be served by publication or personally without the State. But again, personal judgment cannot be rendered against any of the defendants who are thus served except to adjudicate the amount of his lien or claim in relation to the particular property. There is another class of cases in which a limited jurisdiction may be acquired. This is where an attachment is issued and property belonging to the non-resident is actually seized by the court within the State. In such cases the court has power to enforce the claim against the non-resident in so far as the property thus seized will satisfy it. For a long number of years attachments were allowed only in ac- tions on contract. But a number of years ago the Code of Civil Procedure was broadened so as to allow an attachment in almost any kind of an action. This was to permit citizens of the State of New York to enforce their claims against non-residents to the extent of the property which could be seized in New "li'ork and thus compel the non-resident to come to New York to defend the claim. Similar statutes are found in practically all the States. But in such an action the claim can be enforced only to the extent of the property seized, and a personal judgment cannot be rendered against the defendant for the deficiency between the amount of the claim and the value of the property which is thus taken, unless SUMMONS AND THE SERVICE THEREOF 189 Affidavit on Motion for Order for Service of Summons by Publication is a resident of the State of New York and has departed therefrom to avoid the service of a summons) (or the defendant is a resident of the State of New York and keeps himself concealed therein with the intent to defraud his creditors and to avoid service of a summons), (or the defendant, CD., is an adult and a resident of the State of New York and has been continuously without the State of New the defendant appears and defends the action, when process is served outside the State. There is another class of cases the rules as to which are involved in a good deal of doubt. This relates to claims against residents of the State of New York, who are temporarily absent or who have absconded for the purpose of avoiding the service of a summons, or to defraud their creditors. So long as they remain technically residents of New York the courts have a much broader power to en- force claims against them than they have against non-residents, or citizens of for- eign countries, who are without the jurisdiction of the court. Originally the law merely provided for a form of substituted service against residents, that is, by leaving the process at the place of residence of the defendant, where it appeared that he was a resident of the State, but that he could not be reached personally. This practice has been extended somewhat, but the power of the court in this direction has never been definitely ascertained and still remains somewhat obscure. The power of the court to adjudicate against the citizens and residents of the State which create the court have been held to be rather broad, but as before stated, the doctrines in this regard have not been definitely settled as yet. There is still another class of cases where service by publication or without the State is allowed. That is, where it relates to the status of a citizen of the State. This particular doctrine relates almost exclusively to matrimonial actions. Thus, where it appears that the plaintiff in the action is a resident and a citizen of the State and the court has jurisdiction of the cause of action, then a personal judg- ment may be entered against the defendant, in so far as it adjudicates his status, in regard to his domestic relations, after service by publication or personally without the State. The application of the general principles to which reference has already been made, however, has involved this question in the utmost confu- sion. The decisions of the United States Supreme Court have not been uniform. All that can be definitely said on this subject is that if the "matrimonal domicile" is within the State where the action is brought then valid service may be made by publication or personally without the State, so as to render a binding judgment on the defendant. But exactly what the term "matrimonial domicile" means is not so clear. Speaking very generally, if the husband and wife were residents of the State of New York and there resided when an act was committed which en- titled either husband or wife to a judgment for a divorce or separation and the one who was subsequently made a defendant should thereafter depart from the State of New York and the innocent party should remain in the State of New York, then the courts of New York would have jurisdiction of an action in behalf of the innocent party, and in such an action the process might be served on the defendant by publication or personally without the State. But there are so many 190 BRADBURY'S LAWYERS' MANUAL Affidavit on Motion for Order for Service of Summons by Publication York more than six months prior to the day of ,19 , and the said defendant has not made a designation of a person upon whom to serve the summons on his behalf, as prescribed by § 430 of the Code of Civil Procedure) {or if such a designation has been made it no longer remains in force, or service upon the person so designated cannot be made within the State after diligent' effort) . II. (There should be supporting averments as to any of the above allegations upon which the motion for an order for service by publication is founded.- Thus, if the motion is on the ground that the defendant is a non-resident or a foreign corporation, there should be proper averments to show how the plaintiff knows this fact. If it is on the ground that attempts have been made to serve the summons on the defendant and he has departed from the State or keeps himself concealed within the State to defraud his creditors, or to avoid the service of the summons, there should be supporting affidavits showing what efforts have been made to serve the summons on the defendant personally, or how the information has been derived that the defendant has departed from the State. If the defendant is an adult and a resident of the State and has been continuously without the State more than six months there modifioations, and to a certain extent, extensions of this rule, that it would be impossible to discuss them in the space allowed here. This note is merely for the pui-pose of calling attention to the general rules which govern the subject. The whole subject in relation to actions other than matrimonial actions is again complicated in New York by the statutory provisions in relation to the jurisdiction of the courts in actions by and against foreign corporations and non- residents. While the Code, to which reference has been made, allows the summons to be served by publication or personally without the State in certain actions against foreign corporations, nevertheless it should appear that the court itself has jurisdiction of the particular case of an action against a foreign corpora- tion before resort is had to this mode of serving the summons. There is still one further complication in New York which arises from court decisions and not from statute. This relates to the rule which has been estab- lished in New York, known generally as "discretionary jurisdiction." That is, in tort actions, where the tort was committed without the State and all the parties are non-residents of the State, the court, in its discretion, will say whether or not it will take jurisdiction of such an action. That the court has power to deter- mine such a controversy is well settled. In some cases it exercises jurisdiction. Thus where one non-resident has absconded with a large fund from another State and has brought it to New 'V'ork, and the person from whom the money has been SUMMONS AND THE SERVICE THEREOF 191 Affidavit on Motion for Order for Service of Summons by Publication should also be appropriate averments showing how the plaintiff is aware of these facts. If an attempt has been made to bring the action against the defendant to prevent the Statute of Limitations from barring the action there should be particular averments or supporting affidavits showing what efforts have been made to serve the summons. If the action is against stockholders of a corporation there should be particular averments showing the nature of the action.) III. That a warrant of attachment has been duly issued in said action against the property of the defendant and the Sheriff of the County of (New York) has duly levied upon property of the defendant in said county under said warrant of attachment. Or, That said action is brought for a judgment that said de- fendant C. D. be excluded from a vested (contingent) in- terest in or lien upon the specific real (personal)! 'property in this State which is described in the complaint herein. stolen comes from the other State to New York and brings proceedings in our courts for the purpose of securing the fund, the court will usually entertain juris- diction. But in negligence actions for personal injuries, where the accident hap- pened without the State and all the parties are non-residents of the State, the court will usually not entertain jurisdiction, even though the process is served on the defeiidant while he is temporarily within the State of New York.' Therefore, in such actions usually the court would refuse to entertain jurisdiction, even to the extent of the value of property which might be attached in New York. In regard to actions on contract, however, an entirely different rule prevails. In contract actions the rule is quite general that jurisdiction will be entertained even though the contract was made without the State and all the parties, both plaintiff and defendant, are non-residents of the State, unless the statutory rule is involved which permits the courts of New York to take jurisdiction over foreign corpora- tions only in the cases specified in the statute. In the foregoing discussions only the general rules which have become well settled are stated or discussed. For the many modifications the numerous cases on the point must be examined. They may be found in any of the digests under the topics "jurisdiction" and "conflict of laws." These general rules are stated here merely as a warning to students so they may not become involved in ex- pensive non-productive litigation, by attempting the service of process by publica- tion or personally without the State, in actions in which the courts would not have jurisdiction by reason of doctrines established by the courts and which cannot be discovered readily by reference to the statutes alone. 192 • Bradbury's lawyers' manual Order for Service of Summons by Publication or Personally Without the State {Such as foreclosure of a mortgage, in partition or in eject- ment.) Or, That the action is brought for a divorce (separation). IV. A verified complaint is hereunto annexed and made a part of this application. V. The plaintiff will be unable with due diligence to serve the summons herein on the said defendant CD. within the State of New York. VI. No previous appUcation for such an order had been made. Wherefore the plaintiff prays that an order may be made permitting the service of a summons in the above-entitled action on the above-named defendant, C. D., by publication or personally without the State, piu-suant to the Statute and rules in such case made and provided. Sworn to before me this day of , 19 . {Signature and title of officer.) L. M. FORM NO. 127 Order for Service of Summons by Publication or Personally With- out the State. ^ (Code Civ. Pro., §§ 438, 439, 440 and 441) At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- « house therein on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. It appearing to the satisfaction of the court, in the above- entitled action, that C. D. is {here state the grounds of the service 1 Under § 443 of the Code, where the action is brought under subdivision 5 of SUMMONS AND THE SERVICE THEREOF 193 Order for Service of Summons by Publication or Personally Without the State of the summons by publication in accordance with one of the sub- divisions of Code Civ. Proc, § 438) and a motion having been duly and regularly made by the plaintiff above named for an order authorizing the service of the summons in this action on said defendant by publication, or without the State, pursuant to the statutes and rules in such case made and provided ; Now, on reading and fihng the complaint duly verified the day of } 19 , and the affidavits of L. M. and G. H., sworn to the day of 19 , and the day of , 19 , and it appearing that the plaintiff has been and will be unable, with due dihgence, to make personal service of the summons on the defendant within the State of New York: Now, on motion of G. K., the attorney for the plaintiff, it is hereby Ordered that the summons in the above-entitled action be served on the defendant, C. D., by pubhshing the same in the and , two newspapers most likely to give notice to the defendant, once a week "for six successive weeks, and on or before the day of the first pubUcation that the plaintiff deposit in the postoffice in the Borough of Manhattan, City, County and State of New York a set Of copies of the simi- mons, complaint and of this order, contained in a securely closed postpaid wrapper directed to the said C. D., at Street, in the City of , in the State of New York {or the court being satisfied by the affidavits mentioned above that the plaintiff cannot, with due diligence, ascertain the place or places where the defendant would probably receive matter trans- mitted through the postoffice, it is § 538, the summons, accompanied by a complaint, may be served personally on the defendant without the State in the same manner as if such service were made within the State and without a special order. Subd. 5 of § 438, reads as follows: "Where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in or lien upon, specific or real personal prop- erty within the state; or that such an interest or lien, in favor of eith& party may be enforced, regulated, defined or limited; or otherwise affecting the title to such property." . As to. the persons who can serve a summons personally without the State, see Code Civ. Pro., § 433, subd. 5, as amended in 1916. 194 BRADBURY'S LAWYERS* MANUAL Affidavit of Publication of Summons and Notice Ordered, that the mailing of copies of the summons, complaint and order be dispensed with). (Or at the option of the plaintiff, in lieu of service by publi- cation and by mail, as herein specified, said summons and com- plaint may be served personally on said defendant, C. D., in the State of New Jersey.) Enter, P. A. H., J. S. C. FORM NO. 128 Notice Subjoined to the Summons When Served by Publication or Personally Without the State (Code Civ. Pro., § 000) To {the name of the defendant thus served). The foregoing summons is served upon you by publication pursuant to an order of {naming the judge and his official title), dated the day of , 19 , and filed with the complaint in the office of the Clerk of the Court, at the County Courthouse in the City, County and State of New York. Dated the day of , 19 . L. M., Attorney for Plaintiff, No. , Street, New York City. FORM NO. 129 Affidavit of Publication of Summons and Notice {Title Same as Complaint) State, City and County op New York: ss: Q. R., being duly sworn, deposes and says that he is the printer {publisher) of the , a newspaper published SUMMONS AND THE SERVICE THEREOF 195 Affidavit of Mailing of Summons and Complaint and Notice in the City of ; that a summons and notice, copies of which are annexed hereto, were pubhshed in said newspaper on the following dates, to wit : (Specify each date on which the summons and notice were printed.) That said summons and notice were in the following form, to wit : (here usvally is pasted in a copy of the summons and no- tice, as published). Sworn to before me this I Q. R. day of , 19 . J (Signature and title of officer.) FORM NO. 130 Affidavit of Mailing of Summons and Complaint and Notice, Pur- suant to Order for Publication (Title Same as Summons) State, City and County of New York: ss: L. M., being duly sworn, deposes and says that he is over the age of twenty-one years (if between eighteen and twenty-one years, state age); that on the day of , 19 , which was on or before the date of the first publication thereof, he served the annexed summons, complaint and notice on the defendant, C. D., by enclosing true copies of such summons, complaint and notice in a securely closed, postpaid wrapper, directed to the said C. F., at Street, in City of , State of , and depositing the same in the general postoffice in the Borough of Manhattan, City, County and State of New York, (or in a postoffice box regularly mmntained by the Government of the United States at in the City, County and State of New York). Sworn to before me, this 1 L. M. day of , 19 . J (Signature and title of officer.) 196 BRADBURY'S LAWYERS' MANUAL AfiBdavit of Service of Summons on Defendant Personally Without the State FORM NO. 130a Affidavit of Service of Summons on Defendant Personally Without the State (Code Civ. Pro., §§ 442 and 443, subd. 5, as am'd by L. 1916, u. 439, in effect Sept. 1, 1916) (With two important exceptions noted below the affidavit is the same as Form No. 107, page 161, except that it shows that the summons was served without the State of New York. The excep- tions noted above are as to the persons who may make such service and as to the notice which must be served with the summons. The persons who may make the service are specified in Code Civ. Pro., § 443, and unless the affidavit of service is made by one of the persons specified it will be ineffective. Cohnfield v. Bliss, 174 App. Div. 434; 161 Supp. 160. The affidavit must also show that the same notice that is provided in Code Civ. Pro., § 44^, shall be attached to the summons when it is served by publication and shall also be attached to the summons when served personally without the State. See particularly Code Civ. Pro., §§ 44^ omd 443, subd. 1.) CHAPTER X SERVICE OF PAPERS OTHER THAN SUMMONS FORM NO. PAGE 131. Affidavit of service of paper other than summons on an attorney. . . . 197 FORM NO. 131 Affidavit of Service of Paper Other than Summons on an Attorney ^ (Title of Action as in Complaint) State of New York County of New York ss : City of New York A. B., being duly sworn, deposes and says that he is over the age of twenty-one (if between eighteen and twenty-one state age) ; that on the day of , 19 , at No. , Street, in the City, County and State of New York, he served the annexed (description of paper) on C. D., Esq., the attorney ' Most of the papers in an action after it is once begun by the proper service of a summons may be served either personally or by mail, on the attorney for either party. Thus after an action has been commenced by the service of a summons only and the defendant has appeared by the service of a notice of appearance, the plaintiff's attorney may serve the complaint on the defendant's attorney either personally or by mail. The defendant's attorney may also serve a notice of ap- pearance, a demurrer or an answer on the plaintiff's attorney either personally or by mail. The only penalty in such cases for service made by mail is, that if so made, the attorney on whom the service is made has three additional days within which to make the next move, over and above the time ordinarily al- lowed for the next move by statute or rule. Code Civ. Pro., § 798. Where service is made by mail the service can usually be accomplished by a proper mailing on the last day to make such service. That is, where the defendant has twenty days in which to serve an answer he may mail the answer to the plain- tiff's attorney on the twentieth day, even if it does not reach the plaintiff's at- torney until the twenty-first day, provided it is mailed in the city where the mailing attorney has his office. There are some cases, however, in which such a practice is dangerous and resort is not had thereto by careful attorneys. This is especially true in the oases where the time to do a particular act cannot be en- larged by the court, nor can a default be opened. Thus a notice of appeal must be served strictly within the statutory time specified therefor, and the court has 197 198 BBADBURY S LAWYERS MANUAL Affidavit of Service of Paper Other than Summons on an Attorney for the plaintiff (defendant) in the above-entitled action, by de- livering to and leaving with said attorney a true copy thereof. (Or in case of an order to show cause containing the original signa- ture of the judge granting same, or an order granting a stay contain- ing the original signature, there should be added: And at the same time he exhibited to said CD., the original order bearing the signature of Hon. Peter A. Hendrick, one of the Justices of this court, at the foot of said order.) Deponent further says that he knew the person so served to be the said C. D., the attorney for the plaintiff (defendant) in the above-entitled action. (// the attorneys on whom the service is to be made constitute a firm, such as Smith, Brown and Jones, the service on any one of members of the firm would be sufficient. In that event, the affidavit would read as follows.) , A. B., being duly sworn, deposes and says that he is over the age of twenty-one years (if between eighteen and twenty-one, state age) and that on the day of , 19 , he served the annexed (description of paper) on Smith, Brown and Jones, the attorneys for the defendant (plaintiff) in the above-entitled action, by delivering to and leaving with Joseph Brown, one of the members of said firm of Smith, Brown and Jones, a true copy thereof, at No. , Street, in the Borough of Manhattan, City, County and State of New York. Deponent further says that he knew the person so served to be the said Joseph Brown, a member of the firm of Smith, Brown and Jones, the attorneys for the defendant (plaintiff) in this action. no power to enlarge the time or to open the default if the notice is not served in time. Careful attorneys, therefore, never serve a notice of appeal by mail. Thev either serve it personally and get an admission of service or serve it personally and have an affidavit of service made immediately after it is done, either filing or retaining such affidavit of service, as local rules may require. The manner in which papers may or must be served is specifically pointed out in Code Civ. Pro. §§ 796-802. If a paper is served by mail it should not be done by registering the letter as this involves some difficulty in proper delivery at times and thus is subject to delay. A return card should not appear on the envelope because this in a few instances might cause non-delivery when without the return card delivery might be eiffected. SERVICE OF PAPERS OTHER THAN SUMMONS 199 Affidavit of Service of Paper Other than Summons on an Attorney [// the paper was served through the mail the affi,davit would read as follows: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years (if between eighteen and twenty- one, state age) ; that on the day of , 19 , he served the annexed (description of paper) upon CD., Esq., the attorney for the plaintiff (defendant) by depositing said paper, properly enclosed in a postpaid wrapper in the General PostofRce (or in a postoffice box regularly maintained by the Gov- ernment of the United States and under the care of the postoffice, at , in the City, County and State of New York), addressed to the said C. D., at No. , Street, City, County and State of New York, and that said address was the address designated by the said C. F., as his address within the State of New York where papers in said action might be served on the preceding papers in the action served by the said CD.] (If the paper was served during the absence of the attorney from his office the affidavit would be as follows: A. B., being duly sworn, deposes and says that he is over the age of twenty-one years (if between 18 and 21, state age); that on the day of , 19 , at No. , Street, in the City, County and State of New York, he served the annexed (description of paper) on C D., Esq., the attorney for the plaintiff (defendant) in the above-entitled action by deliv- ering to and leaving with E. F., the partner of the said C D. (or with C. D.'s clerk, or with a person having charge of C. D.'s office) a true copy thereof and at said time said CD. was absent from his said office) . (7/ the service was made by leaving it at the attorney's office when there was no one in charge to receive it, the affidavit would be as follows:) A. B., being duly sworn, deposes and says that on the day of , 19 , at No. , Street, in the City, County and State of New York, he served the annexed (de- scription of paper) on C F., Esq., the attorney for the plaintiff (defendant) between six o'clock in the morning and nine o'clock in the evening, by depositing and leaving a true copy thereof in a conspicuous ~jplace in his said office (to wit on a large 200 Bradbury's lawyers' manual Affidavit of Service of Paper Other than Summons on an Attorney table in the said office) at the address above mentioned (or by depositing it enclosed in a sealed wrapper directed to him as above in his office letter box) ^ said office at the time having been open but there being no person in charge of his office upon whom the service could be made. (// the office is not open so as to leave the paper therein and there is no office letter box the service may be made by leaving the paper at the residence of the attorney within the State with a person of suitable age and discretion between 6 A. M. and 9 P. M.) Sworn to before me this \ A. B. day of , 19 . J {Signature and title of o^cer.) ' There have been few decisions as to what is sufficient service through an office letter box. Office letter boxes are not common in New York City. Usually there is a slit in the office door and letters when shoved through this slit fall on the floor. It is held that merely shoving the paper through the sht in the door is not a service by depositing the same in an office letter box. If it is necessary to make the service after the attorney's office is closed, in New York City, the only correct way in which service can be made is by making it at his residence before nine o'clock in the evening, by leaving it with the attorney in person or with a person of suitable age and discretion at such residence. Code Civ. Pro., §797. Wherever it may be necessary to enforce an order or decree by contempt pro- ceedings it is unwise to make any service except a personal one. There are very few instances in which contempt proceedings can be based on service of a paper on an attorney, and if it is contemplated that contempt proceedings may be necessary to enforce an order or decree the paper which forms the basis of such proceedings should be served personally on the party and a copy thereof served on the attorney. Whenever it is intended to found future proceedings on a copy of an order or decree which is filed the copy should invariably be certified. It is not necessary to have a certified copy of an order or decree to set the time running of the op- posite party to appeal. But if it is such an order or decree as will be the foun- dation for contempt proceedings and it is necessary to serve a copy of the order, the original being on file, it is always advisable that a certified copy should be served. ■^here is no rule of court or statute requiring that the person who serves a paper, other than original process, shall be of any specific age. Where, however, the order to be served is an order to ^ow cause or other order of that- nature, which is the basis of a special proceeding, it is advisable to have the affidavit state that the person serving the same is over the age of eighteen years, although there are no decisions holding that service by a person under eighteen years is invalid. CHAPTER XI APPEARANCE FORM NO. PAGE 132. Notice of appearance 201 FORM NO. 132 Notice of Appearance ' (Code Civ. Pro., § 421) New York Supreme Court, New York County. Adam Brown, Plaintiff, against Caleb Deering, Defendant, Notice of Appearance. Sir: Please to take notice, that the defendant Caleb Deer- ing hereby appears in this action, and that I am retained as At- torney for him therein, and demand that a' copy of the com- plaint and all papers in this action be served on me at my ' An appearance may be made by a defendant by serving a notice such as the one in the text on the plaintiff's attorney, or by serving an answer or demurrer. Code Civ. Pro., § 421. A voluntary general appearance of the defendant is equivalent to personal service of the summons on him. Code Civ. Pro., § 424. But in matrimonial ac- tions a notice of appearance is not sufficient in the absence of proof of the service of the summons. Rule 72, Gen. Rules of Prac. Sometimes it is desired to limit the appearance for the purpose of moving to set aside the service of process or to vacate an attachment or other provisional remedy. In such cases the notice of appearance is usually contained in the notice of motion and the limited character of the appearance is there noted. Thus the notice of motion might read : "The defendant apJ^->aring herein specially solely for the purposes of this mo- tion and not generally, you will please take notice," etc. If the appearance was not thus limited the mere fact of an appearance might be constituted as a waiver _2Q1 202 BRADBURY'S LAWYERS* MANUAL Notice of Appearance office, number 141 Broadway, Manhattan Borough, City and State of New York. Dated December, , 91 . Yours, &c., Eli Franklin, Attorney for Defendant, To George Howard, Esq. 141 Broadway, Plaintiff's Attorney, Borough of Manhattan, 31 Nassau St. New York City. Borough of Manhattan, New York City. of any defect in the service of the summons or other process even though a formal notice of appearance, an answer or a demurrer was not served. As against non-residents and foreign corporations it is doubtful whether a mere notice of appearance by a New York attorney is sufficient to bind the de- fendant K he or it subsequently comes in and contends that the appearance was unauthorized. In actions involving the title to real estate, therefore, careful at- torneys refuse to base jurisdiction over a non-resident or a foreign corporation on an attorney's appearance merely. They require an original authorization from the party, which must be duly acknowledged, showing that the attorney is au- thorized to appear for such non-resident or foreign corporation in the particular action in question. If a summons is served without a complaint the defendant may serve a notice of appearance on the plaintiff's attorney at any time within the time specified in the summons for the appearance or answer. In the Supreme Court twenty days and in the City Court of the City of New York six days. In the Municipal Court of the City of New York the appearance must be made in accordance with the Municipal Court Act, § 19. In other local courts the time varies. The service of a notice of appearance only entitles the defendant to notice of future proceedings, but after a complaint is served he must serve a demurrer or an answer to keep out of default. In a proceeding in a Surrogate's Court an appearance by an attorney is not sufficient to confer jurisdiction over the party for whom he appears unless a citation has previously been served on the party, or the party has executed and acknowledged an instrument in writing giving the attorney authority to appear for him. McGinn v. Lighthouse, 2 Bradbury's Pl. & Pr. Rep. 336. CHAPTER XII LIS PENDENS FORM NO. PAGE 133. Notice of pendency of action when the action affecting the title to real property • 203 FORM NO. 133 Notice of Pendency of Action When the Action Affects the Title to Real Property^ (Code Civ. Pro., § 1670) New York Supreme Court, New York County. (Names of all parties, both plaintiff and defendant.) Notice is hereby given that an action has been commenced and is now pending in this court by the above-named plaintiffs against the above-named defendants for (state concisely the object of the action) and the following is a description of the real ' In an action to recover a judgment affecting the title to or the possession, use or enjoyment of real property if the complaint is verified the plaintiff may, when he files his complaint, or at any time afterward before final judgment file in the clerk's office of the county where the property is situated a notice of the pendency of the action, stating the names of the parties" and the object of the action, and containing a brief description of the property in that county affected thereby. Code Civ. Pro., § 1670. The notice may be filed with the complaint before the service of the summons, but in that case personal service of the summons must be made upon a, defendant within sixty days after the filing or else before the expiration of the same time publication of the summons must be commenced or service thereof must be made without the State, pursuant to an order obtained therefor. Code Civ. Pro., § 1670. If it appears that the plaintiff's failure to serve the summons on the defendant within sixty days is due to the fact that the defendant has remained in hiding and refuses to disclose his residence a motion to cancel the lis pendens under Code Civ. Pro., § 1674, should be denied. Levy v. Kon, 114 App. Div. 795; 100 Supp. 205. 203 204 Bradbury's lawyers' manual Notice of Pendency of Action When Action Affecting Title to Real Property property affected by said action: (add description the same as in a deed) . Dated the day of , 19 . Elias Sargent, Attorney for plaintiff, Office and P. O. Address, No. , Street, New York City. To the Clerk of the County of You will please index the above notice as against the name of each of the following defendants : (add full names of all the de- fendants) . Dated the day of , 19 . Elias Sargent, Attorney for Plaintiff. But a defendant is entitled to an order cancelling notice of lis pendens, if the summons is not served within sixty days after the filing of the notice. Lipschitz V. Watson, 113 App. Div. 408; 99 Supp. 418. The service of the summons is not invalidated if made after the sixty days, but the notice of the pendency of action is merely nullified. Brandow v. Vroman, 22 Misc. 370; 50 Supp. 323. The notice of pendency of action is effective only on the fiUng of the complaint, and if a judgment is rendered intermediate the filing of the notice of the pendency of the action and the filing of the complaint, it is not affected by an order to file the complaint nunc pro tunc. Weeks v. Tomes, 16 Hun, 349; aff'd on opinion below, 76 N. Y. 601. The filing of the notice without the filing of the complaint is entirely ineffective. Albro v. Blume, 5 App. Div. 309; 39 Supp. 215. Where an authorized amendment of the summons and complaint are filed an amended notice may be filed without leave of court. Daly v. Burchell, 13 Abb. Pr. (N. S.) 264; Curtis v. Hitchcock, 10 Paige, 399. But if it is desired to amend the notice, independent of an amendment to the complaint, leave must be asked by motion. Vanderheyden v. Oary, 38 How. Pr. 367. There seems to be no ob- jection, however, to the filing of a new notice when the original notice is defec- tive, but, of course, the new notice would only be applicable from the time it was filed. A notice of pendency of action may be filed on behalf of a defendant who set.<< up a counterclaim. Code Civ. Pro., § 1673; Nielmhr v. Schreyer, 1 St. Rep. 626; 13 Daly, 546. CHAPTER XIII COMPLAINTS ^ FORMS NO. PAGE 134. Complaint; goods sold and delivered 206 136. Complaint; breach of con- tract for sale of chattels; seller against purchaser. . . 136. Complaint; action against infant for necessaries. 137. Complaint; implied warranty in the sale of seeds which proved to be adulterated 138. Complaint; action against in- fant for necessaries 216 139. Complaint; work, labor and services 140. Complaint; services of broker for commission on sale of real property where owner refuses to carry through 209 212 217 141. Complaint; damages for breach of contract of em- ployment 221 Complaint; building con- tract; delay in performaiice which owner waived 222 Complaint; promissory note; payee against maker; stat- utory form setting forth copy of note 226 144. Complaint; promissory note; payee against maker 227 142. 143. NO. PAGE 145. Complaint; promissory note payable to bearer 228 146. Complaint; partnership note made in partnership name 229 208 147. Complaint; promissory note made payable to the order of the maker 230 148. Complaint; promissory note against maker and en- dorser 231 149. Complaint; action on check; payee against maker 232 150. Complaint; action against endorser of check 233 151. Complaint; account stated. . 235 152. Complaint; money had and received 236 153. Complaint; action for rent. . 237 219 154. Complaint; negligence; action \ by administratrix for dam- ages for death of plaintiff's intestate 238 155. Complaint; negligence; mu- nicipal corporation; failure to properly maintain high- ways; plaintiff's intestate precipitated down unpro- tected embankment while riding in automobile 241 156. Complaint; bailment; hand- bag checked in parcel room ' See also further forms of Complaints in the chapters on the subjects indicated below: Foreclosure of Mortgage, see chapter on Mortgages; Foreclosure OF Mechanics' Liens, see chapter on Mechanics' Liens; Replevin, see chapter on Replevin; Partition, see chapter on Partition. See also Bradbury's Rules of Pleading and Bradbury's Forms of Plead- ing for a complete set of forms of complaints under the Code of Civil Procedure. 205 206 Bradbury's lawyers' manual Complaint; Goods Sold and Delivered NO. PAGE NO. PAGE of railroad station; clause icy by beneficiary named in in check limiting liability policy 253 of company 249 159. Complaint; fidelity insurance 157. Complaint; fire insurance policy 256 policy. 250 160. Complaint; action to enforce 158. Complaint on death claim restrictive covenant in on accident insurance pol- deed 259 FORM NO. 134 Complaint ; Goods Sold and Delivered . New York Supreme Court, New York County. A. B. Company, Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges: I. That the plaintiff is a domestic corporation.^ II. That between the day of , 19 , and the day of ,19 , both days inclusive, the plaintiff sold and delivered to the defendant goods, wares and merchandise consisting of (general description of goods) of the agreed (reasonable) value of one thousand dollars, and the defendant agreed to pay said sum therefor. III. That demand has been duly made for such sum and no part thereof has been paid except the sum of three hundred ' When a party to an action is a corporation organized under the laws of New York and the action is brought in New York, it is necessary to all^e only that such party is a, domestic corporation. If the party is a corporation organized under the laws of any other State the allegation must be: "That the defendant (plaintiff) is a foreign corporation duly organized and existing under the laws of the State of (naming Slate.)" If either party is a partnership the names of the individual partnei's should be given in the title and then there should be an allegation in the body of the com- plaint: "That the defendants (plaintiffs) (naming them) are and were at all the times hereinafter mentioned partners, trading under firm name of (giving firm name) , COMPLAINTS 207 Complairit; Goods Sold and Delivered dollars on account thereof, leaving a balance due of seven hundred dollars, no part of which has been paid. IV. That said goods were sold on a term of credit which expired on the day of , 19 , prior to the commencement of this action. Wherefore the plaintiff demands judgment against the defendant for seven hundred dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. State, City and County of New York: ss: G. H. being duly sworn, deposes and says that he is an officer, to wit, the president of the A. B. Company, the plaintiff in the above-entitled action; that said complaint is true of his own knowledge except as to the matters which are therein stated to be alleged on information and beUef and that as to those matters he believes it to be true.^ Sworn to before me this day of , 19 . (Signature and title of offlcer.) G. H. ^ See chapter on Verification. 208 Bradbury's lawyers' manual Complaint; Breach of Contract for Sale of Chattels; Seller Against Purchaser FORM NO. 135 Complaint; Breach of Contract for Sale of Chattels; Seller Against Purchaser ^ Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges: I. That on or about the day of , 19 , the deTendant duly agreed to purchase from the plaintiff the following described property {give concise description of goods) , and agreed to pay therefor the sum. of dollars, which said offer was duly accepted bj^ the plaintiff. II. That thereafter and before the date and deUvery of said goods, wares and merchandise the said defendant repudiated the said agreement aforesaid and refused to carry out the same. III. That thereafter and on the date agreed upon for the delivery of said goods the said plaintiff was and at all the times herein mentioned was and is willing and ready to perform said agreement according to the terms thereof, but the defendant 1 Adapted from Lilienlhal v. German American Brewing Co., 197 N. Y. 510; affirming without opinion 127 App. Div. 941 (no opinion) ; in which a judgment in favor of the plaintiff was affirmed. The contract in this case was by letters confirming a sale made by the plaintiff's representative. The verdict repr(»- sented the difference between the contract price and the market price on the day the goods were tendered, with interest from that day. The goods were ten- dered to the defendant, but were refused unless the plaintiff would accept the market price therefor. The seller may hold or store the goods and sue for the purchase price or he may sell them for the defendant's account and sue for the difference between the con- tract price and the market price for which he sells them. Where, however, the goods are to be manufactured and the defendant repudiates the contract before the work is done the plaintiff can sue for the profit which would have been made by manufacturing the goods and delivering thorn at the agreed price. COMPLAINTS 209 Complaint; Breach of Contract for Sale of Personal Property failed and refused to perform said agreement or to accept said goods or to pay therefor and wholly repudiated said agreement without just cause. IV. That by reason of the foregoing the plaintiff has sus- tained damages in the sum of dollars. Wherefore plaintiff demands judgment against the de- fendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Attorney for Plaintiff, No. 99 Broadway, Borough of Manhattan, New York City. State, City and County of New York : ss : A. B., being duly sworn, deposes and says that he is the plaintiff in the above-entitled action; that the foregoing com- plaint is true of his own knowledge except as to the matters which are therein stated to be alleged on information and belief and as to those matters he believes it to be true. Sworn to before me this day of , 19 . (Signature and title of officer.) A. B. FORM NO. 136 Complaint; Breach of Contract for Sale of Personal Property; Pur- chaser against Seller ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant alleges: I. (That at all the times hereinafter mentioned the defendant Adapted from Thedford v. Herbert, 195 N. Y. 63. 210 bradbcry's lawyers' manual Complaint; Breach of Contract for Sale of Personal Property was engaged in business in the City of New York under the registered trade name of C. D. & Company).' II. That on or about the day of , 19 , in the Borough of Manhattan, City and State of New York, the plaintiff and the defendant duly entered into an agreement whereby it was mutually agreed between them that the de- fendant should sell and deliver to the plaintiff, alongside his docks in the city of New York, nine thousand gross tons of broken coal, on or before the day of > 19 , the said coal to be delivered at the rate of about one thousand tons each month, and that the plaintiff should accept the same from the defendant and pay therefor the sum of dollars per ton. III. That the defendant entered upon the performance of said contract and delivered five hundred and sixty tons in part per- formance thereof, and the plaintiff paid to the defendant on said contract the sum of dollars in full payment for the said five hundred and sixty tons of coal dehvered by the defendant under said contract. IV. That the plaintiff was ready and wilUng, at aU times, between the said day of , 19 , and the day of , 19 , to receive the said coal and each installment thereof and to pay for the same pursuant to the terms of said contract and otherwise has duly performed all the conditions of said contract on his part. V. That the defendant has neglected and refused to deliver the said coal or any part thereof, with the exception of said five hundred and sixty tons, which were delivered as herein- before set forth, by reason of which the plaintiff has been dam- aged in the sum of dollars. VI. The plaintiff further alleges, upon information and be- lief, that during the months of July, August and September, 19 , there was no market in said City of New York where one thousand tons per month of said coal could be purchased and ' When an individual is doing business under a registered trade name he should be sued in his individual name. That is, the individual name should appear in the title of the action and then there should be an allegation as to the name COMPLAINTS 211 Complaiht; Breach of Oontfaot for Sale of Personal Property that it was practically impossible for the plaintiff to purchase broken coal in the market to take the place of the coal con- tracted to be sold by the defendant to the plaintiff during said months, as hereinbefore set forth. That at the time of the mak- ing of said agreement the defendant had due notice that the plaintiff had contracted to purchase said coal for the purpose of selling the same in the retail trade for a profit. That the plaintiff had a profitable and actual market for all of the coal so contracted to be sold by the defendant ajid could have actually sold all the coal so contracted for at a profit.^ VII. That by reason of the defendant's refusal and failiu-e to deliver the coal so contracted to be delivered during the said months of July, August and September, 19 , the plaintiff lost and has been deprived of great gain and profits which might and otherwise would have accrued to him by the delivery of said coal and the entire profit \diich he would have made by a resale of the same, amounted to the sum of dol- lars, in which said sum the plaintiff has been damaged by reason of the failm-e of the defendant to deliver said coal. Wherefore, the plaintiff demands judgment against the under whteh he does business as in the form in the text. This is for the purposes of identification. In such cases some practitioners add in the title the same in- formation. For example, in the form in the text the designation of the defendant instead of being "C. D., Defendant," would be "C. D., doing business under the Name and Style of C. D. & Company, Defendant." This, however, is not necessary so long as the information is contained in the body of the com- plaint. ' If by reason of the failure of the defendant to deliver the goods which he con- tracted to deliver the plaintiff went into the open market and bought the goods, at a price higher than the contract price, the allegation would be as fol- lows: "That by reason of the failure of the defendant to deliver said coal the plaintiff went into the open market and purchased the same, of the same quality that the defendant agreed to deliver, and was compelled to and did pay for the same the sum of dollars, which was the smallest sum for which the plaintiff could purchase the same, which was dollars in excess of the sum for which the defendant had thus agreed to deliver the said coal and by reason thereof the plaintiff has been damaged in the sum of dollars, no part of which has been paid." 212 Bradbury's lawyers' manual Complaint; Implied Warranty in Sale of Seeds Which Proved to be Adulterated defendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Attorney for Plaintiff, No. 100 Broadway, Borough of Manhattan, New York City. [Verification.] FORM NO. 137 Complaint; Implied Warranty in the Sale of Seeds Which Proved to be Adulterated ^ County Court, Ontario County. A. B., Plaintiff, against C. D. Company, Defendant. The plaintiff, complaining of the defendant, alleges: I. That at all the times herein mentioned the plaintiff was a resident of the County of Ontario, in the State of New York. II. That at all the times hereinafter mentioned the defend- ant was and is a domestic corporation . having its principal place of business in the Village of , in the County of Ontario, in the State of New York. III. That at all the times hereinafter mentioned the defend- ant was engaged in the business of selling seeds in connection with other business. IV. That on or about the day of , 19 , the plaintiff purchased of the defendant about two hun- dred pounds of alfalfa seed which the defendant warranted and represented was pure alfalfa seed, fit and proper to be ' Adapted from Depew v. Peck Hardware Co., 197 N. Y. 528; aff'g without opinion 121 App. Div. 28; 105 Supp. 390, in which a judgment in favor of the plaintiff was affirmed. gOMPLAINTS 213. Complaint; Implied Warranty in Sale of Seeds Which Proved to be Adulterated sown, and that the plaintiff then and there paid to the defend- ant for said seed so purchased the sum of dollars. V. That the plaintiff purchased said seed for the purpose of sowing the same to raise a crop of alfalfa and with the pur- pose and intent of securing a continuous bed or stand thereof as is usual in the proper course of husbandry, which said fact was well known to the defendant at the time of the sale of said seed by the plaintiff to the defendant. VI. On information and belief that pure alfalfa when sown and properly cultivated produces a perennial plant and grows during and after its second season so rapidly and luxuriantly that it win produce three to five cuttings or crops each year and that its duration of life and its productiveness extends to a period of from ten to fifteen years and during all of said period produces a valuable fodder and food for domestic animals and live stocki VII. On information and belief that said seed so produced as aforesaid was not piu"e alfalfa and was not fit and proper to sown, but was composed of trefoil seed, burr clover seed, dodder and divers other seeds which when sown with alfalfa seed produces large quantitues of foul, obnoxious and useless plants and seeds which said plants and seeds are unfit for use and of no value, but are damaging to the growth of alfalfa and other crops and grass and to the soil and some of which plants and seeds, when once sown and produced upon land, are almost impossible of eradication and destruction, and require a great amount of labor and care to destroy and exterminate from the soil, and depreciation to the value of the soil is thereby caused until their eradication can be accomplished. VIII. That it is impossible to know from the appearance of a- quantity of seed such as the plaintiff purchased, whether or not it is pure and good alfalfa seed; and plan tiff, relying upon said warranty and said representations, and believing them to be true, sowed the said seed so purchased upon about ten acres of good land, productive and clean as to foul and obnox- ious seeds and plants, owned and occupied by him, that being the usual and proper amount of alfalfa seed to sow upon that 214 Bradbury's lawyers' manual ? Complaint; Implied Warranty in Sale of Seeds Which Proved to be Adulterated quantity of land, the said land being properly cultivated and prepared and the said seed being properly sown and put in and thereafter cared for as seed alfalfa; and that by reason of the facts hereinbefore stated and because said quantity of seed, so sown as aforesaid, was composed of nearly or about one-half of seeds other than pure alfalfa seed, to wit: trefoil seed, bun- clover seed, dodder and divers other foul, obnoxious and useless plant and seed producing seeds, the crop which grew upon the said quantity of land, sown as aforesaid, was of no use or value to the plaintiff, but said seed so sown produced a small amoimt of alfalfa plants and grass mixed profusely with foul, obnoxious, useless and soil damaging plants and seeds, and by rea'son of the sowing and planting of the said seed so purchased, as afore- said, and because of the production by said seed of a large quantity of foul, obnoxious, useless and soil dama^g seeds and plants, as hereinbefore alleged, the plaintiff was obUged to and did, during the month of July , 19 , and without having harvested any alfalfa plants, hay or grass, plow up and attempt to destroy the crop raised upon the said land from the said seed pm-chased, as aforesaid, whereas if said seed had been pure alfalfa seed as represented and warranted, as afore- said, as he is informed and beUeves, he could and would have obtained from said seed so sown a large crop of alfalfa plants or grass in the year 19 , to wit; over seventy tons of alfalfa plants hay or grass and valuable as food and fodder for domestic animals and live stack and of the market value of dollars, whereby plaintiff suffered damage in the sum of dollars. IX. Upon information and belief, that in order to procure a continuing bed or stand of alfalfa plants or grass, as aforesaid described, it became necessary to plow up and destroy and eradicate from the soil the crop so raised, as aforesaid, and it also became necessary to refit, reeultivate and resow the said ten acres of ground, which plaintiff did, and whereas if said seed, so purchased of the defendant as aforesaid, had been pure alfalfa seed as represented and warranted, as aforesaid, as he is informed and believes, it would neither have been necessary for COMPLAINTS 215 Complaint; Implied Warranty in Sale of Seeds Which Proved to be Adulterated him to plow up, destroy and eradicate the crop, seeds and plants, so raised as aforesaid, nor, in order to produce the continuous bed or stand of alfalfa plants or grass, necessary to refit, re- cultivate and resow the said ten acres of land with alfalfa, and thus to do work and labor thereon, such as the plaintiff did, to the amount and value of dollars, wherein and whereby plaintiff suffered damages in the said sum of dollars. X. That because of the facts hereinbefore alleged and stated he was obhged to and did purchase another amount of alfalfa seed for which he paid the suni' of dollars, which seed he sowed upon said ten acres of land for the pmpose and with the intention of securing a continuous bed or stand of alfalfa plants or grass, as hereinbefore described, whereby plain- tiff suffered damages in the said sum of dollars. XL That because the seed so purchased of the defendant, as aforesaid described, produced foul, obnoxious, useless and soil damaging seeds and plants, and seeds and plants, which it will take much labor, care and attention to destroy and eradicate from the soil, the ground and quality of land and soil so sown, as aforesaid, was greatly injured in its market value, and greatly injured and damaged in its usefulness, pro- ductiveness and quality to the plaintiff to the further damage of dollars. XII. (That as soon as plaintiff discovered the said breach of warranty hereinbefore set forth and within a reasonable time after he knew of said breach the plaintiff gave written notice to the defendant of such breach of warranty and de- manded from the defendant the damages caused thereby, but the defendant has failed and refused to pay any portion of said damages, and no part thereof has been paid.) ^ "■This paragraph was not contained in the original complaint from which this form was taken, but would be necessary now under § 130 of the Personal Prop- erty Law, generally known as the Sales Act, which was added by L. 1911, o. 571, in effect September 1, 1911. This section provides that acceptance of goods by -a buyer does not discharge the seller from a breach of warranty, but the acceptor must givei notice to the seller of the breach of any promise or warranty, within a reasonable time in which the buyer knows or ought to know of such breach; other- 216 Bradbury's lawyers' manual Complaint; Action Against Infant for Necessaries Wherefore plaintiff demands judgment against the de- fendant in the smnof dollars, with costs. S. H. & F., Plaintiff's Attorney, Canandaigua, New York. [Verification.] FORM NO. 138 Complaint; Action against Infant for Necessaries New York Supreme Court, New York County. A. B., Plaintiff, against C. D., by E. D., her Guardian Ad Litem, Defendant. The plaintiff, complaining of the defendant, alleges : " I. That the defendant, C. D., is an infant of the age of seven years. wise the seller shall not be liable. It is held in an action for such a breach that it must appear in the complaint that such a notice was given, otherwise the com- plaint is defective. Regina Co. v. Gately Furniture Co., 171 App. Div. 817; 157 Supp. 746; O'Tuck v. Tansy, Supreme Court, Trial Term, Part II, Bijur, J., December 13, 1916, N. Y. Law J., December 14, 1916. It has been held that an allegation in a counterclaim that the defendants "duly offered to return to the plaintiff the merchandise referred to which was so defec- tive'' with further allegations showing that there was a breach of warranty was compliance with § 130 of the Real Property Law. Kugelman v. Ritier, 90 Misc. 279; 152 Supp. 1002. . It is obvious that in the case from which the complaint in the text was taken there was no possibility of discovering the breach of warranty until the seeds had been planted and it was discovered that the plants which grew were not such as were to be expected from the seeds which were purchased. It is probable, therefore, that the notice of the breach could not be given until after it was thus discovered. But this, of course, was an unusual case. Ordinarily the notice would probably have to be given as soon as the goods were examined and the breach might reasonably have been discovered. COMPLAINTS 217 Complaint; Work, Labor and Services II. That the plaintiff, between the day of , 19 , and the day of , 19 , both dates inclusive, furnished and suppUed the defendant, C. D., upon the defendant's request, and implied promise to pay therefor, with board and lodging, at No. Street, in the City, County and State of New York. III. That said board and lodging were necessaries and were of the reasonable value of dollars per week, in all the sum of dollars, and were of the character suited to the position in hfe of the said defendant, CD. IV. That demand has been made for said siun of dollars and no part thereof has been paid, except the sum of dollars, leaving due to the plaintiff, from the said defendant, C. D., the sum of dollars. Wheeefore, the plaintiff demands judgment against the defendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, [Verification. Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. FORM NO. 139 Complaint; Work, Labor and Services New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. The plaintiff, complaining of the defendant, alleges : I. That between the day of , 19 , and the day of , 19 , the plaintiff, at the 218 Bradbury's lawyers' manual Complaint; Work, Labor and Services special instance and request of the defendant, performed work, labor and services for the defendant as (state the general nature of the work and services), which were of the agreed and reason- able value ^ of dollars, no part of which has been paid. (// the plaintiff is a lawyer, or a physician, there should be allegations showing that he was duly licensed to practice as such within the State of New York. There are some occupations, like that of a plumber, for example-, which a person is not permitted to carry on without a license and in such a case there must be an allegation in the complaint that the plaintiff was duly licensed as such plumber in the State of New York, or the City of New York, as the case may be.) Wherefore, the plaintiff demands judgment against the defendant in the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, New York City. [Verification.] 1 While, strictly speaking, it is not logical to plead that services are of both an agreed and a reasonable value, nevertheless this is a form which has become common and is almost invariably used. If the services were of an agreed value, of course it is unimportant what the reasonable value of the services were. On the other hand, if the action is to recover for the reasonable value of the services, of course it is assumed that there was no agreed value, otherwise the recovery could not be had on the reasonable value. It is held, however, that a recovery may be had for the reasonable value of services under a complaint which alleges solely the agreed value and vice versa, that a recovery may be had under an agreed value where the complaint alleges a reasonable value. The form in the text, therefore, has come into common use. COMPLAINTS 219 Complaint; Services of Broker for Commission on Sale of Real Property FORM NO. 140 Complaint; Services of Broker for Commission on Sale of Real Property where Owner Refuses to Carry Through Sale New York Supreme Court, New York County. A. B., "* Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges : I. That on or about the day of , 19 , the defendant, who then represented himself to be the owner of the property, No. , Street, in the City of , requested the plaintiff, as broker, to procure a purchaser for said property for the sum of dollars, and the defendant agreed to pay to the plaintiff five per centum of said pm-chase price, on the sum of dollars; and if the plaintiff should procm-e a piuxjhaser at a price in excess of said dollars, then the plaintiff was to have, in addition, ten per centum of any excess over and above the said dollars, for which he could procm-e a purchaser for said property. II. The terms upon which the defendant agreed to sell said property were as follows: On the signing of the contract to purchase there was to be paid the smn of dollars; upon the closing of the title the remainder of said sum was to be paid as follows : the sum of dollars in cash and by the purchaser executing a purchase money mortgage which should be a first hen on said property which should be secured by a bond in Uke amoimt, in the sum of dollars (state any other terms in relation to the mortgage as to interest, time to run and any other particulars specified) . III. That on or about the day of , 220 Bradbury's lawyers' manual Complaint; Services of Broker for Commission on Sale of Real Property 19 , the plaintiff procured a responsible purchaser who was ready and willing to enter into a contract for the purchase of said property upon the terms hereinbefore mentioned and said purchaser was of sufficient financial ability to carry out such contract and said proposed purchaser duly signed a contract and was ready and willing to deliver and perform said con- tract wherein and whereby he agreed to purchase said property for the sum of dollars, on the terms hereinbefore set forth and a copy of said contract is hereunto annexed, marked Exhibit A, and made a part of this complaint, and said contract was thereafter and on the day of , ,19 , duly presented to the defendant and he was re- quested to sign the same, and at the same time there was tendered to the defendant the sum of dollars in cash, being the amount agreed upon by the plaintiff and the defendant as a preliminary payment upon the signing of the contract of sale of said property; that the defendant refused to sign said contract or proceed with the sale of said property or to accept the said sum so tendered, and by reason thereof the plaintiff is entitled to recover of the defendant the siun of dollars, being five per centum on the purchase price of said property, demand for which has been duly made and no part thereof has been paid. Wherefore, the plaintiff demands judgment against the- defendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] COMPLAINTS 221 Complaint; Damages for Breach of Contract of Employment FORM NO. 141 Complaint; Damages for Breach of Contract of Employment New York Supreme Court, New York County. A. B., Plaintiff, against CD., Defendant. The plaintiff, complaining of the defendant, alleges: I. That on or about the day of , 19 , the plaintiff and the defendant entered into an agreement wherein and whereby the defendant employed the plaintiff (as a general manager of the defendant's store) for the term of one year from said date at the yearly salary of dollars. II. That thereupon, pursuant to said agreement, the plain- tiff entered into the employment of the defendant and man- aged and conducted the business of the defendant, at the afore- said store, from the day of , 19 , to on or about the day of , 19 , and duly performed all the terms and conditions of the said contract of employment on the part of the plaintiff to be performed. III. That on or about the day of ,19 , the defendant wrongfully and without just cause therefor, discharged the plaintiff and since that time has prevented the plaiutiff from performing his part of said agreement, although the plaintiff has duly tendered his services to the defendant and has ever been and is still ready and willing to perform said services according to said agreement.^ 1 It is not necessary for the employ^ to plead his inability to procm-e other employment, as the burden of proof is on the defendant to show by way of miti- gation of damages that the plaintiff secured other employment or that it was offered to him or that it might have been found with reasonable diligence. Milage V. Woodward, 186 N. Y. 352; Fuchs v. Koemer, 107 N. Y. 529; Howard v. Daly, 222 Bradbury's lawyers' manual Complaint; Building Contract; Delay in Performance Which Owner Waived IV. That for the remaining months ^ of said employ- ment the plaintiff would have been entitled to receive the sum of dollars under the terms of said contract and the plaintiff has been damaged in the sum of dollars by reason of the wrongful discharge as aforesaid. V. That demand has been duly made for the sum bf dollars, and no part thereof has been paid. Wherefore the plaintiff demands judgment against the defendant for the sum of dollars, with interest from the day of , 19 . Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. - [Verification.] FORM NO. 142 , Complaint; Building Contract; Delay in Perfonnance Which Owner Waived ^ New York Supreme Court, New York County. A. B. Company, Plaintiff, against C. D. Company, Defendant. The plaintiff complaining of the defendant alleges: I. (That at all the times hereinafter mentioned the plaintiff was still and is a domestic corporation.) 61 N. Y. 362; Graff v. Blumberg, 53 Misc. 296; 103 Supp. 184; Monroe v. Proctor, 51 Misc. 632; 100 Supp. 1021. ' The prima facie measure of damages is the full amount which the plaintiff would have received under the contract whether or not the action is brought before the contract would have come to an end by its terms. Cottone v. iW«r- ray's, 138 App. Div. 874; 123 Supp. 420. ^ Adapted from Deeves & Son v. Manhattan Life Insurance Co., 195 N. Y. 324 in which a judgment in favor of the plaintiff was recovered. COMPLAINTS 228 Complaint; Building Contract; Delay in Performance Which Owner Waived II. (That at all the times hereinafter mentioned the defend- ant was and still is a domestic corporation.) III. That on or about the day of , 19 , at the City of New York, the plaintiff and defendant entered into an agreement in writing whereby the plaintiff agreed to tear down and remove the building on the premises at No. , Street, in the City of New York, to make all the excavations for cellar and foundations of a new proposed build- ing on said premises and erect, complete and finish the proposed new building for the defendant upon the said premises at No. , Street, and make all the proposed alterations and additions in the building of the defendant, Nos. , and Street, and the connections between said last-men- tioned building and the proposed new building, and to provide on said premises all the materials for the foregoing; that all of the foregoing was to be done by the plaintiff in the best work- manlike manner and to the best of its ability, and in accordance with specified drawings, plans and specifications of , the architect of the defendant. That in and by said contract it was provided that all of said work, except the mason work, which the plaintiff agreed to perform itself, was to be sublet by the plaintiff to subcontractors, selected in a manner satis- factory to the defendant and approved by it, and the proper performance of all contracts made with subcontractors was to be guaranteed by the plaintiff. That in and by said contract the plaintiff guaranteed to the defendant that the total cost to the defendant of said new building and alterations of the existing building should not exceed dollars and agreed to exert its best efforts to reduce the cost to the defend- ant of any and all items of expense, and to reduce the cost of said work as far as may be, all saving of expense below said guaranteed amount of cost to enure to the benefit of the de- fendant. That in and by said contract the plaintiff further agreed that said building and alterations should be erected and completed according to the terms of said contract on or before , except for delay caused by fire or strikes, not occasioned by the fault of the plaintiff, or its subcontractors. 224 Bradbury's lawyers' manual Complaint; Building Contract; Delay in Performance Which Owner Waived That in and by said contract the defendant agreed to pay to the plaintiff upon the certificate of the architect the amounts as they fell due and became payable according to the terms re- spectively of the contracts of the various subcontractors afore- said and also to pay monthly upon such certificate ^ the actual cost of the mason work done and materials furnished by the plaintiff. And the defendant fiu-ther agreed to pay to the plaintiff, in addition to the foregoing, the sum of dollars, in full for the performance of said contract, in install- ments as follows: dollars when the roof was tight; the sum of dollars when the work was practically finished and the remaining dollars when the work was com- pletely finished. IV. That the plaintiff duly performed all the conditions of said contract on its part, except that it did not complete said buildings and alterations on or before the day of , 19 . That the delay in the completion of said build- ing and alterations by the time specified was not occasioned by any fault on the part of the plaintiff, but was caused by strikes and by the acts of the defendant in failing to dehver possession of said premises to the plaintiff until on or about the day of , 19 ; in its substituting trim covered with metal in heu of the trim called for in the specifications, and cement floors in heu of wood floors as originally provided in the specifications, and in making other substantial changes, additions and alterations in the plans and specifications, in interfering with the work as it progressed, in delaying decisions upon modifications, changes and alterations and upon questions relating to the methods of work as they arose, in failing to furnish promptly necessary information and data for the work, in deviating from the original plans and specifications and in making such substitutions and additions to said plans and specifications and such changes in said new building and alter- ations as necessarily prevented the completion of said building ' Where the payments are to be made upon the certificate of the architect and the architect has unreasonably refused to furnish such a certificate there should be an allegation to that effect. COMPLAINTS 225 Complaint; Building Contract; Delay in Performance Which Owner Waived and alterations by the time specified in said contract. And the plaintiff further alleges that the defendant, by reason of the facts aforesaid duly waived the requirement of said contract that the said buildings and alterations should be completed on the day of , 19 , and said building and alterations were fully completed within a reasonable time in view of the facts and circumstances hereinbefore stated, and were so completed on the day of , 19 . V. That the defendant has paid to the plaintiff the two in- stallments of dollars each, as provided in such con- tract, but has failed to pay to the plaintiff the residue of dollars, stipulated in said contract, although the said building was completely finished and said alterations were com- pletely made long before the commencement of this action and the payment of said sum became due and was duly de- manded on or about the day of , 19 . For a Second Cause of Action VI. The plaintiff, repeating the allegations contained in the preceding paragraphs of this complaint, and hereby re-alleging the same as if repeated in full, further alleges that the defend- ant made nmnerous additions to and alterations in said con- tract of the day of , 19 , many of them of a radical nature, the performance of which involved a large amount of services and for a longer period of time than was contemplated between the parties at the time said contract was entered into, or than was expressed within the terms of said contract; that the plaintiff has performed extra work and rendered extra services to the defendant in superintending and completing the large amount of additions, substitutions and alterations in and to the original plans and specifications ordered by the defendant and that such extra work and extra services are reasonably worth the sum of dollars, no part of which has been paid. Whekefore, the plaintiff demands judgment for the sima of dollars, with interest on dollars 226 Bradbury's lawyers' manual Complaint; Promissory Note; Payee Against Maker from the day of , 19 , on the first cause of action, and the sum of dollars, with interest from the day of , 19 , on the second cause of action, making together the sum of dollars, with interest as aforesaid, and costs. Ely Franklin, Attorney for Plaintiff, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] FORM NO. 143 Complaint; Promissory Note; Payee against Maker; Statutory Form Setting Forth Copy of Note (Code Civ. Pro., § 534) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges : I. That on or about the day of , 19 , the defendant duly made his promissory note in writing and for value delivered the same to the plaintiff, which said prom- issory note was in the words and figures as follows : "500. New York, 19 . "Thirty days after date I promise to pay to the order of Adam Brown, Five hundred dollars, with interest, at the Sea- board National Bank, New York City. Value received. Charles Dewey." II. That said note was duly presented at the place of pay- COMPLAINTS 227 Complaint; Promissory Note; Payee Against Maker ment expressed therein, on or about the . day of , 19 , and payment demanded and refused. III. The plaintiff is still the owner and holder of said note and there is due from the defendant to the plaintiff on said promissory note the sum of five hundred ($500) dollars, with interest from the day of , 19 , no part of which has been paid. Wherefore, the plaintiff demands judgment against the defendant, for the simi of five hundred (1500) dollars, with in- terest from the day of , 19 , with costs. Ely Franklin, Attorney for Plaintiff, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] FORM NO. 144 Complaint; Promissory Note; Payee against Maker New York Supreme Court, New York County. A. B., Plaintiff, against CD., Defendant. The plaintiff, complaining of the defendant, alleges : I. That on the day of , 19 , the de- fendant duly made his promissory note in writing, dated on that date, wherein and whereby he promised to pay to the order of the plaintiff the sum of five hundred dollars, at the First National Bank, at the City of Buffalo, New York, three months from the date of said note and for a valuable considera- tion he delivered the same to the plaintiff who is now the owner and holder thereof. II. That upon the date of the maturity of said note the 228 Bradbury's lawyers' manual Complaint; Promissory Note Payable to Bearer same was duly presented for pajonent at the place where the same was made payable by the terms thereof and demand for payment was duly made and no part thereof has been paid. Wherefore the plaintiff demands judgment against the defendant for the sum of five hundred ($500) dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification]. FORM NO. 145 Complaint; Promissory Note Payable to Bearer Supreme Court, New York County. A. B., against CD., Plaintiff, Defendant. The plaintiff, complaining of the defendant, alleges: I. That on the day of , 19 , the de- fendant duly made his promissory note in writing, dated on said date, wherein and whereby sixty days after date he prom- ised to pay to the bearer of said note the sum of five hundred ($500) dollars, at the Chase National Bank of the City of New York, and duly delivered said note for a valuable considera- tion to the plaintiff who is now the owner and holder thereof. {Or duly delivered the same for a valuable consideration to G. H. and subsequently, before the maturity of said note, the same was duly delivered to the plaintiff by G. H., for value, and the plaintiff is now the owner and holder thereof.) COMPLAINTS 229 Complaint; Partnership Note Made in Partnership Name II. That presentation and demand for the payment of said note was duly made on the date when it became due, at the place where the same was by its terms payable and no part thereof has been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney. No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] FORM NO. 146 Complaint; Partnership Note made in Partnership Name New York Supreme Court, New York County. A. B., Plaintiff, against C. D. and E. F., Defendants. The plaintiff, complaining of the defendants, alleges: I. That the defendants C. D. and E. F. are and were at all the times hereinafter mentioned co-partners in business, trad- ing under the firm name of D. and F. II. That on the day of , 19 , the defendants, as such partners, duly made, in said partnership name, their promissory note in writing, dated on said day, wherein and whereby thirty days from the date of said note they promised to pay to the order of the plaintiff the sum of five hundred ($500) dollars, with interest, at the Chase National Bank, in the City of New York, and for a valuable considera- tion duly dehvered the same to the plaintiff and the plaintiff is still the owner and holder of said note. 230 Bradbury's lawyers' manual Complaint; Promissory Note Made Payable to the Order of the Maker III. That at the maturity of said note the same was duly presented for payment and demand for payment was duly made at the place where the same was made payable by the terms thereof and was refused and no part thereof has been paid. Wherefore, plaintiff demands judgment against the de- fendants for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City.- [Verification.] FORM NO. 147 Complaint; Promissory Note made Payable to the Order of the Maker New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Plaintiff, complaining of the defendant, alleges: I. That on the day of , 19 , the de- fendant, CD., duly made his promissory note in writing dated on said date, wherein and whereby three months from the date thereof he promised to pay to the order of himself, at the Chase National Bank, New York City, the sum of five hundred (1500) dollars, with interest; that on the day of ,19 , said defendant duly endorsed said note and de- livered the same to this plaintiff for value and the plaintiff is the owner and holder thereof. COMPLAINTS 231 Complaint; Promissory Note Against Maker and Endorser II. That on the day of , 19 , at the place where said note was made payable by its terms, said note was duly presented for payment and demand for payment was duly made and no part of said note has been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of five hundred ($500) dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney. No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] FORM NO. 148 Complaint; Promissory Note against Maker and Endorser New York Supreme Court, New York County. A. B., Plaintiff, against C. D., and E. F. Defendants. The plaintiff, complaining of the defendants, alleges: I. That on the day of , 19 , the de- fendant CD. duly made his promissory note in writing dated on that date, wherein and whereby he promised to pay to the order of E. F., sixty days from the date of said note, the sirni of five hundred ($500) dollars, at the Chase National Bank, in the City of New York, and for a valuable consideration duly delivered the same to the defendant E. F. II. That before maturity of said note the said E. F. duly endorsed and delivered the same to the plaintiff for a valuable 232 bbadbury's lawyers' manual Complaint; Action on Check; Payee Against Maker consideration and the plaintiff is now the owner and holder of said note. III. That at the maturity of said note the same was duly pre- sented for payment at the place where the same was by its terms made payable and demand for the payment was duly made and refused and no part thereof has been paid. IV. That thereupon said note was duly protested for non- payment and notice of said demand, nonpayment and protest was duly given to the defendant, E. F., and demand has been made upon said E. F. for the payment of said note and the said E. F. has refused and failed to pay the same. V. That the protest fees on said note amounted to the simi of dollars, no part of which has been paid. Wherefore, plaintiff demands judgment against the de- fendant for the siun of dollars, with interest from the day of , 19 > with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, [Verification.] New York City. FORM NO. 149 Complaint; Action on Check; Payee against Maker New York Supreme Court, New York Coimty. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges: I. That on the day of , 19 , the de- fendant duly made and delivered to the plaintiff, for a valuable consideration, a check in words and figures, as follows: "No. 106. New York, ,19 . COMPLAINTS 233 Complaint; Action Against Endorser of Check "The Chase National Bank "Pay to the order of Abel Bostwick, five hundred dollars. "$500. Charles Darwin." II. That said check was duly endorsed by the plaintiff and was duly presented to said Chase National Bank for payment on the day of , 19 , and said Chase National Bank refused payment and no part of said five hun- dred ($500) dollars has been paid. III. That on the day of , 19 , notice of the said presentation of said check and the refusal of the said Chase National Bank to pay the same was duly given to the said Charles Darwin and demand was then and there made of said Charles Darwin for said sum of five hundred dollars and said defendant has failed and refused to pay the same or any part thereof and no part thereof has been paid and the plaintiff is still the owner and holder of said check. WHEREroRE, plaintiff demands judgment against the de- fendant for the simi of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, [Verification.] New York City. FORM NO. 150 Complaint; Action against Endorser of Check New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. The plaintiff, complaining of the defendant, alleges : I. That on the day of , 19 , the de- 234 Bradbury's lawyers* manual Complaint; Action Against Endorser of Check fendant Charles Darwin, duly endorsed and delivered to the plaintiff, for a valuable consideration, a check dated the day of , 19 , drawn by Enos Field, on the Chase National Bank, directing said bank to pay the defendant, Charles Darwin, the sum of five hundred ($500) dollars; that the plaintiff duly endorsed said check and on the day of , 19 , duly presented the same to the said Chase National Bank, on which the said check was drawn, and payment was then and there demanded; that said Chase Na- tional Bank refused payment thereof; that thereupon said check was duly protested for nonpayment and notice of such demand, refusal and protest was duly given to the defendant, Charles Darwin, and demand was duly made on said Charles Darwin for the payment of said simi and no part thereof has been paid and the plaintiff is still the owner and holder of said check. II. That the protest fees on the protest of said check amounted to the sum of dollars which sum has been duly demanded but has not been paid. Wherefore, plaintiff demands judgment against the de- fendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] COMPLAINTS 235 Complaint; Account Stated FORM NO. 151 Complaint; Account Stated ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges : I. That prior to the day of , 19 , the plaintiff and the defendant had had dealings together and on the last mentioned date the plaintiff and the defendant made and duly examined their several claims and had a settlement of their several accounts and thereupon stated the account aris- ing out of the dealings theretofore had between them and a balance was thereupon struck, by which account it appeared that there was due and owing to the plaintiff from the defend- ant the sum of doUars, which said sum the defend- ant promised to pay. That demand has been made for said sum of dollars and no part thereof has been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of , dollars, with interest from the day of , 19 . Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] 1 As to when an action wiU be sustained on an account stated, see Lockwood v. Thome, 18 N. Y. 285 rev'g 24 Barb. 391; Spellman v. Muehlfeld, 166 N. Y. 245; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Schutz v. Moretle, 146 N. Y. 236 Bradbury's lawyers' manual Complaint; Money had and Received FORM NO. 152 Complaint; Money had and Received ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges: I. That on or about the day of , 19 , the defendant above named received, for the use and benefit of the plaintiff herein, the sum of dollars, said sum being received by the defendant from E. F. II. That demand has been duly made to the plaintiff for said sum and no part thereof has been paid. WHEKEroRE the plaintiff demands judgment against the defendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] 137, rev'g 81 Hun, 518; Volkening v. DeGraaff, 81 N. Y. 268; Rand v. Whipple, 71 App. Div. 62; 75 Supp. 740; Haight v. Haight & Freese Co., 112 App. Div. 475; 98 Supp. 471; aff'd 190 N. Y. 540; Boyce v. Walker, 130 App. Div. 305; 114 Supp. 166; Barlow v. Piatt, 133 App. Div. 364; 117 Supp. 235; Delabarre v. McAlbin, 101 App. Div. 468; 92 Supp. 129. ' The above form of complaint for money had and received for the benefit of the plaintiff would be good in almost any action of this nature. It is possible and in fact probable that the court would order a bill of particulars of the special moneys, or of any other facts in relation to their receipt by the defendant, should a motion therefor be made, in many instances. The above form is sufficient, however, as a complaint to raise an issue in such a case. COMPLAINTS 237 Complaint; Action for Rent FORM NO. 153 Complaint ; Action for Rent City Court of the City of New York. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges: I. That on the day of , 19 , the plain- tiff, as Landlord, and the defendant, as Tenant, entered into a lease, in writing, of the apartment on the seventh floor of the building at No. , Street, in the Borough of Man- hattan, City of New York, for use as a private residence, for the term of years, beginning on the day of , 19 , and ending on the day of ,19 , at the yearly rent of dollars, payable in advance in equal monthly installments of the sum of dollars. II. That the defendant duly went into possession of said premises on or before the date mentioned in said lease and has ever since occupied the same, pm-suant to the terms of said lease. and III. That the defendant has failed to pay the monthly in- stallments of rent due on the first days of and no part of said sirni has been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of dollars, with interest from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, [Verification.] New York City. 238 Bradbury's lawyers' manual Action by Administratrix for Damages for Death of Plaintiff's Intestate FORM NO. 154 Complaint; Negligence; Action by Administratrix for Damages for Death of Plaintiff's Intestate New York Supreme Court, New York County. A. B., as Administratrix of the Goods, Chattels and Credits that were of C. B., Deceased, Plaintiff, against The Interborotjgh Rapid Transit Company. Defendant. The plaintiff, complaining of the defendant, alleges: First: That at all the times hereinafter mentioned the defendant was and now is a domestic transportation corporation and was a common carrier of passengers for hire and operated a railroad over, on and underneath certain pubMc streets in the City and County of New York. Second: That on or about the day of , 19 , C. D., who was a resident of the City, County and State of New York died intestate and thereafter and on or about the day of ; 19 , letters of administration upon the estate of said CD. were duly issued to the plaintiff by the Surrogate of New York County, that she duly qualified as such administratrix and is still such administratrix. Third: That said CD. left him surviving the plaintiff, his widow, and four children of the ages respectively of two, five, seven and nine years. Fourth: That the defendant maintains a station at Four- teenth Street, in the Borough of Manhattan, City, County and State of New York, for both local and express trains. That said station at Fourteenth Street, consists of two island platforms, COMPLAINTS 239 Action by Administratrix for Damages for Death of Plaintiff's Intestate at which many thousands of passengers each day enter and aUght froni the trains of the defendant. That during certain portions of the day said platforms are almost constantly crowded with passengers, and many thousands of such pas- sengers ahght from local trains and cross the platform and enter express trains ; or aUght from express trains and cross the platform and enter local trains. During such times there is much crowding and confusion and intermingling of passengers on said platforms. Said platforms are so constructed that they are on a curve in the tracks on which the cars of the defendant are operated and at the places where passengers alight from said cars, or enter said cars, on certain portions of said plat- form, there is a considerable space between the platform and the platform of the car, or between the middle of the car where there is a door and the platform on which the passengers pass to and from, by said middle door. That during the crowding and confusion attendant upon the persons crossing from ex- press trains to local trains and from local trains to express trains at the same time, it is impossible for passengers to see the space between the platform and the car or between the door in the center of the car and the platform, and these spaces are of varying widths at different portions of the platform. The conditions hereinbefore specified are, and have been for a mmaber of years well known to the defendant. Fifth: The construction of the defendant's platforms at the Fourteenth Street station are imperfect, defective and danger- ous, and constitute a trap to the persons who are passengers on the defendant railroad. It is so dangerous that many persons are seriously injured every month by stepping into the space between said car and said platform, and a large mmiber of persons were so injured each month prior to the day of , 19 , and have continued to be so injured each month since the day of , 19 . Although the defendant well knew of the dangerous condition and struc- tiu-al defect of said platform, as hereinbefore stated, for many months prior to the day of , 19 , it continued to use the same, and has taken no steps to change 240 Bradbury's lawyers' manual Action by Administratrix for Damages for Death of Plaintiff's Intestate such structural defect in spite of the fact that many persons were so injured each month. Sixth: On the day of , 19 , the plain- tiff's intestate purchased a ticket and became and was a passenger on one of defendant's trains and was passing from one train, to another across the island platform at Fourteenth Street, hereinbefore described, during a time when many per- sons were rushing and crowding across said platform, going in both directions from express trains to local trains and from local trains to express trains, and by reason of the structural de- fect in said platform, and by reason of the failure of the de- fendant to properly control the crowd of passengers on the said platform under the circumstances stated herein and solely by reason of the negligence of the defendant, and without any neghgence on his part, the plaintiff's intestate stepped in the space between the defendant's car and the platform at said Foiu-teenth Street station, and fell through said space to the tracks below, thereby causing his death. That at the time of said fall there was no person at or near said space to warn passengers of the danger of falUng therein, and no warning of any kind given to this plaintiff's intestate of such danger. Seventh: That by reason of all the above facts herein set forth, and solely by reason of the neghgence of the defendant, and without any negligence on the part of plaintiff's intestate, the plaintiff has been damaged in the sum of dol- lars, no part of which has been paid. Wherefore, plaintiff demands judgment against the de- fendant in the sum of dollars with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. * [Verification.] COMPLAINTS 241 Complaint; Negligence; Municipal Corporation FORM NO. 155 Complaint; Negligence; Municipal Corporation; Failure to Properly Maintain Highways; Plaintiff's Intestate Precipitated down Unprotected Embankment while Riding in Automobile ^ New York Supreme Court, Rensselaer County. Chakles W. Calkins, as Adminis- trator of all and singular the Goods, Chattels and Credits that were of Agnes J. Calkins, Deceased. Plaintiff, against The Town of Camden, Defendant. The plaintiff complaining of the defendant, alleges : I. Upon information and behef that the defendant is and at all the times hereinafter mentioned was a municipal corpora- tion, duly created, organized and existing under and by virtue of the laws of the State of New York, and that at all the times hereinafter mentioned and for many years prior thereto there was and still is a public highway in the said town of Camden, running between the village of Westdale therein and the vil- lage of WilUamstown in the county of Oswego, the same being known as the main pubUc highway connecting said villages. II. That on the eighteenth day of August, 1910, while the said Agnes J. Calkins was lawfully and carefully riding in an automobile, driven by and in charge of another, on and along said pubUc highway and within the said town of Camden, and when the said automobile reached a point therein, near or op- posite to the property known as that of one Michael Kelly and at or about a curve in the said highway on one side of which 1 From Calkins v. Town of Camden, 208 N. Y. 622, aff'g without opinion 152 App. Div. 953; 137 Supp. 1113, in which a judgment in favor of the plaintiff was affirmed. 242 Bradbury's lawyers' manual Complaint; Negligence; Municipal Corporation there existed at the time and for a long time prior thereto a steep decUvity or embankment and about one-half mile on the Westdale side of the Gifford Brothers' residence along said highway, the said automobile in which the said Agnes J. Calkins was' riding as aforesaid was precipitated down said declivity or embankment, and by reason thereof the said Agnes J. Calkins received injuries which caused her death on the same day. That the said automobile at the time and place aforesaid, went down said declivity or embankment, causing the death of the said intestate, by reason of defects existing in the said highway, because of the neglect, carelessness and negli- gence of the superintendent of highways of the said defendant. The plaintiff further alleges upon information and behef that it was the duty of the said superintendent of highways, among other things, to keep, or cause to be kept, the highways within the said town of Camden in repair and free from all defects and obstructions, and to maintain the same in reasonably safe condition for public travel thereover, and to inspect them from time to time to discover and to- properly repair all defects therein, and to cause all weeds, briers, brush, trees and other ob- structions to be removed from the bounds of the said highways, at stated periods in each year, and to perform other duties respecting said highways, including those duties heretofore exercised or performed by the commissioners of highways, which included also the duty of erecting and maintaining proper barriers and safeguards along the embankment where the said accident which resulted in the death of said Agnes J. Calkins occurred. The said plaintiff further alleges upon information and belief that the said superintendent of highways of the de- fendant negligently omitted to perform any of said duties in respect to said highway along which said accident occurred, and at and about the place thereof. The plaintiff further alleges upon information and belief that the said superintendent of highways was negligent be- cause the said highway at and about the place of said accident was narrow and had a steep and dangerous dechvity or em- bankment on one side thereof, and, notwithstanding that. COMPLAINTS 243 Complaint; Negligence; Municipal Corporation the said superintendent of highways of the defendant and his predecessor in office negUgently and carelessly omitted to erect or cause to be erected and maintained any barrier or safeguard along the said highway to prevent vehicles, includ- ing automobiles, from going down said embankment and to protect travelers thereon from the dangers of said embankment or declivity, or to give to the travelers on said highway notice of the existence of said embankment or declivity, or of the dangers surrounding the said highway at and about the place of the accident. The plaintiff further alleges upon information and beUef that the said superintendent of highways of the defendant was neghgent, because at the time of said accident and for a long time prior thereto he negligently permitted trees, bushes, briers, weeds, and long grass to grow and remain upon and along the sides of said highway and near the beaten path thereof and to overhang the same at and around the place of said ac- cident, thereby preventing travelers on and along said high- way and in the exercise of ordinary care from being able to discover the existence of said steep declivity or embankment, or to see that the same was so dangerously near the beaten path of the said highway. The said plaintiff further alleges upon information and behef that the said superintendent of highways was also negligent, because he did not remove the said trees, bushes, briers, brush, weeds and long grass from the sides of said highway in the vicinity of the said accident prior to the happening thereof. The said plaintiff further alleges upon information and belief that the said superintendent of highways of the defendant was also neghgent, because he did not widen the said highway at and about the place of accident prior to its happening, and he was also neghgent, because he permitted, for a long time prior to the said accident, the same embankment, which consisted largely of loose and friable earth, to extend so near the beaten track in said highway and to drop or descend so abruptly there- from, and thereby making said highway extremely dangerous to travelers thereover who did not know of the existence of 244 Bradbury's lawyers' manual Complaint; Negligence; Municipal Corporation said steep declivity or embankment which was hidden from the view of travelers in vehicles, including automobiles, on and along said highway at and in the vicinity of the place of said accident, and of which steep decUvity or embankment and its juxtaposition to the beaten path of the said highway the said superintendent of highways of the said defendant negligently omitted to give notice to the travelers on said highway by means of any barrier, sign or safeguard. The plaintiff further alleges upon information and behef that the said superintendent of highways of the defendant was also negligent, because he permitted to exist and remain in the said highway in the vicinity of the said accident at the time thereof and for a long time prior thereto, large holes, deep de- pressions and deep and long ruts, all dangerous to the travel on said highway and all of which contributed to death of the plaio- tiff's said intestate. III. The plaintiff further alleges upon information and be- hef that all of the said defects existed in the said highway at and about the place aforesaid for a long time prior to the eight- eenth day of August, 1910, because of the neghgence of the superintendent of highways of the defendant and of his pred- ecessor in office, and to the knowledge of each one, and that each one had notice that other accidents to travelers on said highway had been caused prior to the eighteenth day of Au- gust, 1910, by the same conditions that existed at and near the place of the said accident in which the said intestate met her death; notwithstanding that the said superintendent of highways of the defendant neglected to do anything to repair the said highway or to make the same reasonably safe for the pubUc travel thereover, and the fact is that the said superin- tendent of highways of the defendant had, or, in the exercise of reasonable dihgence, was able in his official capacity to have obtained, sufficient funds to remedy the said defects and make said highway reasonably safe for the pubhc travel thereon prior to the eighteenth day of August, 1910, and the death of Agnes J. Calkins was caused solely by the negligence of the said defendant's superintendent of highways and his predeces- COMPLAINTS 245 Complaint; Negligence; Municipal Corporation sor in office, and she was free from any contributory negli- gence. IV. That on the eighteenth day of August, 1910, the said Agnes J. Calkins, a resident of the city and county of Rens- selaer, State of New York, died intestate, leaving surviving her husband, the said Charles W. Calkins, Roland N. Calkins, Elvira B. Calkins and Douglas A. Calkins, her children, aged respectively sixteen, fourteen and eight years, and constituting her next of kin. That by reason of her death, caused as afore- said, her said husband and next of kin have suffered damages in the sum of twenty-five thousand ($25,000) dollars. That on the tenth day of October, 1910, the said husband the plaintiff herein was, by the Surrogate's Court of Rensselaer County, lawfully and duly appointed administrator of all and singular the goods, chattels and credits which were of the said Agnes J. Calkins, deceased, and that he duly quaUfied as such and is now acting as such administrator. V. The plaintiff further alleges that on October twenty- ninth, 1910, and more than fifteen days before the commence- ment of this action and within six months after the cause of action accrued, he duly presented to the supervisor of the said defendant a written verified statement of the cause of action herein, a copy of which statement is hereto annexed, marked "A,'-' and made a part of this complaint. Wherefore, the plaintiff demands judgment against the defendant for the smn of twenty-five thousand dollars (125,000) with costs. . Patrick C. Dugan, Attorney for Plaintiff, 598 Broadway, Albany, N. Y. [Verification.] 246 Bradbury's lawyers' manual Complaint; Negligence; Municipal Corporation EXHIBIT "A" In the Matter of the Claim of Chables W. Calkins, as Adminis- trator of all and singular the Goods, Chattels and Credits which were of Agnes J. Calkins, late of the City of Rensselaer in the County of Rensselaer and State of New York, Deceased, against The Town of Camden in Oneida County. To Mr. George Skinner, Supervisor of the said Town of Camden. Sir: Take notice that the undersigned claims damages in the sum of twenty-five thousand (125,000) dollars against the said town of Camden, sustained by the husband and next of kin of the said Agnes J. Calkins, deceased, and as such ad- ministrator aforesaid, and pursuant to section 74 of the High- way Law (Chapter 25 of the Consolidated Laws of the State of New York), he hereby makes a verified statement of the cause of action in his favor as such administrator against the said town of Camden and presents the same to you as the Supervisor of said town of Camden, viz. : On the 18th day of August, 1910, while the said Agnes J. Calkins was lawfully and carefully riding in an automobile driven by and in charge of another, on and along what is known as the public highway between the village of Westdale in the said town of Camden and the village of Williamstown in the town of Williamstown in the County of Oswego, being the main highway connecting said villages, and when the said automobile in which she was riding reached a point in said highway near the property said to belong to one Michael COMPLAINTS 247 Complaint; Negligence; Municipal Corporation Kelly in the said town of Camden and upon a curve in the said highway and where there existed a steep declivity upon the side of said highway and which is about one-half mile on the Westdale side of the Gifford Brothers' residence along said highway, and, without any fault or want of care on the part of the said Agnes J. Calkins, the said automobile in which she was riding was precipitated down said declivity or embank- ment (and by reason thereof the said Agnes J. Calkins re- ceived injm-ies which caused her death on the day aforesaid. That the said automobile on the occasion aforesaid left the said highway and went down said embankment which had a steep downward slope) and the said intestate sustained in- juries which produced her death by reason of defects existing in the said highway at and about the place therein where said accident occurred, because of the neglect of the Superintendent of Highways of said town of Camden, and consisted of the following, namely: That the said highway was narrow and had a steep and dangerous declivity or embankment on one side thereof, and there was no barrier or safeguard thereon; that trees, bushes, weeds and long grass were permitted to grow and remain upon the sides of said highway and close to the beaten path thereof; that the said embankment consisted of loose and friable earth, and was by said trees, bushes, weeds and grass hidden from the view of travelers along the said highway in the direction which said automobile was going at the time; that large holes, deep depressions and deep and dan- gerous ruts existed in said highway and on the said embank- ment side thereof. Said claimant further states on information and belief that the said defects and each one thereof existed in and along said highway prior to the accident which resulted in the death of said intestate, because of the negligence of the Superintendent of Highways of said town and the officer charged with the duty of caring for, superintending and repairing and maintaining in proper condition the highways of said town. That the said Agnes J. Calkins, left her surviving the said Charles W. Calkins, her husband; Roland N. Calkins, Elvira 248 beadbuey's lawyees' manual Complaint; Negligence; Municipal Corporation B. Calkins and Douglas A. Calkins, her children, and con- stituting her next of kin. That on the 10th day of October, 1910, the undersigned was, by the Surrogate's Court of Rensselaer County, duly appointed Administrator of all and singular the goods, chattels and credits which were of the said Agnes J. Calkins, deceased, and that he duly quahfied as such and is now acting as such Administrator. Dated, Rensselaer, N. Y., October 25th, 1910. Chaeles W. Calkins, as Administrator of all and singular the goods, chattels and credits which were of Agnes J. Calkins, late of the City of Rensselaer, N. Y., deceased. No. 13 Behnore Place, Rensselaer, N. Y. State of New Yoek 1 County of Rensselaee J Charles W. Calkins, being duly sworn, deposes and says that the foregoing notice is true of his own knowledge except as to the matters which are therein stated to be alleged on in- formation and behef and as to such matters he believes it to be true. Charles W. Calkins. Sworn to before me this day of , 19 . {Signature and title of officer.) COMPLAINTS 249 Complaint; Hand Bag Checked in Parcel Room of Railroad Station FORM NO. 156 Complaint; BaUtnent; Hand Bag Checked in Parcel Room of Rail- road Station ; Clause in Check Limiting Liability of Company ^ County Court, County of Schenectady. William J. Healy, Plaintiff, against The New York Central and Hud- son River Railroad Company, Defendant. The plaintiff complaining of the defendant alleges : First : That the plaintiff is a resident of the City and County of Schenectady, N. Y. Second: That the defendant is a railroad corporation or- ganized under and pursuant to the Laws of the State of New York and that the main line of said defendant passes through the county of Schenectady. Third: That heretofore and on or about the 4th day of November, 1911, the plaintiff placed and checked a hand bag and contents thereof, of which he was the owner, at the parcel room of said defendant at its station in the City of Albany, N. Y., and was given therefor a dupUcate coupon number 73815. Fourth : That thereafter and on said date plaintiff presented said coupon at said parcel room and demanded his hand bag and contents from said defendant and that said defendant re- fused to return said bag and contents to plaintiff. Fifth: That said hand bag and the contents thereof were reasonably worth the sum of seventy dollars and ten cents, and that plaintiff has demanded of said defendant the return 1 From Healy v. A^. Y. Central, etc., R. Co., 153 App. Div. 516; 138 Supp. 287; aff'd without opinion 210 N. Y. 646. 250 Bradbury's lawyers' manual Complaint; Fire Insurance Policy of said hand bag and its contents or the said sum of seventy dollars and ten cents, and that defendant has refused and neg- lected and refuses and neglects either to return to said plaintiff the said hand bag and contents or in lieu thereof said sum of seventy dollars and ten cents, and has converted the same to its own use. Wherefore, plaintiff demands judgment against the de- fendant for the sum of seventy dollars and ten cents, with interest thereon from the 4th day of November, 1911, besides the costs of this action. Henry S. Baehler, Attorney for Plaintiff, No. 432 State Street, Schenectady, N. Y. [Verification.] FORM NO. 157 Complaint; Fire Insurance Policy ^ New York Supreme Court, Yates County. Frank Donley, Plaintiff, against Glens Falls Insurance Company, Defendant. The plaintiff, complaining of the defendant, alleges: I. That the defendant is and at aU the times hereinafter mentioned was a domestic fire insurance corporation. II. That at all the times hereinafter mentioned the" plain- tiff was and now is in possession of and the owner of and seized in fee, of certain real estate in the town of Italy, Yates County, • Adapted from Donley v. Glens Falls Insiirance Co., 196 N. Y. 501, aff'g without opinion 126 App. Div. 922, no opinion, in which a judgment in favor of the plaintilT was affirmed. The affirmance in the Court of Appeals was on the authority of Donley v. Gle^is Falls Insuratice Co., 184 N. Y. 107. COMPLAINTS 251 Complaint; Fire Insurance Policy New York, known as the Press Bassett Farm and all the build- ings and improvements hereinafter mentioned. III. That on or about the day of , 19 , the defendant herein duly issued its policy of insurance No. 1213, being a standard form of fire insurance policy to the plaintiff herein, wherein and whereby the defendant, in consideration of the sum of dollars, premiima paid by the plaintiff to the defendant, did insure said plaintiff against loss or damage by fire in the amount not exceeding dollars for the term of years, from the day of ,19 , as follows: The sum of dollars ,on the two-story shingle roof, frame building with additions, foundations and all permanent fixtures while occupied as a private residence. The sum of dollars on bam, No. 1, on diagram in said pohcy, including sheds and additions attached. The sum of dollars on farm produce and feed while therein and in stacks within one h\mdred feet of said bam. The sum of dollars on farming tools and uten- sils, including mower and reaper. The sum of dollars on wagons, carriages, sleighs, harnesses, with horse and carriage equipments. The sum of dollars on pine, shingles and lumber in said bam. Making a total of dollars, all situated on the farm owned by the plaintiff while occupied by a tenant at the place aforesaid. And the defendant in and by said poUcy of insurance did promise and agree to make good unto the said Frank Donley for such loss and damage, not exceeding in amount the sum in- sm-ed as aforesaid, as should happen by fire as therein and herein specified, during the term of years from the day of , 19 , noon, to the day of ,19 , noon, such loss to be paid within sixty days after notice and proof of loss should be furnished to the defend- ant. 252. Bradbury's lawyers' manual Complaint; Fire Insurance Policy IV. That on or about the day of , 19 , and while said policy of insurance was in full force and effect, Barn No. 1 and the farm produce, farm tools, wagons, carriages, sleighs, harnesses with carriage and horse equip- ments and the pine, shingles and lumber in said bam were totally destroyed by said fire. That said fire did not occur by any of the causes excepted by said poHcy. That the true and actual value of Bam No. 1 so insxxred at the time of the fire aforesaid, was at least the sum of doUars; that the true and actual cash value of the contents of said bam so insured at the time of the destruction thereof was at least the sum of dollars; that the total loss sustained by the plaintiff by reason of such destmction as aforesaid was more than the smn of doUars, the amount of said pohcy in force at the time of such destruction. V. That at the time said pohcy of insurance was issued as aforesaid and up to and including the time of such loss this plaintiff was the true and lawful owner of the personal property covered and insuted in and by said pohcy of insm-ance, and no other person or party had any interest therein, or any part thereof. VI. That there was no other insurance upon said property or any portion thereof at the time of such destruction. VII. That heretofore and on or about the day of ,19 , due notice was given to the defendant of said fire and said loss, and on or about the day of ,19 , the plaintiff delivered to the defendant due notice and proof of loss of said loss as aforesaid, in accord- ance with the terms and conditions of said policy and the plain- tiff has fully and duly performed all the conditions of said pohcy on his part to be performed. VIII. That more than sixty days have elapsed since the dehvery to the defendant of said proof of loss and demand has been made upon the defendant for the sum of dollars for such loss as aforesaid, and no part thereof has been paid. Wherefore, plaintiff demands judgment against the defend- COMPLAINTS 25'd Death Claim on Accident Insurance Policy by Beneficiary Named in Policy ant for the sixm of dollars, with interest thereon from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, Penn Yan, [Verification.] New York. FORM NO. 158 Complaint on Death Claim on Accident Insurance Policy by Bene- ficiary Named in Policy New York Supreme Court, Chemung County. Mary Brown, Plaintiff, against United States Casualty Company, Defendant. The plaintiff, complaining-of the defendant, alleges : I. That the defendant is and was at all the times hereinafter mentioned a domestic insurance corporation. Or, [That the defendant is and was at all the times hereinafter mentioned a foreign insurance corporation, duly organized and existing under the laws of the State of (Illinois) , (or under the laws of Great Britain) , and has a place for the regular trans- action of business in the (Borough of Manhattan, in the City, County and State of New York) and was duly authorized to issue the policy hereinafter described.] II. That on or about the day of , 19 , the defendant, for a good and valuable consideration, executed and dehvered to John Brown, who was the husband of this plaintiff, a policy of insurance wherein and whereby the said defendant did insiu"e the said John Brown for the term of one year from twelve o'clock noon standard time, on the day of , 19 , and did thereby and therein promise and agree that in the event of bodily injuries affected directly 254 Bradbury's lawyers' manual Death Claim on Accident Insurance Policy by Beneficiary Named in Policy and independently of all other causes, through external, violent and accidental means resulting in the death of said John Brown, to pay the principal sum of five thousand ($5,000) dollars to. the beneficiary named therein, to wit: to Mary Brown, the plaintiff herein. III. That it was further provided in said poUcy of insurance that for each consecutive full year's renewal of said policy, if the premiiun should be paid annually in advance, there should be added to the principal siun the sum of ten per centiun of said principal sum until there were five full annual accumxila- tions added to said policy. IV. That said poUcy of accident insurance was duly renewed by the payment of premiums annually, in advance, for four consecutive years, to wit : On the day of , 19 , the day of , 19 , the day of , 19 , and the day of , 19 , whereby the sum of five hundred ($500) dollars for each of said years was added to the principal smn of said pohcy, making the total principal of said policy the sum of seven thousand ($7,000) dollars, and by reason of said renewals the said pohcy was and remained in full force and effect at the date of the death of John Brown, as hereinafter mentioned. V. That on or about the day of , 19 , the said John Brown received bodily injuries effected solely, directly and independently of all other causes, through external, violent and external means which said injmdes directly and independent of all other causes, resulted in the death of said John Brown within ninety days ^ of the date of the said accident, to wit, on the day of , 19 . VI. That the plaintiff, the beneficiary named in said poUcy, ' Some accident insurance policies require that the death shall result within a certain specified time after the injuries, in order that a death claim may be made; and not infrequently they have an alternative provision extending the time within which the death must be caused subsequently to the injury, under varying conditions. One of these conditions is that if the insured is totally disabled after the accident and continues to be totally disabled up to the time of his death, that then it is not essential that the death should occur within the short period of ninrty days, which is usually fixed, but may occur within a much longer period. COMPLAINTS 255 Death Claim on Accident Insurance Policy by Beneficiary Named in Policy on or about the day of , 19 , gave due notice in writing to the defendant at its home office in of the said accident, and on the day of , 19 , gave like notice to the defendant of the death of the said John Brown and within months of the date of the death of the said John Brown, and on or about the day of ,19 , the plaintiff duly sent to the defendant written proof of the said accident and death on blanks furnished by the defendant and the plaintiff has duly performed all the conditions of said pohcy on her part to be performed.^ VII. That more than three months ^ have elapsed since the receipt by the defendant of the said proofs of said accident and death of said John Brown at the home office of the defendant. VIII. That demand has been duly made for the pajonent of the said simi of $7,000 which became due to the plaintiff on the day of , 19 , and no part thereof has been paid. Wheeefore, the plaintiff demands judgment against the defendant for the sum of dollars, with interest from the , day of , 19 , with costs. Ely Franklin, Attorney for Plaintiff, No. 31 Nassau Street, Borough of Manhattan, [Verification.] New York City. If, therefore, in a particular case, it appears that such a provision of an accident policy applies, then the portion of the complaint should be made to read ac- cordingly. ' If the plaintiff has not performed all the conditions of the policy, such aa giving notice of the accident, notice of the death or filing the proofs of loss within the time provided for in the policy and it is claimed that the defendant has-waived these provisions of the policy, there must be set up the facts which it is alleged constitute said waiver. It is not sufficient to merely allege that the defendant has duly waived these provisions. See Sasse v. Order of United Commercial Travelers, 168 App. Div. 746; 154 Supp. 558. ^ Accident insurance poHcies very frequently contain provisions that actions cannot be brought thereon until a certain period of time has elapsed after proofs of loss have been filed with the company. It is necessary, therefore, to allege in the complaint that this time has elapsed since the proofs of loss were filed in ac- cordance with the terms of the policy. 256 Bradbury's lawyers' manual Complaint; Fidelity Insurance Policy FORM NO. 159 Complaint; Fidelity Insurance Policy ^ New York Supreme Court, Orange County. J. W. Matthews & Co., Plaintiff, against The Employers' Liability Assur- ance Corporation, Limited, Defendant. The plaintiff, complaining of the defendant, alleges: First: That the plaintiff is and at all the times hereinafter mentioned was a domestic corporation, carrying on business as wholesale dealers in groceries and other merchandise. Second: That the defendant above named is and at all the times hereinafter mentioned was a foreign insurance corporation created under the laws of the Kingdom of Great Britain, and having its chief office in the United States, in the City of Bos- ton, in the State of Massachusetts, and said defendant was duly authorized to issue the policy of fidelity insurance to which reference is hereinafter made. Third: That prior to the day of , 19 , one M. F. C, entered into the employ of the above-named plaintiff as travehng salesman, to sell goods, wares and mer- chandise for and on account of the plaintiff and to collect mon- eys due and owing to the plaintiff imder an agreement whereby said M. F. C. was to fully account to the plaintiff for all goods sold and moneys collected by him and for all moneys and prop- erty of the plaintiff which might come into his hands or pos- session or under his control. Fourth: That on or about the day of , > Adapted from J. W. Matthews & Co. v. The Employers' Liability Assurance Corporation, Limited, 195 N. Y. 593; aff'g without opinion 127 App. Div. 195; 111 Supp. 76, in which a judgment in favor of the plaintiff was affirmed. COMPLAINTS 257 Complaint; Fidelity Insurance Policy 19 , the above-named defendant duly executed, for a valuable consideration, and delivered to the plaintiff its policy of fidelity insurance under seal, wherein and whereby said defendant bound itself in the sum of one thousand dollars to the plaintiff, to reinaburse the plaintiff for any pecuniary loss sustained by the plaintiff by the fraud or dishonesty of said M. F. C, which amounted to embezzlement or larceny, during the life of said policy or any renewal thereof and said policy was to remain in full force and virtue for the term of twelve calendar months from the day of , 19 , in consideration of a, premium of dollars, which was paid to the defendant by the plaintiff. Fifth: That by written extension duly executed by the de- fendant, in consideration of the payment of the further ,sum of dollars, which written extension was duly de- livered to the plaintiff by the defendant, the term of said poUcy was further extended for the term of one year from the day of - , 19 , and the plaintiff is still the ownerand holder of said policy and renewal thereof. Sixth: The plaintiff herein did entrust and deliver to said M.. F. Cv, in the course of his employment as traveling, sales- man and collector, as aforesaid, certain property consisting of goods, wares and merchandise and said M. F. C, did there- after and during the life of said policy and' renewal thereof, and while the same and both of them were in full force and effect and prior to the day of , 19 , collected certain moneys belonging to the plaintiff, which said moneys were collected by said M. F. C, within the scope of his employ- ment as such traveUng salesman and collector, for the plaintiff, and did embezde: and steal the same and did fraudulently and dishonestly collect and retain the same to his own use and that the amoimt ol money so collected and so retained by said M. F. C, as aforesaid, amounts to the sum of dollars. Seventh: That the plaintiff has duly complied with all the terms and conditions of said policy and the renewal thereof on its part and has duly made demand of the defendant for the 258 Bradbury's lawyers' manual Complaint; Fidelity Insurance Policy reimbursement to the plaintiff of the said sum of dollars, but no part thereof has been paid. Eighth : {If there has been any failure on the part of the plain- tiff to comply with any of the terms or conditions of the policy, such as the giving of notice, the keeping of books of account, or any other matter which the policy requires the plaintiff to do, and it is contended that such provisions or any of them have been waived, there should be therein stated a detailed statement of the facts which it is alleged constitute such waiver and instead of an allegation that the plaintiff has duly complied with all of the terms and conditions of the policy the allegation should be as follows:) That the plaintiff has duly complied with all the terms and conditions of said policy and the renewal thereof on his part to be performed, except that (here state the particular provisions of the policy which have not been performed by the plaintiff) and said failure of the plaintiff to perform such conditions have been duly waived by the defendant by reason of the following facts : (here state the actions of the defendant which it is claimed constitute the waiver. See the case of Sasse v. Order of United Commercial Travelers, 168 App. Div. 746; 154 Supp. 558.) ^ Ninth: That by reason of the foregoing the above-named plaintiff is indebted to the defendant in the simi of dollars, with interest thereon from the day of , 19, no part of which has been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of dollars, with interest thereon from the day of , 19 , with costs. Ely Franklin, Plaintiff's Attorney, No. 31 Nassau Street, Borough of Manhattan, [Verification.] New York City. ' If the policy contains a provision that no action shall be brought within a specified time after proofs of loss have been filed, insert the following: "That more than (sixty) days have elapsed since the Service on the defendant of proofs of loss," COMPLAINTS 259 Complaint; Action to Enforce Restrictive Covenant in Deed FORM NO. 160 Complaint; Action to Enforce Restrictive Covenant in Deed ^ New York Supreme Court, Kings County. Rosa Zipp, as Sole Surviving Execu- trix of and Trustee under the Last Will and Testament of George Zipp, Deceased, Plaintiff, against Frances E. Barker and Samuel P. Barker, as Surviving Executors of and Trustees imder the Last Will and Testament of Charles Barker, Deceased; John R. Weir and Frederick Weir, Defendants. The complaint of the plaintiff respectfully shows to this court : I. That' as plaintiff is informed and beUeves the defendants Weir reside in the City of Brooklyn, engaged in business as florists under the firm name and style of James Weir's Sons. II. That George Zipp being the owner of and in possession of the premises bounded and described as foUows; All those two certain lots, pieces or parcels of land situate, Ijong and being in the City of Brooklyn, County of Kings and State of New York, which two lots taken together are bounded and de- scribed as follows: Beginning at a point on the north-westerly side of Ehn Place, distant one hundred and twenty-two feet southerly from the south-westerly comer of Elm Place and Ful- ton Street; running thence north-westerly parallel with Livings- ton Street one himdred and forty-eight feet and eleven inches ' From Zipp v. Barker, 40 App. Div. 1; 57 Supp. 569; aff'd without opinion 166 N. Y. 621. 260 Bradbury's lawyers' manual Complaint; Action to Enforce Restrictive Covenant in Deed to land now or formerly of James Pearsall; thence north-east along said land to a point distant two hundred and twenty- five feet north-easterly from Livingston Street in a line drawn at right angles thereto;, thence south-easterly parallel . with Livingston Street one hundred and fifty-six feet six inches to Ehn Place; thence south-westerly along Ehn Place fifty feet to the point or place of beginning, died on or about May 18, 1891, leaving a Last Will and Testament which was duly ad- mitted to probate by the Surrogate of the County of Kings. on or about June 22d, 1891, and which Will is duly recprded in the office of said Surrogate. That in and by said Will said George Zipp devised all his real estate including the premises above described to executors and trustees as by reference to said Will will more fully appear. That John. Zipp, one of the executors and trustees named in said Will, died in or about December, 1894, and the plaintiff is now the sole surviving executrix of and trustee under said Will and as such is the sole owner of the said premises. Upon information and b^Uef that the following described premises were conveyed to one Charles Barker in fee: All that certain lot, piece or parcel of land situate, lying and being in the City of Brooklyn, aforesaid, bounded and described as follows: Beginning at the' south-westerly comer of Fulton Street and Ehn Place; running thence southerly along Ehn Place seventy-two feet; thenc6 westerly and parallel with Fulton Street twenty feet; thence northerly and parallel with Ehn Place seventy-two feet to Ful- ton Street, and thence easterly along Fulton Street to the place of beginning. That since said conveyance to said Charles Barker, the said Charles Barker died leaving a Last Will and Testament which was duly admitted to probate by the Siirro- gate of Kings County and which is recorded in the office of said Surrogate, by which Last Will and Testament, Rachel F. Barker, Frances E. Barker and Samuel P. Barker were, ap- pointed executors and trustees of the estate of said Charles • Barker, deceased, and the said premises bequeathed to said- executors and trustees; that the said Rachel Frances Barker has since died and the defendants Frances E. Barker and Sam- COMPLAINTS 261 Complaint; Action to Enforce Restrictive Covenant in Deed uel P. Barker accepted said trust and qualified and are' now the sole surviving executors and trustees under said Will, and that the title to said last described property is now vested 'in said Frances' E. Barkef and Samuel P. Barker as such- executors and trustees ■ That' the ' defendants Weir are tenants of said preinises and ia 'possession thereof. That the said property of the defendants and plaintiff herein above described is a part of the property owned by the heirs of Johannes Debevftise, which the said ^heirs did by a certain partition deed dated July 15th, 1835; divide into lots as more particularly appears here- inafter; and was acquired by the plaintiff and said defendants Barker by certain mesne conveyances from the said heirs and others; and the plaintiff is informed and believes that all of the said mesne conveyances by which the said deferidarit- Biarker acquired title to- her said property described the same as bounded by the inner or westerly line of the said courtyard space on Elm Place, formerly called Debevoise Place, and Con- veyed no title' to the said courtyard space. III. That about the year 1835 the heirs of Johannes Debe- voise filtered into a voluntary partition of certain lands and premises ' formerly the property of said Debevoise and exe- cuted a certain- deed of partition thereof, to which was annexed a map on which the said property was described and which showed several lots or parcels into which the said property was upon partition divided, numbered from one upwards con- secutively; and which showed also which of the said lots were conveyed by the said partition deed to the said several parties respectively. ' That the said partition deed and the map thereto annexed are recorded in the Kings County Clerk's (now Reg- ,' stein's) office in Liber 62 'of Conveyances, page 125, the said map appearing at pages 134 aind 135. That among other things delineated on the said map are found a strip of land lying on each side of the said Debevoise Place (now Elm Place) fifteen feet in width, showing the location of the coixrtyard mentioned in the said partition deed on Debevoise place. That among other provisions the said partition deed contains the following covenant, to wit: 262 Bradbury's lawyers' manual Complaint; Action to Enforce Restrictive Covenant in Deed "And the said parties to these presents for themselves re- spectively and their several and respective heirs, executors and administrators, and the said Samuel Augustus WiUoughby also for his said wife Margaretta and her heirs, executors and administrators, but neither of the said parties for or on behalf of the other party or either of them do hereby mutually cove- nant and agree to and with each other, and to and with the heirs and assigns of each other respectively, that no dwelling house, storehouse or other building or structure of any kiad or de- scription whatsoever (excepting fences) shall at any time or times hereafter be erected on any lot of groimd fronting on or otherwise adjoining Debevoise place. Bond street, northwardly of Schermerhom street or Hanover place (as the same re- spectively are laid down and designated on the aforesaid map) within the several distances hereinafter specified from the lines or sides of said places and street respectively, that is to say with regard to Debevoise place within fifteen feet, with re- gard to Bond street (northwardly of Schermerhom street) seven feet and six inches, and with regard to Hanover place ten feet, but on the contrary thereof that every building or structure of whatever kind or description which may be erected or placed on those parts of the said lots or groimds respectively, which front upon or otherwise adjoin th'e said places and street respectively northwardly of Schermerhom Street (ex- cepting fences) shall be erected or placed on the following lines, that is to say in the case of Debevoise Place on lines uniformly distant on each side forty feet from the center of said place; in the case of Bond Street northwardly of Schermerhom Street on lines imiformly distant (on each side) thirty-two feet and six inches from the center of said street and in the case of Han- over Place on fines uniformly distant on each side thirty-three feet and nine inches from the center of said place, leaving eighty feet and no more between the fines of the bmldings fronting upon or otherwise adjoining the opposite side of Debevoise Place sixty-five feet (and no more) between the lines of the buildings fronting upon or otherwise adjoining the opposite sides of Bond Street, northwardly of Schermerhom Street and COMPLAINTS 263 Complaint; Action to Enforce Restrictive Covenant in Deed sixty-seven feet and six inches (and no more) between the lines of the building fronting upon or otherwise adjoining the op- posite side of Hanover Place — but without any restriction upon the right to erect and maintain fences or other ornamental en- closures along the lines or sides of said places and streets re- spectively as such lines are respectively laid down and desig- nated on the said map, the intent and meaning in this respect of these presents and to the several and respective parties thereto being on the one hand to ensue an open space of the several widths above mentioned between the lines of the build- ings fronting on or adjoining the said streets and spaces re- spectively and the observance of uniformity in the location of such lines and on the other to leave the several owners and pro- prietors for the time being of the said lots and premises re- spectively at full liberty to enclose and improve as courtyards or ornamental grounds the several spaces between the fronts of such buildings and the lines of the said street and places respectively as laid down and designated on the said map and also that subject to the public easement above mentioned in regard to the several streets, places and alleys aforesaid and subject to the above covenant in regard to the location of build- ings fronting on or otherwise adjoining the street and places respectively mentioned in said covenant each of the said parties to these presents and the respective representatives of each of them (here follow the names of the said heirs) shall and may henceforth and forever well and peaceably, &c., &c." That all of the mesne conveyances by which the said plain- tiff and the said Barker acquired the said premises hereinbefore mentioned, respectively, referred to the said partition Map made a part of said partition deed as aforesaid, between the said heirs of the said Johannes Debevoise. IV. That plaintiff's predecessors in title have improved the premises first above mentioned, by erecting large buildings thereon at a large expense. That plaintiff's building on the Ehn Place (formerly Debevoise Place) side is erected in conform- ity with and upon the interior or westerly line for courtyards and buildings laid down on said partition map. 264 Bradbury's lawyers' manual Complaint; Action to Enforce Restrictive Covenant in Deed V. That the street or place mentioned in said covenant and other parts of this complaint as Debevoise Place is identically the same street or place mentioned in other parts of this com- plaint as Ehn Place, and is a pubhc street or highway, in the City of Brooklyn, having been used as such for upwards of fifty years. VI. That in or about the month of March, 1896, the said defendants erected and Constructed a one-story building on the courtyard strip in front of the Elm Place side of said premises lastly above describied and which said structure occupies the entire fifteen feet of width of said strip and at least three- quarters of its entire length. That said structure is a perma- nent one and is built strongly, the materials used being iron, wood and glass, the purpose for which it is to be used as plain- tiff is informed and beUeves being the maintenance, display and sale of plants and flowers of the defendants Weir. VII. That in or about November, 1880, while Sarah F. Barker was the owner of said premises and John E. Murray and James C. Piatt were in occupation thereof the erection of a structure somewhat similar to the one hereinbefore mentioned was commenced by said Barker, Murray and Piatt, and that thereupon plaintiff's testator George Zipp commenced an action in the City Court of Brooklyn,, entitled George Zipp, plaintiff, against John E. Murray and others, defendants, and ob- tained an injunction order therein restraining said defendants, their agents or attorneys, from continuing the erection of said structure and from in any way interfering with or obstructing the view and light from the property first above described. That said action has never been discontinued and is still pend- ing and said injunction is still in full force. VIII. That immediately upon learning of the actions of the defendants and of the erection of said structure and before the same was completed, this plaintiff instructed her attorneys to take steps at once to request the defendants to cease the erect- ing said structure and to remove same, and in case of their refusal so to do, to take such legal steps as might be necessary and proper to compel the removal thereof. COMPLAINTS 265 Complaint; Action to Enforce Restrictive Covenant in Deed That thereupon the said attorneys caused to be procured certified copies of the said order of injunction in the said action of George Zipp, plaintiff, against John E. Murray and others, defendants, and caused the same to be immediately served on James Weir, Jr., the person in charge of the business of the de- fendants Weir, and at the same time notifying him of the con- tents of said paper and demanded that the said structure be removed. That the defendant Weir informed the clerk of the attorney for the plaintiff herein that he would not desist from said work, but would complete same and fight the matter to the Court of Appeals. That after the service of said papers the said defendants hastened the said work by putting on extra men, and that the same is now completed. IX. That as before stated, the said structure is built upon the said strip of land as aforesaid devoted to courtyards on Ehn Place; and will have the effect to destroy the easement for courtyards at that place and destroy the uniform alignment of the buildings on the westerly side of Ehn Place, and to obstruct the view and light from Fulton Street to plaintiff's building and premises, the amount of which injury cannot be estimated in money. That as plaintiff is adAdsed and believes the filing and re- cording of said partition map and deed operated to dedicate the strip of land delineated on said partition map for court- yards to the pubHc and to all the grantees of the lots designated on said partition map and described in said partition deed, and that the erection and maintenance of the said structm-e upon the said strip of land so dedicated as an easement for court- yards is in violation of the right of the pubHc in said easement and a breach of the said covenant contained in the said parti- tion and in violation of the rights of all the grantees of the prop- erty shown on the said partition map and described in said partition deed. Wherefore, plaintiff demands judgment. I. That the defendants be perpetually enjoined and re- strained from maintaining and continuing any building or structure upon any part of the said strip of land fifteen feet 266 Bradbury's lawyers' manual Complaint; Action to Enforce Restrictive Covenant in Deed in width adjacent to and bounded upon the said westerly side of Ehn Place, as said strip is designated and laid down as an easement for courtyards in and upon said partition map and deed hereinbefore mentioned, and from diverting the said strip of land or any part thereof in any manner or by any means whatever from the purpose or purposes of a courtyard or coxirtyards. II. That diu-ing the pendency of this action the defendants be enjoined and restrained as above set forth. III. That the plaintiff recover the costs of this action. IV. That the plaintiff have such other and further judgment, order and reUef as may be just. HiRSH & Rasquin, Plaintiff's Attorneys, 4 and 5 Court Square, Brooklyn, N. Y. [Verification.] CHAPTER XIV ANSWERS INCLUDING COUNTERCLAIMS FORMS NO. PAGE NO. PAGE 161. Answer containing absolute 164. Answer alleging usury 272 denial; denials on informa- 165. Answer pleading statute of tion and belief and denials limitations 273 of knowledge or informa- 166. Answer; payment 274 tion sufficient to form a 167. Answer; discharge of defend- belief 267 ant in bankruptcy 274 162. Answer containing counter- 168. Answer; general answer by claim 270 infant submitting rights to 163. Answer; alleging accord and protection of court 275 satisfaction 271 FORM NO. 161 Answer Containing Absolute Denial; Denials on Information and Belief alid Denials of Knowledge or Information Sufficient to Form a Belief New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The defendant, answering the complaint of the plaintiff herein: I. Denies each and every allegation contained in said com- plaint. Or Denies the allegations contained in the paragraphs of the complaint marked "Third," "Fifth" and "Seventh"; Or Denies the allegations contained in the paragraphs of the 267 268 Bradbury's lawyers' manual Answer Containing Various Forms of Denials complaint marked "Second," "Fifth" and "Sixth," except that the defendant admits that no part of the sum mentioned in the complaint has been paid. {The better practice in making denials of allegations of a com- plaint is to deny, as above, all the allegations of the complaint and then follow it with the statement, except that the defendant admits certain specific allegations, which should be set forth. This is safer than attempting to deny specific allegations by setting them forth in full in the answer, particularly if the allegations are long and involved, because this may result in a denial, known as a negative pregnant, which will make the answer faulty. If, however, the denials are of specific allegations each allegation should be denied with the word "denied" before the allegation and no two allegations should be denied with the conjunction "and" between them. An adherence to this rule will save the pleader much trouble. It should be remembered also that a material fact alleged in a complaint is not controverted or put in issue by a statement in- consistent with the fact alleged from which the denial may be implied: See Paul Ruinart Champagne Co. v. Weidniqn, 2 Bradbury's Pl. & Pr. Rep. 13.) : , j . (Nor is it proper to deny facts in a qualified way. Thus in an answer to a complaint in an action for goods sold and delivered which admits the sale and delivery but denies the sale and de- livery "as therein alleged," is insufficient to raise an issue, and a motion by the plaintiff for judgment on the pleadings should be granted: Paul Ruinart Champagne Co. v. Weidman. See 2 Bradbury's Pl. & Pr. Rep. 13.) II. On information and behef denies all the allegations con- tained in the said complaint; Or On information and belief denies the allegations contained in the paragraphs of the complaint marked "Second," "Fifth" and "Seventh," except that he admits that no part of the sum mentioned in the complaint has been paid. {The denials on information and bdief should be essentially the same as those contained in the preceding paragraphs for ab- solute denials.) ANSWERS INCLUDING COUNTERCLAIMS 269 Answer Containing Various Forms of Denials III. Denies that he has any knowledge or information suf- ficient to form a behef as to any of the allegations contained in the paragraphs of the complaint marked "Third," "Fifth" and "Sixth."! Wherefore, the defendant demands judgment that the complaint be dismissed, with costs. Ely Franklin, Attorney for Defendant, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verification.] 1 For note on Denial of Knowledge or Information Sufficient to Form A Belief, see 1 BRADBtrRY's Pl. & Pr. Rep. 1. In an action against a coi'poration for goods sold and delivered, a denial of knowledge or information sufficient to form a belief as to the allegations of the complaint was held to be frivolous. Cape May Glass Co. v. Jetter Brewing Co., 3 Bradbury's Pl. & Pr. Rep. 33; Cerlian v. Bacon, 2 Bradbury's Pl. & Pr. Rep. 15 (and note). In an action against a guarantor for the price of goods sold and deHvered, where it is alleged in the complaint that the defendant executed and delivered a written guarantee for such payment and the defendant in his answer denies these allega- tions on information and belief, or that he has any knowledge or information sutKcient to form a belief, no material issue is raised and the plaintiff's motion for the judgment on the pleadings should be granted. Barrett Mfg. Co. v. Hobby, 2 Bradbury's Pl. & Pr. Rep. 17. In an action by a guarantor who has paid a note to recover from the prin- cipal on an implied promise of repayment, where the defendant admits that the note was made, executed and deHvered by him for a valuable consideration, that it was endorsed and guaranteed by the plaintiff, and that it was not paid at ma- turity by the defendant or any person in his behalf, a denial of knowledge or in- formation sufficient to form a behef as to the allegations that the plaintiff, as guarantor, has paid the note, is insufficient, especially where it appears from the answer that the defendant has knowledge that the bonds which were given as collateral for the note are in the possession of the plaintiff. Metz v. Hardesty, 3 Bradbury's Pl. &_Pr. Rep. 592. In an answer a defendant is not permitted to "show on information and behef" that he denies any knowledge or information to form a belief; he must either say or state that he denies any knowledge or information sufficient to form a belief. Zwerking v. Hartman Realty Co., 2 Bradbury's Pl. & Pr. Rep. 450. Where the complaint contains an allegation of notice to the defendants the denial of such notice should be direct and not on information and behef. Zwerling V. Hartman Realty Co., 2 Bradbury's Pl. & Pr. Rep. 450. 270 BRADBURY S LAWYERS MANUAL Answer Containing Counterclaim FORM NO. 162 Answer Containing Counterclaim ^ (Code Civ. Pro., §§ 500 to 512, inclusive) {Title Same as Complaint) The defendant answering the complaint of the plaintiff herein : First: {Insert denials as in Form No. 161, ante.) Second: {Insert special defenses as to Statute of Limitations, Statute of Frauds, etc.) Third : By way of counterclaim to the alleged cause of action set forth in the complaint, the defendant alleges that on or about the day of , 19 , the plaintiff in this action duly made his promissory note in writing wherein and whereby he promised to pay three months after the date of said note the sum of dollars to G. H., and that thereafter and on the same date, for a good and valuable con- sideration duly delivered said promissory note to G. H.; that thereafter and on the day of , 19 , and before the matiu-ity of said note and before the commence- ment of this action the said G. H. duly endorsed said promis- sory note and for a good and valuable consideration deUvered ' The Code of Civil Procedure contains elaborate provisions in relation to counterclaims, §§ 500 to 512, inclusive. It does not matter v^hether a counterclaim is called a counterclaim, a set-off or a recoupment. These are synonymous terms under the Code. But they must all be pleaded as counterclaims and must be stated specifically to be counter- claims. Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324; American Guild V. Damon, 186 N. Y. 360; Gihey v. Keen, No. 1, 104 App. Div. 427; 93 Supp. 783; aff'd 185 N. Y. 588; Pratt and Whitney Co. v. Pneumatic Tool Co., 50 App. Div. 369; 63 Supp. 1062; aff'd 166 N. Y. 588; Gaylmd v. Br(yum, No. 2, 128 App. Div. 343; 112 Supp. 748. For an exhaustive discussion of the subject of counterclaims see Bradbury's Rules of Pleading, page 1343. It is well settled that one tort cannot be pleaded as a counterclaim in an action for another tort when there is no connection between them. Kelly v. Webster, 1 Bradbury's Pl. & Pr. Rep. 605. ANSWERS INCLUDING COUNTERCLAIMS 271 Answer; Alleging Accord and Satisfaction the same to this defendant, who is the owner and holder thereof. That said promissory note became due prior to the commence- ment of this action and demand for the payment thereof has been duly made and no part of said promissory note has been paid. Wherefore, the defendant demands judgment that the complaint be dismissed and that the defendant have judgment against the plaintiff in the simi of dollars, with interest from the day of , 19 , with costs. - , - Ely Franklin, Defendant' s Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. [Verijication.] FORM NO. 163 Answer; Alleging Accord and Satisfaction New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant, The defendant, answering the complaint of the plaintiff herein : First: {Insert such denials as are necessary in accordance with Form No. 161, preceding.) Second: For a further and separate defense to the alleged cause of action stated in the complaint the defendant alleges that after the alleged cause of action stated in the complaint arose and before the beginning of this action the defendant paid to the plaintiff, on or about the day of 272 Bradbury's lawyers' manual Answer Alleging Usury , 19 , the sum of dollars, which was paid by this defendant and accepted by the above-named plaintiff in full accord and satisfaction of the alleged claim stated in the complaint and the said plaintiff thereupon duly executed and dehvered to this defendant a general release of said alleged claim, a copy of which is hereunto annexed and made part of this answer. WHEREroRE, defendant demands judgment that the com- plaint be dismissed, with costs. Ely Franklin, Attorney for Defenciant, No. 141 Broadway, Borough of Manhattan, [Verification.] New York City. FORM NO. 164 Answer Alleging Usury New York Supreme Court, New York Comity. ' ^^^^ A. B., Plamtiff, against C. D., Defendant. The defendant answering the complaint of the plaintiff herein : First: {Insert denials in accordance with Form No. 161, ante.) Second: As a further and separate defense to the alleged cause of action stated in the complaint, the defendant alleges that the note mentioned in the complaint was made and de- livered by the defendant to the plaintiff on the day of ,19 , upon the usurious agreement between the defendant {maker) and the plaintiff {payee) that the defend- ant (maA;er) should pay to the plaintiff {payee) and the plaintiff should reserve and secure for himself, for the loan of AN3WERS INCLUDING COUNTERCLAIMS 273 Answer Pleading Statute of Limitations dollars for months from the day of ,19 , the sum of dollars; that the same is at the rate of more than the legal rate of six per centum per annum, to wit, at the rate of per centum per an- num and by reason thereof the said promissory note was and still is null and void. WHEREroRE, the defendant demands judgment that the complaint be dismissed, with costs. Ely Franklin, Attorney for Defendant, No. 31 Nassau Street, Borough of Manhattan, [Verification.] New York City. FORM NO. 165 Answer Pleading Statute of Limitations New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. The defendant answering the complaint of the plaintiff herein : First: {Insert denials as in Form No. 161, ante.) Second : That the alleged cause of action stated in the com- plaint did not accrue within (six) years before the commence- ment of this action. Wherefore, the defendant demands judgment that the complaint be dismissed, with costs. Ely Franklin, Attorney for Defendant, No. 141 Broadway, Borough of Manhattan, [Verification.] New York City. 274 Bradbury's lawyers' manual Answer; Discharge of Defendant in Banlcruptcy FORM NO. 166 Answer; Payment {Title Same as Complaint) The defendant answering the complaint of the plaintiff herein : First: (Insert denials the same as in Form No. 161, ante.) Second: As a further and separate defense to the alleged cause of action stated in the complaint the defendant alleges that before the commencement of this action, and on or about the day of , 19 , at , the defendant satisfied and discharged the plaintiff's alleged claim by paying to the plaintiff the sum of dollars, which the plaintiff received in full settlement, accord and satis- faction of his alleged claim. -— Wherefore, the defendant demands judgment that the complaint be dismissed, with costs. Ely Frajstklin, Defendant's Attorney, No. 31 Nassau Street, Borough of Manhattan, New York City. ■ [Verification.] FORM NO. 167 Answer; Discharge of Defendant in Bankruptcy {Title Same as Complaint) The defendant answering the complaint of the plaintiff herein : First: {Insert denials same as in Form No. 161, ante.) Second: As a further and separate answer to the alleged cause of action stated in the complaint the defendant alleges ANSWERS INCLUDING COUNTERCLAIMS 275 Answer; General Answer by Infant Submitting Rights that prior to the commencement of this action and after the alleged claim stated in the complaint had accrued a petition in bankruptcy was duly filed by the defendant in the United States District Court in and for the (Southern) District of (New York) and such proceedings were duly had thereon; that on or about the day of , 19 , a decree was duly entered and filed in said court wherein and whereby this defendant was duly discharged of all his debts, including the one stated in his complaint. That due notice of said bank- ruptcy proceedings was served on the plaintiff herein and the plaintiff had knowledge thereof and the alleged claim stated in the complaint was duly scheduled in said bankruptcy pro- ceedings in favor of the plaintiff. Wherefore, the defendant demands judgment that the complaint be dismissed, with costs. Ely Franklin, Defendant's Attorney, No. 26 Nassau Street, Borough of Manhattan, New York City. [Verification.] • FORM NO. 168 Answer; General Answer by Infant Submitting Rights to the Pro- tection of the Court New York Supreme Court, New York County. A. B., Plaintiff, against C. D., an Infant, by E. F., his Guard- ian ad Litem (and others), Defendants. The defendant, C. D., by E. F., his guardian ad litem, an- swering the complaint of the plaintiff says that he is an infant 276 Bradbury's lawyers' manual Answer; General Answer by Infant Submitting Rights under tHe age of twenty-one years of age and claims such in- terest in the premises described in the complaint as he is en- titled to and submits his rights to the protection of the court. C. D., by E. F., his Guardian ad Litem, No. 1 Nassau Street, Manhattan Borough, New York City. (Need not be verified.) CHAPTER XV REPLY FORMS NO. PAGE 168a. Reply 277 FORM NO. 168a Reply 1 (Code Civ. Pro., §§ 514-517) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff replying to the counterclaim contained in the answer of the defendant herein: I. Denies the allegations contained in the paragraph of said comiterclaim marked "Second." II. Denies that he has any knowledge or information suf- ' A reply is necessary in the first instance when a counterclaim, specified as such, is contained in the answer. The court, however, has power to order a reply to any affirmative defense in the answer and this power is frequently exercised where matter is set up in the answer which on its face appears to be a complete defense to the cause of action set forth in the complaint. Thus a reply is often required where the defendant sets up a general release, or the statute of hmita- tions. Where in defense of an action for goods sold and delivered the defendant al- leged that the plaintiff and all other creditors entered into a composition agree- ment, whereby they all agree to accept one-third of their accounts and fuUy dis- charge the defendant, and further that the plaintiff actually received the amount agreed upon, the plaintiff should be required to reply so as to inform the defend- ant of the ground upon which the plaintiff expects to attack the composition agreement. Luna v. Markowitz, 2 Bradbury's Pl. & Pr. Rep. 85. 277 278 bradbuky's lawyers' manual Reply ^ ficient to form a belief as to the truth of any of the allegations contained in the paragraph of the counterclaim marked "Fifth." Wherefore the plaintiff demands judgment as in the com- plaint. Ely Franklin, Attmney for the Plaintiff. [Verification.] CHAPTER XVI DEMURRERS ' FORMS NO. PAGE 169. Demurrer to complaint; court without jurisdiction of per- son of defendant 280 170. Demurrer to complaint; court without jurisdiction of sub- ject of action 280 171. Demurrer to complaint; plain- tiff is without legal capac- ity to sue 281 172. Demurrer to complaint; an- other action pending for same cause 281 173. Demurrer to complaint; mis- joinder of parties plaintiff 282 174. Demurrer to complaint; de- fect of parties plaintiff. . . 283 175. Demurrer to complaint; de- fect of parties defendant. . 283 176. Demurrer to complaint; im- proper joinder of causes of action 284 NO. • PAGE 177. Demurrer to complaint; facts not stated sufficient to con- stitute a cause of action. . 284 178. Demurrer to affirmative de- fense in answer 285 179. Demun-er to counterclaim; court without jurisdiction of the subject-matter thereof 285 180. Demurrer to counterclaim; defendant without legal capacity to sue 286 181. Demurrer to counterclaim; another action pending. . . 286 182. Demurrer to counterclaim; not allowed by § 501 of the Code 287 183. Demurrer to counterclaim; cause of action not stated . 287 184. Demurrer to reply 288 ' A demurrer is never verified. 279 280 bradbdry's lawyers' manual Demurrer to Complaint FORM NO. 169 Demurrer to Complaint; Court without Jurisdiction of Person of Defendant ^ (Code Civ. Pro., § 438, subd. 1) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., ... J Defendant. The defendant herein demurs to the complaint of the plain- tiff on the ground that it appears on the face thereof that the court has no jurisdiction of the person of the defendant. Dated the day of , 19 . Ely Franklin, Attorney for Defendant, No. 26 Nassau St., Borough of Manhattan, New York City. FORM NO. 170 Demurrer to Complaint; Court without Jurisdiction of Subject of Action (Code Civ. Pro., § 438, subd. 2) {Title Same as Complaint) The defendant demurs to the complaint herein on the ground 1 Lack of jurisdiction over the person of a defendant which does not appear from the complaint is waived unless pleaded in the answer. Gordon v. Moore, 59 Misc. 161; llOSupp. 374. DEMURRERS 281 Demurrer to Complaint that it appears on the face thereof that the court has not juris- diction of the subject of the action. Ely Franklin, Defendant's Attorney, No. 26 Nassau Street, Borough of Manhattan, New York City. FORM NO. 171 Demurrer to Complaint; Plaintiff is without Legal Capacity to Sue (Code Civ. Pro., § 488, subd. 3) . , , . {Title Same as Complaint) The defendant demurs to the complaint herein on the ground that it appears upon the face thereof that the plaintiff has not legal capacity to sue for the following reasons : {Here specify the particular reasons why the plaintiff has not legal capacity to sue.) Ely Franklin, Defendant's Attorney, No. 26 Nassau Street, Borough of Manhattan, New York City. FORM NO. 172 Demurrer to Complaint; Another Action Pending for Same Cause (Code Civ. Pro., § 488, subd. 4) {Title Same as Complaint) The defendant demurs to the complaint of the plaintiff herein on the ground that it appears on the face thereof that 282 bradbxjry's lawyers' manual Demurrer to Complaint there is another action pending between the same parties for the same cause. Ely Franklin, Defendant's Attorney, No. 26 Nassau Street, Borough of Manhattan, New York City. FORM NO. 173 Demurrer to Complaint; Misjoinder ^ of Parties Plaintiff (Code Civ. Pro., § 488, subd. 5) (Title Same as Complaint) The defendant demurs to the complaint of the plaintiff herein on the ground that it appears on the face thereof that there is a misjoinder of parties plaintiff in the following particulars: (Here set forth particularly the facts stated in the complaint showing the misjoinder.) Elt Franklin, Defendant's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. ■^Misjoinder of parties means "too many"; defect means "too few." Thus where a complaint in equity discloses that certain of the defendants are proper parties, although possibly not necessary parties, the proper parties defendant as distinguished from necessary parties are not entitled to test the complaint by the strict rules of demurrer. Mawhinney v. Bliss, 124 App. Div. 609; 109 Supp. 332; aff'd 194 N. Y. 590. DEMURRERS 283 Demurrer to Complaint FORM NO. 174 Demurrer to Complaint; Defect ^ of Parties Plaintiff (Code Civ. Pro., § 488, aubd. 6) (Title Same as Complaint) The defendant demurs to the complaint of the plaintiff on the gromid that it appears on the face thereof that there is a defect of parties plaintiff in the following particulars: {Here set forth the particular defect to which objection is made.) Ely Franklin, Defendant's Attorney, No. 26 Nassau Street, Borough of Manhattan, New York City. FORM NO. 175 Demurrer to Complaint; Defect ^ of Parties Defendant (Code Civ. Pro., § 488, subd. 6) (Title Same as Complaint) The defendant demurs to the complaint of the plaintiff herein upon the ground that it appears upon the face thereof that there is a defect of parties defendant in the following par- ticulars thereof, to wit : (Here state the particular defects to which objection is made.) Ely Franklin, Defendant's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. ' See note to preceding Form No. 173, ante. ' See note to second preceding Form No. 173. 284 BRADBURY'S LAWYERS' MANUAL Demurrer to Complaint FORM NO. 176 Demurrer to Complaint; Improper Joinder* of Causes of Action* (Code Civ. Pro., § 484 and § 488, subd. 7) (Title Same as Complaint) The defendant demurs to the complaint herein on the groimd that it appears upon the face of the complaint that several causes of action have been improperly imited therein;, the first being a demand for damages on contract and.the second being a claim for damages on a cause of action on tort, to wit, mis- representation and deceit, and that the Code of Civil Procedure, § 484 thereof, does not permit said two causes of action to be united in one complaint. (There must be a specific statement of the defect.) Ely; Franklin, Defendant's Attorney, No. 26 Nassau Street, . Borough of Manhattan, New York City. FORM NO. 177 Demurrer to Complaint; Facts not Stated Sufficient to Constitute a Cause of Action (Code Civ. Pro.*, § 488, subd. 8) (Title Same as Complaint.) The defendant demurs to the complaint herein on the 1 Adapted from Edison Electric Illuminating Co. v. Kalbfleisch, 117 App. Div. 842; 102 Supp. 1039, where it was held that a cause of action for breach of con- tract and another action for damages for fraud in inducing the plaintiff toTriakfe the same contract were not consistent with each other and could not be united under Code Civ. Pro., § 484, subdivision 9. DEMURRERS 285 Demurrer to Counterclaim ground that it does hot state facts sufficient to state a cause of action. Ely Franklin, Defendant's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 178 Demurrer to Affirmative Defense in Answer (Code Civ. Pro., § 494) (Title Same as Complaint) The plaintiff hereby demurs to the affirmative defense con- tained in the answer herein, in the paragraphs thereof marked "Second" and "Third," on the ground that the same is in- sufficient in law upon the face thereof. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 179 Demurrer to Counterclaim; Court Without Jurisdiction of the Sub- ject-Matter Thereof (Code Civ. Pro., § 495, subd. 1) (Title Same as Complaint) The plaintiff demurs to the counterclaun contained m the paragraph of the answer numbered "Second" on the ground 286 Bradbury's lawyers' manual Demurrer to Counterclaim that it appears on the face thereof that the coiirt has not jurisdiction of the subject-matter thereof. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 180 Demurrer to Counterclaim; Defendant without Legal Capacity to Sue (Code Civ. Pro., § 495, subd. 2) {Title Same as Complaint) The plaintiff demurs to the counterclaim contained in the answer of the defendant herein in the paragraphs niunbered "Third" and "Fourth," on the ground that it appears upon the face thereof that the defendant has not legal capacity to recover upon said counterclaim for the following reasons : (Here specify the particular reasons showing the incapacity to recover on the counterclaim as appears on the face thereof.) Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 181 Demurrer to Counterclaim; Another Action Pending (Code Civ. Pro., § 495, subd, 3) (Title Same as Complaint) The plaintiff demurs to the counterclaim contained in the answer of the defendant in the paragraph thereof numbered DEMURRERS 287 Demutref to Counterclaim "Third," on the ground that it appears on the face thereof that there is another action pending between the same parties for the same cause. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 182 Demurrer to Counterclaim; Not Allowed by § 501 of the Code ^ (Code Civ. Pro., § 495, subd. 4) (Title Same as Complaint) The plaintiff demurs to the counterclaim contained in the answer herein in the paragraph thereof numbered "Fourth" on the groimd that said coimterclaim is not of the character specified in § 501 of the Code of Civil Procedure and is there- fore improperly interposed as a counterclaim in this action. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 183 Demurrer to Counterclaim; Cause of Action not Stated (Code Civ. Pro., § 495, subd. 5) {Title Same as Complaint) The plaintiff demurs to the counterclaim set forth in the answer herein in the paragraph of said answer numbered ' See Eckert v. OalUen, 40 App. Div. 525; 58 Supp. 85. 288 Bradbury's lawyers' manual, Demurrer to Reply "Second" on the ground that it does not state facts sufficient to constitute a cause of action. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. FORM NO. 184 Demurrer to Reply ^ (Code Civ. Pro., § 493) {Title Same as Complaint) The defendant demiu-s to the reply herein (or to the separate traverse contained in said reply) in the paragraphs thereof marked "Third" and "Fourth" on the ground that it is in- sufficient in law upon the face thereof. Ely Franklin, • Defendant's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. 1 Where an answer is bad a demurrer to a reply cannot be sustained, even though the reply is defective, as in such a case the rule that a demurrer reaches the first bad pleading relates back to the answer. Leuns v. Ryan, 55 Misc. 408; 106 Supp. 646; rev'd on ground answer was good, 123 A. D. 497; 108 Supp. 274. CHAPTER XVII BILLS OF PARTICULARS FORMS NO. PAGE NO. PAGE 185. Demand for bill of particu- 191. Order requiring bill of par- lars on an account 289 ticulars 298 186. Affidavit on motion for bill of 192. Bill of particulars 300 particulars before answer . . 291 193. Notice of motion for order 187. Affidavit of attorney to ac- precluding giving of evi- company preceding form. . 293 dence because of failure to 188. Order to show cause on ap- file bill of particulars 301 plication for bill of par- 194. Affidavit on motion to ex- ticulars before answer. . . . 295 elude evidence for failure 189. Notice of motion for bill of to comply with order for particulars after answer. . 296 bill of particulars 303 190. Affidavit on motion for bill of 195. Order precluding giving of particulars after answer . . 297 testimony for failure to file bill of particulars 305 FORM NO. 185 Demand for Bill of Particulars on an Account ^ {Title Same as Complaint) Please take notice, that demand is hereby made upon you that you serve upon the undersigned a bill of particulars of the 1 a demand for a bill of particulars has no especial significance except in an action upon an account. Demands for bills of particulars are frequently served in other actions, however, but a neglect to comply with such demand in an action other than one on an account, has no bearing on the case, except that upon a subsequent motion the court may take into consideration the fact that a demand was made and was not complied with and thus grant costs on the motion. Thus when a demand for a bill of particulars in a case in which the party is clearly entitled thereto, has been ignored, the court, in granting the motion therefor, should award costs to the moving party. Adler v. Morio, 3 Beadbtjby's Pl. andTr. R. 428. Where no demand has been made for a bill of particulars and on a motion therefor the opposite party defaults, no costs should be allowed to the moving 289 290 Bradbury's lawyers' manual Demand for Bill of Particulars on an Account account set forth in the complaint herein within ten days of the date service is made upon you of this notice. Dated the day of , 19 . To G. H., Esq., Yours, etc., Attorney for Plaintiff, A. B., No. , Street, Attorney for Defendant. Borough of Manhattan, New York City. party. But it seems that where a demand is made for a bill of particulars and a party unreasonably refuses or neglects to give the same and then defaults upon the motion compelling the service of such a bill, the court should award costs. Williams v. Trecartin, 2 Bbadbhry's Pl. and Pr. R. 125, note. While a bill of particulars may be required of a defense of payment a motion therefor should not be granted where the sole purpose of the application is to- limit the defendant in his proof of payment Clement National Bank v. Avery, 3 Bradbury's Pl. and Pr. R. 369. In an action for an accounting of the profits in promoting, financing, exploit- ing and establishing a corporation where it was alleged in the complaint that the plaintiff promised to use his "best efforts" to promote said corporation and that through his efforts and those of the defendants such corporation was successfully promoted, financed, exploited and established, it was held that the defendant was entitled to a bill of particulars setting forth of just what the "best efforts" consisted. Barnes v. Taylor, 2 Bradbury's Pl. and Pr. Rep. 97. For a note when a bill of particulars will be ordered in fraud cases see 1 Bradbury's Pl. and Pr. Rep. 49. A bill of particulars is no part of a pleading and cannot enlarge the cause of action or perfect an imperfect pleading. U. S. Printing and Lithographing Co. v. Powers, 171 App. Div. 406; 157 Supp. 440; Dodge v. Weill, 158 N. Y. 346. A motion for a bill of particulars is addressed to the sound discretion of the court and that discretion should be exercised according to the circumstances of the particular case. DeCordova v. Sanmlle, 171 App. Div. 422; 157 Supp. 432. It would be ridiculous circumlocution to require the plaintiff to give a bill of particulars of facts which could be acquired only by an examination of the de- fendant. DeCordova v. Sanvitle, 171 App. Div. 422; 157 Supp. 432. On a motion for a bill of particulars it is begging the question to say that the defendant knows the facts as well as the plaintiff; the question is not what the facts are but what tne plaintiff 'claims them to be and while the court will not compel a disclosure of evidence, it is clearly within the contemplation of the Code, in letter and spirit, that the adverse party should be told plainly and concisely the facts on which judgment is sought. Buffalo General Electric Co. v. Lunz, 159 Supp. 905; Havholm v. Whale Creek Iron Works, 159 App. Div. 578; 144 Supp. 833. Where in an action under the Labor Law, brought by a servant against his master, to recover for personal injuries alleged to have been caused by negligence the defendant, after denying the material allegations of the complaint, charged BILLS OF PARTICULARS 291 Affidavit on Motion for Bill of Particulars before Answer FORM NO. 186 Affidavit on Motion for Bill of Particulars before Answer ^ {Title Same as Complaint) State of New York County of New York City of New York ss: C. D., being duly sworn, deposes and says that he is the de- fendant in the above-entitled action ; that he has read the com- plaint in this action and knows the contents thereof and that that the plaintiff was guilty of contributory negligence and assumed the risks incident to his employment, it was held that the court might, in its discretion, require the defendant to give a bill of particulars of the affirmative defenses aforesaid. Havholm v. Whale Creek Iron Works, 159 App. Div. 578; 144 Supp. 833. In an action for damages to an automobile where the plaintiff's bill of particu- lars stated only damages to the automobile, the admission of evidence of the cost of hiring an automobile and a chauffeur, while plaintiff's car was being re- paired, was held to be erroneous. Nechamkin v. Kennedy, 159 Supp. 682. A bill of particulars of a defense may be ordered in the Municipal Court of the City of New York. Vor'on and Chait v. Benguiat, 157 Supp. 779; DeCordova v. Sanville, 157 Supp. 432. ' See Zeigler v, Garvin, 84 App. Div. 381, 82 Supp. 769, where an order before answer was granted on facts very similar to those stated on this and the follow- ing affidavits. See also Nash v. Spann, 13 App. Div. 226, 42 Supp. 964, where a bill of particulars was granted of a claim made in a counterclaim before reply, on circumstances which were somewhat extraordinary. In the last mentioned case the plaintiff sued for money loaned to the defendant, who was a physician. The defendant, in his answer, admitted the claim of the plaintiff but set up a counterclaim for about four times the amount of the plaintiff's claim. The counterclaim was for professional services during the same periods which it was alleged in the complaint during which the plaintiff had loaned money to the defendant. The court held that under these somewhat extraordinary circum- stances, where the defendant, a physician, claimed to have been performing services for the plaintiff during the same time that the defendant admitted that the plaintiff had loaned money to him, that he should bo compelled to serve a bill of particulars so that the plaintiff would have more specific information in relation to the claim before being compelled to reply thereto. It is a general rule that a motion for a bill of particulars before answer is pre- mature and must be denied and there are very few exceptions to this rule.- Amer- 292 Bradbury's ' lawyers' manual Affidavit on Motion for Bill of Particulars before Answer he is utterly ignorant of the facts and circumstances upon which the plaintiff bases his claim in this action. While it is true that the plaintiff did sell or secure the sale of certain paper manu- factured by the defendant yet the defendant never made any such contract as is alleged in the plaintiff's complaint and de- ponent has no knowledge or information of any sales made by the plaintiff whereby he became entitled to demand from the defendant the sum alleged in the complaint. Deponent further says that the total amount of sales made or secured by the plaintiff for or on account of defendant will not exceed the sum of dollars upon which the plaintiff would be entitled to receive as commissions the sum of dollars, which smn the defendants have been and are ready and willing to pay. But the defendant does not know the names of the persons to whom said alleged sales were made, nor the amount of such alleged sales, nor the dates of such alleged sales, and the defendant is wholly without knowl- edge of such information and has no way of informing himself thereof and the plaintiff is the only person who has such in- formation so far as deponent knows. It will be wholly impos- sible for the defendant to properly draw an answer until he has further information as to the specific sales which the plaintiff alleges that he has made and the person to whom such sales ican Credit Indemnity Co. v. Bondy, 17 App. Div. 328; 45 Supp. 267; Hicks v. Eggleston, 95 App. Div. 162; 88 Supp. 528; Hoeninghaus v. Chaleyer, 52 Hun, 611; 4 Supp. 814; Walertown Paper Co. v. West, 3 App. Div. 451; 38 Supp. 229. The mere fact that the defendant does not know whether or not the plain- tiff's claim is correct does not entitle him to a bill of particulars before issue joined. U. S. Casualty Co. v. Jamieson, 122 App. Div. 608; 107 Supp. 490. And where the defendant has served an answer denying the making of the contract upon which the action is founded, he isnot entitled to a biU of particulars for the purpose of formulating an amended answer, although the affidavit might be sufficient to require a bill of particulars to prepare for trial. Sands v. Holland Torpedo Boat Co., 115 App. Div. 151; 100 Supp. 684. An allegation of ignorance of the particulars of the plaintiff's claim does not entitle the plaintiff- to a bill of particulars before answer as he is permitted by the Code to deny that he has anySsnowledge or information sufficient to form a belief as to the allegations contained in the complaint. Schultz v. Rubsam, 104 App. Div. 20; 93 Supp. 334; Standard Materials Co. v. Bowne & Son Co., 118 App. Div. 91; 103 Supp. 12; Ehnch v. Dessar, 130 App. Div. 110; 114 Supp. 271. BILLS OP PARTICULARS 293 Affidavit of Attorney to Accompany Preceding Form were made and the amounts and dates of such sales. The defendant has a large number of customers whose names ap- pear on his books and a large nimiber of sales have been made within the period specified in the complaint, but deponent can- not tell which ones of these sales the plaintiff alleges that he brought about and can only learn the particulars concerning such sales after he had received specific knowledge of what the plaintiff's claim is so that he may investigate such claims and discover how the various sales were brought about, if it ap- pears that any of the sales on defendant's books are alleged to have been made by the plaintiff. Sworn to before me, this 1 CD. day of , 19 {Signature and title of officer.) FORM NO. 187 Affidavit of Attorney to Accompany Preceding Form (Title Same as Complaint) State of New York j County of New York |ss: City op New York J E. F., being duly sworn, says that he is the attorney for the defendant in the above-entitled action, and he resides at No. Street, in the City of New York; that the summons and complaint herein were served on the defend- ant on or about the day of , 19 , and that the time of the defendant to answer has not been extended by stipulation or order except (if any extensions have been granted, state them). Deponent further says that a demand for a bill of particulars of the plaintiff's claim was duly served on the plaintiff's at- torney on the day of , 19 , (a copy of said demand is hereunto annexed, marked Exhibit A, and made 294 Bradbury's lawyers' manual Affidavit of Attorney to Accompany Preceding Form a part of this affidavit). The plaintiff has wholly failed and refused to serve such bill of particulars. As appears by the complaint herein, the plaintiff sues for conunissions on alleged sales of goods brought about by him for the defendant and unless the defendant can determine which of the sales appearing on his books are claimed to have been made by the plaintiff, so that the defendant can investi- gate and ascertain the truth of the allegations made in the com- plaint, it will be impossible for the defendant to properly meet the allegations of the complaint by denials which will permit him to have a proper investigation made of the plaintiff's real claim, without the danger of committing perjury. (As the time of the defendant to answer will expire on the day of ) 19 ) and the regular eight days' notice cannot be given without the defendant being in default before the time of the arguing of the motion, it is requested that an order to show cause should be made herein shortening the time within which this motion shall be heard and also ex- tending the time of the defendant to plead to the complaint to twenty days after the entry of an order to be made on this motion, or within twenty days after a bill of particulars directed to be furnished by such order shall be served.) Deponent further says that he has examined the complaint and the correspondence in the possession of the defendant in connection with the claim herein and has also gone thoroughly over the matters alleged in the complaint, with the defendant, and deponent verily believes that the defendant has a good and substantial defense to the cause of action set forth in the complaint or to some part thereof. This action is not yet at issue and the next term at which it is triable as appointed to be held in the County of New York on the day of , 19 . {See Rule 37, Gen. Rules of Prac.) No previous application for such an order has been made. Sworn to before me, this ] E. F. day of , 19 {Signature and title of officer.) BILLS OF PARI'ICULARS 295 Order to Show Cause on Application for Bill of Particulars before Answer FORM NO. 188 Order to Show Cause on Application for Bill of Particulars before Answer New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On reading and filing the annexed affidavits of C. D., sworn to the day of , 19 , and of E. F., sworn to the day of , 19 , and on reading the verified complaint in the above-entitled action, duly verified the day of , 19 , and on motion of E. F., attorney for the defendant, it is hereby Ordered, that the plaintiff 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 requiring the plaintiff in the above- entitled action to serve a verified bill of particulars on the de- fendant's attorney giving the particulars of the dates, times, places and amounts of the sales alleged to have been made by the plaintiff on behalf of the defendant and the person to whom such sales were made, and sufficient reason appearing for the shortening of the time within which said motion shall be heard, it is Further ordered that service of this order and the affi- davits on which the same is founded, on the plaintiff's attorney, shall be deemed sufficient if served on or before the day of , 19 . It is FURTHER ORDERED that the time of the defendant to answer, demur or otherwise move as to the complaint herein is 296 Bradbury's lawyers' manual Notice of Motion for Bill of Particulars after Answer hereby extended twenty days after the service of the order which shall be entered upon this motion. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. FORM NO. 189 Notice of Motion for Bill of Particulars after Answer (Title Same as Complaint) Please take notice, that on the annexed affidavit of C. F., sworn to the day of , 19 , and upon the pleadings herein, a motion will be made 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 Courthouse therein on the day of , 19 , at the opening of court on that day, or as soon thereafter as coimsel can be -heard for an order requiring the plaintiff to serve a verified bill of particulars stating the time and place of the injuries alleged to have been suffered in the complaint, and also the particular acts of negligence of the defendant, of which complaint is made and also the names of the agents and servants of the defendant whom it is alleged were guilty of such acts of negligence, and also particulars as to the injuries alleged to have been suffered by the plaintiff and the nature of the permanent injuries al- leged in the complaint to have been suffered, and for such other, fiu^her and different relief as may be proper, with the costs of this motion. Dated the day of , 19 . Yours, etc., Ely Franklin, Attorney for Defendant, No. 1 Nassau Street, Borough of Manhattan, New York City. BILLS OF PARTICULARS 297 Affidavit on Motion for Bill of Particulars after Answer FORM NO. 190 Affidavit on Motion for Bill of Particulars after Answer ^ (Title Same as Complaint) ss: State of New York County of New York City of New York CD., being duly sworn, deposes and says that he is the de- fendant in the above-entitled action. This action is brought to recover damages for personal injuries alleged to have been suffered by the plaintiff by reason of the alleged negligence of the defendant. It is alleged in the complaint merely that the injury was caused by the alleged negligent acts of the defendant, his agents and servants, without specifying the particular negligent acts of which complaint is made. It is further stated in the complaint that the plaintiff has suffered serious and permanent injuries, but without specifying the nature of such injuries. Deponent is unaware of the nature of the negligent acts which the plaintiff intends to prove and will therefore be un- able to meet them at the trial, unless he has specific knowledge of what these alleged acts consist, and the defendant is also imaware and has no means of ascertaining the serious and per- manent injuries of which the plaintiff complains, as alleged in the complaint. Deponent therefore asks that a bill of particulars may be required showing specifically the time of such injury stated in the complaint, the place where the injury occurred, the specific negligent acts of which complaint is made and the names of I As the function of a bill of particulars is not to give information of facts in the possession of the party required to furnish it, but to particularize the " claim " of such party, there is little reason for insisting that the apphcation therefor shall be based on the affidavit of the party rather than that of the attorney. Speedwell Motor Car Co. v. Boyce, 3 Bradbury's Pl. and Pr. R. 324. 298 Bradbury's lawyers' manual Order Requiring Bill of Particulars the persons alleged to have been the agents and servants of the defendant who are alleged to have committed said acts and also a specific statement of the injuries which the plaintiff has suffered and the specific nature of such injuries, and for such other, further and different relief as may be proper. Deponent fiirther says that a demand has been made on the plaintiff for such a bill of particulars and the plaintiff has whoUy failed and refused to furnish such particulars. Deponent further says that this action is now at issue and placed on the general calendar of this coiu-t and is now No. on said general calendar and the next term upon which it can be brought up for trial will be the term beginning the first Monday of , 19 . Sworn to before me, this 1 C. D. day of ,19 . (Signature and title of officer.) FORM NO. 191 Order Requiring Bill of Particulars ^ At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Com-t- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., • Plaintiff, against C. D., Defendant. A motion having been regularly made by the defendant, requiring the plaintiff to fiunish a bill of particulars of certain 1 The order granting a motion for a bill of pai'ticulars should not provide for an exclusion of evidence in the event of (he failure of the paxty to serve such a bill as specified in the order. The order to exclude should be made on special motion after the defective bill of particulars has been served, or the party is in BILLS OF PARTICULARS 299 Order Requiring Bill of Particulars matters specified in the complaint as hereinafter recited, and said motion having come on regularly to be heard, Now, on reading the complaint and answer herein, hereto- fore duly filed in the office of the Clerk of the County of New York, and on reading and fifing the notice of motion herein, dated the day of , 19 , the affidavit of C. D., sworn to the day of , 19 , in favor of said motion, and the affidavit of A. B., sworn to the day of , 19 , in opposition thereto, and after hearing E. F., Esq., attorney for the defendant in favor of said motion, and G. H., Esq., attorney for the plaintiff in opposition thereto, and due deliberation having been had, it is hereby Ordered, that the plaintiff serve on the defendant's at- torney within ten days after the service of a copy of this order, a verified bill of particulars showing the times and places and the particular acts of negligence of which the plaintiff alleges the defendant, his agents or servants, have been guilty and also the names of the agents and servants of the defendant who were guilty of, such acts of negligence, and further showing the particular personal injuries which the plaintiff is alleged to have suffered and the particular nature of the permanent injuries which the plaintiff alleges he suffers by reason of such injuries. It is further ordered, that the defendant recover of the plaintiff the sum of ten ($10) dollars, costs of this motion. Enter, Peter A. Hendrick, Justice of the Supreme Court - of the State of New York. default in complying with the order, and on such a motion, if it appears that no bill of particulars has been served, the order follows as of course. But if a de- ficient bill is served the party will be allowed to serve an additional one and the exclusion order follows only when there is a default as to the second order. Posner V. Rosenberg, No. 1, 149 App. Div. 270; 133 Supp. 702; Smith v. Bradstreet Co., 134 App. Div. 567; 119 Supp. 487; Loscher v. Hager, 124 App. Div. 568; 109 Supp. 562; Foster v. Curtis, 121 App. Div. 689; 106 Supp. 388; Oatman v. Watrous, 99 App. Div. 254; 90 Supp. 940. 300 Bradbury's lawyers' manual Bill of Particulars FORM NO. 192 Bill of Particulars ' New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff herein hereby specifies the following as the par- ticulars of his claim for dollars (piu"suant to an order of this com-t in the office of the Clerk of the County of New York on the day of , 19 ). (// the particulars are in relation to an account for goods, sold and delivered, or work, labor and services, it should be in the form of an account, that is, giving the date of each item and the goods sold, or the date of the work and the kind of work, and the value thereof. If the particulars relate to the making of a contract, such as a written contract contained in correspondence, copies of the contract or the correspondence are usually required. If it relates to a parol contract the particulars of the contract and the dates should be given. Sometimes it is required to state with whom the contract is made, that is, the names of the officers of a corporation, for example. If the particulars are in relation to an account where the action is on an account stated, a copy of the account should be annexed. Frequently the particulars are in relation to injuries in an action for damages for personal injuries caused by negligence; and in such cases there should be a specific statement of such injuries and care should be taken to include all of su^h ' For form of bill of particulars in a suit for alienation of affections in an action by a wife against a woman who induced her husband to desert her, from the case of Goslin V. Magher, 207 N. Y. 716; aff'g without opinion 141 App. Div. 926; 125 Supp. 1122, see also 3 Bradbury's Pl. and Pr. Rep. 480. BILLS OP PARTICULARS 30i Notice of Motion for Order Precluding Giving of Evidence injuries or the plaintiff may be barred on the trial from giving evidence thereof.) Ely Franklin, • Attorney for Plaintiff, No. 1 Nassau Street, Borough of Manhattan, New York City. State or New York ] County of New York J A. B., being duly sworn, says that he is the plaintiff in the above-entitled action; that the foregoing bill of particulars is true of his own knowledge except as to the matters which are 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, this day of , 19 {Signature and title of officer.) A. B. FORM NO. 193 Notice of Motion for Order Precluding Giving of Evidence Because of Failure to File BUI of Particulars ^ New York Supreme Court, New York County. A. B. Plaintiff, against C. D., Defendant. Please take notice, that on the annexed affidavit of E. F., sworn to the day of , 19 , and on all the ' An order precluding the giving of evidence cannot be granted as part of an order granting a motion for a bill of particulars. This has been held in a number of cases. The proper practice is pointed out in the decision by Mr. Justice Platzek, in the case of Joseph Beck & Sons v. Tynberg, 3 Bradbury's Pl. and Pr. Rep. 28, where it is held that if it is contended that a bill of particulars, served in com- 302 Bradbury's lawyers' manual Notice of Motion for Order Precluding Giving of Evidence proceedings had in this action, particularly on the verified complaint and answer on file in the office of the Clerk of the County of New York, and on the order of this court in said action duly filed in the office of the Clerk of the County of New York, on the day of , 19 , and the fur- ther order of this court in said action duly filed in the office of the Clerk of the County of New York, on the day of ,19 , and the bill of particiilars heretofore served on the defendant's attorney by the plaintiff, the original of which was duly filed in the office of the Clerk of the County of New York on the day of , 19 , a motion will be made 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 Courthouse therein on the day of ,19 , at the opening of court on that day, or as soon thereafter as counsel can be heard for an order precluding the plaintiff from giving evidence concerning the allegations contained in the paragraphs numbered "Fifth" and "Sixth" of the complaint herein and for such other, further and different relief as may be proper, with the costs of this motion. Dated the day of , 19 . Yours, etc., To Ely Franklin, Esq., George Haedy, Attorney for Defendant, Attorney for Plaintiff, No. 31 Nassau Street, No. 141 Broadway, New York City. Borough of Manhattan, New York City. pliance with an order therefor, is not sufficiently explicit, it should be returned and a motion made at Special Term, on notice, for a more specific bill, before a motion is made to preclude the party furnishing the bill from giving evidence at the trial because of failure to comply with the order for a bill of particulars. And the court cites a number of oases which uphold this practice. Where the defendant refuses to accept a bill of particulars directed to be served by an order of the court, on the ground that it does not comply with such order, and the plaintiff thereafter secures an order for a biU of particulars to be vacated, the correct practice of the defendant, if he desires a bill of particulars, is to make a new application for a new order. Fursl v. Boyd, 2 Bradbury's Pl. .\nd Pr. Rep. 125, note. ^\'he]-e a bill of particulars furnished by the defendant states that the work BILLS OF PARTICULARS 303 Affidavit on Motion to Exclude Evidence FORM NO. 194 Affidavit on Motion to Exclude Evidence for Failure to Comply with Order for Bill of Particulars New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. State of New York County of New York (■ ss: City of New York E. F., being duly sworn, deposes and says that he is the at- torney for the defendant in the above-entitled action. That an order was made in this action by this court and duly filed and entered in the office of the Clerk of the County of New York on the day of > 19 , requiring the plaintiff to serve a verified bill of particulars within ten days after service of said order, with notice of entry, on the plaiatiff's attorney, in relation to the allegations contained in the paragraphs numbered "Fifth" and "Sixth" of the com- plaint herein. Reference is hereia made to said order which is now on file, as if incorporated in this affidavit. A copy of said order, with notice of entry, was duly served on the plaintiff's attorney on the day of , 19 . Within the ten days prescribed in said order the plain- tiff's attorney served on the defendant's attorney a bill of par- was done in an unworkmanlike manner "among other things" in certain par- ticulars, and it appears that the defendant relies on the words "among other things" a further bill will be ordered specifying what the "other things" were upon which reliance has been placed. Ficklen Concrete Construction Co. v. Meehan Building Co., 2 Bradbury's Pl. and Pr. Rep. 124, note. 304 Bradbury's lawyers' manual Affidavit on Motion to Exclude Evidence ticulars which failed to comply with said order. The defend- ant's attorney thereupon returned said bill of particulars with a notice thereon that it was returned because he did not com- ply with said order. Thereafter and on the day of , 19 , on the motion of the defendant, a further order was made by this court which said order was duly filed in the office of the Clerk of the County of New York on the day of ,19 , requiring the plaintiff to furnish another bill of particulars giving further particulars in relation to the same paragraphs of the complaint in addition to those furnished in said biU of particulars to which reference is herein made. Reference is made to said second order, together with the de- fective bill of particulars filed by the plaintiff, which said order and bill of particulars are on file in the office of the clerk of the County of New York and said reference is made the same as if said order and said bill of particulars were incorporated in this affidavit. The said second order was duly served on the attorney for the plaintiff on the day of > 19 , together with a notice of entry thereof, and more than ten days have expired since the service of said order and the notice of entry and the plaintiff has wholly failed to furnish any fiu-ther par- ticulars whatsoever and no additional biU of particulars has been served upon the defendant's attorney. Deponent therefore prays that an order may be made pre- cluding the plaintiff from giving evidence on the trial of this action concerning the allegations stated in the paragraphs of the complaint marked "Fifth" and "Sixth," and for such other, further and different relief as may be proper, with the costs of this motion. Sworn to before me, this | p p, day of , 19 . J {Signature and title of offlcer.) BILLS OP PARTICULARS 305 Order Precluding Giving of Testimony FORM NO. 195 Order Precluding Giving of Testimony for Failure to File BiU of Particulars At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant, A motion having been regularly made by the defendant above name'd to preclude the plaintiff from giving testimony at the trial of this action, in relation to the allegations contained in the paragraphs of the complaint numbered "Fifth" and "Sixth" of the complaint, because of failure of the plaintiff to comply with two several orders of this coiu-t to furnish a verified bill of particulars as to said allegations, and said motion having come on regularly to be heard, now on reading the summons and complaint, duly filed in the office of the Clerk of the County of New York, the order of this court duly filed in the office of the Clerk of the County of New York on the day of ,19 , and the further order of this court duly filed in the office of the Clerk of the County of New York on the day of , 19 , together with the original bill of particulars furnished by the plaintiff to the defendant, duly filed in the office of the clerk of the County of New York on the day of , 19 , and upon reading and filing the affidavit of E. F., sworn to the day of ,19 , in favor of said motion, and on reading and fiUng the affidavit of L. M., sworn to the day of 306 BRADBURY S LAWYERS MANUAL Order Precluding Giving of Testimony ,19 , in opposition thereto, and after hearing E. F., Esq., attorney for the defendant, in favor of said motion, and G. H., Esq., attorney for the plaintiff in opposition thereto, and due deUberation having been had, it is, on motion of E. F., attorney for the defendant, hereby Ordered, that the plaintiff be and hereby is excluded from giving any testimony upon the trial of this action in relation to the allegations contained in the paragraphs of the complaint herein marked "Sixth" and "Seventh," and it is Further ordered, that the defendant recover of the plain- tiff ten dollars costs of this motion (to abide the event of the action). Enter, Peter A. Hendrick, Justice of the Supreme Court of the State of New York. CHAPTER XVIII VERIFICATION ^ FORMS - ifO. .. PAGE NO. PAGE •n^6. Verification by a party 308 not on information and be- "M-Oy. Verification by officer of a lief 312 domestic corporation 309 202. Verification by agent or at- 198. Verification by agent or at- torney of foreign corpora- torney where all the ma- tion where pleading is on terial allegations of the information and beUef . . . 312 pleading are within his 203. Verification by attorney of , personal knowledge 310 foreign corporation where M99. Verification where the plead- the answer alleges that the ing is founded upon a writ- defendant has no knowl- ten instrument for the pay- edge or information suffi- ment of money which is in cient to form a belief 313 the possession of the agent 204. Verification of a pleading on or attorney 310 behalf of the people of the 200. Verification by attorney State or a public officer in where party is not within their behalf by a party who the county where the at- is acquainted with the torney resides or has his facts 314 office 311 205. Notice to be endorsed on 201. Verification by attorney or pleading upon returning agent of foreign corpora- the same for want of a tions, where the allegations verification or because of a are made positively and faulty verification 314 ^ Except as especially required by statute it is not necessary to verify a com- plaint in any case where it is to be used merely as a pleading. It is optional with the plaintiff in most cases whether he shall verify the complaint or not, but if the plaintiff desires to compel the defendant to put in a verified answer then it is necessary that the complaint be verified. A verified complaint is usually neces- sary in entering judgment by default. As a matter of fact, it is almost invariably the custom to verify complaints. There are certain specific instances in which the Code of Civil Procedure requires that complaints shall be verified. For ex- ample, if it is desired to secure an order for the service of the summons by publica- tion the complaint must be verified and must be one of the papers on which the order is founded. Code Civ. Pro., § 439. Whenever a complaint is to be used as an affidavit, for example, to procure an order of arrest, an attachment or an injunction, then the complaint must be verified. There are certain 307 308 bradbuey's lawyers' manual Verification by a Party FORM NO. 196 Verification by a Party (Code Civ. Pro., § 526) State of New York 1 County of New York J A. B., being duly sworn, deposes and says that he is the plain- tiff (defendant) in the above-entitled action; that the fore- going complaint (answer) is true of his own kno-vde^ge,. except ^ proceedinga under the Code which require a verification. They are as follows: An answer denying the incorporation of the plaintiff. Code Civ. Pro., § 1776. A^complaint in an action against joint debtors part of whom were not sum- moned>in a former action. Code Civ. Pro., § 1938. A return to a writ of habeas corpus, unless made by a sworn pubhc officer in his official capacity. Code Civ. Pro.,- § 2026. A petition for the discharge of an insolvent debtor. Debtor and Creditor Law, §52. The petition and answer in a summary proceeding to recover possession of real property. Code Civ. Pro., §§ 2235 and 2244. A petition on the application to sell the land of an infant. Code Civ. Pro., § 2350. A petition to change the name of an infant or a corporation. Code Civ. Pro., § 2412. A petition or answer in condemnation proceedings. Code Civ. Pro., § 3366. In the Surrogate's Court all petitions are verified and the Surrogate may re- quire, and invariably does require, that all petitions on proceedings in his court shall be verified. A dilatory defense which does not involve the merits of the answer must be verified. Code Civ. Pro., § 513. If it is desired to enter judgment by default the complaint must 'be verified upon a cause of action for a sum of money only, which sum is liquidated, or sub- ject to computation, and if the complaint is not verified proof must be given before the clerk. Code Civ. Pro., §§ 420, 1212, and 1213. After a verified pleading has been served all subsequent pleadings must be verified, unless the subsequent pleading is in relation to a matter as to which the party pleading would be privileged from testifying as a witness relating to an allegation or a, denial contained in the pleading. Code Civ. Pro., § 523. This rule is modified somewhat in relation to judgment creditor's actions based on fraud. Code Civ. Pro., § 529. In an action for a divorce the answer need not be verified notwithstanding the verification of the complaint. Code Civ. Pro., VERIPICATI^I^^HL 809 Verification by Officer of a Domestic Corporation 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, this 1 A. B. day of ,19 ./ {Signature and title of oficer.) FORM NO. 197 Verification by Officer of a Domestic Corporation (Code Civ. Pro., § 525) State of New York County op New York A. B., being duly sworn, deposes and says that he is an officer, to wit, the of the Company, the plaintiff (defendant) in the above-entitled action; that the foregoing complaint (answer) is true of his own knowledge, except as to the matters which are 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 me, this 1 A. B. day of , 19 . ^(Signature and title of officer.) § 1757. But if the answer contains a counterclaim charging adultery it must be verified in regard to such counterclaim. Code Civ. Pro., § 1757. Under Code Civ. Pro., § 523, it is held in an action for libel the answer need not be verified even if the complaint is verified. Golh v. jSlnr Printing Co., 14 Civ. Pro. R. 3. But this rule does not apply to an action for slander. Coghlan v. Lowell, 2 Brad- bury's Pl. & Pr. Rep. 31. And in an action for negligence where the complaint charged that the defendant wrongfully and improperly drove a team of liorsos on a public highway while he was drunk, it was held that the answer need not be verified as the complaint charged, in effect, cruelty of animals, which was a crime. Rutherford v. Krause, 8 Misc. 547; 29 Supp. 787. An old rule requires a verified answer to be served even though the complaint is not verified, unless the defendant serves with his answer an affidavit of merits; but the affidavit of merits may be filed at any time before the inquest is taken for the failure to file such affidavit. Beglin v. People's Trust Co., 4S Misc. 494; 95 Supp. 910. 310 BRA^fesalPR lawyers' manual Verification Where Pleading is Founded upon Written Instrument FORM NO. 198 Verification by Agent or Attorney Where all the Material Allegations of the Pleading are Within His Personal Knowledge (Code Civ. Pro., § 525) State of New York 1 County of New York J " ' 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 of his own knowledge, except as to the matters which are 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 (de- fendant) is that all the material allegations of said complaint (answer) are within the personal knowledge of deponent. Sworn to before me, this | A. B. day of , 19 {Signature and title of officer). FORM NO. 199 Verification Where the Pleading is Founded upon a Written Instru- ment for the Payment of Money Which is in the Possession of the Agent or Attorney " (Code Civ, Pro., §525) State of New York County of New York A. B., being duly sworn, deposes and says that he is the agent (attorney) for the plaintiff in the above-entitled action; that the foregoing complaint is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief anfl that as to those matters he bfi- lie^'es it to b(^ true. The reason this verification is made by ss: VERIFICATION _ 311 Verification by Attorney Where Party is not Within the County deponent and not by the plaintiff is that the cause of action herein is founded upon a written instrument for the pajonent of money only, the original of which is in the possession of deponent. Sworn to before me, this 1 A. B. day of , 19 (Signature and title of officer.) FORM NO. 200 Verification by Attorney Where Party is not Within the County Where the Attorney Resides or has His Office (Code of Civ. Pro., § 525) State of New York County of New York ' A. B., being duly sworn, deposes and says that he is attorney for the plaintiff (defendant) in the above-entitled action; that the foregoing complaint (answer) is triie to the knowledge of deponent, except as to the matters which are therein stated to be alleged on information and behef and as to those matters he believes it to be true. Deponent further says that he re- sides at , in the County of , State of New York, and the reason why this verification is made by deponent and not by the plaintiff (defendant) is that said plaintiff (defendant) is not within said County of , where the deponent 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 (defendant) is not within said County of New York and capable of making the affidavit. 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. 312 Bradbury's lawyers' manual Verification by Attorney or Agent of Foreign Corporation (// in either case, the pleading is on information and belief, the sources of the affiant's knowledge and the grounds of his belief as to all the matters not stated in the complaint as being within his knowledge, should be set forth.) Sworn to before me, this 1 A. B. day of , 19 . . {Signature and title of officer.) FORM NO. 201 Verification by Attorney or Agent of Foreign Corporation, Where the Allegations are Made Positively and not on Information and Belief (Code Civ. Pro., § 525) State of New York County of New York A. B., being duly sworn, deposes and says that he is the attorney (agent) for the plaintiff (defendant) in the above- entitled action and that the foregoing complaint (answer) is true to the knowledge of deponent except as to the matters which are therein stated to be alleged on information and as to those matters he believes it to be true. Sworn to before me, this 1 A. B. day of , 19 . J (Signature and title of officer) . FORM NO. 202 Verification by Agent or Attorney of Foreign Corporation Where Pleading is on Information and BeUef (Code Civ. Pro., § 525) State of New York County of New York A. B., being duly sworn, deposes and says that he is the attorney (agent) 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 ss: VERIFICATION 313 Verification by Attorney of Foreign Corporation which are therein stated to be alleged on information and be- lief and that as to those matters he beheves it to be true. The sources of deponent's knowledge and the ground of his belief as to all the matters not stated upon his knowledge in said com- plaint (answer) are as follows: {here state concisely the manner in which the affiant acquired knowledge of the facts as, for ex- ample, as follows:) Deponent has had a large number of con- versations 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 re- lating to a proposed 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, this 1 A. B. day of ■ , 19 . J ~ (Signature and title of offlcer.) FORM NO. 203 Verification by Attorney of Foreign Corporation Where the Answer Alleges that the Defendant has no Knowledge or Information Sufficient to Form a Belief (Code Civ. Pro., §§ 524-526) State and County of New York: ss: A. B., being duly sworn, says that he is the attorney for the above-named plaintiff (defendant) ;that the foregoing complaint (answer) is true to the knowledge of the deponent, except as to the matters which are therein stated to be alleged on informa- tion and beUef , and that as to those matters he beheves it to be true. Sworn to before me, this j A. B. day of , 19 . J (Signature and title of officer.) 314 Bradbury's lawyers' manual Notice to be Endorsed on Pleading FORM NO. 204 Verification of a Pleading on Behalf of tiie People of tiie State or a Public Officer in their Behalf by a Party Who is Acquainted with the Facts (Code Civ. Pro., § 525) State of New York County of New York J A. B., being duly sworn, deposes and says that he is {here state any connection which the deponent might have had vyith the transactions set forth in the pleading) ; that he is acquainted with the facts set forth in the foregoing complaint (answer) and that the said complaint (answer) is true to the knowledge of de- ponent (except as to the matters which are therein stated to be alleged on information and beUef, and that as to those matters he behoves it to be true). Sworn to before me this 1 A. B. day of , 19 . J (Signature and title of officer.) FORM NO. 205 Notice to be Endorsed on Pleading upon Returning the Same for Want of a Verification or Because of a Faulty Verification ^ (Code Civ. Pro., § 548) (// the notice is endorsed on the pleading itself no title is neces- sary. If it is contained on a separate sheet which is fastened to '■ Where a pleading is returned because of a defect in its verification the objec- tion must be explicitly stated and the particular defect or omission pointed out, so the defendant may understand wherein it lies, and when such a notice is served of an intention to treat the pleading as a nulhty, because of such defect, the party who served the pleading is entitled to a reasonable opportunity after the service of such notice, in which to correct the error or supply the omission. Rosenthal v. Cohn, 55 Misc. 533; 105 Supp. 943; Snape v. Gilbert, 13 Hun, 494; Fusco v. Adams, 19 Civ. Pro. R. 48. Where the original answer was verified, but the copy served did not contain a verification, and the plaintiff returned it within twenty-four hours, it was held VERIFICATION 315 Notice to be Endorsed on Pleading the face of the pleading, prefix the same title as that contained in the pleading.) Please take notice, that the within answer (reply) is hereby returned to you on the ground that the same is not verified. Or, Please take notice, that the within answer (reply) is hereby returned to you on the ground that the verification thereof is defective for the following reason: (state concisely in what the defect consists), and the plaintiff (defendant) elects to treat the same as a nullity. Dated the day of , 19 . Yours, etc., Ely Franklin, Attorney for Plaintiff, (Defendant), No. 1 Nassau Street, To: Borough of Manhattan, G. H., Es 19 j for the account of the plaintiff herein. Deponent's time to answer expires on the day of ,19 , and no previous extension of time has been heretofore granted either by stipulation or order. Sworn to before me this 1 C. D. j£j day of , 19 . J (Signature and title of officer.) FORM NO. 225 Affidavit of Attorney on Securing Ejrtension of Time to Plead Ex Parte (Rule 24, Gen. Rules of Prac.) (Title Same as Last Form) ss: State of New York County of New York G. H., being duly sworn, says that he resides at No. , Street, Borough of Manhattan, City of New York; that he is the attorney retained to defend the above- entitled action; that from the statement of the case made to him by the defendant he 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. Sworn to before me, this 1 G. H. day of , 19 . j (Signature and title of officer.) EXTENSION OF TIME 347 Judge's Order Extending Time to Plead on an Ex Parte Application FORM NO. 226 Judge's Order Extending Time to Plead on an Ex Parte Application ^ (Code Civ. Pro., § 768; Rules 23 and 24, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavits of C. D., sworn to the day of , 19 , and G. H., sworn to the day of , 19 , and on motion of G. H., attorney for the defendant, it is hereby Ordered, that the time of the defendant to answer, demur or otherwise move as to the complaint herein be and the same hereby is extended twenty days from the day of ,19 . Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. 1 If the application is made ex parte it should be made in New York County, at Special Term, Part II. But if the time has already been extended twenty days by stipulation or order then a further extension can be made only on two days' notice to the adverse party in which event the motion would be made in New York County at Special Term, Part I, and the order, when entered, would be a court order instead of a judge's order. See Rule 24, Gen. Rules of Prac. A mo- tion for an order extending time to plead, however, may be made to a judge, even though on notice. Code Civ. Pro., § 768. In the First District, however all motions on notice must be heard at Special Term, Part I, unless by special rules in that district they are required to be heard at another place. Rule 37, Gen. Rules of Prac. 348 Bradbury's lawyers' manual Notice of Motion for Extension of Time to Plead FORM NO. 227 Notice of Motion for Extension of Time to Plead (Code Civ. Pro., § 768; Rules 24 and 37, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against CD., Defendant. Please take notice that on the annexed affidavits of C. D., sworn to the day of j 19 , and of E. F., sworn to the day of > 19 , and on the complaint in this action, verified the day of ,19 , a motion will be made 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 Courthouse therein on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, for an order extending the time of the defendant hereto to answer, demur or otherwise move in relation to the complaint herein twenty days from the day of , 19 , and for such other, further and different relief as may be proper. Dated the day of , 19 . Yours, &c., To: Ely Franklin, G. H., Esq., Attorney for Defendant, Attorney for Plaintiff, No. 32 Nassau Street, No. 20 Broad Street, Borough of Manhattan, New York City. New York City. ' Under Code Civ. Pro., § 768, a motion on two dayis' notice for an extension of time may be made to a judge. But apparently under Rule 37 of the General Rules of Practice this does not apply to the First District. EXTENSION OF TIME 349 Order to Show Cause on Motion for an Extension of Time to Plead FORM NO. 228 Order to Show Cause on Motion for an Extension of Time to Plead New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavits of C. D., sworn to the day of , 19 , and G. H., sworn to the day of , 19 , let the plaintiff 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 Courthouse therein, on the day of , , 19 , at the opening of court, on that day or as soon thereafter as counsel can be heard, why the time of the defendant to plead, demur or otherwise move in respect to the complaint herein be extended twenty days from the day of , 19 . And it appearing to my satisfaction that it is necessary to shorten the time within which this motion shall be heard to less than two ^ days, it is hereby Ordered, that the service of this order on the attorney for ' It is not clear that an order to show cause is authorized, in such a case, shorten- ing the time within which the motion can be heard to less than two days. There is no direct authority for it, nor does there appear to be any contrary decision. The rules and statutes speak of shortening the time from five or eight days as the case may be, and under them the time is not infrequently shortened to one day. Under the inherent power of the court to grant a stay it may be that an order such as the one in the text could be supported but until there is some direct authority on the subject this practice is not advised when it can by any possi- bility be avoided. When a notice of two days is given and the moving party's time expires on the return day the attention of the court should be directed to the fact so there may be an immediate determination of the motion or there may be a temporary state granted or other appropriate relief may be afforded. 360 Bradbury's lawyers' manual Affidavit of Attorney on Motion to Secure Extension of Time to Plead the plaintiff, before five o'clock P. M. this day of , 19 , shall be deemed sufficient. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Com-t, of the State of New York. FORM NO. 229 Affidavit of Attorney on Motion to Secure Extension of Time to Plead, on Notice ^ (Rules 24 and 37, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York G. H., being duly sworn, deposes and says that he is the attorney retained to defend the above-entitled action and that from the statement of the case made to him by the defendant he 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 action is brought for money had and received, it being alleged in the complaint that the defendant CD., received from one L. M., on or about the ' There should be annexed to this affidavit the affidavit of the defendant or good reasons given why the defendant's affidavit is not presented. For form of defendant's affidavit see Form No. 224. EXTENSION OF TIME 351 Affidavit of Attorney on Motion to Secure Extension of Time to Plead day of , 19 , the sum of dollars, for the account of the plaintiff, A. B., and that the defendant, CD., has failed and refused to turn over the same to the plaintiff upon demand. Deponent further says that ever since the summons and complaint were turned over to him he has been actively en- gaged in court and has been unable to secure appropriate time to draw the answer hereto because of such engagements. Deponent further says that it is also necessary for him to confer with the defendant and the said person from whom the said defendant is alleged to have received the said sum stated in the complaint and deponent has been unable to see the said L. M. because of the absence of the said L. M. from the State and he is expected to return to town on or about the day of , 19 , as deponent has learned from in- quiring of the persons in charge of the office of said L. M., at Street, in the Borough of Manhattan, City, County and State of New York. The time of the defendant to answer, demur or move in respect to the complaint has been extended by stipulation for twenty days and said stipulation expires on the day of , 19 . Deponent has applied to the plaintiff's attorney for a further extension of time to plead or otherwise move as to the com- plaint and said plaintiff's attorney has refused to grant such extension. The time of the defendant to plead or otherwise move to the complaint will expire on the day of , 19 , by reason of which it will be impossible for the plaintiff to give two days' notice of motion as the defendant would be in de- fault prior to the time such a motion should be heard and a decision rendered thereon and deponent therefore asks for an order to show cause returnable to-morrow. This action is not yet at issue and the time appointed for holding the next Trial Term where the action is triable is the Trial Term of the New York Supreme Court, beginning the day of , 19 . 352 Bradbury's lawyers' manual Court Order Granting, Extension of Time to Plead on Notice No previous application for such an order had been made. Sworn to before me, this 1 G. H. day of , 19 . J {Signature and title of officer.) FORM NO. 230 Court Order Granting Extension of Time to Plead on Notice ^ At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the Coimty Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. Adam Brown, Plaintiff, against Charles Darwin, Defendant. A motion having been regularly made by the defendant above named to extend the time of the defendant to answer, demm- or otherwise move in respect to the complaint in this action, and said motion having come on regularly to be heard, now on reading and filing the notice of motion, dated the day of , 19 , and the affidavits of C. D. and E. F., sworn to the day of , 19 , with due proof (admission) of service thereof on the plaintiff's attorney, in favor of said motion, and after reading the com- plaint (heretofore filed in the office of the Clerk of the County of New York) and the affidavits of A. B. and G. H., verified the day of , 19 , in opposition thereto, and after hearing E. F., Esq., attorney for the defendant in favor of said motion, and G. H., Esq., the attorney for the 1 In other districts than the First this order may be made by a judge even though it is on two days' notice. Code Civ. Pro., § 768. See Rule 37, Gen. Rules of Prac. EXTENSION OF TIME 353 Court Order Granting Extension of Time to Plead on Notice plaintiff in opposition thereto, and due deliberation having been had, Now, on motion of E. F., Esq., attorney for the plaintiff, it is hereby Ordered, that said motion be and the same hereby is granted and that the time of the defendant to answer, demur or other- wise move in respect to the complaint herein, be and the same hereby is extended twenty days from the day of ,19 . Enter, P. A. H., J. S. C. CHAPTER XXI DEFAULTS ^ FORMS NO. PAGE NO. PAGE 231. Endorsement on papers in 234. Affidavit of defendant on no- supplementary proceedings tice of motion to open de- noting the default of the fault in pleading 360 judgment debtor in ap- 235. Affidavit by attorney on mo- pearing 354 tion to open default, to 232. Affidavit of regularity in accompany the affidavit of moving for judgment on the party 362 default in actions of fore- 236. Order to show cause on mo- closure, partition and the tion to open default in like 355 pleading 363 233. Notice of motion to open de- 237. Court order opening default 364 fault 359 FORM NO. 231 Endorsement on Papers in Supplementary Proceedings Noting the Default of the Judgment Debtor in Appearing The within named judgment debtor, C. D., having been duly called in open court at o'clock, A. M. {the '■ For proceedings when judgment is taken by default for failure to appear or plead see chapter on Judgments. The taking of defaults is a technical matter and it is necessary to observe all the rules and statutes to indicate clearly that the person whose default is to be taken is actually in default. The opening of defaults depends on entirely different principles, as the party who is asking to have a default opened is asking for a favor. On an application to open a default, therefore, the party making the ap- 'plication must show generally two things: first, that the getting in default was due to an excusable error or oversight; and, second, that the person whose default has been taken has a substantial defense to the order or decree which has thus been entered against him. It should be observed also, that a motion to open the default is in no sense similar to a motion to set aside an order or decree on the ground that such order or decree is jurisdictionally defective, or that there has been some irregularity in the pro- ceeding entitling the moving party to have the order or decree set aside as a matter of right. The most usual case, perhaps, where this distinction may be clearly 354 DEFAULTS 355 Affidavit of Regularity in Moving for Judgment time specified in the order for his appearing, either in the original order or at an adjournment of the hearing), and not answering or appearing, and having been duly called again at o'clock A. M. {half an hour later) and not appearing or answer- ing his default, is hereby noted. Dated the day of , 19 . L. M.,1 J. S. C. FORM NO. 232 Affidavit of Regularity in Moving for Judgment on Default in Actions of Foreclosure, Partition, and the Like New York Supreme Court, New York County. A. B., Plaintiff, against C.D.,E. F., G.H., I. J., and K. L., an Infant, by B. A ., his Guardian Ad Litem. Defendants. State of New York County of New York I. M. N., being duly sworn, deposes and says that he is the attorney for the plaintiff in the above-entitled action. illustrated is in relation to oases where the time has expired within which a de- fendant must appear or plead, after the service of the summons. If the defendant appears specially and contends that the summons was not served upon him at all, or was improperly served, and he is able to sustain this contention, then he is entitled, as a matter of right, to have the service set aside. But if the summons has been properly served and the defendant, through an error or oversight, has failed to appear within the time required, then the application is to open his ' The above initials are, of course, those of the judge before whom the order was returnable, or before whom the adjourned proceedings were returnable. If the hearing is held before a referee the initials should be those of the Referee with the word "Referee" underneath. 356 BRADBURY'S LAWYERS' MANUAL Affidavit of Regularity in Moving for Judgment II. This is an action (to foreclose a mortgage). III. The summons and complaint were duly served on the defendant, A. B., within the State of New York, on the day of , 19 , as appears by the affidavit of C. A., sworn to the day of 19 , which is hereto annexed and made a part of this application ; that more than twenty days have elapsed since said service and no copy ■ of an answer, demurrer or notice of appearance has been served on the plaintiff's attorney on behalf of said defendant, A. B. IV. The simmions and complaint were personally served on the defendant, C. D., within the State of New York on the day of , 19 , as appears by the affidavit of C. A., sworn to the day of , 19 , which is herewith submitted on this motion. The said de- fendant, C. D., thereafter appeared by his attorney, 0. R., by serving a notice of appearance on the plaintiff's attorney, on the day of , 19 , which notice of appearance is annexed hereto and made a part of this apphcation. That no further proceedings have been taken on behalf of the defend- ant, C. D., and no copy of an answer or demurrer has been served on behalf of the said C. D., on-the plaintiff's attorney, and more than twenty days have elapsed since the service of the summons and complaint on the said C. D. personally. V. The summons and complaint were duly served on the defendant, E. F., by publication, pursuant to an order entered herein in the office of the Clerk of the County of New York, on the day of , 19 , as appears by the affidavit of D. A., sworn to the day of 19 , which is hereto annexed and made a part of this appUca- default. In the first case the setting aside of the summons, upon showing that it was not served upon him, is a matter of right, and in the second place the de- fendant appeals to the discretion of the court to have his default opened, in which latter case of course, he must show both excusable error or oversight, and that he has a substantial defense. Defaults should always, when possible, be made a matter of record. Thus, in supplementary proceedings, where the judgment debtor does not appear upon the return day or upon the adjourned day, he should be called, in open court, by the court officer, and if he does not appear, there should be endorsed on the papers the fact as shown in Form No. 231 in the text. DEFAULTS 357 Affidavit of Regularity in Moving for Judgment tion. That said publication was begun on the day of ,19 , and was completed forty-two days there- after, to wit, on the day of ? 19 , and more than twenty days have elapsed since the last mentioned date and no notice of appearance, answer or demurrer has been served on the plaintiff's attorney on behalf of the said defendant, E. F. VI. The summons and complaint were served on the de- fendant, G. H., without the State of New York, to wit, in the State of New Jersey, on the day of , 19 , pursuant to an order entered herein, dated the day of ,19 , and duly filed in the office of the Clerk of the County of New York on the day of , 19 , as appears by the affidavit of F. A., sworn to the day of , 19 , which said affidavit of F. A. was duly filed in the office of the Clerk of the County of New York on the day of , 19 ; that more than thirty days have elapsed (see Code Civ. Pro., § 443, subd. 4) since said service without the State and no notice of appearance, answer or demurrer has been served on the plaintiff's attorney on behalf of the said defendant, G. H. VII. Deponent further says that the summons and com- plaint were duly served on the defendant, I. J., within the State of New York, on the day of , 19 , as appears by the affidavit of F. A., sworn to the day of , 19 , which is hereunto annexed and made a part of this application. That the defendant I. J., duly ap- peared by J. A., his attorney, on the day of ,19 , as appears by the notice of appearance hereunto annexed and made a part of this appHcation, and said I. J. also duly filed a waiver of notice of any further proceedings except notice of the sale of the property, which waiver is here- unto annexed and made a part of this application. No answer or demurrer has been served on the plaintiff's attorney on behalf of said I. J. VIII. The summons and complaint were duly served on the defendant, K. L., who is an infant under the age of fourteen 358 Bradbury's lawyers' manual Affidavit of Regularity in Moving for Judgment years within the State of New York, on the day of ,19 , as appears by the affidavit of F. A., sworn to the day of , 19 , and which is here- unto annexed and made a part of this application. Thereafter an order was duly made herein appointing L. A. as a person upon whom the summons must be served on behalf of the said infant, K. L., and said summons and complaint were duly served on said L. A., on the day of , 19 , as appears by the affidavit of J. A., sworn to the day of , 19 , which is hereunto annexed and made a part of this apphcation. Thereafter B. A. was duly appointed guardian ad litem for said infant defendant, K. L., and such infant defendant, K. L., by his said guardian ad litem, B. A., on the day of > 19 , duly served on the plaintiff's attorney a general answer submitting the rights of said infant defendant to the protection of the coiu-t, and said answer of said defendant, K. L., is hereimto annexed and made a part of this application. IX. All of the defendants, except the last defendant, K. L., are of full age and all of said defendants are in defaiilt except as herein stated and no extension of time has been granted either by stipulation or order to any of the defendants to ap- pear, answer or demur, except as above noted. X. No previous apphcation for judgment herein has been made. XI. Deponent therefore prays that an order of reference may be entered herein appointing a referee to compute the amount due on said bond and mortgage and that upon the coming in of the referee's report that judgment of foreclosure and sale may be entered according to law. Sworn to before me, this | M. N. day of , 19 . j {Signature and title of officer.) DEFAULTS 350 Notice of Motion to Open Default FORM NO. 233 Notice of Motion to Open Default New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice, that on the judgment roll entered in the above-entitled action in favor of the plaintiff against the defendant duly filed in the office of the Clerk of the County of New York, on the day of , 19 ^ and on the affidavits of C. D. and G. H., sworn to the day of , 19 , and on all the proceedings had in this action, a motion will be made 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 Courthouse therein, on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, for an order opening the defendant's default herein, and setting aside the judgment entered herein and the execution issued to the Sheriff of the County of New York on said judgment and for such other, further and different relief as may be proper. Dated the day of , 19 . Yours, &c.. To E. F., Esq., ' G. H., Attorney for Plaintiff, Attorney for Defendant. 20 Broad St., New York City. 360 Bradbury's lawyers' manual Affidavit of Defendant on Notice of Motion to Open Default in Pleading FORM NO. 234 Affidavit of Defendant on Notice of Motion to Open Default in Pleading New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State or New York County op New York I- ss City of New York j CD., being duly sworn, deposes and says that he is the de- fendant in the above-entitled action. The summons and com- plaint in this action were served on deponent at his office on the day of j 19 , just as deponent was about to leave town on an extended business trip covering a period of thirty days. Deponent called up the office of G. H., Esq., his attorney herein, but was unable to reach said G. H., as he was out of his office, and deponent thereupon directed a clerk in his office, E. F., to transmit the summons and com- plaint to the said G. H., so that the said G. H. could do what was necessary in relation to said action while deponent was absent. Deponent thereupon hurriedly left the office and did not return imtil more than twenty days had expired after the service of the summons and complaint on him. Upon de- ponent's return to the office he found the said summons and complaint still lying on his desk and upon inquiry of the said E. F. was advised by said E. F. that he had forgotten to send the summons and complaint to deponent's attorney, G. H., and did not give the matter any attention whatsoever. Deponent further says that the action herein is for the simi DEFAULTS 361 Affidavit of Defendant on Notice of Motion to Open Default in Pleading of dollars, with interest from the day of ,19 , on an alleged cause of action for goods, sold and dehvered. Deponent further says that he is not indebted to the plain- tiff in the sum mentioned in the complaint or in any sum on said cause of action, by reason of the fact that said goods were sold under a warranty as to quantity and quahty, and there was a breach of said warranty, of which deponent gave notice to the plaintiff in writing as soon as it was reasonably possible for the deponent to discover said breach upon an examination of the said goods, and deponent has been damaged in a sum greater than the amount stated in the complaint by reason of said breach.^ Deponent further says that he has fully and fairly stated the case to G. H., Esq., his counsel herein, who resides at No. Street, in the Borough of Manhattan, City of New York, and that he has a good and substantial defense on the merits to the action as he is advised by his said counsel after such statement and verily believes to be true. Deponent further says that he requests that an order to show cause may be made herein returnable in less than five days for the reason that the plaintiff has entered judgment herein and placed an execution in the hands of the sheriff of New York County and the sheriff has made a levy on de- ponent's property and deponent will be greatly prejudiced by such levy imless this motion is brought on for argument in a shorter time than it could be brought on under an ordinary notice of motion. Deponent therefore prays that such an order to show cause may be made and that upon the return of said order a further order may be made opening deponent's default and permitting him to interpose an answer or otherwise plead or move in respect to the complaint, and that until the determination of '■ Where after various extensions of time to answer a verified complaint the de- fendant served an unverified answer which was returned, it was held that the default should not be opened with permission to answer, without proof that there was a meritorious defense. Dehn v. Sherman, 136 App. Div. 89; 120 Supp. 639. 362 Bradbury's lawyers' manual Affidavit by Attorney on Motion to Open Default such motion the plaintiff and the sheriff of the County of New York may be stayed from any further proceeding under said judgment and execution, and that he may have such other, further and different reUef as may be proper. Sworn to before me, this ] C. D. day of , 19 . J (Signature and title of officer.) FORM NO. 235 Affidavit by Attorney on Motion to Open Default, to Accompany the Affidavit of the Party (Rules 24, 25 and 37 of the Gen. Rules of Prac.) New York Supreme Court, New York County. A. B, Plaintiff, against C. D., Defendant. State of New York County OF New York ■ ss: City of New York G. H., being duly sworn, deposes and says that he is the attorney and counsel for the defendant in the above-entitled action and that he resides at No. , Street, in the Borough of Manhattan, City, County and State of New York. That he had been retained to defend this action and from the statement of the case made to deponent by the defendant, CD., 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 no previous application ^ for an ' Rule 25, Gen. Rules of Prac. If the matter is to be brought up on an ordinary notice of motion it is not neces- DEFAULTS 363 Order to Show Cause on Motion to Open Default in Pleading order to show cause has been made and that this action is not yet at issue and the next trial term where said action is triable is appointed to be held in and for the County of New York, beginning on the day of ,19 . Sworn to before me this G. H. day of , 19 {Signature and title of officer.) FORM NO. 236 Order to Show Cause on Motion to Open Default in Pleading New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavits of C. D., sworn to the day of , 19 , and G. H., sworn to the day of , 19 , and on all proceedings in this action, let the plaintiff 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 Courthouse therein, on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, why an order should not be made herein opening the defend- ant's default and setting aside the judgment entered herein in the office of the Clerk of the County of New York, on the day of , 19 , and permitting the de- fendant to answer, demur or otherwise move in respect to the complaint herein, and it appearing to my satisfaction that said sary that there should be anything in the affidavit about a previous application, nor is it necessary that there should be anything in the affidavit about the neces- sity of securing an order to show cause or of shortening the time within which the motion is to be heard. 364 bradbuky's lawyers' manual Court Order Opening Default motion should be brought on in less time than would be re- quired under an ordinary notice of motion, service of this order on the attorney for the plaintiff, on or before the day of , 19 , shall be deemed sufficient; and until the further order of the court all proceedings on the part of the plaintiff and the Sheriff of the County of New York under said judgment and the execution issued thereon are hereby stayed. Dated the day of ,19 Peter A. Hendrick, Justice of the Supreme Court of the State of New York. FORM NO. 237 Court Order Opening Default At Special Term, Part I, of the New York Supreme Court, held in and for the Coimty of New York, at the Coimty Co\irt- house therein, on the day of , 19 . Present : Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. A motion having been regularly made by C. D. above named, to open his default, in pleading to the complaint herein, and said motion having come on regularly to be heard, now after reading the complaint attached to the judgment roll herein which was duly filed in the office of the Clerk of the County of New York on the day of , 19 , and after reading and filing the notice of motion, dated the day of , 19 , with the affidavits of C. D. and G. H., sworn to the day of , 19 , with due proof (admission) of service thereof, in favor of said motion, and the affidavits of A. B. and E. F., sworn to the day DEFAULTS 365 Court Order Opening Default of , 19 , in opposition thereto, and after hearing G. H., Esq., attorney for the defendant, in favor of said motion, and E. F., Esq., attorney for the plaintiff, in opposition thereto, and due dehberation having been had, it is, On motion of G. H., attorney for the defendant, hereby Oedered, that said motion be and the same hereby is granted and the judgment entered in the above-entitled action, in favor of A. B., plaintiff, against C. D., defendant, for the sum of dollars, which was filed in the office of the Clerk of the County of New York, on the day of , 19 , be and the same hereby is set aside and annulled and the execution issued on said judgment to the Sheriff of the Comity of New York, is hereby set aside and vacated; on condition that the defendant pay to the plaintiff's attorney, within ten days after the service of a copy of this order, with notice of entry on the defendant's attorney, the sum of dollars, costs allowed to the plaintiff (and that the de- fendant serve upon the plaintiff's attorney within the same length of time a surety company bond in the sum of dollars, conditioned that the said defendant will pay to the said plaintiff any judgment which may be secured in this action not exceeding the sum of dollars) and upon the payment of said sima of dollars costs (and the furnishing of said bond) the time of the defendant to answer, demur or otherwise move as to the complaint herein, shall be extended twenty days from the service of a copy of this order with notice of entry on the defendant's attorney, and in de- fault of the payment of said costs within said time (and the furnishing of said bond) then said motion to open the defend- ant's default shall be deemed denied with ten dollars costs to the plaintiff against the defendant, and pending the payment of said costs and the furnishing of said bond, said judgment and any levy made by the Sheriff of the County of New York imder the execution issued thereon, shall stand and remain in full force and virtue. Enter, P. A. H., J. S. C. CHAPTER XXII AFFIDAVIT OF MERITS FORMS NO. PAGE NO. PAGE 238. Affidavitof merits of party.. 366 239. Affidavit of merits of at- torney 367 FORM NO. 238 Affidavit of Merits of Party ^ (Rule 23, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against CD, Defendant. State of New York County of New York Us: City of New York C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action; that he has fully and fairly stated the case to E. F., his counsel herein, who resides ' The forms of affidavits of merits by a party and by an attorney given here- with are what may be called formal affidavits of merits. Under Rule 23 of the General Rules of Practice, however, the form given for a party is not sufficient when an application is made which is dilatory in nature. In such a case the party must set forth the facts, showing that he has a meritorious defense. The af- fidavit by the attorney, however, is sufficient if the form given in the text is followed, provided of course there is a sufficient affidavit by the party showing actual merits. The form of affidavit of merits for a party given in the text is sufficient to prevent judgment being entered as by default in those rare cases in which an unverified answer is served to an unverified complaint, 366 AFFIDAVIT OF MERITS 367 Affidavit of Merits of Attorney at No. , Street, in the Borough of Manhattan, City of New York, and that he has a good and substantial defense on the merits to the action as he is advised by said counsel after such statement and verily believes. Sworn to before me, this day of , 19 , {Signature and title of officer.) C. D. FORM NO. 239 Affidavit of Merits of Attorney (Rule 24, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State op New York City of New York ►ss: County of New York G. H., being duly sworn, deposes and says that he resides at No. , Street, in the Borough of Manhattan, City, County and State of New York. That he is the attorney and counsel retained to defend the above-entitled action and that from the statement made to deponent by the defendant herein, he verily beUeves 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. Sworn to before me, this day of , 19 . , {Signature and title of officer.) G. H. NO, 240. 241. 242. 243. 244. CHAPTER XXIII MOTIONS AND ORDEES^ FORMS PAGE NO. PAGE General form of notice of tion when it is desired to motion 368 shorten the time within Cross notice that a party which the motion is to be against whom a motion has heard 373 been made will ask for af- 245. Note of issue for motion 375 firmative relief 371 246. Notice of settlement of or- Recital in notice of motion der to be endorsed thereon 375 about answering affidavits 247. General form of judge's order 376 when a notice of motion of 248. General form of court order 378 ten days is given 372 249. Order resettling previous General form of affidavit to order denying motion to secure order to show cause 372 vacate attachment 379 General form of order to show 250. Notice of entry to be en- oause made by the judge dorsed on order 382 used in lieu of notice of mo- FORM NO. 240 General Form of Notice of Motion ^ New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice, that on the annexed affidavits of E. F. and G. H., sworn to the day of , ' There are many motions made in the course of an actual trial of an action, and many orders are made, which are merely entered either in the stenographer's minutes or in the minutes of the clerk. But this chapter refers to motions and orders other than those just specified. It deals with the general principles in rela- tion to all the independent motions which are incident to an action, but which are usually made either before or after the actual trial, 2 Motions are almost invariably brought on either by an ordinary notice of 368 MOTIONS AND ORDERS 3&9 General Form of Notice of Motion 19 , and on the summons and complaint in this action, which complaint was duly verified the day of , 19 , and heretofore filed iii the office of the clerk of the County of New York and on all proceedings had therein a motion will be made at Special Term, Part I, of the New York Supreme Coxu"t, held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , at the opening of court on that day or as soon thereafter as coimsel can be heard, for an order {here state specifically the relief which will he demanded) (if the motion is made on the ground of irregularity in a prior proceeding, order or judgment state spe- cifically the irregularity of which complaint was made, otherwise motion, which is signed by the attorney for the party making the motion, or by an order to show cause, which takes the place of a notice of motion. The differ- ence between these two methods of bringing a motion on for a hearing is im- portant. Usually resort is had to an order to show cause only when it is desired to shorten the time within which the motion can> be made, or it is necessary to secure a temporary stay pending the hearing on the motion, so that the rights of the party making the motion may not be unduly prejudiced, until the court can determine whether or not the reUef requested shall be granted. In a considerable number of cases, however, certain special proceedings are originally brought on by an order to show cause instead of a notice of motion, this being required either by the specific provision of some statute or rule of court. In such a case of course, the question of time does not enter into the matter. That is, the time of such an order to show cause within which the motion is to be heard after service of the order, is the same as it would be under an ordinary notice of motion, unless there is some particular statute or rule requiring the order to be returnable within a specified time therein stated. There are a number of technical requirements in regard to orders to show cause which do not apply to ordinary notices of motion at all. In the first place there must be some special reason stated in the affidavit on which the order to show cause is secured, why the time should be shortened. It must also always appear that no previous application for such an order has been made, or if such an ap- plication has been made, the particulars in regard thereto must be stated, so that the judge who is asked to issue the order to show cause may see whether or not such an order is proper. Rule 25, Gen. Rules of Prac. Moreover, where an order to show cause is requested there must always be the statement required by Rule 37 of the General Rules of Practice, stating the present condition of the action and whether at isstie and if not yet tried, the time appointed for holding the next special or trial term where the action is triable. These requirements as to previous appUcation and the present condition of the action and where triable are ap- plicable only to orders to show cause shortening the time. 370 Bradbury's lawyers' manual General Form of Notice of Motion it will be disregarded on the motion),^ and for such other, further ^ and different rehef as may be proper, with the costs of this motion. Answering affidavits must be served five days before the return day.' Dated the day of , 19 . Yours, etc., Hiram Mann, Attorney for Plaintiff (Defendant), To Robert Rowland, Esq., No. 31 Nassau St., Attorney for Plaintiff (Defendant), New York City. No. 141 Broadway, New York City. 1 When a motion is for irregularity the notice of motion or the order shall specify the irregularity complained of. Rule 37, Gen. Rules of Prac. It is important that this rule should be observed, otherwise the motion may be dismissed or the relief denied without consideration of the merits of the motion. ^ "The party making a motion may in the notice thereof specify one or more kinds of relief in the alternative or otherwise and the adverse party must , when at least eight days' notice of motion shall be given, at least one day prior to the time on which the motion is noticed to be heard, jgixg upon the attorney for the moving party copies of the affidavits and papers which he expects to read in opposition to the motion } he may, at least three days prior to the time on which the motion is noticed to be heard, serve upon the attorney for the moving party a notice, with or without affidavits or other papers in support thereof, specifying any kinds of reUet in the alternative or otherwise to which he claims to be entitled in the matter, whether the relief so asked for be responsive or not to the relief asked for by the moving party." Code Civ. Pro., § 768. The court has very broad powers to amend proceedings on motions, either by supplying additional affidavits at the time of the motion or after a motion has been made and an order entered, such defects being supplied nunc pro tunc, under such terms as the court may order, except, however, that where the proceedings are made nunc pro tunc the intervening rights of parties are not to be prejudiced. Code Civ. Pro., § 768. ^ If a notice of motion is served ten days before the return day thereof it may, immediately after the prayer for rehef, and before the signature, contain the following statement: "Answering affidavits must be served five days before the return day," in which case answering affidavits, in order to be used upon the motion, must be so served. The moving party upon receiving such answering affidavits may serve affidavits in reply at least two days before the hearing. Such replying affidavit shall be limited strictly to matters of reply.\/Affidavits in answer and reply cait not be read upon the motion if not so served unless the court, in its discretion, for a good cause, shall otherwise order. Rule 37, Gen. Rules of Prac. MOTIONS AND ORDERS 371 Cross Notice FORM NO. 241 Cross Notice that a Party Against Whom a Motion has been Made Will Ask for Affirmative Relief ' (Code Civ. Pro., § 768) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice, that on the argument of the motion of the plaintiff for judgment on the pleadings herein, which is noticed for the day of , 19 , at Special Term, Part I, of the New York Supreme Court, the defendant will ask for affirmative relief for judgment on the pleadings dismissing the complaint, with costs. {Or otherwise state the affirmative relief which mill he demanded and specify any papers which will he read in support of such demand.) Dated , 19 . To Hiram Mann, Esq., Yours, etc., Attorney for Plaintiff, Robert Rowland, No. 31 Nassau St., Attorney for Defendant, New York City. No. 141 Broadway, New York City. 1 If a notice of motion of eight days is given on the original application this cross notice may be served three days prior to the time the original motion is noticed to be heard. The relief demanded in such a cross notice need not be responsive to the original motion. Code Civ. Pro., § 768. 372 beadbuey's lawyees' manual General Form of Affidavit to Secure Order to Show Cause FORM NO. 242 Recital in Notice of Motion about Answering Affidavits when a Notice of Motion of Ten Days is Given ' (Rule 37 of the Gen. Rules of Prao.) Answering affidavits must be served five days before the return day. FORM NO. 243 General Form of Affidavit to Secure Order to Show Cause ^ New York Supreme Court, New York County. Adam Beown, Plaintiff, against Chaeles Daewin, Defendant. State of New York ] County of New Yoek J Charles Darwin, being duly sworn, deposes and says that he is the defendant in the above-entitled action. This action is brought to recover (here state concisely the cause of action). (Here state any other facts in relation to the cause of action or the relief which is required.) (Here state the reasons why it is desirable to bring the motion ' If a notice of motion is served ten days before the return day it may im- mediately after the prayer for relief and before the signature, contain a state- ment in accordance with the form in the text, in which case answering affidavits in order to be used upon the motion must be so served. The moving party upon receiving such answering affidavits may serve affidavits in reply at less than two days before the hearing. Such replying affidavits shall be limited strictly to matters in reply. Affidavits and answer and reply cannot be read upon the mo- tion if not so served unless the court in its discretion for good cause shown, may otherwise order. Rule 37, Gen. Rules of Prac. 2 See notes to Form No. 240. MOTIONS AND ORDERS 373 General Form of Order to Show Cause on within a shorter period than eight days if the attorneys do not have their offices in the same city or village, and within a period of less than five days if the attorneys on both sides have their offices in the same city or village.) This action is not yet at issue (or if it is at issue, state the fact), and the time appointed for the holding of the next Special (Trial) Term where the action is triable is the first Monday of . ,19 .' No previous application for an order to show cause has been made. (If such ■ an application has been made state the facts and show how it is proper that a new application should be made.) Sworn to before me, this 1 Chakles D-arwin. day of , 19 . J (Signature and title of officer.) FORM NO. 244 General Form of Order to Show Cause Made by the Judge Used in Lieu of Notice of Motion When it is Desired to Shorten the Time Within Which the Motion is to be Heard ^ New York Supreme Court, New York Cotmty. Adam Brown, Plaintiff, against Charles Darwin, Defendant. On the annexed affidavit of Charles Darwin, sworn to the day of , 19 , and on the summons, ' The requirement of Rule 37 of the General Rules of Practice that the party who applies for an order returnable in less than five or eight days, as the case may be, to state the present condition of the action, and whether at issue and if not yet tried the time appointed for holding the next Special or Trial Term where the action is triable, while technical in nature, is enforced by the courts. Half- moon Bridge Co. v. The Canal Board, 156 App. Div. 880; 140 Supp. 1122 ; Cole v. Smith, 84 App. Div. 500; 82 Supp. 982; Sanger v. Connor, 95 App. Div. 621; 88 Supp. .1054; Proctor v. Soulier, 82 Hun, 353; 31 Supp. 472; Schiller v. Weinstein, 45 Misc. 591; 91 Supp. 76; Stryker v. Churchill, 39 Misc. 578; 80 Supp. 588. - See notes to Form No. 240. 374 bbadbury's lawyers' manual General Form of Order to Show Cause complaint ^ and answer in this action, which were heretofore filed in the office of the Clerk of the County of New York, and on all proceedings had herein (or specifically recite any other affidavits, papers, records or documents on which the motion is founded), let the plaintiff (defendant) 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 Courthouse therein on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard why an order should not be entered herein (here state specifically the relief demanded). (If the motion is made on the ground of an irregularity, state specifically the irregularity of which complaint is made) and why the defendant (plaintiff) should not have such other, further and different relief as may be proper, with costs of this motion. And sufficient reason having been shown therefor, the serv- ice of this order, together with the papers on which the same was granted on the attorney for the plaintiff (defendant) on or before the day of , 19 , shall be deemed sufficient. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. ^ The pleadings in an action shall at all times, when a motion is made therein, be deemed to be before the court, although not specificaUy referred to in the notice of motion. Code Civ. Pro., § 768. MOTIONS AND ORDERS 375 Notice of Settlement of Order to be Endorsed Thereon FORM NO. 245 Note of Issue for Motion ^ New York Supreme Court, New York County. Adam Brown, Plaintiff, against Chakles Darwin, Defendant. Motion to open defendant's default {or otherwise state the object of the motion) . Notice for argument for Special Term of this Supreme Court to be held at {state place) on the day of , 19 . Ely Franklin, attorney for the plaintiff and motion, 30 Broad Street, Borough of Manhattan, New York City. John Jones, attorney for defendant opposed, 141 Broadway, Borough of Manhattan, New York City. FORM NO. 246 Notice of Settlement of Order to be Endorsed Thereon * Please take notice that the within proposed order will be presented to Mr. Justice Hendrick, at Special Term, Part I, 1 In some jurisdictions a note of issue is not necessary for a motion as a regular calendar is not made up. But in most of the counties, such a note of issue is necessary and should be filed from one to two days before the return day so that the clerk may make up a calendar of motions. In the county of New York, where a motion is returnable in Special Term, Part I, it is not necessary now to file a note of issue, as the filing of the motion papers under the special rules in regard to Special Term, Part I, in New York County, has the effect of putting the case on the calendar without the formality of filing a note of issue. Unless there is some such special rule, however, a note of issue should be filed. 2 All orders do not require a notice of settlement. In New York County at 376 BRADBtJRY's LAWYERS' MANUAL General Form of Judge's Order of the New York Supreme Court, at the County Courthouse, New York County, on the day of , 19 > at o'clock A. M., for settlement and signature. Dated the day of , 19 . Yours, etc., G. H., To E. F., Esq., Attorney for Plaintiff (Defendant). Attorney for Defendant (Plaintiff). FORM NO. 247 General form of Judge's Order ^ New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. The plaintiff above named having duly moved for an order for the service of the siumnons by publication in the above- Special Term, Part I, ,the judge frequently enters a short form order without notice. But often notice of settlement is required, when it should be in the form in the text. '^ There is a technical rather than a substantial distinction between a court order and a judge's order. Nevertheless, the distinction is important and the rules and statutes in regard thereto must be complied with, or the order may be vacated for irregularity. There are some general rules applicable to the sub- ject, many of which are not found in any particular statute or special rule of court. In considering these general rules, however, regard must always be had to specific statutes or particular rules of court, for in some instances where, under general rules, a judge's order might be sufficient, there is some particular statute or some special rule requiring that a court order must be entered. The difference between a judge's order and a court order is that a judge's order does not contain a caption over the top and is signed at the bottom with the judge's full name, with the name of the court of which he is a judge, underneath his signature. In other words, in a judge's order at the top there is merely the title of the action and at the bottom there is a date and the full signature of the judge and the name of the court. In a court order there is a caption at the top, stating whether made MOTIONS AND ORDERS 377 General Form of Judge's Order entitled action on the defendant by service personally without the State, pursuant to law, Now, on reading and filing the verified complaint herein, duly verified the day of , 19 , the affi- davit of the plaintiff, Adam Brown, sworn to the day of , 19 , and of G. H., sworn to the day of , 19 , by which it appears that this is an action to foreclose a mortgage and that the defendant Charles Darwin is a nonresident of the State of New York and resides at No. , Street, in the City of in the State of New Jersey, and that said summons cannot be served on the defendant within the State of New York with due diligence. Now on motion of G. H., attorney for the plaintiff and no one appearing in opposition thereto, it is hereby Ordered {here recite the order which is made). Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. at a Special or a Trial Term, as exemplified by the forms in the text, and the name of the judge presiding at the court is inserted immediately over the title of the action. At the bottom there is usually the word "enter," with the name or ini- tials of the judge and the name of the court or the initials representing the judge of the court, such as "Justice of the Supreme Court^' or "J. S. C." In a court order as the date is contained at the top there is no necessity for inserting the date at the bottom. In some jurisdictions in the State the Judges do not initial court orders, but they are entered by the clerk following the judge's decision en- dorsed on the papers. In other jurisdictions, however, including New York County, the judge always initials the order before it is entered by the clerk. As before stated, there are many special rules modifying general rules. For example, ordinarily, where an order is made ex parte, that is, without a hearing, it is a judge's order. Likewise, almost invariably where the matter is brought up on notice, either by notice of motion or an order to show cause, and results in an order finally being made, this is a court order. But in many instances, the statutes and the rules of court require court orders, even where the application is made ex parte. Likewise the statutes provide in a few cases that where the application is made ex parte that the order may be made either by a judge or by the court. Likewise, also, but more infrequently, the statutes and rules provide that where an order is made after notice and hearing that it may be either a court order or a judge's order. If there is no special statute or rule covering a par- ticular case, however, the general rule holds, that an ex parte order is made by a 378 BRADBURY'S LAWYERS' MANUAL General Form of Court Order FORM NO. 248 General Form of Court Order ^ At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house in the Borough of Manhattan, City of New York, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. Adam Brown, Plaintiff, against Charles Darwin, Defendant. The defendant above named having regularly moved for an order for (here state concisely the relief demanded), on the ground that (if the motion is made on the ground of irregularity, in prior proceedings, specifically state the irregularity), Now, after reading and filing {state specifically all the papers on which the motion was heard and whether read and filed in behalf of the motion or in opposition thereto), and after hearing G. H., Esq., attorney for the plaintiff in favor, and E. F., Esq., attorney for the defendant in opposition thereto and due deliberation having been had, and on motion of G. H., attorney for the plaintiff (defendant), it is hereby Ordered (recite whatever the order may be made). Enter, P. A. H., J. S. C. judge and an order on notice is made by the court. Of course, there are many matters which are brought up on notice, and are required to be so brought, as to which there is no argument whatsoever, because the party against whom the order is made defaults. Nevertheless, in such cases the order is a court order, as if it was made after an actual argument. ' In New York County a special practice of entering "short form" orders on most motions has been adopted. But this is not general throughout the State. MOTIONS AND ORDERS 379 Order Re-Settling Previous Order Denying Motion to Vacate Attachment FORM NO. 249 Order Re-Settling Previous Order Denjring Motion to Vacate Attachment ^ At a Special Term, Part I, of the Supreme Court, held in and for the County of New York, at the County Courthouse therein, on the day of , 19 . Present: Hon. Alfred R. Page, Justice. Ernst Schreiber, Plaintiff, against Gem Stopper Company, Defendant. Upon the order entered herein on the day of ,19 , and upon the order to show cause signed by Mr. Justice Irving Lehman, dated the day of , 19 , and the affidavit of V. P. D., sworn to the day of , 19 , in support thereof, and the warrant of attachment, dated the day of , 19 , and the papers upon which said warrant was granted, being the summons and undertaking, and the affidavit of E. S., sworn to the day of , 19 , heretofore filed herein; and upon the notice of motion for resettlement herein, dated the day of , 19 , and after hearing B. & D., in support of said motion for settlement and no one appearing in opposition thereto, it is Ordered, that the order heretofore made and entered herein 1 From Schreiber v. Gem Stopper Co., 168 App. Div. 60; 153 Supp. 878. Orig- inally a short form order was entered by the court, denying the motion to vacate the attachment and the resettlement was had so as to show particularly the pro- ceedings had when the motion was brought on for argument, in that the plain- tiff's attorney objected to the papers, on the ground that there was not a com- pliance with Rule 37- of the General Rules of Practice, which was a preliminary objection taken before the argument of the motion. 380 Bradbury's lawyers' manual Order Re-Settling Previous Order Denying Motion to Vacate Attachment on the day of , 19 , be resettled, so as to read as follows : At a Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Alfred R. Page, Justice. Ernst Schreiber, Plaintiff, against Gem Stopper ^Company, Defendant. "The defendant in the above-entitled action having moved this coxu-t, by an order to show cause, for an order vacating and setting aside the warrant of attachment heretofore issued herein and dated the day of > 19 , upon the ground that the papers upon which the same was issued were insufficient on the face thereof, why the levy and levies made thereunder by the sheriff of the Coxmty of New York should not be vacated and set aside, and for such other and further relief as might be just, and the motion having regularly come on to be heard on the day of , 19 , before me the undersigned justice, and the defendant having appeared by H. & C, Esq., specially for the defendant, for the purposes of the motion and in support thereof, and the plaintiff having appeared by B. & D., Esq., in opposition to the same, and the counsel for the plaintiff having urged, as a preliminary objection to the hearing of the motion, that the affidavit upon which the order to show cause was granted did not comply with the requirements of Rule XXXVH of the General Rules of Practice, in that the same did not state a special and sufficient reason for requiring a shorter no.tice than five days, and did not state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next Special or Trial Term where MOTIONS AND ORDERS 381 Order Re-Settling Previous Order Denying Motion to Vacate Attachment the action is triable, and the Court having suggested that the defendant might file additional affidavits covering these points if it was so advised, and counsel for the defendant not deeming this essential and so stating to the Court, and not filing any further affidavit, and the Court having thereupon overruled the preliminary objection. "Now, upon reading the order to show cause, signed by Mr. Justice Irving Lehman, dated the day of , 19 , the affidavit of V. P. D., sworn to the day of , 19 , the warrant of attachment, dated the day of ? 19 , and the papers upon which the same was issued, to wit, the summons, dated the ' day of , 19 , the affidavit of E. S., sworn to the day of , 19 , and the ex- hibits thereto annexed, and the undertaking dated the day of , 19 , all heretofore filed herein, and after hearing P. D., Esq., of counsel for the defendant, in support of said motion, and W. M. G., Jr., Esq., of counsel for the plaintiff, in opposition thereto, and due deliberation having been had, it is, upon motion of B. & D., attorneys for the plaintiff, " Ordered that the said motion be, and the same hereby is, in all respects denied with ten dollars costs. " Enter, "Alfred R. Page, J. S. C." 382 Bradbury's lawyers' manual Notice of Entry to be Endorsed on Order FORM NO. 250 Notice of Entry to be Endorsed on Order ^ Please take notice that the within is a copy of an order duly entered in the office of the Clerk of the County of New York on the day of , 19 . Dated the day of , 19 . Yours, etc., G. H., To : A ttorney for Plaintiff (Defendant) . E. F., Esq., Attorney for Defendant (Plaintiff). ' A court order does not become effective until it is entered by the clerk. Wilcox V. National Shoe & Leather Bk., 67 App. Div. 466; 73 Supp. 900; Hastings v. Twenty-third Ward Land Co., 46 App. Div. 609; 61 Supp. 998; Matter of Lenox Corp., 57 App. Div. 515; 68 Supp. 103; aff'd 167 N. Y. 623. A short form order which is entered as a rule in New York County on most motions is signed by the judge when rendering his decision and is then filed and entered by the clerk without further proceedings on the part of the attorney. Otherwise it is necessary for the attorney to prepare the order and file it with the clerk who then enters it. CHAPTER XXIV ARREST FORMS NO. PAGE 251. Order of arrest 384 252. Complaint for fraud in sale of stock upon which order of arrest founded 387 253. Affidavit on securing order of arrest on the ground of fraud in inducing purchase of stock 390 254. Order of arrest 399 255. Affidavit to secure order of arrest; conversion of money by fiduciary 400 256. Additional affidavit on order of arrest for conversion of money by fiduciary 404 257. Additional affidavit on order of arrest for conversion of money by fiduciary 405 258. Affidavit of attorney in sup- port of order of arrest, upon renewing motion on ad- ditional affidavits, after first order had been refused 406 259. Complaint; submitted on ap- plication for order of arrest; conversion of property by fiduciary 407 260. Order of arrest when grounds therefor depends on ex- trinsic facts 409 261. Undertaking on order of ar- rest 411 262. Notice of motion to vacate order of arrest made on NO. PAGE the papers on which the order was granted 413 263. Afiidavit to secure order to show cause why order of arrest should not be va- cated, when motion to vacate is made on the pa- pers on which the order was granted 415 264. Order to show cause why order of arrest should not be vacated when the mo- tion to vacate is made on the papers on which the same was granted 416 265. Notice of motion to vacate order of arrest when based on affidavits 417 266. Affidavit on motion to vacate order of arrest 418 267. Order vacating (or refusing to vacate) order of arrest . . 419 268. Affidavit of nonresidence of defendant to secure an order of arrest under § 550 of the Code 420 269. Bail bond 422 270. Notice by plaintiff's attorney of nonacceptance of bail. . . 424 271. Notice of justification of bail 425 272. Approval of bail endorsed thereon by judge after jus- tification 426 ' Orders of arrest are granted in two general classes of actions. That is, they are granted where the right to arrest depends upon the nature of the action itself, and in certain other actions where there are extrinsic facts which give the right to 383 384 Bradbury's lawyers' manual Order of Arrest; Fraud FORM NO. 251 Order of Arrest; Fraud ' New York Supreme Court, Kings County. Akthur a. Rath, Plaintiff, against Roy H. McN aught and Erastus Weeden Clarke, Defendants. To the Sheriff of the County of New York: It having been made to appear to me by the affidavit of A. A. R., verified the day of , 19 , the amended complaint verified the day of , an arrest although the cause of action itself does not give such right. These two classes are governed respectively by §§ 549 and 550 of the Code of Civil Pro- cedure. The first class under § 549 includes practically all torts. The right under § 550 gives the right to arrest in an action where the decree could be en- forced by contempt proceedings and it appears that the defendant is either, not a resident of the State, or that if he is a resident he is about to depart there- from, by reason of which nonresidence or departure there is danger that a judg- ment or an order requiring the performance of the act will be rendered ineffectual. When the order is made under § 549 it is only necessary to show that the plain- tiff has a cause of action for one of the causes specified in the section. While the right to arrest is absolute, provided such a cause of action is shown in the papers, nevertheless, it is discretionary with the court whether or not to grant the order, to the extent that the court can determine whether or not the papers presented make out a sufficiently strong case to indicate that the plaintiff will probably succeed at the trial. Therefore, it is necessary to present much of the evidence in the nature of affidavits in applying for an order of arrest. The usual and al- most invariable method is to present a verified complaint and affidavits support- ing it, although a complaint is not absolutely essential on such an application in all cases. However, the better practice is to present a complaint and supporting affidavits than to present an affidavit alone and in some cases a complaint is absolutely essential. In securing an order under § 550, it is necessary to not only prove the cause of action, but also to prove the extrinsic facts with the same clearness that is required to prove the cause of action. In every case, to secure an order of arrest, it must appear either that an action has already been begun 1 See note to complaint. Form No. 252, following. ARREST 385 Order of Arrest, Fraud 19 , duly served upon the defendants on that day, the ex- amination before trial of defendant, R. H. McN., filed in the office of the Clerk of the County of Kings, on the day of , 19 , and the examination before trial of defendant E. W. C, fUed in the office of the Clerk of said by the service of the summons on the defendant, or the summons itself must be one of the papers upon which the application is founded. Where the action is for fraud in making the contract under subdivision 4 of § 549 there must be a complaint submitted in which it is alleged that the de- fendant was guilty of a fraud. Engelhardt Co. v. Benjamin, 2 App. Div. 91;, 37 Supp. 531. An affidavit upon an application for an order of arrest in an action for malicious prosecution should state facts showing malice and absence of probable cause. A mere statement that the criminal proceedings against the plaintiff was dis- missed is not per se, prima fade evidence of the want of probable cause, and where no other facts to establish malice and absence of probable cause are stated, the order of arrest will be vacated. Probable cause for arrest is not necessarily in- consistent with a finding that there is no probable cause of guilt. Reiss v. Levy, 165 App. Div. 1; 150 Supp. 440; Diad v. Shibley, 49 Misc. 315; 99 Supp. 188. Where the action is for fraud, if the complaint and affidavits on which the order is based are sufficient to make a prima fade case, the plaintiff is entitled to the order and the court will not determine the issue of fact, as to whether or not there was fraud, on conflicting affidavits, but will allow the order to stand until the trial. Rieben v. Frands, 29 App. Div. 676; 62 Supp. 851. It is only necessary that the affidavits upon which the order is granted shall make out a prima fade case of fraud. Rath v. McNaught, 158 App. Div. 906; 143 Supp. 1140. In an action to recover damages for a wrongful discharge of employment, an order of arrest is not justified under Code Civ. Pro., § 549, subdivision 4, by an allegation in the complaint of fraud in the making of the contract of employ- ment, and as such an allegation is mere surplusage and harmless and not relevant to the cause of action, the plaintiff is entitled to recover upon establishing a cause of action for breach of contract, regardless of such allegation. Novolny v. Kosloff, 214 N. y. 12; 108 N. E. 189; aff'g 159 App. Div. 478; 144 Supp. 652. In an action on promissory notes, where it is alleged and found that the de- fendants have been guilty of transferring real property in another State to de- fraud their creditors and particularly the plaintiff, the plaintiff to recover at all must prove the fraud, but it is no objection that the property alleged to have been transferred is real property in another State. Polo v. D'Achille, No. 1, 157 App. Div. 294; 142 Supp. 506. Under § 553 of the Code of Civil Procedure, providing that an order of arrest cannot be granted against a woman unless the action is to recover damages for a wilful injury to person, character or property, it has been held that where a woman purchased diamond earrings, on the installment plan, the contract pro- viding that the title was to remain in the vendor until the purchase price was fully paid, and that the vendor was entitled to possession in default of any of 386 Bradbury's lawyers' manual Order of Arrest, Fraud Kings County, on the day of , 19 , in an action entitled "Supreme Court, Kings County, Joseph F. Eastmond, plaintiff, against Roy H. McNaught and Erastus Weeden Clarke, defendants," and the testimony and minutes of the trial of said action of Eastmond against McNaught and Clarke, filed in the Kings County Clerk's office on the day of , 19 , that a sufficient cause of action exists against the defendants, Roy H. McNaught and Erastus Weeden Clarke, and that the case is one of these mentioned in section 549, subdivision 2 of the New York Code of Civil Procedure and that the ground of arrest is damages for fraud and deceit in inducing plaintiff to purchase certain shares of stock : You ARE HEREBY REQUIRED forthwith to arrest R. H. McN., one of the defendants in this action, if he be found within your county, and to hold him to bail in the sum of three thou- sand five hundred dollars, and to return this order with your proceedings thereunder as prescribed by law. Dated the day of , 19 . Abel E. Blackmar, M. A. B., Justice of the Supreme Court Attorney for Plaintiff. of the State of New York. the payments, that the refusal of the defendant to surrender the property after default constituted conversion of personal property, within the meaning of the section mentioned, which entitled the plaintiff to an order of arrest under Code Civ. Pro., § 549. Peoph ex rel. Hammond v. Becker, 143 Supp. 277. The defendant is not entitled to a discharge as a matter of right merely be- cause it appears on the face of the proceedings that the judgment has not been entered within the ten days after the plaintiff had a right to enter such judgment, but such a motion is directed to the discretion of the court, and must be denied where it appears that the plaintiff has proceeded duly and without unnecessary delay in entering the judgment. Pustet v. Twardowski, 92 Misc. 232; 155 Supp. 526. ARREST 387 Complaint for Fraud in Sale of Stock upon Which Order of Arrest Founded FORM NO. 252 Complaint for Fraud in Sale of Stock upon Which Order of Arrest Founded ^ New York Supreme Court, Kings County. A. A. R., Plaintiff, against R. H. MgN. and E. W. C, Defendants. The plaintiff, complaining of the defendants, alleges: First: That at all the times hereinafter mentioned the E. Co. was and still is a domestic corporation. Second: On information and belief that at all the times hereinafter mentioned the defendants owned a majority of the shares of the issued capital stock of the said corporation and were in active control and management thereof, the defendant McN. being the president of said corporation and the defend- ant, C, its secretary and treasurer. Third: That the defendants were familiar with the financial and business conditions of said corporation. Fourth: That the said defendants, contriving and con- spiring to defraud the plaintiff by selUng him stock of said corporation falsely and fraudulently represented to the plain- tiff that the corporation was doing a thriving, flourishing and profitable business, that its assets were of a value far in excess of its liabilities; that it had gained large profits the preceding 1 Adapted from Rath v. McNaught, 158 App. Div. 906; 143 Supp. 1140, in which an order of arrest was sustained on this complaint and the affidavit accompanying it, which is Form No. 253, in the text. The order of arrest is also Form No. 251 in the text. It will be seen that reference is therein made to the proceedings had in another action in which the same facts were involved. But the court held that the complaint and affidavit, which are reproduced in the text, were sufficient to make out a -prima facie case without reference to the proceedings in the other action. 388 BRADBURY'S LAWYERS' MANUAL Complaint for Fraud in Sale of Stock upon Which Order of Arrest Founded year and was then continuing to do so and was about to de- clare dividends upon such profits; that the stock was worth far in excess of par; and the defendants exhibited financial statements which showed that the said corporation was in a prosperous condition, which statements they represented to the plaintiff to be true. Said defendants further represented that there were only fifty shares of the stock of the said cor- poration for sale which was all the rest of the stock that be- longed to the defendant McN. and that the reason why said stock was on the market for sale was that said McN. was suffering from ill health and desirous of retiring from business. Said defendants further represented that the defendant, McN., had a person ready and able to purchase his stock at the price it was offered to the plaintiff, but that the defendant, C, had an option for the purchase thereof and rejected such offer, because the defendant, C, was desirous of selhng the stock to a business man like the plaintiff, who could devote his time and attention to the business of the said corporation. Fifth: The plaintiff, relying upon said representations and believing the same to be true,, on or about the day of , 19 , purchased fifty shares of the capital stock of the aforesaid corporation and paid therefor the smn of dollars, and at the same time entered into an agreement with the said corporation for the plaintiff's services. Sixth: Since said purchase the plaintiff has discovered that the said E. Co., at the time of the aforesaid representa- tions was and still is financially insolvent and imable to meet its obhgations; that it had not earned any profits; that the stock of the said corporation was actually valueless; that the defendant McN. was not suffering from ill health at the time, but on the contrary has always managed and continues to manage the business of said corporation ; that the stock which was sold to the plaintiff was not the rest of the stock of the defendant, McN.; and that the purpose of the defendants in selling said stock to the plaintiff was not to procure his serv- ices as a sales manager for the corporation, and on the contrary that at the time said representations were made to the plaintiff ARREST 389 Complaint for Fraud in Sale of Stock upon Which Order of Arrest Founded the said defendants had previously more than filled all the open positions of the said corporation by selling stock with promised positions to the purchasers. Seventh: All of the aforesaid representations of the defend- ants were false and fraudulent and were known to the defend- ants to be false and fraudulent. Said representations were made for the purpose of deceiving and actually did deceive the plaintiff and were made with such intent; and said de- fendants intended to and did cause plaintiff to beUeve that they had actual knowledge concerning the facts as stated and represented, although said defendants had no such knowledge and as a matter of fact had knowledge of facts sufficient to charge them with notice of the falsity of such representations, which facts were unknown to the plaintiffs and were concealed to him by the defendants. Eighth: That by reason thereof the plaintiff has been damaged in the sum of dollars, with interest thereon from the day of , 19 . Wherefore, the plain-tiff demands judgment against the defendant for the sum of dollars, with interest from the day of , 19 , with costs. B. A. B., Attorney for Plaintiff, No. 154 Nassau Street, Borough of Manhattan, New York City. [Verification.] 390 Bradbury's lawyers' manual Affidavit on Securing Order of Arrest FORM NO. 253 Affidavit on Securing Order of Arrest on the Ground of Fraud in Inducing Purchase of Stock ^ New York Supreme Court, Kings County. A. A. R., Plaintiff, against R. H. McN. and E. W. C, Defendants. State or New York County op New York ss. A. A. R., being duly sworn, deposes and says: I am the plaintiff in the above-entitled action and reside at No. , Street, Borough of Brooklyn, New York City. My attorney in this action is M. A. B., Esq., whose office is at No. , Nassau Street, Borough of Man- hattan, City of New York. The defendant, McN., has appeared herein by W. G. W., Esq., his attorney, whose office is at No. Wilham Street, Borough of Manhattan, New York City. The defendant C. has appeared herein by M. L. H., Esq., his attorney, whose office is at No. , Wall Street, Borough of Manhattan, New York City. The case has been duly noticed for trial and appeared upon the day calendar last May, but was adjourned to the October call. I verified the amended complaint on the day of , 19 , and on the same day it was duly served upon the de- fendants. I reiterate each and every allegation of my complaint which is hereby referred to and made a part of this affidavit. During the month of , 19 , I answered an ad- vertisement in the "New York World," a daily newspaper 1 Adapted from Rath v. McNaught, 158 App. Div. 906; 143 Supp. 1140. See note to preceding Form No. 252. ARREST 391 Affidavit on Securing Order of Arrest published in New York City, stating that "a man of business ability was wanted to purchase the interest of a retiring partner of a going concern" or in substance that. In answer to my letter I received a letter from one S. H., having an office in the Flatiron Building, New York City, inviting me to call, which I did. Mr. H. told me that there was a splendid opportunity of purchasing the interest of a retiring partner in a long estab- lished cement and garden statuary business known as the E. Co.; that this partner was about to retire because it was neces- sary for him to go west on account of ill health and there were only fifty shares that he had, which was the last block of stock available and which could be purchased for $115 per share. After some further conversation he gave me a letter of intro- duction to E. W. C, the treasurer of the E. Co. and one of the defendants herein. I visited E. W. C. at the studio of the E. Co., No. Madison Avenue, New York City, and he repeated to me that the busi- ness was in a flourishing condition; that there were no com- petitors in their line of business and it consequently was very profitable; that R. H. McN., the president, had been suffering from a nervous breakdown and was too ill to attend to business and was desirous of retiring therefrom; that there were only fifty shares of stock for sale, which was the balance of the stock that belonged to R. H. McN. and that R. H. McN. had stated to said E. W. C. that he, R. H. McN., had already had a person who was ready, able and willing to purchase the stock at the same figure, but he could not accept it because E. W. C. had an option for the purchase thereof from McN. and E. W. C. stated that he was desirous of exercising the option by selling the stock to a business man like myself, who could devote himself to the interest and business of the com- pany, and at the same time, he agreed that the company would employ me at $25 a week at the start and, a little later, would give me $50 a week, so long as I continued to hold stock. I told E. W. C. I did not see how I could be of value to him in that business, as I had been in the bakery business and knew 392 Bradbury's lawyers' manual Affidavit on Securing Order of Arrest nothing of the cement business and he replied that handling cement was like handling dough, and that I would quickly- become a very valuable man in the business and that he needed a man just of my calibre. A couple of days after, E. W. C. took me through the factory at Street and ex- plained some of the processes of manufacturing the cement productions, such as vases, garden settees, sundials, fountains, etc. I reflected upon the matter a day or two and telephoned E. W. C. that my wife and I had decided I should not buy the stock. Thereafter and on or about the day of , 19 , I received a letter from S. H., stating that E. W. C. had told him that he was very much disappointed at the attitude I took and that he had already completed arrangements for my coming into the company and that he was anxious to have Mrs. R. and myself meet E. W. C. at his office. Mr. H. also advised me that several other parties had bought stock and all were very well satisfied and were doing well in the employ of the company. That the stock was based upon solid assets; and that the company was a regular dividend earner; and that E. W. C. had given him figures showing that the company earned $60,000 net above everything in the past three and one-half years. Thereafter, I met E. W. C. at Mr. H.'s office and Mr. H. told me, in the presence of E. W. C, that I was making a big mistake; that the company had earned dividends the preceding year and asked E. W. C. to verify that statement. E. W. C. stated that the company had earned a substantial dividend the last year and had applied all of the profits to the comple- tion of its new studios, and that a new dividend was about to be declared during the same month of October and would be paid early in November. He stated that he himself would insist upon this, because he needed to realize money on his own stock. Mr. H. thereupon showed me a financial report from the Dun Commercial Agency which showed, among other things, that the assets of the corporation were greatly in excess of its liabilities and that there were undivided profits at that ARREST 393 Affidavit on Securing Order of Arrest time at some $41,000 in the concern. E. W. C. at that time, expressly stated that he would absolutely guarantee the cor- rectness and truth of that report. Mr. H. gave me a statement at the same time, reading as follows: "New York State Security Company, 'Phone Gramercy 6283 Manhattan, 814 Flatu-on Bldg. "We have an ornamental cement manufacturing, importing and retail business. It is an old business and an actual dividend earner. Owing to the ill-health of one of the two partners who own the business a substantial interest can be bought, at this time, by a good active partner having the best of refer- ences. There is no better systematized small business in New York than this one. They do business with the best grade of people, including the U. S. Government, the Rockefeller family, etc. Cash capital $75,000. Netted over $20,000 last year. Decorative benches, statues, sundials, balustrades, busts, etc., are handled." Both of the men told me that the business was an actual dividend earner; that the stock was worth far in excess of par; that I would be employed at a liberal salary with the company; that the opportunity was one I should not miss, as there were no other competitors in the field, which was very large. I thereupon agreed to purchase the stock. Later, and on October 18th, I met E. W. C. and R. H. McN. at the studio, and we went to luncheon at the Manhattan Hotel on 42d Street. R. H. McN. then repeated to me that he had been quite ill for some time past and had been compelled to remain away from business for some time, and that he desired to go West as quickly as possible. I then gave him a check for $1,500, and one promissory note of $4,000 payable January 1, 1910, and a promissory note of $190, payable at the same time. I was not to secure the certificate of stock until it was com- pletely paid for. One day in November, I saw one J. F. E. come into the studio, and I thought he was just a draftsman, but he told me 394 Bradbury's lawyers' manual Affidavit on Securing Order of Arrest he was a stockholder and had bought fifty shares of stock at 115 as I had, at which I expressed great surprise, as I had been told that there was no other stock to be had. In the month of , 19 , a meeting of the stock- holders was called and the defendant, R. H. McN., stated to all of the stockholders that their shares were worthless if the stockholders did not respond immediately and put in several thousand dollars to help the company with money. Most of the stockholders had bought their stock as I had and they ac- quiesced to putting up more money to save, as they thought, that which they had already invested. There were no signs of illness on the part of R. W. McN. since the day of the luncheon. On the contrary, he had been in attendance upon the affairs of the company each day I was there. Instead of retiring he continued as active manager and in active control of the corporation. J. F. E., mentioned above, brought an action against these defendants for fraud and deceit, which action was tried before Mr. Justice Kelby of this court and a jury, last May, and resulted in a verdict for Mr. E. for the amount he had invested in the sum of dollars, with full interest and costs. An order of arrest in his action was issued by Mr. Justice Stapleton, pendente lite, and a body execution on the judg- ment has been issued because the personal property execution was returned unsatisfied. R. H. McN. and E. W. C. were examined before trial at length in that action. The examina- tion of defendant, R. H. McN., before trial, in that action, was filed in the office of the clerk of the County of Kings, on the day of , 19 , and the examination before trial of defendant, E. W. C, was filed in said office on the day of , 19 , both such examina- tions are hereby made part hereof by reference thereto. The testimony and minutes of the trial, which are likewise filed in the same office, are likewise made part hereof by reference thereto. On information and belief, the sources of such information and basis of such belief being the proceedings had in the said E. ARREST 395 Affidavit on Securing Order of Arrest action, defendants, R. H. McN. and E. W. C, entered into a conspiracy to unload large blocks of stock of the E. Co. for which they gave substantially nothing, to purchasers who were induced to buy upon representations of the flourishing condi- tion of the company and upon being given employment by the company at salaries greatly in excess of the needs of the company or of the value of such employes. The E. Co. was organized in 1907 with a capital of $75,000 and took over only the assets of the former H. E. & Co., which assets had been purchased by Col. James McN., the father of defendant, R. H. McN., for some $11,000. Said J. McN. secured all of the stock of the E. Co., and divided it between the defendants, for which it is almost im- possible, from the mass of evidence and testimony in the E. case, to determine what consideration, if any, each of these defendants gave for his share of the stock. In the latter part of 19 , R. H. McN. and E. W. C. devised the idea of unloading their stock and commenced advertising in the daily papers through oneS. H., that a splendid oppor- tunity to buy out the interest of a retiring partner in a going concern was available to a man with capital who could spend his time in the employ of the company. R. H. McN. was the retiring partner whose stock was sold to the various applicants, and E. W. C. shared in the proceeds of each sale. From that time and until I bought my stock in the fall of 19 , defendants had sold one W., one W., one C, one H., one H., one H., one D., one E. and one E. blocks of stock varying in amount from $2,500 to $10,000 each, and aggregating over $50,000 in all. McN. received his share of this money and C. received his share. McN. and C. had written agreements between themselves as to how" the proceeds of each sale should be divided, and the agreement existing between them at the time my stock was bought was dated May 21st, 1909, and provided, among other things, that they should divide equally all responsibility for the sales of any stock theretofore made or any sale of any stock thereafter to be made, whether such sale shall be C.'s stock or McN.'s stock. 396 Bradbury's lawyers' manual Affidavit on Securing Order of Arrest Large sums of the moneys received from the first purchasers were spent in fitting up the offices at the studio very elaborately, and McN. and C. would each receive $100 a week as salary. Each of the persons who bought stock was given a position of some sort with the company. D. and E. were given exactly the same job. H., who bought his stock soon discovered fraud and raised a "holler," as testified to by McN. himself, and H., going to C, received the return of his money without protest and without C. even communicating with McN.; and after such repayment C. told McN. that H. raised a protest and he had refunded his money, and McN. testified that he asked no questions about that; that he said nothing to C. and con- sented thereto. The moneys which McN. received from the H. sale were deducted from the subsequent accountings between the defendants, although the company did only a business of some 160,000 during the preceding year, a large portion of which was outstanding accoimts. These two defendants saddled the cor- poration with the yearly salaries of these various stockholders aggregating over $30,000, arid duplicated many of the posi- tions, or created new and unnecessary jobs for the investors. E. had arranged to purchase McN.'s stock, but secured C.'s stock instead, and when he, McN., was confronted with the fact that he gave C.'s stock to E., he stated that he and C. had had various stock transactions and transfers back and forth, and that this happened to be C.'s stock in his possession which C. had loaned him; that that fact need not make any difference; and E. should not care about that. E. had testified that he got a receipt from McN., but McN. wrote the receipt three different times before he got the wording to suit himself at the time of the sale of the stock to him. E. also testified that McN. had feigned illness, and stated about his desiring to go West, and that McN. had negotiated his sale to him wholly through C, who functioned in that instance, as in mine, and as in each instance of the other stock- holders, to receive the likely purchaser, explain the wonderful prospects and profits of the business, and that the company- needed a man just like the man that happened to be before ARREST 397 Affidavit on Securing Order of Arrest him, and when the negotiations had proceeded sufficiently far that tlic transaction should be closed, the prospective buyer was introduced to McN., always conveniently ill and about to go West, whose stock was sold to said purchaser. And, in each instance, C. received his share of the proceeds. Reports of expert accountants were shown E. somewhat simi- lar to the reports of the Dun and Bradstreet Agencies shown me, showing large dividends, which were wholly false. D. paid $10,000 for his stock and had exactly the same position that was given to E. Defendants personally secured the proceeds of each of the sales of stock, and the corporation was saddled with the salaries of each such stockholder who was given a contract of employment with the company for no consideration to the com- pany, so far as the purchase of the stock was concerned. At the time of the sale of the stock to me, the company was insolvent. Its telephone service had been discontinued for a time because of nonpayment; the gas had been shut off or threatened to be for the same reason; salaries of employes were constantly in arrears; the company was compelled to discount its bills with the Manufactiirers Commercial Com- pany, which charged it about ten per cent to discount its orders; wholly fictitious valuations were placed on merchandise on hand; valueless outstanding assets and open accounts, such as the Murray claim, testified to at length in the said E. proceedings, were accepted and inventoried at full value. When the two defendants practically cleaned out all of their stockholdings, a stockholders' meeting was called in January for the purpose of raising immediate funds to save the company. This was a little over sixty days after I bought my stock. Most of the stockholders accepted this statement of McN. and invested new money. Over ten thousand dollars addi- tional had been raised from them in March, 1910, and the petition in bankruptcy was filed in the month of June, 19 . The amended complaint and the answer herein are hereby referred tp and made part hereof. An application for an order of arrest herein was made before Mr. Justice Kelly, sitting at Special Term for ex parte matters 398 Bradbury's lawyers' manual Affidavit on Securing Order of Arrest of this Court last fall, and said justice stated that the papers submitted at that time were insufficient to justify the granting of the application, and he asked for the evidence taken upon the trial of the E. case, which was not then available and not submitted. The case on appeal in the action of J. F. E. against these defendants was filed in the County Clerk's office only a few days ago, on the day of , 19 , and this application is, therefore, renewed, as said evidence and testimony is now available and said case on appeal is hereby referred to and made part hereof. Mr. Justice Kelly did not deny the application on the merits, but simply for the insufficiency of the papers as then submitted. Said case on appeal shows conclusively that a stock jobbing arrangement was had between defendants McN. and C. The attention of the court is directed particularly to a contract between defendants, which was introduced in e\ddence in the E. action as plaintiff's exhibit 8, and is shown on page 280 of said case on appeal. That said agreement settled and ad- justed all the previous agreements and arrangements between the defendants and determined that both of them were jointly interested in the outstanding stock either in the name of C. or of McN., and provided that should any stock of either be sold in the future, both were to join equally in the proceeds. Paragraph "Thirteenth" of that same agreement provided that all sales made after the date thereof by either party should be deemed the transactions of both parties and both should be equally interested in the proceeds thereof and both should be equally liable for all obligations that might arise by reason of any such subsequent sales. Said testimony shows that C. and McN. shared in each and every transaction or sale of stock, although C. was the spokesman through whom they acted. Except as above stated, no previous application for an order of arrest has been made. Sworn to before me, this day of , 19 {Signature and title of officer.) A. A. R. ARREST 399 Order of Arrest FORM NO. 254 Order of Arrest ^ (Code Civ. Pro,, § 549) New York Supreme Court, New York County. M. S., . Plaintiff, against B. A. L. Defendant. To the Sheriff of the County of New York: It appearing to me by the affidavits of M. S., E. S. and B. G., verified the day of , 19 , and of G. E. J., verified the day of , 19 , and by the complaint in this action, duly verified the day of ,19 , that a sufficient cause of action exists in favor of the above-named plaintiff against the above-named defendant, B. A. L., under § 549 of the Code of Civil Procedure, and that the ground of arrest is the conversion or misapplica- tion of money received by the defendant as the agent for and on account of the plaintiff in a fiduciary capacity, in that the plaintiff delivered to the defendant his promissory notes to the amount of dollars, which defendant promised and agreed to procure to be discounted for the benefit of the plaintiff, and to return and deliver the proceeds thereof im- mediately to the plaintiff, and that the defendant procured the discount of said notes, concealed the same from the plain- tiff and has wrongfully and fraudulently embezzled and appro- priated the proceeds thereof, amounting to the sum of dollars, to his own use, and the plaintiff having duly given the imdertaking required by law, you are required forth- ' Adapted from Spiegel v. Levine, 161 App. Div. 764; 147 Supp. 78. 400 Bradbury's lawyers' manual Affidavit to Secure Order of Arrest; Conversion of Money by Fiduciary with to arrest B. A. L., the defendant in this action, if he can be found, within your county, and to hold him to bail in the sum of dollars, and return this order with your proceedings thereon as prescribed by law. Dated the day of , 19 . L. A. GlEGRICH, G. E. J., Esq.,1 Justice of the Supreme Court Attorney for Plaintiff, of the State of New York. No. 165 Broadway, Borough of Manhattan, New York City. FORM NO. 255 Affidavit to Secure Order of Arrest; Conversion of Money by Fiduciary ^ New York Supreme Court, New York County. M. S., Plaintiff, against B. A. L., Defendant. State of New York l CO * County of New York M. S., being duly sworn, deposes and says: I. That he is the plaintiff herein. II. That he has known the defendant, B. A. L., for some time past and that the said defendant has no regular place for the transaction of business in the City of New York, but has been occupied in the getting of contracts for the building 1 The order must be subscribed by the plaintiff's attorney as well as by the judge. 2 Adapted from Spiegel v. Levine, 161 App. Div. 764; 147 Supp. 78. See four succeeding forma and notes. ARREST 401 Affidavit to Secure Order of Arrest; Conversion of Money by Fiduciary of theatres for some time past and during the summer and fall of 19 , was in the offices of the plaintiff continuously. III. That on the day of , 19 , the defendant stated to the plaintiff that he, the defendant, could obtain for the plaintiff certain accommodation by way of having the plaintiff's promissory notes discounted, and stated and represented to the plaintiff that if the plaintiff would give to him, the defendant, notes to the amount of dollars, which was the amount the plaintiff stated that he could use, and make said notes payable to the defendant's order that the defendant would procure the same to be dis- counted and pay over the proceeds thereof to the plaintiff. IV. That the plaintiff thereupon, on said day of , 19 , duly made his fom- promissory notes, each to the order of the defendant, B. A. L., as follows: {here is set forth the particulars as to each note, giving the date, the amount, when and where payable and to whom payable) . V. That all of said notes were signed by the plaintiff and delivered to the defendant in the presence of B. G. The plain- tiff stated to the defendant, at the time of the delivery thereof, that the said notes were to be discounted by the defendant and the proceeds to be received were to be returned to the plaintiff and the said B. A. L., the defendant, promised and agreed to procure the discount of the said notes and immedi- ately return the proceeds thereof to the plaintiff. VI. That shortly after the day of , 19 , and within a week, the plaintiff learned that the de- fendant had gone to Bermuda and the plaintiff heard nothing further from the defendant for a period of about two months when the defendant returned to the City of New York and came to the plaintiff's office, and the plaintiff asked the de- fendant about the notes during the month of , 19 , and the defendant stated that the notes had not been dis- counted and that he would return them to the plaintiff and the plaintiff made repeated inquiries from the defendant and received the same answer. VII. On the day of , 19 ,. the due 402 Bradbury's lawyers' manual Affidavit to Secure Order of Arrest; Conversion of Money by Fiduciary date of two of said notes, and which were the only notes signed by the plaintiff which were due on that day, the plaintiff re- ceived word from the Bank that one of the said notes had been presented for payment and that H. S. & Co., of No. Fifth Avenue, New York City, had caused it to be presented. A person unknown to the plaintiff, who stated that he was of the firm last mentioned, called the plaintiff on the telephone and asked him if he intended paying the note, which said person told deponent he had discounted for said B. A. L., the defendant, and the plaintiff replied that he did not intend to pay the said note and, that said note has been protested for said nonpayment. Deponent believes that said firm will be hostile to the deponent because they will attempt to claim that they were the bona fide holders for value. VIII. Plaintiff is informed that the said firm of H. S. & Co. had received the said note in a business transaction from the H. R. C. Co., in Philadelphia, Pa., of which firoi E. M. S. was a member. Deponent called up said E. M. S. in Phila- delphia and said E. M. S. told deponent that he, said E. M. S., had discounted deponent's two notes of dollars each and said discounts in each instance had been made at the request of B. A. L., the defendant in this action, and said E. M. S. had paid the money therefor to said B. A. L. IX. That the reason deponent cannot get the affidavit of said E. M. S., is that he is at present in the City of Philadel- phia, Pa., and is a person hostile in interest to deponent as he will undoubtedly attempt to prove that he is a bona fide holder before maturity for value. X. That on the day of , 19 , de- ponent received notice of protest of the other note of dollars, given to said B. A. L., the defendant, and due on the day of ; 19 , and said note had also been presented to the Bank, the place payable in the said note. That on said day a person representing him- self to be from the office of S. D. M., an attorney at law, of No. Broadway, in New York City, called upon deponent and demanded payment of the said note of dol- ARREST 403 Affidavit to Secure Order of Arrest; Conversion of Money by Fiduciary lars, and from these sources deponent had received his infor- mation as to the discounting of all of the said notes. XL The reason deponent cannot get the affidavits of these persons is obvious for the reason that the persons who now claim to hold the notes, or who have discounted and paid m.oney therefor to B. A. L., the defendant, will, of necessity, claim to be the bona fide holders thereof, and to have no notice of the relation between said B. A. L. and the deponent. XII. That said B. A. L. was in deponent's office on the day of , 19 , and in the presence of deponent and of deponent's brother, E. S., stated that the said notes had not been discounted and that he would not deliver them to this deponent; but nevertheless on the day of , 19 , two of said notes discounted by said B. A. L., as afore- said, were presented to deponent for payment. XIII. That deponent has not received any of the proceeds of said notes, but that said defendant, B. A. L., has wrong- fully converted and appropriated the proceeds of said notes to his own use (although the plaintiff has duly demanded from said B. A. L., the said proceeds of said notes).' XIV. That said B. A. L., to plaintiff's knowledge, is finan- cially irresponsible and deponent fears that he will leave this jm-isdiction unless the order of arrest asked for herein is issued. That the said B. A. L. has no place of business in the City or State of New York and deponent fears that he may flee this jurisdiction momentarily. XV. That no previous apphcation for this or any other order of a similar nature has been made herein except to Mr. Justice Giegrich, on February 4, 1914.2 >■ In the original affidavit, on which the order of arrest was granted in this case, there was no allegation of a demand on the defendant for the money, and the court below set aside the order by reason of the failure to make a direct allegation of demand. The Appellate Division, however, held that the allegation that the money was embezzled by the defendant and wrongfully converted to his own use and had not been paid over to the plaintiff or any part thereof was suffi- cient, where it appeared that the money had been received in a fiduciary capacity, as it was held that it had been in this case. Spiegel v. Levine, 161 App. Div. 764; 147 Supp. 78. ^ In this case a previous application had been made to Mr. Justice Giegrich, 404 Bradbury's lawyers' manual Additional Affidavit on Order of Arrest for Conversion of Money by Fiduciary XVI. That the amount of money received by the said B. A. L. from the discount of said notes is the sum of dollars. Sworn to before me, this day of , 19 . {Signature and title of officer.) M. S. FORM NO. 256 Additional Affidavit on Order of Arrest for Conversion of Money by Fiduciary ' New York Supreme Court, New York County. M. S., Plaintiff, against B. A. L., Defendant. State of New York 1 JSS ' ■ B. G., being duly sworn, deposes and says that she is and has been for some time past the secretary of M. S., the plaintiff herein. That on the day of , 19 , at the office of M. S., she was called into the room where M. S., the plaintiff, and B. A. L., the defendant, were seated; that M. S. directed her to prepare four promissory notes to the order of B. A. L., two of which notes were for who finally granted the order, and who had refused the order in the first instance, on the ground that the affidavit of the persons who informed the plaintiff of the facts alleged on information and belief should be presented, or a reason given why the same was not produced. The plaintiff thereupon made a new affidavit and procured the affidavits in the text and also the affidavit of his attorney, show- ing the previous application, which is the third affidavit succeeding, and renewed the application. ' Adapted from Spiegel v. Lcpine, 161 App. Div. 764; 147 Supp. 78. This affidavit should be read in connection with Form No. 2.55, immediately pre- ceding, and also Forms Nos. 257, 258, and 259 succeeding. ARREST 405 Additional Affidavit on Order of Arrest for Conversion of Money by Fiduciary dollars each, payable months after date, at the Bank, in the City of New York, and two of which notes were for dollars each to the order of B. A. L., payable months after date, at the Bank in the City of New York. That she saw M. S., the plaintiff herein, sign the said notes and deUver them to the defendant, B. A. L., and the plaintiff at the time of the deUvery thereof said to the defendant, B. A. L., that these notes were to be discounted by B. A. L. and the proceeds paid over and returned to M. S., the plaintiff herein, and deponent recalls distinctly that the said B. A. L. stated that he would procure the discount of the said notes and that he would immediately pay over the proceeds to the plaintiff, M. S., and deponent, at the plaintiff's suggestion, made a note or memorandum of the said conversation in her stenographic book and that the note or memorandum thereof, is as hereinbefore set forth. Sworn to before me, this 1 B. G. day of , 19 . j [Signature and title of officer.) FORM NO. 257 Additional Affidavit on Order of Arrest for Conversion of Money by Fiduciary ^ {Title Same as Preceding Form) State of New York go Coui^TY OF New York B. S., being duly sworn, deposes and says that he is the brother of the above-named defendant. That he occupies offices with his brother M. S., the plaintiff herein. That during the month of , 19 , he was present on many occa- sions when M. S., the plaintiff, saw the defendant, B. A. L., concerning the notes mentioned and described in the affidavit ' See preceding form and notes. 406 Bradbury's lawyers' manual Affidavit of Attorney in Support of Order of Arrest of M. S., the plaintiff herein, herewith submitted. Deponent heard said B. A. L., on several occasions, tell his brother, the plaintiff herein, that the notes had not been discounted, but that he had them in his desk and that he would return them on the occasion of his next visit to the office of the plaintiff; and deponent was present in the office of the plaintiff on Mon- day, the day of , 19 , when a con- versation to the same general effect was had and the said B. A. L. again promised to return the said notes to his, de- ponent's, brother, M. S., the plaintiff herein, and again stated that they had not been discounted. Sworn to before me, this day of , 19 . {Signature and title of officer.) M. S. FORM NO. 258 Affidavit of Attorney in Support of Order of Arrest, upon Renewing Motion on Additional Affidavits, after First Order had been Refused ^ New York Supreme Court, New York County. M. S., Plaintiff, against B. A. L., Defendant. State of New York 1 J. CO * County or New York l G. E. J., being duly sworn, says that he is the attorney for the plaintiff in the above-entitled action. That on the day of ' , 19 , he sub- ' On the motion for the order of arrest in this case there were presented the three affidavits which are Forms Nos. 255, 256, and 257, preceding, and also the com- plaint which is Form No. 259, succeeding, together with the summons in the action. A summons is always a necessary part of the papers unless there is an affidavit that it has already been served on the defendant. ARREST 407 Copiplaint; Submitted on Application for Order of Arrest mitted the proposed order for arrest herein and certain affi- davits to Mr. Justice Giegrich, and the learned Justice by- memorandum stated: "The affidavit of the persons who in- formed the plaintiff of the facts alleged on information and belief should be presented or a reason given why the same is not produced." That the plaintiff thereupon reverified a new affidavit pre- pared by deponent, stating the facts suggested in the mem- orandum. Sworn to before me, this 1 G. E. J. day of , 19 . ] {Signature and title of officer.) FORM NO. 259 Complaint; Submitted on Application for Order of Arrest; Con- version of Property by Fiduciary ' New York Supreme Court, New York County. M. S., Plaintiff, against B. A. L., Defendant. The plaintiff, complaining of the defendant, alleges: First: That at the City of New York, on the day of , 19 ) the plaintiff duly made his four promis- sory notes, all dated the day of , 19 , and all payable to the order of B. A. L., the defendant herein, two of which notes were for the sum of dollars each, payable three months after date, and two of which notes were for the sum of dollars, each payable four months after date and all of which were payable at the 1 Adapted from Spiegel v. Levine, 161 App. Div. 764; 147 Supp. 78. See four preceding forms and notes. 408 Bradbury's lawyers' manual Complaint; Submitted on Application for Order of Arrest Bank, in the Borough of Manhattan, City of New York. Second: That all of said notes were delivered to the said B. A. L., the defendant, without consideration from him, but for the accommodation of this plaintiff and under an agree- ment between the said plaintiff and the defendant, B. A. L., whereby the said defendant B. A. L. was to procure the dis- count of the said notes for and on account of the plaintiff and to immediately pay over the proceeds thereof to the plaintiff. Third:, On information and belief that almost immediately thereafter and without the knowledge of this plaintiff the said defendant, B. A. L., procured the said notes and all of them to be discounted and received as the proceeds thereof the sum of dollars which said sum the said defendant, B. A. L., has embezzled and has wrongfully converted to his own use and has not paid over to the plaintiff any part thereof (although the plaintiff has duly demanded from the defendant the said sum),^ by reason of which the plaintiff has been dam- aged in the sum of dollars. 'In the original complaint there was no allegation that a demand had been made on the defendant for the proceeds of the notes and the court below held that the complaint was insufficient by reason of this defect. The Appellate Divi- sion, however, held that the allegation that the defendant had embezzled the money and wrongfully converted to his own use and had not paid over to the plaintiff any part thereof, was sufficient, inasmuch as the defendant had em- bezzled the money in a fiduciary capacity. In holding that the defendant in Spiegel v. Levine acted in a fiduciary capacity the court cited the case of Moffatt v. Fullon, 132 N. Y. 507, rev'g. 56 Hun, 337; 9 Supp. 771; MacDonneU v. Buffalo, L. T. & S. D. Co., 193 N. Y. 92; Saratoga Gas and Electric Light Co. v. Hazard, 55 Hun, 251, aff'd 121 N. Y. 677. The court in Spiegel v. Levine, followed the rule that where it is alleged that a person has disposed of property, which has been converted, when he had .no right to do so, and the disposal constitutes the conversion, a technical allegation of demand is not necessary, and also held that the allegation of embezzlement was sufficient as an allegation of wTong- ful or fraudulent appropriation. The court in Spiegel v. Lcnne also defined embezzlement in accordance with the case of Moore v. United States, 160 U. S. 268, as follows: "Embezzlement is a fraudulent appropriation of another's property by a per- son by whom it has been entrusted, or in whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful and was with the consent of the owner, while in larceny felonious intent must have existed at the time of the taking." ARREST 409 Order of Arrest when Grounds Therefor Depend on Extrinsic Facts Wherefore the plaintiff demands judgment against the defendant in the smn of dollars, with interest from the day of > 19 ? with costs. G. E. J., Attorney for Plaintiff, No. 165 Broadway, Borough of Manhattan, New York City. [Verification.] FORM NO. 260 Order of Arrest when Grounds Therefor Depend on Extrinsic Facts 1 (Code Civ. Pro., §§ 550, 551) At Special Term, Part II, of the New York Supreme Court, held in and for the Coimty of New York, at the County Court- house therein, on the day of , 19 . Present : Hon. Peter A. Hendrick, Justice. Adam Brown, Plaintiff, against Charles Darwin, Defendant. To the Sheriff of the County of New York: It having been made to appear to the court by the affidavit of the plaintiff above named, Adam Brown, sworn to the 1 An execution against the person cannot be issued where the action is brought under § 550 of the Code of Civil Procedure unless an order of arrest has been granted and executed in the action and has not been vacated. Code Civ. Pro., § 1487; Merriam v. Johnson, 116 App..Div. 336; 101 Supp. 627. An order for the arrest of the defendant in an action for an accounting by a principal against an agent was granted in the case of Allen v. O'Bryan, as appears incidentally from the report of that case in 58 Misc. 32; 108 Supp. 838, where it was held that the defendant was not entitled to withdraw a deposit made in lieu 410 Bradbury's lawyers' manual Order of Arrest when Grounds Therefor Depend on Extrinsic Facts day of , 19 , and the verified complaint in this action, duly verified the day of , 19 , that a sufficient cause of action exists against the above- named defendant, Charles Darwin, pursuant to § 550 of the Code of Civil Procedure, wherein the judgment demanded requires the performance of an act, the neglect or refusal of which will be punishable by the court as a contempt (to wit, a demand requiring the defendant to account as agent of the plaintiff for money received by him in a fiduciary capacity) and that the defendant, Charles Darwin, is not a resident of the State of New York (or that the defendant, Charles Darwin, being a resident of the State of New York, is about to depart therefrom) and there is danger that a judgment or an order requiring the performance of the said act, will be rendered ineffectual. of an undertaking made when he was arrested, notwithstanding there had been a dismissal of the complaint from which the plaintiff had appealed and given an undertaking on the appeal. The judgment dismissing the complaint was subse- quently reversed and a new trial ordered. Allen v. O'Bryan, 118 App. Div. 213; 103 Supp. 125. The case has not since been reported. An action may be maintained against the endorser of a promissory note for fraudulent representations, that the defendant for the purpo.se of procuring the discount of said note, had made false representations to the plaintiff on the faith of which the note had been discounted, even though the plaintiff had begun a prior action on the endorsement itself, which action had been discontinued before judgment. Citizens' National Bank v. Wetsel, 96 App. Div. 85; 88 Supp. 1079. In an action for divorce an order of arrest may be granted under § 550, where there is a demand for alimony, but such an order cannot be based on a complaint alleging the acts of adultery on information and belief, but must be supported by positive allegations. Lewis v. Lewis, 77 Misc. -112; 136 Supp. 686. Where the application for the order is made in an action for a divorce it must be based upon a complaint, together with an affidavit showing the extrinsic facts, because it is only from the complaint that it can be determined that there is a de- mand for alimony and a statement to this efTect in an affidavit alone, where no complaint is submitted on the motion, is insufficient. Lichstrahl v. Lichstrahl, 38 Mi,sc. 331; 77 Supp. fiOO. An order of arrest was granted under § 550 against a nonresident in an action for an injunction to restrain an employ^ from accepting employment from a rival company in a foreign country, whore the services of the employ! were neces- sary to the continuance of the business of the plaintiff and the employ! was under a, contract to give his services exclusively to the plaintiff. General Explosive Compcuii/ V. Hough, 63 Misc. 377; 116 Supp. 1114. ARREST 411 Undertaking on Order of Arrest You ARE REQUIRED FORTHWITH to arrest Charles Darwin, the defendant in this action, if he be found within your county and to hold him to bail in the sum of dollars, and to return this order with your proceedings hereunder as prescribed by law. Enter, Ely Franklin,! P. A. H., Attorney for the Plaintiff, J. S. C. 141 Broadway, New York City. FORM NO. 261 Undertaking on Order of Arrest ^ New York Supreme Court, Kings County. A. B., Plaintiff, against C. D., Defendant. Whereas, A. B., the plaintiff above namedj^has made appli- cation to one of the justices of the above-named court to arrest the above-named defendant, C. D., in an action for damages for fraud and deceit (or otherwise concisely state the cause of action) . Now, THEREFORE, WO, E. F., of Street, in the Borough of Brooklyn, City and State of New York, and G. H., of Street, Borough of Brooklyn, City and State of New York, do hereby, pursuant to the statute in such case made and provided, jointly and severally undertake that if 1 The order of arrest must be subscribed by the plaintiff's attorney. ' When the order can be granted only by the court, such for example, as an order under § 550, an undertaking on the part of the plaintiff may be dispensed with. Code Civ. Pro., § 560. But in actual practice the court very rarely ever dispenses with the undertaking. 412 Bradbury's LAWYEEs' manual Undertaking on Order of Arrest the defendant, C. D., in the action, do recover judgment therein or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in such action will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest in said action, not exceeding the sum of (two hundred and fifty dollars). Dated the day of , 19 . E. F. G. H. State of New York County of New York A. B., being duly sworn, says that he is a resident and a (freeholder) within the State of New York and is worth twice the siun specified in the above imdertaking over aU 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 1 A. B. day of , 19 . , {Signature and title of officer.) State of New York ] County of New York J CD., being duly sworn, says that he is a resident and a (householder) within the State of New York and is worth twice 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 execu- tion. Sworn to before me, this day of , 19 . (Signature and title of officer.) State of New York County of New York C. D. On this day of , 19 , before me per- sonally appeared the above-named A. B. and C. D., to me ARREST 413 Notice ot Motion to Vacate Order of Arrest known and known to me to be the individuals described in and who executed the above undertaking and they acknowl- edged that they executed the same. {Signature and title of officer. ) This bond is hereby approved as to its form, manner of execution and the sufficiency of the sureties. Dated the day of , 19 . Abel E. Blackmab, Justice of the Supreme Court of the State of New York. FORM NO. 262 Notice of Motion to Vacate Order of Arrest Made on the Papers on Which the Order was Granted (Code Civ. Pro., § 568) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice, that a motion will be made at Special Term, Part I, of the New York Supreme- Com-t, to be held in and for the Coimty of New York, at the County Com-thouse therein, on the day of , 19 , at the opening of com-t on that day, or as soon thereafter as counsel can be heard, for an order vacating an order of arrest made herein by Mr. Justice Hendrick, on the day of ,19 , and said motion will be based on the papers on which said order was granted ^ on the ground {here must he ' It the motion is made on affidavits controverting the allegations in the af- fidavit on which the order of arrest was granted, recite such affidavits in the notice 414 BRADBURY'S LAWYERS' MANUAL Notice of Motion to Vacate Order of Arrest stated specifically the grounds on which the motion is made to vacate the order) , and for such other, further and different relief as may be proper, with costs. Dated the day of , 19 . To G. H., Esq., Yours, etc., Attorney for Plaintiff, Ely Frajstklin, No. 30 Broad St., Attorney for Defendant. New York City. of motion in place of the statement that the motion to vacate is made on the papers on which the order of arrest was granted. If the order is made by a judge out of court, as practically all such orders are, except orders under § 550, the appUcation to vacate the order, when based on the papers on which it was founded, may be made to the same judge who granted it in court or out of court and with or without notice as he deems proper. As a matter of practice in New York City, the application is almost invariably made on notice and is heard at Special Term, Part I. In some other sections of the State it is not infrequently the practice for the parties to appear before the same judge who granted the order, on an informal notice by telephone or otherwise, stating that they are going to apply to the same judge who granted the order to vacate the order on the papers on which it is granted, and the motion is thus heard. While in New York County the order of arrest, when made by a judge, is invariably made by the judge who sits at Special Term, Part II, nevertheless it is deemed to be an order made out of court, that is, it is what is usually known as a chambers order. If the motion to vacate is made on proof by affidavit on the part of the defendant, then it must be made to the court and in that case in New York County it would be made at Special Term, Part I, in every case, and in other portions of the State it would be made at a Special Term for motions. Code Civ. Pro., § 568. Where the order of arrest was made by a judge, the defendant may apply to vacate the order at any time before final judgment, or if the arrest was made twenty days before final judgment, at any time within twenty days after the arrest. Code Civ. Pro., § 567. If the order of arrest was granted by the court an apphcation may be made within twenty days after the arrest. Code Civ. Pro., § 567. AREEST 415 Affidavit to Secure Order to Show Cause on Motion to Vacate FORM NO. 263 Affidavit to Secure Order to Show Cause Why Order of Arrest Should not be Vacated, When Motion to Vacate is Made on the Papers on Which the Order was Granted New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York 1 ss: County op New York C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action and that on the day of , 19 , he was taken into custody by the Sheriff of the County of New York and is still in such custody and is actually imprisoned under an order of arrest in the above-entitled action made by Mr. Justice Hendrick, on the day of , 19 . Deponent further says that he is unable to secure bail and that he was about to go to another part of the State of New York outside the County of New York on important business matters when the order of arrest was served on him as afore- said. Unless deponent is able to attend to such business mat- ters he will lose a considerable sum of money and unless the motion hereinafter mentioned to vacate said order of arrest is brought on in less than eight (five) days, deponent will be seriously prejudiced. Deponent desires to move to vacate said order of arrest on the papers on which the same was granted, on the ground that {here state specifically the ground on which the motion is to be made, but do not state any facts in contradiction of the facts stated in the papers on which the order 416 Bradbury's lawyers' manual To Show Cause Why Order of Arrest Should not be Vacated was granted, for if an issue is raised in this way the plaintiff may supply the alleged omission by further affidavits). Deponent therefore asks for an order to show cause return- able to-morrow, why the order of arrest should not be vacated on the ground hereinbefore stated. This action is not yet at issue and the next trial (special) term at which the case is triable is appointed to be held at the County of New York, on the day of , 19 . No previous application for an order to show cause has been made to any court or judge. Sworn to before me, this day of , 19 {Signature and title of officer.) C. D. FORM NO. 264 Order to Show Cause Why Order of Arrest Should not be Vacated When the Motion to Vacate is Made on the Papers on Which the Same was Granted New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavit of C. D., sworn to the day of ,19 , and on the order of arrest herein and the papers on which it was granted, let the plaintiff show cause at Special Term, Part I, of the New York Supreme Coiirt, to be held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , at the opening of coiu-t on that day, or as soon thereafter as counsel can be heard,why an order of arrest made in the above-entitled ARREST 417 Notice of Motion to Vacate Order of Arrest When Based on Affidavits action by Mr. Justice Hendrick on the day of ,19 , should not be vacated on the ground (here set forth specifically the grounds on which the motion is made), and why the defendant should not have such other further and different relief as may be proper, with the costs of this motion. Sufficient reason appearing therefor the service of this order and the affidavit on which the same is granted on the plain- tiff's attorney, on or before five o'clock P. M., on this day of , 19 , shall be deemed sufficient. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. FORM NO. 265 Notice of Motion to Vacate Order of Arrest When Based on Af fidavits (Code Civ. Pro., § 568) New York Supreme Court, New York County. A.B., Plaintiff, against C. D., Defendant. Please take notice, that on the annexed affidavits of C. D. and H. J., sworn to the day of , 19 , and on all the proceedings had in this action, a motion will be made 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 Com-thouse therein, on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order vacating the order of 418 BRADBURY S LAWYERS MANUAL Affidavit on Motion to Vacate Order of Arrest arrest made herein by Mr. Justice Hendrick, on the day of , 19 , on the ground {state specifically the ground on which the motion is made), and for such other, further and different relief as may be proper; with the costs of this motion. Dated the day of , 19 . To: Yours, etc., G. H., Esq:, Ely Franklin, Attorney for Plaintiff. Attorney for Defendant. FORM NO. 266 Affidavit on Motion to Vacate Order of Arrest (Code Civ. Pro., § 568) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York ss: C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action. That an order of arrest was hereinbefore granted in said action by Mr. Justice Hendrick, on the day of , 19 , and was served on the defendant herein by the Sheriff of the County of New York on the day of , 19 , and deponent thereafter gave bail and is now at Hberty on said bail. Deponent further says (here insert the allegations which it is desired to set up in opposition to the statements contained in th ARREST 419 Order Vacating (or Refusing to Vacate) Order of Arrest plaintiff's papers and which controvert the allegations contained in the plaintiff's papers, or otherwise show that the statements of fact contained in the plaintiff's papers are not true) . Deponent therefore prays that such order of arrest may be vacated, with the costs of this motion, and that the defendant may have such other, further and different relief as may be proper. Sworn to before me, this day of , 19 (Signature and title of officer.) C. D. FORM NO. 267 Order Vacating (or Refusing to Vacate) Order of Arrest At Special Term, Part I, of the New York Supreme Court, held in and for the Coimty of New York, at the County Court- house therein, on the day of , 19 . Present : Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D. Defendant. A motion having been regularly made by the defendant herein to vacate an order of arrest made herein by Mr. Justice Hendrick on the day of , 19 , and said motion having come on regularly to be heard, Now, on reading the original order of arrest, and the com- plaint and affidavits on which the same was granted which were heretofore filed in the office of the Clerk of the County of New York, on the day of , 19 , and on read- ing and- filing the notice of motion (order to show cause), dated the day of , 19 , and the affida- 420 Bradbury's lawyers' manual Affidavit of Nonresidence of Defendant for an Order of Arrest Under § 550 of Code vits of C. D. and G. H., sworn to the day of ,19 , in favor of said motion (and the affidavit of A. B., sworn to the day of , 19 , in opposition thereto) and after hearing G. H., Esq., attorney for the de- fendant, and E. F., Esq., attorney for the plaintiff in opposi- tion thereto, and due deUberation having been had, it is, on motion of G. H., attorney for the defendant. Ordered, that said order of arrest dated the day of , 19 , be and the same hereby is in all respects vacated and aimuUed and that the defendant recover of the plaintiff, ten dollars costs of this motion. Or On motion of E. F., the attorney for the plaintiff, it is hereby Ordered, that said motion be and the same hereby is in all respects denied, with ten dollars costs to the plaintiff against the defendant. Enter, S. G., J, S. C. FORM NO. 268 Afl&davit of Nonresidence of Defendant to Secure an Order of Arrest Under § 550 of the Code New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York ^ SS * County of New York A. B., being duly sworn, deposes and says that he is the plaintiff in the above-entitled action. That this action has ARREST 421 Affidavit of Nonresidence of Defendant for an Order of Arrest Under § 550 of Code been begun by the issuance of a summons and complaint against the defendant, CD., but that the summons and com- plaint have not yet been served on the defendant, but accom- pany this application. The action is brought to require an accounting from said CD., the agent of the plaintiff, as more specifically appears in the verified complaint which is annexed hereto and made a part of this application. The defendant, C D., is a nonresident of the State of New York and resides at No. , Street, in the City of , in the State of , to deponent's own knowledge. Deponent is well acquainted with said C D., and has known him for upwards of years and has been at deponent's house in the said City of in the State of , (or deponent is well acquainted with said CD. and has been so acquainted with him for up- wards of years and has frequently talked with the defendant as to the place of his residence); said defendant, C D., told the deponent as late as the day of , 19 , that he, said C D., resided at said Street, in the City of in the State of New Jersey, and that he voted in the said State of New Jersey. {Very few cases seem to have arisen under the provision allow- ing an order of arrest where the defendant is about to depart from the State. It is held that the evidence on this ground must be very strong to sustain an order of arrest where it appears, as the act requires, that the defendant is a resident of the -State and is about to depart so that there is danger that the judgment may not be enforced against him by contempt. As the order rests in the dis- cretion of the court, it is evident that the evidence as to the intention of the defendant to depart from the State must be very con- vincing.) No previous application for an order of arrest has been made to any court or judge. (There should also be appropriate allega- tions in the form of evidence sustaining the allegations contained in the complaint unless such allegations are made on knowledge and it thus appears from the complaint itself and they are such 422 Bradbury's lawyers' manual Bail Bond as to make a complete cause of action without any additional averments.) Sworn to before me, this } C. D. day of , 19 . J {Signature and title of officer.) FORM NO. 269 Bail Bond ^ (Code Civ. Pro., § 575) New York Supreme Com-t, New York County. A. B., Plaintiff, against C. D, Defendant. Whereas, the above named-defendant, C. D., has been arrested by M. N., the Sheriff of the County of , under an order of arrest made in the above-entitled action and dated the , day of , 19 . Now, THEREroRB, WE, P. Q., residing at No. , Street in the Borough of Manhattan, City, County and State of New York, merchant, and I. J., residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, banker, do hereby jointly and severally under- take in the sima of dollars {if the bond is given under subd. 1 of ^ 575) that the said defendant will obey the direction of the court or of an appellate court contained in ' It is not necessary that the undertaking should be approved or accompanied after an affidavit of justification. Code Civ. Pro., § 576. But the sheriff may require the persons executing the bail bond to be examined under oath to a rea- sonable extent, by the officer who takes the acknowledgment, and this examina- tion must be reduced to writing and subscribed by the bail and annexed to the undertaking. Code Civ. Pro., § 576. This examination is always held by the sheriff before he accepts a bail bond, as a matter of practice. ARRES'T 423 Bail Bond an order or judgment requiring him to perform the acts speci- fied in the order, or in default of his so doing that he will at all times render himself amenable to proceedings to punish him for the omission. (// the bond is under subd. 2 of ^ 575, as follows) : That the defendant will deliver to the plaintiff the chattels sought to be recovered in said action if delivery thereof is adjudged in this action, and will pay any sum recovered against him in the action. (// the undertaking is under subd. 3 of ^ 575.) That the defendant will at all the times render himself amen- able to any mandate which may be issued to enforce a final judgment against him in this action. Dated the day of , 19 . P. Q. I. J. State of New York County of New York ss: On this day of > 19 , before me per- sonally appeared P. Q. and I. J., to me known and known to me to be the several persons described in and who executed the foregoing bond and they severally acknowledged to me that they executed the same. (Signature and title of officer.) 424 BRADBURY S LAWYERS MANUAL Notice by Plaintiff's Attorney of Nonaceeptance of Bail FORM NO. 270 Notice by Plaintiff's Attorney of Nonaceeptance of Bail ^ New York Supreme Court, New York Coimty. A. B., against C. D., Plaintiff, Defendant. Please take notice that the plaintiff does not accept the bail named in the undertaking given by the defendant in order to be discharged from arrest in this action. Dated the day of , 19 . Yours, etc., To: E. F., G. H., Esq., Attorney for Plaintiff. Attorney for Defendant, and to the Sheriff of the County of 1 Within three days after the bail is given the sheriff must deliver to the plain- tiff's attorney copies certified by him of the order of arrest, return and under- taking. The plaintiff's attorney, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, otherwise he is deemed to have accepted them and the sheriff is exonerated from liability. Code Civ. Pro., § 577. AKREST 425 Notice of Justification of Bail FORM NO. 271 Notice of Justification of Bail ^ (Code Civ. Pro., § 578) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice, that the bail named in the imder- taking given in this action by the defendant in order to be discharged from arrest, dated the day of , 19 {or if other hail is to justify different from those who have signed the undertaking, then their names and occupations must be given, together with their places of residence), will justify be- fore Hon. P. A. H., a Justice of the Supreme Coiu^; of the State of New York (or before John Jones, a County Judge of the County of ), at the office of said Justice (Judge), at Special Term, Part II, of the New York Supreme Court, in the County Courthouse in New York County, on the day of , 19 , at eleven o'clock in the forenoon. Dated the day of , 19 . To: L. M., E. F., Esq., Sheriff of County. Attorney for the Plaintiff. • This notice must be given within ten days after the Sheriff receives notice of nonacceptance of the bail. The notice must be given for a time not less than five days, nor more than ten days, after the day the notice is given, and the justifica- tion must be within the county where one of the bail resides or where the de- fendant was arrested. 426 buadbury's lawyers' manual Approval of Bail Endorsed Thereon by Judge After Justification FORM NO. 272 Approval of Bail Endorsed Thereon by Judge After Justification ' (Code Civ. Pro., § 581) I find the bail mentioned in the within (annexed) under- taking to be sufficient and hereby allow the same. Dated the day of , 19 . P. A. H., Justice of the Supreme Court of the State of New York. 1 On the justification the examination must be reduced to writing if required by the plaintiff's attorney and subscribed by the bail and filed with the clerk with the undertaking, which is approved by the Judge. Code Civ. Pro., § 580. CHAPTER XXV ATTACHMENTS ^ FORMS NO. PAGE 273. Warrant of attachment; non- resident defendant 428 274. Affidavit on attachment; non- resident defendants 43.5 275. Additional affidavit on at- tachment to go with pre- ceding and succeeding forms 438 276. Additional affidavit to go with the two preceding forms 439 277. Warrant of attachment; breach of contract for ex- clusive agency with a claim for prospective damages; defendant foreign corpora- tion 440 278. Affidavits and exhibits on at- tachment in an action for breach of a contract for ex- clusive agency and for prospective damages; for- eign corporation defendant 441 279. Warrant of attachment on certified check where de- fendant a foreign corpora- tion; assigned claim 447 280. Complaint on application for attachment on certified checks when defendant is a foreign corporation; as- signed claim . . . 450 281. Affidavit on attachment on certified checks when de- fendant is foreign corpora- tion; assigned claim 452 282. Undertaking on granting warrant of attachment. . . 455 283. Undertaking on attachment by surety company 457 284. Undertaking by attachment creditor where the property is claimed by a third per- son 460 285. Undertaking by third person who claims property taken under an attachment against another 461 286. Undertaking by defendant on application to discharge at- tachment ; 463 287. Notice of exception to suf- , ficiency of sureties in un- dertaking given to dis- charge an attachment .... 464 288. Notice of motion to vacate attachment on papers on which attachment was founded 465 289. Order to show cause on mo- tion to vacate attachment when made on the original papers 466 290. Affidavit to secure order to show cause why attach- ment should not be va- cated, when motion is made on original papers 467 291. Order vacating or refusing to vacate warrant of attach- ment 468 ' The papers necessary on an attachment are the following: (1) A summons unless the summons has already been served on the defendant. (2) Usually a complaint, but a complaint is not absolutely necessary in all 427 428 Bradbury's lawyers' manual Warrant of Attachment; Nonresident Defendant FORM NO. 273 Warrant of Attachment; Nonresident Defendant * The People of the State of New York. To the Sheriff of the County of New York,^ Greeting: Whereas an application has been made to the Judge grant- ing this Warrant by the Gotham National Bank of New York, cases. However, it is safe practice to include a complaint with the papers, as in some specific instances it is necessary. (3) An affidavit sustaining the allegations of the complaint and containing the further matter hereinafter stated. (4) An undertaking. The kinds of actions in which attachments may be granted are specified in Code Civ. Pro., § 635, and include practically every cause of action which is brought to recover a sum of money only, other than an action for the breach of a contract to marry. In addition to showing a good cause of action by a verified complaint and affidavits the plaintiff must further show that one of the following conditions exists: (1) That the plaintiff is entitled to recover a sum stated in the affidavit over and above all counterclaims known to the plaintiff. (2) That the defendant is either a foreign corporation or is a nonresident of the State of New York. (3) If the defendant is a natural person and a resident of the State of New York that he has departed therefrom with intent to defraud his creditors or to avoid the service of a summons or keeps himself concealed therein with a Uke intent. (4) If the defendant is a natural person or a domestic corporation 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 the property with like intent. (5) That, for the purpose of securing extension of credit, the defendant has ' Adapted from Gotham National Bank v. Martin, 167 App. Div. 271; 152 Supp. 654. In the original warrant from which this was taken there was a further state- ment that the defendants had been "continuously without the State of New York for more than six months prior to the order for publication of the summons herein," in addition to a statement that the defendants were nonresidents. It was held, however, that this fact was immaterial as the papers were sufficient to show that the defendants were nonresidents. See the affidavits, Forms Nos. 274, 275 and 276, following. ^ The warrant may be directed to the sheriff of a particular county or to the sheriff of any county. Code Civ. Pro., § 641. ATTACHMENTS 429 Warrant of Attachment; Nonresident Defendant plaintiff, for an attachment against the property of Louis Martin and Louise Martin, defendants, in an action in the New York Supreme Court, and it appearing by affidavit to the satisfaction of the Judge granting this warrant that one made a false statement in writing under his own hand or signature or under the hand or signature of a duly authorized agent, made with his knowledge or ac- quiescence as to his financial responsibility or standing. (6) That the defendant, being a resident of the State has been 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 on his behalf, as pre- scribed by § 430 of the Code of Civil Procedure; 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. Code Civ. Pro., § 636. (7) A warrant of attachment may also be granted against a public officer to recover public funds in accordance with the provisions of Code Civ. Pro., § 637. While an attachment and an order of arrest may be granted in the same action (PeopU V. Tweed, 63 N. Y. 202; Rockford R. I., etc., R. Co. v. Boodu, 56 N. Y. 456), the court may require the plaintiff to elect as to which remedy he wiU pursue if it appears that both of these remedies are not necessary for the plaintiff's security. Duncan v. Guest, 27 Hun, 467; Code Civ. Pro., § 719. Under Code Civ. Pro., § 768, permitting defects in original papers to be sup- plied, the papers on which an attachment was granted may be amended and defects supphed on a motion to vacate the attachment. Cutler v. AUavena, 165 App. Div. 422; 150 Supp. 790. An attachment may now be granted in an action for injuries causing the death of a person under Code Civ. Pro., § 635, subd. 4, as amended by L. 1916, chap. 441, in effect May 9, 1916, as this amendment annuls the doctrine found in the case of James v. Signell, 60 App. Div. 75; 69 Supp. 680, wherein it was held that such an action was neither a personal injury nor an injury to property within the meaning of § 635, when construed in connection with § 4343 of the Code of Civil Procedure. An attachment may be allowed in an equitable action if a judgment is de- manded for a sum of money only. Avery v. Avery, 52 Misc. 297; 102 Supp. 955. Where a foreign insurance companj' doing business in this State is being liqui- dated under the supervision of the insurance commissioner of the foreign State, pursuant to a law of such foreign State, an attachment should not be granted against the company by a creditor in this State, as the assets should be distributed among all the creditors without allowing a preference to be secured by an attach- ment in this State. Martynev. American Union Fire Ins. Co., 216 N. Y. 183; aff'g 168 App. Div. 380; 153 Supp. 433. Section 1836a of the Code of Civil Procedure providing that a foreign executor or administrator may sue or be sued in New York, does not a>;thorize a writ of attachment against an administratrix appointed in a foreign State so as to permit the seizure of personal property belonging to the estate located in New York. Bostwick v. Carr, 165 App. Div. 55; 151 Supp. 74. 430 bkadbury's lawyers' manual Warrant of Attachment; Nonresident Defendant of the causes of action specified in § 635 of the Code of Civil Procedure exists against the defendants to recover a sum of money only, to wit: the sum of $1,696.45, and interest, as damages for breach of an express contract to pay money, to An attachment cannot be maintained on a claim to an assignment by endorse- ment and transfer of a half interest in a promissory note. Barkley v. Muller, 168 App. Div. 110; 153 Supp. 923. An absolute allegation of nohresidence made by a principal in the transaction and not by his assignee, is presumed to be made upon knowledge and is sufficient proof, though standing alone, of the fact of nonresidence to sustain an attach- ment. Miller v. Jonen, 152 Supp. 739; Geduld v, B. & O. Co., 70 Misc. 495; 127 Supp. 317. It has been held, however, that an attachment against a foreign cor- poration cannot issue where the nr.oving papers, though making a positive allega- tion that the defendant i-^ :. foreign corporation, do not give the sources of the affiant's knowledge or state facts indicating that the averment is made upon per- sonal knowledge. Dain's Sons Co. v. McNally Co., 137 App. Div. 857; 122 Supp. 964. In the last mentioned case the court quoted the statement appearing below from the case of Hoormann v. Climax Cycle Co., 9 App. Div. 579; 41 Supp. 17; as follows: "It has frequently been held in this State, and especially by the Supreme Court in the First Department, that knowledge will not be presumed from a mere posi- tive averment of the facts, but it must also appear from the affidavit that such knowledge really existed, by a statement of circumstances from which the in- ference of knowledge can be fairly drawn." The foregoing rule was re-affirmed in the cases of Tucker v. Goodsell Co., 14 App. Div. 89; 43 Supp. 460; Lehmaier v. Buchner, 14 App. Div. 263; 43 Supp. 438; Wallace v. Baring, 21 App. Div. 477; 48 Supp. 692; Martin v. Aluminum Compound Plate Co., 44 App. Div. 412; 60 Supp. 1010, In the case of James v. Signell, 60 App. Div. 75; 69 Supp. 680, it was held that a positive averment of the nonresidence of the defendant made by the plaintiff on his personal knowledge was not sufficient where no facts or circumstances were stated from which the court could see or infer that the plaintiff had any knowl- edge of the subject. To the same effect was Mohlman Co. v. Landwehr, 87 App. Div. 83; 83 Supp. 1073. In Murphy v. Jack, 142 N. Y. 215, it was held that while it was not necessary to the validity of an attachment that the affiant upon whose affidavit the writ was applied for should have personal knowledge of the facts required to be stated and that the facts might be stated on information and belief, it was essential that his information should appear to have been com- petently derived. It was further held that the sources of the information must be disclosed in such a way as to enable the court to decide upon the probable truth of the statements and the authenticity of the statement of the facts. The deci- sion in Miller v. Jones, supra, was made by the Appellate Term of the Supreme Court, First Department. It does not seem to be entirely in consonance with the other decisions cited above. In the several forms given herewith and in the oases from which they are taken, it appears that a letter or telegram from a public officer in another State, ATTACHMENTS 431 Warrant of Attachment; Nonresident Defendant wit: failure to pay a promissory note, and the affidavits show- ing that the defendants are nonresidents of the State of New York 1 and the plaintiff having given the undertaking required by law; Now, you are hereby commanded to attach and safely keep to the effect that the defendant is a foreign corporation, is sufficient either alone or in connection with information secured from directories and commercial agencies. It was held that the nonresidence of the defendant was not sufficiently shown by an affidavit on information and belief reciting statements of the defendant's employfes, which statements are not given, nor by the fact that a letter is pro- duced from' the defendant but which contains nothing upon which the conclusion should be based that the defendant was a nonresident. Houck Mfg. Co. v. Standard Screw Products Co., 149 Supp. 975. Where a positive allegation of the nonresidence of the defendant was made by the plaintiff in the affidavit upon which the attachment was secured, but it appeared that this allegation was made on information and belief and such in- formation and belief was based on the following allegation in the affidavit: "That the defendant in said action, E. F. S., is not a resident of the State of New York, but that he resides in the City of Philadelphia, State of Pennsylvania. But deponent's knowledge as to the fact that defendant is not a resident of the State of New York is based upon conversations had with defendant personally, and upon correspondence between plaintiff and defendant, upon the letterheads of the letters received from defendant in such correspondence, it being stated' that defendant is the manufacturer of Philadelphia standard water towers, water and steel tanks for all purposes, Philadelphia patent silo and patent roof, with his office at 1910 Market Street, Philadelphia, Pa., and with works at Norristown, Pennsylvania,'' that this was insufficient as proof of nonresidence and the at- ^ It is important that the ground of the attachment should be correctly stated in the warrant. Thus where the ground of an attachment as stated in the war- rant in accordance with the Municipal Court Code, § 41, was that the defendant "has disposed or is about to dispose of his property with intent to defraud his creditors," it was held that the attachment must be vacated because of the state- ment in the alternative that the defendant had disposed or was about to dispose of his property. Breakstone Bros. v. Hyman, 94 Misc. 171; 157 Supp. 898. The doctrine was announced in the cases of Cronin v. Crooks, 143 N. Y. 352; 38 N. E. 268; Rogers v. Ingersoll, 103 App. Div. 490; 93 Supp. 140; Garson v. Brumberg, 75 Hun, 336; 26 Supp. 1003. The reason for the rule is stated in the last men- tioned case as follows: "The removal of property with the intent to defraud creditors is one ground, and the assignment of it with like intent is another; but they are based upon different facts, and both cannot well be included in or estab- lished by the same facits, whilst, under the other provision of the Code the intent to defraud creditors, or to avoid the service of a summons, may be established from the same facts. Whether he has departed from the State, or keeps himself concealed therein, is immaterial, where the purpose ^nd intent are the same." ■ ^ 432 Bradbury's lawyers' manual Warrant of Attachment; Nonresident Defendant SO much of the property within your county which the de- fendants or either of them have or which they may have at any time before final judgment in the action, as will satisfy plaintiff's demand of $1,696.45, and interest, together with tachment was vacated. Cousins v. Schlicter, 135 App. Div. 779; 119 Supp. 899. In the last mentioned case it will be observed that there is no statement in the affidavit that the defendant told the plaintiff that he, the defendant, was a nonresident of New York. There is merely a statement that his information in relation to the defendant's nonresidence was secured, among other things, by conversations with the defendant. If there had been in addition a statement that the defendant had told the plaintiff that he, the defendant, was a non- resident of New York and was a resident of Philadelphia, doubtless the affidavit would have been sufficient. The court is without power to extend the time within which the simimons may be served or within which the publication may be begun, when the warrant is granted to accompany the summons. Jones v. Fuchs, 106 App. Div. 260; 94 Supp. 57; Martin v. Smith, 37 Misc. 425; 75 Supp. 780; aff'd 71 App. Div. 618; 76 Supp. 1020. From the necessity of moving quickly and suing on claims where the attorney is not always in personal touch with the plaintiff, it is impossible sometimes to se- cure an affidavit from the plaintiff personally, or from one who has personal knowledge of the facts on which the right to an attachment rests. From 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 the courts have established well-defined rules which re- quire those who request the court to grant this somewhat harsh remedy on affi- davits based on information and belief, to show the utmost good faith to the court as to the sources of their information and the grounds of their belief, and to make it appear that it is impossible, under the circumstances, to secure the best evidence from those who have personal knowledge in the form of af- fidavits. The following rules are well estabhshed and apply both to affidavits and to the complaint when they are used on motions to secure an.attachment, but naturally they do not apply to a pleading which is merely to be used as such and is not made the basis of an application for a remedy such as an attachment, an order of arrest or an injunction. 1. An allegation which on its face is on information and beUef merely without stating the sources of the information or the grounds of the belief proves or "shows" nothing and is a mere nuUity. Buell v. Van Camp, 119 N. Y. 160; Simmons v. Craig, 137 N. Y. 550. 2. An allegation positive in form, but which it is evident from other circum- stances disclosed by the papers must have been made on information and belief stands in no better position than one purely on information and behef. Hoor- mann v. Climax Cycle Co., 9 App. Div. 579; 41 Supp. 710; James v. Signell, 60 App. Div. 75; 69 Supp. 680; Crowns v. Vail, 51 Hun, 204; 4 Supp. 324; Simmons v. ATTACHMENTS 433 Warrant of Attachment; Nonresident Defendant costs and expenses, and that you proceed hereon in the manner required of you by law. Witness: Hon. Irving Lehman, Justice of the Supreme Court of the State of New York, at the County Courthouse Hazard, 65 Hun, 612; 20 Supp. 508; Delamy v. Bouse, 91 App. Div. 437; 86 Supp. 880. 3. A positive allegation by one who, from his connection with the transaction, as disclosed by the affidavit, might have had such positive knowledge, wiU 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. Lewis v. Tindel Morris Co., 109 App. Div. 509; 96 Supp. 576; Price v. Levy, 93 App. Div. 274; 87 Supp. 740; Wallace v. Baring, 21 App. Div. 477; 48 Supp. 692; Tucker v. Goodsell Co., 14 App. Div. 89; 43 Supp. 460, and cases cited under preceding paragraph. 4. If a conversation with a person who has actual knowledge or a conversation containing an admission by the defendant is the source of the information and the ground of the belief, the actual words or the substance of the conversation should be given. Such expressions as "the sources of deponent's information and the ground of his belief as to such facts are conversations with A. B.," etc., are usually unavailing in such an affidavit. The allegation should be that "said A. B. then and there stated to deponent that (giving the substance of the con- versation) and said statements are the sources of deponent's knowledge and the grounds of his belief as to the facts herein set forth. Buell v. Van Camp, 119 N. Y. 160; Simmons v. Craig, 137 N. Y. 550. 5. If letters, telegrams, or other papers or documents are the sources of the information, the originals or sworn copies thereof should invariably be set forth, as the court must determine from the same sources of information that the affiant had whether or not the behef is well founded. If the documents are too long to be set forth in fuU, such portions as are relied upon should be used, with an explana- tion that the portions set forth are portions of longer documents. Such allega- tions as that the "sources of deponent's knowledge and the grounds of his belief are certain statements contained in letters (or other documents)," without stating such contents, have no probative force whatever. Buell v. Van Camp, 119 N. Y. 160; Simmons v. Craig, 137 N. Y. 550; Thompson v. Best, 4 Supp. 229; memo, without opinion 51 Hun, 641. 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; rev'g 76 Hun, 356. 7. A good excuse must be given for failure to produce an affidavit of the person who has actual knowledge. Mere inconvenience will not suffice. It must appear either that the person who has actual knowledge is too ill to make the 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 the affidavit and has refused to do so. While an affidavit to support an attachment may be secured from the wtness who refuses 434 Bradbury's lawyers' manual Warrant of Attachment; Nonresident Defendant in New York County this day of , in the year one thousand nine hundred and Irving Lehman,^ Justice of the Supreme Court • of the State of 'Ne^ York. Wilder, Ewen & Patterson, Attorneys for Plaintiff, 45 Cedar St., New York City. to make one 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 knowledge followed by an affidavit on information and belief, is sufficient for the purppae of attachment. Haskell v. Osborne, 33 App. Div. 127; 53 Supp. 361 ; Delaney v. Bouse, 91 App. Div. 437; 86 Supp. 880; Empire Warehouse Co. v. Mallett, 84 Hun, 561;. 32 Supp. 861; Levy ,v. Goldstein, 18 Misc. 636; 43 Supp. 774; Brewster v. Van Camp, 8 Supp. 558. 8. It is essential to show either by necessary implication or specific allegations that the person from whom the information is derived has himself personal knowl- edge. By implication, it is meant that it, must appear that such person was an actor in the transaction forming the basis of the attachment. If the plaintiff 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 corporation, there should be allegations showing clearly that the informant was himself acquainted personally with the facts. Anthony & Co. v. Fox, 53 App. Div. 200; 65 Supp. 806; Steele v. Gilmour Mfg. Co., 77 App. Div. 199; 78 Supp. 1078. 1 The warrant may be granted by any judge of the court in which the action is brought or by any county judge, at any time after the commencement of the action and before final judgment therein, or it may be granted to accompany the summons if the action is not yet begun. Code Civ. Pro., § 638., If, ho\yever, it is granted to accompany the summons there must be service on the defendant personally within thirty days after the warrant is granted or within the same time service must be commenced by pubUcation. Code Civ, Pro., § 638. ATTACHMENTS 435 Affidavit on Attachment; Non-Resident Defendants FORM NO. 274 Affidavit on Attachment; Non-resident Defendants New York Supreme Court, New York County. The Gotham National Bank of New YdiKK, Plaintiff, against Louis Martin and Louise Martin, Defendants. State of New York \ County of New York J I. H. H. B., being duly sworn, deposes and says that he is the President of the plaintiff corporation and has personal knowl- edge of all the matters hereinafter stated, except so far as the same are alleged on information and belief. II. That the plaintiff is a national banking corporation duly organized and existing imder the laws of the United States of America having its office at Broadway, in the Borough of Manhattan, in the City and State of New York and that at all the times hereinafter mentioned deponent was the President of the plaintiff corporation. III. On information and belief that the defendants above named are nonresidents of the State of New York, but reside somewhere in France, and that the defendants have been con- tinuously without the State of New York for more than six months prior to the bringing of this action and prior to the granting of an order for the publication of the simmions herein against them and that the said defendants have not made a designation of a person upon whom to serve a summons in their behalf as prescribed in § 430 of the Code of Civil Procedure. 1 Adapted from Gotham National Bank v. Martin, 167 App. Div. 271; 152 Supp. 654. See the notes to warrant from this case, Form No. 273, ante, and also the succeeding two Forms,, Nos. 275 and 276, and notes thereto. 436 Bradbury's lawyer's manual Affidavit on Attachment; Non-resident Defendants IV. That the sources of deponent's information" and the grounds of his beUef are statements made to deponent by O. W. and the affidavit of F. D. hereto annexed. That the said 0. W. was heretofore introduced to deponent by said defendant, Louis Martin, as manager of his business, and deponent was told that he had a power of attorney from him to attend to his affairs. V. That when the note hereinafter mentioned became due on or about the day of , 19 , said 0. W. called upon deponent and stated that the defendants were in France and had gone there several months before; that he did not know whether they would ever return. That the said defendants had, however, left certain personal property con- sisting of silverware, linens, household furniture and personal effects in storage in New York City; and that he expected to be directed by the said Louis Martin to sell them and pay the note hereinafter referred to. That since the said time the said 0. W. has called on deponent a number of times and stated that the defendants were still abroad and had not been back and that he had received no defiaite order as to the disposition of the said property, although he had written for same. VI. That on the day of , 19 , de- ponent had a further interview with the said O. W. and the said O. W. stated to deponent that the said defendants had sailed for France on the day of , 19 , {nine months prior to the making of the affidavit), and had been living there since that date and that they had not advised him that they intended to retium to New York, and that he did not know that they would ever come back to New York, and that he was still waiting for instructions as to the dis- position of their property over here. VII. That the plaintiff above named has a good cause of action against the defendants and each of them above named, to recover the sum of $2,696.45, with interest from the day of , 19 , upon an express promise to pay money, to wit: a promissory note which arose upon the fol- lowing facts: That on or about the day of , ATTACHMENTS 437 Affidavit on Attachment; Non-resident Defendants 19 , the defendants duly made, executed and delivered their promissory note in writing, wherein and whereby three months after the date thereof they promised to pay to the plaintiff the sum of $2,695.20. That on the due date thereof the same was duly presented for payment and payment thereof refused and the said note was thereupon duly protested for nonpayment and due notice thereof was given to the defendants at an ex- pense due to the plaintiff of $1.25. That no part of the note or protest fee has been paid and there is now due and owing from the defendants to the plaintiff the said sum of $2,696.45, with interest from the day of , 19 , and that the plaintiff is still the owner and holder of said note. VIII. That the plaintiff is justly entitled to recover from the above-named defendants the said sum of $2,696.45, with interest from the day of , 19 , over and above all counterclaims and set-offs known to the plaintiff or to the deponent. IX. That the plaintiff has commenced an action in the Supreme Court in the State of New York, County of New York, against the defendants above named to recover the sum of $2,696.45, with interest thereon by issuing the sum- mons herein for service against the defendants on the cause of action above set forth. No previous apphcation for a warrant of attachment has been made. Wherefore deponent prays that a warrant of attachment may be issued against the property of the defendants and each of them. Sworn to before me, this i H. H. B. day of . , 19 . J {Signature and title of officer.) 438 BRADBURY'S LAWYER'S MANUAL Additional Affidavit on Attachment to go with Preceding and Succeeding Forms FORM NO. 275 Additional Affidavit on Attachment to go with Preceding and Suc- ceeding ^ Forms (Title Same as Preceding Form) State op New York eg • County of New York F. D., being duly sworn, deposes and says that he is and has been for a number of years acquainted with the defendant, Louis Martin and his wife, Louise Martin. That the defend- ants are natives of France who resided in New York City for some years prior to the day of , 19 . That the said Louis Martin was in the restaurant business. That during the winter of 1913-1914 the corporation in which he was interested faUed, and about April, 1914, the said Louis Martin and his wife sailed for France at the time stating that they did not know -whether they would return or no. That to deponent's knowledge they have been permanently outside of the State of New York and have not returned at the present day. That they have no place of residence here and that deponent was informed by them and also by their general manager, O. W., that they stored all their personal effects in this country in a storage warehouse and that neither of them has been or is a resident of or within the State of New York since April, 1914. Sworn to before me, this 1 F. D. day of , 19 . J (Signature and title of officer.) ' See notes to preceding and succeeding forms. ATTACHMENTS 439 Additional Affidavit to go with the Two Preceding Forms FORM NO. 276 Additional Affidavit to go with the Two Preceding Forms ^ (Title Same ds Second Preceding Form)' State of New York County of New York ss: R. D., being duly sworn, deposes and says that he is an attorney and associated with W. E. & P., the attorneys for the plaintiff in the above-entitled action. That on the day of , 19 , deponent made a search in the office of the Clerk of the County of New York for a designa- tion by the defendants and each of them of a person upon whom process might be served and that no designation has been filed. Sworn to before me, this day of , 19 (Signature and title of officer.) R. D. '■ This form would be important if the attachment had been sustained on the gi-ound that the defendants were residents of the State and ha'd been without the Sta:te for more than six months. But as it was sustained on the ground that the papers showed that they were nonresidents this form became immaterial, as did the allegations to the same effect in the principal affidavit, Form No. 274, ante. 440 bradbuky's lawyers' manual Warrant of Attachment FORM NO. 277 Warrant of Attachment; Breach of Contract for Exclusive Agency with a Claim for Prospective Damages; Defendant Foreign Corporation ^ New York Supreme Court, New York County. Ernst Schreiber, Plaintiff, against Gem Stopper Company, Defendant. People of the State of New York. To the Sheriff of the County of New York, Greeting: Whereas, an application has been made to the imdersigned by the plaintiff herein, E. S., for a warrant of attachment against the property of the Gem Stopper Company, defendant, and it satisfactorily appearing to me by the affidavit of said E. S., sworn to the day of , 19 , and by the summons herein, that the action is brought to recover a sum of money only, as damages for breach of an express con- tract, other than a contract to marry, and that a cause of action therefor exists against said defendant and in favor of said plaintiff for the sum stated in the affidavit, to wit: $50,208, and that the plaintiff is entitled to recover said sum over and above all counterclaims known to him and that the defendant is a foreign corporation organized and existing under and by virtue of the laws of Pennsylvania and the plaintiff having given the undertaking required by law, You are hereby commanded to attach and safely keep so much of the property within your county which the said defendant. Gem Stopper Company, has or which it may have > From Schreiber v. Gem Stopper Co., 168 App. Div. 60; 153 Supp. 878. See succeeding form of affidavit from this case. ATTACHMENTS 441 Affidavits and Exhibits on Attachment in an Action for Breach of a Contract at any time before final judgment in this action as will satisfy the said plaintiff's demand of $50,208 with interest and costs; and that you proceed herein in the manner and make your return within the time prescribed by law. Witness : Hon. Peter A. Hendrtck, Justice of the Supreme' Court at the County Courthouse in the County of New York, this day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. BoUVIEE & DUGRO, ESQS., Attorneys for Plaintiff, 140 Broadway, New York City. FORM NO. 278 Affidavits and Exhibits on Attachment in an Action for Breach of a Contract for Exclusive Agency and for Prospective Damages; Foreign Corporation Defendant ^ New York Supreme Court, New York County. Ernst Schreiber, Plaintiff, against Gem Stopper Company, Defendant. State of New York \ SS ' County op New York Ernst Schreiber, being duly sworn, deposes and says: That he is the plaintiff above named and resides at 518 West 143d Street, in the Borough of Manhattan, City of New York, and, at all the times hereinafter mentioned, was and now is ' From Schreiber v. Gem Stopper Co., 168 App. Div. 60; 153 Supp. 878. See preceding form for warrant from this case. 442 Bradbury's lawyers' manual Affidavits and Exhibits on Attachment in an Action for Breach of a Contract the president of Fischer, Bryce & Schreiber, Inc., a corpora- tion doing business at 339 Pearl Street, New York City. That at all said times he and the said corporation were dealers in paints and dairy supplies. That at all said times, the Gem Stopper Company, the defendant above named, was and now is a Pennsylvania corporation engaged in the business of the manufacture of bottle stoppers, including tin miUc tops, and a special variety thereof known as Lightning Tin Tops for milk bottles and the wire trimmings for fastening the same. That in or about November, 1912, deponent had an inter- view with Mr. Noyes, one of the purchasing agents of the Borden's Condensed Milk Company in this city, and secured from him a sample milk bottle stopper with the said agent's consent, with a view to finding some concern which would manufacture such tin tops at a price satisfactory to the said company. Deponent took the sample tin top, upon which was im- pressed the name "Borden's Condensed Milk Co." and apphed at a considerable number of concerns which made similar articles, but was unable to find anyone who would make a stopper of the kind needed by the Borden's Condensed Milk Company, until he inquired at the offices of the Gem Stopper Company at Philadelphia^ Pa. An officer of that company stated that they could make tin tops, and submitted a mmiber of samples to deponent who took them back to the Borden's Condensed Milk Company in this city, and they were there- upon accepted as satisfactory and that company on the 16th day of December, 1912, gave deponent an order for 10,000 gross of lettered Lightning Tin Tops and trimmings for milk bottles. Deponent, thereupon, in the name of his firm or corporation ordered that niunber of tin tops from the Gem Stopper Company, and received and paid for the same, and sold them in turn to the Borden's Condensed Milk Company. Thereafter, other large orders were given in the same way by the Borden's Condensed Milk Company to deponent, and filled by him by ordering from the Gem Stopper Company in his own or business name. Thus deponent acted as agent ATTACHMENTS 443 Affidavits and Exhibits on Attachment in an Action for Breach of a Contract for the Gem Stopper Company in the sale of its Lightning Tin Tops, Finally, deponent's activities as agent were so successful and profitable to the Gem Stopper Company that that com- pany agreed to appoint the deponent its sole and exclusive agent in Ne\v York City to sell Lightning Tin Tops for milk bottles. Accordmgly, on April 30, 1913, Mr. E. P. Linch and Mr. George B. Rush, president and treasurer respectively of thfe Gem Stopper Company, drew up and signed in deponent's presence a contract, to which deponent assented, a copy of which is attached hereto, made a part of this affidavit and marked Exhibit A. Thereafter, deponent continued to sell the defendant's stoppers, pursuant to the contract of April 30, 1913, and the arrangement was so successful to both parties that on the 20th day of February, 1914, before the previous agreement had run out, the defendant entered into a further contract appointing deponent its sole agent in New York City and elsewhere for the sale of its Lightning Tin Tops to various purchasers in- cluding the Borden's Condensed Milk Company, until October, 1918. This agreement was signed by deponent and the de- fendant's officers; is dated February 20th, 1914, a copy is hereto annexed, made a part of this affidavit and marked Exhibit B. In reply and on March 2d, 1914, deponent wrote a further letter to the defendant company, confirming the agreement of February 20, 1914, and signing himself sole agent. A copy of this letter is attached hereto and marked Exhibit C. To this letter deponent received no reply, but continued tfi act as the defendant's exclusive agent under the said contract, and to sell its Lightning Tin Tops. The first transaction under the exclusive contract of agency, dated April 30th, 1913, took place on May 3, 1913, when the Borden's Condensed Milk Company bought from the defendant 75 gross of the Lightning Tin Tops with trimmings, deponent paying there- for $45.00 and selling the same to the Borden's Condensed Milk Company for $69.38. Similar transactions took place 444 Bradbury's lawyers' manual Aflfidavits and Exhibits on Attachment in an Action for Breach of a Contract on an average of every two or three days upon which deponent made corresponding profits until September 24, 1914. During the period between May 3, 1913, and September 24, 1914, deponent bought from the defendant Gem Stopper Company in all. Lightning Tin Tops and trimmings at a total price of $36,425.16, and sold the same to the Borden's Con- densed Milk Company at a total price of $55,886.65. In other words, the total purchases made by deponent from the de- fendant amounted to $36,425.16, while the total sales of the same articles to the Borden's Condensed Milk Company amoimted to $55,886.65. Upon these transactions deponent paid freight amounting to $1,676.58, making his total expendi- tm-es $38,101.74, leaving a profit from his exclusive agency during the said period of 17 months of $17,784.91, represent- ing an average monthly profit of $1,046. Other than the freight charges already referred to, these transactions neces- sitated no expenditiu-es or disbursements by deponent or his business concern. On October 13, 1914, the defendant Gem Stopper Company repudiated the contract of exclusive agency of deponent and wrote a letter to him, a copy whereof is attached hereto, made part of this affidavit and marked Exhibit D. Deponent re- phed by sending a registered letter to the defendant, dated October 14, a copy of which is hereto annexed, made a part of this affidavit and marked Exhibit E. No reply was received, and on October 15, 1914, Mr. Hans Fischer, deponent's busi- ness associate, wrote a registered letter to the defendant, a copy whereof is hereto annexed, made a part of this affidavit and m^ked Exhibit F. To this communication deponent re- ceived no reply, and accordingly made a trip to the office of the defendant at Philadelphia, and saw Mr. E. P. Lynch, the president thereof, who told deponent that he had nothing to say, and refused to explain the attitude of the Gem Stopper Company, or the reason for its breaking the contract. Depo- nent alleges that he was guilty of no bad faith or imfair deal- ings between the parties, and did nothing contrary to the terms or spirit of the contract of exclusive agency, which he ATTACHMENTS 445 Affidavits and Exhibits on Attachment in an Action for Breach of a Contract had with the defendant and gave it no just or legal excuse for repudiating said contract. The said contract and the agency created thereby was by its terms to continue until October, 1918, or a period of four years from the time when the defend- ant repudiated and breached the same. Upon information and beUef that during that period de- ponent would have continued to sell the defendant's Lightning Tin Tops to the Borden's Condensed Milk Co. at an average profit to himself the same as that actually earned during the seventeen months in which the exclusive agency was in full force and effect. In addition to this natural presumption may be added the fact that deponent made application at a number of concerns manufacturing similar goods and they were unable or imwilling to make the type of tin tops needed by the Bor- den's Condensed Milk Company. Moreover, George B. Rush, the treasurer of the defendant Gem Stopper Company, during one of the various interviews that deponent had with him said that the Borden's Condensed Milk Company had been using for their milk bottles stoppers made by the Gem Stopper Company for fifteen or twenty years. Upon information and belief that said company is still using the defendant's stoppers, and that the defendant sells to them direct. In other words, deponent would have made up to October, 1918, an average profit of $1,046 a month or a total profit of $50,208. The value of deponent's contract, therefore, of which defendant has deprived him is $50,208. The Gem Stopper Company, the above-named defendant, is therefdre justly and truly indebted to deponent, the plaintiff above named, in the sum of $50,208, no part of which has been paid, and said sum is now due and owing to the plaintiff. There are no offsets or coimterclaims in the defendant's favor against the plaintiff or debts due or owing from the plaintiff to the defendant, and the plaintiff is justly entitled to recover from the defendant the said sum of $50,208 over and above all counterclaims known to him. That the defendant, the Gem Stopper Company, is a foreign corporation, created and existing under and by virtue of the 446 Bradbury's lawyers' manual Affidavits and Exhibits on Attachment in an Action for Breach of a Contract laws of the State of Pennsylvania. Of this fact deponent has personal knowledge which he has acquired in the course of numerous business dealings with the defendant and its ofl&cers, whom he personally knows. In addition deponent knows that the principal office of the company is at 2120 Nicholas Street, Philadelphia, Pa., and has often visited the offices of the company there, and there has interviewed the officers of the company. Deponent, moreover, has secured a report from the Bradstreet's Mercantile Agency, which shows the Gem Stopper Company is a Pennsylvania corporation, char- tered in 1901. Deponent furthermore has seen a letter written by the secretary of the commonwealth of Pennsylvania to his attorneys, Messrs. Bouvier & Dugro, in answer to an inquiry made by them as to whether or not the defendant is a Pennsyl- vania corporation. This letter says : "That our records show the Gem Stopper Company to have been incorporated by this Commonwealth, July 29, 1901, with principal office in Philadelphia, Pa." The above-entitled action is about to be commenced for the above-stated cause and the annexed siunmons herein has been issued and is to be served upon the defendant. No previous or other appUcation for an attachment of the said defendant's property has been made in this action, or upon the cause of action set forth herein.^ Sworn to before me, this Ernst Schreiber. 29th day of December, 1914. Godfrey Cohen, Notary Public, N. Y. County, 675. ' Attached to the affidavit was the correspondence between the parties which is reproduced in the following pages, omitting only the headings of the letters and the signatures. Exhibit A was a letter from the defendant to the plaintiff, dated April 30, 1913, the body of which was as follows: , . "Agreeable to conversation held at our office this day, we hereby appoint from this date Mr. Ernst Schreiber of Now York, N. Y., a member of the firm of Fischer, Bryoe & Schreiber of New York, N. Y., our sole agent in New York, N. Y., to ATTACHMENTS 447 Warrant of Attachment on Certified Check FORM NO. 279 Warrant of Attachment on Certified Check Where Defendant a Foreign Corporation ; Assigned Claim ^ The People op the State of New York: To the Sheriff of the County of New York: Whereas, an apphcation has been made to the undersigned by the plaintiff, J. H. McM., for a warrant of attachment against the property of the R. T. Co. of Newark, N. J., a cor- sell Lightning Tin Tops for Milk Bottles. This agency to be in force until Janu- ary 1, 1915. It is understood at this writing that Mr. Schreiher will forward all orders to us that he receives for the above mentioned goods through the firm of Fischer, Bryce & Schreiber, or any other responsible company that he may decide upon." Exhibit B was a letter from the defendant to the said plaintiff, dated Feb. 20, 1914, the body of which is as follows: "We beg to inform you this twentieth day of February, 1914, that our agree- ment of April 30, 1913, is in full force, appointing you our sole agent for New York, N. Y.; also including Newark, N. J. and Hoboken, N. J., and that -this agreement includes all branches of the Borden's Condensed Milk Company, no matter where located, for the sale of Plain and Retinned Lightning Tin Tops and Wire Trimmings for Milk Bottles. "We agree to refer all inquiries and orders to you for your attention, and no quotations will be made direct to prospective buyers in your territory, unless specific arrangements be made in each individual case, between us. You agree that you will sell no competing Knes of Plain or Retinned Lightning Tin Tops and Wire Trinmiings for Milk Bottles, to that manufactured by us. This agreement to be in force until October, 1918. Nineteen hundred and eighteen. * =.: * * * * * * The above accepted, agreed to, and executed in duplicate this 20th day of February, 1914. Gem Stopper Company, By E. P. Linch, President, By Geo. B. Rush, Treasurer. By Ernst Schreiber. Exhibit .C was a letter from the plaintiff to the defendant, dated March 2, 1914, the body of which was as follows: "Your letter of the 20th ult. duly received and in reply permit me to say that ' Adapted from McMahon v. Roseville TruM Co., 159 App. Div. 640; 144 Supp. 841. See also from the same case the complaint, Form No. 280 and a,ffidavit on which the attachment was, granted. Form No. 281. 448 Bradbury's lawyers' manual Warrant of Attachment on Certified Check poration organized and existing under the laws of the State of New Jersey, defendant, and it satisfactorily appearing to me by the affidavit of J. H. McM., sworn to the day of , 19 , and by the summons and verified com- plaint in this action that the action is brought to recover a sum of money only as damages for breach of contract, express I hereby accept the terms contained in said agreement confirming the agreement of April 30, 1913, appointing me your Sole Agent in New York, N. Y., also including Newark, N. J., and Hoboken, N. J., including also all branches of the Borden's Condensed Milk Company no matter where located for the sale of Plain & Retinned Lightning Tin Tops & Wire Trimmings for Milk Bottles and of course it is understood and agreed that you refer all inquiries and orders to me for my attention and that no quotations will be made directly or indirectly to prospective buyers in the territory over which I have control unless special arrangements shall be made between your company and myself. " It is also understood that I shall sell no competing lines of Plain or Retinned Lightning Tin Tops or Wire Trimmings for Milk Bottles which are not manufac- tured by your company. " The term of the agreement to remain in force until October, 1918, is agreeable to me. " I will consider this and your letter an agreement between your company and myself for the term and under the conditions mentioned therein." Exhibit D was a letter from the defendant to the plaintiff, dated October 13, 1914, the body of which was as follows: "The arrangement stated in our letter to you under date of February 20, 1914, was necessarily founded in, as its continuance was dependent upon the observance of the utmost good faith and fair dealing between th6 parties. We have lately received information of methods practiced by you (and of which you are, of course, more fuUy cognizant) which violate the fundamental conditions of mutual trust essential to such relations as we have had with you. We must decline, therefore, to have any further dealings with you upon the terms of our said letter of February 20, 1914." Exhibit E was a letter from the plaintiff to the defendant, dated October 14, 1914, the body of which was as follows: "Your registered letter of the 13th inst. came this morning and the mysterious and insulting tone surprises me in as much as just a very few days ago I received communication from you which did not indicate anything of your present insults, etc. Your insinuation that I am cognizant of unfair dealings with. you or any other party or parties puzzles me and I expect that you will give me your facts upon which you base your letter. It is understood that I will hold you to our agreement until its expiration." Exhibit F was a letter from the plaintiff's associate to the defendant, dated October 15, 1914, the body of which was as follows: "Our Mr. Schreiber turned over to the writer your letter of October 13th, ac- ATTACHMENTS 449 Warrant of Attachment on Certified Check or implied, other than a contract to marry, to wit: to recover a certain sum of money due to the plaintiff upon two certain checks certified by the defendant and that a cause of action therefor exists against the said defendant in favor of the plain- tiff for the sum stated in said affidavit, to wit: dollars, and that the plaintiff is entitled to recover said sum over and above all counterclaims known to him, and that the said defendant is a foreign corporation organized and existing under the laws of the State of New Jersey and is a nonresident of the State of New York and the plaintiff having also given the imdertaking reqiured by law. You AEE HEREBY COMMANDED to attach and keep safely so much of'the property within your county which the said R. T. Co. of Newark, N. J., has or which it might have at any time before final judgment in this action as will satisfj^the plaintiff's demand of dollars, with interest, together with costs and expenses and that you proceed herein in the manner and make jowc retiirn according to law. Witness: Hon. Bartow S. Weeks, Justice of the Supreme Court, this day of , 19 , in the Coimty Courthouse in the County of New York. Bartow S. Weeks, Breed, Abbott & Morgan, Justice of the Supreme Court Attorneys for the Plaintiff, of the State of New York. 32 Liberty St., New York City. cusing him in a vague way of methods practiced which violate fundamental conditions of mutual trust essential to relations he had with you. " You also state that you decline to have any further dealings with him. " Having been associated with Mr. Schreiber for quite some time I herewith ask you to inform me at once as to the nature of your accusations. " As far as I remember our business with your firm has always been very satis- factory and no doubt, a call at our office by your Mr. Rush and Mr. Linch would throw some Ught on this matter. " From your letter it is impossible to draw even the slightest conclusions. " Your immediate reply, or a word from you when I may expect to see you, at our office will greatly oblige." 1 450 Bradbury's lawyers' manual Complaint on Application for Attachment on Certified Checks FORM NO. 280 Complaint on Application for Attachment on Certified Checks When Defendant is a Foreign Corporation ; Assigned Claim '■ New York Supreme Court, New York County. James H. McMahon, Plaintiff, against RosEviLLE Trust Company, op New- ark, New Jersey, Defendant. The plaintiff, complaining of the defendant, alleges: For a First Cause of Action I. At all the times hereinafter mentioned the plaintiff was and still is a resident of the Borough of Manhattan, City, County and State of New York. I. At all the times hereinafter mentioned the defendant was and still is a foreign corporation organized and existing under the laws of the State of New Jersey and engaged in carr3dng on the business of banking in the City of Newark, County of Essex, State of New Jersey. III. That on or about the day of , 19 , H. I. & P. Co., a corporation organized and existing rnider the laws of the State of New Jersey, made its check, in writing, bearing date on that day and directed it to the defendant bank and thereby required said defendant bank to pay to A. & Co. or order the sum of dollars and de- hvered the same to A. & Co. ' Adapted from McMahon v. RoseoiUe Trust Company, 159 App. Div. 640; 144 Supp. 841. See warrant of attachment from the same case, Form No. 279 ante, and affidavit on which the attachment was granted, Form No. 281, post. ATTACHMENTS 451 Complaint on Application for Attachment on Certified Checks IV. That on or about the day of 19 , the defendant bank, in writing, executed and certified said check, which check has since been duly presented to the defendant for payment, but no part thereof has been paid. (That at the time of said presentation for payment the said check was duly endorsed by said A. & Co.)^ V. That thereafter and on or about the day of ,19 , the claim against defendant on said check was duly assigned by A. & Co. to the plaintiff in this action. For a Second Cause of Action VI. Plaintiff repeats and realleges the allegations con- tained in paragraphs I and II herein. VII. That on or about the day of , 19 , H. I. & P. Co., a corporation organized and existing under the laws of the State of New Jersey, made its check in writing, bearing date on that day and directed to the defend- ant bank and thereby required said bank to pay to A. & Co. or order the sum of dollars and delivered the same to A. & Co. VIII. That on or about the day of , 19 , the defendant bank, in writing, executed and certified said check, which check has since been duly presented to the defendant for payment, but no part thereof has been paid. (That at the time of said presentation for payment the said check was duly endorsed by said A. & Co.)^ IX. That thereafter, and on or about the day of ,19 , the claim against the defendant on said check was duly assigned by A. & Co. to the plaintiff in this action. Wherefore plaintiff demands judgment against the de- '■ The complaint in this case did not have an allegation that the check had been duly endorsed before it was presented to the bank. Such an allegation on a check is usually required although the complaint in this case was sustained with- out the allegation. ^ See preceding note. 452 Bradbury's lawyers' manual Affidavit on Attachment on Certified Checks fendant for the sum of dollars, with interest from the day of , 19 , with costs. Breed, Abbott & Morgan, Attorneys for Plaintiff, 32 Liberty Street, Borough of Manhattan, State of New York ] . New York City. County of New York J J. H. McM. being duly sworn, says that he is the plaintiff in the above-entitled action; that he has read the foregoing complaint and knows the contents thereof; that the same is true to his own knowledge, except as to the matters which are therein stated to be alleged on information and belief and as to those matters he believes it to be true. Sworn to before me, this 1 J. H. McM. day of , 19 . J {Signature and title of officer.) FORM NO. 281 Affidavit on Attachment on Certified Checks When Defendant is Foreign Corporation ; Assigned Claim ^ New York Supreme Court, New York County. James H. McMahon, ] Plaintiff, against ROSEVILLE Trust Company of Newark, New Jersey, Defendant. State of New York County of New York •ss: J. H. McM., being duly sworn, says: I. That he is the plaintiff in the above-entitled action and ' Adapted from McMahon v. Roseville Trud Co., 159 App. Div. 640; 144 Supp. ATTACHMENTS 453 Affidavit on Attachment on Certified Checks resides in the Borough of Manhattan, City, County and State of New York; that the Roseville Trust Company of Newark, N. J., the defendant above named, is a foreign corporation organized and existing under the laws of the State of New Jersey and is justly and truly indebted to the plaintiff in the smn of dollars for damages for a breach of a contract, other than a contract to marry, which amount is now due and owing to the plaintiff from the defendant, over and above all counterclaims known to the plaintiff,^ upon the following facts, to wit : On or about the day of , 19 , A. & Co., a corporation organized and existing under the laws of the State of New Jersey, received for value, from the H. I. & P., two certain checks in the sum of dollars and dollars respectively, drawn by the H. I. & P. Co. on the R. T. Co. of Newark, N. J., payable to the order of A. & Co., which checks were, on the day of , 19 , duly certified for payment by the R. T. Co. of Newark, N. J., and assigned to the plaintiff above named for value, and that the said J. H. McM. is now the owner and holder of the claim against the defendant on said checks. II. That the sources of deponent's knowledge and the in- formation relative to defendant being a foreign corporation is the attached telegram received from the Commissioner of Bank- ing of New Jersey, marked Exhibit A., and also the " Bankers Register," Volume 47, page 513, dated Jan., 1913, which is a well known and reliable authority in general use by bankers throughout the United States and which deponent, by past experience, has found contains rehable information regarding various banks and bankers throughout the United States; that according to this publication the defendant is a state bank, 841. See Warrant of Attachment from this case, Form No. 279, ante, and Com- plaint in this case, Form No. 280, ante. 1 When the claim is assigned a statement that the plaintiff is entitled to re- cover a specified sum over all counterclaims known to him is sufficient. The plaintiff need not state that he is entitled to recover such sum over all counter- claims known to his assignor. McMahon v. Roseville Trust Co., 159 App. Div. 640; 144 Supp. 841, and cases cited. 454 Bradbury's lawyers' manual Affidavit on Attachment on Certified Checks organized and existing under the laws of the State of New Jersey, with a banking office at Newark, New Jersey, with a capital stock of $100,000, and a siirplus of $91,000 and its President is W. P. 0. and its secretary and treasiirer R. E. S. ; that the sum of dollars is now justly due and owing to the plaintiff from the defendant by reason of the facts hereinbefore stated. That the above-entitled action is about to be commenced for the above-stated cause and the annexed summons has been issued. No previous application for a warrant of attachment against the property of said defendant has been made in this action. Sworn to before me, this day of , 19 {Signature and title of officer.) J. S. McM. EXHIBIT "A" August 15, 19 . Dated, Trenton, N. J., /15 To B. & A. & M., 32 Liberty Street, New York. Roseville Trust Company of Newark, N. J., was incorporated under Chapter 174, Laws of New Jersey, for the year 1899. Geo. K. LaMonte, Commissioner, Banking of Insm-ance. AtT'ACHMENT'S 455 Undertaking on Granting Warrant of Attachment FORM NO. 282 Undertaking on Granting Warrant of Attachment (Code Civ. Pro., § 640) New York Supreme Court, New York County. A. B., Plaintiff, against ' C. D., Defendant. Whereas, the above-named A. B., as plaintiff, has com- menced (is about to commence) an action for the recovery of money against the above-namedr-defendant, C. D., and has made (is about to make) an application for a warrant of attach- ment according to the provisions of the Code of Civil Procedure against the property of the said defendant, oTi^the ground that said defendant is a nonresident of the State of New York (or briefly state the ground of the attachment) . Now, therefore, we, E. F., merchant, residing at Street, in the Borough of Manhattan, City, Coimty and State of New York, and G. H., banker, residing at Street, in the Borough of Manhattan, City, County and State of New York, do hereby, jointly and severally undertake that if the defendant recover judgment in the said action or if the warrant of attachment 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 two hundred and fifty dollars. Dated the day of , 19 . E. F. G. H. 456 Bradbury's lawyers' manual Undertaking on Granting Warrant of Attachment State or New York County of New York SS-: E. F., being duly sworn, deposes and says that he is one of the sureties named in the foregoing undertaking. That he is a resident of and a freeholder (householder) within the State of New York and is worth the sum of dollars over and above all his debts and habilities 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 1 E. F. day of , 19 . J (Signature and title of officer.) State of New York County of New York •ss: G. H., being duly sworn, deposes and says that he is one of the sureties named in the foregoing undertaking. That he is a resident of and a freeholder (householder) within the State of New York and is worth the sum of dollars over and above all his debts and liabiHties 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 | G. H. day of , 19 . . (Signature and title of officer.) State of New York 1 r SS * County of New York J On the day of , 19 , personally ap- peared before me E. F. and G. H., to me known and known to me to be the individuals described in and who executed the foregoing undertaking and they severally acknowledged to me that they executed the same. (Signature and title of officer.) ATTACHMENTS 457 Undertaking on Attachment by Surety Company Endorsement: I hereby approve the foregoing undertaking as to form, manner of execution and sufficiency of sureties. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York, FORM NO. 283 Undertaking on Attachment by Surety Company (Code Civ. Pro., §§ 640 and 811) Supreme Court, New York County. Jefferson D. Bremer, Plaintiff, against Charles E. Ring, Defendant. The above-named plaintiff having apphed to one of the Justices of this Court, for a warrant of attachment against the property of the above-named defendant, Charles E. Ring, under and by virtue of the Code of Civil Procedure, on the ground that the said defendant is a nonresident of the State of New York. Now, Therefore, The Empire State Surety Company, hav- ing an office and place of business at No. 84 William Street, in the Borough of Manhattan, City of New York, does hereby undertake that if the defendant recover judgment in this ac- tion, or if the warrant of attachment is vacated, the plaintiff above-named will pay all costs which may be awarded to the above-named defendant and all damages which the said de- fendant may sustain by reason of the said attachment, not 458 Bradbury's lawyers' manual Undertaking on Attachment by Surety Company exceeding the sum of two hundred and fifty ($250) dol- lars. Dated, New York, April 29, 1911. The Empire State Surety Company, By Harvey Self, Res. Vice President. Attest: EoMtJND A. Tallman, Assistant Secretary. At a regular meeting of the Board of Directors of The Em- pire State Surety Company, held at the ofl&ces of the Company, in the Borough of Brooklyn, New York City, on the 15th day of April, 1901, on motion, it was "Resolved, That the President, or either of the Vice Presi- dents, and the Secretary or Assistant Secretary of this Com- pany, be and they hereby are, authorized and empowered to execute and deliver and attach the seal of the Company to any and all bonds or other obligations for and on behalf of the Company." State of New York County of New York ss: I, Edmund A. Tallman, Assistant Secretary of The Empire State Surety Company, have compared the foregoing resolu- tion with the original thereof, as recorded in the Minute Book of said Company, and do hereby certify that the same is a correct and true transcript therefrom, and of the whole of said original resolution. Given under my hand and the seal of the Company at the City of New York, this 29th day of April, 1911. Edmund A. Tallman, Assistant Secretary. State of New York L Qg • County of New York On this 29th day of April, 1911, before me personally came Edmund A. Tallman, known to me to be the Assistant Secre- tary of The Empire State Surety Company, the corporation ATTACHMENTS 459 Undertaking on Attachment by Surety Company described in and which executed the foregoing instrument, who, being by me duly sworn, did depose and say that he resides in the City of New York in the State of New York and that he is the Assistant Secretary of said Company, and knows the corporate seal thereof; that the seal affixed to the foregoing instrument is such corporate seal, and was thereto affixed by order and authority of the Board of Directors of * said Company, and that he signed said instrument as Assistant Secretary of said Company by hke order and authority; and that he is acquainted with Harvey Self and knows him to be the Res. Vice President of said Company, and that the signa- tm-e of said Harvey Self subscribed to said instrument is in the genuine handwriting of said Harvey Self and was thereto subscribed by order and authority of said Board of Directors and in the presence of said deponent; and that the Uabihties of said Company do not exceed its assets, as ascertained in the manner provided in Section 3, Chapter 720 of the New York Session Laws of 1893. Charles A. Gardner, Notary Public, Kings County. Certificate filed in New York County. Endorsed: Approved under Section 811, of Code of Civil Procedure. Dated , 19 . Peter A. Hbndrick, Justice of Supreme Court . of the State of New York. 460 BRADBURY'S LAWYERS' MANUAL Undertaking by Attachment Creditor FORM NO. 284 Undertaking by Attachment Creditor Where the Property is Claimed by a Third Person (Code Civ. Pro., § 658) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Whereas M. N., Sheriff of the County of , has levied upon and taken into his custody under a warrant of attachment, made by Hon. Peter A. Hendrick, a Justice of the Supreme Court, and dated , 19 , issued and delivered to him in the above-entitled 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 the said Sheriff; and Whereas, said goods and effects have been claimed by (in behalf of) E. F. as his property; and Whereas, a jury duly empaneled by said Sheriff to try the validity of said claim, has found the property of said goods and effects to be of the said claimant, E. F. Now, therefore, we, G. H., merchant, residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, and I. J., Banker, residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, do hereby jointly and severally under- take, promise and agree to and with the said M. N., Sheriff as aforesaid, that we will indemnify and save harmless the said M. N. against all damages, costs and expenses in an action to be brought against him by any person, by the claimant, ATTACHMENTS 461 Undertaking by Third Person Who Claims Property his assignee or other representative, by reason of the levy upon, detention or sale of any of the goods or effects, by virtue of the attachment, not exceeding the sum of dollars {not less than twice the value of the good§ and effects and damages as determined by the jury and $250 in addition thereto). Dated the day of , 19 . E. F. I. J. {Affidavits of justification and acknowledgment as in Form No. 282, ante, page 455.) FORM NO. 285 Undertaking by Third Person Who Claims Property Taken Under an Attachment Against Another ' (Code Civ. Pro., § 658a) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Whereas, M. N., as Sheriff of the County of , has levied upon and taken into his custody xmder a warrant of attachment made by Hon. Peter A. Hendrick, a Justice of the Supreme Court, and dated , 19 , issued and delivered to him in the above-entitled action certain goods and effects supposed to be the property of C. D., described in the inventory thereof made and filed pursuant to law by the said Sheriff and said goods and chattels have been appraised as to the value of dollars, which goods and chat- tels are claimed by E. F. and said E. F. has applied (is about ' By giving such an undertaking as the above the third party is entitled to the possession of the goods, notwithstanding the plaintiff has given a bond to the Sheriff to indemnify him under § 658 in accordance with Form No. 284, ante, page 460. 462 Bradbury's lawyers' manual Undertalcing by Third Person Who Claims Property to apply) to the Supreme Court for an order discharging said attachment as to all (or specify any part thereof) of said prop- erty, Now, therefoTe, we, G. H., merchant, residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, and I. J., banker, residing at No. , Street, Borough of Manhattan, City, County and State of New York, do hereby jointly and severally undertake that in an action to be brought on this undertaking the said claimant, E. F., will estabhsh 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 exceeding the sum of dollars {twice the value of the goods claimed as appraised in the inventory of the property attached) . Dated the day of , 19 . E. F. G. H. (Add affidavits of justification, acknowledgments and approval as in Form No. 282, ante, page J^55.) ATTACHMENTS 463 Undertaking by Defendant on Application to Discharge Attachnment FORM NO. 286 Undertaking by Defendant on Application to Discharge Attachment (Code Civ, Pro., §'688) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Whereas the above-named defendant, C. D., has apphed to the Supreme Court (is about to apply) for the discharge of a warrant of attachment made by Hon. Peter A. Hendrick, a Justice of the Supreme Court, and dated , 19 , issued in the above-entitled action against the property of CD., the defendant therein, to M. N., Sheriff of the County of , and levied by said Sheriff upon the property of said defendant; Now, THEREFORE, we, E. F., merchant, residing at No. , Street, Borough of Manhattan, City, County and State of New York, and G. H., banker, residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, do hereby jointly and severally under- take that the said defendant will, on demand, pay to the said plaintiff the amount of any judgment which may be recovered in the above-entitled action against the said defendant not exceeding the sum of dollars, with interest. (At least equal to the amount of the plaintiff's demand or the appraised value of the property attached.) Dated the day of , 19 . E. F. G. H. {Add justification of sureties, acknowledgment and approval, as in Form No. 282, ante, page 455.) 464 BRADBURY'S LAWYERS' MANUAL Notice of Exception to Sufficiency of Sureties FORM NO. 287 Notice of Exception to Sufficiency of Sureties in Undertaking Given to Discharge an Attachment ^ (Code Civ. Pro., § 690) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please 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 the day of , 19 . To E. J., Esq., L. M., Attorney for the Defendant. Attorney for Plaintiff. '■ The plaintiff's attorney may, within three days after a copy of the under- taking has been served on him, give notice to the Sheriff that he excepts to the sufficiency of the sureties. Thereupon the sureties must justify upon hke notice and in like manner as bail as in arrest. See the forms for justification of bail in the chapter on Arrest. ATTACHMENTS 465 Notice of Motion to Vacate Attachment on Original Papers FORM NO. 288 Notice of Motion to Vacate Attachment on Papers on Which At- tachment was Founded New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that a motion will be made 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 Courthouse therein, on the day of , 19 , at the opening of com-t on that day or as soon thereafter as counsel can be heard, for an order vacating and setting aside a warrant of attach- ment granted by Hon. Samuel Greenbaum, a Justice of this court, on the day of , 19 , in the above- entitled action, on the papers on which said attachment was granted, on the ground {here set forth specifically the grounds on which the motion to set aside the attachment will be made, speci- fying particularly any irregularity in the papers) arid for such other, further and different relief as may be proper, with the costs of this motion. Dated the day of , 19 . To: E. F., G. H., Esq., Attorney for Defendant. Attorney for Plaintiff. 466 Bradbury's lawyers' manual Order to Show Cause on Motion to Vacate Attachment FORM NO. 289 Order to Show Cause on Motion to Vacate Attachment When Made on the Original Papers ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavit of C. D., sworn to the day of , 19 , and on the warrant of attachment made by Mr. Justice Hendrick herein on the day of ,19 , and on the complaint, affidavits and undertaking on which said attachment was granted, which were heretofore filed in the office of the clerk of the County of New York and on all proceedings had herein, let the plaintiff 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 Courthouse therein, on the day of , 19 , at the opening of court on that day or as soon thereafter' as counsel can be heard why said warrant of attachment should not be vacated and annulled on the ground that (here state the grounds of the motion and particularly point out any irregu- larities on which the motion is based), and for such other, further and different relief as may be proper, with the costs of this motion. Sufficient reason appearing therefor, service of this order and the affidavit on which the same was granted, on the plain- • If the motion is made on new affidavits by the defendant going to the merits of the cause of action or the grounds of the attachment, the facts should be set forth in the affidavit instead of a statement that the motion is to be made on the original papers. This, however, opens the door for the plaintiff to cure de- fects in the paper.s by additional affidavits. ATTACHMENTS 467 Affidavit to Secure Order to Show Cause tiff's attorney, on or before the day of 19 , shall be deemed sufficient. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. FORM NO. 290 Affidavit to Secure Order to Show Cause Why Attachment Should not be Vacated, When Motion is Made on Original Papers (Rules 25 and 37, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York f SS * County of New York C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action. That a warrant of attachment was issued herein by Mr. Justice Hendrick, on the day of , 19 , and that the Sheriff of the County of New York has levied under said warrant of attachment on the property of this defendant, and has so tied up the defendant's business that it is impossible for the defendant to continue his business while such levy remains in force. Deponent desires to move to vacate said attachment on the papers on which the same was granted on the ground that (here specifically state the grounds of the motion, particularly indicating any irregularities in the original papers) and there- fore asks for an order to show cause returnable in less than five days because of the great damage which will be done to 468 Bradbury's lawyers' manual Order Vacating (or Refusing to Vacate) Warrant of Attachment the deponent's business if the attachmefit is allowed to remain during the time which it would ordinarily remain if the motion was brought up on an ordinary notice of motion. The action is not yet at issue and the time of the defendant to answer does not expire until the day of , 19 , and the time appointed for holding the next trial term where the action is triable is the first Monday of , 19 . No previous application for an order to show cause has been made. Sworn to before me, this 1 C. D. day of , 19 . j {Signature and title of officer.) FORM NO. 291 Order Vacating (or Refusing to Vacate) Warrant of Attachment At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D., Defendant. A motion having been regularly made by C. D., the above- named defendant, to vacate a warrant of attachment hereto- fore granted in the above-entitled action by Hon. Peter A. Hendrick, a Justice of this Cotu-t, on the day of ,19 , on the ground that {here state the ground of the motion, specifying 'particularly any irregularity in the attach- ment papers), and said motion having come on regularly to be heard, Now, on reading and filing the notice of motion to vacate, ATTACHMENTS 469 Order Vacating (or Refusing to Vacate) Warrant of Attachment dated the day of ,19 (order to show cause made by Mr. Justice Hendrick, dated the day of , 19 ,) in favor of said motion to vacate with due proof of service thereof, and after reading the said warrant of attachment, summons, complaint, affidavits of and and the undertaking given on securing said warrant of attachment, all of which were heretofore filed in the office of the Clerk of the County of New York, and after hearing E. F., Esq., attorney for the defendant, in favor of said motion to vacate, and G. H., Esq., attorney for the plain- tiff, in opposition thereto, and due deliberation having been had, it is, on motion of E. F., attorney for the defendant. Ordered that said motion be and the same hereby is granted and that the attachment herein made by Mr. Justice Hendrick and dated the day of , 19 , be and the same hereby is in all respects annulled, vacated and set aside, and that the defendant recover of the plaintiff ten dollars costs of this motion. Or On motion of G. H., Esq., attorney for the plaintiff, it is Ordered that said motion to vacate said attachment be and the same is in all respects denied, with ten dollars costs to the plaintiff against the defendant. Enter, S. G., J. S. C. CHAPTER XXVI TEMPORARY INJUNCTION ^ FORMS NO. PAGE 292. Notice of motion for an in- junction 471 293. Order to show cause why temporary injunction should not be continued during the pendency of the action, which order also contains a temporary in- junction, pending the argu- ment of the motion 474 294. Order to show cause why injunction should not be granted restraining actions at law in an action of in- terpleader 476 295. Affidavit on motion for order to show cause with tem- porary stay restraining legal actions in an action of interpleader 478 296. Affidavit on motion for order to show cause with tem- porary stay restraining legal actions in an action of interpleader 479 297. Complaint; action for in- junction to stay legal ac- tions in an action of inter- pleader 481 298. General form of court order NO. PAGE granting injunction after a hearing either on notice of motion or order to show cause 483 299. Recitals of the enjoining por- tions of injunction orders 48.5 300. Affidavit of service of injunc- tion order, made by a judge, on a natural person. 504 301. Affidavit of service on a corporation of an injunc- tion order made by a judge 505 302. Affidavit of service of injunc- tion order when made by court 506 303. Undertaking on injunction. . 507 304. Notice of motion to vacate injunction order 509 305. Order to show cause why in- junction order should not be vacated 510 306. Affidavit to secure order to show cause why injunc- tion should not be vacated, when motion based on original papers 512 307. Order vacating order, or re- fusing to vacate, prelimi- nary injunction 513 1 It is well settled in this State that a court of equity has no inherent absolute power to grant interlocutory injunctions — that authority must be found in the Code of Civil Procedure. Bachman v. Harringlon, 184 N. Y. 458, and cases cited at page 462. Section 602 of the Code of Civil Procedure abolishes the writ of injunction, but provides that a temporary injunction may be granted by order, as provided in Article 1 of Title 2 of Chapter 7 of the Code. Section 603 of the Code provides for a temporary injunction when the right to an injunction de- 470 TEMPORARY UNTJITNCTION 471 Notice of Motion for an Injunction FORM NO. 292 Notice of Motion for an Injunction ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice, that on the annexed summons, the complaint herein verified the day of , 19 , and the affidavit of A. B., sworn to the day of pends upon the nature of the action, and Section 604 of the Code provides for a temporary injunction when the right thereto depends upon extrinsic facts. The remedy by injunction is broader than that afforded by attachment, in that it may be granted in any kind of an action upon proper showing, no matter whether the defendant is a resident or a nonresident or a, foreign or a domestic corporation. It is narrower than an attachment in the sense that as against nonresidents and foreign corporations the same evidence of some wrongful act either done or threatened must be presented, that is re- quired in the case of a resident or a domestic corporation. In the case of an attachment the warrant may be granted against a nonresident or foreign corpora- tion, speaking generally, merely by showing a cause of action. Whether or not an injunction will be granted during the pendency of an action rests largely in the discretion of the Special Term. This is the general rule which governs an appellate court, and while it has the power to review that discretion, it will not interfere unless it clearly appears that the discretion is improperly exercised. Content v. Metropolitan Street R. Co., 73 App. Div. 230; 76 Supp. 749; Syracuse and Oneida Co. v. Syracuse R. T. Co., 74 App. Div. 565; 77 Supp. 812; Davis V. Rosenstein, 56 App. Div. 220; 67 Supp. 629. But this rule does not apply to a permanent injunction where the facts conclusively show that it would be inequitable and unjust to grant it. McClure v. Leaycraft, 183 N. Y. 36. The papers required on an injunction are: (1) A summons, if a summons has not already been served on the defendant. (2) A complaint in all cases where the motion for a temporary injunction is ' The order may be granted upon or without notice, in the discretion of the court or judge, unless the defendant has answered, in which case it can be granted only by notice or an order to show cause. Code Civ. Pro., § 609. 472 BRADBURY S LAWYERS MANUAL Notice of Motion for an Injunction ,19 , a motion will be made 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 Courthouse therein, on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order enjoining, pending the trial of this action, the defendant from (here state the specific acts as to which the injunction is requested and as to which see the various recitals of made under § 603 of the Code and the right to an injunction depends upon the nature of the action. It is safe practice to provide a complaint in all cases. (3) An affidavit sustaining the allegations of the complaint in the nature of evidence, and under § 603 the complaint itself must show sufficient facts to in- dicate clearly that the plaintiff is entitled to the injunction. (4) An undertaking. The matter may be brought up on a notice of motion or on an order to show cause, and not infrequently the order to show cause grants a temporary injunc- tion pending the hearing of the motion, or until the further order of the court. If this practice is followed the undertaking should be filed at the time the order to show cause is given. On the hearing of the motion the court may modify the undertaking as to the amount thereof. Where the matter is brought up on a notice of motion it is not necessary to file the undertaking until the court passes upon the motion and then the amoimt of the undertaking can be determined at the same time, although an undertaking may be and sometimes is included in the motion papers when the matter is brought up on an ordinary notice of mo- tion, in which event the court may approve the undertaking, if the injunction is granted, or require a new one in a greater amount. On an application for an injunction under Code Civ. Pro., § 603, where the right to an injunction depends upon the nature of the action a complaint is ab- solutely essential as part of the moving papers and in the complaint there must be a demand for permanent relief which a court of equity can decree as well as a demand for a temporary injunction; and it must appear from appropriate allega- tions that the plaintiff is entitled to the injunction which is demanded. The complaint cannot be helped out by affidavits; much less can affidavits take the place of the complaint and act in lieu thereof. Gillelle v. Noyes, 92 App. Div. 313; 86 Supp. 1062; Huntington v. Cortland Home Telephone Co., 62 App. Div. 517; 71 Supp. 84; Stull v. Westfall, 25 Hun, 1; Heine v. Rohner, 29 App. Div. 239; 51 Supp. 427; Jacobs v. Mexican Sugar Refining Co., 44 Misc. 409; 89 Supp. 1000; Sanders v. Ader, 26 App. Div. 176; 49 Supp. 964; Woodbum v. Hyatt, 34 App. Div. 246; 54 Supp. 597; Goldman v. Corn, 111 App. Div. 674; 97 Supp. 926; Leonard v. Schmidt, 109 App. Div. 549; 96 Supp. 491; but affidavits may and usually must be submitted as evidence to support the allegations of the com- plaint. Heine v. Rohner, 29 App. Div. 239; 51 Supp. 427; Stull v. Westfall, 25 Hun, 1. The complaint must show a cause of action, but it is sufficient that a prima TEMPORARY INJUNCTION 473 Notice of Motion for an Injunction matters enjoined in the forms of injunction orders in this chapter) and for such other, further and different relief as may be equi- table, with the costs of this motion. Dated the day of , 19 . Yours, etc.. To: C. D., E. F., Defendant, Attorney for Plaintiff . No. 1 Nassau Street, New York City. (If the action has been begun and the defendant has appeared by attorney.) To: G. E., Esq., Attorney for Defendant. facie case be made. McHenry v. Jewett, 90 N. Y. 58; Selchow v. Baker, 93 N. Y. 59. The essential allegations of a complaint in an action for an injunction are: I. That the plaintiff will suffer irreparable injury unless the injunction is granted and this must appear from appropriate allegations of facts not by a mere allegation that the plaintiff will suffer irreparable injury. Goldman v. Corn, 111 App. Div. 674; 97 Supp. 926; Gillette v. Noyes, 92 App. Div. 313; 86 Supp. 1062; Huntington v. Cortland Home Telephone Co., 62 App. Div. 517; 71 Supp. 84; Heine V. Rohner, 29 App. Div. 239; 51 Supp. 427; Brass v. Rathbone, 153 N. Y. 435; Kienle v. Gretsch Realty Co., 133 App. Div. 391; 117 Supp. 500; Ehrich v. Grant, 111 App. Div. 196; 97 Supp. 600; McHenry v. Jewett, 90 N. Y. 58; Fox v. Fitzpalrick, 190 N. Y. 259. II. It must be shown that the plaintiff will suffer substantial damages if the injunction is not granted, as a complaint showing that he will suffer nominal dam- ages only, is not enough to sustain an action for an injunction. Knoth v. Man- hattan Ry. Co., 187 N. Y. 243; Erie R. Co. v. Rochester C. E. T. Co., 57 Misc. 180; 107 Supp. 940; Bentley v. Empire Portland Cement Co., 48 Misc. 457; 96 Supp. 831. III. It must appear that the plaintiff comes into court with clean hands, al- though it is not necessary that the complaint should contain a special allegation to this effect. But if the court can see from the allegations of the complaint that the plaintiff does not come into court with clean hands, the complaint will be held insufficient. IV. It must appear clearly that the plaintiff has no adequate remedy at law. Erie R. Co. v. City of Buffalo, 180 N. Y. 192; Reis v. Graham, 122 App. Div. 312; 106 Supp. 645; Griffith v. Dodgson, 103 App. Div. 542; 93 Supp. 155; Kienle v. Gretsch Realty Co., 133 App. Div. 391; 117 Supp. 500; Savage v. Allen, 54 N. Y. 458; Jacobs v. Mexican Sugar Refining Co., 44 Misc. 409; 89 Supp. 1000. V. Where a temporary injunction is sought there should be a demand in the 474 Bradbury's lawyers' manual Order to Show Cause Why Temporary Injunction Should not be Continued FORM NO. 293 Order to Show Cause Why Temporary Injunction Should not be Continued During the Pendency of the Action, Which Order also Contains a Temporary Injunction, Pending the Argument of the Motion ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the summons herein and the complaint, duly verified the day of , 19 , and on the affidavit of A. B., sworn to the day of , 19 , and the undertaking dated the day of , 19 , let the defendant 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 Courthouse therein, on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, why an injunction order should not issue herein pending the trial of this action enjoining the defendant from (here state the matters as to which the injunction is requested, as to complaint for the temporary injunction as well as for the permanent injunction. Ellis V. Ellis, 55 Misc. 34; 106 Supp. 217, A verified complaint may be considered as an affidavit. Chirk v. King ct Bro. Pub. Co., 40 App. Div. 405; 57 Supp. 975. An order may be granted by the court in which the action is brought or by a judge thereof, or by any county judge. Code Civ. Pro., § 606. Thp order may be granted to accompany the summons or at any time after the commencement of the action and before final judgment. Code Civ. Pro., §608. ' Where an application for an injunction is made upon notice or an order to show cause, either before or after answer, the court or judge may enjoin the de- fendant until the hearing and decision of the application. Code Civ. Pro., § 609. TEMPORARY INJUNCTION 475 Order to Show Cause Why Temporary Injunction Should not be Continued which see recitak in injunction orders in this chapter) ' and why the plaintiff should not have such other, further and different relief as may be equitable with the costs of this motion. And the plaintiff having duly furnished an undertaking approved by the court, and dated the day of , 19 , it is further Ordered that pending the argiunent of this motion ^ the defendant, his agents and servants, are hereby enjoined from (here state the' particular acts as to which the defendants are en- joined pending the argument of this motion and until an entry of an order on said motion) . And sufficient reason appearing therefor service of this order on the defendant (the defendant's attorney), on or before the day of , 19 , shall be deemed sufficient. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. 1 The injunction order must briefly recite the grounds for the injunction. Code Civ. Pro., § 610. 2 It is sometimes the practice to make an order in the first instance restraining the defendant "pending the trial of the action or until the further order of the court" in which case the order is not in the nature of an order to show cause, but makes it incumbent on the defendant to make a special motion to vacate the temporary injunction granted ex parte. 476 Bradbury's lawyers' manual Order to Show Cause Why Injunction Should not be Granted FORM NO. 294 Order to Show Cause Why Injunction Should not be Granted Restraining Actions at Law in an Action of Interpleader '■ New York Supreme Court, New York County. B. Altman & Co., Plaintiff, against Ada Comstock and Leo Ornstein, Defendants. On the complaint in the above-entitled action verified the day of , 19 , which was heretofore duly filed in the office of the Clerk of the County of New York and the annexed affidavits of F. J. P. and S. H., both verified the day of , 19 , and the two undertak- ings of the U. S. F. & G. Co., in favor of the defendants respec- tively, duly executed and filed this day, let the defendants, A. C. and L. O., 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 Courthouse therein on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, why an order should not be made restraining the said defendants, their agents, servants, employes and attorneys, during the pendency of this action from taking any further proceedings against the plaintiff in this action in the actions brought by them respec- tively against said plaintiff, namely, the action brought by the said defendant, L. 0., in this court, and the action brought by the said defendant, A. C, in the Mimicipal Court of the City of New York, Borough of Manhattan, First District,^ ' Adapted from B. Altman & Co. v. Comstock, 165 App. Div. 160; 150 Supp. 662. See the complaint from the same case, Form No. 297 and the affidavit from the same case, Form No. 295; also the additional affidavit, Fonn No. 296. ^ It appears from the date of the verification of this complaint that it was veri- TEMPORARY INJUNCTION 477 Order to Show Cause Why Injunction Should not be Granted or from taking any other proceedings against the plaintiff in relation to the property described in the complaint and why the plaintiff in this action should not have such other, further or different relief as may be proper. And in the meantime and until the hearing and decision of the application under this order the said defendants, L. 0. and A. C. and each of them, their and each of their agents, servants and employes and attorneys are stayed and enjoined from taking any further proceedings in either of their said actions. Sufficient cause existing for the granting of this order and service thereon on the parties defendant or their attorneys within two days after this date, shall be deemed sufficient service. Dated, New York, the day of , 19 M. Warley Platzek, Justice of the Supreme Court of the State of New York. fied six days before the affidavit, Form No. 295, was sworn to and that therefore the action in the Municipal Court by the defendant, A. C, had not been begun when the complaint was verified, but had been begun when the affidavit of F. J. P. was sworn to. It was the beginning of this action apparently which called for the securing of the injunction, for while the interpleader action might have been brought to trial before the action at law in the Supreme Court by the defendant, L. O., the action in the Municipal Court by the defendant, A. C, would have been brought to trial in the ordinary course before the interpleader action could have been reached on the calendar. 478 Bradbury's lawyers' manual Affidavit on Application for Order to Show Cause with Temporary Stay FORM NO. 295 Affidavit on Application for Order to Show Cause with Temporary Stay Restraining Legal Actions in an Action of Interpleader * New York Supreme Court, New York County. B. Altman & Co., Plaintiff, against Ada Comstock and Leo Ornstein, Defendants. State of New York County op New York ss: S. H., being duly sworn, says that he is the attorney for the plaintiff in the above-entitled action; that the summons and a copy of the complaint in said action were duly served upon the defendants on the day of , 19 ; that the said action is not at issue; that neither of said de- fendants has appeared in the action. The time appointed for holding the next Special or Trial Term, where the action is triable, is the first Monday of , 19 . That a good and sufficient reason for the granting of the order to show cause with a stay of proceedings applied for, is that the summons in the action brought in the Municipal Court of the City of New York, Borough of Manhattan, First District, by the defendant, A. C, as mentioned in the affidavit of F. J. P., verified the day of , 19 , and hereto annexed, is returnable on the morning of the day of , 19 , and that the time for the plaintiff in this action to answer in the action brought against it by 1 Adapted from B. Altman & Co. v. Comstock, 165 App. Div, 160; 150 Supp. 662. See order to show cause from this case, Form No. 294 and complaint from thi.s case, Form No. 297; also additional affidavit. Form No. 296. TEMPORARY INJUNCTION 479 Affidavit on Application for Order to Sfiow Cause with Temporary Stay the said defendant L. 0. will expire on the day of ,19 . Sworn to before me, this 1 day of , 19 . J S. H. (Signature and title of officer) . FORM NO. 296 Affidavit on Application for Order to Show Cause with Temporary Stay Restraining Legal Actions in an Action of Interpleader ^ (Same Title as Preceding Form) State of New York go • County of New York ' F. J. P., being duly sworn, deposes and says that he is the Treasurer of the corporation, B. A. & Co., the plaintiff in the above-entitled action; that said action is brought to compel the defendants to interplead in respect to their conflicting claims to certain articles of personal property, deposited with the plaintiff, by the said A. C, claimed by her as her property, and the defendant, L. O., alleges that the said property was stolen from him, said L. O., by the said defendant, A. C, and that the said property is the individual property of the said defendant, L. 0. That as appears from the complaint, a copy of which is hereto annexed, that the plaintiff demands and is entitled, among other things, to a judgment against the defendants re- straining them by injunction from taking any proceedings against this plaintiff in relation to the property hereinbefore subscribed. That heretofore and subsequent to the deposit of the said articles with this plaintiff the said defendant, L. 0., com- menced in action in this court against this plaintiff to recover ' Adapted from B. Altman & Co. v. Comstock, 165 App. Div. 160; 150 Supp. 662. See order to sliow cause from this case, Form No. 294, and complaint from this case, Form No. 297; also additional affidavit, Form No. 295. 480 Bradbury's lawyers' manual Affidavit on Application for Order to Show Cause with Temporary Stay against the said property, which action is still pending, but in which no answer has yet been interposed. That subsequent to the commencement of the said action by the said L. 0. said defendant, A. C, began an action in the Municipal Court of the City of New York, Borough of Man- hattan, First District, against this plaintiff, joining the said L. 0. as a party defendant, having some claim to the said property, to recover possession of the same articles as those covered by the action of the said defendant, L. 0., in the Municipal Court action. No answer has yet been interposed on the part of this plaintiff, the summons issued in said last mentioned action being retm-nable on the day of , 19 . That further proceedings against this plaintiff in the ac- tions brought against it by the said defendants respectively during the pendency of this action, would produce direct in- jury to the plaintiff. That the summons in this action has been heretofore served upon the defendants. That the defendants have not yet ap- peared or answered. That no previous appUcation for an order to show cause applied for herein has been made. Sworn to before me, this \ F. J. P. day of , 19 . (Signature and' title of officer.) TEMPORARY mJUNCTION 481 Complaint; Action for Interpleader and Injunction FORM NO. 297 Complaint ; Action for Injunction to Stay Legal Actions in an Action of Interpleader ^ New York Supreme Court, New York County. B. Altman & Co., Plaintiff, against Ada Comstock and Leo Ornstbin, Defendants. The plaintiff, complaining of the defendants, alleges : I. That the plaintiff is and at all the times hereinafter mentioned was a domestic corporation. II. That heretofore, to wit, in the month of 19 , and before the making of the claims hereinafter mentioned the above-named defendant, A. C, deposited with the plain- tiff, for safe keeping, the following articles of women's apparel : One kit fox muff with three tails; one kit fox scarf, with two tails; one Hudson seal coat with kit fox. III. That the above-named defendant, L. O., claims the said articles as his own property, alleging that they- were stolen from him by the said defendant, A. C, prior to the deposit thereof, made by her as aforesaid. IV. That the said defendant, A. C, claims the same articles as being her own property at the time of said deposit and at all times thereafter. V. That each of the said defendants has demanded the de- livery of the said articles to him and to her respectively, the said defendant, L. O., having commenced an action in this court against the plaintiff to recover possession of the said articles, which action is pending, but in which no answer has yet been interposed. 1 From B. Altman & Co. v. Comstock, 165 App. Div. 160; 150 Supp. 662. See order to show cause from this case, Form No. 294; also affidavit from the same case, Form No. 295; also additional affidavit from this case, Form No. 296. 482 Bradbury's lawyers' manual Complaint; Action for Interpleader and Injunction VI. That the said plaintiff has no beneficial interest in or claim upon the said property; that it is indifferent between the claimants and ready and willing to deliver the said property to the rightful claimant, but is ignorant as to which is the rightful owner and cannot determine without hazard to itself to which of the claimants the property of right belongs; that the plaintiff is in real hazard by reason of its ignorance from the conflicting demands of said defendants. That the said plain- tiff is ready and wiUing to deliver the said property to such persons as the court shall direct. VII. That neither of said conflicting claims to the said articles was made with any collusion on the part of this plain- tiff and that this action is not brought by collusion with either of the defendants. Wherefore; the plaintiff demands judgment: • 1. That the defendants be restrained by injunction from taking any proceedings against the plaintiff in relation to the property hereinbefore described. 2. That the defendants be required to interplead together concerning their claims to the said property. 3. That some person be authorized to receive the said prop- erty pending said litigation. 4. That upon delivering the said property to such person the plaintiff be discharged from all liability to either of the defendants in relation thereto. 5. That the plaintiff have such other, further or different relief, as may be equitable, with costs of the action, to be paid out of the said property. S. H., Attorney for Plaintiff, No. 41 Wall Street, Borough of Manhattan, New York City. TEMPORARY INJUNCTION 483 General Form of Court Order Granting Injunction After a Hearing State of New York County of New York ss: F. J. P., being duly sworn, deposes and says that he is the Treasurer of the B. Altman & Co., the plaintiff named in the foregoing complaint; that said complaint is true of his own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this day of , 19 {Signature and title of officer.) F. J. P. FORM NO. 298 General Form of Court Order Granting Injunction After a Hearing Either on Notice of Motion or Order to Show Cause At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against CD., Defendant. The plaintiff herein having regularly made a motion for a temporary injunction pending the final determination in the above-entitled action, on the ground that {here state briefly the grounds of the injunction)^ and said motion having come on regularly to be heard. Now, on reading and filing the notice of motion (order to show cause herein made by Mr. Justice Hendrick), ' See Code Civ. Pro., § 610. 484 Bradbury's lawyers' manual Grneral P^orm of Court Order Granting Injunction After a Hearing dated the day of , 19 , and the complaint duly verified the day of , 19 , and the affidavit of A. B., sworn to the day of , 19 , together' with due proof of service of said papers on the defendant, C. D., and the undertaking given by the plaintiff upon securing the order to show cause hereinbefore recited, which undertak- ing was duly approved by a justice of this court on the day of , 19 , and filed in the office of the Clerk of the County of on said date, in favor of said motion, and after reading and filing the answer herein duly verified the day of , 19 and the affidavit of C. D., sworn to the day of , 19 , in opposition thereto, and after hearing E. F., Esq., attorney for the plaintiff in favor of said motion, and G. H., Esq., attorney for the defendant in opposition thereto, and due deliberation having been had. Now, on motion of E. F., Esq., attorney for the plaintiff, it is hereby Ordered (here state specifically the particular things to which the injunction relates as to which see various recitals specified hereafter)^ upon the plaintiff executing and deUvering an un- dertaking with sufficient sureties to be approved by a judge of this court in accordance with law in the sinn of dollars {if the plaintiff has already supplied an undertaking either in securing an order to show cause or as one of the motion papers, where the motion is made on notice of motion, and the court, upon the argument of the motion, decides that there should be a larger undertaking and a specific time is given to the plaintiff to supply the larger undertaking the recital in the order should ' An injunction order should be sufficiently definite and certain in stating what the party enjoined must do or refrain from doing so that it will not be necessary for the party enjoined to determine at his peril one or more of the principal issues to be tried in the action before deciding what, it anything, it is necessary to do in obedience to the order. Keeseville v. Keesemlle El. Co., 59 App. Div, 381; 69 Supp. 249; St. Regis Paper Co. v. Santa Clara Lumber Co., 55 App. Div. 225; 67 Supp. 149; Lyon v. Botchford, 25 Hun, 57. Its language should be so clear that an unlearned man can understand it without employing counsel. Laurie v. Laurie, 9 Paige, 234; Moat v. Holbein, 2 Edw. Ch. 1S8. See also next succeeding form for recitals of matters enjoined. TEMPORARY INJUNCTION 485 Recitals of the Enjoining Portions of Injunction Orders be in accordance with the facts), and that the plaintiff recover of the defendant ten dollars costs of this motion. Enter, S. G., J. s. c. FORM NO. 299 Recitals of the Enjoining Portions of Injunction Orders ^ The following recitals have been taken from actual cases, as therein indicated, showing the relief which has been actually granted in litigated cases in such orders. Intimidating, etc., by Labor Union. That the A. B. Union, its each and every member, said defendants and each of them, their agents, servants, representatives and coadjutors and all persons connected with them or either of them, be, and they hereby are, enjoined and restrained from assaulting, menacing, threatening or intimidating, whether by manner, attitude, speech, numbers or other act or means, the men and workmen in plaintiffs' employ, or who come to plaintiffs for employ- ment, and from interfering with said plaintiffs' business by any unlawful means for the purpose of preventing any person or persons who now are or may hereafter be in plaintiffs' em- ployment from continuing therein, or who being desirous of entering said emplojonent from doing so or continuing therein. (See People ex rel. Stearns v. Marr, 181 N. Y. 463.) Intimidating by Labor Union. 1. From advising or request- ing in such manner as to express or imply a threat, intimidation, coercion or force, whether by oral communications, by letters, or by printed circulars, the advertising customers of this plain- tiff, or persons who might become its advertising customers, to desist or refrain from advertising in its said newspapers or either of them, the "Sun" and the "Evening Sun." 2. From resorting to any species of threats, intimidation, force or fraud, to accomplish such purpose, or procuring other persons so to do; from preventing or attempting to prevent ' See notes to preceding Form No. 298. 486 Bradbury's lawyers' manual Recitals of the Enjoining Portions of Injunction Orders in such manner as to express or imply a threat, intimidation, coercion or force any newsdealer, newsboy, newsman or news- woman from selling the said newspapers of the plaintiff, the "Sun" and the "Evening Sun." 3. From resorting to any species of threat, intimidation, force or fraud to bring about such results; from picketing the establishment of this plaintiff at No. , . Street in the Borough of in the City of or any of the branch offices of this plaintiff in said City by stationing them- selves or others upon or along the streets or thoroughfares leading to its various places of business for the purpose of in- tercepting its employes while going to or returning from its said place of business, and by intimidation, threats, force, fraud or defamatory publications inducing or procuring them to quit the employment of this plaintiff, or from resorting to the like means at any time or place, or under any other circum- stances to induce, procure or compel the employes of this plaintiff or any of them to quit this plaintiff's employment. (See Sun P. & P. Assn. v, Delaney, 48 App. Div. 623; 62 Supp. 750.) Acts of the Police. From maintaining such alleged post within said plaintiff's place of business and upon the plain- tiff's premises, occupied by him at No. , Street, Borough of , City of , and also from keep- ing, stationing and maintaining within said plaintiff's place of business and upon plaintiff's premises any of the officers under his command, against plaintiff's will, or otherwise con- tinuing to trespass upon the said premises occupied by him. (See Hale v. Burns, 101 xlpp. Div. 101; 91 Supp. 929.) Nuisance.^ From operating its said turntable upon the premises mentioned in the complaint, and from the conduct of its business upon said premises in such manner as to amount to a nuisance to the plaintiff's said property from and after the day of , 19 . Nuisance. Blasting. From destroying, injuring or demol- 1 From Garoey v. L. I. R. Co., 159 N. Y. 323; in which the injunction (per- manent) was upheld. TEMPORARY INJUNCTION 487 Recitals of the Enjoining Portions of Injunction Orders ishing the building known as No. , Street in any way, and from blasting the said rock adjacent to the west wall thereof in such manner as to endanger the said premises occupied by plaintiff or the walls thereof. (See Hill v. Schneider, 13 App. Div. 299; 43 Supp. 1.) Nuisance; Railroad Switch.''- From using or maintaining the switch or siding constructed by .the defendant on Avenue, between and Streets, in the City of , as mentioned in the complaint herein. From using or maintaining any switch or siding on Avenue, between and Streets, in the City of From refusing to forthwith remove said switch or siding constructed by the defendant. Violation of Contract — Exclusive Right to Sell Book. From manufacturing or permitting to be xnanufactiwed, any copies, whether completed or partly completed, of the work known as the "People's Cyclopedia of Universal Knowledge," referred to in the said papers or by whatsoever other name the said work may be called, for or on account of the said defendant, H. W. K., or his servants, agents or assignees, or persons claiming under him directly or indirectly, and from seUing or delivering, or permitting to be sold or delivered, any copies of the said work, by whatsoever name it may be known,- to the said defendant, H. W. K., his agents, servants or assigns, or to any other person or persons other than this plaintiff, or pursuant to subscriptions obtained by the said defendant, The Methodist Book Concern, through canvassers or general agents, and at the same prices as those at which the said work has, prior to , 19 , been sold by the said Methodist Book Concern. (See Standard American Publishing Co. v. Methodist Book Concern, 33 App. Div. 409; 54 Supp. 55.) Disclosure of Secret Processes. From disclosing to any person or persons information concerning the various secret processes following, to wit: Mica pulp, gold size, mica size, and other 1 From Irvine v. Atlantic Ave. R. Co., 10 App. Div. 560; 42 Supp. 1103; and 23 App. Div. 112; 48 Supp. 465; in which the injunction (permanent) was upheld. 488 BRADBURY'S LAWYERS' MANUAL Recitals of the Enjoining Portions of Injunction Orders sizes, thin envelope gum, moulding gum, thick envelope gum, X X gum, label gum, flexible glue and flour paste, which are articles mentioned in the complaint hereto annexed, and which were purchased by plaintiff from one J. B. D.; from disclosing to any person, any information concerning the improvement in the above-mentioned articles, which defendant made while in the plaintiff's employ, as mentioned in the complaint hereto annexed, and also the process for making a long size to mix with gold gxun, which defendant discovered while in plaintiff's employ; and also from disclosing to any person or persons information concerning a certain size called gold gum, how to color micas, how to make a certain liquid glue, envelope gmn, rosin size, label gum, brick solution, a waU-paper size, a paper size, a grease-proof, a hquid black, a brewer's enamel, a leather- ette paper, water-proof for shoe blacking, a certain kind of leather paste, «asein paste, and a certain kind of thickening substance, all of which are secret processes which defendant learned from plaintiff's employes as mentioned in the com- plaint hereto annexed. From manufacturing, or in any way aiding in the manufac- ture of, any and all of the articles above mentioned. (See National Gum and Mica Co. v. Braendly, 27 App. Div. 219; 51 Supp. 93.) Contract in Restraint of Trade. Ordered that the defendants herein be, and they hereby are, restrained and enjoined, diuring the pendency of the action and until the further order of the court, from continuing in the employ of the C. D. Company in the business of selling ice within the corporate limits of the State of New York and from soliciting customers therefor, and from engaging, directly or indirectly, in the business of selling ice at retail or wholesale as principal, agent, servant, employe or otherwise, in the City of New York, or sohciting or attempting to solicit customers or orders for another without the written consent of the plaintiff. {See American Ice Co. v. Meckel, 109 App. Div. 93; 95 Supp. 1060; in which the order was affirmed, after being modified by limiting its scope to the City of New York.) TEMPORARY INJUNCTION 489 Recitals of the Eajoining Portions of Injunction Orders Contract in Restraint of Trade. From in any manner entering into competition with the plaintiff ... or engaging in the milk business, directly or indirectly, in the district or territory of Greater New York, either as principal or agent, or in any form or manner doing or becoming interested, directly or indirectly, in any milk business other than that of the plaintiff. From in any manner injuring, impairing or destroying the good will transferred from said defendant to the plaintiff. From either personally or by agent, servant or employ^ soliciting or interfering with any of the customers transferred from this defendant to the plaintiff. {See Mutual Milk & Cream Co. v. Tietjen, 73 App. Div. 532; 77 Supp. 287; in which the appeal was on the question whether the defendant violated the order by acting as his brother's milk-wagon driver. The court seemed to think it no violation, and, at any rate, only a technical contempt.) Contract in Restraint of Trade. From engaging, or in any manner being interested, directly or indirectly, for themselves or for others, in the City of New York, or in, or in the immediate vicinity of, any territory on or prior to the day of ,19 , dealt in or operated in by the Fish Company or the defendant S., or the agents or employes of the Fish Company, in catching, buying, selling, handling or dealing in any kind of fish, or other salt or fresh water products, the storage thereof, the manufacture of, or dealing in any manner in, fish products; and from engaging in, or in any manner being interested in, as aforesaid, any other kind or character of business the same as, or like, that con- ducted and carried on by the Fish Company, on and prior to the day of , 19 , or by its officers, agents, employes or assigns; and from soUciting or inviting other persons to buy from or sell to or otherwise deal with them or either of them; and from interfering with the business formerly of the Fish Company and by it sold, assigned and transferred to W. V. B., its good will, its trade or its cus- tomers; and from coming in competition with the plaintiff's business in the City of New York or the territory aforesaid; 490 BRADBURY'S LAWYERS* MANUAL Recitals of the Enjoining Portions of Injunction Orders and from interfering in any other way, directly or indirectly, with the said trade or business; and from doing any act preju- dicial to the same or any part thereof; and from enticing from the service of the plaintiff, or otherwise interfering with, the persons employed therein; and from using their aid or influence in regard to the plaintiff's said trade or business otherwise than for the promotion and advancement of the same. (See Booth & Co. V. Seibold, 37 Misc. 101; 74 Supp. 776; in which the_ injunction was upheld as to the two principal defendants, al- though modified as to certain others. A permanent injunction was granted later.) Contract in Restraint of Trade. From at any time hereafter, directly or indirectly, engaging in or becoming associated with any business of manufacturing, buying, selhng or deaUng in wall-paper, decorations, furnishings, or merchandise of like character other than that of the plaintiff, as principal, agent or employe, or in any other relation or capacity, or as stock- holder, director, trustee, agent, officer or employe of any cor- poration other than the plaintiff, engaged in the business of manufacturing, buying, selling or deahng in wall paper, deco- rations, furnishings, or in any similar business in any State or Territory in the United States east, northeast, south or south- east of the State of Washington. From, directly or indirectly, using, selling or disposing of, or permitting the use, sale or disposition of, the printing machines, or parts thereof, manufactured by the B. Needle Works, from or cast wholly or partly from castings, patterns, tracings or designs of parts of a printing machine taken from the plaintiff's factory on or about the day of , 19 . From soliciting the service or employment of any of the plaintiff's employes at the factory of R. S. H. & Co., and from negotiating with any such employes for service elsewhere, or from inducing or attempting to induce any such employes to abandon the plaintiff's employ, or from doing or suffering any act with respect to said business or the employes thereof to the injury of the good will thereof. (See National Wall Paper Co. v. Hobbs, 90 Hun, 288; 35 Supp. 932.) TEMPORARY INJUNCTION 491 Recitals of the Enjoining Portions of Injunction Orders Trade-Mark or Unfair Trade. ^ From' making use, in con- nection with the sale of tea not of plaintiffs' selection and im- portation, of the wrappers designated respectively "Plaintiffs' Exhibit B," and "Plaintiffs' Exhibit C,"and any imitation of the wrapper designated "Plaintiffs' Exhibit A," and from making use of the label marked "Plaintiffs' Exhibit E," and from making use of any imitation of the label marked "Plain- tiffs' Exhibit D," and from making any use of the label marked "Plaintiffs' Exhibit G," and from making use of any imitation of the label marked "Plaintiffs' Exhibit F," and from making use of the label marked "Plaintiffs' Exhibit I," and from mak- ing use of any imitation of the label marked "Plaintiffs' Ex- hibit H," and from making use to inclose tea not selected by plaintiffs of any wrapper or label to form a package or packages like those hereinbefore described as being used by the defend- ant, or any imitation of plaintiffs' form of package, hereinbe- fore described, and from making use as a name or in connection with the sale of tea not selected by plaintiffs of the designation "Black Package Tea," or any label or wrapper which when used shall give to such tea an appearance substantially the same as that of plaintiffs' tea. Trade-Mark or Unfair Trade.^ From in any manner using the words "Omega Oil" or the word "Omega" as a designation of any soap or other product manufactured, sold or dealt in by them or either of them, either in their individual names or under the name of The Omega Oil Medicated Soap Company, or otherwise; from advertising or representing that the soap manufactured by them is composed of Omega Gil as one of its ' From Fischer v. Blank, 138 N. Y. 244. The complainant was held entitled to injunctive relief, but the court directed this order to be modified, deeming it too broad. The court said the term "Black Package Tea," embodying merely the name of a color, was not distinctive enough for the plaintiffs to have an exclusive right to it, but "the use of such a name in connection with the particular form, style, color and embellishment of package set out in the complaint and findings, might properly be restrained." 2 From Omega Oil Co. v. Weschler, 35 Misc. 441; 71 Supp. 983; aff'd 68 App. Div. 638; 74 Supp. 1140. In this case, the order was upheld after being modified so as to strike out the part enjoining the mere use of the color green in the soap or on the wrapper or box. 492 BRADBURY'S LAWYERS' MANUAL Recitals of the Enjoining Portions of Injunction Orders constituents, or as possessing any of the qualities or virtues, of Omega Oil; from making or vending any soap of a greenish color and placing thereon the words "Omega OU" or the word "Omega"; from selling or exposing for sale any soap wrapped in green paper, or having thereon in any form a label contain- ing the words "Omega Oil" or the word "Omega"; and from selling or exposing any soap packed in a green box or package, or in any box or package, upon which appear the words "Omega Oil" or the word "Omega." Trade-Mark or Unfair Traded From using or doing business under the name of the B. G. G. Manufacturing Co. or the B. G. Novelty Co., or any similar name, calculated to deceive or confuse the customers of these plaintiffs; from using any de- signs, patterns, models, photographs, blue-prints, catalogues or copies thereof, belonging to these plaintiffs, or used by them in their business; from sending out such circulars as are annexed to the complaint herein, or similar circulars, calculated to deceive the customers of these plaintiffs; from appropiriating or using the system of numbers (described in the complaint and in the annexed circular of the defendants) devised by these plaintiffs exclusively for the conduct of their business with their customers; and also from using any similar number or numbers based upon such numbers or the system of nimibers and samples devised by these plaintiffs; and from using busi- ness and advertising signs, symbols, letter-paper, notices, envelopes and all other writings containing the name of the B. G. Novelty Co. or the B. G. G. Manufacturing Co., or any similar name calculated to deceive or confuse the customers oif these plaintiffs; that the said defendants turn over to these plaintiffs, at their place of business, No. , Street, City of , State of , all letters received by them, or their agents, attorneys, and servants, and addressed to the B. G. Novelty Co. or the B. G. G. Manufacturing Co. or the ' From Brown v. Braunsiein, 86 App. Div. 499; 83 Supp. 798; in which the appeal was on proceedings to punish for contempt. A permanent injunction was later granted, in accordance with the form in the text. Brown v. Braunsiein, S3 Supp. 1096. TEMPORARY INJUNCTION 493 Recitals of the Enjoining Portions of Injunction Orders B. G. Co., or any similar address containing the words "B. G." Trade-Mark or Unfair Trade. From in any manner employ- ing or using in connection with the preparation or sale of an insecticide, the word or words "Roachsalt," or any other word or term which is similar in sound to the word "Roachsault," or which so far resembles the word "Roachsault" as to be cal- culated to deceive or mislead purchasers into the belief in pur- chasing an insecticide bearing such other word or term, that they are purchasing the plaintiff's preparation. (See Barrett Chemical Co. v. Stern, 56 App. Div. 143; 67 Supp. 595.) Trade-Mark or Unfair Trade.^ From using, or causing to be used, the words, "D'r J. H. 's Universal Pills or Vegetable Liver Pills," or "D'r 's Universal Pills," or "D'r J. H. 's Universal Pills," upon any label or wrapper for boxes or other packages of piUs, resembhng or in imitation of the labels or wrappers or trade-mark of the com- plainant, described as Exhibit H, whether in style of engrav- ing, printing or lettering; and from vending or exposing for sale, or causing to be vended or exposed for sale, any article of pills haAdng upon the boxes or other packages thereof any such labels or wrappers so made in imitation of or resemblance to the said labels or wrappers of the complainant. Trade-Mark or Unfair Trade.'' From putting up and selhng or offering for sale the particular form of package which has been referred to in the bill and put in evidence as "Defendant's Second Package," or any other form of package which shall, by reason of the collocation of size, shape, colors, lettering, spacing and ornamentation, present a general appearance as closely resembhng the "Complainant's Package" referred to in the bill and marked in evidence, as does the said "Defend- ant's Second Package." 1 From McLean v. Fleming, 96 U. S. 245. The court affirmed the injunction (permanent injunction), though it held that the complainant's laches barred him from any allowance for gains and profits. 2 From N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 77 Fed. 869, in which it was held such an injunction should be granted. 494 Bradbury's lawyers' manual Recitals of the Enjoining Portions of Injunction Orders Unfair Trade. From advertising in the newspapers, or other- wise, in any way representing that the underwear sold by him, containing an admixture of cotton, is "Jaeger Underwear," or "Dr. Jaeger's Underwear," and from so using the words "Jaeger" or "Dr. Jaeger," in connection with the word "Gen- uine," or any other word or words, and from advertising or representing his said underwear by any designation containing the words "Jaeger" or "Dr. Jaeger," alone or in combination with other words. (See Dr. Jaeger^ Sanitary Woolen System Co. V. Le Boutillier, 5 Misc. 78; 24 Supp. 890.) Dissolution Agreement. It is ordered, that during the pend- ency of this action and until the further order of the court herein, the said defendant, S. S., be and he hereby is enjoined and restrained from aiding and assisting the defendant, M. S., in carrying on the business now or hereafter to be carried on by the said defendant, M. S., in the City of or else- where, with the business experience, advice and judgment of the said defendant, S. S., or from directly or indirectly assisting the said defendant, M. S., in the conduct of the said business so carried on by him, or to be carried on by him as aforesaid; but this order is not to be construed as enjoining and restraia- ing the said defendant, S. S., from loaning money to the de- fendant, M. S., to be used in the conduct of his said business, nor the said defendant, M. S., from receiving the same. The grounds of this injunction order are that the defendant, S. S., entered into an agreement with the plaintiff that he would not, directly or indirectly, engage in a similar business to that formerly carried on by the firm of S. & S., in any place within the State of New York, where the said firm had its stores on the day of , 19 , whUe the said plaintiff remained the owner thereof. (See Salzman v. Siegelman, 102 App. Div. 406; 92 Supp. 844.) Dissolution Agreement. From using the name "The National Shirt Waist Co."; from purchasing or attempting to purchase goods, wares and merchandise under the name or on the credit of the National Shirt Waist Co.; from selling or offering for sale any goods, wares and merchandise under the name "The TEMPORARY INJUNCTION 495 Recitals of the Enjoining Portions of Injunction Orders National Shirt Waist Co."; from exposing to the public any and all signs and cards, and from advertising or .offering any written or printed matter containing the name "The National Shirt Waist Co."; and from signing the name "The National Shirt Waist Co.," to any letter, bill, contract, receipt, check, note, draft, bill of exchange or other paper writings. (See Steinfeld v. Nail. Shirt Waist Co., 99 App. Div. 286; 90 Supp. 964.) Removal of Advertising Signs from New York Subway. From removing or interfering with the advertising signs, news stands and automatic vending and weighing machines, or any of them, in the stations of the rapid transit railroad operated by the plaintiff. (See Interborough R. T. Co. v. City of New York, 47 Misc. 221; 95 Supp. 886.) Erection of Building. From enlarging, extending or increas- ing its Terrace Depot, and from constructing or using addi- tional switches, turnouts or tracks in the Terrace. {See Diocese of Buffalo V. N. Y. C, etc., R. Co., 66 App. Div. 622; 72 Supp. 671.) Construction of Railroad. From constructing or attempting to construct a railroad upon that portion of the Kingsbridge road lying north of the southerly side of 181st Street and south of the northerly line of 182d Street, and from tearing up or in any way interfering with the surface of the said portion of the said Kingsbridge road. {See Beekman v. Third Ave. R. Co., 13 App. Div. 279; 43 Supp. 174; aff'd 153 N. Y. 144.) Interference with Construction of a Building.^ From interfer- ing with the plaintiff in the construction of the buildings pro- posed to be erected by the plaintiff on the premises known as Nos. to , Street, in the Borough of and City of , in accordance with the plans and specifica- tions filed by the plaintiff with the Building Department for 1 From Seagrist v. Stewart, 78 App. Div. 631; 79 Supp. 1105; in which the order was modified so as to avoid the possibility of its preventing the defendants from enforcing any of the provisions of the Tenement House Act which applied to tenements existing or those in process of construction prior to the enactments of 1901, and as modified upheld. 496 Bradbury's lawyers' manual Recitals of the Enjoining Portions of Injunction Orders the Boroughs of and of the City of , on , 19 , and duly approved by the said Building Department of the Boroughs of and of the City of , or the then Commissioner of Buildings, on ,19 , provided that the said buildings are built by the plaintiff in accordance with the laws in force prior to the day of , 19 , and in accordance with said plans and specifications so filed and approved as aforesaid. From enforcing any of the provisions of chapters 334 and 555 of the Laws of 1901, as against this plaintiff, and from enforcing or causing to be enforced the violation filed against the plaintiff and the said buildings in the office of the Bureau of Buildings for the Borough of and City of , on or about the day of , 19 . Interference, with Another's Business, Under Claim of Part- nership. From in any manner interfering or acting any longer as the manager of the Hotel Marty, Nos. , Street, City, Borough of , and from in any man- ner interfering with the management thereof or with the em- ployes in said business, or from in any manner using or divert- ing any of the property in said hotel, or from paying out any of the proceeds of said business, or from receiving any of the moneys of said business, or from living and residing in said hotel or entering upon the said premises except as a transient guest, or from selling, transferring, mortgaging, incumbering or disposing of the lease and license of said hotel, or from ask- ing, demanding, receiving or accepting from the postal authori- ties of the United States any letters addressed to the plaintiff or the Hotel Marty, or from using the trade-mark "Hotel Marty" in any manner or form whatsoever, or from selling, assigning, transferring, pledging or otherwise disposing of any of his property acquired through his connection with the Hotel Marty, or from confessing judgment to any person or persons as an alleged copartner of the plaintiff or with a view of giving preference to any persons over this plaintiff, or from in any way interfering with or from removing any of the property of the Hotel Marty, or in any way interfering with the plaintiff or TEMPORARY INJUNCTION 497 Recitals of the Enjoining Portions of Injunction Orders her agents or servants and employes individually and as receiver of the Hotel Marty in the peaceable enjoyment and possession thereof, or from circulating any reports det- rimental to said hotel. It is further ordered, that the Sheriff of the County of , be and he is hereby stayed and restrained from inter- fering with the business carried on and conducted at Nos. , Street, Borough of , City of , known as the Hotel Marty, and from in any manner levying upon, removing, selling or disposing of any of the property contained in premises Nos. , Street, Borough of , City of , known as the Hotel Marty Restaurant and Cafe, or in any manner interfering with the same, until after the final hearing and determination of this action. {See Marty v. Marty, 66 App. Div. 527; 73 Supp. 369.) Conspiracy to Injure the Plaintiff's Business. From keeping or in any manner using the copies of lists and records of the customers and patrons above named, either in whole or in part, and from using in any way the information or any part of the information derived from copies of said lists and records. (See Morris Europ. & Amer. Ex. Co. v. Merchants' Europ. Ex. Co., 67 App. Div. 616; 73 Supp. 538.) Suspension from Unincorporated Association. That he, they (agents, servants, etc.), and each and every one of them do absolutely desist and refrain from denying to the plaintiff any of the benefits of membership in said A. B. Association, from suspending or expelling the plaintiff, from taking further steps towards the prosecution of the plaintiff for the alleged violation of Article 13, Section 14, of the by-laws of said Association, from preventing or attempting to prevent members of said Association by threat, persuasion, speech, writing or otherwise from working with or for the plaintiff in his profession, from preventing or attempting to prevent the plaintiff obtaining work in his profession, from threatening other members of said Association with expulsion, suspension or fines if they work for or with the plaintiff. (See Bachman v. Harrington, 184 N. Y. 458.) 498 Bradbury's lawyers' manual Recitals of the Enjoining Portions of Injunction Orders Reorganizing a Corporation. From selling or disposing of any of the property or assets of the defendant Copper Co. or from taking any steps in connection therewith and ft-om proceeding in any manner with the proposed plan of reorgani- zation of the defendant company referred to and set forth in the circulars described in the annexed affidavit. [See Treadwell v. United Verde Copper Co., 47 App. Div. 613; 62 Supp. 708.) Disposal of Stock, or Voting Thereon.^ That the defendant both personally and by any agent, representative or proxy of his, be and he hereby is enjoined and restrained, during the pendency of this action, from voting upon the shares of the common and the shares of the preferred stock of the defendant corporation in the complaint referred to, or upon any of them, to the exclusion of this plaintiff, and at any meeting of the shareholders of the defendant corporation; that the said defendant , both personally and by any agent, representative or proxy of his, be and he hereby is restrained and enjoined, during the pendency of this action, from selling, assigning, transferring, pledging, or otherwise disposing of the said shares or any of them except only as may be mutually agreed upon by the said defendant and this plaintiff; and that the defendant corporation be and it hereby is en- joined and restrained, during the pendency of this action, from accepting or recognizing as valid any vote offered by the said upon the said shares of stock or any of them, except only as may be mutually agreed upon by the said defendant and this plaintiff. Prosecution of an Action.'^ From commencing, continuing or prosecuting any action or actions in this or any other court in 1 From Harper v. Smith, 93 App. Div. 608; 87 Supp. 516; in which the order was affirmed. The court said that the order was not justified as to the corpora- tion, for under Code Civ. Pro., § 1780, there was no jurisdiction, but as the cor- poration had not appealed, the order should not be modified in respect to it. 2 "The general rule of course is that equity will not entertain such an action as this to restrain an action at law unless special reasons demonstrate that full justice cannot be done in the latter action, and that an action in equity is neces- sary to secure to a party ■■ more complete enjoyment of the rights to which he is entitled than could be attained in the action at law." Burke v. Burke, 212 N. Y. TEMPORARY INJUNCTION 499 Recitals of the Enjoining Portions of Injunction Orders the State of New York or elsewhere, relative to the three hun- dred shares of the capital stock of the plaintiff mentioned in the complaint, or to the dividends thereon. That the plaintiff pay all the dividends as they may accrue upon the aforesaid three hundred shares of the capital stock of the plaintiff into this court to the credit of this action, to abide the further order and judgment of this court herein. (See American Press Association v. Brantingham, 57 App. Div. 399; 68 Supp. 285.) Prosecution of an Action. From prosecuting the action brought by the said A. B. Co. of , this defendant, against the L. Co., of , this plaintiff, in the Court, County of , and State of Connecticut, and from taking any further proceedings in said action dming the pendency of this action, and until the further order of this court. (See Locomobile Co. v. American Bridge Co., 80 App. Div. 44; 80 Supp. 288.) Prosecuting an Action at Law. From taking any step or proceeding whatsoever in the action of E. F. against S. C, pending in this court, and from in any manner persecuting, harassing, annoying or communicating with the plaintiff herein personally or by procurement or otherwise, by virtue of the matters set forth in the complaint in said action of E. F. against S. C. and the affidavits and moving papers herein, and from suing or prosecuting said S. C, at law or in equity in any other action or actions, proceeding or proceedings, by virtue of any alleged right, claim or demand whatsoever accruing or accrued, 303, at page 307. The court distinguishes the case of Bomeisler v. Forster, 154 N. Y. 229. To warrant a court of equity in restraining proceedings by order the equities invoking its jurisdictions should be apparent and strong. Kerngood v. Pond, 84 App. Div. 227; 82 Supp. 723. If the effect on injunctions gives to the plaintiff all the remedy to which he would be entitled, if he had finally succeeded in the action the court will not grant the injunction if the case is not free from doubt, and will leave the plaintiff to establish his rights at a trial where all the facts may be deliberately examined. Brighton Athletic Club v. McAdoo, 47 Misc. 432; 94 Supp. 391; Weiss v. Herlihy, 23 App. Div. 608; 49 Supp. 81; Connolly v. Van Wyck, 35 Misc. 746; 72 Supp. 382; Meyers v. City of New York, 58 App. Div. 534; 69 Supp. 529. 500 BRADBURY'S LAWYERS' MANUAL Recitals of the Enjoining Portions ot Injunction Orders or so claimed by her to be due and owing by plaintiff to said defendant F. prior to the day of , 19 , the date of said agreement of compromise and settlement and of the confirmation of said general release of the day of , 19 . {See Bomeisler v. Forster, 154 N. Y. 229.) Restraining Legal Proceedings, in Action to Dissolve Corpora- tion. From taking any further proceedings in the actions in the United States District Court for the Eastern District of New York, in which libels have been filed by or on behalf of said parties against said Steam Tow Boat Com- pany, or against the steamboats of said Steam Tow Boat Company, except the steamboat "N ," viz. the steamboats "A ," "B ," "S ,""C. V ,""J. L ," and any other boats of said company against which libels have been filed on behalf of said parties except the steamboat "N ." From further prosecuting or taking any action whatsoever, under said libels and each and all of them. From taking any proceedings looking to the condemnation and sale of said steamboats or any of them, except the steam- boat "N ." {See Matter of Schuyler's Steam Tow Boat Co., 136 N. Y. 169.) Disposal of Property, in Action to Dissolve a Corporation. That the defendant, The C. S. S. Co., and its president, di- rectors, officers, agents and servants are strictly enjoined from collecting or receiving any debt, demand or property of the said defendant, and from paying out or in any way transfer- ring or delivering to any person, any money, property, papers, accounts, or effects of the said company, or otherwise disposing thereof or interfering therewith in any way. {See Acken x. Coughlin, 103 App. Div. 1; 92 Supp. 700.) Restraining a Water Company from Disconnecting Pipes. Ordered, That the defendant, K. W. Co., and its officers, agents, servants and employes, and each of them, be, and they hereby are, enjoined and restrained, until the further order of the court, from cutting off or disconnecting the pipes supplying water to the house and premises of the plaintiff, at TEMPORARY INJUNCTION 501 Recitals of the Enjoining Portions of Injunction Orders No. , Street, in the City of , County of , State of New York, from the water system of the said defendant, and from shutting water off from the plain- tiff's house and premises at said No. , Street, in the said City of . {See McEntee v. Kingston Water Co., 165 N. Y. 27.) Removal of Fruit Stand.^ From taking or carrying away or otherwise injuring or interfering with the fruit stand situated and being in front of the house known as No. 89 Park Row, in the Borough of Manhattan, City of New York. Action to Declare Bill of Sale Collateral to a Debt. From the sale of the goods described in the bill of sale, a copy of which is set forth in the complaint, and that his (the defendant's) agents, attorneys, assigns and transferees be also restrained from such sale until the further order of this court. (See Castoriano v. Dupe, 145 N. Y. 250.) Action to Set Aside a Transfer.^ From taking possession of the teas now in the possession of the United States Govern- ment; or, if any such teas have been received back by the defendants, from parting with the possession of the same. From taking or receiving any moneys from the United States Government, or anyone else, in payment for said teas, or from taking or receiving any vouchers, receipts, or any other docu- ments, with reference to the said teas. From disposing and making away with any such vouchers or receipts which they may have in their possession. From otherwise interfering in any way with the property which they obtained from the plaintiffs, as aforesaid. Assignee Disposing of Proceeds of Sale of Stock Claimed by Plaintiff. From disposing of property in his possession, con- sisting of cash funds to the amount of five thousand dollars; and the said E. H. B., individually and as assignee of the firm of E. B. C. and Co., is hereby ordered to keep in his possession 1 From Rigas v. Livingston, 178 N. Y. 20, in which the appeal was on contempt proceedings, the order, apparently, not being questioned. 2 From Sheffield v. Cooper, 21 App. Div. 518; 48 Supp. 639; in which the ap- peal was on contempt proceedings, the order apparently not being questioned. 502 bkadbury's lawyers' manual Recitals of the Enjoining Portions of Injunction Orders and control the aforesaid sum of five thousand dollars pending the trial and determination of this action, and it is hereby further ordered that the said E. H. B., individually and as assignee, be allowed to apply to this court, upon notice, for an order modifying this injunction, the condition for such leave to apply being that the said E. H. B. will have presented to this court an order asking for leave to make a general distri- bution of the property of the firm of E. B. C. and Co. ; and it is further ordered that the aforesaid leave granted to said E. H. B. shall in no way prejudice the rights of the plaintiff under the injunction herein and that the aforesaid application for leave to modify said injunction shall be decided upon the merits when such appUcation is made as aforesaid. {See Adams v. Ball, 24 App. Div. 69; 48 Supp. 778.) Forfeiture of Stock for Nonpayment of Assessment. From forfeiting any part of the plaintiff's holdings in the defendant corporation, to wit, shares of the capital stock thereof, on the ground of the nonpayment of assessments called and payable prior to the commencement of this action. {See Schrietz v. German-Amer. R. E. Co., 21 App. Div. 163; 47 Supp. 501.) Underselling a Book, Contrary to an Agreement.^ From selling any copies of the said manual at the retail price of less than one dollar and twenty-five cents a copy, and from selling any copies of the said manual at wholesale and to the trade at a discount per copy greater than forty per cent of the said retail price, and from selling any copies of the said manual to the clergy and religious at a discount per copy greater than twenty-five per cent of the said retail price, except that, when the trade pur- chases $500 worth or over at any one time, then an extra ten per cent may be allowed ; and, except when the trade purchases $1,000 worth at any one time, then fifty per cent discount may be allowed ; and from in any way breaking or departing from the terms of the said agreement of the day of , 1 From Murphy v. Christian Press Asso. Pub. Co., 38 App. Div. 426; 56 Supp. 597 ; in which an injunction (permanent) vas held to be authorized. The above is taken from the complaint. TEMPORARY INJUNCTION 503 Recitals of the Enjoining Portions of Injunction Orders 19 , made between The C. Publication Society and J. M. & Co. Use of Private Road} From inviting or soliciting by signs erected on the lands so held by them as executors, or other- wise, persons to visit the beach in front of their said farm, or the bathing houses on said farm or beach, by, through or over the private road in question. From permitting persons visiting or using such bathing houses to pass over the private road in question, or them- selves passing over the said private road for the purpose of going to or from said bathing houses. From maintaining, continuing or erecting any sign or signs inviting any persons to use said private road in going to or from said beach or bathing houses of the defendant, H., or otherwise indicating to the public that people had a right to use said private road in going to or from such beach or bathing houses. From passing through the gate on foot or with vehicles, without closing gate immediately after, or permitting any persons visiting said beach or bathing houses of the defendant, H., to pass through such gate on foot or with vehicles without closing the same immediately afterwards. From interfering with the maintenance of such gate across such private road. From allowing or permitting persons visiting such beach or bathing houses of the defendant, H., to pull down or injure the fences on the premises of the plaintiffs or going thereon. 1 From Douglass v. Biish. 34 App. Div. 226; 54 Supp. 428; in which the appeal was on contempt proceedings the injunction (permanent) not being questioned. 504 BRADBURY'S LAWYERS' MANUAL Affidavit of Service of Injunction Order, Made by a Judge FORM NO, 300 Affidavit of Service of Injunction Order, Made by a Judge, on a Natural Person ^ New York Supreme Court, New York County. A. B., 1 Plaintiff, against CD., Defendant. State of New York County of New York ss: G. H., being duly sworn, deposes and says that he is over the age of twenty-one years (if between eighteen and twenty-one state age). That on the day of , 19 , at No. , Street, in the Borough of Manhattan, City, County and State of New York, he served the annexed order on the defendant, CD. above named, in the following manner: That at said time and place he showed to the said C D. the signature of the Honorable Peter A. Hendrick, Justice of the New York Supreme Court, subscribed to the original order and that then he delivered to and left with said C D. a true copy of said order and that he also delivered to and left with said C D. at said time and place true copies of the annexed summons, complaint and affidavits of A. B. and F. E., which complaint was verified the day of , 19 , and which affidavits were sworn to the day of , 19 , and also a true copy of the undertaking recited in ' In serving an injunction order, if the ordei- was granted by the court a cer- tified copy must be served and if it was granted by a judge it must be served by showing the signature of the judge on the original order and delivering a copy thereof. Service of the order upon a corporation may be made as prescribed in the Code for making personal service of a summons upon an officer of a corpora- tion. Copies of papers upon which the order was granted must be delivered with the copy of the order. Code Civ. Pro., § 610. TEMPORARY INJUNCTION 505 Affidavit of Service on a Corporation of an Injunction Order Made by a Judge said order which was dated the day of , 19 , and duly approved by said Justice Hendrick on the day of , 19 , which were the papers on which said order was granted. Deponent further says that he knew the person so served to be the said CD., the person described in said order and in said summons as the defendant in this action. Sworn to before me, this day of , 19 . {Signature and title of officer.) G. H. FORM NO. 301 Affidavit of Service on a Corporation of an Injunction Order Made by a Judge '■ New York Supreme Court, New York County. A. B., Plaintiff, against CD. Company, Defendant. State of New York 1 County or New York J E. F., being duly sworn, deposes and says that he is over the age of twenty-one years {if between eighteen and twenty-one, state age); that on the day of , 19 , at No. , Street, in the Borough of Manhattan, City and State of New York, he served the annexed order, sum- mons, complaint, affidavits of A. B. and G. H. and under- taking, on the C D. Co., in the following manner, to wit: At said time and place he showed to C. D., the President of the C D. Company, the signature of the Hon. Samuel Greenbaum on said original order and then delivered to and left with said 1 See note to preceding Form No. 300. 506 Bradbury's lawyers' manual Affidavit of Service of Injunction Order when Made by Court C. D., the President aforesaid, true copies of said order, summons, complaint, affidavits and undertaking. Deponent further says that he knew the person so served to be the said C. D., the President of the said C. D. Co., the corporation mentioned and described in the summons and in said order as the defendant in the above-entitled action. Sworn to before me, this day of , 19 {Signature and title of officer.) E. F. FORM NO. 302 Affidavit of Service of Injunction Order when Made by Court New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York J E. F., being duly sworn, deposes and says that he is over the age of twenty-one years (?/ between eighteen and twenty-one, state age); that on the day of , 19 , at No. , Street in the City and State of New York, he served the annexed order on C. D., the above-named defend- ant, by delivering to and leaving with said C. D. at said time and place a duly certified copy of said order, together with true copies of the annexed summons, complaint, affidavits of E. F. and G. H. and undertaking upon which said order was granted. Deponent further says that he knew the person so served to be the said CD., the person mentioned and described in the TEMPORARY INJUNCTION 507 Undertaking on Injunction foregoing summons and order as the defendant in the above- entitled action. Sworn to before me, this day of , 19 . {Signature and title of officer.) FORM NO. 303 Undertaking on Injunction (Code Civ. Pro., §620). New York Supreme Court, New York County. E. F. A.B., Plaintiff, against - CD., Defendant. The above-named plaintiff, A. B., having applied (is about to apply) to one of the Justices of the New York Supreme Court for an injunction in the above-entitled action restraining the defendant, C. D., from {here state the restraining part of the relief demanded), ' Now, THEREFORE, pursuaut to the Statute in such case made and provided, we, R. D., banker, residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, and J. F., merchant, residing at No. , Street, in the Borough of Manhattan, City and State of New York, do hereby jointly and severally undertake in the sum of dollars that the. said plaintiff, A. B., will pay to the defendant, C. D., so enjoined, such damages not exceeding the simi of dollars as he may sustain by reason of the said injunction if the court finally decides that the plaintiff is not entitled thereto.^ Dated the day of , 19 . R. D. J. F. ' If the injunction is to stay the proceedings in another action the condition of 508 BRADBURY'S LAWYERS' MANUAL Undertaking on Injunction State of New York 1 County of New York J R. D., being duly sworn, deposes and says that he is a resi- dent and freeholder within the State of New York and worth double the sum specified in the above undertaking over and above aU 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 day of , 19 (Signature and title of officer.) State of New York County of New York R.D. J. F., being duly sworn, deposes and says that he is a resident and freeholder within the State of New York and worth double the sum specified in the above undertaking over and above all the debts and Habilities which he owes or has incurred and the undertaking must be that the sureties "will pay to the party enjoined, or his representatives, all damages and costs which may be recovered by him ia the action stayed by the injunction not exceeding the sum specified in the under- taking and also all damages and costs which may be awarded to him in the action in which the injunction order is granted." Code Civ. Pro., § 611. Where in an action for the specific performance of a contract the plaintiff se- cures an injunction and then recovers judgment in the action, which judgment is made conditional upon the plaintiff performing his part of the contract, and for the failure of the plaintiff to perform the complaint is subsequently dismissed, the defendant has a right to recover damages on the undertaking given when the injunction order was made and to have such damages assessed by a reference under Code Civ. Pro., § 623, notwithstanding technically, judgment was ren- dered in favor of the plaintiff in the action. Edelman v. Lemberg, 3 Bradbury's Pl. & Pr. Rep. 476. Where the plaintiff secured a temporary injunction and the trial resulted in a judgment in favor of the plaintiff against the defendants on the merits, and one of the defendants had appealed to the Appellate Division and executed an under- taking on such appeal, it was held that while the appeal was pending a motion to cancel the undertaking given by the plaintiff as a condition of securing the tem- porary injunction, was premature and must be denied. Hans Mahler Co. v. Mahler, 3 Bradbury's Pl. & Pr. Rep. 564. TEMPORARY INJUNCTION 509 Notice of Motion to Vacate Injunction Order exclusive of property exempt by law from levy and sale under an execution. Sworn to before me, this 1 J- F. day of , 19 . J {Signature and title of officer.) State of New York ] County of New York J On this day of , 19 , before me per- sonally appeared the above named, R. D. and J. F., to me known and known to me to be the individuals described in and who executed the above undertaking and they severally ac- knowledged to me that they executed the same. (Signature and title of officer.) APPROVAL ENDORSED ON UNDERTAKING I hereby approve the within undertaking as to form, amount and the sufficiency of the surety. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. FORM NO. 304 ' Notice of Motion to Vacate Injunction Order ^ New York Supreme Court, New York County. A. B. Plaintiff, against CD., - Defendant. Please take notice, that a motion will be made at Special Term, Part I, of the New York Supreme Court, to be held 1 Three different motions may be made to set aside an injunction order under 510 BRADBURY'S LAWYERS' MANUAL Order to Show Cause Why Injunction Order Should not be Vacated in and for the County of New York, at the County Court- house therein on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order vacating and setting aside an in- junction order heretofore made in the above-entitled action by Mr. Justice Greenbaum, on the day of , 19 , on the papers on which said injunction order was granted on the ground {here state specifically the ground on which the motion is made, including any irregularity of which complaint is made), and for such other, further and different relief as may be proper, with the costs of this motion. Dated the day of , 19 . To: Yours, etc., E. F., Esq., G. H., Attorney for Plaintiff, Attorney for Defendant. 60 Wall St., New York City. FORM NO. 305 Order to Show Cause Why Injunction Order Should not be Vacated New York Supreme Court, New York County. A. B., Plaintiff, against CD., Defendant. On the annexed affidavit of C. D., sworn to the day of , 19 , and on the original injunction order issued herein by Mr. Justice Hendrick on the day of , 19 , and on the summons, complaint, affi- certain circumstances. One motion may be based on the papers ori which the injunction was granted and another may be based on new affidavits. Code Civ. Pro., §§ 627, 628. If the complaint was not served at the time either of the fore- going motions was made and denied and the complaint, which is subsequently served, does not set forth a cause of action entitling the plaintiff to an injunction, a third motion may be made to set aside the order on that ground. Code Civ. TEMPORARY INJUNCTION 511 Order to Show Cause Why Injunction Order Should not be Vacated davits of A. B. and L. M. and the undertaking given when such order was granted, all of which papers were heretofore filed in the ofiice of the clerk of the County of New York, let the plaintiff 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 Courthouse therein on the day of ,19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, why an order should not be made vacating and setting aside the said injunction order made by Mr. Justice Hendrick on the day of ,19 , on the ground (here state specifically the ground and specify any irregularities in tlie original papers on which the motion is based) and why the defendant should not have such other, further and different relief as may be equi- table, with the costs of this motion. Sufficient reason appearing therefor service of this order with the affidavit on which it was granted, on the attorney for the plaintiff, on or before the day of , 19 , shall be sufficient. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. Pro., § 628. The third motion, of course, would not be necessary in a case where the right to an injunction depended upon the nature of the action, because in such a case the complaint would be a necessary part of the moving papers for an injunction and if a complaint was not used on the motion for the injunction the order would naturally be set aside on the first or second motion. 512 BRADBURY S LAWYERS MANUAL Affidavit to Secure Order to Show Cause Why Injunction Should not be Vacated FORM NO, 306 Affidavit to Secure Order to Show Cause Why Injunction Should not be Vacated, when Motion Based on Original Papers New York Supreme Court, New York County. A. B., • Plaintiff, against CD., Defendant. State of New York County or New York ss: C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action. That an injunction order was heretofore issued by Mr. Justice Hendrick in the above-entitled action dated the day of , 19 , and said order was served on deponent on the day of , 19 . The effect of such order is that depo- nent's business has been virtually brought to a standstill and deponent will be unable to do any further business until such order is vacated or modified, and he therefore asks for an order to show cause returnable in less than five days, because of the irreparable damage which will be done to him if the matter is brought up on an ordinary notice of motion. Deponent further says that the action is not yet at issue and the next Special Term at which the action could be tried is appointed^ to be held in and for the County of New York, beginning the first Monday of , 19 . No previous application for an order to show cause herein has been made. Sworn to before me, this day of , 19 . {Signature and title of officer.) C. D. TEMPORARY INJUNCTION 513 Order Vacating, or Refusing to Vacate, Prelinainary Injunction FORM NO. 307 Order Vacating, or Refusing to Vacate, Preliminary Injunction At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against CD., Defendant. A motion having been regularly made by the defendant above named to vacate and set aside an injunction order heretofore made in this action by Mr. Justice Hendrick, dated the day of 19 , and said motion having come on regularly to be heard, Now, on reading and filing the notice of motion (order to show cause), dated the day of , 19 , in favor of said motion and on reading said order made by Mr. Justice Hendrick, dated the day of , 19 , and the summons, complaint, affidavits of and , and the undertaking on which said injunction order was granted and heretofore filed in the office of the Clerk of the County of New York, in opposition thereto, and after hearing E. F., Esq., attorney for the defendant, in favor of said motion, and G. H., Esq., attorney for the plaintiff, in opposition thereto, and due deliberation having been had, it is, on motion of E. F., attorney for the defendant, hereby Ordered that said injunction order made in this action by Mr. Justice Hendrick and dated the day of , 19 , be and the same hereby is vacated and set aside and in all respects annulled and that the defendant recover of the plain- tiff ten dollars costs of this motion. 514 Bradbury's lawyers' manual Order Vacating, or Refusing to Vacate, Preliminary Injunction Or, On motion of G. H., attorney for the plaintiff, it is hereby Ordered that said motion be and the same hereby is in all respects denied and the said injunction order made by Mr. Justice Hendrick on the day of , 19 , is hereby continued in full force and effect pending the final de- termination of this action and that the plaintiff recover of the defendant ten dollars costs of this motion, and it is further Ordered, that the plaintiff be required, within two days from the service of a copy of this order on the plaintiff's attor- ney, with notice of entry, to file a new undertaking in the sum of dollars, duly approved by the court, and to serve a copy thereof on the attorney for the defendant, and in the event of the failure of the plaintiff to file such new under- taking then said motion to vacate shall be granted and either party may apply at the foot of this order for further reUef, in the event of -the failure of the plaintiff to file such new under- taking. Enter, S. G., J. S. C. CHAPTER XXVII authentication of copies of records to be used as evidence' FORMS NO. PAGE NO. PAGE 308. Certification ot record, judg- ment to be used in another ment or order by officer State 518 within the State to be used 311. Exemplified copy of a judg- in another portion of the ment or other record of an- State 515 other State 520 309. Authentication of transcript 312. Exemplified copy of judg- from justice's docket 517 ment of foreign country. . . 523 310. Exemplified copy of jndg- 313. Authentication of judgment of foreign justice ". . . . 525 FORM NO. 308 Certification of Record, Judgment or Order by Officer Within the State to be Used in Another Portion of the State (Code Civ. Pro., §§ 957, 958) State of New York y go • County of New York I, A. B., Clerk of the County of , and also Clerk of the Supreme Court in and for said County, do hereby certify ' The New York Statute contains elaborate provisions for proving judgments, documents, laws and other public records by means of certified copies under the hand and seal of the clerk who has the custody thereof. Code Civ. Pro., §§ 921 and 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., § 692; Jacobi v. Order of Germania, 73 Hun, 602; 26 Supp. 318. The New York Statutes do not contain any provision for the certification of a judgment of another State of the Union. This is because the entire subject is governed by the Federal Constitution and by the acts of Congress made in con-- formity therewith, and therefore, all certifications of judicial records of one State to be used in another State must be made in accordance with the Federal Con- 515 516 bbadbuby's lawyers' manual Certification of Record, Judgment or Order that I have compared the annexed (describe paper) with the original on file in my office and that the annexed is a correct transcript therefrom and of the whole of the original. stitution and the Federal statutes. See Form No. 310 and notes. See also Form No. 311. In making a copy of a paper to be used in a legal proceeding care should be taken that all the dates and signatures are properly fiUed 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 contained in an original which are not repeated in the copy. Although 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 de- fects in almost all cases cause trouble and delays and may in specific instances defeat a whole proceeding. In fiUing in the signatures it is customary to place before 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 itseK shows that it is a copy, and that there is no pretense of the signatures being originals although they are fiUed in with a pen. When, how- ever, 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. An exemplified copy of any certificate or affidavit made by a public officer in the Une of his duty, is not only competent in the same 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 N. 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 sig- nificance. 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 oi'iginal. Code Civ. Pro., § 957; and this certificate must be under seal if the officer, court, body or board who has the custody of the original paper has such a seal. Code Civ. Pro., §958. In serving court orders, injunctions and decrees of all ohai-aoter a copy is in- variably used, which may be either certified 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 AUTHENTICATION OF COPIES OF RECORDS 517 Authentication of Transcript from Justice's Docket In witness whereof, I have hereunto set my hand and official seal this day of , 19 . (Official seal.) A. B., Clerk. FORM NO. 309 Authentication of Transcript from Justice's Docket (Code Civ. Pro., § 939) State of New York | County 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 . (Signature of Justice.) State of New York County of 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 said transcript, was on the day of , 19 , a Justice of the Peace in and for the County of the service is not complete without exhibiting 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 certification 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 proceeding 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 invariably served by using a certified copy, so that there can be no ques- tion as to the accuracy of the document served, nor any doubt about the official character of the document. ss: 518 Bradbury's lawyers' manual Exemplified Copy of Judgment to, be Used in Another State 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 NO. 310 Exemplified Copy of Judgment to be Used in Another State ^ Supreme Court (Name op 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 o{ A.B. V. C. D., in the words and figures following, to wit: {Here take in Copy of Judgment to be Exemplified) all of which we have by these presents caused to be exempli- fied, and the Seal of our Supreme Court to be hereunto af- fixed. 1 Under the Constitution of the 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 proceedings shall be proved, and the effect thereof." U. S. Const., Art. 4, § 1. Under the authority of the Constitution Congress has provided by the Act of AUTHENTICATION OF COPIES OF RECORDS 519 Exemplified Copy of Judgment to be Used in Another State 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. R, CUrk. I, G. H., Chief Justice of the Supreme Court of the State of , in cpnformity to the laws of the United States of America, in such case made and provided, do certify, that on May 26, 1790, and the Act of March 27, 1804, which are still 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 an- nexed, 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 U. S. Comp. Stat., p. 677. It is also provided by the Acts of March 27, 1804, and February 21, 1871, that, "All records and exemplifications of books which may be kept in any public office or State or any Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a oouFt, 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 chancellor, 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 presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under 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 exemplifications, 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 coun- try, as aforesaid, from which they are taken." 1 U. S. Comp. Stat., pp. 677, 678. See also Form No. 311 and notes. 520 Bradbury's lawyers' manual Exemplified Copy of a Judgment or Other Record of Another State the day of instant, E. F., Esquire, was, and now is. Clerk of said Court; that the attestation of said Clerk to the foregoing record is the attestation of said Clerk, and the signature "E. F.," his genuine signature, and that the seal thereto affixed 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 himdred 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 Attesta- tion, 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 and [ L. S. ] E. F., Clerk. FORM NO. 311 Exemplified Copy of a Judgment or Other Record of Another State (U. S. Const., Art. 4, § 1. 1 U. S. Comp. Stat., p. 677) State of County of I, A. B., Clerk of the Circuit Court (or other Court) of the Judicial District of , do hereby cer- AUTHENTICATION Or COPIES OF RECORDS 521 Exemplified Copy of a Judgment or Other Record of Another State tify the above and foregoing to be a true, complete and per- fect 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 CD. was plain- tiff 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 affixed the seal of the said Court at the Courthouse in , in the State [L. S.) of this day of , 19 . A. B., Ckrk of Court. State of County of ■ss: 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 officer 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 . G. H., Judge. 522 Bradbury's lawyers' manual -• Exemplified Copy of a Judgment or Other Record of Another State State of 1 County of J 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 affixed the seal of said Court this day of , 19 . A. B., Clerk of the Court. State of Office of the Secretary of State ' I, J. K., Secretary of State for the State of , do hereby certify that the Court, Judicial Dis- trict of the State of is a court of record having original jurisdiction of all causes both at law and in equity in the County of and State of ; that said court is duly con- stituted; 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 signature was affixed to the foregoing certificate; and that the signature of said G. H. to the said certificate is genuine and that A. B. 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. ^ ' This certificate may be signed by the Governor of the State in which case AUTHENTICATION OE COPIES OP RECORDS 523 Exemplified Copy of Judgment of Foreign Country FORM NO. 312 Exemplified Copy of Judgment of Foreign Country (Code Civ. Pro., §§952, 953, 957) Kingdom (or Republic) op State op City op ss: I, A. S., Clerk of Court in the city of in the State (County, Department or other political subdivision) of in the Kingdom (Republic or Principality) 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 said court wherein CD. 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 here- unto set my hand and affixed the seal (Seal of Court.) of said court at on this day of in the year nineteen hundred and A.B., Clerk. the above form would necessarily be slightly changed. See Form No. 310 pre- ceding and notes. The statutes there quoted provide one way of proving the records of judicial proceedings and another of proving other public records. The above form complies with the statutes as to aU such records. For a judgment only Form No. 310 is sufficient. 524 BRADBURY'S LAWYERS' MANUAL Exemplified Copy of Judgment of Foreign Country Kingdom (or Republic) of State of City of ss. I, G. H., the Chief Judge (or presiding Magistrate) of the court, in the State (County, Department or other po- litical subdivision) 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. In 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. Kingdom (or Republic) of State of ss: City of I, J. K., Secretary of State (or other offlcer having the custody of the great or principal seal of the government) of the .King- dom (Republic or Principality) 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 AUTHENTICATION OF COPIES OF RECOEDS 525 Authentication of Judgment of Foreign Justice the time the signature was so affixed, duly quaUfied and com- missioned to act as such Chief Judge {or presiding Magistrate) . In TESTIMONY WHEREOF, I have here- (Seal of Office.) unto set my hand and caused my (Great Seal.) seal of office and also the great seal of state to be affixed hereto this day of in the year nineteen hundred and J. K, Secretary of State of FORM NO. 313 Authentication of Judgment of Foreign Justice (Code Civ. Pro., §§948,949) State of 1 ^ \ ss. County of j 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 . {Signature of Justice.) 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 specified ss. 526 Bradbury's lawyers' manual Authentication of Judgment of Foreign Justice in said transcript, and I further certify that the said A. B., the person subscribing the certificate attached to said tran- script, was on the day of , 19 , a Justice of the Peace of the said County of , and that I am ac- quainted 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 . CHAPTER XXVIII DEPOSITIONS FORMS NO. PAGE NO. 314. Affidavit to secure an order for the examination of a person not a party before trial (de bene esse) 542 326. 315. Order for examination of per- son not a party before trial 544 316. Affidavit to secure examina- tion of party before trial . . 546 327. 317. Order for the examination of a party before trial '549 318. Affidavit on motion for ex- amination of party before 328. trial when the party to be examined is a corpora- 329. tion 550 319. Order for examination of cor- poration as party before trial 552 320. Affidavit of service of order 330. for examination before 331. trial 553 321. Affidavit on motion to pro- cure physical examination of plaintiff in an action to 332. recover damages for per- sonal injuries 555 322. Order for physical examina- tion of plaintiff in personal injury case. 556 333. 323. Affidavit on motion to ex- amine a person not a party in the State to be used on 334. motion 557 324. Order for examination of witness for the purpose of a motion 559 335. 325. Notice of motion for com- 527 PAGE mission to take testimony without the State to be used within the State. ... 561 Affidavit on motion to take commission without the State to be used within the State 562 Order that commission issue to take testimony without the State to be used within the State 563 Interrogatories to be pro- pounded 564 Notice of settlement of in- terrogatories on commis- sion to take testimony without the State to be used within the State. . . . 565 Commission oral questions. . 566 Affidavit on motion to secure examination of witness in the State to be uised with- out the State 571 Order for the issuance of sub- poena to compel witness to testify on an examination in the State, to be used without the State 573 Petition to secure order for discovery and inspection of books and papers 574 Order of inspection with al- ternative order to show cause why inspection should not be granted .... 577 Affidavit of service of order for inspection 579 528 beadbury's lawyers' manual Classification of Depositions The subject of depositions in New York is divided into six separate proceedings, as follows : Examination before trial of a party, a proposed party, or a witness, within the State, which should be subdivided for the purpose of discussion, as follows: (a) Examination de bene esse. (b) Examination to frame a pleading. (c) Examination to prepare for trial. II Physical examination of a plaintiff in an action for personal injuries. Ill Deposition of a witness to be used on a motion. IV Deposition on commission of a witness without the State, to be used within the State. V Examination of a witness within the State to be used without the State. VI Discovery and inspection of books, papers and articles. It will clarify the subject to discuss these various proceed- ings in their order. It is necessary to discuss the three dif- ferent proceedings under the first subdivision together, because they have been treated together in the Code of Civil Procedure. I A deposition de bene esse literally means "conditionally" or "provisionally." Such an examination may be had of a witness or a party and may be had either before or after an action is DEPOSITIONS 529 Essential Allegations on Motions for Depositions begun and in fact it may be taken in any stage of the proceed- ing. It is taken solely for the purpose of perpetuating testi- mony and it must appear that there is reason to fear that the testimony may be lost if it is not thus perpetuated, such as the illness of the witness or the fact that he is about to depart from the State. Originally it was a proceeding instituted by courts of equity, but has been perpetuated by the Code of Civil Procedure. The provisions of the statute, however, as to this particular remedy are not entirely clear and it may perhaps be doubted whether the Code provisions are exclusive in relation thereto. Sections 870 and 871 of the Code seem to be very broad, the former applying to parties to actions ac- tually brought or about to be brought, and the latter to a person not a party to a pending action or an action about to be brought. But § 872 prescribes what must be shown by affidavit to procure the order and naturally both §§ 870 and 871 are modified by § 872. By subdivision 5 of § 872 it is provided that it must be shown that the person to be examined is sick or infirm or is about to depart from the State so there is danger that his testimony may not be secured at the trial. Then the last sentence of subdivision 5 provides: "But this subdivision does not apply to a case where the person. to be examined is a party to the action." This clearly means, and it has been so held, that upon an application for the examina- tion of a "party to the action" it is not necessary to show that he is sick or infirm or that he is about to depart from the State, It is to be noted that the exception does not relate to a "pro- posed party" to an action. Originally, on an application for an examination de bene esse it was necessary to show that the conditions specified in § 872 of the Code, subdivision 5, pre- vailed, in order to examine any person, whether a party, a proposed party or a witness not a party. The practice has been very much confused by the rather loose statement in the Code in which an attempt has been made to codify the existing practice and apparently to greatly extend the remedy as to parties and proposed parties. The confusion in the numerous decisions on these sections has undoubtedly been 530 Bradbury's lawyers' manual Essential Allegations on Motions for Depositions caused by the somewhat confused provisions of the Code. For example, when it can be shown clearly that a person's testi- mony is liable to be lost because he is sick or infirm or because he is about to depart from the State, and it is further shown that his testimony is material and necessary to a party to an action already begun, or which is about to be begun, the court would naturally be inclined to facilitate the perpetuation of the testimony by such an examination, without regard to the fact as to whether the witness was a party, a proposed party or was merely a witness without any interest in the htigation on either side. That was the rule in courts of equity before the matter was subjected to statutory regulation. Then came the statute (the Code provisions being reenactments with modifications of previous statutes), enlarging the Temedy so that on an ap- phcation for the examination of a party, it was not necessary to show that he was sick or infirm or that he was about to depart from the State. All that it was necessary to show, speaking generally, was that an action had been brought or was about to be brought and that the testimony of the party to be ex- amined was material and necessary to the party who made the application. Now it might be material and necessary at various points in the proceeding. Thus it might be material and necessary in order to frame a complaint, either before the action was begun or after the summons was served, or to frame an answer after the action was begun, or to prepare for trial. But the broadening of the remedy by allowing an examination of a proposed party before action brought was looked upon with suspicion by the courts and such a remedy has rarely been enforced. It has practically fallen into disuse. For if papers requiring a proposed party to appear for examination could be served upon him within the jurisdiction of the court, nat- urally a summons could also be served upon him. Then, in a proper case, an examination may be had to secure information to frame a complaint, without the necessity of showing that a party to the action is sick or infirm or is about to depart from the State. If such a party is sick or infirm or is about to de- part from the State, that is an additional reason why the order DEPOSITIONS 531 Essential Allegations on Motions for Depositions for his examination should be had to perpetuate his testi- mony, but it is not a prerequisite to the examination of a party under the Code, nor would it be per se a reason for an examina- tion to frame a pleading. But the fact that the courts have shown a disinclination to allow examinations before actions brought indicates that upon the whole the old equity rule based upon experience and logic, rested upon a more solid foundation of justice than does the statutory provision. At any rate, the examination de bene esse does not appear to have been abolished by the Code, and while the court might, and in fact does, hesitate to order the examination of a party until after there has actually been an issue joined, doubtless not the same hesitancy would be shown if the application was based on the old equity principles that testimony of the party was liable to be lost because of sickness or infirmity or because of the expected departure of the person from the State. Of course, it would be necessary even in such a case to show the mate- riality and necessity of the testimony. So while a witness, not a party, cannot be examined at all unless it is shown that there is danger of losing his testimony, and while this fact is not considered in applying for the examination of a party to the action, or of the proposed action, it nevertheless may be an important, although not a necessary, factor in the proceeding for the examination of a party, no matter at what stage the Utigation may be when the apphcation is made^ and it might be a determining factor, although not required by the Code, if the apphcation was made before the action was begun. It appears, therefore, that all three proceedings under sub- division 1 of this discussion, have been combined in §§ 870 et seq. of the Code of Civil Procedure and Rule 82 of the Gen- eral Rules of Practice. Certain formal allegations must be made to secure any one of these remedies, especially under § 872 of the Code and Rule 82 of the General Rules of Prac- tice. But it is also true that there is a distinction in the facts which must be shown to secure an order for the examination to frame a pleading, or to prepare for trial, or an examination de bene esse. Thus to secure an examination de bene esse, both 532 BRADBURY'S LAWYERS' MANUAL Essential Allegations on Motions for Depositions under the Code and under the old equitable principle, the chief factor is that the witness is sick or infirm or is about to depart from the State, so that there is a doubt about this being avail- able at the trial. Another factor is that the evidence thus to be taken will be material and necessary to the party by whom the application is made, and in determining this materiality and necessity the court must know the natiire of the litigation, either of a proposed action or of an action actually begun. While, strictly speaking, under the Code, an examination de bene esse is allowed only of a witness as specified in subdivision 5 of § 872, and no specific provision is made for an examination of a party or a proposed party de bene esse, still, as already shown, an examination of a party or a proposed party is al- lowed without the necessity of showing that he is sick or infirm or is about to depart from the State and undoubtedly the ap- plication of the old equity rule to an application for an ex- amination de bene esse would be and has been apphed in its broad meaning to a party as well as to a witness not a party. In an application for an examination to frame a pleading, the formal allegations must be made as provided in the Code. Again, there must be a statement of facts showing that the examination is material and necessary to the applicant in order to secure information which will permit him to frame his pleading, and also in determining whether or not such examina- tion is material and necessary, the court must know the nature of the litigation or the proposed litigation. In an application for an examination to prepare for trial, while again the formal allegations must be the same, the con- ditions are changed to the extent that the issues have been joined and the nature of the litigation is fixed by the plead- ings. In such a case it must be shown that the examination of the party is material and necessary to the applicant in proving or disproving the allegations contained in the com- plaint or answer. So while it is necessary in all three of these proceedings to show the nature of the action, the crux of the whole proceed- ing, nevertheless, is to show that the examination of the -wit- DEPOSITIONS 533 Essential Allegations on Motions for Depositions ness or party is material and necessary to the applicant for one of the three purposes, that is (1), to perpetuate the testi- mony, (2) to frame a pleading, or (3) to prepare for trial. It scarcely need be said that a mere allegation that the examina- tion is material and necessary to the applicant is not sufficient. The applicant must put the court in possession of knowledge of such facts and circumstances, as provided in Rule 82 of the General Rules of Practice, as will permit the court to deter- mine thiB question, in view of the nature of the litigation and the testimony which it is proposed to elicit from the witness, whether he be a party or not a party. These Circumstances vary so greatly in each different action that it is not possible to lay down any rules which would ap- ply to any considerable number of them. In each case such circumstances must be shown as are applicable to that case, which will demonstrate to the court that the examination of the person is material and necessary to the applicant in prose- cuting or defending the action and in establishing the cause of action or the defense stated in the affidavit and the pleadings. As a guide to the practitioner three forms of proceedings under this subdivision have been included in the forms in the text. That is, (1) An application for an examination de bene esse. (2) An application for an examination to frame a complaint. (3) An application for an examination to prepare for trial. But the practitioner should remember that these proceed- ings are not thus separated in the Code, but are all three gov- erned by the provisions of Code Civ. Pro., §§ 870 to 886 and Rule 82 of the General Rules of Practice. 1(a) The facts which must be shown to secure the examination of a party or a witness de bene esse are as follows : (a) Either that an action has been brought or is about to be brought stating the names and places of residence of all the parties and if the a;ction has been brought the names and residences or office addresses of the attorneys for all the parties. 534 Bradbury's lawyers' manual Essential Allegations on Motions for Depositions (6) If no action has been brought the nature of the con- troversy which is expected to be the subject thereof and if the action is pending the nature of the action and the substance of the judgment demanded and the nature of the defense, and if the appUcation is made by the defendant before answer the nature of the defense which he expects to interpose. (c) The name and residence of the person to be examined and facts showing that the testimony of such person is ma- terial and necessary for the party making the appUcation or the prosecution and defense of such action, and if the action is to recover damages for personal injuries that the defendant is ignorant of the nature and extent of such personal injuries and the place where such person is sojourning or where he regularly transacts business. (d) That the person to be examined is about to depart from the State, or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial, or that any other special circumstances exist which render it proper that he should be examined as prescribed in the Code. (e) If no action is pending that the pefson expected to be the adverse party is of full age and a resident of the State or sojourning within the State or that he has an office within the State where he regularly transacts business in person, specifying the place and if it is in a city, the street and street number or other designation of the particular locality and the same cir- cumstances must be stated as to each, if two or more persons are to be examined. (J) The circumstances which render it necessary for the protection of the applicant's rights that the witness's testi- mony should be perpetuated. (g) While subdivision 7, of § 872 of the Code of Civil Pro- cedure provides for the examination of a corporation joint- stock or other incorporated association, this does not apply to an examination de bene esse because that is for the purpose of perpetuating the testimony of a natural person because of the facts already stated, and if such a person happens to be an officer or a corporation which is a party he of course may DEPOSITIONS 535 Essential Allegations on Motions for Depositions be examined if the other facts are present making his examina- tion necessary. (h) That no previous appHcation for the order has been made. 1(6) The examination of a party, or a proposed party, before the action is begun, for the purpose of framing the complaint, or after the action is begun for the purpose of framing a de- fensive pleading or the examination of a party or a person not a party after the action is at issue, for the purpose of prepar- ing the case for trial. Although an examination of a party before an action has been brought, is apparently permitted under §§ 870 to 873 of the Code of Civil Procedure, this practice has rarely been allowed except for the purpose of perpetuating testimony, in which case it would come under the previous subdivision, pro- viding for the taking of testimony de bene esse. It has been held, however, that an application could be granted for the examination of a party in order to frame a complaint, but it is held that this does not apply to a person other than a party, where the action has not yet been commenced. Long Island Bottlers' Union v. Bottlers Brewers' Protective Ass'n, 65 App. Div. 459; 72 Supp. 976; Matter of Anthony & Co., 42 App. Div. 66; 58 Supp. 907. It is obvious that it can rarely happen that there is any necessity for taking the testimony of a witness not a party before the action is begun, unless it is taken de bene esse. Both of the two cases cited above indicate that such a proceeding had been deemed advisable, although the efforts were not successful. If it is impossible to secure service of the summons on the defendant and there is any reason to believe that the witnesses are about to depart from the State, or that they are so infirm that there is danger that it may not be possible to secure their attendance at the trial, then the deposi- tion may be taken de bene esse to perpetuate the testimony, but not for the purpose of framing the complaint. The cases also in which an examination of a party for the purpose of 536 Bradbury's lawyers' manual Essential Allegations on Motions for Depositions framing a complaint have been sustained have been extremely rare. This will necessarily be so from the very nature of the case. Under the liberal rules of pleading which permit a plain- tiff to allege his cause of action on information and belief, there are few cases in which a plaintiff will be so ignorant of the facts that he will be unable to so allege them for the pur- pose of raising an issue, after which he can secure the examina- tion of a party, either for the purpose of amending his plead- ing after issue joined or for the purpose of securing testimony for the trial. As the formal allegations necessary to secure an examination to frame a complaint are essentially the same as those necessary to secure an examination before trial, ex- cept that where the application is made to frame the complaint the plaintiff must show that he is so ignorant of the facts that he cannot frame his pleading, that the essential allegations for both proceedings are stated below, as follows : (a) That an action is pending in the court of record giving the name of the court and where pending and the relation of the party to the action, or that an action is about to be begun, with the same particulars. (6) The names and residences of all the parties to the action and whether or not they have appeared, and if either of them has appeared by attorney, the names, residences or office ad- dresses of the attorneys or if no action is pending the names and residences of the expected parties thereto. (c) If the action is pending the nature of the action and the substance of the judgment demanded and if the application is made by the defendant before answer or by either party after answer, the nature of the defense. (d) . If no action is pending the nature of the controversy which is expected to be the subject thereof. (e) The name and residence of the person to be examined and facts showing that the testimony of such person is ma- terial and necessary to the party making the application for the purpose of framing a pleading in the prosecution or defense of the action, and if the action is to recover damages for per- sonal injuries that the defendant is ignorant of the nature and DEPOSITIONS 537 Essential Allegations on Motions for Depositions extent of such personal injuries; or at the option of the ap- pUcant the place where the person to be examined is sojourn- ing or where he regularly transacts business. (/) If no action is pending that the person expected to be the adverse party is of full age and a resident of the State or sojourning within the State or that he has an office within the State where he regularly transacts business in person, specify- ing the place, and if it is in a city, the street and street number or other designation of the particular locality or if two or more persons are expected to be adverse parties that each is of full age and a resident or sojourning or has such an office. (h) The circumstances which render it necessary for the protection of the applicant's rights, that the witness's testi- mony should be taken. (g) If the party sought to be examined is a corporation, joint-stock or other unincorporated association, the affidavit must state the names of the officers, directors or managing agents thereof or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers and on such examination the books or papers or any part or parts thereof may be offered and received in evidence in addition to the use thereof by the witness to refresh his memory. (h) That no previous application for the order has been made. 1(c) The allegations under this subdivision are exactly the same as they are under 1(6) with the exception that it must be shown that the testimony of the person to be examined is material and necessary to the party making the appUcation for the prosecution or defense of the action and to allow him to pre- pare for trial. II A physical examination of a plaintiff in an action for per- sonal injuries caused by negligence. 538 Bradbury's lawyers' manital Essential Allegations on Motions for Depositions Under this subdivision the same formal allegations must be shown as are set forth under the subdivision I above, except that of course, in such a case, as the examination is made on behalf of the defendant to examine the plaintiff, it naturally follows that the action has already been begun and therefore all the recitals as to an action which is about to be begun are immaterial and have no application. A physical examination is had under § 873 and an oral examination of a defendant in a personal injury case is had under subdivision 4, of § 872 of the Code. There is a dif- ference in the procedure under the two sections. Under § 873 the examination is merely made by the physician and the referee supervises it, if any questions arise as to the extent of the examination or the manner in which it is to be conducted, but in such a case no report is made to the court of the ex- amination, whereas if the examination is made under subd. 4, of § 872, the party is submitted to an oral examination, which is made a matter of record by the referee and then the referee makes his report to the court. When the examination is held under § 873 no report is made. Ill An examination of a person not a party within the State to be used upon a motion. The proceeding to examine the witness not a party, ^ for the purpose of making or opposing a motion, is governed by Code Civ. Pro., § 885. The papers inust show as follows: (a) A statement as to the action, its present condition, and the names of the parties thereof and their attorneys. (b) A statement of the nature of the action and of the de- fense. (c) A statement that the applicant intends to make a mo- tion or that the applicant intends to oppose a motion made by the other side, with particulars in relation to the motion. ' If the defendant has appeared in the action a notice of motion of one day must be given. DEPOSITIONS 539 Essential Allegations on Motions for Depositions (d) Facts showing that the affidavit or deposition of the witness is material and necessary to the apphcant in making or opposing the motion and that such person has refused to make an affidavit of the facts which the apphcant verily be- lieves are within his knbwledge. IV An examination of a party or a witness without the State to be used within the State. Subdivision IV is governed by §§ 887 to 913, inclusive, of the Code of Civil Procedure. A commission to examine a witness out of the State may be granted before the joinder of issue where the action is brought in a court of record and there is reason to apprehend that before issue is joined and an ap- pUcation for a commission can thereafter be made, the witness will die or become unable to give his testimony or remove so that his testimony cannot be taken, which is essentially an ex- amination de bene esse; or where an issue has been joined and is pending in a court of record and the testimony is ma- terial and necessary to the applicant in the prosecution or defense thereof, or where a party is in default for want of a pleading and the testimony is required upon the assessment of damages by writ of inquiry or upon a reference or otherwise to enable the court to render the proper final judgment, or where an appeal from a final judgment or a motion for a new trial is pending, and the testimony will be material and neces- sary to the applicant in the prosecution or defense to the ac- tion if a new trial is granted, or where final judgment has been rendered against the adverse party in an action brought in a court of record and the testimony is required in order to carry the judgment into effect, or in a special proceeding. The special allegations which must appear in order to secure a commission in a pending action are as follows: (a) That an action is pending in a court of record as speci- fied in Code Civ. Pro., § 888, with the names of the parties to the action. (6) The nature of the cause of action and of the defense if 540 Bradbury's lawyers' manual Essential Allegations on Motions lor Depositions an answer has been put in and a further statement of the facts which make it material and necessary for the appUcant to take the testimony of the proposed witness. (c) Statements showing that it would be impossible to secure the testimony of the witness at the trial. V An examination of a person within the State to be used with- out the State. A proceeding under this subdivision is governed by Code Civ. Pro., §§ 914 to 919, inclusive. The necessary allegations to secure a subpoena to require the presence of a witness are a- follows : (a) That an action, suit or special proceeding, civil or criminal, is pending in a court without the State, either in the United States or in a foreign country, with a particular state- ment as to the nature of the action, and of the defense thereto. (b) The name and place of residence of the person to be examined. (c) Facts showing that the testimony of said person is ma- terial and necessary to the prosecution or defense of the action. (d) That a commission has been issued from the foreign com-t, stating the particulars of the issuance of such conunis- sion and the person who is appointed therein to take the tes- timony of the witness. (e) There should be either a copy of the commission, order, notice, consent or other authority under which the deposition is taken or the substance thereof should be stated in the af- fidavit. (/) If books or papers are to be produced the petition should specify the particular books or papers, the production of which is sought and that such books or papers are in the possession of or under the control of the witness and are material upon the issues presented in the action or special proceeding, in which the deposition of the witness is sought to be taken. Rule 17, Gen. Rules of Practice. (g) That no previous application for the order has been made. DEPOSITIONS 541 Essential Allegations on Motions for Depositions VI An order for discovery of books and papers is covered by Code Civ. Pro., §§ 803 to 809, inclusive, and Rules 14, 15 and 16, of the General Rules of Practice. The remedy has been broadened so as to permit an inspection of not only books, papers and documents but also photographs and to make discovery of any article or property relating to the merits of the action or to the defenses therein. The allegations which must be made to allow the party to the inspection are as follows : (a) A statement as to the condition of the action, giving the names of the parties thereto, with the nature of the action and the nature of the defense, if an answer has been put in. ' (b) A description of the book, paper, document or article and a statement that it is not in the possession or under the control of the applicant, but is in possession or under the control of the opposite party or his agent or attorney. (c) Facts showing that it will be material and necessary for the applicant to have the discovery and inspection for the purpose either of framing a pleading or preparing for trial. (d) That the information which the applicant requires will be supplied by such discovery and inspection. (e) Allegations showing that the inspection has been re- quested and refused. (/) Showing whether or not the action is at issue and the time appointed for holding the next trial or special term where the action is triable. (g) That no previous application for the order has been made. 542 BRADBURY'S LAWYERS' MANUAL Affidavit to Secure an Order for the Examination of a Person FORM NO. 314 Affidavit to Secure an Order for the Examination of a Person not a Party Before Trial (de bene esse) ' (Code Civ. Pro., §§ 870 to 886; Rule 82, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York A. B., being duly sworn, deposes and says: 1. That he is the plaintiff in the above-entitled action and that he resides at No. , Street, Borough of Man- hattan, City and State of New York. Deponent further says that this action has been begun and is at issue. The defendant herein, C. D., resides at No. , Street, in the Borough of Manhattan, City of New York. The attorney for the plaintiff herein is E. F., whose office address is No. Broadway, Borough of Manhattan, City of New York. The defendant has appeared herein and answered by C. H., Esq., his attorney, whose office address is No. ' In all oases where the testimony of a party has been taken by deposition under any of the proceedings discussed in this chapter such testimony may be read at the trial by his adversary, provided there is no legal objection to it on the ground that it is incompetent, irrelevant or immaterial, without showing that it is im- possible to secure the presence of the party at the trial. On the other hand, it must always be shown that it is impossible to secure the presence of a witness not a party at the trial before his testimony can be read, provided of course there i.H an objection on this ground. DEPOSITIONS 543 Affidavit to Secure an Order for the Examination of a Person Nassau Street, Borough of Manhattan, City of New York. (// the action has not been begun so state and give the names and addresses of all the parties and the nature of the proposed action.) 2. The action is brought to (here state the nature of the action) and the plaintiff demands judgment (state the judgment which is demanded). The defense is that (state the nature of the de- fense) . 3. The testimony of L. M., who is not a party to the action and who resides at No. , Street, Borough of , City and State of New York, is material and neces- sary to the plaintiff in the prosecution of the action for the following reasons: (here state the facts which show that the testimony of the witness is material and necessary) . 4. That said L. M. is about to depart from the State of New York, on or about the day of , 19 , and he will not return to New York State in time to be present at the trial of this action, as said L. M. intends to travel in Europe and will be gone a year at least and the date of his return is uncertain, as deponent has been informed by said L. M. (or said L. M. is so sick and infirm as to afford reason- able ground to believe that he will not be able to attend the trial and said L. M. is now confined in the Hospital and is under the care of R. S., a physician and surgeon, who re- sides at No. , Street, in the Borough of Manhattan, City, County and State of New York and deponent has been advised by said R. S. that it is doubtful when said L. M. will be able to leave said hospital and in fact there is a doubt whether he will ever be able to leave the hospital. Deponent has requested said R. S. to make an affidavit to this effect, but said R. S. has refused to do so) . (// there are any other special circumstances existing which render it proper that the witness should be examined and that for the reason stated there shall be danger that his testimony cannot be had at the trial, state such facts.) No previous application for such an order has been made. Wherefore deponent prays that an order may be made requiring the said L. M. to appear for examination in relation 544 Bradbury's lawyers' manual Order for Examination of Person not a Party Before Trial to the issues in the above-entitled action in accordance with the statutes and rules in such case made and provided. Sworn to before me, this A. B. day of , 19 . (Signature and title of oficer.) FORM NO. 315 Order for Examination of Person not a Party Before Trial ^ New York Supreme Court, New York County. - A. B., Plaintiff, against C. D., Defendant. It appearing by the affidavit of A. B., sworn to the day of , 19 , that the above-entitled action is at issue and that L. M. is a material and necessary witness to the plaintiff in the prosecution thereof and that said L. M. is about to depart from the State (or that L. M. is so sick and in- firm as to afford reasonable ground to believe that he will not be able to attend the trial), and there is danger that the testi- mony of said L. M. cannot be had at the trial. Now, on said affidavit above recited and on the pleadings herein, and on motion of E. F., attorney for the plaintiff, it is hereby Ordered that L. M. be and hereby is directed to appear for examination in reference to the issues in the above-entitled action before the Justice sitting at Special Term, Part II, of the New York Supreme Court, held in and for the Coimty of New York, at the County Courthouse therein, on the day of , 19 , at 10:30 o'clock in the forenoon, and on such other days as to which said examination may be duly adjourned. ' See notes to Form No. 317. DEPOSITIONS 545 Order for Examination of Person not a Party Before Trial (Or that L. M. is hereby directed to appear before G. H., who is hereby appointed referee to take said testimony at the office of said G. H., No. Broadway, in the Borough of Manhattan, City, County and State of New York on the day of , 19 , at two o'clock in the after- noon and on said other days as to which the examination may be adjourned, concerning the issues in this action. (The judge who grants the order may restrict the examination to particular subjects or to a particular subject.) {See recital in Form No. 317 where referee is appointed to take examination.) A copy of tljis order must be served on the said L. M. on or before the day of , 19 , {not more than twenty nor less than five days before the time fixed for the examina- tion unless special circumstances making a different time of service necessary, which must be shown in the affidavit and that fact recited in the ordef.) Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. 54G BRADBURY'S LAWYERS' MANUAL Affidavit to Secure Examination of Party Before Trial FORM NO. 316 Affidavit to Secure Examination of Party Before Trial ^ (Code Civ. Pro., §§ 870 to 886; Rule 82, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York ] County of New York J " ' C. D., being duly sworn, deposes and says: 1. That he is the defendant in the above-entitled action and that he resides at No. , Street, in the Borough of ' Although there is a growing tendency to favor an examination of a party be- fore trial, facts must be presented from which the court can see that the ap- plication is made in good faith and that the facts sought will be admissible. Rogers v. Adler, L37 App. Div. 197; 121 Supp. 941. An order for the examination of the plaintiff before trial will not be granted on mere allegations that his testimony is necessary and material, where it is ap- parent that the only purpose is to discover whether or not the plaintiff has a cause of action. Rogers v. Adler, 137 App. Div. 197; 121 Supp. 941. Where the plaintiff has sufficient facts to plead a cause of action in replevin, but his cause of action in replevin may be made ineffectual without an order of arrest, an order for the examination of the defendant to frame a complaint may be sustained to secure facts to comply with Code Civ. Pro., § 549, subd. 2. Valen- liiw v. Wu'ppermann, 2 Bradbury's Pl. & Pr. Rep. 573. In an action to reach the surplus income from a trust fund, the court is au- thorized to make an order requiring the trust company to submit to an examina- tion before trial on behalf of the plaintiff' where the trust company is one of the defendants in the action. Demuth v. Kemp, 2 Bradbury's Pl. & Pb. Rep. 574. Upon the examination of a defendant before trial only questions relating to the relevancy of the evidence to the issues and with respect to whether the witness is privileged from answering should be considered. The competency and admissi- bility of the evidence are matters to be dotennined at the trial and therefore upon the examination before trial of an officer of a defendant corporation in an action DEPOSITIONS 547 Affidavit to Secure Examination of Party Before Trial Manhattan, City, County and State of New York. That the plaintiff herein, A. B., resides at No. , Street, in the Borough of , City and State of New York, and that the attorney for the plaintiff is E. F., and that his office address is No. Broadway, in the Borough of Manhattan, City and State of New York, and that this defendant has ap- peared in this action by G. H., Esq., his attorney, whose office address is No. Nassau Street, Borough of Manhattan, City and State of New York. 2. The action herein is at issue and the nature thereof is as for libel questions relating to the truth of the alleged libelous a-rtide are relevant. Guenther v. Ridgway Co., 159 App. Div. 74; 143 Supp. 961. On an examination before trial a witness cannot be required to answer questions the answers to which will tend to accuse him of the crime. Chap-pell v. Chappell, 116 App. Div. 57.3; 101 Supp. 846. Considerable latitude should be given in examining an adverse party before trial, for it is in the nature of a cross-examination to elicit the truth and shorten the time. Guenther v. Ridgway Co., 159 App. Div. 74; 143 Supp. 961. Where the plaintiff has secured an ex parte order for the examination of the defendant, which order is less broad than that applied for, and subsequently moves, upon an order to show cause at Special Term, why an examination of the defendant in the form such as was originally asked for ex parte should not be granted, the motion must be denied it considered as an original application, and must also be denied if it does not appear from the moving papers that the original ex parte order was partly refused, as the court cannot take judicial notice of the former proceedings in such a case, and such refusal of the original application should appear either in the ex parte order originally granted or in the order to show cause subsequently granted, and it is not sufficient that it appears in the affidavit submitted by the moving party. Richmond Assets Collecting Co. v. Baehe, 3 Bradbury's Pl. & Pr. Rep. 590. Where a plaintiff was required to give a bill of particulars in an action for dam- ages for conspiracy, but the order requiring the bill of particulars relieved the plaintiff from giving particulars of such matters as it did not have knowledge, the plaintiff is not entitled to an order for the examination of the defendant to secure information to frame the bill of particulars, as the former order protects the plaintiff from any default by reason of the failure to furnish the information. Evening Herald Co. v. Kilmer, 172 App. Div. 687; 160 Supp. 1129. Where on a motion to compel the attorneys for the defendant to restore to the files of the court a deposition of the defendant taken before trial, such attorneys deny they have such deposition or that they removed it from the files, the moving party may have an order continuing the examination for the purpose of identifica- tion and signature of an alleged copy of such deposition, or at the trial may rely on common-law proof as to the testimony which the defendant gave on such examination. Griffin v. Beach, 2 BRADBtrRY's Pl. & Pr. Rep. 255. 548 Bradbury's lawyers' manual Affidavit to Secure Examination of Party Before Trial follows: {state the nature of the action), and the plaintiff demands judgment as follows : (state the nature of the demand for judgment), the defense to the action is as follows: (state the nature of the defense) . 3. Deponent desires to examine before trial A. B., the plain- tiff above named, whose residence is as hereinbefore stated, and the testimony of said A. B. is material and necessary for the defense of this action by reason of the following facts: (here state the reasons why it is necessary for the examination to be had in accordance with Rule 82 of the General Rules of Practice). J 4. (7/ the party sought to be examined is a corporation, joint- stock or other unincorporated association the affidavit mu^t state the names of the officers, directors or managing agents thereof, or any of them whose testimony is necessary and material or the books and papers as to the contents of which an examination or an inspection is desired, and the order to be made in respect thereto must direct the examination of such persons and the production of said books and papers and on such examination the books or papers, or part or parts thereof, may be offered and received in evidence in addition to the use thereof by the witness to refresh his memory. See Code Civ. Pro., § 87£, subd. 7.) 5. No previous application for such an order has been made. Deponent therefore prays that an order may be issued herein requiring the said A. B. to appear for examination, pursuant to the statutes and rules in such case made and provided. Sworn to before me, this 1 C. D. day of , 19 . J (Signature and title of officer.) DEPOSITIONS 549 Order for the Examination of a Party Before Trial FORM NO. 317 Order for the Examination of a Party Before Trial ^ (Code Civ. Pro., § 870 to 886; Rule 82, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. C. D., the above-named defendant, having duly applied for an order for the examination of A. B., the above-named plain- tiff, before trial, and it appearing to my satisfaction that the examination of said A. B., is material and necessary to the defendant in the defense of said action, and on the affidavit of C. D., sworn to the day of , 19 , and on motion of E. F., attorney for the defendant, it is Ordered, that the above-named plaintiff, A. B., appear for examination before trial before the Justice of the New York Supreme Court, sitting at Special Term, Part 2 thereof, in the Coxmty Courthouse in New York County, on the day of 19 , at o'clock in the forenoon for examination, in regard to the issues raised under the plead- ' The order is made ex -parte and should be served on the person to be ex- amined personally and at the same time there should be paid to the person upon whom the order is served, witness fees the same as are paid to a witness on the trial of an action; that is, fifty cents for one day's attendance and eight cents a mile for each mile which it is necessary for the witness to travel one way going from his place of residence to the place where he is required to appear, if the witness lives more than three miles from the place where he is required to appear. But a resident of the State shall not be required to attend in any county other than that in which he resides or where he has an office for the regular transaction of business in person. If he is not a resident of the State he shall not be required to attend in any other county than that wherein he was served with a subpoena unless, for special reasons stated in the affidavit, the order otherwise directs. Code Civ. Pro., § 886. 550 Bradbury's lawyers' manual Affidavit on Motion for Examination of Party Before Trial ings in this action. {The judge who grants the order may limit the examination to particular subjects.) (If a referee is appointed to take the examination insert the following in place of the last paragraph:) Ordered that A. B., the plaintiff above named, appear be- fore L. M., who is hereby appointed Referee to take the deposi- tion herein at the office of said referee, No. , Street, in the Borough of Manhattan, City, County and State of New York, at eleven o'clock in the forenoon on the day of ,19 , and submit to an examination in relation to the issues raised by the pleadings in this action. A copy of this order must be served on the said A. B. on or before the day of , 19 , (not more than twenty nor less than five days before the time fixed for the examina- tion, unless special circumstances making a different time of service necessary are shown in the afidavit and that fact is recited in the order). Dated the day of , 19 . Peter A. Hbndrick, Justice of the Supreme Court of the State of New York. FORM NO. 318 Affidavit on Motion for Examination of Party Before Trial When the Party to be Examined is a Corporation New York Supreme Court, New York County. A. B. Company, Plaintiff, against C. D., Defendant. ss: State of New York County of New York C. D., being duly sworn, deposes and says that he is the de- fendant in the above-entitled action and that he resides at No. DEPOSITIONS 551 Affidavit on Motion for Examination of Party Before Trial , Street, Borough of Manhattan, City and State of New York. This action is at issue and has been placed on the general calendar of the New York Trial Term, General Calendar. The plaintiff is a domestic corporation and its principal office for the transaction of business is at No. , Street, Borough of Manhattan, City, County and State of New York, and the attorney for the plaintiff is E. F., whose office is at No. , Street, Borough of Manhattan, City and State of New York. The defendant's attorney is G. H., whose office is at No. , Street, Borough of Manhattan, City and State of New York. The action is brought to recover {here state concisely the nature of the action) as appears more fuUy by the complaint herein to which reference is herein made, and the defense is as follows : {here state the nature of the defense) as appears more fully by the answer herein which is herein referred to and made a part of this application. That the following are the officers of said corporation whose examination is desired herein, to wit: R. S., the President, and Q. S., the Secretary, and that said R. S. resides at No. , Street, Borough of Manhattan, City and State of New York, and Q. S. resides at No. , Street, Borough of Manhattan, City, County and State of New York. That the testimony of said R. S. and Q. S., as such officers, is material and necessary to the defendant in the defense of said action and the contents of the following books and papers are also material and necessary to the defendant in the defense of said action, to wit: {here state the ' particular facts showing the materiality and necessity of the testimony of the officers' and also specifying the books and papers which it is desired to have pro- duced on the examination for the purpose of offering them in evi- dence or for use by the witnesses to refresh their memory, and stale fully the facts which show to the court the materiality and necessity of the testimony of the officers and of the books, and specify espe- cially the particular books desired). 5.j2 Bradbury's lawyers' manual Order for Examination of Corporation as Party Before Trial That no previous application for such an order has been made. Wherefore, the deponent asks that an order be made for the examination of said R. S. and Q. S. and the production of said books and papers hereinbefore specified on said examina- tion so that parts thereof may be offered in evidence and that other parts may be used by the witnesses to refresh their memory, in accordance with subdivision 7, of § 872, of the Code of Civil Procedure. Sworn to before me, this 1 day of , 19 . J C. D. (Signature and title of officer.) FORM NO. 319 Order for Examination of Corporation as Party Before Trial ^ New York Supreme Court, New York County. A. B. Company, Plaintiff, against C. D., Defendant. On the annexed affidavit of C. D., sworn to the day of , 19 , and on the pleadings herein, and on motion of E. F., attorney for the plaintiff, it is hereby Ordered that P. S. and Q. S., respectively the President and Secretary of the A. B. Company are hereby required to appear before the justice sitting at Special Term, Part II, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein on the day of , 19 , at 10:30 o'clock in the forenoon, and there submit to an examination in relation to the issues in the above-entitled action as made by the plead- 1 See notes to Form No. 317. DEPOSITIONS 553 Affidavit of Service of Order for Examination Before Trial ings, and said R. S. and Q. S. are further required to produce on said examination the following books and papers of said cor- poration {here specify the books and papers particularly), and any part or parts of said books and papers may be offered in evidence and the same may be used by the witnesses to refresh their memory on said examination. A copy of this order must be served on the said R. S. and Q. S., on or before the day of , 19 , (not more than twenty nor less than five days before the time fixed for the examination unless special circumstances making a different time of service necessary are shown in the afidavit and that fact is recited in the order) . Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York FORM NO. 320 Affidavit of Service of Order for Examination Before Trial ^ New York Supreme Court, New York Covmty. A. B., Plaintiff, against C. D., Defendant. State of New York g. County of New York L. M., being duly sworn, deposes and says that he is over the age of twenty-one years {if between eighteen and twenty-one, state 1 A copy of the order and the affidavit upon which it was granted must be served upon the attorney for each party to the action in like manner as the paper in the action, or if a party has not appeared in the action they must be served upon him as directed by the order. If no action is pending they must be personally served upon each of the parties named therein as expected adverse party. Code 564 Bradbury's lawyers' manual Affidavit for Service of Order for Examination Before Trial age) ; that on the day of , 19 , at No. Street, Borough of Manhattan, City and State of New York, he served the annexed order on John Jones, in the fol- lowing manner : He exhibited to said John Jones the original order, with the signature of Hon. Justice Peter A. Hendrick subscribed thereto, and thereupon he delivered to said John Jones true copies of said order and the affidavits of A. B. and CD. annexed thereto and left the same with him. Deponent further says that at the same time he paid to said John Jones the sum of dollars, being fifty cents for one day's attendance as a witness, and the sum of dollars as mileage fees, at the rate of eight cents a mile for miles in traveling from the place of residence of the said John Jones to the place where the examination is to be held. Deponent further says that he knew the person so served to be the said John Jones, the person required by said order to appear for examination. Sworn to before me, this 1 day of , 19 . j L. M. {Signature and title of officer.) Civ. Pro., § 875. This of course is in addition to the personal service on the per- son to be examined and the payment of witness fees. See note to Form No. 317. Service of an order or subpoena on the party to be examined must be made on the party personally and not on the attorney. Berg v. Scott, 2 Bbadbtjrt's Pl. & Pr. Rep. 119. DEPOSITIONS 555 Affidavit on Motion to Procure Physical Examination of Plaintiff FORM NO. 321 Affidavit on Motion to Procure Physical Examination of Plaintiff in an Action to Recover Damages for Personal Injuries ' (Code Civ. Pro., § 873) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of Neav York C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action. This action 4s at issue and has been placed on the general calendar of this court and is No. on Trial Term Calendar No. 1, in the Supreme Court, New York County. The plaintiff resides at No. Street, in the Borough of Manhattan, New York City, and the plaintiff's attorney is E. F., whose office is No. , Nassau Street, Borough of Manhattan, New York City. The defendant resides at No. , Street, Borough of Manhattan, New York City, and the office address of G. H., ^ As physical infirmity is not one of the disqualifications inentioned in Code Civ. Pro. § 2564, which specifies the various causes which render a person in- competent to receive letters testamentary, an application for an order directing a physical examination of one named as executor in a will must be denied. Matter of Leland, 95 Misc. 440; 160 Supp. 1136. In the last mentioned case Surrogate Fowler discussed, but did not decide, the question whether or not § 873 of the Code of Civil Procedure was made applicable to the Surrogate's Court by § 2770 of the Code, but he did decide that the right to a physical examination of a party before trial is limited by that section to an action brought to recover damages for personal injuries. 556 Bradbury's lawyers' manual Order for Physical Examination of Plaintiff in Personal Injury Case defendant's attorney is No. , Street, Borough of Manhattan, New York City. This action is brought to recover damages for personal in- juries by reason of the alleged negligence of the defendant. Dejionent is ignorant of the nature and extent of the injiu-ies complained of and has no means of ascertaining the extent of such injuries except the allegations of the complaint, which is submitted on this motion. By said allegations it appears that the plaintiff has suffered serious permanent injuries and the only manner in which the defendant can secure evidence thereof will be by a physical examination. No previous application for an order for examination of plaintiff has been made. Deponent therefore prays that an order may be made re- quiring the plaintiff tcfr;appear before a referee for examination by Jonas Jones, M. D., a regularly licensed physician and s&rgeei^;in the City and State '?ff New York. Sworn to before me, 'this ■■"-* 1 '»»-'»' C. D. day of* ^. ,^9^ (Signature and title of officer.) FORM NO. 322 Order for Physical Examination of Plaintiff in Personal Injury Case! New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavit of CD. and on the pleadings in this action, and on motion of E. F., attorney for the defendant, it is hereby 1 See notes to Forms Nos. 317 and 320. DEPOSITIONS 557 Affidavit on Motion to Examine a Person Not a Party in the State Ordered that A. B., the plaintiff above named, be and hereby is directed to appear before L. M., who is hereby ap- pointed referee for that purpose at the office of said Referee, No. , Street, in the Borough of Manhattan, City and State of New York, on the day of , 19 , at three o'clock in the afternoon and submit to an ex- amination by Jonas Jones, M. D., a duly licensed physician and surgeon in the State of New York, in relation to the in- juries alleged to have been suffered by the plaintiff as set forth in the complaint in the above-entitled action. A copy of this order must be served on the said A. B. on or before the day of , 19 , {not more than twenty nor less than five days before the time fixed for the examina- tion unless special circumstances making a different time of service necessary are shown in the affidavit and that fact is recited in the order). Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. FORM NO. 323 Affidavit on Motion to Examine a Person Not a Party, in the State, to be Used on Motion New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. i State op New York g. County of New York A. B., being duly sworn, deposes and says that he is the plain- tiff in the above-entitled action; that this action is at issue and 558 Bradbury's lawyers' manual Affidavit on Motion to Examine a Person not a Party in the State the defendant has appeared and answered herein by G. H., Esq., his attorney, whose office address is No. , Street, Borough of Manhattan, City and State of New York. This action is brought to secure an injunction against the defendant to restrain him from violating an agreement en- tered into on the day of , 19 , under which the plaintiff purchased the business of the defendant theretofore conducted at No. , Street, Borough of Manhattan, City and State of New York, and the defendant agreed therein not to enter into or to be in any wise connected with any other similar business for the term of five years, within twenty city blocks of the said Street, Borough of Manhattan, City and State of New York, and a copy of the complaint and answer are hereunto annexed and made a part of this appHcation. Deponent further says that he has frequently, during the last thirty days, seen the said defendant in the place of business of John Smith, of No. , Street, Borough of Man- hattan, City and State of New York, which is within three city blocks of the business purchased by the plaintiff from the de- fendant, and that said John Smith at said place conducts a business of a similar nature to that which the plaintiff sold to the defendant as hereinbefore recited, which business is that of {here state the nature of the business). Deponent has fre- quently seen the said defendant in the said place of business of said John Smith and said CD. appears to be connected with the business by reason of the fact that he goes behind the counter and goes into the office without apparent hindrance, but the said defendant denies to deponent that he is connected with said business. Deponent believes that such denials are not made in good faith. Deponent has asked the said John Smith what, if any, connection the said defendant had with the said John Smith and said John Smith has, on several occasions during the last thu-ty days, refused to state to deponent what, if any, connec- tion the said CD. had with the said business. Deponent is about to make a motion for an injunction against DEPOSITIONS 559 Order for Examination of Witness for the Purpose of a Motion the said C. D., pending final determination of this action, to prevent him from continuing his activities in connection with the business of said John Smith and deponent desires to ex- amine the said John Smith as a witness for the purpose of se- curing evidence on which to base such application for an in- junction and the evidence of John Smith is material and neces- sary to deponent on such examination. Said John Smith lives at No. , Street, in the Borough of Manhattan, City and State of New York. No previous application for such an order has been made. Wherefore deponent prays that an order may be made requiring said John Smith to appear for examination before the court or a referee to be appointed herein, at such time as may be determined, and for such other, further and different relief as may be proper. Sworn to before me, this 1 day of ,19-1 A. B. {Signature and title of officer.) FORM NO. 324 Order for Examination of Witness for the Purpose of a Motion ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. It appearing by the annexed affidavit of A. B., sworn to the day of , 19 , and on the pleadings in 1 If the defendant has appeared in the action a notice of one day must be given to the attorney for the opposite party of the appUcation for the order. In that event the matter will be brought up on an ordinary notice of motion and the order which will be made would be a court order and not a judge's order. In New York County the matter, if brought up on a notice of motion, would be 560 Bradbury's lawyers' manual Order for Examination of Witness for the Purpose of a Motion the above-entitled action, that the plaintiff is about to make a motion against the defendant for an injunction to prevent the defendant from continuing to violate an agreement which is the subject of the action herein, and it appearing that the tak- ing of the testimony of John Smith who resides at No. , Street, Borough of Manhattan, City and State of New York, is material and necessary to the plaintiff on mak- ing said motion, and that no previous application for such a motion has been made, and that the summons and complaint have been served on the plaintiff, but that the defendant has not appeared, answered or demurred herein. Now, on motion of G. H., attorney for the plaintiff, it is hereby Ordered that John Smith be and hereby is directed to ap- pear before me or the Justice presiding at Special Term, Part II, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein on the day of , 19 , at 10:30 o'clock in the forenoon, for the purpose of being examined in relation to the matters set forth in the foregoing affidavit of A. B. and par- ticularly in reference to the connection of the said C. D. with the business conducted by the said John Smith at No. , Street, in the Borough of Manhattan, City and State of New York. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. heard at Special Term to Part I, and not at Special Term, Part II. That is, the motion for the order would be heard at Special Term, Part I, but the order, when made, for the examination of a witness, would be returnable either before a referee or before the justice at Special Term, Part II. DEPOSITIONS 561 Notice of Motion for Commission to take Testimony Without the State FORM NO. 325 Notice of Motion for Commission to take Testimony Without the State to be Used Within the State New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of A. B., sworn to the day of , 19 , and on the pleadings in this action, a motion will be made 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 Courthouse therein, on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, for an order that a Commission issue to M. N., of No. , Street, in the City of Philadelphia, State of Penn- sylvania, or to some other competent person to take the testi- mony of L. M., who resides at No. , Street in the City of Philadelphia in the State of Pennsylvania, on written interrogatories to be attached to said commission in accordance with law. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., A ttorney for Defendant. A ttorney for Plaintiff. 562 Bradbury's lawyers' manual Affidavit on Motion to take Commission Without the State FORM NO. 326 Affidavit on Motion to take Commission Without the State to be Used Within the State (Code Civ. Pro., §§ 887 to 913) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York (. CO • County op New York A. B., being duly sworn, deposes and says that he is the plain- tiff in the above-entitled action. That this action has been commenced and the defendant has appeared and answered therein and the case is No. , on Calendar No. 2 of the General Calendar of the Supreme Court, New York County. Deponent further says that the action is brought to recover (here state concisely the nature of the cause of action), and the defense is (here state the nature of the defense) . Deponent further says that L. M., who resides at No. , Street, in the city of Philadelphia, State of Pennsyl- vania, is a material and necessary witness to the plaintiff on the prosecution of the action. Said L. M. was present when the contract between the plaintiff and the defendant was made, on or about the day of , 19 , and is familiar with the terms thereof {or otherwise state in what manner the pro- posed witness is material and necessary to the plaintiff in the pros- ecution of the action.) Deponent further says that said L. M. is not within the State of New York but is a resident of the State of Pennsylvania, to the personal knowledge of deponent, and that said L. M. DEPOSITIONS 563 Order that Commission Issue to Take Testimony Without the State cannot be produced as a witness upon the trial of this action in New York. Deponent is personally acquainted with said L. M. and has been for upwards of years last past and said L. M. has frequently told deponent that he resided at the above mentioned address and deponent has seen said L. M. in his said home. Deponent further says that N. M., a counselor at law in the City of Philadelphia, in the State of Pennsylvania, whose office address is No. , Street, City of Phila- delphia, State of Pennsylvania, is a competent person to be appointed Commissioner to take the testimony of said L. M. Deponent therefore prays that an order may be made for a commission to issue to said N. M. to take the testimony of said L. M., on written interrogatories to be annexed to said commission and that the plaintiff may have such other, fur- ther and different relief as may be proper. Sworn to before me, thisl A. B. day of , 19 . J (Signature and title of officer.) FORM NO. 327 Order that Commission Issue to Take Testimony Without the State to be Used Within the State At Special Term, Part I^.of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. On reading and filing the notice of motion for a Commission dated the day of , 19 , and the affidavit 564 Interrogatories to be Propounded of A. B., sworn to the day of , 19 , with due proof of service thereof on the defendant's attorney, and on motion of E. F., attorney for the plaintiff, and no one appearing in opposition thereto,^ it is hereby Ordered that a Commission issue in this action directed to M. N. of No. , Street, in the City of Philadelphia, State of Pennsylvania, to examine under oath on interrogatories thereto annexed L. M., residing at No. , Street, City of Philadelphia, State of Penn- sylvania, a witness on behalf of the plaintiff, and that the de- fendant be at liberty to join in said Commission. Enter P. A. H., J. S. C. FORM NO, 328 Interrogatories to be Pi'opounded ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Interrogatories to be Propounded to L. M. of Street, City of Philadelphia, State of Pennsylvania, to be Examined under the Annexed Commission on Behalf of the Plaintiff. 1. State your name, business and place of residence. 2. Are you acquainted with the parties to this action? 3. If your answer to the said question is yes, state how long ' If the motion for a Commission is opposed and'is granted recite the affidavits which were used in opposition and the appearance of the attorney for the opposi- tion, otherwise proceed as in the form in the text. 2 Cross interrogatories are propounded in practically the same form, except that they arc called cross interrogatories, instead of interrogatories. DEPOSITIONS 565 Notice of Settlement of Interrogatories on Commission to Take Testimony you have been acquainted with the parties to the action or either of them. 4. Were you present at a conversation between the plaintiff and the defendant at or about the day of , 19 ? 5. If the answer to the last question is yes, state the sub- stance of the conversation as nearly as you can remember it, stating what the plaintiff, A. B., said and the defendant, C. D., said. 6. State any other facts within your knowledge concerning the transaction in question between the plaintiff and the de- fendant which may tend to the benefit and advantage of the plaintiff and state the same fully and at length as if you had been particularly interrogated concerning the same. E. F., Attorney for the Plaintiff. FORM NO. 329 Notice of Settlement of Interrogatories on Commission to Take Testimony Without the State to be Used Within the State ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that the within interrogatories will be presented to Hon. Peter A. Hendrick, one of the Justices of 1 On the settlement of the interrogatories to be attached to a commission the only objection that can be considered is as to whether or not they are pertinent to the issues as made by the pleadings, and when interrogatories and cross interrogatories are presented for settlement and a large number of objections are made thereto on the ground of irrelevancy, immateriality and incompetency, but there is no specific objection of lack of pertinency, the interrogatories will either have to be settled as proposed or returned to the parties so they can make their own corrections and move for settlement upon objections authorized by the Code. Middleton v. Spreckles, 3 Bradbury's Pl. & Pn. Rep. 585. 566 Bradbury's lawyers' manual Commission Oral Questions the Supreme Court, at Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Courthouse therein on the day of ,19 , at 10:30 o'clock A. M., to be annexed to the com- mission allowed herein by an order of this court made on the day of r 19 > for the purpose of settle- ment of said interrogatories. Dated the day of , 19 . To: Yours, etc., G. H.,Esq., E. F., Attorney for Defendant. Attorney for Plaintiff. FORM NO. 330 Commission Oral Questions ^ (Code Civ. Pro., §§ 887-913) The People of the State of New York. To John Jones, No. , Street, Chicago, Illinois: Know ye, that we, with full faith in your prudence and com- ' Printed forms of commissions which may be purchased at any dealer in legal blanks are invariably used. They are somewhat lengthy and must contain an endorsement of §§ 901 and 902 of the Code of Civil Procedure, containing direc- tions for the execution and return of the commission. These blanks also contain full directions as to the execution and return of the commission and the profes- sion as a rule has found it convenient to use them. The interrogatories and cross interrogatories are attached to these printed forms of commission. The court sometimes grants what is called an open commission. That" is, the questions are propounded orally at the time of the examination and are reduced to writing by the Commissioner or by a stenographer who takes the questions and answers at the time they are propounded in the same manner as they would be taken into court. The practice on an application for an open commission is ex- actly the same as it would be upon interrogatories, except that there must appear special reasons showing why an open commission should be granted instead of one on interrogatories. Moreovei-, the court not infrequently attaches somewhat onerous conditions to an open commission. One of these conditions not infre- quently is that the person applying for the open commission must pay the ex- penses of the attorney for the opposite party to attend. at the place of the hearing and cross-examine the witness. This condition is made in cases where a very important witness upon whom practically depends the determination of the ac- DEPOSITIONS 567 Commission Oral Questions petency, have appointed you Commissioner and by these pres- ents do authorize you to examine William Brown, residing at No. , Street, Chicago, Illinois as witness in an action pending in the New York Supreme Court in New York County between Adam Brown, plaintiff, and Charles Darwin, defendant, on the part of the plaintiff, under oath, upon oral questions, and to take and certify the deposition of each wit- ness and return the same and this commission according to the directions given in or with this commission. Witness, honorable Peter A. Hendrick, one of the justices of our said Supreme Court, the day of one thousand hundred and [Seal.] Peter J. Dooling, CUrk. Directions tor Executing the Commission (Sections 900, 901 and 902 of the Code of Civil Procedure should be printed here.) The execution of the Commission appears in certain sched- ules hereunto annexed. Commissioners. Further Instructions to Commissioners I. All the Commissioners named in the Commission should have notice of the time and place of executing it; and if any of them do not act, let the fact that they were notified, or could not be notified and the reasons for their not acting be stated. .II. . The Commission must be executed by , the Commissioner named therein. tion is to be examined, or where there are a number of witnesses to be examined so that, as a matter of fact, the trial of the action is practically held in the foreign jurisdiction where the witnesses are examined. Where the commission is an open one the order is in the same form as above except that it provides that the witnesses shall be examined on oral questions which shall be taken down by the Commissioner and returned and also provides any terms which may be imposed on the application for the commission. 568 Bradbury's lawyers* manual Commission Oral Questions III. The acting Commissioner will examine the witnesses separately, after publicly administering to them the following oath or affirmation: "You do swear, that you will testify the truth, the whole truth, and nothing but the truth, as to the matters respecting which you are to be examined. So help you God." The oath shall be administered (except in cases hereinafter mentioned) by the witness laying his hand upon, and kissing the Gospels. But if the witness shall desire it, he shall be permitted to swear in the following form: "You do swear in the presence of the ever living God," and while so swearing he may or may not hold up his hand, at his option. Or if the witness shall declare that he has conscientious scruples against taking an oath or swearing in any form he shall be permitted to make his affirmation in the following^ form: " You do solemnly, sincerely, and truly declare and afirm," omitting the words "So help you God." IV. The general style or title of the depositions must be drawn up in the following manner: "Deposition of witness, produced, sworn (or affirmed), and examined the day of in the year one thousand hundred and at upon under and by virtue of a Commission issued out of the Court of in a certain cause therein depending and at issue between defendant, as follows: A. B. of {insert his place of residence and occupation) aged years and upwards, being duly and publicly sworn (or affirmed) pursuant to the directions hereto annexed, and examined on the part of the doth depose and say as follows: V. When the witness has finished his deposition, and has carefully read it, or has heard it read, let him subscribe it, and the acting Commissioner will certify as prescribed in the foregoing ' ' Directions. ' ' VI. If any exhibit is produced and proved, the exhibit, or if the witness or other person having it in his custody does not DEPOSITIONS 569 Commission Oral Questions surrender it, a copy thereof must be annexed to the deposi- tion to which it relates, and be subscribed by the witness proving it, an(i be endorsed by the Commissioners, in this manner : "At the execution of a Commission for the examination of witnesses, between defendant this exhibit num- bered and hereto annexed, was produced and shown to (insert the witness's name) and by him deposed unto, and subscribed by him at the time of his examination, before Commissioner. VII. The acting Commissioners will sign their names to each half-sheet of the depositions and exhibits. VIII. If an interpreter is employed, one of the Commissioners will administer to him the following oath and certify thereto : "You do solemnly swear, that you will truly and faithfully interpret the oath and questions to be administered to , a witness now to be examined,«out of the English lan- guage into the language and that you will truly and faithfully interpret the answers of the said thereto, out of the ■ into the English language." Let the depositions be subscribed by the interpreter as well as by the witness, and certified by the acting Commissioners as in No. VI. IX. All the depositions and exhibits, with the certificate of the Commissioner, must be annexed to the Commission, or to a certified copy of the order for taking the deposition, and then the Commission, the directions, the questions, deposi- tions and exhibits, must be folded into a packet and bound with tape. The acting Commissioners are to set their seals at the several meetings or crossings of the tape, endorse their names on the outside and direct it thus: To:— Esq., Clerk of the at {the official residence of the Clerk) . X. When the Commission is thus executed, made up and directed, it must be returned in the manner specified in the direction of the Commission, if there be any. 570 Bradbury's lawyers' manual Commission Oral Questions XI. In case of returning the Commission by mail, it is to be deposited by one of the acting Commissioners in the nearest post-ofRce, he making the following endorsement thereon: "Deposited in the post-office at this day of 19 , by me, Commissioner. The Commissioners are requested to be very careful to ob- serve the foregoing instructions, as the smallest variance may vitiate the execution of the Commission. If the Commission be returned by an agent, let him be in- structed to call, on his arrival at this place, upon who will direct him as to its delivery. Endorsed on back: Let the within commission be returned through the post- office directed to Peter J. Dooling, Clerk of the County of New York. Dated ,19-. Clerk. DEPOSITIONS 571 Affidavit on Motion to Secure Examination of Witness in the State FORM NO. 331 Affidavit on Motion to Secure Examination of Witness in the State to be Used Without the State (Code Civ. Pro., §§ 914, 919; Rule 17, Gen. Rules of Prac.) New York Supreme Court, New York County. In the Matter of the Application for a subpoena to John Jones, for his examination under a Commission issued in an action in the Supreme Court of the State of Minnesota, in an action pending therein, in which Adam Brown is the plaintiff and Charles Darwin is the defendant. ss: State of New York County of New York George Henry, being duly sworn, deposes and says that he is an attorney and counselor at law, duly admitted to prac- tice in the courts of the State of New York. That he represents in New York State Adam Brown, who has brought an action in the Supreme Court of the State of Minnesota, against Charles Darwin, and a copy of the complaint and answer in said action are hereto annexed and made a part of this applica- tion. A commission has duly issued out of the said Supreme Court of the State of Minnesota to Ely Franklin, of No. Broadway, Borough of Manhattan, City and State of New York, as Commissioner, to take the testimony of John Jones, who resides at No. , Street, Borough of Manhattan, City and State of New York, in relation to the issues arising in said action. 572 Bradbury's lawyers' manual Affidavit on Motion to Secure Examination of Witness in the State (Deponent further says that the testimony of the said John Jones will be material and necessary to the plaintiff in the prose- cution of said action as deponent is informed and verily be- lieves.) The sources of deponent's knowledge and the ground of his belief consist of various letters which deponent had re- ceived from the plaintiff herein, copies of which are hereto an- nexed and made a part of this application and it appears by such letters that the said John Jones was present at a conver- sation between the parties to said action, on or about the day of , 19 , when the subject of the litigation was under discussion and is able to testify as to the conversations which were then and there had, in relation to the matters which are the subject of the htigation in the action. Deponent further says that a copy of the commission which has been issued herein is hereunto annexed and made a part of this application. No previous application for a subpoena herein has been made. Deponent therefore prays that a subpoena may issue re- quiring the. said John Jones to appear before E. F., Esq., said Commissioner, at his office No. , Street, Bor- ough of Manhattan, City and State of New York, on the day of ; 19 , at eleven o'clock in the fore- noon, for examination in relation to the said matters herein- before recited. Sworn to before me, this \ George Henry. day of , 19 . {Signature and title of officer.) DEPOSITIONS 573 Order for the Issuance of Subpcena to Compel Witness to Testify FORM NO. 332 Order for the Issuance of Subpoena to Compel Witness to Testify on an Examination in the State, to be Used Without the State (Code Civ. Pro., §§ 914, 919; Rule 17, Gen. Rules of Prac.) New York Supreme Court, New York County. In the Matter of the Application for a subpoena to John Jones, for his examination under a Commission issued in an action in the Supreme Court of the State of Minnesota, in an action pending therein, in which Adam Brown is the plaintiff and Charles Dar- win is the defendant. On the annexed affidavit of George Henry, sworn to the day of , 19 , and on the exhibits at- tached to said affidavit and on motion of said George Henry, it is hereby Ordered that a subpoena^ issue requiring said John Jones who resides at No. , Street, in the Borough of Manhattan, City and State of New York, to appear before Ely Franklin, Esq., Commissioner appointed under a Com- mission from the Supreme Court of the State of Minnesota, in an action between Adam Brown, plaintiff, and Charles Dar- win, defendant, and give testimony concerning the issues in said action, at the office of said Conmiissioner, No. , Street, Borough of Manhattan, City and State of New York, on the day of , 19 , at 1 The subpcena must be served on the witness at least two days before the return day and if it is required to produce books or papers the subpoena must be served on the witness at least five days before the return day. Rule 17, Gen. Rules of Prac. 574 Bradbury's lawyers' manual Petition to Secure Order for Discovery and Inspection of Books and Papers eleven o'clock in the forenoon and on such further days as the same may be duly adjourned by said Commissioner [and that on said examination said John Jones produce the following books and papers (describe them)], and said John Jones shall be required to deliver certain papers or books to the Commissioner or to produce the originals thereof and deposit the same with the Commissioner. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. FORM NO. 333 Petition to Secure Order for Discovery and Inspection of Books and Papers ^ (Code Civ. Pro.,i§§ 803-809; Rules 14, 15 and 10, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, agi iinst C. D., Defendant. To Hon. Peter A. Hendrick, Justice of the Supreme Court: Your petitioner, CD., respectfully says: 1. That he is the defendant, in the above-entitled action; that this action is brought to recover (here state concisely the ' Section 805 of the Code of Civil Procedure provides that the application for an order for inspection must be by petition. It might, however, be by affidavit notwithstanding the provision of § 805, because by § 768 of the Code it is pro- vided that any proceeding which is required by statute to be instituted by peti- tion may also be instituted by an affidavit setting forth the matter which it is required that the petition shall contain accompanying a prayer for the reUef which would properly be prayed for in the petition; and in like manner a pro- ceeding which is required by statute to be instituted by affidavit may be insti- tuted by ]KHition. DEPOSITIONS 575 Petition to Secure Order for Discovery and Inspection of Books and Papers cause of action) and the defense thereto is {here state concisely the defense), and a copy of the pleadings is hereunto annexed and made a part of this appHcation. (// the application is made by either the plaintiff or the defend- ant before pleading, for the purpose of framing a pleading, as it may be under subdivisions 1 and 2 of Rule 14, of the General Rules of Practice, state the facts as to the condition of the action.) 2. Petitioner further says that a certain book (paper, docu- ment or article) {give description of the book, paper, document or article) is not in the possession or under the control of de- ponent, but is in the possession or under the control of A." B., the plaintiff herein, or his agent or attorney. 3. Petitioner further says that it will be material and neces- sary for him to have the information contained in said books, paper or document (or it will be material and necessary for petitioner to have the information to be derived from an in- spection of said article) and said information will be material and necessary to the defense (prosecution) of said action for the following reasons: {Here state the reasons why the informa- tion to be thus derived is necessary either to formulate a pleading or to prepare the case for trial if the action is at issue.) ^ 4. The particular information which petitioner requires, as above stated, will be supplied by entries which are to be found in said books (papers or documents) (or by an inspection of said article, petitioner will be able to secure the particular information as above specified, which he requires). Petitioner therefore prays that an order may be made per- mitting him and his attorney to inspect said book (paper, docu- ment or article) and to make such copies of the entries in said book (paper or document) as may be necessary for the prose- 1 A motion for inspection of papers for the purpose of framing a complaint was denied in an action by an assignee of a principal to recover from an agent moneys alleged to have been collected by the agent, but it appeared that the agency con- tract in question as to which information was sought was between the plaintiff's assignor and an individual who was not a party to the action, as the defendant in the action was a corporation which was apparently a continuation of the business formerly carried on by the said individual. Associated Lazier Purchasers v. Harry S. Houyt, Inc., 172 App. Div. 650; 158 Supp. 725. 576 Bradbury's lawyers' manual Petition to Secure Order for Discovery and Inspection of Books and Papers cution (defense) of said action {if the order is for the purpose of securing information to plead so state at this place), and that said inspection be allowed during business hours on or before the day of , 19 , and that in default of the said A. B. allowing said inspection in accordance herewith that the plaintiff show cause at Special Term, Part I of this court, to be held ia the County Courthouse in said County on the day of , 19 , why an order should not be made requiring him to permit such inspection, and that the proceedings of the plaintiff herein be stayed until the hear- ing of said application, in accordance with § 805 of the Code of Civil Procedure, and why the defendant should not have such other, further and different relief as may be proper, with the costs of this motion. This action is now at issue (or if not at issue, state the facts), and the time appointed for holding the next trial term where the action is triable begins on the day of , 19 . No previous application for the order herein prayed for has been made. Petitioner. State or New York County of New York CD., being duly sworn, deposes and says that he is the pe- titioner named in the foregoing petition; that he has read and knows the contents thereof; that the same is true to his own knowledge except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true. Sworn to before me, this \ C. D. day of , 19 (Signature and title of officer). DEPOSITIONS 577 Order of Inspection with Alternative Order FORM NO. 334 Order of Inspection with Alternative Order to Show Cause Why Inspection Should not be Granted ^ (Code Civ. Pro., §§ 803-809; Rules 14, 15 and 16, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. An application having been duly made by the above-named defendant, C. D., to require the plaintiff herein, his agents and attorneys, to permit an inspection of a certain book (paper, document or article) in accordance with §.§ 803 to 809 of the Code of Civil Procedure and Rules 14, 15 and 16 of the Gen- eral Rules of Practice, Now, on reading and filing the affidavit of C. D., sworn to the day of , 19 , (and the pleadings herein, copies of which were attached to said affidavit), and it appearing to my satisfaction that an inspection of said book ^aper, document or article) is material and necessary to the 1 On the return of the order to show cause the court may make such an order with respect to the discovery or inspection prayed for as justice requires. The court may appoint a referee to direct and superintend it. Code Civ. Pro., § 807. The order for discovery and inspection is made originally ex parte and as shown in the forms in the text is twofold, It first requires the opposite party to permit the inspection and if the inspection is refused to show cause why a further brder should not be made. While, therefore, the original order is ex -parte, an order as on notice will be made on the return day of the order to show cause either confirming the original order or modifying it or setting it aside, if the op- posite party is able to show that the original order should not have been granted. As contempt proceedings may be founded on the failure of the party to permit the inspection, the ofder for an inspection should be served on the party and also on the attorney. , _ . -. - ■ • 578 Bradbury's lawyers' manual Order of Inspection with Alternative Order ^ defendant in the defense of said action {if the purpose of the order is to secure information to formulate a pleading, recite the facts instead of the above recital as to the defense of the action), and it further appearing that said book (paper, document or article) is not in the possession of the defendant, but is in the possession of the plaintiff, his agents or attorneys, Now, on motion of E. F., attorney for the plaintiff, it is hereby Ordered that A. B., the plaintiff herein, his agents and attorneys, be and hereby is and are required, on or before the day of , 19 , during reasonable hours, to permit the defendant, C. D., and his attorney, to inspect the following books in the possession of the plaintiff, his agent or attorney {if paper, or document, or article, so specify) {here describe particularly the book, paper, document or article) and to permit the said defendant and his attorney to make such extracts or copies from the contents of said book, paper or document as may be material and necessary to the defense to the action and which relate to the merits of the action, and in default of said plaintiff allowing said inspection, it is further Ordered that the plaintiff 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 Courthouse therein on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, why a further order should not be made re- quiring the said plaintiff to permit said inspection above re- cited and why the defendant should not have such other, further and different relief as may be proper, with the costs of this motion. And it is further ordered that all proceedings on the part of the plaintiff be stayed until the granting of such in- spection, or if such inspection is not granted until the hearing on the order to show cause herein. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. DEPOSITIONS 579 Affidavit of Service of Order for Inspection FORM NO. 335 Affidavit of Service of Order for Inspection New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York 1 r SS * County of New York J G. H. being duly sworn, deposes and says that he is over the age of twenty-one years; {if between 18 and 21, state age). That on the day of , 19 , at No. , Street, in the Borough of Manhattan, City, County and State of New York he served the annexed order on A. B., the plaintiff herein, in the following manner, to wit: He first displayed to said A. B. the original order and the signature of the Honorable Peter A. Hendrick, subscribed thereto, and then deponent delivered to and left with said A. B. personally at said time and place true copies of said order and of the affidavit of C. D., sworn to the day of ,19 , attached thereto and left the same with said D. C. Deponent further says that he knew the person so served to be the said A. B., the plaintiff in the above-entitled action. Sworn to before me, this | G. H. day of , 19 . j {Signature and title of officer.) CHAPTER XXIX BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE ^ FORMS NO. PAGE NO. PAGE 336. Plaintiff's notice of trial 581 dar in the Supreme Court, 337. Defendant's notice of trial. . 583 New York County 594 338. Note of issue for trial term in 347. Notice of motion to place New York County 584 case on short cause calen- 339. Notice of motion for prefer- dar in Supreme Court, ence on calendar in New New York County, under York County when de- Rule 5, subdivision 3, of fendant under arrest 585 Trial Term Rules, First 340. Affidavit for preference in District 595 New York County when 348. Affidavit on apphcation to defendant imprisoned un- put cause on short cause der an order of arrest 587 calendar in New York Su- 341. Order preferring case and preme Court, New York setting it down for a day County 596 certain in New York 349. Notice of motion to place case County where the defend- on short cause calendar of ant is under arrest 589 the Supreme Court, New 342. Notice of motion for prefer- YorkCounty,underRule5, ence on calendar in New subd 4, Trial Term Rules, York County where de- First Dist 597 fendant's property has 350. Affidavit to place cause on been attached 590 short cause calendar of the 343. Affidavit to procure prefer- Supreme Court, New York ence on the calendar in County, under Rule 5, New York County when subd. 4, Trial Term Rules, the plaintiff's property is First Dist 598 under attachment 591 351. Notice of motion to restore 344. Order preferring case on oal- case to calendar after dis- endar in New York County agreement of jury or after on the ground that the de- appeal or after verdict to fendant's property is under set aside award 599 attachment 592 352. Affidavit on motion to restore 345. Notice of motion to place case to calendar after dis- ease on trial term short agreement of jury or after cause calendar in the New appeal or after verdict has York Supreme Court, New been set aside... 600 York County 593 353. Order restoring case to oal- 346. Affidavit on motion to place endar 601 case on short cause calen- ' The first step in bringing a case on for trial after it is at issue is to serve a 580 BRINGING CASE ON FOR TRIAL) CALENDAR PRACTICE 581 Plaintiff's Notice of Trial FORM NO. 336 Plaintiff's Notice of Trial New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice that the issues in this action will be brought to trial and- an inquest taken therein at a Trial (Special) Term of the New York Supreme Court, appointed to be held notice of trial on the defendant's attorney in accordance with the form in the text. This notice of trial must be served fourteen days before the first day of the. term if served personally on the defendant's attorney and sixteen days before the first day of the term if served by mail on the defendant's attorney. The de- fendant has the same length of time within which to serve a cross notice of trial on the plaintiff's attorney. The times given above relate to the Supreme Court. In many local courts there are special provisions in relation to the time within which a notice of trial must be served and in many of them it is not necessary io serve a notice of trial for the first day of the trial but it must be served for any day of the term. The latter rule applies to the City Court of the City of New York. It is important in all cases for the defendant to serve a cross notice of trial, because if the plaintiff defaults when the case is called for trial the defendant cannot move to dismiss unless such a notice of trial has been duly served. After serving the notice of trial and twelve days before the first day of the - term in the Supreme Court the party moving the case for trial (usually the plaintiff) must file with the Clerk of the Court a note of issue in accordance with the form in the text and pay the calendar fee to the clerk. If the case is onejn equity in which the matter is tried before a judge without a jury, both the note of issue and the notice of trial should designate the Special Term of the Supreme Court, and if it is an action which is to be tried by jury both of these documents must specify the Trial Term. In New York County the calendar is still further subdivided so that certain tort actions are placed on trial term calendar No. 1, and contract actions are placed on trial term calendar No. 2. The note of issue must specify whether it is calendar No. 1 or calendar No. 2, but there is no neces- sity for such a specification in the notice of trial. In New York and several other counties it is necessary to file only one note of issue as the case remains on the calendar until it is disposed of. But jn some of the other counties, if the case is placed on the calendar and is not disposed of 582 BRADBURY'S LAWYERS' MANUAL Plaintiff's Notice of Trial in and for the County of New York, at the County Court- house therein, on the day of , 19 , at o'clock in the forenoon of that day or as soon there- after as counsel can be heard. Dated the day of , 19 . To: Yours, etc., Ely Franklin, Esq., George Henry, Attorney for Defendant. Attorney for Plaintiff. at the term for which it is noticed, a new note of issue must be filed for a sub- sequent term. It is important that the note of issue should be filed for the same term that the notice of trial is given, otherwise they will both be void. That is, if the note of issue is filed for the January term, for example, and the notice of trial is given for the December preceding or the February following, the case will be held to be improperly on the calendar and will be struck off on motion. If the case has been once tried and there has been a disagreement of the jury or there has been an appeal and a new trial has been ordered, or if the judgment is set aside by the trial justice and a new trial is ordered, the case can be put on the calendar without the payment of a new calendar fee and without the filing of a new note of issue, or serving a new notice of trial, by a motion to restore the case to the calendar. An affidavit on such a motion merely recites the proceed- ings theretofore had and prays that the case may be restored to the calendar. There are local rules as to where these motions are to be made. In New York County motions in regard to trial term calendar No. 1 are made at Trial Term, Part 3, and in regard to trial term calendar No. 2 at Trial Term, Part 14. Calendar motions in relation to the special term in New York County are made returnable at Special Term, Part 3. The local rule should be examined in each case and if there is no local rule then a motion to restore should be made at special term, whether the case is a trial term case or a special term case. That is, it should be made at a special term for motions and an order should be entered and served on the opposite party. Usually the clerk requires that a certified copy of the order be served on him before he will restore the case to the calendar. But again, the practice varies in different jurisdictions. In the portions of the State where it is necessary to serve a new notice of trial and file a new note of issue when the casg is not disposed of at a particular special or trial term, it is usual to follow the same practice where for any reason a new trial is ordered. In such a case neither the note of issue nor the notice of trial would refer to the prior proceed- ings, but would be in the same form as the originals. After an order is made bringing in new parties, there must be a new notice of trial served on the new parties, unless the order specially provides that the case shall retain its place on the day calendar, and that the issues stand of the date stated. Kraus v. Haskin, 2 Bradbury's Pl. & Pr. Rep. 357. BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 583 Defendant's Notice of Trial FORM NO. 337 Defendant's Notice of Trial New York Supreme Court, New York County. Adam Brown, Plaintiff, . against Charles Darwin, Defendant. Please take notice that the issues in this action will be brought to trial and a motion made to dismiss the complaint therein at a Trial (Special) Term of the New York Supreme Court, appointed to be held in and for the County of New York at the County Courthouse therein on the ^ day of , 19 , at o'clock in the forenoon of that day or as soon thereafter as counsel can be heard. Dated the day of , 19 . To: Yours, etc., George Henry, Esq., Ely Franklin, Attorney for Plaintiff. Attorney for Defendant. 584 Bradbury's lawyers' manual Note of Issue for Trial Term in New York County FORM NO. 338 Note of Issue for Trial Term in New York County New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. File 1 No. Year 19 /■ Preference claimedf^n the ground (state the ground of the preference if an order lis not required) ^^ Action for damages for personal injuries, to be placed on Trial_Term Calendar ^ No. 1. ^ Issue joined on the day of , 19 , by service of answer. Noticed for trial for the day of , 19 . Ely Franklin, George Henry, Attorney for Plaintiff, Attorney for Defendant, No. 100 Broadway, No. 31 Nassau Street, Borough of Manhattan, Borough of Manhattan, New York City. New York City. ' All papers which are filed in New York County must contain the clerk's file number, and, as a new serial number is begun in each year the file number must designate the year, as well as the number of the file for that year. ' In cases where no order is required to prefer a cause on the calendar the claim for a preference, specifying the provision of law under which the claim is made may beinserted in the note of issue to be filed with the clerk and it shall be the duty of such clerk to place such cause in its proper place among the preferred causes at the head of the calendar. Code Civ. Pro., § 793. But in New York County a motion must be made for a preference in all cases. See next form and notes. ' If the case is one which should be placed on the contract calendar, that ia, Calendar No. 2, the first item in the note of issue should state the cause of action and that the case is to be placed on trial term calendar No. 2. If the case is to be placed on the special term calendar the first item should state the cause of action with a statement that it is to be placed on the special term calendar. BRINGING CASE ON FOR TRIAL) CALENDAR PRACTICE 585 Notice of Motion for Preference on Calendar in New York County FORM NO. 339 Notice of Motion for Preference on Calendar in New York County when Defendant under Arrest ' (Rule 36, General Rules of Prac; Rule 1, Trial Term Rules, First Dist.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of C. D., sworn to the day of ,'19 , a motion ' Note on Pkbferred Causes There are a large number of general and special rules relating to preferences to be given to cases on the calendar. These rules, of course, are the result of the congestion of the calendars. The Legislature and the courts have endeavored to give preferred hearings to those cases where the greatest damage would be done by delay. The Code of Civil Procedure contains certain rules as to prefer- ences and to secure such preference the party who desires the preference must in a few instances specify his demand therefor in the notice of trial which he serves. Code Civ. Pro., § 791. If the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the case is to be tried or heard, the party desiring a preference must procure an order therefor from the court or judge thereof, upon notice to the adverse party, and a copy of the order for a preference must be served with or before notice of trial or argument. Code Civ. Pro., § 793. A preliminary order is not required under certain provisions of the Code and in such a case a claim for preference specifying the provision of law under which the claim is made may be inserted in the note of issue to be filed with the clerk and it is then the duty of the clerk to place such case in its proper place among the preferred cases on the calendar. In the Counties of New York, Bronx, Kings, Queens and Erie and in the Seventh Judicial District, no action or special pro- ceeding shall be placed as a preferred cause on a calendar unless the party desiring the preference shall serve upon the opposite party, with a notice of trial, a notice that an application will be made to the court at the opening thereof, or to such justice or other term of court at such time as shall be prescribed by the general or special rules of practice, for leave to move the same as a preferred cause, and 586 Bradbury's lawyers' manual Notice of Motion for Preference on Calendar in New York County will be made at Trial Term, Part 3, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein on the day of , 19 , at the opening of court on that day or as soon thereafter if the right to preference depends upon facts which do not appear in the pleadings or other papers upon which the case is to be tried the notice must be accompanied by an affidavit showing such facts. In the counties of New York, Kings, Queens, and Erie, and in the Seventh Judicial District, the application for a preference must be made at the opening of the court, or to such justice or other term of court or at such other time as shall be prescribed by the general rules of practice and if it shall appear that the case is entitled to a preference and is intended to move for trial at or for the term for which the application is made the court or justice must designate a day certain during that trial on which day the said case shall then be heard. Code Civ. Pro., § 793. As a matter of practice in New York County the preferences under the Code are made as a rule only over other cases which are noticed for the same term. That is, if there are five hundred cases already on the trial term calendar in New York County and a case is noticed for the January term and is entitled to a preference under the Code it is only pre- ferred over the cases on the general calendar and the five hundred cases already on the calendar will be heard before the preferred cause on the January calendar. In such a case the case is not set down for a day certain unless the judge to whom the motion is made decides that it is such a case as should be preferred over the other cases on the general calendar, in which event the case is set down for a day certain. But this is not done except under special circumstances, which must be shown by affidavit on the motion. Nearly all courts have special rules for preferring what are known as short causes or commercial causes and placing them on the calendai' for early trial. Rule 5 of the Trial Term Rules in the First District is a rule of this character. In certain cases under subd. 2 of this rule, where the action is to recover a debt or liquidated demand upon a bond or other obligation for the payment of a specific sum of money, or upon a bond or undertaking on appeal, or upon a ne- gotiable instrument, either party may, after the cause has been placed upon the general calendar, upon two days' notice to the opposing party, apply to the Jus- tice holding Trial Term, Part 2 for an order placing said case upon the special calendar for trial and the case shall thereupon be tried and disposed of at Part 2. It win be observed that there is no provision that the trial must not occupy more than a specified number of hours. The provision of the rule is complied with if the action is one such as is specified in the rule. Subdivision 3 of the same rule contains provisions for preferred cases in the same way on different causes of action, where the court can see from the papers submitted that the defense is interposed merely for the purpose of delay. Under this subdivision the court has discretion whether or not to place the case upon the calendar. Under subdivi- sion 4 certain causes are placed upon the calendar where it appears that the trial thereof will not occupy more than two hours. This must be shown by af- fidavit and the court, if satisfied that the case is such as is specified in that sub- division and will not occupy more than two hours and that no good reason exists BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 587 Affidavit for Preference in New York County when Defendant Imprisoned as counsel can be heard, for an order placing the above-entitled action on the calendar as a preferred cause and setting down the same for trial on a day certain at an early date, and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., Attorney for Plaintiff. Attorney for Defendant. FORM NO. 340 Affidavit for Preference in New York County when Defendant Im- prisoned under an Order of Arrest (Rule 36 of the Gen, Rules of Prac; Rule 1, Special Trial Term Rules, First Dist.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action and that he was arrested why the action should not be promptly tried the case will be placed on the special calendar for trial at Part 2. In New York County, by reason of Trial Term Rule No. 1, all calendar mo- tions except those above specified are made to the Justice holding either Trial Term, Part 3, or Trial Term, Part 14. If the case is placed on Calendar No. 1, all such motions are made at Trial Term, Part 3, and if it is placed on Calendar No. 2, all such motions are made at Trial Term, Part 14. If any other County the motion would be made at any special term for motions, unless there was a special rule in a particular county, in relation to the place where calendar mo- tions should be made. Under special rules in New York County calendar motions in relation to the trial term are made at Trial Term, Part 3, if in relation to cases on trial term 588 bradbxjry's lawyers' manual Affidavit for Preference in New York County when Defendant Imprisoned by the Sheriff of the County of New York under an order of arrest issued in said action by Mr. Justice Hendrick, dated the day of , 19 , and that he is now actually imprisoned under said order of arrest. Deponent further says that issue has been joined in the action by the service by the defendant of an answer on the plaintiif's at- torney, and the case has been placed on the general calendar and is No. on Calendar No. 1. Deponent therefore prays that an order may be made pre- ferring this case on the trial term calendar of New York County and that it may be set down for trial on a day certain during the month of > 19 > and that the defendant may have such other, fiu-ther and different relief as may be proper. Sworn to before me, this day of , 19 (Signature and title of officer.) C. D. calendar No. 1 and at Trial Term, Part 14 in relation to cases on trial term calen- dar No. 2. In any other county, such a motion will be made at any term of the court for hearing motions unless there was some special rule in a particular county in relation to hearing of calendar motions. If the motion was made in relation to a, cause on the special term the motion will be returnable at Special Term, Part 3. Rule 12, Special Term Rules of the First District. BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 589 Order Preferring Case and Setting it Down for a Day Certain in New York County FORM NO. 341 Order Preferring Case and Setting it Down for a Day Certain in New York County where the Defendant is under Arrest (Rule 36, Gen. Rules of Prac; Rule 1, Trial Term Rules, First Dist.) At Trial Term, Part 3, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B, Plaintiff, against C. D, Defendant. A motion having been regularly made by the defendant above named to prefer the above-entitled action which is No. on Trial Term Calendar No. 1 of this court as a pre- ferred cause and to set the same down for a day certain, on the ground that the defendant is actually imprisoned under an order of arrest issued in this action. Now, on reading and filing the notice of motion dated the day of , 19 , and the affidavit of C. D., sworn to the day of , 19 , with due proof of service, and said motion having been duly submitted by E. F., Esq., attorney for the plaintiff, and no papers having been submitted in opposition thereto {or ij there is any opposi- tion, recite the facts), Now, on motion of said E. F., attorney for the defendant, it is hereby Ordered that the above-entitled action, which is No. on Trial Term Calendar No. 1 of this court, be placed on the trial term day calendar of ready causes for the day of , 19 . Enter, S. G., J. S. C. 590 Bradbury's lawyers' manual Notice of Motion for Preference on Calendar in New York County FORM NO. 342 Notice of Motion for Preference on Calendar in New York County where Defendant's Property has been Attached (Rule 36, Gen. Rules of Prac; Rule 1, Trial Term Rules, First Dist.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of C. D., sworn to the day of , 19 , that a motion will be made at Trial Term, Part 14, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein, on the day of ,19 , for an order preferring the above-entitled case which is No. on Calendar No. 2 of the Trial Term Calendar of this Court, and setting the same down for trial on a day certain at an early date on the ground that property of the defendant is held under an attachment, and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., Attorney for the Plaintiff. Attorney for Defendant. BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 591 Affidavit to Procure Preference on the Calendar in New York County FORM NO. 343 Affidavit to Procure Preference on the Calendar in New York County when the Defendant's Property is under Attachment (Rule 36, Gen. Rules of Prac. ; Rule 1, Trial Term Rules, First Dist.) New York Supreme Court, New York County. A. B, Plaintiff, against C. D., Defendant. State of New York County of New York C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action. That issue has been joined in this action by the service of an answer. That said action is No. on Calendar No. 2, of the Trial Term Calendar of the Supreme Court, New York County. Deponent further says that certain property of the defend- ant is now actually held under an attachment issued in said action to the Sheriff of the County of New York. Deponent therefore asks that an order may be made pre- ferring said case and setting it down for a day certain at an early date and for such other, further and different reUef as may be proper. Sworn to before me, this day of , 19 . (Signature and title of officer.) C. D. 592 Bradbury's lawyers' manual Order Preferring Case on Calendar in New York County FORM NO. 344 Order Preferring Case on Calendar in New York County on the Ground that the Defendant's Property is under Attachment (Rule 36, Gen. Rules of Prac; Rule 1, Trial Term Rules, First Dist.) At Trial Term, Part 14, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. A motion having been regularly made by the plaintiff above named to prefer the above-entitled case which is No. on Trial Term Calendar No. 2, of the New York Supreme Court, New York County, on the ground that the property of the de- fendant is held under an attachment. Now on reading and filing the notice of motion dated the day of , 19 , and the affidavit of C. D., sworn to the day of , 19 , with due proof of service, submitted by the defendant, and On motion of E. F., attorney for the defendant and no one appearing in opposition thereto {if other affidavits in opposition are submitted, recite the same), it is hereby Ordered that said motion be and the same hereby is granted and said above-entitled case, which is No. on Trial Term Calendar No. 2, in New York County, be and the same hereby is preferred and the Clerk is directed to place the same down on the day calendar of ready causes of this court on the day of , 19 . Enter, P. A. H., J. S. C. BRINGING CASE ON FOR TRIAL ; CALENDAR PRACTICE 593 Notice of Motion to Place Case on Trial Term Short Cause Calendar FORM NO. 345 Notice of Motion ^ to Place Case on Trial Term Short Cause Cal- endar in the New York Supreme Court, New York County (Rule 5, subd. 2, Trial Term Rules," First Dist.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of A. B., sworn to the day of , 19 , a motion will be made at Trial Term, Part 2, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard for an order placing the above-en- titled action, which is No. , on Trial Term Calendar No. 2 of this court, on the calendar for the trial of short causes, at Trial Term, Part 2, in accordance with Rule 5, subd. 2, of the Trial Term Rules, First District, on the ground that the action is brought upon a negotiable instrument, to wit: a promissory note {or state such other ground as is specified in subd. 2 of Rule 5), and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., Attorney for Defendant. Attorney for Plaintiff. 1 A notice of motion of two days must be given to the opposite party, but it is not necessary that it should be given for the first day of the term upon which the cause is placed on the calendar. (Rule 5, subd. 2, Trial Term Rules, First Dist.) 594 Bradbury's lawyers' manual Affidavit on Motion to Place Case on Short Cause Calendar FORM NO. 346 Affidavit on Motion to Place Case on Short Cause Calendar in the Supreme Court, New York County (Rule 5, subd. 2, Trial Term Rules, First Dist.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York E. F., being duly sworn, deposes and says that he is the attorney for the plaintiff in the above-entitled action. This action is at issue and is No. on the Trial Term Calendar, No. 2, of the Supreme Court in New York County. The ac- tion is brought on a negotiable instrument, to wit: a promis- sory note. Deponent therefore prays that the said case may be placed on the Special Calendar for the trial of short causes at Part 2 of Trial Term, pursuant to Rule 5, subd. 2, of the Trial Term Rules, First Dist. Sworn to before me, this ) E. F. day of , 19 . J {Signature and title of officer.) BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 595 Notice of Motion to Place Case on Short Cause Calendar FORM NO. 347 Notice of Motion ^ to Place Case on Short Cause Calendar in Su- preme Court, New York County, under Rule 5, subd. 3, of Trial Term Rules, First District New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of A. B., sworn to the day of , 19 , and on the complaint, answer and all proceedings had in this action, a motion will be made at Trial Term, Part 2 of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein on the day of ,19 , at the opening of court on that day or as soon thereafter as counsel can be heard for an order placing the above-entitled action which is No. on Trial Term Calendar No. 2 of the New York Supreme Court on the Special Calendar for the trial of short causes, pursuant to Rule 5, subd. 3, of the Trial Term Rules, First District, on the ground that said action is brought for the value of goods, sold and delivered, and that the defense thereto was not interposed in good faith, but was interposed merely for the purpose of delay, and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., Attorney for Defendant. Attorney for Plaintiff. 1 The motion under Eule 5, subd. 3 of the Trial Term Rules of the First Dist. must be made for the first day of the term for which the cause is noticed for trial and must be upon five days' notice of motion to the defendant. Under subdivision 3, of Rule 5, no oral argument is heard, but the papers must be filed with the Clerk of Part 2 before twelve o'clock noon of the day for which the application is noticed. 596 Bradbury's lawyers' manual Affidavit on Application to put Cause on Short Cause Calendar FORM NO. 348 Affidavit on Application to put Cause on Short Cause Calendar in New York Supreme Court, New York County (Rule 5, subd. 3, Trial Term Rules, First Dist.) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State op New York , f SS * County of New York A. B., being duly sworn, deposes and says that he is the plaintiff in the above-entitled action. That said action is brought to recover the sum of dollars, with in- terest, for goods sold and delivered {or otherioise state the ground as is specified in subd. 3 of Rule 5) . Said action is at issue and is No. on Trial Term Calendar No. 2, of the New York Supreme Court, New York County, and said cause has been noticed for trial for the term beginning the day of 19 . Deponent further says he verily believes that the defendant has no substantial defense to the action and that the answer herein was not interposed in good faith but was interposed for the purpose of delay. Deponent has frequently talked with the said C. D. in relation to the said claim for goods sold and de- livered and said CD. has admitted to the plaintiff many times that he, the said CD., owed the money on said claim and that he had no defense thereto, but has requested the plaintiff for delay in the payment of said claim. Wherefore the deponent requests that the case may be placed on the special calendar for the trial of short causes at BRINGING CASE ON FOR TRIAL) CALENDAR PRACTICE 597 Notice of Motion to Place Case on Short Cause Calendar Part 2, of the Trial Term of this court, pursuant to Rule 5, subd. 3, of the Trial Term Rules of the First District and for such other, further and different relief as may be proper. Sworn to before me, this 1 A. B. day of , 19 . {Signature and title of officer.) FORM NO. 349 Notice of Motion ^ to Place Case on Short Cause Calendar of the Supreme Court, New York County, under Rule 5, subd. 4, Trial Term Rules, First Dist. New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of E. F., sworn to the day of , 19 , and on the pleadings in this action", a motion will be made at Trial Term, Part 2, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , at the opening court on that day or as soon thereafter as counsel can be heard, for an order placing the above-entitled action which is No. on Trial Term Calendar No. 2, Supreme Court, New York County, on the special calendar for trial at Trial Term, Part 2, on the ground that the action is brought on a contract ' Two days' notice of motion must be given undw subdivision 4 of Rule 5, but the motion need not be returnable on the first day of the trial for which the cause is noticed on-the January calendar. No oral arguments will be heard, on the motion, but the papers must be submitted to the Clerk before twelve o'clock on the day for which the application is noticed. (Rule 5, subd. 4, Trial Term Rules, First Dist.) . , 598 Bradbury's lawyers' manual Affidavit to Place Cause on Short Cause Calendar and that the trial thereof will not occupy more than two hours and that no good reason exists why the action should not be promptly tried and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., Attorney for Defendant. Attorney for Plaintiff. FORM NO. 350 Affidavit to Place Cause on Short Cause Calendar of the Supreme Court, New York County, under Rule 5, subd. 4, Trial Term Rules, First District New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York f ss: E. F., being duly sworn, deposes and says that he is the attorney for the plaintiff in the above-entitled action. That said action is now at issue and has been placed on the Trial Term Calendar No. 2, of the Supreme Court, New York County, and is No. thereon. Said action is brought to recover on an express contract other than a contract to marry, as follows: (Here state concisely the cause of action.) Deponent further says that the trial of the action will not occupy more than two hours and no good reason exists why the action should not be promptly tried. Deponent further says that in proving said cause of action it will not be necessary for him to call more than one witness who will be the plaintiff BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 599 Notice of Motion to Restore Case to Calendar himself and by reason of the nature of the defense set forth in the answer he does not beUeve that there can be more than two witnesses called on behalf of the defendant. {Any other facts should be stated which will lead to the belief that the case may be tried within two hours.) Deponent further prays that an order may be made placing the case on the special calendar for trial, at Part 2, and for such other relief as may be proper. Sworn to before me, this day of , 19 . {Signature and title of officer.) FORM NO. 351 Notice of Motion to Restore Case to Calendar after Disagreement of Jury or after Appeal or After Verdict to Set Aside Award New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavit of E. F., sworn to the day of , 19 , a motion will be made at Trial Term, Part 14, ^ of the New York Supreme Court, to be held in and for the County of New York at the County Courthouse therein, on the day of ,19 , at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order restoring the above-entitled case which is No. on Calendar No. 2 of the Supreme Court, New York County, to the day cal- ■' If the action was on Calendar No. 1 of the general calendar of New York County, the motion will be made at Trial Term, Part 3. A notice of two days must be given. 600 Bradbury's lawyers' manual Affidavit on Motion to Restore Case to Calendar endar of ready causes for trial, and for such other, further and different reUef as may be proper. Dated the day of To: G. H., Esq., Attorney for Defendant. ,19 . Yours, etc., E. F., Attorney for Plaintiff. FORM NO. 352 Affidavit on Motion to Restore Case to Calendar after Disagree- ment of Jury or After Appeal or after Verdict has been Set Aside New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. State of New York County of New York ss: E. F., being duly sworn, deposes and says that the above- entitled action was tried before Mr. Justice Greenbaum and a jury, at Trial Term, Part 14, of the New York Supreme Court, on the day of , 19 , and upon such trial said jury failed to agree.' Said action is No. on Calendar No. 2 of the general cafendar of the Supreme Court, New York County. "De|)oiient therefore prays that an order may be made re- storing the case to the day calendar for trial. Sworn to before me, this day of , 19 . (Signature and title of officer.) E. F. ' If the motion is made after the verdict has been set aside, but the complaint has not been dismissed, or if it is made after an appeal and the appellate court has ordered a new trial, recite the facts in the first paragraph of the above form instead of the fact as therein stated that the jury disagreed. BRINGING CASE ON FOR TRIAL; CALENDAR PRACTICE 601 Order Restoring Case to Calendax FORM NO. 353 Order Restoring Case to Calendar At Trial Term, Part 14, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D., Defendant. A motion having been regularly made to restore the above- entitled case to the day calendar of ready causes, which said case is No. on Cal6ndar No. 2 of the trial term calendar of New York County, on the ground that upon the former trial of this case the jury disagreed (or upon the ground that the judgment heretofore rendered in this action has been reversed by the Appellate Division of the Supreme Court, and a new trial ordered, or upon the ground that upon the trial of this action the verdict rendered therein was set aside by the trial court and a new trial ordered), and that the action be placed on the day calendar of ready causes of this court on the day of ' , 19 . Enter, S. G., J. S. C. CHAPTER XXX SUBPCENAS FORMS NO. PAGE NO. PAGE 354. Subpoena; general form 602 357. Subpoena duces tecum 605 355. Referee's subpoena 603 358. Affidavit of service of sub- 356. Subpoena issued by judge. . . 604 poena 606 FORM NO. 354 Subpoena — Qeneral Form ^ The People of the State of New York. To . Greeting: We command you, that all business SUBPCENA TO and excuses being laid aside, you and APPEAR AND TESTIFY, sach of you appear and attend before Mr. Justice Hendrick at Trial Term, Part 14, of the New York Supreme Court in the New York County Courthouse, on the day of , 19 , at o'clock, in the noon, to testify what 1 Ordinarily a subpoena in a civil action in a court of record in New York, is signed onlj' by the attorney for the party on whose behalf it is issued. Code Civ. Pro., § 24. In some instances, however, it must be signed by the judge. Usually in special proceedings the subpoena must be signed by the officer before whom the witness is required to appear. Code Civ. Pro., § 854. Whether or not this rule applies to a special proceeding in an action usually depends upon the wording of the statute which authorizes such proceeding. Thus, the deposition of a wit- ness may be taken for use on a motion under Code Civ. Pro., § 885, which pro- vides that the witness may be required to appear by a subpoena served upon him as upon a trial, which would seem to indicate that the subpoena might be signed by the attorney. In case of doubt it is always the safest way to have the sub- poena signed by a judge. A subpoena which is issued in an action pending in the court is tested in the name of a judge of the court, but is signed by. the attorney, and the attorney not only signs his own name but also signs the name of the clerk. Code Civ. Pro., § 24. Lowlher v. Lowther, 115 App. Div. 307; 100 Supp. 965. But this does not 602 SXJBPCENAS 603 Referee's Subpoena you and each of you may know in a certain action in which Abel Brown is the plaintiff and Charles Darwin is the defend- ant, on the part of the said 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. Peter A. Hendrick, one of the Justices of the Supreme Court at the County Courthouse therein, the day of , 19 . William Brown, John Jones, Attorney for the Plaintiff, Clerk. No. 1 Nassau St., New York City. FORM NO. 355 Referee's Subpoena The People of the State of New York: To John Jones. Greeting: We command you, that all business and excuses being laid aside, you and each of yoa appear and attend before Robert Smith, Esq., the Referee appointed by the Supreme Court at the Office of said Referee, Number 100 Broadway, Manhattan Borough, New York City, on the day of , 19 , at o'clock in the noon, to testify and give evidence in a certain action now pending in the said Court, then and there to be tried, between Adam Brown, plaintiff, and Charles Darwin, defendant, on the part of the plaintiff. And for a failure to attend, you will be deemed guilty of a contempt of Court, and liable to pay all loss and apply to any proceeding instituted or pending before a judge, referee or other officer, as in such a case the subpoena itself must be signed by the judge, referee or other officer and this includes a subpoena issued in a proceeding supplemen- tary to execution. Lowther v. Lowlher, 115 App. Div. 307; 100 Supp. 965. 604 Bradbury's lawyers' manual SubpcBna Issued by Judge damages sustained thereby to the party aggrieved, and forfeit Fifty Dollars in addition thereto. Witness, Hon. Irving Lehman, a Justice of the said Court at the Courthouse in the County of New York, the day of , 19 . Ely Franklin, Robert Smith, Plaintiff's Attorney. Referee. FORM NO. 356 Subpoena Issued by Judge The People of the State of New York: To . Greeting : We command you, that all business and excuses being laid aside, you and each of you appear and attend before one of the Justices of our Supreme Court, at a Special Term, part of said Court, to be held in and for the County of New York, at the County Courthouse, in the Borough of Man- hattan, of the City of New York on the day of ,19 , at o'clock in the forenoon, to testify and give evidence in a certain action (proceeding) now pending in the Supreme Co\irt, then and there to be tried (heard) between , plaintiff and , defendant, on the part of the and for a failure to attend, you will be deemed guilty of a contempt of Court, and Uable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit Fifty Dollars in addition thereto. Witness, Hon. Peter A. Hendrick , one of the Justices of our said Supreme Court, at the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court Eli Franklin, of the State of New York. Attorney for Plaintiff (Defendant^. SUBPCENAS 605 SubpcEna Duces Tecum FORM NO. 357 Subpoena Duces Tecum ^ The People of the State of New York : To . Greeting: We command you, that all business and excuses being laid aside you appear and attend before Hon. Peter A. Hendrick, a Justice of the Supreme Court, at Trial Term, Part 14, of the New York Supreme Court in the County Courthouse in New York County, on the day of , 19 , at o'clock in the noon, to testify and give evidence in a certain action now pending undetermined in the said Court between , plaintiff, and defendant, on the part of the and that you bring with you, and produce at the time and place aforesaid, a cer- taia {describe papers or books which are required to be produced) now in your custody, and all other deeds, evidences and writ- ings which you have in your custody or power, concerning the premises. And for a failure to attend, you will be deemed guilty of a contempt of Court, and liable to pay all loss and damages sustained thereby, to the party aggrieved, and forfeit Fifty Dollars in addition thereto. Witness, Hon. Peter A. Hendrick, one of the Justices of the Supreme Court at the County Courthouse, New; York County, this day of , 19 . William Brown, - ' ' John Jones, Attorney for Defendant (Plaintiff). Clerk. ' A subpcEna duces tecum, in all eases, must be served on the witness five days before the return day, where it is required to produce a book of account or a book or paper belonging to or under the control of a corporation. Code Civ. Pro., §§ 867, 868, 869. There does not seem to be any hmit, however, as to the time within which a subpoena duces tecum can be served on a natural person. Code Civ. Pro., § 867. 606 BRADBURY S LAWYERS MANUAL Affidavit of Service of Subpoena FORM NO. 358 Affidavit of Service of Subpoena (Code Civ. Pro., § 852) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York E. F., being duly sworn, deposes and says that he is over the age of twenty-one years {if between eighteen and twenty-one, state age). That on the day of , 19 , at No. , Street, Borough of Manhattan, City, County and State of New York, he served the annexed subpoena on G. H., by first exhibiting to him the original subpoena and by delivering to and leaving with said G. H., a true copy thereof. Deponent further says that at the time of such service he gave to said G. H. the sum of dollars, being fifty cents for one day's attendance as a witness and dollars as mileage for traveling miles in obeying said subpoena. ' Deponent further says that he knew the person so served ' The witness fees in the Supreme Court are fifty cents for one day's attendance and eight cents a mile for the distance which the witness is required to travel from the place of his residence to the place where he is directed to appear, pro- vided the distance is more than three miles. If the distance is less than three miles no mileage is allowed and fifty cents is sufficient for the fee. Code Civ. Pro., § 3318. STJBPCENAS 607 Affidavit of Service of Subpoena to be the said G. H., the person to whom said subpoena was directed. Sworn to before me, this day of , 19 . (Signature and title of officer.) E. F. CHAPTER XXXI NOTICE TO PRODUCE FORMS NO. PAGE 359. Notice to produce 608 FORM NO. 359 Notice to Produce ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that you are hereby required to pro- duce upon the trial of this action the following papers: (de- scribe the papers to which the notice to produce relates). And in default of the production of the same, secondary evidence of ' A notice to produce does not take the place of a subpoena dttces tecum. Under a subpoena duces tecum tiie party upon whom it is served is required to produce the papers and if they are not produced, pursuant to the subpcena, the party may be punished for a contempt. A notice to produce only gives the party who has served the notice the right to offer secondary evidence of the contents of the papers as to which the notice relates if they are not produced by the other party, assuming that the other party has possession thereof. For example, if the de- fendant has written letters to the plaintiff, which are competent as evidence, and the defendant has copies of these letters and desires to prove that such letters were written to the plaintiff upon the trial, he may give a notice to produce, and if the plaintiff does not produce the letters at the trial then the defendant can offer the copies of the letters upon proper evidence that the originals were mailed to the plaintiff. If such a notice to produce had not been given of course the defendant could not introduce the copies of the letters as they are not the best evidence. It is unsafe, however, to rely on a notice to produce where the party who gives the notice is not in a position to prove by secondary evidence the con- 608 NOTICE TO PRODUCE 609 Notice to Produce the contents thereof will be offered upon the trial of this action. Dated the day of , 19 . Yours, etc., G. H., Attorney for Plaintiff (Defendant). To: E. F., Esq., Attorney for Defendant (Plaintiff). tents of the papers themselves. In such a case a subpoena duces tecum should be served. It is also dangerous to rely upon a notice to produce where- there is any question about the fact as to whether or not the party on whom the notice is served has the possession of the papers. If the papers are of such a character that they might be in the possession of someone else rather than the party on whom the notice is served the only safe course is to subpoena the party who may have possession and not rely on a notice to produce. Such papers, however, as letters which have been written by the defendant, for example, to the plaintiff are presumed to be in the possession of the plaintiff or under his control and the mere fact that he does not have possession, if he has voluntarily disposed of possession, or has destroyed the letters, would not prevent secondary evidence from being given upon proof of service of a notice to produce on his attorney. It should be observed that the notice to produce is served on the attorney for the party and not on the party himself. When a notice to produce is to be used in court as the basis of offering secondary evidence there should be an affidavit of service, or an admission of service endorsed thereon or attached thereto. For form of affidavit of service of paper on an attorney see the chapter on Service of Papers other than Summons. CHAPTER XXXII TRIALS ' FORMS NO. PAGE 360. Affidavit to secure adjournment of trial 610 FORM NO. 360 Affidavit to Secure Adjournment of Trial New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. State of New York County of New York George Henry, being duly sworn, deposes and says that he is the attorney for the plaintiff (defendant) in the above- entitled action. Deponent is also the attorney for the plaintiff (defendant) ' Note on Trial Practice Upon the case being called for trial the jury is first called, if it is a trial teiin case, and are subject to the examination of the attorney for either party. A juror may be challenged for prejudice or bias and excused by the court. Each party also has six peremptory challenges. That is, he may challenge six juroi's without giving any reason therefor and they must be excused. But after six jurors have been excused on peremptory challenges all other challenges must be decided by the judge presiding at the trial. If a challenge which is made is not sustained by the trial judge the counsel making the challenge should have the fact of the challenge and the failure of the judge to sustain the same noted in the stenographer's minutes and an exception should be taken to the i-uling. Otherwise the ruling could not be reviewed on an appeal from the judgment. Also, at this stage of the proceeding, the stenographer usually does not take down 610 TRIALS 611 Affidavit to Secure Adjournment of Trial in the case of Smith v. Brown, now actually on trial before Mr. Justice and a jury in Trial Term, Part , of the Supreme Court, Kings County {or otherwise state the place where counsel is engaged). Or, Immediately upon being advised that this case would be on the examination of the jurors, and therefore it is important to see that a note is made of the challenge and the ground thereof and the ruling of the trial judge and the exception of such ruling. If each side has expressed satisfaction with the jurors they are then sworn and the plaintiff opens the case to the jury and the defendant follows and opens the defendant's case to the jury, before any testimony is taken. Motions on the pleadings, which may be made at the trial, should be made at this time, either before the opening or after the opening. If a motion on the pleadings is to be based in part on the opening of the attorney for either party the opposite party should request that the opening by his adversary be taken by the stenographer. If this is not done no motion can be based on the opening of counsel. Motions based on the pleadings should be made before testimony is taken, except where a defect appears only after certain testimony is taken, in which case the motion can be made whenever the defect is thus made to appear. As to when defective pleadings may be amended on the trial see Bradbury's Rules of Pleading, page 1624. If a party by reason of a faulty pleading which cannot be cured by an amend- ment at the trial, or because of failure of proof, which it seems probable can be cured on another trial desires to have a mistrial declared for the purpose indi- cated, his remedy is to ask the trial judge for permission to withdraw a juror, which has the effect of nuUifjdng all that has gone before in that trial. This motion is addressed to the discretion of the trial judge and he invariably imposes terms on the party making the request as a condition of granting it. Whenever an objection is made to the ruling of the presiding justice and the objection is overruled, an exception should be noted to the ruling of the trial judge, otherwise it may not be possible to review such ruling in an appellate court. At the end of the plaintiff's case the defendant should move to dismiss the complaint if he desires to review any judgment which may be entered on a ques- tion of fact. It should also be remembered that it is necessary to state the ground on which the motion is made. If it is made on a question of fact purely it gen- erally is on the ground that the plaintiff has failed to prove facts sufficient to constitute a cause of action. If there are any other legal grounds they should be stated on the motion. The motion to dismiss should be renewed at the end of the entire case, because if it is not the defendant waives the motion which he has made at the end of the plaintiff's case. Again, the grounds should be stated specifically and as a rule the motion should be not only to dismiss but to direct a verdict in favor of the plaintiff, in a proper case. The difference between a dismissal and a direction of a verdict is that if the case is dismissed merely because of failure of proof, the 612 Bradbury's lawyers' manual Affidavit to Secure Adjournment of Trial the day calendar for the day of , 19 , deponent caused to be prepared the subpoenas to serve on WiUiam Smith and John Jones, two material and necessary witnesses in the trial of said action. Said witnesses, as deponent has been advised by them, will give testimony in relation to the cause of action stated in the complaint as they were eye- plaintiff may be able to begin over again, whereas if a verdict is directed in favor of the defendant, this is a disposition of the case on the merits and the plaintiff cannot begin over again unless such directed verdict and the judgment entered thereon is set aside on appeal, or otherwise. If both sides move for a direction" of a verdict the court may take the case from the jury and direct such verdict as he deems proper and this directed verdict will have the same effect as a verdict rendered by the jury. But either party has a right to request that the matter be submitted to the jury after his motion for a | direction has been denied. Another practice has grown up of having the trial judge reserve decision on the motion to dismiss or direct a verdict until after the verdict comes in, in which case he has the same power to dismiss or direct a verdict as he had before the verdict was rendered. It must appear, however, that neither party objected to this reservation of decision on the motion before the verdict. Even though the trial judge does not reserve decision on the motion to dismiss he may still dismiss after the verdict comes in if it is determined that either on the whole case or on some essential feature there is no evidence to support a verdict. After the attorneys for the defendant and the plaintiff have severally summed up the case a careful note should be made of such portions of the judge's charge as to which it is desired to take an exception, when the judge has finished his charge. These exceptions should be noted on the record. Not infrequently, requests to charge are formulated in typewritten form and handed to the trial judge at the beginning or during the progress of the trial. If this has been done and the judge fails to charge in accordance with the written requests, the best practice is to have the written requests marked for identification and then on the record take an exception to the refusal of the judge to charge as requested, as to each of the particular requests. Further requests to charge may be made orally after the judge has finished his charge and if such requests are refused > then an exception should be noted to the refusal. After the verdict is rendered, if the successful party desires to move for an extra allowance on the ground that the case is a difficult and extraordinary one this is the appropriate time to make such a motion, although it may be made later at the same term. After the verdict is rendered the defeated party should move at once to set the verdict aside and for a new trial on all the grounds stated in § 999 of the Code of Civil Procedure, except inadequacy. Of course, if the successful party desires to moyc to set aside the verdict on the ground that it is inadequate he may do so. If this motion is denied there should be an exception noted, and if the motion is granterl the person in whose favor the verdict is rendered should also note an TRIALS 613 Affidavit to Secure Adjournment of Trial witnesses to the accident which forms the basis of the cause of action {or otherwise state generally how the witnesses are material) . Deponent learned, however, that both of said witnesses were without the State on business trips, and one of them would not return until the day of , 19 , and the other would not return until the day of , 19 . It would be highly prejudicial to the interest' of the plaintiff (defendant) if the case was forced to trial without the presence of these witnesses. Deponent therefore asks that the case be adjourned for the purpose of either securing their presence or taking their testi- mony by deposition, if they do not retm-n to town on or before the day of , 19 . Or, That the plaintiff, A. B., is confined in the Hospital and is too ill to be present at the trial, as appears by the affidavit of his physician, L. M., which is submitted here- with. It would be highly prejudicial to the plaintiff to proceed to the trial without the presence of the plaintiff and it would be impossible to prove the case without his testimony. De- ponent is advised by said physician that the plaintiff will not be able to be present at the trial for at least another month from exception. Motions to set aside verdicts and for new trials are usually decided at once, but on some occasions the trial judge postpones the argument until the minutes can be secured and gives the parties an opportunity to be heard at a later time. Even if the argument is to be heard at a later date, the only safe practice is to make the motion at once, although such a motion may be made on any day of the same term. Upon the verdict being rendered the successful party applies to the clerk of the part where the case is actually tried for an extract from his minutes and with this extract he thereupon makes up a judgment which includes the summons and the pleadings and the extract and the judgment itself which constitute the judg- ment roll. In New York County the extract is secured from the clerk at the trial term and taken to the law clerk who thereupon enters the judgment upon the proper papers being presented to him. The judgment may be entered with- out giving notice of taxation of costs to the defeated party and no notice of the entry of the judgment is required after a jury trial. If notice of taxation of costs is not given before entry of judgment notice of re-taxation should be given at once after the entry of the judgment. See chapter on Costs. 614 Bradbury's lawyers' manual Affidavit to Secure Adjournment of Trial this date and that at the present time he is too ill to have his testimony taken by deposition. Sworn to before me, this day of , 19 (Signature and title of officer). George Henry. CHAPTER XXXIII MOTION FOR NEW TRIAL ON NEWLY DISCOVERED EVIDENCE FORMS NO. PAGE NO. PAGE 361. Notice of motion for new trial trial on newly discovered on newly discovered evi- evidence . . 617 dence 615 363. Order setting aside judgment 362. Affidavit on motion for new and granting a new trial on newly discovered evidence 618 FORM NO. 361 Notice of Motion for New Trial on Newly Discovered Evidence ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the case in the above-entitled action duly settled and filed in the office of the Clerk of the County of New York, on the day of , 19 , ' a motion for a new trial on newly discovered evidence is not regulated by any statute or rule of court. The courts themselves have made rules in relation thereto in adjudicated cases and have held that in all such cases a motion for a new trial must be based on a case containing the evidence which was taken on the former trial and on affidavits showing the newly discovered evidence. That is, a party who desires to move for a new trial on newly discovered evidence must first make up and have settled a case in the same manner that it would be made up and settled on an appeal from the judgment entered therein. Then in addi- tion to this, there must be an affidavit or affidavits giving specifically the newly discovered evidence upon which the motion is made. The matter is then brought up at Special Term, and in New York County at Special Term, Part 3, as any other motion. For the form of a case and for the proceedings upon the settle- 615 616 bradbuby's lawyers' manual Notice of Motion for New Trial on Newly Discovered Evidence and on the affidavits of A. B., E. F. and G. H., sworn to the day of , 19 , which are hereunto annexed, and on all the proceedings had in the above-entitled action, a motion will be made at Special Term, Part 3, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , for an order setting aside the judgment entered in the above-entitled action and duly filed and entered in the office of the Clerk of the County of New York on the day of , 19 , and for a new trial therein on the ground that the evidence set forth in the affidavits above cited is newly discovered evidence and would have the effect of changing the result upon the new trial, and for such other, further and different relief as may be proper, with cost's. Dated the day of , 19 . Yours, etc.. To. G. H., E. F., Esq., Attorney for Defendant. Attorney for Plaintiff. ment thereof see the chapter on Appeals, as the proceeding is exactly the same as upon an appeal, except that the time for making the case is not limited as it is upon an appeal. However, the party in making a motion for a new trial on newly discovered evidence must move promptly after the new evidence is dis- covered and there must be no unnecessary delay in either settUng the case or in making the motion after the evidence is discovered. The fact that a judgment has been affirmed on appeal to the Appellate Division and to the Court of Appeals is not a bar to a motion for a new trial on newly dis- covered evidence. The case on which the motion is heard need not be printed but may be in typewritten form. MOTION FOR NEW TRIAL 617 Affidavit on Motion for New Trial on Newly Discovered Evidence FORM NO. 362 Affidavit on Motion for New Trial on Newly Discovered Evidence New York Supreme Court, New York County. A. B, Plaintiff, against C. D., Defendant. State of New York County of New York J C. D., being duly sworn, deposes and says that he is the de- fendant in the above-entitled action ; that this action was tried before Mr. Justice Hendrick and a jury at Trial Term, Part 14, of the New York Supreme Court, on the day of , 19 , and resulted in a verdict being rendered in favor of the plaintiff and against the defendant for the sum of dollars, and thereafter and on the day of , 19 , a judgment was rendered on said ver- dict for the sum of dollars and said judgment was duly filed and entered in the office of the Clerk of the County of New York on the day of , 19 . (If any appeals were taken from the judgment to the Appellate Division, or the Court of Appeals, or both, recite the facts and state when and where the judgments were entered.) That since said time and on or about the day of , 19 , the defendant herein learned for the first time of the evidence which is set forth below and also in the aflidavits of E. F. and G. H., sworn to the day of ,19 , which are hereunto annexed and made a part of this application. (State fully and in detail the new evidence upon which reliance is placed.) 618 Bradbury's lawyers' manual Order Setting Aside Judgment and Granting a New Trial Deponent did not know of such evidence at the time of the trial herein, nor until on or about the day of , 19 , and had no means, by using due diligence, of discover- ing said evidence until the date above mentioned. (State any other facts showing the manner in which the newly discovered evidence came to the knowledge of the deponent.) Wherefore deponent prays that an order may be entered setting aside the judgment hereinbefore specified and that a new trial of the issues in said action may be had and for such other, further and different relief as may be proper, with the costs of this motion. Sworn to before me, this | C. D. day of , 19 . 1 {Signature and title of officer.) FORM NO. 363 Order Setting Aside Judgment and Granting a New Trial on Newly Discovered Evidence At Special Term, Part 3, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D., Defendant. A motion having been regularly made by the defendant above named to set aside a judgment entered in the above-en- titled action in the office of the Clerk of the County of New York on the day of , 19 , and for a new trial, on the ground of newly discovered evidence, and said MOTION FOR NEW TRIAL 619 Order Setting Aside Judgment and Granting a New Trial motion having come on regularly to be heard, now on reading the case duly settled and filed in the office of the Clerk of the County of New York on the day of , 19 , and on reading the judgment roll duly filed and entered in the office of the Clerk of the County of New York, on the day of , 19 , and on reading and filing the notice of motion herein, dated the day of , 19 , and the affidavits of C. D,, E. F. and G. H., sworn to the day of , 19 , with due proof of service of said proposed case and said notice of motion and affidavits on the plaintiff's attorney, and on reading and filing the affidavit of A. B., sworn to the day of , 19 , in opposition thereto, and after hearing L. M., Esq., attorney for the defendant in favor of said motion, and M. 0., Esq., attorney for the plaintiff, in opposition thereto, and due deUberation having been had, it is, on motion of L. M., Esq., attorney for the defendant, Ordered that the judgment in the above-entitled action, entered in the office of the Clerk of the County of New York on the day of , 19 , be and the same hereby is set aside and annulled and a new trial of said action is hereby ordered on the ground of newly discovered evidence, and that the cause be restored to the trial term calendar of this court and set down for trial in accordance with the rules of the court and that the defendant recover of the plaintiff the costs of this motion, to abide the event of the action. Enter, S. G., J. S. C. NO. 364. 365. 366. 367. 368. 369. 370. 371. 372. 373. CHAPTER XXXIV JUDGMENTS ^ FORMS PAGE Statement for judgment by confession 621 Judgment entered by confes- sion 622 Statement and judgment on default under Code Civ. Pro., §420 623 Order for judgment and as- sessment of damages by writ of inquiry on default of defendant 625 Writ of inquiry to the sheriff 627 Demand by defendant for notice of execution or refer- ence or writ of inquiry. . . 628 Notice of execution of writ of inquiry 629 Inquisition on writ of inquiry 630 Judgment after the return of a writ of inquiry, in an ac- tion for personal injuries.,. 631 Order for judgment on de- NO. PAGE fault after service of sum- mons by publication 632 374. Judgment on default where summons has been served on defendant without the State or by pubMcation, pursuant to an order there- for 634 375. Judgment dismissing com- plaint at trial term 376. Judgment for plaintiff after trial before a jury 635 377. Judgment upon report of referee appointed to hear and determine 636 378. Decree after trial at special term 638 379. Decree of interpleader 639 380. Decree; action to enforce re- strictive covenant in deed 641 381. Satisfaction of judgment. . . . 644 '■ For form of judgment in an action of foreclosure of mechanic's lien, where the lien of the plaintiff and certain defendants are sustained, and some of the liens are discharged by giving bonds, from the case of Funda v. Betts, 200 N. Y. 517, see 1 Bradbtjrt's Pl. & Pr. Rep. 123. For form of findings by referee on the foreclosure of a mechanic's lien, where the claims of the plaintiff and several defendants are sustained, and some of the liens have been discharged by giving bonds, from the case of Funda v. Betts, 200 N. Y. 517, see 1 Bradbury's Pl. & Pr. Rep. 109. See also chapters herein on Mortgages; Bill of Sale; Matrimonial Actions; Partition. 620 JUDGMENTS 621 Statement for Judgment by Confession FORM NO. 364 Statement for Judgment by Confession (Code Civ. Pro., §§ 1273-1278) New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. I, Charles Darwin, do hereby confess Judgment in this court in favor of Adam Brown, for the sum of one thousand dollars, and hereby authorize said Adam Brown, his heirs, executors, administrators or assigns to enter judgment therefor against me. This confession of judgment is for a debt or liability justly due (or to become due), arising out of the following facts: {Here must he stated in detail the specific facts out of which the indebtedness arises. It is not sufficient to state merely that it is for money loaned or for goods sold and delivered, or for work, labor and services performed, but the facts should be stated in detail or the judgment is open to attack on motion by subsequent judgment creditors.) ' Or, For the purpose of securing, the plaintiff, Adam Brown, against a contingent hability, the following being a statement of the facts constituting such liabiUty: {Here insert the facts and show that the sum confessed therefor does not exceed the 1 For statements which have been held sufficient see Fuller v. 'Straus, 44 App. Div. 348; 60 Supp. 917; Wood v. Mitchell, 117 N. Y. 439; Mather v. Mather, 38 App. Div. 32; 55 Supp. 973; rev'g 25 Misc. 51; 53 Supp. 999; Cntten v. Vreden- burgh, 151 N. Y. 536; Broisted v. Breslin, 105 N. Y. 682; Harrison v. Gibbons, 71 N. Y. 58; Ely v. Cooke, 28 N. Y. 365. 622 Bradbury's lawyers' manual Judgment Entered by Confession amount of the contingent liability. The facts must be stated with the same precision as specified in the preceding paragraph.) Dated the day of , 19 . Charles Darwlst, Defendant. State of New York County op New York Charles Darwin, being duly sworn, says that he is the de- fendant above named and that the matters of fact set forth in the above statement are true.^ Sworn to before me, this day of , 19 {Signature and title of officer.) Charles Darwin. FORM NO. 365 Judgment Entered by Confession (Code Civ. Pre, § 1275) New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. On fihng the annexed statement made by Charles Darwin and on motion of Al. N., Esq., attorney for the plaintiff, it is Adjudged that Adam Brown, the above-named plaintiff, recover from Charles Darwin, the above-named defendant, the sum of one thousand dollars, together with ' The verification should be in positive terms, not on infonnation and belief, as to such facts as are within the knowledge of the judgment debtor. Ingram v. Roblmu^. 33 N. '\'. 409; Mosfirr v. Heydrick, 45 Barb. 549. JUDGMENTS 623 Statement and Judgment on Default under Code Civ. Pro., § 420 dollars costs ^ and disbursements, amounting in all to dollars, and that the plaintiff have execution therefor. Dated the day of , 19 . James Logan, Clerk. FORM NO. 366 Statement and Judgment on Default ^ under Code Civ. Pro., § 420 New York Supreme Court, New York Coyoitv. Adam Brown, -- JPiaintiff , against Charges Darwin, Defendant. Amount ciaimed in complaint (or in summons) $2,500.00 Interests . . 40.00 Total : , $2,540.00 Costs by statute . $15.00 Service of summons and complaint on de- feadant. . . 1.75 Tffo affidavits, 12 cents each ... .24 f^irvice of summons on three extra defend- J ants ($2 each) 6.00 Clerk's fee on entering judgment 50 Satisfaction piece 25 Sheriff's fees on execution 1.95 25.69 Total $2,565.69 ' On the entry of such a judgment the plaintiff is entitled to costs in the sum of $15, allowed by Code Civ. Pro., §.1275; the Clerk's fees on entering judgment, usuiilly 50 cents; 12 cents for each affidavit; and the Sheriff's fees for receiving and returning one execution. - The manner of entering judgment on default depends on the nature of the cause of action and also the proceedings which have gone before and the par- 624 Bradbury's lawyers' manual Statement and Judgment on Default under Code Civ. Pro., § 420 ^ss: State of New York County of New York E. F., being duly sworn, deposes and says that he is the at- torney for the plaintiff in the above-entitled action. That the disbursements above specified have been made in the said ac- tion or will necessarily be made or incurred therein; that the time of the defendant to appear, answer or demur herein has expired and that said defendant has not appeared or answered or demurred herein {except if the defendant has appeared and defaulted on answering or demurring state the facts, whatever they may be, and show' that the defendant is in default. The affidavit of service of the summons and complaint, or notice, must he presented on the application). Sworn to before me, this | E. F. day of , 19 • J ' {Signature and title of officer.) Judgment entered the day of , 19 . The summons and complaint (the summons with notice) in this action having been personally served on Charles Darwin and {naming the other defendants), the defendants herein on the day of , 19 , and the timg,ef said de- fendants and each thereof to appear, answer or demijT 'lerein having expired, and said defendants not having appeared, answered or demurred herein, except {if any of the defendc^ have appeared and have defaulted in answering, or demu.rr'^k, state the facts). ° ticular point in the proceedings at which the opposite party defaults. For ex- ample, on a claim for liquidated damages, where the summons is served person- ally within the State and the complaint is served with a summons, or in llv absence of a complaint, a notice is endorsed on the summons stating the amount for which judgment will be taken in case of default, the manner of entering judg- ment is to present an affidavit and statement in accordance with the form in tlie text. This statement, with the appropriate affidavits, must show that the sum- mons was served on the defendant at a particular time within the State, that no notice of appearance, demurrer or answer has been served on the plaintiff's attorney and that the time to serve such notice of appearance, demurrer or answer has expired, and that the defendant is in default. Judgment is thereupon entered by the clerk without further proceedings. JUDGMENTS 625 Order for Judgment and Assessment of Damages Now, on motion of E. F., attorney for the plaintiff, it is Adjudged that Adam Brown, the plaintiff, do recover of Charles Darwin, the defendant (and name any other defendants), the sum of dollars, the amount claimed with in- terest, with dollars costs and disbursements, amounting in all to the sum of dollars, and that the plaintiff have execution therefor. Owen Moore, Clerk. FORM NO. 367 Order for Judgment and Assessment of Damages by Writ of Inquiry on Default of Defendant ' At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. It appearing by the affidavits of E. F., G. H. and I. J., sworn to the day of , 19 , that the summons in ' Where the action is one of tort for unliquidated damages and the defendant defaults in pleading, there must still be an application made to the court for judg- ment, and in such a case it does not matter whether the complaint is sen'ed with the summons or not. In such a case where the summons was personally served upon the defendlint within the State and he has made default in appearing, or pleading, and the case is not one where the clerk can enter final judgment, the plaintiff may apply to the court or a judge or justice thereof, out of court, for judgment. Upon the. application he must file, if the default be in appearing, proof of service of the summons; or if the default be in pleading, the proof of service and also if the defendant appeared proof that a copy of the complaint was served upon the defendant's attorney, and in either case proof by affidavit 626 bradbx'ry's lawyers' manual Order for Judgment and Assessment of Damages the above-entitled action was served upon the defendant, C. D., within the State, on the day of , 19 , and that said defendant has not appeared in the action (if the de- fendant has appeared and has made default in pleading, state the facts), and that no copy of an answer or demurrer has been served on the plaintiff's attorney and that the defendant is now in default (and that due notice of this application for judgment has been served on the defendant's attorney). Now, on motion of E. F., attorney for the plaintiff, it is Ordered that the damages to which the plaintiff is entitled, be ascertained by jury and that a writ of inquiry be issued for that purpose and that said damages be assessed at Trial Term, Part II, of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, and that judgment be entered herein in accordance with the verdict of said jury. Or, Ordered, that the damages to which the plaintiff is entitled be ascertained by jury and that a writ of inquiry for that pur- pose be issued to the Sheriff of the County of and that said Sheriff return the inquisition made by him in of the default which entitles the plaintiff to judgment. Upon this application the court may require such proof as it deems necessary of any fact alleged in the complaint and it may require the facts or any of them to be submitted to a jury, by writ of inquiry, and in an action for personal injury or injury to property, the damages must be ascertained by means of a writ of inquiry. In some juris- dictions it has been the practice to issue a writ of inquiry directed to the Sheriff and have a Sheriff's jury assess the damages and upon the return of the inquisi- tion by the Sheriff the judgment would be entered. However, a writ of inquiry may be executed by the court and the practice has grown up in many counties of the State in personal injury cases, of having the writ of inquiry executed at a trial term of the Supreme Court, and after the jury's verdict the plaintiff enters judgment by securing an extract from the minutes, in the same way that he would if there had been a regular trial. On the execution of such a writ, in court, it is necessary for the plaintiff to practically prove his case in the same manner it would be proved if there was opposition. Indeed, the defendant may appear cither personally or by liis attorney' and contest the amount of damages, even though he is in default. JUDGMENTS 627 Writ of Inquiry to the Sheriff this court for its further action (or that final judgment be en- tered by the clerk for the damages ascertained by said inquisi- tion) without further order of the court. Enter, P. A. H., J. S. C. FORM NO. 368 Writ of Inquiry to the Sheriff New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The People of the State of New York: To the Sheriff of the County of New York, Greeting: Whereas, A. B., lately in our Supreme Court brought an action against C. D., in which he claimed damages against said C. D., in the amount of dollars, as stated in his complaint herein, by reason of the matters set forth in said complaint, a copy of which is hereto annexed; and such pro- ceedings were thereupon had in our said Supreme Court, that the said A. B., should recover his damages on account of the said matters; but because it is unknown to our said court what damages the said A. B. has sustained by means of the matters aforesaid; Now, therefore, we command you that by the oath of twelve good and lawful men of your bailiwick, you diUgently inquire what damages the said A. B. has sustained by means of the matters in said complaint contained as aforesaid and that you return the inquisition which you shall thereupon take with all convenient speed under your seal and the seals of those by whose 628 Bradbury's lawyers' manual Demand by Defendant for Notice of Execution or Reference oath you shall take that inquisition to the Clerk of the County of , together with this writ. Witness, Hon. Peter A. Hendrick, one of the Justices of the Supreme Court, at the Courthouse in the County of New York, on the day of , 19 . AUowed: E. S., Peter A. Hendrick, Clerk. Justice. Ely Franklin, Attorney for the Plaintiff. FORM NO. 369 Demand by Defendant for Notice of Execution or Reference or Writ of Inquiry (Code Civ. Pro., § 1219) New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that the defendant, CD., hereby de- mands notice of the execution of any reference or writ of in- quiry which may be granted upon plaintiff's application for a judgment in the above-entitled action. Dated the day of , 19 . To: Yours, etc., E. F., Esq., G. H., Attorney for Plaintiff. Attorney for Defendant. JUDGMENTS 629 Notice of Execution of Writ of Inquiry FORM NO. 370 Notice of Execution of Writ of Inquiry (Code Civ. Pro., § 1219) New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. Please take notice that the damages which have been sustained by the plaintiff by reason of the matters and things stated in the complaint in the above-entitled action will be assessed by a jiu-y before M. N., Sheriff of the County of New York, at No. , Street, in the Borough of Manhattan, City, County and State of New York, on the day of forenoon. Dated the day of To: G. H., Esq., Attorney for Defendant. 19 , at eleven o'clock in the , 19 . Yours, etc., E. F., Attorney for Plaintiff. 630 Bradbury's lawyers' manual Inquisition on Writ of Inquiry FORM NO. 371 Inquisition on Writ of Inquiry (Code Civ. Pro., § 1215) New York Supreme Court, New York County. A. B., Plaintiff, against D. Company, Defendant. An inquisition taken at the office of M. N., Sheriff of the County of , at No. , Street, in the Borough of Manhattan, City and County of New York, on the day of > 19 , before said M. N., Sheriff as aforesaid, by virtue of a writ of the People of the State of New York to the said Sheriff, directed and to this in- quisition annexed, to inquire as to certain matters in the said writ contained and specified by the oaths of (here give the names of all the jurors) twelve good and lawful men of said County, who, upon their oath aforesaid, say that said A. B., in the said writ named, hath sustained damages by reason of the premises in the said writ mentioned amounting in the sum of dollars. In witness whereof the said jurors, as well as I, the Sheriff, have set our hands and seals to this inquisition the day and year first above written. (Here should be added the names and seals of all the jurors and also of the sheriff.) .JUDGMENTS • 631 Judgment After the Return of a Writ of Inquiry FORM NO. 372 Judgment After the Return of a Writ of Inquiry, in an Action for Personal Injuries New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The sununons and complaint in the above-entitled action having been duly personally served on the defendant, CD. above named, within the State of New York, and the said de- fendant having defaulted in appearing, pleading or demurring in the said action, and an order having been heretofore duly made and filed in the office of the Clerk of the County of New York on the day of , 19 , in the above- entitled action, ordering that judgment be rendered in favor of the plaintiff and that a writ of inquiry issue to the Sheriff of the County of New York, to assess the damages, and that upon the coming in of the writ of inquiry judgment should be entered in accordance therewith and said writ of inquiry having been duly executed by M. N., Sheriff of the County of New York, and the inquisition on said writ of inquiry having been duly returned and filed in the office of the Clerk of the County of New York on the day of , 19 , by which it appears that the plaintiff, A. B., is entitled to recover of the defendant, CD., the sum of dollars, as damages in said action, and the costs of the plaintiff having been duly taxed at the sum of dollars, Now, on motion of E. F., attorney for the plaintiff, it is Adjudged that the plaintiff, A. B., recover of the defendant, C. D., the sum of dollars damages, thus assessed, 632 Bradbury's lawyers' manual Order for Judgment on Default After Service of Summons by Publication in addition to the sum of dollars as taxed, making in all the simi of dollars, and that the plaintiff have execution therefor. Dated the day of , 19 . M. N., Chrk. FORM NO. 373 Order for Judgment on Default After Service of Summons by Publication ^ (Code Civ. Pro., § 1216) At Special Term, Part 2, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. It appearing by the affidavits of E. F., sworn to the day of ) 19 , G. H., sworn to the day of ' When the defendant defaults after the summons has been served upon the defendant by publication or without the State, or otherwise than personally within the State, the plaintiff must apply to the court or a judge thereof for judgment. Code Civ. Pro., § 1216. He must file proof that the service is complete and proof by affidavit of the defendant's default. The court must also require proof of the cause of action set forth in the complaint, and, in an action for personal injury, the proof must be secured by means of a writ of inquiry. If the defendant is a nonresident or a foreign corporation the court or judge must require the plain- tiff, or his agent or attorney, to be examined on oath respecting any payments to the plaintiff or to anyone for his use on account of his demand. In such a case the court may require the plaintiff to file an undertaking to abide the order of the court touching the restitution of any estate or effects which may be directed by the judgment to be transferred or delivered or the restitution of any money JUDGMENTS 633 —j^ — - - I Order for Judgment on Default After Service of Summons by Publication , 19 , and I. J., sworn to the day of ,19 , that the summons in the above-entitled action was served on the defendant by publication (personally without the State of New York), on the day of ,19 , and that more than twenty days have elapsed since such service was completed, and the defendant has not appeared, answered or demurred in the said action and that said defendant is now in default and the court having duly taken proof of the cause of action set forth in the complaint, and the plaintiff (his agent or attorney) , having been examined on oath respecting any payments to the plaintiff or to anyone for his use or account on said demand, and it having been determined that the plaintiff is entitled to recover of the de- fendant the sum of dollars, with interest from the day of ; 19 , and proof having been made by the afhdayit of , sworn to the day of , 19 , that a warrant of attachment granted in this action has been levied upon the property of the said defendant, CD., and a description of said property so attached, verified by affidavit, with a statement of the value thereof, according to the inventory having been produced and filed, by which it appears that the value of said property is the sum of dollars, and the court having required the plaintiff to file an undertaking as required by law and pre- scribed by § 1216 of the Code of Civil Procedure in the sum of dollars, and said undertaking having been duly approved and filed on the day of , 19 , that may be collected under or by virtue of the judgment in case the defendant, or his representative, applies and is allowed to defend the action and succeeds in his defense. Code Civ. Pro., § 1216. Also, where the summons is served by publication, or by substituted service, if the defendant is a nonresident or a foreign corporation, there must be proof by affidavit that a warrant of attach- ment was granted in the action and there has been a levy upon property of the defendant and a description of the property so attached, verified by affidavit, with a statement of the value thereof according to the inventory and there must also be an undertaking provided in § 1216, if one has been required. A judgment by default cannot be taken against an infant until twenty days have expired since the appointment of a guardian ad litem for him. Code Civ. Pro., § 1218. 634 bkadbury's lawyers' manual »— Judgment on Default Where Summons has been Served Now, on motion of G. H., attorney for the plaintiff, it is Ordered that judgment be entered in favor of the plaintiff, A. B., against the defendant, C. D., for the sum of dollars, with interest from the day of , 19 , together with the costs of this action, to be taxed by the clerk, and that said judgment be entered by the clerk of the court without further order of the court. Enter, P. A. H., J. S. C. FORM NO. 374 Judgment on Default Where Summons has been Served on De- fendant Without the State or by Publication, Pursuant to an Order Therefor New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. It appearing by the affidavits of E. F. and G. H., sworn to respectively the day of ; 19 , and the day of > 19 , that the summons in the above-entitled action was served on the defendant by pub- lication (or personally without the State), on the day of , 19 . That more than twenty days have elapsed since said service was completed and that the defend- ant has not appeared, answered or demurred in the said action and that the said defendant, C. D., is now in default and the court having taken proof of the cause of action set forth in the complaint and having required the plaintiff (or his agent or attorney) to be examined on oath concerning the payments to the plaintiff or to anyone for his use, on account of his de- JUDGMENTS 635 Judgment Dismissing Complaint at Trial Term mand, and proof having been made by affidavit that a warrant of attachment granted in this action has been levied upon the property of the said defendant and a description of the said property so attached and verified by affidavit, with a state- ment of the value thereof, according to the inventory, having been produced and filed and the plaintiff, in accordance with the direction of the court having duly filed an undertaking as required by law, pursuant to § 1216 of the Code of Civil Pro- cedure, which undertaking has been duly approved and filed. Now, on motion of R. S., attorney for the plaintiff, it is Adjudged that the plaintiff, A. B., recover of the defendant, C. D., the sum of dollars, damages, and the sum of dollars, costs, duly taxed, making together the sum of dollars, and that the plaintiff have execution therefor. Dated the day of , 19 . M. N., Clerk. FORM NO. 375 Judgment Dismissing Complaint at Trial Term New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The above-entitled action having been brought on regularly for trial, at Trial Term, Part 7, of the New York Supreme Court, held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , before Mr. Justice Greenbaum and a jury, and the de- fendant having moved at the close of the plaintiff's case to dismiss the complaint on the ground that the plaintiff had 636 Bradbury's lawyers' manual Judgment for Plaintiff After Trial Before a Jury failed to prove facts to constitute a cause of action (or otherwise state the ground of the motion), and" the said motion having been duly granted, Now, on motion of E. F., attorney for the defendant, it is Adjudged that the above-entitled action be and the same hereby is dismissed and the costs of the defendant having been duly taxed at the sum of dollars, it is further Adjudged, that the defendant, C. D., recover of the plain- tiff, A. B., the sum of dollars, and that the de- fendant have execution therefor. Dated , 19 . L. M., Clerk. FORM NO. 376 Judgment for Plaintiff After Trial Before a Jury New York Supreme Coiirt, New York County. A. B., Plaintiff, against CD., Defendant. The above-entitled action having been duly tried before Mr. Justice Hendrick and a jury, at Part 14, of the New York Supreme Court, held in and for the County of New York, at the County Courthouse therein, on the day of ,19 , and the jury having duly rendered a verdict ia favor of the plaintiff and against the defendant, in the sum of dollars, and the costs of the plaintiff having been duly taxed in the sum of dollars, now on motion of E. F., attorney for the plaintiff, it is Adjudged that the plaintiff, A. B., do recover of the de- fendant, C. D., the sum of dollars, together with the sum of dollars, costs as taxed, making in all JUDGMENTS 637 Judgment upon Report of Referee Appointed to Hear and Determine the sum of dollars, and that the plaintiff have execution therefor. Dated the day of , 19 . M. L., Clerk. FORM NO. 377 Judgment upon Report of Referee Appointed to Hear and Determine New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Upon the report of I. J., Referee duly appointed in the above- entitled action, dated the day of , 19 , and duly filed in the office of the Clerk of the County of New York, on the day of , 19 , and on motion of E. F., attorney for the plaintiff, it is Adjudged that the plaintiff, A. B., recover of the defendant, CD., the sum of dollars damages and the sum of dollars costs, as duly taxed, in all amounting to the sum of dollars and that the plaintiff have execu- tion therefor. Dated the day of , 19 . M. N., Clerk. 638 bradbtjry's lawyers' manual Decree after Trial at Special Term FORM NO. 378 Decree after Trial at Special Term At Special Term, Part III, of the New York Supreme Court held in and for the County of New York, at the County Court- house therein on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D. and M. L., Defendants. The above-entitled action having been duly tried before Mr. Justice Greenbaum, at Special Term, Part III, of the New York Supreme Court, on the day of , 19 , and the proofs on the part of the plaintiff and the de- fendant having been duly submitted and heard, and the plain- tiff having appeared by E. F., his attorney, and the defendant having appeared by G. H., his attorney, and the court having duly made findings of fact and conclusions of law, dated the day of , 19 , Now, on said findings of fact and conclusions of law and on motion of E. F., attorney for the plaintiff, it is Ordered, adjudged and decreed that the deed of con- veyance executed by the defendant, C. D., to the defendant, M. L., dated the day of , 19 , and recorded {give facts as to recording) of the premises mentioned and described in the complaint, bearing date the day of , in , be and the same hereby is declared fraudulent, null and void and it is adjudged that the same be set aside and discharged of record and that the said defendants execute, acknowledge and deliver to M. N., the receiver duly appointed in this action a conveyance and quit claim of said JUDGMENTS 639 Decree of Interpleader premises, which are described in said complaint in this action, as follows : {Insert description) . It is further ordered, adjudged and decreed that the plaintiff, A. B., recover of the defendant, C. D., the sum of dollars, costs in this action, which said sum is hereby awarded and that the plaintiff have execution therefor. It is ruRTHER ordered, adjudged and decreed that either party to this action may make further application at the foot of this decree for such relief as may be proper within the findings and decree herein made. Enter, S. G., J. s. c. FORM NO. 379 Decree of Interpleader At Special Term, Part III, of the New York Supreme Court held in and for the Coimty of New York at the County Court- house therein on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D., and E. F., Defendants. This action having been brought by the plaintiff, against the above-named defendants, C. D. and E. F., to obtain a judgment that the defendants interplead and try the questions between them as to whom a certain sum of dollars, held by the plaintiff and mentioned in the complaint, belongs, and directing payment into court of the said sum to await the determination as to the rights of the said defendants thereto, and an injunction to restrain the defendants from proceeding 640 Bradbury's lawyers' manual Decree of Interpleader to collect the same from the plaintiff during the pendency of this action and a perpetual injunction restraining the defend-, ants from collecting the same, or any part thereof, from this plaintiff, with the costs to this plaintiff, and issue having been joined therein and said issue having been brought to trial at Special Term, Part 3, thereof, held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , before Hon. Samuel Greenbaum, Justice, and findings of fact and conclusions of law having been duly made by the court, whereby he finds and decides that the plaintiff is entitled to judgment for the relief demanded in said complaint, with the costs of this action, to be paid out of the funds so deposited with the court and said costs having been duly taxed at the sum of dollars, Now, on motion of G. H., attorney for the plaintiff, it is hereby Adjudged and decreed that the defendants, E. F. and G. H., interplead in this court of and concerning their respec- tive claims to the sum of dollars, mentioned in the complaint; that the payment of said sum by the plaintiff into court be and the same hereby is ratified and confirmed and that the defendants, E. F. and G. H., be and they are hereby perpetually enjoined and restrained from collecting or attempting to collect the sum or any part thereof from this plaintiff, A. B. It is exjrther ordered, adjudged and decreed, that the plaintiff recover the sum of dollars, his costs of this action, to be paid to the plaintiff out of the said fund of dollars so deposited by him with the coiu"t, such payment to be made by the Treasurer of the County of on presentation of a certified copy of this judgment, with a receipt of plaintiff's attorney for the same. Enter, S. G., J. S. C. JUDGMENTS 641 Decree; Action to Enforce Restrictive Covenant in Deed FORM NO. 380 Decree ; Action to Enforce Restrictive Covenant in Deed ' At a Special Term of the Supreme Court of the State of New York, held at the County Courthouse, in the County of Kings, on the 11th day of January, 1899. Present: Hon. Samuel T. Maddox, Justice. {Same Title as Complaint) The issues in this action having been regularly brought on for trial at a Special Term of this Court for the trial of issues on the 30th day of November, 1898, and the plaintiff appearing ' From Zipp v. Barker, 40 App. Div. 1; 57 Supp. 569; aff'd without opinion 166 N. Y. 621. The deed which contained the restrictive covenant involved in the case of Zipp V. Barker, supra, was a voluntary partition of various pieces of property and the restrictive covenant which was enforced provided as follows: "And the said parties to these presents for themselves respectively and their several and respective heirs, executors and administrators and the said Samuel Augustus Willoughby, also for his said wife Margaretta and her heirs, executors and administrators, but neither of the said parties for or on behalf of the other party or either of them do hereby mdtually covenant and agree to and with each other and to and with the heirs and assigns of each other respectively that no dweUing house, store house or other building or structure of any kind or description what- soever (excepting fences) shall at any time or times hereafter be erected on any lot of ground fronting on or otherwise adjoining Debevoise place, Bond street, northwardly of Schermerhorn street or Hanover place (as the same are laid down and designated on the aforesaid map) within the several distances hereinafter specified, from the lines or sides of said places and street respectively, that is to say — with regard to Debevoise place within fifteen feet; with regard to Bond Street (northwardly of Schermerhorn street) seven feet and six inches, and with regard to Hanover place ten feet, but on the contrary thereof that every building or structure of whatever kind or description which may be erected or placed on those parts of the said lots or grounds respectively which front upon or otherwise adjoin the said places and street respectively northwardly of Schermerhorn street (excepting fences) shall be erected or placed on the following Unes, that is to say, in the case of Debevoise place on lines uniformly distant on each side forty feet from the centre of said place, and in the case of Bond Street northwardly of Schermerhorn street on lines uniformly distant (on each side) thirty-two feet and six inches from the centre of said street and in the case of Hanover place on lines 642 Bradbury's lawyers' manual Decree; Action to Enforce Restrictive Covenant in Deed by Hugo Hirsh, her counsel, and the defendants appearing by Josiah T. Marean, their attorney, and the issues having been tried before, the Court without a jury, and the court having made a decision which entitles the plaintiff to this judgment, uniformly distant on each side thirty-three feet and nine inches from the centre of said place leaving eighty feet and no more between the hnes of the buildings fronting upon or otherwise adjoining the opposite side of Debevoise place, sixty- five feet (and no more) between the lines of the buildings fronting upon or other- wise adjoining the opposite side cf Bond Street northwardly of Schermerhom Street, and sixty-seven feet and six inches (and no more) between the hnes of the buildings fronting upon or otherwise adjoining the opposite side of Hanover place — but without any restriction upon the right to erect and maintain fences or other ornamental enclosure along the line or lines or sides of said places and streets respectively as such lines are respectively laid down and designated on the said map, the intent and meaning in this respect of these presents and of the several and respective parties thereto being on the one hand to ensure an open space of the several widths above mentioned between the lines of the buildings fronting on or adjoining the said' streets and spaces respectively and the ob- servance of uniformity in the location of such lines, and on the other to leave the several owners and proprietors for the time being of the said lots and premises respectively at fuU liberty to enclose and improve as court yards or ornamental grounds the several spaces between the fronts of such buildings and the lines of the said street and places respectively as laid down and designated on the said map, and also that (subject to the public easement above mentioned in regard to the several streets, places and alleys aforesaid and subject to the above covenant in regard to the location of buildings fronting on or otherwise adjoining the street and places respectively mentioned in said covenant) each of the said parties to these presents and the respective representatives of each of them, that is to say, the said Anna Prince and her heirs and assigns, the said Susan Lawrence and her heirs and assigns, and the said Samuel Augustus Willoughby and Margaretta, his wife, and the heirs and assigns of the said Margaretta, shall and may hence- forth and forever well and peacefully have, hold, use, occupy, possess, and enjoy all and singular the said land and premises appropriated and set apart as above set forth for the separate use and enjoyment of such parties respectively and hereby released and assigned and confirmed to them respectively, as above WTit- ten, free and clear and discharged of and from all their estates, rights, titles, in- terests, charges and encumbrances whatsoever had, made, caused or suffered by the said parties heretofore or any or either of them, their or either of their heira or assigns, and without any lot, hindrance, stay, disturbance or interruption by them, the said parties, or either of them, their or either of their heirs or assigns, or by any person or persons lawfully claiming or to claim by, from or under them or any of therti. And also that they, the said parties hereto or any or either of them have not done or suffered any act, matter or thing whereby the said lands and premises hereinbefore mentioned or any part or parcel therepf are, is or can be in any way prejudiced, impaired, encumbered or affected in title, charge, cstute or otherwise howsoever." JUDGMENTS 643 Decree: Action to Enforce Restrictive Covenant in Deed Now, on motion of Hirsh & Rasquin, attorneys for the plain- tiff, it is Orpbred, adjudged and decreed that the defendants Frances E. Barker, as executrix of and trustee of and under -the last will and testament of Charles Barker, deceased, John R. Weir and Frederick Weir, and their and each of their agents, attorneys, servants, successors, employees or assigns, and each and any of them be, and they hereby are, perpetually enjoined, restrained and forbidden from erecting, building, finishing, continuing, maintaining or permitting the continuance or maintenance of any building, structure or erection of any kind or description whatsoever upon any part of the strip of groimd fifteen feet in width reserved as a court yard which adjoins the property owned by the defendants Barker and leased by the defendants Weir upon the easterly side thereof upon Elm place, and from diverting said strip of land or any part thereof in any manner or by any means whatsoever from the purpose of a court yard, which property said strip of land adjoins and is adjacent to upon the easterly side thereof and is bounded and described as follows: All that certain lot of ground, with the building thereon, situate in the city (now borough) of Brook- lyn, and bounded and containing as follows: Beginning at the southwesterly corner of Fulton street and Elm place, running thence southwesterly along the westerly side of Elm place seventy-two (72) feet and seven (7) inches; thence north- westerly and parallel with Livingston street twenty (20) feet; thence northeasterly and parallel withEhn place to and through the centre of a party wall seventy-two (72) feet nine and one-half (93^) inches, more or less, to Fulton street; and thence northeasterly along said Fulton street twenty (20) feet to the place of beginning. And it is further ordered, adjudged and decreed that the plaintiff, Rosa Zipp, as sole surviving executrix of and trustee under the last will and testament of George Zipp, deceased, recover of the defendants Frances E. Barker as surviving executrix of and trustee under the last will and testament of Charles Barker, deceased, John R. Weir and Frederick Weir, 644 Bradbury's lawyers' manual Satisfaction of Judgment the sum of two hundred and sixty-five and 69/100 dollars, her costs, as taxed by the Clerk of this Court. Enter, S. T. M., William P. Wuest, Granted Jan. 11, 1899, CUrk. William P. Wuest, Clerk. FORM NO. 381 Satisfaction of Judgment (Code Civ. Pro., § 1260) New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. -« Satisfaction of a judgment of this court entered in the above- entitled action in favor of Adam Brown, plaintiff, against Charles Darwin, defendant, for the sum of dollars, and cents, is hereby acknowledged. Judgment en- tered in the judgment book of the Clerk of the County of New York on the day of , 19 , on which day the judgment roll was thereupon filed and said judgment dock- eted in said County Clerk's office. Dated the day of , 19 . Adam Brown, Plaintiff. Or, Ely Franklin, Attorney for Plaintiff.^ ' Satisfaction may be executed by the attorney if made \yithin two years after the judgment is entered. Code Civ. Pro., § 1260. JUDGMENTS 645 Satisfaction of Judgment State of New York County of New York ^^' On this day of , 19 , before me per- sonally appeared Adam Brown, to me known and known to me to be the person described in and who executed the fore- going satisfaction of judgment and he acknowledged to me that he executed the same. (Signature and title of offl,cer.) Or State of New York County op New York On this day of , 19 , personally ap- peared before me Ely Franklin, to me known and known to me to be the person described in and who executed the foregoing satisfaction of judgment and he acknowledged to me that he executed the same as the attorney for said Adam Brown. (Signature and title of officer.) If a firm of attorneys represent the judgment creditor and the satisfaction is executed by the attorneys it should be signed as follows: Jones & Brown, Attorneys for Plaintiff. By John Jones. In such event the acknowledgment would be in the following form: State of New York County of New York On this day of , 19 , personally ap- peared before me John Jones, personally known to me and to me known to be a member of the firm of Jones & Brown, and to me known to be the person described in and who executed the foregoing satisfaction of judgment in the firm name of Jones and Brown, and he acknowledged to me that he executed the same as the act and deed of said firm of Jones & Brown, for the uses and purposes therein mentioned. (Signature and title of officer.) CHAPTER XXXV COSTS AND SECURITY THEREFOR FORMS NO. PAGE NO. PAGE 382. Table of amounts allowed as 386. Affidavit on motion to retax costs 646 costs 65.5 383. Bill of costs in Surrogate's 387. Affidavit on motion for se- Court 651 curity for costs 656 384. Objections to bill of costs, 388. Order requiring security for presented on taxation be- costs 658 fore the clerk 653 389. Undertaking for costs 659 385. Notice of motion for retaxa- tion of costs 654 FORM NO. 382 Tables of Amounts Allowed as Costs Before notice of trial: To the plaintiff in an action, specified in §420, $15; iii every other action, $25. Code Civ. Pro., §3251. To the defendant, ^ $10. Code Civ. Pre, §3251, subd. 2. ' Separate bill to several dependants. Where several defendants, although answering separately, were represented by the same attorneys for more than four years, and when the case was assigned for trial, there was a substitution of attor- neys for one defendant, it was held that an order should not be made in the exer- cise of the discretion of the court, granting to the defendants separate bills of costs upon the complaint being dismissed. Howell v. Robin, 2 Bradbury's Pl. & Pb. Rep. 343. Where two defendants interpose separate demurrers to a complaint through the same attorney they are entitled to only one bill of costs on sustaining the demurrer. Hurly v. Swasey, 2 Bradbury's Pl. & Pr. Rep. 611. Where separate bills of costs were allowed by the trial judge and upon appeal the judgment was affirmed, and it was ordered that "the respondents recover of the appellant the costs of this appeal" it was held on a motion to retax the costs where the clerk had allowed a full bill of costs on the appeal to each of the de- fendants, that the appellant be permitted to apply to the Appellate Division for a modification or construction of the order before the costs were taxed. Bowman v. Seaman, 2 Bradbury's Pl. & Pr. Rep. 339. 646 COSTS AND SECXJIIITY THEREFOR 647 Tables of Amounts Allowed as Costs For each additional defendant served with a summons, not exceeding ten, |2, and for each necessary defendant, in excess of ten, served with the sunnnons, $1 each. Code Civ. Pro., § 3251. These amounts are as costs and not as disbursements, and are allowed even though the defendant appears. Fein- blatt V. Unterherg, 3 Bradbury's Pl. & Pr. Rep. 408. For procuring the appointment of a guardian ad litem for one or more infant defendants, $10. Code Civ. Pro., § 3251. For procuring an order directing the service of the summons by publication, or personally without the State, on one or more defendants, $10. Code Civ. Pro., § 3251. For procuring an injunction order or order of arrest 110. Code Civ. Pro., § 3251. For all proceedings, after notice of trial to either party, $15. Code Civ. Pro., § 3251. For taking the deposition of a witness or a party, as pre- scribed in Code Civ. Pro., §§ 870, 871 and 893, $10. Code Civ. Pro., § 3251. For drawing interrogatories to be annexed to a Commission, or to letters rogatory, $10. Code Civ. Pro., § 3251. For the trial of an issue of law, $20. Code Civ. Pro., § 3251. For the trial of an issue of fact or the assessment of damages, pursuant to Code Civ. Pro., § 194, $30, and where the trial necessarily occupies more than two days, $10 in addition. Code Civ. Pro., § 3251 ; also the interest on the verdict. For making and serving the case on appeal, $20, and when the case necessarily contains more than fifty folios, $10 in addition thereto. Code Civ. Pro., § 3251. For making and serving amendments to a case, $20. Code Civ. Pro., § 3251. Upon a motion for a new trial upon a case, or application for a judgment for a special verdict the same sums as upon an ap- peal; that is, before argument, $20, and for argument, $40. Code Civ. Pro., § 3251, subds. 3 and 4. Upon a motion or upon a reference specified in § 3236 to each party to whom costs are awarded a sum to be fixed by the 648 Bradbury's lawyers' manual Tables of Amounts Allowed as Costs court, not exceeding 110 in addition to disbursements and referee's fees. Code Civ. Pro., § 3251. New trial after appeal, pursuant to Code Civ. Pro., § 194, or an assessment of damages piirsuant to the same section, for all proceedings after granting of and before the new trial or assessment, $25. Code Civ. Pro., § 3251. Term fees, $10 for each term the case is necessarily on the calendar, excluding the term at which it is tried or otherwise finally disposed of, but not exceeding five terms. Code Civ. Pro., § 3251. The same amount is allowed for the time the case is necessarily on the calendar of the Appellate Division. Upon appeal to the Appellate Division from a judgment of the Supreme Court before argument, $20, for argument, $40. Code Civ. Pro., § 3251, subd. 4. On appeal to the Court of Appeals before argument, $30, for argument, $60; also in the Court of Appeals, term fees, $10 for each term the case is necessarily on the calendar ex- cluding the term at which it is argued, or otherwise finally disposed of, but not exceeding ten terms. Code Civ. Pro., § 3251. The Court of Appeals may, in its discretion, grant an extra allowance of damages by way of costs for delay, not exceeding ten per centum of the amount of the judgment. Code Civ. Pro., §3251. An additional allowance is permitted in an action to fore- close a mortgage, to partition real property, to procure an ad- judication to compel a determination as to the title to real prop- erty, or where an attachment has been issued in this action, of the following sums, based on the amount found to be due, or the value of the property. Upon a sum not exceeding $200, 10 %. Upon an additional sum, not exceeding $400, 5%. Upon an additional sum not exceeding $1,000, 2%. If the action is settled before judgment the plaintiff is en- titled to a percentage upon the amount paid or secured upon the same at one-half the above rates. Code Civ. Pro., § 3252. A fiirther additional allowance may be made in an action to COSTS AND SECURITY THEREFOR 649 Tables of Amounts Allowed as Costs foreclose a mortgage of a sum not exceeding 2}^% upon the sum due or claimed to be due upon the mortgage, limiting, however, the additional allowance to $200. Code Civ. Pro., § 3253. And such additional allowance may be made where a defense has been interposed in an action for the partition of real property, not exceeding 5% upon the same recovery or claim, or the value of the subject-matter involved. Code Civ. Pro., § 3253. On all the sums awarded to the plaintiff, as prescribed in the last sentence of § 3251 and in § 3252 and the second subdivision of § 3253, cannot exceed $2,000 to all the parties on one side of the litigation. Code Civ. Pro., § 3254. Upon adjournment of the trial in the discretion of the court, $10 in witness fees, except in the City Court, not exceeding $5 in witness fees. Code Civ. Pro., § 3255. Disbursements allowed: Reasonable compensation of com- missioners taking deposition. Code Civ. Pro., § 3256. Legal fees for publication, where publication is directed pur- suant to law. Code Civ. Pro., § 3256. Legal fees paid for a certified copy of a deposition or other paper, recorded or filed in any public office necessarily used or obtained for use on the trial. Code Civ. Pro., § 3256. Copies of opinion and charges of judges. Code Civ. Pro., § 3256. The reasonable expenses qf printing the papers for a hearing when required by a rule of the court. Code Civ. Pro., § 3256. Charges for the expenses of entering and docketing the judg- ment. Code Civ. Pro., § 3256. Sheriff's fees for returning and entering an execution. Code Civ. Pro., § 3256. Searches affecting property when made and certified by title insurance, abstract for searching company organized and doing business under the laws of the State, same amount as for official searches. Code Civ. Pro., § 3256. Calendar fee in New York County, usually $3; in other counties varying amount. Clerk's fees on the trial, usually $1. 650 BRADBURY'S LAWYERS' MANUAL Tables of Amounts Allowed as Costs Jury fee in New York County, $3. Clerk's fee on filing notice of lis pendens, 10 cents a folio. Code Civ. Pro., § 3304. Affidavits 12 cents each and acknowledgments 25 cents each. Clerk's fee on entering judgment, usually, 50 cents. Code Civ. Pro., §3301. Stenographer's minutes for use either of the court, if ordered by the court, or making case on appeal. Code Civ. Pro., § 3256. Printing case on appeal. Code Civ. Pro., § 3256. Printing points on appeal. Code Civ. Pro., § 3256. Filing return to Court of Appeals, 50 cents. For remittitur from Court of Appeals, 10 cents a folio. Code Civ. Pro., § 3300. Certifying printed record on appeal, 1 cent a folio. Code Civ. Pro., § 3301, subd. 5. Witness fees, 50 cents for each day's attendance and 8 cents a mile for distance traveled between place of residence and place of attendance one way, if distance is three miles or more. Mileage only allowed once, no matter how many days' attendance are required. COSTS AND SECURITY THEREFOR 651 Bill of Costs in Surrogate's Court FORM NO. 383 Bill of Costs in Surrogate's Court (Code Civ. Pro., §§ 2643 et seq. and Rule 20 of the New York ' Surrogate's Rules) Surrogate's Court, County of New York. In the Matter of the Judicial Settlement of the Account of Adam Brown as Executor under the Last Will and Testament of William Brown, Deceased. COSTS 1 DISBURSEMENTS Costs pursuant to Sec- For Serving Citation on tion 2646 of the j parties. Code of Civil 1 For Pubhcation Cita- Procedure ;$ Contest 70. Law Journal, Code No contest 25. Civ. Proc, § 2743. Days occupied in For Pubhcation Citation, the trial or hear- " Referee's Fees ing, less one for " Appraiser's Fees . T . each day 10. ' " Stenographer's Feef Motions for New Trial " Affidavits and Ac-, if denied $1.5; if knowledgments,, granted $25 Code Civ. Proc, Allowance to Accounting § 2743 party under Sec- For Postage tion 2746, Code of " Certified Copies. ... Civil Procedure, ' " Certified Copy De- VIZ.: cree ! Days necessarily oc- For Satisfactions of De- cupied in prepar- ing account and cree For Certificate of Fihng entering and set- Satisfactions tling decree $10,\ For necessary Copies each day of Papers, as follows : Total Costs and Al- For Attendance of Wit- lowances $ nesses Disbursements Total ' $ 1 i ^ Of course, Kule 20 of the Surrogate's Court of New York County is not binding 652 Bradbury's lawyers' manual Bill of Costs in Surrogate's Court State of New York County of New York Ely Franklin, being duly sworn, says, that he is the attorney and counsel for Adam Brown, the Executor in the above- entitled proceeding; that the foregoing disbursements have been actually made or will be necessarily incurred therein, by or in behalf of the said Executor. That such disbursements are correctly stated, and are for reasonable and necessary expenses in this proceeding. Deponent further says that the time stated in the foregoing bill of costs as having been occupied as therein specified was actually, substantially and necessarily so occupied and em- ployed in this matter by deponent, and that the time occupied on each day in the rendition of the services aforesaid, and their nature and extent in detail, are, as hereinaafter set forth, opposite the date of the rendition of the services and under the appro- priate head of particular class of services rendered in the above- entitled proceeding. That no compensation has been paid or given out of the funds of the estate of the said deceased for or on account of the serAdces specified herein. (Here should be an itemized statement of the services in accord- ance with the above recital.) Ely Franklin. Sworn to before me, this day of , 19 (Signature and title of officer.) on the Surrogates' Courts in other counties of the State. This rule reads as fol- lows: "Costs and Ah.owances. Whenever a party to a decree shall deem himself entitled to costs the matter will be considered and determined by the surrogate on two days' notice of adjustment. With said notice shall be served a statement showing the items of costs and disbursements to which the party may deem him- self entitled, which disbursements shall be duly verified both as to their amount and necessity. The disbursements for referee's and stenographer's fees must be sustained by affidavits or detailed proof. "At the same time and on like notice the surrogate will pass upon any applica- tion for an additional allowance. Such application must be accompanied by an affidavit setting forth the number of days necessarily occupied in the hearing or trial, in preparing the account for settlement and in the preparation for the trial. COSTS AND SECURITY THEREFOR 653 Objections to Bill of Costs, Presented on Taxation Before the Clerk FORM NO. 384 Objections to Bill of Costs, Presented on Taxation before the Clerk New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State op New York County or New York G. H., being duly sworn, deposes and says that he is the attorney for the defendant above named and he objects to the following items in the bill of costs of the plaintiff which is noticed for settlement on the day of 19 , at ten o'clock in the forenoon: the time occupied on each day in the rendition of the services, their nature and extent in detail, including the services necessarily rendered or to be rendered in the drawing, entering or executing of the decree. In case such trial shall have been had before a referee the time necessarily occupied in such trial before him may be shown by a certificate of such referee." ' Ordinarily in courts of record costs may be taxed on appHcation to the clerk, without notice, and then entered in the judgment. If this is done, however, an immediate notice of retaxation before the clerk should usually be given. If this is not done by the party who taxed the costs, and the opponent gives notice of re- taxation before the clerk and on such re-taxation the amount is reduced, costs of the motion must be awarded against the party who first taxed the costs. There is no other penalty, however, for failure to give notice of re-taxation. There is an important distinction between a re-taxation before the clerk on motion b}' the party who taxed the costs originally and a retaxation, on motion, before the court. Thus the party who originally taxed his costs before the clerk, without giving notice to his opponent, merely gives notice of retaxation before the clerk so the party against whom the costs are taxed may appear, if he so desires, and object to any of the items allowed by the clerk in the first instance. Then after the clerk has made the taxation, either on an original notice or on notice of retaxation, either party who is dissatisfied with the taxation made by the clerk may make a motion at special term of the court to retax the costs, upon which motion the action of the clerk is reviewed by the court. 654 Notice of Motion for Retaxation of Costs {Here state in detail the items as to which the objections are made, for if it becomes necessary to move for a retaxation of the costs as taxed by the clerk, the only paper considered by the judge will be the affidavit which is submitted at the time of the taxation. The ob- jection should be in the form of an affidavit, as it is sometimes nec- essary to state facts in opposition to particular items and therefore it is unsafe to serve merely a notice of objection without verifying it. This affidavit should be marked by the clerk as having been read on the taxation so it may be used on the subsequent motion before the Court if necessary.) Sworn to before me, this | G. H. day of , 19 . J (Signature and title vf officer.) FORM NO. 385 Notice of Motion for Retaxation of Costs New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Please take notice that on the annexed affidavits of G. H., sworn to the day of , 19 , and the day of , 19 , a motion will be made 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 Courthouse therein on the day of , 19 , for a retaxation of the costs in the above-entitled action made by the clerk of the court on the day of , 19 , on the ground that the following items were improperly allowed for the reasons stated: (here should be stated the items to which objection is made and a general statement of the reason COSTS AND SECURITY THEREFOR 655 Affidavit on Motion to Retax Costs for the objections), and for such other, further and different reUef as may be proper, with costs of this motion. Dated the day of- , 19 . Yours, etc., G. H., Attorney for Defendant. To: E. F., Esq., Attorney for Plaintiff. FORM NO. 386 Affidavit on Motion to Retax Costs (Title Same as Preceding Form) State of New York County of New York G. H., being duly sworn, says that he is the attorney for the defendant in the above-entitled action. That the costs herein were taxed by the clerk of this court on the day of ,19 , at the sum of dollars, and on such taxation deponent appeared in behalf of the defendant therein, and objected to the items set forth in an affidavit sworn to the day of , 19 , and made by deponent, which affidavit is hereunto annexed ' and made a part of this application and said application was read on said taxation by the clerk. On said taxation the said clerk allowed all the items to which deponent made objection in accordance with said affidavit hereunto annexed. (Or if the clerk allowed a portion of the items as to which objec- tion was made, state in detail the action of the clerk in relation thereto.) ' See Form No. 384 preceding. It is essential that such an affidavit should be presented on the taxation before the clerk as the court on the motion for retaxa- tion will consider only the objections thus taken, 656 Bradbury's lawyers' manual Affidavit on Motion for Security for Costs Deponent therefore prays that an order may be made allow- ing a retaxation by eliminating from the bill of costs the items specified in said affidavit. Sworn to before me, this day of > 19 . (Signature and title of officer.) ss. G. H. FORM NO. 387 Affidavit on Motion for Security for Costs ^ (Code Civ. Pro., §§ 3268-3279) New York Supreme Court: New York County. A. B., Plaintiff, against C. D., Defendant. State of New York County of New York CD., being duly sworn, deposes and says that he is the defendant in the above-entitled action. That the above-en- ' Security for costs may also be required where the plaintiff is imprisoned under an execution for a crime, or is the official assignee of a person so imprisoned, the official assignee or trustee of a debtor, or an assignee in bankruptcy, where the action is brought upon a cause of action arising before the assignment, the ap- pointment of a trustee, or the adjudication in bankruptcy. Code Civ. Pro., § 3268. In certain local courts security for costs may be required if the action is brought by one who resides without the territorial jurisdiction of the court. Code Civ. Pro., § 3268, subd. 1. Security may also be required where after the action is brought the plaintiff ceases to be a resident of the State or to reside in the territorial jurisdiction of a local court, or is adjudicated a bankrupt, or is sentenced to State's Prison for a term not less than for life. Code Civ. Pro., § 3269. Security may also be required in an action brought by or against an e.xecutor or an administrator in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or be sued, or by an official assignee, the assignee of a receiver, or the committee of a person judicially COSTS AND SECURITY THEREFOR 657 Affidavit on Motion for Security for Costs titled action was begun against the defendant by the service of a summons on the defendant on the day of 19 , and the defendant has not yet appeared, answe'red or demurred in said action. Deponent further says that the plaintiff herein (if more than one plaintiff, all the plaintiffs) are nonresidents of the State of New York and that he resides in the State of Pennsylvania to the knowledge of deponent. Deponent is well acquainted with the said plaintiff, A. B., and said A. B. has frequently told deponent that he, the said A. B., resided at No. , Street in the City of Philadelphia, in the State of Pennsylvania. Or, The plaintiff above named, the A. B. Company, is a foreign corporation organized under the laws of the State of Pennsyl- vania, as appears by the allegation in the complaint herein, which is herewith submitted on this motion. (7/ there are two or more plaintiffs it must appear that as to all of them the plaintiff is entitled to security for costs.) Deponent therefore prays that an order may be made re- quiring that the plaintiff give security for costs, pursuant to the statutes and rules in such case made and provided. No previous application for such an order has been made. Sworn to before me, this day of , 19 . {Signature and title of officer.) C. D. declared to be incompetent to manage his affairs. Code Civ. Pro., § 3271. In the last mentioned case the application is addressed to the discretion of the court. If the application is made under § 3268 before the defendant has~ pleaded, the right to security is absolute, but if the motion is not made until after the defendant has pleaded; then the motion is addressed to the discretion of the court. If the right to security arises by reason of a change which takes place after the defendant has pleaded, under § 3269, the right to security is absolute. 658 Bradbury's lawyers' manual 1 Order Requiring Security for Costs FORM NO. 388 Order Requiring Security for Costs ^ New York Supreme Court, New York County. A. B., ■ Plaintiff, against C. D., Defendant. It appearing by the annexed affidavit of C. D., sworn to the day of ,19 (and the verified complaint, verified the day of , 19 ) ; that the sum- mons and complaint have been served on the defendant above named, but that the defendant has not yet appeared, answered or demurred in said action, and that the plaintiff (all the plain- tiffs) is a nonresident of the State of New York (a foreign corporation organized and existing under and by virtue of the laws of the State of Pennsylvania) and that no security for costs has been given herein. Now, on motion of E. F., attorney for the defendant, it is hereby Ordered that the plaintiff, within ten days from the service on the plaintiff's attorney of a copy of this order, with notice of entry, either pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any awarded against the plaintiff, or at the election of the plain- tiff, that he file with the clerk an undertaking in like amount, conditioned upon the payment to the defendant of all costs, not exceeding two hundred and fifty (1250) dollars, which may ' When an order requiring a nonresident plaintiff to file security for costs is not complied with, an order is proper charging the costs against the plaintiff's attorney personally where the affidavit on which the order for seouritj' was made states the nonresidence of the plaintiff positively. Chute v. Karnes, 3 Bradbuey's Pl. & Pr. Rep. 580. COSTS AND SECURITY THEREFOR 659 Undertaking for Costs be awarded against him in this action and serve a written no- tice of the payment or of the fiHng of such undertaking upon the defendant's attorney, and all proceedings on the part of the plaintiff are hereby stayed, except to review or vacate this order, until the payment or filing and notice thereof as herein provided and after the undertaking is given until the allowance thereof. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. FORM NO. 389 Undertaking for Costs ^ (Code Civ. Pro., § 3273) (Title Same as Complaint) Whereas an order was made by Hon. Samuel Greenbaum, Justice of the Supreme Court, on the day of , 19 , requiring the plaintiff above named to give secu- rity for costs in the above-entitled action. Now, WE, G. H., Merchant, residing at No. , Street, Borough of Manhattan, City, County and State of New York, and I. J., Banker, residing at No. , Street, Borough of Manhattan, City, County and State of New York, do jointly and severally undertake that we will pay, upon demand, to the defendant, C. D., above named, all costs which may be awarded to him in the above-entitled action, not exceeding two hundred and fifty dollars. Dated the day of , 19 . G. H. I. J. » If the defendant excepts to the sureties in the undertaking given for costs the sureties must justify and the same proceedings are had thereon as are had when exceptions are filed to sureties on a bail bond, the proceedings as to which are pointed out in the chapter on Aerest. 660 Bradbury's lawyers' manual Undertaking for Costs State of New York 1 County of New York J G. H., being duly sworn, deposes and says that he is a house- holder (freeholder) within the State of New York and that he is worth double the amount of the foregoing 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 before me, this ] G. H. day of , 19 . j (Signature and title of officer.) State of New York 1 I CO • County of New York j I. J., being duly sworn, deposes and says that he is a house- holder (freeholder) within the State of New York and that he is worth double the amount of the foregoing 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 before me, this 1 I. J. day of , 19 . J (Signature and title of officer.) State of New York ] County of New York J On this day of , 19 , before me per- sonally came G. H. and I. J., to me known and known to me to be the individuals described in and who executed the foregoing undertaking and they severally duly acknowledged to me that they executed the same. (Signature and title of officer.) I hereby approve the foregoing undertaking as to form, amount and sufficiency of the sureties. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. CHAPTER XXXVI EXECUTIONS FORMS NO. PAGE 390. Execution against property . . 661 391. Execution against person. , . 663 392. Execution against attached property 664 393. Execution on justice's judg- ment 665 394. Notice of motion for issuance of execution agaiast in- come from trust fund to be served on trustee 667 395. Affidavit to secure execution against wages and income from trust funds 668 396. Order that execution against wages or trust fund income issue 670 397. Execution against wages or income from trust funds. . 672 398. Affidavit to secure execution against wages in Munic- ipal Court of the City of New York 674 NO. PAGE 399. Order for issuance of execu- tion against wages or in- come from trust funds, in Municipal Court 676 400. Execution against wages and income from trust fund is- sued out of the Municipal Court 677 401. Petition on appHcation for motion for permission to issue execution against executor or administrator 679 402. Order for citation on fore- going petition for permis- sion to issue execution against executor 681 403. Citation on the foregoing pe- tition 682 404. Order permitting the issuance of execution against execu- tor 683 FORM NO. 390 Execution Against Property (Code Civ. Pro., § 1369) The People of the State of New York. To the Sheriff of the County of New York, Greeting: Whereas, judgment was rendered on the day of ,19 , in an action in the Supreme Court be- tween A. B., plaintiff, and C. D., defendant, in favor of the said plaintiff, A. B., against the said defendant, C. D., for the sum of dollars, as appears to us by the Judgment 661 662 Bradbury's lawyers' manual Execution Against Property ' ■ « Roll, filed in the office of the Clerk of the Supreme Court, County of New York, on the day of 19 . And whereas, the said judgment was docketed in the office of the Clerk of your County on the day of , 19 , and the sum of dollars is now actually due thereon; Therefore, we command you, that you satisfy the said judgment out of the personal property of the said judgment debtor within your County; or if sufficient personal property cannot be found, then out of the real property in your County belonging to such judgment debtor at the time when the said judgment was so docketed in the office of the Clerk of your County, or at any time thereafter, in whose hands soever the same may be, and return this execution within sixty days after its receipt by you, to the Clerk of the County of New York.i Witness, Hon. Samuel Greenbaum, one of the Justices of said Court at the Courthouse, New York County, the day of , 19 . Ely Brown, Attorney for Plaintiff. Endorsed on back: Sheriff of New York County: Levy and collect as within directed dollars, with interest from the day of , 19 , besides your fees, etc. Ely Brown, Plaintiff's Attorney. ' County where the judgment roll was originally filed. EXECUTIONS 663 Execution Against Person FORM NO. 391 Execution Against Person (Code Civ. Pro., § 1372) The People of the State of New York. To the Sheriff of the County of New York, Greeting: Whereas judgment was rendered on the day of , 19 , in an action in the Supreme Court, New York County, between A. B., plaintiff, and C. D., defendant, in favor of the said plaintiff, A. B., against the said defendant, C. D., for the sum of dollars, as appears to us by the Judgment Roll, filed in the office of the Clerk of the Supreme Court, County of New York. And whereas the said judgment was docketed in the office of the Clerk of your County on the day of 19 . And whereas an execution against the property of the judg- ment debtor has been duly issued to the Sheriff of the County of New York, where the said judgment debtor resides, and has been returned unsatisfied, and the stun of dollars is now actually due thereon, Therefore we command you, that you arrest the judgment debtor and commit him to the jail of your County until he pay the said judgment, or be discharged according to law, and that you return this execution within sixty days after its re- ceipt by you to the Clerk of the Supreme Court, New York County. Witness, Hon. Charles L. Guy, one of the Justices of the Supreme Court, at the New York County Courthouse, the day of , 19 . Ely Brown, . Attorney for Plaintiff. 664 Bradbury's lawyers* manual Execution Against Attached Property FORM NO. 392 Execution Against Attached Property (Code Civ. Pro., § 1370) The People of the State of New York. To the Sheriff of the County of New York, Greeting: Whereas judgment was rendered on the day of ,19 , in an action in the Supreme Court between A. B., plaintiff, and C. D., defendant, in favor of the said plaintiff, A. B., against the said defendant, C. D., for the sum of dollars, as appears to us by the Judgment Roll, filed in the office of the Clerk of the Supreme Court, County of New York. And whereas a transcript of the said judgment was dock- eted in your County on the day of , 19 , and the sum of dollars is now actually due thereon: And whereas a warrant of attachment was, on the day of ) 19 , duly issued in said action directed to you, and a levy having been duly made thereunder upon property of the judgment debtor: Therefore, we command you, that you satisfy the said judgment out of the personal property attached: (and if that is insufficient, out of the other personal property of the judg- ment debtor:) if (both are) insufficient, out of the real prop- erty attached: (and if that is insufficient, out of the real prop- erty belonging to said judgment debtor at the time when said judgment was so docketed in the office of the Clerk of your County, or at any time thereafter, in whose hands soever the same may be),^ and return this execution within sixty days ^ All the matter in the parentheses in the last paragraph should be omitted if the judgment debtor is a nonresident or a foreign corporation and the summons was served without the State, or otherwise than personally, pursuant to an order for that purpose. Code Civ. Pro., § 1370. If, however, the defendant subsequently appeared in the action by a general appearance such as by serving an answer or demurrer or by litigating the claim, then the execution would be in the form given, EXECUTIONS 665 Execution on Justice's Judgment after its receipt by you, to the Clerk of the Supreme Court, County of New York. Witness, Hon. Charles L. Guy ' one of the Justices of said Court, at the New York County Courthouse, the day of , 19 . Ely Brown, Plaintiff's Attorney, Endorsed on hack: Sheriff of New York County : Levy and collect dollars, with interest from the day of , 19 , besides your fees, etc. Ely Brown, Plaintiff's Attorney. FORM NO. 393 Execution on Justice's Judgment (Code Civ. Pro., §§ 3017, 3022) The People of the State of New York. To the Sheriff of the County of Broome, Greeting: Whereas judgment was rendered on the day of ,19 , by J. F., Esq., Justice of the Peace of the County of Broome in an action between A. B., plaintiff, and C. D., defendant, in favor of the said plaintiff A. B. and against the said defendant C. D., for the sum of dollars. And -vfHEREAS a transcript of said judgment was filed and including all the matter in parentheses. It is entirely improper, however, to have such matter in the execution if the summons was served without the State or otherwise than personally and the defendant is a nonresident or foreign corpora- tion. If, however, the attachment was issued against an absconding or concealed debtor the entire matter contained in the form in the text should be inserted in- cluding the portion in the parentheses. Place v. Riley, 98 N. Y. 1; aff'g 32 Hun, 17; Van Camp v. SearU, 79 Hun, 134; 29 Supp. 7.57. ' The execution may be tested in the name of any of the Justices of the Supreme Court. In New York County it is usual to test such process in the name of the Justice sitting at Special Term, Part 2. 666 Bradbury's lawyers' manual Execution on Justice's Judgment said judgment docketed in the office of the Clerk of the County of Broome. And whereas a transcript of the docket of said judgment was filed, and said judgment docketed in the office of the Clerk of your County, on the day of , 19 , and the sum of dollars is now actually due thereon : Therefore, we command you, that you satisfy the said judgment out of the personal property of the said judgment debtor within your County; or if sufficient personal property cannot be found, then out of the real property in your County belonging to such judgment debtor on the day when the said judgment was so docketed in your County, or at any time thereafter, in whose hands soever the same may be, and return this execution, within sixty days after its receipt by you, to the Clerk of the County Court, County of Broome. Witness, Hon. James Williams, County Judge of Broome County, at the County Courthouse in Broome County the day of J 19 , Elam Foster, Clerk of Broome County Court. Endorsed on hack: Sheriff of Broome County: Levy and collect as within di- rected dollars with interest from the day of , 19 , besides your fees, etc. Ely Brown, Plaintiff's Attorney. EXECUTIONS 667 Notice of Motion for Issuance of Execution Against Income FORM NO. 394 Notice of Motion for Issuance of Execution Against Income from Trust Fund to'be Served on Trustee ^ New York Supreme Court, New York County. Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor, and the Franklin Trust Company, Trustee. Please take notice that on the annexed affidavit of Adam Brown, sworn to the day of , 19 , and on all proceedings had in this action, a motion will be made before the Justice of the New York Supreme Court sitting at Special Term, Part I, thereof,^ to be held in and for the County of New York at the County Courthouse therein on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard for an order per- mitting an execution to be issued to the Sheriff of the County ' If this proceeding is taken to secure the income from a trust fund the trustee should be named as a party to the proceeding in the title and notice should be given to the trustee, in accordance with the form of notice of motion in the text. The formal allegations in the affidavit and order will be the same that they are in the text, except that it will be stated that the judgment debtor is entitled to receive from certain trustees a sum amounting to or in excess of twelve dollars a week and the order should recite the notice which is given to the trustee. ^ If the motion is made in the Municipal Court of the City of New York the motion should be returnable to a Justice of the Municipal Court of the City of New York at the Courthouse in the Borough and District where the judgment roll is filed. If the motion is made in the City Court of the City of New York it should be returnable to the Justice presiding at Special Term, for motions, of the City Court of the City of New York, in the Courthouse in the Borough of Manhattan, City of New York. 668 Bradbury's lawyers' manual Affidavit to Secure Execution Against Wages and Income of New York against the income due from the above-named Trustee, Frankhn Trust Company, to the above-named de- fendant and judgment debtor, Charles Darwin, in accordance with the provisions of § 1391 of the Code of Civil Procedure as stated in said affidavit of Adam Brown and for such other, further and different relief as may be proper, with the costs of this motion. Dated the day of , 19 . Yours, etc., Ely Franklin, Attorney for Plaintiff and Judgment Debtor. To: The Franklin Trust Co., No. , Street, Borough of Manhattan, City, County and State of New York. FORM NO. 395 Affidavit to Secure Execution Against Wages and Income from Trust Funds ^ (Code Civ. Pro., § 1391) {Title Same as Preceding Form) State of New York ] f SS ' County of New York] Adam Brown, being duly sworn, deposes and says that he is the plaintiff and judgment creditor in the above-entitled ac- 1 Under § 1391 such an execution may be issued to recover wages due from a municipal corporation and under L. 1910, c. 317, such an execution may issue to recover wages due from the State. While the order may be made without notice to the judgment debtor by the specific provisions of Code Civ. Pro., § 1391, it does not dispense with notice to a trustee, where it is sought to secure a portion of the income from a trust fund and therefore notice must be given to the trustee of the application. Pistchal v. Du- rant, 153 Supp. 735; King v. Irmng, 103 App. Div. 420; 92 Supp. 1094. The decision in Mayer v. Cilij of N. Y., 97 App. Div. 337; 89 Supp. 948; aff'd 181 N. Y. 550, in so far as it holds that only one execution can be out- standing at one time has been avoided by amendment, but this case is still in point in an action against the employer as only one execution can be satisfied at once and thus in an action it must appear that the plaintiff's execution is the first iiiis(ilinfinl execution outstanding. EXECUTIONS 669 Affidavit to Secure Execution Against Wages and Income tion. That on the , day of , 19 , a judg- ment was duly rendered in the Supreme Court in and for the County of New York, in favor of the plaintiff and against the defendant above named for the sum of dollars, after due personal service of the summons and complaint on the said defendant; that the judgment roll was duly filed in the office of the Clerk of the County of New York on said date; that thereafter and on the day of , 19 , an execution upon said judgment against the property of the said Charles Darwin, the judgment debtor, was duly issued out of the Supreme Court, to the Sheriff of the County of New York, where the said judgment debtor then resided and still resides, and that said execution has been returned wholly unsatisfied and said judgment remains wholly unpaid. That there is due and owing from the said defendant, Charles Darwin, the judgment debtor herein, from Adam Smith, of No. , Street, Borough of Manhattan, City, County and State of New York, as wages, earnings and salary, a sum amounting to twelve dollars or more per week, namely, the sum of seventeen dollars per week, and that the said sum, by reason of the said employment, will hereafter become due and owing to said judgment debtor each and every week. No previous application has been made for the order re- quested herein. Sworn to before me, this day of , 19 {Signature and title of officer.) Adam Brown. 670 Bradbury's lawyers' manual Order that Execution Against Wages or Trust Fund Income Issue FORM NO. 396 Order that Execution Against Wages or Trust Fund Income Issue ^ New York Supreme Court, New York County. Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. It appearing to my satisfaction by the annexed affidavit of Adam Brown, the above-named plaintiff and judgment creditor, sworn to the day of , 19 , that a judg- ment was duly recovered in the New York Supreme Court, New York County, on the day of > 19 , in favor of the above-named plaintiff and judgment creditor, Adam Brown, against the above-named defendant and judg- ment debtor, Charles Darwin, for the sum of dollars, and that said judgment was duly rendered upon the due personal service of the summons and complaint on the said defendant and that the judgment roll thereof was duly filed in the office of the Clerk of the County of New York, on said date; that thereafter and on the day of , 19 , an execution upon said judgment against the property of the said judgment debtor was duly issued out of the Su- preme Court, New York County, to the Sheriff of the County of New York, where the said judgment debtor then resided and still resides and that said execution has been returned wholly unsatisfied and the said judgment remains wholly unpaid; that there is due and owing to the defendant, Charles Darwin, from Adam Smith, of No. Street, in the Borough of Manhattan, City, County and State of New York, as his wages, earnings and salary a sum amounting to ' This order must be made by a judge and not by the court. Where the execu- tion is issued ciut of the court not of rcconl the order must be made by the court. EXECUTIONS 671 Order that Execution Against Wages or Trust Fund Income Issue more than twelve dollars per week, namely, the sum of seven- teen dbllars per week, and that the said sum, by reason of said employment will hereafter become due and owing to said judg- ment debtor and that no previous application has been made for this order, Now, on motion of E. F., attorney for said plaintiff, the judg- ment creditor herein, it is hereby Ordered, that an execution issue herein out of the New York Supreme Court, to the Sheriff of the County of New York against the wages, earnings and salary of the above-named defendant, Charles Darwin, the judgment debtor herein, due and owing to him, and which shall hereafter become due and owing to him fr'om the said Adam Smith, pursuant to § 1391 of the Code of Civil Procedure, which execution, when presented by the Sheriff of New York County, to the said Adam Smith, shall become a lien and a continuing levy upon the wages, earnings and salary due and to become due to the said judgment debtor from the said Adam Smith, to an amount not exceeding ten per centmn thereof, and that the said levy shall become and be a continuing levy until the said execution and expenses thereof shall become fully satisfied and paid, or until modified as provided by § 1391 of the Code of Civil Procedure and the amount of said levy and hen shall be the sum of one and seventy one-hundredths dollars per week. Dated the day of , 19 . Peter A. Hendrick, Justice of the Supreme Court of the State of New York. 672 Bradbury's lawyers' manual Execution Against Wages or Income from Trust Funds FORM NO. 397 Execution Against Wages or Income from Trust Funds (Code Civ. Pro., § 1391) The People of the State of New York. To the Sheriff of the County of New York, Greeting: Whereas, judgment was duly rendered on the day of , 19 , in an action in the New York Supreme Court, New York County, between Adam Brown, plaintiff, and Charles Darwin, defendant, in favor of said plaintiff and against the said defendant, for the sum of ' dollars, and Whereas, on the day of , 19 , said judgment was duly docketed in the office of the Clerk of the County of New York, and Whereas, on the day of , 19 , an execution upon said judgment against the said property of the said Charles Darwin, judgment debtor, was duly issued out of the Supreme Court, New York County, to the Sheriff of the County of New York, in which said Charles Darwin, the said defendant, then resided and now resides, and Whereas said execution has been returned by the Sheriff of the County of New York wholly unsatisfied and said judgment remains wholly unpaid, and the smn of dollars is now due thereon, and Whereas an order was on the day of , 19 , duly made by the Hon. Peter A. Hendrick, one of the Justices of the New York Supreme Court, directing that an execution issue to the Sheriff of the County of New York, against the wages, earnings and salary due and owing from Adam Smith, to the said Charles Darwin, the judgment debtor, and the wages, earnings, salary and income which may here- after become due and owing from Adam Smith to said Charles Darwin, the judgment debtor, pursuant to the provisions of § 1391 of the Code of Civil Procedure of the State of New York, and EXECUTIONS 673 Execution Against Wages or Income from Trust Funds Whereas there is now actually due upon said judgment the sum of dollars, with interest from the day of , 19 . Now, THEREFORE, we Command you that you satisfy said judgment out of the sums due or to grow due from the said Adam Smith to the said Charles Darwin, in the following manner, to wit: That is to say, that you collect from Adam Smith ten per centum of the sum of seventeen dollars, to wit, one and seventy one hundredths dollars, which the said judgment debtor, Charles Darwin, is entitled to receive from Adam Smith each week, until said judgment, with the costs, interest and your fees thereon is entirely satisfied, unless this execution shall be subsequently modified by order of the court, and that you make a continuing levy on said sums according to the provisions of § 1391 of the Code of Civil Procedure and that you return this execution to the Clerk of the New York Supreme Court, New York County, according to law, with your return as to the manner of satisafction. Witness, Hon. Peter A. Hendrick, one of the Justices of the New York Supreme Court, at the County Courthouse on the day of , 19 . Ely Franklin, Attorney for Plaintiff and Judgment Debtor. 674 Bradbury's lawyers' manual Affidavit to Secure Execution Against Wages FORM NO. 398 Affidavit to Secxire Execution Against Wages in Municipal Court of the City of New York i (Code Civ. Pro., § 1391) Municipal Court of the City of New York: Borough of Manhattan: Second District. Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. State of New York County of New York ss: Adam Brown, being duly sworn, deposes and says that he is the plaintiff and judgment creditor in the above-entitled ac- tion. That on the day of , 19 , a judg- ment was duly rendered in the Municipal Court of the City of New York, Borough of Manhattan, Second District, in favor of this plaintiff and against the defendant and judgment debtor above named, Charles Darwin, for the smn of dollars, after due personal service of the summons on said defendant; that the judgment roll thereof was duly filed in the office of the Clerk of said Municipal Court on said date; that thereafter and on the day of , 19 , an execution upon said judgment against the property of the said judgment debtor was duly issued out of said court by the Clerk thereof to a Marshal of the City of New York, where the said judgment debtor then resided and still resides, and the said execution has been returned wholly unsatisfied and the said judgment remains wholly unpaid; that no transcript of ' See notes to Forms Nos. 395 and 396 preceding. EXECUTIONS 675 Order for Issuance of Execution Against Wages or Income said judgment has been issued or filed; that there is due and owing to the said defendant, the judgment debtor above named, from Adam Smith, No. , Street, in the Borough of Man- hattan, City and State of New York, as his wages, earnings, and salary a sum exceeding twelve dollars per week, namely, seven- teen dollars per week, and that the said smn, by reason of the said employment will hereafter become due and owing to the said judgment debtor each week. No previous application has been made for the order re- quested herein. Sworn to before me, this | Adam Brown, day of , 19 . J {Signature and title of officer.) FORM NO. 399 Order for Issuance of Execution Against Wages or Income from Trust Funds, in Municipal Court (Code Civ. Pro., § 1391) Municipal Court of the City of New York: Borough of Manhattan: Second District. Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. It appearing to my satisfaction by the annexed affidavit of Adam Brown, the above-named plaintiff and judgment creditor, sworn to the day of , 19 , that on the day of 19 , a judgment was duly rendered in the Municipal Court of the City of New York, Borough of Manhattan, Second District, in favor of the above-named plaintiff against the defendant above named, for the sum of dollars, and that said judgment 676 Bradbury's lawyers' manual Order for Issuance of Execution Against Wages or Income was duly rendered upon the due personal service of the sum- mons on the said defendant and the judgment roll thereof was thereafter duly filed in the office of the Clerk of the said Munici- pal Court on said date; that thereafter and on the day of , 19 , an execution upon said judgment against the property of the said Charles Darwin, the judgment debtor, was duly issued out of the said Municipal Court by the Clerk thereof to a Marshal of the City of New York where the said judgment debtor then resided and still resides, and the said execution has been returned wholly unsatisfied, and the said judgment remains wholly unpaid; that no transcript of said judgment has been issued or filed and that there is due and owing to the defendant, Charles Darwin herein, from Adam Smith of No. , Street, in the Borough of Manhattan, City and State of New York, as his wages, earnings and salary, a sum exceeding twelve dollars per week, namely, the sum of seventeen dollars per week, and that the same smn, by reason of the said employment, will hereafter become due and owing to said judgment debtor each week and that no previous ap- plication has been made for this order. Now, on motion of Ely Franklin, Esq., attorney for the said plaintiff and judgment creditor, it is hereby Ordered that an execution issue herein out of this court to any Marshal of the City of New York against the wages, earnings and salary of the above-named defendant and judg- ment debtor, Charles Darwin, due and owing to him and which shall hereafter become due and owing to him from the said Adam Smith, pursuant to § 1391 of the Code of Civil Procedure, .which execution when presented by a Marshal of the City of New York to the said Adam Smith, shall become a Hen and a continuing levy upon the wages, earnings and salary due and to become due to the said judgment debtor from the said Adam Smith to an amount which shall not exceed ten percentum thereof, and that the said levy shall become and be a continu- ing levy until the said execution and the expenses thereof shall become fully satisfied and paid or until modified as provided by § 1391 of the Code of Civil Procedure and the amount of said EXECUTIONS 677 Execution Against Wages and Income from Trust Fund levy and lien shall be the sum of one and seventy one-hundred ths dollars per week and that the Clerk of this court be and hereby is ordered to issue said execution in accordance with law. Dated the day of , 19 . Alfred Seaman, Justice of the Municipal Court of the City of New York. FORM NO. 400 Executidta Against Wages and Income from Trust Fund Issued out of the Municipal Court (Code Civ. Pro., § 1391) The People of the State of New York. To any Marshal of the City of New York, Greeting: Whereas, judgment was duly rendered on the day of , 19 , in an action in the Municipal Court of the City of New York, Borough of Manhattan, Second District, between Adam Brown, plaintiff, and Charles Darwin, defendant, in favor of said plaintiff and against said defendant, for the sum of dollars, and Whereas on the day of , 19 , said judgment was duly docketed and said judgment roll was duly filed in the office of the Clerk of the Municipal Court of the City of New York, Borough of Manhattan, Second District, and Whereas on the day of , 19 , an execution upon said judgment against the property of the said Charles Darwin was duly issued out of the Municipal Court by the Clerk thereof to a Marshal of the City of New York, in which said city the said Charles Darwin, said defendant and judgment debtor, then resided and still resides, and Whereas said execution has been returned by said Marshal of the City of New York wholly unsatisfied and the said judg- ment remains wholly unpaid and the sum of dollars is now due thereon, and 678 Bradbury's lawyers' manual Execution Against Wages and Income from Trust Fund Whereas an order was on the day of , 19 , duly made by Hon. Alfred Seaman, one of the Justices of the Municipal Court of the City of New York, directing that an execution issue to a Marshall of the City of New York against the wages, salary and earnings due and owing from Adam Smith to said Charles Darwin, the judgment debtor, and the wages, earnings, salary and income which may here- after become due and owing from Adam Smith to the said Charles Darwin, said judgment debtor, pursuant to the pro- visions of § 1391 of the Code of Civil Procedure of the State of New York, and Whereas there is now actually due upon said judgment the sum of dollars, with interest from the day of , 19 . Now, THEREFORE, we Command you that you satisfy said judgment out of the sums due or to grow due from the said Adam Smith to the said Charles Darwin, in the following manner: that is to say, that you collect from Adam Smith, ten per centum of the sum of seventeen dollars, to wit, the sum of one and seventy one-hundredths dollars per week, which the said judgment debtor is entitled to receive from Adam Smith each week until said judgment, with costs, inter- est and your fees thereon be entirely satisfied, unless this execution shall be subsequently modified by order of the court and that you make a continuing levy on said sum according to the provisions of § 1391 of the Code of Civil Procedure and that you return this execution to the Clerk of the Municipal Court, City of New York, Second District, according to law, with your return as to the manner of its satisfaction. Witness, Hon. Alfred Seaman, one of the Justices of the Municipal Court of the City of New York, at the Courthouse in the Second District, of the Borough of Manhattan, on the day of , 19 . Franklin Brown, Ely Franklin, Esq., Clerk. Attorney for Plaintiff and Judgment Creditor. EXECUTIONS 679 Petition on Application for Motion for Permission to Issue Execution FORM NO. 401 Petition on Application for Motion for Permission to Issue Execu- tion Against Executor or Administrator ^ (Code Civ. Pro., §§ 1825-1826) Surrogate's Court, New York County. In the Matter of the Application of Adam Brown, for Permission to Is- sue Execution against Charles Darwin, as Executor under the Last Will and Testament of William Brown, deceased, on a judgment in an action in the Supreme Court in which Adam Brown was plaintiff and Charles Darwin, as such Ex- ecutor, was defendant. To the Surrogate of the County of New York: Adam Brown, your petitioner herein, respectfully shows: I. That in an action in the Supreme Court, New York County, your petitioner, Adam Brown, duly recovered a judgment against Charles Darwin, as Executor under the Last Will and Testament of William Brown, deceased, for the sum of dollars, and said judgment was duly filed and docketed in the office of the Clerk of the County of New York on the day of , 19 ; that demand has been duly made on said Charles Darwin for pay- ment, but no part of said judgment has been paid and no appeal is pending therefrom and the time to appeal therefrom has expired. 1 A motion to permit an execution to be issued against an executor must be begun by petition upon which a citation must be issued and this citation must be served upon all the executors or administrators personally, unless such service is excused for some particular reason which must be specified. McGinn v. Light- house, 2 Bradbury's Pl. and Pr. Rep. 336. 680 bradbuey's lawyers' manual Petition on Application for Motion for Permission to Issue Execution II. The will of William Brown was duly admitted to pro- bate by the Surrogate of New York County on the day of , 19 , and letters testamentary to the said Charles Darwin, as Executor under the said Will, were duly issued by the Surrogate of the County of New York on the day of , 19 , and said Charles Dar- win is still such executor, and is the sole executor imder the last Will and Testament of said William Brown, deceased. III. Yoiu- petitioner further shows that the assets of the Estate of said William Brown, in the hands of the said Charles Darwin, as such executor, after payment of all amounts charge- able against them for expenses and for claims entitled to prior- ity as against your petitioner, are sufficient to pay all the debts, legacies or other claims of the class to which your peti- tioner's claim belongs, as your petitioner has been advised by said Charles Darwin, and as appears by the preliminary ac- count filed by said Charles Darwin as such executor in the office of the Clerk of the Surrogate's Court of New York County on the day of ' , 19 . {Or otherwise state how the information was received as to the funds in the estate.) Your petitioner therefore prays that a citation may be issued to said Charles Darwin, as such executor, requiring him to show cause why the prayer of this petition should not be granted and that an execution be permitted to be issued out of the Supreme Court on the said judgment hereinbefore recited. Ely Franklin, Esq., Adam Brown, Attorney for Petitioner, Petitioner. No. , Street, Borough of Manhattan, City and State of New York. ss: State op New York County op New York Adam Brown, being duly sworn, deposes and says that he is the petitioner named in the foregoing petition; that he has read and knows the contents thereof; that the same is true to his own knowledge except as to the matters which are therein EXECUTIONS 681 Order for Citation on Foregoing Petition stated to be alleged on information and belief and as to those matters he believes it to be true. Sworn to before me, this ] Adam Brown. day of , 19 (Signature and title of officer.) FORM NO. 402 Order for Citation on Foregoing Petition for Permission to Issue Execution Against Executor At a stated term of the New York Surrogate's Court, held in the Hall of Records in the County of New York on the day of , 19 . Present: Hon. Robert L. Fowler, Surrogate. In the Matter of the Application of Adam Brown, for Permission to Issue Execution against Charles Darwin, as Executor under the last Will and Testament of William Brown, deceased, on a judgment in an action in the Supreme Court, in which Adam Brown was plain- tiff and Charles Darwin, as such executor, was defendant. A duly verified petition having been duly filed in the above- entitled proceeding for an order permitting the issuance of an execution against the above-named Charles Darwin, as exec- utor. Now, on reading and fiUng said petition, and on motion of E. F., attorney for the petitioner, it is hereby Ordered that a citation issue to the said Charles Darwin, as executor under the last Will and Testament of William Brown, deceased, requiring him to show cause why the prayer of said 682 Bradbury's lawyers' manual Citation on the Foregoing Petition petition should not be granted and an order made permitting the said Adam Brown to issue an execution on the judgment in said petition mentioned. Enter, R. L. F., Surrogate. FORM NO. 403 Citation on the Foregoing Petition The People of the State of New York, by the Grace of God, Free and Independent. To Charles Darwin, Executor under the last Will and Testament of William Brown, deceased, send greeting: You are hereby cited and required personally to be and ap- pear before our Surrogate of the County of New York, at the Surrogate's Court of said County, held at the Hall of Records in the County of New York, on the day of 19 , at 10:30 o'clock in the forenoon of that day, then and there to show cause why an order should not be made per- mitting Adam Brown to issue an execution on a judgment in favor of said Adam Brown in the Supreme Court, New York County, for dollars, entered and filed in the office of the Clerk of the County of New York on the day of ,19 , against you, Charles Darwin, as Execu- tor under the last Will and Testament of William Brown, de- ceased, and why the said Adam Brown should not have such other, further and different relief as may be proper in the prem- ises. In testimony whereof, we have caused the seal of the Surrogate's Court of the said County of New York to be here- unto affixed. Witness, Hon. Robert L. Fowler, a Surrogate of the County of New York, the day of , in the year of our Lord one thousand nine hundred and seventeen. [Seal.] William Smith, Ely Franklin, Clerk of the Surrogate's Court. Attorney for petitioner. EXECUTIONS 683 Order Permitting the Issuance of Execution Against Executor FORM NO. 404 Order Permitting the Issuance of Execution Against Executor At a stated term of the New York Surrogate's Court, held in the Hall of Records, in the County of New York, on the day of , 19 . Present: Robert L. Fowler, Surrogate,. In the Matter of the Application of Adam Brown, for Permission to Issue Execution against Charles Darwin, as Executor under the last Will and Testament of William Brown, deceased, on a judgment in an action in the Supreme Court, in which Adam Brown was plain- tiff and Charles Darwin, as such executor, was defendant. A verified petition having been duly filed herein on the day of , 19 , praying that an order be made permitting the above-named Adam Brown to issue an execution against the above-named Charles Darwin, as execu- tor under the last Will and Testament of William Brown, de- ceased, upon a judgment in favor of said Adam Brown in the New York Supreme Court, New York County, for the sum of dollars, which was duly filed and entered in the office of the Clerk of the County of New York on the day of , 19 ) and a citation having been duly issued thereupon, returnable the day of , 19 , and said citation having been duly personally served upon the said Charles Darwin, on the day of ,19 , as appeared by the affidavit of service of L. M., sworn to the day of , 19 , and said 684 Bradbury's lawyers' manual Order Permitting the Issuance of Execution Against Executor motion on said petition and citation having come on duly to be heard on the day of , 19 , now after reading said petition, citation and affidavit of serv- ice in favor of the said motion, and after reading and filing the affidavit of Charles Darwin, sworn to the day of , 19 , in opposition thereto, and it ap- pearing to the satisfaction of the court that the assets of the estate of said William Brown, deceased, in the hands of said Charles Darwin as such executor are sufficient to pay the said judgment mentioned in said petition, after pajrment of all sums chargeable against the estate in the hands of said executor for expenses and for claims entitled to priority against the claim of the said Adam Brown, are sufficient to pay all the debts, legacies and other claims of the class to which the said Adam Brown's claim belongs, and after hearing Ely Frank- hn, attorney for the said Adam Brown, in favor of said motion, and George Henry, Esq., attorney for said Charles Darwin, as such executor, in opposition thereto, and due deliberation having been had, Now, on motion of Ely Franklin, Esq., attorney for said Adam Brown, it is Ordered that the said Adam Brown be and hereby is per- mitted to issue an execution on a judgment in the Supreme Court, New York County, for the sum of dollars, in favor of said Adam Brown, as plaintiff and against the said Charles Darwin, as Executor under the last Will and Testa- ment of William Brown, deceased, as defendant, which said judgment was duly filed and entered in the office of the Clerk of the County of New York on the day of , 19 . Enter, R. L. F., Surrogate. CHAPTER XXXVII FORMS NO. PAGE NO. PAGE 405. Affidavit for examination of property of the judgment judgment debtor before re- debtor 693 turn of execution 686 410. Order for examination of 406. Order for examination of third person as to property judgment debtor before of judgment debtor 695 return of execution 689 411. Affidavit of service of order 407. Affidavit to obtain order for in supplementary proceed- examination of" judgment ings 696 debtor after return of ex- 412. Affidavit to obtain order to ecution 690 show cause why attach- 408. Order for examination of ment should not issue judgment debtor after re- against judgment debtor. . 697 turn of execution 692 413. Order to show cause why at- 409. Affidavit for the examination tachment should not issue 699 of a third party as to ' In New York County a referee is very rarely appointed in supplementary proceedings, although this is frequently done in other portions of the State. If a referee is appointed, he should first sign and swear to an oath in the following form: (TUle of Proceeding) I, John Jones, Referee appointed herein, do solemnly swear and declare that I will faithfully and fairly discharge my duties upon this reference and will make a just and true report according to the best of my understanding. Sworn to before me, this 1 John Jones. day of , 19 • 1 {Signature and title of oficer.) A referee must take a record of the testimony offered. Usually this is done by a stenographer, and after the testimony is written out the judgment debtor ap- pears at an adjourned hearing and signs and swears to the testimony before the referee. Whether the testimony is taken before a referee or otherwise, the following is a convenient form of introduction to the testimony: {Title of proceedings) Examination of Charles Darwin, the judgment debtor herein, pursuant to an 685 686 BRADBURY'S LAWYERS' MANUAL Affidavit for Examination of Judgment Debtor FORM NO. 405 Affidavit for Examination of Judgment Debtor Before Return of Execution (Code Civ. Pro., §§ 2435-2458) City Court of the City of New York. In the Matter of Supplementary Pro- ceedings; Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. State of New York | County of New York \ ss : City of New York J George Henry, being duly sworn, deposes and says that he is the attorney for the above-named Adam Brown, the plain- order in supplementary proceedings, dated the day of , 19 , wliioh is hereunto annexed, on this day of , 19 . APPEARANCES: George Henry, attorney for plaintiff and judgment creditor. Ely Franklin, attorney for defendant anil judgment debtor. Charles Darwin, the judgment debtor. (Where a judgment debtor appeared before the court for examination the oath is administered either by the clerk or by the judge before the examination begins. If a reference has been ordered the oath is administered by the referee. In either event the onlh iwuld be in the following form:) " You do solemnly swear that you wiU true answers make to such questions as may be put to you, concerning your property, so help you God?" The statement would then continue as follows: Charles Darwin, the judgment debtor, being first duly sworn, testifies as follows: Here should follow the testimony either in question and answer, or if it is writ- ten out in longhand, as it sometimes is, the direct statements of the judgment debtor are put down. Of course the judgment debtor has a right to have the testimony inserted by question and answer, if he insists upon it. In a great SUPPLEMENTARY PBOCEEDINGS 687 Affidavit for Examination of Judgment Debtor tiff and judgment creditor in this proceeding; that in an action in the Municipal Court of the City of New York, ^ Borough of Manhattan, Second District, wherein said Adam Brown was majority of these proceedings, however, the statements are made in narrative form, in response to answers by the counsel for the judgment debtor where they are taken in longhand. The examination in supplementary proceedings is allowed to cover a broad field. As a practical matter the judgment debtor who allows a judgment to be taken against him and an execution to be returned unsatisfied usually has very little, if any, present property. Almost always some transfer has been made of property, if the judgment debtor is endeavoring to conceal his assets and therefore the examination, as a rule, and as a practical matter, should be directed more closely to property which the judgment debtor has had in the past, and of which he has made transfer than of his present assets. Of course, examination should be had as to present assets as weU, including bank accounts, stocks or bonds, interest in life insurance policies, either on his own life or those of another and present or contingent interests in real estates including mortgages and tax liens. An examination should also be had as to expectant estates, such, for example, as vested or contingent remainders in will, or trust deeds. An examination should be made as to the present mode of living of the judgment debtor, and how he has paid his living expenses since the order was served on him. Very frequently it is desirable to ascertain the income of the judgment debtor from either wages or from trust funds so that an execution may be issued under § 1391 of the Code. In this connection also it is important to discover whether or not any execution has been issued under § 1391, and if such an execution has been issued, it is desirable to inquire as to the consideration for the judgment upon which such execution was issued. It not frequently happens that friendly judgments are entered against judgment debtors and an execution- issued under § 1391 for the purpose of staving off other executions. This matter should be gone into thoroughly. If an adjournment is necessary the date and place and hour of the adjournment should be noted on the paper and the judgment debtor should sign this adjourn- ment. Then the paper should be taken to the court with the words "so ordered" endorsed thereon and have the judge initial the adjournment. If it is desired to have a receiver appointed of the judgment debtor's property this may be done at the close of the examination, without further notice, but if it is not done at that time there must be a notice of motion given for that purpose. If any property is discovered which would pay the expenses of a receivership it is desirable to move for a receiver at once upon the close of the examination, as this is the most convenient and the cheapest way to proceed. ' When the judgment is rendered in the Municipal Court of the City of New York and the transcript thereof is filed in the County Clerk's office the judgment becomes a judgment of the Supreme Court, but by the provisions of Code Civ. Pro., § 2434, supplementary proceedings must be instituted in the City Court of the City of New York. 688 Bradbury's lawyers' manual Affidavit for Examination of Judgment Debtor the plaintiff and said Charles Darwin was the defendant, a judgment was duly recovered against said Charles Darwin, the judgment debtor herein, on the day of , 19 , for dollars, damages and costs, after due personal service of the summons therein upon said judgment debtor {if the summons was served by substituted service, as it may be in certain instances, so state) ; that said judgment was for a sum not less than twenty-five dollars; that the judgment roll in said action was duly filed in the office of the Clerk of the Municipal Court of the City of New York, Borough of Man- hattan, Second District on the day of , 19 ; that a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the Clerk of the County of New York on the day of , 19 ; thereafter an execution upon said judgment against the property of the said judgment debtor was on the day of , 19 , duly issued out of the Supreme Court, which is a court of record, to the Sheriff of the County of New York, where said judgment debtor then and at the time of the commencement of this special proceeding resided and still resides; (had a place for the regular transaction of business in person. See Code Civ. Pro., § 24-58); that the said Sheriff has not yet returned said execution and that said judgment remains wholly unsatisfied. Deponent further says that the said judgment debtor, Charles Darwin, has property consisting of (here state the na- ture of the property) which he unjustly refuses to apply to the satisfaction of said judgment, as deponent is informed and be- lieves; that on the day of , 19 , and after the issue of said execution a demand was made by the Sheriff of the County of New York upon said judgment debtor to apply said property to the satisfaction of said judgment and execution, and he has neglected and refused so to do. No previous application for this order has been made. Sworn to before me, this 1 George Henry. day of , 19 . J (Signature and title of officer.) SUPPLEMENTARY PROCEEDINGS 689 Order for Examination of Judgment Debtor FORM NO. 406 Order for Examination of Judgment Debtor before Return of Execution {Title Same as Preceding Form) It appearing to my satisfaction by the annexed (above) affidavit of George Henry, attorney for the judgment debtor in this proceeding, that judgment has been duly recovered in an action in the Municipal Court of the City of New York, Borough of Manhattan, Second District, wherein Adam Brown was the plaintiff and Charles Darwin was the defendant, against the said Charles Darwin, the above-named judgment debtor, herein on the day of , 19 , for the sum of dollars; that said judgment was ren- dered upon the personal service of the summons therein upon the said judgment debtor {if by substituted service, so state) that the said judgment was for a simi not less than $25; that the judgment roll was duly filed in the office of the Clerk of the Municipal Court of the City of New York, Borough of Man- hattan, Second District, on the day of , 19 ; that a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the Clerk of the County of New York on the day of , 19 ; that thereafter an execution upon said judgment against the prop- erty of the said judgment debtor was, on the day of , 19 , duly issued out of the Supreme Court which is a court of record, to the Sheriff of the County of New York, where said judgment debtor then and at the time of the com- mencement of this special proceeding resided and still resides {or had a place for the regular transaction of business in person) ; and that such execution has not yet been returned by said sheriff and that the said judgment remains wholly unsatisfied; that said judgment debtor has property consisting of {de- scribe it), which after demand he unjustly refuses to apply to the payment of said judgment and that no previous appUcation has been made for this order, I do hereby order and require 690 Bradbury's lawyers' manual Affidavit to Obtain Order for Examination of Judgment Debtor Charles Darwin, the judgment debtor, to appear before me or the Justice of the City Court of the City of New York, sitting at Special Term for motions, at the Courthouse in the Borough of Manhattan, City, County and State of New York, on the day of ) 19 , at ten o'clock in the forenoon and on such other days as the court or referee duly appointed shall name, to make discovery on oath concerning his property, and the said Charles Darwin, the judgment debtor herein, is hereby forbidden to transfer or make any other disposition of the property belonging to him not exempt by law from execu- tion, or in any manner to interfere therewith until further order in the premises. Dated the day of , 19 . Edward F. O'Dwyer, Chief Justice of the City Court of the City of New York. FORM NO. 407 Affidavit to Obtain Order for Examination of Judgment Debtor After Return of Execution ^ New York Supreme Court, New York County. In the Matter of Supplementary Pro- ceedings: Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. State of New York County of New York i- ss : City of New York George Henry, being duly sworn, says that he is the at- torney for Adam Brown, the above-named judgment creditor in this proceeding; that in an action in the Supreme Court, New York County, wherein Adam Brown was the plaintiff ' Under Code Civ. Pro., §§ 1380, 1381 ami 2554, proceedings supplementary to SUPPLEMENTARY PROCEEDINGS 691 Affidavit to Obtain Order for Examination of Judgment Debtor and Charles Darwin was the defendant, a judgment was duly recovered against said Charles Darwin, the judgment debtor herein, on the day of , 19 , for the sum of dollars, damages and costs, after due personal service of the summons herein upon the said judgment debtor '{if the summons was served by substituted service, so state) ; that said judgment was for a sum not less than |25; that the judg- ment roll in said action was duly filed in the office of the clerk of the Supreme Court, in and for the County of New York on the day of , 19 ; (that a transcript of said judgment was duly filed of said judgment or duly docketed in the office of the Clerk of the County of on the day of , 19 ;) ^ that thereafter an execution upon said judgment against the property of the said judgment debtor was on the day of > 19 , duly issued out of the Supreme Court, in and for New York County, which is a court of record, to the sheriff of the County of New York, where said judgment debtor then and at the time of the com- mencement of this special proceeding resided and still resides (had a place for the regular transaction of business in person. See Code Civ. Pro., § 2458) ; that the said sheriff has returned said execution wholly unsatisfied and that the said judgment remains wholly unpaid. No previous application has been made for an order such as is prayed for herein. Sworn to before me, this 1 George Henry. day of , 19 . J (Signature and title of officer.) execution may be maintained for the examination of an administratrix with the will annexed of a deceased person to enforce a Surrogate's decree. Hoge v. Bab- cock, 2 Bradbury's Pl. & Ph. Rep. 118. Proceedings supplemental to execution may be enforced against a corporation even though it has been dissolved in voluntary proceedings. German Exchange Bank v. Scheidig, 3 Bradbury's Pl. & Pr. Rep. 556. ' If a transcript of the judgment has been filed in an office of the clerk of a county different from that in which the original judgment roll was filed and an execution has been issued thereon to the sheriff of the county where the tran- script has been filed, and the judgment debtor resided or had a place for the regular transaction of business in person in that county, then, of course, that would be the proper county in which to have the order returnable. 692 Bradbury's lawyers' manual Order for Examination of Judgment Debtor After Return of Execution FORM NO. 408 Order for Examination of Judgment Debtor After Return of Execution (Title Same as Afidavit Preceding) It appearing to my satisfaction by the above affidavit of George Henry, the attorney for the judgment creditor in this proceeding, that judgment has been duly recovered in an action in the Supreme Court, in and for the County of New York, wherein Adam Brown was the plaintiff, and Charles Darwin was the defendant, against the -above-named Charles Darwin, the judgment debtor herein, on the day of ,19 , for the sum of dollars; that said judgment was rendered upon the personal service of the summons there upon said judgment debtor (if upon substituted serjnce, so state) ; that the said judgment was for a sum not less than $25; that the judgment roll was duly filed in the office of the Clerk of the Supreme Court in and for the County of New York, on the day of , 19 , (and that a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the clerk of the County of , on the day of , 19 ); that thereafter an execution upon the said judgment against the property of the said judgment debtor was on the day of , 19 , duly issued out of the Supreme Court, in and for the County of New York, which is a court of record, to the Sheriff of the County of New York where said judgment debtor then and at the time of the commencement of this special proceeding resided and still resides {had a place for the regular transaction of business in person. See Code Civ. Pro., § 2458); that said execution has been returned wholly un- satisfied and that said judgment remains wholly unpaid and that no previous application has been made for this order, I do hereby order and require Charles Darwin, the above-named SUPPLEMENTARY PROCEEDINGS 693 Affidavit for the Examination of a Third Party judgment debtor, to appear before me or the Justice sitting at Special Term, Part 2, of the New York Supreme Court, at the / / County Courthouse, in New York County, on the day of , 19 , at 10 :30 o'clock in the forenoon and on such further days as the court or referee duly appointed shall name, to make discovery on oath concerning his property. And the said Charles Darwin, the judgment debtor, is hereby forbidden to transfer or make any other disposition of the property belonging to him not exempt by law from execution, or in any manner to interfere therewith until further order in the prem- ises. Dated the day of , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. FORM NO. 409 Affidavit for the Examination of a Third Party as to Property of the Judgment Debtor (Code Civ. Pro., § 2441) City Court of the City of New York. In the Matter of Supplementary Pro- ceedings: Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. State of New York County op New York City of New York ss: George Henry, being duly sworn, deposes and says that he is the attorney for Adam Brown, the above-named judg- ment creditor in this proceeding; that judgment was duly 694 Bradbury's lawyers' manual Affidavit for the Examination of a Third Party recovered by said Adam Brown, the judgment creditor, against the above-named Charles Darwin, the judgment debtor herein, in an action in the City Court of the City of New York, on the day of j 19 , for dollars, damages and costs, after personal service on the said Charles Darwin {if the summons was served by substituted service, so state) ; that the said judgment was for a sum not less than $25; that the judgment roll in said action was duly filed in the office of the Clerk of the City Court of the City of New York on the day of ,19 ; that a transcript of said judgment was duly filed and said judgment was duly dock- eted in the office of the Clerk of the County of New York ^ on the day of , 19 ; that an execution upon the said judgment against the property of the said judg- ment debtor was on the day of , 19 , duly issued out of the City Court of the City of New York, which is a com-t of record, to the Sheriff of the County of New York, where said judgment debtor then and at the time of the commencement of this special proceeding resided and still resides {at a place for the regular transaction of business in person) that the said sheriff has returned said execution wholly im- satisfied and the said judgment remains wholly unpaid and that Adam Smith has property belonging to or is indebted to the said Charles Darwin, the judgment debtor herein, of the value or exceeding the sum of $10. No previous application for the order herein prayed for has been made. Sworn to before me, this 1 George Henry. day of , 19 . J {Signature and title of officer.) ' If the judgment was originally rendered in the City Ck)urt of the City of New York the proceedings Inay be instituted in that court, but it must first appear that a transcript of the judgment was filed in the office of the Clerk of the County of New York. This does not make the City Court judgment a judgment of the Supreme Court for the purpose of supplementary proceedings, but it is a prereq- uisite to the institution of the supplementary proceedings or the issue of an execution to the Sheriff of the County of NeW York. SUPPLEMENTARY PROCEEDINGS 695 Order for Examination of Third Person as to Property of Judgment Debtor FORM NO. 410 Order for Examination of Third Person as to Property of Judgment Debtor (Code Civ. Pro., § 2441) {Title Same as Preceding Form) It appearing to my satisfaction by the above affidavit of George Henry, the attorney for Adam Brown, the judgment, creditor in this proceeding, that judgment has been duly re- covered by said Adam Brown, the said judgment creditor herein, against Charles Darwin, the above-named judgment debtor, in an action in the City Court of the City of New York, on the day of , 19 , for dollars, damages and costs, in which said action the summons was personally served {served by substituted service), on the said Charles Darwin, the judgment debtor herein; that the said judgment was for a sum not less than $25; that the judg- ment roll in said action was duly filed in the office of the Clerk of the City Court of the City of New York on the day of , 19 ; that a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the Clerk of the County of New York on the day of , 19 , and that an execution upon said judgment against the property of the said judgment debtor was on the day of , 19 , duly issued out of the City Court of the City of New York, which is a court of record, to the Sheriff of the County of New York, where said judgment then and at the time of the commencement of this special proceeding resided and still resides {had a place for the regular transaction of business in person), and that the said sheriff has returned said execution wholly unsatisfied and that said judgment remains wholly unpaid and that Adam Smith has property or is indebted to the said judgment, of the value of a sum exceeding $10, and that no previous application for 696 Bradbury's lawyers' manual Affidavit of Service of Order in Supplementary Proceedicgs this order has been made, I do hereby order and require the said Charles Darwin, the said judgment debtor, to appear be- fore me or the Justice sitting at Special Term for motions, of the City Court of the City of New York, at the Courthouse, in the Borough of Manhattan, City, County and State of New York, on the day of , 19 , at ten o'clock in the forenoon and on such further days as I, or one of the Justices of this court, or the referee duly appointed hereunder shall name, to be examined concerning the said debt or property, and the said Adam Smith is hereby forbidden to transfer or make or suffer any other disposition of any property belonging to said judgment debtor, not exempt by law from levy and sale under an execution, or in any manner to interfere or in any respect change the facts above recited as they now exist until further order in the premises. Dated the day of , 19 . Edward F. O'Dwyer, Chief Justice of the City Court of the City of New York. FORM NO. 411 Affidavit of Service of Order in Supplementary Proceedings City Court of the City of New York. In the Matter of Supplementary Proceedings: Adam Brown, Plain- tiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. State of New York County of New York I^ss: City of New York Lewis Marx, being duly sworn, says that he is over the age of twenty-one years {if between 18 and 21, state age); that on SUPPLEMENTARY PROCEEDINGS 697 Affidavit to Obtain Order to Show Cause why Attachment Should not Issue the day of , 19 , at No. , Street, in the City, County and State of New York, he served upon Charles Darwin, the judgment debtor above najned, the foregoing order, by delivering a copy of said order and the affidavit attached thereto to said Charles Darwin," the judgment debtor personally, and by leaving the same with him, and at the same time and place deponent exhibited to said Charles Darwin, the judgment debtor, the original order with the signature of the Hon. Edward F. O'Dwyer thereunto sub- scribed. Deponent further says that he knew the person so served to be the said Charles Darwin, the person mentioned and de- scribed as the judgment debtor in the said affidavit and order. Sworn to before me, this 1 Lewis Marx. day of , 19 . J {Signature and title of officer.) FORM NO. 412 Affidavit to Obtain Order to Show Cause why Attachment Should not Issue Against Judgment Debtor (Code Civ. Pro., § 2457) City Court of the City of New York. In the Matter of Supplementary Pro- ceedings: Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. State of New York County of New York City of New York •ss George Henry, being duly sworn, deposes and says that he is the attorney for Adam Brown, the judgment creditor in 698 Bradbury's lawyers' manual Affidavit to Obtain Order to Show Cause why Attachment Should not Issue the above-entitled proceeding; that on the day. of ,19 , he attended at Special Term for Motions at the City Court of the City of New York, at the Courthouse in the Borough of Manhattan, City, County and State of New York, from 10 A. M. to 10:30 A. M. on that day and that the above-named Charles Darwin, the judgment debtor named in the enclosed affidavit and order, did not attend and was not present at said time and place mentioned in said order; that said judgment debtor was duly called by the officer of the court at the said time and place at 10 o'clock in the morning and did not answer, either personally or by attorney. That thereafter and at 10:30 o'clock said Charles Darwin was again called by the officer of the court and did not answer either personally or by attorney and the default of said Charles Dar- win was thereupon duly noted by the justic^ presiding in said court at said time and place, as appears by the annotation on said order for the examination of the said judgment debtor in supplementary proceedings, which is hereunto annexed and made a part hereof. The said conduct of said Charles Darwin the judgment debtor, was calculated to and actually did de- feat, impair, impede and prejudice the rights and remedies of the judgment creditor herein, Adam Brown. That no previous application for an order to show cause has been made. Sworn to before me, this 1 George Henry. day of , 19 . J {Signature and title of officer.) SUPPLEMENTARY PROCEEDINGS 699 Order to Show Cause Why Attachment Should not Issue FORM NO. 413 Order to Show Cause Why Attachment Should not Issue City Court of the City of New York. In the Matter of Supplementary Pro- ceedings: Adam Brown, Plaintiff and Judgment Creditor, against Charles Darwin, Defendant and Judgment Debtor. On the original order for the examination of Charles Darwin, the judgment debtor above named, dated the day of 19 , and on the affidavit of L. M., sworn to the day of , 19 , by which it appears that said order and the affidavit accompanying the same was duly served on said Charles Darwin, the judgment debtor, on the day of ,19 , and on the annexed affidavit of George Henry, sworn to the day of , 19 , by which it appears that said judgment debtor failed to comply with said order and did not appear either personally or by attorney, as in said order required, and on the default of said Charles Darwin as noted on the original order requiring him to appear, it is hereby Ordered that the said Charles Darwin, the judgment debtor above named, appear before me, or one of the Justices of the City Court of the City of New York, at Special Term for Mo- tions in the Courthouse in the Borough of Manhattan, City, County and State of New York, on the day of ,19 , at 10 o'clock in the forenoon of that day and show cause why an attachment should not issue against him as for contempt, and why he should not pay dollars costs of this motion and why the judgment creditor herein 700 Bradbury's lawyers' manual Order to Show Cause Why Attachment Should not Issue should not have such other, further and different relief as may- be proper. :Dated the day of , 19 . Edward F. O'Dwyer, Chief Justice of the City Court of the City of New York. CHAPTER XXXVIII APPEAL ^ FORMS NO. PAGE NO. PAGE 414. Notice of appeal to Appellate 427a. Notice of argument in Court Division from judgment of Appeals 731 rendered on verdict of jury 428. Notice of appeal to Appellate and order denying motion Division of the Supreme for a new trial 702 Court from an order 732 415. Order denying motion for a 429. Appeal to Appellate Division; new trial 706 stipulation as to papers on 416. Stipulation extending time of appeal from an order to the appellant to serve pro- Appellate Division, Su- posed case on appeal 710 preme Court, in lieu of 417. Case and exceptions on ap- certification by the clerk . . 733 peal from Supreme Court, 430. Notice of appeal to the Ap- Trial Term, to Appellate peUate Term from a judg- Division 712 ment of the City Court of 418. Statement under Rule 41 719 the City of New York 733 419. Proposed case 720 431. Notice of argument of appeal 420. Proposed amendments to in Appellate Term from proposed case on ap- judgment of City Court of peal 722 the City of New York ... . 734 421. Notice of settlement of case 723 4.32. Notice of appeal from Munic- 422. Undertaking on appeal 723 ipal Court to Appellate 422a. Notice of argument in the Term of Supreme Court Appellate Division or an from judgment 735 appeal from a judgment. . 725 433. Undertaking on appeal from 423. Order of affirmance in the judgment of Municipal Appellate Division 726 Court to stay execution. . . 736 424. Judgment of affirmance 727 434. Statement under Rule 4 of 425. Notice of appeal to the Court the Appellate Term Rules, of Appeals from judgment First Department, to be of affirmance 728 prefixed to papers on ap- 426. Undertaking on appeal to the peal from Municipal Court, Court of Appeals when a First Department 739 stay of execution of the 435. Notice of argument in the judgment is not desired . . . 729 Appellate Term, First De- 427. Stipulation waiving certifica- partment, on an appeal tion of return on appeal to from a judgment in the Court of Appeals 731 Municipal Court 740 ^NoTE ON Appeal Practice Appeal to the Appellate Division from judgment entered on verdict of jury and order denying motion for a new trial. The following are the steps to carry on an appeal to the Appellate Division 701 702 Bradbury's lawyers' manual Notice of Appeal to Appellate Division FORM NO. 414 Notice of Appeal to Appellate Division from Judgment Rendered on Verdict of Jury and Order Denying Motion for a New Trial New York Supreme Court, New York County. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. Please take notice that the defendant hereby appeals to the Appellate Division of the New York Supreme Court in and from a judgment entered on a verdict of the jury, rendered in the Supreme Court, and an order denying a motion for a new trial. 1. As soon as a verdict is rendered the one against whom the verdict is rendered should move for a new trial on the grounds stated in Code Civ. Pro., § 999. If, however, the motion is made by the defendant it should be for a new trial on all the grounds stated in Code Civ. Pro., § 999, except inadequacy , because the section mentioned provides for a motion to set aside a verdict because of inadequacy, among other grounds, and of course, this is not one of the grounds on which the defendant would move in relation to a verdict against him. This motion can be made at any time during the same term at which the verdict is rendered, but it almost invariably is made as soon as the verdict is rendered. Sometimes the court takes the motion under advisement and hears argument at a later date. When the motion is disposed of, an order should be entered by the defeated party, if it is not entered by his opponent. If the order is not entered in time enough to permit an appeal to be taken from the order at the time the appeal must be taken from the judgment, separate appeals should be taken, if it is desired to review the facts. But they may be consohdated when the case on appeal is made up. 2. If a motion for a new trial is denied, the one against whom the verdict is rendered should, at the same time, move for a stay of execution for thirty or sixty days, and also request thirty or sixty days within which to serve a proposed case on appeal. .3. Order a copy of the stenographer's minutes of the trial at once. 4. Within thirty days from the service on the appellant of the judgment and notice of entry a notice of appeal must be filed in the office of the County Clerk and also served on the attorney for the respondent. It is important that this notice should be served in time as a default cannot be opened. However, if the notice is served on the attorney and there is a failure to file in the office of the County Clerk, this defect may be cured, if properly excused, on a special motion. APPEAL 703 Notice of Appeal to Appellate Division for the First Department, from a judgment entered in the above- entitled action in favor of the above-named plaintiff and against the above-named defendant for the sum of dol- lars, in the office of the Clerk of the County of New York, on the But this practice is dangerous. The notice of appeal should also be served in the same way from the order denying the motion for a new trial. Almost invariably the notice of appeal is from both the order and the judgment in one notice. See the form of notice of appeal in the text. 5. The next step is to make up the proposed case on appeal. Since the rule has been changed allowing the case to be made up by putting in the testimony, just as it appears in the stenographer's minutes, by question and answer, this work has been considerably simplified. The method of doing this is to prepare the entire case and have the printer set it up and furnish proofs in bound form, which is served as the proposed case. In making up the case on appeal from a judgment entered on a verdict in the First Department, the following is the order in which the papers appear: Index; Statement under Rule 41, according to the form in the text; the notice of appeal; summons; complaint; answer; reply (if any); order denying motion for a new trial; extract from minutes; judgment; the case proper, consisting of the evidence, the charge of the trial judge and the exhibits or so much thereof as it is decided to print. The case consists of the proceedings had at the trial. On the first page is the title of the case and a statement that the case came on before Mr. Justice and a Jury at Trial Term, Part , on the day of , 19 . Appearances: Adam Brown, attorney for the plaintiff. Chas. Darwin, attorney for the defendant. From this point on the case follows the stenographer's minutes. In making up the proposed case on appeal, however, each line of the case proper must have a number in the left-hand margin. This is for the purpose of proposing amend- ments to the case. AU legal printers now furnish cases with these lines numbered in the proofs which they supply. The proposed case made up as suggested, see Form No. 417, at p. 712, must be served on the attorney for the respondent within the time allowed by the trial judge, which is usually thirty or sixty days. This time runs from the time the judgment with notice of entry is served on the appellant's attorney. If the trial judge does not grant any time to serve the proposed case, the time in which it can be done is governed by Rule 32 of the General Rules of Practice. This rule pro- vides, that if the trial was before a jury, a proposed case must be served within thirty days after notice of the decision for a motion for a new trial, if such motion was made, and was not decided at the time of the trial, or within thirty days after service of a copy of the judgment and notice of its entry. . The appellant should not permit himself to get in default in serving the pro- posed case, as the consequences might be very embarrassing. Usually an exten- sion of time can be secured to serve the proposed case, by stipulation, from the attorney for the respondent. But if this is refused, a motion should be made at Special Term for an extension on two days' notice of motion, and should be made 704 beadbury's lawyers' manual Notice of Appeal to Appellate Division day of ) 19 , and also from an order entered in the above-entitled action in the office of the Clerk of the County of New York on the day of , 19 , deny- ing the defendant's motion for a new trial, and from each and long enough ahead so it comes up for argument before the appellant is in default. See Rule 32, General Rules of Practice. 6. While no bond is required to perfect an appeal to the Appellate Division, nevertheless if the appellant desires to stay execution beyond the temporary stay granted by the trial judge, it wiU be necessary to secure a bond on appeal in accordance with the form of the text'; and if it is decided to supply this bond, it should be served before the temporary stay granted by the trial judge has ex- pired. The bond or undertaking need not be approved but the sureties may be compelled to justify. Code Civ. Pro., § 1335. 7. The proposed case on appeal having been completed, as above recited, it should be served on the attorney for the respondent prior to the expiration of the time of the appellant to so serve it. 8. Within ten days after the proposed case is served the attorney for the re- spondent must serve on the attorney for the appellant any proposed amendments which he may desire to make to the case. If no such amendments are served the case is automatically settled as served. 9. Within four days thereafter the attorney for the appellant must serve on the attorney for the respondent a notice that the case with the proposed amendments will be submitted to the trial judge at a time and place specified in the notice, for settlement, not less than four nor more than ten days after the date of service of notice. 10. On the day mentioned for the submitting of the proposed case and proposed amendments to the trial judge, the attorney for the appellant should submit to the trial judge the proposed case with the admission of service of the copy thereof endorsed thereon by the respondent's attorney, or an affidavit of service of the copy on the respondent's attorney, and should also submit to the trial judge the proposed amendments served upon the appellant's attorney by the respondent's attorney. But before submitting said proposed amendments the attorney for the appellant should indicate thereon the amendments which he allows and those which he disallows. The same party must also plainly mark upon the proposed amendments and upon the stenographer's minutes, the parts to which the pro- posed amendments are applicable, together with the number of the amendments. Of course the original stenographer's minutes should also be submitted to the trial judge with the proposed case. 11. After the trial judge has passed upon the amendments and settled the case, it is the practice for the attorney for the appellant to take the papers, which will be delivered to him by the clerk of the part where the trial was had, and proceed at once to have the case printed in accordance with the settlement made by the trial judge. After the cases are printed, it is the practice to have a stipulation as to the settlement of the case, in accordance wth the forms in the text, signed by the attorneys for both parties and then two copies ai-e presented to the judge for his signature. After these two copies are signed by the judge, one is filed in the APPEAL 705 Notice of Appeal to Appellate Division every part of said judgment and order, on both questions of law and questions of fact. Dated the day of , 19 . Yours, etc., George Henry, Attorney for Defendant, Appellant. To: The Clerk of the County of New York; Ely Franklin, Esq., Attorney for Plaintiff, Respondent. office of the clerk where the judgment roll is filed, and the other is filed in the office of the clerk of the Appellate Division. After the order is signed by the trial judge in the back of the appeal book, three copies of the appeal book are served on the attorney for the respondent, who usually endorses therein an admission of service. This admission of service is usually contained in the original copy con- taining the signature of the trial judge. This original, with the admission of service of three copies on the respondent's attorney, with nineteen other copies, must be filed in the office of the clerk of the Appellate Division within twenty days after the settlement of the case by the Trial Judge. Rule 41, Gen. Rules of Prac. If the attorney for the respondent refuses to stipulate as to the correctness of the case on appeal, it will be necessary for the attorney tor the appellant to secure the case to be certified by the County Clerk in whose office the judgment roll is filed. This, however, is rarely done as almost invariably the attorney stipulates. If it is necessary to secure the clerk's certification it probably will also be necessary to secure an extension of time to file the case. 12. Within twenty days after the papers upon which an appeal is to be heard, have been filed with the clerk of the Appellate Division, in the First Depart- ment, the appellant must file with the clerk eighteen printed copies and serve upon the attorney for the respondent three printed copies of the points to be relied upon by him on the argument. The practice is, to serve three printed copies of the points on the attorney for the respondent, and secure his admission of service and then file nineteen copies of the points, with the clerk of the Appel- late Division, in addition to the one with the admission of service. When the papers are filed in July, August or September, it Ls not necessary to file the points until fifteen days after the first Tuesday in October. Rule 6, AppeUate Division Rules of the First Department. 13. Withiii ten days after the respondent has served on the appellant the printed points as abqve, the respondent must serve on the attorney for the appellant three printed,copies of his answering points and serve on the clerk eighteen printed copies of his points. 14. If the appellant desires to present points in reply to those filed on the re- spondent, he may do so by serving on his opponent within five days after receipt 706 bbadbury's lawyers' manual Order Denying Motion for a New Trial FORM NO. 415 Order Denying Motion for a New Trial At Trial Term, Part 16, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Thomas F. Donnelly, Justice. Adam Brown, Plaintiff, against Charles Darwin, Defendant. A jury, at Part 16, of the Trial Term of the New York Su- preme Court, held in and for the County of New York, having of the opponent's points, three printed copies of such points in reply and file with the clerk eighteen copies of such replying points. 15. Either party may serve a notice of argument, in accordance with the form in the text, at any time after the printed papers on appeal have been filed. This notice of argument must be served at least eight days before the date of the argu- ment, but in the First Department the argument can be noticed for any day of the term. The notice of argument must have endorsed thereon admission of service by the opposing attorney, or an affidavit of service. With the notice of argument must be served a note of issue, which states the title of the case, the nature of the appeal, the date the notice of appeal was served, and the names of the respective attorneys for the appellant and respondent. This note of issue is filed with the clerk, with the notice of argument and proof of service of the notice of argument on the attorney for the opposite party, at least eight days before the case is noticed for argument. It will be noted that thirty-five days may lapse before the briefs or points are exchanged after the papers are filed. That is, the appellant has twenty days after the papers are filed to file and serve his points. The respondent has ten days thereafter to serve and file his points. The appellant then has five days more to serve and file replying points. If therefore the notice of argument should be filed immediately upon the filing of the papers on appeal and the calendar was reasonably up to date, the case might be reached before the time expired for fiUhg the briefs or points. In actual practice, however, the notice of argument is not usually served until about the time the appellant's points are filed, If the case should come up on the calendar APPEAL 707 Order Denying Motion for a New Trial rendered a verdict in the above-entitled action in favor of the plaintiff and against the defendant for the sum of dollars, on the day of , 19 , and the defendant having duly moved to set aside said verdict and for a new trial before the time has expired for the parties to exchange and file points, the court would undoubtedly adjourn the case, on the application of either party, for the purpose of fihng such points. It should be observed also that the schedule given here is for the First Department and that in the other Departments special rules are made in regard to the serving and filing points. The time within which the papers, on which the appeal is heard, must be filed, with the exception of the points, is the same in all the Appellate Divisions and is governed by Rule 41 of the General Rules of Practice. That is, they must be filed within twenty days after the settlement of the case. That is, one of the printed copies containing the trial judge's signature is thus filed. Where there is no special provision in the rules of a particular department as to the fihng of briefs or points, the points must be filed before the beginning of the argument and each party must hand to his opponent three copies of his points before the beginning of the argument. Rule 43 of General Rules of Practice. ' Below will be found the provisions of the rules of the various other departments of the Appellate Division in relation to fihng points : In the Second Department at least five days before the first day of the term, the appellant must file with the clerk seventeen printed copies and serve on the attorney for the respondent three printed copies of the points to be rehed upon by him in the argument. Within five days after the service on the attorney for the respondent of the appellant's points, the respondent must file with the clerk seventeen printed copies and serve on the attorney for the appellant three printed copies of the answering points. If the appellant desires to serve replying briefs, he must file with the clerk seventeen printed copies thereof and serve three printed copies upon the attor- ney for the respondent within three days after the receipt of the respondent's points. There is no special provision in the Second Department as to the order in which the papers shall be arranged, and therefore the order specified in the First Department is used. In the Second Department, however, the custom is not to repeat the title of the action in any of the papers, after the statement under Rule 41 of the General Rules of Practice. In the First Department the custom is to place the title in fuU on all papers. In the Third Department at least twenty days before the term of the Ap- pellate Division on which the case may be noticed for argument, the appellant shall serve upon the attorney for the respondent, three printed copies of his briefs upon which he intends to rely in the argument. At least eight days be- fore said term, the respondent shall serve upon the attorney for the appellant, three printed copies of his answering points. If the appellant desires to make replying briefs, he must serve them on the attorney for the respondent at least three days before said term. Such service may be made either personally or by 708 Bradbury's lawyers' manual Order Denying Motion for a New Trial on all the grounds stated in § 999 of the Code of Civil Procedure, except inadequacy, Now, after hearing George Henry, Esq., attorney for the defendant in favor of said motion, and Ely Franklin, Esq., mail, but if service is made by mail this does not extend the time within which the answering briefs may be served. In the Third Department, thirteen copies of the appellant's papers and points must be delivered to the clerk before he commences the argument, but of course the one copy of the printed record must be fUed in the office of the clerk within twenty days after the case is settled, under Rule 41 in the General Rules of Practice, this being one of the copies containing the trial judge's signature. There is no special rule in the Third Department for the order in which the papers shall be arranged and therefore the arrangement hereinbefore specified in the First Department is sufficient. In the Fourth Department within fifteen days after the service of the printed papers as required by Rule 41, the party whose duty it is to furnish those papers shall file sixteen printed copies and sixteen printed copies of his brief, and shall at the same time serve on the attorney for the opposing party, three copies of the papers and- his brief. Within seven days thereafter the opposing party shall file with the clerk sixteen printed copies of his brief and serve on the attorney for the opposite party, three printed copies of his brief. If either party shall fail to serve or file his brief as required, he shaU not be heard upon the argument, but judg- ment may be entered against him as upon default. If the appellant desires to serve replying briefs, he shall file with the clerk sixteen printed copies and serve upon the attorney for the opponent, three printed copies within five days after the receipt of his opponent's brief. Rule 9 of the special rules of the Appellate Division, Fourth Department. In the Fourth Department a case may be noticed for argument for any day of the term, and may be added to the calendar after the printed records have been filed, by filing with the clerk a note of issue and notice of argument with proof of service at least eight days before the case is set for ai-gument. The follomng are the various steps on an appeal from a judgment at Special Term: At the end of a trial at Special Term the court usually requests that proposed findings of fact and conclusions of law be submitted by both sides. Sometimes this request is not made until the matter is decided and then the prevailing party is requested to submit findings. The party who is not successful may also sub- mit proposed findings and is entitled to have the findings marked by the Trisd Justice either granting or refusing each finding. In making up the record on appeal the proposed findings, with the action of the trial judge thereon, should be contained in the record. After the findings have been made and filed by the trial judge, including the proposed findings of the defeated party with the judge's markings thereon, the unsuccessful party should file a notice of exceptions, both to the findings made by the trialjudge and the refusal of the trial judge to find as proposed in the de- feated party's proposed findings. This notice of exception must be served and APPEAL 709 Order Denying Motion for a New Trial attorney for the plaintiff, in opposition thereto, and due delib- eration having been had, it is Ordered that said motion be and the same hereby is denied. Enter, T. F. D., J. S. C. filed within ten days after service on the attorney for the defeated party of the decision or findings and notice of entry. This notice of exception forms the basis of the appeal, but of course a notice of appeal from the decree must be served and filed in addition. A decree is entered after the findings have been settled. The defeated party must serve a notice of appeal on the attorney for the pre- vailing party and file the same in the office of the County Clerk within thirty days after a copy of the decree with a notice of entry has been served on the defeated party. The steps from that time on are the same as specified in the directions for the making of a case after a jury trial. The time within which a case may be made, begins to run from the time of the service on the attorney for the defeated party of the decree from which the appeal is taken, and every step thereafter is exactly the same as it is in taking an appeal from a judgment entered upon a jury's ver- dict, provided it is desired to appeal on both questions of law and questions of fact. If only certain questions of law are to be raised this may affect the amount of the testimony which is printed in the case. But unless the scope of the ap- peal is thus limited, all the testimony should be printed and so much of the ex- hibits as is deemed important. Number of copies printed. In printing a case on appeal from a judgment to the Appellate Division, it is usual to have thirty copies printed unless there are two or more respondents who appear by different attorneys. If there are a number of respondents who all appear by one attorney it is only necessary to serve three copies on that attorney, but if there are a number of respondents who appear by different attorneys, of course, it is necessary to serve three copies of the printed case on the attorney for each respondent. Also if it is contemplated that the case may go to the Court of Appeals it is advisable to have sixty copies of the case printed, because the same case can be used in the Court of Appeals, by adding to the end of the case the order of affirmance, or reversal, of the Appellate Division, also the judgment of reversal or affirmance, the notice of appeal to the Court of Appeals and the opinion of the Appellate Division, or an affidavit that no opinion was rendered, together with a certificate by the clerk or a stipulation waiving certification by the clerk. The stipulation waiving certification would be in the form stated in the text. Entering judgment after appeal. A certified copy of the order of the Appellate Division affirming or reversing a judgment is filed in the office of the clerk of the county where the original judgment or order was entered. Thereupon a judgment of affirmance or reversal is entered in the office of the clerk of the County where the original judgment is filed in accordance with the forms in the text. The ap- 710 Bradbury's lawyers' manual Stipulation Extending, Tiine of Appellant to Serve Proposed Case on Appeal FORM NO. 416 Stipulation Extending Time of Appellant to Serve Proposed Case on Appeal Supreme Court, Appellate Division, First Department. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. It is hereby stipulated that the time of the appellant to serve a proposed case on appeal in the above-entitled action peal to the Court of Appeals is taken from the judgment of affirmance as entered in the County Clerk's office. Court of Appeals. The time to appeal to the Court of Appeals is sixty days after service upon the attorney for the appellant of a copy of the judgment or order ap- pealed from and a written notice of the entry thereof. Code Civ. Pro., § 1325. The notice of appeal must be served on the attorney for the respondent and filed in the office of the clerk where the judgment from which the appeal is taken is entered. As already seen, after a judgment is affirmed or reversed by the Ap- pellate Division the judgment of reversal is filed in the office of the County Clerk. The notice of appeal from a judgment to the Court of Appeals therefore is filed in the County Clerk's office. To render a notice of appeal to the Court of Appeals effectual for any purpose (except in a case where it is especially prescribed by law that security is not necessary) the appellant must give a written undertaking to the effect that he will pay all costs and damages which may be awarded against him on the appeal not exceeding $500. The appeal is perfected when such an undertaking is given and a copy thereof with notice of the fiUng thereof is served on the attorney for the respondent. Code Civ. Pro., § 1326. Such an undertaking as is specified above does not stay the execution of the judgment, but only perfects the appeal. If the appellant desires to stay the execution of the judgment he must give a further undertaking in the same form as that provided for staying a judgment on an appeal from a judgment below to the Appellate Division of the Supreme Court. Code Civ. Pro., § 1327. Both of the undertakings specified above may be given in one instrument. Code Civ. Pro., § 1334. It is not necessary that the under- taking should be approved, but the attorney for the respondent may except to the sufficiency of the sureties in which case they must justify. Code Civ. Pro., § 1335. The return in the Court of Appeals which consists of the same papers that were APPEAL 711 Stipulation Extending Time of Appellant to Serve Proposed Case on Appeal be and hereby is extended twenty days from the day of , 19 . Dated the day of , 19 . Ely Franklin, Attorney for Plaintiff, Respondent. George Henry, Attorney for Defendant, Appellant. used in the Appellate Division, on an appeal from a judgment, to which are added the order of the Appellate Division, the judgment entered on such order, the opinion of the Appellate Division, or an affidavit that no opinion was rendered, and the certification by the clerk or the stipulation of the parties and this return must be filed in the office of the clerk of the Court of Appeals within twenty days after the appeal is perfected, which means after the notice of appeal and the undertaking on appeal are properly served. Code Civ. Pro., § 1315. Most at- torneys prepare the papers ready to have them stipulated or certified before the notice of appeal is served and therefore they have more time in which to prepare them. The rule as to service of the return is strictly enforced by the Court of Appeals. Rule 1, Court of Appeals Rules. In making up the return to the Court of Appeals the papers used below are used in this court with the additions hereinbefore stated and they must be bound in light colored paper. Rule 5, Court of Appeals Rules. Within forty days after the appeal is perfected the appellant must serve three copies of the printed papers on appeal on the adverse party. Rule 6, Court of Appeals Rules. The appellant must file eighteen additional copies of the papers on appeal with the clerk of the Court of Appeals, but this is not done as a rule until a new calen- dar is made up and the case has a number. The clerk of the court requests that the eighteen copies should not be sent until after the case has a calendar number. At least twenty days before a case is placed on the day calendar the appellant shall file with the clerk eighteen printed copies of the case, and shall, at the same time, serve on the attorney or counsel for the respondent three printed copies of the points to be relied on by the appellant. Rule 7, Court of Appeals Rules. Within ten days after such service the respondent shall file with the clerk eighteen copies and serve on the attorney or counsel for the appellant three printed copies of his points. Rule 7, Court of Appeals Rules. If the appellant desires to present points in reply he shall file with the clerk eighteen copies thereof and serve three printed copies on the attorney or counsel for the respondent within five days after receipt of the respondent's points. Rule 7, Court of Ap- peals Rules. On an appeal to the Appellate Division from an order made upon a motion, the first step after the order is served on the attorney for the defeated party, with notice of entry, is to file a notice of appeal, within thirty days after the service of said order, which notice of appeal must be filed in the office of the clerk where the 712 Bradbury's lawyers' manual Case and Exceptions on Appeal from Supreme Court FORM NO. 417 Case and Exceptions on Appeal from Supreme Court, Trial Term, to Appellate Division The following is the order of the papers on an appeal from a judgment entered on a jury verdict: Index; Statement under Rule 41; Notice of Appeal; Summons; Complaint; Answer; order appealed from is filed and also served on the attorney for the prevailing party. Most practitioners, before filing or serving the notice of appeal from an order, send the papers to the printer so they can secure a proof thereof to be submitted to the attorney for the respondent for his approval, so they wiE not be pressed for time in supplying the printed papers. This is because the time within which the printed papers must be filed and served begins to run from the time the notice of appeal is served. The papers on which the appeal is heard consist of the state- ment under Rule 41 of the General Rules of Practice, the notice of appeal, the order from which the appeal is taken and all the papers on which the motion was heard, and also the opinion of the court below. There must also be prefixed an index. These papers must be printed and three copies thereof served on the attorney for the respondent and nineteen copies filed in the office of the clerk of the Ap- pellate Division within fifteen days after an appeal is taken. The practice is to send the papers to the printer at once, when it is decided to take the appeal, and secure proofs thereof from the printer. These proofs are submitted to the attor- ney for the respondent for his approval to avoid the necessity of paying the ex- pense of having the papers certified by the clerk. Upon the approval being secured from the attorney for the respondent the papers are then sent to the printer and printed. Of course, care should be taken to serve and file the notice of appeal within the thirty days required by the Code. When the papers are returned from the printer there should be a stipulation that they are correct copies of the papers on which the appeal is to be heard in accordance with the form in the text, which should be signed by the attorneys for both the parties. No approval by any judge is required. As soon as the papers are printed and the stipulation is signed three printed copies are served on the attorney for each one of the respondents and nineteen copies are filed with the clerk of the Appellate Division with the admission of service of three copies on the respondent's attorney. If there is only one respondent it is usual to print thirty copies of the appeal papers, but if there are a number of respondents it is sometimes necessary to print forty copies, provided the respondents appear by different attorneys. After the printed papers are filed in the office of the clerk of the Appellate APPEAL 713 Case and Exceptions on Appeal from Supreme Court Reply (if any); Order denying motion for a new trial; Extract from minutes; Judgment; Case containing testimony taken at the trial, Judge's Charge and exceptions thereto; Exhibits. Stipulation in the following form : It is hereby stipulated that the foregoing case contains all the evidence given upon the trial of this action and that Division, either party can bring the matter on on any day designated as a motion day by the Rules of the Appellate Division. At least eight days' notice of the argument must be given. When the notice of argument, with admission of service, is filed with the Appellate Division there must also be filed a note of issue in accordance with the form in the text. The question of exchanging briefs is governed by special niles in the various appellate divisions. If there are no special rules in relation to appeals from orders the matter is governed by Rules 41, 42 and 43 of the General Rules of Practice. By Rule 43, it is provided that at the beginning of the argument of any appeal the party whose duty it is to furnish the papers shall deUver to the Clerk thirteen copies thereof and each party shall deliver to the clerk thirteen copies of his brief and points. By Rule 42 of the General Rules of Practice it is provided that the Appellate Division in any department may make such rules in relation to the exchange of briefs and the delivery of papers to the justices thereof as they may deem expe- dient in all cases whether enumerated or not enumerated. The various appellate divisions have made such rules. In the First Department it is provided in Rule 4 of the Special Rules of the Appellate Division of the First Department, that the appellant must file with the Clerk of the Appellate Division, at least eight days before the day upon which an appeal from an order shall have been noticed for argument, a note of issue which shall state the day upon which the notice of appeal shall have been served, to- gether with nineteen copies of the papers upon which the appeal is to be heard, printed as required by Rule 41 of the General Rules of Practice, with an affidavit showing the service of three printed copies thereof upon the attorney for the respondent, together w'ith a notice of argument of the appeal, with admission or proof of service. In the First Department, the briefs on an appeal from an order are submitted to the clerk on the day of the argument and are also exchanged by the attorneys for the respective parties, prior to the beginning of the argument. In the Se'cond Department, it is provided that seventeen copies of the appeal papers and points must be delivered to the clerk before the commencement of the argument, and there are no other special provisions in the Second Department except as specified above. Briefs therefore must be exchanged prior to the com- mencement of the argument. In' the Third Department, the note of issue must be filed five days before the date of the argument, on an appeal from the order, under Rule 1 of the Special Rules of the Appellate Division, Third Department, and the notice of argument must be served eight days prior to the day fixed for the argument, in accordance 714 Bradbury's lawyers' manual Case and Exceptions on Appeal from Supreme Court the same be settled and ordered to be filed and annexed to the judgment roll. Dated the day of , 19 . E. F., ^ Attorney for Plaintiff, Respondent. C. H., Attorney for Defendant, Appellant. with the General Rules of Practice. In the Third Department there are no special rules as to the exchange of briefs on appeals from orders, therefore the general rule prevails that there must be an exchange before the argument begins. In the Fourth Department, there is no special rule as to the exchange of briefs on appeals from orders, and therefore the provision of the General Rules prevails that they must be exchanged before the argument is begun. In the Fourth Department, the note of issue on an appeal from an order must be filed with the clerk at least eight days before the day of the argument. Rule 1, Special Rules, Appellate Division, Fourth Department. , Under the same rule the papers on which the appeal must be heard must be filed with the clerk at the time the note of issue is filed. Appeal from City Com-l of the City of New York to Appellate Term, of Supreme Court. An appeal from a judgment or order of the City Court of the City of New York to the Appellate Term of the Supreme Court, First Department, must be filed and served within ten days after service of a copy of the judgment or order appealed from in a written notice of entry. Code Civ. Pro., § 3190. The practice in making up papers on appeal from a judgment entered on the verdict of a jury is the same in the City Court of the City of New York as it is on an appeal from a similar judgment from the Supreme Court to the Appellate Division, as Titles First, Third and Fourth of Chapter 12 of the Code of Civil Procedure are made applicable to such appeals by § 3190 of the Code of Civil Procedure, which relates specifically to the City Court of the City of New York. The Code (§ 3188) provides that an appeal may be taken to the AppelUde Division from the Citj' Court of the City of New York, but by statute and rule it is provided that such appeals may be heard in the manner in which the Appellate Division determines and the Appellate Division has determined that they shall be heard at the Appellate Term. Therefore the notice of appeal usually reads that an appeal is taken to the Appellate Division, Supreme Court, First Department, to be heard at the Appellate Term thereof. In making up the record on appeal the same order should be followed as is pre- scribed by the First Department in taking an appeal from a judgment entered on a verdict of a jury. As the Appellate Term, however, only requires that ten copies of the record on appeal be filed, it usually is not necessary to print more than twenty copies of the record, instead of thirty copies as is usual on an appeal from the Supreme Court. The record on appeal must be certified by the clerk of the City Court under Code Civ. Pro., § 3194 a, or it may be stipulated by the parties in the same way that it is stipulated in the Supreme Court, and the stipulations APPEAL Case and Exceptions on Appeal from Supreme Court Annexed to the above stipulation is the order setthng the case and ordering it on file in the following form : Upon the above stipulation the foregoing case containing all the evidence is hereby settled and ordered on file. Dated the day of , 19 . Thomas F. Donnelly, Justice of the Supreme Court of the State of New York. in the forms for practice on an appeal from the Supreme Court apply to the City Court. The printed record on appeal, with ten copies of the record must be filed with the clerk of the Appellate Term, First Department, with proof of service of three copies of the printed record on the attorney for the respondent at least ten days before the first day of the term. Rule 2, Appellate Term, Rules, First Depart- ment. The return which is filed with the clerk must also contain the affidavit of service or admission of service of three copies on the attorney for the respondent. The briefs of the attorneys on appeals to the Appellate Term in the City Court must be printed in accordance with Rule 43 of the General Rules of Practice and the ten copies of the appellant's brief must be filed with the clerk on or before the Monday preceding the first day of the term at which the appeal is noticed for argument, and at the same time the appellant must serve one copy of his points upon the attorney for the respondent, and file proof of such service with the clerk of the Appellate Term. The attorney for the respondent must serve a copy of his points on the attorney for the appellant and file ten copies of his points with the clerk of the Appellate Term, with proof or admission of service of one copy on the attorney for the appellant, before twelve o'clock noon on the Saturday preceding the first day of the term. The points which are filed must indicate the number of the appeal on the calendar published in the New York Law Journal. A notice of argument of the appeal must be served and filed with proof or admis- sion of service at least eight days before the first day of the term. This appUes to both appellant and respondent. Upon an appeal from the City Court the judgment or order of the court shall be entered in the office of the clerk. of the Supreme Court. Rule 2, Appellate Term, Rules, First Department. Municipal Court of the City of New York. An appeal from the Municipal Court of the City of New York may be taken by fiUng a notice of appeal with the clerk within twenty days after the entry of the judgment or order from which the appeal is taken. Mun. Ct. Code, § 156. It should be observed that in the Municipal Court of the City of New York it is not necessary to serve a copy of the judgment or order with notice of entry to start the time running within which an appeal may be taken. The time starts when the judgment or order is entered in the office of the clerk. Under § 167 of the Municipal Court Act it is only necessary to file this notice of appeal in the office of the clerk and the clerk is required to give notice thereof to -the respondent or to his attorney, in the manner prescribed by the Municipal 716 Bradbury's lawyers' manual Case and Exceptions on Appeal from Supreme Court Following is a stipulation waiving certification, in the follow- ing form: Pursuant to § 3301 of the Code of Civil Procedure it is hereby- stipulated that the foregoing, consist of true and correct copies Court rules. By Rule 25 of the Municipal Court rules the clerk immediately upon the filing of a notice of appeal must send a postal card to the attorney for the respondent, addressed to his office, or where the respondent has not appeared by attorney by sending a postal card to the respondent at his address, which appears on the papers, and the clerk must enter a minute in his docket book of aE such appeals and of sending notice. An undertaking on an appeal from the Mimicipal Court judgment is not neces- sary to perfect the appeal, but if the appellant desires to stay the execution of the judgment he must furnish an undertaking which must be at least twice the amount of the judgment and in no case less than $100. Mun. Ct. Act, § 159. Upon applying for the minutes of a stenographer of a Municipal Court the appellant must deposit with the clerk, within five days after the filing of the notice of appeal, a sum sufficient to cover the stenographer's minutes and upon the minutes being supplied, the clerk shall pay the fee therefor to the stenog- rapher. Within ten days after such deposit the stenographer must file the tran- script of the minutes with the clerk. Rule 26, Municipal Court Rules. When the clerk receives the minutes from the stenographer he sends notice of that fact to the attorney for the appellant, or the appellant in person, if the ap- pellant has not appeared by attorney. The appellant or his attorney must then procure the case to be settled on a written notice of at least three days to the clerk and to the attorney for the respondent or to the respondent in person, if he has not appeared by attorney, which notice must be returnable before the justice who tried the case. The clerk must thereupon make a return to the Appellate court which consists of the summons, pleadings, evidence and judgment or final order and all other necessary papers and proceedings, and annexed thereto the opinion of the court, if any, and the notice of appeal. The justice before whom the case is tried shall, within five days from the date of the submission to him of the case on appeal, settle the case and endorse his settlement on the return. The clerk must thereupon cause the case to be filed with the clerk of the Appellate court. Mun. Ct. Act, § 161. If no testimony was taken, so that a settlement of the case was not required, the return shall be made by the clerk forthwith, upon filing the notice of appeal. Such return shall contain the judgment, order or final order appealed from and all the original papers upon which the judgment, order or fihng of the order was made, duly authenticated by the certificate of the clerk having the custody thereof or copies thereof duly certified by such clerk shall have annexed thereto the opinion of the court, if any, on the notice of appeal. Upon appeal from a judgment the attorney must furnish to the clerk upon the settlement of the case typewritten copies of all the papers which are to be used in making up the case and this must be on paper 8 inches wide and lOJ^ inches long and bound on the left hand edge, with an appropriate index and in the following order: A statement showing the court and district from which the appeal is taken, the APPEAL 717 Case and Exceptions on Appeal from Supreme Court of the notice of appeal, judgment roll, order denying motion for a new trial, case and exceptions as settled and of the whole thereof now on file in the office of the Clerk of the County of New York and certification thereof by the Clerk of said county, pursuant to § 1353 of the Code of Civil Procedure is waived. Dated the day of , 19 . E. F., Attorney for Plaintiff, Respondent. C. H., Attorney for Defendant, Appellant. date of entry of the judgment, final order or order appealed from, the date of the beginning of the action and the service of the respective pleadings, the names of the original parties in fuU and any change in the parties, if such has taken place, the names of the attorneys appearing for the respective parties on the appeal. Next comes the notice of appeal. Summons. Complaint. Answer. Bill of particulars (if any). Any intermediate order, and the papers on which the same is based, if brought up for review by the notice of appeal. The judgment. Final order or order appealed from. The original transcript of the stenographer's minutes, and in the minutes of the stenographer the lines thereof must be consecutively numbered on the left hand margin. Copies of the exhibits in the order in which they are marked unless they are voluminous and only a part of their contents are material, in which case the par- ties may stipulate or the justice may, upon notice, settle a statement respecting the same or the parts thereof to be returned upon appeal. The opinion ofthe court, or a statement that there was no opinion rendered. The settlement and allowance of the case by the trial justice. The certificate of the clerk, which certificate may be made by the stipulation of the respective parties or their attorneys. The briefs on appeal from the Municipal Court, First District, may be either printed or typewritten, but if typewritten they must be on paper 8 by 10^ inches and bound on the left hand edge. Rule 5, Appellate Term Rules, First Depart- ment. In bringing a case on for argument a notice of argument must be served at least eight days before the first day of the teiTn, which notice of argument must contain proof of service or an admission of service on the attorney for the other party. The appellant must file three copies of his points and serve one copy of his points on the attorney for the respondent, on or before the Monday preceding the 718 Bradbury's lawyers' manual Case and Exceptions on Appeal from Supreme Court Immediately following the above is the order directing the case to be filed in the office of the Clerk of the Appellate Divi- sion in the following form : Pursuant to § 1353 of the Code of Civil Procedure it is Ordered that the foregoing printed record be filed in the office of the Clerk of the Appellate Division of the Supreme Court in and for the First Judicial Department. Dated the day of , 19 . Thomas F. Donnelly, Justice of the Supreme Court of the State of New York. If an opinion was rendered in the court below in any matter in relation to the appeal, a copy of the opinion should be appended. If there was no opinion rendered there should be an affidavit in the following form : State of New York 1 County of New York J G. H., being duly sworn, deposes and says that he is the attorney for the appellant herein. That no opinion was ren- dered or given by the Justice of the Trial Term herein. Sworn to before me, this day of , 19 . {Signature and title of officer.) G. H. first day of the term at which the appeal is noticed for argument, and on these points the number of the case on the calendar as published in the Law Journal must be inserted. Not later than twelve o'clock noon on the Saturday preceding the first day of the term the respondent must serve a copy of his points on the attorney for the appellant and file three copies with the clerk, and these points must also have indicated thereon the number of the case on the calendar as pub- lished in the Law Journal. The name of the attorney who is to argue the appeal should appear at the top right hand corner of the first page of the points. Rule 5, Appellate Term Rules, First Department. Upon an appeal from an order granting or denying a motion for a new trial upon the' ground of fraud or newly discovered evidence the stenographer's minutes usually shall be included in the return of the clerk and the provisions as to fur- nishing the stenographer's minutes shall apply to such an appeal. Mun. Ct. Code, §161. APPEAL 719 Statement Under Rule 41 FORM NO. 418 Statement Under Rule 41 ' Supreme Court, Appellate Division, First Department. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. This action was begun by the service of the sunomons without a complaint on the defendant on the day of , 19 . The defendant appeared by his attorney, G. H., on the day of , 19 , and demanded a copy of the complaint. The complaint was served on the defendant's attorney on the day of , 19 . The answer was served on the plaintiff's attorney on the day of , 19 . The names of the original parties are stated in full above and there has been no change of parties since the action was begun. (// there has been any change in parties, such as the death of a party and the substitution of his representatuve, either plaintiff or defendant, state the names of the present parties in the title above and then at this place state who the original parties were and what changes have been perfected.) (It is not uncommon to give much more information than is contained in the foregoing statement under Rule 4-1 , but this is all that the rule requires and is all that is necessary.) '■ In the printed record as finally made up the above statement under Rule 41 of the General Rules of Practice is the first document immediately following the index. See Form No. 417 for order of papers. 720 beadbury's lawyers' manual Proposed Case FORM NO. 419 Proposed Case The following is the form of proposed case which follows the papers before enumerated (see Form No. 417) in making up the record on appeal to the Appelate Division from a judg- ment entered on the verdict of a jury. 1 New York Supreme Court, New York County. 2 Adam Brown, 3 Plaintiff, 4 against 5 Charles Darwin, 6 Defendant. 7 The above-entitled action came on for trial before Hon. 8 Thomas F. Donnelly, Justice, and a jury, at Trial Term, 9 Part 16, of the New York Supreme Court, held in and for 10 the County of New York, at the County Courthouse therein, 1 1 on the day of , 19 . 12 Appearances : 13 Ely Franklin, attorney for the plaintiff. 14 George Henry, attorney for the defendant. 15 A jury was examined, found satisfactory and duly sworn. 16 The case was opened to the jury, on behalf of the plain- 17 tiff, by Mr. FrankUn, and on behalf of the defendant by 18 Mr. Hemy. 19 The defendant moved to dismiss the complaint on the 20 ground that it failed to state facts sufficient to constitute a 21 cause of action, and after argument the motion was denied 22 and the defendant excepted. 23 The plaintiff then moved for judgment on the pleadings 24 on the ground (here state specifically the ground on which the 25 motion was made) . The motion was denied and the plaintiff 26 duly excepted. APPEAL - 721 Proposed Case 1 (State any other motions which were made at the opening of 2 the case. A motion based on the opening of counsel for either 3 party, cannot be entertained unless such opening has been 4 taken down by the stenographer.) 5 Adam Brown, called as a witness on behalf of the plain- 6 tiff, testified as follows : 7 Direct examination by Mr. Franklin: 8 Q. Are you the plaintiff in this action? A. Yes. 9 Q. Where do you reside? A. No. , 10 Street, Borough of Manhattan, City, County and State of 11 New York. 12 Q. Do you know the defendant, Charles Darwin? A. Yes. 13 Q. When and where did you first meet him? A. At No. 14 , Street, New York City, on the 15 day of , 19 . (Here should follow the entire testimony given at the trial, or such portions of the testimony as the appellant's counsel deems necessary for the review of the judgment or order. The Trial Court may later determine that other testimony is necessary if the re- spondent's counsel insists that it be inserted. The entire proceed- ings at the trial should be thus shown, including the objections and exceptions and the remarks of the court, the motion to dismiss or direct a verdict at the end of the plaintiff's case and again at the end of the entire case; the Charge of the Trial Judge, the requests to charge, the exceptions to the charge; the verdict rendered by the jury, the motion for a new trial, the denial thereof, if it was denied, the exception of the defeated party, and all other proceedings which were had at the trial and also the exhibits, or so much thereof as it is proposed to print in the appeal papers. (The numbers of the lines in the left hand margin are omitted when the case is finally printed after being settled by the trial judge.) (See Form No. 417 for order in which the case proper appears in the printed record as findlly made up.) 722 Bradbury's lawyers' manual Proposed Amendments to Proposed Case on Appeal FORM NO. 420 Proposed Amendments to Proposed Case on Appeal Supreme Court, Appellate Division, First Department. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. Please take notice that the respondent herein hereby proposes the following amendments to the proposed case on appeal herein: First Amendment: At page 4, line 19, of said proposed case, strike out the words "and the." (See Steno. Min., page 25.) Second Amendment: At page 17, line 9, add the following, after hne 9: "Defendant's Counsel: I object on the ground that it is in- competent, irrelevant and immaterial. "The Court: Objection overruled. "Defendant's Counsel: Exception." (See Steno. Min., p. 37.) (All the proposed amendments to the proposed ca^e on appeal should be inserted in the same manner.) Dated the day of , 19 . To: Yours, etc., Ely Franklin, Esq., George Henry, Attorney for Respondent. Attorney for Appellant. APPEAL 723 Undertaking on Appeal FORM NO. 421 Notice of Settlement of Case Supreme Court, Appellate Division, First Department. Adam Brown, Plaintiff, Respondent, aga nst Charles Darwin, Defendant, Appellant. Please take notice that the proposed case and proposed amendments thereto will be submitted to Mr. Justice Donnelly at Trial Term, Part 16, of the New York Supreme Court, at the County Courthouse, New York County, on the day of , 19 , at ten o'clock in the forenoon, for settlement. Dated the day of , 19 . To: Yours, etc., Ely Franklin, Esq., George Henry, Attorney for Respondent. Attorney for Appellant. FORM NO. 422 Undertaking on Appeal ^ Supreme Court Appellate Division, First Department. Adam Brown, Respondent, against Charles Darwin, Appellant. Whereas, on the day of , 19 , in the Supreme Court, New York County, the above-named ' An undertaking on appeal need not be approved but if exceptions are filed thereto the sureties must justify. Code Civ. Pro., § 1335. 724 Bradbury's lawyers' manual Undertaking on Appeal respondent recovered judgment against the above-named ap- pellant for dollars, damages and costs. And the above-named appellant feeling aggrieved thereby, intends to appeal (has appealed) therefrom to the Appellate Division of the Supreme Court in and for the First Depart- ment. Now, THEREFORE, we, William Brown residing at No. , Street, in the of and James Hopkins residing at No. , Street, in said do jointly and severally, pursuant to the Statute in such case made and provided, undertake, that the appellant will pay all costs, disbursements, and damages awarded against him if such judgment shall be affirmed, or the appeal be dismissed, together with all costs and damages which may be awarded against the appellant thereon, not exceeding five hundred dol- lars. Dated the day of , 19 . William Brown, James Hopkins. State of New York County of New York William Brown 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 liabiUties 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 ] William Brown. day of , 19 . J (Signature and title of officer.) State of New York County of New York James Hopkins 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 APPEAL 725 Notice of Argument in the Appellate Division on Appeal from Judgment 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 1 James Hopkins. day of 19 . 1 (Signature and title of officer.) State of New Yohk County of New York ss: On this day of , 19 , before me personally appeared William Brown and James Hopkins to me known and known to me to be the individuals described in, and who executed the above undertaking, and they severally acknowledged that they executed the same. (Signature and title of officer.) FORM NO. 422a Notice of Argument in the Appellate Division on Appeal from Judgment New York Supreme Court, Appellate Division, First De- partment. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. Please take notice that the appeal in the above-entitled action will be brought on for argument at a term of the Appel- late Division of the Supreme Court, First Department, to be held at the Courthouse, Madison Square, Borough of Man- hattan, New York City, at the opening of court on the 726 Bradbury's lawyers' manual Order of Affirmance in the Appellate Division day of ,19 , or as soon thereafter as counsel can be heard. Dated the day of , 19 . Yours, etc., George Henry, Attorney for defendant, Appellant. To: Ely Franklin , Esq., Attorney for plaintiff, Respondent. FORM NO. 423 Order of Affirmance in the Appellate Division At a Term of the Appellate Division of the Supreme Court, held in and for the First Judicial District in the Coxmty of New- York, on the day of , 19' . Present: Hon. George L. Ingraham, Presiding Justice. Hon. Frank C. Laxtghlin, Hon. John Proctor Clarke, Hon. Francis M. Scott, Hon. Walter Lloyd Smith, Justices. Adam Brown, Respondent, against Charles Darwin, Appellant. An appeal having been taken to this court by the defendant from the judgment of the Supreme Court, entered on the day of , 19 , in the office of the Clerk of the County of New York and from an order made by said court denying** a motion for a new trial, entered in the office of the clerk of the County of New York, on the day of , 19 , and said appeal having been argued by Ely FrankUn, Esq., of counsel for the appellant, and by George Henry, Esq., of counsel for the respondent, and due deliber- ation having been had, it is hereby unanimously APPEAL 727 Judgment of Affirmance OpDEHED AND ADJUDGED that the judgment and order so appealed from be and the same hereby are in all things, af- firmed, and that the respondent recover of the appellant the costs of this appeal. Enter, G. L. I., P. J. FORM NO. 424 Judgment of Affirmance New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. The above-named defendant, Charles Darwin, having ap- pealed to the Appellate Division of the Supreme Court from the judgment of the Supreme Court, entered in the office of the Clerk of the County of New York on the day of ,19 , in favor of the plaintiff and against the defendant, for the sum of dollars and from an order made by said court denying the defendant's motion for a new trial and entered in the office of the Clerk of the County of New York on the day of ; 19 , and the said Appellate Division of the Supreme Court having rendered its decision affirming said judgment and order, with costs to the plaintiff, respondent, and having ordered and ad- judged that the judgment and order so appealed from be af- firmed with costs of said appeal to the plaintiff, and a certified copy of the order of said Appellate Division having been duly filed together with the record, in the office of the Clerk of the County of New York, and said costs having been duly taxed by the Clerk of this court,^ 728 Bradbury's lawyer's manual Notice of Appeal to the Court of Appeals from Judgment of Affirmance Now, on motion of George Henry, attorney for the plaintiff, it is Ordered, adjudged and decreed that the judgment and order so appealed from be and the same hereby are in all things affirmed and it is further Adjudged that the plaintiff, Adam Brown, recover of the defendant, Charles Darwin, the sum of dollars, the costs of said appeal, and that the plaintiff have execution therefor. Judgment signed and entered this day of 19 . (Seal.) Wm. F. Schneider, Clerk. FORM NO. 425 Notice of Appeal to the Cou~t of Appeals from Judgment of Aflfirmance ^ New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice that the above-named defendant hereby appeals to the Court of Appeals from the judgment in the above-entitled action in favor of the plaintiff and against the defendant, entered in the office of the Clerk of the Coimty of New York on the day of , 19 , affirming a judgment in said action entered in the office of the Clerk of the County of New York on the day of ,19 , in favor of the plaintiff and against the ' K the appeal is from a reversal and granting a new trial there must be added to this form the following: "And the appellant stipulates that upon affirmance (of the order granting a new trial) judgment absolute shall be rendered against the appellant." (See Code Civ. Pro., § 190, subd. 1.) APPEAL 729 Undertaking on Appeal to the Court of Appeals defendant, for the sum of dollars and also affirm- ing an order denying a motion for a new trial, which said order was duly entered in the office of the Clerk of the County of New York on the day of , 19 , and the defendant appeals from each and every part of said judgment of affirmance. Dated the day of , 19 . Yours, etc., Ely Franklin, To: Attorney for Defendant, Appellant. George Henry, Esq., Attorney for Plaintiff, Respondent and Clerk of the County of New York. FORM NO. 426 UndertaMng on Appeal to the Court of Appeals When a Stay ' of Execution of the Judgment is not Desired (Code Civ. Pro., § 1326) New York Court of Appeals. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. The above-named appellant having appealed to the Court of Appeals from a judgment against him, in favor of the above- named respondent, for the sum of dollars, which was duly entered in the office of the Clerk of the County of New York on the day of , 19 . Now, we, L. M., Merchant, residing at No. , Street, in the Borough of Manhattan, City, County and State of New York, and R. S., Banker, residing at No. , Street, in the 1 If a stay is desired use Form No. 422, except that the recital is an appeal to the Court of Appeals instead of the Appellate Division. ss: 730 Bradbury's lawyers' manual Undertaking on Appeal to the Court of Appeals Borough of Manhattan, City, County and State of New York, do jointly and severally undertake that the said appellaat, Charles Darwin, will pay all costs and damages which may be awarded against him on said appeal, not exceeding $500. Dated the day of , 19 . L. M., R. S. State op New York County of New York L. M., being duly sworn, deposes and says that he is a house- holder (freeholder) in the State of New York; and that he is worth double the sum specified 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 before me, this ] L. M. day of , 19 . J ' (Signature and title of officer.) State of New York 1 r SS ' County of New York j R. S., being duly sworn, deposes and says that he is a house- holder (freeholder) in the State of New York; and that he is worth double the sum specified 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 before me, this 1 R. S. day of , 19 . (Signature and title of oficer.) County of New York 1 State of New York J On this day of , 19 , before me per- sonally came L. M. and R. S., to me known and known to me to be the individuals described in and who executed the above APPEAL 731 Notice of Argument of Appeal in Court of Appeals undertaking and they severally acknowledged that they ex- ecuted the same. (Signature and title of officer.) FORM NO. 427 Stipulation Waiving Certification of Return on Appeal to the Court of Appeals It is hereby stipulated that the papers as hereinbefore printed consist of true and correct copies of the order and judg- ment of affirmance appealed from, the notice of appeal to the Court of Appeals, the affidavit of no opinion and all the papers upon which the court below acted in making the order and judgment appealed from and the whole thereof, now on file in the office of the Clerk of the County of New York, and certification thereof in pursuance of § 1353 of the Code of Civil Procedure is hereby waived. Dated the day of , 19 . Ely Franklin, Attorney for Plaintiff, Respondent. George Henry, Attorney for Defendant, Appellant,- ^ FORM NO. 427a Notice of Argument of Appeal in Court of Appeals. New York Court of Appeals. Adam Brown, <• Plaintiff, Respondent, against : Charles Darwin, Defendant, Appellant. Please take notice that the appeal in .the above-entitled action will be brought on for argilment at a term of the Court 732 Bradbury's lawyers' manual Notice of Appeal to Appellate Division of the Supreme Court from an Order of Appeals to be held at the Courthouse at Albany, on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard. Dated the day of , 19 . George Henry, Attorney for Defendant, Appellant. To: Ely Franklin, Esq., Attorney for Plaintiff, Respondent. FORM NO. 428 Notice of Appeal to Appellate Division of the Supreme Court from an Order New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice that the above-named defendant hereby appeals to the Appellate Division of the Supreme Court, First Department, from an order entered in the above-entitled action in the office of the Clerk of the County of New York, on the day of ,19 {here state briefly the nature of the order) and from each and every part of said order. Dated the day of , 19 . Yours, etc.. To: Ely Franklin, George Henry, Esq., Attorney for Defendant. Attorney for plaintiff; and The Clerk of the County of New York. APPEAL 733 Notice of Appeal to the Appellate Term FORM NO. 429 Appeal to Appellate Division; Stipulation as to Papers on Appeal from an Order to the Appellate Division, Supreme Court,- in Lieu of Certification by the Clerk It is hereby stipulated that the papers as hereinbefore provided consist of true and correct copies of the notice of appeal, the order appealed from and all the papers upon which the court below acted in making the order appealed from and the whole thereof now on file in the office of the Clerk of the County of New York. Certification thereof in pursuance of § 1353 of the Code of Civil Procedure is hereby waived. Dated the day of , 19 . Ely Franklin, Attorney for Plaintiff, Respondent. George Henry, Attorney for Defendant, Appellant. FORM NO. 430 Notice of Appeal to the Appellate Term from a Judgment of the City Court of the City of New York City Court of the City of New York. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. Please take notice that the above-named defendant hereby appeals to the Appellate Division of the Supreme Court to be heard at the Appellate Term thereof from a judgment entered in the above-entitled action in favor of the above-named plain- 734 bradbuby's lawyers' manual Notice of Argument of Appeal in Appellate Term tiff and against the above-named defendant in the office of the Clerk of the City Court of the City of New York on the day of , 19 , for the sum of dollars, and also from an order entered in said clerk's office in the above-entitled action on the day -of , 19 , denying the defendant's motion for a new trial and a transcript of which judgment was duly filed and docketed in the office of the Clerk of the County of New York on the day of , 19 , and from each and every part of said judgment and order on both questions of law and questions of fact. Dated the day of , 19 . To: Yours, etc., Ely Franklin, Esq., George Henry, Attorney for the Plaintiff. Attorney for the Defendant. FORM NO. 431 Notice of Argument of Appeal in Appellate Term from Judgment of City Court of the City of New York New York Supreme Court, Appellate Term, First Depart- ment. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. Please take notice that the appeal from the judgment of the City Court of the City of New York, in the above- entitled action will be brought on for argument before the Appellate Division of the Supreme Court, First Department, to be heard at the Appellate Term thereof, at a stated term APPEAL -—735 Notice of Appeal from Municipal Court to Appellate Term of said court, to be held in the County Courthouse, New York County, on the day of , 19 , and a motion made to dismiss the appeal. Dated the day of , 19 . Yours, etc., To: George Henry, Ely Franklin, Esq., Attorney for Defendant, Appellant. Attorney for Plaintiff, Respondent. FORM NO. 432 Notice of Appeal from Municipal Court to Appellate Term of Su- preme Court from Judgment (Mun. Ct. Act, § 157) Municipal Court of the City of New York. Borough of Manhattan, Second District. Adam Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice that the above-named Charles Darwin, the defendant herein, hereby appeals to the Appellate Term of the Supreme Court, First Department, from a judgment entered in the above-entitled action in the office of the Clerk of the Municipal Court of the City of New York, Borough of Manhattan, Second District, in favor of the above-named plaintiff and against the above-named defendant, for the sum of dollars, on the day of , 19 , and also from an order denying a motion for a new trial in the above-entitled action entered in the office of the Clerk of the Municipal Court of the City of New York, Borough of Manhattan, Second District, on the day of , 736 Bradbury's lawyers' manual Undertaking on Appeal from Judgment of Municipal Court to Stay Execution 19 , and from each and every part of said judgment and order on questions of law and questions of fact. Dated the day of , 19 . Yoitrs, etc., George Henry, To: Attorney for Defendant, Appellant. Ely Franklin, Esq., Attorney for Plaintiff, Respondent; and Clerk of the Municipal Court of the City of New York, Borough of Manhattan, Second District. FORM NO. 433 Undertaking on Appeal from Judgment of Municipal Court to Stay Execution ' Municipal Court of the City of New York, Borough of Manhattan, Second District. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. A judgment having been rendered in the above-entitled action in favor of the plaintiff, Adam Brown, against the de- fendant, Charles Darwin, in the office of the Clerk of the Mu- nicipal Court of the City of New York, Borough of Manhattan, Second District, on the day of , 19 , '■ Under § 159 of the Municipal Court Act the undertaking must be executed by one or more sureties approved by the Justice of the Court. If one surety can justify in a sufficient amount this wiU be sufficient, but the usual practice is to have two sureties. The respondent may except to the sureties on the undertaking within five days after notice of the filing of the bond is given by the Clerk by serving on the appellant's attorneys a notice that he excepts to the sufficiency of the sureties. Within five days thereafter the sureties or other sureties may justify on at least three days' notice, before the court in the district in which the judgment was rendered. Mun. Ct. Act, § 160. APPEAL 737 Undertaking on Appeal from Judgment of Municipal Court to Stay Execution for the sum of dollars, and the said defendant feeling aggrieved thereby, having appealed therefrom to the Appellate Term, of the Supreme Court, First Department, now, we, L. M., Merchant, residing at No. , Street, in the Borough of Manhattan, City and State of New York, and R. S., Banker, residing at No. , Street, Borough of Manhattan, City and State of New York, do jointly and severally undertake that if said appeal is dismissed, or if judgment is rendered against the appellant in the Appellate Court and an execution issued thereon is returned wholly or partly unsatisfied, we will pay the amount of the judgment or the portion thereof remaining unsatisfied, with the costs and damages, if any, awarded by the judgment, not exceeding the sum of dollars (which must be double the amount of the judgment and at least $100). Or, (If the judgment is for the recovery of a chattel, the undertaking must be in the following form:) A judgment having been rendered in the Municipal Court of the City of New York, Borough of Manhattan, Second District, in favor of Adam Brown, the above-named plaintiff, and against Charles Darwin, the above-named defendant, on the day of 19 , awarding to said Charles Darwin certain chattels therein mentioned, of the value of dollars, and the said Charles Darwin feeling aggrieved thereby and having appealed to the Appellate Term of the Supreme Court, First Department, from said judgment, now, we, L. M., Merchant, residing at No. , Street, Borough of Manhattan, City and State of New York, and R. S., Banker, residing at No. , Street, Borough of Manhattan, City and State of New York, do jointly and severally undertake that if the appeal is dismissed or if judg- ment is rendered against the appellant in the Appellate Court, and an execution issued thereon is returned wholly or partly unsatisfied, we will pay the value of the said chattels as fixed by said judgment, together with the costs and damages, if any, awarded by the judgment, not exceeding dollars 738 Bradbury's lawyers' manual Undertaking on Appeal from Judgment of Municipal Court to Stay Execution {which must be not less than twice the value of the chattels and in any event not less than SI 00). Dated the day of , 19 . L. M. R. S. State of New York 1. cc • County of New York L. M., being duly sworn, deposes and says that he is a house- holder (freeholder) in the State of New York, and that he is worth double the sum specified 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. L. M. Sworn to before me, this day of , 19 {Signature and title of officer.) State of New York County of New York yss: R. S., being duly sworn, deposes and says that he is a house- holder (freeholder) in the State of New York, and that he is worth double the sum specified in the above undertaking over and above all the debts and liabiUties 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 day of , 19 {Signature and title of officer.) R. S. ^ss: State of New York County of New York On this day of , 19 , before me per- sonally came L. M. and R. S., to me known and known to me to be the individuals described in and who executed the above undertaking and they severally acknowledged that they exe- cuted the same. {Signature and title of officer.) APPEAL 739 Statement under Rule 4 of the Appellate Term Rules The above undertaking is approved as to form and the suf- ficiency of sureties. Dated the day of , 19 . William Smith, Justice of the Municipal Court of the City of New York. FORM NO. 434 Statement under Rule 4 of the Appellate Term Rules, First Depart- ment, to be Prefixed to Papers on Appeal from Municipal Court, First Department Supreme Court, Appellate Term, First Department. Adam Brown, Plaintiff, against Charles Darwin, Defendant. This is an appeal from a judgment entered in the Municipal Court of the City of New York, Borough of Manhattan, Second District, on the day of , 19 . The action was begun by the service of a sununons on the defendant on the day of , 19 . The complaint was served on the defendant, with the sum- mons, on the day of , 19 . The answer herein was served on the day of ,19 . The bill of particulars herein was served on the day of , 19 . The names of the original parties to the action are stated in fuU above, and there has been no change in the parties since the action was begun {if any change has been made state it at this place). 740 Bradbury's lawyers' manual Notice of Argument in the Appellate Term, First Department The following are the names of the attorneys for the parties on this appeal. Ely Franklin, Attorney for Plaintiff, Respondent. George Henry, Attorney for Defendant, Appellant. FORM NO. 435 Notice of Argument in the Appellate Term, First Department, on an Appeal from a Judgment in the Municipal Court New York Supreme Court, Appellate Term, First Depart- ment. Adam Brown, Plaintiff, Respondent, against Charles Darwin, Defendant, Appellant. Please take notice that the appeal in the above-entitled case will be brought on for argument at the Appellate Term of the New York Supreme Court, First Department, at a term thereof to be held in the County Courthouse, New York County, on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard. Dated the day of , 19 . To: Yours, etc., George Henry, Esq., Ely Franklin, Attorney for Respondent. Attorney for Appellant. CHAPTER XXXIX DISCONTINUANCE FORMS NO. PAGE NO. PAGE 436. Stipulation for disoontinu- 438. Affidavit on motion to dis- ance of action 741 continue 742 437. Order of discontinuance on 439. Order of discontinuance on stipulation 742 application of plaintiff when made ex parte 743 FORM NO. 436 Stipulation for Discontinuance of Action New York Supreme Court, New York County. A. B., Plaintiff, against C. D. and others. Defendants. (The above-entitled action having been settled) it is hereby stipulated that the same be discontinued without costs to either party and that an order to this eiffect may be entered by either party without notice. This action is No. on the Trial Term Calendar No. 1 (2) (or this action is not on the calendar of this Court). Dated the day of , 19 . Ely Franklin, Attorney for Plaintiff. George Henry, Attorney for Defendant. 741 742 BRADBURY S LAWYERS MANUAL Affidavit on Motion to Discontinue FORM NO. 437 Order of Discontinuance on Stipulation At Special Term, Part 2, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D. and others. Defendants. On the annexed stipulation, it is hereby Ordered that the above-entitled action which is No. on the Trial Term Calendar No. 1 (2) be and the same hereby is discontinued without costs to either party as against the other. Enter, P. A. H., J. S. C. FORM NO. 438 Affidavit on Motion to Discontinue ^ New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. ss: State of New York County of A. B., being duly sworn, deposes and says that he is the plaintiff in the above-entitled action; that this action was ' The court sometimes requires the plaintiff to give notice to the defendant of DISCONTINUANCE 743 Order of Discontinuance on Application of Plaintiff When Made Ex Parte brought to recover {state the nature of the action). That the defendant, C. D., has appeared herein by G. H., Esq., his attorney, and served an answer, but no notice of trial has ever been served by either party and the case has not been placed on the calendar. No counterclaim is set up in the defendant's answer. The plaintiff desires to discontinue the action and has requested the defendant to consent to such discontinuance but the defendant has refused to consent thereto. Deponent therefore prays that an order may be entered dis- continuing the action upon payment of the taxable costs. Sworn to before me, this day of , 19 . (Signature and title of officer.) A. B. FORM NO. 439 Order of Discontinuance on Application of Plaintiff When Made Ex Parte At Special Term, Part 2, of the New York Supreme Court, held in and for the County of New York at the County Court- house therein on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. A. B., Plaintiff, against C. D., Defendant. On the annexed affidavit of A. B., sworn to the day of , 19 , and on the complaint and answer in the a motion to discontinue. But if no counterclaim has been pleaded and there are no equities of the defendant, which require the action to be continued, the plaintiff has a right to a discontinuance at any time upon payment of costs. In an ordinary case the motion for a discontinuance is made ex parte. The defend- ant may then come in and move to set aside the order or when such an appUcation is presented to the court it may require that notice be given to the defendant. Usually, however, as before stated, the motion is made ex parte. 744 Bradbury's lawyers' manual Order of Discontinuance on Application of Plaintiff When Made Ex Parte above-entitled action, and on motion of E. F., attorney for the plaintiff, it is hereby Ordered that the above-entitled action be and the same hereby is discontinued upon the payment by the plaintiff to the defendant, of the taxable costs of the action to the date of discontinuance. Enter, P. A. H., J. S. C. CHAPTER XL DISMISSAL FOR FAILURE TO PROSECUTE FORMS NO. PAGE 440. Notice of motion for dismis- sal for failure to prosecute 745 441. AiBdavit on motion to dis- miss for failure to prose- cute 746 NO. PAGE 442. Order dismissing complaint for failure to prosecute or in the alternative giving the defendant right to pro- ceed upon terms 747 FORM NO. 440 Notice of Motion for Dismissal for Failure to Prosecute (Rule 36, Gen. Rules of Prac.) New York Supreme Court, New York County. A. B., against C. D., Plaintiff, Defendant. Please take notice that on the annexed affidavit of E. F., sworn to the day of , 19 , a motion will be made 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 Courthouse therein, on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can be heard, for an order dismissing the complaint in the above-entitled action on the ground that younger issues have been tried in their regular order in the Supreme Court 745 746 bradbuey's lawyers' manual Affidavit on Motion to Dismiss for Failure to Prosecute in New York County and for such other, further and different reUef as may be proper, with the costs of this motion. Dated the day of , 19 . To: Yours, etc., G. H., Esq., E. F., Attorney for Plaintiff. Attorney for Defendant. FORM NO. 441 Affidavit on Motion to Dismiss for Failure to Prosecute (Rule 36, Gen. Rules of Prac.) (Title Same as Last Form) State or New York | r SS ' County of New York j E. F., being duly sworn, deposes and says that he is the attorney for the defendant in the above-entitled action. That issue was joined in this action by the service of an answer on the day of , 19 . The plaintiff has failed to bring the same to trial according to the course and practice of the Supreme Court and younger issues have been tried in their regular order, in the Supreme Court, New York County, to wit: the case of Smith v. Jones, the issue of which was joined on the day of , 19 , was on the day of , 19 , tried in its regular order at trial term. Part 14. Sworn to before me, this 1 E. F. day of ,19 .] (Signature and title of officer.) DISMISSAL FOR FAILURE TO PROSECUTE 747 Order Dismissing Complaint for Failure to Prosecute FORM NO. 442 Order Dismissing Complaint for Failure to Prosecute or in the Alternative Giving the Plaintiff Right to Proceed upon Terms (Rule 36, Gen. Rules of Prac.) At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house, in the Borough of Manhattan, City of New York, on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. A. B., Plaintiff, against C. D., Defendant. A motion having been regularly made by the defendant above named to dismiss the complaint in the above-entitled action for failure to prosecute, on the ground that younger issues have been tried in their regular order and said motion having come on regularly to be heard. Now, on reading and filing the notice of motion dated the day of , 19 , and the affidavit of E. F., sworn to the day of , 19 , in favor of said motion, and the affidavit of G. H., sworn to the day of , 19 , and the affidavit of A. B., sworn to the day of , 19 , in opposi- tion thereto, and after hearing E. F., Esq., attorney for the defendant in favor of said motion, and G. H., Esq., attorney for the plaintiff in opposition thereto, and due deliberation having been had, it is, on motion of E. F., attorney for the defendant. Ordered that said motion be and the same hereby is granted and that the above-entitled action be and the same hereby is 748 Bradbury's lawyers' manual Order Dismissing Complaint for Failure to Prosecute dismissed because of the failure of the plaintiff to prosecute the same, with ten dollars costs to the defendant against the plaintiff. On condition, however, that if the plaintiff immediately place said cause on the proper calendar of this court and dili- gently prosecute the same when reached on the calendar and shall pay to the attorney for the defendant ten dollars costs of this motion within five days after the service on the plain- tiff's attorney of a copy of this order, with due notice of entry, then said motion shall be denied. Enter, S. G., J. S. C. CHAPTER XLI ABATEMENT AND REVIVAL ^ FORMS NO. PAGE NO. PAGE 443. Notice of motion for revival of plaintiff after death of of action and substitution plaintiff 750 of party plaintiff, after 445. Order reviving action, after death of party 749 death of plaintiff and sub- 444. Affidavit on motion to revive stituting representatives of action and for substitution deceased as plaintiff 751 FORM NO. 443 Notice of Motion for Revival of Action and Substitution of Party Plaintiff, After Death of Party ^ (Code Civ. Pro., §§ 755-766) New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. Please take notice that on the annexed affidavit of Wil- ham Brown, sworn to the day of , 19 , '■ For a set of forms including a notice of motion, affidavits, and order reviving action, from the case Jones v. Jones, 171 N. Y. 653, affirming without opinion 68 App. Div. 5; 74 Supp. 297, see 1 Bradb-oet's Pl. & Pb. Rep. 465. On a motion to revive a case after the death of the plaintiff, the court is not limited in its power to grant relief to specific cases provided for in Code Civ. Pro., §§ 757 to 766, inclusive, as the rule contained in § 755 of the Code that an action does not abate by any event, if the cause of action survives or continues, is the paramount one on such,-a motion. Carolan v. O'Donnell, 1 Bradbury's Pl. & Pr. Rep. 459. An action to establish a will does not abate by the dpath of the plaintiff. Caro- lan V. O'Donnell, 1 Bradbury's Pl. & Pb. Rep. 459. ^ If the motion is made for a substitution of a defendant the proceedings would be exactly the same as shown in the forms in the text except the recital would be 749 750 bradbuey's lawyers' manual Affidavit on Motion to Revive Action and on all proceedings had in this action, a motion will be made 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 Courthouse therein on the day of , 19 , at the opening of court on that day, or as soon there- after as counsel can be heard, for an order reviving the above- entitled action a.nd substituting as plaintiff therein William Brown, as executor under the last Will and Testament of Adam Brown, deceased, in place of Adam Brown, and for such other, further and different relief as may be proper. Dated the day of , 19 . To: Yours, etc., G. H., Esq., Ely Franklin, Attorney for Defendant. Attorney for William Brown, as Executor of Adam Brown. FORM NO. 444 Affidavit on Motion to Revive Action and for Substitution of Plain- tiff's Representatives After Death of Plaintiff (Code Civ. Pro., §§ 755-766) {Title Same as Last Form) State of New York County of New York ^ss: William Brown, being duly sworn, deposes and says that Adam Brown, the above-named plaintiff, died on or about the day of , 19 . That thereafter the Will of said Adam Brown was duly permitted to probate by as to the death of the defendant. If one of several parties, either plaintiff or de- fendant, dies, the action may be continued in the name of the surviving parties, but if a liabihty continues as against the estate of the deceased party or if a right exists in favor of the estate of a deceased party, then the same proceedings may be had to substitute the representatives of the deceased party as one ot the plaintiffs or defendants, and the proceedings would be exactly the same, except that notice of motion should be given to all the parties to the action, both plain- tiffs and defendants. The recitals in the affidavit and in the order would merely be in accordance with the facts. ABATEMENT AND REVIVAIj 751 Order Reviving Action, After Death of Plaintiff the Surrogate of the County of New York and Letters Testa- mentary under said Will were duly issued to deponent, William Brown, as executor under said Will and deponent as such execu- tor duly qualified as such and is still such executor. That this action was brought to (state the nature of the action so the court can see that it is a cause of action, which survives) and a copy of the complaint herein is hereto annexed and made- a part of this application. The defendant herein ap- peared and answered by G. H., his attorney, and the action is at issue but has never been tried. {If the action has been tried and an appeal taken, state the present status of the action.) Deponent therefore prays that an order may be made re- viving said action and substituting deponent as executor under the last Will and Testament of Adam Brown, deceased, as the plaintiff in the action. Sworn to before me, this ] William Brown. day of , 19 . J {Signature and title of officer.) FORM NO. 445 Order Reviving Action, After Death of Plaintiff and Substituting Representative of Deceased as Plaintiff (Code Civ. Pro., §§ 755--766) At Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Peter A. Hendrick, Justice. Adam Brown, Plaintiff, against Charles Darwin, Defendant. A motion having been regularly made by WiUiam Brown, as Executor under the last Will and Testament of Adam Brown, 752 BRADBURY'S LAWYERS' MANUAL Order Reviving Action, After Death of Plaintiff the above-named plaintiff, to revive the above-entitled action and to substitute the said William Brown, as Executor under the last Will and Testament of Adam Brown, deceased, as party plaintiff therein, and said motion having come on regu- larly to be heard. Now, after reading and filing the affidavit of WilUam Brown, sworn to the daj'^ of , 19 , and after reading the pleadings heretofore filed in -the office of the clerk of the County of New York, and after hearing E. F., Esq., attorney for the plaintiff in favor of the said motion, and George Henry, Esq., attorney for the defendant in opposition thereto, and due deliberation having been had, it is, on motion of Ely FrankHn, Esq., attorney for the plaintiff. Ordered that said above-entitled action be and hereby is revived and that William Brown, as Executor under th© last Will and Testament of Adam Brown, deceased, is hereby substituted as plaintiff in said action in place of said Adam Brown, deceased. Enter,- P. A. H., J. S. C. CHAPTER XLII mechanics' liens FORMS 446. Notice of mechanic's lien. . . 753 made with tenant, with 447. Notice of lien under public the consent of the landlord 762 improvement 757 451. Answer; mechanic's Uen; de- 448. Affidavit on motion to con- fendant demanding fore- tinue a mechanic's lien . . . 759 closure of his lien 766 449. Order continuing mechanic's 452. Judgment; decree sustaining lien 761 mechanics' liens in favor of 450. Complaint foreclosure of me- plaintiff and defendants.. 772 chanic's lien where con- 453. Satisfaction of mechanic's tract for improvements is lien 776 FORM NO. 446 Notice of Mechanic's Lien ^ (Lien Law, § 9) To the Clerk of the County of New York and to all others whom it may concern : Please take notice that John Jones, residing at No. , Street, Borough of Manhattan, City, County and State of New York (or John Jones and William Brown, a co- partnership doing business under the name of Jones & Brown, '■ The notice of lien may be filed at any time during the progress of the work, or within four months after the completion of the contract or the final perform- ance of the work or the final furnishing of the materials, dating from the last item of work performed or materials furnished. Lien Law, § 10, as amended by L. 1916, chap. 507, in effect July 1, 1916. Where the notice of lien is filed by a partnership it is only necessary to give the business address of the firm and it need not state the residence of the individual members of the firm. Post and McCord v. City of New York, 86 Misc. 300; 148 Supp. 568. A mechanic's lien may be filed after bankruptcy petition has been filed by the corporation to which the goods were furnished. Gates & Co. v. Stevens Construc- tion Co., 169 App. Div. 221; 154 Supp. 605. 753 754 Bradbury's lawyers' manual Notice of Mechanic's Lien whose business address is No. , Street, Borough of Manhattan, City and State of New York, or, the John Jones Company, a domestic corporation, the principal place of business of which is at No. , Street, Borough of Manhattan, City, County and State of New York, or the William Brown Co., a foreign corporation, organized under the laws of the State of Pennsylvania, whose principal place of business within the State of New York is at No. , Street, Borough of Manhattan, City and State of New York) has and claims a lien for principal and interest for the value and the agreed price of the labor and materials hereinafter mentioned upon the real property hereinafter described, and upon the improvements, pursuant to the provisions of the Lien Law of the State of New York and all the acts and laws amendatory thereof, as follows: 1. The name of the owner of the real property against whose interest therein a lien is claimed and the interest of the owner, as far as known to the lienor, is as follows: William Smith, and his interest in said property is that of the owner in fee. 2. The name of the person by whom the lienor was em- ployed and to whom he furnished (or is to furnish) materials {or if the lienor is a contractor or suhcoritractor the person with whom the contract was made), is James Robinson (if the contract was made with the owner, of course, the name of the owner would be stated in this paragraph). 3. The labor performed and the materials furnished and the agreed price or value thereof are as follows : ' All the plumbing work, including pipes, boilers, bathtubs, fixtures, toilers and all other articles necessary to complete 1 A notice of lien for labor performed, which fails to state the kind or amount of labor performed is invalid. Toop v. Smith, 181 N. Y. 283; aff'g 87 App. Div. 241;84Supp. 326. A notice of lien which fails to show the amount of labor performed at the time it was filed is insufficient under subdivision 4 of § 9 of the Lien Law. Bachmann V. Spinghel, 164 App. Div. 725; 149 Supp. 610. Subdivision 4, of § 9, requiring that a notice of lien shall state "the materials furnished or to be furnished and the agreed price or value thereof" should be Uberally construed and a notice stating the kind of materials and their agreed mechanics' liens 755 Notice of Mechanic's Lien the building on the premises hereinafter described and all work and labor in installing said materials in said building, and the agreed price and value of such materials was $5,000 and the reasonable value of certain extra work, included in the materials and labor above enumerated, was the sum of $1,500, which work and materials was directed to be performed and furnished by the person with whom the lienor made the contract as above stated. The labor and materials yet to be performed and furnished and for which a lien is claimed are as follows : {give 'particulars as above). ''^ 4. The amount unpaid to the lienor for such labor and ma- terial is the sum of dollars. 5. The time when the first item of said work was performed was the day of , 19 , and the first item of materials furnished was the day of , 19 , and the time when the last item of work was performed was the day of , 19 , and the time when the last item of materials was furnished was the day of , 19 . price and value is not insufficient because the separate amount and value of each kind of material is not given. New York County National Bank v. Wood, 169 App. Div. 817; 153 Supp. 860. By an amendment made by L. 1916, chap. 507, in effect July 1, 1916, it is pro- vided that a hen can be filed for "materials actually manufactured for, but not delivered to, the real property and the agreed price or value thereof." This was made on amendment to subd. 4, of § 9 of the Lien Law. A notice of mechanic's lien is defective in faiUng to state the agreed price and values of materials furnished for the real property which is subject to the lien where it groups in the notice materials furnished in several contracts for the im- provement of separate pieces of real estate which were improved as independent operations. Edw. E. Buhler Co. v. N. Y. Dock Co., 170 App. Div. 486; 156 Supp. 457. '■ The notice should not be uncertain as to the labor performed, and whether or not it already has been performed, or whether materials have been furnished or whether they are to be furnished, a statement in the alternative that material has beon furnished or is to be furnished is insufficient. Armstrong v. Chisholm, 100 App. Div. 440; 91 Supp. 693; Bosserl v. Fox, 89 App. Div. 7, 85 Supp. 308; aff'd 180 N. Y. 546; New Jersey Steel and Iron Co. v. Robinson, 85 App. Div. 512; 83 Supp. 450. 756 Bradbury's lawyers' manual Notice of Mechanic's Lien 6. The property ' subject to this lien is known as No. , West 39th Street, in the Borough of Manhattan, City and State of New York and is about 70 feet west from the westerly line of Seventh Avenue, on the southerly side of West 39th Street, and is 25 feet wide front and rear and 100 feet deep, the same dimensions being more or less. Dated the day of , 19 . {Signature of lienor.) State of New York County of New York ss: William Brown, ^ being duly sworn, deposes and says that he is the lienor making the above notice of lien {or, that he is a member of the firm of Jones & Brown, the henors making the above notice of lien, or, that he is an officer, to wit : the Secre- tary of the William Brown Company, the corporation making the foregoing notice of lien) ; that the statements in said notice of lien contained are true to his own knowledge except as to the matters which are therein stated to be alleged on informa- '■ Where a notice describes the property as half its actual width and does not give the street number it is insufficient. Sprickeroff v. Gordon, 120 App. Div. 748; ■105 Supp. 586. If the property is sufficiently identified in the notice, evidence of the exact dimensions may be received upon the trial so a decree actually describing th^ property may be entered. Hurley v. Tucker, 128 App. Div. 580; 112 Supp. 980. ^ A verification by an assistant treasurer of a corporation, upon information and belief, was held to be valid. Chambers v. Vassar's Sons & Co., 81 Misc. 562; 143 Supp. 615. The verification of a notice of lien by one of two or more co-partners is good. Waters v. Goldberg, 124 App. Div. 511; 108 Supp. 992. Where the notice of hen is verified without the State of New York care should be taken to have the proper authentication in relation to the officer who takes the affidavit of verification, otherwise the notice of lion wiU be void. Cream City Furniture Co. v. Squier, 2 Misc. 438; 21 Supp. 972. A verification of a notice of lien by an agent, in which affidavit of verification the agent states: "That he is the agent of the claimant mentioned in the foregoing claim and that the statements therein contained are true to his own knowledge, or information and belief " was held to be sufficient. McDonald v. Mayor, etc., "of N. Y., 170 N. Y. 409; rev'g 58 App. Div. 73; 68 Supp. 462. See also Vnim. Stove Works V. Klingiiian, 20 App. Div. 449; 46 Supp. 721. mechanics' liens 757 Notice of Lien under Public Improvement tion and belief and as to those matters he believes it to be true. Sworn to before me, this ] {Signature of lienor.) day of , 19 . J (Signature and title of officer.) FORM NO. 447 Notice of Lien under Public Improvement To the Board of Education of the City of New York: (Or other head of the Department or Bureau having charge of such construction) and the Comptroller of the City of New York (or the Comptroller of the State of New York, or the financial officer of the municipal corporation or other officer or person charged with the custody and disbursements of the State or cor- porate funds applicable to the contract under which the claim is made) and to all others whom it may concern : Please take notice that John Jones, who resides at No. , Street, in the Borough of Manhattan, City and State of New York, 1. Has and claims a hen against any and all sum due or to grow due to William Brown, on account of the performance by said William Brown of work and furnishing materials on the following improvement: (here describe the particular im- provement to which the claim applies) . 2. That the amount claimed by the lienor to be due is the sum of one thousand dollars and the amount claimed by the lienor to become due on such claim against said William Brown is the sum of fifteen hundred dollars. 3. The said sum of one thousand dollars was due on the day of ) 19 , and the further sum of fifteen hundred dollars will be due when said contract is com- pletely performed, which, as the Uenor is informed and verily believes will be about the day of , 19 . 4. That the kind of labor performed by the henor was as follows : (here give general description of the labor) . 758 Bradbury's lawyers' manual Notice of Lien under Public Improvement 5. The kind of materials actually furnished and also actually manufactured but not delivered, for such public improvement, were as follows: {here give description of the materials, both those which were actually furnished and those which were actually manufactured but not delivered).^ 6. The contract for the public improvement for which such materials and labor were performed and furnished was a con- tract entered into on or about the day of , 19 , between representing the said (name of municipal corporation or State of New York) and the said William Brown, for the building of a State's Prison at (or otherwise describe the contract). 7. That said materials and labor were performed by the lienor pursuant to contract with the said William Brown, entered into on or about the day of , 19 , and the first materials thereunder were furnished about the day of , 19 , and the last materials were furnished on the day of , 19 , and the first labor was performed on the day of , 19 , and the last labor was performed on the day of ,19 . The said William Brown has paid to the lienors herein the sum of dollars under said contract, which said contract provided for the payment of dollars when entirely completed, and the sum for which the lien herein is claimed is the difference between the amount of the original contract and the amount which has been paid, amounting to the sum of dollars, no part of which has been paid. 8. That said materials were actually used and said labor was actually performed in and about the public improvement herein described. Dated the day of , 19 . (Signature of lienor.) 1 See notes to preceding form. mechanics' liens 759 Affidavit on Motion to Continue a Mechanic's Lien State of New York 1 County op New York J ^^ ' John Jones/ being duly sworn, deposes and says, that he is the henor making the above notice of lien {or, that he is a member of the firm of Jones and Brown, the lienors making the above notice of hen; or, that he is an officer, to wit, the Secretary of the Wilham Brown Co., the corporation making the foregoing notice of hen) ; that the statements in said notice of lien contained are true to his own knowledge except as to the matters which are therein stated to be alleged on informa- tion and belief and that as to those matters he beUeves it to be true. {Signature of lienor.) Sworn to before me, this 1 day of , 19 . J {Signature and title of officer.) FORM NO. 448 Affidavit on Motion to Continue a Mechanic's Lien ^ New York Supreme Court, New York County. In the Matter of the Apphcation of Adam Brown, to continue a Me- chanic's Lien against Charles Darwin, as Owner, and Edward Edwards as Contractor. State of New York County of New York Adam Brown, being duly sworn, deposes and says that on the day of , 19 , he caused a notice ' See notes to preceding form. 2 No notice of a proceeding to continue a mechanic's hen need be given. If the lien is under a public improvement contract it expires at the end of three months after the lien is filed, but an order to continue it may be granted con- tinuing it for six months, and successive orders continuing the lien for periods of six months each may be made under Lien Law, § 18. 760 Bradbury's lawyers* manual Affidavit on Motion to Continue a Mechanic's Lien of mechanic's lien to be duly filed and entered in the office of the Clerk of the County of New York against certain real property situated in the County of New York, which is more particularly described in the notice of lien, a copy of which is hereunto annexed and made a part of this proceeding, which notice was filed against the above-named Charles Darwin, as owner of said property (and Edward Edwards as contractor), and said notice was duly docketed by the Clerk of the County of New York on the day of , 19 . Said notice of lien was filed within four months after the completion of said labor and the furnishing of said material mentioned in said lien. No action has been commenced or other proceedings taken to enforce said lien or the debt which said lien was filed to secure, against the said real property or against the said Charles Darwin, or the said Edward Edwards, nor has said lien been cancelled or otherwise discharged and the whole amount therein claimed is now due and payable from the said Charles Darwin and Edward Edwards, to deponent. No action has been taken to enforce said lien up to this time for the reason that the work has been taken over by the owner and the entire work on the building has not yet been completed and it will be impossible to determine just what amounts are due to lienors until said work is completed. {Or otherwise state the reason why an action to foreclose the lien has not been begun.) Deponent therefore asks that an order may be entered ex- tending and continuing said lien for a period of one year. No previous application for such an order has been made. Sworn to before me, this ] Adam Brown. day of , 19 . J (Signature and title of officer.) mechanics' liens 761 Order Continuing Mechanic's Lien FORM NO. 449 Order Continuing Mechanic's Lien (Lien Law, §§ 17, 18) At Special Term, Part 2, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein on the day of , 19 . • Present: Hon. Samuel Greenbaxjm, Justice. In the Matter of the Application of Adam Brown, to continue a Me- chanic's Lien against Charles Darwin, as Owner, and Edward Edwards as Contractor. On reading and fihng the affidavit of Adam Brown, sworn to the day of ; 19 > and the notice of mechanic's lien thereto attached, and sufficient reason appear- ing to me why the said lien should be continued. Now, on motion of Ely Franklin, attorney for said Adam Brown, it is Ordered that the lien filed by Adam Brown in the office of the Clerk of the County of New York and docketed by him on the day of , 19 , against Charles Darwin, as owner, and Edward Edwards, as contractor, upon the following real property and improvements thereon (here describe the property in the same way that it is described in the notice of lien) be and the same hereby is continued for the period of one year pursuant to § 17 of the Lien Law of New York, and the County Clerk of New York County is hereby directed to make a new docket of said lien hereby continued as of the dale of this order, in the Lien Docket kept in his 762 Bradbury's lawyers' manual ,,, . . — — Complaint; Foreclosure of Mechanic's Lien office for that purpose, pursuant to law and note thereon that said lien is so continued by order of this court. Enter; S. G., J. S. C. FORM NO. 450 Complaint ; Foreclosure of Mechanic's Lien where Contract for Im- provements is made with Tenant, with the Consent of the Land- lord ^ Supreme Court, Onondaga County. Henry Funda, Plaintiff, against Allen May, Edward T. Stevens, _ Sarah A. Stevens and Elizabeth May, individually and as copart- ners under the firm name of May and Stevens, Samuel T. Betts, Edith L. Betts, May Theatre Company and Thomas O'Brien. Defendants. The plaintiff, complaining of the defendant, alleges: First: That the defendants, Samuel T. Betts and Edith L. Betts, were at all the times hereinafter mentioned and now are the owners in fee of the following described real property. (Description of property.) Second: That by an instrument in writing, dated on or about the day of , 19 , the defend- ants, Samuel T. Betts and Edith L. Betts, leased the ground ' Adapted from Funda v. Betts, 200 N. Y. 517, afif'g with memorandum opinion, 134 App. Div. 908 (no opinion), in which a judgment in favor of the plaintiff was affirmed. A notice of pendency of the action should be filed in the office of the county clerk with the summons and complaint. See Chapter XII, page 203. MECHANICS LIENS ' --^"^ 763 Complaint; Foreclosure of Mechanic's Lien floor store of Street, in the City of , located upon the real property above described for the term of years, from the aforesaid day of - , 19 , to the defendants Allen May, Elizabeth May, Edward T. Stevens and Sarah A. Stevens, individually and as copartners, hereinafter called May and Stevens, their successors and as- signs, and at all the times hereinafter mentioned the said de- fendants above named were and are now in possession of said premises, as tenants under said lease. Third : That on or about the day of , 19 , the plaintiff and the defendants, Allen May, Elizabeth May, Edward T. Stevens and Sarah T. Stevens, individually and as copartners entered into a contract for the alteration and repair of the store on the premises hereinbefore described, whereby this plaintiff agreed to supply the labor and materials and to do the carpenter work in connection therewith, of the alteration and repair of the aforesaid store on premises, to fit the same for use by said defendants as a theatre, all as directed by the said defendant lessees and by and with the permission and consent of the said owners and that subsequently plaintiff did supply the goods, wares and merchandise and the labor, all as agreed upon, and has permitted and consented to by said defendants and that the reasonable value of said materials and labor so supplied and the agreed and stipulated price which the defendants May and Stevens agreed to pay was the sum of dollars. Fourth: That said merchandise and materials were sold and delivered and said labor was performed by said plaintiff to and for said defendants for the purpose of being used in the improvements aforesaid, that is, in the alteration and repair of the said building situate upon the aforesaid real property and were actually so used and the plaintiff has duly performed all the conditions of the said contract on his part to be per- formed. Fifth: That by reason of the foregoing there became due to the plaintiff on or before the day of , 19 , the whole sum of dollars, which said sum is 764 Bradbury's lawyers' manual Complaint; Foreclosure of Mechanic's Lien now due and owing and unpaid, except the sum of dollars paid thereon, leaving the balance of dollars, with interest thereon from the day of , 19 , no part of which has been paid. Sixth: That the defendant, Samuel T. Betts and Edith L. Betts, owners and lessors, consented to the making of the aforesaid contract and the same was performed and the ma- terials therein and the labor done thereunder with the full knowledge and consent of the said defendants, Samuel T. Betts and Edith L. Betts. Seventh : That on the day of , 19 , and within four months after the completion of the contract and work above set forth and the final performance of the work and final furnishing of the materials above stated, dated from the last item of work performed and materials furnished, the plaintiff filed a notice in writing in the office of the Clerk of the County of Onondaga, New York, in which the real prop- erty aforesaid against which a lien is claimed is situated, on and against said real property, for the amount of labor and materials aforesaid, to wit, the sum of dollars; that said notice of lien contained, among other things, the name and residence of the lienors the plaintiff herein, the names of the persons by whom the plaintiff was employed and to whom he furnished the said materials and the persons with whom the contract was made, the labor performed and the materials furnished and the agreed price and value thereof, the amount unpaid to the lienor for such labor and materials, the time when the first and last items of work were performed and materials were furnished; and also a description of the prop- erty to be charged with the lien sufficient for identification; that the said notice of lien was duly verified and complied in all respects with the requirements of the statutes of the State of New York and that on the iSth day of April, 1907, said lien was duly entered and docketed by the clerk in the lien docket kept in his office. Eighth: That on the day of , 19 , and after filing of said notice of lien as aforesaid, the plaintiff MECHANICS LIENS 765 Complaint; Foreclosure of Mechanic's Lien caused a copy of said notice of lien to be served personally upon the owners, said defendants, Samuel T. Betts and Edith L. Betts. Ninth: That no other person or persons have filed liens against said property, nor have subsequent liens or claims by judgment or otherwise been made or filed or rendered against said property. Wherefore plaintiff demands judgment: I. That the plaintiff be adjudged to have a lien on said real property prior to other liens, except the lien of the defendant, O'Brien, in the sum of dollars. II. That the defendants and all persons claiming under them or any or either of them be foreclosed of all equity of redemption or other interest in said premises, except such as may be ad- judged to be prior to the plaintiff. III. That the interest of the defendants, Samuel T. Betts and Edith L. Betts, in said premises be sold as provided by law and that from the proceeds of said sale the plaintiff be paid the amount of his lien aforesaid and interest on dollars from the day of , 19 , together with the expenses of sale and costs and disbursements of this action. IV. That the plaintiff herein have judgment against the defendants, Samuel T. Betts and Edith L. Betts, for any de- ficiency that may remain due him in such sale. V. That the plaintiff have such other, further and different relief, order and decree as may be equitable. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. [Verification.] 766 Bradbury's lawyers' manual Answer; Mechanic's Lien; Defendant Demanding Foreclosure of His Lien FORM NO. 451 Answer; Mechanic's Lien; Defendant Deinanding Foreclosure of His Lien Supreme Court, Onondaga County. Henry Funda, Plaintiff, against Allen May, Edward T. Stevens, Sarah A. Stevens and Elizabeth May, individually and as copartners under the firm name of May and Stevens, Samuel T. Betts, Edith Lizette Betts, May Theatre Company and Thomas O'Brien, Defendants. The defendant, Thomas J. O'Brien, for an answer to the complaint of the plaintiff herein : I. Admits that Henry Funda is a carpenter contractor en- gaged in business in the city of Syracuse, N. Y. II. That Samuel T. Betts and Edith Lizetta Betts, by an instrument in writing dated on or about the first day of Decem- ber, 1906, leased the ground floor store number 328 Salina Street in the City of Syracuse, N. Y., located upon the real property described in the complaint for a term of five years from the first day of December, 1906, and that the defendants, Allen May, Elizabeth May, Edward T. Stevens and Sarah A. Stevens, individually and as copartners under the firm name and style of "May & Stevens," were, and now are, in possession of said premises as tenants under said lease. III. That the defendant, Thomas J. O'Brien, filed a mechanic's lien against the above-described property April 9, MECHANICS LIENS 767 Answer; Mechanic's Lien; Defendant Demanding Foreclosure of His Lien 1907, for the sum of dollars and that the May- Theatre Company is the successor of "May & Stevens." IV. The defendant, Thomas J. O'Brien, denies any knowl- edge or information sufficient to form a belief as to the allega- tions contained in said complaint not herein specifically ad- mitted or controverted and therefore denies the same. For a second defense the defendant, Thomas J. O'Brien, alleges: I. That he is now, and during all the times hereinafter named was, engaged in the electrical contract business in the city of Syracuse, N. Y., under the name and style of "Onondaga Electric Company." II. That the defendants, Samuel T. Betts and Edith Lizette Betts, are now, and during all the times hereinafter mentioned were, the owners in fee simple of the following described real property, to wit: (description of property); III. That heretofore and on or about the 26th day of Decem- ber, 1906, this defendant entered into an agreement in writing with the defendants "May & Stevens" wherein and whereby this defendant agreed to perform certain work and furnish certain materials in the improvement of the premises herein described for the agreed sum and price of dollars. IV. That heretofore and prior to the 4th day, of April, 1907. this defendant, Thomas J. O'Brien, fully complied with all of the terms and conditions in said contract on his part to be per- formed. V. The defendant, Thomas J. O'Brien, further alleges that between the 26th day of December, 1906, and the 4th day of April, 1907, he performed certain extra work, labor and ser- vices and furnished certain extra materials not provided for by the terms of said contract, for the said copartnership of "May & Stevens," which said materials were furnished and said labor was performed at the special instance and request of said "May & Stevens," and the reasonable value thereof, and for which they agreed to pay, was the sum of dollars. That Exhibit A annexed hereto contains a statement of the extra work performed and extra material furnished, as afore- 768 Bradbury's lawyers' manual Answer; Mechanic's Lien; Defendant Demanding Foreclosure of His Lien said, which itemized statement is hereby referred to and made part of this answer. VI. That said work, labor and services performed and mate- rials furnished by this defendant in pm-suance of the terms of said contract and all of the extra work, labor and services per- formed and extra materials fm-nished, as aforesaid, were per- formed and fm-nished at the special instance and request of said copartnership of "May & Stevens" were for the purpose of being used in the alteration, repair and improvement of the real property herein described, with the knowledge and consent of the defendants, Samuel T. Betts and Edith Lizette Betts, the owners of said property. VII. The defendant alleges that all of the said work per- formed and materials fm-nished as aforesaid in the improve- ment, alteration and repair of the building described herein were actually used in the alteration, improvement and repair of the real property herein described by the said Thomas J. O'Brien with the knowledge and consent of said Samuel T. Betts and Edith Lizette Betts. VIII. This defendant further alleges that the defendants, "May & Stevens," promised and agreed to pay to this defend- ant, as provided in said contract and for extra materials and labor the sum of dollars, but no part thereof has been paid except the sum of dollars, which has been paid on account thereof, leaving due and owing to this defendant from "May & Stevens" the sum of dollars. IX. This defendant further alleges that the defendants, Samuel T. Betts and Edith Lizette Betts, the owners of said premises, consented to the improvement, alteration and repair of the building aforesaid, and that all of the work, labor and services and material for which the defendant claims a lien were furnished, performed and used upon the said premises with the knowledge and consent of said owners and that the property of said Samuel T. Betts and Edith Lizette Betts is enhanced thereby, and said improvements will revert to them at the expiration of said lease. mechanics' liens 769 Answer; Mechanic's Lien; Defendant Demanding Foreclosure of His Lien X. That heretofore and on the 4th day of April, 1907, and after the sum of dollars had become due and payable, and within ninety days after the completion of said contract and extra work as aforesaid, this defendant filed a notice of lien in writing in the clerk's office of the county of Onondaga, in which county said property aforesaid, and against which a lien is asserted, is situate, on and against the said real property for the amount of the labor and materials aforesaid, to wit: dollars. That said notice of lien contained the names of the owners of said real property against* whose interests a lien was claimed and the nature of their interest, the name of the person by whom this defendant was employed, and for whom he furnished the labor and mate- rials, and the persons with whom this defendant contracted for the labor to be performed and materials to be furnished and the agreed price thereof, the amount unpaid, the time when the first and last item of work was performed and materials fur- nished, and also a description of the property to be charged with the lien sufficient for identification. That said notice of hen was duly verified and compUed in all respects with the requirements of the statute in such cases made and provided, and that on the 9th day of April, 1909, said lien was duly en- tered and docketed by said clerk in the Lien Book kept in his office. This defendant annexed hereto, marked Exhibit B, a copy of said notice of lien, and makes the same a part of this answer, but reference is likewise made to the original lien filed as aforesaid for an accurate statement of the contents thereof. XI. That on the 12th day of April, 1907, and after fifing his notice of Hen, as hereinbefore set forth, this defendant caused a copy of said notice to be served personally upon one of the owners, Samuel T. Betts, a defendant herein. XII. That thereafter on the 20th day of April, 1907, and after the fifing of his notice of Hen, as hereinbefore set forth, this defendant caused a copy of said notice to be served per- sonally upon Allen May and May Theatre Company, a domes- tic corporation. XIII. That heretofore, on the 10th day of April, 1907, and 770 bradbxjry's lawyers' manual Answer; Mechanic's Lien; Defendant Demanding Foreclosure of His Lien after the filing of the notice of hen hereinbefore set forth, this defendant caused a copy of said notice to be served upon the defendants, Edward T. Stevens and Sarah A. Stevens, by- registered letter addressed to their last known place of residence. XIV. That Ijeretofore on the 13th day of April, 1907, and after filing his notice of lien as hereinbefore set forth this de- fendant caused a copy of said notice of lien to be served upon the defendant, Edith Lizette Betts, by registered letter ad- dressed to her last known place of residence. XV. That no other persons have filed liens against said property or subsequent liens or claims by judgment, mortgage or conveyance, excepting that heretofore and on the 13th day of April, 1907, the plaintiff herein, Henry Funda, caused to be filed in the clerk's office of Onondaga County a hen against the property described herein for the sum of dollars, and the lien of the Syracuse Heater Company, filed in the clerk's office of Onondaga County on the 13th day of May, 1907, in the sum of one hundred dollars and the lien of the Syracuse Mantel Title & Marble Company by John Strathdee, filed in the Onondaga County clerk's office, May 10th, 1907, in the sum of dollars, and the lien of David E. Brown, filed in the clerk's office of Onondaga County on the 16th day of May, 1907, in the sum of dollars. That none of said lienors heretofore named except- ing Henry Eunda are parties defendant to this action. XVI. This defendant further alleges upon information and belief that "May & Stevens" are a copartnership engaged in the theatrical business under the firm name and style of "May & Stevens" which said copartnership, as this defendant is informed and believes, is composed of Allen May, Edward T. Stevens and Sarah A. Stevens, and that the defendant, May Theatre Company, is a corporation created and existing under and by virtue of the laws of the State of New York, and claim to be the successors in interest of "May & Stevens." Wherefore, this defendant, Thomas J. O'Brien, demands judgment: I. That the amount due upon his lien and claim for prin- MECHANICS' LIENS 771 Answer; Mechanic's Lien; Defendant Demanding Foreclosure of His Lien cipal and interest be ascertained, determined and ad- judged. II. That the rights, interests and priorities of this defendant and the plaintiff and all of the defendants herein be ascertained, determined and adjudged. III. That he be adjudged to have a vahd and subsisting lien upon the interest of Samuel T. Betts and Edith Lizette Betts in the premises herein described for the sum of dollars, besides interest thereon from April 4th, 1907, prior to all other liens against said premises. IV. That the plaintiff and all the other defendants herein, and all persons claiming under them, be foreclosed of all equity of redemption or other interests in said premises. V. That the interests of Samuel T. Betts and Edith Lizette Betts in said premises be sold as provided by law, and that from the proceeds of such sale this defendant be first paid the amount of his lien as aforesaid, with interest thereon to the time of such payment, besides the expense of said sale, and the costs and expenses of this action, so far as the amount properly applicable thereto will pay the same. VI. That this defendant have personal judgment against the defendants, Samuel T. Betts and Edith Lizette Betts, for any deficiency that may remain due to him after such sale. VII. That the defendant have personal judgment against the defendants, Allen May, Edward T. Stevens and Sarah A. Stevens, for any deficiency that may remain due to him after such sale. VIII. That the defendant may have such other and further judgment, order or relief as may be just. CooNEY & White, Attorneys for Defendant, Thomas J. O'Brien, 932 University Block, Syracuse, N. Y. [Verification.] 772 BRADBURY S LAWYERS MANUAL Judgment; Decree Sustaining Mechanics' Liens FORM NO. 452 Judgment; Decree Sustaining Mechanics' Liens in Favor of Plain- tiff and Defendants Supreme Court, Onondaga County. Henry Funda, Plaintiff, against Allen May, Edwakd T. Stevens, Sarah A. Stevens and Eltzabeth May, individually and as copart- ners under the firm name of May and Stevens, Samuel T. Betts, Edith L. Betts, May Theatre Company, Thomas J. O'Brien, Syracuse Heater Company, John Strathdee and Joseph Leo Nicholson, doing busi- ness under the firm name and style of the Syracuse Mantel, Tile and Marble Company, David E. Brown, WiUiam B. Smith and James F. Caffrey, doing business under the firm name and style of Phoenix Foundry, Defendants. This action having been brought for the foreclosure of cer- tain mechanics' liens and the issues therein having been duly referred to Ceylon H. Lewis, Esq., as referee, to hear, try and determine the same by an order duly made and entered in Onondaga County, clerk's office, July 12, 1907, and after trial had on due notice the referee having duly made his de- cision and report dated February 14, 1908, and which has been duly filed in the Onondaga County Clerk's office, Syra- cuse, N. Y., on the 16th day of March, 1908. And the costs of the plaintiff and the defendants, Thomas J. MECHANICS LIENS 773 Judgment; Decree Sustaining Mechanics' Liens O'Brien, John Strathdee and Joseph Leo Nicholson, the Syra- cuse Heater Company, and David E. Brown, being taxed jointly at the sum of dollars. And it appearing that the plaintiff's lien and the liens of the foregoing defendants to foreclose which this action has been brought, has been discharged by a bond given in pursuance of an order of this court and filed in the office of the clerk of the county of Onondaga, N. Y. Now on motion of John F. Nash, one of the plaintiff's at- torneys, it is Adjudged by the court that: "the plaintiff by filing the notice of lien mentioned and described in the complaint, ac- quired a good, valid and subsisting lien against the real property and improvements hereinafter described for the sum of dollars, with interest in the sum of dollars, amounting in all to dollars, in favor of plaintiff against said real property and improvements." And on motion of Cooney & White, attorney for the defend- ant, Thomas J. O'Brien, it is Adjudged by the court: "that the defendant, Thomas J. O'Brien, by filing the notice of lien mentioned and described in his answer acquired a good, valid and subsisting lien against the real property and improvements hereinafter described for the sum of dollars, with interest in the sum of dollars, in favor of said Thomas H. O'Brien against said real property and improvements." And on motion of William' Kennedy, a-ttorney for John Strathdee and Joseph Leo Nicholson, by filing the notice of lien mentioned and described in their answer acquired a good, vaUd and subsisting lien against the real property and improve- ments hereinafter described for the sum of dollars, with interest in the sum of dollars, amounting in all to dollars, in favor of the said John Strathdee and Joseph Leo Nicholson against the said real property and improvements." And on motion of Barnum, Spicer & Wells, attorneys for Syracuse Heater Company, it is 774 Bradbury's lawyers' manual Judgment; Decree Sustaining Mechanics' Liens Adjudged by the court: "that Syracuse Heater Company by filing the notice of hen mentioned and described in its an- swer acquired a good, valid and subsisting lien against the real property and improvements hereinafter described for the sum of dollars, with interest in the sum of dollars, amounting in all to dollars, in favor ^of said Syracuse Heater Company against said real property and improvements." And on motion of "William Kennedy, attorney for David E. Brown, it is Adjudged by the court: "that the defendant, David E. Brown, by filing the notice of lien mentioned and- described in his answer acquired a good, valid and subsisting lien against the real property and improvements hereinafter described for the sum of dollars, with interest in the sum of dollars, amounting in all to dollars in favor of said David E. Brown against said real property and improvements." It is further ordered, decreed and adjudged: "that the defendants, Samuel T. Betts and Edith L. Betts, and each of them and all persons claiming under them, be barred and fore- closed of all right, claim, lien or equity of redemption in the premises hereinafter described; that the said premises be sold according to law under the direction of the sheriff of the county of Onondaga, State of New York; that said sheriff give notice of the time and place of such sale according to law and the practice of this court; and that either or any of the parties to this action may become a purchaser on said sale and that said sheriff execute to the purchaser or purchasers a deed or deeds for the premises sold; and that the sheriff out of the proceeds of said sale, after deducting the amount of his fees and expenses, shall pay the sum of dollars to the plaintiff, and the defendants, O'Brien, Strathdee and Nicholson, Syracuse Heater Co. and David E. Brown, being the amount of their joint costs and disbursements"; that he then pay from the said proceeds the following sums with interest from date as follows : mechanics' liens 775 Judgment; Decree Sustaining Mechanics' Liens I. To the defendant, Thomas J O'Brien, the sum of dollars. II. To the plaintiff, Henry Funda, the sum of dollars. III. To the defendants, John Strathdee and Joseph Leo Nicholson, the sum of dollars. IV. To the defendant, Syracuse Heater Company, the sum of dollars. V. To the defendant, David E. Brown, the sum of dollars. And it is further ordered, adjudged and decreed that this judgment, so far as the enforcement of said liens is provided against the real property and improvements hereinafter de- scribed, is in form only for the purpose of satisfying the condi- tion of said bond. And it is further ordered, adjudged and decreed that the plaintiff recover of the defendants, Samuel T. Betts and Edith L. Betts, owners, and the Bankers' Surety Company of Cleveland, Ohio, as surety, the sum of dollars, together with dollars costs and disbursements and that he have execution therefor; That Thomas J. O'Brien recover of the defendants Samuel T. Betts and Edith L. Betts, owners, and the Bankers' Surety Company of Cleveland, Ohio, as surety, the sum of dollars, and that he have execution therefor; That John Strathdee and Joseph Leo Nicholson recover of the defendants, Samuel T. Betts and Edith L. Betts, owners, and the Bankers' Surety Company of Cleveland, Ohio, as surety, the sum of dollars and that they have execution therefor; That Syracuse Heater Company recover of the defendants, Samuel T. Betts and Edith L. Betts, owners, and the Bankers' Surety Company of Cleveland, Ohio, as surety, the sum of ^ dollars and that it have execution there- for; That David E. Brown recover of the defendants, Samuel T. Betts and Edith L. Betts, owners, and the Bankers' Surety 776 Bradbury's lawyers' manual Satisfaction of Mechanic's Lien Company of Cleveland, Ohio, as surety, the sum of dollars and that he have execution therefor. The following is a description of the said property: (Description of property.) James C. Butler, (Seal.) Onondaga County Clerk. FORM NO. 453 Satisfaction of Mechanic's Lien State of New York County or New York \ ss : City of New York I, John Jones residing at No. , Street in the Borough of Manhattan, City and State of New York, Do hereby certify, that a certain Mechanic's Lien, filed in the oflBice of the Clerk of the County of New York on the day of , one thousand nine hundred and , at o'clock, in the noon, in favor of John Jones, claimant, against the building and lot with the im- provements thereon situate on the southerly side of West Thirty-ninth Street, being twenty-five feet front and rear and one hundred feet deep in the Borough of Manhattan, City and State of New York and known as No. in said street, for the siun of claimed against William Brown as owner and Edward Edwards as contractor is paid and satisfied, and I do hereby consent that the same be discharged of record. Witness, hand, this day of , 19 . John Jones. State of New York County of New York On this day of in the year one thousand nine hundred and before me personally came and ap- peared John Jones to me known and known to me to be the person described in, and who executed the foregoing instru- ment, and he acknowledged to me that he executed the same. {Signature and title of officer.) CHAPTER XLIII FORMS NO. PAGE NO. PAGE 454. Complaint; replevin 777 456. Plaintiff's undertaking on 455. Affidavit and requisition on replevin 780 replevin 779 FORM NO. 454 Complaint; Replevin New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. The plaintiff, complaining of the defendant, alleges: I. That the plaintiff is the owner and is entitled to the im- mediate possession of the following described chattels: {de- scribe them). II. That said chattels are of the value of dollars. III. That on the day of > 19 , said chattels were in the possession of the defendant and on said date last mentioned the plaintiff duly demanded of the defend- ant that said defendant deliver said chattels to the plaintiff and the defendant failed and refused to deliver the same. IV. {Where an actual demand has been made the above allega- 1 A replevin is made by delivering to the Sheriff either the summons or a sum- mons and complaint, together with an affidavit and requisition endorsed thereon, in accordance with the forms given in the text and also a dehvery at the same time to the Sheriff of an undertaking either in the form given in the text or of a surety company. 777 778 Bradbury's lawyers' manual Complaint; Replevin Hon will be sufficient in any case. If the chattels have properly come into the possession of the defendant a demand before action is necessary to sustain the action at all, but if the chattels have wrong- fully come into the possession of the defendant, then a prior de- mand is not necessary. However, it is a safer practice to always make a demand where possible and both allege and prove it.) Wherefore the plaintiff demands judgment against the defendant, adjudging that the plaintiff is the owner and en- titled to possession of said chattels and said chattels be de- livered to the plaintiff, and in case possession thereof cannot be given to the plaintiff that the plaintiff have judgment against the defendant for the smn of dollars, the value of said chattels, together with the sxmi of dollars, dam- ages, and that the plaintiff have such other, further and differ- ent reUef as may be proper, with costs. Ely Franklin, Plaintiff's Attorney, No. 1 Nassau Street, Borough of Manhattan, New York City. [Verification.] REPLEVIN 779 Affidavit and Requisition on Replevin FORM NO. 455 Affidavit and Requisition on Replevin New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. State of New York City of New York ss: County of New York A. B., being duly sworn, says that he is the plaintiff in this action and that he is the owner of and entitled to the immediate possession of the following described chattels: {the chattels should be very particularly described as the sheriff is required to seize them on this affidavit and he must have such information as will permit him to identify the chattels when he comes to execute the requisition.) That an action has been brought by the plaintiff to recover said chattels by the issuance of a summons, which summons together with a verified complaint are annexed to this affidavit. That the said chattels are wrongfully detained by the de- fendant, C. D., and that the alleged cause of the detention thereof, according to deponent's best knowledge, information and behef , is as follows': {state such cause of detention) . That said chattels have not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine, issued in pursuance of a statute of the state or of the United States; nor have said chattels been seized by virtue of an exe- cution or warrant of attachment against the property of the plaintiff or of any person from or through whom the plaintiff has derived title to the chattels since the seizure thereof. 780 Bradbury's lawyers' manual Plaintiff's Undertaking on Replevin (7/ it has been seized, allege that the chattels were exempt from seizure by reason of the facts which must be specified, or that the detentioh of the chattels is unlawful by reason of the facts which must be specified and which have subsequently occurred. See Code Civ. Pro., § 1695.) Sworn to before me, this day of , 19 . {Signature and title of officer.) A. B. {There should be endorsed either on the outside or at the bottom of the affidavit, the following requisition): To G. H., Esq., Sheriff of the County of New York: You are hereby required to replevin the chattels described in the foregoing (within) affidavit. Dated the day of , 19 . Louis Moore, Attorney for Plaintiff, 141 Broadway, Borough of Manhattan, New York City. FORM NO. 456 Plaintiff's Undertaking on Replevin ^ New York Supreme Court, New York County. A. B., Plaintiff, against C. D., Defendant. Whereas an action has been brought (or is about to be brought) in the New York Supreme Court by the above-named ' The sufficiency of the sureties must be approved by the Sheriff. Code Civ. Pro., § 1699. REPLEVIN 781 Plaintiff's Undertaking on Replevin plaintiff agaiast the above-named defendant to recover certain chattels of the estimated value of dollars and said plaintiff desires to cause said chattels to be replevined. ' Now, THEREFORE, in puTSuance of the statute in such case made and provided, we, E. F., of No. , Street, in the City, County and State of New York, and G. H., of No. , Street, in the City, County and State of New York, do hereby jointly and severally undertake in the sum of dollars (not less than twice the value of the chattel as stated in the affidavit), for the prosecution of the said action; for the return of said chattels to the defendant if the possession thereof is adjudged to the defendant, or if the action abates or is dis- continued, before the chattel is returned to the defendant; and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. Dated the day of , 19 . E. F. and G. H. {Ackowledgment.) ss: State of New York County of New York E. F., one of the sureties named in and who subscribed the foregoing undertaking, being duly sworn, says -that he is a resident and freeholder (householder) in the State of New York and is worth the sum of dollars over and above 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 day of , 19 {Signature and title of officer.) E. F. ss: State op New York County of New York G. H., one of the sureties named in and who subscribed the foregoing undertaking, being duly sworn, says that he is a resi- 782 Bradbury's lawyers' manual Plaintiff's Undertaking on Replevin dent and freeholder (householder) in the State of New York and is worth the sum of dollars over and above 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 day of , 19 (Signature and title of officer.) G. H. CHAPTER XLIV MORTGAGES ON REAL PROPERTY AND FORECLOSURE "THEREOF ^ (This chapter was prepared by Henry B. Hammond, Esq., who has had exten- sive experience in such matters on behalf of The Emigrant Industrial Savings Bank) FORMS NO. PAGE 457. Mortgage with interest, tax, assessment, warranty and receiver's clauses 785 458. Extensions of mortgage with new bond 788 459. Extension of mortgage with agreement which is in effect a new mortgage 790 460. Agreement to take assign- ment of mortgage and to extend same with new bond 798 461. Satisfaction of mortgage. . . . 800 462. Notice of pendency of ac- tion to foreclose mortgage 801 463. Notice of object of action which may be served with the summons 802 464. Complaint in foreclosure of mortgage on real property 804 465. Notice of motion for ap- pointment of receiver 818 466. Order to show cause on mo- tion for receiver 819 467. Affidavit to procure order to show cause why receiver should not be appointed . . 820 468. Affidavit of real estate expert on motion for appointment of receiver to accompany preceding affidavit 823 NO. PAGE 469. Order appointing receiver of rents 824 470. Account of receiver of rents 827 471. Affidavit of attorney for re- ceiver for allowance 832 472. Notice of motion for order setthng referee's account. . 834 473. Order confirming receiver's account and making allow- ance to receiver's counsel. . 835 474. Affidavit on motion to desig- nate person to receive summons on behalf of in- fant defendants 837 474a. Order designating person to receive summons on be- half of infant defendants . . 839 475. Affidavit on motion for order for publication of summons as against absent and un- known defendants 840 476. Order for pubUcation of summons against absent and unknown defendants 854 477. Affidavit of mailing 856 478. Summons and notice as pub- lished 857 479. Petition for appointment of guardian ad litem for in- fant defendants 858 480. Consent of guardian 861 12. ^ For assignment of bond and mortgage see Forms Nos. 7 and 8, pages 10 and 783 784 Bradbury's lawyers' manual Forms NO. PAGE 481. Affidavit of guardian as to competency 862 482. Notice of application for ap- pointment of guardian ad litem 863 483. Affidavit of service of notice of application for appoint- ment of guardian ad litem 864 484. Order appointing guardian ad litem of infant defend- ants 865 485. Answer of guardian ad litem 867 486. Affidavit of guardian ad litem for allowance 868 487. Notice of motion to bring in People of the State as party defendant 870 488. Affidavit on motion to bring in People of the State of New York as party de- fendant 871 489. Order bringing in People of the State of New York as a party defendant 873 490. Notice of motion to bring in new parties 874 491. Affidavit on motion to bring in new parties 876 492. Order bringing in new parties 879 493. Notice of motion to strike out parties, bring in parties and correct names of parties. 881 494. Affidavit on motion to strike out parties, bring in par- ties and correct names of parties 882 495. Order striking out parties, bringing in parties and cor- recting names of parties. . 888 496. Affidavit on motion to revive action as against repre- sentatives of deceased party; to bring in new par- ties; to strike out names of parties, and to correct names of parties sued by fictitious names 892 NO. PAGE 497. Order reviving action against representatives of deceased party; bringing in new parties; striking out par- ties, and correcting names of parties sued by fictitious names 895 498. Affidavit of regiilanty 897 499. Notice of motion for judg- ment, reference to compute and amending names of parties 900 500. Affidavit of regularity on motion for judgment, refer- ence to compute and to correct names 901 501. Order for judgment, refer- ence to compute and cor- recting names of parties. . 904 502. Affidavit on motion by plain- tiff to discontinue action . . 606 503. Order of discontinuance on motion of plaintiff 907 504. Affidavit on motion to set aside order of reference and judgment of fore- closure and sale to bring in new parties 908 505. Order setting aside order of reference and judgment of foreclosure and sale to bring in new parties 913 606. Answer that executor as such not liable for defi- ciency as he had no power under will to make mort- gage 916 507. Referee's summons 917 508. Referee's oath 918 509. Referee's report on reference to compute 919 610. Notice of fiUng of referee's report and of motion to find judgment of fore- closure and sale 923 511. Decision and findings after trial 924 MORTGAGES ON READ PROPERTY 785 Mortgage with Interest, Tax, Assessment, Warranty and Receiver's Clauses yo. PAGE 612. Final judgment of fore- closure and sale 929 513. Bill of costs 934 614. Notice of motion to direct referee to sell in separate parcels 935 515. Affidavit on motion to direct referee to sell in separate parcels 936 616. Order directing referee to sell in separate parcels 939 517. Notice of motion to require purchaser to complete or for a resale 641 618. Affidavit of attorney on mo- tion to require purchaser to complete or for a re- sale 942 528. 519. Affidavit of referee to sell on motion to require pur- chaser to complete or for a 529. resale . E46 520. '•Affidavit of service of motion papers on motion to re- quire purchaser to complete or for a resale 947 NO. PAGE 521. Order requiring purchaser to complete or for a resale. . . 948 622. Referee's report of sale 951 623. Notic^ of filing of referee's report of sale and of mo- tion to confirm same 954 624. Affidavit on motion to con- firm referee's report of sale 955 526. Clerk's certificate of no ex- ceptions filed to referee's report of sale 957 526. Affidavit of service of notice of filing referee's report of sale and notice of motion to confirm same 958 527. Order confirming referee's re- port of sale 959 Order to show cause why ex- tra allowance should not be made to referee to sell. , . . 960 Affidavit on motion by referee for extra allowance 961 630. Order granting extra allow- ance to referee to sell 963 631. Request to clerk to docket deficiency judgment 964 FORM NO. 457 Mortgage with Interest, Tax, Assessment, Warranty and Receiver's Clauses This indenture, made the day of , 19 , between John Jones who resides at No. , Street in the Borough of Manhattan, City and State of New York, party of the first part, and William Brown, who resides at No. , Street in the Borough of Manhattan, City and State of New York, party of the second part. Whereas, the said John Jones is justly indebted to the said party of the second part, in the sum of one thousand dollars, lawful money of the United States, secured to be paid by a certain bond or obligation bearing even date herewith, con- ditioned for the payment of the said sum of one thousand 786 Bradbury's lawyers' manual Mortgage with Interest, Tax, Assessment, Warranty and Receiver's Clauses dollars on the day of , 19 , with in- terest at the rate of five per centum per annum payable semi- annually or the first days of January and July (which said sum is part of the purchase price of the property hereinafter described); It being thereby expressly agreed, that the whole of the said principal sum shall become due after default in the payment of interest, taxes or assessments, as hereinafter pro- vided, Now THIS indenture WITNESSETH, that the said party of the first part for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in con- sideration of one dollar paid by the party of the second part, the receipt whereof is hereby acknowledged, does hereby grant and release unto the said party of the second part and to his executors, administrators and assigns forever. All (description of property). (Subject, however, to the lien of a first mortgage of five hundred dollars and accrued interest now a lien on said property.) Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. To HAVE AND TO HOLD the above-granted premises unto the said party of the second part, his executors, administrators and assigns forever. Provided always, that if the said party of the fiirst part, John Jones, his heirs, executors or administrators, shall pay unto the said party of the second part, his executors, administrators or assigns, the said sum of money mentioned in the condition, of the said bond or obligation and the interest thereon at the time and in the manner mentioned in the said condition that then these presents and the estate hereby granted, shall cease, determine and be void, And the said John Jones, the party of the first part, does covenant with the party of the second part as follows: First : That John Jones, the party of the first part, will pay the indebtedness as hereinbefore provided and if default be MORTGAGES ON REAL PROPERTY 787 Mortgage with Interest, Tax, Assessment, Warranty and Receiver's Clauses made in the payment of any part thereof the party of the second part shall have power to sell the premises herein de- scribed, according to law. Second: That John Jones, the party of the first part, will keep the buildings on the said premises insured against loss by fire for the benefit of the Mortgagee. Third: And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the said party of the second part after default in the payment of any installment of principal or of interest for (thirty) days, or after default in the payment of any tax, assessment or water rate for sixty days after notice and demand. Fourth: That John Jones, the party of the first part, will execute or procure any further necessary assurance of the title to said premises, and will forever warrant said title. Fifth: And it is hereby further covenanted and agreed that the said party of the second part, his legal representatives or assigns, shall be at liberty immediately after any default in any of the conditions of said Bond or Mortgage, upon a com- plaint filed, or any other proper legal proceedings commenced for the foreclosure of this Mortgage, to apply for, and shall be entitled as a matter of right, and without regard to the value of the premises above described, or the solvency or insolvency of the party of the first part, or of any owner of said premises, and without notice to the party of the first part, his heirs or assigns, to the appointment by any competent court or tri- bunal of a receiver of the rents, issues and profits of said premises, with the power to lease said premises for a term to be approved of by the Court, with power to pay taxes, assess- ments and water rents, which are or may become liens on said premises, and keep the same insured, and with power to take proceedings to dispossess tenants, and make all necessary repairs, and with such other powers as may be deemed neces- sary, who, after deducting all 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 satis- faction of this Mortgage, and the Bond accompanying the 788 Bradbury's lawyers' manual Extension of Mortgage with New Bond same, or to any deficiency wiiich may arise after applying the proceeds of the sale of said premises to the amount due, in- cluding interest, and costs and. expenses of the foreclosure sale, and the party of the first part hereby assigns to the party of the second part, his executors, administrators and assigns, all rents which are due from the tenants of said premises at the time of such default or which may thereafter become due. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. In presence of John Jones (L. S.) ss: State of New York County of New York On this day of , 19 , before me, personally came and appeared John Jones, to me known and known to me to be the person described in and who executed the foregoing Instriunent, and he acknowledged to me that he executed the same. {Signature and title of officer.) FORM NO. 458 Extension of Mortgage with New Bond Whereas the emigeant industrial savings bank holds a certain bond dated made by A. B. to said Bank, conditioned for the payment of dollars together with the interest thereon, which bond is secured by a mortgage made by said A. B. to said The Emigrant Industrial Savings Bank, dated and recorded in the office of the Register of the County of New York, in Block Series (Mort- gages) Section Liber at page , which bond and mort- gage are now due and payable, and Whereas there is now im- paid on said bond and mortgage the principal sum of dollars, with interest thereon from the day of , 19 , and Whereas C. D. is now the owner of MORTGAGES ON REAL PROPERTY 789 , : — Extension of Mortgage with New Bond the premises covered by said bond and mortgage, and does not desire to pay said bond and discharge said mortgage at this time, and has requested The Emigrant Industrial Savings Bank to extend the time for the pajonent of said principal in- debtedness to the day of , 19 , and Whereas said The Emigrant Industrial Savings Bank has re- fused to consent to such extension unless CD. who resides at No. , Street, Borough of Manhattan, City of New York, execute and deUver to said Bank his bond as further and collateral security for the payment of said principal indebtedness of dollars, together with the interest due and to grow due thereon. Now therefore to induce said The Emigrant Industrial Savings Bank to extend the time for the payment of said prin- cipal indebtedness as above mentioned, know all men by THESE presents that I, C. D., am held and firmly bound unto The Emigrant Industrial Savings Bank, a domestic corporation whose place of business is located at No. 51 Chambers Street in the Borough of Manhattan in the City of New York, in the penal simi of dollars lawful money of the United States to be paid to said The Emigrant Industrial Savings Bank, its successors or assigns, for which payment well and truly to be made I bind myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal. Dated the day of , 19 . The condition of the above obligation is such that if the said C. D., his heirs, executors or administrators, shall pay to said The Emigrant Industrial Savings Bank at its office in the City of New York, or to its successors or assigns the smn of dollars lawful money aforesaid on the day of , 19 , and interest on the same from the day of , 19 , to the day of ,19 , at the rate of per centum per annum, and thereafter at the rate of per centum per annum payable half yearly on the first day of every Jan- uary and July ensuing the date hereof, and shall perform all 790 Bradbury's lawyers' manual 1 ^ Extension of Mortgage with Agreement which is in Effect a New Mortgage the covenants and agreements contained in the mortgage col- lateral hereto and in the agreement extending the time for the payment thereof, the same being hereby made part hereof, then this obligation to be void, otherwise to remain in full force and virtue, and it is expressly agreed that the whole of said principal sum shall become due at the option of said obhgee, its suc- cessors or assigns, without notice or demand after default in the payment of interest for thirty days or after default in the payment of any tax or assessment for ninety days, after the same shall become due and payable. All of the covenants and agreements contained in said mort- gage and in the agreement made by The Emigrant Industrial Savings Bank and for the extension thereof are hereby made part of this instrument. C. D. (L. S.) Sealed and delivered in the presence of: {Add acknowledgment.) FORM NO, 459 Extension of Mortgage with Agreement which is in Effect a New Mortgage Agreement made the eleventh day of January, 1917, be- tween THE emigrant industrial SAVINGS BANK, a domestic corporation whose place of business is located at No. 51 Chambers Street in the Borough of Manhattan in the City of New York, hereinafter designated as the party of the first part, and C. D., who resides at No. East Street in the Borough of Manhattan in the City of New York hereinafter designated as the party of the second part: Whereas the party of the first part is the holder of a certain bond conditioned for the payment of two dollars and interest, made by L. M. and M. N. to R. S., dated ,19 , which bond is secured by a mortgage bearing even date therewith and recorded in the office of the Register of the County of New York on , MORTGAGES ON REAL PROPERTY 791 Extension of Mortgage with Agreement which is in Effect a New Mortgage 19 , in Block Series (Mortgages) Section , Liber , at page , which mortgage covers premises in the Borough of the Bronx in the City of New York, known by the street number Avenue and more particularly described in said mortgage, and Whereas there is now due and owing upon said bond and mortgage the principal sirai of dollars with in- terest thereon at the rate of five per centum per annum from the day of , 19 , and Whereas the party of the second part being the owner of the premises covered by said mortgage has requested the party of the first part to extend the time for the payment thereof as hereinafter provided. Now, THEREFORE, in Consideration of the premises and of the mutual covenants herein contained and of one dollar by each to the other in hand paid the receipt whereof is hereby ac- knowledged, the said parties hereto agree that the time for the payment of said principal indebtedness now owing upon and secured by said bond and mortgage shall be extended to ,19 . Provided that the party of the second part pays interest on said bond and mortgage from the day of , 19 , at the rate of five per centum per annum on the first days of January and July in each and every year and also com- plies with all the other terms and conditions of said bond and mortgage as herein modified. And the party of the second part does hereby covenant and agree that all interest which may accrue and become due upon the bond and mortgage herein described according to the terms of this agreement and payable as herein provided, may be added to the indebtedness secured by the said mortgage and the accompanying bond and shall be a lien on said premises and be secured by said mortgage and the accompanying bond and may be collected thereunder. And the party of the second part does hereby covenant and agree to pay said principal sum and interest as above set forth and to comply with all the other terms and conditions of said 792 Bradbury's lawyers' manual Extension of Mortgage with Agreement which is in Effect a New Mortgage bond and mortgage and that the party of the second part will not pay the said principal sum or any part thereof before the date herein fixed for the payment thereof. The said party of the second part represents that the premises now covered by said mortgage are owned by the said party of the second part and covenants and agrees that there are no offsets or defences to said bond and mortgage and that said mortgage is a valid lien on the premises therein described for the full amount of principal and interest due thereon as above mentioned. It is hereby agreed between the parties hereto that if at any time hereafter and before the principal sum by said bond and mortgage secured shall become payable as above provided, any law shall be passed, deducting from the value of land for the purposes of taxation any lien thereon or changing in any way the laws now in force for the taxation of mortgages or debts secured by mortgages for state or local purposes or the manner of the collection of any such taxes so as to affect said mortgage, the holder of said mortgage and of the debt secured thereby shall have the right to give thirty days' written notice to the owner of said land requiring the payment of the mortgage debt, and it is hereby agreed that if such notice be given, the said debt shall become due, payable and collectible at the expira- tion of said thirty days. It is hereby further agreed that when the terms of this agreement conflict with any of the terms and provisions con- tained in said bond and mortgage, the terms, provisions and agreements contained herein shall prevail. It is hereby further agreed that the said party of the second part shall not assign the rents of the premises covered by said mortgage nor any part thereof without the consent in writing of the holder of the mortgage hereby extended. Should said rents or any part thereof be assigned without such consent, then said mortgage shall at the option of the holder thereof become due and payable immediately, anything herein con- tained to the contrary notwithstanding. It is hereby further agreed that the party of the second MORTGAGES ON REAL PROPERTY 793 Extension of Mortgage with Agreement which is in Effect a New Mortgage part will keep the buildings on the premises described in said mortgage insured against loss by fire for the benefit of the party of the first part. And the whole amount secured by the said mortgage shall, at the option of the party of the first part, immediately become due and payable, anything herein or in said mortgage contained to the contrary notwithstanding, upon any default in keeping the buildings on said premises so insured, or if after appUcation by any holder of the said mort- gage for insurance of said buildings against loss by fire to two or more fire insurance companies lawfully doing business in the State of New York and issuing policies upon buildings situate in the place where the mortgaged premises are situate, the companies to which said application has been made shall re- fuse to give such insurance. And should the party of the first part, by reason of any such insxu-ance against loss by fire, as aforesaid, receive any sum or sums of money for any damage by fire to the said building or buildings, such amount may be retained and applied by said party of the first part toward payment of the amount secured by said mortgage or the same may be paid over either wholly or in part to the said party of the second part or the heirs, executors, successors or assigns of the party of the second part to enable said party of the second part to repair said buUdings or to erect new buildings in their place or for any other purpose or object satisfactory to the said party of the first part, without affecting the lien of said mort- gage for the full amount secured thereby before such damage by fire or such payment over, took place. It is HEREBY FURTHER AGREED that the whole of the princi- pal sum secured by said mortgage or so much thereof as may remain unpaid, shall become due at the option of the said party of the first part after default in the payment of any installment of principal, or in the payment of interest for thirty days or after default in the payment of any tax, assessment or water rate for sixty days after notice and demand, or after default for sixty days after notice and demand in the payment of any installment of any assessment for local improvement hereto- fore or hereafter laid which is or may become payable in annual 794 BRADBURY'S LAWYERS' MANUAL Extension of Mortgage with Agreement which is in Effect a New Mortgage installments and which has affected, now affects or hereafter may affect the said premises, notwithstanding that such in- stallment be not due and payable at the time of such notice and demand, or inmiediately in case of the actual or threatened demolition or removal of any building erected or to be erected upon the said mortgaged premises, anything herein or in said mortgage contained to the contrary notwithstanding. It is hereby further agreed that if default shall be made in the pajrment of the principal sum mentioned in the said bond or of any installment thereof or of the interest which shall accrue thereon or of any part of either at the respective times therein specified for the payment thereof, the party of the first part shall have the right forthwith after any such default to enter upon and take possession of the said mortgaged premises and to let the said premises and receive the rents, issues and profits thereof and to apply the same after payment of all neces- sary charges and expenses on account of the amount secured by said mortgage and said rents and profits are in the event of any such default hereby assigned to the party of the first part. It is hereby further agreed that the party of the first part shall also be at liberty, immediately after any such default upon proceedings being commenced for the foreclosure of said mortgage, to apply for the appointment of a receiver of the rents and profits of the said mortgaged premises without notice, and the party of the first part shall be entitled to the appointment of such a receiver as a matter of right without consideration of the value of the mortgaged premises as security for the amounts due the party of the first part or the solvency of any person or persons liable for the payment of such amounts. It is hereby further agreed by the party of the second part that in default of the payment of any taxes, assessments and water rates which may be imposed by law upon the said mortgaged premises or any part thereof it shall and may be lawful for the said party of the first part, without notice to or demand from the party of the second part, to pay the amount of any such tax, assessment or water rate and any amount so MORTGAGES ON REAL PROPERTY 795 Extension of Mortgage with Agreement which is in Effect a New Mortgage paid, the party of the second part covenants and agrees to re- pay to the party of the first part, with interest thereon without notice or demand and the same shall be a lien on the said mortgaged premises and be secured by the said bond and mort- gage and the whole amount thereby secured if not then due, shall thereupon if the party of the first part so elect, become due and payable forthwith, anything herein or in said mort- gage contained to the contrary notwithstanding. It is hereby further agreed that the party of the second part or any subsequent owner of the premises described in said mortgage shall upon request made either personally or by registered mail, certify in writing to the party of the first part or any proposed, assignee of said mortgage the amount of principal and interest that may be due on said mortgage and whether or not there are any offsets or defences to the same and upon the failure to furnish such certificate after the ex- ■ piration of six days in case the request is made personally or after the expiration of thirty days after the mailing of such request in case the request is made by mail, said mortgage shall become due at the option of the holder thereof, anything herein or in said mortgage contained to the contrary not- withstanding. It is hereby further agreed that the whole of said prin- cipal smn secured by said mortgage and the interest shall become due at the option of the party of the first part upon . failure of any owner of the premises described in said mortgage to comply with any requirement of any Department of the City of New York, within six months after notice in writing of Such requirement shall have been given to the then owner of said mortgaged premises by the party of the first part, any- thing herein or in said mortgage contained to the contrary notwithstanding. It is hereby further agreed that if any action or proceed- ing be commenced by any person other than the holder of said mortgage (except as action to foreclose said mortgage or to collect the debt secured thereby) to which action or proceed- ing the holder of said mortgage is made a party or in which it 796 Bradbury's lawyers' manual Extension of Mortgage with Agreement which is in Effect a New Mortgage becomes necessary to defend or uphold the lien of said mort- gage, all sums paid by the holder of said mortgage for the expense of any litigation to prosecute or defend the rights and lien created by said mortgage (including reasonable counsel fee) shall be paid by the party of the second part, together with interest thereon at the rate of six per centum per annimi and any such siun and the interest thereon shall be a lien on said premises, prior to any right or title to, interest in or claim upon said premises attaching or accruing subsequent to the lien of said mortgage and shall be deemed to be secured by said mortgage and by the bond which it secures. In any ac- tion or proceeding to foreclose said mortgage or to recover or collect the debt secured thereby the provisions of law re- specting the recovery of costs, disbursements and allowance shall prevail unaffected by this covenant. It is hereby further agreed that the obligations and agreements on the part of the party of the second part hereto . agreed to be performed shall be and remain in full force and effect and in nowise be impaired until the actual payment of said principal sum and of all other indebtedness to said party of the first part. And in case of a sale or transfer of any prop- erty embraced in the mortgage held by the party of the first part, as above mentioned, and in case of any agreement or stipulation between the owner or owners of said mortgaged property and the said party of the first part extending the time or modifying the terms of payment above recited, then the above mentioned party of the second part shall continue Uable to pay the sums above agreed to be paid by the party of the second part according to the tenor of any such agree- ment, unless expressly released and discharged in writing by the party of the first part. Nothing herein contained shall prevent the said obligor on said above mentioned bond, from exercising and asserting his, her, its or their right to be subrogated to the rights and in- terests of the party of the first part in and to said bond and mortgage at the due date of said bond and mortgage or at any time thereafter on the payment by said obligor to said party MORTGAGES ON REAL PROPERTY 797 Extension of Mortgage with Agreement which is in Effect a New Mortgage of the first part of the amounts then due thereon with interest, nor prevent said obUgor from caUing upon said party of the first part to foreclose said bond and mortgage at their due date or at any time thereafter as though this agreement had never been made. The maiUng of a written notice or demand by depositing it in any post-office, station or letter box enclosed in a post-paid envelope addressed to the owner of record of said mortgaged premises and directed to such owner at the last address ac- tually furnished to the holder of said mortgage, or if no such address had been furnished, then to such record owner at the mortgaged premises shall be sufficient notice and demand in any case arising under this instrmnent. Nothing herein contained shall impair the 'security now held for said debt or any condition or agreement contained in said bond and mortgage, which bond and mortgage the party of the second part hereby ratifies and confirms as modi- fied by this agreement. This agreement shall be binding upon the successors, heirs, executors, administrators and assigns of the respective parties hereto. In witness whereof The Emigrant Industrial Savings Bank has caused its corporate seal to be hereunto affixed and these piesents to be signed by its President, and the party hereto of the second part has hereunto set her hand and seal the day and year first above written. In the presence of: {Corporate seal.) The Emigrant Industrial Savings Bank By {Signature of President) President C. D. (L. S.) {Add ackowledgments.) 798 Bradbury's lawyers' manual Agreement to Take Assignment of Mortgage and to Extend Same with New Bond FORM NO. 460 Agreement to take Assignment of Mortgage and to Extend Same with New Bond KNOW ALL MEN BY THESE PRESENTS Whereas A. B. is the owner and holder of a certain bond dated , 19 , made by C. D. to E. F. to secure payment of the sum of dollars and interest, which bond is secured by a mortgage made by C. D. to E. F, dated ,19 , and recorded in the office of the Register of the County of New York on , 19 , in Block Series (Mortgages) Section Liber at page , which said mortgage covers premises in the Borough of Manhattan in the City of New York known by the street numbers and more particularly described in said mortgage, and whereas said bond and mortgage are now due and payable, and whereas there is now due and unpaid on said bond and mortgage, the principal sum of dollars together with the interest thereon, and whereas said CD. has requested The Emigrant Industrial Savings Bank, a domestic corporation whose place of business is located at No. 51 Chambers Street in the Borough of Manhattan in the City of New York, to advance the siun of dollars and take an assignment of said bond and mortgage from A. B. and extend the time for the payment thereof for such time and upon such terms as may be agreed upon by The Emigrant Industrial Savings Bank and C. D. and, Whereas said The Emigrant Industrial Savings Bank has refused to advance said sum of dollars and take an assignment of said bond and mortgage and extend the time for the payment thereof as above mentioned, unless C. D., the undersigned, execute and deliver to said Bank his bond as further and collateral security for the payment of said bond and mortgage, Now, THEREFORE, to induce The Emigrant Industrial Sav- MORTGAGES ON REAL PROPERTY 799 Agreement to Take Assignment of Mortgage and to Extend Same with New Bond ings Bank to advance the sum of dollars and take an assignment of the above-mentioned mortgage, and extend the time for the payment thereof as aforesaid and in consid- eration thereof, I, C. D., residing at No. , Street, Borough of the Bronx, City of New York, do hereby declare that I am held and firmly bound unto said The Emigrant Industrial Savings Bank in the penal sum of dollars lawful money of the United States to be paid to said The Emigrant Industrial Savings Bank, its successors or as- signs, for which payment well and truly to be made I bind my- self, my heirs, executors and administrators firmly by these presents. Sealed with my seal. Dated the day of , 19 . The condition of the above obligation is such that if the said C. D. or his heirs or assigns shall pay to said The Emigrant Industrial Savings Bank at its office in the City of New York or to its successors or assigns, the sum of dollars lawful money aforesaid, together with the interest thereon at the times and in the manner set forth in the above-mentioned agreement for the extension of said mortgage and shall perform all the agreements and covenants contained in said mortgage and in said agreement for the extension thereof, then this obUgation to be void, otherwise to remain in full force and virtue. All of the agreements and covenants contained in said mortgage and extension agreement are hereby made part of this instrument. Sealed and deUvered in the presence of: C. D. (L. S.) {Add acknowledgment.) 800 bradbuby's lawyers' manual Satisfaction of Mortgage FORM NO. 461 Satisfaction of Mortgage (N. Y. Register's form) Know all men by these presents, that I, William Brown, residing at No. , Street in the Borough of Man- hattan, City and State of New York, Do HEREBY CERTIFY that a Certain indenture of mortgage, bearing date the day of , 19 , made and executed by John Jones to me (William Smith) to secure pay- ment of the principal sum of one thousand ($1,000) dollars and interest, and duly recorded in the office of the Register of the County of New York, in Liber of Mortgages, of Section , page , on the day of > 19 , (and was duly assigned by Wilham Smith to me by an instrument in writing dated the day of > 19 , and duly recorded in the office of the Register of the County of New York in Liber of Mortgages, of Section , page , on the of , 19 ). Is paid, and do hereby consent that the same be discharged of record. Dated the day of , 19 . In presence of William Brown. State op New York ] County op New York J On the day of , 19 , before me came William Brown to me known to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same. {Signature and title of officer.) MORTGAGES ON ilEAL PROPBRTy 801 Notice of Pendency of Action to Foreclose Mortgage FORM NO. 462 Notice of Pendency of Action to Foreclose Mortgage New York Supreme Court, County of New York. The Emigrant Industrial Savings Bank Plaintiff, against Lucie A. P. Littlefield, Defendant. Notice is hereby given that an action has been com- menced and is pending in this Court, upon a complaint of the above-named plaintiff against the above-named defendant, for the foreclosure of a certain mortgage bearing date the 26th day of July, 1897, made and executed by the defendant to the plaintiff to secure payment of the sum of eight thousand five hundred (18,500) dollars and interest, which said mortgage was duly recorded in the office of the Register of the City and County of New York on the twenty-sixth day of July, 1897, at 56 minutes after one o'clock in the afternoon in Block Series (Mortgages) Section 6, Liber 65, page 115, and indexed under Block number 1724 on the Land Map of the City of New York. And notice is further given that the premises affected by the said foreclosure action are, at the time of the filing of this notice^ situate in the Borough of Manhattan, in the County and State of New York, and are described in said mortgage as follows : {add description as in complaint) . Dated New York, August 15, 1916. R. & E. J. O'GORMAN, Attorneys for Plaintiff, 51 Chambers Street, Borough of Manhattan, City of New York. 802 BRADBURY'S LAWYERS' MANUAL Notice of Object of Action Which May be Served with the Summons The Clerk of the County of New York is hereby directed to index this notice to the name of all the defendants. R. & E. J. O'GORMAN Attorneys for Plaintiff. FORM NO. 463 Notice of Object of Action Which May be Served with the Summons (Code Civ. Pro., §423) New York Suprenae Court, County of New York. John Currie Wilmerding and Thomas Watson, as Executors of the Last Will and Testament of William McKee, deceased. Plaintiffs, against Meyer Goldberg and Mary Gold- berg, his wife, Frank Freeman, said name being fictitious, etc., and others. Defendants. To the above-named defendant Frank Freeman, the true name of said defendant being unknown to the plaintiffs and said name Frank Freeman being fictitious, it being intended thereby to designate a tenant and occupant of the premises covered by the mortgage being foreclosed in this action : Pursuant to Section 423 of the Code of Civil Procedure, take notice that the object of this action in which a summons is herewith served upon you, is to foreclose a mortgage executed by Meyer Goldberg and Mary Goldberg, his wife, and Abraham Greenberg and Esther Greenberg, his wife, to William McKee, plaintiffs' testator, dated November 23d, 1906, and recorded in the Office of the Register of the County of New York on MORTGAGES ON REAL PROPERTY 803 Notice of Object of Action Which May be Served with the Summons November 23rd, 1906, at fifty-two minutes after two o'clock in the afternoon, in Block Series (Mortgages) Section 7, Liber 223, page 268, and indexed under Block Number 1855 on the Land Map of the City of New York, to secure the payment of the siun of twenty thousand dollars, with interest thereon from November 23d, 1906. That there is now due and owing to these plaintiffs on said bond and mortgage the siun of twenty thousand dollars, with interest thereon from the 23d day of May, 1912; that the fol- lowing is a description of the mortgaged premises: {add descrip- tion). That no personal claim is made against you in this action. Dated, New York, November 29, 1912. (Signature and post-ojfice address of attorneys.) 804 kradbery's lawyers' manual Complaint in Foreclosure of Mortgage on Real Property FORM NO. 464 Complaint in Foreclosure of Mortgage on Real Property ^ New York Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, against John Jones and Sarah Jones, his wife; William Brown, as Executor under the Last Will and Testament of George Rogers, deceased; "William" Evarts, the name ' ' William ' ' being fictitious, the real Christian name of this defendant being unknown to the plaintiff; William Smith, as administrator of the goods, chattels and credits that were of John Smith, deceased; Peter J. McDonnell and all other heirs at law of Peter J. McDon- nell, deceased, and their husbands, wives or widows, heirs at law, dev- isees, legatees, executors or admin- istrators, judgment creditors, as- signees, grantees, trustees, trustees in bankruptcy, receivers, lienors and successors in interest, and their respective husbands, wives or widows, if any, all of whom, and' whose names and places of residence, except as herein stated, are unknown to plaintiff,^ Defendants. ' This is a composite complaint showing the varioiis allegations in such a plead- ing. Naturally, therefore, this complaint is not consistent taken as a whole. ^ The complaint should contain the names of all the parties. The recital above was used in an actual case of absentees when no information could be secured of persons who might have an interest in the property which interest was subject to the lien of the mortgage. MORTGAGES ON REAL PROPERTY 805 Complaint in Foreclosure of Mortgage on Real Property The plaintiff, complaining of the defendants, alleges: I. That the plaintiff is a domestic corporation. (Allegation of execution of bond and mortgage:) II. That the defendant Lucie A. P. Littlefield for the pur- pose of securing to the plaintiff the payment of the sum of eight thousand five hundred dollars, with interest thereon on or about the twenty-sixth day of July, 1897, executed and delivered to the plaintiff her certain bond bearing date, on that ' day, sealed with her seal, whereby she bound herself, her heirs, executors and administrators in the sum of Seventeen thousand dollars upon condition that the said obligation should be void if she, her heirs, executors or administrators should pay to the plaintiff the said sum of eight thousand five hundred dollars on the twenty-sixth day of July, 1898, and also interest on the same at and after the rate of four and one-half per centum per annum. That as collateral security for the payment of the said in- debtedness, the said defendant Lucie A. P. Littlefield on the same day duly executed, acknowledged and dehvered to the plaintiff a certain mortgage whereby she granted, released and conveyed to the plaintiff certain premises in the Borough of Manhattan in the City of TSTew York which were described in said mortgage as follows: {add description). That the said mortgage continued the same condition as the said bond and in case of default in the payment of the said sum of money or of any part thereof or the interest that might grow due thereon the said plaintiff was thereby empowered to sell the said mortgaged premises according to law. (Bond and mortgage executed by trustee of an express trust under order of court:) III. That the defendant Bernandina Gorgers individually and as trustee under and by virtue of a trust deed bearing date the tenth day of July, 1890, between Robert Stewart and said For a complaint upon the foreclosure of a mortgage against subordinate lienors who are not served with summons in a prior foreclosure suit, from the case of Vought V. Levin, 142 App. Div. 623; 127 Supp. 479, see 1 Bradbury's Pl. & Pr. Rep. 38. 806 Bradbury's lawyers' manual Complaint in Foreclosure of Mortgage on Real Property Bernandina Gorgers, said deed being recorded in the office of the Register of the city and county of New York on July 10, 1890, in Liber 2346 of Conveyances, p. 101, for the purpose of securing to the plaintiff payment of the sum of five thousand five hundred dollars, with interest thereon on or about the 28th day of January, 1901, executed and delivered to the plaintifT her certain bond bearing date on that date, sealed with her seal, whereby she bound herself, her successors, heirs, executors and administrators in the sum of eleven thousand dollars upon condition that the said obligation should be void, if she, her successors, heirs, executors or administrators should pay the plaintiff the said smn of five thousand five hundred dollars on the 28th day of January, 1902, and also interest on the same at and after the rate of four percentum per annum. (Allegation as to execution of mortgage.) That said bond and mortgage was made, executed and de- livered under and in pursuance of an order of the Supreme Court of the State of New York, entitled "In the Matter of the Ap- plication of Bernandina Gorgers as Trustee of an expressed trust of real property for leave to mortgage the fee," duly made and entered on the 15th day of January, 1901. {Bond and mortgage executed by trustee under will jmrsuant to an order of court:) IV. That on or about the 11th day of May, 1908, one James Wall died having duly executed his Last Will and Testament which was duly admitted to probate by the Surrogate's Court of the County of New York. That at the time of his death said James Wall was the owner of the premises hereinafter described, subject to the mortgage made by Edward H. Kelly and wife and James Wall and wife to the plaintiff, to secure payment of eighteen thousand dollars ($18,000) and interest, and de- scribed in paragraph "Third" in the first cause of action of this complaint. That in and by said Last Will and Testament said James Wall did devise said real property subject to said mortgage to the defendant George L. Donnellan upon the trusts provided in said Will. That acting under and by virtue of an order of the Supreme Court entered in the office of the Clerk of MORTGAGES ON REAL PROPERTY 807 Complaint in Foreclosure of Mortgage on Real Property the County of New York on the 9th day of August, 1910, the defendant George L. Donnellan, as sole Trustee under the Last Will and Testament of James Wall, deceased, for the purpose of securing to plaintiff payment of the sum of five thousand dollars with interest thereon, on or about the 26th day of August, 1910, executed and delivered to the plaintiff his certain bond, bearing date on that day, sealed with his seal, whereby he bound himself and his successors in the sum of ten thou- sand dollars, upon condition that the said obligation should be void, if he or his successors should pay to the plaintiff the said sum of five thousand dollars on the twenty-fifth day of August, 1915, and also interest on the same at and after the rate of five per centum per annum. (Like allegation as to execution of mortgage.) (Bond and mortgage executed by committee of incompetent under leave of court:) V. That on the 27th day of January, 1909, an order was duly made and entered by the Supreme Court of the State of New York entitled In the Matter of the Application of Elmore S. Banks and John C. Shaw, as Committee of Julia M. Curtiss, an incompetent person, for leave to mortgage and sell certain real property of the said incompetent, which said order did among other things order that the Lawyers' Title Insurance and Trust Company, the duly appointed Special Guardian of the defendant, Julia M. Lawrence, then Julia M. Curtiss, in the name of and on behalf of said Julia M. Curtiss execute and acknowledge a bond to the plaintiff in this action to secure the payment of the smn of one hundred and seventy thousand dollars in three years, with interest at the rate of five and one- half per centmn per annum payable semi-annually and a mort- gage in due form to secure said bond, upon the property herein- after described and that the said Special Guardian deliver the said bond and mortgage to the said plaintiff. That thereafter and on or about the 28th day of January, 1909, the defendant Julia M. Lawrence, then Julia M. Curtiss, by said Lawyers' Title Insurance and Trust Company, her Special Guardian, for the purpose of securing to the plaintiff 808 Bradbury's lawyers' manual Complaint in Foreclosure of Mortgage on Real Pioperty payment of the sum of one hundred and seventy thousand dollars, with interest thereon, executed and delivered to the plaintiff, her certain bond bearing date on that date, duly sealed, whereby she bound herself, her heirs, executors and ad- ministrators, in the sum of three hundred and forty thousand dollars upon condition that the said obligation should be void, if she, her heirs, executors or administrators, should pay the plaintiff the said sum of one hundred and seventy thousand dollars on the 28th day of January, 1912, and also interest on the same at and after the rate of five and one-half per centum per annum. {Like fiillegation as to execution of mortgage.) That thereafter said Julia M. Curtiss intermarried with the defendant, G. Alfred Lawrence, whose wife she now is. (Allegations where original mortgagee has died and the executors or administrators have assigned the bond and mortgage to the plaintiff's intestate who has died since the action was begun:) VI. That on or about the 15th day of July, 1905, the said Marianne 0' Gorman (the original mortgagee) died leaving a last Will and Testament which was duly admitted to probate in the Surrogate's Court of the County of New York on the 3rd day of August, 1905, and that on the 4th day of August, 1905, Letters Testamentary were duly granted by and issued out of the said Surrogate's Court to Richard O'Gorman and Edward J. O'Gorman, the Executors named therein, both of which Executors duly qualified and are now acting under said Letters Testamentary. That on or about the first day of November, 1905, the said Richard O'Gorman and Edward J. O'Gorman, as Executors of the last Will and Testament of Marianne O'Gorman, de- ceased, by an instrument in writing, dated on said day, under their hands and seals, duly assigned said bond and mortgage^ to the plaintiff's intestate for value, which said assignment was duly recorded in the office of the Register of the County of '■ While an allegation of the, assignment of a mortgage without an allegation of the assignment of the bond which the mortgage secures, is insufficient to state a cause of action to foreclose the mortgage, nevertheless, under the rule of Uberality MORTGAGES ON REAL PROPERTY 809 Complaint in Foreclosui'e of Mortgage on Real Property New York on the fifth day of November, 1909, at fifty-five minutes after two o'clock P. M. in Block Series (Mortgages) Section 6, Liber 258, page 375, and indexed under Block Number 1726 on the Land Map of the City (now County) of New York. That on or about the 19th day of April, 1910, Clare M. Knoed- ler, the original plaintiff in this action, died intestate leaving her surviving her husband, this plaintiff, and that Letters of Administration upon her Estate were granted to this plaintiff by the Surrogate of the County of New York on the 29th day of April, 1910, and said plaintiff is now such Administrator. {Allegation that defendant is owner as trustee under will of owner of equity of redemption:) VII. That thereafter said James Wall died leaving a Last Will and Testament which was duly admitted to probate by the Surrogates' Court of the County of New York. That at the time of his death he was the owner of said premises subject to the lien of said mortgage, and that in and by his Will he devised said property to the defendant George L. Donnellan in trust for the uses and purposes stated in said Will. (Allegation of assignment of bond and mortgage:) VIII. That on or about the 12th day of June, 1914, the said The New York Savings Bank by an instrument in writing under its corporate seal, duly assigned said bond and mortgage to the plaintiff for value, which said assignment was duly recorded in the office of the Register of the County of New York on the 12th day of June, 1914, at 3 o'clock and 46 min- utes P. M., in Block Series (Mortgages) Section 7, Liber 329, page 379, and indexed under Block No. 2053 on the Land Map of the City of New York. (Allegation where the original mortgagee or the holder of a mortgage by assignment has died and the action is brought by executors or administrators:) IX. That Richard Lathers departed this life on the 17th it was held that an additional allegation "that the plaintiffs now are and have been since the date of said assignment, the true and lawful owners of said Bond and Mortgage," was sufficient to cure the defect. Schade v. McGovern, 2 Brad- bury's Pl. & Pb. Rep. 143. 810 Bradbury's lawyers' manual Complaint in Foreclosure of Mortgage on Real Property day of September, 1903, leaving a Last Will and Testament, which was duly admitted to probate by the Surrogate of West- chester County on the 14th day of November, 1903, and Letters Testamentary thereon were on that day duly issued by said Surrogate to Abby P. Lathers, Richard Lathers, Jr., and Richard O'Gorman, who were the Executors named in said Will, and that said Abby P. Lathers died on the 2d day of February, 1904, and that the plaintiffs, said Richard Lathers, Jr., and Richard O'Gorman, duly qualified and entered upon their duties as such Executors and are now acting as such Executors. (Another form of allegation under same circumstances as preceding paragraph:) X. That the said John H. Gray died in the County of West- chester on the 16th day of June, 1911, of which county he was a resident, leaving a Last Will and Testament which was admitted to probate by the Surrogate's Court of Westchester County on the 17th day of July, 1911, and Letters Testamen- tary thereon were issued to the defendants Augustus B. Gray and Lizzie E. Gray, named as Executors in said will, and they are now acting as such executors. (Allegation as to recording mortgage:) XL That the said mortgage was duly recorded in the office of the Register of the County of New York on the twenty- sixth day of July, 1897, at 56 minutes after one o'clock in the afternoon in Block Series (Mortgages) Section 6, Liber 65, page 115, and indexed under Block number 1724 on the Land Map of the County of New York. (Allegation as to insurance clause:) XII. That the said mortgage contained a clause which pro- vided that the said obligor should keep the buildings on said premises insured against loss by fire for the benefit of the plaintiff. (Allegations as to interest, tax and assessment clauses:) XIII. That the said mortgage contained the following clauses : "Third. And it is hereby expressly agreed that the whole of MORTGAGES ON REAL PROPERTY 811 Complaint in Foreclosure of Mortgage on Real Property said principal sum shall become due at the option of the said party of the second part after default in the payment of any interest for twenty days, or after default in the payment of any tax or assessment for ninety days after notice and de- mand." {Receiver clause:) XIV. That it was expressly agreed in and by said mortgage that the plaintiff should be at liberty immediately after any such default, upon proceedings being commenced for the fore- closure of said mortgage to apply for and the plaintiff without consideration of the value of the mortgaged premises as security for the debt, or of the solvency of any person or persons hable for the payment of said debt should be entitled as a matter of right to the appointment of a receiver of the rents and profits of said premises with power to lease said premises or such part thereof as might not then be under lease, and with such other power as might be deemed necessary, who after deducting all proper charges and expenses attending the execution of said trust as receiver, should apply the residue of said rents and profits to the payment and satisfaction of the amount re- maining secured by said mortgage, or to any deficiency which might exist after applying the proceeds of the sale of said premises to the payment of the amount due, including interest and the cost of the foreclosure and sale. (The same; another form of allegation:) XV. That said mortgage also contained the following clauses, to wit: "That if default shall be made in the payment of the prin- cipal simi mentioned in the condition of said bond, or of the interest which shall accrue thereon, or of any part of either at the respective times therein specified for the payment thereof, the said party of the second part shall have the right forthwith after any such default to enter upon and take pos- session of the said mortgaged premises and to let the said premises and receive the rents, issues and profits thereof, and to apply the same after payment of all necessary charges and expenses on account of the amount hereby secured, and said 812 Complaint in Foreclosure of Mortgage on Real Property rents and profits are in the event of any such default, hereby assigned to the party of the second part. "That the said party of the second part shall also be at liberty immediately after any such default upon proceedings being commenced for the foreclosure of this mortgage, to apply without notice for, and the said party of the second part, without consideration of the value of the mortgaged premise as security for the debt or of the solvency of any person or persons liable for the payment of such debt, shall be entitled as a matter of right, to the appointment of a receiver of the rents and profits of said premises, with power to lease said premises or such part thereof as may be deemed necessary, who after deducting all proper charges and expenses attending the execution of the said trust as receiver, shaU apply the residue of said rents and profits to the payment and satisfaction of the amount remaining secured hereby, or to any deficiencies which may exist after applying the proceeds of the sale of said premises to the payment of the amount due, including interest and the cost of the foreclosure and sale. {Use to be made of money advanced on mortgage:) " The proceeds of this mortgage being intended to be used for the purposes of making alterations in or rebuilding build- ings on said lands and premises and to preserve or improve the same and to pay ofT existing mortgages upon said premises in accordance with the terms of the will of Martin Schrenkeisen, deceased, aforesaid." {Allegation of payment of portion of principal:) XVI. That on or about the 15th day of May, 1913, a pay- ment was made on account of the principal of said mortgage in the amount of seventy-two thousand dollars, leaving a balance of principal due thereon of twenty-three thousand dollars. {Allegation of release of portion of mortgaged premises from lien of mortgage:) XVII. That on or about the 15th day of May, 1913, the plaintiff by instrument in writing bearing date on that day, released from the lien of the aforesaid mortgage a portion of MORTGAGES ON REAL PROPERTY 813 Complaint in Foreclosure of Mortgage on Real Property the above-described premises, said released portion being described as follows : {add description of portions released) . That said instrument releasing said portion of the mort- gaged premises was executed by the said plaintiff as party of the first part to one John Oscar Delamater as party of the second part, and was duly recorded in the office of the Register of the County of New York on the 16th day of May, 1913, in Block Series (Conveyances) Section 5, Liber 18, Conv., p. 368. That the residue of the mortgaged lands retained by the plaintiff as security for the money remaining due on said mort- gage are bounded and described as follows: (add description of remaining property) . (Allegation as to extension of mortgage with increased interest rate:) XVIII. That thereafter and on or about the 22d day of August, 1910, the defendant George L. Donnellan as sole Trustee under the Last Will and Testament of said James Wall, deceased, did enter into a written agreement with the plaintiff, bearing date on that day, whereby the plaintiff did extend the time for the payment of the principal of said bond and mortgage to the 25th day of August, 1915, and in con- sideration thereof the defendant George L. Donnellan as sole Trustee under the Last Will and Testament of James Wall, deceased, did agree with the plaintiff that the interest on said bond and mortgage should be at the rate of four and one-half per centum per annum to the first day of July, 1910, and there- after at and after the rate of five per centum per annum. {Allegations of incumbrances on property as to which it must be sold under the decree in foreclosure. Party wall:) XIX. Subject, however, to the terms, covenants and condi- tions of a certain agreement in writing dated January 2, 1888, by and between John B. Gorgers and John Brennan, relating to the use of the easterly wall of the building on said premises as a party wall.'^ 1 If there are any party wall agreements or easements of any kind which are incumbrances on the property as to which they must be sold they should be stated in the complaint so they can be enumerated in the judgment which must be fol- 814 Bradbury's lawyers' manual Complaint in Foreclosure of Mortgage on Real Property (The same. Restrictions as to character of buildings:) XX. That said mortgage was made subject to the covenants against nuisances and restrictions as to the character of build- ings, if any, contained in early deeds. (The same. Beam right; elevated railroad easement:) XXI. That said mortgage is subject to a beam right agree- ment recorded in said Register's office in Liber 852 of Con- veyances at page 645, and to the rights if any acquired by any elevated railroad company for the operation of an elevated railroad in Thirty-fourth Street. (Allegation of principal becoming due upon default in pay- ment of interest or taxes:) XXII. That it was covenanted in and by said mortgage that the whole of said principal smn should become due at the option of the mortgagee therein named, its successors or assigns, after default in the payment of interest for thirty days or after default in the payment of any tax or assessment for ninety days after notice and demand.^ (Default in payment of taxes by which mortgage becomes due:) XXIII. That on or about the first day of November, 1914, there became due to the City of New York for taxes assessed against the premises covered by said mortgage, the sima of eighty-nine dollars being for the second half of 1914 taxes. That more than ninety days have elapsed since said taxes became due and payable and after notice and demand said amount remains in default. That the plaintiff elects that the whole of said principal sum be now due and payable and there is now justly due the plaintiff on said bond and mortgage the principal sum of eight thousand dollars, with interest thereon from the first day of January, 1915, at the rate of five per centum per annum. lowed by the referee who sells; otherwise the purchaser might refuse to take title. ' Whenever a notice or demand is specified to make the principal due for non- payment of an instalment of interest, or nonpayment of taxes such a notice should be given or demand made and this notice or demand should be pleaded. MORTGAGES ON REAL PROPERTY 815 Complaint in Foreclosure of Mortgage on Real Property {Default in payment of interest on prior mortgage by which mortgage being foreclosed became due:) XXIV. That it was therein expressly agreed that should any default be made in the payment of the interest on either of two prior mortgages on the premises thereby granted and released and should such interest remain unpaid and in ar- rears for the space of ten days or should any suit be commenced to foreclose either of said prior mortgages, then the amount secured by said mortgage and the accompanying bond should become and be due and payable at any time thereafter at the option of the owner or holder of this mortgage. That the defendants have failed to comply with the con- dition of said bond and mortgage by omitting to pay the in- terest due September 1st, 1911, upon the principal sum of one of said prior mortgages, to wit: — A certain mortgage made on March 10th, 1898, by one Phillip Weinberg to one Rosie Neaderthal to secure the payment of six thousand five hundred dollars; that more than ten days have elapsed since said inter- est became due and said interest still remains unpaid and in arrears and that on the 28th day of September, 1911, an action was commenced to foreclose said prior mortgages; that plain- tiff elects that the whole principal sum of the mortgage held by him as aforesaid be now due and payable and that there is now justly due said plaintiff on said bond and mortgage the sum. of two thousand five hundred dollars, with interest thereon from the 3d day of August, 1911, at the rate of six per centum per annum. (Default in payment of principal and in securing insurance:) XXV. That the defendant Lucie A. P. Littlefield has failed to comply with the condition of said bond and mortgage by omitting to pay the sum of eight thousand five hundred dol- lars which became due and payable on the twenty-sixth day of July, 1898, and there is now justly due the plaintiff on said bond and niortgage the principal sum of eight thousand five hundred dollars, with interest thereon from the first day of January, 1916, at the rate of five per centum per annum, the rate of interest having been by agreement increased to that 816 Bradbury's lawyers' manual Complaint in Foreclosure of Mortgage on Real Property rate. In addition to which there is due also premium of fire insurance amounting to one hundred and sixteen and ten hundredths dollars the plaintiff having insured said premises after default of the defendant to do so. (Default in payment of interest; election that principal is due:) XXVI. That the defendants have failed to comply with the condition of the said bond and mortgage by omitting to pay the sum of one thousand five hundred and sixty-two dol- lars and fifty cents being the semi-annual interest which be- came due and payable on the first day of January, 1916, and by omitting to pay the sum of one thousand five hundred and sixty- two dollars and fifty cents being the semi-annual interest which became due and payable on the first day of July, 1916. That more than twenty days have elapsed since said respective amounts of interest became due, and the same remains in default and the plaintiff elects to declare the whole of said principal sum due in accordance with the option contained in Third Clause of Mortgage, and there is now justly due the plaintiff on said bond and mortgage the principal sum of sixty- two thousand five hundred dollars with interest thereon from the first day of July, 1915, at the rate of five per centum per annum, and premium of fire insurance amounting to $153.77, paid by the plaintiff, after defendant's default in having said premises insured. (People of State holding unsatisfied judgment against a party defendant. See Code Civ. Pro., ^1627, as am'd by L. 1916, c. 331:) XXVII. That The People of the State of New York is made a party defendant herein for the reason that it is the holder of a lien on the real property being foreclosed in this action, the said lien consisting of an unsatisfied judgment recovered against the defendant D. H. Jackson Co., owner of said real property, by the People of the State of New York, docketed on May 2, 1916, in the Court of Special Sessions of the Coimty of New York in the amount of fifty dollars. That said judgment was docketed subsequent to the recording of the mortgage being foreclosed herein and that by reason thereof MORTGAGES ON REAL PROPERTY 817 Complaint in Foreclosure of Mortgage on Real Property the People of the State of New York is a necessary and proper party defendant to this action. (People of State holding lien by reason of unpaid transfer tax. See Code Civ. Pro., § U7:) XXVIII. That the People of the State of New York is made a party defendant herein because of the fact that the transfer tax upon the estate of John Reynolds, is unpaid and for no other reason. The said John Reynolds died testate on April 8, 1913, a resident of the City and County of New York; the heirs at law and next of kin of said John Reynolds, deceased, are Ellen Reynolds, Bridget Reynolds, Patrick Reynolds, Bernard Reynolds, Francis Reynolds, Katie Kane and Mary Kane. His will was proved in New York County, June 25, 1913, and recorded in Liber 985 of Wills, page 66. Letters Testamentary were issued to Ellen Reynolds, a defendant herein, and his estate has not been administered. (General allegation as to claims of defendants other than mort- gagors:) XXIX. That the defendants other than the defendants who executed said bond and mortgage have or claim to have some interest in or lien upon the said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to the lien of the aforesaid mortgage and is sub- ordinate thereto. (Allegation as to no other action brought:) XXX. That no other action has been had for the recovery of the said sum of money secured by said bond and mortgage or any part thereof. Wherefore, plaintiff demands judgment that the defend- ants and all persons claiming under them subsequent to the commencement of this action may be forever barred and fore- closed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises may be de- creed to be sold according to law; that the money arising from the sale may be brought into Court; that the plaintiff may be paid the amount due on said bond and mortgage, with interest 818 Bradbury's lawyers' manual Notice of Motion for Appointment of Receiver to the time of such payment and the costs and disbursements of this action so far as the amount of such money properly appUcable thereto will pay the same, and that the defendant Lucie A. P. Littlefield may be adjudged to pay any deficiency which may remain after applying all of said money so appUca- ble thereto, and that the plaintiff may have such other, further or different relief in the premises as shall be just and equitable, R. & E. J. O'GOBMAN, Plaintiff's Attorneys, No. 51 Chambers Street, Borough of Manhattan, City of New York. FORM NO. 465 Notice of Motion for Appointment of Receiver ^ (Title Same as Complaint) Please take notice that upon the affidavit of Charles Campbell, verified the day of , 19 , the affidavit of J. J. P., sworn to the day of , 19 , and the summons and complaint herein, copies of which are hereto annexed, a motion will be made at a Special Term, Part I of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein, on the day of , 19 , at 10:30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order appointing a receiver of the rents, issues and profits of the real estate described in the complaint herein, and for such other and further relief as to the court may seem just, and that the annexed order appointing said receiver will then be submitted to this Court. Dated, New York, , 19 . To: R. & E. J. O'GoRMAN, William L. Tierney, Esq., Attorneys for Plaintiff,. Attorney for Defendants, Mary Caslin O'Beirne & George O'Beirne. ' A receiver will not be appointed in any case without showing grounds therefor MORTGAGES ON REAL PROPERTY 819 Order to Show Cause on Motion for Receiver FORM NO. 466 Order to Show Cause on Motion for Receiver New York Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, against Martin Schrenkeisen, Junior, as Executor of and Trustee under the Last Will and Testament of Martin Schrenkeisen, deceased. Defendant. On reading the annexed affidavits of John J. PuUeyn and Henry Brady, sworn to the day of , 19 , and the summons and complaint herein, and on motion of R. & E. J. O'GoRMAN, the attorneys for the plaintiff, Ordered that the defendant Martin Schrenkeisen, Junior, as Executor of and Trustee under the Last Will and Testament of Martin Schrenkeisen, deceased, or his attorney, show cause at a Special Term,_ Part I of the New York Supreme Court, to be held in and for the County of New York, at the County Courthouse therein on the ' day of , 19 , at ten thirty o'clock in the forenoon or as soon thereafter as counsel can be heard, why an order should not be made ap- pointing a receiver of the rents, issue and profits of the real estate described in the complaint in this action, and why the plaintiff should not have such other or further rehef as may be just. Service of this order and the papers on which it is granted other than a covenant to that effect in the mortgage. An assignment of rents in the mortgages may have some bearing on the application, however. 820 Affidavit to Procure Order to Show Cause why Receiver Should not be Appointed on or before the day of , 19 , shall be sufficient. Dated, New York, August 29th, 1916. Geo. V. MuLLAN, Justice of the Supreme Court of the State of New York. FORM NO. 467 Affidavit to Procure Order to Show Cause why Receiver Should not be Appointed ^ (Title Same as Preceding Form) State of New York City and County of New York ss: John J. Pulleyn, being duly sworn, says: I. That the plaintiff in the above-entitled action is a cor- poration and that deponent is the President thereof. II. That this action is brought for the foreclosure of a mort- gage made by the defendant to the plaintiff to secure to the plaintiff the payment of the sum of $75,000, with interest at the rate of five per centum per annum, said mortgage being dated the 5th day of May, 1913, and duly recorded on the 5th day of May, 1913, in Block Series (Mortgages) Section 1, Liber 171, page 133, and indexed under Block No. 258 on the Land Map of the City of New York, and covering premises described as follows: (Description as in the complaint.) III. That no part of the principal of said mortgage has been paid and that there is now due thereon the said principal sirni of 175,000, with interest thereon from the 1st day of July, 1915, at the rate of five per centima per annum. A copy of the sxmamons and complaint in this action is hereto annexed. The original was filed on August 18, 1916. ' See next succeeding form. MORTGAGES ON REAL PROPERTY 821 Affidavit to Procure Order to Show Cause why Receiver Should not be Appointed IV. That said mortgage contained the following clauses: "That if default shall be made in the payment of the prin- cipal stun mentioned in the condition of said bond, or of the interest which shall accrue thereon, or of any part of either at the respective times therein specified for the payment thereof, the said party of the second part shall have the right forthwith after any such default to enter upon and take possession of the said mortgaged premises and to let the said premises and receive the rents, issues and profits thereof, and to apply the same after payment of all necessary charges and expenses on account of the amount hereby secured, and said rents and profits are in the event of any such default, hereby assigned to the party of the second part. " That the said party of the second part shall also be at liberty immediately after any such default upon proceedings being commenced for the foreclosure of this mortgage, to apply for and the said party of the second part, without considera- tion of the value of the mortgaged premises as security for the debt or of the solvency of any person or persons liable for the payment of such debt, shall be entitled as a matter of right, to the appointment of a receiver of the rents and profits of said premises, with power to lease said premises or such part thereof as may not then be under lease and with such other powers 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 said rents and profits to the payment and satisfaction of the amount re- maining secured hereby, or to any deficiencies which may exist after applying the proceeds of the sale of said premises to the payment of the amount due, including interest and the cost of the foreclosure and sale. " The proceeds of this mortgage being intended to be used for the purposes of making alterations in or rebuilding build- ings on said lands and premises and to preserve or hnprove the same and to pay off existing mortgages upon said premises in accordance with the terms of the will of Martin Schrenkeisen, aforesaid-" 822 Bradbury's lawyers' manual Affidavit to Procure Order to Show Cause why Receiver Should not be Appointed V. That the assessed valuation of said property on the tax books of the City of New York, Borough of Manhattan, County of New York, for this year is $117,000. That annexed hereto is the affidavit of Henry Brady, real estate agent, ap- praiser and broker, familiar with the values of real estate in the section in which said premises are situated, from which it appears that said Henry Brady after an examination of said premises, appraised the same to be of the fair market value of $101,500. And that the annual rental value of said premises is $13,200. That the taxes and water rents for the years 1914, 1915 and 1916 are unpaid and are liens upon the said premises, the gross amount of which is $10,130.58, and the interest thereon may amount to $1,000 in addition thereto; the interest now due the plaintiff amounts to $3,750; the plaintiff has also incurred insiirance premixrais to protect its Hen amounting to $1,465.18, to which items are to be added the costs and disbursements of this action and the additional interest accruing to the termination of same, so that the entire indebtedneiss against said property will total in excess of $92,000. That from the foregoing facts, and bearing in mind the present condition of the real estate market, deponent be- Heves that upon a sale at public auction said premises will not probably realize a sufficient siun to satisfy the mortgage debt due to plaintiff with interests, costs and arrears of taxes. VI. That the title to said premises is in the defendant. That said premises are improved with six-story brick lofts and stores. That said defendant has been served with the sum- mons and complaint in this action but has not appeared herein. That his time to answer has not expired. That it appears from a judgment search in the County of New York that the de- fendant has a judgment docketed against him in the sum of $31,768.75; also that said defendant individually has judg- ments docketed against him amounting to $33,309.51, which said judgments are unsatisfied of record. VII. Under all the circumstances, the security is not suffi- cient to protect the plaintiff's mortgage with interest, taxes, water rates and foreclosure expenses, unless the said property MORTGAGES ON REAL PROPERTY 823 Affidavit of Real Estate Expert on Motion for Appointment of Receiver is judicially managed pending this suit. Deponent further believes that it is probable that no recovery could be had on a deficiency judgment obtained in this action after a sale of said premises. It is therefore necessary that a receiver be ap- pointed to collect the rents of the said premises so that the same may be applied to current charges and necessary repairs to preserve the same. The action is not yet at issue and the next term at which the action is triable is the Special Term of this court appointed to be held on the day of , 19 . No previous application for an order to show cause has been made. Wherefore deponent prays for the annexed order to show cause why such receiver should not be appointed, the reason for asking an order to show cause being that the rents will be due on the first of September and the plaintiff deems it for its interest in this action that the receiver be placed in possession at the earliest possible date so that he may collect the rents due September first. Sworn to before me, this 1 John J. Pulleyn. 29th day of August, 1916. J {Signature and title of officer.) FORM NO. 468 Affidavit of Real Estate Expert on Motion for Appointment of Receiver to Accompany Preceding Affidavit {Title Same as Second Preceding Form) State or New York City and County of New York ^ss: Henry Brady, being duly sworn, says: That he resides at No. 371 West 23d Street and is in the real estate business at No. 200 West 23d Street, in the Borough of Manhattan, in the City of New York, and has been engaged in said business at said place since 1905. That he is famiUar with real estate 824 Bradbury's lawyers' manual Order Appointing Receiver of Rents in the Borough of Manhattan and the value thereof, and has been engaged in buying and selling same and acting as agent, broker and appraiser, since 1905. That he has examined the property Nos. 158 and 160-166 Monroe Street, the mortgaged premises in this action, and said premises are unproved with a six-story brick building, at present used for lofts and stores. That the annual rental value of said premises is $13,200. That it is deponent's opinion that the fair market value of said premises is 1101,500, but that at a forced sale thereof it would not bring more than 190,000. Sworn to before me, this 29th day of August, 1916. {Signature and title of officer.) Henry Brady. FORM NO. 469 Order Appointing Receiver of Rents At a Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the first day of September, 1916. Present: Hon. Edward R. Finch, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Martin Schrenkeisen, Junior, as Executor of and Trustee under the Last Will and Testament of Mar- tin Schrenkeisen, deceased. Defendant. Upon the order to show cause why an order should not be made appointing a Receiver of the rents, issues and profits of the real estate described in the complaint in this action dated MORTGAGES ON REAL PROPERTY 825 Order Appointing Receiver of Rents the 29th day of August, 1916, with proof of due service thereof on the defendant Martin Sehrenkeisen, Junior, as Executor of and Trustee under the Last Will and Testament of Martin Sehrenkeisen, deceased, said order being returnable on the 31st day of August, 1916, upon the summons and complaint in this action, and upon reading and filing the affidavits of John J. PuUeyn and Henry Brady, verified the 29th day of August, 1916, and on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is Ordered that Samuel A. Berger, 41 Park Row of the Bor- ough of Manhattan, in the City of New York, be and he hereby is appointed with the usual powers and directions, receiver for the benefit of the plaintiff of all the rents and profits now due and unpaid or to become due pending this action and issuing out of the mortgaged premises mentioned and described in the complaint and known and described as follows : (add description as in complaint). That the receiver be and he hereby is authorized and directed to demand, collect and receive from any and all persons in possession of the said premises or any part or parts thereof or any other person or persons liable therefor, all rents now due or unpaid or which hereafter may become due upon the said premises. That the tenants in possession of said premises and such other person or persons as may be or may hereafter become in possession thereof, be and they hereby are directed to attorn as such tenant or tenants to the said receiver and until further order of the court to pay over to such receiver all rents of such premises now due and unpaid or that may hereafter become due. That all tenants of the said premises and all other persons liable for such rents are hereby enjoined and restrained from paying any rent or rents for said premises or any part thereof to the defendant in this action or to his agents, servants or attorneys, or to any person other than the said receiver. That all persons now or hereafter in possession of said prem- ises or any part thereof and not holding such possession under 826 Bradbury's lawyers' manual Order Appointing Receiver of Rents valid and existing leases shall forthwith surrender such posses- sion to the said receiver at the option of the said receiver; and such receiver is hereby authorized from time to time to rent or lease as may be necessary or expedient for terms not exceed- ing one year any part or parts of the said premises and said receiver is further authorized to carry on all legal proceedings necessary for the protection of the said premises including such proceedings as may be necessary to recover the possession of the whole or any part of the said premises and to institute and prosecute summary proceedings for the removal of any tenant or tenants therefrom. That the said receiver be and he hereby is authorized and empowered to pay any and all taxes and assessments and water rents which are or may become liens upon the said premises during his receivership and to keep the said property insured against loss or damage by fire and in good repair and to pay any and all insurance premiums thereon. That the said receiver is authorized hereby to employ an agent if he shall deem proper to rent and manage the said property and to collect the rents and keep the said premises insured and in repair, and to pay to said agent the reasonable value of his services out of the rents received. That during the pendency of this action and until the further order of the court, the defendant Martin Schrenkeisen, Junior, as executor of and trustee under the Last Will and Testament of Martin Schrenkeisen, deceased, be and he hereby is enjoined and restrained from collecting the rents of said premises and from interfering in any manner with the said property or its possession. That the said receiver retain the moneys which may come into his hands by virtue of the said appointment, until the sale of the premises mentioned in the complaint and judgment be entered in this action, and that he then, after deducting his proper fees and disbursements therefrom, apply said moneys to the payment of any deficiency there may be in the said amount directed to be paid to the plaintiff in and by the said judgment, and, in case there be no deficiency, to retain such MORTGAGES ON REAL PROPERTY 827 Account of Receiver of Rents moneys in his hands until the further order of the court in the premises. That before entering upon the duties of his trust the said receiver execute to the People of the State of New York and file with the Clerk of this court, a bond in the sum of $4,000 with suflScient surety, to be approved by a Justice of this court, for the faithful discharge of his duties as receiver. That the said receiver and any party hereto may, at any time on proper notice to all parties who have appeared in this action, apply to this court for further and other instructions and for further power necessary to enable said receiver to prop- erly fulfil his duties. Enter, E. R. F., J. S. C. FORM NO. 470 Account of Receiver of Rents {Title of Action) To the Supreme Court of the State of New York: I, the undersigned, John W. Keller, of the Borough of Man- hattan, City of New York, do hereby render the following account of all proceedings had by me as receiver of the rents, issues and profits of the premises described in the Complaint herein and known by the street number 154 East 112th Street, Borough of Manhattan, City of New York. The improvements on these premises consist of a five-story brick building with stores on the street floor and tenements above. I was duly appointed receiver for the benefit of plaintiff of the rents, issues and profits of the aforesaid premises by an order duly made June 25th, 1915, by Mr. Justice John W. Goff of the Supreme Court and duly entered in the above- entitled action in the office of the Clerk of the County of New York, being the County in which the premises are situated. On the 29th day of June, 1915, I duly qualified as such re- 828 Bradbury's lawyers' manual Account of Receiver of Rents ceiver in accordance with the aforesaid order by fiUng with the Clerk of the County of New York a bond in the sum of $500 given by the New England Casualty Company, and duly approved by a justice of this court. Immediately upon qualifying as such receiver, pursuant to the aforesaid order, I entered the said premises, took pos- session thereof as receiver, gave notice of my appointment to the occupants and attempted to collect the rents due from them. At that time the premises were greatly out of repair and needed re-decorating. In order to keep the tenants who were in the premises at the time of my appointment there, it was necessary to make repairs to the plumbing and to re- decorate. After consulting with my attorney, Theodore M. Riehle, and also obtaining the approval of the plaintiff by its attorneys, I had repairs made, which were immediately neces- sary to the preservation of the premises and to make them tenantable, and my expenses are set forth in Schedule B hereto annexed. The terms of the leases to the other tenants pro- vided that the landlord should furnish hot water to the tenants, and I continued to provide it during my occupancy as receiver of the premises. Pursuant to instructions contained in the order appointing me, I engaged the services of Edgar D. Milbank of 51 East 42d Street, Manhattan Borough, New York City, as my agent for the purpose of making the collection of rent and for the inspection and care of the premises. I have paid my said agent the customary commission of five per cent of the rental so collected, as appears by Schedule B of the account. I have retained Theodore M. Riehle, Esq., as my attorney in all matters concerning these premises, and have consulted him concerning the proper course to be pursued by me at the various stages of these proceedings. I am advised that the mortgaged premises were sold by Henry W. Unger, Referee, pursuant to Final Judgment in the action, to the plaintiff in November, 1915, and a deed to the plaintiff delivered by the Referee, and I have delivered possession of said premises to the said purchaser. MORTGAGES ON REAL PROPERTY 829 Account of Receiver of Rents The several schedules hereto annexed and subscribed by me are made part of this account and contain as follows : Schedule A contains a statement of all sums received by me as such receiver. Schedule B contains a detailed statement of all moneys expended and disbursed by me in the execution of my duties as receiver herein. There are also annexed hereto and made a part hereof the original receipts and vouchers for all expenditures and pay- ments by me made herein. The following is a summary statement of the account: I charge myself with gross receipts as set forth in Schedule A,. .1416.50 I credit myself with total expenditures as set forth in Schedule B, . . . 337.29 Leaving a balance in my hands of . . $ 79.21 to be paid over to the plaintiff under the order aforesaid ap- pointing me receiver, subject, however, to the deduction of the amounts of my commissions, my attorney's fees and the expenses of this accounting. The commission of five per cent upon the sums received and disbursed by me as receiver herein, which is payable to myself, out of the aforesaid moneys, is the sirni of $37.68. My attorney, Theodore M. Riehle, is fully and fairly entitled to the sum of $35 compensation for the services rendered by him in advising me during the course of this receivership, particularly with reference to the repairs made aforesaid, and in preparing and securing the settlement of this my account. Dated, New York, Feb. 2, 1916. John W. Keller, Receiver. 830 BRADBURY S LAWYERS MANUAL Account of Receiver of Rents SCHEDULE A RECEIPTS OF RENTS 1915 Tenant Monthly Rent July: Vail .119.00 Tuite 16.00 Menter 18 . 50 Greulich 17.00 Deposit from party who did not move in August: Vail $19.00 Lynch (dep. on Sept. rent) Tuite 16.00 Menter 18.50 Greulich 17.00 Smario (dep. on Sept. rent) Amount Paid 119.00 16.00 18.50 17.00 3.00 Bal. due September: Vail $18.00 Lynch 17.00 Tuite $16.00 Menter 17.50 Greuhoh 17,00 Smario 16.00 October: Vail $18.00 Lynch 17.00 Tuite 16.00 Menter 17.50 Greulich 17.00 Smario 16.00 November: Vail $18.00 Lynch 17.00 Tuite 16.00 Menter 17.50 Greulich 17.00 Smario 16.00 $19.00 5.00 16.00 18.50 ,17.00 5.00 $18.00 12.00 10.00 17.50 17.00 11.00 $18.00 17.00 16.00 17 50 17.00 $18.00 17.00 16.00 17.50 17.00 $73.50 $80.50 ' bal., $5. 1 pd. in August bal., $5. pd. in August J $91.50 $16.00 $85.50 $32.00 $85.50 Total Schedule A. John W. $416.50 Keller, Receiver. MORTGAGES ON REAL PROPERTY 831 Account of Receiver of Rents SCHEDULE B DISBURSEMENTS WIB July: Standard Gas Light Co., gas for halls $ 1 .28 E. D. Milbank, agent's commissions on July rents 3.68 August: Burns Bros., coal 6.30 Herman Lissauer, plumbing 5 . 53 Painter's wages, 13 days at $3, 7 days at $2.50, and supplies $1.84 58.34 E. D. Milbank, agent's commissions on Aug. rents 4.03 September: J. Swan, painter 3 . 37 B. Borney, carpenter 2 , 50 Standard Gas Light Co., gas for halls to Aug. 12 2.32 Standard Gas Light Co., gas for halls to Sept. 13 2.80 S. H. Glasser, window glass, shades, etc 13.50 Central Supply Co., janitor's supplies 1.68 Herman Lissauer, plumbing 29 . 99 Richard E. Thibaut, Inc., wall papers 6.20 Ilsley & Held Co., paints, etc 19.11 Green Bros. Co., stepladder 1 . 50 Marston Lumber Co., lurnber 2 . 36 Corbett & Co., resetting clothes pole 6.00 Mrs. Drapeau, janitor's wages, $10, suppUes, $1.20 11.20 E. D. MUbank, agent's commissions on September rent. . . 4.58 October: Lock for Lynch's apartment 1 .50 Bums Bros., coal 6 . 50 Joseph Gold, papering and painting first floor east apart- ment 17 .00 Standard Gas Light Co., gas to Oct. 11th 2.66 Wm. Richman, plumbing 7 . 00 E. D. Milbank, agent's commissions on Oct. rents 4.28 November: L. Adler, repairing dumbwaiter 8.00 Central Supply Co., broom .35 Burns Bros., coal 6.75 Gas Consumers Assn., service 2 .00 Herman Hafers, repairing chimney 9 .00 Standard Gas Light Co., gas to Nov. 10th 2 .88 Enell Chandelier Co., fixtures 3.00 Herman Lissauer, plumbing 70 . 92 E. D. Milbank, agent's commissions on Nov. rents 4.28 John M. Riehle & Co., premium on receiver's bond 5.00 Total Disbursements $337 .29 John W. Kellek, Receiver. 832 Bradbury's lawyers' manual Affidavit of Attorney for Receiver for Allowance State op New York City of New York County of New York ^ss: John W. Keller, the Receiver of the rents, issues and profits in this action, being duly sworn, says : I. That the foregoing account contains according to the best of deponent's knowledge, information and belief, a full and true account of all the rents and profits which have been received by this deponent or by any other person by his order or for his use up to and including the 25th day of January, 1916. That he has been charged in said account with all the moneys received by him and embraced in the said account for which he is legally accountable; and that the moneys stated therein to have been collected were all that were collectible, according to the best of his knowledge, information and belief. II. That the several sums of money stated in the foregoing account to have been paid and allowed were actually paid and allowed by this deponent for and on account of the premises therein and for the several purposes therein mentioned, accord- ing to the best of his knowledge, information and belief. III. That he does not know of any error or omission in the said foregoing account to the prejudice of any of the parties interested in the funds or in the cause. Sworn to before me, this 3d "1 John W. Keller. day of February, 1916. j (Signature and title of officer.) FORM NO. 471 Affidavit of Attorney for Receiver for Allowance {Title of Action) City, County and State of New York, ss: Theodore M. Riehle, being duly sworn, deposes and says, that he is an attorney and counsellor at law, and was retained MORTGAGES ON REAL PROPERTY 833 Affidavit of Attorney for Receiver for Allowance and has acted as attorney for John W. Keller, the Receiver herein. That your deponent has constantly advised him during the term of this Receivership as to all legal matters involved therein, including the obtaining of his bond and the legality of the repairs to be made to the premises during the Receiver- ship. That your deponent has prepared this Account for the Re- ceiver herein and is conducting the proceedings necessary for the confirmation thereof, and the discharge of the Receiver and his surety. That the Order appointing the Receiver herein contained the following provision, to wit : "That the said Receiver retain the moneys which may come into his hands by virtue of the said appointment, until the sale of the premises mentioned in the complaint and judgment be entered in this action, and that he then, after deducting his proper fees and disbursements therefrom, apply said moneys to the payment of any deficiency there may be in the said amount directed to be paid to the plaintiff in and by the said judgment, and, in casfe there be no such deficiency, to retain such moneys in his hands until the fm-ther order of the Court in the premises." That the Report of Sale of the Referee appointed to sell, Henry W. Unger, filed in the office of the Clerk of the County of New York November 24th, 1915, showed a deficiency of $1,403.72, and on the 24th day of December, 1915, a deficiency judgment was docketed on said Report in the office of the Clerk of the County of New York in favor of the plaintiff. The Em- igrant Industrial Savings Bank, against the defendants, Agnes M. Brooker and Susan Fall as Executrices of the Last Will and Testament of Mary Fall, deceased, for the said sum of $1,403.72. That the said judgment remains open and unsatisfied of record, and has not been assigned of record. That it appears by the papers and proceedings on file in this action that the equity in the mortgaged premises was vested in the devisees of Mary Fall, deceased, one of whom was the infant defendant, Madeline Corcoran, hereinafter mentioned. 834 Bradbury's lawyers' manual Notice of Motion for Order Settling Receiver's Account That as more fully appears by the judgment roll on file in this action, the said devisees of Mary Fall, deceased, were served with the summons and complaint herein, and all of them defaulted, except the infant defendant, Madeline Cor- coran, who appeared by her guardian ad litem, and that the only defendants who appeared in this action are the follow- ing:— Madeline Corcoran by Frederick H. Wooley, her guardian ad litem; The People of the State of New York by E. E. Woodbury, Attorney General; and the Plaintiff appeared by R. & E. J. O'Gorman, its attorneys. Your deponent respectfully submits that his services herein, as hereinbefore set forth, are reasonably worth the sum of dollars, which will be a fair and reasonable com- pensation for the same, including the stenographic expenses in preparing the account and these papers and manifolding the same, and serving the same on the several parties. Sworn to before me, this 30th day of August, 1916. {Signature and title of officer.) Theodore M. Riehle. FORM NO. 472 Notice of Motion for Order Settling Receiver's Account {Title of Action) Please take notice that upon the Account and Affidavit of the Receiver, John W. Keller, verified the third day of February, 1916, the Affidavit of Theodore M. Riehle, verified the 30th day of August, 1916, all hereto annexed, and upon the Summons and Complaint herein, the Order Appointing the Receiver, the Order Appointing the Referee, the Judgment of Foreclosure and Sale together with the Referee's Report of Sale and the Order for a Deficiency Judgment thereon, all here- tofore filed herein in the Office of the Clerk of the County of New York, and upon the Deficiency Judgment docketed herein in the Office of the Clerk of the County of New York on Decern- MORTGAGES ON REAL PROPERTY 835 Order Confirming Receiver's Account ber 24, 1915, in favor of the plaintiff, and upon all the papers and proceedings heretofore had herein a Motion will be made at Special Term, Part I of this Court on the 22d day of Septem- ber, 1916, at 10:30 o'clock A. M. in the County Courthouse, Borough of Manhattan, City, County and State of New York, for an Order Stating the Receiver's Account, fixing the commis- sion of the Receiver herein, and the fee of his attorney. Dis- charging the Receiver and Cancelling his bond and an Applica- tion will be made for the signature of the annexed Proposed Order covering the aforesaid, and for such other and further relief as may be just in the premises. Dated, September 12, 1916. Yours, &c., (Signature and post office address of attorney for receiver.) To: (All attorneys who have appeared in action.) FORM NO. 473 Order Confirming Receiver's Account and Making Allowance to Receiver's Counsel At a Special Term, Part I, of the Supreme Court, held in and for the County of New York, at the County Courthouse, in the Borough of Manhattan, City of New York, on the 23d day of September, 1916. Present: Hon. John W. Goff, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Agnes M. Brooker, individually and as Executrix of the Last Will and Testament of Mary Fall, de- ceased, et al. Defendants. A motion having duly come on to be heard before me at a Special Term, Part I, of this Court on the 22nd day of Sep- 836 BRADBtfRy's lawyers' manual Order Confirming Receiver's Account tember, 1916, for an Order approving the account of the Re- ceiver herein and discharging the said Receiver, and fixing the commissions for the said Receiver and the allowances of his attorney, and Theodore M. Riehle, Esq., attorney for the said Receiver, appearing in support of the motion, and no one appearing in opposition thereto ; Now, upon reading and fiUng the annexed account and affidavit of John W. Keller, the Receiver herein, verified the 3d day of February, 1916, the aflfidavit of Theodore M. Riehle, attorney for the Receiver, verified the 30th day of August, 1916, and upon reading the Summons and Complaint herein, the Order appointing the Receiver, the Order appointing the Referee, the Judgment of Foreclosiu-e and Sale, and the Referee's Report of Sale showing a deficiency in favor of the plaintiff herein in excess of the amount now in the hands of the Receiver, and the order for deficiency judgment thereon, all duly filed in the office of the Clerk of the County of New York, and upon the deficiency judgment herein docketed in the office of the Clerk of the County of New York on the 24th day of December, 1915, and upon all the proceedings hereto- fore had herein, and upon notice of motion herein and proof of service thereof, and due dehberation having been had, it is Ordered, that the annexed account of John W. Keller, the Receiver herein, duly filed herewith, be and the same hereby is settled, approved and confirmed; and it is further Ordered, that the said Receiver, out of the moneys remain- ing in his hands to the amount of $79.21, pay to himself as and for his commissions as Receiver in this action, pursuant to Section 3320 of the Code of Civil Procedure, the sum of thirty- seven and sixty-eight one hundredths dollars, which is hereby allowed him as and for such commissions and compensation, and further, that he pay to his attorney, Theodore M. Riehle, the sum of thirty-five dollars, which is hereby allowed to said Theodore M. Riehle as and for his compensation as attorney for the Receiver herein ; and it is further Ordered, that after the payment of the aforesaid siuns. MORTGAGES ON REAL PROPERTY 837 Affidavit on Motion to Designate Person to Receive Summons the Receiver pay the balance then remaining in his hands, amounting to the sum of six and fifty-three one hundredths dollars, to the plaintiff, The Emigrant Industrial Savings Bank; and it is further Ordered, that upon compliance with the terms of this order and upon fiiUng the vouchers or receipts for the sums herein directed to be paid, the Receiver herein, John W. Keller, be and he thereby is discharged, and that the bond filed by him herein be and the same hereby is cancelled, and the surety reUeved from any and all further liability thereon. Enter, J. W. G., J. s. c. FORM NO. 474 Affidavit on Motion to Designate Person to Receive Summons on Behalf of Infant Defendants {Title of Action) ^ss: State of New York County of New York H. B. H., being duly sworn, deposes and says: I. That he is an attorney at law in the office of R. & E. J. O'G., the attorneys for the plaintiff in the above-entitled action, and has charge of said action. That said plaintiff is a domestic banking corporation. II. That this action is brought to foreclose a mortgage upon real property situate in the County of New York made and executed by one A. McD. and others, to the plaintiff, and the second amended complaint demands judgment that the de- fendants be excluded from a vested or contingent interest in or lien upon the specific real property within the State described in the second amended complaint, and that the Uen in favor of the plaintiff be enforced. III. That the following named defendants are proper and necessary parties defendant to this action for the reason that 838 BRADBURY'S LAWYERS' MANUAL AfRdavit on Motion to Designate Person to Receive Summons they are heirs or persons deriving an interest through heirs of one P. J. McD., deceased, who was the sole owner of said mortgaged premises at the time of his death. That all of said defendants are infants, some under and some over fourteen years of age and the particulars as to their names and resi- dences and whether under or over fourteen years of age, are as follows, to wit: Name Age Residence 1. James Rogers Over 14 Drumlish, County Longford, Ireland, with John Rogers. 2. Maggie Rogers Over 14 Drumlish, County Longford, Ireland, with Michael McGovem. (Names of thirty other infant defendants.) IV. That both of the parents of the aforesaid six infants named Rogers are dead and they reside with the persons above named. That the father of the aforesaid four infants named Gray is dead and they all reside with their mother, as stated above. That all of the aforesaid infants named McDonnell and Morgan reside with their respective fathers, as above stated. That none of said infants has a general or testamentary guardian within the State of New York. V. It is desired that this Court shall, in said infant defend- ants' interest, pursuant to section 426 of the Code of Civil Procedure, make an order herein, requiring a copy of the second supplemental summons and second amended complaint herein to be also dehvered in behalf of the said infant defend- ants named in paragraph III of this affidavit to a person designated in the order, and that service of the second sup- plemental summons and second amended complaint shall not be deemed complete until it is so deUvered. VI. No previous or other application for the reUef or order herein asked for has been made to any Court or Judge. Sworn to before me, this ] H. B. H. 18th day of December, 1915. (Signature and title of officer.) MORTGfAGES ON REAL PROPERTY 839 Order Designating Person to Receive Summons FORM NO. 474a Order Designating Person to Receive Summons on Behalf of Infant Defendants At a Special Term, Part II of the New York Supreme Court held in and for the County of New York, at the County Court- house therein, on the 20th day of December, 1915. Present: Hon. M. Warley Platzek, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Ellen Reynolds, individually and as Executrix of the Last Will and Tes- tament of John Reynolds, de- ceased {and names of all other de- fendants), Defendants. On reading and fihng the annexed affidavit of Henry B. Hammond, verified the 18th day of December, 1915, by which it appears that this action is brought for the foreclosure of a mortgage upon real property situate in the County of New York; that the defendants, James Rogers {names of other infant defendants) are infants, some of whom are under the age of fourteen years, and the others are over the age of four- teen years; and that all of said infant defendants are proper and necessary parties defendant to this action for the reason that they are heirs or persons deriving an interest through heirs of one Peter J. McDonnell, deceased, who was the sole owner of said mortgaged premises at the time of his death; Now, on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is hereby Ordered, pursuant to §426 of the Code of Civil Pro- 840 Bradbury's lawyers' manual Affidavit on Motion for Order for Publication of Summons cedure that a copy of the second supplemental summons and second amended complaint herein be also delivered in behalf of said infant defendants, James Rogers {names of other in- fants) to Henry A. Thellusson, Esq., attorney at law, 51 Cham- bers St., and that service of the second supplemental summons and second amended complaint herein on said infant defend- ants shall not be deemed complete until a copy of the second supplemental summons and second amended complaint herein is so served upon and delivered to said Henry A. Thellus- son, Esq. Enter, M. W. P. J. s. c. FORM NO. 475 Affidavit on Motion for Order for Publication of Summons as. Against Absent and Unknown Defendants {Title of Action) State of New York 1 County of New York J Hemy B. Hammond, being duly sworn, deposes and says: I. That he is an attorney and counsellor at law in the office of R. & E. J. O'Gorman, the attorneys for the plaintiff in the above-entitled action, and has immediate charge of all the pro- ceedings in said action. II. That the summons and complaint in this action were duly filed in the office of the Clerk of the County of New York on November 27th, 1911, and a notice of the pendency of this action was on the same day filed in said Clerk's Office. III. That upon the default of all of the defendants who were then parties to this action an order of reference was duly made herein bearing date the 4th day of January, 1912, and a judg- ment of foreclosure and sale was entered herein on the 6th day of January, 1912, bearing date the 5th day of January, 1912. IV. That on the 28th day of April, 1915, an order was made MORTGAGES ON REAL PROPERTY 841 Affidavit on Motion tor Order for Publication of Summons and entered herein vacating and setting aside said order of reference and judgment, bringing in additional parties defend- ant and giving plaintiff leave to file and serve an amended complaint, and plaintiff did file said amended complaint in the office of the Clerk of the County of New York on the 30th day of April, 1915. V. That on the 4th day of October, 1915, an order was entered herein bearing date the 7th day of September, 1915, striking out the names of certain parties, correcting the names of other parties, bringing in additional parties defendant and giving plaintiff leave to file and serve a second supplemental summons and second amended complaint and to file an amended notice of the pendency of this action. That said sec- ond supplemental summons and second amended complaint duly verified and said amended notice of the pendency of this action were filed in the office of the Clerk of the County of New York on the 5th day of October, 1915; and that a copy of said second supplemental siunmons and said second amended com- plaint duly verified, are hereto annexed and made a part of this affidavit. VI. That this action is brought to foreclose a mortgage upon real property situate in the County of New York made and executed by one Alexander McDonnell and others to the plaintiff, and the second amended complaint demands judgment that the defendants be excluded from a vested or contingent interest in or hen upon the specific real property within the State described in the second amended complaint, and that the lien in favor of the plaintiff be enforced. VII. That on the 25th day of January, 1907, one Peter J. McDonnell then being the sole owner of said mortgaged prem- ises, died intestate in and a resident of the City, County and State of New York. VIII. The said Peter J. McDonnell never married. He left him surviving no brothers, no sisters, and no parents, but he did leave him surviving brothers and sisters of both parents and their descendants. That the interests of all his heirs on the maternal side have become vested in Ellen Reynolds, who 842 BRADBURY'S LAWYERS' MANUAL Affidavit on Motion for Order for Publication of Summons is a defendant herein. That his heirs on the paternal side so far as the same can be ascertained by deponent are defendants herein. IX. That the following named defendants are proper and necessary parties defendant to this action for the reason that they are heirs of the said Peter J. McDonnell, deceased, or persons having an interest of dower or curtesy in the shares of such heirs in the property covered by the mortgage sought to be foreclosed in this action. That the place of residence of each of said defendants as ascertained by deponent is set opposite his name. Name Residence Mary Ann Rogers McCabe Moyar Kingscourt, County Cavan, Ireland. Ellen Rogers Burbage Johnstons Bridge, Dromod, County Leitrim, Ireland. James Rogers Drumlish, County Longford, Ireland, with John Rogers. Maggie Rogers Drumlish, County Longford, Ireland, with Michael McGovern. Jane McDonnell, wife of Patrick A. Mc- Melkajh, DrumMsh, County Longford, Doimell, the name "Jane" being ficti- Ireland, tious, her true first name being un- known to plaintiff. John McDonnell Tulsa, Tulsa County, Oklahoma. {In the above list were given the names and addresses in a similar manner of forty-six other defendants.) X. That all the above-named parties are of full age and of sound mind except the following who are infants, to wit: James Rogers, Maggie Rogers and Alexander Rogers, in- fants over the age of fourteen years, and John Rogers, Ehza- beth Rogers and Brigid Rogers, infants under the age of four- teen years. That both of the parents of said infants are dead. That James Rogers is eighteen years of age and resides with John Rogers, an adult relative, at Drumlish, County Long- ford, Ireland; Maggie Rogers is about sixteen years of age and resides with Michael McGovern at DrumUsh, County Long- ford, Ireland; Alexander Rogers is about fifteen years of age MORTGAGES ON REAL PROPERTY 843 Affidavit on Motion for Order for Publication of Summons and resides with Thomas Rogers, an adult relative, at Bar- raughmore, Drumlish, County Longford, Ireland; John Rogers is about thirteen years of age and resides with John Rogers, an adult relative, at Drumlish, County Longford, Ireland; Elizabeth Rogers is eleven years of age and resides with Ed- ward Burbage, an adult relative, at Johnstons Bridge, Dromod, County Leitrim, Ireland; Brigid Rogers is about nine years of age and resides with Lizzie Burbage, an adult relative, at Greaugh, Drumlish, County Longford, Ireland. That by the will of James Rogers, deceased, father of the above-named six infants, he appointed the above-named Edward Burbage and Thomas Rogers and one John Burbage, residing at Drumlish, County Longford, Ireland, guardians of said infants. Michael Malloy, Mary Anne Malloy, James Malloy and Patrick Malloy, infants over fourteen years of age, and Mat- thew Malloy, Maggie Malloy, Lizzie Malloy and Ellen Malloy, infants under fourteen years of age. That their respective ages are: Michael 19, Mary Anne 17; James 15; Patrick 14; Matthew 10, Maggie 12, Lizzie 8 and Ellen 5 years. That the mother of said infants is dead and they all reside with their father, Matthew Malloy, at Baragh, Drumlish, County Long- ford, Ireland. Ellen Rose Gray, Lizzie Gray and Mary Kate Gray, infants over fourteen years of age, and James Gray, infant under fourteen years of age. The said Ellen Rose Gray is eighteen years of age; Lizzie Gray sixteen years of age, Mary Kate Gray fifteen years of age, and James Gray thirteen years of age. That the father of said infants is dead and they all re- side with their mother, Ellen Gray, at Annaghmore, Mohill, County Leitrim, Ireland. That none of the above-named infants have any guardian within the State of New York. XL That the plaintiff has been and will be unable with due diligence to make personal service of the second supplemental summons in this action on the above-named defendants and on the aforesaid parents, guardians and persons with whom the above-named infant defendants reside for the reason that all of 844 Bradbury's lawyers' manual Affidavit on Motion for Order for Publication of Summons said parties are nonresidents of the State of New York, and they are all at present without the State of New York, and re- side at the respective places above mentioned. XII. That the source of deponent's information is as fol- lows: (a) That an action was commenced in the County of New York on or about the 14th day of January, 1914, for a parti- tion or sale of the premises covered by the mortgage sought to be foreclosed in this action. That this plaintiff and all of the defendants named in this action were necessary parties to said action. That deponent examined the record of proceedings in said action in the office of the Clerk of the County of New York, said action being entitled "John A. McDonnell and Margaret McDonnell Mullaney, plaintiffs, against Ellen Reynolds, individually and as executrix of the Last Will and Testament of John Reynolds, deceased, and others, defendants," and ascer- tained from said record that an order was obtained in said action on January 24th, 1914, for the service of the summons on all except seven of the parties named in paragraph IX of this affidavit, by pubhcation thereof by reason of the fact of their being nonresidents of the State of New York. That the order for publication in said action was made upon the affidavit of Margaret McDonnell Mullaney, one of the plaintiffs therein, who is an aunt of the said Peter J. McDonnell, deceased, and a defendant in this action. That a copy of said affidavit verified January 22d, 1914, is hereto annexed and made a part of this affidavit. (b) That deponent personally served the supplemental summons and amended complaint in this action on twenty- six of the defendants herein, all of whom are heirs of the said Peter J. McDonnell, deceased, and related to the nonresident defendants above named. That deponent questioned each one of the defendants served by him as to the names and places of residence of said nonresident defendants. That the defendant Margaret Burbage Conlon stated to de- ponent that she is a daughter of Rosetta McDonnell Burbage, a deceased aunt of the said Peter J. McDonnell, deceased, and MORTGAGES ON REAL PROPERTY 845 Affidavit on Motion for Order for Publication of Summons that the defendants Mary Ann Burbage Griffin, Rosetta Bur- bage McGovern, Lizzie Burbage, Katie Burbage, Brigid Lacey, James Burbage and John J. Burbage are her brothers and sisters. She corresponds with her people in Ireland. Her mother, Rosetta Burbage, died three years ago last January 15th (1912). Her sister Brigid is now Brigid Lacey as she married about six months ago and lives at Cloughan, King's County, Ireland. Her brother, John J. Burbage, is married and his wife's name is Mary. Her brother James is unmarried. All of her brothers and sisters are of age. She further stated as to the family of James McDonnell, deceased, that he was her uncle and uncle of said Peter J. McDonnell, deceased. That said James Mc- Donnell died about sixteen years ago in Ireland. That he left a widow Bridget McDonnell, who is now living at Melkajh, DrumHsh, County Longford, Ireland. That he also left nine children. That two of said children, viz., James and Patrick A., also live at Melkajh. That James is single and Patrick A. recently married but she does not know his wife's name. That John A., Alexander and Daniel McDonnell, three of said chil- dren, live in this country, and that John A. is single but the other two are married. That Rosetta McDonnell and the three married daughters, Mrs. Dunn, Mrs. Whitney and Mrs. Rogers all live in Ireland and she believes I have their right addresses. Mrs. Conlon stated that Frank Gray, who was her cousin, died more than twenty years ago and that Christie Gray, his son, died about thirteen years ago, single. That said Frank Gray also had two daughters, viz., NeUie Gray, who lives in England with a priest, and Maggie Gray Abraham, who married about ten years ago. As to Mary Ann Rogers, aunt of Peter J. McDonnell, deceased, Mrs. Conlon stated that she died about fifteen years ago and her son James Rogers died about six years ago and that Thomas Rogers is dead if any such person. I showed her my list of the heirs of Mrs. Rogers and she said it was correct except as to Thomas Rogers. Mrs. Conlon said that Margaret Rogers McNally resided at Fallon, Nevada, and was not likely to come to New York in the near future. 846 BRADBURY'S LAWYERS' MANUAL Affidavit on Motion for Order for Publication of Summons The defendant John Gray stated that he has been here two years and gets letters from his own family in Ireland. De- ponent interviewed him first at the Hotel Devon, No. 70 West 55th Street, New York City, where he is employed, and later at No. 529 West 152d Street, New York City, where he lives with the above-named Mrs. Margaret Burbage Conlon, his cousin, who was there and joined in the conversation. Said John Gray stated that his father John Gray died April 17th, 1901. That he left a widow, Ellen Gray, and six children, viz., Daniel, John, Ellen Rose, Lizzie, Mary Kate and James Gray. He said that James Gray, John Gray and Mary Ellen Gray Kenny were the only children of his grandmother, Catharine Gray, who was an aunt of Peter J. McDonnell, deceased; that James Gray and John Gray (his father) were both dead and that Mrs. Kenny, his aunt, was living at Greaugh, Drumhsh, County Longford, Ireland. Said John Gray further stated that Nellie Gray, aunt of Peter J. McDonnell, deceased, left four children, viz., Thomas Gray, Francis Gray, Mary Anne Gray McLoughlin and Bridget Gray Kennedy. That Mrs. McLoughUn lives at Cloone, County Leitrim, Ireland, and Mrs. Kennedy lives at Drumlish, County Longford, Ireland. That Thomas Gray died about two months ago and his widow lives at Drumlish, County Longford, Ireland. That he left four children, three boys and a girl, viz., Thomas Gray, Hugh Gray, Christopher Gray and Ellie Gray. That they all Uve with their mother and are all over twenty-one and urmiarried. The defendant Margaret McDonnell MuUaney deponent questioned especially about the family of James McDonnell, deceased, uncle of Peter J. McDonnell. Said defendant is the only survivor of the eight uncles and aunts of Peter J. McDormell, deceased, on his father's side. Deponent showed her a hst of the names of the widow and nine children of said James McDonnell, all of whom are defendants in this action. The names in said Ust were Bridget McDonnell (widow), John A., James, Alexander, Daniel, Patrick A., and Rosetta McDonnell, Mary Ellen McDonnell Dunn, Elizabeth Mc- Donnell Whitney, and Bridget McDonnell Rogers. Mrs. MORTGAGES ON REAL PROPERTY 847 Affidavit on Motion for Order for Publication of Summons Mullaney said that John A. McDonnell was employed on the " New York World " and that she had just been visiting him at Atlantic City, N. J. That he was unmarried, as was also James McDonnell. That she did not know the address of Alexander McDonnell but would get it for me, which she later did. That I^aniel McDonnell was living at Depew, N. Y., the last she heard of him and she believed he was still there. Deponent showed Mrs. Mullaney the addresses of James, Patrick A. and Rosetta McDonnell, Mrs. Dunn, Mrs. Whitney and Mrs. Rogers, which he had obtained from Mrs. Mullaney's affidavit hereto annexed, and she said that she did not know of any change in said addresses and that she believed all of said parties were still living at the places named in her said affidavit, which are the same places -named in paragraph IX of this affidavit. The defendant Alexander McDonnell deponent found at No. 220 West 60th Street, New York City, his address having been furnished by Mrs. Mullaney. Deponent questioned him as to the names and addresses of his mother, brothers and sisters, being the widow and children of James McDonnell, deceased. He said the names as given in my interview with Mrs. Mullaney above were correct and that the last he had heard, which was some months ago, his mother, brothers and sisters who were in Ireland lived at the places there Mrs. Mul- laney had stated. That if there had been any change in their residences he would have heard of it. The defendant Alexander Rogers and his wife deponent saw at No. 709 Eighth Avenue, New York City, his address having been furnished by the defendant, Ellen Reynolds. He said he was a son of Mary Anne McDonnell Rogers, aunt of Peter J. McDonnell, deceased, and that she had seven chil- dren, viz., Ellen Rogers Burbage, Lizzie Rogers MaUoy, Mary Ann Rogers McCabe, Margaret Rogers McNally, Alexander Rogers, James Rogers and Thomas Rogers. That they are all Uving except Mrs. Malloy, James Rogers and Thomas Rogers. That Mrs. Malloy left a husband and eight children. That James Rogers and his wife both died in Ireland in the 848 Bradbury's lawyers' manual Affidavit on Motion for Order for Publication of Summons same week, in 1908. That said James Rogers was never in this country. He left seven children, viz., James, Maggie, Alexander, John, Elizabeth, Brigid, and Mary Ann Rogers. That they are all living except Mary Ann who died in 1912 unmarried. That Thomas Rogers died unmarried more than thirty years ago. Deponent further questioned said Alexander Rogers about the heirs of Catharine Gray and Nellie Gray, deceased aunts of Peter J. McDonnell, and he gave deponent the same statement as to them as is above set forth in the state- ment of defendant John Gray except that he said the wife of Frank Gray had been dead some years and that John Gray, son of Catharine Gray, died in Ireland about twelve years ago and that said John Gray, was never in this country. That deponent has detailed the statements received from five of the defendants questioned by him as to the names and residences of the heirs of Peter J. McDonnell, deceased, and that the statements of the others were corroborative of those here set out. Alexander Rogers said that his sister, defendant Mar- garet Rogers McNally, resided at Fallon, Nevada, and was there now as far as he knew, and had no present intention of coming to New York, and was not expected here in the near future. That several of said defendants served by deponent were writing and receiving letters from their relatives in Ireland and some of them had recently come from Ireland. (c) That deponent wrote seven letters on June 30th, 1915, to the following named persons, viz., Edward Burbage, Borna- coUa, Johnstons Bridge, County Longford, Ireland. Matthew Malloy, Baragh, Drumlish, County Longford, Ireland. Mrs. Ellen Gray, Annaugh, County Leitrim, Ireland. Mrs. Bridget McDonnell, Melkajh, Drumlish, County Longford, Ireland. Mrs. Mary Anne Rogers McCabe, Drumlish, County Long- ford, Ireland. John Rogers, DrumUsh, County Longford, Ireland. Thomas Gray, Drumlish, County Longford, Ireland. That all of said parties are defendants herein except John Rogers and Thomas Gray, who died during the pendency of this action. That in these letters deponent requested informa- MORTGAGES ON REAL PROPERTY 849 Affidavit on Motion for Order for Publication of Summons tion as to the said defendants, the heirs of Peter J. McDonnell, .their ages, places of residence, and whether married. That deponent has received repUes to six of his said letters of which the following are copies: (Copies of these letters were inserted in the affidavit at this point.) That as to said defendant John McDonnell, deponent is in- formed by three of his brothers, who are also executors of his father's will under which he derives an income, that said John McDonnell is permanently located at Tulsa, Tulsa County, Oklahoma. James F. McDonnell said that his brother, said John McDonnell, is in business at Tulsa, Oklahoma, that he is now there, and he is' not expected to return to New York in the near future. XIII. That the defendant Daniel McDonnell is a proper and necessary party defendant to this action for the reason that he is an heir of Peter J. McDonnell, deceased, and has an interest in the premises affected by this action. XIV. That the plaintiff has been and will be unable with due diUgence to make personal service of the second supple- mental summons in this action on the defendant Daniel Mc- Donnell for the reason that said defendant cannot be found within the State of New York and the plaintiff is unable after dihgent inquiry to ascertain whether the defendant Daniel McDonnell is or is not a resident of this State. XV. That the source of deponent's information is as follows: On July 9, 1915, deponent called on George J. Mullaney, at 149 Edgecombe Avenue, N. Y. City, and served papers on him in this action. He is a first cousin of Daniel McDonnell. De- ponent asked him about Daniel McDonnell and he stated that Daniel is a black sheep of the family. He started for Niagara Falls about six weeks ago, having been sent for by Mullaney's brother to take a job there; Mrs. Mullaney, mother of George J. Mullaney, furnished the money for the trip. Daniel never showed up in Niagara Falls and has not been heard from since. He is married but does not live with his wife. George J. Mul- laney does not know where she lives but thinks his mother does. On July 9, 1915, deponent called on Mrs. Margaret Mullaney 850 Bradbury's lawyers' manual Affidavit on Motion for Order for Publication of Summons at 367 West 27th Street and served papers on her in this action and asked her about Daniel McDonnell. She is an aunt of Daniel McDonnell. She says the last she heard from Daniel he was living at Depew, N. Y. She believes he is living there now. On July 13th, deponent called on Sarah Feeney McDonnell, wife of Daniel McDonnell, at New York Hospital, 8 West 16th Street, and served papers on her, her address having been furnished by Mrs. Mullaney. She said that she and her hus- band had not lived together for two years in October, 1915. That they last lived together at 519 West 52d Street. That they had to leave there on account of her husband's being always drunk and never working. That she stored all her furni- ture and has since lost it as she did not have the money to pay for it. That the last she saw of her husband was in July, 1914, when she was living with a Mrs. Grimshaw at 433 West 54th Street, three flights up. That he came to see her there but was drunk. That she has since heard from friends that he was out of town. That she does not see the other members of the McDonnell family and that if Mrs. Mullaney does not know where her husband, Daniel McDonnell, is, no one does. On July 14, 1915, at 220 West 60th Street, deponent served papers in this action on Alexander McDonnell and Bridget Kilbride McDonnell, his wife, and also asked them about Daniel McDonnell, who is the brother of Alexander and brother- in-law of Bridget Kilbride McDonjiell. Alexander McDonnell says that Daniel is a laborer and an all round man. That he sometimes attends bar. That he has not seen Daniel in a long time. Mrs. Alexander McDonnell says that she last saw Daniel around Easter. That she does not know where he is. That he is wild. On July 30, 1915, deponent wrote to Mrs. Mullaney, Post Master at Depew, N. Y., and also to Lewis & Carroll, attorneys, of Buffalo, N. Y. Deponent received no reply from Mrs. Mullaney, and no reply from the Post Master. Deponent sent Lewis & Carroll a copy of the supplemental MORTGAGES ON REAL PROPERTY 851 Affidavit on Motion for Order for Publication of Summons summons and amended complaint herein and requested them to locate and serve the said Daniel McDonnell. That said attorneys sent their representative to Depew, Erie Coimty, N. Y., and he endeavored to locate and serve said Daniel Mc- Donnell. He inquired at the Post Office and made several attempts to find and serve the said Daniel McDonnell, but without success. That deponent then instructed said LeTOS & Carroll to deliver the papers to the Sheriff of Erie County for service, which they did. That the certificate of said Sheriff of Erie County that he was unable to find said Daniel McDonnell within his County is hereto annexed and made part of this affidavit. That deponent has investigated at every place the said Daniel McDonnell was said to have been in the State of New York, and has examined the New York City Directory for several years back and looked up all the Daniel McDonnells found therein but has been unable to find the said Daniel McDonnell. Deponent believes from statements made to him from members of the family of said Daniel McDonnell and from deponent's own efforts to locate him that he is shiftless and irresponsible and that it is impossible to find out whether he is now a resident of the State of New York or not. That the last place in the State of New York said defendant was known to be was Depew, Erie County, N. Y. XVI. That the plaintiff has endeavored to obtain the names and places of residence of all the heirs at law of said Peter J. McDonnell, deceased, using such means as could be employed for that purpose. That in view of the fact that the evidence as to such heirs and their residences is necessarily limited to statements of many persons, some of whom are unused to the exactness required in such matters, also to letters from persons residing in Ireland and such records as deponent could find, the plaintiff is uncertain whether it has found all of the heirs of said Peter J. McDonnell or not, although it has found none other than those named. That plaintiff by reason of such uncertainty has deemed it prudent to bring into this action as parties defendant such heirs at law of Peter J. McDonnell, 852 Bradbury's lawyers' manual Affidavit on Motion for Order for Publication of Summons deceased, other than those named as defendants in this action, as are unknown to plaintiff, and their husbands, wives or wid- ows, heirs at law, devisees, legatees, executors or adminis- trators, judgment creditors, assignees, grantees, trustees, trustees in bankruptcy, receivers, lienors and successors in interest, and their respective husbands, wives or widows, if any, aU of whom and whose names and places of residence, except as herein stated, are unknown to plaintiff. XVII. That all of said defendants whose names and places of residence are unknown to plaintiff are proper and necessary parties defendant to this action for the reason that they are or may be entitled to some vested or contingent interest in the property affected by this action as heirs of said Peter J. McDon- nell, deceased, or as parties deriving an interest through said heirs, and that plaintiff has been and wiU be unable with due diligence to make personal service of the second supplemental smnmons in this action on the said unknown defendants or any of them. XVIII. That the plaintiff is a corporation incorporated by and under the Laws of the State of New York. XIX. That no previous ^appUcation has been made in this action for an order for the service of the second supplemental summons by pubUcation upon said defendants named in par- agraph IX of this affidavit, upon said defendant Daniel McDon- nell and upon the defendants aforesaid, whose names and places of residence are unknown to plaintiff. Sworn to before me, this 1 Henry B. Hammond. 27th day of October, 1915. {Signature and title of officer.) Attached to the foregoing affidavit as exhibits was a copy of the affidavit of Margaret McDonnell MuUaney in the partition action of McDonnell v. Reynolds to which reference is made in the foregoing affidavit, and also the certificate of the Sheriff of Erie County as follows: {Title same as principal affidavit in the text.) MORTGAGES ON EEAL PROPERTY 853 Affidavit on Motion for Order for Publication of Summons State of New York County of Erie City of Buffalo ss I, Edward Stengel, Sheriff of Erie County, do hereby CERTIFY, that on the 21st day of September, 1915, a copy of the annexed summons and complaint was placed in my hands for service on Daniel McDonnell, one of the defendants in the above-entitled action, according to law. I DO FURTHER CERTIFY, that I havB made diligent efforts to find the said defendant in my County, but I have not been able to find the said defendant within the County of Erie, and to my best knowledge, information and belief the said defendant is not now within the State of New York and I am unable to ascertain his present whereabouts. Wherefore, I certify and return the said defendant Daniel McDonnell, not found. Dated, Buffalo, N. Y., September 29th, 1915. Edward Stengel, Sheriff of Erie County, By Louis E. Riley, Deputy Sheriff. 854 Bradbury's lawyers' manual Order for Publication of Summons Against Absent and Unknown Defendants FORM NO. 476 Order for Publication of Summons Against Absent and Unknown Defendants New York Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, against Ellen Reynolds, individually and as Executrix of the Last Will and Tes- tament of John Reynolds, de- ceased; (and names of all other de- fendants) . Defendants. Upon the second supplemental summons and duly verified second amended complaint filed in this action on the 5th day of October, 1915, and now presented to me, showing a sufficient cause of action against the defendants Mary Ann Rogers McCabe (and names of other i defendants), Daniel McDonnell, and all other heirs at law of Peter J. McDonnell, deceased, and their husbands, wives or widows, heirs at law, devisees, legatees, executors or administrators, judgment creditors, assignees, grantees, trustees, trustees in bankruptcy, receivers, lienors and successors in interest, and their respective husbands, wives or widows, if any, all of whom, and whose names and places of residence, except as herein stated are unknown to plaintiff; and jUpon the annexed affidavit of Henry B. Hammond, verified the 27th day of October, 1915, and certificate of Edward Stengel, Sheriff of the County of Erie, dated the 29th day of September, 1915, by which the plaintiff has made proof to my satisfaction that the second amended complaint herein demands judgment that the vested lien in favor of the plaintiff be enforced, and MORTGAGES ON REAL PROPERTY 855 Order for Publication of Summons Against Absent and Unknown Defendants that the aforesaid defendants be barred and foreclosed of all right, claim, lien and equity of redemption in the property described in the said second amended complaint, and that the aforesaid defendants are necessary and proper parties defendant to this action and that the plaintiff has been and will be; unable with due diligence to make personal service of the second supplemental summons within the State of New York on said defendants and on the persons hereinafter named who are parents, guardians and persons with whom such of said de- fendants as are infants reside for the reason that said parties, except said defendant Daniel McDonnell, are not resi(^ents of the State of New York but reside without said Stated at the places named in said affidavit of Henry B. Hammond find are now out of this State and that the plaintiff is unable after diligent inquiry to ascertain the present whereabouts of the defendant Daniel McDonnell, or whether he is or is not a resident of this State, and that the unknown defendants who are described as above remain unknown to the plaintiff as to their names and places of residence ; Now, on motion of R. & E. J. O'Gorman, attorneys for the plaintiff in the above-entitled action, it is Ordered that service of the second supplemental summons in the above-entitled action upon the defendants Mary Ann Rogers McCabe {names of other defendants), be made by pub- lication thereof in two newspapers, viz: in the " New Yor]i Law Journal," and in the "New York Commercial," both published in the County of New York, in the State of New York, hereby designated as being most likely to give notice to said defendants, once a week for six successive weeks, and it is further Ordered that on or before the day of the first pubUcation as aforesaid, the plaintiff deposit in the General Post Office in the Borough of Manhattan, in the City and County of New York, sets of copies of the second supplemental summons and seconl amended complaint in this action and of this order, each con- tained in a securely closed post-paid wrapper, directed as follows: — (names and addresses of parties to he thus served), and I being satisfied by said affidavit that the plaintiff cannot 856 Bradbury's lawyers' manual AiBdavit of Mailing with reasonable diligence ascertain the place or places where the defendants above described, whose names and places of residence are unknown to plaintiff, would probably receive matter transmitted through the post office, dispense with the deposit of any papers therein directed to them. Dated County Courthouse, New York County, October 30th, 1915. Mitchell L. Erlanger, Justice of the Supreme Court of the State of New York. FORM NO. 477 Affidavit of Mailing (Title of Action) (Title Same as Affidavit, Form No. 476) State of New York City and County of New York ss: Henry B. Hammond being duly sworn, says: That he is over the age of twenty-one and an attorney in the office of R. & E. J. O'Gorman, the attorneys for the plaintiff herein, whose office is in the Borough of Manhattan, in the City of New York, and that both of said attorneys reside in the Borough of Manhattan in the City of New York. That on the 9th day of November, 1915, deponent deposited in the general post office in the Borough of Manhattan, in the Qty and County of New York, fifty-seven sets of copies of the second supplemental summons and second amended complaint, and of the order of publication in this action, copies of which are hereto annexed, each contained in a securely closed post- paid wrapper respectively directed to the several defendants and persons served on behalf of infants hereinafter named at MORTGAGES ON REAL PROPERTY 857 Summons and Notice as Published the places and addresses below stated : {names and addresses of defendants to be thus served) . Sworn to before me, this 11th 1 Henry B. Hammond. day of November, 1915. J {Signature and title of officer.) FORM NO. 478 Summons and Notice as Published New York Supreme Court, County of New York. The Emigrant Industrial Savings Bank, Plaintiff, against Ellen Reynolds, individually and as executrix of the last will and tes- tament of John Reynolds, de- ceased {names of all defendants), Defendants. To the above-named defendants: You are hereby summoned to answer the second amended complaint in this action, and to serve a copy of your answer on the plaintiff's attorneys within twenty days after the service of this second supplemental summons, exclusive of the day of service, and in case of your failure to appear or answer, judg- ment will be taken against you by default for the relief de- manded in the second amended complaint. Dated New York, October 5th, 1915. R. & E. J. O'GORMAN, Plaintiff's Attorneys, Office and Post Office Address, 51 Chambers Street, Borough of Manhattan, City of New York. 858 Bradbury's lawyers' manual Petition for Appointment of Guardian Ad Litem for Infant Defendants To the defendants Mary Ann Rogers McCabe {names of defendants thus served). The foregoing second supplemental summons is served upon you by publication, pursuant to an order of Hon. Mitchell L. Erlanger, a Justice of the Supreme Court of the State of New- York, dated the 30th day of October, 1915, and filed on the 5th day of November, 1915, with a copy of the second amended complaint in the office of the Clerk of the County of New York, at the County Courthouse, in the Borough of Manhattan, in the City of New York, County of New York and State of New York, the original second amended complaint having been filed in said office on the 5th day of October, 1915. Dated New York, November 8th, 1915. R. & E. J. O'GORMAN, Plaintiff's Attorneys, Office and Post Office Address, 51 Chambers Street, Borough of Manhattan, City of New York. FORM NO. 479 Petition for Appointment of Guardian Ad Litem for Infant Defendants {Title of Action) To the Supreme Court of the State of New York : The petition of Henry B. Hammond shows: I. That he is an attomey-at-law in the office of R. & E. J. O'Gorman, the attorneys for the plaintiff in the above-entitled action, and has charge of said action. That said plaintiff is a domestic banking corporation. That this action is brought to foreclose a mortgage on real property situate in the County of New York. II. That the following named defendants are proper and necessary parties defendant to this action for the reason that MORTGAGES ON REAL PROPERTY 859 Name Age 1. James Rogers 18 years 28. Annette Morgan 10 " 29. AUred Morgan 30. Peter Morgan 31. Charlotte Morgan 32. Martha Morgan 9 " 6 " 4 " 3 " Petition for Appointment of Guardian Ad Litem for Infant Defendants they are heirs or persons deriving an interest through heirs of one Peter J. McDonnell, deceased, who was the sole owner of said mortgaged premises at the time of his death. That all of said defendants are infants, some under and some over four- teen years of age and the particulars as to their names, ages and residences, are as follows, to wit: Residence Drumlish, County Longford, Ireland, with John Rogers. All reside at No. 312 West 81st Street, in the Borough of Manhat- tan, City of New York, with the father, Alfred Y. Morgan. {The names and addresses of thirty -two infants were given in like manner.) III. That the first eighteen infant defendants above named are nonresidents of the State of New York, and reside in Ireland as above stated with the persons above named. That all of said eighteen infant defendants were served with the second supplemental summons and second amended complaint herein by publication pursuant to an order of this Court dated October 30, 1915. _ That said service was completed on the 22d day of December, 1915, and proof thereof was filed in the office of the Clerk of the County of New York on the 24th day of December, 1915. That both of the parents of the afore- said six infants named Rogers are dead, and they reside with the persons above named. That the father of the aforesaid eight infants named Malloy is living and said infants reside with him as above stated. That the father of the aforesaid four infants named Gray is dead, and they all reside with their mother as above stated. That none of said infants has a General or Testamentary Guardian within the State of New York. IV. That all of the aforesaid fourteen infants named Mc- Donnell and Morgan reside with their respective fathers in the Borough of Manhattan, in the City, County and State of 860 Bradbury's lawyers' manual Petition for Appointment of Guardian Ad Litem for Infant Defendants New York as above stated, and that they were all personally served with the second supplemental summons and second amended complaint in the said Borough of Manhattan, City, County and State of New York, on December 6th and 7th, 1915, as appears by the affidavits of service filed in said County Clerk's office December 24th, 1915. That none of said in- fants has a General or Testamentary Guardian within the State of New York. V. That more than twenty days have elapsed since the personal service upon said fourteen resident infant defendants of the second supplemental summons and second amended complaint, and a notice directed to their respective parents with whom they reside, that the plaintiff's attorneys would apply for the appointment of a guardian ad litem for said infants unless application for the appointment of such guardian ad litem were made on behalf of said infants within twenty days after such service. That no application for such appoint- ment has been made. That copies of said notice are hereto annexed, and the service of same appears from the afiidavits of deponent sworn to December 17th, 1915, also hereto an- nexed. That said infants over fourteen years of age have neglected to apply for the appointment of a guardian ad litem within twenty days after the completion of service upon them. That all of said infants are non-residents of the State of New York. VI. That on the 20th day of December, 1915, an order was made in this action directing that pursuant to Section 426 of the Code of Civil Procedure, a copy of the second supple- mental sunmions and second amended complaint herein be also delivered in behalf of said thirty-two infant defendants named in paragraph II of this affidavit to Henry A. Thellus- son, and that service on said infants should not be deemed complete until said second supplemental summons and second amended complaint were served upon and delivered to said Henry A. Thellusson. That service upon said Henry A. Thel- lusson as directed by said order was made by deponent on the 22d day of December, 1915, as appears by deponent's affidavit MORTGAGES ON REAL PROPERTY 861 Consent of Guardian sworn to December 23d, 1915, and filed on December 24th, 1915, in said County Clerk's office. Wherefore the plaintiff asks that sonie competent or suitable person be appointed guardian ad litem for said infant defendants James Rogers {naming them all), and be authorized and directed to appear, and defend this action in their behalf, and for such other and further relief as may be just. No previous application has been made for the order hereby sought. Dated New York, January 13th, 1916. Henry B. Hammond, Petitioner. State of New York County of New York "^ Henry B. Hammond, being duly sworn, says: That he is the petitioner above named. That he has read the foregoing petition and knows the contents thereof and that the same is true to the knowledge of deponent except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. Sworn to before me, this 13th | Henry B. Hammond. day of January, 1916. J {Signature and title of officer.) FORM NO. 480 Consent of Guardian {Title Same as Petition) I, Henry A. Thellusson, hereby consent to become the guard- ian ad litem of James Rogers {naming all infants), in the above action. Dated New York, January 15th, 1916. Henry A. Thellusson. 862 Bradbury's lawyers' manual Affidavit of Guardian as to Competency State of New York 1 L eg • County of New York J ' On this 15th day of January, 1916, before me personally came Henry A. Thelluson to me known and known to me to be the person described in and who executed the foregoing consent and acknowledged to me that he executed the same. {Signature and title of officer.) FORM NO. 481 Affidavit of Guardian as to Competency {Title of Action) State of New York 1 > SS ' County of New York J" Henry A. Thellusson being duly sworn, says: That he resides at No. 520 West 157th Street, in the Borough of Manhattan, in the City, County and State of New York. That he is an attorney and counsellor of this court and is fully competent to understand and protect the rights of James Rogers {naming all infants), infant defendants in this action, and has no interest adverse to that of said infants and is not connected in business with the attorney or counsel of the plain- tiff or of any co-defendants having an interest adverse to that of said infants. That he is of sufficient ability to answer to the said infants for any damages which may be sustained by his negligence or misconduct in defense of this suit. That he is worth over two thousand dollars over and above all his debts and liabiHties and besides property exempt by law from execution, and that his property consists of money deposited in Bank. Sworn to before me, this 15th day of January, 1916. {Signature and title of officer.) Henry A. Thellusson. MORTGAGES ON REAL PROPERTY 863 Notice of Application for Appointment of Guardian Ad Litem FORM NO. 482 Notice of Application for Appointment of Guardian Ad Litem {Title of Action) To Robert E. McDonnell, father of the infants Francis P. R. McDonnell, Robert McDonnell, John McDonnell, James McDonnell, Peter McDonnell and Lawrence McDonnell, and the person with whom said infants reside: You ARE HEREBY NOTIFIED: That we shall apply to this Coiirt at a Special Term thereof for an order appointing a guardian ad litem to appear and defend this action on behalf of the infant defendants Francis P. R. McDonnell, Robert McDonnell, John McDonnell, James McDonnell, Peter Mc- Donnell and Lawrence McDonnell, unless you make an appli- cation for the appointment of such guardian ad litem or an application therefor is made on behalf of said infants within twenty days after personal service of the annexed summons upon them. Dated New York, November 26, 1915. (Signature and post office address of plaintiff's attorneys.) 864 Bradbury's lawyers' manual Affidavit of Service of Notice of Application for Appointment of Guardian FORM NO. 483 Affidavit of Service of Notice of Application for Appointment of Guardian Ad Litem {Title of Action) State of New York ■ Henry B. Hammond being duly sworn, deposes and says: That he is over the age of twenty-one years. That on the 6th day of December, 1915, at No. 60 Broadway, in the Bor- ough of Manhattan, in the City of New York, State of New York, he personally served the annexed notice for the appoint- ment of a Guardian ad litem for the infant defendants Francis P. R. McDonnell, Robert McDonnell, John McDonnell, James McDonnell, Peter McDonnell and Lawrence McDonnell in the above-entitled action upon Robert E. McDonnell, father of the said infant defendants, and the person with whom they reside by deUvering to and leaving with him in person a true copy of said notice. Deponent further says that he knew the person so served to be Robert E. McDonnell, father of said infant defendants and the person with whom they reside, they being infants under fourteen years of age. Sworn to before me, this 17th ' day of December, 1915. {Signature and title of officer.) Henry B. Hammond. MORTGAGES ON REAL PROPERTY 865 Order Appointing Guardian Ad Litem of Infant Defendants FORM NO. 484 Order Appointing Guardian Ad Litem of Infant Defendants At a Special Term, Part II of the New York Supreme Court, held in and for the County of New York, at the County Coiirt- house therein, on the 15th day of January, 1916. Present: Hon. John Ford, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Ellen Reynolds, individually and as Executrix of the Last Will and Testament of John Reynolds, deceased; Gilbert Ktjh; Edward Haughey; Katie Malloy; Ros- ETTA Reynolds; George J. Mul- LANEY and Frances Mullaney, his wife; Mary Ann Rogers Mc- CABE;etal., Defendants. On reading and filing the annexed petition of Henry B. Hammond, verified the 13th day of Januaj-y, 1916, for the appointment of a Guardian ad litem for James Rogers (naming all infants), infant defendants in this action, from which peti- tion it appears among other things that this action has been brought for the foreclosure of a mortgage upon certain lands in the County of New York; that some of the said infants are over the age of fourteen years, and some of them are under the age of fourteen years; that no application has been made by or on behalf of any of said infants for the appointment of guardians ad litem for them in said action, although more than twenty days have elapsed since the service upon them of the second 866 Bradbury's lawyers' manual Order Appointing Guardian Ad Litem oflnfant Defendants supplemental summons and the second amended complaint, and service upon the persons with whom said resident infants reside of notice of application for appointment of guardian ad litem; that said infants have no general or testamentary guard- ian within the State of New York and that the Emigrant In- dustrial Savings Bank, upon whose behalf this application is made, is the plaintiff in this action ; and upon proof of due serv- ice of notice of this application upon the persons with whom said resident infants reside, and the consent of Henry A. Thellusson duly acknowledged, and it satisfactorily appearing to the court by his affidavit verified the 15th day of January, 1916, that said Henry A. Thellusson is a competent and re- sponsible person and has no interest adverse to that of said infant defendants and is not connected in business with the attorney or counsel for the plaintiff or of any co-defendants having an interest adverse to that of said infants. Now, on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is Ordered that Henry A. Thellusson be and he hereby is appointed guardian ad litem for James Rogers {naming all infants), said infant defendants, and authorized and directed to appear and defend on their behalf in this action. Enter, J. F., , J. S. C. MORTGAGES ON REAL PROPERTY 867 Answer of Guardian Ad Litem FORM NO. 485 Answer of Guardian Ad Litem New York Suprfeme Court, County of New York. The Emigrant Industrial Savings Bank, Plaintiff, against {names of all defendants), Defendants. The defendants, James Rogers {names of all infants), by Henry A. Thellusson, their Guardian ad litem, answering the complaint of the plaintiff, say, that they are all strangers to all and singular the matters and things in said Complaint con- tained; that these , defendants are infants under the age of twenty-one years and claim such interest in the premises, in said complaint mentioned, as they are entitled to, and submit their rights and interest in the matters in question to the pro- tection of the court. Dated, New York, 24th day of January, 1916. Henry A. Thellusson, Guardian ad litem of the above-named infants, 51 Chambers Street, Borough of Manhattan, City of New York. {This answer is not verified.) 868 Bradbury's lawyers' manual Affidavit of Guardian Ad Litem for Allowance FORM NO. 486 Affidavit of Guardian Ad Litem for Allowance {Title of Action) State of New York ] County of New York j ss: Henry A. Thellusson, being duly sworn, deposes and says, that he is an Attorney and Counsellor at Law, and maintains an office for the practice of law at No. 51 Chambers Street, Borough of Manhattan, City of New York. Deponent says that by an Order signed by Mr. Justice M. Warley Platzek, dated December 20th, 1915, he was designated, pursuant to Section 426 of the Code of Civil Procedure, as the person to accept service of the Second Supplemental Summons and Second Amended Complaint in the above-entitled action, in behalf of the thirty-two infant defendants, namely {names of infants). Deponent further says, that by an Order signed by Mr. Justice John Ford, dated January 15th, 1916, he was appointed the Guardian ad litem in the above-entitled action, to appear and defend on behalf of the infant defendants above named. That he examined the circumstances of this action and to the best of the deponent's ability made himself acquainted with the rights of his said wards, and has taken all steps necessary for the protection of such rights, to the best of his knowledge. The following items give a more detailed account of the services rendered by the deponent: — On December 22d, 1915, deponent was served with a copy of Order, designating him to accept service for the thirty- two above-named infants, and also with the Second Supple- mental Smnmons and Second Amended Complaint herein, deponent gave written admission of service thereof. On January 15th, 1916, deponent executed his consent and MORTGAGES ON REAL PROPERTY 869 Affidavit of Guardian Ad Litem for Allowance affidavit of qualification to act as Guardian ad litem for said thirty- two infants. On January 19th, 1916, deponent was served with a copy of Petition, Affidavits, Consent and Order appointing him Guard- ian ad litem for the said thirty-two infant defendants herein, and gave written admission of service thereof. On January 22d, 1916, deponent examined record of Mort- gage, filed in the Register's Office, New York County, time spent, one-half hour. On January 24th, 1916, deponent drew answer and served it on attorneys for plaintiff. Obtained written admission of service. On January 25th, 1916, deponent filed answer in New York County Clerk's Office. On February 21st, 1916, deponent was served with a copy of Notice of Motion, Affidavit and Proposed Order to appoint Referee to compute. On February 24th, 1916, deponent appeared before Mr. Justice Finch, Special Term, Part I, upon return of Motion to appoint Referee to compute. On February 28th, 1916, deponent served with Summons to appear before Referee appointed to ascertain amount due plaintiff in this matter. Deponent attended before Referee and heard proofs of facts and circumstances alleged in this Com- plaint and the computation of the smn due the plaintiff. De- ponent's appearance noted. On February 29th, 1916, deponent served with a copy of Notice of filing Referee's Report, Notice of Motion to appoint Referee to sell, and Proposed Judgment herein, examined the same. Gave written admission. On March 1st, 1916, deponent served with copy of Order appointing Referee to compute amount due plaintiff and No- tice of Entry. Gave written admission. On March 6th, 1916, appeared in Special Term, Part I, before Mr. Justice Gavegan, on return of Notice of Motion for an Order confirming Report of Referee, and the Application for final Judgment herein. 870 Bradbury's lawyers' manual Notice of Motion to Bring in People of the State as Party Defendant For such services deponent respectfully asks the Court to grant such costs and compensation as to the Court may seem proper. Sworn to before me, this 1 Henry A. Thellusson. 9th day of March, 1916. J (Signature and title of officer.) FORM NO. 487 Notice of Motion to Bring in People of the State as Party Defendant ^ {Title of Action) Please take notice that upon the summons and complaint on file in this action, on the annexed affidavit of Henry B. Hammond, verified the 10th day of November, 1916, and on all other papers and proceedings herein, a motion will be made 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 Courthouse therein, on the 16th day of November, 1916, at ten thirty o'clock in the forenoon of that day, or as soon there- after as counsel can be heard, for an order as prayed for in said affidavit of Henry B. Hammond, bringing into this action the People of the State of New York as a party defendant, and directing that a supplemental summons issue to the defendant so brought in, and granting plaintiff leave to file and serve an amended complaint, said amendment being made so as to con- form the summons and complaint herein with the proposed supplemental summons and amended complaint, a copy of which is herewith served upon you, and for such other and further relief as to the court shall seem just. You will further take notice that an order, a copy of which is hereto annexed, will be submitted for signature to the Justice presiding at Special Term, Part I of this Court at his Chambers in the Borough of Manhattan, in the City of New 1 Attached to the papers were the proposed supplemental summons and amended complaint and also the proposed order, said order being Form No. 489. MORTGAGES ON REAL PROPERTY 871 Affidavit on Motion to Bring in People of the State as Party Defendant York, on the 16th day of November, 1916, at ten thirty o'clock in the forenoon. Dated, New York, November 10, 1916. (Signature and post office address of plaintiff's attorneys.) To : (all attorneys who have appeared in the action) . FORM NO. 488 Affidavit on Motion to Bring in People of the State as Party Defendant {Title of Action) State of New York t SS ' County of New York Henry B. Hammond, being duly sworn, deposes and says: That he is an attorney at law in the office of R. & E. J. O'Gor- man, the attorneys for the plaintiff herein. That said plain- tiff is a banking corporation, organized and existing under the laws of the State of New York. That this action is brought to foreclose a mortgage upon real property situated -in the Borough of Manhattan, in the City of New York, in said County of New York, and was commenced by the service of the smiimonsand complaint on the defendant Emanuel Glauber on August 3d, 1916. That said summons and complaint were filed in the office of the Clerk of the County of New York on the 30th day of August, 1916. That the defendant D. H. Jackson Co. is the owner of the equity in the real property covered by the mortgage to foreclose which this action is brought. That deponent has ascertained that said real property is subject to the lien of a judgment recovered against said D. H. Jackson Co. by the People of the State of New York, and said judgment creditor is therefore a necessary party defendant in this action. That plaintiff desires to obtain an order bringing into this action the above-named the People of the State of New York as a party defendant herein, and directing that a supplemental 872 Bradbury's lawyers' manual Affidavit on Motion to Bring in People of the State as Party Defendant summons issue to said defendant so brought in and that plain- tiff have leave to file and serve said supplemental summons and an amended complaint, the same being amended by adding the name of the People of the State of New York as a party- defendant in the caption thereof, and by adding a new para- graph to the complaint, to read as follows : "Eleventh: That the People of^ the State of New York is made a party defendant herein for the reason that it is the holder of a lien on the real property being foreclosed in this action, the said lien consisting of an unsatisfied judgment recovered against the defendant D. H. Jackson Co., owner of said real property, by the People of the State of New York, docketed on May 2, 1916, in the Court of Special Sessions of the County of New York in the amount of fifty dollars. That said judgment was docketed subsequent to the recording of the mortgage being foreclosed herein and that by reason thereof the People of the State of New York is a necessary and proper party defendant to this action." That plaintiff desires said amendments made so that said complaint when amended shall conform with the proposed amended complaint which is hereto annexed, without prejudice to the proceedings already had herein. That the only parties who have appeared in this action are the following, to wit: Mary E. Reisig, who appeared herein by WilHam F. Clare, Esq., her attorney, and demanded service of all papers herein, and D. H. Jackson Co. who appeared by Goldsmith, Rosenthal, Mork & Baum, its attorneys, and de- manded service of all papers herein. That no previous application has been made for the order hereby sought or any part thereof. Sworn to before me this tenth day of November, 1916. (Signature and title of officer.) Henry B. Hammond. MORTGAGES ON REAL PROPERTY 873 Order Bringing in People of the State as a Party Defendant FORM NO. 489 Order Bringing in People of the State as a Party Defendant At a Special Term, Part I of the New York Supreme Court, held in and for the County of New York, at the County Court- house, therein on the 16th day of November, 1916. Present: Hon. Eugene A. Philbin, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Mary E. Reisig, formerly Mary E. Harrington, individually and as Executrix of the Last Will and Tes- tament of John J. Harrington, deceased, D. H. Jackson Co., Emanuel Glauber and Sayles, Zahn Company, Defendants. On the summons and complaint on file in this action, and on reading and fihng the affidavit of Henry B. Hammond, verified the 10th day of November, 1916, hereto annexed, and on all papers and proceedings herein, and on the notice of this motion, dated November 10th, 1916, with proof of due service thereof on William F. Clare, Esq., Attorney for the defendant Mary E. Reisig, and Goldsmith, Rosenthal, Mork & Baum, Esqrs., Attorneys for Defendant, D. H. Jackson Co., the only parties entitled to such notice, and on motion of R. & E. J. O'Gorman, attorneys for plaintiff, it is Ordered that the People of the State of New York be and they hereby are brought into this action as a party defendant and that a supplemental sunmions herein issue to said de- fendant so brought in, requning said defendant to answer the 874 BRADBURY'S LAWYERS' MANUAL Notice of Motion to Bring in New Parties amended complaint in this action, and that plaintiff have leave to file and serve said supplemental summons and amended complaint, the same being amended by adding the name of the People of the State of New York as a party defendant in the caption thereof, and by adding a new paragraph to the complaint, to read as follows: "Eleventh: That the People of the State of New York is made a party defendant herein for the reason that it is the holder of a lien on the real property being foreclosed in this action, the said lien consisting of an unsatisfied Judgment recovered against the defendant D. H. Jackson Co., owner of said real property, by the People of the State of New York, docketed on May 2, 1916, in the Court of Special Sessions of the County of New York in the amount of fifty dollars. That said judgment was docketed subsequent to the recording of the mortgage being foreclosed herein and that by reason thereof the. People of the State of New York is a necessary and proper party defendant to this action." And that said amendments be made so as to conform said summons and complaint with the proposed supplemental sununons and amended complaint hereto annexed, without prejudice to the proceedings already had herein. Enter, E. A. P., J. S. C. FORM NO. 490 Notice of Motion to Bring in New Parties ^ (Title of Action) Please take notice that upon the summons and com- plaint, the order of this Court bringing into this action addi- tional parties and giving plaintiff leave to file and serve an ' Attached to the motion papers were the proposed supplemental summons and amended complaint and also the proposed order to be entered on the motion. This practice saves a good deal of time if the motion is granted. MORTGAGES ON REAL PROPERTY 875 Notice of Motion to Bring in New Parties amended complaint, on the supplemental summons and amended complaint and the annexed affidavit of Henry B. Hammond, sworn to the 3d day of March, 1916, and on all other papers and proceedings herein, a motion will be made at Special Term, Part I, of this Court, to be held at the County Courthouse in the Borough of Manhattan, in the City of New York on the 10th day of March, 1916, at 10:30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard, for an order as prayed for in said affidavit of Henry B. Hammond bringing into this action the persons therein named as parties defendant, and directing that a second supplemental summons issue to them, and granting plaintiff leave to file and serve the second supplemental summons and second amended complaint, and to file an amended notice of the pendency of this action, said amendments being made so as to conform the supplemental summons and amended com- plaint herein with the proposed second supplemental summons and second amended complaint, a copy of which is herewith served upon you, and for such other and further refief as to the Court shall seem just. You WILL FURTHER TAKE NOTICE that an Order, a copy of which is hereto annexed, will be submitted for signature to the Justice presiding at Special Term, Part I, of this Court, at his Chambers in the Borough of Manhattan, in the City of New York, on the 10th day of March, 1916, at 10:30 o'clock in the forenoon. Dated, New York, March 3d, 1916. {Signature and post office address of plaintiff's attorneys.) To: {all attorneys who have appeared in the action). 876 Bradbury's lawyers' manual Affidavit on Motion to Bring in New Parties FORM NO. 491 Affidavit on Motion to Bring in New Parties {Title of Action) State of New York SS * County of New York Henry B. Hammond being duly sworn, deposes and says that he is an attorney at law in the office of R. & E. J. O'Gor- man, the attorneys for the plaintiff herein. That said plain- tiff is a banking corporation, organized and existing under the laws of the State of New York. That this action is brought to foreclose a mortgage upon real property situated in the Borough of Manhattan, in thei City of New York, in said County of New York, and was commenced by the service of the summons and complaint on the defendant Mary Cashn O'Beirne, on the 27th day of July, 1915. That said summons and complaint were filed in the office of the Clerk of the County of New York on the 20th day of January, 1916. That on the 20th day of January, 1916, an order was duly made and entered herein bearing date on that day striking out of this action Mary Caslin O'Beirne and James O'Beirne and substituting in the place and stead of said Mary Caslin O'Beirne, George O'Beirne and Lillie O'Beirne as executors of the last will and testament of Mary Caslin O'Beirne, deceased, and also bringing into this action Lillie O'Beirne, Retia Reynolds, Anawanda Garage Co., Inc., and the People of the State of New York. The said order further directed that a supple- mental siunmons issue to said defendants so brought in and granted plaintiff leave to file and serve an amended complaint, together with a notice of the pendency of this action. That on the 24th day of January, 1916, said supplemental summons and amended complaint and notice of pendency of action were filed in the office of the Clerk of the County of New York. MORTGAGES ON REAL PROPERTY 877 Affidavit on Motion to Bring in New Parties That the defendant George O'Beirne is the owner of an undivided interest in the real property covered by the mort- gage to foreclose which this action is brought. That deponent has ascertained that said real property is subject to the lien of nine certain judgments recovered against the said George O'Beirne. That the said judgments are held by the following named persons and corporations, all of whom are necessary parties defendant in this action, to wit: Ede Levenson, Erna Svec, Henry Phillips, A. T. Stewart Realty Company, Ellis Schoonmaker, doing business as E. Schoonmaker Co., James A. Carey, A. L. A. Manufacturing & Supply Co., Michelin Tire Company, Brunner Manufacturing Company. That plaintiff desires to obtain an order bringing into this action the above-named persons and corporations as parties defendant herein, and directing that a second supplemental simamons issue to said defendants so brought in, and that plaintiff have leave to file and serve said second supplemental summons and a second amended complaint and to file an amended notice of the pendency of this action, all of same being amended by adding the name of the aforesaid persons and corporations as parties defendant in the caption thereof, and by amending paragraph "First" of said amended com- plaint so that the same shall read as follows: "First: That the plaintiff and defendants Anawanda Garage Co., Inc., North British & Mercantile Insurance Company, A. T. Stewart Realty Company, A. L. A. Manufacturing & Supply Co., Michelin Tire Company and Brunner Manufac- turing Company are domestic corporations organized and existing under the laws of the State of New York." That plaintiff desires said amendments made so that said complaint when amended shall conform with the proposed second amended complaint which is hereto annexed, without prejudice to the proceedings already had herein. That the only parties who have appeared in this action are the following, to wit: George O'Beirne, who appeared herein by William L. Tierney, Esq., his attorney, and demanded service of all papers herein; Luke D. Stapleton who appeared 878 bradbuey's lawyers' manual Affidavit on Motion to Bring in New Parties herein by Ernest P. Seelman, Esq., his attorney, and North British & Mercantile Insurance Company who appeared herein by C. A. Wilson, Esq., its attorney, and both of said last- named parties waived service of all papers except notice of sale and of surplus money proceedings, and the People of the State of New York who appeared herein by Hon. E. E. Woodbury, Attorney General, its attorney, and waived serv- ice of all papers except amended complaint, application for judgment, notice of sale, referee's report of sale and surplus money proceedings. That no previous application has been made for the order hereby sought, or any part thereof. Sworn to before me, this 3d day of March, 1916. {Signature and title of officer.) Henry B. Hammond. MORTGAGES ON REAL PROPERTY 879 Order Bringing in New Parties FORM NO. 492 Order Bringing in New Parties At a Special Term, Part I, of the New York Supreme Court held in and for the County of New York, at the County Court- house therein, on the 10th day of March, 1916. Present: Hon. Edward J. Ga vegan. Justice. The Emigrant Industrial Savings Bank, Plaintiff, against George O'Beirne and Lillie O'Beirne, as Executors of the Last "Will and Testament of Mary Caslin O'Beirne, deceased, IjTjke D. Sta- pleton. North British & Mer- cantile Insurance Company, George O'Beirne, Lillie O'Beirne, Retia Reynolds, Ana- WANDA Garage Co., Inc., and The People of the State of New York, Defendants. On the summons and complaint on file in this action, on the order bringing into this action additional parties and giving plaintiff leave to file and serve an amended complaint, on the supplemental summons and amended complaint on file in this action, and on reading and filing the affidavit of Henry B. Hammond verified the 3d day of March, 1916, hereto annexed, and on all papers and proceedings herein, and on the notice of this motion dated March 3d, 1916, with proof of due service thereof on William L. Tierney, Esq., attorney for the defendant George O'Beirne, the only party 880 Bradbury's lawyers' manual Order Bringing in New Parties entitled to such notice, and on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is Ordered that Ede Levenson, Eran Svec, Henry Phillips, A. T. Stewart Realty Company, Ellis Schoonmaker, doing business as E. Schoonmaker Co., James A. Carey, A. L. A. Manufacturing & Supply Co., Michelin Tire Company, and Brunner Manufacturing Company, be and they hereby are brought into this action as parties defendant, and that a second supplemental summons herein issue to said defendants so brought in requiring them to answer the second amended complaint in this action, and that plaintiff have leave to file and serve said second supplemental summons and second amended complaint, and to file an amended notice of the pend- ency of this action, all of same being amended by adding the names of the aforesaid Ede Levenson, Erna Svec, Henry Phillips, A. T. Stewart Realty Company, Ellis Schoonmaker, doing business as E. Schoonmaker Co., James A. Carey, A. L. A. Manufacturing & Supply Co., Michelin Tire Company, and Brunner Manufacturing Company as parties defendant in the caption thereof, and by amending paragraph "First" of said amended complaint so that same shall read: "First: That the plaintiff and defendants Anawanda Garage Co., Inc., North British & Mercantile Insurance Company, A. T. Stewart Realty Company, A. L. A. Manufacturing & Supply Co., Michelin Tire Company and Brunner Manufac- turing Company are domestic corporations organized and existing under the laws of the State of New York." And that said amendments be made so as to conform said supplemental summons and amended complaint with the proposed second supplemental summons and second amended complaint hereto annexed, without prejudice to the proceed- ings already had herein. Enter, E. J. G., J. S. C. MORTGAGES ON REAL PROPERTY 881 Notice of Motion to Strike out Parties and Bring in Parties FORM NO. 493 Notice of Motion to Strike out Parties, Bring in Parties and Correct Names of Parties ' {Title of Action) Please take notice that on the summons and complaint and the supplemental siunmons and amended complaint on file in this action, on the order of this Court bringing into this action additional parties and giving plaintiff leave to file and serve an amended complaint, and on the affidavit of Henry B. Hammond, verified the 30th day of August, 1915, a copy of which is herewith served upon you, and on all other papers and proceedings herein, a motion will be made at Special Term, Part I, of this Court to be held at the County Courthouse, in the Borough of Manhattan, in the City of New York, on the 7th day of September, 1915, at 10:30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard for an order as prayed for in said affidavit of Henry B. Hammond, striking out parties defendant, correcting the names of other parties defendant, bringing into this action the persons therein named as parties defendant and directing that a second supple- mental summons issue to them and granting plaintiff leave to file and serve a second supplemental summons and second amended complaint and to file an amended notice of the pend- ency of this action, said amendments being made so as to con- form the supplemental summons and amended complaint herein with the proposed second supplemental summons and second amended complaint, a copy of which is herewith served upon you, and for such other and further relief as to the Court shall seem just. . You WILL further take notice that an order, a copy of which is hereto annexed, will be submitted for signature to the 1 Annexed to the motion papers were a, copy of the proposed supplemental summons and amended complaint and also the proposed order. 882 Bradbury's lawyers' manual Affidavit on Motion to Strike out Parties and Bring in Parties Justice presiding at Special Term, Part I, of this Court, at his Chambers, in the Borough of Manhattan, in the City of New York, on the 7th day of September, 1915, at 10:30 o'clock in the forenoon. Dated, New York, August 31st, 1915. Yours etc., (Signature and post office address of plaintiff's attorneys.) To: (all attorneys who have appealed in the action). FORM NO. 494 Affidavit on Motion to Strike out Parties, Bring in Parties and Correct Names of Parties (Title of Action) State of New York County of New York ' Henry B. Hammond being duly sworn, deposes and says: I. That he is an attorney in the office of R. & E. J. O'Gonnan, the attorneys for the plaintiff in this action, and has charge of same. That this action is brought to foreclose a mortgage upon real property situated in the Borough of Manhattan, in the City of New York, which mortgage is recorded in the office of the Register of the County of New York and that the whole principal sum secured by said mortgage is now due and payable. II. That on the 28th day of April, 1915, an order was duly made and entered herein bearing date on that day, bringing into this action a number of persons as parties defendant, direct- ing that a supplemental summons issue to said defendants and granting plaintiff leave to file and serve an amended complaint, together with an amended notice of pendency of action. III. That on the 30th day of April, 1915, said supplemental summons and amended complaint and amended notice of pendency of action were filed in the office of the Clerk of the County of New York. IV. That all of the defendants residing in the State of New MORTGAGES ON REAL PROPERTY 883 Affidavit on Motion to Strike out Parties and Bring in Parties York have been served with the summons or the supplemental summons herein, or have appeared by attorney, except those hereinafter named who are not necessary parties defendant. That a number of the defendants reside without the State of New York, many of them residing in Ireland, and it will be necessary to serve said nonresident defendants, by publication or personally without the State. V. That deponent has ascertained from interviews with defendants whom he has personally served, and from letters received from defendants residing in Ireland in answer to letters written by deponent, and from an examination of the returns on searches that some of the parties named as defendants are not necessary parties defendant herein, also that there are other persons not parties to this action whom it will be necessary to bring into this action, also that certain of the defendants have been incorrectly named. That it is desirable to strike out said unnecessary parties, to bring into this action all necessary parties and make said corrections before serving the said nonresident defendants. VI. That the defendants Katie MoUoy; Rosetta Reynolds; Jane Burbage; the name "Jane" being fictitious, her first name being unknown to plaintiff; Jane McDonnell, the name "Jane " being fictitious, her first name being unknown to plain- tiff; Jane Gray, the name "Jane " being fictitious, her first name being unknown to plaintiff; Thomas Gray; Jane McDonnell, the name ^' Jane " being fictitious, her first name being unknown to plaintiff; Mary McDonnell, the name "Mary" being ficti- tious, her first name being unknown to plaintiff; Sarah Mc- Donnell, the name "Sarah" being fictitious, her first name being unknown to plaintiff; James Fitzgan; Mary Fitzgan; Michael Brennan; Margaret Brennan; John Dinally; Mary Dinnally; Mary Anderson; Majy Agnes; Perie Baldo and Giasomo Carnerallo are not necessary party defendants herein and that none of them have been served with the summons herein nor have any of them appeared herein. That the defendant Charlotte A. McDonnell was served with the siun- mons on July 7th, 1915, but did not appear herein. That said 884 BRADBURY S LAWYERS MANUAL Affidavit on Motion to Strike out Parties and Bring in Parties defendant had a dower interest in said mortgaged premises and she died on the 20th day of August, 1915. VII. That deponent has ascertained that the defendant Brigid Burbage has married since this action was commenced, and that her name is now Brigid Lacey. Deponent has also ascertained that the correct name of the defendants named in the complaint by the names given in the first column below are as stated in the second column below, to wit. Names in Complaint Annie Burbage Jane O'Connor, the name "Jane" being fictitious, her first name being un- known to plaintiff William O'Connor James O'Connor Margaret Mullaney Margaret Gray Wenvell Thomas Gray Daniel Gray Bee Gray Tessie McDonnell Sarah McDonnell Jane McDonnell, the name "Jane" be- ing fictitious, her first name being un- known to plaintiff. Alexander McDonnell Annie McDonnell, the name "Annie" being fictitious, her first name being unknown to plaintiff. Lawyers' Title Insurance and Trust Co. Correct Names Mary Shanley Burbage ■ Winifred O'Connor WiUiam P. O'Connor James F. O'Connor Margaret McDonnell Mullaney Mary Gray Wenzel Thomas J. Gray Daniel L. Gray Bridget Gray Bridget Kilbride McDonnell Sarah Feeney McDonnell Alice McDonnell Alexander J. McDonnell Katherine McDonnell Lawyers' Title and Trust Co. VIII. That the following named persons are necessary and proper parties defendant to this action, they being part owners of the equity of redemption or holders of interests therein or liens thereon subsequent to plaintiff's mortgage, to wit: Maggie Gray Abraham, Jane McDonnell, wife of Patrick A. McDon- nell, the name "Jane" being fictitious, her first name being unknown to plaintiff, John McDonnell; James F. McDonnell, Robert E. McDonnell and Peter L. McDonnell, as Executors of and Trustees under the Last Will and Testament of Peter McDonnell, deceased; Francis P. R. McDonnell, Robert MOETGAGES ON KEAL PROPERTY 885 Affidavit on Motion to Strike out Parties and Bring in Parties McDonnell, John McDonnell, James McDonnell, Peter Mc- Donnell, Lawrence McDonnell, Margaret McDonnell, Anna McDonnell, Katherine McDonnell, Annette Morgan, Alfred Morgan, Peter Morgan, Charlotte Morgan, Martha Morgan, Thomas Gray, Hugh Gray, Christopher Gray, Ellie Gray; Michael McGovern, as Executor of the Last Will and Testa- ment of James Rogers, deceased; New York Telephone Com- pany, Patrick Murphy and Richard Bennett. IX. That the twelfth paragraph of the amended complaint does not allege the particulars of the estates on which the trans- fer tax may be unpaid for the reason that said particulars were unknown to plaintiff when said amended complaint was filed. That deponent has since ascertained said particulars and same should be set forth in the complaint as required by statute. X. That plaintiff desires an order of this court directing that the parties named in paragraph VI of this affidavit be stricken out as parties defendant and that in all future proceedings had in this action the defendants named in paragraph VII be described and referred to under their correct names, and bringing into this action all of the persons named in paragraph VIII of this affidavit as parties defendant herein and directing that a second supplemental summons issue to said defendants so brought in; and that plaintiff have leave to file and serve said second supplemental summons and a second amended complaint and to file an amended notice of the pendency of this action, all of same being amended by striking out the names of the parties defendant first above named by correcting the names of the parties defendant secondly above named; by adding the names of the persons thirdly above named as parties defendant in the caption thereof, and by correcting the twelfth paragraph of said amended complaint so that same shall read : "Twelfth: That the People of the State of New York is made a party defendant herein because of the fact that the transfer tax upon the estates of John Reynolds, James Rogers, Lizzie Rogers Malloy, Rosetta Burbage, Elizabeth O'Connor and Thomas Gray are unpaid and for no other reason. " The said John Reynolds died testate on April 8, 1913, a resi- 886 Bradbury's lawyers' manual Affidavit on Motion to Strike out Parties and Bring in Parties dent of the City and County of New York; the heirs at law and next of kin of said John Reynolds, deceased, are Ellen Rey- nolds, Bridget Reynolds, Patrick Reynolds, Bernard Reynolds, Francis Reynolds, Katie Kane and Mary Kane. His will was proved in New York County June 25, 1913, and recorded in Liber 985 of Wills, page 66, Letters Testamentary were issued to Ellen Reynolds, a defendant herein, and his estate has not been administered. " The said James Rogers died testate in June, 1909, a resident of Drumlish, County Longford, Ireland; the heirs at law and next of kin of said James Rogers, deceased, are James Rogers, Maggie Rogers, Alexander Rogers, John Rogers, Elizabeth Rogers and Brigid Rogers. His will was proved at said Drum- hsh, Ireland, and Letters Testamentary were issued to Michael McGovern and said estate has not been administered. " The said Lizzie Rogers Mallow died intestate on February 8, 1910, a resident of Baragh, Drumlish, County Longford, Ire- land; the heirs at law and next of kin of said Lizzie Rogers Malloy, deceased, are Michael Malloy, Mary Anne Malloy, James Malloy, Patrick Malloy, Matthew Malloy, Maggie Malloy, Lizzie Malloy, Ellen Malloy and her husband, Mat- thew Malloy, and her estate has not been administered. "The said Rosetta Burbage died intestate on January 15, 1912, a resident of Greaugh, Drumlish, County Longford, Ire- land ; the heirs at law and next of kin of said Rosetta Burbage, deceased, are Mary Ann Burbage Grififin, Rosetta Burbage McGovern, Lizzie Burbage, Katie Bm-bage, Brigid Lacey, Margaret Burbage Conlon, James Burbage, John J. Burbage and her husband, Edward Burbage, and her estate has not been administered. " The said EUzabeth O'Connor died intestate in 1910 a resi- dent of the City and County of New York ; the heirs at law and next of kin of said EUzabeth O'Connor, deceased, are William P. O'Connor, Joseph O'Connor, James F. O'Connor, Laura O'Connor Monahan and Mary O'Connor Curtayne and the said estate has not been administered. " The said Thomas Gray died intestate a resident of Curra- MORTGAGES ON REAL PROPERTY 887 Affidavit on Motion to Strike out Parties and Bring in Parties bawn, Drumlish, County Longford, Ireland, on May 21, 1915; the heirs at law and next of kin of said Thomas Gray, deceased, , are Christopher Gray, Hugh Gray, Thomas Gray, ElUe Gray and his widow, Bridget Gray, and his estate has not been ad- ministered." XI. That plaintiff desires said amendments made so that said supplemental summons and amended complaint when amended shall conform with the proposed second supplemental summons and second amended complaint which are hereto annexed, without prejudice to the proceedings already had herein. XII. That the only defendants who appeared in this action and demanded service of papers are the following: Gilbert Kuh who appeared by Joseph Nemerov, Esq., his attorney. Ellen Reynolds individually and as executrix of the last will and testament of John Reynolds, deceased, who appeared by Messrs. Holt, Warner & Gaillard, her attorneys. John A. McDonnell and Mary Curtayne who appeared by William L. Tierney, Esq., their attorney. XIII. That no previous application has been made for such an order or any part thereof. Sworn to before. me, this 30th day of August, 1915. (Signature and title of officer.) Henry B. Hammond. Bradbury's lawyers' manual Order Striking out Parties and Bringing in Parties FORM NO. 495 Order Striking out Parties, Bringing in Parties and Correcting Names of Parties At a Special Term, Part I, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the 7th day of September, 1915. Present : Hon. Clarence J. Shearn, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Ellen Reynolds, individually and as Executrix of the Last Will and Tes- tament of John Reynolds, deceased; Gilbert Kuh; Edward Haughey; George J. Mullaney and Frances MuLLANEY, his wife; Mary Ann Rogers McCabe, and others. Defendants. On the summons and complaint on file in this action, on the order bringing into this action additional parties and giving plaintiff leave to file and serve an amended complaint, on the supplemental summons and amended complaint on file in this action, and on reading and filing the affidavit of Henry B. Ham- mond, verified the 30th day of August, 1915, and on all other papers and proceedings herein, and on reading and fifing the notice of this motion with proof of due service thereof on Joseph Nomerov, Esq., attorney for the defendant Gilbert Kuh, Holt, Warner & Gaillard, attorneys for the defendant Ellen Reynolds, individually and as executrix of the Last Will and Testament of John Reynolds, deceased, and William L. Tierney, Esq., attorney for the defendants John A. McDonnell MORTGAGES ON REAL PROPERTY 889 Order Striking out Parties and Biinging in Parties and Mary Curtayne, the only parties entitled to such notice, and on motion of R. & E. J. O'Gorman, attorneys for the plaintiff herein, it is Ordered that Katie MoUoy, Rosetta Reynolds, Jane Bur- bage, the name "Jane" being fictitious, her first name being unknown to plaintiff; Jane McDonnell, the name "Jane" being fictitious, her first name being unknown to plaintiff; Jane Gray, the name "Jane" being fictitious, her first name being unknown to plaintiff; Thomas Gray, Jane McDonnell, the name "Jane" being fictitious, her first name being un- known to plaintiff; Mary McDonnell, the name "Mary" being fictitious, her first name being unknown to plaintiff; Sarah McDonnell, the name "Sarah" being fictitious, her first name being unknown to plaintiff; James Fitzgan, Mary Fitzgan, Michael Brennan, Margaret Brennan, John Dinally, Mary Dinally, Mary Anderson, Mary Agnes, Perie Baldo, Giasomo Carnerallo and Charlotte A. McDonnell be stricken out as parties defendant in this action, and it is further Ordered that in all future proceedings had in this action the defendants Brigid Lacey, Mary Shanley Burbage, Winifred O'Connor, Wilham P. O'Connor, James F. O'Connor, Mar- garet McDonnell MuUaney, Mary Gray Wenzel, Thomas J. Gray, Daniel L. Gray, Bridget Gray, Bridget Kilbride Mc- Donnell, Sarah Feeney McDonnell, Alice McDonnell, Alex- ander J. McDonnell, Katherine McDonnell and Lawyers' Title and Trust Company be described and referred to under their correct names, instead of under the names stated in the amended complaint, and it is further Ordered that Maggie Gray Abraham; Jane McDonnell, wife of Patrick A. McDonnell, the name "Jane" being ficti- tious, her first name being unknown to plaintiff; John Mc- Donnell; James F. McDonnell, Robert E. McDonnell and Peter L. McDonnell, as Executors of and Trustees under the last Will and Testament of Peter McDonnell, deceased; Francis P. R. McDonnell, Robert McDonnell, John McDonnell, James McDonnell, Peter McDonnell, Lawrence McDonnell, Margaret McDonnell, Anna McDonnell, Katherine McDon- 890 BRADBURY'S LAWYERS' MANUAL Order Striking out Parties and Bringing in Parties nell, Annette Morgan, Alfred Morgan, Peter Morgan, Charlotte Morgan, Martha Morgan, Thomas Gray, Hugh Gray, Chris- topher Gray, Ellie Gray; Michael McGovern, as Executor of the Last Will and Testament of James Rogers, deceased; New York Telephone Company, Patrick Murphy and Richard Bennett be and they hereby are brought into this action as parties defendant, and that a second supplemental summons issue directed to said defendants so brought in, and that plain- tiff have leave to file and serve said second supplemental siun- mons and a second amended complaint, and to file an amended notice of the pendency of this action, all of same being amended by striking out the names of the defendants first above named, by correcting the names of the parties defendant secondly above named, by adding the names of the persons thirdly above named as parties defendant in the caption thereof, and by correcting the twelfth paragraph of said amended com- plaint so that same shall read: "Twelfth: That the People of the State of New York is made a party defendant herein because of the fact that the transfer tax upon the estates of John Reynolds, James Rogers, Lizzie Rogers Malloy, Rosetta Burbage, Elizabeth O'Connor and Thomas Gray are unpaid and for no other reason. " The said John Reynolds died testate on April 8, 1913, a resident of the City and County of New York; the heirs at law and next of kin of said John Reynolds, deceased, are Ellen Reynolds, Bridget Reynolds, Patrick Reynolds, Bernard Reynolds, Francis Reynolds, Katie Kane and Mary Kane. His will was proved in New York County June 25, 1913, and recorded in Liber 985 of Wills, page 66. Letters Testamentary were issued to Ellen Reynolds, a defendant herein, and his estate has not been administered. " The said James Rogers died testate in June, 1909, a resident of Drumlish, County Longford, Ireland; the heirs at law and next of kin of said James Rogers, deceased, are James Rogers, Maggie Rogers, Alexander Rogers, John Rogers, Elizabeth Rogers and Brigid Rogers. His will was proved at said Drumlish, Ireland, and Letters Testamentary were issued to MORTGAGES ON REAL PROPERTY 891 Order Striking out Patties and Bringing in Parties Michael McGovern and said estate has not been adminis- tered. " The said Lizzie Rogers Malloy died intestate on February 8, 1910, a resident of Baragh, DrumUsh, County Longford, Ire- land; the heirs at law and next of kin of said Lizzie Rogers Malloy, deceased, are Michael Malloy, Mary Anne Malloy, James Malloy, Patrick Malloy, Matthew Malloy, Maggie Malloy, Lizzie Malloy, Ellen Malloy and her husband, Mat- thew Malloy, and her estate has not been administered. " The said Rosetta Burbage died intestate on January 15, 1912, a resident of Greaugh, Drumhsh, County Longford, Ireland; the heirs at law and next of kin of said Rosetta Bur- bage, deceased, are Mary Ann Burbage Griffin, Rosetta Burbage McGovern, Lizzie Burbage, Katie Burbage, Brigid Lacey, Margaret Burbage Conlon, James Burbage, John J. Burbage and her husband, Edward Burbage, and her estate has not been administered. " The said EUzabeth O'Connor died intestate in 1910 a resi- dent of the City and County of New York; the heirs at law and next of kin of said Elizabeth O'Connor, deceased, are WilUam P. O'Connor, Joseph O'Connor, James F. O'Connor, Laura O'Connor Monahan and Mary O'Connor Curtayne and the said estate has not been administered. " The said Thomas Gray died intestate a resident of Curra- bawn, Drumhsh, County Longford, Ireland, on May 21, 1915; the heirs at law and next of kin of said Thomas Gray, deceased, are Christopher Gray, Hugh Gray, Thomas Gray, EUie Gray and his widow, Bridget Gray, and his estate has not been administered." And that said amendments be made so as to conform said supplemental summons and amended complaint with the proposed second supplemental summons and second amended complaint hereto annexed, without prejudice to the proceed- ings already had herein. Enter, C. J. S., J. s. c. 892 Affidavit on Motion to Revive Action FORM NO. 496 Affidavit on Motion to Revive Action as Against Representatives of Deceased Party ; to Bring in New Parties ; to Strike out Names of Parties, and to Correct Names of Parties Sued by Fictitious Names (Title of original action) State of New York ss * County of New York Henry B. Hammond, being duly sworn, deposes and says, that he is an attorney at law in the office of R. & E. J. O'Gor- man, the attorneys for the plaintiff in this action, and has had charge of said action since its commencement. That this action was brought to foreclose a mortgage upon real property situated in the County of New York and that all of the defendants have been personally served or have appeared therein and they are all now in default. That on the 19th day of April, 1910, Clare M. Knoedler, the plaintiff in this action, died in the County of New York, and thereafter on the 29th day of April, 1910, Letters of Adminis- tration upon her estate were granted by the Surrogate of the County of New York to Edmond L. Knoedler. That the defendant named herein as Anna M. E. Luhrs is not a necessary party to this action, she having conveyed all her interest in the mortgaged premises sought to be fore- closed herein, prior to the commencement of this action. That said defendant was made a party because she was claimed to be liable for any deficiency that might remain after foreclosure and sale. That she has not been served with a summons, nor has she appeared herein, and plaintiff hereby waives any right to judgment for deficiency against her in this action. That since the commencement of this action, deponent has ascertained that the real name of the defendant, the wife of Louis W. Wehdebrock, is Rose A. Wehdebrock, and not MORTGAGES ON REAL PROPERTY 893 Affidavit on Motion to Revive Action "Mary," as stated in the caption of the summons and com- plaint. That since the commencement of this action, deponent has ascertained from an examination of the records of the County Clerk's office in the County of New York, that prior to the com- mencement of this action, a certain judgment was obtained by one John F. Schroeder against the defendant, Louis Wehde- brock, and a certain other judgment was obtained by one H. B. Kirk & Company against said defendant, Louis Wehdebrock. That said judgments are general liens on the premises being foreclosed in this action, and said John F. Schroeder and H. B. Kirk & Company are necessary and proper parties defendant in this action. That the only defendants who have appeared in this action are the People .of the State of New York who appeared by Hon. Edward R. O'Malley, Attorney General, and waived service of all papers herein, except amended complaint, notice of sale and surplus money proceedings; Samuel A. Bossert who appeared by Herman C. Kudlich, his attorney, and demanded service of all papers; Emma W. Wehdebrock who appeared by Forster, Hotaling & Klenke, her attorneys, and demanded service of all papers; Louis W. Wehdebrock, individually and as executor of the Last Will and Testament of Christian Wehde- brock, deceased, and Rose Wehdebrock, his wife, who appeared by McLaughlin, Russell, Coe & Sprague, their attorneys, and demanded service of all papers. That deponent desires to obtain an order continuing this action in the name of Edmond L. Knoedler as Administrator of the goods, chattels and credits of Clare M. Knoedler, de- ceased, as plaintiff, and amending the summons herein accord- ingly and further amending said summons by striking out the name of Anna M. E. Luhrs and by substituting in place of Mary Wehdebrock, wife of Louis W. Wehdebrock (the name "Mary" being fictitious, her true first name being unknown to plaintiff) the name, Rose A. Wehdebrock and bringing into this action as parties defendant herein, the said John F. Schroeder and H. B. Kirk & Company, and directing that a supplemental 894 Bradbury's lawyers' manual Affidavit on Motion to Revive Action summons issue, directed to each of them; and that plaintiff have leave to file and serve an amended complaint, amended by substituting the name of Edmond L. Knoedler as Adminis- trator of the goods, chattels and credits of Clare M. Knoedler, deceased, in place of the original plaintiff, by striking out the name of Aima M. E. Luhrs as a defendant, wherever the same appears in said complaint, by substituting the name "Rose A. Wehdebrock" in place of the name "Mary Wehdebrock," wife of Louis W. Wehdebrock, the name "Mary" being ficti- tious, her true first name being unknown to plaintiff, wherever said name appears in said complaint, by adding the above- named John F. Schroeder and H. B. Kirk & Company as par- ties defendant, in the caption of said complaint, and further amended so as to conform with the proposed amended com- plaint, which is hereto annexed, without prejudice to the pro- ceedings already had herein. That no previous application has been made for such an order or any part thereof. Sworn to before me, this 1 Henry B. Hammond. 20th day of June, 1910. J (Signature and title of officer.) MORTGAGES ON REAL PROPERTY 895 Order Reviving Action Against Representatives of Deceased Party FORM NO. 497 Order Reviving Action Against Representatives of Deceased Party; Bringing in New Parties; Striking out Parties, and Correcting Names of Parties Sued by Fictitious Names ^ At a Special Term, Part II of the New York Supreme Court held in and for the County of New York at the County Court- house therein, on the 21st day of June, 1910. Present: Hon. Leonard A. Giegerich, Justice. Clare M. Knoedler, Plaintiff, against Anna M. E. Luhks, Emma Wehde- BROCK, Lotris W. Wehdebrock, in- dividually and as Executor of the Last Will and Testament of Chris- tian Wehdebrock, deceased, Mary Wehdebrock, wife of Louis W. Wehdebrock, the name "Mary" being fictitious, her true first name being unknown to plaintiff, The People of the State of New York, Carl Roedelsperger, Louis Horn, Thomas J. Ward, Leon Zirke, Max R. Kirshner, Adam Stein and Samuel A. Bossert, Defendants. On the summons and complaint on file in this action, and on reading and filing the affidavit of Henry B. Hammond, verified ' As this order was made on consent it was made at Special Term, Part 2. If it had been made on a regular notice of motion it would have been made at Special Term, Part 1. The recitals in the order also would have been appropriate to an order on a litigated motion instead of reciting the consent of the parties. Attached to the motion papers were the proposed supplemental summons and amended complaint. 896 Bradbury's lawyers' manual Order Reviving Action Against Representatives of Deceaaed Party the 20th day of June, 1910, showing the death of Clare M. Knoedler, the plaintiff in the above-entitled action, and the granting of Letters of Administration upon her Estate by the Surrogate of the County of New York to Edmond L. Knoedler, and the annexed consent of Herman C. Kudlich, Esq., attorney for the defendant Samuel A. Bossert, Messrs. Forster, Hotaling & Klenke, Attorneys for the defendant Emma Wehdebrock, and Messrs. MacLaughlin, Russell, Coe & Sprague, Attorneys for the defendants Louis W. Wehdebrock, individually and as Executor, and Rose A. Wehdebrock, dated the 20th day of June 1910; and on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is Ordered, that this action be and the same is hereby contin- ued in the name of the said Edmond L. Knoedler, as admin- istrator of the goods, chattels and credits of Clare M. Knoedler, deceased, as plaintiff, and that the said administrator be and he hereby is substituted as plaintiff in the place and stead of the said Clare M. Knoedler, deceased, and that such substitution and continuance be without prejudice to any of the proceedings already had in this action; and it is further Ordered, that the smrmions and complaint and all proceed- ings in this action be amended, by substituting the name of the said Edmond L. Knoedler as Administrator of the goods, chattels and credits of Clare M. Knoedler, deceased, as plaintiff, in place of the said Clare M. Knoedler wherever the same appears, by striking out the name of Anna M. E. Luhrs as defendant, wherever the same appears, by substituting the name, "Rose A. Wehdebrock" for the name "Mary Wehde- brock " (the name "Mary " being fictitious, her true first name being unknown to plaintiff) wherever said name appears, and by adding John F. Schroeder and H. B. Kirk & Company as parties defendant in the caption of said complaint and that said amendments be made without prejudice to the proceedings had herein; and it is fiu-ther Ordered, that John F. Schroeder and H. B. Kirk & Com- pany be, and they hereby are brought into this action as par- ties defendant, and that a supplemental summons herein issue. MORTGAGES ON REAL PROPERTY 897 Affidavit of Regularity directed to said defendants so brought in, requiring them to answer the amended complaint in this action and that the plaintiff have leave to file and serve an amended complaint, amended as herein ordered and as indicated by the proposed amended complaint, hereto annexed, without prejudice to the proceedings had herein. Enter, L. A. G., J. S. C. We consent to the making and entry of the foregoing order. Dated, New York, June 20th, 1910. {Signatures of consenting attorneys.) FORM NO, 498 Affidavit of Regularity (Title of Action) State of New York County of New York Henry B. Hammond, being duly sworn, deposes and says: That he is an attorney in the office of R. & E. J. O'Gorman, the attorneys for the plaintiff herein, and has charge of this action. That this action was brought to foreclose a mortgage upon real property situated in the County of New York, in the City of New York, and was commenced by the service of a summons upon the defendant Moses Packard on the 3d day of June, 1912. That the whole amount of the mortgage to foreclose which this action was brought is due and payable. The smnmons and complaint herein was filed in the office of the Clerk of the County of New York on the 12th day of May, 1912, and a notice of pendency of action containing correctly and truly all particulars required by law to be stated in such notice, was on May 22d, 1912, filed in the office of the said Clerk of the County of New York. Since the filing of said no- 898 Bradbury's lawyers' manual Affidavit of Regularity tice of pendency of action the complaint herein has not been amended in any manner whatsoever. Each and all of the defendants herein have been duly served with the summons herein, or have duly appeared by their respective attorneys, except the defendant the city of New York, as will more fully appear by the affidavits of service filed in the office of the Clerk of the County of New York, on the 6th day of June, 1912, and the notices of appearance hereto annexed. The following defendants were personally served with the summons and a copy of the complaint herein, within the State of New York, as follows: Moses Packard on June 3d, 1912; Conrad Becker on June 4, 1912; and Myron Straus, sued as Myron Strauss, on June 5, 1912. The following defendants and no others have appeared herein : The defendants Bernandina Gorgers individually and as Trustee, &c., Elizabeth Gorgers, and Bernandina Maroney by John H. Rogan, Esq., their attorney, who demanded service of all papers in this action. On the 10th day of June, 1912, an order was entered herein, substituting Messrs. Rabe & Keller as attorneys for said defendants in the place and stead of John H. Rogan. On the 12th day of June, 1912, an order was en- tered herein, substituting Prosper R. Ferrari, Esq., as attorney for the defendant Bernandina Gorgers individually and as trustee, &c. On the 26th day of November, 1913, an order was entered herein substituting Messrs. Greenthal & Greenthal as attorneys for said defendant Bernandina Gorgers in the place and stead of Prosper R. Ferrari; The defendant, Emilie Pfaff, as executrix of the last will and testament of Franz F. Pfaff, deceased, by Frank Thorn, Esq., her attorney, who demanded service of a copy of the complaint and all other papers, which notice of appearance is hereto annexed; The defendant Myron Straus by Walter H. Cragg, Esq., who demanded service- of copy of all papers, which notice of appearance is hereto annexed; MORTGAGES ON REAL PROPERTY 899 Affidavit of Regularity The defendants Nathan J. Packard and Moses Packard co-partners doing business under the firm name of Packard & Company, by JuHus D. Tobias, Esq., who waived service of all papers and of notices of all proceedings except notice of sale and of proceedings to obtain surplus moneys, which notice of appearance is hereto annexed. No defendant herein is an infant and none of said defendants who have not appeared by attorney, is an absentee. None of the defendants have answered or demurred to the complaint except the defendant Bernandina Gorgers individ- ually. That the time to answer or demur has expired as to all the defendants. This action was noticed for trial on the first Monday of November, 1913, on the issues raised by the answer interposed by the defendant Bernandina Gorgers individually which an- swer was filed in the office of the Clerk of the County of New York on the 13th day of June, 1912. That thereafter and on the 4th day of December, 1913, this action was tried before Mr. Justice James A. Blanchard at Special Term, Part 6 of this Court, and at the termination of said trial he directed judgment for the plaintiff, and also granted a motion made by the plaintiff to strike out the City of New York as a party defendant herein, said defendant not having been served and not having appeared in this action and not being a necessary or proper party defendant therein. That all proceedings in this action have been regular and in accordance with statute and the rules and practice of this Court. Sworn to before me, this 1 Henry B. Hammond. 8th day of December, 1913. j {Signature and title of officer.) 900 BRADBURY'S lAWYERS' MANUAL Notice of Motion for Judgment and Reference to Compute FORM NO. 499 Notice of Motion for Judgment, Reference to Compute and Amend- ing Names of Parties {Title of Original Action) Please take notice that on the summons and complaint on file in this action, on the orders giving leave to file and serve a supplemental summons and amended complaint and a second supplemental summons and second amended complaint, on the said supplemental sxmimons and amended complaint, the second supplemental summons and second amended complaint, on the affidavits of service and notices of appearance filed in the office of the Clerk of the County of New York, on the affidavit of Henry B. Hammond, verffied August 24, 1916, a copy of which is herewith served upon you, and on all other papers and proceedings herein, a motion will be made at a Special Term, Part I of this court, to be held at the County Courthouse, in the Borough of Manhattan^ in the City and County of New York, on the 31st day of August, 1916, at ten thirty o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for judgment for the relief demanded in the complaint and for an order amending all proceedings herein as asked for in said affidavit of Henry B. Hammond, and referring it to some suitable person to compute the amount due to the plaintiff for principal and interest and for premiums of fire insurance, on the bond and mortgage set forth in the complaint. You WILL FURTHER TAKE NOTICE that an order, a copy of which is hereto annexed, will be submitted for signature to the Justice of this Court then presiding at said Special Term, Part I, at his Chambers in the County Courthouse, in the Borough of Manhattan, City of New York, on the 31st day of August, 1916, at ten thirty o'clock in the forenoon. Dated, August 24, 1916. Yours, etc., {Signature and post office address of plaintiff's attorneys.) To: {All attorneys who have appeared in the action.) MORTGAGES ON REAL PROPERTi" 901 Affidavit of Regularity on Motion for Judgment FORM NO. 500 Affidavit of Regularity on Motion for Judgment, Reference to Compute and to Correct Names {Title of Action) State of New York ] County of New York] Henry B. Hammond, being duly sworn, deposes and says: That he is an attorney in the office of R. & E. J. O'Gorman, the attorneys for the plaintiff in this action, which is brought to foreclose a mortgage upon real property situated in the Borough of Manhattan, in the City and County of New York, which mortgage is recorded in the Office of the Register of the County of New York, and that the whole principal siun secured by said mortgage is now due and payable. This action was commenced by the service of a summons and complaint on Mary Cashn O'Beirne on the 12th day of August, 1915. The summons and complaint herein was filed in the office of the Clerk of the County of New York on the 20th day of January, 1916, and notices of the pendency of this action containing correctly and truly all particulars required by law to be stated in such notices were filed in the office of said Clerk of the County of New York on the 25th day of January, 1916, and the 14th day of March, 1916. Since the fiUng of the last of said notices the complaint herein has not been amended in any manner whatsoever. On the 20th day of January, 1916, an order was made and entered herein striking out parties defendant, bringing in additional parties defendant, directing the issuance of a sup- plemental summons and giving leave to file and serve an amended complaint, together with a notice of the pendency of this action. That said supplemental summons and amended complaint was filed in the office of the Clerk of the County of New York on the 25th day of January, 1916. 902 Bradbury's lawyers' manual Affidavit of Regularity on Motion for Judgment On the 10th day of March, 1916, an order was made and entered herein bringing in additional parties defendant, direct- ing the issuance of a second supplemental summons, and giving plaintiff leave to file a second amended complaint, together with an amended notice of the pendency of this action. That said second supplemental suinmons and second amended complaint was filed in the office of the Clerk of the County of New York on the 14th day of March, 1916. Each and all of the defendants herein have been duly served with the summons, the supplemental summons or the second supplemental summions herein, or have duly appeared by their respective attorneys, except the defendants Mary Caslin O'Beirne and James O'Beirne, who were stricken out as par- ties by the order first above mentioned, as will more fully appear by the affidavits of service and the notices of appear- ance filed in the office of the Clerk of the County of New York on January 29, 1916, February 2, 1916, March 21, 1916, April 4 and April 8, 1916. The following defendants were personally served with the summons and a copy of the complaint within the State of New York as follows: Luke D. Stapleton, on October 15, 1915, George O'Beirne, on January 26, 1916. The following defendants were personally served with the supplemental summons and amended complaint within the State of New York, as follows: The People of the State of New York, on January 25, 1916, George O'Beirne and Lilhe O'Beirne, as Executors of the Last WiU and Testament of Mary Caslin O'Beirne, deceased, Lillie O'Beirne, Ratia Rey- nolds, and Anawanda Garage Co., Inc., all on January 26, 1916. The following defendants were personally served with the second supplemental summons and a copy of the second amended complaint herein within the State of New York as follows: A. T. Stewart Realty Company, and ElHs Schoon- maker, doing business as E. Schoonmaker Co., on March 15, 1916; Ede Levenson and Michelin Tire Company, on March 16, 1916; James A. Carey on March 20, 1916; Brunner Manufac- turing Company on March 21, 1916; A. L. A. Manufacturing MORTGAGES ON REAL PROPERTY 903 Affidavit of Regularity on Motion for Judgment & Supply Co. on March 28, 1916; Henry Phillips, on April 3, 1916. The following defendants and no others have appeared herein : Luke D. Stapleton, who appeared by Ernest P. Seelman, his attorney, and waived service of all papers except notice of sale and of proceedings to obtain surplus moneys; North British & Mercantile Insurance Company, who appeared by Charles A. Wilson, its attorney, and waived service of all papers except notice of sale and of proceedings to obtain surplus moneys; George O'Beirne, who appeared by William L. Tierney, Esq., his attorney, and demanded service of all papers in this action; Hon. E. E. Woodbury, Attorney General, Attorney for the People of the State of New York, who waived service of all papers except amended complaint, application for judg- ment, notice of sale, referee's report of sale, and surplus money proceedings; Ede Levenson, who appeared by Joseph M. Levine, Esq., his attorney, and waived service of all papers except notice of sale and proceedings to obtain surplus moneys; Ema Svec, who appeared by Abraham Simonoff, his attorney, and waived notice of all further proceedings except notice of sale and surplus proceedings; Henry Phillips, who appeared by John B. Coleman, Esq., and demanded service of all papers in this action; A. T. Stewart Realty Company, who appeared by Hedges, Ely & Frankel, its attorneys, and waived service of all papers except notice of sale and proceedings to obtain surplus moneys; Michehn Tire Company, who appeared by Thomas W. Constable, its attorney, and waived service of all papers except notice of sale and of proceedings to obtain surplus moneys; Brunner Manufacturing Company, who appeared by Dunmore & Ferris, its attorneys, and demanded service of all papers herein. No defendant herein is an infant and none of the defendants are absentees. The time to answer the complaint has expired as to each and all said defendants, and has not been extended, and no answer or demurrer has been interposed by any defendant. 904 Bradbury's lawyers' manual Order for Reference to Compute and Correcting Names Deponent has ascertained that the correct name of the defendant Lilhe O'Beirne, sued individually and as executor, is Elizabeth V. O'Beirne, and that the correct name of the de- fendant Retia Reynolds is Rita R. Reynolds. The plaintiff asks for an order amending the summons, complaint and all proceedings had herein by correcting the names of said defendants Lillie O'Beirne, individually and as executrix, to read EUzabeth V. O'Beirne, and Retia Reynolds to read Rita R. Reynolds, without prejudice to the proceedings already had, and the plaintiff further asks for judgment for the relief demanded in the second amended complaint and for an order referring it to some suitable person as referee to ascertain and compute the amount due to the plaintiff for principal and interest and for premiums of fire insurance on the bond and mortgage set forth in the second amended complaint. Sworn to before me, this 24th 1 Henry B. Hammond. day of August, 1916. J {Signature and title of officer.) FORM NO. 501 Order for Reference to Compute and Correcting Names of Parties At a Special Term, Part I of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the 31st day of August, 1916. Present: Hon. Edward R. Finch, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against George O'Beirne and (naming all the other defendants), Defendants. On the summons and complaint on file in this action, on the order striking out parties defendant and bringing in additional MORTGAGES ON REAL PROPERTY 905 Order for Reference to Compute and Correcting Names parties defendant, directing the issuance of a supplemental summons and giving leave to file and serve an amended com- plaint, on the supplemental summons and amended com- plaint, on the order bringing into this action additional parties defendant, directing the issuance of a second supplemental summons and giving leave to file and serve a second amended complaint, on the said second supplemental summons and second amended complaint, on the notices of appearance and affidavits of service filed in the office of the Clerk of the County of New York on January 29, 1916, February 2, 1916, March 21, 1916, April 4 and April 8, 1916, and on reading and filing the affidavit of Henry B. Hammond, verified the 24th day of August, 1916, from all of which it appears that this action was brought to foreclose a moitgage on real property situated in the Borough of Manhattan, in the City and County of New York, and that the whole amount secured by said mortgage is now due and payable, and it fiu-ther appearing that each and all of the defendants have been duly served with the summons, the supplemental summons or the second supplemental sum- mons, or have appeared herein by attorney, except the defend- ants Mary Caslin O'Beirne and James O'Beirne, stricken out of this action, that the time to answer has expired as to each and all of said defendants and that no answer or demurrer has been interposed by any defendant, and that none of said de- fendants is an infant or an absentee, and it further appearing that a notice of the pendency of this action containing correctly and truly all the particulars required by law to be stated in such notice was filed in said Clerk's Office on the 14th day of March, 1916, and it further appearing that the real name of the defendant Lillie O'Beirne, sued individually and as executrix of Mary Caslin O'Beirne, deceased, is Elizabeth V. O'Beirne, and that the real name of the defendant Retia Reynolds is Rita R. Reynolds, and on reading and filing the notice of this motion, dated August 24, 1916, with proof of due service thereof on William L. Tierney, Esq., attorney for defendant George O'Beirne, Hon. E. E. Woodbury, Attorney General, Attorney for the People of the State of New York, John B. 906 Bradbury's lawyers' manual Affidavit on Motion by Plaintiff to Discontinue Action Coleman, Esq., Attorney for defendant Henry Phillips, and Messrs. Dunmore & Ferris," Attorneys for defendant Brunner Manufacturing Company, the only parties entitled to such notice. Now, on motion of R. & E. J. O'Gorman, attorneys for plaintiff, it is Ordered, that the summons, complaint and all proceedings had herein be amended by correcting the name of the defendant Lillie O'Beirne, to read Elizabeth V. O'Beirne, individually and as Executrix of the Last Will and Testament of Mary Caslin O'Beirne, deceased, and by correcting the name of the defend- ant Retia Reynolds to read Rita R. Reynolds, without prej- udice to the proceedings already had, and that this action proceed against said defendants under their correct names as so amended, and it is further Ordered, that it be referred to William Bondy, Esq., 149 Broadway, Counsellor at Law of the City of New York, to ascertain and compute the amount due to the plaintiff for principal and interest and for premiums of fire insiirance on the bond and mortgage set forth in the complaint. Enter, E. R. F., J. S. C. FORM NO. 502 Affidavit on Motion by Plaintiff to Discontinue Action (Title of Action) State or New York City and County of New York f ss: Henry B. Hammond, being duly sworn, deposes and says: That he is an attorney in the office of R. & E. J. O'Gorman, attorneys for the plaintiff in the above-entitled action. That this action was brought to foreclose a mortgage upon real property situated in the Borough of Manhattan, in the City of New York, and was commenced by service of the summons MORTGAGES ON REAL PROPERTY 907 Order of Discontinuance on Motion of Plaintiff and a copy of the complaint on the defendant Joseph Frey on the 25th day of August, 1916; that the summons and complaint herein were filed in the office of the Clerk of the County of New York on the 30th day of August, 1916, and notice of the pendency of this action was filed in said Clerk's office on the 11th day of September, 1916. That no defendant has appeared in this action, and all the defendants are in default. That the plaintiff at the request of the defendant Elena Realty Corpora- tion has consented to discontinue this action. That this ac- tion is not on the Calendar and that no previous application has been made for an order discontinuing this action or can- celling the notice of lis pendens filed herein. Sworn to before me, this 16th day of November, 1916. (Signature and title of officer.) Henry B. Hammond. FORM NO. 503 Order of Discontinuance on Motion of Plaintiff At a Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the 16th day of November, 1916. Present: Hon. Daniel F. Cohalan, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Elena Realty Corporation, Joseph Frey, Defendants. On reading and filing the annexed affidavit of Henry B. Hammond, verified the 16th day of November, 1916, and on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is Ordered that this action be and the same is hereby discon- 908 Bradbury's lawyers' manual Affidavit on Motion to Set Aside Order of Reference tinued without further costs to any party, and that the notice of pendency of this action filed in the office of the Clerk of the County of New York on the 11th day of September, 1916, be cancelled of record and the Clerk of the County of New York is hereby directed to cancel said notice of pendency of record in his office. Enter, D. F. C, J. S. C. FORM NO. 504 Affidavit on Motion to Set Aside Order of Reference and Judgment of Foreclosure and Sale to Bring in New Parties (Title of Action) State of New York City and County op New York J Henry B. Hammond, being duly sworn, deposes and says: I. That he is an attorney in the office of R. & E. J. O'Gor- man, the attorneys for the plaintiff in this action, and has charge of same. That this action is brought to foreclose a mortgage upon real property situated in the Borough of Man- hattan, in the City of New York, which mortgage is recorded in the office of the Register of the County of New York and that the whole principal smn secured by said mortgage is now due and payable. II. The summons and complaint herein was filed in the Office of the Clerk of the County of New York on November 27th, 1911, and a notice of the pendency of this action was on the same day filed in said Clerk's Office. III. That all the defendants have been duly served with the suHimons and complaint herein and none of the defendants have appeared herein. That none of the defendants are infants or absentees. IV. That upon the default of all of the defendants herein an order of reference was duly made bearing date the 4th day MORTGAGES ON REAL PROPERTY 909 Affidavit on Motion to Set Aside Order of Reference of January, 1912, and thereafter and on the 6th day of January, 1912, the usual judgment of foreclosure and sale was entered herein bearing date the 5th day of January, 1912. V. That before proceeding with the sale of the mortgaged premises under said judgment deponent learned that said judgment was defective in that certain co-owners of the equity of redemption in said mortgaged premises had not been made parties to this action. VI. That thereafter and on the 8th day of March, 1912, an action was brought by Margaret Mullaney, one of said co- owners, for a partition or sale of said mortgaged premises, and the plaintiff in this action being assured that all parties in- terested had been joined in said action for partition and that same would result within a reasonable time in a sale of said premises and the payment of plaintiff's mortgage, deferred further proceedings under its judgment. VII. That on or about the 8th day of April, 1913, the de- fendant John Reynolds died testate in and a resident of the City and County of New York. That he devised all right, title and interest he had in said premises by the terms of his Last Will and Testament to one Ellen Reynolds, whom he named as executrix therein. That said wiU was duly probated in the Surrogate's Court, New York County, and said Ellen Reynolds duly qualified as such executrix. VIII. That said action brought by said Margaret Mullaney for partition or sale of said premises not having proceeded to judgment, an action for the like purpose was thereafter brought by John A. McDonnell and Margaret McDonnell Mullaney, two of said co-owners, which action is now pending in this court. IX. That deponent has ascertained from an examination of the papers on file in the last mentioned action that there are over one hundred defendants in said action, many of whom are infants, and that many of said defendants reside in Ireland. That an order has been entered for service of the summons by publication on said nonresident defendants but that service has not been completed under said order. X. That several months have elapsed since the last step 910 BRADBURY'S LAWYERS' MANX3AL Affidavit on Motion to Set Aside Order of Reference was taken in said partition action and the plaintiff in this ac- tion having deferred its proceedings in the expectation that said premises would long since have been sold and its mortgage paid off now desires to proceed to a sale of said mortgaged premises in this action. XI. That the following named persons are necessary and proper parties defendant to this action, they being owners of the equity of redemption therein or holders of liens thereon subsequent to plaintiff's mortgage, to wit: Ellen Reynolds, individually and as Executrix of the Last Will and Testament of John Reynolds, deceased; Katie Molloy, Rosetta Reynolds, George J. Mullaney and Frances Mullaney, his wife; Mary Ann Rogers McCabe, Ellen Rogers Burbage, James Rogers, Maggie Rogers, Alexander Rogers, John Rogers, Elizabeth Rogers and Brigid Rogers, minor children of James Rogers, deceased; Alexander Rogers and Elizabeth Rogers, his wife; Margaret Rogers McNally, Matthew Malloy, husband of Lizzie Rogers Malloy, deceased; Michael Malloy, Mary Anne Malloy, James Malloy, Patrick Malloy, Matthew Malloy, Maggie Malloy, Lizzie Malloy and Ellen Malloy, minor chil- dren of Lizzie Rogers Malloy; Edward Burbage, husband of Rosetta Burbage, deceased ; Mary Ann Burbage Griffin, Rosetta Burbage McGovern, Lizzie Burbage, Katie Burbage, Brigid Burbage, Margaret Burbage Conlon, James Burbage and Jane Bm-bage, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; John J. Burbage and Annie Burbage, his wife; Mary O'Connor Curtayne, Joseph O'Connor and Jane O'Connor, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; William O'Connor and Catherine O'Connor, his wife; James O'Connor and Florence O'Connor, his wife; Laura O'Connor Monahan, John A. McDonnell and Jane McDonnell, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; Margaret Mullaney, Margaret Gray Wenvell, wife of Francis R. Wenvell and widow of James Gray; Thomas Gray, Daniel Gray and Mollie Gray, minor children of James Gray; Ellen Gray, widow of John Gray; Daniel Gray and Jane MORTGAGES ON REAL PROPERTY 911 Affidavit on Motion to Set Aside Order of Reference Gray, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; John Gray, minor; Ellen Rose Gray, minor; Lizzie Gray, minor; Mary Kate Gray, minor; and James Gray, minor; children of John Gray; Mary Ellen Gray Kenny, Mary Anne Gray McLoughlin, Bridget Gray Kennedy, Thomas Gray and Bee Gray, his wife; Nellie Gray, Bridget McDonnell, widow of James McDonnell; Mary Ellen McDonnell Dunn, Elizabeth McDonnell Whitney, Bridget McDonnell Rogers, Rosetta McDonnell, James Mc- Donnell and Jane McDonnell, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; Alexander McDonnell and Tessie McDonnell, his wife; Daniel McDonnell and Sarah McDonnell, his wife; Patrick A. Mc- Donnell, Charlotte A. McDonnell, widow of Peter McDonnell, Robert E. McDonnell and Angela McDonnell, his wife; Peter L. McDonnell and Jane McDonnell, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; James F. McDonnell and Mary McDonnell, his wife, the name "Mary" being fictitious, her first name being unknown to plaintiff; Alexander McDonnell and Annie McDonnell, his wife, the name "Annie" being fictitious, her first name being unknown to plaintiff; Hubert A. McDonnell and Sarah Mc- Donnell, his wife, the name "Sarah" being fictitious, her first name being unknown to plaintiff; Annette McDonnell Morgan, James Fitzgan and Mary Fitzgan, his wife; Michael Brennan and Margaret Brennan, his wife; John Dinally and Mary Dinally, husband and wife; Mary Anderson, Mary Agnes, the name "Mary" being fictitious, her first name being unknown to. plaintiff; Perie Baldo and Giasomo Carnerallo, The City of New York, The Tenement House Department of The City of New York, The People of the State of New York, Lawyers' Title Insurance and Trust Company, Title Guarantee and Trust Company, and all other heirs at law of Peter J. Mc- Donnell, deceased, and their husbands, wives or widows, heirs at law, devisees, legatees, executors or administrators, judg- ment creditors, assignees, grantees, trustees, trustees in bank- ruptcy, receivers, lienors and successors in interest, and their 912 bbadbury's lawyers' manual Affidavit on Motion to Set Aside Order of Reference respective husbands, wives or widows, if any, all of whom, and whose names and places of residence, except as herein stated, are unknown to plaintiff. XII. That it will be necessary in this action to vacate the order of reference and judgment and bring all of said parties into the action by supplemental summons, also to amend the complaint by making all of said persons defendants and by making said complaint conform with the proposed amended complaint hereto annexed. Wherefore deponent prays for the annexed order vacating and setting aside the order of reference made and entered herein and bearing date the 4th day of January, 1912, and the judgment of foreclosure and sale made and entered herein and bearing date the 5th day of January, 1912; bringing into this action all of the persons named in paragraph numbered XI of this affidavit as parties defendant herein and directing that a supplemental summons issue to said defendants so brought in; and that plaintiff have leave to file and serve an amended complaint, together with a notice of the pendency of this action, said complaint being amended by making aU of the aforesaid persons defendants and so as to conform with the proposed amended complaint hereto annexed, without prejudice to the proceedings had prior to the entry of said order of reference. That no previous appfication has been made for such an order or any part thereof. Sworn to before me, this 28th day of April, 1915. {Signature and title of officer.) Henry B. Hammond. MORTGAGES ON REAL PROPERTY 913 Order Setting Aside Order of Reference and Judgment of Foreclosure FORM NO. 505 Order Setting Aside Order of Reference and Judgment of Fore- closure and Sale to Bring in New Parties At a Special Term, Part II of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the 28th day of April, 1915. Present: Hon. Peter A. Hendrick, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against John Reynolds, Gilbert Kuh and Edward Haughey, Defendants. On the summons and complaint on file in this action, and on reading and filing the affidavit of Henry B. Hammond, verified April 28th, 1915, and on all other papers and pro- ceedings herein, and on motion of R. & E. J. O'Gorman, at- torneys for the plaintiff herein, it is Ordered, That the order of reference made and entered herein and bearing date the 4th day of January, 1912, and the judgment of foreclosure and sale made and entered herein on the 6th day of January, 1912, and bearing date the 5th day of January, 1912, and all proceedings had under said order and judgment, be and the same are hereby vacated and set aside, and it is further Ordered that Ellen Reynolds, individually and as Exec- utrix of the Last Will and Testament of John Reynolds, deceased; Katie MoUoy; Rosetta Reynolds; George J. Mul- laney and Frances MuUaney his wife; Mary Ann Rogers Mc- Cabe; Ellen Rogers Burbage; James Rogers; Maggie Rogers; Alexander Rogers; John Rogers; Elizabeth Rogers and Brigid 914 Bradbury's lawyers' manual Order Setting Aside Order of Reference and Judgment of Foreclosure Rogers, minor children of James Rogers, deceased; Alex- ander Rogers and Elizabeth Rogers his wife; Margaret Rogers McNally; Matthew Malloy, husband of Lizzie Rogers Malloy, deceased; Michael Malloy; Mary Anne Malloy; James Malloy; Patrick Malloy; Matthew Malloy; Maggie Malloy; Lizzie Malloy and Ellen Malloy; minor children of Lizzie Rogers Malloy; Edward Burbage, husband of Rosetta Burbage de- ceased; Mary Ann Burbage Griffin; Rosetta Burbage Mc- Govern; Lizzie Burbage; Katie Burbage; Brigid Burbage; Margaret Burbage Conlon; James Burbage and Jane Burbage his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff, John J. Burbage and Annie Burbage, his wife; Mary O'Connor Curtayne; Joseph O'Connor and Jane O'Connor, his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; William O'Connor and Catherine O'Connor his wife; James O'Connor and Florence O'Connor his wife; Laura O'Connor Monahan; John A. Mc- Donnell and Jane McDonnell his wife, the name "Jane " being fictitious, her first name being unknown to plaintiff; Margaret Mullaney; Margaret Gray Wenvell, wife of Francis R. Wenvell and widow of James Gray; Thomas Gray; Daniel Gray and Molhe Gray; minor children of James Gray; Ellen Gray; widow of John Gray; Daniel Gray and Jane Gray his wife, the name "Jane" being fictitious, her first name being un- known to plaintiff; John Gray, minor, Ellen Rose Gray, minor; Lizzie Gray, minor; Mary Kate Gray, minor, and James Gray, minor; children of John Gray; Mary Ellen Gray Kenny; Mary Anne Gray McLoughlin; Bridget Gray Kennedy; Thomas Gray and Bee Gray his wife; Nellie Gray; Bridget McDonnell, widow of James McDonnell; Mary Ellen McDonnell Dunn; Elizabeth McDonnell Whitney; Bridget McDonnell Rogers; Rosetta McDonnell; James McDonnell and Jane McDonnell his wife, the name "Jane " being fictitious, her first name being unknown to plaintiff; Alexander McDon- nell and Tessie McDonnell his wife; Daniel McDonnell and Sarah McDonnell his wife; Patrick A. McDonnell; Charlotte A. McDonnell, widow of Peter McDonnell; Robert E. McDon- MORTGAGES ON REAL PROPERTY 915 Order Setting Aside Order of Reference and Judgment of Foreclosure nell and Angela McDonnell his wife; Peter L. McDonnell and Jane McDonnell his wife, the name "Jane" being fictitious, her first name being unknown to plaintiff; Alexander McDon- nell and Annie McDonnell his wife, the name "Annie" being fictitious, her first name being unknown to plaintiff; Hubert A. McDonnell and Sarah McDonnell his wife, the name "Sa- rah" being fictitious, her first name being unknown to plain- tiff; Annette McDonnell Morgan; James Fitzgan and Mary Fitzgan his wife; Michael Brennan and Margaret Brennan, his wife; John Dinally and Mary Dinally, husband and wife; Mary Anderson; Mary Agnes, the name "Mary" being ficti- tious, her first name being unknown to plaintiff; Perie Baldo and Giasomo Carnerallo; The City of New York; The Tene- ment House Department of The City of New York; The People of the State of New York; Lawyers' Title Insurance and Trust Company; Title Guarantee and Trust Company; and all other heirs at law of Peter J. McDonnell, deceased, and their hus- bands, wives or widows, heirs at law, devisees, legatees, execu- tors or administrators, judgment creditors, assignees, grantees, trustees, trustees in bankruptcy, receivers, lienors and suc- cessors in interest, and their respective husbands, wives or widows, if any, all of whom, and whose names and places of residence, except as herein stated, are unknown to plaintiff, be and they hereby are brought into this action as parties defendant, and that a supplemental summons herein issue, directed to said defendants so brought in, requiring them to answer the amended complaint in this action, and that plain- tiff have leave to file and serve an amended complaint, together with a notice of the pendency of this action, said complaint being amended by adding the names of all of said parties so brought in in the caption of said complaint, and further amended so as to conform with the proposed amended com- plaint hereto annexed, without prejudice to the proceedings already had prior to the entry of said order of reference herein. Enter, P. A. H., J. S. C. 916 BRADBURY'S LAWYERS' MANUAL Answer that Executor as Such not Liable for Deficiency FORM NO. 506 Answer that Executor as Such not Liable for Deficiency as he Had no Power Under Will to Make Mortgage {Title of Action) The defendant, Abraham Solomon, answering the complaint alleges as follows: 1. That heretofore and on or about July 11th, 1906, Wilham Solomon died a resident of the County of New York, leaving a last will and testament which was duly admitted to probate in the Surrogates' Court of the County of New York, under which said last will and testament, the defendant Abraham Solomon was appointed executor and trustee. 2. Thereafter he duly qualified as such executor and trustee and has been acting as such since his qualification. 3. At the time of the death of said William Solomon, he was the owner of the premises described in the complaint herein and at which time the said premises were encmnbered by a mortgage for the swca of $30,000. 4. Under the terms of the said last will and testament, the real property mentioned in the complaint herein together with certain other real property belonging to the testator were conveyed to the defendant in trust upon certain uses and pur- poses. 5. No power or authority was given to the defendant under the terms of the said last will and testament to make or execute any obligation binding the trust estate nor any part of the real or personal property of which the said William Solomon died seized or possessed and which passed under the said last will and testament. 6. That the bond mentioned in the complaint herein was executed by the defendant without any right or authority given under said last will and testament and the same is not a legal or binding obligation against the said estate. MORTGAGES ON REAL PROPERTY 917 Referee's Summons 7. That said defendant is personally liable therefor and he has no objection that personal judgment be taken against him for any deficiency that may result upon the sale of the mort- gaged premises. Wherefore, defendant prays that in case judgment of foreclosure is granted herein, that the same shall be without a provision for a deficiency judgment against the defendant in his representative capacity and that the defendant in his representative capacity shall have the costs and disbursements of this action. David Steckler, Attorney for Defendant, 135 Broadway, Borough of Manhattan, New York City. [Verification.] FORM NO. 507 Referee's Summons New York Supreme Court, County of New York. The Emigrant Industrial Savings Bank, Plaintiff, against David Steigerwald, Henry Leis, August Luchow, Henry Kohla, and Rae Marcus, Defendants. By virtue of an order made and entered in the above-entitled action and bearing date the 25th day of September, 1916, I, Medbery Blanchard, the Referee appointed therein, do hereby summon you to appear at my office, No. 120 Broadway, in the Borough of Manhattan in the City of New York, on the 29th day of September, 1916, at 11 o'clock in the forenoon to attend 918 Bradbury's lawyers' manual Referee's Oath • a hearing of the matters in said action in reference before me as such Referee pursuant to said order. And hereof fail not at your peril. Dated the 26th day of September, 1916. Mbdbery Blanchard, Referee. To: {All attorneys who have appeared in the action.) UNDERWRITING To take proof of the facts and circumstances stated in the complaint and to examine the plaintiff or its agent on oath as to any payments which have been made and to ascertain and compute the amount due to the plaintiff for principal and in- terest and for premiums of fire insurance on the bond and mortgage set forth in the complaint. Medbery Blanchard, Referee. FORM NO. 508 Referee's Oath {Title of Action) State of New York City and County of New York I, Millard H. Ellison, the Referee appointed herein by order bearing date the 25th day of February, 1916, to take proof of the facts and circumstances stated in the Second Amended Complaint and to examine the plaintiff or its agent on oath, as to any payments which have been made, and to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the second amended complaint, do solemnly swear that I will faithfully and fairly determine the questions referred to me and make a just and true report according to the best of my understanding. Sworn to before me, this 1 Millard H. Ellison. 28th day of February, 1916. J {Signature and title of officer.) ss: MORTGAGES ON REAL PROPERTY 919 Referee's Report on Reference to Compute FORM NO. 509 Referee's Report on Reference to Compute {Title of Action) To the Supreme Court of the State of New York: Pursuant to an order of this court dated the 25th day of February, 1916, whereby it was referred to me to take proof of the facts and circumstances stated in the second amended complaint and to examine the plaintiff or its agent on oath as to any payments which have been made and to ascertain and com- pute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the amended complaint, I respectfully report : — I. That before proceeding in this matter I duly took and sub- scribed the oath of office as prescribed by law. II. That notice of hearing was duly given to Messrs. Holt, Warner & Gaillard, Esqs., Attorneys for Ellen Reynolds, in- dividually and as Executrix, H. I. & L. Cohen, Esqs., Attorneys for Gilbert Kuh, William L. Tierney, Esq., attorney for Mary O'Connor Curtayne, and John A. McDonnell, E. E. Wood- bury, Esq., Attorney General, Attorney for the People of the State of New York, William Himmerleich, Esq., Attorney for Maggie Gray Abrams, and Henry A. ThellussoUj Esq._, Guard- ian ad litem, as appears from the notice of hearing hereto an- nexed with proof of service thereof. III. That on the 28th day of February, 1916, at No. 115 Broadway, in the Borough of Manhattan, City of New York, I was attended by R. & E. J. O'Gorman, attorneys for the plaintiff, Henry B. Hammond of counsel. IV. That I have taken proof of the facts and circumstances stated in the second amended complaint and have examined Joseph A. Funke, Bond and Mortgage Clerk of the plaintiff, on oath as to any payments which have been made and that 920 Bradbury's lawyers' manual Referee's Report on Reference to Compute I am of the opinion and accordingly report that the facts and circumstances stated in the second amended complaint are true, that no payment has been made on account of the princi- pal of the bond and mortgage set forth in the second amended complaint and that no payment has been made on account of the interest on the said bond and mortgage, since the 1st day of January, 1911, and that said examination and proof taken by me of the facts and circumstances stated in the second amended complaint, except such of said proof as is documen- tary, is annexed to this report. V. That I have ascertained and computed the amount due to the plaintiff in this action, as aforesaid, and that the amount so due on said bond and mortgage for principal and interest up to and including the day of the date of this report is six thousand seven hundred and seventy-six and sixty-eight one hundredths dollars and that "Schedule A," hereto annexed as a part of this report, contains a statement and account of the principal and interest moneys due to the plaintiff, the period of the computation of the interest and its rate. Dated, New York, February 28th, 1916. Millard H. Ellison, Referee. SCHEDULE "A" Abstract op Documentary Evidence I. Bond, Alexander McDonnell and Peter McDonnell to the Emigrant Indus- trial Savings Bank, dated November 20th, 1883, to secure $5,500.00, pay- able November 20th, 1884, with interest at the rate of 6% per annum (since reduced to 4J^% per annum). Marked Plaintiff's Exhibit 1. II. Mortgage, Alexander McDonnell and Mary, his wife, and Peter McDonnell and Charlotte A. his wife, to the Emigrant Industrial Savings Bank, dated November 20th, 1883, recorded November 27th, 1883, in the Office of the Register of the City and County of New York, in Liber 1796 of Mortgages, page 140, to secure $5,500.00 and covering premises described in the second amended complaint herein. Marked Plaintiff's Exhibit 2. MORTGAGES ON REAL PROPERTY 921 Referee's Report on Reference to Compute Statement Principal of Bond (I) and Mortgage (II) unpaid, as stated in the second amended complaint $5,500.00 Interest thereon from January 1, 1911, to February 28, 1916, 5 years, 1 month and 27 days, at the rate of 4J^% per annum $1,276.68 16,776.68 Dated, New York, February 28, 1916. Millard H. Ellison, Beferee. New York Supreme Court, County of New York. The Emigrant Industrial Savings Bank, Plaintiff, against Ellen Reynolds, individually and as Executrix of the Last Will and Testament of John Reynolds, de- ceased, and others. Defendants. Hearing before Millard H. Ellison, Esq., Referee, at No. 115 Broadway, in the Borough of Manhattan, City of New York, on the 28th day of February, 1916, at 12 o'clock M. The Referee takes and subscribes his oath of office. Appearances: R. & E. J. O'Gorman, attorneys for plaintiff, Henry B. Hammond, of counsel. • Henry A. Thellusson, Esq., Guardian ad litem for the infant defendants. WiUiam D. Gaillard, Esq., attorney for Ellen Reynolds individually and as Executrix. Counsel for plaintiff offers in evidence Bond of Alexander McDonnell and Peter McDonnell, to The Emigrant Industrial Savings Bank, dated November 20th, 1883, conditioned for the payment of $5,500 on November 20th, 1884, with interest at the rate of six per centum per annum, acknowledged Novem- ber 24th, 1883. 922 BRADBURY'S LAWYERS' MANUAL Referee's Report on Reference to Compute Received in evidence and marked Plaintiff's Exhibit 1. Counsel for plaintiff offers in evidence Mortgage made by- Alexander McDonnell and Mary, his wife, and Peter Mc- Donnell and Charlotte A., his wife, to The Emigrant Industrial Savings Bank, dated November 20th, 1883, acknowledged November 24th, 1883, and recorded in the office of the Regis- ter of the City and County of New York, on November 27th, 1883, at 1 o'clock and 16 minutes, P. M., ih Liber 1796 of Mortgages, page 140. Received in evidence and marked Plaintiff's Exhibit 2. Counsel for plaintiff offers in evidence Chapter 290, Laws 1850, Chapter 278, Laws of 1851, Chapter 409, Laws of 1882, and Chapter 689, Laws of 1892, of the State of New York. Joseph A. Funke, called as a witness, being duly sworn, and examined by the Referee, testified as follows: Q. What position do you occupy in The Emigrant Indus- trial Savings Bank? A. I am Bond and Mortgage Clerk of The Emigrant Industrial Savings Bank. Q. Are you familiar with the accounts kept by The Emigrant Industrial Savings Bank of payments made on account of principal and interest moneys due on bonds and mortgages held by the Bank? A. I am. It is my duty to receive such payments and see that they are properly entered. Exhibit 1 shown witness. Q. What, if any, payment has been made on accoxmt of the principal of that bond? A. No pajrment has been made on account of the principal of that bond. The entire principal sum of five thousand five hundred dollars is due and un- paid. Q. AVhat payments have been made on account of the in- terest on that bond? A. Interest on that bond has been paid up to the first day of January, 1911, and no interest has been paid since then. Consequently there is now due on that bond interest from the first day of January, 1911, at the rate of four and one-half per centum per annum, which amounts to $1,276.68. Q. Has any other action been brought for the recovery of MORTGAGES ON REAL PROPERTY 923 Notice of Filing of Referee's Report and of Motion for Final Judgment the money secured by this bond and mortgage or any part of it? A. No, sir. Sworn to before me, this 28th 1 Joseph A. Funke. day of February, 1916. J Millard H. Ellison, Referee. FORM NO. 510 Notice of Filing of Referee's Report and of Motion for Final Judg- ment of Foreclosure and Sale {Title of Action) Please take notice that the report of John Gruenberg, Referee, to whom it was referred by an order of this court to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the amended complaint, was on the 3d day of January, 1917, filed in the office of the Clerk of the County of New York, at the County Courthouse, in the Borough of Manhattan, City of New York. You will further take notice that on the summons and complaint on file in this action, on the order giving leave to file and serve a supplemental summons and amended com- plaint, on the said supplemental summons and amended com- plaint, on the affidavits of service and notices of appearance filed in the office of the Clerk of the County of New York, and upon all proceedings had herein, and upon the order of refer- ence made and entered herein dated the 27th day of Decem- ber, 1916, and the affidavit of Henry B. Hammond, verified December 20, 1916, and all' other papers on which said order was granted, and upon the report of said Referee, we will apply to this Court, at Special Term, Part I, to be held at the County Courthouse, in the Borough of Manhattan, in the City of New York, on the 9th day of January, 1917, at ten thirty o'clock in the forenoon of that day or as soon thereafter as counsel can be heard, for an order confirming said report of 924 Bradbury's lawyers' manual Decision and Findings After Trial said Referee and for the relief demanded in the complaint, and for the usual judgment of foreclosure and sale, and for an extra allowance in addition to taxable costs, and for such other relief as may be just. You WILL FURTHER TAKE NOTICE that a judgment, a copy of which is hereto annexed, will be submitted for signature to the Justice presiding at said Special Term, Part I, of this Court at his Chambers in the County Com-thouse in the Bor- ough of Manhattan, in the City of New York, on the 9th day of January, 1917, at ten thirty o'clock in the forenoon. Dated, New York, January 3, 1917. Yoiirs, etc., R. & E. J. O'GORMAN, Plaintiff's Attorneys, OfHce and Post Office Address, 51 Chambers Street, Borough of Manhattan, City of New York. To: William F. Clare, Esq., Attorney for Defendant, Mary E. Reisig. Goldsmith, Rosenthal, Mork & Baxjm, Attorneys for Defendant, D. H. Jackson Co. E. E. Woodbury, Esq., Attorney General, Attorney for Defendant, The People of the State of New York. FORM NO. 511 Decision and Findings After Trial {Title of Action) This action having duly come on to be heard at a Special Term, Part VI, of this Court, on the 4th day of December, 191.3, and it appearing to the satisfaction of the court that all of the defendants herein, except the defendant the City of MORTGAGES ON REAL PROPERTY 925 Decision and Findings After Trial New York have been duly personally served with the sunamons and complaint or have duly appeared herein and that all of said defendants have made default in pleading, except the defendant Bernandina Gorgers, who has served an answer, and the issues raised by said answer having been duly tried and submitted, and counsel for said last mentioned defendant and for the plaintiff, having been duly heard and as to the defendants in default, the court having taken proof of the facts and circumstances set forth in the complaint and having examined the plaintiff's agent on oath respecting any payments to the plaintiff or to anyone for its use on account of its de- mand or upon the bond and mortgage to foreclose which this action was brought and having taken proof of the amount due to the plaintiff upon the said bond and mortgage, and due deliberation having been had, I do find and decide as follows: FINDINGS OF FACT First: That the plaintiff is a corporation created by and existing under the laws of the State of New York. Second: That the defendant Bernandina Gorgers, individu- ally and as trustee under and by virtue of a trust deed bearing date the tenth day of July, 1890, between Robert Stewart and said Bernandina Gorgers, said deed being recorded in the office of the Register of the City and County of New York, on July 10, 1890 ill Liber 2346 of Conveyances, page 101, for the purpose of securing to the plaintiff payment of the sum of five thousand five hundred dollars with interest thereon on or about the 28th day of January, 1901, executed and delivered to the plaintiff her certain bond bearing date on that date, sealed with her seal, whereby she bound herself, her successors, heirs, executors and administrators in the sum of eleven thousand dollars upon condition that the said obligation should be void, if she, her successors, heirs, executors or administrators should pay the plaintiff the said sum of five thousand five hundred dollars on the 28th day of January, 1902, and also interest on the same at and after the rate of four and one-half per centum per annum. 926 BRADBURY'S LAWYERS' MANUAL Decision and Findings After Trial Third: That as collateral security for the payment of the said indebtedness, the said Bernandina Gorgers, individually and as trustee under and by virtue of said trust deed on the same day duly executed, acknowledged and delivered to the plaintiff a certain mortgage whereby she granted, bargained and sold to the plaintiff certain premises situated in the Bor- ough of Manhattan in the City of New York and which were described in said mortgage as follows: {Description of -prop- erty) . Subject, however, to the terms, covenants and conditions of a certain agreement in writing dated January 2, 1888, by and between John B. Gorgers and John Brennan, relating to the use of the easterly wall of the building on said premises as a party wall. That said mortgage was made, executed and delivered under and in pursuance of an order of the Supreme Court of the State of New York entitled "In the Matter of the Application of Bernandina Gorgers as Trustee of an expressed trust of real property for leave to mortgage the fee" duly made on the 15th day of January, 1901, and entered on the 16th day of January, 1901. That said mortgage was made subject to the covenants against nuisances and restrictions as to the character of build- ings, if any, contained in early deeds. Fourth : That the said mortgage contained the same condi- tion as the said bond, and in case of default in the payment of the said sum of money or the interest that might grow due thereon, the said plaintiff was thereby empowered to sell the said mortgaged premises according to law. Fifth: That the said mortgage contained the following provision : "And it is expressly agreed that the said party of the first part (being the said defendant Bernandina Gorgers, individu- ally and as trustee, as aforesaid) will keep the buildings on said premises insured against loss by fire for the benefit of the mortgagee (being the plaintiff herein)." Sixth: That the said mortgage was duly recorded in the MORTGAGES ON REAL PROPERTY 927 Decision and Findings After Trial office of the Register of the County of New York on the 29th day of January, 1901, at 45 minutes after three o'clock in the afternoon in block series mortgages, section 4, Liber 110, page 284, and indexed under block number 1073, on the land map of the city of New York. Seventh: That the said defendant Bernandina Gorgers, individually and as trustee, as aforesaid, has failed to comply with the conditions of said bond and mortgage by omitting to pay the sum of five thousand five hundred dollars, which be- came due and payable on January 28, 1902, and by omitting to keep the buildings on the premises aforesaid insured against loss by fire, and that there was on December 4, 1913, justly due to the plaintiff upon said bond and mortgage the principal sum of five thousand five hundred dollars, with interest thereon from January 1, 1911, to December 4, 1913, at the rate of 43/2% per annum, amounting to seven hundred twenty-three and ninety-five one hundredth dollars, together with the sum of twenty-three and sixty-three one-hundredth dollars, paid by plaintiff to keep the buildings on the said premises insured against loss by fire, making a total sum of six thousand two hundred forty-seven and fifty-eight one-hundredth dollars, and that no part thereof has been paid. Eighth: That no other action has been had for the re- covery of the said sum secured by the said bond and mortgage or any part thereof. Ninth: That all of the defendants, except the defendant the City of New York have or claim to have some interest in or lien upon the said mortgaged premises or some part thereof, which interest or lien, if any, is subject and subordinate to the said mortgage. Tenth: The defendant the' City of New York has not been served with the summons herein and has not appeared herein and is not a necessary or proper party defendant herein. CONCLUSIONS OF LAW First: The plaintiff is entitled to judgment that the defend- ants and each of them and all persons claiming under them 928 BRADBURY'S LAWYERS' MANUAL Decision and Findings After Trial or any of them subsequent to the conamencement of this action may be barred and foreclosed of all right, claim, lien or equity of redemption in the said mortgaged premises; that the said premises may be decreed to be sold in one parcel, subject to the covenants and restrictions and party wall agreement, afore- said, and to any state of facts which an accurate survey would show, according to law; that the moneys arising from the sale may be brought into court; that the plaintiff may be paid its costs and the usual allowance in foreclosure; that the plaintiff may be paid the amount due on the said bond and mortgage, to wit: six thousand two hundred forty-seven and fifty-eight one hundredths dollars, together with interest thereon from December 4, 1913, at the rate of 6% per annum, to the time of such payment. Second: The defendant the City of New York should be stricken out as a party herein. I order and direct that judgment be entered accordingly. Dated, December 23, 1913. James A, Blanchard, Justice of the Supreme Court oj the State of New York. MORTGAGES ON REAL PROPERTY 929 Final Judgment of Foreclosure and Sale FORM NO. 512 Final Judgment of Foreclosure and Sale At a Special Term, Part I of the New York Supreme Court of the State of New York, held in and for the County of New York at the County Courthouse therein, on the 9th day of January, 1917. Present: Hon. Daniel F. Cohalan, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Mary E. Reisig, formerly Mary E. Harrington, individually and as Executrix of the Last Will and Testament of John J. Harrington, deceased, D. H. Jackson Co., Emanuel Glauber, Sayles, Zahn Company, and The People of the State of New York, Defendants. On the summons and complaint on file in this action, on the order bringing in an additional party defendant, directing the issuance of a supplemental summons and giving leave to file and serve an amended complaint, on the supplemental sum- mons and amended complaint, on the affidavits of service filed in the Office of the Clerk of the County of New York on the 31st day of August, 1916, on the notices of appearance filed in said Clerk's Office on August 23, September 2 and Decem- ber 4, 1916, and on the affidavit of Henry B. Hammond, verified the 20th day of December, 1916, from all of which it appears that this action was brought to foreclose a mortgage oh real property situated in the Borough of Manhattan, in the 930 Bradbury's lawyers' manual P'inal Judgment of Foreclosure and Sale City and County of New York, and that the whole amount secured by said mortgage is now due and payable, and it fur- ther appearing that each and all of the defendants have been duly served with the summons or the supplemental summons or have appeared herein by attorney, that the time to answer has expired as to each and all of said defendants and that no answer or demurrer has been interposed by any defendant, and that none of said defendants is an infant or an absentee, and it further appearing that a notice of the pendency of this action • containing correctly and truly all the particulars required by law to be stated in such notice was filed in said Clerk's Office on the 22d day of November, 1916, and on the order of this court made and entered herein bearing date the 27th day of December, 1916, referring it to John Gruenberg, Esq., as Referee, to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the amended complaint, and on the report of said Referee filed herein on the 3d day of January, 1917, by which report bearing date the 3d day of January, 1917, it appears that there is due to the plaintiff for principal and interest on said bond and mortgage at the date of said report the sxma of one hundred twenty-two thousand seven hundred and thirty dollars, and on reading and filing the notice of this mo- tion dated the 3d day of January, 1917, with proof of due service thereof on William F. Clare, Esq., Attorney for the defendant, Mary E. Reisig, Goldsmith, Rosenthal, Mork & Baum,, Attorneys for the defendant, D. H. Jackson Co., and E. E. Woodbury, Esq., Attorney General, Attorney for the defendant. The People of the State of New York, the only parties entitled to such notice, Now, on motion of R. & E. J. O'Gorman, Attorneys for the plaintiff, it is Ordered, adjudged and decreed, that the said Referee's Report be and the same hereby is in all respects ratified and confirmed, and it Is Further ordered, adjudged and decreed, that the mort- gaged premises described in the complaint in this action as MOETGAGES ON REAL PROPERTY 931 Final Judgment of Foreclosure and Sale hereinafter set forth, or so much thereof as may be suflficient to discharge the said mortgage debt, the expenses of the sale, and the costs of this action as provided by Section 1626 and Sec- tion 1676 of the. Code of Civil Procedure, and which may be sold separately without material injury to the parties inter- ested, be sold at public auction at the Exchange Sales Room, now located at Nos. 14 and 16 Vesey Street, in the Borough, of Manhattan, in the City of New York, in the County of New York, by or under the direction of John Gruenberg, Esq., who is hereby appointed referee for that purpose; that the said referee give public notice of the^ time and place of such sale, according to law and the rules and practice of this court; and publish notice of such sale pursuant to Section 1678 of the Code in the New York Law Journal and the New York Commercial, daily newspapers published in the County of New York, said notice of sale to contain a description of the property to be sold to conform in all respects to the description set forth in this judgment; that the plaintiff or any other party to this action may become a purchaser on such sale; that the said referee execute to the purchaser. or purchasers on such sale a deed or deeds of the premises sold; that such referee on re- ceiving the proceeds of the sale forthwith pay therefrom the taxes, assessments and water rents which are or may become liens on the premises at the time of sale as provided in Sec- tion 1676 of the Code of Civil Procedure aforesaid;, that the said referee then deposit the balance of such proceeds of sale in New York Trust Company and thereafter make the follow- ing paymenta, and his checks drawn for such purpose shall be paid by the said depository. First: He shall pay a sum not exceeding S50.00 to the said Referee for his fees herein. Second: He shall pay advertising expenses as shown on the bills presented and certified by the said Referee to be correct, and duplicate copies of which shall be left with said depository. Third : He shall pay to the plaintiff the sum of one himdred thirty-eight and 00/100 ($138.00) dollars, adjudged to the plaintiff for its costs and disbursements in this action, with 932 Bradbury's lawyers' manual Final Judgment of Foreclosure and Sale interest thereon from the date hereof, together with an addi- tional allowance of two hundred ($200) dollars, hereby awarded to the plaintiff in addition to costs, with interest thereon from the date hereof; and also one hundred twenty-two thousand seven hundred and thirty ($122,730.00) dollars, the amount reported due as aforesaid, together with the legal interest thereon from the date of said report, or so much thereof as the said purchase money will pay of the same, and that he take a receipt therefor, and file it with the report of sale. Fourth: If such Referee intends to apply for a fiu-ther allowance for his fees, he may leave upon deposit such amount as will cover such additional allowance to await the further order of the Court thereon, after appUcation duly made. Fifth : He shall deposit the surplus money, if any, with the Chamberlain of the City of New York, within five days after he receives the same, to the credit of this action, to be drawn only on an order of this Court signed by a Justice of this Court; and it is Further ordered, adjudged and decreed, that said Ref- eree make a report of such sale and file it with the Clerk of the County of New York with all convenient speed and that the purchaser or purchasers at such sale be kt into possession on production of the Referee's deed or deeds; that if the proceeds of such sale be insufficient to pay the amount so reported due to the plaintiff with interest and costs as aforesaid, said Referee specify the amount of such deficiency in his report of sale and that the defendant Mary E. Reisig, formerly Mary E. Harring- ton, as Executrix of the Last WUl and Testament of John J. Harrington, deceased, pay the same to plaintiff, and that said plaintiff have execution therefor, and it is further Ordered, adjudged and decreed that in case the plaintiff shall become the purchaser of the premises directed to be sold as aforesaid at an amount equal to or less than the amount due it under this judgment, with costs, allowances and expenses, the payment by the plaintiff to said Referee of the sum bid by it for said premises or any portion thereof, is hereby dispensed with, and that plaintiff shall be given due credit and allowance MORTGAGES ON REAL PROPERTY 933 Final Judgment of Foreclosure and Sale by said Referee for the amount due it as aforesaid; and the plaintiff, before the deUvery of the Referee's deed to it, shall pay the Referee's fees and expenses of the sale, and the costs and allowance as above provided, and also the taxes, assess- ments and water rents, which may be a lien on said premises at the date of such sale, unless said premises are sold, subject to such taxes, assessments and water rents; and it is further Ordered, adjudged and decreed, that each and all of the defendants in this action, and all persons claiming under them or any of them after the filing of such notice of the pendency of this action, be and they are hereby forever barred and fore- closed of all right, claim, lien, title, interest and equity of re- demption in the said mortgaged premises, and each and every part thereof. The following is a description of the said mortgaged premises : (Description of property.) Enter, D. F. C, J. S. C. Wm. F. Schneider, Clerk. 934 Bradbury's lawyers' manual Bill of Costs FORM NO. 513 BiU of Costs 1 New York Supreme Court, County of New York. The Emigrant Industrial Savings Bank, , .,; Plaintiff, ■,: -> : against Agnes M. Brooker, individually and as Executrix, &c., and others, Defendants. Costs of Plaintiff. COSTS Costs before Notice of Trial: . Costs after Notice of Trial . . . Additional Defendants served (15) Trial Fee, Issue of Fact Allowance by Statute Appointment of Guardian of Infant Defendant Disbursements . Total . $ 25 15 25 30 60 10 $165 $253 DISBURSEMENTS Paid for Title Co. Search Referee's Fees Clerk's Fees on filing notice or Pendency of Action (2) . . Clerk's Fees on entering Judg- ment Affidavits and Acknowledg- ments (6) Serving Copy Summons and Complaint on 16 defend- ants Certified Copy Judgment. . . . Certified Copies Orders and Entering Typewriting (more than 10 Defts.) 29 00 00 20 40 60 25 57 51 90 43 ' This bill of costs is typical of a case where a general answer has been put in by or on behalf of an infant defendant. In such a case it is held that the plaintiff may tax costs after notice of trial and a trial fee. If, however, all the parties defaiilt and there are no infants on behalf of whom general answera are put in these two items would not be allowed. MORTGAGES ON HEAL PKOPEF/l'Y 935 Notice of Motion to Direct Referee to Sell in Separate Parcels ss: Borough of Manhattan City and County of New York Henry B. Hammond, an attorney in the office of R. & E. J. O'Gorman, the Attorneys for the plaintiff in the above-entitled action, being duly sworn, says that the foregoing disbursements have been made or necessarily incurred in this action and are reasonable in amount, and that the copies of documents or papers as charged herein were actually and necessarily ob- tained for use. Sworn to before me, this day of October, 1915. {Signature and title of officer.) Henry B. Hammond. FORM NO. 514 Notice of Motion to Direct Referee to Sell in Separate Parcels {Title of Action) Please take notice that upon the annexed affidavit of Francis J. Schnugg, verified the 20th day of May, 1907, and upon the papers and proceedings herein, the undersigned will move this Court at a Special Term, Part I thereof, to be held in and for the County of New York, at the County Courthouse, in the Borough of Manhattan, City of New York, on the 27th day of May, 1907, at 10:30 in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order directing the referee appointed herein to sell the premises mentioned and described in the mortgage to foreclose which this action was brought in separate lots or parcels, to wit, in the manners set forth and stated in the annexed affidavit and directing the said referee to advertise the said property for sale in accordance therewith and for such other and further relief in the premises as to the Court may seem just and proper. Dated, N. Y., May 29, 1907. Yours, etc., Arthur L. Fullman, Attorney for Defendant, American Brewing Company. To: {Attorneys for all parties.) 936 Bradbury's lawters' manual Affidavit on Motion to Direct Referee to Sell in Separate Parcels FORM NO. 515 Affidavit on Motion to Direct Referee to Sell in Separate Parcels (Title Same as Preceding Notice of Motion) State of New York ss * County of New York Francis J. Schnugg being duly sworn deposes and says: That he is the Treasurer of the American Brewing Company of New York, a corporation incorporated under the laws of the State of New York, and one of the defendants in the above- entitled action. That this action was brought to foreclose a mortgage on certain premises of the Northside Brewing Com- pany, located at 168th Street and Third Avenue, in the Borough of Bronx, City of New York. That decree was duly entered herein and said property has been advertised for sale pursuant to the said decree. That the said premises together with the buildings and brewery plant thereon situated were formerly owned by the American Brewing Company of New York and was sold to the Northside Brewing Company with the exception of a por- tion of said premises designated as "A" on the diagram, having a frontage on Fulton Avenue of about 87 feet and a depth exceeding 111 feet, which said portion of land was included in said action of foreclosure and is advertised for sale under said decree along with the other parcels, belonging to the Northside Brewing Company. That at the time of the sale of said property of the American Brewing Co. of New York, to said Northside Brewing Com- pany, said Northside Brewing Company executed to the Amer- ican Brewing Company a mortgage on the said premises upon which there is now due a sum exceeding $150,000 which said mortgage, however, is subsequent to the mortgage held by the plaintiff herein, and that in transfer of the said property, the American Brewing Company of New York, allowed to the MORTGAGES ON REAL PROPERTY 937 Affidavit on Motion to Direct Referee to Sell in Separate Parcels Northside Brewing Company out of the purchase price, the full amount of the mortgage herein. Deponent further says that the above property consists of several distinct and separate parcels or lots of land and build- ings and that they should be sold in such parcels and that only sufficient thereof should be sold as may be necessary to realize eneugh with which to satisfy the judgment of foreclosure in this action. That the property is advertised to be sold by the referee appointed herein in one parcel, which could but result in great injury to the American Brewing Company who is the owner of the portion of the said premises as aforesaid, and the equities thereof would be wiped out completely. That deponent has had upwards of twenty years' experience in buying, selling and improving real estate in the County of New York, Borough of Bronx, and is well acquainted with the values of properties in the said Borough and City, and more especially is well acquainted with the property herein being foreclosed and similar property in the same vicinity. That the main business being carried on in a larger part of the prem- ises is that of the manufacture of lager beer and ale. That annexed hereto is a diagram showing the property which should be sold in the following order, in order that enough might be realized to pay off the amount of the mortgage herein sought to be foreclosed and still leave buildings and land sufficient to carry on the present business for which the larger part of the premises are adapted. That the values herein given are as deponent verily believes from his experience in the real estate business as hereinabove set forth, the true values of such premises and the amounts which they would readily bring upon a sale. 1. The parcel marked "B" being 41.68 feet frontage on Fulton Avenue and 85 feet on 168th Street, forming the north- westerly corner of Fulton Avenue and 168th Street, which said parcel is worth and would undoubtedly bring upwards of 115,000. 2. Parcel "C" being the northeasterly corner of 168th Street 938 Bradbury's lawyers' manual Affidavit on Motion to Direct Referee to Sell in Separate Parcels and Third Avenue, having a frontage of about 100 feet on Third Avenue and 45 feet on 168th Street, said parcel being reasonably worth and would probably bring the sum of $50,000. 3. Parcel "D" being a plot 31 feet front on Third Avenue, by about 873/^ feet and worth at least $20,000. 4. Parcel "E" being a plot 45 feet front on Third Avenue and 60 feet in depth and worth at least the sum of $20,000. That by selling the said parcels in the manner above in- dicated, deponent verily beUeves that the parcels "B," "C" and "D" would alone bring sufficient to pay off the entire amount of the judgment herein and costs. That a sale of the premises made in the above order would result in the North- side Brewing Company retaining sufficient property to con- duct its business and would at the same time, not deprive the American Brewing Company of New York, of their property which is a part of the premises sought to be foreclosed herein. That although the said premises have been advertised to be sold, deponent is informed that an order has been made herein by the United States District Court of the Southern District of New York, restraining the said referee from selling the said premises until after the 1st day of June, 1907, and that no sale will accordingly take place until after that time. For all op which deponent asks for an order directing the referee herein to advertise and sell the said property in sep- arate parcels as hereinabove set forth, pursuant to § 1678 of the Code of Civil Procedure. Sworn to before me, this 20th 1 Francis J. Schnugg. day of May, 1907- J (Signature and title, of officer.) (Attached to the foregoing affidavit was a diagram indicating the various parcels as described in the affidavit.) MORTGAGES ON REAL PROPERTY 939 Order Directing Referee to Sell in Separate Parcels FORM NO. 516 Order Directing Referee to Sell in Separate Parcels At a Special Term, Part I, of the Supreme Court of the State of New York held in and for the County of New York at the Courthouse thereof in. the City of New York, on the 14th day of June, 1907. Present: Hon. Charles H. Truax, Justice. Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz, individually and as ex- ecutrix, etc., et cd., Defendants. A motion having been made herein for an order directing the Referee appointed herein to sell the premises mentioned and described in the judgment of foreclosure and sale, entered herein ■ on the 20th day of July, 1906, in certain separate and distinct parcels, as shown by the drawing submitted with the moving papers, and said motion having come duly on to be heard on the 29th day of May, 1907, Now upon reading and filing the notice of motion, dated May 20th, 1907, the affidavit of Francis J. Schnugg, verified the 20th day of May, 1907, and the supplemental affidavit of said Francis J. Schnugg verified the 27th day of May, 1907, submitted in behalf of the defendant, the American Brewing Company; the affidavits of Samuel Loewy, Louis Reiter and William Heddendorf, all verified the 29th day of May, 1907, submitted in behalf of a Committee of stockholders of the defendant, the North Side Brewing Company; the affidavit of Lambert S. Quackenbush verified the 27th day of May, 1907, in his own behalf; the affidavit of Arthur Gorsch, verified the 27th day of May, 1907; the affidavit of Harold C. Nathan, verified the 29th day of May, 1907, and the affidavit of Arthur 940 Bradbury's lawyers' manual Order Directing Referee to Sell in Separate Parcels Gorsch, verified the 29th day of May, 1907, submitted in be- half of the defendant, Blanche B. Neukirch, and the survey of said mortgaged premises dated May 8th, 1907, submitted in behalf of the plaintiff; and after hearing Arthur L. Fulknan, Esq., of counsel for the American Brewing Company; Richard O'Gorman, Esq., of counsel for the plaintiff; Harold C. Nathan, Esq., of counsel for defendant, Blanche B. Neukirch; WilUam R. Adams, Esq., of counsel for the defendants, Lambert S. Quackenbush, Lambert Suydam and Abraham C. Quacken- bush; Henry B. Singer, Esq., of counsel for Edward G. Benedict, Receiver in Bankruptcy of the North Side Brewing Company; and Moses J. Stroock, Esq., of counsel for a Committee of Stockholders of the defendant. North Side Brewing Company; and after due dehberation, it is Ordered that Leo C. Dessar, Esq., the Referee appointed by the judgment of foreclosure and sale herein, to sell the said mortgaged premises mentioned and described therein, divide the said mortgaged premises, into two separate and distinct parcels; that he first sell one of said parcels boimded and described as follows: All those certain lots, pieces or parcels of land with the building thereon situated, lying and being in the 23d Ward in the City of New York (formerly Town of Morrisania, Westchester County) being parts of the lots desig- nated by the numbers 119 and 120, on the map of the Village of Morrisania, made by Andrew Findlay, Surveyor, dated West Farms, August 10th, 1848, and now on file in the Office of the Register of said County of Westchester, said premises are together bounded and described as follows: — {Description of property) and should the proceeds realized by the sale of said parcel be insufficient to pay the amount due to the plaintiff, together with the expenses of the sale, then and in that event the Referee is directed to sell the other parcel (designated upon the map filed with the moving papers as "Parcel A") which said parcel is bounded and described as follows: (description). Enter, C. H. T., J. S. C. MORTGAGES ON REAL PROPERTY 941 Notice of Motion to Require Purchaser to Complete or for a Resale FORM NO. 517 Notice of Motion to Require Purchaser to Complete or for a Resale {Title of Action) Please to take notice, that upon the annexed affidavits of Henry B. Hammond, verified the 8th day of August, 1907, and Leo C. Dessar, verified the 8th day of August, 1907, the judgment of foreclosure and sale made and entered herein bearing date the 20th day of July 1906, the order made and entered herein bearing date the 14th day of June, 1907,* the notice of sale, terms and memorandum of sale herein, copies of which are hereto annexed and upon all of the papers, pleadings and proceedings in this action, the undersigned will move this Coiu-t at a Special Term, Part I thereof to be held in and for the County of New York at the County Courthouse in the Borough of Manhattan in the City of New York on the 21st day of August, 1907, at 10:30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard for an order direct- ing that Joseph F. Schnugg, the purchaser of the mortgaged premises sold pursuant to the said judgment and order in this action, complete his purchase within five days of the service upon him of a copy of an order directing him to complete said purchase; and further directing that if said purchaser Joseph F. Schnugg shall fail to complete his purchase within said time, that the mortgaged premises sold to said Joseph F. Schnugg be readvertised and resold by Leo C. Dessar, Referee, according to the directions and instructions contained in said judgment and order on the same terms as the sale last heretofore had, and that said Joseph F. Schnugg pay to the Referee herein the amount of any deficiency that there may be between the sum of one hundred and thirty-three thousand five hundred dollars for which said premises were sold to him upon their sale on June 18th, 1907, and the siun for which said premises are pur- chased on a resale thereof, together with all costs or expenses 942 Bradbury's lawyers' manual Affidavit of Attorney on Motion to Require Purchaser to Complete or for a Resale accruing on said resale, and any taxes, water rents or assess- ments which have or may become Hens on said premises between the date of said sale on June 18, 1907, and the time of closing on a resale of said premises and for such other and further relief in the premises as to the Court may seem just and proper, together with the costs of this motion. Dated, New York, August 9th, 1907. Yoiu's, etc., R. & E. J. O'GORMAN, Plaintiff's Attorneys, 49 & 51 Chambers Street, Borough of Manhattan, City of New York. To: Joseph F. Schnugg. FORM NO. 518 Affidavit of Attorney on Motion to Require Purchaser to Complete or for a Resale (Title of Action) ss: State of New York County of New York Henry B. Hammond being duly sworn deposes and says: I am an attorney and counsellor at law in the office of R. & E. J. O'Gorman, the attorneys for the plaintiff in the above entitled action. This action was brought to foreclose a mortgage upon real property situated in the County of New York made by Joseph Kuntz and Lena Kuntz his wife to the plaintiff. Judgment of foreclosure and sale was made and entered herein bearing date the 20th day of July 1906 and directing among other things that the premises described in the com- plaint be sold under the direction of Leo C. Dessar, Esq., Referee. By an order of this Court made and entered herein and bear- ing date the 14th day of June, 1907, said Referee was directed MORTGAGES ON REAL PROPERTY 943 Affidavit of Attorney on Motion to Require Purchaser to Complete or for a Resale to sell said mortgaged premises in two distinct parcels, each of said parcels being particularly described in said order. The said Referee caused the sale of said premises to be duly advertised for sale on the 18th day of June, 1907. That on said 18th day of June 1907, I was present at the New York Real Estate Salesroom Numbers 14 & 16 Vesey Street in the Borough of Manhattan in the City of New York, the place designated in the notice of sale. That said Referee offered said mortgaged premises for sale -and then and there sold a portion of said premises, being the parcel first described in the last above-recited order, at public auction and said par- cel was bid in and purchased by Joseph F. Schnugg, Esq., who signed the terms of sale and paid to the Referee ten per cent of the purchase price. That copies of the notice of sale and the terms of sale above mentioned are hereto annexed. That on the 18th day of July, 1907, the time fixed by the terms of sale for the completion of said purchase, said Referee was ready to deliver his deed to the said purchaser Joseph F. Schnugg, but said purchaser applied for an adjournment of one week which was granted by the Referee. That on the 25th day of July 1907, the date fixed for the completion of said purchase as so adjourned, I was present at the office of the Referee and said Referee was then ready to deliver his deed and tendered same to Joseph F. Schnugg, said purchaser, but said Schnugg failed to pay the balance due upon the sale. That said Joseph F. Schnugg has been given every reason- able opportunity to complete said purchase but is still in de- fault and the plaintiff herein is being kept out of the money due on said mortgage. That no previous application has been made in this action to the Court for an order directing that said Joseph F. Schnugg complete his purchase or that upon his failure to do so, said premises be resold. Sworn to before me, this 8th day of August, 1907. J (Signature and title of officer.) Henry B. Hammond. 944 Bradbury's lawyers' manual Aifidavit of Attorney on Motion to Require Purchaser to Complete or for a Resale {Terms of sale annexed to foregoing affidavit) New York Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz individually and as Executrix, &c., and others. Defendants. The premises described in the annexed advertisement of sale will be sold imder the direction of Leo C. Dessar, Referee, upon the following terms : Dated, New York, June 18th, 1907. First: Ten per cent, of the purchase money of said premises will be required to be paid to the said Referee at the time and place of sale, and for which the Referee's receipt will be given. Second : The residue of said purchase money will be required to be paid to the said Referee at his ofRce, No. 290 Broadway in the Borough of Manhattan, City of New York, on the 18th day of July, 1907, at 12 o'clock M. when and where the said Referee's deeds will be ready for delivery. Third: The Referee is not required to send any notice to the purchaser; and if he neglects to call at the time and place above specified to receive his deed, he will be charged with interest thereafter on the whole amount of his purchase, unless the Referee shall deem it proper to extend the time for the completion of said purchase. Fourth: All taxes, assessments and water rates, which, at the time of sale, are liens or encumbrances upon said premises, will be allowed by the Referee out of the purchase money, provided the purchaser shall, previous to the delivery of the deed, produce to the Referee proofs of such liens, and duplicate receipts for the payment thereof. MORTGAGES ON REAL PROPERTY 945 Affidavit of Attorney on Motion to Require Purchaser to Complete or for a Resale Fifth : The purchaser of said premises, or any portion thereof, will at the time and place of sale, sign a memorandum of his purchase, and. pay, in addition to the purchase money, the auctioneer's fee of fifteen dollars for each parcel sold, and two dollars salesroom fee for each knock down. Sixth: The biddings will be kept open after the property is struck down; and in case any purchaser shall fail to comply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale under the direction of said Referee under these same terms of sale, without ap- plication to the court, unless the plaintiff's attorney shall elect to make such application; and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the re-sale, and also for any costs or pxpenses occurring on such re- sale. The premises will be sold subject to state of facts shown on survey made by Frank E. Towle & Son, dated May 8th, 1907. MEMORANDUM OF SALE I have this 18th day of June, 1907, purchased that part of the premises described in the annexed printed advertisement of sale, described as parcel "B" for the sum of one himdred and thirty-three thousand five hundred dollars and hereby prom- ise and agree to comply with the terms and conditions of the sale of said premises, as above mentioned and set forth. Dated, June 18th, 1907. Joseph F. Schnugg. June 18th, 1907, received from Joseph F. Schnugg the sum of thirteen thousand three hundred and fifty dollars being ten per cent, of the amount bid by him for property sold to him under the order in this cause $13,350.00. Leo C. Dessar, Referee. 946 bbadbury's lawyers' manual Affidavit of Referee to Sell on Motion to Require Purchaser to Complete On application of purchaser the closing of this purchase is adjourned to July 25th, 1907, at same time and place, purchaser to pay interest on balance of purchase price from to-day. N. Y., July 18, 1907. Joseph F. Schnugg, L. C. Dessak, Referee. {Annexed to the foregoing terms of sale was the printed adver- tisement of the sale and a description of the separate parcels, as the property was ordered to be sold in parcels.) FORM NO. 519 Affidavit of Referee to Sell on Motion to Require Purchaser to Complete or for a Resale {Title of Action) ss: State of New York County or New York Leo C. Dessar, being duly sworn, deposes and says: I am the Referee in the above-entitled action appointed as such in the judgment of foreclosure and sale made and entered herein bearing date the 20th day of July, 1906. I was directed by said judgment to sell the premises de- scribed in the complaint, and by an order made and entered herein bearing date the 14th day of June, 1907, was further directed to sell said premises in two distinct parcels as par- ticularly described in said order. I caused the sale of said premises to be advertised and on the 18th day of June, 1907, I sold a portion thereof, being the parcel first described in the last above-recited order, at pubUc auction and said parcel was bid in and purchased by Joseph F. Schnugg, Esq., who signed the terms of sale and paid to me, said Referee, ten per cent of the purchase price. That by said terms of sale it was provided that the purchaser MORTGAGES ON REAL PROPERTY 947 Affidavit of Service of Motion Papers on Motion to Require Purchaser to Complete should complete his purchase on the 18th day of July, 1907, at 12 o'clock noon at the office of the Referee No. 290 Broadway in the Borough of Manhattan in the City of New York. That I was present at said time and place and was ready to deliver to the purchaser his deed, but said purchaser Joseph F. Schnugg applied for an adjournment of one week which, on the consent of the attorneys for the plaintiff, I granted. That on the 25th day of July, 1907, the date fixed for the completion of said purchase as so adjourned, I was present at my office and tendered a deed of said premises to Joseph F. Schnugg, said purchaser, but said Schnugg failed to pay the balance due upon said sale* and that said balance still remains unpaid. Sworn to before me, this 8th day of August, 1907. {Signature and title of officer.) Leo C. Dessar. FORM NO. 520 Affidavit of Service of Motion Papers on Motion to Require Pur- chaser to Complete or for a Resale (Title of Action) State of New York City and County of New York ss: WilHam H. McCausland, being duly sworn, deposes and says that he is over the age of twenty-one years; that on the 12th day of August, 1907, at No. 68 West 117th Street in the Borough of Manhattan, City of New York, he served the annexed affidavits and notice of motion, notice of sale and terms and memorandmn of sale personally on Joseph F. Schnugg, the piu-chaser mentioned and described in said papers, by delivering copies thereof to him personally and leaving the same with him; that deponent knew the person so 948 Bradbury's lawyers' manual Order Requiring Purchaser to Complete or £01* a Resale served to be the person mentioned and described in said af- fidavits, notice of motion and memoranduiii of sale. Sworn to before me, this 13th 1 William H. McCauslanC. day of August, 1907. J" (Signature and title of officer.) FORM NO. 521 Order Requiring Purchaser to Complete or for a Resale At a Special Term, Part I, of the Supreme Court of the State of New York held in and for the County of New York at the County Courthouse in the Borough of Manhattan in the City of New York on the 26th day of August, 1907. Present: Hon. Charles L. Guy, Justice. The Emigrant Industrial Savings Bank, Plaintiff, • - against - Lena Kuntz, individually and. as Executrix of the Last Will and Tes- tament oi Joseph Kuntz, deceased, and others. Defendants. The plaintiff having moved this court for an order directing that Joseph F. Schnugg, the purchaser of the mortgaged premises sold pursuant to the judgment and order in' this ac- tion, complete his purchase within five days of the service upon him of a copy of an order directing him to complete said purchase, and if he fail to complete within said time that said pi^eniises be readvertised and resold by Leo C. Dessar, Referee herein, and said Joseph F. Schnugg pay any deficiency arising on said resale, and said motion coming regularly on to be heard. Now, on reading and filing the notice of Said motion- dated MORTGAGES ON REAL PROPERTY 949 Order Requiring Purchaser to Complete or for a Resale the 9th day of August, 1907, and proof of due service of same upon Joseph F. Schnugg said purchaser by the affidavit of WiUiam H. McGatisland, verified the 13th day of, August, 1907, admission of due service of same by William R. Adams, attorney for said Joseph F. Schnugg, the affidavits of Henry B. Haminond and Leo 0. Dessar verified the 8th day of August, 1907, in support of said motion; and upon the judgment of foreclosure and sale made and entered -herein dated the 20th day of July, 1906, the order made and entered herein dated the 14th day of June, 1907, the notice of sale, terms and memoran- dimi of sale herein, copies of which are annexed to the notice of this motion and upon all the papers, pleadings and proceed- ings in this action and after hearing Henry B. Hammond, Esq., of counsel for the plaintiff in support of the motion, no one appearing in opposition and due deliberation being had thereon: Now, on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is ' > Ordered: that the said motion be and the same is hereby granted, and Joseph F. Schnugg, the purchaser of the premises under the judgment of foreclosure and sale herein and the order made and entered herein bearing date the 14th day of June, 1907, is hereby directed to complete his pxu-chase of the premises bid in by him on said sale within five days of service upon him of a copy of this order, and upon the failure of said Joseph F. Schnugg to complete his purchase within five days of service upon him of a copy of this order; it is Further ordered: that said premises affected by this action and described in the judgment of foreclosure and sale dated the 20th day of July, 1906, and firstly described in said order made and entered herein dated the 14th day of June, 1907, be readvertised and resold by Leo C. Dessar, the Referee named in said judgment and order; that said Referee proceed on such resale according to the directions and instructions contained in said judgment and order in all things and sell said premises on the same terms as the sale last heretofore had; and it is further Ordered and adjudged: that Joseph F. Schnugg pay to 950 Bradbury's lawyers' manual Order Requiring Purchaser to Complete or for a Resale the Referee herein the amount of any deficiency that there may be between the sum of $133,500 for which said premises were sold to him upon their sale on June 18th, 1907, and the sum for which said premises are purchased on the resale thereof as hereby ordered; and that said Joseph F. Schnugg also pay any and all costs or expenses accruing on said resale, and any taxes, water rents and assessments which have or may become liens on said premises between the date of said sale on June 18th, 1907, and the time of closing on a resale of said premises; and it is fm-ther Ordered: that the Referee apply the moneys now in his hands after payment of the fees to which he is entitled to the payment of any and all costs or expenses accruing on said re- sale and any and all costs and allowances to which plaintiff or its attorneys may be entitled, and any taxes, water rents and assessments which have or may become liens on said premises between the date of said sale on June 18th, 1907, and the time of closing on a resale of said premises, and that he apply the balance of said moneys towards any deficiency there may be on the resale; it is further Ordered : that said Joseph F. Schnugg pay to the plaintiff's attorneys ten dollars ($10) costs of this motion. Enter, C. L. G., J. S. C. MORTGAGES ON REAL PROPERTY 951 Referee's Report of Sale FORM NO. 522 Referee's Report of Sale New York Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, against Anna L. Healy, Emma C. Orr and Bank of Long Island, Defendants. To the Supreme Court of the State of New York. I, WiUiam R_. Maloney, the Referee appointed by, and named in the judgment made and entered in this action bearing date the thirty-first day of October, 1916, to make the sale of the mortgaged lands and premises therein particularly described do respectfully report as follows: First: That I caused due notice of the sale of the said lands and premises on the twenty-eighth day of November, 1916, at the Exchange Salesroom, Nos. 14-16 Vesey Street, in the Borough of Manhattan, New York City, to be given at and published according to law and the rules and practice of this Court, as will fully appear by the affidavits hereto annexed. Second: That at the time and place for which the said sale was noticed as aforesaid, I attended in person, and, agreeably to such notice, offered the said mortgaged lands and premises for sale to the highest bidder, and sold the same to Rebecca Greacen for the sum of nineteen thousand five hundred dollars, that being the highest sum bidden therefor, and received from the purchaser in cash ten per cent, of said sum. Third : That I have received from such purchaser the balance of the said purchase money, to wit, the sum of seventeen thousand five hundred and fifty dollars; that, pursuant to the provisions of Rule LXXIX of the General Rules of Practice, all 952 Bradbury's lawyers' manual Referee's Report of Sale moneys received by me as Referee herein were deposited by me in my own name as Referee in the Broadway Trust Com- pany and that such moneys so deposited have not been with- drawn except upon the order of the Court, and I have disposed of the same as follows: Fourth: That I have paid the sum of two thoiisand nine hundred and ninety-five and five one hundredths dollars, for taxes and water rates which were liens on said mortgaged premises at the time of such sale, and for which receipts are hereto annexed. f have retained for my fees and expenses on such sale the sum of one hundred and nineteen and eighty one^hundredths . dol- lars, and receipts for such expenses are hereto annexed. I have paid to the attorney for the plaintiff the sum of three hundred and twenty-one and seventy-nine one-hundredths dollars for the costs and allowance awarded to the plauitiff by such judgment, and for which a receipt is hereto annexed. Fifth : That I have paid to , the plaintiff, the sum due on the bond and mortgage upon which this action was brought, and directed to be paid to it by said judgment, the sum of fifteen thousand seven hundred and nineteen and seventy-one one hundredths dollars, and for which a receipt is hereto annexed. Sixth: That I have made, executed and delivered to such purchaser a good and sufficient deed of conveyance of the said mortgaged premises so sold. Seventh: That there remains a surplus of three hundred and forty-three and sixty-five one hundredths dollars which I have deposited with the City Chamberlain of the City of New York. Annexed hereto and made a part of this my report, is a statement showing the several items aforesaid and the hiddfe of computation of such 'surplus! All of which is respectfiilly submitted. Dated, January Oth, 1917. ' ' William R. Maloney, ' Referee. ' " Deficiency " or " Surplus." MORTGAGES ON REAL PROPERTY 953 Referee's Report of Sale STATEMENT October 25th, 1916, amount due on bond and mortgage, as per judg- ment. ; $15,551.25 December 29th, 1916, interest to date (time of closing sale) 168 .46 $15,719.71 Amount of purchase money $19,500.00 Paid for taxes and water rates $2,995 .05 Referee's fees and expenses ,,. . . 119.80 Plaintiff's costs and allowance 321 .79 Guardian's costs . ." $ , ., Total................. ....$3,436.64 Arnount paid plaintiff claim 15,719.71 ' $19,156.35 'Surplus :....$ 343.65 Dated January 9th, 1917. William R. Maloney, Referee. New York Supreme Court, County of New York. The Emigrant Industrial Savings Bank, Plaintiff, against Anna L. Healy, Emma C. Orr and Bank of Long IslanJ), Defendants. Received, December, 1916, from William R. Maloney, Esq., the Referee appointed by the judgment herein, to make the saleof the premises therein described, the sum of three hundred arid twenty-one and Seventy-nine one hundredths doUats in fuU for the costs arid allowance awarded plaintiff by the said judgment, ' and also fifteen thousand seven hundred' and nine- teen and seventy-one one hundredths dollars, the' sum due plaiiitiff on the bond knd mortgage upon which this action Was bt-ought, and directed to be paid to it by said judgment, the i"Deflciency" or "Surplus." 954 bbadbury's lawyers' manual Notice of Filing of Referee's Report of Sale and of Motion to Confirm sum of sixteen thousand and forty-one and fifty one hundredths dollars. R. & E. J. O'Gobman; Attorneys for Plaintiff. State of New York City of New York County of New York ss: William R. Malohey, being duly sworn deposes and says, and makes oath; that he is the referee who made and subscribed the foregoing report; and that said report contains a true and cor- rect account of the disposition of the proceeds of the sale in the above-entitled action, and is accompanied by the vouchers of the persons to whom payments were ordered to be made therein. William R. Maloney. Subscribed and sworn to before me, this 9th day of January, 1917. {Signature and title of officer.) FORM NO. 523 Notice of Filing of Referee's Report of Sale and of Motion to Confirm Same {Title of Action) Please take notice that the report of sale of Benno Lewin- son, Esq., the referee appointed herein to sell the mortgaged premises described in the judgment herein, was on July 23d, 1915, duly filed in the office of the Clerk of the County of New York, in the County Courthouse, in the Borough of Man- hattan, in the City of New York. Please take notice also that upon said referee's report of sale and the papers annexed thereto, and upon the annexed affidavit of Henry B. Hammond verified the 16th day of August, 1915, and the annexed certificate of the County Clerk MORTGAGES ON REAL PROPERTY 955 AfiBdavit on Motion to Confirm Referee's Report of Sale of the County of New York, the undersigned will apply to this Court at a Special Term, Part I thereof, to be held in the County Courthouse in the Borough of Manhattan, in the City of New York, on the 27th day of August, 1915, at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard, for an order confirming said report. Please take notice also that the annexed order will be submitted for settlement to the Justice presiding at Special Term, Part I, of this Court, at his Chambers in the County Courthouse in the Borough of Manhattan, in the City of New York, on the 27th day of August, 1915, at 10:30 o'clock in the forenoon. Dated, August 16th, 1915. Yours, etc., R. & E. J. O'GORMAN, Attorneys for Plaintiff. To: {NaTnes of all attorneys who appeared in action.) FORM NO. 524 Affidavit on Motion to Confirm Referee's Report of Sale (Tiik of Action) State of New York City and County of New York] Henry B. Hammond, being duly sworn, deposes and says: That he is an attorney in the office of R. & E. J. O'Gorman, attorneys for the plaintiff in this action. That the Referee's report of sale in this action was filed in the office of the Clerk of the County of New York, on the 23d day of July, 1915. That annexed hereto is the certificate of the said Coimty Clerk; that no exceptions to said report have been filed, although the time for so doing has expired. That the only parties who have appeared in this action or 956 beadbury's lawyers' manual Affidavit on Motion to Confirm Referee's Report of Sale who have filed demand of notice of sale and surplus money proceedings, are as follows: Abraham Solomon, individually and as executor of and trustee under the last will and testament of Wijliani Solomon, deceased, who appeared by David Steckler, Esq., whose office is at No. 135 Broadway, in. the Borougl^ of Manhattan, in the City of New York; The Tenement House Department of the City of New York and the City of New York who appeared by Frank L. Polk, Esq., Corporation Counsel, their, attorney, whose office is, in the Municipal Building in the Borough of Manhattan, in the City of New York. The Hebrew Free Loan Society which appeared by Jacob M. Marcuson, its attorney, whose office is at No. 256 Broad- way, in the Borough of Manhattan, in the City of New York. Hebrew Sheltering and Immigration Aid Society which ap- peared by Leon Sanders, Esq., its attorney, whose office is at No. 220 Broadway, in the Borough of Manhattan, in the City of New York. Machzikei Tahnud Torah. School which appeared by Joseph P. Friedman, Esq., its attorney, whose office is at No. 302 Broadway, in the Borough of M9,nhattan, in the City of New York. Montefiore Home and Hospital foi- Chronic Diseases, Lorin S. Bernheimer, Meyer Stern, William S. Friedlander, Julian A. Hellman and Carrie B. Bernheimer who appeared by Messrs. Stroock & Stroock, their attorneys, whose office is at No. 30 Broad Street, in the Borough of, Manhattan, . in .the City of New York. . , ... • , American Woolen Company of New York who appeared by Messrs. Hays, Hershfield & Wolf, their attorney,., whose office is at No. 115 Broadway in the Borough of Manhattan, in the City of New York. , . ,, ; John F. Degener, William Degener, John, F. Diegener,, Jr., and Gustave von Hasperg, composing the firm of C. A. Auff- mordt & Co., who appeared by Messrs Rosenberg, Levis & MORTGAGES ON REAL PROPERTY 957 Clerk's Certificate of no Exceptions Filed to Referee's Report of Sale Ball, their attorneys, whose oflBce is at No. 74 Broadway, in the Borough of Manhattan in the City of New York. James Talcott, Esq., who appeared by Charles L. Greenhall, Esq., his attorney, whose office is at No. 320 Broadway, in th6' Borough of Manhattan, in the City of New York. ; ■. That no previous application has been made for an order confirming the Referee's report of sale in this action. Sworn to before me, this 16th' j Henry B. Hammond. day of August, 1915. J - , {Signature and title of officer.) FORM NO. 525 Clerk's Certificate of no Exceptions Filed to Referee's Report of '^ '' ' ' Sale •'''"' <'-r '- ' . , .,.,.1-' Supreme Court for the City and County of New York. ' <. Emigrant Industrial Savings Bank, : ■ ■ • '■, against ' , . ' ". AfiitAHAM Solomon, ■ v:.-';. . : .:-. -etc. ■■ I, William F. Schneider, Clerk; of the Suprerne Court, , do hereby certify that the Refpree's Report of Sale in the above- entitled a;Ction was filed in ijiy office July 23, 1915, and entered in Liber 22, 1914, page 650, file No. 28598, 1914, and that.no exceptions to the Report , of . Sale, have been, filed. siijce the above date. ,, _Dated,„'New York, August. 16, 1915. , ■. '/''.,', (Signed) Wm. F. Schneider, [Se,al,] / „^,<.,.r . , , ,.;. .; . ,„• ,, .Clerkl l): 958 BRADBURY'S LAWYERS' MANUAL Affidavit of Service of Notice of Filing Referee's Report of Sale FORM NO. 526 Affidavit of Service of Notice of Filing Referee's Report of Sale and Notice of Motion to Confirm Same {Title of Action) State of New York County of New York ss: Henry B. Hammond, being duly sworn, says: that he is an attorney in the office of R. & E. J. O'Gorman, the attorneys for the above-named plaintiff, and both of said attorneys reside in the Borough of Manhattan, in the City of New York. That on the 17th day of August, 1915, deponent served the notice of filing referee's report, notice of motion to confirm same, affidavit, certificate, and proposed order with notice of settle- ment hereto annexed, upon the respective attorneys for all of the parties who appeared in this action by depositing nine sets of true copies thereof each properly enclosed in a securely closed and duly post paid wrapper, in the General Post Office at the Borough of Manhattan, in the City of New York afore- said, - directed to said respective attorneys at the addresses within the State designated by them for that purpose upon the preceding papers in this action, to wit : David Streckler, 135 Broadway, Manhattan, New York City. Frank L. Polk, Corporation Counsel, Municipal Building, Manhattan, New York City. Jacob M. Marcuson, 256 Broadway, Manhattan, New York City. Leon Sanders, 220 Broadway, Manhattan, New York City. Joseph P. Friedman, 302 Broadway, Manhattan, New York City. Messrs. Stroock & Stroock, 30 Broad Street, Manhattan, New York City. MORTGAGES ON REAL PROPERTY 959 Order Confirming Referee's Keport of Sale Messrs. Hays, Hershfield & "Wolf, 115 Broadway, Manhat- tan, New York City. Messrs. Rosenberg, Levis & Ball, 74 Broadway, Manhattan, New York City. Charles L. Greenhall, 320 Broadway, Manhattan, New York City. Sworn to before me, this 1 Henry B. Hammond. 17th day of August, 1915. J {Signature and title of officer.) FORM NO. 527 Order Confirming Referee's Report of Sale At a Special Term, Part I, of the New York Supreme Court held in and for the County of New York, at the County Court- house therein, on the 31st day of August, 1915. Present: Hon. Edward G. Whitaker, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against {Names of all Defendants), Defendants. Upon the report of sale of Benno Lewinson, Esq., Referee, made in this action and filed in the Office of the Clerk of this Court on the 23d day of July, 1915, and the papers annexed to and filed with said report, and on reading and filing the notice of filing said report and of this motion with due proof of service thereof on all parties entitled to such notice, and the affidavit of Henry B. Hammond hereto annexed, and upon proof that no exceptions to said report have been filed although the time for so doing has expired. Now, on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, it is 960 BRADBURY'S LAWYERS* MANUAL Order to Show Cause Why Extra Allowance Should not be Made to Referee to Sell Ordered and adjudged that t]be said report of sale of said Benno Lewinson, Esq., Referee, be and the same hereby is in all respects confirmed. Enter, E. G. W., J. S. C. FORM NO. 528 Order to Show Cause Why Extra Allowance Should not be Made to Referee to Sell (Title of Action) Upon the annexed affidavit, the judgment and all proceed- ings had herein. Let the parties who have appeared in this action or their attorneys show cause before this Court, at Special Term, Part I thereof, at the County Courthouse, in the Borough of Man- hattan, City of New York, on the 19th day of March, 1914, at 10:30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard, why an extra allowance should not be awarded to the referee herein for his services pursuant to the provisions of Section 3297 of the Code of Civil Procedure, and why his fees as such referee should not be fixed at the sum of $150, and why he should not have such other and further relief as to this Court may seem just. Reasons appearing therefor, let service hereof on or before the 18th day of March, 1914, be deemed sufficient. Dated, New York, March 17th, 1914. •, Alfred R. Page, Justice of the Supreme Court of the State of New York. MORTGAGES ON REAL PROPERTY 961 Affidavit on Motion by Referee for Extra Allowance FORM NO. 529 Affidavit on Motion by Referee for Extra Allowance , ^ {Title of Action) City and County of New York, ss: Charles L. Hoffman, being duly sworn, deposes and says: I am the referee appointed by the judgment of this Court dated the 23d of December, 1913, for the purpose of seUing under foreclosure the property involved herein, situated on the north side of 44th Street, between 10th and 11th Avenues. I was served with a certified copy of the judgment herein on the 6th of January, 1914, and pursuant to the provisions thereof I proceeded to cause the property to be advertised for sale and attended at the sale at 14-16 Vesey Street, this City, on the 30th of January, 1914, and the property was sold to Elizabeth Gorgers for the sum of $11,150.00. I received ten per cent, of the amount of the bid, and this ten per cent. I deposited under the provisions of the judgment with the Empire Trust Com- pany. The terms of sale were properly executed. I was also advised that the purchaser had arranged to pro- cure a loan to pay the purchase price of this property from the proceeds of such loan. With respect thereto I was communi- cated with by the various attorneys concerned with the said purchaser and the proposed mortgagees prior to the date fixed for closing of title. The purchaser was also represented by the Title Guarantee & Trust Company, and at the time fixed for the closing of title, to wit, March 2, 1914, a representative of this company appeared, as did also the attorney for the plain- tiff, and after considerable discussion lasting quite some time, pursuant to the suggestion and request of Mr. Hammond of the plaintiff's attorneys, the purchaser was advised that since she was not ready to close on that day, title would be delivered to her, provided she would be able to close within a reasonable time thereafter. After that I had various talks with the at- 962 BRADBURY'S LAWYERS* MANUAL Affidavit on Motion by Referee for Extra Allowance torneys in interest with respect to the raising by them of a mortgage on behalf of the purchaser, and with respect to the closing of title, and we finally fixed the 17th of March, 1914, for the closing of title, and on that day the various parties appeared for that purpose at ten o'clock in the forenoon, and we were occupied until 12:30 when the closing of title was com- pleted. I received the total purchase price, and the various sums directed by the judgment to be paid were so paid. The plaintiff received for principal and interest $6,354.82, the costs of the action amounted to $355.22. There were paid taxes and water rates amounting to $1,376.38, and the advertising expenses amounted to $128.50. This will leave a surplus of about $2,900. I have frequently acted as referee in these cases and also as the attorney for the plaintiff in such cases, and I am thoroughly familiar with the details of such transactions and the services usually rendered by attorneys and referees, and I state that I have devoted to this matter at least three times as much time as is necessarily devoted by referees in appearing at the sale and closing of title pursuant to the sale, and in performance of the duties generally required of referees in foreclosure suits. I therefore beheve that this is a case in which it is proper to grant an additional allowance under the provisions of Sec- tion 3297 of the Code of Ci\'il Procedure, and therefore ask that my fees as referee in this matter be fixed at the sum of $150. I am advised that the only appearances in this action are as follows: Frank Thorn, Esq., attorney for defendant, EmiUe Pfaif, as executrix, etc. 35 Nassau Street, N. Y. City. Walter H. Cragg, Esq., attorney for defendant, Myron Strauss, 44 Court Street, Brooklyn, N. Y. J. D. Tobias, Esq., attorney for defendants, Nathan J. Packard & ano., 99 Nassau Street, N. Y. City. Greenthal & Greenthal, attorneys for defendant, Bernandina Gorgers, Ind. 277 Broadway, N. Y. City. P. R. Ferrari, Esq., attorney for defendant, Bernandina Gorgers, as Trustee, 322 Broadway, N. Y. City. MORTGAGES ON REAL PROPERTY 968 Order Granting Extra Allowance to Referee to Sell Rabe & Keller, attorneys for defendants, Elizabeth Gorgers and B. Maroney. I also ask for an order to show cause instead of requiring the usual notice of motion for the reason that I desire to deposit the exact amount of the surplus with the Chamberlain pursuant to the judgment, as speedily as possible. No previous application has been made. Sworn to before me, this 17th 1 Chas. L. Hoffman. day of March, 1914. J {Signature and title of officer.) FORM NO. 530 Order Granting Extra Allowance to Referee to Sell At a Special Term of the Supreme Court, New York Ceunty, held at Part I thereof, at the County Courthouse, Borough of Manhattan, New York City, on the 23d day of March, 1914. Present: Hon. Bartow S. Weeks, Justice. The Emigrant Industrial Savings Bank, Plaintiff, against Bernardina Gorgers, etc., et al., Defendants. The referee appointed by the judgment of foreclosure and sale herein, dated the 23d day of December, 1913, having apphed to this court for an order granting to him an extra allowance for his services and fixing his fees as such referee; and after reading the order to show cause dated the 16th day of March, 1914, and the affidavit of Charles L. Hoffman, verified March 16, 1914, together with the consent of Frank Thorn, Esq., the attorney for the defendant Pfaff, in behalf of said motion, and after hearing Charles L. Hoffman, Esq., 964 Bradbury's lawyers' manual Request to Clerk to Docket Deficiency Judgment and Frank Thorn, Esq., in support of said motion, and also after hearing the attorney for the holder of the third mortgage; and deliberation having been had thereupon; and on fihng the opinion of the court; It is ordered that the said motion be and the same hereby is granted and the fees of Charles L. Hoffman, Esq., the referee herein, for his services rendered pursuant to the judgment herein dated December 23d, 1913, be and the same hereby are fixed at the sum of one hundred dollars, which sum as his fees the said referee is authorized to retain out of the proceeds of sale and to deposit the surplus after the payments are made pursuant to the said judgment, with the Chamberlain of the City of New York, as therein directed. Enter, B. S. W., J. s. c. FORM NO. 531 Request to Clerk to Docket Deficiency Judgment New York Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, • against Agnes M. Brooker, individually and as Executrix of the Last Will and Testament of Mary Fall, de- ceased, Susan Fall, individually and as Executrix of the Last Will and Testament of Mary Fall, de- ceased, and others, Defendants. To William F. Schneider, Esq., Clerk of the County of New York: You are hereby requested to docket judgment in favor of MORTGAGES ON REAL PROPERTY 965 Request, to Clerk to Docket Deficiency Judgment the plaintiff, The Emigrant Industrial Savings Bank, against the Defendants, Agnes M. Brooker and Susan Fall as Execu- trices of the Last Will and Testament of Mary Fall, deceased, for the sum of one thousand four hundred and three dollars and seventy- two cents, pursuant to the judgment made and entered herein, bearing date the 15th day of October, 1915, and the Referee's Report of sale dated November 23d, 1915, and filed herein on the 24th day of November, 1915, showing a deficiency of one thousand four hundred and three dollars and seventy-two cents. Dated, New York, November 24, 1915. R. & E. J. O'GORMAN, Plaintiff's Attorneys, 51 Chambers Street, Borough of Manhattan, City of New York. CHAPTER XLV CHATTEL MORTGAGES FORMS NO. PAGE NO. PAGE 532. Mortgage on goods and chat- lieu of a copy of a chattel tela 966 mortgage 971 533. Assignment of chattel mort- 537. Complaint; action to fore- gage 968 close mortgage on chattel f.72 534. Satisfaction of chattel mort- 538. Affidavit on writ of seizure; gage 969 action to foreclose mort- 535. Statement to be appended gage on chattels 975 to copy of chattel mort- 538a. Writ of seizure; action to gage upon refiling 970 foreclose chattel mortgage. 979 536. Statement to be refiled in FORM NO. 532 Mortgage on Goods and Chattels To ALL TO WHOM THESE PRESENTS SHALL COME, KNOW YE THAT I, William Brown, residing at No. , Street, Borough of Manhattan, City of New York, of the first part, for securing the payment of the indebtedness hereinafter men- tioned, in consideration of the smn of one dollar to me duly paid by John Jones, who resides at No. , Street, Borough of Manhattan, City of New York, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant, bargain and sell unto the said party of the second part, his executors, administrators, and assigns, all the goods and chattels mentioned in the sched- ule hereunto annexed, and now in the premises at No. , Street, Borough of Manhattan, City of New York. To HAVE AND TO HOLD, all and singular the goods and chat- tels above bargained and sold, or intended so to be, unto the said party of the second part, his executors, administrators and assigns forever. And I, William Brown, the said party of the first part, for myself, my heirs, executors and adminis- 966 CHATTEL MOETGAGES 967 Mortgage on Goods and Chattels trators, all and singular of the said goods and chattels above bargained and sold, unto the said party of the second part, his executors, administrators and assigns, against me the said party of the first part, and against all and every person or per- sons whomsoever, shall and will warrant, and forever defend. Upon condition that if the said William Brown, the said party of the first part, shall and do well and truly pay unto the said party of the second part, his executors, administrators or assigns, the sum of dollars, with interest thereon at the rate of five per centimi per annum on or before the day of , 19 , then these presents shall be void. And I, said William Brown, the said party of the first part, for myself, my executors, administrators and as- signs, do covenant and agree, to ^.nd with the said party of the second part, his executors, administrators and assigns, that in case default shall be made in the payment of the said sum above mentioned, then it shall and may be lawful for and I, the said party of the first part, do hereby authorize and empower the said party of the second part, his executors, administrators and assigns, with the aid and assistance of any person or persons, to enter my dwelling house, store and other premises, and such other place or places as the said goods or chattels are or may be placed, and take and carry away the said goods and chattels, and to sell and dispose of the same for the best price they can obtain, and out of the money arising therefrom, to retain and pay the said sum above mentioned, and all charges touching the same, rendering the overplus (if any) unto me or to my executors, administrators or assigns. And until default be made in the payment of the said sum of money, I am to remain and continue in the quiet and peaceable possession of said goods or chattels, and the full and free enjoy- ment of the same. In witness whereof, I the said party of the first part have hereunto set my hand and seal the day of , 19 . Sealed and delivered in the presence of William Brown (L. S.) 968 Bradbury's lawyers' manual Assignment of Chattel Mortgage Schedule referred to in foregoing mortgage: (Here set forth an itemized description of the goods and chattels covered by the mortgage so they may be easily identified if it is necessary to fore- close the mortgage.) William Brown. State or New York County of New York ss: City or New York On this day of , 19 , before me the undersigned personally came William Brown, to me known and known to me to be the individual described in, and who executed the foregoing instrimient, and he acknowledged to me that he executed the same. (Signature and title of officer.) FORM NO. 533 ^ Assignment of Chattel Mortgage Know all men by these presents, that I, William Brown, party of the first part, in consideration of the sum of dollars lawful money of the United States, to me in hand paid by John Jones, residing at No. , Street, Borough of Manhattan, City of New York, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bar- gained, 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 Chattel Mort- gage, bearing date the day of , 19 , made by John Doe to me William Brown to secure the sum of dollars and which was duly filed in the oflSce of the Register of the County of New York on the day of ,19 , at o'clock in the noon 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 CHATTEL MORTGAGES 969 Satisfaction of Chattel Mortgage second part, his executors, administrators and assigns, subject only to the proviso in the said Chattel 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 costs and charges, to have, use and take all lawful ways and means for the recovery of the said money and interesj;; and in case of payment to dis- charge 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 , 19 . Sealed and delivered in the presence of William Brown, (L. S.) State of New York County of New York ■ ss: City of New York On this day of j 19 , before me per- sonally came and appeared William Brown to me known, and known to me to be the person described in and who executed the foregoing instrument, and he acknowledged to me that he executed the same. (Signature and title of officer.) FORM NO. 534 Satisfaction of Chattel Mortgage State of New York County of New York ^ss: I, William Brown, do hereby certify, that a certain In- denture of Mortgage bearing date the day of , 19 , made and executed by John Jones to secure the sum of dollars and filed in the office of the Register of the County of New York on the day of , 970 Bradbury's lawyers' manual Statement to be Appended to Copy of Chattel Mortgage upon Refiling 19 , at o'clock minutes, in the noon/ has been paid. And I do hereby consent that the same be discharged of Record, Dated the day of , 19 . In the presence of William Brown. State of New York 1 County of New York] On this day of > 19 , before me per- sonally came William Brown to me known, and known to me to be the person described in and who executed the foregoing In- strument, and he acknowledged to me that he executed the same. (Signature and title of officer.) FORM NO. 535 Statement to be Appended to Copy of Chattel Mortgage upon Refiling 2 I, John Jones, the mortgagee within named, do certify and state that there remains due and unpaid on the mortgage of which the foregoing is a true copy the sum of dollars and this copy and statement are filed to continue the notice required by the statute made and provided, for the renewal of chattel mortgages. {The copy of the mortgage as filed must contain all the indorse- ' It the mortgage has been assigned and the satisfaction is made by the assignee the assignment, and when and where filed, should be recited; also if the mortgage has been refiled once or more, the times and places of refiling should be recited. ^Every chattel mortgage should be filed in accordance with §§ 230 et seg., of the Lien Law. Within thirty days next preceding the expiration of each term of one year after the mortgage is filed there must be a further filing of either a statement containing a description of the mortgage, the names of the parties, the time when and place where filed, the interest of the mortgagee or any person who has suc- ceeded to his interest in the property claimed, or a copy of the mortgage and Us endorsements, with a statement attached thereto or endorsed thereon showing the interest of the mortgagee or of any person who has succeeded to his interest in the mortgage. See Lien Law, § 235. CHATTEL MORTGAGES 971 Statement to be Refiled in Lieu of a Copy of a Chattel Mortgage ments of the various previous filings and refilings as they appear on the copies actually filed.) Dated the day of , 19 . John Jones. FORM -NO. 536 Statement to be Refiled in Lieu of a Copy of a Chattel Mortgage (Lien Law, § 235) I, John Brown, hereby certify that I am the owner of a certain chattel mortgage dated the day of , 19 , made by James Smith to me John Brown on goods and chattels located at No. , Street in the Borough of Man- hattan, City and State of New York, to secure the sum of dollars, and that my present interest therein is the sum of dollars, with interest thereon from the day of , 19 , which is the amount remaining unpaid thereon. I further certify that a copy of said chattel mortgage was originally duly filed in the office of the (Register of the County of New York) on the day of , 19 ; that a copy thereof with endorsements with a statement of my then present interest in said mortgage was duly filed in the office of the (Register of the County of New York) on the day of , 19 . Or That a statement pursuant to § 235 of the Lien Law con- taining a description of said mortgage, the names of the par- ties, the time when and place where filed, the then interest of the mortgagee (or any person who had succeeded to his in- terest) in the property mortgaged claimed by virtue thereof was duly filed in the office of the (Register of the County of New York) on the day of , 19 ; (and a further statement in all respects similar to the one described above 972 Bradbury's lawyers' manual Complaint; Action to Foreclose Mortgage on Chattel was duly filed in the office of the register of the County of New York on the day of , 19 . Dated, the day of , 19 . John Brown. FORM NO. 537 Complaint; Action to Foreclose Mortgage on Chattel ^ Supreme Court, Kings County. Carmine Coiro, Plaintiff, against MoE Baron and Inn Corporation, Defendants. Plaintiff, complaining of the defendant, respectfully al- leges : I. That the defendant, the Inn Corporation, is a domestic corporation. II. That on or about the 8th day of February, 1912, to secure an indebtedness of the sum of two thousand three hun- dred and thirteen and eight one hundredths dollars on money due and owing to one Michael Salit, an obligation incurred by the said Michael Salit for the defendant, Moe Baron, did execute and deliver to Michael Salit a chattel mortgage, wherein it provided among other things that the said Moe Baron for securing the payment of the said sum, did bargain and seU unto the said Michael Salit certain goods and chattels as men- tioned in the schedule of the said mortgage, a copy of which mortgage is hereto annexed and marked Exhibit "A," and made a part of the complaint herein, a copy of which mortgage was duly filed in the Kings County Clerk's office on the 9th ' Adapted from Coiro v. Baron, 158 App. Div. 591 ; 143 Supp. 853. For affi- davit to secure writ of seizure, see Form No. 538, post, page 975; writ of seizure, see Form No. 538a, post, page 979. CHATTEL MORTGAGES 973 Complaint; Action to Foreclose Mortgage on Chattel day of February, 1912, that being the County wherein all of said chattels then were. Hi. That the said chattel mortgage provided that if the defendant should well and truly pay to the said Michael Salit or his executors, administrators or assigns, and comply with the terms and conditions of the said chattel mortgage as therein provided, that the said chattel mortgage should be null and void. IV. That the said defendant Moe Baron did convey to the plaintiff's assignor for the purposes aforesaid the personal property mentioned in the schedules of. the instrument as referred to, of which the defendant Moe Baron was then the owner, and with the condition that the same should remain in the possession of the said Moe Baron from February 8th, 1912, and so long as the defendant fulfilled and compUed with the terms and conditions as provided for in the said chattel mortgage, and in that event then the said conveyance should be void as hereinbefore stated, and not otherwise. V. The plaintiff alleges that the said personal property had been left in the possession of said Moe Baron, the defend- ant, at the place known by the name of Belvidere Hotel, 879 Broadway, Borough of Brooklyn, City of New York. VI. That prior to the 27th day of June, 1912, the defendant Moe Baron failed to pay the three notes of the sum of one hundred forty-four and six one hundredths dollars, as provided in the said mortgage, to the said Michael Salit, and the defend- ant Moe Baron failed to pay certain notes endorsed by the said Michael Salit held by the Montauk Bank, and by the terms and conditions of the said mortgage said Michael Salit and this plaintiff elected to deem the entire amount of the said mortgage to be due and payable, and the said defendant Moe Baron has defaulted on the said mortgage. VII. That heretofore and on the 3d day of May, 1913, said Michael Salit, duly assigned said chattel mortgage to this plaintiff, together with all moneys due or to grow due thereon, with interest, and the plaintiff is now the owner and holder thereof. 974 BRADBURY'S LAWYERS' MANUAL Complaint; Action to Foreclose Mortgage on Chattel VIII. On information and belief, prior to the 29th day of June, 1912, said Moe Baron conveyed said chattels to the defendant Inn Corporation, subject to the terms and condi- tions of the said mortgage, and the said Inn Corporation took title to the same with full knowledge of the lien of the said Michael Salit thereupon. That payment of the said smn of two thousand three hundred thirteen and eight one hundredths dollars has been duly demanded and possession of the chattels conveyed to Michael Salit as security as aforesaid, remains in the said defendant Moe Baron, and the Inn Corporation, who have neglected and .failed to deliver the same to the plaintiff, and still neglect and refuse so to do, although due demand has been made therefor. IX. That no part of the said sum has been paid upon the items herein mentioned, although due demand has been made, and there is now due and- owing upon said mortgage the simi of two thousand three hundred thirteen and eight one hundredths dollars, with interest thereon from the 8th day of February, 1912. X. That no other action is now pending and imdetermined for the relief demanded therein; or to recover any part of the said mortgage debt. XL That the defendants herein have, or claim to have, an interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subse- quent to the lien of the said mortgage and is subject and sub- ordinate thereto. Whereof, plaintiff demands judgment that the defendants be barred and foreclosed of all right, title and interest or Uen upon said personal property as described in the chattel mort- gage, hereto annexed; that the same be sold according to law; that out of the proceeds thereof the plaintiff be paid the amount of two thousand three hundred thirteen and eight one hun- dredths dollars, together with interest thereon from the 8th day of February, 1912, besides the costs of this action; and that the defendant Moe Baron be adjudged to pay the plaintiff any deficiency that may remain after so applying the moneys CHATTEL MORTGAGES 975 Affidavit on Writ of Seizure; Action to Foreclose Mortgage on Chattels arising out of such sale, and that the plaintiff may have such other and further rehef as may be just and proper. Ralph K. Jacobs, Attorney for Plaintiff, 215 Montague Street, [Verification.] Brooklyn, N. Y. {Attached hereto was the chattel mortgage referred to in the complaint.) FORM NO. 538 Affidavit on Writ of Seizure; Action to Foreclose Mortgage on Chattels ^ Supreme Court, Kings County. Carmine Coiro, Plaintiff, against MoE Baron and Inn Corporation, Defendant. State of New York City op New York ss: County op Kings Carmine Coiro, being duly sworn, deposes and says th^t he is the plaintiff in the above-entitled action. That this is an action to foreclose a lien on chattels by virtue of a chattel mortgage, a copy of which is hereto armexed to the complaint and made a part of this affidavit, which mortgage and the debt secured thereby was duly assigned to deponent by Michael Salit, the mortgagee therein named, by assignment in writing, dated the 3d day of May, 1913. That deponent is now the owner and holder of the said mortgage and the debt secured thereby. 1 From Coiro v. Baron, 158 App. Div. 591 ; 143 Supp. 853. For complaint in this action, see Form No. 537, ante, page 972; writ of seizure, see Form No. 538a, post, page 979. 976 Bradbury's lawyers' manual Affidavit on Writ of Seizure; Action to Foreclose Mortgage on Chattels That the defendant, Inn Corporation, is a domestic corpora- tion with its principal office at 879 Broadway, in the Borough of Brooklyn, New York City, and that the defendant, Moe Baron, is a resident of the Borough of Brooklyn, City of New York. That in pursuance to the terms of the said mortgage, the defendant is justly indebted to the plaintiff in the sum of two thousand three hundred thirteen and eight one himdredths dollars, together with interest thereon from the 8th day of February, 1912, over and above all payments and set-offs or counterclaims which the said defendant has against the plain- tiff or plaintiff's assignor known to the plaintiff, which indebt- edness arose as follows: That on or about the 8th day of February, 1912, to secure an indebtedness of the sum of two thousand three hundred thir- teen and eight one hundredths dollars on moneys due and owing to one Michael Salit, plaintiff's assignor, and obligatioas incurred by the said Michael Salit^ for the defendant, Moe Baron, and for other good and valuable consideration the said Moe Baron did execute and deliver to the said Michael SaJit, a chattel mortgage wherein it was provided among other things that the said Moe Baron, for securing the payment of the said sum, did bargain and sell unto Michael Salit, certain goods and chattels mentioned in the schedules of the said mortgage, copy of which mortgage is hereto annexed to the complaint herein and marked Exhibit* "A," and which mortgage and the summons and complaint herein are made a part of this affidavit. That the said mortgage was duly filed in the Kings County Clerk's office on the 9th day of February, 1912, that being the County wherein all of the chattels described in the said mort- gage were. That the said chattel mortgage provided that if the defend- ant, Moe Baron, should well and truly pay to the said Michael Salit, his executors, administrators or assigns and comply with the terms and conditions of the said chattel mortgage that the said chattel mortgage should be null and void. That the said defendant, Moe Baron, did convey to the CHATTEL MORTGAGES 977 Affidavit on Writ of Seizure; Action to Foreclose Mortgage on Chattels plaintiff's assignor for the purpose aforesaid the personal prop- erty mentioned in the schedules of the instrument referred to of which the defendant, Moe Baron, was then the owner, with the condition that the same should remain in the possession of the said Moe Baron from the 8th day of February, 1912, and so long as the defendant, Moe Baron, fulfilled and complied with the terms and conditions as provided for in the said chattel mortgage, and in that event then the said conveyance be void as hereinbefore stated and not otherwise. The plaintiff alleges that the said personal property has been left in the possession of the defendant, Moe Baron, at the place known by the name of Belvidere Hotel, 879 Broadway, Brooklyn, New York City. That prior to the 27th day of June, 1912, the said Moe Baron, failed to pay three notes of the sum of one hundred forty-four and six one hundredths dollars as provided in the said mortgage to the said Michael Salit, and the defendant, Moe Baron, failed to pay certain notes endorsed by the said Michael Salit held ■ by the Montauk Bank, and by the terms and conditions of the said chattel mortgage, the said Michael Salit and plaintiff herein elect to deem the entire amount of the said chattel mortgage to be due and payable, and the said defendants having defaulted on the said mortgage. That the said Moe Baron conveyed the chattels described in the said mortgage to the defendant. Inn Corporation, sub- ject to the terms and conditions of this mortgage and that the said corporation took title to the same with full knowledge of the lien of the said Michael Salit and deponent therein. That the payment of the said sum of two thousand three hundred and thirteen and eight one hundredths dollars has been duly demanded and possession of the chattels conveyed to the said Inn Corporation as security as aforesaid, remains in the said defendants who have neglected and failed to deliver the same to the plaintiff and still neglect so to do although due demand has been made therefor. That no part of the said sum has been paid upon the items herein mentioned although due demand has been made and 978 BRADBURY'S LAWYERS* MANUAL Affidavit on Writ of Seizure; Action to Foreclose Mortgage on Chattels there is now due and owing upon the said chattel mortgage the sum of two thousand three hundred thirteen and eight one hundredths dollars with interest thereon from the 8th day of February, 1912. That there is no other action pending and undetermined for the reUef demanded herein or to recover any of the said mort- gage debt. That the defendants herein have or claim to have some interest in or lien upon the said chattels which interest or lien, if any, has accrued subsequently to the lien of the said chattel mortgage herein and is subject thereto. That the plaintiff is not in possession of any of the chattels described in the said mortgage, the same being in the possession of the defendant, at the place known as the Belvidere Hotel, 879 Broadway, Brooklyn, New York. That the value of said chattels does not exceed $600. That no previous application has been made for a writ of seizure herein. Wherefore, deponent respectfully asks for a warrant against the said chattels upon the grounds herein set forth directing the sheriff of the County of Kings to take possession of the said chattels pending the determination of this action and for such other and fm-ther relief as the court may deem just and proper. Sworn to before me, this 1 Carmine Coiro. 10th day of May, 1913. J Simon Abrahamson, Commissioner of Deeds, For the City of New York. CHATTEL MORTGAGES 979 Writ of Seizure; Action to Foreclose Mortgage on Chattels FORM NO. 538a. Writ of Seizure ; Action to Foreclose Mortgage on Chattels ' Supreme Court, Kings County. Carmine Coiro, Plaintiff, against MoE Baron and Inn Corporation, Defendants. The People of the State of New York to the Sheriff of the County of Kings: Whereas, in an action brought in this court by Carmine Coiro, against Moe Baron and Inn Corporation, the defendants, application has been made to the undersigned, a judge of this court, by Carmine Coiro, plaintiff, for a warrant to seize and safely keep the chattels hereinafter described, to abide the final judgment in the said action; and it satisfactorily appearing by affidavit that said chattels are worth the sum of six hundred dollars, and that a cause of action, as specified in § 1737 of the Code of Civil Procedure, exists in favor of the plaintiff and against the defendant to foreclose a lien for the sum of two thou- sand three hundred and thirteen and 8 100 dollars ($2,313.08) upon said chattels; and the plaintiff having given the under- taking required by law; Now, you are hereby commanded to seize the following chattels being the chattels described in the complaint of said action, or so much thereof as may be found in your County, and safely keep the same to abide the final judgment in the action, and that you proceed herein in the manner and make your return within the time required of you by law. Schedule referred to in the foregoing mortgage. ' From Coiro v. Baron, 158 App. Div. 591 ; 143 Supp. 853. For complaint in this case, see Form No. 537, ante, page 972; for affidavit to secure writ of seizure, see Form No. 538, ante, page 975. 980 Bradbury's lawyers' manual Writ of Seizure; Action to Foreclose Mortgage on Chattels The following are the goods, wares and chattels as enu- merated belonging to Moe Baron, now in his possession, all of which are now contained in the premises known as No. 789 Broadway, Borough of Brooklyn, City and State of New York. {Here was set forth in full descriptions of each specific article and in what room it was to be found.) Witness: Hon. Samuel T. Maddox, Justice of the Supreme Court, Kings County, at Brooklyn, N. Y., this 12th day of May, 1913. By the court, (L. S.) Charles S. Devoy, Clerk of Kings County. Granted and allowed. May 10, 1913, S. T. Maddox, Justice of Supreme Court. CHAPTER XLVI BILL OF SALE FORMS NO. PAGE NO. PAGE 539. Bill of sale 981 close lien on chattel under 540. Complaint; foreclosure of conditional bill of sale. . . . 985 lien on chattels under eon- 542. Judgment; foreclosure of lien ditional biU of sale 983 on chattel under condi- 541. Affidavit to procure warrant tionalbillof sale 987 of seizure in action to fore- FORM NO. 539 Bill of Sale Know all men by these presents, that I, John Jones, residing at No , Street, Borough of Manhattan, City of New York, party of the first part, for and in considera- tion of the sum of dollars lawful money of the United States, to me in hand paid, at or before the ensealing and delivery of these presents, by William Brown, residing at No , Street, Borough of Manhattan, City and State of New York, party of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators and assigns, all the goods and chattels described in the schedule hereunto annexed and hereby made a part of this instrument, which said goods and chattels are now on the premises at No. , Street in the Borough of Manhattan, City and State of New York. To HAVE and to hold the same unto the said party of the second part, his executors, administrators and assigns forever. And I do for my heirs, executors and administrators, covenant and agree to and with the said party of the second part, to warrant and defend the sale of the said goods and chattels 981 982 Bradbury's lawyers' manual Bill of Sale hereby sold unto the said party of the second part, his executors, administrators and assigns against all and every person and persons whomsoever. In witness whereof, I have hereunto set my hand and seal the day of , in the year one thousand nine hundred and Signed, sealed and delivered in the presence of John Jones (L. S.) Schedule of foregoing bill of sale: (Give particular description of the goods and chatteh so they may be identified if it is necessary to replevin the goods.) John Jones. State of New York County of New York On this day of , in the year one thou- sand nine hundred and before me personally came and appeared John Jones to me known, and known to me to be the person described in, and who executed the foregoing Instrument, and he acknowledged to me that he executed the same. (Signature and title of officer.) ss: BILL OF SALE 983 Complaint; Foreclosure of Lien on Chattel under Conditional Bill of Sale FORM NO. 540 Complaint; Foreclosure of Lien on Chattel under Conditional Bill of Sale ' Supreme Court, County of New York. The Brunswick-Balke Collender Co. OF New York, Plaintiff, against Palm Building Co. Defendant. Plaintiff complains and alleges: • First: That at all the times hereinafter mentioned, this plaintiff was and is a domestic corporation. Second: That at all the times hereinafter mentioned the defendant was and is a domestic corporation. Third : That on or about the twenty-first day of February, 1911, this plaintiff entered into a contract with the defendant,, in and whereby the defendant promised and agreed to purchase from the plaintiff certain goods and chattels, to wit: two pairs regulation bowling alleys, at the price of $1,600 less 5% payable in installments as follows: $160 on signing the said contract $300 on delivery of the said material and $300 on completion of the work in installing, and setting up the said Bowling Alleys, and the balance in three installments of $250 and $260 respectively each a copy of which contract is annexed hereto and marked "A" and made a part of the complaint, in and whereby it was pro- ^ From Brunstoick-Balke Collender Co. v. Palm Building Co., 4 Bradbury's Pl. & Pr. Rep. 644. For affidavit to secure writ of seizure, see Form No. 541, post, page 085, tor judgment, see Form No. 542, post, page 987. 984 Bradbury's lawyers* manual Complaint; Foreclosure of Lien on Chattel under Conditional Bill of Sale vided that the purchase of the said chattels should be condi- tional and that the title of the property above described should remain in the plaintiff until the purchase price or any judgment for the same should be paid in full; and if notes be given, then until all such notes should be paid in full; and that upon the failure to pay any of the installments, the whole amount pay- able as aforesaid, should be immediately due and payable, and that the plaintiff should be entitled to the immediate possession of the chattels thus conditionally sold. Fourth: That thereupon due delivery of the said Bowling Alley and appurtenances, was made to the defendant as set forth in the specifications annexed hereto, v/hich were made part of the said contract and are marked "B" and made part of this complaint, and all of which were delivered and installed upon the premises, 225-229 Sackman Street, in the Borough of Brooklyn, City of New York, and is the only property of the same kind, description or nature upon the said prem- ises. Fifth: That although this plaintiff duly performed its said contract and delivered the said property as aforesaid, and com- pleted the work in and by the said contract contemplated, the defendant wholly failed to pay any part of the said sum of one thousand five hundred and twenty dollars ($1,520), excepting only the sum of four hundred and sixty dollars ($460), although the whole amount secured by the said contract has become payable; and that by reason of the failure to pay as aforesaid, the balance of one thousand and sixty ($1,060) dollars remains due and unpaid, and this plaintiff has a lien upon the chattels hereinbefore mentioned and described in Schedule B for the sum of one thousand and sixty dollars ($1,060), with interest thereon from the 21st day of August, 1911. Wherefore, this plaintiff demands judgment that the said lien be foreclosed and that the said chattels be sold under and piu-suant to the judgment of this court, and the proceeds of such sale applied toward the satisfaction and payment of the said lien and the costs of this action; and that personal judg- ment be rendered against the defendant for any deficiency that BILL OF SALE 985 Affidavit to Procure Warrant of Seizure in Action to Foreclose Lien may arise after such sale and application and for such other relief as inay be just; besides the costs of this action. Charles Goldzier, Attorney for Plaintiff, 115 Broadway, Borough of Manhattan, City of New York. [Verification.] FORM NO. 541 Affidavit to Procure Warrant of Seizure in Action to Foreclose Lien on Chattel under Conditional Bill of Sale ^ The Brunswick-Balke Collender Co. or New York, Plaintiff, against Palm Building Co., Defendant. City and County op New York, ss: A. A. Troescher, being duly sworn, says: That he is the Treasurer of the Brunswick-Balke Collender Co. of New York, the plaintiff herein, which is a domestic corporation, and that this action is brought against the Palm Building Co., which is also a domestic corporation. Deponent further says that this action is brought to foreclose a conditional bill of sale, a true copy whereof is annexed to the complaint to which this deponent refers as part of this affidavit and that the chattels subject to the hen of the said conditional bill of sale and as described in the specifications marked "B" annexed to the complaint, are two separate pairs ■■ From Brunswick-Balke CoUender Co. v. Palm Building Co., 4 Bradbtjhy's Pl. & Pr. Rep. 644. For complaint, see Form No. 540; for judgment, see Form No. 542. See Form No. 538a, for writ of seizure on foreclosure of chattel mort- gage which in all essential particulars is the same as would be issued in a case of this character. 98B BRADBURY'S LAWYERS' MANUAL Affidavit to Procure Warrant of Seizure in Action to Foreclose Lien of bowl'ng alley beds with approaches, gutters and return chutes, as now contained upon the premises Nos. 225-229 Sack- man Street, in the Borough of Brooklyn, together with two double wall score boards, four half pin sets and 40 balls for bowhng; which is the only property of that kind, name or description situated upon the said premises. Deponent further says, that the plaintiff has a lien upon the said goods, chattels and property in the amount of one thousand and sixty dollars upon the cause of action set forth in the com- plaint herein; and that the said chattels are not in the possession of the plaintiff but are in the possession of the defendant at the premises aforesaid. Wherefore, the plaintiff applies for a writ to seize the said chattels in order to make subject to the judgment herein apphed for. No previous application for a writ to seize has been made to any court, judge or justice. Sworn to before me, this | A. A. Troescher. day of February, 1912. J (Signature and title of officer.) BILL OF SALE 987 Judgment; Foreclosure of Lien on Chattel under Conditional Bill of Sale FORM NO. 542 Judgment; Foreclosure of Lien on Chattel under Conditional Bill of Salei At a Special Term, Part I, of the Supreme Court of the State of New York held in and for the County of New York, at the County Courthouse in the Borough of Manhattan, City of New York, on the 14th day of May, 1912. Present: Hon. James A. Blanchard, Justice. The Brunswick-Balke Collender Co. of New York, Plaintiff, against Palm Building Company, Defendant. The summons and complaint having been duly served upon the defendant, and the defendant having duly appeared herein and the extensions of time having been duly granted and the defendant having made default in failing to interpose an answer or demurrer to the plaintiff's complaint herein, and a motion for judgment having been thereupon duly made and granted; Now upon reading the summons and complaint herein, the notice of appearance, the affidavit of notice of motion for judgment and due service thereof, and on motion of Charles Goldzier, attorney for the plaintiff (and upon fiKng the opinion of the court), it is Ordered and adjudged that the plaintiff recover judgment for the foreclosure of the lien mentioned and described in the complaint herein; and it is further Ordered and Adjudged that the plaintiff has a hen for the ' From The Brunsmck-Balke Collender Co. v. Palm Building Co., 4 Bradbury's Pl. & Pr. Rep. 644. For complaint from this case, see Form No. 540, ante, page 983; for affidavit to secure writ of seizure, see Form No. 541, ante, page 985. 988 Bradbury's lawyers' manual Judgment; Foreclosure of Lien on Chattel under Conditional Bill of Sale sum of one thousand one hundred dollars, principal and interest, upon the following described chattels, to wit: Two separate pairs of Bowling Alley Beds, with approaches, gutters and re- turn chutes, as contained upon premises Nos. 225 to 229 Sack- man Street in the Borough of Brooklyn, City of New York; together with two double wall score boards for Hearth Pin sets and forty balls for bowling, — being the same personal property referred to and described in writ of seizure which was heretofore granted in this action. And the sheriff of the County of Kings is hereby authorized and directed to seize and sell all and singular the said chattels in like manner as where a sheriff sells personal property by virtue of an execution, and that after the payment of the costs and expenses of such sales and his fees, he apply the proceeds of such sale to the payment of the amount of the hen adjudged as aforesaid and the costs of this action, and it is further Ordered and adjudged that any surplus arising after such application be paid to the defendant and that such surplus be deposited with the Chamberlain of the City of New York for safe keeping, if necessary, until the same shall be claimed by the defendant, and it is further Ordered and adjudged that if after appUcation of the pro- ceeds of such sale as aforesaid, the same should be' insufficient to pay the sum declared a lien as aforesaid, together with the costs of this action; then the sheriff of the County of Kings, under his hand, certify such fact to this court and that upon the fiUng of such certificate a judgment for the deficiency thus arising and certified to be entered in favor of the plaintiff against the defendant, Pahn Building Co., and it is further Ordered and adjudged that the plaintiff have thirty and sixteen one hundredths dollars costs of this action as taxed by the Clerk of this court. Enter, Wm. F. Schneider, J. A. B., Clerk. J. S. C. CHAPTER XLVII PARTITION FORMS NO. PAGE 543 . Petition by or on behalf of in- fant for leave to bring an action in partition 990 Order of surrogate giving leave to infant to bring ac- tion in partition 994 Court order appointing guar- dian ad litem 995 Bond of guardian ad litem, in partition action 997 Notice of lis pendens in parti- tion action 998 Complaint in partition 999 Complaint; another form. . .1003 Notice of motion for judg- ment and appointment of referee to take proof and report liens 1011 Affidavit of regularity on motion for judgment and appointment of referee to take proof and report liens . 1012 552. Order for judgment and ap- pointing referee to take proof and report liens. . . .1015 Motion to confirm referee's report and for interlocu- tory judgment 1018 Interlocutory judgment of sale 1019 544. 545. 546. 547. 548. 549. 550. 551. 553. 554. 556. 557. 558. NO. PAGE 555. Affidavit on motion to con- firm referee's report and for interlocutory judg- ment 1025 Referee's oath 1026 Referee's report 1027 Notice of motion on applica- tion to spend additional sums in advertising prop- erty for sale 1032 559. Affidavit on motion to au- thorize spending of addi- tional sum for advertis- ing 1033 560. Additional affidavit on mo- tion for authority to spend additional sums in adver- tising 1034 561. Notice of motion to confirm referee's report of sale 1038 562. Referee's report of sale 1039 563. Order confirming referee's report of sale 1042 Notice of taxation of costs . . 1044 Bill of costs 1044 Affidavit for extra allowance in partition suit 1046 Final judgment after sale. . . 1058 Final report of distribution by referee 1064 564. 565. 566. 567. 568. • The summons is served in a partition action in the same manner as it is in other actions in courts of record, and this subject is fully covered in Chap. IX, at page 153, on the Summons and Service thereof. Additional forms and hints on procedure in relation to real estate actions for the service of the sununons will be found in Chap. XLIV, on Mortgages on Real Property and the Foreclosure thereof, at page 783. For surplus money proceedings in partition and foreclosure actions see Chapter XLVIII, beginning at page 1085. For exhaustive note on Partition, see 4 Bradbury's Pl. & Pr. Rep. 35. 989 990 Bradbury's lawyers' manual Petition by or on Behalf of Infant for Leave to Bring an Action in Partition NO. PAGE NO. PAGE 569. Notice to lienors to present 574. Final judgment for actual claims 1067 partition 1076 570. Interlocutory judgment for 575. Affidavit to procedure order actual partition and ap- in the nature of a writ of pointment of commission- assistance 1078 ers 1068 576. Order awarding possession in 571. Interlocutory judgment; the nature of a writ of as- after issues tried before sistance 1079 referee; ordering actual 577. Notice of motion to compel partition and appointing purchaser to take title 1080 commissioners 1070 578. Affidavit on motion to compel 572. Oath of commissioners . . . . 1074 purchaser to take title 1081 573. Report of commissioners. . . . 1075 579. Order requiring purchaser to complete purchase 1083 FORM NO. 543 Petition by or on Behalf of Infant for Leave to Bring an Action in Partition ^ (Code Civ. Pro., § 1534) Surrogate's Court, County of In the Matter of the AppHcation of A. B., an Infant, for !eave to bring a partition action. To the Surrogate ^ of the County of Your petitioner, A. B., by this petition,^ respectfully shows: I. That your petitioner * is an infant over the age of fourteen years, to wit, of the age of years. ' The petition and order should be filed with the Clerk of the Surrogate's Court in the county where the order is granted. Rules 2 and 3 of the General Rules of Practice. ' This application must be made to the surrogate and not to the Surrogate's Court and the decree must be made by the surrogate and not by the Surrogate's Court. Code Civ. Pro., § 1534. ' It does not matter whether this application is made by petition or affidavit. Section 1534 of the Code speaks of evidence contained in an affidavit as the basis for the application. Ordinarily a proceeding in the Surrogate's Court is begun by petition. § 2518. But by Code Civ. Pro., § 768, it is provided: "Any proceed- ing which is required by statute to be instituted by petition may also be instituted by an affidavit setting forth the matter which it is required that the petition shall contain." While, therefore, the form herewith given is by petition, it might also be by affidavit. ' The Code (§ 1534) does not specify whether the application for leave to sue PARTITION 991 Petition by or on Behalf of Infant for Leave to Bring an Action in Partition II. That he is a tenant in common (joint tenant) with CD. and E. F., in the premises hereinafter described, and that your petitioner and said C. D. and E. F. do not own any other property ^ in common or as joint tenants. That the lands to which reference is herein made are the following: {description of land). III. That the value of said premises is about the sum of dollars, and that your petit oner's share therein is, according to his best information and belief, worth about the sum of dollars. IV. That said property is unimproved and there is no income shall be made by the infant or by his guardian. Under the general practice, how- ever, it is usual to have the infant make the application where such infant is over the age of fourteen years, and to have the application made by the infant's parent or guardian where the infant is under the age of fourteen years. In the present instance, however, it does not appear from the Code that it is necessary for the infant to have a guardian in order that such an application may be made. The Code merely provides that the surrogate must be satisfied "by affidavit or other competent evidence that the interests of the infant will be promoted by bringing the action. A judgment for a partition or sale shall not be rendered in such an action unless the court is satisfied that the interests of the infant will be promoted thereby, and that fact is expressly recited in the judgment." The surrogate, therefore, must be satisfied that the interests of the infant will be promoted by the partition before he makes the order. But this is not enough. The judge who tries the partition action itself must also be satisfied that the interests of the infant will be promoted by the partition and the judgment must so specify. But of course a guardian ad litem must be appointed before the partition action is brought, even if the surrogate makes an order permitting it to be brought. Where the affidavit is made by a person or by persons other than the infant the foregoing form may be used, with such slight changes as may be necessary to put the allegations in relation to the infant instead of by the infant. The substance of the allegations will be the same in each case. If the affidavit is made by the infant, it would be good practice to support it by the affidavit of one or more adults, in relation to the matters involved, so as to satisfy the surrogate that the interests of the infant will be promoted by the granting of the order permitting the action to be brought. 1 Rule 65 of the General Rules of Practice requires that where there are several parcels of land lying within the State, owned by the same persons in common, no separate action for the partition of a part thereof shall be maintained without the consent of the parties interested therein, or without the special order of the court, made on notice to all parties who have appeared in the action. Therefore careful practitioners include this statement in the affidavit in relation to the procuring of leave for an infant to bring such an action, as this is one of the facts on which the surrogate acts in determining whether or not to grant the order. 992 bradbxjry's lawyers' manual Petition by or on Behalf of Infant for Leave to Bring an Action in Partition therefrom and your petitioner is unable to meet the taxes on said property, or on his share thereof, because he has not suffi- cient funds to meet said charges. Or, That the income from said property is insufficient to meet the taxes, interest, insurance and cost of repairs, and your peti- tioner has not sufficient funds with which to meet such charges, or the proportion thereof which your petitioner is required to meet, and these charges are liable to accumulate to such an extent that your petitioner will lose his entire interest in such property. Or, Your petitioner has no other means with which to pay for his living expenses and education than from the proceeds of the property above described and the income therefrom, and the portion thereof which is derived by your petitioner from such property is very small, amounting to a sum not exceeding dollars per annum, and your petitioner will be unable to pay his living expenses and the necessary expenses of his education, unless said property is sold and your petitioner has the benefit of the avails of such sale. Or, Said property contains buildings which were constructed many years ago and badly need repairs, and such repairs will cost in the neighborhood of dollars, to make the property available for renting purposes; and the portion of said sum which would necessarily be paid by your petitioner is not available, and your petitioner will be unable to raise said sum from any resources which he may have, and without said re- pairs said property will be carried at a loss, which loss will grad- ually eat up your petitioner's interest therein without any benefit to your petitioner. Or, That your petitioner and his co-tenants have disagreed as to the managment of said property and find it absolutely impossible to agree upon a method to be followed in the man- agement and rental of the same, by reason of which said prop- PARTITION 993 Petition by or on Behalf of Infant for Leave to Bring an Action in Partition erty, or a large portion thereof, is not rented, and there is no income arising therefrom at all and there seems to be no pos- sible chance of your petitioner and his said co-tenants reaching an amicable adjustment of their differences of opinion in relation to the same. Or, Assessments for local improvements have been levied against said property and it is impossible for your petitioner to pay his proportionate share. He has no means of meeting said assessment from other resources, and by reason thereof your petitioner is liable to lose his entire interest in said property. Or, {State other facts which make it desirable for the infant's best interests that the property should be partitioned and the infant's share allotted to him or sold.) V. That your petitioner has made earnest efforts to have such property sold or divided so that your petitioner might have his share without the necessity of bringing a partition action, but he has been unable to induce his co-tenants, or either of them, to purchase his share or to have a proper division thereof made in the manner provided by law. VI. No previous application for an order such as is herein requested -has been made. Wherefore your petitioner prays that an order may be made authorizing an action of partition to be brought by your pe- titioner in relation to the lands hereinbefore described. Dated , 19 , G. H., A. B., Attorney for Petitioner, Petitioner. No. 1 Broadway, New York City. 994 Bradbury's lawyers' manual Order of Surrogate Giving Leave to Infant to Bring Action in Partition State of New York 1 County of j A. B., being duly sworn, deposes and says that he is the petitioner named in the foregoing petition; that he has read and knows the contents thereof; that the same is true of his own knowledge except as to the matters which are therein stated to be alleged on information and behef, and that as to those matters he believes it to be true. Sworn to before me, this ] A. B. day of , 19 {Signature and title of officer.)^ FORM NO. 544 Order of Surrogate Giving Leave to Infant to Bring Action in Partition ^ (Code Civ. Pro., § 1534) (Title same as Preceding Form) On reading and filing the petition of A. B., verified the day of , 19 , an infant of the age of years, and the affidavits of and , sworn to respectively the day of " , 19 , and the day of , 19 , by which it appears to the satisfaction of the Surrogate that the interests of A. B. will be promoted by bringing an action for the parti- tion of the premises described in said petition of A. B., Now, on motion of G. H., attorney for said A. B., it is hereby Ordered, that said A. B., an infant, be and hereby is au- thorized to bring an action for the partition of the following described premises: {Description of premises same as in petition.) Dated, , , 19 . Edward Edwards, Surrogate of County. ' See notes to preceding form. PARTITION 995 Court Order Appointing Guardian Ad Litem FORM NO. 545 Court Order ^ Appointing Guardian Ad Litem At Special Term, Part 11,^ of the New York Supreme Court, held in and for the County of New York at the County Court- house therein on the day of , 19 . Present, Hon. James A. O'Gorman, Justice. In the Matter of the Apphcation of - John Jones, an infant over the age of fourteen years, for the ap- pointment of a guardian ad litem. (If for an infant defendant the title should be the same as the partition action.) An application having been duly made by (on behalf of) John Jones, an infant over (under) fourteen years of age, for the appointment of a guardian ad litem for the purpose of (de- fending) bringing an action in partition in the Supreme Court against John Jones, Ely Whitney, Adam Smith and others; Now, on reading and filing the petition of John Jones (Wil- Uam Brown), verified the day of , 19 , the consent of Franklin Brown to become such Guardian, dated and duly acknowledged the day of , 19 , and the affidavit of Franklin Brown, sworn to the day of , 19 , showing that said Franklin Brown is a proper person to be appointed guardian ad litem pursuant to the statutes and rules of court; '■ A guardian ad litem for an infant party in an action for partition can be ap- pointed only by the court. Code Civ. Pro., § 1535. In a partition action a guardian ad litem must give a bond in all cases. Otherwise the proceedings for the appointment are the same as in other actions. See the chapter on Guardian and Ward, page 91. 2 If on notice the order would be made in Special Term, Part I, in New York. 996 Bradbury's lawyers' manual Court Order Appointing Guardian Ad litem , Now, on motion of Elias Sargeant, Esq., Attorney for the petitioner, it is Ordered that FrankUn Brown, Esq., upon quaUfying and fihng the bond as hereinafter provided, be and hereby is ap- pointed guardian ad litem of John Jones, an infant over the age of fourteen years, for the purpose of bringing (defending) an action of partition in the Supreme Court against John Jones, Ely Whitney, Adam Smith and others, to partition the lands specified in said petition; and it is further Ordered that before entering upon his duties as such guard- ian the said Franklin Brown duly execute to the People of the State of New York a bond ^ in the sum of dollars, with sufficient sureties to be approved by the Court, conditioned that the said Franklin Brown will faithfully discharge the trust committed to him as guardian ad litem and to render a just and true account of his guardianship, in any court or place whenever required and that said bond be filed with the Clerk of the Court. Enter, J. A. O'G., Justice of the Supreme Court. (Judge of the County Court.) ' This bond must be issued by a surety company and the penalty must be in double the amount of the money received by the infant, or the bond must be secured by a mortgage on improved and unencumbered real property. Rule 51, General Rules of Practice. If an order appointing a guardian ad litem in a partition suit provides for the filing of a bond the guardian's bond may be filed 7iunc pro tunc even after judg- ment, but if the order is silent as to such a bond the bond cannot be filed nunc pro tunc in any case. Lippert v. Gates, 74 Misc. 36; 133 Supp. 733. A judgment against infants is not void because of the fact that the guardian ad litem did not give a bond. Fox v. Fee, 24 App. Div. 314 ; 49 Supp. 292. A purchaser can refuse title it the infant acted by a guardian without security. Clark V. Clark, 14 Abb. Pr. 299; 29 How. Pr. 479. PARTITION 997 Bond of Guardian Ad Litem, in Partition Action FORM NO. 546 Bond of Guardian Ad Litem, in Partition Action ^ Supreme Court, New York County. In the Matter of the AppUcation of John Jones, an infant over the age of fourteen years, for the appoint- ment of a Guardian ad litem. (If given for a defendant, insert the title of the partition action.) Know all men by these presents that we, Frankhn Brown, as principal, and the Company, a surety company duly authorized to transact business in the State of New York, as surety, are jointly and severally held and firmly bound unto the People of the State of New York in the sum of dollars, which sum well and truly to be paid we bind ourselves, our heirs, executors, administrators, successors and assigns; Whereas the above bounden Franklin Brown has been appointed guardian ad litem of John Jones, an infant over the age of fourteen years, in an action of partition (about to be begun by said John Jones) in the Court, County of , in which is the plaintiff and and others are the defendants. 1 The proceedings for the appointment of a guardian ad litem in a partition suit are the same as they are in other actions in courts of record, except that in all cases the order must require that the guardian furnish a bond. The forms and practice for the appointment of guardians ad litem will be found fully covered in Chapter VI, beginning at page 91, and the subject of guardians ad litem in Article B, of that chapter, beginning at page 57. The surety on a bond of a guardian ad litem in partition must be a surety com- pany authorized to do business in the State or it must be secured by a first mort- gage on real estate. Rule 51, Gen. Rules of Prac. The result of this rule is that practically all such bonds are given by surety companies, all of which have printed forms which are invariably used. 998 Bradbury's lawyers' manual Notice of Lis Pendens in Partition Action Now, the condition of this bond is such that if the said FrankHn Brown shall faithfully discharge the trust conunitted to him as such guardian and shall render a just and true ac- count of his guardianship in any court or place whenever re- quired, then this bond shall be null and void, otherwise to remain in full force and virtue. In witness whereof, the said Franklin Brown has here- unto set his hand and seal and the said Company has caused this instrument to be executed in its corporate name and its corporate seal to be hereunto affixed on this day of , 19 . Franklin Brown, Company, By (Add signatures, acknowledgments and affidavits of justifica- tion in statutory form.) FORM NO. 547 Notice of Lis Pendens in Partition Action Supreme Court, New York County. (Names of all parties, both I plaintiff and defendant.) Notice is hereby given that an action has been commenced and is now pending in this court by the above-named plaintiffs against the above-named defendants for a partition of the following property: {Add description). Dated the day of , 19 . Elias Sargent, Attorney for Plaintiff, No. , Street, Borough of Manhattan, New York City. PARTITION 999 Complaint in Partition To the Clerk of the County of You will please index the above notice as against the name of each of the following defendants: {Add full names of all the defendants) . Dated the day of , 19 . Elias Sargent, Attorney for Plaintiff. FORM NO. 548 Complaint in Partition New York Supreme Court, County of New York. Susan W. Patterson, Plaintiff, against Georgette (or Georgietta) G. Patterson, Henry Patterson Heylman, Susan W. Patterson, and Georgette G. Patterson, as Executrices of and Trustees un- der the Last Will and Testament of Maude H. P. Heylman, de- ceased; Emma L. Manchester, Emily B. Lobb, Defendants. The plaintiff above named for her amended complaint herein by R. & E. J. O'Gorman, her attorneys, alleges on information and belief as follows : First: That Jacob M. Patterson on or about the 31st day of May, 1899, died seized in fee simple absolute of the follow- ing real property, to wit : (description) . Second: That said Jacob M. Patterson left a Last Will and Testament dated the 23d day of November, 1885, which said will was duly proved and admitted to probate in the Surrogate's Court of the County of New York on the 21st 1000 Bradbury's lawyers' manual Complaint in Partition day of June, 1899, and is recorded in said Surrogate's office in Liber 614 of Wills, at page 198 and a copy of which is hereto annexed and made a part of this amended complaint and marked "Exhibit A." Third : That in and by the said will the said testator Jacob M. Patterson devised to his wife Leah Frances Patterson during her life all the rents and profits of his real estate and upon the death of his ss^id wife he devised the residue of his estate including the said real property hereinabove described to his daughters, the plaintiff Susan W. Patterson, the de- fendant Georgette G. Patterson and Maude H. Patterson and his son, Alonzo C. Patterson, in equal shares. Fourth: That said Alonzo C. Patterson died in infancy, intestate, unmarried, and without issue, prior to the death of said Jacob M. Patterson. That said Leah Frances Patterson died on or about the 29th day of June, 1906. Fifth: That said Maude H. Patterson intermarried with one Henry B. Heylman and being seized of one undivided third part or share of the said real property hereinabove described, died on or about the 21st day of September, 1910, leaving a last Will and Testament dated the 7th day of August, 1906, which said will was duly proved and admitted to probate in the Surrogate's Court of the County of New York on the 3d day of November, 1910, and is recorded in said Surrogate's office in Liber 894 of Wills, at page 399, and a copy of which will is hereto annexed and made a part of this amended com- plaint and marked "Exhibit B." Sixth : That Letters Testamentary under the said will of said Maude H. P. Heylman were granted and duly issued on the 3d day of November, 1910, to Susan W. Patterson and Georgette G. Patterson, the Executrices named in said will. Seventh: That said Maude H. P. Heylman left her sur- viving the defendant Henry Patterson Heylman, her only child and left no issue of any deceased child her surviving. Eighth: That the plaintiff, Susan W. Patterson and the defendants, Georgette G. Patterson, and Susan W. Patterson and Georgette G. Patterson as Executrices of and trustees PARTITION 1001 Complaint in Partition under the last Will and Testament of Maude H. P. Heylman, deceased, are seized and possessed in fee simple aS tenants in common of the said real property hereinabove described. Ninth: That the plaintiff Susan W. Patterson is seized in fee simple absolute of one equal undivided third part of the said real property. Tenth: That the defendant, Georgette G. Patterson, is seized in fee simple absolute of one equal undivided third part of the said real property. Eleventh: That the defendants Susan W. Patterson and Georgette G. Patterson are seized in fee simple of one equal undivided third part of the said real property as trustees of the trust created by and under the last Will and Testament of Maude H. P. Heylman, deceased. Twelfth : That the defendants, Henry Patterson Heylman, Emma L. Manchester and Emily B. Lobb have or claim some interest in and to the said real property under and by virtue of the provisions of the said last Will and Testament of Maude H. P. Heylman, deceased. Thirteenth : That the* said real property is so situate and so circumstanced that a partition thereof among the parties entitled thereto according to their respective rights and in- terests cannot be made without great prejudice to the owners thereof. Fourteenth: That all the parties to this action are of full age and sound mind except the defendant Henry Patterson Heylman who is an infant under the age of fourteen years. Fifteenth: That the parties to this action are not the owners in common of any other lands except the said real property hereinabove described. Wherefore the plaintiff prays judgment that a partition and division be made of the said real property among the several parties seized of or entitled thereto according to their respective rights and interests therein or if partition thereof cannot be made without great prejudice to the parties inter- ested therein then that the said real property may be sold and the proceeds of such sale divided among the parties according 1002 Bradbury's lawyers' manual Complaint in Partition to their respective rights and interests therein after the pay- ment of the costs and disbursements of this action, and that the plaintiff may have siich other or further relief as may be just and equitable. R. & E. J. O'Gorman, Attorneys for Plaintiff, 51 Chambers Street, Borough of Manhattan, New York City. State or New York | County of New York J Susan W. Patterson, being duly sworn, deposes and says: that she is the plaintiff named in the foregoing complaint; that she has read the said complaint and knows the contents thereof and that the same is true of her own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters she believes it to be true. Sworn to before me, this 24th ] Susan W. Patterson. day of April, 1911. J Henry B. Hammond, Notary Public, Kings County, Cert, filed in N. Y. Co. PARTITION 1003 Complaint; Another Fonn FORM NO. 549 Complaint ; Another Form ^ County Court, Queens County. Herbert W. Cramp, Plaintiff, against Chester A. Dady and {names of all defendants), Defendants. The plaintiff above named, by Wyckoff, Clarke & Frost, his attorneys, respectfully shows unto this Court, upon informa- tion and belief, as follows : First: That Nathaniel Remsen heretofore, and on or about the 23d day of January, 1853, was seized in fee simple absolute and possessed of certain property situate at Oldfield's Neck (now known as Aqueduct or Jamaica South) in the County of Queens, City and State of New York; that the said Nathaniel Remsen thereafter, and on or about the 23d day of January, 1853, at Jamaica, Queens County, New York, died leaving a last will and testament by which he left a life interest in said property to his wife Amelia Remsen, and from and after the decease or marriage of his said wife, to his two daughters, Rachel Munroe and Phebe Hendrickson, the use of said real property for and during the term of their natural lives and for and after the decease of said Rachel Munroe and Phebe Hen- drickson, or either of them in fee to the children of said Rachel Munroe and Phebe Hendrickson, by their then husbands, one equal undivided one-half to the children of each of said daugh- ters. A more particular description of said real property is as follows : 1 From Cramp v. Dady, 208 N. Y. 599; aff'g without opinion 152 App. Div. 937; 137 Supp. 1116, no opinion. 1004 Bradbury's lawyers' manual Complaint; Another Form All that certain piece or parcel of land, situate, lying and being at Oldfield's Neck (now known as Aqueduct or Jamaica South) in the County of Queens, City and State of New York, bounded and described as follows: Bounded north by road leading from a barn now or formerly of said premises to Ben- nett's Island; bounded west by land and meadow formerly owned by Barnet Bennett; bounded south by a ditch adjoining meadow land now or formerly of Nicholas Ryder; bounded east and northeast by Hawtree Creek and land and meadow now or formerly of Maria Lefferts; containing within said bounds fourteen (14) acres, more or less. Excepting and reserving therefrom so much of said premises as was conveyed by William J. Howard and wife to Anton Rennenberg by deed dated April 7, 1905, and recorded in the office of the Clerk of the County of Queens on April 20, 1905. Second : That the said Nathaniel Remsen left surviving him his said widow, Amelia Remsen, and as his only heirs at law and next of kin he left his two said children, Rachel Munroe and Phebe Hendrickson. That said decedent left a will which was admitted to probate on the 10th day of February, 1853, by the Surrogate of the County of Queens; that letters testamentary were issued to John C. Stoothoff, who has since died, and that no administrator of said decedent's estate has been appointed. Third: That the said Amelia Remsen, the widow of said decedent, died on or about the 13th day of November, 1865. That at the time of the death of said Nathaniel Remsen said Rachel Remsen has had issue by her then present husband, and living at the time of the decease of said Nathaniel Remsen, seven children, to wit : Parmelia Howard, wife of WilUam Van Brunt Howard, Leander Munroe, Charles Munroe, Alice A. Davis, James A. Munroe, George S. Munroe, Alfred A. Mun- roe, and no other issue, and no children were born subsequent to the decease of said Nathaniel Remsen. Fourth: That said Phebe Hendrickson and her husband were living at the time of the death of said Nathaniel Remsen, and has had issue by her then present husband, and living at the time of the death of said testator, and born subsequent to PARTITION 1005 Complaint; Another Form his decease, five children, to wit : Mary Ann Bedell, Antoinette Rooney, Clara Augusta Hendrickson (now Clara Augusta Segur) Georgiana Hendrickson (now Georgiana H. Cornwell) and Leonara Hendrickson (now Leonara Hendrickson Fowler). Fifth: That Charles H. Munroe died intestate and unmar- ried on the 6th day of May, 1872, at and a resident of Jamaica South, Queens County, New York. That Charles H. Munroe left him surviving no parent, but left as his only heirs at law and next of kin said Ahce A. Davis, James A. Munroe, George S. Munroe, Alfred A. Munroe, Leander Munroe and Parmelia M. Howard. That no letters of administration of the estate of Charles H. Munroe were ever issued. Sixth: That said Leander Munroe died intestate and un- married on or about the 13th day of January, 1873, at the City of Omaha, in the State of Nebraska, where he then resided. That said Leander Munroe left him surviving no parent, but left as his sole heirs and next of kin the said Alice A. Davis, James A. Munroe, George S. Munroe, Alfred A. Munroe and Parmelia M. Howard. That no administrator of said deced- ent's estate was ever appointed. Seventh: That said Parmelia M. Howard died at and a resident of Ozone Park, Queens County, New York, on the 17th day of November, 1891, intestate, her husband having predeceased her, leaving no parent but leaving as her sole heirs and next of kin Harriet L. Brown, Adrianna B. Basson, Richard H. Howard, J. Edgar Howard, William A. Howard, Sarah Jane Howard, Mary Alice Anselm and Ella F. Davis. That said decedent left her surviving no other child or children nor any descendants of any deceased child or children, except as stated. That no administrator of said decedent's estate was ever ap- pointed. Eighth: That said Sarah Jane Howard died intestate and unmarried on or about the 25th day of May, 1903, at and a resident of Ozone Park, Queens County, New York. That said Sarah Jane Howard left her surviving no parent, but left as her sole heirs and next of kin her said surviving brothers and sisters, Harriet L. Brown, Adrianna B. Basson, William A. 1006 Bradbury's lawyers' manual Complaint; Another Form Howard, Richard T. Howard, J. Edgar Howard, Mary Alice Anselm and Ella F. Davis. That no administrator of the estate of said Sarah Jane Howard was ever appointed. Ninth: That said Mary Alice Ansekn died intestate on or about the 27th day of November, 1905, at and a resident of the Borough of Brooklyn, City of New York. That said Mary Alice Anselm left her surviving as her sole heirs and next of kin, Jennie I. Anselm, Richard Herbert Anselm and Grace Marion Anselm. That deceased left her surviving her hus- band. Max Anselm. That letters of administration upon said decedent's estate were issued to J. Edgar Howard, a brother of decedent. Tenth: That the said Mary Ann Bedell died intestate on the 31st day of October, 1901, at and a resident of Valley Stream in the County of Nassau. That no administrator of her estate was ever appointed. That said decedent left her surviving no parent, but left her husband William Belknapp — said decedent having previously been married to one Benjamin Bedell, but whether said decedent ever secured a divorce from said Benjamin Bedell is unknown to this plaintiff. Said dece- dent left her surviving her former husband Benjamin Bedell, and as her sole heir at law and next of kin, the defendant Fannie Bedell Sayville, that decedent left her surviving no other children or descendants of any deceased child, except as stated. Eleventh: That said James A. Munroe is married and his wife is the defendant Annie Munroe. That said George S. Munroe is married and his wife is the defendant Alletta Munroe. That said Alfred A. Munroe is married and his wife is the de- fendant Clara Munroe. That said Richard H. Howard is married and his wife is the defendant Annie Howard. That said J. Edgar Howard is married and his wife is the defendant Marie Howard. That said WilUam A. Howard is married and his wife is the defendant Agnes Howard. That plaintiff and defendant Richard H. Anselm were unmarried. Twelfth: That prior to his decease said Nathaniel Remsen and .Amelia Remsen, his wife, mortgaged the premises de- scribed herein, and proceedings were afterwards taken in the PARTITION 1007 Complaint; Another Form Supreme Court to foreclose said mortgage and sell said premises, and judgment of foreclosure and sale was duly made and en- tered and the premises were, on June 22, 1854, sold to one John G. Lamberson and Everett V. W. Snedeker. That in said foreclosure suit only the widow and the said two children of Nathaniel Remsen were joined as parties defendant. That by said foreclosure suit the rights of the widow and the life tenants were cut off. That by several mesne conveyances the premises were conveyed to William Van Brunt Howard and by said WiUiam Van Brunt Howard and Parmelia Howard, his wife (one of the said children of Rachel Munroe), to Rich- ard Henry Tucker. Thirteenth: That said William Van Brunt Howard, by mortgage dated March 20, 1856, acknowledged March 25, 1856, and on March 25, 1856, recorded in the office of the Clerk of the County of Queens, mortgaged said premises to Everett V. W. Snedeker. That by assignment of mortgage bearing date May 1, 1862, acknowledged August 27, 1862, and recorded August 13, 1864, in the office of the Clerk of the County of Queens, said Everett V. W. Snedeker assigned said mortgage to John Drew. - That said John Drew died May 22, 1878, leaving a last will and testament by which he appointed Henry Drew, John Drew, Jr., and John D. Snedeker, executors. That said will was admitted to probate by the Surrogate of the County of Kings on June 11, 1878, and all of said executors qualified. That John D. Snedeker, executor, etc., is the sole surviving executor. That no interest has been paid upon said bond and mortgage for more than forty years as plaintiff is informed and believes, and that no action has been begun to foreclose the mortgage or for the collection of any portion of the mortgage indebtedness. Fourteenth : That on or about the 29th day of May, 1869, a suit was begun for the partition of said real property by said Richard H. Tucker. That said WiUiam Van Brunt Howard, Pa;rmelia Howard, his wife, Leander Munroe, Charles Munroe, AUce A. Davis, James A. Munroe, George S. Munroe, Alfred A. Munroe, Mary Ann H. Bedell, Antoinette Rooney, Clara 1008 Bradbury's lawyers' manual Complaint; Another Form Augusta Hendrickson, Georgiana Hendrickson and Leonora Hendrickson were joined as parties defendant, and were each respectively served with a copy of the summons and complaint therein. That during the progress of the action the said Mary Ann Bedell and the said Leander Munroe and Charles Munroe, by unrecorded deeds dated November 23, 1869, conveyed all their right, title and interest in said premises to the said Rich- ard H. Tucker, the plaintiff in said suit. That thereafter and on the 27th day of April, 1870, an order and interlocutory judgment was made and thereafter duly entered providing for the sale of said premises and appointing Gerard H. Stevens, referee, to sell. That said referee, pursuant to said interlocu- tory judgment, sold said premises on or about the day of June, 1870, to said Richard H. Tucker, and that there- after and on the 9th day of July, 1870, an order was duly made and entered ratifying and confirming the said sale. Fifteenth: That thereafter and on the 25th day of Febru- ary, 1873, by a full covenant and warranty deed Richard H. Tucker conveyed said premises to Richard Sands Tucker, and by several mesne devises and conveyances, said premises and all the rights of said Richard H. Tucker therein were conveyed to Chester A. Dady and Laura M. Miles and by deed dated the 23d day of February, 1910, a one-twentieth interest in said premises was conveyed by Laiira M. Miles and Chester A. Dady and Loretta T. Dady, his wife, to this plaintiff. Sixteenth : That no deed of the premises by the said Gerard M. Stevens, referee, to Richard H. Tucker, appears of record, but plaintiff is informed and believes that three hundred and eighty dollars was paid by said Richard H. Tucker on the date of the said sale — that sum being one-tenth of the price bid as aforesaid, and subsequently the terms of sale were in all respects complied with and the balance of the price bid for the premises was paid to said referee and the referee's deed therefor was delivered to said Richard H. Tucker. That said Richard J. Tucker entered into possession of said premises under claim of title exclusive of any other right and most PARTITION 1009 Complaint; Another Form particularly exclusive of any right in any of the parties to the said partition suit, founding such claim upon the sale of the premises to him by the said referee as being a conveyance of the premises in question. That there has been a continued occupation and possession of the said premises under such claim for thirty-nine and one-half years before this action by this plaintiff and the defendants Chester A. Dady, Loretta T. Dady, his wife, Laura M. Miles, and those under whom this plaintiff and said defendants Miles and Dady claim as aforesaid. Seventeenth : That during all said time said premises, have been cultivated or improved, leased and rented, to tenants, by this plaintiff and the defendants Miles and Dady and those under whom they claim as aforesaid, and held and used ad- versely and exclusively for the use of this plaintiff and said de- fendants Miles. and Dady, and those under whom they claim title to said premises. Eighteenth: That neither said defendants, Alice A. Davis, James A. Munroe, Annie Munroe, his wife, George S. Munroe, Alletta Munroe, his wife, Alfred A. Munroe, Clara Munroe, his wife, Antoinette Rooney, Clara Augusta Segur, Georgiana H. Cornwell, Leonora Hendrickson- Fowler, Benjamin Bedell, William Belknapp, Fannie Bedell Sayville, Lillie Farrell, Mary Ann Wright, Harriet L. Brown, Adrianna B. Basson, Richard H. Howard and Annie Howard, his wife, J. Edgar Howard and Marie Howard, his wife, William A. Howard and Agnes Howard, his wife, Ella F. Davis, Jennie I. Anselm, Richard Herbert Anselm, Grace Marion Anselm and Max Anselm, nor any an- cestor, predecessor or grantor of those said defendants, was seized or possessed of the premises described in the complaint, or any part thereof, within thirty-nine and one-half years be- fore the commencement of this action, but that said plaintiff and said defendants, Chester A. Dady, Loretta T. Dady, his wife, and Laura M. Miles, their predecessors and grantors, and devisors of their predecessors and grantors, have held and possessed the premises adversely to the title of §aid defendants, Alice A. Davis, James A. Munroe, Annie Munroe, his wife, George S. Munroe, Alletta Munroe, Alfred A. Munroe, Clara 1010 Bradbury's lawyers' manual Complaint; Another Form Munroe, his wife, Antoinette Rooney, Clara Augusta Segur, Georgiana H. Cornwell, Leonora Hendrickson Fowler, Ben- jamin Bedell, William Belknapp, Fannie Bedell Sayville, Lillie Farrell, Mary Ann Wright, Harriet L. Brown, Adrianna B. Basson, Richard H. Howard and Annie Howard, his wife, J. Edgar Howard and Marie Howard, his wife, William A. Howard and Agnes Howard, his wife, Ella F. Davis, Jennie I. Anselm, Richard Herbert Anselm, Grace M,arion Anselm and Max Anselm and of any ancestor, predecessor or grantor of said defendants, for thirty-nine and one-half years last past, before the commencement of this action under a claim of title in fee exclusive of any other right. Nineteenth : That the plaintiff Herbert W. Cramp is seized in fee simple absolute and possessed of an undivided one- twentieth of said premises. That the defendant Chester A. Dady is seized in fee simple absolute and possessed of an un- divided nineteen-twentieths of said premises, subject to the inchoate right of dower of his wife, Loretta T. Dady. That the defendant Laura M. Miles is seized in fee simple absolute and possessed of an undivided 19-40th of said premises. Twentieth: That none of the other defendants have any right, title or interest in said premises, except the defendant People's Trust Company which holds a first mortgage, a hen upon said premises, and other properties as well, bearing date the 24th day of December, 1908, and recorded in the" office of the Clerk of the County of Queens, in Liber 1145, page 79, on the 24th day of December, 1908. That said People's Trust Company is a domestic corporation. That the rights of the plaintiff and of said defendants Miles and Dady are subject and subordinate to and encumbered by said mortgage. Twenty-first: That the aforesaid plaintiff and defendants Dady and Miles are possessed of said real property and are seized thereof in fee simple absolute, and are the only persons having any right, title, estate or interest in or liens upon the said real property, except the said People's Trust Company, and that the said premises are the only real property owned by said parties as tenants in common in the State of New York. PARTITION 1011 Notice of Motion for Judgment and Appointment of Referee That the same is so situated that it is not possible to make an actual partition among the several owners thereof. Twenty-second: That none of the parties hereto has con- veyed away his or her share or interest in said real property or any part thereof, and plaintiff further shows that there is no interest or ownership in said property other than as above set forth, and that there is no general or specific lien or encum- brance upon the property herein mentioned except the possible lien of taxes, nor is there any specific lien appearing of record on the undivided share of any party to this action, nor any lien thereon except the possible lien of taxes. Wherefore, plaintiff demands judgment for a partition and division of said property according to the respective rights of said parties, or if a partition thereof cannot be made without great prejudice to the owners thereof, then for a sale of said real property and a division of the proceeds between the parties according to their respective rights and interests, and that the costs and disbursements of this action be first paid out of the proceeds of said sale, and that plaintiff have such other and further judgment or relief as the court may deem just. Wyckoff, Clark & Frost, Attorneys for Plaintiff, No. 215 Montague Street, Borough of Brooklyn, New York City. FORM NO. 550 Notice of Motion for Judgment and Appointment of Referee to take Proof and Report Liens {Title of Action) Please take notice, that upon the affidavit of Edward J. O'Gorman, verified July 31st, 1911, a copy of which is hereto annexed, and upon the smmnons and complaint herein, and the amended sximmons and complaint herein, and upon the proofs of service of the amended summons and complaint and 1012 bradbuky's lawyers' manual Affidavit of Regularity on Motion for Appointment of Referee to Take Proof the notices of appearance annexed to the aforesaid aflfidavit, a motion will be made at a Special Term of the Supreme Court, Part I thereof, to be held at the County Courthouse in the Borough of Manhattan, City of New York on the 23d day of August, 1911, at 10:30 o'clock in the forenoon or as soon there- after as counsel can be heard, for judgment for the relief de- manded in the complaint and for an order referring this action to some suitable person to be appointed by the Court as Referee, to take proof of the plaintiff's title and interest in the premises and of the several matters set forth in the amended complaint, and to ascertain and report the rights and interests of the several parties in the premises described in the complaint, and an abstract of the conveyances under which the same are held, and to take proof of the facts and circumstances set forth in the said amended complaint, and to ascertain and report what liens and encmnbrances, if any, there may be upon the prop- erty and the amounts due thereon, and whether the said real property is so circumstanced that an actual partition thereof cannot be made without great prejudice to the owners, and to ascertain and report whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party; and for the costs of this motion; and for such other and further order, judgment or relief as to the Court may seem just and proper. Dated, New York, August 18, 1911. R. & E. J. O'GORMAN, Attorneys for Plaintiff. To: (All Attorneys who have appeared.) FORM NO. 551 Affidavit of Regularity on Motion for Judgment and Appointment of Referee to take Proof and Report Liens (Title of Action) County of New York, ss: Edward J. O'Gorman, being duly sworn, deposes and says: I am one of the attorneys for the plaintiff in the above- PARTITION 1013 Affidavit of Regularity on Motion for Appointment of Referee to Take Proof entitled action. This action was brought for the partition or sale of four certain parcels of real property situate in the Boroughs of Manhattan and the Bronx of the City of New York, in the County of New York, more particularly described in the amended complaint heretofore filed herein. The original sum- mons and complaint, and a notice of pendency of action, were duly filed in the office of the Clerk of the County of New York on the 11th day of November, 1910. By an order of this Court, entered and filed herein on May 5th, 1911, the summons and complaint were amended and the plaintiff was granted leave to file and serve such amended sum- mons and complaint, and to file an amended notice of pendency of action. Such amended summons and complaint, and amended notice of pendency of action, were duly filed in said County Clerk's office on the 5th day of May, 1911. The defendants Georgette G. Patterson and Emily B. Lobb have appeared in this action by Herbert A. Knox, Esq., their attorney, and demanded notice of all proceedings herein. A copy of the notice of such appearance is hereto annexed. The defendant Hem-y Patterson Heylman, an infant under the age of fourteen years, was served with the summons and a copy of the amended complaint herein on May 9, 1911, and on the same day copies of said summons and amended com- plaint were served upon Henry B. Heylman, the father of said infant, with whom he resides, as appears by the affidavit of John Kadel, verified May 10, 1911, hereto annexed. By an order of this court, duly entered and filed herein on May 25, 1911, said Henry B. Heylman was appointed guardian ad litem of said infant defendant, and he has duly qualified as such guardian ad litem by filing the bond required by said order. The said infant defendant, by his said guardian ad litem, has interposed an answer herein, being the usual general infant's answer not controverting any of the allegations of the plaintiff's complaint, and submitting his rights to the protection of the court. The defendants Susan W. Patterson and Georgette G. Patterson, as Executrices of and Trustees under the last Will 1014 Bradbury's lawyers' manual Affidavit of Regularity on Motion for Appointment of Referee to Take Proof and Testament of Maude H. P. Heylman, deceased, have ap- peared herein by Herbert A. Knox, Esq., their attorney, and demanded notice of all proceedings herein. Said defendants have interposed an answer, admitting each and all of the allega- tions in the said amended complaint contained, and praying for partition or sale as therein prayed for. Said notice of appear- ance is hereto annexed. The defendant, Emma L. Manchester has appeared herein by Messrs. Benjamin and Taylor, her attorneys, and demanded notice of all proceedings herein. Said defendant has inter- posed an answer admitting the allegations contained in the amended complaint herein. Each and every one of the defendants herein was at the time of the commencement of this action and now is of full age and of sound mind except the defendant, Henry Patterson Heyl- man, who is an infant, under the age of fourteen years. No answer or demurrer herein has been interposed by any defendant and no defendant has appeared herein except as above stated; and the time for each and all of said defendants to appear, answer or demur, has long since expired, and has not been extended and each and every one of said defendants is in default, except as above, stated. The said real property described in the amended complaint herein is so circumstanced that a partition thereof cannot be made without great prejudice to the owners thereof, due regard being had to the power of the Court to decree compensation for equality of partition and the ability of the parties to pay a reasonable compensation to produce such equality. There are no outstanding liens upon the said property, nor upon the separate interests of any of the parties of this action, to the best of my knowledge, information and belief, except tax and assessment liens, and except a mortgage of four thou- sand dollars on parcel 4 as described in said amended com- plaint. Wherefore plaintiff prays for judgment for the relief de- manded in the amended complaint and for an order, of reference to take proof of plaintiff's title and interest in the premises, and PARTITION 1015 Order Appointing Referee to Take Proof and Report Liens of the several matters set forth in the amended complaint; and to ascertain and report the rights and interests of the several parties in the premises and an abstract of the conveyances by which the same are held, and to take proof of the facts and cir- cumstances stated in the said amended complaint. No previous application has been made to this or any other Court or judge for such an order herein. Sworn to before me, this ] E. J. O'Gorman. 31st day of July, 1911. FORM NO. 552 Order for Judgment and Appointing Referee to take Proof and Report Liens At a Special Term, Part I, of the Supreme Court held in and for the County of New York, at the County Courthouse in the Borough of Manhattan, City of New York, on the 23d day of August, 1911. Present: Hon. Henry Bischopf, Justice. (Names of all parties.) This action having been commenced for the partition or sale of certain real property situated in the Boroughs of Manhattan and the Bronx, in the City of New York, and County of New York, owned by the plaintiff and defendants as tenants in common, more particularly described in the amended complaint herein; and the original summons, complaint and notice of pendency of this action having been duly filed herein, in the office of the Clerk of the County of New York on the Uth day of November, 1910; and an amended summons and com- plaint, and an amended notice of pendency of action, having been duly filed herein in said Clerk's office on the 5th day of May, 1911, pursuant to an order of this Court, duly entered and filed herein on the same day, and proof having been made to my satisfaction by the affidavit of John Kadel, verified 1016 Bradbury's lawyers' manual Order Appointing Referee to Take Proof and Report Liens herein on the 10th day of May, 1911, that the amended sum- mons and complaint were duly personally served on May 9th, 1911, upon the infant defendant Henry Patterson Heylman, and also upon Henry B. Heylman, the father of said infant, with whom he resides; and it further appearing that the defendants Georgette G. Patterson and Emily B. Lobb have appeared herein by Herbert A. Knox, Esq., their attorney, and demanded notice of all proceedings herein, and that the defendants Susan W. Patterson and Georgette G. Patterson, as Executrices of and Trustees under the last Will and Testament of Maude H. P. Heylman, deceased, have appeared herein by Herbert A. Knox, Esq., their attorney, and demanded notice of all proceedings herein, and have interposed an answer admitting all the allega- tions of the amended complaint, and that the defendant Emma L. Manchester has appeared herein by Messrs. Benjamin & Taylor, her attorneys, and demanded notice of all proceedings herein, and has interposed an answer admitting the allegations contained in the amended complaint herein, and that the infant defendant, Henry Patterson Heylman, by Henry B. Heylman, his guardian ad litem, has interposed the usual general infant's answer not controverting any of the allegations of the amended complaint; and it appearing that the time to answer or demur has expired as to each and all of the defendants herein, and that no answer or demurrer has been interposed by any defendant in this action, except as above recited, and that none of the defendants is an infant or an absentee, except the defendant Henry Patterson Heylman who is an infant imder the age of fourteen years, and has answered by his guardian ad litem, as above recited; Now ON READING AND FILING the affidavit of Edward J. O'Gorman, verified July 31st, 1911, and the proof of service and notices of appearance thereto annexed, and the proof of due service of notice of this motion and upon all the papers and proceedings heretofore had herein, and on motion of R. & E. J. O'Gorman, attorneys for the plaintiff, said Henry B. Heylman, Esq., guardian ad litem appearing and not opposing, it is PARTITION 1017 Order Appointing Referee to Take Proof and Report Liens Ordered that the application for judgment for the relief demanded in the complaint be and the same hereby is granted, and it is further Ordered that it be referred to Richard M. Henry, Esq., counsellor at law of the City of New York, to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the amended complaint; and to ascertain and report the rights and interests of the several parties in the premises described in the amended complaint, and an abstract of the conveyances under which the same are held; and to take proof of the facts and circumstances set forth in the amended complaint; and to ascertain and report what liens and encum- brances, if any, there may be upon the property, and the amounts due thereon, and whether the said real property is so situated that an actual partition thereof cannot be made with- out great prejudice to the owners; and if he arrives at the con- clusion that a sale thereof shall be necessary, then to specify the same in his report, together with the reasons which render a sale necessary; and it is further Ordered that said referee ascertain and report whether there is any creditor, not a party to the action, who has a lien on the undivided share or interest of any party, and if any party produces a search or searches certified by a title insur- ance company organized and doing business under the laws of this State, and it appears therefrom and by the affidavits, if any, produced therewith that there is no such outstanding lien, then it is ordered that any further reference, and the ad- vertising, provided for by §§ 1561 and 1562 of the Code of Civil Procedure, be dispensed with; and it is further Ordered, that the said referee make a report of all the matters so referred to him with all convenient speed. Enter, H. B., J. S. C. 1018 Bradbury's lawyers' manual Motion to Confirm Referee's Report and for Interlocutory Judgment FORM NO. 553 Motion to Confirm Referee's Report and for Interlocutory Judgment (Title of Action) Please take notice that the report of Richard M. Henry, Esq., the Referee duly appointed by an order herein dated the 23d day of August, 1911, was duly filed in the office of the Clerk of the County of New York on the 18th day of December, 1911, and a true copy of said report is herewith served upon you. And please take further notice that upon the said Referee's report and upon the affidavit of Edward J. O'Gorman, verified the 21st day of December, 1911, & copy of which is herewith served upon you, and upon all the proceedings in this action, a motion will be made at a Special Term of the Supreme Court, Part I thereof to be held at the County Courthouse in the Borough of Manhattan, City of New York on the 29th day of December, 1911, at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard for an interlocutory judg- ment confirming the said Referee's report and directing the sale of the premises described in the amended complaint herein and dispensing with any further reference and the advertising prescribed by Sections 1561 and 1562 of the Code of Civil Procedure, and for such other and further relief as may be proper. And please take further notice that a proposed interloc- utory judgment in the form hereto annexed will be presented for signature to the Hon. Nathan Bijur, Justice of the Supreme Court, at his Chambers at the County Courthouse in the Borough of Manhattan, City of New York, on the 29th day of December, 1911, at 10:30 o'clock in the forenoon. Dated, New York, December 21st, 1911. R. & E. J. O'Gorman, Attorneys for Plaintiff. To: {All attorneys who have appeared.) PARTITION 1019 Interlocutory Judgment of Sale FORM NO. 554 Interlocutory Judgment of Sale ' At a Special Term of the Supreme Court of the State of New- York, Part I thereof, held in and for the County of New York at the County Courthouse in the Borough of Manhattan, City of New York, on the 2d day of January, 1912. Present: Hon. Nathan Bijur, Justice. Susan W. Patterson, Plaintiff, against Georgette (or Georgietta) G. Pat- terson; Henry Patterson Heyl- man; Susan W. Patterson and Georgette G. Patterson, as Ex- ecutrices of and Trustees under the Last Will and Testament of Maude H. P. Heylman, deceased ; Emma L. Manchester; Emily B. Lobb, Defendants. This action having been brought on for hearing upon the pleadings and proceedings herein and upon an application for an interlocutory judgment for the relief demanded in the complaint and amended complaint herein, and it appearing that each and all the defendants herein have been duly per- sonally served with the summons herein within this State or have voluntarily appeared herein by attorney more than twenty days since, and it further appearing that the defendants Georgette G. Patterson and Emily B. Lobb have appeared ' A referee to sell under a judgment has no discretion, but must follow the terms of the judgment, and if the purchaser desires to have certain liens credited on the purchase price, which such purchaser is required by the judgment to pay to the referee, this must be accomphshed by amendment of the judgment. Kleine v. Desola. 3 Bradbury's Pl. & Pr. Rep. 579. 1020 Bradbury's lawyers' manual Interlocutory Judgment of Sale herein by Herbert A. Knox, Esq., their attorney, and demanded notice of all proceedings herein, and that the defendants Susan W. Patterson and Georgette G. Patterson, as Executrices of and Trustees under the last Will and Testament of Maude H. P. Heylman, deceased, have appeared herein by Herbert A. Knox, Esq., their attorney, and demanded notice of all proceedings herein, and have interposed an answer admitting all the allegations of the amended complaint, and that the defendant Emma L. Manchester has appeared herein by Messrs. Benjamin & Taylor, her attorneys, and demanded notice of all proceedings herein, and has interposed an answer admitting the allegations contained in the amended complaint herein, and that the infant defendant, Henry Patterson Heyl- man, by Henry B. Heylman, his guardian ad litem, has inter- posed the usual general infant's answer not controverting any of the allegations of the amended complaint; and it appearing that the time to answer or demur has expired as to each and all of the defendants herein, and that no answer or demurrer has been interposed by any defendant in this action, except as above recited, and that none of the defendants is an infant or an absentee, except the defendant Henry Patterson Heylman who is an infant under the age of fourteen years, and has an- swered by his guardian ad litem, as above recited; and an order having been made herein dated the 23d day of August, 1911, referring it to Richard M. Henry, Esq., to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the amended complaint; and to ascertain and report the rights and interests of the several parties in the premises described in the amended complaint, and an abstract of the conveyances under which the same are held; and to take proof of the facts and circumstances set forth in the amended complaint; and to ascertain and report what liens and encum- brances, if any, there may be upon the property, and the amounts due thereon, and whether the said real property is so situated that an actual partition thereof cannot be made with- out great prejudice to the owners; and if he arrives at the con- clusion that a sale thereof shall be necessary, then to specify PARTITION 1021 Interlocutory Judgment of Sale the same in his report, together with the reasons which render a sale necessary; and the said Referee having duly made his report dated the 6th day of December, 1911, and filed in the office of the Clerk of the County of New York on the 18th day of December, 1911; Now, upon the summons and complaint in this action, and the notice of pendency thereof filed in the office of the Clerk of the County of New York on the 11th day of November, 1910, and upon the amended summons and complaint herein and the amended notice of pendency of action filed in the said Clerk's office on the 5th day of May, 1911, and upon the report of the said Referee duly filed in said Clerk's office on the 18th day of December, 1911, and upon the affidavit of Edward J. O'Gorman verified herein on the 21st day of December, 1911, and upon the proof of due service of notice of this motion upon the respective attorneys for all the parties to this action, and upon the guardian ad litem for the infant defendant, and upon all the papers and proceedings heretofore had herein, and upon motion of R. & E. J. O'Gorman, attorneys for the plaintiff, said Henry B. Heylman, guardian ad litem, appearing and not opposing; it is Ordered, adjudged and decreed that the said report of the said Referee be and the same hereby is approved and in all respects ratified and confirmed; and it is further Ordered, adjudged and decreed that the rights, shares and interests of the parties to this action in the real property mentioned and described in the amended complaint herein are as follows : ' The plaintiff Susan W. Patterson is seized in fee simple of one equal undivided third part or share of the said real property. The defendant Georgette G. Patterson is seized in fee simple of one equal undivided third part or share of the said real property. The defendants Susan W. Patterson and Georgette G. Patter- son, as Trustees of the trust created by and under the last will and testament of Maude H. P. Heylman, deceased, for the benefit of the defendant Henry Patterson Heylman, are seized 1022 Bradbury's lawyers' manual Interlocutory Judgment of Sale in fee simple of one equal undivided third part or share of the said real property. The defendant Henry Patterson Heylman has no right or interest in the real property described in the said amended complaint. The defendants Emma L. Manchester and Emily B. Lobb have not nor has either of them any title or interest in the said real property described in the said amended complaint. The plaintiff Susan W. Patterson, the defendant Georgette G. Patterson and the defendants Susan W. Patterson and Georgette G. Patterson as Executrices of and Trustees under the last Will and Testament of Maude H. P. Heylman, de- ceased, are in possession of the said real property and are the owners thereof in fee simple as tenants in common. And the said Referee having reported that in his opinion the said lands and premises described in the said amended com- plaint are so situated that an actual partition thereof cannot be made without great prejudice to the owners thereof and the Court being satisfied that such report is just and correct and that a sale of said premises is both desirable and necessary, in order to conserve the rights of the parties to this action, it is Ordered, adjudged and decreed that the said real prop- erty mentioned and described in the amended complaint herein, to wit: {description) and all the estate, right, title and interest of the parties to this action whether present or future, vested or contingent of dower, curtesy or otherwise and the rights to which any other person might hereafter become en- titled through them or either of them in said premises, be sold at public auction in the County of New York where the said premises are situated by or under the direction of Richard M. Henry, Esq., who is herebj?^ appointed Referee for the pur- pose of making such sale; that the said Referee give public notice of the time and place of such sale according to law and the rules and practice of this Court; and that any of the parties hereto may become the purchaser or purchasers of the said premises at such sale ; and the said Referee is hereby authorized to allow the taxes, assessments and water rents and any other PARTITION 1,023 Interlocutory Judgment of Sale encumbrances which at the time of such sale are liens upon the said property or any part thereof, out of the purchase money, provided that the purchaser or purchasers shall at or before the time of such sale produce to the said Referee due proof of said liens and proof of the payment thereof; that immediately after completing such sale the said Referee shall make and file with the Clerk of the County of New York his report thereof and of all his proceedings and that after such sale shall have been confirmed he shall execute a deed or deeds of the premises sold to the purchaser or purchasers at such sale on their complying with the conditions of such sale ; and that such sale be valid and effectual forever; that such Referee on receiving the proceeds of sale shall immediately deposit the said proceeds in Guaranty Trust Company of New York and thereafter make the following payments therefrom, and his checks drawn for that purpose shall be paid by the said depositary; that out of said proceeds of said sale he pay the costs of this proceeding; that he also pay the expenses of the sale and all taxes, assessments and water rates which are a lien on said premises, if any, and redeem the same from all sales for such liens, or if any thereof were or are a lien upon a part only that he pay the same out of the pro- ceeds of such part, unless such liens shall be allowed to such purchaser as hereinabove authorized ; that the question of costs and allowances herein be and the same hereby is reserved until the coming in of the Referee's report of sale herein; it is further Ordered, adjudged and decreed that each party to this action is hereby required on demand of the purchaser or pur- chasers of said premises to deliver to such purchaser or pur- chasers all title deeds or writings under the control of such party that relate wholly to the premises bought by such pur- chaser or purchasers or to any part thereof; that the piu'chaser or purchasers of said premises after such sale be let into posses- sion and that each party or other person upon whom this judg- ment is binding who may be in possession of the premises purchased or any part thereof is hereby directed to deliver pos- session of the same to the purchaser or purchasers upon produc- tion of the Referee's deed; that said Referee take receipts for 1024 bradbuey's lawyers' manual Interlocutory Judgment of Sale all payments herein directed or authorized to be made and file them with his report thereon; that the said Referee report to the Court his proceedings subsequent to those included in his report of sale hereinbefore required. And it appearing from the said Referee's report heretofore filed herein and from the said affidavit of Edward J. O'Gorman verified December 21st, 1911, that the plaintiff produced and introduced in evidence before the said Referee four searches certified by the Lawyers' Title Insurance & Trust Company, a title insurance company organized and doing business under the laws of the State of New York, covering the four parcels of land described in the amended complaint herein in and by which searches it appears that there is no general or specific lien or encumbrance on the whole premises or upon any undivided share or interest thereof held by any person either a party to this action or otherwise except as set forth in his said report; it is further Ordered, adjudged and decreed that any further reference to ascertain whether there is any creditor not a party who has a lien on the undivided share or interest of any party, or any advertisement for the same is hereby dispensed with; and it is further Ordered, adjudged and decreed that any party to this action may apply to the Court at the foot of this judgment for further directions or relief. Enter, W. B., J. S. C. PARTITION 1025 Affidavit on Motion to Confirm Referee's Report FORM NO. 555 Affidavit on Motion to Confirm Referee's Report and for Interlocu- tory Judgment {Title of Action) State of New York 1 County of New York j Edward J. O'Gorman, being duly sworn, deposes and says: I am one of the attorneys for the plaintiff in the above-entitled action. This action was brought for the partition or sale of certain real property situated in the Boroughs of Manhattan and the Bronx in the City and County of New York. Each and all of the parties herein have duly appeared herein by attorney and on due proceedings heretofore taken an order was duly made and entered herein dated August 23, 1911, whereby it was referred to Richard M. Henry, Esq., to tak6 proof of the plain- tiff's title and interest in the premises, etc., being an order in the usual form in partition actions. By said order the said Referee was further directed to ascer- tain and report whether there is any creditor not a party to the action who has a lien on the undivided share or interest of any party, and if any party should produce a search or searches certified by a title insurance company organized and doing business under the laws of this State and it should appear therefrom and by the affidavits, if any produced therewith, that there is no such outstanding lien, then it was ordered that any further reference and the advertising provided for by Sections 1561 and 1562 of the Code of CivU Procedure should be dispensed with. This action duly came on for a hearing before said Referee who has made his report dated December 6, 1911, and duly filed in the office of the Clerk of the County of New York on December 18, 1911. Upon the said hearings before the said Referee the plaintiff produced and introduced in evidence searches duly certified 1026 Bradbury's lawyers' manual Referee's Oath by the Lawyers' Title Insurance & Trust Company covering the four parcels of real property described in the said amended complaint and from said searches it appears that there is no person or creditor not a party to this action who has any claim or lien on the said real property or on the undivided share or interest therein of any party to the action. The said four searches are annexed to the report of the said Referee heretofore filed in the office of the Clerk of the County of New York on December 18, 1911. The referee in the said report further reports that no person not a party to the action appeared before him to prove any claim or lien against the share of any of the parties herein in the property except that there was proved before him an unrecorded mortgage of $4,000 bearing interest from April 24, 1911, at five per cent per annum, covering Parcel 4 as described in said amended complaint. An interlocutory judgment directing the sale of the said premises as described in the amended complaint in accordance with the recommendations contained in the said report of the said Referee is now desired. It is further desired that an order be made dispensing with any further reference for creditors and the advertising provided for by Sections 1561 and 1562 of the Code of Civil Procedure. Sworn to before me, this 21st 1 E. J. O'Gorman. ■ day of December, 1911. J John Kadel, Commissioner of Deeds, City of New York. FORM NO. 556 Referee's Oath (Title of Action) City and County of New York, ss. I, Richard M. Henry, the Referee appointed by an order of this Court, made and entered in the above-entitled action PARTITION ' 1027 Referee's Report bearing date the twenty- third day of August, 1911, to take proof of the plaintiff's title and interest in the premises and of the several matters set forth in the amended complaint and to ascertain and report the rights and interests of the several parties in the premises described in the amended complaint and to do such other acts and to take such other proofs as will more fully appear by reference to such order, do solemnly swear that I will faithfully and fairly determine the questions referred to me, and make a just and true report thereon, according to the best of my understanding. Sworn to before me, this 15th day of September, 1911. Rich. M. Henry. FORM NO. 557 Referee's Report (Title of Action) To THE Supreme Court of the State of New York. I, Richard M. Henry, Referee appointed by an order of this Court made and entered in the above-entitled action and bear- ing date the 23d day of August, 1911, to take proof of the plain- tiff's title and interest in the premises and of the several matters set forth in the amended complaint and to ascertain and report the rights and interests of the several parties in the premises described in the amended complaint, and an abstract of the conveyances under which the same are held, and to take proof of the facts and circumstances set forth in the amended com- plaint and to ascertain and report what liens and encumbrances, if any, there may be upon the property and the amounts due thereon and whether the said real property is so situated that an actual partition thereof cannot be made without great prejudice to the owners, and if I arrive at the conclusion that a sale thereof shall be necessary, then to certify the same, in my report and to give the reasons which render a sale necessary; and further to ascertain and report whether there is any cred- 1028 BRADBURY'S LAWYERS* MANUAL Referee's Report itor not a party to the action who has a lien on the undivided share or interest of any party and to make a report of all the matters so referred to me with all convenient speed, do respect- fully report as follows : That before proceeding to a hearing of the matters so referred to me I took the statutory oath which is hereto annexed. That upon the several hearings of the said reference I was attended by the following attorneys : Messrs. R. & E. J. O'Gorman, attorneys for the plaintiff; Henry B. Hammond, Esq., of counsel; Messrs. Benjamin & Taylor, attorneys for defendant Emma L. Manchester; Wey- land E. Benjamin, Esq. and John H. Taylor, Esq. of counsel; Henry B. Heyhnan, Esq., Guardian ad litem for the defendant Henry Patterson Heyhnan; Herbert A. Knox, attorney for defendants Georgette G. Patterson and Emily B. Lobb, also for Susan W. Patterson and Georgette G. Patterson as Exec- utrices of and Trustees under the last Will and Testament of Maude H. P. Heyhnan, deceased. That from the evidence and proofs adduced before me on the said reference, I do find and report as follows : I. That the material allegations of the amended complaint herein are true. II. That an abstract of the conveyances and instruments, by which the premises described in the said amended complaint are held, is hereto annexed and made a part of this report. III. That on or about the 31st day of May, 1899, Jacob M. Patterson, Jr., died, seized in fee simple absolute, of the four parcels of real property described in the said amended com- plaint. IV. That the said Jacob M. Patterson, Jr. left a last Will and Testament, dated the 23d day of November, 1885 which said will was duly proved and admitted to probate in the Surrogate's Court of the County of New York on the 21st day of June, 1899, and is recorded in said Surrogate's office in Liber 614 of Wills at page 198. V. That in and by the said will the said testator Jacob M. Patterson, Jr. devised to his wife, Leah Frances Patterson, PARTITION 1029 Referee's Report during her life all the rents and profits of his real estate, and upon the death of his said wife he devised the residue of his estate to his daughters, the plaintiff Susan W. Patterson, the defendant Georgette G. Patterson, and Maude H. Patterson, and his son Alonzo C. Patterson, in equal shares. VI. That said Alonzo C. Patterson died in infancy, intestate, unmarried and without issue, prior to the death of said Jacob M. Patterson; and that said Leah Frances Patterson died on or about the 29th day of June, 1906. VII. That said Maude H. Patterson intermarried with Henry B. Heylman, and died, seized of one equal undivided third part or share of the said real property described in the said amended complaint, on or about the 21st day of September, 1910. VIII. That said Maude H. P. Heylman left a last Will and Testament, dated the 7th day of August, 1906, which said will was duly proved and admitted to probate in the Surrogate's Court of the County of New York on the 3d day of November, 1910, and is recorded in said Surrogate's office in Liber 894 of Wills, at page 399. IX. That Letters Testamentary under the said will of said Maude H. P. Heylman were granted and duly issued on the 3d day of November, 1910 to Susan W. Patterson and Georgette G. Patterson, the Executrices named in said will. X. That said Maude H. P. Heylman left her surviving the defendant Henry Patterson Heylman, her only child, and left no issue of any deceased child her surviving. XI. That under and by virtue of the said will of Maude H. P. Heyhnan, the one equal undivided third part or share of the said real property of which she died seized, became vested in the defendants Susan W. Patterson and Georgette G. Patter- son, as Trustees for the defendant Henry Patterson Heylman. XII. That the rights and interests of the several parties in the real property described in the amended complaint herein, are as follows : The plaintiff, Susan W. Patterson, is entitled to one equal undivided third part or share thereof. 1030 Bradbury's lawyers' manual Referee's Report The defendant, Georgette G. Patterson, is entitled to one equal undivided third part or share thereof. The defendants Susan W. Patterson and Georgette G. Patterson, as trustees of the trust created by and under the last will and testament of Maude H. P. Heylman, deceased, for the benefit of the defendant Henry Patterson Heyl- man are entitled to one equal undivided third part or share thereof. The defendant Henry Patterson Heylman is entitled as sole beneficiary of the trust created by and under the last will and Testament of Maude H. P. Heylman, deceased, and has no right or interest in the real property described in the said amended complaint. The defendants Emma L. Manchester and Emily B. Lobb have not nor has either of them any title or interest in the said real property described in the amended complaint. XIII. That the plaintiff Susan W. Patterson, the defendant Georgette G. Patterson, and the defendants Susan W. Patterson and Georgette G. Patterson as Executrices of and Trustees under the last Will and Testament of Maude H. P. Heylman, deceased, are in possession of the said real property and are the owners thereof, being seized thereof in fee simple as tenants in common. XIV. That the plaintiff and the defendants in this action are the only persons now in being who are now or may be en- titled to any beneficial interest in and to the said real prop- erty. XV. That the parties to this action are not the owners in common of any lands or premises other than those described in the said amended complaint. XVI. That the plaintiff and each and all said defendants are of full age and sound mind, except the defendant Henry Patter- son Heylman, who is an infant under the age of fourteen years. XVII. That the said lands and premises described in the said amended complaint are so situated that considering the said four parcels together or considering each separately, an PARTITION i03i Referee's Report actual partition thereof cannot be made without great prejudice to the owners thereof for the following reasons: Parcel I consists of a plot of land 66 feet in width and 73 feet 6 inches in depth upon which are erected four tenement houses, and it would be impossible to divide such plot into three parts of equal value. Parcel II is a plot of irregular shape, at the corner of two intersecting streets, upon which is erected a frame dwelling house, and it would be impossible to divide said plot into three parts of equal value. Parcels III and IV are vacant plots of such size and shape that it would be impossible to divide either of them into three parts of equal value. XVIII. That in my opinion a sale of the entire premises described in the said amended complaint is both desirable and necessary in order to conserve the rights of the parties to this action. XIX. That in and by the above mentioned order appointing me Referee in this action I was ordered to ascertain and report whether there is any creditor not a party to the action who has a lien on the undivided share or interest of any party and if any party produces a search or searches certified by a title insurance company organized and doing business under the laws of this State and it appears therefrom and by the affidavits, if any produced therewith, that there is no such outstanding lien, then it was ordered that any further reference and the advertis- ing provided for by Sections 1561 and 1562 of the Code of Civil' Procedure would be dispensed with. XX. That the plaintiff produced before me upon such ref- erence four searches made by the Lawyers' Title Insurance & Trust Company, covering the four parcels of land described in the said amended complaint respectively, which said searches were duly offered and admitted in evidence, and are hereto annexed, and from the said searches, it appears that there is no person or creditor not a party to this action who has any claim or lien on the said real property or on the undivided share or interest therein of any party to the action, and no person, not 1032 Bradbury's lawyers' manual Notice of Motion to Spend Additional Sums in Advertising Property for Sale a party to this action, has appeared before me to prove a claim or lien against the share of any of the parties herein in the property except as hereinafter stated. XXI. That parcel No. IV as described in said amended complaint is encumbered with an unrecorded mortgage for four thousand dollars made by Susan W. Patterson, Georgette G. Patterson and Maude H. P. Heyhnan in favor of one Jennie Brimmer upon which mortgage there is due the sum of four thousand dollars with interest from the 24th day of April, 1911, at the rate of five per centum per annum. XXII. That annexed hereto are the minutes of the said reference together with the testimony of the witnesses ex- amined before me. All of which is respectfully submitted. Dated New York, December 6th, 1911. Rich. M. Henry, Referee. FORM NO. 558 Notice of Motion on Application to Spend Additional Sums in Advertising Property for Sale (Title of Action) Please take notice, that upon the affidavit of Susan W. Patterson, verified February 14th, 1912, and upon the affidavit of Henry B. Hammond, verified February 14th, 1912, and upon all the papers and proceedings in this action, a motion will be made at a Special Term of the Supreme Court, Part I thereof, to be held at the County Courthouse, in the Borough of Manhattan, City of New York, on the 20th day of Febru- ary, 1912, at 10 :30 o'clock A. M. or as soon thereafter as counsel can be heard for an order authorizing the Referee appointed by the interlocutory judgment of sale herein, to expend a sum not to exceed five hundred dollars in advertising the premises described in said judgment for sale, such sum to be PARTITION 1033 Affidavit on Motion to Authorize Spending of Additional Sum for Advertising in addition to the expenses incurred for the publication of the usual notices of sale in partition actions, and for such other and further relief as may be proper. Dated, New York, February 14th, 1912. R. & E. J. O'GORMAN, Attorneys for Plaintiff. To {all attorneys who have appeared.) FORM NO. 559 Affidavit on Motion to Authorize Spending of Additional Sum for Advertising (Title of Action) State of New York City and County of New York Susan W. Patterson, being duly sworn, deposes and says: — That she is the plaintiff in this action; that an interlocutory judgment herein bearing date the 2d day of January, 1912, was filed in the office of the Clerk of the County of New York on the 24th day of January, 1912, that said interlocutory judgment directed the sale of the premises described therein at public auction in the County of New York under the di- rection of Richard M. Henry, Referee. That the real property mentioned and described in the said judgment consists of (Parcel 1) four tenement houses at the northwest corner of Stanton and Suffolk Streets, in the Borough of Manhattan (Parcel 2), a lot of land at the southeast corner of Fordham Road and Grand Boulevard, in the Borough of the Bronx, about 108 feet by about 222 feet (Parcel 3), a vacant plot on the east side of Creston Avenue, 150 feet north of 181st Street about 50 feet by about 91 feet (Parcel 4), a vacant plot on the westerly side of Webster Avenue about 221 feet south from 171st Street 125 feet in front and irregular in depth. That plaintiff has caused investigations and inquiries to be made of persons of great experience in the matter of the sales 1034 Bradbury's lawyers' manual Additional Affidavit on Motion for Authority to Spend Additional Suras of real properties in the Boroughs of Manhattan and the Bronx, and has been advised and believes that better results will be obtained in the sale of such real properties by advertising such sales more extensively than by the ordinary published notices of sales in partition suits. That plaintiff has received from Joseph P. Day, the auctioneer selected by the Referee herein to sell such properties, a Schedule and estimate of ad- vertising proposed and suggested by said auctioneer. That said Joseph P. Day has advised this deponent that in his opinion extra advertising in accordance with such Schedule proposed will result in attracting many more bidders to such sale than the ordinary advertising would do and will result in sales at prices considerably larger than might be expected from such ordinary advertising. That in order to advertise suCh sales in this manner, it will be necessary for the Referee herein to expend about five hundred dollars in addition to expenses of the usual advertising. A copy of such Schedule, as prepared and presented by said Joseph P. Day, is hereto annexed. Deponent therefore requests that an order be made authoriz- ing the Referee herein to procure such additional advertising at an expense not to exceed such sum of five hundred dollars to be paid by said Referee as one of the expenses of such sale or sales. Sworn to before me, this 14th 1 Susan W. Patterson. day of February, 1912. J FORM NO. 560 Additional Afladavit on Motion for Authority to Spend Additional Sums in Advertising {Title of Action) State of New York ss * City and County of New York Henry B. Hammond being duly sworn, deposes and says: — That he is an attorney in the office of R. & E. J. O'Gorman, PARTITION 1035 Additional Affidavit on Motion for Authority to Spend Additional Sums the attorneys for the plaintiff in the above-entitled action, and has charge of the same. This action was brought for a partition or sale of certain premises situated in the Boroughs of Manhattan and the Bronx, in the City of New York. Said real properties were appraised in a proceeding for the fixing of the transfer tax upon the estate of a deceased owner of a share thereof at the following values: — Parcel 1, Stanton & Suffolk Streets $ 81,500 Parcel 2, Fordham Road & Grand Boulevard, Bronx 47,500 Parcel 3, Webster Ave., near 171st Street, Bronx. . . 11,000 Parcel 4, Creston Ave., near 181st Street. 5,000 Total .1145,000 Said appraisal is contained in the Report of the Transfer Tax Appraiser, dated August 25th, 1911. That an interlocutory judgment was duly entered herein on the 2d day of January, 1912, and filed in the County Clerk's Office on January 24th, 1912; said judgment directed the sale of the four parcels de- scribed in the amended complaint herein under the direction of Richard M. Henry, Esq., Referee. The said Referee has selected Joseph P. Day as auctioneer to make sales of the properties as directed by said judgment. Said Joseph P. Day is a real estate auctioneer, agent and broker of wide and varied experience. The said Joseph P. Day has suggested and advised that the sale or sales of the properties should be advertised more extensively than by the ordinary publication of notices of sales in partition actions; said auc- tioneer states his opinion that by the expenditure of an addi- tional sum of about five hundred dollars in advertising much better results will be obtained on such sales ; that more bidders will be attracted and larger prices obtained by the Referee. Annexed hereto are a letter and a schedule of advertising prepared and presented by said Joseph P. Day, also annexed hereto is an affidavit of the plaintiff, requesting that such addi- tional advertising be authorized and that the Referee be au- thorized to expend the sum of five hundred dollars thereon. 1036 Bradbury's lawyers' manual Additional Affidavit on Motion for Authority to Spend Additional Sums All the parties to this action have consented by their attor- neys to such additional advertising, except Henry B. Heyl- man, Esq., Guardian ad litem of the infant defendant, who as such Guardian cannot consent, but who makes no objection thereto. The defendants Georgette G. Patterson and Emily B. Lobb and the defendants Susan W. Patterson and Georgette G. Patterson as Executrices, &c., appeared by Herbert A. Knox, their attorney; the defendant Henry P. Heylman is represented by Hem-y B. Heylman, his Guardian ad litem; the defendant Emma L. Manchester appeared by Messrs. Benjamin & Taylor, her attorneys. Henry B. Hammond. Sworn to before me, this 14th day of February, 1912. Frances V. Melia, Commissioner of Deeds, City of New York. New York, January 19, 1912. Messrs. R. & E. J. O'Gorman, 51 Chambers Street, New York City. Gentlemen : — In reference to the additional advertising in the partition action of Patterson v. Patterson, I am enclosing advertising schedule for $500 covering the properties located in the Bor- oughs of Manhattan and Bronx. I hope the same will meet with your approval and should you desire to confer with me in relation thereto, I will be more than pleased to meet you at any time you may appoint. I presume that the advertising schedule in question will be sufficient, in order that productive results will be obtained at the auction sale. Awaiting your further instructions, I am Sincerely yours, Joseph P. Day. PARTITION 1037 Additional Affidavit on Motion for Authority to Spend Additional Sums SCHEDULE OF ADVERTISING Manhattan and Bronx Properties - Newspaper A number of large display advertisements will appear in the prom- Advertising, inent newspapers of Manhattan and the Bronx, as well as in the Jewish newspapers, giving full details and particulars concerning the properties. In this connection you receive 20 per cent, better display owing to the contracted form in which my advertisements appear. Reading Notices. Folders. Signs. Letters to adjoining owners. Personal Canvass. A number of carefully compiled reading notices will appear from time to time in all the New York City newspapers, giving full explanation and details of the properties. These notices have de- rived very good results in the past and are only published owing to the enormous amount of advertising done by me. One thousand folders, showing diagram and detailed information about the Bronx properties, such as terms of sale, photographs, &c., to be printed and distributed by mail to a list of interested parties, to adjoining owners and a list of people selected from my large hsts of names who may possibly be interested in these properties. A one-page circular, showing diagram and descriptive selling talk to be printed and distributed, as outlined above, for the Manhattan property. The necessary signs wiU be placed on the properties, advertising the date and place of sale. Letters will be sent advising adjoining owners, and all parties known to be interested in these properties, of the sale and the advisability of their attending it. This form of advertising has derived very good results in the past, and is a sort of wedge for my personal canvass system. All people who have been written to will be interviewed by two men in my Promotion Department, for the purpose of explaining any particulars not thoroughly understood, as well as strongly advising their attendance at the sale. This brings the prospective purchaser in direct touch with the seller. Excellent results have been ob- tained from this form of advertising in the past. Posters. 1,000 half sheet posters, size 20 x 30 inches, printed in two colors, giving descriptive selling talk of the properties, together with full details of the sale, will be posted in the immediate neighborhood of the properties located in the Bronx and Manhattan. Also a num- ber of posters printed in the Jewish language will be posted in the adjoining neighborhood of the Manhattan property. 1038 Bradbury's lawyers' manual Notice of Motion to Confinn Referee's Report of Sale Night A number of fifty-word night-letters will be sent the night previous Telegrams. to the sale to people who have shown interest in the properties, to a selected list of operators and investors, reminding them to be sure to attend the sale. Sundry Stationery', postage, terms of sale and other incidental expenses will Expenses. be furnished by me. The above schedule for advertising will furnish you for $500.00. It is tentative and subject to revision at the option of either party. Upon receipt of the proper authorization to proceed with the ad- vertising, in accordance with the above schedule, a list of the news- papers in which the advertisements will appear will be furnished you, if desired. We hereby consent to the expenditure by the referee of $500 for additional advertising as per the above schedule. Dated, February 14th, 1912. R. & E. J. O'GORMAN, Attorneys for Plaintiff. Herbert A. Knox, Attorneys for Defendants, Georgette G. Patterson & others. Benjamin & Taylor, Attorneys for Defendant, Emma L. Manchester. FORM NO. 561 Notice of Motion to Confirm Referee's Report of Sale {Title of Action) Please take notice that the report of Richard M. Henry, Esq., the Referee appointed by and named in the Interlocutory Judgment made and entered in this action and bearing date the 2d day of January, 1912, to make sale of the land and premises in said judgment particularly described, which said report is dated April 29th, 1912, a copy of which is hereto annexed, and which reports the sale of Parcels 2, 3 and 4 of the PARTITION 1039 Referee's Report of Sale premises described in said Interlocutory Judgment was duly filed in the office of the Clerk of the County of New York on the 29th day of April, 1912, and please take notice that upon all the pleadings and all the proceedings in the above-entitled action and upon the said report a motion will be made at Spe- cial Term, Part I, of the Supreme Court, held in and for the County of New York at the County Courthouse, in the Borough of Manhattan, in the City of New York, on the 7th day of May, 1912, at 10:30 o'clock in the forenoon or as soon there- after as counsel can be heard for an order confirming said Report of Sale, and for such other and further relief as may be just, and Please take further notice that an order in the form hereto annexed will be presented for settlement and signature to the Hon. James A. Blanchard, one of the Justices of this Court, at his Chambers, in the County Courthouse, in the Bor- ough of Manhattan, in the City and County of New York, on the 7th day of May, 1912. Dated, New York, April 29th, 1912. Yours, etc., R. & E. J. O'GORMAN, Attorneys for Plaintiff. To: (All Attorneys who have appeared.) FORM NO. 562 Referee's Report of Sale (Title of Action) To the Supreme Court of the State of New York, in and for the County of New York. In pursuance of the Interlocutory Judgment of Partition and Sale, duly made and entered in the above-entitled action, and bearing date the 2d day of January, 1912, I, Richard M. Henry, the Referee therein named, to whom the execution thereof was confided, do respectfully 1040 BRADBURY'S LAWYERS' MANUAL Referee's Report of Sale REPORT First: That the premises described in said judgment which are situated in the Borough of Manhattan, in the City of New York, were sold by me on Mar 19 , and the affidavit of , sworn to > 19 , showing that the notice of motion herein with the accompany- ing affidavits were personally served on said , and after reading the interlocutory judgment, report of sale and final judgment and all the other papers and proceedings in the above-entitled action heretofore filed in the office of the clerk of the County of New York, in favor of said motion, and after reading and filing the affidavit of , sworn to 1084 Bradbury's lawyers' manual Order Requiring Purchaser to Complete Purchase the day of , 19 , in opposition thereto, and after hearing , Esq., attorney for the plain- tiff in favor of said motion, and , Esq., attorney for said in opposition thereto, and due delibera- tion having been had, Now, on motion of , attorney for the plaintiff herein, it is hereby Ordered, that said be and hereby is re- quired, on or before the day of ; 19 , to pay to said , the referee herein, the svun of doUars (with interest thereon from the day of , 19 , up to the time of said payment) upon receiving from said referee a deed duly executed in statutory form to the premises described in the complaint and final judgment herein. And it is eubther ordered, that the plaintiff recover of said ten dollars costs of this motion. Enter, B. S. W., J. s. c. CHAPTER XLVIII SURPLUS MONEY PROCEEDINGS ^ FORMS NO. PAGE NO. PAGE 580. Notice of motion for refer- 585. Order appointing referee in enoe in surplus proceed- surplus proceeding 1091 ings 1086 586. Referee's summons in surplus 581. Affidavit on motion for refer- proceedings 1093 ence in surplus proceed- 587. Notice of filing of referee's ings 1087 report and of motion to 582. Notice of claim to surplus. . . . 1089 confirm report in surplus 583. Clerk's certificate as to ap- proceedings 1094 pearances in action 1090 688. Order confirming referee's re- 584. Clerk's certificate of filing of port in surplus proceedings. 1095 claims to surplus money. . . 1091 589. Referee's report 1096 ' Certain of the justices of the Supreme Court have adopted the rule that referees wiU not be appointed in surplus money proceedings but that the matter should be brought on at Special Term and there heard by the justice and an order made direct for the distribution. This procedure saves much time and money and a good deal of work on the part of the attorney who institutes the surplus proceeding. The decision below indicates the rule which was adopted in Kings County for the January, 1917, Special Term: "The motion, in so far as it seeks a direction to the referee not to deposit the surplus in his hands, must be denied. The judgment directs the referee what disposition to make of the surplus and when, and he, of course, will comply with it. The reasons stated by claimant's attorney why the referee has not done so are not sufficient. The money must be deposited as required. So far as the balance of the motion is concerned, namely, to dispense with an order of reference in surplus proceedings, that will be granted. The court now holding Special Term has this month dispensed with such orders as unnecessary and wasteful. Instead the court has taken the proof in open court. The same procedure wiU be followed here. Notice of hearing should be given to all parties appearing and who have filed claims and who are interested. Hearing set for January 17, 1917, at 2 P. M." City Tax Lien Co. v. Murray, Supreme Court, Kings County Special Term, Cbopsey, J., January 12, 1917. However, the practice indicated by Mr. Justice Cropsey is not universal and referees are still appointed in many of the counties of the State. 1085 1086 Bradbury's lawyers' manual Notice of Motion for Reference in Surplus Proceedings FORM NO. 580 Notice of Motion for Reference in Surplus Proceedings {Title of Action) Please take notice that upon the report of sale of the Hon. Leo C. Dessar, Referee herein, filed in the office of the Clerk of New York County, on the 16th day of June, 1908, and upon the affidavit of Harold Nathan, verified the 22d day of June, 1908, and the papers annexed thereto, and upon all the papers and proceedings herein, a motion will be made at Spe- cial Term, Part I, thereof, of the Supreme Court, New York County, on the 30th day of June, 1908, at the opening of court, or as soon thereafter as counsel can be heard, for an order referring it to a referee to be appointed by the Court to ascer- tain and report the amount due Blanche B. Neukirch, or to any other person, which is a lien upon the surplus moneys realized upon the foreclosure of the mortgage foreclosed in the above-entitled action and depositing with the Chamberlain of the City of New York, and as to the priorities of the several liens thereon, and for such other and further rehef as to the Court may seem just and proper, together with the costs of this motion. Dated, New York, June 22d, 1908. Yours, etc., Leventritt, Cook & Nathan, Attorneys for Petitioner, 111 Broadway, Borough of Manhattan, New York City. To: {Attorneys for all parties who appeared in action.) SURPLUS MONEY PROCEEDINGS 1087 Affidavit on Motion for Reference in Surplus Proceedings FORM NO. 581 Affidavit on Motion for Reference in Surplus Proceedings {Title of Action) State of New York County OP New York ss: Harold Nathan, being duly .sworn, deposes and says: I am one of the attorneys for Blanche B. Neukirch, the person who has filed a notice of claim to surplus moneys in the above-entitled action. Said notice of claim was filed in the office of the Clerk of the County of New York on the 18th day of June, 1908. A copy thereof is hereto annexed, marked "Exhibit A." The owner of the equity of redemption of the property sold under foreclosure proceedings in the above-entitled action is the North Side Brewing Company, which has appeared in this action by John E. Brodsky, its attorney. While the above- entitled action was pending, said corporation was adjudicated a bankrupt in the U. S. District Court for the Southern District of New York, and Joseph Harris was duly appointed Trustee in Bankruptcy of said North Side Brewing Company and qualified as such. All persons having, or appearing to have, from the official searches for conveyances and incumbrances made in the prog- ress of this action and filed with the judgment roll, any unsat- isfied lien on the premises sold under foreclosure, and hence on the surplus moneys herein, were duly made parties in the above-entitled action and were duly served therein with copies of the summons and complaint as appears from the judgment roll herein. It appears from the certificate of the County Clerk of New York County, dated June 19th, 1908, a copy of which is hereto annexed marked "Exhibit B," that the only parties who have appeared in this action are those stated therein, to which deponent refers. 1088 Bradbury's lawyers' manual Affidavit on Motion for Reference in Surplus Proceedings Deponent knows of no other persons having any unsatisfied lien or liens on said premises or the surplus moneys herein. The certificate of the Chamberlain attached to the report of the Referee herein, shows that the sum of four thousand one hundred twenty-six and ten one hundredths dollars ($4,126.10) has been received by him as the surplus money realized from the sale of the property foreclosed in the above-entitled action. The certificate of the Clerk of this Court and County is hereto annexed, marked "Exhibit C," from which it appears that there are no notices of claim to the surplus money on file in the above-entitled action except the notice of claim of the petitioner herein, Blanche B. Neukirch, by Leventritt, Cook & Nathan, her attorneys. Wherefore, your deponent prays for an order referring it to a referee to be appointed by the Court, to ascertain and report the amount due to said Blanche B. Neukirch or to any other person which is a lien upon such surplus moneys, and as to the priorities of the several hens thereon, and for such other and further relief as to the Court may seem just, for which no previous application has been made. Sworn to before me, this 22d day of June, 1908. Samuel Schwartzman, Notary Public, N. Y. Co. Harold Nathan. SURPLUS MONEY PROCEEDINGS 1089 Notice of Claim to Surplus FORM NO. 582 Notice of Claim to Surplus Supreme Court, New York County. Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz, individually and as Ex- ecutrix, etc., of Joseph Kuntz, de- ceased, and others. Defendants. Please take notice that the undersigned is entitled to the surplus moneys arising on the sale made in this action on the 27th day of May, 1908. The claim of the undersigned is for the sum of $27,443, with interest from July 3d, 1907, and the further sum of $338.92, with interest from July 12th, 1907, as appears by the judgment in an action in the Supreme Court, New York County, wherein the undersigned Blanche B. Neukirch was plaintiff and North Side Brewing Company et al., defendants, which judgment is dated July 12th, 1907, and was filed and entered in the ofl&ce of the Clerk of the County of New York on the 19th day of July, 1907. Said judgment was rendered in an action brought by the undersigned to foreclose a mortgage bearing date the 31st day of January, 1905, and duly recorded, executed by North Side Brewing Company and delivered to said Neukirch to secure the payment of the sum of $26,000, with interest thereon at the rate of 6 per cent, per annum, and payable on the 31st day of January, 1907, which mortgage was and is a lien second and subordinate only to the lien of the Emigrant Industrial Savings Bank by virtue of its mortgage upon the 1090 BRADBURY'S LAWYERS* MANUAL Clerk's Certificate as to Appearances in Action premises sold under foreclosure in this action, and is a first lien upon the surplus moneys herein. Dated, June 17th, 1908. Blanche B. Neukiech, By Leventritt, Cook & Nathan, Attorneys, No. Ill Broadway, Manhattan Borough, New York City, N. Y. To: Peter J. Dooling, Esq., Clerk of the County of New York. FORM NO. 583 Clerk's Certificate as to Appearances in Action Supreme Court, County of New York. The Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz, Defendant. I, Peter J. Dooling, Clerk of the Supreme Court, do hereby certify, that as appears by the Judgment Roll on file in this action, the following-named defendants appeared therein, as follows, viz: Abraham C. Quackenbush, Lambert Quackenbush and Frederick V. Hass, by- William R. Adams, atty. Augusta E. Kuntz, as executrix of Michael Kuntz, deceased, by Alfred and Charles Steckler, attys. Blanche B. Neukirch, by Nathan, Leventritt & Perham, attys. First National Bank of Belleville and Milwaukee Malting Co., by Douglas & Minton, attys. Charles H. Wilson, Charles L. Adams, Allen W. Adams and Jacob S. Carvalli, composing the firm of Wilson, Adams Company, by Fink, E. & C, attys. Metropolitan Express Co., by Arthur K. Wing, atty. SURPLUS MONEY PROCEEDINGS 1091 Order Appointing Referee in Surplus Proceeding Evans Milling Co., by Blumenstiel & B., attys. American Malting Co., by Blumenstiel & B., attys. J. Henry Yockel, by John P. Everett, atty. Louis Bossert and John Bossert, by Frank Obernier, atty. The Empire State Surety Co., by Hirsh & Rasquin, attys. The Union Stove Works, Ronald and Johnson Co., by Phillips & Avery, attys. New York Telephone Co., by David J. Bannon, atty. Anton Larsen, by F. E. M. BuUowa, atty. Randolph Guggenheimer, by Guggenheimer, Untermyer & Marshall, attys. Dated, N. Y., June, 19, 1908. Peter J. Dooling, (Seal.) Clerk. FORM NO. 584 Clerk's Certificate of Filing of Claims to Surplus Money Supreme Court, County of New York. Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz. Defendant. Notice of Claims. I, Peter J. Dooling, Clerk of the Supreme Court, do hereby certify that there is no notice of claim to Surplus Moneys in above-entitled action on file except the notice of claim of Blanche B. Neukirch, by Leventritt, Cook & Nathan, atty., filed June 18, 1908. Dated, N. Y., June, 19, 1908. Peter J. Dooling, (Seal.) CUrk. FORM NO. 585 Order Appointing Referee in Surplus Proceeding At a Special Term of the Supreme Court, Part I thereof, held in and for the County of New York, at the County Court- 1092 Bradbury's lawyers' manual Order Appointing Referee in Surplus Proceeding house, in the Borough of Manhattan, City of New York, on the 1st day of July, 1908. Present: Hon. James A. Blanchard, Justice. Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz, individually and as Ex- ecutrix, etc., of Joseph Kuntz, de- ceased, and others. Defendants. Upon reading and filing the notice of motion, dated the 22d day of June, 1908, and the affidavit of Harold Nathan, verified the 22d day of June, 1908, a copy of the notice of claim by Blanche B. Neukirch to the surplus moneys in this action, and the other exhibits annexed thereto, and upon proof of due service of notice of this motion upon all the parties who have appeared or who have served notice of claim upon such sur- plus moneys, and upon the Referee's report of Sale herein, and upon all the papers and proceedings herein, and after hearing Leventritt, Cook & Nathan, Esqrs., in support of said motion, and in opposition thereto, and due deliberation having been had thereon, it is Ordered, that it be referred to Frank M. Tichenor, Esq., of in the City of New York, to ascertain and report the amount due to said Blanche B. Neukirch or any other person which is a hen upon such surplus moneys, and to ascertain the priorities of the several liens thereon, and to report with all convenient speed; and it is further Ordered, that said Blanche B. Neukirch have 110, costs of the motion, payable out of the fund. Enter, J. A. B., J. S. C. SURPLUS MONEY PROCEEDINGS 1093 Referee's Summons in Surplus Proceedings FORM NO. 586 Referee's Summons in Surplus Proceedings Supreme Court, New York County. Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz et al., Defendants. By virtue of an order in the above action, made by tho Hon. James A. Blanchard, one of the Justices of the Suprenie Court on the 1st day of July, 1908, I, the undersigned, the Referee appointed in this action. Do HEREBY SUMMON you to appear at my office, 38 Park Row, Borough of Manhattan, New York City, on the ninth day of July, 1908, at 2 o'clock in the afternoon, to attend a hearing of the matters in the said action, in reference before me, as such referee, pursuant to said order. And hereof fail not at your peril. Dated the third day of July, 1908. To: R. & E. J. O'GoRMAN, Esq., Frank M. Tichenor, Attorneys for Plaintiff . Referee. UNDERWRITING To ascertain the vaUdity of the claim of Blanche B. Neu- kirch to the surplus moneys arising out of the sale of the mort- gaged premises mentioned in the complaint in this action, and the amount which is due to any other person which is a lien upon such surplus moneys and to ascertain the priorities of the several liens thereon. Frank M. Tichenor, Referee. 1094 Bradbury's lawyers' manual Notice of Filing of Referee's Report FORM NO. 587 Notice of Filing of Referee's Report and of Motion to Confirm Report in Surplus Proceedings (Title of Action) Please take notice that the Report of Frank M. Tichenor, Esq., the Referee appointed herein to ascertain and report the amount due to Blanche B. Neukirch, or to any other per- son which is a lien upon the surplus money herein, and to ascertain the priorities of the several hens thereon, was this day duly filed in the office of the clerk of New York County. Take notice also that upon said Referee's Report, and upon all the testimony and papers annexed thereto, the claim- ant Blanche B. Neukirch, will apply to this Court at a Special Term, Part I thereof, to be held at the County Courthouse, Borough of Manhattan, City of New York, on the 29th day of July, 1908, at 10:30 o'clock in the forenoon or as soon there- after as counsel can be heard for an order confirming said report and directing the Chamberlain of the City of New York to pay to claimant Blanche B. Neukirch, or Leventritt, Cook & Nathan, her attorneys, the sum of $4,105.47 (with interest, less commissions) being the entire surplus moneys herein. Please take notice also that the annexed order will be submitted for settlement to the Hon. , Justice of the Supreme Court presiding at Part I, Special Term, at his Chambers, in the County Courthouse, in the Borough of Man- hattan, City of New York, on the 29th day of July, 1908, at 10.30 o'clock in the forenoon. Dated, New York, July 17th, 1908. Yours, etc., Leventritt, Cook & Nathan, Attorneys for Claimant, Office & P. 0. Address, 111 Broadway, Borough of Manhattan, To: (Attorneys for all parties.) New York City. SURPLUS MONEY PROCEEDINGS 1095 Order Confirming Referee's Report in Surplus Proceedings FORM NO. 588 Order Confirming Referee's Report in Surplus Proceedings At a Special Term of the Supreme Court, Part I thereof, held in and for the County of New York, at the County Court- house, in the Borough of Manhattan, City of New York, on the day of July, 1908. Present : Hon. Samuel Greenbaum, Justice. Emigrant Industrial Savings Bank, Plaintiff, against Lena Kuntz, individually and as Executrix, etc., of Joseph Kuntz, deceased, and others. Defendants. Upon the report of Frank M. Tichenor, Esq., the referee ap- pointed herein to ascertain and report the amount due to Blanche B. Neukirch or any other person which is a Hen upon the surplus moneys in this action and to ascertain the priorities of the several liens thereon, which report was filed in the office of the clerk of this court on the 17th day of July, 1908, and upon all the testimony and papers annexed to and filed with said report; and on reading and fihng the notice of filing of said report and of this motion, with due proof of the service thereof on all parties entitled to such notice, and upon all the papers and proceedings herein; after hearing Leventritt, Cook & Nathan, attorneys for claimant Neukirch, in support of said motion and no one appearing in opposition thereto, It is ordered, that the said report of the referee be and the same hereby is in all respects confirmed. It is further ordered that the Chamberlain of the City of New York pay out to the claimant Blanche B. Neukirch, or Leventritt, Cook & Nathan, her attorneys, all the moneys in his hands to the credit of this action, to wit, the sum of $4,105.47 1096 BRADBURY S LAWYERS MANUAL Referee's Report after deducting therefrom the fees and commissions and adding the interest allowed by law. Enter, S. G., J. S. C. FORM NO. 589 Referee's Report Supreme Court, New York County. The Emigrant Industrial Savings Bank, Plaintiff, against Mathilda Fitzsimons, individually and as executrix of James M. Fitz- simons, deceased, et al., Defendants. To the Honorable Supreme Court of the State of New York: I, the undersigned referee, appointed by an order of this Court, made April 13, 1910, to ascertain and report the amount due to the said Mathilda Fitzsimons or to any other persons who have a Uen upon the surplus moneys of this action and to ascertain the priorities of the several liens thereon, do respect- fully report as follows : That I caused aU parties who have appeared in this action and all persons who have filed notice of claims upon the surplus moneys and all persons who were known to have hens thereon, as appears by the certificate of the Clerk which is hereto an- nexed, showing who have appeared in the action and filed notices of claim, to be summoned to appear before me, as appears from the proof of service of the subpoena herein, which is also hereunto annexed. That on said hearing I was attended by Isidor Frey, of counsel, with Louis Steckler, Esq., attorney for Mathilda Fitz- SUEPLUS MONEY PROCEEDINGS 1097 Referee's Report simons, claimant herein, and by no counsel representing any other claimants or parties. That the testimony of the witnesses upon such hearing was read and signed by them, and that such testimony, and all the evidence, except such of it as was documentary and as consisted of papers which were public records, is annexed to this report; that from such testimony and evidence I make the following FINDINGS OF FACT I. That the amount of surplus moneys in this action is the sum of five thousand three hundred seventy-eight and thirty- three one hundredths dollars, as appears by the certificate of the Chamberlain of the City and County of New York, filed in the office of the Clerk of the County of New York on April 14, 1910. II. That on January 17, 1906, the defendants Julius Stoloff and Morris Kronovet made, executed and deUvered unto the claimant Mathilda Fitzsimons their certain bond and mort- gage of the property which is the subject of this action, dated January 17, 1906, to secure the payment of the sum of eight thousand two hundred and fifty dollars upon the 31st day of December, 1910, with interest thereon semi-annually at the rate of six per cent, per annum, payable on the 17th days of July and January, and recorded in the office of the Register of the City and County of New York in Liber 185 (of Mortgages), at page 452 on the 18th day of January, 1906. III. That no part of the principal upon said bond and mort- gage has ever been paid, and that no part of the interest upon said mortgage has been paid since July 1, 1908, and that the entire principal of said bond and mortgage and the interest of said bond and mortgage accruing since July 1, 1908, is now unpaid; that the amount of said principal is $8,250, and the amount of said interest to April 18, 1910, is eight hundred eighty-five and fifty one hundredths dollars. And from the foregoing Findings of Fact, I further find the following 1098 Bradbury's lawyers' manual Referee's Report CONCLUSIONS OF LAW 1. That after paying the costs and disbursements of this reference, the hens upon said surplus moneys are as follows : 2. That there is due and owing to said claimant Mathilda Fitzsimons under and by virtue of the said bond and mortgage the sum of $8,250, principal, together with $885.50, interest from July 1, 1908, to April 18, 1910, at the rate of six per cent, per annum, amounting in all to the sum of $9,135.50 and that this amount is a first lien upon said surplus moneys in this action. Dated, May 5, 1910. Gilbert H. Montague, Referee. CHAPTER XLIX ADOPTION OF MINORS FORMS NO. PAGE NO. PAGE 590. Petition for adoption 1099 .592. Order of adoption 1102 591. Agreement of adoption 1101 FORM NO. 590 Petition for Adoption (Domestic Relations Law, § 120, as am'd by L. 1916, c. 453) Surrogate's Court, New York County. Or, County Court, County. In the Matter of the AppHcation for the Adoption of John Jones, by William Brown and Mary Brown his wife. To the Surrogate of the County of New York (or to the County Judge of County) . WiUiam Brown and Mary Brown, his wife, by this petition, respectfully show: I. That petitioners are husband and wife and live together as such at No. , Street, in the Borough of Man- hattan, City and State of New York. II. That John Jones, the person whom your petitioners de- sire to adopt, as hereinafter stated, is of the age of years, ^ as petitioners are informed and verily believe, and that ' The Domestic Relations Law was amended in 1915 and 1916 so as to provide that any person might be adopted, irrespective of his age. Prior to that the adoption was only allowed of a minor. This, to a very great extent, changes the nature of the proceedings. When minors under the age of 18 are to be adopted, 1099 UOO Bradbury's lawyers' manual Petition for Adoption said John Jones resides with his mother at No. , Street, Borough of Manhattan, City and State of New York. {Or if the person to be adopted is in charge of an Institution or has no parents living, or his parents have abandoned him, or any other facts exist, as specified in ^111 of the Domestic Relations Law, specify the facts as they exist.) III. That your petitioners desire to adopt said John Jones, and for such purpose have made and executed an instrument pursuant to the Domestic Relations Law, which is submitted herewith and which is consented to by the persons required by the Domestic Relations Law, as appears by said instrument. IV. Petitioners therefore pray that an order may be made allowing said petition pursuant to the statutes in such case made and provided, and that said John Jones may after such adoption be known under the name of John Brown. V. No previous application for such an order has been made. Dated the day of , 19 . William Brown. Mary Brown. State of New York ss * County of New York ' William Brown and Mary Brown being duly sworn, depose and says that they are the persons named in and making the foregoing petition; that the same is true to their own knowledge except as to the matters therein stated to be alleged on informa- tion and belief and as to those matters they believe it to be true. Sworn to before me, this day of , 19 (Signature and title of officer.) William Brown. Mary Brown. there must be the consent of some person other than the minor, pursuant to § 111 of the Domestic Relations Law. In cases of minors over 18, the consent may be dispensed with and in cases of persons over 21 years, no consent thereto of the person to be adopted is necessary. ADOPTION OF MINORS 1101 Agreement of Adoption FORM NO. 591 Agreement of Adoption Whereas, William Brown and Mary Brown, his wife, both being of full age and residing together as man and wife, at No. , Street, in the Borough of Manhattan, City and State of New York, desire to adopt as their own child John Jones (a minor), of the age of years, now re- siding with (here state the facts, either the person to be adopted is residing with his parents, or in an institution, or whatever the facts may be in relation thereto) , Now, the said William Brown and Mary Brown, his wife, promise and agree to adopt the said John Jones, as their own lawful child and by these presents, do adopt the said John Jones and promise and agree to treat the said John Jones as their own lawful child in every respect whatsoever. And the said John Jones, the person to be adopted, consents to said adoption (or the mother, or the Institution, or the other person, as provided in the statute) hereby renounces all right and claim upon the said John Jones (the said minor) or upon his earnings or any other property or right which said John Jones (a minor) may now own, possess or be entitled to receive at the present time, or may own, possess or be entitled to re- ceive at any time in the future, including both equitable and legal rights and property and choses in action, and consents to said adoption. And the parties to this instrument severally pray that an order may be made allowing and confirming said adoption. It is further agreed that the said John Jones shall, after such adoption, be known as John Brown. In witness whereof, the said William Brown and Mary Brown, as well as the said John Jones (or any other person who is required to consent to the adoption) have hereunto subscribed 1102 Bradbury's lawyers' manual Order of Adoption their names and set their seals the day of , 19 . (Seal.) William Brown. (Seal.) Mary Brown. (and also the signature of the person to be adopted, if over the age of twenty-one years. If between the ages of 18 and 21 years, the sig- nature of the person to be adopted and a recital in the order waiv- ing notice to other persons, pursuant to %111 of the Domestic Relations Law). {Acknowledgment by all persons in statutory form before the Judge granting the order. But if the persons who consent are with- out the State or county the acknowledgment must be taken before any officer authorized to take acknowledgments of deeds to be re- corded.) FORM NO. 592 Order of Adoption Surrogate's Court, New York County Or, County Court of County In the Matter of the Application for the Adoption of John Jones (a minor), by William Brown and Mary Brown, his wife. A petition having been duly presented by William Brown and Mary Brown, his wife, duly verified the day of ,19 , for the adoption of John Jones (a minor), of the age of years, and there having been duly presented to me an instrument in writing wherein and whereby said William Brown and Mary Brown, his wife, agree to adopt said John Jones and treat him in all respects as their own child, and said agreement having been consented to by {Here state the persons by whom the consent must be executed in conformity with ADOPTION OF MINORS 1103 Order of Adoption ^111 of the Domestic Relations Law) and the said William Brown and Mary Brown and the said John Jones (and any other person required by ^111 of the Domestic Relations Law) having appeared before me and having been examined by me to determine whether the moral and temporal interests of the said John Jones will be promoted by said adoption, and being satisfied that the moral and temporal interests of the said John Jones will be promoted thereby it is hereby Ordered, that said adoption be allowed and confirmed and henceforth the said John Jones shall be regarded and treated in all respects as the child of said William Brown and Mary Brown, his wife, and the said John Jones shall hereafter be known under the name of John Brown. Dated the day of , 19 . Edward Edwards, Surrogate of the County of New York. Or, County Judge of County. CHAPTER L ASSIGNMENT FOR BENEFIT OF CEEDITORS ^ FORMS NO. PAGE NO. PAGE 593. General assignment for bene- thereof of firm and in- fit of creditors 1104 dividual property, without 594. General assignment for the preferences 1107 benefit of creditors by 595. Composition agreement 1113 partnership and members FORM NO. 593 General Assignment for Benefit of Creditors (Debtor and Creditor Law, § 3) This indenture, made the day of , 19 , between John Jones, who resides at No. , Street, Borough of Manhattan, City and State of New York, and carrying on the business of (here state the general nature of the business) at No. , Street, in the Borough of Manhattan, City and State of New York, party of the first part, and WiUiam Brown, residing at No. , Street, Borough of Manhattan, City and State of New York,^ 1 A general assignment should be recorded in the office of the Clerk of the county where the debtor resides or where he carries on business at the date of the assignment. An assignment by copartners must be recorded in the county where the principal place of business of such copartners is located. The assign- ment of a corporation shall be recorded in the county where its principal place of business is situated. Debtor and Creditor Law, § 3. Where real property is a part of the property assigned and is situated in a county other than the one in which the original assignment is required to be recorded, a certified copy of such original assignment shall be filed and recorded in the county where such property is situated. Id. '' (If the foregoing assignment is executed by a corporation the first clause should be as follows:) This Indenture made the day of , 19 , between John 1104 ASSIGNMENT FOR BENEFIT OF CREDITORS 1106 General Assignment for Benefit of Creditors WITNESSETH Whereas, the party of the first part is indebted to divers persons in sundry sums of money which he is unable to pay in full and is desirous of providing for the payment of the sum -pro rata so far as it is in his power, by an assignment and distribution of all his property for that purpose; Now, THEREFORE, the Said party of the first part, in con- sideration of the premises and of one dollar paid by the party of the second part, upon the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned and set over and by these presents does grant, bargain, sell, assign and set over unto the party of the second part, his successors and assigns, all and singular the land, tenements, hereditaments and appurte- nances, goods, chattels, stocks, promissory notes, claims, de- mands, property and effects of every description belonging to the party of the first part, of whatsoever nature and whereso- ever the same may be situated, except such property as is by law exempt from levy and sale under an execution. To HAVE AND TO HOLD the Same and every part thereof in trust for the uses and purposes following: To take possession of the said property and to sell the same with all reasonable despatch and to convert the same into Jones Company, a corporation duly created and existing under and by virtue of the laws of the State of New York, located and carrying on business of (stale nature of business), at No. , Street, in the Borough of Man- hattan, City and State of New York, party of the first part, and William Brown, who resides at No. , Street, Borough of Manhattan, City and State of New York, party of the second part. (If executed by a corporation the signature at the end would be:) JOHN JONES COMPANY, By John Jones, President. Attest: Andrew Anderson, Secretary. (Corporate Seal.) (There would also be attached thereto an acknowledgment in the corporate form. See Form No. 96, page 146.) 1106 Bradbury's lawyers' manual General Assignment for Benefit of Creditors money and also to collect all such debts and demands hereby- assigned as may be collectible, and out of the proceeds of such sales and collections to make the following distribution of the proceeds thereof: 1. To pay and discharge all the just and reasonable expenses, costs and charges of executing this assignment and of carrying into effect the trust hereby created, together with the lawful commissions of the party of the second part for his services in executing said trust. 2. To pay and discharge in full, if the residue of such pro- ceeds is sufficient for that purpose, all the debts and liabilities now due or to become due, of or from said party of the first part with all the interest money due or to become due thereon; and if the residue of said proceeds shall not be sufficierit to pay all the said debts, liabilities and interest moneys in full, then to apply the said residue of said proceeds to the payment of the said debts and liabilities ratably and in proportion to the amount thereof. 3. If, after the payment of all the costs, charges and ex- penses attending the execution of said trust and the payment of all debts and liabilities in full, there shall be any remainder or residue of said property or proceeds, to repay and return the same to the party of the first part, his executors, administrators and assigns. And for the better and more effectual execution of these presents and of the trusts hereby created, the party of the first part does hereby make, constitute and appoint the party of the second part, his true and lawful attorney, irrevocable, with full power and authority to do all the acts and things which may be necessary in the premises to the full execution of the trust hereby created and to ask, demand, recover and receive of and from all and every person or persons, all property debts and demands due, owing and belonging to said party of the first part and to give acquittances and discharges for the same; to sue, prosecute, defend and interplead for the same and execute, acknowledge and deliver all necessary deeds, instruments, con- veyances, receipts and releases necessary or proper for the ASSIGNMENT FOR BENEFIT OP CREDITORS 1107 General Assignment for Benefit of Creditors by Partnership execution of the trust hereby created, hereby revoking and confirming whatever the said party shall do in the premises. And the said party of the first part hereby authorizes the said party of the second part to sign the name of the said party of the first part to any check, draft, promissory note or other instrument in writing, which is payable to the order of the party of the first part, or to sign the name of the party of the first part to any instrument in writing whenever it shall be necessary so to do to carry into effect the object, design and purpose of this trust. And the party of the second part does hereby accept the trust created and reposed in him by these presents and does covenant and agree with the party of the first part that he will faithfully and without delay execute the said trust according to the best of his skill, knowledge and ability. In WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. John Jones (L. S.) William Brown (L. S.) State of New York County of New York On this day of , 19 , before me per- sonally came John Jones and William Brown,^ to me known and known to me to be the individuals described in and who exe- cuted the foregoing instrument and they severally acknowl- edged to me that they executed the same. {Signature and title of officer.) FORM NO. 594 General Assignment for the Benefit of Creditors by Partnership and Members Thereof of Firm and Individual Property, without Preferences This Indenture, made the day of , 19 , between A. B., residing at No. , Street, Borough of Manhattan, City and State of New York, C. D., ss: 1108 Bradbury's lawyers' manual General Assignment for Benefit of Creditors by Partnership residing at No. , Street, Borough of Manhattan, City and State of New York, carrying on the business of {state the general nature of the business), at No. , Street, Borough of Manhattan, City and State of New York, under the firm name and style of B and D., parties of the first part, and E. F., residing at No. , Street, Borough of Manhattan, City and State of New York, party of the second part: WITNESSETH That WHEREAS the said parties of the first part, as copartners under the firm name of B. and D., are indebted to sundry persons in divers and sundry sums of money and being unable to pay the same in full, are desirous of applying all the co- partnership and their individual property and assets to the payment of their copartnership and individual debts. Now, THEREFORE, the Said parties of the first part, in con- sideration of the premises and of one dollar paid to the party of the second part, upon 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 and set over unto the party of the second part, his successors and assigns, all and singular the estate and property, real and personal, of every kind and nature and wheresoever the same may be, of the said parties of the first part, which is now held or owned by them as such copartnership firm as aforesaid. To HAVE AND TO HOLD the Same and every part and parcel thereof, with the appurtenances, unto the party of the second part, his successors and assigns. In trust, nevertheless, for the following uses and purposes: 1. To receive and take possession of all and singular the estate and property above assigned, transferred and conveyed or intended so to be and to collect and secure all bills, promis- sory notes, accounts, choses in action, claims, demands and moneys due and owing, or to grow due to the said parties of the first part as such copartners, and with all reasonable dili- ASSIGNMENT FOR BENEFIT OF CREDITORS 1109 General Assignment for Benefit of Creditors by Partnersiiip gence to sell and dispose of the real and personal property hereinbefore conveyed and assigned and convert the said assigned property and estate into money. 2. And out of the proceeds to pay and discharge all the just and reasonable expenses, costs and charges of executing this assignment, and of carrying into effect the trust hereby created, together with the lawful commissions of the party of the second part, for his services in executing said trust. 3. And out of the residue of said proceeds to pay and dis- charge in full all and singular the debts and liabilities now due or to become due of the parties of the first part as such co- partners, with lawful costs and interest, if the residue of said proceeds applicable thereto, shall be sufficient for that pur- pose; and if the same be not sufficient then the said party of the second part shall apply such residue of said proceeds to the payment of said debts and liabilities in proportion to the respective amounts thereof. 4. And out of the residue and remainder of said proceeds, if any there shall remain, after paying all the debts and lia- bilities of such copartnership, the party of the second part is directed to pay and discharge all the private and individual debts of the parties of the first part or any of them, whether due or to grow due, provided the amount of the individual debts of each of the said parties does not exceed the portion of any surplus which may remain, after paying all the copart- nership debts, as aforesaid, to which he may be entitled; and if the amount of the individual debts of any of the parties of the first part should exceed his interest in the said surplus then his said interest is to be divided pro rata among his in- dividual creditors in proportion to the amounts of their re- spective demands. It being understood that no part of the said surplus to which either of the parties of the first part may be respectively en- titled after the pajonent of the copartnership debts, as afore- said, is to be made liable for the individual debts of either of the other parties of the first part; and Whereas, the said parties of the first part are individ- 1110 Bradbury's lawyers' manual General Assignment for Benefit of Creditors by Partnership ually justly indebted to sundry persons in divers and sundry sums and are respectively unable to pay the same in full, and are respectively desirous of making an equitable dis- tribution of their property and effects among their creditors; Now, THEREFORE, the Said parties of the first part, in con- sideration of the premises and of one dollar to each of them in hand paid by the party of the second part, upon the unsealing and delivery of these presents, the receipt whereof is hereby acknowledged, have each granted, bargained, sold, assigned, transferred and set over and by these presents do grant, bar- gain, sell, assign, transfer and set over unto the party of the second part, his successors and assigns, all and singular the said real and personal property of every kind and nature, and wheresoever the same may be, of each of the parties of the first part, which is now held or owned by them as separate and individual property or estate, expect such property as is by law exempt from levy and sale under an execution. To HAVE AND TO HOLD the Same and every part and parcel thereof, with the appm-tenances, unto the party of the second part, his successors and assigns, in trust, nevertheless, for the following uses and purposes : (a) To receive and take possession of all and singular the estate and property last above assigned and conveyed or in- tended so to be and to collect and secure all bills, promissory notes, accounts, choses in action, claims, demands and moneys due or owing to the said parties of the first part as individuals, and with reasonable diligence to sell and dispose of the real and personal property last hereinbefore conveyed and as- signed and convert the said assigned property and estate into money. (b) And out of the proceeds to pay and discharge all the just and reasonable expenses, costs and charges of executing this, assignment and carrying into effect the trust hereby created, together with the lawful commissions of the party of the second part for his services in executing the said trust. (c) And out of the residue of the said individual estates and property and proceeds thereof the party of the second ASSIGNMENT FOR BENEFIT OF CREDITORS 1111 General Assignment for Benefit of Creditors by Partnership part is directed to pay and discharge all the private and in- dividual debts of the parties of the first part or either of them, whether due or to grow due, as follows : To apply the proceeds of the estate and property of each of the said parties of the first part to the payment of the in- dividual debts of each of the parties of the first part, so that no part of the individual property or estate of the parties of the first part shall be devoted to the payment of the individual debts of either of the other parties of the first part; and if the residue of said proceeds of the individual estate and property of the parties of the first part or any of them shall not be suf- ficient to pay all the individual debts and liabilities of the said parties or party, with lawful costs and interest as hereinbefore provided, then to apply the said residue of said proceeds to the payment of the said debts and liabilities pro rata and in proportion to the respective amounts thereof; and if the in- dividual property of the parties of the fijst part or either of them shall be more than sufficient to pay their respective individual debts and liabilities, then to apply any surplus that may remain to the payment and liquidation of any bal- ance of the copartnership debts which may remain unpaid out of the proceeds of the copartnership property hereinbefore assigned; said surplus to be applied to the payment and liquida- tion of the said copartnership debts as hereinbefore provided. (d) And if, after the payment of all the costs, charges and expenses attending the execution of the trust herein created, and the payment of all the debts and liabilities of the said parties of the first part as such copartnership, and as individ- uals, in full, there shall be any remainder or residue of the proceeds or property hereinbefore assigned, to pay and return the same to the parties of the first part, their executors, ad- ministrators and assigns, according to their respective rights thereto. And for the better and more effectual execution of these presents and of the trusts hereby created, the parties of the first part do hereby make, constitute and appoint the party of the second part their true and lawful attorney, irrevocably, 1112 Bradbury's lawyers' manual General Assignment for Benefit of Creditors by Partnersliip with full power and authority to do all the acts and things which may be necessary in the premises to the full execution of the trust hereby created, and to ask, demand, recover and receive of and from all and every person or persons, or prop- erty, debts and demands due, owing and belonging to the said parties of the first part, or either or any of them and to give acquittances and discharges for the same; to sue, prosecute, defend and interplead for the same and to execute, acknowl- edge and deliver all necessary deeds, instruments and con- veyances. And the said parties of the first part hereby authorize the said party of the second part to sign or endorse their names or the copartnership name of the parties of the first part, to or upon any check, draft, promissory note or other instrument in writing, for the payment of money which is payable to the order of the parties of the first part, or in their copartnership name or otherwise, and to sign their names or the copartner- ship name to any instrument in writing, of any name, kind or nature which may be necessary to more fully carry into effect the object, design and purpose of this trust. And the party of the second part does hereby accept the trust created and reposed in him by these presents and does covenant and agree with the parties of the first part that he will faithfully and without delay execute the said trust ac- cording to the best of his skill, knowledge and ability. In witness whereof, the parties hereto have hereunto set •their hands and seals the day and year first above written. A. B. (L. S.) C. D. (L. S.) State of New York 1 , E. F. (L. S.) County of New York J On this day of , 19 , before me per- sonally appeared A. B., C. D. and E. F., to me known and known to me to be the individuals described in and who exe- cuted the foregoing instrument and they severally acknowl- edged to me that they executed the same. {Signature and title of officer.) ASSIGNMENT FOR BENEFIT OF CREDITORS 1113 Composition Agreement FORM NO. 595 Composition Agreement Whereas, A. B,, of No. , Street, Borougk of Manhattan, City and State of New York, hereinafter de- scribed as the Debtor, is justly indebted in divers sums of money to the undersigned, his several creditors, hereinafter described as the Creditors, and is unable, by reason of losses and business relations to satisfy the debts and claims of such creditors in full; and Whereas, the said creditors have agreed to accept cents for every dollar owing by the said debtor to said creditors in full satisfaction and discharge of all debts owing by said debtor to each of said creditors respectively; Now, therefore, we, the several creditors of said debtor, for ourselves, respectively and severally and for our respective and several heirs, executors, administrators and assigns, do covenant, promise and agree to and with the said debtor and to and with each other that we will accept and receive from the said debtor for each and every dollar that the said debtor owes to us and each of us the sum of cents to be paid by the said debtor to us, his several and respective creditors, as follows: per cent, of the several amounts in which the said debtor is indebted to each of us is to be paid by the said debtor to each of us, on or before the day of ,19 , in cash; per cent, of the several amounts due to each of us from the said debtor is to be paid in promis- sory notes, dated the day of , 19 , and payable four months after date, with interest at the rate of per cent, to be made by the said debtor and de- livered to each of us on or before the day of , 19 ; per cent, of the several amounts due to each of us from the said debtor, is to be paid in promissory notes, dated the day of , 19 , and payable twelve months after date, with interest at the rate of 1114 Bradbury's lawyers' manual Composition Agreement per cent, to be made by said debtor and delivered to each of us on or before the day of , 19 . And we, the said creditors, do further covenant and agree that neither we, nor any one of us, will, at any time, sue, arrest, molest or disturb the said debtor or his goods or chat- tels, for any debt or Uability now existing against the said debtor in favor of us or any one of us ; provided, however, that in case default be made by the said debtor in making the part payment in cash or in the delivery of the said notes on or before the day of , 19 , this agree- ment shall be void and of no effect; and provided, further, that this agreement shall not in any wise, prejudice or affect the rights or remedies of any creditor against any surety or sureties or any person or persons other than the debtor, his heirs, executors or administrators nor any security which any of us, his several and respective creditors, may have or claim for any debt or debts of the said debtor. It is further agreed that unless this composition agree- ment shall be accepted by all the creditors of the said debtor and shall be signed by all of them on or before the day of , 19 , these presents shall be void and of no effect. It is also expressly agreed that all of the covenants and agreements and conditions herein contained shall extend to and bind our several and respective executors, administrators and assigns, as well as ourselves, respectively and severally. In witness whereof, we, the said several creditors of the said , have hereunto set our respective hands and seals this day of , 19 . {Signatures of all the creditors.) {Usually it is not practicable to get the acknowledgments of all the creditors in a case of this kind and it is rarely done. Some- times a schedule of all the creditors giving the amount of the debt of each is appended to the composition agreement). CHAPTER LI TITLE TO REAL PROPERTY FORMS NO. PAGE 596. Agreement for sale of prop- erty 1115 597. Contract for exchange of property 1119 698. New York short form of full covenant and warranty deed 1122 599. Bargain and sale deed 1124 600. Quit claim deed 1125 601. Executor's deed 1126 602. Referee's deed in foreclosure . 1128 603. Referee's deed in partition. . 1130 604. Administrator's deed 1132 605. Guardian's deed 1136 606. Referee's deed in mortgage cases, another form 1138 607. Referee's deed in partition, another form 1140 NO. PAGE 609. Sheriff's deed in mortgage cases 1142 610. Sheriff's deed on sale under an execution 1143 611. Deed by committee of a lunatic 1145 612. Deed of a watercourse 1147 613. Sheriff's certificate of sale. . . 1148 614. Assignment of sheriff's certif- \j icate of sale endorsed on the certificate 1149 615. Release of dower 1149 616. Release of dower by endorse- ment on a deed 1150 617. Release of part of mort- gaged premises 1151 618. Affidavit of title 1153 FORM NO. 596 Agreement for Sale of Property ^ Agreement, made the day of > 19 , between John Jones, residing at No. , Street, Bor- ough of Manhattan, City of New York, hereinafter described 1 The observance of the following suggestions will save time and trouble at the closing of the Title: The Seller should have: First: Should bring with him all insurance policies and duplicates. Second: He should also bring the tax and water receipts of the current year, and any leases, deeds and agreements relating to the premises. Third: When there is a water meter on the premises it should be read. Fourth: If there are mortgages on the premises to be conveyed, the seller should produce receipt showing to what date the interest has been paid, and if 1115 1116 Bradbury's lawyers' manual Agreement for Sale of Property as the seller, and William Brown, who resides at No. , Street, Borough of Manhattan, City of New York, hereinafter described as the purchaser, WITNESSETH, that the seller agrees to sell and convey and the purchaser agrees to purchase all that lot or parcel of land, with the buildings and improvements thereon, in the (descrip- tion of property as in deed) . Subject to (if there are any liens on the property by way of mortgages, easements, restrictive covermnts in former deeds, or other incumbrances subject to which the property is to be sold, specify them here) . The price is ten thousand dollars, payable as foUows: five hundred dollars on the signing of this contract, the receipt of which is hereby acknowledged. Three thousand dollars in cash on the delivery of the deed as hereinafter provided. The execution and delivery by the purchaser of a bond and purchase money mortgage on said premises of sixty-five hun- dred doUars, payable in three years with interest at the rate of five per centum per annum payable semi-annually with usual tax, assessment, insurance and receivership clauses. The deed shall be dehvered upon the receipt of said pay- the principal has been reduced, evidence of such reduction, in form to be recorded, must be produced and recorded. Fifth: If the grantor is a married man, his wife must join in the execution of the deed. Sixth: The seller should furnish to the purchaser a full Ust of tenants, giving the names, rent paid by each and date to which rent has been paid. The Pukchasek should have: Either money or a certified check drawn to his own order. The certified check may be for an approximate amount and money may be provided for the balance of the settlement. If a building on the premises be occupied by three or more families, the pur- chaser should obtain, at the time of signing the contract, a written request (signed by the owner with his fuU name) to the Tenement House Department, to make searches for violations of the Tenement House Law. Time is not of the essence of a contract for the conveyance of real property unless specifically made so by a provision in the contract. Scuddcr v, Lehman, 1 Beadbury'.s Pl. & Pr. Rep. 221. For complaint in an action by a vendee against a vendor to compel specific performance of the contract of sale of real property from the case of Bobbins v. Clock, 203 N. Y. 603, see 2 Bradbury's Pl. & Pb. Rep. 89. TITLE TO REAL PROPERTY 1117 Agreement for Sale of Property ments at the office of Ely Franklin, at No. 31 Nassau St., New York City, at 12 o'clock noon on the day of ,19 . Rents and interest on mortgages, and insurance if any, are to be apportioned. If there be a water meter on the premises, the seller shall furnish a reading to a date not more than thirty days prior to date herein set for closing title and the unfixed meter charge for the intervening time shall be apportioned on the basis of such last meter reading. If at the time for the delivery of the deed the premises or any part thereof shall be or shall have been affected by any assessment or assessments which are or may become payable in annual installments of which the first installment is then due or has been paid, then for the purposes of this contract all the unpaid installments of any such assessment, including those which are to become due and payable after the delivery of the deed, shall be deemed to be due and payable and to be liens upon the premises affected thereby and shall be paid and discharged by the seller thereof, upon the delivery of the deed. The deed shall be in proper statutory short form for record, shall contain the usual full covenants and warranty, and shall be duly executed and acknowledged by the seller, at the seller's expense, so as to convey to the purchaser the fee simple of the said premises, free of all incumbrances except as herein stated. This sale covers all right, title and interest of the seller of, in and to any land lying in the bed of any street, road or avenue opened or proposed, in front of or adjoining said premises to the center line thereof, or all right, title and interest of seller in and to any award made or to be made in lieu thereof, and in any award for damages to said premises by reason of change of grade of any street, and the seller will execute and deliver to the purchaser, on the closing of title, or thereafter, on de- mand, all proper instruments for the conveyance of such title and the assignment and collection of such award. All personal property appurtenant to or used in the opera- 1118 Bradbury's lawyers' manual Agreement fer Sale of Property tion of said premises is represented to be owned by the seller and is included in this sale. All notes or notices of violation of law or municipal ordi- nances, orders or requirements noted in or issued by any De- partment of the City and State of New York, against or affect- ing the premises at the date hereof, shall be compUed with by the seller and the premises shall be conveyed free of the same. The seller shall furnish the purchaser with an authorization to make the necessary searches therefor. All sums paid on account of this contract and the reasonable expense of the examination of the title to said premises are hereby made liens thereon, but such liens shall not continue after default by the purchaser under this contract. The risk of loss or damage to said premises by fire until the dehvery of the deed is assumed by the seller. The stipulations herein are to apply to and bind the heirs, executors, administrators, successors and assigns of the re- spective parties. " The seller agrees that Edward Jordan brought about this sale and agrees to pay the broker's commission therefor. Witness the signatures and seals of the above parties. In presence of: Ely Franklin. John Jones [L. S.] Geo. Henry. William Brown [L. S.] State of New York 1 r SS County of New York J On this day of , 19 , before me personally came John Jones and Wilham Brown, to me known, and known to me to be the individuals described in and who executed the foregoing instrument, and they severally acknowledged that they executed the same. {Signature and title of officer.) Or State of New York 1 f SS ' County of New York j On this day of , 19 , before me personally came John Jones and WiUiam Brown, proven to TITLE TO REAL PROPERTY 1119 Contract for Exchange of Property me to my satisfaction to be the individuals described in and who executed the foregoing instrument, by the oath of Ely Franklin, to me known, who, being by me duly sworn at the same time that the said John Jones and William Brown appeared before me as aforesaid, did depose and say, that he resides at No. , Street, New York City, that he knows said John Jones and Wilham Brown, and knows them to be said individuals, and said John Jones and William Brown thereupon severally duly acknowledged that they executed said instrument. (Signature and title of officer.) FORM NO. 597 Contract for Exchange of Property ' Agreement, for the exchange of property, made "and dated between John Jones who resides at No. , Street, Borough of Manhattan, City and State of New York, herein designated as the party of the first part, and William Brown, who resides at No. , Street, Borough of Brooklyn, City and State of New York, herein designated as the party of the second part, WITNESSETH : The party of the first part, in consideration of one dollar paid, the receipt of which is hereby acknowledged, and also in consideration of the conveyance by the party of the second part of the premises hereinafter secondly described. ' At the closing of the title each of the parties should produce all insurance poUcies and duplicates, if the same are in their possession, or a memoran4um thereof, if held by others; also produce the tax and water receipts of the current year and any leases, deeds or agreements relating to the premises. Each of the parties should produce a deed in accordance with the terms of the contract, duly executed and acknowledged. If either of the parties is a married man, his wife must be a party to and join in the execution of the deed. If there is a mortgage on either of the premises, the receipts should be produced showing to what date the interest has been paid, and if the principal has been reduced, evidence of such reduction, in form to be recorded, must be produced and recorded. 1120 Bradbury's lawyers' manual Contract for Exchange of Property hereby agrees to sell and convey to the party of the second part, at a valuation for the purposes of this contract of fifteen thousand dollars, all that lot or parcel of land, with the build- ings and improvements thereon, in the (description of property as in deed). The party of the second part, in consideration of one dollar paid, the receipt of which is hereby acknowledged, and also in consideration of such conveyance by the party of the first part, agrees to sell and convey to the party of the first part, at a valuation for the purposes of this contract of ten thousand dollars, all that lot or parcel of land, with the buildings and improvements thereon, in the (description of property as in deed). The premises which are to be conveyed by the party of the first part are to be conveyed subject to the following incum- brances: (specify any mortgages, easements, restrictive covenants in former deeds or other incumbrances on the property) . The premises which are to be conveyed by the party of the second part are to be conveyed subject to the following in- cumbrances : (specify any liens hy way of mortgages, easements, restrictive covenants in former deeds or other incumbrances on the property). The difference between the values of the respective premises, over and above incumbrances shall be deemed, for the pur- poses of this contract, to be one thousand dollars, and that sum shall be due and payable by the party of the (first) part to the party of the second part as follows: three hundred dollars on the signing of thig contract the receipt whereof is hereby ac- knowledged, and seven hundred dollars on the closing of the title as herein provided. The deeds shall be deUvered and exchanged upon the re- ceipt of said payments at the ofiice of Ely Franklin, No. , Broadway, Borough of Manhattan, New York City, at twelve o'clock noon on the day of , 19 . Rents, interest on mortgages and insurance if any are to be appor- tioned. If there be a water meter on either of the premises, the seller TITLE TO REAL PROPERTY 1121 Contract for Exchange of Property thereof shall furnish a reading to a date not more than thirty- days prior to date herein set for closing title and the unfixed meter charge for the intervening time shall be apportioned on the basis of such last meter reading. If, at the time for the delivery of the deeds, either of the premises or any part thereof shall be or shall have been af- fected by any assessment or assessments which are or may become payable in annual installments of which the first in- stallment is then due or has been paid, then for the purposes of this contract all the unpaid installments of any such assess- ment, including those which are to become due and payable after the delivery of the deed, shall be deemed to be due and payable and to be liens upon the premises affected thereby and shall be paid and discharged by the seller thereof, upon the delivery of the deed. Each deed shall be in proper statutory short form for record, shall contain the usual full covenants and warranty, and shall be duly executed and acknowledged by the seller, at the seller's expense, so as to convey to the purchaser the fee simple of the premises respectively therein described free of all incum- brances except as herein stated. This sale covers all right, title and interest of the seller of, in and to any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining said premises, to the center line thereof, or all right, title, and interest of seller in and to any award made or to be made in lieu thereof, and in any award for damages to said premises by reason of change of grade of any street and the seller will execute and deliver to the purchaser, on closing of title, or thereafter, on demand, all proper instruments for the conveyance of such title and the assignment and collection of such award. All personal property appurtenant to or used in the opera- tion of either of said premises is represented to be owned by the seller thereof and is included in this sale. All notes or notices of violation of law or municipal ordi- nances, orders or requirements noted in or issued by any De- partment of the City of New York against or affecting the 1122 Bradbury's lawyers' manual New York Short Form of Full Covenant and Warranty Deed premises at the date hereof, shall be complied with by the seller and the premises shall be conveyed free of the same. The seller shall furnish the purchaser with an authorization to make the necessary searches therefor. All sums paid on account of this contract and the reasonable expense of the examination of the title to said premises are hereby made liens thereon, but such Uens shall not continue after default by the purchaser under this contract. The risk of loss or damage to said premises by fire until the delivery of the deed is assumed by thp seller of each of said premises respectively. The stipulations herein are to apply to and bind the heirs, executors, administrators, successors and assigns of the re- spective parties. Witness the signatures and seals of the above parties. In presence of John Jones [L. S.] William Brown [L. S.] State op New York 1 County of New York j On this day of , 19 , before me, the undersigned, personally came John Jones and Wilham Brown to me personally known, and known to me to be the individuals described in and who executed the foregoing instrument, and they severally acknowledged before me that they had executed the same. (Signature and title of officer.) FORM NO. 598 New York Short Form of Full Covenant and Warranty Deed This indenture, made the day of , 19 , between John Jones who resides at No. , Street, Borough of Manhattan, City and State of New York (and Mary Jones, his wife, who resides at the same place) (or, who is unmarried) party of the first part, and William Brown TITLE TO REAL PROPERTY 1123 New York Short Form of Full Covenant and Warranty Deed who resides at No. , Street, Borough of Brook- lyn, City and State of New York, party of the second part : WITNESSETH, that the said party of the first part, in considera- tion of ten dollars, lawful money of the United States, paid by the party of the second part, does hereby grant and release unto the said party of the second part, his heirs and assigns forever, all {description of property). Subject, however, to {specify any liens on the property by way of mortgages, ease- ments, restrictive covenants in former deeds or other incumbrances specified in the contract of sale or as to which the property is to be sold). Together with the appurtenances and all the estate and rights of the party of the first part, in and to said premises. To HAVE AND TO HOLD the above-granted premises unto the said party of the second part, heirs and assigns forever. And the said John Jones does covenant with said party of the second part as follows: First: That said John Jones is seized of the said premises in fee simple, and has good right to convey the same. Second: That the party of the second part shall quietly enjoy the said premises. Third: That the said premises are free from incumbrances (except as' aforesaid). Fourth: That the party of the first part will execute or procure any further necessary assurance of the title to said premises. Fifth: That the said John Jones (subject to the incum- brances aforesaid) will forever warrant the title to said premises. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. In the presence of: John Jones, [L. S.] William Williams. 1124 Bradbury's lawyers' manual Bargain and Sale Deed State or New York County of New York City of New York ss: On this day of > 19 , before me came John Jones (and Mary Jones, his wife) to me known to be the individual described in and who executed the foregoing in- strument, and acknowledged that he executed the same. (Signature and title of officer.) Or, State of New York] City of New York ss: County of On this day of > 19 , before me per- sonally came William Williams, the subscribing witness to the foregoing instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say, that he re- sided at the time of the execution of said instrument, and still resides at No. , Street, Manhattan Borough, New York City; that he is and then was acquainted with John Jones and knew him to be the individual described in and who executed the foregoing instrument; and that he, said sub- scribing witness, was present and saw him execute the same; and that he, said witness, at the same time subscribed his name as witness thereto. {Signature and title of officer.) FORM NO. 599 Bargain and Sale Deed (New York Register's Form) This indenture, made the ^ day of , 19 , between John Jones, who resides at No. , Street, Borough of Manhattan, City and State of New York, party of the first part, and William Brown, who resides at TITLE TO REAL PROPERTY 1125 Quit Claim Deed No. , Street, Borough of Manhattan, City and State of New York; WITNESSETH That the party of the first part, in consideration of dollars, lav/ful money of the United States (and other good and valuable considerations), paid by the party of the second part, does hereby grant and release unto the party of the second part, his heirs and assigns forever, all (description of property), sub- ject, HOWEVER (here specify any liens on the property by way of mortgages, easements, restrictive covenants in former deeds or other incumbrances specified in the contract of sale, as to which the property is to be sold), Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. To HAVE AND TO HOLD the premises herein granted unto the party of the second part, his heirs and assigns forever, subject to the liens and incumbrances hereinbefore specified. And the said John Jones covenants that he has not done or suffered anything whereby the said premises have been en- cumbered in any way whatsoever except as hereinbefore spec- ified. In witness whereof, the party of the first part has hereunto set his hand and seal the day and year first above written. John Jones (L. S.) {Acknowledgment as in Form No. 598.) FORM NO. 600 Quit Claim Deed (New York Register's Form) This indenture, made the day of , 19 , between John Jones, who resides at No. , Street, Borough of Manhattan, City and State of New York, party of the first part, and William Brown, who resides at No. 1126 Bradbury's lawyers' manual Executor's Deed , Street, Borough of Manhattan, City and State of New York; WITNESSETH That the party of the first part, in consideration of dollars, lawful money of the United States (and other good and valuable considerations), paid by the party of the second part, does hereby release, remise and quit claim unto the party of the second part, his heirs and assigns, forever all (description of property), subject, however, (here specify any liens on the property hy way of mortgages, easements, restrictive covenants in former deeds or other incumbrances specified in the contract of sale, as to which the property is to be sold). Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. To have and to hold the premises herein granted unto the party of the second part, his heirs and assigns forever, subject to the liens and incumbrances hereinbefore specified. In witness whereof, the party of the first part has hereunto set his hand and seal the day and year first above written. John Jones (L. S.) (Acknowledgment as in Form No. 598) FORM NO. 601 Executor's Deed (New York Register's Form) This indenture, made the day of , 19 , between John Jones, residing at No. , Street, Borough of Manhattan, City and State of New York, as Executor under the last Will and Testament of William Jones, deceased, late of the County of New York, party of the first part, and William Brown, who resides at No. , Street, Borough of Manhattan, City and State of New York, party of the second part; TITLE TO REAL PROPERTY 1127 Executor's Deed WITNESSETH That the party of the first part, by virtue of the power and authority to him given in and by said last Will and Testament, and in consideration of dollars, lawful money of the United States to him paid by the party of the second part, the receipt whereof is hereby acknowledged, does hereby grant and release unto the party of the second part, his heirs and assigns forever, all {add description). Subject, however to {specify any liens on the property by way of mortgages, easements, restrictive covenants in former deeds or other encumbrances specified in the contract of sale or as to which the property is to be sold.) Together with the appurtenances and also all the estate which said testator had at the time of his decease in said prem- ises and also the estate which the party of the first part has or has power to convey or dispose of, whether individually or by virtue of saM will or otherwise. To HAVE AND TO HOLD the premises hereinafter granted unto the said party of the second part, his heirs and assigns forever, subject to the liens and incumbrances aforesaid, and the party of the first part covenants that he has not done or suffered anything whereby the said premises have been encumbered in any way whatsoever, except as herein stated. In WITNESS WHEREOF, the party of the first part has here- unto set his hand and seal the day and year first above written. John Jones (L. S.) As Executor under the Last Will and Testament of William Jones, deceased. State of New York | . I County of New York J On this day of ? 19 , before me came John Jones to me known and known to me to be the individual described in and who executed the foregoing instrument and he acknowledged that he executed the same as such executor. {Signature and title of officer.) 1128 Bradbury's lawyers' manual Referee's Deed in Foreclosure FORM NO. 602 Referee's Deed in Foreclosure (New York Register's Form) This indenture, made the day of , 19 , between A. B., Referee duly appointed as hereinafter mentioned, party of the first part, and C. D., residing at No. , Street in the Borough of Manhattan, City and State of New York, party of the second part, Whereas, at a Special Term of the New York Supreme Court, New York County, a final judgment of foreclosure and sale was duly filed and entered on the day of ,19 , in which, it was among other things ordered, ad- judged and decreed by said Court in a certain ^action then pending in said Court between G. H., plaintiff, and E. F. {names of other defendants), defendants. That all and singular the mortgaged premises described and mentioned in the complaint in said action, and described in said judgment, or such part thereof as might be sufficient to discharge the mortgage debt, the expenses of the sale and costs in said action, and which might be sold separately with- out material injury to the parties interested, be sold at public auction according to law and the course and practice of said Court, by or under the direction of said party of the first part as Referee thereby duly appointed for that purpose; that said Referee give public notice of the time and place of such sale according to law and the course and practice of said Court, and that any of the parties to said action might become a pur- chaser or purchasers at such sale; that the Referee execute to the purchaser or purchasers of said mortgaged premises, or such part or parts thereof as should be sold, a good and ,suffi- cient deed or deeds of conveyance for the same. And whereas, said Referee in pursuance of said judgment, did, on the day of , 19 , sell at pubUc TITLE TO REAL PROPERTY 1129 Referee's Deed in Foreclosure auction at {give place of sale) the premises hereinafter described, being in said judgment mentioned, due notice of the time and place of such sale having first been given, pursuant to said judgment, at which sale said premises were struck off to C. D., the party of the second part, for the sum of dollars, lawful money of the United States, that being the highest sum bidden for same. Now THIS INDENTURE WITNESSETH, that said Referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment of said Court, and in conformity with the statute in such case made and provided, and also in consideration of the premises, and of said sum of money so bidden as aforesaid, paid by the party of the second part, does hereby grant and convey unto the party of the second part, his heirs and assigns forever, All {description of property) . To HAVE AND TO HOLD the premises herein granted unto the party of the second part, his heirs and assigns forever. In witness whereof, the party of the first part has here- unto set his hand and seal the day and year first above written. In presence of A. B. (L. S.), as Referee. State of County of On the day of , 19 , before me came A. B., to me known to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same. {Signature and title of officer.) ■ ss: 1130 Bradbury's lawyers' manual Referee's Deed in Partition, FORM NO. 603 Referee's Deed in Partition (New York Register's Form) This indenture, made the day of , 19 , between A. B., Referee duly appointed as hereinafter mentioned, party of the first part, and C. D., residing at No. , Street, Borough of Manhattan, City and State of New York, party of the second part, Whereas, at a Special Term of the New York Supreme Court, New York County, a final judgment of partition was duly filed and entered on the day of , 19 , in which it was among other things ordered, adjudged and decreed by said Court, in a certain action then pending in said Court between G. H., plaintiff, and E. F. {names of other defendants), defendants, That all and singular the premises mentioned in the com- plaint in said action, be sold at public auction, according to the course and practice of said Court, by or under the direction of said party of the first part as Referee thereby duly appointed for that purpose, and to whom it was referred by said Court, among other things, to make such sale ; that the Referee give public notice of the time and place of such sale according to law and the course and practice of said Court, and that any of the parties in said action might become a purchaser or pur- chasers at such sale; that said Referee, after said sale, make report thereof to said Court, and after h report of sale shall have been duly confirmed, then that he execute to the purchaser or purchasers of said premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of conveyance for the same. And whereas, said Referee in pursuance of said judgment, did, on the day of , 19 , sell at public auction at {give place of sale) the premises hereinafter described. TITLE TO REAL PROPERTY 1131 Referee's Deed in Partition being in said judgment mentioned, due notice of the time and place of such sale having first been given, pursuant to said judgment, at which sale said premises were struck off to C. D., the party of the second part, for the sum of dollars, lawful money of the United States, that being the highest sum bidden for same, and said Referee's report of said sale having been duly confirmed, Now THIS INDENTURE WITNESSETH, that Said Referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment of said Court, and in conformity with the statute in such case made and provided, and also in consideration of the premises, and of said sum of money so bidden as aforesaid, paid by the party of the second part, does hereby grant and convey unto the party of the second part, his heirs and assigns forever, All (description of property). To HAVE AND TO HOLD the premises herein granted unto the party of the second part, his heirs and assigns forever. In witness whereof, the party of the first part has here- unto set his hand and seal the day and year first above written. In presence of A. B. (L. S.), as Referee. State of New York SS ' County of New York On the day of , 19 , before me came A. B., to me known to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same. (Signature and title of officer.) 1132 uhadbury's lawyers' manual Administrator's Deed FORM NO. 604 Administrator's Deed This indenture, made the day of j 19 , between , administrat of , late of the of , deceased, of the first part, and residing at No. , Street, City of party of the Second Part, witnesseth: Whereas, , Esquire, surrogate of the county of , heretofore made an order, which said order is in the words and figures following, to-wit: " , the of , late of the of , de- ceased, having heretofore presented to the surrogate of the county of , application for authority to mortgage, lease, or sell so much of the real estate of the said deceased as shall be necessary to pay h debts, and the said surrogate, upon such application, having made an order directing all persons interested in the estate of the said , de- ceased, to appear before him, at the surrogate's office in the of , on the day of , 19 > at 10 o'clock in the forenoon, to show cause why such authority should not be given to the said , and on reading and filing satisfactory proof, by affidavit, of the due publication of the said order, and of the due service thereof, on every person in the occupation of the premises of which a sale is desired, and on the widow and heirs of the said deceased; and the said , having this day appeared in person, and by , proctor, , and the proper proceedings in due form of law having been thereupon had, and the surrogate, upon due examination, being satisfied that the said ha fully complied with the requisite provisions of the statutes concern- ing the powers and duties of executors and administrators in relation to the sale and disposition of the real estate of their testator or intestate; that the debts, for the purpose of satisfy- ing which the said application is made, are justly due and TITLE TO KEAL PROPERTY 113^ Administrator's Deed owing, and that they are not seoured by judgment or mortgage upon, or expressly charged on the real estate of the said de- ceased, and that the same amount to dollars and cents, exclusive of interest, and that the personal estate of the said deceased is insufficient for the payment of such debts; and having satisfactory evidence that the said ha proceeded with reasonable diligence in con- verting the personal property of the said deceased into money, and applying the same to the payment of such debts, and hav- ing inquired and ascertained whether sufficient moneys for the payment of such debts aforesaid can be raised, by mortgaging or leasing the real property of the; said deceased, or any part thereof, and it appearing that the moneys required cannot be raised by mortgage or lease advantageously to the estate of the said deceased, and the said , as aforesaid, having executed a bond to the people of this State, with sufficient sureties, approved by the said surrogate, in the penalty and with the condition prescribed by the statute in such case made and provided, which said bond is filed with the said surrogate : "It is thereupon ordered, and the surrogate aforesaid, piu"- suant to the statutes aforesaid, doth order that the said , as aforesaid, sell the following described real estate whereof the said deceased died seized, to enable h to pay such debts aforesaid of the said deceased, that is to say: (de- scription of property) . And it is further ordered and directed, that the said " may give to the purchaser at such sale of any of the said real estate, a credit not exceeding two years, for not more than one-half of the purchase money of such real estate purchased by h , to be secured by a bond of the said purchaser, and by a mortgage of the premises' to , sold at the said sale. " And it is further ordered, that the said do make return, according to law, of all sales made by virtue of this order." And, whereas, the whole of the premises described in the said order have accordingly been sold at public vendue, by the 1134 Bradbury's lawyers' manual Administrator's Deed said part of the first part, on the day of ,19 , at the , in the county of , that being the county where the said premises are situated, due notice of the time and place of the holding such sale having been given according to law; and, whereas, the said part of the first part did make return of h proceedings upon such order of sale to the said surrogate, in pursuance of the said order, and of the statute in such case made and provided ; and, whereas, afterwards, the said surrogate, after examining the said proceedings, did make an order in the words and figures following, to-wit: " An order having been duly made by the surrogate of the County of , on the day of , in the year 19 , authorizing , the of , late of the of , deceased, to sell the real estate whereof the said deceased died seized, men- tioned and described in the said order, to enable h to pay the debts therein mentioned of the said deceased, and the said , having this day made return of proceedings upon the said order, by which said re- turn it appears that under the said order, the said , after having posted and published due notice of the time and place of holding the said sale according to law, did on the day of , in the year 19 , at o'clock, noon, the time mentioned in the said notice, and between the hour of nine in the morning and setting of the sun of the same day, at , the place mentioned in the said notice, sell at public vendue, the whole of the premises mentioned and described in the said order, and that he did, on the said sale, sell the premises described in the said order, as follows: To , for the sum of dollars, that being the highest sum bid for the same, and he being the highest bidder therefor. " And the said , having this day appeared before the surrogate, in h own proper person and by , h counsel, and having moved for an order confirming the said sale, and , and the surrogate having examined TITLE TO REAL PROPERTY 1135 Administrator's Deed the proceedings upon the aforesaid order of sale, and having examined the said , on oath, touching the same; and it appearing to the surrogate that the said sale was legally made and fairly conducted, and that the sum bid for the lot and parcel of the real estate so sold, not disproportionate to value. " It is ordered and decreed, and the surrogate, pursuant to the provisions of the statutes concerning the powers and duties of executors and administrators, in relation to the sale and dis- position of the real estate of their testator, or intestate, doth order and decree, that the said sale of the said real estate, so as aforesaid made by the said , be and the same is hereby confirmed. And the said surrogate, pursuant to the provisions of the statutes aforesaid, doth further order and direct the said , as aforesaid, to execute convey- ance of the said lot and parcel of the said real estate so sold by h as aforesaid to the purchaser thereof at the said sale." And, whereas, the said part of the first part did, at the said sale, sell to the said part of the second part, he being the highest bidder for the same, the lands and premises hereinbefore described ; Now, this indenture further witnesseth. That the said part of the first part, in pursuance of the said sale, and of the said orders of the surrogate, and in pursuance of the statutes of this State, in such case made and provided, and also for and in consideration of the sum of dollars, lawful money of the United States of America, to h in hand paid by the said part of the second part, the receipt whereof is hereby acknowledged, ha bargained, sold, and conveyed, and by these presents do bargain, sell, and convey unto the said part of the second part, heirs and assigns for- ever, all and singular the premises hereinbefore described, to- gether with the privileges and appurtenances thereunto belong- ing or in any way appertaining, and all the estate, right, and interest which the said , deceased, at the time of h death; had of, in, and to the same, free and discharged 1136 Bradbury's lawyers' manual Guardian's Deed from all claims for dower of , widow of the said , deceased; subject, however, to all charges by judg- ment, mortgage, or otherwise, upon the lands so sold, existing at the time of the death of the said To have and to hold the above-described and conveyed premises, with the appurtenances, and all the estate, right, and interest which the said at the time of death had therein, unto the said part of the second part, heirs and assigns forever, as fully and amply as the said part of the first part might, could, or ought to sell and convey the same, by virtue of the orders above recited, and of the statutes of this State made and provided. In witness whereof, the said part of the first part, hereunto set hand and seal , the day and year first above written. Sealed and delivered in the presence of [Acknowledgment.] FORM NO. 605 Guardian's Deed This indenture, made the 'day of , 19 , between , infant , under the age of , by , special guardian, of the first part, and , residing at No. , Street, City of , party of the second part, witnesseth : ' Whereas, the above-named infant , by , heretofore presented to the Court of , a petition praying for a sale of the right, title, and interest of the said infant , in the premises in said petition mentioned and hereinafter described. Upon which petition, an order of the said court was made, at a term thereof, held at , in the , county of , bearing date the day of ) 19 , appointing , above named, the special guardian of such infant , for the purposes of the said application, and directing that it TITLE TO REAL PROPERTY 1137 Guardian's Deed be referred to , a referee, to ascertain the truth "o'f the facts in such petition alleged; and, thereupon, after the^sstid special guardian had given the security by law required, and the same had been duly approved and filed, such proceedings were afterwards had, that by an order of the said Court, made at a terzn thereof, held at in the county of , bearing date the day of , in the year 19 , it was, among other things, in substance ordered, that the above-named , as special guardian of such infant , be authorized to con- tract for the sale and conveyance of the right, title, and in- terest of the said infant , in such real estate, for a sum not less than that specified in the referee's report in said order mentioned ; and that such sale, with the name of the purchaser , and the terms thereof, be reported to the said court before the conveyance of such premises should be executed. And, whereas, the said special guardian, upon terms, and in the manner authorized by the said last-mentioned order, con- tracted for the sale of the said premises with , for the sum of dollars, that being the highest simi offered for the same; and thereupon the said guardian made his report on oath, of such agreement, to this court, pursuant to the requisitions of the last-recited order, upon which an order was made, at a term of said court, held at the in the county of , bearing date the day of ,19 , confirming such report, approving and confirming such sale, and directing the same to be carried into effect, and ordering the said guardian to execute, acknowledge, and deUver a deed of said premises to said part of the second part on complying with. the terms on which by said agreement the same was to be delivered. And, whereas, the said part of the second part ha com- plied with the said terms, now, therefore, this indenture wit- nesseth : That the said part of the first part, by , special guardian, for and in consideration of dollars, to in hand paid, before the ensealing and delivery of these presents, ha bargained, sold, granted, released, and 1138 BRADBURY'S LAWYERS' MANUAL Referee's Deed in Mortgage Cases, Another Form conveyed, and by these presents do bargain, sell, grant, release, and convey unto , the said part of the second part, heirs and assigns, forever, all With the possession and claina of the part of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances, to have and to hold the same unto the said part of the second part, heirs and assigns, to , and their only benefit and behoof forever. In witness whereof, the said part of the first part, by , guardian aforesaid, ha hereunto set hand and seal , the day and year first above written. Sealed and delivered in the presence of: [Acknowledgment.] Infant, By B., Giiardian. FORM NO. 606 Referee's Deed in Mortgage Cases, Another Form This indenture, made this day of , 19 , between , referee in the action hereinafter men- tioned, of the first part, and , residing at No. , Street, City of , party of the second part: Whereas, at a Term of the Court of , held at , on the day of , 19 , it was, among other things, ordered, ad- judged, and decreed by the said court, in a certain action then pending in the said court between {names of parties), that all and singular the premises described in a mortgage executed by to , and recorded in county clerk's office, in liber , at page , and being the same premises mentioned in the complaint in said action, and in said judgment described, or so much thereof as might be sufficient to raise the amount due to the plaintiff for principal, TITLE TO REAL PROPERTY 1139 Referee's Deed in Mortgage Cases, Another Form interest, and costs in said action, and which might be sold separately without material injury to the parties interested, be sold at public auction according to the course and practice of said court, by or under the direction of the said , who was appointed a referee in said action, and to whom it was referred by the said order and judgment of the said court, among other things, to make such sale; that the said sale be made in the county where the said mortgaged premises, or the greater part thereof, are situated; that the said referee give public notice of the time and place of such sale, according to the course and practice of said court, and that any of the parties in said action might become a purchaser or purchasers on such sale; that the said referee execute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as shall be sold, a good and sufficient deed or deeds of conveyance for the same. And, whereas, the said referee, in pursuance of the order and judgment of the said court, did, on the day of , 19 , sell at public auction at , the premises in said order and judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said order; at which sale the premises hereinafter described were struck off to the said party of the second part, for the siun of dollars, that being "the highest sum bidden for the same : Now, this indenture witnesseth: That the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the order and judgment of the said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden as afore- said, having been first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part, the right, title and interest of in and to all that tract or parcel of land situate in the of (description), to have and to hold, all and singular the premises above mentioned 1140 Bradbury's lawyers' manual Referee's Deed in Partition, Another Form and described, and hereby conveyed unto the said party of the second part, heirs and assigns forever. In witness whereof, the said party of the first part, referee as aforesaid, hath hereunto set his hand and seal, the day and year first above written. Sealed and delivered in the presence of [A cknowledgment.] FORM NO 607 Referee's Deed in Partition, Another Form This indenture, made this day of , 19 , between , referee in the action hereinafter men- tioned, of the 'first part, and , residing at No. , Street, in the City of , party of the second part; Whereas, at a Special Term of the Court of , held at , on the day of ,19 , it was, among other things, ordered, adjudged, and decreed by the said court, in a certain action then pending in the said court, between , that all and singular the premises mentioned in the complaint in said action, and hereinafter described, be sold at public auction, according to the course and practice of said court, by or under the direction of the said , who was appointed a referee in said action, and to whom it was referred by the said order and judgment of the said court, among other things, to make such sale; that the said sale be made in the county where the said premises, or the greater part thereof, are situated; that the referee give pubUc notice of the time and place of such sale, according to law and the rules and practice of said court, and that any of the parties in said action might become a purchaser or purchasers on such sale; that the said referee, after said sale, make report thereof to said court, execute to the purchaser or purchasers of the said premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of con- \'eyance for the same. TITLE TO REAL PROPERTY 1141 Referee's Deed in Partition, Another Form And, whereas, the said referee, in pursuance of the order and judgment of the said court, did, on the day of ,19 , sell at public auction, at , the premises in the said order and judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said order; at which sale the premises herein- after described were struck Off to the said part of the second part, for the sum of dollars, that being the highest sum bidden for the same, and the said referee's report of said sale having been duly confirmed by the court, directing the said to execute the proper conveyances pursuant to the sale, and also directing concerning the appUca- tion of the proceeds of the sale: Now, this indenture witnesseth: That the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the order and judgment of said court, and in conformity to the statute in such case made and provided, and also in considera- tion of the premises, and of the said sum of money so bidden as aforesaid, being first duly paid by the said part of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey, unto the said part of the second part, all the right, title, and interest of in and to all that tract or parcel of land situate in the of (description). To have and to hold, all and singular, the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said part of the second part , and assigns, to their only proper use, benefit, and behoof forever. In witness whereof, the said party of the first part, referee as aforesaid, hath hereunto set his hand and seal, the day and year first above written. Sealed and delivered in presence of [A cknowkdgment .] 1142 Bradbury's lawyers' manual Sheriff's Deed in Mortgage Cases FORM NO. 609 Sheriff's Deed in Mortgage Cases This indenture, made this day of , in the year of our Lord, 19 , between , sheriff of the county of , of the first part, and , residing at No. , . Street, City of , party of the second part : Whereas, at a Term of the Court of held at , on the day of ,19 , it was, among other things, ordered, adjudged, and decreed by the said court, in a certain action then pending in the said court, between That all and singular the premises described in a mortgage executed by to and recorded in county clerk's office, in liber , at page , and being the same premises mentioned in the complaint in said action, and in said judgment described, or so much thereof as might be sufficient to raise the amount due to the plaintiff for principal, interest, and costs in said action, and which might be sold separately without material injury to the parties in- terested, be sold at public auction, according to the course and practice of said court, by or under the direction of the said sheriff; that the said sale be made in the county where the said mortgaged premises, or the greater part thereof, are situated; that said sheriff give public notice of the time and place of such sale, according to the course and practice of said court, and that any of the parties in said action might become a purchaser or purchasers on such sale; that the said sheriff execute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be so sold, a good and suffi- cient deed or deeds of conveyance for the same. And, whereas, the said sheriff, in pursuance of the order and judgment of the said court, did, on the day of , 19 , sell at public auction, at , the premises in the said TITLE TO REAL PROPERTY 1143 Sheriff's Deed on Sale Under an Execution order and judgment mentioned, due notice of th^ time and place of such sale being first given, agreeably to the said order; at which sale the premises hereinafter described were struck off to the said party of the second part for the sum of dollars, that being the highest sum bidden for the same : Now, this indenture witnesseth: That the said sheriff, the party of the first part to these presents, in order to carry into effect the sale so made by him, as aforesaid, in pursuance of the order and judgment of the said court, and in conformity to the statute in such case inade and provided, and also in considera- tion of the premises, and of the said sum of money so bidden as aforesaid, having been first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and con- vey unto the said party of the second part the right, title, and interest of , , , in and to all that tract or parcel of land situate in the of (description), to have and to hold, all and singular, the premises above mentioned and described, and hereby conveyed unto the said party of the second part, heirs and assigns forever. In witness whereof, the said party of the first part, sheriff as aforesaid, hath hereunto set his hand and seal, the day and year first written. Signed and sealed in presence of [Acknowledgment.] FORM NO. 610 Sheriff's Deed on Sale Under an Execution This indenture, made the 19th day of December, in the year of our Lord, 19 , between , sheriff of the city and county of Albany, of the first part, and , residing at No. ,. Street, City of party of the second part: Whereas, by virtue of a certain execution issued out of the Supreme Court, in favor of , plaintiff, against 1144 beadbury's lawyers' manual Sheriff's Deed on Sale Under an Execution , defendant, to the said sheriff directed and de- Uvered, commanding him that of the goods and chattels of the said in his county, he should cause to be made cer- tain moneys in the said execution specified, and if sufficient goods and chattels of the last-named person could not be found, that then he should cause the amount of such judgment to be made of the lands, tenements, real estate, and chattels real whereof the said last-named person was seized at a certain time, in the said execution specified, as on reference to the said execu- tion, now of record in the said Supreme Court, will more fully appear; and, whereas, because sufficient goods and chattels of the last-named said person in the said county could not be found, whereof he, the said sheriff, could cause to be made the moneys specified in the said execution, he, the said sheriff, did, in obedience to the said command, levy on, take, and seize all the estate, right, title, and interest of the said last-named per- son , of, in, and to the lands, tenements, real estate, and premises hereinafter particularly set forth and described, with the appurtenances, and did, on the day of ,19 , sell the said premises at public vendue, at , in the city of , he having first given notice of the time and place of such sale by advertising the same according to law, at which sale the said premises were struck off, and sold to for the sum of dollars, he, the said , being the highest bidder, and that being the high- est sum bidden for the same. Whereupon the said sheriff, after receiving from the said purchaser the said sum of money, so bidden as aforesaid, gave to said such certificate as is by law directed to be given, and a certificate of such sale was duly filed at the office of the clerk of the Supreme Court, in the county of ; and, whereas, the fifteen months after such sale, and the giving and filing of such certificate thereof have expired, without any redemption of the said premises having been made: Now, this indenture witnesseth: That the said party of the first part, as sheriff as aforesaid, by virtue of the said execution, and in pursuance of the statute in such case made and provided, TITLE TO REAL PROPERTY 1145 Deed by Committee of a Lunatic for and in consideration of the sum of money above mentioned, to him in hand paid as aforesaid, the receipt whereof is hereby acknowledged, hath granted and sold, and by these presents doth grant, sell, convey, and confirm unto the said party of the second part, his heirs or assigns, all the estate, right, title, and interest of the said persons against whom the said execution had been issued as aforesaid, whereof, the said , was seized or possessed on the day of , 19 (being the day mentioned in said execution), or any time after- wards, of, in, and to all {insert description). Together with all and singular the hereditaments and appur- tenances thereunto belonging, or in anywise appertaining; to have and to hold the said above-mentioned and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns forever, as fully and absolutely as the said party of the first part, sheriff as aforesaid, can, may, or ought to, by virtue of the said execution and of the statute in such case made and provided, grant, sell, and convey the same. In witness whereof, the said sheriff hath hereunto set his hand and seal, the day and year first above written. Sealed and delivered in the presence of A. B., (L. S.), [Acknowledgment.] Sheriff. FORM NO. 611 Deed by Committee of a Lunatic This indenture, made this day of , 19 , between , of the city and county of New York, coimnittee of the person and estate of , a lunatic, of the first part, and , residing at No. Street, City of , party of the same place, of the second part, witnesseth: Whereas, by an order of tho Supreme Court of the State of New York, made on the day of , 19 , reciting that it appeared to the said court, that the personal estate of the said are 1146 Bradbury's lawyers' manual Doetl by Committee of a Lunatic insufficient for the payment of his debts, and that a sale of a portion of the real estate of the said lunatic was necessary for the payment thereof, said , as such committee, was, among other things, authorized, empowered, and directed to sell at public or private sale, subject to the approbation of the court, the premises hereinafter described, for the purpose of paying and discharging the debts of the said lunatic, and to report the terms of sale or sales made by him to the court, on oath, before any contract or deed should be executed. And, whereas, the said , as such conmiittee, having, in pursuance of said order, on the day of , 19 , made his report to the court on oath, stating that he had entered into an agreement, subject to the approbation of the court, with , aforesaid, for the sale to him of the premises hereinafter described, at and for the sum of $600, to be paid on the delivery of the deed therefor. And, whereas, bj^ another order of the said court, on the day of ,19 , it was ordered that the said report and the said agreement be ratified and confirmed, and that the said committee should execute, acknowledge, and deliver to the said a good and sufficient conveyance of the tract of land so purchased by him, upon receiving the purchase money agreed to be paid therefor: Now, therefore, this indenture witnesseth: That the said party of the first part, committee as aforesaid, by virtue of the power and authority conferred upon him by the several orders above mentioned, and in pursuance of the statute in such case made and provided, and in consideratiori of the sum of $600, the said purchase money, to him in hand paid, at or before the ensealing and delivery of these presents, by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, hath granted, bargained, sold, remised, released, and conveyed, and by these presents doth grant, bargain, sell, remise, release, and convey unto the said party of the second part, his heirs and assigns forever, all the right, title, and interest of the said lunatic, of, in, and to all that certain (insert description). TITLE TO REAL PROPERTY 1147 Deed of a Watercourse To have and to hold the said premises and every part and parcel thereof, with the appurtenances, to the said , his heirs and assigns, to his and their only and proper use, bene- fit, and behoof forever. In witness whereof, etc. [Acknowledgment.] 0. A. (L. S.) FORM NO. 612 Deed of a Watercourse This indenture, made this day of 19 , between , of the town of , and , of the same place, witnesseth that: Whereas, the said and , at the time of the sealing and delivery of these presents, are respectively seized in fee of and in two contiguous tracts, pieces or parcels of land, with the appurtenances, in the township aforesaid; and, whereas, there is a dam and race, or watercourse, erected and made in and upon a certain run or stream of water, within the land of the said , for watering, overflowing, and improving meadow ground thereon; Now, this indenture witnesseth: That said for divers good causes and considerations, and in consideration of the sum of $10, to him paid by the said at or before the sealing and delivery hereof (the receipt whereof he does hereby acknowledge), has granted, bargained, sold, released, and confirmed, and by these presents does grant, bargain, sell, release, and confirm unto the said , and to his heirs and assigns, all the water of the said run or stream of water, to be led and conveyed from the said dam, along the race or watercourse aforesaid, into the said land of the said , for the space of four days in every week, to-wit, from Tuesday evening, at sunset, to Saturday evening at sunset, from the 1st day of April to the 1st day of October, yearly, and every year, for the watering, overflowing, and improving of meadow ground on the land of the said , together with free ingress, egress, and 1148 Bradbury's lawyers' manual Sheriff's Certificate of Sale regress, to and for the said , his heirs and assigns, and his and their workmen, with horses, carts, and carriages, at all convenient times and seasons, through the land of the said , his heirs and assigns, in and along the banks of the said dam and race or watercourse, for the amending, cleansing, and repairing the same, when and as often as need be or occasion require. To have and to hold all and singular the premises and privi- leges hereby granted or mentioned, or intended so to be, with the appurtenances, unto the said , to the only proper use and behoof of the said , his heirs and assigns forever, he or they paying one moiety or half part of the ex- penses which from time to time may accrue, in supporting, cleansing, and repairing the dam and watercourse aforesaid. In witness whereof, the said parties have hereto interchange- ably set their hands and seals the day and year first above written. A. B. (L. S.) [Acknowledgment.] C. D. (L. S.) FORM NO. 613 Sheriff's Certificate of Sale I, , sheriff of the county of Monroe, do hereby certify that, by virtue of an execution issued out of the Su- preme Court of the State of New York, tested on the day of , 19 , I was commanded to make of the personal and real property of , the sum of 1400, which said sum of $400, had lately recovered against the said for his damages and costs in an action in which the said was plaintiff and was defendant, which said judgment was entered and docketed in said county on the day of , and for want of sufficient personal property of the said to make the damages aforesaid, that then I should cause the same to be made of the real property whereof the said was TITLE TO REAL PROPERTY 1149 Release of Dower seized on the day of , 19 . And for want of sufficient personal property, whereof to make the damages aforesaid, I did seize and take the lands hereinafter described, to-wit: {insert description), and having advertised the same according to law, did expose the same at public sale on the day of , 19 , and the same was struck off to , he being the highest bidder therefor, and that being the highest sum bid for the same. And I, the said , sheriff as aforesaid, do hereby certify that the said , residing at No. , Street, City of , will be entitled to a deed of said land from me, as sheriff aforesaid, at the expiration of fifteen months from the date hereof, unless the same shall be before that time redeemed agreeably to the provisions of the statute in such case made and provided. Given under my hand, this day of , 19 . Sheriff of the County of Monroe. FORM NO. 614 Assignment of Sheriff's Certificate of Sale Indorsed on the Certificate I, , of the city of Albany, in consideration of $500, to me in hand paid, by , residing at No. , Street, City of , do hereby sell, assign, transfer, and set over to the said the within certifi- cate, with all the right, title, and interest which I have, or can have therein, or to the land therein described by virtue thereof. [Acknowledgment.] FORM NO. 615 Release of Dower To all to whom these presents shall come, relict of , late of, etc., send greeting: Know ye, that the said , for and in consideration of $50, to her in hand 1150 Bradbury's lawyers' manual Release of Dower by Indorsement on a Deed paid, at or before the ensealing and delivery of these presents, by her son , hath granted, remised, released, and forever quitclaimed, and by these presents doth grant, remise, release, and forever quitclaim unto the said , his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property, claim, and demand whatsoever, in law and equity, of her, the said , of, in, and to (a certain parcel of land, etc., or if the release is intended to be a general one, say) all and every the messuages, lands, tenements, and real estate whereof the said died seized or possessed, or whereof he was seized or possessed at the time of his intermarriage with the said , or at any time since, wheresoever the same may lie and be situate, so that she, the said , her heirs, executors, administrators, or assigns, nor any other person or persons for her, them, or any of them, have, claim, challenge, or demand, or pretend to have, claim, challenge,- or demand, any dower or thirds or any other right, title, claim, or demand of, in, or to the same, or any part or parcel thereof, in whosesoever hands, seisin, or possession the same may or can be, but thereof and therefrom shall be utterly barred and ex- cluded forever, by these presents. In witness whereof, the said has hereunto set her hand and seal, this day of , 19 . [Acknowledgment.] FORM NO. 616 Release of Dower by Indorsement on a Deed Know all men by these presents. That , the widow of the within-named , lately deceased, in considera- tion of the sum of $10, to her in hand paid by the within-named , at or before the execution of these presents, and for divers other good causes and considerations, her thereunto moving, hath remised, released, and forever quitclaimed, and by these presents doth, for herself, her heirs, executors, and TITLE TO REAL PROPERTY 1151 Release of Part of Mortgaged Premises administrators, remise, release, and forever quitclaim, unto the said , his heirs and assigns, all the dower, and right, and title of dower, and all other the estate right, title, interest, claim, and demand whatsoever, both at law and in equity of her, the said , which she now hath, or which she, her heirs, executors, or administrators, can, or may at any time hereafter, have, claim, or demand of, in, to, or out of all and singular, the said land and premises, by the within indenture conveyed, or mentioned, or intended so to be, or their appur- tenances, or any part thereof, so that she, the said , her heirs, executors, and administrators, or any of them, shall not, nor will, at any time hereafter, have, claim, or pretend to any such dower or right, or title of dower, or other estate, right, title, interest, pretense, claim, or demand,. as aforesaid, of, in, to, or out of the said premises, or any part thereof, with their appurtenances, but of, and from the same, and every part thereof, shall and will be from henceforth utterly debarred and excluded -forever, by these presents. In witness whereof, the said has hereunto set her hand and seal, this day of , 19 . [Acknowledgment.] FORM NO. 617 Release of Part of Mortgaged Premises This indenture, made this day of , 19 , between , of the second part, witnesseth: That whereas, , by an indenture of mortgage, bearing date the day of , 19 , for the consideration therein mentioned, and to secure the payment of the money therein specified, did convey certain lands and tene- ments, of which the lands hereinafter described are part, unto , which mortgage was recorded in the clerk's office of the county of , in liber , page And, whereas, the said part of the first part, at the re- quest of the said part of the second part, ha agreed 1152 Bradbury's lawyers' manual Release of Part of Mortgaged Premises to give up and surrender the lands hereinafter described, unto the said part of the second part, heirs and assigns, and to hold and retain the residue of said mortgaged lands, as security for the money remaining unpaid on the said mortgage. Now, this indenture witnesseth: That the said part of the first part, in pursuance of the said agreement, and in con- sideration of , duly paid at the time of the enseal- ing and delivery of these presents, being a part of the money secured to be paid by the said mortgage, the receipt whereof is hereby acknowledged, ha granted, released, quitclaimed, and set over, and by these presents do grant, release, quit- claim, and set over, unto the said part of the second part, and to heirs and assigns, all that part of the said mort- gaged lands described as follows: to- gether with the hereditaments and appurtenances thereto belonging; and all the rights, title, and interest of the said part of the first part, of, in, or to the same, to the intent that the lands hereby conveyed may be discharged from the said mortgage, and that the residue of the lands in the said mortgage specified may remain to the said part of the first part, as heretofore : To have and to hold, the lands and premises hereby released and conveyed, to the said part of the second part, heirs and assigns, to only proper use, benefit, and behoof forever, free, clear, and discharged of and from all lien and claim, imder or by virtue of the indenture of mortgage aforesaid. In witness whereof, the said part of the first part ha hereunto set hand and seal , the day and year first above written. [Acknowledgment.] TITLE TO REAL PROPERTY 1153 Affidavit of Title FORM NO. 618 Affidavit of Title State of New York ; go • County of New York A. B., being duly sworn, says that he resides at No. , Street, in the Borough of Manhattan, City and State of New York; that he is a citizen of the United States and is upwards of the age of twenty-one years; that he is now in possession and the owner in fee simple of the premises known as No. , Street, Borough of Manhattan, City and State of New York, this day to be conveyed to C. D. Deponent further says that the said premises have been held by him for upwards of years last past, and that his possession thereof has been peaceable and undisturbed and that the title thereto has never been disputed or questioned, to his knowledge, nor does deponent know of any facts by reason of which said possession might be disturbed or questioned, or by reason of which any claim to said premises or any part thereof might arise or be adverse to said deponent, and deponent is informed and verily beheves that his grantors hold the said premises for more than twenty years prior to the transfer to him and that no person has any contract for the purchase of or claim to or against said premises except as hereinafter stated; that the same are free and clear of all taxes, incumbrances or liens by mortgage, decree, judgment, or by statute, or by vir- tue of any proceeding in any court or file in the office of the clerk of any county or court in this State and of all other hens of any nature and description save and except {state any mort- gages or other liens which are on the property). Deponent further says that he is married to who is over the age of twenty-one years and who is the same person who executes, with deponent, the deed to said premises. Deponent further says that the premises are now occupied by as tenant of deponent. 1154 BRADBURY'S LAWYERS* MANUAL Affidavit of Title Deponent further says that any judgment found of record of any person under the name of A. B. are not against deponent and that no proceedings in bankruptcy have ever been instituted by or against deponent. Deponent makes this affidavit to induce CD. above named to accept a deed (mortgage) to said premises and pay the con- sideration therefor, knowing that the said CD. reUes upon the truth of the statement herein contained. Sworn to before me, this ] A. B. day of , 19 {Signature and title of officer.) CHAPTER LII PARTY WALL AGREEMENT FORMS NO. PAGE 619. Party wall agreement 1155 FORM NO. 619 Party Wall Agreement Agreement, made this day of , 19 , between A. B., who resides at No. , Street, in the Borough of Manhattan, City and State of New York, party of the first part, and C. D., who resides at No. , Street, Borough of Manhattan, City and State of New York, party of the second part; WITNESSETH That WHEREAS, the said A. B. is the owner of the following described property (describe the property as in a deed); and Whereas, the said C. D. is the owner of the property ad- joining the above-described premises on the (northerly) side thereof and is described as follows: (describe property cis in deed); and Whereas the said parties are desirous of providing for the erection of a party wall on the said line between the two above described pieces of property; Now, therefore, the parties hereto do hereby agree as follows: Which ever of the parties hereto shall first erect a building adjoining said line, shall erect a wall thereon of such length as such party shall see fit, which wall shall be constructed of good materials and workmanship and shall conform to the re- quirements of all building laws and regulations, but which shall 1155 1156 BRADBURY'S LAKJERS' MANUAL Party Wall Agreement not be more than inches in thickness, which said wall, with its necessary foundation shall be placed so that half of said wall shall be on the property of each of the parties to this agree- ment. The expenses of building said party wall shall be, in the first instance, borne by the party who builds the same, and one- half thereof shall be paid to the other party whenever such other party shall use such wall. And the parties hereto do mutually agree that if it shall be- come necessary to repair or rebuild the whole or any portion of said party wall the expenses of such repair or rebuilding shall be borne equally by the parties hereto, their respective heirs and assigns. It is ruRTHER AGREED that whenever the said party wall or any portion thereof shall be rebuilt it shall be erected on the same spot where it was first built and of the same size and of the same or similar materials. It is further mutually understood and agreed,, that this agreement shall be at all times considered as a covenant running with the land and that no part of the fee of the prem- ises herein described and upon which said party wall is enclosed shall be transferred or conveyed in or by these presents. In witness whereof, the parties hereto have hereunto set their hands on the date in this instrument first above written. A. B., [seal]. C. D., [seal]. State of New York County of New York ' On this day of , 19 , before me personally came A. B. and C. D., to me known and known to me to be the individuals described in and who executed the foregoing instrument and they severally acknowledged to me that they executed the same. {Signature and title of officer.) CHAPTER LIII LANDLORD AND TENANT FORMS NO. PAGE NO. PAGE 020. Lease — short form 1157 years, with covenants to 621. Landlord's agreenrient 1159 build, and for renewals. . . .1172 622. Tenant's agreement 1159 629. The same — renewal lease. . .1178 623. Lease of a house 1160 630. Surety .1179 624. Lease of furnished house or 631. Surrender of Lease 1179 apartment 1163 632. Notice to tenant 1180 625. Lease of flat 1166 633. Petition for summary pro- 626. Farm lease 1169 ceedings, nonpayment of 627. Under lease 1171 rent 1181 628. Ground lease, twenty-one FORM NO. 620 Lease — Short Form This agreement,, made the day of , in the year 19 , between , of the first part, and , of the second part, witnesseth: That the said part of the first part ha agreed to let, and hereby do let to the said part of the second part, and the said part of the second part ha agreed to take, and hereby do take from the said part of the first part, , for the term of to commence on the day of , 19 , and to end on the day of ,19 . And the said part of the second part hereby covenant and agree to pay unto the said part of the first part, the rent, or sum of , payable . And to quit and surrender the premises, at the expira- tion of the said term, in as good state and condition as they were in at the commencement of the term, reasonable use and wear thereof, and damages by the elements excepted. 1157 1158 BRADBURY'S LAWYERS' MANUAL Lease — -Short Form And the said part of the second "part further covenant that will not assign this lease, nor let or underlet the whole or any part of the said premises, nor make any altera- tion therein without the written consent of the said part of the first part, under the penalty of forfeiture and damages; and that will not occupy or use the said premises, nor permit the same to be occupied or used for any business deemed extra-hazardous on account of fire or otherwise, with- out the like consent under the like penalty. And the said part of the second part further covenant that will permit the said part of the first part, or agent, to show the premises to persons wishing to hire or purchase, and on and after the first day of February, next preceding the expiration of the term, will permit the usual notice of "to let," or "for sale," to be placed upon the walls or doors of said premises, and remain thereon without hindrance or molesta- tion. And also, that if the said premises, or any part thereof, shall become vacant during the said term, the said part of the first part, or representative, may re-enter the same, either by force or otherwise, without being Hable to any prosecution therefor; and relet the said premises as the agent of the said part of the second part, and receive the rent thereof, applying the same first to the payment of such ex- penses as may be put to in re-entering, and then to the payment of the rent due by these presents; and the balance (if any) to be paid over to the said part of the second part, who shall remain liable for any deficiency And the said part of the second part hereby further cove- nant that if any default be made in the payment of the said rent, or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the relation of landlord and tenant, at the option of the said part of the first part, shall wholly cease and determine; and the said part of the first part shall and may re-enter the said premises and remove all persons therefrom ; and the said part of the second part hereby expressly waive the service of any notice in LANDLORD AND TENANT 1159 Tenant's Agreement writing of intention to re-enter, as provided for by any law or statute. In witness whereof, the parties to these presents have here- unto set their hands and seals, the day and year first above written . Sealed and delivered in the presence of FORM NO. 621 Landlord's Agreement This is to certify, that have, this day of ,19 , let and rented unto , with the appurtenances, and the sole and uninterrupted use and occupa- tion thereof, for the term of , to commence the day of , at the rent of dollars, payable FORM NO. 622 Tenant's Agreement This is to certify, that have hired and taken from , for the term of , to commence the day of , at the rent of dollars, payable . And do hereby promise to make punctual payment of the rent, in the manner aforesaid. Part of the second part will not use or occupy said premises for any business or purpose deemed extra- hazardous on account of fire. And further covenant that he , the part of the second part, will not assign this lease or underlet the said premises, or any part thereof, to any person or persons whomsoever, with- out first obtaining the written consent of said part of the first part, and in case of not complying with this covenant, the part of the second part agree to forfeit and pay to the part of the first part the simi of dollars, as and 1160 Bradbury's lawyers' manual Lease of a House for liquidated damages which are hereby liquidated and fixed as damages and not as a penalty. This lease is made and accepted on this express condition, that in case the part of the second part should assign this lease or underlet the said premises, or any part thereof, without the written consent of the part of the first part, that then the part of the first part, his heirs or assigns, in his option, shall have the power and the right of terminating and ending this lease immediately, and be entitled to the immediate pos- session of said premises, and to take sxmimary proceedings against the part of the second part, or any person or persons in possession as tenant, having had due and legal notice to quit and siu-render the premises, holding over their term. It is further agreed between the parties, that in case said premises should be destroyed by fire before or during said term, that then this lease is to cease and determine; the rent to be paid up to that time. In witness whereof, the parties have hereunto set their hands and seals the day and year first above written. In presence of FORM NO. 623 Lease of a House This indenture, made this day of , 19 , between A. B., of the one part, and C. D., of the other part, witnesseth: That the said A. B., for and in consideration of the rent, covenants, and agreements hereafter in and by these presents mentioned, reserved, and contained on the part and behalf of the said C. D., his executors, administrators, and assigns, to be paid, observed, done, and performed, hath granted, de- mised, leased, and to farm let, and by these presents doth grant, lease, and to farm let unto the said C. D., his executors, administrators, and assigns, all that brick house, messuage, or tenement, with all and singular its appurtenances, situate, standing, and being in a certain street or place, called, etc., LANDLORD AND TENANT 1161 Lease of a House together with all and singular its appurtenances whatsoever, to the said brick house, messuage, or tenement, and premises belonging, or in any wise appertaining, and therewith hereto- fore held, used, occupied, and enjoyed by F. G., late, occupier thereof. To have and to hold the said brick house, messuage, or tenement, and all and singular other the premises thereinbefore granted and demised, or mentioned, or intended to be, with the appurtenances, unto the said C. D., his executors, ad- ministrators, and assigns, from the first day of August next ensuing, the day of the date of these presents, for and during, and until the full end and term of five years from thence next ensuing, and fully to be complete and ended; yielding and paying therefor yearly, and every year, during the said term, unto the said A. B., his heirs or assigns, the yearly rent of $400 on the day of , 19 , in every year; the first payment thereof to begin, and to be made, etc., next ensuing the date of these presents. Provided, always, nevertheless, and it is the true intent and meaning of these presents, and of the said parties hereunto, that if it shall happen that the said yearly rent of hereby reserved, or any part thereof, be behind and unpaid by the space of next over or after any of the said days, whereon the same ought to be paid as aforesaid, that then, and from thenceforth, it shall, and may be lawful to and for the said A. B., his, etc., into and upon the said demised premises, and every, or any part or parcel thereof, with their appurte- nances, in the name of the whole to re-enter, and the same to have again, repossess, and enjoy, as in his or their first or former estate or estates; and him, the said C. D., his executors, ad- ministrators, and assigns, and all and every other, the occupier or occupiers of the said demised premises, from thence utterly to expel, remove, and put out; anything in these presents con- tained to the contrary thereof, in any wise notwithstanding. And the said C. D., for himself, his executors, administra- tors, and assigns, doth covenant and grant to and with the said A. B., his heirs and assigns, by these presents, in manner 1162 BRADBURY S LAWYERS' MANUAL Lease of a House following, that is to say; that he, the said CD., his executors, administrators, and assigns, shall and will well and truly pay or cause to be paid unto the said A. B., his heirs or assigns, the said yearly rent above reserved, according to the true intent and meaning of these presents, clear of, and over and above all taxes and reprises whatsoever. And that the said C. D., his executors, administrators and assigns, shall, and will from time to time, and at all times hereafter, during the said term hereinbefore granted, at his and their own proper costs and charges, well and sufficiently keep in repair the said demised premises, with their, and every of their appurtenances, and also the glass, windows, pavements, privies, sinks, and gutters belonging to the same, in, by, and with all manner of needful and necessary reparations and amendments whatsoever, when, and as often as the same shall require (damages by fire only excepted), and the same premises with all and singular their appurtenances, being in and by all things so well and sufficiently repaired and kept (except as before excepted), at the end, expiration, or other sooner deter- mination of the said term hereby granted, shall, and will quietly and peaceably leave and surrender, aind yield up unto the said A. B., his, etc., in good and sufficient repair and con- dition (reasonable use and wearing thereof, and damage by fire as aforesaid, only excepted); that he, the said C. D., his executors, administrators, and assigns, shall, and will from time to time and at all times hereafter, during the said term hereby granted, pay and discharge all taxes, charges, and impositions which shall be taxed, charged, imposed, or assessed upon the said messuage, or tenement, or premises, or any part thereof. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written. A. B. (L. S.) C. D. (L. S.) LANDLORD AND TENANT 1163 Lease of Furnished House or Apartment FORM NO. 624 Lease of Furnished House or Apartment This indenture, made the day of , 19 , between A. B., of , party of the first part, and C. D., of , party of the second part, witnesseth: That the said part of the first part ha letten, and by these presents do grant, demise, and to farm let, unto the said part of the second part (describe premises), with the appur- tenances, together with the furniture in the said , a hst, or schedule, or inventory of which is in possession of each party, and to which reference is hereby made, the said schedule, or inventory, having been examined by said parties, approved and signed by them, for the term of , from the day of , 19 , at the rent, or sum of , to be paid in equal monthly (quarterly) pajrments, in advance. And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said part of the first part to re-enter the said premises, and to remove all persons therefrom. And the said part of the sec- ond part hereby covenant to pay to the said part of the first part, the said yearly rent, as herein specified. And, also, to pay the regular annual rent or charge, which is or may be assessed or imposed according to law, upon the said premises, for the Croton water, on or before the first day of August in each year during the term; and if not so paid, the same shall be added to the rent then due. And the said part of the second part further covenant that - will not assign this lease, nor let or underlet the whole or any part of the said premises, nor make any alteration therein, without the written consent of the said part of the first part, under the penalty of forfeiture and damages, and that will not occupy or use the said premises, nor permit the same to be occupied or used for any business deemed extra-hazardous on 1164 Bradbury's lawyers' manual Lease of Furnished House or Apartment account of fire or otherwise, without the like consent under the like penalty. And the said part of the second part further covenant that wUl permit the said part of the first part, or agent, to show the premises to persons wishing to hire or purchase, and on and after the first day of February next preceding the expiration of the term, will per- mit the usual notice of "to let," or "for sale" to be placed upon the walls or doors of said premises, and remain thereon without hindrance or molestation. And it is further agreed between the parties to these presents, that in case the building or buildings erected on the premises hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible, at the expense of the said part of the first part; that in case the damage shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair; but in case of the total destruction of the premises, by fire, or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end; provided, however, that such damage or destruction be not caused by the carelessness, negligence, or improper conduct of the part of the second part, agents or servants. And at the expiration of the said term, the said part of the second part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. And the part of the second part further expressly covenant and agree to keep the said furniture enumerated in said schedule or inventory, and which is con- tained in the said in good order, and repair at own proper cost and expense, and also to pay for, re- place, or make good any and all damages, breakage, or loss to said furniture (excepting loss or damage by fire to said furni- ture), and to surrender and deliver up said furniture at the expiration of said term, the ordinary reasonable use and wear of such furniture excepted. And the said part of the first part do covenant that the LANDLORD AND TENANT 1165 Lease of Furnished House or Apartment said part of the second part, on paying the said yearly rent, and performing the covenants aforesaid, shall and may peace- ably and quietly have, hold, and enjoy the said demised prem- ises for the term aforesaid. And it is further understood and agreed, that the covenants and agreements, contained in the within lease, are binding on the parties hereto and their legal representatives. In witness whereof, the parties to these presents have here- unto set their hands and seals, the day and year first above written. Sealed and delivered in the presence of [A cknowledgment.] GUARANTEE INDORSED ON LEASE In consideration of the lettiug of the premises within men- tioned to the within-named , and the sum of $1 to me paid by the said part of the second part, do hereby covenant and agree, to and with the part of the first part above named, and , legal representa- tives, that if default shall at any time be made by the said , in the payment of the rent and performance of the covenants contained in the within lease on part to be paid and performed, that will well and truly pay the said rent, or any arrears thereof, that may remain due unto the said part of the first part, and also all dam- ages that may arise in consequence of the nonperformance of said covenants, or either of them, without requiring notice of any such default from the said part of the first part. Witness, hand and seal , this day of , in the year 19 . [Witness.] [Acknowledgment.] 116(3 Bradbury's lawyers' manual Lease of Flat FORM NO. 625 Lease of Flat This agreement, made the day of , 19 , between , part of the first part, as landlord, and , part of the second part, as tenant , witnesseth: That the said part of the first part ha agreed to let, and hereby do let, to the said part of the second part, as tenant , and the said part of the second part, as tenant , ha agreed to take, and hereby do take from the said part of the first part, the flat, or floor, on the of the house known and desig- nated as , in the city of New York, for the term of , to commence ,19 , and to end ,19 , to be occupied as a strictly private dwell- ing apartment by family, consisting of , and not otherwise. And the said part of the second part hereby covenants and agrees to pay unto the said part of the first part, the rent or sum of dollars, payable in equal payments of dollars each , on the day of This lease is granted upon the express condition, however, that in case said landlord, agents or assigns, deems objectionable or improper conduct on the part of the said tenant or occupants, said landlord, agents or assigns, shall have full license and authoritj' to re-enter and have full possession of said premises, either with or without legal process, on giving five days' previous notice of intention so to do, and tendering repayment of the rent paid on account of the unexpired term demised, and upon the expiration of said notice and tender of payment made as aforesaid, said landlord, agents or assigns, shall be entitled to the immediate possession thereof; and in consideration of the above letting , the part of the second part con- sents that the said landlord, agents or assigns. LANDLORD AND TENANT 1167 Lease of Flat shall not be liable to prosecution or damages for so resuming possession of said premises. The said premises are also leased upon the further covenants and conditions: 1 . That the tenant shall take good care of the apartment and its fixtures, and suffer no waste or injury; shall not drive picture or other nails into the walls or woodwork of said prem- ises, nor allow the same to be done; and shall at own cost and expense make and do all repairs required to walls, ceilings, paper, plumbing works, ranges, pipes, and fix- tures belonging thereto, whenever damage or injury to the same shall have resulted from misuse or neglect; and shall repair and make good any damage occurring to the building or any tenant thereof, by reason of any neglect, carelessness, or injury to the dumb-waiters, gas, or Croton water pipes, meters, or faucets, and connections by the tenant , self, or any of family or household, or upon the premises leased to said tenant , and not call on the part of the first part for any disbursement whatsoever; and at the end or other expiration of the term, shall deliver up the de- mised premises in good 'order and condition, damage by the elements excepted; and the said part of the first part shall not be liable for any damage by leakage of Croton water, or for any cause in any event. 2. That the tenant shall not expose any sign, advertise- ment, illumination, or projection out of the windows or ex- terior, or from the said building, or upon it in any place, except such as shall be approved and permitted in writing by the owner or authorized agent , and the said ten- ant shall use only such shades in the front windows of said apartment as are put up or approved by owner. 3. That the tenant shall not assign this agreement or underlet the premises, or any part thereof, or make any altera- tions in the apartments or premises, without the landlord's or agent's consent in writing; or permit or suffer upon the same, any act or thing deemed extra-hazardous on account of fire; and shall comply with all the rules and regulations of the board 1168 Bradbury's lawyers' manual Lease of Flat of health and city ordinances applicable to said premises; and that will not use nor permit to be used the said premises nor any part thereof for any purpose other than that of a private dwelling apartment for and family only. 4. That the tenant shall, in case of fire, give immediate notice thereof to the landlord, who shall thereupon cause the damage to be repaired as soon as reasonably and conveniently may be, but if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease, and the accrued rent be paid up to the time of the fire. 5. That the tenant shall consult and conform to the regulations governing said house, and to any reasonable altera- tion or regulation that may be deemed necessary for the pro- tection of the building, and the general comfort and welfare of the occupants of the same. 6. That in case of default in any of the covenants, the land- lord may resume possession of the premises, and relet the same for the remainder of the term, at the best rent that can obtain for account of the tenant , who shall make good any deficiency, and any notice in writing, of inten- tion to re-enter, as provided for in the third section of an act entitled "An Act to abolish distress for rent, and for other purposes," passed May 13, 1846, is expressly waived; and it is further expressly agreed, that should the landlord institute dispossess proceedings against the tenant for the nonpayment of rent, or for any other reason, such proceedings shall not prejudice the right of the landlord to hold the tenant liable for the rent reserved herein for the full term of this lease, nor the right of the landlord to rent the premises as the agent of the tenant for any unexpired term, after the premises become vacant, from any cause whatsoever, including possession taken by the landlord under a warrant in dispossess proceedings. 7. That three months prior to the expiration of the term hereby granted, applicants shall be admitted at reasonable hours of the day to view the premises until rented; and the landlord or agents, shall also be permitted at any time during the term,- to visit and examine them at any reason- LANDLORD AND TENANT 1169 Farm Lease able hour of the day, and whenever necessary for any. repairs to same or any part of the building. It is hereby expressly understood and agreed, that the character of the occupancy of said demised premises, as above expressed, is an especial consideration and inducement for the granting of this lease by said landlord to said tenant , and in the event of a violation by said tenant of the restriction against subletting the premises, or permitting same to be occupied by parties other than as aforesaid, or of a violation of any other restriction, or condition therein imposed, said lease and agreement shall, at the option of said landlord, agents or assigns, cease and determine and be at an end, anything hereinbefore contained to the contrary hereof in anywise notwithstanding. In witness whereof, have hereunto set hand and seal , this day of , 19 . In presence of FORM NO. 626 Farm Lease This indenture, made the day of ,,in the year of our Lord, 19 , between A. B., of the city of Albany, party of the first part, and C. T>., of the same place, party of the second part, witnesseth: That the said party of the first part, in consideration of the rents, covenants, and agreements hereinafter mentioned, re- served, and contained on the part of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, has demised and to farm let, unto the said party of the second part, his executors, administrators, and assigns, all {insert description), with the appurtenances, imto the said party of the second part, his executors, administrators, and assigns, from the day of , 19 , for the term of years then next ensuing, yielding and paying there- for, unto the said party of the first part, his heirs or assigns, 1170 Bradbury's lawyers' manual Farm Lease yearly and every year during the said term hereby granted, the yearly rent or sum of $800, in equal half-yearly payments, to- wit: on the 1st days of October and April in each and every year: provided, that if the yearly rent above reserved, or any part thereof, shall be unpaid on any day of payment whereon the same ought to be paid as aforesaid; or if default shall be made in any of the covenants or agreements herein contained, on the part of the said party of the second part, then and from thenceforth it shall be lawful for the said party of the first part, his heirs or assigns, to re-enter upon said demised prem- ises, and the same to have again, as in their first and former estate. And the said party of the second part does covenant and agree, with the said party of the first part, his heirs and assigns, that he, the said party of the second part, his executors, ad- ministrators, or assigns, will yearly and every year during the said term, unto the said party of the first part, his heirs or assigns, the yearly rent above reserved, on the days and in manner limited and prescribed as aforesaid, for the payment thereof, without any deduction or delay. And that the said party of the second part, his executors, administrators, or as- signs, will, at his own proper costs and charges, bear, pay, and discharge all taxes, duties, and assessments, as may, during the said term hereby granted, be charged, assessed, or imposed upon the said demised premises. And that on the determina- tion of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will leave and surrender unto the said party of the first part, his heirs or assigns, the said demised premises in as good state and condition as they are now in, ordinary wear and damages by the elements excepted. And the said party of the first part does covenant and agree, with the said party of the second part, his executors, adminis- trators, and assigns, that the said party of the second part, his executors, administrators, and assigns, pa5dng the said yearly rent above reserved, and performing the covenants and agreements aforesaid on his part, the said party of the second LANDLORD AND TENANT 1171 Under Lease part, his executors, administrators, and assigns, shall and may at all times dm-ing the said term hereby granted, peaceably have, hold, and enjoy the said demised premises, without any manner of trouble or hindrance of or from the said party of the first part, his heirs or assigns, or any other person or persons whom- soever. In witness whereof, the parties to these presents have here- unto set their hands and seals. A. B. (L. S.) Sealed and delivered in the presence of C. D. (L. S.) FORM NO. 627 Under Lease (Follow other forms, except that after describing the premises, say:) being the same premises demised by M. N. to the party of the first part, by a lease bearing date the day of , 19 , (and among the covenants, add): And the said {naming lessee:), for himself, his heirs, executors, and administrators, hereby covenants with the said (lessor), his executors, administrators, and assigns, that he and they will truly pay, or cause to be paid, the yearly rent, reserved by the said lease so granted by the said M. N., as aforesaid, and observe and perform the covenants, conditions, and agreements therein contained, and will keep the said (lessor), his executors, administrators, and assigns, indemnified against the payment of the said rent, and the performance of the same covenants, conditions, and agreements, except so far as such covenants, conditions, and agreements are conformable to the covenants, conditions, and agreements hereinbefore contained on the pact of, and which ought to be observed and performed by the said lessor, his executors, administrators, and assigns. 1172 Bradbury's lawyers' manual Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals FOUM NO. 628 Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals This indenture, made this day of , 19 , between A. B., of the city of , of the first part, and Y. Z., of the city of , of the second part,* witnesseth: That the said party of the first part, in considera- tion of the rents and covenants hereinafter reserved and con- tained, have granted, demised, and to farm let, and by these presents do grant, demise, and to farm let, unto the said party of the second part, aU that certain lot of land, situate, lying, and being in the ward of the city of New York, being part of the lands of the said party of the first part, and distinguished {here insert description of the premises) : To have and to hold the said lot of land, unto the said party of the second part, his executors, administrators, and assigns, from the day of , 19 , for and during, and until the full end and term of years thence next ensuing, and fully to be complete and ended ; yielding and paying for the same, yearly and every year during the said term, unto the said party of the first part, his successors or assigns (or, his, or their, executors, administrators, or assigns), the sum of dollars, lawful money of the United States, in two equal half-yearly payments; that is to say, on the first day of May, and on the first day of November, in each and every year during the term hereby granted; the first pay- ment to be made on the first day of now next ensuing; Provided, always, that if it shall happen that the said yearly rent, or any part thereof, shall not be paid on any day on which the same ought to be paid as aforesaid, then and at all times thereafter, it shall and may be lawful to and for the said party of the first part, his successors or assigns, into the said demised premises, or any part thereof, in the name of the whole, to re-enter, and to repossess, have, and enjoy the same LANDLORD AND TENANT 1173 Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals again as of his former estate and interest therein, anything herein contained to the contrary in anywise notwithstanding. And the said party of the second part, for himself, his executors, administrators, and assigns, does hereby covenant and agree, to and with the said party of the first part, his successors and assigns, that the said party of the second part, his executors, administrators, and assigns, shall and will, half-yearly, and every year during the term hereby granted, well and truly pay unto the said party of the first part, his successors or as- signs, the said rent hereby reserved, at the days and times hereinbefore limited for the payment thereof, without fraud or delay: And, also, that the said party of the second part, his executors, administrators, or assigns, shall and will, at his and their own proper cost and charges, bear, pay, and discharge all such duties, taxes, assessments, and payments, extraordi- nary, as well as ordinary, as shall, during the term hereby granted, be imposed or grow due and payable out of or for the said demised premises, or any part thereof, by virtue of any present or future law of the United States of America, or of the State of , or of the corporation of the city of , or otherwise. And also, that the s,aid party of the second part, his executors, administrators, or assigns, or any of them, shall not, nor will, at any time or times hereafter dur- ing the term hereby granted, lease, let, or demise, all or any part of the said premises, nor assign, transfer, or make over the same, or this present lease, or any of his or their term or time therein, to any person or persons whomsoever, without the consent of the said party of the first part, his successors or assigns, in writing, under his seal, for that purpose first had and obtained, anything hereinbefore contained to the contrary thereof, in anywise notwithstanding; and also, that the said party of the second part, his executors, administrators, or assigns, or any of them, shall not, nor will, at any time here- after during the term hereby granted, erect, make, establish, or carry on, nor cause or suffer to be erected, made, established, or carried on, in any manner, on any part of the above-described and hereby demised premises, any stable, slaughter-house, 1174 Bradbury's lawyers' manual Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals tallow chandlery, smith-shop, forge, furnace, or brass foundry, nail, or other iron factory, or any manufactory for the making of glass, starch, glue, varnish, vitriol, turpentine, or ink; or for tanning, dressing, preparing, or keeping skins, hides, or leather; or any distillery, brewery, sugar bakery, or any other manufactory, trade, business, or calling whatsoever, which may be in anywise noxious or offensive to the neighboring inhabitants; and lastly, that the said party of the second part, his executors, administrators, or assigns, shall and will, on the last day of the term hereby granted, or other sooner determina- tion thereof, well and truly surrender and deUver up the said hereby demised premises into the possession of the said parties of the first part, their successors or assigns, without fraud or delay. Provided, always, that it shall be lawful for the said party of the first part, his successors and assigns, when and as often as default shall be made in the payment of the said rent, or any part thereof, to distrain for the same, anything herein contained to the contrary notwithstanding. And, provided, further, and this present lease is upon this express condition, that if the said party of the second part, his succes- sors or assigns, shall, at any time during the term hereby granted, erect, make, establish, or carry on, or cause or suffer to be erected, made, established, or carried on, in any maimer, on any part of the above-described and hereby demised prem- ises, any stable, slaughter-house, tallow chandlery, smith-shop, forge, furnace, or brass foundry, nail, or other iron factory, or any manufactory for the making of glass, starch, glue, varnish, vitriol, turpentine, or ink; or for tanning, dressing, preparing, or keeping skins, hides, or leather; or any distillery, brewery, sugar bakery, or any other manufactory, trade, business, or calling whatsoever, which may be in anjTvise noxious or offen- sive to the neighboring inhabitants ; or shall fail in the perform- ance of any or either of the covenants, conditions, or provisions in these presents contained which, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, are, or ought to be observed, performed, fulfilled, and kept, then and from thenceforth, this present indenture, LANDLORD AND TENANT 1175 Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewab and the estate hereby granted, and every clause, article, and thhig herein contained, on the part and behalf of the said party of the first part, to be performed, fulfilled, and kept, shalt cease, determine, and be utterly void to all intents and purposes whatsoever, anything herein contained to the contrary thereof in anywise notwithstanding. And the said party of the second part, for himself, his executors, administrators, and assigns, hereby further covenants and agrees, to and with the said party of the first part, his successors and assigns, that he, the said party of the second part, his executors, administrators, or assigns, shall and will, within years from the com- mencement of the term hereby granted, erect and build, or cause to be erected and built, on the premises hereby demised, so as to cover the whole front thereof a good and substantial dwelling-house, stories high, to be covered with slate or metal, and the front thereof to be furnished in such style as may be approved of by the said party of the first part, his successors or assigns. And it is hereby mutually covenanted and agr^d, by and between the parties to these presents, that if the said party of the second part, his executors, administra- tors, or assigns, shall and do, within years from the commencement of the term hereby granted, erect and build, or cause to be erected and built, on the premises hereby de- mised, such dwelling-house as is above described, then the said parties of the first part, their successors or assigns, shall and will, at the end and expiration of the term hereby demised, grant, and execute unto the said party of the second part, his executors, administrators, or assigns, at his or their expense, a renewal • of this lease, for the further term of twenty-one years thence ensuing, at such annual rent as shall be agreed upon by the said parties, their executors, administrators, suc- cessors, or assigns, respectively, in half-yearly payments (but not less than the rent above reserved) ; and in the event of their not agreeing upon such rent, each party shall choose a disin- terested person to ascertain the same, which persons so chosen shall themselves respectively be owners, in fee-simple, of one or more lots of land in the neighborhood of the one hereby de- 1176 BRADBURY S LAWYERS MANUAL Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals mised, and shall, in making their award or determination in the said premises, under oath, appraise and value the said. lot of land hereby demised, at its full and fair worth or price at pri- vate sale, considering the same as an incumbered vacant lot, and per cent, on the amount of their said appraise- ment or valuation shall be the annual rent of the said lot of land for such further term; and in case the arbitrators should differ in the amount of their appraisement or valuation, as aforesaid, they shall then choose an umpire, qualified as afore- said, whose decision, under oath, shall fix and detemiine the same, and per cent, on the amount of the appraise- ment or valuation so fixed and determined shall be the annual rent of the said lot of land for such further term. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that at the expiration of the term to be granted by such renewed release as aforesaid, the said party of the first part, his successors or assigns, shall have the full liberty and choice either to grant a second renewal of this lease for the further term of years thence ensuing? at such annual rent, payable half-yearly (but not less than the rent of the preceding term), as shall be ascertained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, administrators, or assigns, the value of the said house to be built and erected as aforesaid, which value shall be ascertained by three disinterested persons' on oath, to be chosen^ as aforesaid. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that in case the said party of the first part, his successors or assigns, shall and do elect and choose to grant a second renewal of this lease as aforesaid, he, the said party of the first part, his successors or assigns, shall still havp and retain the full liberty and choice at the expiration of the term to be granted by such second renewal, either to grant a third renewal of this lease for the further term of twenty-one years thence ensuing, at such annual rent, payable half-yearly (but not less than the rent of the last preceding term), as shall be ascertained and determined in the manner aforesaid, or to pay unto the said LANDLORD AND TENANT- 1177 Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals party of the second part, his executors, administrators, or as- signs, the value of the said house, which value shall be ascer- tained as aforesaid; and in this manner, at the expiration of the term to be granted by the first renewal of this lease, and at the expiration of each and every term which may be thereafter granted by each and every subsequent renewal of this lease, the said party of the first part, his successors or assigns, shall still have and retain the full liberty and choice, either to grant a further renewal of this lease for the further term of twenty- one years, at such annual rent, payable half-yearly (but not less than the rent of the last preceding term), as shall be as- certained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, adminis- trators, or assigns, the value of the said house, which value shall be ascertained as aforesaid. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that in case the said party of the first part, his successors or assigns, shall refuse to grant a renewal of this lease as afore- said, the said house shall be valued and paid for as aforesaid: Provided, always, that the party of the second part, his exec- utors, administrators, or assigns, shall not be compelled to surrender the premises until such payment be made or ten- dered. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that in case the said party of the first part, his successors or assigns, shall, at the expira- tion of the term to be granted by the first renewal of this lease, or at the expiration of any term which may be granted there- after, by any subsequent renewal thereof, elect and choose to pay unto the said party of the second part, his executors, administrators, or assigns, the value of the said house to be ascertained as aforesaid, and shall actually make such payment or tender the same, he, the said party of the second part, his executors, administrators, or assigns, shall then deliver up the said house in the same order and condition in which it was at the time of its valuation as aforesaid, and also all and singular other the premises hereby demised, into the hands and pos- session of the said party of the first part, his successors or 1178 Bradbury's lawyers' manual The Same — Renewal Lease assigns, without fraud or delay. And lastly, it is mutually covenanted and agreed, by and between the parties aforesaid, that each renewed lease shall contain the like covenants, provisos, and conditions, as herein contained, except as regards the erection of any house or building on the said demised prem- ises. In witness whereof, the parties hereto have caused their hands and seals to be hereto affixed, on the day and year first above written. FORM NO. 629 The Same — Renewal Lease (As in form 628, to* thence continuing as follows:) Whereas, the said party of the first part, by indenture dated the day of , 19 , did grant and demise unto , all that certain lot of land hereinafter de- scribed, for the term of twenty-one years, from the day of then next, subject to certain rents, covenants, and conditions therein reserved and expressed. And, among other things, it was thereby agreed, that in case of the erection on the said lot of land of a building of such description as is therein specified, the said party of the first part should, at the expiration of the said term, grant a new lease of the said lot for the further term of twenty-one years, at an annual rent to be agreed upon or ascertained as is therein mentioned, and with such covenants, conditions, and provisos to be therein inserted as are hereinafter contained; and. Whereas, a building has been erected on the said lot of land of the description mentioned in the said lease, according to the terms thereof, whereby the said party of the second part is entitled to a renewal of the said lease for such further term, at an annual rent hereinafter reserved, and now in the manner prescribed by the said lease, payable haK-yearly, and subject to the covenants, conditions, and provisos hereinafter contained. Now, therefore, this agreement (proceeding as in preceding form from*) . LANDLORD AND TENANT 1179 Surrender of Lease FORM NO. 630 Surety In consideration of the letting of the premises above de- scribed, and of the sum of $1, hereby become surety for the punctual payment of the rent, and performance of the covenants in the above-written agreement mentioned, to be made and performed by if any default shall be made therein, do hereby promise and agree to pay unto such sum or sums of money as will be sufficient to make up such deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of nonpay- ment or proofs of demand being made. Given under hand and seal the day of ,19 . FORM NO. 631 Surrender of Lease This indenture, made the day of , 19 , between of the second part Whereas, the said part of the second part, by a certain Indenture of Lease bearing date the day of , 19 , did demise and to farm let unto Now these presents witness, that for and in consideration of the sum of dollars, paid by the said part of the second part to the said part of the first part at the sealing and deUvery of these presents, the receipt whereof is hereby acknowledged, and to the intent and purpose that the said term in the said land and premises may be wholly merged and ex- tinguished, the said part of the first part ha given, granted and surrendered, and by these presents do give, grant and surrender unto the said part of the second part and heirs, all the said lands and premises in the said Indenture of Lease contained and demised as aforesaid, and all the estate, 1180 Bradbury's lawyers' manual Notice to Tenant right, title, interest, term of years, property, claim and demand whatsoever of the said part of the first part of, in, to or out of the same, or any part or parcel thereof. To HAVE and to hold the said land and premises to the said part of the second part, heirs and assigns, to their own proper use and behoof. And the said part of the first part do hereby, for heirs, executors and administrators, covenant and agree to and with the said part of the second part, heirs and assigns, that the said part of the first part ha not at any time heretofore made, done, committed, executed, permitted or suffered any act, deed, matter or thing whatsoever, whereby or wherewith, or by reason or means whereof the said lands and premises hereby assigned or surrendered, or any part. or parcel thereof are, or is, or may, can or shall be in any wise impeached, charged, affected or incumbered. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. FORM NO. 632 Notice to Tenant State of County New York OF ss: A. B., against C. D., Landlord, Tenant. Take notice, that you are justly indebted unto A. B. in the sum of forty dollars for rent of the premises No. , Street (3d floor) Manhattan Borough, City of New York, from the day of , 19 , to the day of , 19 , which you are required to pay on or before the expiration of three days from the day of the service LANDLORD AND TENANT 1181 Petition for Summary Proceedings, Nonpayment of Rent of this notice, or surrender up the possession of the said premises to A. B. in default of which I shall proceed under the Statute to recover the possession thereof. Dated this day of , 19 . To: A. B, C. D., Landlord. Tenant. In possession of the premises above described. FORM NO. 633 Petition for Summary Proceedings, Nonpayment of Rent To THE MUNICIPAL COURT OF THE CiTY OF NeW YoEK, Borough of Manhattan, district The Petition of A. B. of the City of New York, respectfully shows that he is (Agent of A. B.) the owner and landlord in respect to the premises hereinafter described,, and that said A. B., the owner and Landlord of the premises hereinafter men- tioned, entered into an agreement with C. D. as Tenant thereof, and that by the terms of said agreement, the said Tenant hired from the said Landlord the premises described and des- ignated as follows, to wit: the (four) rooms on the (third) floor in the dwelling situated No. , Street, in the (second) District, Borough of (Manhattan), in the City of New York, and that the said Tenant in and by said agree- ment undertook and promised to pay to the said Landlord, the sum of dollars for one month payable on the day of , 19 , for the use and occupation of said premises. That on the day of , 19 , there was due to the said Landlord, under and by virtue of said agreement, the sum of dollars per month rent of said premises before described, to wit: from the day of , 19 , to the day of , 19 , and your Petitioner further shows that said rent has been duly demanded from the said Tenant CD. since the same be- came due, and that the said CD. Tenant has made default in 1182 Bradbury's lawyers' manual Petition for Summary Proceedings, Nonpayment of Rent the payment thereof, pursuant to the agreement under which the said premises are held, and that said CD. Tenant and E. F. under-tenant hold said premises over and continue in the possession of said premises without the permission of the said Landlord, after default in the payment of the rent as aforesaid. Your Petitioner therefore prays for a final order to remove the said CD. Tenant and E. F. under-tenant from the possession of said premises. Dated Borough of , New York City, ,19 . City of New York, County of Borough of ss: A. B., the above-named Petitioner, being duly sworn, doth depose and say, that he has read the foregoing Petition subscribed by him, and knows the contents thereof, and that the same is true to the knowledge of deponent, ex- cept as to the matters therein stated to be alleged on informa- tion and belief, and as to those matters he beUeves it to. be true. That the reason why this verification is made by de- ponent and not by the Landlord is, that all the material alle- gations are within the personal knowledge of deponent and not of the Landlord. Sworn before me, this ] A. B. day of , 19 . I {Signature and title of officer.) NO. CHAPTER LIV MATRIMONIAL ACTIONS FORMS PAGE NO. PAGE 634. Findings by referee 1183 638. Interlocutory judgment 1189 635. Notice of motion for inter- 639. Notice of motion for final locutory judgment on ref- judgment 1190 eree's report 1185 640. Affidavit on motion for final 636. Order confirming referee's judgment 1191 report 1186 641. Certificate of county clerk ... 1192 637. Findings by court after trial 642. Final judgment 1193 before referee 1187 FORM NO. 634 Findings by Referee Supreme Court, New York County. Mary Jones, Plaintiff, against John Jones, Defendant. To the Honorable Supreme Court of the State of New York: In pursuance of an order of this Court, made and entered in this action on , 19 , by which it was referred to me to hear and determine, also to report the evidence and the other proceedings upon the reference to the Court, with my opinion, with all convenient speed, I, the subscriber, do hereby certify and report as follows : That I first took and filed the oath required by law, which is hereto annexed. That annexed hereto is a copy of the testi- mony numbered pages to , both inclusive, taken be- fore me, as well as all the Exhibits which were filed before me 1183 1184 Bradbury's lawyers' manual Findings by Referee and referred to in this my said report herein, and that a copy of my opinion is hereto annexed and made a part hereof. And I further report that the above entitled action having been regularly brought on for hearing before the undersigned, as Referee, on the day of , 19 , in the City, County and State of New York, and having been ad- journed from time to time, and the plaintiff having appeared in person and by her attorneys, E. F. Esq., and the defendant John Jones and the co-respondent, Edith Brown, having ap- peared before me personally aiid by their attorneys G. H. Esq., and the evidence on behalf of the parties having been duly heard and the testimony of the parties and witnesses on both sides having been duly signed and sworn to before me, the following findings of fact and conclusions at law are hereby made. FINDINGS OF FACT First: That the plaintiff and the defendant were married in the City of New York, State of New York, on the day of , 19 ; and that there is no issue of said marriage. Second : That the plaintiff and the defendant were, at the time of the commencement of this action and still are, residents of the County of New York and State of New York. Third: That at the Hotel in State of , during the three days beginning , 19 , and ending , 19 , the defendant John Jones committed adultery with the co-respondent Edith Brown. Fourth: That said acts of adultery were committed with- out the consent, connivance, privity or procurement of the plaintiff. Fifth : That at the time of the commencement of this action five years had not elapsed since the plaintiff discovered the fact that such adultery had been committed by the defendant. Sixth: That since the discovery of the commission of such adultery the plaintiff has not voluntarily co-habited with the defendant. MATRIMONIAL ACTIONS ' 1185 Notice of Motion for Interlocutory Judgment on Referee's Report Seventh: That the plaintiff has not forgiven or condoned the adultery committed by the defendant. Eighth: In relation to the counterclaim interposed by the defendant, I find that the plaintiff has not been guilty of any acts of adultery charged against her in the answer. conclusions of law The plaintiff is entitled to a decree dismissing the counter- claim on the merits and dissolving the bonds of matrimony between herself and the defendant , with costs, and judgment is directed to be entered accordingly, subject, to confirmation in accordance with the rules in such case made and provided. Dated, , 19 . Edward Edwards, ' Referee. FORM NO. 635 Notice of Motion for Interlocutory Judgment on Referee's Report {Title of Action) Please take notice that on the Referee's Report and Opin- ion, and the testimony taken in the action, and on all other proceedings had in the above entitled action, a motion will be made at Special Term, Part 3 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 o'clock in the forenoon, or as soon thereafter as counsel can be heard for an Order confirming the Report of the Referee herein and for an interlocutory judgment of divorce in conform- ity with the Referee's Report and for such other further and different rehef as may be equitable, with costs. Dated, January 9th, 1915. Yours, &c., E. F., To G. H. Attorney for Plaintiff. Attorneys for defendant and Co-respondent. 1186 Bradbury's lawyers' manual Order Confirming Referee's Report FORM NO. 636 Order Confirming Referee's Report ' At Special Term, Part III, of the New York Supreme Court, held in and for the County of New York, at the County Court House therein, on the 24th day of May, 1915. Present: Hon. Samuel Greenbaum, Justice, Mary Jones, Plaintiff, against John Jones, Defendant, and Edith Brown, co-respondent. The above entitled case having been duly referred to Edward Edwards, Esq., as Referee, and the report of said Referee dated ,19 , having been duly filed in the office of the Clerk of the County of New York on the day of ,19 , and a motion having been duly made to confirm said report, and said motion having come on regu- larly to be heard, and said motion having been duly considered on briefs presented by E. F. on behalf of the plaintiff and G. H. on behalf of the defendant and co-respondent, and due con- sideration having been had, it is On motion of E. F. attorney for the plaintiff, hereby Ordered that said report be and hereby is in all respects confirmed. Enter, S. G., J. S. C. ' Some practitioners enter an interlocutory judgment which confirms the referee's report, but a* the reference in a divorce action is merely to advise the conscience of the court it is deemed the better practice to enter an order such as that in the text and then present findings to the court, so the interlocutory decree and eventually the final decree may be based on findings made by the court. MATRIMONIAL ACTIONS 1187 Findings by Court After Trial Before Referee FORM NO. 637 Findings by Court After Trial Before Referee ^ (Title of Action) The above-entitled action having been duly tried before Edward Edwards, Esq., and said Referee having duly made his report to this Court in which he found in favor of the plain- tiff and against the defendant and advised that an interlocu- tory and final decree of absolute divorce be granted to the plaintiff against the defendant, with costs, and said Referee having duly made findings of fact and conclusions of law, and a motion having been duly made and granted confirming said Referee's report in all particulars, the following findings of fact and conclusions of law are hereby made : FINDINGS OF FACT First: That the plaintiff and the defendant were married in the City of New York, State of New York, on the day of > 19 ) and that there is no issue of said marriage. Second: That the plaintiff and the defendant were, at the time of the commencement of this action and still are, resi- dents of the County of New York and State of New York. Third: That at the Hotel in , State of , during the three days beginning , 19 and ending ,19 , the defendant John Jones com- mitted adultery with the co-respondent Edith Brown. Fourth: That said acts of adultery were committed with- out the consent, connivance, privity or procurement of the plaintiff. Fifth: That at the time of the commencement of this 1 See note to preceding form. If the hearing was before the court instead of before a referee the findings would be the same except for the recital in the first paragraph. 1188 ' Bradbury's lawyers' manual Findings by Court After Trial Before Referee action five years had not elapsed since the plaintiff discovered the fact that such adultery had been committed by the de- fendant. Sixth: That since the discovery of the commission of such adultery the plaintiff has not voluntarily co-habited with the defendant. Seventh: That the plaintiff has not forgiven or condoned the adultery committed by the defendant. Eighth: In relation to the counterclaim interposed by the defendant, I find that the plaintiff has not been guilty of any acts of adultery charged against her in the answer. CONCLUSIONS OF LAW The plaintiff, Mary Jones, is entitled to a decree dismissing the counterclaim on the merits and dissolving the bonds of matrimony between herself and the defendant, John Jones, with costs, an interlocutory judgment is directed to be entered accordingly, and after the expiration of three months from the entry of such interlocutory judgment, final judgment dismissing the counterclaim on the merits and dissolving the bonds of matrimony between Mary Jones and John Jones, with costs, shall be entered as of course, unless otherwise ordered by the court, and judgment for costs shall be entered upon the entry of the interlocutory judgment in accordance with Section 1774 of the Code of Civil Procedure. Dated, , 19 . Samuel Greenbaum, Justice of the Supreme Court of the State of New York. MATRIMONIAL ACTIONS 1189 Interlocutory Judgment FORM NO. 638 Interlocutory Judgment At Special Term, Part III of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the 24th day of May, 1915. Present: Hon. Samuel Greenbaum, Justice. Mary Jones, Plaintiff, against John Jones and Edith Brown, co- respondent. Defendant. The above-entitled action for an absolute divorce having been duly referred to Edward Edwards, Esq., as Referee,^ and said Referee's report dated , 19 having been duly filed in the office of the Clerk of the County of New York on the day of , 19 , and said report having been duly confirmed by an order of this court dated the day of , 19 , and findijigs of fact and conclusions of law having been duly made by the court, dated the day of , 19 , in which it was directed that an inter- locutory judgment of divorce be granted to the plaintiff and against the defendant, with costs, and dismissing the counter- claim against the plaintiff on the merits, and that after the expiration of three months from the entry of said interlocu- tory judgment a final judgment for the same relief be entered as of course, unless otherwise ordered by the court. Now, on motion of E. F., attorney for the plaintiff, it is Ordered, adjudged and decreed that this judgment is interlocutory and not final; that the counterclaim of the de- fendant, John Jones, against the plaintiff, Mary Jones, be 1 See notes to two preceding forms. 1190 Bradbury's lawyers' manual Notice of Motion for Final Judgment dismissed on the merits and that the bonds of matrimony between the plaintiff, Mary Jones and the defendant John Jones, be dissolved upon the entry of a final judgment as hereinafter provided, and that after the expiration of three months from the filing and entry of this interlocutory judg- ment a final judgment shall be entered as of course, dismissing the counterclaim of the defendant against the plaintiff on the merits, and dissolving the bonds of matrimony between Mary Jones and John Jones unless otherwise ordered by the court, in accordance with the law; and it is further Ordered, adjudged and decreed that the plaintiff recover of the defendant taxable costs and disbursements of the refer- ence herein and of the action and that the same, after having been duly taxed, be entered in this interlocutory judgment without further order of the court; and said costs and disburse- ments having been duly taxed at the sum of dollars, it is further Ordered, adjudged and decreed that the plaintiff, Mary Jones, recover of the defendant, John Jones, the smn of dollars, and that the plaintiff have execution therefor in accordance with the provisions of Section 1774 of the Code of Civil Procedure after the entry of final judgment herein. Enter, . S. G., J. S. C. Wm. F. Schneider, (No children.) Clerk. FORM NO. 639 Notice of Motion for Final Judgment {Title of Action) Please take notice that on the annexed affidavit of E. F., sworn to the day of ,19 and the certif- icate of the Clerk of New York County, and on all proceedings MATRIMONIAL ACTIONS 1191 Affidavit on Motion for Final Judgment had herein a motion will be made at Special Term, Part III of the New York Supreme Court to be held in and for the County of New York at the County Courthouse at 10 o'clock in the forenoon on the day of , 19 , or as soon thereafter as counsel can be heard for a final judgment of divorce in the above-entitled action and for such other, further and different relief as may be equitable. Dated, N. Y., , 19 . Yours, etc., E. F., To G. H., Attorney for Plaintiff. Attorneys for Defendant and Co-respondent. FORM NO. 640 Affidavit on Motion for Final Judgment (Title of Action) State, City and County of New York: ss: E. F., being duly sworn says, that he is the attorney for the plaintiff in the above entitled action. This is an action for an absolute divorce. The case was tried before a Referee and an interlocutory judgment was entered in the office of the clerk of the County of New York on the day of , 19 , in favor of the plaintiff. The interlocutory judgment was served on the attorneys for the defendant and the co-respondent on No order has been made in the action since the entry of the interlocutory judgment as aforesaid. Sworn to before me this 25th | E. F. day of August, 1915. J (Signature and title of officer.) 1192 Bradbury's lawyers' manual Certificate of County Clerk FORM NO. 641 Certificate of County Clerk ^ COUNTY clerk's OFFICE I HEREBY CERTIFY that a decision and an interlocutory judgment of divorce in favor of in an action brought in the Supreme Court by- Plaintiff, against Defendant. was filed in this office on the day of , 19 , and that no order has been entered in this action since the entry of the interlocutory judgment. Dated, , 1909. Clerk of the County of New York. ' If the case is tried before the court instead of a referee the papers will be the same as in the preceding forms except they will recite the trial before the court instead of before a referee, and no order confirming report of referee is necessary. MATEIMONIAL ACTIONS 1193 Final Judgment FORM NO. 642 Final Judgment At Special Term, Part III, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Thomas F. Donnelly, Justice. Mary Jones, Plaintiff, against John Jones and Edith Brown, Co-respondent, Defendant. An interlocutory judgment of divorce having been duly entered in the ofHce of the Clerk of the County of New York in the above entitled action, on the day of , 19 , adjudging that after the expiration of three months a final decree of divorce be awarded to the plaintiff Mary Jones, against the defendant John Jones, with costs and disburse- ments, which were duly taxed and entered in said interlocutory judgment in the sum of dollars, and more than three months having expired since the entry of said interlocu- tory judgment and no order of the court having been made in the meantime in said action. Now, on reading and filing the affidavit of E. F., sworn to ,19 , together with the notice of motion dated , 19 , with due admission of service of said notice of motion and affidavit on the attorneys for the defendant and co-respondent, and on all proceedings had herein, and said motion having come on regularly to be heard on the day of , 19 , and E. F., attorney for the plaintiff, having appeared in favor of said motion and no one having appeared in opposition thereto. 1194 Bradbury's lawyers' manual Final Judgment No on motion of E. F., attorney for the plaintiff it is hereby Ordered, adjudged and decreed that the counterclaim of the defendant, John Jones, against the plaintiff, Mary Jones, be and the same hereby is dismissed on the merits; and it is further Ordered, adjudged and decreed that the marriage be- tween the said plaintiff, Mary Jones, and the defendant, John Jones, be and the same hereby is dissolved; that it shall be lawful for the plaintiff, Mary Jones, to marry again in the same manner as if the said defendant, John Jones, were ac- tually dead, but it shall not be lawful for the defendant, John Jones, to marry any other person until the said plaintiff shall be actually dead; and that the plaintiff, Mary Jones, may re- sume her maiden name of Mary Smith, and it is further ^ Ordered, adjudged and decreed that the plaintiff recover from the defendant the sum of dollars, costs and disbursements taxed herein and that the plaintiff have execu- tion therefor. Enter, Thomas F. Donnelly, Justice of the Supreme Court of the State of New York. Wm. F. Schneider, Clerk. ' If there are any children the directions concerning their custody shall be in- serted here. CHAPTER LV BUILDING AGREEMENT FORMS NO. PAGE 643. Agreement for building 119.5 FORM NO. 643 Agreement for Building Articles of agreement, made this day of , 19 , between , of the first part, and , of the second part. First: The sa'd part of the second part do hereby, for heirs, executors, and administrators, covenant, promise, and agree to and with the said part of the first part, executors, administrators, or assigns, that , the said part of the second part, executors or administrators, shall and will, for the consideration hereinafter mentioned, on or before the , well and sufficiently erect and finish the new building , agreeable to the drawings and specifications made by , and signed by the said parties and hereunto annexed, within the time aforesaid, in a good, workmanlike, and substantial manner, to the satisfaction, and under the direction of the said , to be testified by a writing or certificate under the hand of the said , and also shall and will find and provide such good, proper, and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for the com- pleting and finishing all the , and other works of the said building mentioned in the specification , for the sum of . And the said part of the first part do hereby, for , heirs, executors, and administrators, covenant, promise, and agree, to and with 1195 1196 Bradbury's lawyers' manual Agreement for Building the said part of the second part, , executors and administrators, that , the said part of the first part, executors or administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said part of the second part, as specified, well and truly pay, or cause to be paid, unto the said part of the second part, , executors, administrators, or assigns, the sum of dollars, lawful money of the United States of America, in manner following: provided, that in each of the said cases, a certificate shall be obtained and signed by the said And it is hereby further agreed by and between the said parties : First: The specifications, conditions, and the drawings are intended to co-operate, so that any works exhibited in the draw- ings and conditions, and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings, to the true meaning and intention of the said drawings, conditions, and specifications, without extra charge whatsoever. The specifica- tions, drawings, and conditions are hereby made a part hereof. Second : The contractor, at his own proper costs and charges, is to provide all manner of materials and labor, scaffolding, implements, moulds, models, and cartage of every description, for the due performance of the several erections. Third: Should the owner, at any time during the progress of the said building , request any alteration, deviation, additions, or omissions, from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and rea- sonable valuation. Fourth: Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a suffi- ciency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in BUILDING AGREEMENT 1197 Agreement for Building writing being given to finish the said works, and the expense shall be deducted from the amount of the contract. Fifth: Should any dispute arise respecting the true con- struction or meaning of the drawings or specifications, the same shall be decided by , and decision shall be final and conclusive; but should any dispute arise respecting the true value of the extra work, or of the works omitted, the same shall be valued by two competent persons — one employed by the owner, and the other by the contractor — and those two shall have the power to name an umpire, whose decision shall be binding on all parties. Sixth: The owner shall not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, or any parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing the same (loss or damage by fire excepted) . Seventh: The contractors, and each of them, to be respon- sible for each and every violation of the city ordinances caused by the obstruction of streets and sidewalks, and shall hold the owner harmless from any and all damage or expense arising therefrom; said contractors, and each of them, shall be respon- sible for, and shall save and keep the owner harmless and indemnified from and against all liability by reason of injury or damage to person or property in consequence of obstruc- tions of the street or sidewalk, or of any materials or other thing therein or thereon, if any, and from any excavation or want of fight or other proper guard or warning. Eighth: The contractors, and each of them, to take all necessary and proper steps to make, and to properly, carefully, and skillfully make all excavations without injury to adjoining buildings and property, and to save and keep the owner harm- less and indemnify him from and against all fiability and damage by reason of excavations, if any, and failure to prop- erly, carefully, and skillfully make the same, and to properly, carefully, and skillfully do and perform all the work contracted for. Ninth: The contractors, and each of them, to save and keep 1198 Bradbury's lawyers' manual Agreement for Building the building referred to in this contract, and the lands on which it is situated free from any and all mechanics' hens, and other liens, by reason of his work or any material or other thing used therein; and if the contractors, or either of them, do not, the owner may retain sufficient of the contract price to pay the same, and all costs by reason of or in consequence thereof, and may pay said hen or liens, if any, and costs, and deduct the amount thereof from the contract price. In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year above written. In presence of {Signatures of parties.) (Acknowledgment . ) CHAPTER LVI ATTORNEY AND CLIENT ^ FORMS NO. PAGE NO. PAGE 644. Consent to substitution of 645. Order of substitution on con- attorney 1199 sent 1201 FORM NO. 644 Consent to Substitution of Attorney - New York Supreme Court, New York County. Adam Brown, Plaintiff, against Charles Darwin, Defendant. It is hereby stipulated and consented, that George Henry of No. , Street, Borough of Man- ' A party always has a right to a substitution of attorneys without giving any reason therefor. If, however, the attorney has not been paid for his services the attorney has the right to retain a hen on any papers in his possession in the action in which the substitution is desired, and if the attorney and cUent cannot come to an agreement as to the value of the attorney's services a summary proceeding may be begun in the Supreme Court to determine the value of these services. The substitution then may be ordered either upon pajTnent to the attorney of the amount due him or by protecting his lien on the cause of action or counterclaim. But if the attorney's claim for services is in regard to a defensive litigation purely and there is no cause of action or counterclaim to which his lien could attach, he will usually not be required to give up the papers until his bill is paid. This is assuming, of course, that the attorney has not done anything which would Justify the client in asking for a substitution. If the attorney has been guilty of any conduct whatsoever which would justify the client in asking for a substitu- ^ The consent to substitution naay be signed by the attorney without an ac- knowledgment, as the court takes judicial notice of the signature of attorneys, but the consent must be acknowledged by the party. 1199 1200 bradbxjry's lawyers' manual Consent to Substitution of Attorney • hattan, City and State of New York, be substituted as attorney for the defendant in the place of Ely Franklin, and that an order to this effect may be entered without notice. Dated the day of , 19 . Ely Franklin, Attorney for Defendant. Charles Darwin, Defendant. 1 ss: State of New York County of New York On this day of , 19 , before me per- sonally came Charles Darwin, to me known and known to me to be the individual described in and who executed the fore- going consent and he acknowledged to me that he executed the same. {Signature and title of officer.) (If the party for whom the substitution is had is a corporation use the following corporation acknowledgment:) State of New York 1 f SS ' County of New York j On this day of , 19 , before me per- sonally came Charles Darwin, to me known, who, being by me tion, then the substitution will usually be ordered by the court without terms and the attorney wUl be left to his action to recover the amount due him. Where an attorney begins an action contrary to the instructions of his client, no lien is created in his favor on the cause of action, and a plaintiff who is solvent and able to pay any legal obhgation for the services his attorney has rendered should be permitted to discontinue the action thus brought without regard to the attorney's lien. Mitchell v. Mitchell, 1 Bradbury's PI. & Pr. Rep. 327. Where a client has agreed with an attorney to pay such attorney a percentage of any such recovery which may be had in the action, and after the attorney has prepared the complaint the client verifies the same but refuses to deliver it to the plaintiff and refuses to go on with the action, and no action is brought or recovery had, the attorney cannot recover from the client the percentage of the claim specified in the agreement, but can recover on a quantum meruit only for the services actually performed. Andrews v. Haas, 3 Bradbury's PL & Pr. Rep. 553. On a motion to compel the plaintiff's attorney to disclose the plaintiff's address, it was held that the rnotion should be denied upon the plaintiff fiUng an admission duly acknowledged by the plaintiff personally of service on him of an order direct- ing the payment of alimony. Grieser v. Grieser, 3 Bradbury's PI. & Pr, Rep. 591. ATTORNEY AND CLIENT 1201 Order of Substitution on Consent duly sworn, did depose and say that he resided in ; that he is the President of the Company, the corporation described in and which executed the foregoing in- strument; 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 corpora- tion, and that he signed his name thereto by like order. {Signature and title of officer.) FORM NO. 645 Order of Substitution on Consent At Special Term, Part II, of the New York Supreme Court, held in and for the County of New York, at the County Court- house therein, on the day of , 19 . Present: Hon. Samuel Greenbaum, Justice. Adam Brown, Plaintiff, against Charles Darwin, Defendant. On the annexed consents, it is hereby Ordered, that George Henry, Esq., of No. , Street, Borough of Manhattan, City and State of New York, be and hereby is substituted as attorney for the defend- ant in the above entitled action in the place of Ely Franklin. Enter, S. G., J. S. C. CHAPTER LVII BONDS FORMS NO. PAGE NO. PAGE 646. Bond 1202 648. Bond of indemnity on paying 647. Bond, interest, insurance, lost note 1205 tax, water rates and as- sessment clauses 1203 FORM NO. 646 Bond Know all men by these presents, that held and firmly bourld unto , in the sum of dollars, to be paid to the said or to certain attor- ney, executors, administrators, or assigns, For which payment, well and truly to be made, bind and heirs, executors or adminis- trators, jointly and severally, firmly by these presents. Sealed this day of , in the year of ovu- Lord, 19 . The condition of this obligation is such, that if the above bounden heirs, executors, or administrators, shall do well and truly pay or cause to be paid unto the above- named , certain attorney, executors, adminis- trators, or assigns, the sum of , without fraud or delay, then the preceding obUgation to be void, otherwise to remain in full force and virtue. Sealed and delivered in the presence of [Acknowledgment] 1202 BONDS 1203 Bond — Interest, Insurance, Tax, Water Rates and Assessment Clauses FORM NO. 647 Bond — Interest, Insurance, Tax, Water Rates and Assessment Clauses Know all men by these presents, that held and firmly bound unto , in the sum of dollars, to be paid to the said , or to certain attorney, executors, administrators, or assigns. For which payment, well and truly to be made, bind and heirs, executors, or administra- tors, jointly and severally, firmly by these presents. Sealed this day of , in the year of our Lord, 19 .* The condition of this obligation is such, that if the above- bounden , heirs, executors, or administrators, shall, and do well and truly pay, or cause to be paid, unto the above- named , certain attorney, executors, administrators, or assigns, the sum of , without fraud or delay, then the preceding obligation to be void; otherwise to remain in full force and virtue. And the said further covenant for and assigns, that he will during all the time until all the said moneys secured by these presents shall be fully paid and satis- fied, pay and discharge, immediately after they shall be or become due or payable, all taxes, water rents, assessments, or which may be levied, laid, or assessed upon the premises described in the mortgage which accompanies this bond, or any part thereof; and in case the said part of the first part , or assigns, shall fail or neglect to pay all such taxes, assessments, water rents, or , or either of them, on said premises, or any part thereof, within , after the same shall be or become due or payable, then the said part of the second part, , or assigns, may pay the same, and the sum so paid, with interest thiereon from the time of such payment, the said for , and 1204 Bradbury's lawyers' manual Bond — Interest, Insurance, Tax, Water Rates and Assessment Clauses assigns, covenant to pay to the said part of the second pa.rt, , or assigns, on demand, and that the same shall be and be deemed to be secured by these presents, and shall be collectible thereon and thereby in like manner as the said principal sum and interest. And it is hereby expressly agreed, that should any default be made in the payment of the said principal or interest, or any part thereof, on any day whereon the same is made pay- able, as above expressed; and should the same remain unpaid and in arrear for the space of days, then, and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sum, with all the arrearage of interest thereon, shall, at the option of the said obligee, , executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything hereinbefore contained to the contrary thereof in anywise notwithstanding; with the like rights in the part of the second part, and h executors, administrators, and assigns, at h option to elect that the whole principal, interest, and all sums secm-ed hereby, shall become due after failure, for like times, to insure or pay taxes, assessments, and water rates, or any part thereof. And it is also agreed by the said obligor , that will keep the buildings erected, and to be erected, upon the lands described in the mortgage accompanying this bond, in- sured against loss and damage by fire, by solvent insurers, and in an amount of at least dollars, and assign the policy and certificates thereof to the said obligee , and in default thereof it shall be lawful for the said obligee to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount secured by these presents, and payable on demand, with interest at the rate of per cent, per annum. Sealed and delivered in the presence of A. B., (L. S.) [Acknowledgment.] BONDS 120^, Bond of Indemnity on Paying Lost Note FORM NO. 648 Bond of Indemnity on Paying Lost Note Know all men by these presents, that we, C. D. and M. N., are held and firmly bound unto E. F. and G. F., in the sum of $1,000, lawful money of the United States of America, to be paid to the said E. F. and G. F., their executors, administrators, or assigns; for which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors, and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated this day of , 19 . Whereas, the above-named E. F., by his promissory note, signed by him for the said G. F., his father, and himself, dated the day of , 19 , did promise to pay unto Y. Z., or order, $400, sixty days after date, for value re- ceived; and such said note was afterwards indorsed by the said Y. Z., and others and became the property of A. B., of Rome, as the said A. B. avers; and, whereas, the said A. B. alleges he sent the said note by the mail, on the 5th day of April last, to the abdve-bounden C. D., to be delivered by him for his, the said A. B.'s use; which mail being robbed, and the said note not having been offered for payment, it is apprehended the said note was stolen out of the said mail or otherwise lost; and, whereas, the said E. F. and G. F. have on the day of the date hereof, at the request as well of the said A. B. as of the said C. D., and upon his, the said C. D., promising to indemnify the said E. F. and G. F., and deliver up to them the said note to be canceled, when found, paid the said C. D. the sum of $400, in full satisfaction and discharge of the said note (the receipt whereof the said CD. does hereby acknowledge); the condition, therefore, of the above written obligation is such, that if the said CD., his heirs, executors, or administrators, or any of them, do and shall, from time to time, and at all times hereafter, save, defend, keep harmless, and indemnified, the 1206 Bradbury's lawyers' manual Bond of Indemnity on Paying Lost Note said E. F. and G. F., their executors and administrators, of, from, and against the said note of $400, and of and from all costs, damages, and expenses that shall or may happen to arise therefrom, and also deliver or cause to be delivered up the said note, when, and so soon as the same shall be found to be canceled ; then this obligation to be void, otherwise to be of full force and virtue. [Acknowledgment.] C. D., (l. s.) M. N., (l. s.) CHAPTER LVIII POWER OP ATTORNEY FORMS NO. PAGE NO. PAGE 649. Power of attorney 1207 651. Power of attorney to lease or 650. General order of attorney in sell land 1209 fact in bankruptcy, when 652. Revocation of power of at- creditor is not represented torney 1210 by attorney at law 1208 FORM NO. 649 Power of Attorney Know all men by these presents, that .1 John Smith residing at No. , Street, in the Borough of Man- hattan, City and County, and State of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint William Brown my true and lawful attorney for me and in my name, place and stead to {here, recite matters to which power relates) giving and granting unto William Brown, said attorney, full power and authority to do and per- form all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that William Brown, said attorney or his substitute shall lawfully do or cause to be done by virtue thereof. In witness whereof I have hereunto set my hand and seal, this day of , 19 . John Smith. Sealed and delivered in the presence of James Harvey, Frank Doe. 1207 1208 Bradbury's lawyers' manual General Order of Attorney in Fact in Bankruptcy ss: State of New York County^ of On this day of , 19 before me per- sonally came William Brown to me known and known to me to be the person described in and who executed the foregoing instrument, and he acknowledged to me that he executed the same. (Signature and title of officer.) FORM NO. 650 General Order of Attorney in Fact in Bankruptcy, when Creditor is not Represented by Attorney at Law In the District Court of the. United States, for the Southern District of New York. In the Matter of John Jones, a Bankrupt. To William Brown, No. Broadway, New York City, N. Y.: I, John Henry, of No. , Street, in the City of Philadelphia, in the State of Pennsylvania, do hereby authorize you (or anyone of you) to attend the meeting or meetings of creditors of the bankrupt aforesaid, at a Court of Bankruptcy, whenever advertised or directed to be holden on the day and at the hour appointed and notified by said court in said matter, or at such other place and time as may be appointed by the Court for holding such meeting or meetings, or at any of said meeting or meetings or any adjournment or adjournments thereof which may be had and then and there, from time to time and as often as there may be occasion, for me and in my name to vote for or against any proposal or resolu- tion that may be then submitted under the Acts of Congress, relating to bankruptcy, and the choice of trustee or trustees of POWER OF ATTORNEF 1209 Power of Attorney to Lease or Sell Land the estate of the said bankrupt, and for me to assent to such appointment of trustees; and with Uke powers to attend and vote at any other meeting or meetings of creditors, or sitting or sittings of the court which may be held therein, for any of the purposes aforesaid, also to accept any composition proposed by said bankrupt in satisfaction of his debts and to receive pay- ment of dividends and of money due him under any composi- tion and for any other purpose in my interest whatsoever, with fuU power of substitution. In witness WHEREor, I have hereunto signed my name and affixed my seal the day of , 19 . John Jones (l. s.) Signed, sealed and delivered in the presence of: William Williams. United States of America State of County of ss: On this day of , 19 , before me per- sonally appeared John Jones, to me known and known to me to be the person described in and who executed the foregoing instrument and he acknowledged to me that he executed the same for the uses and purposes therein mentioned. {Signature and title of officer.) FORM NO. 851 Power of Attorney to Lease or Sell Land Know all men by these presents, that whereas I, John Jones, am seized in fee of the following real property {describe the property the same as it would be described in a deed,) know ye, that I the said John Jones, have constituted and appointed and by these presents do make, execute and appoint, WiUiam Brown residing at Street, Borough of Manhattan, City, County and State of New York, my true and lawful 1210 Bradbury's lawyers' manual Revocation of Power of Attorney attorney for me and in my name to lease the said real property herein before described, to such person or persons and for such a term of years or for life or. lives, and at and under such yearly and other rents as he shall think fit or otherwise to sell and dis- pose of the same absolutely in fee simple, for such price or sum of money, and to such person or persons as he shall think fit and convenient ; and also for me, and in my name and as my act and deed to sign; seal and execute and deliver such deeds and con- veyances for the leasing or selling thereof, or of any part thereof with such clauses, covenants and agreements to be therein contained as my said attorney shall think fit and expedient, hereby ratifying and confirming all such leases, deeds, conveyances, bargains and sales which shall at any time hereafter be made by my said attorney, touching or con- cerning the premises. In witnesses whereof I have hereunto set my hand and seal, this day of , 19 . John Jones. Sealed and delivered in the presence of : James Franklin, John Brown. (Acknowledgment.) FORM NO. 652 Revocation of Power of Attorney Know all men by these presents, that, whereas I, John Jones did in my letter of attorney, dated this day of , 19 , constitute and appoint William Brown my true and lawful attorney for me and in my name to {here insert power given in the original power of attorney) as by my said letter of attorney appears; Now, therefore I the said John Jones by these presents do hereby revoke, countermand, annul, and make void said letter of attorney dated this day of , 19 , and all power therein and thereby, or in POWER OF ATTORNEY 1211 Revocation of Power of Attorney any manner given, or intended to be given to the said William Brown. In witness whereof I have hereunto set my hand and seal this day of ,19 . , John Jones. Sealed and delivered in the presence of: James Farrel, John Brown. (Acknowledgment.) CHAPTER LIX GENERAL RELEASES FORMS NO. PAGE 653. General Release 1212 FORM NO. 653 General Release To ALL TO WHOM THESE PRESENTS SHALL COME or may Con- cern, greeting; know ye, that I, A. B., for and in consideration of the sum of dollars, lawful money of the United States of America, to me in hand paid by C. D., the receipt whereof is hereby acknowledged, have remised, released and forever discharged and by these presents do for myself, my heirs, executors and administrators, remise, release and forever discharge the said C. D., his heirs, executors and administra- tors, of all and from all, and all manner of action and actions, cause and causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, con- tracts, controversies, agreements, promises, variances, tres- passes, damages, judgments, extents, executions, claims and demands whatsoever in law or in equity, which against said C. D. I ever had, now have or which I or my heirs, executors or administrators, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents. In witness whereof, I have hereunto set my hand and seal the day of , 19 . Sealed and delivered in the presence of A. B. (L. S.) 1212 GENERAL RELEASES 1213 General Release State of New York ) County of New York J '-■ On the day of , 19 , before me came A. B., to me known to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same. Edward Edwards, Notary Public, New York County. CHAPTER LX PARTNERSHIPS FORMS NO. PAGE KO. PAGE 654. Articles of copartnership .... 1214 659. Designation by the clerk of 655. Agreement to continue part- the newspaper in which the nership endorsed on the publication is to be made. .1220 original articles 1217 660. Notice to be published 1220 656. Dissolution of partnership 661. Affidavit of publication of endorsed on original arti- notice of special partner- cles 1217 ship 1221 657. Articles of limited copartner- 662. Certificate of continuation of ship . 1218 partnership in partnership 658. Affidavit to be filed with name when one of the certificate 1219 partners withdraws 1222 FORM NO. 654 Articles of Co-Partnership This agreement made this day of , 19 , between A. B., of the Borough of Manhattan, City, County and State of New York; and C. D., of the Borough of Brooklyn, City, County and State of New York. WITNESSETH: In consideration of one dollar by each of the parties hereto in hand paid to the other, the receipt whereof is hereby severally acknowledged, and the mutual and reciprocal considerations herein expressed the parties hereto agree as follows : I. To form a co-partnership under the firm name of B. & D., to conduct the business of {here specify the kind of business it is proposed to conduct) . II. Said partnership is to begin on the day of ,19 , and continue for the term of years, that is to say, until the day of , 19 . III. The said A. B., agrees to contribute the sum of dollars to the said partnership business. The said C. D., 1214 PARTNERSHIPS 1215 Articles of Co-Partnership agrees to contribute the sum of dollars to the said partnership business and the said sums shall be paid on or be- fore the day of , 19 , and shall be de- posited in such bank or banks as may be agreed upon, to the credit of the partnership, and in the partnership name, and should it be found necessary to contribute additional capital for the purpose of the said partnership business, each of the parties agree to contribute in the same proportion as above as and when such additional funds shall be needed, until the further sum of dollars has been contributed to such partnership funds. IV. The profits from said business shall be distributed in the following proportions: To said A. B., per centum and to the said CD., per centum. V. Accurate books of account of all the business transac- tions and affairs of said partnership shall be kept, and said books shall be audited by an independent auditor at least once a year, the first audit to be one year from the date of this partnership agreement, unless both parties consent that said audit shall be omitted, and the expense of said audit whenever held shall be paid from the partnership funds. VI. The losses of said partnership shall be borne in the fol- lowing proportions: A. B. shall bear per centmn of said losses and C. D., shall bear per centum of said losses. VII. Upon discontinuance of the partnership business, the assets over and above the amount necessary_to pay the debts shall be distributed in the following proportions: A. B., per centum of said assets and CD., per centum of said assets. VIII. Should either of the parties hereto die, the partnership shall be thereby dissolved and the partnership assets shall be distributed in accordance with the provisions hereof. IX. Each of the parties hereto agrees to give his sole and individual attention to the partnership business and not to engage in any other business whatsoever, without the consent of the other expressed in writing, during the continuance of this agreement. 1216 Bradbury's lawyers' manual Articles of Co-Partnership X. Each of the parties hereto agrees that he will not sign or endorse any promissory note whereby he becomes obligated to pay the debt of another, nor will he become surety, guarantor or otherwise pledge his credit, or become obligated by reason of a default of another or to pay the debt of another. XI. Checks on the bank account of the partnership may be signed by either partner, but only for partnership obligations, and neither party shall sign checks to withdraw money for any purpose except to pay a partnership debt or obligation. XII. No promissory note shall be made by either party in the partnership name without the consent of the other. XIII. In case of dissolution of the partnership by death and the survivor desires to continue the business, the value of the good will of said business shall be determined by appraisal, said surviving partner appointing one appraiser and the repre- sentatives of the deceased appointing a second appraiser and the two appraisers shall appoint a third and the decision of the three appraisers as to the value of the good wiU shall be absolutely binding on this surviving partner and the represen- tatives of the deceased partner. XIV. Both of the parties hereto agree that for the first year of the partnership they will not draw a sum exceeding dollars each week, each for their personal accounts from the partnership assets; and during the second year of such partnership, both partners agree they will not draw a stun exceeding dollars a week, each from the partner- ship assets, unless on consent of both parties to this agreement. In witness whereof the parties hereto have hereunto set their hands and seals on the date of this instrument first above written. Sealed and delivered in the presence of A. B. C. D. State of New York County of New York ss: On this day of , 19 , before me per- sonally appeared A. B. and C D., to me known and known to PARTNERSHIPS 1217 Dissolution of Partnership Endorsed on Original Articles me to be the individuals described in and who executed the foregoing instrument, and they severally acknowledged to me that they executed the same. {Signature and title of officer,) FORM NO. 655 Agreement to Continue Partnership Endorsed on the Original Articles It is hereby agreed that the partnership within mentioned shall be continued on the same conditions, limitations and restrictions for the further term of years from and after the day of , 19 . In witness whereof we have hereunto set our hands and seals on the day of , 19 . A. B. (seal) {Add acknowledgment as in original articles.) C. D. (seal) FORM NO. 656 Dissolution of Partnership Endorsed on Original Articles By mutual consent of the within named parties thq within partnership is hereby dissolved and either one of the partners is authorized to receive money and compound the claims due the partnership and give full receipts and acquit- tances for the same. An accounting shall be immediately made by G. H., and no action by either of the parties hereto shall be begun for an accounting until ten days after the accounts of said G. H., are rendered and submitted for examination to the parties hereto. In witness whereof, we have hereunto set our hands and seals this day of , 19 . A. B. (seal) C. D. (seal) {Add acknowledgment as in original articles.) 1218 Bradbury's lawyers' manual Articles of Limited Copartnership FORM NO. 657 Articles of Limited Copartnership (Partnership Law, § 30) ' We, the undersigned, being desirous of forming a limited copartnership, pursuant to the Laws of the State of New York, do hereby certify I. The name of the firm under which said co-partnership is to be conducted is {State the copartnership name) and the principal business of said firm is to be located in the County of New York. II. The general nature of the business intended to be trans- acted by said copartnership is as follows: {State the nature of the business). III. The names of the general partners interested in said business are as follows : {State the names and places of residence of all the general partners), and that all of said general partners are of full age. IV. The names of the special partners are as follows: ^ {State the full names and residences of the special partners), all of whom are of full age. V. The amount of capital which the said A. B., one of the special partners has contributed ^ to the common stock of the said copartnership is dollars. ' The statute is remedial and substantial compliance with its essential require- ments is sufficient. Patterson v. Youngs, 154 App. Div. 536; 139 Supp. 670; White V. Eiseman, 134 N. Y. 101; Fifth Ave. Bank v. Colgate, 120 N. Y. 381. ' The name of a special partnership must contain only the names of the general partners and not the name of any special pai-tner, for if the name of such special partner is used in the firm name such special partner becomes liable as a general partner. Partnership Law, § 35. ' A contribution of a limited partner must be paid in cash. First National Bank of Jersey City v. Huber, 75 Hun, 80; 26 Supp. 961. The requirement that the amount shall be paid in cash by the special partners is not complied with by turning over notes by a special partner to a limited part- nership. Kohler v. Ldndenmeyr, 58 Hun, 513; 12 Supp. 738; rev'd in 129 N. Y. 498, on another point. But a payment in a certified check is regarded as cash. PARTNERSHIPS 1219 Affidavit to be Filed with Certificate VI. The amount of capital which the said CD., one of the special partners has contributed to the common stock of said copartnership is dollars. VII. The time at which said copartnership is to begin is the day of , 19 , and the time at which said copartnership is to end ^ is the day of , 19 . Dated, the day of , 19 . (Signature and seals of all the general and special partners) . (Acknowledgments by all the general arid special partners). FORM NO. 658 Affidavit to be Filed with Certificate ^ (.Partnership Law, § 31) State of New York ) } SS ' County of New York ) G. H., being duly sworn, deposes and says that he is one of the general partners mentioned in the annexed certificate and that the sums herein specified to have been contributed by A. B. and CD., the special partners herein named to the common Waters v. Hams, 60 Super. Ct. (28 J. & S.) 192; 17 Supp. 370; Metropolitan National Bank v. Palmer, 9 Supp. 239. PajTnent by post dated checks is not a payment in cash and the affidavit being false, the said partner is liable as a general partner. Durant v. Ahendroth, 69 N. Y. 148. ' A special partnership may be dissolved before the time specified for its ter- mination in the certificate of formation, renewal or continuance, but the dissolu- tion does not take effect until a notice of the dissolution has been filed with a Clerk of the county in which the original certificate is filed, and published at least once in each of four successive weeks in a newspaper published in each county where the partnership has a place of business. Partnership Law, § 42. '^ Every statement contained in the affidavit must be true at the time it is filed. White V. Eiseman, 134 N. Y. 101. The effect of a false statement in the affidavit is to render the special partners liable as general partners. Sharp v. Hutchinson, 100 N. Y. 533; Fifth Avenue Bank v. Colgate, 120 N. Y. 381; Van Ingen v. Whilman, 62 N. Y. 513; see also Hartford National Bank v. Beinecke, 80 App. Div. 546; 80 Supp. 803. 1220 BRADBURY'S LAWYERS' MANUAL Notice to be Published fund, to wit, the sum of one thousand dollars by A. B. and the ■ sum of five thousand dollars by C. D., have been actually and in good faith paid in in cash by them respectively. Sworn to before me this day of , 19 . G. H. (Signature and title of offlcer). FORM NO. 659 Designation by the Clerk of the Newspaper in which the Publication is to be Made Pursuant to § 32 of the Partnership Law the undersigned, as the Clerk of the County of , hereby designates the , a newspaper published in the City of , and the , a newspaper published in the City of , in which notice of the articles of limited co- partnership between A. B., C. D., E. F. and G. H. shall be published. Dated the day of , 19 . I. J., Clerk of County. FORM NO. 660 Notice to be Published ^ (Partnership Law, § 32) Notice is hereby given that A. B., who resides in Albany, C. D., who resides in Poughkeepsie, E. F., who resides at No. ' Under § 32 of the Partnership Law, immediately after the filing of the certifi- cate, a copy of the same, or a notice containing the substance thereof, shall be published once in each week for six successive weeks in two newspapers of the county in which such original certificate is filed, to be designated by the County Clerk, one of which newspapers shall be a newspaper published in the City or town in which the principal place of business is intended to be located, if a news- paper be published therein, or if no newspaper is pubhshed therein in the news- paper nearest thereto and proof of such publication by afifidavit of the printer or publisher of each of such newspapers must be filed with the original certificate. PARTNERSHIPS 1221 Affidavit of Publication of Notice ot Special Partnership , Street, in the Borough of Manhattan, City of New York, and G. H., who resides at No. , Street, in the Borough of Brooklyn, City of New York, all of the State of New York, have formed a limited partnership to be conducted under the partnership name of B. & D., in accordance with the provisions of the Partnership Law of New York, in the business of buying and selling dry-goods and groceries, crockery and hardware, as country merchants at Poughkeepsie, Dutchess County, New York, in which the above-named persons are all the partners who are interested therein, that is, the said A. B. and CD. are the general part- ners and of full age and the said E. F. and G. H. are the special partners and of full age and that the said E. F. has contributed and paid in cash the sum of one thousand dollars and the said G. H. has contributed and paid in cash the simi of five thousand dollars as capital towards the common stock and that the said partnership is to conmience on the day of , 19 , and is to terminate on the day of , 19 . Dated the day of , 19 . {Signature of all the partners, both general and special.) FORM NO. 661 Affidavit of Publication of Notice of Special Partnership State of New York County of New York ss: K. L., being duly sworn, deposes and' says that he is the printer of the , a newspaper pubhshed in the- City of , County of , and that the notice of the terms of a hmited partnership between the persons therein named, a copy of which is annexed to this affidavit, was pubhshed in the said , a newspaper published in said city and county once a week for six weeks on the following 1222 BRADBURY'S LAWYERS' MANUAL Certificate of Continuation of Partnership in Partnership Name days: {Here specify the particular days on which the notice was published.) Sworn to before me, this 1 K. L. day of , 19 . j {Signature and title of officer). FORM NO. 662 Certificate of Continuatioii of Partnership in Partnership Name When One of the Partners Withdraws ^ (Partnership Law, § 20, subd. 1, and Id., § 21) A. B., residing at No. , Street, in the Borough of Manhattan, City of New York, and C. D., residing at No. , Street, in the Borough of Brooklyn, City of New York, hereby certify that they will, from the date of this certificate, continue the business of {State the nature of the business) heretofore carried on at No. , Street, in the Borough of Manhattan, City and State of New York, by A. B., C. D. and E. F., under the name of B. D. and F. and that such business will be continued at No. , Street, in the Borough of Manhattan, City and State of New York, and we further certify that said business of B. D, and F. has been conducted in this state more than three years and said partnership has had business relations with foreign coun- tries and that said E. F. withdrew from said business on the day of , 19 , and assigned his interest therein to the above-named A. B. and C. D., together with the right to continue such business in said name of B. D. and F. Witness our hands and seals this day of , 19 . A. B. (Seal). ^_^____ C. D. (Seal). 1 This certificate must first be filed in the office of the County Clerk and then it must be published once in each week for four consecutive weeks in a newspaper of the city or town in which the principal place of business is located, or if none be published in said city or town, in the newspaper nearest thereto. The fee on fihng the certificate with the County Clerk is one dollar for two persons and ten cents additional for every person beyond two. Partnership Law, § 21. PARTNERSHIPS 1223 Certificate of Continuation of Partnership in Partnership Name State of New York County of New York ss: On this day of , 19 , before me per- sonally came A. B. and C. D., to me known and known to me to be the individuals described in and who executed the fore- going instrument and they severally acknowledged to me that they executed the same. {Signature and title of officer). CHAPTER LXI CORPORATIONS FORMS NO. PAGE NO. PAGE 663. Certificate of incorporation 669. Certificate as to payment in of business corporation. . .1224 of amount with which the 664. Form of By-Laws 1230 corporation is to begin busi- 665. Certificate of inspectors of ness 1238 election 1235 670. Proxy 1239 666. Oathof inspectors of election. 1236 671. Certificate of incorporation 667. Annual report 1236 under Membership Corpo- 668. Certificate as to payment of rations Law 1239 capital stock 1237 FORM NO. 663 Certificate of Incorporation of Business Corporation ^ (Bus. Corp. L., § 2) Certificate of Incorporation of the Company, Inc. We, the undersigned, desiring to form a corporation, pur- suant to the provisions of the Business Corporations Law, 1 Note on Proceedings to Incorporate Business Corporation The form of certificate of incorporation in the text contains many provisions which are usually not inserted in all such certificates. The practitioner may select such of these provisions as may be important for a particular corporation. It is the usual and better practice to have two duplicate original certificates of incorporation executed. This is because one must be filed in the office of the Secretary of State and another in the office of the Clerk of the County wherein is situated the principal place of business of the corporation. If a duplicate original of the certificate is not executed it will be necessary to get a certified copy of the original filed in the office of the Secretary of State for filing in the office of the County Clerk. If, however, duplicate originals are executed it is not necessary to have a certified copy for filing in the office of the County Clerk as hereinafter set forth. One duplicate original is sent to the Secretary of State with a certified check or postoffice money order for the amount of the fees of the Secretary of State in 1224 CORPORATIONS 1225 Certificate of Incorporation of Business Corporation all being of full age and two-thirds being citizens of the United States, and at least one a resident of the State of New York, DO HEREBY CERTIFY: First: That the name of the proposed corporation is the Company, Inc. Second: The purposes for which this corporation is to be formed are: (a) To receive, procure, collect, gather, remove, and trans- port garbage, ashes, refuse, sewage, sweepings, waste matter of all kinds, and other materials, for compensation or otherwise; to sort the same, and to sell the whole or any part thereof, or to convert the whole or any part thereof, either alone or in connection with other materials, into valuable or salable prod- ucts or articles, or to otherwise dispose of the same. (b) To fill in, grade, drain, or otherwise alter or improve land. (c) To contract with municipal or other corporations, or other parties, to receive, gather, collect, remove, or transport garbage, ashes, refuse, sewage, sweepings, waste matter, and materials of all kinds. (d) To contract with municipal or other corporations, or filing and recording the certificate. The filing fee is $10 in all cases and in addi- tion 15 cents a folio for recording. Executive Law, § 26. If it is desired to have a certified copy returned by the Secretary of State there should be added for this certified copy one dollar and 15 cents a foUo for each folio in the certificate. Id. A copy should also be enclosed for certification by the Secretary of State. It is usually good practice to secure such a certified copy when the certificate is first filed as it may be found useful in the subsequent transactions of the corporation. At the same time the certificate is forwarded to the Secretary of State at Albany there should be sent to the State Treasurer at Albany, in a separate envelope, a certified cheek or a postoffice money order for the organization tax. This is one- twentieth of one per cent on the amount of the capital stock of the corporation, but in no event less than five dollars. That is, for every corporation with a capital stock between $500 and $10,000 the organization tax is $5. For any sum over $10,000 the tax is one-twentieth of one per cent, or, in other words, fifty cents for each $1,000 of capital stock. Tax Law, § 180. This sum should be sent to the State Treasurer with a letter stating that it is for the organization fee of a corporation, giving its name, the certificate of which has been sent to the Ssoretary of State. The Secretary of State and the State Treasurer will make separate replies to these letters and upon receipt of these replies the other duplicate original of the certificate of incorporation shouli be filed in the office of the County Clerk of 1226 Bradbury's lawyers' manual Certificate of Incorporation of Business Corporation other parties, to supply the materials before mentioned, or any of them, or any product thereof; or to apply them, or any part or product thereof, to land, to fertilize it, or to fill it in, or to grade, or otherwise improve it. (e) To acquire land for the purpose of fertilizing, filling in, grading, or otherwise improving it; and to hold, lease, mortgage, or dispose of it; and to acquire, hold, sell, or otherwise deal in real estate for any purpose. (f) To apply for, purchase, or otherwise acquire; to hold, own, use, operate; to sell, assign, or otherwise dispose of; to grant licenses in respect of, or otherwise turn to account, any and all inventions, improvements, or processes used in con- nection with, or secured under letters-patent of the United States, or of other countries, or otherwise; and to purchase, sell, use, register, or otherwise deal in any trade-mark, trade- name, good-will, or other right or equity pertaining to the business of the company. (g) To engage in any business incident to the objects above set forth, or which may appear to the company capable of being the County wherein the principal place of business of the corporation is to be located, as specified in the certificate of incorporation, and with the certificate filed in the County Clerk's office must be filed the receipt from the State Treasurer for the payment of the organization tax. The above proceedings being completed, as suggested, the corporation is thereby created and the next step is to hold the first meeting of directors for the purpose of electing officers and transacting any other business which may come before the directors, including the making of By-Laws. The first meeting of the directors may be and usually is held by all the directors signing a waiver of notice of the meeting, which waiver should be written in the minute book. At this point also it is necessary to secure the following for the completion of the organization: A book of stock certificates; a seal; a minute book (or a minute book for the stockholders and another for the directors, although the same minute book is frequently used for both) ; a stock ledger. The corporation is now ready to begin business. The next step is to make the certificate of the payment in of the capital stock as to which see Business Corporations Law, § 5, and Form No. 668, in this work. In this same connection there should also be made the certificate of the payment in of the amount with which the corporation is to begin business in accordance with Business Corporations Law, § 3, and in accordance with Form No. 669 in this work. Form No. 669 .should be executed and filed with the Secretary of State as soon as possible after the organization is completed. CORPORATIONS 1227 Certificate of Incorporation of Business Corporation carried on advantageously in connection with its general busi- ness or for experimental purposes, or to supply materials for the operations of the company, or to minister to the comforts or conveniences of its employees or customers, or to dispose of its surplus products, or to create a market for its products, or to provide for the convenient transportation of its product or materials, or directly or indirectly to aid or encourage any of the forms of enterprise above enumerated, or to utilize any of the resources or assets of the corporation; to temporarily use, operate, or lease any works, constructed, altered, or re- paired by this company, which are not yet completed, or which are not yet fully paid for by the persons for wtom they were constructed, altered, or repaired, or to whom they may be intended to be sold. (h) To purchase, manufacture, lease, rent, sell, and use any tug, scow, lighter, derrick, vessel, engine, car, wagon, tools, or personal property of any description that to the company may seem convenient or necessary for the carrying on of its business. (i) To acquire, use, and dispose of any real property, and to erect any building, in any of the States or Territories of the United States, or in the District of Colmnbia, or in any foreign country, that may to the company seem necessary or conven- ient for the carrying on of its business, or for the promotion of any object for which this company is formed. (k) To borrow and raise money on such terms as the com- pany may determine, and to secure the repayment of any money borrowed or raised, together with any interest or bonus, payable in respect thereto, by way of a share of profits or a fixed interest, on such terms and conditions as the company may determine. (1) To purchase, acquire, subscribe for, hold, sell, assign, or otherwise deal in stock, bonds, debentures, or other obli- gations of other corporations, both domestic and foreign; and to issue in exchange therefor, the stock, bonds, or other obli- gations of this company; and to amalgamate or consolidate with such other companies. 1228 Certificate of Incorporation of Business Corporation (m) To pay all or any part of the expenses of and in con- nection with the incorporation, promotion, and establishment of other companies, either domestic or foreign; to obtain sub- scriptions to the capital stock thereof, and to enter into any contract or contracts respecting the same. (n) To issue shares, wholly or partly paid up, bonds, or other securities, to any director or officer of the company, or any other person, as the consideration for any property which may be acquired by, or any service or work which may be, or has been rendered to or done for the benefit of the cor- poration. (o) To distribute in kind, all or any of the property of the company among the members by way of dividends or otherwise. Third. The amount of the capital stock is dollars. {Specify what portion, if any, is to he preferred stock, and give the preference which shall appertain to it.) Fourth: The stock shall be divided into shares of common stock, of dollars each, and the amount of capital with which said corporation will begin business will be dollars. FirTH : The principal business office of the corporation is to be located in New York city, in the county of New York, in the State of New York. Sixth. Its duration is to be fifty years (perpetual). Seventh. The number of its directors is to be five (5). (Not less than three.) Eighth. The following provisions shall be binding on the corporation, its directors, officers, and stockholders, in the regulation of the business and the conduct thereof:' (a) Any bond, debenture, promissory note, or other security issued by the company, may be made in such manner, and, so far as the law permits, may contain such powers, priwleges, restrictions, and conditions as the directors, or the officer or officers duly authorized by the directors, think expedient. (b) The board of directors shall have power to fix the re- ' Any limitation on the powers of the officers or regulation concerning the con- duct of the business may be inserted here. CORPORATIONS 1229 Certificate of Incorporation of Business Corporation muneration to be paid to the officers of the corporation, and also for their own services {or, but the stockholders shall fix the remuneration to be paid to the directors). (c) The directors may fix the remuneration to be paid to the promoter or the promoters of this company, both for their expenses and their services, and may determine whether pay- ment therefor shall be made in money, property, stock, bonds, or other obligations of the corporation. (d) The directors shall cause true accounts to be kept of the company's business, assets, and liabilities, as provided in the by-laws. (e) The directors shall, from time to time, determine whether in any particular case or class of cases, or generally, and at what time and places, and under what conditions or regulations, the accounts and books of the corporation, or any of them, shall be open to the inspection of stockholders; and no stock- holder shall have any right to inspect any account or book or document of the corporation, except as conferred by statute, or authorized by the directors, or by resolution of the stock- holders in general meeting. (f ) Once at least in every year the accounts of the corporation shall be examined, and the correctness of the statement and balance sheet ascertained by one or more auditor or auditors. The first auditors shall be appointed by the directors; sub- sequent auditors shall be appointed each year by the corpora- tion at the general meeting of stockholders. No stockholder, director, or officer of the corporation, or other person who is interested in any transaction of the corporation, shall be eligible as an auditor. The remuneration of the auditor or auditors shall be fixed by the stockholders at the annual meet- ing. Ninth. The names and post-office addresses of the directors for the first year are as follows: Names. Post-office addresses. 1230 Bradbury's lawyers' manual Form of By-Laws Tenth. The names and post-office addresses of the sub- scribers, and the number of shares of stock which each agrees to take in the corporation, are as follows: Names. Addresses. No. of shares subscribed. ' In witness whereof, we have made, signed, and acknowledged this certificate in dupficate, this day of , A. D., one thousand nine hundred and {Signatures of those making the certificate.) State of New York County of New York ss: On this day of , 19 , A. D., one thousand nine hundred , before me personally came , , , and , to me personally known to be the persons described in and who made and signed the fore- going certificate and severally duly acknowledged that they had made, signed, and executed the same for the uses and pur- poses therein mentioned. {Signature and title of officer) . FORM NO. 664 Form of By-Laws By-Laws of the Company, Adopted at a Meeting OF THE Stockholders (Directors) Thereof at , ON THE day of . , 19 . Article I. The annual meeting of the stockholders of this corporation shall be held at the offices of the company in the city of , N. Y., on the second Wednesday of , in each year, at ten o'clock in the forenoon; at which meeting, the annual election of directors of the company shall be held, and such other business shall be transacted as may lawfully CORPORATIONS 1 23 1 Form of By-Laws come before the meeting. Written or printed notices of each annual meeting shall be mailed, postage prepaid, to each stock- holder, whose name appears on the stock-book of the corpora- tion, directed to him at the address which appears in said stock- book, at least ten days prior to such meeting; and a certificate of the giving of such notice shall be entered by the secretary upon the records of the meeting. Article II. A special meeting of the stockholders may be called at any time by the board of directors, and it shall be the duty of the directors to call a special meeting of the stock- holders whenever requested so to do by stockholders owning not less than ten per cent, of the issued stock, such request to be in writing, and to be signed by the stockliolders making it. Notices of such special meeting shall be given at least five days prior thereto, in the same manner as prescribed for the giving of notice of annual meetings of stockholders. A notice for a special meeting shall state the purpose or purposes for which the meeting is called, and no business, except that stated in the notice, shall be transacted thereat. Article III. No stockholder shall be allowed to vote in person, or by proxy, at any meeting of stockholders, unless his or her name has appeared upon the transfer-books of the company, as a stockholder, for ten days inamediately preceding such meeting. Article IV. In the absence of a quorum at the annual meeting of stockholders, those present may adjourn the meeting, from time to time, until a quorum is secured; and if, for any other reason than the absence of a quorum, the annual meeting of stockholders is not held at the time prescribed in article I of these by-laws, such annual meeting may be held at any time, upon a notice of five days, given to all the stockholders, in the manner prescribed for giving notice of the annual meeting. Article V. Stockholders, holding a majority of the capital stock of the company, appearing in person or by proxy, shall constitute a quorum at stockholders' meetings. Each stock- holder shall be entitled to as many votes as he holds shares of stock, upon which all calls or assessments have been fully 1232 Bradbury's lawyers' manual Form of By-Laws paid. Representation by proxy, duly appointed in writing, shall be allowed, provided such proxy is filed with the secretary, at or prior to the meeting; and such proxy shall be good only for the meeting at which it is presented, unless the proxy itself provides otherwise, in which case the terms thereof shall pre- vail as to its duration. The president, or, in the case of his absence or incapacity, the vice-president, shall preside at all meetings of stockholders of the company, or, in the absence or disability of both the president and vice-president, the meeting shall choose its own presiding officer; and the secretary of the corporation, or, in his absence, a secretary pro tern, to be chosen by the meeting, shall record all proceedings of such meeting. All questions arising at stockholders' meetings shall be decided by a viva voce vote, except the election of directors; provided, that any stockholder may demand a stock vote on any ques- tion, and all questions where a stock vote is taken, shall be determined by a majority in interest of the stock present; di- rectors shall, in all cases, be elected by a stock vote. Article VI. At the annual meeting of stockholders, the follow- ing shall be the order of business, viz. : 1. Calling the roll. 2. Proof of proper notice of meeting. 3. Report of president. 4. Report of treasurer. 5. Report of secretary. 6. Reports of committees; standing; special, by seniority. 7. Report of auditor. 8. Election of directors. 9. Miscellaneous business. Article VII. The board of directors shall consist of five mem- bers, each of whom shall be a holder of at least one share of the stock of the corporation, recorded in his own name (or, a director need not be a stockholder in the corporation). A vacancy in the board may be filled, for the balance of the term, by a majority vote of the remaining members of the board. Article VIIL The officers of the company shall be a president, CORPORATIONS 1233 Form of By-Laws a vice-president, a secretary, and a treasurer, who shall- be elected or app'ointed by the board of directors as soon after the annual meeting of stockholders as practicable, and they shall hold their offices for one year and until their successors are chosen and shall have duly qualified. Vacancies may be filled at any regular or special meeting of the board of directors. Article IX. The president shall have general executive management of the corporation, and it shall be his duty to preside at all meetings of the stockholders and of the board of directors. He shall execute and acknowledge all written in- struments, conveying or affecting any real estate or other property of the company. He shall also sign all contracts which are made by the corporation and reduced to writing, and all bonds, promissory notes, and other obligations of the cor- poration. He shall present, at each annual meeting of the stockholders, detailed reports of the transactions of the board of directors, and of the condition of the affairs of the company cit a period not more than thirty d9,ys prior to such annual 'meeting. Article X. The secretary shall record the proceedings of the meetings of the stockholders and directors, and shall keep such records in a book provided for that purpose. He shall attest all instruments in writing, conveying any real estate, or other property, of the company, and all certificates of stock issued by the company, arid affix the corporate seal thereto, and shall attest all other sealed instruments of the company; also all bonds, promissory notes, and other obligations of the corpora- tion. He shall be the custodian of the corporate seal. Article XL The treasurer shall give bond for the faithful performance of the duties of his office in such sum as the board of directors may require. He shall receive, and safely keep, all of the income and moneys of the corporation, and dispose of the same as directed by the board of directors, and shall keep full and accurate books of account of all business of the company, which books shall, at all times, be accessible to any member of the board of directors. He shall be the custodian of all books, notes, and papers of the company, and shall make 1234 BRADBURY'S LAWYERS' MANUAL Form of By-Laws a complete settlement of his accounts annually, prior to the meeting of the stockholders, and as much oftener as may be required by the board of directors. Article XII. The board of directors may appoint and fix the compensation of all agents and employees of the company, and may make and adopt such rules not inconsistent with the laws of the State of New York, the charter of this corporation, or these by-laws, as it may deem necessary for the government of the affairs of the corporation. They shall have power to declare dividends out of the surplus profits whenever they shall deem it expedient. Article XIII. The books and affairs of the company shall be examined at least once in each year by an auditor or auditors, and such auditor or auditors shall make his or their report at the annual meeting of the stockholders, which report shall contain a statement of the assets and liabilities of the corpora- tion, together with a statement of the business transacted by the corporation during the last year. No stockholder or officer or any person interested in any transaction of the corporation, shall be eligible as an auditor. The auditor or auditors, for the first year, shall be appointed by the board of directors, and sub- sequent auditors shall be appointed by the stockholders at the annual meeting, and the compensation of the auditor or audi- tors shall be fixed by the stockholders at the annual meeting. Article XIV. These by-laws may be amended at the annual meeting of the stockholders, or at any special meeting thereof, where the notice for any such meeting specified that such amendments would be proposed; but, in either case, a two- thirds vote of all the shares represented at such meeting, shall be necessary to pass such amendment. CORPORATIONS 1235 Certificate of Inspectors of Election FORM NO. 665 Certificate of Inspectors of Election State of New York, County of ss: We, the inspectors of election of , duly ap- pointed to act at the annual meeting of the stockholders of such corporation, do hereby certify as follows, to-wit: Such meeting was held at the office of the company on the day of , 19 ) at o'clock, in the noon of that day. Before entering upon the discharge of our duties, we sub- scribed and took the required oath, which is hereto annexed, marked "Ex. A," and hereby made a part of this certificate. At such meeting, the election of directors, to manage the affairs for the ensuing year, was held. It was found, upon a canvass of the votes cast at such elec- tion, that votes, representing shares of the capital stock, had been cast, as follows: For , of , votes ,of ,of ,of ,of ,of Whereupon the said , , , , and , were declared by us duly elected directors of such corporation for the ensuing year. In witness whereof, we have signed and acknowledged this certificate, this day of , 19 . (Jurat.) Inspectors. (Acknowledgment.) 1236 Bradbury's lawyers' manual Annual Report FORM NO. 666 Oath of Inspectors of Election (Stock Corp. L., § 31) State op New York County of New York ss: , and , and ' , the inspectors duly appointed to act as such, at the election of directors at the annual meeting of the stockholders of , being severally duly sworn, does each for himself say, that he will faithfully execute the duties of inspector at such meeting with strict impartiality, and according to the best of his ability. Sworn to before me this day of , 19 FORM NO. 667 Annual Report (Stock Corp. L., § 34) State of New York Albany City and County ss: The Jones Manufacturing Company, of Albany, N. Y., hereby makes its annual report as of the 1st day of January, 19 . The capital stock of said company is $ , all of which is issued {if not all issued, state the proportion adiially issued) . The debts of said corporation amount to dollars {or the debts of said corporation do not exceed dollars) . The assets of said corporation equal at least the sum of dollars. CORPORATIONS 123< Certificate as to Payment of Capital Stock The names and address of all the officers and directors of said corporation are as follows: (Insert names and addresses). (If a foreign corporation) : The person designated to receive service of process is A. B. whose address is No. , Street, City of Albany, N. Y. In witness whereof, I have made and signed this report, the day of , 19 . Richard Roe; President. FORM NO. 668 Certificate as to Payment of Capital Stock (Bus. Corp. L., § 5) We, the president and a majority of the directors of the Jones Manufacturing Company, a corporation duly organized under the "Business Corporations Law" of New York, and located and doing business at Albany, N. Y., hereby certify, that the whole amount of capital stock of said corporation has been paid in (or that one-half of the capital stock of the said corporation was paid in on the day of ,19 ). Dated, Albany, , 19 . John Jones, President. Richard Roe, John Doe, Thomas Roe, Directors. State or New York County of ss. John Jones, Richard Roe, John Doe, and Thomas Roe, being severally duly sworn, does each for himself say, that the said John Jones is the president of the Jones Manufacturing Com- pany, and the said Richard Roe, John Doe, and Thomas Roe, are directors of said company, and a majority thereof; that they 1238 Certificate as to Payment Amount with which Corporation Begins Business have severally read the foregoing certificate, subscribed bj' them, and know the contents thereof, and that the same is true. Sworn to before me this 1 John Jones, day of , 19 . J President. {Signature and title of officer.) Richard Roe, John Doe, Thomas Roe, [Add Acknowledgment.] Directors. FORM NO. 669 Certificate as to Payment in of Amount with which the Corporation is to Begin Business ' (Bus. Corp. L., § 3) State of New York 1 Albany City and County J John Jones, Richard Roe, and John Doe, being duly and severally sworn, each for himself, says, that he is a director of the Jones Manufacturing Company, and one of those named in the annexed certificate of incorporation; that the sum of dollars, the amount of capital specified in the certificate as to amount of capital with which it wiU begin business, has been paid in, in money {or, property) . John Jones, Sworn to before me, this ) Richard Roe, day of May, 19 . J John Doe. Sarah Doe, Notary Public, Albany County, Albany, N. Y. CORPORATIONS 1239 Certificate of Incorporation under Membership Corporations Law FORM NO. 670 Proxy (Gen. Corp. L., § 23) The undersigned, , stockholder in , hereby appoint , and , and each of them separately, , attorney and proxy for , and in name, , to vote for directors of said corporation, and inspectors of election at the next annual election for the said officers, at whatever time and place such election may be held, and also at any subsequent election for said officers, or any of them, if any, until this proxy shall be revoked, and for , and in name, , to act at such election and elections, and in any meeting of the stockholders of said corporation, or proceedings which may take place thereat, or prior thereto, as aforesaid, as fully as could do if personally present, with full power of substitution and revocation. Dated, , 19 . (seal.) (The statute does not require proxies to be acknowledged.) FORM NO. 671 Certificate of Incorporation under Membership Corporations Law ^ (Mem. Corp. L., § 41) We, the undersigned (not less than five persons), all being of full age, at least two-thirds of whom are citizens of the United ' Note on Organization of Membership Corporation The foregoing certificate should be executed in duplicate, one copy of which is to be filed in the office of the Secretary of State and the other in the office of the Clerk of the County in which the principal office of the corporation is to be located. The reason for executing duplicate originals is that unless this is done it will be necessary to secure a certified copy from the Secretary of State to file in the office of the County Clerk and if duplicate originals are executed it is not 1240 Bradbury's lawyers' manual Certificate of Incorporation under Membership Corporations Law States, and one of whom is a resident of the State of New York, desiring to form a membership corporation, pursuant to Article II of the Membership Corporations Law, do hereby certify as follows : First: The name of the proposed corporation is (state corpo- rate name) . necessary to secure a certified copy, but one of such dupUcate originals may be filed in the office of the County Clerk without certification. After the certificates are executed in accordance with the form in the text, they should be presented to a Justice of the Supreme Court for approval. As this motion for approval' is made ex parte it is, in most jurisdictions of the State, required that an affidavit be presented with the certificate by the person, present- ing the same that no previous application has been made for approval of the certificate, in accordance with Rule 25 of the General Rules of Practice. If duplicate originals have been made both of these duplicates should be pre- sented to the Judge so that he may sign both of them. After they have been signed by the Judge, one duphcate original should be sent to the Secretary of State at' Albany, with a certified check or a postoffice money order for the filing fee, which is $10, and 15 cents a folio for each folio contained in the cijrtificate. Executive Law, § 26. It is not necessary to send any sum to the State Treasurer, as there is no tax on filing such a certificate. If it is desired to have a certified copy of the certificate filed with the Secretary of State the expense of this certificate is one dollar and fifteen cents foreach foUo. If it is desired to have such a certified copy a copy should be transmitted to the Secretary of State for certification. Upon receiving the , acknowledgment from the Secretary of State the other duplicate original should be taken to the office of the County Clerk, together with the letter from the Secretary of State and filed in his office. The fees for filing in the office of the County Clerk are six cents and ten cents a folio. In the case of a membership corporation, it of course is not necessary to secure a book of stock certificates, nor is it necessary to secure a stock ledger. The only things necessary are a seal and a minute book. A meeting of the trustees should now be held and this is usually held on a waiver of notice signed by all the trustees mentioned in the certificate, which waiver should be written in the minute book. If it is desired to hold a meeting of the members of the new corporation this also may be held by a waiver of notice of meeting signed by all the members who ■signed the certificate of incorporation, which waiver should also be written in the minute book. There may be a separate minute book for the trustees and one for the members of the corporation, but it is usual to use the same minute book for the trustees and for the rnembers. In the case of a membership corporation, the By-Laws are almost invariably adopted by the members themselves. These By-Laws should be adopted at once, as they govern the future proceedings of the membership corporation. CORPORATIONS 1241 Certificate of Incorporation under Membership Corporations Law Second : The particular objects for which the corporation is to be formed are (state objects). Third : The territory in which the operations of the corpora- tion will be principally conducted is (briefly describe territory). Fourth: The principal office of the corporation is to be located in the town (village, or, city) of {state name of town, village, or, city). Fifth: The number of its directors shall be (state number, not less than three nor more than thirty) . Sixth: The names and places of residence of the persons to be its directors until its first annual meeting are as follows : Names. Places of residence. In witness whereof, we have made, signed, acknowledged, nnd filed this certificate in duplicate. Dated this day of , 19 . (Signatures of incorporators, not less than five.) State or New York 1 County of J " On this day of , 19 , before me per- sonally came (insert names of subscribers to certificate), to me personally known to be the persons described in and who made and signed the foregoing certificate and severally duly ac- knowledged to me that they made, signed, and executed the same for the uses and purposes therein set forth. (Signature of notary.) Certificate of Justice I hereby approve of the foregoing (or, within) certificate and of the fiUng thereof. (Signature of justice of the supreme court.) CHAPTER LXII WILLS FORMS NO. PAGE 672. Wm 1242 FORM NO. 672 WilP I, John Jones, residing at No. Street, Borough of Manhattan, City and State of New York, do hereby make, pubhsh and declare this as and for my last Will and Testament, as follows: {Revocation clause:) First : I hereby revoke any and all Wills and Codicils here- tofore executed by me. (Debts and funeral expenses:) Second: I direct that my just debts and funeral expenses be paid as soon as may be after my decease. {Devise of entire estate to wife:) Third: I give, devise and bequeath all my property, of whatsoever nature and wheresoever situated, to my wife, Mary Jones, and appoint my said wife sole executrix under this my will and direct that she be not required to give any bond or other security as such executrix. ' Forms of petitions for the probate of Wills and the proof necessary thereon, are furnished by the Surrogate's Court of all the counties and as it generally is required that the petitions be in substantially the forms as printed and furnished, such forms have been omitted from this volume to make room for more important matters. The same is true of petitions for accounting, both of executors and administrators. It is unquestionably the better practice to use the printed forms furnished by the Surrogate's Courts as they contain the requirements of such courts and the use of such forms will tend to accelerate such proceedings. 1242 WILLS 1243 ~ Will {Trust for children:) Fourth : I direct that all the rest, residue and remainder of my estate, of whatsoever nature and wheresoever situated (or a specific sum of money) be divided into as many equal parts as I have children at the time of my decease, and de- ceased children leaving issue, and I give, devise and bequeath each one and all of said parts to my executors and trustees herein named and their successors, to hold each one of said parts and all of said parts nevertheless, in trust for the uses and benefits hereinafter mentioned, to wit: The rents, income and profits from each one of said parts shall be paid to each of my said children during his or her life, and the rents, income and profits of each one of said portions bequeathed in trust for the benefit of the issue of any deceased child shall be paid to said issue during the lifetime of the oldest of said issue of any one deceased child. At the death of any of said children the prin- cipal of the sum so bequeathed to any such child in trust shall go absolutely and forever to the person or persons appointed to receive the same by the will of said child and if no such valid appointment is made, -to the next of kin of said child, and for the purposes of such distribution, if not made by a will of such child, each of said trust funds shall be considered personal property, and be distributed in accordance with the laws of the State of New York in force at the time of such distribution. At the death of the oldest of said issue of any such deceased child the sum hereby bequeathed in trust for the benefit of such issue of any such deceased child shall go to such issue and to the next of kia of the child who shall first die, absolutely and forever, share and share alike, per stirpes and not per capita; provided, however, that should any one of my said children or should the oldest of the issue of any such deceased child, reach the age of twenty-five years, then the principal of said share so bequeathed in trust shall go absolutely and forever to said child or to the issue of said deceased child, share and share alike, per stirpes and not per capita. It is my intention that in making said division the issue of any deceased child of mine taken together shall receive 1244 Bradbury's lawyers' manual Will the same amount as is bequeathed to any child of mine sur- viving. (Power to sell, mortgage and lease real estate:) Fifth: I hereby give my executors and trustees hereinafter named power to sell, mortgage or lease any or aU of my real estate, at such times and upon such security and in such amounts as they may determine to be for the best interests of my estate and wheresoever said real estate may be situated, and in selling the same to take a portion of the purchase price by way of mortgage thereon or otherwise. (Power to continue business:) Sixth: I hereby give power to my executors hereinafter named to continue the business in which I am now engaged at No. , Street, Borough of Manhattan, City and State of New York, for such a period of time as to my executrix may seem advisable for the best interests of my estate. (Investment of funds:) Seventh : I hereby give power to my executors hereinafter named to invest the fund of my estate in such securities other than those authorized by the laws of the State of New York, as to such executors may seem to be for the best interests of my estate. (Power to continue investments:) Eighth: I hereby give power to my executors hereinafter named to hold any bonds, mortgages, stocks or other securi- ties which I may hold at the time of my death, for such time as such executors may deem to be for the best interests of my estate and to sell the same at public or private sale as such executors may deem to be for the best interests of my estate. (Appointment of Executors:) Ninth: I hereby nominate and appoint Edward Edwards and Franklin Fisher, executors and trustees under this my Will WILLS 1245 Will and direct that they be not required to give any bond or se- curity as such. (Compensation of executors:) Tenth : I hereby direct that my said executors, as compen- sation for their services in connection with my estate, shall re- ceive the sum of dollars each, every year until their final discharge as such executors, provided, however, that any executor who does not qualify as such shall not receive anything, and provided, further, that no one executor shall receive any amount in excess of the sum of dollars altogether for all his services as such executor, and the sums herein mentioned are in lieu of any commissions allowed by law to such executors and are in addition to any necessary disbursements which said executors may be under as such. (Bequest in lieu of dower:) Eleventh: The bequest made herein to my wife, Mary Jones, is in lieu of all and every claim for dower which she might have in any portion of my estate. (Guardian of minor children:) Twelfth: I hereby nominate and appoint my wife, Mary Jones, as Guardian of any minor children which may survive me. (Filling vacancies in office of executor:) Nineteenth: The executors and trustees herein appointed or the survivor or survivors of them, or the successor or suc- cessors of them shall have power to fill vacancies at any time so that there shall always be three executors and trustees under this Will and should any such executor or the survivor of any such executor or successor of any such executor fail to make such new appointment within three months after the game becomes vacant, any beneficiary under this my Will may apply to the Surrogate's Court of the County of New York for the appointment of one or more executors to fill such vacancy, and the appointees thus named shall have all the powers of 1246 Bradbury's lawyers' manual Will executors appointed herein; provided, however, that if a ma- jority of the survi\dng beneficiaries under this my Will whose bequests are unpaid, irrespective of the amounts which each is to receive, join in a request for the appointment of a par- ticular executor or particular executors only such person or persons shall be thus appointed. {Renting offices and hiring clerks:) Fourteenth : The executors and trustees herein named shaU have power to rent offices, and hire such clerks and book- keepers as may be necessary to carry on the business of my estate and expenses thereof shall be a charge against the estate. {Contestitig will:) Fifteenth : If any person to whom a bequest is made under this my Will shall contest the same, or shall aid in contesting any portion of this my Will, the bequest to said person shall lapse and become void and the amount thereof shall be added to the residuary estate. {Charge on real property:) Sixteenth: Every specific bequest herein shall be and be- come a charge upon my real estate, if it is necessary to sell any thereof, in order to pay such bequest. In witness whereof, I have hereunto set my hand and seal and identified each one of the (four) sheets of this my Will, by signing my name at the end thereof and at the end of this Will, on this day of , 19 . John Jones, (L. S.) ' The above instrument, consisting of (four) sheets, was on the date thereof subscribed by John Jones the testator named in the foregoing Will, in the presence of us and each of us, and at the time of making such subscription the above instrument ' It is necessary that the Will should be signed at the end thereof, under the New \'ork Statute. The signing of the various pages constituting the Will is merely for the purpose of identification and is very often done when the Will is typewritten. Important Wills arc usually engrossed with a pen. WILLS 1247 Will was declared by the above testator to be his Last Will and Testament, and each of us, at the request of said testator, and in his presence, and in the presence of each other, have hereto signed om- names as witnesses ^ to said Will, on the day of , 19 . Adam Brown, residing at No. Street, Borough of Brooklyn, City and State of New York. William Williams residing at No. Street, City of New York. Ely Franklin, residing at No. , Street, Borough of Manhattan, City and State of New York. ' Under the New York Statute there must be two witnesses, and they must state their places of residence, otherwise they are subject to a penalty and pro- bate may be refused in some cases. Some of the states require three witnesses to a Will in order to pass real estate, so it is the usual practice on all W^iUs to have three witnesses. INDEX A PAGE ABATEMENT AND REVIVAL; list of forms .* 749 action to establish a will; does not abate by death of plaintiff 749 n affidavit on motion to revive action and for substitution of plaintiff's representative after death; form 750 mortgage foreclosure; affidavit on motion to revive action as against representatives of deceased part}'; form 892 mortgage foreclosure; order reviving action against representatives of deceased party, bringing in, striking out and correcting names of parties; form 895 notice of motion for revival of action and substitution of party plaintiff after death of party; form 749 order reviving action after death of plaintiff and substituting repre- sentatives of deceased as plaintiffs; form 751 power of court not limited by Code provision to revive action 749 n ACCIDENT INSURANCE; claim by beneficiary named in policy; com- plaint; form 253 ACCORD AND SATISFACTION; answer; form 271 ACCOUNT; annual account of general guardian; form 100 assignment; form 5 assignment of open account; subsequently arising cause of action thereon 4 n demand for bill of particulars of; form 289 short form of assignment written in books of account; form 6 ACCOUNTING; receiver; account of receiver of rents in mortgage fore- closure; form 827 ACCOUNT STATED; complaint; form 235 ACKNOWLEDGMENT; list of forms 133 administrator, executor or trustee, form 144 certificate of authentication when acknowledgment is taken in one County in the state to be used in another county in the state; form 146 certificate of authentication when an acknowledgment is taken with- out the state to be used within the state; form 147 corporation; form 146 distinction between affidavit and acknowledgment and the manner of taking 134n grantor identified by a witness; form 136 husband and wife identified by a witness; form 141 husband and wife; known to the officer; form 140 1249 1250 INDEX ACKNOWLEDGMENT— ContiMMerf page husband known and wife identified; form 142 manner in which notary or other officer may become acquainted with person making acknowledgment 136 n one or more grantors known to officer; short form 133 partnership; by one partner; form 145 person conveying by power of attorney; form 145 proof of the execution of a deed when the subscribing witnesses are dead; • form 139 sheriff; referee or receiver; fonn 143 subscribing witness of a deed executed by husband and wife; form 142 subscribing witness known to the office!-; form 137 two husbands and their wives; form 140 two persons, one known and one identified; form 137 under sheriff in the name of the sheriff; form 144 wife in separate certificate; form 141 witness identified where deed executed by husband and wife; form 143 witness not known but identified; form 138 ACTION; enjoining prosecution of; when equity will restrain 499 n enjoining prosecution thereof; recitals in injunction orders 498, 499 ADJOURNMENT; affidavit to procure on trial; form 610 costs allowed on 649 ADMINISTRATOR; acknowledgment by; form 144 deed by; form 604 ADOPTION; agreement of adoption; form 1101 list of forms 1099 order of adoption ; form 1 102 petition for adoption; fonn 1099 ADVERTISING; partition; notice of motion on 'application to spend addi- tional sums for advertising; form 1032 removal of advertising signs from New York Subway; injunction; re- cital in injunction order 495 sale; partition; affidavit on motion to authorize spending of additional sums for advertising; forms 1033, 1034 AFFIDAVIT, fist of forms 149 adjournment of trial; form 610 arrest; conversion of money by fiduciary; forms 400, 404, 405, 406 arrest; fraud in sale of stock; form 390 arrest; malicious prosecution; what must be shown in affidavit 385 n attachment; assigned claim; statement that plaintiff is entitled to re- covers specified sum over all counterclaims 453 n attachment; breach of contract for exclusive agency; foreign corpora- tion defendant; form 441 attachment; certified check which has been assigned; action against foreign corporation; form of affidavit 452 attachment; non-resident defendants; foYms 435, 438, 439 INDEX 1251 AFFIDAVIT— Core/mued page attachment; to secure order to show cause why attachment should not be vacated on original papers; form of affidavit 467 attorney; by attorney on motion to open default in pleading; form 362 attorney; motion to secure extension of time to plead ex parte; form 346 attorney; taken by attorney of record in action 150 n bill of particulars; affidavit of attorney when motion made before an- swer; form 293 certificate of authentication when affidavit is to be taken without the state to be used within the state; form 151 commission to take testimony without the state to be used within the • state; form 562 default; affidavit of regularity in moving for judgment on default in actions of foreclosure, partition and the Mke, form 355 deposition; to secure examination of party before trial; form 546 deposition; to secure order for examination of a person not a party de bene esse; form 542 distinction between affidavit and acknowledgment and manner of taking 134 n examination of corporation before trial ; form 550 examination of person to be used on motion; form of affidavit. . . ■. 557 examination of witness in the state to be used without the state; form . . 571 execution against wages and income from trust fund; form of affidavit to secure 668 execution; against wages in Municipal Court of the City of New York; form of affidavit to secure 674 foreclosure of chattel mortgage; affidavit to procure writ of seizure; form . , 975 foreclosure of conditional bill of sale; affidavit to procure warrant of seizure; form 985 form of direct statement instead of by way of recital 150 n general form of to secure order to show cause 372 guardian and ward; affidavit of proposed guardian ad litem as to abihty ; form 108 guardian and ward; as to property on proceeding for appointment of general guardian; form 97 guardian and ward; mortgage foreclosure; affidavit of guardian as to competency; form. -^ 862 guardian ad,litem; affidavit of hability of proposed guardian; form 114 guardian ad litem; affidavit of ability of proposed guardian; form. ..... 121 information and belief; affidavit to support attachment; rules regarding 432 n information and belief; conversations with other persons; how set forth 433 n information and belief; exeusipg production of affidavit of party who has positive knowledge 433 n information and behef ; setting up letters, telegrams or other documents 433 n information and belief; showing that the person from whom infonnar tion is secured has knowledge. ,. . . 434 n information and belief; telephone conversations; sufficient allegations as to ;..■., 433 n I 1252 INDEX AFFIDAVIT— Continued page injunction; application for order to show cause with temporary stay in action of interpleader; forms of affidavits 478, 479 injunction; vacating; to secure order to show cause why injunction should not be vacated on original papers; form 512 jurat; necessity and meaning of 150 n limited copartnership; affidavit to be filed with certificate; form 1219 mailing of summons, complaint and notice pursuant to order; form .... 195 matrimonial action; divorce; motion for final judgment; form 1191 mortgage foreclosure; affidavit of attorney for receiver for allowance; form 832 mortgage foreclosure; affidavit of guardian ad litem for allowance 868 mortgage foreclosure; affidavit of regularity; form 897 mortgage foreclosure; affidavit of regularity and motion for judgment; reference to compute and to correct names; form 901 mortgage foreclosure; application for order to show cause why receiver should not be appointed; forms of affidavits 820, 823 mortgage foreclosure; mailing of summons pursuant to order for pubh- cation of summons against absent and unknown defendants; form. 856 mortgage foreclosure; motion by plaintiff to discontinue action; form 906 mortgage foreclosure; motion by referee to sell for extra allowance; form 961 mortgage foreclosure; motion for order for publication of summons as against absent and unknown defendants; form 840 mortgage foreclosure; motion to bring in new parties; form 876 mortgage foreclosure; motion to bring in people of state as party de- fendant; form 871 mortgage foreclosure; motion to confirm referee's report of sale; form . . 955 mortgage foreclosure; motion to designate person to receive summons on behalf of infant defendants; form 837 mortgage foreclosure; motion to direct referee to sell in separate parcels; form ■ . . . . 936 mortgage foreclosure; motion to require purchaser to complete or for a resale; forms 942, 946 mortgage foreclosure; motion to revive action as against representatives of deceased party to bring in, strike out and correct names of parties; form 892 mortgage foreclosure; motion to set aside order of reference and judg- ment of foreclosure and sale to bring in new parties; form 908 mortgage foreclosure; motion to strike out parties, bring in parties and correct names of parties; form 882 mortgage foreclosure; service of motion papers on motion to require purchaser to complete or for a resale; form 947 mortgage foreclosure; service of notice of filing referee's report of sale and notice of motion to confirm same; form 958 motion by defendant to secure extension of time ex parte; form 345 motion for biU of particulars after answer; form 297 motion for bill of particulars before answer; form 291 motion for judgment on a counterclaim for failure to reply; form 336 motion for leave to sue on judgment; form 70 INDEX 1253 AFFIDAVIT— Corattnued page motion for order for service of summons by publication or personally without the state; form 186 motion for security for costs; form 656 motion to continue mechanics lien; form 759 motion to designate person to receive summons on behalf of infant under 14; form 175 motion to discontinue; form 742 motion to dismiss for failure to prosecute; form 746 motion to dispense with delivery of summons to lunatic; form 180 motion to make pleading more definite and certain; form 323 motion to open default in pleading; form 360 motion to place case on short cause calendar in New York County under Rule 5, subd. 2; form 594 motion to place case on short cause calendar in New York County under Rule 5, subd. 3; form 596 motion to place case on short cause calendar in New York County under Rule 5, subd. 4; form 598 motion to restore case to calendar; form 600 motion to retax costs; form 655 motion to revive action and for substitution of plaintiff's representative after death; form 750 motion to secure extension, of time to plead on notice; affidavit of at- torney; form 350 motion to strike out irrelevant, redundant and scandalous matter; form 327 motion to vacate order of arrest; form 418 new trial on newly discovered evidence; form of affidavit 617 non-residence of defendant, to secure order of arrest under Code Civ. Pro., § 550; form 420 non-residence of plaintiff for purpose of attachment 430 n of attorney on motion for bill of particulars ; when sufficient 297 n partition; affidavit of regularity on motion for judgment and appoint- ment of referee to take proof and report liens; form 1012 partition; motion for extra allowance; form 1046 partition; motion to compel purchaser to take title; form 1081 partition; motion to confirm referee's report and for interlocutory judg- ment; form 1025 partition; motion to procure writ of assistance; form 1078 partition; sale; affidavit on motion to authorize spending of additional sums for advertising; forms 1033, 1034 physical examination of plaintiff; affidavit to secure; form 555 preference in New York County when defendant under arrest; form .... 587 preference on calendar in New York County when defendant's property attached; form 591 publication of notice of limited partnership; form 1221 publication of summons and notice; form 194 receiver; leave to sue; form 44 receiver; motion for permission to sue receiver; form 51 replevin; form 779 service on injunction order made by judge, on a natural person; form . . , 504 1254 INDEX AFFIDAVIT— Continued , page service of injunction order; when made by court; form 506 service of order for discovery and inspection; fonn 579 • service of order for examination before trial; form 553 service of paper other than summons on an attorney; form 197 service of subposna; form 606 service of summons in matrimonial actions; form 172 service of summons on adult person within the state; form 161 service of summons on domestic corporation; form 162 service of summons on foreign corporation; form 164 service of summons on infant defendant under 14; form. , 174 service of summons on infant over 14; form 173 service of summons on municipal corporation; form 163 service of summons on person judicially declared to be incompetent for whom committee has been appointed; form ., 178 service of summons on unincorporated association; form ............. 170 service on a corporation of an injunction order made by a judge; form . . 505 service on defendant personally without the state; by whom made. . . . 196 signing by affiant; necessity of : 150 n special guardian; affidavit of proposed guardian as to competency ; form 129 substituted service of summons on resident of the state; affidavit to pro- cure; form 182 supplementary proceedings; affidavit for examination of judgment debtor before return of execution; form 686 supplementary proceedings; affidavit to obtain order to show cause why attachment should not issue against judgment debtor; form. ...... 697 supplementary proceedings; examination of judgment debtor after re- turn of execution; form of affidavit 690 supplementary proceedings; examination of third party as to property of judgment debtor; form 693 supplementary proceedings; service of order; fond of affidavit 696 surplus money proceeding; motion for reference; form 1087 title; form 1153 venue, necessity and meaning of 150 n when petition maj' be made in place of affidavit 990 n AFFIDAVIT OF MERITS; list of forms 366 form , 149 of attorney; form '. ■ 367 of partjt; form '■ 366 AFTER ACQUIRED PROPERTY; assignment 2 n subsequently arising cause of action, on open account; assignment 4 n AGENT; verification by agent or attorney when all material allegations of pleading are within his personal knowledge, form 310 verification of pleading by foreign corporation where allegations are made positively and not on information and behef ; form 312 verification of pleading of foreign corporation where made on informar tion and belief; form 312 verification of pleading on written instrument in possession of agent; form 310 iNtitex: 1255 PAGE ALBANY; City of; notice of claim for personal injuries; form 29 AMENDMENT; attachment amendment of papers on motion to vacate on original papers 429 n mortgage foreclosure; affidavit on motion to set aside order of reference and judgment of foreclosure and sale to bring in new parties; form 908 mortgage foreclosure; affidavit to correct names of parties; form 901 mortgage foreclosure; order setting aside order of reference and judg- ment of foreclosure and sale to bring in new parties; form 913 order appointing guardian ad litem in partition action; when may be amended nunc pro tunc as to bond 996 n pleadings at the trial; withdrawal of juror 611 n ANSWER; Ust of forms 267 V^accord and satisfaction, form 271 containing absolute denial, denials on information and belief, and de- nials of knowledge or information sufficient to form a belief; form 267 containing counterclaim; form 270 denials of knowledge or information sufficient to form a belief 269 n discharge of defendant in bankruptcy, form 274 general answer by infant submitting rights to the protection of the court 275 guardian and ward ; answer of guardian ad litem in foreclosure suit; form 867 mechanic's lien; defendant demanding foreclosure of his lien; form. . . . 766 mortgage foreclosure; executor as such not liable for deficiency as he had no power under will to make mortgage; form 916 , payment; form 274 ..— statute of limitations; form 273 usury; form 272 See Demurrer. APPEAL; list of forms 701 amendments to case on appeal and settlement thereof 704 n amendments to proposed case on appeal ; form 722 Appellate Division; First Department; briefs and points; how and when served 705 n Appellate Division; First Department; notice of argument 706 n Appellate Division; Fourth Department; service of papers and briefs. . 708 n -Appellate Division; from an order; note on practice 711 n Appellate Division; notice of argument in Appellate Division on appeal from judgment ; form 725 Appellate Division ; Second Department ; service of papers and briefs . . . 707 n Appellate Division; Third Department; service of papers and briefs . . . 707 n Appellate Division; various steps on taking appeal to Appellate Divi- sion from a judgment after a jury trial 701 n case and exceptions on appeal from Supreme Court; Trial Term to Appellate Division; form 712 case on appeal; 'filing printed case with clerk and serving same on re- spondent's "attorney 705 n case on appeal; practice after trial judge had passed on proposed amendments : '. 704 n 1256 INDEX APPEAL — Continued page case on appeal; suggestions as to making 703 n City Court of the City of New York to Appellate Teim of Supreme Court; practice on 714 n costs; certifying printed case 650 costs; Court of Appeals; extra allowance for delay 648 costs; filing return to Court of Appeals 65b costs; making and serving amendments to case 647 costs; making and serving case 647 costs on appeal to Appellate Division from judgment 648 costs on appeal to Court of Appeals 648 costs; remittitur from Court of Appeals 650 Court of Appeals; making up and serving appeal papers 711 n Court of Appeals; note on various steps relating to appeal to Court of Appeals 710 n Court of Appeals; serving and filing briefs 711 n entering judgment after appeal 709 n from judgment of Special Term; various steps on such an appeal 708 n judgment of affirmance after appeal to Appellate Division; form 727 Municipal Court of the City of New York; making up record 761 n Municipal Court of the City of New York to Appellate Term; practice 715 n note on appeal practice 701 n notice of appeal from Municipal Court to Appellate Term; form 735 notice of appeal to Appellate Division from judgment rendered on ver- dict of jury and order denying motion for a new trial; form 702 notice of appeal to Appellate Division from order; form 732 notice of appeal to Appellate Term from a judgment of the City Court of the City of New Yorl^; form -. 733 notice of appeal to Court of Appeals from judgment of affirmance; form 728 notice of appeal to Court of Appeals from reversal and order granting new trial 728 n notice of argument in Appellate Term on appeal from Municipal Court; form 740 notice of argument of appeal in Appellate Term from judgment of the City Court of the City of New York; form 734 notice of argument of appeal in Court of Appeals; form 731 notice of settlement of case; form 723 order denying motion for a new trial; form of order 706 order; note on practice on appeal to Appellate Division from an order. . 711 n order of affirmance in Appellate Division; form 726 order; on what papers heard and how record prepared 712 n order; service of papers and copies in various Appellate Divisions. . . . 713 n printing case; costs 650 printing case; costs allowed as disbursement 650 printing papers; number of copies printed 709 n printing points; costs 650 proposed case on appeal; form 720 statement under P^ule 41; form 719 statement under Rule 4 of the Appellate Term Rules on appeal from Municipal Court; form 739 INDEX 1257 APPEAL — Continued page stipulation as to papers on appeal to Appellate Division in lieu of cer- tification; form 733 stipulation extending time of appellant to serve proposed case on ap- peal; form 710 stipulation waiving certification of return on appeal to Court of Ap- peals; form 731 undertaking; approval 723 n undertaking on appeal; form 723 undertaking on appeal from judgment in Municipal Court; justifica- tion of sureties 736 n undertaking on appeal from judgment of Municipal Court to stay execution; form 736 undertaking on appeal to Court of Appeals when stay desired 729 n undertaking on appeal to Court of Appeals when stay of execution of judgment is not desired; form 729 APPEARANCE 201 limited 201 n notice of appearance; form 201 notice of; when served 202 n surplus money proceeding; clerk's certificate as to appearances in ac- tion; form 1090 voluntary; effect of 201 n ARREST; list of forms 383 affidavit; conversion of money by fiduciary; forms. . . .400, 404, 405, 406 affidavit for preference in New York County for defendant under ar- rest ■ 587 affidavit of non-residence of defendant to secure order of arrest under Code Civ. Pro., § 550; form 420 affidavit on motion to vacate order of arrest; form 418 ' affidavit; sufficiency; making prima facie case 385 n affidavit to secure order to show cause why order of arrest should not be vacated when motion made on original papers; form 415 approval of bail endorsed thereon by Judge after justification; form . . . 426 attachment and order of arrest in same action 429 n bail bond; form 422 bail; notice of justification of bail; form 425 bail; sheriff's duty to deliver to plaintiff's attorney copy of bail 424 n complaint; conversion of money by fiduciary; form 407 demand on fiduciary who is alleged to have embezzled funds; when necessary 408 n deposit in lieu of bail; withdrawing deposit when appeal pending from order vacating arrest 409 n discharge for failure to properly enter judgment 386 n divorce; when order granted; necessity of complaint showing demand for alimony 410 n execution against person; form 663 fraud; breach of contract; recovery for breach of contract when allega- tions as to fraud are surplusage 385 n 1258 INDEX ARREST — Continued page fraud; complaint; sale of stock; form 387 fraud; false representations in securing discount of note 410 n fraud in making contract; necessity of submitting complaint 385 n fraud in sale of stock; affidavit; form 390 fraud; transfer of real property in another state 385 n in what actions granted 384 n malicious prosecution; what must be shown in affidavit 385 n motion to vacate; where and when made 414 n notice by plaintiff's attorney for non-acceptance of bail; form 424 notice of motion for preference on calendar in New York County when defendant under arrest; form 585 notice of motion to vacate order of arrest when based on affidavits; form 417 notice of motion to vacate order of arrest made on papers on which the order was granted; form 413 order of arrest, form 399 order of arrest; in action for fraud; form 384 order to show cause why order of arrest should not be vacated when motion made on original papers; form 416 order vacating or refusing to vacate order of arrest; form 419 order when grounds therefor depend on extrinsic facts; form 409 renewal of motion where first order denied ; affidavit of attorney ; form . . 406 under Code Civ. Pro., § 550, when execution against person can issue. . 409 n undertaking on order of arrest; form 411 undertaking; assignment of 4 n woman; wilful injury; conversion of property sold on instalment plan. . 385 n ASSIGNMENT; Ust of forms 1 account; form , 5 account; short form written in books of account; form 6 after acquired property 2 n assignee disposing of sale of stock claimed by plaintiff; injunction; re- cital in injunction order 501 attachment; action on assigned claim; statement that the plaintiff is en- titled to recover a specified sum over all counterclaims 453 n bond and mortgage with covenant; form 10 bond and mortgage without covenant; form 12 certified check; action against foreign corporation; attachment; form of complaint 450 certified check; attachment where defendant foreign corporation; war- rant of attachment; form 447 certificate of deposit 3 n chattel held by bailee 3 n chattel mortgage; forms 14, 968 commissions of executors 3 n contract to exploit patents 2 n contract with the state 4 n ..,.. 599 order preferring case and setting it down for a day certain in New York County when defendant under arrest; form 589 order preferring case in New York County when defendant's property attached; form 692 order restoring case to calendar; fprm 601 CASE. SeeApPEAl,, 1264 INDEX PAGE CERTIFICATE; authentication of notary when affidavit taken without the state to be used within the state; form 151 authentication of notary when acknowledgment is taken without the state to be used within the state; form 147 authentication when an acknowledgment is taken in one county of the state to be used in another county of the state; form 146 incorporation of business corporation; form 1224 matrimonial action; divorce; certificate of County Clerk as to proceed- ings had in action; form 1192 mortgage foreclosure; clerk's certificate of no exceptions filed to referee's report of sale; form 957 service of summons by sheriff; form 162 service of summons by sheriff in action by private person for penalty or forfeiture; form 171 surplus money proceeding; clerk's certificate as to appearances in ac- tion; form 1090 surplus money proceeding; clerk's certificate of filing claim to surplus money; form 1091 CERTIFICATE OF DEPOSIT; assignment 3 n CERTIFICATION; authentication of transcript of justice's docket; form . . 517 record, judgment or order by officer within the state to be used in an- other portion of the state; form 515 CHARGE OF TRIAL JUDGE; requests to charge and exceptions to charge 612 n CHATTEL MORTGAGE; list of forms 966 affidavit on writ of seizure; action to foreclose chattel mortgage; form. . 975 assignment; forms 14, 968 foreclosure; complaint; form 972 foreclosure; writ of seizure; form 979 form 966 refilling 970n satisfaction; form 969 statement to be appended to copy of chattel mortgage upon refiling; form 970 statement to be refiled in lieu of copy of chattel mortgage; form 971 CHECKS. See Negotiable Instruments. CITY COURT OF THE CITY OF NEW YORK; appeal to Appellate Term of Supreme Court; practice 714 n notice of appeal to Appellate Term from a judgment of the City Court of the City of New York; form 733 notice of argument of appeaLin Appellate Term from judgment of City Court of City of New York; form 734 summons; form 156 supplementary proceedings; necessity of filing transcript of judgment in County Clerk's office •. 694 n CITATION; execution against executors or administrators; form of citation 682 INDEX 1265 PAGE COMMISSION. See Deposition. COMPLAINT; list of forms 205 accident insurance; death claim; action by beneficiary named in policy; form 253 accident policy; pleading waiver of requirements of policy 255 n account stated; form 235 action against endorser of check; form 233 action against infant for necessaries; form 216 action on check ; payee against maker; form 232 bailment; handbag checked in parcel room of railway station; clause in check limiting liability of company; form 249 breach of contract for sale of chattels; seller against purchaser; form . . . 208 breach of contract for sale of personal property; purchaser against seller; form , 209 breach of contract of employment; form ' 221 breach of contract of employment; burden of proof; pleading 221 n building contract; delay in performance which owner waived; form .... 222 certified check; attachment; foreign corporation; assigned claim; form of complaint 450 chattel mortgage; foreclosure; form 972 conversion by fiduciary; arrest; form of complaint 407 enforcing restrictive covenant in deed; form 259 fidehty insurance policy; form 256 fire insurance policy; form 250 foreclosure of lien on chattel under conditional bill of sale ; form 983 foreclosure of mechanic's lien where contract for improvements made with tenant with consent of landlord; form 762 foreclqpure of mortgage on real property; form 804 fraud, necessity of submitting complaint on motion for arrest 385 n fraud; sale of stock; arrest; form 387 goods sold and delivered; form 206 implied warranty in sale of seeds; form 212 injunction; interpleader action; form of complaint 481 injunction; temporary; essential allegations of a complaint 473 n injunction; when complaint is essential on motion for t^porary in- junction 472 n master and servant; alleging giving notice under Employers' LiabiHty Act 77 n money had and received; form 236 negligence; action by administratrix for damages for death of plaintiff's intestate; form 238 negligence; municipal corporation; failure to properly maintain high- ways; form 241 partition; forms 999, 1003 partnership note made in partnership name; form 229 promissory note against maker and endorser; form 231 promissory note made payable to order of the maker; form 230 promissory note payable to bearer; form 228 1266 INDEX COMPLAINT— Co/i/i/iuetZ page promissory note: payee against maker 227 promissory note; payee against maker; statutory form setting fortli 4 copy of note; form 226 rent; action for; form 237 replevin; form 777 services of broker for commissions on sale of real property where owner refuses to carry through sale; form 219 warranty; breach of in sale of personal property; necessity of pleading notice 215 n. work, labor and services; form 217 See Demurrer. COMPOSITION AGREEMENT; form 1113 CONDITIONAL BILL OF SALE. See Bill op Sale. CONDITIONAL SALE; complaint on foreclosure of lien on chattel under conditional bill of sale; form 983 foreclosure of lien; affidavit to procure warrant of seizure; form 985 foreclosure of hen on chattel under conditional bill of sale; form of judg- ment 987 CONFESSION OF JUDGMENT; form of judgment 622 statement for; form 621 CONSPIRACY; injury to plaintiff's business; injunction; recital in injunc- tion order 497 CONSTRUCTION OF BUILDINGS; interference with; injunction; re- cital in injunction order 495 CONTEMPT; order to show cause why attachment should not issue against judgment debtor in supplementary proceedings; form 699 supplementary proceedings; affidavit to obtain order to show cause why attachment should not issue against judgment debtor; form 697 CONTRACT; building agreement; form 1195 exchange of real property; form 1119 exclusive right to sell book; violation of contract; injunction; recital in injunction order 487 party wall agreement ; f orm 1 155 removal of advertising signs from New York Subway; injunction; re- cital, in injunction order 495 restraint of trade; injunction; recital in injunction order. . . . 488, 489, 490, 491 sale of real property; form 1115 CONVERSION;fiduciary;orderofarrest;formsof affidavit. .400, 404, 405, 406 COPARTNERSHIP; limited partnership designation by the clerk of a newspaper in which publication of the certificate is to be made; form 1220 See Partnership; Limited P.artnebship. COPIES; authentication of copies of records to be used as evidence; list of forms 515 authentication of judgment of a foreign Justice of the Peace; form 525 INDEX 1267 COPIES—Continiied pagej authentication of transcript of justice's docket; form . , 517 certification of record, judgment or order by officer within the state- to be used in another portion of the state; form , 615 certified copies; expenses of procuring; when allowed as costs 649 . exemplified copy of judgment to be used in another state; form 518 exemplified copy of a judgment of a foreign country; form. 523 - exemplified copy of judgment or other record of another state; form . . 520 CORPORATIONS; list of forms 1224 < acknowledgment by; form / 146 ■ . action against directors and corporation for waste; notice by stock- holder to bring action; form 89 affidavit of service of summons on domestic corporation ; form 1 62 affidavit of service on a corporation of an injunction order made by a judge; form ; 505 annual report; form 1236 assignment for benefit of creditors; form 1104 business; books needed. 1226 n business; certificate of payment in of capital stock 1226 n business corporation; certificate of incorporation; form 1224 business; first meeting : 1226 n business; note on proceedings to incorporate business corporation 1224 n by-laws; form of 1230 certificate as to payment in of capital stock; form 1237 certificate of incorporation of business corporation ; form 1224 • . certificate of inspectors of election; form ., 1235 certificate of payment in of amount with which corporation is to begin business; form ■ , . ., 1238 disposal of stock or voting thereon; injunction; recital of injunction. order - : . . , 498 dissolution; disposal of property in action to dissolve injunction; recital in injunction order ....;.... : 500 dissolution; restraining legal proceedings in. action to dissolve; recital in injunction order •. 500 examination of as party before trial; affidavit; form 550 foreign; affidavit of service of summons on; form 164 foreign; assignment of claim when corporation cannot sue 3 n • foreign; how and upon whom service of summons may be made 164 n foreign; how far jurisdiction can be acquired over by service of summons on officer in this state •. 166 n ,- foreign insurance company being liquidated by foreign insurance de- partment; attachment 429 n foreign ; service of summons on secretary of state; when allowed 166 n foreign; verification by attorney where denial of knowledge. or informa- tion; form 313 foreign; verification of pleading by agent or attorney where made on information and belief; form 312 foreign; verification of pleading by attorney or agent where allegations ' are made positively and not on information and belief; form 312 1268 INDEX CORPORATIONS— Conimued page foreign; warrant of attachment for breach of contract for exclusive agency; form 440 foreign, who is managing agent upon whom summons may be served. . . . 165 n forfeiture of stock for non-payment of assessment; injunction; recital in injunction order 502 membership; certificate of corporation under membership corporation law; form 1239 membership corporation; books required 1240 n membership fees; for filing papers 1240 n membership; first meeting 1240 n membership; note on organization of membership corporation 1239 n oath of inspectors of election; form 1236 order for substituted service of summons on domestic corporation; form 184 proxy; form 1239 reorganizing; injunction; recital in injunction order 498 stockholder's action against directors for waste; notice to directors; necessity of 89 n stockholders; personal liability for wages; notice; form 88 supplementary proceedings; examination when corporation has been dissolved 691 n unincorporated association; affidavit of service of summons on; form . . . 170 verification of pleading by domestic corporation; form 309 COSTS; list of forms 646 additional allowance in real property actions 648 adjournment of trial 649 affidavit on motion to retax costs; form 655 affidavits and acknowledgments 650 after notice of trial 647 appeal; certifying printed record 650 appeal; Court of Appeals 648 appeal; Court of Appeals; extra allowance for delay 648 appeal; filing return to Court of Appeals 650 appeal; making and serving amendments to case 647 appeal; making and serving case 647 appeal; remittitur from Court of Appeals 650 appeal to Appellate Division from judgment 64S attachment; additional allowance 648 before notice of trial 646 bond of receiver on securing permission to sue; form 48 calendar fee 649 certified copies of papers 649 clerk's fee on trial 649 clerk's fees on entering judgment 650 copies of opinions and charges of judges; when allowed as a disburse- ment 649 deposition; amount allowed on 647 deposition; fees of commissioner 649 entering and docketing judgment; expenses of 649 V INDEX 1269 COSTS— Continrnd page entry of judgment after jury trial; without notice of taxation 613 n extra allowance; when motion therefor made; difficult and extraordinary case 612 n filing notice of lis pendens 650 guardian ad litem; for procuring appointment of 647 injunction order 647 judgment on default under Code Civ. Pro., § 420 623 n jury fee 650 mortgage foreclosure; affidavit of guardian ad litem for allowance; form 868 mortgage foreclosure; bill of 934 mortgage foreclosure; order confirming referee's account and making allowance to receiver's counsel; form 835 new trial after appeal 648 new trial; motion for 647 new trial on special verdict 647 notice of motion for retaxation of costs; form 654 notice of taxation in partition 1044 objections to bill of costs presented on taxation before the clerk; form 653 partition; affidavit for extra allowance; form 1046 partition; bill of costs 1044 printing case on appeal 650 printing papers 649 printing points on appeal 650 pubMcation; expenses of 649 referee's fees 647 - searches affecting property; when certified by title insurance company . . 649 security; affidavit on motion for; form 656 security for; order requiring security; form 658 security; when allowed 656 n service of summons by publication 647 serving additional defendants 647 sheriff's fees for returning and entering an execution 649 stenographer's minutes 650 Surrogate's Court; bill of costs in Surrogate's Court 651 table of amounts allowed as costs 646 term fees 648 trial of issue of fact 647 trial of issues of law 647 imdertaking on security for costs; form 659 witness fees 650 COUNTERCLAIM; attachment; assigned claim; statement and affidavit that plaintiff is entitled to recover a specified sum over all counter- claims 453 n filing notice of lis pendens by defendant who sets up counterclaim .... 204 n form of contained in answer 270 motion for judgment on counterclaim for failure to reply; rules govern- ing motion and reUef which may be granted 338 n 1270 INDEX GOV'NTEKCJ.AIM— Continued page motion for judgment on for failure of plaintiff to reply; form; notice of motion , . 335 must be specified as such 270 n pleading one tort as counterclaim to another 270 n SEe Demurrer. COUNTY CLERK; certificate of in matrimonial actions as to proceedings had in action; form 1192 decree in an action to enforce restrictive covenant in deed; fprm 641 restrictive covenant in deed; complaint in action to enforce; form 259 restrictive covenant in deed ; form of 641 n D DAMAGES; prospective; exclusive agency contract; affidavit on attach- ment against foreign corporation, form 441 DEATH; attachment in action for causing 429 n DEBTOR AND CREDITOR; mechanic's lien; filing notice of mechanic's lien after bankruptcy of debtor 753 n composition agreement; form 1113 See Assignment for Benefit of Creditors. DECREES. See Judgments. DEED; administrator's; form 1132 bargain and sale deed; form 1124 committee of a lunatic; form 1145 decree in an action to epf orce a restrictive covenant in a deed ; form . . 641 executor's; form - 1126 guardian's; form 1136 New York short form of full covenant and warranty deed; form 1122 quit claim; form 1125 referee's deed in foreclosure; forms 1128, 1138 referee's deed in partition; forms 1130, 1140 restrictive covenant; complaint in action to enforce; form 259 sheriff's deed in mortgage foreclosure cases; form 1142 sheriff's; on sale under an execution; form 1143 watercourses; form 1147 DEFAULTS; list of fonns 354 affidavit of attorney on motion to open default in pleading; form 362 affidavit of defendant on notice of motion to open default in pleading, form 360 affidavit of regularity in moving for judgment on default in actions of partition, foreclosure and the like; form 355 affidavit of regularity in mortgage foreclosure; form 897 case on appeal ; securing extension of time to serve 703 n court order opening default in pleading; form 364 demand by defendant for notice of execution of reference or writ of in- quiry; form 628 INDEX 1271 DEFAULTS— Coratmwd page distinction between motion to open default and motion to set aside pro- ceeding for irregularity 354 n endorsement on papers in supplementary proceedings noting default of judgment debtor in appearing; form 354 inquisition on writ of inquiry; form 630 judgment; after return of writ of inquiry in action for personal injuries; form 631 judgment by after service of summons by publication; practice 632 n judgment by; after service of summons on defendant without the state or by publication; form 634 judgment by; notice of execution in writ of inquiry; form 629 notice of motion to open default; form 359 order for judgment on default after service of summons by publica- tion ; form 632 order for judgment and assessment of damages by writ of inquiry; form 625 order to show cause en motion to open default in pleading; form 363 partition; affidavit of regularity on motion for judgment and appoint- ment of referee to take proof and report liens; form 1012 statement and judgment by under Code Civ. Pro., § 420; form 623 writ of inquiry to sheriff on default in tort actions; form 627 DEFICIENCY JUDGMENT; mortgage foreclosure; request to clerk to docket deficiency judgment; form 964 DEMAND; bill of particulars; when necessary or effective 289 n when necessary as against fiduciary who is alleged to have embezzled fund 408n DEMURRERS; list of forms 279 answer; affirmative defense; form ■^. 285 complaint; another action pending for same cause; form 281 complaint; court without jurisdiction of person of defendant, form. . . . 280 complaint; court without jurisdiction of subject of action; form 280 complaint; defect of parties plaintiff; form 283 complaint; defect of parties defendant; form 283 complaint; facts not stated sufficient to constitute a cause of action; form 284 complaint; improper joinder of causes of action; form 284 complaint; misjoinder of parties plaintiff; form 282 complaint; plaintiff without legal capacity to sue; form 281 counterclaim; another action pending; form 286 counterclaim; cause of action not stated; form 287 counterclaim; court without jurisdiction of subject-matter; form 285 counterclaim; defendant without legal capacity to sue; form 286 counterclaim not allowed by § 501 of the Code; form 287 meaning of words "misjoinder" and "defect" of parties as, ground of; demurrer 282 n order overruling or sustaining demurrer when demurrer is brought on for trial as a htigated motion; form 340 pleading over after interlocutory judgment affirmed by Appellate Divi- sion; where motion made 342n 1272 INDEX DEMURRERS— Cora . . . 115 guardian ad litem; court order appointing guardian ad litem for infant under fourteen ; form 122 guardian ad litem; judge's order appointing guardian ad litem for infant over fourteen; form 110 guardian ad litem; judge's order appointing guardian ad litem, of infant under fourteen; form 116 guardian ad litem: necessity of appointment even where infant has gen- eral guardian 105 n guardian ad litem; necessity of appointment when infant is plaintiff. ... 104 n guardian ad litem; necessity of bond before guardian receives money or issues execution , 106 n guardian ad litem; notice of motion for appointment of guardian ad litem of infant under fourteen ; form 117 guardian ad litem; petition; application by general or testamentary guar- dian for appointment of guardian ad litem for infant under four- teen; form Ill guardian ad litem; petition by infant oyer fourteen; form 104 guardian ad litem; petition by relative or friend for appointment of guajdian ad litem of infant under fourteen; form 119 guardian ad litem; settlement of claim ; necessity of authority of court . . 106 n guardian's deed; form 1136 mortgage foreclosure; affidavit of guardian ad litem as to competency; form 862 mortgage foreclosure; affidavit of service of notice of application for appointment of guardian ad litem; form . ; 864 mortgage foreclosure; answer of guardian ad litem; form 867 mortgage foreclosure; consent of guardian ad litem to act; form 861 mortgage foreclosure; notice of application for appointment of guardian ad litem ; form 863 mortgage foreclosure; order appointing guardian ad litem for infant de- fendants; form 865 partition; bond; necessity of furnishing; when may be supplied nunc ■pro tunc ■ . 996 n partition ; court order appointing guardian ad litem; form 995 petition by infant over fourteen years for appointment of general guardian; form 92 petition for appointment of general guardian of infant under fourteen years of age; form 95 petition for appointment of guardian ad litem for infant defendants in mortgage foreclosure; form • 858 service of summons on infant defendant 105 n special guardian affidavit of proposed guardian as to competency; form 129 special guardian; consent of guardian to act; form 128 special guardian; court order appointing special guardian; form 130 special guardian; duties of 126 n special guardian; petition by infant over fourteen for appointment; form 126 special guardian; report of special guardian; form 132 1280 INDEX GUARDIAN AND WARD—Continiied page testamentary guardian; meaning of term 112 n H HIGHWAYS; use of private road; injunction; recital in injunction order. . . . 503 See Municipal Corporations; Negligence. HUSBAND AND WIFE; separation agreement; assignment of amount due 4 n See Adoption; Domestic Relations Law; Dower. I INCOMPETENT; affidavit on motion to dispense with delivery of sum- mons to lunatic; form 180 court order dispensing with service of summons personally on lunatic; form 181 deed by committee of lunatic; form 1145 form of service of summons on person judicially declared to be incompe- tent for whom committee has been appointed; form 178 order on court's own motion designating person to receive summons on behalf of incompetent when committee has adverse interests; form . 179 See Infants. INDEMNITY; bond on paying lost note; form 1205 INFANT; action against for necessaries; complaint; form 216 affidavit of service of summons on infant under 14; form 174 affidavit of service of summons on infant over 14; form 173 affidavit on motion to designate personto receive summons on behalf of infant under 14; form 175 claim against municipal corporation; time to file claim not extended by infancy 21 n court order designating person upon whom summons must be served on behalf of infant under 14; form 176 general answer by infant submitting rights to protection of court 275 mortgage foreclosure; affidavit on motion to designate person to receive summons on behaK of infant defendants; form 837 mortgage foreclosure; order designating person to receive summons on behalf of infant defendants; form 839 order on court's own motion designating person upon whom summons must be served for infant over fourteen, or other incompetent ; form 177 order on court's own motion designating person to receive summons for infant over 14, or other incompetent when parent or guardian has adverse interests; form 179 partition; order of Surrogate giving leave to infant to bring action in partition; form 994 petition by or on behalf of infant for leave to bring an action in parti- tion; form 990 See Guardian and Ward. INFORMATION AND BELIEF; allegations on in petition by receiver for leave to sue 41 n See Affidavits. INDEX 128] PAGE INJUNCTION; list of forms 470 affidavit on motion for order to show cause in action of interpleader; form 478 affidavit for order to show cause why temporary injunction should not be granted in interpleader action; form of affidavit 478 affidavit on application for order to show cause with temporary stay why injunction should not be granted in interpleader action; form 479 affidavit of service of injunction order; when made by court 506 affidavit of service on a corporation of an injunction order made by a judge; form 505 affidavit of service of injunction order made by a judge on a natural person; form 504 by whom order may be granted 474 n complaint; essential allegations of a complaint 473 n complaint; interpleader action; form of complaint 481 complaint; when complaint is essential on the motion 472 n costs on procuring injunction order 647 discretion of court 471 n may be granted to accompany summons or at any time after the action is commenced 474 n no inherent power in court of equity to grant 470 n notice; may be granted with or without notice 471 n notice of motion for; form 471 notice of motion to vacate injunction order; form 509 order; action to declare bill of sale collateral to a debt, recital in injunc- tion order 501 order; action to set aside transfer; recital in injunction order 501 order; assignee disposing of proceeds of stock claimed by plaintiff; re- cital in injunction order 501 order; conspiracy to injure plaintiff's business; recital in injunction order 497 order; contract in restraint of trade; recital in order. . . .488, 489, 490, 491 order; construction of railroad; recital in injunction order 495 order; corporation; disposal of stock or voting thereon; recital in injunc- tion order 498 order; disclosure of secret processes; recital in order 487 order; disposal of property in action to dissolve corporation; recital in injunction order 500 order; erection of building and constructing switches; recital in injunc- tion order 495 order; forfeiture of stock for non-payment of assessment; recital in in- junction order 502 order; general form of order granting injunction after a hearing either on notice of motion or order to show cause 483 order; interference with another's business under claim of partnership; recital in injunction order 496 order; interference with construction of a building; recital in injunction order 495 order; nuisance; enjoining acts of 486, 487 1282 INDEX INJUNCTION— Coriimued page order; partnership; dissolution agreement; recital in injunction order. . . 494 order; proseciiting of action at law; recital in injunction order 498, 499 order; recital of enjoining portions of injunction orders 485 order; recital of enjoining portions of order enjoining acts of police ..'... 486 order; recital in order in injunction; intimidation by labor union 485 order; removal of advertising signs from New York Subway; recital in injunction order 495 order; removal of fruitstand; recital in injunction order 501 order; reorganizing a corporation; recital in injunction order 498 order; restraining legal proceedings in action to dissolve corporations; recital in injunction order 500 order; restraining water company from disconnecting pipes; recital in injunction order 500 order; restraint of trade; underselling a book contrary to agreement; re- cital in injunction order 502 order; suspension from unincorporated association; recital in injunction order 497 order; trade-mark or unfair trade; recitals in injunction order. .491, 492, 493, 494 order; use of private road; recital in injunction order 503 order; violation of contract; exclusive right to sell book; recital in order 487 order to show cause; forms 474, 476 order to show cause in action of interpleader; form 476 order to show cause; sometimes grants temporary injunction 472 n order to show cause why injunction order should not be vacated; form . . 510 papers required on motion for an injunction 471 n prosecuting action at law; under what circumstances equity will re- strain prosecuting of action 499 n remedy by as contrasted with that by attachment 471 n undertaking on injunction; form 507 vacating; affidavit to secure order to show cause why injunction shoiild not be vacated on original papers; form 512 vacating; order to show cause why injunction should not be vacated; form 510 vacating; order vacating or refusing to vacate preliminary injunction; form 513 vacating; three different motions may be made -. 509 n writ of; abolished 470 n INQUISITION; on writ of inquiry when motion made by judgment in de- fault; form 630 See Default. INSURANCE; accident; death claim by beneficiary named in policy; com- plaint; form 253 fidelity insurance; complaint; form 256 fire insurance; complaint on policy; form 250 INTERLOCUTORY JUDGMENT; matrimonial actions; divorce; form . . . 1189 partition; interlocutory judgment of sale; form 1019 INDEX 1283 INTERLOCUTORY JUDGMENT— Corafewed page partition; interlocutory judgment for actual partition and appointment of commissioners; form 1068 partition; after issues tried before referee ordering actual partition and appointing commissioners; form 1070 INTERPLEADER; affidavit on application for order to show cause with temporary stay; form 479 decree of; form 639 injunction; affidavit on application for order to show cause; form 478 injunction; form of complaint ,' . 481 INTERROGATORIES; to be propounded on commission to take testimony without the state to be used within the state; form 564 See Deposition. J JUDGMENT; list of forms 620 affirmance after appeal to Appellate Division; form 727 after trial before jury; form 636 assignment; form 7 appeal; entering judgment after appeal 709 n authentication of judgment of foreign Justice of the Peace; form 525 confession of; judgment entered by confession; form 622 confession of; statement for judgment by confession ; form 621 decision and findings after trial in mortgage foreclosure case; form 924 decree after trial at special term; form 638 decree in an action to enforce a restrictive covenant in a deed; form .... 641 decree of interpleader; form 639 default; after return of writ of inquiry in action for personal injuries; form 631 default; after service of summons by publication; practice 632 n default; after service of summons on defendant without the state or by publication; form l 634 default; inquisition on writ of inquiry; form 630 default; notice of execution of writ of inquiry; form 629 default; order for judgment; after service of summons by publication; form 632 default; statement and judgment by under Code Civ. Pro., § 420; form . 623 default; under Code Civ. Pro., § 420; costs 623 n deficiency; mortgage foreclosure; request to clerk to docket deficiency judgment; form 964 demand by defendant for notice of execution of reference or writ of in- quiry; form 628 dismissing complaint at trial term; form 635 entry of after jury trial 613 n entry of after jury trial; without notice of taxation of costs 613 n exemplified copy of judgment of other record of another state; form .... 520 exemplified copy of a judgment of a foreign country; form 523 exemplified copy of judgment to be used in another state; form 518 foreclosure of hen on chattel under conditional bill of sale; form 987 1284 INDEX JVDGUE'NT— Continued page general guardian; decree appointing general guardian, form 98 interlocutory; matrimonial actions; divorce; form 1189 interlocutory; matrimonial actions; notice of motion for interlocutory judgment on referee's report; form 1185 leave to sue; action by administrator of deceased judgment creditor. . . 69 n leave to sue; affidavit; form 70 leave to sue; application for permission to serve notice other than per- sonally, affidavit; form 70 leave to sue; failure to secure leave, effect 69 n leave to sue; judgment for alimony in divorce suit 69 n leave to sue on; notice of motion; form 68 leave to sue; order for service of notice of motion other than personally; form 72 leave to sue; order granting leave to sue on judgment; form 73 matrimonial action; divorce; form of final judgment 1193 mortgage foreclosure; final judgment of foreclosure and sale; form. . . . 929. order for judgment and assessment of damages by writ of inquiry on default of defendant; form : 625 partition; final judgment for actual partition; form 1076 partition; final judgment of sale; form 1058 partition; interlocutory judgment after issues tried before referee or- dering actual partition and appointing commissioners; form 1070 partition; interlocutory judgment for actual partition and appointment of commissioners; form 1068 partition; interlocutory judgment of sale; form 1019 partition; referee must follow judgment of sale 1019 n satisfaction of; form : 644 satisfaction; when may be satisfied by attorney 644 n upon report of referee appointed to hear and determine; form 637 writ of inquiry to sheriff on default in tort actions; form 627 JURAT; affidavit; necessity and meaning of jurat 150 n JURISDICTION; when it may be acquired by service of summons without the state or by publication 186 n JURY; judgment after trial before jury; form 636 trial by; peremptory challenges 610 n JUSTICE OF THE PEACE; authentication of judgment of foreign Jus- tice of the Peace; form 525 authentication of transcript from justice's docket; form 517 execution on justice's judgment 665 L LABOR LAW; Employers' Liability Act; form of notice 76 LABOR UNION; intimidation by; recital in injunction on order 485 LANDLORD AND TENANT; list of forms . 1157 assignment of deposit to secure future rent 3 n complaint in action for rent; form 237 INDEX 1285 LANDLORD AND TENANT— Coreimued page ground lease twenty-one years with covenants to build and for renewals; form 1172 guaranty endorsed on lease; form 1165 landlord's agreement; form 1159 lease; farm ; form 1169 lease of flat; form 1116 lease of house; form 1160 lease of house or apartment; form 1163 lease; renewal lease; form 1178 lease; short form 1157 mechanic's lien; complaint for foreclosure of mechanic's lien where con- tract for improvements is made with tenant with consent of land- lord; form of complaint 762 summary proceeding; petition for non-payment of rent; form 1181 summary proceedings; notice to tenant; form 1180 surety; form 1179 surrender of lease; form 1179 tenant's agreement; form 1159 underlease; form 1171 LEASE; assignment; form 15 farm; form 1169 flat; form 1166 furnished house or apartment; form 1163 ground lease 21 years with covenants to build and for renewals; form ... 1 172 guaranty endorsed on lease; form 1165 house; form 1160 power of attorney to lease land; form 1209 renewal; form 1178 short form 1157 surrender of; form 1179 underlease; form 1171 LEAVE TO SUE; list of forms 37 judgment; action by administrator of deceased judgment creditor. . . 69 n judgment; affidavit on motion, form 70 judgment; application for permission to serve notice other than person- ally; form of affidavit ., 70 judgment; effect of omission to secure leave 69 n judgment for alimony in divorce suit 69 n judgment; notice of motion; form 68 judgment; order for service of notice of motion other than personally; form 72 judgment; order granting leave to sue on judgment; form 73 order of Surrogate giving leave to infant to bring action in partition; form 994 petition by or on behalf of infant for leave to bring an action in parti- tion; form 990 poor person; certificate of counselor at law annexed to petition; form ... 65 1286 INDEX LEAVE TO SVE~Coiitmued page poor person; notice of motion when application made after action brought; form 67 poor person; petition, before action brought, form 64 poor person; order when application made before action brought; form . , 66 receiver; affidavit; form 44 receiver; affidavit on motion for permission to sue receiver; form 51 receiver; bond for costs; form 48 receiver; supplementary proceedings; bond for costs upon failure of creditor to make request that action be brought; form 59 receiver in supplementary proceedings; notice of motion for permission to sue; form 54 receiver in supplementary proceedings; order permitting receiver to sue; form 62 receiver in supplementary proceedings; petition by receiver for permis- sion to sue; form , 56 receiver; notice of motion; form 38 receiver; notice of motion for permission to sue receiver; form 50 receiver; order permitting action to be brought against receiver; form . . 53 receiver; order permitting action to be brought by receiver; form 46 receiver; petition; form 40 receiver; when permission should be requested 38 n request by creditor in supplementary proceedings that receiver sue; form 58 LIBEL; examination before trial 546 n LIEN; complaint on foreclosure of lien on chattel under conditional bill of sale; form 983 partition; notice to lienors to present claims; form 1067 LIMITATIONS; claim against municipal corporation, time not extended by infancy of claimant 21 n statute of; answer, form 273 LIMITED PARTNERSHIP; affidavit of pubhcation of notice; form 1221 affidavit to be filed with certificate; form 1219 articles of; form 1218 designation by clerk of the newspaper in which the publication of cer- tificate is to be made ; form 1220 notice to be published; form 1220 See Partnership. LIS PENDENS 203 amending summons and complaint; effect 204 n cancellation; when may be cancelled 204 n failure to serve summons within sixty days after filing; effect 203 n filing notice of pendency without filing complaint is ineffective 204 n filing on behalf of defendant who sets up counterclaim 204 n notice of pendency of action to foreclose mortgage; form 801 notice of pendency of action; when action affects the title to real prop- erty 203 INDEX 1287 LIS PENDENS— Contmued page partition ; action ; form 998 when notice may be filed 204 n LUNATIC; affidavit on motion to dispense with delivery of summons to lunatic; form 180 Court order; dispensing with service of summons personally on lunatic, form 181 deed by committee of; form . 1145 M MALICIOUS PROSECUTION; arrest; what must be shown in affidavit. . 385 n MANAGING AGENT; corporation; who is managing agent upon whom service may be served 165 n MASTER AND SERVANT; breach of contract of employment; com- plaint; form 221 breach of contract of employment; inability to procure other employ- ment; burden of proof pleading 221 n Employers' Liability Act; alleging giving notice in complaint 77 n Employers' Liability Act; blowing out of cylinder head; form 82 Employers' Liability Act ; general form of notice 76 Employers' Liability Act; notice; falling of steel column on employ^; form 78 Employers' Liability Act; notice; falling of stone on excavator; form ... 79 Employers' Liability Act; notice; falling through trap door in floor; form 80 Employers' Liability Act; service of notice by mail; indisputable pre- sumption that notice was received 77 n Employers' Liability Act; time of service of notice 77 n Employers' Liability Act; when action based on common-law liability; notice not necessary 77 n labor unions; intimidation by; recital in injunction order 485 MATRIMONIAL ACTIONS; hst of forms 1183 affidavit of service of summons; form 172 divorce; affidavit on motion for final judgment; form 1191 divorce; certificate of County Clerk as to proceedings had in action on motion for final judgment; form , 1192 divorce; final judgment; form 1193 divorce; findings by court after trial by referee; form 1187 divorce; findings of referee after trial; in action for divorce; form 1183 divorce; interlocutory judgment; form 1189 divorce; notice of motion for final judgment; form 1190 divorce; notice of motion for interlocutory judgment on referee's re- port; form ' 1185 divorce; order confirming referee's report; form 1186 divorce; order of arrest; necessity of complaint showing demand for alimony 410 n divorce; practice when trials before court instead of referee 1192 n 1288 INDEX MATRIMONIAL ACTIOI^S— Continued page judgment for alimony in divorce suit; leave to sue 69 n reference; practice on motion to confirm referee's report 1186 n summons; endorsement; forms 160 MECHANICS' LIENS; list of forms 753 afiidavit on motion to continue mechanics' liens; form 759 answer where defendant demands foreclosure of his lien; form 766 assignment 4 n assignment; form 8 bankruptcy; filing notice of lien after bankruptcy of debtor 753 n complaint; in action to foreclose mechanic's hen where contract for im- provements made with tenant with consent of landlord; form. . . . 762 description of property 756 n filing of lien; when it may be filed 753 n judgment; decree sustaining mechanic's lien in favor of plaintiffs and defendants; form 766 materials actually manufactured but not deHvered 755 n notice; amount of labor performed 754 n notice of mechanic's lien; form / 753 notice of lien under public improvement; form 757 order continuing mechanic's lien; form 761 partnership giving business address of firm 753 n satisfaction of lien; form 776 stating the agreed price and value of materials 755 n stating the amount of materials furnished; rule in relation thereto 754 n stating with certainty the labor performed and to be performed and the materials furnished and to be furnished 755 n verification 756 n MEMBERSHIP CORPORATION; books required 1240 n certificate of incorporation under membership corporation law; form. . 1239 fees for filing papers 1240 n first meeting 1240 n note on organization of membership corporation 1239 n MISTRIAL; withdrawal of juror for purpose of amending pleadings 611 n MONEY HAD AND RECEIVED; complaint; form 236 MORTGAGES; list of forms 783 action to declare bill of sale collateral to a debt; injunction; recital in in- junction order 501 agreement to take assignment of mortgage and to extend same, with new mortgage; form 798 assignment; necessity of recital of assignment of bond, as well as mort- gage 808 n assignment of bond and mortgage with covenant; form 10 assignment of bond and mortgage without covenant; form 12 extension of mortgage with agreement which is in effect a new mortgage; form 790 extension of mortgage with new bond ; form 788 INDEX 1289 MORTGAGES— CoM^mued page foreclosure; abatement and revival; affidavit on motion to revive action as against representatives of deceased party and to strike out, bring in and correct names of parties; form 892 foreclosure; account of receiver of rents; form 827 foreclosure; affidavit of attorney for receiver for an allowance; form .... 832 foreclosure; affidavit of attomej' on motion to require purchaser to com- plete or for a resale; forms ; 942, 946 foreclosure; affidavit of guardian ad lilem as to competency; form 862 foreclosure; affidavit of guardian ad litem for allowance; form 868 foreclosure ; affidavit of mailing of summons pursuant to order for serv- ice by publication against absent and unknown defendants; form . . 856 foreclosure; affidavit of regularity; form 897 foreclosure; affidavit of regularity on motion for judgment; reference to compute and to correct names ; form 901 foreclosure; affidavit of service of motion papers on motion to require purchaser to complete or for a resale; form 947 foreclosure; affidavit of service of notice of application for appointment of guardian ad litem; form 864 foreclosure; affidavit of service of notice of filing of referee's report of sale and notica of motion to confirm same; form 958 foreclosure; affidavit on motion by referee to sell for extra allowance; form 961 foreclosure; affidavit on motion for order for publication of summons as against absent and unknown defendants; form 840 foreclosure; affidavit on motion to bring in new parties; form 876 foreclosure; affidavit on motion to bring in people of state as party de- fendant; form 871 foreclosure; affidavit on motion to confirm referee's report of sale; form 955 foreclosure; affidavit on motion to designate person to receive summons on behalf of infant defendants; form 837 foreclosure; affidavit on motion to direct referee to sell in separate par- cels; form 936 foreclosure; affidavit on motionto set aside order of reference and judg- ment of foreclosure and sale to bring in new parties; form 908 foreclosure; affidavit on motion to strike out parties, bring in parties and correct names of parties; form 882 foreclosure; answer of guardian ad litem; form 867 foreclosure; answer that executor as such is not liable for deficiency as he had no power under will to make mortgage; form 916 foreclosure; appointment of receiver; affidavits to procure order to show cause why receiver should not be appointed; forms 820, 823 foreclosure; appointment of receiver; notice of motion; form 818 foreclosure; appointment of receiver; order to show cause; form: 819 foreclosure; clerk's certificate of no exceptions filed to referee's report of sale; form 957 foreclosure; complaint; in foreclosure of mortgage on real property; form 804 foreclosure; consent of guardian ad litem to act as such; form 861 foreclosure; costs; bill of 934 1290 INDEX MORTGAGES— CoMiinued page foreclosure; decision and findings after trial; form 924 foreclosure; discontinuance; affidavit on motion by plaintiff to discon- tinue; form 906 foreclosure; final judgment of foreclosure and sale; form 929 foreclosure; notice of application for appointment of guardian ad litem; form 863 foreclosure; notice of filing cf referee's report and motion for final judg- ment of foreclosure and sale; form 923 foreclosure; notice of filing of referee's report of sale and of motion to confirm same; form 954 foreclosure; notice of motion for judgment; reference to compute and amending names of parties; form 900 foreclosure; notice of motion to bring in new parties; form 874 foreclosure; notice of motion to bring in people of state as party de- fendant; form 870 foreclosure; notice of motion to direct referee to sell in separate parcels; form . ." 935 foreclosure; notice of motion to require purchaser to complete or for a resale; form 941 foreclosure; notice of motion to strike out parties; bringing in parties and correcting names of parties; foi-m 881 foreclosure; notice of object of action which may be served with the summons; form 802 foreclosure; order appointing guardian ad litem for infant defendants; form 865 foreclosure; order appointing receiver of rents; form 824 foreclosure; order bringing in new parties; form 879 foreclosure; order bringing in people of state as party defendant; form . . 873 foreclosure; order confirming receiver's account and making allowance to receiver's counsel; form 835 foreclosure; order confirming referee's report of sale; form 959 foreclosure; order designating person to receive summons on behalf of infant defendants; form 839 foreclosure; order for publication of summons against absent and un- known defendants; form 854 foreclosure; order for reference to compute and correct names of parties; form , 904 foreclosure; order granting extra allowance to referee to sell; form 96.3 foreclosure; order of discontinuance on motion of plaintiff; form 907 foreclosure; order requiring purchaser to complete or for a resale; form . 948 foreclosure; order reviving action against representatives of deceased party, bringing in, striking out and correcting names of parties; form. 895 foreclosure; order setting aside order of reference and judgment of fore- closure and sale to bring in new parties; form 913 foreclosure; order striking out parties, bringing in parties and correcting names of parties, form 888 foreclosure; order to show cause why extra allowance should not be made to referee to sell; form 960 INDEX 1291 MORTGAGES— Coreimtted page foreclosure; petition for appointment of guardian ctd litem for infant defendants; form 858 foreclosure; receiver; notice of motion for order settling receiver's ac- counts; form 834 foreclosure; receiver's report of sale; form 951 foreclosure; referee's deed in foreclosure; forms 1128, 1138 foreclosure; referee's oath; form 918 foreclosure; referee's report on reference to compute; form 919 foreclosure; referee's summons; form 917 foreclosure; request to clerk to docket deficiency judgment; form 964 foreclosure; sheriff's deed; form 1142 foreclosure; summons and notice as published pursuant to order; form . 857 notice of pendency of action to foreclosure mortgage; form 801 real property; interest, tax, assessment; warranty and receiver's clauses; form 783 release of part of mortgaged premises; form 1151 satisfaction of; form 800 subseqiiently acquired property; assignment 4 n See Chattel Mortgage; Mortgage on Goods and Chattels. MORTGAGE ON CHATTELS; affidavit on writ of seizure; action to fore- close chattel mortgage; form 975 assignment; form 968 foreclosure; complaint 972 foreclosure; writ of seizure; form 979 form 966 refihng 970 n satisfaction; form 969 statement to be appended to copy of chattel mortgage upon refiling; form 970 statement to be refiled in lieu of copy of chattel morttage; form 971 MOTIONS AND ORDERS; hst of forms 368 entry of order; court order does not become effective until it is entered by the clerk 382 n examination of person to be used on motion; affidavit, form 557 cross notice where party against v/hom a motion has been made will ask for affirmative relief; form 371 general form of affidavit to secure order to show cause; form 372 general form of court order 378 general form of judge's order 376 general form of order to show cause , 373 general form of notice of motion. 368 motion to vacate order of arrest; when and where made 414 n new trial; motion for on newly discovered evidence 615 note of issue for motion; form 375 notice of entry to be endorsed on order; form 382 notice of settlement of order to be endorsed thereon; form 375 notice requiring answering affidavits to be served 370 n order for examination of person to be used on motion; form 559 1292 INDEX MOTIONS AND OKB'ERS— Continued page order resettling previous order; form 379 order to show cause; requirement of statement under Rule 37 of the General Rules of Practice 373 n recital in notice of motion about answering affidavits when a notice of motion of ten days is given; form 372 renewing motion for order of arrest where first order denied; aflBdavit of attorney; form 406 MOTIONS ON THE PLEADINGS; list of forms 316 motion for judgment on a counterclaim for failure to reply; affidavit, form 336 motion for judgment on counterclaim for failure to reply; rules govem- , ing motion and relief which may be granted 338 n motion for judgment under § 547; motion can be made only after issue joined 331 n motion for judgment on the pleadings; motion under § 547; when mo- tion waived by failing to demur 331 n motion for judgment on the pleadings; notice of motion for judgment on a counterclaim for failure to reply; form 336 motion for judgment under § 547; neither affidavits, former testimony nor bill of particulars considered 331, 332, 333 n motion for judgment under § 547; order; form 332 notice of motion for judgment on the pleadings under § 547; form 330 motion for judgment on the pleadings as frivolous; practice has become obsolete 334 n notice of motion for judgment on a pleading as frivolous; form 334 notice of motion to separately state and number causes of action or de- fenses; form 317 notice of motion to try a demurrer as a litigated motion; form 339 order granting judgment on counterclaim for failure to reply; form 337 order overruling or sustaining demurrer when demurrer is brought on for trial as a litigated motion; form 340 separately stating and numbering causes of action; affidavit; usually unnecessary 317 n separately stating and numbering causes of action; amount due on con- tract of emplojTnent and damages of breach of contract of em- ployment 318 separately stating and numbering causes of action ; claim for salary and another claim for misappUcation of funds by an officer of corpora- tion 5 318 separately stating and numbering causes of actions; ejectment and non- payment of rent under different leases 318 separately stating and numbering; injury to personal property and in- jury to person from same negligent act 318 separately stating and numbering causes of action; order on motions; form 319 separately stating and numbering causes of action; separate sales of goods 318 INDEX 1293 MOTIONS ON THE PLEADINGS— Conimwed page separately stating and numbering causes of action; several torts con- sisting of independent wrongs 318 separately stating and numbering causes of action; statement of counsel on argument of motion not binding on client 317 n . separately stating and numbering causes of action; where plaintiffs are not all interested in same cause of action 318 striking out as sham; notice of motion; form 329 striking out irrelevant, redundant and scandalous matter; affidavit; form 327 striking out irrelevant, redundant and scandalous matter; order; form . . 328 striking out irrelevant, redundant and scandalous matter; notice of motion; form 325 striking out irrelevant, redundant and scandalous matter; privileged communications to physician 326 n to make more definite and certain; accurate statement of where injury occurred in action against municipal corporation 322 to make more definite and certain; affidavit on motion; form 323 to make more definite and certain; allegations of a compromise in an answer by stating the facts 322 to make more definite and certain; compelling broker to state how owner prevented plaintiff from completing sale of real estate 322 to make more definite and certain; notice of motion; form 321 — to make more definite and certain; order; form 324— to make more definite and certain; specified measure of damages in action for breach of contract of sale of chattels 322 to make more definite and certain ; stating time and place of demand . . . ' 322 - to make more definite and certain; when motion may be made; exten- sion of time without reservation of time to make motion 321 n to make more definite and certain; where an answer sets up matter both as a defense and as a counterclaim 321 to make more definite and certain; whether promissory note made be- fore or after maturity 322 to make more definite and certain; allegations of "a large sum" should be made specific 322 when made at the trial 611 n MUNICIPAL CORPORATION; affidavit of service of summons on; form 163 negligence; failure to properly maintain highways; complaint; form. . . 241 negligence; notice of claim against town for failurB to maintain high- way; form 246 notice of claim against; fist of forms 19 notice of claim against City of Albany for personal injuries; form 29 notice of claim against second class city; form 27 notice of claim against City of Buffalo for personal injuries; form 25 notice of claim against New York City for personal injuries; form 23 notice of claim against town; pleading highway under jurisdiction of highway commissioner 22 n notice of claim against village for injuries to person or property; forms . . 34, 35 notice of claim against; when claimant excused for delay in filing claim 20 n 1294 INDEX MUNICIPAL CORPORATION— Cora^mwerf page notice of claim; commencement of action is not notice 21 n notice of claim; defect not waived by retention of 20 n notice of claim ; defect of notice need not be pleaded by defendant 23 n - notice of claim; discrepancy in stating date of accident 23 n notice of claim; injuries to personal property; notice against New York City; form 24 notice of claim; pleading notice 21 n notice of claim; pleading notice 22 n notice of claim; service by mail insufficient 20 n notice of claim ; substantial compliance with statute necessary 22 n notice of claim; time not extended by infancy of claimant 21 n notice of claim ; villages chartered under special act 35 n notice of claim; villages; filing of notice as condition precedent to bring- ing action 35 n notice of claim; villages; must describe time and place of accident 35 n notice of claim; when plural notices required 21 n notice of claim when plural notices required against New York City. . . 22 n notice of contract claim against New York City; form 19 MUNICIPAL COURT OF THE CITY OF NEW YORK; appeal to Ap- pellate Term; making up record 716 n appeal to Appellate Term ; practice 715 n notice of appeal to Appellate Term from judgment of Municipal Court; form 735 notice of argument in Appellate Term, First Department on an ap- peal from a judgment in Municipal Court; form 740 statement under Rule 4 of the Appellate Term rules on appeal from Municipal Court; form 739 summons ; form 157 summons; reverse side containing affidavit of service and blanks for entries by court; form 158 supplementally proceedings on judgment therein; where held 687 n undertaking on appeal from judgment of Municipal Court; justifica- tion of sureties . .' 736 n undertaking on appeal from judgment of Municipal Court to stay execu- tion ; form 736 MUTUAL ACCOUNTS; assignment where no balance struck 4 n N NECESSARIES; action against infant for; complaint; form 216 NEGLIGENCE; action by administratrix for damages for death of plain- tiif's intestate; complaint; form 238 master and servant; when action based on common-law liability statu- tory notice not necessary 77 n municipal corporatinn; faihire to properly maintain highways; com- plaint; form 241 INDEX 1295 NEGLIGENCE— Conimwed page municipal corporation; notice of claim against town for failure to maintain highway; form 246 See Employers' Liability, Master and Servant. NEGOTIABLE INSTRUMENT; assignment of part of promissory note. . 3 n attachment by assignee of part interest in promissory note 430 n bond; indemnity on paying lost note; form 1205 certified check; affidavit on attachment when check has been assigned; action against foreign corporation; form 452 check; attachment on certified check against foreign corporation; as- signed claim warrant of attachment; form 447 complaint against in action against endorser on check; form 233 complaint in action on check; payee against maker; form 232 complaint on certified check which has been assigned; attachment; form of complaint 450 complaint on partnership note made in partnership name; form 229 complaint on promissory note against maker and endorser; form 231 complaint on promissory note payable to bearer; form 228 complaint on promissory note payable to order of the maker; form 230 promissory note; complaint in action by payee against maker; form .... 227 promissory note; form of complaint in action by payee against maker; statutory form setting forth copy of note; form 226 NEWLY DISCOVERED EVIDENCE; motion for new trial on; affidavit; form 617 motion for new trial on newly discovered evidence 615 motion for new trial on; practice 615n new trial on order granting; form 618 notice of motion for new trial on; form 615 NEW TRIAL; after appeal; costs 648 costs on motion for 647 costs when motion made on special verdict 647 motion therefor and when made 612 n motion for on newly discovered evidence; list of forms 615 newly discovered evidence; affidavit on motion for; form 617 newly discovered evidence; notice of motion for; form 615 newly discovered evidence; order granting; form 618 newly discovered evidence; practice 615 n notice of appeal to Appellate Division from judgment rendered on ver- dict of a jury and order denying motion for a new trial; form 702 order denying motion for a new trial; form 706 NEW YORK CITY; notice of contract claim against New York City; form 19 notice of claim against; when plural notices required 22 n notice of claim for injuries to personal property; form 24 notice of claim for personal injuries; form 23 NON-RESIDENCE; aflSdavit of non-re-sidence of defendant to secure order of arrest under Code Civ. Pro., § 550; form 420 allegation of in support of attachment 430 n 1296 INDEX PAGE NOTE OF ISSUE; motion; form 375 trial term, New York County; form 584 NOTICE; appeal from Municipal Court to Appellate Term; form 735 appeal to Appellate Division from judgment rendered on verdict of jury and order denying motion for a new trial; form 702 appeal to Appellate Division from order; form .- 732 appeal to Court of Appeals from judgment of affirmance; form 728 appeal to Court of Appeals from judgment of reversal and ordering a new trial 728 n argument in Appellate Division on appeal from judgment; form 725 argument in Appellate Term on an appeal from judgment in the Mu- nicipal Court; form 740 argument of appeal in Appellate Division; First Department 706 n argument of appeal in Appellate Term from judgment of the City Court of the City of New York; form 734 argument of appeal in Court of Appeals; form 731 endorsed on pleading upon returning the same for want of a verification or because of faulty verification; form 314 entry of order to be endorsed on order; form 382 execution of writ of inquiry on judgment by default; form 629 injunction; temporary; may be granted with or without notice 471 n Hmited partnership; form of notice to be published 1220 mortgage foreclosure; filing of referee's report of sale; motion to con- firm; form 954 mortgage foreclosure; object of action which may be served with the summons; form 802 partition; notice to honors to present claims; form 1067 settlement of case on appeal; form 723 settlement of order endorsed thereon; form 375 subjoined to summons when served bj"- pubhcation or personally with- out the state 194 surplus money proceedings; claim; form 1089 taxation of costs in partition; form 1044 NOTICE OF APPEARANCE; form 201 NOTICE OF CLAIM; against municipal corporation 19 municipal corporation; action against town alleging jurisdiction of highway commissioner; complaint 22 n municipal corporation; claim against City of Albany for personal in- juries; form 29 municipal corporation; claim against City of Buffalo, for personal in- juries; form 25 municipal corporation; claim against New York City for injury to per- sonal property; form 24 municipal corporation; claim for personal injuries against New York City; form 23 municipal corporation: contract rlaim against New York City; form , . 19 municipal corporation; claim against second class citj'; form 27 INDEX 1297 NOTICE OF CLAIM— Conlinued . page municipal corporation; commencement of action is not notice 21 n municipal corporation ; defect in notice need not be pleaded by defend- ant 23 n municipal corporation; defect not waived by retention 20 n municipal corporation; discrepancy in stating date of accident 23 n municipal corporation; injuries to person or propert}' against village; forms 34, 35 municipal corporation; pleading notice 21 n, 22 n municipal corporation; service by. mail insufficient 20 n municipal corporation, substantial compliance with statute necessary . . 22 n municipal corporation; time not extended by infancy of claimant 21 n municipal corporation; villages; chartered under special acts 35 n municipal corporation; villages; filing notice as condition precedont to bringing action 35 n municipal corporation; villages; must describe time and place of ac- cident 35 n municipal corporation; when claimant excused for delay in filing claim 20 n municipal corporation; when plural notices required 21 n municipal corporation; when plural notices required against New York City 22 n NOTICE OF MOTION; application for bill of particulars before answer; form r 296 application to open default; form 359 arrest; motion to vacate order on papers on which the order of arrest was granted; form 413 arrest; motion to vacate order of arrest when based on affidavits; form 417 attachment; motion to vacate attachment on original papers; form of notice of motion 4o5 bill of particulars; motion for order precluding giving of evidence be- cause of failure to file bill of particulars; form 301 commission to take testimony without the state to be used within the state; form 561 cross notice that a party against whom a motion has been made will ask for affirmative relief; form 371 dismissal for failure to prosecute; form 745 extension of time to plead; form 348 general form of 368 . guardian ad lilem; motion for appointment of when infant under four- teen; form • 117 injunction; form of notice 471 judgment on the pleadings under § 547 of the Code; form 330 leave to sue as poor person; when application made after action brought; form 67 leave to sue on judgment; form 68 matrimonial actions; judgment; notice of motion for final judgment; form 1190 matrimonial actions; motion for interlocutory judgment on referee's re- port; form 1185 1298 INDEX NOTICE OF MOTION— Con/mued page mortgage foreclosure; appointment of receiver; form 818 mortgage foreclosure; motion for judgment; reference to compute and amending names of parties; form 900 mortgage foreclosure; motion to bring in new parties; form 874 mortgage foreclosure; motion to bring in people of state as party de- fendant; form 870 mortgage foreclosure; motion to direct referee to sell in separate par- cels; form 935 mortgage foreclosure; motion to strike out parties, bring in parties and correct names of parties; form 881 mortgage foreclosure; notice of filing of referee's report and motion for final judgment of foreclosure and sale; form 923 mortgage foreclosure; notice of motion to require purchaser to complete or for a resale; form 941 mortgage foreclosure; receiver; motion for order settling receiver's ac^ counts; form 834 motion for judgment on a counterclaim for failure to reply; form 335 motion for judgment on the pleadings as frivolous; notice; form 334 partition; motion for judgment and appointment of referee to take proof and report liens; foiiM 1011 partition; motion to compel purchaser to take title; form 1080 partition; motion to confirm referee's report and Jor interlocutory judgment; form 1018 partition; motion to confirm referee's report of sale; form 1038 partition; sale; application for permission to spend additional sums for advertising property; form 1032 permission to sue receiver; form 50 ^lafeing cause on short cause calendar; notice to place case on short - ' causecalendarinNew York County, under Rule 5, subd. 2, form. . 593 placing case on short cause calendar in New York County under Rule 5, subd. 3; form 595 placing case on short cause calendar in .New York County under Rule 5, subd. 4; form 597 preference on calendar in New York Count}'; when defendant's prop- erty attached; form 590 preference on calendar in New York County when defendant under arrest; form 585 receiver; motion by receiver in supplementary proceedings for permis- sion to sue; form 54 recital as to answering affidavits when inotion of ten days is given; form 372 restoring case to calendar; form 599. retaxation of costs; form ; 654 revival of action and substitution of party plaintiff after death of party; form 749 separately stating and numbering causes of action; form 317 striking out irrelevant, redundant and scandalous matter; form 325 striking out pleading as sham ; form 329 surplus money proceeding; filing of referee's report and motion to con- firm report; form 1094 INDEX 1299 NOTICE OF MOTlOi^— Continued page surplus money proceeding; motion for reference; form 1086 to make pleading more definite and certain; form 321 trying demurrer as a litigated motion; form 339 vacation of injunction order; form '^09 NOTICE OF PENDENCY OF ACTION; foreclosure of mortgage; form 801 See Lis Pendens. NOTICE OF TRIAL; defendant's; form 583 plaintiff's form 581 NOTICE TO PRODUCE; distinction between and subpoena duces tecum m&n form : 608 NUISANCE; injunction; order enjoining acts of 486, 487 o OATH; commissioners in partition; form 1074 referee; partition action; form 1026 ORDER; adoption of minoi-s; form 1102 appeal from; service of papers and briefs on appeal in various Ap- pellate Divisions ^ 713 n appeal ; order of affirmance by Appellate Division ; form 726 arrest; form 399 arrest in action for fraud; form 384 arrest; when grounds therefor depend on extrinsic facts; form 409 attachment; vacating or refusing to vacant warrant of attachment; form 468 bill of particulars; form 298 court; general form of 378 court order designating person upon whom summons must be served on behalf of infant under 14; form 176 court order dispensing with service of summons personally on lunatic; form 181 court order does not become effective until it is entered by the court .... 382 n court order on court's own motion designating person upon whom sum- mons must be served on behalf of infant over 14, or other incom- petent; form 177 court order opening default in pleading; form 364 denying motion for a new trial; form 706 difference between court order and judge's order 115 n discontinuance of action on stipulation; form 742 discontinuance on application of plaintiff; when made ex parte; form . . . 743 discovery and inspection ; with alternative order to show cause; form . . . 677 dismissing complaint; for failure to prosecute, or in the alternative, giv- ing the plaintiff the right to proceed upon terms; form 747 distinction between judge's order and court order 376 n examination of party before trial; forms 549, 552 examination of person not a party before trial; form 544 examination of person to be used on motion; form 559 1300 INDEX ORDER — Continued page examination of witness; within the state to be used without the state; form of order 573 execution against executor or administrator; form of order for issuance of citation 681 execution against executors or administrators; form of order permitting issuance of 683 execution against wages or income from trust fund; form 670 granting extension of time to plead on notice; form 352 granting judgment on counterclaim for failure to reply; form 337 guardian ad litem; court order appointing guardian ad litem of infant under fourteen; form 115 guardian ad litem; court order appointing guardian ad litem for infant under fourteen; form 122 guardian ad litem; judge's order appointing guardian ad litem for infant over fourteen; form 110 guardian ad litem; judge's order appointing guardian ad litem of infant under fourteen; form 116 guardian and ward; court order appointing guardian ad litem for infant over fourteen; form ^ 109 guardian and ward; court order appointing guardian ad litem in parti- tion action; form 995 guardian and ward; mortgage foreclosure; order appointing guardian ad litem for infant defendants; form 865 injunction; action to declare bill of sale collateral to a debt; recital in injunction order 501 injunction; action to set aside transfer; recital in injunction order 501 injunction; assignee disposing of proceeds of sale of stock claimed by plaintiff; recital in injunction order 501 injunction; construction of railroad; recital in injunction order 495 injunction; conspiracy to injure plaintiff's business; recital in injunc- tion order 497 injunction; contract in restraint of trade; recital in injunction order. . 488, 489, 490, 491 injunction; corporation; disposal of stock or voting thereon; recital in injunction order 498 injunction; disclosure of secret processes; recital in injunction order. . . . 487 injunction; disposal of property in action to dissolve corporation; recital in injunction order 500 injunction; erection of building and additional switches; recital in in- junction order 495 injunction; forfeiture of stock for non-payment of assessment; recital in injunction order 502 injunction; general form of order granting injunction after hearing either on notice of motion or order to show cause 483 injunction; interference with another's business under claim of partner- ship; recital in injunction order 496 injunction; interference with construction of a building; recital in in- junction order 495 injunction; nuisance; enjoining acts of . . . 486, 487 INDEX 1301 ORDER—Continued . page injunction; partnership; dissolution agreement; recital in injunction order 494 injunction; prosecution of action at law; recital in injunction order. . 498, 499 injunction; recital in injunction order enjoining acts of police 486 injunction; recital of enjoining portions of injunction orders 485 injunction; recital of enjoining portions of injunction orders; intimida- tion by labor union 485 injunction; removal of advertising signs from New York Subway; re- cital in injunction order 495 injunction; removal of fruit stand; recital in injunction order 501 injunction; reorganizing a corporation; recital in injunction order 498 injunction; restraining legal proceedings in action to dissolve corpora^ tions; recitals in injunction order 500 injunction; restraining water company from disconnecting pipes; re- cital in injunction order , 500 injunction; restraint of trade; underselling a book contrary to agree- ment; recital in injunction order 502 injunction; suspension from unincorporated association; recital in in- junction order 497 injunction; trade-mark or unfair trade; recital in injunction order. . . . 491, 492, 493, 494 injunction; use of private road; recital in injunction order 503 injunction; vacating or refusing to vacate preliminary injunction; form 513 injunction; violation of contract; exclusive right to sell book; recital in order 487 judge's; general form of 376 judge's order extending time to plead on ex parte application; form. . . . 347 judgment and assessment of damages by writ of inquiry on default of defendant; form of order for 625 judgment on default after service of summons by publication; form .... 632 leave to sue on judgment; order granting; form 73 leave to sue on judgment; service of notice of motion otherwise than personally; form 72 matrimonial actions confirming referee's report ; form 1186 mortgage foreclosure; appointing receiver of rents; form 824 mortgage foreclosure; bringing in new parties; form 879 mortgage foreclosure; bringing in people of state as party defendant; form 873 mortgage foreclosure; confirming receiver's account and making allow- ance to receiver's counsel; form 835 mortgage foreclosure; confirming referee's report of sale; form 959 mortgage foreclosure; designating person to receive summons on behalf of infant defendants; form 839 mortgage foreclosure; directing referee to sell in separate parcels; form . 939 mortgage foreclosure; discontinuance of action on motion of plaintiff; form 907 mortgage foreclosure; granting extra allowance to referee to sell 963 mortgage foreclosure; publication of summons against absent and un- known defendants; form 854 1302 INDEX ORDER — Conlimied page mortgage foreclosure; reference to compute and correcting names of parties; form 904 mortgage foreclosure; requiring purchaser to complete or for a resale; form 948 mortgage foreclosure; reviving action against representatives of de- ceased party; bringing in, striking out and correcting names of parties; form 895 mortgage foreclosure; setting aside order of reference and judgment of foreclosure and sale to bring in new parties; form 913 mortgage foreclosure; striking out parties, bringing in parties and cor- recting names of parties; form 888 motion for judgment on the pleadings under § 547; form 332 motion to continue mechanic's lien; form 761 motion to strike out irrelevant, redundant and scandalous matter; form 328 new trial on newly discovered evidence; form of order 618 notice of appeal to Appellate Division from order; form 732 on court's own motion designating persons to receive summons on be- half of infant or incompetent when guardian or committee has ad- verse interests; form 179 overruling or sustaining demurrer when demurrer is brought on for trial as litigated motion; form 340 partition; awarding possession in the nature of a writ of assistance; form 1079 partition; confirming referee's report of sale; form 1042 partition; order for judgment and appointing referee to take proof and report Hens; form 1015 partition; requiring purchaser to complete purchase; form 1083 partition; Surrogate's order giving leave to infant to bring action in par- tition; form 994 permitting plaintiff to sue as poor person; when application made be- fore action brought; form 66 physical examination of plaintiff; form 556 precluding giving of testimony for failure to file bill of particulars; form 305 preferring case on calendar in New York County when defendant's prop- erty attached; form 592 receiver; leave to sue; order permitting action to be brought by re- ceiver ; form 46 receiver; order permitting action to be brought against receiver; form . . 53 resettling previous order; form 379 restoring case to calendar; form 601 reviving action after death of plaintiff and substituting representatives of deceased as plaintiffs; form 751 security for costs; form 658 separately stating and numbering causes of action; order requiring; form 319 service of summons by publication or personally without the state; form 192 special guardian; court order appointing special guardian; form 130 substituted service of summons on resident, natural person corporation or joint-stock associiition; form 184 INDEX 1303 ORDER — Continued page substitution of attorneys on consent; form 1201 supplementary proceedings; order for examination of judgment debtor before return of execution; form 689 supplementary proceedings; examination of judgment debtor after re- turn of execution; form 692 supplementary proceedings; examination of third person as to property of judgment debtor; form of order 695 supplementary proceedings permitting receiver to sue; form 62 surplus money proceeding; order confirming referee's report; form 1095 to make pleading more definite and certain; form 324 vacating or refusing to vacate order of arrest; form 419 ORDER TO SHOW CAUSE; application for bill of particulars before an- swer; form 295 arrest; why order of arrest should not be vacated when motion made on original papers; form 416 attachment; motion to vacate attachment on original papers; form of order to show cause 466 general form of 373 general form of affidavit to secure order to show cause 372 injunction; action of interpleader; form 476 injunction order may grant temporary injunction . . . , 472 n injunction; temporary; form of order with temporary injunction 474 mortgage foreclosure; motion for appointment of receiver; form 819 mortgage foreclosure; motion for extra allowance to referee to sell; form 960 motion for extension of time to plead; form 349 motion to open default in pleading; form 363 statement required by Rule 37 of the General Rules of Practice 373 n supplementary proceedings; why attachment should not issue against judgment debtor; form 699 why injunction order should not be vacated; form 510 P PARTIES; mortgage foreclosure; affidavit of regularity on motion for judg- ment, reference to compute and to correct names; form 901 mortgage foreclosure; affidavit on motion to bring in new parties; form 876 mortgage foreclosure; affidavit on motion to bring in people of state as party defendant; form 871 mortgage foreclosure; affidavit on motion to revive action; to bring in, strike out and correct names of parties; form 892 mortgage foreclosure; affidavit on motion to set aside order of reference and judgment of foreclosure to bring in new parties; form 908 mortgage foreclosure; affidavit on motion to strike out parties, bring in parties and correct names of parties; form 882 mijrtgage foreclosure; notice of motion for judgment; reference to com- pute and amending names of parties; form 900 mortgage foreclosure; lotice of motion to bring in new parties; form. . . 874 1304 INDEX PARTIES— Con^iwMed page mortgage foreclosure; notice of motion to bring in people of state as party defendant; form 870 mortgage foreclosure; notice of motion to strike out parties, bring in parties and correct names of parties; form 881 mortgage foreclosure; order bringing in new parties; form 879 mortgage foreclosure; order bringing in people of state as party de- fendant; form 873 mortgage foreclosure; order for reference to compute and correcting names of parties; form 904 mortgage foreclosure; order reviving action against representatives of deceased party, bringing in, striking out and correcting names of parties; form 895 mortgage foreclosure; order setting aside order of reference and judg- ment of foreclosure and sale to bring in new parties; form 913 mortgage foreclosure; order striking out parties, bringing in parties and correcting names of parties; form 888 PARTITION; list of forms 989 affidavit of regularity on moving for judgment on default; form 355 affidavit of regularity on motion for judgment and appointment of referee to take proof and report liens; form 1012 affidavit on motion to compel purchaser to take title; form 1081 affidavit on motion to confirm referee's report and for interlocutory judgment; form 1025 affidavit to procure writ of assistance; form 1078 commissioner's report; form 1075 complaint; forms 999, 1003 costs; affidavit for extra allowance; form 1046 costs; bill of 1044 costs ; notice of taxation ; form 1044 final judgment for actual partition; form 1076 final judgment of sale; form 1058 final report of distribution by referee; form 1064 guardian ad lilem; bond of guardian ad litem in partition action; form. . 997 guardian ad lilem; bond of; when may be supplied nunc pro tunc 996 n guardian ad litem; court order appointing guardian ad litem; form 995 interlocutory judgment; after issues tried before referee; ordering actual partition and appointment of commissioners; form 1070 interlocutory judgment for actual partition and appointment of com- missioners ; form 1068 interlocutory judgment of sale; form 1019 liens; notice to lienors to present claims; form 1067 lis pendens; notice of; form 998 motion to confirm referee's report and for interlocutory judgment; form 1018 notice of motion to compel purchaser to take title; form 1080 notice of motion for judgment and appointment of referee to take proof and report liens; form 1011 notice of motion to confirm referee's report of sale; form 1038 oath of commissioners; form 1074 INDEX 1305 PARTITION— Continued page order confirming referee's report of sale; form 1042 order for judgment and appointing referee to take proof and report liens; form 1015 order of Surrogate giving leave to infant to bring action in partition; form 994 order requiring purchaser to complete purchase; form 1083 petition by or on behalf of infant for leave to bring an action in parti- tion; form 990 referee's deed in partition; forms 1130, 1140 referee's oath; form 1026 referee's report; form 1027 referee's report of sale; form 1039 report of commissioners; form 1075 sale; advertising; affidavit on motion to authorize spending of additional sums for advertising; forms 1033, 1034 sale; advertising; notice of motion to spend additional sums for ad- vertising property; form 1032 sale; referee must follow judgment 1019 n writ of assistance; order awarding possession in the nature of a writ of assistance; form 1079 PARTNERSHIP; list of forms 1214 acknowledgment by one partner of firm; form 145 agreement to continue partnership endorsed on original articles; form 1217 articles of co-partnership; form 1214 articles of limited copartnership; form 1218 assignment for benefit of creditors; form 1107 certificate of continuation of partnership in partnership name when one of the partners withdraws ; form 1222 dissolution agreement; injunction; recital in injunction order 494 dissolution of partnership endorsed on original articles; form 1217 interference with another's business under claim of partnership; injunc- tion; recital in injunction order 496 limited; affidavit of publication of notice; form 1221 hmited; affidavit to be filed with certificate; form 1219 limited; notice to be published; form 1220 mechanics' liens; filing notice of lien by partnership; giving address of partnership place of business 753 n PARTY WALL AGREEMENT; form 1155 PATENT; assignment; form 16 assignment before granted; form 17 PAYMENT; answer; form 274 PENALTY; action by private person; certificate of service of summons by sherifT; form 171 action for; indorsement of summons; form ^ 160 PERSONAL INJURIES; judgment after return of writ of inquiry in ac- tion for personal injuries; form 631 1306 INDEX PAGE PETITION; adoption of minors; form 1099 by receiver for leave to sue; allegations on information and belief. ... 41 n discovery and inspection; form of petition 574 execution against executors and administrators; firm of petition on application 679 guardian ad litem; application by general or testamentary guardian for appointment of guardian ad litem for infant under fourteen; form . . Ill guardian ad litem; by relative or friend for appointment of guardian ad litem of infant under fourteen; form 119 guardian and ward ; application for appointment of guardian ad litem for infant defendants in mortgage foreclosure; form 858 guardian and ward; appointment of general guardian of infant, under fourteen; form 95 guardian and ward; by infant over fourteen years of age for appoint- ment of general guardian; form 92 leave to sue as poor person; petition before action brought; form 64 partition; application on behalf of infant for leave to bring an action in partition; form 990 receiver; in supplgmentary proceedings, permission to sue; form 56 receiver; leave t^ue; form 40 special guardian !,'petition for appointment of by infant over fourteen; form 126 summary proceeding; landlord and tenant; non-payment of rent; form 1181 when affidavit may be made in place of petition 990 n PHYSICAL EXAMINATION. See Deposition. PLEADING; amendment at trial; withdrawal of juror 611 n motions on at the trial 611 n notice endorsed on pleading or returning the same for want of a verifi- cation or because of a faulty verification; form 314 notice of claiiji against municipal corporation; defect of notice need not be pleaded by defendant 23 n notice of claim against municipal corporation; necessity of pleading. 21 n, 22n stipulation extending time to answer, demur or otherwise move as to complaint; form 343 See Complaint; Answer; Reply; Bill of Particulars; Verifica- tion; Motions on the Pleadings. POLICE; enjoining acts of; recital in injunction order 486 POOR PERSON; leave to sue; certificate of counselor annexed to petition; form 65 leave to sue; notice of motion when application made after action brought; form 67 leave to sue; when order permitting application made before action brought; form 66 leave to sue; petition, before action brought; form 64 POWER OF ATTORNEY; list of forms 1207 acknowledgment by person conveying by power of attorney; form 145 contained in assignment; form 1 INDEX 1307 POWER OF ATTORNEY —Continued page general letter of attorney in fact in bankruptcy when creditor is not represented by attorney at law; form 1208 leasing or selling land; form 1209 revocation of power of attorney; form 1210 short form 1207 PRIVATE ROAD; use of; injunction; recital in injunction order 603 PRIVILEGED COMMUNICATION; examination before trial 547 n physician; striking out privileged communications contained in plead- ing 326n PROMISSORY NOTE; assignment of portion of 3 n bond of indemnity on paying lost note; form 1205 See Negotiable Instruments. PROSPECTIVE DAMAGES. See Damages. PROXY; corporation; to vote at meeting of stockholders; form 1239 PUBLICATION; affidavit of publication of notice of limited partnership; form : 1221 designation by clerk of newspaper in wych publication of certificate of limited partnership is to be made; form 1220 expenses of; when allowed as costs 649 limited partnership; notice to be published; form 1220 R RAILROADS; construction of; injunction; recital in injunction order 495 erection of building and additional switches; injunction; recital in in- junction order 495 injunction; enjoining maintenance of switch as a, nuisance; recital in order 487 REAL PROPERTY; affidavit of title; form 1153 agreement for exchange of property; form 1119 agreement for sale of property; form 1115 assignment of sheriff's certificate of sale endorsed on certificate; form . . . 1149 costs; searches afltecting property ; when certified by title insurance com- pany 649 deed deed deed deed deed deed deed deed deed deed deed deed administrator's form 1132 bargain and sale; form 1124 committee of lunatic; form 1145 executor's; form 1126 guardian's; form 1136 New York short form with full covenants and warranty; form .... 1122 quit claim ; form ^ 1125 referee's deed in foreclosure; forms 1128, 1138 referee's deed in partition; forms 1130, 1140 sheriff's deed in mortgage foreclosure; form 1142 sheriff's deed on sale under an execution; form 1143 water course; form 1147 1308 INDEX REAL PliOPERTY— Continued page mortgages and foreclosure thereof; list of forms 783 notice of pendency of action when title to real property is affected 203 power of attorney to lease or sell land; form 1209 release of dower; form 1149 release of dower by endorsement on a deed; form 1150 release of part of mortgaged premises; form 1151 restrictive covenant; deed; complaint in action to enforce; form 259 restrictive covenant; form of in deed 641 n restrictive covenants; decree in an action to enforce a restrictive cove- nant in a deed; form 641 right of re-entry on land; assignment 4 n sheriff's certificate of sale; form 1148 title to; list of forms 1115 RECEIVER; acknowledgment by 143 assignment of fees 4 n leave to sue; affidavit; form 44 leave to sue; affidavit on motion for permission to sue receiver; form .... 51 leave to sue; bond foi' costs; form 48 leave to sue; notice of motion; form 38 leave to sue; order permitting 'action to be brought against receiver; form 53 leave to sue; order permitting action to be brought by receiver; form ... 46 leave to sue; petition; form : 40 leave to sue receiver; notice of motion; form 50 leave to sue when permission should be requested 38 n mortgage foreclosure; account of receiver of rents; form 827 mortgage foreclosure; affidavit of attorney for receiver for an allow- ance; form 832 mortgage foreclosure; affidavits to procure order to show cause why receiver should not be appointed; forms 820, 823 mortgage foreclosure; notice of motion for appointment 818 mortgage foreclosure; notice of motion for order settling receiver's ac- counts; form 834 mortgage foreclosure; order appointing receiver of rents ; form 824 mortgage foreclosure; order confirming receiver's account and making aUowance to receiver's counsel; form 835 mortgage foreclosure; order to show cause; on motion for; form 819 supplementary proceedings; bond for costs upon failure of creditor to make request that receiver sue; form 59 supplementary proceedings; notice of motion by receiver for permission to sue; form 54 supplementary proceedings; orderpermittingreceiver to sue;form 62 supplementary proceedings; petition by receiver for permission to sue; form 56 supplementary proceedings; request by creditor that action be brought by receiver; form 58 RECORD; exemplified copy of a judgment or other record of another state; form 520 INDEX 1309 PAGE REFEREE; acknowledgment by; form , 143 judgment upon report of referee appointed to hear and determine; form , 637 subpoena; form 603 REFERENCE; matrimonial actions; findings by court after trial before referee; form 1187 matrimonial actions; findings of referee after trial in action for divorce; form 1183 matrimonial action; notice of motion for interlocutory judgment on referee's report; form 1185 matrimonial actions; order confirming referee's report; form 1186 matrimonial actions; practice on motion to confirm referee's report, . . . 1186 n mortgage foreclosure; affidavit of regularity on motion for judgment; reference to compute and to correct names; form 901 mortgage foreclosure; affidavit of service of notice of filing referee's re- port of sale and notice of motion to confirm same; form 958 mortgage foreclosure; affidavit on motion by referee to sell for extra allowance; form 961 mortgage foreclosure; affidavit on motion to confirm referee's report of sale; form 955 mortgage foreclosure, affidavit on motion to set' aside order of reference and judgment of foreclosure and sale to bring in new parties; form 908 mortgage foreclosure; clerk's certificate of no exceptions filed to referee's report of sale; form 957 mortgage foreclosure; motion to direct referee to sell in separate parcels; form 936 mortgage foreclosure; notice of filing for final judgment of foreclosure and sale; form 923 mortgage foreclosure; notice of filing of referee's report of sale and of motion to confirm same; form 954 mortgage foreclosure; notice of motion for judgment; reference to com- pute and amending names of parties; form 900 mortgage foreclosure; notice of motion to referee to sell in separate parcels; form 935 mortgage foreclosure; order confirming referee's report of sale; form . . . 959 mortgage foreclosure; order directing referee to sell in separate parcels; form 939 mortgage foreclosure; order for reference to compute and correcting names of parties; form 904 mortgage foreclosure; order granting extra allowance to referee to sell; form 963 mortgage foreclosure; order setting aside order of reference and judg- ment of foreclosure and sale to bring in new parties; form 913 mortgage foreclosure; order to show cause why extra allowance should not be made to referee to sell; form 960 mortgage foreclosure; referee's deed; forms 1128, 1138 mortgage foreclosure; referee's oath; form 918 mortgage foreclosure; referee's report on reference to compute; form . , . 919 1310 INDEX REFERENCE— Con/inwed page mortgage foreclosure; referee's report of sale; form 951 mortgage foreclosure; referee's summons; form 917 partition; affidavit of regularity on motion for judgment and appoint- ment of referee to take proof and report liens; form 1012 partition; affidavit on motion to confirm referee's report and for inter- locutory judgment; form 1025 partition; final report of distribution by referee; form 1064 partition; interlocutory judgment after issues tried before referee order- ing actual partition and appointing commissioners; form 1070 partition; notice of motion for judgment and appointment of referee to take proof and report liens; form 1011 partition; notice of motion to confirm referee's report and for inter- locutory judgment; form 1018 partition; notice of motion to confirm referee's report of sale; form 1038 partition; oath of referee; form 1026 partition; order confirming referee's report of sale; form 1042 partition; order for judgment and appointing referee to take proof and report liens; form 1015 partition; referee must follow judgment of sale 1019 n partition; referee's deed; forms 1130, 1140 partition; referee's report of sale; form 1039 partition; report of referee; form 1027 referee's fee; when allowed as costs 647 supplementary proceedings; oath of referee 685 n surplus money proceeding; affidavit on motion; form 1087 surplus money proceeding; notice of motion; form 1086 surplus money proceeding; notice of filing of referee's report and of mo- tion to confirm; form . . , '. 1094 surplus money proceeding; order confirming referee's report; form 1095 surplus money proceeding; referee's report; form 1096 surplus money proceeding; referee's summons; form 1093 surplus money proceedings; when ordered 1085 n REGULARITY; affidavit of in mortgage foreclosure; form 897 See Default. REI,EASE; general; form 1212 REMAINDERMAN; assignment of income due to intermediate remainder- man 3 n assignment of vested contingent remainder 4 n RENEWAL LEASE; form 1178 RENEWAL OF MOTION; affidavit of attorney on renewal of motion for order of arrest; when first order denied; form 40t) Hee Motions and Orders. RENT; complaint in action for; form 237 Sep Landlord and Tenant. REPLEVIN ; list of forms 777 aflndavit and requisition on replevin; form 779 INDEX 1311 'REPLEVm— Continued page complaint; form 77n examination to frame complaint '. 546 7 undertaking on replevin; form 780 KEPLY; form 277 motion for judgment on a counterclaim for failure of plaintiff to reply; notice of motion; form 335 motion for judgment on a counterclaim for failure to reply; rules gov- erning motion and relief which may be granted 338 n when ordered although no counterclaim contained in answer 277 n See Demurrer. RESTRAINT OF TRADE; assignment of contract 4 n contract; injunction; recital in injunction order 488, 489, 490, 491 disclosure of secret processes; injunction; recital in injunction order. . . 487 exclusive right to sell book; viplation of contract; injunction; recital in injunction order 487 exclusive right to sell product, assignment 3 n underselling a book contrary to agreement; injunction; recital in injunc- tion order 502 ' S SALES; affidavit to procure warrant of seizure in action to foreclose hen on chattel under conditional bill of sale; form 985 bill of sale; form 981 breach of contract for sale of chattels; seller against purchaser: com- plaint; form 208 breach of contract for sale of personal property; purchaser against seller; complaint; form 209 conditional; foreclosure of lien on chattel under conditional bill of sale; complaint; form 983 conditional; foreclosure of lien on chattel under conditional bill of sale; form of ^ judgment 987 implied warranty in sale of deeds; complaint; form 212 mortgage foreclosure; affidavit on motion to confirm referee's report of sale; form 955 mortgage foreclosure; affidavit on motion to direct referee to sell in separate parcels; form 936 mortgage foreclosure; clerk's certificate of no exceptions filed to referee's report of sale ; form 957 mortgage foreclosure; notice of motion to direct referee to sell in sep- arate parcels; form 935 mortgage foreclosure; order confirming referee's report of sale; form. . . 959 mortgage foreclosure; order directing referee to sell in separate parcels; form 939 mortgage foreclosure; order granting extra allowance to referee to sell; form 963 mortgage foreclosure; order to show cause why extra allowance should not be made to referee to sell; form 960 1312 INDEX SALES— Continued page mortgage foreclosure; referee's report of sale; form 951 partition; advertising; affidavit on motion to authorize spending of additional sums on advertising; forms 1033, 1034 partition; advertising; notice of motion on application to spend addi- tional sums for advertising property; form 1032 partition; final judgment of sale; form 1058 partition; interlocutory judgment; form 1019 partition; referee must follow judgment in making sale 1019 n partition; notice of motion to confirm referee's report of sale; form. . . . 1038 partition; order confirming referee's report of sale; form 1042 partition; referee's report of sale; form 1039 warranty; breach of; necessity of pleading notice 215 n SATISFACTION; chattel mortgage; form 969 judgment; form 644 judgment; when may be satisfied by attorney 644 n mechanic's lien; form 776 mortgage; form 800 SECOND CLASS CITY; notice of claim for injuries to person or property; form 27 SECRET PROCESSES; disclosure of; injunction; recital in injunction 487 SECURITY FOR COSTS; list of forms 646 order requiring security; form 658 undertaking; form 659 when allowed 656 SEPARATION AGREEMENT; husband and wife; assignment of amount due on separation agreement 4 n SERVICE OF PAPERS OTHER THAN SUMMONS; list of forms 197 affidavit of service of injunction order, made by judge, on a natural per- son; form 504 affidavit of service of injunction order; when made by court; form 606 affidavit of service of order for examination before trial; form 653 affidavit of service of orders for discovery and inspection ; form 679 affidavit of service of paper other than summons on an attorney; form. 197 affidavit of service on corporation of an injunction order made by a judge; form 505 affidavit on motion for leave to sue on judgment, with prayer for per- mission to serve notice other than personally; form 70 by whom made 200 n mortgage foreclosure; affidavit of service of motion papers on motion to require purchaser to complete or for a resale; form 947 affidavit of service of notice of filing referee's report of sale and notice of motion to confirm same; form 958 motion for leave to sue; order for service of notice otherwise than per- sonally; form 72 municipal corporation; claim against; service by mail insufficient 20 n INDEX 1313 SERVICE OF PAPERS OTHER THAN SUMMONS— Contowed page supplementary proceedings; affidavit of service of order in supplemen- tary proceedings; form 696 when may be made by mail 197 n when should be made personally 200 h SERVICE OF SUMMONS. See Summons; Affidavit. SHAM PLEADING; motion to strike out 329 SHERIFF; acknowledgment by; form 143 acknowledgment by undersheriff in name of sheriff; form 144 assignment of sheriff's certificate of sale endorsed on certificate; form ... 1 149 certificate of sale under an execution; form 1148 certificate of service of summons; form 162 certificate of service of summons in action by private person for penalty of forfeiture; form 171 deed by in mortgage foreclosure cases; form. , . . , 1142 deed on sale under an execution; form ' . . 1143 fees of for returning and entering an execution; when allowed as costs. . 649 inquisition on writ of inquiry on motion made for judgment on default; form 630 writ on inquiry to sheriff on default in tort actions; form 627 SPECIAL GUARDIAN. See Guardian and Ward. SPECIAL PARTNERSHIP. See Limited Partnership; Partnership. SPECIAL TERM; decree after trial at special term; form 638 See Motions and Orders; Trial. STATE; contract with; assignment ; . . . 4 n verification of pleading on behalf of People of State by officer having knowledge of facts; form 314 STATUTE OF LIMITATIONS; answer; form. . , 273 STIPULATION; appeal; papers on appeal from an order to the Appellate Division in lieu of certification by the clerk; forpi 733 discontinuance of action; form 741 extending time of appellant to serve proposed case on appeal; form .... 710 extending time to answer, demur or otherwise move to complaint; form 343 extension of time; effect on right to make motion to make pleading more definite and certain 321 n waiving certification of return of appeal to Court of Appeals; form. . . . 731 STOCK; corporations; forfeiture of stock for non-payment of assessment; injunction; recital in injunction order 502 See Corporations. STOCKHOLDER; action by against corporation and directors for waste; notice; form 89 See Corporations. action against directors for waste; necessity of notice to directors and corporation 89 n ' personal liability for wages; form of notice 88 1314 INDEX PAGE STREETS; incumbrances; removal of fruit stand; injunction; recital in in- junction order 501 SUBPCENA; list of forms 602 affidavit of service of subpoena; form 606 by whom signed 602 n examination of witness within the state to be used without the state; order for issuance of subpoena; form 573 general form 602 judge's form 604 referee; form 603 witness fees; amount thereof 606 n SUBPCENA DUCES TECUM; distinction between and notice to produce. 608 n when served , 605 n form 605 SUBSEQUENTLY ACQUIRED PROPERTY; right of mortgagee; assign- ment 4 n SUBSTITUTION; attorneys; consent to substitution; form 1199 attorneys; the right of client to substitute attorney 1199 n order of substitution of attorneys on consent; form 1201 SUMMARY PROCEEDING; landlord and tenant; notice to tenant; form. 1180 landlord and tenant; petition for non-payment of rent; form 1181 SUMMONS; hst of forms 153 action for penalty; endorsement of summons; form 160 affidavit of mailing of summons and complaint and notice pursuant to order; form 195 affidavit of publication of summons and notice; form 194 affidavit of service of summons on municipal corporation; form 163 affidavit of service on an adult person within the state; form 161 affidavit of service on domestic corporation; form 162 affidavit of service on foreign corporation; form 164 affidavit of service on infant over 14; form 173 affidavit of service on infant under 14; form 174 affidavit of service on person judicially declared to be incompetent for whom committee has been appointed; form '. 178 affidavit of service on summons on defendant personally without the state; form 196 certificate of service of summons by sheriff in action by a private person for penalty or forfeiture; form 171 certificate of sheriff of service of summons; form 162 affidavit on motion for order designating person to receive summons on behalf of an infant under 14; form 175 affidavit on motion for order for service of summons by publication or personally without the state; form 186 affidavit on motion to dispense with delivery of summons to lunatic; form 180 INDEX 1315 SUMMONS— Cowimued page affidavit to procure substituted service of summons on resident of the state; form 182 City Court of the City of New York; form 156 court order designating person upon whom summons must be served on behalf of infant under 14, form 176 court order dispensing with service of summons personally on lunatic; form 181 endorsement of as to county in which trial is desired 154 n failure to serve within sixty days after filing lis pendens; effect 203 n matrimonial action; affidavit of service; form 172 matrimonial actions; endorsement; form 160 mortgage; foreclosure; notice of object of action which may be served with summons; form 802 Municipal Court of the City of New York; form 157 Municipal Court of the City of New York ; reverse side containing affi- davits of service of service and blanks for entries by the court; form 158 notice subjoined to the summons when served by publication or person- ally without the state; form 194 order for service of summons by publication or personally without the state; form 192 order for substituted service on resident, natural person or corporation or joint-stock association; form 184 order on court's own motion designating person on whose behalf service must be served for infant over fourteen or other incompetent; form 177 order on court's own motion designating person to receive summons on behalf of infant over fourteen or incompetent, when parent or guardian has adverse interests; form 179 referee's in mortgage foreclosure; form 917 referee's in surplus money proceeding; form 1093 service by publication; costs 647 service by pubUcation; jurisdiction acquired thereby 186 n service by publication; order for judgment on default after service by publication; form 632 service; foreign corporation; when may be served on secretary of state. 166 n service; managing agent of corporation; who is managing agent 165 n service; mortgage foreclosure; affidavit of mailing of summons pur- suant to order for publication of summons against absent and un- known defendants; form 856 service; mortgage foreclosure; affidavit on motion for order for publication of summons as against absent and unknown de- fendants; form 840 service; mortgage foreclosure; affidavit on motion to designate person to receive summons on behalf of infant defendants; form 837 service; mortgage foreclosure; summons and notice as published pur- suant to order; form 857 service; order designating person to receive summons on behalf of in- fant defendants in mortgage foreclosure; fonn 839 1316 INDEX SUMMONS— CoraimMed page service; order for publication of summons against absent and unknown • ' defendants; in mortgage foreclosure; form 854 service; unincorporated association; affidavit; form 170 service without the state or by publication; judgment on default; form 634 with notice, in Supreme Court or County Court; form 164 SUPPLEMENTARY PROCEEDINGS; list of forms. 685 adjournments; how noted 687 n administratrix with the will annexed; examination of to enforce Surro- gate's decree 691 n affidavit for examination of judgment debtor before return of execu- tion; form 686 affidavit for examination of third party as to property of judgment debtor; form 693 affidavit of service of order in supplementary proceedings; form 696 affidavit to obtain order for examination of judgment debtor after re- turn of execution; form 690 affidavit to obtain order to show cause why attachment should not issue against judgment debtor; form. 697 bond for costs upon failure to creditor to make request that receiver sue; form 59 City Court of the City of New York; necessity of filing transcript of judgment in County Clerk's office. 694 n corporation; examination when corporation has been dissolved. ...... 691 n endorsement on papers in supplenientary proceedings noting default of judgment debtor in appearing; form 354 Municipal Court; where examination held 687 n notice of motion by receiver in supplementary proceedings for permis- sion to sue; form * 54 oath of debtor 686 n oath of referee 685 n order for examination of judgment debtor after return of execution; form 692 order for examination of judgment debtor before return of execution; form 689 order for examination of third person as to property of judgment debtor; form 695 order to show cause why attachment should not issue against judgment debtor; form 699 order permitting receiver to sue; form • 62 petition by receiver for permission to sue; form oi. receiver; when and how appointed : 687 n request by creditor that action be brought by receiver; form 58 return of execution; to what county : 691 n scope of examination; suggestions as to matters about which inquiry should be made ; 687 n statement for beginning of examination 685 n taking of testimony before referee 685 a SURETY; landlord and tenant; form 1179 ; INDEX 1317 PAGE SURPLUS MONEY PROCEEDINGS; list of forms 1085 affidavit on motion for reference; form. 1087 clerk's certificate as to appearances in action; form 1090 clerk's certificate of filing of claim to surplus money; form 1091 notice of claim to surplus; form . ; 1089 notice of filing of referee's report and of motion to confirm, report; form 1094 notice of motion for.reference in surplus money proceeding; form 1086 order confirming referee's report; form 1095 referee's report; form 1096 referee's summons in surplus proceeding; form 1093 reference; when ordered 1085 n SURRENDER OF LEASE; form . 1179 SURROGATE'S COURT; bill of costs in 651 hints regarding securing forms for practice in 1242 n T TEMPORARY INJUNCTION. See Injunction. TERM FEES; costs allowed. 648 TESTAMENTARY GUARDIAN. See Guardian and Ward. TITLE TO REAL PROPERTY; list of forms 1115 See Real Property; Deeds. TORT; assignment of 2 n judgment by default; demand by defendant for notice of execution of reference or writ of inquiry ; form 628 judgment by default; order for judgment and assessment of damages by writ of inquiry on default of defendant; form 625 pleading one tort as counterclaim to another 270 n TRADE-MARK; injunction; recital in injunction order 491, 492, 493, 494 TRADE SECRETS; disclosure of secret processes; injunction; recital in injunction order 487 TRIAL; adjournment; afiidavit; form . 610 amendment of pleading at; withdrawal of juror 611 n bringing on cause of action for trial; list of forms 580 dismissal of complaint after, verdict 612 n ^p entry of judgment after jury trial 613 n entry of judgment after jury trial without notice of taxation of costs . . . 613 n extract from minutes; where secured for the purpose of entering judg- ment 613 n issue of fact; costs 647 judgment after+rial before referee to hear and determine; form 637 > issue of law; costs , 647 judge's charge; requests to charge; exceptions to charge 612 n judgment after trial before jury; form 636 judgment dismissing complaint at trial term; form 635 1318 INDEX TRIAL — Continued page jury; peremptory challenges Qlbr motion for direction of verdict; when made 611 u motions on the pleadings; when made 611 n rnotion to dismiss complaint 611 n new trial; motion therefor and when made 612 n note of issue for trial term in New York County; form^^r- 584 note on the various steps in a, trial 580 note on trial practice 610 n notice of; defendant's; form . -,-<'. 583 notice of motion for preference on calendar in New York County when defendant under arrest; form 585 objections and exceptions 611 n plaintiff's notice of trial; form 581 See Calendar Practice. , TRUSTEE; acknowledgment by; form 144 examination of before trial ' 546 n TRUSTS; assignment of income from trust estates 3 n examination of trustee before trial 546 n execution against income from trust fund; necessity of notice to trustee 668 n issuance of execution against income from trust fund; notice of motion; form 667 ITNDERLEASE; form J'. . 1171 UNDER, SHERIFF; acknowledgment by in name of sheriff; form 144 UNDERTAKING; appeal; form 723 appeal; approval; 723 n appeal; Court of Appeals when stay of execution of judgment is not de- sired; form 729 appeal from judgment of Municipal Court; justification of sureties 736 n appeal from judgment of Municipal Court to stay execution; form 736 appeal to Court of Appeals when stay is desired 729 n arrest; fomi 411 arrest; assignment of cause of action on undertaking 4 n attachment; form ■. 455 attachment; by surety company; form 457 attachment; undertaking by attachment greater where property is claimed by third person; form 460 attachment; undertaking by defendant on application to discharge at- tachment; form 463 attachment; undertaking by third person who claims property taken under attachment against another; form 461 injunction; form 5('" replevin ; form 7^; security for costs; form '. . OC i 3 INDEX 1319 PAGE UNFAIR TRADE; injunction; order; recital in injunction order. .491, 492, 493, 494 See Resteaint or Tbade; Injunction; Contract. UNINCORPORATED ASSOCIATION; affidavit of service of summons on; form 170 order for substituted service of summons on imincorporated association; form 184 suspension of from membership; injunction; recital in injunction order 497 USURY; answer; form 272 V VENDOR AND PURCHASER; affidavit of title of vendor; form 1153 affidavit on motion to compel purchaser to take title after sale in parti- tion; form . . ; 1081 agreement for exchange of real property; form 1119 agreement for sale of real property; form 1115 notice of motion to compel purchaser to take title after sale in partition; , form , _ .. . ,., 1080 order requiring purchaser to complete purchase after sa1^ni)artition; form ; . . 1083 VENUE; affidavit; necessity and meaning of 150 n VERDICT; direction of at trial 611 n dismissal of complaint after verdict 612 n motion to set aside and for a new trial; when and how made 612 n VERIFICATION; list of forms 307 agent or attorney of foreign corporation where pleading made on in- formation and belief; form 312 attorney or agent of foreign corporation where allegations made posi- tively and not on information and belief; form 312 attorney of foreign corporation where denial made of knowledge or in- formation; form 313 by agent or attorney when all material allegations of pleading are within his personal knowledge; form 310 by attorney where party is not within the county where the attorney "^^ resides or has his office; form, 311 by party; form .308 domestic corporation by officer; form 309 mechanic's lien 756 n notice to be endorsed on pleading upon returning the same for want of verification or because of a faulty verification; form 314 pleading founded upon written instrument for pajTnent of money in possession of agent or attorney; form 310 pleading on behalf of People of State by officer acquainted with the facts; form 314 when required 307 n 1320 INDEX PAGE VILLAGES; notice of claim against for injuries to person or property; forms 34, 35 notice of claim to village chartered under special acts 35 n w WAIVER; accident policy; pleading waiver of requirements of policy. , . . 255 n delay in performance of building contract, which owner waived; com- plaint; form ■, ;, 222 WARRANT. See Attachment; Arrest; Chattel Mortgage. WARRANT OF SEIZURE; affidavit to procure in action to foreclose lien on chattel under conditional bill of sale; form 985 WARRANTY; implied warranty in sale of deeds; complaint; form 212 WATER COMPANY; restraining company from disconnecting pipes; re- cital in injunction orders '';■."'.■ 500 WATERCPyKSES;'(ieed,of; form ..._ 1147 -WILL^atifln.t])^te^jj|»i a wil! dcss noi, aljate by death of J)laintiff 749 n form of . . .91^3 . . V ' ^"- •■' ■ - 1242 mortgage fc^Rd^ire^nsw^^executo?* sifch that he is not liable ^^"' "^^^PB*^^ ^® ^^ ^'^ gower under will to loake mortgage; I'mm .— ■ : ". : rf. ■ 916 Vi'lTT^ESSES; fees of 650 fees of witnesses, when served with subpoena 606 n fees to be paid on service of order for examination of party before trial . . 549 n WORK, LABOR AND SERVICES, complaint; form 217 WRIT OF ASSISTANCE; order awarding in partition action; form 1079 partition action; afHdavit to procure; form 1078 WRIT OF INQUIRY'; demand by defendant for notice of execution by refer- ence or writ of inquiry; form 628 inquisition on when motion made for judgment by default; form 630 notice of execution of on judgment by default; form. 629 order for judgment and assessment of damages by writ of inquiry on default of defendant; form 625 to sheriff on default in tort actions; form 627 WRIT OF SEIZURE; foreclosure of chattel mortgage; form P'. 9 foreclosure of chattel mortgage; affidavit to procure; form 9^ .j