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[or, if the motion is out of court,54 will move before Hon. J. K., a justice — or, judge — of the court, at his chambers in
, 19 , at
o'clock in the noon] for an order [state relief ;55 indicating ground
among the grounds, specify theme], and for such other or further relief as may be just [with costs of this motion 58]. [Date.] [Signature59 and office address of]
Attorney for [moving party]. To [address61], Attorney for [adverse party).
[For Order to Show Cause, see p. 179.]
FORM No. 48. The same, on behalf of party not appearing, except specially. [As in last preceding Form, inserting at the* :] the undersigned appear[s] specially for the purposes of this motion and for no other purpose, and —
[And after signature substitute:] appearing specially as attorney for [naming party] for the purposes of this motion only.
[Continue as in preceding Form.]
FORM No. 49. The same, for motion on behalf of one not a party to the action.62 [As in last preceding Form but one, inserting at the † :) on behalf of [here naming the person on whose behalf the motion is made in the within affidavit [or, petition] mentioned —
[And after signature substitute:] attorney for [naming same person].
[And address to all parties who have appeared.]
54 See paragraphs 29, 32, 33 and 93, as to when application on notice is made to a judge out of court.
55 See paragraphs 79 and 98, as to necessity for disclosing grounds of the motion, and as to relief sought. See, also, paragraphs 96, 97 and 132.
56 See paragraphs 79, 96 and 97, as to specifying irregularity and effect of omitting to do so. See, also, par. agraphs 152 and 157.
57 See paragraphs 99 and 159-161,
as to prayer for general relief, and its effect.
58 See paragraphs 99 and 165.
59 See paragraphs 100 and 101, as to signature and its effect as a general appearance when unqualified. Subscription or indorsement by the attorney of all papers in the action is required by court rule No. 2.
61 See paragraph 102.
62 See paragraphs 7-9, supra, as to when persons not parties may move.
FORM No. 50. Supplemental63 notice of motion, enlarging relief.64 [Title of court and cause.]
Please take notice, that in addition to the papers and proceedings referred to in the notice of motion dated on the day of , 19 , copies whereof with said notice, have already been served on you, for the motion noticed for the day of
, 19 , at [the chambers of Mr. Justice J. P.], in
, in the above entitled action, amongst other things, to set aside the judgment of foreclosure, and the sale thereunder of the premises by J. F., referee appointed therein, the making of which motion has been postponed, by stipulation to the day of , 19 , at the same place and time, the defendant will also, for the purpose of sustaining said motion read the affidavits of [specify them, and other papers] annexed hereto, and copies whereof are herewith served on you, (and will also, if necessary, refer to and use on said motion all original papers, copies of which have been served on you in this action or which are filed herein and referred to 65 in the papers so served, and particularly the written demands which have been served on both the plaintiff and his attorney in this action;] and the defendant will on said motion ask for the relief specified in the former notice, dated on said day of
, 19 , and the whole thereof, and on all the grounds therein specified; and in addition thereto, will ask (to have the judgment set aside and vacated on the grounds -- stating additional grounds — or, otherwise specify as in an original notice, the additional relief desired.
[Date ; Signature; and Addresses, as in Form No. 47.]
FORM No. 51. Notice to bring on hearing after indefinite adjournment. [Title of court and cause.]
Please take notice, that on the notice of motion dated the day of , 19, and the papers thereunto annexed and heretofore served on you, (and the affidavit of N. B. herewith 66 served,] the motion [specify it so as to accurately identify it, as, to set aside the judgment herein, and the sale of the premises described in the complaint in said action, and for other relief,] which motion was partially heard before Mr. Justice J. P., at his chambers in , on the day of
63 See paragraph 113, as to serving further papers, and limit of time for so doing. See par. 131 as to reading additional papers not so served, and obtaining an adjournment for such purpose.
64 A praver for other and further relief will enable the court to grant
it, but will not generally enable the moving party to appeal if it is refused. Van Slyker. Hyatt, 46 N. Y. 259. See, also, paragraphs 159161 (abore), as to the effect of pray er for general relief.
65 See paragraph 80 as to mode of referring to other papers.
, 19 , will again be brought on for a hearing on all the grounds specified in the said former notice so served on you, on the day of
, 19, at a. M., at [the chambers of the said justice] in , and the defendant will then and there ask for such further or other relief as may be just.
[Date; Signature; and Addresses, as in Form No. 47.]
FORM No. 52.
Affidavit for a motion.— General form.67 [Name of court, and, if Supreme Court, name of county of trial.]
(Names of the plaintiffs, or, John Doe, and others,
[Names of the defendants),
ss.: John Doe, being duly sworn, says:
I. That he is the plaintiff [or, defendant — or, an agent of the plaintiffs, or, defendants — or, the attorney for the plaintiffs, or, defendants — or, the managing clerk in the office of the attorney for the plaintiffs, or, defendants — or other proper description of the affiant] in the above entitled action, and resides
II. That [here state facts in support of, or in opposition to, the motion].
III. [If moving on notice in the Supreme Court out of the district or county where the action is triable, add facts showing justification for so doing, as for example:] That the above entitled action, though triable in Westchester county, is no longer pending, but that final judgment in favor of the plaintiff [or, defendant) was entered therein in that county on the day of , 19, [and — if such is the fact — this defendant
66 See paragraph 113 (above), as to limit of time within which ad ditional papers can be served.
67 For the requisites of an affidavit generally, see Article III, p. ll, of this volume.
- or, plaintiff, or other moving person or his attorney— is a resident of the county of Kings — or other county — wherein tho said judgment is now sought to be enforced].88
IV. [If the motion is against an irregularity, specify it, as for example:] That [deponent is informed by his counsel and verily believes that] the said order under which the defendant [or, deponent] was arrested, omitted to specify any of [or, all of] the papers on which it was granted (and in particular omitted to specify the affidavit of, etc., designating it], and that a copy of the order with the papers upon which the order was granted, was not delivered to the defendant [or, deponent] upon his arrest, nor filed as prescribed by law.
[Another example: That the ex parte order now moved to be set aside, was granted upon an affidavit [or, papers] which did not disclose to the court [or, judge] whether any previous application had been made for such order.
V. [Excuse for delay in moving against an irregularity, as for example:] That on the day of , 19 , he saw in a copy of the newspaper, a copy of the summons in this action addressed to deponent, before which time he had no notice. knowledge, or information of the pendency of any such action against him (or otherwise state in what mode the proceedings were first brought to his notice, or state any other facts relied on to negative laches in moving].
VI. [In referring to parts of other papers, for caution specify the paragraph, if any, and the initial and terminal words, as for instance:] That deponent has read [or, has heard read] the annexed affidavit of A. B., verified on the day of 19 , and knows the contents thereof, and that all the allegations contained in the second and third (or other] paragraphs thereof, beginning with the words [specify them] and ending with the words [specify them], are in all respects true to the personal knowledge of deponent.
· VII. [There delay or favor of the court is sought in making defense (such as extensions of time and request to open defaults, and the like), add an oath to merits, as for example:] That this , his , and
68 The facts in this paragraph show strictly, that is being made. that it is not a motion in the action,
defendant has fully and fairly stated the case to counsel, who resides at No. ,
st., in 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. [If by attorney, see Vol. II, p. . ]
[Or if an affidavit of merits has already been filed:] That a due and sufficient affidavit of merits in this action has been made by defendant, and was filed with the clerk of this court on the
day of , 19 ; and notice thereof given to plaintiff's attorney.
VIII. [Where order to show cause is sought, show condition of cause,C9 thus:] That this cause is at issue and on the calendar for trial at the trial term in May next.
[Also show necessity for the order to show cause, as:] That deponent has had exclusive charge of said cause since its commencement, and neither of his partners is familiar therewith ; that deponent expects and intends to necessarily leave the city [or, town] of on the day of , instant, and will be necessarily continuously absent therefrom in til about the
next; that there is not now the requisite time in which to notice a motion for the relief herein asked, for the day of , 19 , the only day for which the same could be noticed before the expected departure of deponent from the city.
[Another example of necessity:] That a motion by defendant [to require the complaint in this action to be made more definite and certain, or other relief] is set down by consent for argument on
next, and deponent desires that both motions shall be heard at the same time in order that [state reason therefor] and which is the reason why the plaintiff applies for an order to show cause instead of giving notice of motion.
[Another example:] That the reason for requiring a shorter notice than eight days upon this motion [to set aside said judgment and execution, and for a stay of proceedings under the judgment] is that the property levied upon is to be sold by the sheriff on the day of , 19 .
(Where the motion is ex parte, attorney should submit his oat). as to previous application,to as, for example:] That no previous application has been made for such an order as is now sought [or name the particular relief sought; and if a prior application has been made, state to what court or judge, and what order,
69 N. Y. Gen. Rules, No. 37. See paragraph 108, supra.
70 See paragraph 84, supra.