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or decision, or disposition was made, and what new facts, if any, are now shown, for instance, thus: A previous application for an order to show cause herein for the same relief, was made to, and granted by Hon. , a justice of this court, on the day of
, 19 , but upon the return thereof before the Special Term of this court, on the
day of 19 , the relief sought was denied by the court upon a preliminary objection made by counsel for the defendant upon the technical and sole ground that the said order to show cause did not specify the irregularity moved against (but such denial was without costs and with leave to renew). The application now made is for an order to show cause which specifically sets forth the irregularity complained of.] [Jurat.]
[Signature.] FORM No. 53. Affidavit to procure order to take deposition for use upon a motion. [Title of court and cause.] Penue.]
M. V., being duly sworn, says:
II. This action has been commenced by the service of a summons and complaint; that this action is brought to (state nature of action.]
III. With said summons and complaint was served an injunction order, restraining the defendants from doing certain acts as directors and otficers of the defendant corporation, which said injunction order also contained an order to show cause why the said injunction should not be continued during the pendency of this action.
IV. In said order permission was given to the plaintiff to serre additional attidarits in support of the application to continue said injunction. 1. Said motion to continue said injunction was returnable on dar of
, 19 , but has been adjourned and is set down for argument for the day of
VI. On the day of , 19I presented the annexed proposed artidarits to the defendants' manager and treasurer, R.
ni sually the filarit of the at. torder is sutent not of these
ratters. Vozes r. Banker, 30 Super. (t. 131, 34 How. Pr. 212.
A. and H. S., respectively, with the request that they verify the same, but they absolutely refused" and declined to make said affidavits. These affidavits, which were presented to said R. A. and H. S., are in support of the allegations of the complaint herein, viz., [If the application is not founded on the complaint as well, state the substance of the allegations supported.]
VII. [Here set forth the facts intended to be proved by the witness, for instance, as follows:] The proposed affidavit of R. A. sets forth the acts and proceedings of the defendant corporation and its officers and directors, and among other things, stated and set forth the proceedings by which the aforesaid R. A. was appointed manager of the defendant corporation and the drawing of moneys from the funds of such corporation as such manager; and also the fact that he had made, without the sanction or authority of the board of directors, contracts with actors and actresses to render services at the
theatre, and stated and alleged he had granted the privilege of disposing of librettos during the production of operas at said theatre to [
].73 VIII. The proposed affidavit of S. shows that he mismanaged the books of said company and made entries therein at the instance and suggestion of said R. A. and without any authority from the board of directors (or whatever fact is material to the complaint.]
IX. Said facts and circumstances tend to confirm the allegations of the complaint in very many particulars, viz., [stating them.]
X. All the facts and allegations in the proposed affidavits I verily believe to be within the personal knowledge of said R. A. and H. S.74
72 See paragraph 66, supra.
If the affidavit was presented by a person other than the affiant, annex and refer to his affidavit. See Form 55, post.
73 The affidavit should specify with reasonable certainty the subject upon which the witness was requested to depose and the facts claimed to be within his knowledge and their bearing upon the motion to be made. Dauchy v. Miller, 16 Abb. Pr. (N. S.) 100. See paragraph 67 (above).
74 An allegation that a party de
sires to examine his adversary to prove certain facts is not sufficient. It must be alleged that the facts desired to be proved exist. Kirkland v. Miss, 11 Abb. N. C. 421; s. C., 2 Civ. Pro. Rep. (MeCarty) 321 n.
A “ fishing” examination is not allowable. Wallace 0. Baring, 2 N. Y. App. Div. 501; 37 N. Y. Supp. 1078, 3 Anno. Cas. 16; Fisk r. Chicago, etc., R. R. Co., 3 Abb. Pr. (N. S.) 430. See more fully paragraph 75, supra.
XI. I intend to use the said depositions and affidavits, upon the hearing of the said motions to continue the injunction herein. [Jurat.]
[Signature.] [Here annex copy of proposed affidarits.]
[Under the 1901 amendment to V. Y. Code Civ. Pro., § 885, notice of motion to the adrerse party is now essential.]
FORM No. 54.
[Title of court and cause.] [Vene.]
W. E. S., being duly sworn, says:
I. That he is the attorney for the plaintiff herein; that this aetion is brought to recover (state its nature. ) *
II. That heretofore a certified copy of a warrant of attachment, issued herein against the property of the above named defendant, was served upon one C. W. D., a brother of the above named defendant, and who is executor of one C. D., deceased, their father. That thereafter said C. W. D. gave a certificate to the effect that he had no property in his possession belonging to said defendant.
III. That thereafter an order was duly obtained requiring said (. . . to appear and be examined as to the same, on the ground that the said certificate was not true. That thereafter an order was obtained by the attorney for said C. W. D. to
bow cause why the order requiring him to be examined should not be vacated and set aside, and staying proceedings on the part of deponent under the order for his examination. That the motion to racate the said order for the examination of said C. IT. 1), is returnable under said order to show cause on the . dar of
19 , and this deponent intends to oppose the same.
I'. That hertefore an order to show cause why the order of publication herein granted against the ahore named defendant should not be vacated and set aside, was duls granted upon the
r and beate was not for sai
Code Civ. Pro..
3 From Reers r. Prant, 56 X 5 Required by
Se gamer partire $ S5. *B ielidir paragrapà 6.
application of defendant's attorneys, and the same has been adjourned for hearing to
, and this deponent intends to oppose the same.
V. That on the day of , 19 , as appears by the affidavit of M. N., hereto annexed, deponent caused a proposed affidavit of which a copy is hereto annexed marked A (the contents of which must be apparently material upon the motion referred to]to be presented to said C. W. D. with a request that he verify the same and that all the allegations in said annexed proposed affidavit deponent verily believes are within the per
VI. That, as appears by the annexed affidavit of M. N., the said C. W. D. was requested to sign and verify said proposed affidavit but refused to make the same.
VII. That it is necessary for deponent to have proof of the facts stated in the annexed proposed affidavit of said C. W. D. in order to successfully oppose the motions hereinbefore mentioned, and deponent believes, if he is allowed to take the deposition of the said C. W. D., he will be able to show that the said C. D. deceased, left a large amount of property, and that the same came into the possession of said C. W. D., as executor, and that a part thereof is liable to be attached as the property of the defendant herein. (Jurat.]
[Signature.) FORM No. 55. Affidavit of presentation of affidavit and refusal to verify. [Title of court and cause.] (Venue.] M. N., being duly sworn, says, that on the day of
, 19 , at the request and by the direction of W. E. S., attorney for the plaintiff herein, I presented to R. A., mentioned in the annexed affidavit of said W. E. S. a proposed affidavit, of which a copy is hereto annexed, and then and there requested him to verify the same, and offered to pay the fees of the notary for administering the oath ; but said R. A. thereupon refused and declined to make said affidavit or any affidavit for the plaintiff herein. [Jurat.]
for that the rear says, that
77 See paragraph 67, supra.
FORM No. 56. Affidavit to presentation of affidavit and evasion of request to verify.TB [Title of court and cause.] [Venue.]
A. W. K., being duly sworn, says:
I. On the day of , 19 , at the request of M. N., attorney for the plaintiff herein, I called upon one C. W. D., one of the executors of the last will and testament of C. D., deceased, at his office, No.
street, in and presented to him and requested the said C. W. D. to verify an affidavit to be used in behalf of plaintiff in this action, a copy of which is hereto annexed and marked “Exhibit A.”
II. That said C. W. D. replied that he would see his counsel and consider the matter, and requested me to call again. I called upon said C. W. D., at his office, in the afternoon of said day, but was unable to find him. I again called upon said C. W. D., at his office, on the instant, in the noon, when said C. W. D. stated that he did not decline to make the said affidavit, but would see his counsel. On the afternoon of said day I again called upon said C. W. D., at the same place, and again requested him to verify said affidavit; but he replied that he did not decline to make said affidavit, but that he must have time to consult his counsel. I again called upon said C. W. D., at the same place, on the morning of the instant, when he made substantially the same answer as already stated above, adding that he would endeavor to see his counsel during the day, and have some information for me in the afternoon, about three o'clock. Accordingly, about three o'clock in the afternoon of said day, I again called upon said C. W. D., at the same place, and waited there for some time, but was unable to see him. I thereupon wrote a note to said C. W. D., leaving it for him with his bookkeeper, stating that unless we re ceived said affidavit from him at five P. m., we should consider that he positively refused to make the same. Nothing as received from him by that hour or during the following day. [Jurat.]
[Signature.] [Annex draft of the affidavit requested; and head it, ExHIBIT A.]
78 See paragraph 66, (above).