FORM No. 57.

Order to take deposition for use on a motion.79

[Although notice is required this may be a judge's order, or]

At a Special Term [etc.]80

[Recitals as in any judge's or court order; see Orders, post.] ORDERED, that C. W. D., of No.

street, in the city of , appear and attend before J. C., Esq., who is hereby appointed referee to take the deposition of said C. W. D., at the office of said referee, No.

the

day of

19

street, in said at

city, on o'clock in the noon, and at such other time81 or times as said referee shall name, and make his deposition and testify and make true answers to all such questions as may be put to him [here comprehensively but concisely indicate subject of examination, for instance] relative to the facts embodied in the annexed proposed affidavit heretofore submitted to him, and which he refused to verify. It is further Ordered that said deposition when taken by said referee shall by him be filed with the clerk of this Court for other desired disposition].82

[For reasons stated in said affidavit of the plaintiff's attorney, service of the subpoena upon said C. W. D. may be made in the county of

.]83

Subpoena to a witness to attend and make deposition for use on a motion.84 The People of the State of New York to [naming witness], greeting:

We command you, that all business and excuses being laid

79 From Rogers v. Durant, 56 N. Y. 669. See paragraph 70 (above).

80 This may be either a judge's or a special term order on notice to all parties who have appeared of at least one day. Code Civ. Pro., § 885. See appropriate captions in each instance under Forms of Orders (post).

81 If a time fixed by the referee is relied on instead of one fixed by the order, get referee to fix it in writing and name it accordingly in the sub

pœna.

82 In the absence of any direction in the order the deposition is de livered to the party who procured the order. N. Y. Code Civ. Pro., § 885.

83 Otherwise the subpoena may be served only in the county where the non-resident person is to be examined. Code Civ. Pro., § 886.

84 See paragraphs 71, 73, 75 (as to subpoena, duties of referee, etc.) (above).

aside, you appear before R. F., Esq., (the referee appointed by court), at the office of said street, in the city of

[Hon. J. K., a judge of] the referee, No.

19

at

on the

day of o'clock in the noon, to be examined and make deposition to be used upon a motion on behalf of the [plaintiff] in a certain action now pending in the said court between A. B., plaintiff, and Y. Z., defendant, and for a failure to attend you will be guilty of a contempt of court, and will be also liable to the aggrieved party for loss and damages sustained thereby, and will forfeit fifty dollars in addition thereto :

WITNESS, Hon. [here name any justice or judge], Justice of said [Supreme] Court, at the Court House in said city, the

[Seal.]

day of

19.

[Signature and address of attorney.]

[Signature of clerk.]

[Under N. Y. Code Civ. Pro., § 885, attendance is to be enforced as at the trial.]

of Mr. Justice J. K., one of the justices of the

day of day of

19

Court, dated the

, [or, an order made herein on the 19 , whereof a certified copy is here

unto annexed], at the instance of the plaintiff [or, defendant] above named, pursuant to section 885 of the Code of Civil Procedure.

Appearances:

M. N., Esq., attorney for plaintiff.

D. C., Esq., attorney for defendant.

The said A. B., being first duly sworn, deposes and says: Direct examination, by Mr. N.

Q.:
A.:

86

85 It is not irregular for the referee to put questions to the witness. Brooks v. Schultz, 3 Abb. Pr. (N. S.) 124.

Witness cannot be required to examine or produce books or papers. Wallace v. Baring, 2 App. Div. 501,

37 N. Y. Supp. 1078, 3 Anno. Cas. 16.

See generally paragraph 75, supra. 86 The deposition must be taken by question and answer. Code Civ. Pro., 885.

I hereby certify that by virtue of the annexed order made by Justice J. K. [or, by the court] on the

day of

19, at I, having first taken the referee's oath also hereto annexed, took the foregoing deposition of [here name witness or witnesses]; that said deposition when completed was carefully read to and subscribed and sworn to by said [witness]. [Date.]

[Signature of] Referee

[Annex referee's oath.]

FORM No. 60.

Order to show cause87 General form.

[Name of] court [or, if court order88] At a Special Term [or,

an Appellate Division [etc.].

[Title of cause.]

On reading the annexed affidavit of

day of

verified the

19 [and specifying other papers, if any, relied on; and, if the motion is made by one not a party, add, and on motion of Q. R., attorney for M. N.]:

ORDERED, that the [plaintiff] herein or his attorney show cause, at a [Special] Term88 of this court, to be held at the [County Court House], in the [Borough of Manhattan], county of

on the

day of

19

at

2

o'clock in the

noon, or as soon thereafter as counsel can be heard [or. show cause before me, at my chambers in

day of

at o'clock in the noon], why [here state relief sought, and grounds thereof, specifying irregularity complained of, if any], and why the [defendant] should not have such other or further relief as may be just [with costs of this motion.]

87 See paragraphs 104 and 105 as to when such an order may be used as process, and when as a short notice of motion. See, also, paragraph 111 as to its legal effect.

88 See paragraph 106, as to who may make such orders and where returnable. See, also, Code Civ. Pro., § 782. As to captions, see Orders (post).

Service of this order, and the papers on which it is granted on or before the shall be suffi

cient. 89

day of

19

[Date, signature, etc., as in Form No. 47 above.]

FORM No. 61.

Order to show cause, allowing further papers to be served meanwhile.

[Title of court and cause.]

On the foregoing affidavit of A. B., verified the

day of

19 , and on all the papers and proceedings in this action, and on such other and further affidavits as may be served by the [plaintiff] herein on or before [Wednesday], the

inst., let the [defendant] show cause [etc., as in Form No. 60].

FORM No. 62.

Counter-motion,90

[Title of court and cause.]

day of

on the

day of

19

at

Please take notice, that upon the [annexed] affidavits of A. B. and C. D., copies of which are herewith served upon you, and upon [the pleadings in this action, and upon] the papers served by you upon me on the 19 whereon you have given notice on behalf of the plaintiff [or, defendant-or other person] of an application to this court, at a special term thereof, to be held at the City Hall [or, County Court House] in the of the opening of the court, or as soon thereafter as counsel can be heard, for [specifying the relief sought in the original motion, for example, an injunction order restraining the defendant — or, plaintiff or other person from selling or interfering in any way whatever with the partnership property mentioned in the complaint] the undersigned, in case your motion shall be granted, will make a counter-application to this court at the same hour and place, or as soon thereafter as counsel can be heard, for [a receiver of the said partnership property, and that the plaintiff or other party-be likewise enjoined from interfering therewith -or other relief], or for such other or further relief as may be just [with costs of this motion].

[Date, signature, and addresses as in Form No. 47 above.]

89 See paragraph 109, supra. 90 See paragraph 116 (above). If sufficient time is not intervening for a regular notice of motion, take an order to show cause and set

up the time set for the hearing of the original motion and the inade quacy of the intervening time, as the necessity for the order.

FORM No. 63.

Countermand of motion.

[Title of court and cause.]

Take notice, that I hereby countermand the notice of motion for [designnating it], dated on the

day of

last, and heretofore served on you in this action [and I hereby tender payment of your costs of opposing said motion].

91

[Date.]
[Address.]

[Signature.]

FORM No. 64.

Motion to amend an order.92

[As in the notice of motion (Form No. 47) as far as object of motion, and then indicate the desired amendment, as, for example:] that the order heretofore granted in this action by [this court at a Special Term thereof, and dated and entered on the day of 19 ,] whereby the defendant and others were directed to appear before R. F., referee, to make depositions to be used on a motion in behalf of the plaintiff, may be amended [state in what particular as, by striking out the said provision in so far as it affects the defendant], or for such other or further relief, etc.

FORM No. 65.

Stipulation extending the time fixed by a notice of motion, or order to show cause, for the hearing thereof.

[Short form when indorsed upon the notice of motion.] Title of court and cause.]93

day of

It is hereby stipulated that the within motion is adjourned to be heard before the same court [or, judge] at the same place and hour, on the 19 or as soon thereafter as counsel can be heard [without prejudice to the plaintiff's or, defendant's right to make any preliminary objections to said motion, or to the hearing thereof, as he may be advised.] [Care should be taken to name a proper return day in term time, or, if before a judge, a day on which he will be present.]

[Date.]

[Signatures of the attorneys for the different parties.]

91 See paragraph 115, as to effect of omitting to tender costs upon countermanding notice of motion as to entire relief sought, and also as to one of two objects of the motion. 92 See paragraph 41 (above).

93 The title may be omitted, or much abbreviated, where the motion papers are properly entitled.

94 See paragraph 117 (above).
See preceding note.