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, on the
day of Present — IIon. [ (Title of the cause.]
in the city of
FORM No. 96.
Caption of judge's order.98 [Name of court, and, if supreme court, name of county.]
[Names of the plaintiffs],99
[Names of the defendants],99
FORM No. 97.
Order made by consent.1 [Caption as in Form No. 94 or No. 96, according to motion.]
On reading (and filing] ? the annexed consent of the attorneys for the plaintiff and for the defendant Y. Z. respectively, and the consent of the defendant W. X., acknowledged the day of
, 19 , and [etc.], ORDERED [etc., as in other forms].
FORM No. 98. Consent to form;3 and waiver of notice of settlement. Form of the foregoing order not objected to, and notice of settlement waived. [Date.]
Attorney for defendant. [Indorse or underwrite upon original proposed order.]
98 See paragraph 16, p. 215 labore). See also paragraph 18, p. 217, as to caption of the judge's order in first district, which elsewhere must be a court order.
99 See note 96 (above).
2 There would be no recital of filing, if a judge's order.
3 See paragraph 7, p. 211 (above).
FORM No. 99. Order on default of party moved against.4 The [plaintiff] having moved this court for an order [briefly characterize the relief sought], and the motion therefor now regularly coming on to be heard; [continue with the recitals of the notice of motion and supporting papers as in other orders, continuing:] and on reading and filing proof of due service of notice of this motion upon the defendant's attorney [or, upon the admission of due service of notice of this motion by defendant's attorney] [and it appearing from the affidavit of A. B., verified on the day of 19, that upon the return day of said motion the same was duly adjourned by stipulation of counsel in open court — or, by the court — to this day], and after hearing A. B., of counsel for the plaintiff, and no one appearing in opposition, it is, on motion of, etc.,
ORDERED [granting the relief sought], with ten dollars costs."
FORM No. 100. Order dismissing motion for absence of moving party.8 [Title or caption as in Form 94 or 96, according to motion.]
The [plaintiff] herein having given notice of a motion for [briefly indicating object], to be heard this day (or, and the same coming on regularly upon the calendar — or, by due adjourn. ment — to be heard this day], and no one appearing for the plaintiff; now on reading [and filing] the copy of the notice of said motion dated on the day of , 19 , [or, order to show cause granted on the day of , 19 ,) and papers thereto annexed, and on motion of O. P., attorney for the [defendants),
ORDERED, that said motion be, and the same hereby is, dismissed with ten dollars costs,' to be paid by [plaintiff] to defendants or their attorney.
[Date, signature, etc., as in Form No. 108 (below).]
4 See p. 136 (above).
5 See paragraph 24, p. 222 (above).
6 See paragraph 162, p. 154 (above).
7 Not allowed unless asked for in the notice or order to show cause; and a prayer for general relief is not enough. Smith v. Fleischman, 17 App. Div. 532, 45 N. Y. Supp. 553. See also paragraphs 162, 165,
and cases cited on pp. 154, 155 (above). If they are granted on default when not asked in the notice, a motion to vacate so much of the order as grants them is sustainable, and may be granted with costs. Crippen v. Ingersoll, 10 Wend. 603.
8 See p. 137 (paragraph 126) of this volume.
9 See N. Y. Gen. Rule No. 44 as to costs allowed for attending to oppose
FORM No. 101. Order in favor of woving party.-General form, illustrating various recitals; 10
and provisions as to costs.11 (Caption as in Form No. 94 or 96, according to motion.]
The plaintiff having moved this court for [briefly state object of motion] and said motion coming regularly on to be heard ; Now, on reading and filing [here enumerate12 motion papers, for instance, thus:] the notice of said motion, dated the day
, 19, and the affidavit of A. B., the plaintiff above named, verified the day of , 19 , and Exhibits A and B thereto annexed, and the deposition of C. D., verified the
day of , 19, taken under the order of Mr. Justice J. K., herein dated the day of
, 19 , together with the said order, the oath of R. F., Esq., the referee therein named and his certificate to said deposition [and upon the pleadings in the action] in support of said motion; and on reading and filing the affidavit of E. F., verified the day of
, 19 , in opposition thereto; [Recital of waiver13 of irregularity) — and the defendant's attorneys having waived in open court all objection to the authentication of [the said affidavit of A. B.]
[Recital of special authentication]— and on reading and filing a copy of the execution in this action issued to the sheriff of the county of
, and mentioned in said affidavit of A. B., with the certificate of the county clerk thereto;
[Recital of document on file]— and upon the judgment roll filed herein on the day of , 19 ,
[Recital of document read by consent]— and on reading and filing the opinion of the referee herein dated the day of
, 19, on behalf of the plaintiff, the defendant's attornevs consenting in open court that for the purposes of this motion it be deemed a part of his report;
[Recital of consent to time or place of hearing]— and on reading and filing (plaintiff's] notice of motion [or, order to show cause why — here indicating object], and the consent indorsed
a non-enumerated motion at Appellate Division, in case of the default of the moving party.
10 See paragraphs 22-30, pp. 221226 labore), as to recitals and their importance generally.
11 See paragraphs 48-58, pp. 233236 (above), as to costs generally.
12 See paragraph 27, p. 223 (above).
13 See paragraph 28, p. 225 (above).
thereon of the attorneys for all the defendants] that this motion should be made and heard at this term of court and without further or other notice; 14
[Recital of transfer of motion 15]— and on reading and filing the stipulation of the parties [or, the order of Mr. Justice J. K.) dated the day of
19, transferring this motion, to be heard and decided by Mr. Justice K. L. [but without prejudice to any preliminary objection to the notice of motion or the hearing thereof] ;
[Recital of preliminary objection 107 — and the counsel for the (defendants] having urged as a preliminary objection to the reading of the said affidavit of A. B., that the certificate of authentication thereunto attached was defective in form and not in conpliance with statutory requirements, and the said objection haring been overruled by the court [or, by Jr. Justice K. L.];
[Recital of a stipulation]- and the (plaintiffs] having stipulated in open court that [stating the stipulation in full, or, if in writing, refer to it as read and to be filed, and file it with the papers] ;
[Recital of oral admission, etc.17]— and it being admitted in open court [by the plaintiffs] that [state the entire admission] ;
[Recital of election or non-election]- and the defendants not having shown their election to try the counter-claim in this action in the manner indicated in the said order to show cause on the return day thereof, or on the hearing of this motion. And the plaintiffs having elected in open court to waive their demand for quarterly interest due on the assessment mentioned in the complaint, on being allowed to [stating the condition];
[Recital of a proceeding subsequent to notice]- and it being suggested to the court by both parties that since this motion was noticed the papers referred to in said notice of motion, as not having been filed, were filed with the clerk of this court on the
day of ,19 , and notice thereof served upon the [defendant's attorneyl;
[Recital where a party served does not appear18]— and on reading and filing proof of due service of the notice of [or, order to show cause for] this motion dated the day of
14 This recital will probably be unnecessary if the attorneys are shown to have appeared in opposition and argued on the merits, on the ad journed dav.
15 See paragraph 120, p. 135 (above).
19 , upon W. X., one of the [defendants] herein, by the affidavit of L. M., verified on the day of , 19 , [or, by the written admission of the attorney for W. X. of due service thereof upon him]; and the motion having come on regularly to be heard [upon the adjourned day);
[Recital of appearancelo]— and after hearing M. N., Esq., of counsel for [plaintiff] in support of the motion;
[Recital of special appearance20]— and after hearing (). P., Esq., of counsel for the [defendant] X. Y., appearing specially for the purposes of this motion only and in opposition thereto;
[Recital as to ground of oppositional]— and after hearing Q. R., for the [defendant] Y. Z., in opposition, on the ground that (for instance, this motion is premature] ;
[Recital of facts found22]— and it appearing [or, being proved] to the satisfaction of the court .[or, judge] that [here briefly recite the conclusions of fact established by the papers] ;
[Recital of deliberation23]— and due deliberation being had thereon;
Recital of the opinion of the court24]— and on reading and filing the decision of the court [or, the justice] thereupon:
Now on motion25 of R. S., attorney for the [plaintiffs] :
19 See paragraphs 31-35, pp. 226– 228 (above), as to appearances generally.
29 See paragraph 33, p. 227 (abore), See also paragraphs 24 and 101, on pp. 85 and 125, and the subject of Appearances, post.
21 See paragraph 32, p. 227
p. 225 (abore).
23 See paragraph 34, p. 227 (abore).
of the record, and could be referred to in order to ascertain the grounds of the decision; and it appearing therefrom that the decision was based upon the ground of a want of power, it was held that the order, although a discretionary one, was reviewable by the Court of Appeals.
The Court of Appeals cannot now entertain an appeal from an order entered upon a motion, except upon allowance of an appeal by the Appellate Division.)
25 See paragraph 35, p. 227 (above).
24 In Tolman V. The Syracuse, Binghamton & N. Y. R. R. Co., 92 N. Y. 353, where an order of a special term recited that it was made “on reading and filing the decision of the court,” referring to the special term opinion, which was the only deeision filed, and the minutes of the General Term, on affirmance of such order, stated that it was affirmed on the opinion of the judge at Special Term – it was held that the opinion at Special Term was thus made part
26 As to costs generally, see paragraphs 48-58, pp. 233-236 (above). Costs may be granted in an order made on rehearing if they might be on the motion originally. Van Wyck v. Alliger, 3 How. Pr. 292, 1 Code R. 68.
As to costs upon default of party moved against, see note to Form No. 99 (above).