disbursements], to be paid to28 the [plaintiffs or their attorneys] by the [defendant] Y. Z. [or, to plaintiffs to abide the event of this action].

[Another provision as to costs. It is further ORDERED that the defendant pay to the plaintiff's attorney ten dollars, costs of this motion, within ten days after the service of a copy of this order, with notice of its entry, upon the defendant's attorney.]

[Another direction as to costs.-And it appearing to the court that said has been guilty of mismanagement, or-or, and bad faith in the prosecution or, defense of this action in respect of this motion, it is further ORDERED that said costs be paid by him personally for such misconduct.31]

-

[If a judge's order, date, and signature of judge, with official title.]

[Or, if a court order, Enter, to which will be added the signa ture of judge or presiding justice, by initials of name and title.]

FORM No. 102.

Clause in an order reciting the overruling of preliminary objections.32 And the said motion having duly come on for hearing, and the counsel for the [defendant] having urged as preliminary objections to the hearing thereof, [state the nature of the preliminary objections, as, that the said motion should be heard at a Special Term for the trial of issues, and also that such hearing could not be brought on by order to show cause upon a notice of less than eight days, and also that such hearing should not be had by the justice whose order in this proceeding had been vacated on appeal by the Appellate Division,] which objections were severally overruled by the court;

And the motion having thereupon been heard upon the merits; Now, on reading and filing the said order to show cause. [etc.].

27 See paragraphs 53, 54, p. 235 (above).

55,

28 See paragraph p. 236 (above), as to who are entitled to costs.

29 If awarded generally to abide the event, with neither party specified, the party ultimately successful may tax the costs of the motion; if, as in the form, they are awarded to a particular party, to abide the event, his right to tax them depends upon his being successful in the action. See New v. Anthony, 4 Hun, 52, 6 Sup. Ct. (T. & C.) 243; Lotti v. Krakaner, 1 Civ. Pro. R. (Mc

Carty) 312, note; and see other cases under APPEALS, and also Sanders v. Townshend, 11 Abb. N. C. 217.

30 Under N. Y. Code Civ. Pro., § 3246, such a direction as this is to be given by the "court;" but the better opinion is that the word "court" there is to be construed as applying also to a 'judge, whenever a judge may, as on motion, award costs in such a case, as well as to a ref

eree.

31 So as to allow commitment for nonpayment.

32 See paragraph 30, p. 226, as to the importance of such a recital.

FORM No. 103.

The same. Another form reciting the taking of evidence and determination of a question arising thereon.33

And the [plaintiff] having made the preliminary objection, on the hearing of said motion, that the moving affidavit made as aforesaid by the said G. C. H. failed to show that any property had been attached, or that the said H. had any interest in the attached property, and the court having overruled said preliminary objection [and having thereupon given plaintiff leave to submit affidavits upon the question of the interest, if any, which the said G. C. H., as assignee for the benefit of the creditors of F. W., had in the property attached; and the plaintiff having thereupon submitted in opposition to said motion the affidavit of F. N. B., verified the day of 19 and the said

G. C. H., having submitted in answer thereto his affidavit on the day of 19 , and an affidavit having been made. by F. N. B., verified on the day of 19 in answer to the said last-mentioned affidavit of the said G. C. H.; and said motion having been duly adjourned to this day, and now regnlarly coming on to be heard]; Now, upon reading and filing the said notice of motion, and all of the said affidavits, and upon the pleadings [etc.].

FORM No. 104.

The same. Another form reciting a stipulation obviating the preliminary objection.34

And the [defendant's] attorney having thereupon, by way of preliminary objection to this motion, stated to the court [or, to the undersigned], and [plaintiffs'] attorney having admitted, that since the service of the notice of this motion [here state grounds of preliminary objection], and the [plaintiffs'] attorney having thereupon stipulated in writing [or, in open court by an entry on the minutes] that [etc.], and said objection having thereupon been overruled [etc.].

FORM No. 105.

Order denying motion upon a preliminary objection that an affidavit taken in another State was not properly certified.35

[Caption as in Form No. 94 or 96, according to motion.]

The plaintiff having moved to vacate the order of Mr. Justice

J. K., herein, dated the day of , 19, [state char acter of order, as, for the examination of the plaintiff before trial] and said motion now regularly coming on to be heard; and a preliminary objection having been made on the part of defendant that the affidavit of H. D., verified 19, at [the city of Chicago, in the County of Cook, and State of Illinois] did not contain a sufficient certificate thereto of the notary's authority to permit the same to be used upon this motion; and it appearing to the court that such certificate is defective and insufficient to entitle said affidavit to be read upon this motion; Now, on reading and filing [etc., as in previous Forms] and on motion of O. P., Esq., attorney for the defendant, it is

ORDERED: That the plaintiff's motion to vacate the said order for his examination before trial be, and the same is, hereby denied, with ten dollars costs, to defendant, [but with leave to renew upon payment of costs.]

[Continue, as in Form No. 108 (below).]

FORM No. 106.

Clause in order as to jurisdictional objection.

And the defendant having appeared by O. P. specially,36 for the purpose only of objecting to the motion on the ground that the court had no jurisdiction of the person of the defendant [or, of the subject of the action-or, both], and the court [or, the undersigned], having heard and overruled [or, sustained] said objections [etc.].

FORM No. 107.

Order against moving party.

[Caption as in Form No. 94 or 96, according to motion.]

The motion of the [plaintiff] herein for [here briefly indicate object, for instance, a retaxation of his costs] having duly come on [upon the calendar, or, pursuant to adjournment] to be heard; now, on reading and filing the notice of said motion dated on [or, order to show cause granted by Mr. Justice J. K. and dated on] the day of 19 and the affidavit of A. B., verified the

day of

19 [or, cite other moving papers] on which said motion is made, [and the affidavit of Y. Z.,

81 N. Y. Supp. 853: Rogers v. Rogers, 54 App. Div. 195, 66 N. Y. Supp. 512; Mix r. Andes Ins. Co.. 74 N. Y. 53. See also paragraph 30, p. 226 (above).

36 See paragraphs 24, 101, and 33, on pp. 85, 125, and 227 (above).

verified the day of 19 and other papers, if any] in opposition thereto and after hearing M. N., Esq., of counsel for the [plaintiff] in support of said motion [who also asked, under his prayer for general relief, that specifying his oral request for relief3], and O. P., Esq., of counsel for the [defendant], opposed [or, no one appearing in support of said motion]: Now, on motion of O. P., attorney for [defendant], ORDERED [etc.].

[Continue, as in following Form.]

FORM No. 108.

Order denying motion with leave to renew.38

[Caption as in Form No. 94 or 96, according to motion.]

The motion of the defendant to vacate the warrant of attachment herein granted by Mr. Justice J. K. and dated the

of

day

19 coming regularly on to be heard; Now, on reading and filing [mention motion papers and any papers read in opposition -see previous Forms], and [upon said warrant of attachment and the papers upon which the same were granted] after hearing O. P., counsel for [defendant], in support of the motion, and M. N., counsel for [plaintiff], in opposition; now, on motion of M. N., attorney for [plaintiff]:

ORDERED, that said motion be, and the same is hereby denied [with ten dollars costs] but with leave to [defendant] to renew the same upon [payment of costs and upon] other papers [or, upon the same papers with or without others] as he may be advised.

[If a judge's order, date; to be signed by judge, with initials of official title.]

[If a court order, substitute] Enter [to which will be added the signature of judge, or presiding justice, by initials of name and title].

FORM No. 109.

Order denying motion on the ground of irregularity in the motion papers.30 [Caption as in Form No. 94 or 96, according to motion.] [After recitals of papers] And after hearing O. P., counsel for

37 See paragraph 26, p. 223 (above).

38 See paragraph 45, pp. 232, 233 (above). See also paragraphs 173 and 180, pp. 160, and 164 (above), as to when leave to renew should be allowed, and the effect thereof.

39 See paragraph 38, pp. 229, 230 (above), as to the importance of reciting the ground of decision in case of a denial because of an irregu larity, etc.

the [defendant], in opposition to said motion, who objected preliminarily that [state ground, as, the irregularity complained of as the ground of this motion is not specified in the notice of motion]:

ORDERED, that said preliminary objection be and the same is hereby sustained and the said motion be, and hereby is, denied on that ground, with ten dollars costs,40 [and with leave to plaintiff to renew upon payment of costs.]

[Continue, as in Form No. 108.]

FORM No. 110.

Order denying motion because made before a wrong justice.41

[Caption as in Form No. 94 or 96, according to motion.]

[After recitals] ORDERED, that said motion be, and it hereby is, denied on the ground that the justice presiding cannot review the action of another justice of the court [with leave to the moving party to renew the motion upon the same or such other or additional papers as he may be advised, before - a term of court held by the justice under whose authority the order moved to be vacated was made].43

[Ending as in Form No. 108.]

40 Costs may be allowed. Donaldson r. Jackson, 9 Wend. 450; Anon., 18 id. 578.

41 See note 39 to last Form.

42 The ground of the decision of a motion will rarely be set forth in the order, unless based upon a technical preliminary objection: in such latter case, a proper recital and indication of the ground of decision is of value to each party. See paragraph 30, p. 226 (above).

The objection here is somewhat of such a character, though not by any means a technical objection, or one that is necessarily waived by not being noted in the order.

If the Special Term declines to base its order on a specified ground, the Appellate Division has no power to direct that it be done. Hall r. Gilman, 87 App. Div. 248, 84 N. Y. Supp. 279; Davis r. Reflex Camera Co., 99 App. Div. 567, 90 N. Y. Supp.

877.

The motion when noticed for a Special Term may be referred by the presiding justice to the proper jus tice and the objection thus obviated; at least, such is the local practise in the first judicial district.

43 This leave is proper. People v. National Trust Co., 31 Hun, 20.