« PreviousContinue »
FORM No. 111. Clause in order showing denial was on ground excluding exercise of dis
[Insert] denied for want of power to grant the motion [or some reason necessarily excluding an exercise of the court's discretion.] 45
FORM No. 112 Order denying motion without prejudice to an action.46 [Caption as in Form No. 94 or 96, according to motion.]
[After recitals] ORDERED, that said motion be, and the same hereby is denied, with ten dollars costs; but without prejudice to the bringing of any action which may be advised.
[Ending as in Form No. 108.]
FORM No. 113. Order denying motion (to put in supplemental answer) because plaintiff
makes a stipulation and admission.
[Caption as in Form No. 94 or 96, according to motion.]
[After recitals] And the attorney for the plaintiffs stipulating in open court that [state exactly what the stipulation was, as proof of any amount paid by C. D. on account of the sum of and interest, damages claimed in the complaint herein, be, upon the trial of this case, allowed in mitigation of damages ;]
And the attorney for the plaintiffs also admitting and stipulating in open court [that said plaintiffs received from said assignee on the day of , 19 , a dividend of per cent. on said sum, amounting to
dollars and that said last mentioned amount shall be allowed upon the trial in mitigation of their damages without further proof thereof) it is, on the motion of A. B. attorney for plaintiffs, and upon the ground that said stipulations as above set forth obviate the necessity of the defendant's proposed supplemental answer;
ORDERED, that said motion be, and the same hereby is denied. [Ending as in Form No. 108.]
44 See note 42 to Form next prececling.
45 This is important in applications addressed to the court's discretion, for the purpose of showing by the record that no discretion was exer
cised. See, for result on appeal, Winch v. Farmers' Loan & T. Co., 11 Misc. 390, 32 N. Y. Supp. 244.
46 See paragraph 45, pp. 232, 233 (above).
FORM No. 114. Order vacating order of arrest, on condition.47 [After caption, as in Form No. 94 or 96, according to motion; and recitals] ORDERED, that said motion be and the same is hereby granted, upons condition that said defendant execute and deliver, within five days after the service of a copy of this order on his attorneys herein, a stipulation duly acknowledged in like manner as a deed to be recorded to the effect that he will not bring or institute any action or proceeding against said plaintiffs, or either of them, in consequence of his imprisonment herein, or by reason of the issuance of the order of arrest in this action.
It is further ordered, that in the event of the defendant failing or refusing to execute and deliver said stipulation as aforesaid, said motion to vacate said order of arrest is hereby denied, with ten dollars costs, to plaintiffs.
[Ending as in Form No. 108.]
FORM No. 115.
Order with conditions and consent thereto.49 [Caption as in Form No. 94 or 96, according to motion.]
The plaintiff's motion to vacate the judgment entered in this cause, and for a commission, etc., duly coming on to be heard [recite as in previous Forms— see Form 101 — the motion papers, etc.].
ORDERED, that the said judgment be and the same is hereby wholly vacated and set aside, together with the execution and subsequent proceedings thereon, without prejudice to the plaintiff's right to re-enter the same for the proper amount, so soon as such amount can be ascertained; and to that end [insert provision for a commission];
And the defendant having opposed said application on the ground that his incarceration might be unnecessarily prolonged if said motion is granted, and plaintiff, by his attorney, having, in open court, offered to consent to the following provision in defendant's behalf, it is further ordered that, if defendant shall in writing consent to this provision, but not otherwise, he shall be permitted [to make application to this court for his discharge at the time when he would have been entitled to make such application, if said judgment had not been vacated, and if an execution had been duly issued against his body thereon), provided, however, that he shall, in the meantime [submit to an examination as to all the circumstances attending his alleged misappropriation of moneys, or other proceeds of plaintiff's notes, and shall fully disclose the use of such proceeds, and shall produce all books and papers belonging to him, or under his control, affecting such use of said moneys, and for that purpose he is hereby required to appear before M. N., Esq., who is hereby appointed a referee for that purpose, at such times and places as he may appoint; said referee to [here state whether to examine and report, or to determine]. If defendant shall, within two days from the service of this order, refuse or omit to consent to and shall thereafter fail to fully and fairly perform this provision in his behalf, it shall become null and void.
47 See paragraph 39, p. 230 (above), as to power of court to impose conditions on granting favor.
48 That “ upon” sufficiently marks
a condition precedent in an order, see paragraph 40, p. 231 (ahore).
49 See the two preceding notes,
[Ending as in Form No. 108.]
I, the above-named defendant C. D., do hereby consent to the provisions and agree to fully and fairly perform the conditions set forth in the foregoing order. [Date.]
FORM No. 116. Clause in order referring to parts of another document. ORDERED, that said motion be, and the same is hereby granted, and the words in paragraph numbered III., in said answer, commencing with the words, “and this defendant further says,” down to and including the words, “in good faith, and without intent to injure the plaintiff,” be and they hereby are struck out as irrelevant and redundant.50
FORM No. 117. Order denying motion to vacate a previous order which appointed a time
that has now passed.51 [Caption, recitals and appearances, etc., as in other cases.]
ORDERED: I. That the said motion be and the same hereby is denied.
50 See paragraph 80, p. 115, of this volune, as to mode of referring to other papers.
51 See paragraph 43, p. 232 (above), as to reinstating a lapsed order.
II. That the said defendant, Y. Z., submit to an examination, as required in and by the said order for his examination, and for that purpose he appear at the place specified in said order on the day of , 19 , at o'clock in the
noon, to which time and place the said examination is hereby adjourned.
FORM No. 118. Order reinstating previous order, without prejudice, to proceedings to punish
for its disobedience.52
[After caption, as in Form No. 94 or 96, according to motion; and recitals, see Form 101] ORDERED, that the said i. B. and C. D. and each of them appear and attend at the [chambers] of this court, at the court house, in the city of , on the day of
19 , at o'clock A, M. of that day, and then and there submit to an examination under oath, spursuant to section 651 of the Code of Civil Procedure], and to the directions contained in said order of Judge J. K., dated
, 19 , which order is hereby reinstated, and that said persons obey in all things the said directions contained in said order.
This order is without prejudice to any motion plaintiff may bo advised to make to punish as for a contempt the said A. B. and C. D. for their alleged default in not appearing on 19 , in obedience to the said order of Mr. Justice J. K., dated
, 19 . [Ending as in Form No. 108.]
FORM No. 119. Clause in order, granting stay on condition of immediate appeal.63
And it is further ORDERED, that (after payment to the purchaser of the said dollars, less the said disbursements, by the said refereel, all further proceedings under this order are hereby stayed until the hearing and determination of an appeal from this order to the Appellate Division, provided said appeal be taken within twenty-four hours after the entry and service of a copy hereof, and provided that said appeal be argued or submitted at the [October] term of the Appellate Division. 52 See last note.
53 See paragraph 47, p. 233 (above).
FORM No. 120.
Clause in order staying proceedings for purpose of appeal.54 IT IS FURTHER ORDERED, that all proceedings on the part of the said C. D., after entry of this order and service of a copy thereof, be, and they are hereby stayed to await the hearing and decision of the Appellate Division on the appeal from this order, provided the plaintiff serve notice of such appeal forthwith after service of a copy of this order, and print and serve papers upon such appeal within [two] days thereafter, and shall argue or submit the appeal upon the first day the same can be argued or submitted.
FORM No. 121.
Clause dispensing with service.55 It is further ORDERED, that no service of this order is required to be made on the said defendants or their attorney, the order having been made in presence of their counsel, in open court.
FORM No. 122. Order denying motion and impounding papers for basis of prosecution for
perjury. [Caption as in Form No. 94 or 96, according to motion.]
Upon reading and filing the petition of J. L., dated and verified the day of , 19 , and the deposition of J. L. in behalf of the petitioner, and of E. G., opposed, and after hearing M. W., of counsel for petitioner in favor of the application, and H. W. for the judgment-creditor opposed :
It is ORDERED, I. That said application to [describe it, as discharge the receiver herein] be, and the same is, in all respects denied.
II. That H. W., Esq., a counselor of this court, is hereby directed, subject to the approval, and under the direction of the
54 See paragraph 47, p. 233 (abore).
55 Only useful in a doubtful case, where delay for service might be dangerous, or service is plainly un necessary. If the power of the court to dispense with actual service is not clear under the circumstances, actual service should be made, notwith
standing the insertion of such a clause. The proper mode of service to bring the other party into contempt, is explained in connection with SERVICE and CONTEMPT. See paragraphs 70, 71, pp. 243, 244 (above), as to service and correcting error in service.