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district attorney of the county of New York, to prefer and prosecute against the said J. L. a charge of willful and corrupt perjury in the testimony herein given by him.

III. That the clerk of this court is hereby directed to detain the petition, oath, and deposition of said J. L., and all other papers presented on this application, and hold the same for the purposes and use of said prosecution, and deliver the same on the demand of said district attorney, until the further order of this court.

[Ending as in Form No. 108.]

FORM No. 123.

Order of a judge that an additional paper may be read on a motion before him not yet heard.56

[Caption of judge's order, as in Form No. 96, unless indorsed on affidavit.]

Let the foregoing [affidavit] be read on the hearing on the return of the order to show cause granted by me herein on the inst., a copy of such affidavit and of this order to be served

this day.

[Date.]

[Signature of judge

FORM No. 124.

and initials of title.]

Order adjourning argument of motion.57

[After caption and recitals.]

And said motion having been reached upon the calendar, and an application having been made on behalf of the [defendant] for an adjournment of said motion [on account of the absence of H. J., of counsel for said defendant]; and after hearing A. B., of counsel for the plaintiff, opposed, it is ORDERED, that the argument of this motion be and the same is hereby adjourned until day of 19, [without prejudice, however, to an application by the defendant on said day for a further adjournment.]

the

56 That an order is necessary to enable such a paper to be served and read, see paragraph 113 and note 66, p. 132 (above). See Form No. 61, p. 180, for an example of an order to show cause, allowing papers to be served meanwhile. See also last clause in Form No. 60, at p. 180, for an example of leave granted to serve

the papers at a specified time before the hearing of the motion.

57 An attorney who appears at the call of the motion and consents to an adjournment, thereby appears for all purposes of the motion though not served with notice of motion. Grafton . Union Ferry Co., 13 N. Y. Supp. 878, 20 Civ. Pro. Rep. 238.

FORM No. 125.

The same; with leave to serve additional papers, and continuing injunction meanwhile,58

[Caption (unless the order is indorsed on the motion papers) as in Form No. 94 or 96, according to motion.]

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The hearing of the motion herein is hereby adjourned to the day of 19 same hour and place, with leave to the [plaintiff] to serve additional papers in support of the motion, on or before the

day of

19

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and the

19

to remain in full force until

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temporary injunction contained in the order to show cause granted on the

day of

an order is duly entered upon this motion.

[Ending as in Form No. 108.]

FORM No. 126.

The same; with continuance of appointment of receiver and injunction meanwhile.59

[Caption; see last Form.]

The motion to continue the appointment of the receiver heretofore made in this action, coming on this day to be heard, and the parties on both sides appearing by counsel, it is, on motion of A. B., of counsel for the defendant, ORDERED, that the said motion is hereby adjourned to the

day of

next, at

o'clock A. M., and in the meantime, and until the hearing and decision of the said motion, the appointment of receiver heretofore made is continued, and the injunctions issued herein are continued and confirmed.

[Ending, etc., as in Form No. 108.]

FORM No. 127.

Order of adjournment 60 on objection to jurisdiction, and continuing injunc

tion, &c.

[Caption (unless the order is indorsed upon the motion papers) as in Form No. 94 or 96, according to motion.]

The order to show cause, granted by Mr. Justice J. K., dated

58 See Form No. 74, p. 184, for an example of an order granting an adjournment for further preparation to oppose a motion, and without prejudice, etc. See also paragraphs 127, 128, pp 137, 138 (above), as to when adjournments are allowable, and as to reservation of objections

upon adjournment. See Forms Nos. 65, 66, pp. 181, 182, for stipulations extending time fixed by notice or order to show cause, for hearing the motion.

59 See note to preceding Form. 60 See last note but one.

on the

day of 19 , coming on to be heard, and M. N., Esq., of counsel for the plaintiff, appearing in support of the motion, and O. P., Esq., of counsel for some of the defendants, being now present, for the sole purpose of objecting that there is no court now in session, and that the justice present has no jurisdiction to make any order, and protesting on that ground against any order being now made:

ORDERED, that the hearing upon said order to show cause be and the same is hereby adjourned to the Special Term of this court, to be held on the day of 19, at the [City Hall], in the city of ; and in the meantime, and until the hearing and decision based upon said order, it is further ORDERED, that the injunction therein contained continue in force against all the defendants, and that the defendants not yet served show cause why they should not be restrained and enjoined as stated in said order which, with the affidavits upon which it is founded, is to be served herewith upon each defendant not yet served, at least four days before said adjourned day. [Ending, etc., as in Form No. 108.]

FORM No. 128.

Clause (in an order denying a motion) vacating a previous stay.62

ORDERED, that the said motion to vacate said judgment be, and the same is, hereby denied; and the stay of proceedings granted to the defendants herein by order, dated the same is, hereby vacated and set aside.

FORM No. 129.

19

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be, and

Order to show cause3 why a judge's64 order should not be vacated; with stay meanwhile.65

[Caption as in Form No. 94.]

Upon the annexed affidavits of Y. Z. [the defendant], and C. D. [his attorney], respectively verified the day of

19, and

tice J. K., dated the day of

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and on the order of Mr. Jus

19 , a copy of which is also annexed [and if the order to show cause be obtained by

61 See paragraphs 24 and 33, on pp. 85 and 227 (above).

62 See paragraph 47, p. 233 (above).

63 See paragraphs 105-111, pp. 127-131 (above), as to orders to show cause generally.

64 See paragraphs 33, 36, 38, pp. 91, 94, 95 (above), as to where to move to vacate a judge's order.

65 The practice in applying for such an order is sustained in West Side Bank v. Pugsley, 47 N. Y. 368.

one not a party add and upon motion of H. & W., attorneys for M. N.] it is

the

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ORDERED, that A. B., plaintiff above named or his attorneys, show cause at a Special Term [Part I.] of this court to be held at the [County Court House in the Borough of Manhattan] on day of 19 at 10:30 o'clock in the forenoon on that day, or as soon thereafter as counsel can be heard, why an order should not be made vacating and setting aside the said order granted by Mr. Justice J. K., and for such other and further relief in the premises as may be just [with costs of this motion]; and meantime, and until the order of this court, let all proceedings on the part of the plaintiff [and of the sheriff of the County of New York] be stayed.

[Date.]

[Judge's signature and

FORM No. 130.

official title.]·

Order of court to show cause why previous order opening default should not

be declared to have been waived.66

At a Special Term [etc., as in Form No. 94; or, if in first district, may be judge's order.]

[Title of cause.]

Upon the annexed affidavit of C. B. B., verified on the day of

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19 , and upon the pleadings and proceedings

in this action,67 it is

], on the

day of

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ORDERED, that the plaintiff in this action show cause before a special term [Part I] of this court to be held at [the County Court house in 19 at o'clock in the forenoon, or as soon thereafter as counsel can be heard, why the right and privilege given to the plaintiff by the order entered in this action on the

19

on the

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day of

of [vacating and setting aside the judgment entered herein day of 19 ], upon the terms and conditions specified in said order, should not be declared to be waived and abandoned by the plaintiff by reason of his failure to comply with its said terms and conditions; and why the plaintif should not be perpetually stayed and enjoined from serving the said order and from taking any proceedings thereunder; or why the defendant should not have such other or further relief as may be just [with the costs of this motion].

66 See paragraph 42, p. 231 (above), as to enforcing a con

ditional order.

67 They should be specified instead

of thus mentioned, in the order entered upon the application. See paragraph 27, pp. 223, 224, supra.

And meantime, and until the hearing and decision of the motion hereon, all proceedings on the part of the plaintiff are hereby stayed.

Service of this order and the annexed affidavit on or before shall be sufficient.

, 19

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[Ending as in Form No. 108.]

FORM No. 131.

Order on notice declaring previous order opening default to have been waived by non-performance of condition.68

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

69

19

of

[After recitals] ORDERED, that the said motion be and is hereby granted with ten dollars costs; and the plaintiff in this action is hereby declared and adjudged to have waived and abandoned the right and privilege given to him by the order made and entered in this action on the vacating and setting aside the day of 19 by reason of the failure of said plaintiff to serve the said order upon the defendant's attorneys, and to comply with the terms and conditions within a reasonable time after the entry thereof.

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day of judgment entered herein on the

of said order

And it is further ORDERED, that all further proceedings by or on behalf of the said plaintiff under the said order of 19, be and are hereby perpetually stayed and enjoined. [Ending as in Form No. 108.]

FORM No. 132.

Order amending order to show cause, and granting motion.71 [Caption as in Form No. 94 or 96.]

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day of

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On reading and filing the affidavit of A. B., verified the day of 19 , and the order to show cause granted by Mr. Justice J. K., thereon, and dated on the 19 ; and G. B. G., of counsel for defendant, J. G., having appeared on the return of said order to show cause herein, and taken the objections that the motion upon said order to show cause is not upon the pleadings and proceedings in this action,

68 Adapted from an order in the case of Harris v. Van Wagenen, 14 Wkly. Dig. 212; but on appeal the order was held, though otherwise sustainable, to be erroneous because an agreement of counsel was shown consenting to the delay.

69 For examples of recitals see Form No. 101, p. 259.

70 See note 66, p. 275 (above). 71 See paragraph 73, p. 244 (above), as to amending an order.

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