because they were not mentioned in said order to show cause, and because the affidavits do not show facts sufficient to entitle plaintiff to judgment, and the court having therefore directed that said order to show cause be amended and that said motion be heard upon the pleadings and proceedings; and counsel for defendant G. having objected to such amendment as irregular and beyond the power of the court in such case, and having been heard in support of such objection, and the court having considered the same;

Now it is ORDERED, that said order to show cause be and the same hereby is amended by inserting at the beginning thereof the words "on the pleadings and proceedings in the above entitled action."

And on the pleadings72 in the above entitled action, and the said order to show cause and affidavit and after hearing M. N., Esq., in support of said motion, and G. B. G., Esq., of counsel for defendant, J. G., opposed to the motion, no other defendant appearing or opposing; and, on motion of J. S. D., Esq., attorney for plaintiff :

ORDERED, that the plaintiff [have judgment for the relief demanded in the complaint against the defendant, J. G., upon his answer as denying no material allegation of the complaint and as frivolous.

Enter:

FORM No. 133.

Notice of settlement of order.73

Please take notice that the within proposed order will be submitted to Hon. V. J. D., at his chambers in the County Court House, in the [Borough of Manhattan], on the day of 19 , at A. M., for settlement.

[Date.]

Yours, etc.,
A. B.,

Attorney for [plaintiff.]

[Address] To M. N., Esq.,

Attorney for [adverse party].

74

[Indorse upon, or annex to, proposed order.]"

72 See paragraph 27, p. 223, supra, as to reciting papers.

73 See paragraph 67, p. 241 (above), as to the right of an unsuccessful party to a notice of settlement, etc. The requirement of one or two days' notice of settlement of an

order containing anything but the most formal provisions is becoming almost universal.

74 Two days' notice will be usually sufficient, unless the judge in his opinion directs that longer notice be given.

FORM No. 134.

Notice75 of entry76 of order.77

[Usually written on the back of the copy order]78 Please take notice that an order, of which the within [or, annexed] is a copy, was this day duly entered in the within action in the office of the clerk of the county of [or, in a court other than the Supreme or County Court, in the office of the clerk of the within named court]."

[Signature and office address of80

[Date.]

[Address] To

Attorney for

Attorney for

FORM No. 135.

Notice of entry of Appellate Division order.81

[Title and Court, unless indorsed on back of copy of order.]

Please take notice that an order, of which the within [or, annexed] is a copy, was this day duly entered in this action in the office of the clerk of this court.82

Attorney for Appellant.

75 See paragraph 70, p. 243 (above), and cases cited as to the strictness of construction indulged in in testing the sufficiency of the notice.

See also paragraph 167, p. 156, (above), as to who must watch for a decision, and take notice of it.

76 See paragraphs 59-64, pp. 237240, for rules governing the entry of orders generally.

77 See, generally, Mason v. Corbin, 29 Ann. Div. 602, 51 N. Y. Supp. 178. 78 If written upon a separate sheet, entitle, and refer to the written or annexed order as entered in the "above entitled action."

Do not indorse the notice so as to be concealed when the paper is folded.

See Weeks v. Coe, 36 App. Div. 339, 55 N. Y. Supp. 263.

79 A notice that a judgment of the Supreme Court was entered “in the office of the clerk of the Supreme Court," was held ineffective in Liv ingston v. N. Y. El. R. Co., 60 Hun, 473. Also held bad when notice read "in the office of the Clerk of this Court," in Tudor r. Ebner, 109 App. Div. 521, 96 N. Y. Supp. 392.

80 Omission of the attorney's office address is fatal. See Forstmann r. Shulting, 107 N. Y. 644.

81 See notes to preceding Form and to paragraph 70, p. 243. as to strictness of construction of this notice.

82 In Guarantee Trust Co. r. Phila etc., R. Co., 160 N. Y. 1, it was held

FORM No. 136.

Clause in an order directing its entry in another county; 83 nunc pro tunc,84 or both.

86

It is further ORDERED, that this order be entered85 [and that the affidavits of W. B. H. and J. P. R., thereto annexed, be filed] in the office of the clerk of the [county of Westchester], in which county this action is triable nunc pro tunc as of the day of

19

[Under an order of court with such a clause, or a direction to enter in another county, the attorney for the prevailing party will take from the clerk a certified copy of the rough minutes, showing what papers were read or used with the affidavits and papers so used or read, with the order properly certified, and the attorney must file the papers and enter the order in the county directed in the order within ten days thereafter.]87

FORM No. 137.

Order compelling entryss of a judge's order made out of court, and the filings9 of papers.90

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

It appearing to my satisfaction [or, to the satisfaction of the court] from the [annexed] affidavit of A. B., attorney for the defendant [or other party], verified on the day of 19, and from the certificate of the clerk of this court, dated that the order of arrest [or other order] granted in this action by me [or, by this court] on the 19 , and the [complaint and affidavits of A. B. and C. D., verified on the

on the

day of

day of

19

day of

the order, because it is the duty of the clerk to refuse to enter the order unless the affidavits are filed with it. N. Y. Gen. Rule No. 3.

87 N. Y. Gen. Rule No. 3.

88 See paragraph 63, p. 239 (above), as to compelling the entry of an order generally.

89 For the rule as to filing motion papers, and the effect of neglecting to do so, see paragraphs 65 and 66, pp. 240, 241 (abore). On the general subject of filing and file marks, see Article on FILING, pp. 5362 of this volume.

90 See paragraph 8, p. 57 of this volume as to compelling the filing of papers generally.

19], upon which the said order of was granted, have not been entered [and filed], I do hereby order and direct [or, it is hereby ordered] that the plaintiff [or, defendant] enter said order [and file said papers] with the clerk of this court within days after the service of a copy of this order.

[Ending as in Form No. 108.]

[Under N. Y. Code Civ. Pro., § 1304, this order, when made for entry of a judge's order, may be made by the judge who made the original order, or, in his absence, by a judge of the court to which an appeal from the order may be taken.]

FORM No. 138.

Notice of motion, or order, to enter order nunc pro tunc.91 [Notice of Motion as in Form No. 47, p. 166, or Order to Show Cause as in Form No. 60, p. 179, inserting as relief sought:] That the order made herein, dated on the

of

day

19 , which has been drawn up, but by mistake omitted to be entered [within the time limited therefor by the rules of this court], may be entered nunc pro tunc, as of said last mentioned date [or, as of the

day of

FORM No. 139.

19 ].

Notice of motion to resettle order, specifying desired corrections.92

[Title of court and cause.]

Please take notice that upon [the annexed affidavit of A. B., verified on the day of

day of

19

o'clock in the

19, application will be made to this court at a Special Term thereof, to be held [at the City Hall, or, County Court House], in the [town] of on the noon, or as soon thereafter as counsel can be heard [or, if the application is to a judge and not to the court, to Hon. J. K., a judge of the court at his chambers at

on the day of noon] for an order day of

at

in o'clock in the

resettling the order entered herein on the [state in what way, as: by striking

19

91 As to when an order may be entered nuno pro tunc and limitations of the power so to do, see paragraphs 20, 64, 68, and 74, pp. 218, 219, 240, 242, and 245 (above). As to filing papers nunc pro tunc see paragraph 10, p. 57 and paragraph 66, p. 241 (above).

92 As to when and where to move for a resettlement, etc., see paragraph 72, p. 244 (above). See, also, paragraph 41, p. 96, as to what judge or court to move before in accordance with the principles laid down in paragraphs 33-35, 38, 39, pp. 91-94, of this volume.

out the recital in said order, of the affidavit of O. P., defendant's attorney, alleged to have been used on said motion in defendant's behalf; and by reciting in said order the preliminary objections taken by plaintiff on the hearing of said motion as specified in the said annexed affidavit of A. B.; and by inserting after the word "Fiske" on the line thereof, the following:

"and the appeal book and case on appeal in this action now on file," and by striking out the costs on the ground that the same were inserted by defendant's attorney without the authority of the justice, and against his decision;] and for such other or further relief as may be just [with costs of this motion.]

Notice of motion to resettle order to conform to a proposed order.93 [Title of court and cause.]

Please take notice that [upon the annexed affidavit of A. B., verified this day, a copy of which is herewith served upon you] application will be made to this court, at a Special Term thereof, to be held at [the City Hall, or, County Court House], in the [town] on the

of

the

day of

19 at

o'clock in

noon, or as soon thereafter as counsel can be heard [or, if the application is to a judge and not to the court, to Hon. J. K., a judge of the court at his chambers at

day of

in

o'clock in the

noon], for a resettlement of the order made and entered herein on the day of 19 so that the same shall conform to the annexed [or, within] proposed order [state irregularity if any relied on, and briefly specify reason for resettlement-see preceding Form] or for such other or further relief as may be just [with costs of this motion.]

[Date.]

[Address] To

[Signature and office address of],

Attorney for [moving party].

Attorney for [adverse party].

[Indorse upon, or annex, proposed Form of order.]

93 See note 92 on p. 280 (above).