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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 pleadings 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 Í. 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.
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.
A. B., [Date.]
Attorney for [plaintiff.] [Address] To M. N., Esq.,
Attorney for [adverse party].
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]." [Date.]
[Signature and office address of so
Attorney for [Address] To
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 [Dated.]
[Office address. ] То
Attorney for Appellant. 75 See paragraph 70, p.
243 See Weeks v. Coe, 36 App. Div. 339, (above), and cases cited as to the 55 N. Y. Supp. 263. strictness of construction indulged 79 A notice that a judgment of the in in testing the sufficiency of the Supreme Court was entered in the notice.
office of the clerk of the Supreme See also paragraph 167, p. 156, Court,” was held ineffective in Liv. (abore), as to who must watch for ingston v. N. Y. El. R. CO., 60 Hun. a decision, and take notice of it. 473. Also held bad when notice read
76 See paragraphs 59-64, pp. 237 “in the office of the Clerk of this 240, for rules governing the entry of Court.” in Tudor 1. Ebner, 109 App. orders generally.
Div. 521, 96 N. Y. Supp. 392. 77 See, generally, Mason 1. Corbin, 80 Omission of the attorney's office 29 Ann. Div. 602, 51 N. Y. Supp. 178. address is fatal. See Forstmann 1.
78 If written upon a separate sheet, Shulting, 107 N. Y. 644. entitle, and refer to the written or 81 See notes to preceding Form and annexed order entered in the to paragraph 70. p. 243. as to striet“above entitled action."
ness of construction of this notice. Do not indorse the notice so as to 82 In Guarantee Trust Co. r. Phila be concealed when the paper is folded. 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. It is further ORDERED, that this order be entered 85 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
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 entry88 of a judge's order made out of court, and the
filing89 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,
date day of
that the order of arrest (or other order] granted in this action by me (or, by this court] on the day of
19 and the [complaint and affidavits of A. B. and C. D., verified on the
not to impair that an
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.
239 (abore), as to where an orda should
84 See note to Form 138 on next page (below).
86 The usual practice to provide for the entry in another county is for the judge to write “Enter in county" at the foot of the order and above his initials.
86 The clause in these brackets is linnecessary if the affidavits are prop. erly mentioned in the minutes or in
87 N. Y. Gen. Rule No. 3.
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 or 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 day of
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
FORM No. 139. Notice of motion to resettle order, specifying desired corrections.82 [Title of court and cause.]
Please take notice that upon [the annexed affidavit of A. B., verified on the
, 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 day of
19, at o'clock in 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
in on the day of
19 at o'clock in the noon] for an order resettling the order. entered herein on the day of
19 [state in what way, as: by striking
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 park graph 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"
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.] [Date.]
[Signature and office address of,
Attorney for [moving party). [Address] To
Attorney for [adverse party].
FORM No. 140.
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] of
at o'clock in 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
19 at 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.]
[Signature and office address of],
Attorney for [moving party]. [Address] To
Attorney for [adverse party].
93 See note 92 on p. 280 (above).