Page images
PDF
EPUB
[ocr errors]
[ocr errors]

FORM No. 141. Order to show cause why order should not be resettled94 generally.95 [Caption as in Form No. 96, p. 257.] Upon the affidavit of E. S. M., verified on the day of

19 the order to show cause, granted by Mr. Justice D. herein on the

day of

19 , and the attidavit of E. S. M., on which it was granted, the notice of motion to vacate the attachment, issued herein, the orders vacating such attachment, dated the

day of

19 , and respectively marked D. and E., all of which above mentioned papers are hereto annexed; and on motion of C. B. [appearing specially for this motion], let the plaintiff show cause before this court, at a Special Term [Part 1] thereof, to be held at the County Court flouse, in the Borough of Manhattan, on the dav of 19 at o'clock in the forenoon, or as soon thereafter as counsel can be heard, why the said order, dated

19 should not be resettled nunc pro tunc97 [on the ground of irregylarity in the entry of said order without notice of settlement), and why such other or further order or relief should not be granted as may be just. Service of a copy of this order on or before the day of

19, will be sufficient. [Date, signature, etc., as in judge's order in Form No. 108.]

FORM No. 142. Notice of motion for resettlement generally99 to conform to decision. [Title of court and cause.]

Please take notice that I shall apply to Mr. Justice B., at his chambers at the County Court House in the Borough of Manhattan], on the

day of

19 at 10.30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for a resettlement of the order made herein by the said Justice and entered herein on the

day of

so that the same

, 19

[ocr errors]

98 See

p. 241

94 See note 92, p. 280 (above).

95 This Form is not desirable ex. cept where the order as entered without settlement was so wholly wrong that the party is clearly not called on to disclose his amendments. Ordinarily it is necessary and advisable to disclose the grounds of criticism of the order as entered; see the two Forms next preceding.

36 See note 61, p. 274 (above).
97 See note 91, p. 280 (above).

paragraph 67,
(above), as to the right to a settle.
ment and notice thereof.

99 See note 95 (above).
1 See note 92, p. 280 (above).

shall conform to the decision made by said Justice, as follows [indicate in what particulars, and may annex copy of proposed order] : [Date.]

[Signature and office address of],

Attorney for [Address] To

Attorney for

[ocr errors]

FORM No. 143.

Indorsement on returning notice of resettlement as irregular.2 The within notice, served this day at [4.50 o'clock P. M.] is returned because:

1st. It is insufficient as to time. See $ 780, Code.

2d. The matters concerning which “ resettlement” is desired are not stated.

3d. The order entered is in strict conformity with the decision, [Date.]

[Signature and address of],

Attorney for [Address] TO Attorney for

[Keep a copy and proof of service.]

FORM No. 144.

Order of resettlement3 by consent.4 [Caption as in Form No. 94 or 96, according to motion.]

On reading and filing the annexed consent of the attorneys for the parties hereto , dated the

19 , and upon reading the order therein referred to, entered herein on the day of

19 and on motion of O. P., attorney for [plain

day of

[ocr errors]
[ocr errors]

ORDERED, that said order be resettled by reciting therein as read on the motion on which said order was made, and as filed, the following papers referred to in said consent [designating them), and to that end it is further ordered that that part of the recitals of said order reading as follows [quote] be and the same

2 See

paragraph 14, p. 198 (above). See also paragraph 3 at P. 45 (above), as to returning defective copies promptly, with notice of specific objection thereto. 3 See paragraph

72, p. 244 (above),

4 That an order by consent cannot be modified or resettled in an essential part without the assent of both parties, see paragraph 75, p. 245 (above).

is hereby amended nunc pro tunc as of the date thereof] so as to read as follows: “ [specifying]'

[Date, signature, etc., as in Form No. 108.]

FORM No. 145.

day of

[ocr errors]

Order resettling order; full Form.5 [Caption as in Form No. 94 or 96, according to motion.]

A motion having heretofore been made to resettle the order made and entered herein, bearing date the

19 [vacating the order of arrest], and the said motion duly coming on to be heard; Now, on reading and filing the notice of motion for resettlement [add other papers if any), and after hearing L. J. G., Esq., of counsel for plaintiffs, in favor of the motion, and J. D., Esq., of counsel for the defendant, opposed, and on motion of C. W. D., attorney for the plaintiff, it is ORDERED, that the said order of

19 be and the same hereby is resettled so as to read as follows [here insert fresh order at full length, thus]: 8 [Name of [court] or, if a court order] : At a special term

[etc., as in Form No. 94.] [Title of cause.]

On reading and filing [and so on to the end of the order as resettled].

[Ending as in Form No. 108.]

[ocr errors]

FORM No. 146. Order resettling7 ordering part of an order continuing an injunction. [Caption as in Form No. 94 or 96, according to motion.]

The defendants, S., J., B., and The National Bank of North America, having moved to resettle the order entered in this action on the day of

19 [specifying briefly its character] upon the papers upon which said order was made; Now,

[ocr errors]

5 See
paragraph 72, p.

244 (above), as to its being the better practice to recite at length the order as resettled, etc.

6 Resettlement in this way vacates the order as originally entered. Matter of Peekamoose Fishing Club, 5

App. Div. 283, 39 N. Y. Supp. 124.
Therefore the order should be quoted
in its entirety.
7 See paragraph 72, p.

244 (above), and notes to preceding Form.

after hearing Mr. S., in favor of said motion, and Mr. N., opposed :

ORDERED, that the said order be, and it is hereby resettled so as to read after the recitals therof, as follows:

ORDERED, that the said injunction be, and the same hereby is continued [etc.].

[Ending as in Form No. 108.]

FORM No. 147.

day of

Order resettling by directing amendments of previous order, without prejudice,

and on condition of facilitating review on appeal. (Caption as in Form No. 94 or 96 (above).]

The plaintiff's motion for the resettlement of an order made and entered in this action on the day of

19 allowing the plaintiff to amend the complaint herein, coming on to be heard ; now, On reading and filing the affidavit of II. F., verified on the

19 and the notice of this motion dated upon the same day thereto attached, with due proof of service thereof, and on reading the printed Appeal Book, on the first appeal herein, on file in the office of the clerk of this court, these being read on the part of the plaintiff; and on reading and filing the affidavit of J. H. D., verified on the

day of

19 and on reading the judgment roll in this action filed in the office of the clerk of this county on the

day of 19 , containing therein the order of

which is sought to be resettled upon this motion, and the motion papers used upon the motion for said order now sought to be resettled, on the part of defendant;

And after hearing H. F., Esq., of counsel for the plaintiff, in favor of this motion, and J. H. D., Esq., of counsel for defendants in opposition, and on motion of M. N., attorney for plaintiff: ORDERED, that the said order herein, dated and entered on the day of

19 , permitting an amendment to the complaint in this action, be amended and resettled nunc pro tune, as of said last mentioned date [indicate clearly the extent thereof, 25: by inserting, after the word “Fiske," in the first line thereof, the following: “And the Appeal Pook or case on appeal in this

19

[ocr errors]
[ocr errors]

9 See note 91, p. 280 (above).

8 See paragraphs 73–75, pp. 244245 (above), as to the power of the court or judge to amend an order and the limits thereof.

action now on file."] ['pon condition, however, that such resettlement shall be without prejudice to the defendants' right to have said order, as now resettled, reviewed upon the pending appeal from said order, as the same was entered on the

19 and without prejudice to the appeal heretofore taken from the judgment rendered in this action.

[Ending as in Form No. 108.]

day of

[ocr errors]

FORM No. 148. Direction in order of resettlement that correction be made in original order

pending appeal, without prejudice, etc.10 [Where order is not recited at length]." And the clerk of this court is hereby directed to alter the said order as above, and to make on the margin thereof proper reference to this order. The present order being without prejudice to the appeal now pending from the order as originally entered, and without prejudice to any motion that defendant may be advised to make in reference to said appeal, and upon condition that the papers on said appeal remain valid upon a modification of the order appealed from being made in accordance with the resettlement hereby made.

[ocr errors]

FORM No. 149. Clause in order resettling an order settled or made but not entered.

[Add at end of order as resettled :] This order is a resettlement of an order made and settled herein by [Hon. J. A. B.], on the day of

, and is hereby substituted instead of said order of that date [and is to be entered as of that date nunc pro tunc].12

FORM No. 150.

Order denying motion for resettlement. [Caption as in Form No. 94 or 96 (above).]

A motion having been made by the defendant for a resettlement of the order [denying his motion for leave to serve supplemental answer herein), entered on the

day of

19 , and said motion now regularly coming on to be heard; [now on reading and filing the affidavit of M. N., in support of said motion,

[ocr errors]

10 If the result of the resettlement makes useless papers on appeal already printed, the terms on permitting resettlement should these disbursements. See Matter of Post, 14 N. Y. Supp. 205, 38 St. Rep. 1.

11 See paragraph 72, p. 244 (above), as to reciting at length. 12 See paragraph 68,

p.

242 (above), for a qualification of the general power to enter nunc pro tunc.

cover

« PreviousContinue »