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19 in opposition, and], after hearing W. H., Esq., of counsel for the defendant, in favor thereof, and T. A., Esq., of counsel for plaintiffs, in opposition:
ORDERED, that the said motion for resettlement be, and the same hereby is denied, and that said order stand in all things confirmed.
[Ending as in Form No. 108.]
FORM No. 151.
Order denying motion to resettle, and interpreting the former order. (Caption as in Form No. 94 or 96, according to motion.]
[After recitals13] ORDERED, that said motion to modify or resettle the order entered in this action on the
be, and the same is hereby, in all respects, denied, and the true intent and meaning of said order is that defendant may amend its answer on payment of the costs, as adjusted by the clerk, at the sum of dollars, and excluding the costs of plaintiff's appeal herein to the Appellate Division, and all other costs of motions heretofore made in this action, which, by the terms of the orders awarding them, were directed to abide the event of the action.
[Ending as in Form No. 108.]
FORM No. 152. Direction of judge who has granted an order to show cause, modifying the
time of return.14 [l’nderwritten on the order to show cause15] The above order is modified so as to make it returnable to-morrow at place of next day.
[Date.] [Signature of judge, with initials of title.].
A. M., in
13 For examples of recitals, see Form No. 101, p. 259 (above).
14 In a case where time for service of the order has not yet elapsed ; but if elapsed, then the time specified for service in the order should also be modified.
15 That the order itself should contain a clause restricting the time for the service thereof, and that the
length of time is discretionary, subject to review, etc., see paragraphs 107–109, pp. 129-130, of this volume.
Should the order be about to fail because of a failure to serve within the time limited, the judge granting it (or any other judge of the court) may extend the time of return and of service by merely initialing the changes of date.
FORM No. 153
Notice of motion for reargument.16 [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
19, at the opening of the court [or, 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 this court at his chambers, in 19, at o'clock in the noon), for a reargument of the motion [designating motion as, for the appointment of a receiver of the rents of the premises described in the complaint] upon the ground that [state ground for rearguing as, the court has overlooked a controlling decision of the Appellate Division of the Supreme Court, which is decisive of the application in favor of plaintiff], or for such other or further relief as may be just. [Dale.]
[Signature and office address of],
Attorney for [moving party]. (24ddress] To
Attorney for [adverse party].
FORM No. 154. Order to show cause why motion should not be reargued, 17 and why re
argument should not immediately proceed;18 with stay meanwhile. [Caption as in Form No. 94 or 96, according to motion.]
On [specifying papers],19 let the defendants show cause before me at the chambers of this court in the county court house, in the borough of Manhattan, on the
, 19 , at o'clock in the forenoon of that day, or as soon thereafter 16 See Form No.
188 to reargue, and for an immediate re(abore), for an example of notice argument upon such leave being of motion for a rehearing after de granted may be combined in one nocision rendered, etc., specifying tice or order to show cause and that grounds of the motion. For the dis in some cases an actual reargument tinction between a rehearing (or re may be necessary because the arguargument) and a renewal, and as ment for leave to reargue may not to when, and where, and how to ap involve the reargument itself, see par. ply for a rehearing, see paragraphs agraph 170 and note 5 thereto, on 168-171, pp. 157-159 of this volume, p. 159 of this volume. and cases there cited.
19 See Form 60, p. 179, as to re17 See preceding note.
citals in Order to Show Cause. 18 That notice of motion for leave
as counsel can be heard why the motion [to vacate the attachments granted herein) should not be reargued on the grounds [specifying them — see preceding Form]; and if a reargument thereof be granted, why it should not then and there proceed.
And until the hearing and determination of this rehearing, let the defendants, and each of them, their attorneys and servants, be and they are hereby stayed from proceeding in any manner, in respect to such attachments, until the further order of this court.
Service hereof, and of the annexed affidavits if made on or before the day of
19 shall be sufficient, and service of any additional papers or affidavits in support of this motion
19 [Date, signature, etc., as in Form No. 108.]
FORM No. 155.
Clause in a new order vacating former order, and directing stay of entry
nunc pro tunc. And it is further ORDERED, that the former order herein, made and entered on the
19 be and the same hereby is vacated and set aside, and that this order be entered nunc pro tunc20 as of said
19 and for and in place thereof.
FORM No. 156. Order of court amending a judge's order which had been made in form of a court order, by striking out court caption and direction to enter.21
At a Special Term [etc., as in Form
No. 94]. [Title of cause.]
On reading and filing the affidavit of A. B., verified the day of
19 and on motion of [etc.] ; ORDERED:
20 See note 12, p. 286.
21 Sustained by Coffin r. Lester, 36 Hun, 347 ( affirmed without opinion in 110 N Y. 645), and cases cited. It must be made by the court or by the judge who made the original order. Dinkelspiel v. Levy, 12 id., 130. Notice of application for such an order is not necessary. Coffin v. Lester (above).
a judge's order, and that an appar-
See also paragraph 16, p. 215 (above), as to the proper form of
But that an order of a judge is not available as a court order, see paragraph 15, p. 215 (above). Ая to the
of determining to which of these classes an order of doubtful character belongs, see also paragraph 11, pp. 212, 213 (above).
I. That the order made herein on the
19 and filed with the clerk of this court, directing the service of the summons herein by publication on certain of the defendants in this action, be, and the same hereby is, amended by striking there from all of such order which precedes the title of the suit, and! by inserting in the place thereof the words, “ Supreme Court, City and County of New York."
II. That the direction to enter the said order at the foot thereof, preceding the initials of the justice granting the same, be also stricken from the said order.
IlI. That these amendments are to be nunc pro tunc23 as of the day of
19 , the day of the granting of said order of publication and to be without prejudice to any proceedings had thereunder or in said action.
and title of presiding judge.]
FORM No. 157. Order to show cause why party should not have leave to submit additional
affidavit and thereupon have reargument.24 [As in Form No. 60, p. 179, inserting, as relief sought:] Why [defendant) should not have leave to submit an affidavit in reply to W. B. H.'s affidavit read upon the motion (for an extra allowance), and thereupon why said motion should not be reargued, or why defendant should not have such other or further relief as may be just.
22 See note 37, p. 295 (above).
In Georgia, if, by mistake, a jus. tice in issuing an attachment omits to append to his signature the usual official addendum (J. P.) which indicates that his signature is official, he may amend nunc pro tunc in the Superior Court by appending the letters. The jurat, the court says, is no part of the affidavit; it is only the officer's entry, and why should it not be amendable! Murf. Just. Prac., § 332, citing Dickson 1. Thurmond, 57 Ga 153; Veal v. Perkerson, 47 Ga, 92.
23 See paragraphs 68 and 73-75, pp. 242 and 245 (above), as to the power to amend nunc pro tunc, and the limitations of such power. For other examples of orders amending previous orders, see Forms Nos. 166 and 167, pp. 294, 295 (below). See Form No. 81, p. 187, of this volume, for an example of an order amending a previous affidavit to meet an objection thereto.
24 See notes 16 and 18, p. 288 (above).
FORM No. 158. Order to show cause why motion should not be reargued 25 or party have
leave to renew,26 with stay meanwhile.
[As in Form No. 60, p. 179, inserting, as relief sought:] Why the motion for [briefly indicate character] heretofore made herein should not be reargued, or why the said defendant should not have leave to renew the said motion [to vacate the attachment granted herein on the
19] and why the said motion should not be then and there heard on the papers read upon said motion and the additional papers annexed hereto and mentioned herein, and why said attachment should not be vacated on the ground [stating irregularities, if any], or for such other or further order as may be just; and in the meantime, and until the hearing and decision of this motion, let all proceedings on the part of the [plaintiffs] herein be stayed.
FORM No. 159. Order to show cause why there should not be a reargument27 or renewal,28
or a stay pending appeal. [As in Form No. 60, p. 179, inserting, as relief sought:] Why the said defendant shall not be permitted to have a reargument of the motion to [state character of motion] heretofore made before Justice B., or why said defendant shall not be permitted to renew said motion upon new papers, and, in case said motions are not granted, why a stay of all proceedings on the part of the plaintiff, his assignee and their attorneys, be not granted pending the appeal from the order of Mr. Justice B. referred to in the annexed affidavit.
And for the reasons set forth in the annexed affidavit, service of a copy of this order upon the attorneys for the plaintiff and his assignee on or before the day of
19 , shall be sufficient, and in the meanwhile, and until the hearing of this motion, let all proceedings on the part of said plaintiff, his assignee and their attorneys be, and the same are hereby stayed.
FORM No. 160. Order allowing reargument or renewal as moving party may be advised.29 [Caption as in Form No. 94 or 96.]
[.1fter recitals] ORDERED, that the defendant be and he is hereby permitted to reargue the motion heretofore made herein for 25 See last note (above)
28 See note 92 to Form No. 139, 28 See note 92 to Form No. 139, p. 280 (above). p. 280 (above).
29 That the court may allow either 27 See note 24 (above).
or both in the alternative, see para