« PreviousContinue »
[the discharge and cancellation from the record of the judgment docketed herein), upon the original papers, or to renew said motion upon new papers, as said defendant may be advised.
[Ending as in Form No. 108 (above).]
FORM No. 161. Order denying motion for reargument, but granting leave to renew after
service of papers.30 [Caption as in Form No. 94 or 96 (above). ]
[After recitals31] ORDERED, that the said motion be and the same hereby is denied, but with leave to [defendant] to renew his motion for a reargument of the original motion for an extra allowance) upon [state any condition precedent imposed, as], service upon plaintiffs' attorney of copies of the affidavits which defendant proposes to read in reply to (plaintiffs'] affidavit read upon said original motion.
[Ending as in Form No. 108.]
FORM No. 162. Order allowing reargument32 and denying motion after reargument had. [Caption as in Form No. 94 or 96, according to motion.]
A motion having been made on behalf of the defendants herein, to vacate and set aside the warrant of attachment heretofore granted against the property of said defendants], and said motion having been duly heard, and decided against the [plaintiffs on the ground that the debt sued upon was not due at the time of the issuance of the attachment]; and after the rendering of such decision, and before the entry of the order therein, a motion having been made on behalf of the (plaintiffs], for a reargument of the said motion, and such reargument having been allowed, and the same having been duly heard,
Now, upon reading the said warrant of attachment and the papers upon which the same was granted, and on reading and filing] the affidavits of M. H. and L. W., verified 19, and the order to show cause granted thereon by Mr. Justice J. K.,
graph 168, p. 157, of this volume ; for the distinction between a gument and a renewal and for the rules applicable to each, see pp. 157– 165 of this volume.
30 See paragraph 173, p. 160, of
this volume as to when leave to renew may be granted.
31 For examples of recitals see Form No. 101, p. 259 (above).
32 See paragraph 169, p. 158, of this volume as to when a reargument may be allowed.
19 and, on the reargument, the affidavits of A. B. and G. F. V., verified 19 , in support thereof, and after hearing A. B., of counsel for [plaintiffs], in support of said motion, and J. D., of counsel for [defendants], in opposition thereto, and after hearing both of said counsel on said reargument, and on motion of J. D., defendants' attorney, it is
ORDERED, that said motion be and the same is hereby in all respects denied, [with ten dollars costs.]
[Ending as in Form No. 108 (above).]
FORM No. 183.
The same; another Form, Caption as in Form No. 94 or 96 (above).]
The defendant having heretofore moved this court for ar. extra allowance herein, by way of costs, and said motion having been denied, and the defendant having thereafter moved for a reargumnt of said motion, and for leave to file an affidavit of E. P. W. in reply to the affidavit of W. B. H., submitted in opposition to said motion, and the court having, on the day of
19 denied said motion, with leave, however, to the defendant to renew said motion, upon first serving a copy of said proposed replying affidavit upon plaintiffs' attorneys. And the defendant having thereupon served a copy of said replying affidarit and renewed said motion for an extra allowance upon said affidavit,
Now, on reading and filing the said affidavit of E. P. W., and upon the papers read upon the original motion hereinbefore mentioned, and on motion of 0. P., defendant's attorney,
It is ORDERED, that so much of the defendant's application as asks for a reargument of the original motion for an extra allowance herein, be, and the same is, hereby granted.33
And the said motion having been thereupon reargued upon the papers aforesaid, by E. P. W., Esq., on behalf of the defendant, and W. B. H., Esq., for the plaintiffs in opposition thereto; now, on motion of W. B. H., attorney for plaintiffs,
It is ORDERED, that the said motion for an extra allowance herein be and the same is hereby denied, with ten dollars costs to plaintiffs.
(Ending as in Form No. 108 (above).]
33 See par. 169, p. 158.
FORM No. 164. Order granting leave to renew on the merits and upon additional papers. 24
[.After proper recitals of papers submitted on the application.]
ORDERED, That the defendant have leave to renew upon the merits his previous motion [specify briefly, as] to vacate the order for his examination before trial, to be heard upon such further affidavits in addition to the original papers as may be then presented.
FORM No. 165.
Consent to amendment of order.35 [Title of court and cause.]
It is hereby agreed that the order made and entered herein on the day of
19, [granting alimony and counsel fee to the plaintiff as therein specified] be amended so that it may be specified therein, that the papers used on behalf of said motion for plaintiff were [here designating them]; and that those in opposition were [designating them]; and that an order may be entered hereon without notice pursuant to this stipulation. [Date.]
[Signatures of attorneys.]
FORM No. 166. Order by consent amending previous order of court.36 [Caption as in Form No. 94 or 96.]
On motion of M. & S., attorneys for the plaintiff, and on the annexed consent of the attorneys for the respective parties to this action, ORDERED, that in the order made and entered in this action, day of
19 , the words “ and the pleadings herein," be added after the words " and the affidavits of F. F. and W. S. J."
34 The Appellate Division will disregard technical defects in the original papers upon an appeal from an order made on the renewed application. See Matter of Tweedie Trading Co., 105 App. Div. 426, 428, 94 N. Y. Supp. 167, 35 Civ. Pro. 6.
35 That consent is necessary to an essential amendment of an order made by consent, see paragraph 13, p. 245 (above).
36 See last note (above).
And the clerk is directed to make this amendment upon the margin of the original order, with a reference to this order as directing the same. 37
[Ending as in Form No. 108.]
FORM No. 167. Order amending order of court, nunc pro tunc,38 but saving proceedings had. [Caption as in Form No. 94 (above).]
Upon the summons and pleadings herein, and on reading and filing the affidavit of H. K., verified
and on hearing H. K. on behalf of plaintiff, and M. N., Esq., on behalf of the adult defendants (and Mr. O. P. as guardian ad litem]; now, on motion of H. K., attorney for plaintiff, it is
ORDERED, that the order heretofore made and entered herein on the day of
19 , [briefly stating its character], be and the same hereby is amended nunc pro tunc so as to read as follows, viz. [setting forth order in full as amended.] 39
And it is further ORDERED, that the testimony herein already taken, and all proceedings had before said referee, stand as if taken under the said original order as amended by this order.
FORM No. 168. Order by court to show why judge's order should not be modified.40 [Caption as in Form No. 94.]
On reading and filing the annexed affidavit of A. B., verified the
19 and on the orders therein referred
37 See Forms 26–34 on pages 20–24 of this volume, as to the different modes in which a paper may be amended, and as to the better practice being to prescribe the mode in the order allowing the amendment, so that there may be no doubt as to the power and duty of the clerk. See Forms Nos. 33 and 34, p. 23, of this volume, for examples of orders prescribing the mode of amendment.
38 See note 91, p. 280, and note 8, p. 285 (above).
39 See last note but one (above). For other examples
amending prior proceedings, Forms Nos. 33, 34, 81, 146, 156, and 166, on pp. 23, 187, 284, 289, and 294 (above).
40 See Form 64, p. 181, of this vol. ume, for a Notice of Motion to amend or resettle an order of court. See Form No. 27, p. 21, of this volume, for an example of an affidavit to obtain order to annex by amendment an omitted clause in a prior order. See, generally, as to amendments, etc., paragraphs 72-74, pp. 244, 245 (above).
to, and on [all the pleadings and proceedings herein" and on motion of A. B., plaintiff's attorney:
ORDERED, that the defendant (and P. B., late sheriff of the county of New York] 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 the
o'clock in the forenoon, or as soon thereafter as counsel can be heard, why the order of Mr. Justice D., entered herein on the
das of 19, dated the
, 19, [briefly identifying its character], should not be modified by [here brie, ly indicate proposed amendments, 12 indicating ground, specifying irregularities if anys), or why such other or further relief should not be granted in the premises as may be just, together with the costs of this motion. Service of this order on or before the
inst. shall be sufficient.44
[Initials and title of judge.]
FORM No. 169.
At a Special Term [etc., as in Form No. 94.] [Title of cause. ]
The plaintiff having moved this court for an order striking out certain portions of an affidavit as hereinafter specified, and said motion regularly coming on to be heard;
Now, on reading and filing the notice of motion, dated the day of
19 and the affidavit of A. B., verified the
19 , and on inspecting the said [objectionable paper] therein mentioned, which was filed herein the day of
19 and after hearing M. N., of counsel for (plaintiff], and O. P., of counsel for [defendant), and after due consideration; now, on motion of M. N., attorney for [plaintift?:
ORDERED, 1, that [describing the matter - for instance, thus · all that part of said affidavit following the sentence ending with
41 It is better to specify what papers, etc.
42 See note 37, p. 295 (above). 43 See paragraph 110, p. 131.
44 See paragraph 114, p. 133, as to mode of service of an order to show
or of its own motion) to expunge scandalous or impertinent matter, or to suppress the paper containing it. and as to when application therefor may be made.
As to what consti: tutes scandalous or impertinent mat: ter, and that a paper containing such matter may be struck off the files and destroyed, see paragraph 18, p.
45 See paragraph 142, p. 144, as to power of the court (on application,