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and preceding the sentence beginning with the words
], be, and the same is hereby stricken out as scandalous and impertinent.
2. That 0. P., the said attorney for [defendant), is hereby ordered to pay to [plaintiff] or his attorney forth with, upon (or, within days after] the service of a copy of this order, ten dollars, cost of this motion, hereby charged upon him personally 46 for his misconduct.7
FORM No. 170.
The same; another Form.48
ORDERED, that [defendant's] attorney have leave to withdraw from the files the affidavit of Y. Z., verified the
day of 19, and filed herein the
day of 19 , within two days after service of a copy of this order and on payment to [plaintiff], or his attorney, of ten dollars costs of this motion, which he is hereby directed to pay personally for his misconduct.
It is furthered ordered, that on failure of defendant's attorney go to do, plaintiff's attorney may withdraw and destroy said affidavit.
60 of this volume, and cases there cited.
See Form No. 46, p. 62, of this volume for a Notice of Motion to take a scandalous or impertinent affidavit off the files.
46 That the attorney presenting much affidavits may be personally charged with costs, see paragraphs
18 and 142, on pp. 60 and 144 (above).
47 So that there may be a commitment for non-payment. See another Form as to costs, Form No. 101, p. 259 (abore).
48 See note 45, p. 296, and last two notes (above).
FORM No. 171. Order of judge, ex parte, vacating an order granted by him ex parte, 49 [Title of court and cause.]
I hereby vacate and discharge the order [of arrest] made by me in this action on the
, 19. [Date.]
[Signature and title of judge.]
FORM No. 172.
At a Special Term [etc., as in Form No. 94,
p. 255.] [Title of cause.]
On reading and filing [designating papers, if any], and on inspecting the order granted by the court herein dated and entered on the
19 , requiring [briefly identifying it], and on the application of M. N., attorney for the
ORDERED, that said order of be and the same is hereby vacated and discharged.
FORM No. 173. Order by judge to show cause why he should not vacate his order.51 [Title of court and cause.]
Upon the affidavits (or other papers] on which the order of arrest, dated the
19 was granted by me herein, let the [plaintiffs] show cause before me, at
49 That an ex parte order cannot be appealed from directly, see paragraph 82, p. 249 (above). See, also, paragraphs 33, 36, and 51, on pp. 91, 94, and 100 of this volume, as to the power of a judge to vacate ex parte his ex parte order, and as to the rules governing an application to vacate a judge's order. generally, as to getting rid of an order, paragraphs 76–85, pp. 246–250 (above).
50 See paragraphs 34, 35, and 38, pp. 91-95 of this volume, as to the power of the court, ex parte, to va
cate its own ex parte order, and as to the rule of policy that one judge holding Special Term should not assume to vacate or modify an order made at Special Term held by another judge except in the case of the absence, disability, etc., of the lat. ter, or in case the order was made by default. See also paragraphs 76– 80, pp. 246–248 (above).
51 See paragraphs 33, 36, and 51, pp. 91, 94, and 100 of this volume, for the rules governing an applica. tion to vacate a judge's order.
in the city of
19 at in the noon of such day, or as scon thereafter as counsel can be heard, why the said order of arrest herein granted by me should not be vacated and set aside [if for irregularity, specify it62 and any other ground], and for such other or further relief as may be proper. Service hereof, made on or before the
19 shall be sufficient. [Date.]
[Signature and initials of title of judge.]
FORM No. 174.
Order of court to show cause why judge's order should not be set aside, 53
with stay meanwhile. At a Special Term [etc., as in Form No. 94,
[Title of cause.]
19 [and upon the summons and complaint in this action], and on the motion of S. H., attorney for
let the [plaintiff] 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 first
19 at o'clock A. M. of that day, why the [here concisely identify the order], entered herein on the
19 should not be vacated (and if for irregularity add — on the ground that — specifying irregularity54 and any other ground). And in the meantime, and until the hearing and decision of this motion, all proceedings of plaintiff [and on the part of the sheriff of the county of , toward the executing or attempting to execute the writ of assistance issued in this action], be and they hereby are wholly stayed.
52 See paragraph 110, p. 131, of this volume.
53 See last note but one (above), and compare paragraph 36, p. 94, as to its not being regular to apply
to the court to vacate a judge's ex parte vacatur of his own ex parte order.
54 See paragraph 110, p. 131.
FORM No. 175. Order of court on notice, vacating court order made ex parte or on notice. 55
At a Special Term [etc., as in Form No. 94,
p. 255.] [Title of cause.] A motion having been made on behalf of the defendant, A. B., day of
, 19, to vacate the order (of injunction, or other order] heretofore granted by the court, upon the papers upon which the said order was granted (and also upon affidavits upon the part of the defendant, or other moving party]: Now, on reading and filing the said order [briefly identifying it), and the complaint, and the affidavits of (specifying the persons], verified on the day of
19, being the papers upon which the said order was granted by this court on the day of
19 [and upon reading and filing the affidavits of C. D. and E. F., verified on the
, 19 presented upon the hearing of the motion in behalf of the defendant — or other moving party — and upon reading and filing the affidavits of G. H. and I. I., verified on the
day of 19 , offered by the plaintiff in support of said order, and read in opposition to this motion] and after hearing M. N., Esq., of counsel for the [defendant] in support of the motion, and O. P., Esq., of counsel for the [plaintiff], in opposition thereto; and on motion of Q. R., attorney for the [defendant]:
ORDERED, that the motion be and the same is hereby granted, and the said [injunction] order dated and entered on the day of
19 , be and the same hereby is wholly vacated and discharged.
FORM No. 176. Affidavit to move to vacate order for neglect to file papers.56 [ Title of court and cause.] [Venue.]
E. M. N., being duly sworn, says: I. That he is one of the attorneys for the above-named plaintiffs. 65 See paragraphs 34, 35, and 38, As to whether a court order should pp. 91, 92, and 95 of this volume, for be entered before moving to vacate the rules as to vacating a court order. it, see paragraph 40, p. 96. And see paragraphs 76-80, pp. 246– 66 See paragraphs 65 and 66, pp. 248 (above).
240, 241 (above), for the rule as to
II. [State condition of cause, as] : That the trial of the above entitled action has been had, in the county of New York, and the judgment roll has been duly entered therein, and is now on file in the clerk's office of said county. III. [State making of motion, as] That on the
19 a motion made by the defendant for [state character] was duly heard in this court, and on the day of
19 , an order was duly made thereon granting the said motion, which order was entered on said day.
IV. That the affidavit of W. B., Esq., verified the day of
19 , a copy whereof is hereunto annexed, was the only affidavit used on said motion; and that annexed hereto, with said affidavit, is a copy of the order to show cause granted by Mr. Justice J. K., on which said motion was made, and the order entered thereon.
V. That deponent presents herewith the certificate of the clerk of the county of New York, that he has made diligent search in his office for the original order to show cause and affidavit, and that neither one of them can be found [or, alleged search by deponent.]
VI. That deponent asks for an order to show cause returnable in less than [eight] days, why said order of
19 should not be vacated for defendant's neglect to file said motion rapers. That the reason why an order to show cause is asked, is because [state facts showing necessity therefor — see page ,] there is not time to give the usual notice of motion.
VII. That no other application has been made for such an order as is now sought. [Jurat.]
(Title of cause.]
On the annexed affidavit of E. M. N., and on the order to show cause for, notice of motion), dated the 19 and the affidavit of W. B., verified the same day, and the
filing motion papers and the effect of
Adapted from the affidavit in Curtis
57 Adapted from the same case as