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order made on said order to show cause [or, notice), dated the
day of , 19 , entered in the clerk's office of county, on the day of , 19 , (and on motion of E. M., attorney for ]:
ORDERED, that the [defendant] show cause before this court, at a Special Term [Part 1] thereof to be held at the County Court House, in the [city of
], on the day of 19 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why the said order entered herein on the
day of ; 19 , should not be vacated and set aside, and for such other order as may be just, upon the ground that said order has not been entered or drawn as prescribed by the General Rules of Practice (and the papers upon which the same was made have not been duly filed within the period prescribed by said rules).
Service of a copy of this order, and of the papers on which it is granted, made on the attorney for the defendant, W. B., on or before the day of , 19 , shall be sufficient.
[Date, signature, etc., as in Form No. 108, p. 265 (above).]
Service, od, made on the
FORM No. 178. Order vacating order entered in wrong county;58 and proceedings thereon.
At a Special Term [etc., as in Form No. 94,
p. 255.] [Title of cause.]
On reading and filing the affidavit of E. M., verified the day of
19 [and other papers designated in the notice of motion, and also all papers submitted in opposition, see Form 101, p. 259, as to recitals], and after hearing Mr. J. A., of counsel for the , in support of the motion, and Mr. H. C., of counsel for
, in opposition — now, on motion of E. M. N., attorney for :
ORDERED — I. That the order herein, dated [briefly identifying it] be and the same hereby is vacated and set aside, and all proceedings had by virtue of said order are hereby canceled. II. That the clerks of county, and of the county of
, are hereby directed to restore the judgment record or records, and all proper entries of a judgment entered in the clerk's office in the county of
, on the day of 19 , and a transcript thereof filed in
county clerk's 58 See paragraph 62, p. 239 cate for entry in a wrong counts (above), as to where an order should may be made in the county where be entered, and that a motion to va- the order ought to have been entered. 59 On appeal the addition of such a clause as this last was required by the General Term. Curtis v. Greene, 28 Hun, 294. In general, one who has taken an irregular order cannot have its benefits saved to him upon terms, on the motion to set it aside; he must move anew. So held in Johnston v. Bloomer, 3 Edw. 328, granting a motion to set aside an order [referring exceptions to an answer) as irregular in being out of time. The court said: “That any relief from his own laches which he may wish to ask for, must be the
, 19 , and vacated by said order, or any order, and to cancel any and all writings made by them, or either of them, in obedience to said order of this court.
III. That the sheriff of county proceed as if said order of
, 19, had never been made, and deliver such deed or certificate as prescribed by law.
IV. That the defendant pay ten dollars costs of this motion.
V. It is further ordered, that the party on whose motion said order was made, have leave to renew the motion which resulted in the order hereby vacated, and to do so on the same or such further or other papers as he may be advised.69 [Ending as in Form No. 108, p. 265 (above).]
FORM No. 179. Order of judge on notice vacating his ex parte order.60 [Title of the cause.]
On motion of M. N., attorney for , and after hearing 0. P., attorney for
[or, and on proof of service of due notice of this motion, and no one appearing] in opposition:
ORDERED, that the order [of arrest] made by me in this action, on the day of , 19 , be and the same is hereby vacated and discharged. [Date.]
[Signature and initials of title of judge.]
FORM No. 180. Order vacating order made under misapprehension,61 and setting down mo
tion for rehearing,62 with leave to put in new affidavits. [Caption as in Form No. 94 or 96, pp. 255, 256, acccrding to
motion.] [After recital of papers, etc. :63] And it appearing that there was a misunderstanding between
subject of a distinct motion on his part.”
60 See Form No. 171, p. 298 (above), for a judge's ex parte order vacating his ex parte order, and see notes thereto. For a court order made on notice vacating a prior court order, see Form No. 175, p. 300 labore).
61 See notes on page 298 (above).
62 See paragraph 169, p. 158 (abore), as to when a rehearing may be allowed.
63 See Form No. 101, p. 259, for examples of recitals.
the different parties as to what was agreed upon in open court with regard to the motion (for allowances), which misunderstanding affected the provisions of the order hereinbefore mentioned:
ORDERED, that the order heretofore made in this action among other things settling the amount of allowances, dated on the day of , 19, and entered on the day of 19 , be and the same is hereby vacated, and that the original motion be and the same is hereby adjourned to and set down for hearing before a Special Term of this court, to be held at on the day of
, 19 , at a. M., with leave to all parties at that time to submit affidavits upon the merits of the motion.
[Ending as in Form No. 108, p. 265 (above).]
FORM No. 181. Execution against personal property on order requiring payment of costa
or other sum of money.64 The people of the State of New York to the sheriff of the county of
greeting: WHEREAS, an order was duly made on the day of one thousand nine hundred and
in the court, in an action between [naming the plaintiffs], plaintiffs, and [naming the defendants), defendants, [among other things ] directing the said [naming debtor in the order] to pay the said [naming creditor in the order] the sum of (ten dollars] as appears to us by the said order duly filed and entered in the office of the clerk of the county of or, of the
court); And, whereas, the said sum of [ten dollars) with interest from the day of
19, is now actually due thereon: Therefore, we command you, that you satisfy the said order out of the personal property of the said [naming debtor, and if several, severally or jointly and severally liable, add, or either of them], in your county, in whose hands soever the same may be, and return this execution within sixty days after its receipt by you, to the clerk of the county of [or, of the court — specifying the clerk with whom the order was entered:]
WITNESS, Hon. [here name any justice of the Supreme Court, if the execution is issued from that court, adding:] justice of our said court (or, if from another court, name any judge thereof, adding:- judge of our said court], at the day of , 19.
64 See paragraph 89, p. 252 (above), as to when an execution upon an order issues as of course, and when it is necessary or better practice to apply for leave to issue
it. See, also, paragraphs 86–88, pp. 250, 251 (above), as to the various modes of enforcing an order generally.
[Signature and office address of],&
Attorney for [creditor in the order.]
65 The signature of the County Clerk upon executions issued upon judgments recovered in the Supreme
or County Court is unnecessary, and may be treated as surplusage. See Ryan v. Parr, 16 N. Y. Supp. 829.
10. Positive, or on information, etc. 1. What is a petition.
11. Signature. 2. Two classes of petitions.
13. -- by several. II. PETITIONS AS MOTIONS IN THE 14. Address. CAUSE,
15. Filing. 3. Motions on petition distinguished 16. Order to show cause. from other motions.
17. Amending petition, 4. Rules applicable.
18. Second use. 5. Prayer.
19. Joining and severing. 6. Signature.
20. Bringing in new parties. 7. Notice of motion.
22. The hearing. III. ORIGINAL PETITIONS.
23. Order or decree. 8. Description of petitioner.
24. Enforcing. 9. Allegations.
25. Motion to vacate.
[For list of Forms see p. 320 (below).]
1. IN GENERAL. 1. What is a petition.]— In equity practice, applications to the court for relief, which might be had without filing a bill of complaint and issuing a subpoena to compel appearance, were commenced by petition addressed to the court and praying the desired relief. This being served, either with notice of the time and place when it would be presented to the court, or with an order to show ceuse fixing time and place, brought the matter regularly before the court without such service of process as is necessary to give jurisdiction of an ordinary suit. The word “petition,” hoirever, has been adopted in many of the practice statutes of the American States to designate the first pleading on the part of the plaintiff in a civil action, corresponding to the declaration at common law, the bill in equity, and the complaint under the New York and some other Codes of Procedure.
Throughout this work the word is used exclusively in the former sense, and the first pleading on the part of the plaintiff is uniformly called the complaint.
A petition in the appropriate sense of the word, then, is a written address to the tribunal, stating facts presented as entitling the petitioner to relief, or to some direction or order, and asking therefor. 66
66 See Shaft v. Phonix, etc., Ing. Co., 67 N. Y. 547; Fenstermacher v. State, 19 Oreg. 504, 25 Pac. Rep. 142; State Bank v. Plainfield, etc., Bank, 34 N. J. Eq. 450.