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20. Bringing in new parties.] — The equitable power of the court to bring in third persons and make them parties, when a complete determination of the controversy before it cannot be had without their presence, applies to proceedings by petition ;4 and upon the same principle the power of amendment in the striking out of parties applies.
21. Answer. ]— There are no settled rules as to the form of the proceedings on the part of those brought in by original petition, but the principles applied are the same which regulate the substance of demurrers and answers in actions of an equitable nature; and in recent practice these principles have been extended eren to petitions in special statutory proceedings.
In original petitions addressed to the general equitable power of a court of general jurisdiction, a demurrer, answer, or motion to dismiss for want of jurisdiction should be entertained upon the same principles as in the case of an action, and even with more freedom. In an answer, a denial of knowledge or information, sufficient to form a belief, as to a fact alleged in the petition, ought to be regarded as putting the fact in issue. Indeed an answer submitting the rights of the answering party to the court, without taking issue in any form, is not, according to common practice, deemed to relieve the petitioner from the neces
application as constituting so many several petitions and to permit the form to be made to correspond. Many such petitions have been presented, and gone through the courts, resulting in the end in several and separate orders for the relief of each petitioner from his own assessment. (Matter of Eager, 46 N. Y. 100.) The joinder in such cases is at the most but an irregularity which might be waived or cured. It is difficult in any view of the subject to see how the original petition, whatever may have been its defects, did not constitute a pending proceeding; and that being so, and the irregularity corrected by an order of amendment from which no appeal has ever been taken, it seems to us quite obvious that the present petition should be deemed a continuation of the original proceeding, at least, in respect to the question of the effect of payment.” Matter of Mehrbach, 97 N. Y. 601, rev'g 33 Hun, 136.
4 So held, applying N. Y. Code Civ. Pro., § 452; Matter of Columbian Ins. Co., 30 Hun, 342.
5 See, for instance, Matter of N. Y., Lake Erie & W. R. R. Co., 99 N. Y. 12, 16 (proceedings in eminent domain). In that case the court, without passing on the question whether the general rule of pleading that a denial of knowledge or information sufficient to form a belief applies to an answering affidavit in such proceedings, held that if the affidavit was a mere affidavit, such an allegation was not a denial. If it was an answer, it could not avail as a denial in this case, because the fact sought to be put in issue was the existence of a corporation which, under the Code, cannot be denied except by a positive allegation that the company is not a corporation,
sity of giving some evidence in support of his petition, if required at the hearing. An amendment of the answer, or return, if necessary in such a case, should be freely allowed.
Proceedings of such a character are not, like actions, founded on strict legal right, but are the resort to a summary method of invoking the equitable directions of the court, and the court is not bound to give judgment on the pleadings, or by default, for it may leave even a party who has a good case to his action.
In special statutory petitions, however, stricter practice may reasonably be insisted upon.
22. The hearing.]— The conclusiveness of the litigation may depend, in cases not touched by any statute, on whether the final order is made on default or without opportunity of a hearing before the court or referee. It is, therefore, the better course, wherever a conclusive order or decree is desired, and there is no statute securing that, to offer evidence on the return of the petition or to take a reference, and in the final order to recite the fact that evidence was taken.
It may be that under the N. Y. rule, allowing judgment to be entered in a certain class of petitions, the final order would necessarily have the effect of a judgment.
23. Order or decree. - The decision of an original petition is embodied in the order which, although it is not a judgment within the meaning of general provisions of the statute relative to judgments, particularly with respect to appeal and new trial, it being viewed for those purposes rather as an order, is accorded much the same effect and respect as a judgment, if it be thus taken not by default nor on the petitioner's allegations merely, but after proofs taken and full opportunity for hearing.
Unless full proofs are taken or opportunity therefor given by a hearing before a referee (or it may be by issues framed for a jury), and the order thereon is one which might have been re viewed by appeal, it is not deemed a res judicata in the sense in which a judgment is.8
6 N. Y. Gen. Rule No. 27.
8 Dwight r. St. John, 25 N. Y. 203. But in any case the motion might be renewed on fresh papers. Riggs 1. Pursell, 74 id. 370, 379.
See on this distinction, p. 149 of this volume.
24, Enforcing.]— The court have inherent power to enforce the order; if it be for specific relief, by proceedings for contempt, and if it be for the payment of money, in the same way (though this is in some cases restrained by statute) or by execution.
This power is expressly recognized by the New York General
9 See paragraph 89, p. 252 of this volume.
In Austin v. Rawdon, 42 N. Y. 155, it was held that in a statutory proceeding to determine controversies between corporation receivers and debtors or creditors, when the court was authorized to refer the controversy by a statute declaring that the referee “ should have the same powers and be subject to the like duties and obligations” as referees appointed by the courts in personal actions, their report to be filed in the same office, and to be “ conclusive on the rights of the parties if not set aside by the courts," this being at the time when the practice allowed the entry of judgment or a referee's report in action as of course: Held, that an order of judgment was proper. Lott, J., said: “Although there is no express power given to the court to entertain jurisdiction in the matter, it is necessarily implied. It was the duty of the referees to report to the court, and the fact that it was to conclude the rights of the parties, if not set aside by the court, concedes the existence of the power to set it aside and to hear an application for such a purpose, and, in the absence of any statutory regulation on the subject, the rules and practice of the court regulating like applications on references in actions must apply, to give effect to the provision. * * * The object of the statute in authorizing such a determination was to enable a speedy settlement and disposition of the effects and property of a dissolved corporation to be made. The construction above given to it is consistent with its provisions, and will carry out that object. If, on the other hand, the report is only to be considered as an adjustment of the amount due, and the collection of it could only be enforced by a judgment in a suit founded thereon subsequently commenced, it would tend to delay such settlement and, to a great extent, render a reference useless."
In Greenfield v. Mayor, 28 Hun, 320 (proceeding for substitution of attorneys and to compel delivery of papers), the court say: “In respect to the question whether the court had power to order the bank to pay over the money and to direct execution to issue as upon a judgment therefor, we think, under the circumstances, the power existed. The proceedings were commenced by petition filed on behalf of the bank. It was addressed to the equitable power of the court seeking to compel an attorney to surrender the possession of papers, etc., in his hands, and upon which he had a lien for his compensation, and distinctly offering to pay to said attorney all sums and amounts to which he might in any proceeedings be adjudged to be entitled for his professional services and disbursements. It was accompanied by a bond given for the purpose of obtaining an immediate delivery, without the delay incidentally necessary to ascertain such amount. The court directed the surrender of all the papers upon which the lien rested, and directed a reference to hear and determine the question of compensation, and a trial, formal in its character, was had before such referee. On the coming in of the report and its confirmation, the court undoubtedly had power to compel a compliance with its own order, by directing the payment of the money to the attorney which had been ascertained to be his due, and might enforce that order, under General Rule 27 of the court, by the entry of a judgment and the issuing of an execution as directed by the order appealed from, or it might have proceeded to enforce the order by proceedings in the nature of contempt. It certainly is not prejudicial to the bank that the court adopted the milder form, and it was not necessary, we think, to require the attorney to proceed with the action upon the bond, although that course might doubtless have been taken.”
Rule," which provides that “Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed as other judgments.”
25. Motion to vacate.]— The court is not deprived of its power over the proceeding by the fact that it has granted a final order. It has implied power to entertain a motion to vacate, although such motions are subject, of course, to the restrictions stated in the article on “Motions,” 11 and ought also to be subject by analogy, if not by force of the statute, to the principles pre scribed in reference to motions to vacate judgments."
FORMS. PROCEEDINGS BY PETITION IN A 196. Notice of motion for final order CAUSE ALREADY BROUGHT.
on original petition. 182. Petition in a cause pending. 197. Notice of motion by joint pe183. Title and caption of a prelim
titioner for leave to sever. inary petition to the court. 198. Order allowing joint petition184. - - to a judge.
ers to sever. 185. Affidavit by attorney of facts 199. Petition by third person to be as to previous application.
allowed to intervene in a pend186. Order to show cause on a pe
ing proceeding. tition in an action.
200. Order granting leave to inter187. Notice of motion on petition in
vene in pending proceeding. a cause, used instead of order 201. Notice of appearance on origto show cause.
inal petition. 188. The same; a shorter form.
202. -- by petitioner who is af189. Affidavit on motion for amend.
fected in two capacities" alment of prayer of previous
though petitioning only in one. petition.
203. Answer to original petition. 190. Order denying motion made on 204. The same; another form, where petition without prejudice to
the proceedings are merely to an action, or with leave to
adjudicate the effect of ad sue.
mitted facts. PROCEEDINGS BY ORIGINAL PETITION.
205. Answer (and appearance) sub191. Original petition.
mitting rights to the court.
206. Order denying original petition 192, Prayer of a petition of an offi
without prejudice to an accer of court for instructions. 193. Verification of petition.
tion, or with leave to sue. 194.
207. Order referring original pe- by officer.
tition, directing stating of ac195. Order to show cause on orig. inal petition, with direction
count, and requiring notice
upon stranger, and permitting for publication.
him to intervene at his option.
10 No. 27.
208. Notice of settlement of order or
decree upon determination of
original petition. 209. Affidavit to disbursements in
proceedings on original pe
tition. 210. - by counsel for trustees to his
services, and their value.
211. Consent of attorneys as to al
lowances. 212. Final order or decree on orig.
inal petition. 213. Request to clerk to docket or
der as a judgment. 214. Notice of motion to vacate or
der made on original petition.
FORMS Nos. 182–190.- PROCEEDINGS BY PETITION IN
FORM No. 182.
Petition in a case pending.13 [Title of. court and cause.]
To the [or, to Hon. J. K., one of the justices of the] Supreme Court of the State of New York: [giving full official designation].
The petition of A. B. [or, of the — name of corporation — by A. B., its president] respectfully shows:
I. That your petitioner is [state relation to cause]. [Continue with allegations as in an affidavit ;14 including reason for short notice, if order to show cause in less than eight days is asked ;15, and allegation that no previous application has been made.18]
[Prayer for relief according to the case."?] [Date.]
[Signature.] [Verification18 as in Form No. 193 (below).] 13 See paragraphs 1-7, pp. 306–312 1 7 See paragraph 5, p. 311 (above).
(above). 14 See paragraphs 8–10, pp. 312, 18 In Anon., Hopkins Ch. 101, a 314 (above).
party presented his own petition, as 150r annex separate affidavit solicitor in a cause, relating to thereto. See paragraph 108, p. 129 facts which had been stated in other of this volume. See clause VIII. of proceedings in the cause; but the Form No. 52, pp. 169-171 of this vol petition was not sworn to. The ume for illustrations.
court thought that there should be 16 Or state in separate affidavit. no exception to the rule, that all pe. See paragraph 84, p. 116, of this vol. titions grounded on facts not immeume; see also Form No. 185 (be. diately before the court are to be lon), and clause IX of Form No. verified by oath. 52, at p. 171, for illustrations.