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FORM No. 211.
Consent of attorneys as to allowances.55 [Title of court and proceeding.] The whole estate distributed upon this accounting amounts to
, and taking into consideration the different interests represented, we submit that the following would be a fair and equitable apportionment of allowances herein:
M. N., representing A. B., the accounting trustee, $ ,
0. P., representing one-half the estate, [and so on). [Date.]
[Signature of attorneys.]
, and an ordent
FORM No. 212. Final order or decree on original petition,56 [Caption as in Form No. 315.]
The petition of A. B., in the above entitled matter, bearing date the day of , 19 , having been duly presented to this court on the day of , 19 , and an order having been thereupon duly made, directing [or, the parties named in said petition] to show cause at a special term of this court to be held at the County Court House, in the city of [ ] on the day of , 19 , why the prayer of the petitioner should not be granted; and the said order to show cause having been returned with proof of the due and complete service thereof, together with a copy of the petition on [names], they being all the parties interested in this proceeding and to whom the said order to show cause is directed by name; [where publica
be held at thion] to show directing
sonal interests. Where all the parties appear by counsel, it may be very well for them to agree to make a common burden of these expenses, and have them paid out of the com
55 Such a stipulation as this as to allowances binds the parties consent ing, but not one who did not appear on the reference nor unite in the consent. In Savage v. Sherman, 87 N. Y., 277, the court say: “ The trustees were entitled to be allowed their reasonable expenses for rendering and passing their accounts, but the counsel for the other parties, who at. tended to protect the interests of such parties in the accounting, should look to their respective clients for their compensation, and we are not aware of any rule or principle whereby any of these parties are entitled to call upon the other to pay counsel fees which they incur on their own behalf for the protection of their per
for what they thus contribute toward the expenses of the others by being relieved in part of those they have incurred for themselves. But when, as in the present case, one of the parties has not litigated the accounts, and receives no allowance for expenses or services of counsel, he should not be compelled to contribute to the counsel fees of those who chose to litigate.”
56 See paragraphs 22, 23, p. 318.
(dabaving interpose and the said co.
tion was had] and on reading and filing due proof by the affidavit of , verified the day of , 19 , that notice of the order herein, requiring all persons interested (in said
to show cause before said referee why said should not be
], had been duly published for the time and in the manner required by law and by order of this court; and upon the return day of said order to show cause the said petitioner, A. B., having appeared herein by his attorney, M. N.; C. D., as executor of the last will and testament of A. D., deceased, having appeared by A. M., his attorney, and E. F., having appeared in person, and G. H., having appeared by O. P., his attorney, (and no one else having appeared in this proceeding in person or by attorney, and the said C. D., as executor as aforesaid, having interposed to said petition an answer dated the day of , 19 ,[requesting proof of] the allegations of said petition, and no one else having answered in any form.
[Recital of reference] And the matter having duly come on to be heard upon said return day, and an order of this court, bearing date the day of , 19 , having been duly made and entered in this proceeding, whereby it was referred to W. H., counselor-at-law, to take proof of the material facts alleged in the petition (and to make, take, and state the accounts and proceedings of said A. B., as such trustee, and to ascertain and report the amount of commissions due the petitioner], and to report upon all the matters so referred to him, and the said referee having been attended by the counsel for the several and respective parties to this proceeding, and having proceeded to a hearing of the matters referred to him, and it appearing from the report of said referee that all the material facts alleged in said petition are true, and that said referee has taken and stated the accounts of the said trustee;
And the said referee's report, together with the testimony taken by him under the said order of reference, and the exhibits haring been duly filed in the office of the clerk of. , on the
day of . , 19 [with the account of the proceedings of said trustee and the vouchers thereto), and upon the coming in of said referee's report, the matter having been brought on for further hearing before this court upon a motion for confirmation of said report and for a final decree herein, upon due notice to all the parties appearing herein.
Now, upon reading and filing the notice of said motion dated the day of
, 19 , and upon the papers and proceedings hereinbefore recited, and after hearing M. N., of coun
sel for the said petitioner, in support of the motion for confirmation of said report, and A. M., of counsel for C. D., as aforesaid, in support of the claim set up in his said answer, and due deliberation having been had, and this court having duly rendered its decision in writing herein in favor of the said petitioner and of the claim set forth in the answer of said C. D. ;
Now, therefore, upon said decision and upon all the papers filed and proceedings heretofore had herein:
It is hereby ORDERED, ADJUDGED, and DECREED, that the said referee's report, filed herein on the day of , 19 , be and the same is hereby ratified and confirmed [and the exceptions thereto are hereby overruled — and so on, stating the relief - for instance, thus:]
That A. B. [the petitioner] recover of Y. Z. the sum of dollars [found by the referee], together with dollars, referee's fees (agreed upon), amounting together to dollars, and interest thereon from the day of , 19 , to this date, amounting altogether to dollars.
[Directions to docket] It is further ORDERED, and the clerk of this court is hereby directed to enroll the papers herein and docket a judgment, in favor of said A. B. against said Y. Z., for said sum of
[and that said A. B. have execution against Y. Z. therefor57].
[Costs. And that, pursuant to $ 3240 of the Code of Civil Procedure, costs of this proceeding be and are hereby awarded to the petitioners, to be taxed by the clerk at the same rates allowed for similar services in an action, and to be paid by
,or, out of the fund.] [Leave to apply for further directions] And it is further ORDERED, that either party hereto may, at the foot of this order, apply to the court, if so advised, concerning any matter in or relating to the controversy herein [not disposed of hereby].
FORM No. 213.
[or, of the court] will please docket the within [or, annexed, or, foregoing] final
That, pursiroceeding the clerk and to
57 Not desirable where disobedience might otherwise be punished as a contempt. 58 See N. Y. Gen. Rules No. 27.
Not necessary when the final order contains an absolute direction to docket, and it is brought to the clerk's notice.
order, as a judgment, in the sum of dollars, against Y. 2. therein named [or, where there are several, may say — against the persons below named for the sums set opposite their respective names — giving list below). [Date.]
[Signature and address of],
FORM No. 214. Notice of motion to vacate order made on original petition,50 [Title of court and proceeding.]
Please take notice that upon the petition of C. C. D. and A. P. P., as trustees of the P. M. Co., and the schedules thereto annexed, dated and sworn to in the above entitled matter, on the day of , 19, and upon the order made on reading and filing the said petition, at a Special Term of this court, dated and entered on the day of upon the annexed affidavit of P. W., verified the day of
,19 , a motion will be made at a Special Term of this court, to be held at the [court house] in the [city of
] on the day of , 19, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order vacating and setting aside the said order, dated
, 19, on the ground of want of jurisdiction of the court to make the same, and on the ground that [stating grounds of irregularity], and for such other or further relief as may be just, with the costs of this motion. [Date.]
Attorney for To [address of],
Attorney for petitioner
[and other parties.]
side the said ant of juristating grou
59 See paragraph 25, p. 320 (above).
PUBLICATION. [Such of the rules applicable to the advertising of legal notices, as are common to different kinds of proceedings, are here stated. As the principles and policy of the law are substantially the same in respect to advertising publication of notice of ministerial and administrative proceedings, decisions arising in such proceedings have been freely annotated (indicating, however, their nature) whenever it has seemed that they should afford a useful guide to regularity.) I. NATURE. LENGTH, AND PERIODICITY. 18. Selection of language. 1. Statutory or judicial authority 19. — place of publication. necessary.
20. — Sunday paper. 2. Materiality of the object of the 21. State paper.
notice. 3. Notice relating to future proceed
III. ORDER TO PUBLISH. ings.— Direction by weekly 22. The order for publication. publication.
23. The direction. 4. Computing number of days. 5. Additional days.
IV. THE PUBLICATION. 6. Application to various proceed. 24. Contents of notice published. ings.
25. Changes or amendments pending 7. Immediately.
26. - edition. ceedings.
27. — supplement. 9. Premature publication. 10. Month.
V. PROOF OF PUBLICATION. 11. Successive weeks or months im 28. Statutory proof. plied.
29. Who may make affidavit. 12. Weekly publishing implied rather 30. -certificate. than daily.
31. Contents of affidavit or certifi. 13. No gaps allowed.
cate. 14. Variant days.
32. — form. 15. Direction to printer.,
33. Amending proof of publication. 16. Two papers.
34. Collateral attack.
(215) Affidavit of publication; com17. Selection of paper.
1. NATURE, LENGTH, AND PERIODICITY. 1. Statutory or judicial authority necessary.]— Notice of legal proceedings, given by advertisement or publication, is ineffectual unless sanctioned by statute or by the court.
And it is an universally acknowledged principle that the mode prescribed by such a statute or direction of the court must in all cases be substantially observed, and, if jurisdiction depends upon the notice, must be strictly observed.80
60 Where the order made required, by clerical mistake, a longer advertise. ment than the statute required, held, that the decree was not irregular if the advertisement complied with the statute, although it did not include the