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FORM No. 271. Affidavit of attorney to his authority in Justice's Court.74 [Title of Court and Cause.] [Venue.]
A. B., being duly sworn, says that he is attorney for C. D., the above named plaintiff, and has authority to appear as his attorney in this action. [Jurat.]
[Signature.] FORM No. 272. Request to commence an action to recover real property.75 I hereby request [or, if the suit has been already commenced, hereby recognize the authority of] C. D., attorney-at-law, of
, as my attorney, to commence an action in the courts of the State of New York, in my name, to recover possession of [here designate real property in question], with full power to prosecute the same. [Date].
[Signature.] FORM No. 273.
Affidavit by attorney thereto. [Title of court and cause.] [Venue.]
C. D., of , attorney-at-law, being duly sworn, says that he has written authority from A. B., the plaintiff in this action, to commence such action, of which authority the above is a true copy [or, which authority is contained in a letter from the plaintiff, an extract from which is hereto annexed]; that the said writing was duly signed and delivered [or, sent by mail] to this deponent by the plaintiff [or, by M. N., an agent of the plaintiff, duly authorized thereto, as appears by a letter of the plaintiff to said M. N., also hereto annexed.76 [Jurat.]
74 Required by N. Y. Code Civ. Pro., $ 2890. See note to preceding forin.
There is no presumption of the at torney's authority in such courts. Sperry v. Reynolds, 65 N. Y. 179.
The statutory requirement is waived by a failure to object that authority is not shown. Rickey v. Christie, 40 Hun, 278.
75 The defendant may require the production of the attorney's authority, and stay proceedings meanwhile, N. Y. Code Civ. Pro., 88 1512-1514; Howard v. Howard, 11 How. Pr. 80.
The defendant's application will be dismissed with costs if it appears thau he was served with the attorney's affidavit of his authority as above, The form of the writing is not material. Grignon v. Schmitz, 18 Wis. 620.
V erification of the complaint by the plaintiff is sufficient evidence of the attornoy's authority to satisfy the Code requirement. Graham 0. Andrus, 11 Misc. 649, 32 N. Y. Supp. 795.
76 A mere general agent for taking possession and managing land is not
FORM No. 274.
Notice of the same.77 [Title of court and cause.]
To Y. Z., the defendant above-named.
Please take notice that the within is an affidavit of the plaintiff's attorney herein, showing his authority to bring this action. [Date.]
[Signature.] Attorney for plaintiff.
empowered by such agency to give the attorney authority to sue. Howard v. Howard, 11 How. Pr. 80.
But under Wis. statute, R. S., chap. 141, § 6, written authority to the plaintiff's agent is not necessary to
empower such agent to give the attorney written authority to sue.
77 It is well to serve this voluntarily, with the summons, if it is supposed that defendant might seek delay by moving for it.
DESIGNATION OF PERSON TO BE SERVED WITH SUMMONS.
(275) Designation of person on
whom summons, or process
special proceeding, may be
served. (276) Consent of person designated.
FORM No. 275. Designation of person on whom summons, or process for commencement of a
special proceeding, may be served.78 I, A. B., a resident of the State of New York, at No. in street, in the town of
, in the county of , therein, being of full age, and by occupation a [merchant], hereby, pursuant to § 430 of the Code of Civil Procedure of said State, designate C. D., by occupation an attorney and counselor at law, and a resident at No. , street, in the town of , and county of
in said State, as a person upon whom to serve, with the like effect as if it were served personally upon me, a summons, or any process or other paper for the commencement of a civil special proceeding against me, in any court or before any officer, during the following period, to wit, on and after the day of
, 19, and until the day of
, 19, or the sooner revocation hereof."9 [Date.]
[Signature.] [Acknowledgment as in Form No. 1, p. 2, of this volume.] [File, with the consent of the person designated — see next Form — in the office of the clerk of the county where the person making the designation resides.] 80
78 Under N. Y. Code Civ. Pro., 430.
79 If no period is specified the ap pointment lasts for three years from filing, or the sooner death or legal in competency of either party.
It is not revoked by the presence in the State of the person making the designation. Code Civ. Pro., § 430, as amended in 1899.
80 Such a designation is not valid until, with the consent of the person designated, it has been filed in the office of the clerk of the county where the person making the designation resides. Lyster v. Pearson, 7 Mise. 98, 27 N. Y. Supp. 399.
FORM No. 276.
Consent of person designated. I, C. D., a resident of , and an attorney and counselor at law — as stated in the description] and above [or, within] designated as the person upon whom service may be made for A. B., therein named, under § 430 of the Code of Civil Procedure, hereby consent to the said designation. [Date.]
[Signature.] [Acknowledgment as in Form No. 1, p. 2, of this volume.] [File with designation.]
DEMANDS, NOTICES AND SECURITIES BEFORE Suit. FORMS.
NOTICE OF INJURY UNDER N. Y. Ex(277) Affidavit to claim presented to
PLOYERS' LIABILITY LAW. executors or administrators. 1. When notice required. (278) Demand for dower.
2. Construction of notice.
NOTICE OF CLAIM, TO MUNICIPAL COR- FORM.
PORATIONS, AND OTHER PUBLIC AU (285) Notice to emplover under THORITIES.
N. Y. Employers' Liability 1. Character of notice.
Law. 2. Form of notice. 3. Definiteness and accuracy required. CERTIFICATE OF AUTHORITY OF FOREIGN 4. Notice of intention to sue.
CORPORATIONS. 5. Time for filing notice.
of demand made on prin(279) Notice to City of New York of
cipal. intention to sue for personal (287) – of judgment before suit on injuries.
undertaking on appeal. (280) Notice of claim against the (288) - by surety requiring credCity of New York.
itor to sue principal. (281) Notice to village of claim for (289) Notice to quit, for non-paydamages for personal injury
ment of rent, before ejector injury to property.
ment. (282) Specifying defeet in sidewalk. (290) - --, to tenant at will or (283) Notice of injury to person or
by sufferance. property given to city of (291) - -, where there is an second class.
agreed tenancy from year to (284) Excuse for failure to serve
year, or month to month. notice within statutory pe (292) -----, given by receiver. riod.
(293) Bond of guardian of infant
legatee, to repay in case legatee die without lawful
FORM No. 277. Affidavit to claim presented to executor or administrator.81 [Venue.]
· A. B., being duly sworn, says, that the foregoing [or, annexed] claim $2 against the estate of M. N., late of
81 The necessity of formal presenta tion of a claim against a decedent (except so far as it arises from the practical consideration that the executor or administrator may other wise exhaust the assets in paying known claims), is purely statutory. In New York. the personal representative may require vouchers and alli davit, and neglect to present claim during the period of the six months'
notice so to do leaves the representative free to distribute. Code Civ. Pro., $ 2718. In New York and sereral other States, the effect of neglect is also to deprive the claimant or costs if he sues. N. Y. Code Civ. Pro., § 1836; Horton r. Brown, 29 Ilun, 654, and cases cited. In California and other States the effect is to bar the claim itself. The forms here given are adapted to the New