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FORM No. 292.
Notice to quit, given by receiver. [Title of court and cause.]
I, the undersigned A. B., as receiver in the above entitled cause, of the property of M. V., hereby give you notice to quit and deliver up to me, on the day of , 19, 56 the [designating premises], which you now hold as tenant of the said M. N. [Date.]
[Signature of], Receiver. To [name of tenant, or, if uncertain, address merely to occupant).
FORM No. 293. Boud of guardian of infant legatee to repay in case legatee die without lawful
issue.57 [Penal clause as in Form No. 35, p. 32.] Now the condition of this obligation is such that if A. B., his executors, administrators, or successors, shall well and truly pay, or cause to be paid, unto the above named executors, the survivors or survivor of them, or to their successor or successors, the executors, administrators, or assigns of either, the just and full sum of all moneys which the said A. B., as guardian of M. N., one of the legatees of deceased, shall, from time to time, receive of said executors, their successors or survivors, or either of them as principal, in
Vroom (N. J.) 128. Thus, where the tenancy from month to month commenced on the first day of the month, a notice to quit, if intended for Maj, should be served on or before the first of April. Anderson v. Prindle, 23 Wend. 616.
See, on this subject, note 49, on
Where a tenant held over, after the termination of a lease, for a year, the following notice to quit (describing the premises), “ which you have held under me,” held not to contain an admission that there was a tenancy for such year. Adams v. Decker, 6 Halst. (N. J.) 84.
A notice to quit, sufficient in all . respects except that it stated a wrong
reason (non-payment of rent) for ter minating the tenancy, held to be effectual. Creighton 0. Sanders, 89 Ill. 543.
38 Where the commencement of the tenancy is doubtful, add "provided
your tenancy originally commenced at that time of the year; or, otherwise, that you quit or deliver up, at the end of the year of your tenancy, which will expire next after the end of half a year from the time of your being served with this notice.”
This is substantially the form given in Smith on Receivers, Appendix.
57 The bond to an executor, etc., before suing for a legacy or distributive share in ordinary cases (formerly required by 2 N. Y. R. S., 114. $$ 9, 10), is dispensed with by N. Y. Code Civ. Pro., $ 1827, which substitutes an undertaking to be given before execution issues.
The form here given is adapted from Tyson v. Blake, 22 N. Y. 558, where the court held that as by the terms of the will three grandsons were entitled to the fund if the legatee first named died without issue. the executors had the right to withhold the principal of such legatee's share of the
case the said M. N. shall die without lawful issue, together with interest from the time of such death without lawful issue (the amount of which moneys appears by the receipts of the said A. B., indorsed on this instrument], then this obligation shall be void, otherwise of full force and effect.
[Add signatures, seals, acknowledgment, affidavits of sufficiency of sureties as in Form No. 35 or 36, p. 34.]
net proceeds of the estate, unless adequate security was given or tenderea to account for the same in the event of her dying without lawful issue, to gether with interest thereon from the time of her death. Adding, “ The
bond was precisely such a one as the executors were entitled to require upon advancing to” her, “or her guardian, the principal of her legacy, or any part of it.”
ARTICLE VI. EXAMINATION OF ANTICIPATED PARTY OR WITNESS, BEFORE
order for examination, and 1. Power of the court.
to suppress depositions at. 2. The practice.
ready taken. 3. Application to perpetuate testi (297) Order vacating order for er mony relating to the title to
amination, and suppressing real property.
depositions taken there Forms.
under. (294) Order for perpetuation of tes. (298) Petition upon application to timony of a witness in an
perpetuate testimony It expected action.
garding real property. (295) ANidavit upon application to (299) Order thereon for notice to obtain examination of a
persons adversely interwitness in an expected ac
(300) Order for taking depositions. (296) Notice of motion to vacale
1. Power of court.]— Courts of equity have inherent power to entertain bills for the perpetuation of testimony as well as to com. pel discovery.58 The codes of procedure substitute an application by motion, to be made in the action in which the evidence is wanted, or in anticipation of such an action ; 59 but this code pro ceeding is not entertained by the United States courts. The application before action commenced, under the New York Statute, is limited to the perpetuation of testimony, and cannot be invoked to enable the expected plaintiff to frame his complaint, or to find out whether he has a cause of action, or the proper party defendant; the rule is the same whether the person sought to be examined is the expected adverse party, or merely a witness knoring some material fact. 61
The perpetuation of testimony of witnesses, in anticipation of some future litigation (not unfrequently needed in England where land titles are rarely registered), is less frequently needed here. Applications for the examination of an intended defendant are
58 X. Y. & Baltimore Coffee Co. r. N. Y. Coffee Co., 9 Fed. Rep. 578; 62 Ilow. Pr. 455 (bill to perpetuate testimony under U. S. R. S., $$ $66, 867, extending the chancery jurisdiction to the U. S. Circuit Courts).
69 Merch. Nat. Bank 0. Sheehan, 101 N. Y. 176.
61 Matter of Schlatterer, 105 Apr. Div. 115, 93 N. Y. Supp. 895: Matter of Ellet 1. Young, 95 Apr. Div. 417, 88 N. Y. Supp. 661; Matter of White 44 Ann. Div. 119. 60 N. Y. Supp. 702; Matter of Schoeller, 74 App. Div. 347, 77 N. Y. Supr. 614; Matter of Anthony, 42 App. Div. 66, 58 N. Y. Supp. 907: Long Island Bottlers' Union v. Bottling Brewers, 65 App. Div. 459, 72 N. Y. Supp. 976.
not encouraged; for the applicant should ordinarily be left to bring his action and proceed therein.62
2. The practice.]— Under N. Y. Code Civ. Pro., § 873, apply not to the court, but to a judge out of court. A judge of the Supreme Court, or a county judge, can make the order. It is not necessary to give notice unless the judge requires it. For the general practice upon these applications, see, in more detail, Vol. II, EXAMINATION BEFORE TRIAL.
3. Application to perpetuate testimony relating to the title to real property.] — A recent addition to the New York Code of Civil Procedure (L. 1901, chap. 303, adding $$ 1688a-1688i) confers power upon the Supreme Court to provide for the taking of the deposition of any person whenever necessary for the protection of the applicant's rights in specified real property. The practice upon the application is closely analogous to the practice under the more general provisions of $ 870 et seq.; differences that may advantageously be noted are, that the application under $ 1688a must be made upon petition (instead of affidavit), that it may be presented to a Supreme Court judge only, and that the depositions of the witnesses must be recorded in the office of the register of deeds (or county clerk where there is no register).
FORM No. 294. Order for perpetuation of testimony of a witness in expected action.63 New York SUPREME COURT. NEW YORK County.
In the Matter
of The Application of the T. Trad
ing Company, to perpetuate the testimony of [names of witnesses].64
It appearing to my satisfaction from the annexed affidavit of M. S. T., president of the above named company, verified on the stated in said affidavit, that the witnesses to be examined herein are to leave the State of New York, on the day of 19 , and will be out of the State at the time of the trial herein, that they are residents of the Kingdom of Norway, and that this application is made in good faith to preserve their testimony; it is
day of , 19, that an action will be brought as 62 See Merch. Nat. Bank v. Sheehan, 101 N. Y. 176.
63 This must be a judge's order un der Code Civ. Pro., $ 873. Heishon v. Knickerbocker, etc., Co., 77 N. Y. 278.
64 The application should not be
entitled in the action as expected to be brought. Matter of Bryan, 3 Abb. N. C. 289.
On motion of W. C. & II., attorneys for the petitioner,
ORDERED, that said [uitnesses] appear before the justice of this court holding Special Term, [Part II ] at the [County Court IIouse in the Borough of Manhattan, County of New York,] on the day of
, 19 , at ten-thirty o'clock in the fore noon of that day, to be examined as witnesses on behalf of the Tweedie Trading Company in the actions expected to be brought. 66
[Insert any desired limitations on scope of order.]
And special circumstances being shown in said affidavit making a shorter time of service necessary, it is hereby further
ORDERED, that a service of a copy of this order on the said witnesses,c8 and on the S. C. Company,69 [cxpected adversary] on or before the day of , 19 , together with a copy of the annexed affidavit, shall be sufficient. [Date.]
[Signature], Justice of the Supreme Court of
the State of New York.
time of service
of a copy of the wested adversary]
FORM No. 295. Affidavit upon application to obtain examination of witnesses in expected
action.70 [Title as in previous Form.] Venue.]
M. S. T., being duly storn, deposes and says: I am the president of the above named T. Trading Company. Said company is
65 Although the literal reading of the Code makes the order returnable only before the judge granting it, or a referee, the practise is as indicated in the Form, and is supported by Sweeney v. Sturgis, 24 Hun, 162.
66 A resident of the state cannot be required to attend in any county other than that in which he resides or has an office for the regular transaction of business in person. If not a resident, he cannot be required to attend in any other county than that in which he is served with a subpæna, unless otherwise directed by the order. Code Civ. Pro., & 886.
67 Applies only to case of an expected party. Code Civ. Pro., § 873.
68 The party must be personally served to bring him in contempt. Tebo v. Baker, 77 N. Y. 33.
No subpæna is necessary, Pake u. Proal, 2 Abb. N. C. 418, except, perhaps, in case of a non-resident witness. Code Civ. Pro., § 886, last clause.
69 Unless this service be made also on the expected adversary, the witness is not obliged to appear. Cowen v. Ferguson, 7 N. Y. St. Rep. 403, aff'g 18 Abb. N. C. 241.
70 Adapted from Matter of Tweedie Trading Co., 105 App. Div. 426, 94 N. Y. Supp. 167, 35 Civ. Pro. 6.