before a Special Term of this court, to be held at the court house,

as counsel can be heard, why the order of publication herein dated 19 should not be set aside on the

76

the day of papers on which the same was granted on the ground of with such other and further relief as may be just, and with costs of this motion.

the

Service of this order, and the annexed affidavit, on or before 19 shall be sufficient.

day of
[Authentication as in Form No. 108, p. 265.]

FORM No. 448.

Order vacating order for service by publication.

At a Special Term, [etc., see p. 255.]

[Title.]

A motion having been made to vacate the order herein for the service of summons in this action by publication upon the defendant, M. A. G., [individually and as trustee for L. A. G.], and upon the defendant L. A. G., which said order bears date the 19 and was filed in the office of the

day of

Clerk of the Court of New York on the

day of

19 ; and said motion having regularly come on to be heard; Now, upon reading the said order and the papers upon which the same was granted, viz., the certificate of the sheriff of the County of New York, dated 19 the affidavits of and the verified complaint; and upon reading and filing the notice of this motion, dated 19 with admission of the service thereof upon plaintiff's attorneys; and after hearing C. C. A. for the motion, and W. E. W., Esq., opposed, on motion of A. & C., appearing specially for the defendants G., it is

Ordered, that the said motion be and the same is hereby granted, and the said order for the service of the summons herein upon the defendant, M. A. G., [individually and as trustee for L. A. G.1, and upon the defendant L. A. G., be and the same is hereby vacated, with ten dollars costs.

76 If the affidavit failed to give jurisdiction, or the order does not comply with the statutory require ments, it is not essential that the motion specify the objections. See

note 72 to previous Form 446. As to what insufficiency of affidavit prevents acquiring jurisdiction, see discussion and cases cited in article on SERVICE BY PUBLICATION.

FORM No. 449.

Affidavit to non-publication of summons.77

[Title of court and cause.]

[Venue.]

D. S. O., being duly sworn, says:

I. He is the principal clerk in the office of the Daily Register, the legal official journal of the city and county of New York.

II. That among his other duties it is his duty to receive and insert all the advertisements in said Register, among which arɛ summonses for publication.

III. That he has examined the books and files of said Daily Register, and knows of his own knowledge that no publication of any summons in above entitled action, or against any of the defendants in said above entitled action in the said action has appeared or been published in said Daily Register, from

19, to

[Jurat.]

19 .

FORM No. 450.

[Signature.]

Special appearance with notice of motion to set aside proceedings. [Title of court and cause.]

Please take notice, that I appear in this action for [naming the person on whose behalf the motion is made], for the purpose of this motion only, and no other purpose; and that upon the summons and proceedings herein, and upon the annexed affidavit, I shall move the court at a Special Term, to be held at the court house [or, at the city hall], 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 that

77 Where publication is ordered, the statute must be strictly pursued, and publication made in a different paper than that directed by the court, is void, without reference to the question whether defendant was prejudiced. Brisbane t. Peabody, 3 How. Pr. 109.

But publication in the paper intended, although the name differs somewhat from that in the order, is sufficient. Waters v. Waters, 7 Misc. 519, 27 N. Y. Supp. 1004.

An order for publication is satisfied

by the publication of a copy substantially correct. An omission of unnecessary words cannot vitiate. Van Wyck v. Hardy, 4 Abb. Ct. App. Dec. 496; Brennen r. North, 7 App. Div. 79, 39 N. Y. Supp. 975. Nor will an error in the plaintiff's name. Farrington v. Muchmore, 52 App. Div. 247, 65 N. Y. Supp. 432. Nor error in date of summons as published, showing a date later than the order. George v. Fitzpatrick, 41 N. Y. Supp. 211, 25 Civ. Pro. Rep. 383.

the service of the summons herein be vacated and set aside, and that this action be dismissed with costs on the ground [briefly indicating it, and, if any irregularity is relied upon, specifying it distinctly], and for the costs of this motion.

[Date.]

[Address], To

[Signature of], Attorney for Y. Z., for the purpose of this motion only.

Plaintiff's attorney.

FORM No. 451.

Order to show cause why summons (or its service) should not be set aside, with extension of time and stay.78

[Title of court and cause.]

19 "

On the summons in this action and the annexed affidavit of Z. T., verified the day of " ORDERED, that the plaintiff, or his attorneys, show cause, before this court, at a Special Term thereof, to be held at the court house in the city of

19

79 and county of

at

o'clock

M.,

on the

day of or as soon thereafter as counsel can be heard, why the summons herein [or, why the service of the summons herein on the defendant Y. Z.] should not be set aside on the ground [stating it; and if irregularity is relied on, specify what].

ORDERED further, that service of this order and annexed affidays, on or before the day of

davit
shall be sufficient.

19

ORDERED further, that said defendant's time to appear and plead herein [and to make such motion relative to the complaint herein, as he may be advised] be and the same is hereby extended until [ten] days after the entry of an order upon this order to show cause.

ORDERED further, that all proceedings on the part of plaintiff herein be stayed not exceeding twenty [20] days, or until the further order of this court.

[Date.]

[Signature and initials of title of judge.]

78 If the motion is founded on irregularity of the summons, the notice or order to show cause must specify the irregularities complained of. Gen. Rule No. 37; O'Neill v. Bender, 13 Wkly. Dig. 47; Skinner v. Noyes, 7 Robt. 228. Stating as the ground that the papers were irregular, defective, and insufficient," is too vague. Hadley v. Gutridge, 58 Ind. 302. See, for

66

full discussion of the requirements of the New York rule, p. 122 of this volume.

79 As to the place for moving, see p. 101 of this volume. Hotchkiss v. Crocker, 15 How. Pr. 336; Johnston r. Bryan, 5 id. 355; Davison v. Powell, 13 id. 287; McCarthy v. McCarthy, 13 Hun, 579, 54 How. Pr. 97.

FORM No. 452.

Order on motion to set aside summons where appearance was special.

[Title of cause.]

At a Special Term [etc. see p. 255.]

On reading and filing the order to show cause, granted by Mr.

Justice J. K. and dated the

affidavit of Y. Z., verified the

day of

day of
day of

annexed, in support of this motion, [and the affidavit of A. B., verified the 19, in opposition], and after hearing, in support of the motion, T. Z., appearing for Y. Z., above-named, for the purpose of moving [to set aside the summons herein], and for no other purpose; and after hearing A. T., attorney for the plaintiff, in opposition thereto:

ORDERED, that the summons in this action, and all proceedings thereon, be and hereby are set aside, with ten dollars costs of this motion.

[Or] that the motion of said defendant to set aside the summons heretofore served on him in this action, on the ground of irregularity, be and the same hereby is granted, unless the plaintiff amends his summons, by [state amendment and mode of service, for instance thus] inserting therein the name of the county wherein plaintff desires the trial of this action to be had, and serves the amended summons on said defendant personally, within [five] days from the entry of this order; and leave to issue and serve such amended summons is hereby granted; and if plaintifi so amends, and serves said defendant, said motion will then be and hereby is, in that event, denied without costs.

And it is hereby further ordered, that the defendant herein have 20 days' time to appear generally after the service on him of the said amended summons, as hereinbefore ordered.

[Authentication as in Form No. 108, on p. 265.]

FORM No. 453.

Affidavit to move for leave to defend after service by publication.80

[Title of court and cause.]

[Venue.]

Y. Z., defendant above-named, being duly sworn, says:

I. That on the of the

day of

19, he saw in a copy

the summons in this action, before which time he had no knowledge or information of any such action or proceedings [or otherwise state in what mode the proceedings were first brought to his notice, and the facts relied on to negative laches in moving81].

82

[If there has been any irregularity in the proceedings, it may be useful though not necessary, to establish it. If plaintiff has been guilty of misrepresentation in securing the order, may also state, as thus:] That said publication was made pursuant to an order for service by publication, or without the State, granted the day of 19 , on affidavits alleging [here set forth the error in fact, for instance] that this defendant's residence was unknown, whereas, in fact, it was at and before the time of the making of said affidavits known to said plaintiff, as appears by the affidavit of M. N., hereto annexed. [Or thus] that this defendant was a non-resident of the State, and a resident of ; whereas in fact this defendant at day of

19 was a resident of

19 to the in this

that time, and from the day of State [here add details substantiating this allegation, such as tenancy or ownership of land, payment of taxes, personal presence, carrying on business, maintenance of family, and the like].

II. [If judgment is entered] That upon the order for service of summons by publication, and on affidavits of service pursuant

80 Under N. Y. Code Civ. Pro., § 445; not applicable to partition, if final judgment has been entered. Id., § 1557.

81 The object of such an allegation as to the time of first notice of the action, is to show that plaintiff has not been guilty of laches in making the present motion; and although the statute gives him a right to be let in upen sufficient cause shown, the sufliciency of the cause will often involve the question of diligence.

82 It is not necessary to show any irregularity in the plaintiff's proceedings, but if defendant discloses a sub

stantial defense the court must allow him to interpose his answer, upon terms. Marvin v. Brandy, 56 Hun, 242, 9 N. Y. Supp. 593, 18 Civ. Pro. 343 (holding that the cases under the Code of Procedure are inapplicable).

83 As to the requisite cogency of evidence, see Carleton v. Carleton, 85 N. Y. 313; Kennedy v. N. Y. Life Ins. & T. Co., 101 id. 487; McCracken v. Flanagan, 127 id. 493; Kennedy v. Lamb, 182 id. 228; Davant v. Carlton, 53 Geo. 491; Starkweather v. Morgan, 15 Kans. 274.

84 The motion may be made either (1) at any time before judgment, or