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76

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

on the day of

19 at
o'clock

M., or as soon thereafter as counsel can be heard, why the order of publication herein dated the day of

19 should not be set aside on the 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.

Service of this order, and the annexed affidavit, on or before the day of

19, shall be sufficient.
[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 day of

19 and was filed in the office of the 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.), 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 note 72 to previous Form 446. As to jurisdiction, or the order does not what insufficiency of affidavit prevents comply with the statutory require acquiring jurisdiction, see discussion ments, it is not essential that the and cases cited in article on SERVICE motion specify the objections. See 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 are 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

19. [Jurat.]

[Signature.] FORM No. 450. 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

at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that

on the

day of

19

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77 Where publication is ordered, the by the publication of a copy substanstatute must be strictly pursued, and tially correct. An omission of unpublication made in a different paper necessary words cannot vitiate. Van than that directed by the court, is Wyck v. Hardy, 4 Abb. Ct. App. Dee. void, without reference to the ques. 496; Brennen r. North, 7 App. Div. tion whether defendant was preju. 79, 39 N. Y. Supp. 975. Nor will an diced. Brisbane 1. Peabody, 3 How. error in the plaintiff's name. Far: Pr. 109.

rington v. Muchmore, 52 App. Dir. But publication in the paper in 247, 65 N. Y. Supp. 432. Nor error tended, although the name differs in date of summons as published, somewhat from that in the order, is showing a date later than the order. sufficient. Waters v. Waters, 7 Misc. George v. Fitzpatrick, 41 N. Y. Supp. 519, 27 N. Y. Supp. 1004.

211, 25 Civ. Pro. Rep. 383. An order for publication is satisfied

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on the

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.]

[Signature of], Attorney for Y. Z., for

the purpose of this motion only. [Address], TO 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.]

On the summons in this action and the annexed affidavit of Z. T., verified the day of

19 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 and county's of

day of 19 at o'clock

M.,

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 affidavit days, on or before the

day of

19 shall be sufficient.

ORDERED further, that said defendant's time io 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 ir full discussion of the requirements of regularity of the summons, the notice the New York rule, p. 122 of this or order to show cause must specify volume. the irregularities complained of. Gen. 79 As to the place for moving, see Rule No. 37; O'Neill v. Bender, 13 p. 101 of this volume. Ilotchkiss v. Wkly. Dig. 47; Skinner v. Noyes, 7 Crocker, 15 How. Pr. 336; Johnston Robt. 228. Stating as the ground that v. Bryan, 5 id. 355; Davison v. Powell, the papers were “irregular, defective, 13 id. 287; McCarthy v. McCarthy, 13 and insufficient,” is too vague.

Had Hun, 579, 54 How. Pr. 97. ley v. Gutridge, 58 Ind. 302. See, for

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FORM No. 452.
Order on motion to set aside summons where appearance was special.

At a Special Term [etc.

see p. 255.] [Title of cause.]

On reading and filing the order to show cause, granted by Mr. Justice J. K. and dated the day of

,19 with the affidavit of Y. Z., verified the day of

19 thereto annexed, in support of this motion, (and the affidavit of t. B., verified the day of

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 plaintiff 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.]

day of

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

19

he saw in a copy of the

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].

[If there has been any irregularity in the proceedings, it may be useful though not necessary, to establish it.82 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 that time, and from the day of

to the day of 19 was a resident of

in this 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 like83].

II. [If judgment is entered84] That upon the order for service of summons by publication, and on affidavits of service pursuant

80 Under N. Y. Code Civ. Pro., stantial defense the court must allow $ 445; not applicable to partition, if him to interpose his answer, upon final judgment has been entered. Id., terms. Marvin v. Brandy, 56 Hun, § 1.557.

242, 9 N. Y. Supp. 593, 18 Civ. Pro. 81 The object of such an allegation 343 (holding that the cases under the as to the time of first notice of the Code of Procedure are inapplicable). action, is to show that plaintiff has

83 As to the requisite cogency of not been guilty of laches in making evidence, see Carleton v. Carleton, 85 the present motion; and although the N. Y. 313; Kennedy r. N. Y. Life Ins. statute gives him a right to be let in & T. Co., 101 id. 487; McCracken r. upon sufficient cause shown, the sulli Flanagan, 127 id. 493; Kennedy v. ciency of the cause will often involve Lamb, 182 id. 228; Davant 1. Carlton, the question of diligence.

53 Geo. 491; Starkweather v. Morgan, 82 It is not necessary to show any 15 Kans. 274. irregularity in the plaintiff's proceed 84 The motion may be made either ings, but if defendant discloses a sub (l) at any time before judgment, or

19

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