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ORDERED, that the defendants C. D. and E. F. have days from the date of service of their answer] in which to surrender the said Y. Z. into the custody of the sheriff of the [city and] county of , upon the order of arrest and execution issued against the body of said Y. Z., at the suit of plaintiff in this action against him.'
Enter: [signature of judge by initials of name and title.]
FORM No. 988.
C. D., being duly sworn, says:
I. That he is one of the bail of the defendant Y. Z. in this action; that said Y. Z. was arrested about the day of , 19 , by virtue of an order of arrest, on the ground that [here stałe ground of arrest, so as to show that it was not concealing a chattel, etc.] ; and that on the day of , 19 , the deponent (and E. F.) became bail for said defendant by giving an undertaking of which a copy is hereto annexed.
II. [Here state excuse for not having surrendered in season — e. g., sickness of bail,12 mistake as to time, or collusion of the creditor with the debtor — and specify what means, if any, the bail took at any time to ascertain where the principal was, and to effect his surrender.]
III. [State, if practicable, facts showing that a surrender is possible. 1
TV. That informed for delay
IV. That no action has been commenced against the bail, as deponent is informed and believes (or if application is made after answer, state excuse for delay]. [Jurat.]
10 As to terms for allowing sur render after answer, see Bank of Geneva 1. Reynolds, 12 Abb. Pr. 81; Warren Mfg. Co. v. Christern, 1 Monthly L. Bul. 21; Douglass v. Haberstro, 21 Hun, 320, 8 Abb. N. C. 230, 59 How. Pr. 194 (appeal dismissed in 82 N. Y. 572).
11 If an action has been commenced against this bail, this motion will be made in the new action, and will ask relief upon payment of the costs.
12 Baker v. Curtis, 10 Abb. Pr. 279. 13 The application is too late after the bail has become charged. Hissong v. Hart, 39 N. Y. Super. Ct. 411.
FORM No. 989. Notice of motion for enlargement of time to surrender. [As in Form No. 815, substituting for the words between the and [:] that the undersigned bail of the defendant Y. Z. in this action have days further time to surrender him to the sheriff in their exoneration:
FORM No. 990. Affidavit to move for exoneration of bail on death or imprisonment of prin.
cipal.13 [Title of court and action.14] [Venue.]
C. D., one of [or, and E. F.] the bail for the defendant Y. Z. in this action [or, if in previous action, state it as in Form 986), being duly [and severally) sworn [each for himself], says:
I. That judgment was obtained and docketed in this [or, said] action against said Y. Z. on or about the day of 19, and that an execution in due form was duly issued thereupon on the day of , 19.
II. That (after the issuing, and before the return of the said execution, and] on or about the day of , 19 , the said defendant died at 15 [or, if imprisoned, allege it — e. g., as in Form No. 986]. [Jurat.]
[Signature.] FORM No. 991. Order exonerating bail on death or imprisonment of principal.16 [Caption (court order), and recitals, as in Form 820 of this
ORDERED, that said bail [naming them], of said defendant Y. Z., be and they are hereby exonerated and discharged from all liability [if action begun against the bail upon paying to the plaintiff above named or his attorney, within days after service of this order, the costs and expenses [etc.18].
Enter: [signature of judge by initials of name and title.]
14 See note to Form 986.
15 Presumptive proof of the death of their principal entitles the bail to exoneration. Merritt v. Thompson, 1 Hilt, 550 (where principal has gone to sea and not been heard from for a considerable time).
16 Under N. Y. Code Civ. Pro.,
§ 601, this order is made by the court in which an action against the bail is pending.
If further time is given, the application must be on notice.
17 Code Civ. Pro., 8 601. As to length of time, and as to enforcing conditional order, see volume I, p. 231.
18 The terms are in the discretion of the court.
INTERLOCUTORY PROCEEDINGS PECULIAR TO DIVORCE.
FORMS. 1. NEXT FRIEND.
1003. Affidavit to obtain order for se992. Petition to authorize next friend
questration and receiver. of infant, idiot or lunatic, to
1004. Order for sequestration and re
ceiver. sue to annul marriage. 993. Order allowing next friend to
1005. Affidavit to obtain order to sue to annul marriage.
show cause why husband should not be punished for
not paying alimony. II. ALIMONY AND COUNSEL FEE. 1006. Order to show cause thereon. 994. Affidavit for alimony and coun
1007. Order adjudging husband in sel fee by wife, plaintiff.
contempt for failure to pay 995. The same, pending appeal.
alimony. 996. Petition for alimony and coun
1008. Order of arrest in divorce or sel fee by wife, defendant.
separation. 997. Notice of motion, or order to show cause, for alimony.
III. CUSTODY OF CHILDREN. 998. Order directing reference as to 1009. Affidavit upon motion for cuscounsel fee or alimony, or both.
tody of minor children. 999. Order to pay alimony and coun 1010. Order to show cause why plainsel fee.
tiff should not have custody 11000-2. Speciai clauses such as are
of children, and meanwhile sometimes inserted in order to pay
forbidding their removal, and alimony and costs.)
allowing plaintiff to see them. 1000. If the allowance dates back. 1011. Order awarding the custody of 1001. Stay of proceedings.
children to mother, with 1002. Condition.
I. NEXT FRIEND.
FORM No. 992. Petition to authorize next friend of infant, idiot, or lunatic to sue to annul
marriage.1 To the The petition of M. N. shows:
I. That A. B., (otherwise called A. Z.,] is an infant, of the age of years on the day of
last [or, an idiot - or, a lunatic — and if so adjudged, state inquisition, as in Vol. I, Form 337; or otherwise, make a brief presentation of his mental condition, according to the fact].
1 See volume I, p. 306, as to Petitions generally.
As to similar applications in other cases than divorce, see volume I, Chapter II, Article VIII.
2 The application is not, as in the case of a guardian ad litem, to be made to a judge out of court, but to the court. N. Y. Code Civ. Pro., 88 1744, 1748.
II. That said A. B. resides at
[stating facts as thus] with your petitioner, who is her aunt, and both the parents of said A. B. are dead. The only other relatives of said A. B. within this State are C. B. and D. B., her cousins, who reside at No. street, in the city of 3
III. On information and belief, that on or about the day of last, at
the form of marriage was gone through between said A. B., otherwise called A. Z. and Y. Z., of ; that the said
was then under the age of legal consent, to wit: only years of age; that •deponent's information is derived from statements made to her by said A. B., and the record of said marriage of which a certified copy is hereto annexed (or otherwise ;] that the parties to said supposed marriage have not at any time since said
attained the age of legal consent, freely cohabited as husband and wife.*
[Or in case of lunatic or idiot — that the said was then and ever since an idiot — or, lunatic as aforesaid, and has never since been restored to a sound mind, but said lunacy still continues and said Y. Z. is still living.]
IV. [State any further facts rendering an action desirable; or annex and refer to proposed complaint.]
V. [If application is ex parte, or order to show cause is asked, as in Form 816 or 817 of this volume.]
WHEREFORE, your petitioner prays this court to allow her to bring an action to annul said supposed marriage on the grounds aforesaid, and for such other or further relief as to the court may seem just. [Date.]
[Signature.] [Verification, as in Form 821 of this volume.]
[Consent of proposed next friend if the foregoing petition is made, not by him but by a third person, as in Vol. I, Form 341, substituting “ next friend” for “guardian ad litem.”]
[Acknowledgment, as in Form 822 of this volume.]
[Affidavit of proposed next friend to his competency, if required by the court, as in Vol. I, Form 342, substituting “next friend” for “guardian ad litem.”]
4 N. Y. Code Civ. Pro., § 1744. 6 N. Y. Code Civ. Pro., & 1748.
3 Sufficient should be stated as to relatives to guide the discretion of the court in directing what notice, if any, should be given. For notice, see volume I, pp. 322, 323.
FORM No. 993.
At a Special Term [etc., as in Form
820 of this volume].
In the Matter of the Application
of M. N., for leave to sue as next friend of A. B., an infant, to annul a marriage between said A. B. and Y. Z.
On reading and filing the annexed petition of M. N., verified the day of , 19 [and the consent of C. D., to serve as next friend as hereinafter provided dated and acknowledged the day of
, 19 ], and proof of due notice of this motion given, pursuant to the direction of the court, to C. B. and D. B., by its order dated and entered herein on the
day of ,19 ; and after hearing A. T., of counsel for the petitioner, and no one appearing in opposition; and due deliberation having been had; now, on motion of A. T., attorney for the petitioner:
ORDERED, that said M. N. is hereby allowed, as next friend of A. B., of , an infant [or, idiot — or, lunatic], to maintain an action to annul the marriage, or supposed marriage, be tween said A. B. and Y. Z." Enter: [signature of judge by initials of name and title.]
II. ALIMONY AND COUNSEL FEE.
FORM No. 994.
A. B., the plaintiff above named, being duly sworn, says:
6 This action by next friend, or parent, cannot be defeated by proof of the infant's infidelity. Slocum v. Slocum, 37 Misc. 143, 74 N. Y. Supp. 447.
Although this is a court order, a motion to vacate may only be made to a court held by the same judge. Code Civ. Pro., $ 1755.
7 The spouse for whom the action is
to be brought by the next friend must be made a party to the action. Fero v. Fero, 62 App. Div. 470, 70 N. V. Supp. 472 (sustaining demurrer upon ground of defect of parties); Wood v. Baker, 43 Misc. 310, 88 N. Y. Supp. 854 (refusing judgment upon default because of non-joinder).
8 The amount of alimony and coun sel fee should be determined upon a