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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.10

Enter: [signature of judge by initials of name and title.]

FORM No. 988.

Affidavit to move for enlargement of time to surrender.

[Title of court and action.11]

[Venue.]

C. D., being duly sworn, says:

day of

I. That he is one of the bail of the defendant Y. Z. in this action; that said Y. Z. was arrested about the 19 , by virtue of an order of arrest, on the ground that [here state ground of arrest, so as to show that it was not concealing a chattel, etc.]; and that on the 19 the deponent [and E. F.] became bail for said defendant by giving an undertaking of which a copy is hereto annexed.

day of

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.]

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 surrender after answer, see Bank of Geneva t. 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).

[Signature.]

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.

FORM No. 989.

Notice of motion for enlargement of time to surrender.

[As in Form No. 815, substituting for the words between the t 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

[Title of court and action.14]

[Venue.]

cipal.13

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

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day of

19

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II. That [after the issuing, and before the return of the said execution, and] on or about the

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day of 19 the' [or, if imprisoned, allege it

[Jurat.]

FORM No. 991.

[Signature.]

Order exonerating bail on death or imprisonment of principal.16

[Caption (court order), and recitals, as in Form 820 of this volume.]

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 days1 after service of this order, the costs and expenses [etc.18]. Enter: [signature of judge by initials of name and title.]

13 The application is too late after the bail has become charged. Hissong v. Hart, 39 N. Y. Super. Ct. 411.

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., § 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.

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Petition to authorize next friend of infant, idiot, or lunatic to sue to annul

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age of

day of

I. That A. B., [otherwise called A. Z.,] is an infant, of the years on the 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

last, at

the form of marriage was gone

day of 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.1 [Or in case of lunatic or idiot - that the said 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."]

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was then

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.]

WE HEREFORE, 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.]

[Verification, as in Form 821 of this volume.]

[Signature.]

[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."]

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.

4 N. Y. Code Civ. Pro., § 1744.
5 N. Y. Code Civ. Pro., § 1748.

FORM No. 993.

Order allowing next friend to sue to annul marriage.6

At a Special Term [etc., as in Form 820 of this volume].

In the Matter of the Application

the

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.

day of

On reading and filing the annexed petition of M. N., verified day of 19 [and the consent of C. D., to serve as next friend as hereinafter provided dated and acknowledged the , 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 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:

19 9

;

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, between said A. B. and Y. Z.

Enter: [signature of judge by initials of name and title.]

II. ALIMONY AND COUNSEL FEE.

FORM No. 994.

Affidavit upon motion for alimony and counsel fee by wife, plaintiff.8 [Title of court and action.]

[Venue.]

A. B., the plaintiff above named, being duly sworn, says:
I. That this action is brought against the defendant for an

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. Y. 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 counsel fee should be determined upon a

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