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custody until he shall pay said sum, or shall be discharged according to law. Lot a warrant of commitment issue accordingly.52
FORM No. 1008.
Order of arrest in divorce or separation,63 [Caption — court order — see Form 820, supra, p. 1174 of this
volume.] To the Sheriff of any county of the State of New York: It appearing to the court by the affidavit of A. T., verified
, 19 , and from the verified complaint herein, that the judgment demanded requires the performance of an act, to wit, the payment by defendant to plaintiff of a just and reasonable sum for her maintenance and support, the neglect or refusal to perform which will be punishable by the court as a contempt, and that the defendant is a non-resident of this State (or, is either not now a resident of the State of New York, or is about to depart therefrom], by reason of which there is danger that the judgment or order requiring the peformance of said act will be rendered ineffectual; and an undertaking on the part of the plaintiff having been dispensed with ;
You are hereby required to forthwith arrest the defendant, Y. Z., and hold him to bail in the sum of dollars, by written undertaking executed by two or more sufficient bail conditioned to the effect that said defendant will obey the directions of the court or of an appellate court, contained in an order or a judgment requiring him to perform said act as above set forth, or, in default of his so doing, that he will at all times render himself amenable to proceedings to punish him for the omission; and return this order, with your proceedings thereunder, as pro vided by law.
82 See note in 34 L. R. A. 665, on imprisonment as a mode of enforcing payment of alimony.
53 Boucicault v. Boucicault, 21 Hun, 431.
III. CUSTODY OF CHILDREN.KA
FORM No. 1009. Affidavit upon motion for custody of minor children.58 [Title of court and action.]
LAs in Form 994, or as in Form 996 to the *, continuing:).
II. Deponent further shows that the only [living] issue of the marriage between deponent and said defendant (or, plaintiff], are two children, a boy named
of the age of and a girl named
of the age of , who are now in the custody of said defendant [or, plaintiff]; and that he refuses to allow them to remain with deponent, or even to visit her, or to let deponent see them. [State facts as to the defendant's business or habits, or his neglect or inability to provide for or nurture the children, such as go to support the application.]
WHEREFORE, deponent asks that the custody of the said children may be awarded to deponent, and said defendant ordered and directed to deliver said children up to her, and be restrained and enjoined thereafter from claiming or interfering in any manner with them or either of them, or with deponent in her custody thereof, and for such other or further order as may be just. [Date.]
[Signature.] [Verification, p. 1175 of this volume, Form 821.]
FORM No. 1010. Order to show cause why plaintiff should not have custody of children, and
meanwhile forbidding their removal, and allowing plaintiff to see them. [Title of court and action.]
On the summons and complaint annexed [or, heretofore filed and served herein), and the annexed affidavit of A. B., plaintiff herein, verified the day of , 19 ,
54 Only as incident to an action for divorce or separation; and in these actions the power of the court to make orders concerning the custody of the children is purely statutory. Salomon v. Salomon, 101 App. Div. 588, 92 N. Y. Supp. 184, 34 Čiv. Pro. 113. The action of the Supreme Court in this matter is discretionary, and not reviewable by the Court of
Appeals. Osterhoudt v. Osterhoudt, 168 N. Y. 358.
55 N. Y. Code Civ. Pro., § 1771; Osterhoudt v. Same, 48 App. Div. 74, 62 N. Y. Supp. 529; Price v. Price, 55 N. Y. 656; Kamp v. Kamp, 59 N. Y. 212; Crimmins v. Crimmins, 28 Hun, 200; Conn v. Conn, 57 Ind. 323; Holt v. Holt, 19 Centr. L. J. 24; Re Ensign, 103 N. Y. 284.
ORDERED, 1. That the defendant show cause, at a Special Term of this court, to be held at the Court House in , on the
day of , 19, at o'clock in the noon, or as soon thereafter as counsel can be heard, why the custody of the plaintiff's children, C. and D. B., should not be given to the plaintiff during the pendency of this action, and why such other or further relief should not be granted to the plaintiff in the premises as to the court may seem just. 56
2. That meantime, and until the entry of an order on this motion, defendant is hereby restrained and enjoined from re moving the said children, or either of them, from the jurisdiction of this court.
3. That the defendant meanwhile allow the plaintiff to see and converse with the children at all reasonable times.
4. Service of this order on the defendant on or before the day of
19 , shall be sufficient. [ Authentication as in Form 818, p. 1173 of this volume.]
FORM No. 1011. Order awarding the custody of children to mother, with special directions. [Caption (court order) and recitals, according to the case; see
Form 820, p. 1174 of this volume.]
ORDERED, that the custody, care and education of M. N. and O. N., the children of the marriage be, until further order, awarded to the plaintiff exclusively [but they are to be kept within the jurisdiction of the court57], and that the defendant is hereby enjoined from interfering with either of said children, or with the plaintiff in her custody of them; and that the defendant shall not, until further order, be permitted to visit the said children except under the direction of one of the justices of this court [or, the referee heretofore appointed in this cause].58
TOr leave may be given, as thus: but the defendant shall, until otherwise ordered by the court, be allowed to enter upon the premises where the children may be and see the children in the presence of any person in charge of the children, twice a week, between the hours of two and four in the afternoon, for a period not exceeding an hour each time, without the mother's consent for him to remain longer.] [Or thus: subject to the right of the defendant to the frequent companionship of said children at all reasonable times. Either party may hereafter, upon proof of the experimental difficulties in the carrying out of this order on account of the conduct of the other party apply to this court for a modification hereof and for a more precise statement of the privileges of each party as to said children.5']
56 Under a notice of motion for alimony and counsel fee and “ other and further relief” the court may not properly decide as to the custody of the children. Wood 1. Wood, 61 App. Div. 96, 70 N. Y. Supp. 72.
57 Campbell 0. Campbell, 37 Wis. 206.
68 See Codd . Codd, 2 Johns. Ch. 141; Welch r'. Welch, 33 Wis. 535. Security may be required. People o. Paulding, 15 How. Pr. 167.
Enter: (signature of judge by initials of name and title.] [Enforce, if necessary, by attachment or habeas corpus.59*]
ure of judge buto said childre precise st
Osterhoudt 0. Same, 48 App. Div. 74, 62 N. Y. Supp. 529.
THE PLEADINGS, AND PROCEEDINGS INCIDENTAL THERETO.
ARTICLE 1. INSPECTION OF WRITINGS AND EXAMINATION OF PARTIES, TO
ENABLE TO PLEAD.
V. AMENDING AND WITHDRAWING ONE'S OWN PLEADING,
PLEADING; AND COMPELLING ELECTION,
INSPECTION OF WRITINGS, AND EXAMINATION OF PARTIES, TO ENABLE TO
PLEAD. 60 [In the language of the courts of chancery “ Discovery” included both the responding to interrogatories which called for testimony of defendant, and the production of documents by him. The legislature in 1830 reduced the necessity of filing bills for discovery by giving the late Supreme Court power to compel discovery to be made by producing documents (2 N. Y. R. S., 199, § 21), but not by answering interrogatories. Hence the phrase “ discovery and inspection," or more shortly, “discovery," was used in the common law courts to mean only a discovery of writings.
When the Code of Procedure was adopted, bills of discovery were abolished, and the right to examine the adverse party as a witness before trial, was substituted (note to Glenny v. Stedwell, 1 Abb. N. C., 332), and by the Code of Civil Procedure (in 1876) the regulations as to this orál discovery — called now “examination before trial”— were merged with those regu. lating the taking depositions of witnesses not parties (N. Y, Code Civ. Pro., § 872). This for a time obscured the rule of law, which yet remained unchanged, that testimony of parties can, although that of witnesses cannot, be taken by way of discovery. Thus it has come about that " discovery” is
co The general and special rules applicable to these matters, together with a variety of forms, will be found further on in this volume, where the much more frequent application, after issue joined and in preparation for trial, is treated. Chapter XIII, Art. V, p. 1632, post.