of

dollars without the said S. Co. having received any compensation therefor to the damage to that amount of the S. Co. and of the stockholders thereof and of these plaintiffs.

That the plaintiff has commenced an action in this court, as well on his own behalf as that of all other stockholders similarly situated with him against the said S. Co. and the directors and managers thereof, and against the said B. Co. and the directors and managers thereof, for the purpose of procuring a judgment against the said individual defendants, forcing them to account for the moneys received for the said dollars of bonds, or the bonds themselves, if the same have not yet been distributed, and for the purpose of causing to be transferred, if the same has not been heretofore done, the capital stock of said B. Co. which is owned, beneficially at least, by said S. Co. to said Co., and to restrain the defendants forever from interfering with the proceeds of any of said mortgages in any other way than to pay them over to the S. Co., or a receiver, to be appointed by the court to receive the same on behalf of said S. Co.

III-V. [As in III and VI of following Form.]

VI. That the testimony of said persons is material and necessary for the plaintiff herein for the prosecution of this action, and that he may know therefrom the particulars of the facts, which will enable him to frame a complaint. That he is not now able to frame his complaint, and does not know the circumstances under which the said mortgages were placed upon the said B. Co.'s property, and does not know to whom the proceeds of said mortgages have been paid, except in a general way that they have been divided among the defendants and other persons, but who these other persons are he does not know.

VII. That the production of certain of the books and papers of the defendant, the S. Company, is necessary to enable the plaintiff to obtain the examination which he desires to make of the affairs of said S. Co., and that the defendant, J. W. F., as president, and T. B. K., as treasurer and secretary of said S. Co., have possession of the books and papers, which the plaintiff desires produced; that said books are the cash-books of the said S. Co., and the ledger of the said S. Co., and particularly the minute books of the transactions of the directors of said S. Co.8

In an affidavit and order for the production of books and papers of a corporation, their names must be

given. Williams v. W. U. Tel. Co., 47 N. Y. Super. Ct. 380.

The said named officers are the directors thereof whose testimony is necessary and material.

[Continue as in Form 427, p. 706, of Volume I, beginning with paragraph VIII to end.]

FORM No. 1014.

Affidavit to obtain examination of party to enable other party to plead (General Form).9

[Title of court and action.]

[Venue.]

A. B., being duly sworn, says:

I. That he is the [defendant above named]. [If not a party state name, and relation to cause.]

day of

II. That this action was commenced by the service of summons [and complaint] on deponent, on the and no answer has been served, and defendant's time to serve his answer expires on the

day of

19 .

III. That the names and residences of all the present parties to this action [if any are unknown, add, so far as their residences or names and residences can be ascertained], and the facts as to whether they have appeared, by attorney or otherwise, or not, are as follows:10

PLAINTIFFS, who appear by A. T., of

whose [office] address is

A. B., who resides at No.

county of

their attorney,

.11

street, in the city of

and State of

, county of

C. D., who resides in the town of and State of

DEFENDANTS: W. Z., who resides at No. [state address], and

who has appeared by T. Z., of

[office] address is

W. Y., who resides at

Y. Z., who resides at

his attorney, whose

and has appeared in person. and has not appeared.

[Or if very numerous, may more conveniently annex and refer

to a tabular schedule.]

9 Read carefully the text at p. 1349 et seq., for decisions and authorities upon the general requisites of the moving papers.

10 To refer to a party as "J. T., of ," does not comply with the statutory requirement of a statement

of the residence. Dennis v. Tebbetts, 29 Misc. 600, 61 N. Y. Supp. 503.

11 An omission to state attorney's residence or office address is a fatal omission. Depierris v. Slaven, 74 Hun, 628, 26 N. Y. Supp. 970.

[If any names or residences are unknown, show effort to ascertain names and residences and inability to ascertain.12]

IV. That this action is brought [here state the nature of the action, and the substance of the judgment demanded therein.] V. That the defense in this action is [here state the nature of the defense, unless by plaintiff before issue joined.]

VI. That the said [plaintiff], whose examination is desired, is now residing [or, sojourning-or, regularly transacting business] at [stating place; and if a town or city, the street and number; and, if a resident of the State but not of the county where the examination is sought, add:] and has there an office for the regular transaction of business in person. [If a nonresident, and leave is desired to serve in any other county than that where the order is to require him to attend for examination, add reason.]

[Or where plaintiff is a corporation.] That the plaintiff, whose examination is desired, is a corporation having its office at That the names of the officers [or, directors] thereof, whose testimony is material and necessary for defendant are [stating their names and residence].

VII. That the testimony of the said [plaintiff] is material and necessary to enable defendant to frame his answer herein, and that without the same, he is not able to frame his answer for the reason [stating reasons fully].13

VIII. [May add other facts to show a case within N. Y. Code Civ. Pro., 88 870 and 871.]

IX. That no previous application for examination of said [name] has been made herein [except, etc.].

X. Where additional time to plead is desired, state (if not already stated) condition of cause, and add affidavit of merits as in Form 1031, p. 1373, post.

XI. [If sanction for less than five or more than twenty days' service is desired, state special circumstances making such time of service necessary.] 13a

[Jurat.]

[Signature.]

[For Form of Order, see EXAMINATION BEFORE TRIAL, chap. XIII, Art. VI, post, Form 1409, p. 1642.]

12 Simmons v. Hazard, 65 Hun, 112, 20 N. Y. Supp. 508, 23 Civ. Pro. Rep.

15.

13 See for instances of affidavits successfully meeting this requirement, Kramer v. Kramer, 79 App. Div. 615,

74 N. Y. Supp. 1049; Koppel v. Hatch, 50 Misc. 626. If the application is by a defendant, the facts sought must relate to an affirmative defense.

13a Miller v. Nevins, 115 App. Div. 139.

FORM No. 1015.

Affidavit to obtain examination of plaintiff to enable defendant to plead and to prove his case (defense of fraud to action on a sale).14

[As in last Form, substituting for paragraphs IV, V and VII, as follows:]

bales of Malta col

IV. The complaint is for the price of ored rags, alleged to have been sold by plaintiff to defendants, and judgment is demanded for dollars, with interest and costs.

V. The nature of the defense is that the sale was fraudulent and void, and that the goods are not what they were falsely and fraudulently represented and warranted to be. Before purchasing I examined said goods, so far as was then possible. They were packed in bales, so as to be incapable of internal examination, but from all examination in my power, the bales appeared to contain rags, as represented and warranted by the plaintiff. After receiving and sending said bales to the paper-mill, about

bales, taken at hazard, were opened for use, and t contents thoroughly examined and sorted, and each and every bal was then found to contain, so packed and arranged as to be undiscoverable on external examination, a large mass of rubbish, which were not rags of any kind, nor or any pecuniary value, averaging about of the whole weight, as I am informed by the persons who opened, sorted and weighed the same, and verily believe. I tendered to the plaintiff a return of said goods, which he refused.

VII. The plaintiff has in this action attached said goods, and the same are held by the sheriff in behalf of plaintiff, and I am unable to examine the bales not already opened, or to ascertain the contents thereof, except by an examination of the plaintiff.

The defendant desires to examine the plaintiff to prove the contents of the bales not yet opened, and to prove the fraudulent and deceitful packing and arrangement thereof, and to prove plaintiff's knowledge of and connection with such frauds, both for the purpose of preparing their answer and establishing the facts on the trial of the action; and that the testimony of plaintiff is material and necessary to prove the said facts, because, as I believe, the plaintiff has special knowledge of the facts not possessed by any one else, and has control of the bales attached and of the means of proving their contents.15

14 Adapted from Sprague v. Burthmont, 22 Hun, 502. Appeal dismissed in 84 N. Y. 649.

15 For another Form by inspection of documents, see Brooke v. Foster, 20 Abb. N. C. 200.

ARTICLE II.

FORMAL PARTS OF PLEADINGS.

[A complete collection of the various Forms constituting the formal parts of pleadings are presented in ABBOTT'S FORMS OF PLEADINGS (edition of 1898), Vol. I, Chapter I.]

ARTICLE III.

VERIFICATION OF PLEADINGS.

[The general subject of verification is treated in Vol. I, p. 485 et seq.]

1. Requisite form.] - The principles on which the statutory requirement of verification is to be construed and applied are already stated.16 Substantial compliance is essential.17

2. "Subsequent pleading."]

The phrase," subsequent pleading," in the cases and statutes on this subject, means a pleading

16 Page 485 of Vol. I of this work.

The formal requisites, such as venue, jurat, and authentication, are those stated in Vol. I, p. 13, etc., as to affidavits.

17 Morris v. Fowler, 99 App. Div. 245, 90 N. Y. Supp. 918.