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FORM No. 1104. Order for judgmeat for sum admitted by the answer to be due. [Title (court order) and recitals, according to the case; see Form
820, p. 1174.] ORDERED, that this action be and is hereby severed; that judgment be entered for the plaintiff for [specify precisely the relief to which the plaintiff is entitled by reason of the admission], without costs, unless upon the application for judgment plaintiff's attorney file with the clerk of this court a duly executed stipulation that the plaintiff elects not to continue the action, and that, upon so filing such stipulation, said judgment shall be entered with costs to be taxed; it is further
ORDERED, That if the plaintiff within days after the entry of this order shall elect to continue this action, and shall within that time serve upon defendant's attorney notice of such election, the action may be continued against the defendant with like effect as to the subsequent proceedings as if it had been originally brought for the remainder of the claim made in the plaintiff's complaint and not admitted by the answer.
Enter: [signature of judge, by initials of name and title.]
FORM No. 1105. Admission by plaintiff of defendant's counter-claim.42 [Title of court and action.]
The plaintiff in the above-entitled action hereby admits the counter-claim interposed by the defendant's answer to the [first] cause of action stated in plaintiff's complaint.
[Date.] Date, 1
[Signature and office address of],
Plaintiff's attorney. [Under N. Y. Code, Civ. Pro., § 512, notice of this is not necessary; filing it justifies entry of judgment as to the excess, as if on default.]
FORM No. 1106. Judgment entered by clerk on admitted cause of action, less admitted counter
claim. [Title of court and action.]
The plaintiff having filed with the clerk of this court a state ment dated the day of ,19 , admitting the counterclaim contained in the answer of the defendant [or, defendants, naming them], and said answer not denying the plaintiff's claim as set forth in his complaint, and the plaintiff's costs having been duly taxed at the sum of dollars, now, on motion of A. T., attorney for the plaintiff:
41 Plaintiff cannot recover costs unless he elects not to continue the action. Waite v. Kaldenberg Co., 68 Hun, 528, 22 N. Y. Supp. 1006.
42 Applies only to actions on contract where plaintiff demands judgment for a sum of money only. Hall v. Holt, 25 Hun, 277.
IT IS ADJUDGED, that the plaintiff recover of the defendant [or, defendants, naming them] dollars, being the excess of the plaintiff's claim over the said counter-claim, with dollars costs of this action and dollars disbursements, making together dollars.
[Under N. Y. Code Civ. Pro., $ 512, this is the proper Form in a case where judgment can be entered by the clerk without application to the court; see $$ 420, 1212.]
FORM No. 1107.
820, p. 1174.] [Names of parties.]
The defendant herein, Y. Z., having by his answer admitted the plaintiff's claim, but having alleged a counter-claim for the sum of dollars, which is less than the claim set forth in plaintiff's complaint herein, and the plaintiff having duly filed with the clerk of this court an admission of the said counter-claim, duly signed according to the rules and practice of this court, now, on motion of A. T., attorney for said plaintiff:
IT IS ORDERED, that A. B., the plaintiff herein, recover from Y. Z., said defendant, the sum of dollars, with interest from the day of , 19 , being the excess of said plaintiff's claim over and above the amount of said counter-claim, together with his costs and disbursements of this action to be taxed by the clerk of this court, and that the plaintiff have execution therefor.
Enter: [signature of judge by initials of name and title.] [Under N. Y. Code Civ. Pro., $ 512, this is the proper Form where application to the court for judgment is necessary; see $ 1215.43]
43 S. P., under Code Pro., $ 246; Robbins v. Watson, 22 How. Pr. 293.
FORM No. 1108. Notice of motion for judgment on a frivolous pleading.14 [As in Form 815, p. 1171 of this volume, substituting for the italic matter between the I and the l as follows:45] overruling the answer [or, demurrer — or, reply46] herein as frivolous, and for judgment thereono? [or, striking out the defense in the answer herein as sham,48 and for judgment on the remainder as frivolous].
44 By N. Y. Code Civ. Pro., $ 537, this motion may be made to the court or a judge thereof upon at least five days' notice to the adverse party; and in the City Court of New York two days' notice. Id., § 3161.
And the court cannot shorten this time by order to show cause. Beal v. L'n. Paper Box Co., 4 N. Y. Civ. Pro. Rep. 18; Law v. Maher, 9 Wkly. Dig. 38; Foote v. Carpenter, 7 Wis. 395.
The motion is not premature before the adverse party's time to amend of course has expired. Lee v. Jacob, 38 App. Div. 531, 56 N. Y. Supp. 645; Ross 1. Ross, 25 Hun, 642. Nor too late after that time. Darrow v. Mil. lor, 5 How. Pr. 247, 3 Code Rep. 241.
45 On motion for judgment on the answer "as frivolous," no affidavit is piecessary or available to show the frivolousness. Dancel v. Goodyear, etc., Co., 67 App. Div. 498, 73 N. Y. Supp. 875; Darrow v. Miller, (above).
The answer must be treated as an entirety; no motion will lie against part of an answer as frivolous (unless the remainder has been stricken out as sham or irrevelant). See Siriani r. Deutsch, 12 Misc. 213, 34 N. Y. Supp. 26; Colt v. Davis, 50 Hun, 366, 16 Civ. Pro. Rep. 182. Or, after a demurrer to the rest of the answer has been sustained. Austen v. Westchester Tel. Co., 8 Misc. 11, 28 N. Y. Supp. 77.
A pleading is frivolous only when so clearly bad on its face as to require no argument to support the moving party's position. That the pleading may be demurrable is no ground for adjudging it frivolous. See Bedlow v. Stilwell, 45 App. Div. 557, 61 N. Y. Supp. 371; Shaw v. Feltman, 99 App. Dä, 614, 91 N. Y. Supp. 114.
That the moving party submits an extended argument upon the application may be a reason for denying it, see Exchange F. Ins. Co. v. Norris, 74 Hun, 527, 26 N. Y. Supp. 823.
A denial of any knowledge or in. formation sufficient to form a belief as to matters of public record is frivolous. Austen v. Westchester Tel. Co., 8 Misc. 11, 28 N. Y. Supp. 77; City of New York v. Matthews, 180 N. Y. 41.
A demurrer based on an obvious clerical error is frivolous. King 0. Mail & Express Co., 113 App. Diy. 90.
46 A counterclaim cannot be overruled as frivolous. Fettretch v. McKay, 47 N. Y. 426, 11 Abb. Pr.(N. S.) 453.
The remedy in such a case is by demurrer, or by motion to make definite. Page 1412; Cooper v. Howe, 16 Hun, 502; Curtis 1. Sprague, 41 Cal. 55.
47 Where the prayer was for such other order as the justice shall deem proper, held that judgment for the frivolousness of the answer could not be granted. Darrow v. Miller, 5 How. Pr. 247; S. P., Rae v. Washington Mut. Ins. Co., 6 id. 21.
48 The application may be joined with a motion to strike out as sham, but in such case the application must be made to the court. Adams v. McPartten, 11 Abb. N. C. 369; Berrigan v. Oviatt, 3 How. Pr. (N. S.) 199; Howell v. Ferguson, 87 N. C. 113; and affidavit will be necessary.
It is better to specify which are claimed to be frivolous and which sham, but in Bailey v. Lane, 13 Abb. Pr. 354, modifying 21 How. Pr. 475, this was held not essential.
FORM No. 1109.
Order for judgment on a frivolous pleading. [Caption and recitals according to the case ; see Form 819 or 820,
p. 1174 of this volume.] IT IS ORDERED AND ADJUDGED, that the answer (or other pleading] of the [defendant] herein be and the same is hereby overruled49 as frivolous *; and that the [plaintiff] have judgment thereon for the relief demanded in the complaint, with the costs of this action, and ten dollars costs of this motion.50
[Authentication; see Form 818, p. 1173 of this volume.]
FORM No. 1110.
The same; granting leave to amend.51 [As in preceding Form to the asterisk] with leave to the de fendant to answer [or, to the plaintiff to reply] anew within days after service of this order, upon [state terms as thus: the payment of dollars costs of this motion52]; and that if he fail to serve such answer and pay such costs the (plaintiff] have judgment for the relief demanded in the complaint, with costs of this action, and dollars costs of this motion.
[If a writ of inquiry is necessary to assess damages,53 may add:] And it is further ordered and adjudged, that if the said [defendant] fail within days after service of this order, to serve an answer as aforesaid, the damages sustained by the [plaintiff] be assessed by a jury, and that a writ of inquiry be for that purpose issued, directed and delivered to the sheriff of the county of and that for his damages so assessed, together with his costs to be taxed, plaintiff have judgment against the defendant.
[Authentication; see Form 818, p. 1173 of this volume.]
49 A frivolous pleading is not struck out, but remains upon the record, and forms part of the judgment-roll. Colt v. Davis, 50 Hun, 366, 16 Civ. Pro. Rep. 182; Reese v. Walworth, 61 App. Div. 64, 69 N. Y. Supp. 1115; Briggs v. Bergen, 23 N. Y. 162; Strong v. Sproul, 53 N. Y. 497. Contra in Wis. consin. Malone v, Roby, 62 Wis. 459.
50 Compare Hill r. Simpson, 11 Abb. Pr. (N. S.) 343; Whitman v. Nicoll, 16 id. 329, 49 How. Pr. 88; N. Y. Code Civ. Pro., 88 3251, 537, and 3239.
51 Where it appears that the answer was put in, in good faith, and merits
are properly sworn to, an amended answer may be allowed upon terms. Stedeker v. Bernard, 4 Monthly L. Bul. 31; Witherspoon v. Van Dolar, 15 How. Pr. 266; Fales v. Hicks, 12 How. Pr. 153. But an oath to merits is required in order to get leave. Appleby v. Elkins, 2 Sandf. 673; 2 Code Rep. 80; Bank of Lowville t. Edwards, 11 How. Pr. 216. For Form, see p. 1373 of this volume.
52 Bernhard v. Kapp, 11 Abb. Pr. (N. S.) 342.
53 Lane v. Gilbert, 9 How. Pr. 150; Gilbert v. Rounds, 14 id. 46.
FORM No. 1111.
820, p. 1174.] ORDERED, 1. That the plaintiff's attorney hereby is required to disclose to the defendant's attorney the place and street and number of plaintiff's residence within days after service on plaintiff's attorney of a copy of this order.
2. That until such address be furnished to defendant's attorney all the proceedings on the part of the plaintiff herein are hereby staved.
[3. That plaintiff pay to defendant's attorney dollars costs of this motion.]
Enter [signature of judge by initials of name and title.]
1 The power of the court to require a party to disclose his residence is the subject of some difference of opinion. It is clear that the court may require either party to disclose his address as a condition of being allowed to proceed actively in the cause, and this will usually be effectual with a plain tiff, or a defendant seeking affirmative relief. In an unreported case, LAWREXCE, J., denied a motion to compel the attorney to give his client's address, because the attorney made affidavit that he was unable to do so, his client being absent; but nevertheless stayed all proceedings on the client's part until he should return to the city and submit to examination under the order which it was sought to serve on him. See also Olmstead r. Wehle, 18 Wkly. Dig. 486.
For such purpose the order may be served on the attorney.
It is the better opinion that in
those cases where the fair administration of justice requires it, the court may order an attorney, being its officer, to disclose his client's address (unless a privileged communication), and punish him for contempt if he refuses. See Havana City Ry. Co. r. Ceballos, 25 Misc. 660, 56 N. Y. Supp. 360.
Whether the pleading of a concealed defendant can be struck out (see p. 1341) for the refusal of his attor. ney to disclose the address, is another question.
In any case the application will be made on affidavit showing necessity, and inability to ascertain the address (including the fact that the attorney has, on request, refused to disclose the address. Goodness r. Met. St. Ry. Co., 27 Misc. 11, 57 N. Y. Supp. 100), and if stay or order to show cause is asked. the usual allegations. See Forms Nos. 816 and 817, p. 1172.