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to recover the moneys contributed or paid by the plaintiffs under and in pursuance of said contract.
III. That prior to the commencement of this action the plaintiffs, believing that they had been defrauded, but not understanding the exact method and nature of the fraud by which they had been induced to part with their money, caused some investigations to be made, the substantial results of which were embodied in the original complaint in this cause; but that afterwards, when the cause came to be tried, the plaintiffs found that, while the matters of fact stated in the complaint were substantially true, yet that the complaint was not as full and as accurate in all relating to the details of the fraud as the proofs upon the trial.
IV. That on the trial the plaintiff's counsel prepared and sub mitted to the court proposed findings of fact, intending to ask the court, in case said findings of fact should be adopted by the court, to confirm the pleadings thereto, but that the court rendered judgment for the defendants, which judgment was affirmed by the Appellate Division. But the judgment of the Special Term and of the Appellate Division has been reversed, and a new trial granted by the Court of Appeals.
V. That after the commencement of this action, J. H. H. and J. A. A., who were originally co-plaintiffs, transferred and assigned their shares and interests in the cause and causes of action set forth in the complaint to the plaintiffs R. P. G. and S. E. G.
VI. That the proposed amended and supplemental complaint hereto annexed, embodies the facts which, as deponent believes, were substantiated by the proofs given on the trial of this cause, and that while the said proposed amended and supplemental complaint embodies substantially the same cause of action set forth in the original complaint, and does not involve any abandonment of such cause or such original complaint, it states more accurately and fully than the original complaint did, the details of the fraud complained of by the plaintiffs, and the connection of the defendants therewith.
VII. [If order to show cause is asked, etc., state as on p. 1172.] [Jurat.]
(T. & C.) 174; mem. s. c., 1 Hun, 115; aff'd, 58 N. Y. 636, holding that the court had power in its discretion to make the order. See, also, Glen ville Woolen Co. v. Ripley, 11 Abb. Pr. (N. S.) 87.
In equity omitted parties or parties not duly served may be brought in even after judgment and sale, by opening the judgment. See Rice o. Barrett, 99 N. Y. 403; Wood v. Kroll, 43 Hun, 328.
FORM No. 1114. Notice of motion (or order) that an unnecessary party be struck out.63
[As in other Forms (see 815, p. 1171, 818, p. 1173), stating relief thus:] That the summons and complaint (and other proceedings if necessary] herein be amended by striking out the name of W. X.; and that the plaintiff A. B. may proceed with this action, hereafter omitting the name of W. X. as a [defendant] therein, without prejudice to the proceedings already had.
FORM No. 1115. Notice of motion (or order) for leave to change a co-plaintiff to a defendant.
[As in other Forms (see No. 815, p. 1171, No. 818, p. 1173, stating relief thus:] allowing the plaintiff A. B. to amend the summons and complaint herein, by striking out C. D. as plaintiff, and making him a defendant herein, without costs as to the other defendants (and to issue a supplemental summons against said C. D.85].
FORM No. 1116. Affidavit to obtain leave to add formal parties (with leave to amend).60 [Title of court and cause.] [Venue.]
A. B. being duly sworn, says:
I. That he is the plaintiff [or, defendant] above named (or if otherwise, state relation to the cause and means of knowledge,
63 Notice must be given to the defendant whose name is sought to be stricken out, if he has appeared in the action prior to the hearing of the motion. Stephens . Hall, 25 Abb. X. C. 300, 10 N. Y. Supp. 753, 19 Civ. Pro. Rep. 37.
If the only relief sought is the dropping of the name, this order that the action continue is enough. Such was the direction on this point in Getty r. Spaulding, cited on p. 1441.
See, generally, Vol. I, pp. 716, 719, and Form 431.
64 Newl. Ch. Pr., 161.
65 This may not always be necessary.
88 The application is frequently made ex parte, where the change is
merely formal; but if it be such that any party who has been served could be affected in right, in the scope of the controversy, or in relief, by the order, he ought to have notice even if he has not appeared; for a failure to appear in response to a summons to appear and answer in a suit for specified relief between A. and B. ought not to deprive defendant of the opportunity to litigate a substantial question brought in by joining C., or by asking different relief, or relief on different facts. See, for an application of the principal involved, though relating to service of an amended pleading, Merrill v. Thompson, 80 App. Div. 503, 81 N. Y. Supp. 122, and cases cited.
unless implied, and if leave to do more than add or strike out a formal party is asked, state reason why the applicant's affidavit is not presented, unless proposed new pleading duly verified is annexed]. *
II. [State facts constituting ground of application as thus:] That this action is brought to foreclose a mortgage upon the property of the defendant, the
Company, including certain real property in the city and county of New York; that the summons and complaint in this action were duly filed in the office of the clerk of the city and county of New York, on the day of
, 19, and notice of pendency of this action was duly filed in said clerk's office on the day of , 19 , at about o'clock M.; that the defendant, the
Company, has appeared herein by A. & G., its attorneys.
That since the said complaint and notice of pendency of action were filed, it has been ascertained by deponent, through an official search, that the following persons have, or claim to have some lien upon, or interest in the premises and property sought to be fore closed in this action, which lien, if any, accrued subsequently to the lien of the mortgage sought to be foreclosed herein, viz., F. A. and B. C.
That it is now desired to amend the summons, complaint, and notice of pendency of action, and all the papers herein, by adding the above-named persons as parties defendant herein [and if other allegations are desired to be made, add: and to make such changes in the complaint as are contained in the annexed proposed amended complaint); and that a supplemental summons issue directed to such additional defendants, to the end that they may be brought in as parties hereto.
[If changes in the allegations of the original complaint are proposed, indicate the substance concisely, as thus:] That the amount of the bonds certified by the plaintiff is correctly stated in the annexed proposed amended complaint, as deponent has ascertained after careful examination of the facts; that in other respects there is no difference between the said proposed amended complaint and the complaint as already filed herein.
III. [If order to show cause is asked, or application is ex parte, state as to condition of cause, reason, and no previous application, etc., as required; see p. 1172 of this volume.] [Jurat.]
FORM No. 1117.
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of action.]
Upon reading and filing the annexed proposed amended complaint, duly verified, and the affidavit of A. T., verified the day of , 19 , [and proof of the due service of notice of this application upon all the defendants who have appeared herein] and on motion of A. T., attorney for the plaintiff :
ORDERED, 1. That the summons, complaint, and notice of pendency of action, and all the papers and proceedings herein be, and the same hereby are amended, by adding as defendants herein F. A. and B. C.
2. That the plaintiff be, and hereby is, allowed to file and serve the annexed amended complaint, and to file notice of pendency of action amended so as to include the parties who are added as defendants by this order, and that the said annexed amended complaint stand as the complaint herein.
3. That a supplemental summons issue herein, directed to the parties who are added as defendants by virtue of the provisions of this order, to the end that they may be brought in as parties defendant in this action.
4. That all proceedings had herein stand with the same force and effect as if this action had been brought originally against the defendants as constituted by the amendment (but without prejudice — may insert saving clause if necessary).
FORM No. 1118. Affidavit to move for leave to bring in a new-born infant.87 [Substitute in Form 1116] II. That this action was brought [stating object, as thus:] for the partition of lands between the parties hereto as heirs [or, for the construction of the will] of M. N. mentioned in the complaint herein [and state condition of cause, as thus:] That on the day of
, 19 , the cause being at issue, and all the parties to this action appearing before the court at Special Term, the cause was heard upon the
67 See Peter v. Thomas Peter, L. R., 26 Chan. Div. 181.
As to barring the rights of unborn infants by action, see Bowman v. Tallman, 27 How. Pr. 212; aff'd, 40 id. 1; 8. c., 2 Robt. 385; afd, 41 N. Y. 619;
Mead v. Mitchell, 17 N. Y. 210; Chinn v. Keith, 4 N. Y. Supm. Ct. (T. & C.) Rep. 126; S. C., sub, nom. Chism v. Keith, 1 Hun, 589; Brevoort v. Grace, 53 N. Y. 245.
has yete was decided on or about
merits and fully argued and submitted to the decision of the court. That thereafter, and on or about the day of , 19, the case was decided by Mr. Justice D., but no judgment or decree has yet been entered herein. That after the hearing and argument of the cause, and pending its consideration by the court, an infant daughter was born to the defendants W. X. and V. X. his wife, and the said infant has some interest under the trusts created in and by the will of M. N., mentioned in the complaint herein.
That (the deponent is advised by his counsel, A. T., of street, in
that] the said infant daughter is a necessary party defendant to this action, and that a supplemental summons ought to issue for the purpose of making her a party defendant, and that a supplemental complaint should be made accordingly.
FORM No. 1119. Notice of motion (or order) to bring in new-born infant. [As in other Forms, No. 815, p. 1171, 818, p. 1173, stating relief thus:] allowing plaintiff to bring in C. D. as a defendant herein [the name C. being fictitious and the real first or Christian name, if yet given, being to said plaintiff as yet unknown, the person intended being the infant daughter of the defendant, Y. Z., born on or about the day of
, 19 ], and that the [second] supplemental summons and complaint annexed may be filed and served herein [or, that a — second — supplemental sunmons issue for that purpose, and that a - second — supplemental complaint may be made in accordance with the facts set forth in the annexed affidavit, and in such manner and form as fitly to set forth and charge the interest of the said C. D.].
FORM No. 1120. Affidavit to move to bring in one who, pending the action, has made himself
liable to suit and injunction. TAs in Form 1116, to the *) II. That this action was commenced by the service upon defendant Y. Z., on or about the
day of , 19 , of the summons, complaint, affidavits and order to show cause, containing a temporary injunction, which cnjoined the defendant from doing the things sought to be restrained permanently by judgment in the action, which order is still in full force; and a motion thereon made to continue the said injunction during the pendency of the action, is now pending and undctermined (or otherwise according to the fact). That since said order was made and served, the defendant Y. Z. has executed the contract with W. X., which is set forth in the proposed supple