V. That if the plaintiff neglect to serve his supplemental complaint, the defendant Y. Z. may apply to the court for an order dismissing the action, and that the said property be delivered by the receiver to the said defendant Y. Z.; and if the said O. P. neglect to answer such complaint, if served as herein directed, the plaintiff may apply, on notice, for an order that said property be delivered by the receiver to the plaintiff.

VI. That

dollars costs be allowed to the said Y. Z., to be deducted by him out of the fund [or, to be paid by the plaintiff, and allowed to him in case of his final recovery of judgment].

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

FORM No. 1155.

Another Form; securities to be delivered to a trust company.

[Substitute for the direction to pay:] That the said defendant The M. Co., deliver to, and leave with The Trust Co., to the credit of this action and within days after entry of this

order, the certain certificate numbered

day of

bearing date the

R. Co., a corpora

whereby it

19, issued by the tion organized under the laws of the State of was certified by the said last mentioned corporation that W. & R. were the owners of shares of the capital stock of said last mentioned corporation, such certificate to be retained by said Trust Company, subject to the further order of this court.

And that the said defendant The M. Co. be and it hereby is discharged from all liability to either party on account of said certificate upon the delivery thereof as aforesaid.

FORM No. 1156.

Affidavit to obtain order that the plaintiffs in two causes in the same court interplead.44

[Title of court and both actions.]

[Venue.]

E. P. C., being duly sworn, says:

I. I am a member of the firm of C. & C., and one of the defendants in the actions above entitled.

44 See note 13 to Form No. 1144. Held, in Tynan v. Cadenas, 3 How. Pr. (N. S.) 78, error to deny the motion on this affidavit, citing Baltimore, etc., R. R. Co. v. Arthur, 90 N. Y. 234. Even the fact that the moving party may have a defense

(which could be waived) will not defeat the motion. Grell v. Globe, etc., Ins. Co., 55 App. Div. 612, 67 N. Y. Supp. 253.

If actions are in different courts, proceed as in note 13 to Form 1144.

II. Each action is brought to recover the price of certain tobacco, which is the same tobacco in each case, alleged to have been sold and delivered to my firm by the plaintiff in each action.

III. A copy of the verified complaint in each action is annexed to this affidavit. The debt alleged in each complaint is the same debt. The action in which J. H. T. is plaintiff was commenced by the service of a copy of the summons and complaint on the day of 19. The action in which J. R. H. and another are plaintiffs was commenced by the service of the summons and complaint on the defendants have not answered or has their time so to do expired. R. H. and another is plaintiff, it will expire on the As to the action in which J. H. T. is plaintiff, it will

day of

day of 19. The pleaded in either action, nor As to the action in which J.

day of

expire on the IV. The demand by each of the said plaintiffs against the defendants is made without collusion on the part of the defendants with them, or either of them.

V. The defendants are entirely ignorant of the rights of the adverse claimants to the purchase price of said tobacco, and ask therefore that the said plaintiffs may be respectively substituted in the place and stead of said defendants in said actions, and that they may be discharged from liability to either on paying into court the sum of dollars, with interest on the sum of

day of
day of

of the debt.

VI. An order to show cause is asked why the said plaintiffs should not be so substituted for the reason that the defendants' time to answer in the action in which H. is plaintiff expires on the inst., as aforesaid. No previous application for such an order has been made.

[Jurat.]

FORM No. 1157.

[Signature.]

Order to show cause why plaintiffs in two causes should not interplead.45 [Entitle in both actions if in the same court.]

[May state relief thus: why the plaintiffs should not be respectively substituted in the place and stead of the defendants in said actions, and why the defendants should not be discharged from liability to either plaintiff on paying into court the sum of

45 See note 13 to Form No. 1144.

why the said defendants should not have such other and further relief as to the court may seem just.

And it is further ORDERED, that said defendants' time to answer each of said complaints is hereby extended to determination of this motion.

days after the Service of a copy of this order on the attorneys for the plaintiffs in said actions respectively on or before the

19 to be sufficient.

[Authentication, see Form 818, p. 1173.]

day of

FORM No. 1158.

Affidavit to obtain order in nature of interpleader, joining a rival claimant, where original defendant disputes liability in whole or in part.46

[As in Form 1144, substituting for paragraph IV:] IV. That the respective claims of said plaintiff and said have been made without collusion of defendant with either of them; the defendant admits an indebtedness to either plaintiff or said dollars only, but disputes and denies liability for the further sum of dollars [state briefly

in the sum of

the ground for denying liability.]

FORM No. 1159.

Affidavit and order to substitute successor of public officer co-defendant. [Adapt from Forms 1132 to 1134.]

46 Allowed under N. Y. Code Civ. Pro., 820, as amended in 1894. The order to be entered will merely join the other claimant as a co-defendant, and direct service upon him of a supplemental complaint, and may be readily adapted from Form No. 1151. A provision in the order discharging the original defendant, upon paying into court the portion admitted, is erroneous. Jackson v. Knick. Athl. Club, 49 App. Div. 107, 62 N. Y. Supp. 1109.

This added portion of section 820 applies only to a case where the question to be determined is as to the right of the rival claimants to money or property in the hands of the defendant, and not to a case where the right of each one of the claimants to recover depends upon a state of facts which does not affect the other claimant. See Sullivan v. Crowe, 72 App. Div. 5, 76 N. Y. Supp. 98.

SECTION III.

PROCEEDINGS OF A THIRD PERSON TO COME IN.

FORMS.

I. SUBSTITUTION OF A THIRD PERSON IN PLACE OF ONE NAMED

ON THE RECORD AS A PARTY.

FORM No. 1160.

Affidavit for motion on behalf of executor or administrator, heir, devisee, assignee, receiver, etc., to be substituted in place of original plaintiff or defendant.47

I. That he was the attorney for the plaintiff [or, the defendant W. X.] in the above-entitled action, and has been retained

herein by and appears for [name of applicant] below named [or otherwise state relation to the cause and means of knowledge, unless clearly implied]. *

II. That this action was brought by said A. B. against said Y. Z. for the purpose [here state nature of cause of action sufficiently to show that it is one that would not abate by death,18 or is assignable, etc., as the case may be,49 and if at issue indicate defense.]

III. [State death, assignment or other ground of the application; see following Forms 1161-1167.]50

IV. [If additional grounds of relief occurring pending the action, on which the representative is entitled to recover, or to predicate an additional defense, are relied on as ground for asking leave to serve supplemental complaint or answer, annex and refer to copy of such proposed pleading.]

V. [State situation of the cause at the time of the death or transfer, and now,52 and if order to show cause is asked, state as on p. 1172.]

VI. [If extension of time or stay is asked, allege merits, etc., as on p. 1373.] [Jurat.]

[Signature.]

[Annex an acknowledged consent of representative or other party to be substituted, unless the affidavit is made by him. 153

STATEMENTS AS TO DEATH, OR OTHER TRANSFER, SUITABLE TO BE INSERTED IN THE FOREGOING FORM.

FORM No. 1161.

Where the application is on behalf of executor or administrator, insert in last Form.

of

III. That pending said action, and on or about the

19, said A. B. died at

day

having first duly made and published his last will and testament, by which he

48 See pp. 1432, 1433.

49 See Vol. I, p. 504.

50 A receiver has no absolute right to be substituted as the plaintiff. Fitzpatrick v. Moses, 34 App. Div. 242, 54 N. Y. Supp. 426.

51 As in De Lisle v. Hunt, 36 Hun, 620.

52 The death of a party does not terminate a pending reference, but it

is suspended until continued by the substitution of the representative. Matter of Venable, 104 App. Div. 531, 93 N. Y. Supp. 1074.

53 Order of substitution reversed when affidavit was made by attorney who had represented the deceased party, and no consent of representative annexed. Wilson v. Harter, 57 App. Div. 484, 68 N. Y. Supp. 116.