FORM No. 1174.

Clause requiring appearance.

That on said C. D. causing a notice of appearance for himself herein to be given to plaintiff's attorney within days from the entry of this order, a copy of the complaint as amended be served upon his attorney within twenty days thereafter, and the cause thereupon proceed in like manner as if said C. D. had been originally made a party-defendant herein.

FORM No. 1175.

Answer to stand, but with leave to amend.

That the answer of the said Y. Z. be deemed the answer of the said W. X., as administratrix as aforesaid, with leave to the said W. X. to serve an amended answer within after service of this order, if so advised.

FORM No. 1176.

Order that amendment be deemed to have been made.

days

That the complaint in this action be taken and considered as amended by substituting the name of J. R. as sole executrix under the last will and testament of J. R., deceased, in the place of J. R., as plaintiff, and also adding the following clauses to said complaint:

That upon the day of leaving a last will and testament.

That on or about the

19

day of

the said J. R. died,

19 said will was

duly admitted to probate by the surrogate of the county of and on said day letters testamentary were duly granted and issued to this plaintiff, as sole executrix thereof, and plaintiff has ever since, and is now, performing her duties as such executrix.

And that said complaint be taken and considered as amended, by inserting in the place of the word "plaintiff," wherever it occurs, the words " one J. R."

FORM No. 1177.

Leave to make supplemental complaint.

[Insert or substitute at the in Form 1172:]with leave to said [name of applicant] to file and serve the amended summons and the supplemental complaint above mentioned within days after service of this order.

69 De Lisle v. Hunt, 36 Hun, 620, allowing supplemental complaint by administrator to recover rents and

69

profits in ejectment, although the intestate's estate terminated by her death.

FORM No. 1178.

Condition that supplemental pleading be made.

[Insert or substitute in Form 1172:] This order is made upon condition that said [name] files and serves a supplemental complaint [or, answer] within days after service of this order.70

FORM No. 1179.

Conditions as to security.71

This order is made on condition that the plaintiff gives security for costs within days after service of a copy of this order, dollars.

in the sum of

FORM No. 1180.

Direction to answer.

This order is made on condition that said [applicant] serve a verified answer herein within days.

FORM No. 1181.

Saving clause as to attorney.

But said [name of applicant] shall make no change of attorney of record for the [plaintiff; if receiver, may add: nor of counsel] in the conduct of the cause, unless upon appiication to the court, and upon showing satisfactory cause therefor.72

FORM No. 1182.

Direction to enter nunc pro tunc.73

That this order be entered nunc pro tunc, as of the day of

19 .

FORM No. 1183.

As to evidence.

That the evidence already taken in the cause stand as the evi dence in the cause so continued. See Form No. 1172, note 66.

70 The court may require the applicant to make a supplemental pleading if justice entitles the adverse party to take issue on the applicant s right. Smith u. Zalinski, 94 N. Y. 519.

See Knoch r. Funke, 28 Abb. N. C. 240. 19 N. Y. Supp. 242. 72 Matter of Wilds, 6 Abb. N. C.

307.

Or a substitution may be expressed to be without prejudice to the lien of the attorney, and that he shall be continued as plaintiff's attorney until his lien is satisfied. Edwards v. City of Watertown, 23 Wkly. Dig. 230.

73 See Vol. I, p. 242.

FORM No. 1184.

Direction as to date of issue or retaining position on calendar.

day of

19

That issue shall be of the [Or, that this case, No. on the general calendar of issues of fact, retain the place upon such calendar which it now occupies, and that the proceedings had upon the amended [or, supplemental] pleadings shall not affect the place of the case upon such calendar or render necessary the service of a new notice of trial.]74

FORM No. 1185.

Order substituting infant heir and guardian ad litem75 to prosecute appeal after sole plaintiff's death.

[Title of cause.]

day of

At a Special Term [etc., as in
Form No. 820, p. 1174].

On reading and filing the petition, duly verified, dated the day of 19 of S. H. M., infant son of the plaintiff in this action, from which it appears that said plaintiff died on the 19 leaving said S. H. M. his sole heir-at-law [or, leaving a last will and testament, by which he devised the lands affected by this action to said petitioner], and praying that J. M. G., the attorney for the said plaintiff, may be appointed the guardian ad litem or next friend of the petitioner, to continue his action, and prosecute the appeal herein, in the name and on behalf of said petitioner; together with the consent of the attorneys for the defendant:

ORDERED, that the said J. M. G. be and he is hereby appointed the guardian ad litem or next friend of the said S. H. M., to continue this action and prosecute the appeal therein, and that said action and the appeal therein stand continued in the name of said S. H. M. by said J. M. G., as his said next friend or guardian ad litem.

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

74 Section 723, as amended in 1900. 75 See Vol. I, p. 587.

FORM No. 1186.

Petition by receiver for leave to be substituted for a party in an action which was pending when he was appointed.76

I. That by order in the first above-named cause, made and entered the

day of

last, your petitioner was duly appointed receiver of [briefly indicating what].

[Or where appointed in supplementary proceedings:] I. That on the day of 19 , upon application duly made by M. N., a judgment-creditor of the above-named A. B. in proceedings supplementary to execution, your petitioner was, by the order of Hon. , one of the justices of the Supreme Court ], duly appointed

[or, county judge for the county of receiver of the property of said A. B.

II. That thereafter your petitioner duly qualified as such, and entered on his duties as such, and now is such receiver.

III. [Allege pendency and nature of action; and of defense, if at issue; and condition of cause," and other matters, as in Form 1160].

tution as well as the fact of leave granted. The latter allegation is not essential, for the receiver may apply on his own responsibility without leave.

As to the right to proceed in the name of his debtor, see Phoenix Warehousing Co. v. Badger, 6 Hun, 293; Ross v. Wigg, 100 N. Y. 243; Matter of Lansing, 17 Wkly. Dig. 288.

As to how far bound if not substituted, see Spencer v. Berdell, 45 Hun, 179; People v. Knickerbocker, etc., Ins. Co., 43 id. 574; Platt v. Ashman, 32 id., 230; Mount . Manhattan Co. (N. J., May, 1887), 8 Centr. Rep. 573.

77 If collusion between the parties be relied on, allege evidence. A gen

WHEREFORE your petitioner asks leave to prosecute [or, defend]78 said second above entitled cause, and that for that purpose he be substituted as plaintiff [or, defendant] in place of said [name], and for such other or further relief as may be just.

[Date.]

[Signature.]

[Verification as in Form 821, p. 1175.]

[Notice of presentation or order to show cause, see Vol. I, pp. 322, 323.]

FORM No. 1187.

Affidavit on behalf of successor in administration or trust, to move to continue action brought by his predecessor.79

[As in Form 1160, to the *.]

II. That this action was brought by A. B. and C. D. as [executors of and trustees under the will of M. N., deceased] for the purpose of [state object and nature of action].

III. [State condition of cause, death, etc., as thus:] That said action being at issue on the pleadings, the same, and all the issues therein, were, by order made 19 referred to R. F., Esq.,

as referee to hear and detrmine the same.

IV. That while the trial of said action was pending before the referee, and on or about the

day of

19 the said A. B. died, and that said action was continued by the said C. D., as sole surviving executor of and trustee under said will, until on or about the 19 when he also died,

day of

leaving the said suit undetermined.

V. That by a decree of the surrogate of

made at a surrogate's court, held in and for the said county of

county, duly

day of

deponent was duly appointed administrator with the

eral allegation upon information and belief, without stating any fact or the sources of information, is insufficient; and an order granting such petition against a positive denial by plaintiffs is erroneous. Honegger v. Wettstein, 13 Abb. N. C. 393, 94 N. Y. 252.

78 Or to defend said, etc., action so far as necessary for the protection of the fund of which he is receiver.

See Honegger v. Wettstein, supra. As a general rule, in an action for a mere money judgment on a contract,

will

a receiver of the property of the defendant, not being a party to the contract, should not be allowed to come in as a party defendant.

Honeggar v. Wettstein (above cited).

Especially not to be substituted for a defendant against the objection of plaintiff seeking to recover against the defendant. Ross v. Wigg, 100 N. Y. 243. Compare note 58 on p. 1478.

79 Sustained by Wood v. Flynn, 30 Hun, 444.