FORM No. 1199. Affidavit by judgment-creditor to move to come in before judgment as co-plaintiff in a creditor's action.95 I. That this action was brought by the plaintiff above-named as a judgment-creditor of Y. Z., suing on behalf of himself and all others similarly situated, who should come in and contribute to the expenses of the action, to set aside as fraudulent a conveyance made by said Y. Z. to the defendant W. X. [or otherwise according to the case]. II. That deponent is a judgment-creditor of said Y. Z., having recovered judgment against him on the Court of day of 19, in the for $ damages and costs, on which the sum of $ is now due, with interest from said date [allege issue of execution, with or without return, unsatisfied, according to nature of case]. III. That as deponent is informed and believes [state condition of cause]. IV. [State reason for asking leave to intervene, as thus:9] That since no proceedings whatever have been taken in said action [the plaintiff's attorney having died and no person appointed in his place], and no steps whatever have been taken by the plaintiff or the said receiver for bringing the said action and proceedings to a close. V. Deponent is ready and willing to contribute to the expenses of the action on being allowed to be made a party plaintiff, and to prosecute the same. [Jurat.] [Signature.] [Notice to attorneys on both sides; see also Volume I. p. 87.] 95 The court has power to grant such an application (White's Bank of Buffalo v. Farthing, 101 N. Y. 344, 348), but should usually deny it (id.), unless the applicant shows special grounds, such as delay or miscarriage in the cause. In order to entitle the applicant to interfere bv appeal, etc., he should be made a party. Watson v. Cave, 44 Law Times Rep. (N. S.) 40. Before judgment, such an order being discretionary, the court can impose conditions. After judgment, creditors, in an action for common benefit, can as matter of right come in by mere appearance and prove their claims; and will not be bound by a provision in the judgment requiring them to pay their contribution to costs, as a condition. Matter of Lewis v. Hake, 42 Hun, 542. Hence neither before nor after judgment is an order making them parties necessary for the mere purpose of allowing them to prove claims. 96 From 3 Barb. Ch. Pr. 721. FORM No. 1200. Order allowing judgment-creditor to come in as co-plaintiff in creditor's $ action. [As in next Form, adding, if required:] This order is made on condition that said C. D., within days after the date hereof, and before proceeding herein, pay to the plaintiff A. B. hereby fixed by the court as his proper contribution to the costs and expenses of the action for all proceedings up to this date [or may order reference to fix the amount, adding:] and upon confirmation of said report and payment thereunder an order may be entered making this order absolute. Enter: [signature of judge by initials of name and title.] FORM No. 1201. Order allowing bondholders to intervene as co-plaintiffs in trustee's action for foreclosure.97 [Title (court order) and recitals according to the case; see Form 820, p. 1174.] ORDERED, that the said C. D. and E. F. be and they hereby are allowed to come in and be, and hereby are made plaintiffs in this action with the said [original plaintiff], and that all orders heretofore made, and all proceedings in this action, shall stand as the orders and proceedings of this court herein, and that this action proceed in the same manner and with the same force and effect as if the said C. D. and E. F. had been made parties plaintiff at the commencement thereof, and that the said sunmons, complaint and all orders and proceedings herein be and hereby are amended by adding their names as plaintiffs herein. Enter: [signature of judge by initials of name and title.] 97 This may secure them notice of proceedings and the right to ask the carriage of the cause if their coplaintiff is delinquent; see 46 L. T. R. (N. S.) 437, 8 Pac. Rep. 184; but it does not facilitate their contesting any of plaintiff's proceedings, as they could more readily if made defend ants. FORM No. 1202. Order allowing plaintiff in attachment suit to join in sheriff's action on [Title of attachment action.] [Title of sheriff's action.] assets.98 At a Special Term [etc., or the order may be made by the judge who granted the warrant]. [Recitals according to the case; see Forms 819 and 820, p. 1174, inserting:] and it appearing satisfactorily to the court [or, to me] that the applicant C. D. might have procured leave to bring the second above named action in the name of himself and the plaintiff, the said sheriff, jointly; ORDERED, that said C. D. be and he is hereby joined with said A. B., as sheriff, as a co-plaintiff in said second action, and that the summons and complaint [and other proceedings therein] be and hereby are declared to be deemed to be amended accordingly [or may direct service of amended summons and complaint]. [This order is made upon condition that within days after the date hereof and before service of such amended summons and complaint - said C. D. shall pay to said sheriff the sum of dollars expenses already incurred by him therein.] [Authentication as in Form 818, p. 1173.] FORM No. 1203. Petition by prior purchasers to be brought in as co-defendants in I. That this action is brought to foreclose a mortgage on real estate in the city of the payment of made by Y. Z. to M. N. to secure dollars, and was begun, as your petitioners 98 N. Y. Code Civ. Pro., § 679. May adapt affidavit from Form 301, Vol. İ, p. 543. As to proceeding if the actions are in separate courts, see note 76 on p. 1485. 90 From Johnston r. Donvan, 106 N. Y. 269, where the denial of the petition on the ground that the deed are informed and believe, on the last. The time of the defendants to answer [has been extended and] continues until the day of day of next. 19 II. That the property so mortgaged was conveyed by M. N. to the said Y. Z. on or about the day of and the said Y. Z. at the same time gave back the said mortgage to secure a part of the purchase money. III. At that time your petitioners were partners in business. Your petitioners, as such partners, were the real purchasers of said property, and for convenience took the title to the same in the name of the said Y. Z., who held the same in trust for your petitioners as such partners, and subject to the direction of your petitioners, and on or about the day of 19, the said Y. Z. and wife, at the direction of your petitioners, executed and delivered to your petitioner E. F. a proper deed conveying said premises to him, and he has ever since held the title to said premises, in trust for your petitioners as such partners. , IV. That your petitioners have fully and fairly stated the case in this action to their counsel, who resides at No. street, in and that they have a good and substantial defense on the merits in said action, as they are advised by said counsel, after such statement made as aforesaid, and verily believe.1 Said defense is based on the following facts, all of which your petitioners expect to be able to prove, and most of which are within the personal knowledge of your petitioner C. D. [state facts]. V. [If order to show cause is asked, state as on p. 1172.] WHEREFORE your petitioners pray that they may be brought in as parties defendants [if leave to plead anew is desired, ask it; see Forms 1173, etc.], and that they may have such other and further relief as may be just.2 [Date.] [Signatures.] [Verification as in Form 821, p. 1175.] 1 For oath to merits appropriate when the affidavit is made by the attorney, see p. 1373. 2 It was held in Lawton v. Lawton, 54 Hun, 415, 7 N. Y. Supp. 556, that the right of a person to intervene, on showing a substantial interest in the mortgaged premises, was absolute, and that terms upon being allowed to intervene could not be imposed. FORM No. 1204. Order allowing an executor or administrator not served to come in and defend after judgment suffered by his co-executor or administrator.3 [Title (court order) and recitals according to case; see Form 820, p. 1174.] ORDERED, that [upon the above-named- applicant ing with the clerk of the county of depositwithin two days from the entry of this order and service of a copy thereof on his attorney C. T., appearing for him on this motion, the amount claimed herein, to wit, the sum of dollars, together with dollars as security for costs, amounting in the whole to dollars, and paying the costs herein] the default herein be opened and said [name] be and he is hereby permitted to defend this action and serve his answer or demurrer herein within the time above limited; otherwise the said motion be and the same is hereby denied with ten dollars costs in favor of plaintiff, to be paid by the said defendant [name]. And the stay contained in said order to show cause is continued to and including the time hereinbefore specified; and upon the failure to perform the conditions above mentioned, the same. is set aside and vacated. Enter: [signature of judge by initials of name and title.] FORM No. 1205. Notice of motion (or order to show cause) for legatee to come in, in an action to construe a will. [Statement of relief to be inserted in common Form, pp. 1171, 1173, may be thus:] directing the Roman Catholic Orphan Asylum in the city of New York, [naming all] the beneficiaries under the will of J. H. P., deceased, to be brought in as parties to this action, and that the summons and complaint be amended by inserting the names of the said parties as defendants, and that they have leave to come in and answer, setting forth their re 3 See N. Y. Code Civ. Pro., § 1818, p. 732 of Vol. I. and An order in the above Form was sustained in Hertzfield v. Parkes, 19 Wkly. Dig. 238, on evidence of circumstances of collusion or culpable neglect on the part of the executor or administrator served. Compare, under other circumstances another form of order. Guernsey v. Cheyne, 18 Abb. N. C. 361. 4 If the proposed defendant is not ready to come in voluntarily by amendment, or is an infant or otherwise incapable of voluntary appear ance, substitute for the words " summons and complaint be amended " the words "plaintiff issue a supple. mental summons to said that the complaint be amended," continuing as above. and |