spective claims, such order to be without prejudice to the proceedings heretofore had in said action [or may ask further trial; see Forms 1173, etc., 1212].

FORM No. 1206.

Order thereon.5

[Title (court order) and recitals according to the case; see Form 820, p. 1174.]

*

*

*

ORDERED, that the Roman Catholic Orphan Asylum, in the city of New York, etc. the beneficiaries under the will of J. H. P., deceased, be brought in as parties defendant to this action; and the summons and complaint be and the same hereby are amended by inserting the names of said parties defendant, and that they have leave to come in and answer within [twenty] days, setting forth their respective claims; this order to be without prejudice to the proceedings heretofore had in said action, and the testimony already taken and proceedings had to stand the same as if taken and had after said answer had been served; and that the said action be considered as tried and submitted, the same as though the trial had been had after the putting in of said answer.

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

FORM No. 1207.

Order to show cause why creditor should not be allowed to come in after expiration of time limited in action for dissolution of corporation or creditor's action.6

[Name of] Court [or, if a court order] At a Special Term [etc., as in Form 820, p. 1174].

On the annexed affidavit of M. N., verified on the

day of

19 [and specify other papers, if any others are

relied on] let the said R. C., receiver of

show cause at

on the

a Special Term of this court, to be held at the County Court House [or, at the City Hall] in the city of

day of

19

at 9

A. M., or as soon thereafter as counsel may be heard, why the claim of said M. N., as set

5 This was the form of order in Power v. Cassidy, 79 N. Y. 602. See, also, Haas v. Craighead, 19 Hun, 396. For other directions, see Forms 1173, etc.

6 Such an application is a step in the action, and not a special proceed

ing. People v. Am. L. & T. Co., 150 N. Y. 117.

See, also, Kerr v. Blodgett, 48 N. Y. 62; People v. Security Life Ins. Co., 79 id. 267; Attorney-General v. Continental Life Ins. Co., 88 id. 77; N. Y. Code Civ. Pro., § 1807.

forth in said affidavit, should not be allowed and paid to the extent that there are funds left in the hands of the receiver, proportionably applicable thereto, and why such other or further relief as may be just should not be granted. And in the meantime, and until the hearing and decision of this motion, let all proceedings on the part of said receiver or of his said attorneys, or of any other persons with respect to said receivership and the funds. thereof, be stayed.

Service of a copy of this order on or before the

day of

Affidavit of landlord to move to be made co-defendant in ejectment.7

I. That this action is now pending in this courts by A. B., plaintiff, against Y. Z., defendant, for the recovery of the possession of certain real property, situated in

and known as No. street, and more particularly described in the complaint in said action; which action the petitioner is informed and believes [is at issue, but] has not proceeded to judgment" [or otherwise state condition of cause].

II. That said Y. Z. occupies said premises as tenant of this deponent, and not otherwise. 10 That this deponent claims in good faith to be the owner in fee-simple of said premises [here may briefly indicate the source of title,11 e. g., thus], having purchased the same at a sale by the sheriff of

7 This affidavit might be made by the attorney. Jackson v. Stiles, 1 Cow. 134.

8 For the effect as to removal of the cause, see Phelps v. Oaks, 117 U. S. 236.

9 The order may be made at any stage of the action. State of N. Y. r. Mayor, etc., of New York, 3 Duer, 119. It was held that it must be made before judgment, in Carswell v. Neville, 12 How. Pr. 445. But the court have power after judgment.

10 Plaintiff not allowed to object that lease was not formally correct

upon a judg

in respect to the manner of execution. Carleton v. Darcy, 90 N. Y. 566.

11 Substitution in ejectment against lessee, of purchaser at foreclosure of mortgage on leasehold, as defendant in place of lessee, allowed, on ground that there was a transfer of interest such as is contemplated by N. Y. Code Civ. Pro., § 756. Conger v. Duryee, 22 Wkly. Dig. 193.

An exhibit of the applicant's title is not essential, it would often be harsh to require it. Stribling v. Prettyman, 57 Ill. 371.

ment and execution duly issued thereon against the property of one M. N., who, as this deponent is informed and believes, was the owner in fee-simple of said premises at the time of said sale. [If order to show cause or stay is asked, see pp. 1172, 1373.] [Jurat.]

[Signature.]

FORM No. 1209.

Affidavit by person interested in the subject of action to intervene in action.12 [Title of court and action.]

[Venue.]

C. D., being duly sworn, says:

I. That the above-entitled action is brought for [the recovery of the possession of certain personal property, to wit, one hundred barrels of flour]; which action has not, as deponent is informed and believes, proceeded to judgment [or otherwise state condition of cause].

II. That the defendant received the said [flour] from this deponent for storage, and this deponent is the sole owner thereof.

III. That the claim of the plaintiff in this action is made adversely to deponent's title, and deponent desires to litigate the question directly with him.

[Jurat.]

12 See paragraphs 9, 10, p. 1439,

supra.

Compare Carney v. Gleissner, 62 Wisc. 493, 22 N. W. Rep. 735; Hornby r. Gordon, 9 Bosw. 656; Conklin v. Bishop, 3 Duer, 646.

For illustrations of the principle that an application to intervene, made by one claiming adversely to the plaintiff, will not be so readily entertained as others; see Rothwell v. Dewees, 2 Black (U. S.) 613; Francis v. U. S., 5 Wall. (U. S.) 338; U. S. v. Patterson, 15 How. (U. S.) 10; Bel

[Signature.]

locque v. U. S., 8 Ct. of Claims, 493; Roberts v. Ismay, 51 N. Y. Super. Ct. 531.

The rule in New ork has yielded to the statutory provisions (Code Civ. Pro., 452), under which it is mandatory upon the court to permit the intervention, and without terms (Uhlfelder v. Tamsen, 15 App. Div. 436, 44 N. Y. Supp. 484), unless prejudicial conduct by intervenor be shown (Wall v. Beach, 20 App. Div. 480, 47 N. Y. Supp. 33). See, also, Friedman v. Schreiber, 50 Misc. 617.

FORM No. 1210.

Petition of bondholder to come in as defendant in foreclosure by trustee, on allegations of collusion.13

[Allege facts as to nature and condition of action, the right of the applicant, and the grounds for asking to come in.]

[Also, if order to show cause is asked, state as to previous application.]

WHEREFORE, your petitioners pray that they may be made parties to this action, and allowed to present charges against the said receiver, his management and accounts, and to surcharge and falsify the same, and to apply for his removal; that said accounts may be submitted to a proper examination, at which your petitioners, and all other bondholders in like case, may be allowed to attend by counsel; that the said judgment herein entered may be vacated or amended by striking out the objectionable provisions hereinbefore referred to; and that in the meantime all proceedings for the enforcement of said judgment may be stayed until the further order of this court, and that your petitioners may have such other and further relief as their case may require, and as may be agreeable to equity.

[Date.]

[Signature.]

[Verification as in Form 821 p. 1175.]

13 Sustained in De Betz's Petition, 9 Abb. N. C. 246, where the form of the order will be found.

See, also, Williams v. Morgan, 111 U. S. 684; U. S. Trust Co. v. N. Y., West Shore, etc., Ry. Co., 6 Civ. Pro. Rep. (Browne) 90, 67 How. Pr. 390.

Unsecured creditors have not a right to intervene in the foreclosure of a railroad mortgage. Herring v. N. Y., Lake Erie & W. R. R. Co., 105 N. Y. 340; abst. s. C., 19 Aob. N. C. 340, with note.

For cases on the rights of stockholders to intervene in an action by or against their corporation, or its receiver, see Hosmer v. Standard Shoe Mach. Co., 85 App. Div. 485, 83 N. Y. Supp. 413, reversing 39 Misc. 204, 79 N. Y. Supp. 390; Fontana v. Haskin, etc., Co., 85 Hun, 219,

32 N. Y. Supp. 956; People v. Hektograph Co., 10 Abb. N. C. 358; Kimball v. Ives, 30 Hun, 568; Cudlipp v. Maxim Gas Mach. Co., 7 Wkly. Dig. 84; appeal dismissed in 75 N. Y. 610; Brinckerhoff v. Bostwick, 99 N. Y. 185; Smith v. Smith Moquette Loom Co., 20 Wkly. Dig. 342; Ithaca GasLight Co. v. Treman, 30 Hun, 212, aff'd, 93 N. Y. 660; People v. Globe Mut. Ins. Co., 27 Hun, 539.

For cases on the rights of policyholders to intervene on dissolution of insurance company, see AttorneyGeneral v. N. A. Life Ins. Co., 77 N. Y. 297, 6 Abb. N. C. 293; People v. Globe Mut. Ins. Co., 27 Hun, 539. Attorney-General v. Continental Life Ins. Co., 27 Hun, 195, 63 How. Pr. 129; Attorney-General v. N. A. Life Co., 91 N. Y. 57.

FORM No. 1211.

Order to show cause (or notice of motion) on asking leave to intervene. [Title and recitals according to the case, see Form 820, p. 1174; and may ask relief, as thus: for an order; — or, why an order should not be made] directing [name of applicant] to be made a party defendant herein [as administrator of M. N.], with leave to appear as such, and directing the summons and complaint to be amended accordingly and a copy thereof served on him, and allowing him to answer or demur to said amended complaint, or take such action thereon as he may be advised, and such other or further relief as may be just. [See for other Forms Nos. 1173, etc., 1212.]

[Stay.]

Meanwhile all proceedings on the part of the said for the purpose of [discontinuing this action], are hereby stayed until the entry and service of an order upon this motion.

[Direction for notice in lieu of stay.]-And meanwhile and until the decision of this application, ordered that the [plaintiff] herein give notice to said [name of applicant] of all proceedings in said action, in the same manner and to the same extent as if said were a party on the record, having duly appeared and demanded service of papers.

Service of this order and the papers on which it is made on the attorneys for the

shall be sufficient.

on the

day of

[Authentication as in Form 818, p. 1173.]

FORM No. 1212.

Order giving leave to intervene (general Form).

19

[Title (court order) and recitals according to case; see Form 820, p. 1174.]

ORDERED [continue as below, or see other Forms 1173, etc.] [Applicants made defendants.] That said [names] be and they hereby are made parties defendant in this action, and that the trial and findings herein and the judgment entered in this action be and the same are hereby set aside, and vacated, and that the said defendants so joined may appear and answer the plaintiff's complaint within [twenty] days after the entry of this order.

[Or-leave to come in and answer.] That the said W. X. may become an additional party defendant in this action by serving notice of appearance and an answer herein within days after entry of this order; and that thereupon the summons