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and complaint shall be deemed amended by naming him therein as a co-defendant.
[Or- amended summons and complaint to be served.] That the plaintiff be required to issue, file and serve an amended summons and complaint, inserting the name of said [applicant], and inserting in said complaint the necessary allegations entitling the said [applicant] to participate in this action, and that the summons and complaint so amended, as aforesaid, be served upon the [attorney of the] defendant, Y. Z., within [ten] days after the entry of this order.
[Speeding the cause; judgment to stand.] That the cause be placed upon the
term calendar, and short notice of trial accepted for the term; also that the said
stipulate to try the cause when reached, and that the judgment stand as security. .
[Terms.] That as a condition of being allowed to intervene, as hereinbefore provided, the said W. X., with his answer, pay to the plaintiff the sum of dollars, being term fees for the [May] term, and the disbursements made to witnesses attendant at said term. 14
[Saving clause as to proceedings had.] This order is made without prejudice to proceedings already had, except as aforesaid, and except that (stating particulars].
[Or thus:15] ORDERED, further, that this order shall not affect the complaint of the plaintiffs, nor the answers and amended answers of the defendants, but the same shall stand as they are; neither shall it affect the depositions already taken in this action; but the same may be read upon the trial of this action against the defendants, and each of them, and against the said F. M., as such receiver, with like effect as though the same had been taken after the answer of the said F. M. as such receiver, had been served; and this order is made upon such condition. 16
Enter: [signature of judge by initials of name and title.]
14 Terms cannot be imposed where the application is made under Code Civ. Pro.. $ 452; Uhlfelder v. Tamsen, 15 App. Div. 436, 44 N. Y. Supp. 484, 4 Anno. Cas. 194. Unless the applicant has been negligent or dilatory in applying, in which event he may be required to pay to plaintiff any additional expense caused. Wall . Beach, 20 App. Div. 480, 47 N. Y. Supp. 33.
15 See Form 1172, p. 1481, note 67, and Kreescher v. Haven, 23 Wklv. Dig. 66; Matter of N. Y., Lacka. wanna & W. R. Co., 26 Hun, 194.
16 From the order as settled in Honegger r. Wettstein, 47 N. Y. Super. Ct. 125, 129, which however was reversed in 94 N. Y. 252, 13 Abb. N. C. 393, on the ground that the receiver was not entitled to come in at all.
FORM No. 1213. Affidavit to move that attorney bringing ejectment produce authority.1 [Title of court and action.] [Venue.]
Y. Z., being duly sworn, says:
I. That he is the defendant above-named (or otherwise state relation to the cause, and reason why party does not make it].
II. That this action is ejectment to recover premises known as No. , in the city of , county of
; that defendant has been served with summons (and complaint] herein, but has not answered, and his time to answer extends to the day of
, 19 .
III. No evidence of the authority of plaintiff's authority to commence this action has been served on deponent, nor on his attorney, as he is informed by said attorney and verily believes; that on or about the day of , 19 , a notice to produce evidence of his authority was duly served upon said plaintiff's attorney, as appears by the annexed affidavit of M. N.?
IV. [If an order to show cause is asked:] That no previous application (etc. See p. 1172.] [Jurat.]
[Signature.] [Move, on notice, either before court or before a judge of the court. Form 815, p. 1171.]
FORM No. 1214. Order staying ejectment till attorney produces authority.3 [Title and recitals as in Form 819 or 820, p. 1174.]
ORDERED, that plaintiff's attorney produce to me [or, to this court) at on the day of
, 19 , at
1 For form of authority, proof and notice, see Vol. I, pp. 512, 513.
Verification of the complaint by the plaintiff is sufficient authority. Graham 1. Andrews, 11 Misc. 649, 32 N. Y. Supp. 795. Partition action dismissed for want of proper au thority. Timpson v. Mock, 105 App. Div. 299, 94 N. Y. Supp. 664.
2 It is better to request production of authority before moving. See Goodness v. Met. St. Ry. Co., 27 Misc. 11, 57 N. Y. Supp. 100.
3 Turner v. Davis, 2 Den. 187, 2 Howard's Pr. 86; Harris 0. Mason, 10 Wend. 568; N. Y. Code Civ. Pro., $ 1513.
o'clock M. [or, produce and file with the clerk of this court on or before the day of , 19 , and within the same period serve a copy thereof on defendant's attorney)," duly verified written evidence of his authority to commence this action; and until such production thereof all proceedings herein on plaintiff's part be and they are hereby stayed.
[Authentication as in Form 818, p. 1173, of this volume.]
FORM No. 1215. Consent to substitution of another attorney. [Title of court and cause; or underwrite upon the proposed
order.] We hereby consent that A. T., Esq., of , be substituted in place of , as attorney for the [or, a] defendant [or, plaintiff — or, petitioner) in this cause and that the foregoing order be forthwith entered [or, that an order of substitution may be entered without notice). [Date.]
[Signatures of attorney and of client.] [Acknowledgment by client as in Form 822, p. 1176, or proof of
execution as in Form 6, Volume I, p. 5.]
FORM No. 1216.
Order of substitution of attorneys.5 [Entitle as a court order or a judge's order, p. 1174.]
On reading and filing the annexed consent of [name of attorney displaced and of client], and on motion of A. T. for , ORDERED, that A. T., of , be and he is hereby substituted as the attorney of the plaintiff [or, defendant — or, petitioner) in the above entitled cause in place of [name.]
4 From Stewart v. Hilton, 27 Misc. 239, 58 N. Y. Supp. 415; Stewart 1. Butler, 27 Misc. 708, 59 N. Y. Supp.
5 An order of court or a judge of the court is necessary to name a new. attorney on the record (N. Y. Gen. Rules No. 10), if the change be made before judgment (Vol. I, p. 386).
The rule is the same on an appeal to the Appellate Division (Pensat. Pensa, 3 Misc. 417, 23 N. Y. Supp. 186; Shuler v. Maxwell, 38 Hun, 240), but a party may retain an
other attorney on an appeal to the Court of Appeals, without an order of substitution. Magnolia Metal Co. 1. Sterlingworth Ry. Co., 37 App. Div. 366, 56 N. Y. Supp. 16.
This order must be founded on notice, or order to show cause, or upon consent. Such consent should be signed by the party as well as the attorney. N. Y. Gen. Rules No. 10; Buckley v. Buckley, 18 N. Y. Supp. 607. Otherwise, apart from the rule. Ellis v. Heptinstati, 8 W. Va. 388.
[If conditions are imposed, see Forms below.] [Serve copy order, with notice of entry.]?
STATEMENTS OF CONDITIONS AND OTHER DIRECTIONS SUITABLE
TO INSERT IN AN ORDER OF SUBSTITUTION.
FORM No. 1217.
Condition of paying displaced attorney.8 [Insert in last Form:] — upon condition that said [client, or substituted attorney), within days after the date of this order, pay, or cause to be paid, to sạid [former attorney], the sum of for [indicate claim to be satisfied thereby.]
FORM No. 1218.
Condition preserving attorney's lien. That the lien of the said [attorney) for his compensation therein under the agreement with the plaintiff therefor, and said agreement, be in no wise impaired by this order, but remain in full force and effect.10
6 If the attorney has abandoned the case, without justifiable reason there. for, his right to compensation is lost, and the client is entitled to an uncou uitional substitution. Cary v. Cary, 97 App. Div. 471, 89 N. Y. Supp. 1061.
But if no misconduct is charged, the substitution should not be granted unconditionally, leaving the attorney to an action for his fees, but his rights shoulu be protected by con ditions inserted in the order granting substitution. Matter of Mitchell, 57 App. Div. 22, 67 N. Y. Supp. 961, 9 Anno. Cas. 224; Yuengling v. Betz, 58 App. Div, 8, 68 N. Y. Supp. 574.
7 Gen. Rule No. 10 requires cause to be shown by a client who applies for a substitution. But suincient cause is shown by the client's personal desire to change attorneys, unless the client is a receiver. People t. Bank of Staten Island, 112 App. Div. 791, 99 N. Y. Supp. 486; Johnson t. Ravitch, 113 App. Div. 810.
A contract for a contingent fee is subject to the client's right to end the relation at any time. Johnson v.
Ravitch, supra; Matter of Cable, 114
8 A party has a right to change his attorney without showing cause, notwithstanding the attorney has a lien by special contract. In such case, however, he must pay or secure the attorney as a condition, but only for the value of services rendereu. See Johnson v. Ravitch, 113 App. Div. 810; Matter of Cable, 114 App. Div. 375.
9 Action may be brought to recover the amount directed to be paid in the order for substitution. Fenlon 0. Paillard, 46 Misc. 151, 93 N. Y. Supp. 1101.
Or, execution against personal property may be issued. Kane . Rose, 87 App. Div. 101, 84 N. Y. Supp. 111.
A reference may properly be ordered to take proof as to value of the serve ices rendered. Matter of Cable, 114 App. Div. 375. See Form 1230.
10 From Jeffards v. Brooklyn Heights R. Co., 49 App. Div. 45, 63 N. Y. Supp. 530.