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tuting for the italic clause between the ¶ and the ‡ the following:] vacating and setting aside the satisfaction-piece of the judgment for which had been entered herein the

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day of in favor of the plaintiff and against the defendant, which satisfaction-piece purports to have been executed the day

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court on the isfaction of judgment to the extent of $ thereon from the [or if an order to show cause is asked: and why an order should not be made] for the enforcement of his lien upon and interest in said judgment to the amount aforesaid and the collection of the same by execution to be issued thereon [and for such other relief, etc.].

[Date.]

[Signature and office address of],
Attorney for

[Address to the client and to

the attorney for the adverse

party.]

FORM No. 1230.

Order on petition of client, or attorney, to determine dispute as to compensation between attorney and client, and ordering reference.26

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

ORDERED, that the said motion to determine the lien of the plaintiff's attorney herein be, and the same is hereby granted [and it appearing to the satisfaction of the court, from the

pation, to fix and enforce his lien. Fisher-Hansen v. Brooklyn Heights Ry. Co., 173 N. Y. 492. The client is a necessary party. Oishei v. Penn. R. R. Co., 101 App. Div. 473, 91 N. Y. Supp. 1034.

If plaintiff's attorney seeks an order permitting the continuance of the action, to determine and enforce his lien, he must disclose the amount as claimed by him and establish that his client is unable or unwilling to pay him. Smith v. Acker Process Co., 102 App. Div. 170, 92 N. Y. Supp. 351. So, if he seeks to enforce his lien by an execution upon the judgment obtained and satisfied by the client. Gurley v. Gruenstein, 44 Misc. 268, 89 N. Y. Supp. 887; Bollen v. Schoenwirt, 30 Misc. 224, 63 N. Y. Supp. 311.

If the amount to which the attorney is entitled is in dispute, the motion for leave to issue execution will be denied, with leave to renew after the amount due the attorney is determined, and it appears that he cannot collect it from the client. Corbit v. Watson, 88 App. Div. 467, 85 N. Y. Supp. 125.

26 Under Code Civ. Pro., § 66, as amended in 1899, either the client or the attorney may petition the court to determine and enforce the lien, and the court may either try the question, or send it to a referee. Matter of King, 168 N. Y. 53. This remedy is not exclusive, but concurrent with the jurisdiction of a court of equity to determine and enforce liens. Fischer-Hansen r. Brooklyn Heights Ry. Co., 173 N. Y. 492. If a

affidavits so presented, that disputes have arisen between the plaintiffs and said E., not only as to the claim or lien of said E. upon the judgment in this action, but as to other matters and things, in which it is claimed by the plaintiffs that said E. has collected and has not accounted for certain moneys of the plaintiffs, it is further ordered, that in the meantime, and until the further order of this court, the sheriff retain in his hands a sum sufficient to pay in full the execution issued by said E. herein,] and that it be referred to W. C. B., Esq., who is hereby appointed referee for that purpose to take proof of the facts and report the same with his opinion as follows:

First. What amount of compensation the said E. is entitled to for his services in this action.

[May continue in a proper case:]

Second. What amount, if any, he is entitled to from the plaintiffs in other matters and proceedings as compensation for his services in such matters and proceedings.

Third. What amount, if any, should be credited to the plaintiffs in such other matters and proceedings and in this action for moneys paid by them to the said E., or for moneys collected by said E. in this action, or in such other matters and proceedings.

Fourth. To report the amount of the lien, if any, upon the judgment in this action of the said E. for his services in this action, and for his services in such other matters and proceedings, after crediting the plaintiffs with all sums to which they are entitled to credit.

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

reference is ordered, it should be merely to take evidence and report, not to hear and determine. Matter of Ney Co., 114 App. Div. 467.

Reference improper where facts are in small compass and not complicated. Weiss v. Schleimer, 86 App. Div. 611, 83 N. Y. Supp. 234.

It is no objection that the amount

allowed the attorney must be based upon a quantum meruit. Thomasson . Latourette, 63 App. Div. 408, 71 N. Y. Supp. 559.

It is improper to require the client to give an undertaking to pay the expenses of the reference. Matter of Ney Co., 114 App. Div. 467.

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1. General principles.] To justify the court in ordering the consolidation of two or more actions, it is not sufficient to show that they are between the same parties, and that the causes of action are such as may be joined in one complaint; but in order to call into operation the discretion of the court in favor of the motion, the defendant must go further and show either (1) that no defense is intended to be interposed, or (2) that the questions which will arise, or the issues which have arisen, are substantially the same in all the actions.

FORM No. 1231.

Affidavit to obtain consolidation.27

[Give the title of the several causes, one under the other, naming first the one in the Supreme Court, if any of them are pending in other courts.]28

[Venue.]

Y. Z., being duly sworn, says:

I. That he is the [defendant-or, one of the defendantsor, president - or other appropriate officer- of the corporation

27 The statutory provisions (N. Y. Code Civ. Pro., §§ 817-819) give the only authority to the court to order consolidation. Mayer v. Coffin, 90 N. Y. 312; Am. Groc. Co. v. Flint, 5 App. Div. 263, 39 N. Y. Supp. 153. Either party may apply. Briggs v. Gaunt, 2 Abb. Pr. 77, 11 N. Y. Super. 664.

For cases in which consolidation may be ordered, see 58 Am. Dec.

508, n. Where consolidation may not be ordered, because the parties in the several actions are not identical, a stay of proceedings may be a proper remedy. See Am. Groc. Co. v. Flint, supra; Isear v. Daynes, 1 App. Div. 557, 37 N. Y. Supp. 474.

28 See Vol. I, p. 84. If the actions are pending in the Supreme Court in different districts, move in the district where first action was begun.

defendant; or, if otherwise, state relation to cause, and reason why party does not make the affidavit] in all the above entitled actions [which are respectively pending in the courts above named; if the places of trial in the Supreme Court are different, state what they are29]; and all the parties are the same in each action.

II. That each of said actions is upon a promissory note alleged to have been made by the defendant [or otherwise show the nature of the causes of action, and that they are such as may be joined in the same action,30 and, if it be the case, that they all accrued before the first action was brought].31

III. That the defendant does not intend to interpose any defense to said actions.

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Or, That the defense is [or, the defenses are] wholly the same in all these actions, as appears from the respective pleadings therein [or, if all the actions are not at issue,33 state the facts concisely, as thus that the notes were obtained by the plaintiff at one time by fraud, in falsely representing to defendant [etc.]; and deponent is advised and believes the questions which will arise and are to be tried are substantially the same in all of said actions.34

Not, however, if second action is pending in First District. Dupignac v. Same, 8 N. Y. St. Rep. 900, 12 Civ. Pro. Rep. 351; Same v. Same, 44 Hun, 45.

29 Mayor v. Coffin, 90 N. Y. 312; S. C. as Mayor v. Mayor, 11 Abb. N. C. 367, rev'g 27 Hun, 610.

30 Mayor v. Coffin (above cited). Legal and equitable actions may be consolidated. Wooster v. Case, 12

N. Y. Supp. 769, 34 St. Rep. 577. The separate actions for injury to property and to person from the same negligent act (170 N. Y. 40) may be consolidated. Rosenberg v. Stat. Isl. Ry. Co., 14 N. Y. Supp. 476, 38 St. Rep. 106; McAndrew v. Lake Shore, etc., R. R. Co., 70 Hun, 46, 23 N. Y. Supp. 1074.

31 Pierce v. Lyon, 3 Hill, 450. But this is not essential. Carter v. Sally, 28 Abb. N. C. 130, 19 N. Y. Supp. 244; Wilkinson v. Johnson, 4 Hill, 46.

It only aids on the question of delay. Dunning v. Bank of Auburn, 19 Wend. 23.

32 This is necessary; an allegation of identity is not enough. Dunn . Mason, 7 Hill, 154; Crone v. Koehler, 6 Abb. Pr. 328, n.

33 The motion may best be delayed until after issue joined. Perkins v. Merch. Lith. Co., 21 Misc. 516; Boyle v. Stat. Isl. Land Co., 87 Hun, 233, 33 N. Y. Supp. 836.

34 The fact that the issues are not the same is a strong reason for deny. ing the application. Woodward r. Frost, 19 Wkly. Dig. 125.

The fact that defendant asserts a counterclaim arising out of the same contract alleged in one of the actions, and large enough to offset the amounts claimed in both actions, held ground for consolidation. Perkins v. Merch. Lith. Co., 21 Misc. 516, 47 N. Y. Supp. 712.

35

IV. [State the condition of the causes.3 See Forms 816 and 1063. And if an order to show cause is asked, state as to prerious application. See p. 1172.]

[V. May add as bearing upon costs of motion: That the plaintiff's attorney has refused to consent to the consolidation of these actions upon the request of the defendant's attorney made since issue was joined in all said causes.]

[Jurat.]

FORM No. 1232.

[Signature.]

Affidavit to consolidate actions brought to foreclose mechanics' liens.36

[Title of first action brought.]37

A. B., being duly sworn, says: that he is plaintiff [or, one of the defendants] in the above entitled action [or in another pending action to foreclose a lien on the same property, describing the action.]

[Describe the various pending actions to foreclose liens on same property, showing that they are at issue, and no trials had or begun in any.]38

FORM No. 1233.

Removal from another court, and consolidation.39

[Adapt from Form 1231, and F'orms 1551, etc., post.]

FORM No. 1234.

Notice of motion to consolidate, or to remove and consolidate.40

[Title as in Form 1231.]

Please take notice, that upon the annexed affidavit of Y. Z., verified on the day of

35 If the causes are called for trial before motion made, it will be denied for laches. See Eleventh Ward Bank r. Hay, 8 Daly, 328; aff'd, 73 N. Y. 609.

36 Under Code Civ. Pro., § 3401, giving to any party in any of the actions a right to move.

37 The motion should be made in the court (of record) in which the first action was brought. § 3401.

38 The motion is too late, after one of the actions has been in part tried. Eckenroth v. Egan, 20 Misc. 508, 46 N. Y. Supp. 666.

30 N. Y. Code Civ. Pro., § 818; Soloman v. Belden, 12 Abb. N. C. 58;

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Dupignac v. Van Buskirk, 18 id. 204; aff'd, 44 Hun, 45.

The City Court of New York has power to remove an action from the Municipal Court (Curley v. Schaefer Brewing Co., 35 Misc. 131, 71 N. Y. Supp. 318), but the combined amount claimed in the consolidated action must not exceed $2,000. Gillin v. Canary, 19 Misc. 594, 44 N. Y. Supp. 313. Nor should a consolidation be permitted if it would affect the remedy on a removal bond. Gray Lith. Co. v. Schulman, 84 N. Y. Supp. 503.

40 Move the court. Motion should not be noticed till after issue unless

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