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if any] let A. T., an attorney at law, show cause before this court at a Special Term thereof to be held at the county court house [or, the City Hall] in

19

at

o'clock in the

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on the

day of

noon, or as soon thereafter as counsel can be heard, why he should not be directed to pay to the above-named A. B. the sum of

dollars [with interest from the day of , 19, less his legal fees], or, in default of such payment, be punished for contempt; and why such other or further relief should not be granted as may be just.

[And in the meantime and until the order of the court hereon, said A. T. is hereby stayed from further acting as the attorney of said A. B. in the action of A. B. against Y. Z., except that he is directed to give said A. B., or his attorney on this motion, notice of any proceedings taken in said action that come to his knowledge or of which he is given notice meanwhile.] [And may enjoin paying over to others.]

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Service of this order and of the papers annexed shall be sufficient if made on said A. T. personally42 on or before the day of

19

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

14 Abb. Pr. (N. S.) 249; Matter of Mertian, 29 Hun, 459; Baldwin v. Foss, 16 Nebr. 80; 19 N. W. Rep. 496; Bowling Green Sav. Bank v. Todd, 52 N. Y. 489; Matter of Morgan, 99 N. Y. 145; Jefferies v. Laurie, 27 Fed. Rep. 195; S. P., Matter of Silvernail, 45 Hun, 575. It is equally proper to give ordinary notice of motion. On the hearing the court may determine the attorney's claim of compensation. Matter of Knapp, 85 N. Y. 284. Or may order a reference to determine its amount. Gillespie . Mulholland, 12 Misc. 40, 33 N. Y. Supp. 33.

But if there is a substantial dispute between them over compensation, the court will not usually decide without a reference, or other inquiry. Where the value may be readily fixed the court may do so on the papers,

titioner " who verities because the alleged party is not in the State, and who makes all allegations on information and belief. Matter of Curtis, 51 Ann. Div. 434, 64 N. Y. Supn. 691.

submitted. Waterbury v. Eldridge, 5 N. Y. Supp. 324; Taylor Iron, etc., Co. v. Higgins, 20 id. 746.

If the attorney joins in an application to have the court fix the amount of his compensation on the motion. he cannot afterward protest. Matter of Berkstrom, 63 App. Div. 7, 71 N. Y. Supp. 451.

The petitioner must make out a clear case against the attorney. Matter of Tracy, 1 App. Div. 113, 37 N. Y. Supp. 65, aff'd, 149 N. Y. 608; Matter of Hammann, 37 Misc. 417, 75 N. Y. Supp. 775.

Where the attorney is fully responsible, and asserts both an unliquidated claim for services and expenses, and a counterclaim arising upon other services, the client may be relegated to an action. Matter of Pollock, 69 App. Div. 499, 74 N. Y. Supp. 976.

42 Personal service is essential. Matter of Weeks v. Coe, 111 App. Div. 337, 97 N. Y. Supp. 704.

FORM No. 1273.

Order directing attorney to pay over money (as foundation for attachment).43

[After proper recitals.]

ORDERED, that said [attorney] pay to [A. B.], the abovenamed petitioner," within [three] days after the service of this order the sum of dollars, together with ten dollars costs of

this motion.

[Serve certified copy personally upon attorney.]a

FORM No. 1274.

Notice to sheriff or other officer to return a process or mandate.45

[Title of court and cause.]

To M. N., sheriff [or other officer] of the county of

You are hereby required, within ten days after service of this notice, to return [here briefly describe the process] heretofore delivered to you for [service] in this cause, or to show cause at a Special Term of this court, to be held at the county court house [or, City Hall] in the on the

of

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day of 19 at the opening of the court on that day, or as soon thereafter as counsel can be heard, why you should not be punished for a contempt of the court, with costs of such motion. [Date.] [Signature and office address of],

FORM No. 1275.

Attorney for

Affidavit showing duty of sheriff or other officer to make return.46

[Title of court and proceeding.]

[Venue.]

M. N., being sworn, says:

I. That he is the [attorney for the plaintiff] in this action. II. That judgment was perfected and the roll thereof filed in the clerk's office of

county, on the

43 Upon failure to make payment, may apply ex parte, on affidavit showing default, for an order directing that an attachment issue; the proceedings which follow are as shown by Forms 1276-1278. Or, may proceed by order to show cause, upon affidavit showing disobedience of the order. See Matter of Bornemann, 6 App. Div. 524, 39 N. Y. Supp. 686; People er rel. White v. Feenaughty, 51 Misc. 468.

44 Where there was a possible doubt as to the right of the parties

day of

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before the court to receive the amount, the court ordered the money paid into court. Baker v. Brown, 150 N. Y. 567.

44a People ex rel. White v. Feenaughty, 51 Misc. 468.

45 Under N. Y. Code Civ. Pro., § 2270; this is supported by N. Y. Gen. Rule No. 6. S. P., Heyman v. Cunningham, 51 Wisc. 506 (where the proceeding was taken against the. deputy).

46 See Crocker on Sher., 606.

19 for

dollars and

cents, damages and costs, and

a transcript thereof was filed, and the judgment docketed in the clerk's office of 19 as this deponent is informed and believes.

county, on the

day of

III. That execution, in due form of law, was duly issued thereon to the sheriff of said last-mentioned county of by which said sheriff was commanded to collect the said sum of with interest and his fees, and to return such execution to the office of the clerk of county, within sixty days after the receipt thereof by him, the said sheriff; and that the same was delivered to and received by said sheriff for execution on the day of as this deponent is informed and believes [or,

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as appears by the affidavit of O. P., hereto annexed].

IV. That although the time for returning said execution has expired, said execution has not been returned, as appears by the annexed certificate of the clerk of the county of

; that the said judgment has not been paid to the plaintiff, nor has any part thereof, but that the whole remains due and unpaid [if plaintiff is not the deponent, state means of knowledge], and that the said sheriff is in default in not returning the said execution, or in not paying over the said moneys.

V. That on the

day of

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19 deponent served

sheriff of "

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on the above-named county, the notice and affidavit, of which copies are annexed, by delivering copies thereof to him personally [or, if he could not be found, by leaving copies thereof with C. D., a clerk in the office of said sheriff, during the hours in which said office is required by law to be kept open, the said [sheriff] being then absent therefrom].

[If county clerk's certificate of failure to return execution is not presented:]

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19 deponent made

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diligent search in the office of the clerk of the county of in the place where executions are kept therein, and that the execution in this action, directed and delivered to the sheriff of

county, on the

day of

19 cannot be found on said files on such search [or, deponent made inquiry at the office of the clerk of county, for the execution issued county, on the day

in this action to the sheriff of of 19 and returnable to said office, and that this deponent was informed by said clerk-or, by a clerk thereinafter search, that such execution had not been returned to said

office]; and this deponent verily believes that such execution has not been returned to said office.

VII. [If an order to show cause is asked: That no previous application has been made for an order for return herein.] [Jurat.]

[Signature.]

V. COMMITMENT FOR NONPAYMENT OF MONEY DIRECTED BY

ORDER.47

FORM No. 1276.

Affidavit to obtain summary commitment.

[Title of court and cause.]

[Venue.]

A. B., being duly sworn, says:

I. That he is plaintiff in the above-entitled action [or otherwise state relation to the cause, etc.].

48

II. [Allege the making of the order to pay, referring to a certified copy annexed.]

III. [Allege service; see p. 982, of volume I, Form 661.] IV. [Demand by a person duly authorized; see Form 1003, p. 1338.]49

V. That no previous application [etc., as on p. 1172]. [Jurat.]

FORM No. 1277.

Order for summary commitment thereon.50

[Signature.]

[Title of cause.]

At a Special Term [etc., as in
Form 820, p. 1174].

On reading and filing the affidavit of A. B., [the above-named plaintiff], verified the

day of

19 from which this court is satisfied that personal demand has been duly made

47 An interlocutory judgment directing payment of money, based upon breach of contract, cannot be enforced by contempt proceedings. Potter v. Rossiter, 109 App. Div. 35.

48 See N. Y. Code Civ. Pro., § 2268. 49 General Elec. Co. v. Sire, 88 App. Div. 498, 85 N. Y. Supp. 141; People er rel. v. Anthony, 7 App. Div. 132, 40 N. Y. Supp. 279; aff'd, 151 N. Y.

620. Demand may not be necessary under order directing payment by an attorney within specified number of days. People ex rel. v. Feenaughty, 51 Misc. 468.

50 The court may (and usually does) decline to issue a summary commitment under § 2268, granting instead an order to show cause or warrant under § 2269.

by A. B. on Y. Z. for payment of the sum of

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dollars, which

was required of said Y. Z. by an order duly entered herein the day of 19 [being costs personally charged upon him for misconduct as an attorney or, as an officer of this court 1], and that payment thereof has been wrongfully refused [or, neglected]: Now, on motion of A. T., attorney for said A. B., ORDERED, that a warrant issue herein to the sheriff of the county of [or, to the sheriff of any county where said Y. Z. may be found], to commit said Y. Z. to close custody in the county jail of county, until said sum of lars, together with dollars, the costs and expenses of this proceeding, are paid, or until he is discharged according to law. Enter: [signature of judge by initials of name and title.]

FORM No. 1278.

Commitment for contempt on failure to pay money.52

dol

THE PEOPLE OF THE STATE OF NEW YORK, to the sheriff of the county of

WHEREAS, on the

made by the

, greeting:

day of

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19 by an order Court at a Special Term thereof, held at the court house in the county of in an action wherein A. B. was plaintiff and Y. Z. was defendant, it satisfactorily appeared to the court, that, etc., as in recital of order, and thereupon, it was duly ordered that the said Y. Z. be committed to the common jail of said county, there to remain charged with the contempt mentioned in said order, until he should have paid the sum of $ therein, imposed upon him, together with the costs and expenses of the proceedings for such misconduct, amounting in all to the sum of dollars, and that a warrant issue to

carry said order into effect:

Now, THEREFORE, we command you that you take the body of the said Y. Z. and him safely and closely keep in your custody in the common jail of the county of until he shall have

fully paid the sum imposed as aforesaid, to wit, the sum of $ and also the costs and expenses aforesaid, amounting to dollars, or until the said Y. Z. shall be discharged according to law. And you are to return this writ and to make and return our said court a certificate under your hand of the manner in which you shall execute the same.

WITNESS [as in Form 1241].

51 N. Y. Code Civ. Pro., § 15. 52 No commitment is necessary if an order to show cause was granted

and served. See N. Y. Code Civ. Pro., § 2283.

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