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FORM No. 1279. Order to show cause (before court) why accused should not be punished for

contempt in not paying pursuant to order or judgment.53

[Name of] Court (or if a court order], At a Special Term [etc.,

as in Form 820, p. 1174]. (Title of cause.]

On reading and filing the affidavit of , , verified the day of

19 [and recite other papers if any; see Form No. 1244], by which it satisfactorily appears to this court (or, to me] that [name] has neglected [or, refused] to obey the order of this court, entered [or, made by me] on the

day of , 19 , and duly personally served on him [requiring said — name] to pay [or otherwise, according to the tenor of the order], and that a personal demand thereof has been made upon said

by said A. B.,55 and that payment thereof has been refused or neglected by said

; and on motion of C. D., attorney for said A. B.:

at

ORDERED, that the said show cause, before this court at a Special Term thereof to be held at the County Court House in the of

on the days of , 19 , o'clock in the

noon, why he should not be punished57 for his alleged offense and contempt, and why said A. B. should not have such other and further relief as may be just, with costs of this motion.

[If short service is directed, Service of this order, and of the papers on which it is granted, shall be sufficient if made upon said [name] personally on or before the day of , 19 .

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

53 N. Y. Code Civ. Pro., & 2268. 54 See McKelsey v. Lewis, 3 Abb. N. C. 61.

55 Demand must be shown to have been made by one authorized to receive. See note 49, p. 1555.

56 At least the regular eight days must be allowed unless the affidavit shows reason for fixing shorter time. Power r. Village of Athens, 19 Hun, 165.

57 Using the word "attached ” here, instead of “punished,” or * committed," is objectionable, be cause attachment does not necessarily

mean anything more than arrested and brought in to answer. But the objection may be waived. People et rei. Tull v. Kenny, 2 Hun, 346.

The English form runs, “ stand committed."

A statute merely authorizing the issue of an attachment to enforce payment of money, is not construed to mean commitment, but a bailable at. tachment to bring up the person, and on its return the question of wrongful refusal, including ine question of abil. ity to pay, are before the court. Morrison v. Lester, 15 Hun, 538.

ARTICLE IV.

DISCONTINUANCE.

1283. Order

continuance

FORMS. 1280. Consent to discontinuance 1283. Order thereon (general Form). (short Form).

1284-1288. Statements of discontinu1281. Order thereon.

ance suitable to be inserted 1282. Notice of motion (or order to

in foregoing Forms.
show cause) for leave to dis-
continue.

1282: Order The Form).

FORM No. 1280.

Consent to discontinuance (short Form). 68 [Title of court and cause.]

It is hereby consented that the above-entitled action be discontinued [if only as against part of the defendants, insert; as against Y, Z.] without costs to either party as against the other, and that an order to that effect may be entered by either party without notice.59 [For special clauses see Forms 1284-1288.] [Date.]

[Signatures.co] [Acknowledgment, when executed by a party.]

58 The court will not usually order a discontinuance without defendant's consent, where defendant has a legal interest in the proceedings — as where he has pleaded a counterclaim. Merchants' Bank v. Schulenberg, 54 Mich. 59; 19 N. W. Rep. 741; Francis v. Edwards, 77 N. Ĉ. 271. Or, where the lapse of time would debar him of a remedy. Bowe v. Knickerbocker Life Ins. Co., 27 Hun, 312. Or, where there has been a decision in defend. ant's favor. Chicago & Alton R. R. Co. v. Union Rolling Mill Co., 109 U. S. 702. Or, where in replevin or ejectment plaintiff has recovered possession and defendant seeks to reclaim it. Wilson v. Wheeler, 6 How. Pr. 49 (replevin); Carleton v. Darcy, 75 N. Y. 375 (ejectment).

Consent of the attorney for a party, even though having a lien on the cause of action, or for his costs, is not essen

tial where the client who consents is responsible and no fraud or collusive settlement is charged by the attorney. See Wetmark v. Perley, 43 Misc. 14, 86 N. Y. Supp. 756, and cases cited.

59 If the discontinuance is on a compromise, it is for defendant's protection to add, “ the cause of action herein having been compromised and settled.”

To settle an action for statute penalty or forfeiture, leave of court is necessary. N. Y. Code Civ. Pro., % 1894.

60 The attorney's power extends to consenting to a discontinuance. Vol. ume I of this work, p. 435. But if the stipulation is relied on as evidence of a settlement to bar a fresh action, the client's signature, or evidence of the attorney's authority, may properly be asked.

FORM No. 1281.
Order of discontinuance on consent.61

At a Special Term [etc., as in

Form No. 820, p. 1174]. [Title of cause.]

On reading and filing the annexed consent, and on motion of A. T., attorney for [plaintiff] :

ORDERED, that this action be and the same hereby is discontinued (as to the defendant Y. Z.] without costs to either party as against the other. [For special clauses see Forms 1284-1288.]

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

FORM No. 1282.
Notice of motion (or order to show cause) for leave to discontinue.62

[Title and recitals according to the case; see Forms 815 and 818, omitting matter in brackets following the t, appropriate only to motion before a judge; and substituting for the clause in italics between the I and the the following:] directing that this action be discontinued [as against the defendant Y. Ž.] without costs [or, upon payment by plaintiff of costs to date — or otherwise; see Forms 1284-1288.]

61 A formal order is not strictly essential, though of course advisable. See Hempy r. Griess, 30 App. Div. 434, 51 N. Y. Supp. 1072; Valentine r. Stevens, 109 App. Div. 285, 96 X. Y. Supp. 299.

The action of a trial judge in marking a case settled is equivalent to a discontinuance. Rogers v. Marcus, 93 App. Div. 552, 87 N. Y. Supp. 941. An entry by the clerk upon the day calendar is of no effect. Rigle r. Wallis Iron Works, 85 Hun, 279, 32 X. Y. Supp. 1011, aff'd, 155 N. Y. 675. Mere notice of withdrawal is a nullity. Trow Printing Co. v. New York Book, etc., Co., 3 N. Y. Supp. 59. 16 Civ. Pro. Rep. 120.

62 Plaintiff in an action at law, when an answer is served which sets up no counterclaim, or any affirma tive defense, may properly obtain an er parte order of discontinuance con

ditioned upon payment of costs. Angier 1. Hager, 45 App. Div. 32, 60 N. Y. Supp. 811. Contra, Morse v. Stockman, 65 Wisc. 36, 26 X. W. Rep. 176, holding notice essential even as against defendants whose demurrer to the complaint for not stating a cause of action against them had been sustained.

Plaintiff may, before formal appearance of defendant, discontinue without costs, for defendant by not formally appearing has not entitled himself to notice. See Vol. I, p. 730, “ DISCONTINUANCE BEFORE APPEABANCE.” Valentine v. Myers Sanitary Depot, 36 Hun, 201. After formal appearance he cannot (Kenna 1. Atlas Steamship Co., 19 Abb. N. C. 265), but may do so after defendant has appeared specially. Straus v. Gilhou, 80 App. Div. 50, 80 N. Y. Supp. 180.

FORM No. 1283. Order discontinuing action on motion (general Form63). [Title (court order) and recitals, according to the case. See

Form 820, p. 1174.] ORDERED, that the above-entitled action be64 and the same is hereby discontinued (as against the defendant Y, Z.] upon payment by plaintiff to the defendant of accrued costs,65 to be taxed upon notice and of ten dollars costs of the motion, such payment to be made within days after service of this order; and in default of such payment the plaintiff's motion to discontinue is hereby denied with $10 costs.66

[For other special clauses see below.] Enter: [signature of judge by initials of name and title.]

63 Ordinarily, unless defendant has a fixed interest, a plaintiff has a right to discontinue (without costs if de fendant has not appeared, and on paying costs if defendant has appeared), and this right is not to be denied because his object is only to commence a fresh proceeding. Matter of Butler, 101 N. Y. 307.

In an equitable action, a discon tinuance may be allowed without pay. ment of costs. See Johnston r. Garside, 24 N. Y. Supp. 243.

In an action at law plaintiff has a right to discontinue as against de fendant's not served and who have not appeared, unless some rights of parties who have appeared would be affected, in which case the court may impose such conditions as may be necessary to protect them. Chapman 0. Wolf, 89 App. Div. 563, 85 Ñ. Y. Supp. 638.

Where plaintiff has brought an action on behalf of himself and others, he may not discontinue as of right if others have joined in the action. Salisbury v. Bing. Pub. Co., 85 Hun, 99, 32 N. Y. Supp. 652.

The right to refuse leave, however, exists in the court, whenever circumstances exist which would make it unjust to defendant (Kruger v. Par. sons, 52 App. Div. 50, 64 N. Y. Supp. 841), or against the public in terest (Winans v. Winans, 124 N. Y. 140), or work a fraud upon one of the attorneys for a party (Nat. Ex. Co. v. Crane, 167 N. Y. 505).

If defendant has pleaded an affirmative defense upon which he asks af. firmative relief, or a counterclaim, the granting of plaintiff's motion is discretionary. Fisburg v. Ramsey, 49 Misc. 216, 97 N. Y. Supp. 359 ; Mat. ter of Losak, 131 N. Y. 624; Walsh r. Walsh, 33 App. Div. 579, 53 N. Y. Supp. 881.

Plaintiff's motion to discontinue in order to enable him to begin orer again in a court wherein he can get a speedier trial, may not be granted even on payment of costs, if defendant has set up a counterclaim. Jans. sen 1. Whitlock, 58 App. Div. 367, 68 N. Y. Supp. 1086.

64 A cross-action should be mentioned if included. Wetmore v. Fiske (R. I., 1886), 5 Atl. Rep. 375.

65 It is usual to require payment of all accrued costs, although there may be cases where reasons appear to the court for imposing lesser terms and it has power to do so. Susman Ľ. Dangler, 95 App. Div. 158, 88 N. Y. Supp. 527. The cases where the plaintiff may properly be allowed to discontinue without costs are mainly: (1) When defendant has been discharged as a bankrupt; (2) defendant's concealment of his infancy; (3) repeal of the statute imposing the penalty after action therefor commenced; and (4) intrusion by mistake of a person as a defendant, who has not been served.

66 An absolute order of discontinuance, with costs to defendant, is un

FORMS Nos. 1284–1288.— STATEMENTS OF DISCONTINUANCE SUIT.

ABLE TO BE INSERTED IN FOREGOING FORM.67

FORM No. 1284.

Vacating judgment.68 - that the judgment entered in this cause on the 19 , for dollars [or, awarding the plaintiff the relief demanded in the complaint], be and the same is hereby vacated and set aside, and that this action be, and the same hereby is discontinued [continuing as in Form 1281 or 1282].

FORM No. 1285.

Providing for attorney's costs. – discontinued, on payment to A. T. (plaintiff's] attorney, of [the sum of dollars, together with] his costs, to be taxed by the clerk of the court; and it is further ordered, that unless said [sum and] costs as taxed be paid within (twenty] days after the service of a copy of this order, that said motion be and the same is hereby denied, with ten dollars costs.89

FORM No. 1286.

Withdrawing papers. And that the papers may be withdrawn from the files by the respective parties or attorneys by whom they were filed. To

FORM No. 1287.71

Stipulating not to sue.
Adapt from p. 268, Form 114, of Volume I.

FORM No. 1288.

Cancelling lis pendens. As on p. 897 of Volume I. authorized upon plaintiff's motion for N. Y. 231, 1 Centr. Rep. 324, 3 N. E. leave. The form of order above given Rep. 177. is proper. Hyde v. Anderson, 112 69 Sustained in Byron v. Durrie, 6 App. Div. 76, 98 N. Y. Supp. 62. Abb. N. C. 135. Compare Wright v.

67 The court has power to impose Wright, 70 N. Y. 96; Nat. Exhib. Co. conditions. See preceding notes; v. Crane, 167 N. Y. 505. Matter of Waverly Waterworks, 85 70 See Volume I, p. 60. Such a N. Y. 478; Carleton . Darcy, 75 clause does not affect the competency N. Y. 375. And may require payment of the papers as evidence, but only of allowance in addition to costs. their possession or accessibility. Robins e. Gould, 1 Abb. N. C. 133. They are not evidence as an ad

es Discontinuance after judgment is judication, even if not withdrawn. allowable, and it implies vacatur of Loeb r. Willis, 100 N. Y. 231. judgment, even without such an ex- 71 If no right of the defendant is press clause. Loeb v. Willis, 100 adversely affected a condition of this

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