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IV. That more than twenty (or in N. Y. City Court, six”] days have elapsed since the service of said (summons and] complaint was made; that the said defendant served its answer [or, demurrer herein) on the day of , 19, but did not serve therewith a copy of an order of a judge directing thai the issues presented by the pleadings be tried.

V. That the answer — or, demurrer — so served was thereupon forth with returned to its attorney, with a notice of the objection thereto indorsed thereon, of which notice a copy is hereto annexed. [Jurat.]

[Signature.] [The judgment entered with the clerk will contain recitals accordingly.]

FORM No. 1564. Stipulation for judgment in case notes given to settle action are not paid. [Tille of court and cause.]

Whereas, this action was begun on the day of 19 , by the service upon the defendant within this State of the summons and complaint, and the defendant has not [appeared or] pleaded thereto and is in default; and

Whereas, the defendant has this day delivered to plaintiff's attorney [four] certain notes made by [M. V., and indorsed by the defendant] for the aggregate sum of dollars, with interest, which said notes mature at different periods according to the terms thereof;

It is hereby stipulated between the parties hereto, that if the said notes shall be paid promptly at the time of maturity thereof, then no judgment shall be entered in this action; but in case any one of said notes shall not be paid at maturity according to its terms, then immediately upon such default in payment the plaintiff shall be at liberty forthwith to enter judgment by default in this action, and to issue execution for the amount remaining unpaid as principal and interest of said notes. [Date.] [Signatures; and if by defendant in person add

his acknowledgment.]

answer. But it will do no harm to show proper service, and thus cover any question of attorney's authority to appear.

5 Schlegel r. Am. Beer, etc., Co., 12 Abb. N. C. 280, 2 Civ. Pro. Rep. 393, 64 How. Pr. 196.

6 The demurrer or answer must be

returned. Tantphoeus r. Harbor &
Sub. Assoc., 96 App. Div. 23, 88 N Y.
Supp. 709, overruling Watertown Nat.
Bank v. Westchester Co. W. Co., 19
Misc. 685, 44 N. Y. Supp. 1101.

7 From Osborn r. Rogers, 112 N. Y. 573.

FORM No. 1565.

Judgment by default entered by the clerk.8 [Title of court and action.']

The summons [if complaint was served at same time, add: and complaint] in this action having been duly personally served on the defendant (or, all of the defendants1'] above named, on the

day of , 19 , and the time for said defendant [s] to appear and plead having fully expired, and said defendant not having [or, none of the said defendants having] appeared or pleaded.

[Or where defendant has appeared:]" This action having been commenced by the issue of a summons [if complaint was issued at same time, add: and complaint], and the defendant Y, Z. [or, all of the defendants] above named having voluntarily appeared herein, on the day of , 19 12 [if complaint was served on demand, add: and having been duly served with a copy of the complaint], and having made default in pleading, * [and due notice of this application having been given him [or, them) ;7 |

[And the damages having been duly assessed at the sum below stated : 13— or in case of a partial payment by defendant,14 and

8 Either the complaint, or the notice specified in $ 419, must be served with the summons, or the defendant must have appeared and defaulted in plead ing, to permit judgment to be thus entered. Code Civ. Pro., § 1212.

Service of the complaint after the service of the summons, and before defendant's appearance, is ineffective. Crouse t. Reichert, 61 Hun, 46, 15 N. Y. Supp. 369, 21 Civ. Pro. Rep. 39.

Sustained by Maples v. Mackey, 89 N. Y. 146 (holding that a recital of due service and default supports the judgment of a court of general jurisdiction, although the proof of service may be defective); and see Pringle t. Woolworth, 90 id. 502. But in a court of limited jurisdiction, the recital in the judgment is without effect. Matter of Scharmann, 49 App. Div. 279, 63 N. Y. Supp. 267.

Abb. N. C. 422; Ford v. Doyle, 37
Cal. 346.

If the variance is not insignificant better apply to the court for leave to amend. Sce Volume I, pp. 623, 717.

10 If there are several it is better to name them or say expressly, “all the defendants," or, all except, etc. If there are more than two defendants a recital that “the defendants” were served does not show so clearly as desirable that all were served.

9 See that defendants' names are correctly stated in the judgment, even though incorrectly stated in the proof of service. See Miller 1. Brenham, 68 N. Y. 83; Miller 1. Stettiner, 7 Bosw. 692; Quivey v. Porter, 37 Cal. 458, 464; Townsend v. Ratcliff, 50 Tex. 148. Compare Smith v. Jackson, 20

11 Christal r. Kelly, 88 N. Y. 285.

12 The appearance should be included in the judgment roll; in casa of appearance, proof of service is not a necessary part of the record of judgment. Smith v. Holmes, 19 N. Y. 271. But if appearance is withdrawn, there must be proof of service. McArthur 1. Lewer, 110 Ind. 526, 7 West. Rep. 521.

13 It is not necessary to recite the fact or mode of assessment before the clerk. Am. Exch. Bank v. Smith, 6 Abb. Pr. 1. But, by N. Y. Code Civ. Pro., $ 1213, either party may require the clerk to reduce it to writing and file it.

14 If partial payment after summons served has reduced the balance

dollars having been paid since action begun] & Now, on motion of A. T., attorney for plaintiff:

IT IS ADJUDGED, that A. B., the plaintiff [if in particular capacity, say:] as receiver [etc., or otherwise), recover of Y. 2. the defendant [if in particular capacity, say: as surviving partner of the firm of etc., or otherwise] the sum of dollars, the amount claimed, and interest,15 and dollars costs and disbursements, amounting in all to dollars.

[If against several jointly indebted on contract, only part of them having been serred,16 may add:] But this judgment can be enforced only against the joint property of all the defendants herein, and the separate property of the said defendants (naming them), who were served as aforesaid. [Date.]

[Signature of clerk.]

II. ON APPLICATION TO THE COURT. A. IN OTHER THAN CASES OF ATTACHMENT AND PUBLICATION, OR DIVORCE,

FORECLOSURE AND PARTITION.

FORM No. 1566. Notice of application to court or judge thereof, for judgment.17 [Title of court and action.]

Please take notice, that the plaintiff will apply to this court, at a trial [or, at a Special] Term 18 to be held at the city hall] [or, will apply to IIon. J. K., one of the justices of this court, at, ctc.) in the city of , in the county of , on the

due below fifty dollars, plaintiff is not entitled to add costs, unless he has reserved the right. Rice v. Childs, 28 Hun, 303.

15 Bullard v. Sherwood, 85 N. Y. 253, rev'g 22 Hun, 462.

16 N. Y. Code Civ. Pro., $ 1932; Long v. Stafford, 103 N. Y. 274, and cases cited.

17 May, since amendment of 1901, be made to a judge, as well as to the court. Code Civ. Pro., § 1215.

Copies of the papers to be submitted upon the application for judg. ment are not required to be served with the notice.

Must be served on any defendant who has duly appeared. See Volume I, pp. 733, 734; \food v. Lambert, 3 Sandf. 724, 1 Code Rep. (V. S.) 214. And on any defendant actually con fined in jail for want of bail, who

has not appeared. N. Y. Code Civ. Pro., $ 799. Eight days' notice is required (N. Y. Code Civ. Pro., $ 1219), except in New York City Court, where two days' suffices. $ 3161. The court or judge has power to shorten the time by an order to show cause. Cit. Sav. Bank v. Bauer, 49 Hun, 238, I N. Y. Supp. 450, 14 Civ. Pro. Rep. 340.

18 In the Supreme Court may apply at any Special Term in the district embracing the county in which the action is triable, or, except in the first district, in an adjoining county; such application may also be made at a Trial Term in the county in which the action is triable. N. Y. Gen Rule No. 26. In New York and Kings counties, the motion may only be made at a Special Term. Id.

day of

, 19 , at o'clock in the noon, or as soon thereafter as counsel may be heard, * for the relief demanded in the complaint [may add, if desired, and for a writ of inquiry directed to the sheriff of the county of to assess the damages of the plaintiff herein — or, for a reference — stating object - or for such other or further relief as may be just].

[Date, signature and address, as in Form 1560.]

FORM No. 1567. Demand by defendant not appearing, of notice of reference or writ of inquiry.19 (Title of court and action.]

Please take notice, that the undersigned demands notice of the execution of any reference, or writ of inquiry, which may be granted upon any application to the court for judgment in this action. [Date.] [Signature and office and post-office address of], De

fendant in person. [Or, signature and office and post-office address of,

Attorney appearing specially for the defendant

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[Or, signature and office and post-office address of,

Agent for the defendant Y. z.] [Address] Tom

Attorney for plaintiff. [May be served at any time before judgment.]

FORM No. 1568. Affidsvit to proceedings, to enter judgment on application to the court

(general Form). [As in Form 1563 to the *.]

II. That this action is brought [if brought by leave,20 say: pursuant to leave duly granted by order of this court — or, of the Court of - entered the day of , of which a copy is hereto annexed ;] [Here state object20a briefly, as thus: to recover the possession of a lot of land in the city of and county of ], and is triable in the county of .21

19 N. Y. Code Civ. Pro., 8 1219.

Notice of application to the court for the order need not be given unless the defendant has appeared generally.

30 See Volume I, p. 542, etc. If plaintiffsues by guardian ad litem, allege appointment. See Volume I, p. 587, etc.

20a The nature of the action is material also in enabling the judge to determine the regularity of the proceedings. In an equity case the court may look into the merits on such an application. Thomson v. Wooster, 1lt U. S. 104.

III and IV. [Allege, or annex and refer to, proof of service and default, as in Form 1562.]

[If defendant has appeared generally, allege service of notice as in Form 1566.]

1. [In action affecting specific real property, allege filing of notice of lis pendens as in Form 1584, post.]

VI. [If application is made ex parte, and for an order preiiminary to judgment, add: That no previous application, etc., as on p. 1172.] [Jurat.]

[Signature.] FORM No. 1569. Order by the court for judgment after computation, or upon its own

assessment.22 At a Special Term [etc., or, a Trial Term

etc., as in Form 820, p. 1174].23 [Title of action.]

[Recitals as in Form 1565, to the t, except that papers upon application must be specified, as: as appears from the annexed affidavit of etc.] and the court having (with the aid of a jury present in court] computed24 the amount [or, having assessed the damages] which the plaintiff is entitled to recover herein [or, having taken an account of the transactions mentioned in the

21 Under N. Y. Gen. Rule No. 26, the application may be made at any Special Term in the district, or, ex cept in the first district, in an adjoining county; also at a Trial Term in the county where the action is triable, except in New York and Kings counties.

22 Or, may be judge's order. Code Civ. Pro., & 1215.

essary, where the complaint charges that defendant received money or property in a fiduciary capacity, and a body execution may properly issue on a judgment entered by the clerk. Richmond Hill S. S. Co. v. Seager, 31 App. Div. 288, 52 N. Y. Supp. 985, 6 Anno. Cas. 65, 27 Civ. Pro. Rep. 395.

For findings and judgment after inquest, see Forms 1697, 1698.

This Form is intended to cover only those cases, where, after defendant's default in pleading, and because of non-service of complaint or notice, with summons, in actions for liquidated damages on contract, application for judgment cannot be made to clerk; or, where, in an action for un liquidated damages on contract, the court is willing to assess the amount. See Code Civ. Pro., $$ 1212-1215. Or, in ejectment, without damages. Sayres r. Miller, 10 Civ. Pro. Rep. 69.

Application to the court is not nec.

23 See notes 17 and 18 to Form 1566.

24 The court or judge has power to assess the damages in actions upon contract, without reference or writ of inquiry, but it is not usual save in simple cases of a liquidated demand. Renner v. Marshall, i Wheat. 215.

The relief must not be more favorable to plaintiff than that demanded in the complaint. Zwickey r. Haney, 63 Wisc. 465, 23 N. W. Rep. 577, N. Y. Code Civ. Pro., $ 1207; Clapp 8. McCabe, 155 N. Y. 525.

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