[if there is to be deduction for deficiency,23 add: subject, however, to a deduction and abatement to which the plaintiff is hereby adjudged to be entitled, for the deficiency in the amount of the land agreed to be conveyed; and it is further ordered, that it be referred to R. F., Esq., of counselor at law, to compute and ascertain the amount of such abatement, and the amount of purchase-money remaining due after such deduction, and the interest thereon]. [Or, if a lien or incumbrance is to be paid out of the purchasemoney: that at the time and place aforesaid the plaintiff produce and deliver to the defendant proper evidence of the payment of an incumbrance upon said premises consisting of [describe], or that of said purchase-money the sum of dollars be paid to said referee and he is directed to forthwith pay and discharge said lien.24 3.25 AND IT IS Further adjudgED, that if the plaintiff upon a tender of said conveyance refuse to pay the sum so found due, † the premises hereinbefore described be sold by said referee [or, by the sheriff of the county of at public auction [here proceed with directions for sale,26 and decree over for deficiency; see forms of judgment in foreclosure]. [Or instead of directing a sale, substitute for the above, beginning at the t: the plaintiff be barred of his right to a specific performance of said contract; and that the contract be given up to be cancelled; and that the defendant recover of plaintiff his costs of this action to be taxed.271 66 FORM No. 1893. Against purchaser. [As in preceding Form to the *, substituting " plaintiff" for defendant," and "defendant" for "plaintiff," and continu in place of decreeing a specific performance, should decree a compensa tion in damages. Pitt v. Davison, 12 Abb. Pr. 385. Compare Parkhurst r. Van Cortlandt, 1 Johns. Ch. 273; Stevenson v. Buxton, 8 Abb. Pr. 414, 15 id. 352. 26 Benedict r. Benedict, 85 N. Y. 625, aff'g 9 Wkly. Dig. 123; Price v. Palmer, 23 Hun, 504. 27 See Fitzpatrick v. Dorland, 27 Hun, 291; Adams r. Ash, 46 Hun, 105. Such a judgment cannot be enforced by contempt proceedings, so far as the obligation to pay the purchase money ing:] 2. That if the defendant refuse to receive said deed, the plaintiff file the same with the clerk of this court.28 3. That upon such delivery or filing of said conveyance, the defendant pay to the plaintiff or his attorney dollars, [the residue of] the purchase-money named in the contract set forth in the complaint, with interest from the day of 19 29 and the sum of dollars costs of this action; and that plaintiff have execution therefor. FORM No. 1894. [Judgment establishing lost will,30 after recitals:] It is adjudged, that the plaintiff A. B. is the widow of C. B., deceased, late of the town of , county of and State of on the day of That said C. B. died in 19 . That prior to his death, and in the month of 19 he made and published his last will and testament, which was [in substance] as follows [insert copy, or state substance]. That said will was by the said C. B. declared to be his last will and testament, and was duly subscribed, acknowledged, published and declared in presence of two subscribing witnesses, that said will was the free act of said C. B. while under no restraint, and that he was then of sound mind. is concerned. Kittel v. Stueve, 11 Misc. 279, 24 Civ. Pro. Rep. 223, 32 N. Y. Supp. 272; aff'd, 146 N. Y. 380. 28 Abatement, if any, may be provided for as in preceding Form. If plaintiff has collected rents and profits which should be allowed to defendant, a clause may be inserted directing that "the said referee is also to take an account of the rents and profits of the above-described premises which may have come to the hands of the plaintiff, or any person for his use, and to make all just deductions therefrom, and what shall be found upon such account to be justly allowable to the defendant, shall be deducted from the amount found due for principal and interest of said purchase-money." Where such an account is decreed, the judgment should not be made final until after report. 29 This provision is sanctioned by Lowber v. Mayor, etc., of New York, 5 Abb. Pr. 484, 26 Barb. 262, or a provision may be inserted, that if the purchaser will not accept the conveyance and pay the purchase-money, the premises may, on the vendor's application, be sold to raise such purchasemoney, with the costs, and the purchaser may be ordered to pay any deficiency. Clark v. Hall, 7 Paige, 382. And if a purchaser in possession having obtained a decree for a specific performance, declines to take advantage of it, he may be required to account for rents during his occupancy, without any allowance for his payments upon the contract. Clark v. Hale, Clarke, 349. 30 Bowen v. Idley, 6 Paige, 46; Matter of Roberts, 8 id. 446; Sheridan v. Houghton, 6 Abb. N. C. 234; aff'd, 84 N. Y. 643, except as to costs; N. Y. Code Civ. Pro., § 1862. That said will was in existence and unrevoked at the time of the testator's death, and was seen as late as the last. day of That during the time of the [riots in July last] the said will was lost; and that although careful and diligent search has been made for it, it has not been found, and it is lost or destroyed and caunot be found. That the provisions of the said will were clearly and distinctly proved by two witnesses. And this court doth further adjudge and decree, that the said will is established and proved as a lost will, that an exemplified copy thereof be transmitted to the surrogate of the county of for record in his office, and that [the plaintiff] have and receive letters testamentary thereon from his court in the same manner and with like effect as upon a will proved in that court. FORM No. 1895. Judgment establishing validity of will.31 It is adjudged that the writing produced upon the trial of this action, bearing date the day of 19, and purporting to be his last will and testament, is in truth and in fact the last will and testament [and codicil thereto] of M. N., late of the city of deceased. in the county of It is further adjudged that all the parties to this action, and all persons claiming under them subsequently to the commencement of the said action, be and they are, and each of them is, hereby enjoined from bringing or maintaining any action or proceeding, or from interposing or maintaining a defense in any action or proceeding, based upon a claim that such writing is not the last will and testament of said testator. 31 N. Y. Code Civ. Pro., § 2653a. Even though plaintiff, who is attacking the will, makes default, the defendant may enter an affirmative judgment. Delmar v. Delmar, 65 App. Div. 582, 72 N. Y. Supp. 959. The action is at law, notwithstanding the provision for an injunction. Carolan v. O'Donnell, 105 App. Div. 577, 94 N. Y. Supp. 171. Notice of application for judgment of divorce, on failure to answer, after appearing. [Follow Form 1566, ending with the words, "for the relief demanded in the complaint."] FORM No. 1897. Affidavit to proceedings in divorce to apply for judgment or default or for reference after answer.32 [Title of court and action.] [Venue.] A. T., being duly sworn, says: I. That he is the [managing clerk of] plaintiff's attorney herein. II. That this action is brought for a divorce on account of adultery [or, for a separation or limited divorce on the ground of cruelty, or state other cause-or, to annul a marriage on account of, here designate briefly the ground, and if brought by leave, or if a guardian ad litem was appointed for plaintiff, allege that fact]. III. That the summons herein, and a copy of the complaint [or, the summons and inscriptions thereon, copies of which are hereto annexed] were duly personally served on defendant within this State more than twenty days since, as appears by the annexed affidavit of M. N.33 [or, state service in detail if made by deponent; see Volume I, p. 644]. [Or, if service was by publication, state it as in paragraphs II-IV, Form 1579, on p. 1762, of this volume.] [If summons was served without the complaint, or by publication, add:] The copy of the summons served on defendant [or, as so published or, as so delivered to defendant without the State] contained legibly written or printed upon the face thereof the inscription indicated upon the copy summons hereto annexed, as appears by said affidavit.33a IV. If defendant has not appeared: That said defendant has failed to appear or plead, although his [or, her] time to do so has heretofore fully expired. day of [Or if he has appeared and failed to answer:] That defendant appeared herein on the 19 [and a copy of the complaint was duly served on said defendant on the day of pursuant to demand therefor], but he [or, 19 " 32 N. Y. Code Civ. Pro., §§ 1214, 1774 (applicable to all matrimonial actions). 33 Required by Court Rule No. 72, upon application for reference after issue joined, notwithstanding defendant's appearance by attorney, and service of answer. 33a See Form 365, p. 631 of Vol. I. |