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FORMS. 2038. Affidavit to move to vacate 2043. Notice of motion (or order to judgment, etc.

show cause) to open default, 2039. Notice of motion (or order to

show cause ) upon application 2044. Order thereon.
to vacate judgment.

2045-2056. Statements suitable to in2040. Leave to heir, executor, etc., to

sert in foregoing Form. move against final judgment, 2057. Order vacating judgment of etc.

divorce, etc. 2041. Affidavit to move for leave to 2058. — setting aside judgment at defend, after judgment on

the instance of a subsequent service by publication.

bona fide purchaser or mort2042. ---- to set aside judgment

gagee. against infant, etc.

FORM No. 2038. Affidavit to move to vacate judgment because of non-service of summons.68 [Title of court and action.] [Venue.]

A. C., being duly sworn, says:

I. That she is one of the defendants in the above-entitled action, and the wife of her co-defendant, J. E. C.

67 A motion to vacate a judgment is a motion in the action, and not a special proceeding. Riley v. Ryan, 45 Misc. 151, 91 N. Y. Supp. 952 (reversed on another point, 103 App. Div. 176).

The power of the court to relieve from judgments taken through “mistake, inadvertence, surprise or excusable neglect," is not limited by section 724; but in the exercise of its control over its judgments it may open them upon the application of anyone for sufficient reason and upon clear proof, in the furtherance of justice. Its power to do so does not depend upon any statute, but is in herent, and it is not controlled by the time limitation of one year fixed by the statute. Ladd v. Stevenson, 112 N. Y. 332; Eichner v. Met. St. R. Co., 114 App. Div. 247; Weston v. Cit. Nat. Bank, 88 App. Div. 330, 84 N. Y. Supp. 743; McCloud v. Meehan, 30 Misc. 67, 62 N. Y. Supp. 852. See, also, notes to Form 2043.

In Carlisle r. Barnes, 102 App. Div. 582, 92 N. Y. Supp. 924, the court considered the proceedings upon the trial, upon a motion made to relieve from a judgment upon a verdict, and determined that no excusable neglect was shown. But the more regular practice in reviewing the proceedings at the trial is by appeal.

The negligence, ignorance or fraud of the attorney for the defeated party may be made the ground of relief from the judgment by motion in the action, but cannot uphold an independent action to vacate the judgment unless collusion between the attorney and the adversary be also shown. Reich r. Cochran, 105 App. Div. 542, 94 N. Y. Supp. 404; Gideon v. Dwyer, 17 Misc. 233, 40 N. Y. Supp. 1053; aff'd, 7 App. Div. 608.

68 Sustained by White 1. Coulter, 59 N. Y. 629. Three corroborating affidavits were annexed, one of them being made by the process server.

A motion to vacate because of non

, 19 me

day of which he, am

II. That she has been informed that one C. E. B. heretofore, and on the day of , 19 , made an affidavit in the above action, in which he, among other things, stated that on the said day of , 19 , he served a copy of the summons in the above action, together with a notice of the object of the action, on this defendant, at , in the county of aforesaid. That judgment against deponent in this action was entered on the day of , 19 , on said affidavit.

III. Deponent further says, that said affidavit of C. E. B., so far as it affects this deponent, is false and untrue in each and every particular; that no summons or any other paper, nor any process of whatsoever kind or description in the above action, was ever served on this deponent by said B., or by any other. person or persons whomsoever.

IV. That since the entry of the judgment in the above action, this deponent has been informed and verily believes that the said summons and notice of object of action was served upon a servant in the employ of this deponent, instead of being served upon this deponent herself. [Jurat.]


FORM No. 2039. Notice of motion (or order to show cause) upon application to vacate

judgment. [As in Forms 815, p. 1171, or 818, p. 1173, of this volume, stating as relief sought:] vacating and setting aside the judgment entered herein on the day of ,19 , [if on the ground of irregularity, state it particularly ] 69 that the execution issued thereon to the sheriff of the county of be also vacated and any property taken thereunder be restored to defendant [etc., and for such other relief — asking costs if the judgment was entered improperly.]

service of summons is not based upon an irregularity, but is aimed at the validity of the judgment, and may be made at any time. Meurer v. Berlin, 80 App. Div. 294, 80 N. Y. Supp. 240.

In case of a justice's or municipal court judgment, the question may also be presented upon an appeal. Mears r. No. Am. Brewing Co., 113 App. Div. 41.

If defendant swears, without contradiction, to having made due ser

vice of his answer by mail, a judgment entered upon the ground of his failure to plead should be opened without terms. Auto Lighter Co. v. Wicks, 114 App. Div. 110.

69 Failure to include in the judg. ment-roll the papers required by statute is an irregularity. "Gerity v. Seeger, etc., Co., 163 N. Y. 119. If no proper decision, directing judgment, is made by the court, after trial without a jury, a vacatur of judgment may be had upon motion. Dobbs v. Brinkerhoff, 98 App. Div. 258, 90 N. Y. Supp.: 480.

FORM No. 2040. Leave to heir, executor, etc., to move against a final judgment for error in

fact.70 [For proper allegations as to death or disability of party, see Forms in Chapter XI. For order, see p. 2084.]

FORM No. 2041. Affidavit to move for leave to defend, after judgment, on service by

publication.71 [Title of court and action.] [Venue.]

11. B., being duly sworn, says:
I. That he is the defendant in the above-entitled action.

II. That he never was served with any papers in this action at the commencement thereof, nor at any time since. III. That he first learned of the existence of the action on the

day of , 19 , before which time judgment had been entered against this defendant for [state character] and imme diately thereupon he consulted counsel as to the best manner of making defense therein (or otherwise state in what mode the proceedings were first brought to his notice, and his prompt action Thereon), and deponent has prepared for service the annexed and duly verified answer.

IV. That all the allegations in the complaint with reference to [acts of adultery] by deponent are untrue; and that had deponent been advised of said action, he would at once have taken steps to defend it.

[In divorce, may add as bearing on alimony:] V. That deponent has no means or property whatever, either real or personal, and is not in any business; but on the contrary, in consequence of the acts of plaintiff, deponent has expended upon her and for her all the means and property he had; and deponent is now living with and dependent upon his relatives for support.

70 N. Y. Code Civ. Pro., $ 785.

71 From Brown v. Brown, 58 N. Y. 609, modified by alleging ignorance of the action till after judgment; see 2 Hun, 677; and by referring to an

swer annexed. See Johnson r. Lind-
say, 14 Cent. Law Jour. 393; Merriam
v. Gordon, 22 N. W. Rep. 563; Pope
v. Pollock, 15 Wkly. Law Bul. 347.

For the New York statutes, see
N. Y. Code Civ. Pro., & 445; Duebe F.
Voisin, 18 Abb. N. C. 358.

[Annex proposed answer, and if not duly verified according to § 524, or privileged (see 21 Abb. N. C., 211), allege positively in the affidavit its truth.]72 [Jurat.]

[Signature.] FORM No. 2042. Affidavit to move to set aside judgment against infant without appointment

of guardian ad litem.73

W. N. C., being duly sworn, says:

I. That he is plaintiff [or, defendant — or, one of the defendants] herein.

II. That this action was duly commenced on or about 19 , C. P. S., Esq., appearing as attorney for plaintiff.

III. That the action was brought [state nature, as thus:] on a promissory note alleged to have been made by the defendants as copartners.

IV. That on , 19 , judgment for $ was entered [by default] in the office of the clerk of this court against said defendants. *

V. That deponent was born on the day of , 19 , and at the times aforesaid, and up to 19, this defendant was an infant, and no guardian ad litem was appointed or appeared in said action for him.

[VI. That deponent has fully and fairly stated the case to J. S., Esq., his counsel, who resides at No. , street, in the city of , and that he has a good and substantial defense on the merits to the action, as he is advised by said counsel, after such statement, and verily believes.]"4 [Jurat.]

72 If the motion is made within the time limited by Code Civ. Pro., & 445, it is not necessary to show any irregu. larity or defect in the plaintiff's proceedings. Marvin v. Brandy, 56 Hun, 242, 9 N. Y. Supp. 593.

73 Upon the allegations of this affidavit it was held error to refuse to vacate the judgment, in Peck v. Coler, 20 Hun, 534; and see Byrnes v. Byrnes, 109 App. Div. 535, 96 N. Y. Supp. 306; McMurray v. McMurray, 9 Abb. Pr. (N. S.) 315, 323.

The motion may be made within two years from entry of judgment (or within one year after reaching majority if the two years have expired), since this is not an irregularity merely, but an “error of fact not arising upon the trial.” Byrnes v. Byrnes, supra.

If the motion is made in time, there is nothing for the court to do but to grant it. Id.

[Signature.] FORM No. 2043. Notice of motion (or order to show cause75) to open default, inquest or

dismissal.75a [Move the court; see Forms 815, 818, pp. 1171, 1173, of this volume, asking an order:] directing that the default (or, inquest — or, dismissal of complaint]taken herein on the day of

19 , be opened (and the judgment thereon, if

74 An oath to merits is never essen. tial when (as in above case) the de. fendant is entitled to the racatur as matter of right. Am. Audit Co. v. Indust. Fed., 84 Anp. Div. 304, 82 N. Y. Supp. 642. Or where the answer is verified, and includes affirmative defenses. See, also, note 79 to next Form.

75 If an order to show cause is granted by the court or a judge thereof, direction as to mode of serv. ing a person who cannot be found may be inserted. N. Y. Code Civ. Pro., & 1289.

As to the necessity of personal service and on whom, and the mode of making it, see 88 1286-1289.

If the judgment has been assigned, give notice to the assignee, if known. Robinson v. Am. Chem. Co., 9 Civ. Pro. Rep. (Browne) 78.

On moving to open a judgment which established the title to real property, if it be desired to prevent the successful party in the judgment from conveying meanwhile, file the motion papers, and give personal no tice to the party having apparent power to convey, so as to be able to invoke the doctrine of lis pendens.

See Scudder v. Sargent, 15 Nebr. 102.

75a If judgment has been entered, observe that the statute prescribes a limit of one year, from the filing of the roll on final judgment, in which to move for irregularity. Cook r. Dickerson, 1 Duer, 679; N. Y. Code Civ. Pro., $ 1282. But see note 67 at beginning of this article, p. 2042.

And one year from notice of judg. ment, as the limit for moving for relief in case of mistake, inadvertence, surprise, or excusable neglect. § 724;

Jex v, Jacob, 7 Abb. N. C. 452, 460. Two years, if the notice of judgment is given by mail. Atkinson o. Abraham, 78 App. Div. 498, 79 N. Y. Supp. 680.

Laches may result in denial of a motion made within that time. Orleans County Nat. Bank 1. Spencer, 19 Hun, 569.

And the statute prescribes two years as the limit for a motion founded on error in fact not arising on the trial. N. Y. Code Civ. Pro., $ 1292

But these restrictions do not take away the equitable control of the court over its own judgments. See note 67 at beginning of this article, p. 2042; Brown c. Brown, 58 N. Y. 609; S. P., 78 N. Y. 362; Kiefer r. Grand Trunk Ry. Co., 8 N. Y. Supp. 230, 28 St. Rep. 478; appeal disinissed, 121 N. Y. 712.

If there has been delay in moving, the affidavit should disclose any er cuse that may exist. Wygant r. Brown, 7 N. Y. Supp. 490. See Mar. vin v. Brandy, 56 Hun, 242, 9 X. Y. Supp. 593.

76 The affidavit upon the application to open a calendar default should show excuse therefor, and is not to be opened as a matter of course, on terms. Iron Clad Mfg. Co. r. Steffen, 114 App. Div. 792. And if upon affidavits showing the same grounds, the justice at Trial Term has refused an adjournment, an appeal should be taken from his order, rather than a motion made at Special Term to open the default. Herbert Land Co. v. Lorenzen, 113 App. Div, 802. Compare, contra, Marchesini v. Scaccianoce, 110 App. Div. 130.

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