entered, and all proceedings founded thereon - or if needed, all subsequent proceedings on the part of in this action],

be vacated and set aside [as to the defendant Y. Z.]

[If leave to plead or amend is asked, may add:] and the said defendant be permitted to serve, as an answer to the complaint herein, the answer [or, amendedor, supplemental answer] annexed to said affidavit, with the same effect in every respect as if said defendant had served the same within the time allowed by law."

[If cause is in readiness for trial, may substitute for last clause:] and that. the cause be restored to the calendar.

[If restitution is asked, add:] And that the property taken and moneys levied on thereunder be restored to the defendant.

[If on the ground of irregularity, add:] with costs, upon the grounds among others that said default [or, inquest] was irregularly taken in this; [specifying each irregularity"].

[If not on grounds of irregularity, nor as matter of right, substitute for last clause:] upon such terms as may be just [in either case add: and for such other - etc.]79

[If stay of proceedings is desired, add, in order to show cause:] And meantime and until the hearing and determination of this application, and the entry of an order thereon, let all proceedings on the part of the plaintiff [and of the sheriff of the county of under said execution] be stayed.

FORM No. 2044.

Order granting or denying motion to open default, inquest, etc.80 [Title (court order) and recitals; see Form 820, p. 1174.]

ORDERED, that the said motion be and the same is hereby in all respects denied, with dollars costs [or, be and the

77 The motion will be denied if the proposed pleading is not submitted. Schumpp v. Inter. St. Ry. Co., 81 App. Div. 576, 81 N. Y. Supp. 366. If defendant shows that he has made due service by mail, the default should be opened without terms. Auto. Lighter Co. v. Wicks, 114 App. Div. 110.

78 Notice of motion, or order to show cause, must, under the New York rule, specify the irregularity relied on. § 1282; Lewis v. Graham, 16 Abb. Pr. 126.

For other authorities, see p. 122 of Vol. I.

79 It is not necessary that a party, moving to open default after issue joined, and showing a meritorious excuse for default, annex affidavits in corroboration of the allegations of his pleading. Kilts v. Neahr, 101 App. Div. 317, 91 N. Y. Supp. 945.

But the affidavit must show a reasonable excuse for the default (see note 76, supra), and (unless a meritorious defense is set up in a verified answer) an affidavit of merits must be submitted. Clevs v. Peper. 112 App. Div. 430, 98 N. Y. Supp. 404.

80 The Special Term may properly open a default, notwithstanding upon

*

same is hereby granted, and the said judgment - describing it — is hereby set aside, or, and the default — or, inquest opened, and the judgment entered thereon on the

day of

and all proceedings founded thereon, are vacated -as to the defendant Y. Z., naming which, if not all the defendants, and said defendant let in to defend the action — or, to serve his proposed answer herein. For other clauses, see Forms 2045-2052 (below)].

[If terms are imposed, add:] This order is made upon condition that [stating it as in Forms 2051-2055 (below), and add: Ordered furthER, that in default of compliance with any of the terms of this order, the defendant's motion be denied, with ten dollars costs to plaintiff].

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

FORMS NOS. 2045-2056.- STATEMENTS SUITABLE TO BE INSERTED IN FOREGOING FORM.

FORM No. 2045.

Vacating judgment for irregular taxation of costs.81

That the bill of costs filed in the judgment-roll herein, on

be stricken from the roll, and the judgment for the costs thus irregularly taxed and irregularly entered in the judgmentroll, be vacated and set aside, with dollars costs, without prejudice to a regular application to tax the costs of the action, and to enter a judgment for the amount of the costs upon such retaxation.

FORM No. 2046.

If mode of trial is to be changed.

[State it, as thus:] That the order of reference herein be set aside, and the issues joined herein be tried by a jury.

FORM No. 2047.

Allowing specific additional proofs only.82

That the report herein be sent back to the referee for the purpose [only] of allowing defendant to put in his exhibits and records.

the same facts the Trial Term had refused to allow an adjournment of the trial. Marchesini v. Scaccianoce, 110 App. Div. 130. Contra, Herbert Land Co. v. Lorenzen, 113 App. Div. 802.

81 In Wakefield v. Am. Surety Co. (MS.), it was held by the N. Y. Common Pleas at General Term, that it

was in the discretion of the court, in an action founded on the judgment hereby opened, to refuse to allow a supplemental answer to be put in pleading this as a vacatur. Citing Holyoke v. Adams, 59 N. Y. 233, 237; Wilson v. Palmer, 75 id. 250.

82 From Stephens v. Fox, 83 N. Y. 313, where it was held, even without

FORM No. 2048.

For restitution.

That plaintiff make restitution to defendant of the amount collected by execution upon said judgment, with interest thereon 19 [to be ascertained and de

from the day of

termined by R. F., Esq., of

referee for that purpose].

who is hereby appointed a

FORM No. 2049.

That judgment stand as security.

But said judgment [and the execution issued thereon, and the levy thereunder] to stand as security until the final determination of the action.83

FORM No. 2050.

Opening default without staying collection of judgment.

That the judgment and levy in this action stand as security, and that plaintiff have leave to secure the amount of the judg ment by any proceedings to enforce its collection; and that the defendants have leave to serve their answer within [five] days upon payment of costs of this motion, and stipulating, if the plaintiff so elect, to refer the issues to a referee, to be agreed on, or in case they cannot agree, to be named by the court; the trial to proceed on days' notice from either party. When a trial has been had and a judgment obtained, the defendants may, if the judgment shall be in their favor, apply to the court for further relief.

FORM No. 2051.

Leave to plaintiff to amend or discontinue.

That in case the defendant shall serve an answer herein and set up as a defense to this action the [counterclaim mentioned in his affidavit], then the plaintiff may have leave to amend the summons and complaint as he may be advised [or, to discontinue his action without costs-or, upon payment of costs].

the word "only," that on the rehearing in pursuance of this order, oral evidence of a new defense, offered by defendant to sustain a counterclaim, was properly excluded.

83 As to allowing judgment to stand as security and its effect, see the prac

tice stated in note in 25 Abb. N. C. 53. Even if defendant is successful at the succeeding trial, the first judg ment should not be cancelled pending an appeal by plaintiff from the second judgment. Fuller Buggy Co. v. Cudney, 50 Misc. 49.

FORM No. 2052.

Condition of consent to reference.

That the defendant serve his answer on plaintiff's attorneys within days of the service [or, date] of this order [or, that the proposed answer stand as the answer of the defendant herein]; and that defendant stipulate within days of the service [or, date] of this order to refer the issues herein to J. K., Esq., to hear and determine the same; and that defendant receive days' notice of trial for any day after the

FORM No. 2053.

day of

Consent to reference, and security for fees.

next.

And that the said action, and all the issues therein be, and they hereby are, referred to R. F., Esq., as referee, to hear and determine the same, and that defendant accept, and the referee proceed on, days' notice of hearing, after issue joined, and that defendant execute and deliver to the plaintiff, at the time of serving his answer, a bond, with good and sufficient surety, to be approved by the court, in the penalty of dollars, conditioned for the payment by defendant of the referee's fees in said reference in case judgment be rendered in plaintiff's favor.

FORM No. 2054.

Payment of specified costs.

That the defendant pay to the plaintiff, within ten days after service of a copy of this order and notice of its entry, a trial fee of thirty dollars, a term fee of ten dollars, ten dollars for opposing the motion, and all the disbursements the plaintiff incurred in taking the inquest and entering judgment.

FORM No. 2055.

Security for anticipated judgment.85

On defendants giving a bond to plaintiff within [twenty] days from the entry of this order, with two sufficient sureties, to be approved by the court, and to justify as provided by law in undertakings on appeal, said bond to be in the sum of dollars, conditioned for the payment of any judgment which the plaintiff may eventually recover against the defendants or either of them.

84 As to proper terms, see Siegel v. Frankel, 93 N. Y. Supp. 533; McEwen v. Dimond, 81 App. Div. 626, 81 N. Y. Supp. 365; Goodness v. Met. St. Ry. Co., 49 App. Div. 76, 63 N. Y. Supp. 476; Hyman v. London Assur. Corp., 60 N. Y. Supp. 355.

85 See Bricker v. Train, 86 N. Y. Supp. 292; Glickman v. Loew, 29 App. Div. 479, 51 N. Y. Supp. 1078. The undertaking covers a judgment on appeal. Caponigni v. Cooper, 70 App. Div. 124, 74 N. Y. Supp. 1116.

FORM No. 2056.

Consent that action shall not abate.

On defendant's making and filing herein within [ten] days after entry of this order, a stipulation that this action shall not abate by the death of either party thereto.

FORM No. 2057.

86

Order vacating judgment of divorce, and allowing defendant to defend.87 [Title (court order) and recitals; see Form 820, p. 1174.]

ORDERED, that the judgment heretofore entered in this action be, and the same hereby is in all respects vacated and set aside, and the defendant is allowed to come in and serve his answer, and defend the said action as he may be advised, upon the terms following [and upon payment to plaintiff's attorney of the costs of this action to this time, and

].

[May annex as conditions, the plaintiff consenting:] It is hereby referred to J. W. S., Esq., as sole referee, to take proof of the allegations in the complaint and answer, and report the same to this court, with his opinion thereon, the testimony heretofore taken to stand as testimony in the cause, and the reference to proceed upon two days' notice to the defendant.

The defendant may cross-examine the witnesses heretofore examined by the plaintiff, or any or either of them, before the referee herein named, and if necessary, defendant may apply for a commission to examine such as may be absent from this Stateor other conditions as to trial; see Forms 2051-2056.]

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

FORM No. 2058.

Order setting aside judgment at the instance of a subsequent bona fide purchaser or mortgagee.88

[Title (court order) and recitals; see Form 820, p. 1174.]

A. B., and entered on the

day of

ORDERED, that the judgment [confessed by Y. Z. in favor of 19] be and the same is hereby vacated and set aside as to the said M. N. [the moving party], and as to the real estate hereinafter described,

86 See Cox v. N. Y. C. & H. R. R. Co., 63 N. Y. 414; Sweet v. Met. St. Ry. Co., 18 Misc. 355, 41 N. Y. Supp.

549.

87 A liberal rule should be applied in opening defaults in divorce. Henderson v. Henderson, 83 App. Div.

449, 82 N. Y. Supp. 444. But defendant must show merits, and annex proposed answer. Maguire v. Maguire, 75 App. Div. 534, 78 N. Y. Supp. 312.

88 Sustained by Kendall r. Hodgins, 1 Bosw. 659, 7 Abb. Pr. 309.