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and that the execution issued on said judgment, and all proceedings had under it, be set aside so far as they relate to or affect the said real estate, and that the said real estate is hereby made and declared to be freed and discharged of and from the apparent lien of said judgment, and of and from any and every and all proceedings whatsoever, under and by virtue of the same. The premises above referred to are bounded and described as follows: [description.]
Enter: [signature of judge by initials of name and title.]
FORMS. 2059. Order on petition for further to determine mode of carrying into directions.
effect a judgment for specific relief, 2060. Notice of motion for reference etc.
FORM No. 2059.
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of action.]
This cause coming on regularly to be heard on the petition of the [plaintiff], verified the day of
19, for further directions, upon the foot of the judgment entered herein on the day of , 19 , upon reading and filing the said petition [and designate all other papers relied on; and if order to show cause was taken directing mode of service, mention it and the proof of due service according to it, and recite also the fact of reference had, if any, report and exceptions taken, if any, and the facts established to the satisfaction of the court; also appearances, etc., if any, as usual, and continue] :
IT IS ORDERED AND ADJUDGED (that said exceptions be and the same are hereby overruled and said report be confirmed, and] that [etc., as in a judgment]. And either party to said action nr to this proceeding, and their successors in interest, have leave to apply further on the foot hereof and of said judgment for further directions.
Enter: [signature of judge by initials of name and title.]
49 Apply on affidavit or petition, the latter being more usual where persons not parties to the record are con cerned. Serve personally on those proceeded against, unless they are represented by attorney still acting for them in the cause after judgment. A voluntary general appearance in response to the petition is equivalent to service. If appearance is not made, and personal service within the State impracticable, present the petition to the court, adding affidavit that no pre
vious application has been made, and take an order to show cause, directing mode of service. See Form 1126, and 20 Abb. N. C. 112.
The right to apply ordinarily ap. pertains only to the method of carry. ing out the judgment as already made, and cannot comprehend new issues, or substantial alterations. Duclos v. Benner, 6 N. Y. Supp. 293, 25 St. Rep. 413, 2 Silv. Sup. Ct. 31; Parker i. Linden, 59 Hun, 359, 13 N. Y. Supp. 95.
FURM No. 2060. Notice of motion for reference to determine mode of carrying into effect a
judgment for specific relief (in this case, support).50 [Move the court; see Form 815 or 818, pp. 1171 and 1173, for an order:] that it be referred to some suitable person to [here state object, for instance thus] take proofs of all the facts and circumstances relating to or affecting the right of the defendant W. G. to be allowed his support and maintenance, either at the institution of the defendant [name], or elsewhere, as he may select, so far as the same has not already been adjudicated, and what is a proper amount to be paid to said W. G., if any, for his reasonable support and maintenance under the judgment-roll herein, and under the will of the testator, since the death of the testator, E. L. M., to the time of the report of the referee, and what will be a reasonable and proper amount to pay to said W. G. for his future support and maintenance under said judgment and under said will during his life, if he shall decide to reside elsewhere than in said institution, and that said referee report to this court, the proofs with his opinion as speedily as may be, or for such other [etc.].
90 On a reference to carry into effect a judgment, objections to that judg. ment are not properly to be consid.
ered. Story v. Livingston, 13 Pet. 359, 365.
ASSIGNMENT, SET-OFF, DISCHARGE AND SATISFACTION.
2061. Assignment of judgment.
show cause) to cancel a
debtor in bankruptcy.
2068, Order thereon.
judgment, etc. 2071. Satisfaction of judgment. 2072. Another Form-by corporation. 2073. Acknowledgment of satisfaction
piece by member of firm of attorneys.
FORM No. 2061.
Assignment of judgment.91 THIS INDENTURE, made the day of thousand nine hundred and
between J. S. H., party of the first part, and C. B. M., party of the second part. WHEREAS the said party of the first part, on the day of
, in the vear one thousand nine hundred and recovered a judgment in the [Supreme Court, in the County of New York] against G. W. B., for the sum of dollars :
Now, THIS INDENTURE WITNESSETH, That the said party of the first part, in consideration of [one dollar] to him duly paid, hath sold, and by these presents doth assign, transfer and set over unto the said party of the second part, and his executors, administrators (or if a corporation or trustees: successors] and assigns, the said judgment, and all moneys that may be had or obtained by means thereof, or any proceedings to be had thereupon [and the cause of action whereon the same was recovered]. 92
And the said party of the first part doth hereby constitute and appoint the said party of the second part, and his executors, administrators (or if a corporation or trustees: successors] and assigns, his true and lawful attorneys irrevocable, with power of substitution and revocation, for the use, and at the proper costs
91 Sustained in Beers v. Hendrick son, 45 N. Y. 665.
A written assignment duly authenticated may be filed and noted on the docket, etc., so as to charge purchasers
with notice. N. Y. Code Civ. Pro., $ 1270. Otherwise at common law. Boston Co. r. Pless (Col., 1886), 10 Pac. Rep. 652.
92 See N. Y. Code Civ. Pro., $ 1912.
and charges of the said party of the second part, to ask, demand and receive, and to sue out executions, and take all lawful ways for the recovery of the money due, or to become due, on the said judgment; and on payment, to acknowledge satisfaction or discharge the same; and attorneys one or more under them, for the purpose aforesaid, to make and substitute, and at pleasure to revoke; hereby ratifying and confirming all that said attorneys or substitutes shall lawfully do in the premises. And the said party of the first part doth covenant that there is now due on the said judgment the sum of dollars, 93 and that he will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings thereon, the said party of the second part saving the said party of the first part harmless of and from any costs and charges in the premises.
IN WITNESS WHEREOF, the party of the first part bath here unto set his hand and seal the day and year first above written.
[Signature and seal.] Sealed and delivered in presence of [signature of witness].
[Acknowledgment or proof, see Form 822.]$a
FORM No. 2062. Another, shorter Form, 94 with reservation.95 [Title of court and action.]
Judgment recovered and perfected in county clerk's office, day of ,19 , against the above named for the sum of dollars.
Debt, $ . Costs, $
For and in consideration of one dollar paid, I, [name of judgment creditor] do hereby sell, assign, transfer and set orer unto [naming assignee] all my right, title and interest in and under said judgment (and the cause of action therefor], [saving, re
93 As to implied warranty, see Fur niss v. Ferguson, 15 N. Y. 437, 34 id. 485; Glass v. Read, 2 Dana (Ky.), 168; Ross v. Terry, 63 N. Y. 613; Otis v. Cullum, 92 U. S. 447.
As to stipulating as to priority, see Winton's Appeal, 111 Pa. 387, 3 Atl. Rep. 789, 5 id. 433.
93a One who has assigned is bound to acknowledge. N. Y, Code Civ. Pro., § 1262.
94 From Booth 0. Farmers', etc., Bank, 50 N. Y. 396.
95 Bostwick v. Scott, 40 Hun, 212.