serving and providing, however, that this assignment shall transfer no right or claim against the defendant F., who was an indorser upon the note on which this judgment was obtained, nor affect his liability to said - assignor].

[Date.]

[Acknowledgment.]

[Signature.]

FORM No. 2063.

Assignment by a corporation.

[As in either Form above, adding:]

IN WITNESS WHEREOF, the [naming the corporation] has caused these presents to be signed by its president and secretary, and its corporate seal to be attached, this

[Corporate seal.]

19 .

day of [Signatures of], President.

FORM No. 2064.

Secretary.

Order setting off judgments.96

Court for

[Title (court order) and recitals; see Forms 820 and 1362.] ORDERED, that the judgment recovered by A. B. against Y. Z., in the dollars, be set-off and deducted [with interest thereon to the date of this order] from the judgment recovered by Y. Z. against A. B., in this court for dollars [and the interest due thereon], and that the clerk of this court make the proper correction on the docket of said last-mentioned judgment by reducing said judgment to dollars [to

96 Notice of motion or order to show cause (which will be founded on affidavit) may be adapted from Form 1361.

There is no absolute right of set-off. DeCamp v. Thomson, 159 N. Y. 444. It will not be ordered during pendency of an appeal, upon which security has been given. Id. A set-off will not be ordered which will destroy the attor ney's lien. Agric. Ins. Co. v. Smith, 112 App. Div. 840.

A motion to set-off judgments should be made in the cause in which the judgment is against the moving party (Cooke v. Smith, 7 Hill, 186), because that is the cause in which he desires relief; and the rule is the same, though the judgments be in different courts (id.), he should apply to the court whose process he seeks

to protect himself from by the set-off. If the causes are in the same court, the better practice is to entitle the moving papers in both. Alcott v. Davison, 2 How. Pr. 44 (holding this essential, without sound reason, at least so far as concerns a case where the motion papers, besides being entitled in the cause in which the judgment is against the moving party; also identify distinctly the other causes).

If the causes are in different courts, there is no objection to entitling the motion papers in both, if the body of the notice states in which court the motion will be made. But in either case the title of the cause in which the judgment is against the moving party had better precede the title of the other.

bear interest from this date and that said A. B. pay said Y. Z. ten dollars costs of this motion], and that said Y. Z. have execution for the said sums, amounting together to dollars.

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

FORM No. 2065.

Notice of motion (or order to show cause) to cancel a judgment after discharge of debtor in bankruptcy.

[Move the court, see Forms 815 and 818, pp. 1171, 1173 (serving party or his attorney), for an order; see next Form.]

FORM No. 2066.

Affidavit upon motion to cancel judgment against a discharged bankrupt.97 [Title of courts and cause in which judgment was rendered.] [Venue.]

O. P., being duly sworn, says that he is the attorney for the defendant in the above entitled action.

That judgment was duly entered in this action on the day of , 19, in favor of the plaintiff and against the defendant 98a for the sum of dollars.99 That the cause of action upon which said judgment was rendered [as appears from the judgment-roll herewith exhibited] was [here state character of action so as to show it is not one of the excepted judgments under bankruptcy act.]1

That as appears by the annexed certificate of the clerk of the United States District Court for the District of New York the defendant herein was duly adjudged a bankrupt by said court and discharged from all debts and claims provable under the Acts

97 N. Y. Code Civ. Pro., § 1268. The motion may be made by the present owner of real estate upon which the judgment is an apparent lien. Graber v. Gault, 103 App. Div. 511, 93 N. Y. Supp. 76.

A judgment against a partnership is not discharged by the discharge of one of the partners. Dodge v. Kaufman, 46 Misc. 248, 91 N. Y. Supp. 727.

98 Or, if judgment has been rendered in a court not of record, the court of which it has become a judgment by docketing it or filing a transcript. Code Civ. Pro., § 1268.

98a See, as to judgment against defendant as a copartner, Berry Bros. v. Sheehan, 115 App. Div. 488.

99 The Code section is applicable only to judgments entered before or

in actions which were at issue before the discharge in bankruptcy. Howe v. Noyes, 47 Misc. 338, 93 N. Y. Supp. 476; Hussey r. Judson, 43 Misc. 370, 87 N. Y. Supp. 499.

1 Judgments in actions for conversion (Crawford v. Burke, 195 U. S. 176; Tindle r. Birkett. 183 N. Y. 266), breach of promise of marriage, though coupled with a charge of seduction (Disler v. McCauley, 66 App. Div. 42, 73 N. Y. Supp. 270), are barred by the discharge in bankruptcy.

The fact that the judgment creditor proved his claim in the bankruptcy proceeding does not affect the question whether the debt or judgment was discharged. Frey v. Torrey, 70 App. Div. 166, 75 N. Y. Supp. 40, 10 Anno. Cas. 410; aff'd, on opinion be low in 175 N. Y. 501.

of Congress relating to bankruptcy, and which existed on the day of 19 ; and that more than one year has elapsed

That in the schedule of creditors annexed to the defendant's petition in bankruptcy the plaintiff's said judgment was duly included in time for proof and allowance,2 and set forth as follows: [give extract from schedule showing that judgment was set forth properly, and plaintiff's address properly given.] That the plaintiff's address was correctly set forth in said schedule.3

[If according to the fact may state: That said plaintiff duly appeared upon said bankruptcy proceedings and proved his claim therein.]*

FORM No. 2067.

Affidavit to oppose motion to cancel judgment, after judgment debtor's discharge in bankruptcy. 5

[If the plaintiff's residence was stated in the schedules, show its incorrectness, and that defendant knew or might have ascertained the correct address.]

[If the plaintiff's residence be scheduled as "unknown," show either that it was known to the defendant, or could have been ascertained by means of reasonable effort.]

That no notice or knowledge of the filing of the petition or of the adjudication in bankruptcy of the above named defendant, or notice to creditors to prove claims, or of the application for the discharge, [or the discharge in bankruptcy of the defendant herein, or of any of the bankruptcy proceedings of the defendant.] has ever been had or received by deponent.

FORM No. 2068.

Order on bankrupt's or insolvent's motion to cancel judgment.

[Title (court order) and recitals according to the case-see Form 820, p. 1174-continuing:] and it appearing that the defendant has been discharged from the payment of the judgment hereinafter referred to [or, from the debt upon which the judgment hereinafter referred to was recovered]; now, upon reading and filing the notice of this motion, and the affidavit of O. P., verified on the , 19, and on proof of the due service thereof upon the [attorney for] said [judgment creditor]; ORDERED, that the judgment recovered by A. B. against Y. Z., in this court, and entered and docketed in the office of the clerk [of the county of for

day of

], on the

day of

19

dollars, be, and the same is hereby discharged, and said judgment is hereby directed to be cancelled and discharged of record [but such cancellation and discharge of record is not to impair any rights or liens which the plaintiff - may have acquired in the property of said judgment debtor.]

FORM No. 2069.

Another Form- by perpetual stay.8

That the plaintiff above named and his attorneys be and they are hereby perpetually enjoined from issuing execution on the judgment herein, and if execution has ben issued, from enforcing the same, and from collecting or in any way enforcing the judg

rupt in scheduling the creditor's residence as "unknown." Matter of Mollner, 75 App. Div. 441, 78 N. Y. Supp. 281.

7 Held properly inserted in Pickert r. Eaton, 81 App. Div. 423, 81 N. Y. Supp. 50; Arnold v. Treviranus, 78 App. Div. 589, 79 N. Y. Supp. 732.

8 As to this relief, see Palmer v. Hussey, 119 U. S. 96, aff'g 59 N. Y. 647.

This order was necessarily obtained by the bankrupt where the judgment

was obtained after the discharge, under Code Civ. Pro., § 1268, as it stood prior to 1899. By the 1899 amendment, a motion to cancel the judg ment will lie if it appear that the debt upon which the judgment was recovered was discharged. See Hussey r. Judson, 43 Misc. 370, 87 N. Y. Supp. 499. It seems that a perpetual stay may be still obtained in a proper case. See Latimer v. McKinnon, 72 App. Div. 291, 76 N. Y. Supp. 40.

ment herein, or attempting so to do; and that all proceedings in this action, or founded on the cause of action herein, on the part of the plaintiff and his attorneys and agents, be and they are hereby perpetually enjoined and stayed.

FORM No. 2070.

Leave to plead discharge, after judgment, and leave to plaintiff to discontinue.9

ORDERED, that said defendant have leave to serve his proposed supplemental answer herein within [three] days after the entry of this order, on payment to plaintiff's attorney of all costs of the action, including the costs of entering judgment.

And it is further ordered, that upon the service of said answer and the payment of such costs, the judgment herein entered on the 19 be and the same is hereby

day of

vacated and set aside.

And it is further ordered, that the plaintiff have leave to discontinue this action as against said defendant

within

twenty days after service of said answer, without costs, if so advised.

FORM No. 2071.
Satisfaction of judgment.10

[Title of court and cause.]

[Venue.]

Satisfaction is acknowledged between A. B., plaintiff, and Y. 7., defendant, for the sum of

dollars, of judgment entered

in the judgment-book of the [clerk of the county of New York], on the day of

19

[Signatures.11]

[If acknowledged before clerk, may say:] Acknowledged before me, the 19 by O. P., to me known

day of

to be [one of the attorneys of record of the plaintiff] in the above action.

[Signature of], Clerk.

[If not before clerk, acknowledge as in Form 822.]12

Kahn v. Casper, 51 App. Div. 540, 64 N. Y. Supp. 838.

10 Sustained by Beers v. Hendrickson, 45 N. Y. 665.

11 May be signed by judgment creditor, or his executor or administrator; or by attorney of record, if within two years after filing judgment-roll, or after entry of final judgment or order

of affirmance; or, if an assignment is on record, by the assignee. Code Civ. Pro., § 1260.

An attorney may only satisfy a judgment upon its payment in full. Lowman v. Elmira, etc., R. R. Co., 85 Hun, 188, 32 N. Y. Supp. 579.

12 See Form 2073 for acknowledgment by member of firm of attorneys.