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thus:] overruling the defendant's answer as frivolous and directing judgment for the plaintiff; and the [defendant] having appealed, or being about to appeal, therefrom, to the Appellate Division of this court for the [First] Department; Now, on reading and filing the affidavit of M. N., verified the day of
, 19 , and after hearing T. Z. for said defendant, and A. T. for plaintiff; and on motion of T. Z. for the defendant:
ORDERED, that all proceedings on the part of the plaintiff] be stayed pending such appeal,o provided the [defendant) shall within days from the date of this order give an undertaking in due form, executed by [the defendant and] sufficient sureties, who shall justify in the usual manner if excepted to, and conditioned that the appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding five hundred dollars; and also [etc., as in Forms 2086, 2087, 2088, or, 2089, from the * to the end).
[Authentication as in Form 818, p. 1173 of this volume.]
FORM No. 2103.
820, p. 1174 of this volume.] [Title of action.]
Upon the judgment-roll and notice of appeal herein [and specify other papers on file if needed to sustain the order], and on reading and filing the affidavit of A. B., verified the day of , 19 , and it appearing that the premises described in the pleadings and judgment herein are subject to a large amount of taxes, water rents and assessments, for some of which said premises have been or are about to be sold; and after hearing A. T., of counsel for the motion, and T. Z., of counsel for the defendant [or, on reading and filing proof of the notice of this
appeal from an order granting resti. tution. Mossein 1. Empire State Surety Co., 97 App. Div. 230, 89 N. Y. Supp. 843. Nor in foreclosure, by one not in possession or liable for the deficiency. Rosenbaum v. Tobler, 31 App. Div. 312, 53 N. Y. Supp. 722.
60 A clause granting a necessary extension of time to perform an act required by the order or judgment appealed from may be inserted. Gray
0. Green, 14 Hun, 18. So the court may impose terms as a condition of granting the stay. Waring . Somborn, 12 id. 81; Wilson v. Grant, 59 How. Pr. 350.
61 Fellows v. Heermans, 13 Abb. Pr. (N. S.) 1; 8. P., N. Y. Code Civ. Pro., & 713. Compare Washington Market Co. r. Warthen (Dist. Col., 1883), II Wash. Law Rep. 498.
motion, and no one appearing] in opposition, and on motion of A. T., attorney for the plaintiff.
ORDERED, that R. C., of the city of , be and he hereby is appointed receiver of all the premises hereinafter described, as also of all the back outstanding rents due and unpaid from the defendant's tenants therein, during the pendency of and until the final determination of any appeals herein.
[Directions to receiver, collections, payments, etc.; see p. 1040 of Volume I, etc.]
ORDERED, that the said plaintiff, his relatives or his family, the said defendant, her relatives or family, or any or either of the families or relatives of the respective parties to this action, or any part thereof, shall not, either directly or indirectly, use, live on or occupy any part or portion of the aforesaid premises under any pretense whatsoever, except the defendant may have to and including
, 19 , within which to quit and surrender to the said receiver the portion of said premises occupied by her.
[Bond clause and authentication as in end of Form 679, p. 1029 of Volume I.] [Description of premises.]"
FORM No. 2104. Affidavit to obtain order to mark judgment, “ lien suspended on appeal.”82 [Title of court and action.] [Venue.]
Y. Z., being duly sworn, says: I. That he is the [defendant] in the above action (or otherwise state relation to the cause].
II. That judgment was duly entered herein in favor of plaintiff against defendant for the sum of dollars, on 19 , and the judgment-roll was filed and said judgment docketed in the office of the clerk of the county of on the day of , 19 [or otherwise show lien acquired. See Forms 2171, etc., under Execution].
III. That on the day of , 19, an appeal from said judgment to the [Appellate Division of this] court was duly taken and perfected by deponent, and an undertaking on appeal
the appellant to a stay of the execution of the said judgment,
the appelasiven in the suponent, and an of this] court
a stay of the ex. dollars, suficing on appeal
without an order for that purpose, of which a copy is hereto annexed.
Il. That said defendant is owner of [or, interested in] vertain real property [or, chattels real — or both] in said county of , on which said judgment is an apparent lien. If only a portion is desired to be exempted, continue :] Said property is described as follows: [description in full].
V. That the defendant desires to sell [part of] said property [designating which part], but by reason of the lien of said judgment he cannot convey a good title. That he is amply respon. sible to pay said judgment, and the lien of said judgment is sufficiently secured by resting alone on his other property (or state other facts making it safe to grant the order]. [Jurat.]
[Signature.] FORM No. 2105.
Consent of sureties annexed thereto. (Title of court and action.]
We do hereby consent to the granting and entry of the proposed [or, annexed] order discharging and exempting from the lien of the judgment in the above action the defendant's real property in the county of [or, the property mentioned and described in the annexed affidavit of Y. Z., the defendant herein). [Date.]
[Signature.] [Acknowledgment as in Form 822, p. 1176, of this volume.]
FORM No. 2106. Order to show cause why judgment lien should not be suspended on appeal.
[As in Form 818, p. 1173, omitting the matter in brackets preceding the I, and substituting for the italic matter between the I and [:] directing the clerk of the county of to make an entry on his docket of the judgment described in the annexed affidavit: “Lien (partially] suspended on appeal.”
[Serve on attorney for respondent; also on the sureties in the undertaking on appeal.63]
FORM No. 2107.
At a Special Term [etc., as in Form
820, p. 1174 of this volume]. [Title of action.]
On reading and filing the affidavit of Y. Z., verified the day of , 19 , wherefrom it appears that an appeal from the judgment in this action has been by the [defendant] duly perfected, and that an undertaking sufficient to entitle the appellant to a stay of the execution of the judgment without an order for that purpose has been duly given by said [and recite due service on or appearance by the respondent's attorney, and due service on or appearance by the sureties, or if they have consented, add: and on reading and filing the within consent of said sureties to the entry of this order], and on motion of T. Z., attorney for the defendant:
ORDERED, that all the real property and chattels real [or, that the property hereinafter described], upon which said judgment is a lien, be and hereby is [or, are] henceforward exempted from the lien of said judgment as against judgment-creditors, purchasers, and mortgagees in good faith; and that the clerk of the county of is hereby directed to make an entry in his docket of said judgment in each place where it appears in the docket book, substantially as follows: “ Lien (partially] suspended on appeal; see order entered the day of , 19 ” [here specifying the date of his entry of the order].
[If specified parcels only are exempted, add: the property above mentioned is known and described as follows — description.] [May add: this order is made upon condition — stating what].65 Enter: [signature of judge by initials of name and title.]
III. SUBSTITUTION OF PARTIES. [The remedies for substitution, when necessary for purposes of appeal, are as follows: I. Appeal by party taken after his adversary is dead.
(1) Take appeal as if he were still living. Forms 2074-2080.
Forms 2108, 2109, p. 2086.
64 By this order all real property, including after-acquired property, is released from the lien of the judgment until restored by a re-docket under
Code Civ. Pro., 8 1259; Wronkow 0.
65 The court may require further security as a condition. Bergen 0. Stewart, 28 Ilow. Pr. 6.
II. Appeal by representative of party dying before appeal, or by any one not a party who has acquired an interest and is aggrieved.
(1) Take appeal as if a party. Forms 2074-2080.
adding an allegation of having taken and perfected an appeal. III. Application of representative of party dying after appeal is taken by such party, or by his adversary, to be substituted.
[Affidavit and order, see Forms 2110-2114 (below). IV. Disposal of appeal on application of a party where the adverse party has died after appeal, and his representative fails for three months to procure substitution.
(Affidavit and order to show cause see Forms 2115 and 2216
FORM No. 2108. Affidavit to compel the substitution of representative of deceased adverse
farty.66 [Title of court87 and action.] [Venue.]
T. Z., being duly sworn, says:
I. That he is the attorney for Y. Z., the [defendant) and appellant herein (or otherwise show relation to the cause.]
II. That on the day of , 13 , a judgment was rendered and entered [or, an order was made and entered] in the above-entitled action, by the Court, in faror of the plaintiff and against the defendant, for dollars (or otheruise describe the judgment or order appealed from]. III. That after such entry, and on or about the day of
, 19 [or if the judgment or order was entered after the respondent's death in a case allowed by Code Civ. Pro.. section 763, allege it according to the facts], the said A. B. di-d. leaving his last will and testament, which has been duly admitted to probate by the surrogate of the county of , and wherein M. N. was appointed executor, and said M. N. has qualified and entered on the discharge of his duties as executor and now is such executor (or if the party died intestate, allege the appointment and qualification of M. N. as administrator; see p. 1450 of
60 X. Y. Code Cir. Pro., $ 1297; 87 V. Y. 503.
67 If the appeal is from one court to another. entitle in the appellate court. N. Y. Code Civ. Pro., $ 1299. If from Special Term to Appellate
Division of the same court, entitle in the court generally, and apply at Special Term. Campbell r. Friedlander, 51 App. Div. 191, 64 N. Y. Supp. 241.