FORM No. 2149.

Order for restitution (with award of execution).15

[Title of action.]

At a term of the Appellate Division [etc., as in Form 820, p. 1175 of this volume].

The warrant of attachment issued in this action on the

day of

day of

19

and the judgment entered herein on the having been vacated and set aside by the order of the Appellate Division of this court in this department, dated 19, and filed , 19, and the said order having been affirmed by the Court of Appeals, and the order of the Court of Appeals affirming the same having been made the order of this court on the day of , 19, and the defendant having moved [pursuant to the provisions of sections 1292 and 1323 of the Code of Civil Procedure] for restitution of property lost under the said erroneous attachment and judgment, and the said motion having come on to be heard, and the defendant having read and filed in support of said motion the affidavit of E. R., verified 19, and a certified

copy of the appointment of L. M. P. as receiver of the defendant, and the plaintiff having read and filed in opposition to said motion the affidavit of A. B. C., verified , 19 and it appearing by the said papers [state facts established]; Now, after hearing E. R., Esq., for the motion, and A. W., Esq., in opposition thereto and due deliberation being had, on motion of E. R., attorney for the defendant:

day of

ORDERED, that the said motion for restitution be and the same is hereby granted, so as to require the plaintiff above named to pay back to the above-named defendant the sum of dollars, with interest thereon from the [and that satisfaction of the recovery herein provided for shall be made by payment to L. M. P., Esq., receiver of the Pacific National Bank of Boston, or the attorneys of the defendant in this action as the attorneys of the said receiver].

It is further ORDERED, that such payment be made within [ten] days after the service upon the plaintiff, or upon A. T., his attorney, of a certified copy of this order.

court to amend the judgment on appeal so as to insert a provision for restitution. People r. Livingston, 80 N. Y. 66.

It seems that the Court of Appeals

will not entertain the motion after the remittitur has been filed. Wright r. Nostrand, 100 N. Y. 616, 1 Cent. Rep. 235, 3 N. E. Rep. 78.

15 This order is discretionary. See

FORM No. 2150.

Order for restitution of specific property.16

ORDERED, that the defendant [name] be restored to the possession of the real estate sold under the judgment of the [Supreme] Court in this action and conveyed to the plaintiff; that the mesne profits of the said real estate be ascertained, and paid by the plaintiff herein to the said defendant, and that it be remitted to the Supreme Court to make such orders and to issue such process or mandates as may be necessary and appropriate to effect the restitution hereby ordered.

FORM No. 2151.

Order for restitution of fund taken from court.17

the sum of

ORDERED, that the [defendant] redeposit with the treasurer of the county of dollars drawn by him under the judgment entered in the above-entitled action on the day of

19 .

VII. REARGUMENT.

FORM No. 2152.

Order for stay pending motion for reargument.18

Court of Appeals.

[Title.]

On the annexed affidavit of B. W. H., verified the

of

day

19, it is ORDERED that, to enable the [appellant] in the above entitled appeal to prepare and present a motion herein on the first motion day of this court in the Term thereof, for a reargument of said appeal, the entry of judgment on the decision of said appeal [or, the filing of the remittitur, and proceedings to make the judgment of this court the judg ment of the court below] be stayed until the decision of such motion for reargument and the further order of the court [and

Merriam v. Wood, etc., Lith. Co., 155 N. Y. 136; Haebler v. Myers, 132 id. 363.

It was suggested in Kidd v. Curry, 29 Hun, 215, that upon granting the discretionary order for restitution, conditions might be imposed for the safe keeping of the restored property. 16 From Holly r. Gibbons, 177 N. Y. 401, where, on motion, the Court of

Appeals directed its remittitur to be amended to provide for the restitution and accounting as above.

17 From Devlin v. Hinman, 161 N. Y. 115, where the court held that the order was enforceable by contempt proceedings.

18 Such a stay may be for more than twenty days. Franklin Bank Note Co. v. Mackey, 158 N. Y. 683.

that the attorneys for the respondents hold the remittitur and have the same ready for recall thereof by the court, in the event such recall shall be ordered]. [Date.]

[Signature],

Judge Court of Appeals.

FORM No. 2153.

The same; another Form.

The Court of Appeals having decided the issue raised by the appeal herein, and the remittitur having been handed down and filed, and it appearing that the [appellant] is about to make a motion for the reargument of the appeal herein, now on motion. attorney for the [appellant],

of

I do hereby order and direct that all proceedings under the remittitur herein be stayed pending the hearing and decision of said motion for reargument, which must be submitted on the first motion day in the month of

19 .

[Signature],

Judge Court of Appeals.

FORM No. 2154.

Notice of motion for reargument of appeal.19

[Title of the appellate court and action.]

Please take notice, that upon the appeal book and briefs herein, filed and presented to the court upon the argument of the appeal herein, and upon the opinion of the court handed down with the decision on 19, a motion will be made to the [Court

of Appeals, at the Capitol, in the city of Albany, on the day of 19 at two o'clock on said day] for a reargument

of said appeal.

That the grounds upon which the reargument is asked are as follows:

(1). That the court overlooked the fact [etc.].

(2). That the court overlooked the case of [state], with which the decision in the case at bar is in conflict [etc.].

And that meantime the entry of judgment upon the remittitur be stayed, and the Supreme Court in and for the county of

19 For the grounds upon which the Court of Appeals will entertain the

motion, see Fosdick v. Town of Hempstead, 126 N. Y. 651.

be requested to return the remittitur to this court, and for such other relief as may be just.

Order to show cause, upon application for reargument, with stay.

Court of Appeals.

[Title.]

Upon the case on appeal, the annexed opinion of this court on [reversing the judgment of affirmance entered in this action on the day of , 19], the remittitur, and all the papers and proceedings heretofore had herein, and the annexed affidavits of [state], verified on the

day of

day of

19

Let the defendant-appellant, or his attorney, show cause before this court, at a stated term thereof to be held at the Capitol in the city of Albany, on the 19 at the opening of court on that day, why the New York Supreme Court in and for the county of should not be requested to re

turn the remittitur herein to this court, and why the appeal taken herein from the said judgment of affirmance should not be reargued, because the decision of this court reversing the said judg ment is claimed by the plaintiff-respondent to have been due to over-sight, misapprehension, or error, on the part of this court, upon the following grounds, viz.:

[State grounds urged for reargument.]

It is hereby ordered that all proceedings on the part of the defendant-appellant or its attorney, except to review or vacate this order, be and the same are hereby stayed until the final hearing and determination of this application. Sufficient reason to me appearing therefor, service hereof upon the defendant or its attorney on or before the day of 19 shall be

sufficient.

[Date.]

[Signature.]

Judge Court of Appeals.

[Title of action.]

FORM No. 2156.

Order granting reargument.

At a term of the Court of Appeals of the State of New York [etc., as in Form 820, p. 1174 of this volume].

On reading and filing notice of motion [and the affidavit of C. D.- if any], and on motion of A. T., attorney for the [appellant], after hearing T. Z. for the respondent:

ORDERED, that the appeal from the judgment [or, order] entered herein [describing it, if necessary] be reargued on the day of 19, and [make provision for preserving the status quo meantime, as, in case the remittitur had not been filed, and no judgment entered thereon: that the filing of the remittitur and the entry of the [judgment of affirmance] upon the remittitur from this court be stayed until the decision of the court upon such reargument.

[Or, in the Court of Appeals, if the remittitur has been filed in the Supreme Court, substitute:] and the Supreme Court in and for the county of [or, the Appellate Division of the Supreme Court for the Department] is hereby requested to

return the remittitur herein to this court.20

Enter: [signature of presiding justice by initials of name and

FORM No. 2157.

title.]

Order returning remittitur to Court of Appeals, and staying action on under

taking.21

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

ORDERED, that the filing of the said remittitur, and the order of this court making the same the order [or, judgment] of this court, and each of them be and the same are hereby vacated and

20 The Court of Appeals resumes jurisdiction upon the recall of its remittitur. For this purpose, the court, on granting the motion for reargu ment, will request the return of its remittitur by the lower court. See Franklin Bank Note Co. v. Mackey, 158 N. Y. 683.

21 This is the Form as entered in Wilmerdings r. Fowler, 15 Abb. Pr. (N. S.) 86. See, also, Cushman v.

Hadfield, id. 109; Cochran r. Ingersoll, 4 Wkly. Dig. 415.

The Supreme Court will decline to vacate its order and return the remittitur in the absence of an expression by the Court of Appeals that it desires such course to be pursued. Hillyer v. Vandewater, 11 N. Y. Supp. 167. Hence the application for this order should follow the granting of the reargument in the Court of Appeals.