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ARTICLE IV.

ENFORCING JUDGMENT FOR COSTS AGAINST A THIRD PERSON INTERESTED.

FORMS.

2268. Order that a third person pay 2269. --an attorney for non-resident pay costs, etc.

the costs of an action.

FORM No. 2268.

Order that a third person pay the costs of an action.51

[Title (court order) and recitals as in other cases, but reciting personal service on, or appearance of, the third person.]

ORDERED, 1. That said M. N., as a person beneficially interested in the recovery in this action, pay to T. Z., attorney for the defendant Y. Z., within [five] days after the service upon him of a copy of this order, the costs recovered by said defendant Y. Z. against the plaintiff in this action, amounting to the sum of dollars, with interest thereon from , 19.

to the date of said payment, for which judgment was entered in this action on the day of 19, in favor of the said defendant against the said plaintiff, together with $10 costs of this motion.52

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

51 Sustained in Merceron t. Fowler, 46 N. Y. Super. Ct. 351; N. Y. Code Civ. Pro.. $ 3247; s. P., Slauson r. Watkins, 95 N. Y. 369.

The statutory provision is not violative of the Constitution. Tucker v. Gilman, 58 Hun, 167, 11 N. Y. Supp.

555.

A judgment creditor, on whose behalf a receiver has sued, is liable. Bourdon r. Martin, 84 Hun, 179, 32 N. Y. Supp. 441.

A transfer to escape liability for

costs, or to avoid giving security for costs, where the assignor retains the beneficial interest, is within the statute. Friedman v. Met. Steamship Co.. 109 App. Div. 600, 96 N. Y. Supp. 331. Pendleton . Johnson, 18 N. Y. Supp. 211, 21 Civ. Pro. 272.

52 The person ordered to pay the costs may be punished for contempt on failure to comply with the order. Tucker r. Gilman, 14 N. Y. Supp. 392, 20 Civ. Pro. 397. Contra, Morrison t. Lester, 15 Hun, 538.

FORM No. 2269.

Order that an attorney for non-resident pay part costs, and the assignee of the demand pay the balance.53

[Title of action.]

At a Special Term [etc., as in
Form 820, p. 1174].

On reading and filing the affidavit of Y. Z., verified the

day of

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19 , showing to the satisfaction of the court that the plaintiff is, and at the commencement of this action54 was, a non-resident of the State of and that this suit

was prosecuted for the benefit of M. N., the assignee of the note on which the action was founded; and after hearing A. T. of counsel for the plaintiff, and T. Z. of counsel for defendant; Now, on motion of T. Z., attorney for defendant:

ORDERED, that said A. T. pay to the defendant his costs accrued in this cause to an amount not exceeding the sum of one hundred dollars; and that the said M. N. pay to the defendant the balance of said costs, and ten dollars the costs of this motion. Enter: [signature of judge by initials of name and title.]

53 This Form is adapted from Waring v. Barett, 2 Cow. 460; s. P., N. Y. Code Civ. Pro., § 3278.

54 An affidavit that plaintiffs are non-residents is insufficient. Moir v. Brown, 9 How. Pr. 270; Long v. Hall, 3 Sandf. 729; Alexander v. Carpenter, 3 Den. 266.

The only way which an attorney's liability for costs can be properly adjudicated upon is by motion for an order requiring him to pay the costs. In re Levy, 2 Civ. Pro. Rep. (Browne)

108.

INDEX OF SUBJECTS AND FORMS.

[To avoid swelling the index unnecessarily, the lists of forms given at the head of each chapter, or division of a chapter, are not reprinted here in full, but the reader is referred to them instead, wherever this has seemed likely to save time in search.

Thus, under " Affidavit," the reader is first referred to p. 13, where he will find a list of common forms applicable to affidavits in general, which list is not reprinted at length in the index. Following this reference he will find in the index an alphabetic list of all the affidavits for particular purposes which are scattered through the volume. So under "Injunction" the reader is first referred to those pages where he will find the extended contents of the text and forms for Injunctions in general, and motions relative thereto; to this is added, in the index, an enumeration of the forms in other parts of the book which bear on this subject, such as the injunction often inserted in an order appointing a receiver (contained in the article on Receivers); the dissolution of an injunction by final judgment (contained in the chapter on Trial and Judgment).]

[Volume I ends with page 1169.]

particulars, F. 1081, p. 1407. ACCOUNT, referred to in pleading; and demand of copy. See list,

ABANDONMENT of part of claim in | ACCEPTANCE, compelling, of bill of replevin, F. 801, p. 1160. ABATEMENT of action, p. 1432. affidavit to move to declare action abated, F. 1138, p. 1460. order of, F. 1140, p. 1461. stipulation to waive, F. 1618, p. 1792.

suggestion of death, F. 247, p. 447. |
entitling papers after change of
parties, p. 38.

order vacating injunction because
of. F. 668, 669, p. 991, 992.
recital of abatement and continu-
ance in judgment, F. 1704, p. 1856.
of nuisance, publication of notice,
p. 347, n.

ABBREVIATIONS of names in sum-
mons, p. 624.

ABIDE EVENT, order that one ac

tion abide even of another, F.
1236, p. 1523.

stipulating to, p. 436; F. 242, p. 443.
costs ordered to abide event, p.
2100.

ABSCONDING, affidavit of, to obtain
service by publication, etc., F. 391,
p. 674; attachment, F. 830, p. 1195;
arrest, F. 943, p. 1290.
ABSENCE, affidavit proving, p. 658.
allegation of fruitless inquiry, to
establish, p. 667.

for forms, see F. 390. p. 673; F. 400,
p. 682; F. 408, p. 687.

P. 1394.

of receiver.

See list, p. 1126; report of referee passing, F. 775, p. 1132. ACCOUNT BOOKS, compelling production at trial of, affidavit for, F. 1513, p. 1703.

order for production of, F. 1514, p. 1704.

subpoena for, F. 1512, p. 1702. ACCOUNTING, of receiver, p. 1126. action for does not abate, p. 1433, n. order of surrogate that executor or

administrator render an interme-
diate, F. 2181, p. 2142.

power given on reference of the is-
sues, F. 1828, p. 1920.
reference to examine account of
special guardian after objections
or exceptions, F. 1341, p. 1594.
examination before trial in action
for, F. 1399, p. 1636; in action
against broker for, F. 1399, p.
1636.
examination of party, and discovery
and inspection of books and vouch-
ers in action for, p. 1347, n.
order that books and papers be de-
posited with referee, F. 1353, p.
1597 (and see ACCOUNT).

[Volume I ends with page 1169.]

ACCOUNTING - Continued.
direction for accounting before
judgment, F. 1792-1803, p. 1900,
etc.

appearance of third persons before

referee on, F. 1806, p. 1906.
exceptions to report of a referee ap-
pointed to take and state an ac-
count, F. 1809, p. 1908.
appointing a receiver pending, F.
704-709, p. 1061.

recital in judgment that trustee ac-
counted in open court, F. 1773, p.
1890.

ACKNOWLEDGMENTS. For the prac-
tice and list of common forms,
see p. 2.

see also as to bonds, p. 25; under-
takings, p. 460; satisfaction
pieces, p. 2061, 2062.

ACTION, abatement of. See ABATE-
MENT.

in what cases to move rather than
bring new action, p. 77, 148, 613, n.
severing, p. 1387.

one motion or proceeding in several
actions, p. 84.

what is on contract, p. 1269.

by receiver, p. 1019; against re-
ceiver, p. 1020.
affecting stipulations, p. 441.
enjoining previous action, p. 822.
on undertaking, p. 993.

ADDRESS or direction of notice, p.
126.

of petition, p. 315.

obtaining address of adverse party,
F. 1111, p. 1431.
ADJOURNMENT of court to cham-

bers, p. 134; F. 73, p. 184.
of motion, p. 137; F. 124-127, p.
272, 273; for further preparation,
etc., F. 74, p. 184.

special appearance to oppose, F. 443,
p. 740.

notice to bring on hearing of mo-
tion after indefinite adjournment,
F. 51, p. 168.

of reference by court, pending stay,
F. 232, p. 426.

of examination before trial, F. 1421,
p. 1649.

of judicial sale, notice of, for ser-
vice, F. 2233, p. 2189.
ADMISSION, of service of papers, F.
11, p. 9.

not conceding timeliness, F. 12, p. 9.
of receipt of copy, F. 13, p. 9.

ADMISSIONS—Continued.

by attorney-general of service of
motion papers, etc., F. 720, p.
1078.

of personal service of summons, etc.,
F. 382, p. 649.

of service and consent to immediate
judgment, F. 383, p. 650.

of service of notice of sale of real
property, F. 2229, p. 2188.
by plaintiff of defendant's counter-
claim, F. 1105, p. 1427.

of facts by attorney's stipulation,
p. 435.

of genuineness of documentary evi-
dence, F. 1382, p. 1614.

of copy document, F. 1372, p. 1611.
of details stated in schedule, F.
1370, p. 1611.

of counsel, on motion, to be recited
in order, p. 225.

ADVERTISEMENT for liens in parti-
tion, F. 1998, p. 2022.

of sale in foreclosure, partition,
etc., F. 2228, p. 2186.

as to publishing legal advertise-
ments, see PUBLICATION.
AFFIDAVITS.

For the practice, see

p. 11-13; p. 1181.
Formal parts, see list of Forms,
p. 13.

certificate of authority of foreign
officer taking, F. 20, p. 16.
compelling for motion, p. 106; F.
53-59, p. 172.

liability to be compelled to make,
for motion, p. 507..

on motion to declare abatement of
action, unless the representatives
contínue it, F 1138, p. 1460.
for plaintiff to move to substitute
executor or administrator of de-
ceased defendant (short Form),
F. 1125, p. 1449.

of attachment issued, and death of
defendant before publication of
summons completed, F. 1131, p.

1454.

to obtain order on behalf of defend-
ant continuing action in name of
representative or successor of
plaintiff, deceased or assigned, F.
1141, p. 1461.

for motion, on behalf of executor
or administrator, heir, devisee, as-
signee, receiver, etc.. to be sub-
stituted in place of original plain-
tiff or defendant, F. 1160, p. 1475.

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