the words

the words

and preceding the sentence beginning with 1, be, and the same is hereby stricken out as

scandalous and impertinent.

2. That O. P., the said attorney for [defendant], is hereby ordered to pay to [plaintiff] or his attorney forthwith, upon [or, within days after] the service of a copy of this order, ten dollars, cost of this motion, hereby charged upon him personally46 for his misconduct."7

[Title of cause.]

Enter,

[Initials and title of presiding judge.]

FORM No. 170.

The same; another Form.48

At a Special Term [etc., as in Form No. 94, p. 255.]

[Recitals, etc., as in last Form.]

ORDERED, that [defendant's] attorney have leave to withdraw from the files the affidavit of Y. Z., verified the

day of

day of

19, within two days after service of a copy of this order and on payment to [plaintiff], or his attorney, of ten dollars costs of this motion, which he is hereby directed to pay personally for his misconduct.

It is furthered ordered, that on failure of defendant's attorney so to do, plaintiff's attorney may withdraw and destroy said affidavit.

60 of this volume, and cases there cited. See Form No. 46, p. 62, of this volume for a Notice of Motion to take a scandalous or impertinent affidavit off the files.

46 That the attorney presenting such affidavits may be personally charged with costs, see paragraphs

Enter,

[Initials and title of presiding judge.]

18 and 142, on pp. 60 and 144 (above).

47 So that there may be a commitment for non-payment. See another Form as to costs, Form No. 101, p. 259 (above).

48 See note 45, p. 296, and last two notes (above).

FORM No. 171.

Order of judge, ex parte, vacating an order granted by him ex parte.49

I hereby vacate and discharge the order [of arrest] made by me in this action on the

FORM No. 172.

Order of court, ex parte, vacating an order of court granted ex parte.50 At a Special Term [etc., as in Form No. 94, p. 255.]

On reading and filing [designating papers, if any], and on inspecting the order granted by the court herein dated and entered on the 19 requiring [briefly identifying it], and on the application of M. N., attorney for the

FORM No. 173.

Order by judge to show cause why he should not vacate his order.51 [Title of court and cause.]

Upon the affidavits [or other papers] on which the order of arrest, dated the

me herein, let the [plaintiffs] show cause before me, at

on the day of

19 at

in the city of in the noon of such day, or as scon thereafter as counsel can be heard, why the said order of arrest herein granted by me should not be vacated and set aside [if for irregularity, specify it52 and any other ground], and for such other or further relief as may be proper. Service hereof, made on or before the

day of

[Date.]

Order of court to show cause why judge's order should not be set aside,58

[Title of cause.]

with stay meanwhile.

At a Special Term [etc., as in Form No. 94, p. 255].

On the annexed affidavit of A. B., verified the

of

day of

19

,

at

19 [and upon the summons and complaint in this action], and on the motion of S. H., attorney for the [plaintiff] show cause, at a Special Term [Part I] of this court, to be held at the County Court House in the Borough of Manhattan, on the first o'clock A. M. of that day, why the [here concisely identify the order], entered herein on the 19 should not be vacated [and if for irregularity add-on the ground that specifying irregularity and any other ground]. And in the meantime, and until the hearing and decision of this motion, all proceedings of plaintiff [and on the part of the sheriff of the county of toward the executing or attempting to execute the writ of assistance issued in this action], be and they hereby are wholly stayed.

52 See paragraph 110, p. 131, of this volume.

53 See last note but one (above), and compare paragraph 36, p. 94, as to its not being regular to apply.

Enter,

[Initials and title of presiding judge.]

to the court to vacate a judge's ex parte vacatur of his own ex parte order.

54 See paragraph 110, p. 131.

FORM No. 175.

Order of court on notice, vacating court order made ex parte or on notice.55 At a Special Term [etc., as in Form No. 94, p. 255.]

[Title of cause.]

A motion having been made on behalf of the defendant, A. B., on the day of , 19, to vacate the order [of injunction, or other order] heretofore granted by the court, upon the papers upon which the said order was granted [and also upon affidavits upon the part of the defendant, or other moving party]: Now, on reading and filing the said order [briefly identifying it], and the complaint, and the affidavits of [specifying the persons], verified on the 19, being the papers upon

day of

which the said order was granted by this court on the

day of

dav

of 19 [and upon reading and filing the affidavits of C. D. and E. F., verified on the , 19 presented upon the hearing of the motion in behalf of the defendantor other moving party- and upon reading and filing the affidavits of G. H. and H. I., verified on the day of 19, offered by the plaintiff in support of said order, and read in opposition to this motion] and after hearing M. N., Esq., of counsel for the [defendant] in support of the motion, and O. P., Esq., of counsel for the [plaintiff], in opposition thereto; and on motion of Q. R., attorney for the [defendant]:

ORDERED, that the motion be and the same is hereby granted, and the said [injunction] order dated and entered on the day of 19, be and the same hereby is wholly vacated

and discharged.

Enter,

[Initials and title of presiding judge.]

FORM No. 176.

Affidavit to move to vacate order for neglect to file papers.56

[Title of court and cause.]

[Venue.]

E. M. N., being duly sworn, says:

I. That he is one of the attorneys for the above-named plaintiffs.

55 See paragraphs 34. 35, and 38, pp. 91, 92, and 95 of this volume, for the rules as to vacating a court order. And see paragraphs 76-80, pp. 246248 (above).

As to whether a court order should be entered before moving to vacate it. see paragraph 40, p. 96.

56 See paragraphs 65 and 66, pp. 240, 241 (above), for the rule as to

II. [State condition of cause, as]: That the trial of the above entitled action has been had, in the county of New York, and the judgment roll has been duly entered therein, and is in the clerk's office of said county.

III. [State making of motion, as] That on the

now on file

day of

19 a motion made by the defendant for [state character] was duly heard in this court, and on the

day of

19 , an order was duly made thereon granting the

said motion, which order was entered on said day.
IV. That the affidavit of W. B., Esq., verified the

of

day

19, a copy whereof is hereunto annexed, was the only affidavit used on said motion; and that annexed hereto, with said affidavit, is a copy of the order to show cause granted by Mr. Justice J. K., on which said motion was made, and the order entered thereon.

V. That deponent presents herewith the certificate of the clerk of the county of New York, that he has made diligent search in his office for the original order to show cause and affidavit, and that neither one of them can be found [or, alleged search by deponent.]

?

VI. That deponent asks for an order to show cause returnable in less than [eight] days, why said order of 19 2 should not be vacated for defendant's neglect to file said motion papers. That the reason why an order to show cause is asked, is because [state facts showing necessity thereforsee page there is not time to give the usual notice of motion

VII. That no other application has been made for such an order as is now sought.

[Jurat.]

FORM No. 177.

[Signature.]

Order to show cause why order should not be vacated for neglect to file

[Title of cause.]

papers.57

At a Special Term [etc., as in Form No. 94, p. 255.]

On the annexed affidavit of E. M. N., and on the order to show cause [or, notice of motion], dated the

day of

19 and the affidavit of W. B., verified the same day, and the

filing motion papers and the effect of and remedy for neglect to file them. See Form No. 137, p. 279 (above), for an order compelling the filing of papers, and see notes 88-90 thereto.

Adapted from the affidavit in Curtis v. Greene, 28 Hun, 294.

57 Adapted from the same case as the last Form. See references cited in note 56, p. 300 (above).