FORM No. 1301. Another Form; offer of judgment for specific relief.12 "The defendants herein H. B. and A. V. G., as individuals, and as executor and executrix of and trustees under the last will and testament of H. B., late of the city of deceased, hereby offer to allow judgment to be taken against them in favor of plaintiff requiring defendants to specifically perform their contract with the plaintiff referred to in the amended complaint herein, by conveying to the plaintiff a good marketable title to the premises in said contract described free from all adverse claims referred to in said complaint, together with costs. "Dated, NEW YORK, 19 ." FORM No. 1302. Another Form; in replevin, excepting some of the chattels. [As in Form 1299 to the *, continuing:] for the possession of all the chattels described in the complaint herein except [name articles], with costs.13 FORM No. 1303. Offer by plaintiff to allow judgment on counterclaim.14 [Title of court and action.] The plaintiff hereby offers to allow judgment to be taken against him by the defendant [s] for dollars, with costs [or, to be taken against the defendant for the sum of dollars, and against the plaintiff in favor of the defendant for costs]. [Signature of plaintiff with acknowledgment, or signature and office address of – [Date.] [Address] To Attorney for defendant. Attorney for plaintiff.] [Affidavit when attorney signs; see Form 1304.] Div. 240, 48 N. Y. Supp. 779, 5 Anno. 12 From Abel v. Bischoff, 99 App. Div. 248, 90 N. Y. Supp. 990. 13 From Shepherd v. Moodhe, 150 N. Y. 183, where it was held that an acceptance of the offer estopped plaintiff from thereafter claiming title to the excepted articles. 14 N. Y. Code Civ. Pro., § 739. See notes to preceding Forms. FORM No. 1304. Affidavit to authenticate attorney's offer, or acceptance of offer.15 [Entitle in the cause, unless indorsed or under derwritten on offer or acceptance.] [Venue.] Z. T., being duly sworn, says: I. That he is the attorney for [or, one of the attorneys for] the defendant Y. Z. [or, the plaintiff naming the party making the offer or acceptance] in the above entitled action. II. That deponent is duly authorized by said [name all] to make the annexed [or, within-or, foregoing] offer of judg ment [or, acceptance of offer of judgment], on behalf of said and has subscribed the same, pursuant to such authority. [Signature.] FORM No. 1305. Notice of acceptance of offer of judgment.16 [Title of court and action.] Please take notice that the plaintiff [or, the defendant] hereby accepts the offer of the defendant [naming whom, if part of several or if plaintiff's offer of plaintiff], dated the day of 19 to allow judgment to be taken against him [Signature of party [Date.] [Address] To Attorney for defendant. dollars], with costs. with acknowledgment; or [Annex affidavit when attorney signs; see Form 1304.] 15 Required by Code Civ. Pro., 740, when attorney signs either offer or acceptance. Its omission is a mere irregularity which will not invalidate the judgment. St. John, etc., Co. v. Smith, 82 App. Div. 348, 82 N. Y. Supp. 1025. But makes the offer ineffective. Riggs v. Waydell, 78 N. Y. 586. 16 Serve within ten days of service of offer; or within twenty days, if the offer was served by mail. Van Allen v. Glass, 60 Hun, 546, 15 N. Y. Supp. 261, 21 Civ. Pro. 127. FORM No. 1306. Affidavit to enter judgment on accepted offer. [Title of court and action.] [Venue.] A. T., being duly sworn, says: I. That he is [the managing clerk in the office of] the attorney for the plaintiff in this action. day of II. That on the 19 the defendant Y. Z. [by Z. T., his attorney], served [by mail] upon said attorney for the plaintiff the annexed written offer, subscribed by said defendant [or, subscribed by said attorney for the defendant, and duly authenticated by his affidavit thereto annexed], to allow judgment to be taken against said Y. Z. in this action, for [the sum of dollars], with costs [or state special relief]. III. That on the day of 19 and within ten [or, twenty, if served by mail] days after the service of said offer as aforesaid, the plaintiff accepted the same, and served upon said defendant['s attorney] a written notice of acceptance, subscribed by plaintiff, of which a copy is [or, subscribed by plaintiff's attorney, and duly authenticated by his affidavit, of which notice of acceptance and affidavit copies are] hereto annexed. IV. That the items of expense and disbursements embraced in the annexed bill of costs have been, or will be, necessarily incurred by the plaintiff in this action. [Jurat.] [Signature.] FORM No. 1307. Judgment on accepted offer. [Title of court and action.] The summons in this action having been duly [personally] served on the defendant, and the defendant having duly appeared and offered in writing to allow judgment to be taken against him for the sum of dollars, with costs; and the plaintiff having within ten days thereafter duly accepted said offer and the plaintiff's costs having been duly taxed at the sum of Now, on motion of A. T., plaintiff's attorney, dollars; IT IS ADJUDGED, that the plaintiff A. B. recover of the defend ant Y. Z. the sum of amounting together to dollars, with dollars costs, FORM No. 1308. Affidavit to move for payment of sum admitted by answer.17 [Title of court and cause.] [Venue.] J. L. L., being duly sworn, says that he is the plaintiff's attorney herein; that the answer served herein admits $ to be due plaintiff, [and that the annexed notice of offer to allow judgment was served on deponent, by defendant's attorney herein, on the 19 and that the plaintiff has not accepted said offer, and the time to accept the same has expired.] [Jurat.] day of FORM No. 1309. Notice (or order to show cause) thereon. [Signature.] [Title, etc. (moving on pleadings and offer and affidavit to facts) as in Form 815 or 818, substituting for the italic clause between the and ¶:] that the defendant pay to the plaintiff the part of the plaintiff's claim admitted to be just, to wit, the sum dollars, with interest thereon from the of of day 19 with costs of the action to the time of the service of said offer to allow judgment, without prejudice to the continuance of the action for the balance claimed to be due, and with costs of this motion, and for such other [etc.]. 17 Sustained by Wireman v. Remington, etc., Co., 39 N. Y. Super. Ct. 315. The defendant [if one of several not jointly liable, name him] hereby offers that if he fails in his defense in this action, plaintiff's damages may be assessed at the sum of [Date.] [Address] To dollars. [Signature of defendant, with acknowledgment, or signature and office address of] Attorney for plaintiff. Attorney for defendant. [If subscribed by attorney or by one of the several partners, etc., add affidavit; see Form 1304.] FORM No. 1311. Notice of acceptance thereof.19 [Title of court and action.] Please take notice, that plaintiff hereby accepts the offer of the defendant [if one of several, name him], dated the day of 19 that if he fails in his defense herein, the plaintiff's damages be assessed at the sum of [Date.] [Address] To Attorney for defendant. dollars. [Signature of] Attorney for plaintiff. [If subscribed by attorney or by one of several partners, etc., add affidavit; see Form 1304.] 18 This offer, which is allowed by N. Y. Code Civ. Pro., § 736, in actions on contract, must be served with the answer. If not accepted, it has the effect of entitling defendant to recover his expenses of preparing for trial of the question of damages, unless plaintiff's damages are assessed at a larger sum. 19 To be served with or before notice of trial. |