the demurrer and answer over on payment of costs in this court and in the court below within twenty days from the day of the service of a copy of this order, with notice of entry thereof; and it is further

ORDERED, that in case of the failure of the defendant to withdraw the said demurrer and answer over and pay the costs as hereinbefore provided, upon proof of the default by affidavit, the plaintiff have final judgment in his favor, as demanded in his complaint, with costs.

day of

19

The plaintiff above named having appealed to the Appellate Division of this court from the interlocutory judgment entered herein on the sustaining the defendant's demurrer to the plaintiff's complaint, and said appeal having been duly heard, and said Appellate Division having by an order duly made and entered herein, directed said judgment to be reversed with costs, and that plaintiff have judgment overruling the demurrer to the complaint with costs, with leave to defendant to withdraw the demurrer and answer over within twenty days from the day of the service of a copy of the said order of the Appellate Division, with notice of entry thereof, on payment of costs in the Appellate Division and in the Special Term, and further directing that in case of the failure of the defendant to withdraw the said demurrer and answer over and pay the costs, upon proof of the default by affidavit, plaintiff have final judg ment in his favor as demanded in the complaint, with costs; and the plaintiff's costs having been duly taxed at $ motion of A. T., attorney for the plaintiff, it is

; now on

ORDERED and ADJUDGED, that the interlocutory judgment so appealed from as aforesaid be and the same is hereby reversed; and it is further

costs,

ORDERED and ADJUDGED, that the demurrer to the complaint herein be and the same is hereby overruled with $ but with leave to defendant to withdraw the demurrer and answer over within twenty days from the day of the service of a copy of the said order of the Appellate Division, with notice of entry thereof, on payment of the said costs; 11 and it is further

11 If issues of fact remain, the interlocutory judgment should not

award execution for the costs, but should provide that the costs be in

ORDERED and ADJUDGED, that in case of the failure of the defendant to withdraw the said demurrer and answer over, and pay the costs as herein before provided, upon proof of the default by affidavit, final judgment be entered herein in favor of the plaintiff as demanded in his complaint, with costs.12

Judgment

, 19.

FORM No. 2145.

[Signature of].

Clerk.

Affidavit to enter final judgment upon order of Appellate Division on de

[Title of court and action.]

[Venue.]

murrer.

T. Z., being duly sworn, says:

I. That he is [managing clerk for the] attorney for the defendant in the above-entitled action.

day of

II. That annexed hereto, marked A, is an affidavit of M. N., verified on the 19, showing service upon the attorney for the plaintiff of a copy of the order of the Appellate Division dated the 19, with notice

of the entry thereof.

day of

III. That no [amended complaint] in said action has been served upon or received by said defendant's attorneys, nor has the plaintiff paid the costs of this action under the terms of the order of the Appellate Division of this court granting leave to plaintiff to amend said complaint, and that the time for service of such amended complaint and payment of costs, as provided in said order, has heretofore expired.

IV. That no previous application [etc.; see p. 1172]. [Jurat.]

FORM No. 2146.

[Signature.]

Judgment after failure to answer pursuant to leave of Appellate Division on reversing order on demurrer.

[Title of court and action.]

The Appellate Division of this court having [reversed] the order of the Special Term thereof, overruling the demurrer inter

See

cluded in the final judgment. Cassavoy v. Pattison, 101 App. Div. 128, 91 N. Y. Supp. 876.

12 If final judgment is entered, no appeal will lie directly to the Court

of Appeals (as in case of affirmance by the Appellate Division of an interlocutory judgment). Abbey v. Wheeler, 170 N. Y. 122.

posed to the complaint, and having directed judgment in favor of the defendant, dismissing said complaint, with costs, with leave to plaintiff to amend said complaint upon payment of costs within twenty days after service of said order of the Appellate Division - now, on said order of said Appellate Division, and on reading and filing admission by the attorney for plaintiff of due service of said order with notice of entry on the

of

day of

19 and an affidavit of T. Z., verified on the

day

19 showing that the time fixed by said order. for service of an amended complaint and payment of costs has expired, and that no amended complaint has been served, and that the costs have not been paid; and the defendant's costs having been duly adjusted at $ : now, on motion of T. Z., at

torney for the defendant, it is

ORDERED, ADJUDGED and DECREED, 1. That the complaint in this action be and the same hereby is dismissed.

2. That the defendant, Y. Z. recover of the plaintiff, A. B.,

[For Forms overruling demurrer, see p. 1776, etc.]

VI. RESTITUTION.

FORM No. 2147.

Affidavit to obtain restitution after reversal at appellate division.13

[Title of the action.]

[Venue.]

E. R., being duly sworn, says:

I. That he is one of the attorneys for the Pacific National Bank of Boston, specially appearing in the above-entitled action for the purpose of moving and setting aside the judgment and process hereinafter mentioned.

day of

II. That on the 19 a warrant of attachment was issued out of this court, in an action therein pending by the above-named plaintiff against the above-named defendant, for the sum of

dollars.

III. That on the same day a levy was made under said attachment by service of a copy and certificate on the National Park

13 From Market Nat. Bank of N. Y. r. Pacific Nat. Bank of Boston. 102 N. Y. 464, where an order on this affidavit was sustained.

The fact that a new trial has been ordered does not affect the right to the restoration of specific property. Holly v. Gibbons, 177 N. Y. 401.

Bank of the city of New York, where the defendant had a deposit exceeding the amount of the attachment.

IV. On the

day of

19, a motion to vacate the said attachment was denied by an order of the Special Term of this court.

day of

V. That on the 19 , L. M. P., Esq., was duly appointed receiver of the defendant, the Pacific National Bank of Boston, by the comptroller of the currency, pursuant to the statutes of the United States, a duly certified copy of which appointment is annexed hereto.

VI. That on the

day of

19 , a judgment was entered in the action in favor of the plaintiff and against the defendant for dollars, service of the summons in the action having been made out of the State under an order of publication.

day of

VII. That on the 19, the sheriff of the county of New York, levied, collected and received from the said National Park Bank, as deponent is informed by the officers of the said bank, the sum of dollars under a writ of exeen

tion theretofore issued out of this court in this action to the said sheriff by the plaintiff against the defendant, dated

for

dollars, upon the said judgment of

19

by the endorsement of which the said sheriff was required to levy and collect

with interest from the

day of 19, besides his fees. The said dollars so paid to the sheriff by the said National Park Bank was paid by the said Park Bank as and for money of the defendant, and the defendant had at that time on deposit with the said National Park Bank that sum, and the said sum so paid was thereupon charged against the said defendant by the said National Park Bank. VIII. Thereafter and on or about the

day of 19, the order of the Special Term refusing to vacate the said attachment was reversed by the Appellate Division of this court in this department, and the said warrant of attachment and the said judgment entered on the day of , 19, and the levy under the said attachment and the said judgment were and each of them was vacated and set aside by this court on the defendant's motion.

[IX. The said order of the Appellate Division was thereafter affirmed by the Court of Appeals, and the order of the Court of Appeals affirming the same was duly made the order of this court on the day of

19 ]

X. That deponent on behalf of said receiver has demanded of the plaintiff that he should make restitution of the sum thus received by it under the attachment, judgment and execution so vacated and set aside, but the plaintiff has refused, and still refuses, so to do.

[Jurat.]

[Signature.] [Certified copy of appointment of receiver annexed.]

FORM No. 2148.

Notice of motion for restitution.14

[Title of appellate court and action.]

[As in Form 815, p. 1171 of this volume, moving the Appellate Division or Court of Appeals for an order:] directing and compelling restitution by the [plaintiff] to the [defendant] of the sum of dollars, with interest thereon from the

day of

19, which sum was collected and received by the sheriff of the county of under and by virtue of the erroneous judgment entered in this action on the

day of

19

and the execution issued thereon, and which said sum has been paid by said sheriff to the [plaintiff] [and that said restitution be made by payment of the said sum to L. M. P., Esq., the receiver of the said defendant], and for such other and further relief as may be just.

[Date.]

[Signature and office address of],

Attorney for [moving party].

[Address to plaintiff's attorneys.]

14 Notice of this application is necessary. Young v. Brush, 18 Abb. Pr. 171.

As to addressing notices after judgment, see Vol. I, p. 388.

This and the preceding and following Forms are sustained by Market Nat. Bank v. Pacific Nat. Bank, 102 N. Y. 464, where, after collection of a judgment in an attachment suit out of the attached property, the attachment, judgment and levy were set aside by the General Term, which order was affirmed by the Court of Appeals, and an order entered at Special Term on the remittitur, making such order that of the Supreme Court. It was held that a motion for restitution was properly made at Gen