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will rely on the trial, and that he make such election by written notice, served upon the defendant's attorney.

That if plaintiff fails to so elect, the second and third causes of action be stricken out as redundant and irrelevant.

That defendant have... dollars, his costs of this motion.
By the court:
J. K., Judge.

§ 946. Notice of motion to strike out answer.

[TITLE OF CAUSE.]

Form No. 305.

...

Take notice, that on the affidavit herewith served, and on the pleadings in this action, the undersigned will move the court, at the courtroom thereof at . . . on the . . . day of . . ., 19 at . . . o'clock in the . . noon, or as soon thereafter as counsel can be heard, to strike out the answer herein as sham [or, the first defense in the answer herein as sham, and the second defense as irrelevant]; or for such other relief as may be just [with costs].

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I. That he is the plaintiff in the above-entitled action. II. That he has read the answer of the defendant, Y. Z., herein, and that the defense of payment therein set up is wholly and absolutely false; that the defendant has never paid, or in any way satisfied, the demand set up in the complaint, nor any part thereof; nor has he ever paid, by himself or his agents, to the plaintiff, or to any of his agents, any part of the sum alleged by the said answer to have been paid.

III. That the only person ever employed by deponent to ask receive money from the defendant is one E. F., whose affidavit is hereto annexed; and that, to the best of deponent's knowledge and belief, no other person ever asked or received anything from the defendant for account of this deponent.

[Or, That the statements of said answer that [here give them] are utterly and absolutely false, and that said answer is a sham answer; and, on the contrary of said statements, the affiant alleges [here contradict the same matters set up.]

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I. That he is a clerk in the employment of the plaintiff, and attends to the collection of the debts due to the latter.

II. That he has frequently asked the defendant for payment of the amount demanded by the complaint in this action, and the defendant has always refused to pay the same, and never has paid any part thereof to deponent, nor, so far as deponent is informed and believes, to any other person.

[JURAT.]

§ 949. Order thereon.

E. F.

[TITLE.]

Form No. 308.

On reading and filing [describe motion papers], and on motion of E. F. for the plaintiff, and after hearing G. H. in opposition thereto, [or, and on proof of due service of notice of the motion, and no one appearing in opposition thereto]:

Ordered, that the answer of the defendant, C. D., in this action be stricken out as a sham, with . . . dollars costs to plaintiff.

$950. Notice of motion to strike out irrelevant, redundant, or scandalous matter.

[TITLE.]

Form No. 309.

Take notice, that upon the pleadings in this action [and the affidavit of C. D. herewith served], the undersigned will move the court, at a special term, to be held at . . . on the . . . day of . . ., 19 . ., at . . . o'clock in the noon, or as soon thereafter as counsel can be heard, to strike out all of the third paragraph of the complaint [or, answer] herein, and so much of the fifth paragraph as is contained between the word

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[or, so much thereof as is contained be" in folio. ., and the word "

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tween the word " in folio. . . ] both inclusive, as irrelevant and redundant [or, as scandalous], and for such other relief as may be just [with costs]. [DATE.]

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[ADDRESS.]

[SIGNATURE.]

§ 951. Notice of motion to substitute officer's successor.

[TITLE.]

Form No. 310.

... "

Please take notice, that on the affidavit of A. B., of which a copy is herewith served, the undersigned will move the court, at a special term thereof, to be held at on the . . . day of 19. ., at . . . o'clock in the . . . noon, or as soon thereafter as counsel can be heard, to substitute W. X., supervisor of the town of . . [or, other official designation], in the place of Y. Z., as plaintiff [or, defendant] in this action; or for such other relief as may be just.

[DATE.]

[ADDRESS.]

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§ 952. Affidavit therefor.

[SIGNATURE.]

[TITLE.]

Form No. 311.

[VENUE.]

. .

M. N., being duly sworn, says that he is the attorney of the plaintiff [or, defendant] in this action; that on the . . . day of last, W. X., of . . ., was duly elected [or, appointed] to the office of of the [town of . ., in the] county of . . . in place of the [defendant, Y. Z.]; and that on the . . . day of . . . last, the said W. X. entered upon the duties of said office, and still holds the same.

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On reading and filing the affidavit of M. N. [and proof of due service of notice], and on motion of M. N., after hearing O. P. [or, no one appearing] in opposition:

Ordered, that W. X., of . . ., [designating official character], be substituted as the [defendant] herein, in place of Y. Z., [and he is hereby required to appear and answer within . . . days. after service of a copy of this order.]

[DATE.]

[SIGNATURE.]

§ 954. Notice of motion by plaintiff to revive action against personal representatives of deceased defendant.

[TITLE.]

Form No. 313.

Take notice, that on the affidavit, of which a copy is herewith served, the undersigned will move the court, at a special term. to be held at . . . on the . . . day of . . ., 19 . ., at ... o'clock in the . . noon, or as soon thereafter as counsel can be heard, for an order directing the above-entitled action to be continued against C. D. and E. F., as executors of the last will and testament [or, administrators of the estate of; or, heirs of] Y. Z., defendant above named, deceased, in the place of said deceased defendant; and granting leave to this plaintiff to amend the complaint herein as he shall be advised; and such other relief as may be just.

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I. That on or about the . . . day of..., 19 he commenced an action in this court against the defendant above named, for [state cause of action, and its condition].

II. That, as deponent is informed and believes, said defendant died on or about the . . . day of . . . last, having first duly made and published his last will and testament, by which, among other things, he appointed L. M. and N. O. his executors, who have proved said will; and that letters testamentary thereon have been duly issued to them by the . . . court of the county

of . . ., and they have duly qualified and undertaken the execution thereof.

III. That said action is still pending and undetermined, and no proceedings to continue it have been taken, to the knowledge of the deponent.

[JURAT.]

§ 956. Order thereon.

[TITLE]

Form No. 315.

[SIGNATURE.]

On reading and filing the affidavit of M. N. [and proof of due service of notice], and on motion of M. N., after hearing O.P. [or, no one appearing] in opposition:

Ordered, that C. D. and E. F., executors of Y. Z., defendant above named, appear and answer the complaint herein within . . . days from the service of a copy of this order upon them; or that, in default thereof, the plaintiff may apply to the court for an order entering their appearance and directing the action. to stand revived and continued against them as executors of said Y. Z.; and that the answer of said X. Y. be then deemed the answer of said executors [or, if no answer had been put in: and that he then have judgment for failure to answer].

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A. B., being duly sworn, says he is the plaintiff [or, defendant; or, the attorney or agent of the plaintiff or defendant] in the above-entitled action, and that [here state facts to be sworn to]. A. B.

Subscribed and sworn to before me, this . . . day of. 19 ..

P. P. F. Vol. I-36

C. D., Notary Public, . . . County.

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