Cornell University Law Library
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Ithaca, New York
Date.,Mar..ch...8.,....lS
Cornell University Library
KFN5992.A2 1910
General rules of practice of the courts
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GENERAL RULES OF PRACTICE
OF THH
^^«; Vo<^< f St A re)
Courts of Record
OF THB
STATE OF NEW YORK
Attention is called to the amended Rules of Practice in Foreclosure Cases,
adopted by the Justices of the Supreme Court, October 12, 19'10, to comply
with the amended Rules of Practice. These rules will be found following
page 708.
By MARCUS T. HUN
Former Reporter of the Supreme Court
Albany
MATTHEW BENDER & CO.
New York
BAKER, VOORHIS & CO.
1910
GENERAL RULES OF PRACTICE
OF THE
Courts of Record
OF THB
STATE OF NEW YORK
WITH
annotations, notes, and references
TENTH EDITION
By MARCUS T. HUN
Former Reporter of the Supreme Court
Albany
MATTHEW BENDER & CO.
New York
BAKER, VOOEHIS & CO.
1910
B653(93
Copyright, 1874, 1877, 1881, 1884, 1887 and 1805
By BANKS & BROTHERS.
Copyright, 1899, 1904 and 1908,
By BANKS & COMPANY.
Copyright, 1910,
By BAKER, VOORHIS & CO.
AND
MATTHEW BENDER & CO.
PREFACE.
The many important amendments to the Rules of Practice of
the Supreme Court, made by the Appellate Division judges at the
recent conventioa in April, 1910, the numerous important changes
made in the Code by the enactment of the Consolidated Laws, and
the decisions of the courts since the last edition in 1906, have
rendered necessary the making of this new edition, from new
type and plates.
All of the original work of Marcus T. Hun, former Supreme
Court Reporter, has been retained and the same brought down
to date.
Attention is called to the fact that indexes are given separately
to both the Rules and the I^otes.
Albany, October 12, 1910.
TABLE OF CONTENTS.
Table showing the corresponding rules of the Supreme Court under the various
revisions 5
Statutes and authorities relating to the adoption, revision and general construc-
tion of Rules 7
Convention of justices to make the General Rules of Practice — Proceedings of . . 11
Convention of justices of 1910 — Proceedings of 25
Supreme Court — Sections of the Code of Civil Procedure affecting that court . . 28
General Rules of Practice 31
Northampton Table of Mortality 463
Carlisle Table of Mortality 465
Rules of the Appellate Division in the several departments:
Rules regulating practice in First Department 467
Rules peculiar to the Second Department 507
Rules peculiar to the Third Department 517
Rules peculiar to the Fourth Department 521
Rules of the New York Surrogate's Court 528
Rules of Kings county Surrogate's Court 543
Rules of City Court of New York 547
Rules of Court of Special Sessions. New York city 555
Rules of the Municipal Court of the City of New York 558
Rules of the Court of General Sessions, City of New York 569
Rules of the Magistrates' Courts, City of New York, 1st Division 576
Rules of the Board of City Magistrates, 1st Division 582
Rules of the Magistrates' Courts, City of New York, 2d Division 586
Rules of the Board of City Magistrates, 2d Division 589
Rules of Court of Claims 693
Rules of State Board of Law Examiners 610
Local rules 613
Judiciary article of the New York State Constitution 697
TABLE SHOWING THE CORRESPONDING RULE.
1880,
1900.
1896.
1884
and
1888.
1877.
1874.
1871.
1858.
1
1
1
1
1 and 2
1 and 2
1 and 2
2
2
2
2
3
3
3
3
3
3
3
4 and 7
3 and 7
3
4
4
4
4
5
4
4
5
5
5
5
8 and 9
8 and 9
5 and 6
6
6
6
6
10
10
8
7
7
7
7
11
11
9
8
8
8
8
12
12
9
9
9
9
9
14
14
11
10
10
10
10
15
15
12
11
11
11
11
16
16
13
12
12
12
12
17
17
13
13
13
13
14
14
14
14
18
18
14
15
15
15
15
19
19
20
16
ri6
117
16
16
20
20
16
17
17
22
22
17
17
18
18
18
18
23 and 24
23 and 24
18
ri9
\20
19
19
26
26
20
19
20
Part of Rule 19
20
21
21
21
21
27
27
39
22
22
22
22
28
28
50
23
23
23
23
29
29
21
24
24
24
24
30
30
22
25
25
25
25
31
31
23
26
26
26
26
33
33
24
27
27
27
27
35
35
56
28
28
28
28
36
36
29
29
29
29
29
37
37
30
30
30
30
30
39
39
32
31
31
31
31
40
40
33
32
32
32
32 and part of 34
41
41
34
33
33
33
33
42
42
35
34
34
34
34
43
43
36
35
35
35
35
44
44
37
36
36
36
36
45
37
37
37
37
46
46
39
38
38
38
38
47
47
40
39
39
39
39
48
48
41
40
40
40
40
49
49
42
41
41
41
41
50
50
43
RULES.
CORRESPONDING RULE — (Continued).
1880,
1900.
1896.
1884
and
1888.
1877.
1874.
1871.
1858.
42
42
43
43
r411
142/
43
43
52
52
46
44
44
45
54
54
48
45
45
44
47
56
56
52
46
46
45
48
57
57
53
47
47
46
49
58
58
54
48
48
f47
\48
50
51
69
60
59
60
68
59
49
49
49
52
61
61
59
50
50
50
63
62
62
61
51
51
51
54
63
63
62
52
52
52
55
64
64
63
63
53
63
56
65
65
64
54
54
54
67
66
66
65
55
65
55
58
67
67
56
56
56
56
59
68
68
67
57
67
57
60
69
69
68
58
58
68
61
70
70
69
59
69
59
62
71
71
70
60
60
60
63
72
72
71
61
61
61
64
73
73
72
62
62
62
65
74
74
73
63
63
63
67
76
76
75
64
64
64
68
77
77
76
65
65
66
69
78
78
77
66
66
66
70
79
79
78
67
67
67
72
81
81
80
68
68
68
73
82
82
81
69
74
83
83
82
69
69
70
75
84
84
83
70
70
71
76
85
85
84
71
71
72
77
86
86
85
72
72
73
78
87
87
86
73
73
74
79
88
88
87
74
74
75
81
90
90
89
75
75
76
82
91
91
90
76
76
77
83
92
92
91
77
77
78
84
93
93
92
78
78
79
85
79
79
80
86
80
80
81
87
81
81
82
88
82
82
82
89
21
21
83
83
84
90
96
96
84
84
85
91
97
97
93
COURTS OF RECORD.
ADOPTION, REVISION AND GENERAL CONSTRUC-
TION OF RULES.
COURT OF APPEALS RULES.
The Court of Appeals may from time to time make, alter, and amend
rules, not inconsistent with the Constitution or statutes of the State, regu-
lating the practice and proceedings in the court. (Judiciary Law, § 51.)
RULES AS TO THE ADMISSION OF ATTORNEYS.
The rules established by the Court of Appeals touching the admission of
attorneys and counselors to practice in the courts of record of the State, shall
not be changed or amended except by a majority of the judges of that court.
A copy of each amendment to such rules must, within five days after it is
adopted, be liled in the office of the Secretary of State. (Judiciary Law,
§ 53, subd. 4.)
Exemptions as to the clerkship required on the examination allowable in the
case of the graduates of certain law schools. (Judiciary Law, § 53, subd. 5.)
THE GENERAL RULES OF PRACTICE.
'The justices assigned to the Appellate Division of the Supreme Court
shall meet in convention at the Capitol, in the city of Albany, on the fourth
Tuesday in October, eighteen hundred and ninety-five, and at least every
second year thereafter. They must also meet from time to time at the
same place whenever called together by at least five of said justices at a time
to be fixed in the said call, a copy of which shall be delivered at least one
week before the time fixed to the presiding justice of each department.
The convention of justices assigned to the Appellate Division must estab-
lish rules of practice not inconsistent with this chapter or the Code of
Civil Procedure, which shall be binding upon all the courts in this State,
and all the judges and justices thereof, except the Court for the Trial of
Impeachments and the Court of Appeals. The rules thus established are
styled 'the General Rules of Practice.' (Judiciary Law, §§ 93, 94.)
Must prescribe the cases in which a discovery or inspection may be com-
pelled. (Code of Civil Procedure, § 804.)
[7]
8 CoTJKTS OF EeCOED.
May prescribe rules of procedure where a commission has been issued by a
court out of the State. (Code of Civil Procedure, § 915.)
May prescribe places of trial of issues. (Code of Civil Procedure, § 976.)
May prescribe as to the settlement of a case and exceptions. (Code of
Civil Procedure, § 997.)
Are applicable to appeals in special proceedings. (Code of Civil Procedure,
§ 1361.)
May prescribe the manner in which notice of application to issue execution
against the estate of a deceased debtor may be given. (C!!ode of Civil Pro-
cedure, § 1381.)
POWER OF CONVENTION.
Rules may be made altering the practice under the Code previously settled
by decisions of the court. (Havemeyer v. IngersoU, 12 Abb. Pr. [N. S.] 301
[Sp. T. 1871].)
The Constitution does not authorize the delegation of the law-making
power to a convention of judges. (Winston v. English, 14 Abb. Pr. [N. S.]
124, 125 [Supr. a. Gen. T. 1873].)
No general rule can be made inconsistent with the Code. (Rice v. Ehele,
55 N. Y. 524 [1874] ; Lakey v. Cogswell, 3 Code R. 116 [N. Y. Com. PI. 1850] ;
French v. Powers, 80 N. Y. 146 [1880]; Palmer v. Phoenix Ins. Co., 22 Hun, 224
DI880]; Gormerly v. McGlynn, 84 N. Y. 284 [1881].)
A rule cannot alter a statutory provision. (Glenney v. Stedwell, 64 N. Y.
120 [1876].)
POWER OF THE COURTS.
All matters of practice are in the first instance in the discretion of the
courts in which the questions of practice arise.
Yet matters of practice come after a certain time to be governed absolutely
by the custom of the courts. (Fisher v. Gould, 81 N. Y. 232 [1880]. See, also,
McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50 [1891].)
'The Supreme Court in the several judicial districts of the State has no
power to create general rules. (Matter of Opening, etc., the Bowery, 19 Barb.
588 [Gen. T. 1855]. See, however. General Rules, Nos. 84 and 46.)
INHEItBNT POWER OF PROCEDURE.
Whatever judicial procedure is essential to enable courts to exercise their
functions is authorized.
The powers of courts are either statutory or those which pertain to them
by force of the common law, or are partly statutory and partly derived from
immemorial usage, the latter constituting the inherent jurisdiction of the
courts. (McQuigan v. D., L & W. R. R. Co., 129 N. Y. 50 [1891].)
JURISDICTION CONFERRED BY THE CONSTITUTION.
The power given to the Supreme Court by the Constitution cannot be limited
by the Legislature or by the Code itself under any legislative authority.
(People ex rel. The Mayor, etc., v. Nichols, 79 N. Y. 582 [1880].)
Geneeal Consteuction of Eules. 9
FORMATION OF THE SEVERAL APPELLATE DIVISIONS.
" There shall be an Appellate Division of the Supreme Court, consisting of
seven justices in the first department, and of five justices in each of the other
departments. In each department four shall constitute a quorum, and the
concurrence of three shall be necessary to a decision. No more than five
justices shall sit in any case." (Const, of 1894, art. 6, § 2.)
WHO MAY WOT SIT IN REVIEW.
"No judge or justice shall sit in the Appellate Division or in the Court of
Appeals in review of a decision made by him or by any court of which he was
at the time a sitting member." (Const, of 1894, art. 6, § 3.)
CASES NOT PROVIDED FOE.
Where its own rules do not cover the case, the court follows the practice of
the King's Bench in England. (Dubois v. Philips, 5 Johns. 235 [Sup. Ct. 1809] ;
Miller v. Stettinei-, 7 Bosw. 695 [Supr. Ct. Sp. T. 1862] ; S. C, 22 How. Pr.
518; Mut. Life Ins. Co. v. Bigler, 79 N. Y. 568.)
PRE-EXISTING PRACTICE.
Although there is no saving in terms of the pre-existing practice, the rules
cannot be deemed to abrogate it, where such practice was not dependent upon
any court rule. (Miller v. Stettiner, 7 Bosw. 696 [Supr. Ct. Sp. T. 1862].)
GENERAL RULES FOLLOWED BY THE COURT OF APPEALS.
The General Eules of Practice established under section 17 of the Code of
Civil Procedure are followed by the Court of Appeals in cases not otherwise
provided for. (People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y.
610-613 [1885].)
Exceptions.] Subdivision 10 of section 791 of the Code of Civil Pro-
cedure, which mentions among preferred causes " a cause entitled to preference
by the General Rules of Practice " does not apply to the practice in the Court
of Appeals. (Nichols v. Scranton Steel Co., 135 N. Y. 634 [1892].)
Section 1361 of the Code of Civil Procedure, providing that appeals from
determinations in special proceedings " are governed by the provisions of this
act and of the General Rules of Practice relating to an appeal in an action,
except as otherwise specially prescribed by law" does not apply to appeals
to the Court of Appeals. (Matter of Southern Boulevard R. R. Co., 128 N. Y.-
93 [1891].)
EFFECT OF EULES.
Rules of courts have the force and effect of statutes. (Matter of Moore,
108 N. Y. 280 [1888] ; People ex rel. The Mayor v. Nichols, 18 Hun, 535 [1879] ;
reversed, but not on this point, 79 N. Y. 582.)
DISREGARDING RULES.
The court may disregard its rules where a proper case is presented. (Clark
V. Brooks, 26 How. Pr. 285 [N. Y. Com. PI. Sp. T. 1864].)
10 COUETS OF BeCOED.
The true object of technical rules is to promote justice or punish injustice.
When they fail of these ends courts should neither encourage nor enforce
them. (People v. Tweed, 5 Hun, 353 [1875]; affd., 63 N. Y. 194.)
The court will not depart from its customary modes of procedure, especially
where such departure tends to infringe on the general rules of the court.
(Battershall v. Davis, 23 How. Pr. 383 [Gen. T. 1861].)
The disregard of the rules will not be allowed to be interposed, as a
defense to a remedy, which would have been open to his adversary in case a
party had followed the rules in his pleading. (Goldberg v. Utley, 60 N. Y.
429 [1875].)
RULES — BY WHAT COURT CONSTRUED.
The rules of the Supreme Court are under its control, and its decision in
reference thereto will not be reviewed by the Court of Appeals. (Evans v.
Backer, 101 N. Y. 289 [1886] ; Martine v. Lowenstein, 68 id. 456, 6 Hun, 225.)
Each court is the best judge of its own rules, and a higher court will not
reverse any construction given to them, not palpably erroneous. (Coleman v.
Nantz, 63 Penn. St. [13 Smith] 178 [Sup. Ct. 1869].)
CONSTRUCTION OF AMENDMENTS OF RULES.
The amendments of the rules of court are analogous to the amendments of
the statutes and should receive the same construction. (Matter of Warde,
154 N. Y. 342 [1897].)
CONSTRUCTION GIVEN TO STATUTES BY RULES.
The rules made by the court, under authority of the Code, may be con-
sidered as giving construction to the statute. (Myers v. Feeter, 4 How. Pr.
241 [Sp. T. 1850]; S. C, 2 Code R. 147.)
PUBLICATION OF RULES.
A rule thus established [in pursuance of the provisions of section 94 of
the Judiciary Law] dogs not take effect until it has been published in the
newspaper published at Albany, designated pursuant to section 82 of the
Executive Law, once in each week for three successive weeks. (Judiciary
Law, § 95.)
A general rule or order of the Court of Appeals does not take effect until
it has been published in the newspaper published at Albany, designated pur-
suant to section 82 of the Executive Law, once in each week for three suc-
cessive weeks. (Judiciary Law, § 95.)
RULES OF THE CITY COURT OF NEW YORK.*
The justices of the court, or a majority of them, may, from time to time,
establish rules of practice for the court not inconsistent with this act or with
the General Rules of Practice established as prescribed in section 94 of the
Judiciary Law. The latter govern the practice in the court, as far as they
are applicable thereto. (Code of Civil Procedure, § 323.)
* The name " Marine Court of the City of New York " was changed to the
" City Court of New York " by chapter 26 of the Laws of 1883.
PROCEEDINGS OF THE CONVENTION OF 1899.
At a convention of the justices of the Appellate Division of the
Supreme Court of the State of New York, held at the Capitol, in
the city of Albany, N. Y., on the 24th day of October, 1S99, at
one o'clock p. m. of that day, the following presiding justices and
associate justices were present:
Hon. CHARLES H. VAN BRUNT, Hon. EDWARD PATTERSON,
Hon. GEORGE C. BARRETT, Eon. GEORGE L. INGRAHAM,
Hon. WHjLIAM RUMSEY, Hon. CHESTER B. McLAUGHLIN,
Of the First Department.
Hon. WILLIAM W. GOODRICH, Hon. JOHN WOODWARD,
Hon. EDGAR M. CULLEN,
Of the Second Department.
Hon. CHARLES E. PARKER, Hon. JUDSON S. LANDON,
Hon. D-CADY HERRICK, Hon. MILTON H. MERWIN,
Of the Third Department.
Hon. GEORGE A. HARDIN, Hon. PETER B. McLENNAN,
Hon. WILLIAM H. ADAMS, Hon. WALTER LLOYD SMITH,
Of the Fourth Department.
On motion of Presiding Justice Van Brunt, it was
Resolved, That Presiding Justice Hardin be requested to act as
chairman of the convention.
On motion of Presiding Justice Van Brunt, Mr. Marcus T. Hun
was requested to act as secretary of the convention.
Presiding Justice Van Btunt stated the purpose of the conven-
tion, referring, among other things, to section 915 of the Code of
Civil Procedure, as amended by chapter 502 of the Laws of 1899,
providing that the General Rules of Practice must prescribe rules
for the procedure where a commission to take testimony within the
State has been issued by a court without the State.
[11]
12 GouETs OF Eecoed.
Justice Ingraham moved that Rule 16 be amended by adding
thereto Eule 17, so that, as amended, Rule 16 would read as
follows :
" Rule 16. The order for granting the application shall specify
the mode in which the discovery or inspection is to be made, which
may be either by requiring the party to deliver sworn copies of the
matters to be discovered, or to allow an inspection with copy, or by
requiring him to produce and deposit the same with the clerk,
unless othervnse directed in the order. The order shall also specify
the time within which the discovery or inspection is to be made,
and when papers, articles or property are required to be deposited
or inspected, the order shall specify the time the deposit or the
opportunity for inspection shall continue.
" The court or judge may direct that the order directing the
discovery or inspection shall operate as a stay of all other proceed-
ings in the case, either in whole or in part, until such order shall
have been complied with or vacated."
Which motion was adopted.
Justice Ingraham moved that Rule 17 be amended so as to read
as follows:
" Rule 17. Application for a subpoena to compel the attendance
of a witness to obtain testimony imder depositions taken within the
State for use without the State, and proceedings thereon.
"The petition prescribed by section 915 of the Code of Civil
Procedure must state generally the nature of the action or proceed-
ing in which the testimony is sought to be taken, and that the
testimony of a witness is material to the issues presented in such
action or proceeding, and shall set forth the substance of or have
annexed thereto a copy of, the commission, order, notice, consent
or other authority under which the deposition is taken. In case
of an application for a subpoena to compel the production of books
or papers, the petition shall specify the particular books or papers
the production of which is sought, and show that such books or
papers are in the possession of or under the control of the witness
and are material upon the issues presented in the action or special
proceeding in which the deposition of the witness is sought to be
taken. Unless the court or judge is satisfied that the application
is made in good faith to obtain testimony within sections 914 and
Peoceedings of the Convention of 1899. 13
915 of the Code of Civil Procedure, he shall deny the application.
Where the subpoena directs the production of books or papers, it
shall specify the particular books or papers to be produced, and
shall specify whether the witness is required to deliver sworn
copies of such books or papers to the commissioner, or to produce
the original thereof and deposit the same with the commissioner.
This subpoena must be served upon the witness at least two days, or
in case of a subpoena requiring the production of books or papers,
at least five days before the day on which the witness shall be com-
manded to appear. A party to an action or proceeding in which a
deposition is sought to be taken, or a witness subpoenaed to attend
and give his deposition may apply to the court to vacate or modify
such subpoena.
" Upon proof by affidavit that a person to whom a subpoena was
issued has failed or refused to obey such subpoena; to be duly
sworn or affirmed ; to testify or answer a question or questions pro-
pounded to him ; to produce a book or paper which he has been
subpoenaed to produce, or to subscribe to his deposition when cor-
rectly taken down, a justice of the Supreme Court or a county
judge shall grant an order requiring such person to show cause
before the Supreme Court, at a time and place specified, why he
should not appear; be sworn or affirmed; testify; answer a ques-
tion or questions propounded; produce a book or paper; or sub-
scribe to his deposition, as the case may be. Such affidavit shall
also set forth the nature of the action or special proceeding in.
which the testimony is sought to be taken, and a copy of the plead-
ings or other papers defining the issues in such action or special
proceeding, or the fact to be proved»therein. Upon the return of
such order to show cause, the Supreme Court shall upon such
affidavit and upon the original petition, and upon such other facts
as shall appear, determine whether such person should be required
to appear; be sworn or affirmed; testify; answer the qxiestion or
questions propounded; produce the book or paper, or subscribe to
his deposition, as the case may be, and may prescribe such terms
and conditions as shall seem proper. Upon proof of a failure or
refusal on the part of any person to comply with any order of the
court made upon such determination, the court or judge shall
make an order requiring such person to show cause before it or
him at a time and place therein specified, why such person should
14 CoTJETS OF E.ECOED.
not be punished for the offense as for a contempt. Upon the re-
turn of the order to show cause the questions which arise must be
determined as upon a motion. If such failure or refusal is estab-
lished to the satisfaction of the court or judge before whom the
order to show cause -is made returnable, the court or judge shall
enforce the order and prescribe the punishment as in the case of a
recalcitrant witness in the Supreme Court."
Which motion was seconded by Presiding Justice Van Brunt,
and was adopted.
Justice Rumsey called attention to the delay attending the publi-
cation of the Session Laws, and read a communication addressed
to the Governor and Legislature of the State of New York on this
subject as follows?
" To the Governor and Legislature of the State of New York:
" The justices of the Appellate Division of the Supreme? Cburt,
in convention assembled, respectfully call your attention to the
fact that the Session Laws for the session of 189^ have not yet
been published or circulated in offiicial form so that they can be
referred to and used.
" The session closed early in May, except for an extra session
held during the latter part of the month, during which several
Session Laws were passed. Many of these laws took effect imme-
diately and some on the first of September, and it is believed that
on that last-mentioned date every one of them was in force. Many
of them are of very considerable importance. They affect not only
the election which is to take place in a very short time, but the
manner of registering voters which has already been completed.
Many of the sections of the Code of Civil Procedure were also
amended during that session. It is impossible to get these in
official form, except from the Secretary of State, until the Session
Laws shall have been published.
" The failure to publish these important laws causes great in-
convenience, and may well bring about public scandal.
" The delay this year has been unexampled in length, but a great
delay occurs every year, and it is rarely that the official copies of
the Session Laws are ready for publication until the first of
September.
Peoceedings oe the Convention of 1899. 15
" We beg leave to suggest that this delay should not be per-
mitted, and to request that some steps be taken to cause an earlier
publication and delivery of the current laws of the State in an
official form.
" Resolved, That the chairman and clerk of this convention
be requested to send to the Governor, the Lieutenant-Governor
and to the Speaker of the Assembly, a copy of this memorial and
resolution."
Which communication, on motion of Justice Ingraham, as ex-
pressing the sense of the convention, was unanimously adopted.
Justice Landon called attention to the imperfect way in which
the indices of the Session Laws were prepared and the want of
uniformity in such indices from year to year, and offered a reso-
lution that the Secretary of State be requested to take more care
in the preparation of such indices, which was adopted.
Justice Ingraham moved that Rule 20 be added to Rule 19, so
that, as amended, Rule 19 would read as follows:
" Rule 19. Every pleading, deposition, affidavit, case, bill, ex-
ceptions, report, paper, order or judgment, exceeding two folios in
length, shall be distinctly numbered and marked at each folio in
the margin thereof, and all copies either for the parties or the court
shall be numbered or marked in the margin, so as to conform to the
original draft or entry and to each other, and shall be indorsed
with the title of the cause. All the pleadings and other proceed-
ings and copies thereof shall be fairly and legibly written or
printed, and if not so written or printed and folioed and indorsed
as aforesaid, the clerk shall not file the same, nor will the court
hear any motion or application founded thereon.
" All pleadings and other papers in an action or special proceed-
ing served on a party or an attorney, or filed with the clerk of the
court, must comply with section 796 of the Code of Civil Pro-
cedure and must be written or printed in black characters ; and no
clerk of the court shall file or enter the same in his office unless it
complies with this rule. The party upon whom the paper is
served shall be deemed to have waived the objection for non-com-
pliance with this rule unless within twenty-four hours after the
receipt thereof he returns such papers to the party serving the
same with a statement of the particular objection to its receipt;
16 COTJETS OF ReCOED.
but this waiver shall not apply to papers required to be filed or
delivered to the court.
" It shall be the duty of the attorney by whom the copy plead-
ings shall be furnished for the use of a court on trial, to plainly
designate on each pleading the part or parts thereof claimed to be
admitted or controverted by the succeeding pleadings."
The question whether Rule 20' should be added to Rule 19 was
put by the chairman, and was decided in the affirmative.
Justice Ingraham moved that Rule 20 be made to read as
follows :
"Rule 20. iService and settlement of interrogatories. — Inter-
rogatories to be annexed to a commission issued under article
second of title three of chapter nine of the Code of Civil Procedure
shall be served within ten days after the entry of the order allow-
ing the commission. Cross-interrogatories shall be served within
ten days after the service of the interrogatories, unless a different
time is fixed therefor by the order allowing the commission. In
case a party shall fail to serve such cross-interrogatories within
the time limited therefor, he shall be deemed to have waived his
right to propound cross-interrogatories to the witness to be exam-
ined under the commission. Either party may, within two days
after the service of the cross-interrogatories, or within two days
after the time to serve cross-interrogatories has expired, serve upon
the opposing party a notice of settlement of the interrogatories
and cross-interrogatorieg before a justice of the court or county
judge. The time at which such interrogatories or cross-inter-
rogatories shall be noticed for settlement shall be not less than two
nor more than ten days after the service of the notice. If neither
party serves such a notice within the time limited therefor, the
interrogatories and cross-interrogatories are to be deemed settled
as served, and shall be so allowed without notice."
Which motion was adopted.
Justice Ingraham moved that Rule 32 be amended so as to
read as follows:
" Rule 32. Whenever it shall be necessary to malce a case, or a
case and exceptions, or a case containing exceptions, the same shall
be made, and a copy thereof served on the opposite party within
the following times:
Peoceedings of the Convention of 1899. 17
" If the trial was before the court or referee, including trials by;
a jury of one or more specific questions of fact in an action triable
by the court, within thirty days after service of a copy of the
decision or report and of written notice of the entry of the judg-
ment thereon.
" In the Surrogate's Court, within thirty days after service of a
copy of the decree or order and notice of the entry thereof.
" If the trial were before a jury, within thirty days after notice
of the decision of a motion for a new trial, if such motion be made
and be not decided at the time of the trial, or within thirty days
after service of a copy of the judgment and notice of its entry.
" The party served may, within ten days thereafter, propose
amendments thereto, and serve a copy on the party proposing the
case or exceptions, who may then, within four days thereafter,
serve the opposite party with a notice that the case or exceptions
with the proposed amendments will be submitted for settlement
at a time and place to be specified in the notice, to the judge or
referee before whom the cause was tried.
" Whenever amendments are proposed to a case or exceptions,
the party proposing such case or exceptions shall, before submitting
the same to the judge or referee for settlement, mark upon the sev-
eral amendments his allowance or disallowance thereof, and shall
also plainly mark thereon and upon the stenographer's minutes the
parts to which the proposed amendments are applicable, together
with the number of the amendment. If the party proposing the
amendments claims that the case should be made to conform to the
minutes of the stenographer, he must refer at the end of each
amendment to the proper page of such minutes. The judge or
referee shall thereupon correct and settle the case. The time for
settling the case must be specified in the notice, and it shall not be
less than four nor more than ten days after the service of such
notice. The lines of the case shall be so numbered that each copy
shall correspond. The surrogate, on appeal from his court, may
by order allow further time for the doing of any of the acts above
provided to be done on such appeals.
" Cases reserved for argument and special verdicts shall be
settled in the same manner. The parties may agree on the facts
proven to be inserted in the case, instead of the testimony, on the
approval of the judge.
2
18 COUETS OF E.ECOED,
" No order extending the time to serve a case, or a case contain-
ing exceptions, or the time within which amendments thereto may
be served, shall be made unless the party applying for such order
serve a notice of two days upon the adverse parties of his intention
to apply therefor, stating the time and place for making such
application."
Which motion was adopted.
Justice Ingraham moved that Eule 36 be amended by striking
out the words " triable by jury " in the first line thereof, so that
said rule should read as follows:
" Rule 36. Whenever an issue of fact in any action pending in
any court has been joined, and the plaintiff therein shall fail to
bring the same to trial according to the course and practice of thes,
court, the defendant, at any time after younger issues shall have
been tried in their regular order, may move at Special Term for
the dismissal of the complaint, with costs.
" If it be made to appear to the court that the neglect of the
plaintiff to bring the action to trial has not been unreasonable, the
court may permit the plaintiff, on such terms as may be just, to
bring the said action to trial at a future term.
" Whenever in any action an issue shall have been joined if the
defendant be imprisoned under an order of arrest, in the action, or
if the property of the defendant be held under attachment, the trial
of the action shall be preferred.
" Every cause placed upon the calendar of the Trial Term or
Special Term for the trial of equity cases shall be moved for argu-
ment or trial when reached in its order, and shall not be reserved
or put over except by the consent of the court unless otherwise
permitted by special rule ; and if passed without being so reserved
or put over, it shall be entered on all subsequent calendars as of
date when passed, and no term fee shall be taxed thereon for any
subsequent term."
Which motion was adopted.
Justice Ingraham moved that Eule 40 be amended by striking
out the first paragraph thereof and substituting the word " enumer-
ated " in the first line of the second paragraph for the word
Peoceedings of the Convention of 1899. 19
" such," and by substituting the word " five " for " eight ""in the
second sentence of the rule as amended so that said rule would
read as follows :
" Rule 40. The papers to be furnished on enumerated motions
at Special Term shall be a copy of the pleadings, when the question
arises on the pleadings or any part thereof, a copy of the special
verdict, return or other papers on which the question arises. The
party whose duty it is to furnish the papers shall serve a copy on
the opposite party, except upon the trial of issues of law, at least
five days before the time for which the matter may be noticed for
argument. If the party whose duty it is to furnish the papers shall
neglect to do so, the opposite party shall be entitled to move on
afiidavit, and on four days' notice of motion that the cause be
struck from the calendar (whichever party may have noticed it for
argument), and that judgment be rendered in his favor.
" The papers shall be furnished by the plaintiff when the ques-
tion arises on special verdict, and by the party demurring on the
trial of issues of law, and in all other cases by the party making the
motion. Each party shall prefix to his points a concise statement
of the facts of the case, with reference to the folios; and if such
statement is not furnished, no discussion of the facts by the party
omitting such statement will be permitted."
Which motion was adopted.
Justice Ingraham moved that Rule 37 be amended so that the
notice of eight days therein be shortened to a notice of five days.
Justice Herrick moved as an amendment thereto that the notice
should continue to be eight days " except that, where the attorneys
for the respective parties reside or have an office in the same city or
village, that then the notice may be a notice of five days," which
amendment of Justice Herrick was accepted by Justice Ingraham,
so that the rule as amended would read as follows :
" Rule 37. All questions for argument and all motions made at
Special or Trial Terms shall be brought before the court on notice
of not less than eight days, unless a shorter time is prescribed by a
judge or court, under section 780 of the Code, by an order to show
cause, except that where the attorneys for the respective parties
20 CbUETS OF Eecoed,
reside or have their offices in the same city or village, such notice
may be a notice of five days. If the opposite party shall not appear
to oppose, the party making the motion shall be entitled to the rule
or judgment moved for, on proof of due service of the notice or
order and papers required to be served by him, unless the court
shall otherwise direct. If the party making the motion shall not
appear, the court shall deny the motion on the filing of the copy,
notice of motion, or order to show cause.
" Such order to show cause shall in no case be granted unless a
special and sufficient reason for requiring a shorter notice than
eight days shall be stated in the papers presented, and the party
shall, in his affidavit, state the present condition of the action, and
whether at issue and, if not yet tried, the time appointed for hold-
ing the next Special or Trial Term where the action is triable. An
■order to show cause shall also (except in the first judicial district)
be returnable only before the judge who grants it, or at a Special
Term appointed to be held in the district in which the action is
triable.
" No order, except in the first judicial district served after the
action shall have been noticed for trial, if served within ten days
of the Trial Term, shall have the effect to stay the proceedings in
the action, unless made at the term where such action is to be tried,
or by the judge who is appointed or is to hold such Trial Term, or
unless such stay is contained in an order to show cause returnable
on the first day of such term, in which case it shall not operate to
prevent the subpoenaing of witnesses or placing the cause on the
calendar.
" When the motion is for irregularity the notice or order shall
specify the irregularity complained of.
" This rule, so far as it permits a judgment by default, or by the
consent of the adverse party, shall not extend to an action for a
divorce, or limited separation, or to annul a marriage.
" In the first judicial district all motions must be noticed to be
heard at and all orders to show cause must be returnable at the
Special Term for hearing of litigated motions except in cases
where the special rules of the first judicial district shall require
such motion to be made at some other term of the court."
Which motion, as amended, was adopted.
Peoceedings of the Convention of 1899. 2,1
Justice Ingraham moved to amend Rule 41, so that the said
rule would read as follows:
" Rule 41. In all cases to be heard in the Appellate Division,
except appeals from non-enumerated motions, the papers shall be
furnished by the appellant or the moving party, and in cases
agreed upon, under section 1279 of the Code, by the plaintiff.
" The party whose duty it is to furnish the papers shall cause a
printed copy of the requisite papers to be filed in the office of the
clerk of the Appellate Division within twenty days after an appeal
has been taken or the order made for the hearing of a cause therein,
or the agreed case filed in the clerk's office, pursuant to section 1279
of the Code ; but if it shall be necessary to make a case or case and
exceptions after the appeal shall have been taken, or the order
made for the hearing in the Appellate Division, the papers shall be
filed within twenty days after the settlement and filing of the case,
and shall serve upon his adversary three printed copies of such
papers ; such papers shall consist of a notice of appeal, if an appeal
has been taken, a copy of the judgment roll, or the decree in the
court below, and the papers upon which it was entered; if no
jvidgment was entered, the pleadings, minutes of trial and the
order sending the case to the Appellate Division, or the order ap-
pealed from, or the papers required by section 12 SO of the Code
of Civil Procedure. To these papers shall be attached the case or
case and exceptions, if it is to be used in the Appellate Division.
All the foregoing papers shall be certified by the proper clerk, or
be stipulated by the parties to be true copies of the original. There
shall be prefixed to these papers a statement showing the time of
the beginning of the action or special proceeding, and of the service
of the respective pleadings, the names of the original parties in
full, and any change in the parties, if such has taken place. There
shall be added to them the opinion of the court below, or an affi-
davit that no opinion was given, or, if given, that a copy could
not be procured. The foregoing papers shall constitute the record
in the Appellate Division. If the papers shall not be filed and
served as herein provided by the party whose duty it is to do so,
his opponent may move the court on three days' notice, on any
motion day, for an order dismissing the appeal, or for a judgment
in his favor, as the case may be.
22 CoTJETS OF Eecoed.
" The papers in all appeals from non-enumerated motions shall
consist of printed copies of the papers which were used in the court
below, and are specified in the order, certified by the proper clerk
or stipulated by the parties to be true copies of the original, and of
the whole thereof. There shall be added to them the opinion of
the court below, or an affidavit that no opinion was given, or, if
given, that a copy could not be procured. They shall be filed with
the clerk within fifteen days after the appeal is taken, and at the
same time the appellant shall serve upon his adversary three
printed copies thereof.
" If the appellant fails to file and serve the papers as aforesaid,
the respondent may move, on any motion day, upon three days'
notice, to dismiss the appeal."
Which motion was adopted.
Justice Ingraham moved to amend Rule BQ so as to read as
follows :
" Rule 56. The referee appointed on such petition must report
as to whether a sale, mortgage or lease of the premises (or any and
what portion thereof) would be beneficial to the infant, lunatic,
idiot or habitual drunkard, and the particular reason therefor, and
whether the infant, lunatic, idiot or habitual drunkard is in abso-
lute need of having some and what portion of the proceeds of such
sale, mortgage or lease, for a purpose provided in section 2348 of
the Code, in addition to what he might earn by his own exertions ;
and such referee shall also ascertain and report the value of the
property or interest to be disposed of, specifically, as to each sepa-
rate lot or parcel, and whether there is any person entitled to dower
or a life estate, or estate for years, in the premises, and the terms
and conditions on which it should be sold.
"And the referee's report shall give such further facts as are
necessary or proper on the application.
" The facts in relation to the value of the property or interest to
be disposed of required to be ascertained and reported upon by the
referee must be proven on such reference by evidence of at least
two disinterested persons, in addition to that of the petitioner, and
the report shall not refer to the petition or any other papers for a
statement of fact."
Which motion was adopted.
Peoceedings of the Convention of 1899. 23
Justice Ingraham moved to amend Rule 62 so as to read as
follows :
" Rule G2, Where lands in the county of New York or the
county of Kings are sold under a decree, order or judgment of
any court, they shall be sold at public auction, between eleven
o'clock in the forenoon and three o'clock in the afternoon, unless
otherwise specifically directed.
" Notice of such sale must be given, and the sale must be had
as prescribed in section 1678 of the Code.
" Such sales in the county of ISTew York, unless otherwise spe-
cifically directed, shall take place at the Exchange Sales Eooms,
Tiow located at No. Ill Broadway, in the city of New York.
" The Appellate Division of the Supreme Court in the first
<iepartment is authorized to change the place at which said sales
shall be made, may make rules and regulations in relation thereto,
and may designate the auctioneers or persons who shall make the
same.
" iSuch sales in the city of Buffalo shall, on and after May 1st,
1896, take place at the Real Estate Exchange Rooms, between the
hours of nine and eleven in the forenoon and two and three o'clock
in the afternoon, unless the court ordering the sales shall otherwise
direct. Such sales shall, however, be made subject to such regula-
tions as the justices of the Supreme Court of the Eighth District
shall establish."
Which motion was adopted.
Justice Ingraham moved to amend Rule 70 by reducing the rate
of interest from five to four per cent. After some discussion Pre-
siding Justice Van Brunt moved that it be referred to a committee
of three to be appointed by the chair to consider Rule 70 and to
report at a future meeting of the convention, which motion was
adopted, and Presiding Justice Van Brunt and Justices CuUen
and Herrick were appointed such committee by the chairman.
Justice Landon offered as a substitute for the resolution already
adopted on his motion, in reference to the Session Laws, the
following :
Resolved, That, in order that the indices of the Session Laws
shall be full, precise, systematic and uniform, it is recommended
24 Courts of Recoed.
that the Legislature make provision for their preparation hj the
reporter of this court, or under his supervision.
Which resolution was adopted.
The chairman appointed Justices Ingraham, Merwin and
Adams as a committee to superintend the publication of the rules
as amended, the same to take effect on the 1st day of January,
1900.
On motion, the convention was then adjourned, subject to a call
to consider the action of the committee relating to Eule 70,
[Attest:] Marcus T. Hun,
Secretary.
PROCEEDINGS OP THE CONVENTION OF 1910.
The convention of justices of the Appellate Division of the
Supreme Oourt, met at the Capitol in the city of Albany, on the
1st day of April, 1910, pursuant to statute, for the purpose of
amending the General Eules of Practice of the Supreme Oourt.
Justice Peter B. McLennan, P. J., Fourth Department, pre-
sided, and called the meeting to order.
On motion of Justice Ingraham, Justice McLennan was selected
as presiding officer of the convention.
In the absence of Mr. Jerome B. Pisher, the Supreme Court
Reporter, his deputy, Mr. Fletcher W. B<attershall, was chosen
secretary of the convention.
The meeting was held pursuant to the following call:
The undersigned justices of the Appellate Division of the
Supreme Court, do hereby call a convention of the justices of
the Appellate Division to meet at the Ciapitol in the city of
Albany on the 1st day of April, 1910, at 12 o'clock noon, to take
action in regard to the amendment of the General Rules of Prac-
tice, and for such other business as may come before the
convention.
PETER B. McLENITAasr, WILLIAM J. OARR,
GEORGE L. INGRAHAM, FRANK G. LAUGHLIN,
ALMET F. JENKS, JOHN PROCTOR CLARKE,
JOSEPH A. BURR, FRANCIS M. SCOTT,
EDWARD B. THOMAS, NATHAN L. MILLER,
CHESTER B. McLAUGHLIN.
On the call of the roll, the following justices of the Supreme
Court answered to their names: Justices Ingraham, Laughlin,
Clarke, Scott, Dowling, Jenks, Burr, Rich, Carr, Smith, Kellogg,
Cochrane, Sewell, Houghton, McLennan, Spring, Williams,
Kruse and Robson.
[25]
26 COUETS OF Eeooed.
Justice Scott presented tlie following resolution:
Whereas, Upon the request made by the committee on Legal
Ethics of the New York State Bar Association, the said associa-
tion has offered to furnish the clerk of the Appellate Division of
each department in the State with a sufficient number of copies
of the canons of ethics adopted at the annual meeting of the
said association in 1909, for the purpose of delivering a copy
of said canons of ethics to each person admitted to the bar of this
State at the time he is sworn in, now therefore,
Resolved, That the suggestion is hereby approved, and that
the clerk of the Appellate Division of each department is
directed to deliver to each person admitted to the bar, at the
time he is sworn in before the Appellate Division in the several
departments, a copy of the canons of ethics adopted by the New
York State Bar Asssociation at its annual meeting held in
Buffalo, on the 28th and 29th of January, 190-9.
The resolution was adopted.
On motion of Justice Rich, all proposed amendments to the
General Rules of Practice were ordered submitted to a committee
to be later announced by the presiding officer of the convention
before being finally acted upon by the convention.
Such committee was announced by the presiding officer of the
convention as follows:
George L. Ingraham, P. J., Walter Lloyd Smith, P. J., Jus-
tice Almet F. Jenks, Justice Peter B. McLennan.
After a lengthy discussion of proposed amendments and other
matters pertaining to the purposes of the convention, an adjourn-
ment was taken to April 30, 1910, in the city of New York.
Minutes of the Convention of Justices of the Appellate Divi-
sion of the Supreme Court, held by adjournment at the court
house of the Appellate Division, First Department, in the county
of New York, April 30, 1910.
The convention was called to order by Justice McLennan.
On motion of Justice Ingraham, Supreme Court Reporter
Jerome B. Fisher was appointed secretary of the convention.
Proceedings of the 'Convention of 1910. 27
The roll being called, tlie following named justices answered
as being present: Justices Ingraham, Laugblin, McLaughlin,
Clarke, Scott, Dowling, Woodward, Jenks, Burr, Smith, Kellogg,
Cochrane, Sewell, McLennan, Spring, Williams, Kruse, Kobson
and Houghton.
On motion of Justice McLennan, a committee of three on
style was ordered to be appointed, to which committee should
be referred all proposed amendments to the rules, before the
same were finally adopted. The committee was announced as
Justice George L. Ingraham, Justice Almet F. Jenks and Jus-
tice Peter B. McLennan.
It was moved by Justice Ingraham, that the original certified
copies of the General Eules of Practice adopted by the conven-
tions held in 1895, 1899, and 1905 be filed with the Secretary
of State and that the secretaries of the several conventions held
in such years be and they are hereby authorized to file the same.
Motion adopted.
Justice Ingraham moved that the secretary of this convention
be directed to cause each rule as amended and adopted by this
convention to be filed in the office of the Secretary of State.
Motion adopted.
Justice Ingraham moved that the secretary of the convention
be directed to cause the amendments adopted to the General
Kules of Practice by this convention to be duly published as
required by law.
Motion adopted.
After full deliberation on the various matters presented for
the consideration of the convention, and the adoption of the rules
as amended, and the adoption of a resolution that the rules as
amended take effect September 1, 1910, the convention adjourned.
Sections of the Code of Civil Procedure and of the Judi-
ciary Law Peculiarly Affecting the Supreme Court.
§ 2. Appellate Division of the Supreme Court in each department — Su-
preme Court — a court of record. See Judiciary Law, § § 2, 3.
§ 4. To have the same jurisdiction as heretofore, except as otherwise
prescribed.
§ 5. Sittings of, are to be public except in certain cases. See Judiciary
Law, § 4.
§ 6. Not to sit on Sundays, except in certain specified cases. See Ju-
diciary Law, § 5.
§ 7. Certain powers of, enumerated.
§§ 8-14. Contempt of court, power to punish, etc. See Judiciary Law, § 750
et seq.
% 17. Rules binding upon all the courts of this State, except the Court for
the Trial of Impeachments and the Court of Appeals — how made
and revised. See Judiciary Law, §§ 93, 94.
§ 18. General rules or orders of, do not take effect until published. See
Judiciary Law, §§ 52, 95.
§§ 19, 20. Calendars of, how printed. See Judiciary Law, §§ 154, 193; County
Law, § 240; State Finance Law, § 46.
§ 21. Appellate Division thereof may order certain papers to be destroyed.
See Judiciary Law, § 87.
§ 25. An action or proceeding not discontinued by a vacancy or change
in the judges of the court.
§ 26. In counties within the first and second judicial districts, a proceed-
ing instituted before one judge continued before another.
§ 27. The seal kept by the county clerk of each county to be the seal of
the Supreme Court of that county. See Judiciary Law, §§ 28,
158, 194. Code Civil Procedure, § 2507.
§ 30. Seal, when lost or destroyed, how replaced. See Judiciary Law, § 29.
§ 31. Court rooms, how provided for. See Judiciary Law, § 42; Greater
N. Y. charter, § 62.
§ 34. Adjournment to a future day — jury summoned for. See Judiciary
Law, §§ 7, 534, 540.
§ 35. Adjournment of a term in the absence of the judge. See Judiciary
Law, § 6.
§ 36. When a court may be adjourned by the sheriff or clerk to a future
day certain. See Judiciary Law, § 6.
§ 37. When trials may take place elsewhere than at the court house.
[28]
Sections of the Code Affecting the Supreme Court. 29
§ 38. When the Governor may change the place for holding courts. See
Judiciary Law, § 38.
§ 39. The action of the Governor to he filed and published. See Judiciary
Law, § 8.
$ 40. When a judge may change the place for holding court. See Judiciary
Law, § 9.
S 41. When a court in actual session may be adjourned to another place.
See Judiciary Law, § 10.
§ 42. How the place for holding courts in New York may be changed. See
Judiciaiy Law, § 11.
S 43. When a court house is unfit for holding court, another place is to be
appointed by the county judge. See Judiciary Law, § 12.
J 44. Effect upon process or proceedings of a failure or adjournment of a
term, or a change in the time or place of holding it.
§ 45. A trial commenced may be continued beyond the time fixed for the
term to continue.
§§ 46-51. Disability of a judge to act or take fees in certain cases. See Ju-
diciary Law, § 15 et seq.
§ 52. Substitution of an oiBcer in special proceedings.
S 53. Proceedings before such substituted officer.
§ 54. Judge to file a certificate of age. See Executive Law, § 29; Judiciary
Law, § 23.
5 56. Examination and admission of attorneys. See Judiciary Law, §§ 53,
56, 88, 460-465, 467.
^§ 60-81. Provisions concerning attorneys. See Judiciary Law and Penal Law.
§§ 82-99. Provisions concerning stenographers, clerk, crier, interpreter, sheriff
and attendants upon court. See Judiciary Law and County Law.
S§ 100-189. Duties, etc., of sheriff or coroner in the execution of civil mandates
— treatment of prisoners — jails — escapes. See Judiciary Law;
Penal Law; Military Law; County Law; Prison Law.
|§ 217-243. Jurisdiction — designation of terms — distribution of business
among the terms and judges — reporter — clerk — attendants —
miscellaneous provisions. See Judiciary law; Executive Law.
§§ 248-250. Reporter of the rSupreme Court — papers and opinions to be fur-
nished to — duties of — price of the reports. See Judiciary
Law; Executive Law.
§§ 251-262. Stenographers appointment and duties of. See Judiciary Law.
I 319. Removal of actions from the New York Marine Court (City Court)
into the Supreme Court.
§§ 343-346. Removal of actions from the County Courts into the Supreme
Court.
§ 354. A judge of the Supreme Court may make certain orders in the County
Court.
§ 605. Injunction restraining a State oificer must be issued by a term of
the Supreme Court sitting in the department in which the officer
is located.
§ 713. When receivers may be appointed.
30 CoTJETs OF Record.
§ 747. Power of the Supreme Court as to money paid into court.
§ 769 ct scq. Motions in Supreme Court — wliere to be heard.
§ 803 et seq. Court may direct discovery of books, etc.
§ 915. Rules of procedure where testimony is to be taken within the State
under a commission from a court out of the State.
§ 970. Regulations as to trial of issues in the Supreme Court.
§ 1056. Additional jurors — justice of Supreme Court may direct the drawing
of. See Judiciary Law, § 527.
§ 1063. Supreme Court may order a special jury to be struck.
§ 1293 et seq. General provisions as to appeals.
§ 1340 et seq. Appeals to Supreme Court, from an inferior court.
§ 1340 et seq. Appeals to the Appellate Division of the Supreme Court.
§ 1356 et seq. Appeal from a final determination in a special proceeding. .
§ 2404. Rroceeds arising upon a sale under foreclosure by advertisement to be
paid into Supreme Court.
§ 2570. Appellate Division may entertain appeals from Surrogates' Courts.
§ 3360 et seq. Proceedings for the condemnation of real property — to be
brought in the Supreme Court — provisions governing the same.
§ 3390. Petition to sell corporate real estate may be presented to the Supreme
Court. See Gen. Corp. Law, § 70; Joint Stock Assoc. Law, § 8.
§ 3420 et seq. Warrant to foreclose a lien on a vessel — application to be
presented to a justice of the Supreme Court at chambers — pro-
visions governing the proceeding. See Lien Law, § 85 et seq.
GENERAL RULES OF PRACTICE.
AS AMENDED TO APRIL 30, 1910, AND IN FOKCE SEPTEMBER i. 1910.
Adopted Pursuant to Section 17 of the Code of Civil Procedure (Judiciary
Law, §§ 93, 94), by the Convention of Justices, Held on the 4th Tuesday
of October, 1899, at the Capitol in the City of Albany.
RULE 1.
Application for Admission as Attorneys.
Within ten days after the first day of January in each year,
the Appellate Division in each department shall appoint a Com-
mittee on Character and Fitness of not less than three for the
department, or may appoint a committee for each judicial district
within the department, to whom shall be referred all applications
for admission to practice as attorney and counselor-at-law, such
committee to continue in office until their successors are appointed.
To the respective committees shall be referred all applications for
admission to practice, either upon the certificate of the iState
Board of Law Examiners, or upon motion under Rule 2 of the
Rules of the Court of Appeals for the admission of attorneys and
counselors-at-law. The committee shall require the attendance
before it, or a member thereof, of each applicant, with the afiidavit
of at least two practicing attorneys acquainted with such appli-
cant, residing in the judicial district in which the applicant re-
sides, that he is of such character and general fitness as justifies
admission to practice, and the affidavit must set forth in detail the
facts upon which the affiant's knowledge of the applicant is based,
and it shall be the duty of the committee to examine each appli-
cant, and the committee must be satisfied "^rom such examination,
and other evidence that the applicant shall produce, that the
applicant has such qualifications as to character and general fitness
as in the opinion of the committee justify his admission to prac-
tice, and no person shall be admitted to practice except upon the
[31]
32 CotTETS OF Eecoed. [Rule 1.
production of a certificate from the committee to that effect, unless
the court otherwise orders.
No applicant shall be entitled to receive such a certificate who
is not able to speak and to write the English language intelligently,
nor until he affirmatively establishes to the satisfaction of the
committee that he possesses such a character as justifies his ad-
mission to the bar, and qualifies him to perform the duties of an
attorney and counselor-at-law.
An applicant for admission to practice as an attorney and
counselor-at-law on motion, under the provisions of Rule 2 of the
Rules of the Court of Appeals for the admission of attorneys and
counselors-at-law, must present to the court proof that he has
been admitted to practice as an attorney and counselor-at-law
in the highest court of law in another State, or in a country whose
jurisprudence is based upon the principles of the common law of
England; a certificate, executed by the proper authorities, that
he has been duly admitted to practice in such S-tate or country;
that he has actually remained in said State or country and prac-
ticed in such court as attorney and counselor-at-law for at least
three years; a certificate from a judge of such court that he has
been duly admitted to practice and has actually continuously prac-
ticed as an attorney and counselor-at-law for a period of at least
three years after he has been admitted, specifying the name of the
place or places in which he had so practiced and that he has a
good character as such attorney. Such certificate must be didy
certified by the clerk of the court of which the judge is a member,
and the seal of the court must be attached thereto. He must also
prove that he is a citizen of the United Staites and has been an
actual resident of the State of ISTew York or of an adjoining State,
for at least six months prior to the making of the application,
giving the place of his residence by street and number, if such
there be, and the length of time he has been such resident. He
shall also submit the affidavits of two persons who are residents
of the judicial district in which he resides, one of whom must
be an attorney and counselor-at-law, that he is of such character
and general fitness as justifies admission to practice, and the affi-
davit must set forth in detail the facts upon which the affiant's
knowledge of the applicant is based. In all cases the applicant
must appear in person before the court on the motion for his
Hule 1 ] Geneeal Rules of Pbactioe. 33
admission, and also before the committee on character and fitness
for the district in which the application is made. When the appli-
cant resides in an adjoining State, and a motion is made to admit
him to practice in this State without actual residence herein, in
addition to the foregoing facts, the applicant must prove to the
satisfaction of the court that he has opened and maintains an
office in this State for the transaction of law business therein.
In all cases the applicant for admission must file with the
clerk of the Appellate Division of the proper department the
papers required for his admission as hereinbefore specified prior
to or at the time of the motion for admission to practice.
Rule 1 of 1858, amended. Rule 1 of 1871, amended. Rule 1 of 1874,
amended. Rule 2 of 1858, amended. Rule 2 of 1871, amended. Rule 2
of 1874, amended. Rule 1 of 1877, amended. Rule 1 of 1880, amended.
Rule 1 of 1884. Rule 1 of 1888, amended. Rule 1 of 1896. Rule 1 aa
amended, i910.
CODE OF CIVIL PROCEDURE.
§ 14. Attorneys and counselors may be punished for misconduct. See
Judiciary Law, § 753.
§§ 49, 50. A judge, the partner of a judge and a judge's clerk — cannot
practice in his court, nor in an action or special proceeding which
has been before him. See Judiciary Law, §§' 17, 18, 21, 471.
§ 55. A party may appear in person or by attorney.
§ 56. Examination and admission of attorneys. See Judiciary Law,
§§ 53, 56, 88, 460-465, 467.
§ 57. Rules, how changed. See Executive Law, § 30; Judiciary Law,
§ 53.
§ 58. Exemptions to graduates of certain law schools. See Judiciary Law,
§ 53.
S 60. Attorneys residing in adjoining States.
§ 61. Clerks, etc., not to practice. See Judiciary Law, § 250.
§ 62. Sheriffs, etc., not to practice. See Judiciary Law, § 473.
§ 63. None but attorneys to practice in New York city. See Penal Law,
§ 271.
§ 64. Penalty for violating or sufifering violation of last section. See Penal
Law, §§ 272, 1877.
§ 65. Death or disability of attorney, proceedings thereon.
I 66. Attorney or counsel's compensation — - lien for. See Judiciary Law,
§§ 474, 475.
I 67. Removal or suspension for malpractice, etc. See Judiciary Law,
§§ 88, 477.
§ 68. Must be on notice — expenses, how paid. See Judiciary Law,
§§ 88, 476.
§ 69. Removal or suspension, how to operate. See Judiciary Law, § 478.
3
34 Courts of Eecoed. [Rule 1
§ 70. Punishment for deceit, etc. See Penal Law, § 273.
§ 71. Punishment for wilful delay of action. See Penal Law, § 273.
§ 72. Attorney not to lend his name. See Judiciary Law, § 479.
§ 73. Attorney not to buy claim. See Penal Law, § 274.
§ 74. Procuring claims to be placed in his hands or those of another per-
son for prosecution, forbidden. See Penal Law, § 274.
§ 75. Penalty therefor. See Penal Law, § 274.
§ 76. Limitation of sections 73, 74, 75. See Penal Law, § 275.
§ 77. Rule the same, when a party prosecutes in person. See Penal Law,
§ 276.
§ 78. Partner of public prosecutor not to defend prosecutions. See Penal
Law, § 278.
5 79. Attorney not to defend where he has been public prosecutor. See
Penal Law, § 278.
§ 80. Penalty therefor. See Penal Law, § 278.
§ 81. An attorney may defend himself civilly or criminally. See Penal
Law, § 279.
§ 193. Court of Appeals to make rules for the admission of attomej^s. See
Judiciary Law, §§ 51, 53.
§ 565. When privileged from arrest. See Civil Rights Law, § 24.
§ 835. Attorneys and counselors not to disclose professional communica-
tions.
J 1030. They are exempt from jury duty. See Judiciary Law, § 546.
§ 1995. Appearance by, in proceedings by State writ.
§ 2495. Surrogate, when not to practice — Monroe county surrogate.
§ 2509. Surrogate's clerk or other person employed in surrogate's office not
to act as attorney before the surrogate.
§ 2528. Appearance by an attorney in the Surrogate's Court.
§ 2529. A surrogate's son or father not to practice before him or be em-
ployed as an attorney. See Judiciary Law, § 472.
§ 2886. Apj^earance by an attorney in a Justice's Court.
§ 2889. ^Yho may act as attorney in Justice's Court — constable, law partner
or clerk of justice, cannot act as an attorney before the justice.
See Penal Law, §§ 271, 272.
§ 3116. Justice of the peace, sixth judicial district of the city of Brooklyn,
to be an attorney.
§§' 3247, 3278. Liability of attorneys for costs.
See notes under Rules 10 and 11.
ADMISSION OF ATTORNEYS.
RULES OF THE COURT OF APPEALS. See upon this subject and the
matters pertaining to it the Court of Appeals Practice by Edmund H. Smith.
(See, also, Judiciary Law, §§ 53, 56, 88, 460-465, 467; Code of Civil Pro-
cedure, § 60.)
Laws of 1886, chap. 425; 1894, chap. 760, and 1895, chap. 046.
ATTORNEYS AND COUNSELORS — Construction of rules, for admission
of attorneys, interpreted.] (Matter of Ward, 154 N. Y. 342 [1897].)
Kule 1] Geneeal Rules of Peactice. 35
Race or sex does not debar.] Race or sex is no cause for refusing per-
sons admission to practice as attorneys and counselors-at-law. (Judiciary Law,
i 467.)
Citizenship of applicants for admission.] An applicant for admission
who has practiced for three years in another country must show among '" the
other qualifications required " that he is a citizen of the United t>tates at the
time of making his application; the fact that he has declared his intention to
become a citizen is not enough. (Matter of O'Neill, 90 N. Y. 584 [1882].)
OflSces distinct. Although candidates for admission to the bar were,
before the adoption of the Code of Civil Procedure, admitted as attorneys and
counselors at the same time, yet the offices were still distinct. (Easton v.
Smith, 1 E. D. Smith, 318 [N. Y. Com. PI. 1852] ; Brady v. Mayor, etc., of
New York, 1 Sandf. 569 [N. Y. Supr. Ct. 1848].)
Ofdce of public trust within the Constitution.] Whether an attorney
or counselor holds as such an office of public trust, within the meaning oi
the Constitution, considered. (Seymour v. Ellison, 2 Cow. 13.)
Not a State ofEcer.] He is not an officer of the State. (Jlatter of
Burchard, 27 Hun, 429 [1882].)
An attorney is a public officer within the Nonimprisonment Act,
chap. 300 of 1831.] An attorney is a public officer within the provis ons of
the act of April 26, 1831, abolishing imprisonment for debt. (Waters v.
Whittemore, 22 Barb. 593; Matter of Wood, Hopk. 6. See contra, Matter of
Oaths Taken by Attorneys, etc., 20 Johns. 492.)
Requirements as to publication of rules as to admission of attorneys,
directory.] The requirements of section 57 of the Code of Civil Procedure are
merely directory, and a failure to comply with them in regard to the pub-
lication of the Coiu't of Appeals rules relating to the admission of attorneys
does not render such rules invalid. (Matter of Maxwell, 38 St. Rep. 479
[Supm. Ct. 1891].)
Filing certificate nunc pro tunc] A law student cannot file a regents'
certificate of examination nunc pro tunc. (Matter of Moore, 108 N. Y. 280
[1888]; Matter of Mason, 140 id. 658 [1833]; Matter of Klein, 155 id. 696
[1898].)
STUDY — Course of.] As to the requisite education and course of study,
see Court of Appeals Practice by Ed.nund H. Smith. Piules taking effect
July 1, 1907, did not require a law school to certify that its studenfs had
been graduated or had received a degree, but it is suffiv^ient to stat ■ that
the student successfully completed the prescribed course of study duri ij the
pericd named. (Matter of N. Y. law School, 190 N. Y. 215.)
ADMISSION — Power of Supreme Court over — exclusive.] The p'ineral
power over attorneys is exclusively in the Supreme Court. (Willni ut v.
Meserole, 16 Abb. [N S.] 308 [N. Y. Supr. Ct. Sp. T. 1875].)
The court acts judicially.] Courts, in admitting attorneys ( and
expel'ing them from, the bar act judicially, and their decision in sur nro-
ceedins-s is subject to review on writ of error or appeal, as the case m " be.
(Bradwell v. The State, 16 Wall. 130-135 [1872].)
Application for — is a special proceeding — an order denying 't is
36 Courts of Eecobd, [Rule 1
appealable.] Tlie application for admission is a special proceeding, and an
order denying the right of the applicant to admission is appealable to the
Court of Appeals. (Matter of Cooper, 22 N. Y. 67 [I860]; S. C, 11 Abb. Pr.
301.)
For proceedings in Supreme Court, after decision in the Court of
Appeals, see 11 Abbott's Practice, 337.
— ' — Good character of applicant — decision of Appellate Division of the
Supreme Court conclusive.] Where the justices of the Supreme Court pass
unfavorably upon the good character of an applicant for admission as an
attorney, their decision is not reviewable on appeal. (Ex parte Beggs, 67
N. Y. 120 [1876]; In re Graduates, U Abb. 301, distinguished [Court of
Appeals, I860].)
Admission to practice denied to attorney from Italy.] An application
by a naturalized citizen, who had for more than three years practiced in the
higher courts of the kingdom of Italy, for admission to the New York bar,
denied, on the ground of the difference between the system of jurisprudence
in that country and this. (Matter of Maggio, 27 App. Div. 129 [1898].)
REGISTRATION OF ATTORNEYS — Practicing attorneys are required to
register.] (See Judiciary Law, § 468.)
Filing of an oath nunc pro tunc] The Court of Appeals has no
power, on original motion, to order the filing nunc pro tunc of an attorney's
oath for the purpose of registration. (Matter of Caruthers, 158 N. Y. 131
[1899].)
OATH — Of ofBce.] Each person admitted must, upon his admission, take
the constitutional oath of office in open court, and subscribe the same in a
roll or book, to be kept in " the office of the clerk of the Appellate Division
of " the Supreme Court for that purpose. (Judiciary Law, § 466.)
Of allegiance.] The act of Congress of January 24, 1865 (13 Statutes
at Large, 424), requiring all persons admitted to practice in the United
States Courts to take the oath prescribed by the act of July 2, 1862 (12
Statutes at Large, 502), is unconstitutional. (Ex parte Garland, 4 Wall. 333
[U. S. Sup. Ct. 1866].)
DISBARMENT — General power of the court.] The general authority and
control of the court over attorneys was not taken away or limited by the
Code of Civil Procedure except in the special cases therein mentioned. (In re
H , 87 N. Y. 521 [1882].)
Power of Appellate Division to disbar attorney — disbarment in addi-
tion to criminal prosecution.] The Appellate Division of the Supreme Court
has power, under Code of Civil Procedure, section 67, to disbar an attorney
for professional misconduct, regardless of a possible or pending indictment.
If the charge involves a felony or a misdemeanor entirely distinct from the
party's professional action, the court will stay its hand until the criminal
trial has taken place; but if the charge involves professional misconduct,
the fact that some of the acts complained of are felonies and that indict-
ment may follow, is no reason for staying the proceeding to disbar. (Eoches-
tfr Bar Assn. v. Dorthy, 152 N. Y. 596 [1897].)
Duty of the court.] It is the duty of the court, whenever a case ia
Kule 1] Genebal Rules of Practice. 37
presented charging an attorney-at-law with dishonest conduct in his pro-
fessional character, and the case is properly proved, to administer the proper
punishment by removing him from his office. (In the Matter of Ryan v.
Opdyke, 143 N. Y. 528 [1894].)
Not used to settle quarrels.] It is not the province of the General
Terra of the Supreme Court to interfere in quarrels between a client and his
attorney, except where the latter has been guilty of such unprofessional and
dishonest conduct as requires his disbarment or discipline in other ways.
(Berks v. Hotchkiss, 82 Hun, 27 [1894].)
Misappropriation of client's money.] Where attorney is charged with
misappropriating money belonging to client and the money is subsequently
refunded, the court will not permit the discontinuance of the proceedings,
but will appoint a referee to inquire what action should be taken by the
court. The court is not to be used merely as a means for the collection by
a client of his claim against his attorney. (Matter of Rockmore, 130 App.
Div. 586.)
Power of court.] Power to disbar an attorney for unfitness is not
affected by the fact that the charges upon which disbarment proceedings are
instituted rest upon him as an individual apart from professional misconduct.
(Matter of Bauder, 128 App. Div. 346.)
Powers of reviewing courts.] In a proceeding to discipline an attorney
the power of review in the Court of Appeals ends when it appears that the
proceeding has been instituted and conducted in accordance with the statutes
a:id rules authorizing it; that no substantial legal right of the accused has
been violated; that no prejudicial error has been committed in the reception
or exclusion of testimony, and that there is some evidence to sustain the
findings upon which the order is based. The power and discretion of the
Appellate Division in the infliction of punishment when guilt is established
are not subject to review in the Court of Appeals. (Matter of Goodman
[1910], 199 N. Y. 143.)
Punishment and remedy — ^by summary proceedings — not by action.]
Where an attorney is in contempt for an act inconsistent with his relation
to the court as attorney, and suitors have sustained damage, the remedy as
well as the punishment must be by summary proceedings, and not by action.
(Foster, Receiver, v. Townshend, 68 N. Y. 203 [Court of Appeals, 1877].)
Admission to and removal from practice by Appellate Division]
1. Upon the certificate of the State Board of Law Examiners, that a person has
passed the required examination, if the Appellate Division of the Supreme
Court in the department in which such person lives shall find such person is
of good moral character, it shall enter an order licensing and admitting him
to practice as an attorney and counselor in all courts of the State.
2. An attorney and counselor who is guilty of any deceit, malpractice,
crime or misdemeanor, or who is guilty of any fraud or deceit in proceedings
by which he was admitted to practice as an attorney and counselor of the
courts of record of this State, may be suspended from practice or removed
from office by the Appellate Division of the Supreme Court. Any fraudulent
act or representation by an applicant in connection with his admission shall
38 CouETS OF Kecoed. [Rule 1
be sufficient cause for the revocation of his license by the Appellate Division
of the Supreme Court granting the same.
3. Whenever any attorney and counselor-at-law shall be convicted of a
felony, there may be presented to the Appellate Division of the Supreme
Court a certified and exemplified copy of the judgment of such conviction,
and thereupon the name of the person so convicted shall, by order of the
court, be stricken from the roll of attorneys.
4. Upon a reversal of the conviction for felony of an attorney and coun-
selor-at-law, or pardon by the President of the United States or Governor
of this State, the Appellate Division shall have power to vacate or modify
such order or debarment.
5. The presiding justice of the Appellate Division making the order of
designation of a district attorney within the department to prosecute a
case for the removal or suspension of an attorney or counselor, or the order
of reference in such cases, may make an order directing the expenses of
such proceedings to be paid by the county treasurer of the county where the
attorney or counselor removed or suspended, or against whom charges were
made as prescribed . in section 476 of this chapter, had his last known place
of residence or principal place of business, which expenses shall be a charge
upon such county. (Judiciary Law, § 88.)
Before an attorney or counselor is suspended or removed as prescribed
in section 88 of this chapter, a copy of the charges against him must be
delivered to him personally, or, in case it is established to the satisfaction
of the court that he cannot be served within the State, the same may be
served upon him without the State by mail or otherwise as the court may
direct, and he must be allowed an opportunity of being heard in his defense.
It shall be the duty of any district attorney within a, department, when so
designated by the Appellate Division of the Supreme Court, to prosecute all
cases for the removal or suspension of attorneys and counselors. (.Judiciary
Law, § 476.)
Any person being an attorney and counselor-at-law who shall be convicted
of a felony shall upon conviction cease to be an attorney and counselor-at-
law, or to be competent to practice law as such. (Judiciary Law, § 477.)
Under control of court.] An attorney remains after his disbarment
subject to the power of the court which may return to client money wrong-
fully withheld. (Matter of Burnham, 58 Misc. 576; Matter of Mcintosh, 112
X. Y. Supp. 513; Matter of Shanley, 57 Misc. 8.)
Proceedings proper for.] An order to show cause, founded upon proper
papers presented, served with the papers upon the attorney personally, is the
proper mode of proceeding. (In re Percy, 36 N. Y. 651 [1867]; Ex parte
Eobinson, 19 Wall. 505 [1873].)
Court to institute proceedings — proper practice.] An attorney gave
notice of a motion at General Term on behalf of his client for the respondent
to show cause why an order should not be made striking his name from the
roll for certain alleged acts of misconduct set forth in the moving papers.
Held, that all proceedings to disbar or suspend attorneys and counselors should
originate in the action of the court itself. Every person desiring such investi-
Eule 1] Gkneeal Rules of Peactice. 39
gation should, in the first instance, present to the court affidavits or other
authentieal papers for its examination preliminary to any proceeding. In a
proper case the court will institute the proceedings of its own motion. (In the
Matter of Brewster, 12 Hun, 109 [Gen. T. 1877].)
The court may act summarily.] The court has power to inquire into
the right of an attorney to practice, and to revoke his license in a summary
proceeding. (Matter of Burchard, 87 Hun, 429 [1882].)
An attorney is not an officer of the State. (lb.)
Court will await result of trial.] Where attorney is charged with
felony court will await result of criminal trial before disbarring. (Rochester
Bar Ass'n v. Dorthy, 152 N. Y. 596.)
Commission to take testimony — irregular.] In proceedings to disbar
an attorney, the court has not authority, except M-ith the consent of the
attorney, to issue a commission to take testimony out of the State. (In the
Matter of an Attorney, 83 N. Y. 166 [1880].)
Waiver of irregularity.] (As to the right of an attorney to waive
irregular proceedings, see Matter of an Attorney, 86 N. Y. 563 [1881].)
Unwarranted proceeding to disbar is not a contempt of court.] It
seems, that the court has no power to punish as for contempt a client whose
application to have his attorney disbarred proved totally unwarranted.
(Matter of Dunn, 27 App. Div. 371 [1898].)
WHAT JUSTIFIES DISBARMENT. (See causes stated in sections cited,
supra. )
A felony forfeits the ofEce.] An attorney and counselor-at-law who
shall be convicted of a felonj' shall, upon such conviction, cease to be an
attorney and counselor-at-law, or to be competent to practice law as such.
Judiciary Law, § 88. See also. Bank of N. Y. v. Stryker, 1 Wheeler's Crim.
Cas. 330; Matter of Niles, 48 How. Pr. 246 [N. Y. Com. PI. G<;n. T. 1875].)
What crime does not forfeit his ofSce.] A criminal act, subjecting an
attorney to indictment, does not work a forfeiture of his oifice, unless the
crime is of a base nature. (Bank of N. Y. v. Stryker, 1 Wheeler's Crim. Cas.
330.)
A crime, notwithstanding its pardon, may be considered.] Where an
attorney has been convicted of forgery and thereafter pardoned by the Gov-
ernor, it was held that the pardon did not affect the right of the court to
punish him for professional misconduct involved in the offense. (Matter of
Attorney, 86 N. Y. 563 [1881].)
Bad moral character. ] To warrant a removal, the character must be
bad, in such respect as shows the party unsafe and unfit to be trusted with
the powers of the profession. When there can be no reliance upon the word
or oath of a party, he is manifestly disqualified. (In re Percy, 36 N. Y. 654
[1867].)
Changing the verification of a pleading.] An attorney who has changed
the verification of a pleading disbarred because thereof. (Matter of Loew, 5
Hun, 462 [Gen. T. 1875].)
Use of an undertaking on a second application.] An attorney, without
re-execution of an undertaking, presented it to another court after it had been
4:0 Courts of Kecoed. [Rule 1
used upon an unsuccessful application. Held, that said attorney should be sus-
pended for two years for his misconduct. (Matter of Goldberg, 61 St. Rep.
277 [Supm. Ot. 1894].)
Fraudulently imposing upon the court is good ground for suspension
from practioe.] The interposition by an attorney-defendant, as a counterclaim,
of a cause of action of which he had procured an assignment to himself, and
which had been merged in a judgment entered upon stipulation in a former
action in which he had been an attorney and so imposing upon the court, and
the concealment of a material fact in the cause, which was a fictitious con-
troversy, and both sides of which he controlled, held to be sufficient cause for
suspending him for two years. (Matter of V , 10 App. Div. 491 [1898].)
Deceit or malpractice.] Facts sufficient to sustain an -order of disbar-
ment on the ground of deceit or malpractice. (Matter of Randel, 158 N. Y.
216 [1899]; Ex parte Loew, 5 Hun, 462 [Gen. T. 1875].)
Deceit, defined.] The use of the word " deceit " in section 67 of the Code
of Civil Procedure, in regard to the disbarment of attorneys, implies wrong
Insinuations or the concealment of facts with intent to mislead the court or
injure persons on the part of an attorney while acting professionally. (Matter
of Post, 26 St. Kep. 640 [Supm. Ct. 1889].)
Malpractice, defined.] The use by an attorney of methods and practices
unsanctioned and forbidden by law is defined by the word malpractice in ref-
erence to lawyers, and means evil practice while acting professionally. (Mat-
ter of Baum, 30 St. Rep. 174 [Supm. Ct. 1890].)
Deceit, practiced in his character as such, though not in a suit.] If
deceit ia practiced by a solicitor in his character as such, although not in a
suit pending in the court, he may be removed from his office as solicitor.
(Matter of Peterson, 3 Paige, 510 [1832].)
Failure to pay over money.] An attorney should be disbarred who has
several times by summary order been directed to pay over money in his hands,
arid who, in a criminal proceeding, has retained money given him to settle
such proceeding, and who has unlawfully possessed himself of mortgaged chat-
tels and has been found guilty of other fraudulent acts. (Matter of Titus, 50
St. Rep. 636 [Supm. Ct. 1892].)
— — Deceiving client.] Attorney who to secure his fee settles with a party
against whom he was retained to enforce claims and assigns his contracts
with his clients to enforce such claims and notifies them to settle directly
with the other party, held guilty of malpractice. (Matter of Clark, 184 N. Y.
222.)
Using funds belonging to estate.] Using funds belonging to estate and
borrowing money from administrator, etc., held to warrant suspension. (Mat-
ter of Freedman, 113 App. Div. 327.)
Purchasing fraudulent certificate.] Attorney who by fraud and deceit
procured his admission to practice by purchasing certificate that he had been
admitted in the courts of New Jersey, and on which a court seal had been
falsely imposed, disbarred. (Matter of Leonard, 127 App. Div. 492.)
Payment of money for adjournments of court, etc.] Attorney who paid
money to an assistant clerk of court for adjournments, etc., disbarred. (Mat-
ter of Boland, 127 App. Div. 746.)
Kule 1] Geneeal Kules of Practice. 41
Concealment of fact of conviction.] Concealment by foreign attorney
applying for admission in this State of the fact that he had been convicted
of a crime in such foreign State calls for disbarment; and it does not affect
the result that he was pardoned unconditionally by the Governor of the foreign
State or that hia conviction was subsequently decided to be unjust. (Matter
of Pritchett, 122 App. Div. 8.)
Frauds upon clients.] Attorney who verified and filed objections to the
probate of a will against the wishes of his client, suspended for two years.
(Matter of Randall, 122 App. Div. 1.)
Attorney disbarred for obtaining possession and control of property belong-
ing to an insolvent client in fraud of creditors, for effecting the security of
a single client in violation of the Bankruptcy Act, and for perjury and sub-
ornation of perjury in the bankruptcy proceedings. (Matter of Joseph, 135
App. Div. 589.)
Attorney disbarred because when retained on a contingent fee he continued
to prosecute the trial of an action and asserted his client's right to a verdict
after having discovered that the case was founded upon perjured evidence.
The rule that a person cannot be convicted upon the uncorroborated testi-
mony of an accomplice does not obtain in its strictness in a proceeding to
disbar an attorney. (Matter of Hardenbrook, 135 App. Div. 634.)
Attorney disciplined by suspension from practice for two years for fraud
and chicanery, in that he drew an answer denying knowledge of facts which
were true to his own knowledge, attempted to induce the court to accept false
answers to impede a recovery of judgment where there was no defense, and
drew deeds whereby hia client attempted to place Iiis property beyond the
reach of creditors. (Matter of Goodman, 135 App. Div. 594.)
Attorney disbarred for expending on his own account moneys collected for
his client and concealing from the latter the fact that the same had been
collected. (Matter of Gifuni, 137 App. Div. 361.)
Attorney disbarred for obtaining money upon the false representation that
he had been retained in an action, and for converting the sum so obtained to
his personal use. (Matter of Andrews, 137 App. Div. 353.)
Taking testimony upon written interrogatories.] Proceeding to disbar
an attorney is a special proceeding, and the Appellate Division has the power
under section 888 of the Oode of Civil Procedure to issue a commission on the
application of parties moving for a disbarment to take teatmony upon written
interrogatories. (Matter of Spencer, 137 App. Div. 330.)
Regularity of criminal prosecution will not be inquired into.] The
regularity of a criminal prosecution wherein an attorney was convicted of mur-
der in the first degree by a court of competent jurisdiction will not be inquired
into on a motion to strike his name from the roll of attorneys. (Matter of
Patrick, 136 App. Div. 450.)
To aid in manufacturing evidence tending to deceive.] The fact that
an attorney aids in manufacturing evidence which, though not absolutely false,
tends to deceive, will justify his disbarment. (Ex parte Gale, 75 N. Y. 526
[1879].)
As to the necessity for proof of a fraudulent motive to justify disbarment,
see note to 18 L. R. A. 401.
42 CoDETS OF Recoed. [Rule 1
WHAT IS NOT PUNISHED BY DISBARMENT — Instituting without cause
proceedings to disbar another attorney — he is chargeable with costs.] When
an attorney, from improper motives and without jus,t cause, institutes pro-
ceedings to procure the removal from the bar of another attorney, he is prop-
erly chargeable with the costs and disbursements incurred in such proceedings.
(In the Matter of Kelly, 62 N. Y. 198; S. C, 3 Hun, 636 [Gen. T. 1875].)
Writing to judge who tried case.] Writing to justice who tried case,
complaining of his conduct and by inference reflecting on the integrity of the
court, held highly objectionable but not warranting greater punishment than
reprimand. (Matter of Manheim, 113 App. Div. 136.)
Scandalous matter in pleading. The responsibility for the insertion of
irrelevant and scandalous matter in pleadings rests upon the attorney prepar-
ing the same and he is chargeable with the costs of a motion to have such
matter stricken therefrom. (McVey v. Cantrell, 8 Hun, 522 [Gen. T. 1876].)
Action by, as a party, not ground for his disbarment.] Acts committed
by an attorney as a party to a suit do not afford grounds for his disbarment.
(Matter of Post, 26 St Eep. 640 [Supm. Ct. 1889].)
Double punishment.] The disbarment of an attorney for acts committed
as a party to a suit, and for which he has paid the penalty, would be a double
punishment and should not be inflicted. (lb.)
An attorney taking vexatious proceedings for delay, censurable.] When,
in u criminal case, all the forms of law have been observed and the defendant
has had every opportunity to make his defense, and his conviction has been
affirmed by the highest court of the State, the contest in the courts should end.
As to whether, it being the duty of attorneys and counselors of the courts
of this State to aid in the administration of justice, if they in such case engage
in vexatious proceedings, merely for the purpose of undermining the final judg-
ment of the courts and defeating the law, they do not expose themselves to
the disciplinary power of the Supreme Court, qucere. (People of the State of
New York v. Jugho, 128 N. Y. 589 [18«1].)
Imprisonmient for the non-payment of a fine.] Upon the failure of the
attorney to pay the amount of costs and disbursements awarded against him.
a precept may lawfully issue committing him to the county jail until such
payment be made. (In the Matter of Kelly, 62 N. Y. 198; S. C, 3 Hun, 636
[Gen. T. 1875].)
Return of records by — how enforced.] How an attorney should be
compelled to return an affidavit taken from the clerk's office. (Wood v. Kroll,
43 Hun, 328 [Gen. T. 1887].)
Actions and conduct held censurable.] Making affidavits upon which he
secured extension of time to serve complaints in actions which he had been
instructed to discontinue, held sufficient to warrant suspens,ion from practice
for one year. (Matter of Hanses, 120 App. Div. 377.)
Attorney admonished but not suspended for allowing collecting agency to
send out under his name dunning letters containing false statement that an
action had been brought against the debtor. (Matter of Hutaon, 127 App. Div.
492.)
Act of attorney in inducing complainant to withdraw a charge of petit lar-
Eule 1] Geneeal Rules of Peactice. 43
<.-€nj by the payment of money held censurable. (Matter of Woytisek, 120
App. Div. 373.)
Fact that an attorney when testifying upon a criminal trial against a third
person refuses to answer certain questions on the ground that the answers
might tend to incriminate him will not justify his disbarment. (Matter of
Ivaffenburgh, 188 N. Y. 49.)
Attorney not responsible, when acting as agent for client, for debts con-
tracted. (Argus Co. V. Hotchkiss, 121 App. Div. 378.)
Conduct of an attorney in hiring " ambulance chasers " at a percentage of
the fee obtained by the attorney from the cases thus obtained is a violation
of the Code and of the Penal Law, although he paid the same person a regu-
lar salary for services in investigating cases, and preparing them for trial.
(Matter of Shay, 133 App. Div. 547.)
Attorney proceeded against can only be convicted upon evidence good at
common law, given, if he chooses, in his presence by witnesses subject to cross-
examination. (Matter of Joseph, 125 App. Div. 544.)
READ MISSION TO PRACTICE — Application for.] An application for
leave to resume practice by an attorney who was disbarred on the ground that
he had been convicted of a crime must be determined under the law as it
existed when the conviction took place; and under the statute as it existed in
l-v^7 the attorney has the right to show that the crime of which he was found
guilty was one involving no moral turpitude or any other circumstance show-
ing that the fact of conviction alone should not be deemed sufficient cause for
his removal. (Matter of Darmstadt, 35 App. Div. 285 [1898].)
REVIEW — Order suspending an attorney — how far reviewable by the Court
of Appeals.] An order of the General Term suspending an attorney is review-
able in the Court of Appeals. The measure of punishment is within the dis-
cretion of the court below, but the adjudication of guilt or innocence upon the
facts is reviewable. (In re Eldridge, 82 N. y. ICl [1880]. See Broadwell v.
The State, 16 Wall. 130-135 [1872].)
^Decision by General Term — not reviewable in Court of Appeals.] The
decision of the General Term denying, with costs, an application to. disbar an
attorney is not reviewable in the Court of Appeals. (In the Matter of Kelly,
59 N. Y. '595 [1875].)
WHO CANNOT PRACTICE — Judges not allowed to practice.] No judicial
officer, except justices of the peace, shall receive to his own use any fees or
perquisites of office, nor shall any judge of the Court of Appeals or justice of
the Supreme Court, or any county judge or surrogate hereafter elected in u
coimty having a population exceeding 120,000, practice as an attorney or coun-
selor in any court of record in this State or act as referee. (Art. &, § 20,
Const, amend, of 1894. See, also, Seymour v. Ellison, 2 Cow. 13.)
New York city — none but attorneys to practice in.] See Code of Civil
Procedure, § 63; Judiciary Law, § 271.)
A judge — the partner of a judge and a judge's clerk — cannot practice
in his court.] (See Code of Civil Procedure, §§ 49, 50; Judiciary Law, § 741.)
Partner of district attorney, or other public prosecutor, not to defend.]
(See Code of Civil Procedure. § 78; Judiciary Law, § 278.)
44 CouETS OF Eecobd. [Eule 1
Public prosecutor — when unable to act — punishment.] (See Code of
Civil Procedure, § 79; Judiciary Law, § 278.)
Surrogate not to practice.] (Code of Civil Procedure, | 2495. See art. 6,
§ 20, Const, of 1894.)
Surrogate's clerk, or other person employed in surrogate's ofiSce, not to
practice before the surrogate.] (Code of Civil Procedure, § 2509.)
A surrogate's father or son not to practice before him, or be employed
as an attorney.] (See Code of Civil Procedure, § 2529; Judiciary Law, § 472.)
Constable, law partner or clerk of justice cannot practice before the
justice.] (See Code of Civil Procedure, § 2889; Penal Law, §§ 271, 272.)
Sheriff's, etc.] A sheriff, under sherifT, deputy sheriff, sheriff's clerk,
constable, coroner, crier or attendant of a court shall not, during his continu-
ance in office, practice as an attorney or counselor in any court. (See Code of
Civil Procedure, § 62; Judiciary Law, § 473.)
Clerk, etc.] The clerk, deputy clerk or special deputy clerk of a court
shall not, during his continuance in office, practice as an attorney or counselor
in (hat court. (See Code of Civil Procedure, § 61; Judiciary Law, § 250.)
Constitutional right — citizen of another State.] A citizen of another
State has not a right under the Constitution to practice. (Matter of Henry,
40 N. Y. 560.)
Right to practice not protected by United States Constitution.] The
right to practice in the State courts is not a privilege or immunity of a citizen
of the United States, within the meaning of the first section of the Fourteenth
Amendment of the Constitution of the United States. (Bradwell v. The State,
16 Wall. 130 [1872].)
Nonresidents — cannot practice.] An attorney-at-law who is a non-
resident of this State has no authority or right to, and cannot practice in the
courts of this State. (Richardson v. Brooklyn City & Newton R. R. Co., 22
How. 368 [Sp. T. 18(52].)
Nonresidents — may practice in this State, when.] A person regu-
larly admitted to practice as attorney and coun-elor in the courts of record
of the State, whose office for the transaction of law business is within the
State, may practice as .s,ueh attorney or counselor, although he resides in an
adjoining State. But service of a paper which might be made upon him at his
residence, if he was a resident of the State, may be made upon him by depos-
iting the paper in a post office in the city or town where his office is located,
properly inclosed'in a post-paid wrapper, directed to him at his office. A serv-
ice thus made is equivalent to personal service upon Idm. (See Ck>de of (Tivil
Procedure, § 60; Judiciary Law, § 470.)
An alien cannot be admitted.] An alien cannot be admitted to practice
law as an attorney and counselor-at-law in this State. (In re O'Neill, 90
N. Y. 584 [1882].)
Punishment.] All persons are punishable for assuming to be officers,
attorneys, solicitors ■ or counselors of any court, and acting as such without
authority. (Code of Civil Procedure, § 14, subd. 4. See Judiciary Law, § 753.)
A district attorney and his partner and a public prosecutor, when punish-
able to taking part in an action. (iSee Code of Civil Procedure, § 80; Penal
Law, § 278.)
Eula 2] General Rules of Pkactice. 46
— Action against attorney by client for unauthorized settlement.] Plain-
tiff must establish that the settlement was unauthorized, the validity of the
claim and that it waa worth more than the amount collected thereon. (Vorth
V. McEachen, 181 N. Y. 28 [1905].)
Effect of appearing by one forbidden to practice.] Attorney who sends
someone who is forbidden to practice to appear for him in an action cannot
afterwards raise that question as to an act of such a person. (Kerr v. Walter,
104 App. Div. 45.)
Corporations — may not practice law.] Practice of the law is not a law-
ful business for a corporation to engage in. (Matter of Co-operative Law Co.,
198 N". Y. 479, affg. 136 App. Div. 901.)
UNITED STATES COURTS —Attorneys and counselors of.] Attorneys
and counselors of the United States courts are not officers of the United States,
but are officers of the court, admitted as such by its order upon evidence of
their possessing sufficient legal learning and fair private character. (Ex parte
Garland, 4 Wall. 333.)
As to change of attorneys, see notes under Rule 10.
As to appearance by attorneys, see notes under Rule 9.
RULE 2.
Papers — Where Filed — Change of Venue — Indorsements.
The papers, in cases pending in the Appellate Division, shall be
filed with the clerk of such division of the department in which the
case is pending. In all other cases where no provision is made by
the Code, papers in the Supreme Court shall be filed in the office
of the clerk of the county specified in the complaint as the place
of trial. In Surrogates' Courts, in the office of the surrogate; in
other courts of record, in the office of the respective clerks thereof.
In case the place of trial be changed to another county, all sub-
sequent papers shall be filed in the county to which such change
is made. All papers served or filed must be indorsed or sub-
scribed with the name of the attorney or attorneys, or the name
of the party if he appears in person, and his or their office ad-
dress, or place of business.
Rule 3 of 1858, amended. Rule 3 of 1871. Rule 3 of 1874, amended.
Rule 2 of 1877, amended. Rule 2 of 1880. Rule 2 of 1884. Rule 2 of
1888, amended. Rule 2 of 1896.
CODE OF CIVIL PROCEDURE.
§ 23. Writs and other proce.ss issued out of courts of record, to be returned
to the clerk.
J 344. Where an action is removed from County Court to Supreme Court —
papers on file to be transmitted.
46 CouETs OF E.ECOED. [Rule 2
I 562. Papers on order of arrest must be filed.
§ 500. Order of arrest with papers accompanying it and his return must be
filed by the sherifl:' within ten days.
§ 626. Afiidavit used on obtaining an order vacating an injunction must be
filed.
§ 639. Affidavits on attachment to be filed within ten days.
§ 726. Where original pleading or paper is lost or withheld — how supplied.
§ 816. Bonds and undertakings to be filed with the clerk of the court.
§ 824. Summons and pleadings to be filed with clerk within ten days after
service.
$ 825. Papers in special proceedings — where to be filed.
I 988. Change of place of trial- — duty of clerk to deliver papers.
I 989. When an order changing the place of trial takes effect — appeal
therefrom.
§ 990. Issue of law — where triable — judgment on, where to be filed.
§ 1010. Decision of an issue tried by the court must be filed within twenty
days after the final adjourmnent of the term.
§ 1019. Eeferee's report must be filed or delivered to prevailing party witMn
sixty days after the final submission.
§ 1237. Judgment roll to be filed with the clerk.
§ 1239. Time of filing judgment roll to be noted on it by the clerk.
§ 1672. Lis pendens to be recorded and indexed.
§ 1715. Sheriff, in action of replevin, to file return,
§ 1820. Bond of guardian, suing for his ward's legacy, must be filed.
§ 1895. Proof of service of summons in an action for a penalty.
§ 3367. Condemnation proceedings — the decision on issues arising therein is
to be filed or delivered to prevailing party within twenty days after
final submission.
§ 3372. Offer to purchase must be filed ten days before service of the petition.
See notes to Rules 3 and 4.
FILING PAPERS — What is a filing.] The mere coming of a remittitur to
the hands of the clerk of the court below is not an actual filing. This was so
held where the clerk on being served with a stay handed the remittitur back to
the attorney, without having marked it filed, and refused to file it. (See Cush-
man v. Hadfield, 15 Abb. Pr. [N. S.] 109, and note [Ct. of App. 1873].)
Who may file a paper.] Where the office being vacant a person in charge
received a paper and marked it filed, etc., it was held to be a valid filing.
(Bishop V. Cook, 13 Barb. 326 [Gen. T. 1850].)
Where a motion is made out of court on notice.] AVhen a motion is
made before a judge out of court upon notice, it is the duty of the respective
attorneys to file the papers used by them on such motion. (Savage v. Relyea,
3 How. Pr. 276; S. C, 1 Code R. 42 [Sp. T. 1848].)
Motion after judgment — papers, where filed.] The papers used upon a
motion made after the entry of a final judgment in the action, together with
the order made thereon, must be filed in the office of the clerk of the county
where the judgment was entered, within ten days, or the order may be set
aside as irregular. Curtis v. Greene, 28 Hun, 294 [1882].)
Rule 2] Genebal Rules of Peactice. 47
— — Judgment on appeal — papers, where to be filed.] Where the defendants
entered judgment of nonsuit, and filed the roll in Ulster county, the county
named in the complaint, and on appeal to the General Term at Albany, the
judgment was aflirmed, and the defendants entered judgment and filed another
roll in Albany county, held, that the latter judgment was irregular. (Andrews
V. Durant, 6 How. Pr. 191 [Sp. T. 1851]; S. C, 1 Code K. [N. S.] 410.)
Filing — how compelled.] An attorney will be compelled to do so upon
A mere suggestion, and the defendant cannot object that the filirig of the
affidavit will criminate him. (Anonymous, 5 Cow. 13 [1825].)
Costs allowed on a motion to compel the filing of a paper.] Costs may
be allowed on an ex parte motion to compel the filing of a pleading where the
party omits to file it after service of a notice requiring him to do so. (Lang-
bein v. Gross, 14 Abb. Pr. [N. S.] 412 [Com. P. Sp. T. 1873].)
Presumption as to filing, as regards notice of lis pendens — not in-
dulged.] The rule of Us pendens is not a favorite of the court, and it will not
be presumed in order to sustain a, notice of the pendency of an action that a
complaint was filed prior to the entry of judgment. (Leitch v. Wells, 48 N. Y.
586 [1872].)
Records delivered to clerk before nine presumed to be filed at nine.]
Records of judgments delivered to the clerk to be filed before the hour of nine
o'clock in the morning will be considered as filed at the hour of nine. (Wardell
V. Mason, 10 Wend. 573 [1833]; France v. Hamilton, 26 How. Pr. 180 [Gen. T.
1862].)
(See as to filing judgments and issuing executions thereon out of office hours,
Hathaway v. Howell, 54 N. Y. 98 [1873].)
Notice of filing — when not necessary.] Where a party files a pleading
in pursuance of an order of tlie court, he is, not bound to notify the party who
obtained the order that the pleading is filed. (Douoy v. Hoyt, 1 Code R.
[N. S.] 286 [N. Y. Cora. P. Sp. T. 1852].)
Entry of judge's order not necessary.] As a rule, an ex parte order of
a judge need not be entered, although the papers should be filed. (Albrecht v.
Canfield, 92 Hun, 240 [1895].)
Entering and filing distinguished.] There is a material difference be-
tween entering and filing an order. When filed without the signature of the
clerk, there is no entry of it. (Selley v. Irish Indust. Exposition, 53 Misc. 46.)
FAILURE TO FILE — Effect of.] On motion to set aside an order for a
defect in the affidavits, if it appears that a sufficient afladavit was used on the
hearing of the motion, though not filed, the order should not be set aside.
(Vernam v. Holbrook, 5 How. Pr. 3 [Sp. T. 1850] ; Curtis v. Greene, 28 Hun,
294 [1882].)
Rights of the unsuccessful party.] If a party entitled to enter an order
fails to do so within twenty-four hours after the decision has been made, any
party interested may have it drawn up and entered. (Peet v. Cowenhoven, 14
Abb. Pr. 56 [Chamb. 1861]; Matter of Rhinebeck & Conn. R. R. Co., 8 Hun,
34 [Gen. T. 1870].)
Injunction dissolved — when papers were not filed.] An injunction dis-
solved on the ground that the papers had not been filed as required by the
48 Courts of Reooed, [Eule 2
rules. (Johnson v. Caaey, 28 How. Pr. 492 [N. Y. Supr. Ct. Sp. T. 1865].)
The court may grant relief. (Leffingwell v. Chave, 5 Bosw. 703 [Supr. Ct.
Sp. T. 1860] ; 19 How. Pr. 54; 10 Abb. 472.)
An attachment not vacated because of a failure to file the papers on
which it was granted.] An attachment will not be vacated as a matter of
course for the failure to file within ten days the papers on which it was issued.
(Woodward v. Stearns, 10 Abb. Pr. [N. S.] 395 [N. Y. Com. P. Sp. T. 1871];
Brash v. Wielarski, 36 How. Pr. 253 [N. Y. Supr. Ct. Sp. T. 1868].)
LEAVE TO FILE AFTER THE TIffllE — Power of the court to allow a
paper to be filed after the time allowed therefor has expired.] The court has
power to permit a plaintiff to file a reply after the time limited in an order
which required him to file it or directed that it be deemed abandoned, where
the omission is explained, e. g., where a copy by inadvertence was filed instead
of the original. (Short v. May, 2 Sandf. 639 [1849].)
An answer may be inserted in the judgment-roll after the roll has been
filed.] A judgment-roll may be amended by attaching a copy answer when
the answer has been omitted when it was made up. (Renouil v. Harris, 1
Code R. 125 [N. T. Sup. Ct. 1849].)
Filing papers nunc pro tunc] Where papers in an order for service by
publication were delivered to the clerk and he retained them in his, possession
instead of filing them, a subsequent order on the making up of the judgment-
roll directing the filing of the papers nwnc pro tunc was the proper method of
correcting the record. (Fink v. Wallach, 109 App. Div. 718.)
INDORSEMENT — Must be on the copy as well as on the original.] It ia
not sufficient that the indorsement be made on the original order only. It
must also be made on the copy served. (Dent v. Watkins, 49 How. Pr. 275
[Chamb. 175]. See, however, Forward v. French, 52 id. 88 [Sp. T. 1876].)
■ Essential on notice to limit time to appeal.] A notice of the entry of
judgment which is not indorsed or subscribed both with the name of the attor-
ney and his office address or place of business is irregular and ineffectual to
limit the time to appeal. (Kelly v. Sheehan, 76 N. Y. 325 [1879].)
Indorsement concealed.] A notice of the entry of a judgment or order,
to be effective to limit the time to appeal, must be so given that it would be
negligence to fail to observe it; and an indorsement so made that it is con-
cealed when the cover is folded, so that it is possible to open and read the
order without discovering the notice of entry, is, insufl[icient. (Weeks v. Coe,
36 App. Div. 339 [1899].)
The omission to indorse does not vitiate the paper — it is merely an
irregularity.] The omission to indorse upon a paper served the post office
address or place of business of the attorney aa required by the General Rules
of Practice (No. 2) does not necessarily vitiate either the paper or the service;
it ia a mere irregularity, and the party served may either return the paper or
move to set it aside. After receiving it without objection, however, he cannot
safely disregard the functions which the paper ia designed to perform. (Evans
V. Backer, 3 How. Pr. [N. S.] 504; 101 N. Y. 289 [1886].)
What is a sufficient indorsement.] Where, upon a copy of a judgment
served, was indorsed the name of the attorney with his post office address and
Rule 3j General. Rules of Practice. 49
business address, and below was indorsed a notice of judgment, signed by the
attorney, without giving any address, held that this was a sufficient compli-
ance with Kule 2. (People ex rel. W. V. R. R. Co. v. Keator, 101 N. Y. 610
[1885]; Falker v. N. Y., W. S. & B. E. Co., 100 id. 86 [1885].)
Admission of due and proper service — waives the defect of omitting the
address of the attorney.] An admission of " due and proper " s,eryiee of a
judgment and notice of entry thereof constitutes a waiver of a defect in the
notice of entry consisting in the omission of the attorney serving it to sub-
scribe thereto his office address as well as his name. (Patterson v. McCann,
23 N. Y. Weekly Dig. 70 [Supreme Court, Gen. T. 1886].)
——Filing — how compelled.] A judgment debtor may compel the creditor's
attorney to file an order for the examination of a third party in supplementary
proceedings, although the judgment has itself befiu paid and the judgment cred-
itor has obtained an order discontinuing the proceeding against the third
person, and although the order and affidavit upon which if was granted may
tend to criminate the person who obtained it. (Sinnott v. First National Bank,
34 App. Div. 161 [1898].)
Meaning of "resided" in section 984 of Code of Civil Procedure.] The
word " resided " means a permanent residence, one's home, as distinguished
from a mere stopping place. It is nearly synonymous with " domicile." (Wash-
ington V. Thomas, 103 App. Div. 423.)
DESTRUCTION OF RECORDS — Power to destroy records only exercised
in exceptional cases.] The power of the court to remove its records from the
clerk's office, for the purpose of destruction, should only be exercised in excep-
tional cases, as in ease of mistake or of irrelevant and scandalous accusations.
(Schecker v. Woolsey, 2 App. Div. 52 [1896].)
Office hours in county clerk's office.] (See note under Rule 8.)
HUIE 3.
Motion Papers to be Specified in Order — Where Filed — Effect of Non-filing —
Entry of Order.
When any order is entered, all the papers, used or read on the
motion on either side, shall be specified in the order, and shall be
filed with the clerk, unless already on file or otherwise ordered
by the court, or the order may be set aside as irregular, with costs.
The clerk shall not enter such order unless the motion papers are
filed, and unless the order is signed by the justice presiding at the
court at which the motion was heard. When an opinion has been
delivered by the court, it shall be filed with the order and shall
be considered a part of the record upon which the order was made ;
and if the order does not state the grounds upon which it was
made, the opinion may be considered to ascertain such grounds.
When the affidavits and papers upon a non-enumerated motion
4
50 CoTJETS OF Eecoed. [Rule 3
are required by law or by the rules of tbe court to be filed, and the
order to be entered in a county other tban that in which the motion
is made, the clerk shall deliver to the party prevailing in the
motion, unless the court shall otherwise direct, a certified copy of
the rough minutes, showing what papers were used or read,
together with the affidavits and papers used or read upon such
motion, with a note of the decision thereon, or the order directed
to be entered, properly certified. It shall be the duty of the party
to whom such papers are delivered to cause the same to be filed,
and the proper order entered in the proper county within ten days
thereafter, or the order may be set aside as irregular, with costs.
Rule 3 of 1858, amended. Rule 3 of 1871, amended." Rule 7 of 1S71,
amended. Rule 4 of 1874, amended. Rule 7 of 1874, amended. Rule 3
of 1877, amended. Rule 3 of 1880. Rule 3 of 1884. Rule 3 of ISdS,
amended. Rule 3 of 1896. Rule 3 as amended, 1910.
CODE OF CIVIL PROCEDURE.
§ 768. An application for an order is a motion.
§ 769. Where motions in the Supreme Court are to be heard.
§ 770. To whom motions may be made in New York city.
§ 771. Motions may be transferred.
§ 772. What judges may take orders out of court.
§ 773. Limitation as to orders made by county judges.
§ 774. Order made by a judge not of the court in which the action is
brought — how reviewed.
§ 775. Stay of proceedings — duration of.
§ 776. Wlien a second application for an order must be made to the same
judge.
§ 777. An application for judgment cannot be withdrawn without permis-
sion — subsequent application.
§ 778. Penalty for violating the two last sections.
§ 779. Costs of motions — how collected.
§ 780. Notice of motion to be eight days.
§ 3343, subd. 20. The word " order " refers to an order made in a civil action
or special proceeding.
ORDER — Definition of.] The provision of the Code which declares "every
direction of a court or a judge made or entered in writing," is to be " denom-
inated an order," so far as regards appeals therefrom, properly includes only
mandates on parties or officers on final determination of rights. Every deci-
sion or resolution of a court or judge does not become an order by being put
in writing when otherwise it would not be. (Howard v. Freeman, 6 Robt.
511 [Gen. T. Supr. Ct. 1866].)
Rule 3] General Eules of Practice. 51
Order to be submitted to adverse party before being entered.] Where
an order is special in its provisions, the party entitled to draw up the same
should submit a copy thereof to the adverse party, that he may propose
amendments thereto before it is submitted to the register to be settled and
entered. (Whitney v. Belden, 4 Paige, 140 [1833].)
Duty of attorney, not of judge, to see that the order is proper.] It i.*
the duty of the attorney and not of the judge to see that an order taken is
not too broad for the case on which it is founded. {La Farge v. Van Wagenen,
14 How. Pr. 57 [Sp. T. 1857].)
Order, by whom entered.] An order must be entered by the prevailing
party with the clerk of the county where the papers are filed. (Savage v.
Relyea, 3 How. Pr. 276 [Gen. T. 1848] ; S. C, 1 Code R. 42.)
——When the unsuccessful party may enter the order.] The unsuccessful
party can enter the order when the successful party neglects to do so for
twenty-four hours. (Peet v. Cowenhoven, 14 Abb. Pr. 56 [Chamb. 1861];
Matter of Eiinebeck & Conn. R. R. Co., 8 Hun, 34 [Gen. T. 1876].)
Duty of the clerk to enter the order — party not prejudiced by his
failure to do so.] It is the duty of the clerk to enter orders of the court,
and his delay or omission to make actual and speedy entry of orders in the
minutes will not be allowed to prejudice the substantial rights of parties.
(People v. Central City Bank, 53 Barb. 412 [1867].)
Entry of — during session of court.] It is not necessary to the validity
of an order of the Court of Sessions, transferring an indictment to the Court
of Oyer and Terminer, that it should be entered during its session. (People
V. Myers, 2 Hun, 6 [1874].)
^Decision ineffectual until order entered — date to be that of entry of
order.] Neither party can have any benefit from a decision of the court until
the order upon such decision is drawn up and perfected, and where it is
material to either party the caption or date should be made to correspond
with the time of the actual entry of the order. (Whitney v. Belden, 4 Paige,
140 [1833].)
An order vacating an injunction must be served and the papers used
must be filed before it takes effect. (Code of Civil Procedure, § 626.)
Appeal proper, only after order entered and papers filed.] An appeal
will not lie from an order untU it is entered and the motion papers are filed
with the clerk. (Smith v. Dodd, 3 E. D. Smith, 215 [Gen. T. Com. P. 1854] ;
Star Fire Ins. Co. v. Godet, 2 J. & S. 359 [Gen. T. Supr. Ct. 1872] ; Plato v.
Kelly, 16 Abb. 188 [Gen. T. 1862] ; Gait v. Finch, 24 How. Pr. 193 [Gen. T.
1862]; MarshaU v. Francisco, 10 id. 147 [Gen. T. 1854]. See Code Civ. Pro.
§ 1304.)
Chamber order — must be filed in the department in which the appeal
is taken.] Where a chamber order is made in one department, in an action
pending in another department, no appeal therefrom will lie in the latter
department until the order has been entered there. (Clinch v. Southside
R. R. Co., 2 Hun, 154 [1874]; Hoffman v. T'redwell, 5 Paige, 83 [1835]:
Whitney v. Belden, 4 id. 140 [1834].)
Appeal from chamber order of county judge — proper, only after entry
52 CouETs OF Record. [Rule 3
of the order.] An appeal from a chamber order of a county judge can only
be taken after the order has been entered in the county clerk's office. (Pool
V. Safford, 10 Hun, 497 [Gen. T. 1877]; Whitaker v. Desfoase, 7 Bosw. 678
[Gen. T. Supr. Ct. 1861].)
A chamber order need not be entered.] An order granted by a judge
at chambers, ex parte, need not be entered with the clerk, but may be dis-
regarded, unless the affidavit used on the motion, or a copy thereof, is served
with a copy of the order. (Savage v. Relyea, 3 How. Pr. 276; S. G., 1 C!ode
Reporter, 42 [Sp. T. 1848].)
Order signed by county judge on a County Court caption, a chamber
order.] Where a petition for the appointment of a guardian ad litem for an
infant plaintiff is addressed to the county judge, but the order for the appoint-
ment is entitled as having been made at a term of the County Court, the
court will disregard the caption of the order and hold the order valid upon
the assumption that the coimty judge acted in the capacity in which he was
called upon to act and in which he had a right to act. The fact that the order
was entered as an order of the County Court does not estop the plaintiff
from asserting its true character, as the validity of an order does not depend
upon the form of its entry. (Albrecht v. Canfield, 92 Hun, 240 [1895].)
Recital in order.] A party is entitled to have recited in an order all
the papers used by him or his adversary on the motion, unless there is scan-
dalous matter, which the court is authorized to strike out. (Deuterman v.
Pollock, 36 App. Div. 522 [1899].)
To specify papers read.] The requirement that the order on a non-
enumerated motion shall specify all the papers used or read on the motion,
is complied with by a statement that the motion was made upon all the
papers and proceedings in the action. (Hobart v. Hobart. 85 N. Y. 637
[1881]. See, however, Deutermann v. Pollock, 36 App. Div. 522 [1899].)
What is too indefinite.] A recital in the words "and on all papers
and proceedings herein " is too indefinite. (Faxon v. Mason, 87 Hun, 139
[1895].)
An order should recite all papers used on the motion.] A party appear-
ing upon a motion is entitled to have recited in the order disposing of the
motion all of the papers used by him or his adversary thereon. (Deutermann
V. Pollock, 36 App. Div. 522 [1899].)
Conditions when not imposed on a failure to recite in the order and to
file an affidavit used on a motion.] Where an important affidavit made upon
a motion has neither been recited in the order made on such motion, nor filed,
nor made part of the record, and a sufiicient excuse is shown therefor, it is
improper to impose, as a condition of allowing it to be recited in the order
and filed, that the party seeking such relief should admit service, or submit
to service upon her, of a judgment entered in the action. (Thousand Island
Park Assn. v. Gridley, 25 App. Div. 499 [1898].)
Resettlement of an order which does not contain proper recitals.] If
an order does not contain the proper recitals, the proper practice is to move
for its resettlement. (Mooney v. Ryerson, 8 Civ. Pro. Reports, 435 [N. Y.
City Court Sp. T. [1885].)
Eule 4] General Eules of Peactice. 53
Resettlement, not allowed to effect a removal of a motion.] A party
whose motion to resettle an order, by reciting therein certain papers used
upon the motion has been denied, has no right to make motions, ostensibly to
resettle orders, but which have for their object the same relief which was
refused by the original order denying his motion for resettlement, as such
procedure amounts, in effect, to renewals of the original motion without leave.
(Deutermann v. Pollock, 36 App. Div. 522 [1899].)
Power of justices of the Appellate Division as to granting orders.] No
justice of the Appellate Division shall exercise any of the powers of a justice
of the Supreme Court, other than those of a justice out of court, and those
pertaining to the Appellate Division or to the hearing and decision of motions
submitted by consent of counsel. (Const, of 1894, art. 6, § 2.)
Court cannot direct that certain papers used upon a motion need not be
printed in the appeal papers.] There is no provision of the Code or Rules
which authorizes the Special Term to direct that papers submitted upon a
motion heard at Special Term, and which have been duly filed and are recited
in the order entered upon such motion, need not be printed in the papers to be
used on the argument of an appeal from such order; the power to make such
direction can be exercised only upon the theory that some of the papers which
have been so submitted, filed and recited were not actually used, or that they
were not considered by the court in deciding the motion. (Manhattan Railway
Co. V. Taber, 7 Misc. Rep. 347 [Supm. a. 1894].)
Motion defined.] (See Matter of Jetter, 78 N. Y. 601.)
Nonemimerated motions — what are.] (See Rule 38.)
Nonenumerated motions — for what day noticed.] (Rule 21.)
See notes to Rules 2 and 4.
Motion — where made.] The practice of moving before one judge at
Special Term to declare void the order or judgment of another judge at Special
Term is not sanctioned by any provision of the Code of Civil Procedure, or by
any other controlling authority. (Piatt v. N. Y. & Sea Beach Ry. Co., 170
N. Y. 451 [1902]. See, also, Code Civ. Pro., §§ 772, 774, et seq.)
On an appeal from an order of a County Court it was objected that the
order, which was without a caption, was a judge's order and not a court order,
it was held that the application having been made to County Court and the
order reciting that fact, the order should be regarded as a court order. (Law-
son V. Spear, 91 App. Div. 411.)
See Terry v. Green, 53 Misc. 10.
RULE 4.
Filing Undertaking and AfSdavit — Injunction — Attachment.
Except where otherwise expressly provided by law, it shall be
the duty of the attorney of the party required to give a bond or
undertaking to forthwith file the same with the proper clerk ; and
in case such bonds and undertakings shall not be so filed, any party
to the action or special proceeding, or other persons interested,
64 CouETS OF Eecokd. [Rule 4
shall be at liberty to move the court to vacate the proceedings or
order as if no bond or undertaking had been given. It shall also
be the duty of the attorney to file the petition or affidavit upon
vphich an injunction, attachment, order of arrest, or writ, has been
granted within ten days after the same shall have been served.
In case of a failure so to file such petition or affidavit, the oppos-
ing party may move to vacate the order, warrant or writ, and the
same shall be vacated by the court or judge granting the same, un-
less for proper cause shown time to file the same shall be extended.
Rule 4 of 1858, amended. Rule 4 of 1871. Rule 5 of 1874, amended.
Rule 4 of 1877, amended. Rule 4 of 1880. Rule 4 of 1884. Rule 4 of 1888,
amended. Rule 4 of 1896.
CODE OF CIVIL PROCEDURE.
§§ 562, 590. Arrest- — papers on which the order was granted, to be filed.
§ 576. Ball — examination of persons offered as.
§ 602. Order substituted for writ of injunction.
§ 603. Injunction, where right thereto depends on the nature of the action.
§ 604. Injunction — dependent on extrinsic facts — affidavits on application
for, what to state.
§ 605. Injunction restraining a State officer only granted at a term of the
Supreme Court sitting in the department in which the officer is
located.
§ 606. Injunction — by whom granted, except where specially prescribed by
law.
§ 607. Proof sufficient to justify the granting of an injunction.
§ 626. Order vacating an injunction — when it takes effect.
§ 636. Attachment — affidavit on an application for, what to state.
§ 639. Affidavit to be filed with clerk within ten days after the granting of
the warrant.
§ 642. Validity of undertaking not affected by improper granting of war-
rant, want of jurisdiction, or other cause.
§ 815. Bonds and undertakings not affected by change of parties.
■§ 816. Bond or undertaking given in an action or special proceeding must be
filed with the clerk, except as otherwise provided for.
§ 1307. Undertaking given on appeal, must be filed.
§ 1536. Bond of guardian ad litem for infant party in partition must be filed.
§ 3272. Undertaking to be filed, where security for costs is required.
§ 3421. Undertaking on an application to foreclose a lien on a vessel must be
filed.
See notes under Rules 3 and 5.
ATTACHMENT — Not vacated because of failure to file the affidavit.]
The failure to file an affidavit, on which an attachment was issued within ten
Eule 4] General Rules of Peacticb. 55
days, is not ground for vacating the attachment. (Brash v. Wielarksy, 36
How. Pr. 253 [Sp. T. 1868]; Woodward v. Stearns, 10 Abb. Pr. [N. S.] 395
[Sp. T. 1871].)
Affidavits on — filed under section 639 of the Code.] The time for
filing the affidavits on an attachment is provided for by section 639 of the
Code of Civil Procedure.
AfSdavit — what to contain.] The affidavit must set out the evidence
upon which the plaintiff relies. (Delafield v. Armsby Co., 62 App. Div. 262;
Murphy v. Jack, 142 N. Y. 215.)
Where an attachment is sought in an action to recover unliquidated dam-
ages, affidavits must contain prima facie proof that damages to the amount
claimed have been sustained. (Chazy Marble Lime Co. v. Derby, 88 App. Div.
150.)
Affidavit — cannot be attacked collaterally.] A warrant of attachment,
issued upon affidavits sufficient to give the justice jurisdiction, cannot be
questioned collaterally. (Rogers v. IngersoU, 103 App. Div. 490.)
INJUNCTION — Failure to file papers — relief granted.] Where a party,
by inadvertence, fails to file the papers upon which an injunction is granted,
the court may relieve him upon or without terms. (Iieffingwell v. Chave, 5
Eosw. 703 [Sp. T. Supr. Ct. 1860] ; 19 How. Pr. 54; 10 Abb. 472. See Johnson
V. Casey, 3 Robt. 710; S. C, 28 How. Pr. 492 [Sp. T. 1865]; O'Donnell v.
McMurn, 3 Abb. Pr. 391 [Sp. T. 1856].)
UNDERTAKING — Rejection of sureties on — a new undertaking must be
filed and justification take place, in what time.] Under an order, on rejection
of proposed sureties, granting appellant ten days' time to file an undertaking
with new sureties, the new undertaking must not only be filed, but justifi-
cation of the sureties must be had, within the time. (Chamberlain v. Demp-
sey, 13 Abb. Pr. 421 [Supr. Ct. Sp. T. 1862]; S. C, 22 How. Pr. 356.)
Vacating order of arrest because of insufficient undertaking.] A
motion to vacate an order of arrest because of the insufficiency of the under-
taking, cannot be denied, where such insufficiency exists, upon the condition
of a sufficient undertaking being filed. (Bondy v. Collier, 13 Misc. Rep. 15
[1895].)
Not void, as taken colore officii.] When an undertaking given upon
procuring an injunction is not invalid as having been taken colore officii,
because of its terms being unusual. (Candee v. Wilcox, 26 Hun, 666 [1882].)
Undertaking to stay proceedings on appeal, when to be filed.] An
undertaking to stay proceedings on appeal must be filed and served with the
notice of appeal, and not afterwards. (New York Central Inc. Co. v. Safford,
10 How. Pr. 334 [Sp. T. 1854].)
Filing — necessary.] An imdertaking on appeal is not effectual until
filed. (Webster v. Stevens, 5 Duer, 682 [Supr. Ct. Sp. T. 1856] ; S. C, 3 Abb.
Pr. 227.)
——Rights, etc., of sureties.] Rights and liabilities of sureties upon an
undertaking given upon the issuing of an attachment. (Baere v. Armstrong,
26 Hun, 19 [1881].)
— Cancelling of an undertaking on file.] The propriety of cancelling an
56 Courts of Eecoed. [Rule 5
undertaking on file is doubtful. Where there are other persons in interest
besides those who consent to the order, it should not be done. (Dry Dock,
East Broadway, etc., R. R. Co. v. Cunningham, 45 How. Pr. 458 [Gen. T.
1873]. See, also, Cunningham v. White, 45 How. Pr. 486 [Sp. T. 1873].)
Enforcement.] An undertaking on appeal from an order which re-
quired the restoration of a fund by deposit in a certain bank, can be enforced
only by requiring such deposit and not by payment of the sum to the party
for whose beneiit the undertaking was given, where rights of other parties
in the action are involved. (Mossein v. Empire State Surety Co., 117 App.
Div. 820.)
Liability of surety.] Surety on an undertaking on arrest, held liable
for but one cause of action. (McLean v. Fidelity & Deposit Co., 56 Misc. 23.)
It is a defense to an action on an undertaking to stay execution, that the
sureties were excepted to and failed to justify and that the bond was not
approved. (Montrose v. Levinson, 114 N. Y. Supp. 136.)
Validity of undertaking must be determined by an action brought thereoo.
(Riddle v. MacFadden, 60 Misc. 569.)
Right of sureties to be discharged.] Presentation by a surety of a
petition to the court asking to be discharged and the action to be taken
therein, provided for. (Code Civ. Pro., § 812.)
As to amendments of undertakings, justification, etc., see notes under Rule 5.
RULE 5.
Sureties, Justification of — Bonds to be Proved or Acknowledged — Attorney
or Counselor Cannot be Sureties. ,
Whenever a justice or other officer approves of the security to
be given in any case, or reports upon its sufficiency, it shall be his
duty to require personal sureties to justify, or, if the security
oifered is by way of mortagage on real estate, to require proof of
the value of such real estate. And all bonds and undertakings,
and other securities in vyriting, shall be duly proved or acknowl-
edged in like manner as deeds of real estate, before the same shall
be received or filed.
In no case shall an attorney or counselor be surety on any under-
taking or bond required by law, or by these rules, or by any order
of a court or judge, in any action or proceeding, or be bail in any
civil or criminal case, or proceeding.
Rule 5 of 1858, amended. Rule 6 of 1858. Rule 8 of 1871, amended.
Rule 9 of 1871. Rule 8 of 1874, amended. Rule 9 of 1874, amended.
Rule 5 of 1877. Rule 5 of 1880. Rule 5 of 1884. Rule 5 of 1888. Rule 5
of 1896.
Rule 5] Genekal Rules of Pbactice. 57
CODE OF CIVIL PROCEDURE.
§t 573-590. As to bail and their justification.
§ 810. Bonds and undertakings must be acknowledged or proved, and cer-
tified as a deed to be recorded.
§ 811. Party need not join with sureties — when one surety is sufiicient.
§ 812. Form of bond or undertaking — affidavit of sureties — in what case
may be omitted ■ — approved by court or judge.
§ 813. When several sureties may justify, each in a smaller sum than the
bond or undertalcing.
§ 814. Suitor may sue on bond, etc., taken for his benefit to the people or
a public officer.
§ 815. Bonds and undertakings not affected by change of parties.
§ 816. To be filed with clerk, except when a different disposition thereof is
directed.
§ 827. Special reference may be ordered for the approval of a bond or
undertaking.
§ 1305. Security on appeal, may be waived by written consent of respondent.
§ 1307. Undertaking on appeal, must be filed with the clerk.
§ 1308. New undertaking on appeal, to be given when sureties are insolvent.
§ 1309. Action upon undertaking on appeal — at what time maintainable.
§ 1335. Exception to, and justification of sureties on an appeal to the Court
of Appeals.
AMENDMENTS TO UNDERTAKING — Undertaking given on procuring
an arrest.] The court has power to allow an amendment of an undertaking
given on procuring an order of arrest. (Irwin v. Judd, 20 Hun, 562 [1880].)
^—Allowed even upon appeal.] To cure any mere formal defect in the
approval thereof. (Ten Eick v. Simpson, 11 Paige, 177 [1844].) As to the
amount— (Eldridge v. Howell, 4 Paige, 457 [1834].)
Where it has not been proved or acknowledged.] (Conklin v. Dutcher,
5 How. 386, 388 [Gen. T. 1850] ; Harrington v. The Am. Life Ins. & Trust Co.,
1 Barb. 244 [Sp. T. 1847]; Bellinger v. Gardiner, 12 How. Pr. 381 [Sp T.
1856] ; S. C, 2 Abb. 441 ; Beach v. Southworth, 6 Barb. 173 [Gen. T. 1849] ;
S. C, 1 Code R. 99.)
By adding the names of other sureties, where by mistake or inadver-
tence the requisite number have not joined in the undertaking.] (Potter v.
Baker, 4 Paige, 290 [1834]. See Kissam v. Marshall, 10 Abb. 424 [Sp. T.
1860] and cases cited.)
Where it has not been acknowledged before a proper officer.] Rida-
bock V. Levy, 8 Paige, 197 [1840].)
When given on procuring an arrest.] (Irwin v. Judd, 20 Him, 562
[1880].)
Use of a seal on an undertaking implies a consideration.] (Grim v.
Little, 43 Misc. 421.)
JUSTIFICATION — Affidavit of.] The affidavit of justification should be
annexed to and filed with the undertaking. (Van Wezel v. Van Wezel, 3 Paige,
38 [1831].)
58 Courts of Record. [Rule 5
In what amount on appeal to the Appellate Division of the Supreme
Court.] Sureties on an appeal to the Appellate Division of the Supreme Court
must justify in double the amount of the judgment and costs. (Heppock v.
Cottrell, 13 How. Pr. 461 [Sp. T. 1857].)
Must be double the sum specified in the undertaking.] An undertaking
given in proceedings of claim and delivery, on which there were four sureties,
and only three justified, and the aggregate amount of their justification was
less than double the sum specified in the imdertaking, held insufficient.
(Graham v. Wells, 18 How. Pr. 376 [Sup. Ct. Chamb. 1857].)
That sureties justify to more than is necessary is not objectionable ]
It is no objection to an undertaking on appeal that the sureties justify in
more than twice the amoimt specified therein. (Hill v. Burke, 62 N. Y. Ill
[1875].)
Failure to justify in double the judgment and the $500 does not invali-
date the undertaking.] That the sureties to an undertaking fail to justify in
double the amount of the judgment, and to double the $500 limited for costs
and damages, does not invalidate the undertaking. (Hill v. Burke, 62 N. Y.
Ill [1875]; Rich v. Beekman, 2 Code R. 63 [1849].)
Partial justification — may sustain appeal, when.] An undertaking on
appeal, in form sufficient to eilect a stay of proceedings, but in which the jus-
tification was not in a sum sufficient for that purpose, held sufficient to sus-
tain the appeal. (Newton v. Harris, 8 Barb. 306 [Sp. T. 1850].)
Effect of the failure of the sureties excepted to, to justify.] The effect
of the failure of sureties to justify after they are excepted to, is the same as
if the undertaking had not been given by them. (Manning v. Gould, 90 N. Y.
476 [1882].)
Sureties not released by their failure to justify.] The sureties on an
undertaking on appeal are not released from liability by their failure to jus-
tify after being excepted to. (McSpedon v. Bouton, 5 Daly, 30 [Gen. T.
1873].)
Sureties not discharged because further sureties are required.] Sureties
are not discharged because of the parties being directed to furnish further
sureties. (Jewett v. Crane, 13 Abb. Pr. 97 [Gen. T. 1861].)
When a substitute not required for an insolvent surety.] Where one
surety becomes insolvent, if the other surety is abundantly able to satisfy the
judgment, or if the judgment is otherwise well secured and the appeal is
likely to be soon disposed of, the appellate court may refuse to require the
appellant to file a new undertaking. (Dering v. Metcalfe, 72 N. Y. 613 [1878].)
Default by plaintiff, after requiring justification.] Where, after a
notice of qualification was duly served the plaintiff failed to appear and the
bill was approved by default, the court has no power to open such default.
(Lewis V. Stevens, 93 N. Y. 57 [1883].)
— Agreement to accept surety — without justification — effect of.] It
was agreed by the attorneys that a surety on an undertaking on appeal should
be accepted without justification on his part, defendant's attorney promising
to have it so marked upon the undertaking by the court; which, however,
was never done, although the appeal was taken as though it had been.
Kule 5] Geneeal Rules of Practice. 59
In an action brought upon the undertaking against the sureties thereto, they
claimed that it could not be maintained, for the reason that the approval of
the sureties had never been indorsed on the undertaking as required by
section 196 of the Code of Procedure. Held, that the consent to accept the
surety was a waiver of the justification, and no indorsement was necessary.
(Gopsill V. Decker, 4 Hun, 625 [Gen. T. 1875].)
As to bail and their justification, see Code of Civil Procedure, sections 573
to 590, and Sheriff, post.
Time within which a justification must take place where a new under-
taking is filed.] (See Chamberlain v. Dempsey, 13 Abb. Pr. 431 [Supr. Ct.
Sp. T. 1862] ; S. C, 22 How. Pr. 356.)
INDORSEMENT — Effect of failure to have.] When the undertaking filed
on granting an order of arrest, is not indorsed with the approval of the
justice granting the order, the order will, on motion, be vacated with costs.
(Newell V. Doran, 21 How. Pr. 427 [Sp. T. 1861].) Copy of indorsed paper
should contain the indorsement. (Dent v. Watkins, 49 How. Pr. 275 [Chamb.
1875].)
See, however. Forward v. French, 52 How. Pr. 88 (Sp. T. 1876).
See notes under " Indorsement " under Rule 2.
ATTORNEYS — Cannot become bail.] Miles v. Clarke, 4 Bosw. 632, affirm-
ing 2 id. 709; Craig v. Scott, 1 Wend. 35; King v. Sheriff of Surrey, 2 East,
181; Laing v. Cundall, 1 H. Bl. 76, note a; Wheeler v. Wilcox, 7 Abb. 73;
Coster V. Watson, 15 Johns. 535.)
Attorneys — who may be sureties on undertakings.] The rule that an
attorney and counselor shall not be surety on any undertaking or bond, does
not apply to a person whose name still appears on the roll of attorneys, but
who has abandoned the practice of the law to engage in another occupation.
(3 How. Pr. [N. S.] 214 [Sp. T. Sup. Ct. 1886]; Stringham v. Stewart, 8
N. Y. Civ. Pro. Rep. 420 [Sup. Ct. Sp. T. 1886.]
Liability of, on an undertaking.] ^Vhere an attorney, without objec-
tion, becomes surety on an undertaking, he incurs no other or different
responsibility than attaches to tlie obligation he signs, and the same can be
enforced in no other or diflierent manner than if it were the obligation of a
person not an attorney or officer of the court. (Wilmont v. Meserole, 48 How.
Pr. 430 [Sp. T. 1875]; S. C, 16 Abb. [N. S.] 309.)
SHERIFF — Cannot become bail.] (Bailey v. Warden, 20 Johns. 129;
Banter v. Levy, 1 Chitt. 713; Bolland v. Pritchard, 2 W. Bl. 799; Doldern v.
Feast, 2 Grange, 889, and note 1.)
Discharged by qualification of bail.] Where a sheriff has been dis-
charged from liability under an order of arrest by the qualification and
allowance of bail, the court has no power to renew his liability. (Lewis v.
Stevens, 93 N. Y. 57 [1883].)
CITY COURT (of New York) — Attachment — justification.] On an under-
taking given to discharge an attachment, issued from the New York City
Marine Court, the sureties may justify before a county judge of the county
in which they reside. (Seed v. Teale, 2 N. Y. Weekly Digest, 545 [Marine
Court, 1876].)
CO CouKTS OF Eecoed, [Rulc &
RULE 6.
How Sheriff's Return Compelled.
At any time after the day when it is the duty of the sheriff, or
other officer, to return, deliver, or file any process, or other paper,
by the provisions of the Code of Civil Procedure, or by these rules
of the courts, any party entitled to have such act done, except
where otherwise provided by law, may serve on the officer a notice
to return, deliver, or file such process, or other paper, as the case
may be, within ten days, or show cause, at a Special Term to be
designated in said notice, why an attachment should not issue
against him.
Rule 8 of 1858. Rule 10 of 1871, amended. Rule 10 of 1874, amended.
Rule 6 of 1877. Rule 6 of 1880, amended. Rule 6 of 1884. Rule 6 of
1888. Rule 6 of 1886.
CODE OF CIVIL PROCEDURE,
§ 14. Neglect to return — punishment for. See Judiciary Law, § 753.
f 23. Writ or other process must be returned to the clerk, unless other-
wise prescribed.
§ 102. Sheriff may make return by mail.
§ 103. Liability and punishment of sheriff for neglect to execute mandate
in special proceedings.
§ 186. Former sheriff, after election of his successor, must execute mandate
in his hands. See County Law, § 195.
§ 339. Execution and return of process issued from City Court of New
York.
§ 577. Arrest and bail — duty of sheriff if bail is given.
§ 590. Arrest and bail — filing of papers if bail is not given.
§ 712. Return of sheriff where a warrant of attachment is annulled, etc
§ 725. The return may be ordered amended by the court.
§ 825. In special proceedings; return, where to be filed.
§ 1715. Return of sheriff, in replevin — when to be made.
§ 1716. How return compelled.
§ 1818 et seg. Suit on sheriff's bond.
§ 2270. Notice to delinquent officer to show cause.
RECEIPT — For process.] The sheriff must give receipt for process de-
livered to him if required. (Code of Civil Procedure, § 100.)
DELIVERY TO DEPUTY — Liability of sheriff.] If the sheriff acts on an
execution which was delivered to his deputy, he is liable for not returning it.
(People v. Waters, 1 Johns. Gas. 137 [Sup. Ct. 1799] ; S. C, Col. & C. Cas. 82.)
— ^ Delivery of process must be known to him.] The sheriff is not in con-
tempt for not acting on process which never came to hid personal knowledge, and
Eule 6] General Eules of Peactice. 61
was not lodged at his office. (People v. Waters, 1 Johns. Cas. 137 [Sup. Ct.
1799]; S. C, Col. & C. Cas. 82.)
Delivery to a person in charge of the business in the office of the
coroner — when sufficient.] (Manning v. Keenan, 9 Hun, 686 [Gen. T. 1877].)
RETURN — Process may be returned on the morning of the return day.]
An officer may return process on the morning of the day of its return, and is
not responsible, though he might, subsequent to the return, have executed
the process. (Hinman v. Borden, 10 Wend. 367 [1833].)
Sheriff to serve and return a declaration within a reasonable time.]
A declaration delivered to a sheriff to be served must be served and returned
within a reasonable time. (Anon., 10 Wend. 572 [1833].)
An officer is bound to use diligence in executing process.] An officer
having process requiring the arrest of a party is bound to use all reasonable
endeavors to execute it. (Hinman v. Borden, 10 Wend. 367 [1833].)
-^Sheriff is bound to levy under an execution regular on its face.] It
is the duty of a sheriff to levy under an execution regular upon its face; and
it is no excuse for his omission that it varies from the amount for which the
judgment was rendered. (Parmelee v. Hitchcock, 12 Wend. 96 [1834].)
Sheriff not liable, if the execution was void.] If the execution be
void the sheriff is not liable for an escape of a debtor. (Ginochio v. Orser,
1 Abb. Pr. 433 [N. Y. Com. PI. Sp. T. 1855].)
Sheriff not excused for an escape by showing that the execution was
irregular.] The sheriff cannot protect himself in an action for an escape by
sliowing irregularity in an execution against the person upon which the arrest
was made. (Ginochio v. Orser, 1 Abb. Pr. 433 [N. Y. Com. PI. Sp. T. 1855].)
Irregularity in issue of writ — sheriff cannot take advantage of.]
AVhen a sheriff cannot avail himself of the irregularity of the issuing of the
writ. (Hinman v. Brees, 13 Johns. 529 [1816].)
Sheriff to return writ without an order of the court.] It is the duty
of a sheriff to return a writ without an order of the court for that purpose.
(Hinman v. Brees, 13 Johns. 529 [1816].)
Effect on a return of a reversal of the order requiring it to be made.]
Where a return is made by a sheriff in pursuance of an order from which an.
appeal has been taken, the return should be canceled in case the order be
reversed on the appeal. (Benedict, etc., Manuf'g Co. v. Thayer, 21 Hun, 614
[1880].)
Demand for return not necessary before suit.] If the sheriff does not
return the fi. fa. by the sixtieth day after he receives, it, he is liable to an
action without being first called upon to make the return by rule or notice.
(Corning v. Southland, 3 Hill, 552 [Sup. Ct. 1842].)
Attachment to compel — an action may be brought.] A sheriff is bound
to return an execution according to the requisition of the statute; if he fails
to do so he is liable to an attachment or an action at the election of the party
aggrieved. (AVilson v. Wright, 9 How. Pr. 459 [Sp. T. 1854].)
Damages for a failure to make — proof of.] The plaintiff in an action
against a sheriff for a failure to return an execution is only entitled to recover
the damages sustained by the neglect of the sheriff; and where in such a case
63 CouETS OF Recokd. [Eule 6
it appears only that there was a small amount of property of the judgment
debtor upon which a levy could have been made, it is error for the court to
direct a verdict for the full amount of the execution, unless it appear beyond
dispute that the full amount thereof could have been realized therefrom. (Dol-
son V. Saxton, 11 Hun, 565 [Gen. T. 1877].)
^Return by thie deputy, as to the amount collected on an execution, con-
clusive on the sheriff.] In an action by the plain tiflf in an execution against a
sheriff for the moneys collected upon it, the return is conclusive evidence in
favor of the plaintiiT of the amount, and, although made by a deputy of the
sheriff, it cannot be impeached by him. (Sheldon v. Payne, 7 N. Y. 453 [1852].)
Return of an execution after action commenced — damages — effect of
return nulla bona.] After the commencement of an action brought against
the sheriff for a failure to return an execution within sixty days, he returned
the same indorsed nulla bona. Upon the trial the plaintiff proved the issuing
of the execution, and its return and indorsement after the commencement of
the action. Held, that, as the return was made by a public officer of an
official act he was bound by law to do, it was evidence in favor of the officer
making it; that, as the plaintiff did not contradict the return, he was en-
titled to recover only nominal damages. (Bechstein v. Sammis, 10 Hun, 585
[Gen. T. 1877].)
Effect of return of "not found" on the bail — their rights if the return
is false.] The return by a sheriff to an execution against the person of " not
found " subjects the bail of the defendant to an action upon his undertaking,
and is conclusive upon him. If the return is false, the bail has a right of
action against the sheriff for the damage sustained by reason thereof. (Cozine
V. Walter, 55 N. Y. 304 [1873].)
Return of " discharged on bail" — when made by new sheriff.] The old
sheriff has no right to return a writ of capias ad respondendum after he is out
of ofKce, but should deliver it to the new sheriff with the assignment of the
prisoner so that the new sheriff may return it with his indorsement of the dis-
charge of the defendant on bail, by which the plaintiff will know the situation
of the defendant. The new sheriff is not bound to give notice to the plaintiff"
of his having let the defendant to bail. (Richards v. Porter, 7 Johns. 137 [1810].
See, however, Code of Civil Pro., § 186.)
Sheriff, after expiration of his term, may complete execution of a fi. fa.]
After a sheriff' has gone out of office, he may complete the execution of a fi. fa.
(Wood V. Colvin, 5 Hill, 228 [1843].)
CORRECTION OF RETURN — A return may be corrected, after an action
for a false return has been commenced.] The return of a sheriff may be
amended by leave of coiu-t, on proper terms and on due notice, after the com-
mencement of an action for an insufficient and false return. (People v. Ames,
35 N. Y. 482 [1866].)
A corrected return may be read in evidence with the same efiect as if
originally so made.] Such a return may be read in evidence with the same
effect as if originally made in the amended form. (People v. Ames, 35 N. Y.
482 [1866].)
Omission of the sheriff to indorse the proper return on an execution —
Eule 6] General Eules of Pkactice. 63
amendable nunc pro tunc] The omission of the sheriff to indorse upon an
execution the proper return before it is filed, is amendable nunc pro tuun
after the filing; but he must pay the cos,ts of the motion. (Hall v. Ayer, 19
How. Pr. 92 [Sp. T. 1859].)
EXCUSE FOR NOT RETURNING — Permission.] What will amount to
permission to the sheriff from plaintiff's attorney to retain an execution in his
hands, beyond the return day. (Humphrey v. Haythorn, Sheriff, 24 Barb. 278
[Gen. T. 1857]. See McKinley v. Tucker, 59 Barb. 93 [Gen. T. 1870].)
Waiver of right of action for nonreturn.] If the plaintiff in an execu-
tion treats it as properly in the officer's hands, after the return day, he waives
his existing right of action for its nonreturn. (McKinley v. Tucker, 6 Lans.
214 [Gen. T. 1872].)
Plaintiff in execution, when not liable for instruction to sheriff.] The
plaintiff in an execution is not answerable for having made a deputy sheriff,
charged with its service, his agent by giving him instructions to sell goods
levied upon, upon credit, if the deputy does nothing in conformity with the
instructions, (Sheldon v. Payne, 7 N. Y. 453 [1852].)
Fees — nonpayment of.] A sheriff is entitled to prepayment of his fees
for the service of a summons and complaint, but if he serves them without
prepayment, he cannot retain them, and refuse to make a return because his
fees are not paid. (Wait v. Schoonmaker, 15 How. Pr. 460 [Sp. T. 1858].)
Stay of proceedings.] An order staying proceedings on an execution in
the hands of the sheriff, exonerates him during its continuance, from the duty
of returning the execution. If the plaintiff desires to bring the sheriff into con-
tempt, he must furnish him with proof that the stay is no longer in force.
(The People v. Carnley, 3 Abb. 215 [Sp. T. 1856].)
Submission to arbitration after judgment — sheriff cannot set it up as
an excuse for not returning an esecution.] Where a judgment was recovered
in an action for slander, from which judgment the defendant appealed to the
General Term, and afterwards the parties, by an agreement in writing and
mutual bonds of submission setting forth the pendency of the action, the
trial thereof and the appeal, submitted the action to the decision of certain
persons named as arbitrators, held, that all the legal proceedings were discon-
tinued and ended by the submission and the judgment could no longer be pro-
ceeded upon. The defendant having revoked the submission, and a motion being
made for an attachment against the sheriff for not returning an exeoution on
the judgment pursuant to a notice served on him, held, that the sheriff could
not avail himself of the submission as an answer to the motion ; that the execu-
tion was not void, but only voidable, and that the right to avoid it was personal
to the defendant, whose remedy was by motion to set aside the execution, or
for a perpetual stay of proceedings. (Grosvenor v. Hunt, 11 How. Pr. 355
[Sp. T. 1854].)
PRESUMPTION — That the sheriff began its exiecution within the lifetime
of the writ.] In the execution of a writ of possession after the return day,
it will be presumed that the sheriff began the exeoution of the process within
the lifetime of the writ. (Witbeck v. Van Pvensselaer, 2 Hun, 55 [G«n. T.
1874].)
64 OoTJKTs OF Recoed. [Eule 7,
KULE 7.
Books to be Kept by Clerk of Courts.
The clerk of the Appellate Division in each department shall
keep:
1. A book, properly indexed, in which shall be entered the title
of all actions and proceedings which are pending in that court,
and all actions or special proceedings commenced in the Appellate
Division, with entries under each, showing the proceedings taken
therein and the final disposition thereof.
2. A minute book, showing the proceedings of the coujt from
day to day.
3. A remittitur book, containing the final order made upon the
decision of each case, a certified copy of which shall be transmitted
to the proper clerk, as required by the Code of Civil Procedure.
4. A book, properly indexed, in which shall be recorded at
large each bond or undertaking filed in his office, with a statement
of the action or special proceedings in which it is given, and a
statement of any disposition or order made of or concerning it.
5. A book, properly indexed, which shall contain the name of
each attorney admitted to practice, with the date of his admission,
and a book, properly indexed, which shall contain the name of
each person who has been refused admission or who has been dis-
barred or otherwise disciplined or censured by the court. The
clerk of each department shall transmit to the clerk of the Court
of Appeals and to the clerks of the other departments the names
of all attorneys who have been admitted to practice, the names of
all applicants who have been refused admission, and the names of
all attorneys who have been disbarred, disciplined or censured by
the court. The clerk of each department is directed to enter in
the proper book the name of each attorney who has been admitted
to practice, with date of his admission, and the name of each per-
son who has been refused admission or has been disciplined, with
the date of such refusal of admission or discipline, received from
the other departments of the State, together with the date when
and department wherein the order was made.
The clerks of the other courts shall keep in their respective
offices, in addition to the " judgment book " required to be kept
by the Code of Civil Procedure :
Hule 8] General Rules of Peactice. 65
1. A book, properly indexed, in which shall be entered the title
of all civil actions and special proceedings, with proper entries
under each denoting the papers filed, the orders made and the
steps taken therein, with the dates of the several proceedings.
2. A book in which shall be entered at large each bond and un-
dertaldng filed in his office, with a statement showing when filed
and a statement of any disposition or order made of or con-
cerning it.
3. Such other books, properly indexed, as may be necessary to
enter the minutes of the court, docket judgments, enter orders and
all other necessary matters and proceedings, and such other books
as the Appellate Division in each department shall direct.
Rule 9 of 1S58, amended. Rule 11 of 1871, amended. Rule 11 of 1874,
amended. Rule 7 of 1877. Rule 7 of 1880. Rule 7 of 1884. Rule 7 of
18S8, amended. Rule 7 of 1396. Rule 7 as amended, 1910.
CODE OF CIVIL PROCEDtTEE.
§ 816. Bond or undertaking to be filed with clerk, except when a different
disposition thereof is directed.
§ 933. Certified copies of records in office of the clerk of the court made
presumptive evidence.
§ 1230. Clerk to keep judgment' book and enter judgments therein.
§ 1245. Certain clerks to keep docket-book.
I 1672. Lis pendens to be recorded and indexed.
See notes under Rule 8.
EITLE 8.
Judgments, When to be Entered and Docketed.
Judgments shall only be entered, or docketed, in the offices of
the clerks of the courts of this State, within the hours during
which, by law, they are required to keep open their respective
offices for the transaction of business, and at no other time.
Rule 9 of 1858, amended. Rule 12 of 1871. Rule 12 of 1874. Rule
8 of 1877. Rule 8 of 1880. Rule 8 of 1884. Rule 8 of 1888. Rule 8 of
1896.
CODE OF CIVIL PROCEDURE.
§ 1236. Duty of clerk as to making up judgment rolls and recording judg-
ments.
% 1237. Judgment roll to be filed — of what to consist.
§ 1238. It must be prepared and furnished to the clerk by the attorney.
% 1239. Clerk must make a minute of the filing on the back of the judgment
roll.
5
66 OouETS OF Recoed. [Rule 8
§ 1251. Real property bound for ten years by a docketed judgment.
i 1255. Time not included in the ten years.
§ 1256. Lien suspended on appeal.
§ 1319 et seq. Enforcing affirmed or modified judgment.
§ 1321. Canceling docket of reversed or modified judgment.
§ 1322. Correction of docket of judgment reversed in part by the Court of
Appeals.
§ 1323. Restitution — when awarded.
§ 1380. Continuance of lien for three years and six months in case of death.
BUSINESS HOURS — Of county clerks.] Clerks of counties, courts of
record and registers of deeds, except in the counties, of New York and Kings,
as hereinafter provided, shall respectively keep open their offices for the trans-
action of business every day in the year, except Sundays and other days and
half days declared by law to be holidays or half holidays, between the thirty-
first day of March and the first day of October next following, from eight
o'clock in the forenoon to five o'clock in the afternoon, and between the thir-
tieth day of September and the first day of April next following, from nine
o'clock in the forenoon to five o'clock in the afternoon. In the counties of
New York and Kings said offices, the sheriff's office and the offices of the com-
missioner of jurors, siiall remain open during the months of July and August
in each year from- nine o'cloclc in the forenoon to two o'clock in the afternoon,
and during the other months in the year from nine o'clock in the forenoon to
four o'clock in the afternoon. (Chap. 961 of Laws of 1895. Amended by ch.
534 of Laws of 1903.)
JUDGMENT — Authority to enter judgment.] Authority to render a judg-
ment exists only where there is an existing action, and where an order deter-
mines that no action is pending, because process has not been served, and sets
aside a notice of lien and lis pendens, there is no authority for entering a judg-
ment for defendant for coats. (Booth v. Kingsland Ave. Bldg. Assn., 18 App.
Mv. 407 [1897].)
Signing and recording judgments — judgment book.] Every interlocutory
judgment or final judgment shall be signed by the clerk and filed in his office,
and such signing and filing shall constitute the entry of the judgment. The
clerk shall, in addition to the docket books required to be kept by law, keep
a book, styled the " judgment book," in which he shall record all judgments
entered in his office. (Code Civil Procedure, § 1236.)
Omission of the clerk to sign a judgment.] The omission of the clerk to
sign the judgment roll on entering up a judgment does not affect the
validity of the judgment. It is a clerical error and a mere question of practice
and of regularity, which the Supreme Court can and will at any time allow to
be amended nunc pro tunc. (Van Alstyne v. Cook, 2o N. Y. 490 [1862];
Goelet V. Spofford, 55 N. Y. 647 [1873]; Bank v. Treadwell, 34 Barb. 553
[Gen. T. 1861]. See, however, as to service of a copy without the attestation
of the clerk being effective to limit the time to appeal. Good v. Daland, 119
N. Y. 153 [1890].)
Judgment can only be entered according to the decision rendered.]
The clerk can only enter judgment in accordance with the decision rendered.
Eule 8] General Eules of Pkactice. 67
and where the words of the referee are that the complaint " be disjnissed, with-
out costs," the clerk cannot add the words " upon the merits." (Petrie v. Trus-
tees of Hamilton College, 92 Hun, 81 [1895].)
How far it is necessary to enroU a decree.] The final decree of a court
of equity takes effect when it is made and declared by the court; and the
record, when made up, is only evidence of the decree, and simply proves it,
without adding anything to its validity. It is not necessary, even to enroll it,
except in those cases where it is required to be enrolled aa preliminary to
some further action, which the statute authorizes to be taken upon it only
after enrollment. (Butler v. Lee, 33 How. Pr. 252 [Ct. of App. 1866].)
What constitutes. A paper filed, stating the trial, verdict and costs
taxed and ordering that judgment be entered in favor of the plaintiff and
against the defendant, is not a judgment, but simply an order for judgment,
and when docketed as a judgment will be set aside. (Marsh v. Johnston, 123
App. Div. 596.)
An order modifying a judgment and expressly stated to be supplementary
to the judgment and in execution thereof, is itself a judgment, and is
appealable. (Saal v. South Brooklyn Ry. Co., 122 App. Div. 364.)
What is not a judgment.] The finding of a referee in proceedings by the
committee of the person and estate of an habitual drunkard for leave to sell
his real estate for the payment of his debts, that a claim presented is a valid
and subsisting debt against the drunkard for an amount stated, is not a judg-
ment within the meaning of section 376 of the Code of Civil Procedure.
(Sheldon v. Mirick, 144 N. Y. 498 [1895].)
The entry made by the clerk on receiving a verdict is not the judgment.]
The entry, made by the clerk by the direction of the court on receiving a
verdict, of the judgment to be rendered thereon is not the judgment. (Lentilhon
V. Mayor, 3 Sandf. 721 [Gen. T. 1851].)
The record constitutes the judgment in common-law actions.] In com-
mon-law actions no judgment is pronounced, except by the record which is
made up in the clerk's office. (Butler v. Lee, 33 How. Pr. 252 [Ct. of App.
1866].)
Judgment book and docket distinguished.] The judgment book re-
quired by section 1236 of the Code of Civil Procedure is a distinct and sepa-
rate book from the judgment docket or docket book. (Sheridan v. Linden,
81 N. Y. 182 [1880].)
——Entry of judgment on a verdict.] It is the duty of the clerk to enter
judgment in conformity with the verdict, unless the court otherwise direct.
(Morrison v. N. Y. & New Haven R. R. Co., 32 Barb. 568 [Sup. Ct. I860].)
Duty of clerk as to its entry in the judgment book.] The clerk must
enter in the judgment book " the judgment " in cases where the decision of the
court is given in writing and filed and must insert a copy of such judgment in
the judgment-roll in making it up, and sign the same. (Plankroad Co. v.
Thatcher, 6 How. Pr. 226 [Sp. T. 1851].)
Judgment not perfected until entered in the judgment book.] A judg-
ment upon a verdict is not perfected, under the Code, until entered in the
judgment book with the amount of coats (if any) recoverable, inserted therein.
68 CouETS OF Rbcoed. [Eule 8
Until so entered, it is not a judgment from which an appeal can be taken to
the Appellate Division. (Lentilhon v. Mayor, 3 Sandf. 721 [Gen. T. 1851].)
Only one decision proper on several demurrers.] Only one decision and
only one judgment arc proper in an action where several demurrers are inter-
posed. (Pritz V. Jones, 117 App. Div. 643.)
Delay of the clerk in entering a decree in the judgment book does not
affect its validity.] The delay of the clerk to enter a final decree in the judg-
ment book does not aflfect its validity. (Butler v. Lee, 33 How. Pr. 252;
S. C, 3 Keyes, 76 [Ct. of App. 1866] j Lynch v. Gas Light Co., 42 Barb. 591
[Gen. T. 1864].)
Delay of a clerk to enter a judgment of which be has given a transcript.]
When a judgment roll is filed with a county clerk, and he gives a transcript of
the judgment, which is docketed in another county, tlie lien of the judgment
in the latter county is not affected by the fact that the clerk did not enter
the judgment when the roll was delivered to him. (Steuben County Bank v.
Alberger, 78 N. Y. 252 [1879].)
Proper judgment where plaintiff recovers less than $50 and defendant
recovers costs.] Where plaintiff /eeovers less than $50 and defendant becomes,
therefore, entitled to costs it is improper to enter separate judgments; one
judgment only should be entered for the difference between the verdict and the
costs in favor of the party entitled to it. (Warden v. Frost, 35 Hrm, 141
[1885].)
Decree, date of.] A decree is properly dated the day the order was
made directing its entry. (Clark v. Clark, 52 St. Bep. 228 [Supm. Ct. 1893];
affirmed without opinion in 13i8 N. Y. 653.)
Motion in arrest of judgment must be for defects appearing on the
record.] A motion for arrest of judgment in a criminal action could not, be-
fore the Code of Criminal Procedure, and cannot now be made, save for some
defect that appears upon the record; it may not be based upon proof by affi-
davits of facts outside and constituting no part of the record. (People v.
Kelly, 94 N. Y. 526 [1884].)
^^Presumption as to lost judgment-roll.] If a judgment-roll cannot be
found in the office of the clerk the presumption is, it is lost. (Manderville v.
Reynolds, 68 N. Y. 528, 164 N. Y. 211.)
Judgment-roll — duty of clerk.] (Bacon v. Grossman, 90 App. Div.
204.)
Time for entry.] Municipal Court Act, § 239, requires that judgment
be entered immediately after verdict. A failure to do so, however, is a mere
irregularity. (Lyons v. Gavin, 43 Misc. 659.)
Entry nunc pro tunc] Where an infant bom after application for
final judgment, was a necessary party, the court had authority to direct the
entry of judgment nunc pro tunc in order to avoid any difficulty arising from
the court's retention of the case for consideration. (Jewett v. Schmidt, 108
App. Div. 322.)
DOCKET — When a decree in equity should go on the docket.] The decree
of a court of equity may never go upon the docket at all. It is only when a
certain sum is directed to be paid that it is proper to enter it upon the
docket. (Lynch v. Gas Light Co., 42 Barb. 591 [Gen. T. 1864].)
Bule 8] Gbneeal Rules of Phactice. 69
Docket sufficient to sustain an execution, though no entry is made in
the judgment book.] A docket of a judgment held sufficient to sustain an
execution, although no entry was made in the judgment book until after its •
being issued. (Appleby v. Barry, 2 Uobt. 689 [Gen. T. 1864].)
Docket, in county clerk's office, of judgment of United States court.]
A judgment of a United States court, though docketed in a county clerk's
office, still remains a judgment of that court. (Goodyear Vulcanite C!o. v.
Fris.selle, 22 Hun, 174 [1880]. See Cropsey v. Crandall, 2 Blatch. 0. C. 341;
U. S. R. S. 967; Meyers v. Tyson, 13 Blatch. C. C. 242 [1876].)
LIEN — Docket, unnecessary except to create a lien.] The docketing of a
judgment is only necessary for the purpose of creating a lien upon land.
(Whitney v. Townsend, 67 N. Y. 40 [1876].)
When the lien attaches.] The lien of a judgment does not attach until
docketed; and as the lien is entirely regulated by statute, equity cannot extend
it. (Buchan v. Sumner, 2 Barb. Ch. 165 [Chan. 1847]; Foot v. Dillaye, 65
Barb. 521 [Gen. T. 1873].)
Failure to index a judgment avoids the lien.] A judgment which the
county clerk, in docketing, omitted to index against the judgment-debtor, does
not become a lien upon his real estate, and the judgment-creditor for thajt
reason cannot issue execution upon it by leave of the court at the expiration
of a year from the death of the judgment-debtor under Code of Civil Pro-
cedure, section 1380. (Lefevre v. Phillips, 81 Hun, 232 [1894].)
When the judgment is filed with the clerk out of ofSce hours. All judg-
ments filed and docketed by a clerk out of office hours, although some may be
entered before others, take effect and become liens equally at the next office
hour after such docketing. (France v. Hamilton, 26 How. Pr. ISO [Gen. T.
1862]; Warden v. Mason, 10 Wend. 573 [1833]. See, also, Hathaway v. Howell,
54 N. Y. 97 [1873].)
Lien suspended on appeal and restored.] Where the lien of a judgment
has been suspended during an appeal by an order of the court, and an order
has thereafter been made vacating such order of suspension and restoring the
lien nunc pro tunc, the lien is subordinate to that of a judgment docketed in
the interval between the two orders. (Harmon v. Hope, 87 N. Y. 10 [1881].)
Continuance of lien.] Since the Code of Civil Procedure took effect
(§ 1251) the lien of a judgment only continues for ten years irrespective of
other rights, intervening. (Floyd v. Clark, 2 Monthly L. Bull. 36 [N. Y. Com.
PI. 1880].)
^Duration of lien.] An award made by a city for the taking of a judg-
ment-debtor's real estate for a public use, is personal property, and the ten-
year limitation as to liens on real estate has no application. (Fawcett v. City
of New York, 112 App. Biv. 155.)
Judgment against executors — what is boimd by.] (See People ex rel.
Higgins V. McAdam, 84 N. Y. 295 [1881].)
ERRORS — Amendment of.] An entry made by a clerk in his minutes may
be amended, so as to correct an error therein. (Smith v. Coe, 7 Robt. 477
ISp. T. 1868].)
^0 OouETS OF Eecokd. [[Rule 9
RULE 9.
Appearance — How Entered.
Eule 9 repealed, 1910.
CODE OF CIVIL PROCEDURE.
§ 55. A party may appear in person or by attorney.
§ 60. When resident of adjoining State may appear as an attorney — serv-
ice, how made upon him.
§ 66. Lien of an attorney. See Judiciary Law, §§ 474, 475.
§ 421. Appearance by defendant — ^how made — ^requisites of notice of.
§ 424. Voluntary appearance — equivalent to the personal service of a sum-
mons.
§ 479. Notice of appearance may contain demand for copy complaint.
§ 1995. Parties to a special proceeding by State writ — may appear by
attorney.
§ 2528. Appearance in Surrogate's Court.
§ 2886. Appearance in Justice's Court.
i§ 3364, 3365. Appearance in a condemnation proceeding.
See notes under Rule 18.
APPEARANCE — Authority of attorney assumed.] The authority of an
attorney signing a petition will be assumed unless the contrary appears.
(People ex rel. Adams v. Coleman, 41 Hun, 307 [Sup. Ct. 1886]; People v.
Lamb, 85 id. 17 [1895].)
An appearance by an attorney, without authority, gives jurisdiction.]
(Ferguson v. Crawford, 7 Hun, 25 [Gen. T. 1876] ; Brown v. Nichols, 42 N. Y.
26. See, also, Korman v. Grand Lodge of United States, 44 Misc. 564.)
No jurisdiction acquired by a notice of appearance from an unauthor-
ized attorney.] A notice of appearance from an attorney who acta without
authority confers no jurisdiction on the court. (Burton v. Sherman, 20 W.
Dig. 419 [Sup. Ct. 1884].)
Unauthorized appearance in a Justice's Court.] (Sperry v. Reynolds,
65 N. Y. 183 [1875].)
Unauthorized appearance for a nonresident.] In an action brought in
the Supreme Court of the State of New York to establish a lien on real estate
situated in that State, the unauthorized appearance of attorneys in behalf of
one of the defendants, a nonresident owner of the real estate, does not confer
jurisdiction upon the court to render a judgment directing the sale of the real
estate in satisfaction of the lien, and the nonresident is entitled, as a matter
of right, to have the judgment vacated and the appearance set aside, although
no personal judgment was demanded or recovered against such nonresident
defendant. (Myers v. Prefontaine, 40 App. Div. 603 [1899] ; Matter of Estate
of Stephani, 75 Hun, 188 [1894].)
Voluntary — effect of.] Voluntary appearance is equivalent to per-
1
Hule 9] General Eules of Peactice. 71
Bonal service. (Schwinger v. Hickox, 46 How. Pr. 114 [Supr. Ct. Sp. T. 1873] j
Code of Civil Procedure, § 424.)
Notice — not signed, etc., a nullity.] A notice in an action not signed
ty the attorney serving it, and in which his place of business is not men-
tioned, is a nullity. (Demelt v. Leonard, 19 How. Pr. 182 [Gen. T. I860];
Yorks V. Peck, 17 id. 192 [Gen T. 1858]; Brown v. Cook, 2 id. 40 [Sp. T.
1845].)
Extension of time to appear.] The court should not grant an exten-
sion of time to appear. (Bragelman v. Berding, 15 Abb. Pr. [N. S.] 22 [N. Y.
Com. PI. Sp. T. 1873].)
Appearance by executor.] Where an executor was sued, in his capacity
as executor, and also individually, he may appear in each capacity by a dif-
ferent attorney. (Roche v. O'Connor, 95 App. Div. 496.)
WHAT CONSTITUTES AN APPEARANCE — By notice of appearance or
a copy of an answer or demurrer, only.] Under section 421 of the Code of
Civil Procedure, a defendant can only appear by serving a notice of appear-
ance or a copy of a demurrer or answer. (Valentine v. Myers Sanitary Depot,
36 Hun, 201 [1885].)
When an answer verified by a defendant not a resident of the State
does not constitute a general appearance.] Where a summons is served with-
out the State, service of an answer verified by defendant or subscribed by a
person as attorney for defendant cannot be regarded as a general appearance
in the action so as to confer jurisdiction of the defendant, where the answer
sets up the fact that the defendant was not, at the time of the commence-
ment of the action, a resident of the State, and that he had no property
therein, and had not been served with a summons in this State. (Ham-
burger V. Baker, 35 Hun, 455 [1885].)
Motion, by a defendant not served.] The defendant corporation in
this case, although it had not been served with a copy of the summons and
■complaint, moved, without serving any formal notice of appearance, to have
the complaint made more definite and certain; thereupon the plaintiff procured
an ex parte order discontinuing the action as to the corporate defendant.
Held, that this was proper; that the service of the notice of motion was not
equivalent to an appearance. Under section 421 of the Code of Civil Pro-
cedure, a defendant can only appear by serving a notice of appearance or a
copy of a demurrer or answer. (Valentine v. Myers Sanitary Depot, 36 Hun,
201 [Gen. T. 1885].)
Notice of motion.] Service of notice of motion signed by an attorney
as "att'y for deft." (Ayer v. Western R. R. Co., 48 Barb. 132 [Gen. T.
1866]; Kelsey v. Covert, 15 How. Pr. 92 [Sp. T. 1857]; S. C, 6 Abb. 336, n;
McKenster v. Van Zandt, 1 Wend. 13 [Sup. Ct. 1828] ; Dole v. Manly, 11 How.
Pr. 138 [Sp. T. 1855] ; Baxter v. Arnold, 9 id. 445 [Sp. T. 1854] ; Valentine v.
Myers Sanitary Depot, 36 Hun, 201 [1885] ; Cohen v. Levy, 27 Misc. Rep. 330
[1899], See, however, as to effect of such appearance, Douglas v. Haberstro,
8 Abb. N. C. 240 [1880]. Signing a paper to produce a defendant, as attorney
for defendant, New Haven Web Co. v. Ferris, 115 N. Y. 641 [1889].)
Notice of retainer. It is as effectual as if the defendant had entered
^^ OouETS OF Ejscoed. [Rule 9
his appearance with the clerk. (Francis v. Sitta, 2 Hill, 362 [Sp. T. 1842].
See, also. Reed v. Chilson, 142 N. Y. 152 [1894].)
Notice of bail.] Notice of bail imports notice of retainer as attorney.
(Quick V. Merrill, 3 Caines, 132 [Sup. Ct. 1805].)
Notice to vacate attachment is not a general appearance.] A service
of notice to vacate an attachment, though without qualification, does not
amount to an appearance generally. (Wood v. Furtick, 17 Misc. Eep. 561
[1896].)
'Appearance upon a motion.] Where a corporation appears generally
upon the first hearing of a motion, and consents to a reference to take
testimony, it cannot afterward object to the jurisdiction of the coiurt over it.
(Ward V. Roy, 69 N. Y. 96 [1877].)
Opposing a motion for an injunction.] It was held that defendants,
by appearing in this action by counsel and opposing a motion for an injunc-
tion, and reading afiidavits in opposition to such motion, and filing the same,
with the names of their attorneys in the action indorsed thereon, and by
moving that all proceedings in the ax;tion be stayed, had submitted themselves
to the jurisdiction of the court, and appeared in the action unconditionally.
(Cooley V. Lawrence, 5 Duer, 605 [Gen. T. 1855].)
Appearance on motion for alimony.] Where a wife, after obtaining
from the New Jersey Court of Chancery a decree of divorce from her hus-
band, upon the service of process upon him by publication, makes a motion
to amend the decree by inserting therein a provision for alimony, the general
appearance on the motion of the husband's solicitor, who contests it on juris-
dictional grounds and upon the merits, operates to confer jurisdiction on that
court to render a judgment for alimony which will be recognized as valid by
the courts of the State of New York. (Lynde v. Lynde, 41 App. Div. 280
[1899].)
Affidavit and notice of motion.] Service of affidavits and notice of
motion to set aside a judgment of foreclosure entered by default, indorsed
"F. W. T., attorney for defendant L." (Martine v. Lowenstein, 6 Hun, 225
[Gen. T. 1875].)
Order extending time.] Service of an order extending the time to
answer, with a copy of the affidavit upon which it was founded, which stated
the name of the defendant's attorneys. (Quin v. Tilton, 2 Duer, 648 [Sp. T.
1853]; Carpenter v. The N. Y. & N. H. R. R. Co., 11 How. Pr. 481 [Sp. T.
1855]. See Brett v. Brown, 13 Abb. Pr. [N. S.] 295 [1872]; Thomas v. Jones,
3 Monthly L. Bull. 36 [1881].)
Procuring an extension of time to answer not an appearance.] The
procuring of an extension of time to answer by an attorney does not consti-
tute an appearance in the action nor prevent another attorney from putting
in an answer without procuring a substitution. (Benedict v. Arnoux, 1 N. Y.
Anno. Cases, 407 [1895].)
Stipulation signed " defendant's attorney."] A stipulation extending
the time to answer signed by an attorney as " defendant's attorney " does
not prevent the service of the answer by another attorney. (Paine Lumber
Co. V. Galbraith, 38 App. Div. 68 [1899].)
Eule 9] Geneeal Rules of Peactice. 73
Cross-examination by an unauthorized person not an appearance.]
The cross-examination of witnesses in a Municipal Court, by a person not
authorized, held not to constitute an appearance in the action by the party.
(Campbell v. Lumley, 24 Misc. Eep. 196 [1898].)
As to appearance for defendant residing in other State.] (See Prieh-
ard V. Sigafus, 103 App. Div. 525.
HOW DETERMINED — Decision as to, not appealable.] In an action pend-
ing in the Supreme Court, it is for that court to decide whether there was a
sufficient appearance by an attorney therein, and its decision is not appealable
to the Court of Appeals. (Martine v. Loweustein, 15 Albany Law Journal,
124 [Court of Appeals, 1877].)
An appearance in a State court, by what rules considered.] The entry
of an appearance in a State court must be interpreted by the course and
practice of that court; and that what is held in such court to be a submission
to its authority in the cause, whether coerced or voluntary, must be deemed
an appearance, and further, when such submission has once been made it can-
not be retracted. (Cooley v. Lawrence, 5 Duer, 605 [Gen. T. 1855].)
BY WHOM AND WHEN — A husband may direct an appearance to be
entered for his wife.] When the separate property of the wife is not in
question, service on the husband is a good service on the wife, and he is
authorized to direct an appearance to be put in for her. (Lathrop v. Heacock,
4 Lans. 2 [Gen. T. 1871]. See, however, White v. Coulter, 1 Hun, 366 [Gen.
T. 1874]; Nagle v. Taggart, 4 Abb. N. C. 144 [Sp. T. 1877]; Watson v. Church,
3 Hun, 80 [Gen. T. 1874]; Foote v. Lathrop, 53 Barb. 183 [Gen. T. 1869];
S. C, 41 K Y. 358.)
Effect of,, by partners, where only one has been servedi] Where a
notice of appearance for both defendants is served and accepted in an action
against partners, one of whom only was served, such appearance gives the
defendant not served all the rights of a party actually served, and the plain-
tiff is bound to accept an answer and notice of trial served on behalf of such
defendant. (Fox v. Brooks, 7 Misc. Rep. 426 [N. Y. City Ct. 1894].)
When the counsel may be regarded as the attorney.] Where a counsel,
who is to try a cause signs his name as attorney both before and after the
decease of the attorney of record, he may be deemed to be the attorney by
the opposite party. (Cambridge Valley National Bank v. Matthews, 1 Law
Bulletin 10 [Sp. T. 1878].)
When a party may appear.] A party to a suit brought for the fore-
closure of a mortgage may serve a notice of appearance at any stage of the
action (e. g., after entry of judgment), and is thereafter entitled to notice of
all subsequent proceedings. (Martine v. Lowenstein, 6 Hun, 225 [Gen. T.
1875] ; affirmed, 68 N. Y. 456.)
In person — not allowed when an attorney appears.] A party who has
appeared by attorney cannot, while the retainer continues, appear on the
record in person. (Halsey v. Carter, 6 Robt. 535 [Sp. T. 1866].)
An attorney precluded from acting after he has given a consent for
substitution to his client.] A consent for substitution given by an attorney
to his client precludes the attorney from acting subsequently in the action.
^^ OoTJETS OF Kecoed. [Eule 9
notwithstanding the fact that no order has been entered on that consent.
(Quinu V. Lloyd, 5 Abb. [N. S.] 281 [N. Y. Sup. Ct. Sp. T. 1863].)
Appearance in Justice's Oourt — effect of appearance specially in
Justice's Court and when authority ends.] (Cutting v. Jessimer, 104 App.
Div. 283.)
EFFECT OF — A waiver of want of jurisdiction over the person.] A gen-
eral appearance by a defendant is a waiver of any want of jurisdiction in the
court over his person. {Palmer v. The Phoenix Mut. Life Ins. Co., 10 N. Y.
W. Dig. 179 [Gen. T. 1880] ; Wheelock v. Lee, 15 Abb. Pr. [N. S.] 24 [Gen. T.
1873] ; Schwinger v. Hickox, 46 How. Pr. 114 [Sup. Ct. Sp. T. 1873] ; Schmal-
hotz V. Polhaus, 49 id. 59 [Supr. Ct. Gen. T. 1875], and Dieckerhoff v. Alder,
12 Misc. Rep. 445 [1895].
Jurisdiction over the person admitted by an appearance and answer.]
Where the court has jurisdiction of the subject-matter of an action, consent
will confer jurisdiction of the person, and in case of a foreign corporation
such consent may be expressed by appearing by attorney and answering gen-
erally in the action. (McCormick v. Railroad Co., 49 N. Y. 303 [1872].)
Objection to jurisdiction waived by appearance and demurrer.] Where
it was claimed that an appeal should be dismissed as to a nonresident defend-
ant, because the process was not properly served, it was held, that the de-
fendant, by appearing and demurring, thereby waived all objections to the
regularity or sufficiency of the service. (Ogdensburg & L. C. R. R. Co. v.
Vermont & C. R. R. Co., 63 N. Y. 176 [1875]. See, also, Sweetzer v. Kembert,
11 Misc. Rep. 107 [1895].)
Waives defects in service.] A general appearance, only, waives defects
in service of process. (Brett v. Brown, 13 Abb. Pr. [N". S.] 295 [Sp. T. 1872] ;
Carpentier v. Minturn, 65 Barb. 293 [Gen. T. 1873]; Mack v. American Ex-
press Co., 20 Misc. Rep. 215 [1897].)
^Voluntary appearance by the United States.] By a voluntary appear-
ance in a State court, as a claimant to a fund, the United States becomes
subject to the jurisdiction and bound by the decision of the State court.
(Johnston v. Stimmel, 89 N. Y. 117 [1882].)
— — Appearance where an attachment is issued.] A voluntary appearance
is as effective as the actual service of the summons within thirty days after
the service of an attachment. (Catlin v. Rieketts, 91 N. Y. 668 [1883].)
Appearance of nonresident by attorney confers jurisdiction.] In an
action to recover money, brought upon a Michigan judgment, the summons was
served out of the State, pursuant to an order of publication, upon defendants,
who were nonresidents. A warrant of attachment was also issued, but no
property was levied upon. Defendants entered a general appearance by an
attorney, who served a general notice of retainer. An answer was served
alleging that neither of the defendants was a resident of the State, nor had
they any property therein, and that the court had no jurisdiction. Held,
that the appearance and notice gave jurisdiction, and that a personal judg-
ment was properly rendered. (Reed v. Chilson, 142 N. Y. 152 [1894].)
An appearance for a corporation sustained, though it was improperly
served with the summons.] An appearance for a corporation by officers of the
court will be valid and give jurisdiction, whether the service of process upon
Hule &] Geneeal Eules of Peactice. 75
its officers be good or not, provided the corporation is still in. existence.
(Murray v. Vanderbilt, 39 Barb. 141 [Sp. T. 1863].)
When general appearance precludes raising the question whether the
action might be brought under Code Civil Procedure, section 1780.] A general
appearance by a foreign corporation after personal service, gives the court
jurisdiction, and precludes its raising the question, on a motion to set aside
the service, whether the afCtion is one which could be brought by a nonresi-
dent, under Code Civil Procedure, section 1780, and such question should be
raised by demurrer or answer. (Mabon v. Ongley Electric Co., 24 App. Div.
50 [1897].)
-- — Appearance by an alien and nonresident.] Where, in an action com-
menced against him, a nonresident alien appears generally, the court acquires
jurisdiction, and the fact that the appearance was put in, in order to protect
his property, imperiled by the issuing of an attachment in the action, does
not change the effect of the appearance. (Olcott v. Maclean, 73 N. Y. 223
[1878]; Reed v. Chilson, 142 N. Y. 152. See, also. Woodruff v. Austin, 16
Misc. Eep. 543 [1896].)
A general appearance by one sued in a local court — does not admit its
jurisdiction over the subject-matter.] A general appearance by a defendant
sued in a local court — as for instance, the City Court of Brooklyn — does
not waive his right to object in his answer that the court has no jurisdiction
of the subject-matter of the action, if the case is such that the only element
of locality which can exist, and the only means by which the cause can be
brought within the territorial limits of jursdiction of the court as a local
court, is the service of the summons within those limits. (Wheelock v. Lee,
5 Abb. N. C. 73 [Gen. T. City Court of Brooklyn, 1878].)
As to waiver objection to the jurisdiction of the court. (iSee Matter of
Hathaway, 71 N. Y. 238 [1877].)
^Waiver, in a case where the demurrer to the jurisdiction of the court
over the person of the defendant and the appearance is a qualified one. (See
0. & L. C. R. R. Co. v. Vt. C. R. R. Co., 16 Abb. [N. S.] 249 [Sp. T. Sup.
Ct. 1874] ; 4 Hun, 712.)
BY OWE NOT SERVED — A defendant not serrcd cannot appear.] A
defendant cannot appear and plead in a cause as a matter of course, never
liaving been served with a process. (McKnight v. Baker, 1 How. Pr. 201 [Sp.
T. 1845].)
A defendant not served cannot move to dismiss the complaint.] One of
several defendants who has not been served with a summons or complaint
cannot voluntarily appear and move to dismiss the complaint under section
274 of the Code of Procedure, where his rights are not affected. He must be
contented to remain quiet out of court until invited to appear there. (Tracy
V. Tucker, 7 How. Pr. 327 [Sp. T. 1852]. See, also, Valentine v. Myers
Sanitary Depot, 36 Hun, 201 [1885].)
A defendant against whom judgment is asked for has a right to appear
although not served.] A defendant against whom a judgment is prayed by the
■complaint, although no summons has been served on him, has a right to appear
and answer. (Higgins v. Freeman, 2 Duer, 650 [Sp. T. 1853]; and this.
'^ CouKTs OF Kegoed. [Eule 9
although he has been adjudged a bankrupt. MoLoughlin v. Bieber, 26 Misc.
Rep. 143 [1899].)
A partner not served may appear.] In an action againat partners on a
joint liability, a defendant, though not served, is entitled to appear and answer.
(Wellington v. Claason, 9 Abb. 175 [Chamb. 1859] ; Fox v. Brooks, 7 Misc. Rep.
426 [N. Y. City Ct. 1894].)
Motion by a partner not served to set aside a judgment regularly entered
against the firm.] On a motion by one partner to set aside a judgment on the
ground of collusion between the plaintiff and the other partner, entered in form
against the firm, in precise conformity to the statute ; that iSj by service of pro-
cess on one only, without any appearance by the defendant not served, the
court entertained the application, and it was held that the court should not
sanction any act which would encourage concealment and contrivance between
partners, who owe each other confidence and good faith. (Griswold v. Griswold,
14 How. Pr. 446 [Sp. T. 1S57].)
OBJECTION — To the right to appear, when it should be taken.] An objec-
tion to the right of plaintiff's attorney to appear and bring the suit, must be
raised by a motion before trial, since it is a question of practice, not of title
or jurisdiction. (People v. Lamb, 85 Hun, 171 [1895].)
PROOF OF AUTHORITY — What proof of his authority to appear required
of an attorney in an action to recover real estate.] Where the authority of
an attorney to bring an action for the recovery of the possession of real estate
adversely held is questioned by a party whose name appears as one of the
plaintiffs, the attorney must produce a " written request of such plaintiff, or
his agent, to commence such action," or a " written recognition of the author-
ity of the attorney to commence the same." (Stewart v. Bailey, 56 How.
Pr. 256 [Chamb. 1878]. See Code of Civil Procedure, § 1512.)
It is discretionary with the court to require an attorney to show his
authority to appear.] As a general rule when the right of an attorney to use
the name of a plaintiff is questioned by the opposite party, if the attorney
be a reputable member of the bar, the court 'will not, unless the action be one
for the recovery of land, require proof of the authority to be produced; but
the right of the court to require its production in all eases is undoubted,
and it will be exercised when, in its judgment, the ends of justice demand it.
(Stewart v. Bailey, 56 How. Pr. 256 [Chamb. 1878].)
Extent of inquiry as to authority.] On a motion to compel an attorney
to produce his authority for bringing an action for a foreign corporation, the
court will not go into the question whether such corporation has forfeited its
charter, nor pass on the question whether its president had power to authorize
such action. (Havana City R. Co. v. Ceballos, 25 Misc. 660 [1898].)
Ejectment — proof of authority must be filed.] In an action of eject-
ment the plaintiff's attorney may be compelled to file and serve written evi-
dence of his authority to sue. (Stewart v. Hilton, 27 Misc. 239 [1899].)
Where one appears for defendant in another State — burden of proving
authority for appearance.] (See Prichard v. Sigafus, 104 App. Div. 535.)
RELIEF FROM UNAUTHORIZED APPEARANCE — When a judgment wiU
not be set aside because an appearance was unauthorized.] Upon a motion to
Eule 9] General Eules op Peactice. 77
set aside a judgment entered by default, held, that as the appearance was reg-
ular in form, the court acquired jurisdiction of the person of the defendant,
and that, as it was not alleged that the attorneys were insolvent, the judgment
should not be set aside for the sole reason that their appearance was in fact
unauthorized. (Powers v. Trenor, 3 Hun, 3 [1874].)
■' Unauthorized appearance for one cot a partner in a firm represented.]
The unauthorized appearance by an attorney for one who claimed not to be a
partner in the firm the attorney represented held not to make the judgment
conclusive upon such party, no rights of third persona having intervened.
(American A. & P. Paint Co. v. Smith, 90 Hun, 609 [1895].)
Laches.] Relief from an unauthorized appearance will not be granted
when the moving party has been guilty of laches. (Marston v. Johnson, 18
How. Pr. 93 [Gen. T. 1856]; Fry v. Bennett, 16 id. 385 [Sp. T. 1858]; Humph-
rey V. (3hamberlain, 11 N. Y. 274 [1854]. See Burton v. Sherman, 2.0 W. Dig.
419 [Sup. Ct. 1884]; Ferguson v. Crawford, 7 Hun, 25 [1876]; Brown v.
Nichols, 42 N. Y. 26.)
Not set aside where the attorney has died and there is laches.] The
court should not grant a motion to set aside the appearance of an attorney who
has not authority to appear, when the attorney has died and there is laches.
(Vilas V. Butler, 29 St. Rep. 664 [Sup. Ct. 1890].)
When an unauthorized appearance works no injury it will not be
stricken out.] Where it is shown that an attorney who appeared in an action
was not authorized to appear therein, and that injustice will be done by allow-
ing the appearance to stand, the court, upon the application of a party whose
rights are imperiled, will take adequate measures for their protection; but
where an unauthorized appearance works no injury, a motion to strike it from
the record is properly denied. (Brower v. Kahn, 76 Hun, 68 [1894].)
No remedy in a collateral proceeding.] As a general rule and unless
some peculiar and extraordinary circumstances appear, where a party appears
in a court of record by an attorney, the objection that he was not served with
process and that the appearance was unauthorized may not be taken in a
collateral proceeding or action, but the party is confined to a motion in the
original action in order to obtain relief. (Washbon v. Cope, 144 N. Y. 287
[1895]; Vilas v. P. M. R. R. Co., 123 id. 440 [1890].)
An unauthorized appearance for a nonresident.] An unauthorized ap-
jreiarance by attorneys for a nonresident defendant in an action to establish a
lien upon real estate of such nonresident does not confer jurisdiction. (Myers
V. Prefontaine, 40 App. Div. 603 [1899].)
Appearance by person forbidden to practice.] Attorney sending one to
appear for him who is not authorized to practice cannot afterwards take that
objection. (Kerr v. Walter, 104 App. Div. 45.)
May be disputed by judgment-debtor.] Where a judgment recites that
the debtor appeared by a certain attorney, it is conclusive, but the question
of his authority to appear may be disputed in an attempt to enforce judgment.
(Korman v. Grand Lodge of U. S., 44 Misc. 564.)
PLACE OF RESIDENCE — How determined.] An attorney has the right
himself to decide where he resides. (Rowell v. MoCormick, 5 How. Pr. 337
[Sp. T. 1850] ; S. C, 1 Code R. [N. S.] 73.)
'^S CkjUETS OF Eecoed, [Rule 9
Service by mail at.] And after such decision, service by mail can only
be made by him at the place indicated, and the opposite party can only make
service upon him by mail by addressing him at that place. (Hurd v. Davis, 13
How. Pr. 67 [Sp. T. 1856]; Rowell v. McCormick, supra.)
Relates to the post ofSce.] The words "place of residence," relate to
the post office, and not to any particular locality in a town or city. Therefore,
held, that service of a copy complaint mailed at Fonda, N. Y., directed to the
defendant's attorneys " New York," was good, although the latter signed their
notice of aprpearance, "No. 52 Grove street, in the city of New York." (Oath-
out V. Ehinelander, 10 How-. Pr. 460 [Sp. T. 1855]; Rowell v. McCormick,
supra. )
FOREIGN JUDGMENT — Recital of appearance in the record of.] The rec-
ord of a judgment of another State which recites that defendant appeared by
attorney is only presumptive evidence of authority in the attorney. (Howard
v. Smith, 42 How. Pr. 300 [Supr. Ct. Gen. T. 1870] ; S. C, 1 J. & S. 124.)
WITHDRAWAL OF APPEARANCE — It may be withdrawn on payment
of costs.] When, under misapprehension as to his authority, an attorney,
instead of specially appearing in an action, appears generally, his notice of
appearance may be withdrawn upon his paying the costs of motion. (Dilling-
ham v. Barron, 26 N. Y. Supp. 1109 [N. Y. Supr. Ct. 1803]. See, also. Hunt
V. Brennan, 1 Hun, 213 [1874].)
SPECIAL APPEARANCE — What demand of notice of execution of any
reference or writ of inquiry entitles defendant thereto.] Where defendant does
not appear generally, but only demands notice of the execution of any refer-
ence or writ of inquiry which might be granted, he is merely entitled to five
days' notice of such reference, and not to notice of an application for the
appointment of a referee or to notice of motion to confirm the referee's report,
and he oannot upon motion attack the sufficiency of the evidence before the
referee. (Arkenburgh v. Arkenburgh, 14 App. Div. 367 [1897].)
An objection specially to jurisdiction is good ground for extending time
to appear generally and to plead.] Where a nonresident defendant appeared
specially to object to the jurisdiction and to move to set aside an order for
the publication of the summons in the action, held, that his motion to extend
the time to appear generally and to plead, until the determination of the appeal
taken from an order adverse to his contention, should be granted, the objec-
tion to the jurisdiction being substantial. (Everett v. Everett, 22 App. Div.
473 [1897].)
Prohibition to act not avoided by.] A new attorney prohibited, by
order, from acting cannot avoid the same by a special appearance. (Sheldon
v. Mott, 84 Hun, 608 [1895].)
By nonresident.] A nonresident may appear specially. (Reed v. Chil-
son, 142 N. Y. 152.)
REMOVAL TO U. S. COURT — Time of removal — not restricted to that
of entering appearance.] The provision of subdivision 1 of section 639 of the
Revised Statutes, requiring the petition of removal to be filed in the State
court at the time of entering an appearance of defendants, is repealed by sec-
tion 2 of the act of March 3, 1875 (Chap. 137). (La Mothe Mfg. Co. v. The
Rule 10] General Rules of Practice. 79
National Table Co. Works, 7 Reporter, 138 [U. S. Ct., S. D. of N. Y.
1879].)
As to appearance in Surrogate's Court.] (See Code of Civil Prooedure,
§ 2028. )
RULE 10.
Change of Attorneys — How Made.
An attorney may be changed by consent of the party and his
attorney, or upon application of the client upon cause shown and
upon such terms as shall be just, by the order of the court or a
judge thereof, and not otherwise.
Rule 12 of 1858. Rule 15 of 1871, amended. Rule 15 of 1874. Rule 10
of 1877. Rule 10 of 1880. Rule 10 of 1884, amended. Rule 10 of 1888.
Rule 10 of 1896.
See notes tmder Rules 9 and 11.
SUBSTITUTION — Nature of appUcation.] An application by a client to
change his attorney is not a motion in the action but is a summary proceed-
ing, addressed to the discretion of the court. The failure of a referee appointed
to determine the compensation of an attorney, to report within sixty days, does
n^ot entitle a party to end the reference by a notice under section 1019 of the
Code.
Semile, such a reference is to be deemed made under section 827 and not
section 1015 of the Code. (Matter of Doyle v. Mayor, 26 Misc. 61 [1899].)
Jurisdiction of the Supreme Court on motion or in special proceeding.]
The Supreme Court has, jurisdiction, either upon a motion or in a special pro-
ceeding, to determine controversies arising out of the professional relations of
attorneys and clients, and upon what terms attorneys shall be changed in
pending actions. (Matter of Barkley, 42 App. Div. 597 [1899].)
When allowed.] A party has no right, without showing any cause ex-
cept his own will, to substitute one attorney for another without payment of
the costs earned. (Supervisors of Ulster County v. Brodhead, 44 How. Pr. 411
[Sp. T. 1873]; Creighton v. Ingersoll, 20 Banb. 541 [G«n. T. 1855]. See Haz-
lett v. Gill, 5 Robt. 611 [Sp. T. 1866] ; Wolf v. Trochelman, Id. [Sp. T. 1866] ;
Hoffman v. Van Nostrand, 14 Abb. 336 [Chambers, 1862-].)
Substitution allowed — where the only service rendered by the original
attorney was to make an appearance.] (People's Bank v. Thompson, 63 N. Y.
St. Repr. 165 [1894].)
Payment of costs.] A substitution of attorneys may be ordered with
or without the condition of the payment of costs. (Sheldon v. Mott, 91 Hun,
637 [1895].)
What the order of substitution should direct — reference to fix compen-
sation.] An order directing substitution should not require the attorney to
give up his connection with all actions in which he is attorney for the client,
without providing for the settlement of all matters between the attorney and
client, fixing the amount due him and arranging for payment. The General
80 OouETs OF Recoed. [Eule 10
Term may appoint a referee to fix his compensation. (City of Philadelphia v.
Postal Telegraph Cable Co., 1 App. Div. 387 [1896].)
Where an attorney has been guilty of misconduct.] Where an attorney
has misconducted himself, the court will order an unconditional substitution.
(Pierce v. Waters, 10 W. Dig. 432 [1880].)
Improper and neglectful conduct.] Where the attorney's conduct has
been improper and neglectful, the court will deny its protection as to his fees,
and will direct an unconditional substitution, leaving the attorney to his action
for his fees. (Matter of Prospect Avenue, 85 Hun, 257 [1895].)
Omitting necessary parties.] Where, through an attorney's neglect, nec-
essary parties defendant were omitted, it was held that a new attorney should
he substituted without conditions, the former attorney having agreed with the
plaintiif that no expense should be incurred, and his services having been value-
less. (Reynolds v. Kaplan, 3 App. Div. 420 [1896].)
When substitution allowed.] Eight of the plaintiff, who has brought
the action under an agreement by which he represents other claims than his
own, to substitute attorneys, where that will result in a discontinuance which
will cause the other claims to be barred by the Statute of Limitations. (Hirsh-
feld V. Bopp, 5 App. Dir. 202 [1896]; 157 N. Y. 1C6.)
Right of a client to change his attorney is absolute — lien for fees.] A
client has a right to change his attorney at his own volition, whatever may ba
his motive, whether a mere caprice or a substantial reason. The relation
requires the most unlimited confidence and perfect harmony. The attorney has
no claim upon papers placed in his hands, except the lien upon them to secure
costs and fees; and even this lien will be, under certain circumstances, so mod-
ified as to compel him to produce such documents upon an emergency pressing
for their use. (Trust v. Repoor, 15 How. Pr. 570 [Supr. Ct. Sp. T. 1856];
Ogden V. Devlin, 13 J. & S. (45 N. Y. Supr. Ct.) 631 [1879]. See, also, Matter
of Davis, 7 Daly, 1 [1897].)
— — Consent of attorney alone not enough.] The consent of an attorney
himself is not sufScient to authorize the substitution of another attorney in
his place. (Buckley v. Buckley, 45 St. Rep. 827 [Sup. Ct. 1892]; F^t v. Nich-
ols, 21 Misc. 404 [1897].)
Consent of court to.] An attorney cannot be changed without leave of
the court or an order of a judge of the court. (Krekeler v. Thaule, 49 How.
Pr. 138 [Sp. T. Com. PI. 1875].)
An order ot substitution is essential.] A person cannot be substituted
as an attorney in the suit merely by filing the written consent of the first
attorney, but in all cases an order of the court is necessary to render the sub-
stitution valid. (Roy v Harley, 11 N. Y. Leg. Obs. 29 [Sp. T. 1852].)
When it takes effect.] Until the usual order of substitution is entered,
and notice thereof served, the adverse party will be entirely justified in treat-
ing only with the attorney who first appeared in the action. (Parker v. City
of Williamsburgh, 13 How. Pr. 250 [Sp. T. 1856]; Robinson v. MeClellan, 1
id. 90 [Sp. T. 1845].)
—^Service of notice without order, sufficient.] It is sufficient to serve
notice of substitution; the order need not be served. (Bogardus v. Richtmeyer,
3 Abb. 179 [Sp. T. 1856]; Dorlon v. Lewis, ! How. Pr. 132 [Gen. T. 1852].)
Kule 10] Geneeal Eules of Practice. 81
——'Where one attorney is retained, a second can act only after being duly
substituted.] Where an attorney is retained, another attorney cannot act for
the party without being regularly substituted, and the act of such second
attorney will be disregarded by the court. (Jerome v. People, 1 Wend. 298
[1828].)
Attorney retiring from a suit — when he loses his claim for compensa-
tion.] An attorney retained generally to conduct a legal proceeding enters
into an entire contract to conduct the proceeding to its termination, and if,
before such termination, he abandons the service of his client without justi-
fiable cause and reasonable notice, he cannot recover for the services he has
renclaired. The employment, however, by the client, without the consent of
his attorney, of a counsel, with whom he cannot cordially co-operate, is a
justifiable cause for his withdrawal from the case. (Tenney v. Berger, 93
N. Y. 524 [1883]; Picard v. Picard, 83 Hun, 338 [1894].)
Attorney's withdrawal not justified by a failure to pay his fees.] To
maintain his lien, the attorney must show performance on his part, or a con-
dition clearly justifying his withdrawal. Where he refuses to proceed in an
action, on the ground that his fees are not paid, and to permit another attor-
ney to conduct the cause, he may be compelled to submit to the substitution
by order of the court. (Halbert v. Gibbs, 16 App. Div. 128 [1897].)
-Wrongful substitution of attorney.] An order removing an attorney
and substituting another was hfeld erroneous, in the absence of proof of mis-
canduot or delay, where the attorney had begun a foreclosure suit under an
agreement to receive one-half of the recovery, including the costs, and where
the bond and mortgage were sold by a receiver in supplementary proceedings.
(Steenburgh v. Mller, 11 App. Div. 286 [1896].)
When an appeal is pending in the Court of Appeals ;— application should
be made to the court below.] Where, after appeal to the Court of Appeals the
appellant's attorneys at her request substitute another attorney in their place,
a motion for an order directing the former attorney to turn over the papers in
the case to the substituted attorney is not properly made in the Court of
Appeals, but should be made in the court below. (People ex rel. Hofi'man v.
Board of Education, 141 N. Y. 86 [1894]. See, also, Henry v. Allen, 147 N. Y.
346 [1805].)
A long delay justifies it.] Where there has been a long delay in the
litigation, an application by the plaintiff for a substitution of attorneys should
not be denied, but the court should determine whether substitution should be
granted, on payment of the attorney's fees or unconditionally, because of his
misconduct. (Barkley v. N. Y. C. & H. E. R. R. Co., 35 App. Div. 167 [1896].)
Opposite attorney required to permit inspection of the pleadings by a
substituted attorney.] Defendant's attorney may be ordered to allow the
inspection of the pleadings and a copy thereof to be made by a lawyer who has
been substituted for the plaintiif's attorney, when the plamtiff cannot learn
the whereabouts of his former attorney, and does not know the position in
which the action stands. (Butterfleld v. Bennett, 30 St. Rep. 302 [Supm. Ct.
1890].)
Conclusiveness of a determination of the Appellate Division requiring
82 GouETS OF Eecoed. [Kule 10
substitution.] The Supreme Court has jurisdiction and the Appellate Division
has original jurisdiction, either upon ex parte or contested motion or in a
special proceeding, to determine controversies arising out of the professional
relations of attorneys and clients, and upon what terms attorneys shall be
changed in pending actions, and such determination is conclusive upon the delin-
quent attorneys, and their privies in the action brought by them against the
client.
What delay to prosecute establishes such neglect by an attorney as will
justify the granting of an order allowing the plaintiff to substitute another in
his place, considered. (Matter of Barkley, 42 App. Div. 597 [1899].)
Attorney's rights to be protected.] Rights of attorney should be pro-
tected where no actual misconduct shown; and when attorney has rendered
services and received no compensation therefor, substitution should not be
granted without protecting his lien. (Anglo-Continental Chemical Works v.
Dillon, 111 App. Div. 418].)
Client is ordinarily entitled to change his attorney at his own volition, by
order of the court. (People v. Bank of Staten Island, 112 App. Div. 791;
Johnson v. Ravitch, 113 App. Div. 810.)
An attorney under general retainer has no implied authority to bind his
client by contract to sell land. (Matter of City of New York, 112 App. Div.
160.)
Where, after judgment is reversed, a party asks for a substitution of attor-
neys, and both the attorney and the party consent that fees be fixed by court
and declared a lien on any amount recovered, it is proper for the court to make
an order determining the amount. (Scheu v. Blum, 124 App. Div. 678.)
Court will not stipulate that bond be given.] Court cannot enter order
of substitution with the condition that a bond be given to the former attor-
ney tio secure his claim for services. (Lederer v. Goldston, 63 Misc. 322.)
As to admission of attorneys, see notes under Rule 1, supra.
As to appearance of attorneys, see notes under Rule 9, supra.
As to stipulations, see notes under Rule 11, infra.
AUTHORITY CEASES — Attorney's authority ceases, when.] The author-
ity of the plaintiff's attorney ceases on the entry of judgment. (Moore v.
Taylor, 40 Hun, 56 [1886].)
An attorney precluded from acting, after he has given a consent for sub-
stitution to his client.] A consent for substitution, given by an attorney to
his client, precludes the attorney from acting subsequently in the action, not-
withstanding the fact that no order has been entered on the consent. (Quinn
V. Lloyd, 5 Abb. [N. S.] 281 [Sp. T. 1868].)
Riile staying proceedings for thirty days after notice in case of death
or removal — not applicable after entry of judgment.] The provisions of sec-
tion 65 of the Code of Civil Procedure, to the effect that where an attorney
dies or is removed before judgment, no further proceeding shall be taken against
his client until thirty days after notice to appoint another attorney, does not
apply after judgment and preceding an appeal. (Hall v. Putnam, 23 Wkly,
Dig. 513 [Sup. Ct. 1885].)
——It ceases with the entry of judgment.] The authority of an attorney
Rule 10] General Rules of Pbactice. 8S
ceases with the entry of judgment, and the defendant may lawfully employ
another attorney to open a default without substitution. (Davis v. Solomon,
25 Misc. 695 [1899]; Magnolia Metal Co. v. Sterlingworth R. Supply Co., 37
App. Div. 366 [1899].)
As to Justice's Court see Cutting v. Jessmer, 101 App. Div. 283.
After entry of judgment, a new attorney without substitution may sign
notice of appeal.] By the entry of judgment an action is ended and the
function of the attorney ceases, and a new attorney thereafter employed by the
defeated party may sign a notice of appeal without entry of an order of sub-
stitution. (Webb V. Milne, 10 Civ. Proe. Rep. 27 [iST. Y. Supr. Ct. Sp. T.
1886].)
Substitution for the purposes of an appeal without an order.] Under
Rule 3 of the Court of Appeals, a new attorney may be substituted by a party
who contemplates an appeal to that court without an order of the court.
(Magnolia Metal Co. v. Sterlingworth R. Supply Co., 37 App. Div. 366 [1899].)
Appeal cannot be taken by a new attorney unless substituted.] An
appeal from a judgment cannot be taken by a new attorney for the party
appealing until such attorney has been properly substituted in the place of
the former attorney. (Shuler v. Maxwell, 38 Hun, 240 [Sup. Ct. 1885]. See
101 N. Y. 657; contra, Webb v. Milne, 10 Civ. Proc. Rep. [Browne] 27 [Supr.
Ct. Sp. T. 1886].)
Notice of appeal not signed by the attorney of record — objection, how
to be taken.] Where a notice of appeal is signed by an attorney other than
the attorney of record, the objection should be raised by a motion to dismiss
the appeal. (Thierry v. Crawford, 33 Hun, 366 [1884].)
Notice must come from the prevailing party.] Notice of entry of judg-
ment, in order to limit the time to appeal therefrom, must come from the pre-
vailing party or his attorney; no other party, nor the attorney representing
another party, has the power to set running the time which will bar the.
appeal. (Kilmer v. Hathorn, 78 N. Y. 228.)
When relation exists.] In order to establish relation of attorney and
client it is not necessary to show that attorney acted for the client in a legal
proceeding. (Sheehan v. Erbe, 103 App. Div. 7.)
Acceptance of service of notice of appeal, compelled.] While the author-
ity of an attorney ceases at judgment, except that he may take the necessary
steps to collect it, the attorney of record may be compelled to ajocept service
of a notice of appeal. (Magnolia Metal Co. v. Sterlingworth R. Supply Co.,.
26 Misc. 63 [1899].)
The satisfaction of a judgment by the original attorney of itecord, for
whom another has been substituted after judgment was recovered, is invalid.]
The substitution of another attorney operates as a revocation of the authority
of the original attorney of record to satisfy a judgment upon its payment, and
a satisfaction executed by such attorney is not conclusive against the substi-
tuted attorney where the judgment-debtor had notice of the substitution before
payment was made. (Mitchell v. Piqua Club Assn., 15 Misc. 366 [1895].)
Liability of attorney after relation ceases.] Where attorney acts for
client after the settlement of a claim, unless specially understood, the relation.
of attorney and client continues. (Bingham v. Sheldon, 101 App. Div. 48.)
84: CouETs OF Recoed. [Eule 10
When party entitled to order without payment of additional fees.]
Where attorney refused "for reasons satisfactory to himself" to further act
as attorney for a client, she ia entitled to an order of restitution without pay-
ment of additional fees. (Gary v. Gary, 97 App. Div. 471.)
^Applies to surrogates' courts.] Eule 10 held applicable to the Surro-
gate's Gourt in Matter of Smith, 111 App. Div. 23.
Delegation of authority.] In an action by a client against his attorney,
it is error to instruct the jury that as a matter of law the attorney could
delegate his power and authority to another without the concurrence of the
client. (Lacher v. Gordon, 127 App. Div. 140.)
LIEN OF AN ATTORNEY — Extent of it.] As to the extent of an attor-
ney's lien, see Richardson v. Brooklyn Gity & Newtown R. R. Co., 24 How. Pr.
322 [Gen. T. 1872]. (See Code of Civil Procedure, § 66.)
What it does not embrace.] An attorney's lien does not include a ref-
eree's fees, nor does it extend to all the real and personal property of the client
involved in the suit. (Hinman v. Devlin, 40 App. Div. 234.)
General indebtedness.] It does not cover any general indebtedness of
the client to his, attorney. (West v. Bacon, 13 App. Div. 371.)
Lien where a judgment is for costs only.] Section 66 of the Code of
Civil Procedure was intended to enlarge the lien of an attorney, not to limit
it, by making the lien attach from the commencement of the action; and
where the judgment is for costs only, the attorney is regarded in equity as the
owner of the judgment until he is paid for his services, (ilatter of Lazelle,
16 Misc. 515 [1896].)
Continuing an action by an attorney for the costs.] An attorney, under
the Buffalo charter, may not continue an action in the Municipal Court of
Buffalo for the wages of an unskilled laborer after a settlement by his client,
with a view to recovering the statutory costs. (Drago v. Smith, 92 Hun, 536
[1895].)
Where compensation is to be paid from proceeds of judgment.] When
an attorney renders services in an action under an agreement that he shall
receive his compensation out of the proceeds thereof, he has an equitable lien
upon or ownership, as equitable assignee, in such proceeds. (Harwood v. La
Grange, 137 N. Y. 538 [1892].)
To what it attaches.] An attorney's lien for compensation attaches to
the judgment in the hands of an assignee for value without actual notice;
a fortiori if there be such notice. (Guliano v. AMiitenack, 9 Iilisc. Rep. 562
[N". Y. Com. PI. 1894].)
The lien attaches to the judgment recovered. (Bevins T. Alvro, 86 Hun,
590 [1895].)
To what papers the lien attaches.] Attorneys employed by contractors
to procure a clear title to a right of way for a railroad have a lien on the
muniments of title of the railroad. (Hilton Bridge Construction Co. v. X. Y.
Central Railroad, 84 Hun, 225 [1895]; S. C, 145 N. Y. 390.)
Upon what property.] An attorney has a lien Tipon all deeds and papers
in his hands belonging to his client, and until he is paid the court will not
order them to be given up. (The Bowling Green Savings Bank v. Todd, 64
Barb. 146 [Gen. T. 1872]. See Code of Civil Procedure, § 66.)
E.ule 10] Genebal Kules of Peactice. 85
Lien on property in a receiver's hand.] When attorney's lien attaches
to property in a receiver's hands. (Whitehead v. O'Sullivan, 12 Misc. 577
[1895].)
Attorney's lien superior to a judgment-creditor's.] The lien of an attor-
ney for his costs and compensation on a judgment prevails over the lien of a
judgment-creditor in supplementary proceedings instituted against the party
who recovered the judgment, and notice of the lien to such judgment-creditor
is not essential to make it effective. (Dienst v. McCaffrey, 66 N. Y. St. Repr.
200 [1895].)
Satisfaction set aside.] A satisfaction piece of a judgment set aside to
the extent of the costs where a settlement of the action was made without
the knowledge of the attorney. (Roberta v. Union Elevated Railroad Co.,
84 Hun, 437 [1895].)
The judgment cannot be impeached for lack of authority.] In a pro-
ceeding to enforce an attorney's lien on a judgment, neither the judgment-
debtor nor an assignee of the judgment can impeach it for lack of authority
to prosecute the action in which the judgment issued. (Guliano v. Whitenack,
9 Misc. Rep. 562 [X. Y. Com. PI. 1894].)
Measured by taxable costs.] The lien given to an attorney by sec-
tion 66 of the Code of Civil Procedure is presumptively measured by the
amount of the taxable costs, and where more is claimed, such claim must be
protected by notice. Such a lien cannot attach to a cause of action which,
in its nature, is not assignable. (Keane v. Keane, 86 Hun, 159 [1895].)
Taxable costs the extent of the attorney's recovery.] Plaintiff's at-
torney caai recover only to the extent of the taxable costs, when in such an
action he notifies the defendant that under a contract with his client he is
entitled to a share in the recovery. (Oliwell v. Verdenhalven, 17 Civ. Proc.
R. 362 [N". Y. City Ct. 1889].)
Entitled to taxable costs as of right — disbursements.] An attorney
is entitled to the taxable costs for his services as a matter of right, but not to
disbursements, unless he proves that they were actually made. (Kult v.
Nelson, 25 Misc. 238 [1898].)
The lien extends to all provisional remedies.] A plaintiff, by executing
a release, cannot discharge a defendant who is imprisoned by the direction
of an order when plaintiff's attorney opposes such discharge, as the attorney's
lien extends to all provisional remedies which have been granted. (Crouch v.
Hoyt, 30 N. Y. Supp. 406 [Supm. Ct. 1894].)
——Not limited to services in the particular action.] An attorney has a
lien upon a fund, to be paid his client on the settlement of an action by the
parties thereto, to the extent of the general balance due him, and is not con-
fined to the value of his services in the particular action. (Canary v. Russell,
10 Misc. Rep. 597 [1895].)
No lien for general services on proceeds of a judgment paid to the
receiver of his client.] An attorney has no lien for his general services upon
the proceeds of a judgment which never came into his hands, but were paid
to the receiver of his client; but only for services rendered in the action in
8'6 Courts of Record. [Rule 10
"whi«h the judgment was recovered. (Anderson v. B. de Braekeleer, 25 Misc.
345 [1898].)
A iien does not apply to a special proceeding.] (Matter of Lexington
Ave., No. 1, 30 App. Div. 602 [1898].)
Does not embrace alimony.] In an action for separation, an attorney
is not entitled to fees from alimony awarded his client, and has no lien
thereon. (Weill v. Weill, 18 Civ. Proc. R. 241 [Sup. Ct. Sp. T. 1890].)
Lien restricted in case of substitution.] In a proceeding for the substi-
tution of an attorney in two pending suits, held, that the attorney's lien
should be restricted to the papers in his hands in the two eases. (Hinman v.
Devlin, 40 App. Div. 234 [1899].)
The attorney of record.] The attorney of record alone is entitled to
a lien on a judgment. (Kennedy v. Carrick, 18 Misc. 38 [1896].)
Counsel has not a lien.] A counsel cannot retain papers until his fees
are paid. (Brown v. Mayor, 9 Hun, 587 [1877]; Estate of Michael Sichling,
2 Law Bulletin, 98 [1880].)
An attorney cannot claim as assignee of a cause of action for per-
sonal injury.] An attorney cannot become the assignee of his client's cause
of action for personal injuries, and prosecute an action in his own behalf, after
the settlement of the controversy between the parties, the plaintiff not having
bad any right to assign his cause of action. (Oliwell v. Verdenhalven, 17 Civ.
Proc. R. 362 [N. Y. City Ct. 1889].)
Lien not assignable.] When an attorney transfers papers of a client
to a third party, on making an assignment to such party of his claim against
the client for services, the third party cannot retain possession of the papers
from the client as security for the assigned claim, but must deliver them up,
and be remitted to an action for any claim he may have against the client.
{Sullivan v. Mayor, etc., of New York, 68 Hun, 544 [1893].)
Enforced against his client's assignee.] In the case of the assignment
■of a judgment rendered in favor of his client, an attorney may enforce his
claim for compensation from the proceeds of an execution in the possession
of the sheriff, even if notice of such claim has not been given the assignee,
and the assertion by said assignee that the judgment was recovered upon a
false demand does not affect the claim of the attorney. (Marvin v. Marvin,
46 St. Rep. 259 [N. Y. City Ct. 1892].)
— Assignment of judgment — lien no answer to summary proceedings ]
"Where a transfer of the claim in suit was proposed and accepted during the
pendency of the action, but by advice of the attorney no formal assignment was
made until after judgment, the attorney will be held to have prosecuted the
action for the benefit of the assignee, and the latter may maintain summary
proceedings against the attorney to compel the payment of the moneys col-
lected by him upon the judgment.
The assertion of a lien by the attorney is not an answer to summary pro-
ceedings, but it is discretionary with the court to proceed in the matter.
In such a case the court may order a reference to ascertain the amount of
the attorney's lien. (Gillespie v. Mulholland, 12 Misc. Rep. 40 [N. Y. Com. PI.
G. T. 1895].)
Hule 10] General Eules of Practice. 87
An attorney's lien authorizes entry of judgment after his client's
death.] The defendant in an action died about 10 a. m. the same day that
the General Term of this court handed down and filed a decision affirming
an order denying a motion to vacate the judgment rendered in the action on
appeal from the order of affirmance.
Held, that it appearing that defendant's attorney had a lien on the judg-
ment for costs, he was entitled as an equitaljle assignee to enter the judg-
ment and issue execution thereon. (Peetsch v. Quinn, 6 Misc. Rep. 52 [N. Y.
City Ct. 1893].)
Proof of the extent of the attorney's lien.] Wliere a client, after issue
has been joined, settles the action, his attorney, upon prosecuting the action
for the protection of his lien to recover a certain portion of the amount
received by the client upon the settlement, is not entitled to judgment unless
he is able to establish the cause of action in issue under the pleadings. The
statement by the attorney that under an agreement with his client he was to
receive that amount for compensation, does not in itself authorize the court
to direct judgment in his favor. (Casucci v. Allegany and Kinzua R. R. Co.,
29 Abb. N. C. 252 [Supm. Ct. 1892].)
How determined.] The court has power to determine the amount of
the attorney's lien by reference. (Gillespie v. Mulholland, 12 Misc. Rep. 43
[N. Y. Com. Pleas, G. T. 1895].)
^Attorney may follow proceeds into hands of third parties.] The pro-
visions of the Code of Civil Procedure ( § 66 ) create a loan in favor of
the attorney on liis client's cause of action, and enable him to follow the
proceeds into the hands of third parties, without regard to any settlement
before or after judgment. (Peri v. N. Y. Central R. R. Co., 152 N. Y. 521
[1897].)
When a lien of attorney cannot be defeated by a setoff between the
parties to the action.] Where an attorney has a lien on an undertaking given
on appeal from an order vacating an attachment, for compensation for his
services in vacating the attachment, held that this lien could not be defeated
by a setoff between the parties to the action. (Bamberger v. Oshinsky, 21
Misc. Rep. 716 [1897].)
Does not prevent the settlement of the action by the parties.] The
provision of the Code of Civil Procedure (§ 66) giving to an attorney, who
appears for a party in an action, " a lien upon his client's cause of action, or
counterclaim, which attaches to a * * * judgment in his client's favor,"
does not prevent the parties to the action from settling the same, or the
client from releasing a judgment in his favor.
While the lien cannot be affected by a release of the judgment, and while,
it seems, if a release has the effect to defraud the attorney, the court may
and should set it aside in order to protect the lien, the judgment will not be
kept alive after the release unless necessary for the protection of the attorney.
Until the lien is asserted in some way, the judgment remains the property
of the client.
In order, therefore, to warrant the court in disregarding a settlement and
release made between the parties in an action, it must be shown that to give
88 CoTJETs OF Record. [Rule 10
full effect to them will operate as a fraud upon the attorney, or to his preju-
dice by depriving him of his costs, or turning him over to an irresponsible
client. (Poole v. Belcha, 131 N. Y. 200 [1892].)
A settlement with a destitute client set aside.] A settlement with a
destitute plaintiff after judgment, without notice to her attorney will be set
aside at his instance, to enable him to enforce his lien, although he has not
given notice of such lien. (Vrooman v. Pickering, 25 Misc. 277 [1898].)
Entry of judgment after settlement.] A judgment entered by plain-
tiff's attorney, after a settlement by the parties, though in ignorance thereof,
is irregular, and will be set aside in the absence of proof that such settle-
ment was •collusive, or that the plaintiff was irresponsible. (Publishers' Print-
ing Co. v. Gillin Printing Co., 16 Misc. 558 [1896].)
The lien does not prevent a settlement.] The existence of an attorney's
lien does not affect the validity of a settlement by the parties as between
themselves. (Williams v. Wilson, 18 Misc. 42 [1896].)
The lien is superior to a right to set off a judgment.] Semhle, that
the attorney for a defendant in whose favor a judgment for costs has been
entered upon the dismissal of the complaint, acquires a lien thereon for his
compensation, which is superior to the right of the plaintiff to set off a prior
judgment in his favor, whether he seeks to enforce such right upon a motion
or by an action. (Ennis v. Curry, 22 Hun, 584 [1880]. See, however, Sanders
V. Gillet, 8 Daly, 183 [1878].)
The settlement of an action to defeat an attorney's lien is ineffectual.]
A settlement by the client of a pending action, in order to defeat the lien of
his attorney, for the agreed compensation of one-third of the recovery, 's
ineffectual, and the attorney will be allowed to continue and prosecute the
action to establish his lien, (Astrand v. Brooklyn Heights R. R. Co., 24 Misc.
92 [1898].)
Defendant may settle action, despite attorney's lien.] The defendant
may settle the litigation without regard to his attorney, unless he has inter-
posed a counterclaim or there is fraud and collusion. (Longyear v. Carter,
85 Hun, 513 [1895].)
Protection against compromise — what constitutes a good cause of
action.] An attorney commenced an action in consideration of an agreement
under which he was to receive a percentage of the recovery, and the client
and the defendant settled the action between themselves. The attorney set
forth this agreement in the complaint in an action against said client and
defendant, and that a collusive settlement had been made between them, in
order to defeat the plaintiff of his just compensation. Held, that such com-
plaint alleged a good cause of action, and should not have been dismissed.
(Murphy v. Davis, 19 App. Div. 615 [1897].)
Satisfaction of a judgment without notice to the attorney, where the
creditor is insolvent.] A satisfaction of a judgment given by the judgment-
creditor, without the knowledge of his attorney, will be set aside on motion
of the attorney where the creditor is insolvent. (Mitchell v. Piqua Club Assn.,
15 Misc. 366 [1895].)
Control of attorney by court.] If an attorney seeks to take unfair
Rule 10] General Rules of Peactice. 89
advantage of the desire of parties to settle, he will be confined in his lien to
hia taxable costs, and such additional amount as he may be able to establish
by agreement, express or implied. (Peri v. N. Y. Central R. R. Co., 152 N. Y.
521 [1897].)
Excessive charges — retaining money for.] An attorney should not be
allowed to retain moneys of his client for what seem to be excessive charges,
where the only evidence to support them is his opinion that they were fair,
but he should be required to produce legal experts upon the question ot the
value and necessity of the services. (Matter of Raby, 25 Misc. 240 [1898].)
Lien restored when an attorney is compelled to repay an allowance.]
Where an attorney has consented to a substitution and thus lost his lien,
relying on his right to an extra allowance granted to him, an order compelling
a return of a portion of such allowance should be conditioned on terms which,
in effect, will restore his lien on his client's distributive share for his services.
(Cooper V. Cooper, 27 Misc. 595 [1899].)
Lien of attorney not affected by a conveyance to himself.] An at-
torney for one of the parties to an action to set aside a conveyance, after
judgment directing the grantee to convey to a trustee for that party, received
a conveyance of the property to himself, and at the same time executed a
declaration of trust " for the purposes expressed in said judgment, and in no
other way." Held, that this did not aflfect his lien on the premises for services
he had rendered in the action. (West v. Bacon, 13 App. Div. 371 [1897].)
Continues though the claim is barred by Statute of Limitations.] An
attorney's lien on moneys of his client in his possession, for the amount of a
general balance due him for professional services, continues to exist after and
notwithstanding his remedy by action, for the debt has become barred by
the Statute of Limitations ; and the attorney has a right to retain such money
until his account is adjusted and to have it set off a,nd applied upon his
account, in an action brought against him by the client to recover the money
in his hands. (Maxwell v. Cottle, 72 Hun, 529 [1893].)
Municipal Court of Buffalo — no lien in.] Section 66 of the Code of
Civil Procedure, giving an attorney a lien on his client's cause of action,
does not apply to the Municipal Court of Buffalo. (Drago v. Smith, 92 Hun,
536 [1895].)
Where there is no counterclaim in the answer, the lien of the defend-
ant's attorney cannot attach.] Where the defense pleaded does not purport
to be a counterclaim, and the answer does not set up facts showing a counter-
claim, there is nothing to which the lien of defendant's attorney may attach,
and he cannot have the action, which he alleges to have been settled in
defraud of his rights, continued in order to enable him to enforce them.
(White V. Sumner, 16 App. Div. 70 [1897].)
Notice by attorney of his interest in the recovery — necessary.] An
attorney must have given notice of the assignment of a part of the recovery
to him, in order to justify his moving to set aside a settlement entered into
between the parties. (Jenkins v. Adams, 22 Hun, 600 [1880].)
Notice to the defendant's attorney is not notice to the defendant..!
Notice to the defendant's attorney of the existence of the lien of the plain
90 CkjUETs OF Eecoed. [Rule 10
tiflf's attorney is not notice to the defendant, and will not protect the plain-
tiff's attorney from a settlement made by the defendant. (Wright v. Wright,
7 Daly, 62 [1877]; Peri v. N. Y. Central R. R. Co., 152 N. Y. 521 [1897].)
Notice is not necessary.] An attorney has a lien upon his client's cause
of action and upon the judgment recovered therein, to the extent of the com-
pensation agreed upon, and no notice thereof is requisite. (Lewis v. Day, 10
W. Dig. 49 [Sp. T. 1866, City Ct. of Brooklyn, 1880].)
When the attorney is regarded as an equitable assignee of a judgment.]
Where a firm of attorneys has rendered services and paid out money in an
action (which resulted in a judgment in favor of their client), and in other
actions relating to the subject-matter of the first action (such services and
disbursements equaling in value the amount of the judgment), such attorneys
may be regarded as the equitable assignees of the judgment, and they have
the right to satisfy their lien by process of execution. (Van Camp v. Searle,
79 Hun, 136 [1894]. See, also, Peetch v. Quinn, 9 Misc. Rep. 52 [N. Y. City
Ct. 1893].)
Settlement by client — effect of.] Where defendant settles after cause
is on calendar court may impose costs to the attorney. (Nat. Ex. Co. v.
Crane, 167 N. Y. 500.)
Attorneys' lien may be established although they may not be entitled
to vacate a satisfaction of a judgment.] (Corbit v. Watson, 88 App. Div. 467.
See, also, Serwer v. Sarasohn, 91 App. Div. 538.)
ENFORCEMENT OF LIEN — A special proceeding — appealable.] An ap-
plication by an attorney of record of the plaintiff to vacate a satisfaction of
judgment, executed by his client to enforce the judgment by execution to the
extent of the attorney's lien thereon, based upon facts distinct from those
passed upon at the trial, is a special proceeding and not a motion in^ the
action. Hence, an order of the Appellate Division, confirming an order grant-
ing the application, is appealable to the Court of Appeals, as an order finally
determining a special proceeding. (Peri v. N. Y. Central R. R. Co., 152 N. Y.
521 [1897].)
Collusive satisfaction of judgment, when set aside.] A collusive satis-
faction of judgment will be set aside in favor of the attorney's lien, and,
semhle, even though the satisfaction be without intent to defraud the attorney.
On a motion to set aside such satisfaction, the court, upon evidence, may
determine the extent of the attorney's lien and set aside the satisfaction to
that amount. (/6.)
Settlement of an action in fraud of attorney's rights, how vacated.]
It can only be vacated on his application made in his own name. (Murray
V. Jibson, 22 Hun, 386 [1880].)
How enforced.] Such lien may be enforced by motion in the action
itself. (Canary v. Russell, 10 Misc. Rep. 597 [Sup. Ct. Sp. T. 1894].)
Compensation and lien of attorney.] Whether agreement that attorney
shall have fifty per cent, of recovery for prosecuting action depends upon the
circumstances of each case. (Morehouse v. Brooklyn Heights R. Co., 185
N. Y. 520.)
An attorney's lien cannot be affected by settlement between client and
Eule 11] General Eules of Pkactice. 91
defendant without the attorney's knowledge and consent. (Oishei v. Penn.
Ey. Co., 117 App. Div. 110. See, also. Matter of Speranza, 186 N. Y. 280;
Oishei v. Met. St. Ry. Co., 110 App. Div. 709; Matter of Smith, 111 id. 23;
Ransom v. Cutting, 112 id. 150; Agricultural Ins. Co. v. Smith, 112 id. 840;
Sullivan v. McCann, 124 id. 126; Matter of Brackett, 114 id. 257; Van
Der Beek v. Thomason, 50 Misc. 524; Horn v. Horn, 100 N. Y. Supp. 790;
Horn V. Horn, 115 App. Div. 292; Baxter v. Conner, 119 id. 450; Heyward v.
Maynard, 119 id. 66; Crossman v. Smith, 116 id. 791; Rose v. Whiteman,
52 Miae. 210; Kneeland v. Pennell, 54 id. 43; Matter of Williams, 187 N. Y.
286 ; Matter of Goodale, 58 Misc. 182 ; Haire v. Hughes, 127 App. Div. 530 ;
Knickerbocker Invest. Co. v. Voorhees, 121 id. 690; Leosk v. Hoagland, 64
Misc. 156; Bloch v. Bloch, 131 App. Div. 859; Matter of Bergstrom & Co.,
131 id. 791; Matter of Mahar, 131 id. 420; Webb v. Parker, 130 id. 92.)
As to rights of attorney in respect of lien after he has become insane, see
Matter of Stanton, 53 Misc. 515.
Lien not affected by removal of case to United States courts. (Oishei v.
Penn. Ry. Co., Ill App. Div. 110.)
Attorney may have a lien upon his client's cause of action even though the
client be an executor or administrator. (Matter of Ross, 123 App. Div. 74.)
Attorney issuing execution to enforce his lien on a judgment should restrict
the execution to the amount of the lien. (Bloch v. Bloch, 136 App. Div. 770.)
Attorney who had successfully resisted claim of next of kin upon prop-
erty of his client, an administratrix, held to have no lien on the property.
(Matter of Robinson, 125 App. Div. 424.)
When attorney can be compelled to surrender property in his hands on
which he claims a lien. (Matter of Edward Ney Co., 114 App. Div. 467;
People ex rel. White v. Feenaughty, 51 Misc. 468.)
In action by client to recover moneys collected by an attorney, burden on
defendant to prove he was justified in having made settlement for less sura
than agreed upon between himself and client. (Harkavy v. Zisman, 96 N. Y.
Supp. 214.)
RULE 11.
Agreements between Parties or Attorneys to be in an Order or in Writing.
No private agreement or consent between the parties or their
attorneys, in respect to the proceedings in a cause, shall be bind-
ing, unless the same shall have been reduced to the form of an
order by consent, and entered, or unless the evidence thereof shall
be in writing, subscribed by the party against whom the same shall
be alleged, or by his attorney or counsel.
Rule 13 of 1858. Rule 16 of 1871. Rule 16 of 1874. Rule 11 of 1877.
Rule 11 of 1880. Rule 11 of 1884. Rule U of 1888. Rule 11 of 1896.
VERBAL STIPULATION — In court.] Verbal stipulations made by counsel
in open court, upon the argiiment of a cause, will be enforced by the court.
92 CouETs OF Eecoed. [Rule 11
especially if acted on before revocation, or entered in the minutes. [Jewett v.
The Albany City Bank [1840], Clarke's Chan. [Moak ed.] 247; and see caaes
collected in note, p. 254; Banks v. The American Tract Society, 4 Sandf. Oh.
438 [1847]; Staples v. Parker, 41 Barb. 648 [Gen. T. 1864].)
Before referee.] So also agreements, relating to the proceedings on a,
reference, made in the presence of the referee. (Ballou v. Parsons, 55 N. Y.
673 [1874]; Corning v. Cooper, 7 Paige, 587 [1839]; Livingston v. Gidney, 25
How. Pr. 1 [Sp. T. 1863].)
— — Out of court — void.] Agreements made out of court and not in v?rit-
ing, as required by this rule, cannot be enforced. (Broome v. Wellington, 1
Sandf. .664 [1847]; Leese v. Schermerhorn, 3 How. Pr. 63 [Sp. T. 1847];
Bradford v. Downs, 25 App. Div. 581 [1898].)
Agreement to settle.] An agreement in settlement of an action need
not be in writing. (Smith v. Bach, 82 App. Div. 608 [1903].)
Agreement to waive irregularities.] A stipulation to waive irregu-
larities in the issuing of a commission must be in writing. (Mason & Hamlin
Organ Co. v. Pugsley, 19 Hun, 282 [1879].)
To postpone a trial or notify counsel for a criminal.] (People v. Hag-
gerty, 5 Daly, 535 [1875].)
As to matters collateral to the action.] To what cases the rule
applies. (First Nat. Bank v. Tamajo, 77 N. Y. 476 [1879].)
As to disbursements.] (See Rust v. Hauselt, 8 Abb. N. C. 148 [1880].)
Effectual by estoppel. — When party has been misled.] The rule has no
application where a party has been led to rely on the stipulation to his disad-
vantage. (Mutual Life Ins. Co. v. O'Donnell, 146 N. Y. 275 [1895]; Mont-
gomery V. Ellis, 6 How. Pr. 326 [Sp. T. 1851]; People v. Stephens, 52 N. Y.
306 [1873] ; Wager v. Stickles, 3 Paige, 407 [1832] ; Stinnard v. N. Y. Fire
Ins. Co., 1 How. Pr. 169 [Sp. T. 1845]; Griswold v. Lawrence, 1 Johns. 507
[1806]. To the contrarjr, Connell v. Stalker, 21 Misc. 609 [1897]; Patterson
v. Knapp, 83 Hun, 492 [1895].)
AVOIDANCE OF STIPULATION — Party seeking to avoid a stipulation
on the ground of fraud.] Wliere a party or attorney, in disregard of a stipu-
lation entered into by him in the case — e. g., to change the venue — proceeds
in the cause on the alleged ground that the stipulation was obtained by fraud
and has no binding force, he assumes the peril, in case the question of fraud
is decided against him, of having all the proceedings set aside as irregular,
with costs. (Fitch v. Hall, 18 How. Pr. 314 [Sp. T. 1859].)
Stipulations — when relieved against by the court.] The court, in the
exercise of its discretion, may relieve litigants from stipulations signed by
counsel when either unadvisedly or inadvertently signed, or when, under the
circumstances revealed, the stipulations should not be allowed to stand.
(Mayor, etc., of N. Y. v. Union Ferry Co., 9 N. Y. W. Dig. 558 [G«n. T. April,
1880].)
When the court may set it aside.] Where parties can be restored to
the same position in which they would have been if no stipulation had been
made, the court may, in its discretion, set aside the stipulation. (Barry v.
Mut. Life Ins. Co., 53 N. Y. 536 [1873]; Seaver v. Moore, 1 Hun, 305 [1874].)
Eule 11] General Eules of Practice. 93
A party stipulating that certain allegations of a pleading are true can-
not thereafter claim the contrary.] (DriscoU v. Brooklyn U. El. R. Co., 95
App. Div. 146.)
EFFICIENCY OF — Enforcement of stipulation that a decision shaU be
final.] The Court of Appeals has the power to enforce a mutual stipulation
made between the parties in the court from which the appeal is taken, by
which they agreed that the decision in such case should be final, and that no
appeal should be taken. (Townsend v. Stone Company, 15 N. Y. 587 [1857].)
Stipulation as a cause of action.] An action brought upon a stipulation
is brought upon a new contract, and when supported by a new consideration
it is enforcible. (Davidson v. Davidson, 29 App. Div. 629 [1898].)
Judgment modified under a stipulation — effect of an appeal and
reversal of the judgment.] Power of the court on appeal to modify a judg-
ment upon a stipulation of the parties, and to afBrm it as modified. Effect
upon such stipulation of an appeal to the Court of Appeals by the unsuccess-
ful party, and his obtaining there a general judgment of reversal and a new
trial. (Crim v. Starkweather, 32 Hun, 350 [1884].)
Use of stipulation upon second trial.] A stipulation by an elevated
railroad company, whereby it waives certain objections, is not affected by a
reversal of the original judgment, and it will control the court upon a second
trial. (Hine v. N. Y. Elevated R. R. Co., 149 N. Y. 154 [1896]. See, also,
Clason V. Baldwin, 152 id. 204 [1897]; Converse v. Sickles, 16 App. Div. 49
[1897].) And upon appeal from the judgment rendered thereon. (Ryan v.
Mayor, 154 N. Y. 328 [1897].)
Power of the Attorney-General to waive right to appeal.] The
Attorney-General has power to waive his right to appeal or to discontinue an
action brought by him under the provisions of the act authorizing him to
institute suits for the purpose of annulling certain contracts for canal repairs.
(People V. Stephens, 52 N. Y. 306 [1873].)
Stipulation not to appeal.] A stipulation not to appeal is a proceeding
in the cause, and a waiver in consideration thereof of the right to move to
dismiss an appeal is a waiver of a substantial right. (People ex rel. Burby v.
Common Council of Auburn, 85 Hun, 601 [1895].)
Violation of stipulation — effect of.] Where a stipulation was made
npon the entry of a judgment, that execution should not issue until the
amount of a certain claim in favor of the debtor against the plaintiff had
been adjusted, and in violation thereof a transcript of the judgment was filed
and execution was issued, and an order obtained to examine the judgment
debtor, held, that the execution should be set aside and the order vacated.
(Eames v. Bagg, 8 App. Div 541 [1896].)
Abandonment of stipulation.] Where a stipulation contemplates a
speedy trial, which the party evades, his opponent may regard it as aban-
doned. (Crowell V. Crowell, 91 Hun, 638 [1895].)
94r CouETS OF Record. [Rule 13
aULE 12.
Consents to Payment of Money Out of Court to be Acknowledged.
All consents providing for the payment of money out of court
shall be acknowledged before an officer authorized to take the ac-
knowledgment of deeds, accompanied with proof of the identity
of the applicant from some person other than the applicant, before
any order is granted thereon.
Rule 17 of 1871. Rule 17 of 1874, amended. Rule 12 of 1877. Rule 12
of 1880, amended. Rule 12 of 1884. Rule 12 of 1888. Rule 12 of 1896.
CODE OF CIVIL PROCEDURE.
§ 614. Money paid into court on injunction staying proceedings after ver-
dict, report or decision — paid to the party stayed on his giving an
undertaliing.
§ 744a et seq. Regulations concerning the payment of money into court and
the disposition thereof.
§ 751. Money paid into court to be paid out only on a certified order of
court, countersigned by the presiding judge.
§ 1563. Partition sale — when proceeds paid into court.
§ 1&33. Mortgage foreclosure by action — disposition of surplus.
§ 2361. Sale of real estate of infant, etc. — disposition of proceeds.
§ 2404. Mortgage foreclosure under statute — disposition of surplus.
§ 2786. Surrogate's sale, mortgage, etc. — proceeds to be paid into court.
See Rule 69; Ch. 750 of 1904.
EUIE 13.
Arrest — Injunction — Attachment — Recital of the Grounds Thereof in
the Order.
Every order of arrest, as well as every injunction or attachment,
shall briefly state the grounds on which it is granted.
Rule 13 of 1877. Rule 13 of 1880. Rule 13 of 1884. Rule 13 of 1888.
Rule 13 of 1896.
CODE OF CIVIL PROCEDURE.
§ 561. Contents of an order of arrest.
§ 610. The injunction order — ^must briefly recite the grounds therefor.
§ 641. The warrant must briefly recite the ground of the attachment.
STATEMENT OF GROUNDS — Failure of order to state the grounds Of
injunction — an irregularity.] When the order refers to the complaint and
an affidavit on which an injunction is granted, copies of which containing the
Eule 14] Geneeal Rules of Peactice. 9'5
grounds on which the order was made are served on the defendant, the lack of
the statement of the grounds in the order is a mere irregularity. (Church v.
Haeger, 66 St. Eep. 681 [1895].)
Failure to correctly state the grounds of attachment in the warrant —
how amended.] A failure to state in the warrant the ground for the attach-
ment does not necessarily make it void, and if the affidavit on which it is
issued is sufficient, a defect in the warrant, by reason of the recital in the
disjunctive, may he amended within CJode Civil Procedure, section 723, to make
it correspond to the affidavit. (Stone v. Pratt, 90 Hun, 39 [1896].)
What is a sufficient statement of the "grounds of the attachment."] A
recital in a warrant that defendant " has assigned, disposed of or secreted hij
property " refers to one class only of the grounds set forth in Code Civil Pro-
cedure, section 636, and aa a sufficient compliance with section 641. (Sturz v.
Fischer, 15 Misc. 410 [1896].)
Use in the alternative of eqmvalent terms in defining an offense is not
a ground for vacating an order of arrest.] An order of arrest which, in stating
the grounds thereof as required by Rule 13, states that the ground " is the
conversion of money embezzled or fraudulently misapplied by said defendant
in the course of his employment as attorney for the aforesaid James T. Quail,
deceased," is not fatally defective because framed in the alternative, as the
court, in using the words " embezzled or fraudulently misapplied," merely
defined, by the use of equivalent terms, the offense which justified the issuing
of the order. (Quail v. Nelson, 39 App. Div. 18 [1809]. See, also, Rogers v.
IngersoU, 103 App. Div. 490.)
Warrant of attachment.] Reciting in the alternative is stating neither
fact, and a warrant so stating is fatally defective. (Cronin v. Crooke, 143
N. Y. 352; Brandley v. Am. Butter Co., 60 Misc. 547.)
Improper attachment.] An attachment based on statements to a mer-
cantile agency, without affidavit of any officer or agent of the same, vacated.
(Philip Becker & Co. v. Bevins, 102 N. Y. Supp. 144.)
When court has power to amend warrant of attachment, 59 App. Div. 128
(King V. King).
See notes imder Rule 3.
RTTIE 14.
Discovery of Books, Papers and Documents, When Compelled.
'Application may be made in the manner provided by law to
compel the production and discovery or inspection vrith copy of
books, papers and documents relating to the merits of any civil
action pending in court or of any defense of such action, in the
following cases:
(1) By the plaintiff, to compel the discovery of books, papers or
documents in the possession, or under the control, of the defendant,
which may be necessary to enable the plaintiff to frame his com-
plaint or to answer any pleading of the defendant.
96 Courts of Eecoed. [Rule 14
(2) By the defendant, to compel the like discovery of books,
papers or documents in the possession, or under the control, of the
plaintiff, which may be necessary to enable the defendant to answer
any pleading of the plaintiff.
(3)' Either party may be compelled to make any discovery of
book, document, record, article or property in his possession or
under his control or in the possession of his agent or attorney, upon
its appearing to the satisfaction of the court that such book, docu-
ment, record, article or property is material to the decision of the
action or special proceeding, or some motion or application therein,
or is competent evidence in the case, or an inspection thereof is
necessary to enable a party to prepare for trial.
Eule 14 of 1858. Rule 18 of 1871. Rule of 1874, amended. Rule 14 of
1877. Rule 14 of 1880. Rule 14 of 1884. Rule 14 of 1888, amended. Rule
14 of 1896.
CODE OF CIVIL PROCEDURE.
§ 803. A court of record may direct discovery or an inspection and copy of
books, etc.
§ 804. The General Rules of Practice to prescribe the eases in which it may
be had and the modes of procedure.
§ 806. Petition for discovery and order thereon directing the party to allow
it or show cause.
§ 806. Order granting discovery, when and by whom it may be vacated.
§ 807. Proceedings upon the return of the order to show cause — referee may
be appointed to superintend the discovery.
§ 808. Penalty for disobedience of order.
§ 809. Effect as to boolcs, etc., the same as if they were produced upon
notice.
§ 866. Records not to be removed by virtue of suijjosna duces tecum, when.
§ 867. Production of books under order of subpcena duces tecum which must
be served five days before, — relief allowable.
§ 868. Production of books and papers of a corporation compelled in the
same manner as if in the hands of a natural person.
§ 869. When personal attendance not required by suhpoena duces tecum —
public office and officer of corporation.
§ 873. Physical examination of the plaintiff in an action for personal in-
juries.
§ 929. Books of a foreign corporation, when evidence.
§ 930. When a copy thereof is evidence.
§ 931. How such copy must be verified.
§ 1878. Discovery in judgment-creditor's action — how compelled.
Kule 14] General Eules of Peactice. 97
§ 1914. Subsidiary action for discovery abolished.
§ 2538. Provisions as to discovery, applicable to Surrogate's Court.
POWER OF COURT — Code of Civil Procedure, §§ 803-808, is a virtual
re-enactment of the Revised Statutes.] An application for an inspection and
copy of books and papers must now be had under sections 803-808 of the Code
of Civil Procedure, which are a virtual re-enactment of the provisions of the
Revised Statutes upon this subject. (Cutter v. Pool, 54 How. Pr. 311 [N. Y.
Com. PI. Sp. T. 1877].)
To annex document to commission to examine witness.] The court has
no power in an action upon a draft to order it to be annexed to a commission
issued to take the examination of witnesses residing out of the State. (Butler
V. Lee, 32 Barb. 75 [Gen. T. I860]; S. C, 19 How. Pr. 383.)
A discovery can only be had under section 803, etc., of the Code.] The
only mode by which a discovery of books and papers can be obtain?d before
trial is under sections 803, 804, 805, etc. (Martin v. Spofiford, 3 Abb. N. C.
12.5 [Chamb. 1877].)
The examination of parties or production of their books cannot be com-
pelled under the provisions of the Revised Statutes as to perpetuating testi-
mony.] The examination of parties as witnesses, or the production of their
books, cannot be compelled under the provisions of the Revised Statutes to
perpetuate testimony. (Keeler v. Dusenbury, 1 Duer, 600 [Sp. T. 1853].)
The rules of the Supreme Court do not unite the remedies for discovery
under the Code and the Revised Statutes.] The rules of the Supreme Court
(14-17) regulate the proceedings for the discovery of books, papers and docu-
ments, both under the Revised Statutes and under the Code, but do not and
cannot unite or confound the two remedies. (Pindar v. Seaman, 33 Barb.
140 [Gen. T. I860].)
An examination of the adverse party and a discovery of his books can-
not both be had in one proceeding.] It seems, that an examination of the
adverse party and a discovery and inspection of his books and papers cannot
be had in one proceeding, and the provisions of section 388 of the Code of
Procedure relating to the latter object, cannot be invoked to sustain an order
for the former object. (Havemeyer v. Ingersoll, 12 Abb. [N. S.] 301 [Sp. T.
1871].)
Discovery of books and papers is a proceeding independent of the right
to their production on the trial, or by a party examined before the trial.]
The right to inspection of books and papers with a view to the discovery of
evidence is distinctly recognized by statute, and is not to be confounded with
the production of them as evidence upon the trial, or on the examination of
a party as a witness before trial. (Lefferts v. Brampton, 24 How. Pr. 257
[N. Y. Com. P. Gen. T. 1862].)
Order for inspection granted when contract provides for it.] Where
contract provided that plaintiff was to have a certain share of profits, which
were to be adjusted every three months, in an action to recover for these
profits, it was held that plaintiff was entitled to an order allowing him to
7
98 CkiTJETS OF Eecoed. [Rule 14
inspect the books, although he had not served hia complaint. (Ballenburg v.
Wahn, 103 App. Div. 34.)
Action in equity will not lie.] Action in equity will not lie for the
sole purpose of procuring discovery and inspection of books. Code remedy was
intended to be exclusive. Eice v. Peters, oS Misc. 381.
Of deed.] In an action to set aside a deed on the ground of fraud,
plaintiff may be permitted inspection of the deed in question, although s,ummons
only has been served. Peck v. Peck, .57 Misc. 95.
NOT A RIGHT — Given only in extreme cases.] It is not a matter of
right to inspect books and papers, and the privilege is not given except in ex-
treme cases, where the refusal may involve the loss of a claim or defense.
(Harbison v. Van Volkenburgh, 5 Hun, 454 [Gen. T. 1875].)
Examination of books denied where it would be a hardship to the de-
fendant.] There is no absolute right upon the part of a plaintiff to have an
examination of the defendant's books, in order that he may frame a com-
plaint with more particularity than he would be able to do without such in-
spection.
When it is apparent that such an inspection would be a great hardship if it
should be finally determined that the plaintiff had no right of recovery, an or-
der of that description should not be granted unless the same is absolutely
necessary to enable the plaintiff to frame his complaint. (Ward v. New York
life Ins. Co., 7S Hun, 363 [1894].)
The manner is discretionary with court.] The court has power to order
a contract to be deposited with the clerk for inspection or to leave the party
to an examination before trial or a subposna duces tecum. (Stillwell v. Priest,
85 N. Y. C49 [1881].)
^Where inspection is in the discretion of the Special Term.] (O'Gorman
V. O'Gorman, 92 Hun, 605 [1895].)
SURROGATE — Powers of.] Equitable powers of a surrogate to compel
the books and papers of an estate to be opened to the inspection of a litigant.
(Matter of Stokes, 28 Hun, 564 [1883].)
May direct issuance of commission to examine party before trial. (Matter
of Plumb, 135 N. Y. 661.)
PROCEDURE — Proper procedure to obtain inspection.] The mode of making
applications for discovery, etc., under the Revised Statutes and the Code,
stated. (Hoyt v. Exeh. Bank, 1 Duer, 652 [Gen. T. 1S53] ; see Code of Ovil
Procedure, § 805.)
Discovery of corporate books — compelled by mandamus.] The Su-
preme Court has power, by mandamus, on petition of a stockholder, to compel
the corporation to exhibit its books for his inspection. (Matter of Steinway,
159 N. Y. 250, affg. 31 App. Div. 70 [1899].)
Practice in proceedings for production of books and papers.] Under the
present Code of Civil Procedure a party cannot be compelled to produce his
books and papers, for the examination and inspection of his adversary before
trial, except in the mode pointed out in article 4 of chapter 8 of the Code. The
proceeding must be begun by a veriiied petition praying for the discovery or
inspection sought, and the only order that can be made in the first instance is
JLule 14] General Rules of Peacticb. 99
the one directing the party against whom the discovery or inspection is asked
to allow it, or in default thereof to show cause why it should not be done.
(Dick V. Phillips, 41 Hun, 603 [1886].)
Requisites of petition for discovery.] A petition for the discovery of a
copy Book of a iirm, alleged to have been the undisclosed principals in the
buying of certain goods, to recover the price of which the action was brought,
is defective if its statements in regard to some of the material facta alleged
are made upon information and belief, and are unsupported by the affidavit of
the plaintiff's informant.
The petition in such a proceeding is in tlje nature of a pleading, and although,
when duly verified, its allegations, made on the personal knowledge of the peti-
tioner, are to be accepted as proofs, yet its statements, made on information
and belief, are mere allegations, and do not partake of the nature of proofs.
Among the things most essential to be shown to the court, in proceedings of
such a character, are the facts from which the court may determine that the
book or paper, of which discovery is sought, contains some matter material to
the issue in the action, the discovery of which would be to the advantage of
the party seeking the discovery. (Goodyear Rubber Company v. Gorham, 83
Hun, 342 [1894].)
Service of motion papers.] All papers to be used upon a motion for dis-
covery should be served before the motion is made, and the court should reverse
an order granting such a motion when it has been made upon a petition on
information and belief, and on writings which were not attached to the petition
as served. (Smith v. Seattle, Lake Shore, etc., Ry. Co., 47 St. Rep. 283 [Sup.
Ct. 1892].)
If the discovery is insufficient or defective, an order to show cause is
proper.] On the return being made to the first order, the petitioner, if he
deems it insufficient, should apply for an order that the opposite party show
. cause at a certain time why the particular deficiencies or omissions, alleged
should not be supplied. (Hoyt v. Exch. Bank, 1 jDuer, 652 [Gen. T. 1853].)
For what purpose an inspection can be had.] Discovery and inspection
cannot be granted, except for the purpose of preparation of pleadings or for
trial, aud after plaintiff has pleaded he cannot need discovery before the cause
is at issue. (Thompson v. Railway Co., 9 Abb. [N. S.] 230 [Gen. T. 1870].)
To frame a complaint — granted.] Discovery granted to enable plaintiff
to frame his complaint, despite a yearly rendering of account by defendant.
(Churchill v. Loeser, 69 St. Rep. 754 [1895].)
— ■ — Inspection granted to enable plaintiff to amend complaint. (Bloomberg
V. lindeman, 19 App. Div. 370 [1897].)
When not granted. An examination of a defendant, to enable the plain-
tiff to frame a complaint based upon business dealings between such defendant
and a corporation, in which the plaintiff is a stockholder, should not be granted
before the plaintiff has exhausted the ordinary avenues of information by
inspecting, or attempting to inspect, the books of account of the corporation.
(Nathan v. Whitehill, 67 Hun, 398 [1893].)
To frame an answer, denied.] Inspection of notes to assist in framing
answer denied. (Earle v. Beman, I App. Div. 136 [1896].)
100 CouETS OF Recoed. [Rule li
Not allowed after service of an amended complaint and before joining a
new issue.] Though issue waa joined after service of the original complaint,
an order for discovery cannot be obtained if an amended complaint is served
until after a new issue is joined thereon. (Meet v. Cronin, 5 App. Div. 48
[1896].)
Must be after suit brought.] There must be a suit pending when the
petition is presented. (Code Civil Procedure, § 803.)
When discovery not ordered before complaint tiled.] When no complaint
has been filed and the nature of the relief sought by the action is not shown
by the affidavit, the merits of the case cannot appear, and the court in its
discretion should not compel the production of books, (Keeler v. Dusenbury,
1 Duer, 660 [1853].)
What the petition must show.] Before serving complaint, petition for
order of discovery must show that plaintiff does not possess the facts for
which inspection is sought. (Daunenburg v. Heller, 88 App. Div. 548; Sutter
V. City of New York, 89 App. Div. 494.)
SUBPCENA DUCES TECUM — Subpoena duces tecum insufficient.] In
such a case a subpoena duces tecum would not meet the exigencies of the case,
for without the books no adequate preparation for the trial could be made.
(Allen V. Allen, 33 St. Rep. 876 [Sup. Ct. 1890]; appeal dismissed, see 125
N. Y. 724.)
A party under examination before trial — not required to produce
papers on subpoena duces tecum.] In the Supreme Court a party to an action
will not be compelled to produce his books and papers by siiipcena duces tecum
while under examination as a witness before trial under section 873 of the
Code of Civil Procedure. (Martin v. Spofford, 3 Abb. N. C. 125 [Chambers,
1877]; De Bary v. Stanley, 5 Daly, 412 [N. Y. Com. PI. Gen. T. 1874].) See
next paragraph.
A party examined before trial may be required by subpoena duces tecum
to produce books, etc.] A party examined before trial under sections 390 and
391 of the Code of Civil Procedure may be required by suhpcena duces tecum
to produce books and papers, but they will be used upon the examination in
the same way only, as if so produced upon his examination as a witness at
the trial. (Smith v. McDonald, 1 Abb. N. C. 350 [N. Y. Sup. Ct. Chamb.
1876].)
No discovery where a subpoena duces tecum will suffice.] Whether an
action be denominated one in equity for an accounting, or at common law for
a breach, the damages recoverable are substantially the same, and the tak-
ing and stating of an account is necessary to reach a proper result. In either
event plaintiff may enforce the production of defendant's books by suhpanui
du<!es tecum in ample time for all his purposes, and when that can be relied
on with safety there is no necessity for an inspection or discovery upon a
motion like the present. (Dal'zell v. Fahys Watch Case Co., 5 Misc. Eep. 493
[N. Y. Supr. Ct. Gen. T. 1893].)
Discovery not allowed where suhpcena duces tecum would effect the
same results. (Holtz v. Schmidt, 2 Jones & Spencer, 28 [Supr. Ct, 1871].)
Remedy by subpoena duces tecum.] The plaintiff cannot obtain an
order for the discovery of defendant's books and papers, but must resort to a
Uule 14] Geneeal Kules op Peactice.
suipoena duces tecum, when in an action to recover his commissions i ^^
it appears that he kept an account of his transactions, and that defendant
had offered to give him all the information he might desire in regard to
every policy he should procure, the name of the insured therein being fur-
nished by him to defendant. (Perls v. Met. Life Ins. Co., 32 St. Hep. 44 [N. Y.
Com. PI. 1890].)
When subpoena duces tecum insufficient.] When a subpoena duces
tecum will not meet the exigencies of the case. (Allen v. Allen, 33 St. Rep.
876 [Sup. Ct. 1890]. Appeal dismissed, see 125 N. Y. 724.)
That a paper may be produced on the trial by subpoena duces tecum
is not conclusive.] The fact that papers, sought to be discovered preparatory
to trial, may be procured by suhpwna duces tecum served upon the adverse
party, is not a conclusive answer to an application for an order for their dis-
covery. But if the court sees that obtaining the proof in that way is as
practicable as by a discovery, the motion will be denied. (Low v. Graydon,
14 Abb. 443 [Chamb. 1862].)
See Harburgh v. Middlesex Securities Co., 110 App. Div. 633.
NAMES — Not allowed to ascertain.] The court cannot grant a discovery
to ascertain the names of persons proper to be made parties to the action,
but only to help the plaintiff in stating his cause of action. (Opdyke v.
Marble, 18 Abb. 266 [Sp. T. 1864]; affirmed, 44 Barb. 64 [Gen. T. 1864].)
Books — examination of, with ulterior purpose.] An application for an
inspection of books of account of plaintiff's intestate should not be granted,
where the real purpose of the discovery is to obtain information whether an
allegation of the answer is true. (Mclnnes v. Gardiner, 27 Mise. Rep. 124
[1899].)
LACHES.] An order will not be granted where there is a want of due
diligence on the part of the applicant, or gross negligence, if not bad faith.
(Hooker v. Matthews, 3 How. Pr. 329 [Gen. T. 1848]; S. C, 1 Code R. 108;
Sivins V. Mooney, 54 Misc. Rep. 68.)
Delay in moving.] A party desiring an inspection of an instrument,
for the purpose of preparing for trial, should not wait imtil the cause is upon
the day calendar before applying therefor. (Moran v. Vreeland, 29 App. Div.
243 [1898].)
REFEREE — Power will not be delegated to.] The court wiU not, in a
common law action, in and by an order of reference, give the referee power
to compel the production of books and papers. (North v. Piatt, 7 Robt. 207
[Sp. T. 1867]; Hoyt v. Exchange Bank, 1 Duer, 652 [Gen. T. 1863].)
Certificate of a referee.] A certificate of a referee that the production
of the papers, etc., is necessary on a trial pending before him, presumptively
sufficient to warrant the making of the order. (Frazer v. Phelps, 3 Sandf.
741 [Gen. T. 1865] ; S. C, 1 Code R. [N. S.] 214.)
AFFIDAVIT OR PETITION — Application not denied, because made by
motion instead of on petition.] An application for discovery of books and
papers in possession of a party, though made under the provisions of the Code
of Procedure, is not to be denied on the ground that it should have been by
petition instead of on motion. (Johnson- v. Mining Co., 2 Abb. [N. S.] 413
102 CouETs OF Recoed. [Eule 14
[Sp. T. 1867].) See, however, Code of Civil Procedure, § 805, and Dole v.
Fellows (5 How. Pr. 451 [Sp. T. 1851].)
Verification by attorney and not by party — no afSdavit of merits —
insufiScient.] An application was made before answer, by a defendant, for
the inspection of a paper material to his defense. The petition was verified
by his attorney, and not by defendant, no reason therefor being assigned,
except a statement that the defendant did not reside in the attorney's county.
The petition did not contain an affidavit of merits. Held, that the applica-
tion was defective in both of these particulars, and should be denied.
(Fromme v. Lisner, 63 Hun, 290 [1892].)
AppUcation by afSdavit — it need not be made by the party — con-
tents.] It seems that if a proper case for discovery should be made by affi-
davit instead of a petition (which is required by the Revised Statutes) an
order should be granted; and that it is not necessary that the facts should
be made to appear by the oath of the party. They may be shown by the
oath of any other person. Nor is it necessary for the party to swear that
the books, etc., are not in his posesssion or under his control. It is enough
for him io show that they are in the possession of the adverse party. (Ex-
change Bank v. Monteath, 4 How. Pr. 280 [Chamb. 1849]. See, however.
Code Civil Procedure, § 805.) Not denied because not made on petition.
(Johnson v. Mining Co., 2 Abb. [N. S.] 413 [Sp. T. 1867].)
Where the facts are peculiarly within the attorney's knowledge.] Un-
less the facts on which a motion is founded are peculiarly within the knowl-
edge of the attorney, the affidavit must be made by the party. (Phelan v.
Rycroft, 27 Misc. Eep. 48 [1899].)
The allegations must be definite and positive.] An affidavit on which
a motion for a discovery of books and papers is made, which merely alleges
that there are in the possession of the defendants various letters, receipts
and accounts, in the handwriting of the moving party, " containing evidence
in relation to the subject of the action," and " to the merits of the action," is
not sufficient to enable the court to pass upon the question whether the con-
tents of such books and documents are at all material as evidence in regard
to any issue in the action. The plaintiff is not entitled to the inspection of
all of such books merely to obtain information how or in reference to what
matters to get other evidence. Nor is it sufficient that such books may
possibly furnish such evidence. The documents must be set fiorth with suffi-
cient precision to enable the court to determine for itself whether they ought
to be produced as containing material evidence. (Merguelle v. Note Company,
7 Robt. 77 [1868].)
The affidavit to obtain a discovery must be specific and positive.] An
affidavit to support an order for the discovery of books and papers must state
specifically what information is wanted, and that the books and papers
referred to contain such entries; and must state this positively, not on in-
formation and belief, and the absence of a party will not excuse the want of
such positive affirmation, xmless the affidavit at least sets forth the sources
and grounds of such information and belief. (Walker v. Granite Bank, 19
Abb. Ill [Gen. T. 1865]; Low v. Graydon, 14 Abb. 443 [Chamb. 1862];
Kule 14] Geneeal Rules of Practice. 103
Speyers v. Torstrich, 5 Robt. 606 [Sp. T. 1866] ; Jackling v. Edmonds, 3 E. D.
Smith, 539 [Gen. T. Com. PI. 1854] ; People v. Rector Trinity Church, 6 Abb.
177 [Sp. T. 1858]; Casaard v. Hinman, 6 Duer, 695 [Sp. T. 1857].)
Petition not sufficiently explicit — for examination of defendant before
trial and production of books.] Where the petition did not specify the
accounts in the books, as to which an inspection was sought, and it was
not alleged, nor did it appear, that an inspection of the books would disclose
material evidence to be used upon the trial, it was held that an inspection
was inadvisably granted. It seems that the proper course in such a case is
to examine the defendant before trial and to produce his books at the
examination. (Keilty v. Traynor, 31 App. Div. 115 [1898].)
Inspection refused because petition was not explicit.] Petition for a
discovery of documents denied where it did not point to the places where the
information sought for existed, nor describe the entries except by stating
their supposed effect as evidence rather than their intrinsic character. (New
England Iron Co. v. N. Y. Loan & Improvement Co., 55 How. Pr. 351 [N. Y.
Sup. Ct. Sp. T. 1878].)
On what application to establish a partnership, the motion will be
denied because of the indefinite nature of the affidavit.] Where the necessity
of an examination is alleged to be that such books will show that the defend-
ants are partners; that they contain entries of moneys received and paid by
one of the defendants, and a statement of his aecoimt; but the affidavits do
not allege the character of a single entry which the court can determine to
be material, a motion for a discovery will be denied. (Kaupe v. Isdell, 3 Robt.
699 [Sp. T. 1865].)
An affidavit, on information and belief, is not a sufficient ground for
an inspection.] An affidavit, on information and belief, that the books of a
corporation or individuals will show the names of the proper defendants, is
not sufficient foundation for an order for the discovery of such books.
(Opdyke v. Marble, 18 Abb. 266 [Sp. T. 1864].)
Mere information and belief as to entries being in existence is insuffi-
cient.] In an action against a bank to recover money received by it from
the sale of securities deposited with it, the court will not order a discovery
of entries in its books merely on an affidavit of the plaintiff, alleging that
he is informed and believes that there are entries relating thereto. (Walker
V. Granite Bank, 19 Abb. Ill [Gen. T. 1865].)
Advice and belief.] Advice of counsel and belief of deponent are not
sufficient. (Strong v. Strong, 3 Robt. 675 [Gen. T. 1865] ; S. C, 1 Abb. [N. S.]
233; Wilkie v. Moore, 17 How. Pr. 480.)
The facts must be stated to the court.] On a motion for an inspection
of papers, the moving affidavits alleging the nature of the action, the fact
that several letters had been written by the plaintiff, that they constituted
the agreement set up in the answer, that they were material and necessary to
the defense, and contained evidence relating to the merits, and that without
them defendant could not safely proceed to trial, were held insufficient, as
facts should be given which would enable the court to determine for itself
104: CoTJETs OF Recoed. [Kule 14
whether the evidence was material. (Broolclyn Life Ins. Co. v. Pierce, 7 Hun,
236 [1876] ; McAllister v. Pond, 15 How. Pr. 299.)
Affidavit, on information and belief, when sufficient.] Although some
of the statements in an affidavit are made upon information and belief, a
petition for the inspection of books may be based thereon, if such affidavit
contains positive material averments which are supported by the affidavit
of an accountant who, in another action, has made an examination of such
books. (Kings Co. Bank v. Dougherty, 40 St. Eep. 811 [Sup. Ct. 1892].)
The papers should be specifically set forth in the petition.] The peti-
tion for a discovery should set forth specifically the papers and documents
required. (Jacklin v. Edmonds, 3 E. D. Smith, 539 [N. Y. Com. PI. Gen. T.
1854].)
Requirements as to the verification to the petition.] The rule requir-
ing the petition to be verified by affidavit, stating that the books and papers
whereof discovery is sought, are not in the possession nor under the control of
the party applying therefor, and that he is advised by his counsel, and verily
believes, that such discovery is necessary to enable him to plead or prepare
for trial must be observed. ( Jaekling v. Edmonds, 3 E. D. Smith, 539 [N. Y.
Com. PI. Gen. T. 1854].)
IT MUST BE NECESSARY — When the necessity does not exist.] A party
cannot compel the production of books, etc., unless it appears that such pro-
duction is indispensably necessary, and not simply a precautionary measure.
Such necessity does not exist when the party applying may have in his pos-
session, or under his control, the means of acquiring all the information which
he seeks to obtain. (Campbell v. Hoge, 2 Hun, 808 [Gen. T. 1874] ; Woods v.
De Figaniere, 25 How. Pr. 522 [Gen. T. 1863]; S. C, 1 Robt. 681; McAUister
V. Pond, 15 How. Pr. 299 [Sp. T. 1858]. See Whitwarth v. Erie R.. R. Co., 5
Jones & Spencer, 437 [Supr. Ct. 1874].)
When the witness can be required to produce books.] It is only when
necessary for the examination of a witness that he can be compelled to produce
hooks and papers; he cannot be made to do so before trial and independent of
his examination. (Bloom v. Pond's Extract Co., 27 Abb. N. C. 366 [N. Y.
Supr. Ct. 1891].)
' Necessity therefor, must be shown.] To entitle a party to a discovery
of a paper before trial the party applying must show, to the satisfaction of the
court, that it is in writing; that some necessity exists for its inspection, and
that its production is essential in the defense of the action. (Bien v. Hellman,
2 Misc. Rep. 168 [N. Y. Supr. Ct. 1893].)
Not allowed when other relief exists.] A discovery will not be granted
where the petitioner can have all the relief the nature of his case requires by
pursuing the ordinary practice. (McKeon v. Lane, 2 Hall, 520 (N. Y. Super. Ct.
1829].)
An application, when the papers could be produoed on the examination of
a party before trial, denied.] The application for a discovery of documents
before trial should be denied, where it is clear that they may be produced on
an examination, before trial, of an adverse party under a suhpcena duces tecum
when the object only is to prove circumstances as the foundation of relevant
Eule 14] Genekal Eules of Peactice. 105
inferences rather than a fact proximately probative of an issue. (Iron Com-
pany V. Loan Company, 55 How. Pr. 35 [Sp. T. 1878].)
The applicant must show that he cannot obtain the information else-
where.] The statute has pointed out the only mode by which a discovery of
books and papers can be obtained before trial. To do so the party applying
must not only show what he wants, but also prove that he cannot obtain the
information elsewhere. (Hauseman v. Sterling, 61 Barb. 347 [Gen. T. 1872].)
By evidence of witness.] Not allowed where the evidence can be
obtained by the examination of a third person, or of a party, as a witness.
(Stalker v. Gaunt, 12 Leg. Obs. 132; Holtz v. 'Schmidt, 2 J. & S. 28 [Gen. T.
1871]; Low V. Graydon, 14 Abb. 443 [Sp. T. 1862]; Com. Bank v. Dunham,
13 How. Pr. 541 [Sp. T. 1856]; Brevoort v. Warner, 8 id. 321 [Sp. T. 1853].)
If the only object of the examination be to see if there exist any de-
fense it will be denied.] An application on the part of the defendant after
answer, for an order for the inspection of plaintiff's books and papers relating
to the matter, will be denied, if it appears that the whole object of the examina-
tion is to see if there be a defense. (Herbert v. Spring, 1 N. Y. Monthly Law
Bulletin, 21 [N. Y. Supr. Ct. Sp. T. 1879].)
When defendant's right not defeated.] A defendant's right to a copy
of a document under sections 803 and 804 of the Code of Civil Procedure will
not be defeated by the affidavit of plaintiff's officer that the plaintiff believes
it is only a scheme to devise technical defenses to avoid a fair and honest
liability. (Title G. & S. Co. v. Culgin Pace Contg. Co., 66 Misc. Pep. 157.)
Inspection, when denied, to establish payment.] Where no such necessity
is shown in the moving papers, but the plaintiff who admits that the claim
in suit grows out of a mistake made in an account settled some years ago,
" verily believes that defendant's check book " will show such mistake, and
asks inspection thereof, and the defendant pleads payment and an account
stated, held, that the Code of Civil Procedure does not authorize an application
of this kind to enable a party to prepare for trial, and if it did the defense of
payment is a fact to be established by the defendant, and not by the party
applying for the inapeetion. (Cutter v. Pool, 54 How. Pr. 311 [N. Y. Com. PI.
Sp. T. 1877].)
— The evidence must be material.] The court must be satisfied that the
books or papers contain evidence relating to the merits of the action. It is
not enough that the party believes or is advised that the paper contains ma-
terial evidence. Facts must be shown to support s,uch belief. The paper itself
must contain the evidence; it is not enough that it will furnish information
from which material evidence may be obtained. (Morrison v. Sturges, 26
How. Pr. 177 [Sp. T. 1863] ; Thompson v. Erie R. E. Co., 9 Abb. [N. S.] 212
[Gen. T. 1870]; Kaupe v. Isdell, 3 Robt. 609 [Sp. T. 1865]; Walker v. Granite
Bank, 44 Barb. 39 [Gen. T. 1865]; S. C, 19 Abb. Ill; Pegram v. Carson, 10
id. 340 and note [Gen. T. I860]; S. C, 18 How. Pr. 519; Davis v. Dunham,
13 id. 425 [Gen. T. 1855]; Wilkie v. Moore, 17 id. 480 [Sp. T. 1858].)
SEAiING UP IMMATERIAL MATTER — Right of a party producing
books, etc., to seal up portions thereof.] It is the right of a party when he is
106 CouETs OF Recoed. [Rule 14
required to produce books for inspection upon reference, if such books contain
accounts and transactions which in no way relate to the subject of examination,
to seal up such parts of the books so that they shall not be exposed to the
observation of those who have no right to examine them. ( Titus v. Cortelyou,
1 Barb. 444 [Sp. T. 1847].)
An aflSdavit that certain sealed portions of a book do not relate to the
case is sufiScLent to protect them from examinations.] Where books are pro-
duced by a party upon a reference with portions thereof sealed up, his affidavit
stating that those portions do not relate to the matters of the reference is
to be taken in the first instance, as suiiicient to protect them from examina-
tion. But if the adverse party can show any fair grounds for supposing the
parts sealed up to be material, the court may order them to be opened. (Titus
v. Cortelyou, 1 Barb. 444 [Sp. T. 1847].)
Proper procedure to cause sealed portions of the books to be opened.]
But before coming to the court for an order directing the opening of those
parts of the books which have been sealed up, the adverse party should first
apply to the referee for such an order. (Titus v. Cortelyou, 1 Barb. 444 [Sp.
T. 1847].)
WHAT DOCUMENTS — What documents parties will be compelled to pro-
duce.] The remedy extends to all evidence of a documentary nature, relating
to the merits of the action, whether on the part of the prosecution or defense.
(Townsend v. Lawrence, 9 Wend. 458 [1832].)
Of a plan, in an action for breach of contract.] The discovery of a plan
to enable a plaintiff to frame his complaint for breach of contract in stopping
work is properly refused where it appears that the plaintiff had made a written
contract to excavate rock according to a plan, the contract not providing that
he should do all the work the plan called for, and where it appears that he
bad been paid for all he had done. (Marrone v. N. Y. Jockey Club, 37 St. Rep.
936 [Sup. Ct. 1891].)
Of a duplicate contract.] \^Tiere it appears that plaintiff has no copy of
a contract in possession of defendant, an order for the discovery of a duplicate
copy may be granted. (Smith v. Seattle, Lake Shore & Eastern E. R. Co., 41
St. Rep. 672 [Sup. Ct. 1891],)
A defendant in an action to foreclose a mortgage entitled to inspect it
and have it photographed.] A defendant in an action to foreclose a mortgage,
purporting to have been executed by her and her deceased husband upon her
real property, setting up the defense of forgery, is properly allowed an inspec-
tion of the bond and mortgage, and permission to take photographic copies of
the signatures, to enable her to prepare for trial. (Holmes v. Cornell, 7
N. Y. W. Dig. 375 [Gen. T. 1878].)
Inspection of instrument sought to be set aside as a forgery allowed.]
In an action to set aside as forgeries and void a bond and mortgage, the
plaintiff was allowed an inspection. (Cornell v. Woolsey, 19 Alb. Law J. 242
[Gen. T. 1879].)
Letters — production of, compelled.] Plaintiff will be compelled to pro-
duce a letter, in his possession, written by him to the defendant, and his answer
thereto, written on the same paper, when it is shown that they contain evi-
Hule 14] Geneeal Rules of Peactice. KY!
dence that plaintiff lias no legal demand. (Livermore v. St. John, 4 Robt.
12 [Gen. T. 1866].)
Letters and letter-press copies are papers and documents.] Letters and
letter-press copies in the possession of one of two defendants, necessary as
evidence to prove knowledge of a contract between the plaintiff and the other
defendant, were held to be papers and documents, and material to the decision
of the action, and clearly within subdivision 3 of Rule 14. (New York Bank
Note Co. v. Hamilton Co., 5 App. Div. 126 [1890].')
Letter in an executor's hands.] The court may allow a letter in the
possession of an executor, who is a defendant in an action, to be inspected
where it is apparent that no harm could come from its production. (Travers
V. Satterlee, 51 St. Rep. 458 [Sup. Ct. 1893].)
Original letters received by plaintiff's intestate.] An order may be
granted allowing the discovery and inspection of original letters received by
plaintiff's intestate from defendant, and copies, in case originals have been
lost, of letters sent to defendant by plaintiff's intestate. (Harding v. Field,
46 St. Rep. 628 [Sup. Ct. 1893].)
Examination of a machine imposed as a condition.] The court cannot
compel the defendant, who asks to examine the plaintiff before trial, to allow
the attorney for the plaintiff to examine a machine upon which the plaintiff
was injured. (Cooke v. Lalance Grojean Mfg. Co., 29 Hun, 641 [1883].)
Books and documents — to enable defendant to prepare a counterclaim.]
A defendant who has a claim against the plaintiff for commissions upon sales,
the particulars as to which are contained in books or documents in the exelusivei
possession of the plaintiff, is entitled to an inspection of such books and docu-
ments in order to obtain the necessary information to enable him to state the
amount of his coimterdaim with accuracy. (The Albany Brass & Iron Co. v.
Hoffman, 12 Misc. Rep. 107 [Sup. Ct. Sp. T. 1895].)
That books contain false entries is no answer to an application.] It
ia no answer that the books contain entries which the corporation claims have
been falsely and deceptively made by one of its officers (who is a defaulter in
respect to the transactions evidenced by said entries, and who has absconded),
which entries, if unexplained, would exonerate the applicant for discovery from
liability, and which can only be explained by the testimony of such officer, and
that the discovery sought was of such false and deceptive entries, when the
applicant had in his dealings with the officer a right to assume that he was
acting under the authority of the corporation. (Central National Bank v.
White, 5 Jones & S. 297 [Supr. Ct. 1874].)
Compelling production of accounts.] A motion to compel defendant to
produce his accounts should not be denied merely because the plaintiff cannot
require an accountuig from him in an action to recover a percentage or com-
missions. (Vieller v. Oppenheim, 75 Hun, 21 [1894].)
Books of a domestic corporation.] An order for the inspection of the
defendant's books of account is proper, in an action brought against a domestic
corporation to obtain the specific performance of its contract to pay dividends
on its preferred stock and for an accounting, pending before a referee, where
the treasurer of the defendant, having produced some of its books before
108 Courts of Record. [Rule 14
the referee under a subpoena duces tecum, issued by the plaintiffs, refuses to
permit a bookkeeper designated by the plaintiffs to examine the same, although
repeatedly requested so to do by the referee and by the plaintiffs' attorney.
(Rutter V. Germicide Co. 70 Hun, 403 [1893].)
Of boundary line and monument.] Qiuere, as to whether a terminal line
tree on which certain marks and symbols have been placed which tell the true
line of a lot of land may be deemed a document within the meaning of section
803 of the Code of Civil Procedure. (Hayden v. Van Cortlandt, 84 Hun, 150
[1895].)
In an action to set aside a preferential assignment.] In an action to
set aside a preferential assignment and chattel mortgage the court should
allow the inspection of papers and books. (Bundschu v. Simon, 23 Civ. Proc.
R. 80 [Sup. Ct. 1893].)
Assessment-roll and warrant, when they must be deposited for plaintiff's
inspection.] In an action upon an official bond of a tax collector the court
may direct the latter to deposit for plaintiff's inspection the assessment-roll
and warrant held by him to enable plaintiff to prepare the complaint. (Board
of Education of Clean v. King, 7 Civ. Proc. R. 64 [Sup. Ct. 1885].)
Deposit of a note.] The defense in an action to recover on a promis-
sory note, claimed to have been made by defendant's, testator, was based upon
an allegation that such note was forged, and the court, refusing to gra.nt the
application of defendant for discovery of letters written to plaintiff by deceased
in regard to the note, directed the note itself to be deposited with the clerk.
(Dryer v. Brown, 24 Abb. N. C. 59 [Sup. Ct. 1889], modified and afifirmed in
24 Abb. N. C. 144.]
Deposit of bank books, etc.] Deposit of notes and copies of book entries
when ordered of a national bank. (Continental Natl. Bank v. Myerle, 29 App.
Div. 282 [1898].)
Inspection of goods leplevined.] When goods which have been re-
plevined are reclaimed by defendant an order should not be granted allowing
plaintiff to inspect such goods. (Downer v. McAleenan, 42 St. Rep. 672
[N. Y. City Ct. 1891].)
WHEN DENIED — Inspection of letters denied.] A motion for an order
allowing the inspection of letters in plaintifPs hands should be denied, unless
the application states that they will be put in evidence, or it is, certain that
defendant's case will be benefited by such evidence. (Halsted v. Halsted, 3
Misc. Rep. 618 [N. Y. Supr. Ct. 1893].)
Proof as to the existence of the books.] An application for the dis-
covery of the books of a party residiag in a foreign country should not be
granted simply upon the statement of the petitioner that such books exist,
when it is apparent that he can have no knowledge in regard to the keeping of
such books or their entries. He must prove satisfactorily that such books
exist, and that material evidence will be furnished by certain entries therein.
(Frowein v. Lindheim, 25 Abb. N. C. 87 [Sup. Ct. 1890].)
Denial of possession of books.] Whether an order to produce and make
discovery of books should be vacated depends upon the circumstances of the par-
ticular case, and the order will not necessarily be vacated because the party
Kule 14] General Rules of Peactice. 109
required to produce the books makes affidavit that he lias neither possession
nor control of tlie boolcs in question. (Holly Manfaeturing Company v. Venner,
86 Hun, 42 [1895].)
Order denying an attachment when a part only of the books are pro-
duced — not appealable — proper remedy.] Wliere a defendant, on being re-
quired to produce his, books and vouchers and to render an account, produced
certain account books but declined to render any further or other account, and
the plaintiff obtained a general order to show cause why he should not be
attached for contempt for not producing the required account, held, that an
order denying the attachment was not appealable.
It seems that the application for an attachment is properly denied in such
a case, and that the plaintiff, to enforce hia demand for the account, should
move for an order instructing the defendant that he had not complied with thrf
requirements, and directing him to render a further account. (Ackroyd v.
Ackroyd, 2 Abb. [N. S.] 380 [Gen. T. 1866].)
Inspection not allowed, where the books could be produced on the trial
by subpoena duces tecum.] Discovery not allowed where the defendants were
competent witnesses and could be com'pelled by subpwna duces tecum to bring
their books, etc., into court. (Commercial Bank of Albany v. Dunham, 13
How. Prac. 541 [Chamb. 1856]; Van Zandt v. Cobb, 12 How. Prac. 544 [Sp. T.
1855].)
Where the books of a physician contain confidential statements of his
patients.] (Lowenthal v. Leonard, 20 App. Div. 330 [1897].)
Fishing excursion — discovery of books.] Petition, when insufficient as
being merely a fishing excursion. (Brownell v. Nat. Bk. of Gloversville, 10
N. Y. Wkly. Dig. 17 [Gen. T. April, 1880].)
Articles, when not submitted to the inspection of experts.] A party
cannot be compelled to submit articles which are the subject of the action, and
are neither books, documents nor papers, nor evidence of themselves, to be
inspected by third persons in order to enable them thereby to qualify them-
selves to testify as experts as to the quality of such articles. (Ansen v. Tuska,
1 Rob. 663 [Gen. T. 1863]; S. C, 19 Abb. 391.)
Inspection to determine value of bookkeeper's services.] In an action
brought to recover for services rendered as bookkeeper, an inspection of the
books of the defendants should not be ordered to enable plaintiff to have them
examined by an expert, so that he may testify from their appearance as to
the value of services rendered in keeping them. (Miner v. Gardiner, 4 Hun,
132 [1875].)
When discovery not allowed where there is a denial of possession of
papers.] If, in answer to an order for discovery and inspection, or for sworn
copies of books, etc., the opposite party denies, fully and explicitly, that there
are any such entries, books or papers under his control, that is an end to the
application. (Hoyt v. Amer. Exchange Bank, I Duer, 562 [Gen. T. 1853] ;
S. C, 8 How. Prac. 89; Woods v. De Figaniere, 25 id. 522 [Gen. T. 1863];
S. C 1 Rob. 659; Ahoyke v. Wolcott, 4 Abb. 41 [Sp. T. 1856].)
Denial of possession of books — when defendants should explain lost
control or possession.] Where the existence of the books is not denied, it is
110 Courts of Ejscoed. [Eule 14
incumbent upon the defendants to satisfy the court how and in what manner
they had lost control or possession of them. Mere allegations that the books
were no longer in their possession or under their control are insufficient. (Mc-
Creery v. Ghormley, 6 App. Div. 170 [1896].)
Discovery denied because papers were not in defendant's possession.!
Upon an application for discovery of papers alleged to be in the possession of
defendant, the latter denied such possession, but admitted that some of the
papers had been given to his attorneys by a third person and were in their
hands. Held, that the motion for discovery was properly denied on the ground
that the papers were not in the possession of or under the control of the
defendant. (Douglass v. Delano, 20 Wkly. Dig. 85 [Sup. Ct. 1884].)
Not granted pending motion for reargtunent of an appeal from an order
denying it.] Pending the decision of a motion for reargument of an appeal
from an order which denied the inspection of books and papers an order should
not be granted allowing such inspection. (Smith v. Seattle, Lake Shore, etc.,
Ey. Co., 49 St. Eep. 805 [Sup. Gt. 1892].)
Suspicious applications — denied.] Applications of this nature will be
scrutinized by the court, and will be denied when indefinite and made under
circumstances of suspicion. (Jackling v. Edmonds, 3 E. D. Smith, 539 ['N. Y.
Com. H. Gen. T. 1854].)
Reference ordered after denial of discovery, improper.] Upon a proceed-
ing taken under the provisions of section 803 et seq. of the Code of Civil Pro-
cedure for the discovery of certain books and papers, the court made an order
directing the filing with the clerk of a certain assignment but otherwise denied
the motion, with costs, with leave to the plaintiff to renew his application for
inspection. The order contained a further provision directing a reference to
take proof of what books and papers the defendant had the power to produce
for inspection, and also gave the plaintiff the right to cross-examine the defend-
ant in relation to such production. The defendant appealed from that portion
of the order which directed a reference and permitted the plaintiff to cross-
examine the defendant. Held, that after the motion had been decided by deny-
ing the plaintiff's application for a discovery, there was no motion or proceeding
before the court, and it had no power to order a reference; that the portion of
the order appealed from affected a substantial right of the defendant and was
reviewable upon its merits under the Code of Civil Procedure (§ 1347, subd. 4).
(Francis v. Porter, 88 Hun, 325 [1895].)
Denied after an examination of a party before trial.] After the defend-
ant had been examined as a party before trial in an action brought by an
assignee of one who claimed to be a partner in the firm which had been dis-
solved by the death of a partner, and had denied that the plaintiff's assignor
was a partner of his, a motion waa made by the plaintiff for a discovery and
inspection of defendant's books and papers. Held, that such inspection was
properly denied, as no competent evidence had been adduced that the books
contained entries establishing a partnership. (luioch v. Funke, 39 St. Eep. 139
[N. Y. Supr. Ct. 1891].)
Order made subject to the party's right to apply to be relieved there-
from.] An application granted, but providing that in case it was shown that
Eule 14] General Eules of Peactice. Ill
the papers were not in the possession of the corporation, nor within its con-
trol, nor that of its officers or employees, it could apply to be relieved from
the terms of the order requiring it to file the same for inspection, and that it
could then be determined whether a reference should be ordered to ascertain
the whereabouts of the same. (Sibley v. N. Y. Times Pub'g Co., 80 Hun,
561 [1894].)
Discovery and inspection not allowed in an action for libel.] The
Revised Statutes authorize the court to compel discovery and inspection of
books and papers only in cases where it would have been allowed by the prin-
ciples or practice of the former Court of Chancery, and, therefore, it is not
allowable in an action for libel. (Opdyke v. Marble, 18 Abb. 266 [Sp. T.
1864].)
^Discovery not granted for the purpose of ascertaining the names of
proper parties.] The court cannot grant a discovery to ascertain the names
of persons proper to be made parties to the action, but only to help the plain-
tiff' in stating his cause of action. (Opdyke v. Marble, 18 Abb. 266 [Sp. T.
1864]; aflfd., 44 Barb. 64.)
First Department — practice in.] It is the uniform practice in the First
Department to deny applications to compel the production of books and papers
on the examination of a party before trial. (Hauseman v. Sterling, 61 Barb.
347 [Gen. T. 1872] ; De Bary v. Stanley, 5 Daly, 412 [Com. PI. Gen. T. 1874] ;
S. C, 48 How. Plrac. 349.)
Production of books and papers only required to aid the party in pre-
senting his own case.] An order compelling the production of books and papers
for inspection will not be granted unless it is needed to aid the party seeking
it to present his own case. (Sanger v. Seymour, 42 Hun, 641 [1886].)
Motion by one defendant to compel another defendant to produce docu-
ments.] A motion by one defendant to compel another defendant te produce
documents for the support of the cause of action set up in the answer a»
against the latter is not allowable in a case in which the cause of action is
new and independent of the one alleged in the complaint. (Raflferty v. Wil-
liams, 34 Hun, 544 [1885].)
Discovery of papers not proper to enable the plaintiff to ascertain the
defendant's defense.] An order for the discovery of papers is not proper to
enable the plaintiff to ascertain what evidence defendant may be able to pro-
duce on the trial to prove his alleged defense. (Douglass v. Delano, 20 Wkly.
Dig. 85 [Sup. Ct. 1884].)
Suit in equity for an accounting.] A plaintiff suing in equity for an
accounting under an agreement to divide the profits of stocks sold by the
defendant is not entitled to discovery and inspection of the defendant's books
and papers prior to an interlocutory judgment directing an accounting. (Moore
V. Reinhardt, 132 App. Div. 707.)
DESCRIPTION OP DOCUMEKT — Documents must be described.] The
documents must be specifically stated. (Speyers v. Torstrieh, 5 Rob. 606
[Sp. T. 1866]; Jackling v. Edmonds, 3 E. D. Smith, 539' [Gen. T. Com. PI.
1854]; People v. Rector Trinity Church, 6 Abb. 177 [Sp. T. 1858].)
112 CouETs OF Recoed. [Rule 14:
What descripUon of the document is required.] On motion for discovery
the applicant ia not required or expected to give an accurate description of the
document sought. The description need only be sufficiently precise to enable
the party who is called on to produce to know what is required. (Low v.
Graydon, 14 Abb. 443 [Chamb. 1S62].)
The particular books and papers must be specified and their materiality
shown..] A petition by one party for an order directing the other party to
make a discovery of books and papers in his possession will not be granted
when it prays for discovery generally of all the books, papers and correspond-
ence of the adverse party, containing entries during a period of several years,
relating to purchases of a specified commodity. The petition must show that
entries affecting or throwing some light on the matters in controversy exist,
or enough to call upon the adverse party to answer whether they do or not,
that they are material and state enough, if not denied, so that the court can
see they are material, in addition to stating the other matters prescribed by
the rules regulating such applications. (Cassard v. Hinman, 6 Duer, 695
[Sp. T. 1857].)
WHEW GRANTED — That a discovery might criminate defendant is no
answer.] The fact that the discovery might establish misconduct on the part
of the defendants and thus criminate them is no answer to the application.
(Duff V. Hutchinson, 19 Wkly. Dig. 20 [Sup. Ct. 1884].)
The excuse is a personal one — bar of the Statute of Limitations.
(McCreery v. Ghormley, 9 App. Div. 221 [1806].)
To frame pleadings. (Churchill v. Loeser, 69 N. Y. St. Rep. 754 [1895];
Earle v. Beman, 1 App. Div. 136 [1896]; Bloomberg v. Lindeman, 19 id. 370
[1897]; Board of Education of Olean v. King, 7 Civ. Proc. R. 64 [Sup. Ct.
1865].)
Examination of the books by an expert.] T!ie motion of the plaintiff to
compel the defendant to produce his books in order that they may be exam-
ined by an expert should not be denied merely because plaintiff, himself, might
previously have made such examination. (Vieller v. Qppenheim, 75 Hun, 21
[1894]; Lord v. Spielman, 13 Misc. Eep. 48 [1895].)
When inspection allowed in doubtful cases.] If there be reason to
believe, upon the case as laid before the court, that the evidence in reality
exists and is material to the matter in controversy; if the other party admits
the possession of the books or documents alleged to contain it; if he also
impliedly admits the probability of its existence by not denying it, and no
great practical inconvenience will follow from allo'wing the other party to
inspect it, the privilege ought to be granted. (Lefferts v. Brampton, 24 How.
Prac. 257 [N". Y. Com. PI. Gen..T. [1862].)
Existence of cause of action, not determined on affidavits.] Books and
papers may be examined where a prima facie case is made out. The existence
of a cause of action cannot be determined upon affidavits. (Frowein v. Lind-
heim, 35 St. Rep. 604 [Sup. Ct. 1890]; appeal dismissed without opinion, 126
N. Y. 654.)
Defect in moving papers supplied by the answering affidavits.] A defect
in the moving papers, on an application for the inspection of the defendant
Eiile 14] Geneeal Eules op Practice. 113
company's books, in that they did not show that any right or interest of
plaintiff has been injuriously affected, held to be supplied by the answering
affidavits. (Fitchett y. Murphy, 30 App. Div. 304 [1898].)
Facts requiring the granting of an order.] Thomas J. Learey, the hus-
band of one Jessie Learey, bought certain premises which were, at the time,
subject to mortgages thereon held by a bank. These mortgages were assigned
by the bank to one Howe, who, upon the next day, began an action for their
foreclosure. Upon an application made in such action by Jessie Learey to
examine, before answer, the plaintiff and her husband, her affidavit alleged that
she was on bad terms with her husband; tliat he treated her cruelly and had
endeavored to get her to stgn a mortgage which would have cut off her right
of do\^ier; that the plaintiff was a friend of her hus,baud; that the husband's
money had paid for the said assignments, and that the plaintiff and her hus-
band Avere conspiring to assert the validity of said mortgages, which in equity
were satisfied, and thus cut off her inchoate right of dower. Held, that the
orders to examine the plaintiff and the husband were properly granted. (Howe
V. Learey, 62 Hun, 240 [1892].)
Material evidence in documents in possession of adversary.] Where
there is reason to believe that evidence material to the matter in controversy
exists in documents admitted by the other party to be in his possession, and
no great practical inconvenience will follow frf/m allowing the aipplicant to
inspect them, a discovery will be allowed. (Lefferts v. Brampton, 24 How.
frae. 257 [Gen. T. 1862]; Union Paper Collar Co. v. Metropolitan Collar Co.,
3 Daly, 171 [Sp. T. 1869]; Case v. BanU, 9 Bosw. 595 [Gen. T. 1862]; Euberry
V. Benus, 5 Bosw. 685 [1800].)
When it may be had in cases not provided for in rule.] A discovery
may be had in other cases than those provided for in the rules. (Gould v.
MoCarty, U N. Y. 575 [18.54]; Davis v. Dunham, 13 How. Prac. ^5 [Gen. T.
1855]; Exchange Bank v. Monteath, 4 id. 280 [Sp. T. 1849]. See, however,
Code of Civil Procedure, § 804.)
Libelous paper.] Inspection of alleged libelous paper will not be per-
mitted, in order to frame complaint for libel, when answers of defendant might
subject him to criminal prosecution- (Kiddle v. Blackbume, 125 App. Div.
893.)
Section 804 of the 'Code does not give authority for the adoption of a
rule compelling the production and inspection of other articles than books,
documents and other papers. (Pina Maya-Sisal Co. v. Squire Mfg. Co., 55
Misc. Rep. 325.)
Right not affected by the fact that the plaintiff, an employee of the
corporation he was suing for amount of percentage alleged to be due him,
had become a business competitor of his former employee. Thomas v. Guy
B. Waite Co., 113 App. Div. 494.)
FORM OF ORDER — Direction to deposit a paper for thirty days, or that
all defenses be precluded, and that the party be punished for contempt, is
erroneous.] It is erroneous to direct defendants to deposit a paper with the
clerk for thirty days, and in default thereof that they may be precluded from
8
114 CouETs OF Ks;coED. [Eule 14r
all defense in the action, and be adjudged guilty of a contempt and be liable to
be punished therefor. (Pindar v. Seaman, 33 Barb. 140 [Gen. T. I860].)
When an order is improper as being too general.] An order directing
the deposit of certain papers and all other books which contain any accounts
or entries showing or tending to show certain matters is improper and unwar-
ranted, it being an attempt to use the power of the court for the mere purpose
of hunting for evidence. (Walker v. Granite Bank, 19 Abb. Ill [Gen. T.
1865].)
When an order is improper as being too limited. (Gould Roofing Co.
V. Gilldea, 4 App. Div. 107 [1896].)
Books particularized in the order.] Too great generality in an applica-
tion for inspection of books is cured by particularizing the books in the order.
(Hofmar v. Seixas, 12 Misc. Rep. 3 [N. Y. Com. PI. Gen. T. 1895].)
Order made by the court and not by a judge.] It is not a valid objec-
tion to an order adjudging the witness to be guilty of contempt in refusing to
produce books before a referee that the order was made by the court and not
by a judge, where it appears that the order was not issued eai parte, but after
a hearing of which the witness had notice and after which he was given an
opportunity to comply with the direction of the court. (Press Publishing Co.
v. Associated Press, 41 App. Div. 493 [1899].)
Where inspection is not limited to the particular entry set forth in the
moving papers. (York & Haven Paper Co. v. Place, 13 App. Div. 227 [1897].)
Expense of copies, by whom paid.] The expense of copies should be paid
by the party requiring them. (Brevoort v. Warner, 8 How. Prae. 421 [Chamb.
1853].)
Proper order in such a case.] What is the proper order in such a case.
(Pindar v. Seaman, 33 Barb. 140 [Gen. T. I860].)
Order to produce a deed at a photographer's for the purpose of having
it photographed is error; the order should direct that the deed be deposited
with county clerk, with permission to photograph it. (Beck v. Bohm, 95
App. Div. 273.)
Form of order.] In a case where a party shows that he is entitled to
a discovery of his adversary's books, it is error to issue an order for a sworn
statement and balance sheet therefrom only, against objection. (Pfaelzer v.
Gassner, 54 Misc. Rep. 579.)
Inspection of picture not permitted.] Court is without authority to
require defendant to permit inspection of picture by experts for the purpose
of determining its genuineness, in an action to recover damages for alleged
fraud in the sale. (Wilson v. Collins, 57 Misc. Rep. 363.)
SERVICE OF ORDER — Order of discovery to be served on the attorney,
and not the party.] When an order is made for the discovery of books and
papers, it is properly served on the attorney for the party against whom the
discovery is sought, and need not be ser\ed on the party. (Rossner v. New
York Museum Association, 9 N. Y. Wkly. Dig. 563 [Gen. T. February, 1880].)
SHERIFF — Not directed to break open a safe, but party ordered to open it.]
In an action in which an ex parte order was made which allowed plaintiff to
examine defendant's books of account, and to be taken possession of by a
Eule 14] Geneeal Rules of Peactice. 115
sheriff under an attachment, it appeared that the sheriff did not know the
combination of the safe in which such books were locked, and it was held that
the direction in the order allowing sheriff to take possession of the books
should be stricken therefrom, the intention of the court not being to direct the
sheriff to break open the safe, but that an order might be obtained by the
plaintiff' which would direct the sheriff to allow the plaintiff, in order to ascer-
tain upon what property an attachment could be levied, to examine any books
in the sheriff's possession or which might come into his possession under the
attachment. (lii-ooks v. L. & C. Wise Co., 31 Abb. N. C. 46 [Sup. Ct. 1893].)
PARTIES — The representatives of a party can have no greater rights than
the deceased had.] The mere death of a party can give his representative no
superior right, m respect to a discovery of books and papers, to that which he
would have had if living. (Merguelle v. Note Co., 7 Rob. 77 [Sp. T. 1868].)
A discovery from an administrator of the papers of his intestate —
when allowed.] And the court will act with great caution when the suit is
brought by administrators and a discovery of papers of their intestate is sought.
(Jackling v. Edmonds, 3 E. D. Smith, 539 [Gen. T. 1854].)
^— To what accounts, rendered by her deceased, an administratrix is
entitled.] A plaintiff' suing as administratrix is, however, it seems, entitled
to copies of any accounts rendered by her intestate as agent, and to sworn
copies of any entries made by the defendants in their books to his credit.
Other papers must be obtained by subpoena duces tecum. (Merguelle v. Note
Co., 7 Rob. 77 [Sp. T. 1868].)
A guardian ad litem may petition for discovery.] Where a motion has
not been made by an executor, in a suit brought by him for an accounting in
partnership transactions, to compel the defendants sought to be charged to pro-
duce their books and papers, the guardian ad litem for testator's children, who
have joined as defendants, may petition the court for such discovery. (Apple-
bee V. Duke, 50 St. Rep. 92 (Sup. Ct. 1893].)
CORPORATION — Books of — since remedy by subpoena under Code of
Civil Procedure, inspection not allowed.] Under the Code of Remedial Justice
(Code of Civil Procedure), an inspection of the books and papers of a corpora-
tion will not be allowed before trial, as the corporation may be compelled to
produce them on the trial. (Central Crosstown Railroad Company v. Twenty-
third Street Railroad Company, 4 N. Y. Wkly. Dig. 324 [N. Y. Supr. Ct.
1877].)
— — Agents of corporation will not be compelled to discover its books.] The
agents of a corporation cannot, in their individual capacities, be compelled to
discover the books of the corporation; and on a motion to require them to do
so, the court will not enter into the question whether the incorporation is ficti-
tious. (Opdyke v. Marble, 18 Abb. 266 [Sp. T. 1864]. See Code of Civil
Procedure, § 868.)
Corporate books — directors.] A director of a corporation cannot be
required to produce for inspection the books of the corporation under section
803 of the Code of Civil Procedure. (Boorman v. Atlantic & Pacific R. R. Co.,
78 N. Y. 599 [1879]. See Code of Civil Procedure, § 872, subd. 7.)
116 CouETs OF Eecord. [Rule 14
Examination of ofScers and agents of a corporation — distinction.]
Under section 872 of tie Code of Civil Procedure, as amended by chapter 536
of 1S80, the oiRcers and directors, but not the servants or agents, of a corpora-
tion can be examined. (Eeiehmann v. Manhattan Company, 26 Hun, 433
[1&8I2].)
Examination of the president of a joint-stock association before trial.}
Right to examine the president of a joint-stock association in an action brought
against the association in his name aa president. (Wayne County Savings
Bank v. Brackett, 31 Hun, 434 [1884].)
Production of corporate books and papers required.] In an action
against a corporation and its officers, production of the corporate books and
papers may be required for the purpose of enabling plaintiflF to frame his com-
plaint. (Frothingham v. Broadway Railroad Co., 9 Civ. Proc. R. 304 [Sup. Ct.
Sp. T. 1886.].)
Corporate books and papers — how far subject to inspection.] To
■what extent a corporation may be required to submit its books and documents
to inspection. (Johnson v. Mining Company, 2 A'bb. [N. S.] 413 [Sp. T.
1867].)
Transfer books of corporation — i Edm. Stat. 558.] The court has
power to compel, by mandamus, the exhibition of the transfer books of a
domestic corporation, containing the names of the stockholders, at any time
when the exercise of such power is shown to be necessary to preserve and
protect the interests of the stockholders therein. (Matter of Steinway, 150
N. Y. 250 [1899]; People ex rel. Hatch v. L. S. & M. S. R. R. Co., 11 Hun, 1
[Gen. T. 1877]; Matter of Sage, 70 N. Y. 220 [1877]. See Code of Civil Pro-
cedure, § 868.)
Demand on corporation for a copy of records and papers not a condition
precedent to plaintiff's right to an examination of the defendant before trial.
<Jacobs V. Mexican Sugar Ref. Co., 112 App. Div. 655.)
FOREIGN CORPORATION — Order for the inspection of its books — what it
should require.] An order for the inspection of the books and papers of a
foreign corporation should not require it to produce the books kept in constant
use in its office in a distant State before a referee in this State, but should
direct it to produce and deliver to the plaintiff sworn copies of so much of
their contents as relates to the subject-matter mentioned in the order, within
a reasonable time, to be designated by the order. (Ervin v. Oregon R. & N.
Co., 22 Hun, 566 [1880].)
Transfer agents of — chapter 165 of 1842 — application of, to] (Matter
of Sage, 70 N. Y. 220 [1877].)
Sworn copies of books of a foreign corporation.] An order may be
granted allowing the examination of books of a foreign corporation, but sworn
copies will be sufficient if the originals are in a distant State and constantly
in use. (Sims v. Bonner, 42 St. Rep. 14 [N. Y. Supr. Ct. 1891].)
PARTNERSHIP BOOKS — An absolute right to inspection of partnership
books.] It is a matter of right to compel a, party to make a disclosure of
partnership books. (Kelly v. Eckford, 5 Paige, 548 [1836].)
Administrator of a deceased partner is entitled to an inspection of
partnership books and papers.] An administrator of a deceased partner is
Rule 14] Gejteeal Eules of Peactice. 117
entitled to a discovery and inspection of partnership books, and papers for the
purpose of frajning a complaint for an accounting, notwithstanding the provi-
sion in the copartnership articles that the survivor should carry on the busi-
ness until the expiration of the time limited for the existence of the partner-
ship. (Newman v. Newman, 20 Wkly. Dig. 283 [Sup. Ct. 1884].)
When a partner is not entitled to a general inspection of the books.]
In an action to set aside a sale of partnership assets by one partner to the
other, and to have the plaintiff's rights as a partner declared to be still sub-
sisting, the plaintiff is not, before judgment, entitled as a partner to a general
inspection of the books of the firm. (Piatt v. Piatt, 11 Abb. [N. S.] 110
[Gen. T. 1870].)
Inspection of books by one sharing in the profits.] Where a person
has a direct interest in the profits and losses of the business, whether such
relation constitutes htm a partner or principal bringing business to the firm,
or an employee entitled to a share of the profits, or a co-worker with a part-
nership in the general business, a prima facie case is presented, entitling him
to an inspection and discovery of the books, unless it appears that the appli-
cation is made in bad faith. (Lord v. Speilman, 13 Misc. Rep. 48 [1895].)
Examination by an expert.] The mere fact that the party has an
opportunity to examine the books does not -prohibit him from his right to
an inspection and examination by an expert to enable him to prepare for trial.
(76.)
Remedy by subpffina duces tecum does not forbid.] Nor is the fact
that the books can be produced on the trial by a subposna duces tecum a reason
why an order for discovery should not be granted. (7&.)
Of firm account books — when allowed.] The plaintiff's testator,
shortly before his death, and while in feeble health, had a settlement of his
partnership affairs with the defendant. Subsequently he told plaintiff that
one important credit, at the least, had been omitted. After his death plaintiff
applied to defendant for but was denied permission to examine the books.
Subsequently she applied for a discovery of the books, in order to enable her
to frame her complaint in this action, brought to correct the accounts. Held,
that the application should be granted. (Piatt v. Piatt, II Abb. Prac. [N. S.]
110; reversed, Livingston v. Curtis, 12 Hun, 121 [1877].)
Partner's application to inspect books.] A partner has the right,
notwithstanding the dissolution of the partnership, to examine' the books of the
firm at any reasonable time and place. (Beams v. Burras,, 86 Hun, 258 [1895].)
Books of record of a common venture.] Upon application, the books
of record of a common venture may be examined by a plaintiff who has, in any
way, an interest in the proceeds of such business, unless it is apparent that
the application has not been made in good faith. (Vieller v. Oppenheim, 75
Hun, 21 [1894].)
Inspection of firm books.] When an inspection of the books and papers
of a firm will be allowed in an action against one of the partners. (Martine v.
Albro, 26 Hun, 560 [1882]. See, also, Cohen v. Hessel, 95 App. Div. 548.)
AGENCY — A principal entitled to an inspection of his broker's books.]
In an action by a principal against his brokers for an accounting, held, that the
118 CoxjETs OF Kecoed. [Kule 14-
books of the latter being kept in the course of the agency, the principal was
entitled, whenever occasion required, to consult them, and as they contained
the only reliable evidence of the transactions in suit an order for their inspec-
tion was proper. (Duflf v. Hutchinson, 19 Wkly. Dig. 20 [Sup. Ct. 1884].)
Inspection of books to establish an agency.] In an action to recover
money alleged to have been realized from certain transactions, the defendant
should be allowed to inspect all books and papers in relation to an agency
which existed between the plaintiff's intestate, as agent, and defendant, on the
allegation of which agency a counterclaim is based. (Harding v. Reld, 4S
N. Y. St. Rep. 628 [Sup. Ct. 1893].)
CONVERSION — AUowed to establish a conversion.] In an action brought
by the executors of a deceased person to recover damages resulting from the
alleged conversion of securities purchased by the defendants as the agents of
the testatrix and intrusted to their possession, an order was obtained for the
examination of the books of account kept in the business of the defendants
during the term of their agency. Held, that in order to present the rights of
the estate in the premises the executors were entitled to obtain information
from the books in question; that the order should, however, be restricted to
such books as contained entries relating to the agents' dealings with the tes-
tatrix and the disposition made of the securities received by them from any
source for her. (Allen v. Allen, 33 N. Y. St. Rep. 876 [Sup. Ct. 1890]. Appeal
dismissed, see 125 N. Y. 724.)
PENALTY — For a refusal to obey the order, should not be contained in it.]
Where an order requiring a discovery is granted by a judge instead of by the
court, it should not declare the penalty for an omission to comply with the
order. The 16th (20th) Rule is, in this respect, invalid. (Broderiek v. Shelton,
18 Abb. 213 [Gen. T. 1864]; Rice v. Ehele, 55 N. Y. 518 [1874].)
DISOBEDIENCE — Recital of the penalty for.] The insertion in the order of
a statement of the consequences of not obeying it, although not authorized by
the statute, does not vitiate the order. (Rice v. Ehele, 65 Barb. 185 [Gen. T.
1873]; S. C, 55 N. Y. 518; Beckwith v. N. Y. C. R. E., 64 id. 299 [Gen. T.
1865]; Winston v. English, 14 Abb. Prac. [jST. S.] 119 [Gen. T. 1873]; S. C,
44 How. Prac. 398; Morgan v. Whittaker, 14 Abb. Prac. [N. S.] 127 [Gen. T.
1873].)
How punished.] The refusal of a witness to obey the order of a referee
to produce certain books upon an examination before him is not punishable by
the imposition of a fine, but the action of the court in such case is governed
by section 856 of the Code. (Press Publishing Co. v. Associated Press, 41
App. Div. 493 [1899].)
Applies to a contumacious refusal only.] Section 808 applies only to a
contumacious refusal to comply with order for discovery and inspection, and
not to a case where party has produced the documents and their genuineness
is attacked. (Banes v. Rainey, 130 App. Div. 465].)
NOTICE — Must be given.] In so far as the former rule authorized the
granting of a rule absolute without notice, giving effect to an order imposing,
as a penalty for noncompliance with it, the striking out of defendant's answer,
it is unauthorized and void. Nor was it validated by the provision of chapter
Eule 15] Genebal Eules of Peactioe. 119
408, Laws of 1870, legalizing certain rules of the court. (Rice v. Ehele, 55
N. Y. 518 [1874], reversing S. C, 65 Barb. 185.)
APPEAL — The order affects a substantial right.] An order for the dia-
covery of boolcB and papers is one affecting a substantial right and is appeal-
able. (Thompson v. Erie R. R. Co., 9 Abb. [X. S.] 212 [Gen. T. 1870]; Same
V. Same, Id. 230; Julio v. Ingalls, 17 Abb. 448, n. [Gen. T. 1863]; Woods v.
De Figaniere, 1 Rob. 681 [Gen. T. 1803]; S. C, 25 How. Prae. 522.)
Not reviewable in the Court of Appeals.] Whether or not a subpmna
duces tecum shall be set aside and whether a defendant shall be granted per-
mission to inspect and copy plaintiff's books rests in the discretion of the court
bslow and is not reviewable in the Court of Appeals. (Clyde v. Rogers, 87
N. Y. 625 [1881]; Finlay v. Chapman, 119 id. 404 [1890].)
When an order denying an attachment against a party refusing to make
a discovery as ordered is not appealable. (Ackroyd v. Ackroyd, 2 Al)b. [N. S.]
380.)
Oppressive order — remedy.] If the order for discovery is oppressive
the remedy is by motion, and not by appeal. (Matter of Kelly, 11 N. Y.
Wkly. Dig. 308 [Gen. T. 1880].)
When an order for discovery will not be reversed on appeal.] While
the General Term has power to review the exercise by the Special Term of its
discretionary powers on an application for a discovery of books and papers
under the Code of Civil Procedure (chap. 8, tit. 6, art. 4, § 803 et seq.), it
will not reverse the action of the Special Term unless it quite clearly appears
that upon the merits of the motion the Special Term has erroneously exercised
its discretion. (Hart v. Ogdensburgh & L. C. R. R. Co., 69 Hun, 497 [1893].)
Order refusing a discovery of partnership books reversed. (Livingston
V. Curtis, 12 Hun, 121 [1877].)
Physical examination of plaintiff in action for personal injuries.]
A mere physical examination, distinct and apart from any other examination,
is not allowed. (Lyon v. M. R. Co., 142 N. Y. 303.)
(See, also, Snyder v. DeForest Wireless Tel. Co., 113 App. Div. 840; Wood
V. J. L. Mott Iron Works, 114 id. 108; Memphis Trotting Assn. v. Smathers,
114 id. 376; Caldwell v. Mutual Reserve Life Ins. Co., 114 id. 377; Ferguson v.
Bien, 49 Misc. Rep. 50; Hirschfield v. I. Rosenthal & Co., 99 N. Y. Supp. 912;
Brewster v. Brewster, 127 App. Div. 729; Iroquois Hotel, etc., Co. v. Iroquois
Realty Co., 126 id. 814.)
RULE 15.
Foria of Application for Discovery of Books.
The moving papers upon the application for such discovery or
inspection shall state the facts and circumstances on which the
same is claimed, and shall be verified by affidavit stating that the
books, papers, articles, property and documents v^hereof discovery
or inspection is sought are not in the possession nor under the con-
trol of the party applying therefor, but are in the possession or
under the control of the party against whom discovery is sought or
120 CouETs OF Record. [Kule 16
his agent or attorney. The party applying shall show to the sat-
isfaction of the court or judge the materiality and necessity of the
discovery or inspection sought, the particular information which
he requires, and in the case of books and papers, that there are
entries therein as to the matter of which he seeks a discovery or
inspection.
Rule 20 of 1858, amended. Rule 19 of 1871. Jlule 19 of 1871, amended.
Rule 15 of 1877. Rule 15 of 1880. Rule 15 of 1884. Rule 15 of 1888,
amended. Rule 15 of ISlXi.
See notes to Rule 14.
RULE 16.
Older, What to Contain — Order for Discovery to Operate as a Stay of
Proceedings.
The order for granting the application shall specify the mode in
which the discovery or inspection is to be made, which may be
either by requiring the party to deliver sworn copies of the matters
to be discovered, or to allow an inspection with copy, or by requir-
ing him to produce and deposit the same with the clerk, unless
otherwise directed in the order. The order shall also specify the
time within which the discovery or inspection is to be made, and
when papers, articles or property are required to be deposited or
inspected the order shall specify the time the deposit or the oppor-
tunity for inspection shall continue.
The court or judge may direct that the order directing the dis-
covery or inspection shall operate as a stay of all other proceedings
in the cause, either in whole or in part, until such order shall have
been complied with or vacated.
The first paragraph is Rule 16 of 1858, amended. Rule 20 of 1871,
amended. Rule 20 of 1874, amended. Rule 16 of 1877. Rule 16 of 1880.
Rule 16 of 1884. Rule 16 of 1888, amended. Rule 16 of 1896, amended.
The second paragraph is Rule 17 of 1858, amended. Rule 22 of 1871.
Rule 22 of 1874, amended. Rule 17 of 1877. Rule 17 of 1880. Rule 17
of 1S84. Rule 17 of 1888, amended. Rule 17 of 1896 added to Rule 16
of 1896.
See notes, under Rule 14.
CODE OF CIVIL PROCEDURE.
§ 914. In what cases deposition may te tal^en.
§ 915. Subpoena to witness.
§ 919. Taking and return of deposition.
A witness cannot question sufficiency of proof upon which a subpcena is
issued, (flatter of Heller, 41 App. Div. 595.)
Kule 17] Geneeal Eules o:p Peactice. 121
EULE 17.
Application for a Subpoena to Compel the Attendance of a Witness to Obtain
Testimony under Depositions Taken within the State for Use without the
State, and Proceedings Thereon.
The petition prescribed by section 915 of the Code of Civil
Procedure must state generally the nature of the action or pro-
ceeding in which the testimony is sought to be taken, and that the
testimony of a witness is material to the issues presented in such
action or proceeding, and shall set forth the substance of or have
annexed thereto a copy of the commission, order, notice, consent
or other authority under which the deposition is taken. In case
of an application for a subpoena to compel the production of
books or papers, the petition shall specify the particular books or
papers the production of which is sought, and show that such
books or papers are in the possession of or under the control of
the witness and are material upon the issues presented in the
action or special proceeding in which the deposition of the witness
is sought to be taken. Unless the court or judge is satisfied that
the application is made in good faith to obtain testimony within
sections 914 and 915 of the Code of Civil Procedure, he shall
deny the application. Where the subpcena directs the production
of books or papers, it shall specify the particular books or papers
to be produced, and shall specify whether the witness is required
to deliver sworn copies of such books or papers to the commis-
sioner, or to produce the original thereof and deposit the same
with the commissioner. This subpoena must be served upon the
witness at least two days, or, in case of a subpoena requiring the
production of books or papers, at least five days before the day on
which the witness shall be commanded to appear. A party to an
action or proceeding in which a deposition is sought to be taken,
or a witness subpoenaed to attend and give his deposition, may
apply to the court to vacate or modify such subpoena.
Upon proof by affidavit that a person to whom a subpoena was
issued has failed or refused to obey such subpoena; to be duly
sworn or affirmed; to testify or answer a question or questions
propounded to him; to produce a book or paper which he has
been subpoenaed to produce ; or to subscribe to his deposition when
correctly taken down, a justice of the Supreme Court or a county
12i2 CouETs OF Eecoed. [Kule 17
judge shall grant an order requiring such person to show cause
before the Supreme Court, at a time and place specified, why he
should not appear ; be sworn or affirmed ; testify ; answer a ques-
tion or questions propounded; produce a book or paper; or sub-
scribe to his deposition, as the case may be. Such affidavit shall
also set forth the nature of the action or special proceeding in
which the testimony is sought to be taken and a copy of the plead-
ings or other papers defining the issues in such action or special
proceeding, or the fact to be proved therein. Upon the return of
such order to show cause, the Supreme Court shall upon such affi-
davit and upon the original petition, and upon such other facts as
shall appear, determine whether such person should be required
to appear; he sworn or affirmed; testify; answer the question
or qiiestions propounded ; produce the book or paper ; or subscribe
to his deposition, as the case may be, and may prescribe such
terms and conditions as shall seem proper. Upon proof of a fail-
wre or refusal on the part of any person to comply with any order
of the court made upon such determination, the court or judge
shall make an order requiring such person to show cause before it
or him at a time and place therein specified, why such person
should not be punished for the offense as for a contempt. Upon
the return of the order to show cause the questions which arise
must be determined as upon a motion. If such failure or refusal
is established to the satisfaction of the court or judge before whom
the order to show cause is made returnable, the court or judge
shall enforce the order and prescribe the punishment as in the
case of a recalcitrant witness in the Supreme Court.
CODE OF CIVIL PROCEDURE.
§ 775. Stay of proceedings, except on notice, when not io exceed twenty
§ 805. The order to show cause in proceedings for a discovery may contain
a stay of proceedings.
See Matter of Searles, 155 N. Y. 333 (1888) ; People ex rel. MacDonald v.
Leubischer, 34 App. Div. 577 (1898).
Subpoena issued under section 915, Code of Civil Procedure.] Witness
cannot question sufficiency of proof upon which subpoena issued. (Matter of
Heller, 41 App. Div. 595. See, also. Matter of Dittman, 65 id. 343.)
Eule 18] Geneeal Rules of Peactice. 123
Section 775 not applicable to stay for purpose of motion for reargument.
(F. B. N. Co. V. Mackey, 158 N. Y. 683; Condon v. Ch. of St. Augustine, 14
Misc. Eep. 181.)
When books and papers are to be used as an incident to the oral tes-
timony of the witness, it is not necessary to proceed under sections 803-809.
(Matter of Thompson, 95 App. Div. 542.)
RTTLE 18.
Service of Summons by a Person Other than the Sheriff — AfiBdavit of, What
to Contain in Divorce Cases.
Where personal service of the summons and of the complaint, or
notice, if any, accompany the same, shall be made by any other
person than the sheriff, it shall be necessary for such person to
state in his affidavit of service his age, or that he is more than
twenty-one years of age ; when, and at what particular place, and
in what manner he served the same, and that he knew the person
served to be the person mentioned and described in the summons
as defendant therein, and also to state in his affidavit that he left
with defendant such copy, as well as delivered it to him. No
such service shall be made by any person who is less than eighteen
vears of age.
In actions for divorce, or to annul a marriage, or for separate
maintenance, the affidavit, in addition to the above requirements,
shall state what knowledge the affiant had of the person served
being the defendant and proper person to be served, and how he
acquired such knowledge. The court may require the affiant to
appear in court and be examined in respect thereto, and when
service has been made by the sheriff, the court must require the
officer who made the service to appear and be examined in like
manner, unless there shall be presented with the certificate of
service the affidavit of such officer, that he knew the person served
to be the same person named as defendant in the summons, and
shall also state the source of his knowledge.
Rule 18 of 1858, amended. Rule 23 of 1871, amended. Rule 32 of 1874,
amended. Rule 24 of 1871, amended. Rule 24 of 1874, amended. Rule 18
of 1877. Rule 18 of 1880. Rule 18 of 1884. Rule 18 of 1888, amended.
Rule 18 of 1896.
124 CouETs OF Eecoed. [Rule 18
CODE OF CIVIL PROCEDURE.
§' 398. An action is commenced when summons is served.
§ 399. An attempt to commence an action in a court of record is equivalent
to the commencement thereof, with reference to the Statute of
Limitations.
§ 400. The delivery of a summons to the proper officer is a commencement
— for the like purpose in a court not of record.
§ 416. An action is commenced by a summons — jurisdiction acquired con-
ditiona,lIy from granting of rproviS'ional remedy.
§ 417. The requisites of summons.
§ 418. The form of summons.
§ 419. Service of a copy complaint or notice with summons — otherwise
judgment by default cannot be taken without application to the
court.
§ 424. A voluntary general appearance is equivalent to personal service.
§ 425. Service of summons — when and by whom made.
§ 426. Personal service of summons — how made upon a natural person.
§? 427, 428. Service in cases of infancy, lunacy, habitual drunkenness, etc.
§ 429. When delivery of a copy to a lunatic dispensed with.
§ 430. Designation by resident of person upon whom service may be made
•for him during absence.
§ 431. Personal service — how made on domestic corporation.
§ 432. Personal service — how made on foreign corporation.
§ 433. Provisions as to service apply to special proce&dings.
§ 434. Proof of service of summons — how made.
§§ 435, 436. Service — how made — when defendant avoids service.
§ 437. Papers to be filed ■ — ■ proof of service.
§ 438 et seq. Service by publication — may be ordered — when.
§ 451. When defendant or his name is unknown — how designated.
§ 453. Supplemental summons — to issue to parties brought in — its service.
§ 473. Service — on guardian ad litem for absent infant.
■§ 638. Service — after issuing warrant of attachment.
§ 760. Supplemental summons — may issue on bringing in successor of
deceased party.
'§' 902. The general rules as to the service of papers do not apply to.
§ 824. Tlie summons to be filed within ten days after service.
§ 1541. WWat notice must be subjoined to a copy summons, when an unknown
party is made a defendant in an action for partition.
§ 1588. Supplemental summons — to bring in a new defendant — after the
death of a party in an action for partition.
§ 1594. In actions for partition — where the people are a party — service
to be made on Attorney-General.
§ 1657. To bring in new parties in an action for wuste, where judgment of
partition is granted.
§ 1670. Service must be made within sixty days after filing Us pendens.
Eule 18] Geneeal Eules of Practice.
125
§ 1774. Requisites of summons — for judgment by default in matrimonial
actions.
§ 1895. Service, filing, etc., in action for penalty.
§§ 1897, 1964. Indorsement upon in an action for a statutory penalty.
§ 1929. Summons in certain cases to contain a designation of the officer by,
or against whom suit is brought.
§ 2876 et seq. Summons — contents and service of, in courts of justices of
the peace.
§ 3126. Co:py of complaint may be served with summons, in Justice's Court
in Brooklyn.
§ 3165. Summons — in New York Marine Court (now City Court of New
York).
■§ 3170. Service of summons in New York Marine Court (now City Court of
New York) -without the city or by publication.
§ 3205. In City Court of Yonkers.
§ 3207. Summons, served with copy complaint, in New York District Courts,
and Justices' Courts of Albany (now City Court of Albany) and
Troy.
§ 3208. Proof of service in such courts.
§ 3209. Action in such courts must be commenced by summons.
§ 3218. Returnable immediately in New York District Courts — where order
of arrest is made.
PROOF OF SERVICE — Sheriff 's certificate of service, out of his county.]
The certificate of a sheriff out of the State, and of any sheriff out of his own
county, is not sufficient proof of service; his affidavit should be presented.
(Morrell v. Kimball, 4 Abb. 352 [Sp. T. 1857]. See Farmers' Loan &, Trust
Co. V. Dickson, 9 id. 61 [Sp. T. 1859].)
When a sheriff's certificate is insufficient evidence of service.] The
service of a summons to be used as evidence against defendants who have not
appeared, is defective where the sheriff's certificate is produced, which states
"that he served on them a copy of a summons and complaint," without men-
tioning any cause in which it was served. (Litchfield v. Burwell, 5 How. Prac.
342 [Sp. T. 1850].)
Return of sheriff — conclusive, though service was made by one not a
deputy.] A summons and complaint and order of arrest were delivered to
the sheriff, and he verbally deputed a person, not his deputy, to serve them,
who did so, and the sheriff made a return that he (the sheriff) had served
them and had taken an undertaking for the defendant's appearance; the
return is conclusive in that suit. (The Col. Ins. Co. v. Force, 8 How. Prac.
353 [Gen. T. 1853].)
Clerical error in sheriff's certificate — disregarded.] A mere clerical
error in defendant's name in a sheriff's certificate may be disregarded. The
use of the words " said defendant," on the certificate, will support the con-
clusion that the real defendants were intended. (Miller v. Brenham, 68 N. Y.
33 [1877].)
12i6 CouETS OF Eecoed, [Eule 18
Positive affidavit of service — when it prevails over defendant's denial.]
Where doubt is thrown upon a defendant's denial of the service of a summons
upon him, a positive affidavit on file of the service must prevail. (Moulton v.
de MaCarty, 6 Rob. 470 [Gen. T. 1866]; Button v. Smith, 23 App. Div. 188
[1897]. See, also. Smith v. Hiokey, 25 id. 105 [1898].)
Service presumptively established by the judgment record.] The cred-
itors of a firm filed a bill in equity in the Circuit Court of the United States
making the necessary persons parties, and including among them two children
of a deceased partner, aged respectively two and three years. On the same
day a subposna was issued, but there was no entry in the docket of the clerk
(which contained all other proper and necessary entries) of a return of the
subpoena, nor did the papers in the case on file in the clerk's ofiice contain the
subpoena or any return of its service. Held, that, assuming the service of
the subpoena to be jurisdictional, the fact of the service thereof was presump-
tively established by the judgment record. (Sloane v. Martin, 77 Hun, 249
[1894].)
Plaintiff — how concluded as to the date of service of a summons.]
Where the plaintiff files, with the papers composing the judgment-roll (as he
is required to do), the proof of service of the summons and complaint, he is
concluded by such proof as to the time when the action was commenced.
Burroughs v. Eeiger, 12 How. Prac. 171 [Sp. T. 1856].)
Defendant may controvert the certificate, or affidavit of service.] The
return of a sheriff, or an affidavit of a person acting in his place, of the
service of a summons, is not conclusive upon the defendant. He may be
allowed to disprove it on a motion to set the proceedings aside. (Van Rens-
selaer V. Chadwick, 7 How. Prac. 297 [N. Y. Supr. Ct. Gen. T. 1852].)
Omission to state affiant's age in affidavit of service, where affiant Is an
attorney-at-law.] An affidavit of service is not defective in omitting to state
the age of the affiant, where it states that he is the plaintiff's attorney, as the
court will take judicial notice of the fact that he is of full age. (Booth v.
Kingsland Ave. Bldg. Assn., 18 App. Div. 407 [1897].)
Judicial notice of attorney's age — irregularities not fatal.] The court
will take judicial cognizance of the fact that its attorneys are at least twenty-
one years of age.
An affidavit of service of a summons and complaint from which the resi-
dence and age of the affiant is entirely missing, but in which it was stated
that he was the plaintiff's attorney, and which was annexed to the summons
which contained his office and post-office address, is sufficient in its formal
character to resist a motion to cancel the summons and complaint and the
notice of lien and the lis pendens in an action to foreclose the mechanic's lien.
(Booth et al. v. Kingsland Ave. Bldg. Assn., 18 App. Div. 407 [1897].)
Must show that person serving knew defendant.] The affidavit of
service must show that the person making it had some personal knowledge
that the person served is the defendant in the action. (O'Connell v. Gallagher,
104 App. Div. 492.)
Affiant required to state facts from which the court may say that he knows
the person served to be the husband or the wife of the plaintiff. (Freeman v.
Freeman, 57 Misc. Rep. 400.)
Eule 18] General Eules cwf Peactice. 127
HOW MADE — A constable may serve a process in his own favor.] A plain-
tiff who is a constable, may serve a process in his own favor, issued by a
justice of the peace. (Putnam v. Man, 3 Wend. 202 [1829]; Smith v. Burliss,
23 Misc. Rep. 544 [1898].)
A sheriff may serve his own process.] It seems that a sheriff who ia
plaintiff may serve his own writ. (Bennett v. Fuller, 4 Johns. 486 [1809].)
In Justice's Court a plaintiff may not serve his own summons.] In a
Justice's Court, plaintiff cannot serve his own summons, though he have
written authority to do so from the justice. (Warring v. Keeler, 11 Misc.
Rep. 451 [1895].)
Service by a party is a mere irregularity.] The service of a summons
by a party is a mere irregularity. (Hunter v. Rester, 10 Abb. Prae. 260 [Sp.
T. I860].) How avoided. (Myers v. Overton, 2 Abb. Prac. 345 [N. Y. Com.
PI. Gen. T. 1855]; Sebring v. Stryker, 10 Misc. Rep. 289 [1894].)
In a special proceeding.] Service of papers by party in a special pro-
ceeding is a mere irregularity. (Losey v. Stanley, 83 Hun, 420 [1894].)
Plaintiff may prove an admission of service.] The fact that the plaintiff
is forbidden to serve the summons does not preclude him from proving an
admission of service. (White v. Bogart, 73 N. Y. 256 [1878].)
Service must be directly to the party.] A summons must be served
personally on the party. Where a summons was handed to the father, proof
that it afterwards came into the hands of the son, held, insufficient to sustain
a judgment against the son. (Williams v. Van Valkenburgh, 16 How. Prac.
144 [Gen. T. 1858]. See, also, O'Connell v. Gallagher, 104 App. Div. 492.)
Receiving back a summons makes the delivery insufScient.] Where the
defendant, upon being served with the summons and complaint, voluntarily
hands them back, it is the duty of the person making service to offer to leave
copies or to acquaint the defendant with his rights. (Beekman v. Cutler, 2
Code Rep. 51 [Sp. T. 1849].)
Service on a eorporation at common law.] At common law, a process
against a corporation must be served on its head or principal officer, within the
jurisdiction of the sovereignty where the artificial body exists. (Barnett v.
Chi. & L. H. R. R. Co., 4 Hun, 114 [1875].)
Service of a summons upon one with whom a lunatic resides is insuffi-
cient.] Service of a, summons upon one with whom a person of unsound mind
resides is not good service. It should be upon -the defendant himself, and if
he has a committee, also upon the committee. (Heller v. Heller, 6 How. Prac.
194 [Sp. T. 1851].)
— Service on a convict in State's prison is good.] Service of legal process
upon a convict in the State prison is regular and valid to confer jurisdiction.
The statute which " suspends all civil rights of the person " sentenced to the
State prison does not suspend the rights of others against him ; he may be
sued and the suit against him be prosecuted to judgment. (Davis T. Duffie, 3
Keyes, 606 [1867]; Slade v. Joseph, 5 Daly, 187 [1874].)
In action against a sheriff for an escape it may be served on the under
sheriff.] In an action commenced against a sheriff for an escape from the jail
limits the summons may be properly served on the under-sheriff, and the addi-
138 Couhts of Ekgoed. [Eule 18
tion of his official title to tlie name of the sherifif in sueh an action is only by
way of description, and is a superfluous addition. (Didabury v. Van Tassell,
56 Hun, 423 [1890].)
■Service in an action under chapter 185 of 1857.] The service of the
summons in an action brought under chapter 185- of the Laws of 1857 is not
governed by section 1895 of the Code of Civil Procedure. (Quade v. N. Y.,
N. H. & Hart. E. R. Co., 39 N. Y. St. Rep. 157 [N. Y. Supr. Ct. 1891].)
■ Placing the summons on defendant's shoulder, sufficient.] In an action
to set aside the service of the summons it was held that sufficient service had
been made by a person who laid the summons upon defendant's shoulder, said
defendant having previously refused to accept service thereof. (Martin v.
Eaffin, 2 Misc. Rep. 588 [N. Y. City Ct. 1S93].)
Throwing the paper near the defendant.] Where a defendant, with
intent to evade service of a paper, will not allow the server to enter his room,
•service may be made by throwing the paper near the defendant and calling his
attention to the same, and the application by plaintiff for an order for substi-
tuted service is not a conclusive election on his part that the service was in-
effectual. (Wright V. Bennett, 30 Abb. N. C. 65, note [Ct. App. 1889].)
As to what constitutes " leaving " process in the hands of the person
served.] (See Johnson v. Mutual L. Ins. Co., 104 App. Div. 550.)
Depositing papers in a chair, without delivery into defendant's hands,
not a good service. (Correll v. Granget, 12 Misc. Rep. 209 [1895].)
Service by violence bad — how made on a party who refuses to receive
the papers.] Where the service of process or papers upon a person is made by
violently thrusting them upon his person, the service will be held void,
although the person or officer making the service may have stated the nature
of the papers, and the person upon whom they were intended to be served
refused to receive them. In other words, a person or an officer has no right
to commit an assault and battery upon an individual in trying to serve the
papers upon him. Where a person upon whom, service of process is desired to
he made refuses to receive them, the person or officer making the service
should inform him of the nature of the papers and of his purpose to make
service of them, and lay them down at any appropriate place in his presence.
(Davidson v. Baker, 24 How. Prae. 39 [Sp. T. 1862].)
When made by a private person, who wrongfully enters the house of
the person served. (Mason v. Libby, 1 Abb. N. C. 354 [1876].)
Serving a summons concealed in an envelope — not good.] Putting the
defendant in the unknown possession of a summons disguised or enveloped,
so as to conceal from him the knowledge which it was the intent of the law
should be communicated, is not a good service, and the subsequent discovery by
the defendant, upon whom such an attempted service is made, of the contents
of the summon.3 is not to be deemed a good service, if the defendant is beyond
the limits of the State when he makes such discovery. (Bulkley v. Bulkley,
6 Abb. Prae. 307 [Sp. T. 1858].)
That a summons served otherwise than as required by statute reached
the party to be served does not render the service valid. (Eisenhofer v. N. Y.
Zeitung Pub. & Ptg. Co., 91 App. Div. 94.)
Eule 18] Geneeal Eules of Practice, 129
JURISDICTION — Court has no jurisdiction where a summons is. not legally
served.] When the summons in an action is not legally served the court has no
jurisdiction of the defendant, and in such case all proceedings based on pre-
tended service are void. (Bulkley v. Bulkley, 6 Abb. Prae. 307 [8p. T. 1858].)
Service of summons the only way of bringing a party into court against
his will.] There is no way of bringing a party Into court and within its juris-
diction against his will but by service of process. (Akin v. Albany Northern
R. R. Co., 14 How. Prac. 337 [Sp. T. 1856]. See Treadwell v. Lawlor, 15 id. 8
[Gen. T. 1875].)
Service of summons on holidays mentioned in chapter 30 of 1881.] The
provisions of chapter 30 of the Laws of 1881 do not prohibit the commenee-
ment of actions or the transaction of legal business upon the holidays men-
tioned in said act. (Mdsbury v. Van Tassell, 56 Hun, 423 [1890].
Service of a summons on an election day is void.] Service of summons,
with or without an order of arrest, on an election day, and all proceedings
under it, are void. (Weeks v. Noxon, 11 How. Prac. 189 [Sp. T. 1855].)
— — As to charter elections. (Stee Wheeler v. Bartlett, 1 Edw. Ch. 323
[1832]; Matter of Election Law, 7 Hill, 194 [1845].)
See notes on dies non juridicus, 29 Abb. N. C. 17&.
Admission of service by a party out of the State will not sustain pro-
ceedings in personam.] The admission of service of summons by parties defend-
ant residing out of the State is ineffectual as the basis of any judicial pro-
ceeding- in personam in this State. (Litchfield v. Burwell, 5 How. Prac. 342
[Sp. T. 1850}.
Personal service out of the State — eifect of.] Whether personal service
of a copy of the summons and complaint out of this State (under Code of
Civil Procedure, § 135 ) confers on the court any jurisdiction whatever in any
case, quare. (Morrell v. Kimball, 4 Abb. 352 [Sp. T. 1857].)
Joint debtors — one not within the jurisdiction of the court.] The juris-
diction of a local court cannot be extended to persons and subjects beyond its
territorial jurisdiction by the fact that one of several joint debtors sued is
served and resides within its jurisdictional limits. (Hoag v. Lamont, 60
N. Y. 96.)
ADMISSION — An admission of service signed by a party (not an attorney)
must be acknowledged or proved.] Service is defective where an admission
of service, purporting to be signed by some of the parties defendant, is pro-
duced without some evidence of their signatures being genuine, or that they
were written to the admission with their assent. The court takes judicial
notice of the signatures of its officers, but is not presumed to know the signa-
ture of a party defendant who has not appeared. (Litchfield v. Burwell, 5
How. Prac. 341 [Sp. T. 1850].)
APPEARANCE — Voluntary api>earance and appointment of a guardian for
an infant, good.] Jurisdiction over the person is as fully acquired by the
voluntary appearance of the defendant as by service of a summons. (Code of
Procedure, § 139.) WTien upon the petition of infants, over the age of four-
teen, a guardiun ad litem has been appointed in a partition suit, the order is
9
13Q Courts of Eecoed. [Eule 18
Valid although no summons had been previously served upon the infants.
(Varian v. Stevens, 2 Duer, 635 [Gen. T. 1853].)
What answer waives a defect of jurisdiction over the person.] A defend-
ant who voluntarily appears and answers, although the answer in terms
reserves the right to object to the jurisdiction of the court, is precluded
thereby from objecting that the court has not acquired jurisdiction of his
person. A voluntary appearance is equivalent to the personal service of the
summons. (Mahaney v. Penman, 4 Duer, 603 [Sp. T. 1854].)
Service of process upon a non-resident voluntarily submitting himself to
the jurisdiction of the court — when set aside.] Where a defendant has volun-
tarily submitted himself to the jurisdiction of the court, upon an agreement
which was not carried out, that there should be immediate trial without a
jury, held, that the service of the summons and an order of arrest upon him
were properly vacated and set aside. (Graves v. Graham, 19 Misc. Eep. 618
[1&97].)
What answer is not a waiver of a want of jurisdiction over the person.]
An appearance, by putting in an answer protesting against the exercise of
jurisdiction, is not such an appearance as waives the objection to the juris-
diction of the court. Nor is the mere subscription of an answer, with the
name of an attorney, such an appearance as to waive any objection to the
jurisdiction. (Sullivan v. Frazle, 4 Rob. 616 [N. Y. Supr. Ct. Gen. T. 1865].)
What is not a voluntary appearance.] Personal attendance, in compli-
ance with a subpoena duces tecum, cannot be deemed a voluntary appearance,
although another might have been sent with the books. (Sebring v. Stryker,
10 Misc. Rep. 289 [1894].)
See ante, notes under Rule 9.
IRREGULARITY — A summons cannot issue for an infant plaintiff until the
appointment of a guardian ad litem.] A guardian for an infant plaintiff must
be appointed before the issuing of a summons and complaint. (2 R. S. 446.)
The Code of Procedure has not abrogated the former practice. (Hill v.
Thatcher, 3 How. Prac. 407 [Sp. T. 1848].)
Otherwise the service of the summons will be irregular.] Where such
guardian was not appointed until the day- of service of the summons and com-
plaint, which were dated and sworn to one day previous, held, that the sum-
mons was irregular. (See 12 Wend. 191 [1834]; Hill v. Thatcher, 3 How.
Prac. 407 [Sp. T. 1848].)
Service by a party a mere irregularity.] Service of a summons by a
party is a mere irregularity, which cannot be taken advantage of after judg-
ment. (Hunter v. Rester, 10 Abb. Prac. 260 [Sp. T. I860].)
If the defendant is served by the plaintiff, he must take advantage of
the irregularity by motion.] Where a defendant is served with process by the
plaintiff personally, he must take advantage of the irregularity by moving to
set aside the proceedings before judgment, otherwise his motion will be too
late. (Myers v. Overton, 2 Abb. Prac. 345 [N. Y. Com. PI. Gen. T. 1855].)
Privilege of witness must be asserted at the first opportunity.] The
privilege of a witness in attendance upon the court to be relieved from serv-
ice of a summons must be asserted at the first opportunity, or it is waived;
Eule 18] General Eules of Practice. 131
and if not claimed at the trial, is not available for the first time on appeal.
(Sebring v. Stryker, 10 Misc. Rep. 289 [1894].)
Objection that a sheriff did not make service — when to be taken.] The
objection that a summons was not served by the sheriff, pursuant to sec-
tion 1895 of the Code of Civil Procedure, in an action brought under chap-
ter 185 of the Laws of 1857, must be taken before the service of the answer,
to be effectual. (Ahner v. N. Y., N. H. & Hart. R. R. Co., 39 St. Rep. 196
[N. Y. City Ct. 1891].)'
Suit not regularly commenced — the remedy is by motion.] If a suit
has not been regularly commenced, the defendant must relieve himself from
such irregularity by motion. (Nones v. The Hope Mut. Life Ins. Co., 8 Barb.
541 [Gen. T. 1850]; Wallis v. Lott, 15 How. Prac. 567.)
A pretended service, avoided by motion.] A pretended service of
process on a defendant may be disproved by affidavit upon motion. (Wallis
v. Lott, 15 How. Prac. 567.)
Objection to service of summons cannot be taken by answer or
demurrer.] The objection that a summons, as the commencement of a suit,
was not properly served, is not available in an answer or demurrer, but only
on motion to set the proceedings aside. (Nones v. The Hope Mut. Life Ina.
Co., 8 Barb. 541 [Gen. T. 1850].)
Irregular service cannot be set up in the pleadings.] The meaning of
the section of the Code of Procedure allowing it to be set up as a defense,
that " the court has no jurisdiction of the person," is, that the person is not
subject to the jurisdiction of the court; not that the suit has not been regu-
larly commenced. (Nones v. The Hope Mut. Life Ins. Co., 8 Barb. 541
[Gen. T. 1850].)
Where defendant has attempted to evade service, what evidence of non-
service will be required before the judgment will be vacated.] Where it
appears that a defendant has endeavored to avoid the service of a summons,
the court, on a motion to vacate the judgment for nonservioe of the sum-
mons, will require the defendant to furnish satisfactory evidence that he was
not served. (Southwell v. Maryatt, 1 Abb. Prac. 218 [Sp. T. 1855].)
Service set aside where the defendant was induced to come into the
State by a trick.] Where a defendant residing in Canada was inveigled into
this State by a trick, for the purpose of effecting the service of a summons
upon him, the service of the summons and all proceedings dependent thereon
were set aside and a warrant of attachment vacated. (Metcalf v. Clark, 41
Barb. 45 [Gen. T. 1864] ; to same effect, Benninghoff v. Oswell, 37 How. Prac.
234 [Sp. T. 1868] ; Carpenter v. Spooner, 2 Code R. 140; affirmed, 3 C. R.
20 [Gen. T. 1850] ; Goupel v. Simonson, 3 Abb. Pr. 474 [Sp. T. 1856] ; Baker
V. Wales, 14 Abb. Pr. [N. S.] 331 [1873].)
Service on one inveigled into the State set aside — order of arrest not.]
The service of a summons and order of arrest may be set aside where the
defendant has been inveigled into coming within the jurisdiction, for the pur-
pose of making such service, but the order of arrest need not be vacated in
consequence thereof. (Higgins v. Dewey, 27 Abb. N. C. 8 [N. Y. Com. PI.
1891], affirming 13 id. 570.)
132 OoTJETs OF Rbcoed. [Eule 18
Set aside when the defendant was induced to come into the State for
the purpose of procuring his arrest — action not dismissed.] Upon the appeal
from an order setting aside the service of a summons, complaint and order of
arrest in an action, and dismissing the action, with costs, and from the judg-
ment entered thereon, the papers showed that the defendant, a nonresident of
the State of New York, was enticed into tlie State for the purpose of procur-
ing his arrest, and serving the summons and complaint upon him. Held, that
such order properly vacated and set aside the service of the summons as well
as the service of the order of arrest; that it should not have dismissed the
action, with costs, when the summons was properly issued to the sheriff and
the order of arrest obtained upon sufficient papers and properly delivered to
the sheriff. (Beacon v. Rogers, 79 Hun, 220 [1894].)
What acts, inducing one to come within the jurisdiction of the court,
constitute deceit.] Service of process effected by the plaintiff, requesting a
debtor to come to his office for the purpose of settling a claim, but with the
undisclosed intent that, if he does not come to terms, he shall be served with
process, is effected with deceit, and will be set aside on motion. So held,
where the debtor was induced to come within the jurisdiction by such request.
(Baker v. Wales, 14 Abb. [N. S.] 331 [Gen. T. 1873].)
Witness invited to attend a settlement, protected.] Where it appears
that a defendant was invited to come within the State of New York to effect
the settlement of a suit, and that the party who extended the invitation
intended, if nfegotiations for a settlement failed, to commence an action against
such party, the service of a summons upon him will be considered a breach
of confidence and will be set aside. (Allen v. Wharton, 36 'St. Rep. 558
[Sup. Ct. 1891].)
The witness must have come into the State voluntarily.] In the absence
of evidence that a defendant came into the State voluntarily to stand trial
on a criminal charge, the service upon him of a summons in an action will
not be set aside. (Sander v. Harris, 37 St. Rep. 594 [Sup. Ct. 1891].)
It must appear where the witness came from.] A person claiming
exemption from civil process of the State of New York must have come from
without the jurisdiction of the courts of said State as a party to or witness
upon the occasion of the judicial proceeding which he is attending ; an affidavit
which does not state where the defendant came from is insufficient. (Day v.
Harris, 37 St. Rep. 322 [Sup. Ct. 1891].)
Service on a witness before a legislative committee, set aside.] Service
of the summons upon a defendant must be set aside where the defendant was
served when attending as a witness before a legislative investigating com-
mittee, and had come for such purpose from another State and intended to
return thereto, irrespective of whether or not his domicile was vriithin the
State of New York.
A motion to set aside such service may properly be made at any time before
the time to answer has expired. (Thorp v. Adams, 33 St. Rep. 797 [Sup.
a. 1890].)
Service on a nonresident witness claiming to be a citizen of New York.]
The service of a summons will be set aside where it appears that the defend-
Rule 18] Geneeal Rules of Peacticb. 133
ant had gone to Cuba thirty-seven years before, had remained in business
there and in other foreign States, but claimed still to be a citizen of the State
of New York, and had come to the State of New York as a witness in a suit,
intending to depart, as he did, after giving his testimony. (Hollender v. Hall,
33 St. Rep. 348 [Sup. Ct. 1800].)
Service on nonresident attending as a witness in this State is bad.]
Where a summons was served upon a resident of another State, wliile attend-
ing in this State, in good faith, as a witness, the service was set aside.
(Person v. Grier, 66 N. Y. 124 [1876].)
Attending trial at a Circuit out of his county.] A party attending an
action on trial at a Circuit in a county other than tliat in which he resides
is exempt from the service of a summons in a civil action in a Justice's
Court of such county. (People ex rel. Hess v. Inman, 74 Hun, 130' [1893].)
When made upon a witness in a cause in the United States court.
(Grafton v. Weeks, 7 Daly, 523 [1878].)
The court has inherent power to prevent service on its officers, etc.]
The court has power, independently of the statute, to protect its officers,
suitors and witnesses from molestation by means of process of the court.
(Lamldn v. Starkey, 7 Hun, 479, 479 [1876].) Effect of a general notice of
appearance in such a case. (Ghadwiek v. Chase, 5 Wkly. Dig. 589 [Sp. T.
1878].)
Where summons was subscribed with the name of the attorney, after
which appeared the words " New York city," it was held an irregularity merely.
(Sullivan v. Harney, 53 llisc. Rep. 549.)
LACHES — What laches precludes the defendant from moving to set aside
a judgment for nonservice.] The court will not set aside a judgment for
nonservice of the summons when it appears that, although the defendant had
notice of an attempt to effect service upon him, he delayed to move until sup-
plementary proceedings were instituted. (Hilton v. Thurston, 1 Abb. Prac. 318
[Sp. T. 1S55]. See, also, Sebring v. Stryker, 10 Misc. Rep. 289 [1894]; Ahner
V. N. Y., N. H. & Hart. R. R. Co., 38 N. Y. St. Rep. 196 [N. Y. City Ct. 1891] ;
Myers v. Overton, 2 Abb. Prac. 345 [N. 1'. Com. PI. Gen. T. 1855 J.)
SUBSTITUTED SERVICE — An order for substituted service is not an
order granting a provisional remedy.] An order for substituted service is not
an order granting a provisional remedy within the meaning of section 772 of
the Code of Civil Procedure. A judge who grants such an order has jurisdic-
tion to entertain a motion to vacate or modify it. (McCarthy v. McCarthy, 6
N. Y. Wkly. Dig. 272 [Gen. T. 1878].)
Act regarding substituted service applies to infants.] The provision
of the act for substituted service upon defendants evading service applies to
infants where then- parent refuses to permit the infants to be served. (Stein-
hardt v. Baker, 20 Misc. Rep. 470 [1897]; S. C, 25 App. Div. 197 [1898].
Order for substituted service.] The order for substituted service of the
summons should require the deposit of a copy in the post-office only in the
event of the inability to leave a copy with a person of suitable age at defend-
ant's residence. (Overton v. Barclay, 69 N. Y. St. Rep. 716 [1895].)
Sufficiency of an affidavit to obtain an order for substituted service,
134 CouETS OF Ebcoed. [Rule 18
under section 435 of Code of Civil Procediu'e, considered. (Nagle v. Taggart, 4
Abb. N. C. 144 [Sp. T. 1877]. See, also, Steinhardt v. Baker, 20 Misc. Eep.
470 [1879]; Evans v. Weinstein, 124 App. Div. 316; Simswick Land Co. t.
Hurdock, 129 id. 579.)
Fact that plaintiflF merely knew defendant was somewhere in Canada,
not sufficient to warrant vacation of order for substituted service under section
435 of the Code. (Hess v. Felt, 112 N. Y. Supp. 470.)
ON HUSBAND FOR WIFE — When service in foreclosure on a husband is
good service on his wife.] In the foreclosure of a mortgage made by a hus-
band and wife on the husband's land, to secure a husband's debt, service upon
the husband is good service on both him and his wife. (Xagle v. Taggart, 4
Abb. N. C. 144 [iSp. T. 1877]. See Lathrop v. Heacock, 4 Lans. 2 [Gen. T.
1871]; White v. Coulter, 1 Hun, 366 [1874]. See, also, Foote v. Lathrop, 53
Barb. 183 [Gen. T. 1869]; S. C, 41 N. Y. 358; Code of Civil Procedure, § 450.)
In foreclosure suits service on the husband when good service on the
wife.] Where, in an action to foreclose a mortgage, a summons, directed to
the wife, is served upon the husband, the mortgagor, it is his duty to appear
and answer jointly for himself and his wife. Service of the summons upon
the wife is only necessary when the proceedings are against her separate
estate. (Watson v. Cliurch, 3 Hun, 80 [1874].)
Service of subpoena in 1838 upon a husband to give to his infant wife
constituted good service upon the wife.] Plaintiff, in 1836, joined with her
husband in a mortgage upon his land. In 1838 they were both made parties to
a suit for the foreclosure of the mortgage. No copy of the \^Tit of subpceua
was servfed upon her; one was served upon the husband, and one delivered to
him with the request to hand it to her; she was at the time under age. A
judgment of foreclosure and sale was entered, under which the premises were
sold. The husband died in 1882. In an action to recover dower.
Held, that under the rule and practice in chancery proceedings in force at the
time of foreclosure, personal service of the writ upon plaintiflf was not neces-
sary, but service on the husband was a good service on both, and this was so,
although she was at the time under age, and that, therefore, the action was
not maintainable. (Feitner v. Lewis, 119 N. Y. 131 [1890]; Feitner v. Hoeger,
121 id. 660.)
ON CORPORATIONS— On a domestic corporation.] Personal service of
the summons iipon a defendant, being a domestic corporation, must be made
by delivering a copy thereof, within the State, as follows:
1. If the action be against the mayor, aldermen and commonalty of the city
of New York, to the mayor, comptroller or counsel to the corporation.
2. If the action is against any other city, to the mayor, treasurer, counsel,
attorney or clerk; or, if the city lacks either of those officers, to the officer
performing corresponding functions, under another name.
3. In any other ease, to the president or other head of the corporation, the
secretary or clerk to the corporation, the cashier, the treasurer, or a director
or managing agent. (Code Civil Procediue, § 431.)
Service on managing agent.] Papers may be served upon a domestic
corporation by delivering the same to its managing agent, although the entire
Rule 18] General Eules oe Practice. 135
business of the corporation may not be under his control or in his charge.
Service is also legal when made upon the general superintendent of the corpo-
ration. (Barrett v. American Telephone & Telegraph Co., 18 Civ. Proo. R. 363
[Sup. Ct. 1890].)
Who is a managing agent.] To authorize the legal service of summons
and complaint upon a foreign corporation, where it is made upon its managing
agent in this State (under section 134 of the Code of Procedure), the managing
agent must be one whose agencj' extends to all the transactions of the corpo-
ration; one who has, or is engaged in, the management of the corporation in
distinction from the management of a particular branch or department of its
business. (Brewster v. Mich. C. R. R. Co., 5 How. Prac. 183 [Sp. T. 1850].
See Reddington v. Mariposa L. & M. Co., 19 Hun, 405 [1879]; Sterrell v.
Denver, Rio Grande, etc., Ry. Co., 17 Hun, 316 [1879]; Palmer v. Chicago
Evening Post Co., 85 Hun, 403 [1895]; Faltiska v. N. Y. Lake Erie, etc., R. R.
Co., 12 Misc. Rep. 478 [1895].)
A general agent is a "managing agent" of a foreign corporation.]
Where a foreign railroad corporation has an office in this State, in which a
substantial portion of its business is transacted by a person designated by
itself as a general agent, although followed by words indicating his agency
to be confined to some one department, such agent is a " managing agent "
within the meaning of the provision of the Code of Civil Procedure as to the
■service of summons upon a foreign corporation defendant (§ 432), and a
service upon him is valid and binding upon the corporation. (Tuchband v.
C. & A. R. R. Co., 115 N. Y. 437 [1889].)
——A general superintendent is a managing agent.] On motion to set aside
the service of a summons on a domestic telegraph company it appeared that
the summons was served on the general superintendent of the work of operat-
ing the lines of the company.
Held, that the person served was, the " managing agent " of the company
within the meaning of the provision of the Code of Civil Procedure (§ 431) in
reference to service on domestic corporations, and so that the service was good.
(Barrett v. A. T. & T. Co., 138 N. Y. 491 [1893].)
A general superintendent of the corporation is a managing agent.] Per-
sonal service of a summons in an action against a corporation upon the general
superintendent of the company, who has charge of one of the departments of
the corporation, is sufficient. (Barrett v. American Telephone, etc., Co., 56
Hun, 430 [1890].)
Who is a managing agent of an insurance company.] An agent of an
insurance company properly appointed and qualified to procure and effect insur-
ance for the company, residing at a different place from where the principal
ofl!ice of the company is located, is such a " managing agent " that legal sarvice
of a summons and complaint against the company may be made by serving
on him. (Bain v. Globe Ins. Co., 9 How. Prac. 448 [Sp. T. 18o4].)
A superintendent controlled by the home office.] Where a person has
the control as the agent of a life insurance company, subject to the direction
of the home ofiice, of a district comprising the city of Troy and village of
Lansingburgh and vicinity, with nine assistant superintendents and sixty-two
136 OouETs OF Khcoed. [Euk 18
suti-agents subject to his orders, and has in su'ch district the entire superin-
tendence of all the business of such company, he is a managing agent of tin:
company within the meaning of subdivision 3 of section 431 of the Code of
CSvil Procedure, and the fact that he is controlled in the discharge of his duties
by the home office does not render him any the less a managing agent. (Ives
V. Metropolitan Life Ins. Co., 78 Hun, 32 [1894].)
" Representative," when not a managing agent.] Upon a motion to set
aside the service of a summons upon a person alleged to be the managing
agent of a foreign corporation in the State of New York, the affidavits alleged
that such person was not, at the time of the service, defendant's managing
agent in any sense, but was its " representative " in the city of Chicago, where
he resided, and was only temporarily visiting in the city of New York when
served. The opposing affidavits were to the effect tliat such person was in
New York at the time upon business connected with the company; that he
stated that he represented it, and that his name appeared in the Chicago direct-
ory as "manager" of the company.
Held, that sufficient was not shown to establish that such person was the
managing agent of the defendant within the meaning of section 432 of the
Code of Civil Procedure, and that there was no valid service of the summons.
(Coler V. The Pittsburg Bridge Company, 146 N. Y. 281 [1895].)
A ticket seller not a managing agent.] One who merely sella tickets
for them in such case is not deemed a managing agent upon whom service of
process may be made. (Doty v. Mich. C. R. R. Co., 8 Abb. 427 [N. Y. Supr.
Ct. Sp. T. 1859].)
A baggage master is not a managing agent.] A snit cannot be legally
commenced against a railroad corporation (for loss of baggage or anything else)
by the service of a summons upon a " baggage master " in their employ. He
is not such a " managing agent " as the statute contemplates, but a general
appearance waives the irregularity of such a service. (Tlynn v. Hud. R. E.
Co., 6 How. Prac. 308 [Sp. T. 1851].)
Service on a telegraph operator, insufficient.] An operator of a tele-
graph company in charge of a local office of said company is not a " managing
agent " upon whom process can be served. ( Jepson t. Postal Telegraph Cable
Co., 22 Civ. Proc. R. 434 [Cattaraugus County Ct. 1892].)
Service made on an employee, insufficient.] A corporation cannot be
served by delivering papers to an employee, but the managing agent having
control in the place in which he is located is the proper person upon whom to
make service. (Ruland v. Canfield Pub. Co., 18 Civ. Proc. R. 282 {N. Y. City
Ct. 1889].) .
A superintendent of soliciting agents is not.] A summons cannot be
served upon the superintendent of agent's soliciting for a domestic life insurance
company, who has no other authority or power, as, he is not a managing
agent of said company. (Sehryver v. Met. Life Ins. Co., 29 N. Y. Supp. 1092
[Ulster Co. Cir. 1894].)
Relation of an attorney not that of an agent.] The relation of an
attorney and client does not constitute an agency, such that service upon one,
having no other connection with a foreign corporation than that of attorney
Enle 1,8] Gener/Il Eules of Eeactice. 137
of recorii in an aetian to which it is a party, gives the court jurisdiction
{Taylor t. G. S. P. Association, 136 N. Y, 343 [1893].)
Form of affidavit of service.] It is not necessary for the person who
malies the affidavit to state what grounds he has for knowing that the person
whom he served was said corporation's managing agent. {lb.)
Who are officers de facto of a religious corpoi-ation, on whom service
may be made.] Tlie trustees of a religious corporation and officers appointed
by them, whose elections and appointments were in conformity with the for-
malities prescribed by the statute, mid who have in fact acted and are acting
as such, are at least officers de facto upon whom alone a valid service of
process can be made. (BErrian v. Methodist Society, 4 Abb. 424 [X. Y. Supr.
Ct. Sp. T. 1857].)
Onxailroaa coxpoiatiions.] (See Code of Civil Procedure, § 2880.)
^ On express companies.] (See Code of Civil Procedure, § 2881.)
On a board of supervisors.] (1 R. S. 384, § 3.)
On foreign corporations.] Personal service of a summons, upon a
defendant, being a foreign corporation, must be made by delivering a copy
thereof within the State, as follows:
1. To the president, vice-president, treasurer, assistant treasurer, secretary
or assistant secretary; or, if the corporation lacks either of those oiEeers, to
the officer performing corresponding functions, under another name.
2. To a person designated for the purpose as provided in section 16 of the
General Corporation Law.
3. If such a designation is not in force, or if neither the person designated,
nor an officer specified in subdivision first of this section, can be found, with
due diligence, and the corporation has property within the State, or the cause
of action arose therein; to the cashier, a director, or a managing agent of the
corporation within the State.
4. If person designated as provided in section sixteen of the General Corpo-
ration Law dies or removes from the place where the corporation has its
principal place of business within the State and the corporation does not within
thirty days after such death or removal designate in like manner another
person upon whom process against it may be served within the State, process
against the corporation in an action upon any liability incurred within this
State or if the corporation has property within the State may, after such
death, removal or revocation and before another designation is made be served
upon the Secretary of State. (Code of Civil Procedure, § 432.)
Foreign insurance company, before doing business in this State.] It
must designate the superintendent of insurance as its attorney upon whom
legal process may be served. (Laws of 1892, chap. 690, § 30.)
Service on life or casualty insurance corporations upon the co-opera-
tive or assessment plan. (Laws of 1892, chap. 690, § 203.)
Section 430 amended.] Act amending section 430, in relation to desig-
nation of person upon whom to serve a summons, by substituting the words
" State of New York " in pla<3e of " United States." (Laws of 1899, chap. 524.)
Irregular designation of a person on whom process may be served.]
'A certificate filed by an association in attempted compliance with subdivision
138 Courts of Eecoed. [Rule 18
2 of section 432, Code of Civil Procedure, authorizing a nonresident corporation
to designate a person witliin the State of New York upon whom process may
be served, which does not designate the place where the service can he made,
and is not accompanied by the consent of the person designated, nor filed in
the Secretary of State's office, is fatally defective. (McClure v. Supreme
Lodge, Knights of Honor, 41 App. Div. 131 [1899].)
Service on the insurance superintendent for a company not admitted to
do business in the State.] The service of the summons upon the superintendent
of the insurance department is inoperative, and will be set aside where it
appears that the defendant, a foreign fire insurance company intfending to do
business in the State of New York, appointed such superintendent its attorney
to receive service of process, but that they were refused permission to do
business in the State of New York, and thereupon requested such superintend-
ent to return to them all the papers filed with him. (Richardson v. Western
Home Ins. Co., 29 St. Rep. 820 [Sup. Ct. 1890].)
An admission of service by the superintendent of the insurance depart-
ment is sufficient.] Where the superintendent of the insurance department of
the State of New York has been appointed attorney to receive service of
process in actions against a foreign insurance company, as provided by section
1 of chapter 346 of the Laws of 1884, his written admission of service of a
summons in such an action, sent to him by mail, constitutes a sufficient service
on the company. {Farmer v. National Life Association, 67 Hun, 119 [1893].)
Clerk appointed by the superintendent of a foreign fire insurance com-
pany to take service.] The superintendent of a foreign fire insurance corpora-
tion, who had power to appoint clerks and deputies and to prescribe their
duties, appointed a clerk to take charge of the service of papers upon Mm
for foreign corporations.
Held, that the superintendent had power to appoint a clerk to take charge
of the matter of such service, and where service upon the clerk was authenti-
cated by the written admission of the superintendent it was valid and binding
upon the foreign corporation. (South Publishing Co. v. Fire Association, 67
Hun, 42 [1893].)
Law authorizing service on superintendent of insurance department does
not preclude any other legal methods of service. (Howard v. Prudential Ins.
Co., 1 App. Div. 135 [1896]; Silver v. Western Assurance Co., 3 id. 572
[1896].)
Service on cashier of domestic life insurance company, held valid in
Russell V. Washington Life Ins. Co., 62 Misc. Rep. 403.
— ■ — Service of summons on the cashier of a foreign insurance company in
this State can only be justified under subdivision 3 of section 432 of the Code
of Civil Procedure. In this case the company had designated the State
Superintendent of Insurance as a person authorized to receive service of
process, but the plaintiff served the summons upon a person alleged to be its
cashier. Summons was not delivered to the sheriff, there was no statement
that the cause of action arose in this State, or that the defendant had property
here. Held that the service was defective and should be set aside. (Willcox
v. Phila. Cas. Co., 136 App. Div. 626.)
Eule 18] General Eules of Peactice, 139
Where defendant corporation showa that it has ceased to do business
in this State and has revoked the appointment of the Superintendent of Insur-
ance as the person to receive service of summons, service on the superintendent
is a nullity unless plaintiflf shows that as to him the povfer of attorney was
irrevocable. (Badger v. Helvetia Swiss Fire Ins. Co., 136 App. Mv. 32.)
The designation of the superintendent to receive service of process is
not terminated or revoked by the ratification by the State superintendent of
the license of the company to do business in this State. (Idein Bros. v. Ger.
Union F. Ins. Co., 66 Misc. Rep. 536.)
In default of designation, service on the counsel of a foreign corporation
is good.] The service of a summons here on tlie general solicitor or counsel of
a foreign corporation is good service, where the corporation has failed to desig-
nate a person in this State on whom service of papers could be made, as
required by chap. 279 of the Laws of 1855. (Clews v. The Rockford, R. I. &
St. L. Co., 49 How. Prao. 117 [Sp. T. 1874].)
Where the only person held out by the corporation is occupying the relation
of " a managing agent " within the State of New York, and such manager
is served with a summons directed to the corporation while he is within the
State of New York, the service is a good one. (Young & Fletcher Co. v.
Welshach Co., 55 App. Div. 19 [1900].)
Service, how made on a foreign fire insurance company.] An action
may be commenced, under section 427 of the Code of Procedure, by a citizen
of this State against a foreign fire insurance company, in either of the courts
designated in that section, by the service of a summons in the form prescribed
by the Code as in other civil actions. No other process is required either for
the commencement or the maintenance of the action. (Gibbs v. Queens Ins.
Co., 63 N. Y. 114 [1875].)
On the secretary of a foreign corporation.] Service, within this State,
of a summons upon the secretary of a foreign corporation gives, by force of
section 432 of the Code of Civil Procedure, the courts of this State jurisdiction
of an action against such corporation, and it is not needful, in order to make
such service effective, that the corporation should have any property within
this State, or that the cause of action should have arisen here. (Miller v.
Jones, 67 Hun, 282 [1893].)
On the cashier of a foreign corporation.] The service of the summons
upon the cashier of a foreign corporation is valid under section 432 of the
Code of Civil Procedure, provided such corporations has no other officers within
the State. (McCulloh v. Paillard Non-magnetic Watch Co., 38 St. Rep. 406
[Sup. a. 1891].)
Service on a director of a foreign corporation in an action under chap.
185 of 1857.] Although by a special statute a foreign corporation was liable
to be served by summons in the same manner as a domestic corporation, still,
the service of a summons upon a director of such corporation in an action
brought to recover a penalty under chap. 185 of the Laws of 1857 is insufficient
under section 432 of the Code of Civil Procedure. (Quade v. N. Y., N. H. &
Hartford R. R. Co., 39 St. Rep. 157 [N. Y. Supr. Ct. 1891].)
140 CotTETs OF Eecoed. [Kule 18
Service on a nonresident director of a foreign corporation.] A sum-
mons only may be served on a nonresident director of a foreign corporation
while temporarily in this State, when the cause of action arises here. (Hiller
V. B. & M. R. R. Oo., 4 N. Y. Wkly Dig. 426 [Gen. T. 1877].)
Service of a summons upon a foreign corporation by serving its presi-
dent temporarily in this State not on business of the corporation.] ( Pope v.
Terre Haute Car. Manuf. Co., 87 JST. Y. 137 [1881].) Right of its president to
resign to avoid service. (Ervin v. Oregon Steam Nav. Co., 22 Hun, 598 [1880].)
Service on a corporation under the statute.] Under the statutes of this
State, service within tliis State on the proper officer of a foreign corporation is
equivalent to personal service on a nonresident natural person. If such personal
service cannot be made, service may be made by publication against corpora-
tions in the same cases in which it can be made against nonresident individuals.
(Barnett v. Chi. & L. H. R. R. Co., 4 Hun, 114 [1875].)
On a president after he has resigned.] A president who has resigned
from a foreign corporation and swears to the acceptance of hia resignation is
not a proper person upon whom to serve papers. (Sturges v. Crescent Jute
Mfg. Co., 32 St. Rep. 848 [Sup. Ct. 1890). See, also, Buchanan v. Prospect
Park Hotel Co., 14 Misc. Rep. 435 [1895].)
Service on a director who claimed to have resigned.] Where the
director, who was also secretary and treasurer of a corporation, served with
process, claimed to have resigned before the service, but no successor had been
chosen, and the by-laws provided that directors should serve for one year
"and until such time as successors are chosen," held, that the service of the
summons on him was good. (Timolet v. S. J. Held Co., 17 Misc. Rep. 556
[1896].)
Service on a director who had resigned, though this reduces the number
below the legal minimum, is bad. (Wilson v. Brentwood Hotel Co., 16 Misc.
Rep. 48 [1896].)
Service on a de facto president of a corporation pursuant to stipula-
tion.] Where the service of a summons was made on a de facto president of
a corporation, pursuant to a stipulation between the parties, it was held to be
binding, though by a subsequent order of another court, he was declared not to
be de jure president. (Stillman v. Asso. Lacemakers Co., 14 Misc. Rep. 503
[1895].)
On an ofacer of a corporation who had surrendered his stock.] Where a
resolution had been passed by the directors of a corporation to transfer all the
property to the stockholders, who then surrendered their stock, but there had
been no legal resignation of such directors, it was held that the corporation had
been legally served by the delivery of the summons to a person who had been
the secretary and officer of defendant. (Carnahgan v. Exporters & Pi-oducers
Oil Co., 32 St. Rep. 1117 [Sup. Ct. 1890].)
On the cashier of a bank whose charter has expired.] Where the
charter of a bank has expired and the corporation is no longer in existence,
service upon its former cashier is of no effect. ( Hayden v. Bank of Syracuse,
36 St. Rep. 899 [Sup. Ct. 1891].)
Service of summons on the grand foreman of the A. 0. U. W. is good.
(Balmford v. Grand Lodge A. O. U. W., 16 Misc. Rep. 4 [1896].)
Kule 18] General Eules of Pkactice. lil
Property of the corporation within this State is essential to an order
for publication.] The courts of this State have no jurisdiction to order service
of a summons on a nonresident defendant by publication, unless such defend-
ant has property within the State when the order is made. (Fiske v. Ander-
son, 33 Barb. 71 [Gen. T. I860].)
Service on a resident director of a foreign corporation — when bad.]
Where the action arises without the State, service on a resident director
of a foreign corporation is bad, unless the defendant has property within the
State. (Stanton v. U. S. Pipe Line Co., 90 Hun, 35 [1895].)
No personal judgment against a foreign corporation — when.] Where
service of a summons is made upon a proper officer of a foreign corporation,
no attachment having been issued, and no voluntary appearance by the cor-
poration, the courts of this State do not get jurisdiction of the defendant, so
as to render a personal judgment. (Brewster v. Mich. C. E. R. Co., 5 How.
Prac. 183 [Sp. T. 1850].)
What must be shown by a corporation seeking to set aside a service on
its alleged agent.] Where a corporation moves to set aside service of process
upon its agent, on the ground that he is not a managing agent, it is bound to
show the precise relations of the agent toward it. (Donadi v. N. Y. St. Mut.
Ins. Co., 2 E. D. Smith, 519 [1854]. See, also. Silver v. Western Assurance
Co., 3 App. Div. 572 [1896] ; Persons v. Buffalo City Mills, 29 id. 45 [1898].)
Temporary receiver of a foreign corporation appointed under service on
a managing agent.] The court may appoint a temporary receiver for a foreign
corporation in an action in which service has been made upon its managing
agent where no person has been designated by said corporation to receive
service and none of its officers are within the State. (Glines v. Supreme
Sitting Order of Iron Hall, 50 N. Y. St. Rep. 281 [Sup. Ct. 1892].) Service
on assistant superintendent held void in Kramer v. Buffa.lo Union Furnace
Co., 132 App. Div. 415. See, also, Klein Bros. & Co. v. German Union F. Ins.
Co., €6 Misc. Rep. 536, 136 App. Div. 31, 626.
General manager.] Service on general manager of foreign corporation
who comes into this State on business of the corporation, effectual. Rudd
T. McLean, etc., Co., 54 Misc. 49.
Leaving summons with salesman in the office is insufficient. Frankel v.
Dover Mfg. Co., 104 N. Y. Supp. 459. See, also, Grant v. Cananea C!ons.
Copper Co., 189 N. Y. 241.
ATTACHMENT — ^Where an attachment has been issued and a levy made
the suit will be upheld, though no summons has been served.] Where an at-
tachment has been issued against the property of the defendant, and his goods
have been taken under it, after which he dies, the court acquires sufficient
jurisdiction to enable it to put the suit in such condition that the plaintiff
can enforce his provisional lien, notwithstanding a summons has not been served,
and the court has sufficient control of the action to substitute the personal
representative of the deceased in his place, as a party defendant, in order that
the summons may be duly served. (More v. Thayer, 10 Barb. 258 [Gen. T.
I&50].)
142 Courts of Eecoed. [Kule 19
Affidavit need not show that an action has been begun.] The affidavits
for an attachment need not show that an action has been begun, nor that a
summons has been issued. (Maury v. American Motor Co., 25 Misc. Rep. 657
[1898].)
When attachment and levy not sustained because of nonservice of the
summons on the defendant, who has died.] April 10, 1877, a warrant of at-
tachment, summons and complaint against Josiah Strayer were delivered to
the sheriff for service. April fourteenth a levy was made under the warrant.
On April eighteenth Strayer died, not having been served with the sum m ons.
On May twenty-eighth an order was granted allowing the action to be con-
tinued by the service of a summons and complaint therein on the defendants,
his administrators; and on June eighteenth they were served upon them.
Held, that as the summons was not served within thirty days from its issue,
the warrant of attachment and the levy thereunder were void. (Kelly v.
Countryman, 15 Hun, 97 [1878].)
JUDGMENT — When sustained.] What is a sufficient service upon a corpo-
ration, to support a judgment. Kieley v. Cent. Complete Combustion Mfg. Co.,
13 Misc. Rep. 85 [1895].)
DIVORCE — Service of process in an action for.] See notes under Rule 72.
DELIVERY TO DEPUTY SHERIFF — Good.] The delivery of a sum-
mons to a deputy in charge of the sheriff's office is good service on the sheriff.
(Dunfoxd V. Weaver, 84 N. Y. 445 [1881].)
EULE 19.
Folios to be Numbered — Pleadings, etc., to be Legibly Written — Letter-,
press Copies — Objection, When Waived, Except as to Papers for Court
— Allegations to be Marked on Papers Furnished to the Court.
Every pleading, deposition, affidavit, case, bill, exceptions, re-
port, paper, order or judgment, exceeding two folios in length,
shall be distinctly numbered and marked at each folio in the
margin thereof, and all copies either for the parties or the court
shall be numbered or marked in the margin so as to conform to
the original draft or entry and to each other, and shall be indorsed
with the title of the cause. All the pleadings and other proceed-
ings and copies thereof shall be fairly and legibly written or
printed, and if not so written or printed and folioed and indorsed
as aforesaid, the clerk shall not file the same, nor will the court
hear any motion or application founded thereon.
All pleadings or other papers in an action or special proceeding
served on a party or an attorney, or filed with the clerk of the
court, must comply with section 796 of the Code of Civil Pro-
cedure and must be written or printed in black characters; and
no clerk of the court shall file or enter the same in his office unless
it complies with this rule. The party upon whom the paper is
Eule 19] General Eules of Practice. 143
served shall be deemed to have waived the objection for non-com-
pliance with this rule unless within twenty-four hours after the
receipt thereof he returns such paper to the party serving the
same with a statement of the particular objection to its receipt;
but this waiver shall not apply to papers required to be filed or
delivered to the court.
It shall be the duty of the attorney by whom the copy pleadings
shall be furnished for the use of a court on trial, to plainly desig-
nate on each pleading the part or parts thereof claimed to be
admitted or controverted by the succeeding pleadings.
The first two paragraphs are Rule 20 of 1858. Rule 26 of 1871,
amended. Rule 26 of 1874. Rule 19 of 1877. Rule 19 of 1880. Rule 19
of 1884, amended. Rule 19 of 1888, amended. Rule 19 of 1896.
The last paragraph is part of Rule 19 of 1877, amended. Eule 20 of
1884. Rule 20 of 1888. Rule 20 of 1896.
CODE OF CIVIL PROCEDURE.
§ 22. Writs, etc., must he in the English language, made out on paper or
parchment — what technical words and abbreviations allowed.
§§ 518-546. Gfeneral provisions, applicable to pleadings.
§ 721. Defects in, disregard after verdict, report or decision.
I 726. When the original is lost or withheld, the court may order a copy to
be filed.
§ 824. To be filed with clerk, within ten days after service.
§ 981. Copy pleadings to be furnished on the trial by the plaintiflF.
§ 2533. Written pleadings may be required in the Surrogate's Court.
IRREGULARITY — In motion papers.] A motion to set aside a pleading as
irregular, on the ground that it is not properly folioed, will be denied, with
costs, if the moving papers contain the defect objected to. (Sawyer v. Solioon-
maker, 8 How. Prac. 198 [Sp. T. 1853].)
In judgment.] Failure to folio judgment, entered pursuant to the direc-
tion of the court, does not render it void. It is merely an irregularity. Serv-
ice of a copy thereof, with a notice of entry, is effective to limit the time
for an appeal therefrom, unless the judgment cannot be set aside because of
such irregularity. To take advantage of it, the party served should return
the copy of the judgment, and apprise the opposing attorney of the irregu-
larity to which he objects. (Baptist Society v. Tabernacle Church, 9 App.
Div. 527 [1896]; S. C, 10 id. 288 [1896].) See, also, Goldstein v. Marx, 73
App Div. 545.
ILLEGIBILITY — Of motion papers.] Where motion papers are badly
defaced with interlineations and erasures, the motion will be denied for that
reason. (Johnson v. Casey, 3 Rob. 710; S. C, 28 How. Prac. 492 [Sp. T.
1865]; Henry v. P.ow, 20 id. 215 [Sp. T. I860].)
144 CouETS OF Ebcoed. [Rule 20
RUIE 20.
Service and Settlement of Interrogatories.
Interrogatories to be annexed to a commission issued under
article second of title three of chapter nine of the Code of Civil
Procedure shall be served within ten days after the entry of the
order allowing the commission. Cross-interrogatories shall be
served within ten days after the service of the interrogatories, un-
less a different time is fixed therefor, by the order allowing the com-
mission. In case a party shall fail to serve such cross-interroga-
tories within the time limited therefor, he shall be deemed to have
waived his right to propound cross-interrogatories to the witness
to be examined under the commission. Either party may, within
two days after the service of the cross-interrogatories, or within
two days after the time to serve cross-interrogatories has expired,
serve upon the opposing party a notice of settlement of the inter-
rogatories and cross-interrogatories before a justice of the court or
county judge. The time at which such interrogatories or cross-
interrogatories shall be noticed for settlement shall be not less
than two nor more than ten days after the service of the notice.
If neither party serves such a notice within the time limited there-
for, the interrogatories and cross-interrogatories are to be deemed
settled as served, and shaE be so allowed without notice.
CODE OF CIVIL PROCEDURE.
§§ 887, 888. When commission to issue.
§ 889. HovT and upon what terms granted.
§ BQO. Order made by judge.
S 891. Inturrogatories ; hmv settled.
§ S92. Id.; to be annexed; directions for return.
§ 893. Com mission to examine wholly or partly upon oral questions.
% 894. When open commission may issue, or depositions may he taken.
§ 895. Depositions where adverse party is an infant or committee.
§ 896.. Notice of examination upon oral questions.
§ 891. Open commission.
§ 898. Order directing depositions to be taken.
f 899. Before whom depositions may be taken; notice of taking.
§ 900. How depositions taken.
§ 901. Commission or order to take depositions; how executed and returned.
§ 902. Certificate of execution.
Kule 20] Geneeal Eules of Peactice. 145
§ 903. Certificate, a sufficient return.
§ 904. Return by agent.
s 905. If agent is sick or dead.
§§ 906, 907. Filing deposition, etc., so returned.
§ SOS. Commission, etc., by consent.
§ 909. Where a return to be kept; parties may inspect it, etc.
§ 910. When deposition may be suppressed.
§ 911. Deposition, etc., evidence.
§ 912. When interrogatories and deposition may tie in a foreign language.
§ 913. Letters rogatory.
INTERROGATORIES — Settlement of.] While ordinarily the court re-
serves questions on the settlement of interrogatories until trial, yet where
right to cross-examine is abused cooirt may restrict the examination. (Tread-
well V. Green, 89 App. Div. 60.)
Moving affidavit must show that witness is not within the State.
(Matter of Adams, 31 App. Div. 298.)
Objection to testimony may be made on trial. (Wanamaker v. Mc-
Graw, 168 N. Y. 135.)
Justice under whom interrogatories were settled, without power to pass
upon objections to them. (Spurr & Sons v. Empire State Surety Co., 122
App. Div. 449.)
In the absence of bad faith, the provisions are mandatory. (Oakes v.
Eiter, 118 App. Div. 772.)
What must be shown as to residence. (Brown v. Russell, 58 App. Div.
218.) Must show that his testimony is material. (Wallace v. Blake, 16
Civ. Pro. 384.)
What must be shown to obtain commission. (Boyes v. Bossard, 87
App. Div. 605.)
Objections to questions should be raised at the trial. (Irving v. Royal
Exch. Assurance of London, 122 App. Div. 56.)
Order may be appealed. ( Jennison v. City Sav. Bank, 85 N. Y. 546.)
As to granting open commission, see Deery v. Byrne, 120 App. Div. 6.
When order to take deposition unauthorized. ( Stuart v. Spofford, 122
App. Div. 47.)
Original paper need not be annexed to interrogatories. (Com. Bank
V. Union Bank, 11 N. Y. 203.)
Defective deposition taken without the State returned for correction.
(Risley v. Harlow, 48 Misc. Rep. 277.)
When interrogatories should be framed in both English and foreign
languages. (Roth v. Moutner, 115 App. Div. 148.)
■ As to power to issue letters rogatory, see Decauville Automobile Co. v.
Met. Bank, 124 App. Div. 478.
See, also, Newton v. Porter, 69 N. Y. 133; Goldmark v. Met. Opera House
Co., 22 N. Y. Supp. 136; ClarK v. Man. R. Co., 102 N. Y. 656; Wanamaker v.
McGraw, 168 N. Y. 125 ; Cudlip v. N. Y. Ev. Journal Co., 180 N. Y. 85.
10
146 Courts of Eecobd. [Kule 21
EITLE 21.
Non-enumerated Motions — For What Day Noticed.
Non-enumerated motions, in the Supreme Court, except in the
first and second districts and motions noticed to be heard in Erie
county, shall be noticed for the first day of the term or sitting of
the court, accompanied with copies of the affidavits and papers on
which the same shall be made, and the notice shall not be for a
later day, unless sufficient cause be shown (and contained in the
affidavits served), for not giving notice for the first day. In other
courts such motions may be made on any day designated by the
judges therof. In the Appellate Division such motions may be
noticed for any motion day in the term.
Rule 39 of 1858. Rule 27 of 1871, amended. Rule 27 of 1874, amended.
Rule 21 of 1877. Rule 21 of 1880. Rule 21 of 1884. Rule 21 of 1888,
amended. Rule 21 of 1896.
CODE OF CIVIL PROCEDURE.
§ 768. An applioation for an order is a motion.
§ 769. Motions in the Supreme Court, where to be made.
I 770. Motion in New York city (except for a new trial on the merits)
may be made to a judge out of court.
§ 771. In the absence of a judge, the motion may be transferred to another
judge.
§§ 772, 773. What judges may make orders out of court.
§ 774. Review of an order made by a judge of another court.
§ 776. Subsequent application for an order after the denial of a proper
application therefor.
§ 777. Application for judgment — how withdrawn — second application,
when forbidden.
§ 778. Penalty for violating sections 776, 777.
§ 779. Costs of a motion — how collected.
§ 780. Time of notice of motion — order to show cause.
NOTICE — When for other than first day of term.] A motion may be no-
ticed for a day in term other than the first, if a sufficient excuse appear upon
the moving papers. (Whipple v. Williams, 4 How. Prac. 28 [Sp. T. 1849];
Ogdensburg Bank v. Paige, 2 Code R. 67 [Sp. T. 1849]; Walrath v. Killer, Id.
129 [Sp. T. 1850].)
Order to show cause must be returnable the first day of the term.] The
rule requiring a motion to be noticed for the first day of the term is appli-
aable to an order to show cause. (Power v. Village of Athens, 19 Hun, 165
[1879]. See Matter of Maginn, 100 App. Div. 230.)
Eule 21] Genebal Eules of Pkactice. 147
COPIES OF PAPERS — Omission of the jurat in a copy of an afadavit —
not fatal.] The omission to include the jurat in the copy of the affidavit
served is not fatal. (Graham v. MoCoun, 5 How. Prac. 353 [Sp. T. 1861];
S. C, 1 Code R. [N. S.] 43; Barker v. Cook, 16 Abb. 83 [Gen. T. 1863] ; S. C,
25 How. Prae. 190, 40 Barb. 254. iDefects in copies only, see Chatham Nat.
Bk. V. Mer. Nat. Bk., 1 Hun, 702 [1884] ; Union Furnace Co. v. Shipland, 2
Hill, 413 [1842]; Livingston v. Cheetham, 2 Johns. 479 [1807].)
Copies served should include signatures, etc.] Copies of papers served
should include the signature of counsel, the jurat, etc. {Littlejohn v. Munn,
3 Paige, 280 [1832].)
Relief — in case of an omission to serve the order.] Kelief granted
where the party omits to serve the copy order, or affidavit. (Quinn v. Case,
2 Hilt. 467 [Com. PI. Gen. T. 1839]; Littlejohn v. Munn, 8 Paige, 280 [1832].)
The pleadings are not involved in the papers required to be served with
the notice of motion.] It would seem that the requirement that a notice of
motion be accompanied by copies of the affidavits and papers on which it is
made, does not include pleadings already served, and which need not be served
again. (Badger v. Gilroy, 21 Misc. Rep. 468 [1897].)
Papers served on a previous motion need not be reserved.'] A moving
party who desires to use papers which on a previous motion have been re-
cently served upon the adverse party and are still in the latter's possession, is
not bound to serve such papers again; notice of his intention to use them is
sufficient in analogy with Rule 23. (Deutermann v. Pollock, 36 App. Div.
522 [1899].)
What papers read on motion.] Only those papers that are served with
the notice can be read on the motion. (Noxthrup v. Village of Sidney, 97
App. Div. 271.)
Order of Surrogate — form of.] A surrogate's order should contain
a reference to the papers upon which it was made. (Matter of Gowdey, 100
App. Div. 275.)
RETURN — To whom to be made.] Where papers are to be returned for
irr^ularity, if there be no attorney's name on them, they are to be returned
to the party. If the party is a municipal corporation, having a counsel
chosen under a statute, they should be returned to him. ( Taylor v. The Mayor
of New York, 11 Abb. 255 [Sp. T. I860].)
Indorsement stating defect.] An answer returned because of defective
verification, must have an indorsement to that effect. (Snape v. Gilbert, 13
Hun, 494 [1878]; Schreyer v. Dooley, 1 Law Bulletin, 73 [Sp. T. 1879].)
Objection — must be explicitly stated.] Where a party returns a paper
as irregular, he must state his objections to it explicity. A mere statement
that the service is irregular, and not in compliance with certain sections of
the Code, is not enough. (Chemung Bank v. Judaon, 10 How. Prae. 133 [Sp.
T. 1854]; Broadway Bank v. Danforth, 7 id. 264 [Sp. T. 1852].)
Jurisdiction of the Appellate Division — over motions.] The Appellate
Division has jurisdiction to hear and determine in the first instance any
motion, contested or ex parte, that a Special Term may determine. (Matter
of Barkley, 42 App. Div. 597 [1899].)
148 CouETS OF Eecoed. [Eule 22
Further return to writ of certiorari.] A further return will not be
required to state facts not called for by the writ. (People ex rel. Meehan v.
Greene, 103 App. Div. 393.)
In general] Motion defined, in Matter of Jetter, 78 N. Y. 601.
Application to correct order should be made before justice who heard
motion. (Dinkelspiel v. Levy, 12 Hun, 130.)
Although it is the better praxjtice for the respondent to submit all his
.affidavits, to the opposing party in advance of an argument of a motion, such
submission is not required in the second district by General Rule 21. (Wanser
V. DeNyse, 116 App. Div. 796. See, also. Matter of Petition Argua Co., 138
N. Y. 565; Androvette v. Bowne, 15 How. Prac. 75; Matter of Quick, 92 App.
Div. 121; aflfd., 179 N. Y. 601; Tracy v. Lichtenstadter, 113 App. Div. 754;
•Gross V. Gorsch, 56 Misc. Rep. 649; Wilner v. Ind. Order Abawos Israel, 122
App. Div. 615; Obermeyer & Liebnau v. Adisky, 123 id. 272; Hirschfeld v.
Hassett, 59 Misc. Rep. 154; Roth v. Wallach, Id. 515.)
RULE 22.
Motions to strike out Irrelevant Matter — Notice of.
Motions to strike out of any pleading matter alleged to be irrele-
vant, redundant or scandalous, and motions to correct a pleading
on the ground of its being " so indefinite or uncertain that the pre-
cise meaning or application is not apparent," must be noticed
before demurring or answering the pleading and within twenty
days from the service thereof. The time to make such motion
shall not be extended unless notice of an application for such ex-
tension, stating the time and place thereof, of at least two days,
shall be given to the adverse party.
Rule 50 of 1858. Rule 28 of 1871. Rule 28 of 1874, amended. Rule 22
of 1877. Rule 28 of 1880. Rule 22 of 1884. Rule 22 of 1888, amended.
Rule 22 of 1896.
CODE OF CIVIL PROCEDURE.
§§ 620-536. Form and sufficiency of pleadings and veriiication.
§ 537. Frivolous pleadings, how disposed of.
§ 538. Sham defenses to be stricken out.
§ 545. Irrelevant, redundant and scandalous matter in pleadings — stricken
out on motion.
§ 546. Indefinite or uncertain allegations cured by amendment.
I 721. Defects cured by verdict, etc.
See note under Rule 37.
IRRELEVANT — Power of the court to strike out allegations in pleadings
as irrelevant — how limited.] The court has no power, on motion of a party
Eule 22,] General Eules of Peactice. 149
defendant, to strike out all the allegations of the plaintiff referring to himself,
simply because they are irrelevant to an alleged cause of action against some
other defendant; neither the question as to whether the moving party waa
properly made a defendant, nor the question as to whether the facts alleged
make out a good cause of action as to him, can be raised on such a motion.
The power to strike out, on motion, averments in a pleading because of irrele •
vancy, applies simply to such matter as is irrelevant to the cause of action or
defense attempted to be stated in the pleadings against the moving party.
(Hagerty v. Andrews, 94 N; Y. 195 [1883].)
Facts alleged in support of a denial, not stricten out.] A defendant is
entitled to traverse all the allegations of the complaint, and where, in a suit
for breach of promise to marry, the complaint alleges that there has been no
misconduct on the part of the plaintiff, the answer may deny the allegation,
alleging certain facts in support thereof, and such matter cannot be stricken
out as irrelevant, redundant and scandalous inasmueli as it would affect the
judgment in mitigating damages, though in form improperly pleaded as a partial
defense. (Keegan v. Sage, 31 Abb. N. C. 54 [N. Y. Com. PI. 1893].)
When an answer is not frivolous.] An answer denying any knowledge
or information sufficient to form belief as to the truth of the material allega-
tions contained in a complaint is not frivolous; it is only when the allegation
of want of information relates to some affirmative allegation of defense, not
putting in issue the allegations of the complaint, that it is subject to that
criticism. The fact that a denial contained in an answer is inconsistent with
other portions thereof is not a good ground for striking out sueh denial.
(Sheldon v. Heaton, 78 Hun, 50 [1894].)
Irrelevant matter — argument as to.] When elaborate argument is
necessary in order to show that matter is irrelevant, an order should not be
granted directing sucli matter to be stricken out as irrelevant. (Gaylord v.
Beardsley, 54 St. Eep. 234 [Sup. C?t. 1893].)
What is irrelevant matter.], A motion should be granted to strike out
matter as irrelevant which it is not necessary to prove, and by which a
court will not be affected in its decision. (Peaslee v. Peaslee, 2 Msc. Rep.
573 [N. Y. Supr. Ct. 1893]; Fasnaeht v. Stehn, 5.3 Barb. 650; S. C, 5 Abb.
[N. S.] 338 [Gen. T. 1869] ; Park & Sons Co. v. National Wholesale Druggist
Assn., 30 App. Div. 508 [1898].)
What is not irrelevant matter.] (Bussey & McL. Stove Co. v. Wilkins, 1
App. Div. 154 [1896]; Lynch v. Second Ave. R. R. Co., 7 id. 164 [1896]; Scharf
V. Warren-Scharf Asphalt Paving Co., 15 id. 480 [1897]; Palmer v. Palladium
Printing Co., 16 id. 270 [1897]; Dunton v. Hagerman, 18 id. 146 [1897]; Wend-
ling V. Pierce, 27 id. 517 [1898] ; Barney & Smith Car Co. v. Syracuse R. T. Ry.
Co., 24 Misc. Rep. 169 [1898]; Phillips v. Phillips, 22 id. 475 [1898]; Warner
V. Billings, 53 N. Y. Supp. 805 [1898].)
Matter irrelevant as to one party but irrelevant as to another, will not
be stricken out. (Brown v. Fish, 76 App. Div. 329.)
■ An answer cannot be considered frivolous unless it is bad as a whole.
(Strong v. Sproul, 53 N. Y. 497 [1873]; Munger v. Shannon, 61 id. 251 [1874].)
150 CouETS OF Recoed. [Eule 22
What it comprehends.] (Lee Bank v. Kitching, 11 Abb. 435 [N. Y.
Supr. Ot. Gen. T. I860]; I>ovan v. Dinsmore, 33 Barb. 86 [Gen. T. I860];
Aubery v. Fiske, 36 N. Y. 47 [1867]; Cahill v. Palmer, 17 Abb. 196 [Gen. T.
1863]; Robertson v. N. Y. Press Co., 2 App. Div. 49 [1896]; Schroeder v. Post,
3 id. 411 [1896]; Henriques v. Garson, 26 id. 35 [1898].)
Not favored by the courts.] Such motions not favored by the courts,
and where evidence of the facta pleaded in the allegations sought to be
stricken out has any bearing on the subject-matter of the litigation, motion
■will be denied. (Dalziel v. Press Pub. Co., 52 Misc. Rep. 207.)
Does not apply so as to authorize the determination of the validity of a
defense. (Rankin v. Bush, 108 App. Div. 295.)
Motion to strike out, as irrelevant, a defense which is complete in
itself, will be denied, although the defense is insufficient. (Noval v. Haug, 48
Misc. Rep. 198.)
Motion to dismiss complaint on the ground that it does not state facts
sufficient to constitute a cause of action, haa the effect of a demurrer and
admits allegations of complaint. (Rothman v. Kosower, 48 Misc. Rep. 538.)
Power of striking out should be used with reluctance and caution.
(Matter of City of New York, 48 Misc. Rep. 602.)
Where bare inspection of demurrer does not indicate that it was made
in bad faith, it cannot be disposed of as frivolous. (Hildreth v. Mercantile
Trust Co., 112 App. Div. 916. See, also, Beyer v. Henry Huber Co., 100 N. Y.
Supp. 1029; Citizens' Cent. Nat'l Bank v. Munn, 49 Misc. Rep. 99.)
Motions to strike out portions of pleadings as irrelevant are addressed
to the discretion of the court, are not favored, are denied tmless it is clearly
shown that the allegations are redundant and that the adverse party will
not be harmed and are granted only when a denial will prejudice the moving
party. (Indelli v. Lesster, 130 App. Div. 548; Hamilton v. Hamilton, 124
App. Div. 619.)
An entire defense cannot be struck out as irrelevant, though it be
insufficient. (Tierney v. Helvetia- Swiss Ins. Co., 129 App. Div. 694.)
Facts anticipating a defense of estoppel are irrelevant in a complaint.
(Welcke v. Trageser, No. 2, 121 App. Div. 737.)
If in any view relevant.] The matter pleaded should not be stricken
out, if it may be relevant in any possible view. (Dunton v. Hagerman, 18
App. Div. 146 [1897].)
It must appear on the face.] The irrelevancy or redundancy must ap-
pear upon the face of the pleadings. (Stewart v. Forst, 15 Misc. Rep. 621 [1896] .)
The matter must be clearly irrelevant.] (Follett v. Jewett, 11 N. Y.
Deg. Oba. 193 [Sp. T. 1853] ; McGregor v. McGregor, 35 How. Prac. 385 [Gen.
T. 1865]; Anon., 2 Sandf. 682 [1850]; Littlejohn v. Greeley, 22 How. Prac.
345 [Sp. T. 1861] ; Lynch v. Second Ave. Railroad Co., 7 App. Div. 164 [1896].)
If not, the remedy is by demurrer.] (Struver v. Ocean Ins. Co., 9 Abb.
23; S. C, 2 Hilt. 475 [N. Y. Com. PI., Gen. T. 1859]. See Lee Bank v.
Kitching, 11 Abb. 439 [Gen. T. I860]; S. C, 7 Bosw. 664].)
When the remedy is by demurrer or motion on the trial.] (Walter v.
Towler, 85 N. Y. 621 [1881]; Emmons v. McMillan Co., 20 Misc. Rep. 400
[1897]; Kelly v. Ernest, 20 App. Div. 90 [1898].)
Eule 22] General Rules of Peactice, 151
The entire pleading will not be stricken out.] (Fasnacht v. Stehn, 5
Abb. [N. S.] 338 [Gen. T. 1809]; Blake v. Eldied, 18 How. Prac. 240 [Sp.
T. 1858]; Howell v. Knickerbocker Life Ins. Co., 24 How. Prac. 475 [Sp. T.
1863]. See, also, Frank Brewing Co. v. Hammersen, 22 App. Div. 475 [1897].)
In part relevant.] Where a part of the paragraphs is relevant the
omission to strike out the whole thereof will be denied. (Raines v. N. Y.
Press Co., 12 Hrni, 515 [1895].)
A part of a pleading in tort, the rest being on contract, stricken out.]
.Hunter v. Powell, 15 How. Prac. 221 [Gen. T. 1857].)
When answer allowed to stand.] The defendants in a foreclosure suit
served and amended answer which alleged facta showing that one of the
defendants had no interest whatever in the mortgaged premises; that he was
induced by the representations of the mortgagee to sign the bond and mort-
gage in order to cut off his right as tenant hy the curtesy, although he had no
such right; that he signed the same upon the statement of the plaintiff that it
■was necessary for him to do so as he was the husband of one of the mort-
gagors, and that there was no consideration for his signing such bond and
mortgage. Upon the plaintiff's motion, such amended answer was stricken out.
Held, that the defendants were entitled to have the benefit of their answer, and
that it should have been allowed to stand. (French v. Row, 77 Hun, 380
[1894].)
Unnecessarily elaborate statements, not stricken out.] Where state-
ments are material to the points in question they cannot be stricken out as
sham or irrelevant though unnecessarily elaborate. (Nordlinger v. McKim, 38
St. Rep. 886 [Sup. Ct. 1891].)
In equity actions.] In an equitable action great latitude is allowed the
court with reference to striking out irrelevant matter, and where the matter
alleged to be irrelevant might bear upon the question of costs, which rests in
the discretion of the court, the refusal to strike it out is not error. (Town of
Dunkirk v. L. S. & M. S. R. Co., 75 Hun, 366 [1894].)
What papers should be served.] A copy of the expurgated pleading
need not be served after a portion of the original pleading has been stricken
out as irrelevant. (Ross v. Dunsmore, 12 Abb. 4 [Sp. T. 1861]; S. 0., 20
How. Prac. 328.)
Denial of xnotion to strike out allegations as to a deceased defendant.]
Where a suit has been discontinued as to one of the defendants, who is dead,
the plaintiff is not prejudiced by an order denying motion to strike out all
allegations referring to deceased. (Sleeman v. Hotchkiss, 37 St. Rep. 648
[Sup. Ot. 1891].)
Matter not stricken out because inconsistent.] Where matter in an an-
swer is not irrelevant or redundant, although it may be construed as incon-
sistent, a motion to strike it out will not be granted. (MacCoU v. American
Union Ins. Co., 89 Hun, 490 [1895].)
Laches in an application to strike out inconsistent defenses.] A motion
to strike out of a pleading matter alleged to be irreleva.nt, redundant or
Bcandalous, cannot be granted where the motion therefor is not made within
twenty days after service of the pleading. A defendant may plead as many
152 CouETS OF Eecoed. [Rule 22
defenses as he has, even if they are inoonsietent. An answer cannot be stricken
out or judgment rendered thereon where a part only is frivolous. (Siriani v.
Deutsch, 12 Misc. Rep. 213 [Supr. Ct. Sp. T. 1895].)
The validity of a defense cannot be determined on motion.] Whether
a defense to an action set up in an answer is or is not bad, cannot be de-
termined on a motion ; the proper remedy is by demurrer. ( Smith v. American
Turquoise Co., 77 Hun, 192 [1894].)
Sufficiency of a pleading — not determined on a motion.] When the
sufSciency of a pleading cannot be determined on a motion. (Walter v.
Fowler, 85 N. Y. 621 [1881]; Goodwin v. Thompson, 88 Hun, 598 [1895];
Mason v. Butcher, 67 N. Y. St. Eep. 590 [1895].)
To strike out redundant matter.] A motion to strike out portions of
a reply as redundant will not be granted where there exists only reiteration.
(Pope Mfg. Ct. v. Rubber Mfg. Co., 100 App. Div. 349.)
SCANDALOUS — Striking out scandalous matter, discretionary.] The
granting of a motion to strike out scandalous matter from an answer is within
the discretion of the court, especially where it cannot by itself constitute a
defense. (Wehle v. Loewy, 2 Misc. Eep. 345 [N. Y. Com. PI. 1893].) If
petition for alimony and counsel fees contains sufficient allegations to warrant
relief, the right thereto is not impaired by scandalous and irrelevant matter
contained in the petition. (Hawley v. Hawley, 95 App. Div. 274.)
PlaintiH's attorney may move.] When the plaintiff's attorney is the
person aggrieved by the scandalous matter he may move to strike it out. It
is no answer thereto that no party to the action is aggrieved. (Ih.)
TO MAKE DEFINITE AND CERTAIN — Insufficiency must clearly appear.]
It should be entirely clear upon a motion to the court to make a pleading
more definite and certain that the pleading is iusufiicient, before the court will
interefere. (People v. Tweed, 63 N. Y. 201 [1875]; Cook v. Matteson, 33
St. Eep. 497 [Buffalo Supr. Ct. 1890].)
When it will be granted.] Marvel v. Stone, 3 App. Div. 413 [1896];
Hattermann v. Siemann, 1 id. 486 [1896]; Texas, etc.. Oil Co. v. Mutual Fire
Ins. Co., 58 Hun, 560 [1891]; Persch v. Allison, 85 id. 429 [1895]; Post v.
Blazewitz, 13 App. Div. 124 [1897]; Eolker v. Gonzalez, 32 id. 224 [1898];
Dexter v. Village of Fulton, 86 Hun, 433 1895].)
When it will be denied.] Mason v. Dutcher, 67 N. Y. St. Eepr. 590
[1895]; Pittenger v. S. T. Masonic Eelief Assn., 15 App. Div. 26 [1897];
Kelly V. Sammis, 25 Misc. Rep. 6 [1898]; Kelly v. Ernest, 26 App. Div. 90
[1898] ; Kucher v. Carrl, 23 Misc. Eep. 250 [1898] ; O'Brien v. Ottenberg, 59
St. Eep. 379 [Sup. Ct. 1894].)
When not indefinite.] If the court can see the meaning of the allega-
tions with ordinary certainty the pleading is not indefinite. (Madden v. The
Underwriting Printing & Publishing Co., 10 Misc. Eep. 27 [N. Y. Supr. Ct.
Sp. T. 1894].)
Reference to ascertain facts — when improper.] A motion to make an
answer more definite and certain must be decided upon an examination of the
answer. A reference to ascertain facts cannot be ordered. (Hopkins v. Hop-
kins, 28 Hun, 436 [1882].)
Eule 22] Geneeal Eules of Peactice. 153
Effect of other sufScient allegations.] The fact that the complaint con-
tains other allegations sufficient to warrant the relief asked for does not de-
prive the defendant of the right to have other indefinite allegations made
definite. (People v. N. Y. Juvenile Guardian Society, 6 N. Y. Wkly. Dig. 136
[Gen. T. 1878].)
Motion denied where the moving party had as definite knowledge as the
ether party.] Where it is apparent from the allegations of a pleading that the
adverse party has as much knowledge on the subject as the one who pleads, a
motion should not be granted directing the same to be made more definite and
certain. (Cook v. Matteson, 33 St. Rep. 497 [Buffalo Supr. Ct. 1890].)
Separation of causes of action granted on motion to make the complaint
more definite and certain.] (Cohn v. Jareeky, 90 Hun, 266 [1895].)
Fraudulent acts — surplusage.] A motion to make a pleading more
definite and certain will not be granted, where the allegations therein as to
fraudulent acts may be regarded as surplusage. (Cook v. Matteson, 33 St.
Eep. 497 [BuflFalo Supr. Ct. 1890].)
As to a counterclaim, when denied.] Where a counterclaim is alleged
in answer to a complaint on contract, a motion to make the answer more
definite and certain as to whether the counterclaim sounds in tort should be
denied where such answer, although alleging fraudulent acts which may be
treated as surplusage, shows an intention to set up a claim on contract, and
the demand for judgment is not for damages but for money and costs. (Cook
V. Matteson, 33 St. Eep. 497 [BuflFalo Supr. Ct. 1890].)
Plaintiff not required to elect to charge fraud or mistake.] The court
should not grant the motion of defendant to have the complaint made more
definite and certain in an action for relief on the ground of false items and
mistakes in an account statea when it is apparent from the complaint that
the fraud consisted in incorrect statements as to market prices of goods which
were the subject-matter, nor should plaintiff be compelled to elect whether the
errors in the account were simply mistakes or were made with intent to de-
fraud. (Stern v. Ladew, 51 St. Eep. 456 [Sup. Ct. 1893].)
Motion to make a complaint definite, etc., not granted after answer.]
The defendant cannot move to compel plaintiff to make his complaint more
definite and certain after having served an answer thereto, and if the com-
plaint contains a cause of action a motion to dismiss the same should not be
granted. (Huber v. Wilson, 33 St. Eep. 849 [Sup. Ct. 1890].)
Definite lines of work not required to te specified.] In an action
against two defendants the motion of one to have the complaint made more
definite by setting out explicitly the lines of work to be performed by him,
for a company whose charter plaintiff wishes to vacate, should not be granted,
if such lines appear sufficiently upon the plans which his co-defendant has
filed. (People v. N. Y. Central Underground Ey. Co., 39 St. Eep. 571 [Sup.
Ct. 1891].)
Allegations as to knowledge of fraud which are not obscure.] A com-
plaint in an action for fraud and deceit in inducing the plaintiff to purchase
certain promissory notes, after setting forth the alleged false statements of the
defendant, alleged that the defendant knew his statements to be false, and that
154 Courts of Eecoed. [Kule 22
he "knew of facts and circumstances sufficient to charge him with knowledge
of the falsity" of his statements. Held, that the latter allegartion was not
obscure, and that a motion to make the complaint more definite and certain
should be denied. (American National Bank v. Grace, 67 Hun, 432 [1893].)
Name of person to whom information was given, not required.] Where
a complaint in an action alleges that the agent of the defendant, a stock
broker, gave information which was false and fraudulent, a motion to make
said complaint more definite and certain by showing the name of the agent
was properly denied. (Warsaw v. Hotchkiss, 27 N. Y. Supp. 491 [Sup. Ct.
1894].)
Requiring a statement whether the defendant is charged personally or
officially.] In an action in which, before the trial, a motion is made to compel
plaintiff to make the complaint definite, an order may be granted directing
him to allege whether the defendant will be charged personally or oflBcially.
(Seasongood v. Fleming, 74 Hun, 639 [1893].)
Requiring a definite description of the premises in question.] Upon a
motion to make a complaint more definite and certain in an action brought to
recover for the use and occupation of real property, an order may be granted
directing plaintiff to include a definite description of the premises alleged to
have been occupied. (Gtistaveson v. Otis, 75 Hun, 611 [1894].)
Action for a failure to procure insurance.] In an action against insur-
ance brokers for a failure to procure insurance, the complaint alleged that de-
fendants assumed and undertook to procure renewals of insurance for the
plaintiff, and that they neglected and failed to do so. A motion to make the
complaint more definite and certain was denied, the order reciting a stipula-
lation by plaintiff's counsel that plaintiff relied on the employment of defend-
ants as insurance brokers, and their acceptance of the employment and under-
taking as such to obtain insurance, and not upon an absolute agreement on
their part to renew or obtain insurance.
Held, no error, as defendants were sufficiently protected thereby. (Van
Tassel v. Beecher, 8 Misc. Rep. 26 [Supr. Ct. 1894].)
Denials upon information — when insufBcient.] When the plaintiff is
required by the court, under section 616 of the Code of Civil Procedure, to
reply to new matter set up in the answer which constituted a defense by way
of avoidance, averring the presentation and acceptance of an offer in writing
containing sundry terms of sale and providing for the execution of mutual
releases, and tendering an issue fatal to the plaintiff unless its legal effect
could be avoided, a reply is not sufficient which merely denies knowledge or
information sufficient to form a belief as to whether the offer is correctly set
forth in the answer. The court will require such an insufficient reply to be
made more definite and certain. (Steinway v. Steinway, 74 Hun, 423 1893] ;
affd., 157 N. Y. 710.)
—What is not an excuse for an insufficient pleading.] It is not an excuse
for such an insufficient reply, that the plaintiff cannot be expected to remem-
ber accurately the terms of a writing read in his presence several years ago,
when he could have demanded an inspection of the original, and, on refusal,
the court would have compelled its production. (lb.)
Kule 22,] General Kules or Peactice. 155
Denials not required to be made more definite by adding other matter.]
Where an answer definitely and certainly puts in lasue the allegations of the
complaint the plaintiff is not entitled on a motion to make definite and cer-
tain to have further statements added to it. (White v. Koster, 89 Hun, 483
[1895].)
Defendant not required to be more definite than plaintiff has been.]
Where a plaintiff has not himself set forth a will nor given the provisions
thereof verbatim, he cannot insist that a defendant, who has followed his ex-
ample by setting forth what he considers to be a summary of these provisions
and a construction thereof, shall make his answer more definite and certain
by alleging in the words of the will the part thereof which contains the devise
under which the defendant claims. (Eisner v. Eisner, 89 Hun, 480 [1895].)
A motion to make more definite and certain will be denied where no
particular clauses thereof are specified. A motion which asked merely that
plaintiff be required to show clearly what he intended to claim in relation to
the performance of a contract is properly denied. (Pope Mfg. Co. v. Rubber
Mfg. Co., 100 App. Div. 353.)
Motion is proper remedy.] A motion is a proper remedy to require
a. complaint to ,be made more definite and certain, and defendants are not
limited to a demand for a bill of particulars. (Viner v. James, 92 App. Div.
542.)
Motions to make a complaint miore definite and certain, or, in the
alternative, for a bill of particulars, are improperly joined. (Mutual Life
Ins. Co. V. Grannis, 118 App. 'Div. 830; Mutual Life Ins. Co. v. McCurdy,
No. 2, 118 id. 822. 'See, also, McGehee v. Cooke, 55 Misc. Rep. 40
Carlson v. Albert, 117 App. Div. 836; Christenson v. Pincus, Id. 810
Ebling' Brewing Co. v. Adler, 103 N. Y. Supp. 93; Anderson v. McNeely.
120 App. Div. 676 ; People v. MeClellan, 53 Misc. Rep. 469 ; Palmer v. Van
Deusen, 122 App. Div. 282; Smythe v. Cleary, 127 id. 555; Friedman v.
Denousky, 122 id. 258; Babcock v. Anson, Id. 73; Citizens' Central Nat.
Bank v. Munn, 49 Misc. Rep. 319; Mullen v. Hall, 51 id. 59; Pigone v. Lauria,
100 N. Y. Supp. 976.
Dismissal not proper remedy.] The remedy for uncertainty in a com-
plaint is not dismissal, but motion to make more definite and certain. (Palmer
T. Van Deusen, 122 App. Div. 282.)
I A ffidavit improper.] Facts as to complaint are to be ascertained by
the court on an inspection of it, and an affidavit to that effect is improper.
Deubert v. City of New York, 126 App. Div. 359.
TIME — Motion, when made.] A motion to strike out irrelevant matter
must be made before demurring or answering, and within twenty days from
the service of the pleading. (New York Ice Co. v. Northwestern Ins. Co., 21
How. Prac. 234 [Sp. T. 1861] ; S. C, 12 Abb. 74; Roosa v. Saugerties & Wood-
stock Turnpike Co., 8 How. Prac. 237 [Sp. T. 1853] ; Barber v. Bennett, 4
Sandf. 705 [Sp. T. 1852] ; Siriani v. 'Deutsch, 12 Misc. Rep. 213 [Supr. Ct.
Sp. T. 1895].)
Within what time.] Wlien the right to make such a motion is waived
by procuring an extension of the time to answer or demur. (Brooks v. Han-
chett, 36 Hun, 70 [1885].)
156 OouETS OF Eecoed. [Rule 22
InsufScient time.] If the notice is not served in time, the party desir-
ing the benefit of that fact must show it. (Eoosa v. Saugerties & Woodstock
Turnpike Co., 8 How. Prac. 237 [Sp. T. 1853]; Barber v. Bennett, 4 Sandf.
705 [Sp. T. 1862]; contra, Rogers v. Rathbone, 6 How. Prac. 66 [Sp. T. 1851].)
Not at earliest possible moment.] A motion to make a pleading more
definite and certain need not be made at the earliest possible moment. Where
the time " to plead or otherwise move " has been extended, the motion may be
made before the expiration of the extension. ( Hammond v. Earl, 5 Abb. N. C.
105 [Sp. T. 1878].)
Within twenty days from the service of an amended pleading. (Walker
V. Granite Bank, 1 Abb. [N. 'S.] 406 [Sp. T. 1865].)
After lapse of a year from time of service of pleading, a motion to
strike out parts of it comes too late. (Barber v. General Asphalt Ck)., 125
App. Div. 412.)
Before the cause has been noticed for trial. (Kellogg v. Baker, 15 Abb.
286 [Sp. T. 1862]; Esmond v. Van Benschoten, 5 How. Prao. 44 [Sup. T.
1850].))
Motion to strike out cannot be made at the trial.] A motion to strike
out irrelevant or redundant matter cannot be made at the trial. (Simmons
V. Eldridge, 19 Abb. 296 [Gen. T. 1865]; S. C, 29 How. Prac. 309; Smith v.
Countryman, 30' N. Y. 655 [1864].)
Time when paper served by mail.] If answer is served by mail plain-
tiff has forty days within which to move to make the answer more definite
and certain. (Borsuk v. Blauner, 93 App. Div. 306.)
WAIVER — Service of an answer.] An answer served after notice to strike
out irrelevant matter in the complaint, waives the motion. (Goch v. Marsh
8 How. Prac. 439 [Sp. T. 1853] ; Dovan v. Dinsmore, 20 id. 503 [G^n. T.
I860]; King v. Utica Ins. Co., 6 id. 485 [Sp. T. 1852].)
• Extension of time to answer.] An extension of the time to answer is a
waiver of all objections to the complaint, and a bar to a motion to strike out
irrelevant matter, unless the right to make the motion is expressly given.
(Marry v. James, 34 How. Pr. 238 [Sp. T. 1857]; Bowman v. Sheldon, 5
Sandf. 657 [Sp. T. 1852].)
Stipulation, when not a waiver.] A stipulation extending the time for
defendant to answer, and to malce such application as he should be advised,
embraces a motion to strike out portions of the complaint. (Lackey v. Van-
derbilt, 10 How. Prac. 155 [Sp. T. 1854].)
What is not a waiver of a failure to serve notice in time.] The reten-
tion, by an attorney, of a. notice of motion to strike out of a pleading matter
alleged to be irrelevant, redundant or scandalous, served on him more than
twenty days after service of the pleading to which it relates, is not a waiver
of the failure to serve the notice within such twenty days, as required by
Rule 22 of the General Rules of Practice. (Gibson v. Gibson, 68 Hun, 381
[1893].)
NOTICE — Contents of.] The irrelevant or redundant matter should al-
ways be clearly pointed out by the moving party. ( Bryant v. Bryant, 2 Rob.
612 [Sp. T. 1863] ; Blake v. Eldred, 18 How. Prac. 240 [Sp. T. 1858] ; Bene-
dict V. Dake, 6 id. 352 [Sp. T. 1851].)
Eule 23] G-ENEKAL Rules of Practice. 157
Defects — specifying in motion papers.] The motion papers must point
out the defects alleged. (Rathbun v. Markham, 43 How. Prac. 271 [Sp. T.
1872].)
Of the motion — irrelevant matter stricken out on motion for f rivolous-
ness.] On a motion for judgment on the ground of frivolousness, and for
other relief, irrelevajit matter may be stricken out. (Thompson v. Erie Eail-
road Co., 45 N. Y. 4&8 [1871].)
RES AD JUDICATA — Denial to one defendant, not a bar to the application
of another defendant.] The denial of the motion of one defendant is not a
bar to a similar motion by another defendant. (Xew Jersey Zinc Co. v.
Blood, 8 Abb. 147 [Sp. T. 1859].)
A denial of a motion is not a bar to an action. (Howell v. Mills, 53
N. Y. 322 [1873].)
DISCRETIONARY —Appeal to discretion, after a denial as a right.] An
application may be made to the discretion of the court after a denial of a
motion made on the ground of an absolute right thereto. (Hall v. Emmons,
9 Abb. [N. S.] 370 [Court of Appeals, 1870].)
The striking out of irrelevant and redundant allegations is discretion-
ary. (Town of Essex v. N. Y. & C. R. R., 8 Hun, 361 [1867].)
APPEAL — Lies from an order denying the motion.] An appeal lies from
an order denying a motion to have tlie complaint made more definite and
certain. (Arietta v. Morrissey, 1 Abb. [N. S.] 439 [Gen. T. 1866].)
Appeal from order striking out irrelevant matter — the complaint ad-
judged bad on demurrer.] An appeal from an order striking out a portion of
a complaint as irrelevant and redundant fails, where the complaint is adjudged
bad "Upon a demurrer while the appeal is pending. (Ellison v. Sunj Printing
& Publishing Assn., 41 App. Div. 594 [1899].)
STAY — Stay of proceedings pending an appeal.] The proper method of
suspending the operation of an order to make a pleading more definite, pending
the appeal, is by a stay of proceedings, and not by an extension, of the time
for an amendment. (Culver v. Hollister, 17 Abb. 405 [Gen. T. 1864]; S. C,
29 How. Prac. 479.)
In what case it may be granted.] A stay of proceedings may be granted
pending an appeal suspending the operation of an order striking out a portion
of a pleading. (Culver v. HolUster, 17 Abb. 405; S. C, 29 How. Prac. 475
[Gen. T. 1864].)
RULE 23.
AfSdavits of Merits.
All motions for relief to which a party is not entitled as matter
of right shall be made upon papers showing merits, and the good
faith of the prosecution or defense, which may be shown by any
proof that shall satisfy the court.
Eule 21 of 1858, amended. Eule 29 of 1871, amended. Rule 29 of 1874.
Eule 23 of 1877. Rule 23 of 1880. Rule 23 of 1884. Eule 23 of 1888.
Eule 23 of 1896. Rule 23 as amended, 1910.
158 CouETS OF Eecokd. [Eule 23
CODE OF CIVIL PROCEDURE.
§ 980. Inquest cannot be taken for want of an affidavit of merits, where the
answer is verified.
See Rule 28.
INQUESTS — Not applicable to equity actions.] The rule which authorizes
inquests, where no affidavit of merits is made, is not applicable to equity
actions. (Devlin v. Shannon, 8 Hun, 531 [1876].)
AFFIDAVIT — Proper form.] As to the proper form of an afiidavit of
merits. (See Cannon v. Titus, 5 Johns. 355 [1810]; Swartwout v. Hoage, 16
id. 3 [1819].)
As to counsel.] A failure to state that a counsel whose advice is sworn
to is the counsel of the defendant in the action in which the affidavit is made
is fatal. (State Bank of Syracuse v. Gill, 23 Hun, 40 [1881].)
" On the merits."] The words " on the merits " are essential. (Meeeh
V. Calkins, 4 Hill, 534 [1842]; Jackson v. Stiles, 3 Caines, 93 [1805]; contra,
Briggs V. Briggs, 3 Johns. 449 [1808].)
Advice of counsel must be sworn to.] (Swartwout v. Hoage, 16 Johns.
3 [1819]; Bruen v. Merrill, 3 Caines, 97 [1805].)
Belief in advice.] Belief in the advice of the counsel is not sufficient.
(Brittan v. Peabody, 4 Hill, 61 [1842]; and see note to this case.)
" Fully and fairly stated his case," or " this case."] The affidavit must
state that the party " has fully and fairly stated his case," or " this case," to
his counsel. (Onondaga Bank v. Shepherd, 19 Wend. 10 [1837]; Bleecker v.
Storm, 2 How. Prac. 161 [Sp. T. 1846]; Cary v. Livermore, Id. 170 [Sp. T.
1846]; Brownell v. Marsh, 22 Wend. 636 [1840]; Brown v. Masten, 2 How.
Prac. 187 [Sp. T. 1846] ; and the name of the counsel. Bowman Cycle Co.
V. Dyer, 23 Misc. Rep. 620 [1898]; Gall v. Hutchinson, 26 id. 1 [1899].)
" The facts of his case."] That he has fully, etc., stated " the facts of
this case" is sufficient. (Jordan v. Garrison, 6 How. Prac. 6 [Sp. T. 1851].)
"The facts of his case" is insufficient. (Fitzhugh v. Truax, 1 Hill, 644 [1841],
contra.)
"A good and substantial defense to the bond," insufficient.] (Meech v.
Calkins, 4 Hill, 534 [Sup. Ct. 1842].)
" His case in this cause," insufficient.] (Ellis v. Jones, 6 How. Prac.
296 [Sp. T. 1851].)
Defense " to said action for conversion," insufficient.] (Gold v. Hutchin-
son, 26 Misc. Rep. 1 [1899].)
"A good and valid defense to the whole of the plaintifi's claim as set
forth in said complaint, upon the merits thereof," insufficient.] (State Bank
of Syracuse v. Gill, 23 Hun, 406 [1881].)
"A defense in the action," insufficient.] (McMurray v. GiflFord, 1 How.
Prac. 14 [Chamb. 1850].)
" His defense."] That he has fully, etc., stated " his defense," insuffi-
cient. (Tompkins v. Acer, 10 How. Prac. 309 [Sp. T. 1854]; Richmond v.
Cowles, 2 Hill, 359 [1842]; Brownell v. Marsh, 22 Wend. 636 [1840].)
Eule 24] General Rules of Practice. 159
"The facts of his defense," insufficient.] (Eickards v. Swetzer, 3 How.
Prac. 413 [Sp. T. 1819]; S. C, 1 Code Eep. 117.)
" Has a defense."] A statement that he has a defense to the declara-
tion held insufficient. (Howe v. Hasbrouck, 1 How. Prac. 68.)
Facts come to his knowledge.] The facts of the case, so far as they had
come to his knowledge, and he believes them to exist, insufficient.. (Brown v.
St. John, 19 Wend. 617.)
Affidavit of attorney.] In the absence of the party, an attorney may
make the aiKdavit. (Geib v. Icard, 11 Johns. 82 [18U]; Philips v. Blagge, 3
id. 141 [1808].)
Affidavit of agent.] An agent specially authorized to defend. (John-
son V. Lynch, 15 How. Prac. 199 [Sp. T. 1857].)
Reason to be stated.] The reason why the party does not make the
affidavit must be stated. (Roosevelt v. Dale, 2 Cow. 581 [Gen. T. 1824];
Mason v. Bidlemon, 1 How. Prac. 62 [Sp. T. 1844] ; Davis v. Solomon, 25
Misc. Rep. 695 [1899].)
Absence from the State.] Absence from the State is a good excuse for
the affidavit not being made by the party. (Johnson v. Lynch, 15 How. Prac.
199 [Sp. T. 1857].)
Affidavit by maker — how far available to the indorser.] How far the
affidavit of the maker of a note is available to the indorser. (President, etc.,
of Ontario Bank v. Baxter, 6 Cow. 395 [Gen. T. 1826]; Clark v. Parker, 19
Wend. 125 [1838].)
Default — not opened without affidavit.] An order opening a default is
fatally defective where no affidavit of merits is presented, and will be set aside.
(Thornall v. Turner, 23 Misc. Rep. 363 [1898 Appellate Term]; Davis v. Solo-
mon, 25 id. 695 [1899]; Maguire v. Maguire, 75 App. Div. 534 [1902].)
See Haberstitch v. Fischer, 67 How. Prac. 318; Beglin v. People's Trust Co.,
48 Misc. Rep. 494.
See notes under Rule 28.
RULE 24.
Affidavit for Order Extending Time.
No order extending a defendant's time to answer or demur,
or tlie plaintiff's time to reply to a counterclaim, stall be granted,
unless the party applying for such, order presents to the judge to
whom 'the application is made an affidavit of the attorney or
counsel retained to defend the action that from the statement of
the case made to him by the defendant he verily believes that the
defendant has a good and substantial defense upon the merits to
the cause of action set forth in the complaint, or to some part
thereof, or an affidavit of the attorney or counsel for the plaintiff,
that from the statement of the case made to him by the plaintiff
he verily believes that the plaintiff has a good and substantial
defense upon the merits to the cause of action set forth as a
160 Courts of Eecoed, [Rule 24
counterclaim, or to some part thereof, as the case may be. The
affidavit shall also state the cause of action and the relief de-
manded in the complaint and, where a counterclaim has been inter-
posed, the cause of action alleged as a counterclaim and the relief
demanded in the answer ; and whether any and what extension or
extensions of time to answer, demur or reply by stipulation or
order have been granted.
When the time to serve any pleading has been extended by
stipulation or order for twenty days, no further time shall be
granted by order, except upon two days' notice to the adverse
party of the application for such order.
Rule 22 of 1858, amended. Rule 30 of 1871, amended. Rule 30 of 1874,
amended. Rule 24 of 1877. Rule 24 of 1880. Rule 24 of 1884. Rule 24
of 1888, amended. Rule 24 of 1896. Rule 24 amended, 1910.
CODE OF CIVIL PROCEDURE.
% 781. The time within which a proceeding in an action is prescribed to be
taken, may be enlarged.
§ 782. The affidavit upon which the order was obtained must be served
with it.
I 783. Relief may be granted after the expiration of the time within which
a proceeding should have been taken.
§§ 784, 785. When the time cannot be extended.
§ 2089. Enlarging time to make return, etc., in mandamus proceedings.
AFFIDAVIT NECESSARY —An order extending the time to answer.] When
procured without the affidavits required by this rule it is irregular. (Graham
T. Pinekney, 7 Rob. 147 [Sp. T. 1867]; Ellis v. Van Ness, 14 How. Prac. 313
ISp. T. 18571.)
DEMURRER — After an order extending the time to answer is irregular.]
After an order has been obtained extending the time to answer, it is irregular
for the defendant to demur. (Davenport v. Sniffin, 1 Barb. 223 [Sp. T. 1847].)
STRIKING OUT — ^A pleading — motion for, by what extension authorized.]
An extension of the time to answer and make such application as defendant
should be advised authorizes a motion to strike out a portion of the pleadings.
(Lackey v. Vanderbilt, 10 How. Prac. 155 [Sp. T. 1854]..)
ADDITIONAL TIME— When it commences to run.] An order granting
additional time does not commence to run until the time thereby extended has
expired. (Schenck v. McKie, 4 How. Prac. 246 [Sp. T. 1849]; S. C, 3 Code
Rep. 24; Pattison v. O'Connor, 23 Hun, 307; Mercantile Nat'l Bank v. Corn
Exch. Bank, 68 Hun, 95.)
Seven days' time — when it commences to run.] An order granting
" seven daya' time to plead " commences to run from the date of the order.
(Simpson v. Cooper, 2 Scott, 840.)
Eule 25] General Rules of Peactice. 161
MaiUng of order on the last day, sufficient.] If the order extending the
time to answer is mailed on the last day it is sufficient. (Schuhardt v. Both,
10 Abb. 203 [Sp. T. I860].)
When rule does not apply.] Rule 24, providing in regard to the date of
issue, -where an extension of time has been given, does not apply to a case
where the plaintiff has served a notice of trial on the last day left to him,
but six hours before defendant served by mail his answer. (Wallace v. Syra-
cuse, B. & N. N. R. R. Co., 27 App. Div. 457 [1898].)
WAIVER — Of right to have the complaint amended.] An application for
further time to answer is a waiver of a right to have the complaint amended.
(Bowman v. Sheldon, 5 Sandf. 6U2 [Gen. T. 1852]; S. C, 10 N. Y. Leg. Obs,
339; Marry v. James, 34 How. Prae. 238 [Sp. T. 1857].)
LACHES — Of court — party not injured by.] If the concurrence of the
court is necessary to the doing of an act, the party will not be affected by
its delay; and if its decision be after the time for doing the act is passed it
may be entered as of an earlier date. (C'lapp v. Graves, 9 Abb. 20 [N. Y.
Com. PI. Gen. T. 1859]; S. C, 2 Hilt. 317; 26 N. Y. 418.)
Of attorney.] An order extending the time to answer will not be
granted where the party has been guilty of gross laches. (Hays v. Berryman,
6 Bosw. 679 [Sp. T. I860].)
TIME — Statutory Construction Law — computation of time.] The Statu-
tory Construction Law, as amended by Laws of 1894, chapter 447, changes the
general rule as to the computation of time by days, weeks and months, and
provides that the day from which it is made shall be excluded; but the rule
as to years remains as before, and includes the day from which it is made.
(Aultman & Taylor Co. v. Syme, 91 Hun, 632 [1895].)
Computation of time.] An act which is required to be done more than
fourteen days " before " March sixteenth may be lawfully done on March sec-
ond. (People V. Burgess, 153 N. Y. 561 [1897].)
Fractions of a day.] The law does not regard fractions of a day except
when the hour itself is material. (Marvin v. JIarvin, 75 N. Y. 240 [1878].)
A week.] A week is a definite period of time commencing on Sunday
and ending on Saturday. (Steinle v. Bell, 12 Abb. Prac. [N. S.] 171.)
" Month " and " day " defined.] The word " month " when used in a stat-
ute means a calendar month, and the word " day " means the space of time
between two midnights. (People v. Nash, 12 IST. Y. Wkly. Dig. 545 [Gen. T.
1881]. See Laws of 1892, chap. 677, §§ 26, 27.)
Order extending time may be ex parte — when properly granted.] An
order extending the time to answer may be made ex parte, where the time has
not expired, and is properly granted in case a motion to consolidate two actions
is pending. (Condon v. Church of St. Augustine, 14 Misc. Rep. 181 [1895].)
EITLE 25.
Ex Parte Application — Statements as to Previous Application.
Whenever application is made ex parte on affidavit to a judge
or court for an order, the affidavit shall state whether any previous
11
162 CouETs OF Eecoed. [Rule 25
application has been made for such order, and, if made, to what
court or judge and what order or decision was made thereon, and
what new facts, if any, are claimed to be shown. Tor failure to
comply with this rule, any order made on such application may be
revoked or set aside. This rule shall apply to proceedings supple-
mentary to execution, and to every application for an order or
judgment made in any action or special proceeding.
Rule 23 of 1858. Rule 31 of 1871, amended. Rule 31 of 1874, amended.
Rule 25 of 1877. Rule 25 of 1880. Rule 25 of 1884, amended. Rule 25
of 1888, amended. Rule 25 of 1896.
CODE OF CIVIL PEOCEDUEE.
§ 776. Subsequent applications for an order, after a denial of a prior appli-
cation therefor.
§ 777. Application for judgment caimot be withdrawn without permission
— second application, what must be stated in.
§ 778. Persons violating the last two sections punished for contempt.
§ 1892. Application for leave to sue official bond may be ex parte.
PEEVIOUS APPLICATION — Fact as to, must be stated in supplementary
proceedings.] An affidavit to maintain an order for the examination of a
judgnient-debtor in supplementary proceedings must comply with this rule.
(Diossy V. West, 1 Monthly L. Bulletin [N. Y.], 23 [N. Y. Com. PI. December,
1878].)
Effect of its not being stated.] The failure to state that no previous
application has been made, is an irregularity which does not compel the
court to refuse to grant the order, or to vacate it after it has been granted.
(Bean v. Tonnelle, 24 Hun, 353 [1881]; Pratt v. Bray, 10 Misc. Rep. 445
[1894]; Skinner v. Steele, 88 Hun, 307 [1895]; Matter of National Gramo-
phone Corp., 82 App. Div. 593 [1903].)
Only an irregularity.] Where an order directing the examination of
the defendant before trial has been vacated by reason of the insufficiency of
the papers upon which the application was made, the failure of the plaintiff
upon his second application for an order directing such examination to comply
fully with the provisions of Rule 25, by showing what new facts are claimed
to be shown on the second application or whether or not there are any new
facts, is at most an irregularity and does not compel the court to refuse the
order or to vacate it after it is granted. (Skinner v. Steele, 88 Hun, 307
[1895].)
Order may still be granted.] An order to show cause may be granted
upon affidavit, after a hearing, even if the affidavit does not state that no
previous application has been made for such order. (Wooster v. Bateman,
4 Misc. Rep. 431 [N. Y. Supr. Ct. 1893].)
Order for examination before trial will be vacated where moving papers do
not show that no previous application for the order has been made. ( Mitchell
V. Green, 121 App. Div. 677.)
Kule 26] General Eules of Peactice. 163
As to what is a renewal, see Harris v. Brown {93 N. Y. 390). Application
to correct order should be made before judge who heard motion. (Dinkelspiel
V. Levy, 12 Hun, 130.)
RENEWAL — Leave to renew was formerly unnecessary.] When the appli-
cation is made ex parte to a judge, or a justice out of court upon affidavits,
leave to renew is not necessary. (Belmont v. Erie R. R. Co., 52 Barb. 637-
643 [Sp. T. 1869].)
Omission to enter order.] The omission to enter an order does not
justify a new application. (Peet v. Cowenhoven, 14 Abb. 56 [Chamb. 1861];
Hall V. Emmons, 2 Sweeny, 396 [N. Y. Supr. Ct. Gen. T. 1870].)
RES ADJUDICATA — Decision on a motion is not.] A denial of a motion
is no bar to an action. (Howell v. Mills, 53 N. Y. 322 [1873].)
feee notes under Rule 37.
EULE 26.
Judgment on Failure to Answer, where it May be Applied for — First District.
When the plaintiff in an action in the Supreme Court is entitled
to judgment upon the failure of the defendant to answer the com-
plaint, and the relief demanded requires application to be made to
the court, such application may be made at any Special Term in
the district embracing the county in which the action is triable, or,
except in the first district, in an adjoining county; such applica-
tion, except in the first judicial district, may also be made at a
Trial Term in the county in which the action is triable. When a
reference or writ of inquiry shall be ordered, the same shall be
executed in the county in which the action is triable, unless the
court shall otherwise order. In the first judicial district, every
motion or application for an order or judgment where notice is
necessary, must be made to the Special Term for the hearing of
motions, and where notice is not necessary, to the Special Term
for the transaction of ex parte business, except where other pro-
vision is expressly made by law, or the general or special rules of
practice. In the county of Kings all such applications shall be
made at the Special Term for the hearing of motions. Any order
or judgment granted in violation of this provision shall be vacated
by the Special Term at which the application should have been
made, or by the Appellate Division of the Supreme Court; and
no order or judgment granted in violation of this rule shall be
entered by the clerk.
Rule of 1858. Rule 33 of 1871, amended. Rule 33 of 1874. Rule 26 of
1877, amended. Rule 26 of 1880, amended. Rule 26 of 1884. Rule 26 of
1888, amended. Rule 26 of 1896.
164 CoTjKTS OF Eecoed. [Kule 26
CODE OF CIVIL PROCEDURE.
§ 419. If a copy complaint or notice be not served with the summons, the
plaintiff cannot take judgment without application to the court.
§ 420. Judgment may be taken without application to the court — when.
§ 636. Reference on default in certain actions for tort — defendant m.ay
prove mitigating circumstances.
§ 1212. Judgment by default, bow taken.
% 1213. Amount, how determined.
§ 1214. Application to the court for judgment by default — when necessary.
§ 1215. Proceedings on such application.
I 1216. Application for judgment by default in cases other than where the
summons was personally served.
§ 1217. Attachment and undertaking for restitution required in certain
actions.
§ 1218. A judgment cannot be taken against an infant till twenty days after
appointment ef guardian ad litem.
% 1219. When and of what proceedings defendant in default is entitled to
notice.
§ 1526. Effect of a judgment by default, in an action of ejectment.
§ 1545. Duty of court in case of a default in an action for partition.
■§ 1605. Recovery of dower against an infant by collusion or default of
guardian does not prejudice its rights.
% 1635. Payment into court after judgment in foreclosure of a part of the
amount secured by the mortgage is rendered — ■ proceedings on sub-
sequent default.
I 1645. Judgment by default in an action to determine claims to real
property.
§ 1729. Judgment by default in an action of replevin — damages how ascer-
tained.
I 1753. Judgment annulling marriage not to be rendered by default, without
proof, etc.
§ 1757. Judgment not to be taken by default in an action for divorce, without
proof.
§ 1774. Regulations concerning judgments by default, in matrimonial actions.
DEFAULT — Practice where only part of the defendants are in default.]
Proper practice where there are several defendants, some of whom appear and
others of whom are in default. {Lyon v. Yates, 61 N. Y. 661 [1875]; Catlin
V. Billings, 13 How. Prac. 511 [Sp. T. 1857]; S. C, 4 Abb. 248.)
What notice sufficient to justify entry of judgment.] A notice that a
judgment will be taken for a sum specified " with interest " from a day named,
is sufficient to justify the entry of a judgment in a case in which the com-
plaint is not served. (Swift v. De Witt, 1 Code R. 25 [Gen. T. 1848]; S. C,
6 N. Y. Leg. Obs. 314; 3 How. Prac. 280.)
What defendant concedes by his default, and his rights thereafter.
(Bassett v. French, 10 Misc. Rep. 672 [1895].)
Eule 27] GswEEAL Eules of Peactice, 165
What notice is sufficient.] (Mason v. Corbin, 29 App. Div 602
[1898].)
Judgment on default — not more favorable than asked for.] Where
there is no answer, the judgment entered in the action should not be more
favorable to the plaintiff that that demanded in the complaint. (Harrison
V. Union Trust Co. of New York, 144 N. Y. 326. See, also, McVity v. Stanton,
10 Misc. Rep. 105 [1894].)
A report must be made and filed on a reference.] If a reference be
ordered a report must be made a.nd filed. (Am. Ex. Bk. v. Smith, 6 Ahb-
1 [N. Y. Sup. Ct. Gen. T. 1857].)
Order of default — not necessary.] An order of default need not be
entered on a failure to answer. (Watson v. Brigham, 3 How. Prac. 290 [Sp.
T. 1848].)
Proper form of notice of assessment of damages.] (Kelsey v. Covert,
15 How. Prac. 92 [Sp. T. 1857]; S. C, 6 Abb. 236, n.)
Application when proper at Trial Term.] When, in a proceeding for
the substitution of an attorney in two pending suits, the judge at Special
Term, after hearing the motion, refers the matter to a referee to take proof
and report what sum is due to the attorney sought to be removed and directs
the application to stand over for further consideration until the referee shall
make his report, it is not improper practice to notice the motion for the con-
firmation of such report for a Trial Term at which the same judge who held
the Special Term is then sitting. Eule 26 is not applicable under such cir-
cumstances. (Hinman v. Devlin, 40 App. Div. 234 [1899].)
When time to answer is extended.] When the time of a defendant to
answer is entended by order, plaintiff cannot take judgment until the time
to answer as extended has expired. (Littauer v. Stern, 177 N". Y. 233.)
As to References, see notes under Rule 30.
In general.] Notice that judgment will be taken for certain Bxan with
interest from certain date, sufficient. Clerk cannot enter judgment for unliqui-
dated damages without order of court. (Matter of Scharrmann, 49 App. Div.
278; Bullard v. Sherwood, 85 N. Y. 253, revg. 22 Hun, 462.)
What proof admissible under plea of justification. (Lampher v. Clark, 149
N. Y. 472.) May plead facts arising subsequent to commencement of action.
(Gabay v. Doane, 66 App. Div. 507. See Bradner v. Faulkner, 93 K Y. 515;
Gressman v. Morning Journal Assn., 197 id. 474.)
Remedy for default is by motion to open. (Hawkins v. Smith, 91 Hun, 299.)
Whether proof shall be taken at separate time is a matter of practice.
(Lyon V. Yates, €1 N. Y. 661.)
Omission to apply to court is an irregularity and judgment is not void-
(Bissell V. N. Y. C. & H. R. R. Co., 67 Barb. 385.)
UTILE 27.
Orders Granted on Petitions — Recitals in — May be Docketed as Judgments.
Orders granted on petitions, or relating thereto, shall refer to
such petitions by the names and descriptions of the petitioners.
166! CouETs OF Eecoed. [Eule 27
and the date of the petitions, if the same be dated, without reciting
or setting forth the tenor or substance thereof unnecessarily. Any
order or judgment directing the payment of money, or affecting
the title to property, if founded on petition, where no complaint
is filed, may, at the request of any party interested, be enrolled
and docketed, as other judgments.
Rule 56 of 1858. Rule 35 of 1871. Rule 35 of 1874. Rule 27 of 1877.
Rule 27 of 1880. Rule 27 of 1884. Rule 27 of 1888. Rule 27 of 189ii.
CODE OF CIVIL PEOCEDUEE.
§ 15. No punishment for nonpayment of interlocutory costs — ^ except'when
ordered to be paid for misconduct. (See Civil Eights Law, § 20.)
§ 16'. Orders for payment of money on contract — disobedience to, not pun-
ishable by arrest. (See Civil Eights Law, § 21.)
§ 779. CJosts directed to be paid by an order, if not paid in ten days, pro-
ceedings to be stayed — costs to abide event — taxed as part of the
costs of the action.
§ 1730. When final judgment in replevin to be docketed.
§ 1816. Docket of judgment against an executor individually and in his rep-
resentative capacity.
§ 2550. Docket of final order awarding costs in summary proceedings to
recover land.
§ 2379. Docket of judgment on awaxd of arbitrators.
§ 2553. Docket of decree of surrogate for the payment of money.
§ 3247. Costs in case of transfer of cause of action.
ATTORNEY'S FEES — Docket of order for, improper.] Rule 27 does not
permit an order fixing the value of attorney's services, rendered to a party
to an action, to be docketed as a judgment. (Myer v. Abbett, 20 App. Div.
390 [1897].)
JUDGMENT — Entry of, in a special proceeding.] The final order in a
special proceeding cannot be the basis of a separate and independent judgment.
(Matter of Lexington Avenue, 30 App. Div. 602 [1898, affd., 157 N. Y. 678.)
See notes under Rule 37.
Execution may issue to collect alimony.] (Lansing v. Lansing, 4 Lans.
379 [Gen. T. 1871]; S. C, 41 How. Prao. 248; Miller v. Miller, 7 Hun, 208
[1876]. (See Howe v. Howe, 5 Wkly. Dig. 460 [N. Y. Com. PI. Sp. T. 1878];
Ramppen v. Ramppen, 1 L. Bulletin, 11 [Sp. T. 1878].)
Also to collect money directed to be paid from a trust fund.] (Randall
V. Dusenbury, 9 J. & S. 456 [N. Y. Supr. Ct. Gen. T. 1876].)
Enforcement of a judgment against a dissolved corporation.] (Hast-
ings v. Drew, 50 How. Prac. 254 [Sp. T. 1874].)
A receiver may enforce by execution a judgment between other parties
which requires money to be paid to him.] (Geery v. Geery, 63 N. T. 252
[1875].)
Kule 28] General Rules oe Peaotice. 167
CONTEMPT — Order not enforcible by execution, may be by proceedings
for contempt.] Disobedience may be punished as a contempt where the judg-
ment or order cannot be enforced by execution. (OGara v. Kearney, 77 N. Y.
423 [1879].)
RUIE 88.
Inquests May be Taken, When.
Eule 28 repealed, 1910.
CODE OF CIVIL PROCEDURE.
§ 980. Inquest cannot be taken where the answer is verified.
See notes under Rule 23.
APPEARANCE — By defendant, though no affidavit filed.] When a cause
is called in its regular order on the calendar, the defendant has a right to
appear, though no aflBdavit of merits has been filed. (Starkweather v. Cars-
well, 1 Wend. 77 [1828].)
TRIAL — Before the court.] The trial must be before the court, or the
court and a jury; the case cannot be sent to a sheriff's jury. (Gilberton v.
Fleischel, 5 Duer, 652 [Sp. T. 1856]; Dolan v. Pelly, 4 Sandf. 673 [1851].)
Plaintiff must prove his case, if there be an answer.] Where the de-
fendant has answered, the plaintiff must prove the allegations denied.
(Patten v. Hazenell, 34 Barb. 421 [Gen. T. 1861].)
Defendant may examine plaintiff's witnesses.] The defendant may ex-
amine plaintiff's witnesses for the purpose of controverting the plaintiff's
proof, but not for the purpose of showing a substantive defense. {Kerk«r v.
Carter, 1 Hill, 101 [Sup. Ct. 1841]; Hartness v. Boyd, 5 Wend. 563 [1830].)
Counterclaim not replied to must be allowed.] If a counterclaim be set
up and it is not replied to, it must be allowed. (Potter v. Smith, 9 How.
Prac. 262 [Sp. T. 1854].)
Inquest not proper after discharge of the jury.] An inquest cannot be
taken after the discharge of the jury. (Haines v. Davis, 6 How. Prac. US
[Sp. T. 1851]; S. C, 1 Code E. [N. S.] 407; Dickinson v. Kimball, 1 Code R.
83 [Sp. T. 1848].)
WHEN SET ASIDE — Because of unexpected absence.] When an inquest
will be set aside because of the unexpected absence of one of the defendant's
material witnesses. The right to do so is not affected by the fact that the trial
court refused to postpone the trial. (Cahill v. Hilton, 31 Hun, 114 [1883].)
REVIEW — How obtained — judgment taken on an inquest must be re-
ceived by motion and not by appeal.] Where a judgment has been entered
upon findings made and filed, after an inquest taken at a Circuit, on the fail-
ure of the defendant to appear, the remedy of the defendant is by motion to
set aside the judgment, and not by appeal. ( Greenleaf v. Brooklyn, etc., Rail-
road Company, 37 Hun, 435 [1885] ; affd., Greenleaf v. B., etc., E. Co., 102
N. Y. 96.)
SERVICE OF AFFIDAVIT OF MERITS — Affidavit must be served before
■first day of term.] The affidavit must be filed and served before the first day
of the Circuit. (Baker v. Ashley, 15 Johns. 536 [1818].)
;
168 CouETs OF Eecoed. [Eule 29
On second day.] Where an affidavit of merits is not filed until the
second day of the Circuit, it must be so served as in all probability to bring
its service to the knowledge of plaintiff's attorney before an inquest is taken.
(Smith v. Aylesvirorth, 24 How. Prae. 33 [Gen. T. 1862] ; Brainard v. Hanford,
6 Hill, 368 [1854].)
VERIFIED PLEADING — No inquest.] No inquest can be taken in any
ease for want of an affidavit of merits where the answer is verified. ( Code of
Civil Procedure, § 980.)
EQUITY CASES — Eule not applicable to.] This rule does not apply to
equity cases. (Devlin v. Shannon, 8 Hun, 531 [1876].)
RULE 29.
Opening of Counsel and Examination of Witnesses and Summing Up.
In the trial of civil causes, unless the justice presiding or the
referee shall otherwise direct, each party shall open his case before
any evidence is introduced, and, except by special permission of
the court, no other opening by either party shall thereafter be
permitted.
On the trial of issues of fact, one counsel only on each side
shall examine or cross-examine a v^itness, who shall not repeat the
answer or answers of such witness at the time he shall be under
examination. One counsel only on each side shall sum up the
cause, and he shall not occupy more than one hour, and the testi-
mony, if taken down in writing, shall be written by some person
other than the examining counsel; but the judge who holds the
court may otherwise order, or dispense with this requirement.
While addressing the court, examining witnesses or summing
up, counsel shall stand.
Eule 30 of 1858. Eule 37 of 1871. Eule 37 of 1874. Eule 29 of 1877.
Eule 29 of 1880. Eule 29 of 1884, amended. Eule 29 of 1888, amended.
Eule 29 of 1896. Eule 29 as amended, 1910.
OPENING AND CLOSING CASE — A legal right.] The right of a party
holding the affirmative to open and close the case is a legal right. (Millerd
V. Thorn, 56 N". Y. 402 [1874]; Murray v. N. Y. Life Ins. Co., 85 id. 236
[1881].)
Right to open and close, a substantial one.] The privilege the party
having the affirmative of the issues in an action has of opening and closing
the case on trial is founded upon a substantial right, the denial of which,
unless it be made to appear that he could not have been injured thereby is
error. (L. 0. N. Bank v. Judson, 122 N. Y. 278 [1890].)
Eule 29] General Eules of Peactice. 169
Test of the right.] The question as to which party has this right is to
be determined by the pleadings, and the teat is whether, without any proof,
plaintiff, upon the pleadings, is entitled to recover upon all the causes of
action alleged in his complaint. If he is not, no matter how little proof the
issue may require, if it is requisite to establish it by evidenec, plaintiff has
the right to open and close the case. If he is, and defendant alleges a
counterclaim, controverted by plaintiff, or sets up an affirmative matter of
defense, which is the subject of trial, the defendant has that right, {lb.)
Its denial requires a reversal.] A judgment will be reversed because of
an error of the trial court in deciding as to which party should open and
close the case. (Plenty v. Rendle, 43 Hun, 568 [1887].)
Refusal to instruct a party to take the atErmative.] A refusal to in-
struct the opposite party to take the affirmative affords no valid ground for
an exception. (Clark v. Smith, 9 Misc. Rep. 164 [N. Y. Com. PI. Gen. T.
1894].)
Error in allowing the affirmative, cured.] An error in allowing the
plaintiff the affirmative of the issue may be cured by his consent and offer to
allow defendant the final summing up. (Lake Ontario Nat. Bank v. Judson,
33 N. Y. St. Rep. 371 [1890]; S. C, 122 N. Y. 638.)
"When the question of relative right should be presented.] A request on
the trial to the court to state the order in which counsel shall present the case
to the jury, can only be made after the whole evidence has been presented.
(Mead v. Shea, 92 N. Y. 122 1883].)
Right, how determined.] The question as to the right to the affirma-
tive is to be determined upon the state of the pleadings when the case comes
to trial. (Kolbe v. Price, 14 Hun, 55 [1878]. See Gilland v. Lawrence, 13
N. Y. Wkly. Dig. 372 [1881].)
Defendant must claim the affirmative upon the trial of the action.]
Where the plaintiff has the affirmative upon the pleadings and the defendant
does not claim it upon the trial, it is not error to deny the defendant's appli-
cation for the affirmative in summing up. (Crawford v. Tyng, 7 Misc. Rep.
239 [N. Y. City Ct. 1894].)
Issues under which plaintiff has the affirmative.] When, in an action
brought to recover for goods sold and delivered, the answer contains a general
denial of the allegations of the complaint and puts in issue the question of
sale and delivery as well as that of price and payment, the plaintiff has the
affirmative of the issue, and is entitled to open and close the case. (Felts v.
Clapper, 69 Hun, 373 [1893].)
— —Where exemplary damages are allowable, the affirmative is upon the
plaintiff — what decides the right to open and close.] In an action where
exemplary damages are allowable, the affirmative is upon the plaintiff. Where,
in a libel suit, there is a question whether there was actual or implied malice,
the affirmative is with the plaintiff, and the act of defendant's counsel in
withdrawing the general denial, admitting the publication of the article and
standing on justification and privilege and mitigation, will not give him the
right to open and close.
The question as to who should have the right to open and close, should be
decided upon the pleadings, and not upon admissions, or oral withdrawals.
.(Parish v. Sun Printing & Publishing Assn., 6 App. Div. 585 [1896].)
l'?^0 CouETs OF Eecoe-d. [Eule 29
Where plaintiff has right to open and close in an action for rent.] In
an action for rent, where the complaint alleges that defendant had neglected
and refused to pay the rent due and payable, and the answer denies said alle-
gation, it is reversible error to deny plaintiff the light to open and close since
he was bound to prove the nonpayment. (Trenkmann v. Schneider, 23 Misc.
Eep. 336 [1898].)
Issues under which the defendant has the affirmance.] In an action
by the payee of a note against the maker, the answer admitted the making of
the note and did not dfeny any of the allegations of the complaint and alleged
affirmatively that the note was given without consideration under an agree-
ment that the same was to be paid only out of the profits of a certain business
that had realized no profits. Held, that a denial of the right to open and
close, excepted to, was error entitling defendant to reversal of a judgment
against him. (Brown v. Tausick, 1 Misc. Eep. 16 [N. Y. City Ct. 1892].)
Allegations of the complaint admitted.] Where the answer admits the
allegations of the complaint, and the defense was upon a counterclaim, the
defendant is entitled to make the closing argument to the jury, and a denial of
the privilege affects a substantial right. (Staats v. Hausling, 22 Misc. Rep.
526 [1898].)
In an action for rent.] In an action for rent under a lease the com-
plaint alleged the making of the lease, which provided for rent payable monthly
in advance; that plaintiff had performed all the conditions of the lease, and
that a certain sum was due for the month of September, which defendants
refused to pay. The answer admitted the making of the lease, and that de-
fendants refused to pay the amount demanded; denied all other allegations
of the complaint, and set up affirmative defenses. Held, that no material alle-
gation of the complaint was denied and that defendants had a right to the
affirmative of the issue. (Hurliman v. Seckendorf, 9 Misc. Rep. 264 [City Ct.
of Brooklyn, 1894]; S. C, 10 id. 549 [1894]; distinguished, Trenkmann v.
Schneider, 23 id. 336 [1898].)
Time allowed for arguments discretionary.] It is a matter of discre-
tion with the court to determine what time shall be allowed in summing up
under the circumstances of the case, and unless such discretion is abused the
Court of Appeals will not interfere with it. (Eehberg v. The Mayor, etc., of
New York, 1 Eastern Reporter, 182 [Ct. of App. 1885].)
Time allowed — how objection should be taken.] Where the time
allotted to defendant's counsel was thirty minutes, and to the district attorney
twenty-five, and it appeared that the former was stopped by the court at the
expiration of his time but the latter continued his address for five minutes
more than his allotted time, when he was stopped, held, that this did not tend
to establish an abuse of discretion; that the defendant's counsel had the right
to ask the court to stop the district attorney at the expiration of his time, and
not having done so, there was no ground for complaint. (The People v. Kelly,
94 N. Y. 526 [1884].)
Counsel limited to points in issue.] Counsel will be restrained in his
statements to the points in issue. (Fry v. Bennett, 3 Bosw. 201 [N. Y. Supr.
Ct. 1858]; Mitchell v. Borden, 8 Wend. 570 [1832].)
Eule 29] Genekal Rules of Peactice. 171
Reading a book.] It is error to allow counsel in summing up to read
irom a pamphlet proved to have been issued by the defendant but not put in
evidence. (Koelger v. Guardian Life Ins. Co., 57 N. Y. 638 [1874].)
An exception to allowing counsel to read to the jury, as part of his
argument but not as evidence, parts of a book, cannot be sustained if the case
does not disclose what he reads. (Lyons v. Erie Railway Co., 57 N. Y. 492
[1874].)
Reading from a law book.] In an action brought to recover a balance
alleged to be due upon a contract for the sale of wrought scrap iron, a verdict
was rendered sustaining a counterclaim interposed by the defendant which set
•up a failure of the plaintiff to perform the written contract in which the weight
and quality of the iron were guaranteed. In addressing the jury the defend-
ant's counsel was allowed, against the objection and exception of the plaintiff,
to read to the jury extracts from Bliss on Insurance, which state the doctrine
of warranty and the necessity of strictly complying therewith, as applicable
to policies of insurance. Held, that this was error, as the doctrine of warranty
governing policies of insurance were not applicable to sales of chattels. That,
although counsel may, perhaps, be allowed in this State to read to the jury
when what is read is the law of the case and can by no possibility prejudice
the adverse party, yet it is a custom more honored in the breach than in the
observance, and should not be allowed as long as the jury are required to
accept for their guidance the legal rules pronounced by the court. (Lesser v.
Perkins, 39 Hun, 341 [1886].)
Reading to the jury an opinion of the Court of Appeals.] A reversal
should not be granted where an attorney reads to the jury an opinion of the
Court of Appeals. (Williams v. Brooklyn Elevated R. R. Co., 32 St. Rep. 702
[Sup. Ct. 1890].)
Heading from an opinion given on a former appeal is error.] The pub-
lication of a libelous article was admitted. The statement therein that plaintiff
was defendant, instead of complainant, in a criminal action was proved to be
the error of the reporter, which was corrected in the next issue of the defend-
ant's newspaper. No malice, in fact, or substantial damages were alleged or
proved. lield, that it waa error to permit plaintiff's counsel, in summing up,
to read an extract from an opinion on a former appeal in the case which had
a tendency to induce the jury to believe that, as a matter of law, plaintiff had
a right to substantial, as distinguished from nominal, compensatory damages.
(Griebel v. Rochester Printing Co., 24 App. Div. 288 [1897].)
Reading to the jury a newspaper article.] A new trial should not be
granted where a counsel in summing up reads a newspaper article in regard to
individual rights being infringed upon by corporations, such article, however,
not referring to the particular company defendant, and when the counsel might
have stated the substance thereof. (Williams v. Brooklyn Elevated R. R. Co.,
32 St. Rep. 702 [Sup. Ct. 1890].)
Interference by the court with counsel.] The interference by the court
with counsel when opening a case to the jury is, as a general rule, a matter
of discretion and not the subject of exception. (Walsh v. People, 88 N. Y.
458 [1882].)
172 CouBTS OF Eecoed, [Eule 29
Interruption of the summing up by the judge.] A new trial should
he granted where upon the trial the judge interrupted the plaintiff's counsel
when s,umming up his case before the jury, asking him to shorten his argument,
and in consequence of which the counsel became confused and failed to discuss
material facts. (Campanello v. N. Y. Central, etc., R. R. Co., 39 St. Rep. 445
[Buffalo Supr. Ct. 1891] ; affirmed, 39 St. Rep. 274.)
Statement of counsel.] What statements of counsel, if objected to
warrant reversal. (Mulligan v. Met. S. R. Co., 89 App. Div. 207; Benoit v.
N. Y. C. & H. R. R. Co., 93 App. Div. 24.)
Eight to open and close.] Eight is determined by the pleadings at the
time of trial and cannot be altered by admissions made during course of trial.
(Hollander v. Farber, 52 Misc. Rep. 507.)
The refusal of the right of the defendant to close the case, where the
only issue tried is on his counterclaim, held, reversible error. (Fischer v.
Frohne, 51 Misc. Rep. 578.)
In action for agreed price and value of work done, where answer places
in issue averments relating to price and value, plaintiff has affirmative of issue.
(Petzoldt Co. v. Cohn, 114 N. Y. Supp. 165. See, also, Cilley v. Pref. Ace.
Ins. Co., 109 App. Div. 394.)
Examining witnesses.] Practice of counsel in summing up to the jury
tmder guise of asking questions and getting prejudicial and inadmissible mat-
ters before the jury condemned. (Scott v. Barker, 129 App. Div. 241; Frahm
V. Siegel-Cooper Co., 131 id. 747; Quigg v. Post & McCord, Id. 1.55.)
Misconduct of counsel in making improper remarks and statements in
summing up held cured by an instruction of the court to disregard them.
(Patterson v. Heiss, 110 N. Y. Supp. 1042.)
Handing exhibit to jury.] Act of plaintiff's counsel in handing exhibit
to jury on its retirement, without first asking permission of the court, held
immaterial and unprejudicial. (Wilson v. Faxon, Williams & Faxon, 63 Misc.
Rep. 561.)
Improper remarks of counsel.] See Reehill v. Fraas, 129 App. Div. 563;
Freedman v. Press Publishing Co., 65 Misc. Rep. 85; Stein v. Brooklyn, Queens
Co., etc., Ry. Co., 62 id. 309; Hordern v. Salvation Army, 124 App. Div. 674;
Adler v. Lesser, 110 N. Y. Supp. 196; Kelsey v. City of N. Y., 123 App. Div.
381; Haigh v. Edelmeyer, etc., Co., Id. 376; Horton v. Terry, 126 id. 479;
Orendorf v. N. Y. Cent. Ry. Co., 119 id. 638; Cox v. Continental Ins. Co.,
Id. 682; Loughlin v. Brassil, 187 N. Y. 128; Nelson v. Forty-second St., etc.,
R. R. Co., 55 Misc. Rep. 373.)
PROOF — Order of determined by the court.] Tlie court determines as to
the order of proof. (Carnes v. Piatt, 15 Abb. [N. S.] 337 [Cxeu. T. 1873];
Place V. Minster, 65 N. Y. 89 [1875]; Pollatsohek v. Goodwin, 17 Misc. Rep.
587 [1896]; Johnston v. Mutual Reserve L. Ins. Co., 90 N. Y. Supp. [124
St. Reip.] 539.)
The court may limit the examination of a witness.] After a party
has been permitted to examine a witness at length in reference to a transac-
tion, it is in the discretion of the court to exclude further examination upon
Eule 30] General Rules of Peactice. 173
the subject, and its decision is not reviewable in the Court of Appeals. (Cow-
ing V. Altman, 79 N. Y. 167 [18791.)
What limit may be imposed upon a cross-examination.] So far as the
cross-examination of a witness relates to facts in issue or relevant facts it may
be pursued by counsel as matter of right, but when the object is to test the
accuracy or credibility of the witness, its method and duration are subject to
the discretion of the court, and the exercise of this discretion, unless it is
abused, is not the subject of review. (Langley v. Wadsworth, 99 N. Y. 61
[1885].)
Cross-examination on irrelevant topics.] Inquiries on irrelevant topics
to discredit a witness on his cross-examination, and the extent to which a
course of irrelevant inquiry may be pursued, are matters committed to the
discretion of the court, and the exercise of such discretion is not the subject of
review except in the case of plain abuse and injustice. (People v. Braun, 158
N. Y. 558 [1899].)
Witness to remain until the case is closed.] Right of one party to
have a witness, once summoned and called to testify by his adversary, remain
in court after his examination until the case is closed. (Neil v. Thorn, 88
N. Y. 270 [1882].)
Reading deposition.] Where the deposition of a party, taken before
trial, is read thereon and no objection is taken, he is not thereby precluded from
being examined on the trial. (Misland v. Boynton, 79 N. Y. 630 [1880].)
Explanation of absence of witness.] In what cases the district attor-
ney will be allowed, in answer to comments of counsel for the prisoner, to
explain why a witness is absent. (Blake v. People, 73 N. Y. 586 [1878].)
UTILE 30,
nonsuit before Referee — Referee's Report — Testimony in References Other
than of Issues — Exceptions.
On a hearing before a referee or referees, tlie plaintiff may
submit to a nonsuit or dismissal of his complaint, or may be
nonsuited, or Ms complaint may be dismissed, in like manner
as upon a trial, at any time before the cause has been finally
submitted to a referee or the referees for their decision ; in which
case the referee or referees shall report according to the fact,
and judgment may thereupon be perfected by the defendant.
In references other than for the trial of the issues in an action,
or for computing the amount due in foreclosure cases, the testi-
mony of the witnesses shall be signed by them; the report of the
referee shall be filed with the testimony, and a note of the day
of the filing shall be entered by the clerk in the proper book, under
the title of the cause or proceeding. At any time after the
174: CouETS OF Kegoed. [Rule 30
report is filed either party may bring on the action or proceeding
at Special Term on notice to the parties interested therein.
Rule 32 of 1858, amended. Rule 39 of 1871. Rule 39 of 1864, amended.
Rule 30 of 1877. Rule 30 of 1880. Rule 30 of 1884. Rule 30 of 1888
Rule 30 of 1896. Rule 30 amended, 1910.
CODE OF CIVIL PROCEDURE.
§ 90. Clerks of courts of record in New York county not to be appointed
referees without consent of the parties. See Judiciary Law, § 251.
§ 721. Omission of a referee to be sworn immaterial after the report has
been made.
§ 827. Reference may be ordered for certain special cases.
§ SS8. Commission to take testimony — may issue in aid of a reference.
§ 992. What rulings may be excepted to.
§ 994. When and how exceptions may be taken to the report of a referee.
§ 997. Settlement of a case upon appeal in the event of the disability of the
referee before whom it was tried.
§ 1004. Motion for new hearing after the trial of specific questions by a
referee.
§ 1011. Reference by consent — clerk to enter order — appointing a new ref-
eree where the one named refuses to act or a new trial is granted.
§ 1012. When reference by consent not allowed as of course.
§ 1013. Compulsory reference — when ordered.
§ 1014. Proceedings where the reference is for trial of part of the issues.
§ 1015. Reference upon questions incidentally arising.
§ 1016. Referee to be sworn.
§ 1018. General powers of a referee upon a trial.
§ 1019. Within what time the report must be filed.
§ 1021. Decision of referee upon a demurrer or where a nonsuit is granted.
§ 1022. Decision of referee upon an issue of fact — when it must award or
deny costs — exception.
§ 1024. Qualifications of referee — when judge may act as referee.
§ 1025. Several referees may be appointed.
§ 1026. Proceedings on such a reference.
§ 1215. Judgment by default — reference may be ordered on application for
— judgment, how entered.
§ 1216. Judgment by default, when summons has been served by pnblfca-
tion, etc.
§ 1219. When a defendant in default is entitled to notice.
§ 1221. Where the issues are tried separately the judgment upon the last
trial is to cover all the issues.
§ 1223. Proceedings and power of referee on an application under section 1221.
§ 1226. Judgment ■ — when a reference has been ordered upon one or more spe-
cific questions of fact.
§ 1230. Reference — ^when the judgment requires the appointment of a ref-
eree to do any act thereunder.
Eule 30] Geneeal RtrLEs of Peactice. 175
§ 1231. Final judgment may be ordered to be settled before a referee.
§ 1232. Interlocutory references or inquisitions, how reviewed.
§ 1545 et seq. Reference in partition.
§ 1607 et seq. Reference to admeasure dower.
§ 1659. Referee, on trial of action for wante, may view the property.
§ 1739. Referee to sell chattels in an action to foreclose a lien. See Lien
Law, § 208.
§ 2305 et seq. Reference on petition for discovery of death of life tenant.
§ 2334 et seq. Reference in proceedings for sale of infant's real estate.
§ 2407. Reference to ascertain liens on surplus in foreclosure by advertise-
ment.
§ 2423. Reference on voluntary dissolution of a corporation. See Gen. Corp.
Law, §§ 176, 178, 181, 182, 184.
§ 2546. Surrogate may refer questions of fact, or account to a referee.
§ 2718. Reference of a disputed claim against the estate of a decedent.
I 3367. Reference of issues arising in a condemnation proceeding — time within
which decision must be filed.
§ 3378. Reference to determine the rights of conflicting claimants to the com-
pensation paid in such proceeding.
§ 3380. Reference to ascertain amount of damages where the plaintiff has
been given temporary possession.
§ 3392. Reference on an application for leave to sell, etc., corporate real estate.
See G«n. Corp. Law, § 72.
§ 3431. Reference to determine rights of conflicting claimants on an applica-
tion to foreclose a lien on a vessel. See Lien Law, § 97.
See notes under Rules 31, 32.
DISCONTINUANCE — After allowance of alimony and counsel fee to
defendant.] When the defendant has acquired some fixed rights in the
action, e. g., allowance of alimony and counsel fee in divorce suit, which a dis-
continuance would affect, the plaintiff cannot discontinue without leave of the
court on notice. (Leslie v. Leslie, 3 Daly, 194 [1870]; affirmed, 10 Abb. Prac.
[N. S.] 64 [Ct. of App. 1871].)
Counterclaim.] The plaintiff may discontinue, although defendant has
put in a counterclaim. (Tubbs v. Hall, 12 Abb. Pra<:. [N. S.] 237 [N. Y.
Com. PI. Sp. T. 1871].)
Extra allowance.] The court may, however, compel payment of an
extra allowance in addition to costs as a condition of such discontinuance.
(Tubbs V. Hall, 12 Abb. Prac. [N. S.] 237 [N. Y. Com. PL Sp. T. 1871].)
Proper remedy on referee's dismissal of the complaint.] On a trial
before a referee plaintiff submitted to a nonsuit, the referee entering in his
minutes " complaint dismissed, with costs." Defendant thereupon refused to
proceed with proof of his counterclaim, though requested to do so by the plain-
tiff, and claimed his right to tax costs and enter judgment. Plaintiff moved
then for a dismissal of the counterclaim, which was denied, and judgment was
entered by defendant upon the report of the referee according to the minutes.
Held, that the motion for an order directing that the judgment of dismissal be
vacated, and the case sent back to the referee to take proof and try the issue
176 Courts of Eecoed. [Rule 30
raised by the counterclaim and reply thereto was properly denied, plaintiff's
remedy being by appeal. (Albany Braas & Iron Co. v. Hoffman, 30 App. Div.
76 [1898].)
Right of defendant to withdraw a counterclaim.] Upon the trial of
an action before a referee, the defendant may withdraw a counterclaim set up
in his answer, in the same manner that the plaintiff may submit to a nonsuit
on a trial at circuit, up to the time that the case is submitted to the referee.
(Brown v. Butler, 58 Hun, 511 [1890].)
REFERENCE — Residence of referee — where the referee may sit — when a
reference should be ordered.] The referee need not reside in the county in
which the venue is laid. He may be authorized to sit in any county to take
testimony. (O'Brien v. Catskill Mountain Railroad Co., 32 Hun, 636 [1884].)
Reference to take an account and report, also to decide certain ques-
tions.] The provision of the Code of Civil Procedure (§ 101.5) authorizing the
court to direct a reference " to take an account and to report to the court
thereon either with or without the testimony * * * and also to determine
upon a question of fact arising in any stage of the action * * » except
upon the pleadings," does not authorize a reference simply to take testimony
but to determine a question of fact and report such determination, and this
onlj' to determine some question of fact which arises collaterally not upon the
pleadings. (Doyle v. M. E. R. Co., 13G N. Y. 505 [1893].)
Power of the legislature to authorize it.] As to whether the legislature
has power under the Constitution to confer upon the courts power to grant
such a reference, qucere. (Ih.)
— : — New refereees — of claim against estate.] Where a disputed claim
against the estate of a deceased iperson has been referred, pursuant to section
271S of the Code of Civil Procedure, the proceeding becomes an action in the
Supreme Court, and the practice laid down by the Code for cases in that court
which have been referred by stipulation must be followed. Where in such a
case two of three referees appointed decline to serve, in the absence of any
provision to the contrary in the stipulation for the reference, the court has
the power to appoint other referees, and the exercise of this power is not dis-
cretionary but mandatory. (Hustis v. Aldridge, 144 N. Y. 508 [1895].)
Books not required to be left with the referee.] When the books of a
judgment-debtor have been produced by him upon his examination, he cannot
be compelled to leave them with the referee for the judgment- creditor to exam-
ine. (Barnes v. Levy, 23 Civ. Proc. Rep. 253 [N. Y. City Ct. 1893].)
Order of reference of action made on practice motion.] Tlie court,
upon a practice motion, has no power to make an order of reference to hear
and determine. The only order which it can make is to direct a referee named
to take the testimony and report with his opinion. (Matter of Lord, 81 Hun,
590 [1894].)
Form of order of reference to settle issues of fact preparatory to taking
testimony.] (Miller v. Wilson, 1 Barb. 222 [Sp. T. 1847].)
Common-law action not referable against objection of plaintiff by rea-
son of fact that counterclaim has been interposed which will involve long
examination of accoimts. (Snell v. Niagara Paper Mills, 193 N. Y. 433; Lind-
ner V. Starin, 128 App. Div. 604.)
Eule 30] General Rules of Practice. 177
As to reference in partnership accounting, see London t. Meryasli, 132
App. Div. 323.
Question whether reference will be ordered without consent of parties
to be determined from examination of the complaint alone where counterclaim
is entirely independent of tlie facts in complaint. (Berry v. Maldonado & Co.,
61 Misc. Rep. 442.)
When omission to appoint guardian before commencement of action,
mere irregularity. (Eimo v. Rosail ton Works Co., 120 N. Y. 433.)
Court has power to correct error in name of owner in summons in fore-
closure action. (Stuyvesant v. Weil, 167 N. Y. 421.)
As to when reference will be ordered, see Lustgarten v. Harlam, 56
Msc. Rep. 606; Russell v. McDonald, 125 App. Div. 844; Roome v. Smith, 123
id. 416; Canavan Bros. Co. v. Automobile Club, 121 id. 751; Lindner v. Starin,
60 Misc. Rep. 431; Neal v. Gilleran, 123 App. Div. 63»; Johnson v. Wellington
Copper, et<;., Co., 58 Misc. Rep. 353; Matter of Warren, 125 App. Div. 169;
Pi-hice Line v. Seager Co.. 118 id. 697; Cavard v. Texas Crude Oil, etc., Co.,
Id. 299; Wynkoop v. Wynkoop, 119 id. 679; O'Brien v. Butchers' Dressed Meat
Co., 54 Misc. Rep. 297; Aronin v. Phila. Casualty Co., Id. 630; Matter of Clem-
ent V. Hegeman, 187 N. Y. 274; Fowler v. Peck, 51 Misc. Rep. 645; Smith v.
London Assu. Corp., 114 App. Div. 868; People ex rel. Stewart v. Feitner, 53
Misc. Rep. 334; Hill v. Reynolds, 119 App. Div. 689; Endelberg v. Chapman,
No. 2, 115 id. 154; Hoff v. Robert H. Reed Co., 110 id. 96; Owasco Lake Ceme-
tery V. Teller, Id. 45; Moyer v. Village of Nelliston, Id. 602; Blun v. Mayer,
113 id. 242; Matter of Bishop's Estate, 111 id. 545; Russell Hardware, etc.,
Co. V. XJtica Drop Forge, etc., Co., 112 id. 703; Bentz v. Carleton & Hovey Co.,
100 N. Y. Supp. 206.
EEFEKEE DISQUALIFIED — Referee disqualified by reason of having
acted in a former action between the same parties.] A referee is disqualified
from hearing and deciding proceedings relating to the custody of an infant by
reason of his having already in an action for divorce found one of the parents
guilty of adultery. (Matter of BUss, 39 Hun, 594 [1886].)
When a referee's report will be set aside because of bias and prejudice
upon the part of the referee.] In this action it appeared that the referee from
time to time as the trial proceeded importuned the defendant to aid him in
securing an appointment to an office from the Governor and believed that the
defendant could, by earnestly exerting himself, secure it for him; that these
importunities continued to be addressed or suggested after the submission of the
case and until near the time of its decision, and there was reasonable cause to
believe that the prejudice was occasioned by the failure of the defendant to
answer the last letter from the referee, which was written shortly before the
case was decided. Held, that the report should be set aside. (Burrows v.
Dickinson, 35 Hun, 492 [1885].)
Misconduct of referee — disqualifying him to settle the case on appeal.]
After a referee had made his report in favor of the plaintiff, the latter, as a
consideration of its delivery, executed an agreement giving to the former a first
lien for his fees "upon the judgment and claim of the plaintiff," the same to
be paid out of the " first moneys collected * * * upon said judgment or
12
178 CouETs OF Recoed. [Rule 30
any subsequent judgment that may be recovered." Both the plaintiff and ref-
eree knew at the time that the defendant intended to appeal. Held, that the
referee was disqualified from settling the case, and that the plaintiff having
by his own act created the disqualification waa not entitled as of course to the
benefit of the provisions of the Code of Civil Procedure, section 997, which, in
case of disability of a referee, permits the court to prescribe the manner of
settling the case. (Leonard v. Mulry, 93 N. Y. 392 [1883].)
When waiver is final.] Waiver is final where the attention of the party
to a reference has been called to possible disqualification of referee for having
served as clerk in the office of one of the attorneys. (Fleck v. Cohu, 131
App. Div. 248.)
REPORT — When judgment is entered without authority, and when it is
void for error of referee.] Where an inconsistency appears in the report of
the referee as to which of two persons he has decided against, and where the
report stated as a conclusion of law, in an action against defendant as execu-
trix, the plaintiffs were entitled to a judgment against defendant, without stat-
ing as executrix, held, that the clerk had no authority to enter judgment
against her as executrix, and that a judgment so entered was not irregular
merely but was void. (Matter of Baldwin, 87 Hun, 372 [1895].)
Testimony accompanying the report, if not in full, should present the
substance of what is material.] Where a referee was appointed to take and
state an aoeount of the affirmative claim of the defendant, and the referee
reported in favor of the defendant and a judgment was entered upon the report,
held, that if it was regarded as a reference other than for the trial of the issues
in an action the testimony should be signed by the witnesses and should
accompany the report of the referee, as provided in General Rule 30, and the
testimony, if not quite in full, should present the substance of that which was
material. (Williams v. Lindblom, 90 Hun, 370 [1895].)
Referee's report, on reference to state an account.] Where, in an
action in which no answer is interposed, it is necessary to take and state an
account for the information of the court before judgment, and a reference is
ordered for that purpose, the report of the referee has the effect of a special
verdict (Code of Procedure, § 272) ; and where exceptions are filed to the report
by defendant, whch are overruled, the report confirmed and judgment rendered,
an appeal from the judgment brings up the question whether the facts reported
are sufficient to sustain the judgment; and upon a case with exceptions joined
with the report, errors of law on the part of the referee may be reviewed.
(Darling v. Brewster, 55 N. Y. 667 [1874].)
Finding of fact, included in conclusions of law.] A finding of fact,
though necessary to uphold the judgment, if included in the findings of law, is
sufficient. (Sherman v. Hudson River R. R. Co., 64 N. Y. 254 [1876]; Matter
of Clark, 119 N. Y. 433 [1890].)
Finding inconsistent with the pleadings and the evidence — when judg-
ment set aside because of.] Where the justice at Special Term finds a fact in
conflict with the pleadings and not supported by the evidence, the judgment
should be reversed wliere it is possible that such finding might have influenced
the decision. (Duckelspiel v. Franklin, 2 N. Y. Wkly. Dig. 396 [Sup. Ct.
1876]; Ballau v. Parsons, 11 Hun, 602 [1877].)
Eule 30] General Rules of Practice. 179
What findings required.] The referee is required to make sueh findings
of fact as are necessary to sustain his conclusions of law. He is not required
to find other facts which are merely of a negative character. (McAndrew v.
Whitlock, 2 Sweeny, 623 [Gen. T. 1870]; Nelson v. Ingersoll, 27 How. Prac. 1
[Gten. T. 1864].)
Omission to state a necessary conclusion of law.] When the omission
to find a conclusion of law, resulting necessarily from facts found, is imma-
terial. (Cragger v. Lansing, 64 N. Y. 417 [1876].)
Finding that evidence " leaves the mind in doubt."] Where a referee
finds in his report Uiat the evidence " leaves the mind* in doubt," it is error,
and a new trial will be ordered. (Bradley v. McLaughlin, 8 Hun, 545 [1876].)
Reference to determine issues in an accounting.] Report may state
account between the parties -without an interlocutory judgment that an
account is necessary. (Young v. Valentine, 177 N. Y. 347.)
When finding necessary.] Where issues were tried before referee his
report containing no findings not insufficient, etc. (La Grange v. Merritt, 83
App. Div. 279.)
Report, not excepted to, may be canceled.] Rule 30 provides that a
referee's report becomes absolute if not excepted to for eight days after notice
of filing, but the county judge may, for good cause, cancel the same as for
example, if the report shows that the referee has in his hands a large surplus
which he never in fact received. (Wilson & Adams Co. v. Schorpp, 41 N. Y.
St. Rep. 471 [Sup. Ct. 1891].)
Ambiguous findings — so construed as to sustain judgment.] (Hill v.
Grant, 46 N. Y. 498 [1871]; Fuller v. Conde, 47 id. 89 [1871] ; Waugh v. Sea-
board Banh, 115 id. 42 [1889]; Tyron v. Baker, 7 Lans. 511 [Gen. T. 1873].)
Report of referee under order entered upon remittitur of Court of
Appeals, how reviewed.] The report of a referee, appointed under an order
entered upon a remittitur of the Court of Appeals, to assess the damages to
which plaintiff is entitled, cannot be reviewed by defendants upon a case
and exceptions, but only in compliance with this rule. (Bates v. Holbrook,
41 Misc. Rep. 129.)
Filing of report terminates the action ] The filing of the report of a
referee appointed to hear and determine the issues in an action operates as
a termination of the action. (Spencer v. Huntington, 100 App. Div. 463.)
Report cannot be filed after death of referee.] Under a reference to
state accounts of assignee where the referee has signed his report but not fileil
it and then died. Held, report could not thereafter be filed. (House v.
Wechsler, 104 App. Div. 124.)
On the trial of a demurrer or on. a nonsuit. ( Code of Civil Procedure,
§ 1021.)
On the trial of an issue of fact. (Code of Civil Procedure, § 1022.)
' Where there are several referees a majority of them may sign the
report. (Code of Civil Procedure, § 1026.)
CONFIRMATION OF REPORT — Report of deficiency on foreclosure —
need not be confirmed — nor need a further judgment be entered.] Referee's
report of deficiency on a foreclosure sale, need not be confirmed. No further
judgment need be entered thereon. (Moore v. Shaw, 15 Hun, 428 [1878].)
180 Courts of Eecoed. [Eule 30
Report of sale in foreclosure — how far confirmation is necessary.]
How far it is necessary to have a report of sale by a referee in foreclosure
confirmed in order to perfect the title as between the mortgagor and pur-
chaser, considered. (Moore v. Shaw, 15 Hun, 428 [1878].)
Surplus money proceedings — notice to all claimants necessary.] Under
Rule 64 it is necessary on an application to confirm the report of the referee
in surplus money proceedings to give notice of such application to every
party who has appeared in the foreclosure action or who has filed with the
clerk notice of a claim to such surplus money, although the report of the
referee has been filed and notice of its making and filing has been given, and
no exceptions have been filed thereto.
Rule 30 is not, so far as it conflicts with Rule 64, applicable in this respect
to such a proceeding. (Van Voast v. Gushing; 32 App. Div. 116 [1898].)
When the report becomes absolute.] If a party neglect to except to a
referee's report, for eight days after notice of its filing, it becomes absolute,
although it be defective on its face. (Catlin v. Catlin, 2 Hun, 378 [1874].)
Trial before referee has the same force as trial at Special Term and findings
will not be set aside unless in the opinion of the court there was prejudicial
error. (Coates v. Village of Nyack, 127 App. Div. 153.)
Determination of referee under Laws of 1902, chapter 60, final and con-
clusive, unless set aside by the court. (People v. Federal Bank, 122 App. Div.
810.)
Where an action at law is tried before a referee, errors in the admission of
evidence which are not so substantial as to raise a presumption of prejudice
do not require a new trial. On a trial before a referee the rule is the same
as in suits in equity. (Weihert v. Hanan, 136 App. Div. 388.)
If exceptions be not filed.] Under Rule 30 of the General Rules of
Practice, the report of a referee appointed to take and state the accounts of
an assignee for the benefit of creditors, and to determine the respective priori-
ties of the creditors, becomes absolute unless exceptions thereto are filed and
served within eight days after the service of notice of the filing of the report.
(Matter of Talmage, 39 App. Div. 466 [1899].)
Findings of referee not conclusive on the court.] The finding of a
referee to whom is referred disputed questions of fact arising upon a motion,
is not conclusive upon the court. It is but to inform the conscience of the
court, and may be adopted or disregarded, (ilarshall v. Jleech, 51 N. Y. 140
[1872].)
Questions presented by an appeal.] Where exceptions filed to a referee's
report are overruled, and a decree is made confirming the report, an appeal
from the decree brings up for review only the questions presented by the ex-
ceptions. (Matter of Talmage, 39 App. Div. 466 [1899].)
Ex parte confirmation improper.] The report on a reference ordered
for the information of the court on a motion cannot be confirmed ex parte.
(Sproull v. Star Co., 27 Misc. Rep. 27 [1899].)
Notice of a motion to confirm report — when premature.] A notice of
a motion to confirm the report of a referee appointed to assess the damages
sustained through the granting of a preliminary injunction, served before the
Rule 30] Geneeal Rules of Pkactice. 181
time for filing exceptions lias expired, is premature, and the motion should be
denied. (James v. Horn, 19 App. Div. 259 [1897].)
Where made in the first department. (Empire B. & M. L. Assn. v.
Stevens, S Hun, 515 [1<S76].)
REFERENCE, HOW TERMINATED.] Under section 1019 of the Code
of Civil Procedure, either party may terminate the reference unless the referee
has, within sixty days from the time when the case was finally submitted lo
him, made his report and filed the same with the clerk or delivered/ it to the
attorney for one of the parties ; it is no longer sufficient for him to have made
his report and notified the party in whose favor it was made that it is ready
for delivery. (Phipps v. Carmen, 23 Hun, 150 [1880]; Waters v. Shepherd,
14 Hun, 223 [1878], overruled. See, however, Geib v. Topping, 83 N. Y. 46
[1880].)
Failure of a referee to file his report — what excuses.] Failure of a
referee to deliver or file his report within sixty days — a delaj' of the success-
ful party to take it up, when induced by representations as to a settlement
made by the unsuccessful party, does not justify the vacating of an order of
reference. (Dwyer v. Hoffman, 39 Hun, 360 [1886].)
What is a sufficient delivery of a referee's report.] What is a sufficient
delivery of a report of a referee to prevent either party from terminating t'.ie
reference under section 1019 of the Code of Civil Procedure. (Little v. Lynch,
34 Hun, 396 [1885].)
Failure to report.] Where referee of disputed claim against estate fails to
file report within sixty days, reference may be terminated and new referee
appointed. (Morris v. Garneau, 1 Cur. Ct. December, 98. See, also, Burritt
V. Burritt, 53 Misc. Rep. 26; Matter of Robinson, Id. 171.)
When notice to terminate the reference is ineffectual.] Where, after a
referee had made his report, the parties consent to an order returning the
report to make a supplemental finding on the question of costs, and the matter
is not thereafter finally submitted to the referee, so as to set the sixty days
running, within which he must make his report, a notice to terminate the
reference under Code of Civil Procedure, section 1019, is effectual. (Merritt
V. Merritt, 18 App. Div. 313 [1897].)
Filing of report ends reference.] After referee has made his decision
court has no power to alter or change it. (Union Bag & Paper Co. v. Allen
Bros. Co., 94 App. Div. 595.)
Findings.] Referee to assess damages is not required to file separate
findings of fact and conclusions of law. (Teale v. Tilyou, 127 App. Div. 287;
Lederer v. Lederer, 108 id. 228.)
REFEREE TO BE SWORN — Not in a foreclosure action.] A referee to
compute the amount due after default, in an action for foreclosure, need not be
sworn. (McGowan v. Newman, 4 Abb. N. C. 80 [N. Y. Supr. Ct. Sp. T. 1878].
See Id., p. 78.)
In the case of infants.] On a reference under section 1015, the referee
must take the oath ; if there are infants, there can be no waiver, and the prn-
ceedings will be set aside if the oath be not taken. (Exchange Fire Ins. Co.
V. Early, 4 Abb. N. C. 78 [Sp. T. 1878]. See Id., p. 80.)
182 CoTjETs OF Eecoed. [Eulc 30
The omission to take the oath is a mere irregularity — proceeding in
the cause is a waiver of it.] (Nason v. Luddington, 56 How. Pr. 172 [Gen. T.
1878]. See Waivek, post.)
The former rule is not changed by section 1016 of the Code of Civil
Procedure, except where there are infants or parties not represented. (/6.)
Neglect — how cured. (See Code of Civil Procedure, § 721.)
FEES OF REFEREE — Paid by receiver out of fund.] Where a referee is
appointed to take proofs and report as to the claims of a receiver of an insol-
vent life insurance company for expenses and compensation, the court may, in
its discretion, in the first instance order the fees of the referee to be paid
directly out of the fund. (Attorney-General v. Continental Life Ins. Co., 93
N. Y. 45 [1883]; Matter of Merry, 11 App. Div. 597 [1896].)
Stipulated sum " for every hearing " — meaning of.] Under a stipula-
tion that the referee's compensation should be a sum specified per day " for
every hearing," held that the referee was not entitled to charge for days for
which appointments were made, but on which no hearings were had because
of a prior agreement to adjourn. (Mead v. Tuckerman, 105 N. Y. 557 [1887].)
Stipulation that a referee fix his own fees is not sufEcient.] A stipula-
tion that a referee fix his own fees is not a sufficient compliance with the Code
of Civil Procedure, section 3296, to sustain an allowance of more than $10
per day. (Brown v. Sears, 23 Misc. Rep. 559 [1898].)
Several actions.] Fees where the same parties try several actions
before the same referee. (Brown v. Sears, 23 !Misc. Rep. 559 [1898].)
Referee may insist that his fees be paid before delivery of report.]
The referee may insist that his fees be paid before the delivery of his report,
but upon the implied condition on his part that if they are greater than the
amount ultimately allowed, he will refund the excess. (Duhrkop v. White, 13
App. Div. 293 [1897].)
Fees may be recovered by referee, though report not filed in sixty
days.] A referee may recover compensation without an express promise to
pay, and the fact that he did not file his report within the sixty days pre-
scribed by the Code of Civil Procedure, section 1019, will not preclude recovery,
in the absence of proof that either party elected to terminate the reference.
(Xealis v. Meyer, 21 Misc. Rep. 344 [1897].)
Presumption on appeal.] Where the number of days employed does not
appear in the case, the allowance of referee's fees by a surrogate will be pre-
sumed to be correct. (Kearney v. McKeon, 85 N. Y. 136 [1881].)
Referee who fails to file his report within time prescribed by law forfeits
his right to fees. (Bottome v. Neeley, 124 App. Div. 600.)
As to compensation of referee, see Carter v. Builders' Construction Co., Ko. 2,
130 App. Div. 609; Morgenthaler v. Carlin, 132 id. 361; People v. Bank of
Staten Island, 132 id. 589; Bollard v. Koronsky, 61 Misc. Rep. 392,; Duffy v.
Muller, 52 id. 11.
Stenographer's fees.] As to stenographer's fees, see Eckstein v. Schlei-
mer, 62 Misc. Rep. 635 ; Bottome v. Neeley, 124 App. Div. 600 ; Finch v. Wells,
66 Misc. Rep. 384.
Refeeences in Partition Pbocebdings. See notes under Rule 66.
Eule 30] Geneeal Rules of Peactice. 183
References under Mortgage Foreclosure. See notes under Rules 60 and
64.
References in Action for Divorce or Separation. See notes under
Rule 72.
EXCEPTIONS.] (See "Exceptions" under Rule 32.)
SIGNING TESTIMONY — The remedy for the failure of a witness to sign
the testimony is by motion.] Where the witness fails to sign the testimony
the remedy is by motion, and not by exception to the report. (Nat. Stale
Bank v. Hibbard, 45 How. Prac. 281-287 [Sp. T. 1873].)
FILING TESTIMONY — Testimony must be filed with the report.] The
testimony taken by a referee must be filed with his report. If the stenographer
delivers his notes to the referee for examination, but not to be filed until the
stenographer's fees are paid, the referee must nevertheless file them with his
report. (See Pope v. Perault, 22 Hun, 468.)
CHANCERY PRACTICE — Review under.] Under the old chancery prac-
tice the report of a referee upon the passage of a receiver's account, would only
be reviewed upon petition in an independent proceeding. This practice was
abrogated by the thirty-ninth rule, under which exceptions to such a report are
to be filed, and a hearing upon. the report and such exceptions had. (Matter of
Guardian Savings Institution, 9 Hun, 267 [1876].)
ATTORNEY'S LIEN — Reference to report on.] An appeal from an order
confirming the report of a referee, to whom it was referred to report the e.'ctent
of the liens of the attorney and of certain persons employed as associate counsel
upon a certain judgment, is governed by the provisions of Rule 39, and not by
those of Rule 40. (Brown v. Mayor, 9 Hun, 587 [1877].)
See notes under Rule lO:
INJUNCTION — Order confirming report of referee as to damages from
injunction — not to provide for their payment.] In proceedings to determine
the damages sustained by reason of an injunction having been granted, the
order confirming the report of the referee appointed to ascertain the amount
of damage resulting therefrom should be limited to fixing the amount of dam-
age, and provisions therein requiring the plaintiff to pay the same are im-
proper. (Lawton v. Green, 64 N. Y. 326 [1876].)
WAIVER — Proceeding with reference — a waiver of what.] Proceeding
upon a reference is a waiver of all objections to the order of reference on the
ground of irregularity, hut not of the objection that the court had not juris-
diction. (Garcie v. Sheldon, 3 Barb. 232 [Gen. T. 1848].)
INSANITY OF REFEREE.] In a case where, on the day the referee signed
his report he was adjudged a lunatic in a proceeding in the Supreme Court,
it was held that judgment on his decision should be set aside. (Schoenberg &
Co. V. City Trust, etc., Co., 52 Misc. Rep. 104.)
FIRST DISTRICT — Procedure in the first district as to the filing of
reports, except on reference of the issues. All reports must be filed, and a
note of the day of filing .be made by the clerk. In all cases where any of the
defendants appear so as to be entitled to notice, such report cannot be eon-
firmed until eight days after service of notice of the filing of the same. AU
parties who have appeared in the cause or proceeding may consent in writing
184 CouETs OF Recokd. [Eule 31
I
to waive the delay of eight days, and have the report confirmed at once. In
cases where no one appears for the defendant, the report may be presented
to the court for the final order of confirmation and judgment, without waiting
eight days. (Somers v. Miliken [not reported], Ingeaham, J., Nov. 18.58.)
In the first district a motion to confirm a report, at what Special Term
to be made.]' In the first district a motion to confirm a report made after
the entry of an interlocutory decree, must be made at a Special Term held for
the hearing of enumerated motions, and not at a Special Term and Chambers
held for the hearing of nonenumerated motions. (Empire B. & il. L. A. Assn.
V. Stevens, 8 Hun, 515 [1876].) See, also, Eule 26.
Powers of referee.] Referee appointed in a summary proceeding by a client
to compel attorney to pay over moneys, has no power to hear and determine
the controversy as the court itself must do so. (Matter of Cartier v. Spooner,
118 App. Div. 342.)
Referee appointed to hear and determine has the same power as Special
Term. (Ward v. Bronson, 126 App. Div. 508; Collins v. St. Lawrence Club,
123 id. 207.}
Under provisions of Code of Civil Procedure referee has the same power to
amend pleadings to conform to the proof as that possessed by the court.
(Perkins v. Storrs, 114 App. Div. 322. See, also, Keeler v. Bell, 48 Misc. Rep.
427.)
Power of referee to permit amendment on trial. (McLaughlin v. Webster,
141 N. Y. 77; Bussing v. City of Mt. Vernon, 121 App. Div. 502; Garlock \.
Garlock, 52 Misc. Rep. 647.)
Removal of referee.] A referee will not be removed on account of conduct
in which the complaining party acquiesced. (Teale v. Tilyou, 127 App. Div.
287.)
EUIE 31.
New Trial — Motion for — Where to be Made — Case or Exceptions, When
Made.
When an order grants or refuses a new trial, except on the
exceptions taken during the trial, it shall specify the grounds
upon which the motion was made and the ground or gTounds upon
which it was granted. In all actions where either party is
entitled to have an issue or issues of fact settled for trial by a
jury, either as a matter of right or by leave of the court, if either
party desires such a trial, the party must within twenty days
after issue joined, give notice of motion that all the issues or
one or more specific issues be so tried. If such motion is not
made within such time, the right to a trial by jury is waived.
With the notice of motion shall be served a copy of the questions
of fact proposed to be submitted to the jury for trial, in proper
form to be incorporated in the order; and the court or judge
Eule 31] General Rules of Practice. 185
may settle the issues, or may refer it to a referee to settle them.
Such issues must be settled in the form prescribed in sections 823
and 970 of the Code of Civil Procedure.
When any specific question of fact involved in an action or any
question of fact not put in issue, is ordered to be tried by a jury,
as a substitute for a feigned issue, and has been tried, or a
reference other than of the whole issue has been ordered under
the Code, and a trial had, if either party shall desire to apply
for a new trial, on the ground of any error of the judge or referee,
or on the ground that the verdict or report is against evidence
(except when the judge directs such motion to be made upon his
minutes at the same term of the court at which the issues are
tried), a case or exceptions shall be made, or a case containing-
exceptions, as may be required ; which case or exceptions must be
served and settled in the manner prescribed by the rules of court
for the settlement of cases and exceptions in other cases. Such
motions shall be made, in the first instance, at Special Term.
Rule 33 of 18o8. Eule 40 of 1871. Rule 40 of 1874, amended. Rule
31 of 1877, amended. Rule 31 of 1880. Rule 31 of 1884, amended. Rule
31 of 1888. Rule 31 of 1896. Rule 31 ^aa amended, 1910.
CODE OF CIVIL PEOCEDURE.
§ 823. Feigned issues abolished, and order for trial substituted.
§ 968. What issues of fact are triable by a, jury.
§ 969. In what actions issues are triable by the court,
§ 970. Order for trial by jury of specific questions of fact — when of right.
§ 971. When discretionary.
§ 972. Trial of the remaining issues of fact by the court.
§§ 1002, 1003. Motion for a new trial where there has ibeen a trial of specific
questions by a jury.
§ 1004. Motion, where and upon what made.
§ 1O05. Final judgment, etc., not stayed by a motion for a new trial.
§ 1006. An exception taken on the trial does not prejudice a motion for a
new trial.
§ 1014. Proceedings on a reference for a trial of a part of the issues.
§ 1753. Action to annul marriage — settlement of issues.
§ 1757. Divorce — settlement of issues, where answer denies the allegation of
adultery — mode of trial.
§ 1778. Corporation, when obliged to serve, with its answer or demurrer, a
copy of an order directing that the issues be tried.
§ 1950. Order settling issues — unnecessary in an action for usurping an
o£5ce or franchise.
186 OouETs OF Eecoed. [Rule 31
§ 1958. Id.; in an action to vacate letters-patent.
§ 2168. Issues to be settled before trial, on opposition to insolvent's discharge,
when. See Debtor and Creditor Law, § 69.
§■' 2193. Issues to be settled, for trial on opposition to insolvent's petition for
eixemption, etc., from imprisonment. See Debtor and Creditor
Law, § 105.
FEIGNED ISSUES — To what case Rule 31. is applicable.] Rule 31 of the
General Rules of Practice providing that " in cases where the trial of issues of
fact is not provided for by the Code, if either party shall desire a trial by jury,
such party shall, within ten days after issue joined, give notice of special
motion," etc., does not apply to a motion for the trial of issues as to value or
damages. (Eggers v. Manhattan Co., 27 Abb. N. C. 463 [N. Y. Supr. Ct.
1891].)
Former practice — not changed by the Code.] The Code has not
changed the former practice in respect to feigned issues, except so far as to
substitute a simple interrogatory for the legal fiction of a wager. (Brinkley
V. Brinkley, 2 T. & C. 501 [Gen. T. 1874]; S. C. on appeal, 56 N. Y. 192
[1874].)
Submission of specific questions, the findings are not conclusive on the
court.] Where an order for a trial by jury of speeiiic questions of fact in
an equity action is made, the findings have no greater force or effect than the
findings in the old procedure by feigned issue, for which this is a substitute.
The findings of the jury are ancillary to the judgment of the court, and the
trial of the issue is by the latter. {Vermilyea v. Palmer, 52 N. Y. 471 [1873] ;
Brinkley v. Brinkley, 2 T. & C. 501; Randall v. Randall, 114 N. Y. 499
[18S9] ; McClave v. Gibb, 157 id. 413 [1898].)
Conclusive, unless a new trial is moved for.] The decision upon issues
framed and settled is conclusive unless a new trial is moved for. (Chapin v.
Thompson, 23 Hun, 12 [1880].)
Jury trial in equity cases — how secured on a counterclaim,] In an
action for equitable relief triable by the court, if the answer sets up a counter-
claim founded on a cause of action at law, and the party desires a jury trial
of the issues on the counterclaim, he must, within ten days after the joining
of issue on the counterclaim proceed under Rule 31 of the General Rules of
Practice to give notice of a special motion on the pleadings that the issues on
any specific questions of fact i>e tried by a jury. (Mackellar v. Rogers, 9 Civ.
Proe. R. 6 [N. Y. Supr. Ct. Gen. T. 1885].)
Equity actions not covered by Code of Civil Procedure, § 970.] The
provision of the Code of Civil Procedure (§ 970), as amended in 1891 (chap.
208, Laws of 1891), declaring that "where a party is entitled by the Constitu-
tion or express provision of law to a trial by jury of one or more issues of fact,
or where one or more questions arise on the pleadings as to the value of prop-
erty, or as to the damages which a party may be entitled to recover, either
party may apply on notice at any time to the court for an order directing all
such issues or questions to be distinctly and plainly stated for trial accord-
ingly," and requiring the court on such application to cause such issues or
Eule 31] General Rules of Peactice. 187
questions to be so stated, does not apply to actions of a purely equitable
nature, but merely widens the right to a jury trial in those cases to which said
section was previously applicable. (Sheppard v. M. E,. Co., 131 N. Y. 215
[1892].)
Equity action to set aside a deed — second motion for a new trial.]
Where, in an action in equity to set aside a deed, the court denied the defend-
ant's motion for a new trial on the minutes, certain issues having been sub-
mitted to a jury, the defendant is not precluded from again moving for a new
trial upon a case and exceptions, when the application is made at a Speciil
Term for final judgment. (Anderson v. Carter, 24 App. Div. 462 [1897].)
Settlement of issues.] The court may submit to a jury additional
issues arising upon the proofs and material to the final determination. ( Farm-
e-s & Mechanics' Bank v. Joslyn, 37 N. Y. 353 [1867].)
Motion, when not premature.] Simply because the trial of such issues
may not be necessary on account of the detei-mination of the matter in dispute
in other respects such motion is not premature if made after issue joined.
(Eggers V. Manliattan Co., 27 Abb. N. C. 463 [N. Y. Supr. Ct. 1891].)
Motion for jury trial, must be made within the prescribed time.]
A motion to frame issues for trial by a jury, will be denied, if not made within
the time prescribed by Rule of Practice 31, unless some special reasons for
framing issues exist. (N. Y. Life Ins. & Trust Co. v. Ines, 41 N. Y. Supp.
225 [1896].)
Power of the court to order issues to be settled although more than ten
days have elapsed since they have been joined.] In this action, brought to
foreclose two mortgages, a judgment of the County Court was entered, sus-
taining the defense of usury to one and rejecting it as to the other. The
General Term reversed so much of the judgment as was in favor of the
plaintiff and granted a new trial. Thereupon the County Court, upon the
motion of the plaintiff, granted an order to settle the issues as to this mort-
gage, for trial by a jury. Held, that the court had power so to do, although
more than ten days had elapsed since the issues had been joined in the action.
(Apel V. O'Connor, 39 Hun, 482 [18S6].)
When application for, granted.] In a proper case, the court will direct
the issues to be tried by a jury, even though the application is not made
within ten days after issue joined. (Clark v. Brooks, 26 How. Prae. 285
[Sp. T. 1864].)
May be directed after the case has been submitted.] After an equity
case has been tried and finally submitted for decision, the court, at Special
Term, has the power, of its own motion, to direct certain issues therein to be
passed upon by a jury, if the case be one in which, under similar circumstancen,
the late Court of Chancery was authorized to direct a feigned issue. ( Brinkley
V. Brinkley, 2 N. Y. Sup. Ct. Rep. 501 [Gen. T. 1874]; contra, O'Brien v.
Bowes, 4 Bosw. 657 [Gen. T. I860]; S. C, 10 Abb. 106.)
Power not affected by Code of Procedure, § 267.] The power to direct
trial of feigned issues is not restricted or affected by the provisions requiring
the judge to make and file his decision within a specified time. This provision
188 CoDETS OF Ebcoed. [Rule 31
is necessarily with the implied qualification that no other disposition is made
cf the case. (Brinkley v. Brinkley, 56 K Y. 192 [1874].)
When application for, not granted.] Where an application for a jury
trial of issues is made by a party not entitled thereto as of right. Rule 31,
providing for ten days' notice after the joinder of issue, is applicable, and it
is improper to grant such application upon behalf of a party in default, where
no reason is given why the application was not made within ten days after
joinder of issue. (EUensohn v. Keyes, 6 App. Div. 601 [1896].)
Wot after trial.] But not after the trial has commenced. (People v.
Albany & Susquehanna R. E. Co., 1 Lans. 308 [Sp. T. 1869]; S. C, 55 Barb.
344; 7 Abb. [N. S.] 265; 38 How. Pr. 228.)
Provisions of section 970, Code of Civil Procedure, do not apply to an action
for divorce. (Haff v. Haff, 64 Misc. Rep. 122; Wilcox v. Wilcox, 116 App. Div.
421.)
Court has no authority to entertain application for new trial on the ground
of newly discovered evidence until a case and exceptions have been made and
settled. (Soloman v. Alexander, 128 App. Div. 441.)
Issues as to the terms of a partnership — should not be framed until
after the accounting.] Issues should not be framed until after an accounting
in a case in which a partnership is admitted to have existed, when its terms
are in dispute. (Johnson v. Arnold, 1 Law Bulletin, 53 [N. Y. Supr. Ci.
Sp. T. 1879].)
Motion to set aside a judgment — when feigned issue not to be
directed.] A feigned issue should not be directed upon a motion to set aside
the judgment where the notice of motion merely asks (in addition to the
principal motion) for such further or other relief as the court may grant.
(Mann v. Savage, 7 How. Prac. 449 [Sp. T. 1853].)
Notice of trial at Special Term — not a waiver.] The service of a
notice of trial for Special Term does not waive the right to move for awarding
of issues as to value or damages as conferred by section 970 of the Code, as
amended by the Laws of 1891, chapter 208. (Underbill v. Manhattan Ey.
Co., 27 Abb. N. C. 478 [Supr. Ct. 1891].)
FORM OF ORDER — As to the proper form of order of reference to settle
issues of fact, preparatory to taking testimony.] (See Miller v. Wilson,
1 Barb. 222 [Sp. T. 1847].)
REVIEW — A refusal to settle issues is not appealable to the Court of
Appeals — proper remedy.] A refusal to grant an order settling issues, in
an action for equitable relief, to be tried by a jury, does not necessarily
deprive the defendant of his right to such trial. If he has that right and the
cause is brought to trial before the court, without a jury, he may then object,
and it will be the duty of the court to order the cause to be tried before a
jury. If the court refuses to do so, the remedy of the party aggrieved is by
appeal from the judgment. An appeal Avill not lie to the Court of Appeals
from the order denying a motion to settle the issues. (Colman v. Dixon, 50
N. Y. 572 [1872]; Hudson v. Caryl, 44 id. 563 [1871]; Davis v. Morris, 36
id. 569 [1867]; Kinne v. Kinne, 2 N. Y. Sup. Ct. Rep. 393 [Gen. T. 1873].)
Eule 31] General Rules of Practice. 189
An order granting trial of feigned issue is discretionary.] A motion
made in chancery for an issue to be awardedi for trial by a jury, is addressed
to the discretion of that court, and the order made upon the motion is, tliere-
fore, not appealable to the Court of Appeals. (Candee v. Lord, 2 N. Y. 269
[1848].)
An order setting aside issues and directing others to be settled, is dis-
cretionary.] An order- setting aside issues already tried, and directing that
other issues be settled by a referee and be tried, is discretionary, and not
appealable to the Court of Appeals. (Colie v. Tifft, 47 N. Y. 119 [1871];
Bennett v. Stevenson, 53 id. 508 [1873].)
The manner of trial in equity cases rests in the discretion of the court.]
Where an action is brought in equity, and the demand is for purely equitable
relief, the trial of questions of fact by the court is in its discretion. (Rexford
V. Marquis, 7 Lans. 249 [Gen. T. 1872] ; Ivnickerbooker Life Ins. Co. v. Nelson,
8 Hun, 21 [1876].)
Equity cases — framing issues discretionary — not ordered simply to
avoid conflict of evidence.] The framing of issues for the jury in a purely
equitable action is a matter entirely in the discretion of the court, and will
not be ordered merely because the trial will probably involve a conflict of evi-
dence. (Cantoni v. Forster, 12 Misc. Rep. 343 [1895].)
Denial of motion for new trial of special issues is not appealable.]
An order made by a judge at the Circuit, refusing a new trial upon his min-
utes, in the case of a trial of special issues in an equity action, is not appeal-
able. The defeated party must wait until after the trial of the action at
Special Term, or at least until after a motion at Special Term for a new trial.
(Hatch v. Peugnet, 64 Barb. 189 [Gen. T. 1872 J.)
An order directing the trial of issues is.] An order directing that
issues be framed is appealable. (Ellensohn v. Keyes, 6 App. Div. 601 [1896].)
Motion for a new trial necessary.] Where, in an action brought to
foreclose a mortgage, issues of fact are framed and, in pursuance of an order
to that effect, tried by a jury, a motion for a new trial on a case and excep-
tions founded upon irregularities committed on the trial by the jury must be
made before the entry of judgment in the action, otherwise the finding of the
jury will be deemed to have been acquiesced in, and questions of fact involved
therein cannot be reviewed on an appeal from the judgment. (Chapin v.
Thompson, 23 Hun, 12 [1880]. See, also, Ulbricht v. Ulbricht, 89 Hun, 479
[1895].)
Defendant not obliged to move to frame issues in a divorce action.]
The right of a defendant in an action for an absolute divorce to have the issue
of fact tried by a jury is an absolute one, of which she can only be deprived in
the manner prescribed by the Code; she is not bound to move for the framing
of issues; that is the duty of plaintiff, and the defendant's failure so to move
affords no ground for vacating an order for alimony. (Ulbricht v. Ulbricht,
89 Hun, 479 [1895].)
JURY TRIAL — The right of trial by jury is determined by the court, not
by the parties.] The court, not the parties, determines whether an issue
shall be tried by a jury. (Knickerbocker Life Ins. Co. v. Nelson, 8 Hun, 21
[1876]. See Penn. Coal Co. v. Del. & Hud. Canal Co., 1 Keyes, 72 [1863].)
190 Courts of Eecoed. [Eule 31
Jury trial, when.] When a party is entitled to jury trial. (Lefrois v.
County of Monroe, 88 Hun, 109 [1895]; Pegran v. N. Y. Elevated R. R. Co.,
147 N. Y. 135 [1895]; Johnson v. Alexander, 23 App. Div. 538 [1897]; Herb v.
Metropolitan Hospital, 80 id. 145 [1903].)
Right of jury trial is waived wlien plaintiff chooses his forum, serves
notice of trial and fails to move to frame issues within the time limited.
(Ettlinger v. Trustees of Sailora' Snug Harbor, 122 App. Div. 681.)
'As to what issues should be tried by the court and what by a jury.
(See Bush v. Bush, 103 App. Div. 588.)
When a party is not entitled to jury trial.] (Hart v. Brooklyn Ele-
vated R. R. Co., 89 Hun, 82 [1805]; Goldschmidt v. N. Y. Steam Co., 7 App.
Div. 317 [1896]; Laufer v. Sayles, 5 id. 582 [1890]; EUensohn v. Keyes, 6 id.
601 [18.96]; Schillinger Fireproof Cement Co. v. Arnott, 152 N. Y. 584 [1897].)
When the right to a jury trial must be demanded — laches.] A party
desiring to avail himself of the right to a trial by jury must make hia demand
before trial and not wait until after the case has been opened and a motion
made to dismiss the complaint. (Marshall v. De Cordova, 26 App. Div. 615
[1898].)
Equitable action — issue of damages — when triable by a jury.] It
seems that in an equitable action, if the defendant apply therefor, the court
may direct that the issue as to the amount of damages involved be tried by a
jury. (Brooklyn Elevated R. R. Co. v. Brooklyn, Bath & West End R. R. Co.,
23 App. Div. 29 [1897].)
Jury trial where equitable relief is sought in an action for a nuisance —
order granting new trial appealable.] Where in an action to abate a nuisance
and for damages the complaint asks for equitable relief, the defendant is enti-
tled to have the issues of fact tried by a jury under section 970 of the Code
of Civil Procedure, and an order granting plaintiff a new trial is appealable.
(Lefrois v. County of Monroe, 88 Hun, 109 [1895].)
Action growing out of equitable doctrine of subrogation, triable at Trial
Term.] Where an insurance company subrogated to the rights of insured
sues for negligence causing the loss, the action is at law for negligence, though
growing out of the equitable doctrine of subrogation, and hence properly triable
at the Trial Term. (German Am. Ins. Co. v. Standard Gas Light Co., 67 App.
Div. 539; 73 N. Y. Supp. [107 St. Rep.] 973.)
If a case embraces both legal and equitable claims, the whole case must
go to the jury.] If the pleadings show both legal and equitable claims, the
whole case must go to the jury. (People v. Albany & Susq. R. R. Co., 5 Lans.
25 [Gen. T. 1871]; affd., 57 N. Y. 161; Davis v. Morris, 36 id. 509 [1867].
See Loomis v. Decker, 4 App. Div. 409 [1896].)
Action for both legal and equitable relief.] In a case in which both
legal and equitable relief is demanded the plaintiff, by election, may submit to
have the issues tried by the court and thereby waives his right to a jury trial.
(Loomis V. Decker, 4 App. Div. 409 [1896].)
In what case defendant is not entitled to have issues framed and tried
at law.] Where a defense of usury and fraud is interposed in an action for
foreclosure and to recover any deficiency, the defendant cannot claim as a mat-
Rule 31] General Rules of Pkactioe. 191
ter of right to have the issues, framed and tried at law. (Knickerbocker Life
Ins. Co. V. Nelson, 8 Hun, 21 [1876].)
Action to foreclose a mechanic's lien.J An action to foreclose a
mechanic's lien is triable by the court alone, even though, by stipulation, the
personal responsibility of the contractors is substituted for a lien on the real
property. The remedy of a party thereto desiring a jury trial is to apply to
the court to frame issues under section 823 of the Code of Civil Procedure.
(Schillinger, etc.. Cement Co. v. Arnott, 152 N. Y. 584 [1897].)
Past damages done by an elevated railroad.] Where plaintiff brings an
actiou for past damages, resulting from the operation of an elevated railway,
and to restrain its further operation in front of his premises, the question of
past damages must be brought before a jury upon application of defendant,
section 970 of the Code as amended being applicable to such cases. (Eggers v.
Manhattan Ry. Co., 27 Abb. N. C. 463 [N. Y. Supr. Ct. 1891].)
A party not entitled to equitable relief may have a trial at law.]
A party failing to make out a case for purely equitable relief is still entitled
to a trial by jury of his legal cause of action. (Black v. White, 37 N. Y.
Supr. Ct. 320 [Gen. T. 1874]; Sternberger v. McGovern, 56 N. Y. 12 [1874];
Genet v. Howland, 30 How. Prac. 361 [Sp. T. 1866] ; Lewis v. Varnum, 12 Abb.
305 [N. Y. Com. PI. Gen. T. 1861].)
Waiver of a jury trial.] The failure to demand a juiy trial in an action
for an injunction and damages amounts to a waiver of the right thereto.
(Hartman v. Manhattan Ry. Co., 82 Hun, 531 [1894].)
POWER OF THE COURT OVER THE VERDICT — Not a trial of tho
issue.] Where a specific question of fact is to be tried by a jury, it is not
the trial of the issue. The facts found must be approved by the court before
they can constitute the basis of a judgment. (Vermilyea v. Palmer, 52 N. Y.
471; Randall v. Randall, 114 id. 499 [1889]; McQave v. Gibb, 157 id. 413
[1898]; Brown v. Clifford, 7 Lans. 46 [Gen. T. 1872].)
Motion for a new trial necessary.] Where, in an action brought to
foreclose a mortgage, issues of fact are framed and, in pursuance of an order
to that effect, tried by a jury, a motion for a new trial on a case and exceptions,
founded upon irregularities committed on the trial by the jury, must be made
before the entry of judgment in the action, otherwise the finding of the jury
will be deemed to have been acquiesced in, and questions of fact involved
therein cannot be reviewed on an appeal from the judgment. (Chapin v.
Thompson, 23 Hun, 12 [1880]; 89 N. Y. 270 [1882].)
Motion for new trial — newly-discovered evidence.] A motion for a
new trial upon the ground of newly-discovered evidence, will be denied where
it is apparent that ordinary care and diligence in the preparation of the case
for trial would have enabled the moving party to make the proof which he
seeks to present upon the second trial. (Reid v. Gaedeke, 38 App. Div. 107
[1899]; Farmers' National Bank v. Underwood, 12 App. Div. 269 [1896];
Hagen v. N. Y. C. & H. R. R. Co., 100 id. 218.)
The General Term cannot set aside a verdict, where no application
therefor has been made below.] Where, in an equity action, specific questions
of fact are ordered to be tried by a jury, and its verdict is produced and used
19^ CouETs OF Eecobd. [Kule 31
on the trial of the action, no application having been made to set it aside, the
General Term cannot, on appeal, set it aside and order a new trial. (Jackson
V. Andrews, 59 N. Y. 244 [1874].)
Acquiescence presumed, in case a motion is not made for a new trial.]
If the unsuccessful party does not move for a new trial, he will be deemed
to have acquiesced in the verdict on the issue tried. (Ward v. Warren, 15
Hun, 600 [1878].)
Conditions imposed on granting a new trial — a mere tender of per-
formance is insufficient.] The condition of an order for a new trial, requiring
the payment of costs and delivery of an undertaking, is not complied wi|h by
a mere tender of the costs and undertaking which the other party refuses to
accept on the ground that he intends to appeal from the order, but to make
the order effectual after affirmance there must be an actual payment of the
costs and delivery of the undertaking. (Stokes v. Stokes, 38 App. Div. 215
[1899].)
Full costs are allowed where a motion for a new trial is made on a
case. (Reid v. Gaedeke, 38 App. Div. 107 [1899].)
Dismissal of complaint — not proper on the trial of issues, settled,]
Upon the trial before a jury of issues settled in an equity action, the com-
plaint cannot be dismissed as to one or all the defendants. A verdict upon all
the issues as to all the parties must be rendered, and the cause afterward
heard by the court. (Moore v. Metropolitan Nat. Bank, 55 K. Y. 41 [1873];
Birdsall v. Patterson, 51 id. 43; MacNaughton v. Osgood, 114 id. 574 [1889].)
Motion for new trial — upon what terms granted.] (Smith v. City of
New York, 55 App. Div. 90 [1900]; Larsen v. U. S. Mortgage & Trust Co.,
104 id. 76.)
Improper statement of counsel to jury — ground for new triaL] Where
statements to a jury made by a counsel tend to mislead the j\iry and to
awaken their prejudices and arouse their passions and such statements receive
the sanction of 13ie court, a new trial is properly granted. (Kinne v. Int.
Railway Co., 100 App. Div. 5.)
New trial for inconsistencies in referee's report. (Cohen v. Wittemann,
100 App. Div. 338.)
Error in rulings on the trial of feigned issues where the verdict is made
the basis of the judgment — effect of.] Where erroneous rulings have been
made in a case in which issues have been framed for trial by a jury, and the
verdict, in part influenced by them, has been made the basis of a final recovery,
a new trial should be ordered, despite the provisions of section 1003 of the
Code of Civil Procedure, declaring that an '" error in the admission or exclusion
of evidence, or in any other ruling or direction of the judge upon the trial, may,
in the discretion of the court which reviews it, be disregarded if that court
is of opinion that substantial justice does not require that a new trial should
be granted." (Bowen v. Beeht, 35 Hun, 434 [Gen. T. 1885J.)
When the judgment in such case will be set aside.] Where such erro-
neous rulings have been made by the justice presiding at the trial before the
jury of the specific questions referred to them, and it appears from the decision
of the justice before whom the issues in the action were tried at Special
Rule 32] General Etjles of Pkactice. 193
Term, and from the judgniont entered thereon, that the findings of the jury
upon the questions submitted to it were considered by him in arriving at his
decision, the judgment will be reversed. {lb.)
A motion must be made before commencement of hearing directed by
interlocutory judgment.] A motion for a new trial for the purpose of review-
ing an interlocutory judgment, must be made before the commencement of the
hearing directed by the said judgment. (Greene v. Roworth, 6 Misc. Rep. 130
[N. Y. Com. PL 1893].)
New trial granted on wrong reason.] An order granting a new trial
will not be set aside because a wrong reason was given for granting it. (Ross
v. Met. S. R. Co., 104 App. Div. 378.)
Third trial.] Verdict against the weight of evidence not sustained
because of third trial. (Meinvenken v. N. Y. C. & H. R. R. Co., 103 App.
Div. 319.)
PARTITION — Action brought under chapter 238 of 1853 — issues settled.!
In an action for partition brought by an heir under the provisions of chap.
238 of the Laws of 1853 (see Code of ttvil Procedure, §§ 1537, 1806, relative
to disputed wills), the court, at Special Term, has authority to direct issues
of fact to be settled, and that the verdict of the jury thereon be certified
to the Special Term for further proceedings. It is within the discretion of the
court whether the case shall be so disposed of or shall be placed upon the
Circuit calendar for the court to submit to the jury such questions of fact as
are presented by the pleadings; and the exercise of this discretion is not
reviewable. (Hewlett v. Wood, 62 N. Y. 75 [187&]; Weston v. Stoddard, 137
N. Y. 119 [1893].)
DIVORCE — See notes under Rule 72.
ETJIE 32.
Making and Settling Cases, Exceptions, etc. — Amendments — Settlement of
by the Justice — Extensions of Time to be on Notice.
Whenever it shall be necessary to make a case, or a case and
exceptions, or a case containing exceptions, the same shall be
made, and a copy thereof served on the opposite party within the
following times:
If the trial was before the court or referee, including trials by a
jury of one or more specific questions of fact in an action triable
by the court, within thirty days after service of a copy of the
decision or report and of written notice of the entry of the judg-
ment thereon.
In the Surrogate's Court, within thirty days after service of a
copy of the decree or order and notice of the entry thereof.
If the trial were before a jury, within thirty days after notice
of the decision of a motion for a new trial, if such motion be made
13
194 CoTJETs OF Kbcoed. [Rule 32
and be not decided at the time of the trial, or within thirty days
after service of a copy of the judgment and notice of its entry.
The party served may, v?ithin ten days thereafter, propose
amendments thereto, and serve a copy on the party proposing a
case or exceptions, who may then, within four days thereafter,
serve the opposite party with a notice that the case or exceptions
with the proposed amendments will be submitted for settlement
at a time and place to be specified in the notice, to the judge or
referee before whom the cause was tried.
Whenever amendments are proposed to a case or exceptions, the
party proposing such case or exceptions shall, before submitting
the same to the judge or referee for settlement, mark iipon the
several amendments his allowance or disallowance thereof, and
shall also plainly mark thereon and upon the stenographer's min-
utes the parts to which the proposed amendments are applicable,
together with the number of the amendment. If the party pro-
posing the amendments claims that the case should be made to
conform to the minutes of the stenographer he must refer at the
end of each amendment to the proper page of such minutes. The
judge or referee shall thereupon correct and settle the case.
The time for settling the case must be specified in the notice, and
it shall not be less than four nor more than ten days after the
service of such notice. The lines of the case shall be so numbered
that each copy shall correspond. The surrogate, on appeal from
his court, may by order allow further time for the doing of any of
the acts above provided to be done on such appeals.
Cases reserved for argument and special verdicts shall be settled
in the same manner. The parties may agree on the facts proven to
be inserted in the case, instead of the testimony, on the approval
of the judge.
No order extending the time to serve a case, or a case containing
exceptions, or the time within which amendments thereto may be
served, shall be made \inless the party applying for siich order
serve a notice of two days upon the adverse parties of his inten-
tion to apply therefor, stating the time and place for making such
application.
Rule 34 of 1858, amended. Rule 41 of 1871, amended. Rule 41 of
1874, amended. Rule 32 of 1877, amended. Part of fifth paragraph from
Rule 34 of 1877, added. Rule 32 of 1880. Rule 32 of 1884. Rule 32 of
1888, amended. Rule 32 of 1896, amended.
Eule 32] Geneeal Rules of Peactice. 195
CODE OF CIVIL PROCEDURE.
§ 25. Settlement of case by judge out of office allowed.
§ 992. What rulings may be excepted to.
§ 994. Exceptions after the close of the trial to the findings of laVT.
§ 995. Exceptions during trial — how made and how noted.
§ 996. Exceptions to rulings — how reviewed.
§ 997. Case on appeal or on motion for a new trial, when necessary — how
made and settled.
§ 998. Motion for new trial on minutes, or for irregularity or surprise, or
on appeals where reliance is only upon exceptions taken — case
not necessary.
§ 999. Motion for new trial on minutes — appeal from order thereon — case
necessary on.
§ 1000. Exceptions on jury trial, ordered to be heard at Appellate Division
in first instance.
§ 1001. Motion for new trial at Appellate Division when trial was by court
or referee — exceptions, within what time to be taken.
§ 1002. When motion for new trial to be made at Special Term.
§ 1003. Review of trials of specific questions by a jury.
§ 10O4. Motion for new hearing after trial of specific questions by a referee
— case, when necessary.
§ 1005. Final, judgment not stayed by motion for a new trial'.
§ 1006. When exceptions not to prejudice a motion for a -new trial.
§ 1007. Notes of stenographer may be treated as minutes.
§ 1010. Trial by the court — within what time the decision should be filed.
§§ 1021, 1022. Decision — what to contain.
§ 1180. Exceptions to decision on challenge to jury.
§ 1279. Case on submission of controversy without action.
§ 1315. What papers are to be transmitted to the appellate court.
§ 1339. Case on appeal from judgment of Appellate Division rendered on a
verdict taken subject to the opinion of the court — statement of
facts.
§ 1353. Upon what papers an appeal will be heard.
§ 2545. Settlement of ease on appeal from a Surrogate's Court.
§ 2576. When case to be made and settled on appeal from Surrogate's Court.
§ 3251. Amount of costs for making and serving case and amendments.
FINDINGS — Court may still make findings.] Notwithstanding the repeal
of section 1023 of the Code of Civil Procedure and the amendment of sec-
tion 1022 tliereof, the court upon trial of an action may still state separately
the findings of fact and conclusions of law and direct the judgment to be
entered thereon. (Walrath v. Abbott, 85 Hun, 181 [1895].)
Requests to find no longer authorized.] The right of a party to an
action to have a referee pass upon his proposed finding was not saved from
the operation of the Repealing Act (section 1, chap. 688, Laws of 1894) by
196 CouETs OF Eecoed. [Piule 32
the provisions of section 31, cliap. 677 of the Laws of 1892. (Lazarus v.
Metropolitan Elevated E. Co., 145 N. Y. 581 [1895].)
Upon whom findings of fact are binding.] Where the respondents do
not appeal, they are bound by the findings of fact made by the trial court,
■while the appellants are bound by all to which they do not except, and after
affirmance by the General Term, by all, even of those excepted to, that find
any reasonable support in the evidence. (Cox v. Stokes, 150 N, Y. 491
[1898].)
Trial by the court.] Findings of fact and conclusions of law must be
made and signed, and a trial of a contested question of fact by the court can-
not be reviewed unless such a decision be made. (Benjamin v. Allen, 35 Hun,
115 [1885].)
Facts not found and not asked for, not ground for reversal.] Facts
not found by a referee, and as to which no finding was requested, may not be
considered for the purpose of reversing a judgment. (Burnap v. Xational
Bank of Potsdam, 96 N. Y. 125 [1884]; Palmer v. C. H. Cemetery, 122 id.
429 [1890].)
Negative facts.] A referee is not required to find facta of a purely
negative character. (McAndxew v. Whitlock, 2 Sweeny, 632 [Gen. T. 1870].)
Evidence and argument improper.] ISTeither evidence, argument nor
comment has any legitimate •place in findings of fact or law. ( Glacius v.
Black, 50 N. Y. 147 [1872].)
Findings where a judgment is rendered on the pleadings.] Where a
judgment is rendered on the pleadings, no findings of fact are required.
(Eaton V. Wells, 82 N. Y. 576 [1880].)
Where the complaint is admitted to be true.] Where the court tries
a case under an admission that the allegations of the complaint are true and
no evidence is given by either party, the findings should follow "the statements
of the complaint. (Brown v. Stciger, 21 Hun, 219 [1880].)
Additional findings — cannot be made on the settlement of a case.]
A judge or referee cannot make additional findings of fact or law upon the
settlement of the case, and after his report or decision has been filed. (Palmer
V. Phffinix Ins. Co., 22 Hun, 224 [1880]; G'ormerly v. JlcGlynn, 84 N. Y. 284
[1881].)
Ambiguous findings construed to sustain the judgment.] If the find-
ings of the trial court are capable of two constructions, and the evidence is
not contained in the case, the appellate court will adopt the construction which
will sustain the judgment. (Drake v. Village of Port Richmond, 1 App. Div.
243 [1896].)
Difference between opinion and findings.] The fact that the opinion
filed by a justice before whom an action was tried, and the findings signed by
him do not coincide, in no way forms a ground tor the reversal of a judgment,
inasmuch as the opinion cannot be referred to for the purpose of showing the
incorrectness of the findings upon which the judgment is based. (Tannen-
baum v. Armeny, 81 Hun, 581 [1894].)
Inconsistent ruling.] The attorney claiming inconsistent rulings can-
not avail himself of the referee's findings upon respondent's objections and
''Eiile 32] Geneeal Rules of Practice. 197
exceptions appearing in the case on appeal from which they should have been
omitted. (Clark v. House, 40 St. Eep. 956 [Sup. Ct. 1891]. See, also, Mason
Stable Co. v. Lewis, 16 Misc. Rep. 359 [Sup. Ct. App. T. 1896].)
To reverse conclusions of law, the facts found must be inconsistent
with them.] To reverse the conclusions of law of a referee, it must appear
from the facts found that they are erroneous. (Collender v. Phelan, 79 N. Y.
366 [1880].)
Inconsistent findings to be reconciled.] Where the findings of a trial
court are appa.rently inconsistent, it is the duty of the appellate court, if
possible, to reconcile them and give effect to the real meaning and intent of
the court in making them. (Health Department v. Purdon, 99 N. Y. %?,',
[1885].)
It is the duty of the appellate court to harmonize them.] It is the
duty of the Court of Appeals to harmonize the findings of a trial court so as
to arrive at the real intention, if it can be done; and an intention to reverse
a deliberate finding will not be imputed because of collateral findings in whicli
an inadvertent or immaterial expression is used. (Bennett v. Bates, 94 N. Y.
354 [1884].)
Right of the defeated party where the findings are conflicting.] Where
a referee's findings of fact are conflicting the defeated party is entitled to
th^se which are most favorable to his side of the case. (Bonnell v. Griswold,
89 N. Y. 122 [1882] ; Kelly v. Leggett, 122 id. 633 [1890] ; Israel v. Manhattan
R. Co., 158 id. 624 [1899].)
Irreconcilable findings construed in favor of the appellant.] Where
inconsistent findings are irreconcilable the Court of Appeals must accept ;is
true those most favorable to the appellant's contention. (Parsons v. Parker,
159 N. Y. 16 [1899].)
Insufficiency of finding.] The insufiiciency of the finding is not of
itself a ground for the reversal of the judgment. (Van Slj'ke v. Hyatt, 46
N. Y. 263 [1871].)
Rule as to reviewing facts.] While a review of the facts by an
appellate tribunal is proper, it is under no obligation to arbitrarily adopt the
conclusions of the trial court, yet great consideration should be accorded to its
opinions, especially where there is evidence upon both sides, and the mind of
the court is called upon to weigh conflicting statements and inferences and
to decide upon the credibility of opposing witnesses. (McNaney v. Hall, 86
Hun, 415 [1895]; Hewlett v. Saratoga Carlsbad Spring Co., 84 id. 248 [1895].)
Looking to evidence to sustain findings.] Where the court at General
Term has all the facts before it, all the evidence being contained in the appenl
book, support for the conclusions of law may be sought upon the evidence,
unless the trial court or referee has by an express finding or ruling concluded
questions essential to the judgment against the respondent. (Page v. Metro-
politan Elevated Railway Co., 10 Misc. Rep. 134 [1895].)
Conflicting evidence, findings not disturbed.] Where the evidence is
conflicting, the findings m'ade by the trial court will not be disturbed. ( Stiles
V. Benjamin, 92 Hun, 102 [1895]; Requa v. Requa, 16 App. Div. 629 [1897].
See, also, Kane v. Kane, 13 id. 544 [1897]; Fuller v. Tolman, 92 Hun, 119
[1895].)
198 CouETs OF Recoed, [Rule 32
The decision of a referee who sees the witness, made upon conflicting
evidence, should be sustained. (Solomon v. Continental Fire Ins. Co., 28
App. Div. 213 [1898].)
Findings of court sustained by evidence — not reversible on facts by the
Appellate Division.] Where the findings of the trial court were in accordance
with the conceded facts, or the uncontroverted testimony, the Appellate
Division is not authorized to reverse upon the facts; if it does, a question of
law is presented which the Court of Appeals may properly review. (Benedict
V. Arnoux, 154 N. Y. 715 [1898].)
Reviewing findings.] Tlie findings of a referee on questions of fact
should not be disturbed unless it appears that the proof so clearly pre-
ponderates in favor of a contrary conclusion that it can be said with reason-
able certainty that the referee erred in his conclusions. (Sayles v. DeGraff,
82 Hun, 73 [1894]; Eingle v. The Wallis Iron Works, 86 id. 153 [1894].)
Reviewing verdict.] An appellate court will not set aside the verdict
of a jury rendered upon conflicting evidence, on the ground that improper
testimony was admitted, unless it appears that the result would have
been difi^'erent had the testimony objected to been omitted. (Van Epps v.
Harnes, 88 Hun, 229 [1895].)
Filing exceptions to findings not necessary where there is a certificate.]
Where there is a certificate that the case contains all the evidence, it is not
necessary on appeal to the Appellate Division that appellant file exceptions to
the findings of fact. (Watts v. Bd. of Education, 9 App. Div. 143 [1896].)
In Court of Appeals.] While the determination of the General Term
upon all questions as to the weight of evidence is final and not reviewable in
the Court of Appeals, where there is no conflict in the evidence, or that which
appears to be in conflict is but a mere scintilla, or is met by well-known and
scientific facts about which there is no conflict, the Court of Appeals may
review the decision, if contrary to the evidence, and reverse it. (Hudson v.
Rome, Watertown & Ogdensburg R. R. Co., 145 N. Y. 408 [1895].),,
Court of Appeals cannot correct a case which contains an improper
finding of fact. (B. 0. H. Co. v. City of Binghamton, 156 N. Y. 651.)
Findings of fact sustained by evidence, not reviewable in the Court of
Appeals.] The Court of Appeals, when a referee has found facts and his
findings have been afiirmed by the General Term, will not review such findings
if there is any evidence to support them. (I'otter v. Carpenter, 71 N. Y. 74;
Bryce v. Lorillard Fire Ins. Co., 55 id. 242 [1873].)
Question of fact in Court of Appeals — when it cannot be raised.] No
question can be raised in the Court of Appeals upon a matter of fact, in a
case tried by a referee, as to which no facts were found by the referee or
requested to be found. (Stewart v. Morss, 79 N. Y. 629 [1880].)
When on appeal from a Surrogate's Court, the facts will not be
reviewed.] On an appeal from a judgment of the General Term affirming a
decree of the surrogate admitting a will to probate, the Court of Appeals will
not review questions of fact as to which there is conflicting evidence. (Hew-
lett V. Elmer, 103 N, Y. 156 [1886].)
Eule 32] General Eules of Peactice. 199
Fact, when found by the Court of Appeals.] A fact may be supplied
by the Court of Appeals from the evidence to sustain, but for the purpose
of reversing a judgment. (Eq. C. 0. F. Co. v. Hersee, 103 N. Y. 25 [1880];
Everson v. City of Syracuse, 100 id. 577 [1885]; Ostrander v. Hart, 130 id.
406 [1892].)
Appeal on judgment-roll alone.] Where an appeal is heard upon a
judgment-roll alone, the question to be determined by the appellate court is,
whether in any view of the facts found the judgment rendered was properly
ordered. (Kineaid v. Kinoaid, 85 Hun, 141 [1895]; First National Bank of
Syracuse v. N. Y. C. & H. R. R. R. Co., Id. 160 [1895].)
What is not a finding of fact.] A finding that plaintiff failed to estab-
lish his case by a fair preponderance of evidence is not a finding of fact within
the meaning of section 1022 of the Code, although so designated in the de-
cision. (Franek v. Franck, 11 Misc. Rep. 569 [1895].)
A conclusion of law construed to be a finding of fact.] Where the
defense to an action of foreclosure was a general denial and the evidence is
not in the record, the appellate court may assume that a conclusion of law
that the defendant was not in default was a finding of fact. ( Mutual Benefit
Loan & Building Co. v. Jaeger, 34 App. Div. 90 [1898].)
Findings in State court conclusive on appeal to United States court.]
{15 Albany Law Journal, 267.)
CASE — Requisites of a case.] A case on appeal must contain so much of
the evidence, and other proceedings upon the trial, as is material to the quee-
tions to be raised thereby, and also the exceptions taken by the party making
the case; and in a case where a special question is submitted to the jury, or
the jury has assessed damages, such exceptions taken by any party to the
action as shall be necessary to determine whether there should 'be a new triil
in case the judgment shotild be reversed.
It is not necessary to state in a case that a finding upon the facts or a rul-
ing upon the law was made where the finding or ruling appears in a referee's
report, or in the decision of the court upon a trial by the court without a jury.
(Code of Civil Procedure, § 997.)
Practice as to making.] As to the manner of reviewing the decision
of a judge or referee, and the making and settling of a case and exceptions,
see The People v. Albany & Susquehanna Railroad Company (57 Barb. 204
[Gen. T. 1879], and the note of Mr. N. C. Moak at page 210.) Who to pre-
pare it. (Luce V. Morison, 2 Law Bulletin, 95 [1880].)
Contents of case.] What should be contained in the case, considered.
(Dainese v. Allen, 14 Abb. [N. S.] 363 [N. Y. Supr. Ct. Gen. T. 1873.]
Exceptions to findings of fact present no question for review where no
case has been made containing the evidence. (Drake v. N. Y. Iron Mine, 156
N. Y. 90 [1898].)
The opinion of the court below forms no part of the record, and cannot
be referred to in order to show the grounds of the decision. ( Randall v. N. Y.
El. R. R. Co., 149 N. Y. 211 [1896] ; Lounsbury v. Duckrow, 22 Misc. Rep.
434 [Onondaga County Ct. 1898].)
A copy of the account, served in pursuance of a demand therefor, if not
200 CouETs OF Eecoed. [Rule 32
put in evidence, is no part of the record. (Spies v. Michelson, 15 Misc. Rep.
414 [Sup. Ct. Tr. T. 1896].)
When the omission of a colloquy between court and counsel will deprive
the appellant of the right to review a most material circumstance, it is proper
to insert it in the case. (Moroney v. Cole, 56 Misc. Rep. 454.)
RemarliS of coimsel and court concerning the admissibility of evidence
should not appear in the case where everything necessary to show the objec-
tion, the grounds of the same, the ruling of the court, and the exceptions,
appear. (Davidson v. N. Y. City Ry. Co., 122 App. Div. 11; Pulcino v. Long
Island R. R. Co., 125 App. Div. 629.)
All findings made by court or referee must be incorporated in the
formal decision directing entry of judgment or it will not be considered on
the appeal. Requests to find are not to be inserted unless the court refuses
to find. (Elterman v. Hyman, 117 App. Div. 519; People v. Brown, 118 id.
38; Selah v. N. Y. Times Co., Id. 384. See, also, Blewett v. Hoyt, 117
App. Div. 32.)
Narrative form.] A case not settled where the evidence is not reduced
to narrative fonn. (Donai v. Lutjens, 20 Misc. Rep. 221 [Sup. Ct. Sp. T.
1897].)
Preparation of case necessary only through rules of practice — failure
to serve case.] The rules of practice alone make the preparation of a case on
appeal necessary, and a failure to serve a case does not fall within the pro-
visions of Code of Civil Procedure (§ 1303) relative to mistakes or defects in
perfecting an appeal. (Odell v. McGrath, 16 App. Div. 103 [1897].)
Appeal by both parties — separate records.] Where both parties appeal
and make up separate records, each must stand upon his particular record
for the assertion of the legal rights to wliich he claims to be entitled. (Blaek
v. Brooklyn Heights R. R. Co., 32 App. Div. 468 [1898].)
Two independent cases cannot be incorporated in one appeal book.]
The practice regulating the hearing of appeals does not permit two independent
cases to be incorporated into one appeal book, but the record on each appeal
should be printed by itself, so that independent judgment-rolls may be made
up, embracing the papers and only the papers applicable to each. (Geneva &
Waterloo Ry. Co. v. N". Y. C. & H. R. R. R. Co., 24 App. Div. 335' [1897].)
A case essential to review.] In an action in which a judgment has
been entered upon a verdict of the jury, directed by the court, upon appeal,
in order that the General Term may review it as required by section 997 of
the Code of Civil Procedure, a case must be prepared and settled. (John
Douglas Co. V. Moler, 30 Abb. N. C. 293 [N. Y. City Ct. 1893] ; S. C, 3 Misc.
Rep. 373].)
Not necessary for review in all cases.] A party desiring to appeal
from a judgment entered upon a decision of the court is not obliged to pre-
pare a case to be settled, but he may file exceptions to the findings of the trial
court upon questions of law and have liis appeal heard upon tliose exceptions.
(Schwarz v. Wober, 103 N. Y. 658 [1886] Delaney v. Valentine, 11 App. Div.
316 [1896].)
Where a formal case and exceptions is unnecessary.] A formal case
and exceptions which show what proceedings were had before a referee are not
Rule 32] Gekeeal Etjles of Peactice, 201
necessary in the case of a reference directed by an interlocutory judgment,
to inquire and report; the appelUrnt must proceed exclusively under Rule 30
of the General Rules of Practice. (Crossley v. Adams, 55 St. Rep. 218 [X. Y.
Supr. Ct. 1893].)
What must be presented by a case in case of a sealed verdict.] Upon
receipt of a sealed verdict for the defendant, one oi the jurors stated that he
had changed his mind since the night before, whereupon the court directed a
verdict for the defendant. The case upon appeal from the judgment entered
thereon did not contain the testimony or the previous rulings of the court.
Held, that, under the circumstances, the appellate court could not determine
the correctness of the ruling, and the judgment could not be disturbed.
(Walsh V. Manhattan Railway Company, 13 Jlisc. Eep. ,50'5 [1895].)
Exception on trial.] Where any exception is taken at the trial, the
party may make a case presenting such exception. ( Huff v. Bennett, 2 Sandf .
703 [Sp. T. 1850]; S. C, 2 Code R. 139.)
Case to contain all that occurred on the trial.] All that occurred at
the trial in regard to the requests to charge and exceptions to the same should
be contained in the case on appeal. (N. Y. Rubber Co. v. Rothery, 29 St. Rep.
37 [Ct. Ap. 1890].)
Case should contain a statement that it contains all the evidence.]
In the absence of a statement in the case that the case on appeal contains all
the evidence, the Appellate Division will presume that sufficient evidence was
given to support the judgment. (Uhlefelder v. City of ilt. Vernon, 76 App.
Div. 349.)
It should contain all the colloquy between the court and counsel.]
The case on appeal should set forth the whole of a colloquy between court and
counsel, in which it is claimed that an admission was made by defendant's
counsel, and not the conclusion of the court therefrom that such admission
was made. (Cooley v. Trustees of the New York & Brooklyn Bridge, 36 App.
Div. 520 [1899].)
Order of stating evidence on appeal.] Where, on a trial before a referee,
testimony taken upon a former trial was read in a different order from that in
which it was contained in the record, and the parties concurred in recommend-
ing the referee to examine it, in the order in which it was printed, held, that it
should be so printed on appeal from the referee's decision. (Oreggs v. Day, 45
M Y. Supp. 309 [1897].)
Case to state real facts.] A party has a right to have the case show the
actual facts as they really happened on the trial. (Kamermann v. Eisner &
Mendelson Co., 25 Misc. Rep. 405 [1898].)
A paper not read should not be in the case.] An appraiser's certificate,
which the trial judge states positively has not been read or used in evidence,
and has, therefore, not influenced the jury, should not be included in the record
of a case on appeal. (McManus v. Western Assurance Co., 40 App. Div. 86
[1899].)
Intelligent index.] Where, upon appeal, the attorney in making up his
case presents an intelligible index, and indicates at the top of each page the
nature of the contents thereof, the court is greatly facilitated in examining
the testimony and exhibits. (Foster v. Bookwalter, 78 Hun,, 352 [1894].)
202 CoTJETs OF Eecobd. [Eule 32
An order striking out findings of court — when properly inserted in a
case on appeal.] Exeeptions taken to the refusal of the court to find in
accordance with a request are properly inserted in the case on appeal (Code
Civ. Pro., § 997), and so an order striking them out, ■where it does not appear
that they were not properly taken, is error. (Young v. Young, 133 K. Y.
626 [1892].)
The error claimed must appear in the record.] To be available for
reversal the error must appear from record. (Hughes v. Hughes, 10 ilisc.
Rep. 180 [1894].)
Failure to print exhibits as directed by the court, is irregular.]
A statement in a case on appeal, concerning exhibits, " the plans bearing the
stenographer's mark not having been produced though demanded, the appellant
has been unable to print the same," interpolated in the place of the trial
judge's direction " here insert the same," held, irregular and (the case recalled
for correction. (McCrcady v. Lindenborn, 24 Miso. Rep. 606 [1898].)
Necessity of incorporating rejected documents.] Where a resolution of
a corporation is in writing, if the corporation desires to offer it in evidence
in an action in which it is a defendant it should produce it, and if it is
rejected, should have it marked for identification and incorporated in the case
on appeal, so that the court can determ.ine upon the aippeal whether it was
competent.
Where an offer is made by a corporation to prove the substance of such a
resolution, which is objected to, it is proper for the referee to rule that the
offer is improper, and that the corporation should offer the resolution and
have it marked for identification in case it be rejected. (Mengis v. Fifth
Avenue Railway Company, 81 Hun, 480 [1894].)
Omitting letters submitted to the jury.] Wlien a judgment has been
rendered in an action in which there has been conflicting evidence in regard to
whether there was simply a delivery of chattels for trial or a sale, upon ap-
peal, if the case does not contain letters submitted to the jury relating to the
subject, an order reversing the judgment will not be granted. (Sloane v.
Lockwood Chemical Co., 45 St. Rep. 265 [Brooklyn City Court, 1892].)
Absence from case of papers covered by the certificate is no ground for
dismissing appeal. (Rosskam v. Curtis, 15 App. Div. 190 [1897].)
Omitting cumulative evidence.] When upon appeal in the defendant's
case a statement appears that " this case does not contain all the evidence
taken at the trial; there was additional evidence for the defendant which was
ciimulative," it will be presumed that evidence which does not appear in the
case sustained the facts found. (Guion v. Mundy, 45 St. Rep. 667 [N. Y.
Com. PI. 1892].)
Case presenting only questions of law — insertion of all the evidence in,
not proper.] In the settlement of a bill of exceptions, only so much of the
evidence as may be necessary to present the questions of law upon which the
exceptions were taken upon the trial should be inserted, and where, on the
settlement of the exceptions, the evidence has been unnecessarily inserted and
the expense of the appellant to print and present his case thereby increased,
an appeal lies from an order denying a motion for a resettlement made for
Eule 32] General Eules of Peactice. 203
the purpose of excluding such unnecessary evidence. (Marckwald v. Oceanic
Steam Nav. Co., 8 Hun, 547 [Gfen. T. 1876]; 3 N". Y. Wkly. Dig. 401.)
Case upon specific exceptions or questions only.] The appellant has
the right to make up a case on appeal upon specific exceptions or questions,
and to print only such evidence as relates thereto. (Firth v. Eehfeldt, 47
N. Y. Supp. 474 [1897].)
Appeal upon the juflgment-roll alone.] Where the appeal In an action
is heard upon the judgment-roll therein it is incumbent upon the appellant, in
order to succeed, to show that the trial court could not, in any view of the
facts found, properly order a judgment for the respondent. (Primeau v.
National Life Assn., 77 Hun, 418 [1894].)
To review legal questions a case need not contain all the evidence.]
Where a finding of fact by a court or referee is without evidence to support it,
it is a ruling upon a question of law (Code Civ. Pro., § 993),* and if ex-
cepted to presents a legal question which is reviewable upon appeal.
It is not necessary for the purposes of such review that the case should show
that it contains all the evidence. (Halpin v. Phoenix Ins. Co., 118 N. Y. 165
[1890]; Israel v. Manhattan R. Co., 158 N. Y. 624 [1899].)
A bill of exceptions should contain a concise statement of facts.]-
A bill of exceptions should contain only a concise statement of facts present-
ing the points intended to be relied upon as ground of error, or simply so much
of the evidence as may appear to be requisite for that purpose. (Tweed v.
Davis, 1 Hun, 252 [Gen. T. 1874] ; Price v. Powell, 3 N". Y. 322 [1850].) It
should not contain questions withdrawn, answers excluded, or testimony not
necessary to raise the questions on the exceptions. (Hoffman v. .35tna Fire
Ins. Co., 1 Rob. 501 [1863]; S. C, 19 Abb. 325.)
Exceptions and introductory statement of proceedings, without the evi-
dence.] On an appeal from a judgment entered upon the report of a referee,
the appellant served a case for argument containing an introductory statement
of the proceedings in the cause, the notice of appeal, the judgment record, con-
taining the referee's report and the exceptions filed thereto, but not contain-
ing the evidence. Held, that the practice of the appellant was correct. A
motion to strike out the exceptions aijd introductory statement in the case
was denied. (Davie v. Van Wie, I N". Y. Sup. Ct. 530 [G'en. T. 1873].)
Respondent presumed to have had inserted all the testimony necessary
to sustain the rulings.] Upon an appeal from a judgment dismissing a com-
plaint, the Appellate Division, in the absence of a certificate that the case
contains all the evidence, will assume that the respondent has procured to be
inserted therein all the testimony deemed essential to sustain the ruling.
(Hewett v. Town of Thurman, 41 App. Div. 6 [1899].)
Evidence omitted from proposed case — duty of respondent to supply.]
If the party making up the case omits any evidence, it is the duty of the
other party, if he deems the evidence material to sustain the findings, to cause
it to be inserted by amendment. (Tomlinson v. The Mayor, 44 N. Y. 601
[1871]; Wescott V. Fargo, 6 Lans. 325 [Gen. T. 1872]. See West v. Wright,
* Repealed by chapter 946 of 1895.
204 CotTBTs OF Eecoed. [Eule 32
86 Hun, 436 [1895] ; Porter v. Smith, 35 Hun, 118 [1885] ; Burrows v. Dickin-
son, 115 N. Y. 672 [1889]; Kissam v. Kissam, 21 App. Div. 142 [1897].)
Papers omitted from case — presumption.] Papers on which the origi-
nal order was made, and on which the motion for reargument was founded
which were recited in the order appealed from, did not appear in the record.
Held, that the General Term would assume that they sustained the order of
the Special Term, which should 'be affirmed. (Matter of McBride, 90 Hun,
259 [1895].)
Rulings on questions of law — what is notice to the respondent.] As
to the rulings on questions of law, there is no need that the case on appeal
should affirmatively show that it contains all the evidence received at the trial,
and since an exception to the denial of a nonsuit raises a question of law,
and serves as a notice to the respondent of an intention to raise the question
of error on the ruling excepted to, and puts upon him the responsibility of
supplying the requisite proof by amendment to the case. (Miner v. Edison
Electric 111. Co., 22 Misc. Rep. 543 [N. Y. City Ct. 1898].)
When the case need not contain all the testimony, etc.] It is not neces-
sary that the appellant's case contain all the testimony and exhibits if it
shows the objection to the tax which he wishes to have set aside. (Matter of
Byrnes, 34 St. Eep. 332 [Sup. Ct. 1890].)
Certificate not necessary to obtain review of rulings of the trial judge,
or of his charge.] A certificate that the case contains all the evidence is not
necessary to entitle the appellant in an action which was tried before a jury,
to review exceptions to the rulings of the trial judge or to his charge, although
based upon the insufficiency of the evidence. (Rosenstein v. Fox, 150 X. Y.
354 [1896].)
Failure of certificate to state that it contains all the evidence — what
errors of evidence reviewed.] Where the certificate does not state that it con-
tains all the evidence, only errors in the admission or exclusion of evidence are
open to review, and if none appear, the findings of fact are conclusive. ( Fleck
V. Rau, 9 App. Div. 43 [1896].)
Case not containing the evidence — review limited to errors of law.]
Where the case on appeal to General Term from a judgment entered upon the
report of a referee does not contain the evidence tlie General Term cannot
review the case upon the facts, as they are not before it, and its order of
reversal must be based on assumed errors of law, and the right to review in
the Court of Ap'peals is necessarily confined to such errors of law. (Billings
V. Russell, 101 N. Y. 226 [1886].)
Appeal heard on judgment-roll — no evidence printed.] Where an
appeal is heard on the judgment-roll, the evidence not being printed, the
appellants must show that the trial court could not in any view of the facts
found properly order a judgment for respondent. (ilcCabe v. O'Connor, 4
App. Div. 354 [1896]. See Kincaid v. Kincaid, 85 Hun, 14 [1895]; First Nat.
Bk. of Syracuse v. N. Y. C. & H. R. R. R. Co., Id. 160 [1895].)
A direction of a nonsuit may be reviewed, though the record does not
show that the case contains all the evidence. (Zimmerman v. Union R. Co.,
3 App. Div. 219 [1896].)
'Eule 32] General Eules of Psactice. 205
Failure to print in a case letters objected to — exception to their exclu-
sion unavailing.] Where letters are objected to as immaterial, and excluded,
and are not 'printed in the case on appeal, the appellate court has nothing
from which to determine their materiality, an-d an exception to their exclusion
is unavailing. (Eanson v. Wheelwright, 19 Misc. Rep. 106 [Sup. Ct. App. T.
1897]. See, also, as to postal cards, Reading Braid Co. v. Stewart, 20 id. 86
[Sup. Ct. App. T. 1897].)
What is a sufficient statement of evidence.] A proposed case and
exceptions stating "evidence was offered by the plaintiff tending to prove,
etc.," followed by a statement of the evidence received, the objection thereto
and the ruling thereon, held to be sufficient within the Code of Civil Procedure,
§ 997, since the point raised was clearly intelligible, and respondent, if the
statement did not conform to the facts as they appeared at the trial and upon
which the ruling is based, should propose an amendment. (Hubbard v. Chap-
man, 28 App. Div. 577 [1898].)
Effect of its failure to state that the case contains all the evidence.]
Failure of the case to state that it contains all the evidence does not pre-
clude the appellate court from considering an exception to a refusal to dis-
miss at the close of plaintiff's case, as the motion therefor was notice that
defendant intended to question the sufficiency of the proof, and it then became
plaintiff's duty to see that the case contained all that was necessary to sus-
tain the ruling. (Miner v. Edison Electric Illuminating Co., 26 Misc. Rep.
712, affg. 22 i-d. 543 [1899]. See Hewett v. Town of Thurman, 41 App. Div. 6
[1899]; Tomlinson v. The Mayor, 44 N. Y. 601 [1871]; Westoott v. Fargo, 6
Lans. 325 [Gen. T. 1872].)
Where there is no certificate and no order denying motion for new trial,
only questions of law are considered. (Beebe v. N. Y. & N. E. R. R. Co., 91
Hun, 294 [1895]. See, also, McNish v. Village of Peekskill, 91 id. 324 [1895].)
When the case does not contain the evidence.] If the case embraces
no evidence, but only the facts found and the conclusions of law, the presump-
tion is that there was no evidence from which any other facts could be found,
and the only question raised on exceptions to the conclusions of law is
whether they are justified by the facts found. (Stoddard v. Whiting, 46 X. Y.
627 [1871]; Norton v. Matthews, 11 Misc. Rep. 711 [N. Y. Supr. Ct. 1895];
Drake v. N. Y. Iron Mine, 89 Hun, 280 [1895].)
What will be considered, when the entire record is a bill of exceptions,
and the judgment-roll.] Wlien the whole record is a bill of exceptions annexed
to a judgment-roll, all the evidence not being before the court, only the excep-
tions taken at the trial are to be considered. (Cox v. Davis, 8 App. Div. 491
[1896].)
Errors of law considered when no certificate is made.] When there is
omitted from the case on appeal the certificate that all the evidence is con-
tained therein, the court may review the error of law involved by a verdict
without evidence. (Robbins v. Downey, 45 St. Rep. 279 [N. Y. Com. PI.
1892].)
No review of the facts without such a certificate.] (Evans v. Howell,
75 Hun, 199 [1894]; Root v. Strang, 77 id. 14 [1894]; Webster v. Kings
206 CouETs OF Eecokd. [Eule 32
County Trust Co., 80 id. 421 [1894] ; Levi v. Newhall, 30 St. Rep. 283 [N. Y.
Supr. a. 1890]; Claflin v. Flack, 36 id. 728 [N. Y. Com. PI. 1891]; Hinds v.
Kellogg, 37 id. 356 [N. Y. Com. PI. 1891] ; Fultz v. Paul, 38 id. 125 [Sup.
Ct. 1891]; Clark v. House, 40 id. 956 [Sup. Ct. 1891]; Culliford v. Gadd, 44
id. 22 [N. Y. Supr. Ct. 1892] ; Momeyer v. N. Y. Sheep & Wool Co., 49 id.
414 [Sup. Ct. 1892] ; Brooker v. Filkins, 9 Misc. Rep. 146 [N. Y. Com. PI.
1894] ; Brown v. James, 9 App. Div. 139 [1896] ; Sandiford v. Frost, 9 id. 55
[1896] ; Hedges v. Polhemus, 14 Misc. Rep. 309 [N. Y. Com. PI. 1895] ; Murray
V. Babbitt, 10 id. 365 [N. Y. Com. PI. 1894] ; Gage v. Lippman, 12 id. 93
[N. Y. Com. PI. 1895]; Button v. Kinnetz, 88 Hun, 35 [1895]; Brown v.
Fishel, 83 id. 103 [1894]; Jagau v. Goetz, 11 Misc. Rep. 380 [N. Y. Com. PI.
[1895]. See Certificate, post, p. 210.)
Where there is no certificate, respondent is entitled! to assume that no
review of questions of fact will be demanded. (West v. Wright, '86 Hun, 436
[1895].)
Questions of law reviewable, though there is no evidence in the case.]
The questions of law are reviewable on the facts found, though no evidence is
contained in the case. (Ferguson v. Hamilton, 35 Barb. 427 [Gen. T. 1862].
See Bissel v. Pearse, 21 How. Prac. 130 [Gen. T. 1861]; Dainese v. Allen, 14
Abb. [N. S.] 363 [X. Y. Supr. Ct. Gen. T. 1873].)
Printing report and all findings.] The referee's report and all findings
must be printed upon appeal, so that it may be determined by the court
whether the referee has .passed upon all the requests to find. (Thompson v.
McCaldin, 27 N. Y. St. Rep. 619 [Sup. Ct. 1889].)
Immaterial letters not to be printed in the case.] Tt is proper to omit
the printing in a case on appeal of immaterial letters. (De Klyn v. Silver
Lake Ice Co., 36 N. Y. St. Rep. 84 [Supr. Ct. 1891].) Affirmed, without
opinion, in 128 N. Y. 582.
Further findings — proceedings to obtain, may be inserted in the case.]
Upon an appeal from the judgment, the proceedings to obtain further findings
can be inserted in the record, and the materi..lity of the findings asked for can
be reviewed at General Term and in the Court of Appeals, (ileacham v.
Burke, 54 N. Y. 220 [1873] ; Woodhull v. Rosenthal, 61 id. 382 [1875].)
Respondent's exceptions — not to be in case.] A case should not con-
tain exceptions taken by the respondent, except in peculiar cases. (Dabney v.
Stevens, 10 Abb. [N. S.] 39 [Sup. Ot. Gen. T. 1870]; affd., 46 X. Y.
681; Matter of Levy's Will, 91 App. Div. 483; affd., 179 N. Y. 603.)
Respondent's exception — when he may insist that it be disregarded.]
While a respondent can have no benefit from his exception to the admission of
incompetent evidence offered by appellant and received by the trial court, he
may, on appeal, insist that it be disregarded in considering whether appellant
made out a case. (Winne v. Hills, 91 Hun, 89 [1895].)
Judge's charge.] The judge's charge should not be inserted in extenso.
(Bulkeley v. Keteltas, 4 Sandf. 450 [Gen. T. 1851].)
The charge not to be put in a case, unless excepted to.] If no part of
the charge is excepted to, the charge should not be included in the case on
appeal. (Shook v. O'Neil, 1 Law Bulletin, 38 [N. Y, Com. PI. Sp. T. 1879].)
Eule 32] General Eules of Peaoticb. 207
Alleged portions of charge stricken out — error cured by stipulation.]
An error, if any, in refusing to resettle a case on appeal by striking out alleged
portions of the charge is cured by stipulation that the appeal be heard without
reference to the matter sought to be expunged, and that the case be deemed
amended so as to conform to the contention of the moving party. (Dearing v.
Pearson, 8 Misc. Rep. 277 [N. Y. Com. PI. 1894].)
Statement as to the time of commencement of the action.] On the
resettlement of a case, even if a point raised at the trial might be affected by
a positive statement of the time of the commencement of the action, the v?ords
"on or about" may be inserted, and are sufficient to conform to Eule ^To. 41
of General Rules of Practice. (James v. Work, 51 N. Y. St. Rep. 323 [Sup.
Ct. 1893].)
A statement of facts in the opinion, to be printed.] Statements of
facts in the opinion may be required to be printed in the case on appeal, in
order that the Appellate Division shall be informed of the view of the facta
upon which the trial judge has based Ms legal conclusions. (McManus v.
Western Assurance Co., 40 App. Div. 86 [1899].)
The case must show plainly the erroneous ruling.] It is the duty of
the appellant, in making up his case, to show plainly that an erroneous ruling
was made adversely to him, and not leave that fact to appear by inference or
conjecture. (Clark v. Donaldson, 49 How. Prac. 63 [Gen. T. 1874].)
Limit imposed upon plaintiff's case on the trial.] The objection that a
plaiaitiil had so limited his case on the trial as to preclude his adopting one
theory of it consistent with his pleadings must, in order to be taken advantage
of on appeal, appear affirmatively in the case. (Hazewell v. Coursen, 81 N. Y.
630 [1880].)
VHiere pleadings do not conform to the evidence.] Although the plead-
ings do not conform to the evidence, if the facts in the case prove a good
cause of action and no objection is made to the evidence, the case may be dis-
posed of on appeal, as though the pleadings had been amended on trial.
(Tisdale v. Morgan, 7 Hun, 583 [1876].) See, also, Howell v. Grand Trunk R.
Co., 92 id. 423 [1895].
When a referee's findings of fact are to be reviewed as being against
the weight of evidence — as having no evidence to support them.] Where a
party appealing from a judgment, entered upon the report of a referee, desires
to raise in the appellate court the question that any finding of fact is against
the weight of evidence, he must have the case bo prepared as that it shall
appear therefrom that all the evidence bearing on the finding of fact sought
to be reviewed, is set forth therein. Where, however, he claims that a par-
ticular finding of fact is without any evidence to support it, and he has ex-
cepted thereto as provided in section 993* of the Code of Civil Procedure,
thereby presenting for review only a question of law, it is unnecessary to state
in the case that all the evidence bearing on such finding is set forth therein.
(Spence v. Chambers, 39 Hun, 193 [Gen. T. 1886].)
When motion for new trial made.] A motion for a new trial for error
in the finding of fact, must be made .before the expiration of the time within
* Repealed by chapter 946 of 1895.
208 CoDETs OF Eecoed. [Rule 32
which an appeal can be taken from the judgment, i. e., within thirty days
after service of a copy of the judgment entered. (Heath v. N. Y. Bldg. Loan
Banking Co., 91 Hun, 170 [1895].)
Motion for a new trial of an issue of fact after entry of an inter-
locutory judgment can only be made upon a case and exceptions.] A motion
at General Tenn, after the entry of interlocutory judgment, for a new trial of
an issue of fact tried by the court without a jury, or by a referee, when excep-
tions taken to rulings are sought to be reviewed, mxist be made upon a case
and exceptions which must be settled and signed by the judge or referee by or
before whom tlie action was tried, as prescribed by the General Rules of Prac-
tice. (Green v. Roworth, 4 Misc. Rep. 141 [X. Y. Com. PI. 1893].)
Motion for new trial in an equity action — made when application is
ruade for final judgment.] Where specific issues liave been tried in an equity
snit, and a motion for a new trial on the minutes has been made and denied,
the party moving may again make a motion for a new trial on a case and
exceptions, when application is made at Special Term for final judgment.
(Anderson v. Carter, 24 App. Div. 462 [1897].)
A party moving for a new trial must make a case and procure its
settlement. (Bantleon v. ileier, 81 Hun, 162 [1894].)
Motion not heard on evidence alone, unless by consent. (Boyd v. Boyd,
11 Misc. Rep. 357 [1895].)
A case is necessary, when motion is made on ground of newly-discovered
evidence. (Harris v. Gregg, 4 App. Div. 615 [1896].)
Question of fact — how presented at the General Term.] In order to
present a question of fact at tlie General Term, on appeal from the Special
Term, there should either be a finding of fact together with a conclusion of law
tliereupon, and an exception thereto, or a request to find thereupon, and an
exception to a refusal so to find. (Pm-dy v. Purdy, 9 N. Y. Wkly. Dig. 425
[Gen. T. February, 1880].)
Appellate Division — when cannot reverse on the facts.] A judgment
cannot 'be reversed on the facts where all the facts are of record and uneon-
troverted. (Westerfeld v. Rogers, 174 N. Y. 230 [1903].)
What necessary for review in Court of Appeals.] When there is
neither a case made or settled showing that any question was raised nor any
exceptions taken, nor a report of a referee or findings of the court with excep-
tions, the Court of Appeals has no jurisdiction to entertain the appeal.
(Smith V. Starr, 15 Alb. Law J. 514 [Court of Appeals, 1877].
When order of Appellate Division reviewable by Court of Appeals.]
An order of the Appellate Division reversing an order of tlie Surrogate's
Court directing tlie continuation of a proceeding for a compulsory accounting,
etc., is a final order and reviewable by the Court of Appeals, (ilatter of Fitz-
simmons, 174 N. Y. 15 [1903].)
Unanimous approval of a finding of fact by the Appellate Division is
conclusive upon Court of Appeals.] A finding as to the law of a foreign
State, if unanimously approved by the Appellate Division, is conclusive upon
the Court of Appeals. (Spies v. Nat. Bank, 174 N. Y. 222 [1903].)
Rule 32] Geneeal Eules of Practice. 209
Appeal to Court of Appeals from order granting new trial — appellant
must attend to exceptions.] Upon appeal to the Court of Appeals, from an
order granting a new trial, the appellant takes the risk of every exception
appearing upon the record, and the respondent may sustain the order by show-
ing any legal error upon the part of the trial court. ( Foster v. Bookwalter,
152 N. Y. 166 [1897] ; Durland v. Durland, 153 id. 67 [1897].)
Contents of case on appeal.] In a case where a verdict is rendered by
direction of the court and a motion to set aside such verdict is subsequently
granted and an appeal taken from such order to the Appellate Division, upon
which appeal a case and exceptions are settled, it is not necessary upon appeal
to the Coorrt of Appeals from the reversal of such order by the Appellate Divi-
sion to prepare a new case as required by Code of Civil Procedure, section 1339.
(South Bay Co. v. Howey, 190 N. Y. 240, revg. 113 App. Div. 382.)
When an appeal will not be considered.] In an equity suit the court
will not consider an appeal when the record discloses no findings signed by the
judge, but merely conclusions of law unsigned. (Simis v. MoElroy, 38 N. Y.
St. Rep. 3 [Sup. Ct. 1891].)
" Minutes of referee " attached to a judgment-roll — not considered on
appeal.] Where, on appeal from a judgment, the papers contain the judg-
ment-roll and what purported to be a copy of a paper indorsed " minutes of
referee," but there was no evidence that it had been settled or signed, held,
that such paper could not be considered on the appeal. (Albright v. Riker,
11 N. Y. Wkly. Dig. 27 [Gen. T. 1880].)
The clerk's minutes cannot be used to indicate the legal questions raised
upon the trial, or the grounds of the decision.] Where a case as settled stated
the grounds upon which a motion to dismiss the complaint was made and
granted, held, that this was controlling and that the respondent could not
refer to the clerk's minutes, although incorporated in the record, to show that
the motion was also based upon other grounds than those stated in the case,
but it was held that the respondent had the right, in support of the judgment,
to urge any sufficient ground appearing from the record which he might have
raised in the court below, provided it could not have been obviated had it been
raised on the trial. (Scott v. Morgan, 94 N. Y. 508 [1884].)
Appellant not bound to print matter in the case on appeal to the
Court of Appeals disallowed by the trial judge.] An appellant is simply bound
to present his case to the General Term upon the case as settled, and to the
Court of Appeals upon the same record; he is not bound to print matter pro-
posed by the respondent as an amendment to the case, but disallowed by the
trial judge, who, however, required the appellant to paste certain exhibits
in the appeal book if they were furnished by the respondent. ( Kilmer v. New
York Central & Hudson River R. R. Co., 04 N. Y. 495 [1884].)
Evidence — prima facie, of the facts stated.] After a case or excep-
tions has been settled and filed with the clerk it may be taken, in the further
progress of the action, as prima facie evidence of the facts therein stated.
(Van Bergen v. Ackles, 21 How. Prac. 314 [Sp. T. 1861]. See, also, Howell
V. Grand Trunk R. Co., 92 Hun, 423 [1895].)
14
210 Courts of Eecoed. [Eule 32
Settlement of case by trial judge.] The reoollection of the trial judge
as to a colloquy in the trial is conclusive in the Appellate Division. (Burke
V. Baker, 104 App. Div. 36. )
Amendment.] In settlement of case and exceptions, an amendment is
not allowable on the ground that an exception it is proposed to strike out
was not worthy of consideration in the appellate court. Such conclusion is
not within the province of the trial court. (Brauer v. N. Y. City Inter. Ry.
Co., 129 App. Div. 384.)
In a case where trial justice prior to his death settled the case on appeal
as stipulated by counsel, court is empowered upon subsequent application to
allow an amendment of the same, although different from stenographer's
m.inut6S, when the fact is clearly and satisfactorily established to the satis-
faction of the court. (McMahon v. D., L., etc., E. R. Co., 116 App. Div. 532.)
CERTIFICATE — Necessary to a case reviewing facts.] In the absence of
a certificate in the uppeal book that the case contains all the evidence taken
at the trial, the respondent is entitled to rely upon ihe presumption that there
was no intention to ask for a review of the rulings' on the question of fact.
(West V. Wright, 86 Hun, 436 [1895]. See ante, pages 205, 206.
It is conclusive.] The settlement by the trial judge of the case on
appeal upon a dispute as to what occurred, is conclusive. (Balz v. Shaw, 11
Misc. Rep. 444 [1895]'.)
A case should state that it contains all the evidence.] (Beach v. Yates,
1 Sup. Ct. R. [T. & C], addenda 21* [Gen. T. 1873].)
Statement that the case contains all the evidence — when proper.] A
statement that it contains all the evidence given upon the trial, will not be
inserted unless the object is to move for a new trial upon the ground of a
misdirection which was not the subject of an exception. (Jlagnus v.
Trischet, 2 Abb. [N. S.] 175 [Sp. T. 1866].)
Case must purport to contain all the evidence.] Upon appeal the
weight of the evidence or the good faith of the witnesses will not be consid-
ered unless the case purports to contain all the evidence. (Schuler v. Third
Ave. R. R. Co., 1 Misc. Rep. 351 [N. Y. Com. PI. 1892] ; Hyland v. Anderson,
Id. 377 [N. Y. Com. PI. 1892] ; Gaylord v. Gallagher, Id. 328 [N. Y. Com. PI.
1892]; Davey v. Lohemann, Id. 317 [N. Y. Com. PI. 1892 J.) This does not
apply to a jury trial. (Rosenstein v. Fox, 150 N. Y. 354 [1896].)
A certificate which covers " all testimony given, all the exhibits of the
parties and all the proceedings had upon the trial."] A certificate attached
to a case on appeal, stating that it contains " all testimony given, all the
exhibits of the parties, and all the proceedings had upon the trial," is equiv-
alent to a certificate that the case contains all the evidence bearing upon
any disputed question of fact. (Orcutt v. Rickenbrodt, 42 App. Div. 238
[1899].)
Certificate that it contains all the material evidence.] An appeal will
not be dismissed for the reason that no certificate is attached to the case
stating that it contains all the evidence, when a statement is made that it
contains all the material evidence upon the matters therein involved. (Mat-
ter of Chapin, 84 Hun, 490.)
Kule 32] General Eules of Peactice. 211
When all the material evidence appears a certificate is proper.] The
case on appeal should contain all the evidence material to the questions to be
decided by the appellate court, and amendments may be proposed by the
respondent, but the appellant should be allowed a certificate that the case
contains all the evidence, unless the attention of the judge has been called
to the omission of material evidence. (Kenwick v. N. Y. Elevated R. R. Co.,
36 St. Rep. 682 [Sup. Ct. 1891].)
Where appellant should be allowed to insert a statement.] Where re-
spondent concedes that in fact the case on appeal contains all the evidence,
appellant should be allowed, as a matter of favor, to amend the case by
inserting a statement to that effect. (Martin, Ring & Co. v. Baust, 23 App.
Div. 234 [1897].)
Certificate does not imply that the evidence is word for word.] A cer-
tificate that all the evidence is contained in the ease on appeal means that
all the material evidence is presented to the court, and not that the case
contains word for word what was given on the trial. (Ren wick v. N. Y.
Elevated R. R. Co., 36 St. Rep. 682 [N. Y. Sup. Ct. 1891].)
In the absence of a statement that a case contains all the evidence
upon a question sought to be reviewed, the court, on appeal, may determine
that there was no evidence to support any finding of fact duly excepted to.
(McEntyre v. Tucker, 5 Misc. Rep. 228 [N. Y. Com. PI. 1893].)
What is a sufScient certificate.] A certificate on appeal which recites
" the foregoing case contains all the evidence relating to the matters con-
tained in said case and bill of exceptions," held sufficient when, as in the
ease at bar, only a portion of the cause of action or of the defenses litigated
on the trial are brought up for review. (Oaksmith v. Baird, 19 App. Div.
334 [1897].)
A stipulation that a case contains all the "oral evidence" is not suf-
ficient. (Matchett v. Lludberg, 2 App. Div. 340 [1896].)
That the case contains all the evidence bearing upon the exceptions.]
On appeal from a judgment entered on the report of a referee the certificate
annexed to the case was as follows: "The annexed case contains all the evi-
dence bearing upon the exceptions given (taken) upon the trial." Held,
sufficient to bring up for review exceptions to refusals of the referee to find
facts as requested. (McEntyre v. Tucker, 5 Misc. Rep. 228 [N. Y. Com. PI.
1893].)
Minutes of testimony and proceedings on the trial, sufScient.] The
evidence should not be reviewed when upon appeal the case contains no
certificate that all the evidence is before the court, but does contain a state-
ment that " the foregoing are the minutes of all the testimony taken and
proceedings had on the said trial." (De Mott v. Hendriok, 47 St. Rep. 731
[Sup. Ct. 1892].)
When the minutes of trial signed by the clerk are a sufficient certifi-
cate. (Sedgwick v. Macy, 24 App. Div. 1 [1897].)
Qumre, whether a certificate that the case contains " all the testimony
taken on the appeal" is sufficient. (Zimmerman v. Union Ry. Co., 3 App.
Div. 219 [1896].)
212 CouETs OF Eecoed. [Rule 32
What statement is insufficient to constitute a proper certificate.] Ihe
statement in a ease that the " foregoing is a complete record of all the tes-
timony taken on the trial of the above-entitled action, and is a true record
of all the proceedings thereat," is not equivalent to the statement that the
"case contains all the evidence adduced at the trial," and is insuflBcient to
allow of a review of questions of fact. (Hannon v. Gallagher, 19 Misc. Rep.
347 [N. Y. City Ct. 1897].)
A certificate that " the foregoing contents are all the testimony and
proceedings taken on the trial of said action," held irregular. (Becker v.
Fischer, 13 App. Div. 555 [1897].)
Appellant's attorney's affidavit does not supply the place of a certifi-
cate.] An affidavit of the appellant's attorney, annexed to the case, and
stating that " the foregoing is all of the evidence given at the trial of the
action in question," does not supply the place of the required certificate.
(Gorham Mfg. Co. v. Scale, 3 App. Div. 515 [1896].)
Exceptions to findings of fact not necessary where there is a certifi-
cate.] Where there is a certificate that the case contains all the evidence, it
is not necessary on appeal to the Appellate Division that appellant file excep-
tions to the findings of fact. (Watts v. Bd. of Education, 9 App. Div. 143
[1896].)
The Special Term may insert in a case a statement that it contains all
the evidence.] When the statement, " The foregoing contains all the evidence
upon the trial" has been omitted from a case on appeal through inadvert-
ence, it is proper for the court at Special Term to permit its insertion for
the purposes of a pending appeal to the Court of Appeals. (Barnard v.
Gantz, 69 Hun, 104 [1893].)
Upon extent of plaintiff's damages insufficient.] A statement in a case
on appeal that " the foregoing presents all the evidence being upon the extent
of the plaintiff's damages " is not equivalent to the statement that " the case
contains all the evidence," called for by the rule, and does not authorize the
appellate court to review alleged errors of fact. (Katz v. Koster, 6 Misc. Rep.
327 [N. y. Sup. Ct. 1893].)
Absence of certificate prevents reduction of an exaggerated recovery by
the Appellate Division.] Though the amount of the recovery appears from
the evidence in the record to be exaggerated, the Appellate Division cannot
reduce it or order a new trial in the absence of a certificate that the case
contains all the evidence. (Hunt v. Webber, 22 App. Div. 631 [1897].)
Testimony not equivalent to evidence.] Where documentary evidence
has been omitted from the case on appeal, a statement in the case that it
contains all the testimony given on the trial cannot be substituted for a
statement that the case contains all the evidence. (Uppington v. Pooler, 47
St. Rep. 30 [Sup. Ct. 1892].)
A statement in the record upon an appeal from a judgment that the
same " contains all the testimony taken upon the trial in this action " is not
equivalent to the statement that the case contains all the evidence, and in
the absence of the latter statement the General Term is precluded from
reviewing questions of fact. (Randall v. The New York Elevated Railroad
Co., 76 Hun, 427 [1894]; Grening v. Malcom, 83 id. 9 [1894] ; Bonwell v. Auld,
Eule 32] Genekal Eules of Pkactice. 213
9 Misc. Rep. 65 [N. Y. Com. PI. 1894], affg. 7 id. 447; McCarthy v. Gallagher,
4 id. 188 [N". Y. Com. PI. 1893]; Koehler v. Hughes, 73 Hun, 167 [1893].)
The facts found by the trial judge are conclusive where the certificate
in the case on appeal simply states that the case contains all the "testi-
mony " given upon the trial. (Hyman v. Friedman, 45 St. Eep. 636 [N. Y.
Com. PI. 1892].)
The case must contain an order denying a new trial and a notice of
appeal therefrom.] Where the papers in a case on appeal from a judgment
entered on the verdict of a jury contain no appeal from an order denying a
motion for a new trial, and no order is found denying such a motion, and
the case does not show that it contains all the evidence given upon the trial,
the appeal brings up for review only the exceptions taken upon the trial.
(Dexter v. The Village of Fulton, 86 Hun, 433 [1895]; Eopes v. Arnold, 81
id. 476 [1894].)
Appeal from a judgment and not from an order denying a new trial.]
Where there is no appeal taken from the order denying a motion for a new
trial, an appeal from the judgment brings up for review only the exceptions
taken on the trial. (Wright v. Haskiu Wood Vulcanizing Co., 76 Hun, 340
[1894].)
Where the appeal is from the judgment alone, the facts are not before
the court for review. (Goodwin v. Brennecke, 21 App. Div. 138 [1897].)
In its absence questions as to excessive verdict, etc., not considered.]
Where the case on appeal does not contain a statement that it contains all
the evidence taken on the trial, the appellate court cannot inquire as to
whether or not the verdict is for excessive damages or against the weight of
evidence, but is confined to any alleged errors of law that may have been
committed on the trial. (Howe v. Woolsey, 7 Misc. Rep. 33 [N. Y. Com. PI.
1894]; Whiting v. Standard Gaslight Co., 83 Hun, 4 [1894]; Blaustein v.
Guindon, Id. 5 [1894]; Grening v. Malcom, Id. 9 [1894]; Hunt v. Webber,
22 App. Div. 631 [1897].)
Respondent not compelled to add testimony to enable a referee to
certify that case contains all the evidence.] When a case on appeal, as settled
by the trial referee after the submission of amendments by the respondent,
does not contain all the evidence, and the referee is not then asked to certify
that it does contain all the evidence, and the referee, on being thereafter
asked by the appellant to order the case on file, is asked to certify that it
contains all the evidence, it is improper to compel the respondent to add
such testimony as may be necessary to enable the referee to make the desired
certificate. (Martin v. Adams, 73 Hun, 122 [1893].)
No particular form required.] No paT'ticular form of words that the
case contains all the evidence is required for this statement, and where there
is a statement in the record that it contains all the testimony, and both
parties proceed to argument without any objection as to the power of the
General Term over the whole case, the court is warranted in assuming that
all the evidence is in the case and should pass upon the facts. (Dibble v.
Dimick, 143 N. Y. 549 [1894].)
214 CouETs OF Eecoed. [Eule 32
Absence of a certificate precludes the appellate court from considering
a motion for a new trial.] An omission from the ease on: appeal of a state-
ment that it contains all the evidence precludes the appellate court from
considering a motion for a new triffl on the minutes. (McAvoy v. Cassidy,
8 Misc. Rep. 595 [City Court of Brooklyn, 1894].)
There can be no review of evidence by the General Term in the ■
absence of a certificate, and also of an appeal from an order denying a new
trial. (Gregor v. McKee, 18 Misc. Rep. 613 [N. Y. City Ct. 1896].)
Absence of certificate in action for negligence — questions not consid-
ered by Appellate Division.] Where there is no certificate, and the case pur-
ports only to include the testimony and proceedings necessary to present
plaintiff's exceptions, it was held that the Appellate Division would not con-
sider whether the trial court erred in submitting to the jury the questions
as to whether plaintiff has sustained any pecuniary injury in consequence
of defendant's negligence or as to the contributory negligence of the party
injured. (Qaven v. City of Troy, 15 App. Div. 163 [1897].)
When facts reviewed without exception to a decision, if case contains
all the evidence.] Where the decision has been made, containing findings of
fact and conclusions of law, separately stated, the defeated party is at lib-
erty upon appeal to review the facts without having filed any exceptions to
the decision, provided it appears that the case contains all the evidence.
(Matchett v. Lindberg, 2 App. Div. 340 [1896]..)
Motion to set aside verdict — review of — what the case should con-
tain.] Where a motion is made to set aside a verdict as against the weight
of evidence and is entertained and denied, the decision cannot be reviewed
at General Term, imless the case states that it contains all the evidence
bearing upon the question. (Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun,
415 [1879].)
Where there is no certificate, a verdict for six cents damages will not
be set aside as inadequate, although from what does appear in the ease such
verdict was inadequate. (Revelski v. Droesch, 6 App. Div. 190 [1896].)
The case must contain all the evidence.] Where, on the ground that a
verdict is not sustained by the evidence, a motion for a new trial is made
and denied, or where defendant moves for a nonsuit on the ground of lack
of evidence and his motion is denied upon appeal, the case presented to the
court should contain all the evidence given upon the trial. (Sloane v. Lock-
wood Chemical Co., 45 St. Rep. 265 [Brooklyn City Court, 1892].)
The record on an appeal from an order confirming the report of a ref-
eree, to assess damages, should contain all the evidence. (Williams v. Lind-
blom, 90 Hun, 370 [1895].)
No review of the direction of a verdict if there be no certificate.]
Where there is no certificate in a case on appeal that it contains all the evi-
dence, there can be no review of a ruling refviaing to direct a verdict or of
exceptions based upon alleged deficiencies in evidence. (Rosenstein v. Fox,
9 Misc. Rep. 449 [N. Y. Com. PI. 1894].)
Judgment of affirmance by General Term of the City Court is conclu-
sive upon the Court of Common Pleas, in absence of certificate, as to the
weight of evidence and the propriety of its submission to the jury, and as
Rule 32] General Rules of Pkactioe. 215
to whether there was any evidence to support the recovery. (Soule v. Veyrac,
13 Misc. Kep. 167 [K Y. Com. PI. 1895].)
A certificate is not requisite to present an exception to the direction
of a verdict where a question for the jury appears. (Brown v. James, 2
App. Div. 105 [1896].)
Case — without evidence.] Where the case contains only the report of
the referee without any of the evidence, the appellate court will not set it
aside unless the report contains facts which render its conclusions erroneous.
The report must show that facts exist which are inconsistent with its con-
clusions of law. (Tomlinson v. The Mayor, 44 N. Y. 601 [1871].)
No appeal on the evidence without it.] The appellate court will not
consider an appeal on the evidence where the case fails to show all the
evidence adduced on the trial. (Miller v. Wright, 39 St. Rep. 44 [Sup. Ct.
1891].)
When the case should be ordered to be annexed to the judgment-roU.]
When the case is settled and filed, after entry of judgment, the judge, ref-
eree or coiu-t should make an order directing that the case be annexed to
the judgment-roU. (Cornish v. Graff, 36 Hun, 160 [1885].)
Objection that a case does not contain a proper certificate.] An objeo-
t>on that the case does not contain the certificates required by law must be
taken by motion to dismiss the appeal. (Woolsey v. Lasher, 35 App. Div
108 [1898].)
As to certificate on appeal from order of Surrogate's Court.] (See
Matter of Gowdey, 101 App. Div. 275.)
PRESUMPTION — Where the case does not allege that it contains all the
evidence.] On the review of a trial before a judge or referee, unless the case
shows that it contains all the evidence bearing on a disputed finding of fact,
the court will assume that there was no evidence sufficient to sustain the
finding. (Porter v. Smith, 35 Hun, 118 [1885].)
Respondent presumed to have had inserted all the testimony necessary
to sustain the rulings.] Upon an appeal from a judgment dismissing a com-
plaint the Appellate Division, in the absence of a certificate that the case
contains all the evidence, will assume that the respondent has procured to
be inserted therein all the testimony deemed essential to sustain the ruling.
(Hewett V. Town of Thurman, 41 App. Div. 6 [1899].)
Presumption that facts were proved to sustain the findings.] Wliere a
case upon appeal in an action tried by a referee contains only the judgment-
roll and none of the evidence, the Court of Appeals will assume that the
facts proved on the trial were sufficient to sustain the findings of fact made
by the referee, and his conclusions of law are alone the subject for review.
(Burrows v. Dickinson, 115 N. Y. 672 [1889].)
When absence of certificate fails to compel presumption that evidence
sustained verdict.] The court is not bound to assume that there must have
been evidence to sustain the verdict simply because of the absence of the
certificate that all of the evidence is contained in the case.
Where a case contains a fact admitted by both parties, or where the evi-
dence is all one way on a certain question of fact, the covirt is bound to
216 CouETs OF Eecoed. [Kule 32
regard it, and is not at liberty to assume that there was evidence to the con-
trary. (Lydecker v. Village of Nyack, 6 App. Div. 90 [1896].)
Presumption that sufficient evidence was given to support the judg-
ment.] In the absence of tlie statement that the case contains all the evi-
dence, the court will presume that sufiicient evidence was given to support
the judgment. (Kissam v. Kissam, 21 App. Div. 142 [1897].)
Presumption — Indulged by appellate court.] The Appellate Division
will assume that a referee has stated all tlie facts found by him aflirmatively
and that he negatives those facts litigated on the trial upon which his report
is silent. (Manly v. Insurance Co., 1 Lans. 20 [Gen. T. 1869]. See contra.
Hays V. Miller, 70 N. Y. 112 [1877].)
Presumption by Court of Appeals, where, after three trials, no objec-
tion has been taken, and there was no certificate.] Wliere the plaintiff's title
in ejectment has been upon the fact of the death of her mother prior to the
action, and at the trial no point was raised that the mother was not dead,
and after three trials of the case and as many appeals no specific objection
was taken by defendant to raise that question or to suggest that such a
defect existed in the proof, and there was no certificate attached to the case
that it contained all the evidence, held, that tlie Court of Appeals would
presume that the fact of the mother's death was expressly or tacitly admitted
at the trial or that it was in some way established. (Clason v. Baldwin,
152 N. Y. 204 [1897].)
The General Term will not raise presumptions in order to sustain a
judgment for the recovery of a statutory penalty. (Conly v. Clay, 90 Hun,
20 [1895].)
The decision in Chubbuck v. Vernam (42 N. Y. 432 [1870]), that in
such case the cause cannot be questioned in the Court of Appeals, reversed.
(Stoddard v. Whiting, 46 N. Y. 627 [1871].)
Uncontradicted evidence.] When uncontradicted evidence establishes
the existence of a fact essential to the plaintiff's right to recover, it will be
presumed in svipport of a judgment in his favor that such fact was found
by the referee, thovigh not so stated in his report. (Bancker v. Mayor, 8
Hun, 410 [1896].)
Presumption of consent where evidence is received without objection.]
Where evidence is received without objection, although no basis for it appears
in the complaint, and no motion is made to strike it out, the parties are
presumed to have consented that the court shall consider it, and it is the
duty of the court to consider it the same as any other evidence in the case.
(Otten V. Manhattan R. Co., 150 N. Y. 395 [1896].)
Case without findings of fact — presumption.] When a case comes up
for review without any findings of fact, the decision will be presumed to be
correct. (Viele v. Troy & Boston E. R. Co., 20 N. Y. 184 [IS59].)
Case without certificate — presumption that General Term passed on
exceptions.] The opinion of the General Term, to the effect that that court
could not consider the questions of fact on account of the absence of a cer-
tificate that the case contained all the evidence, where nothing to that effect
appears in the order or the judgment appealed from, cannot be considered by
Kule 32] General "Rules of Pkaotice. 217
the Court of Appeals, and it will be presumed that the General Term passed
upon all the exceptions appearing in the case. (Rosenstein v. Fox, 150
N. Y. 354 [1896].)
— —Where there is no evidence in the record, there is no presumption that
facts were shown other than those stated in the referee's report. (Corner
V. Mackey, 147 N. Y. 574 [1895]; Bartlett v. Goodrich, 153 id. 421 [1897].)
Presumption where decision of the court is general, and states no
findings.] Where the decision of the court below is a general one, rendered
without expressing the facts found, it is regarded as a general verdict ren-
dered by a jui-y, and the same presumption arises in its support. (Beardsley
V. N. y.. Lake Erie, etc., R. R. Co., 15 App. Div. 251 [1897].)
When statement of facts in complaint assumed to be true.] On appeal
from the judgment dismissing the complaint, all the statement of facts will
be assumed to be true. (Reynolds v. Westchester Fire Ins. Co., 8 App. Dir.
193 [1896].)
Presumption in favor of referee's report.] Every presumption is in
its favor. It is assumed to be right and to be founded upon proof of every
necessary fact. (Tomlinson v. The Mayor, 44 N. Y. 601 [1871]; Westoott v.
Fargo, 6 Lans. 325 [Gen. T. 18721.)
To what facts the presumption is confined.] The presumption indulged
by an appellate court in support of a judgment in an action tried by the
court or referee that material facts which appear in the case but are not
embraced in the express findings were found and considered, applies only to
such facts as being found would sustain the special finding:. (Armstrong v.
Du Bois, 90 N. Y. 95 [1882].)
NEW TRIAL. See notes under Rule 31, ante.
TIME — Time of making.] The ten days for making a case begin to run
from the entry of judgment and notice and service of a copy thereof.
(Schwarz v. Weber, 103 N. Y. 658 [1886]; French v. Powers, 80 id. 146
[1880].)
Where the trial is before a jury, the time runs from the time of the
trial or the motion for a new trial. (Kenney v. Sumner, 12 Misc. Rep. 86
[1895]; French v. Powers, 80 N. Y. 146 [1880].)
— — Statutory Construction Law — computation of time thereunder.
(Aultman & Taylor Co. v. Syme, 91 Hun, 632 [1895].)
Computation of time. (People v. Burgess, 153 N. Y. 561 [1897].)
Extension of time to serve exceptions does not extend the time to
appeal, or vice versa.] The extension of the time to file and serve exceptions,
or a case with exceptions, does not also extend the time to serve a notice of
appeal, nor does the extension of the time to appear per se extend the time
to file and serve exceptions or to serve a case with exceptions. (Sails v. But-
ler, 27 How. Prac. 133 [Gen. T. 1863].)
Application for an extension of time to serve papers on appeal must
be made in the court below. (Matter of Stafford, 21 App. Div. 476 [1897].)
Application for relief from default in serving a case should be made
to the court from the judgment of which the appeal is taken. (Odell v. Mc-
Grath, 16 App. Div. 103 [1897].)
218 , CouETs OF Eecoed. [Rule 32
Default in filing a case — what must be shown to open default.]
Where a party makes default in filing his case on appeal without applying
for an extension of time, not only good grounds for the delay must be shown,
but also for not having procm'ed the extension of time, in the absence of
which proof the appeal will be dismissed. (Gamble v. Lennon, 9 App. Div.
407 [1896].)
Omission to make a case.] See notes under Rule 33.
Notice of entry of judgment — what notice is insufficient.] A written
notice that " the foregoing is a copy of a judgment entered in the clerk's
ofBce of the county of St. Lawrence at Canton, N. Y., on the 29th day of
.June, 1897, at twelve o'clock noon," such copy being neither signed by the
clerk nor having inserted therein any amount of costs, is not a sufficient
notice of the entry of judgment — section 1236 of the Code of Civil Proced-
ure prescribing that a judgment " shall be signed by the clerk and filed in
his office, and such signing and filing shall constitute the entry of the judg-
ment." (Mason v. Corbin, 29 App. Div. 602 [1898].)
As to form of notice of entry of judgment.] ( See Kelly v. Sheehan, 76
N. Y. 325 [1879].)
Abandonment of case — stay until costs of prior action are paid.] A
plaintiflf having been nonsuited, with leave to move for a new trial on a case
and exceptions, served a notice on the defendant that she abandoned her case
and exceptions, and that an order to that eflfect might be entered without
notice, and thereupon commenced another action for the same cause of action;
the defendajit moved at Special Term that all proceedings on the part of the
plaintiflf in the second action be stayed until the costs in the first action should
be paid; this motion was denied on the theory that the plaintiflf's right to
review or move for a new trial could not be terminated by notice, and that
the case was still pending. The General Term reversed this ruling, and held
that the plaintiff's right to move for a new trial was abandoned by the notice,
and that the defendant could enter final judgment upon the nonsuit ; the costs
were then taxed, and the defendant entered final judgment in the first action,
and then renewed the motion for a stay in the second action at Special Term,
setting forth the proceedings since the first motion, and the motion was
granted. (Noonan v. New York, L. E. & W. R. Co., 68 Hun, 388 [1893].)
Default in having case signed and filed within ten days works an
abandonment — relief thereafter.] Default in having a case on appeal signed
and filed within ten days after it has 'been settled works an abandonment of
tlie appeal, and relief can only be had by motion in the court or branch of
the court from which the appeal was taken. (Rothschild v. Rio Grande West-
ern R. Co., 9 App. Div. 406 [1896].)
SURROGATE'S COURT — Appeal from a decision admitting a will to pro-
bate, disapproved.] An appeal from a surrogate's decree admitting a will to
probate is useless, as the same result can be obtained by an action under
section 2653a of the Code, and the practice of taking such appeals should be
discouraged. (Matter of Austin, 3o App. Div. 278 [189S].)
Surrogate's decision — how reviewed.] The provisions of the Code of
Civil Procedure regulating the method by which a review of errors on a trial
Kule 32] General Etjles of Practice. 219
before a surrogate may be secured, and providing for a loss of a right of review
unless such methods are regularly pursued, furnish and limit the only remedy
against such errors. (In re Hawley, 100 N. Y. 206 [1885].)
Clerical error.] A surrogate has power, on motion, to correct a clerical
error in a decree, where the motion does not involve a review of the decree
upon the merits. (Matter of Henderson, 157 N. Y. 423 [1898].)
Questions of law reviewed only upon ezceptions taken under Code
CiTil Procedure, section 2545.] Where a notice of appeal states that an
appeal is taken from every part of the surrogate's decree, though no excep-
tion to the decision has been filed, the court may, in a proper case, reverse
upon the facts. No question of law can be reviewed upon such an appeal,
unless exceptions have been taken as provided by C!ode of Civil Procedure,
section 2545. (Matter of Spratt, 4 App. Div. 1 [1896].)
Findings by Surrogate's Courts — authority to make.] Section 1023*
of the Code of Civil Procedure has no application to a Surrogate's Court,
which cannot, therefore, ibe required to determine particular questions before
Tendering the decision, but its authority to pass upon proposed findings after
euch rendition is expressly recognized by section 2545 of said Code. (Tilby v.
Tilby, 3 Demarest, 258 [N. Y. Sur. Ct. 1885].)
Case on appeal from — how made.] The practice upon a trial before a
Surrogate's Court of a question of fact and the preparation of papers on which
an appeal shall be heard are assimilated to the proceedings on and after the
trial of an action by the court, and for this purpose the surrogate's decree is
regarded as a judgment in an action. (Hewlett v. Elmer, 103 N. Y. 156
[1886]; Waldo v. Waldo, 32 Hun, 251 [1884].)
General Term and Court of Appeals.] The provisions of the Code on
this subject, including those defining antt limiting the questions which may be
brought up for review, are a/pplicable to an appeal from the determination of
the General Term aflfirming a surrogate's decree. (Hewlett v. Elmer, 103 N. Y.
156 [1886]; Waldo v. Waldo, 32 Hun, 251 [1884].)
Case upon an appeal from surrogate's decree must be settled.] To
entitle an appellant, on an appeal from a surrogate's decree, to a review of the
facts found by the surrogate, a case containing the evidence must be made and
settled by the surrogate, as prescribed by section 2576 of the Code of Civil
Procedure. (Matter of Walrath, 69 Hun, 403 [1893].)
'Making of a case on appeal from an informal decision of the surrogate,
does not preclude raising the question of jurisdiction. (Matter of Campbell,
88 Hun, 374 [18«5].)
Review of surrogate's decision' — without any case.] When the er-
roneous decision of a surrogate may be reviewed upon an appeal from his
decree without any case being prepared and settled. (Matter of Jackson, 32
Hun, 200 [1884].)
Right of a surrogate to extend the time for making a case.] Sections
2572 and 2577 of the Code of Civil Procedure and Rules 32 and 33 of the Gen-
eral Rules of Practice are entirely independent of each other ; the surrogate
may after the entry of the decree or order sought to be reviewed extend the
» Repealed by chapter 688 of 1894.
220 CouETs OF Eecokd. [Rule 32
time for making and serving a case, although the appeal has not been {)er-
fected, provided that the time for perfecting it is as yet unexpired. (In re
Estate of James Tilby, 1 How. Prac. [N. S.] 452 [N. Y. Sur. Ct. 1885].)
Findings of a surrogate on an accounting — how far subject to review
in Court of Appeals.] If an essential finding be made by a surrogate upon
the accounting of an executor or an administrator, without the support of any
evidence, it is an error of law, which it is the duty of the Court of Appeals to
correct. (Matter of Rogers, 153 N. Y. 316 [1897].)
Exceptions and a decision essential to the review of a surrogate's de-
cree.] An appeal from a decree of the Surrogate's Court upon an account-
ing cannot be heard where no findings were requested of the court, and there
were no exceptions filed to the rulings of the court, and no decision in writing
was filed, stating separately the facts found and the conclusions of law; and
the mere fact that there was injected into the accounting a. motion to set
aside previous decrees in no way changes the nature of the proceeding nor
obviates the necessity of the findings, exceptions and decisions. (Matter of
Account of Perkins, 75 Hun, 129 [1894].)
Exceptions essential to a review of its decree.] An appeal from a
Surrogate's Court brings up for review only questions which were raised by
the takiiig of proper exceptions — a general exception to .tho surrogate's
decree and to each and every part of it is insuflficient. (Angevine v. Jackson,
103 N. Y. 470 [1886].)
Exceptions to findings of a referee confirmed by the surrogate, raises
what question.] A surrogate having confirmed the findings of a referee, an
exception to the findings raises the question whether there was any evidence
to sustain the findings. (Matter of Humfreville, 6 Ap.p. Div. 535 [1896].)
Right of a respondent on an appeal from a Surrogate's Court to set up
defects in portions of the decree not appealed from.] In a proceeding pending
in the Surrogate's Court, the surrogate disallowed the claim of the mother of
the testatrix to a one-sixth interest in the estate, and directed the whole
residuary estate to be invested and retained by the executor until an infant
child should die or become of age. The mother did not appeal; the executor
appealed in 1880 from other parts of the decree; in her answer to the appeal
the mother alleged that said portion of the decree disallowing her claim was
erroneous. Held, that the General Term had jurisdiction to review and re-
verse the decision. Rule 42 of Supreme Court of 1878; Code of Civil Pro-
cedure, section 2587. (Freeman v. Coit, 96 N. Y. 63 [1884].)
What questions are presented on appeal from surrogate's decree.] An
appeal by administrators from a decree of the Surrogate's Court allowing
their accounts as presented, does not bring before the appellate tribunal the
question of the right of one of them, as an individual, to recover a claim made
by him against the estate. (Matter of Mayer, 84 Hun, 539 [1895].)
On appeal from surrogate's decree, what the court will not assume.]
On appeal from a decree of a surrogate, where the will is not contained in the
appeal book, the General Term will not assume that the duties of the de-
fendant-respondent, as executor and trustee, were so blended as to render a
single account proper. (Matter of Hammond, 92 Hun, 478 [1895].)
Rule 32] Geneeal Eules of Peactice. 221
Error must be shown to cause prejudice.] An appellate court should
not reverse a decree of a surrogate for an error in admitting or rejecting evi-
dence, unless it appears that the expectant was necessarily prejudiced thereby,
and it is at liberty to disregard such an error if it could have had no influence
upon the determination of the case. (Matter of Miner, 146 N. Y. 121 [1895J.
See, also. Matter of Seagrist, 1 App. Div. 615 [1896].)
Vacating decree for fraud, when justified.] A decree of the Surrogate's
Court should not be vacated for fraud, unless the facts would justify setting
aside a, judgment of the Supreme Cou-rt, in which case the fraud must be
clearly established. (Matter of Richardson, 81 Hun, 425 [1894].)
Appeal from a surrogate's decree confirming a referee's report — on
what heard.] An appeal from a surrogate's decree confirming the report of a
referee must be heard on the testimony on which the surrogate acted, and the
case cannot be amended by the Appellate Division so as to change the tran-
script of testimony which was filed; the remedy of a party dissatisfied
with such transcript is by objection in the Surrogate's Court before the motion
to confirm is made. (Matter of Dietzel, 36 App. Div. 30O [1899].)
It is the duty of one appealing from a decree of a surrogate to insert the
testimony in the case and also to furnish the pleadings and! the citations.
(Simpson v. Maney, IOC N. Y. Supp. 620. See, also, Matter of Goldsticker,
54 Misc. Eep. 175.)
Appeal from surrogate's order fixing appraisers' fees.] An order of a
Surrogate's Court fixing the fees of appraisers of the estate of a deceased tes-
tator is a final order affecting a substantial right and so is appealable to the
General Term of the Supreme Court. (Matter of Harriot, 145 N. Y. 540
[1895].)
CRIMINAL CASE — Expense of preparing the case.] When the expense
of preparing the case in a criminal cause will be charged upon the count}-.
(People V. Jones, 34 Hun, 626 [1885]. See § 485 of the Code of Civil Pro-
cedure. )
ARBITRATORS — Appeal from the decision of arbitrators — upon what
papers heard.] Appeal from an order confirming the report of arbitrators, or
from the judgment entered thereon; upon what .papers it must be heard; no
case can be proposed or served. (Matter of Poole v. Johnston, 32 Hun, 215
[1884].)
SETTLEMENT — Before what judge — presumption that it was correct.]
While a bill of exceptions in a criminal action ought regularly to be settled
by the judge before whom the indictment was tried, the parties may consent
that the settlement be had at a subsequent term before the judges then com-
posing the eourt, although not the ones who sat upon the trial. A bill of ex-
ceptions so settled was returned upon the writ of error. It did not appear
that there was any objection to the settlement at the time it was made, or
that any application was made to correct the record upon the ground that the
bill of exceptions was improperly inserted. Held, that the presumption was
that the settlement as made was consented to, and an objection to the regu-
larity thereof upon the argument of the case in the Court of Appeals would
not be entertained. (Wood v. People, 59 N. Y. 117 [1974].)
222 Courts of Eecoed. [Eule
?A
Stenographer's minutes to be produced.] Where the proposed amend-
meats seek to strike out a large quantity of testimony actually taken, the
court should refuse to settle the case unless the" minutes of the official stenog-
rapher are submitted to him. (Kamermann v. Eisner & Mendelaon Co., 25
Misc. Eep. 405 [1898].)
Power of the trial judge to strike out evidence.] Upon the settlement
of a case on appeal the trial judge has no power to strike out evidence which
the appellant regards as material where facts are not or cannot be disputed,
but the certificate of a trial judge is conclusive as to the occurrences at the
trial when the facts are disputed. (Healey v. Terry, 26 N. Y. St. Eep. 929
[N. Y. City Ct. 1889].)
Power of a justice to strike out exceptions from a case as filed.] A
justice out of court has no power to make an order striking out exceptions
to the findings, and refusals to fin<i, of the court in an equity case from the
judgment-roll and a case on appeal as filed. (Pettit v. Pettit, 20 Wkly. Dig.
154 [Sup. Ot. 1884].)
Judge's decision conclusive.] The settlement by the trial judge of the
case on- appeal upon a dispute as to what occurred is conclusive. (Balz v.
Shaw, 11 Misc. Eep. 444 [1895].)
Unless the denial of a substantial right is apparent, the decision of the
trial judge in settling a case on appeal is conclusive. (James v. Work, 51
N. Y. St. Eep. 323 [Supr. Ct. 1893].)
When trial judge will not settle case.] The trial judge will not settle
a case which does not comply with the rule requiring the evidence to be re-
duced to narrative form, and the rulings excepted to, to be formally stated,
followed by a formal statement that the same was excepted to. (Donai v.
Lutjens, 20 Misc. Eep. 221 [Sup. Ct. Sp. T. 1897].)
Case and amendments — when legally settled.] Cases and amendments
upon appeal are not legally settled under the rules of court imtil they have
been approved and ordered on file by the trial judge, and that whether the
parties have agreed upon the settlement or not. (Gelinka v. Kranskopf, 3
N. Y. Wkly. Dig. 426 [N. Y. Marine Ct. 1876].)
Omission of stenographer to note an exception — remedy.] Where a
stenographer omits to note an exception, the remedy is by moving to resettle
the case, and not by vacating the judgment. (Tonert v. Mayor, 1 Abb. N. C.
302 [Chamb. 1876].)
Omission in stenographer's minutes.] It is no answer to a motion to
correct a case by inserting matters alleged to have taken place on the trial,
that they do not appear in the stenographer's minutes. It is the trial judge's,
and not the stenographer's, duty to settle a case. (Foster v. Standard Nat.
Bank, 21 Misc. Eep. 8 [1897].)
Failure to settle a case.] WHiere a case upon appeal has never been
settled nor ordered on file by any one who participated in any portion of the
proceedings it must be stricken from the calendar. (Williams v. Lindblom,
87 Hun, 303 [1895].)
Failure to renotice case for settlement, after death of attorney — dis-
missal of appeal refused.] Where a case on appeal had been served, and re-
Rule 3'2] General Rules of Peactioe. 223
spondeat's attorney died and anotlier attorney was substituted, and no pro-
ceedings were taken to liave the case settled, held, that while the appellant
was chargeable with laches in failing to renotice the case for settlement, an
absolute dismissal of the appeal would not be ordered, no order directing the
case to be filed or declaring it abandoned having been procured by respondent.
(N. Y. Land & Improvement Co. v. Chapman, 14 Misc. Eep. 187 [N. Y. Supr.
Ct. 1895].)
An appeal should not be dismissed for failure to settle case.] An ap-
peal should not 'be dismissed for failure to procure the case to be settled and
signed, since the appellant may appeal upon the judgment- roll alone. (Brush
V. Blot, 11 App. Div. 626 [1896].)
Appeal not considered on a case not settled.] An appeal from a judg-
ment entered on the report of a referee will not be heard when the case con-
tains neither the certificate of the clerk required by section 1353 of the Code
of Civil Procedure nor evidence that it has been settled. (Dwight v. Ebnira,
Cortland, etc., R. R. Co., 29 St. Rep. 250 [Sup. Ct. 1890].)
Referee's certificate cannot be waived.] A stipulation contained in a
case signed by the attorneys for the respective parties, waiving certification of
the case and exceptions, and' consenting that the same be filed, does not cure
the defect arising from the failure to have the case and exceptions settled by
the referee before whom the action was tried. (Bonnefond v. DeRussey, 73
Hun, 377 [1893].)
Mandamus to compel settlement.] A mandamus is the proper mode of
compelling a referee to settle sC case. (People v. Baker, 14 Abb. 19 [Sp. T.
1861]; S. C, 35 Barb. 105.)
Remedy — by motion.] If a referee refuses to insert proper matter in
the case, the remedy is not by appeal, but by motion in the court below to
compel him to do so. (Lefler v. Field, 47 N. Y. 407 [1872]; Van Slyke v.
Hyatt, 46 id. 259 [1871], dismissing appeal from S. C, 9 Abb. Pr. [N. S.] 58.)
Exceptions need not be signed or sealed by judge.] The exceptions
taken need not be signed or sealed by the justice before whom the trial was
had. (Zabriskie v. Smith, 11 N. Y. 480 [1854].)
A case in a criminal cause cannot be settled by stipulation.] Practice
on appeal in criminal cases — the case cannot be settled by stipulation of the
attorneys. It m.'ust be settled by the judge and filed with the court. (People
V. Eradner, 44 Hun, 233 [1887].)
RESETTLEMENT — Motion, where to be made.] An application for a re-
settlement of a bill of exceptions must be made to a justice at Special Term,
notwithstanding an appeal is .pending in the Court of Appeals; and it is not
necessary to apply first to that court to have the cause remitted to the
Supreme Court. (Whitbeck v. Wayne, 8 How. Prac. 433 [Gen. T. 1853] ; Tal-
cott V. Rosenberg, 3 Daly, 203-213 [Gten. T. 1870] ; S. C, 8 Abb. [N. S.] 287;
Gould V. Glass, 19 Barb. 179 [Gen. T. 1855]; Luysten v. Sniffcn, I id. 428
[Sp. T. 1847]; S. C, 3 How. Prac. 250; Graham v. The People, 63 Barb. 468-
474 [Gen. T. 1872]; contra, Adams v. Bush, 2 Abb. [N. S.] 118 [Gen. T.
1865].)
224; CoxTETS OF Eecoed. [Rule 32
Power of court to resettle case, not exercised to insert a memorandum
01' trial judge.] The power ef the court to resettle a case on appeal, after a
hearing and reversal in furtherance of justice, held not to be exercised to
insert a memorandum of the trial judge, where a new trial was in any event
desirable. (Hix v. Edison Electric Light Co., 12 App. Civ. 627 [1896].)
Where exceptions should be noted in the record on resettlement.] Upon
resettlement the appellant is entitled only to have the exceptions noted in the
exact place on the record at which they were taken, and where the stenog-
rapher's notes show that they were taken at the close of the body of the
requests to charge, held, that they should be inserted there and not elsewhere.
(Zimmer v. Met. St. Ry. Co., 28 App. Div. 504 [1898].)
Order to recite that it was made on a private stenographer's minutes.]
Where a motion to resettle a case is made on a private stenographer's minutes,
the order must recite, although the court rejects them. (Deutermann v. Pol-
lock, 38 App. Div. 493 [1899].)
Argument suspended to allow motion for resettlement.] An argument
may be suspended by the Court of Appeals in order to allow a motion to be
made for a resettlement of the case. (Rice v. Isbane, 1 Keyes, 44 [1863].)
City Court of New York — power of its Special Term to order resettle-
ment.] The Special Term of the New York City Court may direct a case on
appeal to be sent back to the trial justice for resettlement, if it deems it
proper, but it cannot direct that it be resettled in a specified manner. (Mason
V. Tietig, 22 Misc. Rep. 557 [188].)
On motion for a new trial, the judge may amend the case.] On the
argument of a motion for a new trial on a case, the judge can amend it so as
to agree with his minntes. (Toplitz v. Raymond, 10 Abb. 60 [M. Y. Com. PI.
Sp. T. 1859].)
After decision of appeal, too late.] After the decision of an appeal
it is too late to move for a resettlement of the case (Fish v. Wood, 2 Abb. 419
[Gen. T. 1856]; Kettle v. Turl, 14 Misc. Rep. 637 [1895]; nor can a bill of
exceptions be altered after argument and judgment. (Fitch v. Livingston, 7
How. Prao. 410 [Court of Appeals, 1853].)
After decision of General Term, and appeal to Court of Appeals.]
After a cause has been heard and determined by the Creneral Term, and an
appeal taken to the Court of Appeals, it is too late to send the case back for
an entire resettlement. Specific errors and omissions may, however, be cor-
rected and supplied. (Catlin v. Cole, 19 How. Prac. 82 [Sp. T. I860]; S. C.
10 Abb. 387.)
Effect of not entering order made on motion for resettlement.] Until
the entry of another order upon the judge's decision on the application for a
resettlement, there is no order remaining in force or effect. This, although
the judge in deciding the application for a resettlement refuses to disturb the
first order. (Star Insurance Co. v. Godet, 2 Jones &. Spencer, 359 [Gen. T.
1872].)
Appeal from order densang a resettlement of a case.] No appeal will
lie from an order denying a imotion to resettle the case on appeal. (Klein v.
Second Avenue Railroad Co., 53 Supr. Ct. [J. & S.] 531 [1886].)
Kule 32] General Rules of Practice. 225
When an order denying a motion for a resettlement is appealable.]
Upon the trial of an action the court excluded all evidence to be offered by
the defendant in support of a counterclaim set up in his answer. A motion to
have the case resettled and to have the ruling of the court excluding such
evidence and the exception of the defendant thereto inserted, was denied.
Held, that this wa,s error. That as the right of the party to review the action
of the court below was absolute, so also was his right to have a complete and
accurate statement of the matters determined against him set forth in the
case; and as this was a substantial right, an order affecting it was appealable.
(Gleason v. Smith, 34 Hun, 547 [1885].)
When appeal lies from order denying resettlement, and resettlement is
ordered. Place for noting exceptions. (Zimmer v. Met. St. Ry. Co., 2S App.
Div. 504 [1898],)
Rule on review of an order denying a resettlement.] The appellate
court should not reverse an order denying the resettlement of a case where it
is apparent that the result would not .be affected by inserting the additional
matter, although it should not, simply to sustain the order, assume that the
trial judge had other proof as to the matter in question than that contained
in the affidavits upon which the order of denial was made, and in which affi-
davits the statements of both sides agree in respect to the point in controversy.
(Green v. Shute, 27 St. Rep. 816 [N. Y. Com. PI. 1889], affg. Id. 69].)
Narrative form — resettlement.] The court may send a case back for
resettlement when the testimony has not (been changed to narrative form, as
required by Rule 34 of the General Rules of Practice. (Shaw v. Bryant, 47
St. Rep. 227 [Sup. Ct. 1892].)
Resettlement — to insert argument of counsel.] A resettlement of the
case will not be ordered to permit the insertion of an argument of counsel
indicating the possible interest of a witness who has testified only to the
execution of the assignment of the cause of action, which has been admitted
without objection, and is admitted to be valid between the parties. (Levy v.
Dennett, 25 Misc. Rep. 307 [1898].)
Resettlement in a particular way, not ordered.] The Special Term
cannot compel a referee to settle a. proposed case on appeal in a particular
way, but may, under proper circumstances, send it back to the referee for re-
settlement. (Ross V. Ingersoll, 35 App. Div. 379 [1898].)
Resettlement ordered on account of absence of papers.] All papers read
or used upon a motion upon either side must be specified in the order result-
ing; and in the case of apparent absence of a paper on a hearing of the appeal
from the order, the Appellate Division will order its resettlement. (Farmers'
National Bank of Annapolis v. Underwood, 12 App. Div. 269 [1896].)
Recollection of judge.] In settling a ease on exceptions, when it does
not appear that the action of the trial justice in striking out from the case a
ruling and exception thereto deemed material, was based upon his own recol-
lection, the appellant's motion for a resettlement should be granted when the
affidavits are clear and specific that such ruling was made and the stenog-
rapher's affidavit is that the minutes furnished by him were a correct tran-
script of his stenographic notes. (Jenkins v. Bishop, 133 App. Div. 517.)
15
226 Courts of Recced. [Rule 32
As to settlement of case on appeal in the first department, see Henry v.
Interurban St. Ry. Co., 115 App. Div. 352. See, also, Volhard v. Volhard, 115
id. 548 ; Knobloch v. Taube, 53 Misc. Rep. 543.
CORRECTION — Power of judge to correct his charge.] A judge has a
right to correct his charge as presented by a case, even though the parties
may have agreed upon it. (Root v. King, 6 Cow. 569 [1827]; Walsworth v.
Wood, 7 Wend. 483 [1832].)
When appellant should be allowed to amend case as a matter of favor.]
Where respondent concedes that in fact the case on appeal contains all the
evidence, appellant should be allowed, as a matter of favor, to amend the case
by inserting a statement to that effect. (Martin, Bing & Co. v. Baust, 23
App. Div. 234 [1897].)
A judge may correct a case after it has been filed.] A trial judge who
has ascertained that a case does not state the occurrences upon the trial in
accordance with the facts, has authority, upon notice to the parties, or their
counsel, to correct such case, even after it has been filed pursuant to a stipu-
lation of the attorneys. (McManus v. Western Assurance Co., 40 App. Div.
86 [1899].)
Respondent not to serve a new case by way of amendment.] Where a
proposed case is served, it is irregular for the adverse party to serve a case
drawn by himself as a substitute, by way of amendment. ( Stuart v. LaFarge,
4 Bosw. 616 [Sp. T. 1859]; S. C, 3 id. 657.)
Where no facts were found by trial court.] On appeal from a judg-
ment in an action tried by the court without a jury, in which no findings of
fact had been made, held, that the hearing should be suspended until such
findings were supplied. (Watson v. Barker, 16 Abb. 203 [Gen. T. 1863].)
Omission of referee's findings — appeal dismissed.] When a case
omitted the referee's findings the appeal was dismissed by the Court of Appeals.
(Bissell V. Hamlin, 13 Abb. 22 [Gen. T. 1860].)
The General Term in such a case suspended the argument until they
could -be supplied. (Watson v. Barber, 16 Abb. 203 [Gen. T. 1863].)
Omission of referee's opinion — argument postponed.] When a referee's
opinion was omitted, the argument of the appeal was postponed in order to
enable the party to bring it before the court. (Warren v. Warren, 22 How.
Prac. 142 [Gen. T. 1861].)
Defective case, when sent back for correction.] A case will be sent
back for correction when it is so imperfect that the question in dispute cannot
be properly examined. (Matter of Strasburger's Estate, 27 St. Rep. 509
[Sup. Ct. 1889].)
Where an exception by defendant puts upon the plaintiff the responsi-
bility of adding hy amendment to the case.] Where there is no statement
that the case on appeal contains all the evidence, but an exception appeai-s to
the daaiial of the motion to dismiss the complaint, the exception is a notice
to the plaintiff of an intention to raise the question of the sufli;iency of his
proof, and puts upon him the responsibility of adding to the case, by amend-
ment, any npoded proof in support of the ruling excepted to. (Wynne v.
Haight, 27 App. Div. 7 [1898].)
Eule 32] General Eules of Peactice. 227
Errors in the printed case disregarded — unless corrected on motion.]
Errors in the printed case will be disregarded unless corrected by motion at
Special Term, hefiore the case is brought on for argument. (Hackley v. Draper,
2 Hun, 523 [1874].)
Correction is the proper remedy where different papers are used on
appeal.] If the printed papers to be used on appeal were not the papers on
which the order below is granted, the remedy is to move in the appellate court
to correct the printed papers filed and. served, not to strike out from the appeal
papers an affidavit which varied fromi that used below. (People ex rel. Mulli-
gan V. Collis, 8 App. Div. 618 [1896].)
Jurisdiction of the Supreme Court over a case in the Court of Ap-
peals — power to make amendment to case.] Although a copy of the record
has been filed with the clerk of the Court of Appeals, on appeal to it, the court
below so far retains jurisdiction of the case as to enable it to make such amend-
ment as it shall deem proper, and to order the amemdment to be duly certified
to, and filed with the said clerk, and, when duly filed, is to be regarded as part
of the original return. A motion, therefore, to remit for the purpose of per-
mitting the court below to amend the record, if it should desire to do so, is
necessary and should be denied. (Peterson v. Swan, 119 N. Y. 662 [1890].)
Appeal to Court of Appeals — power of Trial Term to amend case.]
Upon an appeal to the Court of Appeals, the Trial Term may not amend the
case used at General Term, without the approval of the latter. (Clendenning
V. Lindner, 64 St. Rep. 623 [1895].)
Case not corrected by Court of Appeals.] Where a case is made for
the purpose of an appeal to the General Term and findings are improperly or
incorrectly contained therein, a motion for correction of such case must be
made in the Supreme Court. The Court of Appeals cannot correct such a case,
as it has only to do with the case presented. (Binghamton O. H. Co. v. City
of Binghamton, 156 N. Y. 651 [1898].)
Not for the purpose of reversing a judgment.] The pleadings will not
be amended on appeal for the purpose of reversing a judgment. (Volkening v.
De Graaf, 81 N. Y. 268 [1880].)
Amending record pending an appeal to the General Term — Special
Term cannot.] After an appeal is taken to the General Term of the Supreme
Court from a judgment of a County Court reversing a judgment of a justice
of the peace, the Special Term of the Supreme Court has no power or jurisdic-
tion to make an order requiring an amendment of the justice's return, nor to
amend the printed ^papers on appeal to the County Court, nor to add to the
record papers not contained in the printed case. The application to perfect
an alleged defective record should be made to the court whose record is sought
to be reviewed, and the appellate court may stay the argument of appeal until
the party applies to the court below to have the record corrected. (Pratt v.
Baker, 88 Hun, 301 [1895].)
At General Term — not proper.] There is no practice which will
justify the court at General Term in correcting the case as settled on motion.
(Porter v. Parks, 2 Hun, 675 [1874].)
228 Courts of Regoed. [Rule 32
Case not corrected at General Term.] A case which has been settled
on motion will not be corrected by the court at General Term. (Porter v.
Parks, 2 Hun, 675 [1874].)
Amendment by appellate court.] A change of judges does not prevent
the General Term from amending its record. (Buckingham v. Dickinson, .54
N. Y. 682 [1874].)
Not to obtain a reargument.] The court at General Term will not
allow a case to ^be amended and a reargument to be had thereon. (Wright v.
Terry, 24 Hun, 228 [1881].)
Amendments by Appellate Division.] The Appellate Division has no
authority to entertain, as an original application, a motion to have amend-
ments to a proposed case on appeal, allowed by the referee, disallowed, and to
have certain other proposed amendanents granted. (Eoss v. Ingersoll, 35 App.
Div. 379 [1898].)
When a case should be sent back for amendment.] In the absence of a
stipulation amending the return of a case on appeal, it should be sent back to
the trial judgo for amendment upon a motion of the court itself, where it is
apparent that an erroneous statement has been made as to the date of the
judgment. (Baldwin v. Thibaudeau, 39 St. Rep. 54 [N. Y. Com. PI. 1891].)
Of case after argument not allowed.] (People v. Board of Apportion-
ment, 1 Hun, 123 [1874]; Hackley v. Draper, 2 id. 523 [1874].)
Motion to amend is the proper remedy when the return of the court
below does not include the judgment in extenso. (Gates v. Williams, 10 ilisc.
Eep. 403 [1894].)
Of case after final decision in Court of Appeals, not allowed.] An
amendment of the record nunc pro tunc, on an. a,pplioation to the Supreme
Court after a final decision in the Court of Appeals, will not be allowed.
(Drake v. New York Iron Mine, 38 App. Div. 71 [1899].)
On motion for a new trial.] On the argument of a motion for a new
trial on a case, the Judge can amend it so as to agree with his minutes. (Top-
litz V. Raymond, 10 Abb. 60 [N. Y. Com. PI. Sp. T. 1859].)
Amendment after argument and decision.] A case may be amended,
even after argument and decision, in the appellate court. (O'Gorman v.
Kamak, 5 Daly, 517 [Gen. T. 1873].)
Amendment, when not allowed after decision of appeal at General
Term.] A case will not be amended after a decision at ihe General Term, on
the ground that such amendment would show that a point decided against
the party seeking such amendment has been waived. (People ex rel. Baker v.
Board of Apportionment, 1 Hun, 123 [1874].)
Statement of facts under Code of Procedure, § 333 — where corrected.]
Where a judgment is rendered by the General Term, upon a. verdict taken,
subject to the opinion of that court, and a statement of facts is prepared in
accordance with section 333 of the Code of Civil Procedure, which statement is
defective, it must be sent back to the Supreme Court for correction. ( Jaycox
V. Cameron, 49 N. Y. 645 [1872] ; Smith v. Grants 17 How. Prac. 381 [Gen. T.
1859].)
Kule 32] Genebal Kules of Peacticb. 229
Amendment to case, where the fact was in dispute.] When upon the
trial, there was an issue as to whether an action was first commenced as an
equity suit, and the plaintiff thus prevented from bringing an action for fraud,
the defendant cannot amend his case upon appeal, by inserting in the summons
the words "in equity suit." (James v. Work, 51 St. Rep. 323 [Sup. Ct.
1893].)
Amendment will not be made to show statement of counsel.] The case
will not be amended to show a simple statement of counsel, merely an asser-
tion of his view of the law as applicable to the facts. (Matter of Levy's Will,
91 App. Div. 483; affd., 179 N. Y. 603.)
EXCEPTIONS — Necessary for review.] Wlien a point not taken on the
trial cannot be raised on appeal. (Heela Powder Co. v. Sigua Iron Co., 157
N. Y. 437 [1899]; Fallon v. Lawler, 102 id. 28 [1886]. (See Gernon v. Hoyt,
90 id. 631 [1882] ; Wellingboji v. Morey, Id. 656 [1882] ; McKean v. Adams, 11
Misc. Rep. 387 [N. Y. Com. PI. 1895] ; German American Bank v. Daly, 83
Hun, 608 [1895] ; Kingston Carriage Co. v. Hutton, 69 St. Rep. 190 [Ulster
County Ct. 1895].)
Requisites to objections and exceptions.] An objection to the admis-
sion of evidence is not available in the a;bsenee of an exception to the ruling
made. An exception following an objection which did not state the grounds
thereof is nugatory. (Strong v. The Prentice Brovsoi Stone Co., 10 Misc. Rep.
380 [N. Y. Com. PI. Gfen. T. 1894].)
An objection taken to the admission in evidence, upon the trial of an
action, of the assignment of a claim executed by a corporation under its seal
and signed by its president and duly acknowledged, and the authority to sign
and the genuineness of the seal sworn to by him, on the ground that it is in-
competent and immaterial, is not sufficient to present the question that the
assignment is inadmissible in evidence on the ground that it is a void instru-
ment, because it has not been shown to have been the aet of the corporation
by proof of the resolution which authorized it. (Eder v. Gildersleeve, 85 Hun,
411 [1895].)
An objection taken after the question has been answered should not be
considered in the absence of anything to show that it could not have been taken
in time. (Perkins v. Brainard Quarry Co., 11 Misc. Rep. .328 [1895].)
Necessity of objection and exception.] Where, upon the trial of an
action, after a response has been made to a question asked of a witness, an ob-
jection is made to the admission of such testimony by the attorney for one
of the parties, no question is presented thereby to be reviewed upon appeal if
no ruling be made upon the objection, no exception be taken and no motion
be made to strike out the testimony given. (Brand v. Newton, 82 Hun, 550
[1894].)
The conclusions of law cannot be reviewed in the absence of an excep-
tion. (Matchett v. Lindberg, 2 App. Div. 340 [1896].)
To present questions of law for review by City Court.] Upon appeal
from the City Court of New York ^ reversal can be had only for an error of
law presented by due exception. (Western National Bank v. Flannagan, 14
Misc. Rep. 317 [1895].)
230 CoTJETs OF Eecobd. [Rule 32
To the review by the Appellate Term of a judgment by the General
Term of the City Court.] An exception taken to the denial of a motion to
dismiss the complaint, at the close of plaintiff's case, is unavailing if the
motion is not renewed at the end of the entire case. (Scott v. Yeandle, 2«
Misc. Rep. 89 [Sup. Ct. App. T. 1897].)
• The Appellate Term can review facts and grant new trials only on
exceptions taken in proper form and at the right time. (Manning v. West,
19 Misc. Eep. 481 [Sup. Ct. App. T. 1897].)
An appellate court will not review points not raised by a proper excep-
tion. (Rheinfeldt v. Dahlman, 19 Jlisc. Rep. 162 [Sup. Ct. App. T. 1897].)
On appeal from an order denying a new trial.] Upon an appeal from
an order denying a- motion made for a. new trial of an action an appellate
court will disregard the failure of the party against whom the judgment was
rendered to take exceptions to portions of the charge of the trial court, if it
is satisfied that injustice has been done. (Raven v. Smith, 87 Hun, 90 [1895] ;
Interstate Steamboat Company v. First National Bank of Syracuse, 87 id. 93.)
Not to be first raised on appeal.] Objections not raised below cannot
be first raised on appeal. (Dey v. Prentice, 90 Hun, 27 [1895]; Sheehy v.
Utah, etc.. Stage Co., 15 Misc. Rep. 21 [N. Y. Supr. Ct. 1895] ; Hoff v.
Coumeight, 14 id. 314 [N. Y. Com. PI. 1895] ; Stevenson Co. v. Tucker, Id. 297
[N. Y. Com. PI. 1895]; Side v. Brenneman, 7 App. Div. 273 [1896]; Thelberg
V. Nat. Starch Mfg. Co., 2 id. 173 [1896].)
Failure to file exceptions to the conclusion of the referee, and the
decision of the court as to costs, prevents raising the question upon appeal.
(Wildey v. Robinson, 85 Hun, 362 [1895].)
Necessity of exceptions to a decision of fact.] Where a finding of
fact is made by the court without evidence to support it, an exception is
necessary to bring the case up for review, as the question whether there .
was evidence to support the finding ia one of law, and if in such case no excep-
tion is taken to the ruling of the trial court and filed as required by the Code
of Civil Procedure, and no exception is taken to the conclusion of law that the
complaint be dismissed, the judgment entered upon such decision will be
aflSirmed on appeal. (Smith v. Moulson, 88 Hun, 147 [1895]; Code of Civ.
Pro., § 994.)
Where the parties appealing from a judgment fail to serve or file excep-
tions to the decision of the Special Term upon which the judgment was
entered they* are not, upon appeal, in a position to challeHge the findings of
fact or conclusions of law of that court. (Miller v. Larmer, 85 Hun, 313
[1895].)
An exception to a decision of a Special Term, made under Code of Civil
Procedure, section 1022, is necessary to present the question for review, and in
the absence thereof the judgment entered upon the decision must be afiarmed.
(Price V. Levy, 26 App. Div. 620 [1898].)
Referee's decision not reviewable without exceptions.] A referee's de-
cision cannot be reviewed by the Appellate Division in the absence of excep-
tion. (Van Vleck v. Ballon, 40 App. Div. 489 [1899]; Goldstein v. Guedalia,
Id. 451 [1899].)
Eule 32] Geneeal Rules of Peactice. 231
What reviewable where no exceptions are filed to a decision.] An
appeal from a judgment entered upon a decision stating separately the facts
found and the conclusions of law, to which decision no exception has been
filed, brings up for review only the rulings to which exceptions were taken on
the trial. (Lanier v. Hoadley, 42 App. Div. 6 [1899].)
Evidence taken on a reference — objection to, on another trial ] When,
upon the tria,l of an action, one of the parties thereto seeks to read evidence
taken before a referee in a manner mot provided by law, the adverse party,
although he has appeared and participated in such examination before the
referee, has the right to object to its introduction, and the overruling of an
objection thus taken is erroneous. (Crumble v. The Manhattan Railway Co.,
83 Hun, 1 [1894].)
Must be taken to determination of officer having power to decide.]
Exceptions to a report, made pursuant to a reference to take evidence and re-
port it to the court with the opinion of the referee thereon, are unavailing.
The exceptions can be taken only to the determination of some court or officer
having power to decide the question, the decision of which is challenged.
Doiemus v. Doremus, 76 Hun, 337 [1894].)
Failure to file — effect of.] If a party neglects to except to a referee's
report for eight days after notice of its filing, it becomes absolute, although it
be defective on its face. (Catlin v. Catlin, 2 Hun, 378 [1874].)
Unless exceptions be taken to the report of a referee appointed to take
proof of title in a partition suit no appeal can be taken to the Court of
Appeals. (Piatt v. Piatt, 105 N. Y. 488 [1887].)
-When a fa,ilure to take exceptions prevents raising conclusion of law. •
(Smith V. Moulson, 88 Hun, 147 [1895].)
Appeal from a judgment entered on a verdict.] An appeal from a
judgment entered on a verdict must be determined solely upon exceptions taken
on the trial. (Third Ave. R. R. Co., v. Ebling, 100 N. Y. 98 [1885] ; People v.
Boas, 92 id. 560 [1883]; People v. McGloin, 91 id. 241 [1883].)
Exceptions to findings of fact — when good.] Under the Code of Civil
Procedure no exception lies to a finding of fact unless it be wholly unsup-
ported by evidence, nor does any exception lie to a refusal to find a fact as
requested. (Porter v. Smith, 35 Hun, 118 [1885].)
Failure to request a finding of fact precludes a review of the evidence,
but an exception to a finding of fact, unsupported by proof, raises a question
of law. (McEntyre v. Tucker, 10 Misc. Rep. 669 [N. Y. Com. PI. 1895].)
Failure to except to findings of fact, and conclusions of law.]. ^Aliere
the case was tried by the court and there was no exceptions to the findings of
fact or conclusions of law, the trial being before the statute dispensed with
findings, held, that an appeal should be dismissed. (Baird v. Spence, 10 Misc.
Rep. 772 [N. Y. Com. PI. 1894].)
The findings of fact must sustain the judgment — otherwise an excep-
tion to the legal conclusion is good.] It Is essential to the support of a judg-
ment in an action tried by the court, that the findings of fact establish a legal
right on the part of the successful party to the relief granted, and when they
do not, and there is nothing in the evidence to show such right, an exception
to the legal conclusion of the court, directing judgment, presents the question
on appeal. (Moores v. Townshend, 102 N. Y. 387 [1886].)
232 CouKTs OF Recoed. [Rule 32
Exception to a conclusion of law sustained by the finding of fact.]
An exception in terms to the referee's conclusion of law cannot avail the party
excepting, if such conclusion was required by the findings of fact on which it
was based. (Daniels y. Smith, 130 N. Y. 696 [1892].)
Exceptions to the decision of the referee present errors of law only.
(Miller v. Altieri, 13 Misc. Rep. 220 [X. Y. Com. PI. 1895].)
Wliere there are no exceptions to a conclusion of law of a referee, but
only to certain findings of fact, his decision cannot be reviewed. (Talbert v.
Storum, 7 App. IMv. 456 [1896].)
Exceptions to findings of fact and conclusions of law.] Where the
trial is without a jury, and the trial judge has filed findings of fact and con-
clusions of law, and the judgment is destitute of evidence to support it, excep-
tions to the findings of fact and conclusions of law, present questions of law
which the Appellate Term may review. (La Pasta v. Weil, 20 Misc. Rep. 554
[Sup. Ct. App. T. 1897].)
Exceptions to findings of fact — improper.] Exceptions need not be
taken to findings of fact. (Mead v. Smith, 28 Hun, 639 [1883] ; Metropolitan
Gas Light Co. v. Mayor, 9 id. 706 [1877] ; Roe v. Roe, 14 id. 613 [1878].)
Failure to except to conclusion of law.] Where, at the trial, certain
personal property was determined, as a matter of law, not to be fixtures, and
mo exception or request for submission to the jury appeared from the record,
held, that the conclusion reached at the Circuit must be accepted on appeal.
(Scobell v. Block, 82 Hun, 223 [1894].)
In absence of exceptions, an appeal presents no question to the court.]
In the absence of exceptions an appeal from a judgment presents no question
for the consideration of the court, and must be dismissed. (Smith's Exrs. v.
Starr, 4 N. Y. Wkly. Dig. 498 [Court of Appeals, 1877] ; Standard Oil Co. v.
Amazon, 9 id. 465 [Court of Appeals, 1880].)
To incompetent evidence — as effective in equitable action, as in
actions at law.] There ia no distinction between legal and equitable actions,
or between actions tried by a jury or a court, in respect to tho availability of
exceptions taken upon the trial upon the admission of incompetent evidence.
In any case an error in receiving such evidence, if properly excepted to, can
only be disregarded when it can be seen that it could do no harm. (Foote v.
Beecher, 78 N. Y. 155 [1879]; People v. Strait, 154 id. 165 [1897].)
Equity cases — when an error is not available.] In an equity case a
new hearing will not be granted, nor will a judgment be reversed, on the ground
jthat evidence was improperly rejected on the trial if the court is satisfied
that its reception would not have changed the result. (In re N. Y. C. & H.
R. R. R. Co., 90 N. Y. 342 [1882] ; Wyse v. Wyse, 155 id. 367 [1898].)
Exception to evidence in equity causes, v/hen disregarded.] In equity
causes exceptions to evidence should be disregarded unless the appellant can
show that injustice has been drne upon the whole case, or that the rulings
complained of may have affected the result. (Tuerk Hydraulic Power Co. v.
Tuerk, 92 Hun, 65 [1895].)
Exceptions to evidence on trial of issues in an equity case — when not
available on appeal.] Where, in an equity action, issues are tried by a jury
Rule 32] General. Rules of Practice. 233
and exceptions taken to the admission of evidence and a case containing the
evidence, given on such trial of the issues, is received in evidence without
objection before the judge deciding the case, on an appeal from his judgment
the exceptions taken to the admission of evidence before the jury are not
available. (Arnold v. Parmelee, 97 N. Y. 652 [1885].)
Mode of reviewing questions of fact and of law, after a trial by the
court without a jury.] The only way in which questions of law and fact
can be brought up for review after a trial by the court without a jury, is by
filing exceptions to the decision, and an appeal from an order denying a
motion for a new trial, assuming to be made upon the judge's minutes, which
motion is only permissible after a jury trial, raises no question for review.
(Waydell v. Adams, 23 App. Div. 508 [1897]. See, also. May v. Menton, 21
Misc. Rep. 321 [Sup. Ct. App. T. 1897].)
Exception to a direction of a verdict, after the close of the trial.] In
order to obtain a review under sections 994 and 1185 of the Code of Civil
Procedure, the unsuccessful party must, within ten days after service of a
copy of the decision of the court upon him, file a notice of exception. Failure
to do this and to appeal from an order denying a new trial, prevents the
appellate court from reviewing the determination of the trial court in direct-
ing a verdict, and only the exception taken on the trial can be considered.
(Elliott V. Van Schaick, 26 App. Div. 587 [1898].)
When there is nothing to review.] The appellate court has nothing to
review when no valid exception is contained in the record, nor an order deny-
ing a new trial, nor an appeal from an order of denial. (Cohen v. Mayor,
etc., of N. Y., 35 St. Rep. 555 [Sup. Ct. 1890] ; affirmed, 128 N. Y. 594; Tall-
madge v. Whitman, 11 Hun, 3C7 [1877].)
Exceptions — failure to file to a referee's report.] An objection that
a referee's report cannot be impeached because no exceptions were filed
thereto, is not available on appeal, where the motion based thereon was made
upon an order to show cause, of less than eight days, which makes no
reference to a failure to file exceptions, and it does not appear that such
objection was raised on the hearing. (Nichthauser v. Lehman, 17 Misc.
Rep. 336 [1896]. See Catlin v. Catlin, 2 Hun, 378 [1874].)
Evidence excepted to, subsequently stricken out — effect.] Where
improper evidence has been received under objection and exception which
subsequently on motion of the party against whom it was offered is stricken
out, this is to be deemed an abandonment of the exception and such party
may not have the benefit of it on appeal. (Price v. Brown, 98 N. Y. 388
[1885]; People v. McCarthy, 110 id. 309 [1888].)
A motion to strike out evidence, not one of legal right.] A party who
has permitted the reception of improper evidence without properly objecting
thereto has not a legal right to thereafter object to the same and have it
stricken out. (In re Morgan, 104 N". Y. 74 [1887].)
Exception to denial of motion to amend answer on trial, unavailing.]
After the close of his case, defendant moved for leave to amend his answer
by the allegation of facts constituting a separate and distinct offense. His
motion was denied and he took an exception. Held, that this was a matter
234 'CouETs OF Record. [Rule 32
within the discretion of the trial court, and that the exception was of no
avail before the Appellate Term. (Frischman v. Zimmermann, 19 Misc. Eep.
53 [Sup. Ct. App. T. 1896]. See, however, Quimby v. Claflin, 77 N. Y. 270
[1879].)
Error, to justify reversal, must prejudice exceptant.] An exception to
an erroneous ruling of a surrogate on the trial by him of an issue of fact is
not a ground for reversal where it does not appear that the exceptant was
necessarily prejudiced thereby. (In re Morgan, 104 N. Y. 74 [1887].)
As to the sufficiency of exceptions taken on a murder trial, to raise
questions on appeal; when the refusal to strike out erroneous testimony is
not ground for reversal, where it could not have harmed the defendant.
(People V. Chacon, 102 N. Y. 669 [1886J.)
Power of court to review errors without exception.] This is a power
that will not ordinarily be exercised and will only be resorted to when it
is apparent that grave injustice has been done, and where it is necessary
for the purpose of correcting an injustice that cannot otherwise be corrected.
(McMurray v. Gage, 19 App. Div. 505 [1897].)
Motion for a nonsuit.] Where there was no motion for a nonsuit or
for the direction of a verdict and no exception was taken which presented
the question as to whether there was sufficient evidence to sustain the ver-
dict, the Court of Appeals cannot give relief. (Schwinger v. Raymond,
105 N. Y. 648 [1887].)
The General Term may set aside a verdict as contrary to evidence.
(76.)
To review a motion for nonsuit the case must show a ruling and an
exception thereto.] The case as settled by the referee before whom this
action was tried, stated that a motion to dismiss the complaint was made
on the ground that no case had been proven against the defendant, but he
did not state how he disposed of the motion, or that any exception was taken
by either party. The referee subsequently found that the plaintiff had no
title to the note upon which the action was brought, and directed the com-
plaint to be dismissed. Held, that the case did not present for review any
question as to the ruling of the referee on the motion for a nonsuit. (Pritch-
ard V. Hirt, 39 Hun, 378 [1886].)
Effect of exceptions to refusal to grant nonsuit.] The effect of excep-
tions to refusals to grant a nonsuit, is to raise only the question whether
there was sufficient evidence to sustain the verdict. There can be no review
in the Court of Appeals from unanimous judgment of affirmance, where it
was found that tlie evidence sustained the verdict. (Szuchy v. Hillside Coal
& Iron Co., 150 N. Y. 219 [1896].)
Motion for nonsuit — when exception based on general grounds fails.]
When defendant moves to dismiss, without stating the grounds, he cannot
maintain his exception to a denial provided any requisite proof could be
supplied; but if he specify the grounds that plaintiflf had not established a
cause of action, the sufficiency of the evidence will be considered on appeal.
(McNish V. Village of Peekskill, 91 Hun, 324 [1895].)
Eule 32] Geneeal Rules of Peactice, 235
Exception to denial of motion for nonsuit — review of evidence.]
While the Appellate Term cannot disturb a judgment as against the weight
of evidence, it vcill, where a motion for a nonsuit has been denied and an
exception taken, review the evidence to see if there is sufficient to sustain
a verdict for the plaintiflF, since that presents a question of law. (Divver v.
Hall, 21 Misc. Kep. 452 [Sup. Ct. App. T. 1897].)
Motion for a new trial, when necessary for a review,] Where a party
has not moved for a new trial no question aifecting the merits or the suffi-
ciency of the evidence to support the verdict can be raised. (Third Ave.
E. R. Co. V. Ebling, 100 N. Y. 98 [1885].)
Exceptions necessary, where a motion for a new trial is denied.]
Where it is alleged that a verdict is perverse, excessive in amount and con-
trary to the law and the evidence, and a motion for a new trial is made and
judgment is entered upon the verdict, such judgment cannot be reviewed in
the Court of Appeals unless an exception be taken. This rule has not been
changed by section 999 of the Code of Civil Procedure. (Standard Oil Co.
V. Amazon Ins. Co., 79 N". Y. 506 [January, 1880] ; Boss v. World Mut. Life
Ins. Co., 64 id. 236-^242 [1876].)
Exception to the denial of the motion for a new trial does not enable
defendant to argue, on an appeal to the»Com-t of Appeals, a point not taken
upon the trial. (Werner v. City of Rochester, 149 N. Y. 563 [1896].)
Appeal from judgment only.] On appeal from the judgment alone, no
appeal being taken from the order denying a new trial, only the exceptions
taken on the trial can be considered. (Mosheim & Co. v. Schwartz, 15 Misc.
Eep. 439 [N. Y. City Ct. 1896].)
Denial of a motion for new trial — not the subject of exception — there
must be an appeal from the order of denial.] A denial of a motion for a new
trial, made upon the judge's minutes, is not the subject of an exception, and
such an exception presents no question of fact for review upon appeal from
the judgment.
The office of an exception is to point (Jut errors committed by the
court during the progress of the trial.
To bring up the case for review upon the facts there must be an
appeal from the order denying the motion for a new trial. (Matthews v.
Meyberg, 63 N. Y. 656 [1886]; Gregg v. Howe, 5 Jones & S. 420 [Supr. Ct.
1874]. See, also. May v. Menton, 45 N. Y. Supp. 1047 [N. Y. City Ct. 1897].)
When the order is not appealable to the Court of Appeals.] The
Court of Appeals has no jurisdiction to entertain an appeal from an order
granting or refusing a new trial upon the facts, in a case tried by a jury.
(Baldwin's Bank v. Butler, 133 N. Y. 564 [1892].)
An appeal from an order denying a new trial necessary — an exception
not sufficient.] In order that a case may be reviewed upon the facts, an
appeal must be taken from the order denying a motion for a new trial; an
exception cannot be talten simply to the denial of the motion. (Momeyer v.
N. J. Sheep & Wool Co., 49 St. Eep. 414 [Sup. Ct. 1892].)
Denial of new trial — order must be entered.] ^Tiere no order deny-
ing a motion for a new trial has been entered, there is nothing brought up
before the appellate court by an attempted appeal from the ruling upon
236 CouETs OF Recoed. [Rule 32
the trial. (Nilea Tool Works Co. v. Reynolds, 4 App. Div. 24 [1896] ; Jagau
v. Goetz, 11 Misc. Rep. 380 [N. Y. Com. PI. 1895]; Chaimson v. Menshiug,
12 id. 651 [N. Y. City Ct. 1895] ; Ringle v. Wallis Iron Works, 85 Hun, 279
[1895].)
Appeal from an order denying new trial — what exceptions appellant
need not show.] Upon appeal from an order denying motion for a new trial
on the minutes, to the General Term of the same court, it is not necessary
for the appellant to show an exception to the denial of a motion for a non-
suit, at the close of the case, or for the direction of a verdict. (Hopkins
V. Clark, 14 Misc. Rep. 599 [N. Y. Com. PI. 1895].)
No question for review is presented to the court by a simple exception
to the order denying a motion for a new trial when the order itself is omitted
from the case on appeal. (La Societa Italiana Di Beneficenza v. Sulzer, 47
St. Rep. 292 [N. Y. Supr. Ct. 1892].)
Where no order is entered, denying a motion for a new trial, the appel-
late court is limited to considering the exceptions taken at the trial; it can-
not consider questions of fact. (Gibson v. Denton, 4 App. Div. 198 [1896].
See, also. Hatch v. Spooner, 1 id. 408 [1896].)
City Court of New York. Appellate Term cannot review an order
thereof refusing a new trial. It is limited to the questions presented by the
exceptions. (Stock v. Le Boutillier, 19 Misc. Rep. 112 [Sup. Ct. App. T.
1897]; Ebenreiter v. Dahlman, 19 id. 9 [Sup. Ct. App. T. 1896]; Jennings v.
Kosmak, 20 id. 300 [1897].)
As to further powers of the Appellate Term on appeal from the City
Court, see Briscoe v. Litt, 19 Misc. Rep. 5 [Sup. Ot. App. T. 1896]; Geitel-
sohn v. Citizens' Savings Bank, 20 id. 84 [Sup. Ct. App. T. 1897] ; Machauer
V. Fogel, 21 id. 637 [Sup. Ct. App. T. 1897].)
Power to grant a new trial in the absence of exceptions.] The Gen-
eral Term of the Supreme Court has power to grant a new trial although
the counsel has failed to take a proper exception on the trial to the judge's
charge, but this power will not be exercised unless it is manifest that in-
justice has been done. (Ryan v. Conroy, 85 Hun, 544 [1895].)
Court of Appeals — jurisdictional questions.] ^Vhen objections to ju-
risdiction may be taken on appeal to the Court of Appeals in the first
instance. (Fiester v. Shepard, 92 N. Y. 251 [1883].)
On appeal from the affirmance of the decree of a surrogate, on the
trial of an issue of fact.] An appeal to the Coui-t of Appeals from the affirm-
ance by the General Term of a surrogate's decree upon the trial of an issue
of fact, brings nothi]ig up for review not presented by the appeal to the
General Term, and upon the appeal to the General Term no finding or de-
cision can be reviewed which was not excepted to. (In re Kellogg, 104 N. Y.
048 [1887].)
Objections — when to be made.] Objection should be made to im-
proper evidence when it is offered; if received without objection the court is
not bound to charge the jury to disregard it. (Braduer v. Strang, 89 N. Y.
299 [1882].)
Eule 3'2] Genehal Rules of Peactice. 237
Proper practice in taking.] For a statement of the proper practice
in taking exceptions, etc., see the notes of N. C. Moak, Esq. (People v.
A. & S. R. K Co., 57 Barb. 210. See, also, Innes v. Manhattan E. Co., 3
App. Div. 541 [1896]; Clarke v. Westcott, 2 id. 503 [1896].)
Failure to except on a trial cannot be remedied.] The failure to take
exceptions to rulings at the time they are made at the trial, camiot be cured
by an amendment of the case on appeal. (Fifth Ave. Bank v. Parker, 15
N. Y. Supp. 734 [N. Y. Supr. Ct. 1891] ; Fifth Ave. Bank v. Webber, 27 Abb.
N. C. 1 [N. Y. Supr. Ct. Sp. T. 1891].)
Exception lies only to evidence admitted against a party's objection.]
An exception to the admission of evidence may only be taken when it is
received against the party's objection. (Tliird Ave. R. R. Co. v. Ebling, 100
N. Y. 98 [1885].)
Appellant's exceptions, not reviewed.] Rulings on questions relating
to a claim as to which appellant prevailed are not reviewable. (Neier v.
Looschen, 25 Misc. Rep. 430 [1898].)
Objection, by the party benefited by an error.] An appellant cannot
object to an error that was advantageous to him. (People v. Bauer, 37 Hun,
407 [1885]; Greene v. Smith, 13 App. Div. 459 [1897].)
Ground on which objection is sustained.] An objection to evidence
admitted, must be sustained on appeal, if at all, upon the ground upon which
it was placed at the trial. (Eisert v. Brandt, 10 Misc. Rep. 393 [1894].)
How objections to the reception of evidence should be made — errone-
ous admission of evidence — when the decision will not be reversed therefor.]
Wbere evidence is admitted by a referee against the objections of either
party, and it does not appear that upon the hearing before the Special
Term, any motion was made by the party aggrieved to strike out or expunge
the evidence ao objected to, or tliat tlie judge was called upon to pass upon
its admissibility, or that he made any ruling in regard to it, the objections
will be deemed to have been waived and the ruling of the referee thereon
cannot be reviewed upon appeal. The admission of irrelevant and immaterial
evidence will only be treated as error when it can be seen to have worked
harm to the party objecting to it. (Tlie People ex rel. Railroad Company
v. Keator, 36 Hun, 592 [1885].)
When a general objection is sufScient.] When evidence is, upon its
face, apparently admissible, the party objecting thereto is bound to state the
gi-oimds of his objection; but where upon its face it appears inadmissible, a
general objection to it as improper, is sufficient to call upon the party offer-
ing to show the grounds of its admissibility. (Childs v. DeLaney, 1 Sup.
Ct. [T. & C] 506 [Gen. T. 1873].)
Exception to a general finding that one party was entitled to recover
— effect of.] Upon a trial before a court or referee an exception to a general
finding of law, holding that one party is entitled to recover against the other,
raises the question as to whether upon all the facts found the successful
party was entitled to judgment. (Hemmingway v. Poucher, 98 N. Y. 281
[1885]; Petrie v. Trustees of Hamilton College, 158 id. 458 [1899].) Pre-
sumption where the report is general. (/6.)
238 'CouETs OP Rbcokj). [Rule 32
When the difSculty could not be obviated.] How far a general objec-
tion and exception is available, vsrhere the diflfioulty could not be obviated
by evidence. (Thayer v. Marsh, 19 Alb. Law J. 56 [Court of Appeals, 1878] ;
Quinby v. Strauss 90 N. Y. 664 [1882].)
Where evidence is received under a general objection, the ruling will
not be held erroneous unless there are grounds of objection, which could not
have been obviated had they been specified, or unless the evidence is in its
essential nature incompetent. (Bergmann v. Jones, 94 N. Y. 51 [1883];
Turner v. City of Newburgh, 109 id. 301 [1888]; Stouter v. Manhattan R.
Co. 127 id. 661 [1891].)
Evidence inadmissible for any purpose.] A general objection to evi-
dence is suificient where the evidence is in its nature inadmissible for any
purpose. (Tozer v. N. Y. C. & H. R. R. R. Co., 105 N. Y. 659 [1887].)
When a general objection is insufficient.] A general objection to all
the findings of a referee, and to each and every one of them, is of no avail
on appeal. (Ward v. Craig, 87 N. Y. 550 [1882] ; Hepburn v. Montgomery, 97
id. 617 [1884]; Drake v. N. Y. Iron Mine, 156 id. 90 [1898].)
Objections that the evidence is defective must point out the specific
defect. (Sheridan v. Mayor, 4 N. Y. Wkly. Dig. 507 [Sup. Ct. 1877].)
Effect of speciiic objections.] Where evidence is excluded upon a spe-
cific objection, the ruling cannot be sustained on appeal upon another ground.
(Eisert v. Brandt, 10 Misc. Rep. 393 [1894].)
On refusal of judge to submit specific question of fact to jury — must
be specific] On the refusal of the judge to submit a specific question of fact
to a jury, there must be a specific exception to the refusal. A general
exception to the direction of the court to the jury to find a verdict for the
defendant is not good. Moore v. Bristol, 2 N. Y. Wkly. Dig. 293 [Sup. Ct.
1876]; Jordan v. Bowen, 11 id. 72 [Gen. T. 1880].)
Exceptions to a report as to an account — should be specific] Excep-
tions to a referee's report, so far as they relate to matters of account,
should be specific, and point out allegerl error. (Jagger v. Littlefield, 8 Wkly.
Dig. 170 [Gen. T. 1879].)
Exception too indefinite.] Upon a trial before a referee defendant pre-
sented requests to find, which were refused. He thereupon excepted as fol-
lows : Defendant separately excepts " to the refusal of the referee to find
each of the several seventeen conclusions submitted to the referee by the
said defendant so far as the referee's conclusions are not in conformity there-
with." Held, that such exception was not sufficiently definite and specific
to present a question for review. (Daniels v. Smith, 130 N. Y. 696 [1892] ;
Turner v. Weston, 133 id. 650 [1892].)
Objection that finding does not conform to facts — too general.] A
general objection and exception to a refusal of a judge to malce his findings
conform to the facts proved is too vague. (Krekeler v. Thaule, 17 Alb.
Law J. 347 [Court of Appeals, 1878].)
Insufficiency of exceptions to present questions on appeal.] In this
case the appellants claimed that the contract in question was to a certain
efi'ect. They excepted simply to the finding of the referee that it was in
Eule 32] General Rules of Pkacticb. 239
writing; the court held that as they did not request the referee to find the
contract aa claimed by them, nor except to the finding that the contract was
as claimed by the defendant, the case contained no exception that would
enable plaintift's to avail themselves of the parol agreement claimed by
them. (Keogh v. Westervelt, 66 N. Y. 636 [1876].)
Must disclose real ground.] An exception to evidence must disclose
the real ground of objection. (Chester v. Dickerson, 54 N. Y. 13 [1873] ;
Goldenson v. Lawrence, 16 Misc. Rep. 570 [1896].)
-The appellate court will not review exceptions merely upon the state-
ment that "the defendant hereby excepts to the findings of fact and to the
conclusions of law of the referee herein," such a statement being too general.
(Thompson v. Hazard, 120 N. Y. 634 [1890]; Dralce v. N. Y. Iron Mine, 156
id. 90 [1898].)
Effect of a general exception to a referee's conclusions of law.] A
general exception to a referee's conclusions of law is not available, unless all
the rulings embraced in them are erroneous. (Eiley v. Sexton, 32 Hun, 24.5
[1884].)
An exception to a finding is too general to be available unless it
specifically states the ground of error relied upon, in order that attention
being called to the fact an opportunity may be offered to correct the same.
[Hunter v. Manhattan Railway Co., 141 N. Y. 281 [1894]; Baily v. Hornthal,
154 id. 648 [1898]; Drake v. N. Y. Iron Mine, 156 id. 90 [1898].)
Strictness as to taking exceptions to conclusions of law.] A party
excepting to conclusions of law of a com-t or referee, is not held to the same
strict rule as on excepting to a charge. (Newlin v. Lyon, 49 N. Y. 661
[1872].)
Necessity of specific objections.] The complaint in an action alleged
that the payments sought to be recovered were due February 1 and May
1, 1891; by the contract tlie payments were not due in advance. The
testimony on the part of the plaintiff was to the effect that the payments
impaid were for the quarter from February 1 to May 1, and from May 1
to August 1. The trial com't found that defendant had not made the pay-
ment for the quarter ending February 1, 1891.
Held, that while there was no proof to sustain this finding, yet as it ap-
peared that two quarterly payments were in fact due and unpaid it wa.s
incumbent on defendant to raise the specific objection on the trial, and as
this was not done it could not be raised upon appeal. (Mayor, etc., v. New
York Refrigerating Construction Co., 146 N. Y. 210 [1895].)
Sustaining ruling excluding evidence on general exceptions.] Where
evidence is excluded on an objection which stated no grounds and none were
called for by the adverse party, he may be supposed to have understood
them, and if any ground in fact existed it will be assumed that the exclu-
sion was based thereon. (Miner v. Stolts, 11 Misc. Rep. 338 [1895].)
When exclusion of material evidence, under a general objection, cannot
be sustained.] The exclusion of material evidence, under a general objection,
cannot be sustained on appeal, upon the ground that the questions were
leading. (People v. Nino, 149 N. Y. 317 [1896].)
240 CouETs OF Eecoed. [Rule 32
General objection to evidence — when overruling thereof sustained on
appeal.] When it appears that there is some ground of objection, which
could not have been obviated if it had been specified, or unless the evidence
in any aspect of the case is incompetent, the overruling of a general objec-
tion to evidence will be sustained on appeal. (Ackley v. Welch, 85 Hun,
178 [1895].)
General objection as to damages, when not good on appeal.] Where
questions as to damages are objected to generally, the defendant objecting
cannot object on appeal that the complaint was not specific enough to
authorize proof of special damage. (Bergmann v. Jones, 94 N. Y. 51 [1883].)
Cured by proper answer.] Where, although a question is too broad,
the answer is limited to the point at issue, there is no error. (Wright v.
Cabot, 89 N. Y. 570 [1882].)
Irresponsive answer.] An exception to a ruling admitting a question
is not available on appeal, where such question was not responsively an-
swered. (Miller v. Erie R. R. Co., 34 App. Div. 217 [1898].)
General objection — applies to the competency of the evidence, and
not to that of the witness.] A general objection to a question can only be
considered as applying to the competency or materiality of the point sought
to be proved, and not to the competency of the witness to testify upon the
subject. (Stevens v. Brennan, 79 N. Y. 254 [1879].)
Distinction between cases where evidence is received and excluded
under.] Where evidence is excluded upon a mere general objection, the ruling
will be upheld, if any ground in fact existed for the exclusion, but where
the objection is overruled and the evidence is received, the ruling wiU not be
held erroneoiis unless there be some ground which could not have been
obviated if it had been specified, or unless the evidence in its essential nature
be incompetent. (Tooley v. Bacon, 15 Alb. Law J. 515 [Court of Appeals,
1877]; Langley v. Wadsworth, 9 N. Y. 61 [1885].)
Objection to conclusion of trial judge, how raised.] The question
whether the trial judge's conclusion was correct can only be raised by an
exception duly taken and filed, prescribed by Code of Civil Procedure, sections
994 and 1022, and a note in the extract from the clerk's minutes of the trial
that " defendant's attorney excepts " to the court's direction of a judg-
ment for plaintifi', is not sufiieient and raises no question of law. (Hedges
V. Polhemus, 14 Misc. 309 [1895].)
^If evidence, objected to as incompetent and immaterial, might, in any
event become competent, the question is one of order of proof and discretion-
ary. (Decker v. Gaylord, 35 Hun, 584 [1885].)
A general objection to a question which is proper in part cannot be
sustained. (Simson v. Chadwick, 20 N. Y. Wkly. Dig. 35.)
A general objection to a question will not make it error to admit it
merely on the ground that it called for matter of opinion from the witness
not shown to be qualified. (Amadon v. IngersoU, 34 Hun, 132.)
To a portion of a charge.] A general exception to a portion of a
charge is of no avail" unless all the propositions laid down therein are errone-
ous. (People V. Guidici, 100 N. Y. 503 [1885].)
Eule 32] Geneeal Eules op Peactioe. 241
General objectiom not sustained by specific one.J A general objection
taken at the trial cannot be sustained on appeal by a specific one. (Hoopes
V. Auburn Water Work Company, 37 Hun, 568 [1885].)
General objection to evidence — when not available on appeaL] If the
specific ground had been stated at the trial, and it could have been met by
conforming the pleadings to the proof, the general objection to evidence is
not available, (^'ilas v. Allentown Rolling Mills, 84 Hun, 21 [1895].)
Failure to take objection — rulings still reviewable.] The Appellate
Division may, in a proper case, review the ruling of the trial court in exclud-
ing evidence, although a technical exception was not taken. (Meyer v. Hart,
23 App. Div. 131 [1897]. See, also, Murray v. Babbitt, 10 Misc. Rep. 365
[1894].)
Immaterial error — not a ground for reversal.] Error in receiving
evidence objected to, which is entirely immaterial, and which could not have
prejudiced the party objecting, is not a groimd of reversal. (Tenney v.
Berger, 93 N. Y. 524 [1883]; McGean v. Manhattan R. Co., 117 id. 219 [1889].)
Immaterial exceptions.] Objections and exceptions to the admission
of evidence as to rental or past damages in an action to restrain the opera-
tion of an elevated railroad are not available on appeal where no past dam-
ages were awarded in the judgment. (Missionary Society of St. Paul v. The
N. Y. Elevated R. R. Co., 12 Misc. Rep. 359 [1895].)
Frivolous exceptions in Court of Appeals.] To sustain a motion in the
Court of Appeals to dismiss an appeal because the exceptions are frivolous,
the exceptions must be so obviously frivolous on their face as to require no
argument to demonstrate it, and where an examination of the record discloses
a number of exceptions that can only be disposed of after argument, the
motion will be denied. (Bachrach v. Manhattan R. Co., 154 N. Y. 178 [1897].)
Reservation of an objection — duty of the party objecting.] Where
an objection interposed to evidence is ^reserved without dissent and the evi-
dence received, the party objecting must procure the court or referee to pass
upon the question in some form or the objection will be unavailing on appeal.
(Matter of Yates, 99 N. Y. 94 [1885].)
Duty of referee to decide at the time when an exception is taken.] It
is the duty of a referee to decide as to the admissibility of evidence at the
time it is offered and an exception is taken, and not to reserve his decision
until the final disposition of the case. (Smith v. Kobbe, 59 Barb. 289 [Gen.
T. 1871]; Lathrop v. Bramiall, 3 Hun, 394 [1875]; Sharpe v. Freeman, 45
N. Y. 802 [1871]; Clussman v. Merker, 3 Bosw. 402 [Gen. T. 1858]; Wagner v.
Finch, 65 Barb. 493 [Gen. T. 1873]. See Van Derlip v. Keyser, 68 N. Y. 443
[1877].)
An exception must be taken to the reservation by a referee of his
decision on an objection taken during the trial. (Holden v. N. Y. & Erie
Bank, 72 N. Y. 286 [January, 1878].)
Reservation by referee of decision on exception.] When it is not an
error for a referee to reserve a question as to the admissibility of evidence.
(Trimmer v. Trimmer, 90 N. Y. 675 [18S2] ; Smith v. Kobbe, 59 Barb. 28!)
[Gen. T. 1871]; Lathrop v. Bramhall, 3 Hun, 394 [1875]; Sharpe v. Freeman,
16
242 CouETS OF Eecord. [Kule 32
45 N. Y. 802 [1871] ; Clussman v. Merker, 3 Bobw. 402 [Gen. T. 1858] ; Wagner
V. Finch, 65 Barb. 493 [Gen. T. 1873] ; Van Derlip v. Keyser, 68 N. Y. 443
[1877]; Holden v. N. Y. & Erie Bank, 72 id. 280 [January, 1878].)
Filing exceptions nunc pro tunc] The court has power to allow excep-
tions to be filed, nunc pro tunc after the ten days have elapsed. (Coe v. Coe,
14 Abb. 87 [Gen. T. 1861]; Bortle v. Mellen, 14 id. 228 [Chamb. 1862];
Sheldon v. Wood, 14 How. Prac. 18 [N. Y. Supr. Ct. Sp. T. 1857].)
Exceptions filed nunc pro tunc — when.] When exceptions to findings
will be allowed to be filed nuno pro tunc. (Douglass v. Douglass, 7 Hun, 272
[1876].)
Decision on appeal suspended to allow application to the Special Term
to file exception nunc pro tunc. ( Stiefel v. N. Y. Novelty Co., 12 Apjv Div.
266 [1896].)
Objection to argument of counsel before jury.] An objection over-
ruling an exception must appear from the papers in order to procure a review
of the action of the court at the trials in refusing to check counsel in arguing
before the jury, or in striking out parts of the opening or summing up.
(Niles V. N. Y. C. & H. R. R. R. Co., 13 App. Div. 549 [l'»97].)
Statement of counsel, in an action for libel, of the recovery in other
actions.] Repetition by an attorney, in summing up an action for libel, of
a statement as to the amount of the verdict in other cases of libel, after the
court has ruled it to be improper, is ground for reversal, although the attor-
ney subsequently withdraws the statement and the court charges that the
jury are not to consider it. (BaguUy v. Morning Journal Assn., 38 App. Div.
522 [1899].)
Waiver of — proof to show waiver of exception must appear in case.]
Where the judge ruled that the plaintiff in ejectment had made out a prima
facie title in G., under whom he claimed, to which ruling defendant excepted;
and subsequently defendant proved that he himself claimed under 6., held,
that defendant's proof should be inserted in the bill of exceptions, so that
plaintiff might insist upon it as a waiver of the exception. (Hills v. Tuttle,
7 Cow. 364 [1827].)
When not stated in points or argued.] Exceptions, not noticed in
counsel's points or argued, are deemed waived. ( Sutherland v. Rose, 47 Barb.
145 [Gen. T. 1866] ; Cummings v. Morris, 3 Bosw. 560 [Gen. T. 1858] ; Pratt
V. Strong, 3 Keyes, 54 [1866].)
No exception lies to evidence, addressed to the court, upon the ques-
tion of admitting dying declarations.] An exception does not lie to evidence,
addressed to the judgment of the court, bearing upon tlie question whether or
not the declarations of one alleged to have been murdered were made under a
conviction of approaching and imminent death, the jury being simply spec-
tators and, being in no way called upon to act upon such preliminary testi-
mony. (People v. Smith, 104 N. Y. 491 [1887].)
Exception — proper way to review order of referee amending a plead-
ing.] The proper mode of reviewing the decision of a referee, on a motion
to strike out an amendment of a complaint, is by excepting thereto and appeal-
ing from the judgment. (Quimby v. Claflin, 77 N. Y. 270 [1879]. See,
however, Frischman v. Zimmerman, 19 Misc. Rep. 53 [Sup. Ct. App. T. 1896].)
Eule 32] Geneeal Eules of Practice. 243
Objection to evidence — need not be repeated.] After objecting tliree
times to the same class of evidence, the objection being on each occasion over-
ruled, plaintiff neglected to object to evidence of like character given by a
witness. Held, that the evidence must be treated as being received under the
previous rulings and a new objection was not necessary. (Dilleber v. Home
Life Ins. Co., 69 N. Y. 256 [1877]; Carlson v. Winterson, 147 id. 652 [1895].)
Objection once taken is sufficient.] Where evidence on a particular
subject is inadmissible, an objection taken when the subject is entered upon
should be held to relate to all evidence on such subject. (Montignani v. E. V.
Crandall Co., 34 App. Div. 228 [1898].)
An exception to an admission of a certain class of evidence is avail-
able where the grounds of objection were fully stated when the question was
first raised, although the subsequent objections thereto were general in char-
acter. (Gray v. Brooklyn Union Pub. Co., 35 App. Div. 286 [1898].)
Verdict, subject to opinion of General Term — exceptions first heard at
General Term.] When a verdict is ordered subject to the opinion of the
court at General Term, without qualification, the only question at General
Term is, which party is entitled to judgment upon the uncontroverted facts;
exceptions cannot be heard. Where exceptions are ordered to be heard at
General Term, if the exceptions are sustained, a new trial may be ordered.
(Durant v. Abendroth, 69 N. Y. 149 [1877] ; Cowenhoven v. Ball, 118 id. 231
[1890].)
Exceptions to be first heard at General Term — objection thereto can-
not be first made in the Court of Appeals.] Where, upon a trial, exceptions
are without objection ordered to be heard in the first instance at the General
Term, the party succeeding at General Term cannot object to a review of its
decision in the Court of Appeals, on the ground that the case was not one
proper to be so heard. (Wyckoflf v. De Graff, 98 N. Y. 134 [1885].)
Exception necessary to raise objection to the failure to submit case to
jury.] Where the trial court directs a verdict in favor of the defendant, and
orders the exceptions to be heard in the first instance at General Term, an ex-
ception to the dii'ection of a verdict is necessary to enable the plaintiff to take
the objection into the Court of Appeals, that the case should have been sub-
mitted to the jury. (Curtis v. ^leeler & Wilson Mfg. Co., 141 N. Y. 511
[1894].)
Order that exceptions be first heard at General Term — when unau-
thorized.] In case a motion for a new trial is made and denied under section
999 of the Code of Civil Procedure, and an order is entered, it can be reviewed
only by an appeal therefrom. If a motion for a new trial is made on the
minutes on exceptions taken, which is denied and an order is entered, an order
directing that the exceptions be heard in the first instance at General Term
is unauthorized by the Code of Civil Procedure, and the motion will not be
heard by the General Term of the Supreme Court. (Schram v. Werner, 81
Hun, 561 [1894].)
Oral direction that exceptions be heard in the first instance at General
Term, is insufficient. (Fifth Ave. Bank v. Forty-second St. & Grand St. Ferry
R. R. Co., 6 App. Div. 567 [1896].)
244 CauETs OF Recoed. [Rule 32
Exceptions to be first heard at the Appellate Division — complaint
cannot be dismissed on merits.] Where the court directed a verdict for
plaintiff, and ordered defendant's exceptions heard in the Appellate Division
in the first instance, the latter court cannot, upon sustaining such exceptions,
direct a dismissal of the complaint on the merits, hut has power only to award
a new trial. (Matthews v. Amer. Cent. Ins. Co., 154 N. Y. 449 [1897].)
Exceptions to be first heard at Appellate Division — what is a sufS-
cient certification.] The minutes of the trial, signed by the clerk, containing
a statement that defendant's exceptions are to be heard in the first instance
by the Appellate Division, and that entry of the judgment be suspended in
the meantime, constitutes part of the record, and is a sufficient certification
of the entry of the necessary order for hearing the exceptions within Cod© of
Civil Procedure, section 1000: (Sedgwick v. Macy, 24 App. Div. 1 [1897].)
Review, without formal objection to the dismissal of the complaint.]
Where a complaint is dismissed upon the trial, and the exceptions are ordered
to be lieard at the Appellate Division in the first instance, the latter court
will review the ruling, although no formal exception was in fact taken to the
dismissal of the complaint. (Deane v. City of Buffalo, 42 App. Div. 20'5
[1899].)
Exception to nonsuit, to be first heard at Appellate Division, implied.]
An exception to a nonsuit will be implied where leave to go to the Appellate
Division in the first instance is given. (Woolsey v. Lasher, 35 App. Div. 108
[1898].)
Neglect to except to order directing verdict and exceptions to be heard
at General Term.] If a defendant neglects to except to an order directing a
verdict below, and that the exceptions be heard at General Term, the General
Term can only order a new trial on the ground that there has been a mistrial.
(Westervelt v. Westervelt, 10 N. Y. Wkly. Dig. 265 [Gen. T. 1880].)
Exception to a denial of a nonsuit — when waived.] An exception to
a denial of a motion for a nonsuit at the close of plaintiff's evidence is waived
where the defendant introduces evidence and fails to renew his motion to dis-
miss, or to ask the direction of a verdict at the close of the whole case.
Fraser v. Alpha Combined Heating & Lighting Mfg. Co., 25 Misc. 422 [1898].)
Objection based on pleadings, not taken below.] An objection that the
defense of usury was not pleaded cannot be raised for the first time on appeal.
(Orvis V. Curtiss, 12 Misc. Rep. 434 [1885].)
Objections not raised on the trial.] In an action brought against a
sheriff to recover certain chattels taken and sold by him under an execution
issued upon a judgment, the trial judge charged the jmy to assess the value
of the property as they deemed it to be established by the evidence, and that
they could take into consideration anything that was in evidence upon the
subject. The point that the jury under such charge fixed the value of the
property as of the date of the levy made by the sheriff upon such property,
and not as of the date of the trial, was not taken by the unsuccessful party
at the trial. Held, that he could not raise such objection for the first time
upon an appeal. (Brackeleer v. Schwabeland, 86 Hun, 143 [1865].)
A claim that the credibility of witnesses should have been submitted to
Kiile 92] Genekal Kdles of Peactioe. 245
the jury cannot be raised for tlie first time on appeal. (Kerley v. Mayer, 10
Misc. Eep. 718 [1895].)
When objection to lack of exceptions to a referee's report taken for
the first time on appeal, is unavailing.] Where the record did not show that
the exceptions were not filed, and the motion, based on a referee's decision,
■was brought up on an order to show cause, on less than eight days' notice,
indicating a waiver of the filing of exceptions, an objection to the lack of ex-
ceptions to a referee's report is unvailing when taken for the first time on
appeal. (Nichthauser v. Lehman, 17 Misc. Rep. 336 [Sup. Ct. App. T. 1896].)
Questions not raised below.] An objection that there was an ade-
quate remedy at law cannot be taken on appeal where the appellant did not
plead- such defense or take the point on the trial, although some other defend-
ant set up such defense. (Nickerson v. Canton JIarble Co., 35 App. Div. Ill
[1898].)
An objection that the. check mailed in payment of premiums was not a
good one cannot be taken for the first time on appeal. {Guilfoyle v. Nat. Life
Assn., 36 App. Div. 343 [1899].)
Objection to award of damages will not be considered first on appeal.]
The objection that the sum awarded for damages is in excess of the sum de-
manded in the complaint will not be considered on appeal where no point of
that kind is raised at the trial. It will be deemed that the complaint is
amended to cover the amount awarded, and that it was founded upon proof
substantially without conflict or contradiction. (Clason v. Baldwin, 152 N. Y.
204 [1897].)
Negligence, as conclusion of law — review in Court of Appeals.] Where
a referee found negligence as a conclusion of law, held, that though negligence
is usually a question of fact, yet that if there was evidence sufficient to sus-
tain a finding that the defendant was negligent, the manner in which the
referee stated his conclusion would not authorize the Court of Appeals to re-
verse the conclusion of the referee and decide as a question of law whether,
upon the facts found, the defendant was negligent. (Hays v. Miller, 70 N. Y.
112 [1877].)
— —As to power of Court of Appeals on appeal. (Levy v. People, 80 N. Y.
337 [1880].)
As to verdict against the weight of evidence in criminal cases. (See
Code of Criminal Procedure, §§ 527, 528.)
Exceptions to the denial of a motion for a new trial on the ground of
newly-discovered evidence. (Leighton v. People, 10 Abb. N. C. 261 [Gen. T.
1881].)
As to bill of exceptions in criminal cases. (See Code of Criminal Pro-
cedure, §§ 455-461.) Settlement of bill of exceptions will not be compelled in
the case of an escaped prisoner. (People v. Genet, 59 N. Y. 8X> [1874].)
As to the sufficiency of exceptions to raise questions on appeal. (Hayes
v. B. & D. M. Co., 102 N. Y. 648 [1886]; Bigelow v. Legg, Id. 652 [1886].)
Failure to show that exceptions were filed.] The fact that appel-
lant's papers do not show that his exceptions were duly filed is not sufficient
to allow respondent to strike them from the case on appeal ; he must prove
appellant's failure to file them. (Young v. Young, 133 N. Y. 626 [1892].)
246 Courts of Eecokd. [Rule 32
Not waived by offering evidence in rebuttal.] A party does not waive
his objection to the admission of evidence by offering evidence in rebuttal
thereof. (Woods v. Buffalo R. Co., 35 App. Div. 203 [1898].)
Motion to amend by inserting — where made.] Motion to amend the
case by inserting exceptions must be made before the judge who tried the
cause, and not at General Term. (Ropes v. Arnold, 85 Hun, 619 [1895].)
Objection not raised below.] An objection that a contract is void
as violating the provisions of the act of Congress known as the Anti-Trust
Act, cannot be considered by the Court of Appeals, where it was not raised
■below. (N. Y. Bank Note Co. v. Hamilton B. N., etc., Co., 180 N. Y. 280.)
SUFFICIENCY OF — What reviewable under.] An exception to a finding
in the report of a referee will not be sufficient to bring up the question of
admissibility under the pleadings of the evidence upon which such finding
was based. (Gibson v. Stctzer, 3 Hun, 539 [1875].)
Where none are taken to the dismissal of the complaint or the ref-
eree's conclusions of law — but only to the admission of evidence on the
trial.] Where the case contains no exception to the dismissal of the com-
plaint in the action, or to the referee's conclusion of law, the court, neverthe-
less, has power to review the rulings of the referee upon the question? of evi-
dence which arose upon the trial, and are presented by tlie exceptions- taken
at the time, and to reverse the judgment and grant a new trial if it is foimd
that the referee has erred in any of tliese particulars to the prejudice of
the plaintiff. (Dainese v. Allen, 45 How. Prac. 430 [Gen. T. 1873].)
Where a case contains none of the evidence.] Exceptions to con-
clusions of law may be reviewable although the printed case does not contain
any of the evidence. On such an appeal the question is, has the judge or
referee drawn a correct conclusion from established facts? (Frost v. Smith,
7 Bosw. 108 [I860]; Ferguson v. Hamilton, 35 Barb. 427 [1862].)
To a sum allowed, raises question whether the entire sum is proper.]
Where a referee finds, as a legal conclusion, that one party is' entitled to
recover of the other a specified sum, an exception thereto raises the question
whether the successful party is entitled to recover the entire sum. ( Briggs v.
Boyd, 56 N, Y. 289 [1874].)
Single exception — when sufScient.] In a case where no questions of
fact arise upon the evidence, and' no interlocutory questions of law are raised
on the trial, the decision of the referee will disclose all the facts, and a single
exception to this decision is proper, and will present the whole question.
(Brewer v. Irish, 12 How. Prac. 481 [Gen. T. 1856].)
Stated together.] In a bill of exceptions it is no objection that the
statement of the exceptions is all contained in one sentence, so long as it
shows distinctly that each offer or request was separately made and niled
upon, and each ruling excepted to. (Dunckel v. Wiles, 11 N. Y. 420, 428
[1864].)
Report of interlocutory referee — review of.] Where the com-t makes
an order upon exceptions to the report of an interlocutory referee and renders
judgment in accordance with the order, upon appeal from the judgment
the court will not review such order, unless the exceptions to the final con-
Kule 32] General Eules of Pbactice. 247
elusions of law bring up for review some question affected by it. (Russell
V. Duflon, 4 Lans. 399 [Gfen. T. 1871].)
Exceptions proper to a report on a receiver's account.] Exceptions are
properly filed to a report of a referee on the accounts of a receiver. (Matter
of Guardian Savings Inst., 9' Hun, 267 [1876]. See Darling v. Brewster, 55
N. Y. 667 [1874].)
STIPULATION — That exceptions were taken — not equivalent to excep-
tions.] A stipulation to the effect that the finding and decision of the judge,
in a cause tried without a jury, " shall be considered as having been duly
excepted to," will not be regarded as equivalent to an exception. (Stephens
V. Reynolds, 6 N. Y. 454 [1852]; People v. Buddensieck, 103 id. 487 [1886].)
WHEN NO EXCEPTIONS LIE — To review errors on trial, exceptions
need not be taken to report.] When a paity relies exclusively upon errone-
ous decisions made during the trial, it is not necessary to make and serve
formal exceptions to the conclusions of law or to the final decision. (Cowen
v. The Village of West Troy, 43 Barb. 48 ; The Mayor v. Erben, 24 How. Prac.
358; Dainese v. Allen, 45 id. 434 [Gen. T. 1873].)
To refusal to find the particular facts making up the general finding.]
No exception lies to the refusal of a referee to find the particulars which go to
make up his general conclusions of fact. (Avery v. Foley, 4 Hun, 415 [1875].)
To referee's findings of fact.] Findings of fact need no exception.
(Hatch V. Fogarty, 7 Robt. 488; Lefler v. Field, 50 Barb. 407; Mayor, etc., v.
Erben, 24 How. Prac. 358 ; Magie v. Baker, 14 N. Y. 435 ; Garfield v. Kirk, 65
Barb. 464.)
Who cannot except to referee's report.] The party in whose favor all
the issues of law are decided by the referee, cannot except to the report of the
referee. (Greene v. Smith, 13 App. Div. 45« [1897].)
ERROR, CURED — By instruction to disregard evidence ] An error In the
reception of evidence will be cured by an instruction to the jury to disregard it
entirely. (Geneva, Ithaca, etc., Railroad Co. v. Sage, 35 Hun, 95 [1885].)
Improper statement of counsel.] An improper statement of counsel
to the jury as to the result of a former trial of the action is eliminated and
cured by a charge directing the jury to disregard it and explaining fully why
it should not be considered. (Cole v. Fall Brook Coal Co., 159 N. Y. 59, affg.
87 Hun, 584 [1899].)
Remark of the judge — the jury directed to disregard it.] Error of
the court in remarking while excluding evidence, that " You have evidence of
the injury sufficient for a big verdict, if the jury believe it," is cured where
the court instructs the jury to disregard it and charges that they were the sole
judges of the facts. (Reilly v. Eastman's Co., 27 Misc. Rep. 32 [1899].)
Error in admitting incompetent evidence is cured by subsequently
making it competent. (Kraus v. J. H. Mohlman Co., 18 Misc. Rep. 430 [Sup.
Ct. App. T. 1896].)
EXCEPTIONS TO THE CHARGE — To the jury.] A general exception
to a charge is not necessarily an exception to every word in it, and, there-
fore, bad if there be one word of truth in the whole charge (Schenck v.
Andrews, 57 N. Y. 149 [1874].)
248 Courts of Record. [Rule 32
To enable the Appellate Term to pass upon a charge or request to
charge, or upon the admission of evidence, an exception must be taken.
(Frischmann v. Zimmermann, 19 Misc. Rep. 53 [Sup. Ct. App. T. 1896].)
Error cannot be predicated to the judge's charge, without an exception.
(Schaflf V. Miles, 10 Misc. Rep. 395 [N. Y. Com. PI. 1894] ; Ryan v. Conroy, 85
Hun, 544 [189'5].)
In a case where a request to charge embodies a false proposition, it is not
the duty of the court to separate the good and charge that by itself. (Lee v.
Sterling Silk Mfg. Co., 134 App. Div. 133.)
Wliere a request to charge involves a repetition of what the coui-t has
already charged, and the court refuses to so charge, an exception is unavailing.
(Meltzer v. Straus, 61 Misc. Eep. 250; Lilley v. Uvalde Asphalt Co., 127 App.
Div. 310. See, also, Murray v. Narwood, 192 N. Y. 172; Woolsey v. Brooklyn
Heights R. R. Co., 123 App. Div. 631; Jacobson v. Fraade, 56 Misc. Rep. 631-;
Clark V. N. Y. Cent. R. R. Co., 191 N. Y. 416; Colwell v. Allen Foundry
Co., 123 App. Div. 601; Hanley v. Brooklyn Heights R. R. Co., 127 id. 355;
People V. Hummel, 119 id. 153; Amballan v. Barcalo ilfg. Co., 118 id. 547;
Bambaee v. Interurban St. Ry. Co., 188 N. Y. 288; Fulton v. Sewell, 116 App.
Div. 744; People v. Waters, 114 id. 669; Regling v. Lehmaier, 50 ^ilisc. Eep.
331; Twaddell v. Weidler, 109 App. Div. 444; Gurski v. Doscher, 112 id. 345.)
Error in charge — judgment reversed where no exception is taken.]
Where the jury was evidently guided in rendering the verdict by an error in
the charge, judgment will be reversed, though no exception thereto was taken.
(Levy V. Klepner, 15 Misc. Rep. 643 [X. Y. City Ct. 1896]. See, also, Griebel
V. Rochester Printing Co., 8 App. Div. 450 [1896].)
An error in the charge, not explicitly excepted to, which might have
been obviated by correction, is not a sufficient ground for reversal. (Hess &
Co. V. Baar, 14 Misc. Rep. 286 [X. y. Com. PI. 1805].)
Tlie court may reverse a judgment for a misdirection to the jury, even
though no exception was taken at the trial. (Gruhn v. Gudebrod Bros. Co.,
21 Misc. Rep. 528 [N. Y. City Ct. 1897].)
Case submitted to jury on erroneous theory — new trial granted with-
out exceptions.] If the case has been submitted to the jury, and decided
upon a wholly erroneous theory, the Appellate Division may grant a new trial,
though there is no exception to such submission. (Leach v. WiUiams, 12
App. Div. 173 [1896]; Vorce v. Oppenheim, 37 id. 66 [1899].)
Power of General Term to reverse without exceptions.] The power
of the General Term to reverse a judgment, although an exception be not taken
to an error committed by the trial court, is never exercised in a civil action
when the error complained of is one that could have been cured on the trial
if the attention of the court and opposing counsel had been brought to it.
(Currier v. Henderson, 85 Hun, 300 [1895].)
3 Adoption of improper rule of damages is not sufficient ground for re-
versal, where no exception was taken and no injustice resulted. (Smith v.
Foote, 81 Hun, 128 [1804].)
Right to require a charge upon propositions of law.] Counsel have
the right to submit propositions of law to the court, and it is the dutj' of the
Eule S'2] Geneeal Rules of Peactice. 249
court to instruct th« jury upon each proposition.. (Chapman v. McCormick,
86 N. Y. 479 [1881]; O'Neil v. Dry Dock, etc., R. B. Co., 129 id. 125 [1891].)
Right of counsel to call the attention of the court to particular re-
quests to find.] At the close of the testimony the counsel for the defendant
submitted to the court an unnecessary and imreasonable number of requests to
charge, and upon the failure of the court to embody all these requests in its
charge, said : " I desire to call your Honor's attention to certain propositions
embodied in the written requests to charge which I have submitted." The
court here said : " I decline to olmrge further than I have already," to which
the defendant excepted. Held, that the exception was well taken; that the
counsel was entitled to distinguish and point out the specific propositions he
desired to have charged. (Debost v. Albert Palmer Co., 35 Him, .386 [1885].)
General exceptions to a number of refusals to charge, untenable.] A
general exception to a number of refusals to charge is not tenable, unless all
the requests should have been granted. (Barker v. Cunard Steamship Co., 91
Hun, 495 [1895].)
Attention of the court to be called to the precise point.] The atten-
tion of the court must be called to the precise point upon which a charge is
asked or an exception will not lie. (Schile v. Brokhahus, 80 N. Y. 614
[1880].)
SufScieut exception.] A statement by the court, " I understand coun-
sel to except to my failure to charge all tlie requests not charged," does not
raise any question for the appellate court. To make an available exception
the party must point out the objectionable language, and interpose thereto an
exception. The language of the court giving a party an exception must be
clear. (Henderson v. B,artlett, 32 App. Div. 435 [1898].)
When a portion of a charge is correct.] ^Vhen a portion of a charge
excepted to is admitted to be correct, such exception will not be sustained.
(Doyle v. N. Y. Eye & Ear Infirmary, 10 N. Y'. Wkly. Dig. 3 [Ct. of Appeals,
1880].)
When only a portion of the request to charge is correct.] The court
is not bound to separate the good portion of the request from the bad, and
charge the former. (Hamilton v. Eno, 81 N. Y^ 116 [1880]; Davis v. Leopold,
87 Id. 620 [1881]; Koehler v. Hughes, 148 id. 507 [1896].)
To the whole charge — when too broad.] Where a portion of a charge
excepted to is proper, an exception to the whole charge is ineffective, and does
not raise the question whether the charge was correct. (Groat v. Gile, 51
N. Y. 431 [1873]; O'Leary v. Walter, 50 id. 683 [1872].)
Objection to certain phrases of a charge must be taken specifically.]
Where counsel believes that the charge is misleading, through certain phras.'s
inserted in tlie proposition, which is otherwise correct, it is necessary for him
to take specific exception to the proposition o'bjected to, in unmistakable
language. A single objection to the several propositions of the charge, if one
of them is correct, wiU not avail. (Ensign v. Hooker 6 App. Div. 425
[1896].)
Exception to charge — need not repeat the portion objected to.] It
is not essential to an exception to a portion of a charge to repeat the Ian-
250 CouETs OF Recoed. [Eule 32
guage excepted to, although this is strictly the more accurate practice; it is
sufficient if the portion objected to is pointed out with such accuracy that
there can be no misapprehension as to the application of the exception.
(People ex rel. Daily v. Livingston, 79 N. Y. 279 [1879]. See, also, Schmalz
V. Hauseman, 7 Civ. Proc. R. 414 [New York City Ct. 1885] ; McGinley v.
U. S. Lite Ins. Co., 77 N. Y. 495 [1879].) It is not necessary to suggest an
amendment or chaiige. (Freund v. Paten, 10 Abb. N. C. 31 [N. Y. Com. PI.
Gen. T. 1882].)
Request to charge, which simply repeats or separates the charge al-
ready given.] Where the requests to charge merely repeat in diflFerent
language what has already been charged, or separate propositions already
charged, the refusal to charge as requested is not error. (Raymond v. Rich-
mond, 88 N. Y. 671 [1882].)
Grounds thereof need not be stated.] In an exception to a judge's
charge, counsel is not bound to state the grounds of his exception. (Gold-
man V. Abrahams, 10 N. Y. Wkly. Dig. 108 [Gen. T. April, 1880]. See Jordan
V. Bowen, 11 N. Y. Wkly. Dig. 72 [Gen. T. 1880].)
Where the error in the charge is harmless.] Where the court charges
that the jury may infer a certain thing and errs in so doing, but the error is
harmless, the fact being immaterial, the judgment will be affirmed notwith-
standing an exception to such charge. (Ginna v. Second Ave. R. R. Co., 67
N. Y. 596 [1876]; Vorce v. Oppenheim, 37 App. Div. 69 [1899].)
A statement by the judge of his recollection of the testimony.] The
trial judge has no right to state his recollection of what a witness had sworn
to on a former trial, as it is not legal evidence of the fact. (People v. Corey,
157 N. Y. 332 [1898].)
Statement by the judge of his intention to throw the case out of
court.] A statement made by the court to counsel in ruling on the admission
of evidence, that he meant to throw the action out of court at the first oppor-
tunity, constitutes reversible error, although the jury are instructed not to
pay any attention to it. (Swan v. Keough, 35 App. Div. 80 [1898].)
Comment by the court upon the testimony.] The fact that the trial
court, in the charge of the jury, comments upon the testimony is not a groimd
of objection, provided the jury are instructed that they are the sole judges of
the facts. (Sindram v. People, 88 N. Y. 196 [1882].)
An expression of its opinion by the court.] An expression of an
opinion by the court as to a question of fact, if no direction be given to the
jury to follow it, is not the ground of an exception. (Massoth v. Del. & H.
Canal Co., 04 N. Y. 524 [1876].)
Expression of an opinion in a charge — when ground for a new triaLJ
When a new trial should be granted, because of the expression of an opinion
by the judge which is calculated to influence the jury. (Richardson v. Van
Nostrand, 43 Hun, 299 [1887].)
Exception to specific proposition or remark of the trial judge must be
clear. (Lindheim v. Duis, 11 Misc. Rep. 16 [N. Y. Supr. Ct. 1895].)
Ambiguous charge — exception to.] When a charge is made in am-
biguous language to a jury, and the counsel except, stating their understanding
Kiile 32] Gejstebal Rules of Peactice. 251
of the charge, if the judge does not intend to lay down the rule as suggested
by the counsel, he must disclaim the interpretation of the counsel and state
the rule accurately; and if he does not do so he will be assumed to have
adopted the interpretation suggested by the counsel. (Price v. Connor, 15
Alb. Law J. 256 [Court of Appeals, 1877].)
, Exception to the direction of a verdict sufScient — not necessary to
demand submission of facts to the jury.] An exception to a direction of a
verdict for plaintiff is sufficient to present the point on appeal that there were
questions of fact for the jury; it is not necessary to request the submission
of any sxich facts. (First Nat. Bk. v. Dana, 79 N. Y. 108 [December, 1879] ;
Trustees of East Hampton v. Kirk, 13 Alb. L. J. 233 [Court of Appeals,
1877].)
General exception to the direction of a verdict — when insufficient.]
To justify a reversal, the exceptions must present the specific point for review,
and a general exception to the direction of a verdict is not sufficient to raise
the objection that the proper judgment, if against appellant, was nonsuit.
Law V. Pemberton, 10 Misc. Pep. 362 [N. Y. Com. PI. 1894].)
A single exception to adverse rulings on several requests for a verdict
— when unavailing.] Where plaintiff moves for a verdict on the whole case,
and on a counterclaim, and on the question of damages, uniting the several
requests and taking but one exception to an adverse ruling, if he is not
entitled to have all granted the single exception is unavailing. (Myers v.
Rosenback, 14 Misc. Rep. 638 [1895].)
Exceptions to direction of verdict — when new trial ordered.] Where
the case goes up to the Gteneral Term on a verdict directed subject to its
opinion without qualification, exceptions cannot be heard, the facts being
uncontroverted ; but if exception to the direction of a verdict for the defendant
is taken, it raises the question of plaintiff's right to go to the jury, and if the
court finds that there is a question of fact, it will order a new trial. ( Clark-
son V. Western Assurance Co., 92 Hun, 527 [1895].)
Exception to direction of a verdict — question raised.] On an excep-
tion taken to the direction of the court to the jury to find a verdict for the
plaintiff, the question is raised whether there is any question to be submitted
to the jury on conflicting evidence. (Rauth v. Scheer, 20 Misc. Rep. 689
[N. Y. City Ct. 1897].)
Excepting to the direction of a verdict merely raises the question
whether any issue of fact should have been submitted to the jury. (Walker
V. Phoenix Ins. Co., 89 Hun, 333 [1895].)
Question of special damages raised without exception to the direction
of the verdict. (Sheldon v. Baumann, 19 App. Div. 61 [1897].)
Request to court to direct a verdict — effect of.] When a defendant
requests the court to direct a verdict in his favor he thereby assumes that
there is no dispute as to the facts, and allows the justice presiding to be sub-
stituted in the place of the jury, and is concluded by his findings. He cannot,
therefore, upon appeal under a general exception to the subsequent direction
of a verdict in favor of the plaintiff', insist that there were questions in the
case which should have been submitted to the jury. (Strong v. The N. Y.
252 CouETS OF Kecoed. [Rule 32
Laundry Manuf. Co., 6 Hun, 528 [1876]. See Ormes v. Dauchy, 11 N. Y.
Wkly. Dig. 142 [Court of Appeals, 1880].)
Result of requests by both parties for the direction of a verdict.]
Where both parties ask the direction of a verdict, the court determines the
facts as well as the law. A direction in favor of plaintiff, where defendant
was the sole witness in his own behalf, is conclusive of the issues of fact
against him. (Guilford v. Mulkin, 85 Hun, 489 [1895] ; Schram v. Werner,
81 id. 561 [1894].)
Exception to denial of request to direct a verdict, which fails to
specify the ground thereof.] In such a case defendant cannot maintain his
exception on appeal on showing that the facts found did not authorize the
verdict, provided the failure of proof might have been supplied if the atten-
tion of the opposite party had been called to the defect. (Haines v. N. Y.
C. & H. R. R. R Co., 145 N. Y. 235 [1895].)
Failure to except to a direction of judgment — only exceptions re-
viewed.] In the absence of an exception to the direction of a judgment for
plaintiff, the correctness of the decision cannot be reviewed, but only the
exceptions taken on the trial. (Poulke v. Thalmessinger, 1 App. Div. 598
[1896].)
Error in a charge based upon a fact assumed by all the parties to
exist.] An exception to an error in the charge of a court as to the measure
of damages will not be sustained on appeal when the charge was based upon
a fact the existence of which was assumed by the court and both parties
upon the trial. (Vail v. Reynolds, 42 Hun, 647 [1886].)
Instruction to the jury in the absence of defendant's counsel.] If the
court has no right to instruct the jury in the absence of defendant's counsel,
tlie point is available without an exception. If the right exists but is abused,
the point can be raised on a motion for a new trial which has been made
on a case, and the appeal from the order denying a new trial brings the
question before the appellate court. (Cornish v. Graff, 36 Hun, 160 [1885].)
Objection to improper matter in a verdict — when to be taken.] Ob-
jections to improper matter in a verdict should be ui-ged at the time the
verdict comes in and before it is recorded, so that the jury may then be sent
back to reconsider and correct it, as they see fit, either in form or substance;
otherwise the objection will, on appeal, be deemed to have been waived.
(Brigg V. Hilton, 99 N. Y. 517 [1885].)
REVERSAL WITHOUT NEW TRIAL — Judgment for appellant without
new trial.] When the General Term may order a judgment for the appellant
without directing a new trial. (Price v. Price, 33 Hun, 432 [1884].)
EVIDENCE ON APPEAL — When the court will, on appeal, receive a doc-
ument imperfectly described in the case.] Where one of the conditions of a
lease was very imperfectly shown upon the hearing of a motion, the General
Term may, upon the appeal from the order, receive such lease for the pur-
pose of ascertaining the fact. (Moller v. Duryea, No. 2, 21 Wkly. Dig. 459
[Sup. Ct. 1885].)
Documentary^ evidence on appeal — when allowed.] The practice of
allowing documentary evidence to be given on appeal is confined to supply-
Eule 32] General Rules of Peactice. 253
ing defects in proof already given on tlie trial of the same facts. Independ-
ent and additional evidence is not allowed, especially if other counter evidence
might have been given had the question been raised at the trial. (Hall v.
The United States Reflector Company, 21 Wkly. Dig. 37 [Gen. T. 188.5].)
Production of record of certificate of tax sale on appeal.] A record
may be produced on the hearing of an appeal from a judgment to sustain the
judgment as a record of the certificate describing the property sold on the
tax sale. (Toole v. Bd. of Supervisors of Oneida, 1,3 App. Div. 471 [1897].)
Receiving a decree on appeal to sustain a judgment.] Where no ques-
tion was raised at the trial as to the appointment of plaintiff as administra-
tor, though the pleadings put it in issue, held, that to sustain a judgment in
his favor a certified copy of the decree appointing him could be filed on
appeal. (Hewett v. Chadwick, 8 App. Div. 23 [1896].)
A record may be produced for the first time before an appellate court.
(Harlem B. M. & F. R. Co. v. Town Board, 87 Hun, 270 [1895].)
Admissions.] Admissions not received in evidence upon the trial, not
received on appeal. (People ex rel. Mardiattan R. Co. v. Barker, 14G N. Y.
304 [1895].)
Court of Appeals — confined to findings of fact by referee.] The Court
of Appeals is confined to the findings of fact made by a referee and is not
permitted to look into the record for additional facts. (Sweet v. Henry, 175
N. Y. 268 [1903].)
Court of Appeals cannot entertain appeal involving nothing but a ques-
tion of costs.] (Matter of Croker v. Sturgis, 175 N. Y. 158 [1903].)
STATEMENT ON APPEAL — To Court of Appeals.] When a judgment
is rendered by the General Term upon a verdict taken subject to the opinion
of the court, and a statement of facts with the questions or conclusions of
law thereon is prepared as required by section 333 (subd. 2) of the Code of
Procedure and is ma,de part of the record, the facts presented in the state-
ment are the only ones which can be considered upon appeal. (Jaycox v.
Cameron, 49 N. Y. 645 [1872].)
Verdict subject to opinion of the court — statement required.] On ap-
peal to the Court of Appeals from a judgment entered at General Term,
" upon a verdict subject to the opinion of the court," the return must contain
a "statement of the facts, of the questions of law arising thereupon, and
of the determination of those questions by the General Term," as required by
the Code of Civil Procedure (§ 1339) ; without such a statement the appeal
may not be heard. (Cowenhoven v. Ball, 118 N. Y. 231 [1890].)
Where a verdict is taken subject to the opinion of the court at Gen-
eral Term, the judgment of the General Term thereon cannot be reviewed in
the Court of Appeals unless a statement of the facts and conclusions of law
is prepared and filed with the judgment-roll, as prescribed by the Code of Pro-
cedure, section 333. (Reinmiller v. Skidmore, 59 N. Y. 661 [1875].) A state-
ment of facts is essential to a review in the Court of Appeals. (Bridger v.
Weeks, 30 N. Y. 328 [1864]; Leland v. Cameron, 31 id. 115 [1865]; Doty v.
Carolus, Id. 547 [1865]; Essex County Bk. v. Russell, 29 id. 673 [1864].)
254 Courts of Recced. [Rule 32
GENERAL TERM — Review of facts by.] Where the General Term has a
right to review the facts on appeal from a judgment entered upon the report
of a referee, it is its duty to pass upon them from the evidence. (Godfrey v.
Moser, 66 N. Y. 250 [1876].)
APPELLATE DIVISION — Review of facts by.] The Appellate Division
has power on appeal from a judgment of the Municipal Court of the city of
New York to review the facts and reverse the judgment. (Blumenthal v.
Levy, 82 App. Div. 536 [1903].)
When order of, reviewable by Court of Appeals.] An order of the
Appellate Division reversing, solely upon questions of law, an order denying
an application by a purchaser at a partition sale to be relieved of his pur-
chase is reviewable by the Court of Appeals. (Parish v. Parish, 175 N. Y.
181 [1903].)
When Court of Appeals concluded by unanimous decision of.] When
a judgment upon a decision of the trial court is unanimously affirmed by
the Appellate Division, the Court of Appeals is concluded thereby. (Hutton
V. Smith, 175 N. Y. 375.)
COUNTY COURT — Judgment on the report of a referee.] In an action
commenced in a Justice's Court and retried, how reviewed. Motion for new
trial need not be made in the County Court. (Cook v. Darrow, 22 Hun, 306
[1880].)
STENOGRAPHER'S MINUTES — Use of — disapproved.] The practice of
using the stenographer's minutes as the evidence in the " case " condemned.
(Howland v. Woodruflf, 60 N. Y. 73 [1875] ; Jewell v. Van Steenbiu-gh, 58 id.
85 [1874]; Ryan v. Wavle, 4 Hun, 804 [1875].)
When they control.] Where in the settlement of a case there is a
dispute as to words, the stenographer's minutes must control. (Xelson v.
N. Y. C. & H. R. R. R. Co., 1 Law Bull. 15 [Com. PI. Sp. T. 1878].)
How corrected.] The remedy for a stenographer's neglect to note an
exception is by moving to resettle the ease. (Toner v. Mayor, 1 Abb. N. C.
302 [Chamb. 1876].)
Matter not appearing in minutes.] It is the duty of the trial judge,
and not of the stenographer, to settle a case, and it is no answer to a motion
to correct a case by inserting matters alleged to have taken place on the
trial that they do not appear in the stenographer's minutes. (Foster v.
Standard Nat. Bank, 21 Misc. 8 [1897]. See Code of Civil Procedure, § 1007.)
Copy of stenographer's minutes; when the amount paid for them will
not be allowed as a disbursement.] The plaintiff procured from the stenog-
rapher a copy of his minutes taken on a trial and paid therefor $40, which
was allowed as a disbursement. The trial judge made a certificate in which
he stated that on the trial he desired the stenographer's minutes to be fur'
nished to the court and that the stenographer's fees be taxed as a disburse-
ment. Held, that as it did not appear that the plaintiff's copy was procured
or used for that purpose, the item should have been disallowed. (Pfandler
Barm Extracting Company v. Pfandler, 39 Hun, 191 [1886].)
When allowed as a disbursement.] Tn the First Department the cost
of a copy of the stenographer's minutes obtained to prepare amendments to
Eule 33] General Rules of Peactioe. 265
a case on appeal is a taxable disbursement, since by Rule 32 a party pro-
posing amendments to a case must refer at the end of each amendment to
the proper page of such minutes, and this compels the party proposing such
amendments to procure a copy of the minutes. (Ridabock v. Metropolitan
El. R. Co., 8 App. Div. 309 [1896]; Park v. N. Y. C. & H. R. R. Co., 57 id.
566 [1901].)
Stenographer's minutes in capital cases.] Upon an appeal in a capital
case it is the duty of the county clerk to cause the stenographer's minutes
to be printed literally as filed, without change or alteration of any kind made
after that date. As to whether the power exists in the court to correct
errors or make changes in the minutes after they have been filed, upon due
notice to the defendant to be heard, quwre.
Where changes have been made in the record by the county clerk, the
Court of Appeals has jurisdiction, upon an application of the defendant, to
direct the clerk to make and print the record required by statute. (People
V. Conroy, 151 N. Y. 543 [1897].)
ACTS AND GESTURES OF WITNESSES — Wot presented by case.] Evi-
dence consisting of acts and gestures of witnesses is not presented to the
appellate court by a bill of exceptions, and where it does not present a por-
tion of the evidence, the court must assume that such evidence was sufficient
to authorize the charge by the judge below. (Mahoney v. The People, 3 Hun,
202 [1874].)
View of premises by a referee.] Eifect on an appeal of the fact that
a referee has by consent of the parties inspected certain premises and acted
upon the knowledge so acquired. (Clafiin v. Meyer, 75 N. Y. 266 [1878].)
As to points, see notes under Rule 41.
KULE 33.
Omitting to Make a Case or Serve Amendments — Effect of.
If the party shall omit to make a case within the time above
limited, he shall be deemed to have waived his right thereto ; and
when a case is made, and the parties shall omit, within the several
times above limited, the one party to propose amendments, and the
other to notify an appearance before the jiidge or referee, they
shall respectively be deemed, the former to have agreed to the
case as proposed, and the latter to have agreed to the amendments
as proposed.
Rule 35 of 1858. Eule 42 of 1871. Rule 42 of 1874. Rule 33 of 1877,
amended. Rule 33 of 1880. Rule 33 of 1884. Rule 33 of 1888, amended.
Rule 33 of 1896.
See notes under Rule 32.
256 CouETS oi<' Eecoed. [Rule 33
CODE OF CIVIL PROCEDURE.
§ 997. Case on appeal or on a motion for a new trial — when necessary.
§ 998. When not necessary.
FAILURE TO SERVE A CASE — Practice on.] This court will no longer
allow judgments to be affirmed on the call of the calendar at General Term
if the case has not been settled and filed (36 How. Prac. 366 [1869]); nor
can the respondent move to dismiss the appeal upon a certified order of the
Special Term declaring the appeal abandoned and uj^on the judgment-roll on
file. He should apply for an order putting the case on the General Term
calendar, and, upon an affidavit of the nonservice of the appeal papers and
on notice to the appellant for the earliest motion day in term, move to strike
the cause from the calendar and for judgment of affirmance. (CaiTaher i-.
Carraher, 1 J. & S. 502 [Gen. T. 1871]; S. C, 11 Abb. [N. S.] 338; 42 liow.
Prac. 458; Phelps v. Swan, 2 Sweeny, 696 [Gen. T. 1870]; Ward v. Central
Park, North & East R. R. R. Co., Id. 701 [Gen. T. 1870] ; Sun Mut. Ins. Co.
v. Dwight, 1 Hilt. 50 [Gen. T. 1856]; contra, Deters v. Groupe, 15 Abb. 263
[Gen. T. 1862] ; S. C, 9 Bosw. 638.)
Appeal cannot be dismissed for.] An appeal cannot be dismissed
because of the failure of the appellant to serve a case and exceptions within
the time prescribed tlierefor; the only effect of the omission is to compel the
party to argue his appeal on the judgment alone. (Berger v. Dubernet, 7
Rob. 1 [Gen. T. 1867] ; Phelps v. Swan, 2 Sweeny, 697 [Gen. T. 1870] ; Brown
v. Hardie, 5 Rob. 678 [Gen. T. 1867] ; Rankin v. Pine, 4 Abb. 309 [Gen. T.
1857].)
Appeal not dismissed for failure to procure the settling and signing of
a case.] An appeal should not be dismissed for failure to procure the case
to be settled and signed, since the appellant may appeal upon the judgment-
roll alone. (Brush v. Blot, 11 App. Div. 626 [1896].)
Case — not necessary for a review in all cases.] A party desiring to
appeal from a judgment entered upon a decision of the court is not obliged
to prepare a case to be settled, but he may file exceptions to the findings of
the trial court upon questions of law and have his appeal heard upon those
exceptions. (Schwartz v. Weber, 103 N. Y. 658 [1886].)
Failure to settle case or order it on file.] Where a case on appeal has
never been settled nor ordered on file by anyone who participated in any
portion of the proceedings, it must be stricken from the calendar. (Williams
V. Lindblom, 87 Hun, 303 [1895].)
Failure to serve a case.] The Rules of Practice alone make the prep-
aration of the case on appeal necessary, and failure to serve a case does not
fall within the provisions of Code of Civil Procedure (§ 1303) relative to
mistakes or defects in perfecting an appeal. (Odell v. McGrath, IG App. Div.
103 [1897].)
Motion to dismiss — what to be shown on.] What should be shown on
motion to dismiss an appeal for not serving papers. (Phelps v. Swan, 2
Sweeny, 690 [Gen. T. 1870].)
Eule 34] Geneeal Kules op Peactice. 257
Default — when opened.] A judgment by default, at a General Term,
dismissing an appeal for not serving copies of the case in due time, will, on
application to the Special Term, be opened, where the appellant shows that
the action and all the proceedings therein were wholly neglected by his attor-
ney and counsel in consequence of his being rendered by his habits incompe-
tent to take charge of them. (Elaton v. Schilling, 7 Rob. 74 [Sp. T. 1868].)
Application for relief from default in serving a case should be made
to the court from the judgment on which the appeal is taken. (Odell v.
McGrath, 16 App. Div. 103 [1897].)
What must be shown to open default.] Where a party makes default
in filing his case on appeal, without applying for an extension of time, not
only good grounds for the delay must be shown, but also for not having
procured an extension of time, in the absence of which proof the appeal will
be dismissed. (Gamble v. Lennon, 9 App. Div. 407 [1896].)
Abandonment of the appeal — default in having a case signed and
filed.] Default in having a case on appeal signed and filed, within ten days
after it has been settled, works an abandonment of the appeal, and relief can
only be had by motion in the court or branch of the court from which the
appeal was taken. (Rothschild v. Rio Grande Western Ry. Co., 9 App. Div.
406 [1896].)
Surety — liability of.] Where an appeal to the General Term is dis-
missed for a failure to serve the printed case and exceptions required by Rule
50 of the Supreme Court, the sureties on the undertaking on appeal given
under sections 334 and 335 of the Code of Procedure are liable to the same
extent as if the judgment had been affirmed. (Wheeler v. McCabe, 5 Daly,
387 [N. Y. Com. PI. 1874].)
Time to make case.] The time to make a case runs from the time of
the trial before a jury or of the motion for a new trial. (Kenney v. Sumner,
12 Misc. Rep. 80 [N. Y. Com. PI. 1895].)
Failure to serve as to one defendant.] Where case and exceptions was
not served on one in whose favor a judgment had been rendered, the appeal
as to him brought up only the judgment-roll for review. (Mcllvaine v. Stev-
enson, 90 App. Div. 77.)
ETJIE 34.
Case and Bill of Exceptions; Contents; Resettlement; Exhibits.
A bill of exceptions shall contain only so much of the evidence
as may be necessary to present the questions of law upon which
exceptions were taken on the trial ; and it shall be the duty of the
judge upon settlement to strike out all the evidence and other
matters which shall have been unnecessarily inserted.
A case or exceptions shall not contain the evidence in haec
verba, or by question and answer, unless ordered by the judge or
referee by or before whom the same shall be settled. But the
facts of the case, together with the rulings on the trial, shall be
17
2i58 CouETs OF Eecoed. [Rule 34
stated in a narrative form, except that where it is claimed by
either party that any particular testimony should be given in
haec verba, the judge or referee who settles the case shall deter-
mine whether or not a proper presentation of the case for review
requires such portion of the evidence to be so stated in haec verba,
whereupon the case shall be made accordingly. With the pro-
posed case the appellant may serve his stipulation that he desires
to review only the conclusion of the jury, court or referee upon
certain specified questions of fact; in which case, the case as
settled shall contain all the evidence bearing upon such questions
•of fact and so much of the evidence as may be necessary to present
the questions of law raised by exceptions taken at the trial; and
it shall be the duty of the judge or referee settling the case to
strike out all other evidence and to certify that all the evidence
relating to the questions of fact which the appellant desires to
raise has been included in the case as settled; and upon appeal
the Appellate Division shall not review any question of fact not
speciiied in such stipulation.
If any case or bill of exceptions does not conform to this rule,
the court before which the same shall be brought for review may
order the same back for resettlement.
Exhibits shall not be printed at length unless the judge or
referee so direct.
When, upon nonenumerated motions, voluminous documents
have been used which are material only as to the fact of their
existence, or as to a small part of their contents, the parties may,
by stipulation, or the court or judge below may, upon notice,
settle a statement respecting the same, or the parts thereof to be
returned upon the appeal from the order, to be used in place of
the original documents.
Rule 36 of 1858. Rule 43 of 1871, amended. Rule 43 of 1874. Rule 34
of 1877, amended. Rule 34 of 1880. Rule 34 of 1884. Rule 34 of 1888,
amended. Rule 34 of 1896. Rule 34, as amended, 1910.
See notes under Rule 32.
BILL OF EXCEPTIONS — Contents of.] A bill of exceptions should only
contain a concise statement of facts, presenting the points intended to be
relied upon as ground of error, or simply so much of the evidence as may
appear to be requisite for that purpose. (Tweed v. Davis, 1 Hun, 2,52 [1874].)
Rule 34] General Rules of Peactice. 259
Settlement of — the court above cannot determine what occurred on
the trial — mandamus.] The court cannot determine whether any particular
thing occurred on the trial. That is necessarily within the province of the
justice settling the case or bill. He cannot be compelled by mandamus to
change his decision. (Tweed v. Davis, 1 Hun, 252 [1874].)
— ^ One exception on the same point, sufficient.] If an exception be taken
on substantially the same state of facts, and on the same point more than
once, a single statement of it is all that is proper in a bill of exceptions.
< Tweed v. Davis, 1 Hun, 252 [1874]; Dilleber v. Home Life Ins. Co., 69
N. y. 256 [1877] ; Carlson v. Winterson, 147 id. 652 [1895].)
Exceptions — to be clearly stated.] It is the duty of an appellant, in
preparing a bill of exceptions, to see tliat the points and exceptions upon
which he relies are correctly and clearly stated. (Jewell v. Van Steenburgh,
58 N. Y. 85 [1874]; Colby v. Town of Day, 75 App. Div. 211 [1902].)
An escaped prisoner cannot have a bill of exceptions settled.] A pris-
oner who has escaped cannot compel the court to settle a bill of exceptions.
(People v. Genet, 50 N. Y. 80 [1872].)
Settled at subsequent term — presumption.] A bill of exceptions set-
tled at a term subsequent to the trial, where there was no objection made at
the time of the settlement, or application made to correct the record, upon the
ground that the bill of exceptions was improperly inserted, will be presumed
to have been made by consent, and an- objection first taken on the argumont
of the case in the Court of Appeals v.'ill not prevail. (Wood v. The People,
59 N. Y. 117 [1874].)
When questions of law only presented — insertion of all the evidence
is improper.] On the settlement of a case presenting only questions of law
the insertion therein of all the evidence is improper. (Markwell v. Oceanic
Steam Nav. Co., 8 Hun, 547 [1876].)
Not sufficient — where evidence consists of acts.] Upon the trial of
the plaintiff in error for robbery in the first degree, the complainant described
the alleged robbery, not only by w.ords but by acts, exhibiting to the jury
the manner and mode of its commission. The judge charged that the evidence
of the complainant was sufficient, if believed, by the jury, to justify the con-
viction of the prisoner. Upon a writ of error, held, that, as the bill of excep-
tions did not present a portion of the evidence, viz., the acts exhibited to the
jury, the court must assume that such evidence was sufficient to authorize
the charge. (Mahoney v. The People, 3 Hun, 202 [1874].)
Separation of exceptions from the case.] Separation of exceptions
from a case and exceptions, to be made in the manner prescribed by the Gen-
eral Rules of Practice. (Code of Civil Procedure, § 997.)
Form of a case and exceptions intended to review rulings upon testi-
mony only.] Under such circumstances the case should contain so much of
the evidence and proceedings as is material to present the questions and excep-
tions sought to be reviewed, and it is not material whether the evidence be
set out in terms or a statement of its effect be made. (Hubbard v. Chapman,
28 App. Div. 577 [1898].)
260 CouETs OF Eecord. [Kule 35
Failure to reduce evidence to narrative form, precludes settlement by
trial judge.] The trial judge will not settle a case which does not comply
with the rule requiring the evidence to be reduced to narrative form, and the
rulings excepted to to be formally stated, followed by a formal statement that
the same were excepted to. (Donai v. Lutjens, 20 Misc. Rep. 221 [Sup. Ct.
Sp. T. 1897].)
— —Duty of attorney.] Attorneys must not shirk labor that tends to
concise records, and court may impose costs of printing records on the plain-
tiff where he .refused to settle a statement as to the contents of certain judg-
ment-rolls which were used by them in opposition to motion to vacate judg-
ment on appeal, but insisted on printing them in full. (HoU v. Builders' Con-
struction Co., 127 App. Div. 727.)
RULE 35.
Case to be Signed and Filed.
Kule 35 repealed, 1910.
CODE OF CIVIL PROCEDXTEE.
§ 1280. Controversy submitted without action — on filing of papers it be-
comes an action.
See notes under Rule 32.
ORIGINAL PAPERS — Must be filed.] Under this rule the moving party
must, within ten days after the settlement of the ease, file with the clerk of
the court a copy of the case as settled, and the original papers; that is, the
case and amendments as they came from the judge or referee, with the cor-
rections or allowance® made by him. (Parker v. Link, 26 How. Prac. 375
[Sp. T. 1864].)
EXTENSION OF TIME — To file case.] The covu-t has power to enlarge
the time to file exceptions and serve a case, notwithstanding the prescribed
period for so doing has elapsed. (Strong v. Hardenbergh, 25 How. Prac. 438
[Gen. T. 1862] ; Sheldon v. Wood, 14 id. 18 [Sp. T. 1857] ; Bortle v. Mellon,
14 Abb. 228 [Sp. T. 1862]. See Beach v. Gregory, 3 id. 78 Gen. T. 1856];
S. C, 2 id. 204.)
Does not extend time to appeal.] An extension of the time to file and
serve exceptions, or to serve a case with exceptions, does not extend the time
to serve a notice of appeal; nor does an extension of the time to appeal,
per se, extend tlie time to file and serve exceptions, or a case with exceptions.
(Sails v. Butler, 27 How. Prac. 133 [Gen. T. 1863].)
Failure to file case — remedy of respondent.] Where the appellant
fails to file the case in accordance with Rule 33, the respondent should take
an order to file the same, and should move to strike the cause from the cal-
endar, and for judgment ; his remedy is not a motion that the appeal be dis-
missed. (Davidge v. Coe, 30 St. Rep. 793 [N. Y. Supr. Ct. 1890].)
Kule 35] Geneeal Eules of Peagtige. 261
Failure to file case — remedy of appellant.] Where appellant's attor-
ney has failed to obtain the signature of the judge, and file the case within
ten days after its settlement, his proper course is a motion to open his default,
when, if the application is granted, he will be in a position to have his case
regularly filed. (Rothschild v. Rio Grande R. Co., 9 App. Div. 406 [1896].)
Default in filing case — excuses necessary to prevent dismissal of
appeal.] Where a party makes default in filing his case on appeal, without
applying for an extension of time, not only good grounds for the delay must
be shown, but also -satisfactory reasons why an application for e.Nitension of
time was not made before the time expired, in the absence of wliich proof the
appeal will be dismissed. (Gamble v. Lennon, 9 App. Div. 407 [1896].)
Default in procuring, signing and filing of case — relief.] Default in
having a case on appeal signed and filed within ten days after it has been
settled works an abandonment of the appeal, and relief can only be had by
motion in the court or branch of the court from which the appeal was taken.
(Rothschild v. Rio Grande Western Ry. Co., 9 App. Div. 406 [1896].)
See notes on page 238.
Power to compel the filing of a case after its abandonment.] A plain-
tiff having been nonsuited', her attorney made a ease and exceptions, which
were settled and ordered filed. He, however, neglected to file them, and served
the defendant with a notice that the case and exceptions had been abandoned,
and ten days later began a new action. The defendant then procured an order
requiring the plaintiff to file the case and exceptions. Held, that the court
had no power to grant the order. (Noonan v. N. Y., L. E. & W. R. R. Co.,
63 Hun, 600 [1892].)
Where the trial justice enters an order declaring the appeal abandoned, a
motion will not lie in the Appellate Term to open his default in having failed
to file and serve his printed case. (Baylor v. Levy, 113 N. Y. Supp. 802.)
EVIDENCE — A case is prima facie evidence of the facts stated in it.]
After a case or exception shall have been settled and filed with the clerk, it
may be taken, in the further progress of the action, as prima facie evidence
of the facts therein stated. (Van Bergen v. Ackles, 21 How. Prac. 314 [Sp. T.
1861].)
DISMISSAL OF APPEAL — Failure to procure settlement and signing of
case.] An appeal should not be dismissed for a failure to procure a case to
be settled and signed, since the appellant may appeal upon the judgment-roll
alone. (Brush v. Blot, 11 App. Div. 626 [1896].)
Failure to renotice case for settlement, after substitution of attor-
neys.] Where, after a case on appeal was settled, respondent's attorney died,
and another attorney was substituted, but no proceedings were taken to have
the case settled, held, that while the appellant was chargeable with laches in
failing to re-notice the case for settlement, an absolute dismissal of the appeal
would not be ordered, no order directing the ease to be filed or declaring it
abandoned having been procured by respondent. (N. Y. Land & Improvement
Co. V. Chapman, 14 Misc. Rep. 187 [N. Y. Sup. Ct. 1895].)
262 lOouKTs OF Eecoed. [Rule 36
RULE 36.
Issue of Fact — Neglect to Bring to Trial — Causes Where an Attachment
Has Issued or the Defendant is Under Arrest Preferred — Calendar
Practice.
Whenever an issue of fact in any action pending in any court
lias been joined, and the plaintiff therein shall fail to bring the
same to trial according to the course and practice of the court, the
defendant, at any time after younger issues shall have been tried
in their regular order, may move at Special Term for the dismissal
of the complaint, with costs.
If it be made to appear to the court that the neglect of the
plaintiff to bring the action to trial has not been unreasonable,
the court may permit the plaintiff, on such terms as may be just,
to bring the said action to trial at a future term.
Whenever in any action an issue shall have been joined, if the
defendant be imprisoned under an order of arrest, in the action,
or if the property of the defendant be held under attachment, the
trial of the action shall be preferred.
Every cause placed upon the calendar of the Trial Term or
Special Term for the trial of equity cases shall be moved for argu-
ment or trial when reached in its order, and shall not be reserved
or put over except by the consent of the coiirt unless otherwise
. permitted by special rule ; and if passed without being so reserved
or put over, it shall be entered on all subsequent calendars as of
date when passed, and no term fee shall be taxed thereon for any
subsequent term.
Rule 45 of 1874. Rule 36 of 1877, amended. Rule 36 of 1880. Rule 36
of 1884. Rule 36 of 1888, amended. Rule 36 of 1896, amended.
CODE OF CIVIL PROCEDURE.
I 791, subd. 10. Preference on calendar given wherever it is authcized by
the General Rules of Practice or by special order.
§ 792. Preference in the case of mandamus or prohibition.
I 79*3. Where the preference depends upon faces vehich do not appear —
order on notice necessary.
% 821. Dismissal of complaint for failure to serve summons upon codefend-
ant of applicant.
§ .8£2. Where plaintiff unreasonably neglects to proceed in the action.
Kule 36] General Rules of Practice. 263
§ 978. Arrangement on calendar and disposition of issues.
§ 979. Disposition of the issues when no jury is present.
§ 980. Either party may bring the issues to trial.
FAILURE TO PROSECUTE — Dismissal — as to rule in districts other than
the first.] In an action in which there is but one defendant, his only remedy
for the failure of the plaintiff to bring the cause to trial is to notice it for
trial on his part and take judgment of dismissal if the plaintiff fail to appear
when called. (Winchell v. Martin, 14 A'bb. Pr. [N. S.] 47 [Sp. T. 1872], and
note. See Society for Ref., etc., v. Newberger, 2 Law Bulletin, 93 [18S0].)
What not sufficient delay to defeat a motion for a dismissal.] What
is not such delay in moving to dismiss for want of prosecution as will defeat
the motion. (Hawley v. Seymour, 8 How. Prac. 96 [C. and Sp. T. 1853].)
Cause reserved for three years — motion to dismiss denied.] Where a
cause has been reserved generally for a period of nearly three years, a motion
to dismiss should be denied upon the offer of plaintiff to try the ease the first
day of the next term. (Clare v. Crittenden, 34 St. Rep. 120 [Sup. Ct. 1890].)
Failure to proceed for two years — not a ground for the dismissal of
the complaint.] A complaint should not be dismissed nor an injunction order
vacated in an action to enforce liability of stockholders, simply for a failure to
proceed with the suit for two years. (Cochrane v. American Opera Co., 30
St. Eep. 13 [Sup. Ct. 1890].)
Failure to proceed.] A cause should not be treated as a live issue
solely for the attorney's protection, as his rights accrued when he had notice
of the settlement. (Crisenza v. Auchmuty, 121 App. Div. 611.)
When plaintiff has done nothing to bring action to trial for three
years after issue joined, a prima fade case of laches is established, the plain-
tiff is under the burden of showing a good excuse. (Regan v. Milliken Bros.,
123 App. Div. 72. See Andrews v. Hedden & Sons Co., 116 App. Div. 231.)
When laches of defendant will bar order dismissing complaint for un-
reasonable delay. (Jacob v. Marks, 26 Misc. Rep. 670.) Wlien plaintiff
fails to do anything for three years, prima facie case of unreasonable neglect
is made out. (Fisher Malting Co. v. Brown, 92 App. Div. 251.)
When defendant estopped to charge plaintiff with laches. (McHugh v.
Met. St. Ry. Co., 52 Misc. Rep. 588.)
When defendant has not 'served notice he cannot move case for trial.
(Haberstitch v. Fischer, 67 How. Prac. 318.)
Failure to proceed for nearly six years, is prima facie case of unrea-
sonable delay.] A prima facie case of unreasonable delay in prosecuting
action is presented, where it has remained at issue for nearly six years with-
out any step being taken by plaintiff to bring it to trial, where younger issues
have been tried. (Seymour v. Lake Sbore & M. S. R, Co., 12 App. Div. 300
[1896]; Zafarano v. Baird, 80 App. Div. 144 [1903].)
Failure of defendant to notice the case for trial, and other circum-
stances, justify denial of motion to dismiss th; complaint on conditions —
reasonable conditions.] Where, though an action of ejectment had been pend-
ing for three years, without steps being taken to bring it to trial, defendant
264 CouETS OF Recoed. [Rule 36
did not put it on the calendar and no case against another defendant mig'ut
be brought as a test case, held, that a motion to dismiss the complaint for
want of prosecution might properly be denied on condition of the payment of
costs of the motion and stipulating to proceed before a referee. (Graham v.
Ackley, 21 App. Div. 416 [1897].)
Dismissal for failure to prosecute when properly denied — what are
unreasonable conditions of relief.] Plaintiff neglected for three years to bring
an action of ejectment to trial, and meanwhile younger issues on the calendar
were reached and tried. Defendant had the option of putting the case on
tile calendar and moving it for trial, but failed to do so. Held, that a motion
to dismiss for want of prosecution might properly be denied upon reasonable
conditions, but that conditions that plaintiff should consent to the creation
of a lien in favor of the defendant upon the land, for a large sum, in addition
to paying costs, were unreasonable. (Grah-aan v. Ackley, 41 App. Div. 416
[1897].)
What laches justify dismissal.] Where a motion is made in November,
1898, 'to dismiss for want of prosecution, the complaint in an action which
was at issue in March, 1894, and the plaintiff, upon an affidavit, stating that
he had forgotten the pendency of the action, and that he was desirous of going
to trial, and that if the motion were denied, he would immediately place the
cause on the calendar for trial, obtains an order denying the motion on condi-
tion that he serve notice of trial and place the cause on the calendar for the
next term, and pay the costs of the motion, it is inciunbent upon him
promptly to enter the order, and to comply with the conditions imposed, and,
upon his unexcused failure so to do, the Ajipellate Division considered that
upon a renewal of the motion made in March, 1899, the Special Term should
have dismissed the complaint. (Silverman v. Baruth, 42 App. Div. 21 [1899].)
Laches of defendant who has set up counterclaim,] Where a defend-
ant has imposed a counterclaim and has demanded thereon affirmative relief
in an action triable by a jury, his motion to dismiss the complaint for the
plaintiff's conceded unreasonable delay in the prosecution will be denied where
the defendant himself has never tried to bring the case to trial as he also
is an actor in the case and should make at least a reasonaJble effort to try it.
( Jaeot V. Marks, 26 Misc. Eep. 670 [N. Y. Sp. T. 1899].)
Direction of judgment for a counterclaini, improper.] The court has
no power in dismissing an action for wani of prosecution, to direct judgment
for the amount of a counterclaim to which a reply lias been interposed. (Ves-
sell V. Marks, 10 Misc. Rep. 46 [City Ct. of N. Y. Gen. T. 1894].)
Discharge from jail of a defendant who fails to pay aUmony.] In an
action for separation, it rests with the discretion of the court to grant a
motion to discharge defendant, who, having failed to pay alimony as ordered,
has been in jail for seven months, unless the plaintiff, who, during that time,
has not noticed the case for trial or put it on the calendai', agrees to try
it at the next term. (Tabor v. Tabor, 42 St. Rep. 16 [N. Y. Supr. Ct. 1891].)
Remedy where the case is not at issue.] Remedy where the case is
not at issue as to all the defendants. (Morris v. Crawford, 16 Abb. 124
[Gen. T. 1863].) ., ,^_,__
Rule 36] General Rules of Phactice. 265
Dismissal for laches of plaintiff, discretionary.] Where a motion to
dismiss an action is predicated upon the laches of the plaintiff therein, which
the plaintiff endeavors to explain upon the motion, the determination whether
such explanation is sufficient rests in the discretion of the court in which the
motion is made, and its conclusion will not, ordinarily, be disturbed. (Mof-
fett, Hodgkins & Clarke Co. v. Peoria Water Co., 83 Hun, 73 [1894].)
Motion therefor may be noticed before the filing of a note of issue.]
A cause need not be placed upon the calendar by the filing of a note of issue,
before a notice of trial and a notice of motion for a preference can be served,
although the motion cannot be granted until the case is upon the calendar.
So held in a case where the preference was on the ground of an attachment
issued. (Warden v. Post Steamboat Co., 39 App. Div. S43 [1899].)
MOTION TO DISMISS — Proper although the defendant has served a cross
notice of trial.] Although the defendant serves a cross notice of trial, but
the cause is never put upon the calendar, he is at liberty to move at Chambers
to have the cause dismissed for want of prosecution. ( Chilcott v. Wadding-
ham, 1 Law Bulletin, 50 [Sp. T. 1879]. See, however. Miller v. Ring, 18 Abb.
244 [Sp. T. 1864]; Fuller v. Sweet, 9 How. Prac. 74 [Sp. T. 1853]; Thompson
V. Krider, 8 id. 248 [Sp. T. 1853] ; MoeUer v. Bailey, 14 id. 359 Sp. T. 1855].)
Right to move to dismiss — not waived.] Defendant's right to move
to dismiss tlie complaint for failure to prosecute, is not waived by his service
of a notice of trial, where the cause is not put upon the calendar, nor is he
required t» place the cause on the calendar before making the motion. (Israel
V. Voight, 12 Misc. Rep. 206 [1895].)
Defendant may move without giving notice of trial.] Defendant may
move to dismiss witliout being himself bound to give notice of trial. (Roy v.
Thompson, 8 How. Prac. 253 [Sp. T. 1852].)
Where both parties notice for trial — neither can move.] Neither
party can move to dismiss where both notice the cause for trial. (Thompson
V. Krider, 8 How. Prac. 248 [C. and Sp. T. 1853] ; Moeller v. Bailey, 14 id. 359
[Sp. T. 1855].)
The granting of the motion is in the discretion of the court.] It is
discretionary with the court to grant or refuse an application to dismiss the
complaint for want of prosecution. (Moifett, Hodgins & Clarke Co. v. Peoria
Water Co., 83 Hun, 73 [1894]; Osborne v. Sellick, 5 Wkly. Dig. 589 [Sp. T.
1878]; Perkins v. Butler, 42 How. Prac. 102 [Sp. T. 1871].)
One of several defendants may move to have the complaint dismissed.
as to him.] Where there are several defendants and the plaintiif fails to
prosecute his action, one defendant may move to have the complaint dis-
missed as to him. (Ward v. Dewey, 12 How. Prac. 193 [Sp. T. 1854] ; Salters
tr. Pruyn, 15 Abb. 224 [Sp. T. 1802].)
What the defendant must show on the motion.] The defendant on the
motion must show that the cause was at issue, so that it could have been
noticed, and that younger issues were tried. (Roy v. Thompson, 8 How. Prac.
253 [Sp. T. 1852].)
266 CouETs OF Kecobd. [Rule 36
A dismissal is a judgment for defendant.] A dismissal for want of
prosecution is a judgment in favor of the defendant. (Tillspaugh v. Dick, .8
How. Prac. 33 [Sp. T. 18.53].)
Motion not proper, pending a stay of plaintiff's proceedings.] A
motion to dismiss for want of prosecution cannot be made pending a stay of
plaintiff's proceedings until the payment of the costs of a former action.
(Unger v. Forty-second St. R. R. Co., 30 How. Prac. 443 [N. Y. Supr. Ct.
Sp. T. 1866].)
Effect of one of several defendants dying.] Effect of the death of one
of several defendants. (See Chapman v. Foster, 15 How. Prac. 241 [Sup. Ct.
Sp. T. 1859]; Code of Civil Procedure, §§ 755-766.)
That plaintiff is dead, and no representatives can be found, no excuse.]
It is no excuse, on a motion to dismiss for want of prosecution, that the
plaintiff is dead and no representative can be found. (Crawford v. White-
head, 1 Code Rep. [N. S.] 355 [Sp. T. 1851].)
Refusal of referee to proceed unless his fees are paid — a ground for
dismissal.] Where a referee refused to proceed with the trial unless his
fees were secured to him, the defendant, after two years, moved to dismiss
for want of prosecution, and the motion was granted unless the plaintiff
should proceed within ninety days. (Ellsworth v Brown, 16 Hun, 1 [1878].)
PREFERENCE — Plaintiff may obtain preference on the ground of the
defendant's arrest or attachment.] The preference of a cause on the ground
of the defendant's imprisonment under an order of arrest in the action or
the attachment of his property is available, not merely to the defendant who
is under arrest or whose property has been attached, but also to the plaintiff,
and the plaintiff may move to obtain such preference. (Knox v. Dubroff, 17
App. Div. 290 [1897].) And this right does not depend upon the value of
the property attached. (McCloskey v. Bridge Company, 26 App. Div. 628
[1898].)
Definition of "trial" or "hearing."] For the meaning of the word
"trial" or "hearing" in section 791 of the Code of Civil Procedure, see Hoff-
man V. Connor (New York Daily Register, June 12, 1878).
By Rule 36, not only the defendant, who is under arrest, or whose
property has been attached, but also the plaintiff, is entitled to make a
motion that the cause be referred.] (Knox v. Dubroff, 17 App. Div. 290
[1897]. Calendar practice discussed in Ward v. Smith, 103 App. Div. 375.)
When party waives right to preference in First Department. (Eck-
hart V. Jones, 45 App. Div. 562.)
Party entitled to preference may withdraw former notice and serve
new one. (Gilbert -v. Finch, 46 App. Div. 75.)
— ■ — Statement at foot of notice of trial that motion will be made to place
case on short cause calendar not sufficient. (Williamson v. Standard Struc-
tural Co., 48 App. Div. 186.)
Section 793, as amended by chap. 173, Laws 1904, held unconstitutional in
181 N. Y. 531.
Eule 37] Geneeal Eules of Practice. 267
EULE 37.
Notice for Argument and of Motions; Order to Show Cause; Where Return-
able; Effect of Order Staying Proceedings When Made Within Ten Days
of Trial Term; Irregularities to be Stated; Judgment by Default in
Divorce Cases.
All questions for argument, and all motions made at Special or
Trial Terms shall be brought before the court on notice, of not
less than eight days, unless a shorter time is prescribed by a judge
or court, under section 780 of the Code, by an order -to show
cause, except that where the attorneys for the respective parties
reside or have their offices in the same city or village, siich notice
may be a notice of five days ; if the opposite party shall not appear
to oppose the party making the motion shall be entitled to -the
order or judgment moved for, on proof of due service of the
notice or order and papers required to be served by him, unless
the court shall otherwise direct. If the party making the motion
shall not appear, the court shall deny the motion on the filing of
the copy notice of motion, or order to show cause.
Siich order to show cause shall in no case be granted unless a
special and sufficient reason for requiring a shorter notice than
eight days shall be stated in the papers presented, nor unless,
in a case where the attorneys for the respective parties reside or
have their offices in the same city or village, a special and
suffilcient reason for requiring a shorter notice than five days shall
be stated in the papers presented, and the party shall, in his
affidavit, state the present condition of the action, and whether
at issue, and, if not yet tried, the time appointed for holding the
next Special or Trial Term where the action is triable. An
order to show cause shall also (except in the first judicial dis-
trict) be returnable only before the judge who grants it, or at a
Special Term appointed to be held in the district in which the
action is triable.
No order, except in the first judicial district, served after the
action shall have been noticed for trial, if served within ten days
of the Trial Term, shall have the effect to stay the proceedings
in the action, unless made at the term where such action is to be
tried, or by the judge who is appointed or is to hold such Trial
Term, or unless such stay is contained in an order to show cause
208 CouKTS OF Eecoed. [Rule 37
returnable on the first day of such term, in which case it shall
not operate to prevent the subpoenaing of witnesses or placing the
cause on the calendar.
When the motion is for irregularity, the notice or order shall
specify the irregularity complained of.
This rule, so far as it permits a judgment by default, or by
the consent of the adverse party, shall not extend to an action
for a divorce, or limited separation, or to annul a marriage.
In the first judicial district, all motions must be noticed to be
heard at and all orders to show cause must be returnable at the
Special Term for hearing of litigated motions, except in cases
where the special rules of the first judicial district shall require
such motion to be made at some other term of the court.
If a notice of motion is served ten days before the return day
thereof, it may, immediately after the prayer for relief and before
the signature, contain the following statement: "Answering
affidavits must be served five days before the return day," in
which case answering affidavits, in order to be used upon the
motion, must be so served. The moving party, upon receiving
such answering affidavits, may serve affidavits in reply at least
two days before the hearing. Such replying affidavits shall be
limited strictly to matters in reply. Affidavits in answer and
reply cannot be read upon the motion if not so served, unless the
court in its discretion, for good caiise shown, may otherwise order.
Rule 39 of 1858. Rule 46 of 1871, amended. Rule 46 of 1874, amended.
Rule 37 of 1877. Rule 38 of 1880, amended. Rule 37 of 1884, amended.
Rule 37 of 1888, amended. Rule 37 of 1896, amended. Rule 37 of 1900,
amended. Rule 37, as amended, 1910.
CODE OF CIVIL PROCEDURE.
§ 767. An order defined.
§ 768. A motion defined.
§ 769. AVhere motions in the Supreme Court should be heard.
§ 770. In first district, motions which elsewhere must be made in court
may be made to a j udge out of court — exception.
§ 771. Transfer of motion from one judge to another.
§§ 772, 773. What judges may malce orders out of court.
S 774. Review of order by another court.
§ 775. Stay of proceedings — when not to exceed twenty days.
§ 776. Second application for the same order.
Eule 37] Geneeal Eules of Practice. 269
§ 778. Penalty for violating tlie last section.
§ 779. Costs of motion, how collected — stay of proceedings.
§ 7S0. Notice of motion to be eight days — unless an oi-der to show cause
be made.
§ 796. Notice or other paper may be served personally.
§ 797. Other modes of service allowed.
§ 798. Double time when served through the post office.
§ 799. When proper to be served on the attorney.
§ 800. When service may be made on the clerk for a nonresident.
§ 801. Service through branch post office in New York city.
§ 885. Deposition of witness to be used on motion, how taken, etc.
§§ 986-989. Motion for change of place of trial.
§ 1229. In actions for divorce, etc., judgments can be rendered only by the
court.
§ 1233. Motion for judgment on special verdict.
§ 1234. On verdict subject to the opinion of the court.
§ 1282. Jlotion to set aside judgment for irregularity, when it may be heard-
§ 1353. Upon what papers an appeal should be heard.
§ 1355. Hearing, etc., at the Appellate Division.
§§ 1380, 1381. Motion for leave to issue execution after death of judgment-
debtor.
§ 1564. Motion for payment of money in partition.
§ 1997. Provisions relating to motions and orders in proceedings instituted
by State writ — same as in actions.
^ 2075. jMotion to set aside mandamus.
§ 2097. Motion to quash, ete., writ of prohibition.
§ 2373 et seq. Motion to confirm, etc., award of arbitrators.
§§ 3236, 3251. Costs of motion.
§ 3277. Motion for judgment for not filing security for costs.
MODE OF SERVICE OF NOTICE — It must, as a rule, be served person-
ally, if not otherwise prescribed.] WTiere the law requires a notice to be
given and does not prescribe the mode of service, it must, as a rule, be served
personally. (Mitchell v. Clary, 20 Misc. Rep. 595 [Sup. Ct. App. T. 1897].)
Service may be made on Saturday afternoon. (Nichols v. Kelsey, 13
Civ. Proc. R. 154.)
Wlien service made by mail on last day, what must be shown. (Green
V. Warren, 14 Hun, 434.)
When service by mail deemed complete. (Vassar v. Camp, 14 Barb.
341.)
Attempted service of answer and demand for bill of particulars by
depositing in attorney's letter-box without inclosing in envelope and without
addressing to anyone not valid service. (Fitzgerald v. Dakin, 101 App. Div.
261.)
Not applicable to service of papers upon nonresidents. (Gottleid v.
Kurlander, 52 Misc. Rep. 89.)
Service must be personal. (Boland v. Sasloski, 56 Misc. Rep. 333;
Matter of Smith. 58 id. 493.)
270 CouETS OF Kecoexi. [Rule 37
When time extended. (Borauk v. Blauner, 93 App. Div. 306.)
When party has appeared, attorney entitled to notice thereof. (Rice v.
Ebele, 55 N. Y. 518.)
NATURE OF NOTICE OF MOTION — It cannot be vacated or quashed on
an independent motion.] A notice of motion, whether by order to show
cause or a notice signed by an attorney, is not a writ or process which can
be vacated or quashed upon an independent motion therefor. (Matter of Van
Ness, 21 Misc. Rep. 249 [Sup. Ct. Sp. T. 1897].)
' When entry in clerk's minutes is in order. ( Gterrity v. Seeger & Guern-
sey Co., 163 N. Y. 119.)
Motion defined. (Matter of Jetter, 78 N. Y. 60il.)
As to relief under application " for such other and further relief."
(Myers v. Rosenback, 58 St. Rep. 513.)
Motion to modify judgment of absolute divorce — where made. (Matter
of Howorth, 59 App. Div. 393.)
Motion for appointment of referee to ascertain damages. (Wilson v.
Dreyer, 65 Misc. Rep. 240.)
Power of County Court to grant order staying proceedings. (Strick-
land V. Henry, 52 How. Prac. 130.) Powar of justice of City Court of . New
York. (Margolles v. Ernst, 34 Misc. Rep. 405.)
APPLICABLE TO TRIAL TERMS ONLY — The stay of proceedings pre-
vented by Rule 37 applies only to Trial Terms, and does not embrace Special
Terms.] Oakley v. Cokalete, 20 Misc. Rep. 203 [Sup. Ct. Sp. T. 1897].)
ORDER TO SHOW CAUSE — Requisites of order to show cause.] An ob-
jection to an order to show cause, that the affidavit upon which the order was
granted contained no special reason why a shorter time than eight days was
required for the hearing of the motion is not to be regarded as too technical.
Such an affidavit should also state the condition of the action and the next
term or Circuit at which the motion could be heard. (Proctor v. Soulier, 82
Hun, 353 [1894].)
Does not indicate any opinion on ths part of the court.] An order to
show cause is, in effect, 'merely a short notice of motion, and is not to be
regarded as an indication of ajiy opinion by the court upon the merits of the
application. (Thompson v. Erie R. R. Co., 9 Abb. [N. S.] 233 [Sp. T. 1870].)
Powers of county judge, considered.] Power of the coimty judge of
the county in which the attorney for the applicant resides, to grant an order
to show cause, returnable at Special Terjn, why an order appointing a receiver
in supplementary proceedings should not be vacated, considered. ( Vandeburgh
v. Cxaylord, 7 Wkly. Dig. 136 [Sp. T. 1878]. See Code of Civil Procedure,
§ 773.)
County judge — when he cannot grant it.] MT-ere a county judge
granted an order to show cause why an ex parte order previously made by
him, should not be modified, and after hearing counsel for both parties
granted the modification, held, that the modification was ineffectual, because
ordered on a contested motion. (Parmenter v. Roth, 9 Abb. [N. S.] 385 [Ct.
of App. 1870].)
County judge can grant an order to show cause, only on eight days'
notice.] A county judge should not grant an order to show cause which is
Eule 37] General Eules of Peactice. 271
r«turnable at a Special Term of the Supreme Court, except on the usual notice
of eight days. (Brown v. Supervisors of Herkimer, 3 How. Prac. [N. S.] 241
[Sup. Ct. Sp. T. 1885].)
Surrogate's Court — not applicable to.] The requirement that the
moving afiadavit shall disclose a reason for granting an order to show cause
does not apply to the Surrogate's Court. (In re Harris, 1 Code Proc. R. 162
[Sur. Ct. 1881].)
Order of surrogate exempting an estate from transfer tax.] The sur-
rogate cannot make an order exempting an estate from payment of the trans-
fer tax without notice to the State Comptroller. (Matter of Collins, 104 App.
Div. 184.)
By whom it may be made]. Such an order to show cause may be
made by a judge or Special Term in any part of the State of New York, pro-
vided it is made returnalble at a Special Term held in the judicial district
embracing the county wherein an issue of fact joined upon the alternative
writ of mandamus which may be granted on the return of the order to show
cause would be triable {lb.)
Order to show cause may be granted by the judge.] An order to show
cause in proceedings instituted under section 27 of chapter 687 of the Laws of
1892 may be granted by a justice of the Supreme Court out of court. (Matter
of Petition of Argus Co., 138 N. Y. 557 [1893].)
Rule applicable only to incidental applications.] It seems, the rule
applies to those incidental applications which are made during the progress
of an action or special proceeding, not to an application which is the founda-
tion of a statutory remedy. (li.)
Rule not binding on the court.] This rule, however, simply prescribes
a rule of conduct for the guidance of attorneys; it dees not exclude a judge at
Special Term, who is engaged at the same time in holding a Circuit from en-
tertaining a motion notice for such term, if, in his judgment, the circumstances
and the rights and interests involved render it proper to do so. (/&•)
Where returnable — by whom made.] An order to show cause, return-
able at Special Term, must be granted at Special Term; and one returnable
before a judge out of court must be made by the judge before whom it i^
returnable. (Hasbrouck v. Ehrich, 7 Abb. 76 [Sp. T. 1858].: Merritt v.
Slocum, 6 How. Prac. 330 [Sp. T. 1851].) These cases were decided prior tti
the adoption of the above rule, and of Rule 39 of 1858, and would seem to be
in conflict with the last sentence of its second paragraph.
Returnable at Special Term held with Circuit.] Such an order may be
made returnable at a Special Term, held with a Circuit. The proceeding is
not " a contested motion " within the meaning of the Supreme Court Rule ( 38 )
prohibiting the noticing of contested motions or the bringing of them to a
hearing at a Special Term held at the same time and place with a Circuit.
(/6.)
When made — within what time and when returnable.] An order to
show cause, prescribing a shorter notice than eight days, or dispensing with it
altogether, should only be made in exceptional cases. (Androvette v. Bowne,
4 Abb. 440 [Sp. T. 1857]; S. C, 15 How. Prac. 75.) It must be returnable
the first day of the term. (Power v. Village of Athens, 19 Hun, 165 [1879].)
1^72 CouBTS OF Eecoed. [Rule 37
-The length of time is discretionary. {H.)
Order returnable after eight days.] An order to show cause may be
returnable after more than eight days. (Gross v. Clarke, 1 Code Proc. E. 17
[Gen. T. 1881].)
The Eule (37) and Code (§ 780) not applicable to it.] Where an order
to show cause is returnable after the expiration of eight days, neither section
780 of the Code nor Rule 37 is applicable to it. (lb.)
Order discretionary.] The order to show cause is discretionary with
the Special Term, and may be set aside in the discretion of the General Term.
(Sixth Ave. R. E. Co. v. Gilbert E. E. E. Co., 71 N. Y. 430 [1877].)
Order returnable on Sunday — void.] An order returnable on a Sun-
day is void (Arctic Fire Ins Co. v. Hicks, 7 Abb. 204 [Gen. T. 18.58.]
Amended nunc pro tunc] Order to show cause, when it may be
amended nunc pro tunc. (Suydam v. Belknap, 1 Law Bull. 41 [Sp. T. 1879].)
What a sufficient reason for short notice of motion to vacate an order
of arrest.] An order to show cause why an order of arrest should not be
vacated, which specifies as a ground for short notice that during the period
the arrest continued in force, defendant's personal character would suffer, and
his business interests would be irreparably impaired, is sufficient. (Shaugh-
nessy v. Chase, 23 Wldy. Dig. [Sup. Ct. 1885].)
Not proper when defendant is not under arrest.] Where the defend-
ant is not in custody, a motion to vacate an order of arrest should not be
•made on an order- to show cause. (Garrett v. Humier, 1 Law Bull. 42 [Sp. T.
1879].)
Not proper to bring on a motion already noticed for a different place.]
After a motion has been noticed, it is irregular for the adverse party to at-
tempt, by an order to show cause, to require the moving party to bring on
his motion at a different place from that fixed by the notice. Any reason why
the miotion should not be heard at the place fixed in the notice, is a matter to
be presented to the court at such place. (Thompson v. Erie Ey. Co., 9 Abb.
[N. S.] 233 [Sp, T. 1870].)
Defective order to show cause — not set aside after an admission of
service given.] An order to show cause which does not expressly direct that
less than eight days' service shall be sufficient, will not be set aside after the
party has given -an admission of due service of the order. (Anonymous, 3 Abb.
N. C. 51, note [Sp. T. 1877].)
Rehearing on order to show cause before same judge.] A motion for
the rehearing of an order directing a judgment-debtor in supplementary pro-
ceedings to deliver assets to the receiver of his property theretofore appointed
by a county judge is properly granted at a Special Term of the Supreme Court
held by the same judge who granted the original order, when the jndge per-
ceives that his former ruling was erroneous because of oversight, misappre-
hension or mistake. (Matter of Crane, 81 Hun, 96 [1894].)
Necessity of resigning order.] The failure of a judge who granted a
stay to resign his order after a modification by another judge so as to permit
a motion to be made, even if such i-esigning be necessary, is cured by a sub-
sequent consent that the motion be heard by the judge who granted the modi-
Uule 37] Geneeal Rules of Peactice. 273
fioation. (Whitman v. Jolinson, 10 Misc. Eep. 730 [N. Y. Oom. PI. Gen. T.
1895].)
Resettlement of order.] Where an order setting aside a verdict and
granting a new trial expresses the decision as rendered a refusal of a motion
for resettlement is proper. If there was an error in granting the order or in
failing to impose proper terms it can be reviewed .on appeal from the original
order. ( Bloomingdale v. Steubig, 10 Misc. Rep. 229 [N. Y. City Ot. Gen. T.
1894].)
Granted after expiration of time to appeal.] A motion to resettle an
order denying a motion to set aside a verdict cannot be granted after the time
to appeal from such order has expired, as the sole effect of so doing would be
to extend the time to appeal. (Stierle v. The Union Railway Co., 11 Misc.
Rep. 124 [N. Y. Com. PI. Tr. T. 1895].)
Inherent power of the court.] The court has inherent power to reset-
tle its own order so as to conform it to the actual adjudication. (Robertson
V. Hay, 12 Misc. Rep. 7 [N. Y. Com. PI. Gen. T. 1895].)
Order to show cause, an order and not an alternative writ of man-
damus.] An order granted at a Special Term of the Supreme Court or by a
judge at chambers, upon a petition or afladavit presented by a relator, requir-
ing the person, officer or board to whom the order is directed, to do the thing
asked for by the relator, or to show cause at a Special Term why such order
or mandamus should not be made peremptory, takes the place of a notice and
is to be deemed merely an application for a mandamus and not in itself an
alternative mandamus, and is not subject to the provision of section 2072 of
the Code of Civil Procedure, which requires an alternative mandamus to be
made returnable twenty days after service thereof. (People ex rel. Crouse
V. Supervisors, 70 Hun, 560 [1893].)
STAY OF PROCEEDINGS — Successive orders staying more than twenty
days — improper.] Successive orders staying proceedings for more than
twenty days each are irregular. (Mills v. Thursby, 11 How. Prac. 114 [Sp.
T. 1852]; Marvin v. Lewis, 12 Albb. 482 [Sp. T. 1861]. See, als.o, Condon v.
Church of St. Augustine, 14 Misc. Eep. 181 [N. Y. Com. PI. 1895].)
What is not a stay of proceedings.] An order extending the time to
answer is not a stay of proceedings. ( Sisson v. Lawrence, 25 How. Prac. 435
[Sp. T. 1862] ; Washbourne v. Langley, 16 Abb. Prac. 259 [Gen. T. 1863].)
Nor is an extension of time to make a case and exceptions. (Thompson
V. Blanchard, 1 Code Eep. 105 ['Sp. T. 1849]; Hoff v. Bennett, 2 id. 139
[Ohamb. 1850]; Sails v. Butler, 27 How. Prac. 133 [Gen. T. 1863].)
Nor is a motion for a new trial. (Bennett v. Austin, 10 Hun, 451
[1877].)
The execution of an undertaking on appeal from an order denying ft
motion for a new trial upon the minutes, will not stay proceedings under
the judgment, without an order of the court. (Carter v. Hodge, 150 N. Y. 532
[1896].)
Section 775 is not applicable to stay for purposes of motion for re-
argument. (F. B. N. Co. V. Mackey, 158 N. Y. 683.) Not applicable to order
18
274 CouETs OF Kecoed. [Rule 3T
extending time to amend answer. (Condon v. Church of St. Augustine, 14
Misc. Rep. 181.) What is a renewal under section 776. (Harris v. Brown,
93 N. Y. 390.) Application to correct order should be made before justice
who heard motion. (Dinkelspeil v. Levy, 12 Hun, 130.)
Stay in partition or foreclosure.] An order to show cause made out
of court and returnable in less than two days, if it contains a stay of proceed-
ings of sale under a judgment in partition or foreclosure, is irregular.
(Asinari v. Volkening, 2 Abb. N. C. 454 [Chamb. 1877].)
Order granting stay in foreclosure, without requiring security, re-
versed.J An order for a stay of a foreclosure suit, gi-anted at the instance
of a subsequent mortgagee, pending condemnation proceedings against the
property, without requiring adequate security to protect the plaintiff, reversed.
(Weekes v. McCormick, 16 App. Div. 432 [1897].)
When granted, in order to allow a party to move for a special jury.]
A stay of proceedings to enable a party to move for a special jury should not
be granted, except at the Trial Term, or by the justice assigned to hold that
part of the Trial Term upon whose calendar the cause is placed. (Walsh v.
Sun Mut. Ins. Co., 2 Roh. 646 [Sp. T. 1864] ; S. C, 17 Abb. 356.)
Nonpayment bf costs of a motion, an absolute stay.] Where the costs
of a motion are not paid, the party in default is absolutely stayed from the
time of the service of the order. (Seward v. Wilson, 3 Abb. N. C. 50 [Sp. T.
1877]; Lyons v. Murat, 54 How. Prac. 23 [Sp. T. 1877].)
No presumption that the costs of a motion are paid.] No presump-
tion exists in favor of the party against whomi the costs of a motion are
awarded that such costs have been paid. (Ager v. Ager, 1 Law Bui. 2 [Sp.
T. 1878].)
Stay for nonpayment of costs waived by notice of trial.] The stay
for nonpayment of costs is waived by giving notice of trial. (Woodbridge v.
Nelson, 1 Law Bull. 27 [Brooklyn- Cir. 1879].)
Effect of a stay of proceedings until pasnnent of costs.] Upon a stay
of proceedings until payment of costs, the party enjoined has no right to
appeal from, an order subsequently made in an action, although the time to
appeal therefrom runs from the date of the order. (Newkirk v. Hooker, 11
Misc. 719 [N. Y. City Ct. 1895].)
Relief for refusal by Trial Term to strike case from calendar is not by
appeal.] Where, on an appeal from an order denying a motion of the defend-
ant to vacate an order placing an action on the special calendar of the Supreme
Court for the trial of short causes and to strike said action from the special
calendar of a Trial Term held by another justice, it appears that judgment
haa already been taken by default, the defendant will not be given relief on
the direct appeal, but will be left to his remedy of making a motion in the
court below.
Such a refusal to strike 'the cause from the calendar wag correct within
Rule 37. (Knowles v. Lichtenstein, 31 App. Div. 496 [1898].)
Stay of trial at Special Term within the rule.] Where, when a cause
on the Special Term calendar in Westchester county is called for trial, and
the defendant's attorney calls to the attention of the court an order to show
Kule 37] Geneeal Etjles of Peactice. 275
cause providing that all iproceedings in the action should be stayed until the
motion arising upon it should be heard and determined, which stay was
granted by a judge O'ther than the judge who held the Special Term at which
the action sihould be tried and was granted within ten days of that Special
Term, and the court at Special Term directs that the order be vacated, so far
as the stay is concerned, and signs an order to that effect, and the attorney
then moves the cause for trial and procures a dismissal of the complaint, he
should not ibe adjudged guilty of a contempt of court.
The action of the Special Term, when the cause was called for trial, was, in
fact, a decision that the stay of proceedings granted by the justice at Chambers
was rendered wholly ineffective by the operation of Rule 37.
The rule, in its present form, is broad enough literally to include a Special
Term for trials. (Oakley v. Cokaletee, 16 App. Div. 65 [1897].)
Terms upon granting a stay.] The court has a wide discretion in
imposing the terms upon granting a stay. (Waring v. Somborn, 12 Hun, 81
[1877].)
Pending an appeal.] A stay granted pending an appeal from a judg-
ment does not give the defendant leave to disregard the judgment. (Sixth
Ave R. R. Co. v. Gilbert Elevated R. R. Co., 71 N. Y. 430 [r877] ; Genet v.
■D. & H. C. Co., 113 id. 472 [1889].)
When it ceases to operate.] A stay of proceedings " rmtil the further
order of the court," does not cease to operate until a further order is actually
entered. (Aokroyd v. Ackroyd, 3 Daly, 38 [Com. PI. 1869].)
When a stay is not terminated by the decision.] 'Where a plaintiff's
proceedings had been stayed until a motion was decided and the decision of
that motion contained a continuance of the stay, and the plaintiff entered
judgment before the service of a copy of the order made upon such decision,
held, that the judgment was irregularly entered and should be vacated. (War-
ren V. Wendell, 13 Abb. Prac. 187 [Sp. T. 1861].)
When a decision terminates the stay, before service of the order.]
Under an order to show cause with a stay of proceedings until the decision of
the motion, a decision terminates the stay before the service of the order made
thereon. (Parmenter v. Roth, 9 Abb. [N. S.] 385 [Ct. App. 1870]. See, also,
Cullen V. Uptegrove & Bro., 101 App. Div. 147.)
IRREGULARITY — What is not a motion to set aside for irregularity.]
Where the notice of motion was " to set aside the judgment for irregularity in
this, to wit, in entering up judgment and filing a record thereof, subsequent
to a full and complete settlement, and for such further relief," etc., held, not
to be a motion to set aside the judgment for irregularity merely, and, there-
fore, that the order made upon such motion was appealable. (Marquat v.
Mulvy, 9 How. Prac. 460 [Gen. T. 1854].)
Failure to file papers not a mere irregularity.] It would seem that
failure to file papers besfore publication, where service of the summons is made
by publication, is not a mere regularity within the meaning of Rule 37.
(Whiton V. The Morning Journal Assn., 23 Misc. Rep. 299 [1898].)
When rule as to specifjnng irregularities is inapplicable.] WTiere a
motion to vacate an attachment is based upon the ground that the facts stated
276 CouETs OF Eecoed. [Rule 37
afford no basis for an attachment, Rule 37, requiring a notice of motion to
specify the irregularity attacked, has no application. (Andrews v. Schofield,
27 App. Div. 90 [1898].)
To what case the rule is not applicable.] Where a party by motion
seeks relief from a sole of mortgaged premises made by a referee upon the
assumption that a regular judgment existed under which the referee was duly
appointed, and that he had given the requisite and usual notice of sale and
proceeded to offer the premises thereunder, and executed his deed in pursuance
lof the sale so made by him, no question as to technical or formal irr^u-
larities required by Kule 46 to be specified in a notice of motion arises, and the
rule does not apply. (Kellogg v. Howell, 62 Barb. 280 [Sp. T. 1872].)
The following irregularities need not be specified:
Issuing an execution in violation of a stay of proceedings.] (Jackson
V. Smith, 16 Abb. 201 [Gen. T. 1863]; S. C, 525 How. Pra«. 476.)
Entering judgment on an answer regarded as frivolous, as if upon a
default.] (Decker v. Kitchen, 21 Hun, 332 [1880].)
A motion to open a sale on the ground of surprise or mistake.] (Kel-
logg V. Howell, 62 Barb. 280 [Sp. T. 1872].)
A jurisdictional defect.] (Blake v. Lucy, 6 How. Prac. 108 [Sp. T.
1850].)
Judgment entered on an irregular confession — a motion to vacate is
jnot a motion for irregularity within the rule.] A motion by a creditor to
vacate a judgment by confession entered against his debtor founded on the
ground that the statement is insufficient to authorize a judgment to be
entered, is not a motion for irregularity within the rule requiring the notice or
order to show cause to specify the irregularity complained of. (Winnebrenner
-V. Edgerton, 8 Abb. Prac. 419 [Gen. T. 1859].)
Rule when applicable.] An order requiring the plaintiff to show cause
why an attachment which it has obtained should not be vacated must specify
the irregularities of which the defendant complains. (Weehawken Wharf Co.
V. Knickerbocker C!oal Co., 22 Misc. Eep. 559 [City Ct. of N. Y. 1898] ; re-
versed in 24 id. 683 [Sup. Ct. App. T. 1898], but affirmed on this point.)
What are irregularities — what laches fatal.] On a motion to set
aside a judgment taken by default for irregularity, because the complaint was
not sworn to, and because there was no legal evidence of the service of the
summons, which was made upon the managing agent of the defendants, there
being no affidavit annexed verifying the signature of the agent who gave an
admission of service, held, that these were irregularities which should have been
taken advantage of promptly and at first opportunity, and that the delay in
moving was fatal to the motion in this respect. Under the facts and circum-
stances presented, the plaintiff was allowed to amend mine pro tunc by filing
his affidavit of verification of the complaint, and was also allowed to annex an
affidavit verifying the signature of the agent of the defendants. (Jones v.
U. S. Slate Co., 16 How. Prac. 129 [Sp. T. 1857].)
Entry of several judgment on joint indebtedness — amended after one
year.] The entry of a several judgment on a joint indebtedness is a mere
irregularity, and may be amended after the expiration of a year. ( Judd Lin-
seed & Sperm Oil Co. v. Hubbell, 19 Alb. Law J. 337 [Ct. Appeals, 1879].)
Eule 37] Getveeal Rules of Peactice. 277
Defects in the summons and copy paper served are irregularities and
must be specified.] Defects in a summons and a copy of papers served are
mere Lrregiilarities, and if not relied on in the notice of motion cannot be re-
garded. The same rule applies in case of an order to show cause, as well as
of a notice of motion. (Skinner v. Noyes, 7 Rob. 228 [Sp. T. 1867].)
Objection that the return day in an order of arrest has been changed
— must be specified.] Where orders of arrest are sought to be vacated on
the ground that the return day has been changed, the irregularity should be
pointed out in the moving papers. A statement in the defendant's affidavit
that at the time of his arrest the orders had no legal effect, for the reason
that the return day had expired, is not a sufficient notice of the particular
ground relied upon. (Lalor v. Fisher, 2 Rob. 669 [Supr. Ct. Gten. T. 1864].)
Objection that an execution was issued after five years without leave.]
On a motion to set aside an execution on the ground that it was issued more
than five years from the entry of judgment without leave of the court, the
ground of the irregularity must be stated in the notice of motion or order to
show cause. It is not sufficient if stated in the moving affidavits only. (Mon-
trait T. Hutching, 49 How. Prac. 105 [Sp. T. 1875].)
Attachment — irregularities in order to show cause.] It would seem
that an order requiring the plaintiff to show cause why an attachment should
not be vacated must specify the irregularities of which the defendant com-
plains. (Weehawken Wharf Co. v. Knickerbocker Coal Co., 22 Misc. Rep. 559
[1898].)
Not sufScient to state it in the moving afEdavits only.] On a motion
to set aside an execution on the ground that it was issued more than five
years from the entry of judgment, without leave of the court, the irregular-
ity must be stated in the notice of motion or order to show cause. It is not
sufficient if stated in the moving affidavits only. (Montrait v. Hutehins, 49
How. Prac. 105 [Sp. T. 1875] ; German- American Bank v. Dorthy, 39 App.
Div. 166 [1899].)
Irregularities must be stated in notice of motion.] When a motion is
made upon the groimd of irregularity, it is not sufficient to state the alleged
irregularity in the moving affidavits alone; it must be stated as well in the
notice of motion. (German- American Bank v. Dorthy, 39 App. Div. 166
[1899].)
The irregularity must be specified in the notice of motion or order to
show cause.] Where the motion is based upon an irregularity, it must be
specified in the notice or order. (People v. Kenney, 2 Hun, 346 [1874] ; Gra-
ham V. Pinckney, 7 Rob. 147 [Sp. T. 1867]; Lewis v. Graham, 16 Abb. 126
[Gen. T. 1863] ; Barker v. Cook, 40 Barb. 254 [Gen. T. 1863] ; S. C, 25 How.
Prac. 190; 16 Abb. 83; Selover v. Forbes, 22 id. 477 [Sp. T. 1859]; Harder v.
Harder, 26 Barb. 409 [Sp. T. 1858] ; Perkins v. Mead, 22 How. Prac. 476 [Sp.
T. 1857]; Roche v. Ward, 7 id. 416 [Sp. T. 1853] ; Colt v. Lambeer, 2 Code
R. 79 [Sp. T. 1849]; Kloh v. New York Fertilizer Co., 86 Hun, 266 [1895].)
A failure to serve a certified copy of an attachment is a jurisdictional
defect, and not an irregularity which must be specified in the notice of
motion. (Weil v. Galium, 75 App. Div. 439.)
278 Courts op Eecoed. [Rule 37
Order not reversed on appeal, because the ground of the motion was
not specified in the notice.] An order will not be reversed on appeal be-
cause the ground was not sufficiently pointed out in the notice of motion,
if it was fully stated in the moving affidavits and distinctly sought to be
met by the opposing affidavits, and was actually discussed in the court be-
low. (Livermore v. Bainbridge, 14 Abb. [N. S.] 227 [Gen. T. 1873].) Ob-
jections cannot bs first raised on appeal. (Miller v. Kent, 10 Wkly. Dig. 361
[Gen. T. 1880].)
Appeal — presumption when irregularity is not mentioned.] Where
the irregularity is not specified in the notice, and the motion is denied, the
court, on appeal, may presume that the motion was denied on the ground
of the defect in the notice. (Lewis v. Graham, 16 Abb. 126 [Gen. T. 1863].)
Action of court below, not reviewable in Court of Appeals.] The de-
termination of the Supreme Court vacating a judgment upon a mere irregu-
larity based upon a rule of practice and not upon a positive statute, is not
reviewable in the Court of Appeals where the party complaining has not
been in any way prejudiced. (Moore v. Shaw, 77 N. Y. 512 [1879].)
All objections — to be presented in one motion.] A party complain-
ing of any proceeding in a cause must embody all his objections in one
motion; the court will not permit him to make separate motions for each
objection he may have to make. (Desmond v. Wolf, 1 Code R. 49 [Sp. T.
1848].)
Motion not extended beyond the object specified.] A motion cannot
be extended to objects not specified in the notice, i. e., a motion to set aside an
execution will not be extended to the judgment. (Alexander v. Esten, 1 Cai.
152 [1803].)
LACHES — In moving, fatal — motion to set aside for irregularity must be
made promptly.] To take advantage of a mere irregularity it is necessary
to move at the earliest opportunity, or to show an excuse for not doing so.
(Lawrence v. Jones, 15 Abb. Brae. 110 [Gen. T. 1862]; Persse v. Willett, 14
Abb. 119 [Sp. T. 1862]; Jones v. U. S. Slate Co., 16 How. Prac. 129 [Sp. T.
18S7].)
What laches in moving to set aside a referee's report is fataL] A
delay of about seven months in making a motion to set aside a report of a
referee for irregularity, although it was claimed that a substantial right was
involved, held, fatal to the motion. (Patterson v. Graves, 11 How. Prac. 91
[G«n. T. 1854.])
Laches of the clerk in entering orders — not to prejudice parties.] It
is the clerk's duty to enter orders of the court without any special direction
to that effect, and his delay or omission to make actual and speedy entry of
orders in the minutes will not be allowed to prejudice the substantial rights of
parties. (People v. The Central City Bank, 53 Barb. 412 [Gen. T. 1867].)
Objection to irregularity must be made at Special Term.] Objections
to the irregularity of papers upon which an order to show cause why a bill of
particulars should not be directed, should be addressed to the Special Term;
if not, on appeal from the order directing the service of the bill of particulars,
it must be held that there has been a waiver. (Wooster v. Bateman, 4 Misc.
Rep. 431 [X. Y. Supr. Ct. 1893].)
Kule 37] Gedsteeal Rules of Peactice. 279
Formal objections waived, if not taken at once.] All objections to the
bringing on of a motion must be made before the grounds of it are entered
into; if not, they will be considered as waived. (Roosevelt v. Dean, 3 Caines,
105 [1805]; Low v. Graydon, 14 Abb. Prac. 444 [Chamb. 1862].)
PLACE OF MAKING MOTION — Stipulation to allow a motion to be mtade
in any county.] Counsel may agree to have a motion in the Supreme
Court heard and decided at a Special Term in any county. (Rice v. Ehle, 65
Barb. 185 [Gen. T. 1873]; S. C, 46 How. Prac. 153].)
At chambers — when heard only by consent.] A contested motion
cannot be heard af a Special Term adjourned to the justice's chambers, except
l)y consent. (Matter of Waldley, 29 Hun, 12 [1883].)
Motion to set aside a substituted service — where to be made.] A
motion to set aside a substituted service of a summons should only be made in
the district in which the action is triable, or a county adjoining that. (Mc-
Carthy v. McCarthy, 54 How. Pra<;. 97 [Sp. T. 1877].)
Motion to consolidate actions in different districts, where made.] A
motion to consolidate several actions may be made anywhere in the district
containing the county in which any one of the actions is triable. (Percy v.
Seward, 6 Abb. 326 [Sp. T. 1858] ; Phillips v. Wlieeler, 16 Abb. [N. S.] -242
[Gen. T. 1874].)
Motions in first judicial district in actions triable therein.] All
motions affecting the rights of parties in actions triable in the first judicial
district must be made therein. (Dupignac v. Van Buskirk, 44 Hun, 45
[1887].)
In the first district — application to vacate an attachment.] An
application to vacate an attachment or order on notice, if made on the original
papers, may be heard in the first district at the term for ex parte business,
where it was granted. (Sturz v. Fisher, 15 Misc. Eep. 410 [Supu Ct. Sp. T.
1896]; Byrnes v. Ladew, Id. 413 [Sup. Ct. Sp. T. 1896].)
In the first district, a motion in an action triable in another district
is improper.] In the first district the Special or General Term of the Su-
preme Court cannot hear a motion upon notice in an action triaible in another
district. (Harris v. Clark, 10 How. Prac. 415 [Sp. T. 1864]; Canal Bank
-V. Harris, 19 Barb. 587 [Gen. T. 1855].)
Moving papers need not show that motion is made in the proper
county.] It is not necessary that the moving papers should show that the
motion is made in the proper county. (Newcombe v. Reed, 14 How. Prac. 100
[Sp. T. 1856].)
Motion to vacate an order of arrest.] Section 568 of the Code of
Civil Procedure does not abrogate the provisions of section 769 of the Code,
requiring motions 'to be made in the judicial district or an adjoining county.
(Sutton V. Sabey, 22 Hun, 557 [1880].)
Motion to dismiss an appeal, to be made at General Term.] A motion
to dismiss an' appeal for irregularity should be made at the General Term.
(Barnum v. Seneca Co. Bank, 6 How. Prac. 82 [Sp. T. 1851]. See as to costs
of such motion, Williams v. Fitch, 15 Barb. 654 [Gen. T. 1853].)
TIME OF ARGUING MOTION — Rights of parties in regard thereto.]
There is no analogy between the rules with regard to the trial calendars and
280 Courts of Recoed. [Rule 37
the regulations as to hearing and decision of motions. Parties have a right
to bring on a motion when they please, and neither side should be forced on,
in violation of a written consent to adjourn. (Lilianthal v. Levy, 4 App.
Div. 90 [1896].)
RENEWAL OF MOTION — Leave necessary.] A motion denied upon the
merits cannot -be renewed without leave. ( Mayor of New York v. Conover, 25
Barb. 514 [Sp. T. 1»57]; S. C, 5 Abb. 252; Cazneau v. Bryant, 6 Duer, 668
[Sp. T. 1857]; S. C, 4 Ablb. 402; Mills v. Thursby, 11 How. Prac. 114 [8p. T.
1852] ; Bellinger v. Martindale, 8 id. 113 [Sp. T. 1853] ; Snyder v. White, 6 id.
321 [Sp. T. 1851]; Bowman v. Sheldon, 5 Sandf. 657 [Sp. T. 1852]; Willet v.
Fayerweather, 1 Barb. 73 [Sp. T. 1847] ; Dodd v. Astor, 2 Barb.Ch. 365 [1847] ;
Pike v. Power, 1 How. Prac. 164 [Sp. T. 1864]; Harker v. McBride, Id. 108
[Sp. T. 1845] ; DoUfus v. Frosch, 5- Hill, 493 [Sp. T. 1843] ; Mitchell v. Allen,
12 Wend. 290 [1835] ; Allen v. Gibbs, Id. 202 [1834] ; Hoffman v. Livingston,
1 Johns. Ch. 211 [1814]; Dunn v. Meserole, 6 Daly, 434 [Com. PI. Gen. T.
1874]; Seaman v. McEeynolds, 52 Supr. Ct. [J. & S.] 543 [1885]; Floersheim
V. Musical Ckjurier Co., 103 App. Div. 388.)
When a motion cannot be renewed without leave of the court.] A
motion made by the defendant in an action to have the complaint made more
definite and certain, and in default of that relief being granted, for a bill of
particulars, having been denied without any leave being given to renew it, a
second motion was made by him for a bill of particulars in reference to the
second cause of action mentioned in the complaint. Held, that the adjudica-
tion upon the prior motion was a bar to the making of the second one.
(Klump V. Garner, 44 Hun, 515 [1887].)
Second motion without leave.] Leave is not necessary for a second
motion, when it is not a. renewal, but is founded on new and subsequent facts.
(Goddard v. Stiles, 1 N. E. 402 [Court of Appeals, 1885].)
When leave to renew, unnecessary.] Leave to renew ex parte appli-
cations, made out of court to a " judge or justice " upon affidavits, is not
necessary. (Belmont v. Erie R. R. Oo., 52 Barb. 637, 643 [Sp. T. 1869]. See,
however. Rule 25, ante.)
Leave to renew — discretionary.] Leave to renew a motion is dis-
cretionary. When granted. (Hall v. Emmons, 9 Abb. [N. S.] 370 [Ct. of
App. 1870] ; Livingston's Petition, 2 id. 2 [Ct. of App. 1866] ; S. C, 34 N. Y.
555.)
As to when leave to reargue will be granted.] '(See Boles v. Duff, 56
Barb. 567 [Gen. T. 1870] ; Webb v. Groom, 6 Rob. 532 [Sp. T. 1866] ; Merrill
V. Merrill, 11 Abb. [N. S.] 74 [Sp. T. 1871].)
Defective papers — the ground of denial of original motion.] Leave
to renew a motion granted, when the motion was denied because of defective
papers. (Wood v. Kimball, 9 Abb. 419 [Sp. T. 1859]; Bellinger v. Martin-
dale, 8 How. Prac. 113 [Sp. T. 1853] ; DoUfus v. Frosch, 5 Hill, 493 [Sp. T.
1843]; Mitchell v. Allen, 12 Wend. 290 [Sp. T. 1835].)
Renewal of denied motion — exception to rule.] The general rvile iJ
that a motion once denied at a Special Term cannot be renewed or heard by
another Special Term, unless by the terms of the order it appeai-s that the
motion was denied for some technical reason not affecting the merits, or leave
Rule 37] Geneeal, Rules of Peactice. 281
is granted, to renew the motion, but this rule has exceptions, and where new
jtnd different facts have arisen a motion may be renewed without consent.
(Noonan v. New York, L. E. & W. R. Co., 68 Huji, 387 [1893] ; Shultze v.
EodewaM, 1 Abh. N. C. 365 [Sp. T. 1876].)
Where leave to renew is granted it should be so stated in the order.]
Dollfus v. Frosch, 5 Hill, 493 [1843].)
When leave to renew is granted at time of application — when renewal
need not be made within a year.] Where a motion to correct a judgment
is made within a year after entry of the judgment, and is denied with leave
to renew, a renewal of the motion pursuant to such leave cannot be objected
to because not made within one year. (Oliver v. French, 41 N. Y. Supp. 106
[Sup. Ct. App. Div. 1896].)
On new facts.] A motion should not be denied merely on the ground
that a motion of the same nature has already been made and denied, if new
facts are presented at the second hearing, such as would be ground for giving
leave to renew. (People ex rel. Wilbur v. Eddy, 3 Lans. 80 [Gen. T. 1870] ;
Butts V. Burnett, 6 Abb. [N. S.] 302 [Sp. T. 1869] ; Bank v. Moore, 5 Hun,
624; Mills V. Thursby, 11 How. Prac. 114.)
On difierent facts.] Where a different state of facts has arisen since
the first motion, a new motion, based upon these facts, may be made as a
matter of right. (People ex rel. Wilbur v. Eddy, 3 Lans. 80 [Gen. T. 1870] ;
Butts V. Burnett, 6 Abb. [N. S.] 302 [Sp. T. 1869] ; Bank v. Moore, 5 Hun,
624; Erie R. R. Co. v. Ramsey, 57 Barb. 449 [Gen. T. 1870].)
On newly-discovered facts.] A motion may be made to vacate or
modify, founded on matters arising or discovered since the first motion, when
no laches is imputable to the moving party. (Cazueau v. Bryant, 6 Duer,
688 [Sp. T. 1857]; S. C, 4 Abb. 402.)
Renewal not granted on grounds known when the original motion was
made.] A renewal of a motion to open a judgment taken by default cannot
be entertained on the ground of a defense which was known to the defendant
when the original motion was made. He should have stated at that time all
that was necessary to secure his success. [Pattison v. Bacon, 12 Abb. Prac.
142 [Sp. T. 1861]; Lovell v. Martin, Id. 178 [Sp. T. 1861]; Schlemmer v.
Myerstein, 19 How. Prac. 412 [Sp. T. 1860] ; Pattison v. Bacon, 12 Abb. 142
[Sp. T. 1861]; S. C, 21 How. Prac. 478.)
Second motion improperly granted, pending a decision of first motion.]
Pending the decision of a motion to correct answer, opposed because the
grounds thereof were not stated in the notice of motion, a new motion for the
same relief was made, the notice withdrawing the former motion. Held, that
the order granting the second motion could be reversed, since the party had
neither paid costs nor obtained leave of the courts to withdraw. (Hoover v.
Rochester Printing Co., 2 App. Div. 11 [1896].)
Not upon cumulative papers.] A motion can only be renewed upon
new grounds, and not upon mere additional or cumulative papers. ( Bascom v.
readier, 2 How. Prac. 16 [Sp. T. 1845]; Ray v. Oonraor, 3 Edw. Ch. 479
[1841].)
When leave granted, will not be reviewed on appeal.] It is discretion-
ary with the court to allow a renewal of a motion on the same or additional
282 CouETS OF Eecoed. [Rule 37
papers, and its decision will not be reviewed on appeal. (Smith v. Spalding,
3 Rob. 615 [Gen. T. 18S4] ; S. C, 30 How. Prac. 339; White v. Monroe, 33
Barb. 650 [Gen. T. 1861]; S. C, 12 Abb. 367; Marvin v. Lewis, Id. 482 [Sp.
T. 1861.] )
Attachment vacated on the merits — when another application im-
proper.] Where an attachment has been vacated by the court, after opposi-
tion, and argument on the merits of the application, another application for
the attachment on substantially the same facts, whether before the same or
another court, will not be entertained. (Schlemmer v. Myerstein, 19 How.
Prac. 412 [Sp. T. I860].)
Attachment against national bank — when motion to vacate may be
made.] Matter of Keller, 116 App. Div. 58; McBride v. Illinois National
Bank, 128 App. Div. 503.)
Defendant not to be continually vexed with the same application.]
The defendant is not to be continually vexed by the same application, nor are
the same or different tribunals to hear and decide upon the same matters
more than once. (Schlemmer v. Myerstein, 19 How. Prac. 412 [Sp. T. I860].)
Motion denied on preliminary objection — may be renewed on the
merits.] A motion denied on a preliminary objection may be renewed on
the merits. (Marvin v. Lewis, 12 Abb. 482 [Sp. T. 1861]; Adams v. Bush, 2
id. [N. S.] 112 [Sp. T. 1863].)
A motion to open an order and for the relief sought may be made at
the same time.] A motion may be properly made to reopen an order and for
the relief to which the moving party claims to be entitled, and it rests in the
discretion of the Special Term whether or not both brajiches of the motion
shall be heard together. (Andrews v. Cross, 17 Abb. N. C. 92 [Sup. Ct. Sp. T.
1885] ; Fowler v. Huber, 7 Rob. 52 [1868] ; Bellinger v. Martindale, 8 How.
Prac. 113, 115 [Sp. T. 1853].)
Motion to strike out an answer a sham, after the denial of a motion
for judgment thereon as frivolous.] (Kreitz v. Frost, 5 Abb. [N. S.] 277 [Sp.
T. 1868]. See Fox v. Fox, 24 How. Prac. 385 [Sp. T. 1862]; Frost v. Flint,
2 id. 125 [Sp. T. 1846].)
Bail — application to allow surrender as a favor, after denial of, as
matter of right.] An application may be made to the court to allow bail
to surrender, as matter of favor, upon excuse for delay, after an application
for exoneration as matter of right has been denied on the ground that the
strict time has passed. (Hall v. Emmons, 9 Abb. [N. S.] 370 [1S70], revers-
ing 8 id. 451, 39 How. Prac. 187, 2 Sweeny, 396.)
Appeal from original motion — motion to renew not precluded by.]
A motion to renew may be granted, although an appeal taken from the original
order is still pending. (Belmont v. Erie R. R. Co., 62 Barb. 637 [Sp. T.
1869].)
The motion will, however, prevent the hearing of the appeaL] (Peel v.
Elliott, 16 How. Prac. 483 [Gen. T. 1858].)
First order a bar.] An order unappealed from and imreversed, is
conclusive against the right of the moving party to the same relief on a second
motion. (Oppenheim v. Lewis, 20 App. Div. 332 [1897].)
B.ule 37] General Eules of Peactice. 283
Application to another judge.] When an order has been denied at
Special Term without leave to renew motion it cannot be granted by another
judge at circuit. (Chamberlain v. Dumville, 50 St. Rep. 356 [Sup. Ct. 1893].)
Motion need not be made before the judge who decided the former
motion.] (Belmont v. Erie R. R. Co., 52 Barb. 637 [Sp. T. 1S69].)
New facts justify — without leave.] New facts justify a renewal,
though leave to renew has not been given. (Butts v. Burnett, 6 Abb. [N. S.]
302 [N. Y. Supr. Ct. Sp. T. 1869]; Bank v. Moore, 5 Hun, 642.)
Without payment of the costs of a prior motion.] Where a renewal
of a motion is made without the payment of costs, if it is mot shown that costs
were ever demanded, an objection to the motion should not be considered
by the appellate court imless it appears that such objection was made on the
hearing below. (Matter of Loftus, 41 St. Rep. 357 [Sup. Ct. 1891].)
Papers once served may be referred to on a subsequent motion.] A
moving party, who desires to use papers which, on a previous motion, have
been recently served on the adverse party, and are still in the latter's posses-
sion, is not bound to serve such papers again, but notice of intention to use
them is sufficient. (Deutermann v. Pollock, 36 App. Biv. 522 [1899].)
TO OBTAIN LEAVE.] Practice as to obtaining leave to renew a motion.
(Wentworth v. Wentworth, 51 How. Prac. 289 [Sp. T. 1876]; Fowler v. Huber,
7 Rob. 52 [Gen. T. 1868].)
Motion for leave and of renewal at same time.] Motion for leave to
renew and such renewal may be made at the same time. ( Fowler v. Huber, 7
Rob. 52 [Gen. T. 1868]; Bolles v. Duflf, 56 Barb. 567 [Gen. T. 1870].)
An appeal pending — not a bar.] The fact that an appeal is pending
is not a bar to an application to renew a motion. (Belmont v. Erie R. R. Co.,
m Barb. 637 [Sp. T. 1869]. See Clumpha v. Whiting, 10 Abb. 448 [Sp. T.
I860].)
Motion to renew prevents hearing of appeal.] A motion for leave
to renew will prevemt the hearing of an appeal from the order denying the
original motion. (Peel v. Elliott, 16 How. Prac. 483 [Gten. T. 1858] ; Harrison
T. Neher, 9 Hun, 127 [1876].)
ENTITLING MOTION PAPERS — Where objection is to be taken.] Objec-
tion to the entitling of motion papers cannot for the first time be taken on
appeal from, the order. (Watts v. Nichols, 19 Wkly. Dig. 165 [Sup. Ct.
il884].)
Failure to entitle a motion for the appointment of a trustee in a
separate proceeding.] Entitling a motion for the appointment of a trustee
in place of a deceased trustee, in an action relating to the disposition of the
trust fund instead of in a separate proceeding, does not deprive the court of
jurisdiction. (Wetmore v. Wetmore, 44 App. Div. 221.)
Entitling one order in several actions.] Drawing orders entitled in
several actions is exceedingly objectionable where it appears that an order
for the examination of witnesses de hene esse was entitled in six actions and
directed the examination of a witness simultaneously in all six suits, which
order, if it had been construed so as to direct a consolidated examination,
would have been reversed, but as it appeared that six separate orders had
284 CouKTS OP Kecoed. [Rule 37
been made, and an order denying a motion to vacate had directed that the
depositions be taken separately upon appeal, siKh order should be afSrmed.
(August V. Fourth Nat. Bk., 31 St. Rep. 85 [Sup. Ct. 1890].)
COSTS.] All proceedings on the part of a party required to pay costs by
an order, except to review or vacate the order, are stayed without further
direction of the court, until the payment thereof. (Code Civil Procedure,
§ 779.)
Withdrawal of motion — costs — when payable.] Although it is set-
tled that a notice of motion cannot be withdrawn or countermanded without
payment of costs, yet where a motion embraces two distinct matters, as for
leave to add parties defendant, and for an injunction and receiver, the first
part may be withdrawn, leaving the motion as to the second part still pending,
without payment of costs of the motion. (Walkinshaw v. Perzel, 7 Rob.
606 [Chamb. 1867].)
Motion costs not allowed where, before the hearing, the ground of the
motion is obviated.] A motion was made to set aside an order for the exami-
nation of a party before trial on the ground that a copy of the order and
moving /papers had not heen served on the attorney for the party, and before
the hearing of a motion such papers were served and no further ground was
left for the motion. Held, that the motion costs were improperly imposed on
the moving party. (New York, Lake Erie, etc.. Railroad Co. v. Ca-rhart, 3-6
Hud, 288 [1885].)
Where costs are inserted in an order entered under a decision not giv-
ing them — judge cannot then give costs.] An order entered upon a filed
decision without settlement or allowance by the judge, contained an award of
costs which was not authorized by the decision. Held, that such allowance of
costs was unauthorized and that upon a motion to correct the order in this
respect, the judge had no jurisdiction to exercise his original discretion and
award costs, but sliould have corrected the order to conform to the decision.
(Siegrist v. HoUoway, 7 Civ. Proc. R. 58 [Sup. Ct. 1885].)
The party who is to pay costs must seek and tender them to tie
other.] (Hoffman v. Treadwell, 5 Paige, 82 [1834]; Pugsley v. Van Allen,
8 Johns. 352 [1811]; Hoadley v. Cuyler, 10 Wend. 593 [1833]; Delehanty v.
Hoffman, 1 How. Prac. 7 [Sp. T. 1844].)
Nonpayment of, a stay.] Under the Code all proceedings on the part
of the party required to pay are stayed till payment, ((^de of Civil Pro-
cedure, § 779.)
On failure to pay costs.] The proceedings are absolutely stayed by
a failure to pay costs. (Tliaull v. Frost, 1 Abb. N. C. 298 [Chamb. 1876] ;
Hazard v. Wilson, 3 id. 50 [Sp. T. 1877] ; Lyons v. Murat, 54 How. Pr. 23
[Sp. T. 1877]. See Code of Civil Procedure, § 3247.)
A receiver may enforce by execution a judgment between other parties
which requires money to be paid to him.] (Geery v. Gleery, 63 N. Y. 252
[1875].)
When stay does not deprive court of jurisdiction. (Wessels v.
Boettcher, 142 N. Y. 212.)
Plaintiff must exhaust other remedies first. (Halsted v. Halsted, 21
App. IMv. 466.)
Hule 37] General Rules of Peactice. 285
When execution for costs may be issued. (BeriLheimer v. Hartmayer,
34 Misc. Eep. 346.)
After dismissal, costs must be paid before new action can be com-
menced. (Ingrosso v. B. & O. R. Co., 105 App. Div. 404.)
Failure to pay costs of previous motion, not a bar to motion* to com-
pel plaintiff to accept service of delayed amended answer. (Tracy v. Lichten-
stadter, 113 App. Div. 754.)
As to payment of costs of subsequent action when costs of first action
remain unpaid, see Wilner v. Ind. Order Abawos Israel, 122 App. Div. 613;
Obermeyer & Liebman v. Adisky, 123 id. 2^72 ; Hirschfeld v. Hassett, 59 Misc.
Rep. 154; Roth v. Wallach, Id. 515.
CONDITION — When and how complied with.] Where an order is granted
on condition, and no particular time is mentioned in the osder, it must be
performed within twenty -four hours. (Kellogg v. Johnson, 7 Cow. 420 [1827].)
Party must take notice of, and comply with order.] Where a favor
is granted to a party, on condition, he must, at his peril, take notice of the
■order, and comply with its terms. ( Willink v. Renwick, 22 Wend. 608 [1840.] )
Motion granted conditionally — failure to perform condition, proper
practice on.] Where a motion is granted conditionally upon the failure of
the opposing party to do a certain act, if the act is not performed, the proper
practice is for the moving party to show, by affidavit, such failure to perform,
and thereupon to apply for an ex parte order granting the motion absolutely.
(Stewart v. Berge, 4 Daly, 477 [Gen. T. 1873].)
What condition may be imposed.] Upon vacating an execution against
the person for irregularities therein, the court may compel the defendant to
stipulate that he will not sue for the arrest or for false imprisonment under
the execution. (Walker v. Isaacs, 36 Hun, 233 [1885].)
NOTICE OF ARGUMENT — Proper after settlement of a case.] Immedi-
ately after the case or exceptions are settled the respondent may give notice
of argument. (Anderson v. Dickie, 26 How. Prac. 199 [N. Y. Supr. Ct. Gen. T.
1863]; Donahue V Hicks, 21 id 438 [Gen T. 1861].)
REARGUMENT — Application for reargument must be made before the
same justice.] When, upon a motion to reargue a motion, if the judge who
originally heard and denied the same does not preside at the Special Term
for the hearing of nonenumerated motions, that being the proper place to make
such motion, it should be referred to him or postponed until a Special Term is
held by him; it should not be denied or dismissed. (Averell v. Barber, 44 St.
Rep. 542 [Sup. Ct. 1892].)
Motion for rehearing on the ground of misapprehension or inadver-
tence before original judge.] 'WTiere a right has been denied to a party under
a misapprehension or from inadvertence, a mwtion for a rehearing before the
same judge may be made, and may be granted upon the same papers on which
the first motion was made. (Matter of Crane, 81 Hun, 96 [1894].)
Ordered when the highest court has decided otherwise.] A reargument
may be ordered where some obvious mistake has been committed by the court,
or where, pending the appeal, the highest appellate court has decided the ques-
tion otherwise. (See Taylor v. Grant, 36 N. Y. Supr. Ct. Rep. 259 [Gen. T.
286 ClouETS OP Eecoed. [Rule 37
}
1873] ; Ckjleman v. Livingston, Id. 231 [Gen. T. 1873] ; Butterfield v. Eadde,
40 id. 169 [Gten. T. 18/i4] ; Produce Bank v. Morton, 42 id. 124 [Gen. T. 1877].)
If important point overlooked by the court.] A reargument may be
granted if an important point waa not considered by the court. (Guidet v.
Mayor, 37 N. Y. Supr. Ct. Rep. 124 [Gen. T. 1874] ; Weston v. Ketchum, 39
id. 552 [Gen. T. 1875].)
Overlooked by counsel. (Krom v. Levy, 6 T. & C. [Sup. Ct.] 253
[1875]; Guidet v. Mayor, 37 N. Y. Supr. Ct. Rep. 124 [Gen. T. 1874].)
Motion for, not stating the facts overlooked.] When the motion
papers for a reargument do not specifically state what facts have been over-
looked upon the former hearing, the motion should not be granted. (Van
Wagen«r v. Royce, 21 N. Y. Supp. 191 [Sup. Ct. 1-892].)
Reargument denied, where the question can be settled on a new trial]
When a new trial has been ordered by a judgment of the Second Division of
the Court of Appeals, a motion for a reargument should not be granted by the
Court of Appeals on the ground that a question has been overlooked if, upon
the new trial, that question might be settled. (People v. Ballard, 136 N. Y.
639 [1892].)
Reargument, heard upon the same case.] Reargument at General
Term cannot be heard upon a new and amended case. (Wright v. Terry, 24
Hun, 228 [1881].)
Reargument denied, in case of leave to go to Court of Appeals.] A
reargument will not be -granted at the General Term of the Court of Common
Pleas after leave has been granted to go to the Court of Appeals and the judg-
ment has been affirmed by that court. (Jung v. Keuffel, 12 Misc. Rep. 89
[1895].)
Reargument, effect of a decision of the Court of Appeals.] It is not
only the duty of the com-t to do justice but, also, to satisfy the parties that
justice has been done. Where the evidence as to the point in issue is identical
on both trials the decision of the Court of Appeals on a former appeal upon
that point is obligatory upon the court below. (Myers v. Dean, 10 Misc. Rep.
402 [1894].)
Reargument when application is too late.] After remittitur filed in
the court below and judgment, entered thereon and paid, the General Term of
the Court of Common Pleas has no jurisdiction to entertain a motion for rear-
gument of an appeal from the City Court of New York. (Bradley v. Laly, 10
Misc. Rep. 366 [1894].)
Order denying reargument at General Term — not reviewable in Court
of Appeals.] An order made at General Term denying an application for a
reargument in that court is not reviewable in the Court of Appeals. (Fleiseh-
mann v. Stern, 90 N. Y. 110 [1882].)
— —When a reargument granted. (Banks v. Carter, 7 Daly, 417 [Gen. T.
1878].)
That remedy exists by appeal — is ground for refusing a reargument.]
The fact that a remedy exists by appeal is a good reason for refusing a rear-
gument. (Giles V. Austin, 34 N. Y. Supr. Ct. Rep. 540 [Gen. T. 1872].)
Eule 37] Genekal Kules of Peactice. 287
Motion, not appeal, the proper mode to enforce stipulations.] A mo-
tion, and not an appeal, is the proper mode of obtaining a rehearing in regard
to matters of agreement between the court and counsel. ( Herbert v. Smith, 6
Lans. 495 [Gen. T. 1872].)
MOTIONS AND ORDERS — What action wiU not preclude a motion to
reopen a default.] The right to reargue a motion to open a default should
be determined by the court, and the plaintiff may still be entitled to the right,
although he has consented to resettle the original order, received costs therein
allowed, and excepted to the sufficiency of the sureties on an undertaking.
(Lanahan v. Drew, 44 St. Rep. 769 [N. Y. City Ct. 1892].)
Order denying reargument, not appealable.] The General Term of the
Supreme Court cannot entertain an appeal from an order denying a motion for
the reargument of a motion. The court which hears the original motion can
alone judge whether it has failed to consider any of the points raised upon a
motion and its determination upon this point is final. (Matter of Grout, 83
Hun, 25 [1894].)
Jurisdiction of judge out of court to make order, not restricted to cases
where matter may be heard out of court. (Matter of Petition of Argus Co.,
138 N. Y. 535.)
Granting application for order to show cause is discretionary. ( Andro-
veth V. Bowne, 151 How. Prac. 75.)
RES AD JUDICATA — Not applicable to special motions.] The principle
of res adjudioata does not apply to orders made on special motions. (Easton
V. Pickersgill, 8 Wkly. Dig. 37 [Ct. of Appeals, 1878] ; S. C, 75 N. Y. 599.
See Matter of Livingston, 34 id. 555 [1866].)
A person allowed a hearing on a motion is concluded by the decision.]
Where the court allows any person to appear and be heard upon the argument
of a motion, in the decision of which he is interested, such hearing is as
effectual as though such person had received notice of the motioni, and had
been named as a formal party to it; and he is fully concluded by the disposi-
tion which the court may make of such -motion. (Jay v. De Groot, 2 Hun,
205 [1874].)
JURISDICTION — Question of jurisdiction, not to be decided on a motion
to dismiss the complaint.] The question of jurisdiction should not be tested
on a motion to dismiss the summons and complaint; it should be presented by
answer or demurrer. (Johnson v. Adams Tobacco Co., 14 Him, 89 [1878].)
SERVICE BY MAIL — On what hour of the last day to be made.] A
service by mail of notice of a.pp©arance and demurrer must be made by a
deposit in the mail at such hour on the last day that it will go on that day, or
by the first mail on the next day. (Green v. Warren, 14 Hun, 434 [1878].)
MOTION TO VACATE — A judge granting an order for substituted ser-
vice may entertain a motion to vacate it.] A judge who grants an order for
substituted service may entertain a motion to vacate or modify it. ( McCarthy
V. McCarthy, 13 Hun, 579 [1878].)
Ex parte order vacated on motion at Special Term.] The court at
Special Term on notice, has authority to vacate an ex parte order of a judge. ,
(McMahon v. Brooklyn City Railroad Co., 20 Wkly. Dig. 404 [Sup. Ct. 1884].)
288 OouETS OF Kecoed. [Eule 37
Affidavit must show present condition of action.] Unless the affidavit
on a motion to vacate an attachment states the present condition of the case,
whether at issue, etc., the motion to vacate should be denied. (Cole v. Smith,
84 App. Div. 600 [1903].)
Denied when affidavit insufficient.] Affidavit must show present con-
dition of a,ction. (Col© v. Smith, 84 App. Div. 500 [1903].)
MODIFICATION — An order can be modified only on motion.] The court
cannot modify an order of its own motion without notice to the parties inter-
ested. (Simmons v. Simmons, 32 Hun, 551 [1884].)
After modification.] The failure of a judge who granted a stay to
resign his order after a modification by another judge so as to permit a motion
to be made, even if such .resigning be necessary, is cured by a subsequent con-
sent that the motion be heard by the judge who granted the modification.
(Whitman v. John-son, 10 Misc. Rep. 730 [1894].)
ENTRY OF OEDEK, BY WHOM — Eight of unsuccessful party to enter
order.] If a party who is entitled to enter an order fails to do so within
twenty-four hours after the decision has been made, any party interested may
have it drawn up and entered. (Matter of Rhinebeck & Oonn. R. R. Co., 8
Hun, 34 [1876].)
Omission to enter order — effect of — who may enter it.] An omis-
sion to enter an order does not give the right to agitate the same question
by a fresh motion. The unsuccessful party can enter the order when he de-
sires to appeal, if the prevailing party omits to do so. (Peet v. Cowenhoven,
14 Abb. Pr. 56 [Chamb. 1&61] ; Hall v. Emmons, 2 Sweeny, 396 [Gen. T.
1870].)
See notes under Rule 3.
REVIEW — Review of decision of one Special Term by another — im-
proper.] A decision of one justice cannot be reviewed at a Special Term, held
by another. (Trunstall v. Winton, 31 Him, 222 [1883].)
Relief from terms imposed must be sought from the justice imposing
them.] An appeal cannot be taken from one Special Term to another; a
party must apply to the judge who made the order, or to the General Term
when he wishes relief from terms imposed as a condition of a favor granted by
a Special Term. (Finelite v. Finelite, 41 St. Rep. 158 [Sup. Ct. 1891].)
APPEAL — When it does not prejudice a motion.] The fact that a party
appeate from a judgment does not prejudice a pending motion to set it aside.
(Clumpha v. Whiting, 10 Abb. 418 [Sp. T. 1860] ; Belmont v. Erie R. R. Co.,
52 Barb. 637 [Sp T. 1869]. See Peel v. Elliott, 16 How. Prac. 483 [Gen. T.
1858]; Harrison v. Neher, 9 Hun, 127 [1876].)
DEFAULT ON MOTION — Laches in opening.] Laches in delaying for
nine months to move to open default on a motion to dismiss, held, a sufficient
ground for denying it, though during the intervening time other proceedings
towards a similar end were prosecuted. (Matter of Peekamose Fishing Club,
8 App. Div. 617 [1896].)
Costs not granted when not demanded in notice.] If the notice of
motion, which is granted on the default of the parties served, does not state
that costs will be asked for, none can be granted. (Smith v. Fleischman, 17
App. Div. 532 11897].)
DIVORCE.] See notes under Rule 72.
Rule 38] Genekal Rules of Peactice. 289
KUIE 38.
Enumeiated Motions — Non-enumerated Motions, What Are — Contested Mo-
tions, When Not Heard at Trial Term.
Enumerated motioiis are motions arising on special verdict,
issues of law, cases, exceptions, appeals from judgments sustain-
ing or overruling demurrers, appeals from judgment or order
granting or refusing a new trial in an inferior court, appeals by
virtue of sections 1346 and 134-9 of the Code, agreed cases sub-
mitted under section 1279 of the Code, and appeals from final
orders and decrees of Surrogates' Courts, and matters provided
for by sections 2085-2099 and 2138 of the Code.
Non-enumerated motions include all other questions submitted
to the court, and shall be heard at Special Term except when
otherwise directed by law.
Contested motions shall not be noticed or brought to a hearing
at any Special Term held at the same time and place Avith a Trial
Term, except in actions upon the calendar for trial at such term,
and in which the hearing of the motion is necessary to the dis-
posal of the cause, unless otherwise ordered by the justice holding
the court; and except, also, that in counties in which no Special
Term distinct from a Trial Term is appointed to be held, motions
in actions triable in any such county may be noticed and brought
on at the time of holding the Trial and Special Term in the
covmty in which such actions are triable.
Rule 40 of 1858, amended. Rule 47 of 1871, amended. Rule 47 of 1874,
amended. Rule 38 of 1877, amended. Rule 38 of 1880. Rule 38 of 1884.
Rule 38 of 1888, amended. Rule 38 of 1896.
See notes to Rule 37.
CODE OF CIVIL PROCEDURE
§ 768. Definition of a motion.
§ 769. Where motions in the Supreme Court are to be heard.
§ 770. Motions in New York city.
§ 771. Transfer of a motion from one judge to another.
§§ 772, 773. What judges may malce orders out of court.
§ 776. Second application for an order.
§ 778. Penalty for a violation of the last section.
19
290 Courts of Eecokd. [Rule 38
§ 779. Costs of motion — how collected.
See sections of the Code under Rule 37.
ENUMERATED MOTIONS.] The following have been held to be enume-
rated miotions:
An appeal from an order appointing an administrator. (Brockway v. Jew-
ett, 16 Barb. 590-593 [Gten. T. 1853].)
An appeal from, an order sustaining or overruling a demurrer. (Reynolds v.
Freeman, 4 Sandf. 702 [Sp. T. 1852].)
A motion for a new trial on a case or bill of exceptions. (Ellsworth v.
Gooding, 8 How. Pjac. 1 [Sp. T. 1852] ; Van Sohaick v. Winne, Id. 5-8 [Sp. T.
1853].)
A 'motion for a new trial on newly-discovered testimony. (Chandler v.
Trayard, 2 Cai. 94 [1804]; S. C, Col. & C. Cases, 358.)
A motion to set aside the report of a referee on the merits. (Remsen v.
Isaacs, 1 Cai. 22 [1803] ; S. C, Col. & C. Cases, 158.)
A motion to confirm referee's report on reference, under interlocutory decree.
(Empire B. & M. L. Asso. v. Stevens, 8 Hun, 515 [1876].)
An appeal from an order of the County Court granting a new trial on the
judge's minutes. (Harper v. Allyn 3 Abb. N. C. 186 [Gen. T. 1867].)
Appeal from an order of the New York Court of Common Pleas, denying
motion for new trial, taken independently from the judgment. (Kenney v.
Sumner, 12 Misc. Rep. 86 [1895].)
After an interlocutory judgment, adjudicating certain rights and refer-
ring the cause to the referee to state accounts, he made a report, and before
the filing of exceptions plaintiff gave notice of motion on the reports, accounts
filed, evidence, interlocutory judgment, pleadings, etc., for confirmation of the
report and for final judgment. Held, that it was an enumerated motion, under
General Rules of Practice 38, and the pap«rs on which it was made should have
been served with the notice under Rule 40, and the motion noticed for the
first day of the term. (Rogers v. Pearsall, 21 App. Div. 389 [1897]. See, also,
Rogers v. Pearsall, 47 N. Y. Supp. 551 [1897].)
NON-ENUMERATED MOTIONS.] The following have been held to be
non-enumerated motions :
A motion for a reference in an action. (Conway v. Hitchins, 9 Barb. 378-
386 [Gen. T. 1850].)
A motion to set aside a report of referees on the ground of irregularity, but
if grounded on merits also, it is an enumerated motion. (Remsen v. Isaacs,
1 Cai. 22 [1803] ; S. C, Col. & C. Cases, 158.)
A motion to set aside a verdict for irregular conduct of jury. (Smith v.
Cheetham, 2 Cai. 381 [1805]; S. C, Col. & C. Oases, 425.)
A motion to bring on trial by record. (M'Kenzie v. Wilson, 2 Cai. 385
[1805]; S. C, Col. & C. Cases, 428.)
A motion for judgment on the pleadings on the ground that an answer raises
no issue. (People v. Northern R. R. Co., 42 N. Y. 217 [1870].)
Distinction between final order and order with leave to plead over. (Hoff-
man V. Barry, 2 Hun, 52 [1874].)
Eule 39] General Eules of Peactice. 291
Motion for judgment for frivolousness is the trial of an action.] A
motion for judgment on account of tlie frivolousness of tlie demurrer [§ 247,
Code of Civil Procedure], is the trial of an issue of law; and a determination
upon it is a judgment. (Roberts v. Morrison, 7 How. Prac. 396 [Sp. T.
1S5.3].)
CONTESTED MOTIONS — Heard only at regular Special Terms, unless
otherwise ordered.] Contested motions will be entertained and heard only
at the regular Special Term of the court, unless differently ordered by the
judge holding such term. (Mayer v. Apfel, 2 Sweeny, 729 [Gen. T. 1870].)
A contested motion cannot be heard at a Special Term adjourned by the
justice holding it to his chambers, except by consent. (Matter of Wadley,
29 Hun, 12 [1883].)
When a hearing is in the discretion of the court.] Entertaining a
motion for restitution and granting an order therefor at a Special Term, held
in connection with the Circuit, held, to be in the discretion of tlie court.
(Skinner v. Hannan, 81 Hun, 378 [1894].)
When properly noticed for a Trial Term.] Where, in a proceeding for
the substitution of an attorney in two pending actions, the judge at Special
Term refers the matter to a referee to take proof and report what sum is due
the attorney sought to be removed and directs the application to stand over
until the referee makes his report, it is not improper to notice the motion for
the confirmation of the report for a Trial Term at which the same judge who
held the Special Term is then sitting. (Hinman v. Devlin, 40 App. Div. 234
[1899].)
STJIE 39.
Appellate Division Calendar — Notes of Issue, When to be filed — Issue, Date
of — Separate Calendar for Non-enumerated Motions — Preferred Cases —
Rules in Each Department — Judgment by Default — Twice Passed, Ap-
peal Dismissed.
At the first term of the Appellate Division of the Supreme
Coiirt in each department, and at such other times as the court
shall from time to time direct, the clerk shall make up a calendar
which shall consist of cases pending and undisposed of, as follows :
Notes of issue for the Appellate Division shall be filed eight
days before the commencement of the court at which the cause
may be noticed. The clerk shall prepare a calendar for the
Appellate Division, and, except in the first department, cause the
same to be printed for each of the justices holding the court.
Appeals shall be placed on the calendar, according to the date of
the service of the notice of appeal ; and 'all subsequent enumerated
appeals in the same cause shall be put on the calendar as of the
date of the first appeal ; and other cases as of the time when the
question to be reviewed arose. Appeals in non-enumerated mo-
392 CouETS OF Eecoed. [Eule 39
tions shall also be plaiced upon a separate calendar. Cases entitled
to preference shall be placed separately on the calendar.
The Appellate Division of each department shall adopt rules
regulating the hearing of causes and of calendar practice in such
department not inconsistent with the Code of Civil Procedure.
Judgment of reversal by default vidll not be allowed. Where
the cause is called in its order on the calendar, if the appellant
fails to appear and furnish the courts with the papers required,
and argue or submit his cause, judgment of affirmance by default
will be ordered on motion of the respondent. If the appellant
only appears he may either argue or submit the case. If neither
party appears, the case will be passed and placed at the foot of
the calendar. When any cause shall be twice passed, tbe clerk
shall enter an order of course dismissing the appeal or the pro-
ceedings, or denying the motion for a new trial — but the court
may, upon motion, vacate the order and restore the cause.
Rule 41 of 185», amended. Eule 48 of 1871, amended. Rule 48 of 1874.
Hute 39 of 1877, amended. Rule 39 of 1880. Rule 39 of 18«4. Rule 39
of 1888, amended. Rule 39 of 1896.
CODE OF CIVIL PROCEDURE.
§§ 789-793. Causes entitled to preference — when an order is necessary.
§ 977. Note of issue, contents and filing of.
LACHES — Of attorney — delay in sending note of issue to clerk.] If an
attorney, without sviflScient excuse, waits until the last day but one for fil-
ing notices of argument or issue before sending them to the clerk to file for
the calendar, and circumstances then transpire which prevent his sending
notice in season for the calendar, he will not be allowed to put it on, what-
ever his excuse may be, after that time. (Wilkin v. Pearse, 4 How. Prac.
26 [Ct. of Appeals, 1849].)
Neglect to file note of issue — application to supply must be on first
day of term.] The omission to file a note of issue may be sxipplied by per-
mission of the court, under section 174 of the Code of Procedure, but the
application must be made on the first day of the term. (Clinton v. Myers,
43 How. Prac. 95 [Sp. T. 1872].)
DEFAULT — Case reinstated — second default — practice on.] After a
default has been taken by respondent, and it is opened on condition that the
case be restored to the calendar and argued that term, if the appellant neg-
lects to comply with the condition, it is proper for the respondent to have
the cause restored to the calendar; and a second default taken by him when
Rule 39] General Rules of Peactice. 293
the cause is regularly called is not irregular. (Luft v. Graham, 13 Abb. Prac.
[N. S.] 175 [N. Y. Com. PI. Sp. T. 1871].)
CALENDAR — Control of the court over its calendar.] Subject to the
statutory provisions as to preferences, the court has entire control of its
calendar. (Maretzek v. Cauldwell, 4 Hob. 660 [Sp. T. 1865] ; Martin v. Hicks,
6 Hun, 74 [1875].)
Motion to strike from — contents of papers on motion.] The affidavit,
on which the motion is made must show that the party moving has served
a notice of argument unless such notice has been served by the adverse party.
(Herkimer Co. Bank v. Devereux, 5 Hill, 9 [1843].)
Appeal from an order putting a cause on the calendar.] An order
placing a cause on the calendar for a certain day is not appealable to the
General Term. (Schermerhorn v. Carter, 8 N. Y. Wkly. Dig. 383 [1879].)
Case in first department — reversed on appeal — its place on the day
calendar.] A case upon the general calendar in the first department, which
has been reversed at General Term, may be placed on the day calendar at
the circuit on two days' notice, and no new notice of trial is necessary when
a new calendar is made up. (Watson v. Phyfe, 44 Hun, 562 [1887].)
An amendment of a pleading necessitates a new notice of trial.] In
the first department an amendment of the pleadings necessitates the giving
and filing of a new notice of trial and new note of issue, and such require-
ment cannot be avoided by a stipulation that the amendnnent shall not preju-
dice the position of the case on the calendar, although it is assented to by
the trial justice. (Keilty v. Traynor, 25 Misc. Rep. 351 [1898]; Zeigler v.
Irenkman, 31 App. Div. 305; Leonard v. Faber, Id. 137; Roberts v. Schaf,
76 id. 433.)
Note of issue filed before an answer, returned, has been reserved.] A
note of issue filed before an unverified answer which has been returned is
reserved in a verified form, is not effective to place the case on the calendar.
(Pritchard v. Nederland Life Ins. Co., 38 App. Div. 109 [1899].)
Service of an amended complaint.] The service of an amended com-
plaint takes the case from the general and day calendars as the original
issues are destroyed; and the case should be stricken therefrom on motion.
(Jfeville V. Butler, 26 Misc. Rep. 203 [1899].)
— —Expense of printing calendars. (See Code of Civil Procedure, § 20.)
PREFERRED CAUSES — Action by an administratrix for negligent kill-
ing.] An action to recover damages for negligence which resulted in the
death of plaintifl^'s intestate, brought by an administratrix, may be put on
the trial calendar as a preferred case under section 791 of the Code of Civil
Procedure. (Hayes v. Consolidated Gas Co., 60 St. Rep. 480 [Ct. of App.
1894].)
When party entitled to a preference under Code of Civil Procedure,
section 791, subd. 5.] A party is only entitled to a preference under Code
of Civil Procedure (§ 791, subd. 5) where in one of the capacities mentioned
he is the sole plaintiff or the sole defendant. The right to a preference does
not exist where another person is joined with the plaintiff as executor,
although that person may be the executor suing in his individual capacity.
294- OouETS OF Eecoed. [Rule 39
(Haux V. Dry Dock Savings Institution, 150 N. Y. 581 [1896]. See, also,
Ritchie V. Seaboard National Banit, 12 Misc. Rep. 146 [N. Y. Com. PI. 1895].)
When party not entitled to preference tinder Code of Civil Procedure,
section 791, subd. 4.] Where one of the several plaintiils in an action dies
during its pendency and a personal representative is substituted, he is not
entitled to have the case placed upon the calendar of the Court of Appeals as
a preferred cause under the provisions of Code of Civil Procedure (§ 791,
snbd. 4), as a party is not entitled to a preference under that provision unless
he is a sole plaintiff or sole defendant in the action. (Colton v. N. Y. El.
E. R. Co., 151 N. Y. 266 [1896].)
Eight is mutual.] Right to preference where order of an-est has been
granted inures to both parties. (Knox v. Dubroff, 17 App. Div. 290 [1897].)
A cause cannot be made a preferred one by stipulation.] Attorneys
cannot, by consent, give a cause a preference to which they are not entitled
by law, and where tlie last pleadings have not been served, the cause will
not be placed on the trial calendar in the first judicial department. (Leonard
V. Faber, 31 App. Div. 137 [1898].)
What is not a strict compliance with Code of Civil Procedure, section
793, to entitle to a preference.] A motion for a preference on the calendar,
made on a statutory ground, that the sole defendant is the committee of a
lunatic, where the notice of trial has stated a claim for preference upon that
ground, being not addressed to the discretion of the court but made as a
matter of right, denied as not being a strict compliance with the require-
ments of Code of Civil Procediu-e (§ 793). (Hardy v. Knickerbocker Trust
Co., 23 Misc. Rep. 503 [Sup. Ct. Sp. T. 1898].)
The preference is available, though the motion to grant it is opposed.]
The preference accorded by virtue of Code of Civil Procedure (§ 791, subd. 5)
to the action in which an administratrix is sole plaintiff or sole defendant
is not personal to the administratrix and may be accorded although she
oppose the motion therefor. (Schwartz v. Wolf rath, 24 Misc. Rep. 406 [N. Y.
City Ct. 1898].)
Orders in preferred cases.] Where the right to a preference depends
upon facts which do not appear in the pleadings or other papers upon which
the cause is to be tried or heard, the party desiring a preference must pro-
cure an order therefor from the court or a judge thereof upon notice to the
adverse party, which must be served with or before the notice of trial or
argument. (Code of Civil Procedure, § 793.)
Order to put a cause on the calendar for preferred causes — when nec-
essary.] In those cases in which the pleadings do not show the right to a
preference, an order giving the preference should be obtained and served
before or with the notice of trial. (Robertson v. Schellhaas, 62 How. Prac.
489 [Sup. Ct. Sp. T. 1881]; City National Bank of Dallas v. National Park
Bank, Id. 495 [Sup. Ct. Sp. T. 1882].)
Special order to put cause on preferred calendar.] The court may, by
special order, advance a cause as preferred and place it upon the calendar for
a particular day. (The City of New York v. Shack, 81 App. Div. 575 [1903].)
Rule 39] Geneeal Rules of Practice. 295
Issues in a special proceeding, how preferred.] To entitle issues in a
special proceeding, which are to be tried by a jury, to be placed upon the
special calendar in Part 2 of the New York Trial Term, under Rule 3, it is
not necessary to claim a preference in the notice of trial or to serve with
such notice a notice of motion for a preference. (People ex rel. Tyng v.
Feitner, 39 App. Div. 532 [1899].)
A cause need not be placed upon the calendar by the filing of a note
of issue before a notice of trial and a notice of motion for ^. preference can
be served, although the motion cannot be granted until the cause is on the
calendar. (Warden v. Post Steamboat Co., 39 App. Uiv. 543 [1899].)
Privilege not regained by amending the complaint.] A plaintiff who
has lost his right to a preference by failing to demand it when he first
noticed the case for trial cannot, by amending his complaint, regain the lost
privilege. (Ziegler v. Trenkman, 26 Misc. Rep. 432 [1899].)
Order in which civil actions are entitled to preference among them-
selves in the trial or hearing thereof. (See section 791, Code of Civil Pro-
cedure. )
Short causes — court not prohibited from establishing a calendar for.]
The provisions of the Code as to preferences are not exclusive and do not
prohibit courts from establishing a calendar for short causes. (Weiss v.
Morrell, 7 Misc. Rep. 539 [N. Y. Com. PI. 1894].)
Short causes — court to determine the time a trial will occupy.] It is
Avithiu the discretionary power of the court at Special Terra, on a motion to
put a cause on the special calendar for short causes, to determine whether
there is reason to believe that the trial will not occupy more than one hour.
(Guerineau v. Weil, 8 Misc. Rep. 94 [N. Y. Supr. Ct. 1894].)
Equity case — not triable at Circuit.] The issues in an equity case
were not triable at Circuit in 1893, unless so directed, in the absence of con-
sent (Frothingham v. Stillwell, 35 App. Div. 536 [1898].)
Consent to a trial at Circuit — from what not implied.] Consent to
the trial of issues in an equity case at Circuit cannot be implied from the
fact that the party noticed it for trial at such court and consented to its
being placed on the calendar, where he moved before trial to strike it from
the calendar on the ground that the court had no jurisdiction to try the
issues. (Frothingham v. Stillwell, 35 App. Div. 536 [1898].)
Police commissioner of New York entitled to preference.] The police
commissioner of the city of New York, sued as such, held entitled to pref-
erence on calendar. (National Athletic Club v. Bingham, 63 Misc. Rep. 62.)
Notice of application to be served with notice of trial.] Notice of
application for preference under the Code must be served with the notice
of trial. (Cohen v. Thomas, 63 Misc. Rep. 62.)
Facts justifying preference to be set forth in moving papers.] Appli-
cation for preference rmder the provisions of section 791, Code Civil Proced-
ure, is in discretion of court, hence the facts justifying preference are to be
set forth in the moving papers. (Peck v. Maher, 116 N. Y. Supp. 574. See,
also, Wihier v. Mink Restaurant Co., 61 Misc. Rep. 73.)
What determines date of issue.] Time when last pleading "is served
determines date of issue. (Van Norden Trust Co. v. Murphy, 125 App. Div.
296 Courts of Kecobd. [Rule 40
When notice may be served.] Notice of application for preference may
be served at any time within which cause could be noticed for trial. (Thomp-
son V. Post & McCord, 125 App. Div. 397.)
Action for causing death of infant not entitled to preference.] In an
action for damages by causing the death of an infant, held, not to entitle
party to preference under section 791, Code of Civil Procedure. (Gehrt v.
Deane, 109 N. Y. Supp. 679. See, also, Ortner v. N. Y. City Ry. Co., 54 Misc.
Rep. 83.)
Extreme age of plaintiff.] Extreme age of plaintiff and the likelihood
that he might not live until cause reached, held sufficient to entitle to
preference. (Hickman v. Schimper & Co., 121 App. Div. 257.)
Failure to make motion operates as a waiver.] Failure to make
motion for preference at the commencement of term for which notice of trial
served held to operate as a waiver of the right. (Myerson v. Levy, 117
App. Div. 475; Gegan v. Union Trust Co., 120 id. 382.)
Action for a separation held not entitled to preference. (Seligman v.
Seligman, 52 Misc. Rep. 9.)
THIRD DEPARTMENT RULES — Rule 15 will be strictly enforced.] The
court has full power to protect every party against a wilful disobedience of
this rule; and upon a failure to serve a brief by appellant within the time
specified, respondent's motion to put the case over the term was granted.
(Matter of Haase, 101 App. Div. 336.)
RULE 40.
Enumerated Motions — Papers to be Furnished On — Neglect to Furnish
Papers — Cause May be Struck from Calendar — Papers, by Whom Fur-
nished — Points to Contain a Statement of Facts.
The papers to be furnished on enumerated motions at Special
Term shall be a copy of the pleadings, when the question arises on
the pleadings, or any part thereof, a copy of the special verdict,
return or other papers on which the question arises. The party
whose duty it is to furnish the papers shall serve a copy on the
opposite party, except upon the trial of issues of law, at least five
days before the time for which the matter may be noticed for
argument. If the party whose duty it is to furnish the papers
shall neglect to do so, the opposite party shall be entitled to move,
on affidavit and on four days' notice of motion, that the cause be
struck from the calendar (whichever party may have noticed it
for argument), and that judgment be rendered in his favor.
The papers shall be furnished by the plaintiff when the question
arises on special verdict, and by the party demurring on the trial
of issues of law, and in all other cases by the party making the
Euie 41] General Edles of Practice. 297
motion. Each party shall prefix to his points a concise statement
of the facts of the case, with reference to the folios; and if such
statement is not furnished, no discussion of the facts by the party
omitting such statement will be permitted.
Rule 42 of 1858, amended. Rule 49 of 1871, amended. Rule 49 of 1874.
Rule 40 of 1877, amended. Rule 40 of 1880. Rule 40 of 1884. Rule 40
of 1888, amended. Rule 40 of 1896, amended.
CODE OF CIVIL PROCEDURE.
§ 1353. Upon what papers an appeal should be heard.
SERVICE OF PAPERS — Neglect — notice must be given of a motion to
strike from the calendar.] Where a party intends to object to the argument
of a case, demurrer or special verdict because papers have not been served,
he must give notice of an application to strike the cause from the calendar,
as the objection will not be heard when the cause is called for argument.
(Delamater v. Smith, 16 Johns. 2 [1819]; Townsend v. Wheeler, 4 Wend. 196
[1830]; 10 id. 537, note.)
Failure to serve papers.] Plaintiff noticed an enumerated motion for
the second day of the term, and also failed to serve a copy of the papers on
which the motion was founded. Defendant, however, obtained the stenog-
rapher's minutes at his own e.xpense. Held, that the motion was fatally
irregular and should have been stricken from the calendar under General
Rule 40. (Rogers v. Pearsall, 47 N. Y. Supp. 551 [1897].)
On motion to confirm referee's report, the supporting papers should be
served with the notice. (Rogers v. Pearsall, 21 App. Div. 389 [1897].)
DEMURRER — Papers to be furnished by a party demurring, to the court
only.] The party demui-ring is not required to serve on the opposite party
any copy of the pleadings or other papers when the question to be decided
arises on demurrer. He is only required to furnish them to the court. (Gait
V. Finch, 24 How. Pra«. 193-196 [Gen. T. 1862].)
RULE 41.
Papers to be Furnished, on Appeal, by Appellant — Printed Copies of Case
and Points — Appeals from Non-enumerated Motions — Delegation of
Powers.
In all cases to be heard in the Appellate Division, except ap-
peals from non-enumerated motions, the papers shall be furnished
by the appellant or the moving party, and in cases agreed upon,
mider section 12Y9 of the Code, by the plaintiff. The party
whose duty it is to furnish the papers shall cause a printed copy
of the requisite papers to be filed in the office of the clerk of the
Appellate Division within twenty days after an appeal has been
taken, or the order made for the hearing of a cause therein, or
298 CouETS OF Record. [Eule 41
the agreed case filed in the clerk's office pursuant to section 1279
of the Code of Civil Procedure; but if it shall be necessary to
make a case or case and exceptions after the appeal has been
taken or the order made for the hearing in the Appellate Division,
the printed papers, including the case as settled and signed by
the judge before whom the case was tried, shall be filed within
twenty days after the settlement of the case ; and the party whose
duty it is to furnish the papers shall serve within said twenty
days upon his adversary three printed copies of such papers.
Such papers shall consist of a notice of appeal, if an appeal
has been taken; a copy of the judgment-roll, or the decree in the
court below, and the i>apers upon which it was entered; if no
judgment was entered, the pleadings, minutes of trial, and the
order sending the case to the Appellate Division or the order
appealed from, or the papers required by section 1280 of the
Code of Civil Procedure. To these papers shall be attached the
case or case and exceptions if it is to be used in the Appellate
Division. All the foregoing papers shall be certified by the
proper clerk, or be stipulated by the parties to be true copies of
the original. There shall be prefixed to these papers a statement
shovsdng the time of the beginning of the action or special pro-
ceeding, and of the service of the respective pleadings ; the names
of the original parties in full ; and any change in the parties, if
such has taken place. There shall be added to them the opinion
of the court below, or an afiidavit that no opinion was given, or,
if given, that a copy could not be procured. The foregoing
papers shall constitute the record in the Appellate Division. If
the papers shall not be filed and served as herein provided by
the party whose duty it is to do so, his opponent may move the
court on three days' notice, on any motion day, for an order dis-
missing the appeal, or for a judgment in his favor, as the case
may be.
The papers in all appeals from non-enumerated motions shall
consist of printed copies of the papers which were used in the
court below, and are specified in the order, certified by the
proper clerk, or stipulated by the parties to be true copies of the
original, and of the whole thereof. There shall be added to
them the opinion of the court below, or an affidavit that no
opinion was given, or, if given, that a copy could not be
procured.
Eule 41] Geneeal Eules of Practice. 299
They shall be filed with the clerk within fifteen days after the
appeal is taken and at the same time the appellant shall serve
upon his adversary three printed copies thereof.
If the appellant fails to file and serve the papers as aforesaid,
the respondent may move, on any motion day, upon three days'
notice, to dismiss the appeal.
If the judge from whose order the appeal is taken orders that
it shall not be necessary to insert in the printed papers upon
which the appeal is to be taken such exhibits or other voluminous
documents as are not necessary for a consideration of the ques-
tions raised by appeal, the clerk shall then certify that the
printed papers are true copies of the originals and of the whole
thereof specified in the order except those omittted by order of
the court.
Rule 43 of 1868, amended. Rule 50 of 1871, amended. Rule 50 of 1874,
amended. Rule 41 of 1877, amended. Rule 41 of 1880, amended. Rule 41
of 1884. Rule 41 of 1883, amended. Rule 41 of 1896, amended. Rule 41
as amended, 1910.
CODE OF CIVIL PROCEDURE.
§ 1353. Upon what papers an appeal will be heard.
§ 1361. Appeal from a determination in a special proceeding — how far reg-
ulated by the General Rules of Practice.
PRINTING PAPERS — Dispensed with only on order of the court] Print-
ing the necessary papers on which the appeal is to be heard is mot for the
benefit of counsel or parties, but of the court, and is not to be dispensed
with, except by its order. (Wheeler v. Falconer, 7 Robt. 45 [Gen. T. 1867].)
Right of Special Term to dispense with the printing of papers on an
appeal.] There is no provision of the Code or the rules which authorizes
the Special Term to direct that papers submitted upon a motion heard at
Special Term, and which have been duly filed and are recited in the order
entered upon such motion, need not be printed in the papers to be used- on
the argument of an appeal from such order; the power to make such direc-
tion can be exercised only upon the theory that some of the papers which
have been so submitted, filed and recited were not actually used, or that
they were not considered by the court in deciding the motion. (Manhattan
Railway Co. v. Taber, 7 Misc. Rep. 347 [Sup. Ct. 1894].)
To be sparingly exercised.] Such power must be sparingly exercised,
and only in cases where there can be no reasonable difference of opinion as
to the materiality of the papers in question. (It.)
Papers to be printed on an appsal from an order of the County Court
granting a new trial.] An appeal from an order of the County Court grant-
ing a new trial on the judge's minutes, is an enumerated motion and must
be placed on the calendar, and brought on upon printed papers. (Harper
v. Allyn, 3 Abb. [N. S.] 186 [Gen. T. 1867].)
300 CoTJETS OF Eecoed. [Rule 41
What papers are required at General Term.] The General Term should
■have before it all the papers upon which the order appealed from is based.
(Eldredge v. Strenz, 39 N. Y. Supr. Ct. 295 [Gten. T. 1875]; Smith v. Chap-
man, 33 How. Prac. 308 [Gen. T. 1867].)
Contents of record on appeals from orders.] On appeals to the Appel-
late Division from orders, all the papers used in the court below mus't he
contained in the record, and all such papers must be referred to in the
order disposing of the motion : otherwise an appeal from an order will not
be entertained (WTiipple v. Eipson, 20 App. Div. 70 [1898].)
— » — The opinion below.] The opinion of the court below cannot be referred
to to show the groimds of the decision, as it forms no part of the record.
(Randall v. New York El. R. R. Co., 149 N. Y. 211 [1896].)
Two independent cases cannot be incorporated in one appeal book.]
Two ■ independent cases should not he incorporated in one appeal book ; the
record on each Sippeal should be printed by itself so that independent judg-
ment-rolls may be made Tip. each embracing only the papers applicable to
OTie case. (Geneva & Waterloo Ey. Co. v. N. Y. C. & H. R. R. E. Co., 24
App. Biv. 335 [1897].)
Appeal book showing no decision of the issues of law.] Where the
appeal book presented by the defendant upon appeal from a "judgment ob-
tained by the plaintiff at a trial of the issues of fact does not show that
any decision in writing of the issues of law raised by the demurrer has
been filed, the judgment is final against the defendant. (McNulty v. Urban,
1 Misc. Rep. 42 [Brooklyn City Ct. 1892].)
Omitting opinion — argument postponed to allow it to be presented.]
Warren v. Warren, 22 How. Prac. 142 [Gen. T. 1»61].)
Argument on the stenographer's minutes, denied.] In an action for
divorce the court denied a motion to allow argument on the minutes of the
stenographer, and to dispense with the printing of the case on appeal, it
appearing that the parties were living together, and that a reconciliation
might thus be effected. (Wanzor v. Wanzor, 25 St. Rep. 753 [N. Y. Com.
PI. 188'8].)
The expense of printing is a necessary disbursement.] The rule requir-
ing papers, which are to be used at General Term, to be printed, renders
the expense of printing a necessary disbursement; the party is confined to
that mode of compensation, and it is error to charge for printed copies of
the case and ,points by the folio. (Brockway v. Jewett, 16 Barb. 590 [Gen. T.
1853].)
Cost of printing what papers, is a taxable disbursement.] The cost of
printing papers not required to be printed by the rules of the court cannot
be taxed as a disbvirsement. (Veeder v. Mudgett, 27 Hun, 519 [1882].)
Expense of preparing the case in a criminal cause.] When the expense
of preparing the case in a criminal cause will be charged upon the county.
(People V. Jones, 34 Hun, 620 [1885].)
Error in printed case — when disregarded.] An error in the printed
case will be disregarded unless corrected by proper application to the court
a.t Special Term, before the case is brought on for argument. (Hi<ikey t.
Draper, 2 Hun, 523 [1874].)
Eule 41] Geneeal Eules of Peactice. 301
Papers used on appeal different from those used below — remedy.]
Where the pi-inted papers on the appeal are not the papers on which the
order below was granted, the remedy is to correct the printed papers filed
antl served, not to strike out from the appeal papers an affidavit which
varied fixmi ithat used below. (People ex rel. Mulligan v. Collis, 8 App.
Div. 618 [1896].)
Rule — how enforced.] The rule will be enforced by considering only
such papers as are printed as being before ihe court. {Wheeler v. Falconer,
7 Rob. 45 [Gen. T. 1867].)
Case, when ordered off the files.] If the case printed and filed does
not correspond with the case as settled, it should be ordered off the files.
Tyng v. Marsh, 42 N". Y. Supr. Ct. 236 [Gen. T. 1877].)
Irregular case.] Where a case is improperly prepared, it should be
dismissed, or should be sent back for resettlement. (Ryan v. Wavle, 4 Hun,
804 [1875].)
Irregularities must be corrected by motion.] Irregularities in the case
must be corrected by motion before the appeal is reached. (Frost v. Smith,
7 Bosw. 108 [N. Y. Supr. Ct. Gen. T. 1860] ; Eters v. Grompe, 15 Abb. 263
[N. Y. Supr. Ct. Gen. T. 1862]. See Warren v. Eddy, 13 Abb. 28 [Gen. T.
I860].)
Amendment of appeal papers not allowed after argument and decision
on appeal.] Leave will not be granted at General Term to amend appeal
papers after argument and decision thereat, on the ground that the correc-
tion of a mistake therein would show that a point decided against the appel-
lant had been waived, when it appears that the point was argued and the
applicant supposed it not well taken. (The People ex rel. Baker v. Board
of Apportionment, 1 Hun, 123 [1874].)
Court cannot shorten time for service of printed case.] The court can-
not shorten the time within which an appellant may file and serve copies
of the printed appeal papers. (Ford v. Lyons, 40 Hun, 557 [1886].)
Appeal papers — must be certified.] An appeal will not be considered
unless the appeal papers have been certified as required by section 1353 of
the Code of Civil Procedure. The observance of the duty imposed by the
said section is regarded as exceedingly important. (Lewisohn' v. Neider-
weissen, 40 Hun, 545 [1886].)
Certificate to an appeal book on appeal from an order.] An appeal
from an order will not be heard where the appeal book does not contain a
certificate that the notice of appeal and papers purporting to have been
presented to the court contained therein are copies of such papers. (Stanton
V. Catholic Mut. Benefit Assn., 8 Misc. Rep. 346 [Supr. Ct. of Buffalo, 1894].)
Uncertified case stricken from calendar.] An appeal should be stricken
from the calendar unless the case has been certified, or it is shown by the
papers that a stipulation had been entered into by the parties that the papers
were copies of the judgment-roll and case. (Crawford v. Price, 51 St. Rep.
927 [Sup. Ct. 1893].)
Exceptions ordered to be heard at General Term — plaintiff must serve
papers.] It is the dvity of the plaintifl' to prepare and serve papers when
exceptions are ordered to be heard in the first instance at the General Term.
302/ Courts of Eecobd. [Rule 41
In case of his failure so to do, judgment will be ordered for the defendant.
(Staacke v. Preble, 43 Hun, 441 [1887].)
APPEAL DISMISSED — If proper papers are not submitted.] Where the
proper papers are not submitted to the court upon appeal the appeal will
be dismissed. (Sun Mut. Ins. Ck). v. Dwight, 1 Hilt. 50 [N. Y. Com. PI.
185S].)
Dismissal — absence of papers.] The absence of papers from an appeal
book is not a ground for dismissal. (Rosskam v. Curtis, 15 App. Div. 190
[1897].)
When it does not appear whether the appeal is from a judgment or an
order.] The appeal will be dismissed when the papers do not show whether
the appeal was taken from a judgment on a demurrer, or from an ord-er
striking out a demurrer as frivolous. (Sun Mut. Ins. Co. v. Dwight, 1 Hilt.
50 [N. Y. Com. PI. 1856].)
New York Common Pleas — failure to print papers — remedy.] Ac-
cording to the practice of this court, a dismissal of appeal is not the exclu-
sive remedy for m^lect to serve the printed papers, but the General Term
has power to affirm by default, and if it does so, the court at Special Term
will not interfere with the judgment. (Brown v. Niess, IS Abb. [N. S.] 345
[Sp. T. 1874]; S. C, 46 How. Pr. 465.)
New York Common Pleas — length of notice to dismiss appeal.] A
motion to dismiss an appeal from, an order denying a motion for a new trial
must be made upon eight days' notice; four days' notice is insufficient. (Ken-
ney v. Sumner, 12 Misc. Rep. 86 [1895].)
By City Court for failure to prosecute.] Under Rule 41 of the General
Rules of Practice the General Term of the City Court of New York may,
by order, dismiss an appeal thereto from a judganent of a Trial Term of
said "Court for failure to prosecute the appeal with reasonable diligence.
(Sayer v. Kirehhoff, 3 Misc. Rep. 245 [N. Y. Com. PI. 1893].)
Dismissal of appeal, for failure to serve printed appeal papers — a sec-
ond appeal cannot be taken without leave of the court.] (Sperling v. Boll,
26 App. Div. 64 [1898].)
JUDGMENT ON APPEAL — Form of.] The memorandum of its decision
handed-down by the General Term, is not a judgment, but simply an authority
to enter one. (Knapp v. Roche, 82 N. Y. 366 [1880].) An objection does not
lie on appeal because a judgment gives the relief more minutely than specified
in the decision. (Applegate v. Morse, 7 Lans. 59 [1872].)
Must conform to remittitur.] A judgment entered on a remittitur
must conform thereto. (Parish v. Parish, 87 App. Div. 430 [1903].)
POINTS — What is covered by.] Only the heads of an argument and the
authorities cited, and not the argument at length, are embraced under the
term points. (Gray v. Schenck, 3 How. Prae. 231.)
—^Submission of brief after argument.] A judge cannot consider a paper
submitted after argument by one party without notice to the other. (Whitney
V. The New York & Atlantic R. R. Co., 32 Hun, 164 [1884].)
Error considered, though not argued.] \^^hen the General Term will
consider an error committed on the trial to which an exception was taken.
Eule 42] General Eules of Peactice. 303
although the points do not mention it. (Schoonmaker v. Woolford, 20 Hun,
166 [1880].)
On appeal an order is presumed to have been correctly granted.] An
order appealed from is presumed to be correct, and until the papers upon
appeal show that it should not have been granted, it necesisarily devolves upon
an appellate court to affirm the order. (Mellen v. Banning, 76 Hun, 225
[1894].)
Appellant's points should point out defects.] The appellant's points
should direct the attention of the court to the features of the case upon
which the reversal of the judgment is asked for, anid if this is not done the
court will refuse to examine such question. (Landers v. Staten Island K. R.
Co., 13 Abb. Pr. [N. S.] 338 [Gen. T. Brooklyn City Ct. 1872].)
Numerous exceptions — on appeal duty of counsel to point out in his
points those upon which he relies.] When numerous exceptions to rulings
upon evidence are to be passed upon by the court, it is the duty of counsel lo
aid the court by selecting exceptions upon which he relies, and stating
tersely in his brief the ground upon which they should be sustained. (Nelson
v. Village of Canisteo, 100 N". Y. 89 [1885] ; Hebbard v. Haughian, 70 id. 61
[1877]; Jewell v. Van Steenburgh, 58 id. 85.)
Opening of default.] Opening of a default is with the Special Term,
but after case is settled and filed, the filing and service of tbe papers upon
which an appeal is heard are part of the appeal, and the opening of any
default therein lies with the Appellate Division. (Hansen v. Walsh, 117 App.
Div. 39.)
Stipulation not in record.] Appeal from order of Appellate Division
will not consider stipulation not contained in the record. (Wilson v. Harter,
57 App. Div. 484; People v. Stephens, 52 N. Y. 306. See, also, Russell v.
Randall, 123 id. 436; People ex rel. Harman v. Culkin, 60 Misc. Rep. 414.)
What is a final order.] Order settling account of committee o^ incom-
petent is a final order is a special proceeding. (Matter of Chapman, 162
N. Y. 456. See, also, 163 id. 345; 164 id. 354; 165 id. 305.)
Matter in brief disapproved of.] The printing of a private letter of a
judgie in a brief is disapproved of. (Macintosh v. Kimball, 101 App. Div.
500.)
See QOtes under Rule 32.
KULE 42.
Exchange of Briefs and Delivery of Papers.
The Appellate Division in any department may make such
rules in relation to the exchange of briefs and the delivery of
papers and briefs to the justices thereof as they may deem
expedient in all cases, whether enumerated or non-enumerated.
Rule 42 of 1896.
304 Courts op Eecobd. [Eule 43
RULE 43.
Cases and Points, to be Printed and Indexed — Number to be Delivered to
the Court.
The cases and points, and all other papers furnished in the
Appellate Division in calendar cases, shall be printed on white
writing paper, with a margin on the outer edge of the leaf not
less than one and a half inches wide. The printed page, exclu-
sive of any marginal note or reference, shall he seven inches long
and three and a half inches wide. The folio, numbering from
the commencement to the end of the papers, shall be printed on
the outer margin of the page.
The cases and points in each case shall be imiform in size and
in the type of this ride.
All cases cited on the briefs from the courts of this State shall
be cited from the reports of the official reporters, if such cases
shall have been reported in full in the official reports.
At the beginning of the argument of any appeal, the party
whose duty it is to furnish the papers shall deliver to the clerk
thirteen copies thereof, and each party shall deliver to the clerk
thirteen copies of his briefs and points. The clerk shall deliver
one copy of the papers and briefs to each justice, two to the
official reporter, and shall transmit one to the librarian of the
State Law Library, one to the clerk of each of the other depart-
ments, and shall dispose of the remainder as directed by the
court. The Appellate Division in any department may require
further copies, of the papers and briefs to be delivered in their
discretion.
The printed papers on appeal shall contain an index in the
front thereof. The index of the exhibits shall concisely indicate
the contents or nature of each exhibit and the folio of the case
at which it is admitted in evidence and at which it is printed
in the record. Said index shall also contain a reference to
the folios at which a motion for a dismissal of the complaint or
the direction of a verdict is contained ; and to the certificate that
the case contains all the evidence. At the top of each page of the
case or bill of exceptions must be printed the name of the witness
then testifying and of the party calling him, and indicating
Eule 45] Geneeal Eules of Practice. 305
whether the examination is direct, cross or re-direct. Each affi-
davit or other paper printed upon an appeal from an order shall
be preceded by a description thereof that must specify on whose
behalf it was read; and the name of the affiant shall be printed
at the top of each page containing an affidavit. On an appeal
from an order granting or denying a motion to strike out parts
of a pleading as irrelevant, redundant or scandalous, or to make
a pleading more definite and certain, the portion of the pleading
to which the motion relates must be printed in italics.
Rule 46 of 1858, amended. Rule 52 of 1871, amended. Rule 52 of 1874,
amended. Rule 43 of 1877. Rule 42 of 1880. Rule 42 of 1884. Rule 42
of 1888, amended. Rule 41 of 1888, amended. Rul e43 of 1896. Rule 43
as amended, 1910.
OMISSION OF INDEX — Case stricken from calendar.] A case should be
strieken from the calendar of the General Term in the absence of the index
required by Rule 42, and where the judgment-roU has not been printed. (Reid
V. Mayor, etc., of New York, 50 St. Rep. 758 [Sup. Ct. 1893].)
RULE 44.
Non-enumerated Motions, When Heard — Default, How Taken.
Non-enumerated motions in the Appellate Division and ap-
peals from orders will be heard upon such days as are designated
by the special rule of the Appellate Division in each department.
If a non-enumerated motion noticed to be heard at the Appel-
late Division shall not be made upon the day for which it is
noticed, the party attending pursuant to notice to oppose the
same, may, at the close of that order of business, unless the court
shall otherwise order, take an order against the party giving the
notice, denying the motion, with costs.
Rule 48 of 1858, amended. Rule 54 of 1871, amended. Rule 54 of 1874,
amended. Rule 45 of 1877, amended. Rule 43 of 1880, amended. Rule 43
of 1884. Rule 43 of 1888, amended. Rule 44 of 1896. Rule 44 as amended,
1910.
See notes to Rules 22 and 37.
RULE 45.
Additional Allowance, Where to be Applied For.
Application for an additional allowance can only be made to
the court before which the trial is had, or the judgment ren-
20
306 CouETS OF Eecoed. [Rule 45
dered, and shall in all cases be made before final costs are
adjusted.
Rule 52 of 1858. Rule 56 of 1871, amended. Rule 56 of 1874, amended.
Rule 47 of 1877. Rule 44 of 1880. Rule 44 of 1884. Rule 44 of 1888,
Rule 45 of 1896.
CODE OF CIVIL PROCEDURE.
§ 2562. Additional allowance — when surrogate may grant.
§ 2563. Upon a sale of real estate of decedent.
§ 3252. To plaintiff in foreclosure, partition, etc.
§ 3253. To either party in foreclosure, partition, or in difiBcult, etc., cases.
§ 3254. Limitation to $2,000.
§ 3262. How computed upon taxation of costs.
ADDITIONAL ALLOWANCE — Motion — to what court made.] The ap-
plication must be made to the court of original jurisdiction. The appellate
court has not power to grant an extra allowance. (Wolfe v. Van Nostrand,
2 N. Y. 570 [1830]; S. C, 4 How. Prac. 208; People v. N. Y. C. R. R. Co., 29
id. 418, 428 [1864].)
Submission of controversy.] An extra allowance of costs may not be
granted in a controversy submitted upon an agreed case, pursuant to section
127& of the Code of Civil Procedure. (See People v. F. R. R. Co., 133 N. Y.
239 [1892].)
Motion — in what county made.] It should be made in the county
where the judgment was rendered unless some special reason exists for apply-
ing elsewhere. (Niver v. Rossman, 5 How. Prac. 153 [Sp. T. 1850] ; S. C, 3
Code Rep. 192; contra. Strong v. Snyder, 6 id. 11 [Sp. T. 1851].)
Additional allowance made at Rochester in an action tried in New
York — set aside.] An order for an additional allowance was made at a
court held in the city of Rochester in an action of which the place of trial
was in the city and county of New York. Held, that it should be reversed.
(Bear v. The Aemrlcan Rapid Telegraph Co., 36 Hun, 400 [1885].)
In the first district.] In a case triable in the first district, a motion
for an extra allowance can only be made in that district, although the justice
who tried the case resides in another district. (Hun v. Salter, 92 N. Y. 651
[1883].)
Application should be to the same court or judge trying the case.]
The application should be made at the Circuit at which the case was tried.
or to the justice who held the same, and to none other. (Saratoga & Wash-
ington R. R. Co. V. McCoy, 9 How. Prac. [Sp. T. 1863]; Osborne v. Betts,
8 id. 31 [Sp. T. 1853] ; Dyckman v. McDonald, 5 id. 121 [Sp. T. 1850] ; Van
Rensselaer v. Kidd, Id. 242 [Sp. T. 1850] ; Sackett v. Ball, 4 id. 71 [Sp. T.
1849].)
Rule that the motion must be made before the judge before whom the
action was tried — when not applicable.] The object of the rule that a mo-
tion for an extra allowance should be made at a term held by the judge
Hule 45] General Rules of Practice. 307
who presided at the trial was that he might be possessed of the facts and
circumstances transpiring at the trial; such rule has no application to a case
in which the complaint was dismissed on motion and there was no protracted
trial, and where the judge before whom the motion for an allowance is made
has almost as much information as to the nature of the issue and what
transpired on the occasion of the dismissal as the trial judge. (Wilber v.
Williams, 4 App. Div. 444 [1896].)
Waiver of objection that application was made to wrong judge.] The
objection that application for extra allowance was ^not made to proper court
or judge, is not one that goes to the jurisdiction of the court. It is a rule
of practice solely, and may be waived by the adverse party. The objection
is deemed waived if not taken at the time of the argument. (Wiley v. Long
Island Railroad, 88 Hun, 177 [1895].)
Motion, where made.] A motion for an additional allowance can only
be made in the branch of the court where the trial was had. (Toeh v. Toch,
9 App. Div. 501 [1896].)
It must be to the court, and not to a justice at Chambers (Mann &
Others v. Tyler & Others, 6 How. Prae. 235 [Sp. T. 1851]), except in the first
district.] (Main v. Pope, 16 How. Prac. 271 [Sp. T. 1858]. See, also, Abbey
V. Wheeler, 57 App. Div. 414 [1901].)
Extra allowance by the General Term unauthorized.] Where at the
end of a trial both sides ask for the direction of a verdict and the court orders
the jury to find for the plaintiffs, exceptions to be heard in the first instance
at the General Term, the power of the General Term ends with the overruling
of the exceptions and directing judgment for the plaintiflfs, and an allowance
to them by it is unauthorized. (Moskowitz v. Hornberger, 20 Misc. Rep.
558 revg. 19 id. 429 [1897].)
LIMIT — Fees of a special guardian.] The fees and compensation of a
special guardian on the sale of an infant's real estate axe to be determined
by the court. (Matter of Matthews, 27 Hun, 254 [1882].)
Not limited by the Code.] The power of the court to provide for the
compensation of a guardian ad litem- is not limited to the sumi of $2,000
fixed by section 3254 of the Code of Civil Procedure. (Weed v. Paine, 3'1 Hun,
10 [1883].)
Limitation of — to $2,000.] Where both sides are successful, the court
has power to award additional allowances not exceeding $2,000' to each side, or
$4,000 in the aggregate. (Weed v. Paine, 31 Hun, 10 [1883]; Code of Civil
Procedure, § 3254.)
Aggregate amount limited. (Weed v. Paine, 31 Hun, 10 [1883].)
Limit in foreclosure — it cannot exceed $200.] Where the chief pur-
pose of an action to foreclose a mortgage upon both real and personal prop-
erty is to foreclose a inortgage upon real property, the allowance granted
cannot exceed the sum of $200, although the case is difficult and extraor-
dinary. (Waterbury v. Tucker & Carter Cordage Co., 152 IS'- Y. 6110 [1897].)
Application for — notice.] Notice of an application for an extra allow-
ance is not necessary, where the judge who tries the cause makes the order at
the same term. (Mitchell v. Hall, 7 How. Prac. 490 [Sp. T. 1853].) If not
308 Courts of Reooed. [Rule 4r5
nLa(fe then, HOtiee slwmld lie given as In other eases. ( Saratoga & Washington
R. B. Ox V. MeCoy, » How. Prjic. 339 ['Sp. T. 1853 J; Mami v. Tjler, 6 id.
235 [Sp. T. 185II; Howe v. Muir, 4 id. 252 [Sp. T. 1850].}
The papers must show the- facta.] Motions for extra allowances must
be made irpon papers showing the facts upon which the claim is based. (Gori
V. Smith, 6 Rob. 563 [Gen. T. 1867]; S. C, 3 Abb. [K S.] 51.)
An attorney compelled to repay an unlawful allowance in a partition
snit,] An attorney for the plaintiff, in an action of partition, who has re-
ceived an estra. allowaaice exceeding the amount permitted by the statute, may
be compelled to return the escess to the referee. (Cooper v. Cooper, 27 Misc.
Rep. 595 [1899].).
WHEN MADE.] The- application should be made at the trial, on the eoom-
ing in of the verdict, or in any event during the term at which the trial is
had (Flint v. Riehariteon, 2 Code R. 80 [Sp. T. 1849:]),, but net until all the
litigation is ended. (Powers v. Wolcott, 12 How. Prac. 565 [Sp. T. 1856}.)
Cannot be made after the costs are adjusted.] A motion for an addi-
tional allowance «aninot be granted after the adjustment of the costs of the
ajettsHi; the efTect of such adjustment is not changed by the- fact that other
coats awardted oa ain application to open the drfault are still unadjtBted.
(Jones V. Wakefield, 21 Wklj. Dig. 2S7 [Sup. Ct. 1885.]'.)
Befoce adjustment of costs.] It must be made before costs have been
adjusted and judgment entered. ( Clark v. The City of Rochester, 2d How.
Prae 97 [Gen. T. 1869J; affd., Id. Ill, 112; 34 N. Y. 355'[1865]; Martin v.
McCoirmrek, 3. Sandf. 755 [Sp. T. 1851J; S. C, 1 Code R. [N. S.] 214.) The
contrary decision made in Beals v. Benjamin, 29 How. Prac. 101 [Sp. T. 1864],
was reversed at General Term. (Id. Ill, 112.)
Additional allowance must be before costs are taxed.] An application
for an extra aEowance must be made befare the costs are taxed and j'udgment
6ntered in the trial' eotirt; it is too late to make it after the JTidgment has
been affirmed on appeal, althoTigh before its entry under the order of affirm-
ance. (Winne v. Fanning, 19 Misc. Rep. 4'10 [1897].)
Receiving costs — effect of.] Receiving costs on the discontinuance of
an aietion does not necessarily prejudice a pending motion for an extra allow-
ance. (Moulton v. Beecher, 1 Abb. N. C. 245 [Sup. Ct. 1876].)
After juigment, too late.] It is too late after judgment, at the Gen-
eral Term, on appeal. (Van Rensselaer v. Kidd, 5 How. Prac. 242 [Sp. T.
18501.)
Motion made after judgment absolute in Court of Appeals.] A motion
for an additional allowance may be .made after a judgment absolute has been
ordtered by the Court of Appeals. (Parrott v. Sawyer, 26 Hun, 466 [1832].)
For note on addit.ioim] allowance, see Bank of Mobile v. Phoenix Insurance
C&. (8 N. Y. Civ. Proc. R. 212-21f>).
No additional allowance nnless there hais been a txiaL] It would aeem
thaft where, in a partition suit, which is equitable in natvire, the issues joined
haiTB been sent to a Trial Term for a jury trial, wlicre the trial justice dis-
misses the complaint so that there has been no trial, the suoeeasful :party is
not entitled to an extra allowance. (Toeh v. Toch, 9 App> Div. 501 [1896].)
Eule 415]' Genekal Rules of Pbactiob. 309
WHEN GRAUTED — Not in special proceedings.] The provision for an
extra allowance applies to actions only, and niot to special proceedingB. '(^ens-
selaer & Saratoga 'R. R. Co. v. Davis, 55 N. Y. 14,5 [1873] ; Matter of Bolden,
126 id. 589 [1891]; German Savings Bank -v. Sharer, 25 Hun, 409 [18811;
Matter of Simpson, 20 id. 459 ti882].) See, however, €ode of Civil Procedure,
In special proceedings on a motion for favor.] The statutes author-
izing extra allowance do not 'apply to special proceedings, andi such allowance
cannot he given under an order giving costs; in such a case the limitation to
those for similar services, etc., in actions controls, yet that Testriction does
not apply to a onotion foi- favor, and the court in granting such a motion is
not limited to taxable costs and disbursements as a condition. (Kew York,
West Shore & Buffalo Ey. Co. v. Thome, 1 How. Prae. [N. S.] 190 [Sup. Ct.
Gen. T. 1884].) See, however, Code of Civil Procedure, § 3253.
Not granted when plaintiff was guilty of misconduct nor against an
insolvent savings bank.] An additional allowance should not be granted
against a defendant which has been misled by plaintiff's conduct into inter-
posing its defense, nor against a savings bank where its assets are not suffi-
cient to pay its depositors in full. (Kelly v. Chenango Valley Sav. Bank, 45
N. Y. Supp. 658.)
When granted to codefendants.] Where, in an action brought by trus-
tees to enjoin the operation of an elevated railroad and/ for damages to the
trust property, the beneficiaries, upon their refusal to joiir in the action, have
been made parties defendant, the court may grant them an extra alloTyance as
against the xailroad company. (Roberts v. N. Y. Elevated R. R. Co., 12 Misc.
Rep. 345 '[1895].)
But one allowance, though there be several trials.] Only one extra
allowance can be recovered, although the ease may liave been tried several
times. (Flynn v. Equitable Life Assn. Society, 18 Him, 212 [1879].)
Swonfl trial] When made on a second trial, although not -difficult.
(Howell v. Van Siclen, 4 A¥b. i^. C. 1 [Court of Appeals, 18771.)
Actions in which the court has power to grant an extra allowance.]
In all actions which are difficult or extraordinary, when a defense has been
interposed and a trial had. (C^oates v. Goddard, 2 J. & S. 118 ISupr. Ct.
1871].)
Case both difficult and extraordinary.] The case must be both difficult
and extraordinary to authorize .an extra allowance. It mnst involve something
unusual, and be such as to require more than ordinary labor and previous
preparation by counsel. (Dimean v. De Witt, 7 Hun, 184 [1876]; Swan v.
Stiles, 94 App. Div. 117.)
Proof of value necessary.] In an action brought by an abutting owner
against a corpoTation operating a railroad on a street withont authority, the
value of the subject-matter must be shown in order to afford a basis for an
additional allowance to plaintiff. (Black v. Brooklyn Heights R. R. Co., 32
App. Div. 468 [1898].)
Additional allowance, affected by the amount involved.] In determin-
ing whether or not an additional allowance should be granted, the amount
310 CouETs 01? Recokd. [Rule 45
involved in the action may be considered, as the fact that a large amount de-
pends upon its decision naturally increases the anxiety and responsibility of
the attorney and justifies the employment of eminent counsel. (Gooding v.
Brown, No. 2, 35 Hun, 153 [1885].)
Povrer of court.] The povirer to grant additional allowance is not
'afl'ected by stipulation of settlement two days before trial. (People v. Bost-
man, 180 N. Y. 1.)
Offer, after a defense is interposed, to allow judgment, and acceptance
thereof.] The court has power, notwithstanding such offer and acceptance,
to grant an extra allowance. (CJoates v. Ooddard, 2 J. & S. 118 [Supr. Ct.
1871].)
When imposed, on application to discontinue.] It is proper in difficult
and extraordinary cases to require payment of an allowance, in addition to
costs, as a condition of leave to discontinue. (Robbins v. Gould, 1 Abb. X. C.
133 [Sup. Ct. 1876]; Moulton v. Beecher, Id. 245.)
Basis of.] Can be granted only on a money basis upon which a per-
centage can be calculated. (Coates v. Goddard, 2 J. & S. 118 [Supr. Ct.
1871].)
Trade mark — allowance based thereon.] In a difficult and extraordi-
nary action brought to restrain the infringement of a trade-mark, of which
the value and the profits therefrom are proved, an extra allowance is proper.
(Waterman v. Shipman, 47 N. Y. St. Rep. 418 [Sup. Ct. Gen. T. 1892].)
Basis furnished by evidence at the trial.] In an action against an ele-
vated railroad company plaintiff demanded damages of $250,000 — and upon
the trial the value of his property was proved to be $125,000 — which was the
sum named in his claim of damage. Held, that while the demand in the com-
plaint being denied in the answer afforded no basis for computing an addi-
tional allowance, the evidence at the trial did so. (Israel v. Metropolitan
R. R. Co., 10 Misc. Rep. 722 [i895].)
Plaintiff's claim may be the basis for an extra allowance to the defend-
ant.] Where in an action for the dissolution of a partnership and an
accounting, no specific sum is demanded, but the plaintiff claims to have ad-
vanced $9,000, no part of which has been paid by the defendant, who has
given his notes therefor as for advances made in his behalf, such amount
affords a basis for an additional allowance to the successful defendant-
(Proctor V. Soulier, 8 App. Div. 69 [1896].)
Basis shown subsequently by afSdavit.] The basis for an extra allow-
ance is the value of the subject-matter involved, and where no proof of this
is made at the trial of an equity action it may be shown afterward by affi-
davit. (Hayden v. Matthews, 4 App. Div. 338 [1896].)
Additional allowance refused where no damages were demanded in the
complaint, there being no basis therefor.] Where, in an action brought to
obtain an injunction against the diverting or polluting of the water of a
stream, the complaint alleges that the defendant so operated his salt works
as to justify the relief prayed for, but no damages are demanded, the defend-
."int is not, upon a dismissal of the complaint, entitled to an extra allowance
upon the basis of the difference between the value of his salt works as they
Eule ^S] General Eules 01- Practice. 311
were, and their value if the injunction were granted, which would depreciate
nine-tenths, under a claim thait this was the " subject-matter involved," within
the Code of Civil Procedure, section 3253; as such, this damage would be
incidental merely, and there is no basis upon which to estimate an allowance.
(Godley v. Kerr Salt Co., 3 App. Div. 17 [1896]. See, also, Meyer Rubber
Co. V. Lester Shoe Co., 92 Hun, 52 [1895].)
Short cause, no basis for extra allowance.] An ordinary action tried
as a short cause within an hour, the record of which discloses nothing diffi-
cult or extraordinary, affords no basis for an extra allowance. (Gillespy v.
Bilbrough, 15 App. Div. 212 [1897].)
Increase of extra allowance made on uncertain evidence set aside.] An
increased extra allowance granted in an action to charge certain lands with an
annuity is not justified when based upon the valuation of the annuity as
derived from uncertain evidence of the annuitant's age. (Arthur v. Dalton,
14 App. Div. 115 [1897].)
Basis in an action against a municipal corporation relative to a right
of way.] \^Tiere a final judgment is entered restraining a city from laying
out a street across land of a railroad company already condemned for its
use, the basis for an additional allowance is simply the expense of a suitable
crossing at grade, and not the incidental damage likely to he occasioned.
(Rochester & Honeoye Valley R. R. Co. v. City of Rochester, 17 App. Div.
257 [1897].)
Where a lease is not a basis therefor.] Where the relief sought in an
action is the possession of premises under a lease of which plaintiff is assignee,
and of the value of which no proof is adduced, there exists no basis for the
computation of an extra allowance to .plaintiff. (H. Koehler & Co. v. Brady,
22 App. Div. 624 [1897].)
Basis where recovery is had against one defendant only.] In an action
on a Uoyds policy of insurance, which provides that suit may be brought
against one indemnitor only, the others being bound by the judgment therein,
the plaintiff, upon recovering against one indemnitor, is only entitled to a
extra allowance based upon the proportion for which he is liable. (Laird v.
Littlefield, 34 App. Div. 43 [1898].)
Trade-mark, not in itself a basis for an allowance.] A trade-mark has
not in itself, as distinct from the value of the article of which it is the trade-
mark, any money value which can constitute a money basis on which to com-
pute an extra allowance. (Coates v. Goddard, 2 J. & S. 118 [Supr. Ct. 1871].)
Trade-mark — value of subject-matter must be shown.] An extra
allowance granted in an action to restrain the use of plaintiff's trade-mark
will be set aside by the General Term where there is no allegation in the
complaint, nor any testimony in the record, as to the value of the subject-
matter involved. (De Long v. De Long Hook & Eye Co., 89 Hun, 399 [1895].)
Where the value of the subject-matter is not shown, and there is no
evidence or admission from which the court can compute it, no additiouiil
allowance can be granted. (Smallwood v. Schwietering, 10 Misc. Rep. 103
[1894].)
312 CotTETs OF Eecoed. [Rule 45
In an equity action extra allowance should be a reasonable counsel
fee.] While in an eqiiity action for an injunction and an accounting for the
infringement of a trade-mark the basis for computing an extra allowance is
not the amount of the damages recovered merely, but the value of the trade-
mark, the allowance should, under the Code of Civil Procedure, section 3253,
be what the ooTirt may deem a reasonable counsel fee in the cause. (Perkins
V. Heert, 14 Misc. Rep. 425 [1895].)
To compel the lowering of a dam.] In an action brought to compel a
party to lower a dam which sets back water upon the lands of the plainif:
and to recover damages, an additional allowance may be computed upon the
damages recovered, but not upon the value of the land. (Rothery v. N. Y.
Rubber Co., 90 N. Y. 30 [1882].)
Action by a taxpayer.] Extra allowance against a taxpayer sustained.
(Hart V. Mayor, etc., of N. Y., 16 App. Div. 227 [1897] ; Gordon v. Strong, 15
id.. 519 [1897].)
Allowance upon a corporate franchise.] How an additional allowance
is to be computed upon a corporate franchise. ( Conaughty v. Saratoga County
Bank, 28 Hun, 373 [1882].)
Action by the Attorney-General to annul a charter.] In an action
brought by the Attorney-General to annul the charter of a savings and loan
association in which the complaint was dismissed, the 'Special Term is justified
in granting an extra allowance of $500 upon affidavits to the effect that the
value of the franchise in question was at least $20,000 ; that the case was
diiEcult and extraordinary, andl giving a detailed statement of the time spent
in oQinducting the defense. (People v. Rochester Dime Savings & Loan Assn.,
7 App. Div. 350 [189&].)
Extra allowance improper in special proceeding.] An order for an
extra allowance in a proceeding to acquire the franchises and property of a
water company, instituted, not under the General Condemnation Law, but pur-
suant to Laws of 1892, chapter 481, cannot be sustained under Code of Civil
Procedure, section 3372, nor under section 3240, which authorizes costs in
special proceedings. (Matter of City of Brooklyn, 88 Hun, 176 [189.3].)
Basis for extra allowance to a successful defendant in an action for an
injunction.] In an action for an injunction against laying a private subway
for electrical apparatus, proof that the annual rental for the use by the de-
fendant of a subway constructed by the plaintiff pursuant to statute would
be $700 per mile, and that the value of the subway to be constructed would be
$60,000, justiiies the granting of an extra allowance to the defendant succeed-
ing in the action. (Empire City Subway Co. v. Broadway & Seventh Ave.
R. R. Co., 87 Hun, 279 [1895].)
In an action to dissolve a corporation.] How computed in an action
to dissolve a corporation. (Peoule v. Rockaway Beach Improvement Co., 28
Hun, 356 [1882]].)
Action to recover the interests of a corporation in transferred prop-
erty.] Where stockholders of a corporation seek to recover the value of its
interest in certain boats transferred to 'one of the defendants which the latter
has allowed to become forfeited by the omission of a payment under a con-
Eule ^S] GENER,i.L Rules of PitACTicE. 313
ditional contract of purchase, and demand such an amount as will represent
the earnings of the boats, stated in the complaint and an affidavit as about
$500,000, a basis for aji allowance to the defendants succeeding in the action
is afforded under Code of Civil Procedure, section 3253. (Hart v. Ogdensburg
& Lake Champlain R. R. Co., 89 Hun, 316 [1895].)
Allowance in an action on notes.] Where, in an action on promissory
notes, the full face value is demanded on the assumption that they are all
business paper, and one note is an accommodation note on which the whole
amount is mot due, the cause being otherwise a suitable one, and there being
no offer of judgment by the defendant, an additional allowance to plaintiff is
proper. (State Bank of Lock Haven v. Smith, 85 Hun, 200 [1895].)
Partition suit — allowance in.] Act amending section 3253, Code of
Civil Procedure, in relation to extra allowances, by transferring actions for
partition from the first to the second subdivision. (Laws of 1899, chap. 299.)
An extra allowance in partition.] In an action for partition of lands,
part of a residuary estate, the devise of which was sustained against plain-
tiff's contention, an additional allowance of $150 was granted and sustained
upon appeal. (Preston v. Howk, 3 App. Div. 43 [1890].)
Allowance in a partition suit when a defense has not been interposed.]
An answer in partition which demands relief against a codefendant, but does
not tend to defeat the plaintiff's claim, does not present a case " where a
defense has been interposed," within section 3253 of the Code, as amended in
1898, and in such case the aggregate allowances cannot exceed $200. (Defen-
dorf V. Defendorf, 2G Misc. Rep. 677 [1899].)
Only the pecuniary importance of the litigation considered.] To jus-
tify an extra allowance, the importance of the litigation is only to be con-
sidered so far as it has a pecuniary basis. If no money value can be placed
upon the subject-matter involved, au allowance is not authorized. (Con-
aughty V. Saratoga County Bank, 92 N. Y. 401 [1883]; People v. Albany
& S. R. R. Co., 5 Laus. 25 [Gen. T. 1871] ; Weaver v. Ely, 83 N. Y. 89 [1880].)
Action for the reformation of an instrument.] An additional allow-
ance cannot be granted in an action for the reformation of an instrument
merely. (Heert v. C'niger, 14 Misc. Rep. 608 [189-5].)
A trial not necessary to the granting of.] A trial is not a necessary
element for the granting of an extra allowance when a defense has been inter-
posed in a difficult and extraordinary case; nor is it necessary that a judg-
ment should be actually entered. (Coffin v. Coke, 4 Hun, 618 [1875].)
Not granted on a leasehold nor where no defense has been interposed.]
In an action to foreclose a mortgage upon a leasehold, an additional allowance
cannot be granted under Code Civ. Prov., § 3253, subd. 1, nor can an allow-
ance be granted under subdivision 2 where no defense has been interposed.
(Barnes v. Meyer, 41 N. Y. Supp. 210 [1896].)
Allowance where the subject-matter is a two years' lease.] What
must be shown to justify an allowance where the subject-matter involved
is a two years' lease, subject to rent. (Heilman v. Lazarus, 90 N. Y.
672 [1882].)
314 CouETS or Recoed. [Rule 45
A demurrer is a defense.] Semble, that a demurrer is a defense within
the meaning of that term as used with regard to extra allowances. (Winne
V. Fanning, 19 Misc. Rep. 410 [1897].)
Plaintiff not entitled to an extra allowance where he is not the success-
ful party.] Where defendant conceded plaintiff's right to recover the sum
demanded, but interposed a counterclaim on which he was awarded a sub-
stantial recovery, the amount of which was deducted from the sum con-
ceded to be due to plaintiff, an order for an additional allowance for plaintiff
should be reversed. (Commercial Nat. Bk. of Chicago v. Hand, 27 App. Div.
145 [1898].)
Allowed only where general costs are recovered.] Where a party, by
the final judgment, does not recover general costs, but costs of the appeal
only, he is not entitled to an additional allowance. (Savage v. Allen, 2 N. Y.
Sup. Ct. E. 474 [Gen. T. 1874].)
Indemnity — allowance is granted as.] An additional allowance is
made by way of indemnity to the party succeeding in the litigation. The
amount to be allowed must be fixed by the court, subject to the limitation
in the statute that the maximum shall not exceed five per cent " on the
amomit of the recovery, claim or subject-matter involved." (Burke v.
Candee, 63 Barb. .552 [Sp. T. 1872].)
A contingent interest of the attorney in the recovery where the re-
covery is large militates against an additional allowance.] An extra allow-
ance should not be awarded in an action against a railroad corporation
wlierc the attorney for plaiutiiT has a contingent interest in the amount re-
covered, which is a large one, and the case is not actually extraordinary and
difheult. (Allen v. Albany Ry., 22 App. Div. 222 [1897].)
Premature application.] A motion for an extra allowance in an action
against an administrator is premnture, 'f )nade before the right to recover
the ordinary taxable costs has been determined. (Mersereau v. Eyers, 12
How. Prac. 300 [Sp. T. 1856].) It seems that it might be made at the same
time and upon the same papers with a motion for the ordinary costs. (lb.)
Second motion for an additional allowance, when irregular.] A second
motion for an additional allowance is irregular and properly denied when
made without leave of the court after denial of the former motion. (Man-
hattan Ry. Co. V. Klipstein, 84 Hun, 579 [1895].)
Discretionary.] As a rule, the granting or withholding of an extra
allowance is discretionary with the court to which the application is made.
(Riley v. Hulbert, 13 N. Y. Wkly. Dig. 101 [1881]; Morss v. Hasbrouck, Id.
393 [1881].)
Interference by appellate court.] An extra allowance is so much within
the discretion of the trial judge that an appellate court seldom intervenes.
The General Term will decline to interfere with an order denying an extra
allowance, but providing for a renewal of the motion upon certain contin-
gencies, where the appeal book does not contain all the papers used upon the
motion. (Meyer Rubber Co. v. Lester Shoe Co., 86 Hun, 473 [1895]; Eames
Vacuum Brake Co, v, Prosser, 88 id. 343 [1895].)
Rule 45] Geneeal Rules of Peacticb. 315
An appellate court will only interfere in the event of an abuse of
discretion.] The granting of an additional allowance is discretionary with
the judge to whom application therefor is made, and the appellate court will
interfere only in case of an abuse of discretion. (Proctor v. Soulier, 8 App.
Div. 69 [1896].)
Costs.] Extra allowance, when granted, forms part of. (Coates v.
Godard, 2 Jones & S. 118 [Supr. Ct. 1871].)
In murder trial.] Allowance may be made for each of several trials.
(People V. Montgomery, 101 App. Div. 338.)
Power of court to grant.] When court has power independent of
statute to modify its judgment. (Cooper v. Cooper, 51 App. Div. 595, 164
N. Y. 576.)
Section 3253 does not authorize granting of additional allowance of
more than $200 in action to foreclose mortgage. (Waterbury v. Ardage Co.,
152 N. Y. 610.)
Applies only to action in which answer or dejnurrer interposed.
(People V. F. R. R Co., 133 N. Y. 239.)
No allowance in mandamus proceedings to reinstate employee, ( People
%'. Hertle, 46 App. Div. 505.)
Section 3253 authorizes extra allowance of five per cent, to be made to
defendant in partition. (Grossman v. Wyckoff, 64 App. Div. 554. See United
Press v. N". Y. Press Co., 164 N. Y. 406.
Conrt may award more than $200 additional costs in foreclosure —
when. (L. I. L. & T. Co. v. L. I. C. & N. R. Co., 85 App. Div. 36.)
When an action may be difficult but not extraordinary in the purview
of the statute. (Smith v. Lehigh Val. Ry. Co., 77 App. Div. 47. See, also.
Standard Trust Co. v. X. Y. C. & H. R. R. Co., 178 N. Y. 407.)
Difficult and extraordinary case resulting over counterclaim does not
authorize extra allowance to plaintiif. (Huber v. Clark, 105 App. Div. 127.)
Applicable to either questions of law or fact. (Am. Fruit Product Co.
v. Ward, 113 App. Div. 319; Sehlegel v. R. C. Church of Brooklyn, 124 App.
Div. 502; Matter of Water Supply in N. Y., 125 App. Div. 219.)
■ No extra allowance granted where issue raised by answer of one de-
fendant not yet tried. (Bush v. O'Brien, 52 App. Div. 452.)
Court cannot award parties in the aggregate more than five per cent.
on value of subject-matter. (Doremus v. Crosby, 66 Hun, 125. See, also,
Kirsch v. Macomber, 44 St. Rep. 654.)
• Under section 3262, taxation does not apply to items the amount of
which depends upon agreement. (McKeon v. Horsfall, 88 N. Y. 429. See
Cassidy v. McFarland, 139 N. Y. 20a.)
Court cannot make an extra allowance to the petitioners in a pro-
ceeding for the voluntary dissolution of a corporation. (Matter of White
Plains, etc., Ry. Co., 133 App. Div. 297.)
Under Code, section 2562, executors are entitled to an allowance of
ten dollars per day while preparing their account. (Matter of Martin, 124
App. Div. 793.)
316 CouETS OF Eecobd. [Rule 45
REFEREE — Where the action has been tried before a referee, the applica-
tion must be made to a Special Term.] (Osborne v. Betts, 8 How. Prax;.
31 [Sp. T. 1853]; Howe v. Mtiir, 4 id. 252 tSp. T. 1850]; Sackett v. Bull,
Id. 712 [Sp. T. 1849].)
Referee's certificate — not sufScient unless facts be shovra to court.]
A referee's certifieate, " that the inTestigatioa and trial of the cause involTed
difficult questions of law, and which required and evidently received much
examiination and preparation on the part of the counsel of the respective
parties," is not such evidence as to authorize a court to make an additiwimi
allowance. Facts mnst be presented to the court so that it may form its own
opinion as to the nature of the case. (G'ould v. 'Cliapin, 4 Hotv. Prac. 185
[Sp. T. 1849] ; Main v. Pope, 16 id. 271 [Sp. T. 1858] ; Gori v. Smith, 6 Rob.
563.)
Additional allowance granted on the certificate of a referee.] The
defense interposed in an action to recover $19,354, for goods sold to defendants
and delivered to various customers of theirs at different times' and! in different
places, as directed by them, put in issue the sale and delivery of more than
300 items, proof of which was required and made, and the referee gave judg-
■ment for $200,000 in favor of plaintiff, and certified that the case was a
difficult and extraordinary one. Held, that an additional allowance of $500
•was proper. {National Lead Co. v. Dauchy, 22 Jlisc. Rep. 372 [1898]. )
APPEAL — To Court of Appeals.] An order granting an extra allowance
when it does not exceed the limits preserifeed by the Code is not reviewable
in the Court of Appeals. (Southwiek v. South wick, 49 X. T. 519 [1872];
Krekeler v. Ritter, 62 id. 375 i:i875].)
Does not lie from an order of the General Term, reversing an allowance
by a surrogate.] A decision of a surrogate gi-auting an allowance is the
subject of appeal to the General Terra on the merits (Lain v. Lain, 10 Paige,
191; Wilcox V. Smith, 26 Barb. 316), and may be reviewed by that court,
and if without justification on the facts and circumstances of the case, re-
versed entirely or modified and reduced, aad an order thereon resting in the
discretion of that court cannot be reviewed in tlie Court of Appeals. i(Noyes
V. Children's Aid Society, 70 N. Y. 481 11877].)
An order for an extra allowance affects a substantial right, and is
appealable to the General Term.] (People v. N. Y. C. R. R. Co., 29 N. Y.
418 [1864].)
Additional allowance — discretion of the trial court not disturbed.]
An additional allowance is made by way of indemnity to the successful party,
and the General Term will not ordinarily interfere with the discretion exer-
cised in granting it (Meyer Rubber Co. v. Lester Shoe Co., 86 Hun, 475
[1895]. See, also, Sheridan v. Interborough R. T. V-o., 101 App. Div. 534;
Schiff V. Tamor, 104 App. Div. 42.)
When Appellate Division cannot pass upon motion for extra allow-
ance.] The Appellate Division in which exceptions have been ordered heard
in the first instance cannot pass upon a motion for an extra allowance of costs,
as that question must be determined in the trial court before their taxation.
(Riverside Bank v. Jones, 75 App. Div. 531.)
Eule 47] Geneeal Eules of Peactice. 317
ETJLE 46.
Motion to Amend a Justice's Return on Appeal where the County Court can-
not Act — When to be Noticed.
On appeal from a justice's judgment, where a County Court
has not jurisdiction, by reason of relationship, etc., a notice of
motion for an order to compel the justice to amend his return
may be given in twenty days after the date of the certificate of
the county judge, and not after that time.
Rule 53 of 1S58. Rule 57 of 1871. Rule 57 of 1874. Rule 48 of 1877.
Eule 45 of I88G. Rule 45 of 1884. Rule 45 of 1888. Rule 46 of 1896.
CODE OF CIVIL PROCEDURE.
§ 3053. Return of justice of the peace on appeal from a judgment.
§ 3054. Return — when justice is out of office.
§ 3055. Further return — how compelled.
§ 3056. Proceedings when justice dies, etc., before making a return.
Facts stated in return of justice cannot be controverted by aflS.davit.]
(Thompson y. Sheridan, 80 Hun, 33.)
When writ will not issue.] (People v. Smith, 184 N. Y. 96)
An amended return is proper to show whether the justice attended
at the adjourned hour.] (Flint v. Gault, 15 Hun, 213.)
Order of county court directing amended return may be reviewed oa
appeal.] (Barber v. Stettheimer, 13 Hmi, 198.)
Section 3056 applies to appeal from Municipal Court.] (Walker t.
Baerman, 44 App. Div. 587.)
RULE 47.
Limitations as to Hearing of Counsel.
At the hearing of causes at the Appellate Division or at Special
Term, not more than one counsel shall be heard on each side, and
then not more than one hour each, except when the court shall
otherwise order.
On appeals from orders and on non-enumerated motions, but
one counsel on each side shall be heard, and not more than thirty
minutes each, unless the court shall otherwise order.
The Appellate Division in any department may make such
318 CouETS OF Eecoed. [Eule 48
further or different regulations upon tliese subjects as it may
deem proper.
Rule 54 of 1858. Rule 58 of 1871, amended. Rule 58 of 1874, amended.
Rule 49 of 1877. Rule 46 of 1880. Rule 46 of 1884. Rule 46 of 1888,
amended. Rule 47 of 1896.
See notes under Rule 29.
RULE 48.
Stay of Proceedings, for Change of Venue; Affidavits, on Motion to Change
Venue.
!N"o order to stay proceedings for the purpose of moving to
change the place of trial shall be granted unless it shall appear
from the papers that the defendant has used due diligence in
preparing the motion for the earliest practical day after issue
joined. Such order shall not stay the plaintiff from taking any
step, except subpoenaing witnesses for the trial, without a special
clause to that effect.
On motions to change the place of trial, the moving party shall
state the nature of the controversy and show how his witnesses
are material, and the grounds of his belief that the testimony of
such witnesses will be favorable to his contention, and shall also
show where the cause of action arose, and such facts shall be
taken into consideration by the court in fixing the place of trial.
Rule 58 of 1858. Rule 59 of 1871. Rule '59 of 1874, amended. Rule 50
of 1877. Rule 47 of 1880. Rule 47 of 1884. Rule 47 of 1888. Rule 59
of 1858. Rule 60 of 1871. Rule 60 of 1874, amended. Rule 51 of 1877.
Rule 48 of 1880. Rule 48 of 1884. Rule 48 of 1888. Rule 48 of 1896.
Rule 48 as amended, 1910.
See notes as to stay under Rule 37.
CODE OF CIVIL PROCEDURE.
§ 775. Stay of proceedings — when not to exceed twenty day«.
The following provisions are confined to cases in the Supreme Court:
§ 982. Certain actions to be tried where the subject thereof is situated.
§ 983. Other actions where the causes thereof arose.
§ 984. Other actions according to the residences of the parties.
§ 985'. Place of trial if the proper county be not designated.
§ 986. Defendant may demand change of place of trial — proceedings thereon.
§ '987. When the court may change the place of trial.
§ 988. Effect of changing the place of trial — transfer of papers.
Kule 48] Geneeal Eules of Peactice. 319
I 985. Order to change the place of trial — when it takes effect — except for
purposes of appeal thereform.
CHANGE OF VENUE — The established rules wiU not be relaxed.] The
established rules as to the contents of affidavits to be used on motions to
change the place of trial will not be relaxed. (Carpenter v. Continental Ins.
Co., 31 Hun, 78 [1883].)
— Rules must be strictly observed.] The defendants upon an application
to change the .place of trial for the convenience of witnesses must strictly
comply with the requirements of the decisions. (John T. Noye Mfg. Co. v.
Whitmore, 23 Wkly. Dig. 524 [Sup. Ct. 1885].)
The witness must swear to advice of counsel.] The afiBdavit for a
change of venue must state that the party is advised by counsel that he can- J
not safely proceed to trial without the testimony of each of the witnesses},
named A mere statement by the party that he cannot do ao is insufficient.
(Eanderson v. White Star Towing Co., 26 Misc. Rep. 305 [1899].)
Where neither party resides in the county of the venue.] Where a
plaintiff has laid the venue of an action in a county in which neither he nor
the defendant resides, he should not, by consenting to remove the place of trial
to his own county, be allowed to defeat an application by the defendant for
a change of venue to the county of the latter's residence. (Loretz v. Metro-
politan St. R. Co., 34 App. Div. 1 [1898].)
Affidavit should state facts to be proved by.] The affidavits should
show how the witnesses are material ; they should show distinctly what facts
are to be .proved by the several witnesses named, specifying them, so that the
court may judge of their materiality. (Price v. Fort Edward Water Works
Co., 16 How. Prac. 51 [Sp. T. 18S7].)
The affidavit should disclose the grounds of the witnesses' knowledge.]
A moving affidavit which alleges that defendant expects to prove certain facts
by the witnesses named, but fails to state that the facts can be proved by
them, and does not disclose grounds showing the probability thereof, is insuf-
ficient. (Lyman v. Grammercy Club, 28 App. Div. 30 [1898].)
The moving and opposing papers on such an application should dis-
close the occupation and residence by street and number of every person desig-
nated therein as a material witness, when such person resides in a city. (lb-)
What is a sufficient affidavit.] An affidavit used on a motion to
change the venue for the convenience of eight witnesses, which stated " that this
defendant has conversed with the several witnesses herein named, and each
and every witness has a vivid recollection of the different conversations had
between this defendant and plaintiff, at the times herein mentioned, and each
and every witness so named is prepared to give testimony on the trial of this
action as herein set forth, and the deponent avers that he can prove on the
trial of this cause all of the material facts as herein set forth by each of the
respective witnesses herein named," sufficiently shows that the defendant can
prove what he expected to by the witnesses. (Rheinstrom v. Weir, 5 App.
Div. 109 [1896].)
Affidavit, when informed and defective.] In an action brought in the
county of Monroe to recover damages for a personal injury alleged to have
320 CouETs OF Eecoed. [Eule 48
heen received by the plaintiff through the negligence of the defendants' servant
in running against him witli a coach and horses on a street in the city of
New York, the defendants moved to change the place of trial to the ooainty
of New York on the ground of the convenience of witnesses. The moving affi-
davit, made by one of the defendants, which was not aided by the pleadings,
failed! to allege -any statement of the facts to counsel or the advice of counsel,
and failed to show any reason for the belief of the affiant that the proposed
witnesses would testify as stated, or to disclose facts sufficient to enable the
court to ascertain therefrom that more than one of the proposed witnesses
residing in the county of New York were material and necessary witnesses.
Held, that the affidavit was too informal and defective to warrant the granting
of the motion. (Chapin v. Overin, 72 Hun, 514 [1893].)
To change the place of trial for convenience of witnesses — what the
( affidavit should contain.] Affidavit and notice to change venue for con-
j venience of witnesses should set out the grounds for the belief that the wit-
1 nesses are material. (ICelly v. Matham, 2 X. Y. Wkly. Dig. 173 [Sup. Ct.
1875].)
In partition suit.] If in a partition action defendant's witnesses are
many more than tiiose for the plaintiff, and all reside in the county where
the testator resided, but not in the same county where the venue is laid, a
motion may be granted changing the place of trial to the county in which
they reside; and the order of the court allowing this change of venue should
te sustained, unless it is apparent that this discretion has been misused, and
also although the property sought to be partitioned is almost within the
county where the venue is laid. (Nelson v. Nelson, 50 St. Rep. 446 [Sup. Ct.
[1892].)
In a replevin action.] In an action of replevin to recover goods sold
to defendant's transferrer, the sale being disaffirmed on the gronnd of fraud,
and the sale and transfer having been made in another county than that in
which suit was brought, a change of venue to the county where the trans-
actions took plax;e is properly granted. (Zenner v. Dexter, 92 Hun, 195
[1895].)
Assault — proof of condition after it.] ^Vhere, in an action for as-
sault, the defense is based upon an allegation that the assault was made by
plaintiff and not by defendant, the latter is entitled, upon motion, to a change
of venue for the convenience of witnesses, even if they can only testify in re-
gard to the condition of defendant after assault, that being material testimony.
(Banks v. Bensky, 27 St. Rep. 135 [Sup. Ct. 1S89].)
j AfEdavit should state what witness will prove.] The affidavit should
[ state what is expected to be proved by the several witnesses. (American Ex-
l change Bank v. Hill, 22 How. Prac. 29 [Sp. T. 1861] ; Price v. Fort Edward
Water Works Co., 16 id. 51 [Sp. T. 1857].)
Word " necessary " need not be used in the affidavit.] On an applica-
tion made by a defendant to change the place of trial, on the ground of the
convenience of witnesses, if the moving affidavit states that each and every
of the witnesses mentioned are material witnesses for the deponent on the
trial of the cause, and that without the testimony of each and every one of
Eule 48] Ges"eeal Euxes of Pbactice. 321
them the moving party cannot safely proceed to tria.1, as he is advised' by his
counsel and believes, he shows that the witnesses are necessary as well as I
material, although the word " necessary" is not used in the affidavit. (Smith
v. Mack, 70 Hun, 517 [1893].)
Affidavits failing to state names, residences and that witnesses would
testify are insufficient.] Affidavits in support of a motion to change the
venue which fail to state the names and residences of the witnesses, and that
they will testify to the facts alleged to be material to the defense, are insuffi-
cient. (Lyman v. Corey, 28 App. Div. G23 [1898].)
Affidavit must show material facts.] Upon a motion to change the
place of trial for the convenience of witnesses, an affidavit mu.st disclose
grounds which show that material facts can probably be proved by such wit-
nesses. (Tuska V. Wood', 30 N. Y. Supp. 523 [Sup. Ct. 1894].)
— —Expectations not sufficient.] An application for change of venue
should not be granted when the applicant simply states his expectations with-
out showing upon what they are based. (Imgard v. Duffy, 73 Hun, 255
11893].)
What statement of expectation in the affidavit is sufficient.] Wher-
ever, from an inspection of the papers upon a motion for a change of venue,
it appears that there is a reasonable ground for the expectation of the moving
party that he will be able to prove by the witnesses the facts stated, that is,
that the witnesses must necessarily know the facts, the court may fairly con-
clude in the exercise of its discretion that the statement of such expectation
is the equivalent of a positive statement of ability, even where the affidavits
of the witnesses are not produced on the motion. (Hayes v. Garson, 25 App.
Div. 115 [1898.])
Affidavit in third department need not state to what witnesses will
testify.] Upon a motion in the third department to change the venue for
the convenience of witnesses, it is not held absolutely necessary to state the
ground of affiant's expectation that the witnesses will testify to the facts to
which it is alleged they will testify, though a failure to do so may be con-
sidered in passing upon the merits of the motiora. (Bell v. Whitehead Bros.
Co., 5 App. Div. 555 [1896].)
What is an insufficient affidavit.] A motion by a defendant for a
change of venue must be made on a sufficient affidavit of merits; it is not
sufficient that he expects to prove certain things by his witnesses, instead of
stating that he can prove them. (Wliite v. Hall, 8 App. Div. 618 [1896].)
Third department — failure to allege grounds of expectation of testi-
mony.] Failure to allege the grounds of the defendant's expectations that
the witnesses named by him will testify to the facts stated, is not, in the third
department, a fatal defect in the papers upon which he moves for a change
of venue. (Siimit v. Cambridge Valley Agricultural Soc. & S. B. Assn., 27
App. Div. 318 [1898] ; McPhail v. Ridout, 83 Hun, 446 [1894].)
Information of the affiant, not disclosed.] It is not necessary that it
should be stated in the moving affidavit what information the affiant had,
21
32^2 CouETS OF Kecoeb. [Eule 48
which enabled him to state that the several .persons named as necessary wit-
nesses would testify to the facts as set forth in the aflfidavit. (Smith v.
Ma«k, 70 Hun, 517 [1893]; Myers v. Village of Lansingburgh, 54 id. 623
[1889].)
— Important to show their materiality.] Very little reliance can be
placed upon an allegation of the materiality of witnesses, unless it can be
shown wherein they are material. But the place of trial may be changed upon
such an, affidavit where no witnesses are sworn to reside in the county where
the venue is laid. (People v. Hayes, 7 How. Prac. 248 [®p. T. 1852].)
As to the materiality of the witnesses.] (Anonymous, 3 Wend. 425
[Sp. T. 1830]; Constantine v. Dunham, 9 id. 431 [Sp. T. 1832]; People v.
Hayes, 7 How. Prac. 248 [Sp. T. 1852].)
That the party cannot safely proceed to trial.] (Anonymous, 3 Wend.
425 [1830]; Constantine v. Dunham, 9 id. 431 [1832].)
That he has a defense upon the merits.] (Chemung Canal Bank v.
Bd. Supervisors, 1 How. Prac. 162 [Sp. T. 1845].)
That he has stated his case to his counsel.] (Lynch v. Mosher, 4
How. Prac. 86 [Sp. T. 1849].)
That he has stated to his counsel the facts that he expects to prove
by his witnesses.] (Dennison v. Seymovir, 9 Wend. 9 [1832].)
As to the names of the witnesses.] (Anonymous, 6 Cow. 389 [Sp.
T. 1826].)
Should be made by the defendant himself.] The affidavit to change
the venue for the convenience of witnesses should be made by the defendant
himself, except under peculiar circumstances. (4 Hill, 62, note [1842].)
Upon what facts motion granted.] Where the plaintiff does not swear
that any witnesses reside in the county where the venue is laid, but his affi-
davit tends to show that no real defense exists, and the defendant swears that
nineteen witnesses reside in another county, the motion should be granted.
(Wiggin V. Phelps, 10 Hun, 187 [1877].)
Upon what a decision will be based.] What principles will govern the
court in deciding with reference to a change of venue. (King v. Vanderbilt,
7 How. Prac. 385 [Circuit, 1862].)
Where a defendant moving to change place of trial shows that the
'contract was made to be performed in the county of his residence, where the
greater number of witnesses resided, while the plaintiff and a single witness
besides himself resided in the county where the venue was laid, the place of
trial should be changed. (Jacobson v. German American Button Co., 124
App. Div. 251; Lewis v. Phoenix Cap Co., 115 App. Div. 188.)
Where cause of action on contract arose wholly in the county of
New York, and all the witnesses reside in that county or in Kings, with the
exception of the plaintiff, who laid in the venue in Schenectady county, the
place of trial should be changed to one of the other counties. (Shapiro v.
Klar, 136 App. Div. 91.)
Where plaintiff in negligence action lays the venue in a county of
which he is not a resident, the defendant is entitled as a matter of right
to have the venue changed to the county of its residence irrespective of the
convenience of witnesses. (Lageza v. Chelsea Fibre Mills, 135 App. Div. 731.)
Eule 48] General Rules of Peactige. 323
Stay of proceedings.] Section 775 not applicable to stay for purposes
of motion for rearguanents (F. B. N. Co. v. Mackey, 158 N. Y. 683), or to
order extending time to amend answer (Clondon v. Church of St. Augustine,
14 Misc. Rep. 181).
CONVENIENCE OF WITNESSES — The greatest number of witnesses.]
How far the court will decide in favor of the party who swears to the
greatest number of witnesses. (Sherwood v. Steele, 12 Wend. 294 [Sp. T.
1835] ; Austin v. Hinckley, 13 How. Prao. 576 [Sp. T. 1856] ; Wood v. Bishop,
5 Cow. 414 [Sp. T. 1826]; Benedict v. Hibbard, 5 Hill, 509 [Sp. T. 1843];
Weed V. Halliday, 1 How. Prac. 73 [Sp. T. 1845].)
Seventy-eight witnesses — regarded as a fraud.] Where the defendant
swore to seventy-eight witnesses that were material to his defense in an action
of assiunpsit, it was regarded by the court as a fraud, and the motion was
denied. (Garbutt v. Bradner, 1 How. Prac. 122 [Sp. T. 1845]. See Wallace
V. Bond, 4 Hill, 556 [Sp. T. 1842].)
In the county where the witnesses reside — independent of their dis-
tance from courthouse.] The trial should be had in the county where the
witnesses reside, even though they may be required to travel a greater dis-
tance than to the courthouse in an adjoining county in attending court.
(People V. Wright, 5 How. Prac. 23 [Sp. T. 1850] ; Hull v. Hull, 1 Hill, 671
[1841]; Beardsley v. Dickinson, 4 How. Prac. 81 [Sp. T. 1848].)
Convenience of resident witnesses alone considered.] The convenience
of resident witnesses will alone be considered in deciding the motion to change
the venue. (Rathbone v. Harman, 4 Wend. 208 [1830]; Williams v. Fellows,
9 id. 451 [1832]; Hull v. Hull, 1 Hill, 671 [1841].)
Witness outside the State — not considered.] The convenience of
witnesses who reside outside of the State will not be considered upoa a motion
to change the venue. (Bowles v. Rome, Watertown, etc., R. R. Co., 38 Hun,
507 [1886].)
; That it will inconvenience the plaintiff, not considered.] Where a
change of venue of an action to the county where the cause of action arose
will promote the convenience of witnesses, the fact that such change will
involve inconvenience to the plaintiff does not operate to prevent it. (Hedges
V. Bemis, 38 App. Div. 349 [1899].)
Residence of those acquainted with facts considered before that of
experts.] An order made in an action on the defendant's motion changing
the venue from New York to Hamilton county for the convenience of witnesses,
should be reversed where it appears that though he is a resident of the latter
county, he has an office in New York and that the witnesses whose convenience
he seeks to serve are expert ■witnesses by whom he " expects to prove " the
value of lands upon which the mortgages in question are a lien and that all
the other witnesses acquainted with the particular facts of the case reside
in New York. (Bushnell v. Durant, 83 Hun, 32 [1894].)
Venue not retained for convenience of expert witnesses.] The conven-
ience of expert witnesses is not to be consulted in fixing the place Of trial.
(Adriance, Piatt & Co. v. Coon, 15 App. Div. 92 [1897].)
324 CouETS OF Eecoed. [Kule 48
Convenience of witnesses where a village is defendant.] In an action
against a village brought by the widow of an attorney to recover for legal
services as his administratrix, the complaint alleged, among other things, the
advising with village tnastees, and consulting and advising with officers of the
defendant in the matter of the construction of a system of water works for
the defendant village. Held, that the convenience of witnesses would be sub-
served by changing the place of trial to the county in which the village was
situated. (Harrington v. Village of Warsaw, 4 App. Div. 181 [1896].)
Where the proper venue for convenience of witnesses is doubtful the
place where the action arose may control.] Wbeu it is uncertain in which
county a transitory action should be tried for the convenience of witnesses,
the venue should be changed to the county where the cause of action arose,
though it be originally laid in the county of plaintiff's residence and the
county to which it is removed is not that of the defendant's residence. (Haus-
mann v. Moore, 7 App. Div. 459 [1896].)
Venue not changed from Westchester to New York county for the
convenience of witnesses.] The venue will not be changed from Westchester
to New York county upon the ground of convenience of witnesses. (Brink v.
Home Ins. Co., 2 App. Div. 122 [1896].)
Nor from any rural county to New York or Kings. (Quinn v. B. H. E.
Co., 88 App. Div. 57; Hirschkind v. Mayer, 91 App. Div. 416.)
Westchester county — portion annexed to New York.] The portion of
Westchester county annexed to the city and county of New York by Laws
IStJS, chaper 934, still continues to be a part of Westchester county for the
purpose of determining the venue of an action under the Code of Civil Pro-
cedure, section 984. (Zeimer v. Eafferty, 18 App. Div. 397 [1897].)
Change of venue from Queens to New York county — when granted.]
While the 'place iof trial will not be changed from Queens county to the county
of New York, merely to suit the convenience of witnesses, yet where the cause
of action arose in the latter county, and both plaintiff and defendant reside
there, a change of venue is proper. (Navratil v. Bohm, 26 App. Div. 460
[1898].)
Change to New York county from a rural county.] The rule that
the trial of an action will not be transferred from a rural county to the city
of New York, if such rule exists, does not apply to a motion to change the
place of trial from Erie county to the county of New York. (Osterhout v.
Eabe, 39 App. Div. 413 [1899].)
When venue changed from Rensselaer to Alhany county.] Venue
changed from Rensselaer county to Albany county, in Which the cause of action
arose, and a majority of the witnesses resided. (Fielding v. Cohoes Masonic
Temple Assn., 23 Misc. Rep. 52 [1898].)
Changing venue for convenience of witnesses in action for malicious
prosecution.] -The court may, under the Code of Civil Procedure (§ 987), for
the convenience of witnesses, change the place of trial of an action for mali-
cious ^prosecution to a county in which neither party resides. (Herbert v.
Griffith, 2 App. Div. 566 [1896].)
Eule 48] Geneeal Eules of Practice. 325
—— Place decided by the number of witnesses.] When it appears from the
moving papers that defendant's witnesses outnumber those of the plaintiff,
his motion for a change of venue sliould be granted, and it is not a sufficient
ground for denial that a promise be given that the witnesses will be examined
before a referee in the county in which they reside, but where the necessary
witnesses are the same in number on both sides the trial should be had in
the county in which the subject-matter of the action is located. (Belding v.
Ladd, 27 St. Eep. 296 [Sup. Ct. 1889].)
Venue where defendant's witnesses are more numerous.] An action
for the conversion of moulding sand taken in Saratoga county and shipped
away by the defendant, who claimed to have owned the sand, all of defendant's
witnesses residing in Saratoga county, and only a part of plaintiff's in Greene
county, where the venue was laid, held, to be properly removed for trial to
Saratoga county. (Bell v. Whitehead Bros. Co., .5 App. Div. 555 [1896].)
Conflicting applications.] The defendant is entitled to a change of
venue when proper, although the plaintiff has made an independent motion to
retain the place of trial for the convenience of witnesses. (Stimson v. Stim-
son, 29 St. Eep. 21 [Sup. Ct. 1890].)
What may be shown in the opposing affidavits.] As to what the
plaintiff may show in his opposing affidavit. ( See Gilbert v. Chapman, 1 How.
Prac. 54 [Sp. T. 1844] ; Spencer v. Hurlburt, 2 Caines, 374 [Sp. T. 1805] ;
Anon., 7 Cow. 102 [Sp. T. 1827] ; Onondaga Co. Bank v. Shepherd, 19 Wend.
10 [1837]; Sherwood v. Steele, 12 Wend. 294 [1835].)
Change of venue to county plaintiff's residence on defendant's motion
that it be changed to the defendant's county.] Where an action is brought
in a county in which neither of the parties reside, it is improper for the court,
on motion of the defendant to change the venue to the county in which he
resides, to change it to the county of plaintiff's residence. (Loretz v. Metro-
politan St. R. R. Co., 34 App. Div. 1 [1898].)
Opposing affidavit — when insufficient.] An affidavit in opposition to
a motion for change of venue, which merely states the party's belief as to
the materiality of his witnesses, but does not aver that he has stated the facts
to counsel, or been advised by him on that subject, is insufficient. (Sinnit v.
Cambridge Valley Agricultural Society & Stock Breeders' Assn., 27 Misc. Eep.
586 [1899].)
Where all the defendants do not join in the motion the reason must
appear.] Where a motion to change the place of trial for the convenience
of witnesses was made by two of four defendants, held, that it should be denied
in the absence of evidence as to why the other defendants had not united in
the application. (Bergman v. Noble, 10 Civ. Proc. R. 190 [Sup. Ct. 1886] ;
Welling v. Sweet, 1 How. Prac. 156 [Sp. T. 1845]; Lyman v. Grameroy Club,
28 App. Div. 30 [1898].)
Motion should be on notice to all the parties.] An action brought
by a citizen of the State to cancel a grant of a right of way by the Forest Com-
mission, should, in accordance with Code of Civil Procedure (§ 982), be tried
in the county where the lands in question are situated ; but a motion made to
change the venue to such eounty should be made upon due notice to all the
parties to the action. (Sherman v. Adirondack Ey. Co., 92 Hun, 39 [1895].)
32'6 CouETS OF Eecoed. [Kule 48
Notice to other defendants.] As to notice to the other defendants,
where a motion is made by only one of several defendants. (See Chace v.
Benham, 12 Wend. 200 [1834]; Welling v. Sweet, 1 How. Prao. 156 [Sp. T.
1845].)
No di:]tinction between actions ex contractu and ex delicto.] In re-
gard to motions to change the place of trial there is no distinction between
actions ex contractu and actions ex delicto. (Sailly v. Hutton, 6 Wend. 508
[1830].)
Motion "to change the venue, or place of trial," good.] A notice of
motion in the alternative, " to change the venue or place of trial," is sufficient.
(Hinohman v. Butler, 7 How. Prac. 462 [Sp. T. 1852].)
By whom to be made.] By whom the motion to change the venue
should be made. (Mairs v. Remsen, 3 C. E. 138 [Sp. T. 1850]; Legg v. Dor-
sheim, 19 Wend. 700 [1839].)
The venue can only be changed in the cases specified.] The place of
trial in the Supreme Court can only be changed in the cases specified in the
statute. (Birmingham Iron Foundry v. Hatfield, 43 N. Y. 224 [1870].)
Practice as to motions to change to proper county, and to change for
the convenience of witnesses.] The right of the defendant to have a cause
moved to the proper county cannot be met by affidavits as to the convenience
of witnesses. If the convenience of witnesses requires that the trial be had
in a particular county, a separate motion upon such grounds must be made.
(Veeder v. Baker, 83 Jv^ Y. 156 [1880] ; Gifford v. Town of Gravesend, 8 Abb.
N. C. 246.)
When motion may be made.] When the place of trial of an action is
not laid in the proper county, the defendant, under the provision of the Code
of Civil Procedure ( § 986 ) , which requires a demand for trial in the proper
county to be served with or before service of the answer, retains the right
to insist that the trial shall be so had until he has finally defined the issues to
be tried, and, therefore, v/hen he avails himself of the right to serve an
amended answer, a demand that the trial be had in the proper county served
with the amended answer is sufficient. (Penniman v. Fuller &, Warren Co.,
133 X. W. 442.)
When premature.] It is premature to make a motion to change the
place of trial for convenience of witnesses, where a demurrer is interposed to
the merits of the defense. (Moore v. Pillsbury, 43 How. Prac. 142 [Sp. T.
1872].)
Appearance and demand, when necessary.] An appearance and demand
are necessary before a motion can be made, on the ground that the action was
not brought in the proper county. (Van Dyke v. JIcQuade, 18 Hun, 376
[1879].)
Demand for change not necessary.] It is not necessary, before making
a .motion to change the venue for the convenience of witnesses, to make a de-
mand in writing to have the trial in the proper county. (Hinchman v. Butler,
7 How. Prac. 462 [Sp. T. 1862].)
Denied if made for delay.] The motion will be denied where it ap-
appears that it is made for the purpose of delay. (Kilbourn v. Fairohild, 12
Eule 48] Geneeal Eules of Peactice. 327
Wend. 29 [1835]; Haywood v. Thayer, 10 id. 571 [1833]; Garlock v. Dunkle,
22 id. 615 [1840].)
That plaintiff will lose a term, not ground for denial.] The fact that
the plaintiff will lose a term by reason of a change of venue, where the de-
fendant is not guilty of laches, is no reason for refusing such change. (Gar-
lock V. Dunkle, 22 Wend. 615 [1840].)
When a change will delay the trial.] When it is apparent that a
change of venue will delay the trial of a case, and that it will not be for the
convenience of plaintiff's witnesses, they being in the majority, defendant's
motion to change the place of trial should not be granted. (Fowler v. Third
Ave. R. E. Co., 29 St. Rep. 285 [Sup. Ct. 1890].)
In an action for unlawful arrest.] Where it appears that all the
material witnesses reside in the county where the cause of action arose, venue
will be changed to that county. (Archer v. Mcllravy, 86 App. Div. 512
[1903].)
Place of trial, New York county, after annexation.] (Haukins v.
Pelham, etc., Co., 158 N. Y. 417.)
As to cities of the second class.] (See Czarnowski v. City of Rochester,
55 App. Div. 388.)
Notice to codefendant who has not appeared — when not required.]
(North Shore Indust. Co. v. Randall, 108 App. Div. 232.)
Proper place of trial.] (See Miles & Gibb v. Starin, 119 App. Div.
336; Chappel v. Chappel, 125 App. Div. 127; Veeder v. Baker, 83 N. Y. 15G;
Conley v. Carney, 126 App. Div. 337.)
Court cannot of its own motion change place of trial of transitory
action.] (Phillips v. Tietien, 108 App. Div. 9.)
Demand for change of place of trial may be served with amended |
answer.] (Peniman v. F. & W. Co., 133 N. Y. 442. Harman v. Van Ness, /
58 App. Div. 160.) |
Change of venue to proper county, one of right.] (Sheperd v. Squire,'
76 Hun, 598. See, also. Carpenter v. Cont. Ins. Co., 31 Hnn, 78; Nat. Com.
Co. V. H. R. W. Co., 63 App. Div. 613.)
Foreign corporation cannot become resident of this State.] (Shepard
& Morse Lumber Co. v. Hurleigh, 27 App. Div. .101.)
Action against railroad company may be brought in county where
road is operated, although plaintiff did not live there, and principal ofiSce
of company was in another county.] (Poland v. United States Trac. Co.,
88 App. Div. 281; afTd., 177 N. Y. 557.)
Term residence discussed.] (Washington v. Thomas, 103 App. Div.
423.)
PLEADINGS AS FIXING THE VENUE — Variance as to venue between
the summons and complaint.] The mere inadvertence of an attorney in
naming a different place of trial in the complaint from that mentioned in the
summons will not effect a change of the venne if he move promptly to correct
it. (Fisher v. Ogden, 12 App. Div. 602 [1897].)
The complaint controls.] Where the place of trial designated in the
complaint varies from that in the summons the former controls; and where
328 Courts of Recoed. [Rule 4-8
the cause is placed on the calendar of the county mentioned in the summons
only, it may be struck therefrom on defendant's motion if the complaint refers
to a different place of trial. (/&.)
NOTICE OF TRIAL — Effect of.] A party by noticing a case for trial at
a certain term and then appearing and securing a continuance, waives his
right to subsequently move for a change of venue. (Coleman v. Hayner, 92
App. Div. 575.)
PLACE — place of transaction.] The trial should be had in the county
where the principal transaction between the parties occurred, and where it
appears that the largest number of the Tvitnesses, acquainted vrith the facts,
reside. A majority of witnesses should not necessarily control. (Jordan v.
Garrison, 6 How. Prae. 6 [Sp. T. 1S51] ,• Goodrich v. Vandexbilt, 7 id. 467 [Sp.
T. 1852].)
County in which the transaction took place favored.] On a motion
made to change the place of trial of an action, it is proper for the Special
Term to give weight to the circumstance that the cause of action arose in the
county to which the venue is sought to be changed and that the principal
transactions involved in the decision of fact took place in such county.
(Payne v. Eureka Elec. Co., 88 Hun, 250 [1895].)
When the venue will be changed to the place of the transaction.] An
order changing the venue of an action .should be granted when it is apparent
that the cause of action arose in the county to which it is sought to remove
the action, and when it is also shown by the af&davits that it would be for the
convenience of a majority of the necessary witnesses to have the place of trial
changed. (Lyon v. Davis, 27 St. Eep. 517 [Sup. Ct. 1889].)
The place of trial may be fixed by stipulation.] Where the parties to
a contract so stipulate therein the place of trial in any litigation arising
under it must be that named in the contract. (Greve v. JEtna, Live Stock
Ins. Co., 81 Hun, 28 [1894].)
Where the preponderance of witnesses are in the county of the trans-
action.] The place of trial should be changed for the convenience of wit-
nesses to the county in which the cause of action originated, where there is
apparently a preponderance of witnesses residing in such county. (Kubiac v.
Clement, 35 App. Div. 186 [1898].)
When the place of the transaction determines the venue.] An order
should direct that the venue be laid in the county in which the subject-matter
of the action is located, when upon motion to change the place of trial for
the convenience of witnesses the affidavits do not agree. (Maynard v. Chase,
30 St. Eep. 348 [Sup. Ct. 1890].)
It controls where the number of witnesses is the same.] WTiere the
number of witnesses on each side is the same, the place of transaction will
control in deciding a motion for change of venue. ( Osterhout v. Babe 39 App.
Div. 413 [1899].)
Where the transactions occurted in two counties.] One Osbom, a
resident of Westchester county, assigned a crop of growing tobacco to one
Stephens as security for a debt, and afterward sold snch crop and applied the
proceeds to his own use. Stephens, after the sale, agreed to loan the proceeds
Eule 48] Gekeeal Edles of Peagtice. 329
thereof to Osbom's wife on her note for four months, and did so. The note
was not paid, and Osborn vi;as arrested upon a criminal charge of larceny in
Westchester coimty, and taken to Tompkins county, where he was discharged.
In an action brought by Osborn against Stephens for malicious prosecution
the yenue was laid in Westchester county.
Held, that it could not be said that the place of the transaction was entirely
in Tompkins county, and that an order changing the place of trial to Tomp-
kins county for the convenience of witnesses should be reversed. (Osborn v.
Stephens, 74 Hun, 91 [1893].)
Convenience of witness preferred to place of contract.] Even if the
contract in question was made in the county in which an action is brouglit,
defendant's motion to change the venue should be granted if it is apparent
that such change would be more convenient for the witnesses. (Perry v.
Boomhouer, 43 St. Rep. 375 [Sup. Ct. 1892].)
Other considerations besides convenience of witnesses.] Upon the
decision of a motion to change the place of trial of an action for the con-
venience of witnesses, there are other controlling considerations to be taken
into account besides the number of the necessary witnesses of the parties.
(Tuthill V. Long Island R. R. O., 75 Hun, 556 [1894]; Payne v. Eureka
Electric Co., 88 id. 250 [1895].)
Fair and impartial trial — what proof that it cannot be had required.]
When an accused person applies to change the place of trial he must make a
clear case that, by reason of popular passion or prejudice, he cannot have a
fair and impartial trial in the county where the venue is laid. Affidavits
stating the belief of persons that a fair trial cannot be had are not sufficient.
Facts and circumstances must be stated. (People v. Sammis, 3 Hun, 560
[1875].)
Proof required as to an impartial trial being impossible.] Defendant's
motion to change ;the place of trial should not be denied because the plaintiff,
in order to i^etain the venue, claims that a trial cannot fairly and impartially
be had in the county to which defendant has applied to remove the action,
when it is not positively shown from plaintiff's affidavit why an impartial
trial cannot there be had. (People v. 'Snaith, 8 N. Y. Supp. 668 [Sup. Ct.
1899].)
When a matter of right.] The application for a change of the place
of trial of an action from the county in which the action was brought,
wherein none of the parties thereto resided, to the proper county, if the
demand for the change of the place of trial be served in time, is one of
right. (Ganz v. Edison Electric Illuminating Co., 79 Hun, 409 [1894].)
When it should be changed upon demand.] An action must be tried in
the county in which one of the parties resided at the time of the commence-
ment thereof, and where the summons in an action designated the county
of Mom'oe, in which none of the parties resided, as the place of trial, and two
of the platatiffa resided in the county of Herkimer, the place of trial should
be changed from the county of Monroe to the county of Herkimer, upon
proper demand, and the fact that the defendants were nonresidents of the
State does not deny to them the benefit of the statute providing for the
330 CouETS OF Eecoed. [Rule 48
change of the place of trial of the action to a proper coimty. (Shepard v.
Squire, 76 Hun, 598 [1894].)
When court, on motion to change for convenience of witnesses, cannot
change because improper county is named.] On a motion to change the place
of trial for the convenience of witnesses, a court cannot order a change for
the reason that the proper county is not designated in the summons, where
no pervious demand to have such change has been made. (Couch v. Lasher,
17 How. Prac. 520 [Gen! T. 1859].)
Demand to change not defeated by a stipulation.] Place of trial of an
action to set aside as fraudulent a general assignment covering real estate.
The right to demand a change of venue cannot be defeated by an offer by
the plaintiff to stipulate not to attempt to reach tlie real estate. (Vi'yatt v.
Brooks, 42 Hun, 502 [Gen. T. 1886]; Smith v. Averill, 1 Barb. 28 [Sp. T.
1847]. Offer to pay expenses of witnesses. (Worthy v. Gilbert, 4 Johns.
492 [Sp. T. 1809]; Eathbone v. Harman, 4 Wend. 208 [Sp. T. 1830].)
Stipulation as to evidence.] How far a change will be prevented by
a stipulation to give no evidence, except of matters occurring in the county
where the venue is laid. (Smith v. Averill, 1 Barb. 28 [Sp. T. 1847].)
A stipulation that witnesses would swear as stated not accepted.]
Upon appeal from an order which denied a motion for change of venue, the
appellant having shown that all the transactions in question took place and
all the witnesses resided in the county to which it was desired to change
the place of trial, it was held that the order should be reversed and that a
stipulation stating that witnesses would testify as the moving papers alleged
they would could not be substituted for their presence and testimony.
(AVright V. Burritt, 45 St. Pep. 9 [Sup. Ct. 1892].)
A stipulation as to the date of issue — it does not bar a change of
venue.] A stipulation, given by the defendant on obtaining an extension of
time to answer that the date of issue should be that on which service of the
answer was due, does not prevent the defendant obtaining a change of venue.
(Perkins v. Commercial Advertiser Assn., 89 Hun, 24 [1895].)
Offer to pay expense of adversary's witnesses.] How far the plaintiff
will be allowed to retain the venue, where he offers to pay the expenses of
bringing the defendant's witnesses to that county, considered. (Worthy v.
Gilbert, 4 Johns. 492 [Sp. T. 1809]; Eathbone v. Harman, 4 Wend. 208 [Sp.
T. 1830].)
Stipulation that the witnesses will testify to the facts claimed.] A
motion to change the venue on the ground of convenience of witnesses should
not be denied because the opposing party stipulates that the witnesses named
will testify to the facts claimed, as the stipulations, to be available for that
purpose, must be to the effect that the facts sought to be established will be
admitted on the trial. (Ingal v. Stoddard, 35 App. Div. 539 [189S].)
Changed on condition that certain testimony be taken by deposition.]
In an action brought in New York county to recover damages for the con-
version of personal property alleged to have belonged to a decedent, residing
in Clinton county at the time of his death, where all the transactions out of
which the alleged cause of action arose occurred in Clinton county, a motion
Eule 48] General Eules oe Peaotice. 331
was made by the defendant to change the place of trial to Clinton county on
the ground of the convenience of witnesses. The plaintiff swore to six
material witnesses residing in New York city, and the motion was denied.
Held, that the defendant made out a case for a change of venue from
New York to Clinton county;
That the motion should have been granted upon condition that the defend-
ant stipulated that the evidence of the witnesses residing in New York city
be taken (if the plaintiff so elected) by deposition. (Dunham v. Parmenter,
74 Hun, 559 [1893].)
Demand to change venue must accompany the answer — effect of de-
fault in serving an answer.] Demand to change place of trial must accom-
pany the answer under the Code of Civil Procedure, section 986, and the
answer be served in time; and if a default be made in answering and be
opened this does not retire the party in default in which he can insist on the
change as a legal right. (Spaulding v. American Wood Board Co., 5 App.
Div. 621 [1896].)
May be changed to promote ends of justice.] But this is in the dis-
cretion of the court. (Kavanaugh v. Mercantile Trust Co., 94 App. Div. 575.)
GAME LAWS — Venue of action brought under the game laws.] Sec-
tion 983 of the Code of Civil Procedure, providing that actions to recover a
penalty or forfeiture imposed by statute must be brought in the county
where the cause of action or some part thereof arose, has no application to
actions brought under chap. 534 of the Laws of 1879 to recover penalties for
violations of the game laws, which may be brought in the county where the
penalty was incurred or in an adjoining cormty. (Leonard v. Ehrich, 40
Hun, 460 [1886].)
EXCISE LAW — Power of Supreme Court to change the venue is not
divested thereby.] The provisions of the Liquor Tax Law, authorizing the
State commissioner to maintain an action in any court of record, in any
county, for the recovery of the penalty for the breach of any condition of
any bond, do not divest the Supreme Court of the power to change the place
of trial, and such power may be exercised for the convenience of witnesses.
(Lyman v. Gramercy Club, 28 App. Div. 30 [1898].)
LACHES — Motion must be made with diligence.] A motion to change
the place of trial for any reason must be made with reasonable diligence after
issue has been joined in the action. (Darragh v. McKim, 2 Hun, 337 [1874] ;
Haines v. Reynolds, 97 App. Div. 19.)
Limit of time to move.] Section 980 of the Code of Civil Procedure
limits defendant's time to move for a change of venue to the proper county,
even when the answer is stricken out as frivoilous, and upon appeal the order
is reversed. (Taylor v. Smith, 32 St. Rep. 843 [Sup. Ct 1890].)
Removal of a cause from a local court to the Supreme Court.] After
the lapse of seven years from the joining of issue, it is too late to change the
place of trial from a local court to the Supreme Court for the convenience of
witnesses. (Quinn v. Van Pelt, 12 Hun, 633 [-1878].)
When denied for laches.] Where a motion was made, over one year
after the joining of issue in an action, to change the place of trial thereof
333 Courts of Record. [Eule 48
for the convenience of witnesses, the defendant is chargeable with laches, and
the motion is properly denied, and the fact that a whole year was consumed
in fruitless attempts to change the venue upon other groundls is no excuse
for the delay in making such motion. (Becker v. The Town of Cherry Creek,
77 Hun, 11 [1894].)
The motion need not be made within ten days after a failure to con-
sent.] A motion to change the place of trial on the ground of convenience
of witnesses need not be made within ten days after .failure to consent thereto,
as laid down in section 986 of the Code. (Kubiac v. Clement, 35 App. Div.
186 [1898].)
A motion is too late after a stipulation fixing the time of trial.] After
a defendant, as a condition of postponement, has stipulated to try the cause
at a specified term, it is too late to moive for a change of venue. (Rodie v.
Verdon, 22 Msc. Rep. 409 [1898].)
WAIVER — Stipulating to accept short notice of trial is a waiver of objec-
tions to the venue.] A defendant by giving a stipulation, upon receiving an
extension lof time, that he will take short notice of trial for a certain circuit
in the county in which the action was brought, waives the objection that the
action had not been brought in the proper county. (Haiz v. Starin, 1 St.
Rep. 553 [Sup. Ct. 1886].)
RESIDENCE — By street and number and occupation should be stated.]
The moving papers on a motion for a change of venue should, where the
material witnesses are residents of a city, show their residence by street and
number and also their occupations. (Dean v. Cunningham, 27 Misc. Rep. 31
[1899].)
Wot necessary to state, other than county.] ^ATiere the affidavit states
the county in which the witnesses reside, it is sufficient. It is unnecessary to
specify the city, town or village. (Bleecker v. Smith, 37 How. Prac. 28 [Sp.
T. 18&9].)
County of residence — decision.] The motion to change the venue will
be decided by the county in which the witnesses reside, and not by the dis-
tances they will have to travel in order to come to the place of trial. (Hull
V. Hull, 1 Hill, 671 [1841] ; People v. Wright, 5 How. Prac. 23 [Sp. T. 1850];
Beardsley v. Bickinaon, 4 id. 81 [Sp. T. 1848].)
Residence in adjoining State.] The residence of a large number of wit-
nesses, in an adjoining State is not a ground for retaining the place of trial
in an adjacent county. (Peet v. Billings 2 Wend. 282 [1829]; Bank of St.
Albans v. Knickerbocker, 6 id. 541 [1831].)
Meaning of " resided " in section 984 of the Code of Civil Procedure.]
The word resides means a permanent residence, one's home, as distinguished
from a mere stopping place. It is nearly synonymous with " domicile."
(Washington v. Thomas, 103 App. Div. 423.)
MOTION — Where made.] A motion to change the place of trial for the
convenience lof witnesses should be made in the judicial district designated in
the complaint, or in a county adjoining it. (Bangs v. Selden, 13 How. Prac.
163 [Sp. T. 1850]; Askins v. Hearns, 3 Abb. 184.)
EiUe 49] General Eules of Psactige. 333
CHANGED VENUE — Proper place to move to open a default.] Where
the place of trial of an action brought by a judgment-creditor of a corporation
to sequestrate its property was changed by order to another county, in whicli
was its legal residence, a motion to open a default taken in the former county
is properly made in the county to which venue had been removed. (CroU v.
Empire State Knitting Co., 17 App. Div. 282 [1897].)
AMENDED COMPLAINT — Place of trial cannot be changed in an amended
complaint.] The summons and complaint designated Albany county as the
place for trial, in which neither party resided. Defendant demanded that the
place of trial he changed to Kings county, where it had its principa,l place of
business. PlaintiflF thereupon served an amended complaint, designating Rens-
selaer county, where he resided, as the place of trial. Held, that as the com-
plaint could only be amended without prejudice to the proceedings already had,
the amendment could not defeat defendant's application, which should be
granted. (Rector v. Ridgewood Ice Company, 38 Hun, 293 [1885].)
An amendment of pleading — changing place of trial — pending motion
therefor.] An amendment of pleadings, of course, changing the place of trial,
prevents the hearing in the original county of a pending motion to change
the place of trial, on the ground that a fair and impartial trial cannot be had
there, but the motion may be made in the county designated by the amendment.
(Moulton V. Beeeher, 1 Abb. N. C. 193, 237 [Sup. Ct. 1876].)
APPEAL — Order changing venue — appealability of, to General Term.]
An order vacating an order of reference, and changing the place of trial,
affects a substantial right, and is appealable to the General Term. The appeal
is properly brought in the department in which the motion is made. (Hoflfman
V. Sparling, 12 Hun, 83 [1877]; Code of Civil Procedure, § 989; contra, Kel-
logg V. Smith, 7 Hun, 551 [1876] ; McDonald v. McDonald, 14 id. 490 [1878].)
Decision of Special Term not disturbed on appeal.] The exercise of
the discretion vested in the Special Term to change the place of trial of an
action for the convenience of witnesses will not be disturbed upon appeal
unless it clearly appears that such discretion was exercised improperly.
(Payne V. Eureka Elec. Co., 88 Hun, 250 [1895].)
Review of exercise of discretion on appeal.] Where the Special Term,
in the exercise of its discretion grants a change of venue, it will not be inter-
fered with unless it is clearly evident that the discretion was improperly exer-
cised. (Payne v. Eureka Electric Co., 88 Hun, 250 [1895].)
It is a matter largely in the discretion of the Special Term.] Motions
to change the place of trial for the convenience of witnesses, are largely in the
discretion of the Special Term, and its determination of such motions will not
be reversed on appeal, unless it clearly appears that there was an abuse of that
discretion, or that the court erred in coming to the conclusion it did. (Mc-
Conihe v. Palmer, 75 Hra, 116 [1894].)
KULE 49.
Guardians ad Litem, Who to be.
No person shall be appointed guardian ad litem, either on the
application of the infant or otherwise, unless he be the general
334 Courts of Eecoed. [Eule 49
guardian of such infant, or is fully competent to understand and
protect the rights of the infant, and has no interest adverse to
that of the infant, and is not connected in business with the at-
torney or counsel of the adverse party. And no person shall be
appointed such guardian vi^ho is not of sufficient ability to answer
to the infant for any damage which may be sustained by his
negligence or misconduct in the defense or prosecution of the
suit, and such ability shall be shown by affidavit stating facts in
respect thereto. And no person shall be appointed guardian ad
litem who is nominated by the adverse party.
Rule 59 of 1858, amended. Rule 61 of 1871. Rule 61 of 1874, amended.
Eule 52 of 1877. Rule 49 of 1880. Rule 49 of 1884, amended. Rule 49 of
1888. Rule 49 of 1896.
CODE OF CIVIL PROCEDURE.
§ 428. Special guardian ad litem appointed for a defendant who is an infant,
a lunatic, drunkard, etc.
% 46'9. A guardian ad litem must be appointed for an infant plaintiff before
the summons is issued.
% 470. Application for the appointment of a guardian ad litem for infant
plaintiff — notice to general guardian or person with "whom infant
resides.
§ 471. Application for the appointment of a guardian ad litem for infant
defendant — notice to general guardian of infant or person with
whom he resides.
§ 472. Guardian, how appointed a consent necessary — clerk, when to act.
§ 473. Appointment of guardian ad litem for absent infant defendant.
§ 474. Guardian ad litem, not to receive property until security is given.
§ 475. What security required.
§ 476. The last two sections not applicable to general guardian who has been
appointed guardian ad litem- — additional security may be required
of him.
§ 477. Guardian ad litem for infant defendant not liable for costs — unless
charged therewith by the court.
§ 1535. Of infant, in an action for partition.
§' 1536. Bond required of a guardian in partition.
§ 1679. G'uardian of an infant party cannot purchase at a sale — exception.
§ 1820. Guardian ad litem in an infant's action for a legacy.
§ 2352. On application to sell, etc., infant's real estate.
§ 2509. Surrogate's clerk, or other person employed in surrogate's oflSoe not
to act as guardian in that court.
§ 2527. When appointed in Surrogate's Court for persons incompetent to
protect their rights.
§ 3249. Of plaintiff — liability of, for costs.
Eule 49] Geneeal Eules of Peactice. 335
§ 3251. Costs for procuring appointment of.
§ 3363. Guardian ad litem for infant or incompetent party to a condemna-
tion proceeding.
GUARDIAN AD LITEM — For plaintiff need not be his general guardian.]
That part of Rule 53 of 1854, requiring the guardian ad litem " to be the gen-
eral guardian, or an attorney or other officer of the court," does not apply to
a guardian for the plaintiff. (Cook v. Rawdon, 6 How. Prac. 23 [Sp. T.
1851].)
Appointment in violation of the rule.] An appointment in violation of
Kule No. 49 of the Supreme Court will be set aside on the motion of any
party or person interested. (Hecker v. Sexton, 43 Hun, 593 [1887].)
Infant married woman.] Where the infant is a wife, her husband is
usually appointed, unless his interest is adverse to hers. (Disbrow v. Folger,
5 Abb. 53 [Sp. T. 1857]. See, however, Cook v. Rawdon, 6 How. Prac. 233
[Chamb. 1851].)
Guardian nominated by adverse party will be removed — power to
appoint for nonresident infant.] Where the Supreme Court of the State of
New York appoints a guardian ad litem nominated by the adverse party in
express violation of Rule 49, the order appointing the guardian ad litem so
nominated should be vacated and the general guardian of the infant may make
such a motion.
Where an infant defendant, a resident of New Jersey, is, in this State,
served with an order to show cause why a guardian ad litem should not be
appointed to represent her in a special proceeding, the Supreme Court has the
power upon the failure of the infant to apply for the appointment of a guard-
ian ad litem prior to the return day, to appoint Buch a guardian ad litem.
(Matter of Cutting, No. 1, 38 App. Div. 247 [1899].)
When irregularity in appointment of guardian ad litem will vacate
proceedings thereon.] An order permitting a trustee to resign his trust and
appointing a referee to state his accounts, should be reversed where it appears
that the guardian ad litem representing the benefieiary of the trust, who was
a nonresident infant over the age • of fourteen years, was nominated by the
adverse party, and that his appointment was, therefore, irregular under Rule
49. (Matter of Cutting, No. 2, 38 App. Div. 252 [1899].)
When irregularity in appointment of guardian will relieve purchaser
under a judgment in partition.] A purchaser at a sale under a judgment in
partition, will be relieved where it appears that guardians ad litem for infant
defendants were connected in business with the attorney for adverse parties.
(Parish v. Parish, 77 App. Div. 267.)
When necessary.] A guardian must be appointed where a creditor
applies for payment from a fund in court in which an infant is interested.
(Matter of Howe, 2 Edw. 484 [1835].)
Who to be appointed.] A person who is most likely to fully protect
the rights of the infant is the one who should be appointed guardian. (Grant
v. Van Schoonhoven, 9 Paige, 255 [1841].)
336 CoTJETs OF Recoed. [Rule 49
■ Appointment vacated.] The appointment of a guardian ad litem, nom-
inated by the adverse party in a special proceeding, will be vacated. (Matter
of Cutting, 38 App. Div. 247 [1899].)
The guardian himself must be of full age.] (Kellogg vi Klock, 2 Code
E. 28 [Sp. T. 1849].)
Guardian, who has appeared, must answer.] A guardian who has
appeared must put in an answer for the infant. (Farmers' Loan & Trust Co.
T. Eeid, 3 Edw. 414 [1840].)
Removal of.] Where the court clearly discovers that the interests of
infnnts are committed to a guardian who is not likely to protect them, he
should be removed and a proper one appointed. (Litchfield v. Burwell, 5
How. Prac. 341 [Sp. T. 1850].)
Cannot settle an action.] A guardian ad litem has power only to
prosecute an action in which he has been appointed, and cannot settle the
same unless authorized by the court; and his authority is limited to the
subject-matter of that action. He has no general authority to bind the infant
or his estate. (Christ v. Chetwood, 1 Misc. Rep. 418 [N. Y. City Ct. 1892] ;
Edsall V. Vandemark, 39 Barb. 589 [Gen. T. 1863].)
Allowance of costs to.] Costs may be allowed to a special guardian
unsuccessfully contesting the probate of a will, but limited by and only as
specified in the Code of Civil Procedure (§§ 2558-2561). (In re Budlong, 33
Hun, 235 [1886].)
An allowance to a guardian on an ex parte application — improper.]
A surrogate cannot grant an allowance to a special guardian upon his ex parte
application therefor. The provision as to costs and allowances should be in-
serted in the decree. (Matter of Budlong, 33 Hun, 235 [1884].)
Power of the court to provide for the compensation of a special guard-
ian.] The power of the court to award to the guardian of an infant, to be
paid out of the subject-matter of the action, such a compensation as appears
to be reasonable for the services he has performed, is inherent in it and does
not depend upon the provision of the Code of Civil Procedure, nor is it to be
included in or limited by the sum of $2,000 fixed by section 3254 of the said
Code as the limit of allowance. ( Weed v. Paine, 31 Hun, 10 [1883].)
Right of guardian to recover compensation from the father.] A guard-
ian ad litem is not entitled to recover his compensation from the father of
infant children under an agreement with him, where in an action in which
the father's interest is not identical with that of his children such guardian
appears. (Thorn v. Beard, 39 St. Rep. 30 [Sup. Ct. 1891].)
Disbursements of a brother appointed guardian ad litem before ap-
pointment.] A brother appointed guardian ad litem of an infant girl, in
proceedings for the sale of an interest in property owned by tliem in common,
should be credited with the amount expended by him for her support before
his appointment. (Hovell v. Noll, 10 Misc. Rep. 546 [1894].)
Where no guardian has been appointed the complaint should be dis-
missed.] Where it appears for the first time upon the cross-examination of
plaintiff as a witness that plaintiff is an infant, and that no guardian ad litem
has been appointed, a dismissal of the complaint is proper, and the court has
no authority to deny an application for such dismissal and allow plaintiff to
Rule 49] General Eules of Practice. 337
file a petition for a guardian ad litem, nunc pro lunc. (Imhoff v. Wurtz,
Civ. Proc. R. 48 [Erie County Ct. 1886]. See, however, Smart v. Haring, 14
Hun, 276.)
Failure to appoint a guardian in proceedings for the sale of land to
pay debts does not deprive the court of jurisdiction.] Sale of real estate to
pay the debts of a deceased person. The failure to appoint a guardian for an
infant does not deprive the Surrogate's Coui-t of jurisdiction. (Jenkins v.
Young, 43 Hun, 194 [1887].)
Failure to appoint a guardian for an infant plaintiff in an action does
not deprive the court of jurisdiction of the action.] Upon the trial of this
action the defendant first learned, from the cross-examination of the plaintifi',
that at the time the action was commenced she was a, minor, although she
had become of age before the time of the trial. Heidi tlisut the omission to
appoint a guardian for her did not afi'ect the jurisdiction of the court, and
that a motion to dismiss the complaint was properly denied. (Sims v. New
York College of Dentistry, 35 Hun, 344 [1885].)
Failure to appoint a guardian ad litem is an irregularity necessitating
reversal] Failure to appoint a guardian ad litem for an infant defendant is
an irregularity for which judgment entered against him must be reversed.
(Frost V. Frost, 15 Misc. Rep. 167 [1895] ; judgment modified in 16 id. 430.)
The defendant may raise the objection on appeal to the Coimty Court
without the interposition of a guardian ad litem, (lb-)
Infant legularly represented is concluded like any other party.] An
adjudication made in proceedings to which an infant regularly represented in
accordance with the practice of the court is a party, has the same effect as a
similar adjudication between adults. (Matter of Hawley, 100 N. Y. 206
[1885].)
Infant who contests a will by guardian does not forfeit her interest
under the wiU.] In a proceeding instituted for the probate of a will in which
an infant is a party, such infant will be bound by the adjudication therein
made, and in the event of a contest made on behalf of such infant by his
guardian ad litem, the contest is not such an act of the infant as will forfeit
the benefit to him under the will in a elause revoking provisions in favor of
any beneficiary who should contest the probate thereof. (Bryant v. Tracey,
27 Abb. jST. C. 183 [Sup. Ct. 1891].)
Clerk of court must give security as guardian.] If the clerk of the
court is appointed guardian ad litem for an infant defendant in an action of
partition, he must give security. (Fisher v. Lyon, 34 Hun, 183 [1884].)
Guardian cannot enforce money judgment until security is given.]
Where the plaintiff' in an action by a guardian ad litem recovers a money
judgment, the guardian must give the security required by section 474 of the
Code of Civil Procedure and Rule 51 of the General Rules of Practice before
the judgment can be enforced. (Wileman v. Met. St. R. Co., 80 App. Div.
53 [1903].)
Liable for costs.] The guardian ad litem for an infant plaintiff is liable
for costs, though the Code does not require him to file security therefor.
(Code of Civil Procedure, § 3249.)
22
338 CouETs OF Recoed. [Rule 49
Guardian ad litem for defendant is not. (Code of Civil Procedure,
§ 477.)
Waiver of right to security for costs.] The absolute right of a defend-
ant to require an infant plaintiff to give security for costs where his guard-
ian ad litem has given none is waived unless it is asserted before answer.
(Dwyer v. McLaughlin, 27 Misc. Rep. 187 [1899].)
Attachment for costs.] The defendant, if successful, is entitled to an
attachment against the person of the guardian for his costs. {Wice v. Com-
mercial Fife Ins. Co., 8 Daly, 70 [1877] ; Schoou v. Schlessinger, 7 Abb. N. C.
399 [Sp. T. 1879].)
Liability of a plaintiff for the costs and disbursements of a guardian
ad litem.] Where a sale under a judgment of foreclosure has resulted in a
deficiency, services rendered by a guardian ad litem for an infant defendant
are for the infant's benefit, and the fact that the plaintiff in a foreclosure
suit has requested such services will not make him liable personally for the
costs and disbursements of the guardian ad litem which it has been adjudged
should be paid out of the proceeds of the sale. (Hill v. Lee, 4 App. Div. 154
[1896].)
Punished.] A guardian who fails to protect the interests of the infant
will be punished. (Knickerboclcer v. Defreest, 2 Paige, 304 [1830].)
For an infant beneficiary of a trust residing in New Jersey.] The
Supreme Court has power to appoint a guardian ofl! litem of an infant bene-
fioiai-y of a trust, over the age of fourteen, residing in New Jersey but served
in New York with an order in a special proceeding by the trustee to obtain
a discharge from his trust, requiring the infant to show cause why a guard-
ian ad litem should not be appointed to represent her in the proceeding, where
the infant fails to apply. (Matter of Cutting, 38 App. Div. 247 [1899].)
Purchase by a guardian ad litem of an infant's interest in property —
presumption against its fairness.] A purchase of an infant's interest by the
guardian ad litem in partition raises a presumption that it was made in the
individual interest of the guardian, and the burden is upon the latter to
show that the purchase is not one prohibited by statute; unless it is shown
to have been made for the benefit of the infant the sale is void, though con-
firmed by an order entered in the partition suit. (O'Donoghue v. Boies, 92
Hun, 3 [1895].)
Who may apply for the appointment.] An application to appoint a
guardian ad litem may be made by a general guardian appointed in another
State. (Freund v. Washburn, 17 Hun, 543 [1879].).
Petition for appointment of a guardian, addressed to county judge, but
entitled and entered as an order of the County Court.] Where a petition for
the appointment of a guardian ad litem for an infant plaintiff is addressed
to the county judge, but the order of appointment, signed by the comity
judge, is entitled and entered as a County Court order, the order is valid as
an order of the county judge. (Albrecht v. Canfield, 92 Hun, 240 [1895].)
Application for appointment made too soon.] The infants were per-
sonally served out of the State, under the order of publication, on October
31 anil November 1, 1890. The appIicatio]i for appointment of guardian
Eule 50] Geneeal Rules of Peactice. 339
ad litem on behalf of three of the infants -was granted December 8, 1890, and
for another March 10, 1891. Held, that aa under the provisions of the Code
(§§ 441, 471) the infant defendants could not make such an application until
forty-two days had elapsed from the time when personal service was made,
the court acquired no jurisdiction to make the appointment of guardian for
the three infants; that they were not competent to waive, by any affirmative
act, the restrictive provisions of the statute, and so, that an appearance by
the guardian was not an appearance by the infants. (Crouter v. Crouter, 133
N. y. 53 [1892].)
Only after service of summons.] A guardian ad litem for an infant
defendant can only be appointed after the service of the summons. (Inger-
soll V. Mangam, 84 N. Y. 622 [1881]; Code Civil Procedure, § 471.)
Otherwise in an action for partition.] (See Gotendorf v. Goldschmidt,
83 N. Y. 110 [1880]; Wood v. Martin, 66 Barb. 241 [Sp. T. 1873].)
Waiver of defects of service by a guardian ad litem.] An appearance
and answer by a guardian ad litem is not a waiver of defects in the service
of the summons. (Bingham v. Bingham, 3 How. Prac. [N. S.] 166 [Sup. Ct.
Sp. T. 1884].)
Effect of the infant's arriving at full age pending the suit.] (Smart v.
Harring, 14 Hun, 276 [1878]; Breese v. Metropolitan Life Ina. Co., 37 App.
Div. 152 [1899].)
Compensation of.] In proceeding for discharge of teatamentary trus-
tees, where there is a question whether infant party has any interest in the
corpus of trust fund, the compensation of the guardian ad litem limited to
taxed costs. (Matter of Pitney, 186 N. Y. 540.)
Who should bring action.] Where cause of action exists in favor of
infant, action should be brought by guardian ad litem and not by general
guardian, unless general guardian is entitled to sue as trustee of express
trust. (Schlieder v. Dexter, 114 App. Div. 417.)
ETJIE 50.
Guardian ad Litem, Duties of — What Affidavit Hequired to Entitle a
Guardian to Compensation.
It shall be the duty of every attorney or officer of the court to
act as the guardian of any infant defendant, in any suit or pro-
ceedings against him, whenever appointed for that purpose by an
order of this court. And it shall be the duty of such guardian
to examine into the circumstances of the case, so far as to enable
him to make the proper defense, when necessary for the protec-
tion of the rights of the infant; and he shall be entitled to such
compensation for his services as the court may deem reasonable.
But no order allowing compensation to guardians ad litem shall
be made, except upon an affidavit to be made by such giiardian,
340 CouETS OF Eecoed. [Rule 51
if an attorney of the court, or if tte guardian be not an attorney,
then an affidavit to be made by an attorney of the court who has
acted in the matter in behalf of such guardian, showing that he
has examined into the circumstances of the ease, and has, to the
best of his ability, made himself acquainted with the rights of
his ward, and that such guardian has taken all the steps neces-
sary for the protection of such rights, to the best of his knowledge,
and as he believes, stating what has been done by him for the
purpose of ascertaining the rights of the ward.
Rule 61 of 1838, amended. Rule 62 of 1871. Rule 62 of 1874. Rule 53
of 1S77. Rule 50 of 1880. Rule 50 of 1884. Rule 50 of 1888. Rule 50
of 1896.
See notes under Rule 49.
RUIE 51.
Guardian, Bond of, Before Receiving Property.
No guardian ad litem for an infant party shall, as such
guardian, receive any money or property belonging to such in-
fant, or which may be awarded to him in the suit (except such
costs and expenses as may be allowed by the court to the
guardian), unless he has given an undertaking executed by a
surety company authorized to do business in this State, in double
the amount of such money or property, or a bond secured by a
mortgage on improved and unincumbered real property.
jSTeither shall the general guardian of an infant receive any
part of the proceeds of a sale of real property belonging to an
infant sold under a decree, judgment or order of the court until
the guardian has given such further security for the faithful
discharge of his trust as the court may direct. In case, how-
ever, such proceeds shall exceed the sum of five hundred dollars
the court shall require the guardian to give a bond, in the penalty
of double the amount to be paid to the guardian, such bond to be
that of a surety company authorized to do business in this State
or secured by mortgage on improved and unincumbered real
property worth the amount of the penalty of the bond.
Rule 62 of 1858. Rule 63 of 1871. Rule 63 of 1874. Rule 54 of 1877.
Rule 51 of 1880. Rule 51 of 1884. Rule 51 of 1888. Rule 51 of 1896.
Rule 51, amended, 1910.
See notes under Rule 49.
Rule 52] Geneeal Rules of Peactige. 341
EULE 52.
Appointment of General Guardian — Petition for.
Except in eases otherwise provided for by law, for the purpose
of having a general guardian appointed, the infant, if of the age
of fourteen years or upward, or some relative or friend, if the in-
fant is under fourteen, may present a petition to the court, stat-
ing the age and residence of the infant, and the name and resi-
dence of the person proposed or nominated as guardian, and the
relationship, if any, which such person bears to the infant, and
the nature, situation and value of the infant's estate.
Rule 63 of 1858. Rule 64 of 1871. Rule 64 of 1874. Rule 55 of 1877,
amended. Rule 52 of 1880. Rule 52 of 1884. Rule 52 of 1888. Rule 52
of 1896.
CODE OF CIVIL PROCEDURE.
§ 1563. Action for waste by ward, against his guardian.
I 1679. Guardian of an infant defendant not to purchase at sale — exception.
§ 1590. General guardian of infant may apply for autliority to agree to
partition.
§ 2410. General guardian of infant may apply to have infant's name changed.
SI 2821-2841. Appointment, removal and resignation of a general guardian.
§ 2842, etc. Guardian must file annual inventory and account — proceedings
thereon, etc.
§& 2851-2860. Guardians appointed by will or deed.
GUARDIANSHIP — Who entitled to.] Persons entitled to the guardian-
ship in socage of infants owning lands. (See l^awa of 1896, chap. 272, § 50.)
Right of a surviving parent to nominate a guardian by will or deed.
(See Laws of 1896, chap. 272, § 51.)
Trust company appointed where both parents are dead.] Where both
parents of a cliild eleven years old are dead, a trust company, instead of her
maternal grandmother, may be appointed guardian of the infant's person and
estate. (Matter of Beebe, 33 St. Rep. 999 [Sup. Ct. 1890].)
A nonresident alien cannot be general guardian.] A nonresident alien
named as a guardian in the will of a resident is not entitled to have letters
of guardianship issued to him. (Matter of Zeller, 25 Misc. Rep. 137 [1898].)
For a nonresident.] The Supreme Court cannot appoint a guardian for
an infant who does not reside in this State and who lias no property tlierein.
(In the Matter of Hubbard, 82 N. Y. 90 [1880].)
What to be stated in the application.] The petition for the appoint-
ment should show which of the relatives of the infant reside in the county.
(Matter of Feeley, Redf. 300 [1880]; Code of Civil Procedure, § 2822.)
Powers of Surrogates' Courts over.] The nature and extent of the
jmisdietion ot Surrogates' Couj-ts over testamentary guardians considered.
(In re Hawley, 104 N. Y. 250 [1887].)
3i2' CouETS OF Eecoed. [Eule 52
Appointment of, in Surrogate's Court — when notice unnecessary.]
Appointment of a guardian for an infant in a Surrogate's Court — no notice
is required if the infant be present and consent. (Matter of Seabra, 38 Hun,
218 [1885].)
As to the surrogate's powers. (Matter of Hosford, 2 Eedf. 168 [1877] ;
Code of Civil Procedure, §§ 2821, 2822.)
Removal of guardian — surrogate may compel account.] Under section
2603 of tlie Code oif Civil Procedure, the surrogate may require a guardian to
account and pay over in proceedings talien for his removal. (Phillips v. Lieb-
mann, 10 App. Div. 128 [1890].)
When the appointment will be reversed.] Where the surrogate errs in
neglecting to make proper inquiries upon an application to appoint a guard-
ian or in omitting to direct proper notices to be given to such of the relatives
as, in the exercise of a sound discretion, he ought to have notified, his deci-
sion will be reversed on appeal. (White v. Pomeroy, 7 Barb. 640 [Gen. T.
1850]; Holley v. Chamberlain, 1 P.edf. 333-336 [I860].)
Jurisdiction of the Supreme Court over minors.] The jurisdiction of
the Supreme Court over the persons and estates of infants, without regard
to their age, is not limited by section 2827 of the Code, conferring concurrent
jurisdiction on the Surrogate's Court, nor by Rule 52 of the General Rules of
Practice designating tiie person who may present a petition for the appoint-
ment of a general guardian of an infant. (Matter of White, 40 App. Div.
165 [1899].)
Powers of Supreme Court over.] The jurisdiction of the Supreme
Court over the persons and estates of infants, without regard to their age, is
hot limited by section 2827 of the Code of Civil Procedure conferring concur-
rent jurisdiction on the Surrogate's Court, nor by Rule 52 designating the
person who may present a petition for the appointment of a general guardian
for an infant. (Matter of White, 40 App. Div. 165 [1899].)
When appointment may be revoked.] Where the Supreme Court, upon
the application of an infant over the age of fourteen years, has appointed
the father of the infajit guardian of hia person and estate, it has power upon
application of a corporation, a former temporary guardian of the person and
estate of the infant, and upon notice to the infant and to the father, to
revoke the appointment of the father as guardian and to appoint the corpora
tion, the former temporary guardian, in his place, notwithstanding the fact
that the infant asserts that he will not consent to the appointment of any
person other than his father as guardian. (Matter of White, 40 App. Div.
165 [1899].)
Powers of Supreme Court — proceeding by petition.] Proceedings for
the removal of a guardian may be commenced by a petition. The Supreme
Court has power to remove a testamentary guardian. (Matter of King, 42
Hun, 607 [1886].)
Removal of guardian.] An action cannot be brouglit in the Supreme
Court to remove a guardian appointed by a siurogate. (Dutton v. Dutton, 8
How. Prae. 99 [Sp. T. 1S52].)
Right to employ counsel.] The widowed mother of an infant who
owns real estate is entitled to the possession of such real estate as general
Eule 52] General Eules of Peactice. 343
guardian with the rights, etc., of a guardian in socage, and has the right to
employ counsel and to make a contract for his compensation. (Matter of
Hynes, 105 N. Y. 5G0 [1887]). Liability of the guardian and of an attorney
to pay counsel under such circumstances. (76.)
Liability of sureties on a bond of a general guardian.] Where a gen-
eral gu-ardian became insolvent, removed to another State and died there, no
representative of his estate being appointed, and a mortgage given by him to
indemnify his bondsmen vi^as foreclosed and the proceeds realized were paid
into a trust company to the joint account of the guardian and the bondsmen,
after which the trust company became insolvent and the fund was lost, held,
that the moneys received by the guardian as such not having been so depos-
ited, the sureties on his bond were not exonerated from liability; and that
the court, in an action against them on the bond, could determine the liability
of the guardian and enforce the obligation of the sureties on the bond. (Otto
v. Van Riper, 31 App. Div. 278 [189S].)
When and in whose name suit should be brought against the sureties
upon a general guardian's bond.] Action against sureties upon a general
guardian's bond. Question as to whether it should be brought in the name
of infant or of the guardian. When action will lie against the sureties on a
bond before an accounting has been had by the guardian. (Perkins v. Stim-
mel, 42 Him, 520 [1880].)
Surrogate's decree conclusive against a guardian's sureties.] The sure-
ties of a general guardian are, in the absence of fraud, concluded by the
decree of the Surrogate's Court, entered upon the accoimting of the executrix
of the guardian, as to the amount due from his estate to the ward. (Martin
V. Hann, 32 App. Div. 602 [1898].)
Liability of sureties where a guardian has misappropriated funds.]
Where the obligation as administrator to pay and the right and duty to
receive as guardian are united in the same person, he becomes chargeable in
the latter capacity and his sureties are liable if, prior to his appointment as
guardian, he has misappropriated and converted to his own use the moneys
received by him as administrator to which his ward was entitled. (Matter
of Noll, 10 App. Div. 356 [1896].)
Sureties liable for costs awarded against a guardian by the surrogate.]
The costs awarded against a guardian on a decree of the surrogate removing
him are an inherent part of the decree, and the sureties of the guardian are
as much liable for their payment as for that of any other money which he
is adjudged to pay. (Phillips v. Liebmann, 10 App. Div. 128 [1896].)
Allowance to guardian for necessaries furnished by him before his
appointment.] Allowances may be made to a guardian for necessaries fur-
nished by him to the infant before the issue of letters of guardianship.
(Matter of Miller, 34 Hun, 26 
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