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Full text of "General rules of practice of the courts of record of the State of New York : with annotations, notes, and references"

Cornell University Law Library 

THE GIFT OF 

Allan H. Treman, Attorney at Law 
Ithaca, New York 
Date.,Mar..ch...8.,....lS 



Cornell University Library 

KFN5992.A2 1910 



General rules of practice of the courts 




3 1924 022 879 344 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924022879344 



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, 267 [1884].) 

Guardian to apply only income to his ward's support.] A guardian 

should not apply more than the income of the fund held for his ward to the 
latter's support, although there are exceptions to this rule. (Matter of Wan- 
dell, 32 Hun, 545 [1884].) 

Purchase by a guardian of his ward's lands — bad.] A purchase by 

a special guardian of the ward's land is presumptively fraudulent. (People 



344 CouETs OF Eecoed. [Rule 52 

V. The Globe Mutual Life Ins. Co., 33 Hun, 393 [1884] ; Code Civil Procedure, 
§ 1679.; 

Purchase of a ward's property by a guardian at a foreclosure sale.] 

The common-law rule prohibiting the purchase by a guardian of his ward's 
property at a foreclosure sale had before 1877 was enforcible only in equity, 
and did not support an action of ejectment by the ward. (Dugan v. Denyse, 
13 App. Div. 214 [1897].) 

He has no authority to carry on business in the name of his ward. 

(Warren v. Bank of Eochester, 157 N. Y. 2.59 [1898].) 

Real estate purchased by a guardian under an order of the surrogate.] 

Heal estate purchased by the guardian of an infant under an order of the 
Surrogate's Court granted upon petition will, upon the death of the infant 
before majority, descend as personal and not as real property. (Matter of 
Bolton, 20 Misc. Rep. 532 [1897].) 

The guardian of an infant has no inherent power as such to invest 

the personal property of the infant in real estate. (/6.) 

A surrogate cannot authorize such purchase.] The Surrogate's Court 

is without jurisdiction to authorize a guardian to purchase real estate for an 
infant with the infant's personal property. (lb.) 

Election by a sole legatee to accept the land instead of the personal 

property.] When the guardian of an infant has purchased real estate under 
an order granted upon petition by the Surrogate's Court, and the infant has 
died leaving a will bequeathing all her property and estate to her husband, 
the husband, as sole legatee, may elect to accept the land instead of requiring 
the guardian to account for the funds used in its purchase; and if he so 
elects a decree should be made directing the guardian to convey the property 
to him. (IJ>.) 

Where a widow in good faith purchases property which has been 

owned by her husband on its sale on foreclosure, though she is at the time 
a guardian in socage of his children, the sale is not void, but the title vests 
in her subject to being impressed with a trust in favor of the children, 
enforcible only upon the performance of the conditions which equity should 
impose. (O'Brien v. General Synod of Reformed Church, 10 App. Div. 605 
[1896]. See, also, Greagan v. Buchanan, 15 Mise. Rep. 580 [1895].) 

General guardian — he may collect and sue for his ward's share of rent 

collected from premises owned in part by his ward.] A general guardian of 
an infant may maintain an action to recover one-half of the rent of certain 
premises owned by the infant and the defendant as tenants in common, the 
entire rents of which had been collected and received by the defendant. 
(Coakley v. Mahar, 30 Hun, 157 [1885].) 

Right of infant to be brought up in religious faith of father.] Letters 

of guardianship revoked in order