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

See other formats

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

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 and 2

4 and 7

3 and 7

8 and 9

5 and 6

ri6

117

23 and 24

ri9

\20

Part of Rule 19

32 and part of 34

RULES.
CORRESPONDING RULE — (Continued).

1880,

1900.

1896.

1884
and

1888.

1877.

1874.

1871.

1858.

r411

142/

f47
\48

50
51

69
60

59
60

68
59

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.

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.

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-

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

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

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

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 summons.
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 Affidavit 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

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

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].)

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

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.)

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,

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

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

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.

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,

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, 0
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.)

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 that ward might be brought up in the
religious faith of its deceased father. (Matter of McConnon, 60 Misc. Rep.
22; Matter of Crickard, 52 id. 63.)

Right of mother.] Since the enactment of the Domestic Relations

Law it is obligatory upon the suiTOgate to give the mother notice of appli-
cation for the appointment of a guardian for infant child. (Matter of
Drowne, 56 Misc. Rep. 417.)

Enle 53} General Rules of Practice. 345

Fatiier of infant preferrej.] Surrogate will appoint father guardian

unless he is shown to be unfit. (Matter of Tully Infants, 54 Misc. Rep. 184.)
Provision in will of mother appointing testamentary guardian for child whose
father is living, held ineffectual during lifetime of father. (Matter of Wal-
ker, 54 Misc. Rep. 177.)

Rights of mother of infant.] Husband's attempt by will to dispose of

guardianship of his minor children, to the exclusion of mother, held void.
(Matter of Kellogg, 110 App. Div. 472.)

Accounting.] Although no order was previously obtained, upon judi-
cial settlement of guardian's accounts allowance may be made on account of
advancements for support and maintenance of ward. (Matter of Putney, 61
Misc. Rep. 1.)

Guardian who advances money to protect ward's real estate from fore-
closure aOowed interest on siuns advanced, but charged with interest on rents
he had collected in his own name. (MeCormick v. Shannon, 127 App. Div.
745.)

Compensation.] Claim of guardian for moneys paid to attorney for

legal services in prosecuting claim in favor of ward before his appointment,
disallowed. (Matter of Tyndall, 48 Misc. Rep. 39.)

Powers of guardian to impose restrictions upon ward's property.]

Neither an executor (unless so authorized by the will) nor a general guardian
has power by an independent contract to impose restrictions upon an infant's
property and impair Ms estate by a mere covenant against use for the bene-
fit of a stranger. (Curry v. lieil, 19 App. Div. 375 [1897].)

Negligence — v/hat is not culpable negligence in a general guardian.]

The failure of the general guardian of an infant legatee to institute proceed-
ings to compel the payment of the legacy, where the estate is sulEeient and
the executor is known or believed to be solvent, is not of itself such culpable
neglect as will prevent a recovery on behalf of such infant in an action
brought to compel the residuary legatee to refund moneys prematurely paid
to him. (Buffalo Loan, Trust, etc., Co. v. Leonard, 154 N. Y. 141 [1897].)

PAYMENT — Of money to general guardian.] See Rule 59.

RTILE 53.
Court to Ascertain the Age of Infant and Amount of Property, etc.
Upon presenting the petition, the court shall, by inspection or
otherwise, ascertain the age of the infant, and if of the age of
fourteen years or upward, shall examine him as to his voluntary
nomination of a suitable and proper person as guardian ; if under
fourteen, shall ascertain who is entitled to the guardianship, and
shall name a competent and proper person as guardian. The
court shall also ascertain the amount of the personal property,
and the gross amount of value of the rents and profits of the real

340 CouETs OF Recoed. [Rule 54

estate of the infant during his minority, and shall also ascertain
the sufficiency of the security offered by the guardian.

Rule 64 of 1858. Rule 65 of 1871. Rule 65 of 1874. Rule 56 of 1877.
Rule 53 of 1880. Rule 5.3 of 1884. Rule 53 of 1888. Rule 53 of 1896.
See notes under Rule 52.

RULE 54.
Bond of a General Guardian.

The security to be given by the general guardian of an infant
shall be a bond in the penalty of double the amount of the per-
sonal estate of his ward and of a gross amount or value of the
rents or profits of the real estate during his minority. The bond
shall be executed by the guardian, together with at least two
sufficient sureties, each of whom shall be worth the amount
specified in the penalty of the bond over and above all debts.
If, however, the total amount of the personal estate of an infant
and of the gross amount or value of the rents or profits of the
real estate during his minority shall exceed twenty-five hundred
dollars, then the bond must be the bond of a surety company
authorized to do business in this State, or the general guardian
may give a bond secured by a mortgage on improved and unen-
cumbered real property of the value of the penalty of the bond.

The coiirt in its discretion may vary the security where from
special circumstances it may be found for the interest of the in-
fant, and may direct the principal of the estate and any part
thereof to be invested in the stocks of the State of Kew York or
of the United States, or deposited with any trust company which
shall have been designated as a depository for such moneys, or
invested in bond and mortgage on unencumbered and improved
property of at least double the value of the amount invested, to
be shown to the satisfaction of the covirt, for the benefit of the
infants, and that the interest or income thereof only be received
by the guardian.

Rule 65 of 1858, amended. Rule 66 of 1871, amended. Rule 66 of 1874,
amended. Rule 57 of 1877. Rule 54 of 1880. Rule 54 of 1884. Rule 54
of 1888, amended. Rule 54 of 1896. Rule 54, amended, 1910.

See notes under Rules 49 and 52.

Kule 55] Geneeal Eules of Peactice. 347

CODE OF CIVIL PROCEDURE.

§ 744. Comptroller to prescribe rules and regulations relative to the care
and disposition of moneys paid into court which shall be binding
in the absence of special directions by the court into which the
money was paid.

§ 745. Money paid into court (unless it be otherwise directed) to be paid
to the county treasurer and securities taken in his name.

§ 746. Money paid into court — where and how deposited or invested.

§ 747. Moneys paid into court — each court may make special directions
as to the disposition and investment thereof.

§ 749. Power of certain officers to bring actions relating to money held in
a representative character.

§§ 810-816. General regulations respecting bonds and imdertakings.

NEW YORK LIFE INSURANCE AND TRUST COMPANY — Section 3 of
chapter 75 of the Laws of 1830 authorizes the said company to be appointed
guardian of any-infant, the annual income of whose estate exceeds $100.

UNITED STATES TRUST COMPANY — Section 3 of chapter 204, Laws
of 1853, confers a similar authority upon this company.

TRUST COMPANIES — Appointment of, as guardian.] (See section 157 of
chapter 689 of the Laws of 1892.)

GENERAL GUARDIAN — Appointment of.] (See notes under Rule 52.)

Liability of sureties.] Held to be no defense to action against sure-
ties on bond of guardian for money lost through improper investments that
when bond was given guardian falsely represented to defendants that bonds
in which money was invested was good. (Rouse v. Whitney, 53 Misc. Rep.
56.)

Discharge of surety on bond of guardian no longer rests in the discre-
tion of the court, but he is entitled to it as a matter of right. (Matter of
Am. Surety Co., 61 Misc. Rep. 542.)

Powers of county treasurer same as other trustees. (Tompkins Co. v.

IngersoU, 81 App. Div. 344.)

EULE 55.

Petition for Sale of Real Estate of Infants, Lunatics, etc. — What to State
— Previous Application.

The petition in proceedings to sell, mortgage or lease real
estate belonging to an infant or lunatic, idiot or habitual drunk-
ard, shall state, besides the particular grounds for a sale, mort-
gage or lease of the property, and the other matters required by
the Code, the age and residence of the infant, lunatic, idiot or
habitual drunkard, and the name and residence of the person
proposed as a special guardian or committee, the relationship, if
any, which he bears to the infant, lunatic, idiot or habitual

348 CouETs OF Ejecoed. [Eule 55

drunkard, and the security proposed to be given; and also
whether any previous application has been made, and, if so, the
time thereof, and what disposition was made of the same.

Rule 58 of 1858. Rule 67 of 1871, amended. Rule 67 of 1874. Rule 58
of 1877, amended. Rule 56 of 1884. Rule 55 of 1888. Rule 55 of 1896.

CODE OF CIVIL PROCEDURE.

§ 340. Jurisdiction of County Court over the person and estates of incom-
petents.

§§ 2345-2364. Proceedings for the disposition of the real property of an in-
fant, lun-atic, idiot or habitual drunkard.

SALE — Power of the court to direct.] The power of the court to order the

sale of real estate belonging to an infant is derived entirely from the statute.
(Horton v. McCoy, 47 N. Y. 2il-2G [1871}; Losey v. Stanley, 147 id. 560
[1895]; Onderdonk v. llott, 34 Barb. 106 [Gen. T. 1861]; Baker v. Lorillard,
4 N. Y. 257 [1850] ; Rogers r. Dill, 6 Hill, 415 [1844] ; Muller t. Struppman,
6 Abb. N-. C. 343 [Sp. T. 1878].)

A mortgage given to pay the debt of another — the court is without

jurisdiction to order it.] Where the petition and proofs show, without dis-
pute, that the sole purpose of tlie proceeding is to mortgage tlie property of an
infant to pay the debt of another, and there is no proof or claim that his prop-
erty is not sufficient to pay all of his own debts and for his necessary educa-
tion, the court does not acquire Jurisdiction. (Warren v. Union Bank of
Rochester, 157 N. Y. 529, revg. 28 App. Div. 7 [189S].)

Power of the legislatnre to order a sale of infant's land.] It is within

the power of the Legislature by special act to authorize a sale of an infant's
lands, including the future contingent interests of those not in being. (Ebling
T. Dreyer, 149 N. Y. 460 [1896].)

Power of the court over the proceedings — continues during minority.]

On the sale of an infant's interest in real property, the court has control of
the proceedings until tlie infant arrives at maturity and tlie money has been
paid over to him, and can correct any irregularities and mistakes so as to pro-
tect a party likely, innocently, to suffer thereby. (Applied to case where the
interest of the infant was one-third and the sale was of a one-half interest in
the land.) (Matter of Price, 67 X. Y. 231 [1877].)

Povrers of.] A guardian is not permitted to invest personal property

of an infant in real estate without an order of the Supreme Court. (Manahan
V. Holmes, 58 Misc. Rep. 86.)

— — ^A general guardian cannot bind the ward's person or property unless
expressly authorized by statute. (Aborn v. Janis, 62 Misc. Rep. 95.)

Sale contrary to the statute — void.] A sale made contrary to the

provisions of the statute is utterly void and passes no title to the purchaser.
(Rogers v. Dill, 6 Hill, 415; Matter of Turner, 10 Barb. 5.52 [Sp. T. 1851].)

Noncompliance with the rule — does not invalidate the sale.] The rule

of the Court of Chancery (Rule 158) requiring an infant to join when he is

Rule 55] Geneeal Eules of Practice. 349

over fourteen years of age, was a mere regulation of practice, which the court
had power to waive, and did not affect the jurisdiction, nor did its violation
invalidate the sale. (Cole v. Gouxlay, 79 N. Y. 527 [1880]. See, however.
Code Civ. Proc, § 2349.)

Possession in fact or law — not necessary to authorize.] Under the

statute providing for the siiie of the interest of an infant in real estate, a sale
can be ordered in those ca^es in which the infant is not in the actual posses-
sion of the land, nor entitled to the immediate possession thereof. (Jenkins
v. Fahey, 73 N. Y. 355 [1878].)

Of equitable estates.] Courts of equity have inherent iurisdiction,

independent of the statute, to or-der the sale of equitable estates of infants.
(Wood v. Mather, 38 Barb. 475 [Gen. T. 1862].)

Expectant estates and estates in remainder.] Can be sold thereunder.

(Jenkins v. Fahey, 73 K. 1^ 355, reversing 11 Hun, 351 [1877]; Matter of
Haight, 14 id. 176 [1878].)

Contingent interest of an infant cannot be sold under the statute.]

The contingent interest of an infant under a devise conditioned upon the re-
marriage of her mother, to whom the primary estate is devised, is not an
estate which can be sold under the statute. {Matter of Dodge, 40 Hun, 443
[18SG].)

Estate of infant trustees.] Proceedings for transferring the title of

infant trustees under the Revised Statutes (article concerning the sale of in-
fants' estates), are not affected by the one- hundred and seventy-sixth section
of the article. That section applies only to the sale of infants' estates held
in their own right. (Wood v. Mather, 38 Barb. 473 [Gen. T. 1862].)

APPLICATION — By whom made.] The application must be made by the
petition of the general guardian or the guardian of the property of the infant;
OT by the committee of the property of the lunatic or other incompetent per-
son, or by any relative or other person in behalf of either. Where the appli-
cation is in behalf of an infant of the age of fourteen years or upwards, the
infant must join therein. Where the application is made to the Supreme
Court the petition must be presented at a term held within the judicial district
in which the property or a part thereof is situated. (Code Civ. Proc, § 2349.)

Corroborating affidavits and petition by general guardian — may be

dispensed with.] The court has power to dispense with the provision of the
rule requiring corroborating affidavits and with that requiring the petition to
be by the general guar-dian of the infant, or to show that he has none.
(Cole v. Gourlay, 79 N. Y. 527 [1880].)

Infant need not join in petition.] Under ,the provisions of the Revised

Statutes, in relation to the sale of real estate of infants {2 R. S. 194, § 170,
et seg. ) , it is not essential that the infant should join in the petition for such
sale ; it may be made by the next friend or guardian alone. (Cole v. Gourlay,
79 ]Sr. Y. [1880]. See, however. Code Civ. Pro., ■§ 2349.)

Form of petition.] Tlie form of the application is not of importance,

if the necessary facts are stated. A petition entitled " The petition of, etc.,
infants, by their next friend," is sufficient to give the court jurisdiction.
(O'Reilly v. King, 2 Rob. 587 [Gen. T. 1864]; S. C, 28 How. Prac. 408.)

350 Courts of Eecoed. [Kule 55

A petition in proceedings instituted for the sale of an infant's real

estate, reciting that it was the petition of an infant under fourteen years of
age, by his general guardian, and executed by the latter on the infant's behalf
and verified, although throughout the petition the infant is described as the
petitioner, is the petition of the guardian, and is sufficient in form. (Matter
of Hopkins, 33 App. Div. 615 [1898].)

■ ■ When irregular.] Such petition is, however, defective where it fails to
state the facts and particulars concerning the real and personal property of the
infant, his income, and the debts against his estate, as required by Code of
Civil Procedure (§ 2350), it not appearing that the sale was necessary to
avoid an action of partition; and a purchaser is justified in refusing to take
a title founded thereon. (lb.)

It should be addressed to the " Supreme Court of the State of New

York."] (Matter of Bookhout, 21 Barb. 348 [Sp. T. 1856].)

Where made.] The application must be made at a Special Term, and

not to a justice at chambers. (Matter of Bookhout, 21 Barb. 348 [Sp. T.
1856].)

BOND — Of guardian to sell infant's real estate — when it should be exe-
cuted— it takes effect from the time of its delivery.] (Center v. Finch, 22
Hun, 146 [1880].)

SALE TO PAY DEBTS — Special guardian cannot dispute such debts.]
Proceedings to mortgage an infant's real estate for payment of his debts —
the special guardian cannot dispute the validity of debts he is directed to
pay — when he is not protected by an order of confirmation. (Matter of
Lampman, 22 Hun, 239 [1880].)

ORDER — Form of, in proceedings to pay debts.] In proceedings to mort-
gage an infant's real estate for the payment of debts, the order directing the
mortgage, and the report of the referee, should specify the debts to he paid.
(Matter of Lampman, 22 Hun, 239 [1880].)

— Deposit without delivering to the depositary a copy order directing it.]
In proceedings to sell real estate in which an infant had an interest, her
special guardian being directed by order of the court to deposit the amount
of her share with the defendant, " to await the further order of said court,"
made the deposit, without serving the order of the court, in his name as special
guardian for the infant. Held, that this did not constitute notice to the
defendant of the order, and the amount having been paid to the special
guardian or on his order, could not be recovered from defendant by the infant
on becoming of age. (Walker v. State Trust Co., 24 Misc. Eep. 498 [1898].)

DEED — May be executed by a special guardian in his name as special
guardian.] An order in the Court of Chancery, in proceedings for the sale of
certain infants' real estate, adjudged that the special guardian, who signed
the petition, should execute a sufficient conveyance of the interests of the in-
fants; a -deed was executed by him in his own name as special guardian, the
names of the infants appearing in the deed. Held, that the deed was in proper
form; that it was not necessary to have it executed in the names of the in-
fants. (Cole Y. Gourlay, 79 N. Y. 527 [1880].)

COUNTY COURT — Always open, for proceedings for sale.] The County
Court need not exercise its powers in regard to the sale of an infant's estate

Eule 55] General Rules of Peaotice. 351

at a stated term, but is always open for that purpose, except as otherwise
provided by statute. (Brown v. Snell, 57 N. Y. 286 [1874]. See Code Civ.
Proc, § 3(55.)

LEASE — Powers of a Court of Chancery to lease an infant's real estate.]
The Court of Chancery, under its powers to lease the lands of infants, had
jurisdiction in an action by trustees of real property in which infant defend-
ants were entitled to a conditional remainder, to authorize the execution of
leases by the trustees for a term of years, with covenants for renewals, and a
judgment to that effect will bind the infants upon their subsequently acquir-
ing an estate in the lands by virtue of a power of appointment under a will
executed pursuant to the deed under "which the trustees were appointed.
(Gomez v. Gomez, 147 N. Y. 195, a%. 81 Hun, 566 [1895].)

Allowance to a guardian for expenses — suing as a poor person.]

Where a guardian ad litem of an infant appointed upon the petition of the
infant's father, after obtaining an order of the court permitting him to sue
as a poor person, commences the action, but before trial, upon the stipula-
tion of the attorneys, such order is vacated by a subsequent order not filed
until after judgment is rendered, the latter order should be set aside and the
proceedings be remitted to the Special Term to determine what allowance
should be made to the guardian for expenses, it being evident that the plain-
tiff's attorney was seeking to secure for himself a greater compensation than
is allowed by the law under which he was appointed. (Dunlay v. American
Telephone & Telegraph Company, 4 App. Div. 432 [1896].)

MORTGAGING INFANTS' REAL ESTATE — Powers of the court relating
thereto, etc.] Under section 2348 of the Code of Civil Procedure, the court
has power to authorize the mortgaging of real estate of infants for the pur-
pose of discharging an annuity charged thereon, and the mortgage covers what-
ever interests the infants have, whether an estate in possession or a vested
future estate. (Graver v. Jermain, 17 Misc. Eep. 244 [1896].)

Use and income of property given to executors in trust until infants

become of age — the remainder vests and may be mortgaged.] The fact
that the use and income of property is given in trust to executors until the
infants attain majority, when the land is devised to them, does not prevent
the vesting of the remainder independent of the trust, and the same may be
mortgaged by authority of the court, though such vested interests may possibly
be defeated by the happening of a future event. (/6.)

When a mortgage, including the interests of infants, need not state

their proportionate liability.] Wliere an order directs the guardian of
infants to unite with the adults interested in giving a mortgage on different
pieces of property, and the mortgage refers to the proceedings by which it was
authorized, they are to be construed with it, and where they show the pro-
portionate liability of the infants' estates the mortgage itself need not specify
the limitation of each. (Ili-)

Mere irregularities in proceeding to mortgage are not ground for set-
ting the mortgage aside.] A brewery business belonging t(J an infant was
carried on for a time, solely in his interest, by his general guardian who, as
such, gave his own notes to a bank to meet an indebtedness incurred in the
business, and procured an order of the Supreme Court to mortgage the infant's

352, CouETS OF Eecoed. [Kule 56

real estate, in the proceedings for -which the general attorney cif the bank was
appointed special guardian and made an oral agreement, afterward carried out
to mortgage the property to a third person, by whom the mortgage was after-
ward assigned to the bank. In an action brought by the infant to have the
mortgage set aside.

Held, that the attorney not having i-epresented the bank in the proeeedin<Ts,
his appointment as guardian, and his making an oral contract, were irregu-
larities merely, and that the transaction being fair, and the court having had
jurisdiction under Oode of Civil Procedure, sections 2348-2364, the proceed-
ings could not be attacked collaterally, (Warren v. Union Bk., 28 App.
Div. 7 [18^8].)

EXCHANGING AND MORTGAGING INFANTS' PROPERTY — Powers of
County Court relating thereto.] Under section 2348 of the Code of Civil
Procedure, providing that the real estate of an infant " may be sold, con-
veyed, mortgaged, released, or leased " in the manner prescribed, the County
Court has no power to grant leave to make an exchange of lands in which an
infant is interested, nor to mortgage the land acquired' in exchange therefor
for the amount of the difference in value. (Moran v. James, 21 App. Div. 183
[1897].)

aULE 56.

Seferee's Report — Proof of Value.

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
absolute 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 separate 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 vahie of the property or interest
to be disposed of reqiiired 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 peti-
tioner, and the report shall not refer to the petition or any other
papers for a statement of fact.

Eule 57] Geneeal Eules of Peactice. 353

Rule 67 of 1858. Eule C8 of 1871, amended. Eule 68 of 1874, amended.
Eule 9 of 1877, amended. Rule 56 of 1880. Rule 56 of 1884. Rule 56
of 1888. Rule 56 of 1896, amended.

See notes under Rule 55.

REFERENCE — When unnecessary.] The court may proceed summarily
without a reference, if the facts are made to appear so as to show a clear case,
where the disposal of the estate is necessary and proper for any of the pur-
poses indicated by the statute. (Matter of Mcllvaine, 15 Abb. 91 [Gen. T.
■1»62].)

RULE 57.
Bond of Special Guardian.

The security required on the sale of the real estate of an infant
shall be a bond of the guardian, with two sufficient sureties in
the sum of double the value of the premises including thg interest
on such value during the minority of the infant, each of which
sureties shall be worth the penalty of the bond over and above
all debts, which bond shall be duly acknowledged and accom-
panied with affidavits of justification made by the sureties. In
case, however, the value of the premises, including the interest
on such value during the minority of the infant, shall exceed the
sum of $500, the court must require the guardian to give a bond
of a sitrety company authorized to do business in this State or a
bond secured by a mortgage on improved and unencumbered real
property of the value of the penalty of the bond.

Rule 68 of 1858. Rule 69 of 1871. Rule 69 of 1874, amended. Rule 60
of 1877, amended. Rule 57 of 1880. Rule 57 of 1884. Rule 57 of 1888.
Rule 57 of 1896. Rule 57 as amended, 1910.

See notes under Rule 55.

CODE OF CIVIL PROCEDURE.

f 474. Guardian ad litem not to receive property until security is given —

except when.
§' 475. Form and amount of security to be given by guardian ad litem.
§§ 810-816. General regulations respecting bonds and undertakings.

SURETIES — Justification of.] Where real estate was sold for the benefit
of five children, and the guardian gave a bond to each, with the same sureties,
held, that the sureties should justify in respect to their ability as to the
aggregate penalties of the several bonds. {Anonymous, 4 How. Prac. 414
tSp. T. 1850].)

354 CoTJETs OF Eecoed. [Rule 57

Unauthorized act of a guardian for which his sureties are not liable.]

In an action against a surety on the bond of a special guardian, given in pro-
ceedings for the sale of infants' real estate, brought by one of the former
infants, it appeared that the proceeding had been instituted by tlie infants and
their general guardian to obtain a sale of the lands in order to pay off in-
cumbrances thereon, which incumbrances included a judgment in favor of the
present defendant; that the proceeding vpas regularly conducted by a reference,
referee's report and order of the court directing the special guardian to con-
tract for a sale, that the guardian thereupon reported a contract of sale thereof
for a certain price; that an order was granted confirming his report and order-
ing him to convey the infants' interest; that he accordingly made a convey-
ance, received the money therefor and applied a portion of it in payment of
the judgment.

No question as to the propriety of such payment was made for more than
twenty years thereafter, but after the death of the guardian and the settlement
of his estate, the present action was brought against the defendant as one of
the sureties on the guardian's bond to recover the infants' interest in the
money so paid upon the defendant's judgment, on the ground that such pay-
ment by the guardian was a misappropriation and conversion of the fund, for
the reason that an order of the court was not previously obtained for the pay-
ment, under the rule of court (Rule 69 of 1858; Rule 58 of 1888), and for
the reason that no such order could have been made as the judgment was
void.

Held, that whether the judgment was void or voidable was not material, as
it was conceded that the claim on which it was based was a valid, one against
the infants' estate, and the court could have ordered the claim paid if no judg-
ment had been entered thereon.

That, although the money was paid without an order and in violation of a
rule of court, the estate of the infants had had the benefit of it, as they were
the residuary legatees of the estate. (Long v. Long, 66 Hun, 595 [1892].)

Upon a guardian's bond, not discharged by a judgment fraudulently

obtained.] Where a guardian, upon the coming of age of his ward, procured
a settlement with him, and an extension of time of payment, by means of
fraudulent representations, and the ward, upon discovery of the fraud, re-
pudiated the transaction, brought an action to annul it and to set aside the
surrogate's decree based thereon, discharging the guardian and recovered a
judgment granting the relief sought.

Held, that the liability of the sureties upon the guardisun's bond was not
affected by the settlement, as the effect of the judgment was to make the whole
transaction void ab initio, and so there was no binding or valid extension of
time of payment, and that said judgment was binding upon the sureties in an
action upon the bond. (Douglass v. Ferris, 138 N. Y. 192 [1893].)

Laches.] Held, that plaintiff was not chargeable with any omission

of duty in not notifying the sureties ; that if there was any duty to use active
diligence, it was imposed upon the sureties themselves, rather than upon the
ward, and the fact that the fraud was committed and repudiated imposed no
greater duty of active diligence upon the plaintiff than would have otherwise
existed against the sureties. (li-)

Eule 58] Geneii^^l Rules of Pkactice. 355

RULE 58.
When Proceeds of Sale Must be Brought into Court — Costs.
If the proceeds of the sale exceed $500, and the guardian has
not given security by mortgage upon real estate, he shall bring
the proceeds into court, or invest the same under the direction of
the court, for the use of the infant; and the guardian shall only
be entitled to receive so much of the interest or income thereof,
from time to time, as may be necessary for the support and main-
tenance of the infant, without the order of the court. If the
infant's interest in the property does not exceed $1,000, the
whole costs, including disbursements, shall not exceed twenty-
five dollars, and referee's fees not exceeding ten dollars. Where
several infants are interested in the same premises as tenants in
common, the application in behalf of all shall be joined in the
same petition, although they may have several general guardians ;
and there shall be but one reference to ascertain the propriety of
a sale as to all, and but one bill of costs shall be allowed.

Rule 69 of 1858, amended. Rule 70 of 1871. Rule 70 of 1874, amended.
Rule 61 of 1877. Eule 58 of 1880. Rule 58 of 1854. Rule 58 of 1888.
Rule 58 of 1896.

CODE OF CIVIL PROCEDURE.

§1 743-754. Payment of money into court — care and disposition thereof.

COSTS — When allowed in excess of twenty-five dollars.] If several in-
fants are included in the same application, or if several parcels are sold at dif-
ferent times, the solicitor for the petitioners is entitled to an allowance for
the extra expense, notwithstanding the limitation by the rule to twenty-five
dollars. (Matter of Morrell, 4 Paige, 44 [1833].)

In proceedings to compel a special guardian appointed to sell the real

estate of an infant to pay over the proceeds. (Matter of Spelman v. Terry, 74
N. Y. 448 [1878].)

INVESTMENT — In land beyond the jurisdiction of the court — order
directing it is void.] MTiere land has been sold under an order of the County
Court, a subsequent order of the same court, directing the special guardian to
invest the proceeds in lands outside the county over which its jurisdiction ex-
tends, the infant and special guardian being at the time residents of the
county where such land is located, is a nullity. (Stiles v. Stiles, 1 Lans. 90
[G«n. T. 1869].)

356 CouETS OF Eeooed. [Rule 59

HULE 59.
When Proceeds to be Paid to General Guardian; Petition Therefor.

No money arising from the sale of the real estate of an infant
shall be paid over to his general guardian except so much thereof
or of the interest or income from time to time as may be neces-
sary for his su]3port or maintenance unless such guardian shall
give a bond in the penalty of double the amount to be paid to
him with sufficient surety to be approved by the court. In case,
however, such money shall exceed the sum of $500 the court must
require the guardian to give a bond of a surety company author-
ized to do business in this State or a bond secured by a mortgage
on improved and unencumbered real property of a value of the
penalty of the bond.

No order shall be made for the payment of any such moneys to
any person, except upon petition, accompanied by a certified copy
of the order, in pursuance of which the money was brought into
court, together with a statement of the co\mty treasurer, city
chamberlain, or other depository of the money, showing the
present state and amount of the fund, separating the principal
and interest, and showing the amount of each ; and the court may
take such proof of the truth of the matters stated in the petition
as shall be deemed proper, or may refer the same to a suitable
referee to take proof and report thereon.

Rule 70 of 1858. Rule 71 of 1871. Rule 71 of 1874. Rule 62 of 1877.
Rule 59 of 1880. Rule 59 of 1884. Rule 59 of 1888. Rule 59 of 1896.
Rule 59 as amended, 1910.

See Rule 51.

CODE OF CIVIL PROCEDURE.

§§ 743-754. Payment of money into court and care and disposition thereof.

Effect of order directing proceeds to be paid to guardian.] Where

the order does not specify the purposes for what the proceeds are to be de-
voted, it will he assumed that all such proceeds are absolutely necessary for
the support of the infant. (Allen v. Kelly, 171 K". Y. 1 [1902].)

The requirements of the rule are not satisfied by the bond of a surety^

company. (Matter of Flynn, 58 Misc. Rep. 628.)

Rule 60] Geneeal Eules of Peactice. 357

RTTLE 60.

Failure to Answer on Mortgage Foreclosure — R«f arence — What Proof Must
be Made — Judgment.

If, in an action to foreclose a mortgage, tlie defendant fails
to answer within the time allowed for that purpose, or the right
of the plaintiff, as stated in the complaint, is admitted by the
answer, the plaintiif ma_^ have an order referring it to some suit-
able person as referee, to compute the amount due to the plain-
tiff, and to such of the defendants as are prior incumbrances of
the mortgaged premises, and to examine and report whether the
mortgaged premises can be sold in parcels, if the whole amount
secured by the mortgage has not become due. If the defendant
is an infant, and has put in a general answer by his guardian, or
if any of the defendants are absentees, the order of reference shall
also direct the person to whom it is referred to take proof of the
facts and circumstances stated in the complaint, and to examine
the plaintiff or his agent, on oath, as to any payments which have
been made, and to compute the amount due on the mortgage, pre-
paratory to the application for judgment of foreclosure and sale.

When no answer is put in by the defendant, within the time
allowed for that purpose, or any answer denying any material
facts of the complaint, the plaintiff, after the cause is in read-
iness for trial, as to all the defendants, may apply for judgment,
at any Special Term, upon due notice to such of the defendants
as have appeared in the action, and without ptitting the cause on
the calendar.

The plaintiff, in such case, when he moves for judgment, must
show, by affidavit or otherwise, whether any of the defendants
who have not appeared are absentees ; and, if so, he must produce
the report as to the proof of the facts and circumstances stated in
the complaint, and of the examination of the plaintiff or his
agent, on oath, as to any payments which have been made. And
in all foreclosure cases the plaintiff, when he moves for judg-
ment, must show by affidavit, or by the certificate of the clerk of
the county in which the mortgaged premises are situated, that a
notice of the pendency of the action, containing the names of the
parties thereto, the object of the action, and a description of the
property in that county affected thereby, the date of the mort-

358 CouETs OF Eecoed. [Rule 60

gage, and the parties thereto, and the time and place of record-
ing the same, has been filed at least twenty days before such appli-
cation for judgment, and at or after the time of filing of the com-
plaint, as required by law.

Rule 71 of 1858. Rule 72 of 1871. Rule 72 of 1874, amended. Rule 63
of 1877, amended. Rule 60 of 1880. Rule 60 of 1884. Rule 60 of 1888.
Rule 60 of 1896.

CODE OF CIVIL PROCEDURE.

§' 340. Action for the foreclosure of a mortgage — when it may be brought

in a County Court.
§ 447. Who are proper parties defendant.

§ 473. Guardian for absent infant defendants — how appointed.
§ 982. The action must be tried in the county in which the subject of the

action, or some part thereof, is situated.
§ 1242. Saile made — where — by whom — effect of the conveyance.
§ 2443. Security may be required upon a sale by a referee.
§ 1244. The conveyance to state in the granting clause whose right, etc., is

sold.
§§ 1626--1637. Provisions relating to foreclosure by action.
§ 2.798. Surplusi in foreclosure, when to be paid to surrogate.
§ 3297. Fees of the referee to sell.
§ 3307. Fees where the sheriff makes the sale.

FORECLOSURE — Parties — who are proper to a foreclosure suit.] In

actions of foreclosure only subsequent lienors should be made defendants.
(Bram v. Bram, 34 Hun, 487 [1885].)

When a bondholder may bring it.] When an action to foreclose a

mortgage may be brought by a bon-diholder, on the refusal of the trustee to
bring it. The complaint must allege a failure to comply with some obligation
for a breach of which the mortgage authorizes such an action to be brought.
(Davies v. New York Concert Company, 41 Hun, 492 [1886].)

A failure by the trustee to foreclose for a long time after a default does

not give a bondholder the right to bring an action of foreclosure on the ground
of abandonment or neglect of the trust. (Beebe v. Richmond Light, Heat &
Power Co., 13 Misc. Rep. 737 [1895].)

Wife not personally served with the summons in a mortgage fore-
closure— judgment not vacated.] A motion by a wife to set aside a judg-
ment of foreclosure on the ground that the summons had not been personally
served upon her as stated in the judgment-roll was held to be properly denied
in the discretion of the court, her interest being merely inchoate. (Smith v.
Askin, 20 Wkly. Dig. 394 [Supr. Ct. 1885] ; contra, Burton v. Sherman, Id.
419 [Sup. Ct. 1884] ; S. C, 98 N. Y. 629; Nagle v. Taggart, 4 Abb. N. C. 144
[Sp. T. 1877]; Lathrop v. Heacock, 4 Lans. 2 [Gen. T. 1871]; White v.
Coulter, 1 Hun, 366 [1874]; Foote v. Lathrop, 53 Barb. 183 [Gen. T. 1869];

Eule 60] Geneeal Rules of Peaoticb. 359

S. C, 41 N. Y. 358; Code Civ. Proc, § 450; Watson v. Church, 3 Hun, 80
[1874]; Feitn«r v. Lewis, 119 N. Y. 131 [1890]; Feitner v. Hoeger, 121 id.
660.)

Person not made a party in his official capacity.] Where a second

mortgagee holds the mortgage as trustee, and is not made a party in liis
official capacity to an action brought to foreclose the prior mortgage, if it does
not appear on the face of the complaint, or by answer, or by his appearance
in the capacity of trustee, that the trust which he represents is intended and
understood to be affected by the suit, the second mortgage remains a lien upon
the premises after their sale under the foreclosure of the prior mortgage.
(McGuckin v. Milbank, 83 Hun, 473 [1895].)

Mortgage foreclosure — when it binds a general assignee made a party

in his individual capacity.] Foreelosm-e of a mortgage • — when a general
assignee is tound by the judgment, although he is made a party individually
and not as assignee. (Wagner v. Hodge, 34 Hun, 524 [1885].)

All having a right to redeem made parties.] All persons entitled to

redeem from a mortgage must be made parties to an action. (Russ v. Strat-
ton, 11 Misc. Rep. 565 [N. Y. Supr. Ct. Gen. T. 1895].)

Any person liable for the debt.] Any person who is liable to the plain-
tiff for the payment of the debt secured by the mortgage may be made a de-
fendant in the action; and if he has appeared or has been personally served
with the summons, the final judgment may award payment by him of the
residue of the debt remaining unsatisfied, after a sale of the mortgaged prop-
erty, and the application of the proceeds, pursuant to the directions contained
therein.

The People.] The People of the State of New York may be made a

party defendant to an action for the foreclosure of a mortgage on real prop-
erty, where the people of the State of New York have a lien on the said real
property subsequent to the lien of the mortgage sought to be foreclosed in
said action in the same manner as a private person. In such a case the sum-
mons must be served upon the Attorney-General, who must appear in behalf
of the people. (Code Civil Procedure, § 1627.)

When a prior mortgagee is a proper party.] Where the owner of

mortgaged premises sells the same and takes from the vendee a mortgage to
secure the payment by the vendee of the prior mortgage, the prior mortgagee
is a necessary party defendant to an action brought to foreclose the second
mortgage. (Wait v. Getman, 32 App. IMv. 168 [1898].)

Mortgagor a necessary party, although a receiver has been appointed.]

The mortgagor is a necessary party to an action to foreclose the mortgage,
although a receiver of his property was appointed prior to the commencement
of the action and was made a party thereto. (Brandow v. Vroman, 29 App.
Div. 597 [1898].)

A prior assignor is a proper party.] A prior assignor of a mortgage

is a proper but not a necessary party to its foreclosure. (Merrill v. Bischoff,
3 App. Div. 361 [1896].)

Paramount claimants made parties.] It seems, that while a prior

incumbrancer is not a necessary or proper party in an action to foreclose a

360 Courts of Eeooed. [Rule 60

mortgage, yet if made a party the court has juriadiction, and may grant the
relief demanded in the complaint in case he makes default, and if he does not
desire to have his rights adjudicated he should appear and by answer or de-
murrer raise the question that he is improperly made a party. (Jacobie v.
Mickle, 144 N. Y. 237 [1894].)

1 Where in an action brought to foreclose a mortgage, a person whose

title to the mortgaged premises is superior and prior to that of the mort-
gagor is made a defendant, and it is alleged in the complaint that he has some
claim, or interest in the mortgaged premises, which, if any, accrued subse-
quently to the execution of the mortgage, ordinarily such person's rights will
not be affected by the foreclosure judgment, nor will he be estopped thereby
from afterward asserting his title to the premises in question, but it is other-
wise if the defendant in the foreclosure action so made a party sets up by
answer his prior right or claim to the premises and, stating facts in regard
to his interest therein, asks the court to determine as to his title thereto.

The judgment entered in such an action fixing the rights of such defendant
estops his heirs and privies from thereafter asserting any title to the prem-
ises other than that determined by such judgment. (Fletcher v. Barber, 82
Hun, 405 [1894].)

Dower.] A person claiming dower by title paramount to a mortgage

upon the real estate cannot be brought into court in an action to foreclose the
mortgage, and compelled to test the validity of her right to dower. (Nelson
V. Brown, 144 N. Y. 384 [1895].)

Title of infant defendant not cut off in foreclosure.] The rule that

the order of reference to compute amount due must direct the referee to take
proof of the facts, it is mandatory, and where this has not been complied with,
a purchaser at the sale need not take title, as it is not marketable, the rights
of infants not having been cut off. (Smith v. Warringer, 41 Misc. Rep. 94.)

Who are proper parties.] Conditional vendees of personal property

situated on mortgaged premises are not proper parties in foreclosure. ( Gon-
dit V. Goodman, 44 Misc. Rep. 312. See, also, Borden v. Longacre Sq. B. Co.,
92 App. Div. 325.)

Action on bond for a deficiency on foreclosure in another State.]

Where an action is begun in this State on a bond for a deficiency on the fore-
closure of a mortgage on land in another State, the right of recovery is regu-
lated by the law of such other State. (Stumpf v. Hallahan, 101 App. Div.
383. See Prior Liens, post.)

PUBLIC POLICY — Mortgage given to indemnify bail.] The execution
of a bond and nwrtgag© to indemnify bail in a criminal case is not contrary to
the public policy of the State of New York and such bond and mortgage are
valid. (Moloney v. Nelson, 158 N. Y. 351 [1899].)

Mortgage taken by a life insurance company on property not worth

fifty per cent, more than the loan.] The objection that a life insurance
company has taken a bond and mortgage in violation of sections 13 and 16 of
chapter 690 of the Laws of 1892, providing that the mortgages taken by such
companies shall be on " improved, unincumbered real property in this State,
worth 50 per cent, more than the amount loaned thereon," is not available

Eule 60] General Eitles of Practice. 361

to the mortgagor in an action to foreclose the mortgage, but to the State
alone. (Washington Life Insurance Company v. Clason, 16 App. Div. 434
[1897].)

Purchase by the mortgagee of the equity of redemption.] No relation

exists between the mortgagor and the mortgagee which, in the absence of fraud
or gross inadequacy in the price, prevents the mortgagee from purchasing the
equity of redemption or title of the mortgagor. (Martin v. New Rochelle
Water Company, 11 App. Div. 177 H896].)

APPEARANCE — After judgment.] A defendant appearing in an action
for foreclosure after the entry of judgment is entitled to notice of all the
subsequent proceedings. (Martine v. Lowenstein, 6 Hun, 225 [1875].)

When a party appearing is not entitled to notice of a hearing before

the referee.] Where, in an action brought for the foreclosure of a mortgage
upon real property, a defendant who has appeared but has not answered re-
ceives notice of a motion for judgment, but does not appear at the time speci-
fied therein, and without further notice to him the court appoints a referee to
compute the amount due upon the mortg'age, who makes his report, and upon
the filing of such report the court grants a judgment of foreclosure, such de-
fendant is not entitled to have the judgment opened on the ground that he did
not receive notice of the hearing before the referee. ( Eyring v. Hercules Land
Company, 9 App. Div. 306 [1896].)

After appearance — notice of computation of amount due.] Where

the defendant appears, but fails to answer, and the plaintiff gives due notice
of an application to the court for the relief demanded in the complaint, or
judgment, the court may, instead of itself computing the amount due, refer
it to the clerk, or to some other suitable person, to make such computation.
Suc-h reference is not such a new or independent proceeding as to require new
notice to the defendant. Nor need it be executed in the county in which the
action is triable. (Kelly v. Searing, 4 Abb. 345 [Sp. T. 1857].)

STATUTE OF LIMITATIONS — It does not run in favor of an absent
mortgagor.] Under section 401 of the Code of Civil Procedure, the period
during which a mortgagor of real property is absent from the State, is not a
part of the time limited for the commencement of an action to foreclose the
mortgage; the fact that such an action may be instituted by service of the
summons by publication does not limit the effect of that section. (Simonson
V. Nafls, 36 App. Div. 473 [1899].)

REFERENCE — Form of order of reference to examine, etc.] In a fore-
elosin-e action an order of reference is in due form where it directs the referee
to examine the plaintiff as to the truth of the allegations of the complaint
when the complaint averred that no payment had been made, and the plain-
tiff was examined and so testified before the referee. (Hatfield v. Malcolm,
71 Hun, 51 [1893].)

Not granted where some of the defendants are not served.] The action

cannot be referred while any defendants, against whom the plaintiff seeks a
judgment for a deficiency, have not been served with a summons, or have
been served only with a notice that no personal claim is made against them.

362 CouETs OF Keooed. [Rule 60

and have not appeared. (Goodyear v. Brooks, 4 Rob. 682 [Gen. T. 1866];
S. C, 2 Abb. [N. S.] 290.)

Nor upon a failure to appear on the trial, where an answer has been

interposed.] Where a defendant, who has failed to appear on the trial, has
interposed an answer raising a material issue, the plaintiff cannot take a
reference to compute the amount due. (Exchange Fire In&. Co. v. Early, 4
Abb. N. C. 78 [Sp. T. 1878].)

Practice where some defendants answer and some do not.] In an

action in which some of the defendants answered and some did not, the issues
raised by the answers were referred and decided against the defendants, but
the amount due was not computed. The plaintiff then applied, on notice, for
the relief demanded in the complaint, and no opposition being made, took
an order of reference to compute the amount due, and after obtaining the
report on notice, brought the cause to a hearing, and took judgment of fore-
closure and sale. Held, that his practice was regular. (Hill v. McReynolds,
30 Barb. 488 [Gen. T. 1859].)

Including inquiry as to amount due and the trial of issues — when

irregular.] As against a nonanswering defendant in foreclosure, it is irregu-
lar to combine in one reference the inquiry as to the amount due, with the
trial of issues between the plaintiff and other defendants, and to enter judg-
ment upon the report witliout applying to the court for judgment against the
nonanswering defendant. (Cram v. Bradford, 4 Abb. 193 [Gen. T. 1857].)

^To compute amount due — af&davits on motion for.] On a motion for

a reference to compute the amount due, the affidavit should show a failure
to answer, as provided by the rule, and, also, whether the moneys secured by
tlie mortgage have all become due and payable, and whether any of the
defendants are absentees or infants. (Anonymous, 3 How. Prac. 158 [Sp.
T. 1847].)

How affected by the amount demanded in the complaint.] The fact

that a trustee for bondholders states in his complaint that the amount of
bonds secured by a railroad mortgage is less than it is in fact, does not
prevent the referee from reporting the correct amount. (Peck v. N. Y. &
N. J. R. Co., 85 N. Y. 246 [1881].) In such a case the referee may properly
pass upon the validity of bonds claimed to be secured by a mortgage.
(Bockes V. Hathorn, 20 Hun, 503 [1880].)

Duties of the referee — amount due.] The referee may be required to

compute the amount due upon any other mortgage set up in the answer,
and also to ascertain whether there are any prior liens by mortgage upon
such premises. (Chamberlain v. Dempsey, 36 N. Y. 144 [1867]; S. C, 1
Trans. App. 257, reversing S. C, 9 Bosw. 540, 15 Abb. 1.)

Sale — additional compensation to the referee.] A referee's compensa-
tion, including commissions, cannot, where the sale is under a judgment in an
action to forclosure a mortgage, exceed fifty dollars unless the propery sold
for $10,000 or upwards, in which event the referee may receive such additional
compensation as to the court may seem proper, or in any other cause $500.
(§ 3297, Code of Civil Procedure,)

Kule 60] Geneeal Rules of Practice. 363

Such a referee is entitled, however, to be allowed his disbursements to

■whatever extent they were properly incurred. (Caryl v. Stafford, 69 Hun,
318 [1893].)

Allowing set-off — accounting.] Where a debt secured by a bond and

mortgage has become due, and the only persons interested in the estate of
the deceased mortgagor, excepting tlie creditors thereof, are the children of
the mortgagor and their descendants, the plaintiflF in an action brought to
foreclose such mortgage, if in any way indebted to the testator at the time of
his death, must allow the amount of such debt to be deducted from the
amount due upon the bond and mortgage.

In such foreclosiu-e action, where no accoimting has been had between the
parties, it is proper that an accounting between the mortgagee and his cestui
que trust should be ordered. (Ingalsbee v. Murphy, 84 Hun, 181 [1895].)

Extent of examination by.] When a decree has been made upon

pleadings and proofs, appointing a referee to compute the amount due, to
examine the plaintiff as to payments, and to take proof of the allegations of
the bill as against an absent defendant, and directing a sale of the premises
on the confirmation of the report, the parties who have appeared and an-
swered are concluded by such decree as to the issues .in the pleadings, and the
referee has no right to examine the plaintiff as to any facts, except thosa
relating to payments on the mortgage, nor to examine the absent defendant in
behalf of his codefend'ants, as to a defense of fraud set up in the answer.
(McCSrackan v. Valentine's Exrs., 9 N. Y. 42 [1853].)

Proceedings on the reference.] The referee is to perform his duty as

though he were an examiner, and the plaintiff must adduce legal proof of every
material fact alleged in the complaint; secondary evidfence will not answer.
(Wolcott v. Weaver, 3 How. Prac. 159 [Sp. T. 1847].)

Affidavit cannot be received as proof.] An affidavit made before a

commissioner of deeds cannot be received as evidence of the amount due.
(Security Fire Ins. Co. v. Martin, 16 Abb. Pr. 479 [Sp. T. 1863].)

The proper practice as to proving the bond and mortgage on, discussed

by counsel.] (Knickerbocker Life Ins. Co. v. Hill, 16 Abb. Pr. [N. S.] 321
[Gen. T. 1875].)

Recital of bond in mortgage.] The recital of the bond in the mortgage

is evidence of its execution. (Cooper v. Newland, 17 Abb. 342 [Gen. T.
1863].)

The referee need not find the several items.] It is not necessary for

the court to find the several items constituting the amount due in a fore-
closure suit. They are covered by the general finding. (Sidenberg v. Ely, 90
N. Y. 257 [1882].)

Nomination of the referee.] The nomination by one party of a referee

in a mortgage case is not an irregularity. (White v. Coulter, 3 N. Y. Sup.
Ct. [T. & C] 608 [1874].)

When there are absent defendants, form of order.] When there are

absent defendants, the order of reference should direct the referee to take proof
of the facts and circumstances set forth in the complaint, and to report the
proofs and examinations had before him. (Wolcott v. Weaver, 3 How. Prac.
159 [Sp. T. 1847].)

3'64 CouETS OF Eecoed. [Rule 60

REPORT — Should show facts and an abstract of the documents.] The
report of the referee should show the facts upon which his conclusions are
based (Wolcott v. Weaver, 3 How. Prac. 159 [Sp. T. 1847]), and be acoom-
panied with an abstract of the documentary evidence produced before him.
(Security Fire Ins. Co. v. Martin, 15 Abb. 479 [Sp. T. 1863].)

Where the mortgagee has been compelled, in order to preserve his

security, to pay rent.] (Eobinson v. Ryan, 25 N. Y. 320 [1862]; Catlin v.
Grissler, 57 id. 374 [1874].) Or to pay taxes.] The amount so paid may be
added to the mortgage, but not the expense of insurance, unless by the express
agreement of the mortgagor or the owner of the estate, (Faure v. Winana,
Hopk. Ch. 283 [1824].)

Confirmation of the report.] The report must be confirmed by the

court at Special Term. (Swarthout v. Curtis, 4 N. Y. 415 [1850]; S. C, 5
How. Prac. 198.)

Effect of the confirmation of the report.] The referee's report of the

amount due, when confirmed, becomes the act of the court. (McGrOwaa v.
Newman, 4 Abb. N. C. 80 [Sp. T. Suipr. Ct. 1878].)

Court confirming, how composed.] But the court rendering final judg-
ment need not be composed of the same judges who rendered the preliminary
judgment and ordered the reference. (Chamberlain v. Dempsey, 36 N. Y. 144
[1867], reversing S. C, 9 Boaw. 540, 15 Abb. 1.)

Report, impeachment of, as to terms of sale by af&davit.] To sustain

a report of sale as against exceptions filed to it, it cannot be shown by affi-
davit that the terms of sale were different from those reported. (Koch v.
PuTcell, 13 J. & S. 162 [1879].)

What is a sufiicient direction for the entry of a judgment.] The

statement, at the conclusion of a referee's^ report on foreclosure, that the plain-
tiff "is entitled" to judgment as specified in the report, is a sufficient direc-
tion for the entry of judgment to entitle the plaintiff to judgment accordingly.
(Albany County Savings Bank v. JlcCarty, 71 Hun, 228 [1893].)

ESTOPPEL — Assignor estopped from alleging payment of the mortgage.]
A mortgagee who, upon assigning the mortgage, expressly covenanted that a
certain sum, the payment of which he guaranteed, was due upon the mortgage,
is estopped both by his express covenant and by the covenant implied from
the assignment itself, from asserting that the mortgage debt had been repaid
to him prior to the assignment, as a defense to an action brought by his
assignee for the foreclosure of the mortgage, to which action he is a party de-
fendant, and in which the assignee has obtained a judgment of foreclosure by
default against all the defendants, with the exception of the mortgagee. (Gans
v. McGowan, 41 App. Div. 461 [1899].)

TRIAL — Unless reference is ordered, the trial is to be in the same county
as the property.] Unless a reference is made in an action of foreclosure it
can only be tried at a Special Term in the county where the premises are situ-
ated. (Gould V. Bennett, 59 N. Y. 124 [1874].)

JUDGMENT — Variance between it and the referee's report — remedy.]
Where, in an action to foreclose a mortgage, the referee's report states the
amount due at the time of the commencement of the action and that due at

]fule 60] GffiifEEAL Rules of Practice. 365

the date of his report, before which latter date and after the time of the com-
mencement of the action a payment of principal fell due under the provisions
of the mortgage, and the judgment sets forth the latter amount as .due, the
remedy of the defendant is by motion to correct the judgment and conform the
same to the report, and not by an appeal therefrom. (Walbridge v. James, 4
Hun, 793 [1875].)

Judgment of sale — not interlocutory.] A judgment in an action to

foreclose the equity of redemption in mortgaged premises, directing the sale
of the premises for the satisfaction of the debt, and that the defendant pay
any deficiency appearing after such sale, is final, and not interlocutory merely.
It leaves nothing further to be adjudicated or reviewed by the court. (Morris
V. Morange, 38 N. Y. 172 [1868]; Bolles v. Dufi", 43 id. 469 [1871]; Walcer v.
Link, 134 id. 122 [1892].)

Judgment of foreclosure is final only for the purposes of review.] A

judgment of foreclosure, while final for all purposes of review, is in other
respects interlocutory, and parties to the action having liens upon the property
may sell it upon execution, notwithstanding the judgment prior to the fore-
closure sale. (Nutt V. Cuming, 155 N. Y. 309 1898].)

Liability upon the bond.] Liability of the mortgagor where he sells

the land for a full consideration and conveys the same not subject to the mort-
ga^ge and rights of the mortgagee who purchases at a sale under the foreclosure
of the mortgage. (Wadsworth v. Lyon, 93 N. Y. 201 [1883].)

Effect of a judgment of foreclosure.] When a judgment is conclusive

as against all of the defendants in the action. (Roarty v. McDermott, 146
N. Y. 296 [1895].)

Effect of the foreclosure on the mortgage.] A judgment of foreclosure

of a mortgage does not so far merge the mortgage in the judgment as to blot
out the record of the mortgage or relieve aJiyone looking at the judgment, and
the deed given on the sale pursuant thereto, from the effect of that record as
showing what the mortgage contains. (Bernstein v. Nealis, 144 N. Y. 347
[1895].)

When interest of parties becomes barred.] The interests of parties to

the action becomes barred and foreclosed, not upon the entry of the judgment,
but upon the sale and conveyance of the land. (Nutt v. Cuming, 155' N. Y.
309 [1898].)

The judgment does not affect a party claiming under a paramount

title.] A judgment entered in an action for the foreclosure of a mortgage,
does not affect the right or title of a party defendant, alleged in the complaint
to have some interest in, or lien upon, the mortgaged premises which is sub-
ordinate to the lien of the mortgage, where it appears that such defendant
entered into possession of the premises prior to the execution of the mortgage,
pursuant to a contract to purchase the mortgaged premises, and that he has
fulfilled the contract upon his part and has paid the purchase price in full,
and has since remained in the open, visible possession and occupation of the
premises. It is immaterial whether such defendant appears and answers in
the foreclosure action or makes default. (Stillwell v. Hart, 40 App. Div. 112
[1899].)

366 CouETs OF Kecoed. [Rule GO

[Judgment in foreclosure does not prevent the defeat of the mortgage

under the Statute of Limitations.] A judgment of foreclosure and sale in a
mortgage foreclosure suit brought under the Revised Statutes (2 R. S. 191,
§ 151) is not a merger of the debt; it is simply a means of enforcing the
lien of the mortgage which remains until the debt is paid or discharged; the
lien, therefore, is, notwithstanding the decree, subject to be defeated by tlie
presumption of payment founded on lapse of time, the same as if no decree
had been rendered. (Bernard v. Onderdonk, 98 N. Y. 1.58 [1885].)

A judgment of foreclosure cannot settle priorities and equities of sub-
sequent incumbrances.] In an action to foreclose a second mortgage upon
certain lots in the city of New York, the first mortgagee was made a party,
priorities and equities of the subsequent incumbrances; that the whole pro-
ceeds of the sale. Other persons who held subsequent mortgages covering, in
whole or in -part, said lots, which took effect at different dates, were made
parties to the action. The decree of sale provided for a sale of the lota in
separate parcels in the inverse order of the giving of the mortgages. A sur-
plus ha.ving arisen on the sale of all the lota, the court below directed a dis-
tribution, according to the priorities as liens of the various subsequent mort-
gages. Held, no error; that the decree did not and could not settle the
priorities and equities of the subsequent incumbrances; that the whole pro-
ceeds of sale formed a common fund, to be applied first to the payment of
the first and second mortgages, the surplus to the payment of the subsequent
liens in the order of their priority, subject to the limitation that no greater
amount should be paid in discharge of a lien on any lot than was realized for
the lot at the sale; that, therefore, the surplus could not be regarded as con-
stituting a specific fund, subject to the specific liens upon the last lot sold,
but as a common fund distributable to all the lienors in the order of the
date when their mortgages became liens. (Burchell v. Osborne, 119 N. Y.
486 [1890].)

When such a judgment is res adjudicata against a mortgage.] A

notice of lis pendens was filed in an action commenced against the owner of
certain real estate to obtain an adjudication that such premises were subject
to certain restrictive easements; subsequently, and during the pendency of
such action, the owner of such premises mortgaged the same. The plaintiff
was finally successful in the action, and a judgment in his favor, and for
costs, was docketed after the recording of such mortgage. Held, that what
ever the judgment in such action determined in r\em touching such property
was res adjudicata against such mortgagee; but that such mortgage was a
lien on such real estate prior to the judgment for costs recovered in sucli
action. (Crocker v. Lewis, 79 Hun, 400 [1894].)

Scope of judgment.] The judgment in a foreclosiu-e action is not

determined by the facts as they existed at the commencement of the action,
but by the facts as they exist at the close of the litigation. (Sherman v.
Foster, 158 N. Y. 587 [1899].)

Foreclosure of mortgage not due at the commencement of the action.]

A mortgage not due at the commencement of an action to foreclose another
mortgage upon the same property may be included in the decree of foreclosure

Rule 60] Geheeal Rules of Practice. 367

provided it became due before judgment and was still unpaid and was covered
by the complaint and the evidence. (/5.)

What questions may not be raised collaterally.] The question as to

the validity or regularity of a provision in a judgment of foreclosure, not
raised by a party to the suit by answer, appeal or motion, may not be raised
collaterally where the court rendering the judgment had general jurisdiction
of the parties and the subject-matter of the action. (Matter of Estate of
Stilwell, 139 N. Y. 337 [1893].)

An order for a special clause to be inserted therein cannot be granted

before judgment.] A Special Term cannot, in advance of a decision and the
entry of judgment in an action, by an order graaited on a special motion,
require the court to which the action is to be submitted for judgment, to enter
particular provisions in that judgment. (East River Savings Institution v.
Bucki, 77 Hun, 329 [1894].)

Judgment where restrictive covenants were entered into subsequent

to the execution of the mortgage.] An owner of real property, who after
giving a mortgage upon it enters into an agreement subjecting the property
to certain restriotio^s, is entitled, upon stipulating to bid the amount of
the mortgage debt with the costs and expenses of the foreclosure, to have
inserted in the judgment foreclosing the mortgage a provision that the
premises shall be sold subject to the restrictions, notwithstanding the objec-
tion of the holder of the record title, who had purchased subject to such
restrictions. (Rhoades v. Card, 16 App. Div. 261 [1897].)

When a judgment and default will be set aside.] A judgment in rem,

at least before it is finally executed, is not so conclusive upon the court as to
prevent it from opening a default and vacating and setting aside the judg-
ment for the hearing of a new party and the determination of a new claim.
(Matter of City of Rochester, 136 N". Y. 83 [1892].)

Motion for judgment under this rule — when proper.] A motion for

judgment cannot be made under this rule when the answer raises an issue
against the plaintiff, although the issue so raised may not be a sufficient one,
and although the answer may not deny any material fact in the complaint.
The intention of the rule was to prevent defendants delaying a plaintiff by
interposing controversies between themselves. (Stuyvesant v. Browning, 1
Jones & S. 203 [Gen. T. 1871].)

What direction of judgment is not a decision.] The following indorse-
ment on the back of the complaint in an action for the foreclosure of a
mortgage : " Judgment of foreclosure and sale with deficiency judgment.
W. D. D., J. S. C," does not constitute a decision within section 1022 of the
Code of Civil Procedure, and affords no basis for the entry of a judgment.
(Osborne v. Heyward, 40 App. Div. 78 [1899].)

Sale of lands not described in the complaint.] A purchaser at a

foreclosure sale under a judgment does not acquire title to lands not described
in the complaint, but included in the judgment by mistake of the plaintiff's
attorney. (Clapp v. McCabe, 155 N. Y. 525 [1898].)

Remedy.] The defendant in the foreclosure action is not obliged to

move to correct the judgment, but may resist or attack it in any form that
he may elect. (/6.)

368 CouETs OF Eecoed. [Rule 60

Right of redemption given in a decree.] A provision in a decree

directing a judicial sale, authorizing the subsequent grantee and mortgagee
to redeem within the period provided by statute for the redemption of lands
sold on execution is error. The right to redeem lands from sale exists only
when given by statute, and while the lien created by the filing and entry of
a collector's bond is a general one, with no greater efiect as against prior
unrecorded conveyances than a judgment, it is not a judgment lien, or en-
forcible by sale under execution, and the provision of the Code of Civil Pro-
cedure authorizing redemption from sales under execution (§ 1440) does not
apply. (Crisfield v. Murdock, 127 N. Y. 315 [1891].)

Relief available to defendant in an action to set aside a mortgage and

to restrain foreclosure.] The defendants in an action brought to set aside a
mortgage as invalid and for an injunction restraining the foreclosure thereof
may, under proper allegations in their answer, if successful in maintaining the
validity of the mortgage and the right to enforce it, obtain all the relief that
they could obtain in a new action instituted by them for the foreclosure of
such mortgage. (Earle v. Kobinson, 84 Hun, 577 [1895].)

Death of the owner of the equity of redemption after interlocutory

judgment.] The death of the owner of the equity of redemption, against
whom no judgment for deficiency is demanded, after the entry of an inter-
locutory judgment, does not cause the action to abate, and no motion to
revive is necessary. (Wasson v. Hoff, 27 Misc. Rep. 55 [1899].)

JUDGMENT VACATED — Judgment and sale on foreclosure set aside to
enable service to be made on an infant.] Irregularities in the substituted
service of a summons upon an infant in an action of foreclosure. Eight of
the plaintiff to have the judgment and sale set aside in order to enable him
to again serve the infant. A purchaser need not be made a party to the action.
(Wood V. Kroll, 43 Hun, 328 [1887].)

Circumstances under which a judgment of foreclosure and sale will not

be set aside.] The judgment in an action to forcelose a mortgage executed
by a telegraph company to secure its bond®, recited the amount due upon
the bonds as it appeared by afiSdavit, ordered the referee appointed to sell
to ascertain and report the amount due " on such bonds as may be ascer-
tained and reported by such referee to be secured by said mortgage," with
the names of the persons holding them and by what title, and to sell unless
previous to the sale " the amount herein found as actually due and payable "
shall be paid. The referee did not, prior to the sale, report the amoimt due;
his report of sale was confirmed. On motion by a bondholder to set aside
the sale upon the ground that the failure to make such report rendered the
sale illegal.

Held, that the court below was competent to interpret its own judgment,
and its confirmation of the sale showed its understanding to be that the
reference as to amount of bonds was to be executed after sale; that, inas-
much as it appeared that the entire proceeds of the foreclosure would be
exhausted in paying olaims~paramount to the bonds, the omission to execute
the reference before sale, conceding it was required by the judgment, was at
most a harmless irregularity, and that the court below had power, in its

Eule 60] Gesteiial Rules of Pkactice. 369

discretion, to refuse to set aside the sale on that account. (F. L. & T. Co. v.
B. & M. T. Co., 119 N. Y. 15 [1890].)

PREMISES OUT OF THE STATE — Mortgage foreclosure — manner of —
election to have the whole amount become due.] Power of parties to a
mortgage to provide for the manner in which the mortgaged premises shall
be sold — as to property in this State, and as to property in other States.
This court cannot direct the sale of property in another State. Construction
of a provision giving to the mortgagee the right to elect that the principal
should become due on default of the mortgagor. (Farmers' Loan & Trust
Co. V. The Bankers & Merchants' Telegraph Company, 44 Hun, 400 [1887].)

Action for the strict foreclosure of a mortgage upon lands situated

in another State — when the courts of this State have jurisdiction over it.]
This action was brought to procure a strict foreclosure of a mortgage upon
lands in Cook county, Illinois, given by the defendant, Juliet E. Lockwood,
to secure the payment of a sum of money due to the plaintiff from the de-
fendant, John L. Lockwood, her husband. The referee dismissed the com-
plaint upon the ground that the com-t had no jurisdiction over the action
because the land was situated in the State of Illinois. Held, error; that as
the parties were within the jurisdiction of the coui't when its process was
served upon them and had appeared and served answers contesting the right
of the plaintiff to maintain the action, the court acquired jurisdiction to
entertain the action and to grant the relief sought. (House v. Lockwood,
40 Hun, 532 [1886].)

Land in another State — to be sold and conveyance to be executed by

the mortgagor.] In an aetioh to foreclose a mortgage where part of the
lands covered by the mortgage are in another State the court has power to
decree a sale of the whole, and may require the mortgagor to execute a con-
veyance to the purchaser. (Union Trust Co. v. Olmsted, 102 X. Y. 729
[1886].)

Amendment of judgment, requiring the mortgagor to execute a con-
veyance.] Where a provision for a conveyance is omitted from the judg-
ment, the court has power, after a sale, to amend the judgment by inserting
therein such a provision, (/i.)

Action on bond in this State.] Where an action is begun in this State

on a bond for a deficiency arising on foreclosure of a mortgage on land in an-
other State the law of the other State governs the right to recover. ( Stumpf
V. Hallahan, 101 App. Div. 383.)

PRIOR LIENS — Effect of a foreclosure on prior liens — right of subro-
gation.] Action to foreclose a mortgage. The validity of liens prior to the
mortgage cannot be contested. Right of the mortgagee to be subrogated to the
place of a prior mortgagee whose mortgage has been paid. Power of the
court over the relief to be granted. Emigrant Industrial Savings Bank v.
Clute, 33 Hun, 82 [G«n. T. 1884]. (See Burchell v. Osborne, 119 N. Y. 486
[1890].)

Effect of a foreclosure on a prior dower right.] Action for foreclosure

— effect of a judgment therein upon a defendant claiming a dower right prior

370 Courts of Keooed. [Rule 60

to the lien of the mortgage — proper practice in such a ease. (Lanier v.
Smith, 37 Hun, -529 [1885].)

Priority of judgments on land conveyed in fraud of creditors — dower.]

Judgment-creditors of a grantor of real estate, wlio has conveyed the same
in fraud of his creditors, have, by virtue of their judgments, liens upon the
premises so conveyed, which are entitled to priority in the order of time in
which their respective judgments are docketed, and are not affected by the
order in which suits to set aside such fraudulent transfer are instituted.
Where a conveyance by a husband is set aside on the ground that it was
fraudulent as to his creditors, the dower interest of his wife, which was cut
off by her uniting in the fraudulent deed with him, is restored to her, and
after the death of her husband she may recover her dower in the premises.
(Wilkinson v. Paddock, 57 Hun, 191 [1890].)

Purchase-money mortgage presumed to be a first lien.] In the absence

of any proof on the subject, the law will imply that a purchase-money mort-
gage is a first lien upon the 'premises ; it is competent, however, for the parties
to make a different agreement upon the subject, which agreement is binding
on an assdgnee of the purchase-money mortgage. (Dodge v. Manning, 19 App.
Div. 29 [1897].)

Voluntary future advances only, postponed to subsequent lien.] The

rule that the lieu of a mortgage to secure voluntary future advances will be
postponed in favor of the holder of a subsequent mortgage, as to such advances
as are made after knowledge on the part of the prior mortgagee of the exist-
ence of a subsequent mortgage, if it controls in this State, as to which quwre,
only applies where it appears, as matter of law, from the inspection of the
instrument, that the ad'vances are purely and plainly optional, so that the
prior mortgagee may decline to make the advances at his pleasure without risk
of damage or loss; it does not apply where an obligation to advance exists,
and, the right to decline depends upon facts de hors the instrument. (Hyman
V. Hauff, 138 N. Y. 48 [1893].)

Parties — prior lienors.] The only proper parties to a bill of foreclos

ure, so far as mere legal rights are concerned, are the mortgagor and mort-
gagee, and those who have acquired rights under them subsequent to the
mortgage. (Emigrant Industrial Savings Bank v. Groldman, 75 N. Y. 127.
131 [1878].)

SUBROGATION — When proper.] Where a party holds a second mortgage
and his equity of redemption has been out off by the foreclosure of the first,
he may sometimes have the right of subrogation, or even be entitled to an
assignment, but it will depend on circumstances showing its equity, and he
will not be entitled to a stay of the sale by injunction, without clearly showing
that the payment of the first, or its foreclosure or sale will work him in-
justice. ( Bloomingdale v. Barnard, 7 Hun, 460 [1876]. See, however, Dings
V. Parshall, 7 Hun, 522 [1876] ; Twombly v. Cassidy, 82 N. Y. 155 [1880].)

Who is a stranger and volunteer.] He is one who in no event can be-
come liable for the debt. (Blydenburgh v. Seabury, 104 App. Div. 141.)

Purchaser of mortgaged premises is not entitled to subrogation to the

extent of moneys paid on the mortgages.] A person who takes title to prem-

Eule 60] General Eules of Phactice. 371

ises subject to two mortgages, but does not assume payment of such mortgages,
is not entitled upon the foreclosure of the second mortgage to be repaid out of
the proceeds of sale a sum paid by him on the first mortgage and to share
proportionately with the second mortgagee for an amount paid by him upon
the second mortgage. (Schreyer v. Saunders, 39 App. Div. 8 [1899].)

Advancing money to discharge lien.] Where, at the request of one who

is interested in mortgaged premises, a party advances money to pay the
mortgage with the understanding that the premises are to be chargeable with
its repayment, the party so advancing the money is entitled to be subrogated
and enforce the mortgage so paid. (Gans v. Thieme, 93 N. Y. 225 [1883].)

Effect of quit claim deed given by holder of mortgage.] A quit claim

deed executed and delivered by one owning a mortgage is an effectual bar to a
subsequent action by such grantor to foreclose the mortgage. (McICell v.
Tracy, 100 App. Div. 80. )

JUNIOR MORTGAGEE — Redemption — a tender by, does not discharge
the lien of a prior incumbrancer.] (Frost v. Yonkers Savings Bank, 16 Alb.
Law J. 333 [Ct. of Appeals, 1S77] ; S. C, 8 Hun, 26 [1876].)

Redemption by a junior mortgagee not made a party.] A purchaser at

a foreclosure sale occupies, as a junior mortgagee who was not made a party
to the action — -although his mortgage was on record, the position of a mort-
gagee in possession, from whom the junior mortgagee is entitled to redeem.

The purchaser should not, however, be compelled to submit to a sale,

but should be permitted to -retain possession on paying the junior mortgagee
the amount due him. (Naylor v. Colville, 20 App. Div. 581 [1897].)

Right of dowress to redeem.] The wife of a mortgagor having an in-
choate right of dower in real estate formerly owned by her husband, of which
a mortgagee is in possession, has the right, even during 'the life of her hus-
band, to redeem such premises by paying the mortgage debt. (Campbell v.
Ellwanger, 81 Hun, 259 [1894].)

Junior incumbrancer not made a party to the action.] The rule that a

foreclosure is of no avail as against a junior incumbrancer who is not made a
party, applied. (Reynolds v. Park, 53 N. Y. 36 [1873].)

Leasehold interest — foreclosure of mortgage on.] Foreclosm-e of a

mortgage on a leaseh old estate — efi'eet of a sale upon a subsequent lease when
the lessor Is not made a party. (Pardee v. Stewart, 37 Hun, 259 [1885].)

Right of a junior mortgagee to take an assignment. As a rule an order

made in an action brought to foreclose a mortgage granting the motion of a
subsequent mortgagee for leave to pay off the mortgage in the suit and compel
the assignment thereof to him, is just and proper. (De Forest v. Peck, 84
Hun, 299 [1895].)

RENTS AND PROFITS — Power to appoint a receiver of rents and profits.]
The power to appoint a receiver of the rents and profits of mortgaged premises
accruing pending a foreclosure was inherent in a Court of Chancery before the
adoption of the Code of Procedure; it was continued by that Code and is not
abrogated by section 713 of the Code of Civil Procedure, defining cases in which
J-eceivers may be appointed. (Hollenbeck v. Donnell, 94 N. Y. 342 [1884].)

372i CouETS OF Eecoed. [Rule 60

Receiver of rents and profits — when proper.] When a receiver of

rents and profits will be appointed in an action to foreclose a contract for the
sale of land. (Smith v. Kelley, 31 Hun, 387 [1884].)

When a receiver of the rents and profits will be appointed.] In the ab-
sence of a clause in a mortgage pledging the rents and profits as security for
tile mortgage debt, the mortgagee can obtain the appointment of a receiver of
such rents and profits only upon showing, with reasonable certainty, that the
mortgage property is an inadequate security for the payment of the mortgage
debt. (Ross v. Vernam, 6 App. Div. 246 [1896].)

Helative rights of senior and junior mortgagees.] Where the question

as to the appointment of the receiver of the rents and profits arises between
senior and junior mortgagees, the moving party must show a superior equity.
(76.)

— :— Receiver appointed although principal sum is not due.] A receiver of
the rents and profits of mortgaged premises may, in a proper case, be ap-
pointed during the pendency of an action to foreclose the mortgage, although
the principal sum was not due at the time the action was commenced, and only
the interest can be collected therein. (Veerhoff v. Miller, 30 App. Div. 355
[1898].)

Receiver appointed without notice where the summons was served by

publication.] Where the summons in a foreclosure action was served upon
the owner of the equity of redemption by publication, the court has jurisdic-
tion under section 714 of the Code of Civil Procedure to grant, without notice
to such owner, an order appointing a receiver of the rents, issues and profits
of the premises. (Fletcher v. Krupp, 35 App. Div. 586 [1898].)

Proof authorizing the appointment.] What proof considered in con-
nection with a receiver's clause in the mortgage is sufficient to authorize the
appointment of the receiver. (H-)

A receiver's clause gives no absolute right to have a receiver appointed.]

The existence in a mortgage of a receiver's clause does not give the mortgagee,
in an action brought by him' for the foreclosure of the mortgage, an absolute
right to the appointment of a receiver of the rents and profits of the mortgaged
premises, but such clause is to be considered in connection with the other
features of the case in determining the property of appointing a receiver.
(Eidlitz V. Lancaster, 40 App. Div. 446 [1899].)

Receiver in mortgage foreclosure — what rents are recoverable by him.]

After an action of foreclosure has been commenced the plaintiff may, if the
security is in jeopardy, intercept, through the aid of a receiver, the rents or
emblements, or both; but the receiver is not entitled to recover for rents col-
lected or emblements removed prior to the date of his appointment. (Ham-
ilton V. Austin, 36 Hun, 138 [1885].)

Payment of rents, on a subsequent mortgage.] Foreclosure — receiver

of the rents and profits of the premises — disposal of the fund in payment of
a subsequent mortgage, sufficient having been realized upon a sale of the prem-
ises to pay the mortgage for the enforcement of which the action was brought.
(Keogh V. McManus, 34 Hun, 521 [1885].)

Second receiver in foreclosure.] In a proper case a receiver should be

appointed upon the foreclosure of a paramount mortgage given by a corpora-

Eule 60] Genbeal Eules of Practice. 373

tion, althougli a receiver has previously been appointed of tlie property of such
corporation in an action instituted for the foreclosure of a junior mortgage.
(Holland Trust Oo. v. Consolidated Gas & Electric Light Co., 85 Hun, 454
[1895].)

Right of junior incumbrancer when a receiver is appointed on his ap-
plication.] (Ranney v. Peyser, 83 N. Y. 1 [1880.].)

Mortgage upon — when retrospective discussed.] (15 Alb. Law J. 294.)

Receiver of — liability of the tenant to him.] (Nealis v. Bussing, 10

N. Y. Wkly. Dig. 289 [N. Y. Com. PI. Gen. T. 1880].)

After-acquired property.] When covered by a mortgage. (Piatt v.

N'. Y. & Sea B. R. R., 9 App. Div. 87 [1896] ; Rochester D. Co. v. Rasey, 142
N". Y. 570 [1894]; Beebe v. Riclimond L. H. & P. Co., 13 Jlisc. Rep. 737
[1895]; Davidson v. Westchester Gas Co., 99 N. Y. 558, 569 [1885].)

CONDEMNATION PROCEEDINGS — Effect of, on a mortgage.] A mort-
gagee of premises in the city of New York, the title to which has been acquired
by the city in condemnation proceedings before any default has taken place in
the conditions of the mortgage, loses bis lien upon the specific property and
acquires in place thereof the right, as a person interested in the property, to
have the value of his interest in the property ascertained and paid to him by
the municipality.

Semhle, that the right of 'action on the bond to which the mortgage is col-
lateral is not affected by the condemnation proceedings. (Hill v. Wine, 35
App. Div. 520 [1898].)

SURROGATE — When surplus moneys are to be paid over to him.] (See
Code of Civil Procedure, § 2798.)

Surrogate's jurisdiction over surplus money is constitutionaL] The pro-
visions of sections 2798 and 2799 of the Code of Civil Procedure, requiring sur-
plus moneys arising on the sale in partition or foreclosure of lands belonging
to the estate of a deceased person to be deposited in the Surrogate's Court
from which letters testamentary or of administration on the estate had been
issued, are constitutional. (Matter of Stilwell, 139 N. Y. 337 [1893].)

When surplus should not be paid into the Surrogate's Court.] Where

real property of a decedent, which is subject to a valid imperative power of
sale for the payment of her debts and funeral expenses, is sold upon a fore-
closure, in the Supreme Court, of a mortgage upon the premises, any surplus
moneys should be retained in the Supreme Court, instead of being paid into
the Surrogate's Court, under section 2798 of the Code of Civil Procedure, as
the Surrogate's Court cannot distribute the moneys, since, under sueh circum-
stances, proceedings could not be maintained under title 5 of chapter 18 of
the Code of Civil Procedure to sell the real estate of the decedent to pay her
debts. (Matter of Coutaut, 24 Misc. Rep. 350 [1898].)

TITLE — When acquired.] Purchaser does not acquire title till the delivery
of the deed. (Mitchell v. Bartlett, 51 N. Y. 447 [1873] ; AinsMe v. Hicks, 13
App. Div. 388 [1897]; Harrigan v. Golden, 41 id. 423 [1899].) On foreclosure
by advertisement, on the filing of the affidavits, etc. (Mowry v. Sanborn, 7
Hun, 380 [1876].)

Defense of failure of title.] One who purchases premises and assumes

payment of a mortgage thereon, so long as he remains in peaceable possession

374 CouETs OF Kecoed. [Rule 61

of the premises, cannot defend against the mortgage by setting up a defect of
title. (Paj-kinsoii v. Sherman, 74 N. Y. 88 [1878].)

To what equitable relief he is entitled. (/6.)

FOREIGN CORPORATION — Mortgage negotiated by.] The statutes of
the State of New York regulating the mortgaging of corporate property do not
apply to foreign corporations. (Ernst v. Rutherford & B. S. Gas Co., 38 App.
Div. 388 [1899].)

TAXES — When foreclosure will not be decreed for non-payment thereof.]
A court of equity will not entertain an action to foreclose a mortgage because
of a technical default in the payment of taxes where it appears that the taxes
were promptly paid by the mortgagor when her attention had been called to
the default and before the action was commenced, and that the mortgagee was
not injured by the default. (Ver Planck v. Godfrey, 42 App. Div. 16 [1899].)

DEED — Form of.] An order requiring the referee to convey by " a valid
and sufficient deed," requires a deed sufficient in form and terms to make the
title obtained by it as valid to the purchaser as it is in the power of the
referee officially to make it. (Easton v. Piskersgill, 55 N. Y. 310' [1873].)

DEFICIENCY — Assumption clause in deed does not of itself create a lia-
bility for any deficiency.] The mere presence in a deed of a clause stating
that the grantee assumes and agrees to pay an outstanding miortgage on the
premises, does not establish a personal promise or obligation on the part of
the grantee to pay the debt of a third party, in the absence of proof that the
grantee actually accepted the deed with knowledge of the assumption clause,
or at least under such circumstances that he was bound to know its purport
and legal effect. (Blass v. Terry, 1S& N. Y. 122 [1898].)

Judgment for, must be decreed in the judgment for sale.] Wben a

judgment in foreclosure does not decree that a party shall be liable for any
deficiency on the sale, an order granting such a judgment for deficiency upon
the referee's report of sale is irregular, andi will be set aside. (Day v. John-
son, 5 N. Y. Wkly. Dig. 237 [Sup. Ct. 1877].)

Cannot be entered until after a sale.] Where a judgment of foreclos-
ure, and for any deficiency arising on a sale, has been entered, a judgment for
deficiency cannot be entered without a sale, although the land has already been
sold under a prior mortgage. (Siewert v. Hamel, 33 Hun, 44 [1884].)

Resale — when it does not relieve one liable for a deficiency.] When

the (fact that, owing to the failure of the first purchaser to complete his pur-
chase, a resale is ordered, does not relieve one liable for any deficiency. ( Good-
win T. Simonson, 74 N. Y. 133 [1878]. See, however, Eesai.e, under Eule 62.)

RULE 61.

Judgment for Sale — Form of — Surplus Money — Disposition of — Referee

— Selection of.

In every judgment for the sale of mortgaged premises, the
description and particular boundaries of the property to be sold,
so far, at least, as the same can be ascertained from the mortgage,

Kule 61] General Eules of Practice. 375

shall be inserted. And, unless otherwise specially ordered by the
court, the judgment shall direct that the mortgaged premises, or
90 much thereof as may be sufficient to discharge the mortgage
debt, the expenses of the sale and the costs of the action, as pro-
vided by sections 1626 and 1676 of the Code, and which may be
sold separately without material injury to the parties interested,
be sold by or under the direction of the sheriff of the county, or
a referee, and that the plaintiff, or any other party, may become
a purchaser on such sale ; that the sheriff or referee execute a
deed to the purchaser ; that out of the proceeds of the sale, unless
otherwise directed, he pay the expenses of the sale, as provided
in section 1676 aforesaid, and that he pay to the plaintiff, or his
attorney, the amoimt of his debt, interest and costs, or so much
as the purchase money will pay of the same, and that he take the
receipt of the plaintiff, or his attorney, for the amount so paid,
and file the same with his report of sale, and that the purchaser
at such sale be let into possession of the premises on production
of the deed.

All surplus moneys arising from the sale of mortgaged prem-
ises, under any judgment, shall be paid by the sheriff or referee
making the sale within five days after the same shall be received
and be ascertainable, in the city of New York to the chamberlain
of the said city and in other counties to the treasurer thereof,
unless otherwise specially directed, subject to the further order
of the court, and every judgment in foreclosure shall contain
such directions, except where other provisions are specially made
by the court. 'No report of a sale shall be filed or confirmed,
unless accompanied with a proper voucher for the surplus moneys,
and showing that they have been paid over, deposited or disposed
of in pursuance of the judgment. The referee to be appointed
in foreclosure cases to compute the amount due, or to sell mort-
gaged premises, shall be selected by the court, and the court shall
not appoint as such referee a person nominated by the party to
the action or his counsel.

Rule 72 of 1858. Rule 73 of 1871. Rule 73 of 1874, amended. Rule 04
of 1877, -amended. Rule 61 of 1880. Rule 61 of 1884. Rule 61 of 1888.
Rule 61 of 1896.
See notes under Rule 60.

376 CouETs OF Kecokd. [Rule 62

CODE OF CIVIL PROCEDURE.

I§ 743-764: Care and disposition of money paid into court.
§ 1633. Disposition of surplus arising in a foreclosure action.

Surplus moneys on foreclosure.] Where sm-plus moneys, arising in an

action to foreclose a mortgage, after the death of the mortgagor, are deposited
with the county treasurer, all parties to the foreclosure action are entitled
to notice of an application for an order transferring the surplus moneys to
the Surrogate's Court. (Washington Life Ins. Co. v. Clark, 79 App. Div. 160;
Matter of Stilliwell, 139 N. Y. 337.)

RULE 62.

Sale of Lands in the Counties of New York and Kings, and the City of
Buffalo, under Judgment or Order.

Where lands iii 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 fore-
noon and three o'clock in the afternoon, unless otherwise specifi-
cally 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 New York, unless otherwise specific-
ally directed, shall take place at the Exchange Sales Rooms, now
located at No. Ill Broadway in the city of New York.

The Appellate Division of the Supreme Court in the fi-rst de-
partment 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.

Such sales in the city of Buffalo shall, on and after May 1,
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 regulations as the justices of the Supreme Court of the eighth
district shall establish.

Rule 73 of 1858, amended. Rule 74 of 1871. Rule 74 of 1874, amended.
Rule 65 of 1877, amended. Rule 62 of 1880. Rule 62 of 1884. Rule 62
of 1888, amended. Rule 62 of 1806, amended.

Eule 62] General Edles of Practice. 377

CODE OF CIVIL PROCEDURE.

§ 1342. Sa,l«s made — where — by whom — effect of conveyance.

§ 1243. Security ■ — may be required upon a sale by a referee.

§ 1244. The conveyance to state in the granting clause whose right, etc., in
the premises is sold.

§ 1384. Sale under execution — bow conducted.

§ 1385. Penalty for injuring the notice of sale.

§ 1386. The validity of tlie sale is not affected by the sheriff's default.

§ 1387. Purchases at such sales, by certain officers, prohibited.

§ 1388. When an execution is to be enforced by the under sheriff.

§§ 1430-1478. Sale, redemption and conveyance of real property — rights and
liabilities of persons interested.

§§ 1479-1485. Remedies for failure of title to real property sold, and to en-
force contribution.

§ 1546. Sale in partition — when interlocutory judgment must direct it.

§ 1560. When a sale may be directed, after interlocutory judgment, on com-
missioners' report.

§ 1575. Security taken back on a sale in partition to be in the name of the
county treasurer.

§ 1585. All securities in proceedings for partition to be taken in the name of
the county treasurer.

I 1622. Sale in action for dower.

§ 1626. Sale in action for foreclosure.

§ 1657. Sale in action for waste between ootenants.

§ 1676. On sale of real property in actions for foreclosure, dower and parti-
tion, officer selling to pay taxes, etc.

§ 1678. Sale, how conducted.

§ 1679. Purchases by certain officers prohibited.

§ 1823. Real property of decedent cannot be sold under execution against
executor — exception.

§ 1845. Effect on creditor's proceedings of application in Surrogate's Court
to sell real property.

§ 1874. Sale of interest in contract for purchase of land, in action by judg-
ment-creditor.

§ 1947. Sale of partnership property.

§ 2232. When a person holding over after sale is removable by summary
proceedings.

§l§ 2348-2364. Sale of real property of infant, lunatic, etc.

§§ 2388-2395. Sale on foreclosure by advertisement.

§ 2404. Surplus money on sale by advertisement to be paid into Supreme
Court.

§■§ 2405-2408. Application for distribution of surplus.

§§ 2761-2786. Sale in proceedings to dispose of real property of decedent, for
payment of debts.

378 CoTJETs OF Eecokd. [Rule 62

§ 3297. Fees of referee to sell real property.

§ 3307. Fees of sheriff on the sale of real 'property.

PUBLICATION — Time of.] A statute providing that before completing
and signing the report, the commissioners must publish, once in each week for
two weeks successively, a notice of a time and place when and where the
parties interested can be heard, held, to mean that there shall be two publica-
tions, one in one week and the other in the next week, and not that two weeks
must elapse between the first publication and the day designated for the
hearing. (Merritt v. Portchester, 8 Hun, 40 [1876].)

A notice of sale, under a judgment of foreclosure and sale, for the

twenty-eighth of December, duly published on the ninth, twelfth, sixteenth,
nineteenth, twenty-third and twenty-sixth of that month, is a publication " for
three weeks immediately previous to the time of sale, at least twice in each
week," within the meaning of this rule. (Chamberlain v. Dempsey, 13 Abb.
421 [Sp. T. 1862] ; S. C, 22 How. Prac. 356.)

When sufficient.] A notice of sale of real property in the city of New

York, under a decree of foreclosure, to take place May 20, 1881, was published
in two newspapers on April twenty-seventh (Wednesday), and thirtieth (Sat-
urday), May fourth ( Wednesday ) , seventh ( Saturday ) , eleventh ( Wednes-
day ) , fourteenth ( Saturday ) , and in one of them on ilay twentieth. It was
objected that there was but one publication during the week " immediately pre-
ceding the sale." Held, that the notice was sufficient. (Valentine v. ilcCue,
26 Hun, 456 [1882].)

Week defined.] A week is a definite period of time, commencing on
Sunday and ending on Saturday. (Steinle v. Bell, 12 Abb. Pr. [X. S.] 171.)

Notice of sale of real estate — need not be published in all the editions

of the paper issued on the days of publication.] (Eversen v. Johnson, 22
Hun, 115 [1880].)

Notice of sale.] As to what notice of sale must be given imder a

decree of foreclosure. (Gallup v. Miller, 25 Hun, 298 [1881].)

The title of the cause should be briefly stated in the notice.] (Ray v.

Oliver, 6 Paige, 480 [1837].)

Amendment of judgment — pending notice of sale.] The court has

power to amend the judgment of foreclosure while the notice of sale is being
published, and the sale will not be thereby rendered invalid. (Valentine v.
McCue, 26 Hun, 456 [1882].)

What publication is a newspaper.] A publication issuing two editions

daily, except Sunday, having a circulatiion in a city of 1,000, and elsewhere of
more than 4,000, which, although containing matter of special value to at-
torneys, bankers, commission merchants and real estate dealers, yet devotes
several columns to general advertising and to the publication of local and
other news of general interest, and is printed in sheet form, as newspapers
usually are, must be deemed a " newspaper " within the meaning of section
1434 of the Code of Cvil Procedure, prescribing the method for publishing
notice of sales of land by a sheriff, notwithstanding the fact that the publica-
tion is not sold by newsboys nor at newsstands, but only by subscription and

Kule 62] Geneeal Eules of Pbactice. 379

upon application at the office of the publisher. (Williams v. Colwell, 14 App.
Div. 26 [1897].)

SALE — Relative rights of purchasers.] Relative rights of purchasers at
sales under executions. (Terrett v. Brooklyn Improvement Co., 87 N. Y. 92
[1881].)

What title is acquired by the purchaser.] A purchaser in good faith,

on an execution sale, acquires no better title than the judgment-creditor would
have obtained had he purchased. (Clute v. Emmerich, 99 N. Y. 342 [1885].)

Code of Civil Procedure, § 1440, not applicable, when.] Section 1440 of

the Code of Civil Procedure providing for the repayment of the amount paid
upon a sale under execution where the title is adjudged void in an action
brought by the judgment-debtor, has no application to a case in which relief
is sought against the fraudulent act of the grantee. (Mclntyre v. Sanford, 89
N. Y. 634 [1882].)

• Duty to collect purchase price at time of sale.] It is the duty of the

sheriil in making a sale, to demand payment for property sold; if he is not
paid, it is his duty to avoid the sale and resell or postpone the sale and give
notice thereof. If he closes the sale and gives credit, or takes anything but
money, he is 'personally liable for the purchase price. (Robinson v. Brennan,
90 N. Y. 208 [1882].)

Incumbrances — leasehold property.] On sale of leasehold property,

taxes and arrears of rent should not be directed to be paid off as incumbrances.
(Stuyvesant v. Browning, 33 N. Y. Supr. Ct. [1 J. & S.] 203 [Gen. T. 1871] ;
contra, see Catlin v. Grissler, 57 N. Y. 374 [1874].)

Tliis rule applies to plaintiffs, mortgagees in possession. (Ten Eyck v.

Craig, 2 Hun, 452 [1874].)

Error in notice of sale.] An erroneous statement in the notice of sale

of matters not required by the statute to be stated, and which is calculated to
mislead and to prevent bidding, will, it seems, render the sale void, but not if
inserted by mistake and a correction be published with the notice before it can
be presumed to influence persons desiring to bid. (Hubbell v. Sibley, 5 Lans.
51 [1871].)

— Who may object to the manner of conducting a sale.] A party not in-
terested cannot object to the manner of conducting a judicial sale. ( Shuler v.
Maxwell, 38 Hun, 240 [1885].)

Judicial sale — when set aside.] A motion should not be granted to

set aside a judgment sale simply for the reason that a higher price might be
obtained upon a resale, unless it is apparent that there has been fraud or sur-
prise upon the sale. (McEwan v. Butts, 48 St. Rep. 312 [Sup. Ct. 1892].)

Opening sale discretionary — not appealable.] An order opening a

sale in a foreclosure and allowing a resale on the ground of inadequacy of
price, etc., is a matter of favor resting in discretion, and is, therefore, not
reviewable by the Court of Appeals. (Buffalo Savings Bank v. Newton, 23
N. Y. 160 [1861].)

Order setting aside sale and directing reference to ascertain equities of

parties.] An order made in a foreclosure suit, after judgment and sale, set-
ting aside the sale and ordering a reference to ascertain the equities of the

380 CouETs OF Recoed. [Eule 62

parties is not appealable to the Ck>urt of Appeals. (Dows v. Congdon, 28
N. Y. 122 [1863] ; Hale v. Clauson, 60 id. 339 [1875].)

When property should be sold as a whole.] Upon the sale of mort-
gaged property, which consists of more than one lot, and upon which is a
building which requires the use of all the land, tlie property should be sold
as a whole. (Goudert v. De Logerot, 30 N. Y. Supp. 114 [Sup. Ct. 1894].)

Position of an auctioneer at a judicial sale.] An auctioneer at a

judicial sale should not be interested in the sale as a party to the suit, un-
known to the bidders, and the purchaser at such sale may on that ground
avoid the sale without showing actual fraud or bad faith on the part of the
auctioneer, although his interest be only that of a tenant by the curtesy.
(Smith V. Harrigan, 27 Abb. N. C. 322 [Sup. Ct. 1891].)

Disposition of the percentage paid on a sale where the purchaser de-
faults after assigning his bid.] At a foreclosure sale where the highest bidder
having paid the referee the ten per cent deposit, assigns his bid to another
upon an agreement that such party will procure the balance of the purchase
price, which he fails to do, and the property is resold for enough to satisfy
the cla,im in full, and the first purchaser and the party to whom he assigned
his bid severally assign their interests in the deposit to different persons, the
assignee of the former is entitled to the deposit. (Flint v. George, 28 St.
Rep. 629 [Sup. Ct. 1889].)

Where remedy is by motion.] \ATiere a judgment erroneously provides

that a sale shall be made by a receiver, the remedy is by motion to correct
the judgment and not by appeal. (Cole v. Tyler, 65 N. Y. 73 [1875].)

Terms of — purchaser bound by.] (Hart v. Wandle, 50 N. Y. 381

[1S71].)

INVERSE ORDER OF ALIENATION — Right to a sale in.] The right
exists, where persons have liens upon separate lots covered by a mortgage, to
require that the lots be sold' in the inverse order of alienation. (Thomas v.
Moravia Machine Company, 43 Hun, 487 [1877] ; Van Slyke v. Van Loan, 26
id. 344 [1882].)

Limitation of the rule.] The equitable doctrine that, when premises

subject to a mortgage are conveyed in parts at different times, the parcels are
to be primarily charged with the payment of the mortgage debt in the inverse
order of alienation, is subject to qualifioation when the equities of a subsequent
grantee require it.

Where land is purchased subject to a mortgage covering it and other land,
and an amount of the consideration agreed to be paid therefor, equal to the
mortgage, is deducted from the purchase price because of the existence of the
mortgage, the portion of the mortgaged premises so sold becomes primarily
charged with the obligation of the mortgage. (Wood v. Harper, 9 App. Div.
229 [1896].)

Primary liability of land conveyed subject to the mortgage.] Where a

portion of mortgaged premises is conveyed subject to the mortgage, the
.crantee covenanting to pay the mortgage, a subsequent grantee, not covenant-
ing to pay the mortgage, whose deed refers to the conveyance assuming it,
thereby has notice that, by an agreement between the parties in interest, the

Eule 62] Geneeal Rules of Practice. 381

land fio conveyed is primarily liable for tlie payment of the mortgage, and he
is not in a position to assert the nile that mortgaged premises should be sold
in the inverse order of alienation. (Eyring v. Hercules Land Co., 9 App. Div.
306 [1896].)

Successive mortgages.] Parcels of land, held by successive alienees

subject to a lien on the whole, when resorted to for the satisfaction of such
general lien, must be sold in the inverse order of alienation, and the principle
is equally applicable to the ease of successive mortgages, as to that of succes-
sive conveyances of the fee, of parcels of the mortgaged premises. (Denton v.
Ontario County Nat. Bank, 77 Hun, 83 [1894].)

Of land out of the State.] The rule that under a mortgage foreclosure

sale the land must be sold in the inverse order of alienation holds good
although part of the land is in another State. (Welling v. Ryerson, 94 N. Y.
98 [1883].)

Rule one of equity only.] The rule that mortgaged premises are to be

sold in the inverse order of alienation is one of equity and yields to circum-
stances. (Bernhardt v. Lymburner, 85 N. Y. 172 [1881].)

Where surety and principal own separate, undivided shares.] Where

the mortgagors severally own separate, imdivided shares, and one is principal
and the other is surety, the share of the .principal should be sold, first. (Erie
Coimty Savings Bank v. Roop, 80 N. Y. 591 [1880].)

Sale valid although the pieces are sold in an improper order.] A fail-
ure to sell the piece of land, primarily liable for the debt does not render the
sale void, and the purchaser at the sale acquires a valid title to the property
purchased. (Jenks v. Quinn, 61 Hun, 427 [1891].)

NOTICE OF DEFECT — Purchaser— when chargeable with notice of ex-
isting conditions.] Where a mortgage is of a leasehold interest, and in the
notice of sale under judgment of foreclosure the lease is referred to, a pur-
chaser is chargeable with knowledge of the contents of the lease, and is sup-
posed to have made his bid in view of its provisions. (Riggs v. Pursell, 6S
N. Y. 193 [1876]; Kingsland v. Fuller, 157 id. 507 [1899].)

Assignment — when notice thereof to the mortgagor is unnecessary.]

No notice to the mortgagor of an assignment of a bond and mortgage is neces-
sary to protect the assignee thereof against a counterclaim in favor of the
mortgagor against the mortgagee, arising subsequent to the assignment. (Cen-
tral Trust Co. V. Weeks 15 App. Div. 598 [1897].)

Misdescription of an agreement in notice of sale.] A purchaser at a

sale in foreclosure is entitled to rely upon a description of an agreement affect-
ing the property referred to on the sale and in the notice of sale and is not
obliged to examine the instrument thus misdeseribed. (Kingsland v. Fuller,
31 App. Div. 913 [1898].)

Irregularities appearing on the face of the proceedings.] A purchaser

at a sale in partition is chargeable with notice of an irregularity in the inter-
locutory judgment consisting in its failure to provide for the pajonent of an
existing lien on the undivided share of one of the parties, where such irregu-
larity appears upon the face of the proceedings. (Kelly v. Werner, 34 App.
Div. 68 [1898].)

382 CoTJETs OF Eecoed. [Rule 62

Outstanding interests not referred to in judgment, but subject to which

the sale is made, afford no ground for refusing to complete the purchase.]

Where a mortgage which does not cover certain interests in the mortgaged
premises is foreclosed and a judgment is entered in the usual form without
referring to such outstanding interests, but notice thereof is given on the sale
which is made subject thereto, held, that the purchaser should be compelled to
complete his purchase. (Cromwell v. Hull, 97 N. Y. 209 [1884].)

Mortgagee purchasing with notice of an unrecorded deed.] A mort-
gagee purchasing at a foreclosure sale and conveying the land to a hona fide
purchaser with knowledge that the holder of an unrecorded deed was not a
party to the foreclosure action, will be compelled to axxjount to the latter.
The effect of filing a lis pendens is avoided by proof of notice of the unrecorded
deed. What evidence is required to charge a client with notice of facts known
to his attorney. (Slattery v. Schwannecke, 44 Hun, 75 [1887].)

RESALE — Must readvertise for.] When the time for selling, pursuant to
notice, has passed, and no valid sale has been made, or, if valid, the party
elects to disregard it, the officer cannot sell again without an order of the
court, unless he again advertises the sale, in which case no order is necessary.
(Bicknell v. Byrnes, 23 How. Pr. 486 [Sp. T. 1862].)

In mortgage foreclosure, private resale of property not authorized.

(Ely V. Matthews, 128 App. Div. 513.)

Resale discretionary — conditions of.] It is in the discretion of the

court whether or not to set aside a sale, and whether or not, as a condition of
the setting aside of the sale, the payment of the referee's and the auctioneer's
fees will be required, where a defendant in a foreclosure action has procured
a stay in order to fix the amount of an undertaking on appeal and a further
stay on condition of paying the costs of advertising, providing for payment
thereof on twenty-four hours' notice, and on notice has failed to make payment
and thereafter procured an extension of time to complete his undertaking,
which does not provide for a further stay, and before the justification was
completed a sale has been made. (Stephens v. Humphreys, 46 St. Eep. 646
[Sup. St. 1892].)

Not reviewable in the Court of Appeals.] An order granting or re-
fusing a resale of land is discretionary, and not reviewable in the Court of
Appeals. (C. L. Ins. Co. v. Bowman, 90 N. Y. 654 [1882]; Peck v. N. Y. k
N. J. R. Co., 85 id. 246 [1881]; Fisher v. Hersey, 8 N". y. 'WTcly. Dig. 513
[Court of Appeals, October, 1879] ; White v. Coulter, 3 N. Y. Sup. c't. [T. & C]
R. 608 [1874].) But is reviewable at the General Term. (Rogers v. Ives, 23
Hun, 424 [1881].)

When ordered.] A resale of premises under a decree of foreclosure

will be directed upon equitable terms when the first sale is made in such
manner as to prevent fair competition, or where for ajiy cause it would h"
inequitable to permit the sale to stand. (2 Ni Y. Wkly. Dig. 547 [Sup. Ct.
1876].)

Terms of such resale.] When a purchaser fails to complete his purchase

alleging objectio'ns to the title, the resale should be made upon the same terms
as the first one; and if materially different, the deficiency cannot be collected
from the purchaser on the first sale. (Riggs v. Pursell, 74 N. y. 370 [1878].)

Rule 62] General Eules of Practice. 383

Conditions imposed on granting a resale.] The Appellate Division will

not disturb the exercise by the Special Term of its discretion in refusing to
order a resale under a foreclosure judgment except upon condition that the
moving party should pay the costs and expenses of the sale and deliver an
agreement directing him to bid at least a certain sum, and that the original
sale should stand if upon the resale the party agreeing to bid such certain sum
failed to do so, or having bought the same, failed to pay. ( German- American
Bank V. Dorthy, 39 App. Div. 166 [1809].)

Resale ordered where a promised notice was not given.] Where the

property has been sold for the amount of the first mortgage, which was less
than the assessed value, without notice except by advertisement to a junior
mortgagee who had been promised that he should have notice before anything
vpas done, a resale will be ordered at his request, plaintiff not objecting, on
condition that the purchaser be reimbursed for expenses, and a bond given to
bidi more than the assessed value at the resale. (Kennedy v. Bridgman, 27
JXisc. Eep. 585 [1899].)

Sale under railroad mortgage not affected by the fraudulent default

of the directors.] When a sale under the foreclosure of a railroad mortgage
cannot be attacked because the directors were actuated by corrupt motives in
permitting a default to take .place in the payment of the bonds. ( Harpending
V. Munson, 91 N. Y. 650 [1883].)

Inadequacy of price, not a sufdcient ground.] Mere inadequacy of

price is not a sufficient ground to set aside a judicial sale of real estate, unless
it be so great as to shock the conscience of the court and raise the inference
cf imfaimess or fraud, or unless there are circumstances of mistake or sur-
prise; and a resale will not be ordered as a general rule upon an offer to
increase the price brought at the sale, without the support of some special
circumstances.

Where a person knowing that real estate was to be sold by virtue of a
judgment took no action whatever to have it bring any larger sum than it
was sold for, and gave no attention to the matter, he is not free from the
imputation of laches upon a motion made by him to set such sale aside. ( Wes-
son V. Chapman, 76 Hun, 592 [1894].)

When ordered for inadequacy of price.] A resale is not generally

ordered for mere inadequacy of price, but it will be where there has been any
surprise produced by the 'act of the person making it, or where the person
seeking to open the sale, having an interest, has been misled by the device or
concealment of the person making the sale. (Frances v. Church, Clark's Oh.
476.)

Will not be ordered merely because a higher price is anticipated on a

resale.] A sale under a judgment will not be set aside in the absence of
fraud, surprise or well-grounded misapprehensions, simply because a higher
price can be reasonably anticipated on a resale of the premises. (Kellogg v.
Howell, 62 Barb. 280 [Gen. T. 1872].)

Inadequacy of price and insanity of mortgagee not a ground for a

resale.] In a foreclosure action an order should not be granted allowing the
judgment and sale to stand, but directing the purchaser to account for profits

384 Courts of Kecoed. [Rule 62

from possession and a resale, merely because there is evidence that the price
was inadequate and that a mortgagee was insane at the time of the sale.
(Provost V. Roediger, 32 St. Re,p. 1101 [Sup. Ct. 1890].)

When sale under execution will be set aside for inadequacy of price.]

When a sale of real estate under an execution will be set aside because of the
inadequacy of the price paid. (Chapman v. Boetcher, 27 Hun, GOG [1882].)

Inadequacy of price.] Inadequacy of price itself may furnish ground

sufficient to justify suspicion of fraud or mistake, and to set aside a judicial
sale. (Arlington Square Savings Bank v. Cassidy, 5 N. Y. Wkly. Dig. 83 [Sup.
Ct. 1877].)

What constitutes laches and insufScient ground.] The petitioner did

not offer to bid for the property upon a resale any more than the price for
which it was sold, and did not show that any one would bid any more; also,
with knowledge of all the essential facts, it delayed for nearly two years before
making the application. In the meantime the property had gone into the
hands of a new corporation, which had expended large sums of money thereon,
had mortgaged the same to secure bonds, and had issued stock to a large
amount; so that if a resale were ordered it would be impossible to restore
the parties to be affected thereby to their former position, and irreparable
mischief might be done. Held, that the petitioner had no absolute legal right
to have the sale set aside; that the court below had discretion to deny the
application; that it did not appear it had abused its discretion, and, there-
fore, this court had no jurisdiction to review the order appealed from. ( F. L.
& T. Co. V. B. & M. T. Co., 119 N. Y. 15 [1890].)

Ordered — where facts exist, casting suspicion on the sale had.] A

court of equity will set aside a sale and order a resale, although fraud may
not be clearly established, where facts exist casting suspicion upon the fair-
ness of the sale. (Fisher v. Hersey, 78 N. Y. 387 [1879].)

An agreement to bid for another, when violated, is a ground for a

resale.] A resale should be directed in a foreclosure proceeding when plain-
tiff's agent, after arranging witli the party having an interest in the equity of
redemption to bid off the property for him at a certain price, and it is too
late for another arrangement to be made, informs the party that he intends to
bid for himself, which he does, and buys the property for a smaller amount
than that which he agreed to bid by the arrangement, and then states that
he has sold to a third person. (!>!. Y. Eastern Christian & Benevolent Assn. v.
Bishop, 28 St. Eep. 22 [Sup. Ct. 1889].)

Mistake of purchaser, justifying a resale.] A purchaser at a judicial

sale will be relieved from completing his purchase upon his giving indemnity
against the expenses of a resale where it appears that he had bid upon the
property and that it was struck down to him without his having seen the
notices of sale or the handbills circulated thereat, and where he claims to have
been mistaken in the location of the property and requested the auctioneer to
put the property up for sale again. (Vingut v. Vingut, 42 St. Eep. 787 [Sup.
Ct. 1891].)

Sale in parcels.] It is unnecessary when a resale of mortgaged prem-
ises is directed to be made in parcels that the notice of the resale should so
specify. (Hoffman v. Burke, 10 N. Y. Wkly. Dig. 347 [Gen. T. 1880].)

Eule 62] General Eules op Peactice. 385

" Difference and costs and expenses on the resale " — subsequent taxes

included within.] (Ruhe v. Law, 8 Hun, 251 [1876].)

Foreclosure of a railroad mortgage — when a sale, had under a decree

in, will not be set aside.] (Peck v. New Jersey & N. Y. R. R. Co., 22 Hun,

129 [1880].)
IRREGULAR SALE — Who may move to set aside an irregular sale.] An

action to set aside a judicial sale for irregularity cannot be maintained even
by one who was not a party to the original action. Every person whose rights
are injuriously affected by a judgment or proceedings under it, has the right to
move the court to set aside or amend them, although he is not a party to
the action. Relief against a judicial sale for irregularity merely, can be had
only by motion. (Gould v. Mortimer, 16 Abb. Pr. 448 [Sp. T. 1863] ; 26 How.
Prac. 167.)

Sale of corporate property not set aside on behalf of a minority stock-
holder.] A sale on foreclosure of corporate property should not be set aside
at the instance of the holder of only a small number of shares where he is the
only stockholder who seeks to avoid the transaction of which he complains and
made no complaint until after the sale, unless he is refused the fair value
of his share of the property. (Drake v. New York Suburban Water Co., 36
App. Div. 275 [1899].)

Sale void, when summons was served by publication and no property

was attached.] Where a sale is had under an execution upon a judgment
issued in an action against a, nonresident, where the summons was served
by publication and no attachment was issued, no title passes to the pur-
chaser. (McKinney v. Collins, 88 N. Y. 216 [1882]. See Code of Civil Pro-
cedure, § 707.)

Proper form of execution where an attachment has issued.] In an

action wherein an attachment had been issued upon the ground that defend-
ant, a resident of the State, had departed therefrom with intent to defraud
his creditors, or to avoid the service of a summons, the execution directed the
sheriff to collect the judgment out of the attached personal property, and, if
that was insufficient, out of the real estate. Held, that so far as the real
estate was concerned, the execution was void, and the sale under it conveyed
no title; that the provision of the Code of Civil Procedure (§ 1370, subd. 2),
prescribing the form of execution, was peremptory, and that the attached
real estate could not be resorted to until the remedy against the debtor's
personal property, both attached and unattached, had been exhausted. (Place
V. Riley, 98 N. Y. 1 [1885].)

Receiver of an insolvent corporation — sale of its assets without notice

to the Attorney-General — irregularity — how cured.] The omission of re-
ceivers of an insolvent corporation, appointed in proceedings taken for its
voluntary dissolution, to serve upon the Attorney-General notice of the ap-
plication for an order directing the sale of its property by them, is cured by
a subsequent order of the court, made upon due notice to the Attorney- Gen-
eral, confirming such sale, and directing the re-entry nunc pro tunc of the
order authorizing the sale.

386 CouETs OF Eecoed. [Eule 62

Upon such confirmation by the court the title of a purchaser at the sale
becomes complete, and it is immaterial that stockholders of the corporation
have received no notice of the application for the order of confirmation. (John-
son V. Kayner, 25 App. Div. 598 [1898].)

Irregular appointment of a referee to sell does not vitiate the sale.]

In an action to foreclose a mortgage in Kings county, all the parties appeared
save one, who was an absentee, and all of those appearing consented that
the sale be by a referee; and the judgment directed the sale to be so made,
the court holding that the consent of those appearing was a sufficient com-
plia.nee with the provisions of the act of 1870 (chapter 439), which requires
foreclosure sales in said county to be by the sheriff, unless all the parties to
the action consent that it may be made by a referee. Held, that if the court
erred, this did not render a sale by the referee void, and was not an objec-
tion to the title given on such sale. (Abbott v. Curran, 98 N. Y. 665 [1885].)

Order of confirmation cures the omission of " a portion of the " land

from advertisement of sale.] An omission from a referee's advertisement of
sale of a portion of the lands embraced in the action, and directed to be sold
by the judgment, does not vitiate a sale by iae referee of the omitted por-
tion, where, upon motion made, on due notice to all the parties interested,
the sale is confirmed and the irregularity does not constitute a defect in the
title acquired on such sale. (Woodhull v. Little, 102 N. Y. 165 [1886].)

Partition suit irregularly brought by the life tenant — the title ac-
quired at the sale is good.] Although a tenant for life may not maintain
partition because not a joint tenant, or ten?.nt in common with the remain-
dermen, yet the defect is not jurisdictional, and a decree of sale in such an
action is not absohitely void; it may onlj' be corrected on appeal. As against
those made parties to the action, a sale imder the decree gives a good title.
(Cromwell v. Hull, 97 N. Y. 209 [1884].)

Partition sale — purchase by a guardian in his own nome.] A pur-
chase of lands of infants at a partition sale by the guardian in his own name
is presumptively void, and the burden rests upon one claimng under him to
show that the purchase was for the benefit of the infants. (O'Donoghue v.
Boies, 150 N. Y. 87, affg. 92 Hun, 3 [1899].)

Who may attack an irregular sale.] Semble, that any person inter-
ested in premises which have been sold in foreclosure proceedings may take
advantage of such an irregularity as the failure to publish the notice of
sale, by moving to set the sale aside on that ground, but such motion must
be made within a reasonable time, or the irregularity will be deemed to have
been waived, and a delay of nineteen years is imreasonable. (Farrell v.
Noel, 17 App. Div. 319 [1897].)

ADJOURNMENT — The attorney can postpone a sale.] An adjournment
may be made by plaintifl"s attorney in a foreclosure sale. Code Civil Pro-
cedure, § 1678.)

Sale in violation of a referee's promise to adjourn it.] A sale in an

action brought to foreclose a mortgage should be controlled solely by the
referee appointed to conduct it; and where it appeared that the referee,
after informing the attorney for the defendants that the sale would

Eule 62] General Rules of Peactice. 387

be adjourned, then proceeded, at the instance of the plaintiff's attorney, and
in violation of his promise, to sell the property, the court set the sale aside
upon proof that it prejudiced the rights of the defendants, and appointed
a referee to take an account of the purchaser's payments and expenditures
upon, and his receipts from, the property, and directed that any balance found
to be due to the purchaser be paid to him from the proceeds of the resale,
before payment of the mortgage. (Angel v. Clark, 21 App. Div. 339 [1897].)

Stay of proceedings — effect of.] WTiere, after a referee has been ap-
pointed to sell real estate in pursuanec of a judgment of foreclosure, and a
notice of sale has been duly published, the defendant serves an undertaking
to stay proceedings upon appeal in pursuance of section 341 of the Code of
Procedure, the plaintiff is not required to abandon the proceedings instituted
by him, but may adjourn the sale until it can be determined whether or not
the sureties will justify. (Ward v. James, 8 Hun, 526 [1876].)

Auctioneer's fees on.] No fees can be allowed to an auctioneer for

services rendered upon the adjournment of a sale by a referee. A referee is
only entitled to receive the same fees for selling real estate as by law is
allowed to a sheriff, (/b.)

Adjournment — day to which it is had — to be named.] Upon an ad-
journment the day on which the sale is to be had should be named, but when
the day is not named, through the default of the defendant, the sale will not
be set aside. (La Farge v. Van Wageneu, 11 How. Pr. 54 [Sp. T. 1857].)

TAXES — Who liable for taxes, etc.] Who is liable on a mortgage fore-
closure for the payment of ta.xes and assessments. (Mutual Life Ins. Co. v.
Sage, 28 Hun, 595 [1883].)

Terms of sale stating what taxes and assessments would be allowed.]

The provision in terms of sale, under which property is sold, in an action of
partition, that " all taxes and assessments, duly confirmed and payable, which
at the time of this sale are liens or incumbrances upon said premises, will be
allowed by the referee out of the purchase money," refers only to those
taxes and assessments, duly confirmed and payable, which were liens upon
the premises on the day of the auction sale. (Ainslee v. Hicks, 13 App. Div.
388 [1897].)

Agreement that a disputed assessment shall not be paid out of the

proceeds — the municipality cannot object.] Where all the parties interested
in a foreclosure action, including the pirrchaser at the sale, agree that the
disputed assessment shall not be paid out of the proceeds of the sale, an
order to that effect may properly be made, notwithstanding the objection of
the municipality which imposed the assessment. (Morgan v. FuUerton, 9
App. Div. 233 [1896].)

PURCHASER RELEASED — When a party is entitled to be released and
have the sale set aside.] Where D. purchased at a sale, on execution, all the
right, title and interest of T. in certain real estate, misled by the representa-
tion of the creditor's attorney that T. had a good title, and afterwards dis-
covered that T. had conveyed the property prior to the docketing of judgment,
held, that D. was entitled, on motion, to have the sale set aside, and to be
released from his purchase. (Dwight's Case, 15 Abb. Prac. 250 [Gen. T. 1862].
See, also, German Savings Bank v. Muller, 10 Wkly. Dig. 67 [Gen. T. 1889].)

388 CouETs OF Kecoed. [Rule 62

Want of authority in attorneys.] The plaintiff and several of the de-
fendants in an action of partition were nonresidents of the United States.
The nonresident defendants appeared by attorneys, but there was nothing in
the judgment-roll showing the authority of such attorneys to appear for
them.

The plaintiff's attorney died and an order was made substituting another
attorney, but, so far as the record showed, without the consent of the plain-
tiff. This attorney died, and another attorney assumed to act for the plain-
tiff without any order of substitution.

Held, that a purchaser upon the sale should not be compelled to take the
title. (JIcKenna v. Duffy, 64 Hun, 597 [1892].)

Error in describing the owner of the equity of redemption in the sum-
mons.] Where the owner of the equity of redemption who did not appear
in the action, is designated in the summons and complaint as Emma J. Stock-
ton, whereas her name was in fact Mary J. Stockton, and before the entry of
judgment an ex parte order is entered correcting the error, but no amended
or supplemental summons served, nor any amended notice of pendency of
action filed, a purchaser at the sale had under the judgment does not acquire
a marketable title, notwithstanding that the owner of the equity of redemp-
tion appeared in the surplus money proceedings. (Stuyvesant v. WeU, 41
App. Div. 551 [1889].)

Sale subject to a mortgage already in judgment — purchaser relieved.]

Where, under a decree for the foreclosure of a si'cond mortgage, by the
terms of sale, as read by the auctioneer and signed by the purchaser, "the
property is sold subject to a first mortgage of $5,000, due September, 1888; "
and it appears that at the time of the sale the prior mortgage was in pro-
cess of foreclosure, and a decree for the foreclosui-e thereof and the sale of
the premises had actually been entered, before the time at which the pur-
chaser was to take his deed, the purchaser is entitled to be relieved from hia
purchase. (Bradley v. Leahy, 54 Hun, 390 [1889].)

Purchaser entitled to a good title.] A purchaser at a foreclosure sale,

not put upon his guard by some prior notice, may insist upon a good title,
and will not be required to pay the purchase money and accept the deed
where there is any serious defect in the title, unless it is remedied, although
such defect was one existing prior to the giving of the mortgage of which
the equity of redemption was foreclosed; but where he pirrchases with knowl-
edge of the defect, its existence will not justify him in refusing to complete
the purchase. (Fryer v. Rockefeller, 63 N. Y. 268; Jordan v. Poillon, 77 id.
518 [1879].)

Purchaser is entitled to a marketable title.] The purchaser of land at

a judicial sale is entitled to a marketable title; the court cannot make a
doubtful title good by passing upon an objection depending on a disputed
question of fact or a doubtful question of law, in the absence of the party
in whom the outstanding right is vested. (Fleming v. Burnham, 100 N. Y.
1 [1885].)

Marketable title — curing defects.] A purchaser at a partition sale is

entitled to demand a marketable title, i. e., one free from a reasonable doubt

Eule 62] General Eules oe Pkactice. 389

as to its validity. If an essential act has been omitted or nnseasonably
taken in the action which may render the judgment ineffectual as to any
of the parties in interest, it is the duty of plaintiff to take the proper steps
for curing the defects before he can be heard upon a motion to compel the
the purchaser to complete his purchase. (Crouter v. Crouter, 133 N. Y. 55
[1892].)

Defect of title through nonjoinder of parties.] When a purchaser at

a sale under a foreclosure will not be compelled to complete his purchase be-
cause of the nonjoinder of parties. (Dodd v. Neilson, 90 N. Y. 243 [1882]. 1

Delay in perfecting defective titles excuses purchasesr from complet-
ing the sale.] When purchasers refusing to complete a sale, because of a de-
feet in the title, will be excused from completing it, although the title is
sebsequently perfected, because of delay in perfecting it. (Rice v. Barrett, 99
N. Y. 403 [1885].)

Unpaid transfer tax.] A purchaser at a foreclosure sale cannot be

comipelled to complete where the sale was of the entire title and a devisee
of the owner of the equity of redemption, who was not a relative, has not
paid the transfer tax, as in such case the tax is a lien which renders the title
marketable. (Kitching v. Shear, 20 Misc. 43H [1899].)

Right of way over the land.] The title to a lot bounded on a street,

which, by legislative act, is moved ten feet after the conveyance by the orig-
inal owner, is not marketable, where it appears that various grantees had or
may claim the easement or right of way over the ten-foot strip of the former
highway. (Scripture v. Morris, 38 App. Div. 377 [1899].)

Want of a provision in a judgment of partition for unknown remain-
dermen.] Where the title was derived through a will which created a trust
for two lives with remainder to the children then living and the descendants
of such as may then be dead, a marketable title is not furnished by a judg-
ment in an uncontested partition, commenced before the termination of the
trust, which contains no provision for the benefit of unknown owners or
after-born children, and the purchaser cannot be required to complete. (Smith
V. Secor, 157 N. Y. 402, affg. 31 App. Div. 103 [1898].)

Purchase under an honest misapprehension.] In judicial sales the

utmost fairness will be observed, and the purchaser will not be compelled
to complete his purchase when he has bid at the sale under an honest mis-
apprehension, and has subsequently discovered that he has not bought the
property for which he supposed he was bidding, and at once applies for relief.
(Dimn V. Herbs, 56 Hun, 457 [1890].)

^Judicial sale — cannot be enforced with deduction from price for

defect.] Purchase at a foreclosure sale — the court cannot enforce it as to
part, with a deduction from the price for the residue as to which the title is
defective. (Thompson v. Schmeider, 38 Hun, 504 [1886].)

Premises destroyed by fire.] When between the time of the purchase

and that at which the purchaser is entitled to a deed, the premises are de-
stroyed by fire, the purchaser will be relieved from his purchase. It is other-
wise where the damage is slight. (Aspinwall v. Balch, 7 Daly, 200 [Sp. T.
1877].)

390 CouETs ov Eecoed. [Sule 63

Destruction of premises before the closing of the sale.] Where, after

the purchaser at a partition sale has signed a memorandum of sale and paid
ten per cent of the purchase price, but before the date fixed for the closing of
the sale, a building situate upon the premises is destroyed by fire, thus caus-
ing a depreciation in the rental value of the property of from eighty to
ninety-six dollars per year, and the local authorities forbid the erection of
another building to talce tlie place of the one so destroyed, the purchaser
should not be compelled to complete his purchase. (Harrigan v. Golden, 41
App. Div. 423 [1899].)

NOT RELEASED — Creditor's suit — based on an order directing a pur-
chaser at a judicial sale to pay damages.] An order directing a purchaser at
a judicial sale to pay the damage resulting from his failure to complete the
same is to be regarded as a judgment and is a sufficient basis for a creditor's
suit. (Lydeclce v. Smith, 44 Hun, 454 [1887].)

Gold clause in mortgage not a defect in title.] The existence in a

mortgage of a clause requiring the mortgage debt to be paid in gold, will not
relieve a purchaser of the property at a receiver's sale from the duty of
completing the purchase. (Blanck v. Sadlier, 153 N. Y. 551 [1897].)

Unsatisfied mortgage apparently barred by the statute.] The exist-
ence, unsatisfied of record, of a mortgage on property which is the subject of
an action of partition, is not a tenable objection to the title, in the absence of
proof tending to rebut the statutory presumption of payment, especially
where the surviving mortgagee makes affidavit that the mortgage was paid
shortly after it became due. (Paget v. Melcher, 42 App. Div. 76 [1899].)

Presumption that judicial proceedings are regular.] There always

exists a presumption in favor of the regularity of judicial proceedings, which
is strengthened by lapse of time, and which should not be lightly disregarded
when such proceedings are attacked collaterally on a technical point of
practice. (Lowerre v. Owens, 14 App. Div. 215 [1897].)

Order for publication of summons having a court caption.] Where an

order for the publication of a summons, which is required by the Code of
Civil Procedure to be made by a judge, was presented to a judge while he was
holding Chambers and Special Term for the hearing of non-enumerated motions,
and was signed by him with his initials, coupled witli a direction for its entry,
■it was held, that, notwithstanding the fact that the order had a Special Term
caption and used the word " court " in the body thereof, it would be presumed
that it was made by the judge, as a judge, and not as the embodiment of the
court held by him. {lb.)

Failure to file report of sale.] The deed of a referee made upon a

sale in foreclosure passes the title to the purchaser, notwithstanding the fact
that the referee fails to file any report of sale, and that there is no proof that
due notice of the sale was published as required by law. (Farrell v. Xoel, 17
App. Div. 319 (1897].)

The purchaser may stand upon referee's deed.] The grantee in

such a deed may rely thereon, and the burden rests upon a person attacking
his title to show that the notice of sale was not properly published. (/?).)

——Purchaser not relieved by a mere possibility of failure of title.] A
purchaser at a partition sale will not be compelled to accept a doubtful title.

Eule 62] Geneeal Eules of Practice. 3&1

but a mere possibility that he may be disturbed will not justify a refusal to
accept a title. What evidence of the release of a condition is sufficient to
make the title good. (Post v. Bernheimer, 31 Hun, 247 [1883].)

A defect must be substantial.] A purchaser at a judicial sale cannot

reject the title unless the defect is a substantial one. A defect resting upon
a mere contingency is not sufficient. (Oakley v. Briggs, 44 St. Rep. 397 [Sup.
Ct. 1892].)

Marketable title — a mere possibility of defect does not affect it.] A

purchaser at a judicial sale is entitled to a marketable title, that is, one free
from reasonable doubt. He will not be compelled to take title where a doubt-
ful question of fact, relating to an outstanding right, is not concluded by the
judgment under which the sale was made.

If, however, the existence of the alleged fact, which is claimed or supposed
to constitute a defect in or cloud upon the title, is a mere possibilitj', or the
alleged outstanding right is but a very improbable or remote contingency, the
court may, in the exercise of a sound discretion, compel the purchaser to
complete his purchase. (Cambrelleng v. Purton, 125 N". Y. 610 [1891]. See
Daaa v. Jones, 91 App. Div. 496; Marshall v. U. S. Trust Co., 93 App. Div.
479.)

Title not unmarketable because a turnpike road once crossed the land.]

A purchaser will not be relieved from completing a purchase at a judicial sale
|by the fact that a map of a turnpike company included a part of the premises,
the road of such turnpike company having been discontinued in 1810, and no
claim having been made in its behalf since such time nor substantiated by
other records. (Oakley v. Briggs, 44 St. Rep. 397 [Sup. Ct. 1892].)

Sale of right, title and interest only.] A purchaser at a foreclosure

sale cannot be relieved on the ground of a defective title simply because only
the right, title and interest of the mortgagor was tendered where only the
right, title and interest of the mortgagor was offered for sale. (Van Rens-
selaer V. Bull, 43 St. Rep. 340 [Sup. Ct. 1891].)

Purchaser not excused by a failure to appoint committees for lunatic

defendants.] Purchaser at a foreclosure ' — when he will be compelled to com-
plete the purchase, although two of the defendants were lunatics, for whom no
committees had been appointed. (Prentiss v. Cornell, 31 Hun, 167 [1883].)

Purchaser at judicial sale not relieved because of irregular service

where jurisdiction is obtained.] Where, in tho service of summons by publica-
tion, defects exist in the notice attached to the summons which do not, how-
ever, prevent the court from acquiring jurisdiction, a purchaser at a judicial
sale had in such action will be required to accept the title (Loring v. Binney,
38 Hun, 152 [1885].)

Partition — erroneous construction of a will, not objected to.] A pur-
chaser at a partition sale will not be relieved from completing upon the
ground that the decedent's will, through whom all the parties claimed title,
was erroneously construed, where it appears that the question was fairly pre-
sented for litigation, and that there was no person having any possible
interest in the title who was not made a party to the action. (Brown v.
Mount, 38 App. Div. 440 [1899].)

392 CouETS OF Eecoed. [Kule 62

Purchaser not relieved from his purchase on account of defects of title

of which he had notice.] It is a well-settled rule that a purchaser at a mort-
gage foreclosure sale will not be relieved on account of apparent defects in
the property, or of defects in the title of which he had notice, and in refer-
ence to which he made his bid.

Where an action is brought to foreclose a mortgage, and prior to the ren-
dering of any decision therein, one of the defendants, who was the owner of an
undivided interest in the premises covered by the mortgage, dies, and her heirs
or devisees are not brought in as parties defendant, a judgment in the action
against her is wholly without authority, and her estate in the premises sought
to be foreclosed is wholly unaffected thereby. (Stephens v. Humphreys, 73
Hun, 199 [1893].)

A slight variation in measurement is not a substantial defect.] A

variation of one-half inch in a distance of 141 feet does not constitute a sub-
stantial defect in the title, where it is not disputed that the purchaser will
obtain a good title to all property included within the boundaries as de-
scribed in the advertisement of sale. (Merges v. Ringler, 34 App. Div. 415,
affg., 24 Misc. Rep. 317 [1898].)

Encroachment of a wall on adjoining land.] A purchaser will not be

relieved because an old building on the premises encroaches on the street to
such a slight extent that it is not probable tliat the city would raise an objec-
tion, and the city cannot, under the statutory provision, be allowed to remove
the wall. (Merges v. Ringler, 34 App. Div. 415, affg. 24 Misc. Eep. 317
[1898]; Harrison v. Piatt, 35 App. Div. 533 [1898].)

Title acquired, good, although a party is allowed to come in and defend

after the sale and succeeds.] A purchaser acquires a good title where the
proceedings are regular, although after a conveyance to the purchaser a defend-
ant is allowed to come in and defend as authorized by the Code ( § 445 ) , and
succeeds in his defense. (Place v. Riley, 98 N. Y. 1 [1885].)

Foreclosure by advertisement.] The failure of the purchaser, at a sale

under the foreclosure of a mortgage by advertisement, to file the affidavits of
sale, which was made in due form, does not affect her title. (Matter of Law-
son, 42 App. Div. 377 [1899].)

Defective letters of administration.] Defect in granting letters of ad-
ministration does not impair the title acquired under a sale on an action prose-
cuted by an administrator as such as plaintiff. (Abbott v. Curran, 98 N. Y.
665 [1885].)

Void process.] Under a void process no title can be acquired. (Place

V. Riley, 98 N. Y. 1 [1885].)

Revenue stamps must be aflBxed to referee's deed.] The purchaser at

a judicial sale is entitled to a deed which will defend his title in any tribunal
in which it is attacked or where he is called upon to assert it, and may re-
quire the referee to affix the revenue stamps required by the War Tax Act.
(Loring v. Chase, 26 Misc. Rep. 318 [1899].)

Judgment in partition conclusive where all parties in interest are

brought in.] Where all the parties interested in the property have been made
parties to the partition action, the judgment therein, while unreversed, is con-
clusive in support of its validity (Butler v. Butler, 41 App. Div. 477 [1899].)

Eule 62] General Eules of Practice. 393

Remedy where the purchaser fails to complete the purchase.] Whether

rthe court will compel a purchaser at a sale in foreclosure to complete the pur-
chase or direct a resale to be had rests largely in its discretion; the remedy
for the failure of the purchaser to comply with an order requiring her to com-
plete the purchase is by contempt proceedings. (Burton v. Linn, 21 App. Div.
609 [1897].)

Practice where the purchaser fails to pay the ten per cent.] Where a

purchaser upon a sale, had under an interlocutory judgment in an action for
partition neglects 'to pay ten per cent, of the purchase price as required by
the terms of the sale, and there has been no resale, the proper practice is to
have the report of sale confirmed, to enter final judgment under section 1577
of the Code of Civil Procediure, and to tender a deed to the purchaser. It is
only by this method that he can be placed in entire default.

There is no authority to make a tender of a deed until the confirmation of
the report of sale and the entry of judgment. (Latourette v. Latourette, 25
App. Div. 145 [1898].)

Assignee of bid — when he may be compelled to complete the pur-
chase.] One who purchases of the vendee, at a sale in partition, his bid, re-
ceives an assignment of the same in writing, requests the deed, and, upon sub-
sequently asking to be relieved from taking title because of an alleged incum-
brance, invites the institution of a proceeding by which he hoped to obtain an
adjudication so relieving him, submits himself to the jurisdiction of the court
by reason of his interference with the proceeding, and may be compelled to
complete the purchase. (Archer v. Archer, 155 N. Y. 415 [1898].)

Compensation for immaterial defects.] Where the defects are not

sufiicient to authorize a rejection of the title, the court, in compelling perform-
ance, may allow compensation for the immaterial defects which appeared.
(Merges v. Ringler, 34 App. Div. 415, aflfg. 24 Misc. Eep. 317 [1898].)

DOWER — Effect of a sale in reviving right of dower in some cases.]
Where a deed or .mortgage, executed by a husband and wife, conveying land
owned by the husband, is defeated by a sale on execution under a prior judg-
ment, the wife is restored to her original position, and may, after her hus-
band's death, recover dower in the lands. (Hinchliffe v. Shea, 103 N. Y. 153
[1886].)

RECORD — Effect of recording assignment of mortgage.] The record of
the assignment of a mortgage is notice to all persons of the assignee's rights
as against any subsequent acts of the mortgagee aflfeoting the mortgage, and
protects the assignee against a subsequent unauthorized discharge of the mort-
gage by the mortgagee. (Larned v. Donovan, 155 N. Y. 341 [1898].)

The provision (1 R. S. 763, § 41] that "the recording of an assignment

of a mortgage shall not be deemed, in itself, notice of such assignment to a
mortgagor, his heirs or personal representatives, so as to invalidate any pay-
ment made by them, or either of them, to the mortgagee," has no application
to an action by the purchaser of mortgaged premises to remove the cloud of a
recorded assignment of the mortgage, where, although the mortgagee had
undertaken to satisfy the mortgage after its assignment and before the plain-
tiff's purchase of the premises, there is no evidence that the mortgagor made

394 CouETs OF Eecoed. [Kule 62

any payment to the mortgagee, or gave him any consideration, for the satisfac-
tion of the mortgage. (lb.)

For what necessary.] One who purchases land from a mortgagee

thereof, when the mortgage is on record, without making inquiry or requiring
the production of the mortgage or of the note which it was given to secure,
is not a iona fide purchaser as against a prior assignee of the mortgage, al-
though the assignment was not recorded, since it is not necessary to record an
assignment of a recorded mortgage as against a subsequent purchaser of the
mortgaged premises, but only as against a subsequent purchaser of the mort-
gage itself. (Curtis v. Moore, 152 N. Y. 159 [1897].)

Purchase of land from the mortagee after the assignment of the mort-
gage.] The assignee of a recorded mortgage upon real estate which was con-
veyed by the mortgagor to the mortgagee after an assignment of the mortgage,
has a valid lien as against a purchaser of the land from the mortgagee who
took without notice of the assignment, notwithstanding the conveyance to the
mortgagee as well as the conveyance from the mortgagee to the purchaser
were recorded before the assignment was placed on record. (Curtis v. Moore,
152 N. Y. 159 [1897].)

Recording a mortgage in a deed book.] The record of a mortgage in a

deed book is ineffectual to charge a bona fide purchaser of the mortgaged prop-
erty with constructive notice of the existence of the mortgage. (Howells v.
Hettrick, 13 App. Div. 366 [1897].)

Assignment of mortgage acknowledged before one of the assignees —

record thereof is invalid.] The acknowledgment by a mortgage of an assign-
ment of the bond and mortgage before one of the assignee's is a nullity, and
the record of the assignment is invalid and does not constitute constructive
notice of its existence. (Armstrong v. Combs, 15 App. Div. 247 [1897].)

The failure to affix stamps required by the Revenue Law.] A record-
ing officer in the State of New York has no power to refuse to accept an instru-
ment entitled to record under the laws of that State, because of the failure
to affix sufficient revenue stamps thereto. (People ex rel. Brewing Co. v.
Fromme, 35 App. Div. 459 [1898].)

DEFICIENCY — Judgment for deficiency against legal representatives.] If
the mortgagor and obligor dies before the foreclosure of the mortgage, judg-
ment for any deficiency may be recovered against his legal representatives in
the foreclosure action. (In re Glacius v. Fogel, 88 N. Y. 434 [1882].)

WARRAMTY — In prior deed — right of a purchaser at a foreclosure sale
to recover thereon.] As to the right of a purchaser at a sale on foreclosure
to recover damages for a breach of a covenant of warranty contained in the
deed conveying the property to the mortgagor. (Mygatt v. Coe, 44 Hun, 31
[1887]; S. C, 124 N. Y. 212 [1891].)

SENIOR INCUMBRANCERS — Made parties to a foreclosure, may demand
foreclosure of senior mortgage.] Action to foreclose a mortgage. Senior
incumbrancers may be made parties defendant. Right of such an incum-
brancer to demand a foreclosure of his mortgage as a counterclaim. (Metro-
politan Trust Co. V. Tonawanda Valley Railroad Co., 43 Hun, 521 [1887].)

See Prior Liens, ante, under Rule 60.

Eule 63] General Eules of Peaotice. 395

ADVERSE POSSESSION — Title founded on, sufficient.] When a pur-
chaser of real estate at a judicial sale will be compelled to accept a title
founded on adverse possession. (Ottinger v. Strasburger, 33 Hun, 466 [1884].)

When a purchaser will not be compelled to accept a title based

thereon.] A purchaser at a sale in partition will not be compelled to take
a title based on adverse possession to defend which he would be obliged to
resort to parol evidence. (Gorman v. Gorman, 40 App. Div. 225 [1899].)

TITLE — Acquired on a mortgage foreclosure sale.] The effect of a fore-
closure deed, as determined by the statute, is to vest in the purchaser thj
entire interest and estate of the mortgagor and mortgagee as of the date of the
mortgage and unaffected by subsequent incumbrances and conveyances by the
mortgagor. (Rector, etc., Christ Protestant Episcopal Church v. Mack, 93
N. Y. 488 [1883]; Batterman v. Albright, 122 id. 484 [1890]; McFadden v.
Allen, 134 id. 489 [1892].)

VOID PROCESS — Bona fide purchaser under.] A bona fide purchaser
acquires no title to land sold under a void process, and stands in no better
position than one purchasing with full knowledge of the invalidity. (Place v.
Riley, 98 N. Y. 1 [1885].)

NOTARY — What notary cannot be referee.] The notary before whom the
affidavit on which application for a reference is based was verified, the court
cannot appoint as the referee to sell. (Stewart v. Bogart, 2 Law Bulletin,
94 [1880].)

HAMILTON COUNTY — Notices in — in what newspapers published.] By
chap. 202, Laws of 1873, all legal notices in the county of Hamilton are to
be published in the Hamilton County Journal and the Hamilton County
Democrat.

NEW YORK CITY — Fees on sale.] Sales of real estate hereafter made
in the city and county of New York, under the decree or judgment of any
court, may be made by the sheriff of said city and county, or by a refereo
appointed for that purpose by such judgment or decree, but when any sale
is made by any officer other than the sheriff, no greater sum shall be charged
or allowed as fees than as prescribed in section 2 of this act. (Laws of
1874, chap. 192, § 1. See Keim v. Keira, 43 App. Div. 88 [1899]; Code of
Civil Procedure, § 3307, subd. 11; also § 3308.)

RULE 63.

Mortgage and Assignments to be Filed or Recorded before Conveyance —
Expenses Allowed in Costs.

Whenever a sheriff or referee sells mortgaged premises, under
a decree or order, or judgment of the court, it shall be the duty
of the plaintiff, before a deed is executed to the purchaser, to file
such mortgage and any assignment thereof in the office of the
clerk, unless such mortgage and assignments have been duly
proved or acknowledged, so as to entitle the same to be recorded ;

396 CouETs OF Kecoed. [Rule 64

in which case, if it has not been already done, it shall be the duty
of the plaintiff to cause the same to be recorded, at full length,
in the county or counties where the lands so sold are situated,
before a deed is executed to the purchaser on the sale ; the expense
of which filing or recording, and the entry thereof, shall be al-
lowed in the taxation of costs; and, if filed with the clerk, he
shall enter in the minutes the iiling of such mortgage and assign-
ments, and the time of filing. But this rule shall not extend to
any case where the mortgage or assignments appear, by the plead-
ings or proof in the suit commenced thereon, to have been lost or
destroyed.

See notes under Rule 62.

Rule 75 of 1858. Rule 76 of 1871. Rule 76 of 1874. Rule 67 of 1877,
amended. Rule 63 of 1880. Rule 63 of 1884. Rule 63 of 1888. Rule 63
of 1896.

EULE 64.

Application for Surplus Moneys — Notice Thereof — Reference — Searches —

Unsatisfield Liens.

On filing the report of the sale, any party to the suit, or any
person who had a lien on the mortgaged premises at the time of
the sale, tipon filing with the clerk where the report of sale is
filed a notice, stating that he is entitled to such surplus moneys
or some part thereof, and the nature and extent of his claim,
may have an order of reference, to ascertain and report the
amount due to him, or to any other person, which is a lien upon
such surplus moneys, and to ascertain the priorities of the several
liens thereon ; to the end that, on the coming in and confirmation
of the report on such reference, such further order may be made
for the distribution of such surplus moneys as may be just. The
referee shall, in all cases, be selected by the court. The ovnier of
the equity of redemption, and every party who appeared in the
cause, or who shall have filed a notice of claim with the clerk,
previous to the entry of the order of reference, shall be entitled to
service of a notice of the application for the reference, and to at-
tend on such reference, and to the usual notices of subsequent pro-
ceedings relative to such surplus. But if such claimant or stich
owner has not appeared, or made his claim by an attorney of this
court, the notice may be served by putting the same into the post-
office, directed to the claimant at his place of residence, as stated

Hule 64] General Eules of Practice. 397

in the notice of his claim, and upon the owner in such manner as
the court may direct. All official searches for conveyances or
incumbrances, made in the progress of the cause, shall be filed
with the judgment-roll, and notice of the hearing shall be given
to any person having or appearing to have an unsatisfied lien on
the moneys in such manner as the court shall direct ; and the party
moving for the reference shall show,' by affidavit, what unsatisfied
liens appear by such official searches, and whether any, and what
other unsatisfied liens are known to him to exist.

Eule 76 of 1858, amended. Rule 77 of 1871. Rule 77 of 1874, amended.
Rule 68 of 1877, amended. Rule 64 of 1880. Rule 64 of 1884. Rule 64
of 1888, amended. Rule 64 of 189€.

See notes under Rule 62.

CODE OF CIVIL PROCEDURE.

§§ 743-754. Money paid into court — care and disposition thereof.

§ 1633. Disposition of surplus arising on the sale in a foreclosure action.

LIENS — Nature of.] The liens referred to in the rule are those which
subject the estate to he sold under execution, without any further intervention
of the court. Claims, however equitable, which have not matured into liens
cannot be taken into consideration. (Husted v. Dakin, 17 Abb. 137 [Gen. T.
1857]; King v. Selby, 10 How. Prac. 333 [Sp. T. 1854].)

Liens determined by date of foreclosure sale.] The rights, as between

the holder of a sheriflf's certificate of sale, the time to redieem from which, by
the owner of the equity of redemption, has not expired, and a second mort-
gagee, whose mortgage is not yet due, will be deterjuined as of the d'ate of the
foreclosure sale. (Elsworth v. Woolsey, 19 App. Div. 385 [1897].)

Judgment creditor's lien.] Judgment creditors of a grantor of real

estate, who has conveyed the same in fraud of his creditors, have, by virtue of
their judgments, liens upon the premises so conveyed, which are entitled to
priority in the order of time in which their respective judgments are docketed,
and are not affected by the order in which suits to set aside such fraudulent
transfer are instituted. (Wilkinson v. Paddock, 57 Hun, 191 [1890].)

Lien extinguished.] By a sale of land on a judgment the lien of the

judgment and the right to redeem under it are extinguished. (Husted v.
Dakin, 17 Abb. 137 [Sp. T. 1857].)

Claim on surplus moneys extinguished.] In like manner any claim

•upon surplus moneys arising upon the foreclosure of a prior mortgage is ex-
tinguished by such a sale. (Husted v. Dakin, 17 Abb. 137 [Sp. T. 1857].)

SURPLUS MONEYS — Creditor's lien extends to surplus money.] Credi-
tors having Hens upon lands sold under a prior judgment have the same liens
upon the surplus moneys as they had upon the land previous to the sale.
(Averill v. Loueks, 6 Barb. 470 [Gen. T. 1849].)

398 CouETs or Eecord. [Rule 64r

- — Of an attorney on a judgment, will be protected.] The lien of an
attorney upon a judgment will be protected by the court on an application
for surplus moneys. Quwre, whether notice of such lien can be filed under
Eule 77. (Atlantic Savings Bank v. Hiler, 3 Hun, 209 [1874].)

Attorney's remedy for compensation.] The remedy of an attorney for

compensation for his services must be by action. His claim should not be
allowed from the share of his client, a judgment creditor, in an action of fore-
closure. (Floyd V. Clark, 16 Daly, 528 [N. Y. Com. PI. 1880].)

Priority of a lien creditor'.] Where there is a surplus fund in court,

after a foreclosure against an executor, a creditor who has obtained a surro-
gate's decree against the estate will be preferredl to legatees who claim the
fund. (Clark's Case, 15 Abb. 277 [Sp. T. 1862].)

Judgment confessed for partnership debt.] A judgment confessed by

two partners, in a firm consisting of three, to secure a partnership debt, is
entitled to priority over subsequent judgments recovered' against all the mem-
bers of the firm. (Stevens v. Bank of Central New York, 31 Barb. 290 [Gen.
T. 1859].)

Subsequent incumbrancer, without notice — has no claim upon sur-
plus.] A subsequent incumbrancer has no claim upon the surplus moneys
arising from a sale under a statute foreclosure, of which he had no notice.
(Wiuslow v. McCall, 32 Barb. 241 [Sp. T. I860]; Root v. Wheeler, 12 Abb.
294 [Sp. T. 1861]; Mutual Life Ins. Co. v. Truchnicht, 3 Abb. X. C. 135
[1877].)

— ■ — ■ Unless he releases to the purchaser all future claim upon the equity of
redemption. (Waller v. Harris, 7 Paige, 168 [1838].)

Where a general creditor applies he should be made a party to the pro-
ceeding. (German Savings Bank v. Sharer, 25 Hun, 409 [1881].)

Where second mortgagees have priority over judgment creditors whose

judgments are prior in date of docket.] (Tallman v. Farley, 1 Barb. 280
[Sp. T. 1847]. See Ray v. Adams, 4 Hun, 332 [1875] ; Cook v. Kraft, 6 Barb.
410 [Gen. T. 1871]; S. C, 3 Lans. 515.)

A junior mortgage taken as collateral security for another obligation.]

(Soule V. Ludlow, 3 Hun, 503 [1875].)

An unrecorded mortgage has priorty over a subsequent judgment.]

•(Thomas v. Kelsey, 30 Barb. 268 [Gen. T. 1859].)

The mortgage first recorded is presumptively the prior lien.] (Free-
man V. Schroeder, 43 Barb. 618 [Gen. T. 1864] ; S. C, 29 How. Prac. 263.)

Such presumption may, however, be overcome.] (Freeman v.

Schroeder, 43 Barb. 618 [Gen. T. 1864]; S. C, 29 How. Prac. 263.)

Purchasers of land sold under execution have priority over junior judg-
ments.] (Shephard v. O'Neil, 4 Barb. 125 [Sp. T. 1848].)

Distribution of — notice of claims.] Distribution of a surplus fund

arising on a foreclosure; what claims may be considered by the referee; notice
must be given to all persons interested in the fund. (Kingsland v. Chetwood,
39 Hun, 602 [1886].)

Necessity of notice to creditors of deceased mortgagor.] Notice of

application for surplus moneys in foreclosure must be given to the creditors

Eule 64] Genebal Eules of Peaotice. 399

of a decedent who was in his lifetime entitled to such moneys when the claim-
ant instituting the proceeding knew the facts constituting the lieu of the
creditors upon the fund. (Felts v. Martin, 20 App. Div. 60 [1897]; German
Savings Bank v. Sharer, 25 Hun, 409 [1881].)

Tenant for years — has an equitable interest in.] A tenant for years

has an equitable interest, to the extent of the value of the remainder of his
term, in the surplus moneys arising upon a sale under a mortgage prior to his
lease where the lease is cut off by the foreclosure. ( Clarkson v. Skidmore, 46
N.' Y. 297, affirming 2 Lans. 238.)

It goes to the heirs of the mortgagor.] Where one dies seized of real

estate incumbered by a mortgage which is thereafter foreclosed and the land
sold, any surplus arising on the sale is to be regarded as realty and goes to
the heirs of the devisees, not to an administrator, and an administrator cannot
maintain an action to recover the same, and this is so although the mortgage
provides that the s-urplus shall be paid to the mortgagor, his executors or
administrators. (Dunning v. Ocean National Bank, 61 N. Y. 497 [1875].)

Surplus money stands in place of land sold — widow's dower.] The

surplus moneys arising on a sale of land, under a mortgage foreclosure, stand
in the place of the land in respect to those having liens or vested rights
therein; and the widow of the owner of the equity redemption is entitled to
dower in the surplus as she was before in the land. (Matthews v. Duryee, 45
Barb. 69 [Gen. T. 1864] ; S. C, 17 Abb. 256; Elmendorf v. Lockwood, 4 Lans.
396 [Gen. T. 1871]; Blydenborgh v. Northrop, 13 How. Prac. 289 [Sp. T.
1856]; Fliess v. Buckley, 22 Hun, 551 1880].)

When the value of an inchoate right of dower will not be paid to the

husband.] The sole persons interested in a surplus arising on a mortgage
foreclosure sale being the owner of the equity of redemption, and his wife, who
had an inchoate right of dower in the mortgaged premises, two-thirds of the
money were paid to the husband, and the remaining one-third was deposited
in court to secure the inchoate dower interest of the wife, who had obtained a
judgment of separation from her husband and was dependent upon alimony
awarded her thereby.

Held, that, under the circumstances, the court should not direct the pay-
ment of the money so deposited to the husband upon the execution of a bond
with two sureties conditioned upon the payment to the wife, in case she sur-
vived the husband, of the income of the money during her life.

Semble, that in a proper case the court, in its discretion, might make such
an order. (Emigrant Industrial Savings Bank v. Regan, 41 App. Div. 523
[1899].)

What liens share in surplus.] Only liens in existence at the time of

the sale and conveyance are transferred to the surplus moneys arising there-
from ; and a judgment which has ceased to be a lien by the lapse of more than
ten years from date of its entry is not entitled to share in such surplus.
(Nutt V. Cuming, 155 N. Y. 309 [1898].)

The filing of a lis pendens creates no lien.] The filing of a Us pendens

without a complaint does not create a lien upon the landl described in the
Us pendens which will entitle the person filing the same to share in the surplus

400 CouKTs OF Eecoed. [Rule 64

arising from the sale of the land in foreclosure. (Albro v. Blume, 5 App.
Div. 309 [1896].)

The owner of an easement in the premises sold is entitled to share in

the surplus.] The owner of an easement in the mortgaged property, which
easement extinguished by the foreclosm-e proceedings, is entitled to share in
the surplus arising on a foreclosure sale. (Winthrop v. Welling, 2 App. Div.
229 [1896].)

Mortgages given by a life tenant and by remaindermen — distribution

of surplus arising on a foreclosure thereof.] Where the life tenant of certain
premises and the two remaindermen execute mortgages thereon, which recite
that the life tenant and the remaindermen are indebted to the mortgagee in
the sum named in the mortgages, and it does not appear who received the
money obtained upon the mortgages, nor to what purposes it was applied, the
presumption is, as between the three mortgagors, that they were each liable
for one- third of the debt, and in surplus money proceedings, instituted after
the foreclosure of the mortgages upon a default in the payment of interest,
the life tenant is chargeable with the unpaid taxes and with one-third of the
interest and the remaindermen with the other two-thirds of the interest, the
costs and expenses of the foreclosure being deducted from the proceeds of sale
before any division is made. (Fosdick v. Lyons, 38 App. Div. 608 [1899].)

Inchoate right of dower.] A woman having an inchoate right of

dower in surplus moneys arising on a foreclosure sale is not entitled to a
gross sujn in lieu of such right. ( Citizens' Savings Bank v. Mooney, 26 Misc.
Eep. 67 [1899].)

Effect of former judgment.] In proceedings instituted to obtain

surplus moneys arising from the foreclosure of a first mortgage upon certain
lands it was shown that in an action brought against the person who executed
the second mortgage upon the property sold under the foreclosure, and who
claimed to own it, it was adjudged that the plaintiff therein was entitled to an
undivided one-half interest in and to the mortgaged premises.

In an action commenced nearly two years after the second mortgage had
been recorded, the second mortgagee not being made a party thereto.

Held, that such judgment would not affect the right to such surplus moneys
of the second mortgagee, who was not a party to such action, if the mortgagor
was the apparent legal owner of the premises in question at the time the
second mortgage was given. (Mechanics' Savings Bank v. Selye, 83 Hun, 282
[1894].)

A pending prior action, not a bar to a proceeding to distribute sur-
plus moneys.] On the payment into court of surplus moneys arising upon
a mortgage foreclosure, one of the defendants in the action claimed the same
as junior mortgagee, and moved for a reference to determine claims thereto;
this claim and motion were resisted by certain other defendants, on the ground
that there was a prior action pending, in which the right of the claimant was
being contested, and in which a complete adjudication could be had. It ap-
peared that in this prior action commenced by the mortgagor and then owner
of the mortgaged premises, since deceased, against the claimant, an inter-
locutory judgment had been entered declaring an instrument executed by the

Eule 64] General Eules of Practice. 401

owner to the claimant in form of a deed to be a mortgage, and appointing a
referee to ascertain the amount due the claimant thereunder ; that it was upon
this mortgage that the claimant based his claim to the surplus moneys, and
that after the entry of said interlocutory judgment, the plaintiff in the action
in which it was rendered, died, and the action had never been revived, and
had since remained in a condition in which no accounting could be had therein.

Held, that such prior action was not a bar to the proceeding for the dis-
tribution of surplus moneys, and that the claimant was entitled to a reference.
(Baker v. Baker, 70 Hun, 95 [1893].)

When a claimant is not barred from application for a reference by a

summons served upon another claimant.] A motion for a reference to ascer-
tain the amount due the respective claimants of surplus money resulting from
the sale of real estate was denied' on the ground that the moving party had
already been served with a summons in an action brought to determine the
rights of the parties to cuch fund. This is no reason for denying a similar
motion by another claimant who has not been served with the summons in said
action. (Toch v. Toch, 8 App. Div. 299 [1896].)

Court has no power to displace a prior lien in favor of a subsequent

one.] Upon application for surplus moneys arising on foreclosure sale, it
appeared that there were two mortgages which were liens upon the premises
sold subsequent to the mortgage foreclosed; the senior one also covered other
lands, which the proof showed and the referee found were of value more than
sufficient to satisfy the mortgage, and the junior mortgage only covered those
premises. Held, that the court had no power to displace the prior lien in
favor of the junior mortgage, and to compel the owner of the former to resort
to the other lands covered by it to obtain payment. (Quackenbush v. O'Hare,
129 N. Y. 485 [1892].)

Form of orders for paying out.] One entitled to surplus money is

not aggrieved by an order requiring the referee to pay off liens upon proof
thereof being made in a manner specified in the order, and without requiring
payment first to be made by the purchaser. (Easton v. Pickersgill, 55 N. Y.
310 [1873].)

Judgment — secured on appeal.] When, while a judgment is marked

" secured on appeal," a mortgage is given on property on which it would other-
wise be a lien, and such judgment is thereafter by the court restored as a lien
thereon, the mortgage is entitled to priority of payment out of the surplus
money arising from the foreclosure of a prior mortgage. (Union Dime Sav-
ings Institution v. Duryea, 3 Hun, 210 [1874].)

Lapse of judgment lien before foreclosure sale.] If, at the time of

the sale in a mortgage foreclosure, ten years have elapsed since the lien of the
junior judgment lienor attached, such a lien is not payable out of the surplus,
even though ten years had not elapsed at the time of the judgment in fore-
closure. (Nutt V. Cuming, 155 N. Y. 309 [1898].)

Notice of application to confirm report of referee though no exceptions

te filed.] Notice of motion to confirm referee's report must be given to all
parties who appear in the action or have filed' with the clerk notice of claim,

402 CouETs OF Eecoed. [Rule 64

though the referee's report has been filed and notice of its making and filing
has been given, and no exceptions have been filed thereto.

Rule 30 not applicable to these proceedings in so far as it is in conflict with
Eule 64. (Van Voast v. Gushing, 32 App. Div. 116 [1898].)

Surplus moneys — on a sale on foreclosure to be regarded as realty —

where an action relating to them must be brought — Code of Civil Procedure,
§ 982.] (Fliess V. Buckley, 22 Hun, 551 [1880] ; American Life Ins. & Trust
Co. V. Van Eps, 56 N. Y. 601 [1874] ; Matter of Knapp, 25 Misc. 133 [1898].)

A claim may be presented and established by the plaintiff as well as

by any other person.] (Field v. Hawxhurst, 9 How. Prac. 75 [Sp. T. 1853].)

Distribution of — rights of junior mortgagees considered.] (Oppen-

heimer v. Walker, 3 Hun, 30 [1874].)

PROCEEDINGS ON REFERENCE — It is a special proceeding.] The dis-
tribution among rival claimants of the surplus money arising on a mortgage
foreclosure by action, is a special proceeding, and is governed by Rule 64 of
the Supreme Court; the reference is one to hear and determine, subject to con-
firmation by the court, which has ample power to confirm, set aside or to refer
back the report, but it is not authorized to make new findings or to change
those already made. (Mutual Life Insurance Co. v. Anthony, 23 X. Y. Wkly.
Dig. 427 [Sup. Ct. Gen. T. 1886].)

Order of reference — Object of.] The order of reference usually made

to report as to the liens and claims against surplus money is not granted' for
the investigation and determination of contested claims. (Union Dime Sav-
ings Institution v. Osley, 4 Hun, 657 [1875].)

Referee may inquire as to the validity of liens and conveyances.]

Upon a reference as to surplus moneys in an action for foreclosure, the referee
has authority to inquire as to the validity of conveyances or liens, and convey-
ances as well as liens may be attacked as fraudulent. (Bergen v. Carmen, 79
N. Y. 146 [1879]. See Halsted v. Halsted, 55 id. 442 [1874]. See, contra,
Snedecker v. Snedecker, 18 Hun, 355 [1879] ; Husted v. Dakin, 17 Abb. 137
[Sp. T. 1857]; Tator v. Adams, 20 Hun, 131 [1880].)

Power of referee to determine claims arising under a second mortgage.]

The referee appointed in proceedings for the distribution of surplus moneys
arising on a foreclosure sale has power to determine the amount due under a
second mortgage given by the mortgagor to secure the second' mortgagee against
any loss arising from the breach of a contract between the mortgagor and the
second mortgagee. (Gutwillig v. Wiederman, 26 App. Div. 26 [1898].)

Usury — may be set up by junior as against senior claim.] The

holders of a fourth mortgage may set up, before the referee, usury in a third
mortgage. (Mutual Ins. Co. v. Bowen, 47 Barb. 618 [Gen. T. 1866].)

Certificate of clerk.] The party prosecuting the reference must pro-
duce a certificate of the clerk, with whom the report is filed andi the surplus
money deposited, showing that no notice of claim to such surplus was annexed
to the report of sale, and that no claim to the same has been filed previous to
the entry of the order of reference; or, if claims have been filed, stating the
names of the claimants, and of their solicitors, if any, and their places of resi-
dence. (Hulbert v. McKay, 8 Paige, 651.)

Eule 64] General Rules of Peactice. 403

- — Duty of referee.] The referee should ascertain, by the proper certifi-
cates and other evidence, that all claimants and other proper parties have been
notified or summoned to attend before him on such reference, and the fact
that such certificate and other evidence was produced before him, should be
stated in his report. (Hulbert v. McKay, 8 Paige, 051.)

Neglect to file notice of claim.] An incumbrancer, who has neglected

to file his notice of claim, may go before the referee and file his claim before
him duly verified, and he will then be entitled to be heard upon such terms as
to costs as the referee shall direct. (Hulbert v. JIcKay, 8 Paige, 651.)

Proof of claim.] The claims must be verified, and the referee may

examine the claimants upon oath touching their claims. (Hulbert v. McKay,
8 Paige, 651.)

Power of court over referee's report.] Upon the coming in of the

report of a referee appointed to ascertain the rights of claimants to surplus
moneys produced on a sale under a decree of foreclosure, the court has the
most ample power to confirm, set aside or refer back the same for further
proofs as to its conscience shall seem just and equitable. While the moneys
remain in the court undisturbed, the court may at any time vacate the order
confirming the report, and refer the matter back to the referee for further
proof. (Mutual Life Ins. Co. v. Salem, 3 Hun, 117 [1874] ; Mutual Life Ins.
Co. V. Anthony, 23 Wkly. Dig. 427 [Sup. Ct. Gen. T. 1886].)

Notice of application to confirm report.] Under Rule 64 of the Gen-
eral Rules of Practice it is necessary, on an application to confirm the report
of a 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 of the General Rules of Practice, so far as it confiicts with rule 64,
applicable in this respect to such a proceeding. (Van Voast v. Gushing, 32
App. Div. 116 [1898].)

Default in appearing on reference.] One having a lien but who fails

to appear was allowed to open default upon filing an undertaking to pay costs
in case she fails to establish her lien, held error. (Irving Savings Inst, v.
Smith, 100 App. Div. 460.]

APPEAL — Order as to surplus moneys — when reviewable in the Court
of Appeals.] When an order of the General Term, reversing an order of the
Spe<;ial Term as to the disposition of surplus moneys in a foreclosure suit, and
sending the case back to the referee, imposes costs absolutely, it is in this
respect a final decision, and an appeal can be taken therefrom to the Court of
Appeals. (Bergen v. Carmen, 79 N. Y. 146 [1879].)

What order is not final and is not appealable to the Court of Appeals.]

An order of the General Term reversing an order of the Special Term, which
confirms a report of a referee appointed to determine as to conflicting claims
to surplus moneys arising on a foreclosure sale, and ordering a new hearing
before another referee, is not reviewable in the Court of Appeals. (Mutual
Life Ins. Co. v. Anthony, 105 N. Y. 57 [1887].)

404 CoTJKTS OF Eecoed. [Rule 65

COSTS — What costs are allowable.] In proceedings as to the surplus
moneys arising on sale of mortgaged premises, motion costs and reference fees
■only can bei allowed. (Wellington v. Ulster County Ice Co., 5 N. Y. Wkly.
Dig. 104 [Sup. Ct. 1877] ; McDermott v. Mallory, 9 Hun, 59 [1876].)

Suitable compensation allowed.] The court has authority to allow a

suitable compensation for costs and disbursements out of the funds. (N. Y.
Liie Ins. & Trust Co. v. Vanderbilt, 12 Abb. 458 [Sp. T. 1861]; Elwell v.
Kobbins, 43 How. Prac. 108 [Sp. T. 1872].)

Unsuccessful claimant to surplus moneys — chargeable with costs.]

TJiiSuccessful claimants will be charged with the extra costs occasioned by
their claims, where the claim of the successful party is just, and the amount
of the surplus small, and a large amount of unnecessary costs has been
occasioned in litigation. (Lawton v. Sager, 11 Barb. 349 [Sp. T. 1851];
Bevier v. Sohoonmaker, 29 How. Prac. 411^22 [Gen. T. 1864].)

RULE 65.

Partition to Embrace all Lands in Common.

Where several tracts or parcels of land lying within this State
are owned by the same persons in common, no separate action for
the partition of a part thereof shall be maintained without the
consent of all the parties interested therein; or without the
special order of the court, made on notice to all parties who have
appeared in the action, to be obtained before application for the
relief demanded in the complaint ; and if brought without such a
consent or order, the share of the plaintiff may be charged with
the whole cost of proceeding; and where infants are interested,
the complaint shall state whether or not the parties owned any
other lands in common.

Rule 77 of 1858. Rule 78 of 1871. Rule 78 of 1874. Rule 69 of 1877.
Rule 65 of 1880. Rule 65 of 1884. Rule 65 of 1888. Rule 65 of 1896,
Rule 65, as amended 1910.

CODE OF CIVIL PROCEDURE.

f 340. AVhen the County Courts have jurisdiction of an action for partition.

I 447. Who are proper parties defendant.

% 473. Guardian ad litem for infant defendant who is a nonresident or is

temporarily absent,
f 982. The action must be tried in the county in which the subject of the

action or some part thereof is situated.
|§ 1532-1595. Provisions relative to actions for partition.
§§ 3252-3253. Additional allowances in partition actions.

Eule 65] General Edles of Peactioe. 405

§ 3297. Fees of referee on sale.
§ 3307. Fees of sheriff on sale.

PARTITION — No inherent power in the court.] The Supreme Court has
no inherent power to partition and sell the real estate of infants; proceedings
for that purpose must be authorized by the Legislature. (Muller v. Strupp-
man, 6 Abb. N. C. 343 [Sp. T. 1878].)

Supreme Court — jurisdiction of.] The Supreme Court sitting at

Special Term has all the judisriction, both legal and equitable, conferred by
statute on the Court of Chancery and the former Supreme Court in pro-
ceedings for partition, and is to conduct the same, so far as they are appli-
cable, in conformity with the provisions of the Revised Statutes. (Hewlett v.
Wood, 3 Hun, 736 [1875].)

Action of partition to try title — allegations as to adverse title.] A

plaintiff, seeking to try the title to land in an action of partition, is bound,
under section 1542 of the Code of Civil Procedure, if cognizant of the facts
upon which the adverse title is based, to allege such facts in his complaint;
if ignorant thereof, he must aver his ignorance, in which event the adverse-
claimant must present his rights by answer. (Satterlee v. Kobbe, 39 App.
Div. 420 [1899]. As to shares of infants. (Levine v. Goldsmith, 71 App.
Div. 204 [1902].)

Specific liens on undivided shares should be determined by the inter-
locutory judgment.] Persons having specific liens, which appear of record
as distinguished from general liens upon undivided shares of parties to a
partition action, being necessary parties under section 1578 of the Code of
Civil Procedure, the validity, priority and amount of such liens may properly
be litigated before the referee, appointed to ascertain and report the rights,
shares and interests of the several parties, and whether the land should be
partitioned or sold, etc., and should be determined by the interlocutory judg-
ment. (Winfield v. Stacom, 40 App. Div. 95 [1899].)

No exceptions need be filed to the referee's report.] Upon notice of

the application for the confirmation of the report and for the entry of an
interlocutory judgment thereon, the parties in interest are entitled to be
heard upon any question adjudicated in the report, and which may properly
be disposed of by the interlocutory judgment.

The filing of exceptions to the report of a referee, appointed in a partition
action, is unnecessary to entitle the interested party to attack the report.
(76.)

Lien upon premises partitionea — now asserted.] A party to an

action of partition who claims a lien upon the premises must allege it in his
answer and establish it by proof; the court has no power to amend the final
judgment so as to direct the referee to pay him the amount of the alleged
lien out of the proceeds of sale, as such an amendment would vary the rights
of the parties as fixed by the decision of the court and the judgment entered
thereon. (Smith v. Smith, 40 App. Div. 251 [1899].)

Cotenant out of possession may maintain partition.] Semble, that

the modern tendency has been to relax the previous rule and to permit a

406 CouETS or Piecoed. [Rule 65

disseized cotenant to have his right and title determined in an action for
partition. (Holder v. Holder, 40 App. Div. 255 [1899].)

Consolidation of actions for partition.] The Supreme Court cannot

consolidate two actions for partition wliere the land described in one suit
is situated in a different county from that described in the other suit, and
where one or more parties in one suit are not parties to or interested in the
other. (Mayor v. Coffin, 90 N. Y. 312 [1882].)

When a sale, instead of actual partition, will be ordered.] Where

several parcels of land are covered by one large mortgage which it would be
diiBcult to apportion, and the division which exists by separate buildings
makes it more valuable than it would be as a whole, with the privilege of
improving it, a sale should be allowed which would produce eleven or twelve
j)er cent net instead of an actual partition. (David v. David, 31 St. Rep. 116
ISup. Ct. 1890].)

Issues tried in a partition suit — exceptions, where considered.] As

the Code of Civil Procedure provides (§ 1544) that issues of fact in an action
for partition are triable by a jury, the trial court may not disregard the
findings of the jury. Exceptions taken, therefore, on the trial before the
jury may be considered on appeal from the judgment. (Jones v. Jones, 120
N. Y. 589 [1890].)

Issues tried by a jury — motion for a new trial under section 1544 of

Code of Civil Procedure, improper.] In an action for partition it was ordered
that the issues of fact be tried at Circuit, and certain questions were framed
to be answered by the jury. Trial was so had, the questions were answered
by the jury and upon written consent of all parties it was directed that the
further hearing of the action should be before the court at Special Term.
Upon such hearing the court made findings and conclusions of law incorpo-
rating in the former the findings of the jury, and an interlocutory judgment
was entered thereon.

Held, that a motion for a new trial at General Term was properly dis-
missed; that the issues in the action were triable by a jury as matter of
right. (Code Civil Procedure, § 1544.)

That the facts found by the jury were binding upon the Special Term; and
so, the trial was not by the court without a jury within the meaning of the
Code of Civil Procedure (§ 1001) authorizing a motion for a new trial after
entry of an interlocutory judgment, where the decision " upon trial of an
issue of fact by the court" directs such a judgment. (Bowen v. Sweeney,
143 N. Y. 349 [1849].)

The interlocutory judgment should provide for existing liens.] An

Interlocutory judgment entered in an action of partition which makes no
provision for a judgment whieli is an apparently valid Uen on the undivided
share of one of the parties is irregular, and the assignee of the judgment is
entitled to have it set aside upon motion. (Kelly v. Werner, 34 App. Div.
68 [1898].)

Order confirming sale cures all prior irregularities.] The final order

of confirmation of sale in n partition suit has the force and effect of a judg-

Kule 66] General Rules of Peactice. 407

ment which binds the parties, where there is complete jurisdiction, whatever
irregularities or errors may have preceded it. (Woodhull v. Little, 102 N. Y.
165 [1886].)

Jurisdiction of court is confined to property described in complaint.]

A suit in partition is a proceeding in rem and the jurisdiction of the court
is confined to the property described in the complaint. (Sandford v. Town
of Hempstead, 97 App. Div. 163.)

PROCEEDS OF SALE — When real estate.] Proceeds of sale in par-
tition of the estate of an infant defendant are considered as real estate.
(Denham v. Cornell, 7 Hun, 664 [1876]; In the Matter of Thomas, 1 id. 475
[1874].)

ALLEGATION AS TO OTHER LANDS — Omission to allege that the
parties own no other land in common.] The omission of a plaintiff to allege
that the parties do not own any other land in common in this State is not a
groimd of demurrer. Effect of a failure to comply with this rule in this
respect. (Pritehard v. Uratt, 32 Hun, 417 [1884].)

Motion to include other lands — bill of particulars thereof — plaintiff

required to pay costs.] Where, in action for the partition of lands, the de-
fendants deny that the premises described in the complaint were the only
lands, real estate or interest therein within the States owned in common by
the parties to the action, and refuse to give any information concerning such
other lands, the court may properly require such defendants to furnish a bill
of particulars of the other lands of which, it is claimed, the parties were
seized in common. Semble, under Rule 65, if there are parcels of land not
included in the action, the plaintiff may be subjected to the whole of the
costs of the action. (Grossman v. Wyckoff, 32 App. Div. 32 [1898].)

'Dismissal of the complaint in partition.] 'VSTiere the plaintiff in a

partition suit fails to embrace therein all lands held by the parties in com-
mon, the complaint will be dismissed under the provisions of Rule 65. (San-
ford V. Goodell, 82 Hun, 369 [1894]. See, also, Beetson v. Stoops, 91 App.
Div. 185, and Sandiford v. Town of Hempstead, 97 App. Div. 163.)

RULE 66.
Reference as to Title and Sale in Actions for Partition of Real Property.

Where the rights and interests of the several parties, as stated
in the complaint, are not denied or controverted, if any of the de-
fendants are infants or absentees, or unknov^n, the plaintiff, on
an affidavit of the fact, and notice to such of the parties as have
appeared, may apply at a Special Term for an order of reference,
to take proof of the plaintiff's title and interest in the premises,
and of the several matters set forth in the complaint ; and to ascer-
tain and report the rights and interests of the several parties in
the premises, and an abstract of the conveyances under which the

■iOS CouETS OF Eecoed. [Rule 6T

same are held. Sueh referee and the referee appointed to sell
shall in all cases be selected by the court.

Rule 78 of 1858. Rule 79 of 1871. Rule 79 of 1874, amended. Rule 70
of 1877, amended. Rule 66 of 1880. Rule 66 of 1884. Rule 66 of 1888.
Rule 66 of 1896. Rule 66 of 1900, amended.

See notes under Rule 65.

CODE OF CIVIL PROCEDURE.

§ 1545. When and how the interests of infants and nonappearing or non-
answering defendants are ascertained.

ABSTRACT OF TITLE — To be produced on reference.] The referee should
require tlie complainant to produce abstracts of title as a tenant in common
in the premises, and to trace it back to the common source of title of the
several tenants in common, and he should give an abstract of the conveyances
of the several undivided shares of the parties in the premises from the time
the several shares were united in one common source. Hamilton v. Morris,
7 Paige, ?9 [1837].)

Need not be annexed to report.] If the referee states explicity that

he has caused the necessary searches to be made, and certifies what incum-
brances there are, it is isufficient, and he is not required to annex to his report
a search for mortgages, etc., affecting the title. (Noble v. Cromwell, 27
How. Prac. 289 [Court of Appeals, I860]; S. C, below, 26 Barb. 475; 6
Abb. 59.)

REFEREE — Report of — how corrected.] Where, under an order of refer-
ence in a partition sviit, " to inquire and report," the referee reports correct
findings of fact, but erroneous conclusions of law thereon, upon the coming in
of the report, the Special Term is not required to send it back for correction,
but may, without exceptions, or independent of them, draw the proper legal
conclusions from the facts. (Austin v. Ahearne, 61 N. Y. 6 [1874].)

Power of, as to incumbrances.] The referee is authorized to take

proof and pass upon the question as to the validity of a mortgage upon an
undivided share claimed by one of the parties, although there is no issue in
the pleadings raising the question. (Halsted v. Halsted, 55 N. Y. 442 [1874].
See Code of Civil Procedure, § 1562.)

Report as to whether an actual partition can be had.] (Walter v.

Walter, 3 Abb. N. C. 12 [1877].)

RULE 67.

Stay of Sale in Partition or Foreclosure — Notice.

ISTo order to stay a sale under judgment in partition or for the
foreclosure of a mortgage shall be granted or made by a judge

Rule 67] General Eules of Peactice. 409

out of court, except upon a notice of at least two days to the
plaintiff's attorney.

Eule 80 of 1858. Rule 81 of 1871. Rule 81 of 1874. Rule 72 of 1877.
Rule 67 of 1880. Rule 67 of 1884. Rule 67 of 1888. Rule 67 of 1896.

CODE OF CIVIL PROCEDURE.

§ 775. Stays granted by a judge out of court — when not to exceed twenty
days.

STAY OF PROCEEDINGS — Order containing stay and returnable in less
than two days — irregular.] An order to show cause, if made by a judga
out of court and returnable in less than two days, is irregular if it contains
a stay of proceedings of sale under judgment in partition or foreclosure.
(Asinari v. Volkening, 2 Abb. N. C. 454 [1877].)

By a party not in possession nor adjudged liable for a deficiency.] A

person appealing from a judgment of foreclosure and sale, who is not in
possession of the mortgaged premises, nor one against whom a judgment for
deficiency has been awarded, is not entitled to a stay under section 1331 of
the Code of Civil Procedure; if such a party desires a stay he should apply
under sections 1351 and 1352 of that Code. (Rosenbaum v. Tobler, 31 App.
Div 312 [1898].)

Foreclosure sale of an undivided interest — when not stayed.] A sale

in foreclosm-e of an undivided interest in certain lands will not be stayed at
the instance of the mortgagor, to the end that the premises may be sold under
the judgment to be entered in an action of partition, in which the mortgagor is
the plaintiff, solely because, in the opinion of an expert, a better price will
be obtained by the mortgagor upon a sale of the whole property than she is
likely to realize from the sale of her undivided quarter interest under the
judgment in foreclosure. (Bradford v. Downs, 24 App. Div. 97 [1897].)

Sale not stayed to await the determination of condemnation proceed-
ings.] A sale in foreclosure will not be stayed at the instance of a junior
mortgagee until the conclusion of condemnation proceedings affecting the mort-
gaged premises — certainly where the moving party fails to give security that
the property will finally sell for sufficient to cover the plaintiff's demand.
(Weekes v. McCormick, 16 App. Div. 432 [1897].)

When a stay may be granted by a judge out of court.] A judge out

of court may, under section 775 of the Code of Civil Procedure, grant an order
staying a sale in foreclosure pending an appeal to the Court of Appeals from
the judgment of foreclosure by purchasers of the mortgaged property who pur-
chased after the execution of the mortgage and were not liable for any de-
ficiency, and who surrendered possession of the premises to the mortgagee prior
to the entry of the judgment. (Mutual Life Insurance Company v. Robinson,
23 Misc. Rep. 363 [1898].)

410 Courts of Eecoed. [Rule 68

Undertaking conditioned against waste — when effective as a stay,]

An undertaking under section 1331 of the Code, conditioned against the com-
mission of waste, is effectual as a stay on appeal from a judgment of fore-
closure only where the appellant giving it is in possession of the property.
(Commercial Bank v. Foltz, 35 App. Div. 237 [1898].)

RULE 68.

Payment of Money into Court — Designation of Trust Companies — Filing
Order, etc., with County Treasurer — Chamberlain of New York City.

Rule 68 repealed, 1910.

CODE OF CIVIL PROCEDURE.

§ 744. Comptroller to prescribe rules and regulations for the care and dis-
position of moneys paid into court, which shall be binding in the
absence of special directions by the court into which the money
was paid.

§ 745. Money to be paid to county treasurer (unless otherwise directed), and
securities to be taken in his name.

§ 746. Funds, where and how deposited or invested.

§ 747. Power of each court by special order, to direct the disposition or in-
vestment of moneys paid into it.

§ 749. Power of certain officers to bring actions relative to money paid into
court.

§ 750, On death or expiration of official term of county treasurer, securities
and money paid into court vest in his successor.

§ 751. Authority for paying out money paid into court.

§ 1563. When proceeds of sale of a share in partition paid into court.

§ 15<34. Application therefor — what papers to be presented on.

§ 1565. Satisfaction of liens on an undivided share.

§ 1740. When the surplus arising on sale of chattels, in actions to foreclose a
lien thereon, is to be paid to the county treasurer.

§ 1967. District attorney to pay over money collected to county treasurer.

§ 2116. Governor to pay into court damages ascertained under writ of assess-
ment of damages for real property taken by the State.

§ 2117. Investment of such money.

§ 2118. How such money is obtained by the claimant.

§ 2537. Money and securities in Surrogate's Court, to be deposited with county
treasurer.

§ 2748. Legacy, when to be paid over to county treasurer.

§ 2786. Money arising on sale of real estate of a deceased person to pay debts
to be paid to county treasurer.

Kule 69] Geneeal Eules of Peactice. 411

♦CHANCERY RULE — Investment.] The Chancery Rule (180) providing
for the investment of funds paid into court is still in force, modified by the
General Rules of Practice. (Chesterman v. Eyland, 81 N, Y. 398 [1880].)

Payment to a referee.] The payment of money to a referee is not

payment into court. (Becker v. Boon, 61 N. Y. 317 [1874].)

OfScer protected in paying.] An officer who has been enjoined from

paying money out of a court is protected in paying under an ex parte order,
although unfairly obtained. (People ex rel. Morris v. Randall, 73 N. Y. 416
[1878].)

Payment into court.] The rule as to payment into court is applied

by courts of equity according to the equities of each case. (Wood v. Rabc, 52
N. Y. Supr. Ct. 20 Jones & S. 479 [Gen. T. 1885].)

Payment into court — proper practice.] The proper practice to adopt

in the case of the payment of money into court considered. (Wilson v. Doran,
39 Hun, 88 [1886].)

RULE 69.

Order for Payment out of Court; Accounts with Trust Companies; Draft to
be Countersigned by Justice; What to be Stated in Draft.

All orders directing the payment of money out of court shall
direct the payment to be made to the person entitled to receive the
same, and all checks or drafts for the payment of money out of
court shall be drawn payable to the order of the person entitled to
the moneys ; and shall specify in what particular suit or on what
accoimt the money is to be paid out, and the time when the order
authorizing such payment was made. No order in any pending

* Chancery Eule 180. — Whenever a party, as tenant for life, or by the curtesy,
or in dower, is entitled to the annual interest or income of any sum paid into court
and invested in permanent securities, such party shall be charged with the expense of
investing such sum and of receiving and paying over the interest or income thereof,
but if such party is willing, and consents to accept a gross sum in lieu of such
annual interest or income for life, the same shall be estimated according to the then
value of an annuity of six per cent, on the principal sum during the probable life
of such person, according to the Portsmouth or Northampton tables. And where
money belonging to an infant or an absentee, or to an unknown owner, is brought
into court for his benefit, under a final decree in partition, if no direction for the
Investment thereof Is contained in the decree, and the money Is not applied for
within six months thereafter. It shall be the duty of the register, assistant register.,
or clerk with whom the same is deposited, and without any special order for that
purpose, to cause it to be invested in the public stocks or other permanent securities,
or in the New York Life Insurance or Trust Company, to accumulate for the benefit
of the party entitled thereto. He may also in like manner reinvest the income of
such money, from time to time, without aof special order for that purpose, when-
ever, in his opinion, the amount of such income is sufficient to render an investment
thereof proper and beneficial to the person interested therein. And where money is
brought into court, upon the sale of an Infant's estate by a special guardian, if the
infant will not arrive at age within six months thereafter, it shall be the duty of
the register, assistant register, or clerk, to whose credit such money is deposited In
hank, without any special order of the court for that purpose, to deposit such money
in the Trust Company to accumulate, or to Invest the same in the puljlic stocks of
this State or of the United States ; or to Invest it upon bond and mortgage on
unincumbered real estate of double the value, exclusive of buildings, payable when
the Infant becomes of age, or sooner If required to be paid by the order of the court,
with interest to be paid annually or semi-annually ; and to reinvest the same from
time to time as above directed.

412 CouKTS OF Recoed. [Eule 69

action, for the payment of money out of court, shall be made,
except on regular notice or order to show cause, duly served on
the attorneys of all the parties who have appeared therein, or
filed notice of claim thereto. When moneys are deposited by the
order of the court in any trust company, the entry of such deposit
in the books of the company shall contain a short reference to the
title of the cause or matter in which such deposit is directed to
be made, and shall specify also the time from which the interest
or accumulation on such deposit is to commence, where it does
not commence from the date of such deposit. The secretary of
the company shall, on or before the first day of February in each
year, transmit to the Appellate Division of the Supreme Court in
the department in which the trust company is located, a statement
of the accounts in each department, showing the amount, on the
last preceding first day of January, including the interest or ac-
cumulation on the sum deposited to the credit of each cause or
matter.

In every draft upon the trust company by the county treasurer
or chamberlain, for moneys deposited vsdth the said company, or
for the interest or accumulation on such moneys, the title of
the cause or matter on account of which the draft is made, and
the date of the order authorizing stich draft shall be stated, and
the draft shall be made payable to the order of the person or per-
sons entitled to the money. Any attorney or other person pro-
curing an order for the payment of money out of court, shall
obtain two certified copies of the order, both to be countersigned
by the judge granting the same; one copy shall be filed with the
county treasurer and the other shall accompany the draft drawn
upon the depository and be filed with it, and the several banks and
other depositories having trust funds of the court on deposit, are
forbidden to pay out any of such funds without the production and
filing of such certified and countersigned copy order. This pro-
vision is not intended to dispense with any of the requirements
of this rule, as to the form of the draft, nor to apply to a case
where periodical payments are directed to be made, as provided
for by the last sentence of this rule, after the first payment from
such fund shall have been made under an order of the court, in
the manner herein specified. Where periodical payments are di-
rected to be made out of a fund deposited with such company,

Kule 70] General Eules of Practice. 413

the delivery to the secretary of the company of one copy of the
order authorizing the several payments shall he sufficient to
authorize the payment of subsequent drafts in pursuance of such
order.

Rule 83 of 1858, amended. Rule 84 of 1871, amended. Rule 84 of 1874.
Rule 75 of 1877. Rule 70 of 1880, ajnended. Rule 70 of 1884, amended.
Rule 70 of 1888, amended. Rule 69 of 1896. Rule 69, as amended 1910.

See note under Rule 68.

CODE OF CIVIL PROCEDURE.

§§' 743-754. Payment into court, and care and disposition thereof.

RTJIE 70.

Gross Sum in Payment of Life Estate — How Ascertained.

Whenever a party, as a tenant for life, or by the curtesy, or
in dower, is entitled to the annual interest or income of any sum
paid into court and invested in permanent securities, such party
shall be charged with the expense of investing such sum, and of
receiving and paying over the interest or income thereof; but if
such party is willing, and consents to accept a gross sum in lieu
of such annual interest or income for life, the same shall be esti-
mated according to the then value of an annuity of five per cent.
on the principal sum, during the probable life of such person,
according to the Carlisle Table of Mortality.

Rule 84 of 1858, amended. Rule 85 of 1871. Rule 85 of 1874. Rule 76
of 1877, amended. Rule 71 of 1880. Rule 71 of 1884. Rule 71 of 1888.
Rule 70 of 1896. Rule 70 of 1900, amended.

CODE OF CIVIL PROCEDURE.

§ 1553. What provision is made in an action for partition for dower interest,

etc.
§ 1567. Sale, where a power interest exists in the entire property.
§ 1568. Effect of a sale free from dower.
§ 1569. Gross sum in lieu of dower, etc.

§ 1570. Ascertainment of value of inchoate dower interest, etc.
§ 1571. Release of dower.
§ 1583. Investment for tenant for life, etc.
§ 1617. In an action for dower, plaintiff may consent to receive a gross sum

in lieu thereof.

41-i Courts of Eecoeb. [Rule 70

§ 1618. Leave to defendant to pay a gross sum in lieu of dower.
§ 1619. Interlocutory judgment for sale — ascertainment of dower.
§ 1620. Consent to take a lot in lieu of dower.

NORTHAMPTON TABLES.] (See copy of Northampton tables, poat, page
463.)

In action to recover damages for death.] In an action to recover dam-
ages occasioned by the death of plaintiff's intestate, the Northampton tables
are properly received in evidence to show the probable duration of the life of
the deceased. (Sauter v. N. Y. C. R. R. Co., 6 Hun, 447 [1876]; Schell a.
Plumb, 55 N. Y. 592 [1874]; S. C, 16 Abb. [N. S.] 19 [Gen. T. 1873].)

Use of Northampton tables to estimate the value of a husband's life.]

The Northampton tables may be used by the jury in estimating the probable
duration, of the life of a husband whose wife has sued under the Civil Damage
Act to recover damages because of his d'eath, resulting from his intoxication.
(Davis V. Standish, 26 Hun, 608 [1882].)

CARLISLE TABLE OF MORTALITY.] (See copy of Carlisle Table of
Mortality, post, page 465.)

CONTINGENT DOWER RIGHT — Rule for computation of.] The proper
rule for computing the present value of the wife's contingent right of dower
during the life of her husband, is to ascertain the present value of an annuity
for her life equal to the interest in the third of the proceeds of the estate to
which her contingent right of dower attaches, and then to deduct from the
present value of the annuity for her life, the value of a similar annuity de-
pending upon the joint lives of herself and her husband, and the difference
between those two sums will be the present value of her contingent right of
dower. (Jackson v. Edwards, 7 Paige, 386-408 [1839].)

Gross sum in lieu of a life estate — discretionary with the court.]

Except in the case of dower which is provided for by the Code of Civil Pro-
cedure, subdivision 3, section 2793, whether the widow shall have a gross sum
in lieu of a life estate rests in the discretion of the court. The General Rules
of Practice simply provide for the manner of estimating the gross sum when
it is allowed. (Matter of Zahrt, 94 N. Y. 605 [1884].)

Gross sum not awarded for an inchoate right of dower.] A woman

having an inchoate right of dower in surplus moneys arising on a sale in fore-
closure is not entitled to a gross sum in lieu of such right. (Citizens' Sav-
ings Bank v. Mooney, 26 Misc. Rep. 67 [1899].)

When moneys representing an inchoate right of dower will not be paid

to the husband.] The sole persons interested in a surplus arising on a mort-
gage foreclosure sale being the owner of the equity of redemption and his wife,
who had an inchoate right of dower in the mortgaged premises, two-thirds of
the money were paid to the husband, and the remaining one-third was de-
posited in court to secure the inchoate dower interest of the wife, who had
obtained a judgment of separation from her husband, and was dependent upon
alimony awarded her thereby.

Kule 71] Geneeal, Rules of Practice. 415

Held, that, under the circumstances, the court should not direct the pay-
ment of the money, so deposited, to the husband, upon the execution of a bond
with two sureties, conditioned upon the payment to the wife, in case she sur-
vived the husband, oi the income of the money during her life.

Bemhle, that in a proper case the court, in its discretion, might make such
an order. (Emigrant Industrial Savings Bank v. Regan, 41 App. I>iv. 523
[1899].)

RULE 71.

Fees on Executing a Commission of Lunacy — Committee May Pay Cobts,
When — Special Order of the Court — When Necessary.

On the execution of a commission of lunacy, etc., the commis-
sioners, for every day they are necessarily employed in hearing
the testimony and taking the inquisition, shall be entitled to an
allowance to be fixed by the court, not exceeding ten dollars for
each day to each of such commissioners.

Where the costs and expenses exceed $250, besides witness' fees
and allowances to commissioners, the committee shall not be at
liberty to pay the same out of the estate in his hands, without a
special order of the court upon notice to all parties wio have
appeared in such proceedings, directing such payment.

Rule 85 of 1858, amended. Rule 86 of 1871. Rule 86 of 1874. Rule 77
of 1877, amended. Rule 72 of 1880. Rule 72 of 1884. Rule 72 of 1888.
Rule 71 of 1896.

CODE OF CIVIL PEOCEDURE.

§ 340. The County Courts have jurisdiction of proceedings for the ap-
pointment of a committee.

§ 2320. Concurrent jurisdiction of courts as to ctommittee of lunatic, etc.

§ 2321. Duty of court having jurisdiction.

§ 2322. Committee onay be appointed.

§ 2323. Application for committee — by whom made.

§ 2323a. Application where incompetent is confined in State institiitions —
contents of petition — proceedings thereon.

§ 2323b. Costs- and disbursements thereon.

§ 2324. Duty of certain officers to apply.

§ 2325. Contents, etc., of petition — proceedings on presentation thereof.

§ 2326. When foreign committee may be appointed.

§ 2327. Order for commission or for trial by jury in court.

§ 2328. Contents of commission.

§ 2329. Commissioners to be sworn — vacancies, how filled.

I 2330. Jury to be procured — proceedings thereupon.

416 CouETs OF Recoed. [Rule 71

§ 2331. Proceedings upon the hearing.

§ 2332. Return of inquisition and commission.

§ 2333. Expenses of commission.

§ 2334. Proceedings upon trial by jury in court.

§ 2335. Subject of inquiry in cases of lunacy.

§ 2336. Proceedings upon verdict or return of commission.

§ 2336a. Limitations of sections 2325-2336.

§ 2337. Security to be given by committee.

§ 2338. Compensation of committee.

§ 2339. Committee under control of court — limitation of powers of.

§ 2340. Committee of property may maintain action, etc.

§§ 2341-2342. II., to file inventory and account.

§ 2343. Property — when to be restored.

§ 2344. 76., disposition in case of death.

COSTS — Authority of committee to pay.] The committee are authorized

to pay the cos'ts of the attorney who conducted the proceedings upon the in-
quisition to an amount not exceeding $50. (Matter of Clapp, 20 How. Prac.
385 IGen. T. 1861].)

Discretionary — will not be allowed unless proceedings are taken for

the benefit of lunatic] In proceedings to have a person declared a lunatic, or
to traverse or supersede the commission, the cost rests in the sound discretion
of the court, and will not be granted unless the proceedings are instituted for
the benefit of the lunatic, and are instituted and prosecuted fairly and in good
faith. (In tlie Matter of Beckwitb, 3 Hud, 443 [1875].) In certain cases the
costs will be allowed against the attorney instituting the proceedings. (Id.)
When the cost of the proceedings qarniot bci charged against a petitioner pro-
ceeding in good faith. (Matter of McAdams, 1ft Hun, 292 [1879]. See, how-
ever. Code of Civil Procedure, § 2336. See, also, Carter v. Beckwith, 128
N. Y. 312.)

Costs where the lunatic dies before the confirmation of the inquisition.]

Where a person examined under a commission- de lunatico inquirendo dies after
the jury has foimd him to be insane, but before the finding has been confirmed
by the court or any committee appointed, the costs of the commission are pay-
able out of the estate. (Matter of Lofthouse, 3 App. Div. 139 [1896].)

Duty of committee to see that the issues raised by an alleged lunatic

are properly tried.] Where the lunatic is allowed to traverse the inquisition,
it is the duty of the committee to oppose the traverse and see that the issues
are properly tried, and when on sueh traverse the alleged lunatic is found not
to be of unsound mind, the committee is entitled to the legal expenses incurred,
in the proceedings on the inquisition, and in opposing the traverse of it, in-
cluding the bills of the attorneys of the committee, and a reasonable counsel
fee upon the trial of the traverse, and all disbursements, and to be paid out of
the funds of the estate in their hands. (Matter of Clapp, 20 How. Prac. 385
[Gen. T. 1861].)

E,ule 72] Geneeal Rules of Practice. 417

RULE 72.

Reference on Default in an Action to Obtain a Divorce or Separation — Who
May be Referee — Proof of Service of Summons and Complaint — Notice
of Appearance, etc., Not Sufficient — Complaint for Divorce, Averments
in — Plaintiff to be examined on Oath — Failure of Defendant to Answer.

When an action is brought to obtain a divorce or separation, or
to declare a marriage contract void, the court shall in no case
order the reference to a referee nominated by either party nor to a
referee agreed upon by the parties, nor without proof by affidavit
conformable to the rules relating to the manner and proof of the
service of the summons and complaint. Notice of appearance and
retainer shall not be sufficient to excuse such proof.

When the action is for a divorce on the grounds of adultery,
imless it be averred in the complaint that the adultery charged
was committed without the consent, connivance, privity or pro-
curement of the plaintiff; that five years have not elapsed since
the discovery of the fact that such adultery had been committed,
and that the plaintiff has not voluntarily cohabited with the de-
fendant since such discovery ; and, also, where, at the time of the
offense charged, the defendant was living in adulterous intercourse
with the person with whom the offense is alleged to have been
committed; that five years have not elapsed since the commence-
ment of such adulterous intercourse was discovered by the plain-
tiff, and the complaint containing such averments be verified by
the oath of the plaintiff in the manner prescribed by the Code,
judgment shall not be rendered for the relief demanded until the
plaintiff's affidavit be procured stating the above facts.

In an action for a divorce or for the annulment of a marriage,
where the defendant fails to answer, no reference shall be granted
to take proof of the facts stated in the complaint, but before a
judgment shall be granted the proof of such facts must be made
to the court in open court and a copy of the evidence taken before
the court shall be written out and filed with the judgment-roll.
The court may, however, in case the evidence is such that the pub-
lic interest require that the examination of the witnesses should
not be public, exclude all persons from the courtroom except the
parties to the action and their counsel and the witnesses, and shall
order such evidence, when filed with the clerk, sealed up and ex-

418 Courts op Reooed. [Rule 72

hibited only to the parties to the action or some one specially in-
terested upon order of the court.

Rule 86 of 1858. Rule 87 of 1871, amended. Rule 87 of 1874, amended.
Rule 78 of 1877. ,Rule 73 of 1880. Rule 73 of 1884. Rule 73, of 1888,
lamended. Rule 72 of 1896.

CODE OF CIVIL PROCEDURE.

§ 438, subd. 4. Service of summons may be without the State or by publi-
cation in actions for divorce, etc.

§' 83il. Husband and wife not competent to testify against each other in an
action or special proceeding founded upon an allegation of adultery,,
except to prove the marriage or disprove the allegation of adultery.

§ 1012. Reference not m^ade, of course, by consent of parties in an action
for divorce, etc. — court must designate a referee.

§ 1024. In actions for divorce, etc., a referee may be appointed to whom all
the parties object.

§ 1229. In an action for divorce, etc., judgment can be rendered only by the
court.

§' 1742. Action by woman married under sixteen to annul a marriage.

§ 1743. In what other cases a marriage may be annulled.

§ 1744. Action when a party was under the age of consent.

§' 1745. Id., when a former husband or wife was living.

§ 1746. Id., when a party was an idiot.

§ 1747. Id., when a party was a lunatic.

§ 1748. Action by next friend of idiot or lunatic.

§ 1749. Issue of marriage annulled for idiocy or lunacy — entitled to suc-
ceed, etc.

§ 1750. Action on the ground of force, fraud, etc.

§ 1751. Custody, maintenance, etc., of issue of such a marriage.

§ 1752. Action on the ground of physical incapacity.

§ 1753. Certain proceedings regulated in action to annul a marriage.

§ 17'54. Judgment annulling marriage; how far conclusive.

§ 1755. How next friend of infant, lunatic, etc., allowed to sue, etc.

§ 1756. In what cases actions for divorce can be maintained.

§ 1757. Answer — mode of trial — judgment by default — right of the co-
respondent to appear.

§ 1758. Divorce, when denied, although adultery be proved.

§ 1759. Regulations when the action is brought by the wife.

§ 1760. Id., when the action is brought by the husband.

§ 1761. Marriage — after divorce for adultery.

§ 1762. For what causes an action for separation may be brought.

§ 1763. In what cases it may be mantained.

I 1764. What the complaint roust state.

S 1765. Answer in action for, may set up plaintiff's misconduct.

Eule 72] General Eules of Pkactice, 419

§' 1766. Support, etc., of wife and children, where the action ia brought by

the wife.
§ 1767. When judgment of separation may be revoked.
§ 1768. Married woman plaintiff, is deemed resident, when.
§ 1769. Alimony pendente lite in action for divorce or separation — costs —

execution.
§ 1770. What is deemed a counterclaim in.
§ 1771. Court to give direction as to custody, etc., of children and support

of plaintiff where the action is brought by the wife.
§ 1772. Security for support, etc., of wife and children.
§ 1773. Support, etc. — provisions for — when enforced by punishment for

contempt.
§ 1774. Regulations respecting judgment by default in action for.

DEFAULT — This rule applies only to cases of default.] In an action by
a wife for divorce on the ground of adultery, where the case is litigated, it is
not incumbent upon the plaintiff to make affirmative proof of the allegations
inserted in her complaint in compliance with the rules of the Supreme Court
(Rule 73), i. e., that the adultery charged was "without the consent, privity
or procurement of the plaintiff," and that the latter has not voluntarily co-
habitated with defendant since discovery of the fact; these are matters of
affirmative defense. It is only to provide for a case of defendant suffering a
default that these possible defenses are required to be negatived by plaintiff
by verified complaint or affidavit. (McCarthy v. McCarthy, 143 N. Y. 235
[1894]; Lowenthal v. Lowenthal, 157 id. 236 [1898].)

The rule applies only where the defendant makes default, and has no

application to contested actions. No rule can enlarge or abridge the rights
conferred by the Code itself. (Ackerman v. Ackerman, 123 App. Div. 750;
Freeman V. Freeman, 126 id. 601.)

— — What need not be proven on default.] If the verified complaint in an
action for an absolute divorce avers the facts enumerated in Rule 72, i. e., that
the adultery was committed without the consent, oonmivance, privity or pro-
curement of the plaintiff; 'that five years have not elapsed since he discovered
it or the adulterous intercourse ; and that he had not since voluntarily co-
habited with the defendant, the plaintiff need not and should not, on default,
show these facts. If they are not averred in the complaint, then they should
be shown by an affidavit. (Evans v. Evans, 27 Misc. Rep. 10 [Kings Sp. T.
1899].)

This rule applies only to cases of default, and the things stated in it

are not a part of the plaintiff's case, but are matters of defense which the
plaintiff is permitted to aver in the complaint, in anticipation of a default.
(Evans v. Evans, 27 Misc. Rep. 10 [Kings Sp. T. 1899].)

JURISDICTION — Dependent on the statute.] The former Court of Chan-
cery in this State had no jurisdiction to grant divorces independent of the
statute on that subject. (Grain v. Cavana, 62 Barb. 109 [Gen. T. 1862].)

The power of the courts to declare a marriage void is derived exclu-
sively from the statutes. (Peugnet v. Phelps, 48 Barb. 566 [Sp. T. 1867].)

"^r^O CoTjETs OF Eecoed. [Eule 72

The courts in this State have no common-law jurisdiction over the sub-
ject of divorce; their authority is confined altogether to the exercise of such
express and incidental powers as are conferred by statute. (Erkenbrach v.
Erkenbrach, 96 N". Y. 450 [1884]; Walker v. Walker, 155 id. 77 [1898].)

After the dissolution of a marriage no action for divorce will lie.]

iA. judgment dissolving the marriage was recovered by a wife against her hus-
band. Held, .that it disabled the husband from further prosecuting an action
brought by himself against her. (Jones v. Jones, 3S Hun, 414 [1885].)

What facts sufficient to show residence in this State.] Where the

plaintiff was an opera singer and since her marriage had resided most of the
time in New York city, had bank accounts there, and when filling engage-
ments abroad gave New York city as her address, held sufiicient to entitle
plaintiff to sue in New York State. (Doeme v. Doeme, 96 App. Div. 284.)

JOINDER — Actions for divorce and for separation cannot be joined.] A
cause of a<;tion for an absolute divorce cannot be united with one for separa-
tion, and in such case the failure of the plaintiff to separately state her cause
of action does not deprive the defendant of his right to demur to the com-
plaint. (Zorn v. Zorn, 38 Hun, 67 [1885] ; Bucholz v. Bucholz, 1 How. Prac.
[N. S.] 40 [N. Y. Sup. Ct. Sp. T. 1884].)

CONTRACTS — Agreement by a husband to support his wife living apart.]
Agreement by a husband to support a wife living apart from him — not void
as against public policy — when it is mutual the husband cannot revoke it
without the consent of the wife. (Mann v. Hulbcrt, 38 Hun, 27 [1895].)

Agreement by a wife to share her alimony with her attorney, is void.]

An agreement by a wife to compensate an attorney for conducting an action to
be instituted by her against her husband for a separation, by giving him cer-
tain percentages of such sums as should be awarded her for alimony, is void
as against public policy. (Van Vleck v. Van Vleck, 21 App. Div. 272 [1897].)

Agreement to live apart as a consideration for a note.] A note given

by a husband to his wife for money loaned is void when part of the considera-
tion is an agreement to live apart. (Friedman v. Bierman, 43 Hun, 387
[1887].)

Agreement to renew marital relations — effect of its breach.] Where

an agreement has been entered into between a husband and wife to discontinue
an action for divorce and resume marital relations, the husband has a right,
on the breach of the agreement by his wife, to recover property transferred to
her in consideration of such agreement. (Bolen v. Bolen, 44 Hun, 362 [1887].)

The husband is liable for legal services rendered the wife in an action

brought by the wife for a separation.] An attorney may maintain an action
against a husband to recover the value of legal services rendered by the at-
torney in the institution and prosecution of an action against the husband
by the wife for a separation, upon the ground of cruel and inhuman treatment.

In such an action the plaintiff must show affirmatively that the suit was
for the protection and support of the wife, and that the conduct of the hus-
band was such as t(5 render its institution and prosecution reasonable and
proper.

Quwre, whether the same rule exists in the case of an action for divorce.
<Naumer v. Gray, 28 App. Div, 529 [1898],)

Eule 72] General Eules oe Peactice. 421

Return to husband under his agreement to pay costs and expenses.]

After the commencement of an action for separation on the ground of cruel
and inhuman treatment, an agreement was made by which the wife was to re-
turn and live with defendant as his wife, and he was to pay the costs and
expenses of her attorney. After her return to him he served a verified answer
in the action and refused to pay such costs and expenses. Held, that the
court had power to compel the husband to pay the costs and expenses of the
action as fixed by the court. (Smith v. Smith, 35 Hun, 378 [Sup. Ct. 188.5].
See 99 N. Y. 639.)

MAINTENANCE — Decree for separation essential to one for maintenance.]
Under section 54, 2 Eevised Statutes,* a decree for maintenance could only be
made as an incident to one for separation. (Douglass v. Douglass, 5 Hun, 140
[1875].)

ADULTERY — What averments as to the adultery are suflB.cient.] A com-
plaint in an action for divorce because of adultery, which avers the adultery
with a. person whose name is unknown, between certain specified dates, and in
a town or city named, and further avers that the plaintiff is unable more
particularly to specify the time and place, is sufficient. (Mitchell v. Mitchell,
61 N. Y. 398 [1875].)

Allegations as to time and place of adultery.] In an action for divorce,

allegations of adultery committed with persons unknown to the party pleading,
must, nevertheless, state specifically times and places. Motion to make plead-
ings more definite and certain, when granted. (Tim v. Tim, 16 Abb. Prac.
[N. S.] 39 [Sup. Ct. 1874]; Cardwell v. Cardwell, 12 Hun, 92 [1877]. See,
however, Mitchell v. Mitchell, 61 N. Y. 398.)

How adultery should be charged.] (Clark v. Clark, 7 Rob. 276 [N. Y.

Supr. Ct. Sp. T. 1867] ; Anonymous, 17 Abb. 48 [N. Y. Supr. Ct. 1862] ; Heyde
V. Heyde, 4 Sandf. 692 [N. Y. Supr. Ct. 1852].)

How set up in answer.] The adultery should be set up in the answer

in the same manner, and be accompanied with the same allegations as are re-
quired when charged in the complaint. (Morrell v. Morrell, 3 Barb. 236 [Gen.
T. 1848]; S. C, 1 id. 318.)

What allegations sufficient.] Where the defendant alleged in her

answer that the plaintiff, in February and March, 1867, at the cities of New
York and Brooklyn committed adultery, and thereby contracted a veneral
disease, which he communicated to the defendant some time about the month
of March, 1687, held, that this was sufficient. (Clark v. Clark, 7 Rob. 276
[Sp. T. 1867].)

Adultery of plaintiff connived at by defendant, no defense.] The fact

of the adultery of the husband, if connived at by the wife, does not prevent
him from getting a divorce because of her adultery. (Bleck v. Bleck, 27 Hun,
296 [1882].)

What does not constitute a procurement or connivance.] ^Vhere the

suspicions of a husband have been aroused, and he seeks to detect his wife's
infidelity, if it exists, and takes no steps to prevent her carrying out her
manifest purpose of meeting the man whom he suspects as being, and who
proves to be, her paramour, leaving her to her own volition, his acts in so

' • ' ^-^

* Repealed.

4-23 CouETs OF Eecokd, [Rule 72

doing do not amount to the procurement of, or connivance at, his wife's
adultery under section 1758 of the Code of Civil Procedure. (Pettee v. Pettee,
77 Hun, 595 [1894].)

Decision sustaining finding of adultery not binding on the Court of

Appeals.] A finding by the General Term on conflicting evidence that there
is evidence to support the affirmative finding of the jury upon the issue of
adultery, is binding upon the Court of Appeals. (Lowenthal v. Lowenthal, 157
N. Y. 236 [1898].)

Finding of jury upon the question of connivance not in issue.] The

finding of the jury that the defendant's adultery was connived at by the plain-
tiff may properly be disregarded where the question of connivance was not in
issue. (/5.)

How connivance should be negatived.] (Myers v. Myers, 41 Barb. 114

[Sp. T. 1863].)

Judgment on finding of adultery in the absence of an affirmative de-
fense.] Where the answer sets up no affirmative defense and the jury find in
favor of the plaintiff on the issue of adultery, which was the only issue pre-
sented to them, it is proper for the court to order judgment for the relief
demanded in the complaint without making findings or conclusions, or filing
a decision under section 1022 of the Code of Civil Procedure. (Loweothal v.
Lowenthal, 157 N. Y. 236 [1898].)

Verdict upon issue of adultery is conclusive.] The finding of the jury

upon the issue of adultery is conclusive unless the verdict is set aside or a
new trial is granted. (75.)

Adultery of plaintiff — a defense and ground of affirmative relief.]

Adultery committed by the plaintiff is, when set up in the answer, a perfect
defense to an action for an absolute divorce, and is also a ground' for affirma-
tive relief in the same action. (Anonymous, 17 Abb. 48 [1862].)

Practice where affirmative defenses are tried in equity.] It seems that

when the answer in an action for divorce sets up affirmative defenses, and» the
only issue sent to a jury is that of adultery, and the other issues are tried in
equity, it would be proper practice to return the finding on the issue of
adultery to the Special Term, it being conclusive there, and then to file a
decision as to all the issues, under section 1022 of the Code. (/6.)

What evidence is required to establish it.] In a civil action the fact

of adultery may be established by proof of such facts and' circumstances as
under the rules of evidence are competent to be proved, and which satisfy the
mind of the tribunal required to pass upon the question of the truth of the
charge. No further proof of the fact is required than of other facts in other
actions. (Allen v. Allen, 101 N. Y. 658 [1886].)

Counterclaim for annulment of the marriage — not good.] A cause of

action for annulment of a marriage cannot be set up as a counterclaim in an
action for divorce or separation. (Taylor v. Taylor, 25 Misc. Eep. 566
[1898].)

REFERENCE — Proper form of order.] In an action for divorce, if no
issue has been joined, a reference to take and report evidence is proper ; where
issue has been joined, the reference must be to hear and determine the issues*

E.ule 72] General Eules of Peactice. 423

(Sullivan v. Sullivan, 52 How. Prae. 453 [N. Y. Supr. Ct. Sp. T. 1877]. See
Rule 72 as amended.)

Affidavit and proof as to connivance, and that five years have not

elapsed.] Where the verified complaint in an action lor absolute divorce con-
•tains averments that the adultery was committed without the consent, conniv-
ance or procurement of plaintiff; that iive years have not elapsed since dis-
covery thereof, and that plaintiff has not since then voluntarily cohabited
with the defendant, the plaintiff need not, on default, show these facts by
affidavit, nor is proof thereof necessary or proper. (Evans v. Evans, 27 Misc.
Hep. 10 [1899].)

Proceedings void if parties agree upon referee.] Where, in a matri-
monial action, the parties agree upon a referee, who is appointed by the court,
and they proceed in disregard of the statutory provisions against such appoint-
ment, such procedure is not a mere irregularity, but the proceedings are un-
questionably void. (Pratt v. Pratt, 2 App. Div. 534 [1896].)

Parties to an action for divorce cannot agree upon a referee to take

testimony to be used upon the reference ordered by the court upon applica-
tion for judgment. (White v. White, 66 Misc. Rep. 592.)

Reference consented to — court to name referee.] The spirit and inten-
tion of section 1012 of the Code of Civil Procedure la that the court, when a
reference of an action brought for a divorce has been already consented to,
must name a referee of its own motion, and without the consent or agreement,
as to the person to be named, of the counsel or parties. (Ives v. Ives, 80 Hun,
136 [1894].)

Naming a referee in the stipulation.] In an action brought to secure a

divorce, the parties thereto consented in open court to a reference, not to any
particular person, but simply that the case should) be referred, the plaintiff
agreeing to it as a condition of her not at once proceeding to trial. Thereafter,
by a stiptilation entered into between the parties, to which the court acceded,
a certain person was named as referee.

Held, that the plaintiff was not entitled to have the whole order vacated
because that portion of the order, designating the particular person before
whom the reference was to be tried, was improperly made. (/6.)

When the court cannot appoint another referee in place of the one

agreed upon.] Where the court vacates an order of reference for the reason
that the matter was heard before a referee agreed upon by the parties, the ref-
erence falls when the order is vacated, and as the consent was not one to refer
generally, but only to a particular referee, it is erroneous for the court to
appoint a new referee. (Pratt v. Pratt, 2 App. Div. 534 [1896].)

Review of evidence on a referee's report by the judge.] How far a

judge should review the evidence on the report of a referee on an application
for divorce. (Anon., 3 Abb. N. C. 161 [N. Y. Supr. Ct. Sp. T. 1877] ; Malcolm
V. Foster, 5 Wkly. Dig. 310 [City Ct. of Brooklyn, Sp. T. 1877].)

Court cannot set aside a referee's report and order issues to be tried

at Circuit.] In an action brought for divorce on the ground of adultery, a
referee was appointed, under a stipulation of the parties, to hear and deter-
mine the action, who, after a trial, made a report in favor of the plaintiff.

424 Courts of Eecoed. [Eule 72

On application to tlie Special Term for the confirmation of this report, the
motion was denied and the issues in the action were sent to the Circuit for
trial. Held, that the report of a referee upon such a trial stands as the deci-
sion of the court, which will not review the findings upon the merits but will
only make such examination as may be necessary to ascertain whether the
report has any support in the evidence, or whether there has been fraud or
collusion or any evil practice in the case by either party. After such exam-
ination the application for judgment will either be granted or denied, but
the report will not be set aside; and where the parties have agreed to a
I'eference the court has no authority, in the absence of a reason suf&cient in
law, to disregard the order of reference and order a trial at the Circuit.
(Ryerson v. Ryerson, 55 Hun, 191 [1890].)

Can be reviewed only by the General Term.] In an action brought to

obtain an absolute divorce the Special Term has no power, after a trial before
a referee, to examine the case upon the merits or to reverse the report of the
referee for errors or irregularities committed on the trial, and the only man-
ner in which the trial before the referee can be reviewed is by an appeal to
the General Term. (Huntley v. Huntley, 73 Hun, 261 [1893].)

Court cannot consider the evidence where the decision is against the

divorce.] Where the issues have been fully and fairly tried before a referee
to hear and determine, his decision should stand as a guide for the court in
rendering judgment unless some unjust, inadvertent or imwise ruling appears
which tended to destroy the safeguards which the court throws around the
indissolubility of the marriage tie. Upon motion to confirm the report of
a referee appointed to hear and determine an action for divorce the court
will not consider the evidence where the decision was against a divorce, as
such a review is not within the scope of section 1229 of the Code. (Smith v.
Smith, 7 Misc. Rep. 305 [Sup. Ct. 1894].)

Power of the Special Term over the report of a referee in an action

for divorce.] The Special Term is not required, under section 1229 of the
Code of Civil Procedure, to confirm the report of a referee appointed in an
action for an absolute divorce, and to direct judgment accordingly, but may
refuse to confirm it if the evidence certified does not support it satisfactorily
to the conscience of the court.

SemMe, that the Special Term cannot direct a judgment contrary to the
report of the referee. (Gorham v. Gorham, 40 App. Div. 564 [1899]. See,
however, Anonymous, 3 Abb. N. C. 161 [Sp. T. 1877] ; Schroeter v. Schroeter,
23 Hun, 230 [1880]; Ross v. Ross, 31 Hun, 140 [1883].)

TRIAL — How conducted.] It is not proper, where a reference has been
made to take proofs and report, with the referee's opinion, for the court to
set aside the report and give judgment for the defendant. The issues should
be tried by the court and the facts be found by it. (Myer v. Myer, 7 Wkly.
Dig. 535 [Gen. T. 1878].)

How case noticed for trial.] After reference to take testimony and

report with referee's opinion, a case must be brought on for trial on the usual
notice and the evidence presented. A motion to confirm the referee's report
at Special Term is improper. (Westheimber v. Westheimber, 1 Law Bull. 34
[Sp. T. 1879].)

Kule 72] General Eules of Peactice. 425

Issues must be settled, before notice of trial.] The issues as to adul-
tery, in an action for divorce, must be settled before notice of trial can be
given or the cause placed on the calendar. (Leslie v. Leslie, 11 Abb. [N. S.]
311 [N. Y. Com. PL 1871].)

See notes under Eule 31.

Issues only to embrace facts contested by the pleadings.] In an action

for divorce on the ground of adultery, issues are only to be made up for th*-
trial of the facts contested by the pleadings. (Morrell v. Morrell, 3 Barb. 236
[1848]; Forrest v. Forrest, 6 Duer, 102 [Gen. T. 1850]; S. C, 3 Abb. 144.)

What issue improper.] An issue whether the party was guilty of

adultery with a specified person at any time before the commencement of the
action should not be allowed. (Strong v. Strong, 3 Rob. 675 [Gen. T. 1865] ;
S. C, 1 Abb. [N. S.] 233.)

Right of third party charged, to attend, examine witnesses, etc.] (Clay

V. Clay, 10 N. Y. Wkly. Dig. 362 [Gen. T. July, 1880].)

Corespondents may be served and appear.] (Chapter 661 of the Laws

of 1899.)

BY JURY,] Either party is entitled to demand a jury trial. A corespond-
ent may defend the action. (Code of Civil Procedm-e, § 1757.)

Jury trial — a matter of right.] The issues as to adultery, raised in

an action for divorce, must be tried before a jury unless a jury trial is
waived. (Batzel v. Batzel, 42 N. Y. Supr. Ct. Rep. 561 [Sp. T. 1877].)

Jury trial — not discretionary.] The right to a trial of the issues by a

jury in an action for divorce on the ground of adultery is a constitutional
one and cannot be reduced to a discretionary one by the General Rules of
Practice. To what class of cases General Rule No. 31 must be confined.
(Conderman v. Conderman, 44 Hun, 181 [1887] ; Whitney v. Whitney, 76 id.
585 [1894].)

Finding of the jury — when conclusive.] Where adultery is the sole

issue, and that is tried by jury, their finding is conclusive on the court.
(Lowenthal v. Lowenthal, 157 N. Y. 236, aflfg. 92 Hun, 385 [1895].)

Rejecting verdict.] This rule does not preclude the court from reject-
ing the verdict and ordering a new trial, on its own motion, on the final
hearing, or from finding the question of fact for itself. (See Schroeter v.
Schroeter, 23 Hun, 230 [1880], See Lowenthal v. Lowenthal, 92 Hun, 385
[1895].)

When the court may correct the wording of the verdict.] Where in an

action for divorce in which thirteen issues were svibmitted to the jury under
a charge that unless the party on whom rested the burden of proof had
proved his allegations the answer to the question should be " No," the jury
rendered a verdict in which twelve of the issues were answered " No," while
the other one was answered "Not proven." Held, that the court was justi-
fied in correcting the wording of the verdict and substituting the word " No "
for the words "Not proven." (Cruikshank v. Cruikshank, 38 App. Div. 580
[1899].)

Where the jury disagree as to some and agree as to one of the issues.]

Where the jury disagree as to all the issues except one, as to which they
were directed to find for the defendant, there is a mistrial and no judgment

426 Courts of Eecoed. [Rule 72

can be rendered thereon, but upon a new trial all the issues are to be con-
sidered. (Smith V. Smith, 27 Misc. Eep. 252 [1899].)

The constitutional right overrides the Rules.] Even though an appli-
cation to frame issues is limited as to time by the General Rules of Practice,
the constitutional right to a trial by jiu-y in a divorce action cannot he
impaired thereby. (Sigel v. Sigel, 28 Abb. N. C. 308 [N. Y. Supr. Ct. 1892].)

Waiver — as to issues.] In an action for divorce it is necessary that

the questions to be tried by a jury be stated, and the parties have a right to
have them settled for that purpose; and where the issues are stated and
settled in pursuance of a stipulation of the attorneys for the parties, they
respectively waive the right to have, preliminary to the trial, any more ques-
tions specifically stated and settled. (Whitney v. Whitney, 76 Hun, 585
[1894].)

Waiver of jury trial.] Where, on motion to confirm the report of a

referee, in an action for divorce on the groimd of adultery, it did not appear
by the moving papers that a jury trial had been waived and consent to the
reference given in writing and filed, held, that the reference was irregular and
the motion must be denied. (Diddell v. Diddell, 3 Abb. 167 [Sp. T. 1856].)

Notice for an equity term, not a waiver of a jury trial.] The fact that

a case is noticed for trial at an equity term does not waive the right to move
after the trial of issues as to value or damages. (Eggers v. Manhattan Co.,
27 Abb. N. C. 463 [N. Y. Supr. Ct. 1891].)

Evidence considered and held sufficient to establish the fact of adultery

necessary to authorize a decree of divorce.] (Schreiber v. Schreiber, 3 Misc.
Kep. 411 [Supr. Ct. 1893].)

NEW TRIAL — What reviewable on appeal.] In an action for divorce, a
new trial of the issues will not be granted for other than substantial errors
upon the trial. In an action for divorce where no motion for a new trial was
made and no direction was given that it be heard, the person against whom
the judgment was rendered is in no position to raise, upon an appeal there-
from, any question upon the rulings as to the reception or rejection of evi-
dence at the trial of the issues submitted to the jury, or as to the force or
weight of the evidence in support of the verdict. (Whitney v. Whitney, 76
Hun, 585 [1894].)

CONDONATION — It should be pleaded.] While the plaintiflf in an action
for absolute divorce is bound to negative the forgiveness of the offense on
account of which relief is asked, and is bound to prove such fact where the
defendant makes default, yet, where the defendant interposes an answer, he
should, if he intends to rely upon the condonation as a defense, allege the
same in his answer and establish it by proof. (Merrill v. Merrill, 41 App.
Div. 347 [1809].)

EVIDENCE — In an action for divorce on the ground of adultery.] Admis-
sibility of the confession of a defendant in an action for divorce on the
ground of adultery. A decree will be granted when all just reason to believe
that collusion exists is removed. (Madge v. Madge, 42 Hun, 524 [1886].)

A husband cannot testify to his wife's adultery.] A husband is for-
bidden by the provisions of section 831 of the Code of Civil Procedure to

Hule 72] Geneeal Eules of Peactice. 427

testify to material facts tending to establish the charge of adultery alleged
by him in his complaint to have been committed by his wife. (Colwell v.
Colwell, 14 App. Div. 80 [1897].)

Evidence of husband for his wife.] A husband may testify for, but

not against, his wife in an action for divorce. (Bailey v. Bailey, 41 Hun, 424
[1886]. See, also, Code of Civil Procedure, § 831.)

The evidence of prostitutes must be corroborated.] The courts regard

the uncorroborated evidence of prostitutes and private detectives as insuffi-
cient to break the bonds of matrimony; but in divorce cases the courts must
take such evidence as the nature of the case permits, circumstantial, direct
or positive, and must bring to bear upon it the tests of observation and
experience in the exercise of good judgment. It is to be weighed with
prudence and care and effect must be given to its just preponderance. (Mott
T. Mott, 3 App. Div. 532 [1896].)

When evidence is the confession of defendant.] When the evidence is

a confession of defendant, it must be shown to be of such a character that no
suspicion of collusion can arise, and it should be corroborated. (Diederichs
V. Diederichs, 44 Misc. Rep. 591.)

DOWER — When a foreign absolute divorce will not bar dower.] The
'' misconduct which deprives a wife, divorced because thereof, of her right of
dower, is only that kind of misconduct which, imder our laws, is a ground for
divorce, i. e., adultery; " a decree of divorce granted in another State, on the
^ound of the wife's desertion of her husband, does not deprive her of her
■dower in lands of the husband and situate in this State. (Van Cleaf v. Burns,
133 N. Y. 540 [1892].)

Effect of, on dower.] In an action for divorce against a wife she is

not deprived of dower till judgment is entered. (Sohiffer v. Pruden, 64 N. Y.
47 [1876].)

JUDGMENT — Judgment forbidding guilty wife to use her husband's
name.] A decree of absolute divorce obtained by a husband against his wife
may prohibit the guilty wife from using the full name or surname of her
husband. (Blanc v. Blanc, 21 Misc. Rep. 268 [1897].)

A provision in a judgment for separation awarding the custody of

minor children is in the discretion of the court.] (Waring v. Waring, 100
Tsr. Y. 570 [1885].)

Foreign judgment of divorce obtained on service by publication — effect

of a general appearance on a motion for alimony.] Where a wife, after ob-
taining from the New Jersey Court of Chancery a decree of divorce from her
husband, 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 jur-
isdictional 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].)

Foreign judgment awarding custody of children — effect of.] Effect of

a decree of divorce in a court of another State awarding to the mother the
■custody of the children. (People ex rel. Allen v. Allen, 105 N. Y. 628 [1887].)

428 Courts of Recoed. [Eule 72

Effect of a foreign judgment for divorce where service is made by

mail.] (O'Dea v. O'Dea, 101 N. Y. 23 [1885].)

Special Term not to vacate, add or subtract from the referee's deci-
sion in divorce.] In an action for divorce the Special Term has no power, in
hearing the motion for a vacation of the judgment, to reverse or add to or
subtract from the decision of the referee; to obtain such a result the remedy-
is by appeal where the decision of the referee could be reviewed. (It. See,
also. Boiler v. Boiler, 96 App. Div. 163.)

VACATION OF JUDGMENT — Proof required for the vacation of a judg-
ment.] The proof must be clear and satisfactory to induce the coiu-t to ii'ter-
fere with a regular judgment alleged to have been fraudulently obtained; it
is not sufficient merely to raise a suspicion or to show constructive fraud, but
there must be proof of actual fraud. (Jones v. Jones, 71 Hun, 519 [1893].)

Motion to set aside for fraud — proper practice — affidavit of defend-
ant competent.] Defendant's affidavit is proper on a motion to set aside a
judgment of divorce for adultery, on the ground of fraud and collusion,
though she might be incompetent to testify on the trial. The proper prac-
tice in such case is to apply by motion and not to bring an action. (Megarge
V. Megarge, 2 N. Y. Wkly. Dig. 352 [Sup. Ct. 1876].)

Default in payment of alimony — laches.] Where the amount of ali-
mony awarded to a wife in an action brought by her against her husband
for a separation is unpaid, and the husband has left the State to escape the
enforcement of the decree in such action, the motion of the husband, in a
subsequent action brought against him by his wife for an absolute divorce, to
open the default and set aside the judgment, if made nearly nine months
after he received actual notice of the entry of the judgment in the divorce
action, should be denied unless the alimony allowed in the judgment for
divorce be first paid. (Weidner v. Weidner, 85 Hun, 432 [1895].)

Remarriage not conclusive on a motion to open a default.] Where,

after judgment has been rendered by default in favor of the plaintiff, in an
action brought for an absolute divorce on the ground of adultery, the plain-
tiff, with knowledge that an application is about to be made to open such
default, remarries, the fact of such remarriage is not a good reason for
denying the motion for a new trial if the circumstances connected with the
default would otherwise justify the granting of such application. (Scriptme
V. Scripture, 70 Hun, 432 [1893].)

Remarriage — out of this State — after divorce in this State forbid-
ding it — effect of.] (See Thorp v. Thorp, 90 N. Y. 602 [1882]; Marshall v.
Marshall, 2 Hun, 238 [Gen. T. 1874].)

ALIMONY — Income of a trust fund may be reached under a judgment for
alimony.] The surplus income of a trust fund created for the benefit of a
husband may be reached under a judgment for alimony granted in an action
for an absolute divorce brought against him by his wife. (Wetmore v. Wet-
more, 140 N. Y. 520 [1896].)

Decision as to alimony and counsel fees cannot be reserved until final

judgment.] In a matrimonial action, the question of alimony and counsel

Eule 72] Geisteeal Eules of Peactice. 429

fees cannot be reserved for decision after the trial of tlie action, except with
the consent of the husband or his counsel. (Lonsdale v. Lonsdale, 41 App.
Div. 224 [1899].)

Reservation in the decree of the right to apply for alimony.] Unless

a provision for alimony is contained in the final judgment in an action for
divorce, it cannot be avi^arded by the subsequent order. (Noble v. Noble, 20
App. Div. 395 [1897].)

Enforcement of a foreign judgment for alimony — by execution.] In

an action in the Supreme Court of the State of New York upon a judgment
for alimony rendered by a court of another State, the plaintiff will be granted
a mere money judgment for the amount of the past due alimony, enforcible
only by execution, and she will not be permitted to invoke the equitable
remedies of sequestration, etc., provided by the foreign judgment for the
enforcement of its provisions, or the remedies provided by the New York
Code of Civil Procedure for the enforcement of a judgment for alimony ren-
dered by a New York court. (Lynde v. Lynde, 41 App. Div. 280 [1899].)

Failure to pay alimony not excused by poverty.] A husband cannot

excuse his failure to comply with the terms of a judgment, rendered in an
action for divorce, requiring the payment of alimony, by setting up, in answer
to a motion made to punish him for contempt, his present poverty or inabil-
ity to pay. (Delanoy v. Delanoy, 19 App. Div. 295 [1897].)

Proceedings to compel payment of alimony.] The procedure upon a

motion to compel such payment is to be taken under sections 2266 and 2268
of the Code of Civil Procedure, and the judgment is to be enforced under
section 1773 of the same code, but a necessary prerequisite is service upon
the husband of a certified copy of the judgment in question and a demand
that he pay the amount due; and where it appears that just before the
motion was made the wife served the husband in the city of New York with
a copy of the judgment, she will not be allowed to excuse her failure to
demaaid of him the alimony upon the ground that her husband was continu-
ously absent from the State of New York. (lb.)

Cannot be enforced after death of husband.] (Kellogg v. Stoddard, 89

App. Div. 137.)

Alimony cannot be awarded in an action to annul a marriage.] In an

action by a woman to annul her marriage, no alimony can be granted. (Park
V. Park, 24 Misc. Rep. 372 [1898].)

As to action for separation, see Hawley v. Hawley, 95 App. Div. 274.

SEPARATION — Action for, brought by wife — return of the wife to the
husband terminates it.] The voluntary return of a wife to her husband,
before the trial of an action brought by her in good faith and upon suflScient
grounds for a separation, effectually terminates the action, although no order
of discontinuance is entered, and authorizes the attorney for the wife, where
the court has awarded no counsel fees or alimony in the action for a sep-
aration, to institute an action against the husband to recover the value of
his services rendered in the former action. (Naumer v. Gray, 41 App. Div.
361 [1899],)

430 CouETs OF Eecoed. [Rule 74

ACTION TO ANNUL MARRIAGE — Power of court.] Court may compel
surgical examination of husband in an action to annul a marriage on the
ground of impotency. (Gore v. Gore, 103 App. Div. 168.)

KULE 73.

Judgment by Default, When Granted — Proof Required.

Before judgment by default shall be granted in an action t&
annul a marriage on the ground that the party was under the age
of legal consent, proof must be made showing that the parties
thereto have not freely cohabited for any time as husband and
wife, after the plaintiff had attained the age of consent. If the
action is brought to annul the marriage, on the ground that the
plaintiff's consent was obtained by force or fraud, the plaintiff
must show that there has been no voluntary cohabitation between
the parties as man and wife ; and if it is brought to annul a mar-
riage on the ground that the plaintiff was a lunatic, proof must
be produced showing that the lunacy still continues; or that the
parties have not cohabited as husband and wife after the plaintiff
was restored to his reason.

Rule 87 of 1858. Rule 88 of 1871, amended. Rule 88 of 1874. Rule 79
of 1877. Rule 74 of 1880. Rule 74 of 1884. Rule 74 of 1888, amended.
Rule 73 of 1896.

See notes under Rule 72.

RULE 74.

Answer in an Action for Divorce — TriaL

The defendant in the answer may set up the adultery of the
plaintiff, or any other matter which would be a bar to a divorce^
separation, or the annulling of a marriage contract; and if an
issue is taken thereon, it shall be tried at the same time and in
the same manner as other issues of fact in the cause.

Rule 89 of 1858. Rule 90 of 1871. Rule 90 of 1874. Rule 81 of 1877.
Rule 75 of 1880. Rule 75 of 1884. Rule 75 of 1888. Rule 74 of 1896.
See notes under Rule 72.

Eule 76] Geneeal Eules of Practice. 431

RULE 75.

Questioning Legitimacy of Children.

On a complaint filed by a husband for a divorce, if he wishes
to question the legitimacy of any of the children of his wife, the
allegation that they are or that he believes them to be illegitimate,
shall be distinctly made in the complaint. If, upon default,
proofs shall be taken upon the question of legitimacy, as well as
upon the other matters stated in the complaint, and if the issue
is tried by a jury, an issue on the question of legitimacy of the
children shall be awarded and tried at the same time.

Eule 90 of 1858. Rule 91 of 1871. Rule 91 of 1874. Rule 82 of 1877.
Eule 76 of 1880. Rule 76 of 1884. Rule 76 of 1888. Rule 75 of 1896.
See notes under Eule 72.

CODE OF CIVIL PROCEDURE.

§ 1759. Action by wife — legitimacy of children begotten prior to its com-
mencement not affected.

§ 1760. Action by husband — legitimacy of children begotten before the
offense charged not affected — legitima,cy of other children may be
litigated.

RULE 76.

Judgment Declaring Marriage Void, or Granting a Divorce, etc., Not to be by-
Default — Copy of Pleading or Testimony Not to be Furnished — No
Judgment to be Entered Except by Court.

'No judgment annulling a marriage contract or granting
a divorce, or for a separation or limited divorce, shall be made of
course by the default of the defendant; or in consequence of any
neglect to appear at the hearing of the cause, or by consent.
Every such cause shall be heard after the trial of the issue, or
upoii the coming in of the proofs at a Special Term of the court ;
but where no person appears on the part of the defendant, the
details of the evidence in adultery causes shall not be read in
public, but shall be submitted in open court. ~No officer of any
court, with whom the proceedings in an adultery cause are filed,
or before whom the testimony is taken, nor any clerk of such offi-
cer, either before or after the termination of the suit, shall per-

4'32 Courts of Recoed. [Rule 77

mit a copy of any of the pleadings or testimony, or of the sub-
stance of the details thereof, to be taken by any other person than
a party or the attorney or counsel of a party who has appeared in
the cause, without a special order of the court.

jSTo judgment in an action for a divorce shall be entered except
upon the special direction of the court.

Rule 91 of 1858, amended. Rule 92 of 1871. Rule 92 of 1874, amended.
Rule 83 of 1877. Rule 7r of 1880. Rule 77 of 1884. Rule 77 of 1888,
amended. Rule 76 of 1896.

Rule has force of a statute.] The rule has all the force of a statute,

and the court is not at liberty to disregard it. (Boyer v. Boyer, 121 App.
Div. 647.)

The granting of a divorce on the consent of the defendant is abso-
lutely prohibited. (Taylor v. Taylor, 123 App. Div. 220.)

See notes luider Rule 72.

RULE 77.

Receiver of Debtor's Estate — Power and Duties of — To be Allowed Costs —
When He May Sell Doubtful Claims at Auction.

Every receiver of the property and effects of the debtor shall,
imless restricted by the special order of the court, have general
power and authority to sue for and collect all the debts, demands
and rents belonging to such debtor, and to compromise and settle
such as are unsafe and of a doubtful character. He may also sue
in the name of a debtor, where it is necessary or proper for him to
do so ; and he may apply for and obtain an order of course that
the tenants of any real real estate belonging to the debtor, or of
which he is entitled to the rents and profits, attorn to such re-
ceiver, and pay their rents to him. He shall also be permitted to
make leases, from time to time, as may be necessary, for terms not
exceeding one year. And it shall be his duty, without any un-
reasonable delay, to convert all the personal estate and effects into
money ; but he shall not sell any real estate of the debtor without
the special order of the court, until after judgment in the cause.
He is not to be allowed for the costs of any suit brought by him
against an insolvent from whom he is unable to collect his costs,
unless such suit is brought by order of the court or by the consent
of all persons interested in the funds in his hands. But he may.

E.ule 77] Geneeal Eules of Peactice. 433

"by leave of the court, sell such desperate debts, and all other
doubtful claims to personal property, at public auction, giving at
least ten days' public notice of the time and place of such sale.

Rule 92 of 1858. Rule 93 of 1871. Rule 93 of 1874. Rule 84 of 1877.
Rule 78 of 1880. Rule 78 of 1884. Rule 78 of 1888. Rule 77 of 1896.

CODE OF CIVIL PROCEDURE.

I 90. Clerks, etc., in New York and Kinga counties not to be receivers unless
upon consent of the parties. See Judiciary 'Law, § 251.

§ 383. Limitation of time for bringing certain actions against.

§ 713. When a receiver may be appointed.

§ 714. Notice of application before judgment — necessary — unless party
has failed to appear and time to do so has expired.

§ 715. Security to be given by — new bond may be required — removal.

§ 716. Certain receivers may hold real property.

§ 766. Death of receiver^ does not abate action brought by.

§ 827. Special reference may be ordered to examine as to appointment of.

§ 1788. Appointment of receiver — temporary and permanent — powers of, etc.
See General Corporations Law, §§ 104, 106.

% 1789. Larger powers may be conferred on temporary receiver. See Greneral
Corporations Law, § 105.

I 1877. Appointment of receiver in judgment-creditor's action — order for de-
livery of debtor's property to him.

§ 1890. Receivers, etc., are public officers within the meaning of section 1888
of the Code of Civil Procedure.

I 2441. Receiver in supplementary proceedings — notice of application for the
appointment of, to be given to . the debtor.

§ 2447. Order requiring delivery of money or property by a third person to the
receiver.

§ 2449. How such money or property applied to payment of judgment.

§ 2450. Balance of such money to be paid to judgment-debtor.

§ 2454. Notice of application for dismissal of supplementary proceedings.

§ 2464. When and how a receiver in supplementary proceedings may be ap-
pointed.

§ 2465. Notice to other creditors of application for receiver, when necessary.

§ 2466. Only one receiver to be appointed — former receivership may be ex-
tended.

§ 2467. Order appointing a receiver to be filed and recorded.

§ 2468. When the title to property vests in a receiver.

§ 2469. How receiver's title to personal property extended by relation.

§ 2470. County clerk to record order appointing a receiver — penalty for
neglect.

§ 2471. Redeiver to be subject to the control of the court.

4'34 Courts of Kecoed. [Rule 77

§ 3271. Security of coats — when required in actions by.
§ 3320. Receivers' commissions.

RECEIVER — A receiver is an officer of the court.] (Latimer v. Lord, 4
E. D. Smith, 183 [N. Y. Com. PI. 1855].)

He must obey the orders of the court.] (Lane v. Lutz, 1 Keyes, 206

[1864] ; People v. Church, 2 Lans. 459 [Gen. T. 1870].)

The money in his hands is held in custodia legis for whoever may

prove title to it.] (Carey v. Long, 12 Abb. [N. S.] 627 [N. Y. Supr. Ct. Sp. T.
1872].)

Receivers of insolvent corporations — rights of.] Receivers of insolvent

corporations occupy tlie same position and have no better rights than the
corporation had. (Cutting v. Damerel, 88 N. Y. 410 [1882].)

Receiver can maintain no action which could not be maintained by the

corporation itself. (Bostwick v. Young, 118 App. Div. 490.)

• Liability of receiver.] As to liability of receiver of banking corpora-
tion upon covenants of lease, see Prince v. Schlesinger, 116 App. Div. 500.

Appointment of a new receiver, in case of the death of the debtor and

first receiver.] Where the court has appointed a receiver in a creditor's suit,
and thereafter the receiver and judgment-debtor both die, the court may ap-
point a new receiver. (Niccll v. Boyd, 90 N. Y. 516 [1882].)

Motion to compel a receiver to sue.] An order denying a motion to

direct a receiver to sue is proper when notice of the application therefor was
noit given to all the parties to be proceeded against. A receiver, if he is
derelict in attending to his duties, is responsible to the parties who have
been injured. (People v. The Life Union, 84 Hun, 560 [1895].)

Application for leave to bring an action in the name of a receiver in

supplementary proceedings.] Where an attorney makes application for leave
to sue a county clerk in the name of the receiver in supplementary proceedings,
for damages for said clerk's alleged official misconduct, and both the receiver
and the judgment-creditor were unwilling that such an action be brought, the
application is properly denied, as it does not comply with Rule 79. (llillis v.
Pentelow, 92 Hun, 284 [189i5].)

Clerk of the court only appointed receiver by consent.] Clerk of the

court cannot be appointed a receiver unless all the parties consent, but a
failure to obtain such consent is an irregularity only. (Moore v. Taylor, 40
Hun, 56 [1886].)

Limit of a receiver's recovery.] In an action brought by a receiver in

supplemeutai-y proceedings to set aside a fraudulent conveyance, his recovery
is limited to the amount of the judgment represented by him, and the expenses
■of the receivership and references. (Stiefel v. Berlin, 28 App. Div. 103
[1898].)

Receiver's appointment cannot be attacked collaterally.] The objection

that no proper execution was issued upon the judgment under which the re-
ceiver was appointed and that such appointment was, therefore, irregular, is
unavailable. (/&. )

Receiver appointed in an action to set aside fraudulent conveyances.]

A receiver appointed in an action to set aside a fraudulent conveyance is a
common-law receiver. (Badger v. Sutton, 30 App. Div. 294 [1898].)

Kule 77] General Rules of Peactice. 435

Eight to bring action.] Every person -who shall, in fraud of the rights

of creditors and others, receive, take or in any manner interfere with the
estate, property or effects of any deceased person or insolvent corporation,
association, partneship or individual, shall be liable in the proper action to
the executors, administrators, receiver or other trustee of such estate or prop-
erty for the same or the value of any property or effects so received or taken,
and for all damages caused by such acts to any trust estate. (Section 2,
chap. 314 of 1858; Henderson v. Brooks, 3 N. Y. Sup. Ct. [T. & C] 448 [Gen.
T. 1874] ; Britton v. Lorenz, 3 Daly, 23 [Com. PI. 1869] ; Barclay v. Quick-
silver Mining Co., 6 Lans. 25 [Gen. T. 1872].)

No extra-territorial power.] An order appointing a receiver has no

extra-territorial effect. {O'Callaghan v. Fraser, 37 Hun, 483 [1885].)

Cannot sue in foreign jurisdiction.] A receiver is an officer of the court

which appoints him. He cannot sue in a foreign jurisdiction for the property
of the debtor. (Booth v. Clark, 17 How. Prac. [U. S.] 322 [1854].)

Payment of claims.] Unsecured claims accruing prior to appointment

of receiver, should not be paid from proceeds of receiver's certificates, without
consent of mortgage bondholders. (Knickerbocker Trust Co. v. Tarrytovra,
etc., Ry. Co., 133 App. Div. 285.)

Prosecuting action.] When Supreme Court will enjoin receiver ap-
pointed by it in proceeding to dissolve domestic corporation from prosecuting
in New Jersey action to determine ownership of stock of corporation. (Guar-
anty Trust Co. V. Edison United Phonograph Co., 128 App. Div. 591.)

Accounting.] When court has power to appoint referee to take and

state account where receiver of corporation has disbursed large sums without
taking vouchers. (Matter of Home Book Co., 60 Misc. Rep. 560. See, also.
People V. Oriental Bank, 129 App. Div. 865 ; Adams v. Elwood, 123 id. 649 ;
Katz V. Freeman, 114 id. 124; People v. Federal Bank of New York, Id. 374;
People V. Republic Sav. Bank, 119 id. '502.

Foreign receiver cannot maintain action for appointment of ancillary

receiver.] A receiver of an insolvent corporation of another State, resident
therein and appointed by the court of that State having full jurisdiction, in a
suit for the winding up of the affairs of the corporation, with power, so far
as could be conferred by such appointment, to demand, sue for, receive and
take into his possession all the property, effects and choses in action of the
corporation, cannot maintain .an action in this State against the corporation
as sole defendant for the sole purpose of procuring the appointment in this
State of an ancillary receiver, based on the fact that the corporation has
property within this State that requires administration. (Mabon v. Ongley
Electric Co., 156 N. Y. 196 [1898].)

Action in the name of the corporation.] He may continue an action in

the name of the corporation. (Albany City Ins. Co. v. Van Vrankin, 42 How.
Prac. 281 [Sp. T. 1872].)

When entitled to affirmative judgment.] (Raymond v. Security Trust

& Life Ins. Co., lOd App. Div. 546. )

Appointment of a receiver is no bar to an action against the corpora-
tion.] The appointment of a receiver of an insurance company does not bar
an action against the company. (Pringle v. Woolworth, 90 N. Y. 602 [1882].),

436 Courts of Kecoed. [Eule 77

Rights of action in a receiver, as regards fraudulent conveyances by

his debtor.] It is competent for a receiver appointed in supplementary pro-
ceedings to bring an action eitlier to set aside and annul alleged fraudulent
conveyances of real estate by the judgment- debtor, and for a reconveyance of
the property by the fraudulent grantee, or to set aside the conveyances as a
cloud on title, so as to leave the property subject to levy and sale on execu-
tion. (Wright V. Nostrand, 94 N. Y. 31 [1883] ; Mandeville v. Avery, 124 id.
376 [1891] )

Action by temporary receiver of an insolvent corporation to recover

moneys obtained under an unlawful preference.] A temporary receiver of an
insolvent corporation,-appointed in an action of sequestration, has power under
section 1788 of the Code of Civil Procedure to maintain an action to recover
from a third party money collected by the defendant under a judgment en-
tered against the insolvent corporation upon an oifer made by it for the pur-
pose of giving an unlawful preference, and the insolvent corporation is not a
necessary or proper party defendant to such action. (Nealis v. American
Tube & Iron Co., 150 N. Y. 42 [1896].)

May select the court.] He may bring the action in such court as he

selects. (Rockwell v. Merwin, 45 N. Y. 166 [1871].)

Suit by a particular attorney.] The court will not authorize a receiver

to bring suit by a particular attorney. (First Nat. Bank v. Navarro, 43 St.
Rep. 813 [Sup. Ct. 1892].)

When authorized, is bound to bring suit — should not be restrained.]

A receiver authorized by the court to sue is bound to proceed with the action,
and should not be restrained by an injunction issued out of another court.
(Winfield v. Bacon, 24 Barb. 154 [Sp. T. 1857].)

Leave to sue improvidently granted.] Leave to sue a receiver improd-

dently granted by the Supreme Court, may be withdrawn by the court, though
sitting in another district. (Attorney-General v. North American Life Ins.
Co., 6 Abb. N. C. 293 [1879].)

Should not sue without authority of court.] A receiver should not

bring an action without the authority of the court. (Foster v. Townshend,
2 Abb. N. C. 29 [Court of Appeals, 1877] ; Merrill v. Lyon, 20 Wend. 410 [Ct.
of Errors, 1836].)

Authority to defend an action must be given by the court itself.]

While the court may properly make an order authorizing a receiver, who has
been made a party defendant to an action brought to foreclose a mortgage, to
employ counsel to advise him as to a defense, an order authorizing him to
defend, if so advised by his counsel, is improper, a,s the question whether the
receiver shall be permitted to litigate the plaintiff's claim is one which must
be decided by the court itself upon a proper petition or affidavit. (Troy Sav-
ings Bank v. Morrison, 27 App. Div. 423 [1898].)

Receiver of a bank may sue its directors for gross negligence.] The

receiver of a national bank may sue one of its directors to recover damages
sustained through gross negligence. If the receiver himself is one of the
directors chargeable with negligence, the action may be brought by one or more
stockholders, acting in behalf of all. ( Brinckerhoflf v. Bostwick, 88 N. Y. 52
[1882].)

Eule 7Y] Gejsteeal Eules of Peactice. 437

Order directing receiver of a bank to sue the directors will not be

reversed on an appeal by the directors.] An order directing the receiver of a
bank to sue the directors thereof will not be reversed on an appeal by the
directors where neither the receiver nor the stockholders join in such appeal.
^People V. Commercial Bank, 6 App. Div. 194 [1896].)

Costs and expenses of suit incurred by a trustee.] A trustee may,

where the trust estate is insufficient to reimburse him, recover in an action,
against the beneficiary whom he represents his reasonable costs and other
expenses incurred necessarily and in good faith in the prosecution or defense,
Iby the express or implied consent of the principal or beneficiary, of an action
or special proceeding relating to the demand secured or to the trust estate, as
the case requires. (Code of Civil Procedure, § 1916.)

A receiver who has prosecuted an action in good faith is entitled to

costs.] Where a receiver has acted in good faith in prosecuting an action it
is proper that he should be allowed the oosts and expenses of its prosecution.

The court has power under sections 827, 1015, 3236 and 3251 of the Code of
Civil Procedure to provide for the payment, out of moneys in the hands of a
receiver, of the fees of a referee who took the testimony and examined the
account of the receiver in pursuanc of an order of the court. (Matter of
Merry, 11 App. Div. 597 [1896].)

If leave not granted, personally liable for costs.] A receiver should

apply to the court for leave to sue as such. If he neglects to do so and judg-
ment is recovered against him, he will not, as a general rule, be exempted from
personal liability for costs. (Smith v. Woodruff, 6 Abb. Pr. 65 [Sp. T. 1858] ;
Phelps V. Cole, 3 Code R. 157 [Sp. T. 1850].)

Want of funds to pay costs — evidence of bad faith in bringing action.]

A want of funds by the receiver to pay the costs of an action brought by him
against a third person, in which he is unsuccessful, ought to be conclusive evi-
dence of bad faith on his part, within the pr-ovision of the Code of Procedure
(§ 317) wliich charges trustees with costs personally when they have been
guilty of bad faith. (Cumming v. Egerton, 9 Bosw. 684 [Sp. T. 1863].)

What not sufiEcient ground to compel payment of costs personally by

receiver in default of assets.] The fact that a receiver against whom a judg-
iment for costs has been recovered has had in his hands funds sufficient to pay
it and has paid other claims larger in amount, is not a ground for compelling
him to pay such judgment on motion. (Devendorf v. Dickinson, 21 How.
Prac. 275.)

Assignee in bankruptcy — liable for costs.] An assignee in bank-
ruptcy who prosecutes unsuccessfully an action which has been brought by
the bankrupt in a court of this State, which was pending when the cause
of action was transferred to the assignee, is liable personally for costs,
under section 321 of the Code of Procedure. (Reade v. Waterhouse, 12 Abb.
[N. S.] 255 [Supr. Ct. 1872].)

Personal liability for costs incurred by his unnecessary defense —

notice.] Where a receiver made a party to an action brought to foreclose a
mortgage, although served with a notice that no personal claim is made
against him, interposes an answer denying any knowledge or information
sufficient to form a belief as to the matters contained in the complaint, he

438 CoTjETs OF Eecoed. [Eule 77

becomes, upon his default at the trial of the action, liable for costs, but only
to the extent of the costs, incurred by the interposition of his answer; and
before the plaintiff can charge the receiver, personally, with the payment of
the costs, he is entitled to due notice of the application for such relief.
(First National Bank v. Washburn, 20 App. Div. 518 [1897].)

Costs not personally charged against, without special order.] In the

absence of a special order, made because of mismanagement, costs cannot be
collected out of an administrator. (Lindslay v. Deafendorf, 43 How. Prac.
90 [Sp. T. 1872 J.)

Order for payment of costs out of fund.] When a receiver of an in-
surance company prosecutes an action for the recovery of money for the
enhancement of the fund of which he is the receiver, and fails to recover, the
defendant is entitled to costs, and to an order for their payment, out of any
funds in the hands of the receiver. (Columbian Ins. Co. v. Stevens, 37 N. Y.
536 [1868].)

Liability where he continues an action.] When such receiver continues

the prosecution of an action begun by the company, before his appointment,
he is chargeable with the costs in like manner as if he were made a party
plaintiff. {lb. See, however. People v Knickerbocker Life Ins. Co., 106
N. Y. 619.)

Cannot enforce trust resulting to creditors, where the debtor pays for

land conveyed to another.] A receiver appointed in proceedings supple-
mentary to execution cannot maintain an action to oiiforce the trust created
by the Revised Statutes in favor of the creditors of one who pays the con-
sideration for lands which are conveyed to another. (Underwood v. Sutcliffe,
77 N. Y. 58 [April, 1879].)

Two receivers of the same property, not appointed.] It was not the

practice of the Court of Chancery to appoint two separate receivers of the
same property in different suits; but the proper course is to extend the
receivership in the first suit over the second, subject to the legal and equi-
table claims of all parties. And the rights of the parties in each suit are
substantially the same as if different persons had been appointed at the
several times when such receivership was granted and extended. (Howell
V. Ripley, 10 Paige, 43 [1843]; Code of Civil Procedure, § 2466.)

Second receiver may be appointed.] Where one receiver has been

appointed in proceedings supplementary to execution in favor of one judgment
creditor a second receiver may be appointed in an action to set aside such
proceedings on the ground of collusion. (Connolly v. Kretz, 78 N. Y. 620
[1879].)

Second receiver in foreclosure.] In a proper case a receiver should be

appointed upon the foreclosure of a paramount mortgage given by a corpora-
tion, although a receiver has previously been appointed of the property of such
corporation in an action instituted for the foreclosure of a junior mortgage.
(Holland Trust Co. v. Consolidated Gas & Electric Light Company, 85 Hun,
454 [1895].)

Reference as to claims — may be without his consent.] The consent

of the receiver is not necessary to an order of the court directing a reference

Eule 77] General Eules of Peactice. 439

-to report as to the settlement of claims. (Guardian Savings Ins. v. Bowling
Oreen Savings Inst., 65 Barb. 275 [Gen. T. 1873].)

Enforcement of claims against a receiver.] Proceedings to compel a

receiver to pay claims cease upon the discharge of the receiver. Power of the
«ourt to vacate an order discharging the receiver. (Matter of the New York
& Western Union Telegraph Company v. Jewett, 43 Hun, 565 [1887].)

Funds in a receiver's hands — paid out on motion.] As the fvmds in

the hands of a receiver are in oustodia legis, it is unnecessary for a petitioiiev
asking a payment therefrom, to file a bill for the purpose of establishing his
equity, and the court may properly direct the claim to be paid on a summary
application by petition. (People v. Bank of Dansville, 39 Hun, 187 [1886].)

Receiver, after order for publication of the summons — appointed with-
out notice.] Where an order of publication has been granted under section
438 of the Code against the owner of the mortgaged premises, the court has
jurisdiction under section 714 of the Code to grant, without notice to the
owner, an order appointing a receiver of the rents, issues and profits of the
premises. (Fletcher v. Krupp, 35 App. l>iv. 586 [1898].)

Relative rights of a prior mortgagee and a receiver appointed without

notice for a junior mortgagee.] The right of a prior mortgagee to the rents
under an .assignment thereof from the mortgagor is superior to that of a
junior mortgagee under an order appointing a receiver in an action to fore-
close the junior mortgage, made without notice to th.; prior mortgagee.
(Harris v. Taylor, 35 App. Div. 462 [1898].)

Receiver in supplementary proceedings — appointed only on notice.]

A receiver cannot be appointed in proceedings supplementary to execution with-
out notice to the judgment debtor. (Vandeburgh v. Gaylord, 7 Wkly. Dili.
136 [Sp. T. 1878]; Ashley v. Turner, 22 Hun, 226 [1880]; Morgan v. Van
Kohnstamme, 11 N. Y. Wkly. Dig. 181 [1880].)

The title to a judgment debtor's real estate vests by operation of

Jaw in a receiver appointed in supplementary proceedings.] The title to real
estate owned by a judgment debtor of whose property a receiver has been ap-
pointed in supplementary proceedings, vests in the receiver hj operation of
law upon the filing of the order appointing the receiver or a certified copy
thereof in the proper county clerk's ofiice; no conveyance is necessary to
transfer the title to the receiver, nor has the court any power to compel the
judgment debtor to execute such a conveyance. (Moyer v. Moyer, 7 App. Div.
523 1896].)

A receiver in supplementary proceedings should not determine adverse

claims.] A receiver in supplementary proceedings who, without asking for
the advice and direction of the court, assumes to decide the rights of adverse
claimants, does so at his peril. (Matter of Hone, 153 N. Y. 522 [1897].)

In supplementary proceedings — both debtor and creditor are repre-
sented by.] A receiver appointed in supplementary proceedings represents
not only the debtor, but the creditor at whose instance he was appointed.
(■Cummings v. Eg«rton, 9 Bosw. 684 [Sp. T. 1863].)

Receiver in supplementary proceedings takes title only to real estate

in this State.] Receiver in supplementary proceedings. The title to only

440 CotTBTs OF Eecoed. [Eule 77

such real estate of the debtor as lies within the State is vested in him.
(Smith V. Tozer, 42 Hun, 22 [1886].)

The receiver's title is superior to that of a bona fide assignee, after

the filing of the order.] The title of a receiver appointed in supplementary
proceedings to claims upon which the debtor has brought suit is superior to
that of a bona fide assignee of such claims under an assignment made subse-
quent to the filing of the order appointing the receiver. (Fitzpatrick v. Moses,
34 App. Div. 24 [1898].)

When not appointed.] A receiver will not be appointed in supple-
mentary proceedings where the only property discovered on the examination
is some contingent fees in cases untried or not determined. (Gibney v. Reilly,
26 Misc. Eep. 275 [1899].)

The order, made without notice, cannot be questioned collaterally.]

While a judgment-debtor is entitled to notice of application for a receiver in
third party proceedings, the order of appointment cannot be questioned col-
laterally because of failure to give such notice. (Gompreoht v. Scott, 27
Misc. Eep. 192 [1899].)

Notice to the attorney of record of the debtor, insufiScient.] Service of

notice of application for the appointment of a receiver upon the attorneys of
record of the debtor in the action in which the judgment was obtained is not
equivalent to service on the debtor personally, and is insufB.cient. (Catholic
University of America v. Conrad, 27 Misc. Rep. 326 [1899].)

Where the order appointing a receiver in supplementary proceedings

is to be filed.] Where the order appointing a receiver in supplementary
proceedings must be filed. (Fredericks v. Niver, 28 Hun, 417 [1882].)

Receiver's title is a qualified one.] The receiver's title is a qualified

one, in the na.ture of a security for the plaintiff in the judgment. Subject to
the right of the receiver to resort to the land to pay the judgment, the title
remains in the judgment-debtor, and a conveyance of such real estate by him
transfers the title thereto, subject to the claim of the receiver. Such re-
ceiver is a necessary party to any action brought to apply the land to the
payment of the judgment. (Moore v. Duffy, 74 Hun, 78 [1893].)

Of rents and profits, no power to pay for repairs.] A receiver of rents

and profits appointed in a foreclosure suit has no power, without the order
of the court, to lessen the funds in his hands by expenditures for repairs.
(Wyckoff V. Scofield, 103 N. Y. 630 [1886].)

^A receiver held liable for rent, when.] In an action brought against a

receiver of the " freehold and leasehold " and of the personal property of a
testator, to whom the tenants were directed to attorn, to recover rent accruing
under a lease, the defendant admitted that he paid the amount of the rent to
September 1, 1878, and in May, 1879, sublet the premises.

Held, that from the admission's in the answer it was to be inferred that de-
fendant went into possession at the time he qualified as receiver, and that he
paid rent from that time up to the date specified. (Wells v. Higgins, 132
N. Y. 459 [1892].)

That it was immaterial as to whether defendant Avas appointed receiver of
the real estate or simply of the rents and profits, as he was appointed re-

Eule TT] General Rules of Peactice. 441

ceiver of the personalty and the lease went to him as such ( 1 R. S. 722, § 5 ;
2 id. 82, § 6), and, therefore, that he was liable for the rent accruing up to
September 1, 1879. (lb.)

Where in an action to set aside a conveyance in fraud of creditors, the

receiver cannot recover rents and profits.] In an action brought by a receiver
appointed in supplementary 'proceedings to set asidie as fraudulent a convey-
ance of real estate executed by the judgment-debtor, so as to subject the prop-
erty to levy and sale on execution, where the receiver simply proves his ap-
podntment without showing the proceedings necessary to vest in him title to
the real estate, he is not entitled to recover the rents and profits. (Wright v.
Nostrand, 98 N. Y; 639 [1886].)

Equitable interests pass to a receiver.] The equitable interest of the

next of kin in the estate of an intestate is property which passes by operation
of law to a receiver duly appointed. (Matter of Estate of Eainey, 5 Misc.
Rep. 367 [Orange Co. Surrogate's Ct. 1893].)

The court may forbid interference with the property in the receiver's

hands.] A court having power to appoint a receiver of the assets of an
insolvent corporation may, in aid of that appointment, forbid any after inter-
ference by way of levy and seizure by attachment or execution with the prop-
erty in his possession. (Woerishoffer v. N. R. Con. Co., 99 N. Y. 398 [1885].)

Motion to determine right to funds — in what district to be made.]

Where a receiver has been appointed in proceedings had for the compulsory
dissolution of a corporation under 2 R. S. 462,* an application to determine
the right of a person to share in the assets, must be made in the district in
which the receiver was appointed. (Rinn v. Astor Fire Ins. Co., 59 N. Y. 145
[1874].)

-^ Right of temporary receiver of partnership.] A temporary receiver
appointed in an action for dissolution and settlement of a partnership, is a
mere common-law receiver with no title to the partnership property, and has
no authority to maintain an action to recover partnership assets paid out by
one partner on account of his individual indebtedness. (Felter v. Haddock,
11 Misc. Rep. 297 [N. Y. Com. PI. Gen. T. 1896].)

A temporary receiver — powers of.] MTiere a temporary receiver, ap-
pointed in an action to sequestrate the property of a corporation, has duly
executed and filed the requisite bond, land thereafter, under the judgment in
the action, is continued a permanent receiver, while a further bond may be
exacted in the ddsoretion of the court, he is under no obligation to furnish it
until required to do so, and his failure to do so does not affect his power to
act as permanent receiver. (Jones v. Blun, 145 N. Y. 333 [1895].)

What must be proved before appointment.] As to what must be

proved before court will be justified in appointing receiver, see People v.
Oriental Bank, 124 App. Div. 741.

Not for the purpose of ousting a partner from management.] Receiver

should not be appointed in action brought by a partner simply for the purpose
of ousting another partner from the management. (Shubert v. Laughlin, 122

* Repealed.

442 CouETs OF Recoed. [Rule 77

App. Div. 701. See, also, Greenwald v. Gotham-Attucks Music Co., 118 App.
Div. 29.)

In foreclosure proceedings.] When court will regard appointment of

receiver in foreclosure proceedings as improper. (Jarmulowsky v. Eosen-
ibloom, 125 App. Div. 542. See, also, Pizer v. Herzig, 121 App. Div. 609;
Woerishoffer v'. People, 120 id. 319; Baier v. Kelley, 55 Misc. Eep. 368.)

As (to bond of receiver, see Coe v. Patterson, 122 App. Div. 76.

Will not be appointed in foreclosure unless it is shown property is

inadequate security. (Eabinowitz v. Power, 115 N. Y. Supp. 266.)

Ancillary receiver.] ^Tien motion for ancillary receiver is properly

denied. (Chicago Title & Trust Co. v. German Ins. Co., 119 App. Div. 347.)

Receiver's title to property.] As to title to and possession of property

by receiver, see Michel v. Betz, 108 App. Div. 241; Stearns v. Early, 49 Misc.
Eep. 615; St. Paul Hotel Co. v. Seagrave, 48 id. 657.)

Failure to file bond.] Order may be made nunc pro time and his

failure to file a bond cannot be attacked collaterally. {Boynton v. Sprague,
100 App. Div. 443.)

—^Commissions of.] (See Adams v. Elwood, 104 App. Div. 138.)

How far the title to corporate property vests in him. See Coepoea-

TIONS, post.

INSTRUCTIONS — A receiver is entitled to.] A receiver is entitled to
receive instructions from the court as to his duty. (Smith v. N. Y. Consoli-
dated Stage Co., 18 Abb. 419 [N. Y. Ck>m. PI. 1864; Curtiss v. Levit,, 1 id.
274 [Gen. T. 1855] ; In the Matter of Van Allen, 37 Barb. 225 [Sp. T. 1861] ;
People ex rel. Atty.-Gen, v. Security Life Ins., etc., Co., 79 N. Y. 267 [1879].)

Application by a party not interested — disregarded.] A receiver will

not be instructed by the court on the application of a 'party who is not in-
terested in the suit. {Vincent v. Parker, 7 Paige, 65 [1838]. See, however,
Howell V. Ripley, 10 id. 43 [1843].)

CONTEMPT — To sue a receiver without leave.] Suing a receiver without
permission of the court, is a contempt. (Taylor v. Baldwin, 14 Abb. 166
[Chamb. 1862]; Rich v. Doutrell, 9 id. 356 [Sp. T. 1859].)

Action against a receiver — good until the court interferes.] If a

receiver, when sued, fails to apply to the court for pTOtection, the action may
be continued as though permission to bring the same had been obtained from
tlie court. (Camp v. Barney, 4 Hun, 373 [1875].)

The court has jurisdiction although the suit is without leave.] The

commencement of an action against a receiver without leave does not affect
the jurisdiction of the court. When an action has been so commenced the
court acquires jurisdiction of the receiver by the service of the summons upon
him, and the remedy of the receiver is either to apply for a stay of proceedings
upon the part of the plaintiff or his punishment for contempt of court, or
both, and upon an application therefor, if the court believes that the case is
a proper one for granting leave, permission to make tlie receiver a party de-
fendant will be granted nunc pro tunc. (Hirshfeld v. Kalischer, 81 Hun, 606
[1894].)

Eule 77] Geneeal Rules oe Peactice. 443

Inteifeience with a receiver in collecting rents is a contempt.] In

supplementary proceedings, where a debtor interferes with a receiver who has
iproperly filed his order of appointment, while collecting rents from the ten-
ants occupying his real property, the debtor is guilty of a contempt of court.
(Vt. Marble Co. v. Wilkes, 30 N. Y. Supp. 381 [Sup. -Ct. 1894].)

Refusal of a judgment-debtor to deliver goods.] Refusal of a judg-
ment-debtor to deliver possession of his store and goods to a receiver in sup-
plementary proceedings is a contempt of court, which is not excused by a
statement that the goods were commingled with goods consigned to him for
sale so that it wias impossible to separate them without a day's labor and
going over the stock piece by piece. (Matter of Camerick, 34 App. Div. 31
[1898].)

Interference with the receiver's possession.] Interference by a judg-
ment-debtor with the receiver's possession after he surrendered his property
to the latter constitutes a contempt of court. (Sainberg v. Weinberg, 25 Misc.
Hep. 327 [1898].)

Failure to pay to a receiver as directed, money deposited in the name

of the debtor's wife.] A judgment-debtor is not excused from complying
with an order directing him to pay to the receiver moneys deposited in bank
in the name of his wife, from whom he has a power of attorney to use the
fund as his own, by proof that he was an insurance broker and was accustomed
ito deposit in such account checks received for premiums and pay the com-
panies with his own checks, in the absence of evidence identifying the money
in bank as that of the insurance companies. (Matter of Weld, 34 App. Div.
471 [1898].)

When a failure to appear on an adjourned day is not a contempt.]

Where a judgment-debtor who, after a partial examination and a payment
made on account failed to appear on the third adjourned day, appears on the
return of an order to show cause, makes oral excuse and submits to further
examination, a refusal to punish for the contempt is not an abuse of dis-
cretion. (Lassere v. Stein, 25 Misc. Rep. 423 [1898].)

A receiver's right of action — dependent on the filing of his bond.]

An action cannot be maintained by a receiver unless proof is given of the
filing of his bond, when, by the order appointing him receiver, his power to
take the property is dependent upon such bond. (Hegewiseh v. Silver, 50 St.
Eep. 448 [Sup. Ct. 1892].)

CORPORATIONS — In the case of corporations.] A receiver of a corpo-
ration represents both it and its creditors and stockholders. (Atty.-6en. v.
■Guardian Mut. iLife Ins. Co., 77 N. Y. 272 [1879] ; Mason v. Henry, 152 id.
629 [1897].)

A receiver not appointed unless a clear necessity be shown.] A re-
ceiver of a corporation will not be appointed unless the persons who invoke
such action clearly establish that the remedy is necessary to protect their in-
terests from imminent and serious injury. (Thalmann v. Hoffman House, 27
Msc. Rep. 140 [1899].)

— Limitation on the power to appoint a receiver of a corporation.] The
power of the Supieme Court to appoint a receiver of a corporation is limited

444 CouETS OF Recoed. [Rule 7T

to the cases prescribed by statute. (Lehigh Coal Co. v. Central R. R. of New
Jersey, 43 Hun, 546 [1887].)

Default in interest justifies a receivership.] Where a railroad company

has failed to pay interest the bondholders are entitled to a receiver, even if the
affairs of the company are shown to be properly managed. (Van Benthuysen
v. Central New England & Western R. R. Co., 45 St. Rep. 16 [Sup. Ct. 1892].)

The title to corporate property does not vest in a temporary receiver.}

A temporary receiver appointed prior to the Code of Civil Procedure was not
vested with the title to the property of the corporation. (Herring v. N. Y.,
L. E. & W. R. R. Co., 105 N. Y. 340 [1887]. See Decker v. Gardner, 124 id.
334.)

How far the title to corporate property vests in a temporary receiver.]

It seems, that a temporary receiver is vested with the title to the corporate
property so far as the purposes of his trust require. (Matter of Smith Com-
pany, 31 App. Div. 39 [1898].)

To what property the receiver takes title.] A receiver of an insolvent

national bank acquires no right to property in the custody of the bank which
it does not own as against the owner. (Corn Ex. Bank v. Blye, 101 N. Y. 303
[1886].)

How far the receiver's appointment dates back.] The appointment of

a receiver of a corporation made in proceedings for its voluntary dissolution
relates back to the date when his appointment was made and not to the filing
of the petition in the dissolution proceedings. (Matter of Muehlfeld &
Haynes Piano Co., 12 App. Div. 492 [1896].)

Property transferred to a receiver.] All the corporate property and all

the title to property of a corporation is transferred to the receiver of suoh
corporation upon his appointment, even though a trust has been created con-
cerning such property. (Matter of Home Providence Safety Fund Assn., 39
St. Rep. 437 [Sup. Ct. 1891].)

Relative rights of a sequestration and mortgage foreclosure receiver in

future earnings.] Where a corporate mortgage purports to include future
earnings and products, but also provides that until default the mortgagor
shall have the use of the earnings in the conduct of its business, and that on
default the trustee may enter into possession, exercise the corporate functions
and appropriate the earnings, the mortgagor does not, as against general
creditors, operate as a lien on the earnings until actual entry and possession
under it, and as between a receiver in sequestration proceedings and a
receiver on foreclosure the former is entitled to debts and accounts due the
company for sales of its products. (New York Security & Trust Co. v.
Saratoga Gas & Electric Light Co., 159 N. Y. 137, revg. 30 App. Div. 98
[1899].)

But what act a receiver does not make himself a party to an action

against the corporation.] How far a receiver of an insolvent corporation
who conducts an appeal taken by the company from a judgment recovered
against it before its dissolution, is bound by a judgment recovered against
the company upon a new trial ordered by the appellate court. (People v.
Knickerbocker Life Ins. Co., 106 N. Y. 621.)

Eule 77] Gewebal Eules of Peactice. 445

Not made a party after his final discharge.] , A receiver of a bank

who has been finally discharged cannot be allowed to intervene in proceedings
to reach newly-discovered assets. (Matter of Grand Central Bank, 27 Misc.
Eep. 116 [1899].)

Not a necessary party to a foreclosure.] He is not a necessary party

to a mortgage foreclosure suit against the corporation. (People v. Knicker-
bocker Life Ins. Co., 43 Hun, 574 [1887].)

Receiver's certificates, issuing of.] Power of the court in an action to

foreclose a mortgage on the property of a railroad corporation to authorize
a receiver to issue certificates of indebtedness for work and labor. (M. T.
Co. V. T. V. & C. E. E. Co., 103 N. y. 245 [1886].)

Enforcible only in the court directing their issue.] Receiver's certifi-
cates must be enforced in the court directing their issue. ( Passage v. Danville
<St Mt. Morris E. E. Co., 41 App. Div. 182 [1899].)

Effect of a receiver's certificate on a prior mortgage lien.] Eeceiver of

a corporation. Power of the court to direet him to issue certificajtes to pay
wages due to employees. When they cannot be made to affect a prior lien by
mortgage. (Raht v. Attril, 42 Hun, 414 [1886].)

Receiver — authority to issue certificates of indebtedness.] Eeceiver

of a railroad. Power of the court to authorize the issue of certificates of in-
debtedness and to give them priority over existing mortgage liens. (Metro-
politan Trust Co. V. Tonawanda Eailroad Co., 40 Hun, 80 [1886].)

Receiver of a corporation — a judgment should be entered against him

as receiver and not personally — when it may be so entered after he has
been discharged as a receiver.] In an action brought by the creditor of a
corporation against a receiver thereof in his official capacity no personal judg-
ment can be rendered against him. The judgment must be rendered against
him as receiver and' must be made payable out of funds held by him in that
capacity. The fact that the receiver has been discharged during the pend-
ency of the action brought by the creditor and has transferred all the prop-
erty and assets held by him to another corporation or person pursuant to an
order of the court, does not render it improper to thereafter enter a judgment
in an action against him as receiver when it is made payable out of funds
held by him and applicable to that purpose. (Woodruff v. Jewett, 37 Hun,
205 [1885].)

Receivers of a corporation — in what district the application for the

appointment must be made.] Chapter 378 of 1883, in relation to receivers of
corporations including the ninth section thereof, which provides that the appli-
cation shall be made in the judicial district where the principal office of the
corporation is located, applies only to receivers of corporations appointed in
proceedings in bankruptcy. (U. S. Trust Co. v. N. Y., W. S. & B. E. Co.,
35 Hun, 341 [1885]; affd., 101 N. Y. 478 [1886].)

Act of 1897 limiting to receivers the right to enforce the liability of

stockholders in a bank.] Chapter 441, Laws of 1897, limiting to the receivers
of a bank the right to enforce the liability of stockholders under section 52
of the Banking Law, although given a retroactive effect, is not unconstitutional

446 Courts of Eecoeu. [Rule 7T

as to either the stockholders or creditors, as it only affects the remedy. (Per-
sons V. Gardner, 42 App. Div. 490, affg. 26 Misc. Rep. 663 [1899].)

Receiver of foreign corporations.] An auxiliary receiver of a foreign

corporation, appointed in the State of New York, is merely the custodian of
the property within tlie State for the purpose of preserving the assets in
order that creditors may reach them without being compelled to go to a,
foreign jurisdiction to prove their claims, and has only the powers conferred
by the order appointing him. (Buckley v. Harrison, 10 Misc. Eep. 683 [N. Y.
Com. PI. Gen. T. 1894].)

Power of the courts o* the State of New York.] The courts of the

State of New York have power, on the application of stockholders of an in-
solvent foreign corporation doing business and having assets in the State of
New York ( but no officers empowered to hold such assets ) , to appoint a re-
ceiver of such corporation for the purpose of preserving the assets within
their jurisdiction for the protection of domestic creditors. (Hall v. Holland
House Co., 12 Misc. Rep. 55 [N. Y. Com. PI. Gen. T. 1895].)

Domestic creditors only represented.] A receiver so appointed repre-
sents only the domestic creditors of the corporation. (Hall v. Holland House
Co., 12 Misc. Rep. 56 [N. Y. Com. PI. Gen. T. 1895].)

Where a receiver of a foreign corporation will be appointed.] Where a

foreign corporation in taking its funds out of the State of New York thereby
injures persons residing within the State, the court, in an action brought to
prevent this course, may appoint a receiver for said corporation, the power of
the court not being dependent upon its jurisdiction of the person of defend-
ant. (Glines v. Supreme Sitting Order of Iron Hall, 22 Civ. Proc. R. 437
[Sup. Ct. 1892].)

A receiver of a national bank, not a foreign receiver.] A receiver of

a national bank of another State, appointed by the United States Comptroller
of the Currency, will not be treated by the courts of the State of New York
as a foreign receiver, and can sue therein to recover an assessment levied upon
the shareholders of the bank. (Peters v. Foster, 56 Hun, 607 [1890-].)

Receiver of insolvent insurance corporations.] The provisions of sec-
tion 1785 of the Code of Civil Procedure, relative to actions for the dissolu-
tion of corporations on the ground of insolvency, are limited in the case of
mutual insurance companies by the provisions of section 43 of chapter 690
of the Laws of 1892, providing for the service of a requisition on the officers
of such a corporation requiring them to make the deficiency good. (People v.
Equitable Mutual Fire Ins. Co., 12 Misc. Rep. 556 [N. Y. Com. PI. Sp. T.
1895].)

Advances by a receiver to a corporation.] Where the stock of a cor-
poration is among the assets of a receiver, he may make advances to such
corporation. (Kalbfleisch v. Kalbfleisch, 37 St. Rep. 183 [Sup. a. 1891].)

Loan to a receiver of a corporation whose appointment was void.] A

loan to a receiver of a corporation whose appointment was subsequently de-
clared void, cannot be enforced. (Ludington v. Thompson, 4 App. Div. 117
[1896].)

Eule 77] Geneeal Eules oe Peactice. 447

Appointment by a final judgment supersedes a prior appointment of a

temporary receiver in another action.] The appointment, by a final judgment
of the Supreme Court of the State of New York, of a permanent receiver of
the property within this State of a foreign corporation, with power to collect
and distribute the same, supersedes a prior appointment by the same court,
although made in another action and in another judicial district, of a tem-
porary receiver appointed to preserve the property of the same corporation
until a final judgment for its distribution should be entered. (Glines v.
Binghamton Trust Co., 68 Hun, 511 [1893].)

Receiver's disbursements in preserving property.] A receiver is au-
thorized to incur expenses and charges for the preservation and use of the
property which comes into his hands by virtue of the receivership. (Rogers
V. Wendell, 54 Hun, 540 [1889].)

Preferential payment, when not proper for supplies.] A person who

furnishes supplies to an elevated railroad company prior to the commence-
ment of an action to foreclose a mortgage upon its property, in which a
temporary receiver was subsequently appointed, is not entitled to a prefer-
ential payment of his claim out of the assets in the hands of such receiver,
where there is no provision in the order appointing the receiver authorizing
him to pay any of the corporation's debts. (Mercantile Trust Co. v. Kings
County El; R. Co., 40 App. Div. 141 [1899].)

A receiver may assert the unconstitutionality of a statute of limita-
tions.] The receiver of a corporation who is seeking to enforce the common-
law liability against the directors is entitled to assert the unconstitutionality
of a statute limiting the time within which such action may be commenced.
(Gilbert v. Ackerman, 159 N. Y. 118 [1899].)

When court will appoint receivers of corporations.] Court will ap-
point receivers in an action brought in name of people to dissolve corpora-
tion which has remained insolvent for a year, althongh receivers have been
appointed by Federal court in an action by nonresident creditors. (People v.
N. Y. City Ry. Co., 57 Misc. Rep. 114; Wtiber v. Wallerstein, 111 App. Div.
700; Dolan v. Conlan, 114 id. 570.)

Receiver of corporation which is not insolvent will not be appointed

merely for the reason that an owner of half of the stock is dissatisfied with
the management. (Hastings v. Tousey, 121 App. Div. 815.)

Duty of court taking possession of railroad and appointing receiver

therefor. (Rochester Trust, etc., Co. v. Oneonta, etc., Ry. Oo., 122 App. Div.
193.)

Deputy Attorney-General as receiver.] In a case where a receiver of

a bank has been appointed at the instance of the Attorney-General, held, that
■a deputy attorney-general who resigned his position for that special purpose
should not be appointed counsel to the receiver. (People v. Brooklyn Bank,
125 App. Div. 354. )

Foreign corporation.] As to appointment of receivers of foreign cor-
porations, see Courtright v. Vreeland, 64 Misc. Rep. 46; Kenkart v. Boden-
mann, 64 Misc. Rep. 140.)

448 CouETs OF Eecoed. [Kule 77

Receiver pendente lite.] Held, in Matter of Howell v. German Theater,

(64 Misc. Rep. 110), that common-law receiver of property of corporation
may be appointed pendente lite without making him receiver of corporation.
(See, also, Joseph v. Herzig, 130 App. Div. 707.)

— In action for sequestration of property of domestic corporation.] It
is improper to appoint temporary receiver on complaint unaccompanied by
affidavit showing necessity. (Federman v. Standard Churn Mfg. Co., 128
App. Div. 493.)

Misconduct of officers.] Not sufficient to justify appointment of re-
ceiver unless it is shown to court's satisfaction that such action is necessary
for the preservation of the rights of creditors or stockholders. (Fenn v.
Ostrander, 132 App. Div. 311.)

COMMISSIONS — By what statute governed.] The act of 1883 (chapter
378), in relation to receivers of corporations, including the second section
thereof, in reference to receiver's fees, applies only to receivers of corporations
appointed in proceedings in bankruptcy, and a receiver appointed in an action
to foreclose a mortgage executed by a corporation is not entitled to the fees
specified in said section. The allowance of commissionis to such a receiver is
governed by the provisions of the Code of Civil Procedure (§ 3320) providing
for the allowance by the court or the judge where not " otherwise specially
prescribed by statute." (U. S. Trust Co. v. N. Y., West Shore & Buffalo
E. R. Co., 101 N. Y. 478 [1886].)

Receivers of insolvent corporations — their commissions are to be de-
termined by the law in force at the time of the appointment of the receiver.
(People V. The Mutual Benefit Associates, 39 Hun, 49 [1886].)

Commissions of a temporary receiver — by what act governed and on

what computed.] The amount of the commissions of a temporary receiver
appointed on an application for the voluntary dissolution of a corporation is
governed by section 3320 of the Code of Civil Procedure. Section 76 of
chapter 8 of part 3 of the Revised Statutes applies only to permanent
receivers.

Such commissions are not to be computed simply upon the cash which actu-
ally comes into the hands of the temporary receiver, appointed under section
2423 of the Code of Civil Procedure, but he may be entitled, in an extreme
ease, to two and one-half per cent of the value of the property coming into
his hands for receiving and protecting the same, such amount to be deter-
mined and allowed by the court. (Matter of Smith Company, 31 App. Div.
39 [1898].)

Receiver's commissions — amount thereof. (See Code of Civil Proce-
dure, § 3320.)

Allowance — increase of when less than $ioo.] Act amending section

3320, in relation to receiver's commissions, by providing that if his commis-
sions do not amount to $100, the court or judge may, in his discretion, allow
him such a sum, not exceeding $100^ as shall be commensurate with the serv-
ices rendered. (Laws 1889, chap. 94. See, also. People v. Oriental Bank,
129 App. Div. 865; People v. Brooklyn Bank, 64 Misc. Rep. 538; People v.
Knickerbocker Trust Co., 127 App. Div. 215.)

Rule 78] Genekal Ruxes of Peactioe. 449

MOTIONS AFFECTING — Sequestration of the property of a corporation,
appointment of a receiver.] Action to sequestrate the property of a corpora-
tion. Notice of a motion to appoint a receiver must be given to the Attorney-
General. When a second receiver of the company may object to the invalidity
of the order appointing the first. Powers and duties of the receiver appointed
in an action for sequestration. (Whitney v. N. Y. & Atlantic Railroad Co.,
32 Hun, 164 [Gen. T. 1884].)

Service of papers on Attorney-General.] Motions affecting receivers of

insolvent corporations. What papers must be served upon the Attorney-
General under chapter 378 of 1883. (Greason v. Goodwillie-Wyman Co., 38
Hun, 138 [Gen. T. 1885].)

Receiver — notice of motion for his appointment.] A general judgment

creditor of a corporation is not entitled to notice of motion for the appoint-
ment of a receiver thereof. (Morrison v. Menhaden Co., 37 Hun, 522 [Gen. T.
1885].)

RULE 78.

Receiver — When He May Sue — Costs.

Whenever a receiver, appointed under proceedings supplement-
ary to execution, shall apply for leave to bring an action, lie shall
present and file with his application the written request of the
creditor in whose behalf he was appointed, that such action be
brought; or else he shall give a bond with sufficient security and
properly acknowledged and approved by the court, to the person
against whom the action is to be brought, conditioned for the pay-
ment of any costs which may be recovered against such receiver.
And leave to bring actions shall not be granted except on such
written request, or on the giving of such security.

In all other cases where a receiver applies to the court for leave
to bring an action, he shall show in such application that he has
sufiicient property in his actual possession to secure the person
against whom the action is to be brought for any costs which he
may recover against such receiver; otherwise the court may re-
quire the receiver to give such bond conditioned for the payment
of costs, and with such security as is above mentioned.

Rule 85 of 1877. Rule 79 of 1880. Rule 79 of 1884. Rule 79 of 1888.
Enle 78 of 1896.
See notes under Rule 77.

29,

450 . CouETS OF Kecord. [Rule 80

RULE 79.

Who May be Referee, and the Duties of a Referee.

Except In a case provided for by section 101.1 of the Code of
Civil Procedure, no person, unless lie is an attorney of the court
in good standing, shall be appointed sole referee for any purpose
in any pending action or proceeding. Nor shall any person be
appointed a referee who is the partner or clerk of the attorney,
or counsel, of the party in whose behalf such application for
such appointment is made, or who is in any way connected in
business with such attorney or counsel, or who occupies the same
office with such attorney or counsel. All moneys received by a
referee appointed to sell real property shall be forthwith deposited
by the referee in his own name as referee in a bank or trust
company authorized to receive on deposit court funds; and if
there be no such depository in the city or town in which the
referee resides, then he shall deposit such moneys forthwith in a
depository located in an adjoining city or town, or with the
county treasurer of the county in which the action or special pro-
ceeding is pending; and such moneys so deposited shall not be
withdrawn, except upon the order of the court.

Kule 86 of 1877. Rule 80 of 1880. Eule 80 of 1884. Rule 80 of 1888.
Rule 79 of 1896. Rule 79, as amended, 1910.

Referee — qualifications of.] (See section 1024 of the Code of Civil

Procedure. See, also, Fortunato v. Mayor, 31 App. Div. 271; Baird v. Mayor,
74 N. Y. 382.)

When referee not disqualified. (Fleck v. Cotin, 131 App. Div. 248,

citing Sentenis v. liadew, 140 N. Y. 463.)

ETIIE 80.

Sequestration of Property — Motion for Receiver — Where Made — Effect of,
on Subsequent Suits — Remaval of.

All motions for the sequestration of the property of corpora-
tions, or for the appointment of receivers thereof, must be made
in the judicial district in which the principal place of business of
said corporations, respectively, is situated, except that in actions
brought by the Attorney-General in behalf of the people of this
State, when it shall be made to appear tha* such sequestration is a

Eule 81] Gei^eeal Eules of Practice. 451

necessary incident to the action, and that no receiver has already
been appointed, a motion for the appointment of one may be made
in any county within the judicial district in which such action
is triable. 'So motion can be made, or other proceeding had for
the removal of a receiver, elsewhere than in the judicial district
in which the order for his appointment was made. And where a
receiver has been appointed, his appointment shall be extended
to any subsequent suit or proceeding relating to the same estate or
property in which a receiver is necessary.

Rule 87 of 1877. Rule 81 of 1880. Rule 81 of 1884. Rule 81 of 1888.
Rule 80 of 1896.

CODE OF CIVIL PROCEDURE.

§ 1781. Action by judgment-creditor for sequestration. See General Corpora-
tion Law, § 100.

I 1788. Appointment of receivers temporary and permanent — powers of,
etc. General Corporation Law, §§ 104, 106.

§ 1789. Larger powers may be conferred on temporary receivers. See Gen-
eral Corporation Law, § 105.

Title to real estate.] How far it vests in the sequestrator. (Foster

V. Townsend, 2 Abb. N. C. 29 [Ct. of App. 1877.] See Code of Civil Procedoire,
§ 1772; Donnelly v. West, 17 Hun, 563-568.)

See notes under Rule 77.

RTJIE 81.

Receiver — Power of, to Employ Counsel.

No receiver shall have power to employ more than one counsel,
except under special circumstances and in particular cases requir-
ing the employment of additional counsel, and in such cases only
upon special application to the court, showing such circumstances
by his petition or affidavit, and on notice to the party or person
on whose behalf or application he was appointed. This rule shall
^Pply to all receivers, present and future ; and no allowance shall
be made to any receiver for expenses paid, or made, or incurred
in violation of this rule.

Rule 88 of 1877. Rule 82 of 1880. Rule 82 of 1884. Rule 82 of 1888.
Rule 81 of 1896.

ATTORNEY — As to the employment of an attorney.] (See Corey v. Long,
12 Abb. [N. S.] 427 [N. Y. Supr. Ct. Sp. T. 1872].)

4-52 CouETs OF Eecoed. [Eule 82

Who should not be employed.] An attorney who has been employed by

either of the parties to the action in which the receiver was appointed should
not be employd by the receiver. {Warren v. Sprague, 4 Edw. 416; Panton v.
Zebley, 19 How. Prac. 394 [N. Y. Supr. Ct. Sp. T. 1860] ; Gumming v. Egertoti,
9 Bosw. 684 [N. Y. Supr. Ct. Sp. T. 1863].)

Emplojnnent of a receiver's partner.] While the employment by a

receiver of his partner as counsel in legal matters relating to the receiver-
ship is not to be commended, yet, when it clearly appears that the receiver
has not and is not to share in the compensation for such services, there is no
law which prevents such employment and payment. (Matter of Simpson, 30
App. Div. 562 [1899].)

Commission to take testimony — the rule is not applicable to.] The

rule has no application to proceedings under a commission to take testimony
for use outside of the State. (Matter of Garvey, 2.5 Misc. Rep. 353 [1898].)

A stranger cannot object.] A stranger sued by the receiver cannot

object that he has employed an improper attorney. (Warren v. Sprague, 11
Paige, 200 [1844] ; Ryckmau v. Parkins, 5 id. 543 [1836].)

Compensation of.] Wliere the expenses of a receivership have con-
sumed nearly one-half of the fund and the attorney for the receiver has
received nearly one-third of it, the receiver should not be authorized to pay
him any further sum, though his services may be worth more. (Kemochan
V. Ballance, 26 Misc. Rep. 435 [1899].)

See notes under Rule 77.

RULE 82.

Examination of a Party Before TriaL

When an examination is required under sections 870, 871, 872
of the Code of Civil Procedure, the affidavit shall specify the facts
and circumstances which show, in conformity with subdivision 4
of section 872, that the examination of the person is material and
necessary.

Rule 21 of 1871, amended. Rule 21 of 1874, amended. Rule 89 of 1877.
Rule 83 of 1880. Rule 83 of 1884. Rule 83 of 1888. Rule 82 of 1896.

CODE OF CIVIL PROCEDURE.

§ 870 et seq. Deposition of a party before trial.
See note under Rule 14.

APPLICATION — What must be shown.] Applicant must show that the
examination is necessary to enable him to prepare his pleading. (Hynes v.
McDcrmott, 7 Daly, 313 [1878] ; Winston v. English, 14 Abb. Prac. [N. S.]
119 [Gen. T. 1873] S. C., 44 How. Prac. 498; Duffy v. Lynch, 36 id. 509 [Sp. T.
1869]; Greene v. Herder, 7 Rob. 463 [Sp. T. 1865]; Heishon v. Knickerbocker
Life Ins Co., 13 J. & S. 34 [1879].)

Eule 82] General Eules of Peactice. 453

The Code and Rules require that facts and circumstances be stated,

showing the materiality and necessity of the testimony. (Hughes v. Harbor
& Suburban, etc., Ass'n, 131 App. Div. 184. See, also, Mithertz v. Goldschmidt
Bros. Co., G4 Misc. Rep. 460; Ward v. Hoflfman Co., 121 App. Div. 636; Bos-
cow itz V. Sulsbacher, No. 1, Id. 878; Ryan v. N- Y. Central, etc., R. E. Co.,
124 id. 34.)

Where a complaint seeking an accounting by an agent has been served

and demurrer thereto is pending, so that as yet there are no issues of fact
to be tried, the i)!aintiff is not entitled to examine the defendant before trial.
(Sprague v. Currie, 129 App. Div. 365. See, also, Gould v. Gould, 125 id. 375;
Tiu-ck V. Chisholm, 53 Misc. Rep. 110.)

The special circimistances required by the Code (§ 872, subd. 5) are

present when it is apparent that witness is hostile and under the control of
the adverse party. (Automobile Club of America v. Canavan, 128 App. Div.
426.)

Plaintiff in partition action held entitled to examination of witness

before trial for the purpose of obtaining facts necessary for service by pub-
lication. (Schwarz v. Robinson, 129 App. Div. 404.)

An order which is directed against the officers of the corporation indi-
vidually and does not reqviire the defendant corporation to be examined will
be ^-acated. (Herrman v. Tapley Co., 64 Mi.-5e. Rep. 466.)

Referee has power to examine party and to issue subpoena duces tecum,

although the court in granting the order for examination before trial had
refused to direct the production of books and papers. (Littlefield v. Ganse-
voort Bank, 62 Misc. Rep. 339.)

Practice of the courts is to regard the privilege of examining opposing

party as a substantial right when free from abuse. (Bender v. Bork, 52
Misc. Rep. 295; Gilroy v. Interborough-Met. Co., 55 id. 32.)

Where the affidavit complies with the requirements of the Code and

of the General Rules of Practice, court has no power to make other require-
ments. (Shouts V. Thomas, 116 App. Div. 854.)

Fact that cause is actually on trial before referee is not ground for

vacating order for examination before trial. (Hallenborg v. Greene, 120 App.
Div. 813.)

Plaintiff not entitled to order for the examination of officers of cor-
poration defendant in order to ascertain upon whom to serve summons so as
to obtain jurisdiction over another corporation. (Grant v. Greene Consol.
Copper Co., 118 App. Div. 853. See, also, McKeand v. Locke, 115 id. 174;
Hill V. McKane, Id. 537; Istok v. Senderling, 118 id. 162; McKenna v. TuUy,
109 id. 598; Turck v. Chisholm, 53 Misc. Rep. 110; Bender v. Bork, 52 id.
295; HirsehEeld v. Rosenthal Co., 51 id. 644; Hinds, Noble & Eldi-edge v.
Bonner, 52 id. 461; Lewis v. City of Buffalo, 115 App. Div. 735; Bankers'
Money Order Ass'n v. Nachod, 120 id. 732; Crompton v. Dobbs, 119 id. 331;
Merrill & Baker v. Woolworth, 53 Misc. Rep. 253; Grant v. Leopold, 61 id.
79; Solar Baking Powder Co. v. Royal Baking Powder Co., 128 App. Div.
550; Lowther v. Sullivan, 63 Misc. Rep. 51; Wilkens v. Torrens, 133 App. Div,
646; Regan v. Gorham Co., 129 id. 315; Schweinberg v. Altman, 131 id. 795;

454 Courts of Eecoed. [Kule 82

Cohen v. Hecht, 128 id. 511; Loewy v. Gordon, 129 id. 459; Brick v. Shaff,
128 id. 264; Oakes v. Star Co., 119 id. 358; Chittenden v. San Domingo Imp.
Co., 132 id. 169; Chartered Bank of India v. North River Ins. Co., 136 id.
646; Mithertz v. Goldschmidt Bros. Co., 64 Misc. Rep. 460; Akhurst v. ^fat'I
Starch Co., Id. 445; Hughes v. Harbor & Sub. Bldg., etc., Ass'n, 131 App. Div.
184; Segsohneider v. ^'i'aring Hat Mfg. Co., 134 id. 217; Wilkens v. Am.
Bank of Lorrean, 133 id. 646.)

Affidavit for the examination of a party.] To authorize the granting

of an order for the examination of a party before trial, the affidavit must
specify the facts and cii'cumstances showing the testimony of the party to
be material and necessary; it is not sufficient to allege that the testimony of
the party is ma,tcrial and necessary for tlie party making the application and
the prosecution of the action, and that the party cannot safely proceed to
trial without examining Mm. (Crooke v. Corbin, 23 Him, 176 [1880] ; Bur-
nett V. Mitchell, 20 Misc. Rep. 547 [1899].)

Examination not ordered when the witness is privileged to refuse to

testify.] The affidavit did not show that there was any fact to which the
witness could testify, except such as would be privileged. Held, that an
order directing examination thereon should be reversed on appeal. (Abbott-
Downing Co. V. Faber, 87 Hun, 299 [1895].)

Affidavit on information and belief.] An affidavit for an examination

of a defendant before trial, made on information and belief, is sufficient if it
states the grounds of belief. (Leach v. Haight, 34 App. Div. 522 [1898].)

The affidavit should be made by the plaintiff.] An affidavit on au

application for an order for tlie defendant's examination before trial should
be made by the plaintiff, and not by the plaintiff's attorney alone. (Ziegler
v. Lamb, 5 App. Div. 47 [1896].)

When the affidavit may be made by a third person.] An affidavit to

procure the examination of a party before trial may be made by a third per-
son having knowledge of the facts. (The Railway Age & Northwestern Rail-
roader V. Pryibil, 18 Misc. Rep. 561 [1896].)

Existence of a cause of action — materiality.] 'RTiat allegations do

not establish the existence of a cause of action — materiality of the testi-
mony— how it must be alleged. (Hale v. Rogers, 22 Hun, 19 [1880].)

. Materiality to be shown.] An application by a defendant should show

how the facts are material to the defense. (Schepmoes v. Boussan, 1 Abb.
N. C. 481 [Com. PI. 1877].)

Order not granted to enable a party to ascertain testimony of oppo-
nent's witnesses and procure their evidence.] The motion will not be granted
merely to enable a party to find out what his opponent's witnesses will swear
to, or enable a party to procure other evidence to be used upon the trial.
What are insufficient allegations in the affidavit used upon motion. (Leary
V. Rice, 15 App. Div. 397 [1897].)

Testimony to be used upon the trial.] It should appear affirmatively

that it is the intention of tlie moving party to use the testimony on the
trial. (Batterson v. Sanford, 13 J, & S. 127 [1879] ; McCormack v. Codding-
ton, 98 App. Div. 13.)

Rule 82] Geneeal Eules of Peactioe, 455

Express statement that the deposition will be used on the trial is un-
necessary.] It is not necessary that an affidavit used to procure an order to
examine an adverse party before the trial of an action shall expressly state
that the plaintifT intends to use the proposed deposition of the defendants
upon the trial of the action; it is sufficient that the necessary inference to be
derived from the facts alleged and the statements made by the moving party
is that he intends to read the testimony upon the trial. (St. Clair Paper
Mfg. Co. V. Brown, 10 App. Div. 317 [1897].)

What allegations in petition of Attorney-General are insufficient.] In

a proceeding by the Attorney- General, under the act to prevent monopolies
(chap. 383, Laws of 1897), the allegations in the petition for an order to ex-
amine witnesses were held insufficient for not stating sources of his informa-
tion, etc. (Matter of Attorney-General, 22 App. Div. 285 [1897].)

Order for examination served before the summons, bad.] An order for

the examination of a party before trial, made and served before the action
has been commenced by the service of summons, is without jurisdiction and
cannot be enforced even after subsequent service of summons. (Brandon
Manufacturing Co. v. Pettingill, 2 Abb. X. 0. 162 [Sp. T. 1877].)

Before issue.] A party to an action could be examined under rule of

1871 at the instance of the adverse party, under section 391 of the Code of
Procedure, immediately on oommencement of an action, and before issue.
(Glenney v. Stedwell, 64 X. Y. 120 [1876], 1 Abb. N. C. 327, note; McVickar
V. Ketchum, 1 Abb. Pr. [N. S.] 452 [Gen. T. 1865]; S. C, 4 Rob. 657; fol-
lowed in Fullerton v. Gaylord, 7 id. 559 [Sp. T. 1867]; Duffy v. Lynch, 36
How. Prac. 509 [Sp. T. 1869]; Hadley v. Fowler, 12 Abb. Prac. [N. S.] 244
[Sp. T. 1872].)

Bill of discovery.] Could be maintained before issue joined. (2 Barb.

Ch. Prac. 105, 106.)

Before suit brought.] The Code authorizes the granting of an order,

before an action has actually been commenced in a. court of record, for the
examination of a person against whom such an action isi "about to be
brought " upon the application of the person who is about to bring the action.
(Mer. Nat. Bank v. Sheehan, 101 N. Y. 176 [1886].)

It must be a judge's order — ex parte.] The Supreme Court has no

power to make a court order for the examination of the plaintiff in an action
as a witness before 'trial, upon a contested motion, brought on to be heard
pursuant to a formal notice thereof. The proper practice, under section 873
of the Code of Civil Procedure, regulating applications of this character, is to
apply ea; parte to a judge who, if the papers are sufficient, must make the
order. (Wiechers v. New Home Sewing Machine Co., 38 App. Div. 1 [1899].)

Scope of the examination.] The examination is not to enable defend-
ant to ascertain whether he has a defense, but to enable him to obtain testi-
mony in support of a defense which he lias good reason to suppose he
Jias. (Winston v. English, 44 How. Prac. 398.)

Questions tending to criminate.] Examination of the plaintiff before

trial — when it will be ordered — right of the party examined to refuse to

456 Courts of Kecokd. [Kule 82

answer questions tending to incriminate him. (See Sprague v. Butterworth,
22 Hun, 502; Batterson v. Sanford. 13 Jones & S. 127 [1879].)

Party examined is bound to answer all questions whicli relate con-
fessedly to the issues involved. (Mudge v. Gilbert, 43 How. Prac. 219 [Sp. T.
1872].)

Objection that the examination may require witness to incriminate

himself is without force when it appears that any criminal prosecution for a
penalty is barred by the statute of limitations, (ileadie v. Southern Tier
ilasonic Relief Ass'n, 119 App. Div. 761.)

Not allowed simply to show false representations.] An examination

of a party before trial will not be ordered where its only purpose is to show
that he has been guilty of obtaining property by false representations.
(Yamato Trading Co. v. Brown, 27 Hun, 248 [1882].)

Not allowed simply to show a party guilty of a crime.] The examina-
tion of a party before trial cannot be ordered when all the evidence sought
for must tend to show him guilty of a crime or render him infamous. (Kin-
ney V. Roberts, 26 Huns 166 [1882].)

Names.] The application may be granted for the purpose of ascer-
taining the names of persons whom the applicant desires to join by amend-
ment as parties. (Glenney v. Stedwell, 1 Abb. N. C. 327 and note [Ct. of
App. 1876]; S. C, 64 N. Y. 120.)

Complaint — preparation of.] Examination of defendant to enable

plaintiff to prepare his complaint may be had. (Havemeyer v. Ingersoll, 12
Abb. Prac. [N. S.] 301 [Sp. T. 1871].)

When not allowed to enable the plaintiff to frame his complaint.] A

witness cannot be examined under sections 871 to 876 of the Code of Civil
Procedure for the purpose of enabling a plaintiff to frame a complaint in an
action which is not yet commenced. (Matter of Anthony & Co., 42 App.
Div. 66 [1899].)

Not granted to enable a party to learn his opponent's evidence.] An

examination before trial will not be granted merely to enable the moving party
to learn bis opponent's evidence, or to enable the moving party to procure
other evidence to be produced upon the trial. (Leary v. Rice, 15 App. Div.
397 [1897].)

Not allowed to discover a cause of action against persons not parties.]

An examination of a defendant before trial should not be granted to enable
his adversary to ascertain whether he has a cause of action against other
.persons who have not been made parties to the action. (Ziegler v Lamb, 5
App. Div. 47 [1896].)

Not denied, because the party will be present at the trial.] An order

for the examination of a party before trial will not be denied, simply be-
cause the party to be examined states that he will be present at the trial.
(Presbrey v. Public Opinion Co., 6 App. Div. 600 [1896]; Press Publishing
Co. V. Star Co., 33 id. 242 [1898].)

Examination before trial does not preclude an ezamination at the

trial.] The fact that a party has been examined before trial does not pre
elude his examination at the trial. (Berdell v. Berdell, 27 Hun, 23 [1882] ;
Jlisland v. Boynton, 79 N. Y. 630 [1880].)

Eule 82] Geneeal Eules of Peactice. 457

Duty of judge where the papers in form are correct.] Upon the pres-
entation to a judge of an affidavit complying in form witli the requirements
of section 872 of the Code of Civil Procedure, he must grant an order for the
examination of a party before trial, but when the party to be examined comes
into court then the proceedings must be subject to judicial control, and he
can vacate tlie order upon cause shown. (Levy v. Loeb, 5 Abb. N. C. 157
[K Y. Supr. Ct. Gen. T. 1878].)

Practice on a motion to vacate.] A motion to vacate an order for the

examination of a party before trial, made upon the original papers, although
on notice, may be made at the Special Term for the transaction of ex parte
business. (Byrnes v. Ladew, 15 Misc. Rep. 413 [1896].)

■ In action to annul a marriage court may compel defendant to submit

to surgical examination when ground of action is impotency. (Gtore v. Gore,
103 App. Div. 168.)

When granted.] Where all the material facts are in the possession of

defendant. (Tanenbaum v. Lippman, 89 App. Div. 17.)

OBJECTION — Must be by motion before trial.] A party desiring to object
to a deposition on the ground that the witness refused to answer proper
questions must do so by motion, and not wait until the trial and then object
to the reading of the deposition. (Sturm v. Atlantic Mut. Ins. Co., 63 N. Y.
77 [1875]; Vilmar v. Schall, 61 id. 564 [1875]; Elverson v. Vanderpoel, 9
Jones & S. 257 [X. Y. Supr. Ct. 1876]; Richardson & Boynton Co. v. SchifiF,
93 App. Div. 368.)

PARTY — Meaning of.] The term "party to an action" (Code of Civil
Procedure, § 870), includes only parties to the record, not parties in interest.
(Seeley v. Clark, 78 N. Y. 220.)

THIRD PERSON — Examination of, to enable the complaint to be made
more definite and certain.] Employees of a corporation which is not a
party to an action may be compelled, under sections 871 and 872 of the Code
of Civil Procedure, to submit to an examination by the plaintiff when such
employees are alleged to have knowledge of facts which will enable the plain-
tiff to make its complaint more definite and certain by separately stating and
numbering its causes of action, as required by an order granted at the instance
of the defendants. (People v. Armour, 18 App. Div. 584 [1897].)

Where an e.xeoutrix suing a oorporation to recover the value of legal

services rendered by her testator has been ordered to serve a bill of par-
ticulars and has no personal information concerning the value of the services
rendered, she is entitled to an order for an examination by third persons who
at the time of the testator's employment were officers of the defendant cor-
poration. (Chittenden v. San Domingo Improvement Co., 132 App. Div. 169.)

BOOKS AND PAPERS — Production of, on an examination before trial.]
An order for the examination before trial of a corporation may, under sub-
division 7 of section 872 of the Code of Civil Procedure, properly contain a
provision requiring officers to be examined to produce books belonging to the
corporation. (Press Publishing Co. v. Star Co., 33 App. Div. 242 [1898] ;
Horst V. Yuengling Brewing Co., 1 id. 629 [1896].)

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

458 Courts of Eecokd. [Rule 82

adverse party and a discovery and inspection of his books and papers cannot
be liad 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. IngersoU, 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. Bramton, 24 How. Prac. 257
[N. Y. Com. PI. Gen. T. 1862].)

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 com-
mission issued to take the examination of witnesses residing out of the State.
(Butler V. Lee, 32 Barb. 75 [Gen. T. 1860] ; S. C, 19 How. Prac. 383.)

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 exajnine the machine upon which the plaintiff
was injured. (Cooke v. Lalance Grojean Mfg. Co., 29 Hun, 641 [1883].)

PHYSICAL EXAMINATION — Examination of a plaintiff's person, not
ordered.] The Supreme Court has no inherent power, and, in the absence of
a statute conferring the right, may not, in advance of the trial of an action
for personal injuries, compel the plaintiff, on the application of the defend-
ant, to submit to an examination of his person by surgeons appointed by tlie
court, with a view to enable them to testify on the trial as to the existence or
extent of the alleged injury. (McQuigan v. D., L. & W. E. E. Co., 12:) N. Y.
50 [1891].)

Inspection of plaintiff's person, in an action for malpractice — ordered.]

Where, in an action for malpractice against a surgeon to recover damages for
an alleged unskillful operation performed by him on the body of the plain-
tiff, a child of about seven years of age, he, upon petition and affidavit asked
that the plaintiff be required to appear and submit to a personal inspection
of the affected part, by the defendant and such other skillful and competent
surgeons as he might name under the direction of a referee appointed by the
court for that purpose, held, that the court had power on such application to
compel a discovery of the character of the one sought for, and that this was a
proper case in which to exercise it, and accordingly ordered and directed an
examination of the alleged injured part by expert surgeons appointed by the
court for that purpose. (Walsh v. Sayer, 52 How. Prac. 334 [Sp. T. 1868].
See contra, Roberts v. Ogdensburg & L. C. E. E. Co., 29 Hun, 154 [1883].
See on this subject Code of Civil Procedure, § 873.)

Physical examination of female plaintiff.] A female plaintiff is en-
titled as of right to have inserted in an order for her physical examination
before trial a provision that a female physician make the examination, with-
out making any special application for it as a favor or privilege. (Lawrence
V. Samuels, 17 Misc. Ecp. 559 [1S9G].)

Faile 82] General Kules of Practice. 459

A nonresident plaintiff is bound to obey an order for her physical

examination before trial.] A person who, after commencing an action in
the State of New York, to recover damages for personal injuries sustained
by her through the alleged negligence of the defendant, removes from the State,
is bound to obey an order of the Supreme Court of the State of New York,
for her oral and physical examination before trial, when it is brought to her
attention or that of her attorney. (Campbell v. Bauland Co., 41 App. Div.
474 [1899].)

Failure to serve the order or to pay witness fees.] The fact that the

defendant is unable to make service of the order within the State of New York,
as required by the statute pursuant to which the order was made, does not
afford any ground for vacating it, in view of the duty of the plaintff to sub-
mit herself to the jurisdiction of the court; nor does the failure of the de-
fendant to pay the plaintiff the witness fees required by section 874 of the
Code of Civil Procedure, furiiish such ground, as, until the plaintiflf affords
the defendant an opportunity to serve her within the State, the defendant is
under no obligation to pay such fees. (/6.)

Examination to determine the physical condition of an applicant for

the position of policeman.] It seems, that the court has no power to require
a person seeking to compel by mandamus his appointment as a policeman, to
submit to a physical examination for the purpose of determining his physical
ability to perform the duties of his position. (People ex rel. Mosher v. Roosa,
43 App. Div. 611.)

Afddavit to procure order for physical exaiiination.] An affidavit to

procure an order for the physical examination of tne plaintiff in an action for
personal injuries, which states the nature of the action, and that defendant
is ignorant of the nature and extent of the injuries complained of, complies
sufficiently with the requirements of Rule 83. Such affidavit need not state
that defendant intends to read the testimony on the trial. It is sufficient if
the affidavit shows that he proposes to use the testimony so obtained on the
trial. (Green v. Middlesex R. R. Co., 10 Misc. Rep. 473 [1894].)

Depositions of physicians taken thereon.] Where a plaintiff has been

required to submit to a physical examination, under the provisions of section
873 of the Code of Civil Procedure, before a referee and two physicians, the
depositions of the physicians who testified before the referee are not com-
petent evidense upon the trial of the action when the witnesses themselves
can be produced. (Green v. Middlesex Valley R. R. Co., 31 App. Div. 412
[1898]. See Gore v. Gore, 103 App. Div. 168.)

Physical examination, effect of persistent refusal to submit to.]

Plaintiff who persists in refusing to undergo physical examination ordered
by court, not permitted to prosecute action. (Smith v. N. J., etc., R. Co.,
123 App. Div. 493.)

Personal service of order necessary.] Power of court to compel plain-
tiff to submit to physical examination is statutory and hence to be strictly
construed and for that reason personal service of the order must be made.
(Miller v. Nevins, 115 App. Div. 139.)

Bad faith alone is sufficient to defeat right.] Bad faith alone is

siiiHcient to defent the right of examination before trial, provided all

460 CouETS OF Eecoed. [Rule 83

the requirementa of the Code of Civil Procedure and of the Rules of Practice
have been complied with. (Tirpak v. Hoe, 53 Misc. Rep. 532. See, also,
Pitt V. Diinlap, 54 Misc. Rep. 115; Geis v. Gels, 116 App. Div. 362; Wood v.
Hoffman, 56 Misc. Rep. 66; Orlando v. Syracuse Rap. Transit R. Co., 109
App. Div. 350; Goldberg v. Zirinsky, 100 N. Y. Supp. 251; Potter v. Village
of Hammondsport, 112 App. Div. 91.)

When physical examination refused.] A defendant sued by a woman

to recover damages caused by indignities and assault will not be allowed a
physical examination of plaintiff before trial as an adverse witness under
section 873 of the Code of Civil Procedure, where the purpose is not to obtain
evidence of physical injuries but to inquire into the previous history and
condition of the woman. (Smyth v. Lichtenstein, No. 2, 137 App. Div. 335.)

APPEAL — To the Appellate Division.] An order granting an application
for the examination of a party before trial is reviewable by the Appellate
Division. (Fiske v. Smith, 9 App. Div. 208 [1896].)

PENALTY — Striking out pleading.] If a party refuses to answer a
material and proper question, his pleading may be stricken out. (Richard
V. Judd, 15 Abb. Prac. [N. S.] 184 [Gen. T. 1874].)

Contempt.] For failure to answer, a party may be punished as for

contempt. (Kiernan v. Abbott, 1 Hun, 100 [Gen. T. 1874].)

CODE OF PROCEDURE, § 388 and § 391— Relate to different subjects.]
Sections 388 and 391 of the Code of Procedure relate to entirely different
subjects, and cannot be united for the purpose of aiding proceedings under
either. (Havemeyer v. Ingersoll, 12 Abb. Prac. [N. S.] 301 [Sp. T. 1871].
See Code of Civil Procedure, §§ 803, 870.)

The Supreme Court is the successor of the former Court of Chancery.]

(Milton V. Richardson, 21 Misc. Rep. 380 [1897].)

NOTICE — To attorney.] When a party to an action who is required to
attend before a judge to be examined under section 391 of the Code of Pro-
cedure has appeared by attorney, notice of such examination must be served
on the attorney as well as the party. (Plummer v. Belden, 8 Hun, 455 [Gen.
T. 1876].)

ETJLE 83.

Courts May Make Further Rules.

The Appellate Division in each department, and the various
courts of record, may make such further rules in regard to the
transaction of business before them respectively, not inconsistent
with the foregoing rules as they in their discretion may deem
necessary.

Rule 96 of 1871. Rule 96 of 1874. Rule 90 of 1877. Rule 84 of 1880.
Rule 84 of 1884. Rule S4 of 1888, amended. Rule 83 of 1896.

Appellate Division may make a rule requiring the notice of sale of real
estate on execution to include a diagram of the property. (Francis v.
Watkins, 72 App. Div. 15; 76 N. Y. [110 St. Rep.] 106.)

Rule 84] Geneeal Eules of Peactice. 461

EULE 84.

Practice in Cases not Covered by these Rules.

In cases where no provision is made by statute or by these rules
the proceedings shall be according to the customary practice as
it formerly existed in the Cgurt of Chancery or Supreme Court,
in cases not provided for by statute or by the written rules of
those courts.

Rule 93 of 1858. Rule 97 of 1871. Rule 97 of 1874. Rule 91 of 1877.
Rule 85 of 1880. Rule 85 of 1884. Rule 85 of 1888. Rule 84 of 1896.

APPENDIX.

ANNUITY TABLE*

Table Showing the Value of an Annuity of One Dollar on a
Single Life, According to the Northampton Table of Mortality,
at Five per cent Interest, Referred to in General Rule No. 70.

Age.

Number of
years' pur-
chase the
annuity is
worth.

Age.

Number of
years' pur-
chase the
annuity is
worth.

Age.

Number of
years' pur-
chase the
annuity is
worth.

11.563
13.420
14.135
14.613
14.827
15.041
15.166
15.226
15.210
15.139
15.043
14.937
14.826
14.710
14.588
14.460
14.334
14.217
14.108
14.007
13.917
13.833
13.746
13,658
13.567
13.473
13.377
13,278
13.177
13.072
12.965
12.854

12.740

12.623

12.502

12.377

12.249

12.116

11.979

11.837

11.695

11.551

11.407

11 .258

11.105

10 .947

10.784

10.616

10.443

10.269

10.097

9,925

9,748

9.567

9.382

9.193

8,999

8,801

8,599

8.392

8.181

7.966

7.742

7.514

7.276

2 ....

7.034

6.787

6.536

5 .

6.281

6.023

5.764

5.504

5.245

4.990

4.744

12 .

4.511

4.277

4.035

3.776

3.515

3.263

3.020

2.797

2.627

2.471

2.328

23 . .

2.193

2.080

1.924

1.723

1.447

1.153

.816

30 .

.524

.238

* Taken from "Jones on Annuities," vol. 1, p.
[463]

244.

464 Annuity Tables.

RULES FOR COMPUTING THE VALUE OF THE UFE ESTATE

OR ANNUITY.

Calculate the interest at 5 per cent, for one year, upon the sura
to the income of which the person is entitled. Multiply this inter-
est by the number of years' purchase set opposite the person's age
in the table, and the product is the gross value of the life estate of
each person in said sum.

EXAMPLES.

'Suppose a widow's age is thirty-seven, and she is entitled to
dower in real estate worth $350.75. One-third of this is $116.91f .
Interest on $116.91 for one year at 5 per cent, (as fixed by the
70th rule) is $5.85. The number of years' purchase which an
annuity of one dollar is worth, at the age of thirty-seven, as ap-
pears by the table, is twelve years and ^w^^ parts of a year, which
multiplied by $5.85, the income for one year, gives $71.65 and
a fraction as the gross value of her right of dower.

Suppose a man, whose age is fifty, is tenant by the curtesy in
the whole of an estate worth $9,000. The annual interest on the
sum, at 5 per cent, is $450. The number of years' purchase
which an annuity of one dollar is worth, at the age of fifty, as
per table, is 10.^^-^ parts of a year, which multiplied by $450,
the value of one year, gives $4,621.05, as the gross value of his
life estate in the premises, or the proceeds thereof.

Note. — The values in this table are calculated on the supposition that the
annuities are payaWe yearly.
See note to Rule 70, ante.

Appendix.

465

Carlisle Table of Moetality.

Table Showing the Value of an Annuity of One Dollar on a
Single Life, According to the Carlisle Table of Mortality, at
Five per cent. Interest, Referred to in General Rule No. 70.

Age.

Number of
years' pur-
chase the
annuity is
worth.

Age.

Number of
years' pur-
chase the
annuity is
worth.

12.083
13.995
14.983
15.824
16.271
16.590
16.735
16.790
16.786
16.742
16.669
16.581
16.495
16.406
16.316
16.227
16.145
16.067
15.988
15.905
15.818
15.727
15.629
15.526
15.417
15.304
15.188
15.065
14.942
14.827
14.723
14.617
14.506
14.387
14.260

14.127

13.987

13.843

13.694

13.541

13.389

13.244

13.101

12.956

12.805

12.648

12.480

12.301

12.107

11.892

11.660

11 .409

11.154

10.892

10.624

10.347

10 :063

9.771

9.478

9.199

8.940

8.712

8.487

8.258

8.016

7.765

7.503

7.227

6.941

6.643

36... .

9..

24 .

59 . .

26..

28..

32 ... .

67 >.

Number of

Age.

years' pur-
chase the
annuity is
worth.

6.336

71. .

6.015

6.711

5.434

5.190

4.989

4.792

4.609

4.422

4.210

4.014

3.799

3.606

3.406

3.211

3.009

2.830

2.685

2.597

2.495

2.339

2.321

2.412

2.517

94 ....

2.569

2.596

2.555

97 . . . ■ .

2,428

2.278

2.045

100

1.624

101. . . .

1.192

102

0.753

103

0.317

Rules foe Computing the Value of the Life Estate oe

Annuity.

Calralate the interest at 5 per cent, for one year upon the sum
to the income of which the person is entitled. Multiply this
30

466 Annuity Tables.

interest by the number of years' purchase set opposite the person's
age in the table, and the product is the gross yalue of the life
estate of such person in said sum.

EXAMPLES.

Suppose a widow's age is thirty-seven, and she is entitled to
dower in real estate worth $350.Y'5. One-third of this is $116.91f .
Interest on $116.91 for one year at 5 per cent, (as fixed by the
70th Rule) is $5.85. The number of years' purchase which an
annuity of one dollar is worth at the age of thirty-seven, as ap-
pears by the table, is thirteen years and ^VA parts of a year,
which multiplied by $5.85, the income for one year, gives $80.98
and a fraction as the gross value of her right of dower.

Suppose a man whose age is fifty is tenant by the curtesy in
the whole of an estate worth $9,00'0. The annual interest on the
sum at 5 per cent, is $450. The number of years' purchase
which an annuity of one dollar is worth at the age of fifty, as per
table, is 11.660 parts of a year, which, multiplied by $450, the
value of one year, gives $5,247 as the gross value of his life estate
in the premises, or the proceeds thereof.

Note. — The values in this table are calciilated on the supposi-
tion that the annuities are payable yearly, first payment due one
year hence. These values, with those for joint and survivorship
life interest, may be foimd in " Commutation Tables for Joint
Annuities and Survivorship Assurances Based on the Carlisle
Mortality, by David Chisholm." London, Charles & Edwin
Layton, 1858,

SUPREME COURT.

RULES MADE BY THE APPELLATE DIVISIONS OF
THE SEVERAL DEPARTMENTS.

Special Rules Regulating Practice in the First Judicial

Department.

RULES FOR THE HEARING OF APPEALS FROM THE CITY COURT OF
THE CITY OF NEW YORK, AND FROM THE MUNICIPAL COURT IN
THE BOROUGHS OF MANHATTAN AND THE BRONX.

EXILE I.

Term.

There shall be a term of the Supreme Court for the hearing
of appeals from the City Court and the Municipal Court of the
City of New York in the boroughs of Manhattan and the Bronx
which shall commence on the first Monday of October, ISTovember,
December, January, February, March, April, May and June in
each year and shall continue from day to day during each of said
months until all appeals ready for hearing are heard and dis-
posed of. This term of the court shall hold its sessions in the
Court House in the county of New York, and shall be held by
three justices of the Supreme Court, duly designated to hold said
term, and shall be known as the Appellate Term.

RULE II.

Calendar and filing return.

The clerk of such term of the Supreme Court shall make up a
calendar of all appeals to be heard each term, and publish the
same in the " Law Journal " at least eight days before the com-

[467]

468 Appellate Teem — Fiest Depaetment. [Eule 3

mencement of the term. No appeal shall be placed on such cal-
endar unless the return from the court below is duly filed with
the clerk of such term at least ten days before the commence-
ment of the term ; nor, in the case of appeals from the City Court,
unless an affidavit is filed with such clerk at least ten days before
the commencement of the term, by which it appears that three
copies of such return, duly printed as required by the General
Rules of Practice, have been served upon the attorney for the
respondent. Upon such return being filed as aforesaid, and in
the case of appeals from the City Court upon an affidavit as afore-
said being also filed, the clerk shall place the appeal upon the
calendar in the order in which the return was filed.

Upon an appeal from the City Court the judgment or order of
the court shall be entered in the office of the Clerk of the Supreme
Court; a certified copy of such judgment or order shall be an-
nexed to the return from the City Court, which certified copy and
return shall be transmitted to the City Court, as required by sec-
tion 1345 of the Code of Civil Procedure. Upon an appeal from
the Municipal Court the judgment or order of the Appellate
Term shall be entered in the office of the Clerk of the Supreme
Court, and a certified copy thereof annexed to the return received
from the Municipal Court, which return and certified copy of the
judgment or order shall be returned to the District of the Munici-
pal Court from which the appeal was taken, as provided by section
327 of chapter 580 of the Laws of 190i2, which shall remain on
file in the said Municipal Court.

RULE in.

Failure to file return and motion for dismissal therefor.
In appeals from the City Court, in case the appellant does not
cause the return to be filed with the clerk of the Appellate Term
and print and serve three copies thereof upon the attorney for
the respondent, as required by the General Eailes of Practice,
within twenty days after the settlement of the case upon appeal,
and in case of an appeal from an order of the City Court within
fifteen days after service of the notice of appeal upon the at-
torney for respondent, the respondent may move, upon five days'
notice, on the first day of the term of such court, to dismiss the
appeal, and the appeal shall be dismissed unless the time of the

Eule 5] Special Eoles of Pkactice. 4G9

appellant to cause such return to be filed and copies thereof to be
printed and served be extended by the justices assigned to hear
such appeals, or one of them, for good cause shown.

In appeals from the Municipal Court of the City of New
York, if the appellant does not procure the return to be made to
the appellate court within the time prescribed by section 317 of
chapter 580 of the Laws of 1902, the respondent may move upon
five days' notice, on the first day of the term, to dismiss the appeal,
and such appeal shall be dismissed unless the justices assigned
to hear such appeals, or one of them, for good cause shown, shall
extend the time.

RULE IV.
Attachment — motion for.

If the justice of the Municipal Court whose duty it is to cause
a return to be filed with the Appellate Term shall not make such
return within the time prescribed by section 317, chapter 580, of
the Laws of 1902, either party may move the Appellate Term,
upon notice to the attorney for the adverse party and to such
justice to compel such return by attachment.

RULE V.

Briefs — form and filing — submission of appeal — argument.

The cases and points and all other papers furnished to the
Appellate Term on an appeal from the City Court shall be printed
as provided for in Eule 43 of the General Eules of Practice. The
points on an appeal from the Municipal Court shall be printed as
therein provided or typewritten. In every case on appeal from
the City Court or the Municipal Court the appellant must, on or
before the Monday preceding the first day of the term at which
the appeal is noticed for argument, file with the clerk of the Ap-
pellate Term the requisite number of copies of his points to be
used upon the hearing, indicating thereon the number of the ap-
peal on the calendar published in the " Law Journal," and shall
also, on or before the Monday preceding the first day of said term,
serve a copy of said points upon the attorney for the respondent.
Upon failure so to do the appeal may, when called for argument
in its regular order on the calendar, be dismissed or the hearing
thereof adjourned to the next term, as the court may determine.
Not later than twelve o'clock noon on the Saturday preceding the

470 Appellate Teem — First Depaetment. [Eule 7

first day of the term the respondent must serve a copy of his
points upon the attorney for the appellant or iipon the appellant's
counsel, and file with the clerk the requisite number of copies
thereof to be used upon the argument, said copies also to contain
the number of the case upon the calendar as published in the
" Law Journal." No further time for filing points will be
granted and no other points will be received or considered unless
the court shall by its own raotion direct further points to be
submitted.

Wo appeal will be heard or received on submission unless it has
been noticed for argument and proof of service thereof filed with
the clerk of the Appellate Term on or before the Monday pre-
ceding the first day of the term. All appeals must be heard or
submitted when regularly called for argument, unless the court,
for cause shown, shall adjourn the hearing until a subsequent
term ; and no appeals shall be svibmitted without argument unless
the points have been filed and served as hereinbefore provided.
In the argument of an appeal from an order or from a judgment of
the Municipal Court not more than fifteen minutes shall be occu-
pied by counsel on either side ; and in the argument of an appeal
from a judgment of the City Court not more than thirty minutes
shall be occupied by counsel on either side, except by express per-
mission of the court.

RULE VI.
Default in appearance — result and effect.

If the appellant does not appear upon the call of the calendar,
the judgment or order appealed from shall be affirmed. If the
appellant appears and the respondent fails to appear, the appellant
may either argue, or submit his case, but judgment of reversal by
default will not be allowed.

EULE VII.
Application for leave to appeal — reargument — motion for.

Motions for reargument and applications for leave to appeal
from a determination of the Appellate Term to the Appellate
Division under section 1344 of the Code of Civil Procedure must
be made upon written notice to the adverse party on the first day
of the term next succeeding the term at which the case was decided.
Such motions and applications must be based upon an affidavit or

Eule 8] Special Eules or Peactice. 471

a statement setting forth concisely the points claimed to have been
overlooked or misapprehended by the court, vs^ith proper reference
to the authorities relied upon, and the reason why such reargument
should be granted or appeal allowed, together with a copy of the
opinion, if any. The briefs may be either printed or type-
written. All motions and applications must be submitted with-
out oral argument.

An appeal to the Appellate Division from an order granting a
new trial will not be allowed unless the appellant files with his
notice of application for leave to appeal a stipulation that if the
order appealed from be affirmed, or the appeal therefrom be dis-
missed, judgment absolute may be rendered against him.

A party desiring an order staying proceedings pending a mo-
tion for reargument or an application for leave to appeal must
serve the notice provided for in this rule. Upon an affidavit
showing the service of such notice, a copy of the moving papers
and a statement in such affidavit setting forth the reasons why a
stay should be granted, an application for a stay will be enter-
tained. Application for such an order must be made to the jus-
tices of the Appellate Term who heard the appeal, or one of them,
by presenting the same to the clerk of the Appellate Term, by
whom it will be brought to the atttention of the court.

EULE vni.

Motions generally — practice — calendar.

Pive days' notice of motion shall be given of all motions made
in the Appellate Term, except motions for restitution, under sec-
tion 323 of the Municipal Court Act. In all motions noticed for
the first day of the term a notice of such motion, whether founded
upon an order to show cause or a regular notice of motion, with
proof of service thereof, together with a note of issue, must be
filed with the clerk of the Appellate Term on the Friday preced-
ing the commencement of the term. The motion calendar will be
published on the Saturday preceding the commencement of the
term, but no motion will be placed thereon except upon compli-
ance with this rule. The motion calendar will not be called and
no oral argument will be allowed. The briefs of counsel and the
answering affidavits, if any, must be filed with the clerk at or
before twelve o'clock noon of the first day of the term.

472 Appellate Teem — Fiest Depaetment. [Rule 1

All motions, other than those made under Rules three and seven,
whether upon an order to show cause or by regular notice of
motion, may he made returnable upon any day of the term.

Except when the Appellate Term shall otherwise direct, all
decisions, either in cases upon appeal or on motion, will, when
announced, be accompanied by an order duly signed. A motion
for resettlement of such order must be made upon two days' notice.

CALENDAR RULES ADOPTED BY THE APPELLATE TERM.
RULE I.

The calendar of appeals from orders and judgments of the
City Court will be called in the forenoon of the first day of the
term at 10 o'clock a. m. The calendar of appeals from orders and
judgments of the Municipal Court will be called on the second
day of the term at 10' o'clock a. m.

RUIE n.

In motions for leave to appeal or for reargument an indorse-
ment must be made upon the motion papers stating the term of the
court at which the case was argued or submitted. If' an appeal
upon the calendar is affected by a motion, the motion papers and
the note of issue must be indorsed with the calendar number pf
such appeal.

RUIE in.

Briefs of counsel, when reference therein is made to the testi-
mony given upon the trial, must give the number of the folio in
the printed case if an appeal from the City Court, and the number
of the page in the record if an appeal from the IMunicipal Court.
If the appellant's brief fails to comply with this rule the appeal
may be dismissed. If the respondent's brief is deficient in this
respect the appeal may be considered on the appellant's brief alone.

RULES FOR THE REGULATION OF THE TRIAL TERMS OF THE SU-
PREME COURT IN THE FIRST JUDICIAL DISTRICT AND TO REGU-
LATE THE CALENDAR PRACTICE THEREIN.

RULE I.

The general calendar of issues of fact to be tried by a jury in
the County of Xew York shall consist of three separate calendars,
known respectively as Calendar No. 1, Calendar Xo. 2 and Cal-

Rule 2] Special Eules of Peactioe. 473

endar No. 3, which shall he made up from time to time as ordered
by the Appellate Division of the Supreme Court in the First
Department, and these calendars shall remain for the successive
Trial Terms of the court until new calendars are made up. New
causes that have been regularly noticed for trial and a note of
issue filed as prescribed by the Code of Civil Procedure shall be
put at the foot of the proper calendar. Parties filing a consent
may have a cause on either of the calendars reserved generally.
A cause which has appealed on the calendar of the Circuit Court,
the Superior Court of the city of New York, or the Court of Com-
mon Pleas for the city and county of New York, or on a calendar
of the Trial Term of the Supreme Court, where the parties shall
have omitted to file a note of issue so as to have the same placed
on a new calendar, may be placed on the proper calendar at the
foot thereof by the justice calling the Friday calendar on applica-
tion of either party, on two days' notice to the adverse party.
Causes placed on the several calendars hereinbefore provided for
shall be classified as follows: Upon Calendar No. 1 there shall
be placed actions to recover for personal injuries or for death
against railroad companies. Upon Calendar No. 2 there shall be
placed actions for libel, slander, false imprisonment, malicious
prosecution and all other actions sounding in tort, except actions
for personal injuries against railroad companies and actions to
recover damages for conversion of personal property. Upon
Calendar No. 3 there shall be placed actions for damages for the
conversion of personal property, actions on contract and to re-
cover damages for a breach of a contract, and all other actions not
hereinbefore directed to be placed upon Calendars Nos. 1 and 2.
A note of issue must specify the particular nature of the action
and the calendar upon which the same shall be placed, as required
by section 977 of the Code of Civil Procedure ; and the clerk shall
not receive a note of issue unless it complies with this provision.
Am'd May 23, 1904.

EULE n.

Any cause " reserved generally," where the same has been
reached in its regular order, or in which a new trial shall have
been ordered, may be placed on the calendar for any Friday on
filing a consent with the clerk; or either party may apply to the
justice calling the Friday calendar upon any Friday upon two

474 Teial Teem — First Depaetment. [Rule 4

days' notice, for an order placing such cause upon the Friday cal-
endar to be called for trial. All motions or applications for orders
in respect to the calendar, except as provided by Eules 3, 5, 6
and 7 must be made to the justice calling the Friday calendar.

UTILE in.

A party entitled to have a cause preferred under sections 791
and 793 of the Code of Civil Procedure, may apply upon notice,
to the court at Part 2 of the Trial Term to have such preference
awarded. If such application for a preference is granted, the
court shall direct such cause to be placed upon the appropriate
day calendar for a day certain for trial, and called after the causes
then upon the said day calendar marked ready. If the party who
has moved for such a preference shall not be ready to proceed with
the trial when the cause is called for trial, the said cause shall
thereupon be stricken from the day calendar, retaining its position
on the general calendar which it would have had if no preference
had been ordered.
Am"d May 23, 1904.

RULE IV.

There shall be twenty Trial Terms of the Supreme Court, to be
known respectively as Trial Term, Part I, Part II, Part III,
Part IV, Part V, Part VI, Part VII, Part VIII, Part IX,
Part X, Part XI, Part XII, Part XIH, Part XIV, Part XV,
Part XVI, Part XVII, Part XVIII, Part XIX and Part XX.
Each of said parts shall commence on the first Monday of Janu-
ary, February, March, April, May, June, October, ISTovember and
December in each year, and shall continue to and until the fourth
Friday of the term, and until the end of any trial actually com-
menced on or before the fourth Friday of the term, or the final
disposition of any application or motion in an action tried at such
term, and until the terms shall be adjourned without day by the
justice assiged to hold the same.

Parts III, VIII and XIV of such Trial Terms shall open at
10:15 and the other parts at 10:30 a. m. on each day dur-
ing the term, except Saturdays, Sundays, and legal holidays.
Part I of the Trial Term shall be the Criminal Term of the
Supreme Court for the trial of indictments, and shall be held in
the Criminal Court B'uilding or in the County Court House, in

Rule 5] Special Eules of Peactice. 475

the county of New York. Part II of the Trial Term shall be
the Trial Term for the disposition of the special calendar. Parts
III and IV of the Trial Term shall try and dispose of cases
from General Calendar JSTo. 1. Parts V, VI, VII, VIII, IX,
X and XI of the Trial Term shall try and dispose of causes from
General Calendar No. 2. Parts xil, XIII, XIV, XV, XVI,
XVII and XVIII of the Trial Term shall try and dispose of
causes from General Calendar No. 3. Parts XIX and XX of the
Trial Term shall try and dispose of causes from General Calen-
dars Nos. 1, 2 and 3, as shall from time to time be ordered by the
Appellate Division, and whenever there shall not be cases on the
day calendar of either Nos. 1, 2 or 3 to occupy all the parts desig-
nated to try and dispose of causes from such calendar, the part
or parts not so occupied shall try and dispose of cases from the
other day calendars.

RULE V.

Subdivision 1. There shall be a special calendar on which shall
be placed for trial all questions of fact ordered or directed to be
tried by a jury, all issues and questions of fact in special proceedr
ings and all issues and questions of fact which have been stated
for trial in ptirsuance of section 970 and section 971 of the Code
of Civil Procedure. Such calendar shall be called and the causes
thereon tried and disposed of at Part II of the Trial Term.

Subd. 2. In any action wherein the plaintiff seeks to recover a
debt or liquidated demand upon a bond or other obligation for the
payment of a specific sum of money; a bond or undertaking on
appeal; a negotiable instrument; an account stated; for wages,
salary or compensation for services; upon a policy of insurance;
for rent or hire of real or personal property ; for mctaey had and
received ; for money loaned ; for goods sold and delivered ; on a
statute where the sum sought to be recovered is a sum of money
other than a penalty; or on a guaranty, the plaintiff may, at the
first term at which the cause shall have been placed upon the
general calendar, upon five days' notice to the defendant, and upon
competent proof by affidavit of the facts upon which the cause of
action is based, apply to the justice holding Part II of the Trial
Term for an order placing said cause upon the special calendar
for trial. Copies of the affidavit and exhibits, if any, upon which
the application is based, must be served with the notice of the

476 Tkial Teem — Fiest Depaetment. [Rule 5

application. If, upon the afBdavits so submitted and the affidavit
of the opposing party, the court shall be satisfied that there is no
substantial defense to the action, or that the answer was not inter-
posed in good faith, or was interposed for the purpose of delay,
the court may place the cause upon the special calendar for Trial
Term, Part II. The court may, in its discretion, deny the appli-
cation, with or without costs, or upon terms as to stipulating in
relation to the admission of facts not actually controverted, con-
senting to the examination before trial of a party or witnesses,
or the production of books, papers or documents, or the giving of
security to secure the plaintiff in the event of final judgment being
in his favor. The papers upon which such application shall be
made and the answering affidavits, if any, must be filed with the
clerk of Trial Term, Part II, on or before 1'2 o'clock noon of
the day for which the application is noticed, and no oral argument
will be heard upon such application.

. Subd. 3. In an action on contract, express or implied (other
than a contract to marry), either party may apply to Part II,
Trial Term, on two days' notice to the adverse party, for an order
placing the cause upon the special calendar. Upon such applica-
tion, if it satisfactorily appears by affidavit and the pleadings
that the trial of the action will not occupy more than two hours,
and that no good reason exists why the action should not be
promptly tried, the justice to whom the application is made may,
by order, direct the cause to be placed on the special calendar to
be called in Trial Term, Part II, and dispose of the same in its
regular order thereon. The papers upon which the application
is made and the answering affidavits, if any, must be filed with
the clerk of Trial Term, Part II, at or before 12 o'clock noon of
the day for which the application is noticed, and no oral argument
will be heard upon such application.

Subd. 4. All causes and all questions and issues of fact to be
placed on the special calendar shall be so placed in the order of
filing with the clerk of Part II, Trial Term, of the order directing
the cause to be so placed, or of the order or direction for the trial
by jury, or of the order stating the issues or questions of fact
to be tried by jury, and shall be called and tried in the order in
which the same are placed on such special calendar, unless post-
poned for good cause shown by affidavit. If the trial of any

Eule 6] Special Rules of Peactice. 477

cause is placed upon the special calendar upon the ground that
the trial thereof will not occupy more than two hours shall actu-
ally occupy more than that time the court may, in its discretion,
send the cause to the foot of General Calendar No. 3. If at any
time there shall be more causes upon the special calendar than
can be promptly tried and disposed of at Trial Term, Part II,
the justice holding said part may send said causes, or any of
them, to Trial Term, Part XIV, where they shall be placed upon
the day calendar and tried and disposed of in like manner as the
other causes on said day calendar.

RULE VI.

The clerk shall make up a separate day calendar for each day
of the term of the causes from Calendars jSTos. 1, 2 and 3 set down
for trial on such day. The day calendar of causes from General
Calendar No. 1 shall be called at Trial Term, Part III, at 10:15
o'clock. The day calendar of causes from General Calendar No. 2
shall be called at Trial Term, Part VIII, at 10:15 o'clock. The
day calendar of causes from General Calendar No. 3 shall be
called at Trial Term, Part XIV, at 10:15 o'clock. The causes
on each of the day calendars shall remain thereon from day to
day until they are tried or otherwise disposed of. Causes on the
day calendar from Calendar No. 1 shall be sent for trial to Parts
III and IV. Causes on the day calendar from Calendar No. 2
shall be sent for trial to Parts V, VI, VII, VIII, IX, X and XI.
Causes on the dav calendar from Calendar No. 3 shall be sent
for trial to Parts XII, XIII, XIV, XV, XVI, XVII and XVIII.
Such causes shall be tried in the parts in which they are called
or to which they shall be sent for trial in the order in which they
appear on the day calendars. No application to postpone the trial
of a cause shall in any case be entertained after such cause has
been sent to a part for trial. A cause which has once been sent to a
part for trial shall not be again placed on the day calendar, except
by order of the justice holding the part from which it was sent, for
good cause shown to him by affidavit, but such cause shall remain
in the part to which it has been sent for trial until finally disposed
of. When the causes upon the day calendar called in either Part
III, Part VIII or Part XIV shall have been disposed of, causes
upon the day calendar of either of the other parts may be sent to

478 Trial Teem — Fiest Depaetment. [Rule 7

any part not actually engaged in the trial of a cause. When a
cause has been tried and the jury has disagreed, or for any reason
there has been a mistrial, or a juror has been withdrawn, the cause
may be restored to the Friday call calendar or to the day calendar
in the part from which it was sent for trial, or may be set down
for trial upon another day of the same week at which it was tried
by the justice holding the part from which it was sent for trial.
In case Part II, Trial Term, shall not have business enough to
occupy it during court hours causes from either Parts III, VIII
or XIV shall be sent to it for trial.

RULE VII.

The special deputy clerk assigned to Part 2 of the Trial Term
shall have charge of the general and preferred calendars herein
provided for. All orders relating to the calendar and all notes
of issue of causes to be placed upon the calendars shall be filed
with the said clerk of Part 2 of the Trial Term. The clerk shall
each week make up three calendars of causes from the general
calendars for trial at Trial Term, which calendars shall be pub-
lished at least two days before the same are called. These calen-
dars shall be called by the justice of the court holding Trial Term,
Part 3, as provided in Rule VI, on Friday of each week, at
2 o'clock p. M., unless another day is specially fixed by him, to
call such calendars. Causes on such calendars may be set down
for trial on any day in the week following. In case it should
appear upon the call of either of the calendars on Friday that the
number of cases set down for trial on the following week will not
be sufiicient to occupy the available time of all the Trial Term?
of the court, to ^hich the cases are to be assigned, the justice
holding Supreme Court, Trial Term, Part 3, shall order a calen-
dar of cases from the proper general calendar, to be made up and
called on Wednesday morning at 10 o'clock. Upon the call of
such calendar, cases may be set down for any day of the week in
which the calendar is so called, or for the succeeding week.

When a case has appeared and been called for the second time
on either of the call calendars, on the subsequent call it must,
when reached, be assigned to the day calendar for trial or go to
the foot of the proper general calendar, unless it should be made
to appear by affidavit to the satisfaction of the court that the

Eule 9] Special Rules of Peagtice. 479

cause should be further adjourned, in which case it shall be ad-
journed to such time as the court shall fix, and when the case is
again called the same must be assigned to the day calendar for
trial, or go to the foot of the general calendar.

When a case has been thus set down on a call of either of the
calendars on any Friday or Wednesday for trial, and appears
upon the day calendar, it must be tried or go to the foot of the
general calendar, unless it appears by affidavit to the satisfaction
of the justice calling the day calendar that, in consequence of the
happening of an event since the cause was set down for trial, the
trial cannot, with justice to one of the parties, proceed. The
court may then by order set the case down for trial on another day
in the same or following week of the term, or place the cause on a
Friday call calendar. In a cause upon a day calendar for trial,
where it shall appear to the court by affidavit that counsel who
is to try the same is to argue a cause upon a day calendar of the
Supreme Court of the United States, or upon the day calendar
of the Court of Appeals of the State of New York, or upon the
day calendar of any Appellate Division of the Supreme Court,
or is actually engaged in the trial of a cause in a court of record
in the counties of New York or Kings, the cause shall be passed
for the day, or until such argument or trial is concluded, unless
the trial in which the counsel is engaged, is a protracted one. In
no other event shall a cause upon the day calendar be passed for
the day.

RULE VIII.

In no event shall a cause on the day calendar be passed from
day to day, on account of the engagement of counsel, for more
than three days.

Not more than two causes shall be held ready on the day calen-
dar for one counsel in addition to the cause in which he is engaged,
and in all causes the counsel who is to try the same must be desig-
nated, if required by the court, on the call of the day calendar.

RULE IX.

An order directing a delinquent juror to show cause why the
payment of a fine should not be enforced must be granted by, and
made returnable before, the justice by whom said fine was imposed.
Such order must be made returnable at the Trial Term to which

480 Special Teem — Fiest Depaetment. [Rule 2

said justice is assigned upon such day of tlie term and at such
time of the day as the justice shall designate. Such proceedings
shall be conducted before, and heard and decided by said justice
at said time and place.

Where a justice by whom a fine was imposed has ceased to be a
member of the court, or has been designated as a member of the
Appellate Division, or has been assigned to hold Special Term,
or is absent or unable for any reason to hear such proceedings the
order directing the delinquent juror to show cause why the pay-
ment of the fine should not be enforced must be granted by and
made returnable before the justice assigned to hold Trial Term,
Part 8, upon such day of the term and at such time of the day
as he shall designate. Said proceedings shall be taken before and
heard and decided by said justice at said time and place.

RULES FOR THE REGULATION OF THE SPECIAL TERMS OF THE
SUPREME COURT IN THE FIRST JUDICIAL DISTRICT AND ESTAB-
LISHING THE CALENDAR PRACTICE THEREIN.

RULE I.

There shall be a Special Term of the Supreme Court for the
hearing of litigated motions to commence on the first Monday of
each month and to continue until the Friday preceding the first
Monday of the succeeding month, which term shall be held every
day except Saturdays, Sundays and legal holidays. The court
shall open at half-past ten in the morning and shall continue until
all business before the court has been disposed of. This Special
Term shall be known as Special Term, Part 1.

EUIE n.

Motions may be noticed for any day during the term. The
clerk of Special term, Part 1, shall make up a calendar for each
day. ISTotes of issue must be filed with the clerk two days before
the day on which a motion is noticed to be heard, except where
an order to show cause is granted, returnable in less than two days,
when the clerk shall place the motion upon the calendar at any
time before the day for hearing, upon the exhibition to him of

Hule 3] Special Rules of Peactice. 481

-the order to show cause and the filing of a note of issue, or the
justice assigned to said part of the court may place the motion
on the calendar on the day upon which the order to show cause
is returnable. This calendar will be called at the opening of the
court and no motion will be heard that is not upon the calendar.
On the hearing of a motion upon such calendar, but one counsel
on each side will be heard, and not more than fifteen minutes
will be allowed to each counsel, unless the court shall otherwise
order. Application for final judgment, where an interlocutory
judgment has been entered and an account has been taken, or other
proceeding had before a referee or for a final judgment in an
action for divorce under section 1774 of the Code of Civil Pro-
cedure, motions for a new trial on the ground of surprise or
newly discovered evidence, motions to confirm a referee's report
and for final judgment in any action or proceeding in which an
issue of fact has been tried by a jury or by a referee, where
application to the court for final judgment or final order is neces-
sary, applications for the appointment of commissioners or for a
final order or judgment in a proceeding to condemn real estate
for public use, may be noticed for, and made at. Part 1 of the
'Special Term, for the hearing of litigated motions, upon any day
of the July, August and September terms when Part 3 of the
Special Term is not in session. The justice assigned to Part 1
of the Special Term, if he does not deem it important that such
application should be heard during the time when Part 3 is not
in session, may adjourn the time to the next term of Special Term,
Part 3.

RULE III.

In all actions or proceedings in which the accounts of an
assignee for the benefit of creditors or of a receiver appointed in
an action or in a proceeding for the dissolution of a corporation
are presented for settlement or to be passed upon by the court, a
notice or a copy of an advertisement requiring the creditors to
present their claims to a referee, must be mailed to each creditor
whose name appears on the books of the assignor or corporation,
with the postage thereon prepaid at least twenty days before the
day specified in such notice or advertisement. Proofs of such
mailing shall be required on the application for a final decree
passing the accounts of the assignee or receiver unless proof is
31

482 Special Teem — Eiest Department. [Eule S

furnished that personal service of such notice or copy of advertise-
ment has been made upon the creditor.

RULE IV.

There shall be a Special Term of the Supreme Court for the
transaction of ex parte business, to be held on the first Monday of
each month and to continue to and including the Saturday prior
to the first Monday of the following month. The court shall open
at 10:30 o'clock in the morning, and shall continue in session
until 4 o'clock in the afternoon, except Saturdays, upon v?hich
day the court may be adjourned at 12 o'clock noon, and shall be
open every day in the year, except Sundays and legal holidays.
This Special Term shall be known as Special Term, Part 2. The
justice assigned to Part 2 shall also attend to the drawing of jurors
for the Trial Term of the Supreme Court.

RULE V.

Application for all court orders, ex parte or by consent, or
where notice is not required or has been waived, must be made
to Special Term, Part 2. Any ex parte court order granted by
any justice of the court other than the one assigned to hold Part 2
of the Special Term, shall not be entered by the clerk. All appli-
cations for judgment in actions where the defendant has failed
to appear, or has waived notice of motion for judgment or has
consented thereto, except in actions for divorce, all proceedings
under the Domestic Relations Law for the adoption of children,
and all proceedings under the Insanity Law for the commitment
of a person alleged to be insane, shall be made to said Special
Term, Part 2, and shall not be made to any other court or justice.
All orders for the examination of parties or witnesses in supple-
mentary proceedings, or to perpetuate testimony, or for the exam-
ination of parties before trial, or for the examination of witnesses
under letters rogatory, or foreign commissions, or in aid of an
attachment, or for any other purpose, or in any proceeding (except
an order to show cause or a warrant issued under section 2269
of the Code of Civil Procedure, which must be made returnable
before Part 1 of the Special Term), shall be made returnable
before the justice assigned to bold said Special Term, Part 2,

Rule 5] Special Eules of Peactice. 483

unless made returnable before a referee or commissioner under
express statutory authority, and all writs of habeas corpus or other
writs that are required by law to be returnable at a Special Term
of the 'Supreme Court, or before a justice thereof, must be made
returnable at the said Special Term, Part 2, or before the justice
assigned to hold the same. Any writ or order before mentioned
returnable elsewhere shall, upon its return, be transferred to said
Special Term, Part 2, for hearing and decision. If not so trans-
ferred, the writ or order shall be disregarded. In actions for
absolute divorce or to annul a marriage, where no answer is inter-
posed, a reference to take proof will not be granted. In such
cases the application for judgment must be made at the Special
Term, Part 3, and the case placed upon the preferred calendar
as hereinbefore provided. Whenever the justice assigned to
either Part 1, Part 2 or Part 3 of the Special Term is disqualified
from hearing any application or motion that shall be brought on
before him, he may send such application to such other Part of
the Special Term as he shall select, to be heard and disposed of.

Proceedings under section 511 of the Consolidation Act, and all
other proceedings authorized by title 5 of said act, to be had be-
fore a justice holding the Chambers of the Court, must be heard
in the said Special Term, Part 2.

If a jury is demanded, the justice holding such term may con-
tinue such proceedings before the justice holding one of the Trial
Terms, where a jury shall be forthwith empaneled and the ques-
tion determined and the proceeding finally disposed of as required
by said act. In case neither of the Trial Terms is in session the
justice assigned to the said Special Term, Part 2, may empanel a
jury and dispose of the proceeding as required by the said act. In
case of an appeal from an order of commitment under section 63
of the Insanity Law, the justice assigned to Part 2 of the Special
Term may send the question of the insanity of such alleged lunatic
to either part of the Trial Terms for trial before a jury as required
by said section. The justice trying such proceeding before a jury
shall certify the verdict to the justice assigned to Part 2 of the
Special Term, who shall make the order as required by such sec-
tion.

In an application for a commitment under section 60 of the In-
sanity Law (chapter 545 of the Laws of 1896) it must be shown

484 Special Term — First Department. [Kule 6

ty the petition or by an accompanying affidavit whether or not
the person alleged to be insane is confined on a criminal charge
or on bail pending the determination of a criminal charge, or in
official custody for the purpose of ascertaining his condition after
a criminal charge has been made against him. If a criminal
charge is pending against the person thuS alleged to be insane, two
days' notice of the time and place of presenting the application
to the Court or a justice thereof must be given to the district
attorney.

EULE VI.

The following regulations will apply to all the insolvent assign-
ments for the benefit of creditors and applications to the court
thereunder :

Subdivision 1. Duties of the Clerk. — The clerk, in addition
to the books now kept by him, shall provide a register and docket.

In the register shall be entered in full every decree and final
order made in the proceedings according to date, and the docket
shall contain a brief memorandum of each day's proceedings ac-
cording to their respective titles.

The register and docket shall be, at all times during court hours,
open for public inspection.

Subd. 2. Each petition or order or decree filed shall be indorsed
with the day and date of such filing, and the papers in each case
shall be kept in a file by themselves.

Subd. 3. 'No paper shall be permitted to be taken off the files
of the court for any purpose, except on an order of the court.

Subd. 4. Every paper filed shall have a brief memorandum
indorsed on the outside cover, showing the nature thereof.

Subd. 5. Copies of any and all papers in these proceedings
shall be furnished to any person applying for same upon the pay-
ment of the legal fees.

Subd. 6. Process. — All process, citations, summons and sub-
poenas shall issue out of the court under the seal thereof and be
tested by the clerk.

Subd. 7. Appearances. — Any party may appear in these pro-
ceedings, either in person or by attorney — if by attorney the
name of such attorney, with his place of business and residence,
shall be indorsed on each and every paper filed by him, and his
name shall be entered in the docket.

Euie 6] Special Eules of Peactice. 485

Subd. 8. Schedules. — The schedule of liabilities and assets re-
quired to be filed by the assignor or assignee shall fully and fairly
state the nominal and actual value of the assets, and the cause for
the difference, and a separate affidavit will be required vsrhich shall
fully explain the cause of such diiierence. If required the affi-
davits of disinterested experts as to such value must be furnished.

Subd. 9. Signing of. — Where there may be more than one
sheet of paper necessary to contain the schedules, each page shall
be signed by the person or persons verifying the same. The
sheets of paper on v^hich the schedules are written shall be se-
curely fastened before the filing thereof, and shall be indorsed
with the full name of the assignor and assignee, and when filed
by an attorney shall also be indorsed with his name and business
address.

Subd. 10. Filing by Assignee. — ■ Should the schedules be filed
by the assignee there must be a full affidavit made by such assignee
and some disinterested expert, showing the nature and value of
the property assigned.

Subd. 11. Name and Eesidence. — The name, residence, occu-
pation and place of business of the assignor, and name and place
of residence of the assignee, may be incorporated in the affidavit
or annexed to the schedules.

'Subd. 12. Eecapitulation. — There shall be a recapitulation at
the end of the schedules as follows:

Debts and liabilities amount to $ ; assets nominally

worth $ ; assets actually worth $

Subd. 13, Contingent.' — Contingent liabilities shall appear on
a separate sheet of paper.

Subd. 14. Amendments of.— Application to amend the sched-
ules shall be made by verified petition, in which the amendments
sought to be made shall appear in full and such amendments shall
be verified in the same manner as the original schedules were
verified.

Subd. 15. Bonds of Assignee. — The bond shall be joint and
several in form and must be accompanied by the affidavit pre-
scribed by section 812 of the Code of Civil Procedure, and also by
the affidavit of each surety, setting forth his business and where
it is carried on, the amount of his debts and liabilities, and the
description and value of property, real or personal, owned by him.

486 Special Teem — Fiest Department. [Rule 6

so that it may appear that he is worth the amount in which he is
required to justify over and above his debts and liabilities.

Subd. 16. Justification of Sureties. — The court may in its
discretion require any surety to appear and justify.

Subd. lY. At least one of such sureties shall be a freeholder.
If the penalty of the bond be $20,000 or over, it may be executed
by two sureties justifying each in that sum, or by more than two
sureties, the amount of whose justification united is double the
penalty of the bond.

Subd. 18. Provisional. — The affidavit upon which application
is made for leave to file a provisional bond, must show fully and
fairly the nature and extent of the property assigned, and good
and sufficient reasons must be shown why the schedules cannot be
filed, and it must appear satisfactorily to the Court that a neces-
sity exists for the filing of such provisional bond, and for the pur-
poses of this act the affidavit so filed shall be deemed a schedule of
the assigned property until such time as the regular schedule shall
,be filed.

Upon the filing of the schedules the amount of the bond will be
■determined finally, and should the provisional bond already filed
be deemed sufficient, an order will be granted making such bond as
approved the final bond.

Subd. 19. Assignee. — Every assignee shall keep full, exact and
regular books of account of all receipts, payments and expendi-
tures of money by him, which said books shall always, during busi-
ness hours, be open to the inspection of any person interested in
the trust estate.

Subd. 20. In making sales at auction of personal property, the
assignee shall give at least ten days' notice of the time and place
of the sale and of the articles to be sold by advertisement in one
or more newspapers, and he shall give notice of the sale at auction
of any real estate at least twenty days before such sale. Upon
such sales the assignee shall sell by printed catalogue, in parcels,
and shall file a copy of such catalogue, with the prices obtained
for the goods sold, with his final account.

Subd. 21. When any notice is served on the creditors of the in-
solvent, pursuant to the provisions of the statute, or these rules, by
mail, every envelope containing such notice shall have upon it a

Eule 6] Special Eules of Peactice. 487

■direction to the postmaster, at the place to which it is sent, to re-
turn the same to the sender within ten days unless called for.
Upon every application made to the court upon such service, an
affidavit shall be presented showing whether any such notices have
been returned.

Subd. 22. Upon an application made for a general citation, the
assignee shall file with his petition his account, with the voucher.

Subd. 23. The assignee must file an account in all cases, which
shall be referred for examination.

Discharge. — No discharge shall be granted an assignee who has
not advertised for claims pursuant to section 4: of the statute and
the 30th subdivision of this rule.

No discharge can be granted an assignee and his sureties in any
■case, whether the creditors have been paid, or have released, or
have entered into composition or not, except in a regular proceed-
ing for an accounting, under section 2^0 of the act, commenced by
petition for citation and citation thereon to all persons interested
in the estate.

Subd. 24'. Substituted Assignee. — ^Whenever an assignee shall
have been removed either on his own petition or on the petition
of any person interested in the estate, and another person ap-
pointed as assignee in his place and stead, a certified copy of the
■order made on such petition shall be filed and recorded in the
clerk's office of the county wherein the original assignment was
recorded, and the clerk of the county shall make such suitable
entry on the margin of the record of the original assignment as
will show the appointment of such substituted assignee, and the
said certified copy of the order shall be attached to the original
-assignment.

Subd. 25. Account of Assignee. — The account of the assignee
shall be in the nature of a debit and credit statement; he shall
debit himself with the assets as shown in the schedules as filed, and
credit himSelf with any decrease as well as expenses.

Subd. 26. — The statement of expenditures shall be full and
complete, and the vouchers for all payments shall be attached to
the account.

Subd. 27. The affirmative on the accounting shall be with the
assignee, and objections to the account may be presented to the
referee in writing, or be brought out on a cross-examination, and

'488 Special Teem — Fikst Depaetment. [Kule 8

in the latter case they must be specifically taken and entered in
the minutes.

'Subd. 28. The testimony taken shall be signed by the several
witnesses, and attached to and filed with a report of the referee.

Subd. 29. Report of Referee. — The report of the referee shall
show all the jurisdictional facts necessary to confer power on the
Court, such as the proper execution and acknowledgment of the
assignment, the recording of the same, the filing of the schedules
and bond, the advertising for creditors, the issuing of the citation,
the presenting of the account, and when any items may be disal-
lowed in the account of the assignee, the same shall be fully set
out in the report.

Subd. 30. Notice to Present Claims. — A copy of the notice of
advertisement reqiiiring creditors to present their claims must be
mailed to each creditor whose name appears on the books of the
assignor, with the postage thereon prepaid, at least thirty days
before the days specified in such advertisement, and proof of such,
mailing must be required on the application for a final decree,
unless personal service thereof is made upon such creditors.

Subd. 31. The decision of the referee after the trial of a dis-
puted claim under section 26 of the General Assignment Act,
shall be filed with the clerk of the court, and a copy served on the
defeated party. The court shall, on application of either party,
confirm the said report, and the decision of the referee shall be
reviewed only by appeal from the order confirming the report to
the Appellate Division.

RULE vn.

There shall be six Special Terms of the Supreme Court for the
trial of issues of law and issues of fact triable by the Court, and
for the hearing and decision of all other matters and special pro-
ceedings not otherwise provided for, to be known respectively as
Parts 3, 4, 5, 6, 'I and 8. Each term shall commence on the
first Monday of each month, and shall continue until the fourth
Friday succeeding the first Monday.

RULE VIII.

A general calendar of all issues of fact triable by the court
without a jury in the county of ISFew York shall be made from

Eule 8] Special Rules of Peacticb. 489

time to time as shall be ordered by the Appellate Division of the
Supreme Court in the First Department. Such calendar shall
continue to be the general calendar for every successive Special
Term until a new general calendar is ordered as aforesaid. New
cases as they are noticed for trial, shall be placed at the foot of
this general calendar, upon filing a note of issue as required by the
Code of Civil Procedure. A motion to correct this general cal-
endar, or to add to it any cases which had theretofore been upon
the calendar of the Special Term of the Supreme Court, or upon
the calendar of the Superior Court or Court of Common Pleas,
may be made on two days' notice to the opposing party, at Part
3 of the Special Term, on the call of any Friday calendar. There
shall also be made up a special calendar, upon which shall be
placed all actions against the New York Elevated Pailroad Com-
pany, the Metropolitan Elevated Railroad Company and the Man-
hattan Elevated Railway Company, to enjoin the use of public
streets in the city of New York, which are now pending or whicli
shall hereafter be brought for that purpose, which special calendar
shall be called and disposed of in Part 6 of the Special Term.
There shall also be made up a special calendar upon which shall
be placed all issues of law now at issue, and upon which shall be
placed, at the foot thereof, new issues of law hereafter noticed for
trial. There shall also be made up a special calendar, which shall
be knovsm as the preferred calendar, upon which shall be placed all
undefended actions for divorce; or for annulment of marriage;
or for a separation; all actions entitled under the Code, or the
General or Special Rules of Practice to a preference ; all applica-
tions for judgment in actions where issues have been framed and
sent to a jury for trial ; all applications for final judgment where
an interlocutory judgment has been entered and an account has
been taken or other proceedings had before a referee ; all motions
for a new trial upon exceptions or on the ground of surprise or
newly discovered evidence; and exceptions to and motions to con-
firm a referee's report in special proceedings, including surplus
money proceedings, and in actions in which an issue of fact has
been tried by a referee where application to the court for final
judgment or a final order is necessary ; all applications for the ap-
pointment of commissioners; for a final order or final judgment
in proceedings to condemn real estate for public use ; and all appli-

4&0 Special Teem — Tiest Depaetment. [Rule 9

cations for final order in certiorari proceedings or in proceedings
where an alternative writ o£ mandamus has been issued. The
special preferred calendar, and the special calendar of issues of
law, herein provided for shall be called and disposed of in Part
3 of the Special Term; provided, however, that the justice as-
signed to Part 3 may, from time to time, assign preferred cases
and issues of law from such calendars to the parts of the Special
Term other than Part 6, except as provided in Rule 9, for hearing
and decision. Applications for final judgment in actions to annul
a marriage, or for a divorce, shall be made at Special Term, Part
3, upon the judgment-roll, a certificate of the county clerk that no
order has been entered in the action since the entry 6f the inter-
locutory judgment, or if any such order or orders have been en-
tered, that copies thereof are annexed to his certificate and proof
by affidavits that no application has been made for an order to the
knowledge of the party making application, or his attorney, except
where an order has been granted, and a certified copy of such order
is annexed to the certificate of the county clerk. Where, in such
an action, a party other than the party making the application has
appeared in the action, five days' notice of such application, with
the papers upon which the same was made and a copy of the pro-
posed final judgment, shall be served upon the attorney who has
appeared in the action.

In a proceeding for the revocation of a liquor tax certificate,
when the issue has been joined, the proceeding shall be placed
"upon the preferred calendar called in Special Term, Part 3, and
disposed of as other cases upon the said calendar. In case, how-
ever, that issue is joined in such a proceeding too late to place it
on the calendar of the June Special Term in any year, it may be
brought on by either party during July, August and September,
at Special Term, Part 2, and there heard and determined. In
case a proceeding is not so brought on in Part 2 as hereinbefore
provided before the first Monday in October, it shall be placed
upon the preferred calendar to be called at Special Term, Part 3,
for the October term.

RULE IX.

The clerk of Part 3 of the Special Term, with the assistance
of the special deputy clerk assigned to such part, and of the clerk
of Part 4, shall each week make up a calendar of cases from the

Eule 9] Special Rules of Peactioe. 491

general calendar for trial at Special Term, which calendar shall
be published at least two days before the same is called. This cal-
endar shall be called by the justice assigned to the Special Term,
Part 3, on Friday, of each week, at two o'clock p. m., unless an-
other day is specially fixed by him to call such calendar. Causes
on such calendar may be set down for trial on any day in the week
following. In case it should appear, upon the call of the calendar
on Friday, that the number of causes set down for trial on the fol-
lowing week will not be sufficient to occupy the available time of
all the Special Terms of the court assigned to the trial of equity
causes, the justice of the Supreme Court, assigned to the Special
Term, Part 3, shall order a calendar of causes from the general
calendar to be made up and to be called upon Wednesday morning
following at ten o'clock.

Upon the call of such calendar, causes may be set down for any
day of the week in which the calendar is so called, or for the suc-
ceeding week.

The said clerks shall make up a day calendar for each day from
the general Special Term calendar of the court, upon which shall
be placed all the causes set down for that day or remaining undis-
posed of from previous days, which day calendar shall be called in
Part 3 of the Special Term, at 10': 15 a. m. of each day, and
causes therefrom shall be assigned to the several parts of the
Special Term (except Part 6), for trial. In case Part 6 shall not
have business enough to occupy it during court hours, cases from
Part 3 shall be sent to it for trial.

When a cause thus set down on the call of the calendar on any
Friday or Wednesday for trial appears upon the day calendar, it
must be tried or go to the foot of the general calendar, unless it
appears by affidavit to the satisfaction of the court calling the
day calendar that, in consequence of the happening of any event
since the cause was so set down for trial, the trial cannot with
justice to one of the parties proceed. The court may then by
order set the cause down for trial on another day in the term, or
place the cause on the Friday calendar. In a cause upon the day
calendar for trial where it shall appear to the court by affidavit
that counsel who is to try the cause is to argue upon the day cal-
endar of the Svipreme Court of the United States or upon the day
calendar of the Court of Appeals of the State of ISTew York, or

492 Special Teem — First Depaetment. [Eule 13

upon the day calendar of any Appellate Division of the Supreme
Court, or is actually engaged in the trial of a cause in a court of
record in the counties of New York or Kings, the cause shall he
passed for the day or until such argument or trial is concluded,
unless the trial in which the counsel is engaged is a protracted one.
In no other event shall a cause upon the day calendar be passed
for the day.

EULE X.

In no event shall a cause on the day calendar be passed from
day to day on account of the engagement of counsel for more
than three days.

Not more than two causes shall be held ready on the day
calendar for one counsel in addition to the cause in which he is
engaged, and in all causes the coimsel who is to try the same
must be designated, if required by the court, on the call of the
day calendar.

RUIE XI.

In all actions brought for the foreclosure of a mortgage or for
the foreclosure of mechanics' liens, either party may apply to
the Special Term, Part 3, upon notice of two days to the adverse
party to have the case placed upon the preferred calendar, to be
called in Part 3 of the Special Term, and if it shall appear to
the court upon such application that the trial will not be a pro-
tracted one, or that for any special reason the case should be
promptly disposed of, it shall be placed upon the preferred cal-
endar for trial.

RULE XII.

In all actions in which a preference is given by express pro-
vision of law, or by the General Rules of Practice or by special
rules, the party entitled to such preference may, upon two days'
notice, apply to Special Term, Part 3, for an order placing the
cause upon the preferred calendar. In case such preference is
granted, the case shall be placed upon the preferred calendar as
of the date when the motion was made, and shall be called in its
order.

RUIE xin.

No Special Term shall be continued beyond the Friday pre-
ceding the commencement of a new term, except for the purpose

Eule 14] Special Eules of Pkactice. 493

of completing a trial already commenced during the term, in
which case immediately upon the completion of the trial, the court
shall adjourn for the term.

EULE XIV.

Segulating the Procedure Upon Applications for Naturalization in the First

Judicial District.

AH applications of aliens to be admitted to become citizens of
the United States must be heard and final action had thereon at
Part 2 of the Special Term. Such hearings shall be had only
upon Mondays, Wednesdays and Thursdays of each week during
the year, which are hereby designated as the stated days for such
applications. The application which is required by chapter 927
of the Laws of 1895 to be filed with the clerk of the court shall
be so filed with the assistant clerk of such Special Term assigned
to that branch of the business. Such application shall specify
the stated day (more than fourten davs thereafter) when such ap-
plications will be brought on for hearing and final action.

The assistant clerk assigned to naturalization business shall
make up a calendar of such applications for each of said stated
days, upon which he will place all such applications in the order
of filing, for the days specified in the application. The calendar
will be called at two o'clock in the afternoon upon each stated day.
The hearing upon such applications shall be had upon the call
of the calendar and the testimony of the applicant and his wit-
nesses shall be thereupon taken in open court. Such testimony
shall be taken down by the stenographer assigned to that branch
of the court, and shall be written out and filed with the appli-
cation.

If the applicant fail to appear upon the call of the calendar,
the application will be dismissed without prejudice to a fresh
application.

The special deputy to the clerk of the city and county of 'New
York, in Part 8 of the Special Term, is hereby directed, at all
times until a justice is assigned to hold said part, to act as an
additional assistant to the clerk assigned to naturalization business,
and to devote his entire time to the duties of what is known as
the JSTaturalizatlon Bureau; under the general direction of the
special deputy in Part 2 of the Special Term and of the assistants
to such deputy in said ISTaturalization Bureau.

494 Supreme Couet — Fiest Depaetment. [Eule 1

RTILE XV.

All sales of real estate, or interest or estate therein made
in pursuance of any judgment, decree or order, or by an officer
of the court under its direction must be made as directed by sec-
tion 1678 of the Code, and notice of such sale must be given as
prescribed in that section.

The referee or officer making such sale shall cause to be pub-
lished with the notice of sale a diagram of the property to be sold
or of which an interest therein is to be sold, showing the street or
avenue upon which such property is located, its street or avenue
number, if any, and specifying the number of feet to the nearest
cross street or avenue. Where such sale is made to satisfy any
lien or charge upon the real property sold, the approximate
amount of such lien or charge shall be stated in a note annexed to
such notice of sale, and where there are taxes, assessments or
other liens upon the said property, which are to be allowed to the
purchaser out of the purchase money, or which are to be paid by
the referee, the referee or officer making such sale shall also state
in a note annexed to such notice of sale the approximate amount
of such charge or lien. An unintentional error, however, in such
diagram, or in the amount of the lien or charge for which the
property shall be sold, or the amount of such taxes or other lien to
be allowed to the purchaser upon the sale, shall not invalidate the
sale, nor authorize the court to relieve the purchaser, or order a
new sale.

RULES TO REGULATE THE ATTENDANCE AND PRESCRIBE THE
DUTIES OF THE CLERKS, ASSISTANT CLERKS, CRIERS, INTER-
PRETERS, STENOGRAPHERS, LIBRARIANS AND ATTENDANTS OF
THE SUPREME COURT.

RULE I.

The special deputy to the clerk of the city and county of New
York, assigned to each Special and Trial Term of the Supreme
Court shall attend on each day that the court is in session and
remain in attendance while the court is in session. The special
deputy clerk assigned to Part 2 of the Trial Terms shall have
charge of the general and special calendars of the Trial Terms.
The assistants to such special deputy clerk shall, in turn, as re-

Eule 1] Special Eules of Peactice. 495

quired by him, attend in Part 2 of the Court. All orders relating
to the calendar, and all notes of issue of cases to be placed upon
the calendar, shall be filed with the clerk of Part 2 of the Trial
Term. He shall attend each Friday or Wednesday call of the
calendar, shall make up the general and special calendars of such
Trial Terms, and shall make up a day calendar for each day of
the term when the court is in session. The clerk assigned to the
other Trial Terms of the Supreme Court shall render him assist-
ance when he requires it, when they are not actually engaged in
their branch of the court.

The special deputy to the county clerk assigned to Part 3 of
the Special Term of the Supreme Court shall have charge of the
general and special calendars of the Special Term, and all notes
of issue of cases to be placed upon the Special Term calendar and
orders relating to the calendar shall be filed with him.

There shall be two assistant clerks to Part 3 of the Special
Term, who shall in turn, as directed by such special deputy clerk,
attend the sitting of that part, and who shall assist the clerk thereof
in preparing the calendar. Special deputy clerks assigned to the
other Special Terms shall render the special deputy of Part 3
such assistance as he shall require when the courts to which they
are respectively assigned .are not in session.

The special deputy clerk assigned to each Trial and Special
Term of the Court shall, subject to the supervision of the justice
assigned thereto, be responsible for the proper condition of the
court room, for the supply of stationery and for the attendance
of the officers or attendants assigned to such Special and Trial
Terms, and for the performance by such officers or attendants of
their respective duties. He shall keep a book in which shall be
entered the time at which the officers or attendants assigned to
that part of the court shall appear and remain in court, and shall
transmit at the end of each month, to the Appellate Division of
the Supreme Court, a copy of such record.

The special deputy clerk assigned to the Special Term for the
hearing of motions shall make up a day calendar of motions to
be heard each day (not later than three o'clock for the succeeding
day) and shall cause the same to be published in the " Law
Journal." He shall attend at the call of the calendar and render
such assistance as the justice assigned to that term of the court

496 SuPEEME CouET — FiEST Depaetment. [Rule 1

shall require. The two assistant clerks assigned to that part of
the court shall attend each day from 10 o'clock in the morning
until 4 o'clock in the afternoon, or as much later as may be
necessary and shall perform such duties as the deputy clerk
assigned to that part of the court shall require. The deputy
clerk assigned to the Special Term for the transaction of ex -parte
business shall attend from 10 o'clock in the morning until 4
o'clock in the afternoon or as much later as the justice assigned
to that branch of the court shall require, and shall render to the
justice such assistance as he shall require. The two assistant
clerks assigned to that part of the court shall keep the records of
the court and shall perform such additional duties as are required
by the clerk. There shall be three additional assistants to such
clerk (to be assigned to this part of the Special Term) who shall
have charge of the records of naturalization heretofore kept in the
offices of the clerk of the city and county of New York, the clerk
of the Superior Court of the City of New York, and the clerk of
the Court of Common Pleas for the city and county of New York,
who shall attend to applications for naturalization and keep the
books and records relating thereto, and who shall perform such
additional duties as said special deputy clerk shall require. There
shall be two other additional assistants to such special deputy clerk
(to be assigned to this branch of the court), who shall have charge
of the records relating to assignments for the benefit of creditors
and who shall perform all the clerical duties relating thereto.
They shall also perform generally such duties as may be required
of them by the justice assigned to this branch of the court by the
clerk thereof. The assistants to this branch of the Special Term
shall attend the office provided for them in the County Court
House, in the city of New York, at 10 o'clock in the morning and
shall remain until 4 o'clock in the afternoon, and so much later as
shall be necessary. The clerk assigned to the term for the hearing of
appeals from the City Court and District Courts in the city of
New York shall attend the sitting of the Appellate Term while in
session, shall keep the records of such court and perform such
duties in addition as shall be required of him by the justices
assigned to hold such term. When the court is not in session he
shall attend each day from 10 in the morning until 4 o'clock
in the afternoon, and when not occupied with the business of sucli

E.ule 3] Special Rules of Practice. 497i

appellate branch he shall assist the special deputy clerks of Part
2 of the Trial Term, and of Part 3 of the Special Term, and pre-
form such other duties as may be required of him by any justice
of the Supreme Court.

RTJIE n.

There shall be a stenographer attached to each Special and
Trial Term of the Supreme Court, whose duty it shall be to
attend at the session of the Court to which he is assigned. In
case his services are not needed in the Court to which he is as-
signed, it shall be his duty to attend any other term of the Court
at which his services shall be required, either by the justice presid-
ing at such other term or by the special deputy clerk attached
thereto. The stenographers assigned to the Special or Trial
Terms of the Supreme Court must attend in the Court House
each day at ten o'clock in the morning, and remain as long as he is
required to remain by the justice presiding at the part to which
he is assigned. They shall also render such asistanee to any jus-
tice of the court as he shall require. In case of the absence of
any stenographer from the part to which he is assigned, owing to
ilbiess, or when owing to an accumulation of work, any such
stenographer shall be permitted by the justice presiding in such
part to absent himself for a definite period from the daily sittings
of the court, for the purpose of enabling him to write out the testi-
mony taken by him, such stenographer may, subject to the ap-
proval of such justice, select another stenographer to take his place
during such temporary absence.

Such temporary stenographer shall, before acting, take the oath
of office. He shall be paid by the official stenographer whose
place he takes, and his services shall not be a charge upon the city
or county of Kew York.

RTTIE in.

It shall be the duty of the librarian to take charge of the library
of the Appellate Division of the Supreme Court, to attend in the
room of such library each day during the session of the court when
the court is in session ; and when not in session from 10 o'clock in
the morning until 4 o'clock in the afternoon, or as much longer
as he shall be required by either of the justices of the Appellate
32

498 SUPEEME COUET FlEST Depaetmekt. [Eule 4

Division, and to perform generally such duties in relation to such
library as either of the said justices shall require. He shall be
responsible for all the books in the library, and shall see to it that
all books removed from the library to the court room, or elsewhere,
' are returned to the library, and shall be responsible generally for
^ the safe-keeping and proper condition of the books and furniture
;' in the library room. The assistant to the librarian shall have
' charge of the library for the use of the justices of the Supreme
Court. He shall attend at the County Court House from 10
o'clock in the morning, until 4 o'clock in the afternoon, and as
much longer as any justice of the Supreme Court shall require,
and he shall be responsible for the safety and condition of the
books in the library and of the furniture in the library room, and
for the return of all books taken to the court rooms or elsewhere.
Wo books appertaining to that library shall, under any circum-
stances, be removed from the County Court House, and the assist-
ant librarian shall enforce all orders in regard to the safe-keeping
and preservation of such books as shall be made from time to time
by a justice of the Supreme Court.

RULE IV.

The justices of the Appellate Division of the Supreme Court
in the Eirst Department will detail one of the interpreters to act
as chief interpreter, whose duty it will be to attend at the Court
House on each day, except on Sundays and legal holidays, from
10 o'clock in the morning until 4 o'clock in the afternoon and
until each Trial and Special Term of the court shall have ad-
journed. He shall keep a record, in a book to be provided for
the purpose, of the time on each day at which each interpreter of
the court shall report for duty and the time at which each inter-
preter leaves the Court House. He shall assign each interpreter
to duty in the particular branch of the court at which his services
are required, and shall make a monthly report to the presiding
justice of the Supreme Court in the First Department as to the
attendance of interpreters, specifying the days and portions of
days that each interpreter shall have been absent and the manner
in which each of the interpreters has performed his duties, and
with such other recommendations as he shall consider proper. He
shall at all times obey the directions of any of the justices of the

Rule 5] Special Eules of Practice. 499

Supreme Court as to the performance of his duties and furnish
interpreters for the several parts of the court when called upon
to do so. The other interpreters shall attend on each day, except
on Sundays and legal holidays, from ten o'clock in the morning
until four o'clock in the afternoon, and as much later as any
hranch of the court is in session. They shall be under the general
direction of the chief interpreter and shall attend at each branch
of the court as required either by him or by a justice of the Su-
preme Court. Each interpreter shall also render any service re-
quired by any justice of the Supreme Court, whether in court or
out of court. They shall report to the chief interpreter their
arrival at and departure from the Court House and generally shall
obey his instructions in regard to the performance of their duties.
When not actually engaged at a term of the court the interpreters
will be in attendance at a room to be provided for that purpose,
so as to be always available when their services are required.

RULE V.

The crier of the Appellate Division of the Supreme Court shall
assign the attendants to the Appellate Division and to the various
Special and Trial Terms of the Supreme Court. He shall have
general charge of all the attendants and it shall be his duty to see
that they properly perform their duties. He shall report to the
Appellate Division of the Supreme Court any one of such attend-
ants who fails to attend and perform the duties required of him,
or who in any way misconducts himself. He shall attend at each
session of the Appellate Division of the Supreme Court and shall
open and adjourn said court except when his attendance is dis-
pensed with by the presiding justice. He shall make a report each
month to the Appellate Division of any violation of any of the
rules of the court of which he is cognizant, and shall perform such
other duties as the presiding justice or the Appellate Division
shall require.

The assistant to the said crier shall attend at the County Court
House in the city of New York, on each day from ten o'clock in
the morning until four o'clock in the afternoon, and as much
longer as his attendance shall be required by any of the justices
of the court, or while any branch of the court is in session. In
the absence of the crier, he shall perform all the duties of the

500 StTPEEME CouET — FiEST Depaetment. [Rule 4:

crier, and shall perforin such other duties as any justice of the
Supreme Court, or the crier, shall require. The assistant crier
shall wear while in court, or in the discharge of his duties, a uni-
form such as is now established for the crier of the Supreme
Court.

RULE VI.

The attendants shall each day attend the various branches or
terms of the court to which they are assigned by the crier from
ten o'clock in the morning until four o'clock in the afternoon, or
so much longer as the court is in session or as a justice of the Su-
preme Court requires them to attend. They shall report to the
clerk of the parts to which they are assigned the hour of their
arrival and before they leave. They shall wear the uniform now
prescribed for the attendants of the Supreme Court. In addition
to their ordinary duties in court they shall perform such other
duties as may be required of them by a Justice of the Supreme
Court, by the special deputy clerk of the part to which they are
assigned, or by the crier or assistant to the crier.

RULE vn.

The special deputy clerk assigned to each of the Trial Terms
of the court shall, within five days after the discharge from serv-
ice of each of the panels of the trial jurors, make a full and com-
plete return to the commissioners of jurors and to the special
deputy clerk of Part 4 of the Trial Term, showing :

1. The name and residence of each juror who attended and
served ; the number of days the juror attended for the purpose of
serving, and the number of days he actually served.

2. The name and residence of each juror who was excused or
discharged, with the reason therefor.

3. The name and residence of each juror notified who did not
attend or serve.

4. The name and residence of each person fined, and the date
and amount of his fine, and the part of the court at which the
fine was imposed, and the name of the justice who held the same
(unless the fine has been remitted).

The special deputy clerk of Part 4 shall keep a record show-
ing all the above facts in reference to all the jurors notified to at-

Rule 3] Special Eules of Peactice. 501

tend at any of the Trial Terms of &aid court, and shall, within
ten days after the discharge from service of each of the panels of
trial jurors, make a return to the counsel to the corporation of all
fines imposed, which return shall give the name of each person
fined, his address, the amount of the fine, the date when imposed,
the part of the court at which the fine was imposed, and the name
of the justice who held the same.

Appellate Division Rules.

FIRST DEPAETMENT.

(Amended to July i, igio.)

RULE I.

The court will open at one o'clock and continue xmtil five
o'clock in the afternoon, unless sooner adjourned, except that on
the first and third Fridays of each term the court will open at
half past ten in the forenoon.

RULE n.

The first and third Fridays of each term and such days as
shall be designated for hearing appeals from orders in the months
of July, August or September shall be motion days.

The clerk will make up a calendar for each motion day of all
motions noticed to be heard on that day. A note of issue stating
the nature of the motion and the day for which it has been noticed
must be filed with the clerk 'before twelve o'clock noon on the
Thursday preceding the Friday for which the motion is noticed.

ISTo motion not upon such calendar will be heard.

All ex parte ap.plications must be made upon motion days, ex-
cept by special permission of the court.

RULE m.

Appeals from orders will be heard only upon motion days, the
calendar of which will be taken up immediately after the dis-
position of the motion calendar. On the argumemt of such ap-
peals not more than fifteen minutes will be allowed' to each side.

502 Appellate Division — Fiest Department. [Rule 5

except when the court otherwise orders. Appeals from orders
which have been placed upon the calendar may be submitted by
the parties, with the approbation of the court, at any time during
the term, upon delivering to and leaving with the clerk the requi-
site number of printed copies of the points.

RULE IV.

Appeals from orders may be noticed for argument on any mo-
tion day. The appellant or moving party must file with the clerk
of the Appellate Division, at least eight days before the day upon
which such appeal shall have been noticed, a note of issue, which
shall state the day upon which the notice of appeal shall have been
served, and sixteen copies of the papers upon which the appeal is
to be heard, printed as required by Kule 41 of the General Rules
of Practice, with an affidavit showing the service of three copies
thereof upon the attorney for the respondent, together with a no-
tic« of argument of the appeal with admission or proof of service ;
and the Clerk shall thereupon place the appeal upon the calendar
for the day upon which such appeal shall have been noticed. If
an appeal shall have been noticed for argument by the respondent,
and the appellant or other party whose duty it is to file sixteen
copies of the papers upon which the appeal is to be heard, printed
as required by the General Rules of Practice shall fail to file the
game at least eight days before the day for which such appeal is
noticed the opposite party may move upon afildavit and upon four
days notice of motion that the appeal be dismissed or that judg-
ment be rendered in his favor.

At any time before three o'clock of the day preceding the day
upon which a nonenumerated case shall have been noticed for
argument, or to which the hearing thereof shall have been ad-
journed, the respective coimsel may file a written consent with
the clerk that the case may be set down for a subsequent motion
day ; and cases set down will be added to the calendar of that day
at the foot of the cases remaining thereon undisposed of without
further notice.

RUIE V.

The clerk will make up a calendar of enumerated cases for each
term of the court, which shall consist of the enumerated cases

Hule 6] Special Eules of Peactice. 503

upon the calendar of the preceding term undisposed of, and
which shall not have been passed twice upon any of the previous
calendars of the court, to which shall be added new cases which
shall have been noticed as hereafter provided. The appellant or
moving party must file with the clerk of the Appellate Division,
at least fifteen days before the commencement of the term for
which the case has. 'been noticed for argument, a note of issue,
which shall state the day upon which the notice of appeal has been
served, and sixteen copies of the papers upon which the case is to
be heard, printed as -required by the General Rules of Practice,
with an affidavit showing the service of three printed! copies
thereof upon the attorney for the respondent, together vsdth the
notice of argumeait of the case or notice with admission or proof
of service.

If an appeal shall have been noticed for argument by the re-
spondent, and the appellant or other party whose duty it is to file
sixteen copies of the papers upon which the appeal is to be heard,
printed as required by the General Rules of Practice, or sixteen
copies of the points to be relied on by him, shall fail to file the
same at least fifteen days before the day for which such appeal is
noticed, the opposite party may move, upon affidavit and upon
four days' notice -of motion, that the appeal be dismissed or that
judgment be rendered in his favor.

Cases entitled by law to a preference, when such preference is
claimed in the note of issue, shall be placed at the head of the
calendar.

RULE VI.

At least fifteen dkys before the commencement of the term for
which an enumerated case has been noticed for argument the ap-
pellant, the plaintiff in a controversy submitted to the court under
section 12^9 of the-Code of Civil Procedure, the relator in a writ
of certiorari, or the moving party in any case to be heard as an
enumerated case, shall file with the clerk sixteen printed copies
and shall serve on the attorney for the respondents three printed
■copies of the points to be relied upon by him, with a reference to
the authorities to be cited. Within ten days after such service
"the respondent shall file with the clerk sixteen printed copies and
serve on the attorney for the appellant three printed copies of
the points to be relied upon by him, with a reference to the au-

504 Appellate Division — Fiest Depaetment. [Rule 5

thorities to he cited. If the appellaiii desires to present points
or authorities in reply he shall file with the clerk sixteen printed
copies and serve three printed copies thereof on the attorney for
the respondent within fivei days after the receipt of the ^-espond-
ent's points, and no sufeequent points will be received from either
side unless specially requested by the court. No points will be
received by the court on the argument or submission of the ap-
peal unless they shall have been filed and" served as above pro-
vided. At four- o'clock on each day the clerk vrill make up a cal-
endar of fifteen enumerated cases for the next day. A case on
such day calendar will not be reserved or postponed except by
order of the court upon> special cause shown. At any time after
the filing of a note of issUe i^i an enumerated cause and before it
shall have been placed on the day calendar a written consent,
signed by the attorneys or counsel who are to argue the case, that
the appeal be set down for any future day of th« term prior to
the third Thursday thereof may be filed with the clerk, and such
case shall be placed on the day calendar for such day at the end
of the cases remaining thereon undisposed of in the order upon
which they have been set down, provided that no more than fif-
teen cases shall be placed on any day calendar, and provided that
such cases would have been reached on the General Calendar if
not so set down. If a respondent is in default in the filing and
serving of the points, as hereinbefore provided, he will not be
heard, except by special leave of the court.

RULE vn.

In any case in which the printed' copies of the papers upon
which an appeal is to be heard shall have been filed with the clerk
of the Appellate Division, as required by Rule 41 of the General
Rules of Practice and the printed copies of the points filed with
the clerk, as required by Rule 6 of the Rules of the Appellate
Division for the First Department, either party may, by a written
stipulation filed with the clerk, submit the appeal upon the printed
papers and points filed as aforesaid.

RULE vin.

Motions for reargument must be noticed for the term succeeding
that upon which the appeal was decided. Such motions will only be

Eule 10] Special Rules of Pbactiob. 505

heard on notice to the adverse party, stating briefly the grounds
upon which a reargument is asked; and such motion musit be
submitted on printed briefs stating concisely the points supposed
to have been overlooked or misapprehended by the court, anid with
proper reference to the particular portion of the case and the au-
thorities relied upon, and a printed copy of the opinion, and
counsel will not be heard orally.

RULE IX.

'No brief or memorandum of authorities will be received by the
court after the argument of a motion or an appeal, unless permis-
sion be given' by the court for its submission after notice to op-
posing counsel of the application for such permission.

In the event of counsel having cases upon the day calendars of
the Appellate Divisions of the First and Second Departments on
the same day, such counsel shall attend the court in that depart-
ment in which his case stands nearest the head of such day cal-
endar; and his case upon the calendar of the other department
will be held until the argument of the case is finished in the
department in which he is first required to attend. In the event
of counsel having cases upon each of the day calendars of the said
departments upon the same day, which stands equally distant
from the heads of the respective day calendars, such counsel shall
attend court in the Mrst Department.

RULE X.
(Adopted October ii, 1904.)

'Applications " to a justice of the Appellate Division of the
First Judicial Department," under section 1344 of the 'Code of
iCivil Procedure, for the allowance of an appeal to be taken to
such Appellate Division from the de*termination of the justices
designated to hear appeals from the 'City Court of the city of
N"ew York and the Municipal 'Courts of the boroughs of Man-
hattan and the Bronx, may be made upon any motion day prior
to the expiration of the second term of the Appellate Division,
after such determination; and must be upon notice of two days
to the opposite party or partiesi, and a note of issue filed, and
tie same put upon the calendar of motions in the manner pro-

506 Appellate Division — First Depaktment. [Kule 11

vided by Eule 3 of the Appellate Division Eules relating to the
hearing of motions.

The papers upon whioh fiuch application is made must contain
a copy of the opinion of the justices below, if any, a concise
statement of the grounds of alleged error, and proof of due service
of the papers upon which the application is founded. Upon the
calling of the motion calendar, such application must he sub-
mitted without argument.

Such applications will not be entertained unless an application
for leave to appeal has first been made to tbe justices by whom
such determination was made, in the manner provided by Rule 7
for the regulation of the hearing of appeals from the City Court
of the city of New York and the Municipal Courts of the bor-
oughs of Manhattan and the Bronx, and has been denied.

RULE XI.

Every application for admission to practice as an attorney and
counselor-at-law made by a person who has been admitted to prac-
tice and has practiced three years as an attorney and oounsielor-at-
law in the highsst court of law of another State, under Rule II
of the Rules of the Court of Appeals for the admission of
attorneys and counselors-at-law, shall be referred to the Com-
mittee on Character, who shall report to the court upon the
character of the applicant and his qualifications to be admitted
to practice in the courts of this State, and no person will be ad-
mitted to practice on such application until after the Committee
on Character shall have made its report.

APPELLATE DIVISION — SUPREME COURT —
ELECTION CASES.

The justices of the Appellate Division of the Supreme Court
in the First Judicial Department do hereby make and establish
the following rules to promote the efficient administration of jus-
tice in relation to the hearing and determination of any ques-
tions arising under the Election Law (chapter 909 of the Laws of
1896, and the amendments thereto).

Rule 1. All applications to the Supreme Court or a justice
thereof to review the determination and acts of the election offi-

Kule 2] Special Eules of Peacticb. 507

«ers under section 5'6 of the Election Law (chapter 90'9 of the
Laws of 1896, as amended) ; all applications for a writ of man-
damus under section 114 of the said Election Law, and all other
applications to the Supreme Court or a justice thereof under any
of the other provisions of the said Election Law, shall be made
to Special Term, Part 1 of the Supreme Court of the First Judi-
cial District. The justice assigned to such term may hear and
determine any such proceeding or may assign any such proceed-
ing to the other parts of the Special Term for hearing and de-
cision, and such application shall have precedence over all other
■husinesis at any part of the Special Term. The final order deter-
mining such special proceeding should in each case state the facts
found by the Special Term upon which the determination is made
and the determination of the court upon the facts thus stated.

Rule 2. Appeal from any fijial order entered in a proceeding
specified in Rule 1 shall be brought on for hearing at such time
on such day as the Appellate Division shall designate by an order
which will be gramted on the application of any party to such a
special proceeding.

Rules of the Appellate Division of the Supreme Court.

(Secont) Judicial Department.)

Selating to the Calendar, Admission of Attorneys, Naturalization and Appeals
from the Municipal Court.

Enumerated Calendar.

Sixteen (16) copies of the cases must be delivered to the clerk
before the commencement of the argument.

At least ten days before a cause is placed on the day calendar
the appellant shall file with the clerk sixteen printed copies and
serve on the attorney for the respondent three printed copies of
his brief and points. Within five days after such service the re-
spondent shall file with the clerk sixteen printed copies and serve
on the attorney for the appellant three printed copies of his brief
and points. If the appellant desires to present brief or points in
reply, he shall file with the clerk sixteen printed copies thereof
and serve three printed copies on the attorney for the respondent
within three days after the receipt of the respondent's points.

508 Appellate Division — Second Department.

When according to this rule, an appellant is in default, the
appeal may, without previous notice, be dismissed on motion,
when the case is reached for argument, and when a respondent
is in default, he will not be heard except by leave of the court.

This rule shall not apply to appeals from orders, or appeals
from the Municipal Court of the city of New York.

Non-Enumeeated Calendae.

Sixteen (16) copies of the appeal papers and points must be
delivered to the clerk before the commencement of the argument.

(Attention is called to General Eule 41. ) ■ — If this rule is not
strictly complied with, such causes as are therein referred to,
cannot be placed upon the calendar,

RULE 41.

General Rules.

In all cases to be heard in the Appellate Division, except ap-
peal from nonenumerated motions, the papers shall be furnished
by the appellant or tie moving party, and 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 Ap-
pellate 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 judgment was entered, the pleadings, minutes of
trial, and the order sending the case to tbe 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

Eule 41] Special Eules of Practice. 509

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 affidavit that no opinion
was given, or, if given, that copy could not be procured. The
foregoing papers shall constitute the record in the Appellate Divi-
sion. If the papers shall not be filed and served as herein pro-
vided 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.

The papers in all appeals from nonenumerated 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 ad-
versary 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.

(Attention is called to section 1353, Code of Civil Procedure.)

Section 1353. Upon what papers appeal to be heard. — An ap-
peal from a final judgment, taken as prescribed in this title,
must be heard upon a certified copy of the notice of appeal, of
the judgment-roll, and of the case or notice of exceptions, if any,
filed, as prescribed by law, or the general rules of practice after
the entry of the judgment and either before or after the appeal
is taken. An appeal from an interlocutory judgment, or from
an order, taken as prescribed in this title, must be heard upon a

510 Appellate Division — Second Depaetment. [Rule 2

certified copy of the notice of appeal and of the papers used before
the court, judge or justice, upon the hearing of the demurrer, ap-
plication for judgment, or motion as the case requires. Unless
the Appellate Division shall in a special case otherwise direct,
before an appeal shall be placed upon the calendar, the appellant
shall file with the clerk of the Appellate Division the case and
exceptions or the other papers, upon which the appeal shall be
heard, printed as required by the rules of practice; in case the
appeal is from a judgment, the printed case and exceptions must
be ordered filed by the justice or referee before whom the case
was tried. (Amended by ch. 946 of 185-^.)

In the event of counsel having cases upon the day calendars of
the Appellate Divisions of the First and Second Departments
on the same day, such counsel shall attend the court in that de-
partment in which his case stands nearest the head of such day
calendar; and his case upon the calendar of the other department
will be held until the argument of the case is finished in the
department in which he is first required to attend. In the event
of counsel having cases upon each of the day calendars of said
departments upon the same day, which stand equally distant from
the heads of the respective day calendars, such counsel shall attend
court in the First Department.

CALENDAR PRACTICE.
RULE I.

Appeals from orders, heard as nonenuraerated motions, will be
placed upon a separate calendar and called upon the first day of
the term.

RULE n.

A new calendar will be made up for the January Term. Cal-
endars for subsequent terms during the year will be made up by
adding to the calendar of the previous term all new appeals to be
placed in regular order, according to the date of appeal on com-
pliance with the requirements hereinbefore prescribed. An ap-
peal passed during any term may be brought on for argument
on any day during a subsequent term upon stipulation, or upon
four days' notice to the opposing party and on filing with the

Kule 7] Special Rules of Pkactice. 511

clerk such stipulation or proof of service of such notice, the clerk
will cause the appeal to be placed on the day calendar of the day
named in such notice or stipulation.

RULE in.

Appeal from orders will also be heard on the third Monday of
each term, and notices of argument may be given for such day,
and the calendar for such day will consist of causes not called
on the first Monday, and other causes in which the appeal papers
and affidavit of service thereof have been filed with the clerk, as
required by section 1353 of the Code of Civil Procedure and the
General Rules of Practice.

RTJIE IV.

Nonenumerated causes will be placed upon the day calendar
for the first and third Mondays of the term, and the hearing of
such causes will continue from day to day until completed. The
calendar for other days will consist of as many causes as shall
be placed thereon from the general calendar in their numerical
order.

RULE V.

Causes can be reserved by consent for a day subsequent to the
time when they would be reached in their order only when a stipu-
lation to that effect is filed with the clerk before the day calendar
is made up (1 o'clock p. m.).

RULE VI.

Motions, other than appeals from orders, will be heard on the
first and third Mondays of the term, and notes of issue therefor
must be filed with the clerk at least two days before the day for
which they are noticed.

RULE vn.

Notes of issue in appeals from orders. — No appeal from an
order will be heard unless it is placed on the nonenumerated
calendar. The attorney or party intending to move such an ap-
peal for argument shall, at least eight days before the time of the

512 Appellate Division — Second Department. [Rule 11

making up of the calendar, filed witli the clerk a note of issue,
specifying the date of the service of the notice or appeal and
stating that the cause is to be put on the nonenumerated calendar.
No cause shall be put on the enumerated or nonenumerated cal-
endar until the papers required by General Eule 41 shall have
been filed with the clerk.

EULE vm.

Notes of issue in preferred causes. — ^A party who desires to
have a cause heard as a preferred cause, must, in his note of issue,
state his claim for preference, as provided in section 793 of the
Code ; or if an order giving the cause a preference has been made
under that section, the note of issue must be accompanied with
a copy of such order. The clerk, in making up the calendar, shall
place such preferred causes at the head of the general calendar,
indicating that they are preferred, and that class to which they
belong.

RTTIE IX.

Criminal causes may be put upon the calendar at any time. —
Appeals in criminal causes, brought after making up the calendar,
or too late to be placed upon the calendar, may be put upon the
calendar at any time, and brought on for hearing as preferred
causes, upon a notice of ten days to the adverse party, as pro-
vided in section 535 of the Criminal Code. A note of issue must
be filed with the clerk at least five days before the day on which
the cause is to be heard, and he shall put the same upon the cal-
endar for the day on which it shall be noticed, or upon which it
shall be ordered by the court, or stipulated by the parties to be
heard.

RULE X.

Indorsement on brief. — In order to facilitate the work of tie
reporter the counsel who argues the cause orally shall indorse
his name on upper right-hand corner of first page of brief.

RUIE XL

Motions for reargument. — Motions for reargument will be
heard only on notice to the adverse party, stating briefly the

Kizle 13] Special Eules of Peactice. 513

ground upon which a reargument is asked, and such motions must
be submitted upon printed briefs, stating concisely the points
supposed to have been overlooked or misapprehended by the court
with proper reference to the particular portion of the case and the
authorities relied on; and a copy of the opinion delivered by the
court in deciding the cause ; and counsel will not be heard orally.

RULE xn.

When a statute is cited, so much thereof as may be deemed
necessary to the decision of the case should be printed at length
on the brief.

RUIE xin.

The general rule will prevail of imposing costs on the decision
of motions.

Attention is called to section 1355, Code of Civil Procedure.

Section 1355. An appeal taken to the Appellate Division of
the Supreme Court, as prescribed in this title, must be heard
in the department embracing the county in which the judgment
or order appealed from is entered; unless an order is made, as
prescribed in section 231 of this act, directing that it be heard in
another department, or unless appeals pending in one department
are transferred for hearing and determination to another, pur-
suant to article 6, section 1, of the Constitution. The order made
upon the the appeal must be entered in the ofSce of the clerk
of the Appellate Division, and a certified copy thereof, with the
original case or papers upon which the appeal was heard, filed as
provided in section 1353, must be transmitted by the clerk, upon
the payment of his fees, to the clerk of the county where the
judgment or order appealed from was entered, and upon such
certified copy of the order and the case or papers upon which the
appeal was heard, the county clerk shall enter the judgment in his
office.

Remittitur. — The remittitur to be transmitted pursuant to
section 1355 of the Code shall contain a copy of the judgment
order of this court, and the record which has been filed with
the clerk, and shall be sealed with the seal and signed by the
clerk of this court.

514: Appellate Division — Second Depaetment. [Rule 13

RULES EELATING TO THE ADMISSION OF ATTORNEYS IN THE SEC-
OND DEPARTMENT.

Notice of the time of application for admission as attorneys by
those who have passed the examination prescribed by the rules
of the Court of Appeals, will be published in the " Law Journal,"
at which time applicants must file with the clerk the papers
enumerated in Rule 1 of the General Rules of Practice, and ap-
pear personally before the Committee on Character to furnish
such information as the committee may desire from them.

RULES REGULATING THE PROCEDURE UPON APPLICATIONS FOR
NATURALIZATION IN THE SUPREME COURT IN THE SECOND
DEPARTMENT.

All applications of aliens to become citizens of the United
States must be heard in Kings county at the Special Term of the
Supreme Court for the hearing of motions, and in any other
county in the department at any Special Term (whether held
at the same time as a Trial Term or not) at which issues are
triable. Such hearings shall be had in Kings county on Mon-
day of each week during the year, except when Monday is a legal
holiday, in which event they may be had on the day following.
In the other counties of the department such hearing shall be had
on the day of the opening of the court. The days aforesaid are
hereby designated as the stated days for such applications.

The application, which is required by chapter 927 of the Laws
of 189'5 to be filed with the clerk of the court, shall specify the
stated day (more than fourteen days thereafter) when such ap-
plication will be brought on for hearing and final action.

If the applicant fail to appear at the time and place specified
in such application, the application will be dismissed without prej-
udice to a fresh application.

If he appear and for any reason the hearing is not completed
upon the stated day aforesaid, the court may complete such hear-
ing and take final action upon any day in the same term to which
the matter shall be publicly adjourned by the direction of the jus-
tice presiding.

Appeals from the Municipal Court.

All appeals from judgment rendered in the Municipal Court
of the city of New York, in districts embraced within the Second

Eiule 1] Special Rules of Pkactice. 515

Judicial Department, will be heard by the Appellate Division of
the Supreme Court for said department. No Special Calendar
of such appeals will hereafter be made up, but they will be placed
upon the General Calendar of enumerated cases, according to the
date of the appeal, and will be treated in all respects, not herein
specially provided for, like other appeals to the Appellate Division
from courts other than the Supreme Court. Either party may
bring such an appeal on for hearing by a notice of argument,
served at least eight days prior to the beginning of the term. Upon
the return day of said notice the respondent may, upon the de-
fault of his adversary, take a judgment of affirmance or an order
dismissing the appeal as the justice of the case may require; and
it shall not be necessary to make a special motion for the dis-
missal of an appeal, except for failure to file the return. In case
of a failure of any justice of the Municipal Court to make return
to this court, as required by section 317 of chapter 580, Laws
of 1902, it shall be the duty of the appellant forthwith to apply
to this court, under the provisions of sections 3055 and 3056,
to compel such return.

The appeal shall be heard upon the original return or a certified
copy thereof, and each party shall file five copies of any brief or
points which he may desire to submit at least one day before the
argument.

RULE RELATING TO THE FORM OF BOND OF APPLICANTS FOR
LICENSE TO PRACTICE AS OFFICIAL EXAMINERS OF TITLE.

It is ordered that the following special rule, relating to the
form of bonds of applicants for license to practice as official Ex-
aminers of Title, be and the same is hereby prescribed to take
effect forthwith :

BUIE I.

All bonds executed by individual sureties in accordance with
the provisions of section 9 of chapter 444 of the Laws of 190'8,
and the rules of the Court of Appeals adopted pursuant thereto,
must contain a statement of the place of residence of each surety,
giving the street and the number thereof, if such residence is so
known and designated, and in addition to the facts required by
the Rules of the Court of Appeals to be stated in the affidavit of

516 Appellate Division — Second Department. [Rule 1

justification, each surety must specifically state what property is
owned by him, giving a brief description thereof, and also state
the value of the same and what, if any, liens or encumbrances
there are on such property, with a brief description of the nature
and amount of such lien.

Kings County, March 4, 1909.

Almet F. Jenks,
John Woodwaed,
William J. Gayijor,
Joseph A. Buee,
Adelbeet p. Rich,
Justices of the Appellate Division of the
Supreme Court in the Second
Judicial Department.

TO ATTORNEYS.

A printed copy of the appeal papers shall be filed in the office
of the Clerk of the Appellate Division within twenty days after
an appeal has been taken, etc. The copy so filed shall be certified
by the proper clerk, or be stipulated by the parties to be true
copies of the original. (Rule 41, General Rules of Practice.)

This shall be done before an appeal shall be placed upon the
calendar. (Sec. 1353, Code Civ. Pro.)

Attorneys should also notice that Rule 41 requires three copies
of the appeal papers to be served within the same time upon the
opposite party.

!Notes of issue shall be filed in the clerk's ofiice eight days before
the commencement of the court at which the cause may be noticed.
(Rule 39, General Rules of Practice.)

Except that appeals from orders, to be heard as nonenumerated
motions, may, after papers have been filed and served in com-
pliance with General Rule 41, be added to the nonenumerated'
calendar upon filing a note of issue with the clerk, five days before
argument, and be noticed for argument for any motion day, upon
the usual notice of eight days.

Notes of issue shall specify whether the appeal is to be placed
upon the nonenumerated or general calendar, and where a ])refer-
ence is desired, the note of issue must state the claim for prefer-

Bnle 2] Special Eules of Practice. 517

ence as provided in section 793 of the Code, and indicate the class
to which it belongs. (Rules 1 and 3, Third Dept.)

Attention is also called to Special Eule 6 of this department,
requiring notice to the clerk if a party desires the case put upon
the day calendar when reached in its order upon the general
calendar.

Thirteen (13) copies of the appeal papers and points must be
delivered to the clerk before the commencement of the argument.

Motion days. — The first day of each term, and every Friday
thereof, are motion days.

Hours of Court. — From 10 o'clock a. m. to 2 o'clock p. m.
except Mondays. Mondays, from 2 o'clock p. m. to 6 o'clock p. m.
No coui-t on Saturdays.

Telephones. — Hudson Eiver, Number 483; Home, Number
483.

Third Department.
RULE I.

Appeals from orders to be heard as nonenumerated motions,
may, after papers have been filed and served in compliance with
General Eule 41, be noticed for argument for any motion day,
and be placed upon the nonenumerated calendar, upon the attor-
ney or party intending to move such appeal for argument filing
with the clerk a note of issue, specifying the date of the service
of the notice of appeal, and stating that the case is to be put upon
the nonenumerated calendar. Such appeals, and also motions,
will be heard at the opening of the court or upon any succeeding
Tuesday during the term.

RULE n.

If all nonenumerated motions and appeals from orders which
are ready for hearing on the first day of the term shall not be
heard upon that day, the hearing of them will be continued from
day to day until they shall all be disposed of before the general
calendar shall be taken up, unless otherwise ordered by the court.

518 Appellate Division — Thikd Depaetment. [Rule 6

RULE in.

A party who desires to have a cause heard as a preferred cause
must in his note of issue state his claim for preference as pro-
vided in section 7&3 of the Code, or if an order giving the cause
a preference has been made under that section, the note of issue
must be accompanied with a copy of such order. The clerk, in
making up the calendar, shall place such preferred causes at the
head of the general calendar, indicating that they are preferred,
and the class to which they belong.

RULE IV.

Appeals in criminal cases, brought after making up the calen-
dar, or too late to be placed thereon, may be put upon the calendar
at any time and brought to a hearing as preferred cases upon a
notice of ten days to the adverse party, as provided by section 535
of the Criminal Code. A note of issue, with a statement of the
day on which the cause is noticed to be heard, must be filed with
the clerk at least five days before such date. The clerk shall place
such causes on the calendar for the day for which they are so
noticed, or upon which the cause shall be ordered by the court,
or stipulated by the parties to be heard.

RULE V.

The clerk shall prepare at 1 o'clock p. m. of each day for the
next day a calendar of such number of causes as the court shall
direct, including those undisposed of on the then day calendar,
taken from the general calendar in their order thereon, subject
to the provisions of Eule VI. Causes not disposed of on any day
shall be placed at the head of the calendar for the next day until
disposed of.

RULE VI.

Excepting the first twenty causes on the general calendar, no
cause shall be placed on the day calendar, unless written notice
is served on the clerk, by the attorney on one side or the other,
that such cause is intended to be moved when called in its regular
order, or imless it has been reserved for that day, by stipulation
filed with the clerk. ISTone of the first twenty causes on the gen-

Eule 9] Special Eules of Practice. 519

«ral calendar shall be reserved by stipulation without consent of
the court, upon application made on the first day of the term, and
any cause not placed on the day calendar in its order on the gen-
eral calendar, will be regarded as passed for the term, unless put
over, or reserved as above provided.

RULE vn.

Causes must be argued when reached on the calendar. No ex-
change of ca^s will be allowed unless both cases are ready for
argument, and counsel intend to argue them at the same term at
which the exchange be made, and when causes are exchanged,
each shall occupy the proper position of the other in date, on the
same and every other subsequent calendar until heard. A pre-
ferred cause exchanged for one not preferred, or set down, for a
particular day, shall lose its preference, and no case will be called
more than once during the same term, ixnless it shall have been
reserved or postponed with the consent of the court.

RULE vm.

If both parties desire to submit, they may do so at any time
during the term by delivering to the clerk the cases and points
required by General Rule 43, and either party may submit his
points when the case is called, if the other party desires to argue
orally on his part.

RULE IX.

The. appellant, in addition to the statement required by Rule
41, shall prefix to his points a brief statement, showing in what
court or before what officer or tribunal the action or proceeding
was instituted, the relief sought, the defense or ground of oppo-
sition thereto, the result in the court or before the officer or tri-
bunal in which the action or proceeding was commenced, and how
the cause was brought into this court. If any opinion written in
the case has been previously reported, he shall also state where it
was so reported. If any opinion has been vmtten which has not
been reported, the party whose duty it is to furnish the papers
shall submit a printed copy of such opinion to the court either
in the record or with his brief.

620 Appellate Division — Thied Depabtment. [Rule 14

RULE X.

The counsel who argue a case shall indorse on the papers de-
livered to the justices their names and places of residence.

Every cause shall be deemed to be submitted to any justice,
qualified to sit therein, who may be absent at the time of the argu-
ment, unless objection to such submission by counsel arguing such
cause be then made.

RULE XI.

notions for reargument will only be heard on notice to the ad-
verse party, stating briefly the ground upon which a reargument
is asked, and such motion must be submitted on printed briefs
stating concisely the points supposed to have been overlooked or
misapprehended by the court with proper reference to the par-
ticular portion of the case, and the authorities relied upon.

RULE XII.

If a cause is passed without being reserved, or put over by con-
sent of the court, it shall be entered on all subsequent calendars
as of the date when passed, and the party placing it on the calen-
dar for a sTibsequent term, must state in his note of issue the date
when it was passed. If he omits to do so, whereby the cause re^
tains its priority on the calendar, the covtrt, on the application of
the adverse party, or on its own motion, may strike the cause
from the calendar.

RULE xm.

Whenever a Trial Term or Special Term of the Supreme
Court, in this department, shall be designated to be held or
opened on a day which is provided by law to be observed as a
legal holiday, such court shall be opened and held on the next
succeeding secular day.

RULE XIV.

At least twenty days before a term of the Appellate Division
at which a cause may be noticed for argument the appellant, or
relator, shall serve upon the attorney for the respondent three
printed copies of his brief upon which he intends to rely upon
the argument, with a reference to all the authorities which he

Eule 15] Special Eules of Practice. 521

intends to cite to the court. At least eight days before said term,
the respondent shall serve upon the attorney for the appellant or
relator, three printed copies of his brief with a reference to all
the authorities which he intends to cite to the court. If the
appeJlaut, or relator, desires to present a brief in reply he may
serve the same upon the attorney for the respondent at least three
days before said term. 'Service iinder this rule may be made
either personally or by mail, but service by mail shall not extend
the time within which the answering brief may be served. This
rule shall not apply to appeals from orders upon non enumerated
motions, nor to causes in which the time to file papers on appeal,
shall under General Eule 41, expire withiu twenty days of the
commencement of a term.

RULE XV.

Oandidates for admission to the bar may be siwom in at the
opening of the court on any Thursiday of the term, providing the
necessary papers therefor shall have been filed with the clerk of
the court on or before the Tuesday preceding.

Fourth Department.

TO ATTORNEYS.

A printed copy of the appeal papers shall be filed in the office
of the clerk of the Appellate Division within twenty days after
an appeal has been taken, etc. The copy so filed shall be certified
by the proper clerk, or be stipulated by the parties to be true
copies of the original. (Eule 41, General Eules of Practice.)

This shall be done before an appeal shall be placed upon the
calendar. (iSec. 1353, Code Civ. Pro.)

Attorneys should also notice that Eule 41 requires three copies
of the appeal papers to be served within the same time upon the
opposite party.

Notes of issue shall be filed in the clerk's offiice eight days
before the commencement of the court at which the cause may be
noticed. (Rule 39, General Eule© of Practice.)

522 Appellate Division — Foueth Depabtment. [Rule 2

Except that appeals from orders, to be heard as nonenumerated
motions, may, after papers have been filed and served in com-
pliance with General Rule 41, be added to the nonenumerated
calendar upon filing a note of issue with the elerk five days
before argument, and be noticed for argument for any motion
day, upon the usual notice of eig'ht days.

Notes of isisue shall specify whether the api>eal is to be placed
upon the nonenumerated or general calendar, and where a pref-
erence is desired, the note of issue must state the claim for
preference as provided in section 793 of the Code, and indicate
the class to which it belongs. (Rules 1 and 3, Third Dept.)

Attention is also called to Special Rule 6, of this department,
requiring notice to the clerk if a party desires the case put upon
the day calendar when reached in its order upon the general
calendar.

Thirteen copies of the appeal papers and points must be
delivered to the clerk before the commencement of the argument.

CALENDAR RULES.
RUIE I.
Notes of Issue in Appeals from Oiders.
No appeal from an order will be heard' unless it is placed on
the nonenumerated calendar. The attorney or party intending
to move such an appeal for argument shall, at least eight days
before the time of the making up of the calendar, file with the
clerk a note of issue., specifying the date of the service of the
notice of appeal, and stating 'that the case is to be put on the
nonenumerated calendar. ISTo case shall be put upon the enumer-
ated or nonenumerated calendar until the papers required by
General Rule 41 shall have been filed with the clerk.

RULE n.

Notes of Issue in Preferred Cases.

A party who desires to have a ease heard as a preferred case,
must, in his note of issue, state his claim for preference, as pro-
vided in section 793 of the Code; or if an order giving the case
a preference has been made under that section, the note of issue
must be accompanied with a copy of such order. The clerk in
making up the calendar shall place such preferred cases at the

Kule 6] Special Eules of Practice. 523

head of the general calendar, indicating that they are preferred,
and the class to which they belong.

UTILE in.

New Calendar, When to Be Made. Passed Cases.
When a netw calendar is ordered by the court, the clerk shall
place thereon all cases which remain undisposed of on the former
calendar, and all other cases in which notes of issue have been
filed in his office. If a ease shall have been passed, it shall go
upon the calendar as of the time when it was passed, and the
fact that it was passed shall be stated upon the calendar.

RULE IV.
Criminal Cases May be put upon the Calendar at any Time.

Appeals in criminal cases, brought after making up the cal-
endar, or too late to he placel upon the calendar, may be put upon
the calendar at any time, and brought on for hearing as pre-
ferred cases, upon a notice of ten days to the adverse party, as
provided in section 535 of the Criminal 'Code. A note of issue
must be filed with the clerk at least five days before the day on
which the case is to be heard, and he shall put the same on the
calendar for the day on which it shall be noticed, or upon which it
shall be ordered by the court, or stipulated by the parties to be
heard.

RULE V.
Day Calendar to be Made by Clerk.

The clerk shall prepare at 3 o'clock, p. m., of each day a
day calendar for the next day, to consist of ten cases or such other
number as the court shall direct, including those undisposed of
on the then day calendar. They shall be taken from the general
calendar in their order thereon, subject to the provisions of Rule
VI. Cases not disposed of on any day shall be placed at the head
of the calendar for the next day, until disposed of.

RULE VI.
Notice to Clerk no Longer Necessary, etc.

It shall not be necessary to notice cases for the day calendar.
Any case on the general calendar may, by stipulation of the par-
ties, filed with the clerk at any time before the case is placed upon

524 Appellate Division — Foueth Department. [Rule 8

the day calendar, be reserved for a day certain, except that no
stipulation shall be made or filed reserving any of the first fifty
cases on the general calendar beyond the first week. Cases so re-
served for a day certain shall not be placed upon the day calendar
for any day prior to that to which they have been so reserved.
No case shall be put upon the day calendar unless the papers and
points have been delivered to and filed with the clerk. Cases
which cannot be placed upon the day calendar in their regular
order or at the time to which they have been reserved by reason of
nonfiling of the papers and points, will be regarded as passed for
the term.

RULE vn.

Clerk to Telegraph Day Calendar.

The clerk shall, on each day during the term, immediately on
making up the day calendar, telegraph the numbers of the cases
upon it to the county clerks at Buffalo, Syracuse, Utica, Oswego,
Lockport, Auburn, and Watertown, and the county clerks receiv-
ing said telegrams are directed to post or bulletin the same in
such manner as shall be most convenient for attorneys and others
desiring to see the same, and also to procure the publication of
such telegrams in the newspapers of their respective cities.

RULE VIII.
, Reservations and Submissions.

Cases will not be received upon submission until reached in
the regular call of the calendar. No reservation will be made of
any of the first eight cases upon the general calendar, unless on
account of sickness, or an engagement of counsel elsewhere, in
the actual trial or argument of another case in a court of record,
commenced before the term of this court, or other inevitable neces-
sity to be shown by affidavit. Other cases may be reserved upon
reasonable cause shown; or by stipulation of parties, filed with
the clerk, but no case shall be so reserved by stipulation after the
same has been placed upon the day calendar.

Cases reserved for a day certain by stipulation, when in order
to be called, have priority among each other according to their
number on the calendar, and shall follow next in order the undis-
posed of cases of the calendar for the day previous. Default may

Kuie 9] Special Rules of Practice. 525

be taken in them, and they will, if passed, be put upon future
calendars as if passed in the regular call. Every cause shall be
deemed to be submitted to such justice as may be absent from
the court at the time of the argument unless objection to such
submission by counsel arguing the cause be then made.

EULE IX.
Papers to be Filed with the Clerk and Exchange of Briefs.

Within fifteen days after the service of the printed papers re-
quired to be served by General Rule 41 in enumerated motions,
the party whose duty it is to furnish those papers shall file with
the clerk sixteen printed copies of the papers and sixteen printed
copies of his brief and the points upon which he intends to rely
upon the argument, with a reference to all the authorities which
he intends to cite to the court ; and shall, at the same time, serve
on the attorney or counsel for the other party three copies thereof.
Within seven days thereafter the other party shall file with the
clerk sixteen printed copies of his brief and points, with a refer-
ence to all his authorities, and serve on the attorney or counsel
for the moving party, three printed copies thereof. If either
party shall fail to serve and file his brief and points, as herein
required, he shall not be heard upon the argument, and judgment
may be entered against him, as upon default, on application to
the court on any motion day upon three days' notice.

If the moving party desires to serve an answering brief, he
shall file with the clerk sixteen printed copies thereof, and serve
upen his opponent three printed copies, within five days after the
receipt of his opponent's brief. He shall not include in his
answering brief, any matter which is not in the nature of an
anewer to the brief to which it purports to reply. No supple-
mental briefs will be allowed unless requested by the court. This
rule shall not apply to appeals from nonenumerated motions.
It shall apply to all cases which shall be put upon the day cal-
endar upon and after the first day of March, 1896. Upon the
argument of all cases before that time, the moving party shall
furnish to the clerk sixteen copies of the case, and each party shall
furnish to the clerk sixteen copies of his brief. The clerk shall
distribute the cases and briefs as prescribed in General Rule 43,
and he shall, in addition, deliver one copy of each to the Librarian

526 Appellate Division — Foueth Depaetment. [Rule 12

of the Law Library in Buffalo, Rochester and Syracuse, to be
bound and indexed for reference.

RULE X.
Information, Attorneys shall Prefix in Brief.

The moving party, in addition to the statement required in
General Rule 41, shall prefix to his points a brief statement,
showing when and in what court or before what officer or tribunal
the action or proceeding was instituted, the relief sought, the de-
fense or grounds of opposition thereto, the result in the court or
before the officer or tribunal in which the action or proceeding
was commenced, the proceedings subsequent to the first decision,
and how the case was brought into this court. If any opinion
written in the case has been previously reported, he shall also
state where it was so reported. If any opinion has been written
which has not been reported, the party whose duty it is to fur-
nish the papers shall submit a printed copy of such opinion to the
court, either in the record or with his brief.

RULE XI.
Indorsement on Brief.

The counsel who argues the case shall indorse on his brief, de-
livered to the judges, his name and place of residence.

RULE XII.

Exchange of Cases.

No exchange of cases will be allowed unless both cases are
ready for argument, and counsel intend to argue them at the same
term at which the exchange is made; and when cases are ex-
changed, each shall occupy the proper position of the other in
date, on the same and every subsequent calendar, until heard. A
preferred case exchanged for one not preferred, or set down for
a particular day, shall lose its preference, and no case will be
called more than once during the same term, unless it shall have
been reserved or postponed Mdth the consent of the court.

Kule 14] Special Kules of Practice. 527!

RULE xin.

Hearing of Nonenumerated Motions and Appeals from Orders.

Argument of nonenumerated motions and appeals from orders
■will be heard only upon the first day or the third Friday of a
term. ITo stipulation reserving the argument of such appeals to
the third Friday will be honored unless such stipulation be filed
with the clerk not later than Friday preceding the opening day of
the term. If all nonenumerated motions and appeals from orders
which are ready for hearing on the first day of the term or on the
third Friday shall not be heard upon such day, the hearing will be
continued from day to day until they shall all be disposed of, be-
fore the general calendar shall be taken up, unless otherwise
ordered by the court. Original motions in this court may be
noticed for the first day of the term, or for the Friday in any
subsequent week of the term.

RULE XIV.

Motions for Reargument.

Motions for reargument will be heard only on notice to the
adverse party, stating briefly the ground upon which a reargu-
ment is asked, and such motions must be submitted upon printed
briefs, stating concisely the points supposed to have been over-
looked or misapprehended by the court, with proper reference to
the particular portion of the case and the authorities relied on;
and a copy of the opinion delivered by the court in deciding the
case; and counsel will not be heard orally.

RULE XV.

Remittitur.

The remittitur to be transmitted pursuant to section 1355 of
the Code shall contain a copy of the judgment or order of this
court, and the record which has been filed with the clerk, and
shall be sealed with the seal and signed by the clerk of this court.

RULE XVI.
OfScial Examiners of Title.

An official examiner of title, before he is licensed and admitted
to practice as such, must file the bond required by Eule 3 of the

528 Appellate Division ■ — Foubth Depaetment. [Rule 3

Court of Appeals, relating to applications to practice as offiscial
examiners of title, approved by the presiding justice of the Ap-
pellate Division of the Supreme Court in this department. In
case of the death or insolvency, of either of the sureties, an official
examiner of title must forthwith file a new bond, with new sure-
ties, fully complying with said rule. Each applicant for a
license as an official examiner of title must also produce such
evidence of character and as to his standing in regard to financial
transactions as the Appellate Division of this department may
require. (Adopted May 27, 1909.)

New York Surrogate's Riiles.

RULE I.

A special motion calendar will be called on each Tuesday and
Friday at 10.30 o'clock, a. m., except during the month of August.
No calendar will be called during that month.

RULE n.

To entitle a motion or proceeding to be entered upon the
motion calendar, proof of service of all orders, citations, summons
and other papers on which the motion or application shall be
made, must be furnished to the clerk of this court at or before 1
o'clock on the day preceding the motion day. No motion shall be
adjourned without showing to the satisfaction of the surrogate
legal grounds therefor, except upon the return day thereof, when
it may be adjourned for a week on filing with the olerk the written
consent of the parties.

RULE in.

'No mandate issued out of this court shall be deemed duly
served unless copies of the petition or other paper or papers upon
which it shall be issued, and upon which relief is sought, shall be
served with it, except the following:

1. Citation to attend probate.

2. Citation to revoke probate.

Eule 4] Special Rules of Peactice. 529

3. Citation on application for administration.

4. Citation for intermediate account.

5. Citation to attend judicial settlement of account.

6. Citation to temporary administrator to account.

1. Citation to principal in a bond to give new sureties in place
of sureties who apply to be released.

8. Order to temporary administrator to make deposit.

9. Order to executor to appear and qualify.

10. Order requiring the executor or administrator to file in-

ventory.

11. Why an account should not be made on surrogate's motion.

RULE IV.

A party seeking to contest the probate of a last will and testa-
ment must file a written appearance with the clerk of this court,
together with a written and verified answer, containing a concise
statement of the grounds of his objection to such probate, and any
facts he may allege tending to establish a want of jurisdiction of
the court to hear such probate. In case such jurisdiction shall be
denied or the right of any objecting party to appear and contest
shall be questioned, the court will first hear and pass upon the
question of jurisdiction, or the status of the contestant, unless,
for the convenience of the parties or the court, it shall be ordered
otherwise. When a contestant files with the surrogate the notice
provided for by section 2618 of the Code of Civil Procedure, re-
quiring the examination of all the subscribing witnesses to a will,
or any other material witness, he must present with such notice
an affidavit showing the materiality of the testimony of the wit-
nesses or witness sought to be examined, and an order requiring
the production by the proponent of such witnesses or witness. A
copy of such order, if the same shall be signed, must be immedi-
ately served upon the proponent or his attorney.

In all cases of contests in probate proceedings, the proponents
shall, within five days after objections to the probate are filed,
present a verified petition for and procure and enter an order
directing notice of the time and place of hearing of such objec-
tions to be given, and prescribing the manner of giving such
notice, to all persons in being who would take any interest in any

530 New Yoek Sueeogate's Oouet. [Rule 6

property under the provisions of the will, and to the executor or
executors, trustee or trustees named therein, if any, who have not
appeared in the proceeding, as required by section 2617 of the
Code, and such petition shall contain the names and addresses of
such parties, and state whether any, and which of them, are
infants or of unsound mind. In case the proponents shall not
present such petition and enter such order within the time afore-
said, such petition may be presented and order entered by or on
behalf of any party or parties interested in the estate.

Proofs of service of such notices must be filed with the probate
clerk at least four days before the date named therein for such
hearing.

In probate proceedings, when all parties in interest have waived
the service of citation, notice of at least two days must be given
to the probate clerk before the testimony of the subscribing wit-
nesses will be taken.

The will should be filed with petition for probate, unless upon
good cause shown by affidavit the surrogate dispenses therewith,
in which case it must be filed at least two days before the return
day of the citation.

In all cases a copy of the will must be filed with the petition.

RULE V.

Wherever a party shall put in issue on probate the validity,
construction, or the effect of any disposition of personal property
under section 262'4: of the Code, if it shall appear that all persons
interested in such construction are not before the Court, the deter-
mination of such question shall be suspended until such persons
shall be made parties; and the executor named in the will shall
not be held to represent the legatees therein for the purpose of
such construction.

RULE VI.

Whenever any person shall appear in support of the will pro-
pounded under section 2617 of the Code, such person shall not
thereby become entitled to recover any costs on the probate of said
will unless it shall appear to the satisfaction of the court that the
interest of such person was not sufficiently represented and prose-
cuted by the executor named in the will and his counsel.

Eule 9] Special Kules of Peactice. 531

RULE vn.

On an accounting by an executor, administrator, guardian or
trustee, which may be contested, any party interested, or a creditor
desiring to contest the account, shall file specific objections thereto
in writing, and serve a copy thereof upon the accounting party,
or upon his attorney in case he shall have appeared by attorney,
within eight days after the filing of the account in the office of
the clerk of the court, where the accounting is a compulsory one,
and within eight days after the return of the citation, where the
accounting is a voluntary one, or within such further or other
time in either case as shall be allowed by the surrogate; and the
contest of such account shall be confined to the items or matter
so objected to. If it shall appear to the satisfaction of the court,
by affidavit or petition, that an examination of the accounting
party will be necessary to enable the contesting party to interpose
his objections, such examination may be ordered by the court for
that purpose.

KULE vm.

When a referee's report shall be filed, together with the testi-
mony taken before him, said report shall be confirmed as of
course, unless exceptions thereto shall be filed by any party inter-
ested in the accounting or proceeding within eight days after a
written notice of such filing and a copy of such report shall have
been served upon the opposing party ; and in case exceptions shall
be so filed, any party may bring on the hearing of said exceptions
on eight days' notice on any stated motion day of said surrogate's
court.

RTTLE IX.

All orders and decrees to be entered in litigated motions, unless
settled by consent, must be noticed for settlement, and a copy of
the proposed order served at least one day before the same shall
be presented for settlement at the surrogate's chambers, and all
decrees to be entered in contested probate or accounting proceed-
ings shall be settled at chambers, on two days' notice, and the
service of a copy of the proposed decree ; and no such order or
decree will be signed in the absence of the opposing attorney,
unless proof or admission of such service shall be presented on.
such settlement.

533 New Yoek Suekogate's Couet. [Eule 10

KULE X.

ISTo special guardian to represent the interests of an infant in
any proceeding in said surrogate's court will be appointed on the
nomination of a proponent or the accounting party, or his attor-
ney, or upon the application of a person having an interest adverse
to that of the infant. To authorize the appointment of a person
as a special guardian on the application of an infant or otherwise
in a proceeding in this court, or to entitle a general guardian of
such infant to appear for him in such proceeding, it must appear
that such person or such general guardian, is competent to protect
the rights of the infant, and that he has no interest adverse to that
of the infant, and is not connected in business with the attorney
or counsel of or any party to the proceeding. Where the appli-
cation for the appointment of a special guardian is made by
another than the infant, or where the general guardian appears
in behalf of the infant, it must appear that such applicant or
..general guardian has no interest adverse to that of the infant.
ISTo party to a proceeding will be appointed special guardian of
;any other party thereto. If such applicant or general guardian
is entitled to share in the distribution of the estate or fund in
which the infant is interested, the nature of the interest of such
applicant or general guardian must be disclosed. The applica-
tion for the appointment of a special guardian as well as the
appearance filed by a general guardian of a minor must, in every
instance, disclose the name and residence and relationship to the
infant of the person with whom the infant is residing, whether or
uot he has a parent living, and if a parent is living, whether or
not such parent has knowledge of and approves such application
or appearance; and such knowledge and approval must be shown
by the affidavit of such parent. If the infant has no parent living,
like knowledge and approval of such application or appearance by
the person with whom the infant resides must be shown in like
manner. Where such application is made by an infant over the
age of 14 years, his petition must show and be accompanied by the
aflidavit of the parent (in case the latter has an interest adverse
to that of the infant), showing, in addition to such knowledge
aforesaid, that such parent has not influenced the infant in the
choice of the guardian.

Eule 15] Special Kules of Peactice. 533

RULE XI.

In any proceeding for a judicial settlement of the account,
-wherein a special guardian shall be appointed or a general
guardian shall appear to protect the interests of an infant party
to such accounting, no decree will be entered as upon default
against such infant, but such decree shall be so entered only on
the written report of the guardian appearing for such infant that
he has carefully examined the account and finds it correct, and
upon two days' notice to the guardian of the settlement thereof.

RULE XII.

Whenever an infant interested in any proceeding in said sur-
rogate's court has a general guardian no decree will be entered
without appointing a special guardian to represent said infant's
interest therein, unless such general guardian shall file his appear-
ance in writing and his affidavit of no adverse interest, as required
by Eule 10, with the clerk of said surrogate's court.

RULE xin.

"No costs will be allowed to the petitioner who takes proceedings
to compel the filing of an inventory by an executor or adminis-
trator, unless such executor or administrator shall have unreason-
ably delayed to make and file such inventory after having been
duly requested to do so by or in behalf of the petitioner.

RULE XIV.

All petitions and answers in this court, except as otherwise
expressly prescribed by statute, shall be in writing and contain
a plain and concise statement of the facts constituting the claim,
objection or defense, and a demand of the decree, order or other
relief to which the party supposes himself to be entitled, which
petition and answer are required to be verified.

RULE XV.

The deposit of securities for the payment of money belonging
to an estate or fund, as provided in section 2595 of the Code of
'Civil Procedure, for the purpose of reducing the bond of an.

634 New Yoek Sueeogate's Couet. [Rule 17

executor, administrator or other trustee, shall be made under the
order of the suiTogate in the United .States Trust Company, of
the 'New York Life Insurance and Trust Company, Farmers'
Loan and Trust Company, the Union Trust Company, the Mer-
cantile Trust Company, the Central Trust Company of New
York, State Trust Company and Knickerbocker Trust 'Company,
subject to the order of the trustee, to be countersigned by the
surrogate, or the special order of the surrogate, and not otherwise.

RULE XVI.

The respondent on any appeal from a decree or order of this
court may, within ten days after the filing of the undertaking
required on such appeal, serve upon the attorney for the appellant
a written notice that he excepts to the suiEciency of the sureties
therein; whereupon and within ten days thereafter such sureties,
or other sureties in a new undertaking to the same effect, must
justify before the surrogate or the chief clerk on five days' notice
of such justification, to be served upon the respondent's attorney,
by each surety appearing in person before said surrogate or chief
clerk and submitting to an examination, on oath, on the part of
the appellant, touching his sufficiency. If such sureties shall be
found sufficient, said surrogate or chief clerk will indorse an
allowance thereof upon the undertaking or a copy thereof, and a
notice of such allowance shall be served upon the attorney for
the exceptant; and the effect of any failure to so justify and
procure such allowance shall be to avoid the undertaking.

RULE xvn.

Wherever a bond with sureties shall be executed by an executor,
administrator, guardian, or other trustee, any person interested
in the estate or in behalf of such guardian may apply to the surro-
gate for an order requiring the sureties in said bond to appear
before him, or his chief clerk, and submit to an examination under
"oath as to their sufficiency as such sureties. If it shall appear
to the satisfaction of the surrogate that such examination is neces-
sary, he will make an order, prescribing the time and place where
such examination shall take place, a copy of which order shall be
served upon such executor, administrator, guardian or trustee, at
least five days before the time fixed for such examination. If on

Hule 20] Special Rules of Peactice. 535

such examination tlie surrogate shall be satisified of the sufficiency
■of such surety he "will indorse his approval upon the bond, or a
copy thereof; and in case such surety on such examination shall
not, in the opinion of the surrogate, be sufficient, the surrogate
•will make an order requiring the substitution of new sureties,
Tvithin five days after the service of a copy of said order upon
the executor, administrator, guardian or other trustee, or his attor-
ney, if he shall have appeared by attorney on such examination.

RULE xvm.

ITo document, petition, affidavit or paper .will be considered on
the determination of any motion by the surrogate, except such as
shall bear the regular file mark of the surrogate, his chief clerk,
or the clerk to the Surrogate's Court, except such as shall form
part of the testimony ot documentary evidence, or ex'hibits before
a referee, and then they must bear the mark as an exhibit of -the
Teferee. 'So paper will be received for consideration iby the
surrogate, or for filing in his office, unless it is of the weight
prescribed ^by Eule 19 of the General Rules of Practice, and con-
forms in all other respects, as far as practicable, to the require-
ments of said rule. And no paper will be received by the clerk
of the court after argument or submission of a matter eoibsequent
to the day fixed by the surrogate for the receipt of the same.

RULE XIX.

A proposed order or decree must not be attached to any other
paper. Upon the back of every such order or decree, and upon
every set or collection of papers .attached together, and upon all
single papers separately presented, there must conspicuously
appear the name of the decedent or of the infant to whose estate
the proceeding relates, the nature of each order, decree, or other
paper, or set of papers, and the name and address of the attorney
presenting the same.

RULE XX.

Ko record or paper on file in this court will be intrusted to
the custody of the attorneys or parties, except for the purpose of
proper examination, in the office where they are deposited; and
if any such document or paper shall be needed before any referee

536 New Yoek Sueeoqate's Couet. [Rule 22

appointed by this court, tlie same shall be intrusted to a clerk or
messenger of this court and delivered to the referee, "Who shall
execute a receipt therefor, and for its redelivery.

RULE XXI.

The surrogate, on the written certificate of the person appointed
under section 2844 of the Code, to examine the inventory and
accounts of guardians filed in said surrogate's office, that a gen-
eral guardian has omitted to file such inventory or account, or
the affidavit required by section '2843, or that the interesit of the
ward requires that the guardian should render a more satisfac-
tory inventory or account, will make an order requiring the
guardian to supply the deficiency. Whenever it shall appear by
the certificate of said person that the guardian has failed to
comply with such order within three months after its due service
upon him, or that there is reason to believe that sufficient cause
exists for the guardian's removal, the surrogate will appoint a
special guardian of the ward for the purpose of filing a petition
in his behalf and prosecuting the necessary proceedings for the
removal of such guardian.

RTJLE XXn.

Wbenever a party to a decree shall deem himself entitled to
costs, the same will be considered and determined by the surrogate
on two days' notice of adjustment, to be served upon the opposing
party, with the items of costs and disbursements to which 'the
party may deem himself entitled at the time of the settlement of
the decree, which disbursements shall be duly verified, both as to
their amount and necessity, the disbm-sements for referee and
stenographer's fees being sustained by their affidavits or detailed
proof ; and at the same time, and on like notice, the surrogate witt
pass upon any additional allowance to be made to an executor,
administrator, guardian or testamentary trustee, upon a judicial
settlement of his account; which notice of adjustment and allow-
ance shall be accompanied by an affidavit setting forth the number
of days necessarily occupied in the hearing or trial, the number
necessarily occupied in preparing the account for settlement, and
in the preparation for the trial, the time occupied on each day in
the rendition of the services, and their nature and extent in detail.

Rule 25] Special Eules of Peacticb. 537

In case sucli trial shall have heen had before a referee, the time
necessarily occupied in such trial before him may be shown by a
certificate of such referee. The affidavit as to disibursements, time
engaged in trial, and in preparing the account and for trial, may
be controverted by affidavit.

RULE xxni.

All motions for reargument must be submitted on papers,
showing clearly that some question decisive of the case, and which
was presented by counsel upon the argument, has been overlooked
by the court ; or that the decision is inconsistent with some statute,
or with a controlling decision to which, through the neglect or
inadvertence of counsel, the attention of the court was not drawn-

RULE XXIV.

1. Every proposed decree must be accompanied by a copy of
the will in the case of an accounting of an executor or trustee,
and in every case by an affidavit of regularity, setting forth the
necessary jurisdictional facts. A copy of the form of the affidavit
required will be furnished by the clerk of the court.

2. Every consent, notice of settlement or admission of service,
must be upon a separate sheet of paper annexed to the order or
decree to which it relates, and not upon the body or cover thereof.

3. When a petition for a voluntary accoimting is presented, the
account to which it relates must be filed therewith.

4. Upon an accounting, wherein there is no general or special
guardian, no decree will be entered until the account has been
audited by a referee appointed for that purpose, except upon the
consent of all the parties.

RULE XXV.

1. Upon the filing of the appraiser's report in a transfer tax
proceeding the surrogate will immediately enter the order de-
termining the value of the property and the amount of tax. The
matter will not appear on the calendar at this stage, nor will the
court then consider objections to the report.

2. A party having objections to the report, or order entered
thereupon, may, within sixty days, file a notice of appeal. Said
notice to be served upon all parties appearing before the ap-

538 Kings County — Supreme Couet. [Rule 5

praiser, and proof of service to be filed with the clerk, with the
notice of appeal. Thereupon the proceeding will be placed upon
the calendar for the next regular motion day. This notice must
specify the grounds of objection,

3. A special guardian will be appointed to protect the interests
of infants upon the return of the appraiser's notice, if it appears
that their rights are involved and they are not otherwise ade-
quately represented.

KINGS COUNTY — SUPREME COURT.

Calendar Rules of Trial Term.

EULE I.

Any cause may be set down for a day by stipulation filed with
the calendar clerk before it appears on the day calendar, except
that it may not be advanced out of its order in that way. Causes
marked " off " on the call of the day calendar may be set down for
a day of any subsequent term only, by a stipulation or a five days'
notice filed with the said clerk.

RULE n.

Causes will not be set down for days upon the call of the day
calendar. The answer must be " ready " or " off."

RUIE in.

The first day a cause is on the day calendar it wiU be held for
that day if marked " ready."

RULE IV.

The court will take notice of engagements of counsel in Kings
county upon an oral statement.

RULE V.

The court will pay no regard to engagements of counsel else-
where unless a signed written statement thereof (which need not
to be sworn to) be submitted, giving the title of the cause in
which the engagement is, in what court and part and before what
judge such cause is on trial, and when the trial commenced and

Eule 10] Special Kules of Peactice. 539

Low long it is likely to continue. Engagements in an appellate
court will not be regarded unless stated in the same way and
with equal precision.

RTTIE VI.
All other excuses or motions for delay, or for holding or post-
poning causes, must be presented by affidavit on the call of the
day calendar in order to be considered for any purpose, includ-
ing a motion in the Special Term for motions to open a default.

RULE vn.

The court will not hear oral statements or arguments in respect
of such engagements, excuses or motions, and will pass upon
such written statements or affidavits thereof by indorsements
thereon after the call of the day calendar, and file the same with,
the clerk.

RULE vin.

IN'ot more than two causes will be held ready on the day calen-
dar for one counsel in addition to the one he may be engaged in
trying in Kings county, or if he be engaged out of Kings county ;
and in all cases the counsel who is to try the cause must be
designated on the call of the day calendar if required by the
court.

RULE IX.

If a cause answered " Eeady," by the plaintiff be afterwards
answered " off " by the plaintiff, or made unduly obstructive by
the unreadiness of the plaintiff, it may be stricken from or sent
to the foot of the general calendar.

RULE X.

Any action on contract or for conversion or to recover a chattel,
which is on the calendar (having a number) may be advanced to
any day calendar by any party by filing, at least thirty days prior
thereto, with the calendar clerk, an affidavit showing that some
necessary party to the action was at the time of its commencement
a resident of Kings county, and if the plaintiff is an assignee of
the cause of action, that the assignor or some necessary defendant
was then such resident, together with proof of notice of such ad-
vancement to all parties who have appeared, or in lieu thereof the

540 Kings County — Supeeme CotrET. [Eule 4

consent of all such parties. Causes so advanced must be tried
when reached, or the preference and the right thereto under this
rule is lost unless otherwise ordered by the court.

Equity Calendar.

The equity calendar rules are identical with those of the Trial
Term, with the exception of Eule 10, which reads as follows :

RULE 10.

When time is given for the submission of briefs and papers,
they must be handed to the clerk and not sent to the justice.

KINGS COUNTY — SUPREME COURT.

Equity Calendar.

RULE L

Any cause may be set down for a day by a stipulation filed
with the calendar clerk before it appears on the day calendar,
except that it may not be advanced out of its order in that way.
Causes marked " off " on the call of the day calendar may be set
down for a day of any subsequent term only, by a stipulation or a
five days' notice filed with the said clerk.

RULE n.

Causes will not be set down for days upon the call of the day
calendar. The answer must be " ready " or " off."

RULE m.

The first day a cause is on the day calendar it will be held
for that day if marked " ready."

RULE IV.

The court will take notice of engagements of counsel in Kings
county upon an oral statement.

Eule 10] Special Kules op Peactioe. 541

KULE V.

The court will pay no regard to engagements of counsel else-
-where unless a signed written statement thereof (which need not
to be sworn to) be submitted, giving the title of the cause in which
the engagement is, in what court and part and before what judge
such cause is on trial, and when the trial commenced and how long
it is likely to continue. Engagements in an appellate court will
not be regarded unless stated in the same way and with equal
precision.

EULE VI.

All other excuses or motions for delay, or for holding or post-
poning causes, must be presented by affidavit on the call of the
day calendar in order to be considered for any purpose, includ-
ing a motion in the special term for motions to open a default.

KUiE vn.

The court will not hear oral statements or arguments in re-
spect of such engagements, excuses or motions, and will pass upon
such written statements or affidavits thereof by indorsements
thereon after the call of the day calendar, and file the same with
the clerk.

RULE vni.

ISTot more than two causes will be held ready on the day cal-
endar for one counsel in addition to the one he may be engaged
in trying in Kings county, or if he be engaged out of Kings
county; and in all cases the counsel who is to try the cause must
be designated on the call of the day calendar if required by the
court.

RULE IX.

If a cause answered '' Ready," by the plaintiff be afterward
answered " off " by the plaintiff, or made unduly obstructive by
the unreadiness of the plaintiff, it may be stricken from or sent
to the foot of the general calendar.

RULE X.

When time is given for the submission of briefs and papers,
they must be handed to the clerk and not sent to the justice.

542 Kings County — CotrNTT Cottet.

SPECIAL UNOFFICIAL RULE OF SPECIAL TERM FOR MOTIONS.

Undefended divorce cases shall be tried in the special term for
motions of Kings county on the first and third Fridays of each
term.

KINGS COUNTY— COUNTY COURT.

Any action upon a contract not occupying more than one hour
to try, can upon motion be set down for a day for trial. If not
tried in one hour will be sent to the foot of the calendar.

Cases will be placed upon the day calendar in their numerical
order ; ten causes will constitute the ready calendar and ten the
reserved calendar.

When a cause is reached on a day calendar, it must be tried
or go to the foot of the general calendar unless a good and valid
reason can be given to adjourn the same.

When a cause appears upon the reserve calendar, if marked
" ready," wiU be passed for the day, if marked " off " can upon
notice or stipulation be restored to the foot of the reserved cal-
endar for a day of a subsequent term.

Causes entitled to a preference, if application is granted, may
be set down for a day certain for trial after causes marked
" ready " the preceding day are disposed of; it not ready to pro-
ceed with the trial when reached shall be stricken from the day
calendar retaining its position on the general calendar as if no
preference had been ordered.

Contested foreclosures and actions triable by the court without
a jury can be set down for trial any Friday of term noticed for,
or any Friday hereafter, by filing with the calendar clerk a five
days' notice or stipulation to that effect.

Causes heretofore marked off call calendars may be restored
to reserved calendar by filing a five days' stipulation with the
clerk.

Motion and ex parte applications may be made in Part II to
the judge presiding on any day during the term.

Appeals from Magistrate's Courts will be placed on the cal-
endar of this court for the term next succeeding the allowance
thereof, in the order of their allowance.

A day calendar of such causes will be made up for the second
Friday of each term.

Rule 6] Special Rules of Peactice. 543

Where bail is not allowed a preference will be given. Day
calendar of appeals will be published.

Chambers will be held on Saturday of each week by the judges
alternately.

Rules of Practice of the Surrog-ate's Court of Kings County.

RULE I.

The Surrogate's Court is open for the' transaction of business
from 9 a. m. to 4: p. m., except Saturdays when the office closes
at noon; from July first to August thirty-first, inclusive, from
9 a. m. to 2 p. m.

Monday, Tuesday, Wednesday and Thursday are calendar
days ; the calendar will be called on those days at 10 o'clock a. m.

ETJLE n.

A party seeking to contest the probate of a will must file a
notice of appearance with the clerk of the court, together with a
verified answer.

RULE III.

In all probate proceedings a copy of a will must be filed with
the petition; and on or before the return day of the citation the
original will must be filed. The proofs of service should be re-
turned before the office closes on the day preceding the return of
the citation. Should no one appear on the call of the calendar
the proceeding will be at once adjourned to the next calendar day.

RULE IV.

All orders to be entered on litigated motions, and all decrees in
contested probate proceedings must be settled on two days' notice
to all parties appearing.

RULE V.

All exemplified copies of foreign wills must be accompanied by
a petition and order for recording the same.

RULE VI.

Principals and sureties In administration and guardianship
appointments must appear and qualify at the same time before the

644 Kings County — Sueeooate's CorET. [Rule 10

administration clerk. No bond for a sum less tHan fifty dollars
will be approved, and no bond by a surety company wbere the
penalty exceeds $5,000 will be approved unless a certificate
of the company is attached to said bond showing joint control of
the fund.

RULE vn.

No allowance will be made for infants for support or education
under section 2846, C. C. P., unless the petition shows that an
annual accounting has been properly filed or good cause is therein
shown why it has not been filed. The petition must show also
the terms of any previous order in the same estate, or, if none
has been made, that fact must be stated. Except in exceptional
cases, an allowance will be made for the period of one year only,
and the order must so provide. Where the infant is over four-
teen years of age, he must join in the petition; and when applica-
tion is made by any person other than the guardian of the prop-
erty it must be made on at least two days' notice to such guardian.

RULE VIII.

ISTo letters of administration will be issued while another appli-
cation for letters on the same estate is pending.

RULE IX.

All petitions, decrees, orders and other papers must be indorsed
with the title of the proceeding, distinctly indicating the nature of
the application, the title of estate and the name and post-office
address of attorney. A proposed order should not be attached to
any other paper.

RULE X.

In the absence of a petition by an infant over fourteen years
of age for the appointment of a special guardian in any proceed-
ing, the surrogate will appoint a special guardian upon his own
motion. No special guardian to represent the interest of an in-
fant in any proceeding will be appointed on the nomination of a
proponent or the accounting party or his attorney, or upon the ap-
plication of a person having- an interest adverse to that of the
infant. To authorize the appointment of a person as a special
guardian on the application of an infant or otherwise in a pro-

Eule 15] Special Eules of Peactice. 545

-ceeding in this court, or to entitle a general guardian of such
infant to appear for him in such proceeding, it must appear that
such person, or such general guardian, is competent to protect the
right of the infant, and that he has no interest adverse to that of
the infant, and is not connected in business with the attorney or
counsel of any party to the proceeding.

EUIE XI.

Before the making of a decree under chapter 18, title 5, Code
of Civil Procedure, an affidavit of regularity must be filed by the
attorney for the petitioner.

RULE XII.

When a petition for a voluntary accounting is presented, the
account and vouchers to which it relates must be filed therewith.

RULE xin.

Special guardians in accounting proceedings must file their
reports within eight days from the time of their appointment, ex-
cept where objections are filed, an adjournment had, or their time
to file report is extended by the surrogate. The report or an
accompanying affidavit niust state in detail the work done and the
number of days spent in its performance.

RULE XIV.

In all accounting proceedings where a notice of appearance and
demand are filed, or special guardians are appointed, two days'
notice of settlement of decree must be given unless all parties who
iave appeared consent to the entry of the decree.

RULE XV.

On an accounting by an executor, administrator, guardian, or
trustee, which may be contested, any person interested, or a credi-
tor desiring to contest the account, must file specific objections
thereto in writing. Objections to items of receipts or disburse-
ments must be verified. All vouchers and other papers must be
so arranged as to be readily placed in the document file boxes in
use in the office.
35

546 Kings 'County — Subbogate's Cotjet. [Eule 21

RULE XVI.

Referee's reports on contested accounts must conform to section
2545 of the Code of Civil Procedure.

RTJiE xvn.

On an accounting by an executor, testamentary trustee or ad-
ministrator with the will annexed, a copy of the will must accom-
pany the proposed decree.

RULE xvin.

In contested matters, making partial proof and then adjourning
to take further proof will not be permitted, but the hearing must
proceed continuously until testimony is closed.

RULE XIX.

'So allowance will be made to executors or administrators on
the judicial settlement of their accounts unless the bill of costs
contains a detailed statement of the days employed by them in
connection with the account, showing the time occupied on each
day in the rendition of the services, and their nature and extent
in detail.

RULE XX.

No record or paper on file in this court will be intrusted to the
custody of the attorneys or parties, except for the purpose of
proper examination, in the office where they are deposited; and
if any such document or paper shall be needed before any referee
appointed by this court, the same shall be intrusted to a clerk or
messenger of this court and delivered to the referee, who shall
execute a receipt therefor, and for its redelivery.

RULE XXI.

In all cases where parties consent that the surrogate may hear
and determine disputed claims against the estates of decedents
upon the judicial settlement of the accounts of executors or ad-
ministrators, as provided by section 1822 of the Code of Civil
Procedure, the attention of the court must be directed to this fact
on filing the petition for accounting in order that the matter may
be placed upon the appropriate cale: dar.

Kule 1] Special Eules of Pkactice. 547

RuiE xxn.

In cases where parties to a contested matter fail to submit
findings and decree in conformity with a decision duly made and
rendered within thirty days after the making of such decision the
surrogate will not award costs to any party.

RUIE xxin.

(Adopted September g, igog.)

Upon application for leave to compromise, the petitioner's at-
torney, if any, shall state whether or not he has become con-
cerned in the application or its subject matter at the instance of
the party with whom the compromise is proposed and whether or
not he has received or is to receive any compensation from such
party.

Rules of the City Court of the City of New York.

(Adopted in Convention, Match 21, igoy. In Effect, April i, igoy.)

RTJLE I.
Trial Terms.

Each Trial Term shall begin on the first Monday of the month
for which it is assigned, and may be continued until and including
the Friday preceding the first Monday of the ensuing month.
No Trial Term shall be held during the months of July, August
and September, except as hereinafter prescribed. The justice
assigned to the iSpecial Term during the months of July, August
and September, with a jury, or without where none is required
by the parties, may try " marine easesi," or any case in which the
defendant may, by order of a justice of this court, 'be actually
confined in jail and unable to furnish bail, and when the circum-
stances of the case are, in the judgment of said justice, such as
to demand a speedy trial in furtherance of justice, and in such
cases the justice assigned to the Special Term during those months
may hold such trial in that branch of the court.

548 New Yoek City Couet. [Kule 5

RULE II.
Special Calendai.

There shall he a special calendar to be called in Part IV only
for the trial of actions placed thereon pursuant thereto.

In actions on contract, of replevin, or for conversion, where a
note of issue has been filed and the cause noticed for trial, either
party may apply to the Special Term on two days' notice to the
adverse party for an order placing the cause on the special cal-
endar. Upon such application, if it satisfactorily appear by
affidavit and the pleadings that the trial of the action will not
occupy more than two hours and that no good reason exists why
the same should not be promptly tried, the court may, by order,
place the cause on the special calendar for trial. The order shall
specify the number of the cause on the general calendar and a
copy thereof must be filed with the calendar clerk. If the trial
shall actually occupy more than two hours, the court may, in its
discretion, send the cause to the foot of the general calendar.

RULE m.

Application for a Preference — Where Made.
Application for a preference under section 791 of the Code of
Civil Procedure must be made in Trial Term, Part I, and notice
thereof served with the notice of trial, agreeably to section Y&S.

RULE rv.

Actions for Less Than $250 — When Not Advanced.
No action brought for the recovery of less than $250, which
could have been brought in the Municipal Court of the city of
New York, will be advanced to the special calendar.

RULE V.

Advanced Causes — Order of Trial.

All actions hereafter advanced to the special calendar shall be
called and tried, or otherwise disposed of, in the order in which
the same are placed thereon, unless postponed for legal cause,
shown by affiidavLt

Kule 9] Special Rules of Practice. 549

RULE VI.
Actions Transferred from Other Courts.

In actions transferred to ttis court, by consent, from other
courts of record, the party filing the order of transfer shall file
with the clerk of this court engrossed copies of the summons and
pleadings in such action; and the clerk shall not enter the cause
on the trial calendar if the copies presented to him are not clearly
and legibly written.

RULE vn.

Pleadings Furnished to Court — Duty of Attorney.

It shall be the duty of the attorney, 'by whom the copy of the
pleadings shall be f umished for the use of the court on a trial, to
plainly designate on each pleading the part or parts thereof which
are claimed to be admitted or controverted by the succeeding
pleading.

RULE vm.

Cases in Which a New Trial is Ordered at Appellate Court.

In lieu of the pleadings in actions wherein a new trial is
granted, the party moving the case for trial must furnish the
justice with a printed copy of the appeal book, and a copy of the
opinion of the Appellate Court on whose order the case is re-
manded for the new trial.

RULE IX.
Construction of Orders Granting Allowance.
Whenever an allowance shall be granted to the plaintiff, the
order granting the same (unless expressing otherwise) shall be
construed to intend an allowance upon the recovery had, and not
upon any counterclaim pleaded by the defendant. If the allow-
ance be granted to the defendant, the order granting the same
(unless expressing otherwise) shall be construed to intend an
allowance upon the demand claimed in the complaint, except when
an affirmative judgment be given in favor of the defendant; in
which case the allowance shall be computed upon such affirmative
recovery, as well as upon the amount claimed in the complaint.

550 New Yoek City Couet. [Kule 13

RULE X.

Marine Cases.
Marine cases must be commenced (under the Code) by sum-
mons, and if the plaintiff applies for an order of arrest to accom-
pany the summons, it must be in the form and to the effect
required by section 3178. The pleadings may be oral or in writ-
ing; if oral, the clerk must enter the substance thereof in the
minutes. If a jury be demanded, the justice presiding at Special
Term may, in his discretion, transfer the action to any one of the
Trial Terms; or he may cause to be impaneled a jury for the
purpose, and try the cause at Special Term; and said tribunal
is hereby declared to be a Trial Term, for the special purpose of
considering and determining such cases.

RULE XI.

Jurisdiction.
Torts committed on board a foreign ship, on the high seas, must
be considered as having occurred within the territorial limits of
the foreign nation to which the vessel belongs; and the parties
having the ship's equipage, though actually here, are still deemed
within the foreign jurisdiction. In such case, the court, having
discretion to exercise the power, will decline jurisdiction, unless
it is made to appear either : First, that the plaintiff or defendant
has been regularly discharged from his ship by competent
authority; or, second, that either of the parties is a resident or
citizen of the United States. In the excepted cases only will
process be allowed.

RULE XII.

Special Term.
The justice assigned to the Special Term shall also attend to
the chambers business during the term to which he may be
assigned. Demurrers shall be heard and determined at Special
Term, and may be brought on for hearing upon the usual notice
of argument, and the filing of the note of issue provided for in
Eule 15.

RULE xin.

No Ex Parte Order of Reference in Supplementary Proceedings.
No ex parte order of reference will be made in supplementary
proceedings.

Eule 17] Special Kules of Peactioe. 551

RULE XIV.
Extension of Time to Answer.
No extension of time to answer for more than two days will be
granted, unless upon notice to plaintiff's attorney.

RUIE XV.
Daily Motion Calendar.
The clerk assigned to Special Term and chambers shall prepare
a motion calendar for each day of the term, other than Saturdays,
and place thereon all causes in which notes of issue have been
filed, not later than 4 p. m. of the day previous to the return day
of the motion, and furnish a copy thereof to the New York Law
Journal for publication. The justice presiding at Special Term
may add to the calendar, on a day for which it is noticed, any
motion not appearing thereon. Motions must be made returnable
at 10.30 A. M., at which hour the calendar will be called and de-
faults noted.

RUIE XVI.
Older in Supplementary Proceedings to Punish for Contempt; When

Returnable.
Orders in supplementary proceedings, to punish a judgment
debtor for contempt, shall not be made returnable in less than
three davs from the time of service thereof.

RUIE XVII.

Calendar Practice.
The clerk shall each week make up a calendar of cases from the
general calendar, which calendar or the numbers of the cases in-
cluded thereon, shall be published at least two days before the
same is called. This calendar shall be called by the justice as-
signed to Part III, Trial Term, on the Friday preceding the com-
mencement of each term, at 4 p. m., unless another day is speci-
ally fixed by him to call such calendar in the Special Term room.
Causes on such call calendar must be answered " ready " or " off."
" Eeady " will mean that the causes so answered are to be placed
upon subsequent day calendars for trial, and if the causes are
marked " off," cai;ses so answered will not again appear upon the
call calendar until the last number of said call which is marked
" ready " shall have been reached upon the day calendar for trial.

552 New York City Couet. [Kule IS

Day Calendar.

The said clerk shall make up a day calendar for each day from
the causes so marked " ready " upon the call calendar of the court,
upon which shall be placed all such causes so marked " ready "
at the previous call or remaining undisposed of from the calls
theretofore had, which day calendar shall be called in the Trial
Term room, Part III of this court, at 9.45 a. m. each day, and
three causes therefrom shall be assigned to each of the several
trial parts, except Part IV, for trial.

When a cause thus set down on the call calendar on any Friday
as " ready " appears upon the day calendar, it must be tried or
go to the foot of the general calendar, unless it appears by affi-
davit to the satisfaction of the justice calling the day calendar
that the trial cannot with justice to one of the parties proceed.
The court may then by order set the cause down for trial on
another day in the term or place the cause on the call calendar for
a subsequent call.

In a cause upon the day calendar for trial, where it shall appear
to the court by affidavit that counsel who is to try the cause is to
argue a cause on the day calendar of the Supreme Court of the
United States, or upon the day calendar of the Court of Appeals
of the State of New York, or upon the day calendar in the Ap-
pellate Division of the Supreme Court, or is actually engaged in
the trial of a cause in a court of record of the counties of New
York or Kings, the cause shall be passed for the day, or until
such argument or trial is concluded, unless the trial in which
counsel is engaged is a protracted one. In no other event shall a
cause upon the day calendar be passed for the day.

In no event shall a cause on the day calendar be passed from
day to day on account of the engagement of counsel for more than
two days. Not more than two causes shall be held " ready " on
the day calendar for one counsel, in addition to the cause in which
he is engaged, and in all causes the counsel who is to try the same
must be designated, if required by the court, on the call of the
day calendar.

EuiE xvin.

Miscellaneous — Fees Paid to the Clerk not Returnable.

Pees paid upon filing notes of issue are, so soon as they reach
the hands of the clerk, in the constructive possession of the city

Kule 20] Special Etjles op Pkactice. 553

of New York ; and it is made the official duty of that clerk to pay
them, with other lawful fees collected by virtue of this office, into
the city treasury.

RUIE XIX.

Equity Causes.

Equity causes will be placed upon the Friday call calendar on
five days' notice of trial and will be called from said call calendar
each term and must be answered " ready " or " oiF," as provided
in Eule XVII. When such causes so marked " ready " appear
upon the day calendar, pursuant to such rule, said causes shall be
assigned to the several trial parts for trial by the justice calling
the day calendar.

RTTIE XX.

Special Rules Concerning the Duties and Obligations of the Clerk of the City
Court of the City of New York.

1. The clerk, on assuming office, shall make and file, in dupli-
cate, his oath of office, one of which duplicates shall be filed in the
office of the city clerk, the other in the clerk's office of this court,
and give a bond as now prescribed by law.

2. The clerk, or, in hi^ absence, the deputy, shall make state-
ments in writing, duly verified by his oath, of all moneys re-
ceived for fees or otherwise by him as said clerk, and shall pay
into the finance department of the city of ISTew York all such
moneys so received by him for the use of or belonging to the city,
as required by law ; and these acts shall be done once in each and
every month, and a duplicate of such statements in writing, also
duly verified, shall be at the same time delivered to the chief jus-
tice of this court, or, in his absence, to the justice then presiding
at the Special Term, accompanied by a voucher from the said
finance department, showing that such money has been actually
so paid over after the auditing and approval of the monthly state-
ment by the department. All other money hereafter received or
deposited in this court in any action or proceeding, and not belong-
ing to the city of New York, shall, without delay, be specially de-
posited with the chamberlain of the city of New York; and the
matter, to which each deposit relates, particularly indicated on
the certificate of such deposit.

554 New Yoek City Couet. [Kule 21

3. On the last Monday in each and every month, the clerk or,
in his absence, the deputy clerk, shall make a full statement, in
writing, duly verified by his oath, of all moneys paid into the
court and received by him during the preceding month, by and
within the scope of his official capacity, and which are not in-
cluded in the said monthly statements made to the finance de-
partment. This shall show in detail in what action, or proceed-
ing, the money has been received, what amount of the money has
been paid over, and to whom, and when, and upon whose order,
the same was paid over ; and it shall show by voucher, that any of
the money, yet retained in the custody of the court, is on deposit
with the said chamberlain. Such statements shall be delivered to
the chief justice, or, in his absence, to the justice presiding at
the Special Term.

4. No money deposited in the custody of the court, in any ac-
tion, or in any proceeding, shall be paid out, except on the written
order of one of the justices, filed in the office of the clerk. Copies
for service must be certified by the clerk and the seal of the court,
and be countersigned by a justice.

RULE XXI.

Complaint Dismissed at Trial Term — Kestoration.

Where a complaint is dismissed, or an inquest allowed, at a
Trial Term, the cause will not be restored on consent of the
parties; but the facts may be presented to the justice presiding
in the part where the cause was disposed of, or at the Special
Term, by motion for action thereon.

Former Rules Abrogated.
All rules heretofore in force and not contained herein, are
hereby annulled.

City Court of the City of New York. '

At least three days' notice of settlement of all orders upon ,
remittiturs from the Appellate Term and Appellate Division, ,
Supreme Court, shall be given before presenting the same for
signature and entry. i

Dated New York, January 21, 1909.

By order of the court.

Hule 6] Special Rules of Peactice. 655

Rules Adopted by the Justices of the Court of Special
Sessions of the First Division of the City of New
York.*

RULE I.

The Court of Special Sessions of tlie First Division of the city
of New York shall be held in the building for criminal courts in
the borough of Manhattan, in the city of New York.

RULE II.

A term of the court shall be held each month, and commence
on the first Monday of each month, unless such day shall be a legal
holiday, and then the term shall commence on the day following.

RULE in.

The court shall open at 10 o'clock in the forenoon, and shall be
held upon each and every day of the year except upon Saturdays,
Sundays and legal holidays, unless the court for sufficient reasons
■of a public nature otherwise directs.

RULE IV.

The clerk, deputy clerk and all the other officers and attendants
of the court shall be present at the sessions of the court, unless
absent by consent or direction of the court, or for good and suffi-
cient reasons satisfactory to the court.

RULE V.

The duties of the clerk and deputy clerk shall be the same as
those now performed by the clerk and deputy clerk of the Court
of General Sessions, in the county of New York, as near as may
be, in addition to those enjoined upon them by law.

RULE VI.

The stenographer and interpreter shall perform the duties usu-
ally performed by such officers in courts of law. The assistant
clerk shall perform such duties of a clerical nature as he may, by

* Kules I to XI inclusive, also adopted by the Second Division of the Court.

556 jSTew Yoek City Couet. [Eule 8

the clerk or deputy clerk, be called upon to perform. All other
officers and attendants of the court shall perform the duties appro-
priate to their respective positions as they may he from time to
time directed by the court or its clerk or deputy clerk.

RTiiE vn.

Except when otherwise directed by the court, the clerk shall
cause a calendar to be made up for each day the court is held.
Upon such calendar a sufficient number of cases shall be entered
to occupy the court for the day, and cases shall be entered under
proper heads upon such calendar as follows:

First. Cases entitled to a preference under section 291, sub-
division 7, of the Penal Code.

Second. Cases in which defendants have not yet pleaded.

Third. Cases for trial in which defendants are in actual
custody.

Fourth. Cases for trial in which defendants have been admit-
ted to bail.

Fifth. Upon such days as the court may direct, proceedings re-
specting bastards and disorderly person cases must be arranged
as nearly as possible in the order of the numbers stamped upon the
depositions in each case, and will be disposed of as they are reached
upon the calendar.

Cases shall not be adjourned, except for legal cause. The court
shall have at all times power to depart, for good and sufficient
reasons of a public nature, from this rule and order its calendar
and dispose of the cases thereon in its discretion.

EULE vin.

The order of procedure in conducting the business of the
court shall be as follows, to wit:

First. The disposition of cases which, under section 291, sub-
division 7, of the Penal Code, are entitled to preference.

Second. Hearing of motions.

Third. Sentencing of defendants previously convicted.

Fourth. Arraignment of defendants for pleading; and, in cases
where pleas of " guilty " are entered, the imposition of sentence,
if the court desires then to impose it and the defendant waives
delay.

Rule 12] Special Rules of Peactice. 557

Fifth. Disposition of cases entered upon the calendar for trial.
The court may, for reasons of a public nature, depart from this
order of procedure.

RULE IX.

The justices shall meet on the iirst Mondays of January, April,
July and October of each year to transact such business as they
may as a body do. But a special meeting may be held at any time
by consent of all the justices, or may be called by any two of the
justices by five days' written notice indicating the nature of the
business it is desired to transact, and signed by such justices.
Each justice shall give the clerk of the court an address where
matters may be sent to him by mail; and the mailing to him at
such address of notice of a special meeting five days before the
day for which such meeting is called, shall be due notice thereof.

RULE X.

The justices shall make, and may from time to time alter,
assignments of justices for holding each term of the court, and
such assignments shall be so ordered that as nearly as may be
each justice shall be assigned to three consecutive terms. In
making said assignments, the justice to preside at each term shall
be indicated. The justice so selected to preside shall be known
and described as the presiding justice, and the other two justices
holding the term with him shall be known as and described as
associate justices. Whenever, for any reason, the presiding jus/-
tice assigned to hold any term of the court -shall .be absent, the
court shall designate one of the justices holding court to act as
presiding justice,

RULE XL

The practice and procedure of the court shall in all cases not
provided for by law or by the rules of this court be that of the
Court of General 'Sessions of the city and county of New York.

RULE XIL

The foregoing rules shall not apply to the practice and pro-
cedure in the Children's Part of this court, but the procedure and
practice in said Children's Court shall be regulated and controlled
by the justice presiding in said court at his discretion, except that

558 New York Municipal Couet. [Eule 1

the rules applicaWe to tlie clerks and other officers of this court
shall apply to and control the actions of said clerks and other
officers of said Children's Court.

RULE xin.

When a case in the Children's Part of the Court of Si)ecial
Sessio'ns of the First Division of the city of New York is ad-
journed to be tried before three justices of the Court of Special
Sessions, as provided in section 1419 of the Greater New York
charter, as amended by section 3, subdivision 3, of chapter 590
of the Laws of 190'2, such trial shall be had at the main courtroom
of said Court of Special Sessions of the First Division of the city
of New York, in the building for criminal courts.

Rules of the Municipal Court of the City of New York.

RiriE I.

Calendar Practice.

(a) 'Court shall open at 9 o'clock a. m.

(b) The parts of the court in each district shall be numbered
consecutively.

(c) In any district where more than one part is held, all
process, orders to show cause and notices of motion shall be made
returnable and called in Part I, and all calendars shall be called
in that part. In any district where, in the judgmient of the elected
or appointed justices thereof, the volume of business is too great
to be accommodated by the call of the entire calendar in Part I
such justices may (file with the secretary of the board of justices
a written designation of Part II as the part of said court where
the calendar of adjourned causes shall be called, and due notice
of such designation shall be conspicuously posted in and about
the court premises.

(d) The process of the court shall be returnable on any court
day.

(e) All summonses, precepts, notices of motion and orders to
show cause shall be made returnable at 9 o'clock a. m. Where
more than one part of the court is in session, the justice calling

E.ule 1] Special Eules of Peactice. 559

the calendar shall forthwith, upon a cause being marked ready for
trial, assign it for trial to a disengaged part and so continue un-
til all parts are engaged.

(f) The clerk of each district shall prepare a day calendar,
containing return causes and adjourned causes, which shall be
posted in the clerk's office before the opening of the court.

Causes shall be placed upon the trial calendar in the order in
which they have been adjourned.

The clerk shall note upon the calendar the causes entitled to a
preference under Rule XII.

(g) During the months of July and August, court shall be held
on such two days during each week, as the presiding justice shall
designate, and during said months no cause other than proceed-
ings for the summary recovery of real property and actions
brought to recover wages shall be tried, except by order of the
presiding justice.

(h) There shall be in each district a reserved generally calen-
dar, on which calendar the court may, of its own motion, place
any cause which has been adjourned more than three times, and
on this calendar any cause may likewise be placed by consent or
upon stipulation of the parties or of counsel. Causes may be
restored on three days' notice and placed on the calendar for trial
for a day subsequent, or parties may at any time consent to take
a cause from the reserved generally calendar and restore it to the
day calendar, upon the approval of the court.

(i) There is hereby established what shall be designated as a
special calendar, to which causes may be transferred for trial from
any of the districts in the borough of Manhattan, by consent of at-
torneys. Such consent shall be in a form approved by the board of
justices, and blanks may be obtained at the clerk's offiice in the
several districts of the borough of Manhattan. Causes so trans-
ferred to this calendar shall not be set for trial for any particular
day, but shall be placed upon such calendar in the order in which
they shall be transferred thereto, and shall be numbered consecu-
tively in the order of receipt by the clerk in charge of said special
calendar. Such special calendar shall be called in one of the
parts of the First District Court of the borough of Manhattan
at 9 o'clock each court day, in a part other than that in which
any other calendar is called. Cases on this calendar must be

560 New; Yoejc Municipal Couet. [Rule 2

tried when reached, except where legal cause is presented by affi-
davit or else marked to the foot of such special calendar. It shall
be the duty of the clerk of the First District Court of the borough
of Manhattan, or one of the assistant clerks who may be specially
designated by the board of justices for the purpofse of attending
to this special calendar, and who, if so designated by the board of
justices, shall be known as the special calendar clerk, to prepare
a day calendar in accordance with this rule, placing thereon as
many causes as in his judgment can be reached for trial on the
day for which the calendar is prepared. Such calendar shall be
posted in the clerk's offiice at least two days in advance, and shall
be furnished by such clerk to the " New York Law Journal " for
publication. It shall be the duty of such clerk to keep a record
of the cases transferred to this special calendar, and to enter
thereon the name of the cause and day of its receipt, and the dis-
trict from which the same is received, immediately after the re-
ceipt of the papers in said cause; and it shall be the duty of the
clerks in the respective districts in the borough of Manhattan to
forward to the clerk of the First District Court, without delay,
any cause which has been transferred to such special calendar.
The causes so transferred to such special calendar shall, after such
transfer, be considered as transferred for all purposes to the First
District Court of the borough of Manhattan, and as pending
therein, and all future records shall be made in such district.

EULE II.
Filing of Return and of Other Papers.

(a) All process, pleadings and writings filed with the clerk
shall be appropriately indorsed, and the clerk shall, on such
papers being filed, stamp the same " filed," with the date of filing,
and write his name or initials of his name and the title of his
office thereon. Unless properly indorsed the clerk shall not ac-
cept any papers for filing.

(b) To entitle a cause to be placed on the calendar, the sum-
mons or other process must be returned with proof of service
thereof to the clerk's office, and the calendar fee paid at least two
days before the return day. This rule shall not apply to precepts
in summary proceedings where, by direction of the court, they are
made returnable on the same day as issued.

Eule 5] Special Etjles of Peacticb. 561

(c) The summons, wlien returned to the clerk's office, shall be
indorsed with the residence or post-office address of the plaintiff,
and also the name and post-office address of the attorney, if any.
The indorsement upon the summons of the address of the plain-
tiff shall he deemed his post-office address for the purpose of the
service of papers in all cases where papers may be served upon
the plaintiff.

(d) The indorsement of the name and address of the attorney
on the summons, pleading or any other paper in an action or
proceeding shall be deemed an appearance within the meaning
of section 332 of the Municipal Court Act.

EULE III.

Entry of Order on Justice's Decision.

The indorsement of the justice upon any paper or process shall
be the equivalent of the entry of a formal order, but either party
desiring it may enter a formal order upon the decision of the
justice.

RULE IV.

Time Within Which BiU of Particulars Shall be Filed.

When a bill of particulars is ordered, the same shall be filed
in the clerk's office within three days after such order is made,
unless other direction is made by the justice.

RULE V.

When Jury Trial is Demanded.

(a) When a jury is demanded, the jury shall be publicly drawn
by the clerk from a panel under the supervision of the presiding
judge.

(b)' It shall be the duty of the clerk to deliver the venire to
the marshal or other person designated to effect service upon
jurors at least three days before the jurors are required to attend,
and it shall be the duty of the party receiving the venire to effect
service thereunder upon the jurors forthwith. This provision
may be modified by the presiding justice in summary proceedings
to recover possession of real property.

562 MuNTciPAL CouET, CiTY OF New Yoek, [Rule 10

RULE VI.

"Where Original Process is not Returned to the Court.

If the original summons or other process or mandate of the
court is not returned to the office of the clerk, the court may in-
dorse a dismissal of the action or proceeding upon the copy of
such summons, process or mandate, or grant other appropriate
relief and award costs in proper cases ; and such copy of summons,
process or mandate, with such indorsement thereon, shall there-
upon be filed with the clerk, and shall have the same effect as if
the original had been so indorsed or filed, provided proof of
service is made, or written notice of appearance by attorney is
filed.

EULE vn.

Stipulations Adjourning Trial.
All written stipulations adjourning trial must be approved by
the justice presiding in the district in which the action is pending,
and must be filed at least one day before the day for which the
case is set for trial.

RULE vm.

Adjournments for Cause.

Causes set down for trial shall be tried when reached, unless
legal ground for adjournment is presented by affidavit.

RULE IX.

Motions.

(a) Motions may be brought on for hearing on not less than
three days' notice, unless otherwise directed by the court

(b) Ex -parte applications may te made to any justice without
regard to the district in which the action or proceeding is pend-
ing, or about to be commenced. Upon all such applications an
affidavit shall be presented, which shall state whether any previous
application has been made, and, if made, to what justice, and the
reasons, if any, for a previous denial of the relief asked for.

RULE X.
An Undertaking to Secure Discharge of Levy on Attachment.
No approval of an undertaking given by the party or claimant
to procure discharge of a levy under an attachment shall be

Rule 13] Special Eules or Pkactice. 563

granted ex parte. A party or claimant applying for such ap-
proval shall give at least two days' notice of justification to the
adverse party.

RULE XI.

Stipulations Extending the Court's Time to Decide.
A stipulation to extend the time of the court within which to
render a judgment or make a decision must be in writing or noted
upon the minutes of the trial.

RULE XII.

Preferred Causes.

The following causes shall have preference on the calendar in
the order named :

(1) Actions to recover wages.

(2) Summary proceedings to recover possession of real
property.

(3) Causes held ready on the preceding trial day and not
reached at the hour of adjournment.

(4) Actions on a written instrument for the payment of money
only.

RULE xin.

Duties of Clerks and Other 0£SciaIs.

(a) The conduct of the office of clerk in each of the districts
shall rest with the clerk, who shall be clothed with the responsi-
bility of keeping the proper records required by law, and of pre-
serving the papers and records of the court. The duties of the
deputy clerk and such assistant clerks and other court oificials
attached to the court, when not in conflict with any statutory
provision, or anything contained in these rules, shall be desig'
nated by the clerk. Such duties shall be specified in writing by
the clerk, and, when approved by the justice or a majority of
the justices elected from the district, shall be filed with the secre-
tary of the board of justices.

(b) The clerk, deputy clerk, assistant clerks, interpreters and
attendants shall report for duty promptly at the places to which
they are assigned at 8.45 o'clock a. m. each day, and shall be

564 Municipal Couet, City of New Yoek. [Eule 13

in attendance until 4 o'clock, or until such later time as the
court adjourns for the day.

(c) All court attendants shall, when on duty in and about the
court, wear such uniforms and badges as may be prescribed by
the board of justices.

The court interpreter shall wear an oiEcial badge during the
session of the court.

(d) The stenographer shall be in attendance during the
sessions of the court and at such other times and places as the
justice appointing him may direct.

(e) It shall be the duty of the court attendants to maintain
order in and about the court and the officers thereof, and perform
such other duties in connection with the work of the court as the
justice or justices of the district to which such court attendants
may be assigned shall require.

(f) The clerk in each district, or in his absence, the deputy
clerk, shall, on or before the third day of each month, make a
statement in writing, duly verified by his oath, of money re-
ceived for fees by him as such clerk during the preceding month,
and on or before the day named pay into the finance department
of the city of Wew York all such moneys received by him for
the use, or on behalf, of the city, for the preceding month, as
required by law. A summary thereof shall thereupon be filed
with the secretary of the board of justices, together with a de-
tailed statement of the business of the court for the previous
month. The clerk, or, in his absence, the deputy clerk, of each
court shall keep accurate accounts of the moneys received by
him, and shall deposit in such bank as the comptroller of the
city may designate all such moneys.

(g) The clerk shall take receipts for all moneys paid out by
him.

(h) In the docket of summary proceedings which the clerk of
the court is required to keep, pursuant to section 2-84 of the
Municipal Court Act, he shall enter, in addition to the matters
he is required to enter by the provisions of that section, the fol-
lowing: The particulars of the final order of the court, the date
of the issuing of a warrant and to whom; the return and when
made, and the particulars of such return.

Rule IT] Special Eules of I'eactice. 565

RULE XIV.
Submission of Papers.

All papers shall be submitted to the clerk in the district in
which the action is pending, and it shall be the duty of the clerk
to forward such papers promptly to the justice to whom they are
to be submitted. In forwarding records to other districts, the
clerk shall in all cases obtain a receipt for the records delivered.

RULE XV.
Duty of the Secretary of the Board.

It shall be the duty of the secretary of the board of justices to
safely keep in lais possession, as a public record, any paper,
document or record which he is required by law, or by the rules
of the board of justices, to keep, which records shall be open for
public inspection.

RULE XVI.
Return on Appeal.

The return on appeal shall be made up as follows :

1. The judgment-roll, which shall include the summons or other
process, the pleadings, stipulations, orders and the judgment,
which shall be fastened together.

2. AU exhibits, which shall be inclosed in a separate cover, ap-
propriately indorsed.

3. The stenographer's minutes, which shall be transcribed by
the stenographer on suitable paper eight inches wide and ten and
one-half inches long, with an index, inclosed in a suitable cover,
and appropriately indorsed.

The clerk's return shall be annexed to the stenographer's
minutes.

RULE xvn.

stenographer's Fees.
The fees of the stenographer for a transcript of his minutes
pursuant to section 353 of the Municipal Court Act shall be de-
posited with the clerk of the district where the action or proceed-
ing is pending, who, upon the filing of the transcript, shall de-
liver the money deposited to the stenographer.

566 Municipal Couet, City of New Yoek. [Eule 4

The Board of Justices of the Muncipal Court, city of New
York, has adopted the following:

On and after Monday, January 4, 1909, the special calendar
provided for by Rule 1, subdivision 1, of the Municipal Court of
New York city will be called daily in Part IV of the Municipal
Court for the borough of Manhattan at 9 o'clock a. m., at the
Court House, Sixth avenue and Tenth street (Jefferson Market).

Cases not requiring jury trials may be transferred from any
district in the borough of Manhattan to such calendar by consent
of parties and order of the court, and numbers will be given to
such causes when received by the clerk of the special calendar,
and will be called upon the day calendar according to such num-
bers for trial or other disposition.

RULES RELATIVE TO CLERKS AND ATTENDANTS OF THE MUNIC-
IPAL COURT.

RULE I.

The clerk, assistant clerk, interpreter and attendants of each
court shall attend each day from 9 o'clock a. m. to 4 o'clock
p. m., and at such other times as the justice may direct, except as
otherwise provided by law. The stenographer shall be in attend-
ance during the sessions of the court, and at such other times and
places as the justice may direct.

RULE n.

The attendants shall maintain order in and about the court and
the offices thereof.

RULE ni.

The attendants and interpreter shall wear an official badge
during the session of the court.

RULE IV.

During the session of the court the clerk thereof, or, in his
absence, the assistant clerk, shall be in attendance therein, admin-
ister oaths, keep minutes and receive the verdict of a jury, and
when not so employed the time of the clerk and assistant clerk
shall be devoted to the business of the clerk's office.

Rule 15] Special Eules of Peactice. 567

EULE V.

The clerk of each court, or, in his absence, the assistant
clerk, shall, on or before the third day of each month, make a
statement in writing, duly verified by his oath, of moneys received
for fees by him as such clerk, during the preceding month, and
on or 'before the day named, pay in to the finance department of
the city of ISTew York all such moneys received by him for the
use, or on behalf of the city, for the preceding month as required
by law. A summary thereof shall thereupon be filed with the
secretary of the board of justices, together with a detailed state-
ment of the business of the court for the previous month.

RULE VI.

The clerks and assistant clerks shall keep and preserve full,
correct and true re-cords of the proceedings of the court, and of
their office, properly file and preserve all process, pleadings, man-
dates or other papers, deposit in bank all moneys paid to them,
keep accurate accounts thereof, and shall faithfully perform the
duties imposed upon them by chapter 580 of the Laws of 1902.

RULE vn.

When moneys are paid to persons other than parties or their
attorneys the clerks shall require and file in their ofiices a written
request from the party or the attorney entitled to such moneys to
authorize such payment, and a receipt therefor.

RULE XV.

Ulx parte applications may be made to any justice without re-
gard to the district in which the action or proceeding is pending
or about to be commenced. The aifidavit shall, however, state
whether any previous application has been made, and if made, to
what justice, and what order or decision was made thereon, and
what new facts, in any, are claimed to be shown. It shall also
state the residence of ■ the parties. For failure to comply with
this rule any order made on such application may be revoked or
set aside. The denial of an ex parte application, with the reason
therefor, may be indorsed therwn by the justice to whom the
same is presented.

568 Municipal Court, City of New York. [Eule 22

RULE XVI.

No approval of an undertaking given hj a party or claimant
to procure the discharge of a levy under an attachment shall be
granted ex parte. The party or claimant applying for such ap-
proval shall give at least two days' notice of justification to the
adverse party.

RULE XVIL

A stipulation to extend the time of the court within which to
render a judgment or make a decision may be entered into be-
tween parties or their attorneys on the record in the minutes of
a trial, or in a written stipulation signed to that effect.

RULE xvm.

Affidavits of service of process must in all cases comply

strictly with the provisions of Rule XVIII of the Supreme Court

Rules.

RULE XIX.

Costs shall not be awarded to a defendant who appears by
attorney when there are no verified pleadings, unless a written
notice of appearance is filed.

RULE XX.

The phrase " case on appeal " in sections 317 and 318 of the
Municipal Court Act shall be deemed to refer simply to the jus-
tices' return on appeal as the same has been heretofore known.
The phrase " including the evidence " shall be deemed to include
all exhibits admitted in evidence.

RULE XXI.

In cases where attorneys may be represented by clerks, the
clerk or clerks so appearing shall be only those whose certificates
of clerkship shall have been filed in the office of the clerk of the
Court of Appeals. ^^^^ ^^^

When a cause has been adjourned more than three times, by
consent or stipulation, the court may, on its ovm motion, place it
upon the calendar of causes reserved generally. It may be re-
stored on three days' notice, and placed upon th.e calendar for
trial for a day subsequent. Parties may at any time consent to
take a cause from a day calendar and place it upon the calendar
for causes reserved generally.

Kule 3] Special Rules of Practice. 569

Rules of the Court of General Sessions in and for the City
and County of New York.

CALENDAR AND PRACTICE RULES.

RULE I.

The clerk shall enter in a book a record of all indictments pend-
ing in the Court of General Sessions on the 1st day of January,
1910, and of all indictments which shall be found thereafter in
said court, or transferred thereto from the Supreme Court, upon
which issue shall have been joined by a defendant's plea or
demurrer. Said indictments shall be entered in said book accord-
ing to the^date of the joinder of issue. When two or more defend-
ants are jointly indicted and issue has been joined on different
dates, the date of issue shall be the date upon which issue was
first joined by any defendant by plea.

RULE n.

The clerk shall make and keep two calendars, to be known,
respectively; as, (1) " Calendar of Prison Actions," which shall
contain a list of all actions wherein a defendant is imprisoned,
and (2) " Calendar of Bail Actions," which shall contain a list
of all actions whsrein a defendant has been admitted to bail.
Actions shall be placed by the clerk upon such calendars, respec^
tively, in the order of the joinder of issue.

RULE ni.

The clerk shall make up from the General Calendar of Prison
Actions a calendar to be known as the Call Calendar of Prison
Actions. Said calendar shall consist of indictments upon which
issues shall have been joined by plea, in the order of the joinder
of issue. Said calendar shall be called by the judge holding
Part I on Monday, Wednesday and Friday of each week, at 2
p. m., unless the said judge shall otherwise direct. Upon such
call, the judge shall assign said actions for trial, in rotation, to
Parts I, II and III of the court, except as hereinafter provided.

570 Court of General Sessions — New Yoek. [Rule 9

RULE IV.
The clerk shall make up from the General Calendar of Bail
Actions, a calendar to be known as the Call Calendar of Bail
Actions. Said calendar shall consist of indictments upon which
issue shall have been joined by plea, in the order of the joinder
of issue. Said calendar shall be called, by the judge holding
Part I, on Friday of each week, at 2 p. m., unless said judge
shall otherwise direct. Upon such call, the judge shall assign said
actions for trial, to Part IV of the court, except as hereinafter
provided.

RULE V.

Actions in which the defendants are charged with homicide,
and all other actions wherein it shall appear to the satisfaction of
the judge that the trial will necessarily occupy more than three
days, whether the defendant is imprisoned or under bail, shall be
assigned to Part V of the court for trial.

RULE yi.

If an extended term of the court be held, the judge calling the
call calendar shall assign to it for trial either bail or prison
actions, or both.

RULE VII.

A judge holding any part of the court may transfer an action
from his part to another part, with the concurrence of the judge
presiding over such other part.

RULE vin.

When there are more indictments than one against the same
defendant, upon which issue has been joined by plea, the actions,
when assigned for trial, shall be assigned to the same part of the
court.

RULE IX.

When there are codefendants in an action, and some, but not
all, furnish bail, the action shall be deemed a prison action as
against all the defendants.

Rule 14] Special Rules of Peactioe. 571

EULE X.

Calendars for the Respective Parts of the Court.
Each part of the court shall have two calendars, to be known
respectively; as (1) preferred calendar; and (2) regular calendar.

RULE XI.

The clerk shall make up calendars for the respective parts of
the court for each day, from the actions assigned from the call
calendars, in the order of the dates of the joinder of issue. He
shall arrange the actions entitled to a preference under the title,
" Preferred Calendar," and all other actions imder the title,
" Regular Calendar."

RULE XII.
Preferred Calendar.

When a defendant in an action is charged with the violation of
any provision of sections 480 or 481 of the Penal Law, or when a
defendant under the age of sixteen years is charged with an
offense triable in this court, or when a defendant is charged with
an offense against the person of a child under the age of sixteen
years, the trial of any such action shall have preference over all
other actions in the part of the court to which it is assigned ; and
the clerk shall place the action upon the calendar of said part
under the title, " Preferred Calendar."

RULE xin.

"When a witness has given an undertaking, or is detained to
appear against a defendant in an action, or when a material wit-
ness in an action is a nonresident, or is about to leave the State,
the trial of any such action shall be placed upon the preferred
calendar following the actions entitled to a preference under
Rule XII.

RULE XIV.

The trial of an action may also be preferred, whether or not
such action be on the call calendar, when it appears, by certificate
of the district attorney, or by affidavit of the defendant, to the
satisfaction of the judge presiding in Part I, that there should be
a speedy trial. The action shall be assigned thereupon to a part

572 CouET OF General Sessions — New York. [Rule 18

of the court, and shall be tried immediately, or upon the con-
clusion of any action on trial in such part. The motion to prefer
shall be made on one day's notice.

RULE XV.

Upon the call of the call calendar, it shall be the duty of the
district attorney, by certificate, or of the defendant, by affidavit,
to inform the judge if an action be entitled to preference under
Eules XII, XIII and XIV, or if a special disposition of the
action be required under Rules V, VIII, IX and XVI.

RULE XVL

If, upon the call of a call calendar, it be established by cer-
tificate of the district attorney or by affidavit of the defendant,
to the satisfaction of the judge that an action should not then
be assigned to a part for trial, the judge may direct that the
action be placed upon a subsequent call calendar.

RULE xvn.

"When an action appears upon the day calendar, it must be
tried, unless it appears by certificate of the district attorney, or
by affidavit of the defendant, to the satisfaction of the judge call-
ing the day calendar that, in consequence of the happening of an
event since the action was assigned for trial, the trial thereof
cannot proceed vrith justice to either the people or the defendant,
the judge may then set the action down for trial on another day
in the term, or transfer the action to the call calendar.

RULE xvm.

When an action is on the day calendar for trial, if it shall
appear to the judge, by affidavit, that the counsel who is to try the
action is to argue a cause on the day calendar of the Supreme
Court of the United Stats, or on the day calendar of the Court
of Appeals of the State of New York, or on the day calendar of
any Appellate Division of the Supreme Court, or is actually
engaged in the trial of a cause in a court of record in the State of
New York, the trial of the action shall be passed for the day, or

Eule 23] Special Rules of Peactice. 573

imiil such argument or trial is concluded, unless the trial in
which counsel is engaged is a protracted one. In no other event,
except as provided in Eule XVII, shall the trial of the action
upon the day calendar be passed for the day.

RULE XIX.

When a defendant gives bail after the action has been assigned
to a part for the trial of prison actions, the action shall be dis-
posed of in the part to which it was originally assigned ; or, in the
discretion of the judge presiding in such part, it may be trans-
ferred to Part IV for trial.

RULE XX.

If a defendant under bail be rearrested on the original charge
and be thereupon committed, the action shall be placed on the
calendar for prison actions, unless he be admitted again to bail.

RULE XXI.

When two or more defendants are jointly indicted, and one or
more defendants have been tried before the judge holding the part
to which the action was assigned, tlie trial of the remaining de-
fendant or defendants shall proceed before the same judge, unless
otherwise ordered by such judge, or, in his absence, by the judge
presiding in Part I.

RULE xxn.

Withdrawal of Plea.

When an action is called upon the call calendar a defendant
may apply to withdraw his plea of not guilty and interpose a plea
of guilty. A defendant, at any time after his action has been
assigned for trial to a part of the court, may apply also in such
part, upon one day's notice to the district attorney, to withdraw
his plea of not guilty and interpose a plea of guilty.

RULE xxin.

When an action has been tried and the jury have disagreed,
or, if there has been a mistrial, or a juror has been withdrawn,
the action may be tried again in the same part of the court, or, in

574 CotTET OF Geneeal Sessions — New Yoek. [Eule 27

the discretion of the judge, the action may be transferred to the
next appropriate call calendar, and it shall appear at the head
thereof.

RULE XXIV.

When a judgment of conviction is reversed a/id a new trial
ordered, the action shall be restored to the appropriate call cal-
endar within ten days, and it shall appear at the head thereof.

RULE XXV.

If a judgment of conviction in the Magistrate's Court be re-
versed and a new trial ordered, such new trial shall proceed before
the judge who ordered the new trial, on a day to be fixed by said
judge.

RULE XXVI.

'No trial of a bail action shall be had during the months of
July, August and September, except on action entitled to a pref-
frence under the rules.

RULE xxvn.

Order of Procedure.

The order of procedure shall be as follows:
Parti:

1. Judicial direction of the grand jury.

2. Call of the Day Calendar 10 :30 a. m.

3. Motions and appeals.

4. Pleadings.

5. Sentences.

6. Pleas of guilty to indictments from Day Calendar.

7. Trials.

8. Call Calendar — Monday, Wednesday and Friday,

2 p. m.
Parts II, III, IVand V:

1. Call of the Day Calendar 10:30 a. m.

2. Sentences.

3. Pleas of guilty to indictments.

4. Trials.

A judge may, in his discretion, depart from this order of pro-
cedure.

Eule 31] Special Rules of Pkactice. 575

RULE XXVIII.

Bx 'parte applications to issue a bench warrant, or to fix or in-
crease bail, in an action which has been assigned to a part for trial,
shall be made to the judge of such part, or, in his absence, to any
judge of the court.

All other ex 'parte applications and all other motions, except
those incidental to the trial of an action, shall be made in Part I.

RULE XXIX.

Motions to be made in Part I may be noticed for any court day
during the term. They must be noticed for 10 :30 a. m. Two
days' notice of motion shall be given, unless an order to show cause
returnable in less time be granted. Each side shall be allowed
fifteen minutes on the argument of a motion, or of an appeal, un-
less the court shall otherwise order.

Notes of issue for motions and appeals must be filed with the
clerk of the court at least one day before the day on which the mo-
tion or appeal is noticed to be heard, except where an order to show
cause returnable in less time is granted, when the clerk shall place
the motion upon the calendar at any time before the hearing, upon
the exhibition of the order to show cause and the filing of a note
of issue.

RULE XXX.

All cases on appeal to Appellate Division, First Department,

must be submitted to the clerk of this court for certification at

least five days before the time specified in Appellate Division

Rule VI.

EULE XXXI.

Appearances of Attorneys.
Upon the application of an attorney duly authorized to prac-
tice in the courts of this State, the clerk shall enter, in a book to
be kept for such purpose, and known as the " Appearance Book,"
the appearance of such attorney on behalf of a defendant charged
with crime in an action pending in this court. The clerk shall not
enter any subsequent appearance of another attorney for such de-
fendant, without an order in writing made by a judge of this
court.

576 Magisteates' Couets — Fiest Division. [Eule 2

Whenever the appearance is entered, as above specified, and the
defendant in the action is imprisoned in the city prison, the clerk
shall forthwith notify the warden of the city prison of the name
of the attorney appearing, and the name of the prisoner for whom
such attorney appears.

Upon the presentation of an order from any judge of the court,
the clerk shall also issue a permit to the attorney named in such
order, authorizing him to confer with the defendant or defendants
named therein, and such attorney shall thereupon make an entry
to that effect in the Appearance Book.

Pursuant to the provisions of chapter 542 of the Laws of 1909,
the foregoing rules are adopted as the Calendar and Practice Pules
of the Court of General Sessions in and for the city and county
of New York, to be in force on and after January 1, 1910.

Dated, New York, December 14, 1909.

RULES GOVERNING THE MAGISTRATES' COURTS OF NEW YORK CITY
(FIRST DIVISION).

EULE I.
Assignment and Rotation of Magistrates.
Assignments of magistrates to the several District Courts shall
be made by the board of magistrates to cover a period of at least
six months, which shall provide for a rotation of magistrates hold-
ing said courts.

RULE n.

Time at Which Courts Shall be Held.
The First, Second, Third, Fourth, Fifth and Seventh District
Courts shall be opened each day at 9 o'clock in the morning,
and shall not be closed for the day before 4 o'clock in the after-
noon, except on Saturdays and legal holidays, when morning
sessions only shall be necessary, and except also that on the day
of general election every court shall remain open until closing
of the polls. Except on Saturdays, Sundays and legal holidays,
when morning sessions only shall be necessary, and on the day of
general election, when it shall remain open until the closing of
the polls, the Sixth and Eighth District Courts may be closed at

Eule 6] Special Eules of Peactice. 577

any hour in the afternoon of any day, whenever, in the opinion
of the magistrate presiding therein, further continuance in session
is not required by the business or for the convenience of the pub-
lic of that district.

RUIE III.

Who to be in Attendance.

There shall be in attendance at each of such courts, at the times
specified in Eule II, all the clerks, clerks' assistants, the court
stenographer (if there be any) and all proper court officers
assigned thereto; and any violation of this rule may be reported
to the board of magistrates by the magistrate presiding in the
court where such violation occurs.

RULE IV.
Ordet of Business.

1. Disposition of precinct returns.

2. Hearing returns on warrants and summonses.

3. Examinations.

4. Hearing and disposing of complaints.

The presiding magistrate may vary the foregoing whenever in
his judgment the public service may require it.

EULE V.

Mannei of Keeping Records.

The police clerks shall keep, or cause to be kept, in each of the
courts the following books :

1. The court record.

2. A bond book.

3. A fine book.

4. A warrant book.

RULE VI.

Collection and Disposition of Fines.
All fines, if the same shall be paid before full commitment,
shall be collected by the police clerks in the district in which
sttch fines were imposed, and shall be duly entered by him in

578 Magistkates' Cotjbts — Fiest Division. [Eule 8

the record, and in the fine book kept for that purpose. Every
police clerk shall, on or before the fifth day of every month,
prepare or cause to be prepared a written statement which shall
be verified under oath by said police clerk, and which shall con-
tain a full, just and true account of all the money received by
him as fines or penalties during the preceding month. It shall
be the duty of every police clerk to present the aforesaid state-
ment to the comptroller of the city of New York and to pay to
said comptroller all the moneys so received and collected on or
before the fifth day of every month as aforementioned. Police
clerks shall take receipts for such payments, which shall be
annexed to duplicates of said statements, and be retained by the
police clerks as vouchers. The fine book kept by every police
clerk shall be arranged so as to show in detail the amount of
moneys collected by him for fines and penalties; the daily collec-
tions, the time and amount of deposit in bank of such moneys,
and the time of payments and the amount paid to the comptroller.
On or before the tenth day of every month the police clerks, and
each of them, shall report to the president of the board of magis-
trates the payment to the comptroller by him of the moneys col-
lected by him for and be retained by the police clerks as vouchers.

RULE vn.

Warrants.

Warrants shall be issued to peace officers only and, except in
cases where the complaint is presented by the district attorney,
the magistrate shall not intentionally issue a warrrant save in the
district in which the offense is charged to have been committed.
Search warrants shall be issued only in the district in which the
place to be searched is situated, except it be issued in aid of a
prosecution duly instituted in some other district, when it may be
issued by the magistrate presiding in the district where such
prosecution is instituted.

RUIE VIII.
Cases of Vagrancy.

In cases of vagrancy, and of cases where the order of the magis-
trate may deprive any person of his or her liberty, or impose a

Rule 11] Special Rules of Peactice. 579

fine, such person shall appear in open court and may be heard
in his or her defense, and produce witnesses or any competent
testimony in his or her behalf, and the magistrate shall decide
each case from the evidence before him.

RULE IX.

Fixing Bail.
All bail bonds, recognizances and obligations demanded or re-
ceived by any City Magistrate's Court shall be executed and
acknowledged before a proper officer by the party intended to be
bonded thereby, and when executed in the presence of the magis-
trate taking them, he shall attest the same by his official signature ;
and all sureties thereto, before being accepted as sufficient, shall
severally subscribe and make oath to an affidavit, in each case
naming his residence, which must be in the State of JSTew York,
and specifying and locating sufficient property owned by him, and
that he is worth a sum at least twice the amount of the obligation
assumed by him, over and above all debts and liabilities against
him; and, if the magistrate has reasonable doubts about the suffi-
ciency of the surety offered, he shall, in addition to such affidavit,
make other inquiries or take additional proof as to the identity
and responsibility of such surety, and shall, in all cases, reject
any surety or sureties whom his judgment does not approve as
sufficient.

RTJIE X.

Transferring Cases for Cause.

'So charge, complaint or person brought before one magistrate
shall be sent before another, except for adequate cause, to be fully
and at once entered upon the record kept by the police clerk and
signed by the magistrate.

RULE XI.

Recognizances to Keep the Peace.

Recognizances to keep the peace must be filed with the clerk
of the Court of Special Sessions on or before the fifth day of
every month.

580 Magistkates' Cottets — First Division. [Eule 14

RULE xn.

Consents to Discbaige.

In all cases of the signing of a consent by a city magistrate
to the discharge of a prisoner after conviction and final commit-
ment, a record thereof shall be made in the record book.

RULE xm.

Maintenance of Order.
In order that the business of the several City Magistrates'
Courts may be conducted in an orderly, decorous and efficient
manner, in the exercise of the power conferred on the Eoard of
City Magistrates by section 6, chapter 601, of the Laws of 1895,
loud talking or boisterous behavior in or about any of said City
Magistrates' Courts or the offices appropriated to the use of the
magistrates or the clerks or other officers of said courts, or the
use of any contemptuous or other language, or the performance
of any act or the indulgence in any contemptuous or other behavior
within the precincts named herein, tending to interrupt the busi-
ness of any of said courts or to prevent the transaction of its
business in an. orderly, decorous and efficient manner, is pro-
hibited. As a further aid to the maintenance of order in and
about said Magistrates' Courts, all persons are prohibited from
accosting any visitor to any of said courts with a view to ascer-
taining the business or errand of said visitor in said courts, un-
less such inquiry be made by direction of the magistrate therein
presiding.

RULE xrv.

Bond of Police Cleik.
Before any police clerk shall enter upon the performance of
his duties, he shall give a bond in all respects complying with
the provisions and requirements of section 1395 of the Greater
New York charter as to police clerks ; he shall be charged with all
the duties and obligations, and shall possess like authority and
control in such court as devolve by law or the rules of the court
upon police clerks.

Eule 16] Special Eules of Peactice. 681

ETILE XV.

Whenever two or more persons, some being under and some
over sixteen years of age, are charged jointly with the commission
of a crime, all of such prisoners shall be arraigned before, and the
charge shall be heard and disposed of, by the magistrate presiding
in the court of the district wherein the offense was committed.
If, subsequent to the arraignment of any prisoner in the Chil-
dren's Court, it shall be discovered that he or she is over sixteen
years, such fact shall be disregarded and the magistrate shall
proceed with and hear or try the case.

Applications for the commitment of children for destitution,
want of proper guardianship, or for incorrigibility or depravity,
may be made to any magistrate presiding in the district courts,
but such magistrate shall not proceed in said court further than
to sign an order for investigation. The report thereon shall be
made to, and all subsequent proceedings shall be had in, the
Children's Court.

The magistrate presiding in any district court may entertain
complaints against children for any violation of law and issue a
summons or warrant therefor, but the same shall be made return-
able in the Children's Court. If the complaint in any such case
shall be reduced to writing, the clerk of the court wherein it is
taken shall send it and all papers in the case promptly to the
clerk of the Children's Court.

EULE XVI.

Amendments.

These rules cannot be amended except at a regular meeting of
the board, and by the consent of a majority of all its members.

582 BoAED City Magistrates, Fiest Division. [Rule 4

Rules Governing the Board of City Magistrates of the City
of New York (First Division).

RULE I.

The officers of this board shall consist of a president and a
secretary to be chosen as prescribed by law.

EULE II.

The president shall preside at all meetings. He shall make
all assignments and transfers of police clerks' assistants and
other subordinates of the board except police clerks, and per-
form such other duties as the board may prescribe. In case the
president shall not attend at the time appointed for the meeting
of the board, the secretary shall call the board to order and a
president pro tern, shall be chosen by the Board until the appear-
ance of the president. The president shall decide all questions
of order, subject to an appeal to the board, and may substitute
any other member to preside in his place during the meeting, or
any portion of it, at which the substitution shall be made.

RULE III.

The duties of the secretary of the board shall be to keep a
full and fair set of minutes of each and every meeting of said
board of city magistrates, to make, prepare and present to the said
board such annual statements or reports of the business done by
each of said city magistrates and of the Magistrates' Courts, as is
prescribed by law; to make and serve the proper notices of the
board for meetings, transfers, etc. ; to act as stationer and store-
keeper for the board, distributing all supplies of books, blanks
and other stationery to the several courts as such supplies may be
needed ; to attend to the printing of all blank forms for use in
said courts and by said board; to prepare the monthly payroll
of the board and its subordinates, and such other duties as the
board may direct.

RULE IV.

The officers of the board shall be chosen at the last regular
meeting of the board in January of each year, and shall hold office

Rule 9] Special Eules of Pkactice. '683

for one year, or until the selection of their successors. A ma-
jority of all the members of the board shall be necessary to a
choice.

RULE V.

A majority of all the members of the board shall constitute a
quorum for the transaction of all business, but a less number may
adjourn from time to time until a quorum is secured.

RULE VI.

The regular meetings of the board shall be held on the last
Monday of every month, excepting in the month of August, at 8
o'clock p. m., provided that when such last Monday in any month
shall fall upon a legal holiday, such meeting shall be held upon the
last Tuesday of such month.

RULE VII.

The president may, and upon the request in writing of three
magistrates shall, call special meetings of the board, but notice
for same shall be issued at least twenty-four hours before the time
for which said meeting is called, and shall state the object of such
meeting. No other business shall be transacted at such meeting
except by the unanimous consent of the members present.

RULE VIII.

The order of business at the meetings of the board shall be as
follows :

1. Eeading of the minutes of the previous meeting.

2. Reports of committees.

3. Motions and resolutions.

4. Unfinished business.

5. Miscellaneous business.

RULE IX.

The minutes of the proceedings of the board shall at all times
be opened for public inspection, under the care of the secretary.

584 BoAED City Magistbates, Fiest Ditision. [Rule 15

RULE X.

Upon tte question of the appointment of any police clerk or
other subordinate by the board, the members shall vote as their
names are called by the secretary, and the vote of each member
shall be recorded in the minutes. A majority of the whole board
voting together shall be required to appoint.

RULE XI.

Police clerks' assistants, stenographers, interpreters and attend-
ants may be removed, for cause after hearing, by a majority of
aE the members of the board voting for such removal. Xo such
removal may be made except at a regular meeting of the board,
a previous notice in writing of five days having been given by
the secretary to the accused subordinate, such notice specifying
the cause of his proposed removal, notifying him of his oppor-
tunity for an explanation in the presence of the board. The cause
of the removal of any such clerks^ assistant or other subordinate
shall be entered briefly in the minutes.

RULE xn.

All resolution shall be presented in writing, with the name of
the mover, and when presented they shall be read, but not con-
sidered until seconded.

RULE xni.

Every member who shall be present when a question is put shall
vote for or against the same, unless excused by the board.

RULE XIV.

The rules of the Legislative Assembly of the State of New
York shall govern the proceedings of this board, so far as the same
are applicable and not inconsistent with any of the regular rules
of the board.

RULE XV.

There shall be three standing committees, consisting of three
magistrates, each to be appointed by the president, to be known
as the Committee on Blanks and Forms, the Committee on Build-
ings-and Repairs, the Committee on Rules and Discipline.

Kule 16] Special Rules or Pkactice. 585

Blanks and Fonns.

This committee, of whicli the president shall be a member, shall
from time to time, as the occasion demands, draft and prepare all
blanks and forms for use in the courts.

Buildings and Repairs.

This committee' shall attend to all the court buildings, or parts
thereof allotted to the city magistrates, the necessity for repairs
or alterations therein and to procuring necessary work to be done.
On or before the first day of August in each year this committee
shall furnish the president with the estimated appropriation neces-
sary to make repairs for the ensuing year, with the items thereof,
so as to be included in the estimate to be furnished the Board of
Estimate and Apportionment.

Knles and Discipline.

This committee shall consider all matters affecting a change
in, or amendment of, the court rules or the board rules, and report
any proposed changes or amendments to the board. It will like-
wise hear all complaints against subordinates of the board referred
to it by the president. If such charges be of a nature warranting
a dismissal from service the committee shall reduce the evidence
to writing, which, with the findings thereon, shall be reported to
the board at a meeting for which a previous notice of at least five
days may be given to the accused as required by Kule XI, who
at the time shall be cited by said committee to appear before the
board.

ETJIE XVI.

In any case of prolonged physical disability of a magistrate
the president of the board is empowered to make a schedule as-
signing magistrates off duty to proportionate parts of the term
of the disabled magistrate, which schedule shall state the days
each magistrate shall hold court for one so disabled, and a copy
of such schedule, transmitted to the magistrates by the secretary,
shall have the same force and effect as a regular assignment.

In order that there may be an equitable distribution of such
work among all the magistrates the regular assignment may from
time to time be rearranged by the president.

586 Majgisteates' Cotjets — Second Division, [Eule 4

Amendments.
These rules cannot be amended except at a regular meeting of
the board, and by the consent of a majority of all its members.

RULES OF THE MAGISTRATES' COURTS OF THE CITY OF NEW YORK
(SECOND DIVISION).

KUIE I.

Assignments to the several District Courts shall be made to
cover a period of at least six months, and provision shall be made
for a rotation of magistrates holding said courts.

RULE n.

Time at Which Courts Shall be Held.
The several District Courts shall be opened every day at 9
o'clock a. m., and shall remain open until 4 o'clock p. m., except
on Saturdays, Sundays and legal holidays.

RULE ni.

Who to be in Attendance.
There shall be in attendance at such courts, at such times as
above specified, all the clerks and assistant clerks assigned thereto,
and all proper court officers, the court interpreter and the
stenographer, and any violations of the above rules shall be re-
ported to the board by the magistrate presiding.

RULE IV.
Ordei of Business.

The business of said court shall be conducted in the following
order :

1. Disposition of precinct returns.

2. Hearing returns on warrants and summonses.

3. Hearing and disposition of complaints.

4. Examination involving the commitment of children.

5. Examinations generally.

Kule 7] Special Rules of Pbactioe. 587

RULE V.
Manner of Keeping Records.
The police clerks shall keep, or cause to he kept, in each of the
courts the following books :

1. The court record.

2. Examination book

3. Bond book.

4. Book of fines.

RTJIE VI.

Whenever, in the opinion of a magistrate, he shall deem the
same necessary in any complaint or proceeding before him, he
shall apply (in -writing, by telegraph, or telephone, through the
captain of one of the precincts of his district) to the Board of
Police Commissioners for some intelligent and experienced per-
son connected with the police force to attend at the court to aid in
bringing the facts in such case before such magistrate.

RULE vn.

Fines.

All fines, if the same be paid before full commitment, shall be
collected by the police clerk in the district in which said fine was
imposed, and by him duly entered on the record, and in a separate
book kept in the court for that purpose. iSuch entry in the re-
cord shall contain the name of the defendant, offense, amount of
fine, when imposed, when paid and amount of payment.

The said police clerks shall, each of them, on or before the
fifth day of each month, prepare, or cause to !be prepared, a
written statement, which shall be verified under oath by said
clerks, and shall contain a full, just and true account of all the
moneys received hj them as fines or penalties for the preceding
month; and said clerks shall, on or before the day last aforesaid,
present such statement to the comptroller of the city of New
York, and shall pay over to him, in pursuance of section 17 of
the Laws of 1873, chapter 538, all moneys so received by them as
fines and penalties. Said police clerks shall also take receipts
for said moneys, which receipts shall be annexed to a duplicate
of said statement, and retained by said clerks as vouchers.

58i8 Magistrates' OoimTa — Second Division. [Bule 12

RULE vm.

Warrants.

"Warrants stall be issued to peace officers only and in tlie dis-
trict in which the offense is charged to have been committed;
search warrants, in the district in which the place to be searched
is situated.

RULE IX.

The name of any prisoner discharged and the nature of every
charge dismissed shall be entered on the records of the Magis-
trate's Court,

RTJIE X.

Duties of Assistant Clerks, etc

The assistant clerks and other assistants at each Magistrate's
Coujrt shall obey the reasonable directions of the police clerk
assigned to said court,, subject, however, to the proper orders of
the magistrate presiding therein and the Board of City Magis-
trates.

RULE XI.

The stenographers assigned for duty to the various courts in the
Second Division of the city of New York by the board at the
meeting held on the 1st day of February, 1898, may rotate with
the magistrates to whom they were on said day assigned.

RULE xn.

Taking BaiL

All bail bonds, recognizances and other obligations demanded
or received by any City Magistrate's Court shall be executed and
acknowledged before a proper officer by the party intended to be
bound thereby, and when executed in the presence of the magis-
trate taking them, he shall attest the same by his official signature,
and all sureties thereto, before being accepted as sufficient, shall
severally subscribe and make oath to an affidavit, in each case
naming his residence, which must be within the State of New
York, and specifying and locating sufficient property owned by
him, and that he is worth a sum at least twice the amount of the
obligation assumed by him, over and above all debts and liabilities

Rule 2] Special Rules of Peactice. 589

against him; and, if the magistrate has reasonable doubts about
the sufficiency of the surety offered, he shall, in addition to such
affidavit, make other inquiries or take additional proof as to the
identity and responsibility of such surety, and shall in all cases
reject any surety or sureties whom in his judgment does not ap-
prove as sufficient.

EUIE xin.

'No charge, complaint or person brought before one magistrate
shall be sent before another, except for adequate cause, to be fully
and at once entered upon the record kept by the police clerk and
signed by the magistrate.

ETIIE XIV.

Recognizances to Keep the Peace.

All recognizances to keep the peace must be filed with the clerk
of the Court of Special Sessions on or before the fifth day of every
month,

RiriE XV.

Amendments.

These rules cannot be amended, except at a regular meeting of
the board, and by the consent of a majority of all its members.

RULES OF THE BOARD OF CITY MAGISTRATES OF THE CITY OF NEW
YORK (SECOND DIVISION).

EXILE I.

The officers of this board shall consist of a president and a
secretary.

EULE n.

It shall be the duty of the president to preside at all the meet-
ings of the board.

590 EoAED City Magistrates, Second Division. [Rule 1

RULE ni.

The duties of the secretary of said board shall be to keep a full
and fair set of minutes of each and every meeting of said Board
of City Magistrates, and to make, prepare and present to the said
board such annual statements or reports of the business done by
each of said city magistrates, as is prescribed in section 14, chap-
ter 538, of the Lavs^s of 1873, and in section 1550, of chapter 410,
of the Laws of 1882, and also to give the proper notices to the
members of all meetings of the board, and such other duties as the
board shall direct.

RULE IV.

A majority of all the members of the board shall constitute a
quorum for the transaction of all business.

RULE V.

Special meetings of the board may be held upon the request,
in writing, of three members, but the notice for the same shall be
issued at least forty-eight hours before the time for which such
meeting is called, and shall state the object of such meeting. No
other business shall be transacted at such meeting except upon the
unanimous consent of the members present.

RULE VI.

The officers of the board shall be elected at the last regular meet-
ing of the board in December of each year, and shall hold office
until the election of their successors. A majority of all the mem-
bers of the board shall be necessary to a choice.

RULE vn.

The order of business at the meetings of the board shall be as
follows :

1. Reading of the minutes of the previous meeting.

2. Reports of committees.

3. Motions and resolutions.

4. Unfinished business.

5. Miscellaneous business.

Eule 11] Special Rules of Pkactice, 591

RULE VIII.

The minutes of the proceedings of the hoard shall at all times
be opened for public inspection, under the care of the secretary.

RULE IX.

Upon the question of the appointment of any clerk or clerks'
assistant, the members of the board shall vote as their names are
called by the secretary, and the vote of each member shall be re-
corded in the minutes, and the majority of the whole board shall
be required to appoint a police clerk, clerks' assistant, interpreter,
stenographer, and other necessary attendants, and may remove the
same, except police clerks, and the secretary shall record the vote
of each member of the board so voting.

RULE X.

'No assistant clerk, interpreter, or stenographer shall be removed
except at a regular meeting of the board, and upon a previous
notice of five days, in writing, given to him by the secretary,
specifying the cause of his proposed removal, and an opportunity
for an explanation by such assistant clerk, interpreter, stenogra-
pher, or attache of the court, in presence of the board. The cause
of the removal of any such assistant clerk, interpreter, or stenog-
rapher shall be noted in the minutes.

RULE XI.

It shall be the duty of the president to preside at all meetings
of the board, and in case he shall not attend at the time appointed
for the meeting of the board, tlie secretary shall call the board
to order, when a president pro tern, shall be appointed by the
board until the appearance of the president. The president shall
decide all questions of order, subject to an appeal to the board,
and may substitute any other member to preside in his place dur-
ing the meeting, or any portion of it, at which the substitution
shall be made.

692 BoAED City Magisteates, Second Division. [Enle 16

ETJIE xn.

The regular meetings of tbe board shall be held on the last
Wednesday of every month, excepting August, at 4 o'clock p. m.,
provided that vs^hen such last Wednesday in any month shall fall
upon a legal holiday such meeting shall be held upon the last
Thursday of such month.

ETJIE xxin.

AH resolutions shall be presented in vs^riting, vs^ith the name of
the mover, and when presented they shall be read, but not con-
sidered until seconded.

BUIE XIV.

Every member who shall be present when a question is put
shall vote for or against the same, unless excused by the board.
The ayes and nays shall be called and entered upon the minutes
at the request of any member.

EUIE XV.

The rules of the Legislative Assembly of the State of N'ew
York shall govern the proceedings of this board, so far as the
same are applicable and not inconsistent with any of the regular
rules of the board.

RULE XVI.

There shall be a standing committee, consisting of two magis-
trates, to be appointed by the president, to be known as the com-
mittee on blanks and forms, and who shall have charge of the
preparation of such blanks and forms as may, from time to time,
be necessary.

Eule 33] Special Rules of Pkactice. 593

Rules of the Court of Claims.

RULES OF PRACTICE.
General Provisions.

1. Application of rules of Supreme Court.

2. Substitution of attorney.

3. Interpleader, consolidation and new parties.

4. Service of notice by mail.

5. Extensions of time.

6. Discontinuance when counterclaim is pleaded.

7. Settlement and compromise.

8. Size of paper used for claims and briefs.

9. Use of number of claim.

10. Folioing motion papers.

11. Date of issue.

12. Calendar.

13. Duties of the clerk.

16. Notice of intention to file claim.

17. Appointment of guardian ad litem.

Pleadings Generally.

19. Porms for pleading.

20. Amendment of pleadings.

21. Filing amended pleadings.

22. Service of amended pleadings.

Statement of Claim.

24. Statement of claim generally.

25. Statement in claim of particulars of damage.

26. Statement in claim as to former audit or determination.

27. Statement in claim as to assignments.

28. Statement of claim under special statute.

29. Statement of claim in cases of appropriations.

30. Map and rough drawings to accompany claims.

31. Abstract of title to accompany claims in cases of per-

manent appropriations. Rescinded.

32. Subscription of claim.

33. Verification of claim.

594 State Couet of Claims. [Eule C8

34. Printing claims.

35. Folioing claims.

36. Filing of claim.

37. Filing copies of claim.

38. Dismissal of claim by Attorney-General.

Pleadings by State.

40. Pleadings by State.

41. Allegations in claim deemed denied by State without

pleading.

42. Verification of counterclaim by State.

43. Service of counterclaim.

44. Printing counterclaim.

45. Filing counterclaim.

46. Folioing counterclaim.

47. Dismissal of counterclaim by claimant.

Claimant's Reply.

49. Counterclaim admitted unless reply filed.

50. Reply to counterclaim.

51. Verification of reply.

52. Printing and filing reply.

53. Folioing replies.

Notices of Trial and Issue.

55. Notices of trial for regular terms.

56. Notes of issue for regular terms.

57. Notices for special terms.

Trial.

61. Subpoenas.

62. Attachment to compel obedience to subpoenas.

63. Punishment for contempt.

64. Discovery.

65. Hearing of claims generally.

66. Hearing of claims placed upon the calendar by Attorney-

General.

67. Dismissal of claims.

68. Proofs.

RuJe 4] Special Rules of Pbactice. 695

69. Eeferee to take proofs.

70. Taking testimony out of court.

71. Briefs.

72. Form of requests to find.

Judgment.

73. Judgments generally.

74. Form of judgment.

75. Judgment of dismissal for want of prosecution.

76. Judgment-roll after hearing.

77. Costs, fees and disbursements.

Appeals.

80. Appeals generally.

81. Case on appeal by stipulation.

82. Settlement and filing case on appeal.

83. Abandonment of case on appeal.

84. Proceedings upon abandonment of case on appeal.

85. Remittitur on appeal.

86. Order upon remittitur.

87. Costs of appeal.

Satisfaction of Judgment.

90. Satisfaction of judgment.

GENERAL PROVISIONS.

1. Application of rules and practice of Supreme Court. — Ex-
cept as otherwise provided in these rules or the Code of Civil
Procdure the practice in this court shall be the same as in the
•Supreme Court. (Code of Civil Procedure, § 265.)

3. Substitution of attorney. — Written notice of substitution
of attorney shall be filed with the clerk and notice thereof served
on the Attorney-General.

3. Interpleader, consolidation and new parties. — For provi-
sions relating to interpleader, consolidation and new parties, see
Code of Civil Procedure, § 281.

4. Service of notice hy mail. — Any notice required to be
served by the rules may be served by mail. If upon the claimant

^96 State Court of Claims. [Eiile 13

or his attorney, by directing the same to Bim at the post-office
address indorsed upon the claim, filed.

5. Extension of time. — The time within which an act is re-
quired to be done, excepting the time to file claims or to appeal,
may be extended by order of the court or a judge thereof.

6. Disconthmwnce where counterclaim is pleaded. — Where a
counterclaim is pleaded, the claimant cannot discontinue except
with the consent of the court.

7. Settlement and compromise. — For provisions relating to the
settlement and compromising of canal claims, see Code of Civil
Procedure, § 270.

8. Size of paper used for claims and other papers. — Where a
claim or other paper in a case is typewritten the size of the paper
used shall be substantially 8 inches by 13 inches and when printed
substantially 8 inches by 10% inches.

9. Use of number of claim. — The number given a claim by
the clerk shall be used by the claimant or his attorney upon all
papers in the case.

10. Polioing motion papers. — All motion papers exceeding two
folios in length shall be folioed.

11. Date of issue. — The date of issue is the date of filing the
claim, except that a claim passed on the call of the calendar shall
take as its date of issue the date of its passage.

12. Calendar. — 1. Unless otherwise directed by the court, the
clerk shall make a calendar of claims to be heard for each regu-
lar or special term. 2. The clerk shall place upon the calendar
(1) claims that have been properly noticed and in which notes
of issue have been filed; (2) claims which have been stipulated
on the calendar; (3) claims which may have been ordered thereon
by the court; and (4) those designated by the Attorney-General
in a written notice filed with the clerk before the calendar is
made up.

13. Duties of the Clerl: — 1. The clerk shall not receive or
file any claim, counterclaim or reply unless the same is verified
as prescribed in the rules. 2. The clerk shall not receive or file
a claim for a permanent appropriation unless the claim contains
a duplicate of the certified map containing description of appro-
priation served on claimant. 3. Each claim shall be numbered
by the clerk in the order of its filing, and an amended or supple-

Kule 19] Special Kules of Pbactice. 597

mental claim shall take the same number as the original claim.
4. The time when an amendment to a pleading is allowed shall
be entered by the clerk upon the minutes. 5. The clerk shall
deliver three copies of each claim to the Attorney-General or his
deputy, and shall retain the remaining copies for the use of the
court. 6. The clerk shall notify the claimant or his attorney of
the date of filing a claim and of its number. 7. The clerk shall
mail a copy of the calendar at least ten days before the beginning
of the session, to each claimant whose claim appears thereon,
or to his attorney. 8. The clerk shall keep on file in his office
each judgment-roll. 9. The clerk shall not file a case on appeal
or case and exceptions, unless the same is ordered filed as herein
provided. 10. The clerk shall enter all substitutions of attorneys
properly made. (As amended September ;)0', 1909.)

16. Notice of intention to file claim. — For provisions relating
to notice of intention to file claim see Code Civil Procedure,
§ 261.

17. Appointment of guardian ad litem. — A guardian ad litem
may be appointed by the court, or one of the judges thereof, as
provided by the rules of practice of the Supreme Court.

PLEADINGS GENERALLY.

19. Forms for pleading. — The following forms are submitted
as models for pleadings :

FORM A.

Claim for Damages for Negligence.
STATE OP NEW YORK — Court of Claims.

John Doe

against

State of New York.

1. This claim is for negligence of the State in constructing and maintaining
a bridge known as the Newport bridge over the old Erie canal in the village
of Warners, N. Y., and particularly in failing to provide said bridge with
suitable railings and to light the same.

598 State Couet of Claims. [Eule 19

2. On December 22, 1905, without any negligence on his part, claimant fell
off the west side of said bridge about the middle thereof and received the
following injuries: (State in detail injuries received.)

3. This claim has not been assigned and has not been submitted to any
other tribunal or ofBcer for audit or determination.

4. This claim was filed within two years and a notice of intention to file
within six months after the claim accrued as required by law.

5. Attached is a small rough drawing of the place of the accident.

6. The particulars of claimant's damages are as follows:

Dr. Bell's bill for services $50 00

Mary Smith's bill for nursing 40 00

St. Mary's Hospital expenses 50 00

Medicines 25 00

Personal suffering, etc 2, 000' 00

Total $2, 165 00

State of Xew Yobk,"|
County of Monroe, Iss. :
City of Rochester, J

John Doe, being diuly sworn, says : I am the claimant above named ; I have
read the foregoing claim and know its contents; the same is true to my
knowledge, except as to the matters therein stated to be alleged on informa-
tion and belief, and as to those matters I believe it to be true.

John Doe.
Sworn to before me, this

3d day of March, 1906.

John Smith,

Commissioner of Deeds (or other officer authorized to take affidavits).

FORM B.

Indorsement on Back of Claim.

STATE OF NEW YORK,

Court of Claims.

JOHN DOE

STATE OF NEW YORK.

CLAIM

Richard Roe,

Attorney for Claimant,

3 White Building,

Rochester, N. Y.

Eule 19] Special Rules of Peactioe. 699

FORM c.

CUiim for Permanent Appropriation,
STATE OF NEW YORK— Coukt of Claims.

John Doe

against

State of New York.

1. This claim is for permanent appropriation of land by the State for the
Barge canal pursuant to Laws of 1903, chapter 147, and a notice of such
appropriation served on claimant, December 26, 1905.

2. The premises appropriated are described as follows:
(Here insert description in detail.)

3. Attached hereto as a part of the claim is a duplicate of the certified
map containing description of appropriation served on claimant.

4. This claim has not been assigned and has not been submitted to any
other tribunal or officer for audit or determination.

5. The claim is filed for damages arising within two years after the cause
of action accrued.

6. The particulars of claimant's damages are as follows:

3 acres of land appropriated $2, 000

15 acres of remaining land damaged 1, 000

Total $3, 000

(For form of verification see Form A, and for indorsement see Form B.)

FORM D.

Claim for Temporary Appropriation.
STATE OF NEW YORK — Court of Claims.

John Doe

against

State of New York.

1. This claim is for the temporary appropriation from December 25, 1905,
to December 25, 1906, of land by the State in connection with the construc-
tion of the Barge canal, by the placing of earth, stone and timber thereon.

600 State Cotjet op Claims. [Eule 19

2. The premises owned by claimant are situated in the town of Perinton,
Monroe county, New York, consist of ten acres and the portion appropriated
consists of two acres.

3. This claim has not been assigned and has not been submitted to any
other tribunal or officer fox audit or determination.

4. Attached hereto is a rough sketch of the premises owned by claimant
and the portion appropriated.

5. The claim was filed within two years after the cause of action accrued.

6. The particulars of claimant's damages are as follows:

10 p«ar trees destroyed at $5 each $50 00

60 rods of fence at $1 per rod 60 00

2 acres of land, use thereof 10 00

Total .$120 00

(For form of verification see Form A, and for indorsement see Form B.)

FORM E.
Ctaim for Damages for Leakage of Canal.
STATE OF NEW YORK — Coubt op Claims.

John Doe

against

State of New York.

1. This claim is for the destruction of crops July IS, 1905, due to leakage
from the Erie canal by reason of the negligent construction and maintenance
of the banks thereof.

2. The premises owned by claimant are situated in the town of Perinton,
Monroe county, New York, consist of fifty acres and the portion affected by
the negligence of the State is about three acres lying adjacent to the canal.

3. This claim has not Ijeen assigned and has not been submitted to any
other tribunal or officer for audit or determination.

4. Attached hereto is a small rough sketch of the premises owned by
claimant and the portion damaged.

5. This claim Avas filed within two years and a notice of intention to file
the claim was filed within six months after the claim accrued as required
by law.

Kiile 29'] Special Rules of Peactice. 601

6. The particulars of claimant's damages are as follows :

20 acres of com totally destroyed at $30 an acre $600

10 acres of potatoes partially destroyed at $60 an acre 600

20 acres of meadow at $10 an acre 200

Total $1, 400

(For form of verification see Form A, and for indorsement see Form B.)

20. Amendments of pleadings. — Pleadings may be amended at
any time upon the consent of the court.

21. Filing amended pleadings. — The rules regulating the fil-
ing of original pleadings shall apply to amended pleadings, ex-
cept where the amendment is allowed during the course of the
trial.

22. Service of amended pleadings. — The rules regulating the
service of original pleadings shall apply to amended pleadings,
except whsre the amendment is allowed during the course of the
trial.

STATEMENT OF CLAIM.

24. Statement of claim generally. — The claim shall state con-
cisely the facts constituting the cause of aetioai.

25. Statement in claim of particulars of damage. — The claim
shall state the particulars of claimant's damage showing in detail
each item claimed and the amount of such item.

2'6. Statement in claim as to former audit or determiiudinn. —
The claim shall state whether it has heen submitted by law to
any other tribunal or officer for audit or determination.

27. Statement in claim as to assignments. — The claim must
state whether or not the claim has been assigned, and if assigned
the name and residence of each person interested in the claim.

28. Statement of claim under special statute. — When a claim
is filed under a special statute, the statute must be set out in full
in the claim.

29. Statement of claim in cases of appropriations. — A claim
for permanent or temporary appropriation must contain a specific
description of the property, showing its location and quantity.

602 State Couet of Claims. [Rule 41

30. Maps and rough drawings to accompany claims. — In eases
of permanent appropriation a duplicate of the certified map con-
taining description of appropriation served on claimant must ac-
company the claim and copies of the claim and in all other cases
a small rough sketch or drawing showing the location of the prem-
ises or place forming the basis of the claim.

31. Rescinded .September 30, 1909.

32. Subscription of claim. — The claim must be signed by the
claimant or his attorney giving his address.

33. Verification of claim^ — The claim must be verified in the
same manner as pleadings in the Supreme Court.

34. Printing claims. — The claim shall be printed except that
where the amount claimed does not exceed $200, typewritten
copies may be furnished.

35. Folioing claims. — All claims exceeding two folios in length
must be folioed.

36. Filing of claim. — The filing of a claim consists in deliver-
ing the same, during office hours, to the clerk at his office in the
Capitol at Albany, or in his absence to some person in charge of
the office.

37. Filing copies of claim. — The claimant shall at the time of
filing his claim, or within ten days thereafter, deliver to the clerk
twelve copies of his claim.

38. Dismissal of claim by Attorney-General. — The Attorney-
General may, upon ten days' notice, move to dismiss a claim on
the ground that the facts stated in the claim do not constitute a
cause of action, specifying the alleged defects in the claim.

PLEADINGS BY STATE.

40. Pleadings by State. — The State is not required to answer
a claim but when a counterclaim is necessary must plead and file
the counterclaim in conformity with the provisions relating to
claims so far as applicable.

41. Allegaiions in claim deemed denied by State without
pleading. — All allegations in a claim are treated on the trial as
denied bv the State.

Eule 55] Special Kules of Practice. 603

42. Verification of counterclaim hy State. — A counterclaim by
the State must be verified by the Attorney-General, or one of his
deputies.

43. Service of counterclaim. — Except by consent of the court
a counterclaim must be served upon the claimant or his attorney
at least ten days before the beginning of the term at which the
case is to be tried.

44. Pnnting counterclaim. — The provisions relating to print-
ing claims apply to a counterclaim.

45. Filing counterclaim. — Except by the consent of the court
a counterclaim shall be filed at least ten days before the beginning
of the term at which the case is to be tried. The provisions re-
lating to filing copies of claims apply to a counterclaim.

46. Folioing counterclaims. — A counterclaim exceeding two
folios in length must be folioed.

47. Dismissal of counterclaim hy claimant. — A counterclaim
may be dismissed on motion of the claimant for the like cause and
upon like notice to the Attorney-General as provided with refer-
ence to the dismissal of claims.

CLAIMANT'S REPLY.

49. Counterclaim admitted unless reply filed. — A counterclaim
is admitted unless a reply is filed and served as herein prescribed.

50. Beply to counterclaim. — Except by the consent of the
court a reply to a counterclaim must be filed within twenty days
after service thereof, but no reply need be made to a counterclaim
served within ten days of the beginning of the term at which the
claim is to be heard.

51. Verification of reply. — A reply must be verified in the
same manner as pleadings in the Supreme Court.

52. Printing and filing reply. — The provisions relating to
printing claims and filing copies apply to a reply.

53. Folioing replies. — A reply exceeding two folios in length
must be folioed.

NOTICES OF TRIAL AND ISSUE.
55. Notices of trial for regular terms. — Twenty days' notice
of trial must be given by mail to the Attorney-General for regular
terms.

604: State Couet of Claims. [Kule G8

56. Notes of issue for regular terms. — Notes of issue for reg-
ular terms must be filed with the clerk thirty days before the
opening of the term.

5Y. Notice for special terms. — C'laims placed on the calemdar
for special terms by the court shall be deemed to have been noticed
by both parties.

TRIALS.

&!. Subpoenas-. — In any claim pending before this court, either
party may issue to and serve subpcenaes upon witnesses to appear
and testify, and to produce books and papers, as the same are
issued and served in actions in the Supreme Court.

G2:. Attachment to compel ohedieoice to suhpcenas. — Either
party may apply for, and obtain from the court, an attachment to
compel obedience to subpoenas.

63. Punishment for contempt. — Either party may apply to the
court for punishment for contempt as in actions in the Sujweme
Court.

64. Discovery. — Either party to a pending claim may be com-
pelled, sufficient ground being shown therefor, (1) To give an in-
spection of any book, document, map, plan or other paper in his
possession or under his control relating to the merits of the ease,
or (2) To grant leave to make a copy thereof or (0 ) To make and
deliver a copy thereof or (4) To produce the same in court.

65. Hearing of claims generally. — ^A claim may be brought to
hearing at any regular term by the claimant, upon sei-vice of
notice of trial and filing of note of issue as herein provided.

66. Hearing of claims placed upon the calendar by Attorney-
General. — The Attorney-General may, without further notice,
move the hearing of .a claim designated by him to be placed upon
the calendar as herein provided.

67. Dismissal of claim. — The Attorney-General may, without
further notice, move the dismissal of a claim designated by him
to be placed upon the calendar.

68. Proofs.— A claim may be submitted upon proofs or upon
agreed facts.

Rule T2] Special Rules of Pkactick. 6i05

69. Referee to talce proofs. — The court may in any pending
claim, upon stipulation, or upon sufficient cause shown, appoint a
referee to take proofs and report to the court.

70. Taking testimony out of court. — ^The court or a judge
thereof may upon due notice to interested parties and upon suffi-
cient grounds at any time make an order for the examination out
of court of any person in an action or prospective action. The
proceedings subsequent to the making of such an order shall he
the same as in the Supreme Court.

71. Briefs.— Five copies of briefs which must be printed un-
less otherwise directed by the court, must be filed with the clerk
within the time allowed by the court.

72. Form of requests to find. — When requests to find are sub-
mitted the following form is recommended although not required.

FORM OF REQUESTS TO FIND.
Coimr OF Claims.

John Doe,

Claimant,
against

The State of New York.

- No. 6359.

The claimant respectfully requests the court to find as follows:

Findings of Fact.

Ist. In the years 1904 and 1905, the claimant was the owner in fee simple
and in possession of a farm situate partly in the village of Springwater and
wholly in the town of Springwater, Monroe county, N. Y., comprising
122.42 acres.

2d. The claimant continued to own and possess 101.53 acres thereof down
to March 13, 190G. the time of the filing of claimant's claim.

3d. On the 21st day of March, 1906, pursuant to the authority of the Barge
Canal Act, chapter 147 of the 'Laws of 1903, the State appropriated for pur-
poses of said canal, out of claimant's farm, 20.838 acres, particularly de-
scribed in his claim.

4th. Upon said land so appropriated were farm buildings, consisting of a
farm dwelling-house, two barns, a shop, poultry-house, well and cistern.

5th. Of the land appropriated a portion fronted upon a public street in the
village of Springwater, in which was installed the village light and water

606 State Coukt of Claims. [Rule 72

system and in front of which the sidewalk was graded. Such frontage was
about 950 feet upon the street, and was available and salable for building lots.
References :

Testimony of Eli Cochran, pp. 91, 96.

Testimony of Mr. Randolph, p. 110.

These lots are very desirable. Cochran, pp. 90, 91.

The vicinity was closely built up. Doe, p. 14; Randolph, pp. 109, 117-118.

Lots were readily salable. Randolph, pp. 117-118.

These lots should have been taken into account in appraising the prop-
erty and yet none of the State's witnesses as to value took any account of
them in arriving at their conclusions, but treated the whole 20.838 acres
taken simply as farm land.

6th. Upon the land taken were deposits of moulding sand extending over
an area of about twelve acres, and of an average depth of one and one-half
feet.

References :

Testimony of Doe, pp. 27-8; 31-2; 35, 36.

Testimony of Cochran, p. 145.
7th. The moulding sand in the soil on the land, at the time of the appro-
priation, was reasonably wortn thirty cents per cubic yard.
References :

Testimony of Doe, pp. 27, 28.

Testimony of Cochran, pp. 143-4.

It could be removed with practically no damage to the remaining land,
except the use of a small area while it was being removed.

Testimony of Doe, pp. 29, 144.

Claimant had sold $1,024.30 worth of this sand in two years from one-
half acre, just preceding the appropriation.

Testimony of Doe, p. 30.

The amount and value of this moulding sand upon the land taken is
nowhere disputed by the State.

Mr. Sanford concedes it to be a valuable asset and readily salable (p. 190),
yet he did not at all consider it in arriving at his estimate of the value of
the premises, nor did any of the State's experts, but they estimated the
land taken solely for ordinary farming purposes.

8th. The appropriation of the 20.838 acres left claimant's remaining land
101.582 acres, without buildings, water or access to any public highway, in
any manner, and thereby depreciated the 101.582 acres in value to the
amount of $10,052.
References :
The claimant's witnesses place this depreciation as follows:

Value before ^'alue after Depreeia-

Witness. taking. taking. tion.

Roach $10, OOO $5, 000 $5, 000

Tarbox 20, 000 5, 000 15. 000

Doran 12. 097 75 2, 539 75 10, 158

Rule 72] Special Eules of Peactice. 6-07

The state's witness, Filkins, placed the value of the remaining land after
the appropriation at $10 per acre (p. 198).

Dobson put it at $25 per acre (p. 202).

Scott put it at $25 per acre (p. 156).

■9th. The reasonable value of the 20.838 acres of claimant's land permanently
appropriated by the State was $23,000.

References :

Testimony of Doe, p. 55.

Considering the various elements of value clearly established and prac-
tically undisputed by the State, viz.:

Buildings $10, 332

Building lots 3, 000

Moulding sand 8, 625

16% acres garden 3, 300

$25, 284

Mr. Doe's estimate is fairly established.

The fact that the farm cost Mr. Doe $24,575 (pp. 78, 86), and that he
has been at such pains to improve it supports this view.

As to the general damagei caused Mr. Doe by this appropriation, the fol-
lowing is a table of values given by all the witnesses:

Value before
appropria-
Witness. tion.

Doe $35, 000

Cochran 15, 302

Scott 13, 250

Sanford 11, 600

Truax 12, 500

Dobson 12, 000

Conclusions of Law.
The claimant is entitled to an award against the State by reason of the
facts alleged in his claim, in the sum of $28,396, together with interest theroon
from the 21st day of March, 1905.

Samuel Woethington,

Attorney for Claimant.
(Addied September 30, 1909.)

Value after.

Damage.

$5,000

$30, 000

2,500

12, 802

2,500

10,750

4,600

7,000

1,000

11,500

2, 500

9,500

<i()S State Coikt of Claims. [Eule 82

JUDGMENT.

T3. Judgments generally. — For provisions relating to judg-
ments, see Code of Civil Procedure, § 269.

74. Form of judgm.ent. — The judgment sliall contain a recital
of (1) the filing of the claim, (2) its date, (3) number (4),
nature, (5) the amount claimed, (G) appearances and trial.

75. Judgment of dismissal for want of prosecution. — When a
claim is called and no one appears for the claimant, the same may
he dismissed for want of prosecution.

76. Judgment-roll after hearing. — The judgment-roll shall
consist of (1) the original claim and all amendments or supple-
mental claims and other pleadings, (2) certified copies of all
orders, (3) stipulations made in writing, (4) a certified copy of
the final order or judgment, (5) when a claim is for a permanent
apfiropriation, the map and description of such land furnished
by the State Engineer and Surveyor and (6) where an appeal is
taken, the notice of appeal and all papers required to be filed with
or served upon the clerk, the final order or judgment of the ap-
pellate court, the papers in all proceedings thereafter in this
court and a certified copy of the final judgment of this court.

77. Costs, fees and disbursements. — For provisions relating to
costs, fees and disbursements generally, see Code of Civil Pro-
cedure, section 274. For provisions relating to expense of pro-
curing testimony by commission, see Code of Civil Procedure,
§ 272.

APPEALS.

80. Appeals generally. — For provisions relating to appeals, see
Code of Civil Procedure, §§ 275-278.

81. Case on appeal by stipulation. — The claimant, or his at-
torney and the Attorney-General, may agree upon the facts in a
case and settle the case by stipulation, subject to the approval of
the court.

82. Settlement and filing case on appe-al. — Upon the settle-
ment of a case, the court or a judge thereof shall attach thereto
the statement " settled and ordered filed," and the case shall be

Hule 90] Special Eules or Peactice. 609

£led within ten days thereafter witli the clerk unless the time is
«xtended hy stipulation or order.

83. Abandonment of case on appeal. — If a case is not filed as
Tequired it shall be deemed to have been abond'oned.

84. Proceedings upon abandonment of case on appeal. — Upon
proof that a case has not been filed as required, an order may be
entered by the clerk declaring the appeal abandoned, whereupon
the party may proceed as if no case and exceptions had been made.

85. Bemiititur on appeal. — The remittitur on appeal shall be
filed with the clerk,

86. Order upon remittitur. — Upon application of either party
and upon the remittitur an order may be obtained making the
order or judgment of the appellate court the order or judgment
of this court.

87. Costs on appeal. — When costs on appeal are allowed, the
same may be stipulated by the parties, and if not stipulated, shall
be taxed by the clerk of this court in like manner as costs are
taxed in actions in^ the Supreme 'Court.

SATISFACTION OF JUDGMENT.

90. Satisfaction of judgment. — For provisions relating to sat-
isfaction of judgment, see Code of Civil Procedure, section 269.

THEOCOKE H. SWIFT,

Presiding Judge.
ADOLPH J. EODEKBBOK,
CHAELES H. MUEEAY,

Associate Judges.

610 State Boaed of Law Examinees.

Rules of the State Board of Law Examiners.

Office of the Seceetaet,

EooMs 41 and 42 Bbnsen Building,
Albany, N. Y.

Tte 'board tas adopted the following rules :

RUIE I.

Each applicant for examination must file with the secretary of
the board, at least fifteen days before the day appointed for hold-
ing the examination at which he intends to apply, the preliminary
proofs required by the " Rules for the admission of attorneys and
counselors-at-law," as adopted by the Court of Appeals, December
20, 1906, and amended to take effect June 1, 1908, from which it
must appear affirmatively and specifically that all the preliminary
conditions prescribed by said rules have been fulfilled, and also
proof of the residence of the applicant for six months prior to the
date of the said examination, giving place, with street and number,
if any, which rnust be made by his own affidavit. Said affidavit
must also state that such residence is actual and not constructive.
The board in its discretion may order additional proofs of resi-
dence to be filed, and may require an applicant to appear in per-
son before it, or some member thereof, and be examined concern-
ing his qualifications to be admitted to the examination. The ex-
amination fee of fifteen dollars must be paid to the treasurer at the
time the application for examination is filed.

To entitle an applicant to a re-examination, he must notify the
secretary by mail of his desire therefor, at least fifteen days before
the examination at which he intends to appear and file with him,
at the same time, his own affidavit stating that he is and has been
for the six months prior to such examination an actual and not
constructive resident of this State, giving the place of such resi-
dence, and street and number, if any.

Eule 4] Special Rules of Peactioe. 611

RUIE IL

Each applicant must be a citizen of tlie State, of full age; he
may be examined in any department, whether a resident thereof
or not, but the fact of his having passed the examination will be
certified to the Appellate Division of the Judicial Department in
which he has resided for the six months prior to his examina-
tion. He must, however, entitle his papers in the department in
which he resides.

Note. — An applicant must appear for examination in the department in
whieli he entitles his papers unless permission of the board otherwise be
granted ajt least fifteen days before the day appointed for holding the ex-
amination.

RULE ni.

In applying the provisions of Kules IV and V of the Rules of
the Court of Appeals, " For the admission of attorneys and coun-
selors-at-law," the board will require proof that the college or uni-
versity of which the applicant claims to be a graduate, maintains
a satisfactory standard in respect to the course of studies com-
pleted by him. In case the college or university is registered with
the Board of Regents of the State of ISTew York as maintaining
such standard, the applicant must submit to the board, with his
diploma or certificate of graduation, the certificate of the said
Board of Regents to that effect, w'hich will be accepted 'by this
board as prima facie evidence of the fact. iSuch certificate need
not be filed in cases where the Board of Regents, by a general
certificate, has certified to this board that the said college or uni-
versity maintains a satisfactory college standard leading to the
degree with which the applicant graduated. In aU other cases
the applicant must submit with his diploma or certificate of grad-
uation satisfactory proof of the course of study completed by him
and of the character of the college or university of which he claims
to be a graduate.

RULE IV.

The papers filed by each applicant must be attached together,
and there must be indorsed upon them the naxae of the applicant.
The papers must be entitled, " In the matter of the application

of for admission to the Bar." Each applicant

must state the beginning and the end of each term spent in a law

612 State Boaed of Law Examinees. [Eule 6

school, as well as the beginning and the end of each vacation that
he has had.

RULE V.

An applicant who has been admitted as an attorney in the
highest court of original jurisdiction of another State or country,
and who has remained therein as a practicing attorney for at least
one year, may prove the latter fact by his own affidavit, and must
present also a certificate from a judge of the court in which he was
admitted or from a county judge in said State, certifying that the
applicant had remained in said State or country as a practicing
attorney for said period of one year, after he had been admitted
as an attorney therein. The signature of the judge must be cer-
tified to by the clerk of the court or by the county clerk under the
seal of the court.

RULE VI.

The board will divide the subjects of examination in two
groups, as follows : Group 1, pleading and practice and evidence ;
'Group 2, substantive law. Each applicant will be required to
■obtain not only the requisite standard on his entire paper, but
also in group 1 to entitle him to a certificate from the board.
If he obtains the required standard on his entire paper but fails
to obtain the same in group 1, he will receive a pass card for
group 2 and will not be required to be re-examined therein. He
will be re-examined in group 1 at any subsequent examination
for which he gives notice as required by these rules.

WILLIAM P. GOODELLE,

President.

FRANK SULLIVAIsr SMITH,

ERAJSTKLIN M. DANAHEE,
Secretary and Treasurer State Board of Law Examiners.

Note. — Applicants should file their papers at the earlie»t possible moiaent;
amendable defects may be discovered, which can be corrected if attended to
promptly.

LOCAL RULES.

ALBANY COUNTY — SUPREME COURT.
Rule Adopted November Term, 1874.

Attorneys filing notes of issue are required to designate therein
•whether the cause is a cause for argument or trial, and the clerk
of the court, in making up the calendar, is required to designate
the same therein, and unless the notes state which are for aigu-
ment and which for trial, the clerk will not enter the cause in
the calendar.

Notes of issue not filed twelve days (exclusive of Sundays)
previous to the sitting of the court, will not be placed in the
calendar. The clerk's trial fee will invariably be charged to the
party bringing on the suit.

Rules for Trial Terms Adopted by Albany Bar March 4, 1880, and Revised by
Same December 15, 1897, and April i, igoi.

RULE I.

On -the first day of the Trial Term, after the grand and trial
jurors shall have been sworn, and other preliminary business dis-
patched, the justice presiding shall call the preferred and general
calendar of causes and mark the same in such manner as to the
court may seem just and proper. No cause shall be peremptorily
called for trial for the first day of the term, but the presiding
justice shall make up a day calendar for the second day composed
of the first six causes that shall be ready for trial in their
order. Any cause in which both sides shall be ready for trial may
be tried, with the consent of the presiding justice, on the first day
of any Trial Term, irrespective of its place upon the calendar,
except that if two such cases be ready, that case with the earlier
date of issue shall have precedence. If the trial of any such case

[613]

614 Albany County — Stjpeeme Ootjet. [Rule 7

begun upon the first day of the term shall not be completed upon
that day, the day calendar prepared for the second day shall not
be taken up until final disposition is made of such case so begun,

RiriE n.

The Trial Term shall be convened on the first day thereof at
11 o'clock a. m.

RULE ni.

Upon the entrance of the presiding justice, all persons in the
courtroom shall arise and remain standing until he is seated.

RULE IV.

It shall be the duty of the clerk daily, immediately after the
opening of court, to call the roll of all sheriff's officers assigned
to attend court, and keep a record of the attendance or absence
of all such officers.

RULE V.

It shall be the duty of the sheriff, under sheriff, or a deputy
sheriff especially appointed for that purpose, to be present during
all the sessions of the court, to direct all officers under him, and
to see that they are properly posted for duty and remain at their
posts, and execute all orders of the court. Each officer shall wear
a badge in plain sight and shall occupy during the entire session
of the court, unless otherwise assigned for duty, the post assigned
him by the sheriff.

RULE VI.

Any officer absent from his post, without permission from the
court or the chief officer having the direction of sub-officers, shall
be discharged for the term.

RULE VIL

It shall be the duty of the court officers to exclude all persons
from the bar of the court who are not either members of the bar,
clerks in law offices, students at law, newspaper reporters, or
parties in interest in a cause on actual trial; but clerks and
students must not occupy seats within the bar to the exclusion of
attorneys and counsel. This rule must be observed at all times,
without exception.

Hule 13] Local Rules of Peactice. €19

RTjiE vm.

It shall be the duty of the court officers to see that every one in
court is seated and to reserve the seats assigned to jurors, re-
porters and witnesses exclusively for them.

EUIE IX.

It shall be the duty of one of the court officers (to be specially
designated by the court) to look after and regulate the heating
and ventilation of the court-room; and such officer shall not be
lelieved from such special duty without the order of the court.

RTJIE X.

Causes on the general calendar marked for trial, if not re-
sponded to when called in the making up of the day calendar,
shall be passed ; when reserved, generally, they shall not be placed
on the day calendar for trial except upon notice of twenty-four
bours in writing, and shall then be put upon the day calendar,
at such place as the court shall direct.

RULE XI.

A cause upon the day calendar when reached must be tried or
go to the foot of the general calendar for the term, unless cause
l)e shown for a different disposition.

RULE xn.

At the opening of the court on each day the day calendar shall
be called through. Upon such call any cause not responded to by
either party shall be passed for the term, unless the case has been
specially marked by the court on the day calendar as one to be
retained thereon. If, on such call, a cause be responded to by
the plaintiff only, he may take judgment in default of the defend-
ant. If, upon such call, a cause be responded to by the defendant
only, he may take a dismissal.

RULE xm.

At 1'2 :3'0 p. m. on each day, except the first day of the term,
the day calendar for the succeeding court day shall be made, to
consist of not more than six causes. The calendar shall consist
of all the causes in the order in which they stand on the day

61 6 Allegany County — Sltpeeme Couet. [Rule 1

calendar not disposed of, and after them, of such causes as shall
be added, taken in the order in which they stand on the general
calendar.

RULE XIV.
In actions on contract, where the trial will not probably occupy
more than one liour, either party may apply on the first day of
the term, on a notice of four days, and on affidavits served, to
set down the issue as a short cause, and the same may be so
ordered in the discretion of the court.

RULE XV.

Short causes shall be called on Friday of each week. If the
trial shall occupy more than one hour, it may be suspended in the
discretion of the court, and the cause placed at the foot of the
general calendar.

RULE XVL

The justice holding the May Trial Term, 1906, and each Jan-
uary and May Term thereafter, will make an order at the opening
of the term directing the clerk to mail to each attorney whose
name appears as attorney in a cause on the calendar, which has
been at issue for more than two years, an order to show cause,
returnable at the opening of the court, on the second Monday of
the term, why such cause should not be stricken from the. calen-
dar, and such justice shall on that day call the calendar and strike
therefrom all such causes where, no reason is shown for their
continuance thereon.

ALLEGANY COUNTY.
Rules of the Supreme Court, Eighth Judicial District.

The following rules are hereby established for the Supreme
Court in Allegany, Cattaraugus, Chautauqua, Genesee, Niagara^
Orleans and Wyoming counties :

RULE I.
Order of Business.

At the opening of the term, the order of business, unless other-
wise directed by the presiding justice, shall be:
1. Impaneling and charging the grand jury.

Eule 3] Local Rules of Peactice. 617

2. Impaneling tlie trial jury.

3. Ex parte motions.

4. Contested motions.

5. General call of calendar.

6. Trial of jury causes.

7. Trial of equity causes.

RUIE II.
General Call of Calendar.

A general call of the calendar shall be made by the presiding
justice on the first day of the term.

Causes shall be marked " over the term " Txnder the following
circumstances, viz.:

1. Where a written stipulation to that effect is filed with the
clerk.

2. Upon oral stipulation of counsel in open court when the
cause is reached on the call.

3. When neither side moves the case when reached on the call.

4. The justice may so order for good cause shown.

Causes may be " reserved " for a future day under these cir-
cumstances, viz. :

1. Upon written stipulation to that effect filed with the clerk.

2. Upon oral stipulation of counsel in open court when the
cause is reached on the call.

3. Upon order of the justice for good cause shown.

Causes reserved for a future day shall obtain no preference over
earlier issues.

All reservations are made subject to the adjournment of the
term at an earlier date for lack of business, or other reason.

RULE ni.

First Day Calendar.

The day calendar for the first day of the term shall consist of
not more than ten jury causes, to be selected from causes where
the note of issue filed contains this indorsement in substance :

" To the Clerk : Take notice that I shall be prepared and ready
to try the within-entitled cause upon the first day of the term,
or as soon thereafter as counsel can be heard."

618 Ali^egant County — Supeeme Coubt. [Rule 5

Such selection shall be made to the clerk as follows, to wit:

(1) He shall select ten causes in the order of their date of issue
where the attorneys upon both sides shall have duly filed notes of
issue indorsed as above, and

(2) If there not be ten of such causes, the clerk shall complete
the number of ten, if possible, by selecting in like manner from
causes wherein one side shall duly file a note of issue indorsed as
above. Such causes so selected for the first day calendar shall have
preference over all other causes on the general calendar, so long
as it remains on said day calendar.

No reservation or delay of any of said causes shall be allowed
except for reasons occurring or coming to the knowledge of the at-
torney seeking the delay subsequent to the filing of the note of
issue by him.

Eight days before the opening of the term the clerk shall mail
the attorneys of record in the causes on such day calendar a copy
of said day calendar.

Upon the general call of the calendar on the first day of the
term the presiding justice may add to the day calendar for that
day such causes as shall then appear ready for trial.

RULE IV.
Subsequent Day Calendats.

At 2 o'clock p. m. of each day after the first day of the term
the clerk shall make a day calendar of eight causes for the next
day, which shall consist of the cases then on the day calendar and
additional causes taken in regular order from the general calen-
dar, but no cause " reserved " for a future day shall be placed on
the day calendar until the day for which it is reserved. Ifo mo-
tion to place a cause on such day calendar shall be necessary.

RULE V.
Trial of Causes on Day Calendar.

Causes on the day calendar shall be tried when reached unless it
appears to the satisfaction of the presiding justice that something
has happened since the case was placed on the day calendar which
prevents either party from proceeding with the trial, in which
event the justice may hold the case on the day calendar, restore it

Kule 9] Local Rules of Peactice. 619

to the general calendar and reserve it for a future day, or put it
over the term.

If, however, when a cause is reached on the day calendar,
neither party is ready for trial, and no satisfactory reason is given
for the failure, the case shall be passed and shall be placed on
calendars for subsequent terms as of the date when passed,

RULE VI.

Passing of Causes.

No cause shall be ^' passed " except as provided in Eule V.

EXILE VII.
Posting Day Calendars.

The clerk shall post the day calendar for each day in a con-
spicuous place in the court room. In Cattaraugus county the
clerk shall post the day calendar for each day in the post-office at
Salamanca, and in the post-office at Olean. In Chautauqua
county the clerk shall post the day calendar for each day in the
post-offiice at Jamestown, and in the postroffice at Dunkirk. In
Ifiagara county the clerk shall post the day calendar of each day
in the post-office at Niagara Falls, and shall telegraph or telephone
each day calendar to the Erie county clerk at Buffalo, to the Buf-
falo Express and to the Buffalo Courier.

EULE VIII.

Printing Calendars.

When a term is held solely for the trial of equity causes, such
causes only shall be placed on the calendar. Otherwise both jury
and equity causes shall appear on the calendar.

EULE IX.
Naturalization.

All applications of aliens to become citizens of the United
States shall be heard and final action had thereon on the first day
of the term at 2 o'clock p. m., and upon such other day or days in
the term as shall be designated by the presiding justice and at
such terms as may be specially designated for hearing applications
for the naturalization of aliens in any county.

620 Beoome County — Supreme Couet. [Eule 36

These rules shall be printed in the calendar of each term, and
all former rules are hereby abrogated.

Miscellaneous Rules.

Eule XX. — It shall be the duty of attorney by -whom the copy
pleadings shall be furnished for the use of the court on trial,
plainly to designate on each pleading the part or parts thereof
claimed to be admitted or controverted by the succeeding pleading.

Rule XXXVI. — Every cause placed on the calendar of a Gen-
eral Term, Circuit or Special Term, for the trial of equity cases,
shall be moved for argument or trial when reached in its order
and shall not be reserved or put over, except by consent of the
court ; and if passed without being so reserved or put over it shall
be entered on all subsequent calendars as [of] the date when
passed ; and no term fee shall be taxed therein for any subsequent
term.

The clerk is directed to enter in his minutes the title of every
case passed, and to keep in his office a list of passed causes, and
whenever a passed cause is placed upon the calendar, the word
" passed," followed by th& date when passed shall be entered
under the date of issue.

If two or more causes are passed upon the same date the right
of priority as between them on subsequent calendars, shall be
determined by the date of issue.

■Should the day appointed for opening any court fall upon any
public holiday, the court so appointed will be opened at the same
hour on the next succeeding day.

BROOME COUNTY — SUPREME COURT.

Special Terms for hearing of ex parte applications and
motions on consent will be held at Supreme Court Chambers at
Binghamton, Oneonta, Canastota and Elmira on Saturday of
every week, when the resident justice is not otherwise engaged,
except in July and August.

ISTo motions will be heard at Special Terms held with the Trial
Terms except in cases triable in the county where the Special
Term is held, or triable in an adjoining county not within the dis-

]ilule 4] Local Eules of Pkaotioe. 621

trict; or upon order to show cause granted by one of the justices
of the Supreme Court residing in the sixth judicial district.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. Notes
of issue filed shall state whether the action be triable with or
without a jury. Those cases triable with a jury shall be first
placed upon the calendar, and those triable without a jury shall
follow. The call of the calendar in all counties will be governed
'bj the day calendar rules, which follow.

Day Calendar Rules.

RULE I.

The first ten causes upon the calendar, in addition to such
causes as shall be moved to the head of the calendar as pref sirred
causes, shall constitute the day calendar for the first day, and each
day thereafter the same shall be made up of causes from those not
disposed of on the day calendar, and cases from the general cal-
endar in which a request to place upon the day calendar, stating
the number of the cause upon the general calendar shall be filed
with the clerk before 4 o'clock p. m. the previous day, by an
attorney who has noticed the cause for trial and such causes shall
he placed on the day calendar according to their priority upon the
general calendar.

RULE n.

Causes upon the day calendar including those upon the first
day calendar, not disposed of shall remain upon and retain their
priority on the day calendar until finally disposed of.

RUIE ni.

The clerk sihall make up the day calendar at 4 o'clock eaohi
day.

RTJLE IV.

Causes placed on the calendar must be disposed of when
reached and will not be reserved except for special reasons aris-
ing after they have been placed upon such day calendar and satis-
factory to the court. And after a case has been put upon the day
calendar no motion will be entertained to put the case over the
term except for causes arising after the cause is placed upon such
day calendar.

6'2'2 Become Oottntt — County Couet [Sule 2

RULE V.

All causes not placed on the day calendar will be considered asi
passed down to the last cause, which shall he regularly placed'
upon the day calendar unless reserved hy the court, or as herein-
after provided.

RULE VI.

■Attorneys shall not reserve causes generally, nor reserve them
to a day certain, except upon application made to and approved
by the court, before such cause shall be placed upon the day cal-
endar. When reserved to a day certain by permission of the
court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon
notice filed with the clerk before 4 o'clock of the preceding day,
by a party who has noticed said cause for trial.

RULE vn.

The num'ber of causes for the day calendar shall always be
under the direction of the presiding justice, and nothing in this
order contained' is to interfere with the moving of preferred
causes, or the taking of inquests.

BROOME COUNTY — COUNTY COURT.
RULE L

In all cases noticed and upon the calendar for argument, each
party at the time of the argument, or submission of the case, shall
deliver to the court a copy of his points, in writing, containing
a reference to the authorities cited by him, and accompanied by a
concise statement of the facts of the case which he deems
established.

RULE n.

Causes upon the calendar for argument at jury terms of the
court will be heard at any time when both parties are ready, and
the court is not otherwise engaged; but no default will be al-
lowed to be taken in such oases until after the petit jury has been
discharged.

Eule 3] Local Eules of Pkaotice. 623

RULE m.

At any time after tlie justice's return on appeal has been made
and filed in the office of the county clerk, either party may give
notice in writing of such filing to the adverse party, and any
application to the court for an amended or further return shall
be made within thirty days thereafter. In case no notice of the
filing of the justice's return in the clerk's office shall be given by
either party to the adverse party, the application to the court
for an amended or further return shall be made within ninety
days after the filing of the return. This rule shall take effect ten
days after its date, and in respect to appeals in which the returns
have already been filed shall have the same effect as though such
returns were filed ithis day.

CATTARAUGUS COUNTY — SUPREME COURT.

[For Supreme Court Rules applicable to Cattaraugus county,
see under Allegany county.]

Miscellaneous Rules.

Notes of issue are required to be filed in the clerk's office
twelve days before the sitting of the court. Unless this rule is
observed causes cannot be entered on the calendar.

The trial fee of one dollar is payable by the party bringing the
same on, and must be paid to the clerk when the case is called and
before the proceeding to trial.

CAYUGA COUNTY.
Order Establishing Day Calendar.
At a special term of the Supreme Court, held at the court
house in the city of Auburn, IST. Y., on the 15th day of December,
190'&
Present — Hon. Adelbert P. Eich, justice presiding.
In the matter of a rule to provide for a day calendar for trial
terms to be held in and for the county of Cayuga.

624 ■ Cayuoa County — Sttpeeme Couet.

Ordered, That hereafter and until otherwise directed the day
calendar of the first day of the term shall consist of ten causes,
to be selected as follows :

Attorneys may indorse upon their notes of issue, in substance,
as follows:

" To the clerk: Take notice, that I (or we) shall be prepared
and ready to move the within-entitled cause upon the first day
of the term, or as soon thereafter as counsel can be heard.

Every subsequent day calendar shall consist of ten causes
placed thereon in the order of their priority on the general
calendar, and shall be made up from causes a memorandum of
which sihall be left with the clerk by 2 :30 p. m. of the preceding
day and not disposed of, shall retain their priority on the day
calendar until finally disposed of.

Causes placed on the day calendar must be disposed of when
reached and will not be reserved except for special reasons satis-
factory to the court.

All causes not placed on the day calendar after the first day will
be considered as passed, down to the last cause, which will be
regularly placed upon the day calendar, and shall be placed on
subsequent day calendars as of the date of issue when so passed,
unless reserved by the court or postponed, as hereinafter provided.

Attorneys may arrange to postpone causes to a day certain, and
then put them on the day calendar, by a day's prior notice to the
clerk, but not to take precedence of other causes already appear-
ing on the day calendar, or such as shall be duly notified to the
clerk of earlier issues.

The number of causes for the day calendar shall always be
under the direction of the presiding justice.

And it is further ordered, That the clerk hereafter, at least five
days prior to the commencement of each Trial Term, make a list
of the ten causes constituting the day calendar for the first day
of the term, and mail a written or printed copy thereof to each
member of the bar of said county.

And it is further ordered, That no equity or Special Term
causes shall be placed on the Trial Term Calendar, or tried at a
Trial Term, except by direction of the court.

Local Rules of Practice. 625

And it is further ordered, Tkat the clerk cause a copy of this
order to be printed in all the Trial Term calendars hereafter
prepared for said county.

Notice to Attorneys.

lN"oteg of issue are required to be filed in the clerk's office
twelve days 'before the sitting of the court. Unless this rule is
observed, causes cannot be entered on the calendar.

CHAUTAUQUA COUNTY — SUPREME COURT.

[For Supreme Court Eules applicable to 'Chautauqua county,
see under Allegany county.]

Miscellaneous Bules.

itf otes of issue are required to be filed in the clerk's office twelve
days before the sitting of the court. Unless this rule is observed
causes cannot be entered on the calendar.

The calendar fees must accompany the notes of issue filed with
the county clerk, without which notes of issue liable therefor
cannot be placed upon the calendar.

The trial fee of one dollar is payable by the party bringing the
same on, and must be paid to the clerk when the case is called and
before proceeding to trial.

CHEMUNG COUNTY — SUPREME COURT.

■Special terms for the hearing of ex parte motions and motions
on consent vsdll be held at Supreme Court chambers at Bingham-
ton, Norwich and Oneida, on Saturday of every week, when the
resident justice is not otherwise engaged.

2^0 motions will be heard at Special Terms held with the Trial
Terms, except in cases triable in the county where the Special
Term is held, or triable in an adjoining county not within the dis-
trict; or upon order to show cause granted by one of the justices
of the Supreme Court residing in the sixth judicial district.

626 Chemung Countt — Stjpeeme Couet. [Rule ©

Day Calendar Rules.

In the Matter of Day Calendar.

Ordered that a day calendar be made up by the clerk, for Cir-
cuit Court, in this county, in the manner following:

First: The first ten causes upon the calendar, in addition to
such causes as shall be moved to the head of the calendar as
preferred causes, shall constitute the day calendar for the first
day, and each day thereafter the same shall be made up of causes
from those not disposed of on the day calendar, and cases from the
general calendar in -which a request to place upon the day calen-
dar, stating the number of the causes upon the general calendar
shall be filed with the clerk before 4 o'clock p. m., the previous
day, by an attorney who has noticed the cause for trial, and such
causes shall be placed on the day calendar according to their
priority upon the general calendar.

Second: Causes upon the day calendar, including those upon
the first day calendar, not disposed of shall remain upon and
retain their priority on the day calendar until finally disposed of.

Third: The clerk shall make up the day calendar at 4
o'clock each day.

Fourth: Causes placed on the calendar must be disposed of
when reached, and will not be reserved except for special reasons
arising after they have. been placed upon such day calendar and
satisfactory to the court. And after a case has been put upon
the day calendar no motion will be entertained to put the case over
the term except for causes arising after the cause is placed upon
such day calendar.

Fifth: All causes not placed on the day calendar will be con-
sidered as passed down to the last cause, which shall be regularly
placed upon the day calendar unless reserved by the court, or as
hereinafter provided.

■Sixth : Attorneys shall not reserve causes generally, nor reserve
them to a day certain, except upon application made to and ap-
proved by the court, before such cause shall be placed upon the
day calendar. When reserved to a day certain by permission of
the court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon
notice filed with the clerk before 4 o'clock of the preceding
day, by a party who has noticed said cause for trial.

Eule 20] Local Rules of Peaotice. 627

Seventh: The niunber of causes for the day calendar shall al-
ways be under the direction of the presiding justice, and nothing
in this order contained is to interfere with the moving of pre-
ferred causes, or the taking of inquests.

Ordered, That for the first day of each term of Supreme Court,
held in and for this county, until otherwise ordered, the day
calendar shall include the first fifteen causes upon the general
calendar; and the day calendar for each subsequent day shall con-
sist of fifteen causes placed thereon as provided in the order by
Justice Walter Lloyd Smith, relating to day calendars (as above
set forth).

CHENANGO COUNTY — SUPREME COURT.

RIJIE XX.

It shall be the duty of the attorney, by whom the copy pleading
shall be furnished for the use of the court on trial to plainly desig-
nate, on each pleading, the part or parts thereof claimed to be ad-
mitted or controverted by the succeeding pleadings.

Special Terms for the hearing of ex parte applications and mo-
tions on consent will be held at Supreme Court chambers at Bing-
hamton, Walton, Canastota and Elmira, on Saturday of each
week, when the resident justice is not otherwise engaged, except
in July and August.

'No motions will be heard at Special Terms held with the Trial
Terms except in cases triable in the county where the Special
Term is held, or triable in an adjoining county not within the
district; or upon order to show cause granted by one of the jus-
tices of the Supreme Court residing in the Sixth Judicial District.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. Notes
of issue filed shall state whether the action be triable with or with-
out a jury. Those cases triable with a jury shall be first placed
upon the calendar, and those triable without a jury shall follow.
The call of the calendar in all counties will be governed by the
day calendar rules.

628 'Chenango County — Sitpeemb Oouet. [Rule 7

Day Calendar Rules.

First. — The first ten causes upon tlie calendar, in addition to
such causes as shall be moved to the head of the calendar as pre-
ferred causes, sihall constitute the day calendar for the first day,
and each day thereafter the same shall be made up of causes from
those not disposed of on the day calendar, and cases from the
general calendar in which a request to place upon the day calen-
dar, stating the number of the cause upon the general calendar,
shall be filed with the clerk before 4 o'clock p. m. the previous
day, by an attorney who has noticed the cause for trial ; and such
causes shall be placed on the day calendar according to their
priority upon the general calendar.

Second. — Causes upon the day calendar, including those upon
the first day calendar not disposed of, shall remain upon and re-
tain their priority on the day calendar until finally disposed of.

Third. — The clerk shall make up the day calendar at 4 o'clock
each day.

Fourth. — Causes placed on the calendar must be disposed of
when reached, and will not be reserved except for special reasons
arising after they have been placed upon such day calendar, and
satisfactory to the court. And after a case has been put upon
the day calendar no motion will be entertained to put the case
over the term, except for causes arising after the cause is placed
upon such day calendar.

Fifth. — All causes not placed on the day calendar will be con-
sidered as passed down to the last cause, which shall be regularly
placed upon the day calendar unless reserved by the court, or as
hereinafter provided.

Sixth. — Attorneys shall not reserve causes generally, nor re-
serve them to a day certain, except upon application made to and
approved by the court, before such cause shall be placed upon the
day calendar. When reserved to a day certain by permission of
the court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon
notice filed with the clerk before 4 o'clock of the preceding day, by
a party who has noticed said cause for trial.

Seventh. — The number of causes for the day calendar shall
always be under the direction of the presiding justice, and nothing
in this order contained is to interfere with the moving of preferred
causes, or the taking of inquests.

Rule 39] Local Rules of Peactioe. €29

CORTLAND COUNTY — SUPREME COURT.
RULE XX.

It shall be tli© duty of the attorney, by whom the copy pleadings
shall be furnished for the use of the court on a trial, to plainly
designate, on each pleading, the part or parts thereof claimed to
be admitted or controverted by the succeeding pleading.

EXTRACT FROM RTJIE XXXIX.

Every cause placed on the calendar of a General Term, Circuit
or Special Term for the trial of equity cases, shall be moved for
argument or trial when reached in its order, and shall not be re-
served or put over except by consent of the court; and if passed
without being so reserved or put over, it sihall be entered on all
subsequent calendars as of the date when passed, and no term fee
shall be taxed therein for any subsequent term.

The clerk is directed to enter in his minutes the title of every
cause passed, the date when passed, and to keep in his office a list
of passed causes; and whenever a passed cause is placed upon a
calendar the word " Passed," followed by the date when passed,
^haU be entered under the date of issue.

If two or more causes are passed upon the same day, the right
to priority as between them on subsequent calendars shall be deter-
mined by the date of issue.

Special Terms, for the hearing of ex parte applications and
motions on consent, will be held at Supreme Court chambers at
Binghamton, Cortland, Canastota and Elmira on Saturday of
every week, when the resident justice is not otherwise engaged',
except in July and August.

E"o motions will be heard at Special Terms held with the Trial
Terms, except in cases triable in the county where the Special
Term is held, or triable in an adjoining county not within the
district; or upon order to show cause, granted by one of the
justices of the .Supreme Court, residing in the Sixth Judicial
District.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. ISTotes

630

■Cortland County — Supreme Court. [Eule 39

of issue filed shall state whether the action be triable with or
without a jury. Those eases triable with a jury sihall be first
placed upon the calendar, and those triaibl© without a jury shall
follow. The call of the calendar will be governed by the day
calendar rules, wMch follow.

Day Calendar Rules.

First. The first ten causes upon the calendar, in addition to
such causes as shall be moved to the head of the calendar as pre-
ferred causes, shall constitute the day calendar for the first day,
and eacb day thereafter the same shall be made up of causes from
those not disiposed of on the day calendar; and cases from the
general calendar in which a request to place upon the day calen-
dar, stating the number of the cause upon the general calendar,
shall be filed with the clerk before 4 o'clock p. m. the previous
day, by an attorney who has noticed the cause for trial, and such
•causes shall be placed on the day calendar according to their
priority upon the general calendar.

■Second; Causes upon the day calendar (including those upon
the first day calendar) not disposed of, shall remain upon, and
retain tiheir priority on, the day calendar until finally disposed of.

Third. The clerk shall make up the day calendar at 4
o'clock each day.

Fourth. Causes placed on the calendar must be disposed of
when reached, and will not be reserved except for special reasons
arising after they have been placed upon such day calendar, and
satisfactory to the court. And after a case has been put upon the
day calendar, no motion will be entertained to put the caso over
the term, except for causes arising after the cause is placed upon
such day calendar.

Fifth. All causes not placed on the day calendar will be con-
sidered as passed down to the last cause, which shall be regularly
placed upon the day calendar unless reserved by the court, or as
hereinafter provided.

Sixth. Attorneys shall not reserve causes generally, nor reserve
them to a day certain, except upon application, made to and
approved by the court, before such cause shall be placed upon the
day calendar. When reserved to a day certain by j>ermission of
the court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon

Kule 39]' Local Exiles of Pkactice. 631

notice, filed with the clerk before 4 o'clock of the preceding day,
by a party who has noticed siaid cause for trial.

Seveni;h. The number of causes for the day calendar shall
always be under the direction of the presiding justice, and
nothing in this order contained is to interfere with the moving
of preferred causes or the taking or inquests.

DELAWARE COUNTY — SUPREME COURT.
RUIE XX.

It shall be the duty of the attorney, by whom the copy pleadings
shall be furnished for the us© of the court on a trial, to plainly
designate, on each pleading, the part or parts thereof claimed to
be admitted or controverted by the succeeding pleadings.

EXTRACT FROM RULE XXXIX.

Every cause placed on the calendar of a General Term, Oircuit,
or Special Term for the trial of equity cases, sihall :be moved for
argument or trial when reached in its order, and shall not be
reserved, or put over, except by consent of the court; and, if
passed without being so reserved, or put over, it shall (be entered
on all subsequent calendars as of the date when passed, and no
term fee dhall be taxed therein for any subsequent term.

The clerk is directed to enter in his minutes the title of every
cause passed, the date when passed, and to keep in his office a list
of passed causes ; and whenever a passed cause is placed upon a
calendar, the word " Passed," followed by the date when passed,
shall ,be entered under the date of issue.

If two or more causes are passed upon the same day, the right
to priority as between them on subsequent calendars shall be
determined by the date of issue.

The clerk is directed to print in every calendar — Rule XX — •
the foregoing extract from Rule XXXIX — and the foregoing
Tulfe for carrying into effect Rule XXXIX, which is this 22d day
of March, 1881, adopted, and ordered entered in the minutes of
the court.

632 Ddlawaeb County — Supeemb Couet. [Rule 39

Day Calendar Rules.

Special Terms for the hearing of ex parte applications and mo-
tions on consent will be held at Supreme Court chambers at Bing-
hamton, Oneonta, Canastota and Elmira on Saturday of every
week when the resident justice is not otherwise engaged, except
July and August.

No motion will be heard at Special Terms held with the Trial
Terms except in cases triable in the county where the Special
Term is held or triable in an adjoining county not within the
district J or upon order to show cause granted by one of the
justices of the Supreme Court residing in the Sixth Judicial
District.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury.

Notes of issue filed shall state whether the action be triable with
or without a jury. Those cases triable with a jury shall be first
placed upon the calendar and those triable without a jury shall
follow.

The call of the calendar will be governed by the day calendar
rules, which follow:

First. The first ten causes upon the calendar shall constitute
the day calendar for the first day, and each day thereafter the
same shall be made up of ten causes from those not disposed of
on the day calendar, and causes from the general calendar in
which a request to place upon the day calendar, stating the num-
ber of the cause upon the general calendar, shall be filed with the
clerk before 4 o'clock p. m., the previous day, by an attorney
who has noticed the cause for trial, and such causes shall be placed
on the day calendar according to their priority upon the general
calendar.

'Second. Causes upon the day calendar, including those upon
the first day calendar not disposed of, shall remain upon and
retain their priority on the day calendar until finally disposed of.

Third. The clerk shall make up the day calendar at 4
o'clock each day.

Fourth. Causes placed on the calendar must be disposed of
when reached and will not be reserved except for special reasons
arising after they have been placed upon such day calendar and
satisfactory to the court. And after a case has been put upon the

Rule 1] Local Eules of Peactice. 633

day calendar no motion will be entertained to put the cause over
tlie term except for causes arising after the cause is placed upon
such day calendar.

Sixth. Attorneys shall not reserve causes generally, nor re-
serve them to a day certain, except upon application made to and
approved by the court, before such cause shall be placed upon the
day calendar. When reserved to a day certain by permission of
the, court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon
notice filed with the clerk before 4 o'clock of the preceding day,
by a party who has noticed said cause for trial.

Seventh. The number of causes for the day calendar shall
always be under the direction of the presiding justice, and noth-
ing in this order contained is to interfere with the taking of
inquests.

ERIE COUNTY.
Rules of the Supreme Court, Eighth Judicial District.
The following rules are hereby established for the Supreme
Court in Erie county, to take effect on the fijst day of January,
1909, excepting the provisions thereof with respect to the day
calendar for the first day of the first term to be held in 1909,
which shall take effect at the time therein prescribed for prepar-
ing such calendars and thereupon all former rules shall be deemed

abrogated.

Trial Terms for Jury Cases.

RULE I.

Terms.

There shall be three terms per annum for the trial of civil
causes, and each term shall be held in three parts which shall be
known as Parts I, II and III. These terms shall commence on
the first Monday of January and April and first Tuesday after
the first Monday of September, respectively, and the first and
second terms shall continue for twelve weeks each and the third
for sixteen weeks.

634 Eeie Ooubttt — Supeeme Couet. [Rule 4

Ttere shall be five terms per annum for the trial of criminal
causes to be known as Part IV. These terms shall commence on
the first Monday of February, April, June, and November, and
on the first Tuesday after the first Monday of September, respect-
ively, and shall continue four weeks if the busings warrant

EULE n.

Grand Jury.

A grand jury shall be drawn for each term, far the trial of
criminal causes as herein designated.

RULE ni.

Notes of Issue.
ISTotes of issue must specify the particular nature of and the
object of the action as required by -section 977 of the Code of
Civil Procedure, and the clerk shall not file a note of issue unless
it complies with this provision.

RULE rv.

Calendars of Civil Causes.

There shall be one general calendar and one trial calendar.

The general calendar shall remain on file in the office of the
county clerk and shall not be printed or used excepting for the
purpose of correcting the trial calendar until the trial calendar is
exhausted. It shall consist of all civil causes, triable by jury,
now undisposed of in this county, which have been duly noticed
for trial and in which notes of issue have been duly filed and
such additional causes as may from time to time be regularly
noticed for trial and in which notes of issue shall be duly filed.
Causes shall be placed upon such calendar according to the date
of issue, except that when at any term a case is passed, or sent to
the foot of the calendar, the date when the same shall be so passed,
or sent to the foot of the calendar, shall thereafter be regarded as
the date of issue of such cause in determining its position on any
calendar.

There shall be a trial calendar for each term which shall consist
of —

(1) All causes upon the general calendar which have not been
upon the trial calendar more than one year previous to the end

Hule 7] Local Rules of Peactick 635

of the last term ; provided, however, that a cause properly on the
trial calendar shall remain thereon until the end of the year un-
less tried or otherwise disposed of by order of the court.

(2) All other causes upon the general calendar in which either
party shall file a notice with the clerk at least twelve days before
the commencement of the term that the cause will be moved for
trial when reached.

Causes shall appear on th© trial calendar according to the date
of issue except as herein otherwise provided. Causes on the gen-
eral calendar but not on the trial calendar may be moved for trial
after all causes on the trial calendar shall have been disposed of,
but not before.

RULE V.
Printing Calendar.

The clerk shall prepare and cause to be printed for each term
a sufficient number of copies of the trial calendar for the ac-
commodation of the court and bar.

RULE VI.
Division of Calendar.

The calendar as thus printed shall be deemed divided and as-
signed to the respective parts as follows : The first hundred and
each successive third hundred causes thereafter to Part I, the
second hundred and each successive third hundred causes there-
after to Part II, and the third hundred and each successive third
hundred causes thereafter to Part III.

In correcting the calendar number of a cause, or in giving a
preferred or short cause a new position on the calendar, it shall
remain in the part to which it has been assigned by Eule VI, and
in rearranging its position or order reference shall be had only
to those causes which are assigned to th© same part with it.

RULE vn.

Day Calendar.

There shall be a day calendar which shall consist of thirty-two
causes for each part, the first eight of which, as ihe calendar
stands .at the close of court on each day, exclusive of the case on
trial, shall be knovm as ready causes and shall be subject to be

6i3!6 Eeie Cotjntt — Supeeme Coukt. [Kule 7

called for trial at any time thereafter when reached in their order
and when so called no excuse for delay or .postponement which was
known or could have been ascertained in the exercise of due dili-
gence before the cause became one of the firat eight on the day
calendar shall be accepted ; but if such an excuse be presented by
either party, the cause may be further held, restored to the trial
calendar or marked jover the term on such terms as may be im-
posed by the court.

If a cause be not moved for trial when reached on the day
calendar, it shall be passed and ordered to the foot of the trial
calendar.

The remaining twenty-four causes on the day calendar shall be
known as held causes and shall be deemed held until they respec-
tively fall within the first eight at the close of any day, as herein
provided.

After a cause has been moved' onto the day calendar, either
party may, at any time before it becomes a ready cause, apply to
the court by consent or on such notice as the court may prescribe,
and on good cause shown arising after it was so moved, to have
it further held, restored to the trial calendar or put over the term,
and a party who did not move it onto the day calendar may, within
the same time, likewise apply, on good cause shown existing at the
time it was so moved, but at that time unknown to the party mak-
ing the application or arising after, to have it further held, re-
stored to the trial calendar or put over the term, and the court
may make such order thereon and on such terms as justice
requires.

In making up the day calendar, causes shall not be called sepa-
rately, excepting as herein otherwise provided, but the justice pre-
siding on the first call will invite the moving of preferred causes
and if a sufiicient number of preferred causes for a day calendar
be not obtained, then the moving of short causes vrill be invited,
and if a sufficient day calendar shall not be thus obtained the
justice presiding will inquire whether any of the first fifty causes
on his part of the trial calendar are moved, and so on by fifties
until a sufficient day calendar be obtained. Each succeeding cal-
endar call shall be resumed from the highest number reached at the
preceding call, and no cause bearing a lower number than the high-
est number reached at the preceding call shall be again called until

Eule 10] Local Etjles of Practice. 637

the entire calendar in that part is exhausted unless it shall have
heen reserved until a later day ; but a cause bearing a lower num-
ber and reserved to a date later than the preceding call may be
moved on the first call on or after the date to which it has been
reserved. After an opportunity to move every cause onto the day
calendar shall have been tbus afforded, the same course and order
shall be repeated and observed on subsequent calls of the calendar,
excepting that preferred and short causes sball lose their right
to a preference and shall have only the right to be moved accord-
ing to their respective calendar numbers unless moved onto the
day calendar at the first opportunity or duly held or reserved
until a later day.

If at any time a sufficient number of causes for a day calendar
be not obtained by following the course herein prracribed the jus-
tice presiding may in his discretion give notice that any subse-
quent call shall be made by tbe calendar numbers, and, if so, tben
every cause not moved when called shall be passed and ordered to
the foot of the calendar unless good cause be shown for not mov-
ing it.

RTjiE vm.

Correcting Calendar.

On the Thursday preceding the opening of each term, at 2
o'clock p. m., applications for tbe correction of the calendar shall
be made to the justice presiding at Special Term, before the com-
mencement of the calendar call.

RULE IX.
Preferences.

Motions for preferences under any provision of law must be
made immediately after the calendar shall have been corrected.

RULE X.

Definition of "Over."

A cause shall be marked " over," which shall mean over the
term, only where a written stipulation to that effect is filed with
the clerk or the court so orders at any time on consent or for good
cause shown. A cause may be reserved Jor a later day in the
term upon written stipulation to that effect filed with the clerk or

638 Eeie County — Supreme Couet. [Rule 14

by order of the court at any time on consent or for good cause
shown, and shall be marked accordingly; but a cause shall not be
so reserved more than twice.

RULE XI.
Fiist Day Calendar.

'On the Thursday preceding the opening of each term, at 2
o'clock p. m., the justice presiding in Special Term shall prepare
the first day calendar for each part as provided in Rule VII.
Causes remaining untried on the last day calendar of the preced-
ing term shall have a preference over all other causes in making
up the first day calendar.

RuiE xn.

Su1)sequent Day Calendars.

Thereafter from time to time whenever the number of causes
on the day calendar of any part, exclusive of the cause on trial,
shall be sixteen or less, causes shall be added to complete the day
calendar. Such additions shall be made in Part I at 10 a. m., in
Part II at 12 m., and in Part III at 2 p. m.

RUIE xm.

Posting Calendar and Notices of Calendar Calls.

The clerk in each part shall post the day calendar for each day
and shall also post notice of the time when additions are to be
made thereto and shall specify therein the highest number reached
on the last call of the calendar.

RUIE XIV.

Short Causes.

A short cause is defined as one which may be fully and fairly
tried within two hours. Such causes are entitled to a preference
in trial next after the causes entitled to a preference under the
Code. Notice of intention to move a cause as a short cause shall
be served in writing on the adverse party at least fourteen days
before the commencement of the term, or such notice of intention
may be indorsed on the notice of trial served. At the time the
first day calendars are made up a party who has duly served such

Kule 17] Local Eules of Peactice. 639

notice of intention may move the cause as a short cause. Such
motion must be based upon the affidavit of the moving party,
which shall state that the notice of intention was duly served, the
date of the joinder of issue, the nature of the issue, and the facts
and circumstances which render it probable that the cause can be
tried in two hours. Annexed to such affidavit must be a copy of
the pleadings. The affidavit read in opposition to such motion
shall set out the facts and circumstances which render it unlikely
that the case can be tried in two hours. If the motion be granted,
the case shall be entitled to the preference above provided. If
the motion be denied, it cannot be renewed without leave of the
court.

A cause can be moved as a short cause only at the first term for
which it is noticed for trial. A cause once designated as a short
cause shall remain such until disposed of or until it loses its pref-
erence as provided in Kule VII.

RULE XV.

Transfei of Causes.

A justice presiding in either part may, upon request of the

justice presiding in another part, transfer to such other part one

or more causes for trial, and shall send to another part any cause

in which he is disqualified to sit.

RULE xvr.

If in any year the day herein prescribed for opening court shall
be a legal holiday, the court shall open on the next day thereafter.

TRIAL TERMS WITHOUT A JURY — EQUITY.

RULE xvn.

General Calendar.

The general calendar shall consist of all cases triable by the
court without a jury now undisposed of, and such cases as may
from time to time be regularly noticed for trial and note of issue
filed as required by section 977 of the Code, and shall be made
up in the manner prescribed by Rule IV, and shall remain on
file in the office of the county clerk, and shall not be printed.

640 Eeie Cotjntt — Stjpeeme Cottet. [Rule 22

EULE xvni.

Trial Calendar.
The trial calendar for each term shall be made up in the same
manner as is provided by Eule IV for jury terms, and all the
provisions of said Rule IV shall apply to the making up of a
trial calendar for terms held without a jury.

RULE XIX.

Trial Calendar — Printing.

The clerk shall prepare and cause to be printed the necessary

number of copies of the trial calendar at least five days before

the commencement of the term as provided in section 977 of the

Code.

RULE XX.

First Day Calendar.

'At 2 o'clock p. m. on Friday, immediately before the commence-
ment of each term the justice holding the Special Term for the
hearing of motions shall make up a day calendar of ten causes for
the first day of the term. Motions for preference under any
provision of law must be made before the call has begun. Causes
shall be called in the order in which they appear on the trial
calendar. The provision of Rule VII with reference to delay or
postponement or failure to move a cause for trial when reached
on day calendar, also the provision of Rule X, shall apply.

RULE XXI.
Subsequent Day Calendars.

[After the commencement of the term day calendars shall be
made up in the manner provided by the presiding justice, and the
clerk shall post notice of such order, and shall also post the day
calendar for each day.

RULE xxn.

Trial of Causes on Day Calendar.
All the provisions of Rule IX relating to the trial by jury
causes shall apply to the trial of causes without a jury.

Eule 25] Local Eules of Peactice. 641

SPECIAL TERM FOR MOTIONS.

RULE XXIII.

When Held.

The Special Term for motions shall be held each day of the
year except Saturdays and legal holidays and except during the
month of August. The court may be adjourned to one or more
days in August in the discretion of the justice holding such term
in the month of July and ex parte business only shall be heard
upon such adjourned days unless the justice presiding shall other-
wise direct. Motions may be noticed for any day when said
court sits.

If a justice for any reason fails to attend such Special Term
on any day, all motions noticed for such day shall be deemed held
until the next day at which a justice shall attend.

RULE XXIV.

Matters Heard.

At Special Term shall be heard all ex pariie and litigated mo-
tions, all special proceedings where an issue of fact is not formally
joined by pleadings, all arguments on demurrers, all appeals upon
the law from the Municipal Court of Buffalo, and all other mat-
ters usually presented at Special Terms.

ArgTiments on demurrers and appeals upon the law from the
Municipal Court of Buffalo will be heard on Wednesdays of each
week, except during the month of August.

RTTLE XXV.

Entering and Certifying Orders.

Attorneys shall furnish the clerk of the Special Term at the
time of the decision of any matter by such Special Term with a
memorandum of the decision made, and the clerk shall not enter
or certify any order unless and until his minutes justify such
entry or certificate.
41

642 Ekie Couj^jty — Supeeme Couet, [Eule 27

RTJIE XXVI.

Naturalization.

All applications of aliens to become citizens of the United
States must be beard and final action had thereon at such Special
Term at 10 o'clock a. m. on the first Wednesday of each month
when said court is regularly in session, which days are hereby
designated as stated days for such applications under Act of
Congress, approved June 26, 1906.

If upon any stated day the calendar of such applications
remains undisposed of, the justice presiding may continue the
hearing on the following day or any other day of the court to
which he shall adjourn the same. If the applicant fails to appear
upon the call of the calendar, the application may be dismissed
without prejudice to a renewal of the same.

RULE xxvn.

Application fot Divorce.

First. — In all applications made in Erie county for judgment
on default of the defendant, in actions for the annulment of a
marriage, or the separation or divorce of the parties, the com-
plaint, proof of service of the summons, and of defendant's de-
fault, shall be first submitted to the clerk of the special term for
examination.

Second. — After the taking of testimony on the default of the
defendant in any action for the annulment of a marriage, or for
the divorce of the parties, the proposed findings and interlocutory
judgment shall be submitted to the clerk of the court at Special
Term.

Third. — It shall be the duty of such clerk to examine all papers
so submitted, and to cause the same to be made correct in form
and, when so made, to submit the same to the justice of this court
having in charge the case to which such papers relate.

Fourth. — Applications for judgment on default of the de-
fendant, in actions for the annulment of a marriage, or the
separation or divorce of the parties, will be heard and proofs will
be taken on Tuesdays only at 10 o'clock a. m., and 2 o'clock p. m.,
unless otherwise ordered by the justice presiding.

Eule 30'] Local Kules of Peactice. 643

RULE xxvni.

Chamber Business.

The justice holding Special Term for motions shall attend to all
chamber business during his assignment to such Special Term.

Applications for chamber orders sent by mail wiU be addressed
to the " Justice holding Special Term,"

Miscellaneous.

EULE XXIX.

Criers.

The crier of each part of the court shall be in attendance
promptly at -the hour of opening and closing gf the court, and
shall make the required -proclamations. He shall have the im-
mediate supervision of the officers in attendance upon the court,
and shall assign them to their respective duties. When the court
shall adjourn or take a recess, it shall be his duty and the duty of
all attendants and officers of the court to see that the public in
attendance remain in their seats until the court and jury retire
from the. room. It shall also be his duty to designate one or
more officers to attend upon the justice presiding when he enters
the court room to open court. He shall report to the justice pre-
siding all officers who are absent from duty, or who are guilty of
any dereliction or fault, and shall at all times during the session
of the court be in attendance upon the same, unless excused by the
justice presiding.

RULE XXX.

OfScers.

The sheriff shall provide not more than four officers for Part I,
and not more than four officers for Part II, not more than three
officers for Part III, and not more than six officers for Part IV,
to attend the court, unless otherwise ordered by the justice holding
the term.

These rules shall be printed in every trial calendar hereafter
prepared by the clerk of this court. .

644 Eeie County — Supeeme Court.

Code and General Rules of Practice.

Attention of attorneys is especially directed to the following
provisions of the Code and General Rules of Practice and to the
special rules of this court.

Section 977. Preparation of Calendar. — The clerk must enter
the cause upon the calendar according to the date of issue. The
clerk must prepare the calendar and have the necessary copies
ready for distribution at least five days before the commencement
of the term. * * * In the county of Erie when a party has
served a notice of trial and filed a note of issue for a term at
which the case is not tried it is not necessary for him to serve
a new notice of trial or file a new note of issue for a succeeding
term ; and the action must remain on the calendar until it is dis-
posed of.

Section 789. Preference of Certain Actions iy the People. — ■
An action by the people to recover money or property of the State
or of a public or governmental interest wrongfully obtained or
converted, or to recover damages for such unlawful obtaining or
converting, is entitled to a preference over all other business
irrespective of its place on the calendar.

Section 791. Preference Among Civil Actions. — Civil causes
are entitled to a preference among themselves in the following
order, viz. :

1. An action brought by or against the People of the State or
a State ofiicer, or brought by the people in the relation of a party.

2. An action in which a board of ofiicers exercising statutory

powers for the protection of public health or public or private

property is a party.

* -X- ******* *

5. An action in which an executor or administrator or testa-
mentary trustee or an infant or trustee of an infant or a receiver,
or the controller of the currency, or a trustee in bankruptcy, or
general assignee for the benefit of creditors, or committee of a
lunatic, or a creditor of a deceased insolvent debtor suing in be-
half of all creditors is the sole plaintiff or sole defendant; an
action for the construction of a will, or to determine the validity

Local Eules of Practice. 645

of the probate of a will in which the administrator with the will
annexed or the executor of the will is joined as plaintiff or de-
fendant with other parties.

6. An action for dower when the plaintiff has no other suf-
ficient means of support; an action for partition.

7. An action against a corporation or joint stock association
issuing bank notes or other circulating medium or by or against a
receiver of such corporation or association; an action in which a
county or town is sole plaintiff or defendant.

8. An action against a corporation founded upon a note or
other evidence of debt for the absolute payment of money; an
action upon an undertaking giving an appeal to the court of
Appeals.

9. An action against a sheriff in his official capacity, or an
action by a sheriff or late sheriff to recover on bond or undertaking
given to him in his official capacity.

10. A case entitled to preference by the General Rules of
Practice or special order of the court.

11. An action for libel or slander.
**********

13. An action for absolute divorce in which temporary alimony
has been granted.

Section 793. Preference, Hov} ''Attained. — In the county of
Erie party claiming preference must serve on opposite party, with
his notice of trial, a notice that an application wdll be made to the
court at the opening thereof or at such other time as shall be pre-
scribed by the general or special rules of practice for leave to
move the same as a preferred cause, and if the right to a prefer-
ence depends on facts which do not appear in the pleadings the
notice must be accompanied by affidavits showing such facts.

Code Sections and General Rules of Practice Relating to Trials.

Section 3301. Clerk's Fees. — The clerk is entitled to a fee of
one dollar from the party bringing on an action for trial.

Section 3313. Jurors' Trial Fee. — A trial juror is entitled to
a fee of twenty-five cents for each cause for which he is em-
panelled, to be paid by the party noticing the cause for trial; or

646 Eeie County — Supkeme Cotjet.

if it is noticed by more than one party, by the party which the
court directs to pay it.

Section 980. Dismissals and Inquests. — Either party who has
served the notice may bring the issue to trial and in the absence
of the adverse party, unless the judge holding the term for good
cause otherwise directs, may proceed with the cause and take a
dismissal of the complaint, or a verdict, decision or judgment, as
the case requires. An inquest for want of an affidavit of merits
cannot be taken when the answer is verified.

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 witness, who shall not repeat the an-
swer or answers of such witness at the time he shall be under ex-
amination. 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.

Section 981. Pleadings to he Furnished Court. — When the
issue is brought to trial by the plaintiff, he must furnish the
court with copies of the summons and pleadings and of the offer,
if any has been made. When the issue is brought to trial by the
defendant and the plaintiff does not furnish these papers, they
must be furnished by the defendant.

Bute 19. MarJcing Pleadings. — It shall be the duty of the
attorney by whom the copy pleadings shall be furnished for the
use of the court in a trial to plainly designate on each pleading
the part or parts thereof claimed to be admitted or controverted
by the succeeding pleadings.

Eule 4] Local Rules of Peactioe. 647

ERIE COUNTY — COUNTY COURT.

(Adopted January 20, 1904.)

ETJLE I.

In all actions brought in the County Court, as a court of orig-
inal jurisdiction the general rules of practice adopted by the
Supreme Court shall 'be followed as far as the same are applicable.

EULE n.

Terms of this court for the hearing of nonenumerated motions
will he held at Room No. 21, at the City and iCounty Hall, in the
city of Buffalo, every morning commencing at 10 o'clock, excepting
during a regular term of the court, when a jury is in attendance,
and also excepting Saturdays, legal holidays and during the
month of August; During a regular term of the court attended
by a jury, nonenumerated motions will be heard each morning
from 9 :30 until 10 o'clock, and at the adjournment of the court
for noon hour. Contested motions will be heard on Monday
mornings only, except as may be otherwise directed by an order
to show cause. Applications for ex parte orders will not be enter-
tained during the trial of causes with a jury; such applications
must be made before the jurors are called in the morning or at
the time they are excused at noon ; but may be made by delivering
all papers to the clerk of the court in attendance, and the same
will be considered during intermission and then handed to the
clerk to be delivered to parties interested.

RULE in.

At 2 o'clock on the first day of each term of said court, the
general calendar wiU be called for the purpose of fixing days
when causes shall be placed during said term upon the day calen-
dar, and at 2 o'clock on each day the clerk will make up from
such causes a day calendar of ten causes for the next succeeding
day.

RULE rv.

Cases not moved when called upon the general or day calen-
dar may be dismissed upon the production and filing of proper
proof for that purpose. If not dismissed, or reserved for a future
day, such causes will be passed for the term.

648 Erie County — County Court. [Rule 2i

RULE V.

Causes not moved or reserved upon the call of the general
calendar, for three successive terms, will, be, by order of the court,
stricken therefrom, to be restored to the calendar only on motion.

RULE VI.

When causes are placed upon the day calendar they will retain
their places upon the same until they are tried or otherwise dis-
posed of.

RULE vn.

A party who fails to file a note of issue in any cause with the
county clerk will not be allowed to move such cause upon the
day calendar or control its disposition upon the general calendar ;
but when such cause is placed on day calendar by party entitled
so to do, the other party may have same control over the cause as
if he had filed note of issue, providing he has filed the proper
notice of trial. But in case he has failed to serve notice of trial,
he can only appear and participate in the trial whenever it is
moved for tri:.l by the party who has served the proper notice.

ERIE COUNTY — SURROGATE'S COURT.

The attention of attorneys is called to the following rules, es-
tablished to regulate the practice in this court, to take effect Feb-
ruary 15, 1897:

RULE L

Due proof of the service of a citation must be filed with the
clerk of the court, not later than 9 o'clock of the day on which
the citation is returnable, so that the clerk may certify to the court
that the service is in all respects regular; otherwise, the proceed-
ing will not be heard on that day.

RULE n.

All proceedings wherein residents of the city of BufEaio or
their attorneys appear will be first called at the opening of the

Rule 7] Local Eules of Piuctice. 649

court, each day. Proceedings wherein residents of the towns or
their attorneys appear, thereafter.

RULE m.

Appearances by or on behalf of a party against whom citations
have been issued and not served must be made by filing with the
clerk a written notice of appearance.

RULE IV.

Persons not named in citation, but who claim to be interested
in a proceeding and wish to intervene therein, must file a similar
notice of appearance, together with an afiidavit or petition show-
ing in what way they are interested in such proceeding.

RULE V.

Except when otherwise expressly prescribed by statute, all peti-
tions, answers, objections and other pleadings shall be in writing
and verified, and shall contain a plain and concise statement of the
facts constituting the party's claim, objection or defense, and a
demand of the order, decree or other relief to which such party
considers himself entitled.

RULE VI.

No special guardian to represent the interests of an infant in
any proceeding shall be appointed on the nomination of a pro-
ponent or accounting party, or his attorney. No transfer tax
appraisers will be appointed upon the nomination of a person in-
terested in the estate, or his attorney ; nor will an application for
costs be entertained under chapter 908 of the Laws of 1896, with-
out two days' vsTitten notice of such application to the parties
against whom such costs are asked, or his attorney, when repre-
sented by an attorney.

RULE vn.

In probate proceedings the will propounded must accompany
the petition, and be filed with the clerk of the court.

650 Eeie County — County Couet. [Rule 11

EuiE vm.

In any proceeding wherein a special guardian shall appear to
protect the interests of an infant party, no decree shall be entered
against such infant party by default; but, such decree shall be
entered only upon the written and verified report of such special
guardian, to the effect that he has examined the account — where
there is one — and also the decree to be entered, and finds the
same correct.

RULE IX.

When a petition for an accounting is presented to the court by
an accounting party, the account to which it relates must be filed
therewith. On any accounting a party entitled and desiring to
contest the account, shall file specific objections, as provided in
Rule V, and serve a copy thereof on the attorney for the account-
ing party, if he has appeared by an attorney, at least two days
before the return day of the citation issued thereon, where the ac-
counting is had upon the petition of the accounting party, and at
least two days before the day set for a hearing upon an accounting
in all other cases, or within such further, or other time as shall for
special reasons be allowed by the court and the contest of such
account shall be confined to the items so objected to.

RULE X.

A party contesting a will must, upon the return day of the
citation, file a written and verified answer containing his objec-
tions to such probate. But one adjournment may be had upon
the application of the contestant. Any further adjournments
must be on consent of the proponents evidenced by a written stipu-
lation filed with the clerk, or made in open court. No other ad-
journments shall be allowed except for legal cause shown by
affidavit.

RULE XI.

No paper shall be removed from the files of this office by any
person. Ample facilities will be provided for the examination
and transcribing of all records by parties or their attorneys.

Rule 2] Local Rules of Peaotice. 651

FRANKLIN COUNTY — SUPREME COURT.
Calendar Rules.

The calendar will be called as usual at the opening of court on
the first day.

The first twenty causes will constitute the day calendar for the
first day of the term.

Before adjournment each day, sufficient causes, arranged ac-
cording to their order on the general calendar, as affected by
previous day calendars, will constitute the calendar for the next
day.

Causes undisposed of on the day calendar will stand first, and
in the same order, on the next day calendar, and enough be added
from the general calendar, in their order on such calendar, to
make ten for each day.

Causes not ready when reached on the day calendar will be
stricken from the general calendar, unless otherwise specially
ordered.

Causes may be set down the first day for a future day, but
subject to adjournment of court if sufficient cases are not ready
continuously to provide business.

FRANKLIN COUNTY — SURROGATE'S COURT.
EULE I.

The regular court day for the return of citations and the trans-
action of court matters shall be Monday of each week except dur-
ing the month of August.

Court will open at 9 o'clock a. m. and continue until 5 o'clock
p. m.

EULE n.

This court will be closed during the month of August in each
year, and no surrogate's court matters will be entertained during
that time.

This court vnll not be opened for business on legal holidays
or half holidays.

652 Franklin Couitty — S'uebogate's Couet. [Rule 8

When the regular court day falls upon a legal holiday all mat-
ters returnable on that day will stand adjourned as of course
until the next secular day.

RULE in.

No person other than a regularly admitted attorney-at-law shall
be permitted to practice in this court.

EULE IV.

!N"o paper filed in this court shall be permitted to be removed
or taken therefrom.

RULE V.

A petition filed -in this court for the probate of a will must be
accompanied by the original will, which will be filed and must
remain in this court until removed according to law.

RULE VI.

A petition filed in this court for the final settlement of the ac-
count of an executor or administrator must be accomplished by an
account of proceedings, and proof of publication for claims.

RULE vn.

'No special guardian to represent the interests of an infant in
any proceeding in this court will be appointed on the nomination
of a proponent or accounting party, or his attorney, or upon the
application of any person having an interest adverse to that of the
infant, and no allowance for services will be made to a special
guardian by the court unless he has made and filed his report in
the proceeding in which he may be appointed.

RULE vin.

Whenever an infant is interested in any proceeding in this
court, a special guardian will be appointed to safeguard his in-
terests, unless the general guardian of such infant appears in per-
son, and it appears that he has no interests adverse to those of said
minor.

Eule 14] Local Eules of Peactice. 65'3

RULE IX.

In a contested proceeding for the probate of a will, no costs
will be allowed to the contestants in case the will is admitted to
probate.

RUIE X.

All petitions and answers in this court, except as otherwise pre-
scribed by law, must be in writing, and must be verified.

RULE XI.

A party seeking to contest the probate of a will must appear
in person or by attorney and file a written answer, duly verified.

RULE XII.

In any matter or proceeding in which tbere is a contest no hear-
ing will be had or evidence taken on Monday.

RULE xin.

The surrogate, on the written certificate of the person ap-
pointed under section 2844 of the Code, to examine the inventory
and accounts of guardians filed in said surrogate's ofiice, that a
general guardian has omitted to file such inventory or account, or
the affidavit required by section 2843, or that the interest of the
ward requires that the guardian should render a more satisfactory
inventory or account, will make an order requiring the guardian
to supply the deficiency. Whenever it shall appear by the cer-
tificate of said person that the guardian has failed to comply with
such order within three months after its due service upon him,
or that there is reason to believe that sufiicient cause exists for
the guardian's removal, the surrogate will appoint a special
guardian of the ward for the purpose of filing a petition in his
behalf and prosecuting the necessary proceedings for the removal
of such guardian.

RULE XIV.

All bonds of adminis-trators and general guardians must con-
form in all respects to forms prescribed by the surrogate.

654 Herkimee County — Supreme Couet. [Eule 16

ETJLE XV.

In proceedings for the sale of a decedent's real estate Instituted
under title V of chapter 18 of the Code of Civil Procedure there
must be filed an affidavit of regularity by the attorney before a
final decree v?ill be made by the surrogate.

RULE XVI.

The rules governing the procedure in the Supreme Court, so
far as they may be applicable, will be adopted as controlling the
practice in this court.

GENESEE COUNTY.

(For rules of Supreme Court applicable to Genesee county, see
under Allegany county.)

HERKIMER COUNTY — SUPREME COURT.
Ordered :

1. That at the Circuit Court in this county, the first twenty
causes on the calendar shall constitute the day calendar for the
first day of the circuit ; ten causes ready for trial shall compose
the day calendar for each subsequent day, unless otherwise ordered
by the circuit judge.

2. The number of causes to go on the day calendar must be
left with the clerk of the court by 4 p. m. the day previous.
Causes not thus left with the clerk will be considered passed as
upon a regular call, to and inclusive of the last cause upon the
day calendar. Causes so put on the day calendar must be tried
or otherwise disposed of, as the circuit judge shall order for the
circuit.

3. Causes may be reserved for a particular day by filing a
istlpulation of the attorneys to that effect with the clerk; but
reserved causes shall not have priority over causes previously put
on the day calendar unless especially ordered by the court.

This order shall be published with each calendar.

Local Eules of Pbactice. 655

jefferson county — supreme court.

Day Calendar.

Ordered, That hereafter and until otherwise ordered, a day-
calendar be made up for the Trial Term Supreme Court of the
county, the first twenty cases to constitute the day calendar for
the first day. Every subsequent day calendar shall consist of
ten causes placed thereon in the order of their priority on the
general calendar, and shall be made up from causes, a memoran-
dum of which shall be left with the clerk by 2.30 p. m. of the
preceding day ; but causes left over of the preceding day, and not
disposed of, shall retain their priority on the day calendar imtil
finally disposed of.

Causes placed on the day calendar must be disposed of when
reached, and will not be reserved, except for special reasons satis-
factory to the court.

All causes not placed on the day calendar will be considered
as passed, down to the last cause, which will be regularly placed
upon the day calendar, unless reserved by the court, or postponed,
as hereinafter provided.

Attorneys may arrange to postpone causes to a day certain,
and then put them on the day calendar, by a day's prior notice to
the clerk, but not to take precedence of other causes already ap-
pearing on the day calendar, or such as shall be duly notified to the
clerk of earlier issues.

The number of causes for the day calendar shall always be
under the direction of the presiding justice.

And it is further ordered, that the clerk hereafter, at least
three days prior to the commencement of each Trial Term, make
a list of the first twenty causes on the calendar of said court
and mail a written or printed copy thereof to each member of
the bar of said county.

And it is further ordered, that no equity or Special Tei-m
causes shall be placed on the Trial Term calendar or tried at a
Trial Term, except by direction of the court.

And it is further ordered, that the clerk cause a copy of this
order to be printed in all the Trial Term calendars hereafter pre-
pared for said county.

656 Jeffeeson County — County Couet. [Rule 3

JEFFERSON COUNTY — COUNTY COURT.

RULE I.

Witkin ten days after tlie service of notice by either party tiat
a justice's return on appeal has been filed, either party who
shall deem said return insufficient may serve a notice on the
justice requiring him within thirty days after service of such
notice to amend his return, which notice shall specify in what
respect his return does not correctly state the testimony and pro-
ceeding before said justice, as said party claims. And a copy
of such notice shall also be served on the opposite party within
five days after the same is served on said justice, and the said
opposite party may within ten days thereafter serve on the said
justice and opposite party a notice specifying in what respect
the return does not correctly state the testimony and proceeding
before said justice as said party claims. The said justice shall
not make an amended return until the expiration of twenty
days from the time of the first notice to amend his return was
served on him, and he shall file with such amended return the
notice served on him.

RULE n.

Appeals in civil action (where a new trial may not be had in
the county court, pursuant to section 3068 of the Code of Civil
Procedure) and issues of law brought up on appeal shall be heard
only at law terms of the court at which no jury is required to
attend.

At the commencement of the argument each party shall deliver
to the court and to the adverse party a copy of his points on
which he intends to rely, with a reference thereon to the authorities
which he intends to cite.

RULE m.

An application to commit an indigent insane person to the
State asylum at the expense of the county shall only be heard
upon a reasonable notice of such application to the supervisor of
the town or ward where such alleged indigent insane person
resides (if a resident of any particular town or ward in said
county), and upon notice to the superintendent of the poor of
said county.

Local Exiles of Practice. 657

Note to Attorneys.

Notes of issue are required to be filed in the clerk's office for
causes on' appeal from justices' court, eight days before the court,
and for all other causes, twelve days before the court. Unless
this rule is observed causes cannot be entered on the calendar.

Attorneys are requested to notice their causes as issues of fact
to be tried by jury, or issues of fact to be tried by the court, or
issues of lav?. Do not notice as equity at all.

Where a cause is noticed by both parties it is designated thus
— X.

Where a note of issue is filed by one party only, the party so
filing it is designated thus — *.

MADISON COUNTY.

Notes of issue are now required to be filed in the clerk's office
twelve days before the court. Unless this rule is observed, causes
cannot be entered upon the calendar.

When a note of issue is filed by one party only, the party so
filing is designated thus — f.

When a cause is noticed by both parties, it is designated
thus — *.

Rules of the Supreme Court.

Special terms for the hearing of ex parte applications and mo-
tions on consent will be held at Supreme Court chambers at Bing-
hamton, Oneonta, Canastota and Elmira on Saturday of every
week, when the resident justice is not otherwise engaged, except
in July and August.

No motions will be heard at Special Term held with the Trial
Terms except in cases triable in the county where the Special
Term is held or triable in an adjoining county not within the
district; or upon order to show cause granted by one of the
justices of the Supreme Court residing in the Sixth Judicial Dis-
trict.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. Notes
of issue filed shall state whether the action be triabla with or with-
42

658 Madison County — Supreme Couet.

out a jury. Those cases triable with a jury shall be first placed
upon the calendar, and those triable without a jury shall follow.
The call of the calendar in all counties will be governed by the
day calendar rules, which follow:

Day Calendar Rules.

1. The first ten causes upon the calendar in addition to such
causes as shall be moved to the head of the calendar as preferred
causes, shall constitute the day calendar for the first day, and
each day thereafter the same shall be made up of causes from
those not disposed of on the day calendar, and causes from the
general calendar in which a request to place upon the day calen-
dar stating the number of the cause upon the general calendar
shall be filed with the clerk before 4 p. m. the previous day, by
an attorney who has noticed the cause for trial, and such causes
shall be placed upon the day calendar according to their priority
upon the general calendar.

2. Causes upon the day calendar, including those upon the first
day calendar not disposed of, shall remain upon and retain tVeir
priority on the day calendar until finally disposed of.

3. The clerk shall make up the day calendar at 4 o'clock each
day.

4. Causes placed on the calendar must be disposed of when
reached and will not be reserved except for special reasons arising
after they have been placed upon such day calendar and satisfac-
tory to the court. And after a case has been put upon the day
calendar no motion will be entertained to put the case over the
term except for causes arising after the cause is placed upon
such day calendar.

5. All causes not placed on the day calendar will be considered
as passed down to the last cause, which shall be regularly placed
upon the day calendar unless reserved by the court, or as herein-
after provided.

6. Attorneys shall not reserve causes generally, nor reserve
them to a day certain, except upon application made to and ap-
proved by the court, before such cause shall be placed upon the
day calendar. When reserved to a day certain by permission of
the court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon

Local Eules of Practice. 659

notice filed with the clerk before 4 o'clock of the preceding day,
hy a party who has noticed said cause for trial.

7. The number of causes for the day calendar shall always be
under the direction of the presiding justice, and nothing in this
order contained is to interfere with the moving of preferred
causes, or the taking of inquests.

MONROE COUNTY — SUPREME COURT.
Special Trial Term Calendar.

At any Trial Term, until further orders, any causes belonging
to either of the following classes may be placed on a special
calendar, which shall constitute the preferred day calendar for
each Friday of the term.

1st. Where the action is on contract, and the answer merely
denies the allegations in the complaint without setting up any
new matter, and can be tried in an hour.

2d. Where the action is on contract, and new matter is set up
in the answer, and there shall be reason to believe that the defense
is interposed for delay. only, or, where it shall appear by affidavit
that the cause can be tried in an hour.

To entitle the cause to be placed upon such calendar, a stipula-
tion, signed by the respective attorneys, must be filed with the
clerk by three (3) o'clock in the afternoon of the day preceding
the Friday upon which it is desired to try the same ; or a motion
must be made upon a notice of four days, to have such cause
placed upon the short cause calendar. The motion shall be heard
at the opening of the court on each Monday forenoon, and, if
founded upon the belief that the defense is for delay, and that
the case can be tried in an hour, afiidavits must be served with
the notice, which may be met by opposing afiidavits.

Day Calendar — Preferred and Reserved Causes.
Oedeeed, That hereafter at the Circuit Term the day calendar
for the first day of the term shall consist of five causes, and the
same shall retain their priority on the calendar over such as are
preferred under section 793 of the Code of Civil Procedure, until
tried or otherwise disposed of.

660 Monroe Oottntt — Cotjntt Couet. [Kule 2

Five causes ready for trial shall compose the calendar for each
subsequent day.

Such causes as are ordered to be put upon the short cause
calendar for any Friday of the term, shall be put at the head of
the day calendar for that day, and the regular day calendar will
not be called on Friday until such special calendar has been dis-
posed of.

A cause preferred by the Code of Criminal Procedure may be
reserved for a future day of the term upon sufficient cause shown
by affidavit.

The numbers of the causes to go on the day calendar on each
day after the first day, other than those which have been set down
for that day, must be left with the clerk of the court by 4 o'clock
of the day previous. Causes not thus left with the clerk wiU be
considered over the term, as upon a regular call, to and inclusive
of the last cause upon the day calendar.

Causes may be reserved for a particular day vrith the consent of
the court, but reserved causes, whether preferred or not, shall not
have priority of causes previously put on the day calendar.

This rule shall be nrinted with each general calendar of this
court.

MONJROE COUNTY — COUNTY COURT.
RULE I.

Matters in these courts, except as otherwise specially announced,
vdll 'be taken up and disposed of in the following order: First,
civil jury trials; second, criminal jury trials; third, enumerated
motions and appeals from justice's judgment on questions of law,
and trials of issues of fact^ triable hj court.

EITLE n.
Calendar.
Hereafter in this court the first ten causes on the calendar shall
constitute the day calendar for the first day of the term. Five
causes ready for trial shall compose the day calendar for each
9u1:)sequent day. The number of causes to go on the day calendar
must be left with the clerk of the court by 4 o^clock of the day

Rule 2] Local Eules of Peactice. €61

previous. Causes not thus left with the clerk will be considered
passed as upon a i-egular call, to and inclusive of the last cause
upon the day calendar. Causes may be reserved for a particular
day by consent of the court, but reserved causes shall not have
priority over causes pi*eviously put on the day calendar. ISTo
cause upon the first day's calendar shall be reserved for a subse^
quent day, except on account of the illness of counsel, or of a
party to tie action., the actual engagement of counsel in other
courts of record, or for other special reasons, which, in the dis-
cretion of the court, render the postponement of the trial abso^
lutely necessary.

Special Calendar.

Any causes which can be tried or disposed of within an hour

may be placed on a special calendar, which shall constitute a

preferred day calendar for each Friday of the term. To entitle

any cause to be placed upon such calendar a stipulation signed

by the respective attorneys must be filed with the clerk by

3 o'clock in the afternoon of the day preceding the Friday upon

which it is desired to try the same, or a motion must be made

upon a notice of two days to have such cause placed upon the

short cause calendar. Such motion shall be heard at the opening

of the court on each Monday during the continuance of the term.

A certified copy of the order directing a cause to be placed upon

a short cause calendar must be served upon the opposing attorney

not later than Wednesday preceding the Friday when said cause

is expected to be tried. If a cause shall actually occupy more

than one hour in the trial thereof, the trial may be suspended,

the cause placed at the foot of the calendar, and the moving party

charged with the costs of the term in the discretion of the court.

If a cause which has been placed upon the short cause calendar

for any Friday shall not be reached on that day it shall remain

upon the calendar for each succeeding Friday until disposed of,

unless sooner reached and disposed of upon a call of the general

calendar.

Criminal Calendar.

Oedeeed, That until further order the district attorney shall,
on or before the first day of each term of the Monroe County
Court at which a jury is required to attend, maka and file with
the clerk a list or calendar of all causes he proposes to move for

662 ISTassau County — Supeeme Ooukt. [Rule 2

trial at such term in the order in which he purposes to naove
them. Criminal trials will not, except by special order, be taken
Tip until after the civil trial calendar has been disposed of and the
court will endeavor to give reasonable notice of the time at which
the criminal trial calendar above provided for will he taken up.
At the opening of court on the day appointed for taking up said
criminal trial calendar, the district attorney shall give notice of
any variations or modifications he desires to make in the calendar
theretofore filed by him, and any other person desiring to have
the trial of any indictment postponed or put over the term shall
also, at said time, make application therefor. 'So application for
modification of said calendar, or for delay or postponement of
any trial, vrill be heard after the first trial is begun on said cal-
endar except for special cause shown, and no trial shall be post-
poned or put over the term at any time except for suiEcient cause,
under the rules applicable to civil causes at circuit.

This rule shall be printed in the calendar of the 'County Court,
and it, together with the calendar to b© filed as above provided,
shall be construed as sufficient notice of trial as to all indictments
included in the district attorney's said calendar.

MONTGOMERY COUNTY.

Notes of issue are required to be filed in the clerk's office twelve
days before the sitting of the court. Unless this rule is observed,
causes cannot be entered on the calendar.

Causes must be disposed of when reached upon the calendar,
and no reservation to a day certain will be made unless for cause
and at the risk of adjournment of term.

NASSAU COUNTY.

Calendar Rules.

1. 'At the opening of the term the general calendar will be

called through. The answer " Ready " will mean the cause is

to go on the day calendar when reached in numerical order. Upon

Local Eules of Peactice. •Q&S

such call, causes may, with leave of the court, be set down for
particular days for trial. Inquests and dismissals may be taken
upon such call, and motions to postpone, and to put off, must, be
made thereon.

2. The first fifteen causes on the calendar, any other cause
answered ready for that day, and all the issues of law, will make
the day calendar for the first day of the term. The day calendar
will thereafter be made up of the causes marked " Eeady " on
the calendar, as reached in their numerical order, and set down
causes.. It will be called at the opening of court each day, and
inquests and dismissals may be taken thereon. No cause on the
day calendar will be set down for a day. The first day a cause
is on the day calendar, except the first day of the term, it will
be held for that day, on request, if marked ready.

3. Causes may be reserved for a particular day, by filing a
stipulation of the attorneys to that effect with the clerk, but re-
served causes shall not have priority over causes previously put
on the day calendar, unless specially ordered by the court.

NIAGARA COUNTY — SUPREME COURT.

[For rules of the Supreme Court applicable to ITiagara county,
see under Allegany county.]

To Attorneys.

Wotes of issue are required to be filed in the clerk's office twelve
days before the sitting of the court. Unless this rule is observed,
causes cannot be entered upon the calendar.

The trial fee of one dollar is payable by the party bringing
the same on, and must be paid to the clerk when the case is called
and before proceeding to trial.

The calendar fee of fifty cents must be paid to the clerk for
the use of the sheriff by the party first putting the case on the
calendar, at the time of filing his note of issue. (See subdivision
4, section 3307, Code Civ. Pro.) Unless this requirement is
observed, cases cannot be placed on the calendar.

6-64 Ojteida Cotjntt — County Couet. [Rule i

ONEIDA COUNTY — COUNTY COURT.

ETJLE I.
Civil Calendar.

The first fifteen causes on the calendar of any jury term shall
constitute the day calendar for the first day of the term.

Ten causes ready for trial shall constitute the day calendar for
each subsequent day, unless otherwise ordered by the presiding
judge.

Memorandum of number of causes for day calendar must be
left with the clerk in court before 4 o'clock of the day previous
by a party who has noticed the cause for trial at the term.

'Causes not on the day calendar will be considered passed as
upon a regular call of the calendar to and inclusive of the last
cause upon the day calendar.

Causes on the day calendar when reached must be tried or dis-
posed of as the court directs.

RULE n.

Copies of affidavits to be read on behalf of appellant, under
section 3057, Code Civ. Pro., must be served upon the opposing
party at least eight days before the term at which the cause is
argued.

RULE m.

An order for an amended return under section 3055, Code Civ.
Pro., will not be granted at a term for which the cause has been
noticed for argument, except upon a payment of costs, unless upon
proof satisfactory to the court that the application could not have
been made sooner.

RULE rv.

Criminal Calendar.
A calendar of indictments to be tried at the Court of Sessions,
held in connection with each Jury Term of the County Court,
will be prepared by the district attorney, and published by the
clerk in connection with and immediately following the civil
causes on the same calendar. Such calendar of indictments will
be made up as follows:

Kule 8] Local Eules of Practice. 665

1st. Of indictments in which the defendants are detained in
jail awaiting trial.

2d. Of indictments in which 'the defendants are at large, on
bail or otherwise. These indictments shall he so arranged by
the district attorney in the order as nearly as may be in which
he expects to move them for trial.

RULE V.

All motions on the behalf of the defendants under indictment,
concerning such indictment and the trial or disposition thereof,
and all applications for the postponement of the trial of said
indictments, shall be made at the opening of said County Court
and Court of Sessions, on the first day thereof, and such motions
and applications will not be heard later in the term except for
sufScient reasons and good cause shown for the delay. The dis-
trict attorney, if he is able to do so, will give notice at said lime
• of what indictments he does not expect to move at such term of
the court.

EXILE VI.

The trial of indictments shall commence on the first Thursday
of each Jury Term, unless otherwise ordered at the commence-
ment of such term.

RULE vn.

Persons under indictment and so needy as to be unable to pro-
cure witnesses material to their defense, must make applications
for lease to have them subpoenaed at expense of the people, not
later than the first Tuesday of Trial Terms and upon three days'
written notice thereof to the district attorney.

RULE vni.

Assignments — Schedules.

The schedule of liabilities and assets required to be filed by
the assignor or assignee, shall fully and fairly state the nominal
and actual value of the assets and the cause for the difference.

666 Oneida County — County Couet. [Eule 13

RULE IX.
Recapitulation.
There shall be a recapitulation at the end of the schedule as
follows :

Debts and liabilities amount to $

Assets nominally worth ,

Assets actually worth

RTJIE X.

Assignee.
Every assignee shall keep full, exact and regular books of
account of all receipts, payments and expenditures of money by
him, which said books shall always during business hours be open
to the inspection of any person interested in the estate.

RULE XL

In making sales at auction of personal property, the assignee
shall give at least ten days' notice of the time and place of sale
in the same manner as a sheriff is required by law to give notice
of public sale of such property, send a like notice by mail to
every creditor whose name appears on the books of the assignor or
is known to the assignee, and may advertise the sale in such other
prudent manner as the quantity, value and nature of the property
to be sold, warrants.

Every notice of sale shall state the time, place and terms of
sale, and shall contain a brief description, under general heads,
of the kind and quantity of property to be sold. A like notice
of every public sale of real property shall be given in the same
manner at least twenty days immediately before the date fixed
for the sale.

RULE XII.

Upon an application made for an accounting the assignee shall
file with his petition his account together with vouchers.

RULE xin.

A copy of the notice or advertisement requiring creditors to
present their claims must be mailed to each creditor whose name
appears on the books of the assignor, or who is known to the
assignee, with the postage thereon prepaid, at least thirty days
before the day specified in such advertisement or notice.

Local Rules of Practice. 667

onondaga county — supreme court.

Day Calendar.

At a Trial Term of the Supreme Court, held in and for the
county of Onondaga, at Syracuse, on January 30, 1908.

Present — Hon. W. S. Andrews, J. S. C.
In the Matter of the Day Calendar.

Ordeeed. — I. That a day calendar for each day of a trial term
shall be made by the clerk of ten causes, unless otherwise directed
by the presiding judge.

II. The day calendar for the first day of the October term in
each year shall be made from causes noticed for such day calen-
dar, by filing such notice with the clerk not later than the Wed-
nesday next preceding the commencement of such term; these
causes to be selected according to their numerical order on the
general calendar. The party filing such notice with the clerk
shall, on the same day, serve a duplicate thereof upon the at-
torney for the adverse party, personally or by mail, and in de-
fault of the service of such notice the cause shall not be moved
for trial upon such first day of the term, but shall be stricken
from such day calendar. That said day calendar shall be pub-
lished in each of the Syracuse daily papers upon Thursday pre-
ceding the commencement of the term. The day calendar for the
first day of every succeeding term shall be made up on the last
day of the preceding term in the same manner as is prescribed
below for the day calendars made during each term.

III. The day calendar for each day after the first day shall be
made from a list of cases ordered placed upon the day calendar,
according to their numerical order on the general calendar. To
entitle a case to be put on such list :

1. Three days' notice in writing of the application by the party
desiring the same shall be given to the attorney or the attorneys
representing the opposite party by serving the same before the be-
ginning or during the continuance of the term, personally, or by
mail, unless the opposing attorney or attorneys, do not reside or
do not have an ofBce for the regular transaction of business within
the county of Onondaga, in which case five days' notice as afore-
said shall be given j and

668 Onondaga County — Stjpeeme Cottet.

2. A notice that such application is to be made shall be filed
with the clerk at or prior to 2 o'clock p. m. of the day when it is
to be so made.

IV. Such application shall be made returnable at the hour of
2 p. m.

V. Upon the hearing of an application to place a case upon
such list as aforesaid, any party objecting thereto may present
to the court an affidavit or affidavits material to the grounds of his
objections; if such an affidavit or affidavits are presented the
trial judge may permit the moving party to file an answering
affidavit or affidavits.

VI. The trial judge shall hear the application at that time or
at a later time to which it may be adjourned by his order, and
if, after such hearing, the case is ordered upon such list it must
be tried when reached in its order, unless :

1. By the consent of counsel it is moved over the term in which
case, at the discretion of the trial judge, it may be ordered to the
foot of the general calendar, or

2. Unless on account of the actual engagement of counsel in a
court of equal or superior jurisdiction, or unless on account of
the illess of counsel, or unless the presiding justice being of the
opinion that the ends of justice so require, other disposition
thereof is ordered by such justice.

VII. Such list shall be printed at the foot of each day calendar,
and shall be continued from term to term, from the October to
and including the June term. The clerk shall, however, at the
commencement of each term, alter the number of the cases on
such list so that such numbers may correspond with the number
of such cases on the calendar for such term.

VIII. Upon the order of the judge holding any term a special
calendar of short causes may be made up which calendar shall be
taken up on the day ordered by the judge, and continued, if neces-
sary, on the following day and thereafter until disposed of. Any
party desiring his cause to be placed on such calendar must show,
by affidavit to the satisfaction of the court, that such cause will
not occupy in its trial to exceed two hours, and must serve per-
sonally, or by mail, on the opposite party, four day's notice of
such application, with a copy of such affidavit.

Rule 2] Local Rules of Peactice. 669

If the trial of any such cause shall not be completed in two
hours, the court may, at its option, suspend such trial and declare
it a nullity, and strike the cause from such calendar, and charge
moving party with costs of the term.

IX. All previous orders in relation to the calendar in this
county are hereby revoked.

(Enter.) W. S. Andrews, J. S. C.

At Circuit
In the Matter of Short Cause Calendar.

Oedebed, That at the opening of the court, on the first Saturday
of the circuit, or if the court does not sit on that day, then at the
opening of the court on the next day of the session, a special
circuit calendar of short causes on contract be made up, which
calendar shall be taken up on the second Friday of the circuit, and
continued, if necessary, on the following day and the third Friday.
That any party desiring his cause to be placed on such calendar
must show, by affidavit, to the satisfaction of the court, that such
cause will not occupy in its trial to exceed one hour, and must
serve personally, or by mail, on the opposite party, four days'
notice of such application, with a copy of such affidavit.

If the trial of any such cause shall not be completed in one
hour, the court may, at its option, suspend such trial and declare
it a nullity, and strike the cause from such calendar, and charge
moving party with costs of the term.

In the Matter of the Day Calendar.

Ordered, That the following additional rules vsdth regard to
the day calendar are adopted for the Trial Term of the Supreme
Court to be held at Syracuse, beginning on October 5, 1903.

RULE I.

The day calendar for the first day of the term shall be made
up by the clerk as at present provided.

UTILE n.

The day calendar for each day after the first day shall be made
from a list of cases ordered placed upon the day calendar, accord-

670 Onondaga County — Supeeme Cotjet. [Rule 5

ing to their numerical order on the general calendar. To entitle
a case to be put on such list,

1. Three days' notice in writing of the application by the party
desiring the same shall be given to the attorney or attorneys repre-
senting the opposite party by serving the same before the begin-
ning or during the continuance of the term, personally, or by
mail, unless the opposing attorney or attorneys do not reside or
do not have an office for the regular transaction of business within
the county of Onondaga, in which ease five days' notice as afore-
said shall be given ; and

2. A notice that such application is to be made shall be filed
with the clerk at or prior to 4 o'clock p. m. of the day when it is
to be so made.

RULE ni.

Such application shall be made returnable at the hour of 4 p. m.

RULE IV.

Upon the hearing of an application to place a case upon such
list as aforesaid any party objecting thereto may present to the
court an affidavit or affidavits material to the grounds of his ob-
jection; if such an affidavit or affidavits are presented the trial
judge may permit the moving party to file an answering affidavit
or affidavits.

RULE V.

The trial judge shall hear the application at that time or at a
later time to which it may be adjourned by his order, and if, after
such hearing, the case is ordered upon such list it must be tried
when reached in its order, unless

1. By the consent of counsel it is moved over the term, in
which case, at the discretion of the trial judge, it may be ordered
to the foot of the general calendar, or

2. Unless on account of the actual engagement of counsel in a
court of equal or superior jurisdiction, or unless on account of
the illness of counsel, or unless the presiding justice being of the
opinion that the ends of justice so require, other disposition
thereof is ordered by such justice.

Local Eules of Peactice, 671

ONTARIO COUNTY.

ITotes of issue are required to be filed in the clerk's office
twelve days tefoTe the sitting of the court.

The trial fee of one dollar is payable by the party bringing the
same on, and must be paid to the clerk when the case is called
and before proceeding to trial.

Calendar fee required.

ORANGE COUNTY.

Notes of issue are required to be filed in the clerk's office twelve
days before the sitting of the court. Unless this rule is observed
causes cannot be entered on the calendar.

Calendar Rules.

1. The day calendar for each day will consist of a " Eeady "
section and a " Reserve " section, and both sections wall be called
at 10 o'clock. The causes on the ready section must be ready
and will be tried that day. Those on the reserve section will be
passed for the day if marked " Ready " on the morning call.
Inquests and dismissals will be taken on such call. The first
thirty causes on the general calendar will constitute the day cal-
endar for the first day of the tei-m, the first fifteen being on the
ready section.

2. Causes will not be set down for a day after they appear on
either section of the day calendar. Before that they may be set
down for a day by the court in its discretion on stipulation or
motion.

3. The court will hear no excuses for not being ready or
motions to postpone except on affidavits ; and if motions be after-
ward made to open defaults, such affidavits must be made part
of the moving papers.

672 Oswego County — ^Supeeme Court.

orleans county.

[For rules of the .Supreme Court, applicable to Orleans countj,
see under Allegany county.]

Notes of issue are required to be filed witb the clerk twelve
days before the sitting of the court, to secure entry of the same
on the calendar.

Trial fee one dollar.

OSWEGO COUNTY.
Day Calendar Rules — Supreme Court.

Ordered, That hereafter, and until otherwise ordered, a day
calendar be made up for Trial Terms of the .Supreme Court in
Oswego county; the first twenty causes, to constitute the day cal-
endar for the first day. The day calendar for the second day
will be made up from the causes of which a memorandum shall
be left with the clerk by 3 o'clock p. m. of Monday, by the attor-
ney who shall have noticed the cause for trial, and shall be put
on the day calendar according to their priority on the general
calendar.

Every subsequent day calendar shall include ten causes, to be
made up in the same manner from memoranda left with the clerk
by 3 o'clock p. m. of the preceding day; but causes left over of
the preceding day and not disposed of, shall retain their priority
on the day calendar until finally disposed of.

Causes placed upon the day calendar must be disposed of when
reached, and will not be resei-ved except for very special reasons
satisfactory to the court.

All causes not placed upon the day calendar will be considered
as passed down to the last cause which shall be regularly placed
upon the day calendar, unless reserved by the court or postponed
as hereinafter provided.

Attorneys may arrange to postpone causes to a day certain, and
then put them upon the day calendar by a day's prior notice to
the clerk, but not to take precedence of other causes already
appearing upon the day calendar, or such as shall be duly notified
to the clerk of earlier issues.

The number of causes for the day calendar shall always be
under the direction of the presiding justice.

Hule 6] Local Rules of Peactice. 6T3

OSWEGO COUNTY — COUNTY COURT.
RULE I.

All calendar causes for argument shall he argued or sulanitted
\>e£ove trials by jury stall be commenced.

RULE n.

In all calendar causes for argument, each party at the com-
mencement of the argument shall furnish to the court a copy of
the points on which he intends to rely, with reference to the au-
thorities which he intends to cite, accompanied with a concise
statement of the facts of the case which he deems established, and
shall at the same time deliver a copy to the adverse party.

RTJIE ni.

If the return of the justice is defective the court will, upon
the production of an affi-davit specifying the defects, upon notice,
direct the justice to make a further or amended return. The
court is always open for that purpose.

ETJIE IV.

Copies of affidavits to be read on behalf of appellant, under
section 30i57, Code of Civil Procedure, must be served upon the
opposing party at least eight days before the term at which the
cause is argued.

ETJIE V.

An order for an amended return under section 30'55, Code Civil
Procedure, will not be granted at a term for which the cause has
been noticed for argument, except upon payment of costs, unless
upon proof satisfactory to the court that the aoplication could
not have been made sooner.

RULE VI.

Causes on the general calendar must be tried or otherwise dis-
posed of for the term when reached in order.
43

674 Oswego County — Supreme Coukt. [Rule &

RULE VII.

All motions to correct the calendar, or to put causes over the
term, or to refer causes, shall be made the first day of each term,,
on the informal call of the calendar at the opening of the court.

RTJiE vm.

I Final applications of aliens to be admitted to become citizens
of the United States, pursuant to chapter 927 of the Laws of
1895, shall be heard and final action thereon had at each law
term of the county court and on Monday of each week of the
jury terms.

RULE IX.
Criminal Calendar.

At least ten days before the term the district attorney shall
furnish the clerk with a list of indictments which he intends to
try, and in the order in which they are intended to be moved for
trial, giving preference on the calendar to defendants confined
in jail, with the names of the defendants and the nature of the
oifense for which the indictment was found.

The clerk from said list shall cause to be printed a criminal
calendar to be incorporated with the calendar of civil causes for
said term.

The criminal calendar shall not be moved before the third day
of the term, provided the civil business is sufficient to occupy the
court.

All motions on behalf of the defendants under indictment, con-
cerning such indictment and the trial or disposition thereof, and
all applications for the postponement of the trial of said indict-
ments, shall be made at the opening of court, on the first day
thereof, and such motions and applications will not be heard later
in the term except for sufficient reasons and good cause shown for
the delay.

The district attorney, if he is able to do so, will give notice
at said time of what indictments he does not expect to move at
such term of court.

liule 5] Local Rules of Practice. 675

OTSEGO CO0NTY — SUPREME COURT.
Day Calendai Rules.

EULE I.

The first ten causes upon the calendar in addition to such
causes as shall be moved to the head of the calendar as preferred
causes, shall constitute the day calendar for the fi,rst day, and
each day thereafter the same shall be made up of causes from
those not disposed of on the day calendar, and cases from the
general calendar in which a request to place upon the day calendar
stating the number of the cause upon the general calendar shall
be filed with the clerk before i o'clock p. m. the previous day,
by an attorney who has noticed the cause for trial and such causes
shall be placed on the day calendar according to their priority
upon the general calendar.

RULE U.

Causes upon the day calendar including those upon the first
day calendar not disposed of shall remain upon and retain their
priority on the day calendar until finally disposed of.

RULE m.

The clerk shall make up the day calendar at 4 o'clock each day.

RULE IV.

Causes placed on the calendar must be disposed of when
reached and will not be reserved except for special reasons aris-
ing after they have been placed upon such day calendar and
satisfactory to the court. And after a case has been put upon
the day calendar no motion will be entertained to put the case
over the term except for causes arising after the cause is placed
upon such day calendar.

RULE V.

All causes not placed on the day calendar will be considered as
passed down to the last cause, which shall be regularly placed
upon the day calendar unless reserved by the court, or as herein-
after provided.

676 Otsego County — Slfpeeme Couet. [Rule 20

RULE VI.

Attorneys shall not reserve causes generally, nor reserve them
to a day certain, except upon application made to and approved
by the court, before such cause shall be placed upon the day
calendar. When reserved to a day certain by permission of the
court, they are to be placed upon the day calendar after the
causes undisposed of already upon such calendar and only upon
notice filed v^ith the clerk before 4 o'clock of the preceding day,
by a party who has noticed said cause for trial.

RULE vn.

The number of causes for the day calendar shall always be
nnder the direction of the presiding justice, and nothing in this
order contained is to interfere with the moving of preferred
causes, or the taking of inquests.

Kules Adopted by the Court and Ordered Printed in Each Calendar.
RULE XX.

It shall be the duty of the attorney, by whom the copy pleading
shall be furnished for the use of the court on trial, to plainly
designate, on each pleading, the part or parts thereof claimed to
be admitted or controverted by the succeeding pleadings.

Special terms for the hearing of ex parte applications and mo-
tions on consent will be held at Supreme Court chambers at
Binghamton, Oneonta, Canastota and Walton, on Saturday of
every week, when the resident justice is not otherwise engaged,
except in July and August.

No motions will be heard at Special Terms held with the Trial
Terms except in cases triable in the county where the Special Term
is held, or triable in an adjoining county not within the district ;
or upon order to show cause granted by one of the justices of the
Supreme Court residing in the sixth judicial district.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. ISTotes
of issue filed shall state whether the action be triable with or with-
out a jury. Those cases triable with a jury shall be first placed
upon the calendar, and those triable without a jury shall follow.
The call of the calendar in all counties will be governed by the
day calendar rules.

Local Rules of Pkaoticb. '677

QUEENS COUNTY.
Calendar Rules.

1. Any cause may be set down for a day, by a stipulation filed
with the clerk, before it appears on the day calendar, except that
it may not be advanced out of its order in that way. Causes
marked " off," on the call of the day calendar, may be set down for
a day of any subsequent term only, by a stipulation or a two days'
notice filed with the said clerk.

2. Causes will not be set down for days upon the call of the day
calendar. The answer must be " ready," or " off."

3. The first day a cause is on the day calendar it will be held
for that day, if marked " ready."

4. The court will take notice of engagements of counsel in
Queens county upon an oral statement.

5. The court will pay no regard to engagements of counsel else-
where, unless a signed written statement thereof (which need not
be sworn to) be submitted, giving the title of the cause in which
the engagement is, in what court and part, and before what judge
such cause is on trial, and when the trial commenced, and how
long it is likely to continue. Engagements in an Appellate Court
will not be regarded unless stated in the same way and with equal
precision.

6. All other excuses, or motions for delay, or for holding, or
postponing causes, must be presented by afiidavit on the call of the
day calendar in order to be considered for any purpose, including
a motion in the Special Term to open a default.

7. The court will not hear oral statements or arguments in re-
spect of such engagements, excuses or motions, and will pass upon
such written statements, or affidavits thereof, by indorsements
thereon, after the call of the day calendar, and file the same with
the clerk.

8. ISTot more than one cause will be held ready on the day cal-
endar for one counsel in addition to the one he may be engaged in
trying in Queens county, or if he engaged out of Queens county,
and in all cases the counsel who is to try the cause must be desig-
nated on the call of the day calendar, if required by the court.

678 Rensselaee County — Supebme Couet.

RENSSELAER COUNTY.
Trial Term Rules.

1. On the first day of the Trial Term, after the grand and trial
jurors shall have been sworn, and other preliminary business dis-
patched, the justice presiding shall call the preferred and general

-calendar of causes and mark the same in such manner as to the
court may seem just and proper. 'No cause shall be peremptorily
called for trial for the first day of the term, but the presiding
justice shall make up a day calendar for the second day composed
of the first six causes that shall be ready for trial in their order.
Any causes in which both sides shall be ready for trial may be
tried, with the consent of the presiding justice, on the first day
of any Trial Term, irrespective of its place upon the calendar,
except that if two such cases be ready, that case with the earlier
date of issue shall have precedence. If the trial of any such case
begun upon the first day of the term shall not be completed upon
that day, the day calendar prepared for the second day shall not
be taken up until final disposition is made of such case so begun.

2. The Trial Term shall be convened on the first day thereof at
12 o'clock m.

3. Causes on the general calendar marked for trial, if not re-
sponded to when called in the making up of the day calendar,
shall be passed ; when reserved, generally, they shall not be placed
on the day calendar for trial except upon notice of twenty-four
hours in writing, and shall then be put upon the day calendar, at
such place as the court shall direct.

4. A cause upon the day calendar when reached must be tried
or go to the foot of the general calendar for the term, unless cause
be shown for a different disposition.

5. At the opening of the court on each day the day calendar
shall be called through. Upon such call any cause not responded
to by either party shall be passed for the term, unless the case
has been specially marked by the court on the day calendar as one
to be retained thereon. If, on such call, a cause be responded to
by the plaintiff only, he may take judgment in default of the
defendant. If, upon such call, a cause be responded to by the de-
fendant only, he may take a dismissal.

Local Eulss of Peactice. 679

6. Day calendars will be made up: First, from cases marked
ready; second, from those marked for some specific day of the
firs-t week ; third, from those marked for the second week ; fourth,
from those marked for some specific day of the second week;
fifth, from those marked for the third week. Cases not ready to
Ibe placed upon the day calendar will go to the foot of the term
calendar, from which they may be placed upon the day calendar
when all other cases have been disposed of. Cases marked " re-
served " when called up will go to the foot of the term calendar.

1. At 12:45 p. m. on each day, except the first day of the
term, the day calendar for the succeeding court day shall be made,
to consist of not more than six causes. The calendar shall con-
sist of all the causes in the order in which they stand on the day
calendar not disposed of, and after them, of such causes as shall
be added, taken in the order in which they stand on the general
calendar.

8. In actions on contract, where the trial will not probably
occupy more than one hour, either party may apply on the first
day of the term, on a notice of four days, and on affidavits served,
to set down the issue as a short.

9. Short causes shall be called on Friday of each week. If the
trial shall occupy more than one hour, it may be suspended in the
discretion of the court, and the cause placed at the foot of the
general calendar.

Miscellaneous Rules.

Notes of issue not filed twelve days (inclusive of Sundays) pre-
Tious to the sitting of court will not be placed in the calendar.
They should state which are for argument, and which for trial.

If a cause answered " ready " by the plaintiff, be afterward
answered " off," by the plaintiff, or made unduly obstructive by
the unreadiness of the plaintiff, it may be stricken from, or sent
io the foot of the general calendar.

Any action on contract or for conversion or to recover a
chattel which is on the calendar (having a number), may be ad-
vanced to any day calendar by any party, by filing at least thirty
days prior thereto with the calendar clerk in Part I, an affidavit
showing that some necessary party to the action was at the time of
its commencement a resident of Queens county, and if the plain-
tiff is an assignee of the cause of action, that the assignor or some

680 EicHMOND County — Supreme Coukt.

necessary defendant was then such resident; together with proof
of notice of such advancement to all parties who have appeared,
or in lieu thereof the consent of all such parties. Causes so
advanced must be tried when reached, or the preference and th&
right thereto under this rule is lost, unless otherwise ordered by
the court.

A calendar of causes noticed for a term will be made up and
printed by the clerk; the numbering thereof following consecu-
tively the highest number on the calendar of the last preceding
term. A cause once placed and numbered in a term calendar will
retain such number until it is finally disposed of, unless by direc-
tion of the court, a new calendar, of all cases undisposed of, is
made up, in which event, in addition to its new numbers thereon,
its former number shall be parenthetically given in smaller type.

Calendar fee required.

RICHMOND COUNTY.
Calendar Rules.

1. At the opening of the term the general calendar will be
called through. The answer " ready " will mean the cause is to
go on the day calendar, when reached in numerical order. In-
quests and dismissals may be taken upon such call, and motions to
postpone and to put off must be made thereon.

2. The first twenty-five jury causes on the general calendar,
and any other jury causes answered ready for that day, will make
the day calendar for the first day of the term. The day calendar
will thereafter be made up of causes marked ready on the general
calendar, as reached in their numerical order, and set down
causes. It will be called at the opening of court each day, and
inquests and dismissals may be taken thereon. ISTo cause on the
day calendar will be set down for a day. The first day a cause
is on the day calendar, except the first day of the term, it will bi?
passed for that day if marked ready. Causes may be set down
for a day by stipulation before appearing on the day calendar.

3. Engagements of counsel in other counties are not legal ex-
cuses for holding or postponing causes, or upon motions to open
defaults. Excuses must be presented by afiidavit in order to be-
considered, and such affidavits must be produced on motions to
open defaults.

Local Rules of Peaotice. 681

Special Term Calendai Rules.

1. Any cause may be set down for a day, by stipulation filed
-with the clerk, before it appears on the day calendar, except that
it may not be advanced out of its order in that way. Causes
marked " off " on the call of the day calendar may be set down
for a day of any subsequent term only, by a stipulation or a two
days' notice filed with the said clerk.

2. Causes will not be down for days upon the call of the day
calendar. The answer must be " ready " or " off."

3. The first day a cause is on the day calendar it will be held
for that day if marked " ready."

4. The court will take notice of engagements of counsel in
Richmond county upon an oral statement.

5. The court will pay no regard to engagements of counsel
elsewhere, unless a signed written statement thereof (which need
not be sworn to) be submitted, giving the title of the cause in
which the engagement is, in what court and part, and before what
judge such cause is on trial, and when the trial commenced, and
how long it is likely to continue. Engagements in an Appellate
Court will not be regarded, unless stated in the same way and
with equal precision.

6. All other excuses, or motions for delay, or for holding, or
postponing causes, must be presented by affidavit on the call of
the day calendar in order to be considered for any purpose, in-
cluding a motion in the Special Term to open a default.

7. The court will not hear oral statements, or arguments in
respect of such engagements, excuses or motions, and will pass
upon such written statements or affidavits thereof, by indorse-
ments thereon, after the call of the day calendar and file the same
with the clerk.

8. 'Sot more than one cause will be held ready on the day calen-
dar for one counsel in addition to the one he may be engaged in
trying in Richmond county, or if he be engaged out of Richmond
county, and in all cases the counsel who is to try the cause, must
be designated on the call of the day calendar, if required by the
court.

9. If a cause is answered " ready " by the plaintiff, be after-
ward answered " off " by the plaintiff, or made unduly obstructive
hy the unreadiness of the plaintiff, it may be stricken from, or
sent to the foot of the general calendar.

B'82 ScHBYLBE County — Supreme Couet.

Sherifi's Calendar Fees.

Title V, section 3307, article 4, ISTew Code, provides for the
collection of calendar fees by the clerk for use of sheriff. No
case ■will be placed on the calendar until the money is paid to the
clerk as therein provided,

Notice.

ITotes of issue must be filed at least twelve dayr before the term
begins. The nature of the issue, whether of fact or of law, and
if an issue of fact, whether it is triable by a jury, or by the
court without a jury, should also be stated. Preferred causes
should also be noted as such.

SCHOHARIE COUNTY.

Notes of issue are required to be filed in the clerk's office at
least twelve days before the sitting of the court. Unless this
rule is observed, causes cannot be entered upon the calendar.

Calendar fee required.

SCHUYLER COUNTY — SUPREME COURT.
Calendar Rules.

Special terms for the hearing of ex parte applications and
motions on consent will be held at Supreme Court chambers at
Binghamton, Norwich and Oneida, on Saturday of every week,
when the resident justice is not otherwise engaged.

No motions will be heard at Special Terms held with the Trial
Terms except in cases triable in the coimty where the Special
Term is held, or triable in an adjoining county not within the
district; or upon order to show cause granted by one of the
justices of the Supreme Court residing within the Sisfth Judicial
District.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable vsdthout a jury. Notes
of issue filed shall state whether the action be triable with or with-
out a jury. Those cases triable with a jury shall be first placed
upon the calendar, and those triable without a jury shall follow.

Local Bules of Peactice. 683

Notes of issue are required to be filed in the clerk's oSice
twelve days before the sitting of the court.

Where the return has been filed the requisite time, the clerk
-will place the cause upon the calendar of the term for which a
note of issue has been duly filed by either party, but need not
place any cause upon the calendar until a note of issue in the
cause has been first filed.

After a note of issue has been once filed in the cause, the clerk
-will place the cause upon the calendar of every subsequent regular
term of the court until such appeal has been disposed of, without
the filing of any new note of issue.

No party wiU be allowed to move the cause and take default,
or have argument of the appeal at any term, unless the cause
has been duly noticed for argument by one party or the other
for that particular term.

And no motion will be entertained to dismiss an appeal for
failure to bring it to a hearing within section 3062, Code of Civil
Procedure, at any term unless the appeal has been duly noticed
for argument for that term, by one of the parties.

SCHUYLER COUNTY.
Day Calendar Rules.

1. The first ten causes upon the calendar, in addition to such
•causes as shall be moved to the head of the calendar as preferred
causes, shall constitute the day calendar for the first day, and each
day thereafter the same shall be made up of causes from those not
disposed of on the day calendar, and cases from the general calen-
dar in which a request to place upon the day calendar stating the
number of the cause upon the general calendar shall be filed with
the clerk before 4 o'clock p. m. the previous day, by an attorney
who has noticed the cause for trial, and such causes shall be
placed on the day calendar according to their priority upon the
general calendar.

2. Causes upon the day calendar including those upon the first
day calendar, not disposed of, shall remain upon and retain their
priority on the day calendar until finally disposed of.

3. The clerk shall make up the day calendar at 4 o'clock
•each day.

684 Senega County — Supeesie Couet.

4. Causes placed on the calendar must be disposed of when
reached, and will not be reserved except for special reasons arising
after they have been placed upon such day calendar and satisfac-
tory to the court. And after a case has been put upon the day
calendar no motion will be entertained to put the case over the
term except for causes arising after the cause is placed upon such
day calendar.

6. Attorneys shall not reserve causes generally, nor reserve
them to a day certain, except upon application made to and ap-
proved by the court, before such cause shall be placed upon the
day calendar. When reserved to a day certain by permission of
the court, they are to be placed upon the day. calendar after the
causes undisposed of already upon such calendar and only upon
notice filed with the clerk before 4 o'clock of the preceding
day, by a party who has noticed said cause for trial.

Notes of issue are required to be filed in the clerk's office
twelve days before the sitting of the court, in order to have the
calendar ready for delivery five days before the sitting of the
court.

The calendar for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. Notes
of issue filed shall state whether the action be triable with or with-
out a jury. Those cases triable with a jury shall be first placed
upon the calendar, and those triable without a jury shall follow.

SENECA COUNTY.

Notes of issue are required to be filed in the clerk's office twelve
days before the sitting of the court, in order to have the calendar
ready for delivery five days before the sitting of the court.

Local Rules of Practice. 685

ST. LAWRENCE COUNTY — SUPREME COURT.
Calendar Rules.

The calendar will be called as usual at tlie opening of court
on the first day.

The first twenty, causes will constitute the day calendar for the
first day of the term.

Before adjournment each day, sufiicient causes, arranged ac-
cording to their order on the general calendar, as affected by
previous day calendars, will constitute the calendar for the next
day.

Causes not ready when reached on the day calendar will be
stricken from the general calendar, unless otherwise specially
ordered.

Causes may be set down the first day for a future day but
subject to adjournment of court if sufficient cases are not ready
continuously to provide business.

STEUBEN COUNTY — SUPREME COURT;

"Every cause placed on the calendar of a General Term,
Circuit or Special Term for the trial of equity cases shall be
moved for argument or trial when reached in its order, and shall
not Be reserved, or put over, except by consent of the court;
and if passed without being so reserved or put over, it shall be
entered on all subsequent calendars, as of the date when passed,
and no term fee shall be taxed therein for any subsequent term."

This rule will be rigidly enforced.

No reservation will be allowed any of the first five causes on
the calendar except by order of the court, because of sickness of
counsel or unavoidable absense of a witness, to be shown by
affidavit. This order shall be printed at the top of the list of
causes.

686 SuFEOLK County — County Couet. [Rule E.

SUFFOLK COUNTY — COUNTY COURT.

RTJIE I.

Matters in these courts, except as otherwise specially directed,
will be taken up and disposed of in the following order:

1. Ex parte business and motions.

2. Civil jury trials.

3. Criminal jury trials.

4. Appeals on questions of law, and trials of issues of fact
by the court.

RULE n.

If a justice of the peace shall neglect to make and file his re-
turn within the time prescribed by law, either party may apply
to the court, ex parte, for an order requiring such justice to make
and file his return.

RULE in.

Before an appeal has been noticed for argument, or within
ten days after the return is filed, either party may obtain one
order, ex parte, for an amended return.

RULE IV.

On appeals in criminal actions the return shall contain all the
testimony and be made substantially in the same form and man-
ner as on an appeal on questions of law only, in a civil action.

RULE V.

A calendar of criminal actions to be tried at each jury term
will be prepared by the district attorney and filed with the
clerk on or before the Monday next preceding the first day of
each term. These causes will be placed on such calendar in
the order in which the district attorney expects to move them
for trial, subject to such modification as he may find to be neces-
sary or advisable. Such calendar shall be printed immediately
following and on the same calendar with the civil causes.

Eiule 11] Local Rules of Pbaotice. 687

RULE VI.

All motions on behalf of defendants in criminal actions and
all applications for postponement of trial, shall be made at the
opening of court on the first Monday thereof, and such motions
and applications will not be heard later in the term, except for
sufficient reasons and good cause shown for the delay.

RULE vn.

iN'otes of issue on appeals (on law or facts) in civil actions
and on appeals in criminal actions, must be filed with the clerk
at least eight days before the commencement of the term; and
notes of issue in actions originally brought in the County Court,
must be filed with the clerk at least twelve days before the com-
mencement of the term.

RULE vm.

The clerk will prepare a calendar for each jury term of the
County Court (as specified in rules 7 and 5) and cause the
same to be printed and furnish a sufficient number of copies for
the use of the court and bar.

RULE IX.

The district attorney will furnish the county judge with
copies of all indictments which he proposes to try at least ten
days prior to the first day of the term at which he moves them
for trial.

RULE X.

The plaintiff's or appellant's attorney, as the case may be,
will furnish the county judge with copies of all the pleadings
in each civil suit at least two weeks before the first day of the
term at which the cause is noticed for trial.

RULE XI.

In all actions and proceedings, both civil and criminal, tried
by the court without a jury, in which decision is reserved, and
in all appeal cases, briefs will be furnished the court by both
sides within fifteen days after final submission to the court, un-
less a shorter or longer period is mutually agreed on and ap-
proved by the court.

688 Tioga County — Supeeme Couet. [Rule 12

RULE XII.

The practice in other respects shall be governed by the rules
of the Supreme Court, so far as the same are applicable.

TIOGA COUNTY — SUPREME COURT.

Special Terms, for the hearing of ex parte applications and
motions on consent, will be held at Supreme Court chambers at
Binghamton, Oneonta, Canastota and Elmira on Saturday of
every week, when the resident justice is not otherwise engaged,
except in July and August.

No motions will be heard at Special Terms held with the Trial
Terms, except in cases triable in the county where the Special
Term is held, or triable in an adjoining county not within the
district; or upon order to show cause, granted by one of the
justices of the Supreme Court residing in the sixth judicial
district.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury. Ifotes
of issue filed shall state whether the action be triable with or
without a jury. Those cases triable with a jury shall be first
placed upon the calendar, and those triable without a jury shall
follow. The call of the calendar in all the counties will be
governed by the day calendar rules, which follow.

Day Calendar Rules.
First. The first ten causes upon the calendar, in addition to
such causes as shall be moved to the head of the calendar as pre-
ferred causes, shall constitute the day calendar for the first
day, and each day thereafter the same shall be made up of
causes from those not disposed of on the day calendar; and causes
from the general calendar in which a request to place upon
the day calendar, stating the number of the cause upon the gen-
eral calendar, shall be filed with the clerk before four o'clock
p. m. the previous day, by an attorney who has noticed the
cause for trial, and such causes shall be placed on the day calen-
dar according to their priority upon the general calendar.

Eule 26] Local Rules of Practice. 689

Second. Causes upon the day calendar (including those upon
the first day calendar) not disposed of, shall remain upon, and
retain their priority on, the day calendar until finally disposed of.

Third. The clerk shall make up the day calendar at four
o'clock each day.

Fourth. Causes placed on the calendar must be disposed of
-when reached, and will not be reserved except for special reasons
arising after they have been placed upon such day calendar, and
satisfactory to the court- And after a case has been put upon
the day calendar, no motion will be entertained to put the case
over the term, except for causes arising after the cause is placed
npon such day calendar.

Fifth. All causes not placed on the day calendar will be con-
sidered as passed down to the last cause, which shall be regularly
placed upon the day calendar, unless reserved by the court, or
as hereinafter provided.

Sixth. Attorneys shall not reserve causes generally, nor reserve
them to a day certain, except upon application, made to and
approved by the court, before such cause shall be placed upon
the day calendar. When reserved to a day certain by permission
•of the court, they are to be placed upon the day calendar after
the causes undisposed of already upon such calendar, and only
upon notice, filed with the clerk before four o'clock of the pre-
ceding day, by a party who has noticed said cause for trial.

Seventh. The number of causes for the day calendar shall
always be under the direction of the presiding justice, and
nothing in this order contained is to interfere with the moving
•of preferred causes or the taking of inquests.

RULE XX.

It shall be the duty of the attorney, by whom the copy plead-
ings shall be furnished for the use of the court on a trial, to
plainly designate, on each pleading, the part or parts thereof
claimed to be admitted or controverted by the succeeding
pleading.

RUIE XXVI.

* * * Every cause placed on the calendar of the Trial
Term or Sipecial Term, for the trial of equity cases^ shall be
44

690 Tompkins County — Stjpeeme Couet. [Eule 26

moved for argument, on trial, when reached in its order, and
shall not be reserved or put over, except by consent of the court,
unless otherwise permitted by special rule, and, if passed with-
out being so reserved or put over, it shall be entered on all sub-
sequent calendars as of the date when passed, and no term fee
shall be taxed therein for any subsequent term.

The clerk is directed to enter on his minutes the title of every
cause passed, the date when passed, and to keep in his office
a list of passed causes: and, whenever a passed cause is placed
upon a calendar, the word " passed," followed by the date when
passed, shall be entered under the date of issue.

If two or more causes are passed upon the same day, the right
to priority as between them on subsequent calendars shall be de-
termined by the date of issue.

The clerk is directed to print in every calendar Rule XX, the
foregoing extract from Eule XXXVI, and the foregoing rule for
carrying into effect Eule XXXVI, which was adopted on Decem-
ber 5, 1881, and ordered in the minutes of the court.

TOMPKINS COUNTY — SUPREME COURT.

Special Term for the hearing of ex parte applications and
motions on consent will be held at Supreme Court chambers at
Binghamton, Oneonta, Canastota and Elmira on Saturday of
every week when the resident justice is not otherwise engaged
except July and August.

Wo motion will be heard at Special Terms held with the Trial
Terms except in cases triable in the county where the Special
Term is held or triable in an adjoining county not within the
district; or upon order to show cause granted, by one of the
justices of the Supreme Court residing in the Sixth Judicial
District.

The calendars for Trial and Special Terms shall contain all
cases, those triable with and those triable without a jury.

Notes of issue filed shall state whether the action be triable
with or without a jury. Those cases triable with a jury shall
be first placed upon the calendar and those triable without a
jury shall follow.

Local Rules of Peactice. 691

The call of tlie calendar will be governed by tbe day calendar
rules which follow:

First: The first ten causes upon the calendar shall constitute
the day calendar for the first day, and each day thereafter the
same shall be made up of eight causes from those not disposed
of on the day calendar, and cases from the general calendar
in which a request to place upon the day calendar, stating the
number of the cause upon the general calendar shall be filed with
the clerk before 4: o'clock p. m., the previous day, by an attorney
who has noticed the cause for trial and such causes shall
be placed on the day calendar according to their priority upon
the general calendar.

Second: Causes upon the day calendar including those upon
the first day calendar, not disposed of shall remain upon and re-
tain their priority on the day calendar until finally disposed of.

Third : The clerk shall make up the day calendar at i o'clock
each day.

Fourth: Causes placed on the calendar must be disposed of
when reached and will not be reserved except for special reasons
arising after they have been placed upon such day calendar and
satisfactory to the court. And after a case has been put upon
the day calendar no motion will be entertained to put the case
over the term except for causes arising after the cause is placed
upon such day calendar.

Sixth: Attorneys shall not reserve causes generally, nor re-
serve them to a day certain, except upon application made to and
approved by the court, before such cause shall be placed upon
the day calendar. When reserved to a day certain by permission
of the court, they are to be placed upon the day calendar after
the causes undisposed of already upon such calendar and only
upon notice filed with the clerk before 4 o'clock of the pre-
ceding day, by a party who has noticed said cause for trial.

Seventh: The number of causes for the day calendar shall
always be under the direction of the presiding justice, and

6'92 Tompkins County — Supkeme Cotjet. [Eule 39

nothing in this order contained is to interfere with the taking of

inquests.

To Attorneys.

ISTotes of issue are required to be filed in the clerk's ofiice
twelve days before the sitting of the court. Unless this rule is
observed, causes cannot be entered on the calendar.

Notes of issue should be written only on one side of the paper.
To insure accuracy, names should be legibly written and s.pelled
correctly.

By section 3307, subdivision 4, of the Code of Civil Procedure,
the sheriff is entitled to the following fee:

For notifying jurors to attend a Trial Term of a court of
record, fifty cents for each cause placed upon the calendar for
trial by a jury, to be paid by the party first putting the cause on
the calendar for that term. But the sheriff is not entitled to more
than one dollar and fifty cents for calendar fees in one action.
The clerk shall not put a cause upon the calendar for trial by
a jury until the fee specified in this subdivision is paid to him
for the use of the sheriff.

Rules Adopted by the Court, and Ordered Printed in Each Calendar.
RULE XX.

EXTRACT FEOM EULE XXXIX.

Every cause placed on the calendar of a General Term Circuit,
or Special Term for the trial of equity cases, shall be moved for
argument or trial when reached in its order and shall not be
reserved, or put over, except by consent of the court; and, if
passed without being so reserved, or put over, it shall be entered
on all subsequent calendars as of the date when passed and no
term fee shall be taxed therein for any subsequent term.

The clerk is directed to enter in his minutes the title of every
cause passed, the date when passed, and to keep in his office

Eule 39] Local Eules of Pkaoticb. 603

a list of passed causes; and whenever a passed cause is placed
upon a calendar, the word " passed," followed by the date when
passed, shall be entered under the date of issue.

If two or more causes are passed upon the same day, the right
to priority as between them on subsequent calendars, shall be
determined by the date of issue.

The clerk is directed to print in every calendar — Rule XX
— the foregoing extract from Rule XXXIX - — and the foregoing
rule for carrying into effect Rule XXXIX which is, this lith
day of March, 1881, adopted and ordered entered in the minutes
of the court.

WARREN COUNTY.

]!^otes of issue are required to be filed in the clerk's office at
least twelve days before the sitting of the court.

When the date of issue is not given the cause is placed at the
end of the proper calendar.

Calendar fee required.

WASHINGTON COUNTY.

IvTotes of issue are required to be filed in the clerk's office at
least twelve days before the court convenes.

When the date of issue is not given, the cause will be placed
at the end of the proper calendar.

When the note of issue filed with the clerk does not inform
him wheth,er the issue is of fact or of law, nor whether the same
is triable by a jury or by a court without a jury, the cause will
be placed upon the jury calendar.

Calendar fee not required.

WAYNE COUNTY.

N'otes of issue are required to be filed in the clerk's office
twelve days before the sitting of the court

The trial fee of one dollar is payable by the parly bringing th©
same on, and must be paid to the clerk when the case is called
and before proceeding to trial.

694' Westohestee County — Supeeme Couet.

WESTCHESTER COUNTY.
Supreme Court Calendar Rules.

1. Any cause may be set down for a day by a stipulation filed
with the clerk, before it appears on the day calendar, except that
it may not be advanced out of its order in that way. Causes
marked " off " on the call of the day calendar may be set downfor
a day of any subsequent term only, by stipulation or a five days'
notice to the other side filed with the clerk.

2. Causes will not be set down for days upon the call of the
day calendar. The answer must be " ready " or " off."

3. The first day a cause is on the day calendar it will be held
for that day if marked " ready."

4. The court will pay no regard to engagements of counsel else-
where, unless a signed written statement thereof by the attorney
or counsel (which need not be sworn to) be submitted, giving the
title of the cause in which the engagement is, in what court and
part, and before what judge such cause is on trial, and when the
trial commenced, and how long it is likely to continue. Engage-
ment in an Appellate Court will not be regarded, unless stated in
the same way and with equal precision. An oral statement of any
engagement in this county will suffice.

5. All other excuses or motions for delay, or for holding or
postponing causes must be presented by affidavit on the call of the
day calendar in order to be considered for any purpose, includ-
ing a motion in the Special Term to open a default.

6. The court will not hear oral statements or arguments in
respect of such engagements, excuses or motions, but will pass
upon such written statements, or affidavits thereof, by indorse-
ments thereon, after the call of the day calendar, and file the
same with the clerk.

7. Not more than two causes will be held ready on the day
calendar for one counsel in addition to the one he may be engaged
in trying in this county, or if he be engaged out of this county,
and in all cases the counsel who is to try the cause must be desig-
nated on the call of the day calendar, if required by the court.

8. If a cause answered " ready " by the plaintiff be afterward
answered " off " by the plaintiff, or made unduly obstructive by

Local Rules of Peactice. 6i95

tlie unreadiness of the plaintiff, it may be stricken from, or sent
i;o the foot of the general calendar.

9. A calendar of causes noticed for a term will be made up and
printed by the clerk; the numbering thereof following consecu-
tively the highest number on the calendar of the last preceding
term. A cause once placed on a calendar will retain its number
until it is finally disposed of, unless, by directions of the court, a
new calendar of all causes undisposed of is made up, in which
event it will receive a new number.

County Court Calendar Rules.

1. Civil causes vnll be tried at the opening of the term and
iDefore the criminal business is taken up.

2. Causes appearing upon this calendar will be marked ready
or off on the call.

3. The clerk vdll make up a day calendar pursuant to section
977 of the Code of Civil Procedure, as amended in 1903, of the
first fifteen cases marked ready, also a reserved calendar of the
following fifteen ready cases, and add to each from day to day so
that there will be fifteen cases on the day calendar and fifteen
cases on the reserve calendar each day.

4. Cases appearing for the first time on the reserve calendar
will be passed for the day upon the appearance or written stipula-
tion of attorneys. No cases can be set down for a specified day
without the approval of the court, but cases will not be set down
for days on the call of the day calendar.

5. A cause marked " off " the term will be placed upon the
calendar for any subsequent term by the clerk, upon filing a
stipulation, or a notice to the other side that the ease will be
placed upon the calendar. Such stipulation or notice of restoral
to be filed with the clerk (with proof of service); at least twelve
days before the opening of the term.

To Attorneys.

The trial fee of one dollar is payable by the party bringing the
same on, and must be paid to the clerk when the case is called
and before proceeding to trial.

The calendar fee of fifty cents must be paid to the clerk for the
use of the sheriff by the party first putting the cause on calendar,

696 Wyoming County — Supreme Court.

at the time of filing his note of issue. (See sub. 4, § 3307, Code
Civ. Pro.) Unless this requirement is observed, causes cannot
be placed on the calendar.

Notes of issue are required to be filed in the clerk's office tvi^elve
days before the sitting of the court. Unless this rule is observed,
causes cannot be entered on the calendar.

Where a party has served a notice of trial, and filed a note of
issue, for a term at which the case is not tried, it is not necessary
for him to serve a new notice of trial or file a new note of issue
for a succeeding term ; and the action must remain on the calen-
dar until it is disposed of. (See chap. 61, Laws 1893.)

Notes of issue should be written only on one side of the paper.
To insure accuracy, names should be legibly written and spelled
correctly.

WYOMING COUNTY.

[For Supreme Court rules applicable to Wyoming county, see
under Allegany county.].

THE JUDICIARY OF THE STATE OF NEW YORK.

ARTICLE VI OF THE CONSTITUTION OF THE STATE OF NEW YORK.

Aeticle VI.

Supreme Court; how constituted; judicial districts. — Section
1. The Supreme Court is continued with general jurisdiction
in law and equity, subject to such appellate jurisdiction of the
Court of Appeals as now is or may be prescribed by law not
inconsistent with this article. The existing judicial districts of
the State are continued until changed as hereinafter provided.
The Supreme Court shall consist of the justices now in office,
and of the judges transferred thereto by the fifth section of this
article, all of whom shall continue to be justices of the Supreme
Court during their respective terms, and of twelve additional
justices who shall reside in and be chosen by the electors of,
the several existing judicial districts, three in the first district,
three in the second, and one in each of the other districts; and
of their successors. The successors of said justices shall be chosen
by the electors of their respective judicial districts. The legis-
lature may alter the judicial districts once after every enumera-
tion under the Constitution, of the inhabitants of the State, and
thereupon reapportion the justices to be thereafter elected in the
districts so altered. The legislature may from time to time in-
crease the number of justices in any judicial district, except that
the number of justices in the first and second district or in any
of the districts into which the second district may be divided,
shall not be increased to exceed one justice for each eighty thou-
sand or fraction over forty thousand of the population thereof,
as shown by the last State or federal census or enumeration,
and except that the number of justices in any other district shall
not be increased to exceed one justice for each sixty thousand or
fraction over thirty-five thousand of the population thereof as
shown by the last State or Federal census or enumeration. The
legislature may erect out of the Second Judicial District as now
constituted another judicial district and apportion the justices

[697]

698 Judiciary of State or New York.

in o£Sce between the districts, and provide for tlie election of
additional justices in the new district not exceeding the limit
herein provided.

Judicial departments; Appellate Division, how constituted;
Governor to designate justices; reporter; time and place of hold-
ing Courts. — ' § 2. The legislature shall divide the State into
four judicial departments. The first department shall consist of
the county of New York; the others shall be bounded by county
lines, and be compact and equal in population as nearly as may
be. Once every ten years the legislature may alter the judicial
departments, but without increasing the number thereof. 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 neces-
sary to a decision. No more than five justices shall sit in any
case. Erom all the justices elected to the Supreme Court the
Governor shall designate those who shall constitute the Appellate
Division in each department; and he shall designate the pre-
siding justice thereof, who shall act as such during his term of
office, and shall be a resident of the department. The other
justices shall be designated for terms of five years or the unex-
pired portions of their respective terms of office, if less than five
years. From time to time as the terms of such designations
expire, or vacancies occur, he shall make new designations. A
majority of the justices so designated to sit in the Appellate
Division, in each department shall be residents of the department.
He may also make temporary designations in case of the absence
or inability to act of any justice in the Appellate Division, or in
case the presiding justice of any Appellate Division shall certify
to him that one or more additional justices are needed for the
speedy disposition of the business before it. Whenever the Ap-
pellate Division in any department shall be unable to dispose
of its business within a reasonable time, a majority of the presid-
ing justices of the several departments at a meeting called by
the presiding justice of the department in arrears may transfer
any pending appeals from such department to any other depart-
ment for hearing and determination. No justice of the Appel-

JuBiciAEY OF State of New Yoek. 699

late Division shall, within the department to which he may be
designated to perform the duties of an appellate justice, 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 Appel-
late Division, or to the hearing and decision of motions submitted
by consent of counsel, but any such justice, when not actually
engaged in performing the duties of such appellate justice in
the department to which he is designated, may hold any term
of the Supreme Court and exercise any of the powers of a justice
of the Supreme Court in any county or judicial, district in any
other department of the State. From and after the last day of
December, eighteen hundred and ninety-five, the Appellate Di-
vision shall have the jurisdiction now exercised by the Supreme
Court at its General Terms and by the General Terms of the
Court of Common Pleas for the city and county of New York,
the Superior Court of the city of New York, the Superior Court
of Buffalo and the city of Brooklyn, and such additional juris-
diction as may be conferred by the legislature. It shall have
power to appoint and remove a reporter. The justices of the
Appellate Division in each department shall have power to fix
the times and places for holding 'Special Terms therein, and
to assign the justices in the departments to hold such terms; or
to make rules therefor.

Judge or justice not to sit in reviejv; testimony in equity cases.
— § 3. 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.
The testimony in equity cases shall be taken in like manner as
in cases at law; and, except as herein otherwise provided, the
legislature shall have the same power to alter and regulate the
jurisdiction and proceedings in law and in equity that it has here-
tofore exercised.

Terms of office; vacancies, Jiow filled. — § 4. The official terms
of the justices of the Supreme Court shall be fourteen years from
and including the first day of January next after their election.
When a vacancy shall occur otherwise than by expiration of term
in the offijce of justice of the Supreme Court the same shall be

700 JuDiciAEY OF State of JSTew Yoek.

filled for a full term, at the next general election, happening
not less than three months after such vacancy occurs; and, until
the vacancy shall be so filled, the Governor by and with the advice
and consent of the Senate, if the Senate shall be in session, or if
not in session the Governor, may fill such vacancy by appoint-
ment, which shall continue until and including the last day of
December next after the election at which the vacancy shall be
filled.

City Oourts abolished; judges hecome justices of Supreme
Court; salaries; jurisdiction vested in Supreme Court. — § 5.
The Superior Court of the city of New York, the Court of Com-
mon Pleas for the city and county of ISTew York, the Superior
Court of Buffalo, and the city Court of Brooklyn, are abolished
from and after the first day of January, one thousand eight hun-
dred and ninety-six, and thereupon the seals, records, papers and
documents of or belonging to such Courts, shall be deposited in
the offices of the clerks' of the several counties in which said Courts
now exist; and all actions and proceedings then pending in such
Courts shall be transferred to the Supreme Court for hearing and
determination. The judges of said Courts in office on the first
day of January, one thousand eight hundred and ninety-six,
shall, for the remainder of the terms for which they were elected
or appointed, be justices of the Supreme Court; but they shall
sit only in the counties in which they were elected or appointed.
Their salaries shall be paid by the said counties respectively, and
shall be the same as the salaries of the other justices of the Su-
preme Court residing in in the same counties. Their successors
shall be elected as justices of the Supreme Court by the electors
of the judicial districts in which they respectively reside.

The jurisdiction now exercised by the several Courts hereby
abolished, shall be vested in the Supreme Court. Appeals from
inferior and local Courts now heard in the 'Court of Common
Pleas for the city and county of New York and the Superior
Court of Buffalo, shall be heard in the Supreme Court in such
manner and by such justice or justices as the Appellate Divisions
in the respective departments which include New York and Buf-
fallo shall direct, unless otherwise provided by the legislature.

JuDiciAEY OF State of New Yoek. YOl

Circuit Courts and Courts of Oyer and Terminer abolished. —
§ 6. Circuit Courts and Courts of Oyer and Terminer are abol-
ished from and after the last day of December, one thousand
eight hundred and ninety-five. All their jurisdiction shall there-
upon be vested in the Supreme Court, and all actions and pro-
ceedings then pending in such Courts shall be transferred to the
Supreme Court for hearing and determination. Any justice of
the Supreme Court, except as otherwise provided in this article,
may hold Court in any county.

Court of Appeals. — § 7. The Court of Appeals is continued.
It shall consist of the chief judge and associate judges now in
office, who shall hold their offices until the expiration of their
respective terms, and their successors, who shall be chosen by the
electors of the State. The official terms of the chief judge and
associate judges shall be fourteen years from and including the
first day of January next after their election. Five members of
the Court shall form a quorum, and the concurrence of four shall
he necessary to a decision. The Court shall have power to ap-
point and to remove its reporter, clerk and attendants. When-
ever and as often as a majority of the judges of the Court of
Appeals shall certify to the Governor that said Court is unable,
by reason of the accumulation of causes pending therein, to hear
and dispose of the same with reasonable speed, the Governor
shall designate not more than four justices of the Supreme Court
to serve as associate judges of the Court of Appeals. The jus-
tices so designated shall be relieved from their duties as justices
of the Supreme Court and shall serve as associate judges of the
Court of Appeals until the causes undisposed of in said Court are
reduced to two hundred, when they shall return to the Supreme
Court. The Governor may designate justices of the Supreme
Court to fill vacancies. ISTo justice shall serve as associate judge
of the Court of Appeals except while holding the office of justice
of the Supreme Court, and no more than seven judges shall sit
in any case.

Vacancy in Court of Appeals, how filled. — § 8. When a va-
cancy shall occur otherwise than by expiration of term, in the office
of chief or associate judge of the Court of Appeals, the same

702 JuDiciAEY OF State of J^Tew Yoek.

stall be filled, for a full term, at the next general election happen-
ing not less than three months after such vacancy occurs; and
until the vacancy shall he so filled, the Governor, by and with
the advice and consent of the Senate, if the Senate shall be in
session, or if not in session the Governor, may fill such vacancy
by appointment. If any such appointment of chief judge shall
be made from among the associate judges, a temporary appoint-
ment of associate judge shall be made in like manner ; but in such
case, the person appointed chief judge shall not be deemed to va-
cate his ofiice of associate judge any longer than until the expira-
tion of his appointment as chief judge. The powers and
jurisdiction of the Court shall not be suspended for want of
appointment or election, when the number of judges is sufficient
to constitute a quorum. All appointments under this section shall
continue until and including the last day of December next after
the election at which the vacancy shall be filled.

Jurisdiction of Court of Appeals. — § 9. After the last day of
December, one thousand eight hundred and ninety-five, the juris-
diction of the Court of Appeals, except where the judgment is
of death, shall be limited to the review of questions of law. !N^o
iinanimous decision of the Appellate Division of the Supreme
Court that there is evidence supporting or tending to sustain a
finding of fact or a verdict not directed by the Court, shall be
reviewed by the Court of Appeals. Except where the judgment
is of death, appeals may be taken, as of right, to said Court only
from judgments or orders entered upon decisions of the Appel-
late Division of the Supreme Court, finally determining actions
or special proceedings, and from orders granting new trials on
exceptions, where the appellants stipulate that upon affirmance,
judgment absolute shall be rendered against them. The Appel-
late Division in any department may, however, allow an appeal
upon any question of law which, in its opinion, ought to be re-
viewed by the Court of Appeals.

The legislature may further restrict the jurisdiction of the
Court of Appeals and the right of appeal thereto, but the right
to appeal shall not depend upon the amount involved.

The provisions of this section shall not apply to orders made or
judgments rendered by any General Term before the last day of

JuDiciAEY OF State of New York. 703

December, one thousand eight hundred and ninety-five, but ap-
peals therefrom may be taken under existing provisions of law.

Judges not to hold any other office. — § 10. The judges of
the Court of Appeals and the justices of the Supreme Court shall
not hold any other office or public trust. All votes for any of
them, for any other than a judicial oflBce, given by the legisla-
ture or the people, shall be void.

Removal of judges. — § 11. Judges of the Court of Appeals
and justices of the Supreme Court may be removed by concur-
rent resolution of both houses of the legislature, if two-thirds of
all the members elected to each house concur therein. All other
judicial officers, except justices of the peace and judges or jus-
tices of inferior Courts not of record, may be removed by the
Senate, on the recommendation ol the Governor, if two-thirds of
all the members elected to the Senate concur therein. But no
officer shall be removed by virtue of this section except for cause,
which shall be entered on the journals, nor unless he shall have
been served with a statement of the cause alleged, and shall have
had an opportunity to be heard. On the question of removal, the
yeas and nays shall be entered on the journal.

Compemsation; age restriction; assignment hy Gomemor. —
§ 12. ISTo person shall hold the office of judge or justice of any
court longer than until and including the last day of December
next after he shall be seventy years of age. Each justice of the
Supreme Court shall receive from the State the sum of ten thou-
sand dollars per year. Those assigned to the Appellate Divisions
in the Third and Fourth Departments shall each receive in addi-
tion the sum of two thousand dollars, and the .presiding justices
thereof the sum of two thousand five hundred dollars per year.
Those justices elected in the First and Second Judicial Depart-
ments shall continue to receive from their respective cities, coun-
ties or districts, as now provided by law, such additional compen-
sation as will make their aggregate compensation what they are
now receiving. Those justices elected in any judicial depart-

104: Judiciary of State of New Yoek.

ment other than the first or second, and asisigned to the Appel-
late Divisions of the First and Second Departments shall, while
so assigned, receive from those departments, respectively, as now
provided by law, such additional sum as is paid to the justices
of those departments. A justice elected in the Third or Fourth
Department assigned by the Appellate Division or designated by
the Governor to hold a trial or special term in a judicial district
other than that in which he is elected shall receive in addition
ten dollars per day for expenses while actually so engaged in
holding such term, which shall be paid by the State and charged
upon the judicial district where the service is rendered. The
compensation herein provided shall be in lieu of and shall exclude
all other compensation and allowance to said justices for expenses
of every kind and nature whatsoever. The provisions of this
section shall apply to the judges and justices now in office and to
those hereafter elected.

Trial of impeachments. — § 13. The Assembly shall have the
power of impeachment, by a vote of a majority of all the mem-
bers elected. The Court for the trial of impeachments shall be
composed of the president of the Senate, the senators, or the major
part of them, and the judges of the Ctiurt of Appeals, or the
major part of them. On the trial of an impeachment against
the Governor or Lieutenant-Governor, the Lieutenant-Governor
shall not act as a member of the Court. No judicial officer shall
exercise his office, after articles of impeachment against him shall
have been preferred to the Senate, until he shall have been ac-
quitted. Before the trial of an impeachment the members of the
Court shall take an oath or affirmation truly and impartially to
try the imipeachment according to the evidence, and no person
shall be convicted without the concurrence of two-thirds of the
members present. Judgment in cases of impeachment shall not
extend further than to removal from office, or removal from office
and disqualification to hold and enjoy any office of honor, trust
or profit under this State ; but the party impeached shall be liable
to indictment and punishment according to law.

County Courts. — § 14. The existing County Courts are con-
tinued, and the judges thereof now in office shall hold their offices

JuDiciAEY OF State of New Yoek. 705

until the expiration of their respective terms. In the county of
Kings there shall be two county judges and the additional county
judge shall be chosen at the next general election held after the
adoption of this article. The successors of the several county
judges shall be chosen by the electors of the counties for the
term of six years. County Courts shall have the powers and
jurisdiction they now possess, and also original jurisdiction in
actions for the recovery of money only, where the defendants re-
side in the county, and in which the complaint demands judg-
ment for a sum not exceeding two thousand dollars. The legis-
lature may hereafter enlarge or restrict the jurisdiction of the
County Courts, provided, however, that their jurisdiction shall
not be so extended' as to authorize an action therein for the re-
covery of money only, in which the sum demanded exceeds two
thousand dollars, or in which any person not a resident of the
county is a defendant.

Courts of Sessions, except in the county of New York, are
abolished from and after the last day of December, one thousand
eight hundred and ninety-five. All the jurisdiction of the Court
of Sessions in each county, except the county of ISTew York, shall
thereupon be vested! in the County Court thereof, and all actions
and proceedings then pending in such Courts of Sessions shall
be transferred to said County Courts for hearing and determina-
tion. Every county judge shall perform such duties as may be
required by law. His salary shall be established by law, payable
out of the county treasury. A county judge of any county may
hold County iCourts in any other county when requested by the
judge of such other county.

Surrogates' Courts; surrogates, their powers and jurisdiction;
vacancies. — § 15. The existing Surrogates' Courts are contin-
ued, and the surrogates now in office shall hold their offices until
the expiration of their terms. Their successors shall be chosen
by the electors of their respective counties, and their terms of
office shall be six years, except in the county of New York, where
they shall continue to be fourteen years. Surrogates and Surro-
gates' Courts shall have the jurisdiction and powers which the
surrogates and existing Surrogates' Courts now possess, until
otherwise provided by the legislature. The county judge shall
45 '

706 Judiciary of State of New Yoek.

be surrogate of his county, except where a separate surrogate
has been or shall be elected. In counties having a population
exceeding forty thousand, wherein there is no separate surrogate,
the legislature may provide for the election of a separate officer
to be surrogate, whose term of office shall be six years. When the
surrogate shall be elected as a separate officer his salary shall be
established by law, payable out of the county treasury. ISfo county
judge or surrogate shall hold office longer than until and includ-
ing the last day of December next after he shall be seventy years
of age. Vacancies occurring in the office of county judge or sur-
rogate shall be filled in the same manner as like vacancies occur-
ring in the Supreme Court. The compensation of any county
judge or surrogate shall not be increased or diminished during
his term of office. For the relief of Surrogates' Courts the leg-
islature may confer upon the Supreme iCourt in any county hav-
ing a population exceeding four hundred thousand, the powers
and jurisdiction of surrogates, with authority to try issues of
fact by jury in probate cases.

Local judicial officers.— § 16. The legislature may, on appli-
cation of the board of supervisors, provide for the election of
local officers, not to exceed two in any county, to discharge the
duties of county judge and of surrogate, in cases of their ina-
bility or of a vacancy, and in such other eases as may be provided
by law, and to exercise such other powers in special cases as are
or may be provided by law.

Justices of the peace; District Court' justices. — § 17. The
electors of the several towns shall, at their annual town meetings,
or at such other time and in such manner as the legislature may
direct, elect justices of the peace, whose term of office shall be
four years. In case of an election to fill a vacancy occurring
before the expiration of a full term, they shall hold for the residue
of the unexpired term. Their number and classification may be
regulated by law. Justices of the peace and judges or justices
of inferior Courts not of record, and their clerks, may be re-
moved for cause, after due notice and an opportunity of being
heard by such Courts as are or may be prescribed by law. Jus-
tices of the peace and District Court justices may be elected in

Judiciary of State of New Yoek. 707

the different cities of this State in such manner, and with such
powers, and for such terms, respectively, as are or shall he pre-
scrihed hy law ; all other judicial officers in cities, whose election
or appointment is not otherwise provided for in this article, shall
he chosen by the electors of such cities, or appointed by some-
local authorities thereof.

Inferior local Courts. — § 18. Inferior Courts of civil and
criminal jurisdiction may be established by the legislature, but
no inferior local Court hereafter created shall be a Court of
record. The legislature shall not hereafter confer upon any in-
ferior or local Court of its creation, any equity jurisdiction or
any greater jurisdiction in other respects than is conferred upon
County Courts by or under this article. Except as herein other-
wise provided, all judicial officers shall be elected or appointed i
at such times and in such manner as the legislature may direct..

Clerics of Courts. — § 19. Clerks of the several counties shall
be clerks of the Supreme Court, with such powers and duties
as shall be prescribed by law. The justices of the Appellate
Division in each department shall have power to appoint and to
remove a clerk, who shall keep his office at a place to be desig-
nated by said justices. The clerk of the .Court of Appeals shall
keep his office at the seat of government. The clerk of the Court
of Appeals and the clerks of the Appellate Division shall receive
compensation to be established by law and paid out of the public
treasury.

No judicial officer, except justice of the peace, to receive fees;
not to act as attorney or counselor. — § 20. 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 Ap-
peals, or justice of the Supreme Court, or any county judge or
surrogate hereafter elected in a county having a population ex-
ceeding one hundred and twenty thousand, practice as an attor-
ney or counselor in any Court of record of this State, or act as
referee. The legislature may impose a similar prohibition upon
county judges and surrogates in other counties. No one shall
be eligible to the office of judge of the Court of Appeals, justice

708 JuDiciAEY OF State of New York.

of the Supreme Court, or, except in the county of Hamilton, to
the office of county judge or surrogate, who is not an attorney
and counselor of this State.

Pvhlicaiion of statutes. — § 21. The legislature shall provide
for the speedy publication of all statutes, and shall regulate the
reporting of the decisions of the Courts ; but all laws and judicial
decisions shall be free for publication by any person.

Terms of office of present justices of the peace and local ju-
dicial officers. — ■ § 2i2. Justices of the peace and other local ju-
dicial officers provided for in sections seventeen and eighteen,
in office when this article takes effect, shall hold their offices until
the expiration of their respective terms.

Courts of Special Sessions. — § 23. Courts of Special Sessions
shall have such jurisdiction of offenses of the grade of misde-
meanors as may be prescribed by law.

AMENDED RULES OF PRACTICE IN FORECLOSURE

CASES.

The following form has been approved by the justices of the
Supreme Court.

To comply with the Amended Rules of Practice in foreclosure
cases the judgment should contain immediately following the
direction to sell and in substitution for the provisions now in use
the following provisions:

Under the direction of , Esq., who is hereby

appointed referee for that purpose; that said referee give public
notice of the time and place of such sale according to law and the
course and practice of this court; that the plaintiff or any other
party to this action may become the purchaser or purchasers on
such sale ; that said referee execute to the purchaser or purchasers
on such sale a deed of the premises sold; that such referee on
receiving the proceeds of sale forthwith pay therefrom the taxes,
assessments and water rents which are or may become liens on the
premises at the time of sale. That said referee then deposit the

balances of such proceeds of sale in * j. . . . and shall

thereafter make the following payments, and his checks drawn
for that purpose shall be paid by the said depository:

First. — The sum of $50 to the said referee for his fees herein.

Second. — Advertising expenses as shown on the bills presented
and certified by the said referee to be correct, and duplicate copies
of which shall be left with said depository.

* A bank or trust company authorized to receive on deposit court funds.

Amended Eules of Practice in Foeeclosube Cases.

Third. — Said referee shall also pay to the plaintiff the sum

of . . . .,. .,. ., dollars, adjudged to the plaintiff

for his costs and dishursements in this action, with interest
thereon from the date hereof, together with an additional allow-
ance of dollars hereby awarded to the plaintiff, in

addition to costs, with interest thereon from the date thereof; and

also dollars, the said amount so reported due as

aforesaid, together with the legal interest thereon from the date
of said report, or so much thereof as the purchase money of the
mortgaged premises will pay of the same.

Fourth. — If such referee intends to apply for a further allow-
ance for his fees, he may leave upon deposit such amount as will
cover such additional allowance, to await the further order of the
court thereon, after application duly made.

INDEX TO THE RULES.

[See index to the notes, post, page 735.]

PAGE.
ABSENTEE — Defendant in action for the forecloauxe of mortgage — ■

proof required on a reference on default 357

ACKNOWLEDGMEJST — Bonds and undertakings and other securities in

writing must be duly proved or acknowledged 56

Of consent to the payment of money out of court 91

ADDITIONAL ALLOWANCE. See Aixowance.

ADMISSION — Of attorneys 31

AFFIDAVIT — Form of, to be used in proceedings for the examination of

a witness within, where his, testimony is for use without, the State. 121
Of service of a summons by a person other than the sheriff — form of. 123
Must be folioed and fairly and legibly written or printed — waiver of

the objection 142

F»r order extending time — former extensions to be stated 159

Notice of application therefor 159

On application for ex parte order, what to state 161

On motion to change venue 318

What affidavit required to entitle a guardian ad litem to compensa-
tion 339

Used to procure an order for the examination of a party before trial

— what to contain 452

Filing of. See Filing.

AFFIDAVIT OF MERITS — Advice of counsel, how stated in 157

Form of 157

AGREED CASE — Submitted under section 1279 of the Code — an enu-
merated motion 289

AGREEMENT — Between parties or attorneys to be in writing 91

ALLOWANCE — Where to be applied for 305

To H. receiver for expenses paid, in reference to the employment of

counsel 451

AMENDMENTS — To a case. See Case.

ANNUITY — Rules for computing the value of 464, 465

ANNUITY TABLES 463, 465

ANNULMENT — ^ Of a marriage — a judgment by default or by consent

not allowable 268

APPEAL — Statement, as a substitute for voluminous documents read

upon non-enumerated motions 257

By virtue of sections 1346 and 1349 of the Code — an enumerated

motion . . 289

[709]

'710 Index to Rules.

[See index to the notes, post, page 735.]

APPEAL — ( Continued ) : page.

From judgment sustaining or overruling demurrers — an enumerated

motion 289

From final order and decree of Surrogate's Court — an enumerated

motion 289

From judgment or order granting or refusing a new trial in an

inferior court — an enumerated motion 289

Papers on, by whom furnished 296

Printed copies of cases and points to be furnished 296

Papers to he furnished on appeals from non- enumerated motions.... 296

Dismissal of the appeal for a failure to serve papers 296

Non-enumerated motions and appeals from orders, when heard in the

Appellate Division 305

Default, how taken 305

From orders and on non-enumerated motions — but one counsel on

each aide shall be heard, not more than thirty minutes 317

Hearing at the Appellate Division or at Special Term — not more
than one counsel shall be heard on each side, nor more than one

hour each 317

Motion to amend a justice's ireturn where the County Court cannot

act — ' when to be noticed 317

Appeals from City Court of New York and Municipal Courts, etc.,

rules as to 467

APPEARANCE — Notice of appearance, not alone sufficient in an action

to obtain a divorce or separation 417

APPELLATE DIVISION — Clerk of — filing certificate of law examiners

and of evidence of character with 32

Duty of the clerk of, to keep certain books 65

Papers in cases pending in, to be filed with the clerk of such division. 45

It may specify books to be kept in each department 64

Non-enumerated motions may be noticed for any motion day in the

term 146

Calendar — • notes of issue, when to be filed 291

Separate calendar for non-enumerated motions 291

Preferred cases 292

Rviles in each department 292

Judgment by default 292

Appeal, twice passed, dismissed 292

Papers on apjieal to, by whom furnished 296

Printed copies of ease and points to be furnished 296

Papers to be furnished on appeal from non-enumerated motions 296

Dismissal of the appeal for a failure to serve papers 299

In any department may make rules as to the excliange of briefs, etc. 304

Non-enumerated motions in, when heard 305

Default, how taken in 305

Index to Rules. 711

[See index to the notes, post, page 735.]

APPELLATE DIVISION— (Continued) : pace.

In the first department authorized to change the place at which

judicial sales shall be made 376

In each department, and the various courts of record, authorized to

make further rules 460

APPELLATE DIVISION RULES — First department 501

Second department 507

Third department 517

Fourth department 522

ARGUMENT — Of causes upon the calendar of the Trial Term or Special

Term, for the trial of equity cas,es 262

Notice of, at Special or Trial Term 267

Effect of a failure to appear 267

Length of notice 267

In Appellate Division or at Special Term — limitation as to the

number of, and time of hearing, counsel 317

ARREST — Order of — petition or affidavit on vphich it is granted to be

filed within ten days 54

Undertaking on, to be forthwith filed 54

Order to state grounds on which granted 94

A case in which the defendant is under arrest, preferred 262

ASSIGNMENT — Of mortgage to be filed or recorded before conveyance

in mortgage foreclosure actions — ^ expenses allowed in costs 395

ATTACHMENT — Petition or affidavit on which it is granted to be filed

within ten days 54

Undertaking on, to be forthwith filed 54

Against sheriff for not returning process or other paper 60

Order to state grounds on which granted 94

A case in which it has been issued is preferred 262

ATTORNEY. See Attoenets and Cottnselors.

ATTORNEY-GENERAL — Action for sequestration brought by, in be-
half of the People — motion for the appointment of a receiver —

where made 450

Effect of, on subsequent suits 450

Removal of the receiver 451

ATTORNEYS AND COUNSELORS — Admission of, to practice 31

Names and addresses of attorneys to be indorsed or subscribed on

papers aerved or filed 45

Cannot be sureties on any undertaking or bond required by law or

be bail in any civil or criminal case or proceeding 56

Change of attorneys — how made 79

Eixamination of witnesses and summing up — ^time allowed — taking

of testimony 168

Limitation as to the hearing of counsel at the Appellate Division or
»t Special Term 317

713 Index to Rules.

[See index to the notes, post, page 735.]

ATTORNEYS AND COUNSELORS — (Continued) : page.

No perBon shall be appointed sole referee, unless he be an attorney

of the court in good standing 459

Power of a receiver to employ counsel 461

AUCTION — Sale at auction of desperate debts and doubtful claims to

personal property, by the receiver of a debtor's estate 432

AUTHORITIES — Citation of, to be from official reports 304

BAIL BOND. See Undertaking.

BILL — Must be folioed and fairly and legibly written or printed — ■

waiver of the objection 142

Of exceptions. 'See Case and Exceptions.
BOND. 'See Undebtaking.

BOOKS — To be kept by the clerk of each Appellate Division 64

To be kept by the clerks of the courts, other than the Appellate

Division 64

To be kept in each department, may be specified by the Appellate

Ddvision 64

Discovery of — when compelled 95

Form of application for 119

Order, what to contain — it operates as a stay 120

To be produced under a subpoena to take testimony within, for use

■without, the State 121

BRIEF. See Points.

BUFFALO — SaJe of lands in the city of Buffalo under a judgment or

order — time and place of 376

CALENDAR — Practice at Trial Term or Special Term for the trial of

equity cases 262

Of the Appellate Division — note of issue, when to be filed 291

Date of issue 291

Separate calendar for non- enumerated motions 291

Preferred eases 292

Rules in each department 292

Judgment by default 292

Appeal, twice passed, to be dismissed 292

A cause may be struck from the calendar for a neglect to furnish

papers on an enumerated motion 296

CARLISLE TABLE OF MORTALITY 465

CASE — Must be folioed and fairly and legibly written or printed —

waiver of the objection 142

Where specific questions of fact have been tried by a jury or a,

referee, and a new trial is applied for — ^settlement of 18S

Making and settlement of amendments thereto 1*4

Reserved for argument and special verdicts — settlement of — parties

may agree on the facts proven ■'"4

Omitting to make — effect of *""

Index to Rules. 713

[See index to the notes, post, page 735.]

CASE— (Continued) : page.

To be in narrative form — resettlement of, if it is not — exhibits not

to be printed at length 257

An enumerated motion 289

Papers to be furnished on enumerated motions 296

Neglect to furnish papers 29S

The cause may be struck from the calendar 296

Papers, by whom furnished 296

How printed and indexed 304

Number of copies to be delivered to the clerk of the Appellate

Division 304

CASE AND EXCEPTIONS — Where specific questions of fact have been
tried by a jury or a referee, and new trial is applied for —

settlement of 185

Motions therefor to be made at Special Term 185

Making and settlement of — amendments thereto 194

Contents thereof — narrative form 257

Resettlement thereof, if it does not conform to Rule 34 258

Exhibits not to be printed at length 258

Papers to be furnished on enumerated motions 296

Neglect to furnish papers 296

Cause may be struck from calendar 296

Papers, by whom furnished 296

CERTIFICATE — Of the examiners for the admission of attorneys 31

Of the clerk on papers, used on a motion, to be filed in another

coimty 45

CHANCERY PRACTICE — Applicable to cases not covered by the Gen-
eral Rules of Practice i 461

CHANGE — Of attorneys, how made 79

CHARACTER — Filing evidence of the character of applicants for admis-
sion as attorneys 31

CHILDREN — Questioning legitimacy of, in an action for divorce 431

CITATION — Of authorities, to be from oflacial reports 304

CITY COURT — Of the city of New York — rules of 547

CLAIMANT — For surplus moneys in mortgage foreclosure actions —

notice of claim — notice of hearing 396

CLAIMS — Court of — rules of 593

Sale of doubtful claims by a receiver. See Receives.
CLERK — Of the Appellate Division and of other courts — books to be

kept by 64

Number of cases and points to be delivered to him 304

Duty of, to preparing a calendar for the Appellate Division. . . . 292
Filing certificates of bar examiners and of evidence of character

with 31

Filing or recording in his office, of a mortgage and assignments be-
fore conveyance in mortgage foreclosure actions 395

714 Index to Rules.

[See index to the notes, post, page 735.]
CLERK — ( Continued ) : page.
Papers in coiu-ts of record, other than the Supreme Court and Surro-
gate's Court, to be filed with the clerk of the court 45

Copy of pleadings or testimony in divorce suits not to be furnished. 431
See County Clehk.
COHABITATION — Proof as to, in actions for divorce. See Divoecb.
COMMISSION — Issued from a court without, to take the deposition of

a witness within, the State 121

Time of service and settlement of interrogatories and cross-interrog-
atories to be annexed thereto 144

Of lunacy — fees on executing it 415

Committee may pay costs, when 415

Special order of the court, when necessary 415

COMMITTEE — Of a lunatic — fees on executing a commission — when

he may pay costs 415

Special order of the court, when necessary 415

COMPENSATION — Of a guardian ad litem — what affidavit required to

entitle him to it 339

For executing a commission of lunacy 415

Committee may pay costs, when 415

Special order of the court, when necessary 415

COMPLAINT — For divorce. See Pleading.

CONSENT — Of the party required to a change of attorneys 79

Between parties or attorneys to be in writing 91

To the payment of money out of court — to be acknowledged 94

CONTEMPT — Of court — when a witness will be punished for a failure
to testify under a commission executed within, for use without,

the State 122

CONTESTED MOTIONS — Where heard. See Motion.

COPIES — Letter press or typewritten copies to be written or printed in

black characters 142

Otherwise not to be filed or entered by the clerk 142

COBPORATION — Sequestration of the property of — motion for the

appointment of a receiver — where made 450

Effect of, on subsequent suits 450

Removal of the receiver 450

COSTS — Additional allowance, where to be applied for 305

Of proceedings for the sale, mortgage or lease of the real estate of

infants, what amount allowed 355

Expenses of filing or recording mortgage and assignments before

conveyance in mortgage foreclosure actions, allowed in costs 395

Of executing a commission of lunacy 415

When committee may pay 415

When a, special order of the com-t is necessary 415

When they may be allowed to a receiver of a, debtor's estate 406

Index to Rules. 715

[See index to the notes, post, page 735.]

COSTS — (Continued) : page.

Of a receiver — security for the payment of, in an action brought by

him 421

Allowed by the court to the guardian ad litem or recovered by the

infant 339, 340

COUNSEL. See Attorneys and Coukseloes.

COUNSELOR. See Attorneys and Counselors.

COUNTY CLERK — Papers in the Supreme Court to be filed in the office

of 45

See Clerk.
COUNTY COURT — Motion to amend a justice's return on appeal where

the County Court cannot act — when to be noticed 317

Order for payment of money out of court — what to specify 411

Account with a trust company 411

Statement of, to be made annually 411

Draft upon — what to be stated in — to be countersigned by

justice 411

COURT OF CLAIMS — Rules of 593

COURT OF SPECIAL SESSIONS OF CITY OF NEW YORK — Rules of. 555
COURTS — Of record — papers in courts of record, other than the Su-
preme Court and the Surrogate's Court, to be filed in the office

of the clerk of the court 45

What book shall be kept by the clerks of 64

Payment of money out of court — consent thereto to be acknowl-

ledged — applicant to be identified 94

Copy pleadings to be furnished for the use of the court to designate
the parts admitted or controverted by the succeeding pleadings. . . 142

Order for payment of money out of court — what to specify 411

Account with a trust company 411

Statement of account to be made annually 411

Draft upon — wJiat to be stated in — to be countersigned by

justice 411

Courts of record and the Appellate Division in each department

authorized to make further rules 460

CROSS-INTERROGATORIES — In what time they must be served under

a commission 144

CURTESY — Tenant by — payment to, of gross siun in lieu of life estate

— amount, how ascertained 413

DATE — Of issue, where extension of time to plead is given 159

DEBTOR — A receiver of a debtor's estate may execute a lease not to

exceed one year 432

Powers and duties of 432

To be allowed costs 432

When he may sell doubtful claims at auction 432

Security for the payment of the costs of an action brought by a
receiver in supplementary procgedings 449

716 Index to Rules.

[See index to the notes, post, page 735.]

PAGE.

DEFAULT — Judgment on failure to answer — where it may be applied

for 163

In first district 163

In Bervice of a case or of amendments thereto or of notice of settle-
ment thereof . 257

Judgment of reversal by, not allowed at the Appellate Division 292

Effect of a failure to file and serve the papers on appeal to the

Appellate Division 296

Failure to answer on mortgage foreclosure — reference — what proof

must be made — judgment 357

In an action to obtain a divorce or separation — reference on 417

Who may be referee 417

Proof of service of summons and complaint 417

Notice of appearance, etc., not sufficient 417

Plaintiff to be examined on oath 417

Failure of defendant to answer 417

Judgment by, in an action to annul a marriage — when granted —

proof required 430

Judgment declaring a marriage void or granting a divorce, etc., not

to be by default 431

No judgment to be entered except by order of the court 431

Proof taken as to the question of legitimacy, in an action for divorce. 431
DEPARTMENTS — Committee on character and fitness to be named by

each, relative to the admission of attorneys 31

DEPOSITION — Of a witness to be taken within, for use without, the

State — proceedings to punish for contempt 121

Must be folioed and fairly and legibly written or printed — waiver

of the objection 142

Of a party before trial — affidavit on application for — what to state. 424

DISCOVERY — Of books, papers and documents — when compelled 95

Moving papers to state facts and be verified 119

Should be shown to be material 120

Order, what to contain — operates as a stay of proceedings 121

DISMISSAL — Of complaint, in case of a neglect to bring to trial an

issue of fact 262

Of appeal, for a failure to file and serve papers 298

DIVORCE — Form of proof of service of the summons in an action for. 123

A judgment by default or by consent, not allowable 267

Reference on default in an action to obtain — who may be referee. 417

Proof of service of summons and complaint 417

Notice of appearance, etc., not sufficient 417

Complaint for divorce — averments in 417

Plaintiff to be examined on oath 417

Failure of defendant to answer 417

Index to Rules. Tl7

[See index to the notes, post, page 735.]
DIVORCE — ( Continued ) : page.

Answer in an action for — trial of the action 430

Judgment by default in an action to annul a marriage 430

When granted — proof required 430

Judgment declaring marriage void or granting a divorce, etc., not to

be by default 431

Copy of pleadings or testimony not to be furnished 431

No judgment to be entered, except by order of the court 431

Questioning legitimacy of children 431

DOCKET — Of judgments in the offices of the clerks of the courts during

office houra 65

DOCUMENTS — Discovery of — when compelled 95

Form of application for 119

Order for, what to contain — it operates as a stay 120

To be produced imder a subpoena to take testimony within, for use

without, the State 122

Settlement of a statement of voluminous documents used on non-
enumerated motions 257

DOUBTFUL CLAIMS — Sale of, at auction by a receiver. See KECEaVEB.
DRAFT — For payment of money out of court — what to be stated in —

to be countersigned by justice 411

DRUNKARD — Sale, mortgage or lease of a drunkard's real estate —

petition for, what to state — previous application 347

Contents of referee's report thereon — proof of value 352

Payment of fees on executing a commission. Se« Lunacy.

ENDORSEMENT — Of papers by the attorneys 45

ENTRY — Of judgments in the offices of the clerks of the courts during

office hours 65

ENUMERATED MOTIONS. See Motion.

EQUITY TERM — Calendar practice at 262

EVIDENCE — Proceedings to take the testimony of a witness within,

for use without, the State 121

How taken on a. trial 168

Testimony — taken before referee — when to be signed 173

Required on application for a judgment by default in an action to

annul a marriage 430

Oopy of pleadings or testimony in divorce suits not to be furnished. . 431
Where the legitimacy of children is questioned in an action for

divorce 431

Examination of a party before trial — 'the moving papers, what to

state 452

EX PARTE ORDER. See Obdee.

EXAMINATION — For admission of attorneys and counselors 31

Of a party before trial — affidavits on application for, what to state . 452
EXAMINERS — State Board of — rules of 610

718 Index to Kules.

[See index to the notes, post, page 735.]

PAGE.

EXCEPTIONS — Must be folioed and fairly and legibly written or

printed — waiver of the objection 142

To a referee's report to be filed within eight days 173

An enumerated motion 280

See Case and Exceptions.
EXECUTION — Appointment of a receiver in proceedings supplementary

to. "See Receivee.
EXHIBITS — In a case or bill of exceptions not to be printed at length. . 257
EXTENSION — Of time — form of affidavit for — former extension to be

stated — notice of application 159

See Oedeb; Time.
EXTRA ALLOWANCE. See Aixowanoe.
FEES. See Compensation.
FEIGNED ISSUES — Application for a new trial of, to be made on a

ease or exceptions or the minutes 185

Settlement of, where the trial of issues of fact is not provided for

by the Code 185

FILING- — 'With the Appellate Division of certificates of the law ex-
aminers and of character 31

Of papers, when with the clerk of the Supreme Court 45

When in the office of the surrogate 45

When with the clerks of other courts of record 45

Where the place of trial is changed 45

With the clerk, of all papers read or used on a motion 49

An undertaking and affidavit, on which an injunction, attachment or

order of arrest has been granted, must be filed 53

Pleadings and other proceedings, if not legibly written or printed and

folioed, not to be filed by the clerk 142

Affidavit of merits, once filed sufficient 157

Of the report of a referee, in references other than for the trial of

issues 173

Of a case or a case and exceptions within ten days after settlement. 255
Of mortgage and assignments, before conveyance in mortgage fore-
closure actions — ■ expense allowed in costs 395

FIRST DEPARTMENT — Rules of the Appellate Division of 501

Surrogate's Court in the first department — rules of 528

City Court of New York — • rules of 547

FIRST JUDICIAL DISTRICT — Motion for an order or judgment —

where heard 163

Motions therein — where heard 268

FOLIO — Pleadings, etc., must be foliOed — waiver of the objection 142

FORECLOSURE — Stay of sale in — notice of application therefor

required 40*

Of mortgage. 'See Moetqagb Fobeolosube.

Index to Rules. 719

[See index to the notes, post, page 735.]

PAGE.

FOURTH DEPARTMENT — Rules of the Appellate Division of 521

GENERAL GUARDIAN. 'See Guardian.

GENERAL RULES OF PRACTICE. See Rules.

GUARDIAN — ' Appointment of a general guardian — contents of petition

for 341

To give security before receiving the proceeds of sale of property of

an infant 341

Duty of the court upon the presentation of a petition for the ap-
pointment of a general guardian • 345

Investment of the funds of an infant by a general guardian 345

GUARDIAN AD LITEM — Who to be — qualifications of 333

Duties of — what affidavit required to entitle a guardian ad litem to

compensation 339

To give security before receiving money or property of the infant . . 340
Entitled to costs and expenses, - allowed by the court or recovered by

the infant 340

Security required of a special guardian appointed to sell an infant's

real estate 353

HABITUAL DRUNKARD. "See Dkunkakd.

HEARING — Where exceptions are iiled to the report of a referee, in

references other than of the issues 173

Of counsel at the Appellate Division or Special Term limited 317

HUSBAND AND WIFE. See Divohce; Judgment.

IDIOT — ■ Sale, mortgage or lease of an idiot's real estate — petition for,

what to state — previous application . . . . , 347

Contents of referee's report thereon — proof of value 352

Payment of fees on executing a, commission. See Lunacy.
ILLEGITIMACY. 'See Legitimacy.
INCOMPETENT — ■ Sale, mortgage or lease of an incompetent's real

estate — petition for, what to state — previous application 347

Contents of referee's report thereon ■ — ■ proof of value 352

Security required of special guardian 353

Proceeds of sale of real estate of, must be brought into court

— • costs 355

When to be paid to general guardian — security required — con-
tents of petition therefor 356

Payment of fees on executing a commission. See Lunacy.
INDEFINITE MATTER — In pleading. 'See Pleading.

INDEX — Of case — regulations as to 304

INDORSEMENT. 'See Endobsement.

INFANT — Guardian ad litem of — who to be — qualifications of 333

Duties of a guardian ad litem — what affidavit required to en-
title him to compensation 339

'i'20 Index to Rules.

[See index to the notes, post, page 735.]
INFANTS — ( Continued ) : page.

Appointment of a general guardian for — contents of petition for 341

Duty of the court upon the presentation of a petition for tlie

appointment of a general guardian 345

Investment of the funds of an infant by a general guardian. . . . 345

Security to be given by a general guardian of an infant 346

Sale, mortgage or lease of infant's real estate 347

Contents of referee's report thereon — proof of value 352

Moneys arising from sale of real estate of — when to be paid to
general guardian — ■ Siecurity required — contents of petition

therefor 356

Guardian ad Utem of, to give security before receiving infant's

money or property 340

Security required of special guardian on sale of real estate of . . . 353
Proceeds of sale of real estate of, must be brought into court —

costs 355

Where several infants are interested in the same premises as
tenants in common, all must join in proceedings for its sale . . 355
Infant defendant in action for the foreclosure of mortgage — ■ proof

required on a reference on default 357

Infant parties to action for partition — the petition must state

whether they own any other lands in common 404

INJUNCTION — Petition or affidavit on which it is granted to be filed

within ten days 53

Undertaking on, to be forthwith filed 53

Order to state grounds on which granted 94

INSOLVENT DEBTOR. See Debtor.

INSPECTION — Of books, documents, etc., when compelled 95

Should be shown to be material 119

Order for, what to contain 120

It operates as a stay 121

INTERLOCUTORY REFERENCE. See Refebence.
INTERKOGATOHIES — Time of service and settlement of the same

under a commission 144

INVESTMENT — 0* the funds of an infant by a general guardian 346

IRREGULARITY — Where papers certified to the proper county are not

entered there within ten days 50

That a bond or imdertaking is not forthwith filed 53

Where an application for an ex parte order fails, to state previous

application 161

Where a judgment or order is granted in violation of Rule 26 163

To be specified in the notice or order to show cause 267

IRRELEVANT MATTER — Motion to strike out — within what time to
be made — time to make such motion not to be extended except
upon notice 148

Inbex to Eules. T21

[See index to the notes, post, page 735.]

PAGE.

ISSUE — Date of, where extension of time to plead is given 159

Note of, for the Appellate Division calendar, v?hen to be filed 291

Date of issue 291

ISSUE OF FACT — Neglect to bring to trial 262

ISSUE OF LAW — An enumerated motion 289

JUDGMENT — When to be entered and docketed in county clerk's office. 65
Must be folioed and fairlyl and legibly written or printed — ^waiver

of the objection 142

For failure to answer — where it may be applied for Ifi3

In first district 163

Directing the payment of money or affecting the title to property,

if founded on petition, may be enrolled and docketed 166

Orders for the payment of money may be docketed as 166

Of reversal by default, not allowed at the Appellate Division 292

On failure to answer on mortgage foreclosure — what must be shown

on application therefor 357

For sale of mortgaged premises — contents of 374

By default in an action to annual a marriage — when granted — proof

required 430

Declaring marriage void or granting a divorce, etc., not to be by

default 431

Copy — • of pleadings or testimony not to be furnished 431

No judgment to be entered in a matrimonial action, except by order

of the court 431

JUDICIAL SALE. See Sale.

JUSTICE'S RETURN — On appeal — motion to amend, where the County

Court cannot act — when to be noticed 317

JUSTIFICATION — Of sureties 56

Attorneys and counselors cannot be sureties 56

Of sureties on the bond of a special guardian in proceedings for the

sale of real estate of infants 353

KINGS COUNTY — Sale of lands in the county of Kings under a judg-
ment or order — time and place of 376

Motion for an order or judgment — where heard 163

Surrogate's Court in — Rules of , 543

LACHES — Neglect to bring to trial an issue of fact 262

LAW EXAMINERS — State board of — rules of 610

LEASE — Of real estate of infant's, lunatics, etc., what to state —

previous application 347

Contents of referee's report thereon — proof of value 352

Of the real estate of infants — security required of special guardian. 353

Proceeds thereof must be brought into court — costs 355

Moneys arising from — when to be paid to general guardian —

security required — contents of petition therefor 356

A receiver of a debtor's estate may execute a lease not to exceed one
year 432

T22i Index to Rules.

[See index to the notes, post, page 735.]

pAei.

LEGITIMACY — Of children — questioned in an action for divorce 431

LETTER-PRESS COPIES — To be written or printed in black characters

— otherwise not to be filed or entered by the clerk 142

LIFE ESTATE — Gross sum in payment of — how ascertained 413

Rules for computing the value of 464, 465

LIFE TABLES 463, 466

LIS PENDENS — Filing of, must be shown on application for judgment

on mortgage foreclosure 358

LUNATIC — Fees on issuing a commission of lunacy 415

Committee may pay costs, when 415

Special order of the court, when necessary 418

Sale, mortgage or lease of a lunatic's real estate — petition for, what

to state — previous application 347

Contents of referee's report as to sale of real estate of — proof

of value 352

Annulment of marriage with. See Divoece.
MARRIAGE — Annulment of — a judgment by default or by consent not

allowable 267

See DIVORCE; Sepaeation.

MERITS — Affidavit of 157

MONEY — Payment of, out of court — consent thereto to be acknowl-
edged 94

Applicant to be identified 94

Payment of — order or judgment directing, may be enrolled and

docketed 166

Payment of, out of court — order what to specify 411

Account with a trust company 411

Statement of account to be made annually 411

Draft — what to be stated in — to be countersigned by justice. 411
In court — investment of — payment of gross sum in lieu of life

estate — amount — how ascertained 413

MORTGAGE — On real property given as security — proof of the value

required 56

It may be given as security by the general guardian of an

infant 34S

Of real estate of infants, lunatics, etc., petition for, what to state —

previous application 347

Contents of referee's report thereon — proof of value 352

Of the real estate of infants — security required of special guardian. 353

Proceeds thereof must be brought into court — costs 35S

Moneys arising from — when to be paid to general guardian —

security required — contents of petition therefor 357

MORTGAGE FORECLOSURE — Failure to answer — reference — what

proof must be made — judgment 357

Inbex to Ettlbs. 723

[See index to the notes, post, page 735.]

MORTGAGE FORECLOSURE — (Continued) : pag».

Sale of lands in the counties of New York and Kings and the city of

Buffalo under a judgment or order — time and place of 376

Judgment for sale of mortgaged premises — contents of 374

Surplus money arising on — to whom to be paid 375

Mortgage and assignments to be filed or recorded before conveyance

— expense allowed in costs 395

Application for surplus moneys — notice thereof — reference —

searches — unsatisfied liens 398

Referee to be selected by the court 396

MOTION — Papers used on, to be filed in the proper county within ten

days 49

Papers used on, to be certified to the proper county 49

Recital in the order of all papers used or read 49

For an attachment to compel a return by a sheriflf 52

For the payment of money out of court 94

Consent to be acknowledged 94

Applicant to be identified 94

For arrest, injunction or attachment 94

The grounds therefor must be stated in the order 94

For discovery — when granted 96

Moving papers, what to state and how verified 119

Order, what to contain — it operates as a stay. 120

To compel a witness to testify under a commission for use without

the State — what the petition therefor must state 121

Not to be heard by the court where the pleadings and other pro-
ceedings are not fairly and legibly written 142

Papers used must be folioed and fairly and legibly written or

printed 142

Waiver of the objection 142

Non-enumerated motion, except at Appellate Division, must be
noticed for the first day of the term, except suflScient cause

be shown 146

In the Appellate Division it may be noticed for any motipn day. 146
To strike out irrelevant matter or to correct a pleading as indefinite,
etc. — it must be noticed before answering and within twenty days

— time extended only on notice 148

Service and filing of affidavit of merits may be shown by affidavit. 157

Ex parte — statement as to previous application 161

In first judicial district and Kings county for an order or judgment

— where heard 168

Order directing the payment of monej' or affecting the title to real

property may be enrolled and docketed 166

Order granted on petition must recite the names and descriptions of
the petitioners and its date 165

7'24 Index to Eules.

[See index to the notes, post, page 735.]

MOTION — (Continued) : page.

For an order granting or refusing a new trial, except on exceptions

taken on the trial 184

The grounds thereof to be stated in the order 184

Notice of motion for a jury trial to be made within ten days after

isaue joined 184

Papers to be served with such notice of motion 184

For extension of time to serve a case or amendments thereto, to be

on notice 193

Statement of contents of voluminous documents used upon non-
enumerated motions 258

For irregularity — the irregularity to be specified 274

; In the first j udicial district — where heard 267

Notice for, at Special Term or Trial Term 267

Effect of a failure to appear 267

Length of time of notice 267

Enumerated motions, what are 289

Non-enumerated motions, what are 289

Contested motions — when not heard at Trial Term 289

Papers to be furnished on enumerated motions at Special Term. . . . 296

Neglect to furnish papers 296

A cause may be struck from the calendar 296

Papers, by whom furnished 296

Points, to contain a statement of facts 296

Enumerated — ^papers to be furnished on appeal to the Appellate

Division 297

Non-enumerated — papers to be furnished on appeal to the Appellate

Division 297

Non-enumerated motions and appeals from orders, when heard 305

Default, how taken 305

To amend a justice's return on appeal where the County Court can-
not act — when to be noticed 317

To change venue — stay of proceedings on 318

AflSdavits on 318

For the payment of money out of court 386

For the appointment of a receiver on sequestration of the property

of a corporation — where made 450

Effect of, on subsequent suits 450

Removal of the receiver 450

For the examination of a party before trial — the affidavits on such

motion, what to state 452

gee OEDEaa.

MUNICIPAL COURT OF THE CITY OF NEW YORK — Rules of 658

NARRATIVE FORM. See Case; Case and Exceptions.

NEW TRIAL — Application for, where specific questions of fact have been

tried by a jiu'y or a referee 184

■ ■■ Index to Eules. '<'25

[See index to the notes, post, page 735.]
NEW TRIAL— (Continued): p-^^ge.
Grounds of an order granting or refusing a new trial, except on ex-
ceptions taken on the trial, to be specified 18*

Trial — settlement of issues 184

Notice — ■ of a motion for a trial by jury 184

Pa pers — to be served with such notice 184

Settlement — of the issues, or reference to settle them 184

Form, of settlement of the issues 184

NEW YORK CITY — Sale of lands in the county of New York under a

judgment or order — time and place of 376

Order for payment of money out of court. See Payment.

NEW YORK CITY COURT — Rules of 547

NON-ENUMERATED MOTION. See Motion.

NONSUIT — Submitting to, before a referee 173

NORTHAMPTON TABLE OF MORTALITY 463

NOTICE — To sheriff to return process or other paper 52

Of non-enumerated motion — it must, except in Appellate Division,
be for the first day of the term, unless sufficient cause be shown. . 14ft.

In the Appellate Division for any motion day 146'

Must be given of applications for extensions of time to serve a case

or exceptions 19?

Of settlement of a statement of voluminous documents used on non-
enumerated motions 258

Of argument, and of motions at Special Term or Trial Terms 267

Effect of a failure to appear 267

Length of time of notice 267

Of motion for irregularity — the irregularity must be specified in the

notice 267

Of motion in the first judicial district, to be for what term of the

court 267

Of motion to amend a justice's return on appeal where the County

Court cannot act — when to be noticed 317

Of claim to surplus moneys — filing of 399

Of hearing on applications for surplus moneys, to any person
having or appearing to have an unsatisfied lien on the moneys. 396

Of stay of sale, required in actions for partition or foreclosure 408

Of pendency of action. See Lis Pendens.
OFFICE ADDRESS — Or place of business to be indorsed on papers .... 45
OFFICER — Of any court — copy of pleadings or testimony in divorce

suits not to be furnished by 431

OFFICIAL REPORTS — Citations in briefs, to be from 304

OFFICIAL SEARCH. See Search.

OPINION — Of the court below to be added to a case on appeal from

enumerated motions 297

Also on appeals from non-enumerated motions 297

7i26 Index to Kules.

[See index to the notes, post, page 735.]

PAGE.

ORDER — Entry of — > all papers used or read to be specified therein .... 49

Clerk not to enter an order unless papers are filed 49

To be entered in the proper county within ten days 50

To show cause why an attachment should not issue to compel a

sheriff to make return 60

Change of attorney must be made by 79

Mrecting payment of money out of court 411

Consents thereto must be acknowledged 94

The applicant must be identified 94

Agreements between parties or attorneys to be by order or in writing. 91
Of arrest, injunction or attachment to state the grounds thereof .... 94
For discovery — ^what to contain — it operates as a stay of pro-
ceedings 120

To compel a witness to testify under a, commission for use without

the State — what the petition therefor must state 121

Must be folioed and fairly and legibly written or printed 142

Waiver of the objection 142

Extending time — ■ affidavit for 159

Former extensions to be stated 159

Notice of application therefor 159

Ea> pa/rte — statement as to previous application 161

In the first judicial district and Kings county — where applied for.. 163

For the payment of money may be docketed as a judgment 166

Granted on petition, or relating thereto, must recite the names and

descriptions of the petitioners and its date 165

Affecting the title to real property, may be enrolled and docketed as

a judgment 166

Granting or refusing a new trial, except on exceptions taken on the

trial 184

Grounds thereof to be specified therein 185

Motion for a jury trial to be made within ten days after issue joined . 185

Papers to be served with such notice of motion 185

Extending time — to serve case or amendments to be on notice 193

To show cause as a substitute for a notice of motion at Special or

Trial Term — what must be stated in moving papers 267

Where returnable, except in the first judicial district 267

When, except in the first judicial district, it does not stay proceedings 267

To show cause in the first judicial district — where returnable 267

Appeal from, in the Appellate Division, when heard 305

Default, how taken 305

To stay proceedings with a view to change of venue 318

Affidavits on motion to change venue 318

For the payment of any money arising from the sale of the real

estate of infants to general guardian — on what petition to be made 356

For payment of money out of court — what to specify 411

Index to Rules. 727

[See index to the notes, post, page 735.]

ORDER — (Continued) : PAGE.

Of the court — when necessary to authorize the payment of the fees

on executing a commission of lunacy 415

Of arrest. See Areest.
See Motion.

PAPERS — Discovery of — when compelled 95

Form of application for 119

Order for, what to contain — ^it operates as a stay 121

To be produced under a subpoena to take testimony within, for use

without, the State 121

Must be folioed and fairly and legibly written or printed — waiver of

the objection 142

To be furnished on enumerated motions 296

On appeal, by whom furnished 297

Where filed 45

PARTITION — Te embrace all lands held in common 404

Statement required where infants are interested 404

References as to title 407

Stay of sale — notice of application therefor required 408

PARTY — ■ Name and address of the party, if he appears in person, to be

indorsed and subscribed on papers served or filed 45

Consent of, required to a change of attorney 79

Compelled to make discovery of books, documents, etc 95

Examination of, before trial — moving papers, what to state 452

Plaintiflf in action for divorce — examination of, etc. See Divorce.
PAYMENT — Of money — an order or judgment directing, may be en-
rolled and docketed 166

Of money out of court — order, what to specify — account with a

trust company 411

Statement of account to be made annually 41]

Draft — what to be stated in — to be countersigned by justice ... 41 1

■Consent thereto to be acknowledged 94

Applicant to be identified 94

Of gross sum in lieu of life estate — amount, how ascertained 413

PETITION — To compel a witness to testify under a commission for use

without the State — ■ what it must state 121

Order granted on — to recite the names and descriptions of the peti-
tioners and its date 165

Eficitals in — orders granted thereon 165

For the appointment of a general guardian — contents of 341, 346

For the sale of real estate of infants, lunatics, etc., what to state —

previous application 347

For the payment of moneys arising from the sale of real estate of in-
fants — contents thereof 356

PLACE — Of trial. See Venue.

T28 Index to Rules.

[See index to the notes, post, page 735.]

FAeE.

PLEADINGS — Must be folioed and be fairly and legibly written or

printed 142

If not, the clerk is not to iile the same 142

To be furnished to the court, to have designated thereon the part*

admitted or controverted by the succeeding pleadings 142

A motion to strike out irrelevant matter, or to make a pleading
definite, must be noticed before answering and within twenty days

— time extended only on notice 148

Complaint for divorce — averments in 391

Answer in an action for divorce — trial thereof 430

Allegations of a complaint in an action for divorce, where the legiti-
macy of children is questioned 431

Copy of pleadings or testimony in divorce suits not to be furnished. . 431

POINTS — To contain a statement of facts 296

How printed 304

Citations to be from official reports 304

Number of copies to be delivered to the clerk of the Appellate M-

vision 304

Rules in relation to the exchange of, may be made by the Appellate

Division in any department 303

PRACTICE — In cases not covered by the General Rules of Practice 461

PREFEEENCE — A case where an attachment has issued or the defendant

is under arrest is preferred 262

Cases entitled to, are to be placed separately on the calendar of the

Appellate Division 291

PREVIOUS APPLICATION — To be stated in moving papers, when an

ex parte application is made for an order 161

When an application is made for an order extending time 161

PRINTING — ■ Of cases and points — regulations as to 304

PROCESS — ^Service of a summons by a person other than the sheriff —

proof of, what to state 123

Proof of service of summons and complaint in an action to obtain a

divorce or separation 417

PROPERTY. See Real Pbopertt.

REAL PROPERTY — Petition for the sale of the real estate of infants,

lunatics, etc., what to state — previous application 347

iSecurity required of a. special guardian in proceedings for the sale of

the real estate of infants 327

Order or judgment aflfecting, may be enrolled or docketed 166

Where several infanta are interested in the same premises as tenants

in common all must join in proceedings for its sale 356

Judgment for sale of mortgaged premises — contents of — surplus

moneys arising on 374

Partition of, to embrace all lands held in common 404

Statement required where infants are interested 404

Index to Rules. Y29

[See index to the notes, post, page 735.]
REAL PROPERTY— (Continued): page.

Foreclosure of mortgage on. See Mortgage roEECLOsuEB.
Sale of, under decree, order or judgment of any court. See Sale.

RECEIVER — Of a debtor's estate — powers and duties of 432

To be allowed costs 432

When he may sell doubtful claims at auction 432

Appointed in proceedings supplementary to execution — when he may

sue — security for costs 449

Power of, to employ counsel 451

RECITAL — In order of all papers used or read on a motion 42

In an order of arrest, injunction or attachment to state the grounds

thereof 94

In orders granted on petitions 165

RECORD — Courts of. See Courts of Record.

RECORDING — Of mortgage and assignments before conveyance in mort-
gage foreclosure actions — expense allowed in costs 395

REDUNDANT MATTER. See Irrelevant Matter.

REFERENCE — Contents of referee's report as to the sale of real estate

of infants, lunatics, etc. — proof of value 352

In mortgage foreclosure cases referee to be selected by the court .... 374
On application for surplus moneys referee to be selected by the court. 396

Who may be appointed a, sole referee 450

Not the partner, clerk or one connected in business with the attor-
ney or counsel in the case 450

On application for judgment by default — ^ where executed 163

Stibmitting to nonsuit before a referee 173

Testimony to be signed 173

Reference of issues 173

When the report becomes absolute 173

Exceptions thereto to be filed within eight days 173

Application for a new trial, where specific questions of fact have been

tried by a referee 184

On failure to answer on mortgage foreclosure — what proof must be

made 357

As to title in actions for partition 407

The referee is to be selected by the court 407

On default in an action to obtain a, separation or divorce 417

Who may be referee 417

RENTS AND PROFITS — Of real estate belonging to a, debtor — re-
ceiver of the debtor may enforce payment of 432

REPORT — Must be folioed and fairly and legibly written or printed —

waiver of the objection 142

Of referee. See Reference.
RESETTLEMENT — Of a case or exceptions which does not conform to

Rule 34 257

RETURN — Of sheriff, how compeaea 60

730 Index to Rules.

[See index to the notes, post, page 735.]

PAGE.

RULES — Of the several departments as to filing papers relative to the

admission of attorneys 31

Appellate Division of each department shall adopt rules regulating

the hearing of causes and the calendar practice 292

As to the exchange of briefs, etc 303

Assigning days for the hearing of non-enumerated motions and

appeals from orders 305

Regulating the hearing of counsel 317

The various courts of record are authorized to make further rules .... 460

Practice in cases not covered by the General Rules of Practice 461

For computing the value of a, life estate or annuity 464, 465

Regulating appeals from City Ctourt of New York and Municipal

Courts 407

Regulating trial terms in first judicial district 472

Regulating special terms in first judicial district 480

Regulating procedure upon application for naturalization in first

judicial district 493

Regulating attendance, etc., of clerks, etc., in first district 494

Of the Appellate Division, first department 501

Of cases arising under the Election Law 506

Second department 507

Calendar practice in 510

Regulating admission of attorneys in 514

Regulating naturalization in 514

Appeals from M^micipal Court in 514

Relating to form of bond of applicants for license to prac-
tice as official examiners of title 515

Third department 517

Fovurth department 521

Calendar rules in 522

Of the Court of Claims 483

Of the New York Surrogate's Court 528

Of the Kings County Supreme Court — calendar niles of Trial Term. 538

Equity calendar 540

Of the Surrogate's Court of Kings county 543

Of the City Coiu-t of New York 547

Of the Court of Special Sessions of the City of New York 555

Of the State Board of Law E.Kamiuers 610

Of the Municipal Court of the City of New York 558

Regulating duties of clerks, etc., in 566

Of the Court of General Sessions of the City of New York 569

Of the Magistrates' Courts, city of New York, First Division 576

Of the Magistrates' Courts, city of New York, Second Division 586

Of the Board of City Magistrates, city of New York, First Division. 582
Of the Board of City Magistrates, city of New York, Second Division 589

Index to Rules. 731

[See index to the notes, post, page 735.]

PAGE.

SALE — -Of real estate of infants, lunatics, etc., petition for, what to

state — previous application 347

Contents of referee's report — proof of value 352

Security required of special guardian 353

Proceeds thereof must be brought into court — costs 355

Moneys arising from — -when to be paid to general guardian —

security required — • contents of petition therefor 356

Of mortgaged premises under judgment — form of the judgment... 374

Surplus moneys arising on, to whom to be paid 374

Voucher therefor to be produced on confirmation of report of sale 374
Under judgment or order in the counties of New York and Kings and

in the city of Buffalo 376

Between what hours to take place 376

Notice to be given 376

Place of sale in the county of New York 376

The place of sale may be changed by the Appellate Division in

the first department 376

Place of sale in the city of Buffalo 376

Place of sale may be otherwise ordered by the court 376

Place of sale in the city of Buffalo subject to such regulations as
the justices of the Supreme Court of the eighth district shall

establish 376

Stay of sale, in actions of partition or foreclosure — notice required . 408
Of desperate debts and doubtful claims to personal property by the

receiver of a debtor's estate 432

SCANDALOUS MATTER. See Irrelevant Matter.

SEABCH — For conveyances or incumbrances on applications for surplus

moneys 396

SECOND DEPARTMENT — Rules of the Appellate Division of 507

SECURITY — To be given by the general guardian of an infant 346

To be given by a general guardian before receiving the proceeds of

sale of property belonging to an infant 341

To be given by u, guardian ad litem before receiving money or prop-
erty belonging to an infant 341

Required of a special guardian on the sale of the real estate of an

infant 353

For the payment of costs, in an action brought by a receiver in sup-
plementary proceedings 421

SEPARATION — A judgment by default or by consent not allowable 267

Reference on default in an action to obtain — who may be referee.. 417

Proof of service of summons and complaint 417

Notice of appearance, etc., not sufficient 417

Complaint for separation — averments in 417

Plaintiff to be examined on oath 417

Failure of defendant to answer 417

732 Index to Rules.

[See index to the notes, post, page 735.]

PAGE.

SEQUESTRATION — Of property — motion for the appointment of a

receiver — A\here made 450

Effect of, on subsequent suits 450

Removal of the receiver 458

SERVICE — Of a summons by a person other than the sheriff 123

Proof of, what to state 123

SETTLEMENT — Of a case and exceptions where a new trial is applied
for after specific questions of fact have been tried by a jury

or referee 184

Motions therefor, to be made at Special Term 184

Of case and exceptions and amendments thereto 193

Of a case — effect of a failure to serve notice thereof 255

Extensions of time to serve case or amendments, to be on notice .... 193
Of interrogatories and cross-interrogatories to be annexed to a com-
mission 144

Of feigned issues, where the trial of issues of fact is not provided

for by the Code 184

Of a statement of voluminous documents used on non- enumerated

motions to be on notice 258

SHERIFF — Return by sheriff, how compelled 60

SPECIAL GUARDIAN. See Guaediaw ad Otem.

SPECIAL RULES — Of Appellate Division. See Riiles. See also Index
to Local Rules at end.

SPECIAL VERDICT — An enumerated motion 289

STATE BOARD — Of law examiners — rules of 610

STATE LAW LIBRARY — Copy of the case and points at the Appellate

Division to be transmitted to 304

STATEMENT — Of the contents of voluminous documents used upon

nou-enumerated motions 258

Of facts in points. See Points.

STAY — Of proceedings — an order for discovery operates as 120

An order staying proceedings, except in the first judicial district,
served after the action has been noticed for trial, and within ten

days of the Trial Term — when it is not to operate as a stay 267

Order to stay proceedings with a view to change of venue 318

Of sale in partition or foreclosure — notice of application therefor

required 407

STIPULATIONS — Between parties or attorneys to be in writing 91

Substituting a, statement for voluminous documents read upon non-
enumerated motions 258

SUBPCENA — Application for, to compel a witness to testify within, for

use without, the State 121

The application therefor must specify the particular book to be pro-
duced 121

When it must be served upon the witness 121

Who may apply for a modification of the subpoena 121

Index to Eules. 733

[See index to the notes, post, page 735.]

PAGE.

SUBSTITUTION — Of attorneys — how made 79

SUMMING UP — Time allowed 168

SUMMONS — Service of. See Pbocess.

SUPPLEMENTARY PROCEEDINGS — Ea; parte appUcation for, to state

any previous application 161

See Eecetveb.

SUPREME COURT — Papers in, to be filed with the county clerk 45

SUPREME COURT PRACTICE — Applicable to cases not covered by the

General Rules of Practice 461

SURETIES — Justification of — attorneys or counselors cannot be 56

On the bond of a special guardian in proceedings for the sale of real

estate of infants, etc 353

See Secukitt.
SURPLUS MONEY — In mortgage foreclosure cases, to whom to be paid

— voucher therefor 374

Application for — notice thereof — reference — searches — unsatisfied

liens 396

Referee to be selected by the court 396

SURROGATE — May allow further time for service of a, case and amend-
ments and settlement thereof 194

Papers in, to be filed in the surrogate's office 45

First department — rules of the Surrogate's Court in 528

TENANT — By the curtesy — payment to, of gross sum in lieu of life

estate — amount, how ascertained 413

For life — payment to, of gross sum — amount, how ascertained.... 413

TESTIMONY — How taken on a trial 168

When testimony before a referee is to be signed 173

See Evidence.

THIRD DEPARTMENT — Rules of the Appellate Division 517

TIME — A motion to strike out irrelevant matter, or to make a pleading
definite, must be noticed before answering and within twenty days

— extended only on notice 148

Affidavit for order extending — former extensions to be stated 159

Notice of application therefor 159

Allowed on the summing up of counsel 153

For service of a case and amendments thereto 193

Extensions of time to be on notice 193

Of notice of a motion at a Special or Trial Term 267

Of notice of argument at a Special or Trial Term 267

TITLE — To property — order or judgment affecting, may be enrolled or

docketed 166

Reference as to, in actions for partition 407

The referee is to be selected by the court 407

TRIAL — Examination of witnesses and summing up — time allowed —

taking of testimony 168

Submitting to nonsuit before a referee 173

734 Index to Eui.es.

[See index to the notes, post, page 735.]
TRIAL— (Continued): page.

Keferences, other than of issues 173

Testimony to be signed 173

Referee's report 173

When the report becomes absolute 173

Exceptions to the report to be filed within eight days 173

By jury — settlement of feigned issues 184

A case where an attachment has issued or the defendant is under

arrest is preferred 262

Calendar practice of Trial Term or Special Term for the trial of

equity cases 262

Issue of fact — neglect to bring to trial 262

Of cases upon the calendar of the Trial Term or Sj)ecial Term for the

trial of equity cases 262

Of an action to obtain a divorce or separation — plaintiff to be exam-
ined on oath 417

Of an action for divorce 430

TRIAL TERM — When contested motions will not be heard at 289

TRUST COMPANIES — Depositories of money paid into court 411

Account with 411

Statement thereof to be made annually 411

Draft — what to be stated in — to be countersigned by justice 411

TYPEWRITTEN COPIES — To be written or printed in black characters

— otherwise not to be filed or entered by the clerk 142

UNDERTAKING — To be forthwith filed in the proper clerk's office 53

To be proved or acknowledged 56

Attorney or counsel cannot be sureties 56

Filed in the office of the clerk of the Appellate Division to be recorded

at large 64

Bond to be given by the general guardian of an infant 346

Bond required of the special guardian on the sale of real estate of an

infant 353

VENUE — Change of — -where all subsequent papers are to be filed.... 45

Order to stay proceedings witli a view to change of venue 318

Affidavits on motion to change venue 318

WAIVER — If the failure to folio a pleading is not objected to within

twenty-four hours 1*3

WITNESS — Examination of — time allowed 168

Examination of a party before trial — moving affidavits, what to

state 452

WRIT — Petition or affidavit on which it is granted to be filed within ten

days 54

Of inquiry on application for judgment by default — where executed. 163
Of arrest. See Arbest.
WRITING — Agreements between parties or attorneys to be by order or in

writing ®1

INDEX TO THE NOTES.

[See index to the rules, ante, page 709.]

PAGE.

ACTION — Discontinuance of -. 175

Dismissal for failure to prosecute 263

Appearance in. , See Appearance.
Venue of. See Ventje.

ADJOURNMENT — Of judicial sale. .386

ADMISSION — Of attorneys^ rules governing 7

ADULTERY. See Husband and Wite. i •

ADVERSE POSSESSION — Basis of title' to property sold at a judicial

sale '.'. , 395

AFFIDAVIT OF MERITS — Proper fornv 158

As to counsel 'i 158

, " On the'merits " - 158

Advice of counsel must be sworn to 158

Belief in advice' 1'58

:" Fully and fairly stated his case " or " this case " 158

"The facts of his case". 158

"A good and suhstantial defense to the bond," insufficient 158

" His case in this cause," insufficient 158

Defense " to said- action for conversion," insufficient 158

" A good and valid defense to the whole of the plaintiff's claim
■ as set forth in said complaint, upon the merits thereof " . . , . 158

" A defense in the action " 158

" His defense " 158

" The facts of his defense " _. 159

"Has a defense" -, * ..!...... 159

Pacts come to his knowledge 159

t Affidavit of .attorney 159

Affidavit of agent 159

Reason to be stated ^ 159

Absence from the State 159

Affidavit by maker — how far available to the indorser 159

Default — not opened without affidavit 159

ALIMONY. See Husband and Wife.

. [735]

736 Ij^dex to Xotes.,

[See index to tlie rules, ante, page 709.]

PAGE.

ALLOWANCE — Motion — to what court made 306

Submission of controversy ^ . . . •. . '. 306 .,

Motion — in what county made ,.;... .^ . , 306

Made at Rochester in an action tried in New York — set aside. . 306

In the first district 366

Application should be to the same court or judge trying the case. 3'Ofi

When rule' not applicable ". 306

Waiver of objection that application was made to wrong jiidge . 307

M<?tion, wlhere made 307

It must be to the court, and not to a justice- at Chambers 307

Extra allowance by the General Term unauthorized 307 •

Limit — fees of a special guardian 307

Not limited ^y the Code 307

, , ' Limitation of — to $2,000. . .'. 307

Aggregate amount limited ....-.: 307

; 'Limit in foreclosure — it cannot fexceed^$200. 307

Notice i ., 307

The papers must show the facts T : 308

An attorney^compelled to repay an unlawful allowance in a par-
tition suit .308

When made — not until all the litigation is ended 308

Cannot be made after the costs are adjusted;. - . . .' 308

Before adjustment of costs. 308

Before costs are taxed 30B

Receiving costs -:— eflfeet of 308

After judgment, top late 308

, ' Motion made after judgment absolute in Court of Appeals.... 308

Note on additional allowance '. 308

No additional allowance unless there has been a trial 308

When granted — not in special, proceedings 309

In special proceedings on a motion for favor , ,309

Not granted when plaintiff .was guilty of misconduct -nor against

an insolvent savings bank, , ■ ■ ■ 309

When granted to co-defendants 309

• But one allowance, though there be several trials. 309

Second trial '. ....:'. '■ 309

Actions in which the oour,t hfis power to grant it 30^

, ; ,■.:; Case both difficult and extraordinary .' 309

^;',i|i;j V ■ Proof of value necessary. .' •■ • 309

;*;/■"; Power of court affecteci by the amount involved 309

,' ■' '' Offer, after a, defense is interposed, to allow judgment, and ac-
ceptance thereof ., ■ ,• • ■ : 310

\yhen imposed, on application to discontinue .■ . . 310

Ia'dex to Notes. ' . ■ T37

[See index to the rules, aiile, page 709.]- '
ALLOWANCE— (Continued): , page.

Basis of ........: .} , ■; .' . . i .'. . . 310

Trade mark — • allowance based thereon .^. .....(■, 310

Basis furnished by evidence at the trials. ■. 310

Plaintiff's claim may be tlae'ihasis' for air extra allowance to the

defendant : ' : /. 310

Basis shown subsequently by affidavit 310

Refused where no damages were demandedjn the oomplaint, there

being nO' basis. therefor. :........:...,.. 310 ,

Short cause, no basi^. for 31 1

Increase of extra allowance made qn uncertain evidence set aside. ,311
TBasis in an action, against a municipal corporation' relative to a

^ right of way '. . . 311

Where a lease is not a basis therefor ' 311

Basis, whert! recovery is had against one defendant only. . . ;. .... 311

Trade-mark, not in. itself .sL'basia. : 311

Trade-imark — value of sub] e'ct-matt'er must be shown. 311

Not granted where the valu&of tjie subject-anatter is not shown. . 311
In an equity action extra allowance should) be a reasonahle

counsel fee ....:....... , . . . 312

/ I To compel the lowerifig of a dam.. . ^ ' | 312

Action by a taxpayer ". 3 12

Allowance upon^a corporate franchise j 312

Action by the Attorney-General to annul a charter 312 ■'

Improper in special proceeding 312

Basis for extra allowance to a successful defendant in an actioji -

for an injunction : 312

In an action to dissolve a corporation 312

In an action to reco.ver the interests of a corporation in trans- •■

ferred , property . .■ 312

In an action on note^. 313

Partition suit — allowance in ; 313

An extra allowance in partition 313

'In a partition suit when a defense has not been interposed 313

Only the pecuniary importance of the litigation considered 313

A6tion for the reformation of an instrument , 313

A trial not necessary to the graiiting 313

Not granted on, si leasehold nor where* no defense has been inter-
posed >.. .' . . 313

Where the subject-imatter is a two years' lease. .> 313

A demurrer is a defense -...'.. ..^ 314

(Jeneral provision® — plaintiff not entitled to an extra allowance

where he is not the successful party 31-1

- , Allowed only where .general -costs are recovered 314

\',, Indemnity" — allowance is granted as - 314

'38 Index to Notes.

[See index to the rules, ante, page 709.]
lLLOWANCE— (Continued) : '

General provisions — (Continued) : ' ' , page!

A contingent interest of the attorney in the recovery militates

' against it . . . . r r 314

Premature application 314

Second; motion, when irregular . . ; .- 314

Discretionary .' 314

Interference by appellate court 31-4

Only in the event of an abuse of discretion 315

Extra allowance, forms part of .v... 315

In murder trial , '. . 315.

Power of court to grant , \ 315

Eeferee — wligre the action has been tried before a referee, the appli-
cation must be made to a Special Term 316

Referee's certificate — not sufficient -unless facts be ehown to

court .^ ". 316

Additional allowance granted oil the certificate of a referee 316

Appeal — to Court of Appealai. ■■_■... 316

Does not lie froni an order of the General Term, reversing an .

allowance by a purrogate 316

i The order is appealable to the General Term 316

Discretioii of the trial ooiirt not disturbed - 316

When Appellate Division cannot pass iipon motion for. ■ . ■ .- , 316

MENDMENT — Of rules — construction of .' ' 10

Of clerk's minutes .'" .* 69

Of' oas.e on appeal '. 226

Of oindertaking. See Undertaking,

PPEAL — 'Who may not sit in review ; ^ 9

'From an order grtating a discovery. ~. 119

Judgment, for appellant without new trial : 252

Evidence on appeal — when the court will, on appeal, receive a docu-'

ment imperfectly described in the case '. 252

Documentary evidence on appeal — when allowed 252

Production of record of certificate of tax sale on appeal. . . ... . 253

Receiving a decree'on appeal to sustain a judgment !••■■ 253

A record may be produced for the first time before an appellate -

court ■ • ■ 253

Admissions not received in evidence upon the trial. 253

Court of Appeals confined to findings of fact by referee 253

No appeal to, on m.6re question of costs 253 ^

Appellate Division ^- review of facta by , ; . . 254

Review of order of 254

Court of Appeals concluded by unanimous decision, of Appellate

Division, etc ■ ■'. 234 .

Statement on appeal — to Court of Appeals ; 253

^,- iSTDEX TO i^OTES. ( 0'»

■tX7 . ■ -

^ [See index to the rules, ante, page 709.]

^APPEAL— (Continued): . page.

General Term — review of facts by . ' 254

County Court — judgment on the report of a referee ,254 '

Notice of argument -^ proper after settlement of a case. '...'. 285'

Eeargument — ordered When the highest court has decided otherwise. 285

If important point overlooked toy the court. . . ., 286

Overlooked by counsel ' 286

. ' ^Motion for, not stating the facts overlooked 286

Eeargpanent denied, where the question can be settled oh a new

trial i 286

Heard upon the s;a,me case 286

Denied, in case of leave to go to Court of Appeals t. 286

Effect of a decision of the ^Court of -Appeals .' „.....•..,. 286

When application is too late ^ 286

Order denying reargument at General Term — not reviewable in

Couft of Appeals '. 286

\yhen a reargument granted , 286

That remedy exists by appeal — is ground for refusing a reargu-
ment ■ 286

Motion, not appeal, the proper mode, to enforce stipulations... 286
Laches in filing note of issue 292

■ Calendar on 293

Printing papers — dispensed" with only on order of the court 299

Eight of Special Term to dispfense with the printing of papers

on an appeal 299

To be sparingly exercised 299

■ Papers to be printed on an appeal from an order of the County

Court granting a new trial 299

What papers are required at General Term .■ 300

Contents of record oh appeals from orders 300

The opinion below 300

Two independent cases cannot be incorporated into one appeal

book : 300

Appeal boiok showing no decision of the issues of law. 300

Omitting opinion ^^argument postponed to allow it to be pre-
sented '.... ■!, 300

'^' Argument on the Wtenograplier's minutes, denied 300

The expense of printing is a necessary disbursement..... 300

Cost of printing what papers, is a taxable disbursement. . ,V . •■.■ 300

Expense of preparing the' case in a criminal cause ..*.,.. . . 300

Error in printed case — when disregarded 300

Papers used on appeal different from those used below ^ — remedy. 301

Rule — how enforced ; 301

Case, when ordered off the files 301

' Irregular case 301

■*^ Irregularities must be corrected by motion ) . . . 301

40 "■*'■;'• ' Index to jSI'otes. r,^.

[See index to the rules, ante, page 709.] • •^•

PPEAL— (Continued): i'

Printing papers — (Continued):-, ' page.

Amendnjent of appeal papers not allowed after argument and'.

decision on appeal 301

Court cannot shorten time for service of printed case 301

Appeal papers — must be certified ; 301

Certificates to an appeal book on appeal from an order 301

Uncertified case stricken from calendar *..''...<.. 301

Exceptions ordered to be heard at General Tto-m — plaintiff must

Serve papers 301

Appeal dismissed — if proper papers are not submitted, 302

Absence of papers 302

When it does not appear whether the appeal is from a, judgment :

or, an order , ,. 302

New York Common Pleas — failurd to print papers — remedy. 302
New York Common Pleas — length of notice' to dismi* appeal.. 302

' , By City Court of New York for failure to prosecut<; :.-302

Dismissal of appeal , for failure to serve printed appeal papers ^-

• a second appeal cannot be taken without leave 302

Judgment on appeal — form of -. : 302

Must conform , to remittitur 302

Points — what is covered by 302

Submission of brief after arguinent. ,_. ' . . 302

Erj-or , considered, though not argued -. 302

On appeal an order is presumed to have been correctly granted. . 303

; Appellant's points sliould point ■ out defects / 303

Numerous exceptions — duty of counsel to point out in his points '

those upon which he relies ; , .; 303

From order on motion for additional allowance. ., 316

From order on rpotion to change venue 333

From order in surplus money proceedings .....'..... 403

From order granting examination before trial . , ■. . . . 460

See Case and £!xceptions.

PPELLATE DIVISION — Formation of 9

"V^Tien order of, reviewable by. Court of Appeals ,.:..,, 208

Effect, of unanimous approval of finding of fslct by... ' ^ 208

' When, cannot reverse on the facts .'T.* *. ■. . 208

PPEARAJNCE — Authority of attorney assumed 70

By an attorney, witlinnt authority, gives jurisdiction 70

No jurisdiction acquired by a notice' of appearance from an unau- ■

thorized attorney *. . 70

Unauthorized appearance in a .Justice's Court 70

Unauthorized appearance for a non-fesident : . . . . 70

■\^oluntary — eflfeet of . . . ,' 70

Notice — not signed, etc., a nullity 71

Extension of time to appear 71

' Bv executor •■ 71

Index to JNotes. . 741

[See index to tlie rules, ante, page 709.]'

APPEARANCE— (Continued): '. < page.

What constitutes an appearance — notice of appearance or a copy of

an answer or demurrer, only ' . . . ?"..,..... 1 . . 71,

\YhfU an answer verified by a defendant not a resident of the

State does not 'constitute a general appearance ', 71

Motion, by a defendant not served "..'. 71

^ Notice of motion 71

Notice of retainer 71

Notice of bail . . . '. 72

Notice to vacate attachment : 72

■Appearance upon a motion 72

Opposing a motion for an injunction 72

Appearance on motion for alimony ., 72

Affidavit and notice of motion ^. . . 1 72

Order extending time ..... j 72

Procuring an extension of time to answer :'.'... 72

Stipulation signed "defendant's attorney "'....■ 72

, Ci'oss-examination by an unauthorized person. .' .-. 73

For defendant residing in other State ,. . . . , 73

Hovr determined — decision as to, not appealable 73

An appearance in a State court, by what rules, considered 73-

By whom and when — a husband may direct an appearance to be

entered for his wife 73

Effect of an appearance by partners, where only one has been

served '. 73

When the counsel may be regarded as the attorney 73

When a pai'ty may appear. . , '. 73

In person — not allowed when an attorney appears. . . .' 7.3

An attorney precluded from acting after he, has given a consent

for substitution 73

In Justice's Court ; . 74

Effect of — a, waiver of want of jurisdiction over the person. ....... 74

Jurisdiction over the person admitted by an appearance and

answer , 74

Objection to jurisdiction waived by appearance and demurrer.... 74

Waives defects in service ;....... .-.-. 74

Voluntary appearance By the United States . . 74

Appearance where an attachment is issued. . . > 74 <

Appearance of non-resident by attorney confers jurisdiction .... 74
', An appearance for , a corporation sustained, though it was im-
properly served 74

Precludes raising the question whether the action might be

brought under Code Civil Procedure, § 1780 ; 75

\ Appearance by an alien and non-resident.- J. ... 75

A general appearance by one sued in a local court — does not

, admit its jurisdiction over the subject-matter 75

742 Index to Notes.

[See index to the rules, ante, page 709.]
APPEARANCE — Continued) :

Effect of — (Continued): _ • page.

Waiver of objection to the jurisdiction of the court. 75

Waiver of objection to the jurisdiction over thte person wliere the

appearance is a qualified one 75

By one not served — -a defendant not served cannot appear 75

Cannot move to dismiss the complaint, ,. 75

A defendant "against vp^hom judgment is asked for' has a right to

appear although not served 75

A partner not served may appear •. 76

Motion by a partner not served to set aside a judgment regularly

entered against the firm 76

Objection '■ — to the right to appear, when it, should be -taken 76

Pi'oof of authority — required of an attorney in an action to recover

real estate . .. : 70

It is discretionary with the court to require an attorney to show

his authority / .'!'■'..■ 70

Extent of inqiiiry as to authority '. 76

Ejectment — ■ proof of authority must be filed r r . . 70

Relie"f from unauthorized appearance — when a judgment •will not be

i .set aside because an appearance was unauthorized 76

Unauthorized appearance for one, not a partner in a firm repre-'

sented 77

Laches 77

iVot set aside where the attorney has dded and there is laches. 77
When an unauthorized appearance works no injury, it will not

' be stricken out '. .-. 77

No remedy in a collateral proceeding '. '. . . 77

An unauthorized appearance /for non-resident 77

By person forbidden to practice 77

May be disputed by judgment-debtor. ...;;. 77

, Place of residence — how determined "... ......".,! 77

Service by mail .' 78 ■

/ , Relates to the , post < office ....'...: ■ 7S

Foreign judgment — recital of appearance in the record of 78

Withdrawal of appearance — on payment of costs. , ■ 78

Special appearance — demand of notice of execution of any reference,

or writ of inquiry — to what it entitles deffendant .......... . 78

An 'objection specially to jurisdicition is good ground for exl^end-

ing time to appear generally and to plead 78

Prohibition to act, not avoided by , 78

By non-resident 78

Removal to U. S. court — : time of removal — not restricted to that of

entering appearance 78

Appearance in Surrogate's Court 79

Appearance in foreclosure 361

Index to Notes. ' . ,- 74:3'

" ■ ' ■ , . ' ' f^,

[See index to the rules, orate, page 709.] A , :'

, ' PAGE.

ARBITRATOR— 'Papers on appeal from the decision of arbitrators, 221

ARGUMENT — ]S[otice of 285

ARREST — 'Use in the alternative of equivalent terms in defining an

: offense is not a ground for vacating an order of arrest. ,95

ATTACHMENT — Xot vacated because of failure to file the affidavit.. 47

Affidavits on — filed under section 639 of the Code 47

Failure to correctly state the grounds of attachment in the

warrant — how amended ; . . 95

What is a sufficient statement of the "grounds of the attache

ment " 95

Sufficiency of warrant '. 95

AmeHdment of warrant 95

Upheld though summons had not been served 141

Not sustained because of non-service of summons on defendant,

who has died 142

ATTORNEYS AND COUNSELORS — Rules for the admission of....... 34

Construction of rules, for adniission of attorneys 34

Race or sex does not debar 35

Citizenship of applicants for admission 35

Offices of attorney and counselor are distinct ; 35

Office of public trust within the Constitution, 35

Not a Stale officer 35

An attorney is a public officer within the Non-imprisonment Act. 35
; illequirements as to . publication of rules as to admission of

attorneys,- directory ...,.\:. ,. . . . . 35

Filing eertifi^cate nuno pro tunc •.' 35

Study — course of 0 35

Admission ^ power of Supreme Court over — exclusive ' 35

The court acts judicially '. 35

' Application for — is a special proceeding — an order denying it

is appealable .-'■.■ - 35

Proceedings in Supreme Court, after decision "in the Court of

' Appes^ls . . .' • 36

Good character of applicant — decision of Appellate Division con-
clusive 36

'■■/ - Admission to practice denied to attorney from Italy 36

"1 Registration of attorneys — Practicing attorneys are required to

Filing oath nunc pro tunc 36

Oath — of office ,.:^ 36

Of allegiance *. "6

.Disbarment — general power of the court 36

. ' ■ Power of Appellate Division to disbar attorney — disbarment in

> addition to criminal prosecution 36

'''44 , Index to Notes.

[See index to the rules, ante, page 709.]
ATTORNEYS AND COUNSELOBS — (Continued) :

Disbarment — (Continued) : pace.

Duty of the court .'..,. , 36

Not used to settle quarrels ,.. .K 37

Misappropriation- of client's money ., 37

Power of court ; 37

Power of reviewing court 37

Punishment and remedy — by summary proceedings — not by

aotioij ' , 37

Admission to or remotal from practice by Appellate Division. 37

Under control of court 38

Proceedings proper for : 38

Court to institute proceedings — proper practice 38

The court may act summarily : 39

Commission to take testimony, — irregular 39

Waiver of irregularity , . /. 39

Unwarranted proceeding to disbar is not a contempt of Court. 39

Court will awaitVresult of criminal trial 39

What justifies^ disbarment — a felony forfeits the officp 39

, What crime does not forfeit his ofBce 39

A crime, notwithstanding its pardon, may be considered 39

Bad moral eharactet .' 39

Changing the verification of a ^pleading :) 39

Use of an undertaking on a second application 39

Fraudulently imposing upon the court 40

Deceit or malpractice ' 40

Deceit, defined. 40

'• Malpractice, defined '...'...... : | .:.... . 40

Deceit, practiced in his character as such, though not in a, suit . . 40

Failure to pay over money. ^ 40

Deceiving client '. / . . . 40

Using funds bel<3nging to estate . , 40

Pur,chasing fraudulent certificate 40

' I'ayment of money for adjournments of court 40

Concealment of fact of conviction 41

Frauds upon clients ....." 41

Taking testimony vipon written interrogatories 41

Regularity of criminal prosecution will not be inquired into 41

Aidiiig the manufacture of evidence tending to deceive 41

What is not punished by disbarment — • instituting without cause pro-
ceedings to disbar another attorney ". 42

Writing to judge who tried case .' ' -.. 42

Inserting scandalous matter in pleading... 42

Action by, as a party . . . , 42

Taking vexatious proceedings for delay 42

Imprisonment for the non-payment of a fine. 42

IxDEx TQ Notes. , 743

[^ee index to the riilea, ante, page 709.] ^
ATTORNEYS AND COUNSELORS — (Continued) : / I ■

What is not punished by disbarment— (Continued): / page.

Return of records by, how enforced 42

Actions and conduct held censurable 42

Eeadnjtission, to practice — application f or ^ 43

Review of disbarment — order suspending an attorney — how far

reviewable by the Court of Appeals ,' 43

Decision by General Term, — not reviewable in Court of Appeals. 4.'!

Who cannot practice —^ judges not allowed to practice 43

New 'York, city — none but attorneys to practice iji . . 43

^ A judge — the partner of a judge and a judge's clerk — can-
not practice in liis court : ... 43

Partner of district attoriiey, or otlier public prosecutor, not to »

defend r 43

Public prosecutor — when unable to act — punishment 44

- - Surrogate not to practice 44

; Surrogate's clerk, o^ other person employed in surrogate's office,

not to practice before the surrogate . . . 44

A surrogate's father or son not to practice before hinv .' 44

■Constable, laW partner or clerk of justice cannot practice before '■"■".'.!

the justice ., ■. ,. . .-, , 44 .

, Sheriff, etc 44

Clerk, etc ._....: '. . . . 44

; Oonstitutional right — citizen of another State.... '....; 44*

Right to piractice, not, protected by United States Constitution. 44

Non-residents — cannot practice 44

Non-residents — may practice in this State, when 44

An alien cannot be admitted .■■.■*., .' 44

Punishment . . ., '', ....... ^ .... :, 44

^ Action against attgmey by client for unauthorized settlement. 4.5

Effect of appearing by one forbidden to practice 45

Corporations may not -practice law 45

United States courts — attorneys iind counselors of 45

• As bail and as sureties on undertakings 59

Substitution of attorneys — nature of application 79

Jurisdiction of the Supreme Court over, on motion or in special

pro.ceeding . . * ; 79

When allowed . . '. '. 79

Allowed where the only service rendered hy the original attorney ,

was to appear .....,...' , j . 79

. Payment of costs , 79

What the order of substitution should direct; — reference to iix

compensation . . . > 79

Where an attorney has been guilty of misconduct .:.'.. 80

Iniproper and neglectful conduct : . . 80

Omitting necessary ' parties ■ , 80

746 : ' : Index to Notes.

'■%\ '_.

[See index to the rules, ante, page 709.]
ATTORNEYS AND COUNSELORS— (Continued):

Substitution of attorneys — (Continued): ' .^V page.

When substitution will not be allowed 80

Right of a client to change his attorney is absolute — lien for

fees r- 80

Consent of attorney alone, not enough 80

Consent of court to ; '.,... 80

An order of- substitution is essential 80

• When it takes effect ! ...■.....'. ' 80

; Service of .notice without order, sufficient : . 80

Where one attorney is retained, a second can act only after being

duly substituted - 81

♦ Attorney retiring from a suit — ^'when he ' loses his claim for

compensation . ." 81

Attorney's withdrawal, not justified by a failure to pay his fees. 81

• I ^ ,, Wrongful substitution of attorney : ,....,... 81

• . ' , When an appeal is pending in the Co^irt of Appeals — applica-

tion should be made to tbe court below. 81

A lojng . delay justifies it. . ; ■ 81

Opposite attorney required to permit inspection of the plead- -

ings by a substi-tjited attorney -. 81

Conclusiveness of a determination of' the Appellate Division re- ,

' quiring substitution . ' ;...._....<....■...'..:.:.. 81

Attorney's rights to be protected. .■' ....*..'....■ 82

.'Court will not "stipulate that .bond be given 82

Termination of authority — wheii an attorney's authority ceases... 82
'He is precluded from acting, after be has givto-'a consent for

' substitution . . ,\ v i 82

Rule staying proceedings for .thirty, days after notice in case of

death «r removal ' — not applicable after entry of judgment . . 82

It ceases with . the entry of judgment .'.....'.... 82

After entry of judgment, a new attorney without substitution

may sign notice of appeal .' '. 83

'SuJbstitution for the purposes of an ap'peal without an order. . 83

Appeal cannot be taken by a new attorney unless substituted. ......" 83

Notice of appeal'pot signed by the 'attorney of record — objec-
tion, how to be taken ' '.......'. ■ . 83

Notice must come from the prevailing party. 83

When relation exists S3

I Acceptance of service of notice of appeal, compelled 83 ^

Satisfaction of a judgment by the original attorney, for whom

/ another has been substituted, is invalid 83

■ Liability of attorney after relation ceases 83

When party entitled to order without payment of additional fees. ... 84

Rule applies to Sijrrogatefs Court '■ 84

Delegation of authority ., , : 84

Index to I^otes. , . , 747

[See index to the rules, ante, page 709.]
'ATTORNEYS AND COUNSELORS -*- (Continued) : page.

, Lien of an attorney — extent of it. ..,...'... .,. .'. .,•; 84

What it does not embrace. ..... , 7 : .,...."., 84

Creneral" indebtedness , 84

Lien where a judgment is for costs only. .■.■.;...■ '84

.Continuing an action by an attorney for the costs ...,..: 84

Where compensation is 'to be paid from proceeds of judgment. . 84

To what it attaches . . . . ' ^. . .■: 84

It attaches to the judgment recovered .:....-.!. ., 84 .

To what papers the lien'attaches ........;... 84

Upon ' what- property ' . : ; , '. \ . . 84

On property in a receiver's hands.,. ■. , . . .' 85

Attorney's lien superior to a judgment creditor's 85

Satisfactipn • set aside. "i^ '. 85

The judgment .cannot be impeached ior.lack of authority 85

Measured by taxable costs •. 85

^Taxable costs the extent of the recovery ,. 85

Entitted to taxable costs '^ of right -^ disbursements 85

Extends to all provisional remedies ..........' .'...... 85

Not limited to services in the particular. ' action 85

No -lien for general services on proceeds of a judgment paid to

the receiver of his client . . ; 85

A lien dfoes not apply to a special proceeding 86

Does not embrace alitoony. . . . ; 86

Restricted in case of Substitution ...' 86

The attorney of record .alon,e has a lien :....'. 86

Counsel has not a lien ............ J 86

An, attorney cannot claim, an assignee of a cause of action for

personal injiu-y .................. 1 86

Lien not . assignable _....'.'. ;■: 86

Enforced against his. client's assignee , 86

AsSigraniient of judgment — lien no answer to sununary proceed^

■ ings .'. '...-..•". ; 86

Lien authorizes 'entry of judgment after the -client's death 87

Procvf of the extent of the attorney's lien. 87

How determined 87

Attorney may follow proceeds int9 hands of third parties,. 87

When the lien cannot be defeated Vy a setoif ibetween the parties

to the action. .^ 87

Does not prevent the settlement of 'the »afion by the parties. . . .• 87

A settlement with a destitute client, Set aside 88

Entiy, of judgment after settlement. 88

The; lien does not prevent a settlement V 88

It is superior to a right' to ;get off a judgment. . '. 88

748 , liSTDEX TO I^OTES.^

[See index to the rules, an ie, page 709.]
ATTORNEYS AND COUNSELORS— (Continued) :

Lien of ari attorney — (Continued): page.

The settlement of an action is ineffectual to defeat an attorney's

li«n .......: .■........:... 88

Defendant may settle aetion, despite attorney's lien f 88

Protection against compromise — what constitutes a good cause

of action .....;.. gg

Satisfaction €f a judgment without notice to the attorney, where

the creditor is insolvent : 88

Control of attorney by court. .' .;.>-, . 88

Excessive charges — retaining money for 89

Lien restored when an attorney is compelled! to repay an allow-
ance 89

Lieu not affected by a conveyance to himself -. 89

Continues though the ela-im is barred by Statute of Limitations,',, 89

Municipal Court of Buffalo — no lien in 89

Where there is no counterclaim in the answer, the lien of the

' defendant's attorney cannot attjieh 89 •

Notice by attorney of his interest in the recovery — necessary.. 89
Notice to the defendant's attorney is not notice to the defendant. 89

^ Notice is not necessary. 90

When the atto'rney is r^arded as an equitable assignee of a judg- '

', ment 90

Effect of s^tlement' by client -. . . 90

When lien may be established'. 90

Enforcement of lien — an application therefor is aspecial proceeding. 90

Collusive satisfaction of judgment, when set aside...., ' 90

Settlement of an action in fraud of attorney's rights, how vacated 90

How the lien may be enforced 90

Compensation and lien of attorney 90

Docket of order for his fees is improper s 166

Eeferehce to report on an attorney's Hen - 183

Employment of, hj receivers 451

BAIL. See Undektaking.
BONDS. See Undertaking.

BOOKS — Production of ^ — on examination before trial 457

Inspection of. See Discovery.

BRIEF — Points on appea,l -. 302

BUSINESS HOURS — Of county 'clerks 66

Of sheriffs 66

Of registers of deeds. . , ' 66

CASE AND EXCEPTIONS — As to exceptions, see 5Jeiai,.

Requisites of a case 199

Practice as to making .'. 199

" ' , Ikdex to JSToTES.' i 74(9 '

[See index to the rurles, ante, page 709.] ■', '

CASE AND EXCEPTIONS— (Continued): . 'i ' page.

Contents of ._ . ' ; '; _ ; 199

Tlie opinion of .the court below forans no part of the record. . . . 199
Nor a copy of an account, served'in pursuance of a demand there-
for, but not put in evidence '. 199

Narrative form :'. '. 20O

Preparation of case necessary Only' through rules of practice .... 200

Failure to serve case 20O

Appeal by both parties — separate records 200

Two independent cases cannot be incorporated in one appeal book. 200

A case essential to review » / 200

But not in all cases '. 200

Where a formal case and exceptions is, unnecessary 200

What must be presented by a 'case in tne event of a sealed' ver- ,

diet ..'..' ' 201

Exception on trial : 201

Case to contain all that occurred on the> trial ';i 201

Cise should contain statement that it contains all the evidence. 201'
It should;, contain all the colloquy betweeil the court and counsel. 201

Order of stating evidence on appeal 201

Case ^to state real facts " 201

A paper, not read s.hould not be in, the case 201

Intelligent index !';■:.'. 201

An order striking out findings of court -^ ■when properly inserted. 202

The error ilaimed m.ust appear in tl^e record ■ ■ • . 202

Failure to print exhibits as directed by the court, is irregular. . 202

Necessity of: incorporating rejected do'cuments , 202

Omitting letters submitted to the jury 202

Absence from case of papers covered by the certificate ; . . . 202

Omitting Cumulative evidence , 202-^

Case presenting only questions of law -. — insertion of all the evi-
dence in, not proper 202

Case upon specific exceptions or questions only 20.3

Appeal upon the judgment roll alone 203

To review legal questions a case need not contain all the evi-
dence ....'.......> , 203 .

A bill of exceptions should contain a, concise sta1;ement of facts. 203
Exceptions and introductory statement <if proceedings, without

the evidence .'. , 203

Respondent; presuimed to have Had inserted all 'the testimony

necessary to sustain the rulings , 203

, Evidence omitted from proposed case — duty of respondent, to

supply .~. 203

Papers omitted from case — presumptioni 204

750 Index- TO I^otes.

[See index to the rules, ante, page 709i]
CASE AND EXCEPTIONS— (Continued): page.

jRulihgs on, questions of law — what is notice to the respondent. . 204

When the case'-jieed'not contain all the testimony, etc 204

.Oase not containing the evidence — review limited to errors of

law . .- .• 204

Appeal heard on judgment roll — no evidence , printed 204

Nonsuit reviewed, though the record does not show that the case

contains all the evidence 204

Failure to print letters objected, to — esception to their, exclu-
sion unavailing / , 205

Questions of law reviewable, though there -is no evidence in the

case ". 206

Printing report and a,ll findings : 206

Imlnateriial letters not to be printed' in the case 206 .

Further findings — proceedings to obtain, may be inserted in the

case '.: _ 206

Respondent's exceptions — not t(? ibe in case 206

- When he may insist that it be disregarded 206

- Judge's charge .' , '■■■'■ ■' 206

Not to be put in a ease, unless excepted to 206

," Alleged portions of charge stricken out — error cured by stipula-,

' tion ,...■.....'...;..., _. . : .' 207

Statement as to the time of oommenceiment of the action 207

A statement of fact^in the opinion. 207

The ease must show plainly the erroneous ruling. . . . ' 207

Limit imposed upon plaintiff's case on the -trial 207

Wheiie pleadings do not coiiform to the evidence - 207

When a referee's findin/g of fact are to be reviewed as being
against the weight of evidence^ as haviiTg no evidence to sup-

- port them i .*l. . . . ; . . ., .' 207

When motion for new trial made ■ 207

Motion for a new trial of an issue of fact after entry of an in-
terlocutory judgment can only be made upon a case and ex-
ceptions '. ■ ; ^^^

Motion for new trial in an equity action — made when applica-
tion is mad^ for final' judgment '. 20S

Case miist be, made and settled , j , 208

Motion not heard on evidence alone, unless iy consent 208

A case is ^necessary, when motion' is made on groimd of nfewly-

discovered evidence ; ^

TJuestion of fact — how presented' at the General Tei-m 208

When Appellate Division cannot reverse on the facts 20S

When order of Appellate Division reviewable by Court of Appeals. 206

Index to Notes. Y51 ,

[See index to the rules, ante, page 709.]
CASE AND EXCEPTIONS— (Continued): page.

Unanimoua approval of finding of fact by Appellate Division is

conclusive upon Court of Appeals ' 208

What necessary for review in Court of Appeals ' 208

Appeal to Court of Appeals from order granting new trial — ■ ap-
pellant must attend to exceptions ■ 209

Contents of case on appeal '. , ;.....■ 209

When an appeal will not be considered! : 209

"Minutes of referee" attached to a judgment roll — not consid-
ered on appeal 209

The clerk's ' minutes not used to indicate the questions raised

upon the trial or the grounds of the decision 209

Appellant not bound to print in the case on appeal to the CJourt

■of Appeals matter disallowed by the trial judge. . . . .' 209

Evidence — prima facie of the facts stated' , 209

Settlement of case by trial judge 209

Amendment . . . . ; 210

Certificate — necessary to a case reviewing facts 210

It is conclusive » 210

A case should state that it contains all the evidence. 210

' Statement that the case contains all the evidence — when proper. 210

, Case must purport to contain all the evidence. 210

Certificate not necessary to obtain review of rulings of the trial

«- judge, or of his charge 204

Failure of certificate to state that it contains all the evidence —

what errors of evidence reviewed i 204

1 ' What is a sufficielit statement of evidence 205

Effect of a failure to state that the case contains all the evidence. 205
Where there is no certificate and no order denying motion for a

new trial ., 205

When -the case does not contain the evidence 205

What will be considered, when the entire record is a bill of ex-
ceptions, and the judgment roll 205

Errors of law considered when no certificate is made 205

No review of the facts without such a certificate 205

p . Where there is iio certificate, respondent is entitled to assume

that no review of questions of fact Will .be demanded 206

A certificate which covers " all testimony given, all the exhibits
of the parties arid all the proceedings had upon the trial " . . . . 210

'Certificate that it contains all the material evidence 210

When all the material evidence appears a, certificate is proper. ... 210

Where appellant shpuld te allowed to insert a statement 211

Certificate does not imply that the evidence is word for word. ... 2H

752 liSTDEX TO XOTES.

[See index to the rules,- ante, page 709.]
CASE AND EXCEPTIONS— (Continued): , '; ,

Certificate — ^ (Continued) : ' , - i page.

In tlie absence of a statement, the court may determine that there
was no evidence to support any finding of fact duly excepted to. 211

' What is a sufficient certificate. 211

A stipulation that a case contains all the '^ oral evidence " ' 211, -

That the case contains, all the evidence' bearing upon the exceptions 211
Miifutes of testimony and proceedings on the trial, sufficient.... 211
When the minutes of- trial signed by the clerk are a sufficient

certificate 211

A certificate that the case contains " all the testimony taken on

the a,ppeal " : 211

What statement is insufficient .'. 211

" The foregoing contents are all the testimony and proceedings

taken on the. trial of said action " 212

Appellant's attorney's aflSldavit does not supply the place of a

certificate 212

Exceptions to findings of fact not necessary where there is a

: certificate )■ 212

The Special Term may insert in a case a statement that it eon-
tains all ihe evidence, , . . : 212

"Upon the extent of the plaintiflF's damages" insufficient 212.

Absence of certificate prevents reduction of recovery by the Ap-
pellate DiV^ision 212

Testimony not equivalent to evidence , 212

Statement that the record ''contains all the testimony taken upon

the. trial in this action " .:...'. 212

That the case contains all the "testimony" given upon the trial. 213
The case must contain an prder denying a new trial and a notice

of appeal' therefrom ' - . 213

Appeal from a judgment and not from an order denying a new

I- trial 213

On an appeal from the judgment, the facts are not befoj-e the court

i for review 213

In absence of the certificate questions as to excessive verdict, etc.,

not considered . . . ^. 213

Ee'spondent not compelled to add testimony, to enable a referee to

certify that case contains all the evidence 213

Xo particular form required 213

Absence of a certificate precludes the appellate court from con-
sidering a motion for a new trial .213

No review of evidence, by the Greneral Tenn, in the absence' of
a certificate, aind an appeal from an order denying a new

trial ': 214

Absence of certificate in action for negligence — questions not
It considei-ed by Appellate Division 214

Index to Notes. 753

[See index to the rules, ante, page 709.]-
,jCASE AND EXCEPTIONS— (Continued):

Certificate — ■ (Continued) : page.

When facts reviewed without exception to a decision, if Case

contains al'I the evidence . ■. :.'.■. 214

Motion to set aside verdict — review of — what the case should

contain ■ 214

Where there is no certificate, a verdict for six , cents damages

■ Will not be set aside '. . . . 2.14

The case must contain all the evidence. . . . j 214

Record on an appeal from an order conflnning the report of a

referee, to assess damages 214

■ No review of the direction of a verdifct if there be no certificate. 214
Judgment of afiirmance by General Term of the City^ Court is
.'conclusive upon the Court of Common Pleas, ' in absence of

, certificate . ., 214

When a certificate is not requisite to present an exception to

the direction of a. verdict . . . .' ' '. . 2il5

Case — .without evidence , 215 '

- No appeal on the evidence without it , 215

When the oa.se should be ordered to be annexed to the judgment *>

roll ...215

Objection that a ca,6e does not contain a proper eei'tifieate 215

Certificate on appeal from order of Surrogate's Court 215

Presumption — where the case does not allege that it contains all

the evidence .' .' 215

. .Eesppndent 'presumed to have ha.d inserted all the testimony

necessary to sustain the rulings : . •. '215

Presumption that facts were proved to sustain the fin,dings. ... 215
When absence of certificate fails to compel presumption that

evidence sustained verdict 215

. ^Presumption that sufiicient evidence was given to support the .

, -judgment 216

Presumption indulged by appellate court 216

By Court of Appeals, where, after three trials, no objection has

I been taken, and there was no certificate 216

Not raised in order to sustain a judgment for the recovery of a

statutory penalty ■, . , 216

Uncontradicted evidence .' . , 216

Presumption .of consent where evidence is received without

objection .' 216

Case without' findings of fact 216

■-Case without .certificate — presumption that General Term

passed oil exc&ptioiis 216

When thfere is no presumption that facta were shown other than

those stated in the referee's report 217

■ .'/Where decision of the court is general, and states no findings. . . 217

754 ' Inbex to i!foTEs.

..i

[See index to the rules, ante, page 709.]
CASE AND EXCEPTIONS— {Ck)ntmued):

Presumption— Continued) : ' page..

When- statement of facts in complaint assumed to' be true T 217

' In favor of referee's report / 217

To what facts the presumption is confined 217

Time of making case * ' 217-

Where the trial is before a jury 217

Computation of time ; 217

, Extensioii of time to serve exceptions does not extend the time

, to appeal, or mce -versa ; 217

Application for an extension of time must be made in the court ',

below 217

For relief from defajilt in serying a case should be made to

the court below t '. 217 '

Default in filing a case t- what must be shown to open, do'fault . 218

Omissioi) to make. a case 218

-Notice of entry of judgment — what notice is insufficient.. 218

As to form of notice of entry of judgment. '. 218

Abandonment of ease — sfay until costs of prior action are paid. 218
Default in having case signed and filed within ten days works an

abandonment — relief thereafter , ;.....,.... 218

Surrogate's Court — appeal from a decision admitting a, will tg -pro- _

bate, disapproved , , 218

Decision, how reviewed ; - 218

Clerical error 219

Questions of law reviewed only upon exceptions taken "under

Cod^ Civil Procedure, §'2545. 219

landings by -S'urrogates' Oburts.^authorty to make. 2ip

Case on appeal from — how made._. ..'...; 219

Appeal to General Term and' Court of Appeals 219

, Case upon an appeal from surrogate's decree must be settled-.... 219

Making of a case does not preclude' raising the question _oi jm--.'

isdiction 219

Review of surrogate's decision without a case 219.

Eight of a sm-rogate to extend the time for making a case 219

Findings of a surrogate on an accounting — how, far subject to.

review in Court of Appeals ..... .i _, -. 220

Exceptions and a decision essential to the review of a surrogate's

decree T. : . , 220

Exceptions essential — a general exception is insufficient 220

Exceptions to findings of a referee confirmed by the surrogate,

raise what question .„. .« 220

Right of a respondent to set up defects iU portiolis of the decree '

not appealed fi-om ■ 220

What questions are presented on appeal from a surrogate's
decree ,. .' . . 220

• '" , Index to Note's. 755

[See index to the rules, ante, page 709.]
CASE AN.D EXCEPTIONS— (Continued):

Surrogate's- Oourt — (Continued): ' pagk.

What the court will not assume 220

Error must be shown to cause prejudice 221

Vacating decree for fraud, when jiistified 221

,, Appeal from decree confirming a referee's report — on what heard 221

. ' -Appeal from order fixing appraiser's fees 221

'. Criminal c&se — expense of preparing the case. , . . . . 221

Arbitra'tors — appeal from the decision of arbitrators — upon what

papers heard ' 221

Settlement — before *hat judge — presumption that it was correct. 221

■ , St6nographei"s minutes to be' produced 222 '

Power of the trial judge to strike out evidence 222

Power of a justice to strike out exceptions from a case as filed. 222

Judge's - decision conclusive 222

Unless the denial of a- substantial right is apparent 222

When trial judge will not settle case 222

Case and g,mendments — • when legally settled 222

Omission of stenographer to note an exception — remedy 222

Omission in stenographer's minutes 222

Failure to settle a case 222

Failure to re-notice case for settlement, after .death of attorney

, .; — dismissal of appeal refused 222

' An appeal should n6t be dismissed for failure to -settle a case . . 223

Appeal not considered on a case not settled 223

Referee's certificate cannot be waived 223

/ ' Mandamus to compel settlement ', 223

Remedy — • by motion 223

; • Exceptions need not be signed oi- sealed by judge 223

A case in a criminal cause cannot be settled by stipulation ..'... 223

I Resettlement -^ motion, where to be made 223

Powet of court. to resettle case, not exercised to insert a memor-
andum of trial judge 224

Where exceptions should be noted in the record on resettlemeilt . 224
Order to recite that it was made on a private stenographer's

' minutes . , 224

Argumerit suspended to allow motion for resettlement 224

City Court of iNew York — power of its Special Term to order

resettlement 224

On motion for a new trial, the judge may amend the case 224

After decision of appeal, t^o late 224

After decision of General Term, and appeal to Court of Appeals. 224

Effect of not entering order made on motion for resettlement.. 224

Ap.peal from order denying a resettlement of a case 224

When an order denying a motion for it resettlement is ap-
pealable ■ 225

'V56 Index to ]*<^otes. • " ■

t
[See index to the rules, ante, page 709.]
CASE AND EXCEPTIONS— (Continued):

Resettlement — (Continued) : Page.

Appeal from order denying resettlement ; 225

Rule on review of an order denying a resettlement 225

Naiirati ve form ■ 225 '

, To insert argument of counsel . 225

Resettlement in a particular way, not ordered. 225

Ordered Qp account of aJbsence of papers. : !* 225

Recollection of judge ,...._ 225

Correction — power of jtidge to- correct his charge ' 22C

When appellant should be allowed to amend case as a matter of

favor .'............ 226

A 'jud.ge may correct a case after it has been filed 226

, Respondent not to serve a new case by way of amendment. . . . 226

Where no facts were found by trial court 226i

Omission of , referee's findings 226

Omission of referee's opinion — argument ^postponed 226

Defective case, when sent back for correction , . . , 226 ;

Where an exception by defendant puts upon the plaintiff the

responsibility of adding by amendment to the case. . 226

Errors, in the printed case disregarded — unless corrected on

motion . , 227

Correction is' the proper' remedy where different papers are , .

used on appeal '. , 22V

Jurisdiction of the Supreme Court over a case in the Court ot

.Appeals — pojver to make amendment to case 227

Appeal to Court of Appeals — power of Trial Term to amend • ■,

ca^e . . '. 227

Case not corrected byCourt of Appeals 227

Not for the purpose of reversing a judgment 227

Amending record pending an appeal to the Greneral Term —

Special Term cannot 227

At General Terr» — ■ not proper/. " 227

Case not corrected at General Term. 227

Amendment Ijy appellate court 228

Not to dbtain a reargumenf. 22S

Amendments by Appellate Division v - • 228

When a ease shotdd be sent back for amendn^ent. .' 22S

Of case after argument not allowed / '....;.. 228

Motion to amend is the prop'er r^etnedy when the return of the ,

court below does not include the judgment in extenso 228

Of case after final decision in Court of Appeals, not allowed.. . 228

, On motion for a new trial 228

After argument and decision ■: 228

When not allowed after decision of appeal at General Term . . 228

IlSTDEX TO ITOTES. ' ' ToY

[See index to the rules, ante, page 709.]

CASE AND EXCEPTIONS — (Continued) : ' ''

''Correction — (Continued): page.

Statement of facts under Code of Procedure, § 333 —, where

. . , . corrected . , , ._ ,. . . 228

Amendment to casfe, where the fact was in dispute. , ,.,. . 228

' • , ' ,- Amendment will not be made to show statement of counsel .... 229

,. / ,., Stenographer's, minutes — use of — disapproved 254

" " /, . , . -When they control' : .,:...'...... 254

How corrected . , " ,. '. , . • • ■ 254

Matter iiot appearing iu minutes ... A 254

C<)py of stenographer's minutes; when the amount paid for

1 them will not be allowed as a disbursement 254

When allowed as a disbursement 254

Stenographer's -minutes- in capital cases :.'... 255

; Acts and gestures of witnesses — not presented by case. 255

View of iBremises by a referee ^.t : . , . 255

" Failure tok serve (iase — practice on O-'-, ■•• 256

Appeal cannot be dismissed for 256

' Appeal not djismissed for failure to procure the settling and

signing of a case 250

Case not necessary for a review in all cases ."..., 250

Failure to settle case or order it qn' file., •. } 250

Failure to serve a case is not a mistake or defect iti perfect-
ing an appeal i :...... 250

^Motion to dismiss — what to be shown' on - '. . . . 250

Default — when opened . 257

Application should be made to the court from which the ap-

'peal is taken 257

What must be shown to open default 23"

Effect of a default in having a case signed and flled 257

Surety — liabili,ty of, where the appeal is dismissed 257

Time to make a case '. ■ ■ 257,

Failure to serve as to one defendant 257

Bill of exceptions -^ contents of . . ; : 2oS

^ Settlement of — the court above cannot determine what oc-
curred on' the trial ■ — mandamus .': 253

One exception on the same point, sufficient 250

Exceptions — to be clearly stated 259

An escaped prisoner cannot have a bill of exceptions settled. , . . 250

Settled, &t subsequent term — presumption. .' 259

' ' When -questions, of law only presented — insertion of all ^ the

■^- evidence is improper 259

INot sufficient ^ where evidence consists of acts. .>.... .' 259

,V . ', Separation of exceptions from the case 259

' ' ' Form of a "case and exceptions intepd'ed to review rulings upon
j ,, , testimony only '..... 259

758 Index to Notes. ' >

[See index to the rulea,> ante, page 709.]
CASE AND EXCEPtlONS— (Continued):

Bill of exceptions — (Continued): page.
Failure to reduce evidence to narrative form, precludes settle-
ment by trial judge 259

. Buty of attorney 260

Original papers must be filed 260

Extension of time to file case 260

Does not exteiid time to appeal . . ." 260

Failure to file case — remedy of respondent 260

Remedy of appellant 260

Excuses necessary to prevent dismissal of appeal 261

Default n procuring, signing and filing of case -- relief 261

, Power to -compel the filing of a ease after its, abandonment 261

Evidence — a case is prima facie evidence of the facts stated in it ... . 261
Dismissal of appeal — failure to procure settlement and signing of '

ease. , 261

Failure to re-notice case for settlement, after ' substitlition of at- ^^

torneys. . 261

Printed pa,pers 299

Omission of index — case stricken from calendar 305

See Appeal.
CERTIFICATE — Attached to case on appeal. ' See Case and Exceptiojs's.
CHANCERY RULEi — Respecting investments of moneys paid into court. 411
CHAJTGE — Of venue. See Venuts.

CITY COURT OF NEW YORK — Rules of 10

Justification of sureties on an attachment issued by . 59

CLERK — Destruction of records ^ 49

Duty of, respecting the entry of ' judgments 66

COMJIISSION — Of lunacy — costs of I.,. 416

Of receiver 448

CONDEMNATION PROCEEDINGS — EflFeet of — on mortgage 373

CONSTRUCTION — Of rules 10

Of amendments of rules 10

Given to statutes by rules 10

CONTEMPT — Action against receiver -. 442.

CONTESTED MOTIONS 291

CONVENIENCE — Of witnesses. See Ventje.

CONVENTION — Power of ". S

CONVERSION -Inspection denied, to establish 118

CORPORATION — Discovery of books of • • 115

'Service of process on '. 134

Entry of judgment against a dissolved corporation 166

Kew York statutes do not apply- to a mortgage, exeouted'by a for-
eign corporation 374

Receiver of 443

How far the 'title to real estate vests in the sequestrator 451

Index to Notes. , '^ 759

[See index to the rules, ante, page 109.]
' , ^ ' PAGIi.

COSTS — Of motion /..',;.! 284

Of special guardian 355

In surplus moiiey .proceedings : 404

Of executing a, commission of lunacy. 416

Commissions of receiver 448

Additional allowance of. See ALL0WA^•c•E.

COURT — Power of, to make rules 8

Power of, relative to discovery ; . . . . 97

Payment of money into court. See PaymenJ.

COUJRT OF APPEALS — Rules of, as to admission ot attorneys 7

General Rules of Practice followed by D

CRIME — Expense of preparing a case in a criminal court 221

DEED — Executed by special guardian of an infant 350

Form of referee's deed in foreclosure, 374

DEFAULT — Judgment on .\ 164

On motion 288

Judgment by — in matrimonial "actions '. 419

In serving ca,s© on appeal. See Case and Exceptions..
DEMURRER — Papers to be furjushed by party demurring.'. . . .". ....... 297

DEPOSITION — Application for the examination of a party — r what

must be*" sjiown 452

Affidavit for the examination. . . . i : . . ..> 454

Examination not ordered when, the witnesses privileged to refuse

to testify 454

Affidavit on information and belief 454

The affidavit should be made by the plaintiff 454

When it may be made by a third' person. 454

Existence of a cause of action 454

Materialit}'' to be shown ,. . 454

Order. not granted to enable a party tp ascertain testimony of'.

opponent's witnesses and procure their evidence • 434

Testimony to be used upon the trial 454

Express statement that the deposition will be used on the trial

is- unnecessary 455

What allegations in petition of Attorney-General are insufficient 455

"Order for exarnination served before the summons, bad. 455

Before issue ^ . . • 455

• Bill of discovery , . ; 455

Before suit brought 455

. . It must be a_ judge's order — ■ ex parte 455

' Scope of the examination 4^5

Questions tending to criminate '■ . . -^ 455

Party .examined is bound to answer all questions which relate
confessedly to the issues involved 456

760 ■ JJWfclnrDES TO KOTES

[See index to the rules, ante, page 709.]
DEPOSITION — (Continued) : . page.

Not allowed simply to show false representations '. . . 456

Not allowed simply to show a party guilty of a xirime 456

Names ;. 7 456

Complaint, — preparation of 456

When not allowed to enable the plaintiff to frame his complaint. 456
Not granted- to enable a party to learn his opponent's evidence . . 456
Not allowed to discover a cause of action against persons not

parties - 456

Not denied, because the party will be present at the trial 456

Examination before trial does not preclude an examination at

the trial '. , 456

Duty of judge where the papers in form are correct : . . . 457

Practice on a motion to vacate 457

( When granted i '. . . . . 457

Objection — must be by motion before trial 457

, Party — meaning of ' 457

Third person — examination of, to enable the complaint to be made

more definite and certain. 457

Books and papers — production of, on an examination before trial . . 457
y An examination of the adverse party and a discovery of his

books cannot both be had in one proeeedin'g. . .'! 451

. Discovery of books and papers is a proceeding independent of the
right to their productioli on the trial, or by a party examined

f before the trial 458

To annex document to commission to examine witness ■'..'..' 458

Exapiination of a machine imposed a's i, condition 458

Physical examination — examination of a plaintiff's person, not or-
dered 458

inspection of plaintiff's person, in an action for malpractice —

' ordered 458

Physical examination of female plaintiff 458

A non-resident plaintiff is bound to obey an order for her physi-
cal examination before trial , 459

Failure to serve- the order or pay witness fees 459

,;,,!,, Examination to determine the physical condition of an applicant

''■„ for the position of policeman 459

Affidavit to procure order for physical examination. 459

Depositions of physicians taken thereon. 459

Effect of persistent refusal to submit to 459

Personal service of order necessary / 459

Bad faith alone sufficient to defeat right. .' " 459

when refused 460

Appeal — to the Appellate Division 460

Penalty — striking out pleading 460

Index to jSTotes. 761

[.See index^to the rviles, ante, page 709.]

DEPOSITION— (Continued); page.

Cbutempt ! J •. : . . . : . ' 460

(S'i Code of Procedure, § 388 and § 391 — relate to, different subjects 460

• Supreme Court is the successor of the former Com-t of Chancery 460

Notice ^- to attorney of the party to be examined, 460

DISBARMENT — Of attorney . .' 36

What justifies ' '39

I What is not punishable by <. .r ...'., i 42

" Readjttissioh to practice . . w,.l 43

Eeview of : 43

DISCOVERY — Code of avil Procedure, §§ 80^-808, is a virtual re-enact-
ment' of the -Reivised Statutes. .. ^ .;.'.•.. 97

Power of court — to annex document to comriiission to examine wit-
ness ... ./ ). 97

A discovery can only be had uiider section 803, etc., of the Code. 97
The examination of parties' or prMuction of their books cannot
be conipelled under the provisions' of the Eevised Statutes as

to perpetuating testimony ■ .• ■ ■ • 97

The rules dio not unite the remedies for discovery under the Code

and the Revised Statutes ' •. ' 97

"An exaimination of the.adverse party and a discovery of his books

cannot both be had in one proceeding ■. : 97

Discovery of books and. papers, is a, proceeding independent o'f the

right to -fheir prodtiction on the trial, or by a party examined ■

, .before the trial 97

Order for inspection granted when contract provides for it 97

Action in equity will not lie . '. 98

Inspection of deed 98

Not a right — privilege given only in extreane; cases . . , : 9^

Esfamination of books denied where it would ihe a hardship 98

The manner is d.iscretionary with court 98

Where inspection' is in the discretion of the Special Term 98

Surrogate — 'powers of 98

Pojocedure — proper procedure to obtain inspection 98

DisBbvery of corporate' books — compelled by m,anidam.us 98

Practice in • proceedings for prcduction of books and pajpers 98

Requisites of petition for discovery. \. 99

Service of motion, papers ......; 99

If the discovery is insufficient or defective, an order to show

caAise is, proper ( .' 99

For what purpose an inspection can be had 99

To frame a complaint — ■ granted ,.. 99

Inspection granted to enable plaintiff to amend complaint 99

« : When not graJited 99

To frame an answer, denied. 99

762 Index to Ncjtes.

[See index to the rules, ante,^page 709.]
DISCOVERY— (Continued): , , ' '

Procedure^ (Continued) : pagb.

Not a,llawed after seryice of an amended complaint and before

joining- a new issue jqo

Must be afte^ suit brought. lOo '

When discovery not ordered before -complaint filed ^ 100

TOiat petition must. show., .:...., 100

Subpoena duces tecum '— discovery granted when subpoena dtices

tecum is insufficient '. , loo

A party under exaonination before trial — not required to pro-
duce paper on subpoena 'dMces tecum 100

A party examined before trial, may he requir-ed! by subpoena

duces tecum to produce books, etc. . . . / ■. 100

No discovery- where a subpoena duites tecum will suffice. ;, 100

Kemedy by subpoena duces tecum. . .:...., V. 100

When subpoena duces teeum insufficient. .....' ' . . , . 101

That a paper may be produced on the trial by subpoena duces

tecum is not' conclusive V . . ^. . .' '. 101 '

ijj'ames — discovery, not allowed' -to ascertain ' 101 -

Books — exaimination' of s with ulterior purpose 101

Laches — discovery, not granted where there is a want of due dili-
gence ' .'; 101

Delay in moving. ,.....,. 101

Eeferee — power will not be delegated to 101

■Certificate of a referee .^ ...,..."... 101

Affidavit or petition — application not denied, because made by motion

instead of on petition '. . 101

Verification by attorney and not by party ■. — no affidavit of merits

— insufficient . . . •.......;....._. • . • • ■ 102

Application by affidavit — ■ it need not be made by the party —

contents . . . ' 102

Where the facts are peculiarly within the attorney's knowledge. . 102

The allegations must be definjte and positive 102

Must be specific and) positive ; .....:..... 102

Petition not sufficiently explicit. ;.....'-'." 103

liispeotion' refused! because! petition was not explicit. .' 103

On application to establish a partnership — motion denied be-
cause of the indefinite nature of the affidavit.^ ICfe

An affidavit, on information and belief,, is not sufficient 103

jVfere information and l)elief as to entries beiiig in existenoe,^i9

\ ins-ufficient . . . ;....'..... , . . . . 103

Advice and belief . , .^ 103

Tlie facts must be stated 103

Affidavit, on inform-ation and belief, when suffic^ient J 104

The papers should be specifically set fortli.'.'.j 104

Requirements as to the reriflcfition to the petition 104

■'Index to Notes. . 763

[See index to. the rules, ante, page 709.] ' : .

>ISCO VERY — (Continued) : ■ '' ,. , ' « "^ ■ P4.G-E.

■ It milSt be' necessary —; -wlien the necessity does not exist. .......... 104

* When,tke witness can be required to produce books. .' 104

Necessity therefor, must be shown'. .;.'.;, "... 104

Not allowed when olher relief exists .',-. . . '. 104-

Application denied when the paper* could be produced, on, an ex-

. amin'ation befoTe. trial A ..... i , . . .' 104

The applicant must show that he cannot obtain the information

elsewhere , '...,;.;.., ■. . 105

Information obtainable by evidence of witness 105

Not allowed to see if, any .defense exists 103

When defendant's fight not dejfeated. • . . . 105

Inspection, when denied, to establish payment . . 10.5 ■

The e^dence.must be material. ;'....., .' ; . . . 105

Sealing ivp immaterial matter — right of a party producing books,

. etc.,' to seal up portions thereof >.....,. 105

An affidavit that certain 'sealed portions of a book do not relate

to' the case is sufficient to protect them- from examination.. 106

Proper procedure to cause sealed portions of the books to be

opened ._- ..'.,.; ..:.].•..• -, 106

Whait d'ocTiiments — what documents parties "will be compelled to j>ro-

duce' . .....J....... . .• ' 106

Of a plan, in anr action for breach of contract. . i 106

Of a duplicate contract , 106

A defendant 'in an action to foreclose a mortgage entitled to

inspect it and have it photographed ..:...: 106

Inspection of instrument songht to be set aside as a forgery al-
lotted ,. .' ; : . . 160

'Letters — production of, compelled , ■ 106

Letters and letter-J>ress, copies are papers And (foeuments 107

Letter in an executor's hands '. '. 107

Original letters deceived .J)y plaintiff's intestaie .> . .■ '.'...... l07

Exaainaition of a machine imposed as a condition ' 107

-Booka and ^l^^^i^^^nts -^to enable defendant to prepare a counter-
claim . . . '. • . . : 107

That books contain false entries is no answer to an application . . 107

Compelling production of accounts 107

Books of a domestic corporation. . . . , i' 107

Of Ijoundary line ajid m:onum.ent. •. . .■ 108

,In an action to set aside a preferential assignment 108

Assessment roll and warrant, when they must be dt>i'osited for

.plaintiff's inspection '. 108

Deposit of a note -. 108

■D&po'sitof bank books, ^etc. ..'.... ...■...'. a 108

Inspection of. g:ood'S replevined'. ..... .^ ....... , 108

764 Index- to' Note's.'

[See index to the rules, ,nrefe, page 709-]

DISCOVERY— (.Continued): X,- " page. '•

When denied — inspection of letters denied '. lOS'

Proof as to the existence, of the books . ' » lift

' Denial of possession of books '. 108'/

Order denying an attachment when a part only of the books are '

produced — hot appeajahle — proper remedy 109

Inspection not allowed', where the books could be produced on the ,

trial by subpoena, duces tecum. . . . . ., ■.•:• 109

Where the books of a physician contain confidential statements

of his patients. :•.';. .' ; 109

Fishing excursion — > discovery of books .'. '. / . ......... 109

, Articles, when not submitted to the inspection of experts 109

, Inspection to determine value of bookkeeper's, services 109 ■

. Not allowed where there is a denial of possession of papers. . . . .- 109

.When defendants should explain lost control or possession 109

Discovery denie\i' because {)apers were not in . defendant's pos-
session . . . . . . ! \ ' 110,

Not .granted pending motion for reargument of an app'eal from-

,. ., 1 . an order denying it ■. . _..-.... ^ . .i. . . . . . . 110

■'.'i,;"^ Suspicious applications — denied kj;'. ..■......;.. ...i •'•■-■* 119

' ' ' Reference ordered ajter denial, of discovery, improper......../. HO-

Denial after an examination of §. party before trial 110

Order made su^jject to the .party's riglit to a^ply^to be re-
lieved therefrom ' . 1 10

Discovery and inspection not, allowed in an action f or, -libel. .. . Ill
Not granted for the purpose of ascertaining' the names of

-' proper parties ' Ill

" First department^ — practice in . , '. ■ 111

Production of books and papers only required to aid the party

in presenting his bwa' case. . .-. ' -r . .^ Ill

Motion by one defendant to compel another defendant 'to pro-
duce documents . '. '. Ill

Discovery of papers not proper to 'enable the plaintiff , to ascer-
tain the defendant's'' defense Ill

Suit in equity for an accounting..'. Ill

Description of document — documents must be described. .....!..-.. Ill

What description of the document is required. . . . . : ,. ,119

The particular books and papers must be specified and their

materiality shown .' ^ '... ...... 112

When' granted — that a discovery might -criminate defendan,t is no

answer , '. ,.......,•;.. 112

The excuse that the discovery will criminate is a personal one —

bar of the Statute of Limitations _.'_;- ': 112 -^

To frame pleadings ,...-....,'...: .■.-'. V 112

Examination of the books by an expert. ....... .; ./. 112 '

When inspection allowed in doubtful cases T 112

' ' ' Index to ISTotes. 105

[See index to the rules, anle, page 700/
DISCOVERY — (Continued) :

- !,Wlien granted — (Continued): .pace.

Existehce of cause of action, not determined on affidavits 112

. Defect in moving papers supplied' by the answering affidavits. 112

iPacts requiring the granting of an order. 113

Material evidence in documents in possession of adversary 113

When it may he had in cases not provided for in rule 113

Libelous paper , , . 113

, ■■' Form of order — direction to deposit a paper fbr thirty days, or
that all defenses be precluded, and that the party'be' punished

for coijitempt, is .erroneous *. 113

When an order is improper as being too general 114 -j

Wlien it is improper as being too limited.. , .' 114 :

Books" particularized in the order ; ; 114

Order made by the court and not by a judge 114 '

Inspection not limited to the particular entry set forth in the

moving papers ...■; .-. . . 114

Expense of copies, by- whom paid; 1 114

Proper order in , such case ' 114

Fof»;i of order j 114,

Inspection of picture not permitted 114

• Service of order — order of discovery to be served on the attorney,

and not the iparty 114

Sheriff — not directed to break open a safe, but party ordered to

open it 114

Parties — the representatives of a, party can have no greater riglits

than the decease'd had ......'....■ ' . . 115

A discovery from an administrator of the papers of liis intestate

— when allowed 115

To what accounts, rendered by her depeased, an administratrix

is entitled ,. , , 116 '

A guardi3,n ad litem may petition for discovery llo

Corporation — .books of — since remedy by subpoena under Code of

Civil Procedure, inspection not allowed 11.5

Agents of corporation will not be compelled to discover its

books ! 113

Corporate books — directors 115

Examination of officers and agents of a corporation — distino- '

tion . ., . . . .' ; 115

Examination of the, president of a joint stock association be- •

. fore trial ■. ! 116

Production of corporate books and papers required..: ;. 110

Corporate books and papers — how far, subject to inspection.. 116

,Transfer of books of corporation 116

Foreign corporation — order for the inspection of its boqks — what
' :' it should require ...... • , . 110

766^ ^ ^NDEx TO Notes.

[See index to the rules, ante, page Y09.]
DISCOVERY — (Continued) :

Porei'gn corporation — (Continued) : - page.

Transfer agents of — chapter 165 of 1842 — application of, to. 116

Sworn copies of books of a foreign corporation 116

Partnership books — an absolute right thereto 116

"Administrator of a deceased partner, is entitled to an inspec-
tion of -. 116

When a partner is not entitled to a general inspection thereof. 117

Inspection of books iby one sharing in the profits ; . 117

^ Examination by an expert 117

Kenjedy by subpoena duces tecum does not forbid.' 117

' Of firm account books — ■ when allowed 117

Partner's application to inspect books 117

JJooks of record, of a common venture 117

Inspection of firm books ." 117

Agency — a principal entitled to an inspection of his broker's books. 117

Inspection of books to estalblish an agency. . . /. 118

Conversion — inspection allowed to establish 118

Penalty — for a refusal to obey the order, should not be contained

in it -. 118y

Disobedience — recital of the penalty for 118

How punished '......... '. 118

Applies to a contiUnacious refusal only ; 118

Notice — musj; be given 118

Appeal — the order affects a substantial right 119

Not reviewable in the Court of Appeals 119

■\\1ien an order denying an attachment against a party refusing

to make a discovery is not appealable. . , 119

Oppressive order — remedy _....'. 119

When an order for discovery will notbe reversed on appeal 119

Order. refusing a discovery of partnership books reversed 119

Physical examination of plaintiff in action for personal injuries . . 119
DIVORCE — See Husband and Wife.

JDOCKET — Of judgment .*...'....:. 68

DOCUMENT — Inspection of. See -Discjovert.

DOWER — Effect of divorce on -. . . !...... . .'427

Computation of contingent dower right 414

EMINENT DOMAIN — Effect of condemnation proceedings on mortgage. 373

ENDORSEMENT — Myst be on the copy as well as on the original 48

Essential on notice to limit time to appeal .' 43

Concealed indorsement ...■.......,.- 48

The omission to indorse does not vitiate the paper — it is merely

an irregularity . . ■. v 4S

What is a sufficient indorSejnfent. . '. -. . . . 48

Admission of due and proper service ^v waives the defect of omit-
ting the adctress of the attorney ■ 49

Of approval of sufficiency of undertaking •; 59

Index to Notes. ' ' Y67.

[See index to the rules, atite, page 709.]

PAGE.

ENUMERATED MOTIONS 290

EVIDENCE — Reference — signftig testimony given thereon 183

Filing testimony given on 183

"Received on appeal ' 252

Certificate that a case contains all the evidence. See Case and
Exceptions.
EXAMINATION — Before trial; See Deposition.
EXCEPTIONS — Bill of. See Case and Exceptions.
Taken on a trial. See Teial.

EXCISE LAW — Venue of action brought- thereunder. . .' 331

EXECUTION — Return of 61

Correction of return . ., 63

Excuse for not returning -. 63

Presumption that vrrit was execute"d during its lifetipie 63

May issue to collect alimony .' 166

EXTENSION — Of time to serve case 260

Of time to serve pleadings. See Pleading.

PEES — Of referee ."^ 182

Of receiver 448

See Costs.
FEIGNED ISSUES. See Tbial.

PILING — What is 46

Who may file a paper 46

Where a motion is made out of court on notice ; . . . 46

Motion after judgment — ; papers, where filed , ^.. . . . . . 46

Judgment on appeal — papers, where to be filed 47

How compelled 47

Costs allowed on a, motion to compel 47

Presumption as to filing, as regards notice of lis pendens 47

Records delivered to clerk before nine, presumed to be filed at

nine ; 47

Mling judgments and .issuipg executions thereon out of office

hours 47

Notice of filing — when nqt necessary 47

■ Entry of Judge's order not necessary , 47

Entering and filing distinguished 47

Failure to file — ■ effect of .■ 47

Rights, of the unsuccessful party 47

Injunction dissolved when papers were not filed 47

An attachment not vacated, because of a failure to file the papers . 48

Leave to file after the time — power of the court to permit it 48

An answer may be inserted, in the judgment roll, after the roll

has been filed 48

Filing papers mine pro tunc 48

Meaning of " resided " in section 984 of Code 49

Compulsory — how filing may be compelled 49

768 Index to Notes.

[See index to the rules, ante, page 709.]

FILING — (Continued) : page.

Destruction of records — power to destwiy records only exercised in

exceptional cases 49

Business hours of county clerks .\ 66

FINDINGS — On a trial. See Tbial.

FIRST 'PISTRICT -^ Procedure in, as, to the filing and confirmation of

reports 183

FOLIO — Failure to folio papers .s 143

FORECLOSURE ^ Of mortgage. See Mobtgaoe Foeeclosuee.

FOREIGN CORPORATION — Discovery of books of 116

New York statutes do not apply to mortgage executed by 374

As to service of process on . r. 137-

GAME LAW — Venue of action brought thereunder 331

GUARDIAN AD LITEM — Guardian ad litem for plaintiflF need not be

his general guardian 335

Appointment in violation of the rule 335

Infant married woman 335

Guardian nominated by adverse party will be remijved — power to

appoint for ' non-resident infant 335

Irregularity in appointment of guardian ad litem 385

When irregularity in appointment of guardian will relieve pur-

) chaser under a judgment in partition 335

When appointment ia necessary '. 335

Who to be appointed 335

Appointment vacated ^ ~ 335

Guardian must be of full age 336

Guardian, who has appeared, must answer 336

Removal of 336

Cannot settle an action 336

Allowance of costs lo ' . , . 336

An allowance to a guardian on an ecc parte application — improper 336
Power of the court to provide for the compensatidn of a special

guardian. ." ■. 336

Right of guardian to recover compensation from the father 336

Disiburaements of a brother appointed guardian ad litem before

appointment 336

Where no guardian has been appointed the complaint should be

jjismissed , 336

Failure to appoint a guardian in proceedings for the sale of land

to pay debts does not deprive the court of jurisdiction. . 337

Failure to appoint a guardian for an infant plaintiff in an action

does not deprive the court of jurisdiction of the action- 337

For an infant defendant is an irregularity necessitating reversal . . 337
Infant regularly represented is concluded like any other party.. 337

' ' Indes to Notes. < 769'

[See index to the rules, ante, page 709.]
GUARDIAN AD LITEM— (Continued): ' pagk.
Infant who contests a will by guardian does not forfeit her in-
terest un(ier the will 337

Clerk of court nixist give security as guardian. . .'. 337

Guardian cannot enforce money judgment until security is given. 33T

liable for costs :■:...:' ; 337

Guardian ad litem, for defendant is not 33®

Waiver of right to security for costs :..... 33S

Attachment for costs ; 338

liability of a plaintiff for the costs and disbursements of a guard-
ian ad litem '. 338

Punished 338

For an infant beneficiary of a trust residing in New Jersey 338

Purchase by a 'guardian ad litem of an infant's interest in prop-
erty — presumption against its fairness 338

Who may apply for the appointment '. 338".

Petition for appointment of a guardia,n, addressed to county judge,
but entitled and entered as an order of the County Court. . . . 33? ■

Aj)plieation for appointment made too soon 338 ■

Only after service of summons , 339'

Otherwise in an action for partition 339 '

Waiver of defects of service by a guardian ad litem 33&'

Effect of the infant's arriving at full age pending the suit.... 339'

Compensation of .' 339

Who should bring action 339

GUARDIAN AND WARD — Who entitled to guardianship. 341

Eight of a surviving parent to nominate a guardian by will or

deed 341

Trust company appointed where both parents are dead . . . ., 341

A non-resident alien cannot be general guardian 341

For a non-resident . , 341

What to be stated in the application 341

Powers of Surrogates' -Courts over 341

Appointment of, in Surrogate's Court — when notice unnecessary . 342'

As to the surrogate's powers 342

Bemoval of guardian — surrogate may compel account 342

When the appointment will be reversed 342

Jurisdiction of the Supreme Court over minors 342

Powei-s of Supreme Court over 342

When appointment may be revoked 342

Proceeding by petition 342

Removal of guardian 342

Right to employ counsel 342

liability of Sureties on a bond of a general guardian 343

*70 Index to IsTotes.

[See index to the rules, ante, page 709.]
GUARDIAN AND WARD — (Continued) : page.

\^^len and in whose name suit should be brought against the

sureties : _ _ _ 343

Surrogate's decree conclusive against a guardian's sureties 343

Liability of sureties , where a guardian has misappropriated funds. 343
Siu-eties liable for costs awarded against guardian' by the surro-
gate 343

Allowance to guardian for necessaries furnished by him. before hia

' ajipointment • 343

Guardian to apply only income to his ward's support 343

Purchase by a guardian of his ward's lands: 343

Purchase of a ward's property by a guardian at a, foreclosure sale. 344
Guardian has no authority to carry on business in the name of

his ward 344

Real estate purchased by a guardian under an order of the surro-
gate 344

A surrdgate cannot authorize such purchase 344

Election by a sole legatee of the infant to accept the land 344

Purchase by a guardian in socage 344

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

rent collected from premises ownefd in part by his ward 344

Right of infant to be brought up in religious faith of farther .... 344

Right of mother 344

Father of infant preferred 345

Rights of mother of infant , 345

Accounting 345

GJompensation ^ 343

Powers of guardian to impose restrictions upon ward's pi-operty. . 345
Negligence — what is not culpable negligence in a genei-al guard-

' ' ian. . . ; 345

Trust companies — appointment of, as guardian 347

Liability of sureties of general guardian 347

Sureties — ■ on bond, of special guardian .\ 354

Money arising from sale — when paid to guardian 356

HUSBAND AND WIFE — Service on husband for wife 134

Default in matrimonial actions — the rule applies only to cases of

default. . . • 419

What need not be proven on default 419

Jurisdiction of matrimonial actions — dependent on the statute j^ 419

After the dissolution of a marriage no action for divorce will lie. 420

Wliat facts sufficient to show residence in this State 420

Joinder — actions for divorce and for separation cannot be joined .... 420

Contracts — agreement by n husband to support his wife living apart. 420

Agreement by a wife to share her alimonj'- with her attorney. . . 420

Agreement to live apart as a. consideration for a note. . . : 420

Agreement to renew marital relations — effect of its breach .... 420

Index to Notes. ^ T71

[See index io the rules, ante, page 709.]

HUSBAND AND WIFE — (Continued) :

Contracts-^, ('Continued )i -■ PAOB;

The husband is liable for legal services rendered thd wife in an '

action brouglit by the wife for a. 'separation , . . 420

Keturn to husband under his agreement to pay costs and ex-
penses : 421

Maintenance — decree for separation essential to one for mayitenarice 421

Adultery ^ what averments as to the adultery are sufficient . 421

Allegations as to time and .place of adultery 421

How adultery should be charged 42f

How set .up in answer , 421

What allegations sufficient 421

Adultery of plaintiff connived at by defendant, no defense 421

What does not constitute a procurement or connivance" ......... 421

Decision sustaining finding of adultery not binding on the Court

of Appeals 422

Finding of jury upon the question of connivance not in issue . . . 422

How connivance should be negatived 422

Judgment on finding of adultery in the absence of an afhrmative

~ defense 422

Verdict upon issue of adultery is conclusive ■ 422

Adultery of plaintiff ^ — a defense and ground of affirmative relief 42S

Practice where affirmative defenses are tried in equity 422

What evidence is required to establish it 422

Counterclaim for annulment of the marriage — not good '422

Reference in divorce — proper form of order 422

Aflfidavit and proof as to connivance, and that five years have not

elapsed '. 42.3

Proceedings void, if parties agree upon referee 423

Reference consented to — court to name referee. 423

Naming a referee ill the stipulation 423

When the cdurt cannot appoint another referee in place of the

one agreed upon 423

Review of evidence on a referee's report by the judge '. 423

Court cannot set aside a referee's report and Order issues to be

tried at Circuit 423

It can be reviewed only by the General Term 424

Court cannot consider the evidence where the decision is against

the divorce ; 424

V Power of the Special Term over the report of a, referee in an

action for divorce , 424

Trial of divorce suit — how conducted 424

' How case noticed for trial _. 424

Issues must be settled, before notice of trial 425

Issues, only to embrace facts oontesteji by the pleadings 425

772 Index to Notes.

.£

[See index to the rules, ante, page 709.]
HUSBAND AND WIFE— (Continued):

Trial of divorce suit — ^(Continued): page.

What issiie improper 425

Right of third party charged, to attend, examine witnesses, etc. 425

Co-respondents may be served and appear ^5

Jury trial — of divorce suits — either party is entitled to demand a

jury trial 425

It is a matter of right 425

; It is not discretionary 425

,: Finding of the jury — when conclusive 425

^ Rejecting verdict : 425

' When the court may correct the wording of the verdict 425

Where the jury disagree as to some .and agree as to one of the

; issues .^ 425

The coiistitutional right overrides the Rules 426

Waiver — as to issUes 426

Waiver of jury trial, 426

Notice for an equity term, ndt a waiver of a jury trial 426

Appeal — in action for divorce — what reviewable thereon — failure

to move for a new trial. 426

Condonation of adultery — it should be pleaded 426

Evidence — in an actipn for divorce on the ground of adultery. ..... 426

A husband cannot testify to his wife's adultery 426

Evidence of husband for his wife 427

The evidence of prostitutes must be corroborated 427

Evidence sufficient to establish the fact of adultery 427

Dower — when a foreign absolute divorce will not bar dower 427

Effect of divorce on dower ,. 427

Judgment in matrimonial actions — forbidding guilty wife to uae her

husband's name 427

i Awarding the custody of minor children is discretionary. 427

Foreign judgment of divorce obtained on service by publication
• — -effect of a general appearance on a motion for alimony.... 427

Foreign judgment awarding custody of children — effect of 428

Effect of a foreign judgment for divorce where' service is made

by mail I 428

Special Term not to vacate, add to or subtract from the referee's

decision in divorce . . -, - , 428

Rule as to judgments, has force of statute 432

On consent of defendant prohibited '. 432

Vacation of judgment in matrimonial actions — proof required for

' the vacation of a judgment 428

Motion to set aside for fraud — proper practice — affidavit of de-
fendant competent ' 428

Default in payment of alimony — laches 428

' Index to Notes. TT3.

[See index to the rules, ante, page 709.]

HUSBAND AND WIFE— (Continued):

Vacation of judgment in- matrimonial actions — (Oontinued) : ' PApE.

Remarriage not conclusive on a motion to open a default 428

Remarriage — out of this State — after divorce in this State for-
bidding it 428

Alimony — income of a trust fund may be reached under a judgment

for alimony ; 428

Decision as to alimony and counsel fees cannot be reversed until

final judgment 428

Reservation in the decree of the right to apply for alimony 429

Enforcement of a foreign judgment for alimony — by execution. 429

Failure to pay alimony not excused by poverty 429

Proceedings to compel payment of alimony 429

Cannot be enforced after death of husband 429

Alimony cannot be awaWed in an action to annul a marriage . , . 429
Separation — action for, brought by wife — return of the wife to the '

husband terminates it , 429

Action to annul marriage , '. . . 430

ILLEGIBILITY — Of motion papers 143

INCOMPETENT — Sale, etc., of incompetent's real estate 348

INDEFINITE MATTER — Motion to make definite and certain.. 152

INDE^ — Omission of, from case on appeal 305

INDORSEMENT. See Endoesbment.

INFANT — Sale, etc., of inf ailt's real estate — power of court 348

A mortgage given to pay the debt of another — the court is

without jurisdiction to order it 348

Power of the Legislature to order a sale of infant's land...*... 348
Power of the court over' the proceedings — ^continuous during

minority 348

Powers of guardian 348

Sale contrary to the stat^te — void ., 348

Non-compliance with the rule — doe's iiot invalidate the sale .... 348

Possession in fact or law — not necessary to authorize 349

Of equitable estates 349

Expectant estates and estates in remainder 349

Contingent interest of an infant cannot be sold under the statute 349

Estate of infant trustees 349

Application for sale of infant's real estate — by whom made 349 1

Corroborating affidavits and petition by general guardian — may

be dispensed with > 349

Infant need not join in petition 349

Form of petition 349

WJien irregular 350

It should be addressed to the "Supreme Court of the State of

New York" 350

Where made ' 350

774 Index to Notes.

[See index to the rules, ante, page 709.]
INFANT— (C^ontinuedy) page.

Bond — of guardian to sell infant's real estate 350

Sale to pay debts — special guaSdian cannot dispute such debts... 350
Order — form of, in proceedings to pay debts 350

- Deposit without delivering to the depository a copy order direct-

ing it , 350

Deed — may be executed by a special guardiSin in his name as spe-
cial guardian 350

County Court — always open, for proceedings for sale 350

Lease — powers of a Court of Chancery to lease an infant's real

estate 351

- Allowance to a guardian for expenses — suing as a poor person. 351
Mortgaging infant's real estate — powers of the court relating

-thereto, etc. 351

Use and income of property given to executors in trust until in-
fants become of age — the remainder vests and may be mort-

,, gaged 351

' When a mortgage, including the interests of infants, need not

state their proportionate liability 351

• Mere irregularities in proceedings to mortgage are not ground

-for setting the mortgage aside. 351

Exchanging and ' riiortgaging infant's property — powers of County

Court relating tbereto 35a

Eef erence — when unnecessary .' 353

Sureties — justiflcation of 353

■ Unauthorized- act of a guardian for which his sureties are not

- -liable . . . : 354

Upon a, guardian's bond, not discharged by a judgment fraudu-
lently obtained ■■. 354

Laches 354

Costs — ■ when allowed in excess of twenty-five dollars 355

In proceedings to compel a special guardian appointed to sell the

real estate of an infant to pay over the proceeds 355

Investment — ■ in land beyond the jurisdiction of the court — order

directing it is void 355

'Guardian of. See GtiASDiAN asd Ward.

INJUNCTION — Failure to file papers — relief granted 53

Failure to state the grounds of injunction 94

Order confirming the report of referee as to damages for injunction . . 1S3

INQUEST —Not applicable to equity actions 158

Appearance by defendant, though no aflSdavit filed 167

Trial — before the court 117

Plaintiff must prove his case, if there be an answer......... 167

Defendant may examine plaintiff's witnesses 167

Counterclaim not replied to must' be allowed 167

Inquest not proper after discharge of the jury 167

' Index to JS'otes. ' 775

^ [See index to the rules, ante, page 709.]

INQUEST — (Continued) : page.

When set aside — because of unexpected absence 107

l^eview — how obtained -^ judgment taken on an inquest must be

reviewed by motion and not by appeal. . . . / 167

iServiee of affidavit of merits — before first day of term 107

On second day '. 168

Verified pleading — no inquest 168

Equity cases, rule not applicable to ' 168

INQUISITION DE INQUIRENDO — Costs of 116

INSANE. 'See Lunatic.

INSPECTION. See Discovery. • , i .

INVESTMENT — Of proceeds of sale of infant's real estate 355

Of moneys paid into court 411

IRREGULARITY — In service of process.' 130

, In copies of papers. .;.... , ; .■ 147,

Motion based on i 275

In judicial sale ; . . . ; 385

IRRELEVANT MATTER — Motion to strike out 148

ISSUE — Note of. , 'See Tkial.
learned issues. See Trial.

JUDGE — Who may not sit in i;eview . . . j . . 9

JUDGMENT — Authority to enter judgment . .' 66

Signing and recording judgments — judgment book 66

Omission of the clerk to sign a judgment 66

Service of a copy of a judgment without the attestation of the

clerk is effective to limit the time to appeal 66

Judgment can only be entered according to the decision rendered. 66.

How far it is necessary to enroll a decree 67

What constitutes ; . . 67

What is not a judgment 67

The entry made by the clerk on receiving a verdict is not the

judgment. . . ^67,

The record constitutes the judgment in common-law actions . . . . ' 67

Judgment ' book and docliet distinguished. . .■ , .' , 67

Entry of judgment on a verdict 67

I>uty of clerk as to its entry in the judgment book 67

Judgment not perfected until entered in the .judgment -book. ... 67

Only one decision proper on several demurrers 68

Delay of the clerk in entering a decree in the judgment book does

not affect ita validity ., 68

Delay of a clerk to enter a, judgment of which he has given a

, transcript 68

Proper judgment where plaintiff recovers less than $50 and defend-
ant recovers costs 08

Decree, date of • 68

776 ' Indsx to Notes.

[See index to the rules, ante, page 709.]
JUDGMENT — ( Continued ) : page.

Motion in arrest of judgment must be for defects appearing on the

record ^ 68

Duty of clerk as to judgment roll .• 68

Time for entry ' -.'..... 68

Entry nunc pro tunc 68

Docket — when a decree in equity should go on the docket 68

Sufficient to sustain an execution, though no entry is, made in the

judgment book' ........' 69

In county clerk's office, of judgment of United States Court 69

Lien — docket, unnecessary except to .create a lien 69

When the lien attaches 6d

Failure to index a judginent avoids the lien 69

Wl^en the judginent is filed. with the clerk out of office hours. ... C9

Lien suspended on appeal and restored 69

Continuance of lien ! ^ 69

Duration of lien • ■ • ■, 69

Judgment against executors — what is bound by 69

, - Iiost judgment roll — presunLption as to 68

Errors — amendment of , .' 69

■Failure to folio a judgment is omerely an irregularity 143

Default — ^ practice where only part of the defendaotits are in default. . 164

What notice is suffiteient to justify entry of judgment 164

What notice is insufficient 165

Judgment on defaiilt — liot more favorable than asked for. ..... 165

A report must be made and filed on a reference 165

Order of default — not necessary ■ 165

Proper form of notice of assessment of damages '. 165

Application when, pjoper at Trial Term ; . . . 165

When time to answer is extended 165

In general . ■ 165

Ejatry of, in special proceeding »-. 166

~ Jn foreclosure 364

Deficiency judgment in foreclosure '. '. ' 374

On default in matrimonial actions '. 419

In matrimonial actions " ^. . . 427

Vacation of judgment in matrimonial actions 428

JUDICIAL SALE — Sale, etc., of real estate of infant or incompetent . . . 348

Publication — time of 378

When sufficient 378

Week defined .-t . 378

' . ' Natiee of sale — need not ibe published in all the editions of the

' ' paper ■ .'. 378

Notice of sale 378

The title of the cause should be briefly stated in the, notice. . . . . 378

Amendment of judgment pending notice of sale 378

What publication is a newspaper. ' 378

Index to Notes. 777

[See index to the rules, ante, page 709.]
JUDICIAL SALE— (Continued): page.

iSale — relative rights of purchasers 379

What title' is acquired by the purchaser 379

Codte of Civil Procedure, § 1440, not applicable, when 379

Duty to collect purchase price fit time of sale 37?^

Incumbrances — leasehold' property 379

Rule applies to plaintiffs, mortgagees in possession 379

Error in notice of sale ' 379

Who may object to the manner of oonducti,ng a sale 379

When set aside 379

Opening sale discretionary ^- not appealable , 379

Order setting aside sale and directing reference to ascertain

equities of parties 379

When property should be sold as a whole 380

Position of an auctioneer 380

Dispos.itiou of the percentage paid on a sale where the pur-
chaser defaults after assigning his bid 380

Judgement ' directing' sale by receiver — remedy is by motion 380

Terms of — purchaser bound by. ..'..., 380

Inverse order of alienation — right to a sale in 380

Limitation of the rule 380

Primary liability of land conveyed subject to the mortgage 380

. Successive mortgages 381

Of land out of the State 381

Rule one of equity only 381

Where surety and: principal own separate, undivided shares. ..... 381

Safe valid although the pieces are sold in am improper order. . . . 381

Uotiee — purchaser chargeable wiiJi notice of existing conditions... 381
Assignment — when notice thereof to the mortgagor is unneces-
sary '. 381

Misdescription of an agreement in. notice of sale 381

Irregularities appearing on the face of the proceedings 381

Outstanding interests not referred to in judgment, but subject to
which the sale is made, afford no ground for refusing to com-

f plete the purchase 382

Mortgagee purchasing with notice of an unrccordedi deed ^^^ f

Resale — must readvertise for 382

Resale discretionary — conditions -of 382

Not reviewable in the Court of Appeals 382

When ordered 382

Terms of such resale 382

Condlitions imposed on granting a resale 383

Resale ordered where a promised notice was not given 383

Sale under railroad mortgage not affected by the fraudulent de^

fault of the directors i 383

TVS Index to Notes.

[See index to the rules, ante, page 709.]
JUDICIAL SALE — (Continued) :

Resale — (Continued): ' PAGE.

Inadequacy of price, not a sufficient ground 383

When ordered for inadequacy of price , 383

Not ordered merely because a higher price is anticipated 383

Inadiequafty of price and insanity of mortgagee not a ground for

a resale 383

When sale Under execution will be set aside for inadequacy of

price 384

Inadequacy of price 384

. , What constitutes laohes a.nd. insufficient ground 384

Resale ordered where facts exist, casting suspicion on the sale

had 384

An agreement to bid for another, when violated, is a ground for. 384

Mistake of purchaser, justifying '. ; ._ 384

Sale in parcels ,. 384

"Difference and costs and expenses on the resale" — subsequent

taxes included within i 385

Foreclosure of a railroad mortgage — when a sale, "had under a

decree in, will no't be set aside . . . : 385

Irregular sale — who may move to set it aside 385

Sale of corporate property not set aside on behalf of a minority

stockholder 885

Saie void, when summons was served by pviblication and no prop-
erty was atta,ched 385

.Broper form of execution where an attachment has issued. . . .'. . . 385
Insolvent corporation — sale of its assets without notice to the

Attorney-General 385

Irregular appointment of a. referee to sell docs not vitiate the

sale ' - 386

Order of confittnation cures the omission of " a portion of the "

land from advertisement t>t sale ., 386

Partition suit irregularly brought by the life' tenant — the title

acquired good 386

Partition sale — purchase by a guardian in his own name 386

! Who may attack an irregular sale < 386

Adjournment — the attorney can postpone a sale ....'...,...., 386

Sale in violation of a referee's promise to adjourn it 386

Stay of proceedings — effect of 387

Auctioneer's fees on. 3®'

Day to which it is had should be named 387

Taxes — who liable for taxes, etc. . '■ 387

Terms of sale stating what taxes and assessments would be al-
lowed 387

Agreement that a disputed assessment shall not be paid out of

the proceeds — the municipality cannot object 387

Index to Notes. 779

[See index to the rules, ante, page 709.]

JUDICIAL SALE— (Continued): , page.

Purchaser released — when he has been misled 387

Want of authority iti attorneys ; , 388

Error in describing the owner of the equity of redemption in the

summons '. 388

Sale suhiject to a mortgage already in judgment — purchaser re-
lieved 388

Purchaser entitled to a good title 388

To a marketable title , 1 . . . 388

Curing defects : 388

Defect of title through non-joinder of parties .- 389 -

Delay in perfecting defective title excuses purchaser. . . . , 389

Unpaid transfer tax 389.

night of way over the- land i.'. 389

Want of a provjision in a judgment of partition for unknown re-
maindermen 389

Purcihase under an honest misapprehension 389

Sale cajinot be enforced with deduction from price for defect. . . . 389

Premises destroyed by fire 389

Destruction of premises before the closing of the sale 390

Not released — creditor's suit — based on an order directing a pur-
chaser at a judicial sale to pay damages. '. ^90

Grold clause in mortgage not a defect in the title 390

Unsatisfied mortgage apparently barredl by the statute 390

Presumption that judicial proceedings arei regular 390

Order for publication of summons having a court caption 390

Failure to file report of sale , '. . . . 390

The purchaser may stand upon referee's deed. J 390

Not relieved by a mere possibility of failure of title 390

Defect must be substantial 391

■A mere possibility of defect does not affect the title 391

Title not unmarketable because a turnpike road once crossedi the

lajid ■ '. 391

Sale of right, title and interest only 391

Failure to appoint committees for luna,tie defendants 39 1

Purchaser at, not relieved because of- irregTilar service where

jurisdiction is obtained 391

Partition — ■ erroneous «onstruction of a will, not objected to 391

-Purchaser not. relieved on account of defects of title of which

he had notice 392

A slight variation in measurement is not a substantial defect. . . . 392

. Encroachment of a wall on adjoining land 392

Party- allowed to come in and defend after the sale 392

•Foreclosure by advel-tisement 392

780 Index to Notes.

, [See index to the rules, ante, page 709.]

JUDICIAL SALE— (Continued):

Not released: — (Continued): page.

Defective letters of axiministration 392

Void) process » . . 392

Revenue stamps must be affixed to a referee's deed 392

Judgment in partition conclusive where all parties in interest

are brought in 392

Remedy where the purchaser fails to complete the purchase 393

, Practice where the purchaser fails to pay the ten per cent 393

Assignee of bid — when he may be compelled to complete the

purchase 393

Compensation for imimaterial defects 393

Dower -^ effect of a. sale, in reviving right of dower 393

Record! — effect Of recording assignment pf mortgage 393

For what necessary 394

Purchase of land from the mortgagee after the assignment of the

mortgage , 394

Recording a. mortgage in a deed book 394

Assignment of mortgage acknowledged before one of the as-
signees 1 — record thereof is invalid 394

Failure to affix stamps required by the Revenue Law 394

..Deficiency — judgment, for deficiency against legal representatives. 394
Warranty — in prior deed — right of a purchaser at a foreclosure

sale' to recover thereon 394

Senior incumbrancers — made parties, to a foreclosure, may demand

foreclosure of senior mortgage 394

Adyerse possession — title founded on, sufficient 395

When a purchaser will not be compelled to accept a title based

thereon J 395

Title — acquired on a mortgage foreclosure sale 395

Void process — hona fide purchaser under 395

Isfotary — what notary cannot be referee to sell 395

Hamilton county — notice of sale in — in what newspapers pub-
lished '. 39S

New York city — fees on sale 39&

Liens on proceeds — nature of 39T

Liens determined by date of foreclosure sale 39T

Judgment creditor's lien 397

Lien extinguishecl i 397

Claim on surplus moneys extinguished 397

Surplus moneys — creditor's lien extends to 397

Lien of an attorney on a judgment, will be protected 398

Attorney's remedy for compensation 398

Priority of a lien creditor 398

Judgment confessed for partnership debt 39$

Index to Notes. ' ' • 781

,, [See index to tlie rules, wnte, page 709.]
JUDICIAL SALE— (Continued):

Surplus moneys — (Continued): . page.

Subsequent incumbraaicer, without liotice — haa no claim upon

surpMs , ; 398

General creditor should be made a party to tlie proceeding...'. 39S
Where second mortgagees have priority over judgment creditors

whose judgments, are prior in date of docket 398

A junior m'Ortgage taken as collateral security for another obli-
gation . . ; : . . . 398

An unrecorded mortgage has priority over a suhsequent judg-
ment 398

The mortgage first recorded is presumptively the prior lien . . . 39?

' Such presumption may, however, be oyercome. ^ 398

Puifchasers of land sold under exfecutioh have priority over

junior judgments '. ;...'.. 398

Distribution of — notice of claims 398

Necessity of notice to creditors of deceased mortgagor 398

Tenant for years — has an equitable interest in 359

It goes to the heirs of the mortgagor 399

' It stands- in place of laud sold — widow^s dower.... 399

When the value of an inchoate right of iower will not be paid

to 'the husband . :; '.'.. 399

What liens "share in surplus ■ 399

The filing of a lis pendens creates no lien 399

The owner of an easement is entitled to sharct in the surplus . . 400
Mortgages given by a life tenant and by remaindermen — dis-
tribution of surplus arising on a foreclosure thereof 400

Inchoate right of dower . . . , 400

Effect of former judgment 400

A pending prior action, not a bar to a proceeding to distribute i

surplus moneys j . . . . ; 400

When a claimant is not barred from application for a reference

' by a summons served upon another claimant 401

Court has no power to displace a prior lien in, favor of a subse-
quent one : 401

Form of orders for paying out. .' 401

Judgment — secured on appeal 401

Lapse of judgment -lien before foreclosure sale. 401

Notice of application to confirm i-eport of referee though no ex-
ceptions be filed r 401

iSurplus moneys on a sale in foreclosure to be regarded as
r realty — where; an action relating to them must be brought. 402

A claim may be prtesented and established! by the plaintiff a» well

as by any other person 402

Distribution of -^rights of junior mortgagees considered. 402

Reference in surplus money proceeding — it is a special proceed-
ing ■ .! 402

T82 ' Index to Notes.

[See index to the rules, ante, page 709.J
JUDICIAL SALE — ( Continued )■ :

Reference in surplus money proceeding — (Continued) : page.

Order of reference — oTaject of 402

Referee inay inquire as to the validity of liens and conveyances. 402
Power of referee to determine claims arising under a second

' mortgage 402

Usury — may be set up by junior as against senior claim.. .. . 402

Certificate of clerk . . .s 402

Duty of referee 403

Neglect to file notice of claim 403

Proof of claim 403

.iPower of court over referee's report 403

Notice of application to confirm report. 403

Default in appearing on reference ,. 403

Appeal f rom .^ order as to surpllis moneys — when reveiwable in

^he Court . of Appeals : ., 403

What order is not final and is not appealable to the Court of

Appeals 403

Costs in surplus money proceedings — what costs are allowable . . . 404

JUNIOR MORTGAGEE — Rights of 371

JUSTIFICATION — Of sureties. See Undeetaking.

LACHES — Relative to the right to a discover^ ■ 101

Precluding a defendant from moving to set aside a judgment for

.non'servioe 133

/ Dismissal of action — : failure to prosecute 263

In filing note of issue 292

On motion for a change of venue 331

Delay in failing to serve a case on appeal. See Case and Excep-
tions.

LEASE — Of infant's real estate 351

LIEN — Of judgment :..... 69

Of attorneys 84

Enforcement of 90

Reference to report on 183

Effect of foreclosure on prior lien 369

On proceeds of sale of mortgaged premises 397

LIFE ESTATE — Computation of — value of. 414

LIMITATION — Of action in relation, to foreclosure actions . . 361

LUNATIC — Sale, etc., of incompetent's real estate 348

-Costs — authority of committee to pay 419

Discretionary ^- not allowed unless proceedings are for tlie

benefit of lunatic 416

Costs where the lunatic dies before the confirmation of the

inquisition • "^

Duty of committee to see that the issues raised by an alleged
lunatic arc properly tried ^lo

■' " ' Index to ISTo-rEs. 783

• [See iiidex to the rules, ante, page 7,09.] '

MARKETABLE TITLE.

'See Judicial Sale.
MATfilMONIAL ACTIONS.

' See Husband and WiIte.
MERITS — Affidavit of. See Affidavit , of Meeits. page.

MINUTES — Of stenographer- ; 2S4

MORTGAGE — Of infant's real estate ...... :... 351 ,■

MORTGAGE FORECLOSURE — Proper parties to a foreclosure suit.... 398 ''

, Wlien a bondholder may bring it , . ■ 358

A failure by the trustee, to foreclose for a long time after a ■

default . , 358

-' , Wife not personally served with, the summons in a mortgage '

foreclosure — ^ judgment hot vacated ' :,). 358

rPerson not made a party .in hi's official capacity 359

When it binds a general assignee made a party in his indi-
vidual capacity . .,.....' , . . 359

All having a right, to redeem made parties 359

Any person liable for the debt ., 359

The people ,.i..' ....:.'. 359

.■ i When a prior mortgagee is a proper party 359 '

Mortgagor a necessary partj', although a receivej has beeri ap-
pointed ; 359

A jrior assignor is a proper party 359

Paramount claimants made parties 359

DOTvress claiming under paramount title. . 360

Title of infant defendant not cuti off , 360'

Who are proper parties ' 369

Action on bond for deficiency on foreclosure in another state. . 3(50

Pijblic policy — mortgage given to indemnify bail 360

Mortgage taken by a life insurance company on property not

■Worth fifty per cent more than the loan ; 360

Purchase iby the mortgagee of the equity of redemption 361'

Appearance — after judgment . . 361

When a, party Appearing is not entitled to notice of a liearing

before the referee ........' .* , 3'61

^fter _ appearance — notice of computation of amount due 361.

Statute of Limitations ^ — it does not run in favor of an absent, '

mortgagor . _ 381

Reference — form of order of reference to examine, etc 361

,Not granted where some of the defendants are not served. . . .,. 361
Nor upon a failure to appear on the trial, where an answer has

, been interposed . . .' 368 •

Practice where some defendants answer" and some do not....... 362

Including inquiry as to amount due and the trial of issues —

, when irregular ■ . • 382

.' To- compute amount due — affidavits on motjon for 362

,r , ' 50 ^ ' '

784 Index to !N"otes.

[See index i to the rules, ante, page 709.]
MORTGAGE FORECLOSURE— (Continued):

Reference — (Continued): _ ^ , PA(

How affected by the amount demanded In the complaint. ...... 3i

Duties of the referee — amount due ' 3i

Sale — additional compen«p,tlon to the ref er«e . a

A referee is entitled to be allowed his disbursemeilts 31

Allowing set-off^^ accounting . 3(

Extent of examination by 3*

Proceedings on the reference. ^ 3(

Affidavit cannot be received as prpof 3<

Proper practice as to proving the bond" and mortgage on . . j, . . . 3<

Recital of bond in mortgage. 3<

The referee need not find the several items 3(

Nomination of the referee .- . . ..'. 3(

When there are absent defendants, form of order .' 3(

Report — should show facts and an abstract of the documents.... 3(
Where the mortgagee has ibeeii compelled, in order to preserve'

his security, to pay rent, or tp pay taxes . . .'. 3(

Confirmation of the report 3<

Effect thereof '. 3<

'Court confirming, how composed 3<

Impeachment of. as to terms of sale, by affidavit Si

What is a sufficient direction for the entry of a judgment ..... 3<

Estoppel — assignor estopped from alleging payment of the mort-

gage

Trial — unless reference is ordej^ed, the trial is to be in the same

county as the property .' 3(

JTudgment- — variance between it and tlie referee's Report — remedy. ^.(

Judgment of sale — not interlocutory 3t

Final only for the purpose of review 3(

Liability upon the bond 31

Effect of a judgment of foreclosure W

Effect on the mortgage. *

When interest of parties becomes barred 3(

The judgment does not affect a pa.rty claiming under a para-
mount title ; .- 3*

Does not prevent the defeat of the mortgage under-ihe Statute

of Limitations . ^ ■ - • *

Cannot sell priorities and equities of subsequent incumbrkn'feers. 3<
When such a judgment is res adjudicate against a mortgage.. 3<

Scope of judgment ,■ • ■ • ■ 3i

Foreclosure of mortgage not due at the commencement of the ^

action 31

What questions may not be raised collaterally. - 3(

An order for a special clause to be inserted therein cannot be
granted before judgment 3i

Index to Notes. 785

[See index to the rules, ante, page 709.J
MORTGAGE FOEECLOSURE — (Continued) :

Judgment — (Continued): page.
Judgment where restrictive covenants were entered into sub-
sequent to the execution of the mortgage 367

Motion for judgment under this rule — when proper 367

What direction of judgment is not a decision. . , 367

Sale of lands not described in the complaint 367

Reinedy - -. 367

•Right' of redelnption given in a decree 368

Relief available to defendant in an action to set aside a mort-
gage and to restrain foreclosure '. ■ • • ■ 368

Death of the owner of the equity of redemption after interlocu-
tory judgment 368

Judgment vacated- — judgment and sale on foreclosure set aside jto

enable service to be made on an infant . 368

When a judgment and default will be set aside 367

Circumstances under which a judgment of foreclosure and sale

will not be set aside 368

Premises out of the State — foreclosure of mortgage on. 369

Action for the strict foreclosure of a mortgage upon, lands
-Situated in another Stat^ — when the courts of this State

\ ' have jurisdiction /over it. ...... i .' 369

Land in another State — to be sold and conveyance to be ex-
ecuted by the mortgagor .' '. 369

Amendment of judgment, requiring the mortgagor to execute a

conveyance. . . . '.-, 369

Action on bond in this' State 369

Prior liens — ' effect/ of a foreclosure on prior liens — right of subro-
gation. 369

Effect of a foreclosure on a prior dower right 369

Priority of judgments on land conveyed in fraud of creditors —

dower 370

Purchase-money mortgage presumed to be a first lien 370

Voluntary future advances only, postponed to subsequent lien. . . 370

Parties — prior lienors ,- 370

Subrogation — when proper 370

Who is a stranger and volunteer* , 370

Purchaser of mortgaged premises is not entitled to subrogation

■^ to the extent of moneys paid on the mortgages 370

Advan<5ing money to discharge lien .' i 371

Effect of quit- claim deed given to holder oi mortgage ^ 371

Junior mortgagee — redemption — a tender, by, does not discharge the

lien of a prior incumbrancer 371

■ ' Redemption by a junior mortgagee not mside a party 371

' , . , Righi of dowress to redeem' ' 371

V86 ' Index to IiIotes. ', ■■

[See index to the rules, a nib, page 709.]
MORTGAGE FORECLOSURE— (Continued) :

Junior moi'tgagee — (Continue^) : ' .j

Junior incumbrancer not made a party to tha action

Lea;Sehold interest — foreclosure of mortgage on

Eight of a junior mortgagee to take an assignment

Rents and profits — ^ power to appoint a receiver of rents and profits. .

When proper ."

When' a receiver of, will be appointed '.

Relative riglils of senior and junior mortgagees

s , Receiver appointed although principal sum is not due

Appointed without notice, where the summons was served by pub-
lication , .■

Proof authofizi ng the appointment ..'...... .'........

A receiver's clause gives, no absolute Tight- to have a. receiver
appointed ;

What rents are recoverable by him ,

Payment of rents, on a subsequent mortgage ■■.

Second receiver in foreclosure. , .,i '. . . .

Right of a junior incumbrancer h hen a receiver is appointed on his
-application

Mortgage Upon — when retrospective, discussed

Receiver of — liability of the tenant to, him

After-acquired propert.3'_, . .'

Condemnation proceedings — effect of, on a mortgage . . . -.

Surrogate — when surplus monej'S are to be paid over to him

Surrogate's jurisdiction over surplus money is constitutional....

tVlien 'surplus , should not be jiaid into the Surrogate's Court

Title — _ when acquired

Defense of failure of title ,

Foreign corporation — taortgage negotiated by . . .-^

Taxes — when foreclosure will not be decreed for non-payment thereof

Deed — form of . . . '

tteflcieney — assumption clause in deed does not of itself create a
liability for i, '. j ■ ■

Judgment for, must be decreed in tlie Judgment for sale

Cannot be entered until after a sale

Resale — wlien it does not/ relieve one liable for a deficiency

Title acquired at a foreclosure sale ;;..^,.

Liens on proceeds of sale ' .\ . ,'. . ,

Surplus moneys

Proceedings on reference in surplus-money proceedings

Stay of sale in foreclosure •

Sale of mortgaged property. See JnDioi.\L Sale.
MOTION AND ORDER — Definition of order .'. .'

Order to bo submitted to adverse party before entry . . ;

Duty o.f attorney, not of judge, to see that the order is proper..

Index to IsTotks. 787

[See index to the rules, ante, page 709.],
MOTION AND ORDER— (Continued): page.

Order, by whoiia entered '. , \ Jii'- 5 1

When the unsuccessful party, may enter the order ' . . 51

Tl^itj of the clerk to enter tlie order — party not prejudiced by his

failure to do so ; . 51

Entry of ; — during session of court ........'. ; . . 51

Decision ineffectual until order entered — date to be tliat of entry

of order 51

Order vacating injunction must be served and the papers filed be-
fore if talies effect . . . . , '. . . '51

Appeal proper, only after order entered and papers filed. ... ^ .. ..'^51
Chamber order — must be 'filed in the department in which the,

appeal is taken .51

Appeal from chamber order of county judge — propar only after

entry of the order 51

A chamber order need not be entered ,,. ...... .-, ._. .52

Order signed by county, judge on a County Court caption, a .cham- ,

. ber order 52

Recital in order : -. 52

It should specify the papers read ,.......:. 52

What recital is too indefinite 52

An order sjxould recite all papers used on the motion 52 v

' , Conditions vchen not imposed on a failure to recite in the order

and to file an affidavit used on a motion 52 ,

• Resettlement of an order vpliich does not contain proper reoi,tals . . 52

Rfesettlement, not allowed to effect a, renewal of a motion ...... 53

' ' Power of justices of the Appellate Division as to granting orders 53 ' •
. Court cannot, direct that papers used upon a motion need not be

printed in the appeal book 53

, Non-enumerated motions — what are . ..\ ....-......_.. 53

' ' For what day noticed... . . i .....' ', . . . ." .,:..:. 53

motion, where made ...'.. 53

Form of order for discovery 113

Failure to folio motion papers. 143

Illegibilitytr^of motion papers^ — motion will be denied for that rea-
son . . : ,, 143

I ■ Notice — when for other than first day of terpi . J46

Order to show cause must be retm-nable the first day of the term 146
Copies of papers. — ^omission of the jurat, to a copy of an affidavit —

not fatal 147

Copies served should include signatures, etc : 147

Relief — in case of an omission to serve copi'cs 147

The pleadings are not included in the papers required to be served 147

Papers served on a previous .motion need not be reserved, 147

"What papers read on motion 147

'-'■■ Form of order of surrogate 147

788 Index to I^otes. '

[See index to the rules, ante, page 709.]

MOTION AND ORDER— (Continued): p

Return — to whom to be made

i Indorsement stating defect

Objection — must be lexplicitly stated .*

Jurisdiction of the Appellate Division — over motions

Further return to writ of certiorari

Previous' applicatioii — fact as to, must be stated in supplementary

proceedings

Elifect of its not being stated

Only an irregularity

Order may still be granted ,

Leave to renew was formerly unnecessary. . . . ■.

Decision on a motion is not res adjudicata

Omission to' enter order does not authorize a new application .. .

•Attorney's fees — docket of order for, improper

Judgment — entry of, in a special proceeding. . .'

Execution may issile to collect alimony .-;

Also ,to collect money directed to be paid from a trust fund: . . .
Enforcement of a judgment against a dissolved corporation....
A receiver may enforce by execution a judgment between other
parties which requires money to be, paid to him 1

Contempt — order not enforcible by execution, may be by proceedings
for contempt 1

Mode of service of notice — it must, as a rule, be served' personally,
if not otherwise prescribed S

Nature of notice of motion — it cannot be vacated or quashed on an
independent motion : ; 2

Order tp show cause — requisites of order to show cause .2

Does not indicate any opinion on -the _part of the court 2

Powers of county judge, consddered 2

When he cannot grant it '. 2

Surrogate's Court — ^^not applicable to. , 2

■ Order of surrogate exempting an estate from transfer tax 2

By whom it may be made ■. 2

May be granted by the judge , 2

Kule applicable> only to incidental applications 2

Not binding on the court 2

Where returnable — by whom made ; 2

Returnable at Special Term held with circuit ,. .' 2

When ,made — within what time and when returnable 2

The length of time is discretionary. 2

Order returnable after eight days i . . .^ 2

When the rule and Code not applicable to it 2

Order discretionary ^ s . . 2

Order returnable on Sunday — void 2

' Index to Notes. ' ^789

[See "index to the rules, ante, page 709.1
MOTION AND ORDER— (Continued) ;

Order to show eause — (Continued) :

Aimended nunc pro tunc 272

What a sufficient reason for short notice of motion to vacate an

order of arrest . .r 272

Not proper when defendant is not under arrest 272

ifor to bring o» a motion already noticed for a diflferent place . . 272
Defective order — not set aside after an admission of service

given 272

Behearing on order to show cause before same ji;idge 272

Necessity of re-signing order! 272

Resettlement of order 273

• Granted after expiration of time to appeal ; . . 273

Inherent power of the court 273

It ia an order and not a alternative writ of mandamus 273

Irregularity — What is not a motion to set aside for irregularity... 275

Failure to file- papers, not a mere irregularity 275

When rule as to specifying irregularities is inapplicable 275

To what case the rule is not applicable 276

Issuing an execution in violation of a stay of proceedings 276

Eijtering judgment on an answer regarded as frivolO|U9, as if

upon a default ;;..... >. ... 276

A motion to open a sale on the ground of surprise or mistake . . 276

A jurisdictional defect . . . . , , 276

Judgment entierfed on an ii^regular confession — a motion to va-
cate is not a motion for irregularity 276

Rule, when applicable . . . ' 276

What are irregularities — what laches fatal 276

Entry of several judgment on joint indebtedness — amended after

one year 276

Defects in the summons and copy paper served are irregulari-
ties and must be specified 277

Objection that the return day in an order of arrest has been

changed — must be specified : 277

That an execution was issued after five years without leave.'.. 277

Attachment — irregularities in order to show cause 277

Not sufficient to state it in the moving affidavits only 277

iM^st be stated in notice of motion , 277

Must be specified in the, notice of motion or order to show

cause ; 277

Order not reversed' on appeal, ' because the ground of the motion

was not specified in the notice 278

Appeal .^ presumption when irregularity is not mentioned..-. 278
Action of court below, not reviewable in Court, of Appeals .... 278

All objections — to be presented in one motion 278

Motion not extended beyond the Object specified 278

790' , Index to INotes. ,

[See index to the rules, ante, page 7Q9.] ~
MOTION AND ORDER — (Continued) : page.

Laches — in moving, if atal — mo'tion to set aside for irregularitj?

must be made promptly '. 278

What laches -in moving to set aside a referee's report is fatal.. 278

.Laches of the clerk" in entering orders — not to prejudice parties. 278

Objection to irregularity must be made at Special Term 278

Formal objections waived, if not taken at once , . . 279

Place of making motion — stipulation to allow a motion to be made

in any county .« , 279

' At Chambers -:- when heard only by' consent , 279

' Motion to set aside a substituted service — where to be made. 279

Motion to consolidate actions in different districts, where made. 279

Mptions in first judicial district in actions triable therein. .. . 279

In the first district — application to vacate an attachment.... 279
In the first district, a motion in an action triable in another

district is improper^ • 279

Moving papers need not show that, motion is made in the'

proper county ; 279

Motion to vacate an ordef of, arrest 279

Motion to, dismiss an appeal, to be made at (General Teriu.... 279

Time of arguing motion — rights of parties in regard thereto 279

Renewal of inotion — leave necessary 280

When a motion cannot be renewed without leave of the court.. 280

Second motion without leave .„ 280

; When leave to renew unnecessary. 280

Leave to renew — discretibnary .'. , ...,• 280

■~ When leave to reargue will be granted j-. . .>l 280

Defective! papers -- the ground of denial of original motion .... 280

Renewal of denied motion — exception to rule : 280

Where leave to renew is granted it should be so stated in the

order .....' , 281

When leave to renew is granted at time of supplication — when

renewal need not be made within a year. ..'..... 281

On new facts \ ,• ■ •' 281

On different facts ! j : 281

'On newly discovered facts 281

Not granted on grounds known when the original motion was

made 281

Second motion improperly granted, pending- a decision of first

' motion • ■ '■ • 281

'Not upon cumulative papers 281

When leave granfed, will not be reviewed on appeal 281

Attachment vacated on the merits — when another application

i , improper ^°^

Attachment against national bank — when motion to vacate

\ may be made ; ■ • -°^

' ' Index ' TO Notes. 791

[See index to the rules, ante, page 709.]
MOTION AND ORDER — (Continued) :

Renewal of motion — -(Continued): page.

Defendant not to Jae continually vexed with the same applica-

, tion . . . i :..... 282

Motion denied on preliminary objection — may be renewed on

' . the raeritfe ' '. y 282

A motion to open an order and for the .relief sought may be

made at the same time ■ 282

Motion to strike out an answer as ,sham, after the denial of a

■ motion for, judgrdent thereon as frivolous 282

Bail — application to allow surrender as a favor, after denial

of, as matter of right. , 282

Appeal from original motion — motion to renew not precluded

by . . /. , '. I : . , .' 282

' The motion will, however, prevent the hearing of the appeal . . 282

First order a bar ....■> : . . . 282

Application to another judge 283

Motion need" not be made before the judge who decided the

, former motion . '. 283

New facts justify — without leave 283

Without payment of the costs of a prior motion 283

Papers once served ruay be referred to on a subsequent motion. 283

To obtain leave .-..,. 283

Motion for leave and of renewal at same time 283

An appeal pending — not a bar '. 283

Motion to renew prevents hearing of appeal 283

Entitling motion papers — where abjection is to be taken. 283

Failure to entitle a motion for the appointment of a trustee in

a separate proceeding , 283

Entitling one order in several actions ■ 283

Costs -^stay effected 'by non-payment of 284

With,drawal of motion — costs 5— when payable -. . 284

Not allowed jyhere, before the hearing, the ground of the

motion is obviated 284

Where costs- are inserted in an order entered under a decision

not giving them — judge cannot then give costs 284

The party who is to pay costs must seek and tender them to the

other 284

Non-payment of, a stay 284

On failure to pay costs 284

A receiver may enforce by execution a judgment between other

parties which requires money to be paid to him ■. 284

Condition — when and how copiplied with 28;5

Party must take notice of, and comply with order 285

Failure to perform condition, proper practice on 285

What condition , may be imposed 285

792 Index to Notes.

[See index t6 the ruIeSj ante, page 709.]

MOTION AND ORDER— (Continued): '- page.

Reargument — application for reargument must be made before the

same justice . . . ., i. . . . '. , . . 285

Motion for rehearing on the ground of misapp rehension or in-
advertence before original judge .''-..:./... y. 28S

Bes adjudioata — not applicable to special motions 287

A person allowed a. hearing on a motion is concluded 'by the de-
cision '.,.7 287'

> What will not preclude a motion to reopen default. 287

"Jurisdiction — question of jurisdiction, not' to be decided on a

motion to dismiss- -the complaint , . •. 287

Service by mail — on what hour of the l^st day to be made' . . .-. . . . "287
Motion to vacate — -a judge granting an order for substituted ser-
vice may .entertain a motion to vacate it. . . 287

Eoo parte order vacated on motion at Special Term 287

I Affidavit must show present conditidn of action . 287

Application denied when affida,vit insufficient . . . '. 288

Modification — an order can be modified only oii motion 288

After modification 288

Entry of order, by whom — right of unsuccessful ■ party to enter

order ...'..."..'. .i ....'. 288

' Omission to enter order — effect of — who may enter it...... 288

Review — of the decision of one Special Term by another is inj-

proper . . . .-^ 288

Relief from terms iinposed must be sought from the justice im-
posing them '. . : : 288

Appeal — ■■"•when it does not prejudice a motion 288

Default on motion — ■ laches in opening 288

Costs not granted when not demanded in notice 288

Enumerated . motions ' — an appeal from an order appointing sin ad-
ministrator . . : ......' 290

An appeal from an order sustaining or overruling a demurrer. 290
A motion for a new trial on a case or bill of exceptions. ...... 290

A motion, for $. new trial on newlj' discovered testimony 290

'A motion to set^ aside the report of a referee on the merits.. .. 290"
A motion to' Confirm referee's report on reference under inter-
locutory decree ". 290

An appeal from an order of the County Court gj-anting a new

trial on tjhe judge's minutes '. 290

Appeal from an order of the New York Court of Common Pleas,
denying motion for nsw trial, taken independently from the

judgment. ' :....... :. 290

A motion for the confirmation of the report of a referee appointed

under an interlocutory jtidgment .'...: 290

Non-enumerated motions — a motion for a reference in an action .... 290

IwDEx-TO Notes. 793

[See index to tjfe rules, ante, page 709.]
MOTION AND ORDER— (Continued) :

Non-enumerated motions — (Continued): page.
A motion to set aside a report of referees on the ground of irregu-
larity , ' 290

A motion to set aside a verdict for irregular conduct of jury .... 296

A motion to bring on trial by record . . „ 290

A motion for .Judgment on the pleadings .....: j . 290

Distinction between final order and order with leave to plead over. . . 290
Motion for judgment for frivolousness is the trial of an action .... 291
Contested motions — heard only at regular. Special Terms, unless

otherwise ordered ._ '. 291

Cannot bfe Jieard at a Special Term adjourned to chambers, except

by consent 2^1

When a hearing is in the discretion of the court 291

When properly noticed for a Trial Term : 291

Service of papers — neglect — notice must be given of a motion to

strike from the calendar 297

Failure to serve papers 297

On motion to confirm a r^eree's report, the supporting pipers

should be served with the notice 297

Demurrer — papers to ' be furnished by a party demurring, to the

court only 297

Motions affecting receiver. .' .'. 449

NAME — Discovery not flJlowed to ascertain names of parties. : 101

NEW TRIAL. See Case and Exceptions.- - '

. NEWSPAPER — Publication of notice of sale 378

NON-ENUMERATED MOTIONS 290

NORTHAMPTON TABLES 414

NOTICE — Of application for an order of discovery , . . 118

Of enumerated inotions. . . .' '. 146

Of a.rguinent 275

Of examination bef oyc' trial J ....... . 460

Of sale. See Judicial Sale.

Of motion. iSee Motion and Order.

OATH — Of attorney 36

Of referee , 181

OBJECTIONS — On trial. See Trial.

OPENING AND CLOSING CASE - 168

ORDER. See Motion and Obdeb.

PAPERS — Filing of : -. . 46

Failure to file 47

Leave to file at any time »•.... 48

Illegibility of '. 143

Irregularities in copies of . 147

Furnished oM enumerated motions ' 297

On demurrer 297

Ins(pection and discovery of books and ipaj)ers. See Discovery.

794 Index to Notes.

[See index to the rules, ante, page 709,]

PAGE.

PARTIES — To a, motion for discovery , . : 115

To action of foreclosure. See Mohtoage Fobeclosubb.

PARTITION — No inherent power in the court : 405

Supreme Court — jurisdiction of '. 405

Action of partition to try title — allegations as to adverse title . . 405
.Specific liens on undivided' shares should be determined by the in-

' terlocutory judgment 405

No exceptions need be filed to the referee's 'report , . . 405

, ' Lien upon premises partitioned — how asserted 405

Co-tenant out of possession may maintain partition 405

• , Consolidation of actions for partition a 40ft

When a sale, instead of actual partition, will be ordered. ...... 406

Issues tried in a partition suit — exceptions, where considered . . 406
Issues tried by a; jury — motion for a new trial under section 1544

of Code of Civil Procedure, improper ; 406

The interlocutory judgment Would provide for existing liens. .. . 406

' Oder confirming sale cures all prior irregularities 406-

Jurisdiction confined to propei-ty tfescribed in -complaint 407

Proceeds of sale ^-~ when feal estate 407

Allegation as to other lands : — omission to kllegs that the parties own

no other' land in common 407

Motion to include other lands — bill of particulars thereof — plain;

tiff required to pay costs • 407

Dismissal of the complaint in partition 407

Abstract of title — to be produced on reference 408

' 'Need not be annexed to report ., 40S

Referee — report of — ■ how corrected 408

Power of, as to incumbraiices 408

Eeport a? to whether an actual partition can be had 408

PAYMENT ^- Chancery' rule — • investment 411

Payment to a, referee : 411

Officer protected in paying 411

Payment into court ; 411

Proper , practice thereon 411

, Northampton tables — use of,/ in action to recover damages for death. 414

To estimate the value 6f a husband's life .^ . . 414

Carlisle table of mortality 414

Contingent dower right — rule for computation of 414

Gross sum in lieu of a life estate — discretionary with the court. 414

Gross sum not awarded for an inchoate right of dower 414

WKen moneys representing an inchoate right of dower will not

be paid to the husband 414

PHYSICAL EXAMINATION — Before trial 119, 458

PLACE — Of trial. See Venue.

"if/'''
• ' ' ' ' " '

Index, TO NoTJr.s. T.93

[Sefe index to tlie rulesr, ante, page 709.J
, ' 1 , ' PAGE.

PLEADING — Irrelevant matter — ■ power of the court to strike out .... 148

'Facts alleged in support of a d&ial, not stricken out 149

When an answer ia not frivolous J. 149

Irrelevant matter — argument as to. : , .' . 149

.What is irrelevant matter ; . . . .- ; 149

What is not. ...... .'; 149

An answer cannot be considered frivolous unless bad as a whole. 149

^ What irrelevant matter, .comprehends. -. 149

. » Not favored by the courts , . 150

If in any view relevant, it should not be stricken out , 150

, The irrelevancy must appear on the face of the 'pleading.,:,.. 150

The matter must be clearly irrelevant , ■. V. . . 150

If not, the remedy is by demurrer . ,. 150

' ■ ■ When the remedy as by demun-er or motion on the trial ,-. . . 150

The entire pleading will not bs stricken out 151

In part relevant r/.i '..'.. 151

.' ' ' '^'v

■ '■'''.'■ 'A''''t -A P^i't of a pleading, in tort, the. rest being on contract, stricken

; ;■ ' out , .' 151

When answer allowed to staiid '. 151

Unneaessarily elaborate statements, not stricken out 151

In equitji' actions ' ; 151

What paper* should be served ' 151

Denial of motion to strike out allegations as to u deceased de-
fendant ,,, J . ., 151

Matter not stricken out because inconsisten't . '._ . ..... ...i 151

Laches in an application to strike out inconsistent defenses.... 151

The validity of a defense not determined on motion > 152

Nor the sufficiency of a, pleading 152_

To strike out, redundant matter 152

Scandalous matter — striking it out is discretionary . 152

Plaintiff's attorney may move. . 152

"■ Motion to make definite and certain — insufficiency mu.st clearly

appear 152

When it will be grailted .,......',;- ,. 152

When it will be denied ■...,.... .,\ t . 152'

When not indefinite •■ . . I'i '• 152

Reference to ascertain facts — when improper '. . . . 152

Kffect of other sufficient allegations 153

ISIotion denied where the moving party had as definite knowledge

as tlie other party ; 153

Separation of canses of action, granted on motion 153

Fraudulent acts — surplusage ;........,. 153

As to a counterclaim, -when denied. ..'...' 153

Plaintiff not required to elect to charge frfiud or mistake , 153

T96 Index to Notes.

[See index to the rules,' ante, page 709.]
i-LEADING— (Continued) :

Motion to make definite and certain — (Continued) : page.

Motion to make a complaint definite, etc., not granted after

answer , 153

Definite lines of work not required to be specified 153

V Allegations as to knowledge of fraud which are not obscure 153.

Name of person to whom information was given, not required. . 154
Requiring a statement whether the defendant is charged person-
ally or oflflcially 154

Requiring a definite description of the premises in question 154

Action for a failure to procure insurance .:..'.;"..■. 154

Denials upon information — *hen insufficient 154

I What is not an excuse for an insufficient pleading 154

Denials not required to be made more definite by adding other

matter . . . i 155

Defendant not required to be more definite than, plaintiff has

, been 155

Motion is proper remedy v ^ . . . .~ 155

Dismissal not proper remedy 155

Affidavit improper '. 155

.Time — of making niotion, to- strike out irrelevant matter 155

Within what time 155

Insufficient time ; .^. 156

Not at earliest possible moment ~: 156

Within twenty days from the service of an amended pleading..'... 156

Before the cause has been noticed for trial 156

1 , Motion to strike out cannot be made at the trial 156

Time when paper served by mail , 156

Waiver of right to have irrelevant matter ejfpunged — service of an

answer 156

Extension of time to answer . .' 156

Stipulation, when not a waiver 156

What is not a waiver of a 'f ailiu'e to serve notice in time 156

Notice ■ — contents of '. 156

Defects must be specified in motion papers 157 _

Irrelevant matter stricken out on mention for frivolousness 157

Res <^djudwata — ■ Denial to one defend'aiit, not a. bar to the applica-
tion of another defendant . , i ........ . 157

Discretionary — appeal to discretion, after denial as a right 157

The striking out of irrelevant and redundant allegations is dis-
cretionary , 157

Appeal — ' lies from an 'order denying a motion to have a complaint

made more defihite and certain 157

Appeal from order striking out irrelevant matter — the com-
plaint adjudged bad on demurrer 157

■ Index to Notes. 797

■ [See index to the rules, ante, page 709.]
tLEADING— (Continued): page.

Stay — stay of proceedings to make a pleading more definite pending

an eippeal . .:. ,. , ;....'...; 157

In what case it may jbe granted: ' 157

Affidavit necessary — for an order extending the time to answer. . . . 160
Demurrer — after an order extending the time to answer is irregular. 160
Striking out — a pleading — motion for, by what extension author-
ized .' 160

' , Additional tinie — when it commences to run 160

Seven" days' time — when it couHnences to run. 160

Mailing of order on thp last day, sufficient 161

When rule does not' apply , 161

Waiver — of right to have the complaint a^nended 161

Laches — of. court — party not injured by 161

Of attorney ." ; . . 161

Time — Statutory Construction Law ^ computation of time 161

' Computation of time 161

Fractions of a day. 161

A week ' .'. 161

"Month" and "day" defined , '. . . 161

Ordier extendling time ffl^y be ex parte — when properly granted. l6ll

Alfegation as to other lands, in partition 407

POINTS — On appeal , 302

PRACTICE- In cases not provided for. ,' 9

PREFERRED CAUSES 293

PRINCIPAL AND AGENT — Inspection of the books of an agent.'. 117

PRINCIPAL AND SURETY. See Undertaking. - '

PROCEDURE — Power inherent in court , 8

On application for discovery i98

PROCESS — Receipt for process 60

Delivery to deputy^ — liability of sheriff 60

Delivery of process must be knowii to him. 60

• ' , .Delivery to a person in charge of the business in the office of

the coroner — when sufficient 61

Return — process may be returned' on the morning of tl^e return day. 61
Sheriff to serve and return a declaration within a reasonable

tiine ,' : . . 61

An officer is bound to use diligence in executing process 61

Shferiff to return writ without an order of the court/.- 61

Effect on a return of a reversal of the order requiring it to be

made • '. . .' 61

Demand for return not 'necessary before suit 61

.Attachment to compel — an action may be brought 61

Damages for a failure to make — proof of . . : 61

Return by the deputy, as to the amount collected on an execu-
tion, conclusive on the sheriff ; 62

798 Index to Notes.

[See indQX to the rules, ante, page T09.]
.PROCESS— (Continued) :

Return — (Continued) : page.

Return of an execution, after action commenced — damages —

effect of return nulla bona 62

Effect of return of " not found" on ithe bail — their rights if' the

return is false.' 62

Return of "discliai'ged on bail " — when made by new sheriff. . . 62
Sheriff, after expiration of his term, may complete execution of .

a fi. fa ; . 62

Correction of return — after an action for a false return has been

oohimenced ....... L '. 62

A corrected returp may be read in evidence with the same effect

as if originally ^o made^. .'.... y''" 62

.Omission of the sheriff to indorse the proper' return on a,n execu-
tion — amendable nunc, pro tunc 62

■Waiver of right of action' for non-return ........."•. 63

Plaintiff in exe'cution, whrai not liable for instruction to sheriff. 63

Fees .— non-payment of ' '. ■ 63

Stay of proceedings . . . |. ; . . . , 63

'Submission to arbitration after judgment — ■ sheriff , eanriot set it

up as an excuse for not returning an execution , 63

.Sheriff is bound to levy under an execution regular on its face. . 61

'Not liable/ if the execution was void 61

Not excused for aji escape by showing that the execution was

irregular , 61

Irregularity in issue of writ — sheriff ,oannot take- advantage of . . 61
Presumption — that the sheiriff began execution of a writ within, its

lifetime '. 63

Proof of service — sheriff's certiftcate of service, out of iia county. , . . 125
When a sheriff.'s certificate is insufficient evidence' of service. . . . 125
Return of, sheriff — conclusive, though service was made by one

not a. deputy 125

Clerical error in sheriff's certificate — disregarded 125

Positive affidavit of service — when it prevails over defendant's

denial ,...:. i i 125

Service presumptively esta;blished by the judgment record 126'

Plaintiff — ; how concluded as to the date of service of a summons. . 126
Defendant may controvert the certificate, or affidavit of service. . 126
Omission Ito state affiant's age in affidavit of service, where affiant

is an attorney-at-law. '. 126

Judicial notice of attorney's age — irregulai'i ties. Hot fatal 126

Must show that person serviiig knew defendant 126

Service — bow made — a constable may serve a process in his own

favor 127

Index to Notes. , 799

[See index to the rules, ante, page 709.]
PROCESS — ■ ( Continued ) :

Service — (Continued): . page.

A. sheriflf may serve liis own process : . . . . 127

In Justice's Court a plaintiff may not serve his ovm summons . . 127

Service by a party is a mea-e irregularity 127

In a special proceeding '.>.';.■...'.: 127

Plaintiff may prove an admission of service....:. ,.,/... 127

Service, must be directly on , the party 12i7

Receiving back a summons makes the delivery insufficient 127

iServioe on a, corporation at common law 127

Service of a summons upon one with whom a lunatic resides is

, insufficient , ; 127

Service on a convict in State's prison is good 127,

i . In action against a sheriff for an escape it may be served on

the under sheriff . : ,. •. 127

Service in an action under chapter 185 of 1857 128

Placing the summons on defendant's shoulder, sufficient. 128

Throwing the paper near the defendant 128

What constitutes leaving process in hands of person served .... 1^8

Depositing papers in a chair not a good service 128

Service by violence bad — how made on a, party who refuses to

receive the papers . ; . i j .... I 128

Madfe by a, private person, who wrongfully enters the house of

the person served : 128

Serving a, summons concealed in an envelope — not good 128

Jurisdiction — court has no jurisdiction where a. Summons is not

legally served 129

servic^ of summons the only way of bringing a party into <;ourt

' against his will '. 129

Service of summons on holidays mentioned in chapter 30 of 1881 129

SArviceof a summi6ns on an election day m void 129

As to charter elections '. 129

Admission of service by a party out of the State will not sustain

proceedings in personam 129

Personal service out of the State — effect of 129

Joint debtors — ^ one not within the jurisdiction of the court. . . . 129
Admission — of service signed by a party (not an attorney) must

be a,eknowledged or proved : 129

Appearance — voluntary appearance and appointment of a guardian,/ I

for an infant, good 129

What answer waives a defect of jurisdiction over the person.. 130 •
Service of process upon a ndn-resident voluntarily submittihg

himself to the jurisdiction of the court — when set aside. ..„ 130
What answer is not a waiver of a want of jurisdiction over the

person . . ., , 130

What is not a voluntary appearance 130

"51 • • • : ' ■■''

800 Index to ]!^otes.

' [See index to the rules, anie, page 709.]

PROCESS— (Continued): page.

Irregular service — a summons cannot issue for an infant plaintiff

until the appointment of a guardian ad litem - ■. . . 130

Otherwise the service of the summons will be irregular 130

Service by a party a, mere irregularity. . . . , 130

Irregularity must be taken advantage of, by motion 130

, Privilege of witness muslt .be asserted at the first opportunity. . . 130
Objection that a sheriil did not make service — when to be taken. 131

Suit not regularly commenced — the remedy is by motion 131

A pretended service, avoided by motion 131

Objection to service of summons cannot be taken by answer or

dettmrrer , ' 131

Irregular service' cannot be set up in the pleadings 131

Where defendant has attempted to evade service, what evidences

o-f nonservice will be required before the judgment will be

Vacated . . ' : 131

Service set aside where the defendant was induced to come into

the State by a trick ^^ • • - • 131

Service on one inveigled into the State set aside 131

^et aside wh«n the defendant was induced to come into the

State for the purpose of procuring his arrest — action not

dismissed . . . ; , 132

What acts, inducing one to come within the jurisdiction of the

court, constitute deceit ' ■ '. . . . 132

Witness invited to.attetad a settlement, protected 132

The witness must have come into tlie State Voluntarily. . . ... . . 132

It must appear where the witness came from 132"

Service on a witness before. a legislative committee, set aside.. 132
Servite on a ■ nonresident witness claiming to- be a ci ti:?en of

New'York . . . . 132

Service oh' nonresident attending as a witness in this State is

bad ■ , 133

Attending trial_at a circuit out of his county ' , 133

, Service upon a witness in a cause in the United States court.. 133
The court. has inherent power to. prevent service on its officers.. 133
Laches — what laches precludes the defendant from moviiig to

■sat aside a judgment for nonservice 133

Substituted service — an order therefor is not an order granting a

provisional remedy 133

Act applies to infants . 133

Order for 133

iSufficiency of an affidavit to obtain the order 133

■Service on hjuabandi for wife — when service in foreclosure on u Ims-

band is good service on his Avife 134

In 'foreclosure suits service on tlie husband when good service on

the wife^ 134

Index to jSTotes. 803.

[See inilex to the rules, ante, page 709.]
PROCESS — (Continued) :

Service on husband for wife — (Continued): page.

Service of subpoena-in 1838 upon a husband to give to his infant

' wife constituted good service upon the wife 134

Service on conporations ; — on a domestic coriporation 'l34

Service on. managing agent 134

Who is a managing agent 135

A general agent is a " managing agent " of a' foreign corporatiojl. 135
A general superintendent of a domestic telegraph company is . . 135

A general superintertdent is 135

Who is a, managing agent of an insurance company 135

A superintendent controlled by the home office 135

" Representative," when not a managing agent 136

A ticket seller is not ....>> 13i6

A baggage mas)«r is not ^. . 136

Service on a telegraph operator, insufficient 136

Service made on an employee, insufficient 136

A superintendent of soliciting agents is not a managing agentv. 136

Kelation of an attorney not that_of an agent 136

Form of affidavit of service • 137

Who are officers de facto of a religious corporation, on whom

■ service may be ■ made 137

Service on railroad corporations 137

On express companies 137

, On a board of supervisors 137

On foreign corporations' 137

■Foreign insurance company, before doing business in this State. 137
Life or casualty insurance corporation upon the co-operative or

asses.9ment plan 137

Designation of person upon whom to serve a summons 137

Irregular designation of a person on whom process may be served. 137
, -Service on the insurance 'superintendent, for a. company not ad-
mitted to do business in the State 138

Ah admission of service by the superintendent of the insurance

department is sufficient 138

Clerk appbinted by the superintendent of a foreign 'fire insurance

company to take service 138

Statutory method of service on superintendent of insurance de-
partment does not preclude other methods 138

■ . In default ot- designation, service on the counsel of a foreign

corporation is good 139

'V ' , Service, how made on a foreign fire insurance company 139

Served on " managing agent " 139

On the secretary of a, foreign corporation . .' r 139

On the cashier 139

8'02 , Index to Notes.

1 [See index to the rules, arete, page 709.]

PROCESS — (Continued) :

Service on corporations -7- (Continued) : page.

On a director in an action under chap, 185 of 1867 139

On a, nonresident director of ' 139

Upon a foreign corporation, by serving its president temporarily

in this State not on business of the corporation 140

On » corporation under the statute 140

■ , On a president after he has resigned 140

On a, director who claimed to have resigned ■-. . . 140

J On a director who had resigned, thougli this reduces the nurnber

ibelow the legal minimum 140 "

On a de focio president of a corporation pursuant to stipulation. 140

On an oflSiOer of a corporation wjio had surrendered bis stock. . . . 140

On the cashier of a bank whose charter , has expired 140

On the grand forem,an of the A. O. U. W. is'good 140

Property of the corporation within this State is essemtial to an

order for publication. , 141

Service on a resident director of a foreign corporation — wh6n

bad ,'. 141

No personal judgiment against su foreign corporation — when. . . . 141
What must be shown by a corporation seeking to set aside a

sei-vice on its alleged agent '....» 141

Temporary receiver of a foreign corporation appointed under serv-
ice on a managing agent 141.

Greneral manager \ ..... .' 141

Attachment^ — where levy has been made the suit will be upheld,

tlubugh no summons has been served. . .• ,'.; 141

Affidavit- need not show that an action has been''begun: 141

When attachment ' and levy not sustained because of nonservice

' of the summons On the defendant, who has died 142

Judgment — what is a sufficient service upon a corporation to support

a judgment 142

Delivery to deputy shei^ifr — is good service on tlie sheriff 142

Purchase of land sold under a void process. 395

PKOOF — Of service. See Pbocess.

PUBLICATION — Of rules 10

Of uo'tice of sale ; 378

REAL PROPERTY — Power of the court to direct" .sale of infant's realty. 348

Publication of notice of sale. ; .• 37S

Sale — judicial sale of real property 379

Inverse order of alienation , 380

Notice — of dtefect in judicial sale 3S1

Resale of ■ 382

Proceeds of sale, in partition — when real estate .,.;..... 407

1 . 'Computation of value of contingent dower right r. . . . 414

'«

Index ' to ISTotes. ,' , 803

[See index to the rules, ant^, page 709.]
REAL PROPERTY— (Continued) : page.

Sale of infant's real property. See Infant.
See MORTjJAGE Fobeolosuee; Pabtition.

REARGUMENT — Of motions and appeals 285

RECEIVER — Of rents and profits -- in foreclosure 371

General provisions -^ a receiver is ah oiBcer' of the court 434

He must obey the orders of the court 434

The monej- in his hands is held in custodm Idgts for whoever,

may prove title to it ,■•••,■■ '. ■ 434

Receivers of insolvent corporations -- rights of 434

Liability of receiver 434

Appointment of a new receiver, in case of the death of the

debtor and first receiver 434

Motion to compel a receiver to sue ,: . . . 434

Application lor leave to bring an action in the name of a receiver

in supplementary , proceedings 434

Clerk of J;he court only appointed receiver by consent 434

Limit of a receiver's recovery 434

' Appointment cannot be attacked collaterally 434

Appointed in an action to set aside fraudulent conveyances .... 434

Eight to bring action 435

No extra-territorial power 435

Cannot sue in foreign jurisdiction 435

Payment of claims 435

Prosecuting action 435

Accounting 435

, Foreign receiver cannot maintain action lor appointment of

ancillary recetver 435

Action in the name of the corporation 435

When entitled to affirmative judgment .' 435

Appointment of a receiver is no bar to an action against the cor-
poration . . 435

Rights of aejiion in a receiver, as regards fraudulent convey-
ances by his debtor 436

Action by temporary receiver of an insolvent corporation to

recover moijieys obtained under au unlawful preference. .■ 436

May select the court -' 436

Suit by a particular attorney 436

When authorized, is bound to bring suit — should not be re-
strained .' 436

Leave to sue improvidently granted 436

Should not sue without authority of court '. . 436

Authority to defend an action must be given by the court itself. 436
Receiver of a, bank may siie its directors for gToss negligence: . 436
Order directing receiver of a bank to sue the directors will not
.be reversed on an appeal by the directors ! 437

804 Index to ITotes.

[See index to the I'ules, ante, page 709.]
RECEIVER— (Continued): " page.

Costs — incurred by a trustee .".... 437

A receiver who has prosecuted an action in good faith is entitled

to costs , ' ■....../ 437

If leave not granted, personally liable for costs 437

^^^ant of funds to pay Costs — evidence of bad faith in bringing

action 437

Not sufficient ground to- compel payment of costs personally.. 437

V Assignee in bankruptcy — liable for costs ' ' 437

Personal liability for costs incm-red by his unnecessary defense

t — notice '. 437

Costs not personally charged against, vpithout ' special order 438

Order for payment of costs out of fund 438

Liability where he continues an action 438

A receiver cannot enforce trust resulting to creditors, where the

debtor pays for land conveyed to another 438

Two receivers — of the same property, not appointed 438

Second receiver may be appointed -i > 438

Seco^id receiver in foreclosures ' . . . 438

Reference as to claims — may be without his consent 438

Enforcement of claims against a receiver 439

Funds in a receiver's hands — paid out on motion. . .^ 439

Receiver, after order for publication of the summons — appointed

without notice • 439

Relative rights of a prior mortgagee and a receiver appointed with-
out notice for a junior mortgagee . « 1? 439

Receiver in supplementary proceedings — appointed only on notrce. 439
The title to a judgment-debtor's real estate vests by operation
of law in a recejver appointed in supplementary proceedings. 439

Such receiver should not determine adverse claims 439

Both debtor and creditor are represented by •..-/., 439

He takes title only to real estate in this State ......'... 439

His title is superior to that of a Ijona fide assignee, after the

filing of the order 440

When not appointed 440

Tlie order, made without, notice, cannot be questioned collater-
ally ■ : 440

Notice to the attorney of record of the debtor, insufficient 440

Where tlie order appointing a receiver in supplementary proceed-
ings is to be filed 440

Hi.s title is a qualified one 440

Of rents and profits, has no power to pay for repairs 440

A receiver held liable for rent, when . . . . ^ 440

Where in an action to set aside a conveyance in fraud of creditors,

the ri'ceivpr cannot I'ecover ri^nts and profits 441

Equitable interests pass to .i receiver 441

Index to Nqtes. 805

[See- index to the rules, a»«e, page 709.] ,
RECEIVER— (Continued): • ' page.

Tlie court ui^y' forbid interference witli tlie property in the receiver's

, hands , . „ , . . . . 441

Motion to determine right to funds — in what district to be made, 441

, Teinporary receiver — of a ' partnership, right of 441

Powers of a temporary receiver j 441

How far the title to corporate property vests in him 44:2

What must be proved i before appointment 441

Not for purpose of ousting a partner from manageinent. 441

In foreclosure proceedings 442

Ancillary receiver 442

Receiver's title to property 442

■'Failure to file bond 442

- Commissions of ' 442

Instructions — a receiver is entitled to : 442

Application by a party not interested, disregarded 442

^ Cdntempt — to sue a receiver without leave. 442'

Action brought without leave -=-, good until the court interferes.. 442

The court has jurisdiction although the suit is without leave .... 442

; ^ • Interference with a receiver in collecting rents is a contempt... . . 443

Refusal of adjudgment debtor to deliver goods". . . . v , . . . . 443

Interference Avith ■ the receiver's possessioij. .......' 443

Failure to pay to a receiver as directed, money deposited in the

name of the debtor's wife . , ' 443

When a failure to appear on an adjourned, day is not a contempt 443

A receiver's right of action — dependent on the filing of his bond .... 443

Corporations ^-receivers of 443

A -receiver not appointed unless a clear necessity be shown 443

limitation on the power to appoint a receiver of a corporation . . 443

Default in interest justifies a receivership 444

Formerly the title to corporate property did not vest in a tem-
porary receiver .''... i. . , 444

How far the title to corporate property now vests in him 444

To what property_ the receiver takes title ,.. . .,'. . . 444

How far his appointment dates back V. . . . . 444

\ Property transferred to a receiver 444

Relative rights of a sequestration and mortgage foreclosure re- ,

ceiver in future earnings 444

By what act a receiver does not make himself a party to an

action' against the corporation ' 444

Not inade a party after his final discharge 445

Not a necessary party to foreclosure '■ '.s ■ • ■■■ • ■ '^'^^

Receiver's certificates, issuing of ■ . . V.^. .... 44,5

. Enforcible only in the court directing their issue^. 44.')

'Eflect of a receiver's certificate on a prior njortgage lien 445

Authority to issue certificates of indebtedness. . . ,. 445

806 IlCI>EX TO NoTFjS.

[See index to the rules, ante, page 709.]
RECEIVER — (Continued!) : • ^ •,

Corporations — (Continued): ' page.

A judgment should be, entered against him as receiver and not
personally — when it may be so entered after he has been

discharged as a receiver , 445

Receivers of a corporation — in what district the application for

the apbointment must be made , 445

Act of 1897 limiting to receivers the right to enforce the lia-
bility of stockholders ' in a bank 445

Receiver of foreign corporations , , 446

Power of the courts of the State of New York 446

Domestic creditors only represented 446

Where a receiver of a foreign corporation will be appointed. . . . 446
A receiver of a national bank, not a foreign receiver., ......... 446

Receiver of insolvent insurance corporations '. 446

Advances by a receiver to a corporation , . 446

ILoan to a receiver of a corporation whose appointment was void . 446
Appointment iby a final judgment supersedes a prior appointment

of a temporary receiver in another action. . . . , , 447

Receiver's disbursements in preserving property 447

Preferential payment, when not, proper for supplies 447

A receiver may assert the unconstitutionality of a statute of lim-
itations, . . . 447

When court will appbint receivers of corporations 447

Duty of court T 447

Deputy attorney-general as receiver 447

Foreign corporation " 447

, Receiver pendente lite 448

In action for sequestration of property of domestic corpora-
tion ' 448

Misconduct of officers .....'.... ^. .. . 448

Commissions — by what statute governed ' -. . . . . 448

Determined by the law in force at the time of the appointment

of the receiver 448

Commissions of a temporary receiver- — by what act governed

and on what computed 448

Receiver's commissions — amount thereof 448

Allowance, increase of, when less than $100' 448

Motions affecting receivers — sequestration of the property of a

corporation, appointment of a receiver 449

; Service of papers on Attorney-General 449

Receiver — notice of motion for his appointment 449

Title to real estate 451

Attorney — employment of, by receiver 45'!

Who should not be employed '. . 452

Employment of a receiver's piirtner 452

Indtjx to !N"otes. 807

[See index to the rules, ante, page 709,.] , '

I^pieiVER — (Continued) :

Attorney — (Continued) : . ' /; . page.

; Commission to take' testimony — the, rule is not applicahle to.. 45f2

A stranger cann,ot object , . . . 452

Compensation of .' 452

KECORD ^ Destruction of records ,. . , .1 ...:■.:.. . 49

Business hours of county clerks C6

Entry of judgment . . . 66

Of judgmenits f. . . 66

Affecting judicial sales ■ • • •, 393

Of mortgages and assignnients , thereof. See Mobtgase Foke-'
CWSUEE. ' ^ ,

REFERENCE — ^ Power to compel inspection not delegated to a referee.. 101

Residence of referee — vfheve the referee- may sit 176

To take an account and report, also to decide certain , questions . 176

Power of the legislature to authorize it 176

,New_ referees — of claim against estate . ...;.;. 176

■ Books not required to be left with the referee .......' 176

Order of reference of action made on pracl^ice motion ...'.. 176,_

Form of order of reference to settle issues of fact preparatory to

taking testimony 176

Qualification of referee '. "■: 450

Referee disqualified —r- by reason of having acted in a former action

between the same parties 177

When a referee's report will be set aside because of bi'as and,

prejudice .;........; , 177

Misconduct of referee — disqualifying him to settle the case on

.appeal .{.-' 177

When waiver is final 178

Report — when judgment is entered without authority, and when it

is void for error of referee 178

Testimony accompanying the report, if not in full, should present

the substance of what is material ,,. . . ,. 178

Referee's report, on reference to state an account IT"

Finding of fact, included in conclusions of law , 178

Finding inconsistent with the pleading^ and the evidence —

when judgment set aside because of. ....... 178

' What findings required ,.^,.,f; . , . . 179

' '. Omission to state a neoesskry conclusion of law. ...'...' A' ;ii-jj-;.'. . 179-

Finding that evidence "leaves the mind in doubt" 170

! Reference to determine issues in aii accounting IT^

When findings necessary 170

Report, not excepted to, may be canceled. . . . : ■. . . 1 Trt

' . ; Ambiguous findings — so construed as to sustain judgment.-..-. 17fl

Upon order entered upon remittitur of Court of Appeals 17;t

Filing of report terminates action, 179

\ ,

&08 ,' "ir ■ >■ Index to JTotes. -- '

[See index to .the rules, ante, page 709.]
REFERENCE— (Continued): * "V.

Report' — (Continued): ^ - page. •

Report cannot be filed after death of referee 17!)

6n the trial of a demurrer or on a nonsuit. 179

' On the trial of an issue of fact 179

When thSre are several referees a majority may sign the report. 179
' Confirmation of report — report- of deficiency on foreclosure —^ need

not be confirmed — 'further judgment .T ."..... 179

Report of sale in foreclosure — how far confirmation is_ necessary. 180
Surplus money proceedings ^-, notice to all claimsunts necessary.. 180

■When the report becomes absolute. .'. ' 180

If exceptions be not filed '. 180

Findings of referee not conclusive on the court 180

Questions presented b.y an appeal'. 180

Ex parte oomfirmation improper T 180

Notice of a motion to confirm report — when premature 180

Where made in the first department ^ 181

How terminated '. 181

> Failure of a referee to file his report — what excuses 181

^- What is a sufficient delivery of a referee's report. . . .• , 181

When notice to terminate the reference is ineffectual 181

Filing of report ends reference ' 1-81

Findings .^. ' .' 181

Referee to 'be sworn — not in a foreclosure action. . 181

' In. the case of infants '. ISl

The omission to take the oath is a mere irregulajrity — proceed-'

ing In the cause is a waiver of it ! -^ ;. 182

Rule is not chaniged bj^ section 1016 of the Code of Civil Pro-
cedure, except where there are infants or parties not repre-

. sented i ' IS'2

Neglect — how cured 1S2

Fees of. referee — paid by receiver out of fund 182

Stipulated sura "for every hearing" — meaning of 182

Stipulation that a referee fix his own fees is not sufficient 182

Several actions : 182

Referee may insjst that his fees be paid before delivery of report. 182
Fees may be recovered by referee, though report was not file(i

in sixty days 1S2

Presumption on appeal, as to the number of days employed. . . . 182

Stenographer's fees , . . 182

Signing testimony — ■ the remedy for the failure of a witness to sign

* the testimony is by motion . j... .,.• ■ , 183

' Filing testimony — testimony must be filed with the report........ 183

Chancery practice — review under ,"'. . 183

Attorney's lien — reference to report on 183

Index to Notes. 809

[See index to tlie rules, ante, page 709.J
' KEt-ERENCE— (Continued) : page.

Injunction — order confirming report of referee as to damages from ,

injunction — not to provide for their payment 183

Waiver — proceeding with reference^ a waiver of what '. 1,83

Insanity of referee , ^ . , / ■ ......,..,■;.. 183,

Pirst district — procedure in the first "district as to tlie filingot re-
ports, except on reference of the issues. . . . j' 183 ■

In the first district a motion to confirm a report, ut what

. Special Term to be made : .'. .,.■., ,.. 1,S4

. . Powers of referee V. . . 184

Removal of referee ^ 184

^ Additional allowance in actions tried before a referee. 310

In foreclosure . . . . : 361

Wliat notary cannot be referee to sell.....^ t *.'.;. 39.5

- ■■..Pjroceedings on reference in surplus money proceed,ings . . . 402

To take proof of title in partition . . . . -. 408

In matrimonial actions , !' . . ' 422

' REGISTRATION — Of attorneys ..L, , . . , 36

RENEWAL OF MOTION. ''See .MoTiox a>d Order. - ,

Report — Of referee ..:......,;■.." 178

'Confirmation of :' 17!)

Of. referee in foreclosure ,,.!,... •. .. 364

resettlement — Of case on appeal '. , . . , . . . . .'!'.-. , . . . . 22.S

return — Of process ' .". ...'. i;' .' .':,.;. 61

■ Correction of ., ■ ," . f. , . 62

Excuse for not making ■'■■.... , . . . . 63

Of J)apers, for irregularity :...... 147

RULES — Adoption, revi,sion and general construction of rules 7

General Rules of Practice — what they may prescribe . ••..'.. 7

They ' are applicable to special proceedings . . . ; 8

Power of eonventi<)ti — ^it may alter the previous practice. . S

No law-making power is delegated to the convention..,.'....... 8

It cannot make a rule inconsistent Avith the Code.'. '; ... 8,

It cannot alter a statutory provision 8

Power of the courts — matters of practice in the first instance rest

in the discretion of the court .' 8

They ultimately become governed by the custom of the court. . 8
The several judicial districts have no power to make general

rules ". ;. ''8

Inherent power of procedure — the court may adopt whatever pro-
ceeding is essential to enable it to exercise its functions , . : 8

Jurisdiction conferred by the Constitution — constitutional power of

the Supreme. Court cannot be limited by the Legislature S

POrmation of the Appellate Division .;..., 9

.Cases not provided for — ^ the practice. of the King's Bench governs.. 9
' . ' ■ . 'I

810 Index to ISTotes.

[See index to the rules, ante, page 709.]
RULES— (Continued): - page.
Pre-existing practice — wlien not deemed abrogated by a rule con-
taining no saving clause - T. 9

General rules followed by the Court of Appeals — exceptions , !)

Effect of rules is that of statutes '.'. 9

Disregarding rules — > when court may disregard its rules 9

By what, court construed — Court of Appeals will not review a de-
cision of the Supreme Court in reference to on£ of its rules, .v-' 10

. Bach court is the best judge of its own rules. .10

Construction of amendments to rules analogous to that of amend-
ment of statutes , 10

Construction given to statutes by rules — -publication of rules 10

Rules of the City Court of New York . . .' 10

For the adniission' of attorneys .' . ,34

Further rules by 'courts 460

SALE — Of real estate of infant or incomp.etent. SeeJNFANT; Judicial
Sale; Heal PROPnaiTT.

SCiANDALO'US MATTER — Motion to strike out -. . . 152

SEPARATION. See Husbaki) and Wife.

SEQUESTRATION — Of corporate property — how far the title to real

■ estate vests in the corporation i 4.51

{SERVICE — Of order of discovery ' '. 114

Of notice of motion. See Motion and Osdeb.
Of process. Se6 Pbooess.

SETTLEMEIJT — Of case and exceptions 221

SHERIFF — Cannot become bail .' - , 59

Receipts for process ,. ; 60

Delivery to deputy, ..ii//: ■ ■ 60

JReturn *of procsss . , T , . . \'.J'„',. ... .' . 61

Correction of .retui-n , , ..!... 6^2

' Excuse for not returning. . . '. 63

Presumption that writ was executed during its lifetime 63

SOCAGE — Guardian in. See GtrAEDiAN and Waed.

' SPECIAL PROCEEDING — Entry of judgment in 166

STATUTE — Construction given to, by rules 10

STATUTE OF LIMITATIONS — In relation to foreclosure actions..... 361
STAY OF PROCEEDINGS — Pending appeal from order making plead-
ing more definite and certain or strikingi out a portion thereof.... 157

Stay generally — Rule 37 applies only to Trial Terms 270

^ Successive orders staying more than twenty days — imprc^ef . . 273
An order extending the time to answer is not a stay of pro-
ceedings '. 273

Nor is" an extension of time to make a case and exceptions 273

Nor is a motion for a new trial I 273

Undertaking on appeal from an order denying a motion for a
new trial will not stay proceedings under the judgment ?73

' Index to Notes. 811

[See index to the rules, ante, page 709.] :
STAY OF''PROCE£DINGS— (Coutinucd): ,

Stay- generally — (Continued): page.

Order panting stay in foreclosure, without requiring security,

reversed 274

■\^^len granted, in order to allow a party to move for a special (

V jury.. ... ' ' ' 274

Non-payment of costs of motion* an ahsolute stay . , 274

No presumption that the costs of a motion are paid 274

Stay for , non-payment of costs waived by notice of trial 274

Effect of a stay of proceedings until payment of costs 274

Relief for refusal by Trial Term to strike case from calendar ia

not by appeal '. . 274

Stay of trial at Special Term within the rule 274

Terms upon granting a stay. . . . 275

Pending an appeal. ., ;...;:.' 275

. Whea it ceases to operate 275

' When it is not terminated bj^ the decision . . . . 275

When a decision terminates the stay, before service of the order. 275

In partition or foreclosure — order returnaf)le in less than two days .

— irregular 409

By a party not in possessioij nor adjudged liable for a deficiency . 409
Foreclosure sale of an undivided interest ^- when npt stayed .... 409
Sale not stayed to await the determination of condemnation pro-
ceedings ^ 409

When a stay may be granted by a judge out of court 409

Undertaking conditioned against waste — when effective as a '

stay L:- ' 410

STENOGRAPHER'S MINUTES , . , 2.54

STIPULATION— Verbal stipulation — in court ,..'....;. 91

Before referee .". 92

Out of court — ■ void . '. . .' 92

Agreement to settle ' 92

Agfeenjfent to waive irregularitiea 92

To -postpone a trial or notify counsel for a criminal 92

As to matters collateral to the action 92

:, ^ As to disbursements. 92

Effectual by estoppel — when party has been misled,. 92

Aypidance of, on the ground of fraud 92

When relieved against by the court 92

When the court may set it ftside 92

■ Efficiency of — 'en&rcement of a stipulation that a decision shall be

final ...:. '. . 93

■ Stipulation as a cause of action 93

Judgment" modified under a stipulation — effect on, of an appeal ■

and reversal of .the judgment i . . . . 93

Use of stijpulation upon sefcond trial ,■ • • '93

812 Index to Notes.

•
[See iudex to the rules, aiiie, page 709.]
STIPULATION — (Coiitiiiued) :

Efficiency ol — (Continued) : • page.

Power of 'the attorney-general to waive right to appeal 93

Stipulation not tp appeal . . . .- 93

Violation of stipulation — effect of 93

Abandonment of stipulation 93

STUDY — ■ Course of, for admiasioa to the bar 34

SUBPOENA — For witness to obtain testimony under depositions ; . . 122

SUBPCENA DUCES TECUM — Discovery not, granted where it would

suffice : 100

SUBROGATION — In foreclosure . . ._. 370

SUBSTITUTED SERVICE — Of process-. 133

SUBSTITUTION"— Of attorneys . . . : 79

SUPREME COURT —Constitutional jurisdiction of . . ,. 8

SURETY. See Unbertaking.

SURPLUS MONEYS — Arising on sale of mortgaged premises ,. . . . 397

SURROGATE — Power to compel inspection 98

Respecting surplus miOneys in foreclosure 373

Case on appeal from Surrogate's Com-t . 218

TAXES — When foreclosure will not be decreed for non-payment thereof. 374

On property sold at a judicial Sale. 387

TIME — -Additional time to serv'e pleading. .-. 160

Computation of . . '. ., 161

Of making ease. , 217

Extension of tinle to serve case 360

Of arguing motion., , »■ 279

TITLE ' — Obtained under a judgment in . foreclosure 373

Acquired on . a foreclosure' sale 395

Abstraqt of, in partition j .1 , 408

TRIAL — - Opening and closing case — : a legal right 168

Right to open and close, a substantial one 168

Test of the right ' 168

. Its denial requires a reversal , 169

Refusal to instruct a party to take. the afBi-mative 169

Error in allowing the affirmative, cured 169

When the question of relative right should be presented 169

Right, how determined .- 169

Defendant must claim the affirmative upon the trial of the

action . . • 169

Issues under -whieli, plaiutiflf has the affirmative 169

Where exemplary damages are allowable, the afiii-mative is upon

, the plaintiff " . 169

.What decides the. right to open and close 169

Where plairatiff has right to open and close an .action for rerit. . 170

Issues -under which the defendant has the affirmative 170

Allegations of tlie complaint adimitted 170

' Index to ]SroT:Es. 813

' , [See index to the r\iles, ante, page 709.]

TRIAL — (Continued) : . . ' , page. '

In an action for rent. . . ■. : .1. 170

Time allowed for arguments, discretionary. . . . .' 170

Time aJlowed — how dbjection should be taken , ... . WO

Counsel limited to points in issue. . . , , .■. . 170

Reading a book _. ^ .. . . .' ,. .■• 171

Case muat disclose what he reads ....;. , ..,1 ! 171

Reading from a law. book .<.'.... .'. . . 171

Reading an opinion of the Court of Appeal.*. . : .' 171

Reading an opinion ' given on a former appeal ,„,....... 171

Reading a newspaper article ....,:."'. ^ ..■.. . 171

Interference by the court with counsel. ;..."..'..... .i. . 17il ,

Interruption of the summing up by the judge . . .■ 172

Statemielit of .counsel -. 172

Right to open and' close ,......: 172

Exajiiining witnesses 172

Handing exhibit to jury 172

Improper remarks of counsel 172

Proof — order of, determined by the court 172

The court may limit the examination of a. witness. . . r; 172

What limit may be imposed' . upon a cross-exaimination 173

Cross-examination on irrelevant topics 173

' Witness to rema.in until the case is closed' 173

Readily dcipositiou , 173' ' '

Explanation of absence of witness 173

Disoontinuajicfe — after allowance of alimony and counsel fee to de-
fendant ......,./...■ 17.5

Counterclaim- , .'■....., 175

Extra allojvance 17.>

Proper remedy on referee's dismissal of the complaint ■. . . . 17-5

Right of defendant to withdraw a counterclaim 176

Fedgned issues — to what case Rule 31 isi applicable 186

Former praictice — ^ not changed by the C'odfe 186

Submission of specific questions, the findings are not conclusive .'

on the court . : ,. . . ■ 186

Conclusive, unless a new trial is moved for. . ,..,...,. 180

Jury trial in equity cases ^ how secured on a qounterelaim . . . . 186

Equity lactions hot covered by Code of Civil Procedure, § 070. . 186

Action tij set aside a, deed — second motion for new trial 187

'Settlement of issixes . . . . , 187

''S; Motion, when not pi-emature ■ . : _...:....■.. 187

'^'■i 'Motion for jury trial, must be. made within the prescribed time. 187
'*- , Power of the court to. order issues to be settled although more

than ten days have elapsed! since they have been joined 187

>^l-i Index to Notes.

[See index to the rules, aate, page 709.]
TRIAL— (Continued): , . page.

When application for, granted ^ ] K7

May be directed after the case has been submitted 187

Power not affected b^ Code of Procedure, § 267 187

When application for, not granted 188

Not after trial 188

Issues as to the terms of a partnership — should not be fi'amed

until after the accounting . . .' ' 188

Motion to set aside a judgment — ivhen feigned issue not to be

directed 188

Notice of trial at Special Term — not a, waiver 188

Form of order — of reference to settle issues of fact 188

Review — - of a refusal to' Settle issues — proper remedy 188

An order granting trial of feigned issue is discretionary...-;.... 188
An order setting aside issues and directing others to be settled,

is discretionary / 189

The manner of trial in equity cases rests in the discretion of the

court . . . 189

Denial of motion for new trial of special issues is not appeal-
able ' : 189

An order directing the trial pf issues is 189

Motion for a, new trial necessary '. . . . . 189

Defendant not obliged to move to frame issues in a divorce

auction . . . . J 189

Jury trial — the right thereto is determined by thef court, not by the

parties . . . ._ ; ; 189

When a party is, entitled to a jury trial .■ 190

Wlien a party is not. -. '. 190

When the right to a jury trial must be demanded — laches 109

Equitable action — issue of damages — when triable by a jury.. 190
Jury trial' where equitable relief is sought in an action for a

nuisance — order granting new trial appealable 190

Action gi-owing out of doctrine of subrogation when triable.... 190
If a, case embraces > both legal and equitable claims, the whole

case must go to the jury ' 190

Action for both legal and equitable relief 190

In what case defendant- is not entitled to have issues framed

and tried at law , •. 190

Action to foreclose a mechanic's lien 191

Past damages done by an elevated railroad ■. 191

.\ party not entitled to equitable relief may have a trial at law. 191

Waiver of a jury trial , 191

PoAver of the court over the verdict on a feigned issue — not a trial

of the issue '. 191

Motion for a, new trial necessary 191

Motion for new trial — newly-discovered evidence 191

Index to jSTotes. 815

[See index to the rules, ante, page 709.]
TRIAL — (Continued) : page.

Power of the court over th% verdict on a feigned issue — (Continued) :
The General Term cannot set aside a verdict, whe^e no j,pplica-

tion therefor has been made below .' . 191

Acquiescence presumed, in a case a motion is not made ' for a

new trial . 192

Conditions imposed on granting a, new trial — a mere tender of

' performance is insufficient 192

^ Pull costs are allowed where a motion for a new trial is made

on a case '. '. 192

Dismissal of complaint — not proper on the trial of issufts,

settled , ; 192

Motion for new trial, upon what terms granted'. 192

Improper statement of counsel to jury — ground fOr new trial. 192
Error in rulings on the trial of feigned issues where the verdict

is made the basis of the judgment — effect of " 192

When the judgment in such case will be set aside 192

A motion must be made before commencement of hearing directed

by interlocutory judgment 4 . 193

New trial granted ou wrong reason 193

Third trial .' 193

Partition — action brought under" chapter 238 of 1853- — issues settled 193

Findings — court may still make findings 195

Requests to find no longer authorized 195

Upon whom findings of fact are binding 196

Trial by the court — findings of fact and conclusions of law must be

made and signed , 196

Facts not found and not asked for, not grotad for reversal.... 196

Negative fact& need not be found 196

Evidence and argument improper 196

Findings where a judgment is rendered on the pleadings 196

AVhere the complaint is admitted to be true/. 196

Additional findings — cannot be made on the settlement 'of a

case 196

• J Ambiguous findings construed to sustain the judgment'. .„ 196 »

Difference between opinion and findings 196

Inconsistent ruling 196

To reverse conclusions of law, the facts found must be inconsist-
ent with them 197

Inconsistent findings to be reconciled 197,

It is the duty of the appellate court to harmonize them 197

Eight of the defeated party where the findings are conflicting. . 197

Irreconcilable findings construed in favor of the appellant 197

] Insufficiency of finding 197

Rule as to reviewjng facts . . j^ 197

Looking to evidence to sustain findings 197

816 Index to isoTiss.

[See index to the rules, ante, page 709.]
TRIAL— (Continued):

Trial Ijy the court — (Continued): ' page.

Conflicting evidence, findings not disturbed 197

Not reversible on facts by the Appellate Division 198

Reviewing findings , 198

Reviewing verdict 198

'Filing exceptions to findings not necessary where there is a

certificate . . , 198

In Comt of Appeals _ 198

Findings of fact sustained by evidence, not reviewable in the

Court of Appeals 198

Questions of fact in Court of Appeals — when it cannot be

raised .' 198

When on appeal from a, Surrogate's Oonint, the facts will not ;be

I reviewed "; » : ' 198

Fact, when found by the Court of Appeals .' . 109

Appeal on judgmenit-roll alone. 199

What is not a finding of fact :'. 199

A oonclusdon of law construed to be a finding of fact 199

Findings in State Court conclusive on alppeal to United States

Court : 199

Exceptions — necessary for review - 229

Requisites to objections and exceptions 229

An objection taken on specified gr(?unds, not considtered on others. 229
An objection taken after the question has been answered. ...:.. 229

Necessity of objection and exception 229

Conclusions of law cannot be reviewed in the absence of an ex-
ception '. 229

To present questions of law for revfew by City Court. 229

To the review by the Appellate Term of a judgment by the

The Appellate Term' can review facts und grant new trial.'; only

on exceptions properly taken ' -. 230

An appellate court will not review points not raised by u proper

exception 230

On appeal from an order denying ii new trial 230

Not to be first raised on appeal 230

Failure to file exceptions,' to the conclusion of the referee. ...... 230

Necessity of exceptions to a decision of fact .....'.,....;. 23Q

Failure to except to; a decision ; 230

'Exception to a decision ,...-...,....'. - . ■ ■ 230

Referee's decision not rovicwahle without exceptions ' ■ ■ 230

What reviewable where no exceptions are filed to a decision. . . . 230
Evidence taken on a reference — ^ objection to, on another trial. . 231
Must be taken toi determination of ofiicer having power to decide. 231 .
Failure to file — effect of 231

Index to ISTotes. 817

[See index to the rules, ante, page 709.]
TRIAL — (Continued) :

Exceptions — (Continued) : page.

' Exceptions to the report of a referee appointed! to take proof of
title in ai ^partition suit are requisite to an appeal to' the Court

of Appeals , 231

'.When a failure to take exceptions prevents reviewing eonclusiona

of lavsr , . . ., , , . 331

Appeal froim a judgment entered on a verdict 231

Exceptions to findings of fact — when good. •. . ...... 231

, Failure to request a finding oi fact — exoeptijon to a finding of

fact, unsupported hy proof ; ■.";.' . . . 231

Failure to except to findings of fact, andi conclusions of law . . . 231
"The findings of fact must sustain the judgment — otherwise an

exception to the legal conclusion is good 231

Exception to a conclusion of law svistained by the finding of fact.' 232
Exceptions to the decision of the referee present errors of law

only :■'. .232

Decision not reviewed', where there are no exceptions to the con-
clusion of law of a referee, but only 'to certain findings of fact. 232

Exceptions to findings of rfact and eonelusionis of law 232

■' 'Exceptions to findingsi of fact — improper 232,

Failure to except to conclusion' of law , ■. 232

In absence of exceptions, an appeal presents no questimii to the

court .. . .- 232

To incompetent evidfence — as effective in equitable action, as in

actions at law. ■ 238

Equity cases — when an error is not ava.ilable 232

Exceptions to evidence in equity causes, when disregarded. ;:. .-. . 232

'V\Tien not available on appeal •. 232

ilode of reviewing question® of fact and of law, after a trial by

,. the court without a'jury. 233

Exception to a direction of a verdict, after the close of th6 trial . 233

When there is nothing to review 233

Failure to file exceptions to a, referee's^report. . . . '. 233

^Evidence excepted to subsequently stricken out — effect 233 ^

A motion to strike out evidence, not one of legal right 233 ■

Exceptioil to 'denial i^f motion to amend' answer on trial, unavail-
ing ^ . 233

Error, to justify reversal, must prejudice exceptant 234

Sufficiency of exceptions taken on a murder trial — when the re-
fusal to strike out erroneous testimony is not ground for re-
versal 234

Power of court to review errors without exception 234'

Motion fpr a non-suit 234

'■',•'. ''A;',".- '

818 Index to Notes.

[See index to the rules, ante, page 709.]
TRIAL — (Continued) :

Exceptions — (Continued): page.

To review tli€s iraotion the ease must sliow a ruling and an ex-

' ception thereto 234

Effect of ex;oeptions to refusal to grant non^suit 234

When, exception based on general grounds fails 234

Exception to deniall of motion — review of evidence 234

Motioil for a new^ trial, when necessary for a review 235

Exceptions necessary, where a miction for a, new trial is denied . . 235

Exception to the denial of the motion for a new trial. . ' ?. . 23.5

. -- ' ' Appeal from judgment only , . 235 ^

Dfenial of motipn for new trial — not the subject of exception . . 335 ■

Office of an excepti<!)n 235 »

Review xipon the facts — an appeal from the order denying a

motion for a new trial is necessary 235

. When the order is not a-ppea^lable to the Court of Appeals 235

An appeal from an order denying a new trial necessary — an ex-
ception not sii^ficient., 235

Order must be. entered .-. 235

What exceptions appellant need not show 236

Exception to tlie order ^ denying a motion for a new trial when

the order , jtself is omitted from the case : ; 236

Where no order is entered the appellate court is limited to con-
sidering the exceptions taken at the trial. . .-■. 236

Appellate Term cannot review an order of the City Court of
« New York, refusing a new trial — it is limited - to the ques-
tions presented by the exceptions .^. ; 236 '

Further powers of the Appellate Term on appeal from the City

Court . ; ,'. 236

Power to grant a new trial in the absence of exceptions. . . : . . ..." 236

Court of Appeals — jurisdictional questions . . . : 236

On appeal from the decree of a surrogate, on the trial of an issue

of fact ' '. 236

Objections — Avhen to be made .' 23o

,;-, ■-..,.. Proper practice in taking 236

', J I, *-/• Failure to exce^it on a trial cannot be renijedied ; . . . . ?;. . . 237

Exception lies only to evidence admitted against, a party's ob-
jection L /,.... ■■. , 237

Appellant's exceptions, not reviewed 237

Objection, by the party benefited by an error 237

Ground on which objection is sustained 237

How objections to the reception of evidence should be made —
erroneous admission of evidence — when the decision will not

'be reversed therefor 237

Error cured by proper answer ......-;.' .'...; '. . . 240

Irresponsive answer 240

IifDEX TO Notes. ' , 819'

[See index to the i-ules, ante, page .709.] i^
TRIAL — (Continued) : • page.

General objection — wlien sufficient ; 237

Exception to a general finding that, one party was entitled to,

recover ■. 237

When the difficulty could not be obviated 237

Evidence received under a general objection , 238

Evidence in^idmissible for any pui'pose '...'.... 2:38

When a general objection is insufficient i 238

Objections that the evidence is defective must point out the

' ' specific defect 238

Effect of specific objections 238

On refusal of judge to subtifiit specific question of fact- to jury

— must be specific 238

^ Exceptions to a report as to an account — ■ should be specific . .' . 238

Exception too indefinite 238

Objectign that finding does not conforni to facts — too general. 23'8
Insufficiency of exceptions to present questions on appeal ...... 238

Must disclose l-eal ground 239

Exception " to the findings of fact and to the conclusions of law

of the referee herein " is too general -. : 239

Effect of a general exception tx> a referee's conclusions of law ... 239
An exception to a finding is not. availabjle unless it specifically

states the ground of error relied upon '. 239

Strictness as to taking exceptions to conclusions of law 239

Necessity of specific objections 239

Sustaining ruling excluding evidence on general ejiceptions. . . . 239
When exclusion of material evidence, under » general objection,

cannot be sustained : 239 ,

General objection to evidence — when overruling^ thereof sus-

t£jined on appeal .' 239

Crcneral objection as to damages, -when not good on appeal.. .. 240
' V General objection - — applies to the competency of the evidence,

and not to that of the witness 240

liistinction between cases where evidence is received and ex-
cluded Tinder 240

Objection to conclusion of trial judge, how raised 240

■ General objection to evidence which might become competent . . 240

General objection to a question proper in part 240

^ General objection to a question calling for matter of opinion

' from witness not shown lo be qualified , ,240

To a portion of a. charge 240

General objection not sustained by specific one 240

General objection — when not available on appeal 241 >

Failme to take obieetion — rulings still reviewable: '. . 241

' immaterial error — not a ground for reversal 241

Immaterial exceptions 241

Frivolous exceptions in Com-t of Appeals 241

^'2*) Tndex to Wotks.

[See index to the rule?, ante, page 709.]
TRIAL— (Continued): • page.

Reservation of an objection — duty of the party objeettng 241

Duty of referee to decide at the time when an exception is

taken 241

Eoxcfeption to the reservation by a referee of his decision on an

objection ;....,,.. 241

Reservation by referee of decision on exception ; .....'•. .; . . 241

Filing exeeptdons nwnc pro tun6 '. . .\ . . . . . 242

Exceptions filed nunc pro tunc — wlien. . , . '.V . . ,. 242

Decision suspended to allow application to file exception nunc

. '_/ pro tune ' 242

Objection to argument of counsel before jury.-. 242

Statement of counsel, in an action for libel, "of the recovery in

other actions . , . .,. 242"

Waiver of — ijiroof to show waiver of exception must appear in case. 242

When not stated in points or argued 242

No exception lies, to evidence, addressed to the court, upon the ques-
tion of admitting dying declarations ' 242

Exception — pr<)j)er way to review oixl'er of referee amending a

' pleading 242

< Objection to evidence — need not be repeated 243

Objection once taken is sufficient ■ \ 24:!

A specific objection to the admission of a, certain class of evi-
dence available although subsequent objections were general in

character '......' , 243

. Verdict, subject to opinion of General Term — exceptions first heard

, I at General Term , .' 243

',,•■, , /^Exceptions to be first heard at General Term — objection thereto

cannot be first made in the Court of Appeals 243

Order that exceptions be first heard at General Term — when un-
authorized , , , ■ i 243

Oral directions is insufficient 243

Exceptions to be first »heard at the Appellate Division ^ com-
plaint cannot be dismissed on inerits.: 244

Exception to nonsuit, to be first heard at Appellate tJivision,

implied ' 244

Neglect to except to order directing verdict and exceptions to be

heard at General Term , 244

Exceptions to be first heard at Appellate Division — what is a

sufficient certification 244

Exception necessary to raise objection to the failure to subniit case

to jury 243

Review, without formal objection to the dismissal pf the com-
plaint :■. 244

Exception to a denial of a nonsuit — -when waived '244

Index to Notes. 821

[See index to the rules, ante, page 709.]
TRIAL — ■ (Continued) : page.

Objection not talien below 244

Objections not raised on the trial . '. '......■. 244

A claim that^ the credibility of witnesses should have been sub-
mitted to the jury cannot be raised for the first time on appeal 244
When objection to lack of exceptions to a referee's report taken

for the first time on appeal, is unavailing , 245

Questions not raised below _. 245

An objection that the cheek mailed in payment of premiums was

not a good one cannot be taken for the first time on appeal . . 245
Objection to award of damages will not be considered first ■ on

appeal .' 245

Negligence,, as conclusion of law — ^ review in Court of Appeals 245

Power of Court of Appeal^ on appeal 245

Verdict against the weight qf evidence in criminal cases 245 ,

Exceptions to the denial of a motion for a new trial on the ground

of newly-discovered evidence 245

Bill of' exceptions in crimiJial cases 245

Settlement of bill of exceptions will not be compelled ■ in the ease

of an escaped prisoner 245

Failure to ishow that exceptions were filed 245

Exceptions ijot waived by offering evidence in rebuttal 246

Motion to amend case by inserting exceptions — where made 246

Sufficiency of exceptions — what reviewable under.. 246

Where none are taken to. the dismissal of the complaint or the
referee's conclusions of law — but only to the admission of

evidence on the trial , 246

Where a, .case contains none of the evidence ■ 246

Sufficiency of exceptions to raise questions oh appeal .■ 246

Exception to a sum allowed, raises question whether the ' entire

sum is proper 246

Single exception — when sufficient ! 246

State together 246

Report of interlocutory referee — review of 246

Exceptions proper to a report on a, receiver's account 247

Stipulation that exceptions were taken — ^not equivalent to excep-
tions 247

When, no exceptions He — to review errors on trial, exceptions need

not be taken to report ,*. . . 247

To refusal to find the particular facts making up the general

finding • •. 247

To referee's findings of fact ■ 247

AVho cannot except to referee's report ; 247

Error committed on trial cured — by instruction to disregard evi-
dence 247

Imprbper statement of counsel 247

Remark of the judge — the jury directed to disregard it ,. 247

Error in admitting incompetent evidence cured by subsequently
making it competent ; 247

822 . Index to Notes.

[See index to the rules, ante, page 709.]
TRIAL— (Continued): ^ page.

Exceptions to the charge '■ — to the jury 247

Necessary to enable the Appellate* Term to pass upon a charge

or request to charge 248

Error cannot be predicated to the judge's charge, without an

exception 248

Error iii charge — jilidgment reversed where no exception is

taken . ■. ,. . 248

' An error in the charge, not explicitly excepted to, is not a suffi-
cient ground for reversal 248

Eevers?,! for a misdirection to, the jury, even though no excep-
tion was taken at the trial 248

Case submitted to jury on erroneous theory — new trial granted

■without exceptions ....'. 248

Power of General Term to reverse without exceptions 248

Faililre to except to tha rule of damages adopted 248

Kight to require a charge upon propositions of law 248

Right of counsel to call the attention of the court to particular

, requests to find 249

' General exceptions to a number of refusals to charge, untenable. 249

Attention of the court to be called to the precise point 249

Sufficient exception 249

\STien a portion of a, charge is correct 249

When only a portion of the request to charge is correct 249

To the whole charge — when too broad 249

Objection to certain phrases of a, charge must be taken specifi:

cally ' , 249

Exception to charge — need not repeat the portion objected to. 249,
I^equest to charge, which siijiply repeats or separates the charge

already given 250

Grounds thereof need not be stated , 250

Where the error in the charge is harmless 250

A, statement by the judge of his recollection of the testimony. 250
.Statement by the judge of his intention to throw the case out

of court , 250

Comment by the court upon the testimony 250

An Expression of its opinion by the court 250

I. Expression of an opinion in a charge 250

Exception t^ specific proposition or remark of the trial judge

must be clear '■ 250

Ambiguous charge — exception to 250

Exception to the direction of a verdict sufficient — not necessary

to demand submission of facts to the jury. 251

General exception to the direction of ' a verdict — when insuffi-
cient 251

A single exception to adverse rulings on several requests for a

verdict — when unavailing 251

Exceptions to direction of verdict — when new trial ordered.... 251

In1)ex to Notes. 823

[.See intlex to the rulea, ante, page 7.09.]
TRIAL— (Continued): , ^

Exceptions to the charge — Continued): page.

Questions raised by the exception ; 251

Effect of such an exceptipn 251

Question of Especial damages raised without exception to the

direction of the verdict 251

Req[uest to court to direct a verdict — effect of . . i 251

Result of requests by both parties for the direction of a verdict. 252
Exception to denial of request toTdirect a verdict, which fails i

to specify the ground thereof, 252

Failure to except to a direction of judgment — only exceptions

reviewed 252

Error in i a charge based upon a fact assumed by all the parties

to exist .^ 252'

Instruction to the jury in the absence of defendant's counsel. . . 252
■ Objection to improper matter in a verdict — when to be taken . 252
. Failure to prosecute — dismissal — as to rule in districts other than

the first .' 263

What not sufficient delay to defeat a motion for a dismissal .... 263
Cause reserved, for three years — motion to dismiss denied..... 263
Failure to proceed for ^wo years' — not a ground ior the dis-
missal of the complaint ■ • . • 263

Failure to proceed for nearly six years is prima facie case of

unreasonable delay 263

Failure of the defendant to notice the case for trial, and other

circumstances, justify conditional denial of motion 263

Dismissal for failure to ptoseeute when properly denied — what

are unreasonable conditions of relief ., 264

What laches justify dismissal 'Mi

Laches of defendant who has set up counterclaim 264

Direction of judgment for a counterclaim, improper '. 264 ,

Discharge from jail of a defendant who fails to pay alimony . . 264

Remedy where the ease is not at issue.-T ......: 264

Dismissal f,or laches of pla,intiff, discretibnary 265

Motion .therefor may be noticed before the filing of « note of

issue , 265

Motion proper although the defendant has served a cross notice

of trial ......... 1 265

Right to move to dismiss — not waived 265

\, , Defendant may move without giving notice of trial 265

, Where both parties notice for trial — neither can move 26.'j

The granting of the motion is in the discretion of the court .... se.'i
■ One of several defendants may move to have the complaint di.s- .

. - missed as to him ! .'. ' 265 ' ^

What the defendant must show .1 ..... . 265

A dismissal is a judgment for defendant 2(i5

' 'Motion not proper, pending a stay of plaintiff's proceedings.'. , . . 260

824 ^ Index to Xotes. '

[SeS index to the rules, ante, page 709.]
TRIAL — (Continued) :

I'ailure to prosecute'— (Continued) : . page.

Eflfeet of one of several defendants dying j 260

That plaintiff is dead, and no representatives can be found, no

excuse ^ 266

Refusal of referee to proceed unless liis fees are paid — a ground

for dismissal /. ^ 2G(i

Preference — plaintiff may obtiun preference on tlie ground of the
defendant's arrest or attachment — right does not depend upon

the value of the property attached ,". 206

Definition of " trial " or " hearing " . , . . ■. ......... 2UC

The plaintiff is entitled to make the motion ' 2(i6

Laches — in fDing note of issue — delay in sending it to clerk 2!.t-2

Neglect to file note of issue — ■ application to supply must be on

first day of term : ,• • • • 2y2

Default' — ^case reinstated — second default -;7 practice on '... 292

Calendar — control of the court over its calendar .., 293

V Motion to strike from — contents of papers on motion. 293

/■ ' Appeal from an order putting a cause on the calendar 2!)3

Case in first department — reversed on appeal — its place on the

day' calendar •. .- 293

■An amendment of a pleading necessitates a new notice of trial. . 293
Note of issue filed before an answer, returned, l\as been res?rved. 293

Service of an amended complaint 293

■ ,, Expense of printing calendars : . . . . 293

Preferred causes — action by an administratrix for negligent killing. . 293
Preference under Code of Civil Procedure, section 791, subd. 5 . . 293

Under XJode of Civil Procedure, section 791, subd. 4 294

Right is mutual : 294

A cause cannot be made a. preferred one by stipulation 294

"Wihat is not a strict compliance with Code of Civil Procedure,

section 793, to entitle to a preference , 294

; , '^ The preference is available, though- the motion to gi'ant it is op-

.■'.,, ' posed . ". 294

Order in preferred eases 294

Order to put a caiise on the calendar for preferred causes — ■ when

necessary , 294

Issues in a special proceeding, how preferred 294

Cause need not be upon the calendar before a notice of trial and

' a notice of motion for a preference can be served 29.5

Privilege not regained by amending the complaint 295

Oi'der in which civil actions are entitled to preference 29.5

Short causes — court not prohibited from establishing » calendar

for , , , 295

Court to determine the time a trial will occupy 295

Equity case — ■ not triable at Circuit . .■ 7 295

Consent to n trial at Circuit — ■ from what not intplied ....... .\ 295

Index to JSTotes. 825

[See index to the rules, ante, page TOQ.] '
TRIAL — (Continued) :

Preferred causes — (Continued): page.

Police commissioner of New York entitled to preference 295

Notice of amplication to be served with notice of trial 295

.Facts justifying preference to be set forth in moving papers. . . . 295

What determines date of issue '........ 295

When notice may be served 296

Action for causing death of infant not entitled to preferencij. . : . 206

Extreme age of plaintiff ! , ' 290

Failure to make motion operates as u. waiver ; . . "390

' Action for separation not entitled to preference 296

Third Department rul^s — • rule 15 strictly enforced 29()

Trial of matrimonial actions' '125

Se^ Inquest.
By referee. See RErERENCE.
Place of. See Venue.

TRUST COMPANY -^ Appointment of — a.% guardian'. 347 ■{

UNDERTAKING — Rejection of sureties on — a new undertaking must

be filed and justification take place, in what time 55

Vaca^ting order, of arrest because of iiisuffiQient undertaking. . . . 55

' Not void, as taken colore officii. .^ - 55

Undertaking to stay proceedings on appeal, when to be filed .... 55

Filing necessary . '. 55 ' f

Rights, etc., of s.ureties 55

Canceling of an undertaking on file 55

Enforcement ".....'.... 50'

Liability of surety ' 56

Right of sureties to be discharged 56

Amendments to undertaking given on procuring an arrest 57

Allowed even upon appeal : 57

As to the amount ". . 57

Where it has not been pi-oved or acknowledged • • ■ • ■'''

By adding the names of other sureties. .'..., 57

Where it has not been aoknovpledged before a proper ofiioer". ... 57

When given on procuring an arrest 57

Use of a seal on an undertaking implies a considteration 57

Justification, aflidavit of ' , ; . . . 57

In what amount on appeal to the Appellate Division 58

Must be double the sum specified in the undertaking 58

That sureties justify to miore than is necessary is not dbjection-

able , J 58

Failure .to justify in double the judgment and the $500 does not

invalidate the, undertaking 58

Partial justification — may sustain appeal, when. 58

1 Effect of the failure, of the sureties, excepted to, to justify 58

. ;SuTeti^s not released by their failure tO' justify 58

^ . ■

8-26 '. Ind]j;x to jSotes.

[See index to the rules, ante, page 709.]
UNDERTAKING — (Continued) :

Justification, affidavit df — (Continued) ; page.

Not because funther sureties are required , . . . . 58

When a substitute not required for an insolvent suret/ 58

Default by plaintiff, aftef requiring justification 58

Agl-eement to accept surety — without justification — effect of.. 58

, Bail, and- their justification . . '. gg

Time within w-hich a Justification must take place where a new

undertaking is filed. 59

■ Endorsement of approval -^ omission thereof. .'._ 59

Attorneys — cannot become ba,il .......... .,.% 59

When they may be sureties on undertaJcings 59

iLiabillty of, on an undertaking 59

Sheriflf — cannot ibecome bail 59

Discharged by qualification of bail , 59

'City Court (of New York) -^ attachonent — justification 59

tfndertaking o< guardian to sell infant's real abtate 350

Sureties on bond! of ^ special guardian 353

UNITED STATES COURTS — Attorneys of 45

VENUE — C!hange of — ^the established rules will not be relaxed 319

Rules must be strictly observed ....'..: 319

The witness must swear to advice of counsel 319

, , 'Where neither party resides in the county of the venue 319

Affidavit should state facts to be proved by \ 319

Should disclose the grounds of the witnesses' knowledge 319

5-: ,?'. trVlr"^^ papers' should d^Mose the occupation and residence by street

■ ": ,!i* '■"::, and number- of every 'material witness 319

What is a siuffieient affidavit , 319

When informal andl defective.'.'. .-. :'..... . ^. .^ ai9

■What the afl5davit should contain ......;....'.. 320

, In partitiom suit " 320

In a replevin action ._ 320

' Assault — - proof of condition after it 320

Should state whai witness will prove 320

Word " necessary '' need not be used in the affidavit. 320

Failure to state names, residences and that witnesses would

testify .1 321

Affidavit > must show material facts 321

Expectations not sufficient 321

What ' statement pf expectation' is sufficient 321

Affidavit iiu third department need not state to A\hat witnesses
,)• , will testify ' ,.,. . 321

■ What is an insufficient affidavit ^ 321

Third departmeo^t — failure to allege grounds of expectation of

testimony .' . . 321

Information of the affiant, not disclosed . . . 321

v!;* ' Index to Notes. ' 827

/ [See index to the rules, o«tc, page 709.J
VENUE— (Continued): ' page.

Im,pprtant to sliow their materiality, . . 322

Materiality of the witnesses. . . , , ■. 322

That the party cannot safely proceed toi trial 322

■ ' That he hais a defense upon the merits 322

That he has stated his case to his counsel . 322

That he has stated to his counsel the facts that he expects to

prove by his witnesses. ...,...., 322

Names of the witnesses , . . ' 322

Should he -made by the defendant himself. ' 322

, , Upon what facts motion granted. 322

Upon what a decision will be based 3^2

Convenience of witnesses — • the greatest number -of witnesses .3-23

Seventy-eight witnesses — regarded' as a fra/ud. 323

In the county where the witnesses 'reside ^-^ indepemlent of their

distance froin court house 1 . 323

"" Resident witnesses alone considered 323 >

-Witness outside the State — not considered 323

Inconvenience of the plaintiff, not considered. . . .' .•'.|i323

Residence of thpse acquainted with facts considered before that

of experts ,..,323

Venue nolt retained for convenience of expert witnesses '. . 323

Convenience of witnesses where a. village is defendant 324

Where the proiper venue for convenience of witnesses is doubtful

the place Where the action arose may control 324

Venue, mot changed from Westchester |]o New York county for

the convenience of witnesses i. . .' 324

Westchester county — portion annexed to New York , 324

Change of venue from Queens to Xew York county — when

granted i . 324

Change to New York coumty from a rural county /. 324

When venue changed from Rensselaer to Albany county 324

Changing the venue for convenience of witnesses in action for . '

malicious prosecution " ', ) 324

Place decided by the number of witnesses ' 324

Venue where defendant's witnesses are more numerous 32o

Conflicting applications .' 325 '

What may be shown in the opposing affidavits 325

-Cha.nge of venue to oounty of plaintiff's residence on defendant's

imotion that.it be changed to the defendant's county. 325

Opposing affidavit — when insufficient 325

Where all the defendrant's do not join in the motion the reason

, must apipear , 325

Motion should' (be on notice to all the iparties. . . : ....*..... 325

Notice to other defendants. . . /. . 326

No dd'stinction between aotioms ex contractu and.eas delicto 326

Motion "to change the venue, or plaCe of trial," good. . 326

828 , . Index to Notes.

[See index to the rules, ante, page 709.]
VENUE— (Coatiiiued) :

Convenience of -witnesses — (Continued): . page.

Bv whom to be made - •.'..., ':). 326

The venue can only be changed in the ca«es specified 326

Practice as to imotions to^ change to proper county, and to change

for the convenience of witnesses . . '. 326

When motion may be made , . . , 326

When premature ....'. .N. ' . . . 326

Appearance and dtemand, when necessary 326 '

Demand for change not necessary. 326

Denied if made for delay , 326

That plaintiff will lose a term, not ground for denial 327 ,

In action for unlawful arrest ■-,-•• 327

When a, change will delay the trial " , ;. . 32"

Place of trial, New York county, after annexation. ...'...... .,.,' . 327

As to cities of second class .' . . 327

Notice to oo^dafendant w^ho has not appeared 327

Proper place df trial : 327

Court cannot of its own motion change place of trial df transi-
tory action '. . .~ ,. . 327

Demand for change of place of trial may .be served with amended

answer , 327

Change of venue to proper county, one of right 327

Foreign corporation cannot become residfent of this State 327

Adtion against railroad may be brouglit in county where road is

operated ' • '.'...' 327

llesidence — by street and number and occupation should be stated. . 332 ,.

' Not necessary to state, other than coun'ty 332

.Counlty of residence — decision 332

Residence in adjoining State. .' • 332 ■

Term " residence " discussed. 327

Meaning of " resided in section 984 of Code of Civil Pix)cediiTe. 332
Pleadings as fixing the venue — variance as to venue between the

summon.^ and complaint '. . -. 327

The complaint controls. ;. 327

Notice of trial — effect of , 328

Place — of transaction ■.,,. - . . ■ 328

County in which the transaction took place favored *..... 32S

When the venue will be changed to the place of the transaction. , 328

Tlie iplace of trial may be fixed by stipulation 328

Where the preponderance of witnesses are in the county of the'

transaction 328

When the place of tlie transaction determines the venue 328 -

It controls where tlie number of witnesses is the same 328

\YIicri' the traiisacticnis occurred in two counties 32S

.Convenience of witness_preferredi to place of contract 329

Other considerations besides convenience of witnesses ..:. 329

- "■ , ■ Index to Notes. 829

I
4. [See index to the rules, ante, page 7D9.] •

VENUE— (Continued) :

-Place — (Contimied) : . page.

Fair and impartial trial — what proof that it cannot be had

required '. 329

Proof required as to an impartial trial being impossible 329

When a change of venue is a matter of right 329

When it should be changed upon demand 329

On motion to change for convenience of witnesses, court cannot

change because improper county is named. . ; 330

Demand to change not defeated by a stipulation 330

Stipulation as to evidence , 330

, That iWitnegses would swear as stated not accepted 330

As to the date of issue — it does not bar a change of venue ... 330

Offer to pay expense of adversary's witnesses 330

Stipulation that the witnesses will testify to the facts claimed. 330
• Venue changed on condition that certain testimony be taken by

deposition . 330

Demand to change venue must accom|)any the answer — default

in serving _ an answer 331

May be changed to promote ends of justice • 331

Game laws-^vejiue of action brought under the game laws 331

Excise Law — power of Supreme Com-t to change the venue is not

' divested thereby 331

Laches — motion must be made with diligence . . . : .■• ,. . 331_^

Limit of time to moVe 331

Removal of a cause from a local court to the Supreme Court. . . . 331

When denied for laches , 331

The motjoi* need not be made within ten days after a failure

to consent 332

A motion is too late after a stipulation fixing the time of trial. 332
.Waiver — stipulating to accept short notice of trial is a waiver of

objections to the venue ~ ,. . , , 332

Motion — where made 332

Changed venue — proper j^lace to move to open a, default 332

Amended complaint ■ — place of trial cannot be changed in an amended

^', complaint ; '. 333

An amendment of pleading — changing place of trial, — pending

motion therefor .....' '. 333

Appeal — order changing venue ■'— appealability of, to General Term. 333

Decision of Special Term not disturbed on appeal. 333

Review of exercise of discretion. 333

It is a matter largely in the discretion of the Special Term .... 333

■ Venue of f oreelosure action 364

VERBAL STIPULATION 91

WAIVER — Proceeding with a reference — -a waiver of what 183

WARD. See Guardian ad Litem ; Guardian and Ward. :
WITNESS — Convenience of. See Venue.

INDEX TO LOCAL RULES.

[See index to the ruleB, ante, page 709.]

PAGK.

Albany county — Supreme Court , ■ • • 613

Allegany county — Supreme Court •'■' S16

Broome county — Supreme Court : ■ 620

Broome, county — County Court ^. . 622

Cattaraug-us county — Supi-eme Court '['... 616, 623

Cayuga county — Supreme Court 623

Chautauqua, county,^ Siipreme Court ... .; 616, 625

Chemung county — Supreme Court ''. , 625

Chenango liounty — Supreme Court 627

Cortland county — Supreme Court : . '. . 629

Delaware county — Supreme Court 631

Erie county ■ — • Supreme Court ' 633

Erie county — County Court 647

Erie county — Surrogate's Court • 648

Franklin county ^— Supreme Court 65 1 ■

Frankliii county — Surrogate'^ Court 651

Genesee qounty — Supreme Court . ' 616

Herkimer county — Supreme Court 654

J'eflerson county — Supreme Court 655

Jefferson county — County 'Court 656

Madison county — Supreme Court 657

Monroe comity — Supreme Court ^ ....... . 659

Monroe county — County Court '. 660 -

Mftntgomery county — Supreme Court ■. ■ 662

lifassau county — Supre'me Court . ....:... 662

Niagara county — Supreme Court / . . .: 616

Oneida county — County Court '■ ., ._. 664

Onondaga county — Supreme Court '..'T...... 667

Ontario county — Supreme Court . , . *■ . s 671

Orange county — Supreme Court .■ ^ 671

Orleans county — Supreme Court '. , 616, 672

Oswego county — Supreme Court ......'...'.. t 672 .

Oswego county-^ County Court. ' ■. ' 673

OtSfgo county — Supreme Court ■'. 675

Oiieens ' county — Supreme Court , 677

!p.ensselaer county — Supreme Court , 678

■Richmond county — Supreme Court . . . ' 680

Schoharie county — Supreme Court 682

Schuyler county — Supreme Court » 682

Schuyler county — County Court ^ 6S3

Seneca county — Supreme Court > ^ 684

St. Lawrence county — Supreme Court 685

Steuben county — Supreme Court r 685

Suffolk county — County Court ..'....,.. ,>. ,' . . . 686

Tioga county — Supreme Court , ; :.:...: .,.'.... 6S8

Tompkins county — Suprenie Court ,, i i . . , ....:., '.' . 690

Warren county — Supreme Court :'. 1 1\ . .,.,..' ,..'.,....,.. 693

Washington county — Supreme Court ......... i. ...:..,... .,i.. ......... . 693

Wayne county — Supreme- Court 1 .:....,.. . 693

Westchester county — Supreme Court , 694

Wyoming county — Supreme Court 616

[830]

RULES OF PRACTICE

OF THE

Court of Appeals

OF THE

STATE OF NEW YORK

ALSO

RULES FOR ADMISSION OF ATTORNEYS

ANNOTATED

Amended to Octoter i3, i9i0
By EDMUND H. SMITH

Former Reporter of the Coatt of Appeals

NINTH EDITION
By CHARLES J. HAILES

Of the Albany Bar

Albany
MATTHEW BENDER & CO.

Nbw Yoek
BAKER, VOORHIS & CO.

1910

AND

MATTHEW BENDER & CO.

J. B. liTON COMPANT, PRINTERS,
ALBANY, N. Y.

PREFACE.

In order to completely cover the important adjudications bearing
upon tte practice in the Court of Appeals, it has been necessary to
reset and make all new this Ninth Edition.

For these annotations, as well as for much valuable advice and
assistance in the preparation of the work, the editor is under
obligation to the original author, Mx. Edmund H. Smith, former
Eeporter of the Court. €. J. H.

Albany, October 12, 1910.

TABLE OF CONTENTS.

FAQE.

Notice to attorneys vii

Ktjles of Pbacticb:
Order Adopting Rules , 1

Rule I. Appellant to File Return; Effect of Omission 11

II. Further Return may be Ordered 86

III. Attorneys and Guardians Below to Continue to Act 94

IV. Appellant to make a Case; its Form 101

V. Cases and Points to be Printed; Mode of Printing 107

VI. Appellant to Serve Copies of Case; Effect of His Default. 107
Vn. Copies of Cases and Points 110

VIII. Statement and Discussion of Facts; Absent Judges 118

IX. Criminal Causes 145

X. Submission and Reservation of Causes 145

XI. Motions and Appeals from Orders 148

Xn. Call of Calendar 158

XIII. Time of Argument 160

XIV. Preferred Causes 162

XV. Defaults 172

XVr. The Remittitur 174

XVn. Affirmance by Default 203

XVin. Enlarging Time ; Revoking Orders 204

XIX. Calendars 206

XX. Motions for Reargument 209

BxTLES FOB Admission of Attobneys and Counselobs:

Order Adopting Rules 216

Rule I. Admission and License 216

II. Admission after Practicing Three Years in Another State

or Country, etc 226

m. Prerequisites to Admission on Examination 229

IV. Prerequisites to Examination by State Board of Law Ex-
aminers; Periods of Law Study; Admission in Another

State or Country 231

V. Study of Law; Regents' Examination and Certificate;

Vacations ; Clerkship Certificate 235

VI. Proof of Compliance with Preliminary Requirements 247

vn. Filing Certificates Nunc Pro Tunc; Certain Regents' Certifi-
cates Validated 252

Vni. State Board of Law Examiners 254

IX. Time of Taking Effect 256

Forms 263

[vl

vi Table of Contents.

Appendix : page.

Regents' Instructions to Law Students, 267

The Jurisdiction of the Court of Appeals 278

Rules of the State Board of law Examiners 286

Rules Relating to Ofeioial Examinees of Title:

Rules of Court of Appeals 289

Rules of State Board of Law Examiners 393

Index 295

NOTICE TO ATTORNEYS.

The first Monday of each session only will be a motion day,
on which oral arguments will be heard in original motions.
Original motions may be submitted, without oral argument, on
any Monday when the Court is in session, provided they are
submitted by both sides.

After the day calendar is made up — at 6 o'clock p. m. —
stipulations are too late. The Clerk has then no power to leave a
number off.

The full number of cases and points (18) are required, without
which appeals may not be heard.

The " Order Calendar " is composed of preferred causes, and
the notice of argument must claim the preference as " an appeal
entitled to be heard under Rule XI of the Court of Appeals."
Appeals from orders should be noticed for the first Monday of a
session.

The county clerk's certificate, or waiver thereof imder section
3301, Code C. P., are necessary parts of the printed case on
appeal.

When a new calendar is ordered, it is desirable to notice causes
in which the returns are filed, at once.

Counsel residing in New York city and its vicinity who
intend to argue causes on the General Calendar, should send
their residence addresses to the Clerk, and should promptly
notify him of changes in their office addresses.

The daily sessions of the Court are held from 2 o'clock p. m.
to 6 o'clock p. M., except Fridays only, when the Court will sit
from 10 A. M. to 2 p. m.

Every Exhibit presented to the Court should be plainly
marked with the address of the Counsel Bresenting the same, as
well as the title of the cause.

[vii]

viii Notice to Attorneys.

The Clerk always submits for Counsel who are absent when
their cases are called for argument, provided their papers have
been filed as directed by Eule VII.

Bequests for copies of opinions should be addressed to the State
Reporter, Albany, N. Y.

The eighteen printed copies of the case required by Rule VII
to be filed with the Clerk must be bound in light-colored (not
dark) paper, and should not be sent to the Clerk for filing until
after the appeal has received a Calendar number.

Each day's Calendar and all court notices to the Bar are
printed in the New York Law Journal, which is the legal publi-
cation through which the Clerk endeavors to reach the legal pro-
fession.

Attention of Attorneys is called to Rule YII, which will he
strictly enforced.

COURT OF APPEALS PRACTICE.

RULES OF THE COURT OF APPEALS.

ORDEE ADOPTING RULES.

In The Court of Appeais,
December 15, 1906.

Ordered, That the following amended rules regulating
the practice and proceedings in the Court of Appeals, be
and the same are hereby adopted in pursuance of the pro-
vision of the Code of Civil Procedure, such rules to take
effect January 7, 1907.

Rules; making and publishing.

The Judiciary Law (chapter 30 of the Consolidated Laws,
chapter 35, Laws of 1909) provides as follows, in relation to
rules of the Court of Appeals:

Court of Appeals may make rules of practice in its court.

§ 51. The Court of Appeals may from time to time make, alter and
amend, rules, not inconsistent with the Constitution or statutes of the
State, regulating the practice and proceedings in the court. (Formerly part
of section 193 of the Code of Civil Procedure.)

General rule or order of Court of Appeals must be published.

§ 52. 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 pursuant to section 82 of the Executive Law, once in each week
for three successive weeks. (Formerly part of section 18, Code of Civil
Procedure. )

Power of the Court of Appeals as to admission of attorneys and counselors.

§ 53 (sub. 4). 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

2 CouET OF Appeals Peactice.

the judges of that court. A copy of each amendment to such rules
must, within five days after it is adopted, be filed in the office of the
Secretary of State. (Formerly part of section 57, Code of Civil Pro-
cedure. )

Application of provisions as to publishing.

It has been held that section 18 of the Code of Civil Procedure
(supra) [section 52 of the Judiciary Law] has no application to
rules of Court of Appeals relating to the admission of attorneys
and counselors. 16 Alb. Law J. (1877), 309.

It is not essential to the validity of amendments to rules of
the Court of Appeals regulating the admission of attorneys, that
they be published in the volumes of the Session Laws, and that a
copy thereof be filed with each county clerk, as required by sec-
tion 57 of the Code of Civil Procedure (supra) [now subd. 4 of
section 5'3, Judiciary LawJ. Those requirements are only di-
rectory, not mandatory. Matter of Maxwell (Supr. Ct. 1891),
14 W/ Y. Supp. 658; 60 Hun, 58L

Rules of court.

Force of. — ■ The rules of the court, being made under special
statutory authority, have the force and effect of statutes. Matter
of Moore (1888), 108 IST. Y. 280.

Belief from failure to comply with. — Failure to comply with
a rule which is directory merely, may be obviated by the court
allowing the act to be done nunc pro tunc; but this is not so in
the case of mandatory provisions. Matter of Moore (supra) ;
and see Martine v. Lowenstein (1877), 68 IST. Y. 456.

In conflict with Code. — A rule of court which conflicts with
the Code is inoperative; French v. Powers (1880), 80 X. Y. 146;
Gormerly v. McGlynn (1881), 84 IST. Y. 284; and the effect of
a statutory provision cannot be altered by a rule of court. Eice v.
Ehele (1874), 55 N. Y. 518; Glenney v. Stedwell (1876), 64
N. Y. 120.

Construction of statutes hy rules. — Rules of court, made
under the authority of the Code, may be considered as giving
construction to the statute. Myers v. Feeter (.Supr. Ct. 1850),
4 How. Prac. 240, 241.

Disregarding rules. — The court may deviate from its general
rules whenever in its judgment a proper case is presented.
Clark V. Brooks (N. Y. Com. PI. 1864), 26 How. Prac. 285.

EULES OF COUET. 3

A substantial remedy cannot be prevented by a neglect of the
opposite party to observe the. rules of practice in his pleading.
Goldberg v. Utley (1875), 60 JST. y. 4:27, 429.

Courts are opposed to departing from the customary modes of
procedure, especially where such departure tends to infringe on
the general rules of the court. Battershall v. Davis (Supr, Ct.
1861), 23 How. Prac. 383.

The true object of technical rules is to promote justice or pre-
vent injustice. When they fail of those ends courts should
neither encourage nor enforce them. People v. Tweed (1875),
5 Hun, 353, 358.

Practice it'hen Code and rules silent. — The former practice of
the Court for the Correction of Errors governs the Court of Ap-
peals in cases not provided for by its rules or the Code. Hast-
ings V. McKinley (Ct. App. 1853), 8 How. Prac. 175; and see
Mut. Life Ins. Co. v. Bigler (1880), 79 K Y. 568.

The General Rules of Practice. — ■ By general usage, the pro-
cedure prescribed by the General Rules of Practice established
under section 17 of the Code of Civil Procedure, (Judiciary Law,
sections 93, 94) although, by the terms of that section, not bind-
ing on the Court of Appeals, is followed there, where applicable,
in cases not otherwise provided for. See, e. g., query as to appli-
cation of Rule 2 of the General Rules of Practice to the Court
of Appeals in People ex rel. Wallkill Valley R. R. Co. v. Keator
(1885), 101 K T. 610, 613.

But, by force of section 3347 of the Code of Civil Procedure,
which regulates the application of certain portions of that Code,
subdivision 10 of section 791, which mentions among preferred
causes "A cause entitled to preference by the general rules of
practice," does not apply to the Court of Appeals. Nichols v.
Scranton Steel Co. (1892), 135 IST. Y. 634.

And the provision of section 1361 of the Code, which declares
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.
(1891), 128 ¥. Y. 93.

Pre-existing practice. — Although a revision of court rules may

4 OouET OF Appeals Puactice.

not contain any saving, in terms, of pre-existing practice, it can-
not be deemed to abrogate a practice then long established, which
was not dependent upon any court rule which was the subject of
revision. Miller v. Stettiner (N. Y. Supr. Ct. 1862), 7 Bosw.
692, 696.

Custom of the courts. — All matters of practice are, in the
first instance, in the discretion of the courts in which questions
of practice arise, when there are no statutory provisions or pro-
visions by general rules of court that govern the case. Yet
matters of practice come after a while to be governed absolutely
by the custom of the courts, and what is found in any case to
have been held by authoritative decisions to be the custom of the
courts becomes thus the way in which discretion must go. Fisher
V. Gould (1880), 81 IST. Y. 228, 232.

Inherent power of procedure. — The powers of courts are either
statutory or those which appertain to them by force of the com-
mon law, or they are partly statutory and partly derived from
immemorial usage, which latter constitutes their inherent juris-
diction. They are organized for the protection of public and
private rights and the enforcement of remedies. Presumptively,
therefore, whatever judicial procedure is essential to enable
courts to exercise their function is authorized. McQuigan v. D.,
L. & W. E. E. Co. (1891), 129 JST. Y. 50.

Amendments of rules j construction. — The amendments of the
rules of court are analogous to the .amendments of statutes and
should receive the same construction. The rule of statutory con-
struction — that when a statute is amended by enacting that it
" is amended so as to read as follows," and then incorporating the
changes and additions, with so much of the former statute as is
retained, the part which remains unchanged is to be considered as
having been continued the law from the time of its original enact-
ment — applies to the amendments of the rules of court. Matter
of Warde (1897), 154 N. Y. 342.

Former rules; changes; revision.

Practice rules.' — The first rules of the Court of Appeals, on
its organization under the Constitution of 1846, were .adopted
July 6, 1847, but being based on the old practice they were soon
rendered obsolete by the enactment of the Code of Procedure, and

Rules of Coukt. 5

on May 25, 1849, new rules were adopted, which have constituted
the basis of all subsequent revisions. - These rules were nineteen
in number, and are to be found in 2 N. Y. 573. In January,
1853, two additional rules were adopted, which, with the preceding
rules as amended up to June, 1853, are given in 5 IST. Y. 575. On
January 23, 1854, " Calendar Practice," which originally pre-
ceded the rules, but which is now incorporated in Eule X, was
established (15 E". Y. 658). A twenty-second rule was added in
January, 18^8, which, with the other rules as they then existed,
may be seen in 15 E". Y. 632. " Calendar Practice " was amended
in June, 1859 (18 ~S. Y. 601) ; ,and in June, 1860, a rule pre-
scribing the classes and order of preferred causes was adopted, and
added as Eule XXIII (21 N. Y. 601). In January, 1862, three
additional rules were adopted, of which Eule XXV was important
in that it prohibited all judgments by default. See Maher v.
Carman (1868), 38 IST. Y. 25. In 1870 this prohibition was
limited to judgments of reversal. By January, 1864, the rules
had increased to twenty-nine, and so continued until after the re-
organization of the court under the constitutional amendment of
1869, which occurred on July 4, 1870. On the sixth of that month
the " Calendar Practice " and rules were revised, and the latter
reduced to twenty-three, which, with certain amendments, con-
tinued in force to the revision of Octdber 28, 18i92, unchanged as
to subject-matter, with the exception of Eule XXIII, which origi-
nally prescribed the time for filing notices of argument, but
which, in September, 1873, was supplanted by the rule on re-
arguments. The rule on motions was amended in June, 1889, by
changing the motion days from Tuesday to Monday. These rules
have been printed with the court calendars, and are also to be
found in various annotated editions of the Codes and in separate
publications of court rules.

On October 28, 1892, the rules were amended "by the court and
ordered to take effect, as so amended, on January 1, 189'3. By
that revision (on which the first edition of this book, ihzt of
1893, was based), Eule I of 1870, relating to the return, and the
provisions of Rule XX of that year prescribing the classes and
order of preferred causes, were abrogated, having been super-
seded by the provisions of the Code of Civil Procedure. Eule X
of 187'0, relating to number of counsel heard on ai^iiments, and

6 CouET OF Appeals Practice.

Rule XVIII, in reference to exchanged causes, etc., were omitted
in 1892 as unnecessary; Rule XII of 1870, on submission of
causes, was joined with " Calendar Practice " in new Rule X ;
and the rule in reference to making up the calendars (formerly
Rule XXII, now XIX) was materially changed by providing for
placing on the calendar, if so ordered, all causes in which returns
are on file, although they may not have been noticed for argument.
In consequence of the above changes the rules were reduced to
twenty, arranged in a new order and given new numbers, which
they still retain. The changes in the numbers of corresponding
rules effected by the revision of 1892 are as follows :

Cal
Former Rules. Prac. I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII.
Present Rules. X. — L II. III. IV. V. VI. VII. VIII. — IX. X XI.

Former Rules. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII.
Present Rules. XVI. XVII. XVIII. XII. — XIII. XIV. XV. XIX. XX.

The changes effected in the Rules of Practice by the revision on
which the second edition of this book is based, which revision, as
appears from the above order of the court, was adopted October
22, 1894, to take effect January 1, 1895, consisted of the substitu-
tion, for the former first paragraph of Rule VII, of provisions re-
quiring the filing of copies of the case and the filing and serving
of copies of the points on both sides, before the cause is placed on
the day calendar for argument ; of an addition to Rule VIII, pro-
viding for the submission of causes to judges absent at the time
of argument, and of an addition to Rule XII, providing for the
exchange, by stipulation, of causes not on the printed calendar
with causes on the calendar. On December 2, 1895, Rule IV
was amended by substituting the words " the Appellate Division
of the Supreme Court " for the words " General Term," in ac-
cordance with the changes introduced by the Judiciary Article of
the Constitution of 1894, taking effect January 1, 1896. Rule
XI, relating to motions and appeals from orders, was amended
on June 19, 1896, and January 28, 1898.

The latest amendments to the Rules of Practice were made on
the 15th day of Dtecember, 1906, and went into effect on January
7, 190-7. Of the twenty-two rules, eleven were amended, but
nearly all of these amendments are merely verbal in character,
intended to make the meaning clearer rather than to change their
scope or effect.

Rules of Couet. 7

The amendment to Rule V now requires tliat all papers fur-
nished to the court, if bound, shall be bound in light-colored paper,
which can be legibly written upon.

The amendments to Rule XI consist of additional provisions
in reference to motions and appeals from orders.

The amendment to Rule XII relates to the call of the calendar.
It is now provided that any cause which is regularly called and
passed without postponement by the court for good cause shown at
the time of the call, instead of being placed upon all subsequent
calendars, as if the return had been filed on the day when it was
so passed, shall be stricken from the calendar.

The amendments of 1906 are indicated by being placed in
brackets.

Rules for admission of attorneys and counselors. — The act em-
powering the judges of the Court of Appeals " to establish such
rules and regulations as they may deem proper in relation to the
admission of persons hereafter applying to be admitted as at-
torneys, solicitors and counselors in all the courts of this State,"
now embodied in the Judiciary Law and the Executive Law, was
passed April 13, 1871 (Laws of 1871, chap. 486). In pursuance
thereof, the judges, on May 1, 1871, adopted rules on the subject,
which took effect June 1, 1871, and which are published in Volume
2 of Session Laws of 1871, p. 2194, and are also to be found in
10 Abb. Prac. CN. S.) 147, 508, in notes. Amended rules were
adopted September 28, 1877, taking effect October 1, 1877. The
most important feature of these amendments was the provision
that applicants should be first examined and admitted as attorneys
only, and should be again examined for admission as counselors
two years thereafter. This division of admission was abolished in
1882, on May 4 of which year amended rules were adopted,
which took effect July 1, 1882. These rules introduced the im-
portant requirement that all applicants who were not graduates
of a college or university, except those who had been admitted in
another .State or country, should pass a regents' examination as a
preliminary to the study of law. Rule II of 1882, in which this
requirement was embodied, was amended in some of its details
March 19, 1891, and as so amended took effect April 13, 1891, and
was, together with the other rules of 1882, readopted by the court
in the revision of October 28, 1892, which took effect January 1,

8 Court of Appeals Pkactice.

1893. The rules as then readopted are to be found in the first
edition of this book.

By chapter 760 of the Laws of 1894, approved May 23, 1894,
section 56 of the Code of Civil Procedure, relating to the examina-
tion and admission of attorneys and counselors, was amended so
as to provide for the creation of a State Board of Law Examiners,
to consist of three members to be appointed by the Court of
Appeals, and for the conducting, under rules to be prescribed by
that court, of a uniform system of examinations for admission to
the bar throughout the State by such Board of Examiners. The
act provided that it should go into effect January 1, 1895, but
that the exiaminers might be appointed and rules for examination
adopted immediately.

This legislation necessitated important changes in the rules for
the admission of attorneys and counselors, and amendments were
consequently made and adopted by the Court of Appeals on
October 22, 1894, to take effect January 1, 1895. These amended
rules formed the basis of the second edition of this book. The
principal changes introduced by them consist of regulations for
the examinations to be conducted by the State Board of Law Ex-
aminers, pursuant to section 56 of the Code as amended, pre-
cedent to admission by the Supreme Court, with provisions for the
compensation of the members of the board and in reference to the
times and places of holding examinations ; a provision allowing the
whole period of preliminary law study to be passed either in at-
tendance at a law school or in serving a clerkship in a law of&ce,
or partly in one of these methods and partly in the other, thus
dispensing with the former requirement of at least one year's
clerkship in a law office; the insertion of the requirement that
persons who have been admitted in another State or country must
remain therein one year as attorneys, to entitle them to examina-
tion for admission here after one year's study of law in this State ;
the addition of advanced English, algebra and economics to the
subject of the regents' examination; permission to the regents
to accept certain equivalents as substitutes for their examination,
with the validation of certificates previously issued by the regents
upon equivalents instead of an actual examination; and the right
to examination in any judicial department of the State, instead of

EuLEs OF Court. 9

the former restriction to the department of which the applicant
was at the time a resident.

By the terms of the amendment of 1894 to section 56 of the
Code of Civil Procedure, the determination of the fact of com-
pliance with the rules regulating admission to practice, precedent
to examination for admission, was vested in the State Board of
Law Examiners.

On December 2, 1895, amendments were made to the rules for
the admission of attorneys, the most important of which was an
addition to subdivision 3 of Rule V, providing that regents' law
student certificates should be deemed to take effect as of the date
of the completion of the regents' examination. On December 1,
189'7, Rule VIII, relating to the State Board of Law Examiners,
was amended.

On December 20, 1906, the rules for the admission of attorneys
and counselors were further amended, the amendments to go into
effect on the 1st day of July, 1907. These amendments were in-
tended to make more stringent the regulations regarding examina-
tions and to establish a still higher standard of admission to the
bar of this State. Rule III, as to prerequisites to admission on
examination, has been amended so as to require that the evidence
of good moral character of the applicant must be shown by the
affidavit of two reputable persons of the town or city in which
the applicant resides, one of whom must be a practicing attorney
of the Supreme Court, and it is required that the affidavits shall
set forth in detail the facts upon which such knowledge is based.
Rule IV was amended by requiring that the applicant for ex-
amination should have been an actual and not a constructive resi-
dent of this State for at least six months preceding the date of the
examination. Also that the applicant must not only have attended
a law school but also must have successfully completed the pre-
scribed course of instruction therein. A year's work in a law
school was required, to consist of not less than thirty-two school
weeks, exclusive of usual vacations, in which not less than twelve
hours' attendance upon lectures or recitations of the prescribed
course, to be given or conducted by regular members of the faculty,
are required in each week. The standard of educational qualifi-
cations was also raised by requiring that the applicant should have
passed a satisfactory examination in second-year English instead

10 CouET OF Appeals Peactice.

of in English composition and advanced English in addition to the
other prescribed subjects, and under the equivalent of such exami-
nation the course of study in institutions registered by the Regents
of the University as maintaining a satisfactory academic standard
was raised from three to four years. Eule VI, relating to proofs
that the preliminary conditions prescribed by these rules have
been complied with, was amended by requiring that the evidence
must be to the effect that during the entire period of law clerkship
excepting usual vacations, the applicant had actually been em-
ployed by a practicing attorney of the Supreme Court as a
regular law clerk and student in his law office, and under his
direction and advice engaged in the practical work of the office
during the usual business hours of the day.

Rule X, permitting service in the late war with Spain to count
as a part of the required period of study was repealed.

In April,- 1908, Eule V was amended, among the amendments
being the striking out of the provision permitting the procuring
and filing of the regents' certificate within owe year after entering
upon the study of the law, and retaining the single requirement of
procuring and filing such certificate before entering upon the
study of the law.

The amendments of 1906 are indicated by being printed in
brackets ; those of 1908 by being printed in italics.

RULES OF PRACTICE.

EULE I.

Appellant to File Return — Effect of Omission.

If the appellant shall not cause the proper return to be
made and filed with the clerk of this court within the time
prescribed by law (Code Civ. Pro. § 1315), the respondent
may, by notice in writing, require such return to be filed
within ten days after the service of the notice, and if the
return be not filed in pursuance of such notice, the appel-
lant shall be deemed to have waived the appeal. On an
affidavit proving that the appeal was perfected, and the
service of such notice, and a certificate of the clerk that
no return has been filed, the respondent may enter an order
with the clerk dismissing the appeal for want of prosecu-
tion, with costs, and the court below may thereupon pro-
ceed as though there had been no appeal.

The return.

Of luhat to consist; time within which must he filed. — The
Code of Civil Procedure prescribes the contents of the return
to the Court of Appeals, and that it shall be transmitted within
twenty days after the appeal is perfected by giving and serving
the requisite undertaking.

The sections of the Code on the subject are as follows :

What papers transmitted, and when.

§ 1315. Where an appeal is taken from a final judgment as prescribed
in title second or third of this chapter, the appellant must, within twenty
days after it is perfected, cause a, copy of the judgment-roll and of the
case and notice of exceptions, if any, filed after the entry of judgment
and a certified copy of the judgment* given thereon and of the notice of

* The return to the Court of Appeals on appeal from a, judgment should
contain a copy of the decisive order of the Appellate Division as well as of
the judffment entered thereon.

' [11]

12 CouET OF Appeals Pkactice. [Rule 1

appeal to be transmitted to the appellate court by the clerk upon whom the
notice of appeal was served. Where an appeal from an order or a part
of an order, is taken as prescribed in title second, third and fifth of thii
chapter, the appellant must, within the same time, cause a certified copy
of the notice of appeal, of the order, and of the papers upon which the
order was founded, to be transmitted to the appellate court by the same
clerk. If the appellant fails so to do, the respondent may cause those
papers to be so transmitted; and he is entitled to tax the expense thereof,
as a disbursement, where he recovers costs. The clerk of the appellate court
must file the papers so transmitted; and except where it is otherwise
specially prescribed by law the appeal must be heard upon them.

Appeal, how taken.

§ 1300. An appeal must be taken by serving, upon the attorney for the
adverse party, as prescribed in article third of title sixth of chapter
eighth of this act, and upon the clerk, with whom the judgment or order
appealed from is entered by filing it in his office, a written notice to the
eflect that the appellant appeals from the judgment or order, or from
a specified part thereof. Upon an appeal to the court of appeals from
an order of the Appellate Division, made upon an appeal from the Surro-
gate's Court, the notice of appeal shall be filed with the clerk of the
Surrogate's C!ourt.

When notice of appeal to specify interlocutory judgment, etc.

§ 1301. Where the appeal is from a final judgment, or from a final order
in a special proceeding, and the appellant intends to bring up, for review
thereupon, an interlocutory judgment, or an intermediate order, he must,
in the notice of appeal, distinctly specify the interlocutory judgment, or
intermediate order, to be reviewed.

Limitation of time to appeal.

§ 1325. An appeal to the court of appeals must be taken within sixty
days after service upon the attorney for the appellant, of a copy of the
judgment or order appealed from, and a written notice of the entry thereof.
(Amended by Laws 1909, chap. 418.)

When time cannot be extended.

§ 784. A court, or a judge, is not authorized to extend the time fixed
by law, within which to commence an action; or to take an appeal; or
to apply to continue an action, where a party thereto has died, or has
incurred a disability; or the time fixed by the court within which a supple-
mental complaint must be made, in order to continue an action; or an action
is to abate, unless it is continued by the proper parties. A court, or a
judge, cannot allow either of those acts to be done, after the expiration
of the time fixed by law, or by the order, as the case may be, for doing
it; except in a, case specified in the next section.

Rule 1] The Rettjen. 13

Qualification of last section.

§ 785. Where a party, entitled to appeal from a judgment or order,
or to move to set aside a linal judgment for error in fact, dies, either
before or after this chapter takes effect, and before the expiration of
the time within which the appeal may be taken, or the motion made, the
court may allow the appeal to be taken, or the motion to be made, by the
heir, devisee or personal representative of the decedent, at any time within
four months after his death.

Undertaking to perfect appeal.

§ 1326. To render a notice of appeal, to the Court of Appeals, effect-
ual for any purpose, except in a case where it is specially prescribed by
law, that security is not necessary, to perfect the appeal, the appellant
must give a written undertaking, to the effect that he will pay all costs
and damages, which may be awarded against him on the appeal, not
exceeding five hundred dollars. The appeal is perfected, when such an
undertaking is given, and a copy thereof, with notice of the filing thereof,
is served, as prescribed in this title.

Defects in proceedings may be supplied.

§ 1303. Where the appellant, seasonably and in good faith, serves the
notice of appeal, either upon the clerk or upon the adverse party, or his
attorney, but omits, through mistake, inadvertence, or excusable neglect,
to serve it upon the other, or to do any other act, necessary to perfect the
appeal, or to stay the execution of the judgment or order appealed from;
the court, in or to which the appeal is taken, upon proof, by affidavit, of
the facts, may, in its discretion, permit the omission to be supplied, or
an amendment to be made, upon such terms as justice requires.

Security may be waived.

§ 1305. An undertaking, which the appellant is required, by this chapter,

to give, or any other act which he is so required to do, for the security

of the respondent, may be waived by the written consent of the respondent.

Deposit in lieu of undertaking.

§ 1306. Where the appellant is required by this chapter, to give an
undertaking, he may, in lieu thereof, deposit with the clerk with whom
the judgment or order appealed from is entered, a sum of money equal
to the amount for which the undertaking is required to be given. The
deposit has the same effect as filing the undertaking; and notice that it
has been made has the same effect as notice of the filing and service of
a copy of the undertaking. The court, wherein the appeal is pending,
may direct the mode in which the money shall be kept and disposed of,
during the pendency, or after the determination of the appeal.

Undertaking must be filed.

§ 1307. An undertaking, given as prescribed in this chapter, must
be filed with the clerk with whom the judgment or order appealed from is

14: Court of Appeals Peactice. [Eule 1

entered, except that upon an appeal to the court of appeals the under-
taking must be filed with the clerk of the court wherein the original
judgment or order was entered.

No security necessary on appeal by the people, etc.

§ 1313. Upon an appeal taken by the people of the State, or by a
State officer, or board of State officers, or a board of supervisors of a
county, the service of the notice of appeal perfects the appeal, and stays
the execution of the judgment or order appealed from, without an under-
taking or other security.

Id.; on appeal by a domestic municipal corporation.

§ 1311. Upon an appeal taken by a domestic municipal corporation, the
service of the notice of appeal perfects the appeal, and stays the execution
of the judgment or order appealed from, without an undertaking or other
security; except that, where an appeal is taken, as prescribed in title
second, third or fourth of this chapter, the court in or from which the
appeal is taken, may, in its discretion, require security to be given. In
that case, the form, nature and extent of the security, not exceeding that
which is required in a. like case from a natural person, and the time
and manner in which it must be given, must be prescribed by the order
of the court; and the mayor, comptroller, or counsel to the corporation,
may execute, in behalf of the corporation, an undertaking so required
to be given.

Case made in Appellate Division.

§ 1339. Where an appeal to the Court of Appeals, from a judgment,
rendered by the Appellate Division of the Supreme Court, upon a ver-
dict, subject to the opinion of the court, has been perfected, a case, con-
taining a concise statement of the facts, of the questions of law arising
thereupon, and of the determination of those questions by the Appellate
Division, must be prepared and settled, by or under the direction of the
court below, and annexed to the judgment-roll. An exception is not neces-
sary, to enable the Court of Appeals to review the determination of a
question of law, arising upon the verdict. A certified copy of the case
must be transmitted to the Court of Appeals, instead of the case upon
which the judgment of the court below was rendered. The court below,
or a judge thereof, may extend the time, limited by law, within which
the papers must be transmitted to the Court of Appeals, for the purpose
of enabling the appellant to procure the case to be prepared or settled.

Certification, or stipulation in lieu thereof.

Section 1315, of the Code of Civil Procedure, prior to amend-
ment in 18'9'0, required the return on appeal from a final judg-
ment to consist " of a certified copy of the notice of appeal, of
the judgment-roll, and of a case or notice of exceptions, if any,"

Rule 1] The Eetuen. 15

etc. At that time, the last paragraph of section 3301, as amended
in 1882, provided that —

Where the attorneys for all the parties interested, other than par-
ties in default, or against whom a judgment or a final order has been
taken, and is not appealed from, stipulate in writing that a paper is
a copy of any paper whereof a certified copy is required by any pro-
vision of this act, the stipulation takes the plac« of a certificate, as to
the parties so stipulating, and the clerk is not required to certify the
same, or entitled to any fee therefor.

It was held in Dow v. Darragh (1883), 92 N. Y. 537, that the
above provision of section 3301 was not intended to alter the pro-
vision of section 1315, and of Rule I of the Court of Appeals,
then in force, requiring the return to the Court of Appeals to be
certified by the clerk of the court below, the court saying that
parties " cannot by stipulation make up a case for this court
until the law shall be further changed; the returns to this court
should be made by a responsible officer under the sanction of his
official oath, and his responsibility to the law; any other practice
would be extremely unwise and mischievous."

Shortly before the above amendment to section 3301, it was
held by courts from which returns come to the Court of Appeals
that no authority existed either in the parties or their counsel to
compel the clerk to accept the return prepared for his certificate
as it may be presented to him, but he has a duty to perform in
seeing to it that the return is a proper one, and for that service
he is entitled to charge the legal rate of fees, which is expressly
allowed by section 3301 of the Code, and probably was intended
as a check upon frivolous appeals. Chambers v. Appleton (1881),
il ]Sr. Y. Supr. Ct. 534, quoting from Townsend v. Nebenzahl
(Supr. Ct, Spl. T. 1880), 2 Civ. Proc. R. (McCarty), 342, in
note.

In Lewisohn v. Xiederwiesen (1886)., 40 Hun, 545, the Su-
preme Court refused to hear an appeal, because the papers were
not certified as required by section 1353 on appeal to the General
Term — remarking that the observance of the duty imposed by
that section was extremely important, its object undoubtedly be-
ing to secure the presentation to the appellate court of the entire
proceedings sought to be reviewed.

16 CouET OF Appeals Peactice. [Eule 1

Thereafter, in 1890, the above clause of section 1315 was
amended as set forth on page 14 antej by changing " a certified
copy of the notice of appeal, of the judgment-roll and of a case or
notice of exceptions, if any," to " a copy of the judgment-roll and
of the case and notice of exceptions, if any * * * and a
certified copy of the judgment given thereon and of the notice of
appeal."

At the same time, section 3301 was amended, by adding to
the paragraph thereof quoted the following words:

And the paper so proved by stipulation shall be received by the clerks
of all the courts and by the courts, and shall be used or filed with the
same force and effect as if certified by a clerk of the court.

Since this amendment of 1890 to section 3301 of the Code,
although there has been no express determination by the court
as to its effect, it has been the unquestioned practice of the clerk
of the Court of Appeals to receive and file returns not certified
by the clerk of the court below, when accompanied by a stipula-
tion of attorneys under section 3301. But since section 1315
no longer requires " a certified copy of the judgment-roll and of
the case and notice of exceptions, if any," but only requires " a
copy " thereof, it has, in some instances, been claimed that the
stipulation, authorized by section 3301 in the case of " a copy of
any paper whereof a certified copy is required by any provision
of this act," is not required for the judgment-roll and case and
notice of exceptions, if any, but only for the judgment appealed
from and the notice of appeal to the Court of Appeals, of which
alone a certified copy is now required by section 1315. That is,
in effect, that the copy of the judgment-roll and case and notice
of exceptions, if any, mentioned in section 1315, need be neither
certified nor stipulated, but should only purport to be a copy. If
this is so, the anomaly is presented that while a copy of a case
made under section 99'7 of the Code, and a notice of exceptions
under section 994, need not, by force of sections 1315 and 3301,
be either certified or stipulated on transmission to the Court of
Appeals, a copy of a case made for appeal to the Court of Appeals
directly, under section 1339, must be either certified or stipulated,
since that section says that a certified copy of the case must be
transmitted. Although the appeal papers should show that the

Rule 1] The Retubw. 17

case therein was settled by the trial judge and that they are copies
of the record, Brigg v. Hilton (18«5), 99 N". Y. 517, yet the
"Code is silent as to how the evidence of these facts shall be au-
thenticated for the Court ,of Appeals, except as above set forth.

On appeals from orders, section ISl'S still requires " a certified
copy of the notice of appeal, of the order, and of the papers on
which the order was founded " to be transmitted to the Court of
Appeals, and by force of section 3301, providing for stipulation
in lieu of certification, all these papers, if not certified, must be
stipulated to be copies. The stipulation should cover all the
papers in the return. For stipulation in lieu of certification in
Surrogate's Court proceedings, see Code, sections 2'5'67, 3302; in
City Court of ISTew York cases, see section 3194a.

It is probable that the omission of the word " certified " before
the words " copy of the judgment-roll and of the case and excep-
tions," in the amendment of 1890 to section 1315 of the Code of
Civil Procedure, was owing to the fact that section 1353 of the
Code required those papers to be certified on appeal to the
General Term (now the Appellate Division of the Supreme
Court), and therefore it was thought that a second certification
of the same papers on a subsequent appeal from the General
Term to the Court of Appeals was unnecessary. This would
seem to be so, where the return to the Court of Appeals contains
a copy of the original certification to the Appellate Division, or
a copy of a stipulation in lieu thereof.

Return; contents of.

Same papers as helow. — The review in the Court of Appeals
must be upon the same case as that on which the cause was de-
cided below, and the court below cannot change the case so as to
present the facts otherwise than as found, or insert therein ex-
ceptions not taken on the trial or to its final decision. Johnson
V. Whitlock (1866), 13 N. Y. 344. The Court of Appeals
should be furnished with the same facts as those on which the
Appellate Division based its judgment; Smith v. Grant (Supr.
Ct. 1859), 17 How. Prac. 381; and can consider only errors al-
leged to have been committed by the court below; it cannot base
a reversal upon matter brought into the case subsequently by
stipulation. People v. Dewey (1891), 128 N". Y. 606.

18 CouET OF Appeals Peactice. [Rule 1

The Court of Appeals is confined to and controlled by the
record on appeal and cannot correct even an obvious error, con-
tained in an exception appearing upon a record, vi^hich, if imper-
fect, should have been corrected by the appellant. Schoepflin v.
Coffey (1900), 162 N. Y. 12.

Where, upon an argument in the Court of Appeals, a party
presented an offer to withdraw his proposed amendments to the
case below, which had been presented to the referee who had tried
the action, after he had become disqualified, by the act of the
party, to settle the case, the offer was not considered by the court,
as it was not contained in the appeal papers and did not appear
to have been presented to the court below. Leonard v. Mulry,
(1883), 93 ISr. Y. 392.

The Court of Appeals cannot disregard the record and look
beyond its statement of the proceedings upon the trial, for the
purpose of reviewing an alleged error of the court below in re-
fusing the admission of evidence claimed on appeal to have been
offered for a purpose other than that stated in the record. Corley
V. McElmeel (1896), 149 N. Y. 228.

The jurisdiction of the Court of Appeals is confined to a re-
view of the determination actually made by the court below, and
must be had upon the same papers which were before the Appel-
late Division. N. Y. Cable Co. v. Mayor of K Y. (1887),
104 K Y. 1.

Appeals, except only in cases of judgment of conviction for
murder in the first degree, can only go to the Court of Appeals
through the Appellate Division and the Court of Appeals has
authority only to consider the case presented to and passed upon
by the Appellate Division. A finding may not be stricken out
pending an appeal to the Court, of Appeals. Ward v. Ward
(1909), 133 App. Div. 73.

Judgment of Appellate Division. — The judgment entered
upon the decisive order of the Appellate Division in an action,
although entered in the office of the county clerk, is nevertheless
the judgment of the Appellate Division, for it is the judgment
from which any appeal to the Court of Appeals must be taken.
Bulkley v. Whiting Mfg. Co. (1910), 136 App. Div. 479.

Under section 1339 of Code. — Unless the return on an appeal
from a judgment rendered by the Appellate Division upon a

Kule 1] The Eettjen. 19

verdict subject to the opinion of the Appellate Division includes
a case containing a statement of facts and of the questions of law
arising thereon and the determination of the Appellate Division
upon such questions, prepared and settled as required by section
1339 of the Code, the cause cannot be heard in the Court of Ap-
peals. It is not enough that the return contains the case as heard
by the Appellate Division, with the judgment-roll. Cowenhoven
V. Ball (1890), 118 JST. Y. 231; Reinmiller v. Skidmore (1875),
59 .N. Y. 661; People v. Featherly (1892), 131 N. Y. 597. The
facts presented in such statement are the only ones to be con-
sidered by the Court of Appeals ; and if the statement is defective
in any respect it must be sent back to the court below for correc-
tion. Jaycox V. Cameron (1872), 49 IST. Y. 645.

Under section 999 of Code. — Where, after a verdict, a motion
made pursuant to and upon the grounds stated in section 999 of
the Code of Civil Procedure to set it aside is granted, an appeal
to the Court of Appeals, from a judgment entered upon the ver-
dict pursuant to an order of the Appellate Division reversing the
order setting aside the verdict, should not be dismissed for failure
to prepare and settle a case as required by section 1339 of the
Code, but the appeal may be heard upon a case prepared and
settled in the usual manner. South Bay Company v. Howey
(1907), 190 K Y. 240.

Amendments. — After a return has been filed in the 'Court of
Appeals, the court below so far retains jurisdiction as to enable
it to make such amendments as it shall deem proper, and when
such an amendment has been duly filed with the clerk of the
Court of Appeals it is to be regarded as part of the original
return. Peterson v. 'Swan (1890), 119 K Y. 662. See Birn-
baum V. May (1902), 170 IST. Y. 314. (See further as to amend-
ment of return, under Rule II.)

Where findings are incorrectly stated in case on appeal to
General Term, Court of Appeals cannot correct. Binghamton
Opera House Co. v. Binghamton (1898), 156 N. Y. 651.

Omissions. — The Court of Appeals cannot review an order
which does not appear in the record and in regard to which no
papers are found therein, although the notice of appeal to that
court assumes its existence. Zapp v. Miller (1888), 109 IST.
Y. 51.

20 Court of Appeals Peactice. [Eule 1

An appellant cannot take advantage or complain of the omis-
sion from the return or case before the Court of Appeals, of a
paper which it was his duty to insert. Struthers v. Pearee
(1873), 51 ]Sr. T. 365.

Upon appeal from an order affirming an order for a new tax-
ation of costs, the papers referred to in the notice of appeal and
in the Special Term order were not before the Court of Appeals,
but the papers contained a copy of a memorandum which was be-
fore the Greneral Term, containing an extract from the judgment
and the costs as taxed, and endorsed by the attorneys for the re-
spective parties "Approved and assented to, as and for papers on
appeal." It was held, the appellant being the same as in the
court below, that the memorandum might be presumed to contain
all considered by his coixnsel material to present the question in-
tended to be raised, and it showing nothing which alone or vsdth
other matter in the case made the appellant's objection intel-
ligible, the order appealed from was aiErmed. CreshuU v.
Mullen (1887), 104 K T. 660.

Where a General Term order recited the facts of an appeal
from the order of Special Term considered therein, it was as-
sumed that such an appeal was taken, although no notice thereof
was contained in the case. Struthers v. Pearee (1873), 51 !N'. T.
365 (supra).

Upon an appeal from an order reducing the fees charged by a
referee appointed to sell, the return did not contain the papers
in the action, but consisted of the referee's report. of sale and the
order appealed from. The rejDort stated that it was made " in
partition; " and it was held that this statement, being uncontra-
dicted, was sufficient to show that the sale was in a partition suit.
Hobart v. Hobart (1881), 86 K Y. 636.

Where the return in an action tried by the court contained no
statement of facts found by the trial court, as required by the
Code, but only a statement of facts signed by the presiding
justice of the General Term which heard the case on appeal, the
appeal to the Court of Appeals was dismissed, in Essex County
Bank V. Russell (1864), 29 N. Y. 673.

Where the return in a cause tried by the court or a referee
contains no case showing that any question was raised or any
exceptions taken, and no findings of the court or report of referee,

Eule 1,] The Ketuen. 21

with exceptions, the Court of Appeals has no jurisdiction, and no
appeal lies. Smith v. Starr (1877), 70 N. Y. 155. And an
appeal, in such a case from an order dismissing the complaint
does not bring up for review the proceedings on the trial. Id.

Where the court below has received and acted upon papers im-
perfect in that the case did not appear to have been settled or
signed by the trial judge or referee as required by section 997 of
the Code, still when such papers constitute the return to the
Court of Appeals, that court must receive them as sufficient.
Eeese v. Boese (1883), 92 N. Y. 632. But where the record on
appeal in a case tried by the court contained a paper headed " re-
quests to find," also another paper containing exceptions to as-
sumed refusals of the requests, but there was no " note upon the
margin " of the requests as required by section 1023 of the Code,
or elsewhere, showing how, if at all, the propositions were dis-
posed of, or that the attention of the court had been called to
them, it was held that such assumed requests could not be con-
sidered in determining the appeal. Harris v. Van Wart (1884),
96 IST. Y. 642. And upon appeal from a judgment entered upon
a referee's report, the court cannot, in the absence of findings or
requests to find upon particular questions of fact, look into the
evidence to see if facts were proved which, if proved, would sub-
vert the judgment. Holden v. Burnham (1875), 63 IST. Y. 74.

Improper insertions. — When an order, which the Court of Ap-
peals has no jurisdiction to review, and the papers on which such
order was granted by the court below, are incorporated in the
return, they will be stricken out on motion. Smith v. Grant
(1857), 15 ]Sr. Y. 590.

It is improper to insert in a return on an appeal from a judg-
ment entered after a second trial any of the proceedings at, or
ease made on, the first trial; and if this is done, such improper
portions will be stricken out by the Court of Appeals on motion.
Ferguson v. Ferguson (Ct. App. 1852), 7 How. Prac. 217; Bissel
V. Hamlin (1859), 20 K Y. 519; Wilcox v. Hawley (1864), 31
N". Y. 648. (See, also, as to defective returns, cases cited under
Rule II.)

Appeal perfected; undertaking; time prescribed for filing return.

The provisions of section 1326 of the Code, requiring an under-
taking for costs to perfect the appeal, apply to appeals from

22 CouET OF Appeals Peactice. [Kule 1

orders as well as to appeals from judgments ; Cowdin v. Teal
(1876), 67 ISr. Y. 581; an appeal to the Court of Appeals from
an order, as from a judgment, is, until the undertaking is given,
a mere nullity, and so is ineffectual to affect the finality of the
decision below; Ferris v. Tannebaum (N. Y. Com. PL, 1891),
15 N. Y. Supp. 2'95 ; and the courts have no power to dis-
pense with the undertaking. Architectural Iron Works v. City
of Brooklyn (1881), 85 N. Y. 652. Where, however, notice of
appeal was served in good faith, without giving an undertaking
for costs, in reliance upon an order of the court below dispensing
therewith, the Court of Appeals held that the neglect should be
deemed excusable, and that the omission might be supplied under
section 1303 of the Code. Id.

Where an appellant to the Court of Appeals has perfected his
appeal from a judgment which is thereafter amended, the Su-
preme Court is without jurisdiction to amend the notice of ap-
peal so as to include the amended judgment or to allow a further
undertaking to be filed, but that power, as well as the whole power
of amendment under section 1303 of the Code in cases appealed
to the Court of Appeals, lies wholly with that court. Moreover,
an amendment of such notice of appeal will not be allowed even
by the Court of Appeals if it would allow an appeal where the
time to take the same has expired. Bulkley v. Whiting Mfg. Co.
(1910), 136 App. Div. 479.

Surety's liability is limited to costs of appeal to Court of Ap-
peals. Bennett v.' Am. Surety Co., 73 App. Div. (1902) 468.

The appeal is perfected, so that the twenty days within which
the return must be filed begin to run, when notice of appeal, with
a proper undertaking, is given, notwithstanding the sureties are
not excepted to and do not justify and the undertaking is not ap-
proved until afterwards. Wade v. De Leyer (1875), 63 jST. Y.
318; Thompson v. Blanchard (1850), 2 K Y. 561. But see
Polito V. Pitriello (1909), 196i K Y. 517.

The appeal may be perfected by service of the requisite under-
taking at any time before the time to appeal expires, and it need
not accompany the notice of appeal. Section 1334, Code; Blake
V. Lyon Mfg. Co. (1878), 75 N. Y. 611. But the notice of ap-
peal, when served before the undertaking, as it may be under sec-
tions 1300 and 1334 of the Code, does not become effectual for

Rule 1] The Retuen. 23

any purpose until the undertaking has been given. Section 1326,
Code; Raymond v. Richmond (1879), 76 N. Y. 106.

While the Court of Appeals may permit the undertaking to be
filed nunc pro tvm,c on proper terms, it will not do so where the
amount involved is so small that a continuance of litigation would
consume most of it; Hunter v. Hatfield (1878), 73 iS'. Y. 600; 7
Wkly. Dig. 191 ; but where no undertaking has been filed or
served, the court below has no power to grant an order allowing
the appellant to perfect his appeal by filing an undertaking;
Nelson v. Tenney (1889), 113 N. Y. 616; and has no power to
stay proceedings under the judgment appealed from. Gruilfoyle
V. Pierce (1897), 22 App. Div. 131.

In Culliford v. Gadd (1892), 135 K Y. 632, it appeared that
in pursuance of a stipulation which recited that an undertaking
given on appeal to the Court of Appeals had been canceled, an
order had been entered in the Court of Appeals which gave the
plaintiff leave to file " another undertaking to perfect the appeal "
within five days and provided that the new undertaking should
have, when filed, the same force and effect as if it had been filed
and served when the first undertaking was given, and that if not
filed as specified, the appeal should be dismissed. A new under-
taking not having been filed, the appeal was dismissed. Another
appeal was thereafter taken and perfected. On motion to strike
the case from the calendar, it was held that the case was placed by
the stipulation and order on the same footing as if no imdertaking
had been given, and that the appellant had the right, within the
statutory time for appealing, to take and perfect another appeal,
and the motion was, therefore, denied.

Where an executor, upon his appeal to the Appellate Division
from an order of a surrogate adjudging him guilty of contempt,
gives the undertaking required by section 2579 of the Code, pro-
viding that he will surrender himself in obedience to the decree,
to the custody of the sheriff of the proper county, and, upon an
affirmance of the order and his appeal therefrom to the Court of
Appeals, procures by order a stay conditional upon his giving the
undertaking for costs in that court required by section 1326 of
the Code, his appeal to the Court of Appeals is, upon giving the
latter undertaking, perfected, and, as perfected, operates by the
express provisions of section 1310 of the Code as a stay of all

24 Court op Appeals Peaotioe. [Eule 1

proceedings designed to enforce the order appealed from. And it
seems that if, in such a case, the appellant, upon an appeal to the
Court of Appeals gives the required undertaking for costs in that
court, his appeal is perfected, and all proceedings are stayed,
without it being necessary to resort to a stay by order. Matter of
Pye (1897), 21 App. Div. 266. See, also, Grin v. Little, 43
Misc. Eep. 421.

An undertaking, in the usual form, upon an appeal to the Court
of Appeals taken jointly from a judgment against two defendants
severally liable, has the same effect as though each, defendant had
appealed separately, and the sureties had signed a separate under-
taking upon each appeal ; and, under the provision in such under-
taking that " if the said judgment appealed from, or any part
thereof, be affirmed, the said appellants will pay the amount," the
sureties are liable if the judgment is affirmed against one appel-
lant, tbougb reversed as to the other. Seacord v. Morgan (1867),
4 Abb. Prac. (N. S.) 249; 3 Keyes, 636.

When jurisdiction of Court of Appeals attaches.

After notice of appeal has been served and the proper under-
taking given, the Court of Appeals is so far possessed of the cause
as to be competent to make any necessary order, although the
return has not been filed. Adams v. Fox (1863), 27 N. Y. 640.
Thenceforward the jurisdiction of the Court of Appeals attaches
and the authority of the court below, except as specially preserved,
ends, so tbat, e. g., it cannot grant a motion to compel the appel-
lant to file a new undertaking; but such motion should be made
in the Court of Appeals. Parks v. Murray (1888), 109 IST. T.
646. In all matters pertaining to the appeal itself, and to the
proper hearing thereof, tbe Court of Appeals has jurisdiction,
and also in regard to all applications which by statute may be
made to that court after the taking of an appeal; but, as to all
other applications, the case is regarded as still pending in the
court of original jurisdiction, and such applications should 'be
made to that court. People ex rel. Hoffman v. Board of Educa-
tion (1894), 141 K y. 86; Bulkley v. Whiting Mfg. Co. (1910),
136 App. Div. 479. A motion, made by an attorney for appellant
who had been substituted after appeal to the Court of Appeals, for
an order directing the former attorneys to deliver to him the

Eule 1] The Eettjen. 25

papers in the case, is not properly made in the Court of Appeals,
but should be made in the court below. Id.

The pendency of an appeal in the Court of Appeals, does not
prevent a motion in the court below for a new trial on the ground
of newly discovered evidence, and, in such case, an order to trans-
mit the return on appeal to the court below is unnecessary. Henry
V. Allen (189'5), 147 IST. Y. 346.

The pendency of an appeal in the Court of Appeals is no bar to
a motion in the Appellate Division for such amendment of an
order or judgment as it may see fit to make. Birnbaum v. May
(1902), no K Y. 314.

For the purposes of a motion in the Court of Appeals to dis-
miss appeal, an appeal is to be regarded as pending when notice
of appeal has been duly served and an undertaking given and the
appellant has not abandoned the appeal. .Stevens v. Glover
(1880), 83 N. Y. 611. But until the appeal is perfected by the
filing of the requisite undertaking, there is no appeal pending in
the Court of Appeals, although a notice of appeal may have been
served; and it will not entertain a motion to dismiss appeal, or
take any action in the cause, except to strike it from the calendar.
Kaymond v. Richmond (1879), 76 IST. Y. 106, supra; Benedict
Mfg. Co. V. Thayer (1880), 82 IST. Y. 610.

This distinction, however, does not appear to be always en-
forced, and motions to dismiss appeal for failure to give under-
taking have been entertained. See e. g., Reese v. Boese (1883),
92 E". Y. 632; Nichols v. McLean (1885), 98 K Y. 458; JSTelson
V. Tenney (1889), 113 W. Y. 616; People ex rel. Blakeslee v.
Com'rs of Land Ofiice (1892), 133 IST. Y. 616. An order dis-
missing the appeal, rather than one simply striking from the
calendar, is desirable where a return has been filed, as it leads to
the issuance of a remittitur, which takes the record back to the
court below, with instructions to proceed in the cause. See
Dresser v. Brooks (1850), 2 IST. Y. 559.

Default and dismissal under the rule.

The appellant must see to it, at his peril, that the return is
actually filed in due time, or procure an extension of the time.
An appeal, regularly dismissed for want of a return, will not be
reinstated unless the appellant establishes a clear case of diligence

26 CouET OF Appeals Peactice. [Rule 1

and shows that the inexcusable default of the clerk below or an un-
avoidable accident has prevented the filing of the return, or the
extension of the time to file it. Spoore v. Fannan (1858), 16
ISr. Y. 620.

A judge of the Supreme Court has no jurisdiction to extend
the time to file the return on appeal to the Court of Appeals, ex-
cept in cases under section 1339 of the Code (p. 14, ante) ; the
power conferred by that section is limited to appeals in cases
therein mentioned. Mead v. Smith (Ct. App. 1883), 18 Wkly.
Dig. 221.

Default waived. — ^ Where the respondent has omitted to avail
himself of the neglect of the appellant to procure the return
within twenty days after the appeal was perfected, until after the
return has been made, and has, after the filing of the return,
noticed the cause for argument, the objection that the return was
not made in time is waived. Beecher v. Conradt (Ct. App.
1855), 11 How. Prac. 181.

Appeal must have been perfected. — The filing of a return to
the Court of Appeals cannot be compelled until the appeal is fully
perfected. Hence, a dismissal under Rule I will not hold where
it appears that the justification of sureties executing the under-
taking on the appeal is pending and undetermined in the court
below. Polito v. Pitriello (1909), 196 N. Y. 517.

Opening default. — A default taken on failure to file return
will not be opened where an examination of the return which
would be filed, if allowed, shows no good grounds for the appeal.
Schenck v. Bengler (1887), lOS jS^. Y. 630; S. C, sub nom.
Schenck v. Ringler, 11 Northeast. Eep. 383. But unless the re-
spondent can show some delay or inconvenience from failure to
file the return, a default taken therefor under the rule should be
relieved against upon terms, where it appears the appeal is brought
in good faith. Waterman v. Whitney (Ct. App. 1853), 7 How.
Prac. 407.

Imperfect return. — An ex parte dismissal under the rule can
only be had where there is a total failure to serve any return
witJiin the time required. Where an imperfect return has been
filed, the respondent should proceed, on notice, either under Eule
II or by motion to the court, as the case may require, for a fur-
ther or corrected return, with an alternative demand for the dis-

Rule 1] The Eetuen. 27

missal of the appeal. See Bowers v. Tallmadge (1861), 23
N, Y. 1&6; Bliss v. Hoggson (1881), 84 N. Y. 667.

Costs. — When an. appeal is dismissed with costs, general costs
follow, whether the appeal is from an order or a judgment. White
V. Anthony (1861), 23 N. Y. 164; Brown v. Leigh (1872), 50
N. Y. 427.

Practice of the clerk's office.

Filing return. — A return containing the papers required by
section 1315 of the Code, certified by the clerk of the court below,
under his hand and seal, to be copies of the originals on file in
his office, or accompanied by a stipulation in writing, in lieu of
such certification, as provided by section 3301 of the Code, under
the hands of the several attorneys required to join therein; or, on
appeal from a final judgment, a return in which the judgment ap-
pealed from and the notice of appeal to the Court of Appeals are
certified or stipulated as above to be copies of originals on file
and the judgment-roll and the case and notice of exceptions, if
any, purport to be copies of the originals thereof by having been
so certified or stipulated to the Appellate Division of the Supreme
Court (except a copy of a case under section 1339 of the Code
which must be certified or stipulated to the Court of Appeals)
will be filed by the clerk of the Court of Appeals on receipt thereof
at his office, and the cause will thereupon be entered.

The fee for filing a return is fifty cents. (Code, § 3300.)

As the cause and appearances are entered on the records of the
Court of Appeals from the notice of appeal in the return, it is
important that the title of the cause and the names of attorneys
should be correctly and fully stated therein. A note of issue is
not required.

Appeals in civil causes from judgments and from orders not
entitled to be heard under Rule XI, go upon the calendar, when
made up, in the order and by the date of filing the returns, except
as changed by ri^ht to preference. It is therefore advantageous to
transmit returns to the clerk as early as possible, to be filed and
await the ordering of a new calendar, when notices of argument
should be served and filed. (See Rules XIV and XIX.)

A notice of argument filed before the return is filed is of no
effect ; nor is one filed before an order for a new calendar is pro-

28 'Court of Appeals Peactice. [Rule 1

mulgated, except in criminal cases (see Enle IX), and appeals
from orders entitled to be heard under Rule XI.

Dismissing appeal. — The clerk, on receiving from the re-
spondent's attorney the affidavit prescribed by the rule, will, if
the return has not been filed, make a certificate to that effect, and
enter, in an established form, the proper order (which need not
be drafted by the attorney), and furnish a certified copy thereof.

The fee for certificate, order and copy, is one dollar and fifty
cents.

Clerk's fees.

§ 3300. The olerk of the Court of Appeals is entitled, for the services
specified in this section, to the following fees: For filing a notice of
appeal to that court, and all the papers transmitted therewith, fifty cents.

For filing any other paper, ten cents.

For drawing an order, twenty cents for each folio.

For entering an order, twenty cents ; and for each folio more than
two, ten cents.

For drawing a judgment, twenty-five cents; and for each folio more
than two, ten cents.

For entering a judgment, twenty-five cents; and for each folio more
than two, ten cents.

For a certified copy of an order, record, or other paper, entered or filed
in his ofiice, ten cents for each folio.

For engrossing a remittitur, ten cents for each folio.

For a certificate, other than that a paper, for the copying of which
he is entitled to a fee, is a copy, twenty-five cents.

For sealing any paper, when required, fifty cents.

Return in criminal causes.

The Code of Criminal Procedure provides as follows:

Transmission of return.

§ 532. Upon the appeal being taken, the clerk, with whom the notice
of appeal is filed, must, within ten days thereafter, without charge, transmit
a copy of the notice of appeal and of the judgment-roll, as follows:

2. If it [the appeal] be to the Court of Appeals, to the clerk of that
court.

(See, also, § 485, subd. 8, under Rule IV.)

Dismissal for want of return.

§ 534. The court may also, upon like motion [of the respondent upon
five days' notice], dismiss the appeal, if the return be not made, as
provided in § 532 unless, for good cause, the time to make such return
be enlarged. (As amended by Laws 1897, chap. 427.)

Rule 1] The Retuen. 29

Jurisdiction of Court of Appeals.

The provisions of the Constitution as to the jurisdiction of the
Court of Appeals are as follows:

After the last day of December, one thousand eight hundred and ninety-
five, the jurisdiction of the Court, of Appeals, except where the judgment
Is of death, shall be limited to the review of questions of law. No
unanimous decision of the Appellate Division of the Supreme Court that
there is evidence supporting or tending to sustain a finding of fact or a
verdict not directed by the court, shall be reviewed by the Court of
Appeals. Except where the judgment is of death, appeals may be taken,
as of right, to said court only from judgments or orders entered upon
decisions of the Appellate Division of the Supreme Court, finally determining
actions or special proceedings, and from orders granting new trials on
exceptions, where the appellants stipulate that upon affirmance judgment
absolute shall be rendered against them. The Appellate Division in any
department may, however, allow an appeal upon any question of law which,
in its opinion, ought to be reviewed by the Court of Appeals. The Legis-
lature may further restrict the jurisdiction of the Court of Appeals and
the right of appeal thereto, but the right to appeal shall not depend upon
the amount involved. The provisions of this section shall not apply to
orders made or judgments rendered by any General Term before the last
day of December, one thousand eight hundred and ninety-five, but appeals
therefrom may be taken under existing provisions of law. [Art. 6, § 9.]

The provisions of the Code of Civil Procedure on the subject,
are as follovsrs:
Jurisdiction in civil actions.

§ 190. The Court of Appeals has exclusive jurisdiction to review upon
appeal every actual determination made prior to the last day of December,
eighteen hundred and ninety-five, at a, general term of the Supreme Court,
or hy either of the superior city courts, as then constituted, in all cases in
which, under the provisions of law existing on said day, appeals might be
taken to the Court of Appeals. From and after the last day of December,
eighteen hundred and ninety-five, the jurisdiction of the Court of Appeals
shall, in civil actions and proceedings, be confined to the review upon appeal
of the actual determinations made by the Appellate Division of the Supreme
Court in either of the following cases, and no others :

1. Appeals may be taken as of right to said court, from judgments
or orders finally determining actions or special proceedings,* and from
orders granting new trials on exceptions, where the appellants stipulate
that upon affirmance, judgment absolute shall be rendered against them.

* Code Civil Proc, § 1997, the final determination of the rights of the
parties to a special proceeding instituted by State writ is styled a final order.
% 2550. The final determination of the rights of parties to a special proceed-
ing in a Surrogate's Court is styled indifferently, a final order or a final
decree.

30 CouET OF Appeals Peacticb. [Eule 1

2. Appeals may also be taken from determinations of the Appellate Divis.ion
of the Supreme Court in any department where the Appellate Division allows
the same, and certifies that one or more questions of law have arisen which,
in its opinion, ought to be reviewed by the Court of Appeals, in which
case the appeal brings up for review the question or questions so certified,
and no other; and the Court of Appeals shall certify to the Appellate
Division its determination upoh such questions.

Limitations, exceptions and conditions.

§ 191. The jurisdiction conferred by the last section is subject to the
following limitations, exceptions and conditions:

1. No appeal shall be taken to said court, in any civil action or pro-
ceeding commenced in any court other than the Supreme Court, Court
of Claims, County Court, or a Surrogate's Court, unless the Appellate
Division of the Supreme Court allows the appeal by an order made at
the term which rendered the determination, or at the next term after
judgment is entered thereupon and shall certify that in its opinion a
question of law is involved which ought to be reviewed by the Court of
Appeals.

2. No appeal shall be taken to said court from a, judgment of aflSrm-
ance hereafter rendered in an action to recover damages for a personal
injuryt or to recover damages for injuries resulting in death, or in an
action to set aside a judgment, sale, transfer, conveyance, assignment or
written instrument, as in fraud of the rights of creditors, or in an action
to recover wages, salary or compensation for services, including expenses
incidental thereto, or damages for breach of any contract therefor, or in
an action upon an individual bond or individual undertaking on appeal,
when the decision of the Appellate Division of the Supreme Court is
unanimous, unless such Appellate Division shall certify that in its opinion
a question of law is involved which ought to be reviewed by the Court of
Appeals, or unless in case of its refusal to so certify, an appeal is allowed
by a judge of the Court of Appeals.*

t § 3343, sub. 9 : A " personal injury " includes libel, slander, criminal
conversation, seduction and malicious prosecution; also an assault, battery,
false imprisonment, or other actionable injury to the person either of the
plaintiff, or of another. See McNamara v. Goldan (1909), 194 N. Y. 322.

* § 1310. * * * In a case, specified in subdivision two of section 191
of this act, a party aggrieved, upon presenting to the court proof by affidavit
that he intends to apply to the Appellate Division, rendering such decision,
for leave to appeal to the Court of Appeals, and in case such Appellate
Division shall refuse such leave, them that such party intends to apply to a
judge of the Court of Appeals to be allowed to appeal to said Court of
Appeals, and proof that an undertaking given, as prescribed in this chapter,
has been filed with the clerk with whom the judgment appealed from is entered,
shall be entitled to an order staying all proceedings to enforce such judgment,
until the granting or refusal of such leave to appeal by such Appellate
Division or a judge of the Court of Appeals. The party desiring to make
such application must do so at the same term or at the term of the said
Appellate Division next succeeding that at which judgment of aflirmance was
rendered and notice of entry thereof served upon the party aggrieved, and

Rule 1] The Return. 31

3. The jurisdiction of the court is limited to a review of questions of law.

4. No unanimous decision of the Appellate Division of the Supreme Court
that fhere is evidence supporting or tending to sustain a finding of fact
or a verdict not directed by the court, shall be reviewed by the Court of
Appeals. (Amended by Laws 1896, chap. 559 and Laws of 1898, chap. 574;
subd. 2 by Laws 1900, chap. 592.)

Review of interlocutory judgment or intermediate order.

§ 1316. An appeal, taken from a final judgment, brings up for review,
an interlocutory judgment, or an intermediate order which is specified in
the notice of appeal, and necessarily aflfeots the final judgment;
and which has not already been reviewed, upon a separate appeal
therefrom, by the court or the term of the court, to which the appeal
from the final judgment is taken. The right to review an interlocutory
judgment, or an intermediate order, as prescribed in this section, is not
affected by the expiration of the time, within which a. separate appeal
therefrom might have been taken.

Appeal from order granting new trial.

§ 1318. Where a judgment from which an appeal is taken, is reversed upon
the appeal, and a new trial is granted, an appeal cannot be taken from the
judgment of reversal; but upon an appeal from the order granting a new
trial, taken, as prescribed by law, the judgment of reversal must also be
reviewed.

Appeal from final judgment after afSrmance of interlocutory judgment.

§ 1336. Where final judgment is rendered in the court below, after the
aifirmance, upon an appeal to the Appellate Division of the Supreme Court,
of an interlocutory judgment; or after the refusal by the Appellate Division
of a, new trial, either upon an application made in the first instance, at
a term thereof, or upon an appeal from an order of the special term, or of
the judge before whom the issues, or questions of fact, were tried by a jury;
the party aggrieved may appeal directly from the final judgment to the Court
of Appeals, notwithstanding that it was rendered at a special term, or at
a trial term, or pursuant to the direction contained in a referee's report.
But such an appeal brings up, for review, only the determination of the
Appellate Division of the Supreme Court affirming the interlocutory judg-
ment or refusing the new trial.

Review in Court of Appeals.

§ 1350. Where final judgment is taken, at a special term or trial term,
or pursuant to the directions of a referee, after the affirmance, upon an
appeal to the Appellate Division of the Supreme Court of an interlocutory
■judgment; or after the refusal by the Appellate Division of a new trial,
either upon an application, made, in the first instance, at a term of the

in case said Appellate Division refuses such application, then such party
shall have thirty days, from and after service of a copy of the order of said
Appellate Division denying such application, with notice of entry, in which
to apply to a judge of the Court of Appeals, to be allowed to so appeal.

32 Court of Appeals Peagtice. [Eule 1

Appellate Division, or upon an appeal from an order of the special term,
or of a judge, before whom the issues, or questions of fact, were tried by
a jury; an appeal to the Appellate Division from the final judgment brings
up, for review, only the proceedings to take the final judgment, or upon
which the final judgment was taken, including the hearing or trial of the
other issues in the action, if any. If an appeal is taken, to the Court of
Appeals, from the determination of the Appellate Division upon the appeal
from the final judgment, the determination of the Appellate Division, afiinn-
ing the interlocutory judgment or refusing the new trial, may, at the election
of either party, be reviewed thereupon. If the respondent elects to bring it
up for review, he may take a cross-appeal therefrom, notwithstanding the
expiration of the time to take an original appeal therefrom.

Appeal in summary proceedings.

§ 2261. An appeal cannot be taken to the Court of Appeals, from a final
determination of the Appellate Division of the Supreme Court, upon an
appeal [in a summary proceeding to recover the possession of real property],
unless the latter court by an order, made at the term of the Appellate
Division where the final order is made, or the next term thereafter, allows
it to be taken.

Jurisdiction dependent upon stwtute. — The Court of Appeals
has no jurisdiction to entertain an appeal unless it is conferred by
statute; Szuchy v. Hillside C. & I. Co. (1896), 150 Is". Y. 219;
and this rule applies to special proceedings of a criminal nature ;
People ex rel. Commissioners of Charities v. CuUen (1896), 151
ISr. Y. 54; and to criminal actions. People v. Malone (1902), 169
IST. Y. 568.

The Court of Appeals has no jurisdiction except such as is con-
ferred by Constitution or statute. The right of appeal in civil
actions and proceedings is governed by sections 190 and 191 of
the Code of Civil Procedure, and in criminal actions and pro-
ceedings by sections 515 to 533 of the Code of Criminal Pro-
cedure. These provisions are exclusive, and unless they authorize
an appeal the Court of Appeals has no jurisdiction. Matter of
Jones (1905), 181 N. Y. 389.

Jurisdiction not conferred by stipulation. — ■ The Court of Ap-
peals cannot be empowered by stipulation of parties to entertain
an appeal not within its statutory jurisdiction. Hoes v. Edison
Gen. Elec. Co. (1896), 150 N. Y. 87.

Enlargement of jurisdiction. — It seems that the provisions of
the Constitution regulating the jurisdiction of the Court of Ap-

Rule 1] The Retukn. 33

peals and providing that the Legislature may further restrict it,
do not prohibit the Legislature from enlarging the jurisdiction of
the court, save only in those special cases which are expressly
-withdrawn from its review. Hence, the Legislature had power
to enact a statute (such as L. 1895, ch. 601, § 20), the effect of
which was to provide for a final review in the Court of Appeals
of a determination by a city magistrate in the city of New York
convicting a party as a disorderly person, not theretofore review-
able in that court. People ex rel. Commissioners of Charities v.
Cullen (1897), 153 W. Y. 629.

Limitation of time to appeal. — In applying the amendment of
section 1325 of the Code of Civil Procedure by chapter 418 of
the Laws of 1909, which took effect September 1, 1909, and which
provides that an appeal to the Court of Appeals must be taken
within sixty days after service of a copy of the judgment or order
appealed from, it was held, in the case of a judgment served be-
fore the amendment took effect, that the appellant- had sixty days
after September 1, 1909, within which to appeal, unless the year
that he otherwise would have had would expire within that period,
in which ease his time is limited by the expiration of that year.
Coffey V. Burke (1909), 196 K Y. 65.

Review of legislative apportionment. — The right of the Court
of Appeals to review the action of the Supreme Court in cases
relating to a legislative apportionment (see Constitution, art. 3,
§ 5) proceeds from its general appellate jurisdiction. In the ab-
sence of express legislative authority it cannot, in a proceeding
attacking the validity of an apportionment, entertain an appeal
from an order of the Appellate Division affirming an order of the
Special Term denying an application for a eommon-law writ of
mandamus, unless it affirmatively appears on the face of the order
that it was not made in the exercise of discretion ; and the juris-
diction of the court should not be strained when the effect of an
adverse decision might be to throw a general election about to be
held into inextricable confusion and chaos. Matter of Sherill v.
O'Brien (1906), 186 N. Y. 2.

While the Constitution does not expressly confer jurisdiction

upon the Court of Appeals to review an act of apportionment,

that court has such power by virtue of its general jurisdiction to

review actual determinations of the Appellate Division, provided

34 CouET or Appeals Peactice. [Rule 1

the constitutionality of the act and the procedure for its review
on appeal present a question of law. Matter of Sherill v.
O'Brien (1907), 188 N. Y. 185.

Criminal cases. — The Court of Appeals cannot review the facts
on appeal in a criminal case, except where the judgment is of
death; nor can it review any questions relating to the sufficiency
of the evidence, where the Appellate Division has affirmed a con-
viction by a unanimous decision. People v. Helmer (1898), 154
]Sr. Y. 596; People r. Miller (1902), 169 K Y. 3.39; People v.
Adams (1903), 176 N. Y. 351; People v. DeGarmo (1904), 179
K Y. 130; People v. Ferone (1909), 196 K y. 522; People v.
Thompson (1909), 198 JST. Y. 396.

It is argued, but not decided, in People v. Gaffey (1905), 182
~N. Y. 257, that the limitations upon appeals to the Court of Ap-
peals prescribed by the Constitution have no application to
criminal cases; but in People v. Maggiore (1907), 189 X. Y. 514,
it is decided that as the constitutional provision as to the con-
clusiveness upon questions of fact of a unanimous affirmance by
the Appellate Division is unqualified it precludes a review of such
questions by the Court of Appeals as well in criminal as in civil
causes.

A motion to dismiss an indictment, although not specifically
mentioned in section 485 of the Code of Criminal Procedure, is
embraced in the general provisions thereof and is included in and
becomes a part of the judgment-roll ; and an order of the trial
judge denying such a motion, made upon the ground that the de-
fendant had been compelled to testify against himself before the
grand jury, is under section 517 reviewable by the Appellate
Division, and under section 519, subdivision 3, by the Court of
Appeals. People ex rel. Hummel v. Trial Term (1906), 184
]Sr. Y. 30.

Return in criminal causes. — Where it appears from the record
on appeal that the only authentication of a charge to the grand
jury is the affidavit of a. newspaper reporter that he made and
published a copy of a paper given him by the court stenographer
purporting to be a transcript of the charge, an alleged error therein
will not be considered by the Court of Appeals. People v. Glen
(1903), 173 K Y. 395.

Amendment of criminal return. — The trial judge has power.

Rule 1] The Return. 35

iu a criminal case, on motion made upon notice to the defendant,
to amend the record on appeal by annexing thereto a copy of an
exhibit, received in evidence upon the trial and afterward lost,
where there is no doubt as to the substantial accuracy of the copy
and the judge acts, not only upon the affidavits presented, but also
upon his own recollection. People v. Flanigan (1903), 174 N. Y.
356.

Jurisdiction of criminal appeals. — The limitation upon appeals
contained in section 9, article 6 of the Constitution, applies to
civil cases only, and the jurisdiction of the Court of Appeals to
hear appeals in criminal cases rests entirely upon section 519 of
the Code of Criminal Procedure, which extends to an appeal from
an order of the Appellate Division reversing a judgment of con-
viction and granting a new trial. People v. Miller (1902), 169
K Y. 339.

Erroneous designation of judgment as order. — "Where a judg-
ment of conviction was affirmed by the Appellate Division by a
paper which, although named an order, is in form a judgment
affirming the judgment of conviction, and the notice of appeal
therefrom to the Court of Appeals refers to it as an order, but the
judgment is sufficiently identified from the date and reference
made thereto in the notice of appeal, such defect may be treated
as a clerical error not affecting the validity of the notice as an ap-
peal from the judgment. People v. Canepi (1905), 181 X. Y.
398.

Intermediate orders in criminal case. — Upoia an appeal from a
judgment of conviction, the rulings upon intermediate orders or
proceedings forming a part of the judgment-roll are reviewable by
the Appellate Division, and its determinations thereon ^are review-
able by the Court of Appeals. People v. Canepi (1905), 181
E". Y. 398.

Unanimous decision of Appellate Division. — A quorum of four
justices, holding an Appellate Division of the Supreme Court, are
in contemplation of law the Appellate Division, and their unani-
mous vote of affirmance is a unanimous decision within the mean-
ing of the Constitution and the Code. Harroun v. Brush Elec.
Light Co. (1897), 152 N. Y. 212.

A judgment of the Appellate Division reciting that one of the
judges sat but did not vote, that the remaining four judges con-

36 Court of Appeals Practice. [Eule 1

curred, and tbat a judgment, wliich was rendered in an action for
personal injuries " be affirmed," is mot a unanimous affirmance,
precluding a review thereof by tlie Court of Appeals. Warn v.
K Y. C. & H. R R R Co. (1900), 163 N. Y. 525.

A decision of the Appellate Division in which all of the justices
concur is a unanimous decision, although part of the justices con-
cur in result only; and when the order and judgment entered upon
such decision do not show that it was unanimous, the Appellate
Division, at a subsequent term, although composed in part of
different justices, may, upon proper and sufficient evidence of the
fact, amend the order and judgment so as to show that the decision
was unanimous. MacArdell v. Olcott (1907), 189 K Y. 368.

To give a decision of the Appellate Division the effect of
unanimity, the record on appeal must show affirmatively that the
decision was in fact unanimous. Kaplan v. IST. Y. Biscuit Co.
(1896), 151 ]Sr. Y. 171; Matter of Marcellus (1900), 165
I^. Y. 70.

Code, section 190, subdivision 1;

Appeals as of right; final judgments in actions and orders in
special proceedings. — The provision of the Code, allowing appeals
as of right to the Court of Appeals from " judgments or orders
finally determining actions or special proceedings," refers only to
final judgments in actions and final orders in special proceed-
ings, and does not allow an appeal to the Court of Appeals from
an order in an 'action, even although it is one which ends the
litigation. An action is determined, within the meaning of the
Code, only when the issues of fact or law, if any, have been tried
and decided and the final judgment entered, which judicially
settles the controversy between the parties. Van Arsdale v.
King (1898), 155 IT. Y. 325. It is not enough that the action
or special proceeding be ended by the judgment or order; it
must be determined on the merits. Van ISTostrand v. Van
ITostrand (1908), 125 App. Div. 718.

Orders granting new trial. — The right of the Court of Ap-
peals to review an order which reverses a judgment in an action
and grants a new trial, where the appellants stipulate for judg-
ment absolute in the event of affirmance, does not extend to
orders granting new hearings in special proceedings, and hence

Bule 1] The Retdkn. 37

doea not extend to an order reversing a decree of a Surrogate's
Court and directing a new hearing. Matter of Gibson (1909),
195 K Y. 466.

Time to appeal. — The fact that a notice of entry of an order
of the Appellate Division refers to the final entry in the office
of the county clerk, vrithout referring to the preliminary entry
in the office of the clerk of the Appellate Division, does not ren-
der the notice insufficient to limit the time to appeal from the
order. Guarantee Trust Co. v. P. R. & N. E. R. R. Co. (1899),
160 E". T. 1.

No right of appeal conferred by section 1325 of the Code. —
Section 1325 of the Code of Civil Procedure, providing that an
appeal to the Court of Appeals from an order must he taken
within sixty days after service of a copy of the order and notice
of its entry, confers no right of appeal, but merely limits the
time within which appeals must be taken where the right exists.
Steamship Richmond Hill Co. v. Seager (1899), 160 K Y. 312.

Non-appealaile orders. — An order of the Appellate Division,
affirming an order of Special Term directing the permanent re-
ceiver of an insolvent domestic corporation, appointed by a final
judgment in an action brought by the Attorney-General for the
dissolution of the corporation, to pay, out of the fund in his
hands, the claim of a creditor of the corporation made upon an
application by the creditor in the action for dissolution, is not an
order finally determining an action or special proceeding, and
hence is not appealable as of right to the Court of Appeals.
People V. Am. Loan & Trust Co. (1896), 150 N. Y. 117; People
V. St. Nicholas Bank (1896), 150 IST. Y. 563.

An appeal does not lie to the Court of Appeals from an order
of the Appellate Division which reversed an order of a County
Court denying, without passing upon the merits, a motion to con-
firm an inquisition in proceedings de lunatico inquirendo, and
remitted the proceedings to the County Court for the exercise of
the discretion conferred upon it as to the confirmation of the in-
quisition and the appointment of a committee. Matter of Wells
(190-2), 169 N. Y. 595.

An order setting aside orders directing the examination of the
plaintiff as a party before trial and dismissing the complaint,
being an order made in an action and not a final order in a spe-

38 CouET OF Appeals Peactice. [Eule 1

cial proceeding, is not reviewable in the Court of Appeals.
Murphy v. Walsh (1902), 169 K Y. 595.

Interlocutory judgment. — An interlocutory judgment direct-
ing the trustees of a corporation in dissolution to make a final
accounting is not rendered a final judgment and so appealable to
the 'Court of Appeals by the insertion of a provision that the
plaintiff recover costs. Osborn v. Cardeza (1904), 180 N. Y. 69.

Foreclosure. — An order determining the petition of a claimant
for payment from a receiver appointed in a pending action for the
foreclosure of a corporation mortgage is not a final order in a
special proceeding, and hence is not appealable to the Court of
Appeals as a matter of right. Guarantee Trust Co. v. P. E. &
~S. E. E. E. Co. (1899), 160 K Y. 1.

A judgment of foreclosure, while in other respects interlocu-
tory, is final for all purposes of review. Nutt v. Cuming (1898),
155 ISr. Y. 310.

A judgment which, although finally determining certain mat-
ters in controversy, orders an accounting before a referee, is an
interlocutory, not a final judgment, and is not appealable to the
Court of Appeals as matter of right. McKeown v. Officer
(1891), 127 N. Y. 687.

Remittance for further consideration helow — intermediate
orders. — When an appeal from the aflirmance of a final judgment
also brings up for review an order dismissing an appeal from
orders on the ground that they were not " intermediate " within
the meaning of section 1316 of the Code of Civil Procedure, and,
consequently, not reviewable, and the Court of Appeals decides
that the orders were intermediate and involve qiiestions which
the appellant was entitled to have considered below, but which
the Court of Appeals is without power to consider, it will reverse
the order of dismissal and remit the case to the Appellate Division
for consideration of the questions presented by the appeal from
the orders. Fox v. Matthiessen (1898), 155 N. Y. 177; Taylor
V. Smith (1900), 164 K Y. 399.

Final order on intermediate accounting by general assignee. — ■
An order of the Appellate Division affirming, with modifications
as to the priority of payment of claims and as to commissions and
costs, an order of the Special Term confirming the report of a
referee in a proceeding under section 11 of the General Assign-

Eiule 1] The Retuen. 39

ment Act (L. 1877, ch. 466), for the settlement of an assignee's
account, allowing the account, adjusting the claims of creditors
and directing payment thereupon, relieving the assignee from lia-
bility for all matters included in his account, and releasing his
sureties to that extent, is a final order in a special proceeding
and therefore appealable as of right to the Court of Appeals,
although the proceeding was intermediate in the sense that the
assigned estate was not then ready for final distribution. Matter
of Talmage (1899), 160 N. y. 512.

Final order on intermediate accounting by executors. — An
order of the Appellate Division, affirming an order or decree of a
Surrogate's Court settling an intermediate account of executors
and awarding commissions thereon, in a proceeding for that pur-
pose, and determining the rights of the parties to the extent that
it actually adjudged them, is an order finally determining a
special proceeding, and therefore appealable as of right to the
Court of Appeals. Matter v. Prentice (1899), 160 N. Y. 568.

Removal of city magistrate. — A proceeding in the Appellate
Division for the removal of a city magistrate of the city of New
York is not a special proceeding, and an appeal therein does not
lie to the Court of Appeals as matter of right. Matter of Droege
(1909), 197 1ST. Y. 44.

Admission to har and disbarment. — Proceedings for admis-
sion to the bar and for removal or suspension from practice are,
by reason of their unique conditions, deemed to be special pro-
ceedings, and final orders of the Appellate Division therein are
appealable as matter of right. ]\ratter of Cooper (1860), 22
K Y. 67; Matter of Droege (1909), 197 N. Y. 44.

Attorney's lien. — An application by attorneys in a proceeding
in a Surrogate's Court for an accounting, to vacate the satisfaction
of a decree rendered therein, on the ground that it was executed
in disregard of their lien for services and by collusion, is a special
proceeding, and an order of the surrogate vacating the satisfaction
is a final order in that proceeding, reviewable by the Court of
Appeals. Matter of Eegan (1901), 167 N. Y. 338.

Where, in a proceeding to enforce an attorney's lien, the Ap-
pellate Division reverses an order of Special Term appointing a
referee to ascertain and report the value of the petitioner's serv-
ices, and in addition denies the application, thus depriving the

40 Court of Appeals Peactice. [Eule 1

petitioner of his lien, it becomes a final order in a special pro-
ceeding and is appealable to the Court of Appeals. Matter of
King (1901), 168 N. Y. 53.

An order of the Appellate Division reversing an order of the
Surrogate's Court, which, upon the petition of an attorney for
the contestant, continued a proceeding for a compulsory account-
ing by an administratrix who had made a secret and collusive
settlement with his client and had procured the client's agree-
ment to withdraw his objections and to consent that her account
be allowed as filed, for the purpose of allowing the attorney, who
claimed a lien upon and recovery to which his client would have
been entitled on the accounting, to establish such lien, which order
of the Appellate Division denied and dismissed the petition,
ordered the objections to the account withdrawn and the account
as filed approved, is a final order in a special proceeding, and
therefore appealable to the Court of Appeals. Matter of Fitz-
simons (1903), 174 K Y. 15.

An application by the attorney of record of the plaintiff in
an action, to vacate a satisfaction of judgment executed by the
client, and to conforce the judgment by execution to the extent
of the attorney's lien thereon, based upon facts wholly distinct
from those passed upon on the trial of the action, is a special pro-
ceeding and not a motion in the action; and, hence, an order of
the Appellate Division, afirrming an order granting the applica-
tion, is appealable to the Court of Appeals, as an order finally
determining a special proceeding. Peri v. N. Y. Central E. R.
Co. (1897), 152 K Y. 521.

Contempt. — ^A proceeding to punish the defendant in an action
for contempt, to enforce a civil remedy, instituted by an order to
show cause, is a proceeding in the action and not a special pro-
ceeding; and an order made therein, even if final, not being in a
special proceeding is not appealable as of right to the Court of
Appeals. Ray v. N. Y. Bay Extension R. R. Co. (1898), 155
N. Y. 102 ; Jewelers Mer. Agency v. Rothchild (1898), 155 N. Y.
255; Douglass v. Halstead (1899), 161 IST. Y. 621; Holton v.
Robinson (1901), 167 IST. Y. 616; and this applies to an order
on a motion to punish the defendant for contempt in failing to
pay alimony under a judgment of divorce. Clark v. Clark
(1909), 195 N. Y. 612; but an order punishing the wilful dis-

Riile 1] The Eetubn. 41

obedience of an injunction, constituting a criminal contempt, is
appealable to the Court of Appeals. People ex rel. Negus v.
Dwyer (1882), 90 N. Y. 402; People ex rel. Steams v. Marr
(1905), 181 N. Y. 463.

Proceedings taken under section 915 of the Code of Civil Pro-
cedure to punish a witness for contempt in failing to give testi-
mony for use in another State constitute a special proceeding, and
the final order therein, from which an appeal will lie to the Court
of Appeals, as a matter of right, is that which punishes or re-
fuses to punish the witness. No appeal lies to the Court of Ap-
peals from an order which merely directs the witness to answer
specified questions and is, therefore, interlocutory in its char-
acter. Matter of Strong v. Randall (1904), 17'7 N. Y. 400.

Order of restitution. — Even if an order of restitution of the
Appellate Division, made under section 1323 of the Code of Civil
Procedure, is to be deemed a final order in a special proceeding,
which is doubtful, it is a discretionary order, and, consequently,
cannot be reviewed by the Court of Appeals in the absence of a
certificate. Merriam v. Wood & Parker Lith. Co. (1898), 155
K Y. 136.

Certiorari. — ^An order of the Appellate Division which not
only reverses an order of Special Term quashing a writ of
certiorari to review an assessment, but also reinstates the writ and
remifts the proceedings to the Special Term for its determination
upon the merits, is not an order finally determining a special pro-
ceeding, and hence is not appealable as of right to the Cburt of
Appeals. People ex rel. Bronx Gas Co. v. Barker (1898), 155
ISr. Y. 308.

Habeas corpus. — Although, by force of section 20'58 of the
Code of Civil Procedure, no appeal lies even to the Appellate
Division from an intermediate order in habeas corpus, still if on
such an appeal the Appellate Division renders a final order, the
latter order is reviewable by the Court of Appeals. People ex
rel. Duryee v. Duryee (1907), 188 N. Y. 440.

Order appointing commissioners. — An order of the Appellate
Division, affirming an order of the Special Term appointing com-
missioners to ascertain the damages of a property owner by rea-
son of a change of grade of a village street, although made in a
special proceeding is not a final order, and hence is not appeal-
able as of right. Matter of Grab (1898), 157 N. Y. 69.

■i2 CouET OF Appeals Peactice. [Rule 1

Public Service Commission. — The Public Service Commission
is entitled to prosecute an appeal to the Court of Appeals from
an order of the Appellate Division which annulled its determina-
tion denying an application by a railroad company for permission
to construct and operate an extension of its road. People ex rel.
South Shore Trac. Co. v. Willcox (1909), 196 N. Y. 212.

Municipal investigation. — An order made by a justice of
the Supreme Cburt, and affirmed by the Appellate Division, de-
termining, as a result of the investigation, a summary investi-
gation into the financial affairs of a village instituted by tax-
payers and freeholders, under the General Municipal Law (L.
1892, ch. 68o, section 3), is reviewable as a final order in a
special proceeding. Matter of Taxpayers of Plattsburg (1898),

157 ]sr. y. 78.

Interlocutory judgment. — An appeal does not lie to the Court
of Appeals from an interlocutory judgment unless allowed by the
Appellate Division; and, where not so allowed, such an appeal
must be dismissed. Anderson v. Daley (1899), 159 X. Y. 146.

Dissolution of corporation. — A proceeding for the voluntary
dissolution of a corporation under the statute is a special pro-
ceeding, and a final order made therein is reviewable as of right
by the Court of Appeals. Matter of Hulbert Pro's & Co.
(1899), 160 K Y. 9.

Execution against person. — An order of the Appellate Divi-
sion, reversing an order vacating an execution against the person
of the judgment debtor, is not a final order in a special proceed-
ing. 'Steamship Eichmond Hill Co. v. Seager (1899), 160 X.
Y. 312.

Final order under Railroad Laiv. — An order of the Ap-
pellate Division directing the Board of Railroad Commissioners
to issue a certificate of public convenience, in a proceeding for
that purpose, is a final order in a special proceeding, and, in the
absence of any provision in the Railroad Law giving the right to
appeal to the Court of Appeals, is appealable imder section 190
of the Code so far as questions of law are concerned. ^Matter of
Wood (1905), 181 K Y. 93.

Presentment of grand jury. — The Court of Appeals has no
power to review an order of the Appellate Division affirming an
order of a County Court denying a motion to strike from its

Rule 1] The Return. 43

minutes a presentment of a grand jury censuring public officers.
Matter of Jones (1905), 181 IST. Y. 389.

Order vacating service of summons. — An order of the Appel-
late Division, which reverses an order of Special Term denying
a motion to set aside the service of summons in an action and
grants the motion, is not appealable as of right. Kramer v.
Buffalo Union Furnace Co. (1909), 196 K. Y. 532.

Order refusing to bring in party. — ^An order of the Appellate
Division, which affirms an order denying a motion to bring in
an additional party, is not appealable as of right. Elmore &
Hamilton Contracting Co. v. The State (1909), 196 N. Y. 531.

Appointment of trustee. — An order of the Appellate Division,
affirming an order of the Special Term which vacated a former
order appointing a trustee under a will in place of a deceased
trustee, is a final order in a special proceeding and, therefore,
may be appealed from to the Court of Appeals. Matter of Earn-
shaw (1909), 196 N. Y. 330.

Examination before action. — A proceeding for the examination
of witnesses before the commencement of an action, under the
Act to Prevent ^Monopolies (L. 189-7, chap. 383), is not a special
proceeding; and an order of the Appellate Division affirming an
order vacating an order for such an examination granted ex parte
by a justice of the Supreme Court under section 5 of the act, is
not an order finally determining a special proceeding and is not
appealable to the Court of Appeals. Matter of Attorney-General
(1898), 155 X. Y. 441.

Election Law. — An order of the Appellate Division of the
Supreme Court finally determining a proceeding by mandamus
under section 114 of the Election Law (L. 1896, chap. 909), for
the recount of ballots objected to as marked for identification or
rejected as void, and presenting a question of law for review, is
appealable as of right to the Court of Appeals as an order finally
determining a special proceeding. People ex rel. Feeny v. Board
of Canvassers (1898), 156 ^. Y. 36.

Foreclosure of corporation mortgage. — Orders of the Appellate
Division, reversing orders of the Special Term, made upon a
motion to determine whether the fund in question was covered
by the lien of a corporation mortgage then being foreclosed by
an action in which a sequestration receiver and a foreclosure re-
ceiver had been appointed, settling the account of the foreclosure

44 CouET OF Appeals Peactice. [Rule 1

receiver and refusing to direct the attorney for the sequestration
receiver to pay over to the former money in his hands, are not
final orders in a special proceeding, but are orders in the fore-
closure action, and therefore not appealable as matter of right.
W. Y. Security & Trust Co. v. Saratoga Gas & El. L. Co. (1&98),
156 K Y. 645.

Condemnation proceeding. — An order of the Appellate Di-
vision, reversing an order of the Special Term vacating a final
order and judgment in a condemnation proceeding, is not a final
order in the special proceeding, vrithin the meaning of the 'Con-
stitution and section 190 of the Code, and therefore is not appeal-
able as of right. City of Johnstown v. Wade (1898), 157
]Sr. Y. 50.

Judicial accounting.— An order of a Surrogate's Court, deny-
ing an application to open the decree entered in a proceeding for
the final judicial settlement of an executor's accounts and to
require a further accounting is not an order "finally deter-
mining " the special proceeding, and therefore an order of the
Appellate Division affirming the same is not appealable as of
right to the Court of Appeals. Matter of Small (1899), 158
]Sr. Y. 128.

Orders on judicial sales. — Orders requiring the purchaser to
complete, or relieving him from, his purchase at a sale in fore-
closure or partition are, when they present solely questions of
law, reviewable by the Court of Appeals as being final orders in
special proceedings. Holme v. Stewart (1898), 155 N. Y. 695;
Smith V. Secor (1898), 157 IST. Y. 403; Kingsland v. Fuller
(1899), 157 ISr. Y. 507; Merges v. Eingler (1899), 158 K Y.
701; Trustees of Church v. Mullowney (1909), 164 W. Y. 578;
Parish v. Parish (1903), 175 IST. Y. 181.

An order deciding an application, made on the foot of the
judgment in foreclosure, to compel a defaulting purchaser on a
foreclosure sale to execute a deed of the property bid off by him
thereat, to a purchaser on a resale, is not reviewable by the Court
of Appeals as matter of right. Knickerbocker Trust Co. v.
Oneonta By. Co. (1910), 197 W. Y. 391.

In the case of private judicial sales, such as a sale by a receiver
appointed by the court, the question of compensation to a person
relieved from completing his purchase rests in the discretion of

Rule 1] The Retuen". 4:5

the court, and its determination thereon is not reviewable by the
Court of Appeals. People v. N. Y. B. L. Banking Co. (190^7),
189 N. Y. 2313.

Surplus proceedings. — A proceeding for the disposition of sur-
plus moneys arising from a mortgage foreclosure is a special
proceeding, and an appeal from an order of distribution therein
lies to the Court of Appeals without permission. Velleman v.
Eohrig (1908), 193 N". y. 439.

New trial on exceptions. — ^An order granting a new trial on
exceptions, within the meaning of the provision which authorizes
appeals, as of right, to the Court of Appeals, from orders of the
Appellate Division " granting new trials on exceptions, where the
appellants stipulate that upon affirmance judgment absolute shall
be rendered against them," may be founded on an exception filed,
as provided by the Code of Civil Procedure (section 1022), to a
decision which does not state separately the facts found. Otten
V. Manhattan R. Co. (1896), 150 IST. Y. 395.

Under the Constitution, the Court of Appeals has no jurisdic-
tion to review an appeal from an order granting a new trial on
exceptions unless accompanied by a stipulation for judgment
absolute in case of affirmance, even though the Appellate Division
has allowed the appeal and certified a question of law for review.
Mundt V. Glokner (1899), 160 N. Y. 5Yl; N. Y. C. & H. R.
R. Co. V. State of K Y. (1901), 166 K Y. 286.

An order and judgment of the Appellate Division reversing an
interlocutory judgment and granting a new trial is not review-
able by the Court of Appeals upon the ground that the appeal
is from an order granting a new trial upon a motion made upon
exceptions under section 1001 of the Code of Civil Procedure,
where the record fails to disclose that the Appellate Division in
any way disposed of or decided the exceptions. Townsend v.
Van Buskirk (1900), 162 W. Y. 265.

Assessment. — Order of Appellate Division affirming an order
to vacate an assessment is a final order and reviewable by Court
of Appeals. In re Munn, 165 ]S^. Y. 149, 58 IST. E. 881.

An order of the Appellate Division, affirming an order appoint-
ing commissioners in a railroad condemnation proceeding is not
appealable as of right. IST. Y., Lack. & West. Ry. Co. v. Erie
R. R. Co. (1899), 161 K Y. 616.

46 CouET OF Appeals Peactice. [Eule 1

Attachment. — Appeal does not lie from an order by the Appel-
late Division denying a motion to vacate vrarrants of attachment.
Hammond v. Nat. Life Ass'n, 168 ]S:. Y. 262, 61 N. E. 244.

Direction to guardian. — An order directing resumption of cer-
tain payments by a guardian of the property of an infant to the
guardian of the person is not reviewable by Court of Appeals.
Matter of White, 95 App. Div. 104.

Order disynissing appeal. — ISTo appeal can be taken to the Court
of Appeals from an order of the Appellate Division dismissing an
appeal from the judgment below, but the proper practice is to
enter a judgment of dismissal upon the order and then appeal
from such judgment. Stevens v. Central Xat. Bank (1900).
162 N. Y. 253.

An order of the Appellate Division dismissing an appeal from
an order amending a judg-ment is not appealable to the Court of
Appeals. Van i\"^os,trand v. Van J^ostrand (1908), 125 App.
Div. 718.

Incomijetent person. — An order charging the committee of an
incompetent person with a certain sum upon the report of a referee
appointed to take and state the account, is a final order in a
special proceeding. Matter of Chepman (1901), 162 !N^. Y. 456.

Alimony. — A reversal, with denial of the application, by the
Appellate Division of an order of the Special Term granting an
application to modify a decree for alimony by reducing the
amount, is reviewable by the Court of Appeals, since it is either
a final order in a special proceeding or a final judgment in an
action. "Wetmore v. Wetmore (1900), 162 IST. Y. 503; Livingston
V. Livingston (1903), 173 N". y. 377.

Insolvent debtor. — A motion under section 2182 of the Code of
Civil Procedure to cancel a jiidgment against a discharged insolv-
ent debtor is a special proceeding, and a final order thereon is
reviewable as of right by the Court of Appeals. Duer v. Hunt
(1900), 162 N. Y. 605.

Order setting aside assessment for local improvement. — An
order in a special proceeding instituted by a property-iowner to
review an assessment levied for a local improvement, which sets
aside the assessment not only as to him but as to all the property-
owners, is a final order determining the proceeding and is appeal-
able to the Court of Appeals. Matter of :Munn (1900), 165 X.
Y. 149.

Rule 1] The Retuen. 47

Order in proceeding under Condemnation Law. — An order
and judgment entered on a decision of the Appellate Division
which not onl^y reversed an order and judgment of the Special
Term condemning water rights of the defendant in favor of the
plaintiff, in a proceeding instituted under the Condemnation Law
(Code Civ. Proc, § 3357 et seq.), but dismissed the proceeding,
are final and appealable. Village of Champlain v. McCrea
(1901), 165 N. Y. 264.

Order reversing judgment condemning private interests in
water rights for village purposes is reviewable by Court of Ap-
peals. Champlain v. McCrea, 165 N. Y. 264; Matter of King,
168 ]Sr. Y. 53.

In a condemnation proceeding under a statute which provided
that " in case of a new appraisal the second report shall be final
and conclusive," it was held that this did not apply where the
first report was set aside by the Special Term and new commis-
sioners appointed ; but that such first report must be regarded as
no appraisal and no report, and the report of the new commis-
sioners as an original report, whose confirmation was reviewable
by the Appellate Division and the Court of Appeals. Matter of
Daly (1907), 189 K Y. 34.

Physical examination. — An order affirming an order denying
a motion to vacate an order directing the plaintiff in an action
for damages for personal injuries to appear before a person named
for personal and physical examination, is not appealable as of
right to the Court of Appeals. Taylor v. Anglo-Swiss Condensed
Milk Co. (1900), 165 N. Y. 611.

Non-appealable orders. — An appeal does not lie to the Court of
Appeals from an order affirming an order denying a motion to
set aside and vacate a judgment of foreclosure and sale (Hull v.
Wilcox [1901], 166 JST. Y. 598) ; nor from an order afiirming an
order denying a motion for a new trial and to set aside a verdict
(Wiedeman v. Everard [1901], 166 K Y. 598); nor from an
order afiirming an order denying a motion to be made a party to
the action ( S toutenburgh v. Davison [1901], 166 iS^. Y. 636);
such order being only reviewable upon appeal from the judg-
ment. Com. Bank of Rochester v. Spencer (1879), 76! K Y. 155.

Order denying motion for new trial. — An order of the Appel-
late Division denying a motion for a new trial made upon excep-

48 CouET OF Appeals Peactice. [Rule 1

tions pursuant to section 1001 of the Code, intermediate the
interlocutory and final judgments, is not appealable as matter of
right. Young v. Gilmour (19'01), 167 IST. Y. 500.

Order resettling judgment. — ^An order resettling a judgment is
not an order finally determining a special proceeding and is not
appealable as of right to the Court of Appeals. Whalen v. Stuart
(1909), 194 N. Y. 495.

Attacliment. — ISTo appeal lies to the Court of Appeals from an
order denying a " motion herein to vacate and set aside the war-
rants of attachment and judgment in this action " mthout the
allowance of the Appellate Division, since it is an order in an
action and not in a special proceeding. Hammond v. National
Life Assn. (1901), 168 N. Y. 262.

Forfeited recognizance. — An appeal does not lie as of right to
the Court of Appeals to review an order denying a motion to
vacate a judgment entered upon a forfeited recognizance. People
V. Clark (1901), 168 IST. Y. 676; People v. Baker (1901), 168
K Y. 677; People v. Eussell (1902), 171 N. Y. 655.

Conditional order not final. — Aa order of the Appellate Divi-
sion m^ade in certiorari proceedings imposing as a condition for
the reinstatement of relator, a member of the police force of the
city of ISFew York, that he should stipulate not to claim back
salary from the date of his dismissal from the force, but contain-
ing no provision as to the disposition of the proceedings if the
stipulation was not given, does not finally determine the proceed-
ings in the absence of the stipulation and is not appealable to the
Court of Appeals. People ex rel. Hart v. York (1902), 169
K Y. 452.

Modified final order. — A Special Term order which modifies
and corrects a final order in a special proceeding thereby becomes
the final order in that proceeding, and an order of the Appellate
Division reversing it is reviewable by the Court of Appeals.
Matter of Board of Education (1902), 169 IST. Y. 456.

Failure to enter judgment on order of affirmance. — An order
of the Appellate Division which reversed a determination of the
Special Term setting aside a verdict on the ground of newly-dis-
covered evidence and granting a new trial, and affirmed the judg-
ment of the trial court entered upon the verdict, is not reviewable
upon the merits by the Court of Appeals; and an appeal there-

Eiile 1] The Eetuen. i9

from, even if allowed by the Appellate Division and question
certified, must be dismissed when the record does not disclose the
entry of a judgment of affirmance, nor any appeal therefrom, if
it had in fact been entered. Reiss v. Town of Pelham (1902),
170 ]Sr. Y. 54. See, also, Moore v. Bd. of Education (1909),
195 N. Y. 601.

Appeal from judgment of reversal on demurrer, — ^A judgment
of the General Term reversing an interlocutory judgment of the
Special Term on demurrer and holding the demurrer well taken
and directing a final judgment unless the plaintiff should amend
within a certain time does not, when perfected by entry of a
final judgment dismissing the complaint on failure of the plain-
tiff to amend, become a final and actual determination by the
General Term upon the issue raised by the demurrer appealable
to the Court of Appeals; but the proper mode of bringing the
question to the Court of Appeals is by an appeal through the
Appellate Division from the judgment so entered. Abbey v.
Wheeler (1902), 170 K Y. 122.

A fijial judgment entered pursuant to section 1222 of the Code
of Civil Procedure upon an order of Special Term sustaining a
demurrer and dismissing the complaint upon the merits after a
reversal by the late General Term of a final judgment overruling
the demurrer, the order of reversal giving the plaintiff leave to
amend, which he failed to do, but containing no direction for
final judgment in case of his default, is not appealable to the
Court of Appeals. Leonard v. Barnum (1901), 168 N. Y. 41.

Interlocutory judgment — review of. — When an appellant seeks
to review an interlocutory judgment he should give notice in his
notice of appeal of his intention to review the determination of
the Appellate Division affirming such interlocutory judgment and
cause the judgment of the Appellate Division to be returned with
the record so that it can be reviewed by the Court of Appeals.
An appeal in form as from an interlocutory judgment entered
in the Trial Court does not bring up for review an affirmance of
such judgment by the Appellate Division. Waldo v. Schmidt
(1910), 198 K". Y. 193.

Interlocutory judgment — direct appeal — section 1336. —
When the Appellate Division reverses part of a final judgment
and so modifies it in other respects as to make it an interlocutory
4

50 CouET OF Appeals Peactice. [Rule 1

judgment, the judgment thereafter rendered by the Special Term
upon the report of a referee appointed under such interlocutory
judgment is not appealable directly to the Court of Appeals, under
section 1336 of the Code, authorizing such an appeal where a
final judgment is rendered in the court below after afErmance,
upon an appeal to the Appellate Division, of an interlocutory
judgment. Hollister v. Simonson (1902i), 170 N. Y. 357.

Where the Appellate Di\'ision reverses an interlocutory judg-
ment and an order at Special Term is subsequently entered
thereon, the unsuccessful party must go through the formality of
another appeal to the Appellate Division, though in case of an
affirmance he can appeal directly to the Court of Appeals from
the judgment of the ' Special Term. McXamara v. Goldan
(190-9), 194 K Y. 315.

It is only in the case of an affirmance by the Appellate Divi-
sion of an interlocutory judgment that an appeal from the final
judgment of .Special Term thereon may be taken directly to the
Court of Appeals, since the provision of the Code on the subject
(§ 1336) mentions only affirmances and does not include r:-
versals. Will v. Barnwell (1910), 197 ISF. Y. 298.

Denial of new trial — direct appeal — section 1336.— The
provision of section 1336 of the Code that, after the refusal by
the Appellate Division of a new trial, the party aggrieved may
appeal directly to the Court of Appeals from the final judgment,
although rendered at Special Term, applies to a judgment upon
the verdict entered after the reversal by the Appellate Division
of an order granting a new trial. The reversal of such an order
is a refusal of a new trial within the meaning of the section.
South B:ay Co. v. Howey (1907), 190 N. y. 240; Girling v.
City of K^ew York (1910), 197 N. Y. 302.

Review of intermediate orders. — Section 1301 of the Code re-
lates to all appeals provided for in chapter 12 and authorized
the review by the Court of Appeals, on appeal from a final judg-
ment in an action or a final order in a special proceeding, of
those intermediate orders which are specified in the notice of
appeal. N. Y., L. & W. Ev. Co. v. Erie R. R. Co. (1902), 170
K Y. 448.

Surrogate' s decree. — An order of the Appellate Division cannot
bo reviewed by the Court of Appeals upon an appeal taken di-

Rule 1] The Return. 51

rectly from a decree of a Surrogate's Court made after and in
accordance with such order. Matter of Union Trust Co. (1902),
172 N. Y. 494.

Amendment of judgment. — An order reversing an order de-
nying a motion to amend a judgment is not appealable to the
Court of Appeals as a matter of right. Peggo v. Dinan (1902),
172 N. Y. 605.

Accounts of receiver. — An order settling the accounts of a re-
ceiver of rents and profits in an action for the foreclosure of a
mortgage, being an order in an action, is not appealable to the
Court of Appeals. Frankenstein v. Hamburger (1902), 172 N.
Y. 609.

Order discharging receiver. — Where real estate has been sold
under a testamentary power, freed from a dower right on the
admeasurement of which a receiver had been appointed, an order,
made on the petition of the purchaser, discharging the receiver
and awarding possession to the purchaser, is a final order in a
special proceeding and appealable as such. Conlon v. Kelly
(1910), 199 K Y. 43.

Delivery of booJiS and papers. — An order of the Appellate Di-
%dsion reversing an order of the Special Term granting an appli-
cation made under section 247l.a of the Code, to compel the de-
livery of books and papers to a public officer, and which denied
the application, is a final order in a special proceeding and is
reviewable by the Court of Appeals. Matter of Brenner (1902),
170 N. Y. 185.

Discovery of decedent's property. — An order punishing the wit-
ness for contempt in refusing to disclose information which was
not privileged, in a proceeding instituted under section 2707 of
the Code of Civil Procedure to discover property belonging to a
decedent's estate, is the final order in the proceeding and, there-
fore, appealable to the Court of Appeals. Matter of King v. Ash-
ley (1904), 179 K Y. 281.

Security for costs. — An order of the Appellate Division re-
versing an order requiring the plaintiff to give additional security
for costs is not appealable as matter of right. Dunk v. Dunk
(1904), 177 K Y. 264.

Dismissal of complaint. — Where a judgment dismissing the
complaint does not declare that the dismissal was upon the merits

52 CouET OF Appeals Peactice. [Rule 1

the judgment is, nevertheless, to be deemed a final one, and not
merely a nonsuit, if an inspection of the judgment-roll, on ap-
peal, makes it clearly appear that the dismissal was upon the
merits. Keys v. Smith (1906), 183 IST. T. 376.

Appeal from order granting neiv trial. — Where a judgment
of a trial court is reversed and a new trial granted, an appeal
cannot be taken from the judgment of reversal, but it must be
reviewed upon an appeal from the order granting the new trial
(Code Civ. Pro., § 1318) ; and if the judgment is not entered
until after the order, the sixty days within which an appeal must
be taken from the order (Code Civ. Pro., § 132.5) does not com-
mence to run until the entry of the judgment. Wingert v.
Krakauer (1905), 180 N. Y. 265.

Review of order denying new trial. — There is no authority for
an appeal to the Court of Appeals from an order affirming an
order denying a motion for a new trial. In such case, the appeal
must be taken from the judgment, and on such an appeal only
can the Court of Appeals review the decision below. Matter of
Hopkins (1906), 186 K Y. 580.

Code, section 190, subdivision 2.

Appeals hy allowance and certification j certified questions. —
A question certified by the Appellate Division, under section
190 of the Code, should be a distinct point or proposition of
law, clearly stated, so that it can be definitely answered
without regard to other issiies in the case, and should be
a question of law only. If a question is stated in such
broad and indefinite terms that it will admit of one
answer under one set of circumstances, and a different answer
under another, or if it presents merely an abstract proposition,
and no facts are disclosed in the record which show that it arose
in the case, the Court of Appeals will decline to answer it.
Grannan v. Westchester Pacing Asso. (1897), 153 N. Y. 449;
Hearst v. Shea (1898), 156 1\T. Y. 169'.

Where an appeal lies to the Court of Appeals as matter of
right, the scope thereof cannot be limited by the certification by
the Appellate Division of questions for review. Seaward v.
Davis (1910), 198 N. Y. 415.

Even if a notice of entry of an order fails, by reason of in-

Eule 1] The Return. 53

sufficiency, to limit the time to appeal, no ease is presented for
tlie Court of Appeals by an order of the Appellate Division al-
lowing nunc pro tunc an appeal previously taken without a pre-
requisite permission, where no appeal has been taken within sixty
days after the allowance of the right of appeal. GUiarantee Trust
Co. V. P. E. & N. E. E. E. Co. (1899), 160 IsT. Y. 1.

Questions certified to the Court of Appeals can be reviewed
only so far as they actually arose and were determined by the
Appellate Division, Schenck v. Barnes (1898), 156 X. Y. 316,
for the Court of Appeals has no jurisdiction, under this section
of the Code, to review a certified question which was not passed
tipon by the Appellate Division, Coatsworth v. Lehigh Valley
Ey. Co. (1898), 156 K Y. 451. Hence, where, on an appeal
upon certified questions, from an interlocutory judgment upon a
demurrer, it appears that the only question passed upon by the
Appellate Division was whether the complaint stated a cause of
action, the Court of Appeals will not answer other questions. Id.

On an appeal by allowance of the Appellate Division, upon
questions certified by it, nnder section 190 of the Code of Civil
Procedure, the Court of Appeals has no authority to determine
any of the questions involved except those certified for that pur-
pose. Grannan v. Westchester Eacing Assn. (1&97), 153 IST. Y.
449.

Question must require determinative answer. — ^When a case
not otherwise reviewable by the Court of Appeals is brought up
on specific certified questions, the questions should be so framed
that the answers may determine the particular controversy in-
volved in the appeal and not merely a part of it. Where the de-
cision below may stand upon several grounds, it is not enough
that the questions certified present only the weak propositions
involved in the particular ground claimed to be affected with
error, ignoring all the other grounds upon which the decision may
well stand. Blaschko v. Wurster (1888), 156 N. Y. 437.

An appeal from an order, brought up on a certified question,
will be dismissed where the answer to the question would not
necessarily determine as a matter of law whether the order should
have been granted or denied. Smith v. Brown Brothers Co.
(1909), 196 N. Y. 31.

While, on an appeal by certification, the Court of Appeals is

54 Court op Appeaxs Practice. [Rule 1

confined to the question certified, it is its duty to ascertain all
the facts that raise the question, so that it can be decided as an
existing issue between the parties, and the danger of passing upon
merely abstract propositions avoided. Baxter v. ilcDonnell
(1897), 154 N. Y. 432.

Question involving discretion. — On the certification by the x\p-
pellate Division, of the question of law whether the Supreme
Court had jurisdiction of an action for an injunction which it
had refused to entertain, the Court of Appeals cannot determine
whether the Supreme Court might in its discretion have declined
to entertain jurisdiction. Davis v. Cornue (1896), 151 N. Y.
172.

A certified question as to the propriety of the Supreme Court
exercising its discretion on a state of facts not presented by the
complaint must be regarded as containing an abstract statement
of facts and is not reviewable by the Court of Appeals. Stein-
way V. Bernuth (1901), 167 N. Y. 49-8.

Permission must precede appeal. — Where an appeal from an
order not appealable as of right has been taken to the Court of
Appeals withoiit prior permission, the Appellate Division has no
authority to grant a retroactive allowance of the appeal nunc
pro tunc. Guarantee Trust Co. v. P. E. & IST. E. R. E. Co.
(1899), 160 N. Y. 1.

An appeal taken without prior permission, from an order not
appealable as of right, is not cured by a subsequent order of the
Appellate Division purporting to allow the appeal nunc pro tunc
and certifying a question for review, made after the expiration
of the statutory time to appeal. Guarantee Trust Co. v. P. E.
& ]\\ E. E. E. Co. (1899), 160 iS\ Y. 1.

The service of a notice of appeal to the Court of Appeals from
an order other than a final order in a special proceeding, withoTit
leave of the Appellate Division, is a mere nullity; and an order
granting leave subsequently obtained does not validate the appeaL
Steamship Eichmond Ililf Co. v. Seager (1899), 160 X. Y. 312.

Time to appeal after allcirance of right. — The time to ai^peal
from an ordr-r requiring an allowance bv the Appellate Division
to create tlie right to appeal may be extended by the necessity

of obtaining;' the allowanco; niid when, by diligence, it has been
obtained, the appeal must then be taken within a reasonable

Rule 1] The Ketuen. 55

time, not to exceed sixty days. Steamship Eichmond Hill Co. v.
Seager (18990, 160 N. Y. 312.

Order assessing damages upon judgment absolute on stipula-
tion.— While an order of the Appellate Division, affirming an
assessment of damages upon a judgment absohite directed by the
Court of Appeals, is not appealable to the Court of Appeals, as a
matter of right (Bassett v. French [1898], 155 N. Y. 46), or
even when certified by the Appellate Division, where the assess-
ment of damages involves a discretion on the part of the court
or jury making the assessment (Lewin v. Lehigh Valley R. R. Co.
[1902], 169 ]Sr. Y. 336), yet, where items of damages disallowed
are definitely fixed and determined and the court making the
assessment has certified that they were rejected " as a matter of
law and not as a, matter of discretion," and the Appellate Di-
vision has certified ithat a question of law has arisen which ought
to be determined by the Court of Appeals, thereby raising ques-
tions of law as to the items rejected and bi-inging the case within
the requirements of section 190 of the Code of Civil Procedure,
the appeal is well taken and the order is reviewable in the Court
of Appeals. City Trust, etc., Co. v. Am. Brewing Co. (1905),
182 ]Sr. Y. 285.

Interlocutory judgment. — An appeal from ithe interlocutory
judgment or order which decided the question, while not review-
able of itself, is proper to enable the Court of Appeals to enter-
tain a question of law certified to it by the Appellate Division
for review. Blank of Metropolis v. Faber (1896), 150 N. Y. 2m.

The answer of the Court of Appeals to questions certified to it
for decision m\ist be limited to the questions which were before
the courts below as raised by the facts disclosed, and cannot ex-
tend to abstract propositions or contingent questions. Matter of
Robinson (1899), 160 N. Y. 448.

Allowance of appeals. — The provision of the Constitution per-
mitting the Appellate Division to allow appeals was intended to
^Pply to cases where the appeal is not given as miatter of right;
and that court has no power to allow an appeal, given as matter
of right upon certain conditions, by dispensing with the condi-
tions. Mundt'v. Glokner (1899), 160 N. Y. 571.

The provision of the Constitution empowering the Appellate
Division to " allow an appeal upon any question of law which,

5'6 CouET OB" Appeals Peactice. [Rule 1

in its opinion, ought to be reviewed by the Court of Appeals,"
applies only to the allowance of appeals from interlocutory or
nonfinal judgments and orders, and was not intended to nullify
or affect the provision which prevents the Court of Appeals from
reviewing questions as to the sufficiency of the evidence. Reed
V. McCord (189'9), 160 N. Y. 330.

The right of appeal to the Court of Appeals by allowance of
the Appellate Division, under either sections 190 or 191 of the
Code, does not become absolute until the Appellate Division haa
made the proper order allowing the appeal, and the time within
which such appeal must be taken, under section 1325 of the
Cbde of Civil Procedure, does not begin to run until such order
is granted ; but application for such leave to appeal must be made
at the term of the Appellate Division at which the order or
judgment appealed from was granted, or before the end of the
next succeeding term, and if the order allowing the appeal is not
obtained within that time, none can be subsequently granted.
Porter v. International Bridge Co. (1900), 163 'N. Y. 79; Matter
of City of K Y. (1900), 119 App. Div. 74.

Appeal^ hy alloivance, from interlocutory judgment. — The
time within which an appeal by allowance of the Appellate Di-
vision can be taken to the Court of Appeals from an interlocutory
judgment on a demurrer may be limited by notice to sixty days
after the right to appeal exists. Porter v. International Bridge
Co. (1900), 163 N. Y. 79.

Abstract questions. — The Appellate Division has no power to
certify abstract questions to the Court of Appeals for review, and
the latter court has no power to answer such questions, since it
is limited to a review of the determination of the Appellate Divi-
sion. Matter of Davis (1901), 168 K Y. 89.

Certified questions of fact. — Where, after reversing a surro-
gate's decree, passing the accounts of trustees, upon questions of
fact as well as of law, the Appellate Division certifies to the
Court of Appeals certain questions whose answers depend upon
the facts established by the evidence from which different infer-
ences may be drawn, the Court of Appeals cannot answer the
question certified, as its jurisdiction is limited to the review of
questions of law, and the power of the Appellate Division to
allow an appeal to the Court of Appeals is also limited to ques-
tions of law. Matter of Westerfield (1900), 163 IST. Y. 209.

Eule 1] The Retuen". 57

Inejfective questions. — A certified question should present a
question of law only; and if it presents a mixed question of law
and fact it is not reviewable. Matter of Opening Townsend Ave.
(1903), 175 ]Sr. Y. 508.

Questions which were not properly before the original tribunal
are not answered by the Court of Appeals, although certified to it
by the Appellate Division. Matter of Coatsworth (1899), 160
N. Y. 114.

The ^allowance of an appeal by the Appellate Division does
not require the Court of Appeals to adopt any different rule in
determining the questions which are thus brought before it from
that enforced in ordinary cases where no such allowance is neces-
sary; and where the appeal is from an order not reviewable, it
must be dismissed, notwithstanding its allowance. Caponigri v.
Altieri (190'0), 164 N. Y. 476. But see Routenberg v. Schweitzer
(1909), 165 N. Y. 175.

Form of certified question. — Each question certified to the
Court of Appeals should be separately stated, so that it can be
answered yes or no; and several propositions should not be com-
bined in a compound question, alternative in form, which cannot
be categorically answered. Devlin v. Hinman (1899), 161 N.
Y. 15; Eairweather v. Burling (1905), 181 X. Y. 117.

For examples of faulty forms of certified questions, see Malone
V. Saints Peter & Paul's Church (19'02), 172 N. Y. 269.

Scope of subdivision 2. — It is only where an appeal is allowed
under subdivision 2 of section 190 that questions should be cer-
tified to the Court of Appeals. Seaward v. Davis (1910), 198
K Y. 415.

The requirements of this stibdivision, as to certified questions,
have reference only to appeals allowed by the Appellate Division
other than appeals from judgments or orders finally determining
actions or special proceedings and from orders granting new
trials on exceptions, and do not apply to appeals that are allowed
under section 191 of the Code. Klein v. East River Elec. Light
Co. (1905), 182 K Y. 27.

Code, section 191, subdivision 1.

Appeals from inferior local courts hy allowance. — The
provisions of subdivision 1 of section 191 of the Code of
Civil Procedure, which took effect January 1, 1896, that

58 CouBT OF Appeals Peactice. [Rule 1

" no appeal shall be taken to " the Court of Appeals " in
any civil action or proceeding commenced in any court
other than the Supreme Court, County Court or a Surrogate's
Court, unless the Appellate Division of the Supreme Court al-
lows the appeal," was intended to refer only to courts existing
when it took effect, namely, inferior local courts, and does not
apply to actions commenced in superior city courts, which, by
force of the Constitution of 1894 ceased to exist' on December
31, 18915. Halliburton v. Clapp (1896), 149 N. Y. 183.

This provision applies to an action originally commenced in a
Justice's Court, ' discontinued there on the interposition of an
answer of title, and thereupon prosecuted in the Supreme Court.
Sidwell V. Greig (189'8), 157 ^. Y. 30.

The entry of a judgment on the order of the Appellate Divi-
sion affirming a judgment carried to it from the Municipal Court
of the City of New York through the Appellate Term is essential
to a review by the Court of Appeals, and the appeal to that court
must be from such judgment. Moore v. Board of Education
(1909), 195 ]Sr. Y. 601.

General statement. — In allowing an appeal under this subdi-
vision it is suiEcient and proper for the Appellate Division to
state generally that in its opinion a question of law is involved
which ought to be reviewed by the Court of Appeals. It is not
reqiiired to certify questions to be answered. Klein v. East River
Elec. Light Co. (1905), 182 N. Y. 27.

Specific question nugatory. — The Court of Appeals cannot
answer a question certified to it by the Appellate Division upon
the allowance of an appeal from a final judgment in an action
commenced in an inferior local court, in the absence of a pro-
vision for the certification of questions upon such an allowance of
appeal. Swan v. Inderlied (1907), 187 X. Y. 372.

Code, section 191, subdivision 2.

Jurisdiction. — This amendment did not add to the questions
which the Court of Appeals may review, and is controlled by the
provision of the Constitution which prohibits that court from
reviewing the question of the sufficiency of the evidence to sus-
tain a verdict not directed by the court, unanimously affirmed by
the Appellate Division. Reed v. ilcCord (1899 ), 160 N. Y. 330.

The permission to appeal, under subdivision 2 of section 191,

Rule 1] The Eetuen. 59

in no way enlarges the jurisdiction of the Court of Appeals with
respect to the questions that may be reviewed by it upon a hear-
ing of the appeal. Commercial Bank v. Sherwood (1900), 164
1n\ Y. 310.

A decision or memorandum of decision of the Appellate Divi-
sion is not a judgment; and the amendment to section 191 of the
Code of Civil Procedure (L. 1896, ch. 559), restricting appeals
from a judgment of affirmance in actions to recover damages for
personal injuries where the decision is unanimous, applies to a
judgment entered subsequent to. its passage although the decision
was prior thereto. JSTiendorff v. Manhattan R. Co. (1896), 150
:N^ Y. 276.

The burden of showing that a judgment of affirmance in an
action for a personal injury was by a unanimous decision of the
Appellate Division rests upon the party asserting it, in order to
deprive the Court of Appeals of power to review, under section
191 of the Code of Civil Procedure; and recourse cannot be had
to the opinion, but the fact should be established either by the
judgment or by a certificate of the court appearing in the record.
Kaplan v. N. Y. Biscuit Co. (1896), 151 IS. Y. 171.

A judgment entered upon an order of the Appellate Division
overruling exceptions directed to be heard by it in the first in-
stance, denying the motion for a new trial based thereon, and
ordering judgment upon the verdict, is a judgment of affirmance,
within the meaning of the provision of section 191 of the Code of
Civil Procedure which prohibits appeals as of right to the Coiirt
of Appeals from a judgment of affirmance in an action for a per-
sonal injury when the decision of the Appellate Division is unani-
mous. Huda V. American Grlucose Co. (1897), 151 ~N. Y. 549.

The prohibition of appeals as of right to the Court of Appeals,
from judgments of affirmance in actions for personal injuries,
when the decision of the Appellate Division is imanimous, is ex-
pressly authorized by the Constitution (Corveno v. Atlantic Ave.
E. E.. Co. [1896], 15'0 !N". Y. 225 ) ; and was a competent exercise
of the legislative power. Sciolina v. Erie Preserving Co.
(1896), 151 N. Y. 50.

Scope of provision. — It seems that subdivision 2 of section 191
applies to the unanimous affirmance by the Appellate Division of
any final judgment in an action enumerated therein, such as a

6'0 Court of Appeals Peactige. [Rule 1

judgment entered upon the dismissal of the complaint by the trial
court (Rahm v. JT. Y. C. & H. E. R E. Co. [1909], 194 N. Y.
572) ; or a final judgment on demurrer following a unanimous
affirmance by the Appellate Division of an interlocutory judg-
ment. MclSTamara v. G-oldan (1909), 194 IST. Y. 315.

When leave to appeal not required. — Where the final judgment
of Special Term on a demurrer, in an action specified in subdi-
vision 2 of section 191 of the Code was entered solely in compli-
ance with the reversal by the Appellate Division of an interloc-
utory judgment, such final judgment is in effect that of the Appel-
late Division and not of the Special Term; and an unanimous
affirmance thereof by the Appellate Division, being not an affirm-
ance but a reversal of the action of the trial court, is appealable
to the Court of Appeals without leave. MclSTamara v. Goldan
(1909), 194 K Y. 315.

Allowance of appeal. — The authority reserved by the amend-
ment of 189'6 (chap. 559) to section 191 of the Code of Civil Pro-
cedure, for the allowance of an appeal to the Court of Appeals
by the Appellate Division, by certificate, or, on its refusal, by a
judge of the Court of Appeals, was intended primarily to provide
for exceptional cases where public interests or the interest of juris-
prudence might be endangered by permitting a decision to go un-
challenged; and the mere existence of errors prejudicial to the
particular parties does not of itself warrant the allowance of an
appeal. Sfeiolina v. Erie Preserving Co. (1896), 151 !N". Y. 50.

For an appeal under subdivision 2 of section 191 of the Code,
a certificate of the Appellate Division stating generally that in its
opinion a question of law is involved which ought to be reviewed
by the Court of Appeals is sufficient without specifying questions
for review, since such appeal by certification (as disting-uished
from that provided by subdivision 2 of section 190), is general,
and does not call for the formulation or certification of specific
questions of law for review (Young v. Fox [1898]. 155 Is. Y.
615 ; Kurz v. Doerr [1904], 180 N. Y. 88; Fisher Co. v. Woods
[1907], 187 N. Y. 90); and under such general certificate all
questions of law raised by exceptions and presented by the record
may be reviewed except the legal question as to the sufficiency of
the evidence to sustain a finding of fact or a verdict not directed
by the trial court. Commercial Bank v. Sherwood (1900), 16'2
K Y. 310.

Rule 1] The Retuen. 61

Upon a motion to the Appellate Division for leave to appeal
to the Court of Appeals, pursuant to section 191 of the Code of
Civil Procedure, the question of law which the moving party de-
sires to have reviewed must be definitely and concisely stated in
the notice of motion; and in case the questions are not so stated
the motion will be denied. Harroun v. Brush Elec. Light Co.
(18'&7), 14 App. Div. 19.

In Delaney v. Valentine (1896), 11 App. Div. 523, it was
considered that a case which has been decided in the Appellate
Division in deference to a previous decision of the General Term
in the same case, made before the enactment of the amendment to
section 191 of the Code of Civil' Procedure restricting appeals as
of right to the Court of Appeals in actions for a personal injury
or to set aside a transfer as in fraiid of creditors, does not oome
within the ordinary rules governing applications for leave to ap-
peal to the Court of Appeals, and that, in such a case, the applica-
tion for leave to appeal to that court should be granted.

The Appellate Division, on an application for leave to appeal
to the Court of Appeals under subdivision 2 of section 1'91 of the
Code, cannot determine whether the case is appealable without a
certificate that a question of law is involved which ought to be
reviewed, that question being for the Court of Appeals. Springs
V. James (1910), 1-37 App. Div. 669.

An application for leave to appeal to the Court of Appeals
under section 191, subdivision 2, should be denied, where the
record presents no question involving any principle that concerns
any one except the immediate parties to the action. The provi-
sions of the statute authorizing the allowance of appeals to this
court in cases where appeals are not given as matter of right,
were intended to provide for exceptional cases where public inter-
ests or the interests of jurisprudence might be endangered by per-
mitting a decision to go unchallenged. The mere existence of
errors prejudicial to the particular parties to the controversy does
not of itself warrant the allowance of an appeal. MS. mem-
orandum in Meeker v. Remington & Son Co., cited 68 App. Div.
651, in case of Carlock v. ¥. Y. C. & H. R. R. P. Co.

An application, under subdivision 2 of section 191, to a judge
of the Court of Appeals for the allowance of an appeal may be
made ex parte; and the allowance, when regularly granted, is not
reviewable by the court (Harmon v. Siegel-Cooper Co. [1900],

62 Court of Appeals Practice. [Eule 1

164 ]Sr. Y. 566) ; but when the appeal has been irregularly allowed,
the allowance may be reviewed by the court. Carlisle v. Barnes
(1905), 183 N. Y. 272.

Where an application for leave to appeal to the Court of Ap-
peals has been denied, by a judge of that court, an allowance of
the appeal by another judge on a subsequent application must be
set aside, since the statute (Code Civ. Pro., § 191) does not con-
template or authorize a repetition of such an application after its
denial by one judge of the court to the other judges in succession
until the list of judges has been exhausted. Carlisle v. Barnes
(1905), 183 N. Y. 272. ■

The Court of Appeals cannot, after a unanimous af&rmance by
the Appellate Division, review the sufficiency of the evidence to
sustain a verdict, in an action for personal injuries, notwith-
standing the allowance of an appeal, but can consider onlj^ such
questions of law as are raised by proper exceptions. Kleiner v.
Third Ave. R. R. Co. (1900), 162 K Y. 193.

Personal injury. — In an action for negligence, exceptions to a
charge and refusal to charge as to the duty defendant, a telephone
company, owes a lineman to inspect a pole used but not owned
by it, without any request for the direction of a verdict or for a
nonsuit, entitle the defendant, on appeal by permission, to have
the question thereby raised passed upon by the Court of Appeals,
although it is one necessarily determined by a denial of the mo-
tion to dismiss the complaint and a judgment entered upon a
verdict in favor of the plaintiff has been unanimously affirmed
by the Appellate Division. McGuire v. Bell Telephone Co.
(1901), 167 N. Y. 208.

The claim that the decision of the Appellate Division upon the
question of the plaintiff's contributory negligence is in direct con-
flict with the controlling decisions on the siibject, furnishes no
ground for the allowance, by a judge of the Court of Appeals, of
an appeal from a unanimous affirmance of the judgment of the
trial court, as such affirmance prevents the Coiirt of Appeals from
reviewing the motion to dismiss the complaint at the close of the
case. M'S. memorandum in Vandecar v. Universal Trust Co.
(1903).

ISTor does an exception to the admission of a deposition of the
deceased stating the facts and circumstances of the injury which

Rule 1] The Eeturn. 63

resulted in his death, where the question is merely one of practice
that concerns only the parties to the action and involves simply
the construction and legal effect of a stipulation in reference to
the deposition, made by the respective attorneys who had control
of the case at the time. MS. memorandum in Ludeman v. Third
Ave. R. E.. Co. (1903).

Libel. — An action of libel is within this provision, since " per-
sonal injury " includes libel. ]\IcXamara v. Goldan (1909), 194
K Y. 315.

Compensation for services. — The restriction of the right of
appeal to the Court of Appeals from a unanimous affirmance by
the Appellate Division " in an action to recover wages, salary or
compensation for services " extends to an action to recover com-
pensation for professional services of an attorney. Boyd v. Gor-
man (1898), 157 N. Y. 365.

Code, section 191, subdivision 3.

Questions of law. — Exceptions to rulings upon the admission
and rejection of evidence, in an action tried by a jury, which
appear from a mere inspection of the record to be without merit
and frivolous, present no question of law that can be reviewed by
the Court of Appeals. Szuchy v. Hillside C. & I. Co. (1896),
150 X. Y. 219.

Unless an error upon a trial is so substantial as to raise a pre-
sumption of prejudice, it does not require a new trial and should
be disregarded. Post v. Brooklyn Heights E. E. Co. (1909),
195 X. Y. 62.

Although a question of law is presented, it will not ordinarily
be entertained by the Court of Appeals where, by the lapse of
time or other reason, it has become merely abstract and academic,
unless of great public importance, as, for instance, where liable
to affect future general elections. Matter of Social Democratic
Party (1905), 182 N. Y. 442.

It is imnecessary to label either the facts or the law, because
they classify themselves according to their nature and cannot be
changed if classified wrongly, by court or counsel. If a fact is
characterized as a conclusion of law, that does not make it one,
for it is a fact still regardless of the name given it. See Jefferson
Co. Nat. Bank v. Dewey (1905), 181 N. Y. 115.

A finding of fact does not lose its character by being mis-

64r C'ouET OF Appeals Peactice. [Rule 1

placed or misnamed. A so-called conclusion of law may be
treated as a finding of fact for the purpose of upholding a judg-
ment, and it may be so treated for the purpose of reversal.
Whalen v. Stuart (190&), 194 IST. Y. 495.

Erroneous designation of finding. — The Appellate Division
cannot create an error of law by certifying that there is one. Peo-
ple V. Huson (igO'Y), 187 N. Y. 9'7; and a finding, when it
is a statement of conclusions of law, can be reviewed upon an ex-
ception, although denominated a conclusion of fact. Smyth v.
Brooklyn Union El. R. R. Co. (1908), 193 IST. Y. 335.

Question of law dependent upon determination of question of
fact. — The question as to whether a contract is void under the
Sitatute of Frauds is ordinarily a question of law reviewable by
the Court of Appeals under an exception taken to a refusal to
nonsuit it upon that ground ; but in a case where that question ia
dependent upon the determination of a question of fact, viz., as
to whether there was a consideration sufiicient to sustain the con-
tract, and that has been settled by a verdict and by a unanimous
aflirmance by the Appellate Division, exceptions to the refusal
to nonsuit upon that ground raise no question which the Court of
Appeals has power to review. Lamkin v. Palmer (1900), 164
K Y. 201.

Upon appeal from an order and judgment of the Appellate
Division, reversing a judgment in favor of the plaintiff and dis-
missing the complaint upon the merits, in an action tried by the
court or a referee, where the decision did not state separately the
facts found and the order of the Appellate Division is silent as
to its grounds, the review by the Court of Appeals is confined to
the consideration of whether, upon the decision made by the trial
court upon the facts, the legal conclusion followed that the plain-
tiff was entitled to the relief awarded him, and, if there was no
error in that respect, whether there were errors of law committed
in the rulings upon the trial, which would, in any event have jus-
tified a reversal of the judgment and rendered a new trial neces-
sary. Bomeisler v. Forstei" (1897), 154 K Y. 229.

On appeal from an order of the Appellate Division reversing
a referee's judgment dismissing the complaint, where the order
does not show that the reversal was upon the facts, the review by
the Court of Appeals is confined to the consideration of whether,

Rule 1] The RETniusr. 65

upon the decision made by the referee upon the facts, the legal
conclusion followed that the defendant was entitled to a dismissal
of the complaint. Petrie v. Hamilton College (1899), 158 IST.
Y. 458.

On appeal from an order of reversal of the Appellate Division,
stating that the reversal was on a question of fact, a question
of law arises whether a question of fact was presented upon
the evidence for determination, and the Court of Appeals
gains jurisdiction to review the case to that extent; but if that
review results in ascertaining that there was a question of fact, the
right to review ceases and the appeal must be dismissed. Health
Dept. V. Dassori (1899) 159 N. Y. 245.

Discretion. — A judgment granting a divorce to plaintiff, but
awarding the custody of the children to defendant, is within the
discretion of the Supreme Court, and where that court does not
exceed its powers an affirmance thereof by the Appellate Division
is not reviewable by the Court of Appeals. Osterhoudt v. Oster-
houdt (1901), 168 K Y. 358.

The question of the award and amount of costs in an action in
equity for the construction of a will, being in the discretion of the
Supreme Court, is not subject to review by the Court of Appeals
so long as the allowances do not exceed the limitations provided
by statute. Allen v. Stevens (1899), 161 IST. Y. 123.

Where an order appealed from states that the determination of
the Appellate Division was based upon a want of power to grant
the application, without considering the question of discretion, a
question of law is presented which it is the duty of the Court of
Appeals to review, even if the courts below might have denied the
application in the exercise of discretion. Matter of Thurber
(1900), 162 K Y. 244.

Where the order of the Special Term refusing a writ of man-
damus does not state the ground of refusal, and the facts would
have justified a refusal as matter of discretion, the refusal is not
reviewable in the Court of Appeals, even though the order of the
Appellate Division affirming the order of refusal expressly bases
its determination not upon discretion but upon the questions of
law involved. Matter of Hart (1899), 159 JST. Y. 278.

An appeal from an order of the Appellate Division will not be
dismissed on the ground that so far as the record discloses it may

66 Court of Appeals Peactice. [Eule 1

have been made in tte exercise of discretion, where the court
allows the appeal and certifies a question o£ law for review, since
it will be presumed under such circumstances that the determina-
tion was made upon the merits, unless it expressly appears by the
record that it was made in the exercise of discretion. Matter of
Davies (1901), 168 K Y. 89.

Where the denial of a motion for a new trial upon the ground
of the misconduct of a juror is, upon the facts as disclosed, dis-
cretionary with the trial court, the Court of Appeals, as a general
rule, will not interfere, even in a capital case. People v. Koepping
(1904), 17'8 K Y. 247.

In Matter of Estate of Baldwin (1899), 158 N. Y. 713, a
surrogate's order vacating a stay on probate, denying an applica-
tion for issuance of letters testamentary and relief from a stipula-
tion of renunciation by an executor, and granting letters of ad-
ministration with the will annexed, was held to be discretionary
and, therefore, not reviewable in the Court of Appeals.

The Court of Appeals may not review the discretionary action
of other courts — such, for instance, as that involved in setting
off judgments, DeCamp v. Thompson (1898), 159 N. Y. 444;
or that exercised under a writ of certiorari. People ex rel. Toms
V. Bd. of Supervisors (1910), 199 N. Y. 150.

Discretion — - Certiorari. — The Court of Appeals cannot review
an order which simply dismisses a common law writ of certiorari,
such an order being the result of an exercise of discretion by the
court below. People ex rel. May v. Maynard (1899), 160
]Sr. Y. 453.

Discretion — Extra allowance of costs. — ^An appeal from an
order granting an extra allowance of costs presents no question for
review when there was sufficient evidence before the trial court to
justify the exercise of its discretionary power to grant such an
allowance. Woodbridge v. First Nat. Bank (1901), 166 X. Y.
238.

Under the rule that the Court of Appeals has no power to re-
view discretionary orders, the exercise by the trial court of power
possessed by it to grant an additional allowance is not subject to
review in the Court of Appeals; but the question as to whether
the trial court had the power or authority to grant any additional
allowance is a question of law subject to review in the Court of

Rule 1] The Eeturn. 67

Appeals. Standard Trust Co. v. W. Y. C & H. E,. E. E. Co.
(1904), 178 N. Y. 407.

It is only where there is no power in the trial court to grant
an extra allowance that the Court of Appeals will review an
order granting the same ; and when that power exists the amount
of the allowance rests in the discretion of the court below, subject
only to the limitations of the statutes relating thereto. Mac-
Donnell v. Buffalo L., T. & S. D. Co. (190'8), 193 N. Y. 92.

But where there is no dispute about the facts, the question
whether a case is so difficult and extraordinary as to justify an
extra allowance is a question of law reviewable by the Court of
Appeals upon an appeal from the judgment. Campbell v. Emslie
(1907), 188 K Y. 509.

Adding Party. — The Court of Appeals cannot review an order
of the Supreme Court, such as an order bringing in an additional
party, made in the exercise of its sound discretion, even though
brought up by a certified question. Gittleman v. Feltman (1908),
191 K Y. 205.

Discretion — Remarks of counsel. — Exceptions to the remarks
of counsel in summing up are addressed to the discretion of the
trial court and the Appellate Division, and raise no question of
law for review by the Court of Appeals. The Appellate Division,
in such case, could have reversed on the facts. Reehil v. Fraas
(1909), 197 K Y. 64.

Injunction. — While a temporary injunction involves discre-
tion, a permanent injunction does not when the facts conclusively
show that it would be inequitable and unjust as matter of law;
and in such case the Court of Appeals will review and reverse its
allowance. McClure v. Leaycraft (1905), 183 jST. Y. 36.

An order of Special Term, within its discretion and affirmed by
the Appellate Division, granting, instead of an alternative, a per-
petual injunction in the first instance, restraining the construction
of an electric railway upon a street, the fee of which is in the
abutting landowner, and leaving the company to its proceeding to
condemn, presents no question of law reviewable by the Court of
Appeals. Peck v. Schenectady Ey. Co. (1902), 170 N. Y. 298.

Discretion — Mandamus. — Where the court below has the
power to grant a mandamus as a matter of discretion, its action in
allowing the writ is not reviewable by the Court of Appeals.

08 CouET OF Appeals Peactice. [Rule 1

People ex rel. Rodgers v. Coler (1901), 166 N. Y. 1; People
ex rel. Treat v. Coler (1901), 166 N. Y. 144.

The Court of Appeals is not at liberty to review an order re-
fusing a writ of peremptory mandamus where, even if a case was
made out in which a peremptory writ might have been issued, the
court below had a discretionary power upon the facts to refuse it.
People ex rel. Steinson v. Board of Education (1899) 158
N. Y. 125.

An order of the Appellate Division affirming an order of
Special Term denying a motion for a peremptory writ of man-
damus which fails to show that the writ was refused upon a ques-
tion of law only, and, therefore, must be assumed to have been
denied as a matter of discretion, is not reviewable by the Court
of Appeals. People ex rel. Lentilhon v. Coler (1901), 168
N. Y. 6.

Where the facts are sufficient to justify the court below in re-
fusing a common-law mandamus as matter of discretion the Court
of Appeals vnll not review its action unless it affirmatively ap-
pears in the order denying the writ that it did not refuse the
application in the exercise of discretion. People ex rel. If. Y.
& H. R. R. Co. V. Board of Taxes (1901), 166 K Y. 154.

An 'application for a peremptory writ of mandamus is addressed
to the sound discretion of the Supreme Court, and where it ap-
pears that the facts are such as to justify that court in refusing
the writ as a matter of discretion, the Court of Appeals vnll not
interfere unless it affirmatively appears in the order denying the
writ that the court did not refuse the writ in the exercise of its
discretion. People ex rel. Lehmaier v. Interurban Street Ry. Co.
(1904), 177 ISr. Y. 296, citing Matter of Hart, 159 X. Y. 284;
People ex rel. Durant L. I. Co. v. Jeroloman, 139 N. Y. 14;
People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495.

Criminal conteinpt. — ■ To render a review by the Court of Ap-
peals effective, an order of the Appellate Division reversing an
order adjudging one guilty of criminal contempt should show on
its face that the reversal was solely on the law. People ex rel.
Drake v. Andrews (1909), 196 N. Y. 538.

Discretionary decisions not reviewable. — Decisions resting in
discretion, and free from abuse of its exercise, raise no question
of law and are not reviewable by the Court of Appeals, the rule

Eule 1] The Eettjen. 69

being that the decisions of one court resting in discretion, are not
reviewable in another unless such review is especially authorized
by law. White v. Benjamin (1896), 150 N. Y. 258.

An order of the Appellate Division simply dismissing a
common-law writ of certiorari, without affirming the proceedings
or in any way passing upon tbe questions sought to be reviewed,
being a discretionary order, is not reviewable by the Court- of
Appeals. People ex rel. Goler v. Lord (1898), 157 N. Y. 408.

Where an order of the Appellate Division refusing a writ of
mandamus does not state tbe ground of decision and the writ may
have been refused as a matter of discretion, the order must stand.
People ex rel. Jacobus v. Van Wyck (1899), 157 N. Y. 4-95.

An order affirming an order denying a motion for a new trial
on the ground of newly discovered evidence, is an order resting in
discretion and not reviewable by the Court of Appeals. White y.
Benjamin (1896), 150 K Y. 258; Gaines v. Fidelity & Casualty
Co. (1907), 188 iST. Y. 415.

Costs in equity. — An abuse of the exercise of discretion appli-
cable to the granting of costs in an equitable action can be cor-
rected by the Court of Appeals on review of the judgment in the
action. Eoberts v. X. Y. Elevated E. E. Co. (1898), 155
N. Y. 31.

Withdrawal of juror. — Leave to withdraw a juror rests in the
discretion of the trial court, and an exception to its denial pre-
sents no error reviewable by the Court of Appeals. Cattano v.
Met. Street Ey. Co. (1903), 173 X. Y. 565.

Bill of particulars. — While the granting or denial of a motion
for a bill of particulars ordinarily rests within the sound discre-
tion of the Supreme Court, which discretion is not reviewable by
the Court of Appeals, yet there is a limit to such discretion, and
where an order requires a plaintiff to furnish the particulars of
evidence, which it is not within his power to furnish, or pre-
cludes him from giving lawful and proper evidence upon the trial
because he has failed to specify in advance what such evidence
will disclose, a question of law is presented which is reviewable in
the Court of Appeals. People v. McClellan (190S), 191 N. Y.
341.

Abstract or academic question. — An enactment by the Legisla-
ture, prohibiting in express terms the corporation counsel of the

7'0 Court of Appeals Peactice. [Rule 1

city of New York from making an offer of judgment against the
city does not render the question of the power of a corporation
counsel to confess judgment academic as to cases arising prior to
its passage or as to cases arising in other cities of the State.
Bush V. O'Brien (1900), 164 X. Y. 205.

It is the general practice of the Court of Appeals to refuse to
decide abstract questions; Matter of Norton (1899), 158 K Y.
130; and relief from a judgment for costs merely is not adequate
ground upon which to reverse a judgment, if the questions arising
upon the merits have become obsolete by lapse of time. Williams
V. Montgomery (1896), 148 N. Y. 519; Matter of Croker v.
Sturgis (1903), 175 N. Y. 158.

Waiver of exception raising question of law. — An exception to
the denial of a motion for the dismissal of the complaint at the
close of the plaintiff's case is not available in the Court of Appeals
to present the question of law that there is no evidence to support
the verdict, where the defendant, after the denial of the motion,
proceeded with his case and went to the jury without having re-
newed the motion to dismiss at the close of the whole evidence, as
such action worked a waiver of the exception. Hopkins v. Clark
(1899), 158 K Y. 299.

Assessment of franchise tax. — An order of the Appellate Di-
vision reversing a determination of the State Comptroller in the
assessment of a franchise tax, not as to the amount of property
held by a corporation within the State, but as to the character of
a part of it, presents a question of law reviewable by the Court of
Appeals. People ex rel. Commercial Cable Co. v. Morgan (1904),
178 ISr. Y. 433.

Discretionary reversal in criminal case. — An order of reversal
in ^a criminal case, such as an order of reversal upon the ground
that justice requires a new trial, which does not upon its face
exclude the possibility that it was based iipon an examination of
the facts or made as a matter of discretion, presents no question
of law reviewable by the Court of Appeals. People v. Calabur
(1904), 178 K Y. 463.

Reversal on law and facts. — Upon an appeal from an order of
the Appellate Division reversing a surrogate's decree, upon the
law and the facts, where the inferences from the uncontradicted
evidence all ]ioint in one direction so that a reasonable mind can

Bule 1] The Rettjrn. 71

reach but one conclusion, there is no question of fact and the
Court of Appels has jurisdiction of the appeal. Matter of Totten
(1904), 179 N. Y. 112.

Short form decision. — On review of a decision in the short
form, although unanimously affirmed, the Court of Appeals can-
not presume that any fact was found not embraced within the
pleadings, the findings 'as they appear in the record and the proofs
upon which the decision was made ; and a general exception to
the conclusion of law that the plaintiff was entitled to judgment
raises the question of law of the plaintiff's right to maintain the
action. Falk v. American West Indies Trading Co. (1905), 180
2T. Y. 445.

Non^revieivahle qvestion of law. — An error of law, claimed to
be raised by the declaration of a question of fact by the Appellate
Division in an order of reversal where there is no question of
fact in the case, in an action tried by a jury, is not reviewable by
the Court of Appeals any more than a unanimous determination
by the Appellate Division that there is evidence to support a
verdict when, in the judgment of tbe Court of Appeals, there is
no such evidence. Allen v. Corn Exchange Bank (1905), 181
K Y. 278.

Question of law on denial of noiisuit. — Where a judgment on
a verdict for the plaintiff, rendered upon issues submitted to the
jury after the denial of a motion for a nonsuit, is affirmed by the
Appellate Division, but not unanimously, the question of law is
open in the Court of Appeals whether there was any evidence
sufficient to justify the submission, and whether the motion for a
nonsuit should not have been granted. Grady v. City of New
York (1906), 182 N. Y. 18.

Questions of law not raised on the trial by proper exceptions
cannot be reviewed by the Court of Appeals, although the decision
of the Appellate Division was not unanimous. Wangner v.
Grimm (1902), 169 K Y. 421.

Questions of law under surrogate's decree. — Exceptions to a
surrogate's conclusions of law, in dismissing a proceeding in Sur-
rogate's Court, present questions of law which are reviewable by
the Court of Appeals upon an appeal from an order of the Appel-
late Division, affirming the decree of the Surrogate's Court en-

72 Court op Appeals Practice. [Eule 1

tered upon and in accordance with such conclusions of law. Hat-
ter of Killan (1902), 1Y2 IST. Y. 547.

The Court of Appeals has no power to review the determina-
tion of the Appellate Division in reversing a decree of a surrogate
upon the facts. Matter of Thorne (1900), 162 ]sr. Y. 238.

Mandamus. — ^An order of the Appellate Division reversing an
order directing a peremptory writ of mandamus upon a verdict
rendered upon the issues raised by the return to an alternative
writ, and granting a new trial, is not reviewable by the Court of
Appeals when it does not appear from the records that the re-
versal was not based upon the ground that the verdict was against
the weight of evidence ; the proper remedy is a new trial of the
issues joined upon the alternative writ. People ex rel. McDonald
V. Clausen (1900), 163 N. Y. 523.

Question of law raised. — When the defendant has requested to
go to the jury upon the facts and the request has been denied,
although the record discloses no exception to the denial, an ex-
ception noted to the subsequent direction of a verdict for the
plaintiff suffices to raise on appeal the question of law whether the
material facts in the case should not have been submitted to the
jury. Kumberger v. Congress Spring Co. (1899), 158 X. Y. 339.

Question of law not presented by record. — Upon an appeal
from a judgment of the Appellate Division, entered upon a unani-
mous decision that there is evidence supporting or tending to sus-
tain the findings of fact of a referee, the Court of Appeals cannot
review a question of law arising upon conceded facts not appear-
ing in the findings of the referee. Hilton v. Ernst (1900), 161
N. Y. 226.

The rule that the Court of Appeals cannot review questions of
fact does not apply where an affirmance by the Appellate Division
is not unanimous and there is a question whether there is any evi-
dence in the case to support a finding of fact, as such conditions
raise a question of law which the Court of Appeals may decide ;
Ostrom V. Greene (1900), 161 JST. Y. 353; Beck v. Catholic Uni-
versity (1902), 172 ~N. Y. 392; but where there is such evidence
the question is no longer one of law, and the decision of the courts
below upon the facts is final even though it may be erroneous.
Hawkins v. Mapes-Reeve Construction Co. (1904), 178 K Y.
236.

Rule 1] The Return. 73

Question of law raised hy exception to direction of verdict. —
An exception to the direction of a verdict is sufficient to present
the question upon appeal, without requesting that any fact be sub-
mitted, in the absence of implied consent that the case be decided
by the court. Second K"at. Bk. v. Weston (1900), 161 JST. Y. 520.

Review of tionsuit. — A judgment dismissing a complaint, on
the ground that plaintiff had failed to make out a cause of action,
entered without a decision of the trial court upon the facts estab-
lished at the trial, is a judgment upon a nonsuit, and may be re-
viewed in the Court of Appeals. Ware v. Dos Passos (1900),
162 K Y. 281.

An order of the Appellate Division reversing a judgment of
the Special Term and granting a new trial, upon the ground
that there was no evidence to sustain a finding of the trial court
as to anyone of the facts material and necessary to sustain the
judgment below, presents a question of law which must be re-
viewed by the Court of Appeals. Shotwell v. Dixon (190O), 163
IT. Y. 43.

Refusal to nonsuit presenting no error of law. — ^Where the Ap-
pellate Division has reversed a judgment based upon a verdict
held to be against the weight of evidence and grants a new trial,
and on a subsequent trial the evidence is substantially the same
as on the former trial, the refusal of the trial court to nonsuit
presents no error reviewable by the Court of Appeals, where the
evidence is sufficient to support a verdict either way. Fealey v.
Bull (1900), 163 K Y. 397.

An exception to the finding of fact unanimously affirmed by
the Appellate Division presents no question reviewable by the
Court of Appeals, and where the facts as found justify the con-
clusions of law and no other exceptions appear which present any
questions of law, the judgment must be affirmed. Krekeler v.
Aulbach (1902), 169 N. Y. 372.

Failure to find other facts. — Where a judgment is sustained
by findings of fact and conclusions of law which are supported by
evidence the failure of the trial court to find other facts, claimed
to have been established by evidence, is not an error of law re-
viewable by the Court of Appeals. ISTew York Cent. &c., E,. E.
Co. V. Auburn, &c., K E. Co. 1904), 178 N. Y. 75.

Failure to raise question below. — The objection that an action

74 CouET OF Appeals Practice. [Rule 1

of ejectment cannot be maintained for nonpayment of rent where
the lease reserved to the landlord no right of re-entry in case of
default and contained no provision that in such contingency the
lease should determine, cannot be considered by the Court of Ap-
peals where no motion was made at the trial to dismiss the com-
plaint upon the ground that it did not state facts sufficient to con-
stitute a cause of action. Jones v. Eeilly (1903), 174 IST. T. 97.

Reversal upon law. — Where, on appeal from an order of re-
versal upon the law only, it is found that the evidence supports the
verdict, there is nothing open to review by the Court of Appeals
other than exceptions relating to the evidence and the charge ; and
unless one or more of these exceptions is sufficient to justify the
reversal by the Appellate Division, it is the duty of the Court of
Appeals to reverse the reversal and affirm the judgment of the
trial court. Devoe v. Iv^. y. C. & H. E. K E. Co. (1903), 174
]ST. y. 1.

An appeal to the Court of Appeals from an order of the Ap-
pellate Division which involves a question of fact must be dis-
missed. Matter of Board of Education (1903), 173 IST. T. 321.

The Court of Appeals has no power to set aside a verdict as
against the weight of evidence. Merchants' ISTat. Bank v. Barnes
(1902), 172 N. Y. 618.

As to what is and what is not a question of law, see People
ex rel. ISTorth v. Featherstonhaugh (1902), 172 N". Y. 112.

Review of reversal on facts. — ^Where the findings are in accord-
ance with the conceded facts or the uncontroverted testimony, the
Appellate Division is not authorized to reverse upon the facts;
and, if it does, a question of law is presented which the Court of
Appeals may properlv review. Benedict v. Arnoux (1898), 154
^\ Y. 715.

The denial of a motion for a nonsuit based upon the insuffi-
ciency of the evidence, does not present a question of law which
will authorize the Court of Appeals to review a case in which the
Appellate Division has unanimously decided that there was evi-
dence supporting the verdict. Szuchy v. Hillside C. & I. Co.
(1896), 150 N. Y. 219.

An appeal from an order of reversal of the Appellate Division,
made by a divided vote, granting a new trial on exceptions filed,
and stating that it is upon questions of fact, or questions of fact

I?rale 1] The Return. 75

and law, raises a question of law as to whether there was any evi-
dence to support the view of the Appellate Division, and if there
is no material question of fact appearing in the record, the Court
of Appeals has power to review; but if it appears that there was
any material and controverted question of fact, and hence,
that the Appellate Division had power to reverse upon the facts,
its decision is final, and the Court of Appeals must, by force of
the restriction of its jurisdiction to the review of questions of law
affirm the order or dismiss the appeal therefrom. Otten v. Man-
hattan E. Co. (1896), 150 N. Y. 395.

Upon appeal from an order of reversal of the Appellate Divi-
sion stating that the reversal was upon questions of fact, or of both
law and fact, the Court of Appeals is not concluded by such
statement, but has power to determine whether a question of fact
is involved in the case, and if there is none it has jurisdiction to
review the law. Hirshfeld v. Fitzgerald (1898), 157 X. Y. 166 ;
Griggs V. Day (1899), 158 K Y. 1 ; Hirsch v. Jones (1908), 191
¥. Y. 195.

As to when Court of Appeals may examine the facts to discover
questions of law, see, also, Penryhn Slate Co. v. Granville El. L.
& P. Co. (1905), 181 K". Y. 80; also, Eeich v. Dyer (1905),
180 K Y. 107.

Order involving disputed fact. — The Court of Appeals has
no power to review an order denying a motion to resettle and
amend an order dismissing a writ of certiorari to review an as-
sessment, so as to have it appear that the hearing took place upon
a stipulation as to a fact, where the making of the stipulation was
denied by opposing affidavits. People ex rel. Ford v. Gillette
(1899), 159 N. Y. 125.

(See, also, under sections 1337 and 1338 of the Code under
Eule VIII.)

Code, section 191, subdivision 4.

Unanimous decision of Appellate Division. — The provision
that " No unanimous decision of the Appellate Division
of the Supreme Court that there is evidence supporting
or tending to sustain * * * a verdict not directed by
the court, shall be reviewed by the Court of Appeals," is
final and conclusive; and the Court of Appeals is without juris-
diction to review such a decision, even if the trial court erred in

76 CouET OF Appeals Peactice. [Rule 1

holding that the evidence was sufficient to require the submission
of the case to the jury, and the Appellate Division was wrong in
deciding that the evidence sustained the verdict. Szuchy v. Hill-
side C. & I. Co. (1896), 150 N. Y. 219.

It seems that the provision that " No unanimous decision of
the Appellate Division of the Supreme Court, that there is evi-
dence supporting or tending to sustain a finding of fact, * * *
shall be reviewed by the Court of Appeals," applies to special
proceedings as well as to actions, and to implied findings as well
as to those written out in extenso. People ex rel. Manhattan Ky.
Co. V. Barker (1897), 152. IST. Y. 417.

The effect of an unanimous judgment or order of affirmance by
the Appellate Division is a decision that there is evidence sup-
porting the findings of .fact as expressed or necessarily implied.
It is not necessary for that court to specify what findings of fact
are sustained by evidence, when it intends to sustain them all, or to
repeat the language of the Constitution and apply it generally to
all the findings of fact. People ex rel. Manhattan Ey. Co. v.
Barker (1897), 152 K Y. 417; Keyes v. Smith (1906), 18S
N" Y. 376.

The restriction imposed by the Constitution upon a review of
a unanimous decision of the Appellate Division, that there is
evidence supporting a finding of fact, applies to an order of
affirmance in a statutory proceeding to review an assessment in
which a trial de novo has been had at Special Term, upon new
evidence, as to the value of the relator's property, resulting in a
confirmation of the assessment and a dismissal of the writ of
certiorari. People ex rel. Manhattan Ey. Co. v. Barker (18i97),
152 ISr. Y. 417.

When the Appellate Division has unanimously affirmed an
order dismissing, upon the merits, a writ of certiorari to review
an assessment, the Court of Appeals has no .jurisdiction to re-
view the facts which are alleged to show the existence of the
grounds of the writ. People ex rel. Bdwa3^ Imp. Co. v. Barker
(1898), 155 ISr. Y. 322.

Judgment solely on incompetent evidence. — Where it appears,
upon an appeal to the Court of Appeals from a judgment entered
upon a decision of the Appellate Division unanimously affirming
a judgment entered upon a decision of the Court at Special Term,
that there is no evidence, except that held incompetent by the

Rule 1] The Return. 7Y

Court of Appeals, to justify the findings of fact made by the trial
court, such evidence must be presumed to have controlled the re-
sult and its admission requires a reversal of the judgment. Hind-
ley V. Manhattan Ey. Co. (1906), 185 N. Y. SaS.

Construction of instrument. — The provision that no unani-
mous decision of the Appellate Division that there is evidence sup-
porting a finding of fact shall be reviewed by the Court of Ap-
peals, has no application where no question of fact was in contro-
versy and the only question involved was the legal construction
of the instrument of transfer and the statute. Matter of Green
(ISOY), 153 :N. Y. 223. See, also, Kennedy v. Mineola H. & F.
Traction Co. (1904), 178 E". Y. 508.

Unanimous decision — unanimity not assumed. — If it does not
appear from the order or judgment that an afiirmance by the Ap-
pellate Division was unanimous, the Court of Appeals will assume
that it was not, and will determine whether the evidence was
sufficient to warrant the submission of the case to the jury where
the defendant has moved for a dismissal of the complaint. Perez
V. Sandrowitz (1905), 180 N. Y. 397.

Effect of unanimous decision by Appellate Division. See Con-
solidated Ice Co- V. The Mayor (1901), 166 K Y. 92; Wood-
bridge V. First ITat. Bank (1901), 166 N. Y. 238; Johnston v.
Dahlgren (1901), 166 K Y. 354; Bluu v. Mayer (1907), 189
K Y. 153.

Where a determination made by the -State Board of Railroad
Commissioners, involving a question of fact, has been affirmed
unanimously by the Appellate Division on certiorari, the Court of
Appeals has no power to review, when no question is raised that
is not necessarily determined by the decision of the question of
fact. People ex rel. Loughran v. Railroad Com'rs (1899), 158
W. Y. 421.

When it appears from the record that the affirmance by the
Appellate Division of a judgment entered on a verdict not directed
by the court was unanimous, the Court of Appeals is compelled to
presume that there was sufficient evidence to sustain the facts
found by the jury. Ayres v. Del., Lack & West. E. R. Co.
(1899), 158 ISr. Y. 254.

A unanimous affirmance by the Appellate Division of a Special
Term judgment limits the Court of Appeals to an examination

78 C'ouET OF Appeals Practice. [Rule 1

of the correctness of the legal conclusions upon the facts found by
the trial court. Kissam v. United States Printing Co. (1910),
199 ]Sr. Y. 76.

Burden of proving unanimity of decision. — The burden of
proving that the decision of the Appellate Division that there is
evidence supporting or tending to sustain a finding of fact or a
verdict not directed by the court was unanimous, in order to de-
prive the Court of Appeals of power to review questions of law
as to the suiSciency of the evidence, on appeal from a final judg-
ment of affirmance, rests upon the party asserting it, and the fact
should appear in the record. Laidlaw v. Sage (189i9), 158 INT.
T. 73.

Finding of fact. — Since the adoption of the present Constitu-
tion, the question whether a finding of fact is sustained by evi-
dence, though one of law, is not reviewable by the Court of
Appeals, when the Appellate Division has affirmed the judgment
by an unanimous decision, harden v. Dorthy (189|9), 160
JSL Y. 39.

When findings of fact have been affirmed by the Appellate
Division in an unanimous decision, the Court of Appeals must
accept them as they are in their fair scope and meaning, without
adding to or taking anything from them, and, applying them to
the case, the only question that can arise is whether they support
the legal conclusions drawn from them by the courts below. Mar-
den V. Dorthy (1899), 160 K Y. 39'.

The provision, that no unanimous decision of the Appellate
Division that there is evidence supporting or tending to sustain
findings of fact shall be reviewed by the Court of Appeals, applies
not only to the facts affirmatively stated in favor of the successful
party, but to those expressly or impliedly negatived against the
party appealing. Marden v. Dorthy (1899-), 160 JST. Y. 39.

Finding involving stipulated facts. — The principle that a find-
ing, although unanimously affirmed by the Appellate Division, is
not conclusive upon the Court of Appeals when it involves issuable
or traversable facts stipulated by the parties, cannot apply when
the stipulated facts are evidentiary merely. Continental Ins. Co.
V. N. Y. & Harlem E. E. Co. (1907), 187 N". Y. 225.

Jurisdiction. — The purpose and effect of the present Consti-
tution is to prohibit the Court of Appeals from in any ease re-

Eule 1] The Return. 79

viewing the question whetlier there is any, or sufficient, evidence
to sustain a decision or undirected verdict, where there was an
unanimous affirmance by the AiDpellate Division. Reed \. Mc-
Cord (1899), 160 JST. Y. 330.

The provision of the Constitution prohibiting the review of a
unanimous decision of the Appellate Division that there is evi-
dence supporting or tending to sustain a verdict not directed by
the court has the eifect of withdrawing from the jurisdiction of
the Court of Appeals, in case of such unanimous decision, the
question of law whether there is any evidence tending to prove a
fact. Meserole v. Hoyt (1899), 161 IST. Y. 59.

The question of law, whether there is any evidence supporting
or tending to sustain a finding or verdict on a question of fact,
is not reviewable in the Court of Appeals, when the judgment has
been affirmed unanimously by the Appellate Division, whatever
may be the form of the exception. Cronin v. Lord (1899), 161
N. Y. 90.

Unanimous affirmance by the Appellate Division of the award
by the trial court of fee and rental damages, in an action against
an elevated railroad company, precludes the Court of Appeals
from questioning the amounts allowed. Kernochan v. Manhattan
Ry. Co. (1900), 161 N. Y. 339.

Where the Appellate Division has unanimously affirmed a judg-
ment on an undirected verdict, and subsequently allows an appeal
upon a question of law, the Court of Appeals has no power to
examine or determine whether there is any or sufficient evidence
to sustain the verdict. Lewis v. Long Island R. R. 'Co. (1909),
162 N. Y. 52.

Findings of fact which have been unanimously affirmed by the
Appellate Division cannot be questioned in the Court of Appeals
as against evidence or without evidence. Lawrence v. Congrega-
tional Church (1900), 164 'N. Y. 115.

This restriction applies to a unanimous order of affirmance in
a statutory proceeding to review an assessment in which a trial
de novo has been had at Special Term, upon new evidence, as to
the value of the relator's property, resulting in an affirmance of
the assessment and a dismissal of the writ of certiorari. The
effect of such an order is a determination that the finding of fact
as expressed or necessarily implied in the decision of the Special

80 OouET OF Appeals Peactice. [Rule 1

Term is supported by evidence, and, therefore, is not tlie subject
of review in the Court of Appeals. People ex rel. Sands v.
Teitner (1903), 17'3 N. Y. 647.

A judgment founded wholly upon immaterial evidence, every
part of which was duly objected to and the objection fortified by
an exception, is not protected by an unanimous affirmance, so as
to preclude the Court of Appeals from considering the questions
raised by the exceptions. Woods Motor-Vehicle Co. v. Brady
(1905), 181 K Y. 145.

Review of denial of nonsuit. — The Court of Appeals is pre-
cluded from examining the correctness of the denial of a motion
for a nonsuit, made at the close of the evidence, by an unanimous
affirmance of the Appellate Division, which imports that there was
evidence sufficient to sustain the verdict. Jones v. Eeilly (1903),
174 K Y. 97.

Short form decision. — The rule, that where a judgment en-
tered upon a short decision (Code, § 1022, before amendment of
1903), has been unanimously affirmed by the Appellate Division,
the Court of Appeals is bound to assmne that the trial court found
all the facts warranted by the evidence and necessary to support
the judgment (Amherst College v. Pitch [1897], 151 N. Y. 282;
People ex rel. Manhattan Ry. Co. v. Barker [1897], 152 K Y.
417), has no application where the judgment is unwarranted by
any aspect of the finding contained in the decision. Miller v.
K Y. & K S. Ry. Co. (1905), 183 K Y. 123.

Refusal to find. — The Court of Appeals will not review a re-
fusal by the trial court to find a fact, requested to be found under
section 1023 of the Code, where such fact is directly in conflict
with a fact actually found by the trial court as the basis of its
decision, or would necessarily nullify such finding, and where the
finding as made has the support of an unanimous affirmance by
the Appellate Division. Le Gendre v. Scottish Ins. Co. (1906),
183 N. Y. 392.

Where the affirmance of a judgment by the Appellate Division
is not unanimous, exceptions to refusals of the trial court to make
certain findings of fact as requested by the appellant may be con-
sidered by the Court of Appeals ; and where the proposed findings
are sustained by uncontradicted evidence, and the facts em-
bodied therein are sufficient to relieve the appellant from lia-

Eule 1] The Ebttoen. 81

bility, the judgment should be reversed and a new trial granted.
Arnot V. Union Salt Co. (1906), 186 N. Y. 501.

Pleadings. — Under this inhibition it is the evidence and the
proceedings on the trial that the Court of Appeals will not ex-
■ amine to ascertain whether there are facts not found which rest
on undisputed evidence or facts found which are unsupported by
any evidence. But the pleadings being part of the judgment-roll
land there being no constitutional prohibition of an examination
■thereof to ascertain what facts are admitted nor any statutory re-
quirement that the findings shall include such facts they may
and should be read by the court, in connection with a decision
upon the issues, to ascertain whether the facts admitted and found
sustain the judgment. Jacobson v. Brooklyn Lumber Co. (1906),
184 ]Sr. Y. 152.

Effect of unanimous affirmance as to finding of fraud. — The
unanimous affirmance by the Appellate Division, of that part of
a judgment which sets aside certain confessions of judgment and
transfers as fraudulent, is conclusive upon the Court of Appeals
that a finding, that the creditors so preferred participated in the
debtor's fraud is sustained by the evidence. Metcalf v. Moses
(1900), 161 K Y. 587.

Unanimous decision of city court. — This provision applies only
to a unanimous decision of the Appellate Division of the Supreme
Court, and has no application to a unanimous decision of the
General Term of the City Court of New York; and hence a
unanimous affirmance by such General Term does not limit the
review by the Court of Appeals. Klein v. East Eiver Elec. Light
Co. (190'5), 18i2 K Y. 27.

Effect of unanimous affirmance of general decision. — A general
decision on the merits in favor of the plaintiff, is equivalent to a
general verdict, and where the judgment entered thereon is unani-
mously affirmed by the Appellate Division, the Court of Appeals
is precluded from examining the evidence as to its sufficiency,
either to sustain the material facts alleged by the plaintiff, or to
negative those alleged by the defendant in defense or by way of
counterclaim. Consolidated Elec. Storage Co. v. Atlantic Trust
Co. (1900), 161 W. Y. 605.

Exception surviving unanimous affirmance. — An exception to
the denial of a motion to dismiss the complaint, made on the

83 Court of Appeals Peactice. [Rule 1

pleadings and hence involving no consideration of the sufficiency
of the evidence, survives an unanimous affirmance by the Appel-
late Division of a judgment for the plaintiff. Sanders v. Saxton
(1905), 182 W. Y. 477.

Unavailing exception. — ^An exception to a finding of fact
unanimously afiirmed by the Appellate Division presents no ques-
tion reviewable by the Court of Appeals, and where the facts as
found justify the conclusions of law, and no other exceptions ap-
pear which present any questions of law, the judgment must be
affirmed (Krekeler v. Aulbach [1902], 169 K Y. 372) ; and even
if the error in the decision of the case upon which the appellant
relies is predicated upon undisputed evidence, which is not con-
tained within a finding of fact, it cannot be considered by the
Court of Appeals. McManus v. McManus (1904), 179
N. Y. 338.

Sufficiency of evidence. — Where there has been an unanimous
decision by the Appellate Division, iipon a question of fact, the
sufficiency of the evidence to sustain the judgment does not pre-
sent a question of law reviewable by the Court of Appeals.
Kennedy v. Mineola H. & F. Traction Co. (1901), 178 W. Y.
508, citing Szuchy v. Hillside C. & I. Co., 150 X. Y. 219 ; Am-
herst College V. Ritch, 151 JST. Y. 282; People ex rel. Manhattan
R. Co. V. Barker, 152 N. Y. 417 ; People ex rel. Broadway Im-
provement Co. V. Barker, 155 K Y. 322 ; Harden v. Dorthy, 160
ISr. Y. 39 ; Reed v. MoCord, 160 N. Y. 330 ; Lewis v. Long Island
R. R. Co., 162 N. Y. 52; Meserole v. Hojt, 161 K Y. 59;
Cronin v. Lord, 161 K". Y. 90 ; Hilton v. Ernst, 161 X. Y. 226 ;
Hutton V. Smith, 175 N". Y. 375.

Order of dismissal. — An appeal cannot be taken to the Court
of Appeals from an " order " of the Appellate Division dismissing
an appeal from a judgment below, but a judgment of dismissal
must be entered and an appeal taken from such judgment.
Stevens v. Central Xat. Bank (1900), 162 K Y. 253. See, .also.
Village of Champlain v. McCrea, 165 IS". Y. 264.

Verdict against evidence. — In no case tried before a jury in
which a motion for a new trial has been made, on the ground
that the verdict is against the evidence, can the Court of Appeals
entertain an appeal from an order of re^'crsal, unless it affirma-
tively appears that the Appellate Division had affirmed the facts.

Eule 1] The RETuuisr. 83

Allen V. Corn Exchange Bank, 181 I\T. y. 278. See, also. Matter
of Jones, 181 N. y. 389.

Jurisdiction in criminal appeals.

The Code of Criminal Procedure provides as follows :
Appeal in criminal case.

§ 517. When the juagment is of death the appeal must be taken direct
to the Court of Appeals, and, upon the appeal, any actual decision of the
court in an intermediate order or proceeding forming a part of the judgment-
roll, as prescribed by section 485, may be reviewed.

Appeal in other cases.

§ 519. An appeal may be taken from a judgment or order of the Appellate
Division of the Supreme Court to the Court of Appeals in the following cases
and no other: 1. From a, judgment affirming or reversing a judgment of
conviction; 2. From a judgment affirming or reversing a, judgment for the
defendant on a demurrer to the indictment, or from an order afurmiiig,
vacating or reversing an order of the court arresting judgment; 3. From
a final determination affecting a substantial right of the defendant.

Stay upon appeal; reversal; judgment of death.

§ 528. An appeal to the Court of Appeals, from a judgment of the
Appellate Division of the Supreme Court, affirming a judgment of con-
viction, staj'S the execution of the judgment appealed from, upon filing,
with the notice of appeal, a certificate of a judge of the Court of Ap-
peals, or of a justice of the Appellate Division of the Supreme Court, that,
in his opinion, there is reasonable doubt whether the judgment should
stand, but not otherwise. When the judgment is of death, an appeal to
the Court of Appeals stays the execution, of course, until the determina-
tion of the appeal. When the judgment is of death, the Court of Appeals
may order a new trial, if it he satisfied that the verdict was against the
weight of evidence or against law, or that justice requires a new trial,
whether any exception shall have been taken or not in the court below.

Technical errors disregarded.

§ 542. After hearing the appeal, the court must give judgment, without
regard to technical errors or defects, or to exceptions which do not affect
the substantial rights of the parties.

Appeal from courts of special sessions, etc.

§ 771. The judgment of the Appellate Division of the Supreme Court
upon the appeal [from minor courts] is final: except that where the original
appeal was from a, judgment of commitment of a child, either party may
appeal to the Court of Appeals in like manner as a defendant under section
519 of this Code.

84 CouET OF Appeals Peactice. [Rule 1

Appeal from New York Special Sessions.

If any judgment or determination made by the said Court of Special
Sessions [in the city of New York] on or after the said [first day of
July, 1895] shall he adverse to the defendant, he may appeal therefrom
to the Supreme Court in the same manner as from a judgment in an
action prosecuted by indictment and may be admitted to bail upon an
appeal in like manner, and if the judgment of the Supreme Court upon
such an appeal shall be adverse to the defendant, he may appeal there-
from to the Court of Appeals, as prescribed in section 519 of the Code
of Criminal Procedure. In case of any such appeal to the Supreme Court
or to the Court of Appeals, the procedure in, and the jurisdiction of,
the said courts respectively, shall be the same as upon an appeal thereto
from a judgment of conviction after indictment — [Laws of 1895, chap. 601,
§ 20.]

Right of appeal. — There is no right of appeal in criminal
actions except as conferred by statute. People v. Johnston
(1907), 187 N". T. 319.

Review of settlement of case. — The action of the trial justice
in settling the case on an appeal from a judgment of death is
reviewable by the Court of Appeals on an appeal by the defendant
from an order of Special Term denying a motion for a resettle-
ment, although there is no express statutory provision authorizing
such review, since the power to hear and determine an appeal in
the first instance in a capital case, conferred upon the Court of
Appeals by section 517 of the Code of Criminal Procedure, neces-
sarily implies the right to settle the preliminary practice so far
as it is not fixed by statute. People v. Priori (1900), 163
E". Y. 99.

Review of order denying neiv trial on ne.wly-discovered evi-
dence.— An order denying a motion for a new trial upon the
ground of newly-discovered evidence, made after a judgment of
death and an appeal therefrom by the defendant and in time to
include the proceedings in the case is, at his instance, reviewable
by the Court of Appeals as an incident to the appeal, under sec-
tion 517 of the Code of Criminal Procedure. Id.

Review of order of reversal. — The Court of Appeals has no
power to review a judgment of reversal in a criminal case unless
it appears affirmatively in the body of the order that the court
below has exercised its power and discretion to review the facts,
and that, being satisfied with the judgment in that respect, the
reversal was ordered for error of law only ; and an order of re-

Eule 1] The Return. 85

versal that does not, upon its face, exclude the possibility that it
was based upon an examination of the facts or made as matter
of discretion presents no reviewable question of law. People v.
O'Brien (1900), 164 K Y. 57.

Jurisdiction. — The limitations of the Code of Civil Procedure
upon the jurisdiction of the Court of Appeals have no applica-
tion to criminal appeals, which are authorized by section 519 of
the Code of Criminal Procedure, enacted since the present Con-
stitution went into effect. By force of this section an appeal lies
to the Court of Appeals as matter of right from a judgment
affirming or reversing a judgment for the defendant on a demurrer
to the indictment, notwithstanding the order is interlocutory.
People v. Drayton (1901), 168 N. Y. 10.

As a general rule, the Court of Appeals has no jurisdiction to
hear an appeal from a judgment rendered by the Appellate Di-
vision in a criminal action which originated in a Court of Special
Sessions. People v. Johnston (1907), 187 IST. Y. 319.

Exception essential. — The fact that the Appellate Division
certifies that a judgment convicting the defendant of the crime of
assault in the first degree, under an indictment for manslaughter
in the first degree, was reversed " upon questions of law only,"
for the reason indicated in its opinion that the facts did not con-
stitute the crime for which a conviction was had, does not enable
the Court of Appeals to pass upon the question, in the absence of
any exception taken upon the trial raising it. No court can
create an error of law by certifying that there is one, and a ques-
tion of law in a criminal case can be raised only by an exception ;
the Appellate Division itself had no power to pass upon the ques-
tion and its order must be reversed and the judgment of convic-
tion affirmed. People v. Huson (1907), 187 IST. Y. 97.

In a criminal case, except where the judgment is of death, the
Court of Appeals is limited to the review of questions of law, and
can take notice only of legal errors appearing in the record or
raised by exceptions on the trial. Section 527 of the Code of
Criminal Procedure applies only to the Appellate Division and
section 526 only to appeals from judgments of death. People v.
Grossman (1901), 168 N. Y. 47; People v. Sherlock (1901), 166
N. Y. 180; People v. Shattuck (1909), 194 N. Y. 424.

The power conferred by section 528 may be properly exercised
when it is apparent that the defendant has suffered gross injustice

86 CouET OF Appeals Practice. [Rule 2

by the admissiou of incompetent evidence upon the main and
vital issue, even though his counsel failed to object to its recep-
tion; but the provision of the Code was not intended to relieve
counsel of the duty of objecting, and, in case their objection is
overruled, of taking an exception, to the admission of incompe-
tent evidence. The power is one to be exercised or withheld in
the court's discretion, and where it is satisfied that the accused
has had a fair trial and that he is guilty of the crime charged,
a new trial will not be granted. P'eople v. Kennedy (1900), 164
]Sr. Y. 449.

See further under Eule VIII.

Loss of exhibits. — Where during the preparation of the record
on appeal from a conviction of murder in the first degree it is
discovered that the original handwriting exhibits are lost and a
search for the missing papers is without result, the Court of
Appeals, in the exercise of the discretionary power to disregard
errors or defects which do not affect the substantial rights of the
defendant, conferred upon it by sections 528 and 542 of the Code
of Criminal Procedure, will uphold the judgment and deny a
new trial where the evidence without the writings in question is
sufficient to support the verdict, and translations of such writings,
none of which are attacked for incorrectness, are printed in the
record, and are either established by defendant's admissions, duly
proven, or are corroborated by circumstances of irresistible
cogency. People v. StroUo (1908), 191 W. Y. 42.

Appeal for clemency. — The fact that circumstances in a capital
case, while not controlling the legal character of the crime, tend
to diminish the defendant's moral fault, cannot be considered by
the Court of Appeals ; and an appeal for clemency by reason
thereof, must be addressed, not to the court, but to the Governor
of the State. People v. Broncado (1907), 188 K Y. 150.

EULE II.
Further Return may be Ordered.

If the return made by the [Clerk of the] court below shall
be defective, either party may, on an affidavit, specifying
the defect, and on notice to the opposite party, apply to
one of the judges of this court for an order, that the clerk
make a further return without delay.

Kule 2] FuETHER Eeturn May be Okdeeed. 87

Amending return.

The Code of Civil Procedure provides as foUov^s:
§ 725. A court to which a return is made by a, sheriff or other officer,
or by a subordinate court or other tribunal, may, in its discretion, direct
the return to be amended, in matter of form, either before or after
judgment.

§ 1303. Where the appellant, seasonably and in good faith, serves the
notice of appeal, either upon the clerk or upon the adverse party, or
his attorney, but omits, through mistake, inadvertence, or excusable neglect,
to serve it upon the other, or to do any other act, necessary to perfect the
appeal, or to stay the execution of the judgment or order appealed from; the
court in or to which the appeal is taken, upon proof, by affidavit, of the
facts, may, in its discretion, permit the omission to be supplied, or an amend-
ment to be made, upon such terms as justice requires.

Defective return.

Omitted 'papers. — The court may, without dismissing the ap-
peal, allow the appellant to supply requisite papers omitted from
the return. Beecher v. Conradt (Ct. App. 1885), 11 How. Pr.
181. But where the defect has originated from the misconduct
of the appellant, the court may dismiss the appeal, instead of
allowing an amendment. McGregor v. Comstock (1859), 19
K Y. 581.

Exhibits. — An appellant is not bound to print matter proposed
by the respondent as an amendment to the case, but disallowed
by the trial judge. Hence, where the trial judge refused to
direct certain exhibits to be printed entire, but required appellant
to paste them in the appeal-book, if copies were furnished, or, in
lieu thereof, directed that either party might refer to the originals
on the argument, it was held that this direction held good until
the final determination of the action, and that appellant should
not be compelled to print such exhibits as part of the return to
the Court of Appeals ; but such a practice is not to be encouraged.
Kilmer v. N". Y. C. & H. R. E. E. Co. (1884), 94 X. Y. 495.

The Court of Appeals has no jurisdiction to compel an appel-
lant to attach to the return copies of documents which were not
part of the record in the court below. If, for any reason, they
ought to be made part of the record, a motion for that purpose
should be made in the court below. States v. Cromwell (1887),
104 ^. Y. 664.

Papers improperly inserted. — When a return contains papers
which were not before the general term, a motion to correct the

88 CouET OF Appeals Practice. [Rule 2

return and to require the appellant to print a ease containing
the return as so amended, is proper. Hobart v. Hobart (1881),
85 IST. Y. 637.

(As to defective return, see also under Eule I.)

Amending the record.

Must be by court below. — The Court of Appeals has no power
to amend a record transmitted to it for review, and any amend-
ment must be sought in the court below (Kenyon v. IST. Y. C. &
H. E. R. R Co. [1879], 76 IST. Y. 607); even although the
stenographer of the trial court submits an affidavit stating that
his notes of the trial were incorrectly printed. People v. Hoch
(1896), 150 N. Y. 29a, 566.

In Hoffman v. Manhattan Ey. Co. (1896), 149 :N". Y. .599, the
Court of Appeals denied, for want of power, a motion to amend
a notice of appeal from a final judgment by inserting a statement
of intention to review an interlocutory judgment, where the time
for appealing had expired. See Lavelle v. Skelley, 90 X. Y.
546; Fejdowski v. D. & H. C. Co. (1901), 168 X. Y. 500.

Where the Court of Appeals can see that the failure of the
return to show the court in which judgment was rendered, or to
show such a judgment as is set forth in the notice of appeal, is
probably a clerical error and that in fact a right of appeal exists,
it may allow the return to be withdrawn with a view to the cor-
rection of the record in the court below. Lahens v. Pielden (Ct.
App. 1862), 15 Abb. Prac. 177.

Resettlement of case. — The review in the Court of Appeals
miist be upon the same case as that upon which the cause was
decided below, and therefore there cannot be a general resettle-
ment of the case for the purpose of appeal to the Court of Appeals,
although it seems that a specific error, such as the omission of a
word, or an exception to a decision or to some separate proposi-
tion in the charge, may be corrected and the omission supplied.
Catlin V. Cole (Supr. Ct. 1860), 19 How. Prac. 82 ; 10 Abb. Prac.
387 and note.

The settlement of the case is matter of practice over which the
court below has entire control and on which the Court of Appeals
will make no order. That court may, however, decline to dismiss
the appeal, where it seems to have merits, and give leave to the

Rule 2] FuRTHEE Eetuen May bei Oej>eeed. 89

appellant to apply to the court below for a resettlement of the
case, and to so amend the record as to bring up a case on which
the Court of Appeals can examine the merits. Westcott v.
Thompson (1858), 16 IST. Y. 613. And when, through the inad-
vertence of counsel, the facts are so presented that it is impos-
sible, without violating well-settled rules of practice, to do justice
between the parties, the Court of Appeals has power to suspend
judgment in order to enable the party, whose rights might other-
wise siiffer, to apply to the court below for a resettlement of the
case (Rice v. Isham [1863], 1 Keyes, 4:4 ) ; and the return, after
amendment by resettlement, will be allowed to retain its original
date of filing. Livingston v. Miller (Ct. App. 1852), 7 How.
Prac. 219.

But after argument and judgment, the Court of Appeals will
not set aside the judgment and stay proceedings for an applica-
tion to the court below to alter the statement of exceptions taken
at the trial. Fitch v. Livingston (Ct. App. 1853), 1 How. Pr.
410.

While the Court of Appeals cannot and will not dictate to the
trial court how a case should be settled, it was held that it might
reverse an order of general term affirming an order of special
term refusing a resettlement, and grant motion for resettlement,
in order that the trial judge might have an opportunity to resettle
the case in accordance with the facts, so that the Appellate Court
could decide the case upon a record which was absolutely correct.
N. T. Rubber Co. v. Rothery (1889), 112 W. Y. 592.

Amendment to shoiu reversal on facts. — It has been held that
judgment would not be suspended after argument, for the purpose
of applying to the general term for an order showing that its
reversal was upon the facts as well as the law; a motion for that
purpose should be made before argument or submission. Hamlin
V. Sears (1880), 82 N". Y. 327. It has been held, however, that
the general term had power, after appeal to the Court of Appeals,
to make its record declare the truth as to its judgment, and so
might amend an order of reversal by inserting a statement that
its decision was made upon questions of fact (Guernsey v. Miller
[1880], 80 E". Y. 181) ; and that the order as amended might
be attached to the return (ISTat. City Bank v. N. Y. Gold Ex.
Bank [1884], 97 K Y. 645; Rass v. Gleason [1888], 111 N. Y.

9'0 Court of Appeals Practice. [Rule 2

683) ; but the return could not be so amended until the general
term had amended its original order. Shultz v. Hoagland (Ct.
App. 1880), 11 WMy. Dig. 294.

Power of Appellate Division to amend General Term order of
reversal. — ■ The Appellate Division of the Supreme Court has
jurisdiction to so amend, in accordance with the facts, an order
of reversal made by the late general term of that court as to
render the decision of the general term reviewable by the Court
of Appeals. Judson v. Central Vermont R. K. Co. (189'9), 158
N. Y. 597. And see Eyder v. Brooklyn El. E. R Co. (1899),
158 N. Y. 707.

The Appellate Division has power, even after sending down
its remittitur of an order of reversal and while an appeal there-
from is pending in the Court of Appeals, to amend the order by
inserting that the reversal was on a question of fact, and the
exercise of that power is not reviewable by the Court of Appeals.
Health Dept. v. Dassori (1899), 159 IST. Y. 245.

The pendency of an appeal in the Court of Appeals is no bar
to a motion in the Appellate Division for the amendment of its
order of reversal so as to show that the reversal was upon the
facts as well as upon the law, and, therefore, an application to
the Court of Appeals for an order directing the transmission of
the return on appeal to the Supreme Court, so that such motion
may be made, is unnecessary and should be denied. Birnbaum v.
May (1902), 170 K Y. 314.

Power of court below as to amendments.

The court below has power to correct any mistake in the record
and to conform it to the facts. Baker v. Home Life Ins. Co.
(1875), 63 ISr. Y. 630.

The court below, while an appeal is pending in the Court of
Appeals, has still control over the judgment in regard to making
amendments, and the judgment is regarded as remaining there
for all purposes of amendment. Judson v. Gray (Ct. App. 1859),
17 How Pr. 289.

Remitting return for amendment. — A motion to remit the re-
turn for the purpose of permitting the court below to amend the
record, if it should desire to do so, is unnecessary and should be
denied, since that court may make such amendment as it sees
fit, and order it to be filed with the original return in the Court

Hule 2] Further Return May be Ordered. 91

of Appeals, and on such filing it is regarded as a part of the orig-
inal return. Peterson v. Swan (1890), 119 'N. Y. 662; Birn-
baum V. May (1902), 170 K Y. 314, and cases there cited.

The court below has power to correct errors in a record, after
appeal to the Court of Appeals, and return it as corrected, with-
out first applying to the Court of Appeals to remit it for correc-
tion. Eew V. Barker (1823), 2 Cow. 408; Luysten v. Sniffen
(1847), 1 Barb. 428, 3 How. Prac. 250 ; Witbeck v. Waine (Supr.
Ct. 1853), 8 How. Prac. 433. But it was held in Adams v. Bush
(Supr. Ct. 1865), 2 Abb. Prac. (N. S.) 118, that after appeal
taken to the Court of Appeals and case made and returned to the
clerk of that court, the court below would not entertain a motion
to correct the case, unless it had been sent back to it for that
purpose.

Statement of events of trial. — It has been held that a case on
appeal from a decision at circuit should be a transcript of the
proceedings upon the trial, and that the General Term had no
power to direct such an alteration of the record as would cause
it to state untruly the events of the trial. Carter v. Beckwith
(1880), 82 ]Sr. Y. 83.

Change in composition of court. — It has been held that a Gen-
eral Term might amend the record of its decision, so as to con-
form to the decision actually made, although there had been in
the meantime a change in the justices composing the General
Term. Buckingham v. Dickinson (1874), 54 ]S^ Y. 682. And,
so also, with the Appellate Division. MacArdell v. Olcott
(1907), 189 K Y. 368.

Power of Court of Appeals to make amendments, under § 723 of
Code.

Section 722 of the Code of Civil Procedure provides as follows :

Each of the omissions, imperfections, defects and variances, specified in
the last section, and any other of like nature, not being against the right
and justice of the matter, and not altering the issue between the parties,
or the trial, must, when necessary, be supplied, and the proceeding amended,
hy the court wherein the judgment is rendered, or by an appellate court.

Section 723 of the Code of Civil Procedure is as follows :

The court may, upon the trial, or at any other stage of the action,
before or after judgment, in furtherance of justice, and on such terras

92 Court of Appeals PK.iCTiCE. [Rule 2

as it deems just, a-mend any process, pleading or other proceeding, by adding
or striking ooit the name of a. person as a, party, or by correcting a
mistake in the name of a party, or a mistake in any other respect, or by
inserting an allegation material to the case; or, where the amendment does
not change substantially the claim or defence, by conforming the pleading
or other proceedings to the facts proved. And, in every stage of the
action, the court must disregard an error or defect in the pleadings or
other proceedings, which does not affect the substantial rights of the
adverse party. When amending a pleading or permitting the service of an
amended or supplemental pleading in a case which is on the general calendar
of issues of fact, the court may direct that the case retain the place upon
such calendar which it occupied before the amendment or new pleading was
allowed, and that the proceedings had upon the amendment or supplemental
pleadings shall not affect the place of the case upon such calendar, or
render necessary the service of a new notice trf trial.

Under tliis section, an amendment of a pleading may be al-
lowed in the Court of Appeals, to sustain the ju'dgment (Bate v.
Graham [1854], 11 N. Y. 237; Pratt v. Hud. Riv. R. R. Co.
[1860], 21 ISr. y. 305; Haddow v. Lundy [1874], 59 K T.
320; Reeder v. Sayre [1877], 70 IST. Y. 180) ; but not to reverse
it. Volkeningv. De Graaf (1880), 81 jSr. Y. 268. But in Fitch
V. Mayor of N". Y. (1882), 88 N. Y. 500, the court says that if
the section applies to the Court of Appeals, the power should not
be exercised unless it is plain that no substantial right of the ad-
verse party would be affected.

In Bank of Havana v. Magee (1859), 20 K". Y. 355, 360, it is
said that the provision that in every stage of the action the court
must disregard an error or defect in the pleadings or other pro-
ceedings, which does not affect the substantial rights of the ad-
verse party, was addressed to the Court of Appeals equally with
the court of original jurisdiction; and in Cardell v. MciSreill
(1860), 21 ]Sr. Y. 336, 341, that the Court of Appeals does not
reverse judgments upon an objection based upon a variance be-
tween the complaint and the proof which might have been
amended if necessary.

In Reeder v. Sayre (1877), 70 IST. Y. 180 (supra), it is said
that the power to amend the pleadings given by section 723 is
great, and that the real limitation seems to be that the amend-
ment shall not bring in a new cause of action.

In Martin v. Home Bank (1901), 160 N. Y. 190, it is held
that in an action to recover on a bank check court may permit
complaint to be amended to conform to proof.

'Rule 2] FuETHEB Eeturn Mat be Oedeejed. 93

In Smitli V. Mayor of IST. Y. (1868), 37 N. Y. 518, 521, an
action brought to recover fees claimed to be attached to a municipal
office, it was suggested on argument that the complaint might
then be so amended as to change the form of the action to one
for money had and received ; but the court said that it had never
kaown the exercise of such a power by the Court of Appeals, and
it was not aware of any authority for it, and that in no event
could such amendment be granted except on motion upon notice,
on which terms could be imposed.

In Montgomery v. Buffalo Railway Co. (1899), 158 E". Y.
708, the Court of Appeals granted an unopposed motion to amend
the return on appeal from an order of reversal, by inserting in
the notice of appeal the words " as amended by the Appellate Di-
vision," and a stipulation for judgment absolute.

In Ackley v. Tarbox (1864), 31 N. Y. 564, the Court of Ap-
peals amended the record by striking out the name of an unneces-
sary plaintiff.

Whether an Appellate Court can amend a bill of exceptions
even in matter of form, is doubted in Onondaga County Mut.
Ins. Co. V. Minard (1848), 2 E". Y. 98, and the Court of Appeals
cannot correct an improper insertion of findings in the original
case on appeal. Binghamton Opera House Co. v. City of Bing-
hamton (1898), 156 IST. Y. 651.

Kecords not in return.

Record evidence not in the return may be considered by the
Court of Appeals to sustain a decision under review, but not to
reverse it. Wines v. Mayor of K Y. (1877), 70 N. Y. 613;
Matter of Cooper (1883), 93 K Y. 507; Day v. Town of New
Lots (1887), 107 N. Y. 148; Dunham v. Townshend (1890),
118 ]Sr. Y. 281; Atlantic Ave. R. E. Co. v. Johnson (1892),
134 K Y. 375; People ex rel. Warschauer v. Dalton (1899),
159 N. Y. 235; Stemmler v. Mayor of K Y. (1904), 179 K
Y. 473.

Amending return in criminal cases.

Application to amend return should be made to the court where
the judgment was rendered (Rew v. Barker [1873], 2 Cow. 408) ;
on order of a judge of the Court of Appeals, under Rule II.
People V. McTameney (1883), 30 Hun, 505.

94 Court of Appeals Pea.ctice. [Rule 3

RULE III.

Attorneys and Guardians Below to Continue to Act.

The attorneys and guardians ad litem of the respective
parties in the court below shall be deemed the attorneys
and guardians of the same parties respectively, in this
court, until others shall be retained or appointed, and
notice thereof shall be served on the adverse party.

Authority of attorney.

The authority of an attorney who is employed to prosecute or
defend a suit, in the absence of special circumstances, continues,
by virtue of his original retainer, until it is finally determined;,
and in the absence of proof to the contrary, the presumption is
that it continues until the litigation has ended. Bathgate v.
Raskin (1875), 59 N. Y. 5'33.

Death of client. — The death of the client revokes the authority
of the attorney, and he is not required or authorized to do any-
thing further in the action except upon the retainer of the legal
representative. Adams v. JSTellis (Supr. Ct. 1880), 59 How. Prac.
385; Lapaugh v. Wilson (1887), 43 Hun, 619. The attorney
for the ancestor does not become the attorney for the heir without
a new appointment. Putnam v. Van Buren (Supr. Ct. 1852),
7 How. Prac. 31.

Where, after the death of a party, notice of appeal from an
order is served upon his attorney, the appellant cannot object, on
motion by such attorney to dismiss the appeal, that he has no
standing in court because of the death of his client. Having
called the attorney into court as the proper representative of the
deceased, the appellant may not object to his being heard. Mat-
ter of Beckwith (1882), 90 N. Y. 667.

Unauthorized appearance. — An unauthorized appearance by an
attorney will not bind the party so as to deprive him of his right
to appeal. Bates v. Voorhees (1859), 20 IST. Y. 525.

Appeal by new attorney.

There are decisions to the effect that an appeal is in the nature
of a new action and may be taken and prosecuted by a new at-
torney without an order of substitution. McLaren v. Charrier

Eule 3] Attoeneys and Guaediajs's to Act. 95

(1836), 5 Paige, 530; Pratt v. Allen (Supr. Ct. of Buffalo,
1858), 19 How. Prac. 450, 45i6; Ward v. Sands (Sup. Ct. 1881),
10 Abb. ]Sr. G. 60; Webb v. Milne (IST. Y. Supr. Ct. 1886), 10
Civ. Proc. R. 27. The contrary yiew as to the nature of an appeal
is, however, maintained in Seely v. Prichard (jST. Y. Supr. Ct.
1854), 12 Legal Obs. 245; Fry v. Bennett (N. Y. Supr. Ct.
1858), Y Abb. Prac. 365; Miller v. Shall (1875), 67 Barb. 446;
Theirry v. Crawford (1884), 33 Hun, 366, and Shuler v. Max-
well (1885)-, 38 Hun, 240 — in the last of which cases, in com-
menting upon this rule of the Court of Appeals (then Rule IV),
it is said that the rule declares, in effect, that on appeal to the
Court of Appeals from another court the power of the attorney
continues although judgment below has been entered, and, there-
fore, that another attorney than the attorney of record at the
time of the recovery of judgment cannot serve a notice of appeal
until he has been substituted.

In Pensa v. Pensa (N. Y. Supr. Ct. 1893), 3 Misc. Eep. 417,
it is said, overruling Webb v. Milne (supra), that an appeal from
a judgment is not to be regarded as a new action or proceeding
to enforce the judgment within the meaning of the decisions to
the effect that in such a case a new attorney, duly authorized for
the purpose, may appear without formal substitution, but it is a
proceeding in the action for the correction of errors alleged to
have been committed and to effect, if possible, the reversal of the
judgment for error, and that the clear weight of authority is that
the appeal cannot be taken by an attorney who has not been sub-
stituted in place of the attorney who appeared in the action.

See Magnolia M. Co. v. Sterlingworth Co. (1899), 37 App.
Div. 366, where it was held that under this rule a party who con-
templates an appeal to the Court of Appeals may, without obtain-
ing an order of substitution from that court, retain a new attorney
and upon such retainer the authority of the former attorney
ceases.

Substitution of attorneys; order.

To make a substitution of attorneys effective, an order should
be entered and notice thereof served on the opposite attorney.
Robinson V. McClellan (Supr. Ct. 1845), 1 How. Prac. 90; Dorlon
V. Lewis (Supr. Ct. 1852), 7 How. Prac. 132; Bogardus v. Richt-
meyer (Supr. Ct. 1856), 3 Abb. Prac. 179; Parke v. City of Wil-

96 OouET OF Appeals Peactice. [Rule 3

liamsburgh (Supr. Ct. 1&56), 13 How. Prac. 250; Miller v. Shall
(1875), 67 Biarb. 446; Krekeler v. Thaule (N. Y. Com. Pr.
1875), 49 How. Prac. 138.

Order should be obtained in Court of Appeals. — After the filing
of the return on appeal, a substitution of attorneys for a party
should be made by an order of the Court of Appeals, not of the
court below. Squire v. McDonald (1893), 138 N. Y. 554.

The fact, however, that an attorney for a respondent, who has
been ,authorized to appear for him, has failed to proceed in a
regular manner to cause his substitution by order of the Court of
Appeals, does not preclude that court from acting on a motion
made by him on behalf of the respondent to dismiss the ap-
peal. Id.

Laches.

In McElwain v. Erie Eailway Co. (1877), 71 ]\". Y. 600,
where an appeal brought in 1864 had been dismissed in 1874
for want of prosecution, under chapter 9 of Laws of 1873, and the
appellant's attorney of record had died in 1866, and no attempt
was made to substitute another attorney until 1877, it was held
that the laches of the appellant presented an insuperable obstacle
to granting a motion to vacate the dismissal of the appeal.

Death, disability or removal of attorney, etc.

The Code of Civil Procedure provides as follows :

Death or disability of attorney; proceedings thereupon.

§ 65. If an attorney dies, is removed or suspended, or otherwise be-
comes disabled to act, at any time before judgment in an action, no
further proceeding shall be taken in the action, against the party for
whom he appeared, until thirty days after notice to appoint another
attorney, has been given to that party, either personally or in such other
manner as the court directs.

Proceedings, if attorney or party not found.

§ 1302. If the attorney for the adverse party is dead; or if he has
been removed, and notice of the removal has been served upon the ap-
pellant's attorney, and another attorney has not been substituted in his
place; or if, for any reason, service of a notice of appeal, upon the
proper attorney for the adverse party, cannot, with due diligence, be made
within the State, the notice of appeal may be served upon the respondent
in the manner prescribed by law for serving it upon an attorney. If
personal service upon the respondent cannot, with due diligence, be so

Eule 3] Attorneys axd Guabdians to Act. 97

made within tlie State, tlie notice of appeal may be served upon liim,
and notice of the subsequent proceedings may be given to him, as directed
by a judge of the court, in or to which the appeal is taken.

Proceedings stayed. — Where, imder section 65, notice to ap-
point another attorney is served upon a party whose attorney has
died, all proceedings are stayed for thirty days, and a motion to
dismiss an appeal for failure to appoint an attorney, made within
that time, is premature. Hickox v. Weaver (1878), 15 Hun, 375.

Removal from the State. — Papers cannot he served upon an
attorney after he has become a resident of another State [except
where residence in another State is permitted to an attorney
practicing in this State hj section 60 of the Code] (Diefendorf
V. House [Supr. Ct. 1854], 9 How Pr. 243), and his name can
no longer be used in conducting the suit, even by his law partner.
Chautauqua County Bk. v. Eisley (Supr. Ct. 1844), 6 Hill, 375.

Notice to "party -personally. — Where the appellant's attorney
has removed from the State and notice has been given to the
party to appoint another attorney, a motion to dismiss the appeal
cannot be made without notice to the appellant personally.
Jewell V. Schouten (1848), 1 N. Y. 241.

Where the attorney for a party has died, and due notice has
been given to such party to appoint a new attorney, which he
neglects to do, notice of any proceeding in the action is properly
given to the party personally. Hoffman v. Rowley (Supr. Ct.
1862), 13 Abb. Prac. 399 ; Chilson v. Howe (Supr. Ct. 1889), 17
Civ. Proc. R. 86.

Application of section 1302 to respondent. — It seems that
where, after an appeal, the attorney for the appellant dies, the
respondent may proceed in the same manner in which it is pro-
vided in section 1302 that the appellant may proceed. Hickox v.
Weaver (1878), 15 Hun, 375.

Substitution of parties on appeal.

The Code of Civil Procedure provides as follows:

When a person entitled to become a party may appeal.

§ 1296. A person aggrieved, who is not a party, but is entitled by law to
be substituted, in place of a party; or who has acquired since the making of
the order, or the rendering of the judgment appealed from, an interest which
would have entitled him to be so substituted, if it had been previously ac-
quired, may also appeal, as prescribed in this chapter, for an appeal by a

98 Court of Appeals Practice. [Eule 3

party. But the appeal cannot be heard, until he has been substituted in
place of the party; and if he unreasonably neglects to procure an order of
substitution, the appeal may be dismissed, upon motion of the respondent.

Appeal when adverse party has died.

§ 1297. Where the adverse party has died, since the making of the order, or
the rendering of the judgment appealed from, or where the judgment appealed
from was rendered, after his death, in a case prescribed by law, an appeal may
be taken, as if he was living; but it cannot be heard', until the heir, devisee,
executor, or administrator, as the case requires, has been substituted as the
respondent. In such a case, an undertaking required to perfect the appeal,
or to stay the execution of the judgment or order appealed from, must recite
the fact of the adverse party's death; and the undertaking enures, after sub-
stitution, to the benefit of the person substituted.

Proceedings, when party dies pending appeal.

* § 1298. Where either party to an appeal dies, before the appeal is heard,
* * * if an order, substituting another person in his place, is not made,
within three months after his death, * * * the court, in which the
appeal is pending may, in its discretion, make an order, requiring all persons
interested in the decedent's estate, to show cause before it, why the judg-
ment or order appealed from should not be reversed or affirmed, or the appeal
dismissed, as the case requires. The order must specify a day, when cause
is to be shown, which must be not less than six months after making the
order; and it must designate the mode of giving notice to the persons inter-
ested. Upon the return day of the order, or at a subsequent day, appointed
by the court, if the proper person has not been substituted, the court, upon
proof, by affidavit, that notice has been given, as required by the order, may
reverse or affirm the judgment or order appealed from, or dismiss the appeal,
or make such further order in the premises, as justice requires.

Order of substitution.

§ 1299. Where the appeal is from one court to another, an application for
an order of substitution, as prescribed by the last three sections, must be
made to the appellate court. Where personal service of notice of application
for an order has been made, within the State, upoa the proper representa-
tive of the decedent, an order of substitution may be made, upon the appli-
cation of the svu'viving party.

Order of substitution. — Before the enactment of section 1299
requiring the application for order of substitution to be made
to the appellate court, it was held that where a party in a cause
died after the return had been filed in the Court of Appeals, that
court, having obtained jurisdiction, had the power to allow his
legal representative to be substituted. Hastings v. McKinley

* See also sections 757 and 758.

Rule 3] Attorneys and Guaeuians to Act. 99

(Ct. App. 1853), 8 How. Prac. 175, citing Eogers v. Patterson
(1834), 4 Paige, 413.

■Section 1299' is broad enough to permit a surviving adverse
party to enforce substitution thereunder, when it has not been
procured at the instance of the personal representative of the
deceased party himself, or of a party associated in interest with
the decedent, if there be one. Eeed v. Farrand (1910), 198
K Y. 207.

An improper order of revival made by the Court of Appeals
eaimot be collaterally attacked, but can be remedied only by an
application to vacate the order. Riley v. Gritterman (Supr. Ct.
1889), 10 N. Y. Supp. 38.

Death between hearing and decision. — To make applicable the
provisions of section 1297 of the Code in regard to appeals from
orders where a party " has died since the making of an order,"'
it is necessary for the party moving under that section to treat
the order appealed from as made before the death; and where
the subject of the order was argued before the death of the party,
but decided thereafter, the court may amend the date of its order
nunc pro tunc so as to make it bear date as of a day prior to the-
death. Carter v. Beckwith (1880), 82 IST. Y. 83; Matter of
Beckwith (1882), 87 IsT. Y. 503; Layton v. Kraft (1909), 195
N. Y. 525; Adams v. Bristol (1909), 196 S". Y. 510. And see
Blake v. Griswold (1887), 104 N. Y. 613.

Instances of granting and of refusing substitution. — ^Substitu-
tion vsdll not be ordered in the Court of Appeals merely on the
ground that the party asking it has obtained a judgment of the
court below, in a cross-action, declaring him entitled to be sub-
stituted as plaintiff and to control the action — while an appeal is
pending from such judgTuent. Glenville Woolen Co. v. Ripley
(Gt. App. 1870), 11 Abb. Prac. (IST. 'S.) 87.

Where a motion was made to substitute the personal repre-
sentative of a surety on a joint promissory note against whom
and his principal a joint judgment had been obtained, as defend-
ant in his stead, he having died after affirmance by the General
Term and during the pendency of appeal to the Court of Appeals,
upon which appeal an undertaking staying execution had been
given, it was held that the motion must be denied; that there
could be no propriety in the substitution, as the judgment could

100 Court of Appeals Peactice. [Rule 3

never be enforced or properly affirmed (since the estate of the
surety was, on his death, discharged from payment of the note) ;
that the appeal could not be continued simply for the purpose of
enabling the plaintiff, in case of afBlrmance, to bring an action
upon the undertaking, as there could be no liability upon the
undertaking after the judgment had been discharged, either by
act of the parties or operation of law. Risley v. Brown (1876),
67 K Y. 160.

In an action for a penalty under the General Manufacturing
Act of 1848, it seems that, until the substitution of plaintiff's
representative on his death, an appeal from judgment may not
be heard. Where, however, an appeal to the Court of Appeals
was heard without knowledge of the death and the judgment was
affirmed, it was held that on granting a motion for substitution
the court could affirm the judgment in favor of the substituted
representative. Blake v. Griswold (1887), 104 K". T. 613.

Il; seems that in case the death of a party in an action for a
penalty under the General Manufacturing Act occurs while an
appeal is pending to the Court of Appeals from an order reversing
the judgment, and the legal representatives of the decedent are
not substituted, the Court of Appeals must take action as pre-
scribed by section 1298 of the Code. Carr v. Eischer (1890),
119 N. Y. 117.

On the death of the appellant in an action to recover chattels
before argument of the appeal, the Court of Appeals may revive
the action in the name of appellant's assignee for the benefit of
creditors. Eiley v. Gitterman (Supr. Ct. 1889), 10 iN". Y.
Supp. 38.

An executor of an assignee for the benefit of creditors is not
entitled to be substituted as plaintiff in an action pending in the
Court of Appeals, brought by the decedent as such assignee
unless the executor has been substituted as assignee. Steinhouser
v. Mason (1892), 135 N. Y. 63r..

Substitution below; objection to. — It is too late to first object
in the Court of Appeals to a substitution of parties made in the
court below and recognized by the objector by his having appealed
the case as against the substituted party. Griffin v. Helmbold
(1878), 72 N. Y. 437.

Rule 4] Appellant to Make a Case — Its Foem. 101

Practice of clerk's office as to substitutions.

After an appeal to the Court of Appeals has been perfected, all
orders of substitution, both of attorneys and of parties, should
be obtained from that court. When an application for substitu-
tion of attorneys is on consent, the consent should be signed by
the original attorney and signed and acknowledged by the party.
When an application for substitution of parties is on consent, the
consent should be signed by all the attorneys in the action and
signed and acknowledged by the party to be substituted. The
order of substitution, when made, can then be attached to the
record, and be properly entered in the register of the cause, which
is opened on the receipt of the return.

If order of substitution is obtained in the court below before
appeal perfected, a copy should be transmitted to the Court of
Appeals with the return.

It sometimes happens that after the appeal has been perfected
and return transmitted, orders of submission are obtained in the
court below and a copy sent to the clerk of the Court of Appeals.
An order so obtained is not considered a part of the record of
the cause, and is not noted in the remittitur, as are orders of
substitution obtained in the Court of Appeals after return filed.

On receipt of consents for substitution, properly signed, orders
are entered accordingly, by the clerk, as of course.

ETJLE IV.
Appellant to Make a Case — Its Form.

In all calendar canses a case shall be made by the ap-
pellant, which shall consist of a copy of the return,, and
the reasons of the court below for its judgTuent, or an
affidavit that the same cannot be procured, together with
an index to the pleadings, exhibits, depositions and other
principal matters. Every opinion in the cause at [the]
special term, as well as at the Appellate Division of the
Supreme Court, relating to the questions involved in the
appeal is included by the foregoing provision.

102 Court of Appeals Peactice. [Rule 4

Case, copy of return.

The " case " in the Court of Appeals being a copy of the return,
with opinions and index added, its form and contents are
determined by those of the return, as to which see under Rules
I and II.

Complete copy required. — If the return is certified by the
clerk of the court below, the printed case is defective if it does
not contain a copy of the certificate contained in the return; a
statement, " return certified as required by law," cannot be ac-
cepted as a substitute. Matter of Bailey (1881), 8,5 'B. Y. 629.

Where, however, nothing was omitted from what purported to
be a copy of the certificate printed in the case but the word
■' copy " and the name of the clerk, the cases were allowed to be
amended, in Farmers' L. & T. Co. v. Carroll (1850), 2 X. Y. Sfje.

A reference to an opinion in the action, as reported in
the Supreme Court Reports, is not a substitute for com-
pliance with the rule requiring the printing in a case of
every opinion of the court below. Bastable v. City of Syracuse
(1878), 72 K Y. 64.

Opinion of court below.

Facts in, not regarded. — Facts stated in the opinion of the
court below or elsewhere, not found in the return, cannot be re-
garded. McGregor v. Buell (1864), 1 Keyes, 153.

Recourse cannot be had to the opinion of the Appellate Di-
vision to establish the fact that an affirmance was by a unanimoiis
decision. Kaplan v. N. Y. Biscuit Co. (1896), 151 K Y. 171.

The general rule. — Opinions of courts form no part of the
record (Rosenstein v. Fox [1896], 150 N. Y. 354); and state-
ments therein as to what the courts below did or did not pass
upon cannot be considered by the Court of Appeals, imless the
judgment appealed from so refers to the opinion as to make it a
part of the record. Koehler v. Hughes (1896), 148 IST. Y. 507.

The Court of Appeals does not look to the opinions below for
the purpose of determining the contents of an order, finding or
judgment, or its meaning. It only examines such opinions for
the purpose of ascertaining the arguments made and the reasons

'Rale 4] Appellant to Make a Case — Its Form. 103

given in support of the rulings and determinations made by the
court whose order or judgment is under review. Morehouse v.
Brooklyn Heights E. E. Co. (1906), 185 N. Y. 520.

The opinion of the court below cannot be looked into by the
Court of Appeals to ascertain the reasons or grounds of the de-
cision appealed from (Snebley v. Conner [1879], 78 N. Y. 218;
Clarke v. Lourie [1880], 82 N. Y. 580; People ex rel. Bdway.
Imp. Co. V. Barker [1898], 155 N. Y. 322); nor to determine
whether a reversal was solely upon questions of law (Harris v.
Burdett [1878], 73 N. Y. 136; People v. B:oas [1883], 92 N. Y.
560; Spence v. Ham [1900], 163 N. Y. 220; Hinckel v. Stevens
[1900], 165 iST. Y. 171) ; nor to alter the discretionary character
of an order dismissing a writ of certiorari (People ex rel. Coler
V. Lord [1898], 157 N. Y. 408) ; nor to discover the ground upon
which a mandamus was refused. People ex rel. Jacobus v. Van
Wyck (1899), 157 K Y. 495.

Where an order and judgment (if affirmance below are silent
as to their grounds, the opinions of the courts below cannot be
considered by the Court of Appeals for the purpose of determining
them. Eandall v. JnT. Y. Elevated E. E. Co. (1896), 149 N". Y.
211.

When a record, on appeal to the Court of Appeals, contains
proposed findings, marked " found," or " refused," respectively,
without any statement of the ground or reason, followed by an
order and judgment of unqualified affirmance by the General
Term containing no reference to any opinion, the state of the
case is not affected by the fact that an opinion of the trial judge
states that he refused certain findings because he deemed them
immaterial, and the opinion of the General Term states that,
owing to a defective certificate to the case, as settled, it was pre-
cluded from reviewing the qiiestions of fact. Koehler v. Hughes
(1896), 148 K Y. 507.

The opinion of the General Term is not conclusive in the Court
of Appeals on the question as to whether the former court refused
to review the facts upon appeal from a judgment entered upon
the report of a referee. Verplanck v. l\rember (1878), 74 IST. Y.
620.

A statement in the opinion of the Appellate Division of the
ground, of its decision is controlled by the statement in its order

104 'Court of Appeals Peactice. [Kule 4

of reversal, in case of a conflict or inconsistency between them.
Spies V. Lockwood (1901), 1&5 N. Y. 481.

It has been held that where, from the evidence appearing in
the record, on appeal from an order denying an application for a
writ of mandamus, the court below might have refused the appli-
cation in the proper exercise of its discretion, the Court of
Appeals would not look into the opinion of the General Term to
ascertain if the writ was refused on a question of law only.
People ex rel. Durant Land Improvement Co. v. Jeroloman
(1893), 139 ISr. Y. 14.

It was held that when on appeal to the Court of Appeals from
an order of General Term ^affirming an order of Special Term
which denied a motion for a bill of particulars, the order did
not state the ground for the denial, the opinion of the General
Term could not be looked to to ascertain the ground. C-ohn v.
Baldwin (1894), 141 K y. 563.

Exceptions to the general rule. — While the Court of Appeals
does not refer to the opinion of the court below, as a general rule,
to learn what is the judgment of the court, as the Court of Ap-
peals must act upon the record and the opinion forms no part
of the record proper, still in a case which involves an inquiry
into the power of the court below to correct its records so that
they may express its purpose, the Court of Appeals will look at
the opinion so as to learn what such purpose was. Salmon v.
Gedney (18^8), 75 IST. Y. 479.

ISTotwithstanding the general rule that an Appellate Court is
not to look beyond the order appealed from to ascertain the
ground of judgment, it has been held that it may look into the
opinion of the court below when the terms of the order are am-
biguous (Townsend v. Nebenzhal [1880], 81 JST. Y. 644) ; or when
the order itself refers to the opinion and thus makes it, in effect,
a part of the record. Tolman v. S., B. & N. Y. E. E. Co. (1883),
92 N. Y. 353; Snyder v. Snyder (1884), 96 X. Y. 88; and
when an order certifying a question for review expressly refers
to the opinion of the Appellate Division, the opinion becomes a
part of the record and can be resorted to by the Court of Appeals
for the purpose of ascertaining the ground of the decision ap-
pealed from. Pringle v. Long Island^R. E. Co. (1898), 157 IST.
Y. 100, but this practice is now discountenanced. Matter of

Rule 4] Appellant to Make a Case — Its Fokm. 105

Sandy (1896), 148 N. Y. 403; Townsend v. Bell (1901), 167
N. Y. 462.

Opinion embodied in order. — ^A certificate of the General Term
stating that a reversal was upon the grounds stated in its opinion,
is not .a compliance with the requirement of section 1338 of the
Code of the statement, in the order of reversal, that the reversal
was upon the facts (Matter of Sandy [1896], 148 'H. Y. 403) ;
nor is the embodiment of the opinion of the Appellate Division
in the order of reversal a compliance with that section. Townsend
V. Bell (1901), 167 JST. Y. 462.

While, on appeal from an order which expresses the grounds
upon which it was put, but the expression is coupled with phrases
that make doubt, the opinion may be referred to (Tilton v.
Beecher [1874], 59 W. Y. 176, 182) ; yet where no ground ap-
pears in the order it cannot be qualified in its operation and effect
by reference to the opinion. Fisher v. Gould (1880), 81 IST. Y.
228, citing Hewlett v. Wood (1876), 67 JST. Y. 394, and disap-
proving dictum in Tracy v. Altmyer (1871), 46 IST. Y. 598. Tn
that case (Tracy v. Altmyer), where an order denied a motion
for a new trial, upon the ground of surprise and newly discovered
evidence, and from the Special Term opinion it appeared that
the motion was denied solely upon the ground that it could not
be made after the entry of judgment, it had been said: " This
may, by this court, be taken as suiEcient evidence that the merits
of the application were not considered by the Special Term."

Wrong reason for correct decisions. — The fact that the judg-
ment of the Trial Court was sustained by the Appellate Division
on a different theory than that adopted by the Court of Appeals
is no obstacle to its afiirmance there; for a correct decision will
not be reversed on appeal because founded upon a wrong reason,
at least unless where the ground of decision can be seen to have
misled party to his injury. Ward v. Hasbrouck (1902), 169
IT. Y. 407.

Attorney's lien on cases. — An attorney has a lien on the
printed cases on appeal in his hands for legal services in the
action, although his client had paid the printing disbursements.
Matter of Hollins (1910), 197 K Y. 360.

100 CoijET OF Appeals Peactice. [Eule 4

Case in capital causes.

Tie Code of Criminal Procedure provides as follows:

§ 458. When a party intends to appeal from a judgment rendered after
the trial of an issue of fact he must, except as otherwise prescribed by law,
make a case and procure the same to be settled and signed, by the judge or
justice, by or before whom the action was tried, aa prescribed in the general
rules of practice ; or, in case of the death or disability of such judge or
justice, in such manner as the appellate court directs. The case must contain
so much of the evidence, and other proceedings upon the trial, as is material
to the questions 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, such exceptions taken by any party to the action as shall be
necessary to determine whether there should be a new party, if the judgment
be reversed. If it afterwards becomes necessary to separate the exceptions,
the separation may he made and the exceptions may be stated with so much
of the evidence, and other proceedings as is material to the questions raised
by them, in a case prepared and settled as directed by the general rules of
practice, or in the absence of directions therein, by the court, upon motion.
[Amended by chap. 427 of 1897.]

§ 485, sub. 8. When the judgment is of death, the clerk, upon the settling
and filing of the case, must forthwith cause to be prepared and printed,
and forwarded to the clerk of the Court of Appeals, the number of copies of
the judgment-roll which are required by the rules of the Court of Appeals,
which shall form the case and exceptions upon which ^the appeal shall be heard,
and three copies shall also be furnished to the defendant's attorney, three to
the district attorney, and one to the governor of the State, and the remainder
shall be distributed according to the rules of the Court of Appeals. * * *
[Amended by chap. 427 of 1897.]

Upon appeal in a case where the indictment was found after-
chapter 427 of the Laws of 1897 went into effect, a case should
be made, settled and signed, containing only so much of the evi-
dence and proceedings as is material to the questions to be raised
and it is improper to bring up a transcript of the stenographer's
minutes. People v. Barone (1900), 161 X. Y. 475.

Case part of judgment-roll ; review of settlement. — A case on
appeal from a judgment of death, whenever filed, even if after
a judgment-roll has been made up in the first instance, becomes,
by operation of law, a part thereof and should be attached thereto
in accordance with the general practice ; and the action of the
trial justice in settling the case on appeal from a judgment of
death is reviewable by the Court of Appeals on an appeal by the
defendant from an order of Special Term denying a motion for a
resettlement. People v. Priori (1900), 163 K Y. 99.

Kule 6] Appellant to Serve Copies of Case. lOY

Insertion of motion papers.- — The affidavits and proceedings
on a motion for a nevsr trial upon the ground of newly-discovered
evidence, made after a judgment of death and an appeal by the
defendant therefrom, which have been struck out of the proposed
case on appeal, on the settlement thereof, by the allowance of an
amendment prepared by the district attorney, should be restored
on a motion for its resettlement by disallowing such amendment
and inserting the affidavits and proceedings in the case. Id.

RULE V.

Cases and Points to be Printed — Mode of Printing.

All cases and points, and all otlier papers furnished to
the court in calendar causes, shall be printed on white
paper as provided in section 796 of the Code of Civil Pro-
cedure, [and if bound, the covers shall be of light-colored
paper which can be legibly written upon]. Tlie folio
numbering from the commencement to the end of the case,
shall be printed on the outer margin of the page. Small
pica, leaded, or ten point, leaded with 4-to-pica leads, is the
smallest letter and most compact mode of composition
which is allowed. No charge for printing the papers men-
tioned in this rule shall be allowed as a disbursement in a
cause, unless the requirements of the preceding sentence
shall be shown, by affidavit, to have been complied with in
all papers printed.

The Code.

Section 796 of the Code of Civil Procedure provides as follows:
* * * All cases, briefs, points or other pai>ers required or used on
an appeal from any judgment, determination or order of any court or board
shall be printed (when required to be printed by the rules of any court)
on paper of a uniform size, as follows : The paper must be ten and one-half
inches by eight inches, and, bound on the edge of the greuteBt leiiirth.

RULE VI.

Appellant to Serve Copies of Case — Effect of His Default.

Within forty days after the appeal is perfected, the ap-
pellant shall serve three printed copies of the case on the

108 CcuET OF Appeals Practice. [Rule &

attorney of the adverse party. If he fail to do so, the re-
spondent may, by notice in writing, require the service of
such copies within ten days after the service of the notice,
and if the copies be not served in pursuance of such notice,
the appellant shall be deemed to have waived the appeal;
and on an affidavit proving the default and the service of
such notice, the respondent may enter an order with the
clerk dismissing the appeal for want of prosecution, with
costs, and the court below may thereupon proceed as though
there had been no appeal.

When appeal perfected.

The appeal is perfected and the forty days within which copies
of the case must be served, begin to run when the requisite under-
taking for costs is given and copy served. Code Ci^'. Proc.,.
§ 1326 ; see, also, under Rule I.

Failure to serve cases; dismissal of appeal.

Return not filed. — It is no excuse for nonservice of copies of
the case as required by the rule, that the appellant has not caused
the return to be made and filed. The respondent is not required
to proceed under Rule I for a dismissal on failure to file return,
but may wait until the time for serving cases has expired and
then proceed for a dismissal of the appeal under Rule VI. Sage
V. Volkening (1871), 46 IST. Y. 448.

Default; opening. — Where the proceedings on the part of the
respondent in dismissing an appeal under this rule are regular,
the default ought not to be opened as matter of favor, imless there
is some reason to think that the judgment so obtained is not in
strict conformity with the real merits and equity of the case.
Keuka Nav. Co. v. Holmes (1885), 98 X. Y. 655.

Unless the respondent can show some delay or inconvenience
from failure to serve copies of the case, a default taken therefor
under the rule should be relieved against upon terms, where it
appears the appeal is brought in good faith. Waterman v. Whit-
ney (Ct. App. 1853), 7 How. Pr. 407.

Laches. — ■ For circumstances which were held to show such de-
lay and acquiescence as to call for a denial of a motion to set

Eule 6i] Appellant to Sebve Copies of Case. 10i9

aside an order dismissing an appeal for failure to serve printed
papers, see Matter of Boston (Ct. App. 1&84), 19 Wkly. Dig. 470.

Remittitur, when to issue. — On the dismissal of an appeal
Tinder this rule, .after the return has been filed, a remittitur
should issue. Dresser v. Bi-ooks (1850), 2 IST. Y. 559.

Belief, after remittitur sent down. — ^When an appeal is regu-
larly dismissed under this rule and the remittitur sent down and
judgment thereon perfected in the court helow, the Appellate
Court loses all power over the case; but if the order of dismissal
was irregularly obtained, it seems that the Court of Appeals may
grant relief by vacating the order of dismissal. But so long as
the order of the Court of Appeals stands, the court below is bound
by it and has no power to make any order impairing its force.
ISTewton v. Harris (1850), 8 Barb. 306.

■Where an appeal to the Court of Appeals has been dismissed
for failure to serve copies of case, and the remittitur has been
sent down, judgment entered thereon and execution issued, a mo-
tion will not be entertained to reinstate the appeal. It seems that
in such case the appellant should move in the court below to have
the proceedings there vacated, and the remittitur returned to
the Court of Appeals, to the end that he may then make his mo-
tion for relief. Jones v. Anderson (1877), 71 N. Y. 599.

(As to return of remittitur to enable the Court of Appeals to
resume control of the cause so as to entertain motions therein,
see, also, under Rules XI and XVI.)

Imperfect case.

A dismissal under this rule, by ex parte order, can only be
had where there is a total failure to serve any case within the
time prescribed. Where an imperfect case has been served, the
respondent must make a motion, on notice, to have the case cor-
rected .and proper copies served or the appeal dismissed. Bowers
V. Tallmadge (1861), 23 K Y. 166; Bliss v. Hoggson (1881),
84 K Y. 667.

(See under Eule XI, motions to dismiss appeal.)

iPractice of clerk's office.

On receipt of an affidavit from the respondent's attorney, prov-
ing the default and service of notice, as prescribed by the rule,
the clerk will enter the proper order (which need not be drafted

110 'CouET OF Appeals Pbactiob. [Rule T

ty the attorney), dismissing the appeal, with costs, and will trans-
mit a certified copy thereof to the respondent's attorney. The fee
for such order and copy is one dollar.

If the return has been filed, a remittitur will be issued and
transmitted with the order. The fees for remittitur is two dollars.

KTJIE VII.
Copies of Cases and Points.

At least twenty days before a cause is placed on the day
calendar, the appellant shall file with the clerk eighteen*
printed copies of the case ; and shall at the same time file
with the clerk eighteen* printed copies, and serve on the
attorney or counsel for the respondent three printed copies,
of the points to be relied on by him, with a reference to
the authorities to be cited. Within ten days after such
service the respondent shall file with the clerk eighteen*
printed copies, and serve on the attorney or counsel for the
appellant three printed copies, of the points to be relied
on by 'him, with a reference to the authorities to be cited.

If the appellant desires to present points or authorities
in reply, he shall file with the clerk eighteen* printed copies
thereof and serve three printed copies on the attorney or
counsel for respondent, within five days after receipt of the
respondent 's points ; and no supplemental points will be al-
lowed from either side unless specially requested by the
court.

No points will be received by the court on argument or
submission unless they shall have been filed and served as
above provided [except that in appeals under Rule XI
noticed for the first Monday of a session, and in causes
upon a new general calendar to be heard during the first
two weeks of any session at whi<Jh such new calendar is
taken up, the parties shall file the printed cases and file
and serve or exchange the printed points, at least two days
before the commencement of the session].

The cases and points filed with the clerk shall be disposed

* Substituted for sixteen, by order of October 13, 1910.

Rule Y] Copies op Cases and PoiiirTs. Ill

of as follows : One copy shall be furnished to each of the
judges ; one copy shall be kept by the clerk, with the records
of the court; one copy shall be deposited in the State
Library; one copy shall be deposited in each branch of the
library of the Court of Appeals; one copy shall be de-
posited in the library of the New York Law Institute ; one
copy shall be deposited in the Law Library of Brooklyn;
one copy shall be deposited in the Law Library of the
Eighth Judicial District, and one copy shall be delivered to
the reporter.

Points.

Definition. — Under the rules of the Court of Chancery in ref-
erence to costs, it was said that the heads of an argument, together
with the authorities cited, but not the argument at length, are em-
braced under the term " points." Gray v. Schenck (Supr. Ct.
1848), 3 How. Prac. 231. But, in applying Eule VII, the entire
printed argument is included in the word " points " — i. e., all
matter, which is intended to be presented to the court, in print,
must be filed and served.

Replying "points. — Under a similar rule to this, the Appellate
Division, First Department, has held that, although rejoinder
briefs to replying briefs are not authorized, where an appellant
omits vital points from his original brief and puts them in his
replying brief so as to place the respondent at a disadvantage, the
replying brief will be stricken from the files. Ardslino v. Rein-
hardt (1908), 128 App. Div. 339.

Exceptions relied on. — Counsel should aid the court by select-
ing from the case the exceptions upon which he relies, and stating
in his points the grounds of his claim to have them sustained.
A mere reference to a mass of exceptions to rulings on evidence,
by folios of the case, is not sufiicient. Hebbard v. Ilaughian
(18Y'7), 70 N. Y. 54, 60; J^elson v. Village of Canisteo (1885),
100 N. Y. 89. See, also, Jewell v. Van Steenburgh (1874), 58
K Y. 85.

Exception not noticed. — It is the ordinary rule that an excep-
tion not noticed in the appellant's points (Pratt v. Strong [1S66],
•3 Keyes, 53), nor raised on argument, is to be deemed abandoned.

112 CouKT OF Appeals Peactice. [Rule 7

Rogers v. Laytin (1880), 81 IST. Y. 642; Sutherland v. Rose
(1866), 47 Barb. 144.

Point not raised below. — A question not presented on the trial
cannot be heard in the Court of Appeals (Salisbury v. Howe
[1881], 87 i\. Y. 128; Werner v. City of Rochester [1896],
149 N. Y. .563) ; nor can a claim not made below be granted in
the Court of Appeals (Quinby v. Carhart [1892], 133 N. Y.
579) ; and, in a civil action, no objection not taken upon the trial
and saved by an exception can be considered in the Court of
Appeals. Hecla Powder Co. v. Signa Iron Co. (1898), 157 N.
Y. 437.

An objection that the summing up of counsel upon the trial was
improper in that it was not confined to the evidence, but was an
inflammatory appeal to the passions and sympathies of the jury,
which resulted in an excessive verdict, cannot be considered on
appeal to the Court of Appeals where the record presents no
proper exception raising it. Dimon v. IST. Y. C. & H. R. R. R.
Co. (1903), 173 N. Y. 356, 635.

The objection that the contract in suit contravened federal
legislation not made below, cannot be raised in the Court of Ap-
peals for the first time. ISJ". Y. Bank Note Co. v. Hamilton B.
N. Co. (1905), 180 IT. Y. 280.

A defense which was not pleaded and was not raised in any
way in the courts below cannot be presented for the first time
in the Court of Appeals. Dr. David Kennedy Corp'n v. Kennedy
(1901), 165 N. Y. 353 ; iSTational Revere Bank v. National Bank
of Republic (1902), 172 N. Y. 102.

The question whether or not a former judgment is a bar to a
subsequent action between the same parties cannot be considered
by the Court of Appeals upon an appeal from an order reversing
a judgment therein, upon questions of law and granting a new
trial, where, although it was read in evidence upon the trial
without objection, it was not pleaded as a bar and the trial court
made no finding of fact or conclusion of law concerning the same.
Fritz V. Tompkins (1901), 168 K Y. 524.

Where it is assumed upon a trial for murder that the venue was
laid in the proper county, and the testimony clearly imports that
the crime was committed in that county, the objection that it
was not so proven cannot be considered on appeal. People v.

Rule 7] Copies of Cases and Points. 113

Pugh (1901), 167 :N'. T. 524. See, also, Daley v. Brown (1901),
167 N. Y. 381.

An objection to evidence not raised below cannot be considered
on appeal. People v. Holmes (1901), 166 N. Y. 540.

Question of constitutionality. — The objection that a statute or
a contract contravenes the Constitution will not be considered in
the Court of Appeals when it was not raised below. Purdy v.
Erie R. R. Co. (1900), 162 N. Y. 42; Corcoran v. X. Y. C. &
H. R. R. R. Co. (1900), 1G4 X. Y. 587; Dodge v. Cornelius
(1901), 168 K. Y. 242; Paul v. D., L & W. R. R. Co. (1903),
375 N. Y. 478; Matter of Anderson (1904), 178 K Y. 416.

C on^siitutional question raised by exceptioiu — An objection by
the appellant that the constitutionality of a statute under which he
claims office cannot be attacked for the first time in the Court of
Appeals is without force, where an exception was taken to the
decision of the trial judge that he was lawfully appointed, and the
constitutional question was the only one discussed in the opinion
of the Appellate Division. People ex rel. Bush v. Houghton
(1905), 182 N. Y. 301.

Question of public policy. — Where an appeal involves a ques-
tion of grave public policy, the people are indirectly parties to
it, and their interests should be looked after by the courts even
when the party who might have objected is silent. On this
ground, a question as to the violation of the constitutional pro-
vision against leases of agricultural land for a longer period than
twelve years, though not presented by the pleadings, or at the
trial, or on the intermediate a23peal, ought to be decided by the
Court of Appeals, when it is covered by an exception, although
not specifically mentioned. Massachusetts Nat. Bank v. Shinn
(1900), 163 iST. Y. 360.

New objection to evidence. — An objection to the admission of
evidence not made at the trial cannot be invoked on appeal to
uphold the erroneous exclusion of such evidence and sustain the
judgment. Seidenspinner v. Metropolitan Life Ins. Co. (1903),
175 E". Y. 95.

Where, by his acts, a party has recognized the validity of a
statute, and may be deemed to have waived objection to its con-
stitutionality by failing to allege it by answer or on the trial, it
seems that such objection cannot be made in the Court of Ap-
peals for the first time. Vose v. Cockroft (1871), 44 S". Y. 415.

114 CouET OF Appeals Practice. [Rule 7

Citation of authorities; scope of opinions. — In applying cases
which have been decided, wthat may have been said in an opinion
should be confined to and limited by the facts of the case under
consideration vphen the expressions relied upon were made, and
should not be extended to cases where the facts are essentially
different. Crane v. Bennett (1904), 177 N. Y. 106. A judicial
opinion, like evidence, is only binding so far as it is relevant, and
when it wanders from the point at issue it no longer has force as
an official utterance. Colonial City Traction Co. v. Kingston
City E, R. Co. (1897), 154 IT. Y. 493.

The 'Court of Appeals has no jurisdiction to consider a matter
or subject that has not been presented for adjudication to the
subordinate court; and this exclusion covers a question as to the
constitutionality of a law or as to the sufl&ciency of a pleading,
and such questions cannot be raised for the first time in the Court
of Appeals. Delaney v. Brett (1872), 51 IST. Y. 78.

An objection that the court had no jurisdiction of the subject-
matter of the action may be insisted upon in the Court of Appeals
and prevail there, although not raised below, if the ground of the
objection is such that it could not have been obviated in the court
of original jurisdiction, had it been made there. Cook v.
Whipple (1873), 55 N. Y. 150, 157, citing Delafield v. State of
Illinois (Ct. of Er. 1841), 2 Hill, 159. See, also. Dr. David
Kennedy v. Kennedy (1901), 165 N. Y. 353; Dodge v. Cornelius
(1901), 168 ]Sr. Y. 242.

The right to object in the Court of Appeals to the failure of
the adverse party to take an exception to the decision of the trial
court is not waived by failing io make it the subject of a distinct
point in the Appellate Division or to make the specific claim that
the latter court had no jurisdiction to review the decision, and
by stating in such court that the sole question in the case was
one relating to the merits, where the brief in such court called
attention to the lack of exceptions. Ross v. Caywood (1900),
162 N. Y. 259.

Point raised at trial, hut not at General Term. — It has been
held that a party was not prevented from urging in the Court of
Appeals a point distinctly made and presented on the trial, be-
cause it was not made at General Term. Cohn v. Goldman
(1879), 76 IST. Y. 284. And it seems that objections which are
in the case, arising iipon the evidence and involved in the contro-

Rule 7] Copies of Cases axd Points. 115

versy, as distingaiished from mere preliminary objections to the
proceedings, are available to the unsuccessful party, on appeal,
although they may not have been considered in the lower court.
Cowenhoven v. Ball (1890), 118 N. Y. 231.

On appeal from order granting neiv trial. — Upon appeal to
the Court of Appeals from an order granting a new trial, the ap-
pellant takes the risk, not only of the questions considered by the
court below, but of every other exception appearing on the rec-
ord; the respondent may sustain the order upon showing any
legal error, whether noticed by the court below or not. Mackay
V. Lewis (1878), 73 K Y. 382.

New theory of case. — It has been held that the Court of Ap-
peals would not, for the purpose of sustaining a judgment re-
versed by the General Term, permit counsel to shift his ground
after the theory on which the case had been tried and decided
had been upset by the General Term, and adopt a theory not set
up in the complaint or broached upon the trial. Stapenhorst v.
Wolff (1875), 65 K Y. 596. See, also, Salisbury v. Howe
(1881), 87 N. Y. 128, supra; Heimburt^- v. Manhattan Ev. Co.
(1900), 162 E". Y. 352.

And where, so far as appears from the record, the appellant
from a judgment entered on a verdict acquiesced in the submis-
sion of all the issues to the jury, he cannot be heard in the Court
of Appeals to claim that the evidence does not warrant the ver-
dict. Hecla Powder Co. v. Sigua Iron Co. (1898), 157 N. Y.
437.

When an action has been tried by the unsuccessful party upon
the theory that an instrument required reformation, and his effort
to reform the instrument has failed, he cannot change his theory
of the case in the Court of Appeals and is not entitled to invoke
a judicial construction that, as originally drawn, the contract
needed no reformation and could be read as if reformed. Greene
V. Smith (1899), 160 N. Y. 533.

A party who has acquiesced in the trial of an action upon a
certain theory will not be heard to assert for the first time on
appeal that there was error in adopting the theory he assisted in
establishing as the law of the case. Caponigri v. Altieri (1901),
165 IST. Y. 255.

Where an action has been brought as an action at law, and
tried and determined througbout on that theory, the claim that

116 CouKT OF Appeals Peactice. [Rule 7

the evidence was sufficient to support a bill in equity is not avail-
able in the Court of Appeals as an answer to the objection that
the plaintiff had mistaken his renied,y. Stevens v. Meriden Bri-
taniaCo. (1899), 160' K". Y. 1Y8.

The defense that an abutter cannot recover damages from an
elevated railroad because the premises were in possession of ten-
ants, will not be considered for the first time in the Court of
Appeals, when such defense was not pleaded or the question in
any manner raised upon the trial. Post v. Manhattan Ry. Co.
(1890), 125 ISr. Y. 697.

Where a proceeding by a street railroad company to cross the
tracks of a steam railroad company has been tried upon the theory
that 'the applicant must comply with the Condemnation Law (L.
1890, ch. 95) in procuring consents of the property owners and
the local authorities, an appeal by it from a denial of its appli-
cation must stand or fall upon that theory, and it cannot suc-
cessfully urge on appeal that such consents were unnecessary.
G. & W. Ry. Co. V. K Y. C. & H. R. R. R. Co. (1900), 163
II. Y. 228.

An appellant will not be permitted to claim that an erroneous
rule of damages was followed, where both sides tried the case
upon the theory in question, and no question as to its correctness
was raised at the trial. Woolsey v. K. Y. Elevated R. R. Co.
(1892), 134 N. Y. 323; Mitchell v. Met. Elevated Ry. Co.
(1892), 132 K Y. 552.

Assumption as to theory of recovery. — AYhere a plaintiff seeks
to recover upon one of two theories, and the amount of the ver-
dict depends upon which theory the jury finds to be in accord
with the facts, their verdict for the plaintiff in one of the amounts
is to be taken as establishing the theory which would entitle the
plaintiff to that amount, and the questions to be decided upon
appeal are those which depend upon that assumption. Lowenstein
V. Sombard (1900), 164 ]\". Y. 324.

Scope of argument. — Upon the certified question whether the
defense contained in the answer is insufficient in law upon the
face thereof to constitute a defense, the arguments of counsel
should include a discussion of the sufficiency of the complaint.
Baxter v. iMcDonnell (1897), 154 N. Y. 432.

It is not the practice of the Court of Appeals to search the com-
plaint on a motion apparently not involving the merits with the

Rule 7] Copies of Cases and Points. 117

care used on demurrer, but where an order for the publication of
a summons has been reversed upon the ground that the complaint
fails to state facts sufficient to constitute a cause of action the
court will determine that question. Grant v. Cobre Grrande Cop-
per Co. (1908), 193 K Y. 306.

Proof of service of points.

Service of points on the attorney or counsel for the opposite
side should be proved, in each instance, by filing with the clerk
an affidavit or admission of service with the copies of the re-
spective points required to be filed with him. Such proof of
service is requisite to entitle the points to be received by the court,
in view of the provision of the rule, that " no points will be
received by the court on argument or submission unless they
shall have been filed and served as above provided."

There seems to be no objection to attorneys waiving, as between
themselves, the requirements in reference to service of the printed
papers upon each other ; but no stipulation of attorneys is per-
mitted to affect the requirements of the rule as to the time within
which papers must be filed with the clerk of the court.

It is understood that, after the appellant's points have been
filed, they cannot be withdrawn and new points substituted, with-
out leave of the court and consent of the respondent.

In Turvoshke v. Friederich (1898), not reported, the court
imposed the payment of ten dollars upon the appellant on his
failure to file and serve cases and points, and on giving him time
to submit the same after the case was reached for argument.

libraries.

The libraries, in which copies of cases and points are deposited
under the rule, are located as follows:

1. State Library, the Capitol, Albany.

2. Court of Appeals Librarj^, courthouse, Syracuse.

3. Court of Appeals Library, courthouse, Rochester.

4. Court of Appeals Library, courthouse, Binghamton.

5. ISTew York Law Institute Library, post-office building, New
York.

6. Law Library of Brooklyn, courthouse, Brooklyn.

7. Law Library of the Eighth Judicial District, city and county
hall, Buffalo.

.118 CouET OF Appeals Peactice. [Eule 8

EULE VIII.

Statement and Discussion of Facts — Absent Judges.

In all causes each party shall briefly state upon his
printed points, in a separate form, the leading facts which
he deems established, with a reference to the folios where
the evidence of such facts may be found. And the court
will not hear an extended discussion upon any mere ques-
tion of fact.

Every cause shall be deemed to be submitted to such
judges as may be absent at the time of the argument, un-
less objection to such submission by counsel arguing the
cause be then made.

Application of the rule.

The requirement of the rule, that the facts shall be " briefly "
stated, necessarily excludes lengthy quotations from the evidence,
particularly in a case of unanimous affirmance where the Consti-
tution prohibits a review of the facts. The rule calls for the
facts, not the evidence. Even in stating the facts deemed estab-
lished, except in two classes of cases, only those facts should be
mentioned which are either specifically found, or are presumed
to have been found, according to the rules governing appeals to
the Court of Appeals. The excepted cases, are first, where there
is a reversal by the court below ; second, where there is an affirm-
ance, but it is not unanimoiTS and it is claimed that there is no
evidence whatever to support a fact which is necessary to sustain
the judgment. In all cases, every fact stated should be fortified
by a reference to the folios of the appeal book where the evidence
to support it may be found, for the rule so requires, and unless
it is complied with the statement is of such slight value that the
judges are frequently compelled to disregard it and laboriously
discover the facts for themselves. Even when -the affirmance is
not unanimous, counsel should not state, as established facts,
whatever allegations they may think -.wo supported by the weight
of evidence, provided there is some evidence which, when reason-
ably considered, would support the opposite view and from the

liule 8] Statement and Discussiok of Facts. 119

form of the decision the presumption is that the trial tribunal
foimd accordingly. Extended quotations from authorities have
no place in the points which, after stating the facts fairly, should
set forth the positions insisted upon by counsel, the heads of the
argument and the authorities relied upon to support it. Stevens
V. O'Neil (1902), 169 N. Y. 375.

Statement of facts. — A fair statement of the facts is essential
to a proper presentation of an appeal. An unfair statement is
certain to be discovered, and when discovered affects the force
of the entire brief. "When the facts are not open to review they
should be stated as found, or as presumed to have been found.
When the facts are to be reviewed it is proper for counsel to
state them as he claims they should have been found in accordance
with the weight of evidence, citing the folios where the evidence
appears in the record, but on the crucial points he should also
state the testimony opposed to his theory, so that the court may
have before it a faithful picture of the whole case. A failure to
observe these rules increases the labor of the court and reflects
upon the integrity of the brief. People v. White (1903), 176
N. Y. 331.

Consideration of facts, on appeal from General Term.

While the consideration of facts by the Court of Appeals in
reviewing determinations of the Appellate Division of the Su-
preme Court is regulated by the amendments to the Constitution
and to sections 191, 1337 and 1338 of the Code of Civil Pro-
cedure, which went into effect January 1, 1896, the pre-existing
practice relating to appeals from orders made or judgments ren-
dered by a late General Term before the last day of December,
1895 (Const, art. 6, § 9), continues to be of interest in
construing and applying the recent amendments. Sections 1337
and 1338, of the Code of Civil Procedure, which controlled the
former practice, are therefore now given in the form in which
they existed prior to January 1, 1896, together with decisions
illustrating their application.

§ 1337. An appeal to the Court of Appeals from a final judgment, or from
an order granting or refusing a new trial in an. action, or from a final order
affecting a. substantial right, made, either in a special proceeding, or upon
a summary application after judgment in an action, brings up for review,

120 Court of Appeals Peactioe. [Rule 8

in that court, every question afi'ecting a substantial riglit, and not resting
in discretion, which was determined by the General Term of the court below,
in rendering the judgment or making the order, from which the appeal is
taken; except that a question of fact, arising upon conflicting evidence, can-
not be determined upon such an appeal, unless where special provision for
the determination thereof is made by law. An exception to the finding of
a. fact unsupported by any evidence Shall be deemed to present a question of
law upon an appeal to the Court of Appeals, and in any action on an appeal
to that court the court may, in its discretion, either modify or affirm the
judgment or order appealed from, award a new trial, or grant to either party
such judgment as such party may be entitled to. [As originally enacted in
1S7G (except the last sentence, which was added by chap. 688 of 1894) and
in force until December 31, 1895.]

§ 1338. Upon an appeal to the Court of Appeals from a judgment, revers-
ing a judgment entered upon a, referee's report, or a decision of the court,
upon a trial without a jury; or from an order granting a new trial, uj-on
such a reversal; it must he presumed that the judgment was not reversed,
or the new trial granted, upon a question of fact, unless the contrary clearly
appears in the body of the judgment or order appealed from. In that case,
the Court of Appeals must review the determination of the General Term of
the court below, upon the questions of fact, as well as the questions of law.
[As originally enacted in 1876 and in force until December 31, lsn.5.1

Amended sections 1337 and 1338 of the Code, which apply to
appeals from the Appellate Division of the Supreme Court, are
as follows :

§ 1337. An appeal tO' the Court of Appeals from a final judgment, or from
an order, granting or refusing a new trial in an action, where the appellant
stipulates that upon afiirmance judgment absolute shall be rendered against
him, brings up for review in that court only questions of law; but where the
justices of the Appellate Division from which an appeal is taken are divided
upon the question as to whether there is evidence supporting or tending to
support a finding or verdict not directed by the court, a question for review
is presented. In any action on an appeal to the Court of Appeals, the
court may either modify or afiirm the judgment order appealed from, award
a new trial, or grant to either party such judgment as such party may he
entitled to. [As amended by chap. 946 of 1895, which took effect January 1.
1896.]

§ 1338. Upon an appeal to the Court of Appeals from a judgment revers-
ing a judgment entered upon the report of .i referee, or u determination in
the trial court; or from an order granting a new trial, upon such a reversal:
it must be presumed that the judgment was not reversed, or the new trial
granted, upon a question of fact, unless the contrary clearly appears in the
record body of the judgment or order appealed from. [As amended by chap.
946 of 1895, which took effect January 1, 1896.]

Rule 8] Statement and Discussion of Facts. 121

Section 1022, Code of Civil Procedure, provides as followrs :
The decision of the court or the report of a referee, upon the trial of
the whole issues of fact, must state separately the facts found and the con-
clusions of law, and direct the judgment to be entered thereon, which deci-
sion so filed shall form part of the judgment-roll. In an action where the
costs are in the discretion of the court, the decision or report must award
or deny costs, and if it awards costs, it must designate the party to whom
the costs to be taxed are awarded.

Revieiv of disputed facts not contemplated. — The general statu-
tory scheme for the distribution of judicial powers, does not con-
template the review by the Court of Appeals of disputed questions
of fact, and it will not entertain such questions in the absence
of express legislative authority. People ex rel. Murphy v. French
(1883), 92 jST. Y. 306.

The doctrine that it is not the function of an appellate court
to determine controverted questions of fact applies to an appeal
from a final order in a special proceeding as well as to an appeal
from a judgment. Matter of Fitzsimmons (1903), 174 IST. Y. 15.

The Court of Appeals has no power to review the facts found
by the Supreme Court on certiorari for the review of a tax assess-
ment. (People ex rel. Cornell Steamboat Co. v. Dederick (1899),
161 K Y.' 195.

Unanimous affirmance helow on disputed facts. — ^ Upon appeal
from a unanimous affirmance by the Appellate Division of a
judgment recovered upon a verdict, the disputed facts must be
deemed, in the Court of Appeals, to be settled in the respondent's
favor. National Revere Bank v. ISTational Bank of Republic
(1902), 1Y2 IST. Y. 102.

General exception to conclusion of law. — A general notice of
exception to conclusions of law, in an action tried by a referee
or by the court without a jury, is insufficient to raise any question
of law. To be effective, the notice must contain a specific excep-
tion to the ruling sought to be reviewed. Drake v. X. Y. Iron
Mine (1898), 156 E". Y. 90; Colby v. Town of Day (1904), 177
N. Y. 548.

Conflicting evidence. — It seems that, unless special provision
authorizing it can be found in the law, there can be no review
in the Court of Appeals of questions of fact, depending upon
conflicting evidence in anv case. Matter of Ross (1882), 87
K Y. 514.

122 CouET OF Appeals Practice. [Rule 8

The provision of the ('ode relating to appeals from decrees of
surrogates (§ 258G), that "where an appeal is taken upon the
facts, the appellate court has the same power to decide the ques-
tions of fact which the surrogate had," etc., applies exclusively
to appeals to the Supreme Court. Id.

Code of Civil Procedure, section 993 :

Upon the trial of an issue of fact by a referee or by a court without a
jury, a. finding of fact without any evidence tending to sustain it, is a, ruling
upon a question of law * * * ' Added by ch. 85, Laws of 1903.

Short-form decision. — The difference, both in form and effect,
between the short form of decision permitted by section 1022 of
the Code from the amendment of 1894 to that of 1903, and the
long form then also permitted, and now and prior to 189i re-
quired, by that section, is discussed in Jefferson County ~S&i. Bk.
V. Dewey (1905), 181 K Y. 98, where it is held that a general
exception to a short-form decision raises every question of law
in the case.

Under the short form of decision allowed by section 1022 of
the Code prior to its amendment by chapter 85 of the Laws of
1903, the Court of Appeals was required, upon review, to assume
that the necessary facts to support the judgment were found,
treating the decision similar to that of a verdict of a jury; under
a long form of decision, where all of the material facts have been
specifically found and the judgment entered upon the decision
has been unanimously affirmed in the Appellate Division, the
facts, as found are established, and the question with reference
thereto for the determination of the Court of Appeals is whether
such facts authorize the judgment that has been entered. Ide
V. Brown (1901), 178 X. Y. 26.

When the report of a referee is general, without finding the
facts in detail, a general exception filed thereto is sufficient to
authorize a review of the referee's decision by the appellate
courts; and the presiimption in support of the judgment ren-
dered by him is that all the facts, warranted by the evidence and
necessary to support his judgment, were impliedly found by
him. Petrie v. Hamilton College (1899), 158 K Y. 458.

Where a judgment entered upon a decision in the short form
is unanimously affirmed by the Appellate Division, the Court of

Kiile 8] Statement ais^d Discussion of Facts. 123

Appeals is concluded thereby and, whatever the views of the
coiirt may be, it must assume that facts sufficient to sustain the
decision were necessarily found by the trial court. Hutton v.
Smith (1903), 175 N. Y. 37-5.

The referee's omission in a short-form decision under section
1022 of the Code, to find a material fact, pleaded and conclusively
proved on the trial, does not constitute an error of law, which the
Court of Appeals can review. National Harrow Co. v. Bement
(1900), 163 N". Y. 505.

Facts involved in a motion. — While, when there is conflicting
evidence with respect to a disputed fact arising upon a motion,
the court in which the motion is made has power to settle the
conflict, and the Court of Appeals may not interfere with the re-
sult, when the affidavits upon the one side contain positive proof,
and upon the other merely statements of persons who cannot
possibly know the facts, and whose statements, therefore, are
mere expressions of opinion, and the decision below is based upon
these statements, it is reviewable in the Court of Appeals.
Taylor v. Granite State Provident Association (1893), 136 IST.
Y.':U3.

If there is conflicting evidoice as to whether the examination
of a long account will be involved, the decision of the court be-
low, ordering a reference, vnll not be reviewed in the Court of
Appeals. Welsh v. Darragh (1873), 52 IST. Y. 590. But where
there is an entire failure of proof upon the point, it becomes
purely a question of law for the consideration of the Court of
Appeals. Cassidy v. McFarland (1893), 139 X. Y. 201, 207.

Weight of evidence. — ^ The Court of Appeals has no jurisdic-
tion, under any circumstances, to review the weight of evidence
on a jury trial (Finney v. Gallaudet [1890], 119 N". Y. 661;
2'3 ]Sr. E. 1113) ; or on a trial by the court or a referee, sustained
at General Term. Healy v. Clark (1890), 120 ^^. Y. 642.

But, w'here the evidence, which appears to be in conflict, is
nothing more than a mere scintilla or where it is met by well
known and recognized scientific facts, about which 'there is no
conflict, the Court of Appeals will exercise jurisdiction to review
and to reverse if justice requires. Hudson v. Eome, W. & 0.
K. E. Co. (1895), 145 N. Y. 408; Matter of Harriot (1895),
145 ISr. Y. 540.

124- CouET OF Appeals Pbactice. [Rule 8

Facts on appeal from hoard of claims. — Under the provisions
of the act which formerly authorized appeals to the Court of
Appeals " upon questions of law only," from a final award of the
board of claims, and declared that the practice upon the hearing
of such appeals should conform as near as might he, to that pre-
vailing upon appeals from a court of record, it was held that the
facts were not reviewable when there was a conflict of evidence,
or any evidence to support the determination of the board. Bower
V. State of l^ew York (1892), 134 N. Y. 429.

Cases tried hy jury. — The Coui-t 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 (1892), 133 X. Y. 564. But where, in such a case, the
General Term reverses the judgment, but instead of granting a
new trial directs judgment absolute, its decision is reviewable in
the Court of Appeals. Goodwin v. Conklin (1881), 85 X. Y.
21; followed in Gawthrop v. Leary (1882), 89 IST. Y. 622.

An appeal to the Court of Appeals from an order of General
Term granting a new trial, in a case tried by a jury, will not be
entertained if any material and controverted question of fact was
involved, and the General Term might have granted the new trial
upon such question of fact (Harris v. Burdett [1878], 73 JST. Y.
136; iSnebley v. Conner [1879], 78 N". Y. 218; but see Matter
of Mosher [1906], 185 JST. Y. 435; Williams v. D., L. & W. E.
E. iCo. [1891], 127 N. Y. 643; Chapman v. Comstock [1892],
134 N. Y. 509) ; and the same rule prevails on appeal from the
Appellat;e Division. Caponigri v. Atheri (1900), 164 N". Y. 476.

In a case tried by a jury, it is not necessary that an order of
reversal by the General Term should state whether the reversal
was on questions of law or fact ; and where it does not state that
the reversal was upon questions of fact, if the facts were properly
before the court for review, it is not to be presumed that the re-
versal was upon questions of law only. The rule applicable to
oases tried by a referee or by the court without a jury (§ 1338)
does not apply to cases tried by a jury. Goodwin v. Conklin
(1881), 85 N. Y. 21, supra.

In an order of the General Term reversing, upon the law only,
a judgment entered on a verdict, and an order denying a motion
for a new trial which raised the question whether the verdict was

Eule 8] Statement and Discussion of Facts. 125

against the weight of evidence, a statement that the court " exam-
ined the facts and found no error therein " is sufSeient to au-
thorize a review of the decision of the General Term. Judson v.
Central Vermont E. R. Co. (1899), 158 K Y. 597.

Affirmance of reversal on facts. — ■ Upon appeals from orders of
the Appellate Division reversing judgments upon the facts as
well as the law, if the evidence raises a question of fact the judg-
ments will be affirmed in all cases except in rare instances where
peculiar circumstances require the dismissal of the appeal in order
to prevent injustice. Crooks v. People's Nat. Bank (1903), 177
N. Y. 68.

Order must show reversal on facts. — Under section 1338,
where an order of General Term reversing a judgment in an
action tried by the court or a referee does not state that it was
made on questions of fact, it will be deemed to have been made
on questions of law only (Weyer v. Beach [1880], 79 W. Y. 409 ;
Wardv. Craig [1882], 87 X. Y. 550; Hannigan v. Allen [1891],
127 ]Sr. Y. 639 ; Eeed v. McConnell [1892], 133 N. Y. 425) ; and
this, although the opinion of General Term shows that it was
upon the facts (Cudahy v. Ehinehart [1892], 133 IT. Y. 248) ;
and the only inquiry in the Court of Appeals is whether the re-
versal rests upon any error of law. Davis v. Leopold (1881), 87
N. Y. 620. It has been held, however, that a statement in the
order that the reversal was " upon the law and the facts " satis-
fied the requirement that it must have been " upon a question of
fact." Van Wyck v. AVatters (1880), 81 N. Y. 352.

Although a review of the opinion of the General Term may
indicate that a reversal of a judgment by it was based upon the
facts, the presentation of a certificate of the General Term stating
that its reversal was upon " the ground stated in the opinion " is
not a proper mode of informing the Court of Appeals that the
reversal was upon a question of fact. ]\Iatter of Laudy (189'6),
148 IS. Y. 403.

Where the General Term, upon reversing a judgment, specifies
in the order that the reversal was upon both the law and the
facts, and the conclusion involves a different view of botli the
facts and the law from that adopted by the trial court, the facts
are open to review; and, to sustain the reversal, the Court of
Appeals must be satisfied that one or more of the findings of the

126 Court of Appeals Peactice. [Rule S

trial court are against the weight of evidence or that the proofs
clearly preponderate in favor of a contrary result. Higgins v.
Grouse (1895), 147 K Y. 4-11; Barnard v. Gantz (1893), 140
N". Y. 249; Baird v. Mayor, etc. (1884), 96 N. Y. .567; Ald-
ridge v. Aldridge (1890), 120 N. Y. 614; Devlin v. Greenwich
Savings Bank (1891), 125 N. Y. 756.

On appeal from a reversal by the General Term upon the law
only, in an action tried by the court, the inquiry for the Court of
Appeals is whether, under the most favorable view of the evi-
dence upon which the trial court based its judgment, it can be
supported ; and for that purpose the evidence most favorable to
the party who prevailed on the trial must be accepted as true.
Cauda v. Totten (1898), 157 K Y. 281.

Presumption. — The presumption that the General Term pro-
ceeded upon questions of law (Hannigan v. Allen [1891], 127
E". Y. 639), applies to appeals from reversals only; it does not
preclude the Court of Appeals from presuming that an affirmance
was upon the facts. Cudahy v. Rhinehart (1892), 133 K". Y.
248, supra.

But the rule, that all facts warranted by the evidence and neces-
sary to support a judgment rendered on a decision in the short-
form will on appeal be presumed to have been found, is not ap-
plicable to that part of a judgment dismissing the complaint as
to one defendant, since as to that defendant the plaintiff has no
judgment to be supported by such a presumption. Deering v.
Schreyer (1902), 171 N. Y. 451.

The legal presumption is that the Genei-al Term, on appeal
from a judgment entered upon the report of a referee, considered
and reviewed the facts and to rebut this presumption, so as to
present the point on appeal to the Court of Appeals that the
General Term refused so to do, the refusal must clearly appear
by the record. Verplanck v. Member (1878), 74 ISF. Y. 620.

When, on appeal from a judgment and order of a General
Term reversing a judgment entered upon a decision of the court
on a trial without a jury, and granting a new trial, neither the
judgment nor the order states that the reversal was based upon
the facts, the Court of Appeals must presume that the reversal
was based upon the law ; and if no error of law appears upon the
record, the judgment and order must be reversed. Parker v. Day
(1898), 155 N. Y. 383.

Rule 8] Statement and Discussion of Facts. 127

Facts on appeal from nonsuit. — On appeal from a judgment
dismissing the complaint on the plaintiff's opening, every material
fact in issue will be resolved or found in his favor. Hoffman
House v. Foote (1902), 172 IS^. Y. 348.

On reviewing the judgment upon a nonsuit, the plaintiff is
entitled to the benefit of any fact that the jury could have found
and to all inferences Avarranted thereby. Thedford v. Herbert
(1909), 195 ]Sr. Y. 63.

Facts presumed found. — Where the decision of a trial court
or referee does not state the facts found (Code Oiv. Pro.,
§ 1022), and the judgment entered thereon has been affirmed by
the General Term, upon an appeal to the Court of Appeals, all
the facts warranted by the evidence and necessary to support the
judgment are presumed to have been found; and the Court of
Appeals in such case has no more control over the facts than
when specific findings have been made and affirmed. Amherst
College V. Eitch (1897), 151 K^. y. 282.

Finding luithout evidence. — An exception to a finding material
to the judgment, unsupported by any evidence, presents a ques-
tion of law, reviewable in the Court of Appeals (Pollock v. Pol-
lock [1877], 71 N. Y. 137; Sickles v. Flanagan [1879], 79
N. Y. 224; Israel v. Manhattan Ry. Co. [1899], 158 N. Y. 624) ;
and so it is for that court to determine as to whether there is any
such evidence (Hannigan v. Allen [1891], 127 K Y. 639,
mpra), although the order of reversal of the Greneral Terms fails
to state the reversal was upon the facts (Todd v. Nelson [1888],
109 ]Sr. Y. 316) ; but an exception is necessary to enable an ap-
pellant to present the question in the Court of Appeals that a
finding is unsupported by evidence. Turner v. Weston (1892),
133 N. Y. 650. So, also, an exception to a refusal to make a
finding established by undisputed proof presents a question of
law. Kennedy v. Porter (1888), 109 N. Y. 526; Bedlow v.
K Y. Dry Dock Co. (1889), 112 N. Y. 263. But a judgment
will not be reversed because a finding of fact is without evidence
to support it, unless it is a material fact and to some extent at
least gives support to the judgment. Wetmore v. Bruce (1-890),
118 ISr. Y. 319.

In order to sustain in the Court of Appeals a reversal by a
General Term of a decision of a referee upon the facts, it must

128 Court of Appeals Practice. [Rule 8

appear that his findings are against the weight of evidence, or
that the proofs so clearly preponderated in favor of a contrary
result that it can be said v^ith a reasonable degree of certainty
that his conclusions were erroneous. Sanger v. French (1898),
157 ISr. Y. 213.

Finding^ with some evidence. — If there is any evidence to sup-
port a finding sustained by the General Term, it is a ruling upon
a question of fact, to which no exception lies (Healy v. Glark
[1890], 120 ]Sr. Y. 642) ; it is conclusive and cannot be reviewed
by the Court of Appeals (Van Gelder v. Van Gelder [1879], 77
]Sr. Y. 446; Derham v. Lee [1882], 87 N. Y. 599; White v.
Benjamin [1896], 150 IST. Y. 258); and this applies to actions
in equity as well as to actions at law. Stilwell v. Mutual L. Ins.
Co. (1878), 72 N". Y. 385.

Finding conclusive. — When a finding upon a question of fact,
made upon conflicting testimony has been afiirmed by the General
Term, it is final and conclusive upon the parties and precludes any
review of that issue by the Court of Appeals. Eames Vacuum
Brake Co. v. Prosser (1898), 157 K Y. 289.

Confl.icting findings of fact. — Where findings of fact are irre-
concilably conflicting, the defeated party is entitled, in the Court
of Appeals, to the beneflt of those most favorable to him, in aid
of his exceptions to the conclusions of law (Bonnell v. Griswold
[1882], 89 ISr. Y. 122; Israel v. Manhattan Ey. Co. [1899], 158
N. Y. 624; Parsons v. Parker [1899], 159 JS^. Y. 16; iN'ickell v.
Tracy [1906], 184 ISF. Y. 386; Whalen v. Stuart [1909], 194
IST. Y. 495) ; but it is the duty of the court to reconcile the find-
ings, and give each some office to perform, and it is only when
this cannot, by a reasonable construction, be accomplished that
the above rule has effect (Eedfield v. Eedfield [18SS], 110 K Y.
071; Green v. Eoworth [1889], 113 K Y. 462; Wahl v. Barnum
[1889], 116 ISr. Y. 87; Traders' Nat. Bank v. Parker [1892],
130 ISr. Y. 415) ; and the prevailing party is entitled to the most
favorable construction of the findings to uphold the judgment.
Waugh V. Seaboard Bank (1889), 115 N. Y. 42.

Finding as to foreign law. — ^A finding as to the law of a foreign
State upon a given subject is a finding of fact, and if unani-
mously approved by the Appellate Division is conclusive upon
'the Court of Appeals. Spies v. Xational City Bank (1903),
174 N. Y. 222.

Kule 8] Statement and Discussion of Facts. 129

Weight of evidence. — ^A contention that a finding is against lie
weight of evidence cannot be considered by the Court of Appeals,
that court being confined to the question of law as to whether a
material finding of fact is without any evidence to support it.
Fritz V. Tompkins (1901), 168 N. Y. 524.

The short form of decision, allowed by section 1022 of the Code,
is to be treated as a general verdict, and when unanimously af-
firmed by the Appellate Division, the Court of Appeals is not per-
mitted to look into the record to determine whether there is any
evidence to support it. City of Niagara Falls v. IST. Y. C. &
H. R. R. R. Co. (1901), 168 N. Y. 610.

Where the order of the Appellate Division reversing a judg-
ment upon a short form of decision is silent as to its grounds, the
review by the Court of Appeals is confined to the question
whether in any view of the facts proved, the judgment can be
sustained. Dannhauser v. Wallenstein (1901), 169 N. Y. 199.

Findings of fact. — The Court of Appeals is confined to the
findings of fact as made and is not permitted to look into the
record for additional facts. S^een v. Henry (1903), 175 N".
Y. 268; Ransom v. Cutting (1907), 188 K Y. M7.

Duty to harmonize findings. — It is the duty of the Court of
Appeals to harmonize findings of fact so as to arrive at the real
intention, if it can be done; and an intention to reverse a delib-
erate finding will not be imputed because of collateral findings in
which an inadvertent or immaterial expression is used. Bennett
V. Bates (1884), 94 K Y. 354.

Omission to find. — An. omission to find facts claimed by the
unsuccessful party to be warranted by the evidence can only be
taken advantage of by an exception to a refusal to so find upon
request duly made as required by the Code. Travis v. Travis
(1890), 122 N. Y. 449. The Court of Appeals cannot look into
the evidence for facts to reverse the judgment, except to see
whether there is any evidence to support a finding, although it
may to sustain it. Ostrander v. Hart (1892), 180 N. Y. 406.
No fact can be considered by the Court of Appeals for the purpose
of reversing a judgment, unless it appears in the findings or is
requested to be found upon uncontroverted evidence. Koehler
V. Hughes (1896), 148 N. Y. 507. But where the trial court,
instead of finding either way upon the crucial question of fact in

130 CouET OF Appeals Practice. [Rule S

the case, simply found the evidence as given by the witnesses upon
that question and then drew a conclusion which, upon the record
as it stands, is unsupported by any finding of fact, the judgment
entered thereon must be reversed. Dougherty v. Lion Fire Ins.
Co. (1905), 183 ]Sr. Y. 302.

Assumption of fact. — While in some cases the Court of Ap-
peals may assume the existence of any needed fact warranted by
the evidence in order to affirm a judgment, this cannot be done
when the evidence in regard to it is conflicting and no finding on
such fact has been requested. Hollister v. Mott (1892), 132
N. Y. 18 ; nor can it assume a fact, or amplify the findings of
fact in order to reverse a judgment. Ostrom v. Greene (1900),
161 N. Y. 353; Hilton v. Ernst (1900), 161 IST. Y. 226; Hunt
V. Hunt (1902), 171 N. Y. 396.

Inference. — In Clemens v. Supreme Assembly Royal Society
of G-ood Fellows (1892), 131 K Y. 485, where the judgment
below was not rendered on the ground of fraud and the evidence
thereof was conflicting, the Court of Appeals refused to draw the
inference of fraud in order to support the judgment.

Facts on review of directed verdict. — On appeal from an af-
flrmance of a judgment entered upon a verdict directed by the
court, where each party had requested the direction of a verdict
in his favor and neither asked to go to the jury, all the contro-
verted facts and all inferable facts in support of the judgment wiU
be deemed conclusively established in favor of the party for whom
the verdict was directed. Smith v. Weston (1899), 159 N. Y.
194.

But where a verdict was directed by the court, although the
imsuccessful party asked to go to the jury, all the facts war-
ranted by the evidence must be assumed for the purpose of an
appeal by the unsuccessful party, as settled in his favor. Bank
of Monongahela Valley v. Weston (1899), 159 K Y. 201;
Becker v. City of N. Y. (190.2), 170 N. Y. 219.

Reversal of reversal on facts. — ^A reversal by the General Term
upon the facts cannot be reversed by the Court of Appeals, unless
it appears that there was no evidence to sustain it or that there
was such a preponderance of evidence in favor of the conclusions
of the trial court that it would have constituted error of law for
it to have found otherwise. ISTostrand v. Knight (1890), 123

E,\ile 8] Statement and Discussion of Facts. 131

N. Y. 614; Phoenix Iron Co. v. Vessel " Hopatcong " (1891),
127 K Y. 206.

(See under Rule II, as to amendment of General Term order
so as to show reversal on question of fact; and under Rule IV,
that opinion of General Term cannot be looked to, to learn that
reversal was on a question of fact.)

On appeal from Appellate Division.

Conclusiveness of findings. — Findings of fact are conclusive
upon the Court of Appeals where an order of reversal in the
Appellate Division was not made upon the facts, but upon the
law. Smith v. Syracuse Improvement Co. (1900), 161 N". Y.
484.

Order of reversal.— An order of the Appellate Division revers-
ing upon the law and facts a judgment entered upon a verdict
and an order denying a motion for a new trial, and awarding a
new trial, is not reviewable by the Court of Appeals, and in no
case tried before a jury in which a motion for a new trial has
been made on the ground that the verdict is against the evidence
can that court entertain an appeal from an order of reversal un-
less it affirmatively appears that the Appellate Division has af-
firmed the facts. Allen v. Corn Exchange Bank (1905), 181
N. Y. 278 (overruling Reich v. Dyer, 180 N. Y. 107).

Action for injunction. — Upon an appeal from an order revers-
ing a judgment dismissing the complaint upon the merits in an
action for an injunction, the Court of Appeals has power to re-
view the action of the trial court where the facts proved raise
reviewable questions of law ; and it is not precluded therefrom by
a statement in the order that the reversal was upon the law and
the facts, where an examination of the record shows that there
are no disputed facts and no conflicting inferences to be drawn
from them. Penrhyn Slate Co. v. Granville Elec. L. & P. Co.
(190i5), 181 'S. Y. 80.

Question of fact. — The insertion in an order of reversal that
it is upon the facts does not raise a question of fact unless an
examination of the record confirms it. Penrhyn Slate Co. v.
Granville Elec. L. & P. Co. (1905), 181 N. Y. 80.

Where, on appeal from a reversal by the Appellate Division in
an action tried by the court, it appears that the decision of the

132 Court of Appeals Practice. [Kule 8

trial court did not separately state the facts found, and the de-
cision of the Appellate Division does not state that the reversal
was upon a question of fact, it must be presumed that all the facta
warranted by the evidence and necessary to support the judgment
were found by the trial court, and that the reversal by the Appel-
late Division was based wholly upon errors of law, the facts stand-
ing approved by that court. People v. Adirondack E-y. Co.
(1899), 160 N. Y. 225.

Order granting new trial solely upon questions of law. — Where
a new trial is granted by the Appellate Division upon a question
of fact, the Court of Appeals has no power to review even rulings
duly excepted to, provided there was a question of fact; but if it
is granted solely upon questions of law, that is, in the language
of the Constitution, " on exceptions," that court may review the
questions of law raised by exceptions, and if it is found that no
exception was well taken, the order must be reversed and the
judgment reinstated. Vollkommer v. Cody (1904), 177 E". Y.
124; Cooper v. K Y., 0. & W. Ey. Co. (1904), 180 N. Y. 12.

Where a judgment of the trial term was reversed by the Ap-
pellate Division on " questions of law only," and none of the
exceptions presents reversible error, the order of the Appellate
Division must be reversed and judgment of the trial term affirmed.
Eeehil v. Fraas (1909), 197 ~S. Y. 64.

Evidence supporting verdict. — The unanimous affirmance by
the Appellate Division of a judgment entered upon a verdict di-
rected by the court on uncontroverted evidence, does not preclude
the Court of Appeals from considering whether the evidence jus-
tified the direction of the verdict. Second ISTat. Bank v. Weston
(1902), 172 K Y. 250.

But after unanimous affirmance by the Appellate Division of
a judgment entered upon a verdict not directed by the court, the
question whether the verdict is supported by any evidence is not
open to review by the Court of Appeals. Bank of Monongahela
Valley v. Weston (1902), 172 IST. Y. 259.

Review of equity case. — The fact that issues in the action were
framed and submitted to the jury does not prevent the application
of the rule that in an equity case the Court of Appeals will con-
sider no exceptions either to alleged errors in the charge or to the
rulings which do not affect the merits, and after the adoption of

Kiale 8] Statement and Discussion of Facts. 133

the findings by the trial court all proceedings, includiiig the prac-
tice upon review, are the same as if no jury had been called.
Townsend v. Bell (1901), 167 K Y. 462.

Where, on appeal from an order reversing a judgment granted
at Special Term in an equity action, the order of reversal is
silent as to the grounds on which it is based, the facts must be
taken as found, and the case examined upon the assumption that
the Appellate Division predicated its reversal solely upon ques-
tions of law; and the reversal cannot be sustained unless the
legal conclusion adopted by the trial court is without support in
the facts found. Ball v. Broadway Bazaar (1909), 194 IST.
Y. 429.

Reversal of surrogate's decree. — ■ Where a surrogate's decree is
reversed by the Appellate Division by an order which does not
disclose that the reversal is upon a question of fact it must be
presumed that it is upon the law and, where the surrogate's de-
cision does not separately state the facts found, that all the facts
warranted by the evidence are necessary to support the decree
are found by him; and, if the record discloses no error of law,
the reversal must be reversed and the decree of the surrogate af-
firmed. Matter of Keefe (1900), 164 N. Y. 352; Matter of
Barefield (1904), 117 E". Y. 387.

Finding as to foreign laiv. — A referee's finding as to the law
of another State when unanimously affirmed by the Appellate Di-
vision, cannot be reviewed by the Court of Appeals, since it is a
finding of fact. Genet v. Del. & Hud. Canal Co. (1900), 163
K Y. 173.

Questions of law on appeal from reversal. — On appeal from a
reversal by the Appellate Division in an action tried by the
court, presumed, by force of section 1338 of the Code, not to
have been based on a question of fact, the question whether a
fact found has the support of any evidence which, according to
any reasonable view, warranted the trial judge in finding it,
is a question of law for the Court of Appeals. Gannon v.
McGuire (1899), 160 IST. Y. 476.

Reversal not stated to he upon question of fact. — When, on
appeal from a reversal by the Appellate Division in an action
tried by a referee, it does not clearly appear in the body of the
judgment or order appealed from that the reversal was upon a

134 OouET OF Appeals Peactice. [Eule 8

question of fact, the Court of Appeals, by force of section 1338
of the Code, must treat the decision of the Appellate Division as
one not interfering with the facts found on the trial. Lannon
T. Lynch (1899), 160 N. Y. 483.

Reversal upon questions of law must show examination of ques-
tions of fact. — An order of the Appellate Division, reversing a
judgment entered upon a verdict solely upon specified questions
of law and granting a new trial, which recites that that court
examined the questions of fact as to the other issues in the case
and found no error therein, but fails to show that the questions
of fact as to the issues specified were examined and the verdict
thereon approved, is not appealable to the Court of Appeals.
Albring v. K Y. C. & H. R. E. Co. (l&Ol), 166 IST. Y. 287.

The provision of section 1337, that where the justices of the
Appellate Division are divided as to whether there is evidence
supporting or tending to support a finding or verdict not directed
by the court a question for review is presented, in no way relieves
the party who asserts it from the burden of establishing the
unanimity of the decision. Laidlaw v. Sage (1899), 158 N.
Y. 73.

An order of the Appellate Division reversing a judgment upon
a verdict " upon questions of law only, the facts having been
examined and on error found therein," is appealable and the
Court of Appeals may review any of the questions of law that
were before the Appellate Division. Albring v. IST. Y. C. &
H. E. R. E. Co. (1903), 174 N. Y. 17&; Serano v. K Y. C. &
H. E. E. Co. (1907), 188 K Y. 156.

Review of sufficiency of evidence. — Upon an appeal from a
nonunanimous affirmance by the Appellate Division the record
may be examined in order to ascertain whether there is any
evidence which, upon any reasonable view, will sustain the ver-
dict, and when the undisputed facts in connection with the testi-
mony of the plaintiff, when supported by every inference that
can be drawn therefrom, do not warrant a verdict in his favor, a
question of law arises reviewable by the Court of Appeals.
Jerome v. Queen City Cycle Co. (1900), 163 IST. Y. 351.

Only questions raised by the exceptions to the charge of the
trial judge as made, or to his refusal to charge as requested, are
presented by an appeal from a judgment entered upon a verdict

Rule 8] Statement and Discussion of Facts. 135

unanimously affirmed by the Appellate Division; the sufficiency
of the evidence to support a party's theory of the facts cannot be
considered. Eider v. Syracuse R T. Ry. Co. (1902), lYl JST.
Y. 139.

Reversal upon facts. — ^ Where the Appellate Division reverses
upon the facts and grants a new trial, the Court of Appeals has
no jurisdiction to review the order, and when, upon appeal from
a reversal stated to be upon the facts, an inspection of the record
shows that a question of fact was involved in the case, the appeal
must be dismissed. Bini v. Smith (1899), 161 IST. T. 120.

The Court of Appeals has no jurisdiction to review an order
of the Appellate Division reversing a judgment on the law and
the facts and granting a new trial if there is any question either
of fact, or of credibility of witnesses involved. That court can
only review a reversal by the Appellate Division upon the law and
the facts and the granting of a new trial, in a case where a party
is entitled, as a matter of law, to a direction of a verdict in his
favor. Reich v. Dyer (1904), 180 IS"^. Y. 107; and see Allen v.
Corn Exchange Bank (1905), 181 N. Y. 278.

Questions of law on appeal from reversal on law. — On appeal
from a judgment and order of the Appellate Division reversing
a judgment entered upon a report of a referee or a determination
in the trial court and ordering a new trial, without stating that
the reversal was upon the facts, and hence presumed to have
been upon the law, the Court of Appeals can consider only three
questions of law, namely: whether a material error was com-
mitted in receiving or rejecting evidence ; whether the conclusion
of law is supported by the facts found ; and whether any material
finding of fact is without any evidence to support it. ISTational
Harrow Co. v. Bement (1900), 163 N. Y. 505.

Where the unanimous order of the Appellate Division, revers-
ing a judgment rendered at Special Term on questions of law
only, affirmatively declares that the facts have been examined and
no error found therein, the facts found by the trial court are con-
elusive on the Court of Appeals and the only question that can
be determined by the latter court is whether those facts justified
or required a reversal of the judgment rendered thereon by the
Special Term. American Guild v. Damon (1906), 186 N.
Y. 360.

136 Court of Appeals Practice. [Rule S

Misnomer of question involved. — When an Appellate Division
order reversing a judgment and granting a new trial states that
the reversal was upon questions of law only, the facts having
been examined and no error found therein, the Court of Appeals
will reverse the reversal and affirm the judgment of the trial
court, when it appears that the question involved was really one
of fact and not of law. Clark v. IST. Y. C. &. H. E. R. E. Co.
(1&08), 191 K Y. 416.

Reviewable order of reversal. — ^An appeal from an order of
the Appellate Division reversing a judgment upon questions of
fact and law and ordering a new trial is reviewable in the Court
of Appeals, when there is no controverted fact upon which the
decision of the question of law depends and there are no questions
of fact to be resettled upon a new trial of the case to affect the
question of law involved. Erie E. E. Co. v. Steward (1902),
170 ]Sr. Y. 172.

An order of the Appellate Division, reversing a judgment of
the Special Term and granting a new trial, which does not state
that the reversal was upon the facts, must be presumed to have
been made on questions of law; and where the record discloses
no errors in the reception or rejection of evidence, or in material
findings of fact unsupported by any evidence or in conclusions of
law not sustained by the facts found, it must be reversed, and the
judgment of the Special Term affirmed. Neuman v. W. Y. Mut.
S. & L. Assn. (19OO0, 164 IS^. Y. 248; Dunlap Co. v. Young
(190-3), 174 ]Sr. Y. 327.

To sustain, in the Court of Appeals, the reversal by the Appel-
late Division of the judgment below, the respondent must show
that some error of law is involved in such judgment, where the
order does not state that the reversal is upon the facts. Metealf
V. Moses (1900), 161 N. Y. 587.

An order of reversal of the Appellate Division, stating that
the reversal was upon the facts and the law, is conclusive upon
the Court of Appeals that a question of fact is actually involved,
except when the record discloses that there are neither facts, nor
inferences from conceded facts, in opposition to the decision of
the trial court. Livingston v. City of Albany (1900), 161 N.
Y. 602.

Rule 8] Statemeistt and Discussion of Facts. 137

The Court of Appeals has no jurisdiction to review an order
of reversal of the Appellate Division, stating that the reversal was
upon the facts and the law, when the record discloses any con-
troversy whatever as to material facts. Livingston v. City of
Albany (1900), 161 K Y. 602.

Section 1338 of the Code has no application to a judgment
entered upon a verdict, and the Court of Appeals has no juris-
diction to review an order of the Appellate Division reversing a
judgment entered upon a special verdict and granting a new trial,
when it does not appear that the facts as found by the verdict
were afErmed or approved by the Appellate Division. Schryer
V. Fenton (1900), 162 IST. Y. 444.

An order of the Appellate Division, reversing a decision on a
motion to reduce an award for alimony, must be presumed by the
Court of Appeals, under section 1338 of the Code, to have been
made upon the law, where the order does not contain any state-
ment that the reversal was upon the facts. Wetmore v. Wetmore
(1900), 162 E". Y. 503.

Question of fact possibly involved. — An appeal from an order
of the Appellate Division of reversal upon the law and the facts
will be dismissed where it appears from the record that a question
of fact might be involved in a decision upon the merits. India
Wharf Brewing Co. v. Brooklyn Wharf Co. (1903), 173 N.
Y. 167.

Presumption as to reversal. — The Court of Appeals is com-
pelled to presume that a judgment was not reversed by the Appel-
late Division upon a question of fact, when the order of reversal
is silent upon the subject, although the opinion of the Appellate
Division shows an intention to reverse upon the facts as well as
the law. Spence v. Ham (1900), 163 K Y. 220.

Reversal upon law and facts. — A judgment declared in an
order of the Appellate Division to have been reversed upon the
law and the facts, is reviewable as to the law, by the Court of
Appeals, where there is no dispute as to the facts and they are
not open to different inferences. O'Brien v. East River Bridge
Co. (1900), 161 K Y. 539.

Presumption as to reversal upon questions of law. — A reversal
of a judgment of the trial court by the Appellate Division must
be presumed under section 1338 to have been made upon questions

138 Court of Appeals Practice. [Rule 8

of law, when the order of reversal contains no statement that the
jvidgment was reversed upon the facts. Van Beuren v. Wither-
spoon (1900), 164 N. Y. 368.

Where an order of the Appellate Division, in reversing a judg-
ment of the Special Term and granting a new trial, fails to state
that the reversal was upon the facts, the Court of Appeals is com-
pelled to assume that the judgment was reversed for errors of law
alone, although a reference to the opinion indicates that the
contrary is the fact. Hinckel v. Stevens (1900), 165 N. Y. 171.

The form of an order of the Appellate Division reversing a
judgment and granting a new trial is not material with respect
to showing whether or not the reversal was upon the facts, where
there are no disputed questions of fact. Buffalo & L. Land Co.
V. Bellevue L. & I. Co. (1901), 165 IST. Y. 247.

Findings conclusive. — It will be presumed that the Appellate
Division reversed a judgment of the Special Term upon the law
where its order does not state that the reversal was upon a ques-
tion of fact, and in such case the Court of Appeals will consider
whether the findings are supported by the evidence, and if the
record so discloses they are conclusive upon it. Village of
Champlain v. McCrea (1901), 165 W. Y. 264.

Finding in certiorari proceeding. — If a finding of fact by the
Special Term in certiorari proceedings to review an assessment
has support in the evidence, it cannot be reviewed by the Court
of Appeals upon appeal from an order of the Appellate Division
reversing the order of the Special Term upon the law and not
upon the facts. People ex rel. Manhattan Ry. Co. v. Barker
(1901), 165 K Y. 305.

Reversal in certiorari proceeding. — The Court of Appeals, on
appeal from an order of the Appellate Division reversing a final
order of the Special Term in a proceeding by certiorari to review
an assessment, which involved a trial of an issue of fact, is re-
quired by sections 1338, 1861 of the Code, to assume that the
reversal was not upon the facts, but upon some error of law, un-
less the contrary clearly appears in the record body of the order
appealed from. People ex rel. Manhattan Ry. Co. v. Barker
(1901), 165 K Y. 305.

It seems that section 1338 does not apply to the reversal, on
certiorari, of the determination of a town board on a claim pre-

E-iile 8] Statement and Discussion of Facts. 139

sented to it for audit, since such a board is not a court, nor are
its members referees. People ex rel. Village of Brockport v.
Sutphin (1901), 166 N. Y. 163.

An order of the Appellate Division reversing upon the law and
the facts where questions of law are involved which that court
has the power to review, is not reviewable by the Court of Ap-
peals, and, although there, may be an apparent conflict between
the order and the opinion below, the order is controlling. Spies
v. Lockwood (1901), 165 K Y. 481.

Unanimous reversal. — Upon an appeal from an unanimous de-
cision of the Appellate Division, reversing on certiorari the de-
termination of a town board disallowing a claim presented for
audit, when the record is silent as to the grounds of reversal the
Court of Appeals is simply required to assume, under section
1338 of the Code, that the reversal was not founded upon a ques-
tion of fact so as to enable it to review the questions of law, and
is not required to assume that the Appellate Division actually de-
cided that there was evidence to support the facts found, and so
be deprived of jurisdiction. People ex rel. Village of Brockport
V. Sutphin (1901), 166 IST. Y. 163.

The rule that upon an appeal from an order of the Appellate
Division reversing a judgment upon the facts and granting a new
trial, the Court of Appeals will presume that the reversal was not
upon the facts, unless the contrary clearly appears in the body
of the order, is or ought to be familiar to counsel, and the failure
of the respondent to have the order truly express the decision of
the Appellate Division is at his peril. Queen v. Weaver (1901),
166 K Y. 39«.

Where such an appeal has been taken, although it is apparent
that the reversal was upon the facts, if the order contains no
statement to that effect it will be presumed to have been upon the
law, and if the record discloses no errors of law, the reversal,
although properly directed, cannot be sustained and the judgment
of the trial court must be affirmed. Id.

Enibodiment of opinion in order of reversal. — An order of the
Appellate Division reversing a judgment and granting a new trial
upon the grounds stated in the opinion " delivered herein and
which is hereby made a part of the order," cannot be considered
a statement that the reversal was upon the facts, and is not a com-

140 CoiTET OF Appeals Peactice. [Eule 8

pliance with section 1338 of the 'Code, especially where the
opinion is susceptible of different constructions, and it is a matter
of dou'bt whether the reversal was upon the law or the facts, or
both. The reversal must, therefore, be presumed to have been
upon questions of law only. Townsend v. Bell (1901), 167 IST. Y.
462.

Presumption of question of law. — Where, in an action tried by
the court or a referee, the decision did not state separately the
facts found (Code Civ. Pro., § 1022), whether the Appellate
Division reverses and orders a new trial, or grants a final judg-
ment to either party, if its order is silent as to its grounds section
1338 controls and requires the presumption that the reversal was
upon a question of law. Bomeisler v. Forster (1897), 154 IST. Y.
229.

Application of presumption. — Where, on reversal of a judg-
ment in an action tried by the court, the order of the Appellate
Division states that one of the justices concurred on the ground
that the judgment was against the weight of evidence, the other
justices not placing their determination upon that ground, the
Court of Appeals is bound to presume that the judgment was not
reversed upon a question of fact. Lenox v. Lenox (1909), 195
]Sr. Y. 359.

When appeal from reversal on facts not dismissed; judgrnent
absolute. — Where, upon appeal to the Court of Appeals from an
order of the Appellate Division reversing a judgment upon the
facts or on the law and the facts and granting a new trial, it is
found that questions of fact are involved, upon which the reversal
could properly have been based, the appeal will not ordinarily be
dismissed, but the order of reversal will be affirmed and judgment
absolute awarded against the appellant upon the stipulation with
costs in all courts, since it is necessary to restrain its practice of
taking such reckless appeals by the most repressive form of judg-
ment. Matter of Mosher (1906), 185 IST. Y. 435; Van Slyck v.
Woodruff (1908), 192 N. Y. 547; Tousey v. Hastings (1909),
194 K Y. 79.

Appeal from reversal of judgment on verdict. — An appeal does
not lie to the Court of Appeals from a judgment of the Appellate
Division reversing a judgment and order and granting a new trial,
when the appeal to the Appellate Division was not only from a

Eule 8] Statement and Discussion op Facts. 141

judgment entered upon the verdict of a jury, but also from an
order denying a motion for a new trial upon the ground that the
verdict was against the weight of evidence, and the order of re-
versal does not state whether it was upon the law or facts, or
both. Henavie v. N. Y. C. & H. E. E. E. Co. (IS&I), 154 N. Y.
278.

Where, in the trial of an action before a jury, after the grant-
ing of a motion dismissing the complaint at the close of plaintiff's
case, to which no exception was taken, a motion for a new trial,
made without specifying any grounds, was denied, but no order
was entered and no foundation laid for an appeal therefrom, the
Appellate Division, upon an appeal from the judgment dismissing
the complaint, has no power to review or reverse upon the facts,
and where there are no exceptions taken to rulings relating to the
admission or exclusion of evidence that would authorize the re-
versal of the judgment of the trial court, the Court of Appeals
must reverse the order of the Appellate Division and afErm the
judgment of the trial court. Collier v. Collins (1902), 172
JSr. Y. 99.

The substitution of the words " a determination in the trial
court " for the words " a decision of the court upon a trial with-
out a jury," in section 1338 of the Code of Civil Procedure, by
the amendment of 1895, did not extend the right of review by the
Court of Appeals of a reversal of a judgment entered upon the
verdict of a jury. Henavie v. JST. Y. C. & H. E. E. E. Co. (1897),
154 K Y. 278.

Where an order states that reversal is upon law and facts, if
there is no dispute as to the facts, judgment is reviewable upon
questions of law. O'Brien v. East Eiver Bridge Co., 161 ]S[. Y.
539 ; Buffalo & L. S. Co. v. Bellevue L. & I. Co., 165 W. Y. 247.

(See, also, under Eule I, as to the jurisdiction of the Court of
Appeals as affected by the amendments to the Constitution and to
section 191 of the Code of Civil Procedure, restricting the court
to the review of questions of law, and providing that no unani-
mous decision of the Appellate Division of the Supreme Court
that there is evidence supporting or tending to sustain a finding
of fact or a verdict not directed by the court, shall be reviewed
by the Court of Appeals.)

142 CoTJKT OF Appeals Peactice. [Eule 8

Review of facts in capital cases.

The provision of section 528 of the Code of Criminal Pro-
cedure, that —

wEen the judgment is of death, the Court of Appeals may order a new trial,
if it be satisfied that the verdict was against the weight of evidence or
against law, or that justice requires a new trial, whether any exception
shall have been taken or not in the court below —

requires the Court of Appeals to review the facts in every capital
case, and to determine whether, upon all the evidence, there is, in
its opinion, good and sufficient reason for setting aside the verdict
of the jury and granting a new trial. People v. Driscoll (1887),
107 N. Y. 414.

The above provision does not authorize a review of findings of
fact of a jury, founded on sufficient evidence, or a reversal simply
because of a difference of opinion on the facts between the court
and the jury; it simply invests the court with power to order a
new trial, where, upon a consideration of the whole case, it is
manifest injustice has been done, although the question has not
been properly raised by exceptions. People v. Kelly (18'89), 113
K Y. 647.

The Court of Appeals will not, under the authority conferred
\ipon it by section 528, interfere with a verdict supported by
sufficient evidence, unless it reaches the conclusion on the whole
case that there is a strong probability that injustice has been done.
People V. Tice (1892), 131 W. Y. 651; People v. Rice (1899),
159 N. Y. 400.

Where the evidence is sufficient to support the verdict, the
Court of Appeals has, under the statute, no power to reverse a
judgment of death unless it appears that error was committed or
injustice done. People v. Filipeli (1903), 173 N. Y. 509.

In exercising the jurisdiction conferred by section 528 of the
Criminal Code, the Court of Appeals is to be governed by the
practice regulating the review of questions of fact on appeal to
the Supreme 'Court, and if there is a fair conflict in the evidence,
or if different inferences may be drawn from it, the determination
of the jury will not be interfered with, unless it is clearly against
the weight of evidence, or appears to have been influenced by
passion, prejudice, mistake or corruption. The fact that there is
in the judgment of the court a rational doubt of the guilt of the

Rule 8] Statement and Discussion of Facts. 143

defendant, is not a sufficient ground for a reversal. People v.
Taylor (1893), 138 N. Y. 398.

On the review of a conviction of murder in the first degree,
where the defense of insanity was interposed, the verdict is con-
clusive upon that issue, in the absence of elements showing that
the verdict was against the weight of evidence, or that it was in-
fluenced by some mistake, error or prejudice. People v. Braun
(1899), 158 K Y. 558.

On appeal from a conviction on evidence from which conflict-
ing inferences as to premeditation and deliberation may be drawn,
a new trial will not be granted by the Court of Appeals, unless it
reaches the conclusion that justice has not been done. People v.
Schmidt (1901), 168 N. Y. 5&8.

The Court of Appeals, in exercising its power in a capital case,
to review the facts and grant a new trial when satisfied that the
accused has not had a fair trial, or when injustice has been done,
must observe the rules and principles which apply to all tribunals
possessing appellate jurisdiction. People v. Kerrigan (1895),
147 IST. Y. 210. And, when the jury has once determined, upon
evidence which is sufficient, even though capable of diverse or
opposing inferences, the questions of fact, the Court of Appeals
has no more right than the trial court to substitute its own judg-
ment in the place of that of the jury, or to usurp its legitimate
functions. Id.; People v. Sutherland (189T), 154 N. Y. 345.

In determining whether a new trial should be granted in a
capital case, it is not the province of the Court of Appeals to re-
view and determine controverted questions of fact arising upon
conflicting evidence, but the jury is the ultimate tribunal in such
a case, and with its decision the court may not interfere, unless it
reaches the conclusion that injustice has probably been done.
People V. Place (1899), 157 N. Y. 584; People v. Kennedy
(1899), 159 K Y. 346.

The power conferred upon the Court of Appeals to order new
trials on the review of capital cases is not called into exercise by
the appearance of some error in the conduct of the trial, which no
exception pointed out, unless the substantial rights of the accused
can be seen to have been affected by it, and, therefore, justice de-
mands another trial. People v. Hoch (1896), 150 N. Y. 291.
But while this power should be cautiously exercised, it should be

144 Court of Appeals Peactioe. [Rule 8

used whenever the court is satisfied from the record that justice
requires a new trial. People v. Corey (1898), 157 IST. Y. 332;
and an exception is always necessary to raise a pure question of
law. People v. McDonald (1899), 159 K Y. 309; People v.
Tobin (1903), 176 K Y. 278; People y. Eodawald (1904), 177
N. Y. 408.

Section 528 of the Code of Criminal Procedure was not in-
tended to confer upon the 'Court of Appeals the right to disregard
any valid exception taken by a defendant, or to abridge any right
he formerly possessed in reviewing the rulings of a trial court;
but its purpose was to throw additional safeguards around the de-
fendant. People V. Corey (1896), 148 N. Y. 476.

The court may exercise the power under section 528 where de-
fendant has suffered gross injustice by the admission of incom-
petent evidence, even though defendant's counsel made no ob-
jection thereto. People v. Kennedy (1900), 164 Iv". Y. 449.

Connection with section 542 of Code of Criminal Procedure. —
The power of the Court of Appeals to grant new trials in capital
cases must be exercised in conformity with the statutory pro-
vision (Code Crim. Pro., § 542), which requires that judgment
upon an appeal must be rendered without regard to technical
errors or defects or to exceptions which do not affect the sub-
stantial rights of the parties. People v. Youngs (1896), 151
K Y. 210; People v. Constantino (1897), 153 K Y. 24; People
V. Silverman (1905), 181 N. Y. 235; People v. Wenzell (1907),
189 ]Sr. Y. 275.

Homicide of lower grade than murder in first degree. — When
the trial of an indictment for murder results in a verdict for a
lower grade of homicide than murder in the first degree, and, con-
sequently, the judgment is not of death, the Court of Appeals has
no power to review the facts, but its jurisdiction is confined to
questions of law raised by exception. People v. Ledwon (1897),
153 N. Y. 10.

Only those facts should be mentioned which are either spe-
cifically found or are presumed to have been found according to
the rules governing appeals to the Court of Appeals ; except, first,
when there is a reversal by the court below; second, when there
is an affirmance, but it is not unammo^^s, and it is claimed that
there is no evidence whatever to support a fact which is necessary

Kule &] Ceiminal Causes. 145

to sustain the judgment. Stevens v. O'Neill (1902), 169 N. Y.
375.

Necessity of exceptions. — It is only when the verdict was
against the weight of evidence, or against law, or justice requires
a new trial, that the Court of Appeals is permitted to reverse in
the absence of a valid exception; and exceptions are still neces-
sary, notwithstanding the statute to fully protect the rights, and
especially the technical rights, of a person on trial, even for a
capital offense. People v. Tohin (1903), 176 ¥. Y. 278; People
v. Ennis, Id. 289.

Judges absent from argument.

The authority for a judge of the Court of Appeals to consider
and take part in the decision of a cause argued in his absence is
implied by the exception of the judges of that court from the
general prohibition contained in the following clause of the
Judiciary Law, section 22, formerly contained in section 46 of
the Code of Civil Procedure :

A judge other than a judge of the Court of Appeals, or of the Appellate
Division of the Supreme Court, shall not decide, or take part in the
decision of a question which was argued orally in the court, when he was
not present ajid sitting therein as a judge.

For an instance of such submission to a judge who was absent
from the argument, see Baker v. Drake (1876), 66 I\". Y. 518.

RULE IX.

Criminal Causes.

Appeals in criminal cases brought after making np the
calendar, or too late to be placed on said calendar, may be
put upon tbe calendar at any time, and brought on for a
heariag as preferred causes, upon a notice of ten days ; and
it shall be the duty of the clerk to place such causes on the
calendar for the day for which they shaU be noticed or upon
■which the cause shall be ordered by the court, or stipulated
by the parties, to be heard.

Code of Criminal Procedure.

§ 336. An appeal to the Court of Appeals may, in the same manner, (as
prescribed by § 535, i. e. on ten days' notice) be brought to argument by

146 CotTET OF Appeals Practice. [Rule 10

either party, on any day in term, and where the judgment appealed from is
of death, the appeal must be brought on for argument within six months
from the taking of such appeal, unless the court, for good cause shown,
shall enlarge the time for tiiat purpose. (Amended by Laws 1902, chap. 369.)
(See, also, § 790, Code of Civil Proceduie, under Rule XIV.)

Unreasonable delay in argument of capital case. — A delay of
nearly two years in presenting for argument an appeal from a
judgment convicting the defendant of murder, in the first degree
was held unreasonable in People v. Friola (1903), 174 N. Y.
324. (Judgment of conviction was rendered April 29, 1901,
prior to enactment of ch. 369 of 1902.)

The refusal or omission of the official stenographer to furnish
the minutes of the trial, without adequate excuse, constitutes good
cause for discipline, but does not call for the enlargement of the
time for bringing the appeal on for argument beyond the time
which it appears, on the application, will then be required to
furnish the minutes and prepare and print the case. People v.
Hill (1909), 197 ]Sr. Y. 532.

Day calendar.

To insure a criminal cause being placed on the day calendar
for a certain day, it is necessary, where the day has not been
fixed by an order of the court, that a notice of argument (with
proof or admission of service) or a stipulation, containing a
statement that the cause is a criminal cause, be filed with the
clerk before the day calendar for the day named for hearing, in
the notice or stipulation, is made up. When a criminal cause is
put on the day calendar, its preference is exhausted and it can-
not be moved otit of its order.

EULE X.

Submission and Reservation of Causes.

Causes will not be received upon submission until reached
in the regular call of the calendar.

No reservation will be made of any of the first eight
causes, unless on account of sickness, or an engagement
elsewhere in the actual trial or argument of another cause
commenced before the term of this court, or other inevi-

Rule 10] Submission- and Eeservation of Causes. 147

table necessity, to be shown by affidavit. Other causes
may be reserved upon reasonable cause shown, or by stipu-
lation of parties filed with the clerk ; but no cause shall be
so reserved by stipulation after the same has been placed
upon the day calendar.

Causes reserved for a day certain by stipulation, when
in order to be called, have priority among each other ac-
cording to the time of filing the stipulations with the clerk,
and shall follow next in order the undisposed of causes of
the calendar for the day previous. Default may be taken
in them.*

No reserved cause, whether reserved generally or for a
particular day, will be called before its number is reached
on the regular call of the calendar.

Submission of causes.

Causes, when reached on the day calendar, may be submitted
without oral argument, by both parties, or may be argued by one
party and submitted by the other. If it is intended to submit,
the clerk should be informed of the fact ; and each party who in-
tends to submit must see to it that the requisite copies of his
points (and, on the part of the appellant, of the causes also) have
been duly filed with the clerk and served, as prescribed by
Rule VII.

Reservation of causes.

Control of calendar. — The court has at all times control over
its calendar. Matter of Reynolds (1879), 77 N. Y. 631; Crain
V. Rowley (Ct. App. 1849), 4 How. Prae. 79.

The Chief Judge has control of the calendar. All proposi-
tions in reference to the arrangement or disposition of causes
should be addressed to him. ( See " Miscellaneous Practice, not
included in the RuIqs," 7 How. Prac. 240.)

Reservation hy stipulation; effect of. — By stipulating to set a
cause down for a day certain, parties insure that the cause will

* The additional provision that " they will, if passed, go down upon future
calendars, as if passed in the regular order," is stricken out by the amend-
ments of 1906.

14S CoTJET OF Appeals Peactice. [Rule 11

not be put on the day calendar before the day named. If the day
calendar for that day is filled, up to the limit of eight causes, with
causes having priority over a given stipulated cause, such cause
will be placed on the first day calendar thereafter on which it can
come in its order of priority.

After day calendar made up. — By force of the provision of
this rule, that " no cause shall be reserved by stipulation after the
same has been placed upon the day calendar," the clerk is without
power to change the day calendar after it has been once regularly
made up by him (as to when the day calendar is made up, see
under Rule XII) ; and a stipulation of reservation received by
the clerk after the day calendar has been made up is too late to
affect any cause on such day calendar, but the cause will retain
its place and must be disposed of if reached on the day for which
the calendar is made. If not reached on that day, however, the
cause may be left ofl^, on making up the next day's calendar, and
go over for the day named in the stipulation.

Court not in session on day stipulated. — When causes are
stipulated for days when the court is not in session, they will,
unless new stipulations for a later day are filed, be set down by
the clerk for the first day thereafter on which the court is in
session, and will then be placed on the day calendar in their
numerical order.

Neiv general calendar; effect of, on prior stipulations. — When
a new general calendar is made up, stipulations theretofore filed,
reserving causes carried over to the new calendar go for nothing;
and if the hearing of such causes on the new calendar is to be re-
served for days certain, new stipulations must be filed. 170 W.
T. 122 ; Slater v. Slater, 174 K Y. 274.

RULE XI.

Motions and Appeals from Orders.

[Motions, appeals from final orders in special proceed-
ings, from interlocutory judgments and from orders in
actions and special proceedings, certified to this court by
the Appellate Division of the Supreme Court, except orders
granting a new trial, may be noticed for, and will be heard
on, the first Monday of each session of the court, before

Eule 11] Motions and Appeals feom Oedees. 140

taking up the general calendar. Notices of argument, of
appeals within this rule must contain the claim that the
appeal is one entitled to be heard under Biile XI of the
Court of Appeals.

Motions will be heard orally on the first Monday of a
session only ; but they may be submitted without oral argu-
ment on any Monday when the court is in session; pro-
vided they are submitted by both sides and the papers
are filed with the clerk on or before the precediug Friday.
If either party demands an oral argument of a motion
noticed for any other than the first Monday of a session,
the motion will go over to the first Monday of the succeed-
ing session.]

Where notice has been given of a motion, if no one shall
appear to oppose, it wUl be granted as of course.

If a motion be not made on the day for which it has been
noticed, the opposing party will be entitled, on applying to
the court at the close of the motions for that day, to a rule
denying the motion, with costs.

Motions.

Definitions. — A motion is an application for an order ; section
768, Code Civ. Pro. ; an order is a direction of the court or of a
judge, in writing, and not contained in a judgment. Section
767, Code Civ. Pro.

A motion in general relates to some incidental question, col-
lateral to the main object of the action ; Pens. & Sar. P. P.. Co. v.
Davis (1873), 55 N. Y. 145, 149 ; it is not a remedy in the sense
of the Code, but is based upon some remedy, and is always con-
nected with and dependent upon the principal remedy. It is to
furnish relief in the progress of the action or proceeding in which
it is made and generally relates to matters of procedure, although
it may be used to secure some right in consequence of the deter-
mination of the principal remedy. Matter of Jetter (1879),
78 K Y. 601, 605.

An intermediate order which may be reviewed on appeal from
a final judgment is one made between the commencement and
termination of the action. Spencer v. Huntington (1905), 100
App. Div. 463.

150 Court of Appeals Peactice. [Rule 11

Motion papers. — Motion papers must be entitled in the Court
of Appeals (section 1295, Code Civ. Pro.) ; and papers not so
entitled cannot be read. Clickman v. Clickman (1848), 1 N.
Y. 611.

Upon a motion to dismiss an appeal, upon the ground that the
Appellate Division unanimously decided that there was evidence
supporting or tending to sustain the findings of fact, and that the
exceptions taken upon the trial were frivolous, the moving party
should furnish the court with at least one copy of the return or
of the record in the court below, and if any reason exists why he
cannot, it should be stated in the moving papers. Hutchinson
V. Eoot (1897), 153 K Y. 329.

Motions for leave to appeal. — For the principles governing the
allowance of appeals by the Appellate Division or, on its refusal,
by a judge of the Court of Appeals, from judgments of affirm-
ance in actions for a personal injury, where the decision of the
Appellate Division was unanimous (Code Civ. Pro., § 191,
subd. 2), see Sciolina v. Erie Preserving Co. (1896), 151 X. Y.
50. See also, under Eule I, p. 60, etc.

Motion to compel attorney to pay costs on dismissal. — A motion
to compel appellant's attorney to pay costs, personally, on dis-
missal of appeal, cannot be made in the Court of Appeals ; it
must be made in the court below after the judgment has been
there entered. Struffman v. Muller (1878), 74 K Y. 594.

Motions as to undertaking. — A motion to amend the under-
taking given on appeal to the Court of Appeals may be made in
the court below, when vwthin section 722 of the Code of Civil
Procedure, which allows certain amendments to be made " by the
court wherein the judgment is rendered, or by an appellate
court." Sullivan v. Conners (Supr. Ct. 1880), 10 Wkly. Dig.
455.

After an appeal has been perfected by giving an undertaking,
as prescribed by section 1326 of the Code, a motion to compel the
giving of a new undertaking (section 1308, Code Civ. Pro.),
should be made in the Court of Appeals, that being " the court
in which the appeal is pending," and the court below has no juris-
diction to entertain it. Parks v. Murray (1888), 109 N. Y. 646.

('See, also, under Eule I, as to when jurisdiction of Court of
Appeals attaches.)

Rule 11] Motions and Appeals from Ordebs. 151

Tlie court cannot amend an undertaking without consent of the
sureties; and an appellate court ought not to encourage appeals
by allowing amendments to undertakings without special reasons.
Langley v. Warner (1848), 1 K Y. 606.

Motions to dismiss appeal. — The court will entertain a mo-
tion to dismiss an unauthorized appeal, before the case is reached
on the calendar. Stoughton v. Lewis (Ct. App. 1885), 2 How.
Prac. (]Sr. S.) 331.

Where an appeal to the Court of Appeals has been perfected,
a motion to dismiss the same can be made only in that court.
Howey v. Lake Shore E. Co. (1896), 15 Misc. Hep. 526.

The objection that the judgment or order sought to be reviewed
is not appealable may be raised and decided either on the main
appeal or by motion to dismiss. McKeown v. Officer (1891),
127 K Y. 687.

It is not the practice of the Court of Appeals to entertain a mo-
tion to dismiss an appeal in part, in advance of the argument of
the case on appeal. Waldo v. Schmidt (1910), 198 IST. Y. 193.

A respondent, in moving to dismiss an appeal on the ground
that the time for appealing had expired before service of notice
of appeal, stands upon a strict right and must show a strict and
technical compliance with the statute on his part to entitle him
to the relief sought. Good v. Daland (1890), 119 KT. Y. 153.

It is not a ground for dismissal of appeal that the appellant
has failed to notice the case for argument and place it on the cal-
endar; he is bound only to file the return and serve the printed
case; if the respondent wishes to expedite the appeal he may
notice. Nidjoig y. McLean (1885), 98 N. Y. 458.

Where, upon inspection of the record filed in the Court of
Appeals, in an action tried by a jury, it appears that no question
of law that can be reviewed is presented, the appeal will be dis-
missed on motion. Dalzell v. Long Island R. R. Co. (1890),
119 K Y. 626.

Wbere questions presented by an appeal from a judgment are
dependent for their solution upon a consideration of the plead-
ings and proofs, they will not be disposed of upon a motion to
dismiss the appeal for alleged frivolousness. Hooper v. Beecher
(1888), 109 K Y. 609.

152 CouET OF Appeals Peactioe. [Rule 11

To sustain a motion to dismiss an appeal before argument, on
the ground that the judgment below has been unanimously af-
firmed by the Appellate Division as to the facts and that the ex-
ceptions in the case are frivolous, the exceptions m.ust be so
obviously frivolous on their face as to require no argument to
demonstrate it. Bachraeh v. Manhattan K. Co. (1897), 154
N. T. 178.

An objection to the entertainment of an appeal by the Court
of Appeals, on the ground that it does not appear by the record
that infant defendants and respondents had been served with
process in the action, should be presented by a formal motion to
dismiss the appeal, after notice to all parties. Allen v. Allen
(1896), 149 isr. Y. 280.

Where the case on appeal fails to show the court in which
judgment was rendered, or to show such a judgment as is set
forth in the notice of appeal, the appeal will be dismissed on
motion. It is not enough that the case states facts which make
it probable, merely, that an appealable judgment has been ren-
dered. Lahens v. Fielden (Ct. App. 1862), 15 Abb. Prac. 177.
But where the court can see that it is probable that the error is
clerical, and that in fact a right of appeal exists, it may allow
the return to be withdrawn for amendment in the court below. Id.

In People ex rel. Hamilton v. Police Comm'rs (1906), 183
N. Y. 566, the fact that the relator in a habeas corpus proceeding
had not surrendered himself into custody, but had avoided the
jurisdiction of the court, was held not to be a sufficient reason for
dismissing his appeal from an order dismissing the writ and re-
manding him to custody.

A notice of motion to dismiss appeal is not fatally defective be-
cause of an omission to specify therein upon what papers the mo-
tion will be made ; the nature of the motion apprises the appellant
that it is based on the record. Browne v. Taylor (1877), 69 N".
Y. 627.

Where a motion has been made for the dismissal of an appeal
to the Court of Appeals, a subsequent motion, based upon grounds
which were not brought to the attention of the court upon the
first motion, must be denied, since a party may not make as
many separate motions to dismiss an appeal, as he has, or sup-
poses he has, distinct grounds therefor, but must instead assign

Rule 11] Motions and Appeals feom Oedebs. 153

on his first motion all the reasons that he relies upon for a dis-
missaL Ferguson v. Bruckman (1900), 164 IST. Y. 481.

If question certified can be correctly answered in either nega-
tive or afiirmative, appeal will be dismissed. Malone v. St.
Peter's & St. Paul's Church (1902), 172 N. Y. 269.

An order of the Surrogate's Court must set forth the papers
upon which it was made, or if it does not, the appeal therefrom
will be dismissed. Matter of Gowdey (1905), 101 App. Div.
275.

(See, also, under Eule I, pp. 30-34, under heading " Jurisdic-
tion of Court of Appeals," as to grounds of entertainment and dis-
missal of appeals.)

Dismissal of appeal in criminal causes. — The Code of Criminal
Procedure provides as follows:

§ 533. If the appeal be irregular in a substantial particular, but not
otherwise, the court may, on any day in term, on motion of the respondent,
upon five days' notice, served with copies of the papers on which the motion
is founded, order it to be dismissed.

§ 634. The court may also, upon like motion, dismiss the appeal, 1. If
the return be not made, as provided in section 532, unless for good cause,
the time to make such return be enlarged; 2. If the appeal be not brought
on for argument by the appellant as promptly after the return has been
made as the circumstances of the case will reasonably admit. [As amended
by chap. 427 of 1897.]

Motions to withdraw appeal. — It was held in Snebley v. Conner
(1879), 78 IST. Y. 218, that although an appeal from an order of
General Term granting a new trial, in a ease tried by a jury,
which might have been decided on the facts, was not reviewable
in the Court of Appeals, the order might be affirmed and judg-
ment absolute rendered against the appellant on his stipulation,
instead of permitting a dismissal of the appeal. See, also, Boyle
V. ]Sr. Y., L. E. & W. E. R. Co. (1889), 115 K Y. 636; Williams
V. D., L. & W. R. R. Co. (1891), 127 K Y. 643; Matter of
Mosher (1906), 185 K Y. 435; Cooke v. People's Nat. Bank
(1903), 177 ]Sr. Y. 68; and it is intimated in Livingston v. City
of Albany (1900), 161 IST. Y. 602, that if appeals are taken from
Appellate Division orders of reversal and new trial, stating that
the reversal was upon the law and the facts, the rule of affirmance
with judgment absolute against the appellant on his stipulation,
adopted by Snebley v. Conner, supra, will be applied when the
record discloses that a question of fact is actually involved.

154 CouET OF Appeals Peactice. [Rule 11

And in such case tlie judgment absolute will be with costs in
all courts, since it is necessary to restrain the practice of taking
such reckless appeals by the most repressive form of judgment.
Van Slyck v. Woodruff (1908), 192 N. Y. 647; Tonsey v. Hast-
ings (1909), 194 N. Y. 79.

Where the complaint was dismissed at the trial and, on appeal,
the General Term reversed the judgment entered thereon, and
ordered a new trial, and the defendant appealed to the Court of
Appeals from the order of General Term, before judgment had
been rendered thereon, and stipulated for judgment absolute, and
thereafter moved for leave to withdraw such appeal on the ground
that, as no final judgment had been entered, the appeal was a
nullity, and also because he desired to try the case on the merits,
it was held that the motion should be granted, on payment of costs
and disbursements on appeal to the Court of Appeals, except the
fee for argument. Vernon v. Palmer (Ct. App. 1884), 5 Civ.
Proc. Rep. 233.

But, where the appellant's counsel, upon the argument of an
appeal, to the Court of Appeals from an order of the General
Term reversing a judgment in appellant's favor and granting a
new trial, was reminded of the danger to which his client was ex-
posed by reason of his stipulation for judgment absolute in case
of afSrmance and an opportunity given him to withdraw his ap-
peal, which he declined, and proceeded to argument, the appellant
was not, after a decision against him, permitted to withdraw his
stipulation and take a new trial. Williams v. Lindblom (1894),
143 K Y. 675.

Where the interests of justice require the granting of a motion
for leave to withdraw an appeal upon the argument of the case,
it should be upon conditions that will not cast the burden thereof
entirely upon the respondent. Martin v. Gavigan Co. (1906),
186 N. Y. 559.

An application for leave to withdraw an appeal to the Court
of Appeals should be addressed to that court. Powell v. Schenck
(1896), 6 App. Div. 130.

Laches. — For what laches were considered sufficient to deprive
an appellant of the right to dismiss his appeal and so be relieved
from the stipulation for judgment absolute, see Post v. Hathorn
(1873), 54 N. Y. 147. For what was not considered sufE:cient

Eule 11] Motions and Appeals from Obdebs. 155

laches to justify a refusal to entertain a motion to dismiss appeal,
see Hill v. Hermans (1874), 59 N. Y. 396. For motion to va-
cate a dismissal by default, refused on the ground of laches, see
McElwain v. Erie Ry. Co. (1877), 71 K Y. 600.

Motion for affirmance, on ground questions have been decided.
— A motion for judgment of affirmance or dismissal of appeal,
based on the ground that only questions arise in the cause which
have been recently passed upon by the Court of Appeals in other
causes, will not be granted where this is denied by the appellant.
Clark V. Claflin (1891), 128 N. Y. 610.

Motion after jurisdiction lost. — When it is desired to make a
motion after the Court of Appeals has lost jurisdiction of the
cause by reason of the remittitur having gone down and been
acted on in the court below, a motion should first be made to the
Court of Appeals to request the court below to return the re-
mittitiir (Bliss v. Hoggson [1881], 84 IST. Y. 667); or else, a
motion should be made in the court below for a vacation of its
proceedings on the remittitur and a return of the remittitur to the
Court of Appeals. Jones v. Anderson (1877), 71 K Y. 599.

Motions to amend return.- — See Rule II.

Motions to amend remittitur. — See Rule XVI.

Motions for reargument. — See Rule XX.

Default. — A motion will not be granted by default, where its
effect would be to interfere with the power of the court in con-
trolling the calendar. Grain v. Rowley (Ct. App. 1849), 4 How.
Prac. 79.

Appeals from orders, etc.

By force of the provision of section 9 of article VI of the Con-
stitution of 1894, which declares that after the last day of De-
cember, 1895, except where the judgment is of death, appeals
may be taken, as of right, to the Court of Appeals only from
judgments or orders entered upon decisions of the Appellate Di-
vision of the Supreme Court finally determining actions or special
proceedings, and from orders granting new trials on exceptions,
the appeals from orders which were theretofore entitled to be
heard as motions (Code Civ. Pro., § 192, repealed January 1,
1896, by ch. 946 of 1895) were abolished, as matter of right,
except in so far as they may be covered by the proviso in the

166 Court of Appeals Practice. [Rule 11

same section which declares that the provisions of the section
" shall not apply to orders made * * * by any General
Term before the last day of December, 1895, but appeals there-
from may be taken under existing provisions of law."

It is also provided by the same section of article VI that " the
Appellate Division in any department may, however, allow an
appeal upon any question of law which, in its opinion, ought to
be reviewed by the Court of Appeals."

In accordance with these provisions of the Constitution and the
corresponding amendments of the Code of Civil Procedure
(section 190), the present rule provides for the hearing of appeals
from final orders in special proceedings, and such appeals from
interlocutory judgments and from orders, as may be certified by
the Appellate Division.

The " term final orders in special proceedings," as used in this
ride, is the equivalent of the term " orders finally determining
special proceedings," employed in the Constitution and Code. As
to the construction and application of the term, see heading
" Jurisdiction of Court of Appeals," under Rule I, pages 30-51.

Mandamus. — While there may be a question as to whether an
appeal from a final order upon an alternative mandamus does not,
by force of section 2087 of the Code, belong upon the regular cal-
endar as an appeal from a judgment, such appeals have been per-
mitted to go upon the order calendar under Rule XI in People
ex rel. Hoefle v. Cahill (1907), 188 E". Y. 489; People ex rel.
McGinley V. Cahill (1907), 188 K T. 623; People ex rel. Powers
& Mansfield Co. v. Schneider (1908), 191 K Y. 523.

Appeals from interlocutory judgments. — An appeal by leave of
the Appellate Division from an interlocutory judgment of any
kind is an appeal from an order in an action which should not go
on the regular calendar, but either party has the right to notice it
for argument and place it upon the order calendar at his con-
venience. It was not the intention of the rule to restrict the
right conferred by it to appeals from interlocutory judgments
upon demurrers only. Slater v. Slater (1903), 174 ¥. Y. 264.

Control of calendar. — The court has control of the calendar
so that, after hearing on the merits an appeal placed on the order
calendar, it will not transfer it to the general calendar to be again
argued, although it may be technically entitled to go on that
calendar. Matter of Reynolds (1879)^ 77 N. Y. 631.

Eule 11] Motions and Appeals from Okdebs. 157

Procedure in court and practice of clerk's office.

Notice of motion; motion calendar. — Motions, other than ex
parte, should be on notice of at least eight days (Oode Civ. Pro.,
§ 780), unless the time is shortened by an order to show cause,
or unless notice is waived or short notice accepted. It is well to
file the notice, with proof of service, with the clerk by the Friday
preceding the motion day, when a calendar of motions, although
not printed, is made up, designated as the " Motion Calendar."
At the same time, a printed calendar is made of appeals from
orders, etc., covered by this rule, and known as the calendar of
appeals from orders, or the " Order Calendar."

Motion papers; motions for reargument. — Motion papers need
not be printed (except briefs on motions for reargument), and,
as well as the notice of motion, should be filed with the clerk
by the Friday preceding the day for which noticed. This is
prescribed by the rule, in motions to be submitted without oral
argument. One set of motion papers is all that is required and a
copy for each member of the court is not necessary; except in
motions for reargument, where eighteen printed copies of the
briefs on each side should be filed with the clerk, and also, al-
though not required hj Eule XX, eighteen printed copies of the
notice of motion and of the customary accompanying affidavit.

Argument of motions. — Counsel will be heard briefly on
motions, made on the first Monday of a session, except on motions
for reargument, which must be submitted. (See Eule XX.)

Notice of argument of appeal from order. — To entitle an
appeal from an order to be placed on the order calendar, a notice
of argument for the first Monday of a session must be served at
least eight days before the day named therein for the hearing
(unless service is waived or short notice accepted), and must be
filed with the clerk on or before Friday next preceding the Mon-
day named therein. The notice should so describe the appeal as
to show that it is within the rule.

Order calendar. — The clerk prepares and prints a calendar
(known as the order calendar) of appeals under this rule, for the
first Monday of each session, or, if ,a session begins on a day other
than Monday, then for the first day of the session, on which are
placed all causes entitled to go thereon, in which returns and
notices of argument have been filed as above. Causes are placed

158 Court of Appeals Puactice. [Eule 12

thereon according to priority o£ filing notices of argument, and
are given consecutive numbers, following the last number on the
general calendar. A copy of the order calendar is mailed to each
attorney having a case thereon, on the Friday preceding the com-
mencement of the session.

Copies of case and points. — Copies of the case, in appeals from
orders covered by this rule, must be served within forty days after
the appeal is perfected, as required by Rule VI, but by Rule VII,
the printed cases need not be filed or the printed points be filed
or served or exchanged until at least two days before the com-
mencement of the session.

Order of business on motion day. — On motion day (the first
Monday of each session) the following order of business is
observed :

1. The motion calendar.

'2. Other motions, if any.

3. The order calendar.

As a rule, the order calendar occupies several days, and the
general calendar is not taken up until the order calendar is dis-
posed of.

RULE xn.

Call of Calendar.

Eight causes only will be called on any day, but after
sucli call causes ready on both sides will be heard in their
order. Any cause which is regularly called and passed,
without postponement by the court for good cause shown
at the time of the call, [shall be stricken from the
calendar.]

Causes upon the calendar may be exchanged one for an-
other [as] of course, on filing with the clerk a note of the
proposed exchange, with the numbers of the causes, signed
by the respective attorneys or counsel. Upon all the subse-
quent calendars each of said causes will take the place due
to the date of the filing of the return in the other.

In like manner, a cause not upon the calendar in which
an appeal to this court has been perfected and the return
duly filed with the clerk, may be exchanged, [as] of course,

Eule 12] Call op Calendar. 159

for another cause upon the calendar, on filing with the clerk
a note of the proposed exchange, with the number of the
cause on the calendar, and the date of filing return in the
cause not upon the calendar, signed by the respective at-
torneys or counsel, and also a stipulation of the attorneys
or counsel in the cause not on the calendar, setting down
the same for argument in place of the calendar cause when
reached, with the same effect as if duly noticed. Upon all
subsequent calendars, each of said causes will take the
place due to the date of filing the return in the other.

Postponement of causes on call of calendar.

Reasons for postponement. — ^ If it appears bv affidavit, on a
cause coining on for argument, that a party is dead, the argument
will be postponed to enable a motion for substitution to be made.
Shaler Quarry Co. v. Brewster (1865), 32 N. Y. 472.

When a cause is upon the day calendar and reached, it will not
be postponed merely for the convenience of a party. Bank of
Salina v. Alvord (1865), 32 K Y. 684.

Suspending argument. — In the following cases, argument was
suspended for the purpose of applying to the court below for an
amendment of the record: Livingston v. Miller (Ct. App., 1852),
7 How. Pr. 219; Westcott v. Thompson (1858), 16 K Y. 613;
and in Eice v. Isham (1863), 1 Keyes, 44, the power of the court
to suspend judgment for that purpose was asserted.

Bay calendar.

When made up. — The day calendar of eight causes, for each
day the court is in session, is made up by the clerk at 6 p. m.
on the preceding day, and is then telegraphed to the ISTew York
Law Institute and the Association of the Bar of the City of
'New York, and furnished to the newspapers throughout the State.
It cannot thereafter be changed or a cause removed therefrom,
except by direction of the court ; and stipulations for the reserva-
tion of a cause, received by the clerk after the cause has gone
upon the day calendar, are of no effect, and will not prevent the
cause being called for argument, if reached on the day for which
the calendar has been made up. (See Rule X.)

160 CoTTET OF Appeals Pkactice. [Rule 13

Call of calendar. — The day calendar is not called through at
the opening of court, but the causes thereon are called one at a
time, in their order — no cause being called or taken up until the
preceding cause (if any there be) has been disposed of.

Exchanging causes.

The exchange of causes by stipulation provided for by the rule
has reference to the general calendar and can only be effected be-
fore either of the causes has been placed on the day calendar.
After that, an exchange for the purpose of altering the order in
which causes shall be called for argument, can only be had by
leave of the court.

KULE XIII.
Time of Argument.

In the argument of a cause not more than two hours
ihall be occupied by counsel on either side, except by the
express permission of the court.

In the argument of an appeal [within Rule XI], not more
than thirty minutes shall be occupied by the appellant's
counsel, nor more than twenty-five minutes by the respond-
ent's counsel, [unless express permission be given by the
court and the cause placed at the foot of the order
calendar] .

Procedure on arguments.

The court sits to hear arguments on each week day, except Sat-
urday, the sessions being from 2 p. m. to 6 p. m., except Friday,
when the hours are from 10 a. m. to 2 p. m.

When a cause is called for argument, the counsel for appellant
opens, counsel for respondent answers, and the appellant may, if
he desires, reply briefly.

Only one counsel is heard on each side, unless the court other-
wise directs.

The reading by counsel, of opinions at length from reports is
not encouraged.

Rule 13] Time of Aegumewt. 161

Criminal causes.

Number of counsel to be heard, etc. — The Code of Criminal
Procedure provides as follows:

§ 540. Upon the argument of the appeal, if the crime be punishable with
death, two counsel on each side must be heard if they require it. In
any other case, the court maj', in its discretion, restrict the argument
to one counsel on each side. The counsel for the defendant is entitled
to the closing argument.

Assignment and compensation of counsel.

§ 308. If the defendant appear for arraignment without counsel he must
be asked if he desire the aid of counsel, and if he does the court must
assign counsel. When services are rendered by counsel in pursuance of
such assignment in a case where the offense charged in the indictment is
punishable by death, or on an appeal from a, judgment of death, the court
in which the defendant is tried or the action or indictment is otherwise dis-
posed of, or by which the appeal is finally determined, may allow such counsel
his personal and incidental expenses upon a verified statement thereof being
filed with the clerk of such court, and also reasonable compensation for his
services in such court, not exceeding the sum of five hundred dollars, which
allowance shall be a charge upon the county in which the indictment in the
action is found, to be paid out of the court fund, upon the certificate of the
judge or justice presiding at the trial or otherwise disposing of the indict-
ment, or upon the certificate of the Appellate Court, but no such allow-
ance shall be made unless an affidavit is filed with the clerk of the county
by or on behalf of the defendant, showing that he is wholly destitute
of means.

Continu/ince of assignment. — Counsel assigned to a defendant
at the time of his arraignment continues until the disposition of
an appeal, unless such counsel voluntarily withdravs^ from the
case or the relations as counsel are otherwise terminated. A new
assignment of counsel on appeal is not ordinarily necessary.
People V. Strolla (1906), 186 N. Y. 526.

Revocation of assignment of counsel. — When counsel assigned
in a criminal case indulge in unreasonable delay, withouir excuse,
and thus place the defendant in default, they should not be re-
tained in that position or thereafter assigned by the court in other
criminal actions. People v. Nelson (1907), 188 N". Y. 2.34.

Allowance to counsel in capital case. — The failure of counsel

for the defendant, on appeal in a capital case, to aid the court

by causing a case to be made so as to simplify and shorten the

examination of the record, may properly be considered in passing

162 Court of Appeals Peactice. [Kule 14

upon his application for compensation; but the application will
not be denied where it appears that he was misled by a misunder-
standing, shared in the trial court and the district attorney, as
to when the change of procedure effected by chapter 427 of the
Laws of 1897, amending section 458 of the Code of Criminal
Procedure, went into effect. People v. Barone (1900), 161 N. Y.
475.

An allowance of compensation to counsel for services rendered
on appeal, in pursuance of an assignment in a capital case, is
proper although the sum of five hundred dollars has been allowed
by the trial court for services rendered at the trial, as section 308
of the Code of Criminal Procedure, limiting such compensation
to that amount, applies to the trial and Appellate Courts sepa-
rately and not collectively. People v. Ferraro (1900), 162 N. Y.
545.

An application to the Court of Appeals under section 308 of
the Code of Criminal Procedure, to fix the compensation of coun-
sel for services rendered on appeal in a capital case, will be de-
nied where the sole object of the appeal was to secure delay for
the defendant (People v. Friola [1903], 175 N. Y. 407); and
where there is unreasonable delay in bringing the appeal to argu-
ment, no allowance will be made to counsel until a satisfactory
excuse is presented to the court. People v. Hampartjoomian
(1909), 196 ISr. Y. 77, 198 N. Y. 515.

RULE XIV.
Pieferred Causes.

No causes are entitled to any preference upon the calen-
dar except such as is given by law or tlie special order of
the court.

Any party claiming a preference must so state in Ms
notice of argument to the opposite party and to the clerk;
and he must also state the ground of such preference, so
as to show to which of the preferred classes the cause
belongs.

A preferred cause being once passed loses its preference.

Rule 14] Peefekeed Causes. 163

Preferences given by law.

The Revised Constitution of the State of New York, adopted
ISTovember 6, 1894, contains the following provision:

Causes involving an apportionment.

An apportionment by the Legislature, or other body, shall be subject to
review by the Supreme Court, at the suit of any citizen, under such reason-
able regulations as the Legislature may prescribe; and any court before
which a cause may be pending involving an apportionment, shall give pre-
cedence thereto over all other causes and proceedings, and if said codrt be
not in session, it shall convene promptly for the disposition of the same.
(Article III, section 5.)

The Code of Civil Procedure contains the follov/ing provisions
regulating the preference of causes on court calendars:

Preference of certain actions by the people.

§ 789. A trial, motion, appeal, or hearing in an action by the people to
recover money, funds, credits, or other property held or owned by the State
or held or owned, officially or otherwise, for, or in behalf of, a public or
governmental interest, by a municipal or other public corporation, or by a
board, officer, custodian, agency or agent of the State, or of a city, county,
town, village, or other division, subdivision, department, or portion of the
State, which the defendant has, without right, obtained, received, converted,
or disposed of; or to recover damages, or other compensation, for so obtain-
ing, receiving, paying, converting, or disposing of the same; or the aiding
or abetting thereof; is entitled, on the application of the attorney-general,
to a preference over any other business, at a term or sitting of any court
of the State, irrespective of its place upon the calendar.

Preference of criminal actions.

§ 790. A criminal action, including an appeal or other proceeding in a,
criminal cause, is entitled, under the direction of the court, to preference
in the trial or hearing thereof, over all civil actions, and special proceedings,
except as prescribed in the last section. [See Rule TX.]

Preference among civil actions.

'§ 791. Civil causes are entitled to preference among themselves, in the
trial or hearing thereof, in the following order, next after the causes specified
in the last section but one :

1. An action or special proceeding brought by or against the people of
the State, or brought by the people of the State on the relation of a party,
or brought by or against any State officer or board of State officers as
such; where the attorney of the said people. State officer or board of State
officers, or attorney for the plaintiffs in such action or special proceeding
has given notice, at the time of the service of the notice of trial or argu-
ment, of a particular day in the term at which he will move it. If the

164 Court of Appeals Practice. [Rule 14

action or special proceeding is not moved by said attorney for trial or argu-
ment on that day, or as soon thereafter in the same term as the court can
hear it, the other party may then move the, trial or argument; otherwise it
shall not he moved out of its order at that term, except by the special
order of the court.

2. An action or special proceeding in which The City of New York or a
board of officers, exercising powers conferred by a, statute for the protection
of public health or public or private property, or for the prevention or
punishment of violations of a statute relating to either of those subjeets,
or the commissioners of pilots in The City of New York, are parties; where
a, notice, similar to the notice prescribed in the last subdivision, has been,
served by their attorney, at the time of service of the notice of trial or
argument. The provisions of the last subdivision, relating to moving the
trial or argument, apply to a cause within this subdivision.

3. In the Court of Appeals or the Supreme Court an appeal taken by
either party, in an action or special proceeding other than as specified in
subdivision first of this section, where the people of the State, or a board of
State officers, are sole parties, or a State Officer is sole party, plaintiff or
defendant.

3a. In the Court of Appeals or the Supreme Court, an appeal taken by
either party in an action or special proceeding from a judgment or order
declaring a legislative enactment unconstitutional, is entitled on motion of
the appellant, to a preference over any business irrespective of its place
on the calendar, except as to preferences provided for in sections seven
hundred and eighty-nine, seven hundred and ninety and the preceding sub-
divisions of this section.

4. In the Court of Appeals, an action, a party to which has died, pending
the action, where the pendency of the action prevents a final settlement of
the estate of the deceased party.

5. In any court, an action or special proceeding in which an executor
or an administrator, or testamentary trustee, or an infant, or a trustee of a
fund for the support and maintenance of an infant, or a receiver appointed
by the court, or by the comptroller of the currency of the United States,
or a trustee in bankruptcy, or a general assignee for the benefit of creditors,
or the committee of a lunatic or an idiot, or a creditor of a deceased
insolvent debtor suing for the benefit of himself and other creditors interested
in the estate or property of such deceased debtor where a right of action is
given by express provision of law, is the sole plaintiff or sole defendant; an
action or special proceeding for the construction of, or an adjudication
upon or to determine the validity of the probate of a will, in which th«
administrator, with the will annexed, or the executor of the will is joined,
as plaintifl^ or defendant, with one or more other parties, and an appeal from
the judgments or decision in any of the foregoing actions or proceedings,
and in the Court of Appeals or the Supreme Court, an appeal from the
decree or decision of a. Surrogate's Court, determining a, will to be valid and
admitting it to probate, or determining an instrument offered for probate as
a will to be invalid or not entitled to probate as such, or granting general

Rule 14] Peepeeeed Causes. 165

letters of administration or directing the distribution of a fund or payment
of money by an executor or an administrator, in pursuance of an order or
decree made on an intermediate, final or judicial accounting or otherwise,
by an administrator or an executor.

6. An action for dower, where the plaintiff makes proof by affidavit, to
the satisfaction of the court, or a judge thereof, that she has no sufficient
means of support, aside from the estate in controversy; an action for the
partition of real property.

7. An action against a corporation or joint-stock association, issuing bank
notes or any kind of paper credits to circulate as money, or by or against
a, receiver of such corporation or association. An action in which a county
or town is sole plaintiff or defendant.

8. An action against a corporation founded upon a note or other evidence
of debt for the absolute payment of money. An action upon an undertaking
given upon an appeal to the Court of Appeals or to stay the execution on
an appeal to the Court of Appeals.

9. An action against a sheriff, in his official capacity, or an action by a
sheriff or late sheriff, to recover for a breach of the obligation of a bond or
an instrument or instruments of indemnity, or an undertaking or under-
takings given to him in his official capacity.

10. A cause entitled to preference by the general rules of practice, or by
the special order of the court in the particular case.

11. In any court an action for libel or slander. (Added by Laws 1898, chap.
136.)

12. In the Court of Appeals, all appeals from judgment of affirmance
rendered by the Appellate Division of the Supreme Court in cases enumerated
in subdivision two of section onp hundred and ninety-one of this act,
where the decision of the Appellate Division has been unanimous and
an appeal has been taken or allowed as in said subdivision of said section
provided.

13. An action for absolute divorce in which an order has been made
granting temporary alimony.

Where an issue of law and an issue of fact, or two or more other
questions of different natures, come before the same term of the court
for trial or hearing the preference given by this section affects only the
order, in which the issues or questions of the same nature are to be
disposed of.

Preference in mandamus or prohibition.

§ 792. Where a writ of mandamus or of prohibition has been issued
from the Appellate Division of the Supreme Court to a Special Term,
or a judge of the same court, the cause may, in the discretion of the
court, or, where an appeal is taken therein to the Court of Appeals, in
the discretion of that court, be preferred over any of the causes speci-
fied in the last section.

166 CoTJET OF Appeals Peactice. [Rule 14

When an order necessary.

§ 793. 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 procure an order
therefor from the court or a judge thereof upon notice to the adverse
party. A copy of the order must be served with or before the notice or
trial or argument. Such an order is not appealable, but it may be
vacated by the judge or judges holding the term at which the preferred
cause is noticed for trial or hearing, or by such other justice, or at such
other term of court, or at such other time as shall be prescribed by the
general or special rules of practice. But a preliminary order is not requisite
in a case embraced within subdivision first or second of the last section but
one, and the order in a case embraced within subdivision six thereof may be
made ea> parte, and is conclusive. * * •

Second and subsequent appeals.

§ 195. Upon a second and each subsequent appeal, including a. case where
a former appeal has been dismissed for a defect or irregularity, the time
of filing the return, upon the first appeal, determines the place of the cause
upon the calendar.

Case involving title to office.

§ 229. An appeal from a, judgment or decree in any case in which the
question of the title to a public ofiice is directly or collaterally at issue
or in any manner involved, may be placed on the calendar and noticed for
hearing on any day in the Appellate Division of the Supreme Court, in
the first department, or in the Court of Appeals, and shall be heard on said
day.

Other statutory provisions concerning preferred causes are as
follows :

Review of assessments for taxation.

Section 295 of the Consolidated Tax Law, in the article relating to the
review of assessments by certiorari, provides as follows: "An appeal may be
taken by either party from an order, judgment or determination under this
article as from an order, and it shall be heard and determined in like
manner as appeals in the Supreme Court from orders. All issues and
appeals in any proceeding under this article shall have preference over all
other civil actions and proceedings in all courts."

Preference in action or proceedings by or against leceiver of insolvent cor-
porations.

Section 316 of the General Corporation Law is as follows: "All actions
or other legal proceedings and appeals therefrom or therein brought by or
against a receiver of any of the insolvent corporations referred to in this
chapter, shall have a preference upon the calendars of all courts next
in order to actions or proceedings brought by the people of the State of New
York."

Rule 14] Peefekred Causes. 167

Actions affecting New York City Rapid Transit Commission.

Section 9 of chapter 4, Laws of 1891, as amended by section 5
of chapter 519, Laws of 1895, is as follows:

Every action or proceeding brought by tli© said board and every action
or proceeding in whicli an injunction is had or sought against the board
or the said city, or against any corporation or person who or which shall
have entered into a contract under the provision* of this act or any act
supplementary thereto, or amendatory hereof, by reason of any act or
thing done, proposed or threatened under or by virtue of any provision
of this act, or any act supplementary hereto, or amendatory hereof, or is
sought against any corporation or person claiming or claiming to act
under any grant or franchise under this act, or any act supplementary
hereto, or amendatory hereof, and every action or proceeding in which the
constitutionality of any part of this act or of any act supplementary hereto,
or amendatory hereof, shall or may be brought in question, shall have a
preference above all causes not criminal on the calendar of every court, and
may be brought on for trial or argument upon notice of eight days for any
day of any term on which the court shall he in session.

Actions under Public Service Commissions, or Railroad Law.

Section 21 of the Public Service Commissions Law is as fol-
lows :

Court proceedings; preferences.

^ All actions and proceedings under this act, and all actions and proceedings
BEommenced or prosecuted by order of either commission, and all actions and
proceedings to which either commission or the people of the State of New
York may b© parties, and in which any question arises under this act or
under the Railroad Law, or under or concerning any order or action of the
commission, shall be preferred over all other civil causes except election
cases in all courts of the State of New York, and shall be heard and
determined in preference to all other civil business pending therein, excepting
election cases, irrespective of position on the calendar. The same prefer-
ence shall be granted upon application of counsel to the commission, in any
action or proceeding in which he may be allowed to interfere.

Preference, in general.

Inherent power to grant. — Courts have an inherent power to
control their own calendars, and on that ground alone may grant
orders giving causes a preference on the calendar. Smith v.
Keepers (Supr. Ct. 1884), 5 Civ. Proc. R. 66.

Statutory right to, cannot he abridged. — Where a right to
preference is given by the Code absolutely, without any qualifica-
tion or condition, being given by statute it cannot be limited or

168 CouET OF Appeals Peactice. [Rule 14

abridged by the court, by rules or otherwise. McArthur v. Coin-
mercial Fire Ins. Co. (N. Y. City Ct. 1884), 67 How. Prao. 510.

Must he claimed in notice of argument. — ISTotwithstanding the
provisions of the Code giving preferences among civil causes, a
party claiming a preference in the Court of Appeals must comply
vsdth the direction of its rule, that such claim, and the grounds
thereof, must be stated in his notice of argument. Taylor v. Wing
(1881), 83 K Y. 527.

Appeal from order in preferred cause. — Where an appeal in
an action entitled to a preference under one of the general statu-
tory provisions is also entitled to be heard on a motion day under
Rule XI, it should go upon the order calendar and not upon the
general calendar. Slater v. Slater (1903), 174 IST. Y. 264.'

Preference, in particular cases.

Section 791, subdivision 1. — Where, in an action in which the
people were parties, and appeared by the Attorney-General, the
latter did not, at the time of serving notice of argument, give
notice of a partierilar day in the term on which he would move
it, but served with the notice of argument, notice of motion that
the cause be set down for a day named, which motion failed be-
cause the court adjourned before the day specified for making it,
— it was held that the action was not entitled to a preference.
People ex rel. Augerstein v. Kinney (1883), 92 N. Y. 647.

Section 791, subdivision 4. — To entitle an action to the prefer-
ence given by subdivision 4 of section 791 of the Code of Civil
Procedure where a party to an action in the Court of Appeals has
died pending the action and its pendency prevents a final settle-
ment of his estate, the deceased party must have been, and his
substituted personal representative must be, the sole plaintiff or
sole defendant in the action. Colton v. IST. Y. Elevated E. R. Co.
(1896), 151 K Y. 266.

Section 791, subdivisio7i 5. — To entitle a cause to a preference
as " an action for the construction of, or an adjudication upon,
a will " it must be expressly brought for that purpose ; it is not
enough that the construction of a will is incidentally involved.
Peyser v. Wendt (1881), 84 N. Y. 642.

A sole plaintiff who does not sue as executor is not entitled to
have his cause put upon the calendar of preferred causes in the

Rule 14] Peefeeeed Causes. 169

Court of Appeals, on the ground that he brought the action in
that capacity; the court cannot make the inference from what is
contained in the record. Seymour v. Spring Forest Cemetery
Association (1893), 139 JST. Y. 645.

An action by a creditor of a deceased insolvent debtor on behalf
of himself and others to set aside a transfer, is entitled to a
preference. Eottle v. Mut. Life Ins. Co., 67 App. Div. 12.

The right to a preference, given by subdivision 5 of section
791 of the Code of Civil Procedure, vphen a person in one of the
capacities speciiied is the sole plaintiff or sole defendant, does not
extend to a case where the same person is joined as a party in
his individual capacity as well as in the prescribed capacity.
Haux V. Dry Dock Savings Inst. (1896), 150 IST. Y. 581.

The right to the preference applies to cases in which there are
several plaintiffs or defendants, where all the parties on the same
side are such in representative capacities within this subdivision,
and in no other capacity. See ililligan v. Cottle (1897), 152
W. Y. 644.

Section 791, subdivision 6. — A preference under this subdi-
vision can be claimed only when the proof required, i. e., that
the plaintiff " has no sufficient means of support, aside from the
estate in controversy," has been made and an order allowing the
preference obtained as required by section 793, before the notice
of argument was served. Bartlett v. Musliner (1883), 92 K^. Y.
646.

Section 791, subdivision 7. — When a preference is claimed on
the ground that the action is one against a corporation " issuing
bank notes, or any kind of paper credits, to circulate as money,"
and this fact does not appear in the pleadings or other papers on
which the appeal is to be heard, the party desiring the preference
must procure an order therefor under section 793. Bank of
Attica V. Metropolitan ISTat. Bank (1883), 91 N". Y. 239.

A ease in which a village is sole plaintiff or defendant is not
entitled to a preference under the last sentence of this subdivision.
Keane v. Village of Waterford (Ct. App. 1891), 26 N". E. 759.

Section 791, subdivision 8. — An action on an insurance policy
is not an action founded upon an " evidence of debt for the abso-
lute payment of money," within the meaning of the Code. This
expression is to be confined strictly to instruments which admit
on their face an existing debt, payable absolutely, and is not

170 Court of Appeals Pbacticb. [Rule 14

applicable to a contract payable only upon certain specified con-
ditions. N. Y. Life Ins. Co. v. Universal Life Ins. Co. (1882),
88 ISr. Y. 424, overruling Studwell v. Charter Oak Ins. Co.
(1879), 19 Hun, 127, wbich had been dissented from in Wells v.
Watertown Fire Ins. Co. (1880), 21 Hun, 409.

A lease of wharf property for a term of years at a yearly rent
is not to be regarded as an obligation for the absolute payment
of money, so as to entitle to a preference an action against a
corporation thereon. Philadelphia S. S. Dock Co. v. Lorillard
S. S. Co. (Supr. Ct. 1878), 54 How. Pr. 508.

An action against a corporation to recover the amount of in-
terest coupons upon bonds issued by another corporation, based
upon an agreement between the two corporations, by which de-
fendant had become liable for their payment, being in reality an
action on the agreement and not an action on the bonds, is not
an action " founded upon a note or other evidence of debt, for the
absolute payment of money," within the meaning of the provision
of the Code giving to such an action against a corporation a
preference upon the calendar. Polhemus v. Fitchburg E. R. Co.
(1889), 113 K Y. 617.

Section 791, subdivision 10. — By force of section 3347 of the
Code of Civil Procedure, regulating the application of certain
portions of that Code, section 791 is not made applicable to the
Court of Appeals except where that court is designated in a
particular provision; the provision in subdivision 10, for a pref-
erence in the case of " a cause entitled to preference by the gen-
eral rules of practice," that is, by the rules of courts other than
the Court of Appeals, does not designate, and therefore does not
apply to, the Court of Appeals. Therefore, to obtain a preference
upon the calendar of that court, in a case where it is not desig-
nated by the Code, or in its rules, the application must be ad-
dressed to the discretion of the court. Nichols v. Scranton Steel
Co. (1892), 135 N. Y. 634.

The mere showing in a case that certain certificates of stock
belonging to defendant, and in possession of another, were levied
on and were still held under an attachment, does not justify the
giving of preference to the hearing of the appeal therein. Id.

The fact that two corporations differ in the construction of a
mutual agreement, and in the meantime neither fulfils its obliga-

Rule 14] Peefeeked Causes. 171

tion to the holders of its securities, furnishes no reason for giving
a cause a preference by the court, in the exercise of its discretion.
Polhemus v. Fitchburg R. R. Co. (1889), 113 N. Y. 617.

Section 791, subdivision 12. — This provision applies only to
appeals taken after its enactment took effect (September 1, 1899),
and not to appeals then pending. Coxhead v. Johnson (1899),
160 ]Sr. Y. 369.

Section 793. — It is no excuse for a failure to procure an order
for preference under this section, that there was no term of the
Court of Appeals at which a motion for the order could be made.
Such a motion may be made before any judge of the court, at his
residence or ofBce, or at any place which the judge on application
of the moving party may name. Bank of Attica v. Metropolitan
Nat. Bank (1883), 91 IST. Y. 239.

A party entitled to a preference may withdraw former notice
and serve new one. Gilbert v. Finch, 46 App. Div. 75.

Where a party has neglected to procure the proper order for
preference, under this section, the court will not, after the calen-
dar is made up, make an order nunc pro tunc giving the prefer-
ence, where no good reason appears for giving that particular
case a preference over other causes on the calendar, but will, if it
has been placed on the preferred calendar, strike it therefrom and
place it in its proper order on the general calendar. Id.

Review of assessments. — Appeals in certiorari proceedings to
correct tax assessments, under chapter 269, Laws of 1880, were,
by force of section 7 of that act, now embodied in section 255
of the Tax Law (L. 1896, chap. 908), deemed " appeals from
orders entitled to be heard as motions," when the provision of the
Code of Civil Procedure authorizing such classification of appeals
(section 192, repealed by chap. 946 of 1895) was in force. Peo-
ple ex rel. WalkiU Valley R. R. Co. v. Keator (1885), 101 N. Y.
610; People ex rel. West. U. Tel. Co. v. Dolan (1891), 126
K Y. 166.

Preferred calendar; practice of clerk's oflSce.

Causes belonging to the same preferred class are placed on the
preferred calendar of such class in the order of date of filing
returns, and are called for argument in that order, no other pref-
erence being recognized among them than that arising from
priority in date of filing return.

172 Court of Appeals Peactice. [E-ule 15

RULE XV.

Defaults.

Judgments of reversal by default will not be allowed.
When a case is called in its order on the calendar, if tbe
appellant fails to appear and furnish the court 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 cause.

When any cause shall be regularly called for argument,
and no other disposition shall be made thereof, the appeal
shall be dismissed without costs, and an order shall be
entered accordingly, which shall be absolute unless upon
application made and good cause shown, upon notice to the
opposite party within ten days, if the court is in session,
and if not, on the first motion day of the nest session, the
court shall revoke said order and restore said appeal.

Judgments by default.

This rule is based, as to subject-matter, upon a Eule XXV,
which was in force from 1862 to 1870. That rule provided that
no judgments by default should be allowed, but that, when a
caused was reached on the calendar, it must be argued, submitted
or passed, and that if either party appeared, he should deliver a
copy of his brief to the clerk, to be delivered when called for, to
the opposite party, who might at any time, within twenty days
after the hearing, furnish to each member of the court, and serve
upon the opposite party a printed answer to such brief, which
might be replied to in like manner at any time within fifteen days
after such service.

That rule, it was said by the court, was not intended to impose
upon the judges the duty of acting as counsel for the party who
did not appear to prosecute or defend, but was intended to save
to parties acting in good faith a further opportunity to present a
printed brief, and save the court the loss of time formerly con-
sumed in hearing motions to open defaults. Maher v. Carman
(1868), 38 N". Y. 25.

Rule 15] Defaults. 173

It was held, while the rule was in that form, that if the appel-
lant failed to appear when the cause was reached, or to submit a
brief afterwards, as then permitted, the judgment appealed from
should be affirmed of course. Kelly v. McCormiek (1863), 28
E". Y. 318; Smith v. Martin (1867), 3 Keyes, 373; Lyman v.
Wilber (1867), 3 Keyes, 427.

Conditions imposed on opening a default. — ■ Prior to 1862, the
rules permitted judgments, both of affirmance and reversal, by
default. In that state of the rules, a motion to open a default
taken on the failure of the appellant to appear when the case
was reached for argument, when the respondent's counsel attended
prepared to argue the cause, was granted, on excuse, on payment
of the taxable costs of the term and of opposing the motion and a
counsel fee of fifty dollars, in Slade v. Warren (1848), 1 N. Y.
431. The same counsel fee and costs of the term were imposed
as a condition of opening, on what may be considered ordinary
excuses, a default on the part of the respondent, in Conant v.
Vedder (Ct. App. 1849), 4 How. Prac. 141. In Jorgensen v.
Squires (1894), 142 IST. Y. 643, a motion to vacate an affirmance
by default, entered on the appellant's failure to appear when the
case was called on the day calendar, was granted on payment of
fifty dollars, within fifteen days after service of notice of the
entry of the order.

Practice of the clerk's office.

Affirmance hy default. — On an affirmance by default under the
rule, the clerk drafts and enters the proper order and furnishes
a certified copy thereof to the respondent's attorney, who should
thereupon serve notice thereof upon the appellant's attorney, as
required by Rule XVII before remittitur can issue, unless the
court shall otherwise direct. The fee for certified copy of the
order is one dollar.

Dismissal on call of calendar. — When an appeal is dismissed
under this rule, on the call of the calendar, the clerk drafts and
enters the proper order and makes up a remittitur, which, to-
gether with a certified copy of the order, is transmitted to the
respondent's attorney, if he so requests; if not, the papers are
transmitted to the appellant's attorney. The fee for remittitur
and certified copy of order is three dollars.

174' CouBT OF Appeals Peactice. [Kule 16

Dismissal by consent. — ^An appeal may be dismissed by consent
at any time, by filing with the clerk a stipulation to that effect,
signed by the respective attorneys for the several parties, and
■ stating whether the dismissal is to be with or without costs. On
the receipt of such stipulation, the clerk drafts and enters the
proper order, and, if a return has been filed, makes up a remitti-
tur, which, with a certified copy of the order, is transmitted as
may be directed by the stipulation. If the stipulation contains
no direction on the subject, the papers are sent to the respondent's
attorney, if he so requests ; if not, they are sent to the appellant's
attorney. The fee for remittitur and certified copy of order is
three dollars. If no return has been filed, only a certified copy
of the order is sent down, the fee for which is one dollar.

Criminal causes.

The Code of Criminal Procedure provides as follows:
Papers, by whom furnished, etc.

§ 538. When the appeal is called for argument, the appellant must
furnish the court with copies of the notice of appeal and judgment-roll,
except where the judgment is of death. [See Rule IV.] If he fail so
to do, the appeal must be dismissed, unless the court otherwise direct.'

Judgment of afSrmance may be without argument, if appellant fails to
appear; reversal only upon argument, though respondent fail to appear.

§ 539. Judgment of affirmance may be given, without argument, if the
appellant fail to appear, or where the judgment appealed from is of death
and it shall not have been brought on for argument within six months
from the taking of such appeal, unless the court, for good cause shown,
shall have enlarged said time. But judgment of reversal can only be given
upon argument, though the respondent fail to appear. (Amended by Laws
1902, chap. 369.)

Negligence of counsel.— An affirmance of judgment in a capital
case without argument, on account of the negligence and default
of the defendant's counsel, is a most severe penalty which the
court will hesitate to impose. People v. Nelson (1907), 188
N. Y. 234.

RULE XVI.
Remittitur.

The remittitur shall contain a copy of the judgment of
this court and the return made by the clerk below, and shall
be sealed with the seal and signed by the clerk of this court.

R^^le 16] Remittittje. 175

Decision; remittitur; enforcement; restitution.

The State Constitution (Art. VI, § 3), provides as follows:

Judge or justice not to sit in review; testimony in equity cases.

No judge or justice shall sit in tlie 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.

The testimony in equity cases shall be taken in like manner as in
cases at law; and, except as herein otherwise provided, the Legislature
shall have the same power to alter and regulate the jurisdiction and pro-
ceedings in law and equity that it has heretofore exercised.

Tlie State Constitution (Art. VI, § 7), contains the following
provision in regard to the Court of Appeals:

Five members of the court shall form a quorum, and the concurrence
of four shall be necessary to a, decision.

The Judiciary Law, section 15, contains the following pro-
visions (formerly a part of § 46 of the Code) :

Disqualification of judge by reason of interest or consanguinity.

§ 15. A judge shall not sit as such in, or take any part in the decision
of, a cause or matter to which he is a party, or in which he has been
attorney or counsel, or in which he is interested, or if he is related by
consanguinity, or affinity to any party to the controversy within the sixth
degree. The degree shall be ascertained by ascending from the judge to
the common ancestor, and descending to the party, counting a- degree for
each person in both lines, including the judge and party, and excluding
the common ancestor. But a judge of the Court of Appeals, or a justice
of the Appellate Division of the Supreme Court, shall not be disqualified
from taking part in the decision of an aetion or special proceeding in which
an insurance company is a party or is interested, by reason of his being a
policy-holder therein.

The Judiciary Law, section 22 (formerly part of § 46 of the
Code), contains the following provision:

Judge other than of Court of Appeals or Appellate Division not to decide
question argued during his absence.
§ 22. A judge other than a judge of the Court of Appeals, or of the
Appellate Division of the Supreme Court, shall not decide or take part in
the decision of a question, which was argued orally in court, when he was
not present and sitting therein as a judge.

The Code of Civil Procedure provides as follows:

Form of judgment of affirmance.

§ 1317. * ♦ » A judgment afiirming wholly or partly a judgment,
from which an appeal has been taken, shall not, expressly and in terms.

1^6 CouET OF Appeals Practice. [Rule 16

award to the respondent, a sum of money, or other relief, which was
awarded to him by the judgment so affirmed.

Judgment on appeal.

§ 1337. * * * In any action on an appeal to the Court of Appeals,
the court may either modify or affirm the juugment or order appealed from,
award a new trial, or grant to either party such judgment as such party
may be entitled to.

Decision on demurrer with leave to amend.

§ 497. Upon the decision of a demurrer, either at a general or special
term, or in the court of appeals, the court may, in its discretion, allow the
party in fault to plead anew, or amend upon such terms as are just. If a
demurrer to a complaint is allowed because two or more causes of action
have been improperly united, the court may, in its discretion, and upon
such terms as are just, direct that the action be divided into as many
actions as are necessary for the proper determination of the causes of action
therein stated.

Remittitur; judgment absolute, and proceedings thereupon.

§ 194. The judgment or order of the Court of Appeals must be re-
mitted to the court below, to be enforced according to law. Upon an
appeal from an order granting a new trial, on a case or exceptions, if
the Court of Appeals determines that no error was committed in grant-
ing the new trial, it must render judgment absolute upon the right of
the appellant; and after its judgment has been remitted to the court
below, an assessment of damages, or any other proceeding, requisite to
render the judgment effectual, may be had in the latter court.

Remittitur upon certified questions.

§ 190 (subd. 2). * * * And the Court of Appeals shall certify to the
Appellate Division its determination upon such questions.

Mode of enforcing afSrmed or modified judgment.

§ 1319. Where a judgment, from which an appeal has been taken, from
one court to another, is wholly or partly affirmed, or is modified, upon
the appeal, it must be enforced, by the court in which it was rendered,
to the extent permitted by the determination of the appellate court, as
if the appeal therefrom had not been taken.

Correction of docket of judgment, on reversal, etc., by Court of Appeals.

§ l.'J'i^. Where a final judgment for a siiin of mnnev. or directing the
payment of a sum of money, has been reversed, or affirmed as to part
only of the sum, upon an appeal to the Court of Appeals, the docket
may be corrected, as prescribed in (section 1321) at any time after the
remittitur has been filed in the court below.

Rule 16] Remittitur. 177

Restitution; when awarded.

§ 1323. When a final judgment or order is reversed or modified, upon
appeal, the appellate court, or the general term of the same court, as
the case may be, may make or compel restitution of property, or of
a right, lost by means of the erroneous judgment or order; but not so
as to affect the title of a purchaser in good faith and for value. When
property has been sold, the court may compel the value, or the pur-
chase price, to be restored, or deposited to abide the event of the action,
as justice requires. When the appeal is from a judgment in favor of
the owner of real estate in an action to set aside a conveyance thereof
or in an action to compel the specific performance of a, contract for
the sale thereof, such owner shall have the same right to sell or dispose
of the same as though no appeal had been talien; unless the appellant shall
file with the clerk of the court a written undertaking, in a sum fixed by
the court, or a judge thereof, upon a notice to the respondent of at least ten
days, and to be approved by such court or judge, to the effect that the
appellant will, in case the judgment appealed from shall be afiirmed, pay
to such owner such damages as he may suffer by reason of such appeal,
not exceeding the amount of the penalty in such undertaking. Such under-
taking may be filed at any time during the appeal, but any sale of such
real estate or contract to sell the same in good faith and for a valuable
consideration, after said judgment and before the filing of such undertaking,
shall be as valid as if such undertaking had not been filed. In case such
undertaking shall not be filed, the respondent shall be entitled, at any
time during such appeal, to an order discharging of record any notice of
pendency of action filed in the action, and in an action to compel the
specific performance of a contract for the sale of real estate, also canceling
and discharging of record said contract, in case the same has been re-
corded. (Amended by Laws 1899, chap. 650.)

Restitution in summary proceedings to recover possession of real property.

§ 2263. If the final order is reversed upon the appeal, the appellate court
may award restitution to the party injured, with costs; and it may make
any order, or issue any other mandate, necessary to carry its determination
into effect. The person dispossessed may also maintain an action, to recover
the damages which he has sustained by the dispossession.

Decision.

Date of affirmance or reversal. — The announcement of its deci-
sion of an appeal constitutes the affirmance or reversal by the
Court of Appeals and fixes the date thereof, irrespective of when
the remittitur is issued or filed, or when an order thereon is
entered below. Treadwell v. Clark (1908), 127 App. Div. 256.

Action embracing a numher of items. — In an action at law
12

178 CouET OF Appeals Peactice. [Rule 16

embracing a number of items or claims, an appellate court has
no power to affirm a judgment allowing one item or claim and
send the cause back for a new trial as to another (Wolsterholme
V. Wolsterholme Mfg. Co. [Ct. App. 1876], 2 Wkly. Dig. 128);
but if the erroneous item is distinguishable from the other parts
of the judgment, the court may allow a modification by deduct-
ing it, and affirm the judgment, if the respondent consents to
such deduction. Hayden v. Florence Sew. Mach. Co. (1873), 54
N". Y. 221; and see Freel v. County of Queens (1898), 154 K
Y. 661. See 163 K Y. 345.

Severance of causes of action. — Where a case on appeal contains
two entirely separate and distinct causes of action, it is within
the power of the Court of Appeals to sever them and affirm the
judgment as to one, though it reverses it as to the other. Bremer
V. Manhattan Ey. Co. (1908), 191 N. Y. 333.

Reversal hy divided court. — In considering a former decision
of the Court of Appeals, where the court divided and the major-
ity concurred simply for reversal, it is not safe to treat anything
as having been adjudicated except the precise point in respect to
which error in the judgment of the court below was made to ap-
pear. Clews V. JST.'y. Nat. Banking Assn. (1887), 105 ^\ Y.
398, 403.

Affirmance without opinion. — ^Where a judgment is affirmed
in the Court of Appeals without an opinion, and withoiit formally
adopting the opinion below, it is not to be understood that the
affirmance is upon grounds substantially different from those taken
below ; on the contrary, the inference is the other way, as in ease
of such a difference the court would deem it proper to state the
reason for affirmance. Higgins v. Crichton (1885), 98 IST. Y.
626.

An affirmance by the Court of Appeals, without opinion, makes
it responsible only for the point decided below, not for all the
reasons given or opinions expressed ; and the affirmance or reversal
of the judgment of the Appellate Division does not necessarily
show that the Court of Appeals concurred in or dissented from
the statements contained in the opinion of the Supreme Court.
Eogers v. Decker (1892), 131 N. Y. 490.

Poiuer to correct judgment. — Where the Appellate Division has
struck out the judgment of the Trial Court, in an action to fore-

Rule 16] ' Remittitur. 179

close a mechanic's lien, a provision to whicli the plaintiff was
entitled adjudging a lien in his favor and substituted a provision
for a personal judgment to vehich he was not entitled, the Court
of Appeals has power, under section 1337 of the Code, to correct
the judgment by striking out the improper provision and restor-
ing the original one. Gilmour v. Colcord (1906), 183 N. Y. 342.

Decision without opinion not overruling. — ^When a decision is
made by the Court of Appeals upon full consideration, it cannot
be regarded as overruled by a subsequent case in which no opinion
was written and no ground of action stated. The court does not
overrule important authorities suh silentio. Pratt Institute v.
City of New York (161), 183 E". Y. 151.

Judgment of all judges present. — A judgment of aflSrmance pro-
nounced in open court is deemed the judgment of all the judges
present not dissenting. Mason v. Jones (1850), 3 IT. Y. 375.

Final judgment. — To justify an Appellate Court in awarding
final judgment in favor of aU appellant it must appear that the
facts upon which the right of recovery rests are undisputed and
cannot be varied upon another trial, or that they are established
by official records, or that they have been specifically found by the
jury or Trial Court. Benedict v. Arnoux (1898), 154 N. Y. 715 ;
Matter of Chapman (1900), 162 N. Y. 456; Dixon v. James
(1905), 181 N. Y. 129; Duclos v. Kelly (1909), 197 >T. Y. 76.

Decision on demurrer. — ^Where an order of the Appellate Di-
vision determining a demurrer grants leave to plead over condi-
tionally, the affirmance of the order by the Court of Appeals car-
ries with it an affirmance of such leave, without restating it;
and the time originally granted for the performance of the condi-
tion runs from the filing of the remittitur. Cassidy v. Sauer
(1907), 188 JSr. Y. 547.

Decision after death of party. — Where a party has died since
the argument of an appeal, but before the decision was handed
down, the court may amend the date of its decision nunc pro tunc
so as to make it bear date as of a day prior to the death (Carter
V. Beckwith [1880], 82 N. Y. 83; Matter of Beckwith [1882],
87 IST. Y. 503) ; and the substituted date of decision is properly
that of the argument or submission of the appeal. See Layton v.
Kraft (1909), 195 K Y. 525.

180 Court of Appeals Practice. [Eule 16

Scope of opinion.

Concurrence presumed. — Where two or more points are dis-
cussed in the opinions delivered on the decision of a cause, and
the determination of either point in the manner indicated in
such opinions would authorize the judgment pronounced by the
court, the judges concurring in the judgment must be regarded
as concurring in such opinions upon all the points so discussed,
unless some dissent is expressed or the circumstances necessarily
lead to a different conclusion. James v. Patten (1851), 6 IST.
Y. 9.

Reasons no part of judgment. — The reasons assigned by an
appellate court for reversing a judgment form no part of the
judgment of such court and cannot be used to modify its effect.
Wilson V. Palmer (1877), 11 Hun, 325, 327.

Dicta. — If broader statements are made in an opinion, by way
of argument or otherwise, than are essential to the decision of
the questions presented, they are the dicta of the writer of the
opinion and not the decision of the court. Colonial City Trac-
tion Co. V. Kingston City P. E, Co. (1897), 154 W. Y. 493.

Eemittitur; when should issue.

Where a return has been filed and any order is made by the
Court of Appeals which disposes of the entire appeal, it is proper
to send down a remittitur. This is so although the order may
not be on the merits — as, an order of dismissal for not serving
copies of the printed case. Dresser v. Brooks (1850), 2 E". Y.
559.

An order of dismissal is the judgment of the court, and a
remittitur is the regular process to restore the cause to the court
below to be enforced, whether the dismissal is in open court or
under the rules. Langley v. Warner (Ct. App. 1849), 2 Code
Rep. 97.

Where there is an appeal from a judgment and from an order
at the same time, in one return, and the appeal is dismissed so
far as it relates to the order only, a remittitur sending back the
judgment as well as the order is irregular. McFarlan v. Watson
(Ct. App. 1849), 4 How. Prac. 128.

On reversing a discretionary order because erroneously
founded on a supposed want of power, the cause is to be re-

Kule 16] Remittitue. 181

mitted to the court below for the exercise of its discretion. Hew-
lett V. Wood (1876), 67 K T. 394.

Action on remittitur in court below.

Order must he entered. — The judgment of the Court of Ap-
peals is to be remitted to the court below to be enforced accord-
ing to law, and it must, therefore, be brought formally to the
notice of that court and be made one of its judgments. It has
no other means of enforcing the judgment of the Court of Ap-
peals, and until it makes an order to that effect, and the judg-
ment of the Court of Appeals becomes incorporated in its own
records, no proceeding can be taken to enforce the judgment of
the Appellate Court. Merely filing the remittitur with the clerk
and his adjustment of costs thereon is not sufficient (Seacord v.
Morgan [Supr. Ct. 1859], 17 How. Prac. 394) ; and this practice
has been uniformly followed. Murray v. Jones (IST. Y. City
Ct. 1888), 2 K Y. Supp. 486.

The proper practice on entering judgment in the court below
upon a remittitur from the Court of Appeals is to direct, by
order, that the judgment of the Court of Appeals stand as the
judgment of the court below, and to insert the costs of appeal
when adjusted, in the latter judgment. Union India Eubber
Co. V. Babcock (K Y. Supr. Ct. 1854), 1 Abb. Pr. 262.

Neglect to file remittitur. — Where a remittitur had issued from
the Court of Appeals under its seal and had been delivered to
the prevailing party, as is the practice, with a view to having it
transmitted to the court below, it was held that the party who
had the remittitur could not be permitted to profit by his own
neglect to file it with the court below, and that, therefore, he could
not, after a new trial had been had under the judgment of the
Court of Appeals, without objection, insist that the court below
had no jurisdiction because the remittitur had not been filed
with it. Judson V. Gray (Ct. App. 1859), 17 How. Prac. 289.

What is not a filing of remittitur.— The mere coming of the
remittitur to the hands of the clerk of the court below is not
an actual filing, where the clerk immediately, on being served
with a stay, handed the remittitur back to the attorney, without
having marked it filed, and expressly refused to file it. Cus:h-

182 Court of Appeals Peacticb. [Rule 16

man v. Hatfield (1873), 52 K Y. 653; 15 Abb. Prac. (IST, S.)
109, and note.

The filing of a remittitur without the authority of the CJourt
of Appeals or in violation of its order is, in legal contemplation,
no filing. Marshall v. Macy (Supr. Ct. 1877), 5 Wkly. Dig. 90.
Omission to enter order may he amended. — The order making
the judgment of the Court of Appeals the judgment of the court
to which the remittitur is sent, is an order of course, and the
omission to enter it is a formal irregularity which the court below
may amend nunc pro tunc and which, on appeal from subsequent
orders, will be disregarded in the Court of Appeals; but the
better practice is to make a formal motion in the court below,
on filing the remittitur. Chautauqua County Bank v. White
(1861), 23 N. Y. 347. That the order of the court below may
be entered nunc pro tunc was reasserted in Seacord v. Morgan
(Ct. App. 1867), 4 Abb. Prac. (K S.) 249, 257; 3 Keyes, 636.
Interlocutory order. — ISTo judgment can be entered upon a re-
mittitur of an order of the Court of Appeals reversing an inter-
locutory order. Brown v. Leigh (1872), 50 K". Y. 427.

Court below cannot question regularity. — The court below can-
not go behind a judgment entered in conformity with a remittitur
from the Court of Appeals and inquire into its regularity. Gris-
wold v. Havens fSupr. Ct. 1863), 16 Abb. Prac. 413.

The court below cannot, upon motion, vacate a judgment en-
tered upon a remittitur from the Court of Appeals, on accotmt
of irregularity in obtaining the order of the Appellate Court on
which it issued; and although the Appellate Court loses jurisdic-
tion after an appeal has been regularly dismissed, the remittitur
sent down and judgment thereon perfected in the court below,
still, when its order had been irregularly obtained it seems that
it might vacate it and then the court below would set aside the
judgment entered thereon. ISTewton v. Harris (Supr. Ct. 1850),
8 Barb. 306.

Order must conform- to remittitur. — If the order of the court
below on a remittitur affirming a judgment is broader than the
judgment affirmed, or differs from it, it is so far of no effect.
Freeman v. Barber (1874), 1 Hun, 433.

-Eule 16] Remittitur. 183

The court below cannot supply any defect in the judgment
contained in a remittitur from the Court of Appeals nor add any
direction to it, beyond what is required to carry it into effect.
McGregor v. Buell (1864), 1 Keyes, 153; Matter of Prot. Epis.
Public School (1881), 86 N. Y. 396.

A judgment entered in pursuance of a decision of the Court
of Appeals cannot be altered by the court below, but it may au-
thorize the filing of a supplemental complaint after such judg-
ment has been entered in the action. Clark v. Mackin (1884)
34 Hun, 345.

Order must conform strictly to remittitur, and error in order
can only be corrected by Court of Appeals. Zapf v. Carter
(1904), 90 App. Div. 407.

Judgment on remittitur, not an actual determination. — The
duty of the court below in reference to a remittitur is simply
to enforce the judgment of the Court of Appeals, and the judg-
ment entered for that purpose is not an actual determination
from which an appeal lies to the Court of Appeals, although after
having been entered at Special Term it has been affirmed at Gen-
eral Term. Wilkins v. Earle (1&71), 46 K Y. 358.

Judgment absolute.

Covers all the issues. — Where, on appeals from an order grant-
ing a new trial, the Court of Appeals renders judgment absolute
against the appellant, it is obligatory upon the court below to
enter judgment in favor of the respondent upon all the issues in
the action. Wilson v. Palmer (1877), 11 Hun, 325, 327.

Specific relief in court below. — Where "judgment absolute"
has been awarded by the Court of Appeals, without determining
the character of the judgment, in an action where the relief may,
in the discretion of the court below, consist of an injunction or
of an award of damages in lieu thereof, the application for
specific relief should be made to the court below, and an amend-
ment of the remittitur in that respect is unnecessary. Bates v.
Holbrook"(19i02), 171 K Y. 688.

Whole claim covered by stipulation. — An objection that a judg-
ment should not have been reversed altogether, but should have
been sustained as to part of a claim and judgment for a smaller
amount given, cannot be made in the Court of Appeals after

184 CotTET OF Appeals Peactice. [Eule 16

stipulation for judgment absolute in case no error was committed
in granting a new trial where the whole claim was treated by the
appellant and passed upon below as a single claim, part of which
was invalid, since on such an appeal the order of reversal must
be aflSrmed if the record shows any error by the trial court calling
therefor. Bank of China v. Morse (1901), 168 IST. Y. 458.

Effect of judgment. — The effect of a judgment absolute by the
Court of Appeals, under section 194 of the Code, against the
defendant, in the action, is to award the plaintiff the judgment
which he is entitled to upon his complaint without regard to any
defense interposed by the answer; and in assessing the damages
thereunder the allegations of the complaint are to be treated as
true and the same as if no answer had been interposed. City
Trust, etc., Co. v. Am. Brewing Co. (1905), 182 IST. T. 285.

Counterclaim. — The judgment to be rendered on the affirm-
ance of an order granting a new trial, must be absolute against
the appellant upon the whole matter and right in controversy in
the action. Where, therefore, an order reversing a judgment in
favor of the plaintiff and granting a new trial is affirmed on
appeal to the Court of Appeals and judgment absolute ordered,,
in an action where the answer sets up a counterclaim, the defend-
ant is entitled to such judgment upon the remittitur as the facts
alleged by him in his answer entitle him to. Hiscock v. Harris
(1880), 80 N. Y. 402.

But there cannot be judgment absolute for a counterclaim
against the State, under a stipulation, on such an appeal. People
V. Dennison (1881), 84 K Y. 272.

Costs.

To he adjusted and inserted. — The costs of the appeal to the
Court of Appeals should be adjusted by the clerk of the court
below and inserted in the entry of judgment on the remittitur.
Union India Rubber Co. v. Babcock (Supr. Ct. 1854), 1 Abb.
Prac. 262.

Where an order of the General Term is affirmed by the Court
of Appeals, with costs, and the cause is remitted to the Supreme
Court, that court has power to adjust the costs in cases where the
clerk cannot do it. Cochran v. Ingersoll.(1877), 11 Hun, 342.

Interlocutory order. — The proceedings on a remittitur of the
Court of Appeals, reversing an interlocutory order are interlocu-

Rule 16] Kemittitue. 185

tory, and the costs are to be adjusted and collected as other inter-
locutory costs. Brown v. Leigh (1872), 50 N. Y. 427.

Irregular insertion of costs. — Although an entry of judgment
upon a remittitur from the Court of Appeals, with the costs in-
serted therein as adjusted in the absence of the attorney for the
unsuccessfid party, is irregular, the whole judgment is not void
on that account; and the irregularity, being confined to the entry
of the award of costs, can be corrected by amending the judgment-
roll, docket and execution, by striking it out. Lawrence v. Bank
of Eepublic (Siipr. Ct. 1866), 6 Hob. 497.

Costs not allowed when damages excessive. — Where, on affirm-
ing a judgment, it has seemed to the Court of Appeals that the
damages recovered are excessive, it has refused to allow costs.
See Cheesebro v. Corning, and Spink v. Corning (1902), 172
]Sr. Y. 626.

Double appeal. — Costs will be allowed against appellant on the
dismissal of one of two appeals from the same judgment on two
separate records which present the same question, although it
was taken from abundant caution to make certain of the hearing
of the question upon one record or the other and to settle a
doubtful question of practice and the appellant is successful on
the other appeah Abbey v. Wheeler (1902), 170 JST. Y. 122..

New trial ordered without costs.— Where the Court of Appeals
has reviewed a judgment as to one cause of action and granted a
new trial and has otherwise affirmed the judgment without costs
in the Court of Appeals to either party, the costs of the first trial
need not be retaxed after the new trial is had ; only the costs sub-
sequent to the reversal are taxable. Talcott v. Wabash E. E. Co.
(1904), 99 App. Div. 239.

Court below cannot change provision of remittitur. — The court
below cannot add any provision for costs to the remittitur (Mc-
Gregor V. Buell [1864], 1 Keyes, 153; Matter of Prot. Epis.
Public School [1881], 86 N. Y. 396; Stevens v. Central Nat.
Bank [1901], 168 K Y. 560) ; nor can it disallow costs granted
by the remittitur, but if a change should be made in that respect,
the remittitur should be returned to the Court of Appeals for
remedial action there. Sheridan v. Andrews (1880), 80 IST. Y.
648.

186 CouET OF Appeals Peactice. [Eule 16

Provisions of remittitur^ as to costs. — In the Court of Appeals,
all appeals are on the same footing and, on the dismissal of an
appeal with costs, fuR general costs follow, whether the appeal
be from an order or a judgment. White v. Anthony (1861), 23
JST. Y. 164; Brown v. Leigh (1872), 50 N. Y. 427.

Under section 3238 of the Code, regulating costs upon appeal
from a final judgment, the Court of Appeals has power, in an
equitable or legal action, upon the reversal of the judgment and
the granting of a new trial, in its discretion, to provide that the
costs shall abide the event, or to award them absolutely. Where
it is provided that costs shall abide the event, this means all the
costs of the action up to and including the decision of the Court
of Appeals. Franey v. Smith (1891), 126 N. Y. 658.

When costs are given by the judgment of the Court of Appeals
it means costs in that court to the successful party as against the
unsuccessful party. Sisters of Charity v. Kelly (1877), 68
K Y. 628.

Costs on appeal from a decree of Surrogate's Court, being in
the nature of a decree in equity, are discretionary. Lawrence v.
Lindsey (1877), 70 K Y. 566.

Where the Court of Appeals has once passed upon the question
of costs in that court, the State courts and the parties to the
action are thereafter bound by that decision, although the case
has subsequently gone to the United States Supreme Court and
its mandate has passed through the Court of Appeals down to the
court of original jurisdiction, but does not disturb the original
decision as to costs. Stevens v. Central Nat. Bank (1901), 168
N. Y. 560.

In a judgment of reversal by the Court of Appeals, " with costs
to abide event," in an action against an executor or administrator
the word " event " means not only final success in the action, but
also a valid award of costs, generally, under section 1836 of the
Code, regulating the award of costs against executors and admin-
istrators. Benjamin v. Ver Nooy (1901), 168 N. Y. 578.

Where the Court of Appeals reverses a judgment and grants a
new trial, " with costs to abide the event," without other limita-
tion, the party finally succeeding in the action is entitled to tax
the costs of the appeal. First Nat. Bank of Meadville v. Fourth
Nat. Bank of N. Y. (1881), 84 N. Y. 469.

Rule 16] Remittitur. 187

The words " with costs " in an order of affirmance or reversal
in the Court of Appeals, in a case where the allowance of costs
is discretionary, mean costs in that court only (Matter of Water
Commissioners [1887], 104 N. Y. 677). "When leave to with-
draw an appeal is granted " upon payment of all costs before
notice of argument," the costs referred to mean those in the
Court of Appeals. Broadway Savings Inst. v. Town of Pelham
(1896), 148 N. Y. 737.

The words " with costs," in a remittitur of reversal, in a case
where there were several appellants, do not mean costs to each of
the appellants. Isola v. Weber (1896), 12 App. Div. 267.

When the Court of Appeals awards to a party costs in the trial
court, the award carries with it not only the taxable costs and
taxable disbursements, but such further sum, if any, by way of an
extra allowance, as that court, in the exercise of a sound discre-
tion, may award. Hascall v. King (1901), 165 N. Y. 288.

Costs in special proceedings are in the discretion of the court
and no costs follow its decision unless awarded by it. It seems
that when granted they should be at the same rate as for similar
services in an action. Matter of Prot. Epis. School (1881), 86
N. Y. 396.

Costs of appeal in proceedings by common-law certiorari were
not allowable, whether the proceedings come into the Court of
Appeals upon appeal from a judgment or from an order super-
seding the writ (People ex rel. Smith v. Village of Nelliston
[1879], 79 N. Y. 638). Now, however, decisions on appeals in
certiorari proceedings when " with costs," carry full regular costs
of the Court of Appeals. As to costs of court below, see People
ex rel. Hill v. Town Auditor (1897), 42 App. Div. 250; People
ex rel. Am. Ex. Nat. Bk. v. Purdy (1909), 196 N. Y. 270.

(As to number of term fees which can be included in costs
of appeal to the Court of Appeals, see under Rule XIX,
"Calendars.")

Allowance of costs of action, after filing remittitur. — Where
a party is defeated upon the trial of an action, and has therefore
had no occasion or opportunity to ask for costs or an allowance,
but succeeds, upon an appeal to the Court of Appeals, in obtain-
ing a favorable judgment, the special term of the trial court may,

188 CouET OF Appeaxs Peactice. [Kule 16

upon application, after the filing of the remittitur and the en-
tering of an order thereon, grant to such party the costs of the
action and an additional allowance (Brown v. Farmers' L. & T.
Co. [Supr. Ct. 1890], 24 Abb. N. C. 160, with note). Where
the complaint in an equity action was dismissed on the trial, but
on appeal the judgment was reversed, the order of the General
Term affirmed by the Court of Appeals and judgment absolute
ordered for plaintiff, it was held that the Special Term had
power, upon the filing of the remittitur, to award costs of the
trial and appellate courts and an extra allowance. Barnard v.
Hall (1894), 143 N. Y. 339.

Damages for delay.

The Code of Civil Procedure, section 3251, subdivision 5, con-
tains the following provision:

Wiere a judgment is affirmed by the Cioirrt of Appeals, tie court may,
in its discretion, also award damages, by way of costs, for the delay, not
exceeding ten per centum upon tbe amount of the judgment; or, where it
was rendered upon an appeal, upon the amount of the original judgment.

Where not allowed. — Where an appeal presents debatable ques-
tions not settled at the time it was brought, damages, by way of
costs, for the delay caused by the appeal, authorized by the Code
of Civil Procedure (§ 3251, subd. 5), will not be allowed. Tis-
dale V. Del. & Hud. Canal Co. (1889), 116 K Y. 416.

Where allowed. — The Court of Appeals granted ten per cent,
damages for delay on affirmance of judgment in Warner v. Lessler
(1865), 33 N". Y. 296, where the appellant submitted no points
and indicated no errors; in Jackson v. City of Rochester
(1891), 124 N. Y. 624, where the case did not differ materially
from one which had recently been decided against the same appel-
lant; and in Hinds v. Kellogg (1892), 30 IST. E. 1148, which was
an action for work, labor and services, and materials furnished,
in 1887, in the manufacture of articles which defendant refused
to accept, on the ground that they were not delivered within the
time stipulated, which was to be " as soon as possible." Other and
more recent instances of the allowance of damages for delay are
Simmons v. Craig (1893), 137 N. Y. 550, 553 (five per cent.) ;
Reid V. Mayor of 'Mew York (1893), 139 K Y. 535, 538 (ten

Eule 16] Remittitur. 189

per cent.) ; White v. City of Brooklyn (1893), 139 N. Y. 651
(ten per cent.) ; Zoliewski v. IST. Y. C. & H. R. R. R. Co. (1893),
140 N. Y. 621 (ten per cent.) ; Lifurgy v. Stewart (1893), 140
N. Y. 661 (five per cent.); Digener v. Underwood (1894), 37
N. E. 56Y (five per cent); Jones v. Moores (1894), 37 F. E.
569 (ten per cent.); Riker v. Mahoney (1894), 37 N. E. 570
(ten per cent.); Bates v. United Life Ins. Ass'n (1894), 37
N. E. 824; Devlin v. Kosel (1894), 37 N. E. 824 (fifty dollars) ;
Donavan v. Sheridan (1894), 143 N. Y. 675 (ten per cent.);
Van Keuren v. Miller (1894), 144 K Y. 636 (five per cent.);
Van Keuren v. Miller (1896), 149 K Y. 583 (ten per cent);
Dunlop V. Wilken (1898), 155 N. Y. 673; Burke v. Tindale, Id.,
673; Roos v. Laird, Id., 683; White v. Jeffers (1899), 158 N. Y.
680; Storm v. N. Y. & IST. E. R. R. Co. (1899), 159 K Y. 538;
Cram v. Crawford (1900), 162 E". Y. 627; Rockwell v. Petrie
(1901), 165 K Y. 654; Ahr v. Marx (1901), 167 IST. Y. 582;
Spero V. West Side Bank (1901), 168 IST. Y. 588; Lott v. Clason
(1901), 168 ISr. Y. 652; .Stowasser v. Sherman Outfitting Co.
(1901), 168 K Y. 661; Appleby v. Sewards (1901), 168 IST. Y.
664; Cohen v. Metropolitan St Ry. Co. (1902), 170 IST. Y. 588;
Hasbrouck v. Marks (1902), 170 IST. Y. 594; Hill v. Chamberlain
(1902), 170 E". Y. 595; Alignum Co. v. Stoll (1903), 174 K Y.
542; Briefer v. Stoll (1904), 177 N. Y. 577; Wheeler C. & E.
Co. V. Packard Co. (1904), 178 N. Y. 571; Donnelly v. Burnham
(1904), 177 N. Y. 546.

Eestitution.

To what court application should he made. — Where, after the
collection of a judgment for costs entered on a remittitur from
the Court of Appeals, the remittitur was recalled and the judg-
ment modified by striking out the allowance for costs, it was held
that it being doubtful whether relief could be granted under
section 1323 of the Code, the remedy was not by a motion in the
Appellate Court for restitution, but by action or proceedings in
the court below to compel repayment. Wright v. Nostrand
(1885), 100 K Y. 616.

The court referred to in section 1292 of the Code (which pro-
vides that when a judgment is set aside on motion, the court
may direct and enforce restitution) is the court which set aside

190 CoTJET OF Appeals Peactice. [Kule 16

the judgment; hence, where after the collection of a judgment
in an action it was vacated by the General Term, and the order
of General Term was affirmed by the Court of Appeals, and an
order was entered on the remittitur at Special Term, making the
order of the Court of Appeals that of the court below, a motion
for restitution was properly made at General Term. Market
Nat. Bank v. Pacific Nat. Bank (1886), 102 N. Y. 464.

In Hayes v. Nourse (N. Y. Com. PL, Spl. T. 1889), 25 Abb.
N. C. 96, it was held that after reversal by the Court of Appeals
of a judgment which the appellant has, pending the appeal, paid,
an application for restitution should be made to the General Term
of the Trial Court; that there is no power to entertain the appli-
cation at a Special Term. But in Genet v. Del. & Hud. Canal
Co. (1892), 61 N. Y. Supr. Ot. 332, it was held that after a
reversal by the Court of Appeals, the Trial Court at Special Term
had authority to order restitution of costs. The case was upon
two causes of action; the plaintiff succeeded, at the trial, upon
one, but was defeated as to the other, and the costs were set off
and judgment for the difference only allowed, which was a|Brmed
by the General Term. Both parties appealed to the Court of
Appeals, which court affirmed so much of the judgment as was
appealed from by plaintiff and reversed those parts appealed from
by defendant, and dismissed the entire complaint with costs. It
was held that defendant could obtain at Special Term, by way
of restitution, a vacation of the order of set-off and leave to amend
the judgment-roll by inserting the costs of the original dismissal
of one cause of action.

It was held by the Court of Common Pleas that when its judg-
ment had been reversed by the Court of Appeals upon a ground
which in effect disposed of the controversy and prevented another
recovery upon the issues as framed, the former court would, the
judgment having been paid, order restitution, but would not di-
rect judgment therefor ; and that application for judgment of
restitution must be made to the Court of Appeals. Hayes v.
Nourse'(]Sr. Y. Com. PL, Gen. T. 1889), 25 Abb. N. C. 97.

The Court of Appeals upon application for such restitution
directed a recovery back by the appellant of the sum paid, with
interest from date of payment, and remitted the proceedings for
judgment in the court below. Hayes v. Nourse (Ct. App.

xtule 16] Eemittitue.

191

1^89^), 2«5 Abb. N. C. 101. See Holly v. Gibbons (1904), 177

_ Reversal absolute.— Wheve the judgment of the appellate court
IS given for the appellant absolutely and finally, no new trial
being ordered, there is no ground for exercising any discretion,
and restitution should be ordered. Estus v. Baldwin (Supr Ct
1853), 9 How. Prac. 80.

Where plaintiff recovered judgment for money paid on a con-
tract for the purchase of land, and the defendant paid the judg-
ment, which was afterwards reversed by the Court of Appeals, it
was held that, as the Appellate Court had determined in the de-
fendant's favor the only issue involved, restitution of the sum
paid by him should be ordered. Hayes v. Nourse (Is. Y. Com.
PL, Gen. T. 1889), 25 Abb. K c. 95, supra.

New trial directed. — Where the Appellate Court directs a new
trial, restitution will not be directed unless the remittitur con-
tains such direction or the judgment is reversed for such reasons
as would preclude the plaintiff from succeeding on such new trial.
Young V. Brush (Supr. Ct. 1864), 18 Abb. Prac. l7l.

It seems that the Supreme Court has power, on a motion for
restitution, where the judgment of reversal grants a new trial,
in order to guard the respondent from loss on account of the in-
solvency of the appellant, to make such order as it shall deem
proper for the withholding and for the disposition and safe-
keeping of moneys collected, pending the litigation. Marvin v.
Brewster Iron Mining Co. (1874), 56 K Y. 671.

Restitution — New trial. — Where, by the reversal of an er-
roneous judgment in a creditor's action to compel an executor to
sell real estate under a power of sale for the payment of debts,
the appellant is entitled to a restitution of the property which is
in the possession of the respondent, the fact that the judgment of
reversal ordered a new trial does not affect the right to an im-
mediate restitution of the property, accompanied by an account-
ing as to mesne profits. Holly v. Gibbons (1904), 177 N. Y.
401.

Possession of real estate. — When a judgment in a proceeding
to recover possession of real property is reversed, it is almost a
matter of course to award restitution of the premises to the party
improperly dispossessed. People ex rel. Eeilly v. Johnson
(1868), 38 K Y. 63, 66.

192 Court of Appeals Peacticb. [Rule 16

Where judgment for the plaintiff in an action of ejectment is
reversed and a new trial ordered, restitution to the defendant of
the premises in question will be ordered as of course ; but without
prejudice to the rights, if any, of a purchaser pendente lite.
Costar V. Peters (N. Y. Supr. Ct. 1868), 4 Abb. Prac. (N. S.)
53.

Where a writ of assistance, improperly granted, has been exe-
cuted, and is afterwards set aside, the person dispossessed under
it is entitled to be restored to possession, and the Court of Ap-
peals will, on reversing the order, award restitution of posses-
sion. Chamberlain v. Choles (1866), 35 N. Y. 477.

When reconveyance not necessary. — ^Where restitution is
proper, of property which has been sold to a trustee for cred-
itors, whose title has been extinguished by the reversal, it seems
that no reconveyance is necessary ; all that is required is to restore
the owner to possession. Wallace v. Berdell (1885), 98 X. Y.
480.

Bents and profits. — ^Where, on reversal of a judgment, the
Court of Appeals directed immediate restitution of certain real
estate of which an appellant had been dispossessed by means of
the erroneous judgment, and that the " mesne profits " up to the
time of the restitu.tion be ascertained and paid to him, it was held
that the intent was to provide for the same compensation for
withholding the real estate as the appellant would have been en-
titled to on recovering the same in an action of ejectment; and
that an order, entered upon the decision, providing that " the
value of the rents and profits " be ascertained, was substantially
in accord with the decision. Wallace v. BerdeU (1885), 101
N. Y. 13.

The owner of property withheld is not confined to the rente
actually received by the party required to make restitution, but
he should have either these or the rental value, as may be just
under the circumstances. Id.

Provision in order of restitution^ not in decision. — Where, on
reversal, the Court of Appeals directed the restitution of certain
real estate, and the order of restitution contained a provision
not contained in the decision, to the effect that the restitution and
payment of the rents and profits should be without prejudice to
the right of the owner to commence and maintain any suit or
proceeding for waste or injury to the property, it was held that,

Kiule 16] Eemittitue. 193

wiiile the provision might be superfluous, the order as entered was
proper, as it was not the intent of the' court to deprive the owner
of any such right of action, if he had any. Id.

Property must have heen taken under judgment reversed. —
Under the provision of section 1323 of the Code, authorizing an
Appellate Court, on reversal of a final judgment, to "make or
compel restitution of property, or of a right, lost by means of
the erroneous judgment," such court cannot restore property
taken and sold under another judgment, although the effect of
the reversal is to decide that the property was taken from the
party legally entitled to it; the court may interfere in this sum-
mary manner only to restore property or rights lost by the judg-
ment reversed. Murray v. Berdell (1885), 98 IST. Y. 480.

Restitution directed to a receiver. — It is not a ground of ob-
jection to an order of restitution that it directs restitution to
be made to a receiver of the party. Market ISTat. Bank v. Pa-
cific Nat. Bank (1886), 102 N. Y. 464.

Quo warranto. — Where, under an adverse judgment in an ac-
tion in the nature of a quo warranto, the defendant, who was
in the possession of the office, having a certificate of election from
the duly constituted board of canvassers, was removed from office,
it was held that, upon reversal of the judgment in the Court of
Appeals, that court had power and it was proper to compel resti-
tution of the rights lost by means of the erroneous judgment.
People ex rel. Dailey v. Livingston (1880), 80 N. Y. 66.

Attacliment. — ^Where a judgment in a suit by attachment had
been paid, it was held, on reversal of the judgment with a direc-
tion for a new trial, that restitution should be effected by order-
ing a deposit of the moneys into court, to abide the result of the
new trial. Britton v. Phillips (Supr. Ct. 1862), 24 How. Prac.
111.

Where the reversal of a judgment and the restoration of prop-
erty thereunder had the effect of reviving an attachment and exe-
cution, it was held that an order by the court below that the at-
tachment and execution, with the returns thereto, be taken from
the files of the county clerk's office and delivered to the sheriff,
and that the returns and the record of satisfaction of a judgment
be canceled, was proper, under the circumstances. Wallace v.
Berdell (1887), 105 ¥. Y. 7.
13

194' CouET OF Appeals Pkactice. [Eule 16

Restitution, luhen effected hy execution. — A direction for the
restitution of moneys paid upon a judgment which has been set
aside upon motion or reversed upon appeal, as authorized by the
Code of Civil Procedure (§§ 1292, 1323), is in effect a judgment
"for a sum of money" (§ 1240), and is therefore enforceable
by execution. O'Gara v. Kearney (1879), 17 W. Y. 423.

Proceedings for contempt, to enforce restitution. — ^Where a
judgment for a sum of money is reversed, restitution cannot be
enforced by proceedings for contempt (O'Gara v. Kearney
[supra] ) ; but where the restitution of the possession of land is
awarded, disobedience of the order may be punished as for a
contempt. Dawley v. Brown (Supr. Ct. 1872), 43 How. Prac. 17.

Notice to party affected. — It is irregular to permit a judgment
of restitution to be entered without notice to the party to be af-
fected thereby, where it has not been directed by the Appellate
Court in the remittitur. Young v. Brush (Supr. Ct. 1864),
18 Abb. Prac. 171.

Laches. — Eestitution may, in the discretion of the court, be
denied on account of delay in moving therefor. Market Xat.
Bank V. Pac. iN^at. Bank (1886), 102 IST. Y. 464.

Provisions of Code not exclusive. — The provisions of the Code
of Civil Procedure for restitution, on reversal of a judgment or
order, of money or property, or its proceeds, of which the appel-
lant has been deprived by reason of the erroneous judgment or
order, were enacted in recognition of the common-law right of
restitution, and to furnish additional means of enforcing that
right. The remedies prescribed are therefore not exclusive, and
a party entitled to restitution may obtain relief by action.
Haebler v. Myers (1892), 132 N. Y. 363; see, also, S. C. re-
ported below, with note, 24 Abb. JS^. C. 236.

The provision of section 1323 of the Code, conferring upon an
Appellate Court, or the General Term of a court in which .a
judg-ment was recovered, the power to award restitution where
the judgment was reversed, was not intended to and does not take
away the authority of the court which rendered the judgment to
direct restitution summarily. Piatt v. Withington (Supr. Ct.
1890), 19 Civ. Proc. E,. 378, citing Wright v. ISTostrand
(1885), 100 E". Y. 616 {supra, p. 189), Holly v. Gibbons (1904),
177 W. Y. 401.

Eule 16] Eemittitue. 195

When jurisdiction in Court of Appeals ceases.

• Jurisdiction in the Court of Appeals is not lost until the re-
mittitur has been filed in the court below and that court has taken
some action thereon. Accordingly, the Court of Appeals has
jurisdiction to make an ex parte order correcting a remittitur
which had been filed with the court below, but upon which no
action had been taken in that court. People ex rel. Smith v.
Village of Nelliston (1879), 79 iSF. Y. 638.

Before the above decision in People ex rel. Smith v. Village
of l^elliston, some uncertainty had existed in the practice, as to
the precise time when the Court of Appeals lost jurisdiction of
a cause which had been brought to it on appeal — e. r/., it had
been held in Burkle v. Luce (1848), 1 K Y. 239, that the Court
of Appeals did not lose jurisdiction until its remittitur had been
actually filed with the clerk of the court below, and that the mere
delivery of the remittitur to the attorney for the successful party-
did not have that effect; in Martin v. Wilson (1848), 1 N. Y.
240, that where, after affirmance, the remittitur had been filed
with the clerk of the court below, the Court of Appeals lost jurig-
diction of the cause so that it could not open a default therein ;
in Dresser v. Brooks (1850), 2 X. Y. 559, that after a remittitur
had been regularly sent to and 'filed with the court below, the
Court of Appeals lost jurisdiction; in Palmer v. Lawrence
(1851), 5 jST. Y. 455, that where the order entered by the clerk
on a decision of the Court of Appeals did not correctly state the
judgment of the court it would be amended on motion, notwith-
standing the remittitur might have been sent to the court below
and filed there; in Seacord v. Morgan (Supr. Ct. 1859), 17 LIow.
Prac. 394, that there must be action in the court below, as well
as filing there, to effect a change of jurisdiction; in Wilmerdings
V. Fowler (Ct. App. 1873), 15 Abb. Prac. (N. S.) 86, that after
the remittitur from the Court of Appeals had been filed in the
court below, and the usual order entered thereon, it must be re-
turned, by direction of the lower court, before the Court of Ap-
peals could grant a reargument of the appeal ; and in Cushnian v.
Hatfield (1873), 52 K Y^ 653, 15 Abb. Prac. (X. S.) 109, that
until actually and regularly filed below, the remittitur was under
the control of the Court of Appeals.

196 CotJET OF Appeals Peactice. [Eule 16

Return of remittitur for purposes of motion in Court of Appeals.

No amendment, until remittitur returned. — When the re-
mittitur has passed beyond the jurisdiction of the Court of Ap-
peals, by being regularly filed in the court below, and judgment
entered thereon, the Court of Appeals cannot amend the re-
mittitur, or vacate a dismissal on which it was issued, or enter-
tain a motion for reargument, until the remittitur has been re-
turned by the court below. Salmon v. Gedney (18'78), 75 IST. Y.
479, 483; Jones v. Anderson (1877), 71 K Y. 599; Wilmerd-
ings V. Fowler (Ct. App. 1873), 15 Abb. Prac. (K S.) 86.

When return of remittitur will he requested. — After the Court
of Appeals has lost jurisdiction of a cause by its remittitur hav-
ing been filed in the court below and judgment entered thereon,
it will, in a proper case, request its return by the court below,
and allow a motion to stand over until jurisdiction is restored by
the return of the remittitur. Bliss v. Hoggson (1881), 84 K Y.
667.

If motion is granted, then the court below is requested to return
the remittitur to the Court of Appeals to be amended accordingly.
See Hascall v. King (1901), 165 N. y. 288; Montgomery v.
Buffalo Ey. Co. (1901), 165 N. Y. 648.

Although it seems the Court of Appeals would, if likely to lead
to a disposition of the appeal favorable to the appellant, permit
its remittitur, sent down on an affirmance of an order vacating an
attachment, to be recalled to permit of an application to the court
below for an amendment to the order appealed from so as to show
that it was made on the ground that the justice of the court be-
low, who granted the attachment, had no power or jurisdiction in
the premises — yet, where that point has been considered on the
hearing of the appeal and the proposed amendment would not aid
the appellant, the motion will be denied. ISTational Shoe &
Leather Bank v. Mech. Nat. Bank (1882), 89 X. Y. 467.

Return of remittitur, by court helow. — In the absence of an ex-
pression by the Court of Appeals of a desire or willingness that
its remittitur should be returned, the judgment or order entered
in the court below upon the remittitur will not be vacated and the
remittitur returned to the Court of Appeals for the purpose of
applying for a reargument, unless there appears to be some chance

liule 16] Eemittitue. 19i7

that, under the decisions, a reargument will be ordered in that
court. Hillyer v. Vanderwater (Supr. Ct. 1890), 11 N. Y.
Supp. 1&7.

But it seems, that if the court should in any manner indicate
its desire or willingness that a remittitur sent down and filed with
the clerk of the court below be returned, the court below would at
once order any judgment or order that might have been entered
upon the remittitur to be vacated and the remittitur itself re-
turned to the Court of Appeals. Id.

After the remittitur from the Court of Appeals has been filed
in the court below and an order entered to carry it into effect, a
motion to restore it to the Court of Appeals with a view to its
amendment or correction there, cannot, be entertained by the court
below without the express assent or direction of the appellate
court, authenticated by its order (Selden v. Vermilya [1850], 3
Sandf. 683) ; or a suggestion from the Court of Appeals that the
remittitur does not conform to its judgment, or has been irregu-
larly issued. Bogardus v. Eosendale Mfg. Co. (1852), 1 Duer,
592.

Jurisdiction before return of remittitur. — It is competent for
a judge of the Court of Appeals, after its remittitur has been
filed and order entered thereon in the court below, to make an
order to show cause why the return of the remittitur should not
be requested and a reargument granted, with a stay of proceedings
in the meantime. Franklin Bank ISTote Co. v. Mackey (1898),
158 :^r. Y. 683.

This was a motion at Chambers to vacate an order to show
cause and a stay of proceedings granted by a judge of the Court
of Appeals for the purpose of enabling the appellant to move for
a reargument after a decision of affirmance. One of the grounds
of the motion was that, the remittitur having been filed and order
entered thereon below, the Court of Appeals had no jurisdiction
and its judge was without power to make the order. The opinion
proceeds as follows:

" The order to show cause and stay were granted under the
following state of facts: The case was decided by this court in
favor of plaintiff April 19, 1898; the remittitur was filed with
the clerk of the Supreme Court, city of INTew York, April 25th,
and order entered, making the judgment of this court the judg-

198 CouET OF Appeals Peactice. [Rule 16

ment of the Supreme Court, May 16th. On the 24th of June,
1898, — being the last day of the June session of the court, — the
counsel for the defendant and appellant applied for an order
requiring the plaintiff to show cause before the court on the first
Monday of October, 1898, why the return of the remittitur herein
should not be requested, and why a reargnment of this cause
should not be ordered, or, if such reargument should not be
deemed proper, ^vhy the remittitur should not be amended in
certain respects. This order was granted, with a stay of pro-
ceedings pending the hearing and determination of the applica-
tion. * * * This is a motion that the court request the
return of the remittitur 1)y the court below for the purposes of
the application. There is a very general misapprehension as to
the practice of the co\u-t on motions for reargument or to amend
the remittitur. It is often erroneously assumed that after the
filing of the remittitur in the court below, and order entered
thereon, this court is deprived of all jurisdiction in the cause.
In Sweet v. Mowry, 138 X. Y. 650, a motion for reargument
was granted, and a return of the remittitur requested. These
acts of the court were held to be in resumption of jurisdiction.
In Lawrence v. Church, 128 JST. Y. 324, a motion to amend the
remittitur was granted, and the order entered requested the return
of the remittitur by the court below, and when so returned it
was ordered to be amended. In Moffett v. Elmendorf, 153 X. Y.
674, a motion to amend remittitur was granted, and order entered
that the remittitur be recalled for that purpose. \ like motion
was granted in Buchanan v. Little, 155 X. Y. 635. This later
practice of the court is not necessarily inconsistent with the earlier
cases, which hold that this court has no jurisdiction to grant a
reargument or an amendment of the remittitur after the remittitur
is filed and acted upon in the court below. AVilmerdings v.
Fowler, 15 Abb. Prac. (X. S.) 86; Jones v. Anderson, 71 X. Y.
590; Cnshman v. Hadfield, ]5 Abb. Prac. (X. S.) 109; People
ex rel. Smith v. Village of Xelliston, 79 X. Y. 638. It is compe-
tent for this court to determine whether it will resume jurisdiction
for any purpose, and, having decided to do so, it then requests
the court below to return the remittitur so that reargument can
be had or the remittitur amended, as the case may be. It is
technically true that this court must be repossessed of the remit-

Rule IG] Remittitue. 199

titur before an order made in the cause is effectual, but there is no
objection to the return of the remittitur following the determina-
tion of this court to resume jurisdiction. The Supreme Court is
always reluctant to vacate its order and return the remittitur in
the absence of an expression by this court that it desires such a
course to be pursued. Hillyer v. Vandewater, 11 X. Y. Supp.
167. I am of opinion that there was jurisdiction to grant the
order to show cause herein."

Judgment not affected hy mere return of remittitur. — Although
a remittiti^r has been remanded to the Court of Appeals, it can-
not be said that the appeal in that court is still undetermined;
for, until the judgment (or order of dismissal) of the Court of
Appeals is vacated by that court, the judgment of the court below
entered thereon remains in full force and is binding. Murray v.
Jones (X. Y. City Ct. 1888), 2 jST. Y. Supp. 486, citing Xewton
V. Harris (1850), 8 Barb. 306, which see.

Where, after the entry of judgment below upon a remittitur
sent down from the Coiirt of Appeals, a motion for reargument
was granted, with a request to the court below to return the re-
mittitur, which was done, and upon the reargument the former
decision was reaffirmed, and the record sent back with a further
remittitur, ordering and adjudging as in the first remittitur, and
granting costs in the Court of Appeals, it was held that this left
the order and judgment entered below on the first remittitur im-
affected; that the resumption by the Court of Appeals of its
jurisdiction of the appeal operated simply to suspend proceedings
in the court below ; that the provisions of the first remittitur were
not altered by the subsequent decision; that the award of costs
in the latter related simply to costs on the second argument ; and
that, therefore, a motion to set aside the judgment entered on
the first remittitur was properly denied. Sweet v. Mowry (1893),
138 K Y. 650.

Staying filing of remittitur.

When filing of remittitur will he stayed hy court heloiv, for
motion for reargument. — After an appeal has been determined
by the Court of Appeals, the court below will not stay the filing
of the remittitur, upon an affidavit of intention to apply for
a reargument in the appellate court, and showing grounds

200 CouET OF Appeals Practice. [Kule 16

therefor. The court below ought not to question the decision of
the appellate court nor delay enforcing it, without some sanction
from that court or one of its judges. But where a judge of the
Court of Appeals grants an order to show cause why a reargu-
ment should not be had and directing that in the meantime the
remittitur be stayed if it had not been sent down, the court below
may properly order that the filing of the remittitur be stayed
pending the application to the Court of Appeals, even though the
remittitur had been sent down when the order to show cause was
made. Jarvis v. Shaw (IST. Y. Supr. Ot. 1863), 16 -Abb. Prac.
415.

(As to staying action on remittitur by order of a judge of the
Court of Appeals, see 'Rule XVIII.)

Amending remittitur.

Amendment, so as to show grounds of decision, denied. — A
motion to amend a remittitur by stating therein the grounds of
the decision, on a showing of an intent to appeal to the Supreme
Court of the United States, was denied, on the ground that the
appellant could procure the transmission of a duly authenticated
copy of the opinion of the court with the record, in People ex
rel. Schurz v. Cook (18S8), 111 X. T. 688.

Amendment, so as to permit further proof below, granted. —
Where an affirmance by the Court of Appeals is based upon a de-
fect of proof on a point not taken in the court below, the Court
of Appeals may amend its remittitur so as to show that fact and
that the affirmance is without prejudice to an application by the
appellant to the court below to reopen the case and allow a
rehearing on further proofs. Matter of Ingraham (1876), 64
K T. 310.

Neiv condition cannot he inserted. — The Court of Appeals
has no power to amend its remittitur by putting in some other
condition than one imposed, on amendment of prior proceedings,
by the court below. Symson v. Selheimer (1887), 1 Silv. Ct.
App. 455.

Cannot he amended on evidence outside record. — The Court
of Appeals cannot re-examine a case and correct a remittitur upon
affidavits or other evidence outside the i-ecord, making a case dif-
ferent from that brought up by the veenrd. Matter of Peugnet
(1876), 67 K Y. 441, 446.

Rule 16] Remittitue. 201

Motion to amend, when in effect a motion for reargument. — In
Genet v. Delaware and Hudson Canal Co. (1893), 137 N. Y.
626, a motion to amend the remittitur was denied, where it ap-
peared that the motion was in substance and effect a second
motion for a reargument after one had been made and denied,
brought more than a year after the remittitur had been sent
down by express direction of the coxirt, without any claim or
suggestion that any point or authority had been overlooked, and
practically and substantially amounting to an appeal from the
Second Division of the Court of Appeals.

Amendment of record below, as indicated by remittitur.

Where the Court of Appeals granted an amendment of a com-
plaint, under the power conferred by section 723 of the Code of
Civil Procedure, so as to show the character in which the plain-
tiff sued, it was considered proper that when its remittitur went
down, the complaint and the judgment as entered should be
amended in the respect indicated. Reeder v. Sayre (1877), 70
K Y. 180, 191.

Remittitur as evidence.

The remittitur is conclusive evidence as to the regularity of
the appeal, in an action on the undertaking. Hill v. Burke
(1875), 62 N. Y. 111.

Decisions, remittiturs, and opinions; procedure in reference to.

Decisions. — Decisions are handed down at the opening of court
on each Tuesday during sessions and on the last Friday of each
session, and are delivered to the clerk for entry, and issuance
of remittiturs thereon. The decisions are immediately furnished
to the newspaper associations for publication throughout the
State; and the clerk telegraphs the decision in each case to the
respective attorneys.

Remittiturs. — Remittiturs are made out as soon as possible
after the decisions are handed down, and are transmitted to the
attorney for the prevailing party in each case decided, unless a
■request has been received by the clerk from the attorney on the
other side to hold the remittitur; in that event, the remittitur
will be held for a reasonable time, if not demanded by the party

202 CouET OF Appeals Pkactice. [Rule IG

entitled thereto; if so demanded, it will be transmitted, unless a
stay shall have been obtained. The fee for a remittitur is two
dollars.

Opinions. — Opinions in cases decided are delivered to the
State reporter, as provided by section 210 of the Code of Civil
Procedure, and all requests for copies and inquiries in reference
to opinions should be addressed to him. The only opinions filed
with the clerk are those which are not reported by the State
reporter. Such opinions are deposited with the clerk immedi-
ately after the publication of the reports of other cases decided
at the same time, as prescribed by section 210 of the Code of
Civil Procedure. Until siich publication, all opinions are in
charge of the reporter.

Criminal causes.

The Code of Criminal Procedure provides as follows :

Judgment on appeal; amendment; execution of death sentence.

§ 543. Upon hearing the appeal the appellate court may, in cases where
an erroneous judgment has been entered upon a lawful verdict, or findiag nf
fact, correct the judgment to conform to the judgment, or finding; in all
other cases they must either reverse or affirm the judgment appealed from,
and in cases of reversal, may, if necessary or proper, order a new trial.
If the judgment of death is affirmed, the Court of Appeals, by ;in order
under its seal, signed by a majority of the judges, shall fl^ the week
during which the original sentence of death shall be executed, and such
order shall be sufficient authority to the agent and warden of any Str.te
prison for the execution of the prisoner at the time therein specified, and
tlie agent and warden must execute the judgment accordingly.

Judgment of appellate court, how entered and remitted.

§ 547. When the judgment of the appellate court is given, it must be
entered in the judgment book and it certified copy of the entry forthwith
remitted to the clerk \\itli whom the original judgment-roll is filed, or, if u,
new trial be ordered in anotlier county, to the clerk of that county, unless
the judgment be rendered in the absence of the adverse party, in which
case, the court may direct it to be retained, not exceeding ten days.

Decision and return to be remitted.

§ 548. The decision of the court and the return shall be remitted to
the court below in the same form and manner as in civil actions.

When jurisdiction of appellate court ceases.

§ 549. After the certificate of the judgment has been remitted as provided
in section five hundred and forty-seven, the appeUa.ce court l.'.'is no further
jurisdiction of the appeal, or of the proceedings thereon; and except as
provided in .section five hundred and forty-three, all ordi.'is, which r-ay be

Rule 17] Affirmaxce of Default. 203

necessary to carry the judgment into effect, must be made by the court to
-which the certificate is remitted, or by any court to which the cau^e may
thereafter be removed.

Provision for reassignment of time for execution of sentence
in capital cases, when the time originally fixed (§ 49'2) has
passed, is also made by sections 503 and 504 of the Code of Crim-
inal Procedure.

Amendment of entry of judgment. — The omission of the clerk
of the trial court in his entry of judgment to state the offense for
which the conviction was had does not render the sentence void
but the defect is amendable under section 543 of the Code of
Criminal Procedure and upon appeal to the Court of Appeals
other parts of the record may be referred to and if they furnish
evidence of the fact so omitted, the court may conform the entry
to the fact. People v. Bradner (1887), 107 N. Y. 1.

RULE XVII.
Affirmance by Default.

When a judgment or order shall be affirmed by the de-
fault of the appellant, the remittitur shall not be sent to the
court below, unless this court shall otherwise direct, until
ten days after notice of the affirmance shall have been
served [by the attorney for the respondent] on the attor-
ney for the appellant [and proof thereof filed with the
clerk.] Service of the notice shall be proved to the clerk
by affidavit, or by the written admission of the attorney on
whom it was served.

Object of the rule.

The object of this rule is to protect the appellant against sur-
prise, and to give him ample time to make his application for
relief, or to obtain an order staying proceedings to enable him to
do so. But if he neglects to avail himself of the benefit of the
time thus given, and the remittitur has gone down and been filed
in the court below, and the court has lost control of the case, it
is too late to move to open the default. Latson v. Wallace (Ct.
App. 1854), 9 How. Prac. 334.

(•See, under Rule XVI, as to when the jurisdiction of the Court
of Appeals ceases and it loses control of a case.)

204: CouET OF Appeals Peactice. [Rule IS

Practice of the clerk's office.

Unless tlie court stays the remittitur or directs it to issue other-
wise than is provided by the rule, the clerk will, on the expiration
of ten days after service on the appellant's attorney of notice of
an affirmance under Rule XV, proved as required by this rulo,
make up the remittitur and transmit it to the respondent's
attorney.

ETJLE XVin.
Enlarging Time — Revoking Orders.

The time prescribed by these rules for doing anj^ act may
be enlarged by the court or by any of the judges thereof;
and any of the judges may make orders to stay proceed-
ings, which, when served with papers and notice of motion,
shall stay the proceedings, according to the terms of the
order. Any order may be revoked or modified by the judge
who made it; or, in case of his absence or inability to act,
by any of the other judges.

Enlarging time.

The Code of Civil Procedure provides as follows:
How time enlarged, before its expiration.

§ 781. Where the time, "within which a proceeding in an action after its
commencement, must be taken, has begun to run, aad has not expired, it may
be enlarged, upon an aflBdavit showing grounds therefor, by the court, or by a
judge authorized to make an order in the action.

Copy of affidavit must be served.

§ 782. In a case specified in the last two sections, the affidavit, upon which
the order was granted, or a copy thereof, must be served with a copy of the
order; otherwise the order may be disregarded.

Belief after time has expired.

§ 783. After the expiration of the time within which a pleading must be
made, or any other proceeding in an action, after its commencement must be
taken, the court, upon good cause shown, may, in its discretion, and vipon such
terms as justice requires, relieve the party from the consequences of an omis-
sion to do the act, and allow it to be done; except as otherwise specially pre-
scribed by law.

When time cannot be extended.

§ 784. A court, or a judge, is not authorized to extend the time fixed by
law, within which to commence an action ; or to take an appeal ; or to apply
to continue an action, where u party thereto has died, or has incurred a dis-

Rule 18] Enlaeging Time — Revoking Oedees. 205

ability; or the time fixed by the court, -within which a supplemental complaint
must be made, in order to continue aji action; or an action is to abate, unless
it is continued by the proper parties. A court, or a judge, cannot allow
rither of tho.se acts to he done, after the expiration of the time fixed by law,
or by the order, as the case may be, for doing it; except in a case specified
in the next isection.

Qualification of last section.

§ 785. ¥\Tiere a. party, entitled to appeal from a judgment or order, or to
move to set aside a final judgment for error in fact, dies, either before or
after this chapter takes effect, and before the expiration of the time within
which the appeal may be taken, or the motion made, the court may allow the
appeal to be taken, or the -motion to be made, by the heir, devisee, or personal
representative of the decedent, at any time within four months after his death.

Staying proceedings.

Section 775 of the Code of Civil Procedure is as follows :

When stay of proceedings not to exceed twenty days.

§ 775. An order to stay proceedings in an action, for a longer time than
twenty days, shall not be made by a judge, out of court, except to stay pro-
ceedings under an order or judgment appealed from, or where it is made upon
notice of the application, to the adverse party, or in ciise.s where sjjecial pro-
Aision is otherwise made Ijy law.

Application of rule. — This rule, authorizing orders by a single
judge to stay proceedings, and making such orders effectual when
served with motion papers, has reference to general stays of pro-
ceedings in causes pending in the Court of Appeals. Cushman
V. Hatfield (1873), 52 IST. Y. 653; 15 Abb. Prae. (K S.) 109.

Staying filing of remittitur. — The Court of Appeals has con-
trol of its OAvn remittitur, in whosesoever hands it may be, until
it is actually and regularly filed in the court below; and an order
of any one of the judges temporarily staying the filing thereof is
valid and operative, although not accompanied by motion papers
or notice of motion. Cushman v. Hatfield, supra.

The above decision overrules a contrary statement as to the
power of a single judge of the Court of Appeals to stay a remit-
titur, in Lawrence v. Bank of Republic (N". Y. Supr. Ct. 1866),
6 Rob. 497 ; and it is now settled that the Court of Appeals does
not lose control of its remittitur until some action, in addition to
mere filing, has been taken on it in the court below. See People
ex rel. Smith v. Village of IS^elliston (1879), 79 :^^. Y. 638, under
Rule XVI, supra.

206 CorET ov Ai'peals Practice. [Eule 19-

Stay for more than twenty days. — The restriction imposed br
section 775 of the Code of Civil Procedure upon the power of a
judge out of court to stay proceedings for more than twenty days
except upon notice, does not apply to a stay for the purpose of a
motion for reargument of an appeal. Franklin Bank ISTote Co.
V. Mackey (1898), 158 N. Y. 683.

The filing of a remittitur in violation of an order of the Court
of Appeals, is, in legal effect, no filing. Marshall v. Macy ( Supr.
Ct. 1877), 5 Wkly. Dig. 90.

Revoking orders.

Inherent power of courts. — Every court of record, unless re-
strained by positive enactment, has the power, on motion, to
vacate its judgment or process to prevent a perversion thereof or
to frustrate oppression (Morgan v. Holladay [1874], 38 X. T.
Supr. Ct. 117) ; and this inherent power has not been impaired
by the Code of Civil Procedure. Levy v. Loeb (IST. Y. Supr. Ct.
1878), 5 Abb. N. C. 157.

ETJLE XIX.
Calendars.

When a new calendar is ordered by the court, tlie clerk
shall place thereon all causes in which notices of argument,
with proof or admission of service, have been filed in his
office; and, also, if ordered by the court, all other causes in
which the returns have been filed in his office; and the
causes so put on the calendar by the direction of the court
will be heard in their order as if regularly noticed.

Calendars; notice of argument.

Position on calendar regulated hy date or filing return. — A
notice of argiiment is of no effect, and a cause cannot be placed
on the calendar of the Court of Appeals, until the return has
been filed. Reformed Church v. Browai (Supr. Ct. 1862), 24
How. Prac. 89.

A motion to place a ca\ise on the calendar as of the time when
the return sh(juld have been regularly filed, was denied, for the
reason that such motions would derange the whole calendar.
Crain v. Rowley (Ct. App. 1849), 4 How. Prac. 79.

Eule 19] Galexdars. 207

The original date of filing return is not affected by amendment.
Livingston v. Miller (Ct. App. 1852), 7 How. Prac. 219.

Appellant not compelled to notice. — It is not a ground for dis-
missal of appeal that the appellant has failed to notice the case
for argument -and place it on the calendar ; if the respondent wishes
to expedite it, he may notice. Mchols v. MacLean (1885), 98
K T. 458.

Respondent not precluded, by noticing, from moving to dis-
miss.— A respondent is not precluded from making a motion to
dismiss the appeal by the fact of his having noticed the case for
argument and placed it on the calendar. Stoughton v. Levsds (Ct.
App. 1885), 2 How. Prac. (K S.) 331.

Terms or sessions of the court; when new calendar made.

Sessions and recesses. — The Judiciary Law, section 5-4, pro-
vides as follows :

Terms of Court of Appeals.

§ 54. The terms of the court of appeals must be appointed to be held,
at such times and places as the court thinks proper, and continued as long
as the public interest requires.

A term of the court may be appointed to be held in a building, other
than that designated by law for holding courts.

A term may be adjourned from the place where it is appointi^i to be
held, to another place in the same city.

One or more of the judges may adjourn a term, without day, or to a
day certain.

(Paragraph 1, from Code of Civil Procedure, § 196, para-
graphs 2, 3 and 4 from Code of Civil Procedure, § 197.)

The practice of the court is to hold sessions of four weeks or
more each with intervening recesses, usually of one or two weeks,
throughout the year, except during the summer when a recess is
usually taken from the latter part of June to the first Monday of
October. On adjourning for a recess, the court appoints and an-
nounces the date when the next session will begin. The sessions
are regularly held at the Capitol, in Albany, the court sitting
from 2 o'clock to 6 o'clock p. m. The court does not sit on
Saturdays.

Term fees. — The question whether the sessions of the court
are parts of one term continuing through the year, or are separate

208 CouET OF Appeals Peactice. [Eule 19

terms, has not been passed upon by the Court of Appeals, but it
has been raised in the courts of original jurisdiction, in connec-
tion with the taxation of term fees in bills of costs, under section
3251, subdivision 5, of the Code of Civil Procedure, which con-
tains the following, among the provisions for costs upon an appeal
to the Court of Appeals :

For each term, not exceeding ten, at which the oaus^ is on the calendar,
excluding the term at which it is argued, or otherwise finally disposed of.
ten dollars.

The Supreme Court has held, in Whiteman v. Leslie (1879),
1 Law Bull. 50, and in Powell v. Is". Y. C. & H. E. R. Co.
(1888), 14 Civ. Proc. E. 125, that there being no formal
assignment of terms in the Court of Appeals, it is to be considered
as holding only one term a year, commencing in January and
continuing, with recesses, through the year, and that the time of
making the calendar does not control; and, consequently, that
only one term fee for each calendar year can be allowed in any
cause. Other decisions on this subject, but made before the
adoption of the Code of Civil Procedure and based on earlier
statutory provisions as to terms of the Court of Appeals, are
Palmer v. De Witt (N". Y. Supr. Ct. 1872), 42 How. Prac.
466; Macy v. Nelson (Supr. Ct. 1875), 49 How. Prac. 204
and Carpenter v. Willett (IST. Y. Supr. Ct. 1865), 28 How.
Prac. 376 ; S. C, 3 Eob. 700.

Nexv calendars; when made. — A new calendar is not made at
any fixed time, but on or about the last day of any session at
which it is apparent that not enough causes remain undisposed
of to occupy the court for another session, a new calendar is
ordered to be made for the ensuing session. The order therefor,
which is published throughout the State, contains a statement of
the date on or before which returns and notices of argument for
the new calendar must be filed, and the date of the beginning of
the session at; which the new calendar will be taken up.

Notices of wrgument. — On the promulgation of such order for
a new calendar, notices of argument for the day specified in the
order must be served, and filed in the clerk's office, with proof or
admission of service, on or before the date fixed therefor in the
order, to entitle any cause to be placed on the calendar, unless the

Kule 20] Motion fob Eeaegument. 20y'

order for a new calendar contains a direction to place thereon all
causes in which returns have been tiled. But such a direction will
apply only to the general calendar, and a notice of argument, con-
taining a claim and statement of the ground of preference, as re-
quired by Eule XIV, must, in all cases, be served and filed, with
proof or admission of service, to entitle a cause to be placed on
the preferred calendar.

Making up calendar. — Causes not entitled to a preference are
placed on the general calendar in the order of dates of filing the
respective returns, except as a cause may be advanced on second
and subsequent appeals, or set back by reason of having been
passed or exchanged. Preferred causes (except appeals from
orders entitled to be heard on motion day) precede the general
calendar, in the prescribed classes of preference (see under Eule
XIV), being arranged in the several classes according to dates of
filing returns. Appeals from orders entitled to be heard on
motion day (see Kule XI), and criminal causes added after the
calendar is made up (see Eule IX), are given numbers after the
general calendar.

The court will not add cases to an existing calendar even though
they are entitled to preference, unless some question of public
importance is involved or the circumstances are extraordinary.
Goldberg v. Markowitz (1904), 179 X. Y. 596.

Xo civil causes, except appeals under Eule XI entitled to be
heard, can be added to the calendar after it is made up, except by
special order of the court, upon a motion duly made; and such
order will be granted only under extraordinary circumstances.

Motions to correct calendar. — Motions to correct the calendar,
or to change the position of a cause thereon, should be noticed for
and be made on the first motion day of the session at which a new
calendar is taken up.

KULE XX.
Motion for Eeargument.

[Motions for reargument must he submitted on printed
briefs, without oral argument, on notice to the adverse
party, stating briefly the ground upon which a reargument
14

210 CoTJET OF Appeals Practice. [Rule 20

is asked, and the points supposed to have been overlooked
or misapprehended by the court, with proper reference to
the particular portion of the case, and the authorities
relied upon.]

Eequisites of motion for rearg^ment.

Papers must show ivliat. — A motion for reargument will not be
entertained unless founded on papers clearly showing either that
some question, decisive of the case and duly submitted by counsel,
has been overlooked by the court, or that the decision is in conflict
with an express statute or a controlling decision overlooked by
the court, or to which its attention was not drawn through the
neglect or inadvertence of counsel. Mount v. Mitchell (1865), 32
W. Y. Y02.

In Marine Nat. Bank v. IsTat. City Bank (1874), 59 X. Y. 67,
73, the court stated that it proposed to adhere to the general rule
laid down in Mount v. Mitchell {supra), and that motions for re-
argument would not be entertained unless brought within it. The
same rule was applied in Auburn City Nat. Bank v. Hunsiker
(1878), 72 N. Y. 252, 259, and was reaffirmed in Fosdick v.
Town of Hempstead (1891), 126 K Y. 651. But in O'Brien v.
Mayor of New York (1894), 142 N. Y. 671, the court enter-
tained a motion for reargument in consideration of the extraor-
dinary importance of the case, although the motion was not based
on any of the grounds usually recognized by the court as required
to support a motion for reargument.

The papers on a motion for reargument should be sufficient to
enable the court to determine whether the decision requires cor-
rection in any respect ; hence, on a motion based on alleged errors
in the dissenting opinion of the court below, on which the case
was decided in the Court of Appeals, the case on appeal contain-
ing the opinion should be furnished. Anderson v. Continental
Ins. Co. (1887), 106 K Y. 661.

Motion for reargument — Practice. — While there is no pre-
scribed limitation of time within which a motion for reargument
may be made, it is understood that such a motion should be made
as soon as possible after the announcement of the decision, to
avoid the imputation of laches.

Eule 20] MoTio.Y foe, Reargument. 211

Reargwnent of capital case.— While in a capital case the ap-
pellant will not be held to the rule that points alleged to have been
overlooked by the court and made the basis of a motion for re-
argument must have been raised by counsel on the argument, yet,
where no important objection has been overlooked, the motion
must be denied ; the fact, however, that exceptions raised upon the
trial are not specifically alluded to or separately discussed in the
prevailing opinion does not indicate that they were not considered
before the decision of the appeal. People v. Patrick (1905) 183
K Y. 52.

Instances of granting a reargument are People ex rel. Wasson
V. Schuyler (1877), 69 K Y. 2i2, 245; Sweet v. City of Syra-
cuse (1891), 128 ]S". Y. 680, 129 N. Y. 316, 13S N. Y. 650;
Franklin Bank M"ot6 Co. v. Mackey (1898), 158 N. Y. 68:].

Record must present question. — A reargument must be on the
record used on the original argument, and if it does not contain
an exception presenting the question desired to be raised, a re-
argument cannot be had. Hunt v. Church (1878), 73 jST. Y. 615.

Insufficient grounds for motion.

Settlement of questions in other actions. — A reargument will
not be granted to obtain a settlement of questions which may arise
in other pending actions ; nor to obtain an elaborate expression of
reasons, when the only question involved in the appeal has been
necessarily passed upon by the decision of the court, without a
written opinion. Becker v. Howard (1876), 66 IT. Y. 5.

Death of partij ; motion hefore substitution had. — The fact that
at the time of the argument and decision of an appeal the plaintiff
was dead, though that fact was not then known to counsel nor dis-
closed to the court, is not a ground for a reargument, before sub-
stitution has been regularly had. Blake v. Griswold (Ct. App.
1886), 9 K E. 493.

Omission to present point. — The omission of counsel to present
on the argument or notice in his points a question arising in the
case is not, as a general rule, a ground for reargument; the
ordinary rule that an exception not raised on argument is to be
deemed abandoned will govern. Rogers v. Laytin (1880), 81
K Y. 642; Eno v. Mayor of K Y. (Ct. App.' 1877), 4 Wkly.
Dig. 246.

^'lii CoTJKT OF Appeals Practice. [Rule 20

Hardship resulting from judgment absolute. — It is not a
i^round for granting a reargument, after rendition of judgment
absolute against the appellant on an appeal from an order grant-
ing a new trial, that injustice will result to him from such judg-
ment, where no error was committed in granting the order ap-
pealed from. The result could have been avoided bv taking the
new trial ; and if parties stipulate their causes into the Court of
Appeals, instead of availing themselves of the new trial ordered
below, they necessarily assume the hazard of injurious conse-
quences. Godfrey v. Moser (1S7C), 06 X. Y. 2.50; Williams v.
Lindblom (1894), 14;) X. Y. OT."..

Amendment of defects since arginnent. — A reargument will not
be granted on proof of the amendment of defects by reason of
which the original decision had held that a corporation had not
been created — such proof not having been in the case below, to a
review of which the Court of Appeals is confined. X. Y. Cable
Oo. V. Mayor of X. Y. (1887), 104 X. Y. 1.

Amendment showing reversal on facts. — Where a General
Term order of reversal did not state that it was made upon the
facts, and upon appeal therefrom the counsel for the respondent
proceeded to .argument without applying for a postponement to
enable him to procure an amendment of the order, and after the
appeal was decided against him applied to the General Term and
obtained an amendment by inserting such a statement, a reargu-
ment upon the amended order was refused, it being held that the
respondent was concluded by his election to have the case decided
on the questions of law. Cudaliy v. Ehinehart (1802), IfS-j X. Y.
675.

Erroneous assunipllon thai pniid not in opinion iras overlool:ed.
— It is not the duty of the court in its opinions to satisfy counsel
in every case that the prn]ier judgment has been given and for
the right reason ; nor to answer every suggestion of, and review
every ciise cited by disappointed counsel. Counsel must assume
that the court is familiar with and not inattentive to its own de-
cisions, and has, with reasonable intelligence and industry, con-
sidered their ai'guments. Kamp v. Kamp (1S74), 59 X. Y. 212,
221.

It is not to be a-«umed liocause a fact appearing in the record
or authority cited on ai'gumont in the Court of Appeals, which is

Rule 20] Motion for Eeargument. 21^

deemed important by counsel, is not noticed or commented on in
the opinion that it has not been considered and due weight given
to it in arriving at the decision, and the omission to notice it is
not a ground for a motion for reargument. Dammert v. Osborn
(1894), 141 N. Y. 564; Carleton v. Lombard (1896), 149 ¥. Y.
601; Colonial City Traction Co. v. Kingston City E. E. Co.
(1897), 154 jST. Y. 493; and the fact that certain points made
upon the argument are not discussed in the opinion does not war-
rant the conclusion that they were overlooked. Burke v. Con-
tinental Ins. Co. (1906), 184 IT. y. 570; People v. Ladew
(1907), 190 N.Y. 543.

The omission of the court, when sanctioning a former decision,
to notice and discuss in its opinion supposed distinctions, is not
sufficient to warrant a supposition that they have escaped observa-
tion. Terry v. Wait (1874), 56 N. Y. 91.

Insufficient ground for motion for reargument. — It is not the
usual practice of the Court of Appeals to permit rearguments for
the purpose of correcting some error in the reasoning of the court
as expressed in the opinion, when it is admitted that the decision
itself is correct. Matter of Lyman (1899), 161 IST. Y. 119.

Proceedings in conference cJiamier. — Proceedings in the con-
ference chamber of the judges are not to be inquired into to sus-
tain a motion for reargument. Mason v. Jones (1850), 3 iST, Y,
375.

Alleged error in printed record. — In Burt v. Oneida Com-
munity (1893), 138 IT. Y. 649, a motion for reargument upon
the ground of an alleged error in the record on appeal, consisting
of a misstatement in the findings of the referee, was denied,
where it was admitted that a correct copy of the record had been
filed with the reporter of the court, and it appeared that the copies
handed up on argument and upon which the court rendered its
decision agreed with this correct copy, and that if there were any
faulty or defective copies printed they were not before the court
and could not have affected its determination.

Belief by new trial, rather than by rear^ment.

A motion for reargument was denied upon the ground that, as
a new trial had been ordered and the remittitur had gone down,
either party could, if dissatisfied with the result, bring the case

214: Court of Appeals Practice. [Eule 20

again to the Court of Appeals for final disposition, in MecL &
Trad. Bank v. Dakin (1873), 54 N. Y. 681.

The Court of Appeals, in People v. Ballard (1892), 136 IST. Y.
639, refused a reargument of an appeal determined in the Second
Division of that court, upon a question claimed to have been over-
looked, where it appeared that such question might be determined
upon the new trial which had been ordered by the judgment
rendered.

In Griggs V. Day (1893), 137 JST. Y. 542, a motion for a re-
argument upon the ground that the opinion of the court declared
certain securities to be valueless, although the referee had re-
fused so to find, was denied, it appearing that the expression in
the opinion could not conclude the party on the new trial which
had been granted.

Motion after remittitur has gone down.

After the remittitur has gone down and been filed and acted
upon in the court below, the Court of Appeals is without juris-
diction to entertain a motion for reargument (Cochran v. Ingersoll
[1876], 66 ]Sr. Y. 652; People ex rel. Smith v. Village of Nellis-
ton [1879], 79 N". Y. 638) ; and the remittitur must be returned
before a reargument can be granted (Wilmerdings v. Fowler [Ct.
App. 1873], 15 Abb. Prac. [IST. S.] 86.)

But it is competent for the Court of Appeals to determine
whether it will resume jurisdiction for any purpose, and, having
decided to do so, it then requests the court below to return the re-
mittitur, so that reargument can be had or the remittitur amended,
as the case may be. Franklin Bank l^ote Co. v. Mackey (1898),
158 K Y. 683.

(iSee further, as to restoration of jurisdiction by return of re-
mittitur, under Eules XI and XYl, and as to stay of proceedings
under Eule XVIII.)

Judgment on remittitur not affected hi/ renrfjiunent. — A recall
of the original remittitur and a reargument of the case in the
Court of Appeals, resulting in .a reaffirmance by that court of its
first decision, do not of themselves affect proceedings already had
in the court below upon the remittitur or the judgment entered
thereon. Sweet v. Mowry (1893), 138 X. Y. 650.

Reargument — Time within which motion should he made. —
Mthough there is no time limit prescribed by statute or the rules.

Eule 20] Motion foe Eeaegument. 215

within which a motion for reargument must be made, still, as
matter of convenience, to avoid the imputation of laches, and to
prevent complications arising from enforcement of the decision on
the original argument, the motion should be made as soon as
possible after the rendition of the decision.

Motion for reargument in guise of a motion to amend re-
mittitur.— In Genet V. Delaware and Hudson Canal Co. (1893),
137 N. Y. 626, a motion to amend the remittitur was denied,
where it appeared that the motion was in substance and effect a
second motion for a reargument after one had been made and
denied.

Procedure on moving for reargument.

The remittitur. — If it is intended to move for a reargument, a
stipulation should be obtained from the other side, or an order
from one of the judges (see Rule XVIII), staying the remittitur,
in case it has not gone down, or staying proceedings thereon in
case it has gone down but not been acted upon. If the remittitur
has been filed and action taken thereon in the court below, appli-
cation should be inserted in the moving papers for a reargument,
and the court should be asked therein to request the return of the
remittitur and thereupon to grant a reargument.

Motion "papers. — Motions for reargument may be noticed for
any Monday when the 'Court is in session. As such motions are re-
quired to be submitted without oral argument, the original motion,
papers and notice, with joroof or admission of service, and eighteert
copies of the printed briefs of each side on the motion, should be
filed with the clerk, on or before the Friday preceding the day
named in the notice. (See under Eule XI, page 157.)

Order. — On decision of the motion, the clerk drafts and enters
the proper order, and transmits a certified copy thereof to the
attorney for the prevailing party. The fee for entering the order
and furnishing a certified copy thereof is one dollar.

RULES FOR THE ADMISSION OF ATTORNEYS AND
OOUNSELORS-AT-LAW.*

OEDER ADOPTING RULES.

In the Court of Appeals.

Dec. 20, 1906.
Ordered, That the following amended Eules regulating
the Admission of Attorneys and Counselors-at-Law be and
the same hereby are adopted, in pursuance of the provi-
sions of the Code of Civil Procedure, such Eules to take
effect July 1, 1907.

RULE I.

Admission and License.

No person shall be admitted to practice as an attorney
or counselor in any court of record in this State, without a
regular admission to the bar and license to practice granted
by [the] Appellate Division of the Supreme Court.

Changes in the Rule.

This rule is taken from the first clause of former Rule I. The
other portions of that rule, which provided for the examination
of applicants for admission, by the justices of the General Terms
of the Supreme Court, or by a committee of lawyers appointed
by them, have been superseded hy the amendment of 1894 to
former section 56 of the Code of Civil Procedure (as amended,
chap. 946, L. 189'5'), creating a State Board of Law Examiners,
now embodied in the Judiciary Law, which is given below.

* These rules, as now numbered and arranged, were adopted October 22,
1894, and took effect January 1, 1895. ' Certain amendments were made on
December 2, 1895, to take effect January 1, 1R9G, and are hereinafter referred
to as amendments of 1896. When "former rules" are mentioned, the refer-
ence is to the rules which were adopted October 28, 1892, and were in force
•tintil January 1, 1895; and, when any rule or provision is said to be "new,"
it is meant that it was introduced by the revision of 1894, which went into
effect January 1, 1895. The amendments made on December 20, 1906, in
effect July 1, 1907, are indicated by being printed in brackets, and those
made April 24, 1908, in effect June 1, 1908, by being printed in italics.

Rule 1] Admission of Attorneys. 217

Examination, admission and suspension.

The Judiciary Law provides as follows :

Power of Court of Appeals as to admission of attorneys and counselors.

§ 53. 1. The Court of Appeals may from time to time make, alter and
amend, rules not inconsistent with the Constitution and statutes of the
State, regulating the admission of attorneys and eounselors-at-law, to praetic.;!
in all the courts of record of the State.

2. The court may make such provisions as it shall deem proper for
admission to practice as attorneys and counselors, of persons who have
been admitted to practice in other states or countries.

3. The court shall prescribe rules providing for a uniform system of
examination of candidates for admission to practice as attorneys and coun-
selors, which shall govern the State Board of Law Examiners in the per-
formance of its duties.

4. The rules established by the Court of Appeals, touching the admission
of attorneys and counselors to practice in the Comts 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 ia adopted, be filed in the oflSce of the Secretary of State.

0. Nothing contained in this chapter prevents the Court of Appeals from
dispensing, in the rules established by it, with the whole or any part of
the stated period of clerkship required from an applicant, or with the
examination where the applicant is a graduate of the Albany law school,
being the law department of the Union University, or of tlie law depart-
ment of the University of The City of New York, or of the law school of
Columbia College, or of the law school of the University of Buffalo, or the
New York Law School, or the college of law, Cornell University, or of the
school of law, Syracuse University, or the Brooklyn Law School of St.
Lawrence University, or Fordham University Law School, and produces his
diploma upon his application for admission. (Formerly embodied in the Code
of Civil Procedure, sections 193, 5G, 57, 58.)

Appointment and compensation of State Board of Law Examiners.

§ 56. The members of the State Board of Law Examiners shall be ap-
pointed from time to time, by the Court of Appeals, as provided in section
461 of this chapter. The Court of Appeals shall fix the compensation of
the members of the said board. (From the Code of Civil Procedure, section
56, part.)

Examination and admission of attorneys.

§ 460. A citizen of the State, of full age, applying to be admitted to
practice as an attorney or counselor in the Courts of Record of the State,
must be examined and licensed to practice as prescribed in this chapter.
(From Code of Civil Procedure, section 56, part.)

State Board of Law Examiners continued.

§ 461. The State Board of Law Examiners is continued. Said board
shall consist of three members of the bar, of at least ten years' standing,

218 Court of Appeals Peactice. [Rule 1

who shall be appointed, from time to time, by the Court of Appeals, and
shall hold office, as a member of such board, for a term of three years,
and until the appointment of his successor. (From the Code of Civil
Procedure, section 50, part.)

Times and places of examinations.

§ 462. There shall be examinations of all persons applying for admis-
sion to practice as attorneys and counselors-at-law at least twice in each
year in each judicial department, and at such other times and places as
the Court of Appeals may direct. (From Code of Civil Procedure, section
56, part.)

Certification by State Board of successful candidates.

§ 463. The State Board of Law Examiners shall certify to the Appellate
Division of the Supreme Court of the department in which each candidate
has resided for the past six months every person who shall pass the
examination, provided such person shall have in other respects complied
with the rules regulating admission to practice as attorneys and counsel-
ors, which fact shall be determined by said board before examination.
(From Code of Civil Procedure, section 56, part.)

Fee for examinations.

§ 465. Every person applying for examination for admission to practice
as an attorney and counselor-at-law shall pay such fee, not to exceed
fifteen dollars, as may be fixed by the Court of Appeals as necessary to
cover the cost of such examination. On payment of one examination fee
the applicant shall be entitled to the privilege of not exceeding three
examinations. (From Code of Civil Procedure, section 56, part.)

Attorney's oath of office.

§ 466. Each person admitted as prescribed in this chapter 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. (Prom
Code of Civil Procedure, section 59, part.)

Race or sex no bar to admission to practice.

§ 467. Race or sex shall constitute no cause for refusing any person
examination or admission to practice. (From Code of Civil Procedure,
section 56, part.)

Admission to and removal from practice by Appellate Division.

§ 88. 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

liiile 1] Admission of Attohneys. 219

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. (From Code of Civil Procedure, section 56.)

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 pro-
ceedings 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 application or admission shall be sufficient cause for the revocation of
his license by the Appellate Division of the Supreme Court granting the
same. (From Code of Civil Procedure, sections 56, 57.)

3. Whenever any attorney or counselor-at-law shall be convicted of a
felony, there may be presented to the Appellate Division of the Supreme
Court «, certified or 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. (From Code of Civil Pro-
cedure, section 67.)

4. Upon a reversal of the conviction for felony of an attorney and
counselor-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. (From Code of Civil Pro., section 67.)

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 coimselor, 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. (From Code of Civil Procedure, section 68.)

Suspension of attorney from practice must be on notice.

§ 476. Before an attorney or counselor is suspended or removed as pre-
scribed in section eighty-eight 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 or
counselors. (From Code of Civil Procedure, section 68.)

Attorney convicted of felony shall cease to be attorney.

§ 477. Any person being an attorney and counselor-at-law, who shall
be convicted of a felony, shall, upon such conviction, cease to be an attorney

220 Court of Appeals Peactice. [Rule 1

and counselor- at-law, or to be competent to practice as such. (From Code
of Civil Procedure, section 67.)

Suspension or removal of attorney effective in all courts.

§ 478. The suspension or removal of an attorney or counselor, by the
Supreme Court, operates as a. suspension or removal in every court of the
State. (From Code of Civil Procedure, section 69.)

Action against attorney for lending his name in suits and against persons
using name.

§ 479. If a person knowingly permits a person not being his general
law partner, or a clerk in his office, to sue out a mandate, or to prosecute
or defend an action in his name, he, and the person who so uses his name,
each forfeits to the party against whom the mandate has been sued out,
or the action prosecuted or defended, the sum of fifty dollars, to be recovered
in an action. (Code of Civil Procedure, section 72.)

Duties of clerk of Appellate Division as to person admitted to practice law.
§ 264, subd. 6, of the Judiciary Law provides as follows:
6. The clerk of each department of the Appellate Division, upon the
payment of the fees allowed by law, must deliver to the person admitted
to practice as an attorney and counselor a certificate under his hand and
official seal, stating that such person has been so admitted, and that ho
has taken and subscribed the constitutional oath of office as prescribed in
section 466 of this chapter. (From Code of Civil Procedure, section 59.)

Contempts punishable civilly.

§ 753. A court of record has power to punish, by fine and imprisonment,
or either, a neglect or violation of duty, or other misconduct, by which a
right or remedy of a party to ii. civil action or special proceeding, pending
in the court may be defeated, impaired, impeded, or prejudiced, in either of
the following cases:

1. An attorney, counselor * * * in any manner duly selected or ap-
pointed to perform a judicial or ministerial service, for a misbehavior in his
office or trust or for u, wilful neglect or violation of duty therein; or for
disobedience to a, lawful mandate of the court, or of a judge thereof, or of
an officer authorized to perform the duties of such a judge.

3. A party to the action or special proceeding, an attorney, counselor,
or other person, for the non-payment of a sum of money, ordered or
adjudged by the court to be paid, in a case where by law execution cannot
be awarded for the collection of such sum; or for any other disobedience to
a lawful mandate of the court.

4. A person, for assuming to be an attorney or counselor, or other
officer of the court, and acting as such without autliority; ■ " ** (Formerly
Code of Civil Procedure, section 14.)

Rule 1] Admissiox ok Attorneys. 231

The of5ce of attorney.

An attorney is an officer of the courl. — Attorneys, receiving
their authority from the court, are deemed its officers, and their
license is an assurance, not only of their competency, but of their
character and title to confidence. The direct control of the
courts over them as officers, by -way of summary discipline and
punishment to compel them to performance of their duty, or to
suspend or degrade them, is retained and exercised as a guaranty
of their fidelity. Hamilton v. Wright (1868), 37 X. Y. 502.

An attorney is an officer of the court and is not a public offiicer
of the State in such a sense as to be entitled to have his right to
the offiice determined by a legal action; his right to practice is,
therefore, the subject of inquiry and examination by the General
(Term of the Department in which he practices, and if he has
obtained his license without authority of law, it may be revoked
by a summary proceeding, brought by any person who can supply
the information necessary to justify proper action by the court.
Matter of Burchard (1882), 27 Hun, 429.

Tenure of office; residence. — ^Attorneys are not public officers
within the meaning of the statute which provides that every office
shall become vacant by the incumbent ceasing to be an inhabitant
of the State. Their tenure of office is during life, subject to re-
moval or suspension by the courts. But while this is so, the
courts have always required that an attorney should reside within
the State; and an attorney-at-law, who is a nonresident of this
State, has no authority or right to, and cannot practice in the
courts of the State. Richardson v. Brookljoi City & ISTewtown
R B. Co. (Supr. Ct. 1862), 22 Hiow. Prac. 368.

An exception to this rule has been created by section 470 of
the Judiciary Law, which provides that —

A person, regulaa-ly admitted to practice as an attorney and counselor, in
the courts of record of the State, whose office for the transaction of law busi-
ness is -within the State, may practice as snch attorney or counselor, although
he resides in an adjoinin;? State. (From Code of Civil Proc, § 60.)

Suspension or clisharmcnt. — 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 and rules authorizing it ; that no

222 CouET OF Appeals Practice. [Eule 1

substantial legal right of the accused has been violated; that no
prejudicial error has been committed in the reception or exclu-
sion of testimony, and that there is some evidence to sustain the
findings upon which the order is based. The power and discre-
tion 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 X. Y. 143.

Right to admission confined to citizens of the State.

Limitation, not prohibited iy Federal 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 to the Federal Constitution,
which provides that " No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States." Bradwell v. The State (187'2), 16 Wall. 130.

The power of a State to prescribe the qualifications for admis-
sion to the bar of its own courts, is unaffected by the Federal Con-
stitution, and the Supreme Court of the United States cannot in-
quire into the reasonableness or propriety of the rules it may
establish. Id.

A law school graduate may apply for admission in a depart-
ment other than where he resides. Matter of Burchard, 27
Hun, 429.

Aliens. — -An alien may not, imder the provisions now in force,
be admitted to practice as an attorney and counselor-at-law in
this State, although it seems that under the present Constitution
of the Siate the Legislature has power to authorize the admission
of persons not citizens of the United States. Matter of O'Neill
(1882), 90 N. Y. 584. See Matter of Maggio, 27 App Div. 129.

This disability of aliens is to be noticed in connection with
Eule II, which provides for the licensing of persons who have
practiced for three years in another country. An applicant under
that rule must, as well as applicants in general, be a citizen of the
United States at the time of making his application; and the
fact of his having declared his intention to become a citizen is
not enough. Id., and see, also, under Eule II.

One who applies for examination for admission after one year's
law study in this State, on the ground of having been admitted
and remained for one year as a practicing attorney in another

Riile 1] Admission of Attoeneys. i'ii3

State or country, as provided by subdivision second of Eule IV,
is, by tbe terms of subdivision first of that rule, required to prove
that he is a citizen of the United States and a resident of the
State of New York, as in said rules provided.

Nonresidents. — A nonresident citizen of the United States was
not entitled, as matter of right, to admission to the bar of this
State even before the enactment of section 56 of the Code of Civil
Procedure, which limits the right to " a citizen of the State," —
as was held in Matter of Henry (1869), 40- N. Y. 560.

The question there arose under the clause in the Constitution
of 1846, then in force, which provided that "Any male citizen of
the age of twenty-one years, of good moral character, and who
possesses the requisite qualiiications of learning and ability, shall
be entitled to admission to practice in all the courts of this
State ; " and the words " any citizen " were construed to mean
" any citizen of this State." This clause was omitted from the
Constitution by the amendment of 1869, and at present the whole
subject is left to the Legislature and the courts.

The verbal difference between the phrase used in the statute
(§56, Code Civ. Proc.) " a citizen of the State," and that in the
rules (Rule IV, subd. 1), " a citizen of the United States * * *
and a resident of the State," is not a real variance, as, by force
of the fourteenth amendment to the Federal Constitution, citizens
of the United States are citizens of the State wherein they reside.

Section 58 of the Code (section 53 [subdivision 5], Judiciary Law) ;
law schools.

The authority conferred upon the Court of Appeals by section
58 of the Code of Civil Procedure, to dispense with certain re-
quirements in the case of graduates of the law schools named
therein, has not been exercised, except in so far as attendance at
those institutions, in common with other law schools, is placed by
the rules upon the same footing as serving a clerkship in a law
office, by permitting the whole or any part of the required period
of law study precedent to examination for admission to be passed
either in attendance at a law school or in serving a clerkship in a
law office. See Rule V, subdivision 1. The section was
adopted in order that the courts might not be compelled, as they
were by former laws, to admit graduates of the law schools named,
unconditionally. See Matter of Burchard (1882), 27 Hun,

224 CouiiT OF Appeals Pkactic-E. [Eule 1

429. The adoption of the section was accompanied by a repeal
of the acts which had required graduates of the law schools to be
admitted on production of their diploma, and although the eifect
of the repeal was postponed by a saving clause (Laws of 18*77,
chap. 4-17, § 3, subd. 17), and by several subsequent temporary
acts, it became operative in 1882, and at present graduates of all
law schools are subject to the rules and to the requirement of ex-
amination equally with other candidates for admission.

The effect of section 58 of the Code " is merely to refer the
entire matter to the Court of Appeals, in the confidence that that
high tribunal will establish such rules as will most effectually
promote the true interests of the law schools, as well as of the legal
profession and the people generally." Commissioners' note to §
58, Throop's Code Civ. Proc. (ed 1880).

Corporations not to practice law.

■Section 280' of the Penal Law provides as follows:

It shall be unlawful for any corporation to practice or appear as an at-
torney-at-law for any person other than, itself in any court in this state or
before any judicial body, or to make it a business to practice as an attorncy-
at-law, for any person other than itself, in any of said courts or to hold itself
out to the public as being entitled to practice lati"", lor to render or furnish
legal services or advice, or to furnish attorneys or counsel or to render legal
services of any kind in actions or proceedings of any nature or in any other
way or manner, or in any other manner to assume to be entitled to practice
law or to a»s\ime, use or advertise the title of lawyer or attorney, attorney-
at-law, or equivalent terms in any language in such manner as to convey the
impression that it is entitled to practice law, or to furnish legal advice,
services or counsel, or to advertise that either alone or together with or by
or through any person, whether a duly and regularly admitted attorney-at-
law, or not, it has, owns, conducts or maintains a law office or an office for
the practice of law, lor for furnishing legal advice, services or counsel. It
shall be unlawful further for any corporation to solicit itself or by or through
its officers, agents or employees any claim or demand for the purpose of
bringing an action tliereon or of representing as attorney-at-law, or for fur-
nishing legal advice, services or counsel to, a person sued or about to be
sued in any action or proceeding or against whom an action or proceeding
has been or is about to be brought, or who may be affected by any action or
proceeding which has been or may be instituted in any court or before any
judicial body, or for the purpose of so representing any person in t!ie pursuit
of a,ny civil remedy. Any corporation violating the provisions of this section
shall be lialile to a fine of not more than five thousand dollars and every

Rule 1] Admission of Attorneys. 226

officer, trustee, director, agent, or employee of such corporation wlio directly
or indirectly engages in any of the acts herein prohibited or assists such
corporation to do such prohibited acts is guilty lof a misdemeanor. The fact
that any such officer, trustee, director, agent, or employee shall be a. duly
and regularly admitted attorney-at-law shall not be held to permit or allow
any such corporation to do the acts prohibited herein nor shall such fact be
a defense upon the trial of any of the persons mentioned herein for a violation
of the provisions of this section. This section shall not apply to any cor-
poration lawfully engaged in a business authorized by the provisions of any
existing statute, nor to a corporation lawfully engaged in the examination
and insuring of titles to real property, nor shall it prohibit a corporation
from employing an attorney or attorneys in and about its own immediate
affairs or in any litigation to which it is or may be a party, nor shall it
apply to organizations organized for benevolent or charitable purposes, or
for the purpose of assisting persons without means in the pursuit of any
civil remedy, whose existence, organization or incorporation may be approved
by the Appella,te Division of the Supreme Court of the department in which
the principal office of said corporation may be located. [Added by L. 1909,
ch. 483, in effect September 1, 1909.]

Corporations cannot practice law.

The Appellate DivisioB is only authorized by section 280 of
the Penal Law to approve the right of a corporation to practice
law where it is organized for benevolent or charitable purposes, or
for the purpose of assisting persons without means in the pursuit
of any civil remedy. The court will not authorize a business
corporation to practice law where it is organized to do a general
law and collection business to make agreements with and employ
attorneys and other representatives for the transaction of such
business, even though it appears that the greater part of its bus-
iness is the collection of claims without resort to law. So far as
the business of such corporation is confined to the collection of
claims without legal proceedings, it is not within section 280 of the
Penal Law, which prohibits the practice of law by corporations.
Matter of Associated Lawyers' Co. (1909), 134 App Div. 350;
Matter of Co-operative Law Co. (1910), 198 N. Y. 479.

Title guaranty companies.

The prohibition against corporations practicing law does not
cover title guaranty companies, organized under the Insurance
Law and authorized to examine titles, guarantee the correctness
15

22'6 CouBT OF Appeals Pbactioe. [Rule 2

of searches and insure against loss by reason of defective titles.
The searching of titles is open to all and guaranty companies may
employ either lawyer or laymen to transact their business. Mat-
ter of Co-operative Law Co. (1910), 198 N. Y. 479.

RULE n.

Admission After Practicing Three Years in Another State or Country, Etc.

Any person who has been admitted to practice, and has
practiced three years as an attorney and counselor in the
highest court of law in another State, and any person who
has thus practiced in another country, or who, being an
American citizen and domiciled in a foreign country, has
received such diploma or degree therein as would entitle
him, if a citizen of such foreign country, to practice law
in its courts, may, in the discretion of [the] Appellate Divi-
sion of the Supreme Court, be admitted and licensed with-
out an examination. But he must possess the other qualifi-
cations required by these rules and must produce a letter
of recommendation from one of the judges of the highest
court of law of such other State or country, or furnish
other satisfactory evidence of character and qualifications.
A person who resides in an adjoining State, upon com-
pliance with this rule, may, without change of residence, be
admitted to practice on sufficient proof that he intends
forthwith to open and permanently to maintain an office for
the transaction of law business in this State, (Amended
June 24, 1903.)

Changes in the Rule.

This rule is substantially the same as former Rule VTI, the
only material change consisting in making admission without ex-
amination dependent upon the discretion of the Supreme Court
in all cases within the rule ; while in the former rule the right to
such admission in the case of one who had been admitted and had
practiced three years in another State was not so qualified. The
last sentence was added in 1903.

Rule 2] Admission of Attoknets. 227

(luaMcations of applicants.

The " other qualifications required by these rules," which it is
understood all applicants for admission without examination
under this rule must possess, are good moral character (see Rule
III), citizenship of the United States, full age, and an actual
and not constructive residence in the State of New York, for not
less, etc. (See Rule IV.)

It has been expressly decided by the Court of Appeals that one
who seeks admission under this rule, upon the ground that he
has practiced for three years in another country, must show,
among " the other qualifications required by these rules," that he
is a citizen of the United States at the time of making his appli-
cation; the fact that he has declared his intention to become a
citizen is not sufficient. Matter of O'Neill (1882), 90 W. Y. 584.

In that case, it appeared that William L. O'lSTeill, a British
subject, had practiced as an attorney-at-law in England from
187'5 to 1881. Upon proof of that fact, and upon satisfactory
evidence of his character and proof of age, and of his having
declared his intention to become a citizen, the Supreme Court, at
General Term in the Second Department, in May, 1881, made an
order admitting him to practice as an attorney and counselor-at-
law in the courts of this State. O'Neill so practiced from that
time until, upon the petition of one Newman, after notice to and
hearing O'Neill in his own behalf, the General Term, in Septem-
ber, 1882 (see 27 Hun, 5990, made an order vacating its order ad-
mitting O'Neill, on the groimd that it had no power or jurisdic-
tion to grant such order, and directed that his name be stricken
from the roll of attorneys and counselors.

From this last order O'Neill appealed to the Court of Appeals,
where the action of the General Term was affirmed in December,
1882, with the following opinion by Tracy, J., in which an inter-
esting history of this rule is given:

By the Constitution of 1846 it waa provided, that "any male citizen of
the age of twenty-one years, of good moral character, and who possesses the
requisite qualifications of learning and ability, shall he entitled to practice
in all the conrts of this State." (Const, of 1846, art. 6, § 8.) This article of
the Constitution of 1846 was superseded hy the new article which took effect

228 CotTET OF Appeals Peactxce. [Kule 2

on the Ist of January, 1871. The admission of attorneys and counselors is
now regulated by statute. We have no doubt of the power of the Legisla-
ture to admit persons not citizens to practice as attorneys and counselors
of the courts of this State. The question to be determined is whether, by
the law of the State in force at the time of the appellant's admission, citizen-
ship was among the qualifications required to entitle a person to be admitted
as an attorney. By section 3, chapter 486, Laws of 1871, it is provided that
" every male citizen of the age of twenty-one years, hereafter applying ♦ * ♦
shall be examined by the justices of the Supreme Court, or a committee ap-
pointed by said court at a General Term thereof, and if such person so applying
shall be found to have complied with such rules and regulatiions as may be
prescribed by the Court of Appeals, and shall be approved by said justices
of the Supreme Court for his good character and learning, the court shall
direct an order," etc. The rules adopted by the Court of Appeals in pur-
suance of this statute provided that, " to entitle an applicant to an examina-
tion as an aittorney, he must prove to the court, among other things, that he
is a citizen of the United States, twenty-one years of age, and a resident of the
department within which the application is made, and that he is a person of
good moral character.'' (Rule 2, 1871.) By Rule 8 it was provided, that
" perrons whi hav? been admitted and have practiced three years as attorneys
in the highest courts of law in another State may be admitted without exam-
ination to practice as attorneys, solicitors and counselors in the courts of
thi<; St'^t" b'lf s c'' persons mus' hive been resi-ients of this State before
appljring for admission." In 1877 the rules were so amended that "persons
who have been admitted as attorneys in the highest courts of another State
may be admitted to examination as attorneys and counselors, if they have
served a regular clerkship of one year in the office of a practicing attorney
of the Supreme Court of this State, and shall in other respects be entitled to
6uch examination." As an applicant for examination is required to prove
that he is a citizen of the United States, this rule plainly requires that one
who seeks an examination on the ground that he has been admitted as an
attorney of another State, must ibe a citizen of the United States. In 1880,
Rule 8 of 1871 became Rule 7, and was amended by adding after the clause
providing for the admission of practitioners of three years' standing from
other States, the following: "And the General Term of the Supreme Court
may, in its discretion, so admit and license any person who has thus practiced
in another country, but he must possess the other qualifications required by
these rules, and must produce a letter," etc. It is under this clause, first
inserted in 1880, that the appellant was admitted. It will be observed that
the clause applicable to the admission of practitioners of three years' standing
from another State, as first adopted, required that such persons should have
become residents of this State before applying for admission; but when the
clause was added allowing the General Term in its discretion to admit and
license any person who has thus practiced in another country, the clause
•requiring a person to have become a resident before making the application
was dropped, and in its stead was inserted the requirement that he must

Eule 3] Admission of Attoenets. 229

possess the other qualifications required by these rules. The amendment pro-
viding for the admission of persons who have practiced for three years in
another country, was made to meet the case of a citizen of the United States
who had thus practiced in another couBtry. But to guard against conferring
the right of admitting persons not citizens of the United States, under the
general language of this amendment, the other change was made in the rule
by which the applicant, whether he be a practitioner from another State or
from another country, is required to possess the other qualifications required
by these rules. There can ba no doubt that citizenship is among " the other
qualifications " required of those who apply for an examination to be admitted
as attorneys, and it follows that one who seeks admission upon the ground
that he has practiced for three years in the courts of another country must
show that he is a citizen of this country at the time of mailing his application.
The appellant, not being a citizen, was not entitled to admission, and the
action of the General Term in revoking his license was proper and should be
affirmed, without costs.

RULE III.

Pierequisites to Admission on Examination.

All other persons may be admitted and licensed upon
producing and filing with the court the certificate of the
State Board of Law Examiners that the applicant has satis-
factorily passed the examination prescribed by these rules
and has complied with their provisions, and upon produc-
ing and filing with the court evidence that such applicant is
a person of good moral character, which [must] be shown
by the [affidavits of two reputable persons of the town or
city in which he resides, one of whom must be a practicing
attorney of the Supreme Court. Such affidavits must state
that the applicant is, to the knowledge of the affiant, a per-
son of good moral character, and must set forth in detail
the fact upon which such knowledge is based; but such
affidavits shall not be conclusive and the court may make
further examination and inquiry] .

Changes in the Rule.

The first clause of this rule is new, being in conformity with
the amendment of 1894 to section 56 of the Code of Civil Pro-

230 Court of Appeals Peactice. [Rule 3

cedure. The remainder of the rule is taken from subdivision
second of former Rule IV. with the substitution of the concluding
words, " the court may make further examination and inquiry,"
for the words " the court must be satisfied on this point from ex-
amination and inquiry."

Certificate of State Board of Law Examiners.

For the statutory provision for a certificate from the State
Board of Law Examiners to the Appellate Division of the Su-
preme Court of the successful passing of examination, as a con-
dition precedent to admission by the Appellate Division, and for
the determination by the board, before examination, of the fact
of compliance, by candidates for admission, with the rules regu-
lating admission to practice, see under Rule I.

Action of Appellate Division on application for admission; when
reviewable.

It was held in Matter of Cooper (I860), 22 K Y. 67; S. C.
suh nom. Matter of Graduates, 11 Abb. Prac. 301, that in the
admission of attorneys and counselors, the Supreme Court acts
judicially, and its function is not of an executive character ; that
an application for such admission is a special proceeding, and an
order made therein denying the applicant's right to admission is
a final order, affecting a substantial right, and therefore appeal-
able to the Court of Appeals. That court, consequently, enter-
tained the appeal, and reversed the order.

In this case the Supreme Court had held that it was without
power to admit the applicants, on the ground of the unconstitu-
tionality of the act under which the application was made (chap-
ter 262, Laws of 1860, since repealed, which provided for the
admission of graduates of the law school of Columbia College on
the production of their diplomas), and on this ground the case was
distinguished in Matter of Beggs (1876), 67 N. y. 120.

In that case it was held that the approval of the good character
of an applicant for admission rests with the Supreme Court, and
its exercise of this discretionary power cannot ordinarily be re-
viewed or interfered with by the Court of Appeals ; but that it
seems that if the Supreme Court should deny, in a particular

Kule 4] Admission of Attorneys.

231

case, that it had the legal power to admit, though satisfied that
the applicant was possessed of the requisite qualifications, the
Court of Appeals might review the order so far as to discover
whether the power existed; so, also, if a clear case of abuse of
discretion appeared, the Court of Appeals might correct it. It
was also held that an appeal from an order of the Supreme Court
refusing to approve the good character of an applicant, and
denying his admission on that ground, could not be sustained
where the case did not present all the facts before the Supreme
Court and on which it acted.

See, also. Matter of Droege (1909), 197 K Y. 44.

RULE IV.

Prerequisites to Examination by State Board of Law Examiners; Periods
of Law Study; Admission in Another State or Country.

To entitle an applicant to an examination as an attorney
and counselor, he must prove by his own affidavit,* to the
satisfaction of the State Board of Law Examiners :

First. That he is a citizen of the United States, twenty-
one years of age, stating his age, and [an actual and not a
constructive] resident of the State [for not less than six
months immediately preceding], and that he has not been
examined for admission to practice and refused admission
and license within three months immediately preceding.

Second. That he has studied law, in the manner and
according to the conditions hereinafter prescribed for a
period of three years, and that he is the same person men-
tioned in his annexed preliminary papers; except that if
the applicant be a graduate of any college or universityt
his period of study may be two years instead of three ; and

* See Form for Applicant's Affidavit on page 263.

t Construed by Court of Appeals, May 14, 1900, as follows: "On reading
and filing the request of the tjriversity of the State of New York, and after
hearing the State Board of Law Examiners in relation thereto, It is Ordered
that applicants for examination for admission to the bar are to be deemed
graduates of colleges or universities within the meaning and intent of the
Rules for the Admission of Attorneys and Counselors-at-Law when they

232 CoTJET OS Appeals Peactice. [Kule 4

except also that persons who have been admitted as attor-
neys in the highest court of original jurisdiction of another
State or country, and have remained therein as practicing
attorneys for at least one year, may be admitted to such
examination after a period of law study of one year within
this State.

Changes in the Eule.

The introductory paragraph is the same as in former Rule IV,
except the words " to the satisfaction of the State Board of Law
Examiners," which were substituted in 1894 for the words " to
the court," in conformity with the amendment of 1894 to section
56 of the Code, ,and except the words " by his own affidavit,"
inserted.

Subdivision first is the same as in former Rule IV, with the
exception of the insertion of the words " stating his age," the
substitution of " a resident of the State " for " a resident of the
department in which the application is made," the omission of the
words " in any other department," after the word " examined "
and the omission of the words " which proof must be made by his
own affidavit," which formerly ended the paragraph, and with the
exception of the words in brackets, inserted in 1906.

Subdivision second is new in form, but retains the same periods
of preparation for examination as heretofore prescribed by Rule
III, with the substitution, however, of the terms " studied law "
and " law study " for " clerkship in the office of a practicing at-
torney," in conformity with subsequent provisions of the present
rules (see Rule V) which permit the requirements for preparatory
work to be fulfilled either by attendance at a law school or by
service of an office clerkship. In the provision in reference to
persons who have been admitted as attorneys in another State or

have successfully completed a course of college instruction that requires as a
condition of graduation at least six full years in liberal arts and sciences
in advance of a completed eight year elementary course.

"It is further ordered: that the University of the State of New York may
issue law students' certificateB upon substantial equivalents and substitutes,
to be defined by the rules of the University, in all cases not provided for by
the Rules for the Admission of Attorneys and Counsellors at law now in
force."

Rule 4] Admission of Attoeneys. 233

country (based upon former Rule VI), the requirement that they
must have remained therein as practicing attorneys for at least
one year is new.

The Amendments of 1896.

The amendments of 1896 require that all the facts mentioned
in Eule IV, must be proven to the satisfaction of the State Board
of Law Examiners by the affidavit of the applicant, who must in
addition state his age, in order that the Board may be able to
judge whether he began his law studies under the age of eighteen
years ; he must also swear that he is the person mentioned in the
preliminary papers annexed to his application and in the proofs
required by the provisions of Rule VI, infra.

Examination in any department.

The State Board of Law Examiners has adopted the following
rule:

Eule II. — Each applicant must be a citizen of the State, of full age; he
may be examined in any department, whether a resident thereof or not, but
the fact of his having passed the examination will be certified to the Appel-
late Division of the judicial department in which he has resided for the six
months prior to his examination. He must, however, entitle his papers in
the department dn which he resides. (See note to this Rule, page 287, post.)

Applicant's affidavit.

The applicant's own affidavit should set forth, in addition to the
statements required by the rule, his residence for the preceding
six months, with street and number, if any, in order to furnish the
State Board of Law Examiners with the information necessary
to enable the Board to comply with the provisions of section 56
of the Code, that " such board shall certify to the Appellate Di-
vision of the Supreme Court for the department in which each
candidate has resided for the past six months, every person who
shall pass the examination," and to facilitate the transmission of
communications from the Board of Law Examiners. (See,
further, under Rule VI.)

College graduates.

In applying the provision of subdivision second of this rule,
that " if the applicant is a graduate of any college or university,

234 CouET OP Appeals Peactioe. [Eule 4

his period of study may be two years instead of three," the State
Board of Law Examiners will require proof that the college or
university of which an applicant claims to be a graduate, main-
tains a satisfactory standard in respect to the course of study com-
pleted by him. (See Rule III of State Board of Law Exaaniners
on this subject, given under Eule V, page 239.

Admission in another State or country.

The provisions of the rules concerning admission in another
State have always been .construed and applied as comprehending
in the term " State " the District of Columbia and the Territories.

In addition to the provisions of this rule, permitting persons
who have been admitted in another State or country, and who
thereafter have remained one year as practicing attorneys in such
other State or country, to be examined for admission here after
having subsequently studied law one year in this State it is to be
observed that by force of subdivision 1 of Rule V, the prescribed
year's law study in this State may be pursued either at a law
school or in a law office, or partly in one way and partly in the
other, instead of being restricted to a law office as heretofore, and
that the exemption from Regents' examination, heretofore con-
ferred by old Rule VI, is continued in subdivision 3 of Rule V.
If a clerkship is pursued, the certificate prescribed by subdivision
4 of Rule V must be made and filed at the beginning of the clerk-
ship by the attorney in whose office it is begun.

The words " remained therein," in this rule, imply residence
in the State where the candidate was admitted during the year
that he is required to practice therein, and merely practicing in
that State while continuing to reside in this State is not enough.
The Regents' examination cannot be evaded by a resident of this
State by securing a license to practice in another State, and
practicing there without a change of residence. Matter of Simp-
son (1901), 167 IST. Y. 403.

Eiile 5] Admission of Attoenets.

235

RULE V.

Study of Law; Regents' Ezamination and Certificate; Vacations; Clerk-
ship Certificate.

Applicants for examination shall be deemed to have
studied law within the meaning of these rules, only, when
they have complied with the following terms and condi-
tions, viz:

First. The provisions for requisite periods of study must
be fulfilled by serving a regular clerkship in the office of a
practicing attorney of the supreme court in this state after
the age of eighteen years ; or, after such age, by [satisfac-
tory attendance upon and successfully completing the pre-
scribed course of instruction* at] an incorporated law
school, or a law school connected with an incorporated col-
lege, or university, having a law department organized with
competent instructors and professors, in which instruction
[as hereinafter provided] is regularly given ; or, after such
age, by pursuing such course of study in part by attendance
at such law school, and in part by serving such clerkship.

Second. If the applicant be a graduate of a college, or
university, he must have pursued the prescribed course of
study after his graduation and, if he be a person admitted
to the bar of another state or country, he must have pursued
his prescribed period of study after having remained [as a
practicing attorney] in such other state or country for the
period of one year.

* The rules do not require a law school to certify to the State Board of
Law Examiners that its students have been "graduated" or have "received
a degree " in order that they may be admitted to examination ; it being
sufficient for the certificate to state that the student has " successfully com-
pleted the prescrilbed course of instruction " during the period named. A law
school may properly grant a certificate of " part time " for less than a year,
but the applicant should be credited only with the time actually spent in the
law school, to the same extent and no more as if the time had been spent in
a law office; and the proofs must show to the satisfaction of the State Board
of Law Examiners that the applicant successfully pursued the prescribed
course of instruction during that time. Matter of New York Jjaw School
(1907), 190 N. Y. 215.

236 CouET OF Appeals Pbactice. [Eule 5

Third.* Applicants wJio are not graduates of a college, or
university, subject to the limitations and requirements
hereinafter, in this subdivision, expressed, or m,embers of
the bar as above described, before entering upon the clerk-
ship or attendance at a law school herein prescribed, shall
have passed an examination conducted under the authority
and in accordance with the ordinances and rules of the
University of the State of New York in English, three
years; mathem,atics, two years; Latin, two years; science,
one year; history, two years; or in their substantial equiva-
lents as defined by the rules of the university, and shall have
filed a certificate of such fact, signed by the Commissioner
of Education, ivith the Clerk of the Court of Appeals,
whose duty it shall be to return to the person named therein
a certified copy of the same, showing the date of such filing.
The Regents may accept as the equivalent of and substitute
for the examination in this rule prescribed, either, first, a
certificate properly authenticated, of having successfully
completed a full year's course of study in any college, or
university ; second, a certificate properly authenticated, of
having satisfactorily completed a four years' course of
study in any institution registered by the Regents as main-
taining a satisfactory academic standard; or, third, a
Regents' diploma.

All graduates of a college or university existing under
the government or laws of any foreign country other than
those where English is the language of the people and all
applicants tvho apply for law students' certificates upon
equivalents or substitutes, as above provided, all or any
part of which are earned or issued in said foreign countries,
shall pass the Regents' examination in second year English.
The Regents' certificate above prescribed shall be deemed

* In Court of Appeals, April 24, 1908. Ordered, That the following amend-
ments to Rule V of the Rules regulating the admission of Attorneys and
Counsellors at Law, be and the same hereby are adopted, in pursuance of
the provisions of the Code of Civil Procedure, said amendments to take efiFect
June 1, 1908.

Rule 5] Admission op Attorneys. 237

to take effect as of the date of the completion of the
Regents' examinations, as the same shall appear upon said
certificate. (Amended April, 1908, to take effect June 1,
1908. See Rule IX.)

Fourth. Satisfactory attendance upon and the successful
completion of the prescribed course of instruction at a law
school, the school year of which shall consist of not less than
thirty-two school weeks, exclusive of vacation, in which not
less than twelve hours of attendance upon law lectures or
recitations of such prescribed course, to be given or con-
ducted by regular members of the faculty, are required in
each week, shall be deemed a year's attendance under this
rule. The Court of Appeals, on June 10, 1907, decided that
" while subd. 4 of Rule five prescribes a school year of not
less than thirty-two school weeks and not less than twelve
hours of attendance upon law lectures or recitations each
week, 384 hours of school work during a year, even if dis-
tributed over more than thirty-two school weeks, is a sub-
stantial compliance with the rule. ' ' In computing the period
of clerkship a vacation actually taken, not exceeding two
months in each year, shall be allowed as a part of each year.

It shall be the duty of attorneys with whom a clerkship
shall be commenced, to file a certificate of the same in the
office of the clerk of the Court of Appeals, which certificate
shall, in each case, state the date of the beginning of the
period of clerkship, and such period shall be deemed to com-
mence at the time of such filing and shall be computed by
the calendar year. In the case of a qualified law school in
which the school year consists of less than an aggregate of
384 hours of attendance upon law lectures or recitations,
but where the prescribed course for graduation is three
years, a student who graduates therein upon the completion
of the prescribed course shall be entitled to be credited ivith
two years' attendance under this rule. The same period of
time shaU not be duplicated for different purposes; except
that a student attending a law school as herein provided,

238 Court of Appeals Practice. [Eule 5

and Who, during the vacations of such school, not exceeding
three months in any one year, shall pursue his studies in the
office of a practicing attorney, shall be allowed to count the
time so occupied during such vacation or vacations as part
of the clerkship in a law office specified in these rules.
(Amended April, 1908.)

Fifth. The justices for each Apijellate Division may
adopt for their several and respective departments such
additional special rules for ascertaining the moral and gen-
eral fitness of applicants as to such justice may seem proper.
(Added April 24, 1908; to take effect June 1, 1908.)

Amendments to subdivisions third and fourth, and new
subdivision fifth take effect on the first day of June, 1908,
hut the amendment to subdivision third of Rule Five shall
not apply to any student whose clerkship or attendance at a
qualified law school has already begun, or shall have begun
prior to June 1, 1908, as shown by the records of the Court
of Appeals, or of any incorporated law school, or law school
established in connection with any college or university.

1. Study of Law; changes in the Rule.

Subdivision 1 of this rule contains some of the provisions of
former Eule III, with the important modifications of permitting
the entire periods of law study prescribed by the present rules

(see Enile IV, subdivision second) to be passed either in attend-
ance at a law school, or in serving an ofiice clerkship, or partly
in one way and partly in the other, in place of the former require-
ments of the service of an office clerkship for at least one year in
all cases. (See former Rules III and VI.)

2. College graduation, and admission in another State or country.
The provision of subdivision 2, that the course of law study
required of a graduate of a college or university (which, by sub-
division second of Eule IV, is two years) must have been pur-
sued after gradiiation, is new in terms, but is merely the state-
ment of the practical construction which has always been given
to the provisions on the subject, under the rules heretofore in
force. The provision that the period of law stvidy in this State

Rule 5] Admission of Attoeneys. 239

prescribed for applicants who have been admitted in another State
or country (which, by subdivision second of Rule IV is one year),
must have been pursued after having remained an attorney in
such other 'State or country for one year is new, being in con-
formity with the provisions of present Eule IV on the subject.

3. Regents' examination and certificate.

Changes in the rule. — Changes to be especially noted, effected
by the amendments of 1908, are the elimination of the provision
permitting the passing of the Regents' examinations and the filing
of the certificate thereof within one year after entering upon a
clerkship or attendance at a law school, leaving the single require-
ment that such examination must be passed and the certificate
thereof filed before entering upon a clerkship or attendance at a
law school, and the changes in the subjects prescribed for the
Regents' examination.

On this subject the State Board of Law Examiners has adopted
the following rule:

Rule III. — In applying the provisions of Rules IV and V of the rules
of the Court of Appeals " for the admission of attorneys and counselors at
law," the board will require proof that the college or university of which
an applicant claims to be a graduate, maintains a satisfactory standard in
respect to the course of study completed by him. In case the college or
university is registered' with the Board of Regents of the State of New York
as maintaining such standard, the applicant must submit to the board,
with his diploma or certificate of graduation, the certificate of the said
Board of Regents to that effect, which will be accepted by this board as
prima facie evidence of the fact. Such certificate need not be filed in cases
where the Board of Regents, by a general certificate, has certified to this
board that the said college or university maintains a satisfactory college
standard leading to the degree with which the applicant graduated. In all
other cases the applicant must submit with his diploma or certificate
of graduation satisfactory proof of the course of study completed by him
and of the character of the college or university of which he claims to be
a graduate.

Construction and application of the rule hy the Regents. — The
practical construction given by the Regents to the provisions of
the rule, governing their action in issuing law student certifi-
cates, is set forth in " Instructions of the Board of Regents of the
University to Law Students," page 267 ei seq., post.

240 CouET OF Appeals Peactice. [Rule 5

Former rules for Regents' examination. — The first provision
for Regents' examination and certificate was made in 1882, in
Rule II, adopted Maj 4, 1882, and which took effect July 1,
1882, in the following words:

Rule II. — Before any person shall enter upon the clerkship, or sub-
stituted course of study hereinafter provided, or within three months there-
after, he shall, if not a graduate of a college or university, pass a regents'
examination, conducted under the authority and in accordance with the
rules and regulations of the Board of Regents of the University of the State
of New York in arithmetic, grammar, geography, orthography, English and
American history and English composition, and shall file a certificate of
such fact signed by the secretary of the Board of Regents and countersigned
by the principal or teacher conducting such examination, in the office of
the clerk of the Court of Appeals, who shall, upon filing the same, return
to the person named therein a certified copy of the same, showing the data
of such filing; but this rule shall not apply to students whose clerkship or
substituted course of study began before the adoption of these rules.

This rule was amended March 19, 1891. The amended rule,
which took effect April 13, 1891, and was readopted on the re-
vision of the rules, October 28, 1892, remaining in force until
the present revision, was as follows:

Rule II. — Before any person shall enter upon the clerkship, or substituted
course of study hereinafter provided, or in one year thereafter, he shall,
if not a graduate of a college or university registered by the regents as
maintaining a satisfactory standard, pass an examination conducted under
the authority and in accordance with the ordinances and rules of the
University of the State of New York, in English composition, first year
Latin, arithmetic, geometry, English and United States history, and civics,
or in their substantial equivalents defined by the rules of the University,
and shall file a certificate of such fact, signed by the secretary of the
university, with the clerk of the Court of Appeals, who shall return to
the person named therein a certified copy of the same, showing the date
of such filing.

A law student whose clerkship or substituted course of study has already
begun, as shown by the records of the Court of Appeals, or of any incor-
porated law school in this State, or law school established in connection
with any college or university within this State, may, at his option, file
instead of the certificate required by this rule, that required by the rules
of the Court of Appeals, adopted May 4, 1882.

This rule was superseded by original subdivision 3d of Rule
V, adopted December 20, 1906, and which took effect July 1,
1907, which subdivision was as follows:

Third. — Applicants who are not graduates of a college or university or
members of the bar as above prescribed, before entering upon the clerkship
or attendajice at a, lavy school herein prescribed, or within one year there-
after, shall have passed an examination conducted under the authority, and
in accordance with the ordinances and rules of the university of the State
of New York in second year English, first year Latin, arithmetic, algebra,
geometry, United States and English historj', civics and economics, or in
their substantial equivalents as defined by the rules of the university, and
shall have filed a certificate of such fact signed by the commissioner of edu-
cation, with the clerk of the Court of Appeals, whose duty it shall be to
return to the person named therein a certified copy of the same showing the
date of such filing. The regents may accept as the equivalent of and substi-
tute for the examination in this rule prescribed either, first, «, certificate
properly authenticated of having successfully completed a full year's course
of study in any college or university; second, a certificate properly authen-
ticated of having satisfactorily completed a, four years' course of study in
any institution registered by the regents a^ maintaining a satisfactory
academic standard; or, third, a regents' diploma. The regents' certificate
above prescribed shall be deemed to take effect as of the date of the com-
pletion of the regents' examination, as the same shall appear upon said
certificate.

Regents' law student examinations. — Examinations in the sub-
jects prescribed by the rules are held by the Regents in all the
academies and academic departments of union schools in the
State, under regulations issued from their office in Albany, and
special provision is, and will be made by the Regents for meeting
the requirements of the rules.

Effect of failure to comply with the rule. — If the Regents'
examination is not passed before entering upon the clerkship or
attendance at a law school, but is passed after that time, the stu-
dent will lose, in the computation of his three years' period of law
study, the time passed in studying law before passing the exami-
nation, and will be required to continue his law study for three
years from the date of completing his Regents' examination.
That is, the period of law study under the rules cannot be com-
puted as having begun before passing the Regents' examination,
no matter how much earlier the student may, as matter of fact
have commenced studying law.
16

242 Court of Appeals Peactice. [Rule 5

Filing regents' law student certificate. — As the requirement of
the rule, that the acts prescribed shall have been done " before
entering upon the clerkship or attendance at a law school herein
prescribed," is intended to apply to the filing of the regents'
certificate as well as to the passing of the regents' examination,
the student should file his certificate with the clerk of the Court
of Appeals as soon as he receives it from the regents. The clerk
will thereupon, on receiving a request to that effect and on pay-
ment of the fee of one dollar, make and send to the student a
certified copy of the regents' certificate, showing the date of filing
the original, in due form for presentation to the State Board of
Law Examiners, as prescribed by subdivision 5, of Eule VI.

If the regents' examination is not completed until near enter-
ing upon the clerkship or attendance at a law school, the student
should write to " Examination Department, University of the
State of New York, Albany, N. Y.," stating his examination
numher, and calling attention to the urgency of his case ; if this
is done, the review of his examination papers will be expedited
and a law student certificate will be sent to him as soon as pos-
sible, in case he is found to have passed the examination success-
fully.

Amendment of 1896. — On and after January 1, 1S96, regents'
certificates will be deemed to take effect as of the date of the com-
pletion of the regents' examination, as that date shall appear
upon the certificate, and not from the date of filing the same in
the office of the clerk of the Court of Appeals.

The requirement that before taking efl:ect, the certificates must
have been filed in the office of the clerk of the Court of Appeals
was not dispensed with ; in order to entitle an applicant to apply
for examination, his regents' certificate must have been filed in
the office of the clerk as heretofore, but if through neglect or in-
advertence it was not filed at once upon its receipt from the
regents, the necessity of procuring an order filing it nunc pro
tunc as of the date of the completion of the examination is done
away with, provided the date of the completion of the examina-
tion appears on the certificate. It is understood that the state-
ment of the date of the completion of a course of study accepted
by the regents under these rules as an equivalent for the regents'
examination, has the same force and effect as the statement of the
date of the completion of a regents' examination.

I^ule 5] Admission of Attorneys. 243

4. Vacations.

Changes in the rule. — Subdivision 4 of the present rule is based
upon the last paragraph of former Eule III. The length of the
vacation allowed in each year of clerkship is reduced from three
to two months, and it is required that in order to be computed,
the vacation must have been " actually taken."

This last provision is in accordance with what has always been
the intention of the rules in reference to clerkship vacations, and
removes any doubt as to the application of the provision on that
subject. It was held by the General Term of the Third Depart-
ment, under the former rules, that vacations not actually talien
by students at law should not be allowed as part of the term of
regular clerkship, and that the last three months' vacation would
not be allowed to be taken by a student after his examination for
admission, so as to permit him to deduct that period from his
term of clerkship. Under the present rules time spent in a law
office must be computed by the calendar year. An affidavit of
ten months' service in an office and two months' vacation taken
before or after the ten months, will not count as a year but only
for time actually spent in the office. The attorney's affidavit of
service of a regular clerkship in his office must show the actual
service of such a clerkship, giving the date of the beginning and
end thereof; the vacations taken must be within and betwe^'n
those dates, that is, actually taken during the actual service of
the clerkship.

The new amendment as to the computation of the period of
attendance upon a law school is to be noted.

5. Clerkship certificate.

The rule. — Subdivision 5 of the present rule is substantially
the same as former Eule V, except the words " which certificate
shall, in each case, state the date of the beginning of the period
of clerkship," which were introduced in 1894; the amendment of
1896 indicated by italics ; and the words " and shall be computed
by the calendar year," which are taken from former Eule VIII.

Requisites of the certificate. — It was formerly held essential
that the certificate should state the commencement of a " regular
clerkship " and the date thereof. A certificate which merely
stated, for example, that " the study of law," or " a course of law

2-1:4 Court op Appeals Peactice. [Kule 5

reading," had been commenced, or that one had entered a law
office as " a student at law," was insufficient. The General Term
of the Supreme Court for the First Department, in March, 1894,
gave the following reasons for rejecting, on an application for
examination for admission, a certificate which had been filed in
1892, and which stated that the applicant had entered the office
of a practicing attorney as " a student ■ at law : "

The certificate was rejected by us because it did not seem to comply with
the rules of the Court of Appeals. Throughout the whole of the rules, the
serving of a clerkship Is spoken of : Rule II, " Before any person shall enter
upon the clerkship," etc. In Rule III, clerkship is repeatedly spoken of;
so in Rule IV; and in Rule V it is provided that a certificate of clerkship
shall be filed. So in Rule VIII, the time of clerkship is spoken of; and
there is but one place where " law student " is mentioned, and that for the
first time in amendment of Rule II in March, 1891. Having in view the
reason why the requirement of a practical clerkship was made of even
graduates of law schools, it did not seem to us that the being a mere law
student in an office was in any way a satisfaction of the requirement of the
rule. The requirement of Rule V is certainly a very simple one, and it
would seem that it could easily be complied with. We have, however, found
that there exist some persons who make it a business to coach for examina-
tions, and who give certificates of attendance as law students, in their
offices, — the students not doing a particle of real clerical work, — and they
have given certificates of the kind under consideration.

Although the wording and requirements of the rules in the
revision of 1892, referred to by the General Term, have been
changed in some important respects by the present revision as
e. g., in the application of the term " law study " to both attend-
ance at a law school and clerkship in a law office, the State Board
of Law Examiners gave the same construction to the present
rule, in the following words:

The certificate filed by the attorney under Rule V should state that the
student has commenced a " clerkship." In our judgment the phrases " to
have served a clerkship in a law office," and " to have studied law in an
office,'' are not synonymous terms. The former is more comprehensive and
includes the study of law as well as engaging in some of the practical work
in the office, as generally understood. Such would be our construction of
the rule.

Recently, however, a form of certificate stating, among other
requirements, that one has entered an office " as a regular law

Hule 5] Admission o:f Attoenets. 245

clerk and student," has, bj approval and adoption of the court,
superseded the earlier form which contained the statement that
one had commenced " a regular clerkship." The certificate must
also state where and when the student was born. For present
form of certificate, see page 263.

It is the practice of the clerk of the Court of Appeals, on re-
ceiving a certificate which fails to follow the form now in force,
to call attention to the defect and give an opportunity of substi-
tuting the proper certificate.

Filing certificate; commencement of clerlship. — It is the duty
of the attorney to see to it that the certificate is made, and filed
in the office of the clerk of the Court of Appeals, at once, on the
commencement of a regular clerkship with him by a law student;
many students have lost valuable time through the neglect of the
attorney to do this.

Copy of certificate. — On the certificate being filed, the clerk
will furnish a certified copy thereof, together with a certificate of
the fact and date of filing, in proper form for presentation to
the State Board of Law Examiners, as prescribed by subdivision
3 of Rule VI, whenever requested, on receipt of the fee therefor,
which is one dollar.

Omission to file certificate at commencement of clerkship. —
Where the attorney has failed to perform the duty imposed on
him by the rule of filing the certificate at the time of the com-
mencement of the clerkship an order may, on a proper showing,
be applied for under Rule VII, filing the certificate nunc pro
tunc as of the date when the clerkship actually commenced, which
must, of course, agree with the date of the commencement of the
clerkship stated in the certificate. For the practice on such ap-
plication, and the showing required to obtain an order to file nunc
pro tunc, see Rule VII.

Change of attorneys during clerkship. — The duty of filing a
preliminary clerkship certificate is imposed by the rule only upon
the attorney with whom the clerkship is commenced ; therefore if,
after this has been done, the student leaves the ofiice of such at-
torney before he is entitled to apply for examination for admis-
sion, and continues his clerkship with another attorney, or with
different attorneys in succession, a new certificate need not be
filed on any such change of attorneys; but proof of the continu-

246 CouET OF Appeals Practice. [Eule 5

ance and completion of the service of a regular clerkship must be
made to the State Board of Law Examiners on application for
examination, as prescribed by subdivision 3 of Eule VI, by affi-
davits from the original attorney and each of the successive at-
torneys showing the period of such clerkship served with each,
respectively, and the vacations taken, if any.

6. Duplication of time; law school vacations.

Application of the rule. — By force of the provisions in subdi-
vision four of this rule, as to attendance on a law school, taken in
connection with the provision that when a student attending a
law school pursues his studies in the office of a practicing attor-
ney during the vacations of the school, not exceeding three months
in any one year, he shall be allowed to count the time so occu-
pied during such vacation or vacations as part of an office clerk-
ship, the student may take a vacation from both school and office,
and have his year's work computed as covering a year and three
months of the prescribed period of law study. This is the extent
of duplication of time allowed.

The rule against duplication of time for different purposes
does not prohibit a clerk in a law office from attending a law
school out of office hours, nor does it prohibit an attendant on
a law school from acting as clerk in a law office out of school
hours, but it does prohibit computing the same time so as to
apply it upon both clerkship and attendance at law school, in
making out the term of law study .prescribed by the rules, except
as regards three months of the law school vacation in each cal-
endar year. For example, to put the application of the rule in
another form, if in a given calendar year, a law student serves
as clerk in a law office throughout the year, after a certificate of
the commencement of his clerkship has been duly filed, and also
attends a law school, without interfering with the service of his
clerkship, the year so employed, although it might be computed
either as clerkship or as attendance on law school, cannot be com-
puted both as a year's clerkship and also as a year's attendance
at law school, so as to make up together two years of law study,
under the rules, but it can be computed as a year's attendance
on a law school and three months' clerkship, making in all a
year and three months of law study, within the meaning of the

Eiile 6] Admission of Attorneys. 247

rules, which, as before stated, is the utmost duplication of time
allowed.

With the above exception, as to three months in any one year,
service of clerkship and attendance at law school, where law is
studied partly in one of these modes and partly in the other,
must, in order to be computed in making up the prescribed period
of law study, be successive and not contemporaneous; but the
order in which the two modes of law study may be pursued is
immaterial.

RULE VI.
Proof of Compliance with Preliminary Requirements.

The State Board of Law Examiners, before admitting an
applicant to an examination, shall require proof that the
preliminary conditions prescribed by these rules have been
fulfilled ; which proof shall be made as follows, viz. :

First. That the applicant is a college graduate, by the
production of his diploma or certificate of graduation under
the seal of the college.

Second. That he has been admitted to the bar of another
State or country, by the production of his license or certifi-
cate executed by the proper authorities.

Third. That he has served a regular clerkship, in the
office of a practicing attorney of the Supreme Court [in]
this State, after the age of eighteen years, by producing and
filing with the board a certified copy of the attorney's cer-
tificate as filed in the office of the clerk of the Court of
Appeals, and producing and filing an affidavit of the attor-
ney or attorneys with whom such clerkship was served,
showing the actual service of such clerkship, the continu-
ance and end thereof, and that not more than two months '
vacation was taken in any one year. [Both of said affidavits
must be to the effect that during the entire period of such
clerkship, except during the stated vacation time, the appli-
cant was actually employed by said attorney as a regular
law clerk and student in his law office, and, under his direc-

248 CouET OF Appeals Peactice. [Eule 6

tion and advice, engaged in the practical work of the office
during the usual business hours of the day.]

Fourth. The time of study allowed in a law school must
be proved by the certificate of the teacher or president of
the faculty under whose instructions the person has studied,
under the seal of the school, if such there be, in addition to
the affidavit of the applicant, which must also state the age
at which the applicant began his attendance at such law
school. [Said certificate and affidavit must also state the
facts required by subdivision four of Eule V], which proofs
must be satisfactory to the Board of Examiners.

Fifth. That the applicant has passed the regents' exam-
ination or its equivalent, must be proved by the production
of a certified copy of the regents* certificate filed in the
office of the clerk of the Court of Appeals, as hereinbefore
provided.

Sixth. When it satisfactorily appears that any diploma,
affidavit or certificate required to be produced has been lost
or destroyed, without the fault of the applicant, or has been
unjustly refused or withheld, or, by the death or absence of
the person or officer who should have made it cannot be
obtained, the Board of Law Examiners may accept such
other proof of the requisite facts as they shall deem
sufficient.

Seventh. A law student whose clerkship or attendance at
a law school has already begun as shown by the records of
the Court of Appeals, or of any incorporated law school,
or law school established in connection with any college or
university, may, at his option, file or produce, instead of the
proofs required by these rules, those required by the rules
of the Court of Appeals adopted December 2, 1895.*

* It is sufficient for a law student whose attendance at a law school had
already begun when the present rules went into effect, to show full com-
pliance with the rules adopted December 2, 1895. without showing compliance
with the rules which went into effect July 1, 1907, but the proofs submitted,
as to time of study, etc., must be satisfactory to the State Board of Law
Examiners. Matter of New Torh Law School' (1907), 190 N. Y. 215.

Rule 6] ADMiissioN of Attorneys. 249

Changes in the Rule.

The differences between the present and former rules, in addi-
tion to those arising from the amendments of 1896, commented
on below are as follows:

In subdivision 1 of this- rule, the words " or certificate of gradu-
ation are new;* the provision for publication of a diploma was
m subdivision 3 of former Eule IV.
Subdivision 2 is new.

The first clause of subdivision 3 corresponds with the last
clause of former Eule V, with the addition, however, of the re-
quirement of filing, as well as producing, a certified copy of the
certificate of commencement of clerkship; the second clause is
new, being an amplification, by the addition of specific require-
ments, of the indefinite provision of subdivision 4 of former
Rule IV, that " the clerkship may be proved by the certificate of
the attorney with whom the same was served."

iSubdivision 4 is the same as the last sentence of subdivision
4 of former Rule IV, with the exception of the substitution of
" in a law school " for " as a substitute for any part of said clerk-
ship," and the substitution of " board of examiners " for " court."
Subdivision 5 is the same as the corresponding provision of
subdivision 3 of former Rule IV, except the words " or its equiva-
lent," after " regents' examination," which are new.

Subdivision 6 is substantially new, being an amplification of
provisions found in subdivisions 3 and 4 of former Rule IV.

Subdivision Y corresponds to the saving clause at the end of the
former Rule II (which see on page 240), but confines its per-
mission to a compliance with the rules of 1895, and no longer
permits recourse to the rules of 1892. This subdivision retains
the form in which it was adopted in 1894, except that it origi-
nally used the word " certificates " where the word " proofs,"
substituted by amendment in 1895, now appears. In the clause
limiting its operation to " a law student whose clerkship or at-
tendance at a law school has already begun," the words " has
already begun " were in 1897 construed as referring to and
speaking from the date when they originally went into effect in

* As to the meaning of the word " new," see note at foot of page 216.

250 CouET or Appeals Peactice. [Eule 6

this subdivision. This was decided in Matter of Warde (1897),
154 N. Y. 342, which case enunciates the following conclusions:

(1.) Amendments to the rules. — The amendments made December 2, 1895,
1(1 the Rules for the admission of attorneys, which retained unchanged the
following italicized clauses in subdivision 7 of Rule VI, adopted October 22,
1894: A law student whose clerkship or attendance at a law school has
already begun may, at his option, file or produce, instead of the certificates
required by these rules, those required by the rules of the Court of Appeals,
adopted October 28, 1892, did not have the effect of making the words " has
already begun " refer to the date of the taking eflect of the amendments,
namely January 1, 1896, but left them continuing to speak as of the date
■when they originally went into effect, namely, January 1, 1895.

(2) Rules of 1892. — The privilege of proceeding under the rules of 1892
does not apply to any law student whose clerkship or attendance at a law
school commenced after the 1st day of January, 1895, but all such students
must conform to the later rules.

(3) Rcycuts' certificate under Rules of 1892. — A law student where cl-jrk
ship or attendance at a law school commenced after the 1st day of January,
1895, cannot be admitted to examination for admission, upon producing a
regents' certificate under the rules of 1892.

Amendments of 1896.

The amendments to this rule, which went into effect on Janu-
ary 1, 1896, do not add additional requirements, but ask for
greater certainty in the proofs demanded by the rule.

Hereafter, all certificates of graduation annexed to the appli-
cant's papers, as proof of his being a graduate of a college or
university, must be attested by the seal of the college — a mere
written declaration purporting to be signed by an oiBcer thereof
will be insufficient; and the same rule applies to certificates of
law school attendance, which must also be under the seal of the
school, if such there be.

Since January 1, 1896, the attorney with whom the applicant
has served a regular clerkship must make affidavit to the fact of
the actual service by the applicant of a regular clerkship in his
law office after the age of eighteen years, showing the continu-
ance and end thereof and that not more than two months' vaca-
tion was taken in any one year. Certificates of these fact^ will
not be accepted.

An applicant who claims time by attendance at a law school
must now state the age at which he began his attendance thereat,
in order to show that he did not begin such attendance before he
was eighteen years of age.

Kule 6] Admission of Attorneys. 251

Submission of proofs to the State Board of Law Examiners.

The papers required by this rule to be produced to or filed with
the State Board of Law Examiners, together with the applicant's
own affidavit under Rule IV, are required by the board to be
delivered to its secretary at least fifteen days before the day ap-
pointed for the examination. The address of the secretary of the
board is given under Eule VIII, page 255.

The rules adopted by the State Board of Law Examiners on
the subject are to be found on page 287.

It should be borne in mind that the attorney's certificate of the
applicant's good moral character, required by Rule III, is to be
produced to and filed with the Appellate Division of the Supreme
Court, and not with the Board of Law Examiners.

Papers required from law students.

The following is a recapitulation of all the papers required by
the rules to be produced or filed by law students, or on their
behalf, from the commencement of law study to application for
admission.

To he filed in the office of the clerk of the Court of Appeals.

(1) Regents' law student certificate. (To be filed before enter-
ing upon clerkship or attendance at a law school. Rule V,
subd. 3.)

(2) Attorney's certificate of commencement of clerkship. (To
be filed on entering upon clerkship. Rule V, subd. 4.)

To he submitted to the State Board of Law Examiners, on ap-
plying for examination:

(3) College diploma or certificate of graduation (Rule VI,
subd. 1), with (4) regents' certificate or other proof that the
institution maintains a satisfactory standard (Rule III of State
Board of Law Examiners, page 287) ; or (5) certified copy of
regents' law student certificate (Rule VI, subd. 5) ; or (6) license
or certificate of admission in another State or country (Rule VI,
subd. 2; and see Examiners' Rule V, page 288).

(7) Certified copy of attorney's certificate of commencement
of clerkship and (8) attorney's affidavit of service of clerkship
(Rule VI, svibd. 3) ; and [or] (9) certificate of attendance at
law school and (10) applicant's own affidavit of attendance at law
school (Rule VI, subd. 4).

252 CouBT OF Appeals Peaotiob. [Eule 7

(11) Applicant's own affidavit of citizenship, age, residence,
etc. (Eule IV and Examiners' Eule I.)

To he submitted to the Appellate Division of the Supreme
Court, on applying for admission and license.

(12) Certificate of State Board of Law Examiners, of passing
examination (Eule III).

(13) Affidavits of good moral character (Eule III).
Unearned examination. — In Matter of Edwards (1897), 152

N. Y. 627, an application by a law student for an order per-
mitting him to be examined for admission to the bar, before the
expiration of his term of service as law student, was denied.

RULE VII.

Filing Certificates Nunc Pro Tunc; Certain Regents' Certificates Validated.

When the filing of a certificate, as required by these rules,
has been omitted by excusable mistake, or without fault,
the court may order such filing as of the proper date. All
certificates heretofore issued to law students by the Board
of Eegents and founded upon equivalents instead of an
actual examination, are validated and made eifectual, and
may be accepted as sufficient by the Board of Examiners.

The Eule.

This rule was introduced by the revision of 1894, but its pro-
visions are, in effect, the statement of what has always been the
practice in granting relief in cases of excusable mistake or over-
sight in not complying with the requirements for filing certifi-
cates, and in accepting regents' certificates issued upon substitutes
for an actual regents' examination, although not expressly pro-
vided for by the rules before that revision. The certificates in
reference to which relief, under this rule, is of the most importance
are regents' certificates which fail to state the date of the com-
pletion of the regents' examination, and clerkship certificates. If
regents' certificates on which appear the date of the completion
of the regents'' examination (Eule V, subd. 3), are filed at any
time prior to the application for examination for admission, they
will be deemed to take effect as of the date of the completion of
the regents' examination and need not be filed nunc pro tunc.

^iile '^] Admission of Attorneys. 253

Filing regents' certificate nunc pro tunc.

Regents' certificates are no longer filed nunc pro tunc; when
filed, they are deemed to take effect as of the date of the regular
examination as the same shall appear upon said certificate (Eule
V; subd. 3).

Filing clerkship certificate nunc pro tunc.

When the attorney with whom a clerkship has been commenced
has failed to perform the duty imposed upon him by subdivision 5
of Eule V, of filing the prescribed certificate of that fact at the
time of the commencement of the clerkship, an application may
be made under this rule, for an order filing such certificate nunc
pro tunc as of the date of the beginning of the period of clerkship
as stated in the certificate. To obtain such an order, the attorney
with whom the clerkship was commenced, must make and send
or present to the clerk of the Court of Appeals, together with his
certificate, or a reference thereto, if it has already been filed, an
affidavit stating that he was, at the time of the beginning of the
clerkship stated in the certificate, a practicing attorney of the
Supreme Court of the State of New York; that the student com-
menced a regular clerkship in his law office on the date mentioned
in the certificate (giving it) ; that the student was at that time
over eighteen years of age, and that he had passed the prescribed
regents' examination, or completed a course of study accepted as a
substitute therefor, and filed a regents' law-student certificate, or,
that he is exempt from so doing by reason of having been gradu-
ated at a college or university, or having been admitted and having
remained as an attorney in another State or country for one year,
before the beginning of the clerkship. The affidavit should also
state the facts which are relied on to constitute an excuse for not
filing the certificate at the time the clerkship commenced.

If the affidavit is sufficient, and it appears that the student had
pased a regents' examination or completed a course of study ac-
cepted as a substitute therefor, before entering upon the clerk-
ship, and had filed a regents' certificate, or is exempt from so
doing, an order will be granted and entered, and the clerkship
certificate will be deemed filed nunc pro tunc, accordingly, as of
the date when the clerkship is stated to have actually commenced ;
but no order for filing nunc pro tunc will be granted, where the

254 Court of Appeals Practice. [Rule 8

effect would be to dispense with a regents' examination and cer-
tificate, or to give the student the advantage of an earlier rule
prescribing the subjects of regents' examination than that to which
he otherwise would be subject. See Matter of Michael (1897),
154 N. Y. 762.

A certified copy of the order, required for presentation to the
State Board of Law Examiners on application for examination,
will be furnished by the clerk when requested, on receipt of the
fee therefor, which is one dollar.

RULE VIII.

state Board of Law Examiners.

The State Board of Law Examiners shall be paid as com-
pensation, each th& sum of two thousand dollars per year,
and in addition such further sum as the court may direct,
and an annual sum not exceeding two thousand dollars per
year shall be allowed for necessary disbursements of the
board. Every applicant for examination shall pay to the
examiners a fee of fifteen* dollars, which shall be applied
upon the compensation and allowance above provided, and
any surplus thereafter remaining shall be held by the treas-
urer of fhe State Board of Law Examiners and deposited
in some bank, in good standing, in the city of Albany, to his
credit and subject to his draft as such treasurer when
approved by the Chief Judge. The examinations held by
such State Board of Examiners may be conducted by oral
or written questions and answers, or partly oral and partly
written, but shall be as nearly uniform in the knowledge
and capacity which they shall require, as is reasonably pos-
sible. An applicant who has failed to pass one examina-
tion cannot again be examined, until at least three months
after such failure.

State Board of Law Examiners.

This rule is new, being in compliance with and furtherance of
the requirements of section 56 of the Code of Civil Procedure,

*" Fifteen" substituted for "ten," November 30, 1909.

Kule 8] Admission of Attoekeys. 255

as amended by chapter 760 of the Laws of 1894. (See above,
under Eule I.) This act, which created the State Board of Law
Examiners, provided that it should go into effect January 1, 1895,
but that the examiners might be appointed and the rules for ex-
amination adopted immediately. The act was approved by the
Governor May 23, 1894, and on October 31, 1894, the Court of
Appeals appointed members of the State Board of Law Examiners.
The board now consists of William P. Goodelle, of Syracuse;
Eranklin M. Danaher, of Albany, and Frank Sullivan Smith, of
New York. Mr. Goodelle is president of the board, and Mr.
Danaher secretary and treasurer. The ofEce of the secretary and
treasurer, to whom the proofs required by Eules IV and VI, and
the fee prescribed by this rule, should be sent by applicants for
examination fifteen days before the date appointed for their ex-
amination, is Rooms 41 and 42 Bensen Building, Albany.
See Eules of the State Board of Law Examiners, page 286.

Scope of the examination.

Until other or additional subjects are prescribed by the State
Board of Law Examiners, applicants should be prepared for
examination upon the topics prescribed by Eule I of the General
Eules of Practice of this State, prior to the revision thereof of
1896, which revision leaves the scope and character of the exami-
nations entirely in the discretion of the Board. Former Eule I
required the applicant to sustain a satisfactory examination upon
the law of pleadings, practice as regulated by the Code of Civil
Procedure and by the General Eules of Practice, the law of real
and personal property, contracts, partnership, negotiable paper,
principal and agent, principal and surety, insurances, executors
and administrators, bailments, corporations, personal rights, do-
mestic relations, wills, equity, jurisprudence, criminal law and
the law of evidence.

The education and course of study of candidates for admission
to the bar are discussed, and the qualifications deemed essential
under the circumstances existing when the only condition or re-
straint imposed by law upon admission to practice was the pro-
vision of the 'State Constitution of 1846 (art. 6, § 8), that those
who possessed " the requisite qualifications of learning and abil-
ity " should be entitled to admission, are stated in an interesting
report of an examining committee to the General Term of the

256 GoTJRT OF Appeals Peacticb. [Rule 9

Supreme Court, in 1856, reported as Matter of Pratt, 13 How.
Pr. 1.

See, also, Eule VI of the State Board of Law Examiners,
page 288.

RULE IX.

Time of Taking Effect.

[These Rules shall take effect on July 1, 1907.]

These amendments* shall take effect on the first day of June,
1908, iut the amendment to subdivision third of Bute V shall root
apply to any student whose clerkship or attendance at a qualified
law school has already begun, or shall have begun prior to June 1,
1908, as shown by the records of the Court of Appeals, or of any
incorporated law school, or law school established in connection
with any college or university.

Rule IX of 1895, which prescribed times and places for
holding examinations, was dropped by the revision of 1906,
but the provision thereof permitting an applicant to be ex-
amined in any department, whether a resident therein or
not, is preserved by Rule II of the State Board of Law
Examiners (page 286). Prior rules restricted both exami-
nation and admission thereon to the judicial department of
which the applicant was at the time a resident. An excep-
tion to this restriction prevailed up to 1882, in the case of
graduates of certain law schools in this State, who, by force
of statutes, the repeal of which did not take effect until
that year, were entitled to admission without examination
by the court, on production of their diplomas. Matter of
Burchard (1882), 27 Hun, 429. This exception ceased, how-
ever, with the repeal of the statutes referred to, and after
1882 graduates of law schools were subject, in common with
other applicants for admission, to the requirement of
making their application for admission, to the Supreme
Court in the department in which they resided.

The distinction in respect to the department of examina-
tion and that of admission is to be noted. While the statute

* Of April 24, 1908, printed in italics.

Kule 9] Admission of Attoeneys. 257

impliedly and tlie rule expressly permits any applicant to
be examined by tbe State Board of Law Examiners in any
department, whether a resident therein or not, admission
to practice is, by force of the provisions of section 56 of
the Code (section 88 of the Judiciary Law), restricted to
the Appellate Division of the Supreme Court of the depart-
ment in which the candidate resides.

Rule of the Supreme Couet.

Rule 1 of the General Rules of Practice as amended April 1,
1910, in effect September 1, 1910, is as follows:

Application for admission as attorneys.

Within ten days after the iirst day of January in each year, the Appellate
Division in each department shall appoint a committee on character and
fitness of not less than three for the department, or may appoint a com-
mittee 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 State Board of
Law Examiners, or upon motion under Rule 2 of the rules of the C!ourt of
Appeals for the admission of attorneys and counselors-at-law. The com-
mittee shall require the attendance before it, or a member thereof, of each
applicant, ^¥ith the affidavit of at least two practicing attorneys acquainted
with such applicant, residing in the judicial district in which the applicant
resides, 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 afliant's knowledge of the applicant is based, and it shall be the duty
of the committee to examine each applicant, and the committee must be
satisfied from such examination, and other evidence that the applicant shall
produce, that the applicant has such qualifications as to character and gen-
eral fitness as in the opinion of the committee justify his admission to
practice, and no person shall be admitted to practice except upon the pro-
duction 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 ihe committee that he pos-
sesses such a character as justifies his admission to the bar and qualifies him
to perform the duties of an attorney and counselor-at-Iaw.

258 CouET OF Appeals Practice. [Eule 9

to the court proof that he has been admitted to practice as an attorney and
counsolor-at-law in the highest court in another state, or in a country
whose jurisprudence is based upou 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 state or country; that he has actually
remained in said state or country, and practiced 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 practiced 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 duly 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
States and has been an actual resident of the State of New York, or of an
adjoining state, for at least six months prior to the making of the applica-
tion, 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 w)io 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 affidavit 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 admission, and also before
the committee on character and fitness for the district in which the applica-
tion is made. Wlien the applicant resides in an adjoining State, and a
motion is made to admit him to practice in this State without actual resi-
dence herein, in addition to the foregoing facts, the applicant m.ust 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.

Registration of Attoeneys.

The system of registration of attorneys was created by chapter
1(15 of the Laws of 1898 and amended by chapter 225 of the Laws
of 1899 and chapter 154 of the Laws of 1906. This legislation is
now embodied in the Consolidated Laws, as follows :

Judiciary Law.

§ 468. Every person who is hereafter duly licensed and admitted to prac-
tice as an attorney and counselor-at-law in the courts of record of this State
by an Appellate Division of the Supreme Court, shall svibscribe and take and
file an oath or affirmation which must be substantially in the following

Kule 9] Admission of Attorneys. 259

form, the blanlcs b«ino' properly filled before lie begins or is entitled to begin
to practice for anotlier as an attorney and counselor- at- law in the courts of
this State or in any court in the county of New York or in the county of
Kings :

STATE OF NEW YORK,

COUNTT,

I, , being duly sworn (or aflarmed), do depose and say that I am

a. natural born citizen of the United States (if naturalized, state when and

where) and now reside at (or, if a resident of an adjoining State

and admitted to practice in the courts of record of this State and whose office
for the transaction of law business is within this State, state the fact).
That I was duly and regularly licensed and admitted to practice as an at-
torney-at-law or as an attorney and counselor-at-law in the courts of record

of this State at the term 18. . of the General Term (or Appellate

Division) of the Supreme Court (or other court as the case may be) held
at and that I took the constitutional oath of office

Subscribed and sworn to before me,
this day of , 189. ..

which oath or affirmation shall be filed in the office of the clerk of the
Court of Appeals by the person making the same, provided, nevertheless, that
such affidavit or affirmation may state that the deponent or affirmant believes
that he took the constitutional oath of office in lieu of stating unqualifiedly
that he did so, where the affidavit or affirmation states, or in substance
shows, the deponent's or affirmant's lack of positive or certain recollection of
having taken such oath, or shows other substantial reason for thus qualifying
the affidavit or affirmation on that subject. If any attorney or counselor-
at-law or solicitor in chancery or attorney of or in the Supreme Court on the
first Monday of July, eighteen hundred and forty-seven, who was entitled to
file the said oath or affirmation under the provisions of Laws of eighteen hun-
dred and ninety-eight, chapter one hundred sixty-five, as amended, before
July first, eighteen hundred and ninety-nine, has failed to do so, the Special
Term of the Supreme Court of the judicial district where such attorney-at-
law or attorney or counselor-at-law resides, may, upon proof by affidavit
showing reasonable grounds therefor, grant an order permitting the appli-
cant to make and file the oath or affirmation required herein, with the same
effect as if the same had been made and filed within the time stated, and
relieving him from penalties and prosecutions by reason of failure to make
affirmation hereinbefore provided shall pay to the said clerk at the time of
and file such oath or affirmation within the time required.

Every person filing with the clerk of the Court of Appeals the oath or
affirmation hereinbefore provided shall pay to the said clerk at the time of
guch filing the sum of twenty-five cents to defray the necessary disbursements
incurred by him in carrying out the provisions of this article.

260 CouET OF Appeals Practice. [Rule 9

A person who practices any fraud or deceit or knowingly makes any false
statement in the oath or affirmation in and by this section required to be
made and filed is guilty of a felony.

§ 469. It shall be the duty of the clerk of the Court of Appeals to file in
his office the said oaths or affirmations aforesaid, and to compile the state-
ments contained therein, and to enter therefrom in a bound book or volume
to be kept by him for that purpose, which shall be known and designated as
and is hereby made the " official register of attorneys und counselors-at-law in
the State of New York," in the alphabetical order of the first letter of their
surnames, the names and residences and the title of the court and the time
and place where admitted, and the date the oath or affirmation aforesaid was
filed, of all persons who have filed in his said office the oath or affirmation
as aforesaid, which said " official register of attorneys and counsellors-at-
law in the State of New York," is hereby declared to be a public record
and presumptive evidence that the individuals therein named are duly
registered to practice at attorneys and counsellors-at:law in the courts of
record of this State or in any court in the counties of New York and Kings.

It shall be unlawful for any person to practice or appear as an attorney-
at-law or as attorney and counselor-at-law for another in a court of record
in this State or in any court in the county of New York or in the county of
Kings, or to make it a. business to practice as an attorney-at-law or as an
attorney and counselor-at-law for another in any of said courts, or to hold
himself out to the public as being entitled to practice law as aforesaid, or in
any other manner, or to assume to be an attorney or counselor-at-law, or to
assume, use, or advertise the title of lawyer, or attorney and coimselor-at-
law, or attorney-at-law, or counselor-at-law, or attorney, or counselor, or
attorney and counselor, or equivalent terms in any language, in such manner
as to convey the impression that he is a, legal practitioner of law or in any
manner to advertise that he either alone or together with any other persons
or person, has, owns, conducts or maintains a law office or law and collection
office, or office of any kind for the practice of law, without having first been
duly and regularly licensed and admitted to practice law in the courts of
record of this State, or, in case of persons licensed and admitted prior to
July first, eighteen hundred and forty-seven, without having first been duly
and regularly licensed and admitted to practice as attorney of or in the
then Supreme Court or as solicitor in chancery or of the court of chancery,
and without having taken the constitutional oath and without having sub-
scribed and taken the oath or affirmation required by section foui- hundred
and sixty-eight of the Judiciary Law and filed the same in the office of the
Court of Appeals as required by said section. Any person violating the
provisions of this section is guilty of a misdemeanor and it shall be the
duty of the district attorneys to enforce the provisions of this section and
to prosecute all violations thereof.

The Oourt of Appeals has no power on original motion, to order
the filing mmc pro tunc of an attorney's oath for the purpose of

■^"^e 9] Adjiission of Attoknets. 261

registration under chapter 165 of the Laws of 1898. The duty
imposed upon the clerk of that court under this act is independent
of the court, and in that regard he should he treated as an inde-
pendent puhlic ofRccr. Matter of Caruthers (1899), 158 'N. Y.
131.

Certificate of registration — fees. — The clerk will, on request,
furnish a certificate of registration; the fee for which is fifty
cents. The fee for filing the oath or affirmation is, as provided
by section 45S of the Law, twenty-five cents.

Additional restrictions as to the practice of law.

The Judiciary Law provides as follows :

Attorney who is judge's partner or clerk prohibited from practicing before
him or in his court.
§ 471. The law partner or cleric of a judge shall ^lot practice before liim,
as attorney or coimselor in any cause, or be employed in any cause which
originated before him. A law partner of, or person connected in law busi-
ness with a judge, shall not practice or act as an attorney or counselor, in
a court, of which the judge is, or is entitled to act as a member, or in a.
cause originating in that court; except where the latter is a member of a
court, ex officio, and does not officiate or take part, as a member of that
coui-t, in any of the proceedings therein. (From Code of Civil Procedure,
§§ 49, .50.)

Attorney who is surrogate's fatter or son prohibited from practicing before
him.

§ 472. A surrogate's father or son shall not practice or be employed as
attorney or counsel, in any case, in which his partner or clerk is prohibited
by law from so practicing, or being employed. (From Code of Civil Pro-
cedure, § 2.529.)

Sheriffs, constables, coroners, criers, and attendants prohibited from practicing
during term of office.

§ 473. A sheriff, under sheriff, deputy sheriff, .sheriff's clerk, constable,
coroner, crier, or attendant of a court, shall not during his continuance in
ofEce, practice as an attorney or counselor in any court. (From Code of
Civil Procedure, § 62.)

Compensation of attorney or counselor.

§ 474. The compensation of an attorney or counselor for his services is
governed by agreement, express or implied, which is not restrained by law.
(Prom Code of Civil Procedure, § 66.)

262 Court of Appeals PKAfTicE. [Rule 9

Attorney's lien in action or special proceeding.

§ 475. From the commencement of an action or special proceeding, or the
service of an answer containing a counterclaim, the attorney who appears for
a party has a lien upon his client's cause of action, claim or counterclaim,
which attaches to a verdict, report, decision, judgment or final order in
his client's favor, and the proceeds thereof in whosesoever hands they may
come; and the lien cannot be affected by any settlement between the parties
before or after judgment or final order. The court upon the petition of the
client or attorney may determine and enforce the lien. (P'roni Code of Civil
Procedure, § 66.

The Code of Civil Procedure provides as follows :

Service of paper upon attorney residing in adjoining State.

§ 60. 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 a person regularly ad-
mitted to practice as an attorney and counselor, in the courts of record of
this State, whose office for tbe transaction of law business is within the
State but who resides in an adjoining State, by depositing the paper in a
post office in the city or town where his office is located properly enclosed in
a post paid wrapper, directed to him at his office. A service thus made is
equivalent to personal service upon liim.

Death or disability of attorney; proceedings thereupon.

§ 65. If an attorney dies, is removed or suspended, or otherwise becomes
disabled to act, at any time before judgment in an action, no further pro-
ceedings shall be taken in the action against the party for whom he appeared,
until thirty days after notice to appoint another attorney has been given
to that party, either personally, or in such other manner as the court
directs.

FORMS.

Certificate of Commencement of Clerkship.

I, the undersigned, a practicing attorney of the Supreme Court of the State
of New York, do hereby certify that , who is upwards of

eighteen years of age, having been born at , on the day of

, has this day entered my office at , N. Y., as a

regular law clerk and student under the rules of the Court of Appeals for
the admission of Attorneys and Counselors-at-law.

Dated

Attorney-at-Law.
2.

Applicant's Affidavit.
Rules IV and VI.

In the Appellate Division of the Supreme Court of the State of New York,
Judicial Department.

In the Matter of the Application of
for Admission to the Bar.

City and County of , 'i

State of New York, i **■ '

, being duly sworn, deposes and says:

First. That he is the applicant above-named and the person mentioned in
the annexed preliminary papers. That he is a citizen of the United States
and of the State of New York. That he is twenty-one years of age and
upwards, to wit: he is years old. That he is a, resident of this

State, and has not been examined for admission to practice and been refused
admission and license within three months immediately preceding the time
of making this application for admission to the bar. That he has resided
for the past six months at No. , street, in the city of ,

New York, in the Judicial Department of said State.

Second. That he has studied law in the manner and according to the con-
ditions prescribed by the rules of the Court of Appeals for the admission of
attorneys and counselors-at-law, as will more fully appear by the annexed
papers.

[263]

264 Court of Appeals Pkactice. [No. 2

Third. Deponent further alleges that he is a graduate of college

(or university), having graduated therefrom on the day of ,

18 , with the degree of , as will more fully appear by deponent's

certificate of graduation, under the seal of said college (or university), hereto
annexed, (or deponent's diploma presented herewith), marked "A." That
said college (or university) is registered with the Board of Regents of the
State of New York as maintaining a satisfactory standard in respect to
the course of study completed by deponent, as will more fully appear by the
certificate of the Board of Regents to that effect hereto annexed, marked
" B."

Fourth. Deponent further alleges, that he completed and passed the regents'
examination, as required by tlie rules of the Court of Appeals, on day

of , 18 , on which a Regents' Law Student Certificate was duly

issued to him; that deponent filed a certificate of such fact, signed by the
Secretary of the University, with the clerk of the Court of Appeals on the
day of , 18 , as will more fully appear by the

annexed certified copy of the regents' certificate filed in the office of the
clerk of the Court of Appeals, showing the date of such filing, marked "C."
(Or, Deponent further alleges, that on the day of , 18 ,

the Board of Regents of the State of New York issued to deponent a Regents
Law Student Certificate, as an equivalent of and substitute for the regents'
examination prescribed by the rules of the Court of Appeals, which said
certificate deponent filed in the office of the clerk of the Court of Appeals on
the day of , 18 , as will more fully appear by the

annexed certified copy of the same, showing the date of filing, hereto annexed
and marked "D.")

Fifth. Deponent further alleges that he served a regular clerkship in the
law office of a practicing attorney of the Supreme Court in this State, after
the age of eighteen years, to wit: in the law office of , at ,

from the day of , IS , to the day of

,18 , as will more fully appear by the annexed certified copy
of the attorney's certificate of commencement of the service of such regular
clerkship and proof of filing thereof in the office of the clerk of the Court
of Appeals, marked " E," and the annexed affidavit of , the

attorney with whom such regular clerkship was served, marked " F." That
deponent did not take more than two months' vacation in any one year during
the service of such clerkship; the vacations taken by deponent being as
follows, viz.: from to , as also appears by the

affidavit of said , hereto annexed.

Sixth. Deponent further alleges that he attended the ha,vr

School, situated at ' , during a school yeai of not less than eight

months, to wit, from , 18 , to , IS , and that he

was of the age of years when ho began his attendance thereon.

The fact of said attendance is proven by the certificate of the teacher (or
president of the faculty) of the said Law School, hereto

annexed, under the seal of. said Law School (if such there be), and marked
" G."

No. 2] FoEMs. 265

Seventh. Deponent further alleges that on the day of ,

18 , he was admitted as an attorney in the Court of the State

of , that being the highest court of original jurisdiction in said

State, and that he remained in said State as a practicing attorney for at
least one year, to wit, from the day of , 18 , to the

day as , 18 , as will more fully appear from the annexed

license or certificate of admission to practice, executed by the proper authori-
ties, marked " H," and by the annexed authenticated eertiiicate, marked " 1,''
of the Hon. , a Judge of said Court (or of the Hon.

County Judge of county, in said State), as required by Rule

V of the Rules of the State Board of Law Examiners.

Eighth. Deponent further alleges that his certificate of commencement of
regular clerkship in the office of a practicing attorney of the Supreme Court
in this State, after the age of eighteen years (or his Regents' Law Student
Certificate), was filed nunc pro tunc with the clerk of the Court of Appeals
as of the date of , 18 , in pursuance of an order of the Court

of Appeals, a certified copy of Avhich order is hereto annexed, marked "J."

Sworn to before me, this 1 o- j. i <. ^■ i

L Signature of Applicant.

day of ,18 J

Note. — The above general form covers every possible condition arising
under the rules for admission to the bar, except (1; under subd. 6 of Rule
VI, where diploma, affidavit or certificate has been lost or destroyed, or
is unjustly refused or withheld, or cannot be procured on account of the
death or absence of the person or officer who should have made it; those
cases are special and exceptional — the form therefor can be readily drafted
by the applicant to meet the facts in his particular case; and also except (2)
under Rule III of the Rules of the State Board of Law Examiners, where
a college or university is not registered with the Board of Regents of the
State of New York as maintaining a satisfactory standard in respect to the
course of study completed by the applicant. In such ease, the applicant must
submit -n ith his diploma or certificate of graduation satisfactory proof of the
course of study completed by him and of the character of the college or uni-
versity of which he claims to he a graduate. That proof is special in each
case, and varies with the college and course of study; it involves the filing
of a statement of the curriculum, affidavit of course of study taken, proof
of educational standing of the college, its requirements for admission, and
graduation in the course of study completed, and such other proofs as the
applicant may deem satisfactory to the board.

266 Court of Appeat.s Peactice. [^o. 3

Attorney's AiRdavit of Service of Clerkship.

Rule V, subds. i and 4; Rule VI, subd. 3.

In the Appellate Division of the Supreme Court of the State of New York,
Judicial Department.

In the Matter of the Application of
for Admission to the Bar.

State of New York,

t'lTY AND COT'NTY OF

, being duly sworn, deposes and says: That he is, and was at
the dates hereinafter stated, a, practicing attorney of the Supreme Court in
this State; that the above-named applicant, after the age of

eighteen years, served a i-pftular clerkship in deponent's law office at ,

commencing on the day of , 18 , and ending on the

day of ,18

That during the service of such clerkship as aforesaid, the said
did not take more than two months' vacation in any one year; the vacations
taken by the said being as follows, viz.: from to

Sworn to before me. this

day of , IK

Note. — See page 154, ante, for note on the rule concerning the taking
of vacations.

APPENDIX.

INSTRUCTIONS OF THE BOARD OF REGENTS OF
THE UNIVERSITY TO LAW STUDENTS.

Knle V of the Court of Appeals.

Snbd. 3. Applicants who are not graduates of a college, or uni-
versity, subject to the limitations and requirements hereinafter,
in this subdivision, expressed or members of the bar as above-
described, before entering ujjon the clerkship, or attendance at a
law school herein prescribed, shall have passed an examination
conducted under the authority and in accordance with the ordi-
nances and rules of the University of the State of J^ew York, in
English, three years; mathematics, two years; Latin, two years;
science, one year ; history, two years ; or in their substantial
equivalents as defined by the rules of the University, and shall
have filed a certificate of such fact, signed by the Commissioner
of Education, with the clerk of the Court of Appeals, whose duty
it shall be to return to the person named therein a certified copy
of the same, showing the date of such filing. The regents may
accept as the equivalent of and substitute for the examination in
this rule prescribed, either, first, a certificate, properly authenti-
cated, of having successfully completed a full year's course of
study in any college, or university; second, a certificate, properly
authenticated, of having satisfactorily completed a four years'
course of study in any institution registered by the regents as
maintaining a satisfactory academic standard; or, third, a Ee-
gents' diploma. All graduates of a college or university existing
under the government or laws of any foreign country other than
those where English is the language of the people and all appli-
cants who apply for law students' certificates upon equivalents or
substitutes, as above provided, all or any part of which are earned
or issued in said foreign countries, shall pass the Regents' examin-

[267]

268 CouBT 01' Appeals Peactice. [Appendix

ation ill second year English. The Eegents' certificate above pre-
scribed shall be deemed to take efFect as of the date of the com-
pletion of the Regents' examination, as the same shall appear upon
said certificate.

Notes on law-student examinations.

1. The rules and other details of the regents' examinations are
given in the Examination Handbook, to be had free on applica-
tion.

2. The court does not allow any equivalents for the individual
studies here named, but only the equivalents for the entire group.
The obvious purpose of excluding equivalents for individual
studies is to fix the normal standard at the completion of a high
school course, as is definitely provided by law in the case of
medical students. Equivalents are therefore reckoned only on this
basis, and not on the minimum of specified examinations which
are still accepted from those unable to offer certificates of having
completed the regular preparation.

'3. The acceptance of equivalents by the regents is permissive,
not mandatory. They accept equivalents, therefore, only in ac-
cordance with the rules found necessary to protect the State
against unqualified candidates.

4. Certificates should be issued in due form by the president,
dean or principal of the institution ; and should be signed under
seal or acknowledged before a notary, unless the institution is
in the University of the State of New York, and the signature
of the officer issuing is well known in the regents' office.

5. The regents count forty weeks as a full academic year. If
the candidate has passed successfully in a registered institution
all the examinations for a full year's work the question of actual
attendance is not raised.

6. The court and the regents both refuse to recognize as a
college or a university an institution which, though taking the
name, in reality does work of a lower grade. Colleges of medi-
cine, pharmacy, dentistry, business colleges and all similar pro-
fessional and technical schools are not registered as colleges. Ap-
plicants for examination for admission to the bar are to be deemed
graduates of colleges or universities, within the meaning and

Appendix] Regents' Insteuctions. '2/69

intent of the rules for the admission of attorneys and counselors-
at-law, when they have successfully completed a course of college
instruction that requires as a condition of graduation at least
six full years in liberal arts and sciences in advance of a com-
pleted eight-year elementary course.

The court also refuses to recognize as " study in a college "
work in an academic or lower department conducted and super-
vised by a college. To be accepted as an equivalent by the regents
the work must have been of college grade.

7. Besides the institutions of higher education in the State of
ISTew York, inspected by the regents, institutions in other States
and countries are registered on reliable information that the mini-
mum standard is fully met. If credentials are offered from any
institution not yet registered (or rejected as below the registration
standard) the necessary investigation will be made as promptly
as possible and the candidate notified whether the credentials
can be accepted. The frequent changes in organization and
standards, and the practical difficulties of recording the grade of
work outside regularly organized institutions, have made neces-
sary the rule that candidates instructed by private tutors or in
unregistered private schools, however excellent, cannot be excused
from taking the examinations by presenting certificates similar to
those accepted from regularly organized and registered institu-
tions.

8. The term " regents' diploma " refers not alone to the classi-
cal, English and academic diplomas which bear that specific
name, but to all graduating credentials whether called certificates
or diplomas, which certify from the university to the completion
of a full academic course. As some candidates prefer to pass
examinations in the higher branches more recently studied rather
than in more elementary subjects in which they have become
rusty, they are allowed to select from the entire list of over sixty
studies in which the regents examine, provided that the total
academic counts equal a full course.

Court Rule II, in effect -luly 1, 1882, prescribes that any per-
son not a graduate of a college or university shall, before enter-
ing upon the clerkship or substituted course of study or within
three months thereafter, pass a regents examination in (1) arith-
metic, (2) English composition, (3) grammar, (4) geography.

270 CouET OF Appeals Peactice. [Appendix

(5) orthography, (6) English history, (7) American history, or
their substantial equivalents.

■Court Kule II, in effect April 13, 1891, prescribes that any
person not a graduate of a college or university registered by the
regents shall, before entering upon the clerkship or substituted
course of study or within one year thereafter, pass a regents
examination in (1) arithmetic, (2) English composition, (3) Eng-
lish history, (i) United States history, (5) first year Latin,

(6) geometry, (Y) civics, or their substantial equivalents. The
law student whose course had begun as shovra by the records of
the Court of Appeals or an incorporated law school of this State
at the date of this rule, could file the law student certificate re-
quired by the court rule of July 1, 1882.

'Court Rule II, in effect October 28, 189'2, prescribes that any
person not a graduate of a college or university registered by the
regents shall, before entering upon the clerkship or substituted
course of study or within one year thereafter, pass a regents
examination in (1) arithmetic, (2) English composition,
(3) English history, (4) United States history, (5) first year
Latin, (6) geometry, (7) civics, or their substantial equivalents.
The law student whose course had begun, as shown by the records
of the Court of Appeals or an incorporated law school of this
State at the date of this rule, could file the law student certifi-
cate required by the court rule of April 13, 1891.

Court Eule V, 3, in effect January 1, 1895, prescribes that
any person not a graduate of a college or university registered
by the Eegents, or a member of the bar, shall, before entering
upon the clerkship or substituted course of study or within one
year thereafter, pass a Eegents examination in (1) arithmetic,
(2) English composition, (3) advanced English, (4) English
history, (5) United States history, (6) first year Latin, (7) ge-
ometry, (8) civics, (9) algebra, (10) economics, or their sul>
stantial equivalents. The law student whose course had begun,
as shown by the records of the Court of Appeals or an incor-
porated law school of this State at the date of this rule, could file
the law student certificate required by the court rule of October
28, 1892.

Law students, who filed the certificate of clerkship or who be-
gan the study of law in a registered law school subsequent to

Appendix] Regents' Insteuctiojn's. 271

July 1, 1907, and prior to June 1, 1908, may obtain the law
student certificate by passing Regents examinations at seventy-
five per cent, in any subjects aggregating sixty counts, or in the
set subjects mentioned in the preceding paragraph except that
second year English must be substituted for first year English.

The exact ground covered by these examinations is shown in
the Regents' Academic Syllabus, mailed prepaid for twenty-five
cents. The calls for sample examination papers grew so burden-
some that further free distribution became impracticable. All
the papers for the year are mailed for twenty-five cents in paper
covers. Unbound sample papers can be had for ten cents for not
exceeding ten subjects.

Law student certitcate.

As is seen from above notes, the regents' law student certifi-
cate may be secured by passing an examination in the subjects
specified in subdivision 3 of Rule V : in English, three years ;
mathematics, two years ; Latin, two years ; science, one year ; his-
tory, two years, or in other subjects, on which examinations are
held, aggregating sixty academic counts, which number of counts
represents the completion of a full four-year academic course.
The meaning of the term " counts " will be seen from the figures
prefixed to the different studies in the following table of subjects
of examination, denominated " Regents' Studies."

On receiving this certificate, the candidate must send it to the
clerk of the Court of Appeals at Albany, who will file it and
return a certified copy on payment of one dollar. The Examina-
tion Department issues but one certificate to each candidate.

The law student certificate takes effect the date of the com-
pletion of the Regents' examination or the equivalent. Regents'
examination in second year English is required of applicants
from foreign countries other than those where English is the lan-
guage of the people for certificates upon equivalents or substi-
tutes.

ACADEMIC SUBJECTS.
Group 1 — Language and Lttebatube.

Enflish, first year 4 English grammar 2

English, second year 3 History English literature 2

English, third year 3 English, 3 years 10

English, fourth year 3 /

272

CouET OF Appeals Pbactice.

[Appendix

Latin, first year 5

Latin, second year 5

Latin, third year 5

Latin, fourth year 5

Latin grammar 0

Latin composition 0

Prose at sight 0

Verse at sight 0

Greek, first year . . .
Greek, second year.
Greek, third year..
Grammar

5 Greek composition 0

5 Prose at sight 0

5 Verse at sight 0

Hebrew, first year.

5 Hebrew, second year .

French, first year...
French, second year

German, first year . .
German, second year.

Spanish, first year. . .
Spanish, second year.

5
5

French, third year 5

French, fourth year 5

German, third year 5

German, fourth year 5

Spanish, third year 5

Italian, first year 5 Italian, second year .

Advanced arithmetic

Algebra

Intermediate algebra
Advanced algebra . .

Group 2 — Mathematics.

2 Plane geometry

5 Solid geometry

2 Trigonometry . .

Group 3 -

Physics 5

Chemistry 5

Biology 5

Elementary botany 2%

Elementary zoology 2%

- Science.

Physiology and hygiene.

Advanced botany

Advanced zoology

Physical geography . . . .

5
5
5

Group 4 — Histop.t and Science.

Ancient history 3 or 5

History of Great Britain and

Ireland 3 or 5

Modern history 1 3

Modern history II 3

American history and civics .... 5

Civics 2

Economics 2

Group 5 — Commercial Sub.tects.

Elementary bookkeeping and

business practice 3

Advanced bookkeeping and office

practice 5

Commercial arithmetic 2%

Business writing 0

Typewriting 2%

Commercial law 2%

History of commerce 3

Commercial geography 2%

Commercial English and corre-
spondence 3

Shorthand I 5

Shorthand 11 5

Groitp G -

Chorus singing and rudiments of

music 2

Harmony and counterpoint 7

- Music.

Musical form and analysis 4

Dictation and melody writing. . . 3

Acoustics and History of music. . 4

Appendix] Regents' Insteuctions. 273

Groit 7 — Drawing.

Design 2 Mechanical drawing II 3

Representation 2 Mechanical drawing III 2

Advanced design 2 Mechanical drawing IV 2

Advanced representation 2 Architectural drawing 2

Mechanical drawing 1 3

Grouf S — Other Subjects.
History and principles of educa- Psychology and principles of ed-
tion 3 ucation' 3

NOTES.

Order of siudies. — There is no restriction in the order in
which studies may be taken.

Time limit. — There is no limit of time, but all credentials
issued by the University are good till canceled for cause.

Seventy-five per rent, of correct answers is required in all
subjects.

Duplicate credentials. — On request at any time for a fee of
iive cents each, duplicates of record cards will be issued, and for
a fee of twenty-five cents a formal certificate showing in in-
dividual cases all subjects passed to date. Such credentials will
meet the needs of those who wish official verification of the school
records either for admission to other schools or before regular
certificates or diplomas have been earned. Duplicates of pro-
fessional credentials, however, such as law and medical student
certificates, will not be issued except on satisfactory evidence of
loss or destruction of originals.

Candidates not attending schools in which Eegents' examina-
tions .are held should send notice at least ten days in advance,
stating at what time and in what studies they wish to be examined,
that required desk room may be provided at the most convenient
place.

Candidates who fail to send this advance notice can be ad-
mitted only so far as there are unoccupied seats.

Professioiml students. — Candidates having credentials which
can be accepted in place of examinations, should send them to the
Examinations Division, State Department of Education.

Special academic tests for professional students are held in New
York city, Albany, Syracuse and Buffalo. A fee of twenty-five
cents for each half day session or one dollar for the sessions of the

274: Court of Appeals Peactice. [Appendix

entire week is required for admission to these examinations.
Candidates should secure ticlcets from Albany ten days in ad-
vance. Those failing to secure tickets in advance vfill be admitted
so far as accommodations will permit, but will be charged an extra
fee of twenty-five cents.

A fee of twenty-five cents is required for each law, . . .
credential.

INSTRirCTIONS TO CANDIDATES

To he read aloud to all candidates hy the principal or deputy
in charge at the beginning of each sessiori.

1. No candidate shall communicate in any way or bring to
the examination, books or helps of any kind, or question any
examiner.

2. At the close of the examination in' each subject each can-
didate must affix to his answer paper, in the line following the last
answer, the following declaration, subscribe his name and then
deliver his answer paper to the examiner:

I now, at the close of the examination in (name subject), de-
clare that prior to this examination I had no knowledge of what
questions were to be proposed, and have neither given nor re-
ceived explanations or other aid in answering any of them.

Every set of answers lacking this declaration, however satisfac-
tory in other respects, will be rejected.

3. Any candidate detected in trying to give or obtain aid will
be instantly dismissed from the room and his papers for the
entire week will be canceled.

4. Any candidate who, with fraudulent intent, endeavors to
obtain any credential of the University shall be debarred from
entering any Regents' examination till admitted by special per-
mission from the University on written application to the secre-
tary. The University reserves the right to revoke any of its
credentials obtained by disregard or violation of any of its rules.
Ignorance of these rules will not be accepted as an excuse.

5. 'So candidate shall enter the examination more than forty-
five minutes late; and no candidate shall leave the room within
forty-five minutes after the distribution of question papers.

(i. Heed strictly all directions on the question papers and read
the questions very carefully. Do not give information that is not
asked for. Write in ink on both sides of the paper. Give special

Appendix]

Eegetv'Ts' Instructions.

275

attention to general order, legibility and neatness. Use only
paper distributed by the examiners.

7. Write answers in the order of the questions. Do not copy
the questions, but write the number of each question in the left
margin before the answer. Leave a line blank after the answer
to each question.

8. Papers should not be folded. At the top of each sheet or
half sheet, should be written, on two separate lines: 1 (subject),
2 (date), 3 (place), 4 (name) ; e. g.

Arithmetic Albany High School

June 15, 1905. James Burns

Go m muni cations. — All communications should be addressed to
Examinations Division, State Department of Education, Albany,
I^. Y.

DAILY PKOGRAM OF EEGENTS' EXAMINATION.

SEPTEMBER 1911-1915.

September examinations are for professional and technical
students only. The day of the week of the September examina-
tions will vary from year to year.

9:15 A. M.
Advanced aritlimatic.
German, first year.
Latin, first year.
Elemenitary algebra.
Intermediate algebra.
Ancient history.
Modern history, 1 and 2

9:15 A. M.
German, second year.
Plane geometry.
Physics.

English grammar.
Commercial geography.

9:15 A. M.
German, third year.
Arithmetic.

American history and civics.
Stenography.
Latin, second year.

1:15 P. M.
English, first year.
English, second year.
English, third year.
English, 3 years.

1:15 P. M.
French, first year.
French, second year.
French, third year.
Physiology' and hygiene.
Economics.

Elementary bookkeeping.
Chemistry.

Advanced bookkeeping.
Latin, third year.

1:15 P. M.
Physical geography.
History of Great Britain and Ireland.
Civics.
Typewriting.
Drawing, design.
Drawing, representation.

276

CouET OP Appeals Peactice.

[Appendix

JANUARY AND JUNE, BEGINNING JUNE, igii.

The oral examination in reading may be held any time during
examination week at the convenience of the examiner.

MONDAY.

9:15 A. M.

Geography.
Elementary algebra.
Intermediate algebra.
Solid geometry.
Advanced algebra.
Advanced bookkeeping

practice.
Harmflny and counterpoint.

and office

1:15 P. M.
Spelling.
Ancient history.
American history with civics.
Civics.

Shorthand, 1 and 2.
Rudiments of music.
Dictation and melody writing.

TUESDAY.

9:15 A. M.
Arithmetic.
Plane geometry.
Advanced arithmetic.
Commercial arithmetic.
Chemistry.
Physics.

Drawing 1, design.
Typewriting.

Acoustics and history of music.
Musical form and analysis.

1 : 15 P. M.

Elementary English.
English, first year.
English, third year.
English, 3 years.
Trigonometry.

WEDNESDAY.

9:15 A. M.

Biology:
Botany.
Zoology.
Physiology.

History English language and lit-
erature.

Latin, 3.

Latin grammar.

Psychology and principles of educa-
tion.

Economics.

Commercial law.

Advanced drawing:

1 Representation.

2 Advanced design.

3 Advanced representation.

1:15 P. M.
Elementary United States history

with civics.
Physical geography.
Advanced botany.
Advanced zoology.

History of Great Britain and Ireland.
Modern history, 1.
Elementary bookkeeping and business

practice.
Business writing.

9:15 A. M.
Latin, 2.
Latin, 4.

Latin prose composition.
Latin prose at sight.
Commercial geography.
Mechanical drawing, 1, 2,

3, 4,

THURSDAY.

1:15 P. M.
Latin, I.

Historv of commerce.
English, 2.
English grammar.
English, 4.

Commercial English and correspond-
: enee.

Appendix]

Regents' Insteugtions.

277

FRIDAY.

9:15 A. M.
Greek, 1.
Greek, 3.

Greek prose composition.
Greek prose at sight.
German, 1, 2, 3, 4.
History and principles o£ education.
Italian, 1, 2.
Hebrew, 1.
Architectural drawing.

1:15 P. M.
Greek verse at sight.
Greek, 2.
Greek grammar.
French, 1, 2, 3, 4.
Spanish, 1, 2, 3.
Hebrew, 2.

TIMES OF EXAMINATIONS.

REGENTS' EXAMINATIONS.

TIMES AND PLACES.
September examinations are for professional and technical students only.
September — New York, Albany, Sj'racuse, Buffalo.
January — 'New York and about 550 academies and high schools.
June — New York and about 575 academies and high schools.

January . .
.June . .
September

1911.

1912.

1913.

1914.

1915.

16-20

15-19

20-24

19-23

18-22

12-16

17-21

16-20

15-19

14-18

18-20

9-11

15-17

14-16

13-15

THE JURISDICTION OF THE COURT OF APPEALS.

The jurisdiction of tlie Court of Appeals is defined by section 9
of article 6 of the State Constitution :

§ 9. After the last day of December, one thousand eight hun-
dred and ninety-five, the jurisdiction of the Court of Appeals,
except where the judgment is of death, shall be limited to the re-
view of questions of law. No unanimous decision of the Ap-
pellate Division of the Supreme Court that there is evidence sup-
porting or tending to sustain a finding of fact or a verdict not
directed by the court, shall be reviewed by the Court of Appeals.
Except where the judgment is of death, appeals may be taken, as
of right, to said court only from judgments or orders entered upon
decisions of the Appellate Division of the Supreme Court, finally
determining actions or special proceedings, and from orders
granting new trials on exceptions, where the appellants stipulate
that upon afiirmance, judgment absolute shall be rendered against
them. The Appellate Division in any department may, however,
allow an appeal upon any question of law which, in its opinion,
ought to be reviewed by the Court of Appeals.

The Legislature may further restrict the jurisdiction of the
Court of Appeals and the right of appeal thereto, but the right to
appeal shall not depend upon the amount involved.

The provisions of this section shall not apply to orders made or
judgments rendered by any General Term before the last day of
December, one thousand eight hundred and ninety-five, but ap-
peals therefrom may be taken under existing jDrovisions of law.

The Legislature has the power to further restrict the jurisdic-
tion of the court, and also to enlarge such jurisdiction, save only
in those special cases which are expressly withdra^vn from review.
People ex rel. Com'rs of Charities v. CuUen, 153 J^. Y. 029;
Hoes V. Edison Oeneral Electric Co., 150 N. Y. 87.

Statutes Regulating thei Juhisdiction oe the Coukt.

The following sections of the Codes of Civil and Criminal Pro-
cedure have been enacted by the Legislature defining the powers

of the Court of A]"ipeals :

[278]

Jurisdiction of the Court of Appeals. 279

Section 190' of the Code of Civil Procedure:

The jurisdiction of the Court of Appeals in civil actions. — The
Court of Appeals has exclusive jurisdiction to review upon appeal
every actual determination made prior to the last day of De-
cember, eighteen hundred and ninety-five, at a General Term of
the Supreme Court, or by either of the superior city courts, as
then constituted, in all cases in vs^hich, under the provisions of law
existing on said day, appeals might be taken to the Court of Ap-
peals. From and after the last day of December, eighteen hun-
dred and ninety-five, the jurisdiction of the Court of Appeals
shall, in civil actions and proceedings, be confined to the review
upon appeal of the actual determination made by the Appellate
Division of the Supreme Court in either of the following cases,
and no others :

1. Appeals may be taken as of right to said court, from judg-
ments of orders finally determining actions or special proceed-
ings, and from orders granting new trials on exceptions, where the
appellants stipulate that upon affirmance, judgment absolute shall
be rendered against them.

3. Appeals may also be taken from determinations of the Ap-
pellate Division of the Supreme Court in any department where
the Appellate Division allows the same, and certifies that one or
more questions of law have arisen which, in its opinion, ought to
be reviewed by the Court of Appeals, in which case the appeal
brings up for review the question or questions so certified, and no
other; and the Court of Appeals shall certify to the Appellate
Division its determination upon such questions. [Amended by
chap. 61 of 1882 and chap. 946 of 1895.]

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

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

See other formats