Olnrn^U Ham ^rlimil Hibrarg Cornell university Librarv 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/cu31924022879278 CLEVENGER'S RULES OF CIVIL PRACTICE CLEVENGER'S Rules of Civil Practice OF the state of new YORK BEING THE OFFICIAL EDITION OF 1922 AND COURT RULES OF COURT OF APPEALS, APPELLATE DIVISIONS, APPELLATE TERMS AND SUPREME COURT ANNOTATED ALPHABETICALLY TO SHOW THE PRECISE POINT DECIDED IN EVERY NEW YORK AND FEDERAL REPORTED CASE RELATING TO PRESENT PRACTICE EDITED AND ANNOTATED BY JOSEPH R. CLEVENGER, A.B., LL.B. OflhTNew York City Bar Author of "Clevenger's Supreme Court Practice" SPECIAL FEATURES Analysis and Sub-analysis of Text; Text Italicized to show all New and Changed Matter; Full Index Completely Alphabetical; Annotated Headnotes made from Text and Arranged in Natural Sequence; Editorial Notes showing Source, Scope, New Matter in Italics, Reoiscrs' Notes, and Correlation between Rules of Civil Practice and Cioil Practice Act and other Acts TABLES Showing Sources of Civil Practice Act, Rules of Civil Practice, Surrogate's Court Act, Justice Court Act, Court of Claims Act, and New York City Court Act; Distributing Sections of Code of Civil Procedure and General Rules of Practice to said Acts and Rules of CioU Practice; American Mortality Tahk; Annuity Table; Time Table NEW YORK JOSEPH R. CLEVENGER WOOLWORTH BUILDING ^ -% O CJ 9 Copyrijhl. 1922 By ANNA L. JOHNSON FOREWORD Instant Answers. " Clevenger's Rules of Civil Practice," like " Clevenger's Supreme Court Practice," is designed to give instant answers to practice questions, thereby serving the daily needs of the busy lawyer by saving his time. Text Changes at a Glance. All new matter added by the Rules of Civil Practice is shown in italics, and all old matter omitted is shown in the annotations under " Editorial Notes." Alphabetical Annotations. The precise point of every New York and Federal reported cases relating to present practice is annotated alphabetically by means of a headnote or Headline and a subnote or Subline followed by a reading note. Each Headline is made from the text of the Rule annotated, and is arranged in natural sequence. Each Subline indexes the subject matter of its reading note, and is arranged alphabetically. The Headline and the Subline with its reading note, taken together, state completely the precise point decided, and furnish both a logical analysis and an alphabetical index. The special use herein of the simple device of a Star (*) marks a distinct advance in the art of annotating statutes by avoiding the serious defect, heretofore found in all statutory annotations, of annotating the same or closely related matters under both affirmative and negative headings, like " Particulars granted " and " Particulars not granted," of dividing contrary views of the same or similar facts, even of separating conflicting cases on precisely the same point, and of requiring the lawyer to read all the cases under both headings to find all the law. Such a division of matter necessarily sacrifices accuracy, clearness and conciseness, as well as time and efficiency, and is never justifiable. Such a defect is caused by using both affirmative and negative headings ; it may be avoided, and all related matters be annotated under one heading, by using only affirmative headings and by using the Star (*) to denote the negative. So herein every heading or Headline is affirmative, like " Particulars granted " ; the negative is denoted by the Star ( * ) , placed before the case cited, which means, reading " Not " into the Headline, " Particulars not granted." For illustration, all unstarred cases show what particulars are granted, and all starred eases show what particulars are " not " granted. Text-book, Digest and Encyclopedia. The fundamental rules and principles of practice law are stated and annotated alphabetically, with all exceptions, qualifications, extensions, limitations, explanations, criticisms, reasons, history, etc., and with all the countless illustrations of the applications of such rules and principles to the varying states of fact of litigated cases, all logically analyzed and alphabetically indexed, thereby imparting the triple nature and quality of a text-book, an exhaustive digest, and a concise but complete encyclopedia of all practice points. ' Assistance Acknowledged. The Editor gratefully acknowledges his indebtedness to Miss Anna L. Johnson for her exceptionally intelligent and strictly accurate work in showing all text changes made by the Rules of Civil Practice by showing new matter in italics and old matter in the annotations, and for her critical care in revising the proof sheets. Woolworth Building, New York, JOSEPH R. CLEVENGER. TABLE OF CONTENTS RULES OF CIVIL PRACTICE PAGE Rules of Civil Practice 1 1. Analysis 1 2. Sub-analysia 3 3. Text of Rules of Civil Practice 9 4. Certificate of filing in Secretary of State's Office 210 Index to Rules of Civil Practice 213 TABLES American Mortality Table 211 Annuitt Table 212 Time Table 222 Distribution Tables 403 1. Code of Civil Procedure . . ... 403 2. General Rules of Practice ... . . .... 474 Source Tables 1. Civil Practice Act 477 2. Rules of Civil Practice ... 512 3. Surrogate's Court Act 520 4. Justice Court Act 527 5. Court of Claims Act 537 6. New York City Court Act 538 7. Complete Consecutive Sections Table of All Practice Acta 541 COURT RULES Rules op Court of Appeals ... 567 1. Rules of Practice 567 2. Rules for Admission of Attorneys . . . . ... 571 Rules op State Board op Law Examiners 577 Rules op Appellate Divisions ... 578 1. First Department 578 2. Second Department .... 581 3. Third Department 585 4. Fourth Department ... . . . . 587 Rules op Appellate Terms . 590 1. First Department . ... . . 590 2. Second Department ... .... .... . . 597 Rules op Supreme Court, Bronx Countt . 599 1. Trial Term Rules . . .599 2. Special Term Rules . . . . 601 Rules op Suprbmb Court, Kings County 602 1. Trial Term Rules 602 2. Special Term Rules 603 Rules op Supreme Court, New York County . . .611 1. Trial Term Rules 611 2. Special Term Rules ... 605 Rules op Supreme Court, Queens County 614 1. Trial Term Rules .614 2. Special Term Rules . 614 CLEVENGER'S RULES OF CIVIL PRACTICE RULES OF CIVIL PRACTICE STATE OF NEW YORK RULES OF CIVIL PRACTICE ADOPTED BY THE Convention to Consider and Adopt Rules of Civil Practice JUNE 17. 1921 Pursuant to Laws of 1920, Chapter 902 As Amended, Laws 1921, Chapter 370 Filed in the office of the Secretary of State at Albany, July 12, 1921. Effective October 1, 1921. ROSTER OF CONVENTION OFFICERS Alfred R. Page, Chairman Harrington Putnam, Vice-Chairman Herbert L. Smith, Secretary COMMITTEE TO FORMULATE RULES Harrington Putnam, Chairman James A. Foley Russell Benedict Louis W. Marcus Edgar T. Braekett Charles D. Newton Alphonso T. Clearwater J. Henry Walters Charles A. Collin Alfred R. Page, ex officio COMMITTEE ON PERMANENT ORGANIZATION John Godfrey Saxe, Chairman Robert F. Wagner *Irving G. Hubbs Charles W. Walton S. Nelson Sawyer Alfred R. Page, ex officio COMMITTEE TO CONSIDER AND PRESENT AMENDMENTS TO THE CIVIL PRACTICE ACT Charles W. Walton, Chairman Charles A. Collin Russell Benedict Louis W. Marcus John Knight Alfred R. Page, ex officio MEMBERS OF THE CONVENTION (Appointed pursuant to the provisions of chapter 902, laws of 1920, and its amendatory act, chapter 370, laws of 1921.) Justices Designated by Justices of the Appellate Divisions 1st Department, Alfred R. Page, 27 Madison Avenue, New York City. 2nd Department, Harrington Putnam, 404 Washington Avenue, Brooklyn, New York. 3rd Department, Aaron V. S. Cochrane, Hudson, New York. 4th Department, *Irving G. Hubbs, Pulaski, New York. *Vice Pascal C. J. De Angelis, resigned. CLEVENOER'8 RULES OF CIVIL PRACTICE xii Justices Designated by the Trial Justices of the Supreme Court 1st Judicial District, Robert F. Wagner, 244 East 86th Street, New York City. 2nd Judicial District, Russell Benedict, 104 Buckingham Road, Brooklyn, New York. 3rd Judicial District, Gilbert D. B. Hasbrouck, Court House, Kingston, New York. 4th Judicial District, Charles C. Van Kirk, Greenwich, New York. 5th Judicial District, Irving R. Devendorf, Herkimer, New York. 6th Judicial District, Abraham L. Kellogg, Oneonta, New York. 7th Judicial District, S. Nelson Sawyer, Palmyra, New York. 8th Judicial District, Louis W. Marcus, City and County Hall, Buffalo, New York. 9th Judicial District, Arthur S. Tompkins, Nyack, New York. Attorneys Named by the Governor 1st Judicial District, John Godfrey Saxe, 30 Broad Street, New York City. 2nd Judicial District, John J. Kuhn, 115 Broadway, New York City. 3rd Judicial District, Alphonso T. Clearwater, Ulster County Savings Bank Building, Kingston, New York. 4th Judicial District, Edgar T. Brackett, Saratoga, New York. 5th Judicial District, Delos M. Cosgrove, 31-35 Jefferson County National Bank Building, Watertown, New York. 6th Judicial District, Hubert C. Stratton, Oxford, New York. 7th Judicial District, James A. Parsons, 25 Eagle Street, Albany, New York. 8th Judicial District, William P. Brennan, 42 Delaware Avenue, Buffalo, New York. 9th Judicial District, Clifford Couch, 1010 Main Street, Peekskill, New York. Eoard of Statutory Consolidation Charles A. Collin, 120 Broadway, New York City. Joint Legislative Committee on Simplification of Civil Practice J. Henry Walters, 1564 Broadwav, New York City. James A. Foley, 243 East 17th Street, New York City. Charles W. Walton, Kingston, New York. John Knight, Arcade, New York. August Flamman, 44 Court Street, Brooklyn, New York. William S. Evans, 46 Cedar Street, New York City. Attorney General Charles D. Newton, 140 State Street, Albany, New York. Office of the Secretary Senate Chamber, Albany, New York. REPORT The Committee appointed pursuant to the vote at the Convention of June 8th last, beg leave to report : That they met and considered the existing general rules of practice, the civil prac- tice act (Laws 1920, chapter 925 with the amendments of 1921) ; the proposed court rules suggested by the joint legislative committee on the simplification of civil prac- tice, as reported to the legislature in 1919; the court rules proposed by the board of statutory consolidation, and suggestions and criticisms by bar associations, judges and lawyers. Since the meeting of the convention, September 20-21, 1920, the committee have considered later suggestions from the bar associations of the state and of the city of New York as well as proposals from members of the bar throughout the state. The committee have made changes in forty-one rules previously recommended, suggested the omission of one, and offered two new rules. They now recommend for adoption the accompanying court rules for civil practice, as generally applicable to our different civil courts, except the court for the trial of impeachments, and the court of appeals. xiii RULES OP CIVIL PRACTICE In view of the differing conditions in the several surrogate courts of the state, the committee conchided that it would now be unwise to formulate general rules for the surrogate's courts. As minor diversities also exist in the calendar practice in the different appellate divisions, it was thought preferable to leave such matters of local practice to fall under the rules by the respective appellate divisions. The subject of arbitration, dealt with in the civil practice act (article 83), had been further enlarged by the laws of 1920, chapter 275. It has not been suggested to your committee that special rules for arbitration are required. A table at the end of our rules indicates what use has been made of the general rules of practice now in force, and where our proposed rules treat of the same sub- ject. The committee have also drawn rules (numbers 210-214) for the new field of declaratory judgments authorized by the civil practice act, § 473. The American Experience Table of Mortality, adopted in rule 243 is appended, to- gether with a table showing the present value of an immediate annuity on one dollar on a single life at five per centum interest, taken from "Inheritance Tax Calculations" by S. H. Wolfe. The rules here reported have been read and revised in joint meeting of the com- mittee, and embody our unanimous judgment. HARRINGTON PUTNAM, Chairman, RUSSELL BENEDICT, EDGAR T. BRACKETT, A. T. CLEARWATER, CHARLES A. COLLIN, JAMES A. FOLEY, LOUIS W. MARCUS, CHARLES D. NEWTON, ALFRED R. PAGE, J. HENRY WALTERS, Committee to Formulate Rules. Dated, May 24, 1921. RULES OF CIVIL PRACTICE Adopted by the convention to consider and adopt rules of civil practice, held at the capitol in the city of Albany, beginning at noon of the second Tuesday of June, one thousand nine hundred and twenty, pursuant to chapter nine hundred and two of the laws of the state of New York for the year one thousand nine hundred and twenty, as amended by chapter three hundred and seventy of the laws of nineteen hundred and twenty-one, "binding upon all the courts in this state and all the justices and judges thereof, except the court for the trial of impeachments and the court of appeals." [In effect October 1, 1921.] Title 1. Courts; miscellaneous provisions (Rules 1-9) [Sub-analysis p. 3] 2. Papers and the filing thereof (Rules 10-16) [Sub-analysis p. 3] 3. Service of papers (Rules 20, 21) [Sub-analysis p. 3] 4. Security (Rules 25-27) [Sub-analysis p. 3] 5. Pajnaient into court (Rules 30-34) [Sub-analysis p. 3] 6. Action by or against poor person (Rules 35-37) [Sub-analysis p. 3] 7. Guardians ad litem and special guardians (Rules 39-44) [Sub-analysis p. 3] 8. Summons and the service thereof (Rules 45-53) [Sub-analysis p. 3] 9. Appearance (Rules 55, 56) [Sub-analysis p. 3] ^0. Motions (Rules 60-67) [Sub-analysis p. 3] 11. Orders (Rules 70-74) [Sub-analysis p. 3] 12. Arrest, injunction and attachment (Rules 80-84) [Sub-analysis p. 3] 13. Extension of time (Rules 85-88) [Sub-analysis p. 3] 14. Pleadings (Rules 90-116) [Sub-analysis p. 3] 15. Depositions to be used within the state (Rules 120-133) [Sub-analysis p. 3] 16. Depositions to be used without the state (Rules 136, 137) [Sub-analysis p. 3] 17. Perpetuation of testimony in real property actions (Rule 138). [Sub-analysis p. 3] 18. Discovery and inspection (Rules 140-142) [Sub-analysis p. 3] 19. Change of venue (Rules 145-147) [Sub-analysis p. 3] 20. Notice of trial and of issue (Rules 150, 151) [Sub-analysis p. 3] 21. Trial (Rules 155-166) [Sub-analysis p. 3] 22. References (Rules 170-173) [Sub-analysis p. 3] 23. Receivers (Rules 175-180) [Sub-analysis p. 3] 24. Judgment (Rules 185-204) [Sub-analysis p. 3] 25. Declaratory judgment (Rules 210-214) [Sub-analysis p. 3] 26. New trial (Rules 220-224) [Sub-analysis p. 3^ 27. Appeals (Rules 229-239) [Sub-analysis p. 3] 28. Action to recover real property (Rules 240, 241) [Sub-analysis p 31 [1] t. 29-36 OLEVENGER'S RULES OF CIVIL PRACTICE 2 Title 29. Action for dower (Rule 243) [Sub-analysis p. 3] 30. Action for partition (Rules 245-251) [Sub-analysis p. 3] 31. Action for foreclosure (Rules 255-267) [Sub-analysis p. 3] 32. Action to recover chattel (Rules 270-273) [Sub-analysis p. 3] 33. Matrimonial actions (Rules 275-283) [Sub-analysis p. 3] 34. Committee of incompetent person (Rules 285-288) [Sub-analysis p. 3] 35. Infants; their guardianship and maintenance (Rules 290-294). [Sub-analysis p. 3] 36. Disposition of real property of infants or incompetents (Rules 295-300) [Sub-analysis p. 3] SUB-ANALYSIS TITLE 1— COURTS; MISCELLANEOUS PROVISIONS Rule 1. Applications for admission as attorneys. 2. Courts may make further rules. 3. Provisions applicable to proceedings in surrogates' courts. 4. Oral agreement between parties or counsel. 5. County judge; when time begins to run if disqualified. 6. Compelling officer to return, deliver or file paper. 7. Books to be kept by clerks of courts. 8. Notice to present claims. 9. Term "proceeding" refers to special proceedings. TITLE 2— PAPERS AND THE FILING THEREOF Eule 10. Legibility and size of papers. 11. Subscription and indorsement by attorney. 12. Waiver of objection to requirements. 13. Subscription and indorsement of writs and other process. 14. Lost or withheld papers. 15. Filing papers generally. 16. Special rules for indorsing and filing papers. TITLE 3— SERVICE OF PAPERS Eule 20. Mode of service of papers generally. 21. Manner of service of papers to begin a proceeding. TITLE 4— SECURITY Eule 25. Form and requisites of bond or undertaking. 26. Failure to file required bond or undertaking. 27. Attorneys not to be sureties or bail. TITLE 5— PAYMENT INTO COURT Eule 30. Administration of court funds; gross sum in lieu of income. 31. Consents to payment of money out of court. 32. Eequirements as to orders for payment of money out of court. 33. Eequirements as to drafts for the payment of money out of court. 34. Duties of depositories of moneys paid into court. TITLE 6— ACTION BY OR AGAINST POOR PERSON Eule 35. Petition for leave to sue as poor person. 36. Order to sue as poor person. 37. Leave to defend as poor person. TITLE 7— GUARDIANS AD LITEM AND SPECIAL GUARDIANS Eule 39. Time to apply for gfuardian ad litem for infant defendant. 40. Qualifications of guardians ad litem and special guardians. 41. Security of guardian? ad litem and special guardians. 42. Duty of guardian ad litem. 43. Compensation of guardian ad litem or special guardian. 44. Duty of person designated to receive summons in behalf of an infant or incompetent; compensation. TITLE 8— SUMMONS AND THE SERVICE THEREOF Eule 45. Requisites of summons. 46. Notice with summons demanding money judgment. 47. Notice with summons in matrimonial actions. 48. Form of supplemental summons. 49. Papers to be filed in case of substituted service on resident defend- ant; when service complete. [3] t. 9-14 CLEVENGER'S RULES OF CIVIL PRACTICE 4 Rule 50. Order for service of smmnons by publication; contents. 51. Time of jmblication or making service without the state; when service complete. 52. Papers to be filed on service by publication or without the state; notice to defendant. 53. Proof of service of summons. TITLE 9— APPEARANCE Pule 55. Authority for appearance of attorney in real property action. 56. Substitution of attorney. TITLE 10— MOTIONS Eule 60. Time of notice of motion. 61. Ex parte motions. 62. Motion based on defect or irregularity. 63. Motions; where made. 64. Answering affidavits on motion. 65. Papers on motion. 66. Default on motion. 67. Transfer of motion. TITLE 11— ORDERS Eule 70. Form and resettlement of order. 71. riling papers on entry of order. 72. Opinion on granting order. 73. Entry of papers in county other than where motion made. 74. Enrolling and doolieting order in certain cases. TITLE 12— ARREST, INJUNCTION AND ATTACHMENT Eule 80. Affidavit on application for order or warrant to be filed. 81. Proof of facts relating to amount of bail on arrest. 82. Order of arrest; how signed; contents. 83. Application to vacate order of arrest, reduce bail or increase secui- ity. 84. Issuance and attestation of warrant of attachment. TITLE 13— EXTENSION OF TIME Eule 85. AfB-davits to be served with order of extension. 86. Extension of time to answer in action on note, etc. 87. Additional extension of time to plead. 88. Affidavit on extension of time to answer or reply. TITLE 14— PLEADINGS Eule 90. Formal requirements of pleadings. 91. Pleadings; how subscribed. 92. Conditions precedent ; how pleaded. 93. Pleadings by or against corporation. 94. Instrument for payment of money; how pleaded. 95. Pleading judgment or determination. 96. Pleading in libel and slander. 97. Pleading in action for slander of a woman. 98. Private statute; how pleaded. 99. By whom verification made. 100. Form of affidavit of verification. 101. Service of amended pleading. 102. Motion to correct pleading. 103. Striking out matter contained in a pleading. 104. Sham or frivolous answer or reply. 105. Motion addressed to pleading. 106. Motion for judgment ; when the defect appears on face of complaint. 107. Motion for judgment ; when the defect does not appear on face of complaint. 108. Determination of the motion. 109. Plaintiff's motion on the answer. 110. Plaintiff's motion; when defect does not appear on face of answer. 5 SUB-ANALYSIS t. 15-22 Rule 111. Motion on reply. 112. Motion for judgment on the pleadings after issue joined. 113. Summary judgment. 114. Partial judgment. 115. Cost on motion for bill of particulars. 116. Verification of bill of particulars. TITLE 15— DEPOSITIONS TO BE USED WITHIN THE STATE Eule 120. Deposition to be used on motion. 121. Notice of taking testimony by deposition. 122. Application for an order for a deposition. 123. Proof on application for order to perpetuate testimony for future action. 124. Motion to vacate notice. 125. Certain papers relating to depositions to be filed. 126. Service and settlement of interrogatories. 127. Time and place of taking testimony; adjournments. 128. Papers to authorize oflScer or person to proceed with examination. 129. Manner of taking testimony by deposition. 130. Special provisions as to depositions taken without the state. 131. Provisions relating to filing of depositions and papers from with- out the state. 132. Where depositions are to be filed and kept. 133. When deposition taken without the state may be suppressed. TITLE 16— DEPOSITIONS TO BE USED WITHOUT TEE STATE Eule 136. Subpoena to compel attendance of witness to obtain testimony for use without the state and proceedings thereon. 137. Punishment of disobedient witness. TITLE 17— PERPETUATION OF TESTIMONY IN REAL PROPERTY ACTIONS Eule 138. Petition to perpetuate testimony in real property actions. TITLE 18— DISCOVERY AND INSPECTION Eule 140. Application for discovery. 141. Hearing of application; order. 142. Eeferee to superintend discovery or inspection. TITLE 19— CHANGE OF VENUE Eule 145. Stay of proceedings for change of venue. 146. Demand for change of place of trial. 147. Taking effect of order changing place of trial. TITLE 20— NOTICE OF TRIAL AND OF ISSUE Eule 150. Notice of trial. 151. Note of issue. TITLE 21— TRIAL Eule 155. Order containing stay. 156. Motion for dismissal of complaint. 157. Settlement of issues for trial by jury. 158. Terms at which issues of fact triable. 159. Stipulation for trial elsewhere than at court house. 160. Papers to be furnished on trial. 161. Opening and closing speeches and examinations. 162. Production of books and papers by library associations, public de- partments and officers. 163. Application for order to produce prisoner as a witness. 164. Jurors may be excluded from court room. 165. Entry of verdict. 166. Defects in pleadings; variance; failure of proof. TITLE 22— REFERENCES Rule 170. References other than for trial of issues or foreclosure computation. 171. Eeferee to be sworn. 172. Qualifications of a referee. 173. Deposit by referee. t. 23-28 GLEVENGEB'S RULES OF CIVIL PRACTICE 6 TITLE 23— RECEIVERS Eule 175. Duties of a receiver of debtor's estate. 176. Security for costs by receiver before action. 177. Application by receiver in supplementary proceedings for leave to sue. 178. Sequestration of property of corporation; receiver thereof. 179. Where motion made for removal of receiver; extension of receiver- ship. 180. Power of receiver to employ counsel. TITLE 24— JUDGMENT Eule 185. Form of judgment generally. 186. Judgment against dead person. 187. Final judgment on decision or report awarding interlocutory judg- ment. 188. Interlocutory and final judgment on default or decision. 189. Proof to be filed on application to court on default. 190. Notice to defendant on application to the court for judgment. 191. Application for judgment on failure to answer. 192. Proceedings on application for default judgment if service without the state or not personally. 193. Judgment on trial if some defendants default. 194. Judgment after jury trial of specific questions of fact. 195. Judgment after trial of issues and determination of motion for judgment. 196. Judgment on motion. 197. Powers of court on application after decision of motion for judg- ment. 198. Judgment after trial of whole issue of fact. 199. Judgment after reference to determine specific questions of fact. 200. Application for additional allowance. 201. Entry of judgment generally. 202. Judgment-roll; regulations affecting. 203. Stay of judgment and enforcement. 204. Satisfaction of judgment wholly or partly. TITLE 25— DECLARATORY JUDGMENT Eule 210. Practice assimilated. 211. Prayer for relief. 212. Jurisdiction discretionary. 213. Verdict of jury on facts. 214. Costs. TITLE 26— NEW TRIAL Eule 220. Motion for new trial on exceptions to be heard in the first instance in appellate division. 221. Motion for new trial at special term. 222. Eeview of interlocutory reference or inquisition. 223. When notes of stenographer treated as minutes of judge. 224. When order on motion for new trial to specify grounds. TITLE 27— APPEALS Eule 229. Bill of exceptions. 230. Case and bill of exceptions; service; amendment and settlement. 231. Failure to make case. 232. Bill of exceptions; case; resettlement; exhibits. 233. Extension of time for serving case on appeal or amendments. 234. Papers constituting record on appeal. 235. Records and briefs on appeal; printing, indexing and delivery. 236. Briefs and points to be exchanged by parties. 237. Calendar practice; notes of issue; default judgments. 238. Opinions; copies and publication. 239. Orders of appellate division on reversal. TITLE 28— ACTION TO RECOVER REAL PROPERTY Eule 240. Description of property in complaint. 7 SUB-ANALYB18 t. 29-35 TITLE 29— ACTION FOR DOWER Kule 243. Dower; payment of gross sum. TITLE 30— ACTION FOR PARTITION Bule 245. General requirements as to complaint. 246. Ascertainment by court of rights of parties before interlocutory judgment. 247. Eeference on default or admission in case of infants, absentees or unknown parties. 248. Proof required on application by party for money paid into court. 249. Notice of stay of sale. 250. Eeferee to be selected by the court. 251. Proceedings on death of parties. TITLE 31— ACTION FOR FORECLOSURE Rule 255. Complaint to state whether action for mortgage debt has been brought. 256. Reference on default or admission. 257. Application for judgment on default or admission. 258. Proof of notice of pendency. 259. Contents of judgment of sale. 260. Notice of application for stay of sale. 261. Disposition of surplus. 262. Application for surplus moneys; reference. 263. Proceedings before referee. 264. When surplus to be paid into surrogate's court. 265. Eeferee to be selected by court. 266. Mortgage and assignments to be filed or recorded before conveyance. 267. Application to personal property liens. TITLE 32— ACTION TO RECOVER CHATTEL Eule 270. How title to chattel pleaded. 271. Pleading wrongful taking or detention. 272. Answer that property was distrained doing damage. 273. Eeplevin papers to he furnished court or referee. TITLE 33— MATRIMONIAL ACTIONS Eule 275. Proof required for judgment by default in actions for annulment of marriage. 276. Order allowing next friend to maintain action. 277. Proof required on default. 278. Information as to details of matrimonial actions. 279. Pleading and trial of issue of illegitimacy of children. 280. Complaint in action for separation. 281. Eeference in matrimonial action. 282. Eeference on default not permitted in action to annul a marriage or for divorce or separation. 283. Judgment declaring marriage void or granting a divorce not to be by default; judgment to be entered by court. TITLE 34— COMMITTEE OF INCOMPETENT PERSON Eule 285. Person; how designated in proceedings for appointment of com- mittee. 286. Petition for committee; where to be presented. 287. Contents of petition. 288. Fees and expenses of inquisition in lunacy. TITLE 35— INFANTS; THEIR GUARDIANSHIP AND MAINTENANCE Eule 290. Petition for appointment. 291. Age of infant and amount of property to be ascertained by court. 292. Bond of general guardian. 293. Allowances for support of infants. 294. Application to compromise infants' claims. t- 36 CLEVENOEB'S RULES OF CIVIL PRACTICE 8 TITLE 36— DISPOSITION OF E.EAL PROPERTY OF INFANTS OR INCOMPETENTS Eule 295. Place of application. 296. Notice of application. 297. Contents of petition. 298. Eeport of referee. 299. When proceeds of sale of real property of infant may be paid to general guardian. 300. Limitation on costs and fees in proceedings to dispose of real prop- erty of infant. TITLE 1 COURTS; MISCELLANEOUS PROVISIONS Rule 1. Applications for admission as attorneys. 2. Ckjurts may make further rules. 3. Provisions applicable to proceedings in surrogates' courts. 4. Oral agreement 'between parties or counsel. 5. County judge ; when time begins to run if disqualified. 6. Compelling officer to return, deliver or file paper. 7. Books to be kept by clerks of courts. 8. Notice to present claims. 9. Term " proceeding " refers to special proceedings. EDITORIAi; N-QTES — CiTil Practice Act references; Courts, judges and referees, CPA §§ 62-81; Short title.; construction and definitions, CPA §§ 1-9; General powers of courts of record to make new process and forms of proceedings. CPA § 63; Application of certain provisions to various courts, CPA § 1572. General Constractlon J,a,vr references: Mean-< ing of terms, GCL §§ 10-58; References, titles and headnotes, GCL §§ 80-81; Effect of repeals, GCL, §§ 90-96; Effect of consoli-i dated laws, GCL, § 100-101; Application of chapter, GCL. § 110. Rule 1. Applications for admission as attorneys. Within the first ten days of each, year the appellate division in each department shall name a committee o£ not less than three practicing lawyers for each judicial district within its department, which com- mittee shall investigate the character and fitness of every applicant for admission to the bar. Each of such committees shall continue until its successor is appointed, and all applications for admission to the iar of persons residing within a district shall be referred to the committee for such district. Unless otherwise ordered! by the court, no person shall be admitted to the bar without a certificate from the proper committee that it has carefully investigated the character and fitness of the applicant and that, in such respects, he is entitled to admission. Such committee shall have power to pre- scribe a form of written statement of the applicant's experience, from which the com- mittee may pass on his moral and general fitness. If such applicant has before applied for admission to the bar in this or any other state, the applicant shall set forth the same with the particulars thereof. If his application has been rejected or disapproved by the committee on character of an appellate division, he shall obtain the consent of that appellate division to the renewal of his application in any other department. No person shall receive a certificate from any such committee who does not satisfy the com- mittee that he believes in the form of, and is loyal to, the government of the United States. Each applicant for admission must present to the court where he shall applij for admission proof that he has complied with the rules of the court of appeals relating to admission to the bar. No person shall be admitted until he has proven that he is a citizen of the United States and an actual resident of the state of New York for six months prior to the making of the application. He shall specify the place of his resi- dence by street and number, if such there be, and the length of time he has been such resident. The clerk of the appellate division must file in his office all the papers presented and acted on by the court on each application for admission. Court Rules references: Court of Appeals rules for admission of attorneys and coun- selors at law, rr I-X; New York State Board of Law Examiners, rr I-VI; Appel- late Division, First Department, r XII; Appellate Division, Second Department, r XXIV; Appellate Division, Third Depart- ment, r XV. Judiciary I.aw references: Admission to and removal from practice by appellate division, JL § 88. Star (*) means read Not into HEABI^IITE in capitals. The use of this simple device marks a distinct advance in the art of annotating statutes by avoiding the serious defect, heretpforg found in all annotations, ESITORIAI^ WOTES— Source: General Rule of Practice 1. For- merly Daw Rule 1 of 1847; Rules 1 and 2 of 1849; Rules 1 and 2 of 1852, both amended; Rules 1 and 2 of 1858, both amended; Rules 1 and a of 1871, both amended; Rules 1 and 2 of 1874, both amended; Rule 1 of 1877 amended; Rule 1 of 1880, amended; Rule 1 of 1884; Rule 1 of 1888, amended; Rule 1 of 1896, 1900; Rule 1 of 1910, amended; Rule 1 of 1913. Text in italics is new matter, inserted by the Rules Committee June 17, 1921. Civil Practice Rules references; Books con- taining the records of attorneys to be kept by clerks of appellate divisions, RCP 7. [9] rr. 1-3 GLEVENGER'8 RULES OF CIVIL PRACTICE 10 of annotating: the same or closely related matters under two headings and in two places and even of separating conflicting cases on preci,sely the same point. Such defect is caused by using both affirmative and negative headings lilce "Particulars granted" and "Particulars not granted." Such faulty method necessarily sacrifices accuracy, clearness and conciseness. Such defect may be avoided and all related mat- ters annotated under one heading by using only affirmative headings and by using the Star (*) to denote the negative. Herein the precise point of every case is presented by means of a Headline, often covering many cases, plus a Subline followed by a reading note. All Headlines are made from the Text of the Rule annotated, and are arranged in natural sequence. Bach Headline is affirmative, like "Particulars granted"; the negative Is denoted by the Star (*), which means, reading "Not" into the Headline, "Particulars not granted." All unstarred cases show what particulars are granted, and all starred cases show what particulars are "not" granted. Do not confuse the Headline printed in capi- tals with the Subline printed in lower case black face. Rule 2. Courts may make further rules. The appellate division in each department and any other court of record may make such other, or further, rule for the conduct of business before it as it may deem necessary and which is not inconsistent with the following rules. ESITOBIAI^ NOTES — Source: General Rules of Practice 47, last paragraph, and 83. See CPA § 63, subdivi- sion 3. General Rule 47, last i)aragraph, was formerly Rule 49 of 1877; Rule 46 of 1880; Rule 46 of 1884; Rule 46 of 1888; Rule 47 of 1896; Rule 47 of 1900; Rule 47 of 1910; Rule 47 of 1913. General Rule 83 was formerly Rule 96 of 1871; Rule 96 of 1874; Rule 90 of 1877; Rule 84 of 1880; Rule 84 of 1884; Rule 84 of 1888; Rule 83 of 1896; Rule 83 of 1900; Rule 83 of 1910; Rule 83 of 1913. General Rule 47, last paragraph, read: "The Appellate Division in any de- partment may make such further or differ- ent regulations upon these subjects as it may deem proper." General Rule 83 read: " The Appellate Division in each depart- ment, and the various courts of record, may make such further rules in regard to the transaction of business before them respec- tively, not inconsistent with the foregoing rules as they in their discretion may deem necessary." Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: General pow- ers of courts of record to devise and make new process and forms of proceedings, CPA § 63, subd. 3. Civil courts of record: court for trial of im- peachments, court of appeals, appellate divisions, supreme court, court of claims, county courts, surrogate courts, city court of the city of New York, city court of Yonkers, municipal court of the city of New York, and sueh. other local courts as are now constituted courts of record (Ju- diciary Law, § 2; Municipal Court Code, § 1). Star (*) means read Not into SEADKINE in capitals. For illustration see Rule 1. CODltT RUIZES AUTHORIZED — Appellate Divisions: First Department, Spe- cial Term Rule 14, regulating the practice of referees and the notice to be given of judicial sale and effect of such notice of sale (Francis 72 AD 15, 76 NYS 106). Appellate Terms; (See infra). Court of Ai>peals: (See infra). Court of Claims: (Court of Claims Act § 14). New York City Court: (NY City Court Act § 45). New York City Municipal Court: (NT City Municipal Court Code, § 8). Surrog'ate'E Court: (See infra). Rule 3. Provisions applicable to proceedings in surrogates' courts. Except where a contrary intent is expressed in, or plainly implied from, the context, a provision of rules applicable to practice or procedure in the supreme court applies to surrogates' courts and to the proceedings therein so far as they can be applied to the substance and subject matter of a proceeding without regard to its form. EDITORIAX NOTES — Source: Surrogates Court Act § 316 (as re- vised by Li 1920, c 928, from CCP § 2770, as revised by L 1914, c 443, from CCP § 2538) verbatim, except rule heading and except "of" omitted after "context" and "of law or" omitted after "provision." Text in italics is new matter, inserted in SCA § 316 as revised by L 1920, c 928, from CC;P § 2770, which read: "» » » a provi- sion of this chapter, all other portions of this act, and the general rules of practice apply to surrogates' courts," etc. Revisers' Note of 1921: Rule 3 is stated by the Rules Committee to be " new," whereas as early as 1880 it was inserted as "new" in CCP § 21538 from which SCA § 316 was originally revised, as above stated. Revisers' Note of 1920; SCA § 316 is stated to be COP § 2770, " without change," where- as its wording has been changed, as above noted, under " Text in italics." Revisers' Note of 1914: On account of en- larged jurisdiction, jury trial, etc., we omit specifications of certain parts, namely, title first, and articles third and fourth of title sixth, of chapter eighth, and articles first and second of title third of chapter ninth, of the Code of Civil Procedure, and include all the Code, as limited by the language used in CCP § 2538 as originally inserted in 1880. Revisers' Note of 1880: CCP § 2538 is new. CCP §§ 721-730, entitled "Mistakes, omis- sions, defects, and Irregularities," are made applicable to surrogates' courts, thereby introducing a new rule. CCP §§ 796-802, entitled " Service of Papers," are also made applicable, codifying the prevailing prac- tice. Likewise CCP §§ 803-809. entitled " Discovery of books and papers," already applicable by 2 RS 221, § 6. Also CCP §§ 870-886, entitled "Deposition taken and to be used within the State," new to such courts. So also COP §§ 887-913, entitled " Depositions taken without the State for use within the State," already applicable to surrogates' courts. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. PROVISIONS AFFI-ICABI^E TO SURRO- QATE'S COURT — Appeal and error; stay of proceedings by filing of undertaking on motion for leave to appeal (Kennedy's Estate 110 Mis 92. 179 NTS 766). Bonds, undertaking's and sureties: ('Surro- gate's Court Act §§ 105-117). Commissions and compensation: of execu- tors, administrators, guardians and trus- tees ('Surrogate's Court Act § 285). 11 COURTS; MISCELLANEOUS PROVISIONS rr. 3,4 Costs: granting of, to proponent on appeal where general term made no direction (Hatten 6 Dem 446). Costs and fees; ('Surrogate's Court Act §§ 275-284, 286-287). Seposltibna : application for commission to take, where issue pending (Shannon 180 AD 214, 167 NYiS 472); taking of outside of state (Plumb 19 NYS 79). Discovery: examination of proponent before trial (PxLew 229 NY 84; Carter 193 AD 355, 184 NYS 39; Hodgmann 113 Mis 215, 184 NYS 185; PvFowler 107 Mis 253, 176 NYS 806; •PvPowler 189 AD 335, 178 NTS 500, rvg 107 Mis 253, 176 NYS 806; 'Hodg- mann;s Will 107 Mis 70, 175 NYS 608); ex- amination of witnesses before trial ('Dela- plaine 6 Dem 269); filing of notice, question not decided (McGovern 5 Dem 425). Executors and. administrators: notice of re- jection of claim (Miller 147 AD 214, 131 NTS 1041); physical examination before trial, question not decided (Leland 175 AD 56 161 NYS 315); public administrator, dis- tribution of balance payable to unknown persons (•Hammer 105 Mis 721, 174 NYS 887). Qnardians: ('Surrogate's Court Act §§ 172- 194). Order to show cause: shortening time of notice of ('See Filley's Estate 20 NYS 427). Proceedings, pleadings and process: ('Sur- rogate's Court Act §§ 48-87). Reference: indorsement by referee of rul- ings on requested findings (Troughton's Estate 101 Mis 3&6, 166 NYS 1077). Trial by jury: (Bull 111 NY 624; see Corley 149 NT 228). Verdict: certification to surrogate's court by clerk of court in which tried (See Hatten 22 AbNC 66n). Wills, probate of: judge's direction to jury to render verdict subject to his opinion (Dorsey 94 Mis 566, 157 NYS 662); motion for judgment on special verdict, by whom made and where (Dorsey 94 Mis 566, 157 NYS 662); motion for rew trial on judge's minutes without case (Dorsey 94 Mis 566, 157 NYS 662); parties who may contest probate of ('Zimmerman 104 Mis 516, 172 NYS 80); set aside verdict and for new trial (Dunn 94 Mis 578, 158 NYS 119); waiver of jury trial ('Carnright 180 AD 21, 167 NYS 438). Rule 4. Oral agreement between parties or counsel. An agreement between parties or their attorneys relating to any matter in an action or a proceeding shall not be bind- ing unless in writing subscribed by the party, or by his attorney or eotinsel, or reduced by consent to the form of an order and entered. This rule shall not apply to oral stipulations betiveen counsel made in open court. Contractual: containing mutual rights and obligations ('Grand St Realty Co [Jan 10, 1922] 66 NYDJ 1251). Discontinuance: (Connell 21 Mis 609, 48 NYS 77; 'Gaillard 6 Cow 382). Extension of time: to answer (Friedland 136 AD 6, 120 NYS 12i6; Wager 3 Paige 407); to put in special bail and plead (Broome 1 Sandf 664); to set aside judgment entered on referee's report (Leese 3 How 63). Mortgage foreclosure: forbearance to sue (Bradford 25 AD 681, 49 NYS 521); vaca- tion of deficiency judgment, agreed to by managing clerk of plaintiff's attornev (Mutual Life Ins Co 146 NY 275, 40 NBI 787). Referee: hearing before (See DeSimone 164' AD 956, 149 NYS 1078); postponing report of until testimony of certain witnesses ob- tained (Combs 1 Cai 147). Representation acted upon: party making it cannot be permitted to retract and take advantage of acts or omissions of his ad- versary CPvStephens 52 NY 306; 'Zweeker 135 AD 432, 120 NYS 425; 'Montgomery b" How 326; 'Stinnard 1 How 169; 'Turner 1 Hill 627; 'Grand St Realty Co [Jan 10, 1922] 66 NTLJ 1251). Undertaldng: waiving filing of. In appeal from justice's to county court (Lauch 85 Mis 491, 148 NYS 933). 'Venue: change of (Parker 7 Johns 320). Waiver: of irregularities (Bain 2 Cai 95). Writing withdrawn: correspondence propos- ing terms of settlement withdrawn before acceptance but subsequently agreed to orally (Keeler 7 NYS 199). ORAI, AGREEMENTS EET'WEEIT ATTOR- NEYS ON ENTERED ORDER ARE BINDING — Trespass: four cases of, to abide the event of case first tried (Dubois 3 Johns 145). Venue: change of, not obtained by fraud (Fitah 18 How 314). ORAIi STIPUI^ATIONS BETWEEN COUN- SEI^ IN OPEN COURT ARE BINDING — Contract: whether sum fixed Intended as penalty or liquidated damages (Staples 41 Barb 648). Easements: of light and air arranged for accommodation of both parties by defend- ant (Banks 4 SandfCh 438). EDITORIAXi NOTES — Source: General Rule of Practice 11, except- ing oral stipulations in open court. For- merly Law Rule 64 and Equity Rule 84; Rule 40 of 1849; Rule 37 of 1862; 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 11 of 1888; Rule 11 of 1896; Rule 11 of 1900; Rule 11 of 1910; Rule 11 of 1913. General Rule 11 read: "No pri- vate agreemrent or consent between the parties or their attorneys, in respect to the proceedings in: a cause, shall be binding, 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 whdmr the same shall be alleged, or by his attorney or counsel." Text in italics is new matter, inserted in Rules of Civil Practice in 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. OBJECT OP ■RVUl — Relieve courts: from constant determination of controverted questions of fact arising as result of oral stipulations (Mutual Life Ins. Co 146 NY 275, 40 NE 787; Paterson 83 Hun 492, 32 NYS 32; Keeler 7 NTS 199; Mason & Hamlin Organ Co 19 Hun 282). HISTORY — Pormerly: rule 16 of Supreme Court, dating as far back as 1796 (PvStephens 52 NY 306). ORAI, AGREEMENTS BETWEEN PARTIES OUT OP COURT ARE VOID — Adjournment: of trial (Shadwick 3 Cai 129). Disbursements: amount of (Rust 8 AbNC 148). Discontinuance: of separation suit (Rogers 4 Paige 516). ORAX AGREEMENTS BETWEEN AT- TORNEYS OUT OP COURT ARE VOID — Adjournment: motion in Court of Errors ('Chamberlain 2 Cow 243); of trial (Gris- wold 1 Johns 507). Calendar: to try case improperly on (Ken- nedy 126 AD 551, 110 NYS 894). Commission to take testimony: consent to (Mason & Hamlin Organ Co 19 Hun 282). Compromise: of claim (Schlesinger 88 NYS 1042). IT. 4-6 GLEVENGER'S RULES OF CIVIL PRACTICE 12 Execution: not to Issue until certain time had elapsed (Jewett Clark's Ch 247). Issues: of cause except damages to abide result of another case pending (Slaven 64 Hun 606, 19 NYS 492). Befexee: extending indefinitely time to re- port (Ballou 55 NY 673; Livingston 25 How 1); waiving objection master's report not timely (Corning 7 Paige 587). ■WHO COTSCItVlfED BV STIFUZiATIOn — Both parties: evidence at prior trial avail- able at second trial under general stipu- lation although situation changed since first trial (Clason 152 NY 204); evidence in case on appeal to be used as sole evidence on second trial (Ryan 154 NY 328); from ap- peal to court of appeals, after stipulating to abide by decision of general term (Townsend 15 NY 587). Befeudaut: agreeing it never acquired cer- tain easements, as alleged in complaint can- not thereafter claim the contrary (Driscoll 95 AD 146, 88 NYS 745); concession by attorney for at prior trial available at sec- ond trial although claimed concession made for special reasons at first trial (Converse 16 AD 49, 44 NYS 1080). AG'BIiliMENS'S BEEiATIirCi' TO MATTBB IN ACTIOIT OB FBOCBEBINO — A^lde decision: of appellate division, both parties to (Townsend 16 NY 587), defend- ant city, without prejudice to plaintiff's right to appeal to Court of Appeals (Px Burby 85 Hun 601, 33 NYS 165); two causes to abide event of two others, after latter had been tried (Malin 1 Cai 117). Referee; extending indefinitely time to re- port (Ballou 55 NY 673; Sproull 45 AD 575, 61 NYS 404); parties agreeing orally on trial before referee to allow him to fix his own compensation (*Pirst Nat Bk 77 NY 476). Eiile 5. County judge; when time begins to run if disaualified. If a eotmty judge be disqualified from acting in any case pending in the fcourt of which he is the judge, the time within which any proceeding may be tahen, as fixed by statute, or by rule, shall not begin to run until the certificate of his disqualification shall be given by him. 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 dale of the certificate of the county judge, and not after that time." Oivil Practice Act references: Incapacity of county judge or special county judge, CPA § 73; removal of action to supreme court from county court, OPA § 190. Star (*) means read Not into HBASILIITE in capitals. For illustration see Rule 1. Settlement; of controversy (Smith 82 AD 608, 81 NYS 1057). Sureties: withdrawal of exception to (Zwee- ker 135 AD 432, 120 NYS 425). STIPUIiATIONS AVOIBBD — Abandonuieut : agreement for speedy trial (Crowell 91 Hun 638, 36 NYS 1124). Compromise: agreement between attorneys tantamount to, though entered into under mistake of law, no fraud being shown (•Montgomery 6 How 32'6). Discretionary: with trial court, whenever parties can be restored to same condition they would have been if no agreement made (Barry 53 NY 536). Praud; by plaintiff's attorney against his clients in agreeing with defendant's attor- ney to vacate arrest order (Seaver 1 Hun 305). Judgment: reduction of, as condition of affirmance by General "Term, subsequently reversed by Court of Appeals (Crim 32 Hun 350). Xaistake of law and fact: by defendant's attorney (Becker 13 How 23). BeverSal on appeal: of judgment for injunc- tion granted on condition that stipulation be signed CHine 149 NY 154). Unadvisedly or inadvertently: signed by counsel representing municipality (Mayor of NY 9 WkD 558). WHAT COtTBT ISAV ENFOBCE STXPITIiA- TION — Court of Appeals: has power to enforce stipulations n^ade by parties in the sub- ordinate courts (Townsend 15 NY 587). STIPUIiATIONS 'WITHIN BU£E — Written stipulations; between parties or attorneys (Schweinburg 131 AD 795. 116 NYS 318). EDITOBIAI. NOTES — Source: General Rule of Practice 46 and CPA § 73, both rewritten. General Rule 46 was formerly Rule 87 of 1852; Rule 53 of 1858; Rule 57 of 1871; Rule 57 of 1874; Rule 48 of 1877; Rule 45 of 1880; Rule 45 of 1884; Rule 45 of 1888; Rule 46 of 1896; Rule 46 of 1900; Rule 46 of 1910; Rule 46 of 1913. General Rule 46 read: "On appeal from a justice's judgment, where a County Court has not jurisdiction, by reason of Rule 6. Compelling officer to return, deliver or file paper. If any public officer faU to file any process or other paper which he is required by any provision of law or by any rule of court to file, any party in interest may serve on him a notice requiring him to file the sam,e within three days, or to show cause at a special term of the supreme court at a time designated why an attachment should not issue against him. ESITOBIAI^ NOTES — Source: General Rule of Practice 6, time of notice shortened to three days; other ver- bal changes but without intended change of substance. Formerly Law Rule 13; Rule 6 of 18i49; Rule 6 of 1852; Rule 8 of 1858; Rule 10 of 1871; Rule 10 of 1874; Rule 6 of 1877; Rule 6 of 1880; Rule 6 of 1884; Rule 6 of 1888; Rule 6 of 1896; Rule 6 of 1900; Rule 6 of 1910; Rule 6 of 1913. Text in italics is new matter, inserted June 17, 1921. Editor's note: General Rule 6 read: "At any ' time after the day when it is the duty of the sheriff, or other officer, to return, de- liver, or file any process, or other paper, by the provisions of the Code of Civil Proce- dure, or by these rules of the courts, any party entitled to have such act done, ex- cept where otherwise provided by law, may serve on the officer a notice to return, de- liver, or file such process, or other paper, as the case may be, within ten days, or show cause at a Special Term to be desig- nated in said notice, why an attachment should not issue against him." The words "At any time after the day when it is the duty of the sheriff " are omitted as un- necessary. The words " by the provisions of the Code of Civil Procedure, or by these rules" are changed to "by any provision of law or by any rule," thereby broaden- ing RCP 6. Time of notice is shortened fi-om " ten " to " three " days. The words "return, deliver" are omitted from the body of RCP 6 and placed in its heading and seemingly an officer may still be com- pelled to " return, deliver or file papers " although the word_ " file " alone appears i'n the body of the new Rule, 13 COURTS; MISCELLANEOUS PROVISIONS rr. 6,7 Star (*) means read Not into KEADI^INE in capitals. For illustration see Rule 1. FTIBKIC OFPICER, WEO IS— Marslial: of N'Y city (MdGuire 52 AD 276, 65 NYS 382). Sheriff: (Buckley 114 Mis 206, 186 NTS 327; Corning 3 Hill 552; Anon 10 Wen 572). PROCESS OR PAPER REQUIRED TO BE PIIiED — Execution: (See Hinman 13 Johns 529); voidable by subsequent acts of parties (Grosvenor 11 How 355). Stunmons and. complaint: (Wait 15 Hew 460). PUBI^IC OFPICER: ATTACHMEITT ISSUES AGAINST — Sheriff: allowed ten days to make return of summons and complaint received from serv- ice, on motion for attachment, where plain- tiff's attorney did not prepay sheriff's fees (•Wait 15 How 460); under Indemnity hav- ing proceeds of sale in his possession being sued by prior judgment creditor claiming portion ot fund (*Wilson 9 How 469). Rule 7. Books to be kept by clerks of courts. The clerks of the courts shall keep the following books: A. 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 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 court from day to day. 3. A book, properly indexed, in which shall be recorded at large all bonds or under- takings filed in his office, with a statement of the action or proceeding in which it is given, and a statement of any disposition or order made of or concerning it. 4. A book, properly indexed, which shall contain the names 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, disciplined or censured by the court. The clerk of each department shall trans- mit 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 aU applicants who have been refused admission, and the names of all attorneys who have been dis- barred, 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 prac- tice, with date of his admission, and the name of each person who has been disbarred, refused admission, or has been disciplined or censured, with the date of such disbarment, refusal of admission, or discipline or censure, received from the other departments of the state, together with the date when and departments wherein the order was made. B. The clerks of the other courts shall keep in their respective offices, in addition to the " judgment book " required to be kept by law : 5. A book, properly indexed, in which shall be entered the title of all civU actions and proceedings, with proper entries under each denoting the papers filed and the orders made and the steps taken therein, with the dates of the filing of the several papers in the action or proceeding. 6. A book in which shall be recorded at length each bond, or undertaking, of public officers, and of any officer appointed by the court, or by a judge, filed in his office, except bonds of receivers appointed in proceedings supplementary to execution, with a statement showing when such bond or undertaking was filed and a notation on the margin of the record showing any disposition, or order, made of or concerning it. 7. Such other books, properly indexed, as may be necessary, or convenient, to contain the minutes of the court, the docket of judgments, the entry of orders, and all other necessary matters and proceedings. 8. Such other books as the appellate division in each department may direct to be kept. ESITORIAI^ NOTES— Source: General Rule of Practice 7, except subdivision 3, fourth paragraph, omitted. Formerly Equity Rule 1 and Law Rule 6; Rule 4 of 1849; Rule 4 of 1852; Rule 9 of 1858; Rule 11 of 1871; Rule 11 of 1874; Rule 7 of 1877; Rule 7 of 1880; Rule 7 of 1884; Rule 7 of 1888; Rule 7 of 1896; Rule 7 of 1900; Rule 7 of 1910; Rule 7 of 1913. Text In italics Is new matter, inserted June 17, 1921. Editor's note: Subdivision 3 of the first part of General Rule 7, now omitted from new Rule 7, read: "A remittitur book, contain- ing the final order made upon the decision of each case, a certified copy of which shall be transmitted to the proper clerk as re- quired by the Code of Civil Procedure." The word " special " Is omitted before " pro- ceeding " in subdivision 3 and in subdivi- sion 5, and the words " or otherwise " are omitted before " disciplined " in subdivision 4. The two parts of Old General Rule 7 are now indicated in new Rule 7 by the letters "A" and " B," and the paragraphs ■of both together are now numbered con- secutively. Star (*) means read Not into HEABIiINE in capitals. For illustration see Rule 1. BOOKS TO BE KEPT — Temporary index: under a method of index- ing formerly in use (*PxHawleyvHoward 152 AD 621, 137 NYS 496). JUDGMENT BOOK DISTINGUISHED PROM— Docket-hook: in whicJi judgments are to be docketed (Sheridan 81 NY 182). rr. 8,9 GLEVENOER'S RULES OF CIVIL PRACTICE 14 Rule 8. Notice to present claims. Where an action is brought for the collective benefit of creditors or for the benefit of a person other than the plaintiff who wUl come in and contribute to the expense of the action, notice requiring the creditors or others interested to exhibit their demands or become parties shall be given or published as the court may order. ESITOBIAK irOTES — Source: OCP § 786, modifled, as revised from 2 RS 183, pt 3, c 1, tit 2, § 106. Text in italics is new matter, inserted June 17, 1921. Editor's note; The modification of CCP § 786 may be shown by quoting It, thus : " Where an action is brought for the collective bene- fit of the creditors of a person, of an estate, or for the benefit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the action, notice of a direction of the court, contained In a judgment or order, requiring the cred- itors, or other person or persons to exhibit their demands, or otherwise to come in, must be published, once in each week, for at least three successive weeks, and as much longer as the court directs, in the newspaper published at Albany, in which legal notices are required to be published, and in a newspaper, published in the county where the act is required to be done." Stax (*) means read JSfot into HEADUNi: in capitals. For illustration see Rule 1. ACTION'S roB coi^i^iiCTin: beh-efit of CBEDITOBS — Creditor in dnal capacity: suing individually and on behalf of others similarly situated, assignee for benefit of creditors for account- ing (Kerr 48 NT 62: Downey 8 StR 481). Surety of assignee for benefit of creditors; suing in own name against assignee alone for accounting ('Schuehle 86 NY 270). irOTICE TO EXHIBIT SEHANDS ITECES- SABY — Unnotiflea creditors: not bound by judgment setting aside assignment for benefit of cred- itors in favor of one creditor, and they may compel assignee to account (Thoesen 62 AD 87, 70 NT'S 924, distinguishing Kerr 48 NT 62; Dare 13 Daly 220; Diebermann 44 AD 148, 60 NTS 731; Mills « Paige 577). NOTICE TO EXHXBIT BEICANSS SUFFI- CXEirT — Foreign lanifiiag'e; three-cent newspaper, published in English, which claimants, poor and of Italian birth, could not read ('Men- dola 141 NTS 114). Rule 9. Term "proceeding " refers to special proceedings. When the word "pro- ceeding " is used in these rules it will be taken to refer to all matters which are defined as " special proceedings " in section five of the civil practice act. Costs: force assignee of cause of action to pay (Marvin 78 NT 541). Decedent's realty: sale to pay debts (Church 49 Hun 439, 3 NTS 557). Deposition: of ill witness by referee in per- sonal injury action (*Relchel 9 NTS 415). Estimate: by board of assessors of bridge construction damage ('rxWatt 160 AD 578, 145 NTS 754). Executor; compel payment of undisputed claim (Tilden 37 AD 28, 65 NTS 735); final accounting (Small 158 NT 129); rejection of claim, reference (Hallock 64 Hun 90, 19 NTS 91; 'Toung 23 Hun 249; Somerville 9 Hun 664). Foreclosure: deciding claim against receiver (Guarantee 160 NT 1); resale, compel de- faulting purchaser to execute deed (♦Knick- erbocker 197 NT 391). Habeas corpus: release inmate state prison (PxCurtis 2i25 NT 299). Higliway; compel commissioners to rebuild bridge (Irondequoit 68 NT 376); opening (Peterson 94 AD 143, 87 NTS 1014; Terry 67 Mis 514. 123 NTS 258). Implies: legal controversy (Queens 131 AD 91, 115 NTS 495). Imprisoned debtor: to discharge (Brady 69 NT 215, afg 8 Hun 437). Insane asylum: to commit to ('Murtaugh 117 AD 302, 102 NTS 176). Judgment; by confession, vacation by third party (Belknap 11 NT 477); rights, to en- force ('Rudiger 206 NT 412). Iionacy conunission order: vacate approval (•Board 76 Hun 74, 27 NTS 856). mandamus to inspect Indictment (Haydorn 184 AD 151, 171 NTS 601). Means; "matter" of (KeefEe 177 NT 305). Slortg'age foreclosure: distribute surplus moneys (Velleman 193 NT 4'89). Mortgagre lien: in partition, to establish (Byrnes 12 CivP 419). Order: in corporation dissolution action to pay creditor's claim (•PvAmCLoan 150 NT 117). Park opening; (Commissioners 50 NT 493). Partition: force purchaser at sale to take title (Parish 175 NT 181); relief from bid (Parish 175 NT 181). EDITOBIAK BTOTES — Source: CPA § 5, as revised from CCP § 3334 unchanged, as originally revised from Code of Procedure § 3, remodeled, by substitut- ing " prosecution," etc., for " remedy." Text in italics is new matter, inserted June! 17, 1921. Star (*)' means read TStot into HEADKIITE in capitals. For illustration see Rule 1. SPECIAi; FBOCBEDINGS: WHAT ABE — Accounting: compel guardian of infant to give (Spelman 74 NY 448, afg 8 Hun 205); vacate satisfaction of decree (Regan 167 NT 338). Accounts: of drainage commissioners, to compel audit (Ryers 7'2 *rT 1, afg 10 Hun 93). Administrator: compulsory intermediate ac- counting (Tilden 37 AD 28, 65 NTS 735). Apprentice: complaint against master (Kil- loran 26 Hun 648). Assignee: intermediate accounting (Tal- madge 160 NT 512). Attorney; admission to practice (Cooper 22 NT 67); disbarment (Mathot 222 NY 9; Attorney 83 NY 164; Spencer 137 AD 330, 122 NTS 190); to enforce lien (Flower 167 NYS 778). Banic receiver; to repay misappropriated funds (PvCity Bank 96 NY 32). Censure of county supervisors: vacate pre- sentment (Jones 181 NY 389). City magistrate: removal (Droege 197 NT 44). Condemnation: by railroad (Rensselaer 55 NY 145). Constable's services: enforce claim for (Perry 89 NTS 347). Contempt: disobeying injunction (PxNegus SO NY 402); disobeying judgment of fore- closure ('PxDay 9 Hun 202); disobeying order to give testimony for use in another state (Strong 177 NY 400); disobeying order to pay alimony (Brinkley 47. NY 40); dis- obeying supplementary proceedmg order (PxWoolf 5 Hun 428); disobeying surrogate decree to pay costs (Dissoway 91 NY 235). Corooratlon; voluntary dissolution of (Hul- be?t 160 NY 9: Tarrytown 133 AD 297, 117 NTS 695). 15 COURTS; MISCELLANEOUS PROVISIONS r. 9 Personalty tax: enforce payment (McLean 13 NY'S 834). Probate aenlal: appeal from (Gates 26 Hun 179). Pn'blic school: acquire land for (Board 11 NTS 780). Bailroad: application to construct and oper- ate along village street (Lima 68 Hun 252, 22 NY9 967); crossing over another track, to secure (Cortland 9f8 NY 33'6). Search warrant: for liquors illegally kept (Hugg 136 AD 297, 120 NYS 1070). Sewer: vacate assessment (Manhattan 82 NY 142). Stock appraisal: of objecting stockholder (Bnnis 123 AD 691, 108 NYS 230, afd 192 NY 570). Street: grade change, ascertain property damage (Grab 157 NY 69); opening (Johns- town 157 NY 50; Buffalo 78 NY 362; Kins' 36 NY 182; Mayor 22 AD 124, 47 NYS 965; leSrd St 61 Hun 365, 16 NYS 120); paving assessment, vacate (Jetter 78 NT 601 rvg 14 Hun 93); widening (Grade 20 AD 271, 46 NYS 1070). Snnunons: vacate service (Tarpey 98 Mis 302, 163 NYS 267). Supplementary proceeding's: (Ward 70 Mis 506, 127 NYS 713; Owens 68 Mis 522, 124 NYS 839; McAlpin 54 Mis .647. 105 NYS 9; Bolt 10 NYS 397; Green 9 NYS 660; La- master 20 AbNC 152; Smith 11 CivP 351). Taxation: of real estate expert's fees under special statute ('Mayor 69 NYS 178). Testamentary trustee: remove (Dietz 138 AD 283, 122 NTS 1063). Town finances: judicial investigation of (Plattsburgh 157 NT 78; Hempstead 32 AD 6, 52 NTS 618; PxGulbord 22 AD 176, 47 NYS 1023). Venue: change of (PvMcLaughlin 2 AD 408, 37 NYS 998, mod 150 NY 365). Voting lists: strike names from (Ward 20 NYS 606). Water supply company; acquire property of (Brooklyn 148 NY 107). vnU: probate (Smith 95 NY 516). Witnesses: examination by attorney-general. (Atty Gen 22 AD 285, 47 NYS 883). rr. 10,11 OLEVENGER'8 RULES OF CIVIL PRACTICE 16 TITLE 2 PAPERS AND THE PILING THEREOF Rule 10. Legibility and size of papers. 11. Subscription land indorsement by attorney. 12.. Waiver of objection to requirements. 13. Subscription and indorsement of writs and other process. 14. Lost or withheld papers. 15. Filing papers generally. 16. Special rules for indorsing and filing papers. EDITOBIAI^ NOTES— I ClvU Practice Act references: Filing papers' { in an action, CPA § 100;- Filing papers in a special proceeding, CPA § 101. Rule 10. Legibility and size of papers. All papers served or required to be filed shall be -written, typevn-itten or printed plainly and legibly, in black ink, in the English language, on durable whUe paper of good quality and, except exhibits, of the usual legal cap size; but legible, reproduced copies may be served. The proper and knovrai names of process and technical words may be used. Such abbreviations as are in common use in the English language may be used. Numbers may be expressed in arable figures or roman numerals in the customary manner. If papers be not so written or printed, the clerk shall not file the same, nor will the court or a judge hear any application thereon. EDITOIIIAI^ ITOTES — Source: first sentence is OCP § 796, except first sentence; second and third sentences are CCP § 22; last sentence covers General Rule of Practice 19, first paragraph, last part, and second paragraph, first part; folioing not required. CCP § 796 revised from OP § 408, amended by omitting the words '* notices shall be in writing, and," at the commencenaent, and *' where not otherwise provided by this act," at the end of the section. General Rule of Prac- tice 19 was formerly Rule 44 of 1849; Rule 41 of 1852; Rule ,20 of 1858; Rule 26 of 1871; Rule 26 of 1S'?4; Rule 19 of 1877; Rule 19 of 1880; Rules 19 and 20 of 1884; Rules 19 and 20 of 1888; Rules 19 and 20 of 1896; Rule 19 of 1900; Rule 19 of 1910; Rule 19 of 1913. CCP § 22 revised from 2 RS 275, pt 3, c 3, tit 1, §§ 8 and 9, consolidated. Text In Italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEASXiINi: in capitals. For illustration see Rule 1. WRITING.: REQUIRED — Notice: to produce papers given in presence and hearing of court (*Kerr 28 NTT 446). PAPERS -WRITTEN OR FRINTES PIVAINI^'S' AND JmEGIBITX — Concealed cooitents: folded cover showing contents to be copy of order granting new trial and concealing notice of entry of order (•Weeks 36 AD 339, 55 NYS 263). Injunction: affidavit and papers so illegible as to be incapable of being read (* Johnson 3 Rob 710, 28 How 492). IVEotion papers: defaced with interlineations and erasures (*Henry 20 How 215). Proposed case and exceptions: question not decided (•Williams 6 Mis 512, 27 NTS 433). ENCi'I^ISH I^ANGUAGE: REQUIRES — Answers to letters rogatory: doubt ex- pressed as to application of rule ('See Union Square Bk 9_AD 596, 41 NTS 602). Divorce : publication of sumnnons in Italian newspaper in Italian (Alfonso 99 Mis 550, 165 NTS 1037). Slander: complaint (Cherwat 19 Mis 500, 44 NTS 26). DUBABZiE WHITE PAPER OF GOOD QUAI^ITT: SUPPICIENT — Notice of appeal: objection extremely tech- nical (*PxCollins V Ahearn 136 AD 432. 120 NTS 980). FOI^IOING REQUIRED — Pormerly; under General Rule 19 (Sawyer 8 How 198; NTC Baptist Society 9 AD 527, 41 NTS 720; NTC Baptist Society 10 AD 288, 41 NTS 976). RUI.E CITED — To part: of CCP § 796 omitted from RCP 10 (Boland 56 Mis 333, 106 NTS 766; White E2 AD 225, 65 NTS 168); of .CCP § 22 omitted from RCP 10 (Caulkins 98 NT 511; Varnum 47 Hun 18; Crosley 3 HowNS -37). Rule 11. Subscription and indorsement by attorney. All papers issued by an attorney shall be subscribed with his name. All papers served or filed in any action or proceeding shall have the name of the attorney indorsed thereon if the party appears by attorney, and if he does not' appear by attorney, then the name of the party serving or filing the paper together with the address of the attorney or party as the case requires with sufficient detail for counter-service. EDITORIAI^ NOTES — Source: General Rule of Practice 2, last sentence. See CPA § 218. General Rule of Practice 2 was formerly Law Rule 5 and Equity Rule 41; Rule 3 of 1849; Rule 3 of 1852; Rule 3 of 1858; Rule 3 of 1871; Rule 3 of 1874; Rule 2 of 1877; Rule 2 of 1880; Rule 2 of 1884; Rule 2 of 1888; Rule 2 of 1896; Rule 2 of 1900; Rule 2 of 1910; Rule 2 of 1913. Text in italics is new matter, inserted June 17, 1921. Star (*). Means read Not into KEADI.INE in capitals. For illustration see Rule 1. ATTORNEY'S ADDRESS NECESSARY — Notice of entry of judgment: (Kilmer 78 NT 228); if copy annexed and whole paper is indorsed with names of attorneys and their office address- (Falker 100 NY 86, 2 NB 628), served with it contains address (•PvKeator 101 NY 610, 3 NB 903; •Har- nett 2 NYS 10, 56 Supr 129, afd 121 NT 668). 17 PAP'ERS AND THE FILING THEREOF rr. 11-15 ATTOKITEVS Ht&JOE AND ADDRESS NEC- ESSAR.Y — Notice of entry of jnagment: (Kelly 76 NT 325; Yorks 17 How 192). INDOKSEMENT OF ATTORNEVS NAME AND ADDKESS SXTPTICIENT — Copy of judgment: on sheet of white paper and another sheet of colored paper of same size attached, with indorsement on one sheet (Harnett 2 NYS 10, afd 121 NY 6'68). IRBEG-TTI^ABITIES VITIATINa PAPERS — Omission: address from answer by defend- ant in person (*Heidenheimer 45 Mis 385, 90 NYS 387); attorney's address from no- tice of entry of judgment ('Evans 101 NT 289, 4 NE 5,16); attorney's name from copy summons, name appearing upon copy of complaint attached (•Hull 55 AD 419, 66 NYS 865). IBREGUI^ARTTISS 'WAITED^ Aliseuce of a>ttorney's address from, notice of entry: of interlocutory judgment by admission of service of copy of judgment and summons to attend before referee ap- pointed pursuant to judgment (Patterson 38 Hun 5'3il); of judgment of affirmance by retention of notice by attorney upon whom served (Evans 101 NY 289, 4 NE 516). Rule 12. Waiver of objection to requirements. The party on whom a paper is served shall be deemed to have waived non-compliance with rules ten and eleven, unless within twenty-four hours after the receipt thereof he returns the paper with a statement of the particular objection to its receipt. Such waiver shall not apply to papers required to be filed or delivered to the court. EDITORIAl. NOTES— Source: General Rule of Practice 19, fourth sentence. Formerly Rule 44 of 1849; Rule 41 of 1852; Rule 20 of 18'58: Rule 26 of 1871; Rule 26 of 1874; Rule 19 of 1877; Rule 19 of 1880; Rules 19 and 20 of 1884; Rules 19 and 20 of 1888; Rules 19 and 20 of 1896; Rule 19 of 1900; Rule 19 of 1910; Rule 19 of 1913. General Rule 19, fourth sentence, read: " The party upon whom the paper is served shall be deemed to have waived the objection for non-compliance with this rule unless within twenty-four hours after the receipt thereof he returns such papers to the party serving the same with a state- ment of the particular objection to its re- ceipt; but this waiver shall not apply to papers required to be filed or delivered to the court." Text In itaUes is new matter, inserted June 17, 1921. Star (•) means read Not into EEADliINE in capitals. For illustration see Rule 1. OBJECTIONS WAFTED B7 RETAINING 24 HOURS — Affidavit absent: from amended pleas served by attorney retained (Buffalo 20 Vv^end 676). Foreign language: answers in German to in- terrogatories annexed to letters rogatory settled in English, objected to at trial ("Union Square Bk 9 AD 596, 41 NYS 602). IRREGUXiARITIES WAIVED — FoUoing: affidavit and order extending time to plead ( ♦Goldstein 73 AD 545, 77 NTS 956; Silleck 35 Mis 134, 71 NTS 316); copy of complaint (Chatham Bank 5 Duer 628); copy of judgment (NYC Baptist So- ciety 9 AD 527, 41 NYS 720). Rule 13. Subscription and indorsement of writs and other process. A writ or other process issued out of a court of record must be subscribed or indorsed with the name of the officer by whom, or by whose direction, it was granted, or the attorney for the party, or the person at whose instance it was issued, before the delivery thereof to an officer of the court to be executed. EDITORIAXi NOTES — Source: OOP §■ 24, first sentence, partly transposed, as revised from 2 RS 778, pt 3, c 3, tit 2, § 9, D 1842. c 280. § 57 and c 470, § 43. See CPA § 218. Test in italics is new matter, inserted June 17, 1921. Star (*) means read Not into KEADXiINE in capitals. For illustration see Rule 1. WRIT OR OTHER PROCESS: WHAT IS— Comjuisslon: to take testimony (Tracy 30 Barb 110; Whitney 4 AbP 370). Execution: (PxBrown 62 Hotv '76; Ovoronhe 17 WkD 503). PAPERS PR0PER:I^7 SUBSCRIBED OR IN- DORSED — Attorney: not of record (•Ovoronhe 17 WkD 503). law clerk: sign'ing writ, process and plead- ings in name of law firm, one of whose members was dead and the sole surviving member disbarred (*Kaffenburg 188 NY 49). PAPERS WHICH ATTORNEV MAV ISSUE — Subpoena: in supplementary proceedings (•Lowther 115 AD 307, 100 NYS 965). EFFECT OF NONCOMPLIANCE WITH RULE — Execution: not absolutely void, but may be amended (Ovoronhe 17 WkD 503). RUI.E CITED — To part: of COP § 24 omitted from RCP 13 (Ford 24 NY 359; Myers Co 166 NYS 654; Richmond Sales Co 157 AD 374, 142 NYS 244; Bareither 13 NTS 561, 19 CivP 446; Bingham 33 Hun 211; Douglas 25 Hun 262, rvd 88 NT 611; Mason Organ Co 19 Hun 282; Churchill 15 Hun 385). Rule 14. Lost or withheld papers. If an original pleading or paper be lost, or with- held by any person, the court may authorize a copy to be filed and used instead of the original. EDITORIAl^ NOTES — Source: CCP § 726, as reTrised from Code of Procedure § 422. Text In italics is new matter, inserted June 17. 192il. Star (•) means read Not into EEADIiINE in capitals. For illustration see Rule 1. COP'S' PROPERIiV FII^ED — Original answer: omitted from judgment roll (Renouil 1 CodeR 125). RUI^E CITED — But not applied: (Soule 6 Dem 140; Gold- man 21 AbNC 367n). Rule 15. Filing papers generally. In causes pending in the appellate division, all papers required to be filed in that court shall be filed with the clerk thereof in the department in which the appeal is pending. In all other cases, where no provision is rr. 15, 16 OLEVENGER'S RULEB OF CIVIL PRACTICE 18 made by the civil practice act or by these rules, papers in the supreme court shall be filed in the office of the clerk of the county specified in the summons as the place of trial. ^ Except as otherwise provided by law, in other courts of record, papers shall be filed in the ofi&ce of the respective clerks thereof. In case the place of trial be changed to another county from that where the venue is originally laid, all papers shall be filed in the county to which such change is made. EDITORIAI^ ITOTES — Sonrce: General Rule of Practice 2, except last sentence. Formerly Law Rule 5 and Equity Rule 4.1; Rule 3 of 1849; Rule 3 of 1852; Rule 3 of 1858; Rule 3 of 1871; Rule 3 of 1874; Rule 2 of 1877; Rule 2 of 1880; Rule 2 of .1884; Rule- 2 of 1888; Rule 2 of 1896; Rule 2 of 1900; Rule 2 of 1910; Rule 2 of 1913. General Rule 2, except last sentence, read: "The papers. In cases pend- ing in the Appellate Division, shall be filed' with the clerk of such division of the de- partment in wihtch 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 ofllce of the clerk of the county specified in the complaint a's the place of trial. In Surrogates' Courts, in the office of the surrogate; in other courts of record, in the office of the re- spective clerks thereof. In case the place of trial be changed to another county, all subsequent papers shall be filed in the county to which such change is made." Text in italics is new matter, inserted June 17, 192.1. Civil Practice Act references: Filing papers in an action, CPA § 100; Filing papers in a special proceeding, CPA § 101. Star (*) means read Vet into HEADI^INE in capitals. For illustration see Rule 1. fh^inq fapebs necessaby— Affidavit: for attachment, nonfiling does not affect validity of warrant or of proceedings thereunder ('Brash 36 How 253); read on motion and orders (Savage 3 How 276); upon which order for publication made, practice to leave with judge or file (Vernum 5 How 3). Injunction: papers In suit for (Johnson 28 How 492). Motion papers: (Albrecht 92 Hun 240, 36 NYS 940; Curtis 2S Hun 294). Order: of confirmation of report of commis- sioners of appraisment (Rhinebeck & Conn R Co 8 Hun 34). FU^IITG: WHAT CONSTITUTES — Bemittdtnr handed liack to attorney; without being marked filed and with refusal to file (•Cushman 15 AbNS 109). FAH^VBE TO FII^i: FAFEBS EXCUSES — Inadvertence: injunction papers not filed in time (Lefflngwell 19 How 54, 5 Bosw 703). FAFEBS FBOFEBI.Y FU^ED — Be facto officer: chattel mortgage with de facto town clerk (Bishop 13 Barb 326). Judgment roll: with clerk of county where judgment affirmed ('Andrew 6 How 191). Bule 16. Special rules for indorsing and filing papers. The appellate division in each department may make special rules for the indorsement to be placed on papers served or filed in an action or proceeding in the supreme court within the department of such appellate division or in any county therein, and for the filing thereof, and may require the use of flat files. ESITOBIAI. NOTES — Source: covers General Rule of Practice 19, as to indorsement of papers. See Greneral Rules of Practice 47, last paragraph, and 83. General Rule 19 was formerly Rule 44 of 1849; Rule 41 of 1852; Rule 20 of 1858; Rule 26 of 1S71; Rule 26 of 1874; Rule 19 of 1877; Rule 19 of 1880; Rules 19 and 20 of 1884; Rules 19 and 20 of 1888; Rules 19 and 20 of 1896; Rule 19 of 1900; Rule 19 of 1910; Rule 19 of 1913. Text in Italics is new matter, inserted June 17, 1921. Star (') means read Not into HEADLINE in capitals. For illustration see Rule 1. 19 SERVICE OF PAPERS I. 20 TITLE 3 SERVICE OF PAPERS Rule 20. Mode of service of papers generally. 21. Maimer of service of papers to begin a proceeding. purpose of serving personally, CPA § 165; Delivery to prisoner of papers served on officer, CPA. § 166. EDITORIAIi KOTES — Civil Practice Act references: Service uporH attorney, CPA § 163; Service through post- office, CPA § 164; Access to prisoner for Rule 20. Mode of service of papers generally. A notice or other paper in an action (other than a summons or other process, a paper to bring a party into contempt, or where the mode of service is specially prescribed by law) may be served on a party or an attorney either by delivering it to him personally or in the manner following: 1. On a party or an attorney, through the post-office, by depositing the paper properly inclosed in a postpaid Avrapper in a post-office or in any post-office box regu- larly maintained by the government of the United States in the city, village or town of the party or the attorney serving it, directed to the person to be served at the address within the state theretofore designated by him for that purpose; or, if such a designa- tion has not been made, at his place of residence or the place where he keeps an office, according to the best information which can be conveniently obtained. 2. On an attorney at his office, by leaving the paper with his partner or clerk therein or with a person having charge thereof; if there be no person in charge of his office and the service be made between six o'clock in the morning and nine o'clock in the evening, by leaving it in a conspicuous place in his office. 3. On an attorney, if his office be not open, by depositing it, inclosed in a sealed wrapper directed to him, in his office letter-drop or -box, accessible from without his office, or by leaving the paper at his residence within the state with a person of suitable age and discretion. 4. On an attorney, if his office be not open and there be no office letter-drop or -box and no person of suitable age and discretion at his residence on whom service can be made, by leaving it with the clerk of the court in which the action or proceeding is pending. If, under the rules, a paper may be served at the residence of an attorney living in the state, service may be made on an attorney practicing in the state but residing outside thereof, by depositing the paper in a post-office or in any post-office box regularly maintained by the government of the United States in the city, village or town where his office is located properly inclosed in a postpaid wrapper directed to him at his office. A service made as provided in this subdivision is equivalent to personal service on him. 5. On a party by leaving the paper at his residence within the state, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion ; where a party who has appeared in person resides without the state or his residence cannot be ascertained with reasonable diligence, and he has not designated an address within the state on the preceding papers, service of a paper on him may be made by serving it on the clerk of the court. EDITOKIAXi VOTES — Sonrce: first paragraph Is CCP § 796, first sentence, except matter within parentheses, which is CCP § 802; subdivisions 1, 2, 3, 5, first part, are CCP § 797, subdivisions 1, 2, 3, 4; subdivision 4, first sentence, is new, but see CCP § 800; subdivision 4, last two sentences, is CCP § 60, rearranged and clari- fied and CCP § 797, part of subdivision 1; subdivision 5, last part, is CCP § 800. CCP § 60 revised from L, 1866. c 175, § 1. CCP § 796 revised from CP § 408, amended by omitting the words " notices shall be in writing, and " at the commencement, and " where not otherwise provided by this act" at the end of the section. CCP § 797 revised from CP §§ 409, 410, 411, as amended in 1897, by adding the words " within the State," in subdivision 4. CCP § 800 revised from CP § 415. Text in Italics is new matter. Inserted June 17, 1921. ClTll Practice Act reference: Service upon attorney, CPA § 163; Service through post- office, CPA § 164; Acccess to prisoner for purpose of serving personally, CPA § 165; Delivery to prisoner of papers served on officer, CPA § 166. Star (*) means read KTot into HEADIiDTE in capitals. For illustration see Rule 1 SEBVTCE BY MAH PEBMISSIBtE — Clerk of court: notice of appeal (*Morris 26 How 247). No regular commnnicatlon; by mail between place of mailing and place to which ad- dressed (*Schenck 4 How 246). Not received; by addressee (Miller 67 Barb 446; Schenck 4 How 246), until 8 days after mailing (Radcliff 3 How 67). Party nonresident: of state, mailing to place of residence (•Gottlieb 52 Mis 89, 101 NTS 751). 20 CLBVENGER'S RULES OF OIVIL PRACTICE 20 ^^^??/?L''*'^^^= ^y addressee (Schwartz 18 NTS 879; Annis 66 Barb 370; Jacobs 1 Barb Same city: or town, residence of both at- torneys (Seifert 63 Hun 604, 18 NYS 327; Whiting- 7 StR 766). FAFZiRS ■WHICH MAY BE SEKVSD BY MAI£. — Aaswer: (Gillespie 18 Mis 606, 42 NYS 463; Whitney 7 StR 766). Complaint: (Van Home 5 How 238; Peebles 5 How 208). Counterclaim: (Appeal Printing Co 99 AD 533, 91 NYS 178). Demnirer: (Green 14 Hun 434). Notice of: appeal (iVIorris 26 How 247; Crit- tenden 6 How 310), judgment, to limit time for appeal (Miller 67 Barb 446), rejection of claim against decedent's estate (Smith 58 Mis 493, 111 NYS 1085), trial (Schwartz 18 NYS 879; Elliot 26 How 422). Order to show cause: service by mail not specified (»Marcele 66 How 205). Flea: (Radcliff 3 How 67). Reply: (Annis 66 Barb 370). Stipulation: (Jacobs 1 Barb 71). ADOBBSS OT mAU, MATTSR FROFEB — More than on© post ofB.ce: in same town, must be addressed to post office given on papers as attorneys address (Rowell 5 How 337). ISust be to place designatecl : in papers by address as residence (Hurd 13 How 57). No such, post office: in county as that to which addressed ('Rowell 5 How 337). Omit: street and number, papers never re- ceived (Oothout 10 How 460 prior rule), street number of attorney's office though stated on summons, complaint etc ("Seifert 63 Hun 604, 18 NYS 327). Flace designated: by attorney on papers (Lord 15 How 363, 6 Duer 703). SENDER BO'UDS'I) TO PROVE CORRECT ADDRESSING Actual receipt: not shown (Seifert 63 Hun 604, 18 NYS 327). MAIMNG SUFFICIENT — Address: proper not shown ('*Parley 57 AD 218, 68 NYS 119). Branch post office: (Von DerHeyde 174 AD 390, 161 NYS 780). Office letter 'box: drop therein papers not enclosed in envelope, sealed, or addressed (•Fitzgerald 101 AD 261, 91 NYS 1003). Flace other than sender's residence: (*Hurd 13 How 57; *Peebles 5 How 208; "Schenck 4 How 246), irregularity cured if papers received in time (Peebles 5 How 208). Fostag'e: insufficient, addressee refuse to pay postage due, paper not delivered (*Kuh 119 AD 148, 104 NYS 255); deficiency paid without objection by attorney receiving paper who returned it after learning its nature (Appeal Printing Co 99 AD 533, 91 NYS 178); not prepaid, addressee refuse to pay, paper not delivered but returned to sender ('Byron 187 AD 836. 176 NYS 416) papers immediately returned by ad- dressee who paid ]50stage due C^Benthuy- sen 8 Plow 312) paper received and acted on, irregularity waived (Georgia Lumber Co 3 How 246); prepayment not shown (•Parley 57 AD 218, 68 NYS 119). Fost office, deposit in: enveloped and post- age paid (Radcliff 3 How 67), properly ad- dressed (Vassar 14 Barb 341, afd 11 NY 441). Beylstered mail: addressee refuse to receive (See *Abendroth & Root Mfg Co 140 AD 922, 125 NYS 283). Residence of attorneys whose office and resi- dence are at different places (Lord 15 How 363, 6 Duer 703). Return direction: on envelope (Gaffney 2 AbNC 311, rvg 48 How 475). MAII.ING' TIMEI.Y — Any time of day: (Elliott 26 How 422). Before expiration of time: for service (Crit- tenden 5 How 310; Gibson 1 CodeR 103; Van Home 5 How 238). last day for service: (Morris 26 Ho^v 247; Lawler 2 CodeR 114); after mail closed (Noble 4 How 322; 'Maher 1 How 871; at branch post office in New York City before 11:40 PM (Gillespie 18 Mis 606, 42 NYS 463); deposit in mail box in New York City at 7;30 PM (Vernon 16 Mis 507, 39 NYS 172); so late in night as to miss first out- going mail for destination on following day ('•Green 14 Hun 434). DEIVAV AWAITING SEKIVEB7 OP MAH^ StTFFICIENT — After 11 AM: of day following last day for answer (Gillespie 18 Mis 606, 42 NYS 463). Arrival of first mail: from point of origin on day following last day for service (Green 14 Hun 434). SENDER B0T7ND TO SHOW MAII.INQ TIMELY — Dilatory service; of frivolous demurrer with apparent intent to delay plaintiff until other judgments obtained preference (Green 14 Hun 434). No suspicious conduct; on part of attorney mailing papers (Green 14 Hun 434). FBOOF OF TIMEI^Y MAIXiING SUFFI. CIENT — Affidavits of attorney; and another adult per- son that answer mailed at branch post office before 11:40 PM of last day for service not overcome by affidavit of super- intendent of branch that he believes, be- cause of stamp placed on envelope, that it was mailed in letter box (Gillespie 18 Mis 606, 42 NYS 463). AFFIDAVIT OF SERVICE BY MAH^ SUF- FICIENT — Not stated: that papers inclosed in wrapper. (•Anon 25 Wend 677). OEI.rVERY OF SIAH. MATTER FBE- STJMED — No showing as to place of mailing: prepay- ment of postage, or address ('Mayor 58 Supr 360). Froof of enclosure : in post-paid envelope properly addressed and deposited in mail box (McCoy 46 Hun 268). FAFERS 'WKICB: MAY BE SERVED ON AT- TORNEY OTBXRWISE THAN FERSON- AZ,I^Y — Notice of motion: to set aside judgment (Tremper 2 Cai 101). Order: copy (Clross 1 CivP 17). Stay: of execution (Corn Exch Bk 9 StR 67). SERVICE AT OFFICE S'DFFICIENT — Delivery to: clerk (Tremper 2 Cai 101); partner (Rogers 13 NYS 939); person ap- parently in charge, attorney in adjacent room (Gross 1 (DivP 17); person occupying office having common entrance with at- torney's office, latter office open but attor- ney absent (Crook 12 StR 663, 14 Daly 298). Irregularity: cured when paper immediately reached hands of attorney (Gross 1 CivP 17); waived when complaint retained and answer served (Rogers 13 NYS 939). Office letter-ljox; drop in papers not enclosed in envelope, sealed, or addressed ('Fitz- gerald 101 AD 261, 91 NYS 1003). Office locked and no one therein; janitor un- lock door, paper left on table of managinir clerk between 5:30 and 6 PM ('Vail 4 Hun 653); push under door ('Rogers 13 NYS 939; 'Halght 36 Super 294); throw through fan-liglit above entrance ('Haight 36 Supr 294); unlock door and leave paper in office ('Haight, 36 Super 294; 'Campbell 1 How 199). Only if party has appeared: In person and is either non-resident or residence cannot be found (Grant 4 LawB 13). Flace in conspicuous place: in office during hours allowed for services, office open and no person therein to receive paper (Corn Exch Bk 9 StR 67). Slit in office door: deposit through, papers in envelope addressed to attorney ('Timo- lat 15 Mis 630, 37 NYS 221). 21 8EBYICM OF PAPERS rr. 20,21 Though attorney did not: find paper (Corn Bxch Bk 9 StR 67); receive paper until late following day (Troy Carriage Wks 16 Mis 561, 38 NYS 938). F&FER I^EFT IN CONSFICTTOUS FI^ACS — Iietter slot In door: drop through (Livings- ton 58 Hun 131, 11 NYS 359, afd 125 NY 695, rvg 13 NYS 706). Office letter 'bos: deposit in (*Fitzgerald 101 AD 261, Bl NYS 1003). SUt in office door; drop through (*Timolat 15 Mis 630, 37 NTS 221). Transom over door: throw through (•Claflin 1 NYS 150). SERVICE AT OFFICE THOEIiY — Day after ezx^^ration: of time with notice of attempt to serve at office and residence the day before, hoth being closed (Falconer 2 CodeR 71). Must be het-nreen 6 AJVI and 9 FM: (Elliott 26 How 422). 4 FM: about (Lord 15 How 363, 6 Duer 703); after (Troy Carriage Wks 16 Mis 561, 38 NYS 938). SERVICE ON CI^ERK SUFFICIESTT— Flace: affidavit not showing that clerk was in office when served (*Paadock 2 JohnsCas 117); attorney's office (Tremper 2 Cai 101); not shown ('Jackson 3 Cai 88). SERVICE ON ATTORNEY SUFFICIENT — Fartuer: deliver to away from office (Lan- sing 7 Cow 416). DEIiIVERY TO ATTORNEY SUFFICIENT — Offer of judipineut: copy (Smith 49 Hun 29, 1 NYS 454). SERVICE ON ATTORNEY EFFECTIVE AG-AINST FARTY — Motion to set aside: attachment and order for publication four years after judgment (Drury 27 How 130); judgment within two years (Miller 37 How 1). FAFERS WHICH MAY BE SERVED ON FARTY OTHERWISE THAN FEB,SON- AI^I^Y — Notice of rejection: of claim against de- cedent's estate (Peters 21 NYS 993, rvg 20 NYS 661). Order to show cause: why judgment debtor not to be punished for contempt for failure to appear for examination (Barrle 79 Mi^ 86, 139 NYS 337). SERVICE AT RESIDENCE SUFFICIENT — Copy left with person: of suitable age and discretion between 5 and 6 PM (Barrie 79 Mis 86, 139 NYS 337). Entry of house: wrongfully (*Mason 1 AbNC 354). Though paper not received: by party until two weeks later (Peters 21 NYS 993, rvg 20 NYS 661). SERVICE AT RESIDENCE TIMEIY — Must be Taetwoen 6 AM and 9 FM; (Elliott 26 Hun 422). Saturday: afternoon (See PxFulton 3 NYS 75:1); any part of day (See Nichols 20 AbNC 14, 13 CivP 154). FERSONAI. SSaVICB NECESSARY — Notice required: as condition precedent to doing of act, unless statute permits notice by publication or by leaving at place of business or residence (Boland 56 Mis 333, 106 NYS 766). Order: to charge with contempt by dis- obedience (Grant 121 AD 756, 106 NYS 532). Unless statute: provides- other mode (Morris 26 How 247). FORCIBLE ENTRY IMPItOFEE — Serve subpoena: (Hager 8 How 435). ADMISSION OF DUE SERVICE BINDING — Ainendod complaint: claim that admission was under belief that paper was leave to amend (Coby 25 NYS 998). KNOWEiEDG-E OF ORDER EQUIVALENT TO SERVICE — Mandamus: disobedience constitutes con- tempt (IJxPlatt 80 Hun 437. 30 NYS 457, afd 144 NY 249). IRREG-ULAR SERVICE WAIVED — Receive and- action: on order to file security for costs (Georgia Lumber Co 3 How 246). RULE INAFPLICAEIiE — Contempt: paper to bring party into (Korn 201 N'l' 404; Johnson 192 AD 890, 181 NYS 772; Curtis 146 AD 246, 130 NYS 914; Goldie 77 AD 12, 79 NYS 268; process (Korn 201 NY 404; VonderHeyde 174 AD 390, 161 NYS 781; Berman 114 Mis 345, 186 NYS 377). Special proceeding': sale of decedent's prop- erty (Smart 93 Mis 402, '157 NSS 143). Special provision: as to mode of service (Korn fOl NY 404). Summons: (Korn 201 NY 404; VonderHeyde 174 AD 390, 161 NYS 781; Berman 114 Mis 345, 186 NYS 377). SERVICE UPON ATTORNEY — See CPA: § 163. SERVICE THROUGH FOST OFFICE — See CPA: § 164. RULE CITED— But not applied: (Halsey 13 AbNS 3, 2 Dem 577). Eule 21. Manner of service of papers to begin a proceeding. The provisions of the statutes and rules relating to tlie mode of personal service of a summons shall apply to the service of any process or other paper whereby a proceeding is begun in a court, or before an officer, except a proceeding to punish for contempt, unless other special provision for the service thereof is made by law or rule. Other papers in a proceeding shall be served in like manner as in an action. EDITORIAL NOTES — Source: CCP § 433, except last sentence, as revised from L 1855, c 279, § 4. CCP § 433 read: "The provisions of this article, re- lating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceed- ing is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special pro- vision for the service thereof is other- wise made by law." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. PROCEEDING'S FROFERLY COM- MENCED— Supplementary proceedings: sign order (•Dorfman 100 Mis 592, 166 NYS 403). SERVICE FROFER — Supplementary proceedings: against foreign corporation, serve order for discovery on officer of corporation (Meyer 196 NY 471, 90 NE 54, afg 132 AD 265, 416 NYS 906); person designated for service of summons (•Meyer 106 NY 471, 90 NB 54, afg 132 AD 265, 116 NYS 906); judgment creditor serve order for examination of third per- son ('Dawes 108 AD 174, 96 NYS 52); origi- nal order must be exhibited (Ward 144 AD 143, 128 NYS 846). Trustee serve: notice of proceeding to mort- gage trust property on infants interested, irregularity not fatal (Losey 83 Hun 420, 31 NYS 950, rvd 147 NY 560). RULE CITED — But not applied; (Ackerly 14 NYS 467). GLEVENGER'S RULES OF CIVIL PRACTICE 22 TITLE i SECURITY Rule as. Form and requisites of bond or undertaking. 26. Failure to file required bond or undertaking. 27. Attorneys not to be sureties or bail. XSITORIAi; IfOTES — Civil Practice Act references: Condition, effect of change of parties, CPA § 148; Additional security, CPA § 149; Substan- tial compliance as to form, amendment, CPA § 150; Justification, CPA § 151; De- posit to protect surety, CPA § 153; Security for infant or incompetent, CPA § 154; Se- curity for the people, CPA § 155; Surety^ company bond or undertaking, CPA § 15'6; United States bonds in lieu of cash bail, CPA § 157; Discharge of surety, CPA § 158; Action on bond or undertaking to people or public officer, CPA § 159; Action upon a penal bond, CPA § 160; Limitation as to> action upon undertaking on appeal, CPA § 161; Security by people, municipal cor- poration or public officer, CPA § 162. Rule 25. rorm and requisites of bond or undertaking. The following provisions regulate the form and requisites of a bond or undertaking in an action or proceeding, unless otherwise provided by statute or rule: 1. The principal need not join -with the sureties in its execution; 2. The execution by one surety is sufficient, although the word "sureties" is used in the statute or rules; 3. It must be joint and several in form where two or more persons execute it; 4. Except when executed by a fidelity or surety company, it must be accompanied with the affidavit of each surety, subjoined thereto, to the effect that he is a resident of and a householder or a free-holder within the state and is worth the penalty of the bond or twice the sum specified in the undertaking over all the debts and liabilities which he owes or has incurred and exclusive of property exempt by law from levy and sale under an execution; but when given by a party without a surety it must be accom- panied by his affidavit to the same effect; 5. It must be acknowledged or proved in like manner as a deed to be recorded; 6. It must be approved by the court, or a judge thereof, or the judge before whom the proceeding is taken, and the approval must be written thereon; 7. It must be filed with the clerk of the court unless otherivise ordered. EDITORIA]^ NOTES — Source: first paragraph covers General Rule of Practice 5 first part; subdivision 1 is CCP § 811, first clause; subdivision 2 is CCP § 811, second clause; subdivision 3 is CCP § 812, first clause; subdivision 4 is CCP § 812, second clause and second sen- tence; subdivision >5 is General Rule of Practice 5, second sentence; subdivision 6 is CCP § 812, third and fourth sentences; subdivision 7 is CCP § 816. General Rule of Practice 5 was formerly Equity Rule 120; Rules 76 and 89 of 1849; Rules 71 and 83 of 1852; Rules 5 and 6 of 1858; Rules 8 and 9 of 1871; Rules 8 and 9 of 1874; Rule 5 of 1877; Rule 5 of 1880; Rule 5 of 1884; Rule 5 of 1888; Rule 5 of 1896; Rule 5 of 1900; Rule 5 of 1910; Rule 5 of 1913. CCP § 811 originally inserted as new in 1880. CCP § 812 revised from 2 RS 190, c 1, § 148. CCP § 816 revised from OP § 423, -with no material change, except the omission of the provision as to filmg under- takings in replevin, which is one of the " special cases." Text In. Italics is new matter, inserted June 17, 1921. Civil Practice Act reference: Surety com- pany bond or undertaking, CPA § 156; Sub-> stantial compliance as to form, CPA § 150. Star (*) means read Ifot Into HEASKim: in capitals. For illustration see Rule 1. BOITDS AND UNDESTAXINQS AF- PECTED — Appeal liond: ('Allen 144 AD 509, 129 NTS 228). Fidelity bond: not given in action or special proceeding ('Lawyers 155 AD 254, 150 NTS 800). Undertaking': in bastardy proceeding (•PxCommissioners v Durando 20 AbNC 247). TWO SURETIES REQUIRED— Individual sureties: (Goldmark 28 AD 264, 51 NTS 68). PARTY REQUESTED TO UNITE IN UN- BERTAXINO — Nonresident plaintiff: in undertaking for costs (•Ellesohn 17 Mis 92, 39 NTS 332). APFROVAI. REQUIRED — Appeal bond: (Travis 48 Hun 343, 1 NTS 357). JUSTIFICATION SUFFICIENT— Certified copy: of annual report ('Haines 67 AD 389 73 NTS 2«3). Financial statement: of present financial condition of foreign surety company (Keogh 22 Mis 747, 50 NTS 998). Referee's report: (Keogh 22 Mis 747 50 NTS 998). Rule 26. Failure to file required bond or undertaking. Except where otherwise expressly provided, it shall be the duty of the attorney of the party required to give a bond or undertaking in an action or proceeding to forthwith file the same with the proper clerk. In case such bond or undertaking shall not be so filed, any party to the 23 SECURITY rr. 26,27 action or proceeding, or other persons interested, shall be at liberty to move the court to vacate the proceedings or order as if no bond or undertaking had been given. EDITOBX&I^ NOTES— Source: General Rule of Practice 4, first sentence, amended. Formerly Rule 4 of 1848; Rule 4 of 1871; Rule 5 of 1874; Rule 4 of 1877; Rule 4 of 1880; Rule 4 of 1884; Rule 4 of 1888; Rule 4 of 1896; Rule 4 of 1900; Rule 4 of 1910; Rule 4 of 1913. Text In, italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADI^INE In capitals. For illustration see Rule 1. FUSING BOND OB UNOEBTAXINa BE- QUIBED — Inadvertence: excused (Leffingwell 19 How 54). Ineffectual unless filed: undertaking on ap- peal (Webster 3 AbP 227). FU^INQ BOND OB UNDEBTABINQ TIMELY— After service of notice of appeal: under- taking to stay proceedings pending appeal (♦NY Central Ins Co 10 How 344). Bule 27. Attorneys not to be sureties or bail. In no case shall an attorney or coun- selor be surety on any undertaking 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. EDZTOBIAI^ NOTES — Source: General Rule of Practice 5, last paragraph, verbatim. Formerly Equity Rule 120; Rules 76 and 89 of 1849; Rules 71 and 83 of 1852; Rules 5 and 6 of 1868; Rules 8 and 9 of 1871; Rules 8 and 9 of 1874; Rule 5 of 1877; Rule 5 of 1880; Rule 5 of 1884; Rule 5 of 1888; Rule 5 of 1896; Rule 5 of 1900; Rule 5 of 1910; Rule 5 of 1913. Tezt In, Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. HISTOBY— In English courts: origin and development (Miles 17 Super 632). OBJECT OF BUI.E — Froteot attorneys: against the importunities of their clients (Hubbard 14 CivP 15). Protect clients: against exorbitant exactions of their attorneys (Willmont 48 How 430, so 16 AbNB 309). ATTOBNEY AS SUBETY ON UNDEBTAK. INa DISQUALIFIED — Attorney: as bail (Miles 15 Supr 709, afd 17 Supr 632; Coster 15 Johns 535; see Scott 1 Wend 35; see Bailey 20 Johns 129); who has abandoned the law for another vocation (•Evans 47 Supr 366; Stringham 6 CivP 420). UNDEBTAKING' BY ATTOBNEY AS STJBETY BINDING ■Security for costsi toy; attorney for non- resident (Willmont 48 How 430, sc 16 AbNS 309); attorney for nonresident client (Hub- bard 14 CivP 15; Walker 22 Wend 614); solicitor, under old chancery practice, for nonresident client ('Mickelthwaite 4 SandfCh 434). rr. 30-32 CLEVENGER'tS RULES OF CIVIL PRACTICE 24 TITLE 5 PAYMENT INTO COURT Rule 30. Administration of court funds; gross sum in lieu of income. 31. Consents to payment of money out of court. 32. Requirements as to orders for payment of money out of court. 33. Requirements as to drafts for the payment of money out of court. 34. Duties of depositories of moneys paid into court. miTORIAIi NOTES — Civil Practice Act references: Party bring- ing money into court is discharged, CPA § 133; Payment into court, CPA § 134; Title I to court funds, CPA § 135; Disposition of court funds, CPA § 136; Funds or property not to be surrendered without order, CPA § 137. Eule 30. Administration of court funds ; gross sum in lieu of income. When a party is entitled to the yearly interest or income of any sum paid into court and invested in permanent securities, he shall be charged with the expense of investing such sum and of receiving and paying over the interest or income thereof. If such party consent to accept a gross sum in lieu of yearly interest or income for life of a sum of money paid into court for his benefit, {except in case of douer which is provided for by ride two hundred and forty-three) the same shall be estimated according to the then value of an annuity at the rate of five per centam on the principal sum, during the probable life of such person, according to the American Experience Table of Mortality. EBITOSIAXi ITOTES — Source: General Rule of Practice 70, amended as to Table of Mortality. Form- erly Equity Rule 127; Rule 80 of 1849; Rule 75 of 1852; Rule 84 of 1858; Rule 85 of 1871; Rule 85 of 1874; Rule 76 of 1877; Rule 71 of 1880; l^ule 71 of 1884; Rule 71 of 1888; Rule 70 of 1896; Rule 70 of 1900; Rule 70 of 1910; Rule 70 of 1913. General Rule 70 read: "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 expenses of in- vesting 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 an- nual interest or income for life, the same shall be estimated 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 Carl- isle Table of Mortality." Tent in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEASJOINE in capitals. For illustration see Rule 1. F2SSONS CHABGEABIiX: WITH ADBUN- ISTKATIOIT FEES — Widow: entitled to award under workmen's compensation act (Sperduto 188 AD 145, 73 NYS 834). WHO ENTITIiED TO GROSS STTIlI — Administrator: suing for death of intestate by wrongful act (Sauter 6 Hun 446). Assignee: of mortgage given by life tenant (Germain 29 Mis 258, 61 NTS 700). Person: suing on testator's contract to sup- port for life (Schell 55 NT 592, 16 AbNS 19). Wido-w; having life interest created by will in lieu of dower in mortgage foreclosure surplus CZahrt 94 NT 605); suing under civil damage act for death of husband (Davis 2i6 Hun 608). INCOJUE: RECOVERY' BARRED BV BISEC- TION — Gross sum: accepted by life tenant in lieu of income from award for land taken by city (Tucker 187 AD 502, 175 NYS 769). Widow's portion: of municipal assessment computed according to rule (Kirchner 71 Mis 57, 127 NYS 399). MATTERS WITHIN RXTISE — Money paid into court fund in hands of executor derived from sale of lands in which widow has life estate (*Shadbold 72 Mis 591, 131 NYS 989). Value of life estate: computation of ('Beek- man 66 AD 72, 73 NYS 110). Value of reonainder: apportion among sev- eral remaindermen (Sullivan 94 Mis 529, 159 NYS 616). ■RVJJi CITED — But not appUed: (Adams 220 NY 579, dis op). Rule 31. Consents to payment of money out of court. AH consents to the payment of money out of court shall be acknowledged before an officer authorized to take the acknowledgment of deeds, accompanied with proof of the identity of the applicant from some person other than the applicant, before any order is granted thereon. EDITORrA.1. NOTES — Source: General Rule of Practice 12. Form- erly Rule 17 of 1871; Rule 17 of 1874; Rule 12 of 1877; Rule 12 of 1880; Rule 12 of 1884; Rule 12 of 1888; Rule 12 of 1896; Rule 12 of 1900; Rule 12 of 1910; Rule 13 of 1913. General Rule 12 read: "All consents provid- ing for the payment," etc. Text In italics is new marter, inserted June 17, 1921. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. Rule 32. Reciuirements as to orders for payment of money out of court. No order shall be made for the payment of money that has been paid into court, except on peti- tion duly verified and acknowledged, which petition must be accompanied by a certified copy of the judgment or order under which the money is deposited, together with a 25 PAYMENT INTO COURT rr. 82-34 certificate of the county treasurer, city chamberlain or other depository of the money, showing the present condition and amount of the fund, stating separately principal and interest. The court may take proof of the matters stated in the petition or may refer the same to a referee to take proof and report thereon. No order shall be made for the payment of money out of court in any action or pro- ceeding except on motion or order to show cause served on the attorneys of all the parties who have appeared therein or filed notice of claim thereto. Every order for the payment of money out of court, or for the payment of the interest or accumulation thereon^ shall direct the payment to be made to the person entitled to receive the same. An attorney or other person procuring an order for the payment of money out of court shall obtain two certified copies of the order; one copy shall be filed with the county treasurer or other custodian of such money and 'the other shall accompany the draft drawn on, and be filed with the depository. No bank, trust company or other depository shall pay out any of such moneys without the production and filing of such certified copy of the order. If an order direct periodical payments to be made, the filing with the depository of one copy of the order shall be sufficient to authorize the payment of subsequent drafts in pursuance thereof. ESITOBIA]^ ITOT£S — Source: First paragraph is General Rule of Practice 59, last paragraph; third sentence is General Rule of Practice 69, second sen- tence; fourth sentence is General Rule of Practice 69, first sentence, first clause; re- mainder of rule is General Rule of Practice 69, last three sentences. General Rule 59 was formerly Equity Rule 103; Rule 60 of 1849; Rule 56 of 1852; Rule 70 of 1858; Rule 71 of 1871; Rule 71 of 1874; Rule 62 of 1877; Rule 59 of 1880; 1884, 1888, 1896, 1900, 1910, 1913. General Rule 69 was formerly Equity Rule 145; Rule 85 of 1849; Rule 80 of 1852; Rule 83 of 1858; Rule 84 of 1871; Rule 84 of 1874; Rule 75 of 1877; Rule 70 of 1880, 1884, 1888; Rule 69 of 1896, 1900, 1910, 1913. General Rule 69, last par- agraph read: "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 pur- suance of which the money was brought into court, together with a statement of the county treasurer, city chamberlain, or other depository of the money, showing the present state and amount of the fund, sep- arating 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." General Rule 69, pertinent part, read: "All orders directing the payment of money out of court shall direct the pay- ment 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 to the order of the person entitled to the moneys; and shall specify in what particular suit or on what account the money is to be paid out, and the time when the order authorizing such payment was made. No order in any pend- ing action, 'for the payment of money out of court, shall be made, except on regular notice of order to show cause, duly served on the attorneys of all the parties who have appeared therein, or filed notice of claim thereto. * * * Any attorney or other person procuring 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; oi)e copy shall be filed with the county treasurer and the other shall ac- company the draft drawn upon the deposi- tory and be filed with it, and the several banks and other depositories having trust funds of the court on deposit, are forbid- den to pay out any of such funds without the production and filing of such certified and countersigned copy order." Tezt in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Funds or property not to be surrendered without order, CPA § 137. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. PEKSONS EHTITI^ED: PAYMENT SI. KECTED — Attorney: of infant entitled to share of pro- ceeds arising on partition (•Uhl 52 AD 455 65 NYS 197). (reneral guardian: of moneys arising on sale of infant's realty (*Allen 55 AD 454, 67 NTS' 97). Party; entitled under stiplation to moneys paid into court to abide result of action (Avis 157 AD 904, 142 NYS 283). Rule 33. Kectuirements as to drafts for the payment of money out of court. Every draft for the payment of money out of court, or for the payment of the interest or accumulation thereon, shall be drawn payable to the order of the person entitled thereto and shall specify the title of the cause or matter on account of which the draft is made and the date of the order authorizing such draft. EDITOBIAl. NOTES— Source: General Rule of Practice 69, first sentence, last part, and fifth sentence. Formerly Equity Rule 145; Rule 85 of 1849; Rule 80 of 1852; Rule 83 of 1858; Rule 84 of 1871; Rule 84 of 1874; Rule 75 of 1877; Rule 70 of 1880; Rule 70 of 1884; Rule 70 of 1888; Rule 69 of 1896; Rule 69 of 1900; Rule 69 of 1910; Rale 69 of 1913. See Rule of Civil Practice 32. Text in italics is new matter, inserted June 17, 1&21. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. Bule 34. Duties of depositories of moneys paid into court. When moneys are deposited by the order of the court i-n any trust company, bank or other depository, the entry of such deposit in the books of the depository shall contain a short reference to the title of the cause or matter in which the deposit is directed to be made and shall r. 34 CLEVENGER'S RULES OF CIVIL PRACTWE 26 specify the time from which the interest or accumulation on the deposit is to commence where it does not commence from the date of such deposit. On or before the first day of February in each year, such depository shall transmit to the appellate division of the suprerne court in the department in which the depository is situated a statement of the funds in its custody, showing the amount on the last preceding first day of January, including the interest or accumulation on the sum deposited to the credit of each cause or matter. ESITOBIAX NOTES Source: General Rule of Practice 69, third and fourth sentences. Formerly Equity Rule 145; Rule 85 of 1849; Rule 80 of 1852; Rule 83 of 1858; Rule 84 of 1871; Rule 84 of 1874; Rule 75 of 1877; Rule 70 of 1880; Rule 70 of 1884; Rule 70 of 1888; Rule 69 of 1896; Rule 69 of 1900; Rule 69 of 1910; Rule 69 of 1913. See Rule of Civil Prac- tice 32. Text in itaJlcs is new matter, inserted June 17. 1931. Star (•) means read Not into HEAStlNS in capitals. For Illustration see Rule 1. 27 ACTION BY OR AGAINST POOR PERSON r. 35 TITLE 6 ACTION BY OR AGAINST POOR PERSON Rule 35. Petition for leave to sue as poor person. 36. Order to sue as poor person, 37. Leave to defend as poor person. ESITORIAZ. NOTES — Civil Practice Act references: Leave to sue as poor person, CPA § 196; Costs in former action no bar, CPA § 197; Leave to defend as poor person, CPA § 198; Poor person defined, CPA § 199. Rule 35. Petition for leave to sue as poor person. An application for leave to prosecute as a poor person shall be made by petition to the court in which the action is pending or in which it is intended to be brought, which petition must state: 1. The nature of the action brought or intended to be brought; 2. That the applicant is not worth one hundred dollars besides the wearing apparel and furniture necessary for himself and his family and the subject matter of the action. It must be verified by the applicant's affidavit, unless the applicant is an infant under the age of fourteen yeare and in that case by the affidavit of his guardian appointed in said action, and supported by the certificate of an attorney and counselor-at-law to the effect that he has examined the case and is of the opinion that the applicant has a good cause of action. EDITOBIAb irOTES — Source: First paragraph is CCP § 458; re- mainder of rule is CCP § 459. CCP § 458 revised from 2 RS 444, pt 3, c 8, tit 1, § 1; CCP § 459 revised from § 2. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Leave to sue as poor person, CPA § 196; Poor person de- fined, CPA § 199; Appeal by poor person, CPA § 558. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. "WHO MA7 SITE AS POOR PERSON — Aclministrator: (Cannice 52 Mis 6, 101 NTS 1054). Adult: (Larson 97 AD 150, 89 NTS 649; Hotaling- 7 CivP 320). Committee of lunatic: (•Bechtle 31 AbNC 483, 30 NTS 410). Coplaiutiffs: (Ostrander 14 How 16), one of several (*Ostrander 14 How 16). Executor: (Cannice 52 Mis 6, 101 NTS 1054). Snsbaud: sue wife for limited divorce (McAllen 1 LBull 60). Infant; (Larson 97 AD 150, 89 NTS 649; Miller 77 AD 212, 78 NTS 1022; Feier 9 AD 607, 41 NTS 821; Gallagher 39 Mis 637, 80 NTS 606; Trimble 12 Mis 459, 34 NTS 256; Tobias 14 NTS 641; Friedman 5 StR 913; Hotaling 7 CivP 320; Erickson 5 CivP 379; Irving 4 CivP 105, 13 AbNC 182; Nichols 2 CivP 375; 'Daly 2 CivP 22 note; •Kleinpeter 2 CivP 21). laarried woman: suit by next friend against husband for separation (Robertson 3 Paige 387); for injury to separate property (Rob- ert! 18 How 466). ITonresiaent: (Harris 13 NTS 718; See •Thomas 6 Hill 257), suing in federal court (Hackman 19 AbNC 394). SUITS WHIOK MAV BE PROSE CTTTED BT POOR PERSON — Chancery: (Brown 1 Paige 588). Com.mon law: (Brown 1 Paige 588). federal court; action in (Heckman 19 AbNC 394). APPIiICATION FROPER^V MADE BY — Administrator: (Cannice 52 Mis 6, 101 NTS 1054). Executor: (Cannice 52 Mis 6, 101 NTS 1054). Father of infant: not yet appointed guard- ian ad litem and no action commenced (•Kerrigan 64 AD 497, 72 NTS 230). Guardian ad litem: (*Florence 8 Supr 705), aa petitioner (•Cohen 84 NTS 573); of same plaintiff In different action dismissed before application ('Rosso 13 AD 375, 43 NTS 216). Infants: (Trimble 12 Mis 459, 34 NTS 256; Cohen 84 NTS 573; Tobias 14 NTS 641; Florence 8 Supr 705), after guardian ad litem appointed (Glasberg 12 CivP 50); before guardian ad litem appointed (•Glas- berg 12 CivP 50; •Bryne 1 Edw 41). Nonresident; (Harris 13 NTS 718). APPIIICATION TI3IEI.Y — Before: action brought (Kahn 18 Mis 568, 42 NTS 461; Shapiro 7 Mis 418, 27 NTS 980); guardian ad litem appointed for in- fant plaintiff (*Byrne 1 Edw 41). Belay: over a year after action commenced and until case referred and noticed for trial (•Florence 8 Supr 705); tnree years after issue joined, nor explanation or ex- cuse ('Sweeney 10 Mis 29, 30 NTS 1051). Bisntissal on merits: subsequent application for purpose of appeal (•Ostrander 14 How 16). Issue joined; application shortly thereafter (Kahn 18 Mis 568, 42 NTS 461). Pending action: (Kahn 18 Mis 568, 42 NTS 461; Shapiro 7 Mis 418, 27 NTS 980), after- thought ('Glasberg 12 Civ P 50). Security for costs; moved for motion not yet heard (Friedman 5 StR 913); ordered (Shearman 106 NT 664; Shapiro 7 Mis 418, 31 AbNC 147, 27 NTS 980), after hearing plaintiff in opposition (•Friedman 5 StR 913). NATURE OP ACTION lOUST BE STATED — Clearly shown: by petition (Larsen 97 AD 150, 89 NTS 649). NATURE OF ACTION SUFFICIENTI.V STATED — Reference: to complaint (McGillicuddy 10 Mis 21, 30 NTS 833). SHOWING INABHiITV TO PROSECUTE NECESSARY — Coplaintiffs: showing must extend to all (Ostrander 14 How 16). Failure to show: fatal defect (Larsen 97 AD 150, 89 NTS 649; Cohen 84 NTS 573). SHOWING INABILITY TO PROSECUTE SUFFICIENT — Nonownerstalp : of |10O worth of property only fact ('Kaufman 68 AD 94, 74 NTS 146; 'Weinstein 56 AD 275, 67 NTS 746). SHOWING PETITIONER A FOOB PERSON SUFFICIENT — Administratrix allege own lack of means: condition of estate not alleged ('Daus 25 AD 185, 49 NTS 291). Both infant and guardian, ad litem ; poor persons (Irving 4 CivP 105, 13 AbNC 182). Car conductor; large family to support, un- able to obtain sureties on undertaking for costs (Irving 4 CivP 105, 13 AbNC 182) rr. 35,36 GLEVENOER'S RULES OF CIVIL PRACTICE 28 t^arity: must be object of (Isnard 1 Paige CoplaliitiffB: poverty not shown to extend to all (•Ostrander 14 How 16). Extension of time: to furnish security for costs asked in case petition denied ('Berk- man 65 AD 79, 72 NYS 661). Home witli wife and child: second floor of four or Ave rooms comfortably furnished (McNamara 13 Mis 76, 34 NYS 178). Infant -without property given: bequeathed, or inherited ("Gallerstein 26 Mis 853, 55 NYS 444). No present means: to prosecute only allega- tion, fail to state inability to get means or prosecute, show receipt of wages but not state amount, fail to state facts as to sup- port by self or parents ('Kaufman 68 AD 94, 74 NYS 146). Possession of money or property: not nega- tived, state merely inability to procure from others undertaking or money to de- posit as security ('Rutkowsky 74 AD 415, 77 NYS 546). Style of liviner: beyond that permitted by compensation of most judicial ofTlcers, rent paid for dwelling $400, servant kept (*Ish- ard 1 Paige 39). Wages: $15 per week (McNamara 13 Mis 76, 34 NYS 178). "Worth: $300 over debts and liabilities (*See Wemyss 88 AD 475, 85 NYS 91). MEANS OF PERSON OTHER THAN IN- EANT PiAINTIFE IMMATEBlAi — Father: (Larsen 97 AD 150 89 NYS 649; Shapiro 7 Mis 418, 27 NYS 980; Bonadoa 30 NYS 410). Cruardian ad litem: (Larsen 97 AD 150 89 NYS 649; Muller 77 AD 212, 76 NYS 1022; Feier 9 AD 607, 41 NYS 821; Gallagher 39 Mis 637, 80 NYS 606; Shapiro 7 Mis 418, 31 AbNC 147, 27 NYS 980; Cohen 84 NYS 573; Tobias 14 NYS 641), where a parent CWemyss 88 AD 475, 85 NYS 91; *Sumkow 84 AD 463, 82 NYS 995; 'Rutkowsky 74 AD 415, 77 NYS 546, as explained in Muller 77 AD 212, 78 NYS 102,2; Gallagher 39 Mis 637, 80 NYS 605; 'Cohen 84 NYS 573); where not a parent (Muller 77 AD 212, 78 NYS 1022, explaining Rutkowsky 74 AD 415, 77 NYS 546). SHOWING- Gi-OOS CA-USE OF ACTION NEC- ESSARV — Defect fatal: (Traver 98 AD 287, 90 NYS 739; Wemyss 88 AD 475, 85 NYS 91). Separation suit: by wife against husband, reasonable or probable grounds must be ascertained by report of master (Robert- son 3 Paige 387). SHOWING- GOOD CA-I7SE OF ACTION SUF- FICIENT — Advice of co-unsel sho-nm: facts not set forth (•■Weinstein 56 AD 275, 67 NYS 746). Contributory negligence: shown by opposing affidavits ('Beyer 29 AbNC 338, 22 NYS 540). Former action: dismissal properly consid- ered (Pankawicus 167 AD 419, 155 NYS 123); failure of proof in, no affidavits to show facts supplying failure affidavit of attorney allege facts will be shown at trial CCannice 52 Mis 6, 101 NYS 1054). Former trial: adverse result not preclude granting leave (Young 34 AD 126, 54 NYS 600). Information and belief: basis of petition ('Traver 98 AD 287, 90 NYS 739; 'Saltz- man 18 Mis 253, 41 NYS 547); sources and grounds not stated, opposing affidavits based on knowledge ('Saltzman 18 Mis 253, 41 NYS 547); verified ('Traver 98 AD 287, 90 NYS 739). Negligence: fail to show defendant's con- nection with premises on which plaintiff injured ('Wemyss 88 AD 475, 85 NYS 91). Opindon of attorney: certificate of ('Traver 98 AD 287, 90 NYS 739). Opinions: of experts in opposing deposi- tions, action against physician for malprac- tice (McNamara 13 Mis 76, 34 NYS 178). Beasona-bly clear case: necessary (Beyer 29 AbNC 338, 22 NYS 540). Truth of allegations -warrant recovery: ac- tion instituted in good faith (McNamara 13 Mis 76, 34 NYS 178). Unveriflea complaint: ('Traver 98 AD 287, 90 NYS 739). Verified complaint: sufficient facts posi- tively stated (Traver 98 AD 287, 90 NYS 739). SHOWING CONSENT OF ATTORNEY TO ACT WITHOUT COMPENSATION NEC- ESSAR-S- — Moving papers: better practice to file con- sent with (Davis 25 AD 185, 49 NYS 291); must show (Traver 98 AD 287, 90 NYS 739). ■V-E?tIFICATION SUFFICIENT — Guardian ad litem: plaintiff an infant (Lar- sen 97 AD 150, 89 NYS 649); prospective before appointment or commencement of action ('Kerrigan 64 AD 497, 72 NYS 230). NOTICE REQUIRED — Application after: action commenced (•Rosa 30 AD 334, 46 NYS 807; Conboy 25 Mis 52, 53 NYS 1004; Thomas 6 Hill 257; Isnard 1 Paige 39); appearance (Ostrander 14 How 16). IiEA-V-E TO RENEW AFPIiICATION GRANTED — Good cause of action: not shown but plain- tiff shown to be poor person (Saltzman 18 Mis 353, 41 NYS 547). Reversal of order: granting application (Wemyss 88 AD 475, 85 NYS 91). COIOPARED WITH — Municipal Court Code: § 28 (Monteforte 162 NYS 762). RUI^E CITED — But not applied: (McDewltt 185 AD 370, 173 NYS 154; Tropeano 173 AD 534, 159 NYS 1025; Wilner 122 AD 615. 107 NYS 497; Lyons 12 CivP 72; PxBrown 3 How NS 1). Eule 36. Order to sue as poor person. The court to which the petition is presented, if satisfied of the truth of the facts alleged and that the applicant has a good cause of action, hy order may permit him to prosecute as a poor person and assign to him an attorney to prosecute his action, who must act therein -without compensation. If the person so permitted be guilty of improper conduct in the prosecution of his action or of wilful or unnecessary delay, the court, in its discretion, may annul the order per- mitting him to prosecute as a poor person, and thereafter he shall be deprived of all the privileges conferred thereby. Civil Practice Act references: Leave to sue as poor person, CPA § 196; Poor person de- fined, CPA § 199. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1 GRANT OF I^A-VE DISCRETIONARY Appeal; fair exercise of discretion not re- viewed (Young 36 AD 126, 54 NYS 600) presents only question of abuse of dis- cretion (Steinberg 17 Mis 53, 3D NYS 1132) EDITORIAi; NOTES— Source: First sentence is OCP § 460; last sentence is CCP § 462. CCP § 460 revised from 2 RS 44, pt 3, c 8, tit 1, § 3; CCP § 462 from § 5. CCP § 460 read " admit " instead of "permit," and CCP § 462 read " admitted " and " admitting " instead of " permitted ' and " permitting." Text in italics is new matter, inserted June 17, 1921. l3 ACTION BY OR AGAINST POOR PERSON rr. 36,37 Discretloii exercised: (Trimble 12 Mis 459, 34 NYS 256; Joyce 49 Supr 115). HICrHT ABSOIilJTE WHERE FBESCBIISEB CONDITIONS EXIST — By complying' witli statutory conditions: (Kahn 18 Mis 568, 42 NYS 461; Shapiro 7- Mis 418, 31 AbNC 147. 27 NYS 980; Bechtle 31 AbNC 483, 30 NYS 410). Infant plaintiff: (Florence 8 Supr 705). ZiEAVE PBOFBBI^V G-BANTES — A^eement with attorney; contingent fee (*Cahill 38 AD 314, 57 NYS 10); whereby action can be carried on without present expense ('Downs 18 AbNC 464, 12 CivP 119). Appeal: to prosecute ('Ostrander 14 How 16). Arrest: of defendant caused by plaintiff (•Friedman 5 StR 913). Assigned interest in claim to; attorney to compensate for services (* Joyce 49 Supr 115); third person (*Joyce 49 Supr 115). Bad faith: in bringing action ('McNamara 13 Mis 76, 34 NYS 178). Costs -unpaid, former: action (Panlrawicus 169 AD 419, 155 NYS 123; Rosa 20 AD 334, 46 NYS 807; Monteforte 162 NYS 762; Rob- erti 18 How 466); trial (Young 34 AD 126, 54 NYS 600). Inconsistent allegations: as to parents' means in application for leave to prosecute as poor person and application for appoint- ment of parent as guardian ad litem (•Sumkow 84 AD 463, 82 NYS 995; 'Cohen 84 NYS 573). No cause of action: on facts alleged ('Mc- Namara 13 Mis 76, 34 NYS 178). Provisional remedy: availed of by plaintiff (•Friedman 5 StR 913). Security for costs; previously ordered (Lar- son 97 AD 150, 89 NYS 649; Sumkow 84 AD 463, 82 NYS 995; Shapiro 7 Mis 418, 31 AbNC 147, 27 NYS 980; Erickson 5 ClvP 379; Irving 4 CivP 105, 13 AbNC 182); against plaintiff's opposition (*Friedman 5 StR 913); application to sue as poor person on afterthought (*Glasberg 12 CivP 50); proceedings stayed until compliance (Shearman 106 NY 664). Stay of proceedings: by failure to pay costs imposed in same action ('Brangaccio 143 AD 612, 128 NYS 467; •MuUer 139 'AD 727, 124 NYS 491). TTnreasona1>le refusal: improper (Downs 12 CivP 119). Vrithout sufficient evidence: of facts en- titling plaintiff to relief (•Downs 12 CivP lil9). ■Writ of error: to prosecute (•Moore 2 Hill 412, prior rule). REBUTTING APEIDAVITS FEBMITTES — Appellate court: (Saltzman 18 Mis 253, 41 NYS 547). Trial court; (Beyer 22 NYS 540). REBUTTING AEPIDAVITS SUITICIBNT — Affirmative defenses; set up ('Kahn 18 Mis 568, 42 NY'S 461). Contributory negligence: shown (Beyer 29 AbNC 338, 22 NYS 540). Failure to controvert facts: alleged in peti- tion or sufRciency of cause of action (•Kahn 18 Mis 568, 42 NYS 461). ATTORNEY TO BE ASSIGNED — Order defective: where no assignment (Pankawicus 169 AD 419, 155 NYS 123; Dans 25 AD 185, 49 NYS 291). ASSIGNIffiENT OF ATTORITEy FROFEB — Attorney making application: ('Harris 13 NYS 718), in exceptional cases, provided plaintiff knows attorney bound to act with- out compensation and attorney certifies he will do so (Harris 13 NYS 718). Designation; by applicant not controlling (Helmprecht 87 Hun 352, 34 NYS 1141). ATTORNEY MUST ACT -WITHOUT COM- PENSATION — Agreement: for contingent fee bars right (Cahill 38 AD 314, 57 NYS 10), so to act necessary (Helmprecht 87 Hun 362, 34 NYS 1141). Costs: if recovered may be retained by at- torney, but no right against client when costs set off against another judgment (Kelly 12 Daly 110). Federal court: action in (•Tyndall 117 AD 294, 102 NYS 211). Order: must so provide (Sumkow 84 AD 463, 82 NYS 995; Rutkowsky 74 AD 415, 77 NYS 546; Dans 25 AD 185, 49 NYS 291). ORDER GRANTING IiEAVE AFFEAIi- ABl^E — Substantial right: affected (McNaraara 13 Mis 176. 34 NYS 178). COSTS IMPOSED ON DENIAX, OF AI>FI.I. CATION — Ten doUars: (Wemyss 88 AD 475, 85 NYS 91; Sumkow 84 AD 463, 82 NYS 995; Cohen 84 NYS 573). To aTjide event; ("Wemyss 88 AD 475, 85 NYS 91). COSTS IMFOSED ON REFUSAZi TO VA- CATE GRANT OF IiEAVE — Prior decisions: under which leave should be vacated not followed (*Nichols 2 CivP 375). Ten dollars: (CJallagher 39 Mis 637, 80 NYS 606). I^IABIiE FOR COSTS NOTWITHSTANDING LEAVE — Improper or irregnilar proceedings: (Brown 1 Paige 588). COMPARED WITH — Mnn Ct Code: § 28 (Monteforte 162 NYS 762). RUIZES CITED — But not applied: (McDewitt 185 AD 370, 173 NYS 154; Wilner 122 AD 615, 107 NYS 497; PxBrown 3 HowNS 1). Rule 37. Leave to defend as poor person. The petition must contain the same matters respecting the ability of the petitioner required to be set out in a petition for leave to prosecute as a poor person and it must be supported by a similar certificate relating to the defense. The provisions of the rule relating to the order to be made on an application for leave to prosecute as a poor person and the proceedings subsequent thereto apply to the order and further proceedings on an application for leave to defend as a poor person. EDITORIAI^ NOTES — Source; First sentence is CCP § 464; last sentence is CCP § 465. CCP § 464 and § 465 originally inserted as new in 1880. CCP § 464 read " contained " instead of " set out." CCP § 465 read "this article" in- stead of "the rule," and " upon " instead of " on," and " and subsequent proceed- ings " instead of " and further proceed- ing-s." Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Leave to de- fend as poor person, CPA § 198; Poor per- son defined, CPA § 199. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. SHOWING DEFENDANT A POOR PERSON SUFFICIENT — Claim against plaintiffs: amount due from United States for wages, already paid counsel $74 ('Brown 1 Paige 588). Subject matter of action; to be included (Brown 1 Paige 588). SHOWING MERITORIOUS DEFENSE NEC- ESSARY — Swearing: that defense meritorious neces- sary (Brown 1 Paige 588). RUI.E CITED — . But not applied: (PxBrown 3 HowNS 1). rr. 39,40 CLiEVENGER'S RULES OF CIVIL PRACTICE 30 CPA § 205; Guardian for absent infant de- fendant, CPA § 206; Guardian of infant or incompetent person without application, CPA § 207; Guardian ad litem for incom-, petent person in certain cases, CPA § 208. TITLE 7 GUARDIANS AD LITEM AND SPECIAL GUARDIANS Rule 39. Time to apply for guardian ad litem for infant defendant. 40. Qualifications of guardians ad litem and special guardians. 41. Security of guardians ad litem and special guardians. 42. Duty of guardian ad litem. 43. Compensation of guardian ad litem or special guardian. 44. Duty of person designated to receive aummons in behalf of an infant or incompetent ; compensation. EDITOKU.]^ NOTES — Civil Practice Act references: Guardian ad litem generally, CPA § 202; Application for guardian ad litem, CPA § 203; Notice of application for appointment, CPA § 204; Liability for costs of guardian ad litem. Rule 39. Time to apply for guardian ad litem for infant defendant. If application for the appointment of a guardian ad litem be not made on behalf of the infant within twenty days after the completion of service on him, such application may be made by any other party to the action as provided in section two hundred and three of the civil practice act. ESITOBLAX NOTES — Source: CCP § 471, first sentence, last part, as revised from CP § 116, subd 2. CCP § 471, first sentence, read: "An infant de- fendant must also appear by guardian, who must be a competent and responsible per- son, appointed upon the application of the infant, if he is of the age of fourteen years, or upwards, and applies within twenty days after personal service of the summons, or after service thereof is com- plete, as prescribed in section four hun- dred and forty-one of this act; or if he is under that age, or neglects so to aJSply, upon the application of any other party to the action, or of a relative or friend of the infant." Text in Italles is new matter, inserted June 17, 1921. Civil Practice Act references: Guardian ad litem generally, CPA § 202; Notice of ap- plication for appointment, CPA § 204. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. vrao siAir apply; on; infant's be- SALP— Friend: action to set aside conveyance, in- fant not served (*Grant 9 Paige 255). Infant: after expiration of 20 days, where no' guardian has been appointed (McConnell 3 Sandf 728); assault and battery, infant given opportunity to select own guardian (Richardson 3 NTS 396); before served with process (Disbrow 5 AbP 53; Shriver 12 WkD 328, 86 NT 575). AFFLICATION ON INFANT'S BEHALF TEHELY — By father: on 20th day after service (Gra- ham 7 Rob 147). By mother; appointed after service of sum- mons on her infant not served ('Ingersoll 84 NT 622). APPLICATION BY PARTY TO ACTION FBOPEK — Coaefeudant: in partition action, before service of summons on infant ('Van Wil- liams 106 AD 288, 94 NTS 611). Plaintiff: before expiration of 20 days after completion of service on infant defendant CKeyes 5 StR 486, 25 NTS 693); mortgage foreclosure, after expiration of 20 days from completion of service by publication on nonresident infants (Piatt 60 AD 312, 70 NTS 74); mortgage foreclosure, infant defendant not served ('Glover 19 AbP 161n); partition, after expiration of 20 days from completion of service by publication on nonresident infants (Mace 8 CivP 200, 17 AbNC 100; Kennedy 18 CivP 390, 11 NTS 661); proceeding by testamentary trustee of infant to be discharged and his account settled, after expiration of time to show cause in compliance with order (Cutting 38 AD 247, 56 NTS 945); replevin, after ex- piration of 20 days from completion of service on infant defendant (Wheeler & Wilson Mfg Co 2 Mis 236, 21 NTS 1006). Rule 40. Qualifications of guardians ad litem and special guardians. The following qualifications shall be required of a guardian ad litem of an infant in an action and of a special guardian of an infant or incompetent in a proceeding: 1. He shall be the general guardian of the infant, or a person fully competent to understand and protect the rights of the infant or incompetent; 2. He shall have no interest adverse to that of the infant or incompetent nor be con- nected in business with the attorney or counsel of any adverse party, nor shall he be nominated by any person having an adverse interest; 3. He shall be of sufficient ability to answer for any damage which may be sus- tained by his negligence or misconduct, and such ability shall be shown by affidavit stating facts in respect thereto; 4. Any trust company authorized by the laws of the state to act as a general guardian without giving security may be appointed; 5. The written consent of the proposed guardian, duly acknowledged, shall be filed; 31 GUARDIANS AD LITEM AND SPECIAL GUARDIANS rr. 40,41 6. It shall be the duty of every attorney or officer of the court to act as the guardian of an infant defendant in any suit or proceeding against him whenever appointed for that purpose by an order of the court. EDITOBIAI. NOTES — Source: Subdivisions 1. 2, 3 are General Rule of Practice 49; subdivision 4 is CQP § 2352, part; subdivision 5 is CCP § 472, last sentence; subdivision 6 is General Rule of Practice 50, first sentence. General Rule 49 was formerly Equity Rule 99; Rule 66 of 1849; Rule 53 of 1852; Rule 60 of 1858; Rule 61 of 1871; Rule 61 of 1874; Rule 52 of 1877; Rule 4i9 of 1880; Rule 49 of 1884; Rule 49 of 1888; Rule 49 of 1896; Rule 49 of 1900; Rule 49 of 1910; Rule 49 of 1913. General Rule 50 vpas formerly Equity Rule 97; Rule 55 of 1849; Rule 52 of 1852; Rule 61 of 1858; Rule 62 of 1871, 1874; Rule 53 of 1877; Rule 50 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. CCP § 472 as revised from CP § 115, 2 RS 446, pt 3, c 8, tit 2, § 4? CCP § 2352 revised from 2 RS 194-196, pt 3, c 1, tit 2, §§ 171-172. Text In italics is new. matter, inserted June 17, 1921. Civil Practice Act references: Guardian ad litem generally, CPA § 202. Star (*) means read Not into HEASIiINE in capitals. For illustration see Rule 1. PERSONS ADTEBSEI^Y INTERESTED— Executor and testamentary trustee: bound to foreclose mortgage against infant (Hecker 43 Hun S93). Special guardian: part owner with infant in property intended to be sold and cred- itor against infant's share ('Tillotsons 2 Bdw 113). PERSONS CONNECTED IN BT7SINESS VriTS COUNSEI^ — Clerk: in office of plaintiff's attorneys (Lake 64 AD 540, 72 NYS 311). Mem'ber of law firm: appearing for persons whose interests were distinctly adverse to those of infants (Heuel 165 AX> 14, 150 NYS 540). NOMINATING- PERSON HAVING AD. VERSE INTEREST— Complainant: seeking appointment of guard- ian for defendant (Knickerbocker 2 Paige ■304). Priend-: of complainant and interested in his success (Grant 9 Paige 255). Person wliose accounts: were to be passed (Cutting 38 AD 247, 66 NTS 945). PERSONS OF SITPriCIENT PECUNIARY ABIIiITV — Father: worth more than ?100 (Larsen 97 AD 160, 89 NTS 649); earning $2 per day, (•Maug 5 CivP 162). ACKNOWXiEDGIOENT OF CONSENT NEC- ESSARy — By gTiaraian: for plaintiff (Cole 6 CivP 305); designated nisi CSchell 65 Hun 207, 7 NYS 858). ATTORNEYS OR COURT OFFICERS BOUND TO ACT — Attorney; (Howe 2 Edw 484; Richardson 3 NYS 396). Court clerk: (Fisher 34 Hun 183). Guardian ad. litem: appointed in Justice Courts (*Short 164 NYS 236). GUARDIAN AD I.ITEM COSDVUTTING TRUST WHOZ:.I^V TO ATTOBNE'S' RE- MOVED — (Litchfield 5 How 341). ERRONEOUS APPOINTMENT IN VT0:LA- TION OF RUI^E NOT SUBJECT TO COI^I^ATERAI^ ATTACK — (Parish 176 NT 181, 68 NB 298). Eiile 41. Security of guardians ad litem and special guardians. 1. Except in a case specially prescribed by law, a guardian ad litem or special guardian shall not be permitted to receive money or property other than costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court or a county judge, to account for and apply the same under the direction of the court; provided, however, that where the money or the value of such property does not exceed one hundred dollars, security may he dispensed with in the discretion of the court. 2. Such security shall he a bond to the infant or incompetent conditioned for the faithful discharge of the trust, for the paying over and investing of and accounting for all moneys received by the guardian and for the observance of any provision of law or of the rules and the directions of the court in relation to the trust. New or addi- tional security may he required hy the court at any time. 3. Where a trust company authorized by the laws of this state to act as general guardian of the estate of an infant without giving security is appointed as guardian ad litem or special guardian of an infant, the order of appointment may dispense with the giving and filing of any security. 4. This rule does not apply to a general guardian of an infant who has been appointed guardian ad litem or special guardian, but at any time the court may require the general guardian to give additional security for the faithful discharge of his trust before receiving money or property of the infant under a judgment or order in the action or proceeding. EDITORIAL NOTES — Source: Subdivision 1, except last clause, is CCP §§ 474, 1636, which cover General Rule of Practice 51, first paragraph; sub- division 1, last clause, is new; subdivision 2 is new (see CCP §§ 474, 475); subdiv- ision 3 is CCP § 2352, last sentence, part, which also covers CCP § 1536; subdivision 4 is CCTP § 476, which covers General Rules of Practice 61, last paragraph, and 57. Text in italics is new matter, inserted June 17, 1921. CivU Practice Act references: Liability for costs of guardian ad litem, CPA § 205. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. PERSONS REQUIRED TO GIVE SECUR- ITY — Court clerk: appointed guardian ad litem of infant defendants in partition suit (Fisher 34 Hun 183). Guardian ad litem: appointed in city court (■•Short 154 NYS 236). Special g'uafdlan: (Dodge 96 NY 260). PERSONS IMPROPERI.Y RECEIVING MONEY BEFORE GIVING SECURITY — Attorney for guardian: satisfaction of judg- ment (Greenburg 210 NY 505, afg 160 AD rr. 41-43 GLEVENG-ER'8 RULES OF CIVIL PRACTICE 32 888, 144 NTS 1118); settlement of damages (Heiter 135 AD 13; 119 NYS 819). Execution: issued upon judgment recovered In action for personal injuries by infant thru guardian, before giving security, va- cated (Wileman 80 AD 53, 80 NYS 233). Porelgui t'estanrentaijr g°aardiaii: in pay- ment of life policy (Wuesthoffi 107 NY 680). Uotlier as eniiu:dian ad litem: in considera- tion of releasing claim for personal in- juries (Joyce 176 AD 538, 163 NYS 519). Sister as guardian, ad litem: in considera- tion of settlement of action for assault (Hart 131 AD 661, 116 NYS 193). AMOUNT OP JUDRMENT BECOVEBEB BY IMTEANT PAID INTO COURT, GUARD- IAN BEIN0 UNABIiE TO PURNISK SECURIT'S' — (Calmbecker 2,8 AbNC 156. 18 NYS 198). OMISSION TO REQUIRE BOND DOES NOT DEPRIVE COURT OP JURISDICTION— Acquired; (Reed 46 Hun 212). Eule 42. Duty of guardian ad litem. It shall be the duty of a ^ardian ad litem or special guardian to examine into the circumstances of the cause or matter so far as to enable him to protect the rights of the infant. It shall also he his duty to account for all moneys received by him and to invest the same according to the directions of the court and faithfully to execute his trust. EDITORIAI^ NOTES — Source: First sentence is General Rule of Practice 50, second sentence, part; last sentence is new, but see CCP § 2351, second sentence. General Rule 50 was formerly Equity Rule 97; Rule 55 of 1849; Rule 52 of 1852; Rule 61 of 1868; Rule 62 of 1871; Rule 62 of 1874; Rule 63 of 1877; Rule 60 of 1880; Rule 50 of 1884; Rule 60 of 1888; Rule 60 of 1896; Rule 50 of 1900; Rule 60 of 1910; Rule 50 of 1913. CCP § 2351 re- vised from pt 2, o 5, tit 2, § 14 of RS, L 1864, c 417, § 2, and L 1874, c 446, tit 2, §§ 7, 20. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. DUTV OP GUARDIAN — Examine: into foreclosure case to see if there be just ground of defense (Hill 4 AD 154, 38 NYS 641). Objection: to action against ward com- menced by person forbidden to institute it (Reed 46 Hun 212). ^Preparation for trial: of assault and bat- lery case brought against infant (Rich- aidson 3 NYS 396). Special duty: to bring ward's rights directly under consideration of chancellor (Knick- erbocker 2 Paige 304). ACTS VIOIiATXVK OP DUTY — Settlement: of ward's personal injury suit without order of court (Edsall 39 Barb 589). Use by special g'uardiau: of invalid claim held by him so as to put purchase.- of it from him into possession of "ward's lands (Spelman 74 NY 448). Rule 43. Compensation of guardian ad litem or special guardian. A guardian ad litem or special guardian shall be entitled to such compensation for his services as the court may deem reasonable. But no order allowing compensation shall be made except on an affidavit by such guardian, or, if the guardian be not an attorney, then on his affidavit and 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 case and, to the best of his ability, has made himself acquainted with the rights of the ward and that such guardian has taken all the steps necessary- for the pro- tection 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. // a guardian ad litem or special guardian shall have been appointed for an infant defendant who is not entitled to any money or property under the terms of the final judgment, such guardian may, nevertheless, receive such compensation as the court shall deem reason-able, which shall he paid by any party to the action or proceeding or out of the proceeds of any property which is the subject matter of the action, as the court shall direct. EDITORIAI^ NOTES — Source: First paragraph is General Rule of Practice 50, second sentence, last part and last sentence^ last paragraph is new. Formerly Equity Rule 97; Rule 65 of 1849; Rule 52 of 1858; Rule 62 of 1871; Rule 62 ' of 1874; Rule 53 of 1877; Rule 50 of 1880: Rule 50 of 1884; Rule 50 of 1888; Rule 60 of 1896; Rule 50 of 1900; Rule 50 of 1910; Rule 50 of 1913. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADIiINS printed in capitals. For illustration see Rule 1. COMPENSATION AI^X-OWED— Guardian ad litem: contesting probate of will unsuccessful (Tracy 18 AbNC 242); costs and expenses incurred in action (Leo- pold 2 Hilt 580, 10 AbP 40); defense of claim against infant for assault and bat- tery (Richardson 3 NYS 396); expendi- tures in support of child prior to appoint- ment (Hovell 10 Mis 546, 31 NTS 439); infant having no Interest in subject of litipration (•Walbridge 132 AD 33, 116 NYS 239); rendering no important or laborious service (*Holden 126 NY 689, 27 NE 106^); ?250 for representing infants in suit for damages caused by operation of railroad (Roberts 13 Mis 345, 33 NYS 685); $250 for putting in general answers, such action being unnecessary ('Downing 37 NY 380). Special guardian: appointed in proceedings to sell infant's real estate, $100 (Mathews 27 Hun 264); contest of will, unsuccess- ful (KcCue 'S RedfSur 336); substantial service previous to matter being trans- ferred to appellate court (Bull 6 NYS 565); for services during pendency of appellate proceedings, his functions having ceased with entry of surrogate's decree (*Hewitt 4 CivP 67, 65 How 187); $1000, altho un- successful in upholding views concerning serious questions involved (Tucker 29 Mis 728, 62 NYS 1021); $1000, upon ex parte 33 GUARDIANS AD LITEM AND SPECIAL GUARDIANS rr. 43,44 application ('Budlong 33 Hun 235); serv- ices in accounting proceeding, infants re- ceiving nothing out of wlilch compensa- tion could tie made payable (*0'Day 88 Mis 408, 150 NTS 425); $70 (Stevenson 150 NTS 423); $25 for services in probate con- troversy (Hewitt 4 CivP 57, 65 How 187). ruiTD ^ROM WSICH COIHFEXTSATION PAYABI^E — Accumulated fund 'belonerlnir to warQ; guardian ad litem in executor's accounting (Gott 7 Paige 521). Estate of ward: special guardian in exe- cutor's accounting (Farmers 49 AD 1. 63 NTS 227; Tucker 29 Mis 728, 62 NTS 1021). Pund: which may eventually all belong to others not chargeable with counsel fee of guardian ad litem (*Gott 7 Paige 621; ■•Union Ins Co 4 Paige 85). General estate: guardian ad litem appointed to represent infant party in action for executor's accounting ('Brinckerhoft 52 AD 256, 65 NTS 358); special guardian ap- pointed on court's own motion to repre- sent infant pa^ty to executor's accounting (♦Robinson 160 NT 448, 44 NE 4, afg 40 AD 30, 57 NTS 523). Interest of infant: in mortgage foreclosure surplus, chargeable with payment of extra counsel fees to guardian ad litem (Union Ins. 4 Paige 85). Proceeds going' to other parties: guardian ad litem ('N T L Ins Co 26 Mis 252, 56 NTS 741). Trust fund: guardian for ward having con- tingent and reversionary interest in share of one beneficiary ('Holden 126 NT 589, 27 NE 1063). PERSON'S NOT l^IABIiE FOR COMPENSA- TIOIT — Pather of infants: their interests not iden- tical with his (Thorn 39 SIR 30, 14 NTS 339). Successful plaintiff in foreclosure suit: guardian appearing for defendant (Hill 4 AD 154, 38 NTS 641). COSTS OP G'DARDIAHS AD IiITEIVI OP INFANT DEPENDANTS DECLARED IiIEN UPON RESPECTIVE SHARES — (Tibbits 7 Paige 204). Rule 44. Duty of person designated to receive summons in behalf of an infant or incompetent; compensation. It shall be the duty of a person designated by the court to receive a copy of the summons on behalf of an infant defendant, or of a defendant ivho by reason of habitual drunkenness or for any other reason is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent, to examine into the circumstances of the cause so far as to enable him to protect properly the rights of the infant or incompetent person and to look after the interests of such defendant at any stage of the action until and unless a guardian ad litem or special guardian shall be appointed. Such person shall receive the same compensation that a guardian ad litem would receive for a like service, to be fixed by the court. EDITORIAI^ NOTES— Source: New, adapted from General Rule of Practice 50. See preceding Rule. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADXiINE printed in capitals. For illustration see Rule 1. r. 45 GLEVENGEB'S RVLES OF CIVIL PBACTIOE 34 TITLE 8 SUMMONS AND THE SEEVICE THEREOF Rule 45. Requisites of summons. 46. Notice with summons demanding money judgment. 47. Notice with summons in matrimonial actions. 48. Form of supplemental summons.. 49. Papers to be filed in case of substituted service on resident defendant; when service complete. 50. Order for service of summons hy publication ; contents. 51. Time of publication or mailing service without the state; when service complete. 53. Papers to be filed on service by publication or without the state; notice to defendant. 53. Proof of service of summons. EBITORIAI^ NOTES— Civil Practice Act references: Summons gen- erally, CPA § 218; Supplemental summons, CPA § 219; Service of summons, CPA §§ 220, 224; Personal service of summons, CPA §§ 225-226, 228-229; Designation by resident of person upon whom summons may be served during his absence. CPA § 227; Order for substituted service of sum- mons, CPA § 230; Manner of making sub-, stituted service, CPA § 231; Order fori service of summons by publication, CPA § 232; Service without the state in lieu of publication, CPA § 233; Order for service of summons by publication, by whom made, CPA § 234; Personal service out of the state without order, CPA § 235. Rule 45. Beciuisites of summons. The summons must state the court in -wMeh the action is brought, the names of the parties, and, if in the supreme court, the countj' which the plaintiff designates as the place of trial. It must be subscribed with the name of the plaintiff's attorney and with his office address, specifying a place within the state where there is a post-office. If in a city, he must add the street and street number, if any, or other suitable designation of the particular locality. In addition to the foregoing requirements it must y name under whicli sued, the: not true name (Anderson 10 NYS 8); original name different (Cooper 45 Barb 9). Initials only: of Christian names mere ir- regularity (Grant 48 Supr 427). Misnomer of defendant: " Gderaa Carty." real name " Gustave de ma Carty " .('Moul- ton 29 Supr 470); "Jacob" real name "Joseph M" (*Schoelkopf 11 Mis 253 32 NYS 736); "John Horn," real name "John A. Horan " ('Anderson 10 NYS 8); "Patrick," real name "James" no statement in summons that name fic- titious or that real name unknown (*Fisher 11 Mis 575, 32 NYS 795); "Simon," real name "Samuel" ('Upham 14 CivP 27). Bei>resentative capacity: defendant sued in, named in summons only as Individual (♦Leonard 182 NY 4311). Surname: that of ancestors (Anderson 10 NYS 8). Trade name: of plaintiff, amendment proper (Bank of Havana 20 NY 355, afg 7 AbP 134, 16 How 97). Two names, defendant sued under: either where equally well known (Isaacs 33 StR 423, 11 NYS 423, afg 34 StR 758; Ander- son 10 NYS 8); that by which generally known, tho not true name (Anderson 10 NYS 8). Unknown owners described: words " if any " added, foreclosure suit (Abbott 98 NY 665, afg 20 WkD 344). Used by defendant: in signing note sued on (Farmers Nat Bk 9 CivP 212V Variance fatal: where summons described plaintiff as adnainistrator and complaint declares generally without description (Blanchard 8 How 83). "Wife of another defendant: describe as, foreclosure (*Weil 24 Hun 645, 1 CivP 133). COUNT7 FOB TBIAX BEQUIBSD — Ch.arg'e: demand by defendant proceeding of right (Faherty 43 Hun 432). Complaint: stating county different from that named in summons controls venue (Tolhurst 94 AD 439, 88 NYS 235; Gold- stein 73 AD 545, 77 NYS 956; Fisher 12 AD 602, 43 NTS 111), where discrepancy inadvertent and plaintiff's attorney moves promptly to correct error before adversary has acted on assumption that change was intentional (•Goldstein 73 AD 545, 77 NYS 956; *Pisher 12 AD 602, 77 NYS 111). Copy complaint: thru error, state county different from that named in summons and original complaint, venue is county named in summons (Bark 33 Mis 694, 68 NYS 1051). Desig'uaitlon: determines county in which action commenced (Benson 67 AD 319, 74 NYS 506). IVIandatory requirement: (Osborn 55 How 345). Omission: ground for setting aside summons (Tucci 94 Mis 317, 158 NYS 263; Osborn 55 How 345); mere irregularities, not juris- dictional defect (Thompson 24 Mis 513. S3 NYS 920); requires setting aside service absolutely ('Wallace 24 Hun 635). Kule applied: (Tolhurst 94 AD 439, 88 NYS 235; Rector 38 Hun 293). Service: in another county does not control venue (Benson 67 AD 319, 74 NTS 506). COUNTY POR TEIAI. SUmCIBNT— Albany county: (Sivaslian 166 NYS 535). City and county of New York: (Ward 10 AbNC 60). SUBSCRIFTIOH' BY ATTOBITSY BB- QUIBBD — Agent: of plaintiff cannot sign in name of plaintiff by such agent (Weir 3 How 397, 1 CodeR 105). Defect waived; where defendant served an- swer, amended answer, counterclaim, and bills of particulars and admitted service of notice of trial (Jaworower 164 NYS 516, afg 98 Mis 377, 162 NYS 1076). Plaintiif: may sign personally (Farm Loan & Tr Co 17 How 477, 9 AbP 61 prior rule; Blanchard 8 How 83, prior rule), not an attorney, subscribe in own name, summons void (Jaworower 98 Mis 377, 162 NTS 1075, afd 164 NTS 516). Bule appUed: (KafEenburgh 188 NT 49; Blanchard 8 How 83; German American Bk 11 CivP 452). SUBSCBIFTIOH BY ATTOBHBY SUFFI- CIENT — Another person: authorized by attorney, write name (Barnard 49 Barb 62). Clerk: sign name of employer (Koffenburgh 188 NT 49). Firm name: used by clerk of former firm of which one partner dead, and the other dis- barred (Koffenburgh 188 NT 49). Printed name: (Barnard 49 Barb 62; 2 AbNS 47, 32 How 97; Mayor 10 Daly 396; Mut Life Ins Co 10 AbP 260n; 'Farmers Loan & Tr Co 17 How 477, 9 AbP 61). Two attorneys: representing different co- plaintiffs ('Jones 48 Mis 172, 95 NTS 255). NAMUQ OP ATTOBNSY BBQUIBED — Omission on copy: served a mere irregularity where name appears on copy of complaint served therewith and on original summons (Hull 55 AD 419, 66 NTS 865). HAMS OF ATTORNEY SUFFICIENT — Firm name: used by clerk of former firm of which one partner dead and the other dis- barred ( 'Kaftenburgh 188 NT 49). OFFICE ADSBESS OF ATTORNEY RE- QUIREB — Indicates place; for service of papers (Feist 15 AD 495, 44 NTS 497). Rule applied: (German Amer Bank 11 CivP 452). OFFICE ADDRESS OP ATTORNEY SUF- FICIENT — " 25 No. Pearl St. Albany, N. Y.": (Sivaslian 166 NTS 535). FI^ACE WITHIN STATE WKERE THERE IS POST OFFICE — Albany: (Sivaslian 166 NTS 535). STREET AND STREET NUMBER BE- QUIREB — Omission irregularity; not jurisdistional de- fect (Sullivan 53 Mis 249, 103 NTS 177). Bule applied: (German Amer Bk 11 CivP 452). STREET AND STREET NUMBER SUF- FICIENT — "25 No. Pearl St.": (Sivasliam 166 NTS 535). FORM SUEPICIENT — Justice court suit: in which jurisdiction de- feated by claim of title not referred to ('See Royce 3 How 391, afd 7 Barb 80). Same form; in all civil actions (Van Clief 130 NT 571). Surplusage: does not invalidate, forclosure of mechanic's lien (Welde 10 CivP 214). i^an(tUAGe proper — EngUsh: (Alfonso 99 Mis 550, 165 NTS 1037). Italian: ('Alfonso 99 Mis 550, 165 NTS 1037). DIRECTION TO DEFENDANT REQUIRSD — Rule applied: (Blanchard 8 How 83). DEMAND FOR ANSWER REQUIRED — Rule applied: (Blanchard 8 How 83). DEMAND POR ANSWER SUFFICIENT — Designate agent of plaintiff: not an attorney, as person to be served ('Weir 3 How 397, 1 CodeR 105). Incorrect address of plaintiff: on whom service demanded ('Weir 3 How 397, 1 CodeR 105). TIME FOR ANSWER FBOPEB — Complaint not served with summons; serv- ice of answer within twenty days not re- quired (Remington 198 US 95). Six days: ('Schoffel 107 Mis 695, 177 NTS 844). rr. 45,46 OLEVENOER'S RULES OF CIVIL PRACTICE 36 Twenty days: (Second Ave R Co 58 Supr 172, 9 NYS 734), must be allowed (Schof- fel 107 Mis 695, 177 NYS 844). DATE REQUIRES — Conunencement of action: cannot antedate (Keene 81 AD 48, 80 NYS 859). Rule appUed: (Beck 116 Mis 80, 190 NYS 256). ASXEITDMEITT FERMISSIBI^E — Additional defendant: not named in com- plaint served therewith, named in sum- mons (Trow P & BB Co 16 CivP 120, 3 NYS 59). Condition imposed: on nermitting amend- ment after default judgment of summons not naming- court, that defendant have time to answer (James 5 How 241). Copy served: contained firmr in name of court, defendant not misled or prejudiced (Sivaslian 166 NYS 535). County for trial: not named (Thompson 24 Mis 513, 53 NYS 920; Wallace 24 Hun 635). Court not named: shown by complaint (Walker 4 How 154). Iieave of court required: (McCrane 3 Sand 736, 1 CodeR 157), changing county for trial (Wadsworth 18 AbNC 200). Ills pendens defective; because of discrep- ancy with date of summons ("Beck 116 Mis 80, 190 NYS 256). ITame of attorney: firm name signed to sum- monrs, individual name of one partner signed to other papers (Sluyter 15 Supr 673). Kame of party: add (Weil 24 Hun 645, 1 CivP 133); change to name acquired by female plaintiff through marriage (Merrian 61 How 377; Traver 3 Trans 203, 3 Keyes 497, 6 AbNS 46); correct mistake (Far- rington 52 AD 247, 65 NTS 432; Weil 24 Hun 645, 1 CivP 133), in name of defend- ant after judgment ('Schoelkoff 11 Mis 253, 32 NYS 736); strike out (Weil 24 Hun 645, 1 CivP 133), name of defendant named in summons and substitute names of per- sons not named or served (*Aaron 11 WkD 5^7); substitute Christian name of de- fendant for initial (Farmers Nat Bk 9 CivP 212); supply name of defendant, described as wife of another party, foreclosure (Weil 24 Hun 645, 1 CivP 133), designated as "& Son" (Bannerman 11 Daly 529); omitted from summons served at same time -with notice of no personal claim in which name appeared, foreclosure (Wiggins 58 How 376); trade name instead of indi- vidual name of plaintiff used (Bank of Havanna 20 NY 355, afg 7 AbP 134, 16 How 97). Time to answer: stated as -6 days instead of twenty (*Schoffel 107 Mis 695, 177 NYS 844). OBJECTION WArVED — S'ailure to name specific parties: by answer and delay in moving to set aside (Amsinck 12 WkD 573). COMPARED WITH — Municipal Court Code: § 19 (Trocci 94 Mis 317. 158 NYS 263). RUI.E CITED — But not appUed: (Littauer 177 NY 233; Haber 97 Mis 637, 162 NYS 328; George 41 NYS 211, 25 CivP 383). Rule 46. Notice with summons demanding money judgment. If an action he brought for the breach of an express contract to pay absolutely, or on a contingency, a sum or sums of money fixed by the terms of the contract, or capable of being ascer- tained therefrom by computation only; or on an express or implied contract to pay money received or disbursed, or for the value of property delivered, or for services rendered by, to, or for the use of, the defendant or a third person; and the complaint be not served with the summons, the plaintiff may serve with the summons a notice stating the sum of money for which judgment will 'be taken in case of default. EDITORIAIk HOTES — Source: stated by the Rules Committee to be "new," but see CCP §§ 419, 420. CCP § 420 read: "Judgment may be taken without application to the court, where the com- plaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or im- plied cQntract to pay money received or disbursed, or the value of property de- livered, or of services rendered by, to, or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only." CCP § 419 read: "A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the sum- mons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by a notice is served with a summons, stat- ing the sum of money for which judgment will be taken, and the case is one embraced in the next section." Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Entry of de- fault judgment by the clerk, CPA § 48'5; Proof to be filed with clerk by plaintiff upon default, CPA § 486. Star (*) means read Not into BCEADIiINE printed in capitals. For illustration see Rule 1. CONTRACT TO PAT MONEV CONTIN- GENTLY — Official t>ond: (County of Sullivan 102 Mis 348, 168 NYS 923). SUM FIXED BY TERMS OP CONTRACT— Delay in delivery: damages liquidated by contract at $10 per day ("See Scribner 4 NYS 918). SUM CAPABCE OP BEING ASCERTAINED PROM CONTRACT BY COMPUTATION — Delay in delivery: damages liquidated by contract at ?10 per day ('See Scribner 4 NYS 918). IMFZiIED CONTRACT TO PAY MONEY RE- CEIVED — Annual liquor license: action to recover pro- portion of fee covering unexpired term (Augner 14 AD 461, 43 NYS 803). IMPI.IED CONTRACT TO PAY MONEY DISBURSED — Surety on Uquor bond: sue principal for in- demnity, judgment recovered against surety for breach (See City Tr Co 182 NY 285, 74 NB 948). COMPI^AINT SERVED VTTTa SUMMONS — Attachment: papers including complaint, served three days after summons ('Crouse 61 Hun 46, -15 NYS 369). NOTICE AUTHORIZED — Action at law: for recovery of sum of money only (Hansen 159 AD 801, 144 NTS 839). Corporate trustees: action to enforce lia- bility for failure to file annual report (♦Gadsden 38 Hun 548). Neglierence action: ('Hoag 164 NTS 529 dis op). 37 SUMMONS AND THE SERVICE THEREOF rr. 46-49 Partnership accounting' action: ('See Adams 42 Hun 278). NOTICE NECESSARY — To authorize: default judgment (Sharp 15 AD 445, 44 NYS 451). SUM FOR WHICH JUDGMENT TAKEN SUPPICIENT— Interest from date stated: to be added to sum stated (DeWitt 3 How 280, 1 CodeR 2-5, 6 NY Leg Obs 314). NOTICE Z.IMITS RECOVERS — Ex parte order: increasing- amount improper (Cassidy 15 CivP 220, 3 NYS 258). In case of default: does not conclude as to cause of action which may be stated in complaint (Sharp 15 AD 445, 44 NYS 451). AFFl^ICATION TO COURT NECESSART — Equity action: (Albright 170 AD 70, 157 NYS 79). Unliquidated damagres; action for (Schar- mann 49 AD 278, 63 NYS 267), COMPARE WITH — Buffalo municipal court act: § 7 (Lazzarone 2 Mis 200, 21 NYS 267). RUI.E CITES — But not applied: (Mishkind-Feinberg Realty Co 189 NY 402; 12 NYS 138 note; Reming- ton 198 US 95). Rule 47. Notice with summons in matrimonial actions. In an action to annul a marriage or for a divorce or for separation, if the complaint be not persomMly served with the summons, the summons shall have legibly written or printed on the face thereof, the words : "Action to annul a marriage ", "Action for a divorce ", "Action for a separation ", as the case may be. EDITORIAX NOTES — Source: new, so stated by the Rules Com- mittee, but see CPA § 1167 (as revised from CCP § 1774, first two sentences). CCP § 1167 read: " In an action * * * a final judgment shall not be rendered * • * un- less either the summons and a copy of the complaint were personally served upon the defendant; or the copy of the sum- mons delivered to the defendant, upon per- sonal service of the summons, or delivered to him without the state, or published, pur- suant to an order for that purpose * * * contains the following words, or words to the same effect, legibly written, or printed upon the face thereof, to-wit: 'Action to annul a marriage'; 'Action for a divorce ' or 'Action for a separation ' " etc. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Notice of na- ture of matrimonial action, when required and proof thereof, CPA § 1167. Star (*) means read Not into HEADXiINE printed in capitals. For illustration see Rule 1. OBJECT OP BUKE — Notify defendant: of nature of the action against him (Braham 91 Mis 151, 154 NYS 1044). INDORSEMENT ON SUMMONS RE- QUEUED — Personal service: of summons and com- plaint (■'Braham 91 Mis 151, 154 NYS 1044). INDORSEMENT ON SUMMONS SUPPI- CIENT — "Action for divorce": when action for separation (Rudolph 13 NYS 81). Amendment allowed: under CCP § 723 (Sears 9 CivP 432). RUIiE CITED — But not applied: (O'Dea 101 NY 23). To part: of CCP § 1774 omitted from Rule 47 (VPatkins 197 AD 489, 189 NYS 860). EDITORIAIi NOTES — Source: CCP § 453, first sentence, last part. Text in italics is new matter, inserted June 17, 1921. Rule 48. Form of supplemental summons. If a supplemental summons be issued, it must be in the same form as an original summons, except that in the body thereof it must require the defendant to answer the original or the amended complaint and the supplemental complaint or either of them as the case requires. Civil Practice Act references: Supplemental summons, CPA § 219. Star (■•) means read Not into HEADIiINE printed in capitals. For illustration see Rule 1. Rule 49. Papers to be filed in case of substituted service on resident defendant; when service complete. An order for substituted service, other than by publication, of a summons within the state on a resident, a domestic corporation or a joint stock or other unincorporated association, and the papers on which it was granted, must be filed and the service made within ten days after the order is granted; otherwise the order becomes inoperative. On filing proof of such service, the summons is deemed served and the same proceedings may be taken thereupon as if it had been served by publication pursuant to an order for that purpose. EDITORIAL NOTES — Source: CCP § 435, first part, and CCP § 437. CCP § 435 revised from L 1853, c 511, and CCP § 437 revised from L 1853, c 511. CCP § 43'5, first part, read: " * * * an order for the service thereof upon a defendant, whether a domestic corporation, other than a municipal corporation, a joint-stock or other unincorporated association or a natural person," etc. CCP § 437 read: " • • * On filing an afiidavit, showing service according to the order the sum- mons is deemed served," etc. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Order for sub- stituted service of summons in certain cases, CPA § 230; Manner of making sub- stituted service, CPA § 231. Star (•) means read Not into HEADIIINE in capitals. For illustration see Rule 1. SE3SVICE TIM3X.Y — Iiimitations : summons in hands of sheriff before expiration of period, substituted service after expiration (Clare 122 NY 263, Clark 13 CivP 278). Within ten days: (Clare 122 NY 263). PAPERS OSX WHICH APFX,ICATION GRANTED TO BE PIUSD — Necessary: to make service complete (Flana- gan 13 StR 432). On day of service: (Flanagan 13 StR 432). PI.ACE OP PIIiING- PROPER — ClerS's office: (Flanagan 13 StR 432). rr. 49,50 OLEVENGER'S RVLE8 OF CIVIL PRACTICE 38 TTLJXra TOICEI.Y— After day of service: papers on which order granted ('Flanagan 13 StR 432). PROOF or SEBTICE TO BE FXIiED— Default: defendant not In until expiration of 6 days thereafter (Smith 6 CivP 366). Sule applied: (Handler 185 NYS 241). PROOF OF SERVICE SUFFICIENT — Affidavit of service: not filed ('Sandier 185 NYS 241). Wrapper: in which papers said to have been mailed produced, stamps thereon not can- celed, no postofflce marks thereon ('Hand- ler 185 NYS 241). SUBSTITTTTED SERVICE EQUIVAI.ENT TO SERVICE BV FXTBXiICATION — Attachment: to sustain (*Bogart 26 Hun 463). Rule applied: (Clare 122 NY 263, afg 211 AbNC 173; Bentz 81 .Mis 364, 142 NYS 193; Orr 16 Hun 625; Clark 13 CivP 278; Smith 6 CivP 366; 21 AbNC 179n). SUBSTITUTED SERVICE EQUrVAIENT TO FERSQNAi; SERVICE — Under code: Civil Procedure ('Clark M CivP 278; Procedure Clark 13 CivP 278). With respect to right: to enter judgment against Joint-debtors plaintiff must await expiration of time to answer of last served (Orr 1'6 Hun 625). JURISDICTION OF PERSON OF DEFEND- ANT ACQUIRED— Infant defendan*: properly brought into foreclosure action by such service (Wood 43 Hun 328). When substituted service complete; (Lauder 148 AD 739, 133 NYS 340). INAPPIICABIE — Publication: service by (Whiton 23 Mis 299, 50 NYS 899). Rule 50. Order for service of summons by publication; contents. The order for service of a summons by publication must direct that such service be made by publica- tion thereof in two newspapers, in the English language, designated in the order as most likely to give notice to the defendant to be served, for a specified time, not less than once in each of six successive weeks. It must also contain either a direction that on or before the day of the first publication the plaintiff deposit in a post-office, or in any post-office box regularly maintained by the government of the United States, one or more sets of copies of the summons, complaint and order, and of the notice required by rule fifty-two, each set properly inclosed in a postpaid wrapper addressed to the defendant to be served, and if the defendant be an infant, addressed to his father, mother or guardian or a person having the care, or control of him or icith whom he resides at a place specified in the order; or a statement that the court or judge, being satisfied by the affidavits on which the order was granted that with reasonable diligence the plaintiff cannot ascertain a place or places where such defendant, or any such per- son, probably would receive matter transmitted through the post-office, dispenses with the deposit of any papers therein. When it appears by the papers on which the order was granted that the defendant is within a country with which the United States of America is at vyar, or in a place with which, by reason of the existence of a state of war, the United States of America does not maintain postal communication, the order may dispense with the mailing of any papers to such defendant, and, in Ueu thereof, shall direct that such papers be mailed to such officer as may have been appointed by the president of the United States of America to take possession of the property of alien enemies, directed to him at Washington, District of Columbia, on behalf of such defendant. EDITORIAIi NOTES — Source: CCP § 440, except first sentence, as amended by L, 1879, c 542, L 1889, c 195, Li 1914, c 346, L 1917, c .98, L 1918, o 309, as revised from CP § 13'5. The clause " or in any post-office box regularly maintained by the government of the United States " is taken from CCP § 797, subdivision 1. CCP § 440 read: "The order may be made by the court or by a judge thereof or the county judge of the county where the ac- tion is tried. It must direct that the serv- ice of the summons, upon the defendant named or described in the order, be made by publication thereof in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six succes- sive weeks. It must also contain, either a direction that on or before the day of the first publication, the plaintiff deposit in a post-office branch, post-office or post- office station, one or more sets of copies of the summons, complaint and order, each contained in a securely closed post-paid wrapper, directed to the defendant, at a place specified in the order, or a statement that the court or judge, be satisfied, by the affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence, ascertain a place or places, where the defendant would probably receive matter transmitted through the post oflfice, dispenses with the deposit of any papers therein," etc. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act reference: Order for serv- ice of summons by publication, CPA § 232; Order for service of summons by publica- tion, by whom made, CPA § 234. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. ORDER FOR PUBI.ICATION PROPERTY HADE BV — Judg'e: court order a nullity (Schumalcer 12 WkD 99, afg 2 LawB 94). ORDER FOR PUBI^ICATION PROPERIiY G-RANTED — Failure to explain: failure to seek address from person through whom mail previbusly forwarded ('Murphy 131 AD 759, 116 NYS 228). Incorrect street address: stated in moving papers CDennin 83 Mis 523. 145 NYS 354), mailing to, not ground for vacating order (Dennin 83 Mis 523, 145 NYS 354). Refusal to disclose address: by postmaster at former address only fact ('Murphy 131 AD 759, 116 NYS 228). ORDER FOR PUBI.ICATION SUFFI- CIENT — Su]nm.ons: should recite or refer to as an- nexed (Rawdon 3 How 416); should show existence and Identify (Rawdon 3 How 416) 39 SUMMONS AND THE SERVWE TEEREOP r. 50 DUUiCTIOIT FOR FUBI^ICATION ITECES- SABY — Two aewspapers: (Home Ins. Co 30i Hun 405). DESIGNATIOIT OF NEWSFAFEBS SUF- FICIENT — Name! (Green 20 Hun 15). BESiaiTATIOIT OF NEWSFAFEBS FROFER — Paper aeslEruated: by laws 1885 oh 262 for publication of public notices in city of Albany, action against foreign corpora- tion, fail to designate (Lanier 9 ClvP 161). NEWSFAFERS ItlOST IiIKEI^Y TO CIVE NOTICE TO DEFENDANT — Designated 1>y law; for publication of sum- mons (Green 20 Hun 15). Recital tn order: to such effect not neces- sary (Green 20 Hun 15; Schroeder 17 WkD 574). FIXINO- FERIOD OF FTTBI^ICATION FROFER — Six successive weeks: once a week (Brooks 190 AD 564, 180 NYS 371; Roller 176 US 398), not less than (Wright 224 NY 2,93; Market Nat Bk 89 NY 397). DIRECTION FOR I1IAII.ING NECESSARV — Personal service: outside state Intended (Kennedy 11 NYS 661). ' Residence anknown: and cannot be ascer- tained with reasonable diligence (*Spaus 2 NYS 189; 'Walker 13 WkD 331). Rale applied: (Eleventh Ward Bank 43 AD 178, 59 NYS 314; Lorlng 38 Hun 152, 3 HowNS 121, 8 CivP 304; Home Ins Co 30 Hun 405; McCool 14 Hun 73: Towsley 32 Barb 604; Warren 17 How 106, 9 AbP 66). Setting aside order: proper where direction omitted the personal service outside state effected (Strong 2 LawB 10). Unless shown: that defendant's residence unknown and cannot be ascertained with reasonable diligence (Cook 19 NY" 412. afg 8 AbP 170, 17 How 134; Jewitt 2 NYS 250; Hallett 13 How 43). DIRECTION FOR MAII^ING- SUFFICIENT — Name of defendant oxoitted: from clause directing mailing address stated, mailing ordered, and name shown elsewhere in order (Brooke 44 Hun 554). "Notice of object of action"; direction to mall Instead of " complaint," Irregularity merely where copy complaint actually mailed, foreclosure (Mishklnd-Feinberg Realty Co 189 NY 402, afg 111 AD 578, 96 NYS 1136). Place for deposits: general post office in New York county (Korn 201 NY 404, afg 141 AD 927, 126 NYSw 1134); "post office at New York" (Gay 136 AD 809, 121 NTS 726); " postofflce in the city of Brooklyn" (Littlejohn 34 AD 185, 54 NYS 536); post office not specified ('Eleventh Ward Bk 43 AD 78. 59 NYS 314; 'McCool 14 Hun 73; •VerPlanck 31 Mis 54, 64 NYS 545; 'Walter 19 AbNC 406, 11 StR 274). Three defendants named: same address, broad enough to afithorize one set to each, as was done (Littlejohn 34 AD 185, 54 NYS 536). Time for mailiner: lixed as within three months from date of order ('McCool 14 Hun 73); not fixed as on or before first day of publication ('Eleventh Ward Bk 43 AD 178, 59 NYS 314; 'McCool 14 Hun 73). DIRECTION FOR MAIIiINO' AMENDABI^E — Substitute "complaint": for "notice of ob- ject of action " in direction for mailing (Mlshkind-Feinberg Realty Co 189 NY 402, afg 111 AD 578, 96 NYS 1135). AI^TERNATIVE DIRECTION FOR FER- SONAI^ SERVICE IIOFROFEB — Invalidates order: (Godfree 166 AD 694, 152 NYS 257). Surplusage: does not invalidate order (Ban- fleld Co 184 AD 618, 172 NYS 377; Mar- rone 92 Mis 602, 156 NYS 280). AXiTERNATIVE DIRECTIONS FOR PURIFI- CATION OB FERSONAIF SEBTICE PROPER— RUIFE PRIOR TO 1914— Necessary to validity of order: (Mercer 1 CivP 144 note). One method only provided: personal service outside state, order valid (Field 131 NY 184, overruling Ritten 16 Hun 454; 'Piper 5 LawB 31). Personal service, direction for: necessary only when plaintiff desires so to serve (Weil 24 Hun 645); omission Improper (Brooke 44 Hun 654), but does not invali- date order (Hatfield 71 Hun 51, 23 CivP 195, 24 NYS 596; O'Nell 30 Hun 204), when service made by publication (Well 24 Hun 645). Publication, omission of direction for: in- validates order (Berford 55 Supr 516); warrants vacation of order (Buford 18 StR 400, 2 NYS 699). Required by srtJatute; (Godfree 166 AD 6!94, 152 NYS 257; Taylor 66 Mis 74, 122 NYS 757). Rule applied: (Mishkind-Pelnberg Realty Co 189 NY 402, afg 111 AD 578, 96 NYS 1136; Crouter 17 NYS 758). Separate orders; for each form of service permissible (See O'Nlel 30 Hun 204). ORDER FOR PERSONAI. SERVICE SUF- FICIENT — Clerical error ini Christian name: "Albert" for "Alfred," correct name In affidavits and in papers served, proper person served, service effective (McCully 66 How 468). Failure to require service of order: with summons and complaint ('Ludden 14 AD 397, 43 NTS 908). Officer of foreign corporation: on whom service outside state to be made not desig- nated, order valid, service on secretary sufficient (Morrison 13 CivP 233). FUBI.ICATION AUTHORIZED — Death of plaintiff: before publication com- plete, same order available to authorize publication after substitution of executor (Reilly 130 NY 625, afg 55 Hun 465). FUBIiICATION NECESSAR'S' — Personal service: outside state effected ('Matthews 12 NYS 74, 35 StR 269). FUBI.ICATION SUFFICIENT — City in which attorney's office located: not stated in summons published which stated street address and that complaint filed in city of New York (Van Wyok 11 AbP 473, 20 How 222, afg 39 How 392). Death of plaintiff after publication com- menced: continue publication to termina- tion of six weeks period ('Reilly 130 NY 625, afg 55 Hun 465); publication com- menced de novo after substitution of exe- cutor and continued for full six weeks period thereafter (Reilly 130 NY 625, afg 55 Hun 465). Different summons: than that directed by order to toe published, require appearance and answer in required six instead of twenty days ('VonRhade 2 T&C 491). language: English (Alfonscf 99 Mis 550, 165 NYS 1037); Italian ('Alfonso 99 Mis 550, 165 NYS 1037). IFlteral and exact copy: of summons in every respect not requisite (VanWvck 39 How 392, afg 11 AbP 473, 20 How 222). Name of defendant omitted from summons as published: jurisdiction acquired as to other defendants named (Brenen 7 AD 79, 39 NYS 975); misnomer of defendant in accompanying notice ('Bowler 46 AD 309, 61 NYS 686), no jurisdiction acquired as to such defendant ('Bowler 46 AD 309, 61 NYS 686). Newspaper: other than that directed by court tho published In same place ('Bris- bane 3 How 109). Once a week for six successive weeks: (Crouter 17 NYS 758); failure so to pub- lish jurisdictional defect (Waters 7 Mis 519, 27 NYS 1004). Six publications: (Young 56 StR 92, 25 NYS 875, 73 Hun 179). State in which action, brought: not desie- nated ('Titus 8 AbP 177, 16 How 371). rr. 50,51 GLEVENOER'S RULES OF CIVIL PRACTICE ■10 Su1>stantial compliance: with requirements (Brooke 44 Hun 554). Sa1)3tantiaU7 correct copy: of summons In all material particulars siifflcient (Van Wyck 39 How 392, afg 11 AbP 473, 20 How 222). TMrty-flve days: computed by excluding first and Including last publication, six publica- tions at weekly intervals (Brooks 190 AD 564, 180 NTS 371). Two newspapers: (Crouter 17 NTS 758). ■WEEKIi-ir FUBI.ICATIOHS PROPER — Different days: of week (See Wood 100 NY 109), provided once in each week (See Doheny 75 AD 47, 77 NYS 959). Same day of week: publications need not be on, provided once in each period from Sun- day to Saturday (Reed 171 AD 21, 156 NYS 944). Two in one week: none in following week (•Doheny 75 AD 47, 77 NYS 959). VTeek: proper time between midnight Saturday and midnight succeeding Satur- day (Wright 224 NY -293); term applied to any period of seven successive days (Wright 224 NY 293). MAII^IITa NECIiSSAB'ir— Copy of order: (Eleventh Ward Bank 43 AD 178, -59 NTS 314). Directed 'by order: (Hallett 13 How 43). Personal service; without state effected (•Matthews 12 NYS 74, 35 StR 269; 'Mc- Cully 66 How 468). Rule applied: (Herman 114 Mis 345, 186 NYS 376; Roller 176 US 398). MAII.IN'C!' FBOFERIi-X- DISFEITSED WITS — Afadavit that address unknown: and not ascertainable by reasonable diligence: may be made by plaintiff (Waffle 53 Barb 517, 35 How 356); only proper form of proof (Waffle 63 Barb S17, 35 How 356). £asis of conTiction; that address unknown and not ascertainable by reasonable dili- gence not stated by order to be affidavits (Green 20 Hun 15). Return of sheriff: of inability to find or serve defendant not permissible form of proof that address unknown and not as- certainable by reasonable diligence, even to supplement affidavit (Waffle 53 Barb 517, 35 How 356). Satisfaction of jndg'e: that address unknown and cannot be ascertained with reasonable diligence should be recited (McCool 14 Hun 73). PAPER TO BE MAUiED — Order: copy of (Johenning 1 CivP 144 note), as well as copies of summons and com- plaint (McCool 14 Hun 73). Sununons, complaint and order: copies (Rol- ler 176 US 398). MAIXiIHTG' STTPPICXENT — Infants: need not be sent to any other per- son (Home Ins Co 30 Hun 405, prior rule); personal service on parent or guardian un- necessary (Home Ins Co 30 Hun 405 prior rule). MAILING TIMEIiY — After first day of publication: ('McCool 14 Hun 73). Reasonable time: (Smyth 4 LawB 60). ADDRESS TO DEFEM'DAM'T NECESSARY — Rule applied: (Cook 19 NY 412, afg 8 AbP 170, 17 How 134; Warren 17 How 106, 9 AbP 66). ADDRESS TO DEFENDANT SXTFFICIENT — Affidavit: showing that defendant resides at Marion, Washington County, Iowa, order specifying "Washington, Iowa" ('Fetes 8 NYS 294). " Caiiro, Egypt ": (Littlejohn 34 AD 185, 54 NYS 536). Former residence: place of, present resi- Sence unknown and cannot be ascertained with reasonable diligence (Spaus 2 NYS 189). Infant over fourteen: address to personally (Loring 38 Hun 152, 3 HowNS 121, 8 CivP 304). Place: different from that specified in order, no showing of residence at place of address (•Smith 69 NY 600); specified in order must be one shown by alRdavit to be resi- dence of defendant or place at which he would probably receive matter transmitted by mail (Fetes 8 NYS 294); where probably receive matter transmitted through mail (Loring 38 Hun 152, 3 HowNS 121, 8 CivP 304). Union Club, Berlin: order direct mailing to Berlin, Germany (VonRhade 2 T&C 491). FIiACE OF lVLAIX.IHGr PEOPEB — Branch post office: (Korn 201 NY 404, afg 141 AD 947, 126 NYS 1134). letter box: maintained by government in office building (*Berman 114 Mis 345, 186 NYS 376 prior rule; •Schwartz 113 Mis 444, 185 NYS 659 prior rule). Mail chute: in office building, order direct- ing deposit in general post office ('Korn 201 NY 404, afg 141 AD 927, 126 NYS 1134). Post box: maintained by government in office building ('Gay 136 AD 809, 121 NYS 726 prior rule). Station of post office: (VonDerHeyde 174 AD 390, 161 NYS 780). Substation of post office: (Berman 114 Mis 345, 186 NYS 376). RECEIPT OF IVL&II. MATTER FRESTnOED— Proper address and postage paid: (Miskind- Peinberg Realty Co 189 NY 402, afg 111 AD 578, 96 NYS 1136). FESSONAI^ SERVICE OUTSIDE STATE SUFFICIENT — Copy of order: must be served with sum- mons (Ludden 14 AD 397. 43 NYS 908). FUBi;iCATION AND MAHiING — Unnecessary: (Abrams 8 AbP 123). COMPARED WITH — Surrogates Court Act: § 58 (Wright 224 NY 293; Koch 19 CivP 165, 12 NTS 94). RUI^E CITED — But not appUed: (Taylor 66 Mis 74, 122 NTS 757; Gray 2 Mis 260, 21 NYS 967; Peeling 1-61 NYS 963; Bingham 3 HowNS 167; Thistle 66 How 472, 5 CivP 43). INAPPi;iCABI^E — Sale of decedent's real estate; proceeding for (Reed 171 AD 21, 156 NYS 944). Surrogate's court; citation in (Wright 183 AD 266, 171 NYS 123). Rule 51. Time of publication or making service without the state; when service complete. The first publication of a summons in each newspaper designated in the order therefor, or personal service on the defendant without the state in lieu thereof, must be made within three months after the order is granted. For the purpose of reckoning the time within which the defendant must appear or answer, sei-vice by pub- lication is complete on the forty-second day after the day of first publication. Service without the state in lieu of publication is complete ten days after proof thereof is filed. EDITORIAI^ NOTES — Source; All except last sentence, is CCP § 441, amended; last sentence is CCP § 443, subdivision 4. CCP § 441 revised from CP §§ 135, 137, as amended by D 1877, c 416, L, 1914, c 346. CCP § 443, as amended by Li. 1877, c 416, L 1914, c 346. CCP § 441, second sentence, read: "For the purpose of reckoning the time within which the de- fendant must appear or answer, service by publication is complete upon the day of the last publication, pursuant to the order." Text in italics is new matter, inserted June 17, 1921. 41 SUMMONS AND TEE SERVICE THEREOF rr. 51,52 Civil Practice Act references! Order for service of summons by publication, CPA § 232; Service without the state in lieu of publication, CPA § 233. Star (*) means read Not into HSADI^INB in capitals. For illustration see Rule 1. PUBIiICATION COMMEITCEII T£3V[EIi7 — Before: order of publication granted (*HaI- lett 13 How 43). Iiast day: published in one paper only, first publication in other paper day following-, attachment vacated (Taylor 76 NY 599). More than three months: after order ('Mo- jarrieta 80 NT 547). Mnst he within three months: after order granted (Ludwig 18 NYS 69). New order: may be obtained after first abandoned by not commencing publication in time (Mojarrieta 80 NY 547). SERVICE BV FUBIiICATION CDlVIFZiETE — Death of plaintiff before veriod expired: publication continued for balance of period (•Rellly 130 NY 625, afg 56 Hun 465). Expiration of time prescribed for publica- tion: not until (Tomlinson 6 How 199; Abraham 8 AbP 123); reckoning from first publication (Skinner 9 NYS 60). Porty-two aays: after first publication (Waters 7 Mis 519, 27 NYS 1004; Brod 3 AbNS 3-96), in paper in which publication last commenced where publication in both papers not simultaneous (Herbert 6 Lans 493), not until, tho six publications at weekly intervals in less time (Richardson 23 How 516). Jurisdiction: of defendant not acquired until (Paget 17 CivP 234, 6 NYS 386). last publication: day of (Wright 224 NT 293; Brooks 190 AD 564; 180 NYS 371; Denton 40 Mis 326, 81 NYS 1031, affd 86 AD 3219, 83 NYS 778), return of defendant to state before does not render personal service necessary (Duche 18 AbNC 358). Six weeks after first pu1>licatlon; not until (Market Nat Bank 89 NY 397; Koch 19 CivP 165, 12 NYS 94). FERSONAXi SERVICE THaEKIT— Must be within three months: after order granted (Ludwig 18 NYS 69). Sunday last day: service day following, preserve attachment (Gribbon 93 NY 93). PERSONAI^ SERVICE COMPIiETE — Six full weeks: from time of service, prior rule (Crouter 133 NY 55), but personal service within state authorized judgment by default twenty-onet days thereafter, tho time to answer under service without state not yet expired (United Verde Cop- per Co 20 AbNC 57). Ten days: after proof thereof filed (Kelly 189 NYS 629). Time prescribed for publication; expiration thereafter, prior rule (Crouter 1"33 NY 55; Crouter 17 NYS 758; Skinner 9 NYS 60; Tomlinson 6 How 199); not until, prior rule (Market Nat Bk 89 NY 397; Brooklyn Trust Co 48 NY 84; Kerner 15 AbNS 96; Tomlinson 6 How 199). DEPENDANT ENTITI.ED TO DEMAND COPY' OP COMFIiAINT — Copy m.ailed: appearance and demand before service by publication complete (Van Zandt 23 AbNC 328). COMPARED WITH — Surrogates Court Act; § 59 (Wright 224 NY 293). RUI.E CITED— But not applied! (Bowler 46 AD 309, 61 NYS 686; Marrone 92 Mis 602 156 NYS 280; Hope 119 NYS 713; Mace 8 CivP 200). INAPPI.ICABI.E — Sale of decedent's land: proceeding for (Denton 40 Mis 326, 81 NYS 1031, afd 86 AD 329, 83 NYS 778). Rule 52. Papers to be filed on service by publication or without the state; notice to defendant. // service be made by publication, or ivithout the state in lieu thereof, the summons, complaint and order and the papers on which the order was made must be filed with the clerk on or before the day of the first publication or the day of such personal service. A notice subscribed by the plaintiff's attorney and directed only to the defendant or defendants thus to be served, substantially in the following form, the blanks being properly filled, must be subjoined to and published -with the summons: " To : The foregoing summons is served upon you by publication pursuant to an order of " (naming the judge and his official title), " dated the day of , 19 , and filed with the complaint in the office of the clerk of at ." // service be made without the state under an order for publication of the summons, a notice substantially in the above form must be served with the summons, except that the words " without the state of New York " shall be substituted for the words " by j)ublication." If the action be brought to recover a judgment affecting the title to, or the possession, use or enjoyment of, real property, the notice shall also briefly state the object of the action and give a brief description of the property. EDITORIAl^ NOTES— Source: first two paragraphs are CCP § 442; third paragraph is CCP § 443, subdivision 1; last paragraph is CCP § 1541, made gen- eral. CCP § 442 revised from part of CP §135. CCP § 443, amended by L. 1877, c 416, L 1914, c 346. CCP § 1541 revised from 2 R,S 317, pt 3, c 5-, tit 3, § 12. Text in italics Is new matter, inserted June 17, 1921. Civil Practice Act references: Order for service of summons by publication, CPA § 232; Service without the state in lieu-vof publication, CPA § 233. Star (') means read Not into HEADLINE in capitals. For illustration see Rule 1. FTLlNd REQUIRED- Jurisdictional! (Pink 47 Mis 247, 95 NTS 872; Whiton 23 Mis 299. 50 NYS 899). PAPERS WHICH MUST BE PII^ED — Complaint: (Fink 47 Mis 247, 95 NYS 872; Kendall 14 How 380, 12 NYS 80 note). Order: (Pink 109 AD 718, 96 NYS 543; Fink 47 Mis 247, 95 NTS 872). Papers: on which order made (Pink 109 AD 718, 9.6 NTS 543; Fink 47 Mis 247, 95 NTS 872). Summons; (Fink 47 Mis 247, 95 NTS 872), copy filed and copy served must be the same (Bowler 46 AD 309, 61 NYS 686). PX,ACE OP PrLING' PROPER — County clerk's office: (Pink 109 AD 718, 96 NTS- 543); in which venue laid (Fink 109 AD 718, 96 NTS 543). rr. 52,53 CLEVENGER'S RULES OF CIVIL PRACTICE 42 FIi;iNa SVTTICIBTSIT— Olerk of Special Term, Part 2: New York County, deliver to with intent to file (Fink 109 AD 718, 96 NYS 543; 'Fink 47 Mis 247, 95 NYS 872). Entry of order: of publication not necessary (Fink 109 AD 718, 96 NYS 543). Kaac pro tunc order: for filing proper where deputy clerk to whom papers delivered failed to file them (Fink 109 AD 718, 96 NYS 543- 'Fink 47 Mis 247, 95 NYS 872). Papers retained Tjy deputy clerk; to whom delivered instead of actually filed (Fink 109 AD 718, 96 NYS 543). FII.UrCr TIMEIY— Pirst p"uli)lioation: after, defect fatal (•Whi- ten 23 Mis 299, 50 NYS 899); day of, must be on or before (Fink 47 Mis 247, 95 NYS 875); must be before (Kendall 14 How 380, 12 NYS 80 note). Mailing': after, proceedings not invalidated (Silleck 2 AbNS 57). FUBI^ICATIOIT OP NOTICE BEQUIRED— Omission: jurisdictional defect (Conklin 176 AD 572, 163 NYS 570). Bnle applied: (Hollander 167 AD 217. 152 NYS 647; Doheny 75 AD 47, 77 NYS 95'9; McCully 66 How 468). SERVICE OF NOTICE WITH SUMMOM'S BEQUIBED — Jurisdictional: (Conklin 176 AD 572, 163 NYS 570; Hollander 167 AD 217, 152 NYS 647). Nunc pro tunc fiUng': cannot cure omission (Conklin 176 AD 572, 163 NYS 570). Personal service outside state: only in case of (LaFarge 4 LawB 36). Rule appUed: (Ludden 14 AD 397, 43 NYS 908). PROOF OP SERVICE OP NOTICE WITH STTmiKIONS SUFFICIENT — Positive statements: in affidavits opposed by denials on information and belief and alle- gation that notice not on file with clerk (Wessels 142 NY 212, 36 NE 883). STTBSCRIFTION BV ATTORNEY RE. QUIRES — Omission: not jurisdictional defect (Orvis 64 How 71, 2 CivP 3-14, 4 LawB 93). DIRECTION OF NOTICE REQUIRED — Omission: not fatal defect where receipt of copy summons and complaint sent by mail acknowledged (Close 139 AD 175, 123 NYS 749). Omissiou of name of defendant: to be served by publication, name appeared elsewhere, formal defect only, not jurisdictional (Loring 38 Hun 152, 3 HowNS 121, 8 CivP 304). REFERENCE TO ORDER REQUIRED — Rule applied: (Heidelberger 196 AD 626, 187 NYS 864; Orvis 64 How 71, 2 CivP 314, 4 LawB 93). REFERENCE TO ORDER SUFFICIENT— Day of m.ontIi: on which made not stated, defect not jurisdictional (•Orvis 64 How 71, 2 CivP 314, 4 LawB 93). Service of copy of order: with summons not required (Heidelberger 196 AD 626, 187 NYS 864). STATEMENT OP DATE OP ORDER RE- QUIRED — Omission of day of month: not jurisdic- tional defect (Orvis 64 How 71, 3 CivP 314, 4 LawB 93). STATEMENT OP PI.ACE OF PIDING RE- QUIRED — Jurisdictional: (Titus 8 AbP 177, 16 How 371). Personal service outside state: must be served with summons (Mishkind-Feinberg Realty Co 189 NY 402, afg 111 AD 578, 96 NYS 1136). , ^ Publication: must be published with sum- mons (Mishkind-Feinberg Realty Co 189 NY 402, afg 111 AD 578, 96 NTS 1136). Rule appUed: (Kendall 14 How 380, 12 NYS 80 note). STATEMENT OP PDACE OP PIDING SUF- FICIENT — "Clerk's office": ■summons state county where filed (Cook 19 NY 412, afg 8 AbP 170, 17 How 134). State not mentioned: in notice or sum- mons (Cook 19 NY 412, afg 8 AbP 170, 17 How 134). Untrue, present tense used: not filed at date of notice (•Hallett 13 How 43). Venue and that sujumons filed with com- plaint stated: place of filing complaint not stated in notice but fixed by law, collateral attack (Denman 101 NY 161). STATEMENT OF TIME OP FUtlNa RE- QUIRED — Jurisdictional: (Titus 8 AbP 177, 16 How 371 prior rule). Rule appUed: (Kendall 14 How 380, 12 NYS 80 note, prior rule). STATEMENT OF TIME OP FUSING SUF- FICIENT — Notice appended to summons as pnbllslied: not in summons ('Titus 8 AbP 177, 16 How 371 prior rule). NOTICE OF MODE OP SERVICE RE- QUIRED — RiUe appUed; (Orvis 64 How 71, 2 CivP 314, 4 LawB 93). STATEMENT OF MODE OF SERVICE SUF- FICIENT — By pubUcation: personal service outside state effective (See Thistle 66 How 472, 5 CivP 48). Omit words "without the state": where personal service made, service effective (McCully 66 How 486). Personal service outside state: service made by publication, defect not fatal (Loring 38 Hun 152, 3 HowNS 121, 8 CivP 304). PDACE OF APPEARANCE OP NOTICE PROPER — Appended to summons: (*Cook 19 NY 412, afg 8 AbP 170, 17 How 134, prior rule; *Titus 8 AbP 177, 16 How 371, prior rule). In body of stunmons: (Cook 19 NY 412, afg 8 AbP 170, 17 How 134, prior rule; Titus 8 AbP 177, 16 How 371 prior rule). Subjoined to summons: (La Farge 4 LawB DANGUACfE USED FOR NOTICE PROPER— EnerUsh: (Alfonso 99 Mis 550, 165 NYS 1037). rtaUan: ('Alfonso 99 Mis 550, 165 NTS 1037). RUDE CITED — But not applied: (Ludden 14 AD 397, 43 NYS 908; Marrone 92 Mis 602, 156 NYS 280; O'Neil 30 Hun 204). Eule 53. Proof of service of summons. Proof of service of a summons shall be made subject to the following regulations: 1. Proof of the personal service of a summons must be made by affldavit except as follows: (a) If the service be made by a sheriff, it may be proved by his certificate thereof; (6) if the defendant served he an adult who has not been judicially declared incompetent to manage his aff'airs, service may be proved by a written admission signed by him and either acknowledged by him and certified in like manner as a deed to be recorded in the county or accompanied with the affidavit of a person other than the plaintiff showing that the signature is genuine. 2. Personal service of a summons shall not be made by a person under eighteen years 43 SUMMOyS AND THE SERVICE THEREOF r. 513 of age and, if made by a person other 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. 3. Every certificate, admission or affidavit of service of a summons must state the time and the particular place and manner of service, and, if a certificate or a//idavit, that the person making the same knew the person served to be the person mentioned and described in the summons as defendant therein and that he left with the defendant a copy of the summons as well as delivered such copy to him. 4. A written admission of the service of a summons imports, unless otherwise expressly stated therein or otherwise plainly to be inferred from its contents, that a copy of the summons v»-as delivered to and left with the person signing the admission. 5. If, pursuant to an order for substituted service, a summons he served within the state on a resident of the state or on a domestic corjDoration other than a municipal cor- poration, or on a joint-stock or other unincorporated association, proof of service shall be made by the affidavit of the person making such service showing compliance with the order, except that service by delivery to any person of a copy of the summons, if such service he made by the sheriff, may be proved by his certificate. 6. // the summons he served personally without the state the affidavit of service must show that the deponent is an officer or person authorized by section two hundred and thirty-three of the civil practice act to make the service, and, if made by a resident or citizen of this state, it must show his place of residence and street number, if any. The affidavit, if made without the state, shall have annexed thereto a certificate of the proper official showing that the person before whom the affidavit was sworn to was qualified to act at the time of administering the oath. 7. Proof of publication of a summons and notice must be made by the affidavit of the printer or publisher or his foreman or principal clerk. 8. Proof of deposit of a summons in the post-office must be made by the affidavit of the person .who deposited it. 9. In matrimonial actions, the affidavit, in addition to the above requirements, shall state what knowledge the affiant had of the identity of the person served ivith the deferidant named 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 siieriff, the court may require the officer who made the service to appear and be examined in like manner, and must require him so to appear 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. 10. In matrimonial actions, ;/ the summons be personally served but a copy of the complaint be not served therewith, or if a copy of the summons and a copy of the com- plaint he delivered to the defendant without the state, the certificate or affidavit proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant. 11. The provisions of this rule relating to the summons shall apply to a notice or other paper accompanying the summons. EDITOBIAI, NOTBS — Source: subdivision 1, first clause, is CCP § 434; subdivision 1, (a) clause, is CCP § 434, subdivision 1; subdivision 1, (b> clause, is CCP § 434, subdivision 2, part; subdivision 2 is General Rule of Practice 18, first paragraph; subdivision 3 is CCP § 434, subdivision 2, second paragraph, part (also see General Rule of Practice 18. sub- division 3); subdivision 4 is CCP § 434, last sentence; subdivision 5 is CCP § 434; subdivision 6 is CCP § 443, subdivision 5, last paragraph; subdivisions 7 and 8 are CCP §§ 444, 434; subdivision 9 is General Rule of Practice 18, last paragraph; sub- division 10 is CCP § 1774, second sentence; subdivision 11 is General Rule of Practice 18, first sentence. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Personal serv- ice of summons. CPA § 220; Personal serv- ice of suinrnons upon a natural person, CPA § 22'5; Order for substituted service of summons in certain cases, CPA § 230; Manner of making substituted service, CPA § 231; Service without the state in| lieu of publication, CPA § 233; Personal service out of the state without order, CPA § 235; Service of papers through post- office. CPA § 164. Star (*) means read Not into HEABIiIITE in capitals. For illustration see Rule 1. FZKSOITAI. SEEiVICi: IN STATE: PBOOr BY AFFIDAVIT BEQUIBED — Other competent evidence: may supply lack of (Murphy 143 NY 78, 37 NB 675). — ArPIDAVlT OP SERVICE SUPPICIENT — Made Iby: attorney on information derived from clerk who made service (*SpauIding a AbNC 203); person making service, must be (Vitolo 66 AD 582, 73 NTS 273; Cilviera 34 Mis 267, 69 NYS 634); third person having actual knowledge of service and swearing positively thereto (Murphy 143 NY 78, 37 NE 675). r. 53 OLEVENOER'S RULES OF CIVIL PRACTICE 44 One afflclavlt! showing compliance witli re- quirements of code and of rule (Moulton 29 Supr 470). — CEBTIFICATS OP SERVICE STjrPI- CIBNT— Action not aeslgnated: (•Litchfield 5 How 341). Force not lost: by being filed in entering judgment afterwards vacated, still entitled to credit (Brien 2 AbP 4161. UlaAe Ity sheriff: based on statements of deputy who made service but died before making proof (Barber 56 How 364); of ■Westchester county, service in city of New York ('Farm L. & T Co 17 How 477. 9 AbP 61). Misnomer of clefendant: " Brennan " for " Brenham," no person by name of Brennan connected with action (Miller 68 NY 83). Betum of constable: cannot be impeached in action of trespass for arrest under execu- tion (Putnam 3 Wend 202). — ADMISSION OF SEBVICE SUFFICIENT — AfTrsnt make: no affidavit annexed verifying signature, irregularity only, waived if not taken advantage of at earliest opportunity (Jones 16 How 129). Copy of stunuions: admit service of by in- dorsement on original (Maples 15 Hun 533). "Due personal service" admitted: delivery of copy not stated (Maples 15 Hun 533). Personal service not stated: default judg- ment unauthorized (*Read 28 NY 285). Signature: genuineness, not proved by affi- davit but proved at trial (Maples 15 Hun 533); properly proved by affidavit (Maples 15 Huri 533); not proved to be that of de- fendant or made by his direction (•Litch- field 5 How 341). Time and place not stated: immaterial where defendant appeared in person (White 73 NY 256). Waiver of olajection: to sufficiency by pro- curing removal of action to United States court (Farmer 138 NY 265). — STATEMENT AS TO AG-E BEQITIBES — A1;torney make affidavit: judicial notice taken that at least 21 years of age (Booth 18 AD 407, 46 NYS 457). Bule applied: (Booth 18 AD 407, 46 NYS 457). — STATEMENT AS TO TIME OF SEBVICE REQUIRED — Admission: requirement technical, omission immaterial where defendant appeared in person (White 73 NY 256). Affidavit: (Moulton 29 Supr 470). — STATEMENT OF TIME OF SERVICE SUFFICIENT — Admission: date thereof taken as date of service (Maples 15 Hun 533). — STATEMENT OF FI^ACE OF SERVICE BEQUrRED — Admission: failure to state irregularity curable by amendment (Maples 15 Hun 533); requirement technical, omission im- material where defendant appeared in per- son (White 73 NY 256). Afttdavit: (Moulton 29 Supr 470). — STATEMENT OF MANNER OF SERVICE REQUIRED— Admission: default judgment unauthorized where no statement that service was per- sonal by delivery of copy (Read 28 NY 285). — STATEMENT AS TO KNO'WXEDGE OF IDENTITY REQUIRED — Affidavit: (Moulton 29 Supr 470). Rule applied; (O'Connell 104 AD 492, 93 NYS 643). — STATEMENT AS TO ENOWIiEDGE OF IDENTITY SUFFICIENT — Answered description: of defendant given to person making service and admitted iden- tity, opposing affidavits that only person seen by process server was not defendant and denied Identity as such ('O'Connell 104 AD 492, 93 NYS 643), —STATEMENT OF DEI^IVERY OP COPY liEQUIRED — Rule appUed: (Vitolo 66 AD 582, 73 NYS 273). — STATEMENT OF DEIIVERY OP COPY SUFFICIENT — "Served Mm:" ('Vitolo 66 AD 582, 73 NTS 273). ^STATEMENT OP LEAVING OP COPY REQUIRED— ,„„^ Affidavit: (Moulton 29 Supr 470). — SUPPLYING OF OMITTED PROOF RE- QUIRED — Formal defects; no defects of substance (Booth 18 AD 407, 46 NYS 457). EVIDENCE OF SERVICE SUFFICIENT — Affidavit of service: contradicted by positive affidavits of defendants that summons not served on them, no affidavits in reply (•Noble 39 Hun 474, 2 NYS 265); not conclu- sive (Van Rensselaer 7 How 297); support- ing evidence inconclusive, defendant who has sought to avoid service must produce satisfactory proof that affidavit untrue (Southwell 1 AbP 218). Certificate: of sheriff (Morrell 4 AbP 352; Thurston 1 AbP 126); supported by positive testimony of officers opposed by sworn de- nial of defendant (Sargent 17 StR 996). Person making affidavit of service: examined and cross-examined, defendant's counsel re- fused to call defendant as witness, reason stated therefor unsatisfactory (Smith 25 AD 105, 49 NYS 198). Positive: affidavit of service, denial thereof on motion sixteen years later after death of affiant (Moulton 29 Supr 470); statement in affidavit of service at defendant's office on particular day, conflicting evidence as to whether defendant home sick on that day, neither defendant nor his physician testify on subject and failure not explained (Dutton 23 AD 188, 50 NYS 784); testimony as to service at certain hotel by person making same, defendant testified he left hotel and city the preceding day, corrobo- rated by wife, papers found in wife's trunk and presence there unexplained (Wygant 9 NYS 372). Recital in judgment: against infant that summons served prima facie but not con- clusive evidence of fact, overcome by show- ing in judgment roll that guardian ad litem served (Smith 134 NY 568). Return of: constable certifying time and manner of service presumptive evidence of what it states (Wheeler 24 Barb 414); sheriff not conclusive (Van Rensselaer 7 How 297). — IiACK OF PROPER SERVICE SEO'WN— Affidavit: on motion permissible method (Wallis 15 How 567; Van Rensselaer 7 How 297). SUBSTITUTED SERVICE; AFFIDAVIT OP SERVICE SUFFICIENT — Affixed copies to door: and mailed through postoffice as required by order and statute (Steinhardt 20 Mis 470, 46 NYS 707). "Annexed " summons and complaint served: papers not physically annexed to affidavit (Steinhardt 20 Mis 470, 46 NYS 707). Not annexed: to papers served (Steinhardt 20 Mis 470, 46 KYS 707). PERSONAL SERVICE WITHOUT STATE; PERSONS WHO MAY MAKE — Barrister at law: in Newfoundland ('Fair 103 Mis 412, 171 NYS 694). Deputy: sheriff (Sexton 104 Mis 1. 171 NYS 696); United States marshal ('Cohnfield 220 NY 681, afg 174 AD 434. 161 NYS 160; •Sexton 104 Mis 1, 171 NYS 696). Officer authorized: by laws of New York to Lake acknowledgments of deeds to be re- corded in New York (Cohnfield 174 AD 434, 161 NYS 160, afd 220 NY SSI). Resident: of state of New York (Cohnfield 174 AD 434, Ifil NYS 160. afd 220 NY 681). Sheriff: (Sexton 104 Mis 1, 171 NYS 696). 8VMM0X8 AND THE SERVICE THEREOF r. 53 Uudersherlff: (Sexton 104 Mis 1, 171 NTS 696). TTnlted States marslial: (Sexton 104 Mis 1, 171 NYS 696). -PROOF BY AFFIDAVIT BEQTTERES — Certificate of sheriff: insufficient (Morrell 4 AbP 352; Thurston 1 AbP 126>. -AFFIDAVIT OF SEBVICE SUPFIOIBKT — Plaintiff's attomeyi serve and make affidavit, fail to state residence, office and postoffice address appended to summons (Booth 18 AD 407, 46 NTS 457). Positive statement: that notice served with summons not overcome by denials on in- formation and belief and allegation that notice not on file with clerk (Wessels 142 NT 212). iEBVICE B'S' PUB^ICATIOIT; WHO MAV MAKB AFFIDAVIT — "laana^er:" of publication (Waters 7 Mis 519, 27 NTS 1004). -^AFFIDAVIT StTFFICIEirT — Mail: by depositing at place having regular mail communication with defendants resi- dence, duly directed and full postage paid (Steinle 12 AbNS 171); "on or about a cer- tain day" ('Smythe 4 LawB 60). lATBIUONIAI^ ACTIONS; STATEMEN'T OF KirOWTiEDGE OF IDENTITY RE- QUIRED — Rtae applied: (Freeman 57 Mis 400, 109 NTS 705; Silveira 34 Mis 267, 69 NTS 634; Fowler 29 Mis 670, 61 NTS 109). — STATEMEM'T OF KNOWI^EDGE OF IDENTITir SUFFICIENT — Know defendant: for about a year, defend- ant admitted he was plaintiff's husband (Fowler 29 Mis 670, 61 NTS 109); very well (Fawcett 29 Mis 673. 61 NTS 108). —STATEMENT OP HOW KNOWIiEDGE OF IDENTITT ACQUIRED REQUIRED — Rnle applied: (Freeman 57 Mis 400, 109 NTS 705; Silviera 34 Mis 267, 69 NTS 634; Fow- ler 29 Mis 670, 61 NTS 109). —STATEMENT OP SOW XNOWI^EDGE OF IPENTITY ACQUIRED SUFFICIENT — Aanaintance: how made should be stated (Silviera 34 Mis 267, 69 NTS 634). Brother-incla-w: (Fawcett 29 Mis. 673, 61 NTS 108). Declarations or statements: of person served ("Freeman 57 Mis 400, 109 NTS 705). Pacts must be stated: (Freeman 57 Mis 400, 109 NTS 705). Hearsay: ('Freeman 57 Mis 400, 109 NTS 705). — EXAMINATION OF AFFIANT AUTHOR- IZED — Invariable practice: in some districts (Free- man 57 Mis 400, 109 NTS 706). RiQo applied: (Freeman 57 Mis 400, 109 NTS 705; Fowler 29 Mis 670. 61 NTS 109). — EXAMINATION OP AFFIANT PROPER — Brother of plaintiff: (Fawcett 29 Mis 673, 61 NTS 108). — EXAMINATION OF OFFICER RE- QUIRED— Certificate insufficient: (Freeman 57 Mis 400, 109 NTS 708). — EXAMINATION OP OFFICER PROPER — Affidavit made: (Freeman 67 Mis 400, 109 NTS 705). — STATEMENT AS TO NOTICE OF NA. TURE OP ACTION REQUIRED — Complaint: not served with summons (Fow- ler 29 Mis 670, 61 NTS 109); personally served on defendant within state (*Eraham 91 Mis 151, 154 NYS 1044). — STATEMENT AS TO NOTICE OF NA- TURE OP ACTION SUFFICIENT — " Poreg'oing sununons" served: copy sum- mons attached to affidavit shows notice written thereon (Fowler 29 Mis 670, 61 NTS 109). PROOF OP SERVICE CONCLUSIVE— Return of sheriff: collateral attack or action against sheriff (*Col Ins Co 8 How 353); in same action (Col Ins Cn 8 How 353). Time of commencement of action: as against plaintiff (Burroughs 12 How 171). RUDE CITED — But not applied: (Marrone 92 Mis 602, 156 NTS 280). INAPPDICABI^E — Tax sale proceedings: rules for matrimonial actions (Hobbs 122 AD 399, 106 NTS 836). rr. 55, 56 GLEVENGER'S RULES OF CIVIL PRACTICE 46 TITLE 9 APPEARANCE Rule 55. Authority for appearance of attorney in real property action. 56. Substitution of attorney. EDITOBIAI, NOTES — Civil Practice Act references: Appearance in person or by attorney, CPA § 236; Defend- ant's appearance, CPA § 237: Effect o( de- fendant's appearance, CPA § 238; Appear- ance of guardian ad litem for infant, CPA, § 239; Death, removal or disability of at- torney, CPA § 240. Rule 55. Authority for appearance of attorney in real property action. In any action affecting real property where a non-resident defendant appears by attorney, the attorney must file with the clerk written authority for his apjpearance, duly executed and acknowledged as a deed to be recorded, and must serve a copy thereof, or notice of such filing, on the plaintiff's attorney with his notice of appearance, or within tiventy days thereafter. In such an action, a defendant, at any time before answering, may apply to the court, on notice accompanied by an affidavit showing that evidence of stich authority has not been served on him, for an order directing the attorney for the plaintiff to produce evidence of his authority to begin the action. On such motion, a request in writing to the plaintiff's attorney from the plaintiff, or his agent, to begin the action, or any ratification in writing of his action on behalf of the plaintiff, shall be presumptive evi- dence of such authority. EOTVOItlAI. NOTES — Source: first paragraph is new; second para- graph, first sentence, is CCP & 1512; second paragraph, last sentence, is CCP § 1514. CCP § 1512 revised from 2 RS 304, pt 3, c 5, tit 1, §§ 17, 18, consolidated. CCP § 1514 revised from 2 RS 304, pt 3, c 5, tit 1, § 20. Text in itaUcs is new matter, inserted June 17. 1921. Star (*) means read Not into KEADI^INE in capitals. B'or illustration see Rule 1. ACTIONS IN -WHICH AUTHORITY TO AP- PEAB BEQUrRED — Ejeotmeat: (Stewart 27 Mis 708, 59 NTS 573; Stewart 27 Mis 239, 58 KlYS 415; Howard 11 How 80). ■WRITTEN REQUEST OB RECOGNITION SUPPICIENT — Afflaavit: of plaintiff that he had instructed Rule 56. Substitution of attorney. An attorney may be changed by the order of the court or a judge thereof on the consent of the party and the attorney, or on appliea- cation of the party or attorney on notice and on such terms as shall be just. the attorney to bring the action in his name (Carpenter 45 Supr 322). Instruzuent: executed by joint owner of land recognizing authority of attorney to com- mence suit, and requesting him to continue it (Howard 11 How. 80). Teriflcation: of complaint by plaintiff (Gra- ham 11 Mis 649, 32 NTS 795). WHO IS NOT AN " AGENT " — Person having power: to see to property with direction to take possession of a lot of land and work it (Howard 11 ^ow 80). PENAIiTY POR PAII.URE TO PRODUCE AUTHORITY — Stay of proceedings: until authority is pro- duced (Stewart 27 Mis 708, 59 NTS 573; Stewart 27 Mis 239, 58 NTS 415). EDITORIAI^ NOTES — Source: General Rule of Practice 10, rewrit- ten. Formerly Rule 12 of 1858; Rule 15 of 1871; Rule 15 of 1874; Rule 10 of 1877; Rule 10 of 1880; Rule 10 of 1884; Rule 10 of 1888; Rule 10 of 1896; Rule 10 of 1900; Rule 10 of 1910; Rule 10 of 1913. General Rule of Practice 10 read: "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. " Text in Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Death, removal or disability of attorney, CPA § 240. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1, RIGHT OP Ci;iENT TO SUBSTITUTION ABSOI>UTE — Cause: showing unnecessary (Dunn 205 NT 398, 98 NE 914; Lievergall 189 AD 681, 178 NTS 857; MJartin 161 AD 610, 146 NTS 1041; Jeny 128 AD 833, 112 NTS 1106; Johnson 113 AD 810, 99 NTS 1059; PvBk of Staten Island 112 AD 791, 99 NTS 486; Anglo-Continental Chem Works 111 AD 418. 97 NTS 1081; O'Connor 90 AD 432, 86 NTS 1; Sheldon 91 Hun 637, 35 NTS 1117; Prospect Ave 85 Hun 257, 32 NTS 1013; Griggs 79 Hun 394, 29 NTS 794; Friedman 91 Mis 473. 155 NTS 295; Lederer 63 Mis 322, 117 NTS 151; Rob- bins 61 Mis 114, 112 NTS 1032, afd 132 AD 905, 116 NTS 1146; O'SuUivan 39 Mis 268, 79 NTS 431; Timmerscheidt 180 NTS 269; Johnson 100 NTS 1123; Prentiss 60 How 380; Trust 15 How 570; Ogden 45 Supr 631; Wolf 28 Supr 611; Hazlett 28 Supr 611). Claim of attorney's lien: does not affect the subject matter may possibly be collected (DeWitt 1 Silv Sup 541. 5 NTS 602). Individually and representatively: plaintiff suing individually and as executor with co- executor CChappotin 165 NTS 734). Interest of attorney: in action being greater than that of client CSteenburgh 11 AD 286, 42 NTS 333). Purpose; inequitable CHirshfeld 5 AD 202, 39 NTS 24). RIGHT OP ATTORNEY TO SUBSTITUTION IiIMITED — Consent of client: dependent on (Buckley 18 NTS 607). APPEARANCE r. 56 FFI^ICATIOIT TO SUBSTITUTE IS SFE- CIAi; FBOCEEDING — Hot motion: in action (Doyle 26 Mis 61, 56 NTS 441). UIiE AFFI^IES TO AI^I^ SUITORS— &.rtificlal or natural: (Parker 13 How 250). ENDING FBOCEEDina NECESSARY— Will probated: and no papers in attorney's liands, no power to substitute (Kralcauer. 33 Mis 674, 68 NYS 935). ONSENT OF FARTV AND ATTORNEY NECESSARY- Consent: filed on order substituting new at- torney (Krekeler 49 How 138); of attorney insufficient (Buckley 45 StR 827, 18 NTS 607); of client to delegation of authority by attorney to another (Lacher 127 AD 140, 111 NTS 283). UBiSTITUTION ON TERMS NECESSARY — Iilen lost; by virtue of contract ('Barkley 42 AD 597, 59 NYS 742). Misconduct: not shown (Dunn 205 NY 398, 98 NB 914; Hollins 197 NY 361, 90 NE 997, rvg 135 AD 918, 120 NYS 1128, 2 CivP 20; Anglo-Continental Chem Wks 111 AD 418, ■97 NYS 1081; Mitchell 57 AD 22, 67 NYS 961; JefEards 49 AD 45, 63 NYS 530; Shel- don 91 Hun 637, 35 NYS 1117; Prospect Ave 85 Hun 257, 32 NYS 1013; Howland 6 Hun 237; Friedman 91 Mis 473, 155 NYS 295; Timmerscheidt 180 NTS 269; Bd of Super- visors 44 How 411; Wolf 28 Supr 611); shown (»Barkley 35 AD 167, 54 NYS 970; Pierce 10 WkD 432). Services of no benefit: to client (*Jeny 128 AD 833, 112 NYS 1106; 'Reynolds 3 AD 420, 38 NYS 764). ITnsatisfied judgment: against attorney (•Whiteman 27 Mis 814, 59 NYS^ 185). ^ER]H:s aEiiD just— Disdiargre of lien: upon papers In attorney's possession (Prentiss 60 How 380). Payment of costs: (Creighton 20 Barb 541; Prentiss 60 How 380; Bd of Supervisors 44 How 411; Hoffman 14 AbP 336; Wolf 28 Supr 611; Esty 1 LawB 55), where lien pre- served ("Stevenson 3 Edw 340). Payment of certain sum: within fixed time (Kane 87 AD 101, 84 NYS 111, afd 177 NY 557, 69 NB 1125). Payment of fees due: (Hollins 197 NY 361, 90 NB 997, rvg ISfe AD 918, 120 NYS 1128, 2 CivP 20; Mitchell 57 AD 22, 67 NYS 961; Philadelphia 1 AD 387, 37 NYS 291; Lederer 63 Mis 322, 117 NYS 151; Trust 15 How 570), both as attorney and counsel (Ogden 45 Supr 631), in drawing and serving notice of appearance (Peoples Bk 30 NYS 858, 24 CivP 62), offsetting indebtedness by attor- ney to client (Prospect Ave 85 Hun 257, 32 NTS 1013). Payment of sums advanced: by attorney (Howland 6 Hun 237). Preservation, of lien: (Johnson 113 AD 810, 99 NYS 1059; Anglo-Continental Chem Works 111 AD 418, 97 NYS 1081; Stewart 6 StR 524; Edwards 23 -WkD 230; Hazlett 28 Supr 611; Woodford 6 CivP 315; Timmer- scheidt 180 NYS 269), for fees already earned, after client's bankruptcy (Kraus 161 AD 916, 145 NTS 1086), for value of services rendered, and not to extent of con- tract price, complaint having been dis- missed (DeAngelis 74 Mis 394, 132 NTS 295), of firm lien, on substitution of part- ner after dissolution of firm (Schneible 36 Mis 522, 73 NYS 955), on papers in hands, and not embracing referee's fees (Hinman 40 AD 234, 57 NYS 1037). Protection: as to amount of compensation agreed upon (Friedman 91 Mis 473, 155 NYS 295), as to fees, when no misconduct shown (O'Sullivan 39 Mis 268, 79 NYS 481), attor- ney having- done what he was employed to do (Naiburg 149 NYS 495). Provision: for ascertaining value of services and enforcing payment; payment unneces- sary (Ackerman 166 NTS 1080), that in event of recovery, no portion shall be paid out without notice so that amount of com- pensation may be fixed (Bryant 64 AD 542, 72 NTS 308). Security: for amount found to be due (Hol- lins 197 NT 361, 90 NB 997, rvg 135 AD 918, 120 NTS 1128, 2 CivP 20; Mitchell 57 AD 22, 67 NTS 961; Cunningham 5 AbbP 413), for nonresident defendant's costs, that attorney may be relieved from liability therefor (Esty 1 LawB 55), for payment of services rendered in another court (*Davis 7 Daly 1), where existence of lien controverted (Lederer 63 Mis 322, 117 NTS 151). Stipulation: by substituted attorney that su- perseded attorney should be paid amount fixed by referee and that such amount should be lien (British Empire Typesetting Mach Co 83 AD 640, 82 NTS 47), for lien on deficiency judgment for balance of claim (Kunat 53 AD 271, 65 NTS 830), for pay- ment of certain sum contingent on collec- tion of alimony (Bittiner 20 Mis 330, 45 NTS 953; Bittiner 19 Mis 146, 43 NTS 389). MISCONDUCT JUSTIFYING UNCONDI- TIONAIi SUBSTITUTION — Abandonmemt of case by attorney: without just cause (Cary 97 AD 471, 89 NTS 1061; Rieser 137 AD 177, 121 NTS 1070; Fargo 35 Mis 568, 72 NTS 21), because client failed to furnish money (Hahn 93 NT 381), until amount claimed to be due for services be paid (Halbert 16 AD 126, 45 NYS 113; Tuck 53 Hun 455, 6 NYS 140, 17 CivP 175), after appointment of receiver by reason of in- solvency of corporation ('Dunn 205 NY 398, 98 NE 914). Not determined; on conflicting affidavits (Lesster 149 AD 938, 134 NYS 401, ap dis 206 NY 683, 99 NE 1110). ORDER OF SUBSTITUTION NECESSARY — After entry of judgment: CMoore 40 Hun 56; Davis 25 Mis 695, 56 NYS 80; Egan 38 How 121; Webb 10 CivP 27; Ward 10 AbNC 60). Attorney leaving state; (CJhautauque Co Bk 6 Hill 375). Consent of attorney insufficient: (Felt 21 Mis 404, 47 NYS 951; Wood 19 WkD 121; Roy 11 NY Leg Obs 29; *PvBk of Staten Island 112 AD 791, 99 NTS 486: *Quinn 5 AbNS 281, 30 Supr 538, 36 How 378). Notice alone lusufBcieut: (Miller 67 Barb 44.6). Of court or judge thereof: (Parker 13 How 250). Fending action; (Mumford 1 Hopk 369; Wolf 28 Supr 611; 'Liebergall 189 AD 681, 178 NTS 857). Service of papers: by partner of one who has been appointed clerk of court, and who remains attorney of record although taking no part in proceedings ('Cronin 26 StR 249, 7 NTS 337). To enable substituted attorney: to move in cause (Robinson 1 How 90; Krekeler 49 How 138; Jerome 1 Wend 293; Bd of Super- visors 44 How 426; Stevenson 3 Edw 340), to file supplemental bill, quaere (M'Laren 5 Paige 530), to issue execution (*Thorp 5 Cow 446), to issue scire facias to revive judgment (*Gonnigal 6 Johns 106), to serve notice of appeal (Theirry 33 Hun 366; Mil- ler 67 Barb 446), to prosecute appeal (Shuler 38 Hun 240; Pensa 3 Mis 417, 23 NTS 186; •Magnolia Metal Co 37 AD 366, 56 NTS 16; •Slepin 84 Mis 254, 145 NTS 530; *Pratt 19 How 450). To enable temporary administrator; to avail himself of other attorney in connection with other proceedings relating to estate (•Aaron's 7 StR 735). ■Waived by opponent's appearance; in motion by new attorney (Doerle 96 Mis 72, 159 NTS 637). ■Witlidrawal of motion to substitute attor- ney: on tender of costs (*Simers 82 Mis 422, 143 NTS 1020). ORDER OP SUBSTITUTION SUFFICIENT— Entitled In action for separation: notwith- standing sequestration proceedings by wlie r. 56 GLEVENGER'S RULES OF CIVIL PBACTWE 48 in continuation thereof (Brown 178 AD 558, 165 NYS 736). Providing' for delivery of pleading's: and papers in case (Rieser 137 AD 177, 121 NYS 1070). ORDER or S'OBSTITTTTION JILOJtITTEJ} — Reajuctlon of compensation; (Myer 20 AD 390. 46 NYS 822). SERVICI; OP ORDER OP STTBSTITITTIOIT UNHrECESSAR-S!- — Notice of substitution sufficient: (Bogardus 3 AbP 179). "WHAT COURT MA? BNTERTAIir MO- TION— Appellate court: after filing of return on ap- peal (Squire 138 NY 554, 53 StR 269). Appellate Division: (Barkley 42 AD 597, 59 NYS 742). Court in 'nrhich no cause pending': ('Mandel- korn 99 Mis 168, 165 NYS 404). Xower court: of motion to direct former at- torneys to turn over papers to substituted attorney after appeal taken (PxHoffman 141 NY 86). Surrogate court: (Ajello 175 NYS 729; Chat- field 2 Dem 191; *Halsey 13 AbNC 353, 2 Dem 677), after removal of case to another court (*Hoyt 5 Dem 432, 12 CivP 208). Wrong court: not necessarily fatal to subse- quent proceedings (Squire 138 NT 554, 53 StR 269). NOTICE OP STTRSTITUTION NECESSARY — Court and litigants; (White 52 AD 225, 65 NYS 168, ap dis 170 NY 575, 62 NB 1101). Opposing attorney: (Heath 2 How 121; Rob- inson 1 How 90). Protect adverse party: (Parker 13 How 250). NOTICE OP SUBSTITTTTION SXTPPI- CIENT — Written notice of fact of sul)Stitution : how effected immaterial (Dorlon 7 How 132). REFERENCE ORDERED — Agreement for compensation; take proof as to (British Empire Typesetting Mach Co 83 AD 640, 82 NTS 47). Amount of compensation due; determine (British Empire Typesetting Mach Co 83 AD 640, 82 NTS 47; Jerome Ave 58 AD 459, 69 NYS 413, mod 167 NY 501, 60 NE 781; Philadelphia 1 AD 387, 37 NYS 291; Acker- man 166 NYS 1080; Cregier 25 How 200), where judge to whom question was sub- mitted had presided at trial at which serv- ices were rendered (»Scheu 124 AD 678, 109 NYS 130). ,„ Amount of costs due; determine (Russell 1 How 149). Inquiry limited; to apportiomng lien to amount paid into court (Dept of Public Wks 167 NY 501, 60 NE 781, mod 58 AD 459, 69 NYS 413). Terms on -whicli substitution should be made; determine (Barkley 35 AD 167, 54 NYS 970). S'HBSTIT'aTION BARS — Purther action: by former attorney (Felt 21 Mis. 404, 47 NYS 951). PAPERS IMPROPERIiV REQUIRED TO BE DEI. Affidavit on extension of time to answer or reply. BSITORIAI^ NOTES— Civil Fraotice Act references: Extension of 1 time generally, CPA § 98; Limitation on ex- tension of time, CPA § 99. Rule 85. Affidavits to bo served with order of extension. Copies of all affidavits used on an application for an order extending time must be served with a copy of the order. EDITORIAI^ NOTES — Source: CCP § 782, as revised from CP § 405, part, extended so as to include orders made in pursuance of CP § 413, or CCP § 780. Text in italics is new matter, inserted June 17, 1921. Star (*) means read ITot into KEADAIITi: In capitals. For illustration see Rule 1. SEBTICE OF AFFIDAVIT OF MERITS NECESSARY— Disreerardinf order: because of omission notice necessary before entering judgment (First Nat Bk 14 CivP 1); permissible (Corning 10 NYS 937, 18 CivP 193). RUI^E INAFF£ICABIiE — Supplementary proceeding's; order forbidding transfer of property (Green 8 How 313). RUKE CITED — But not applied: (Quinn 2 Hilton 467). Rule 86. Extension of time to answer in action on note, etc. In an action brought 'Apon a promissory note, or other written evidence of debt for the unconditional pay- ment of money, payable on demand, or at a specified time, no order extending the time to plead shall be granted without notice of at least two days to the plaintiff's attorney. BDITORIAIi NOTES — Source: CCP § 1778, first sentence broad- ened, as revised from 2 RS 459, pt 3, c 8, tit 4, §§ 8, 9 and 10. OCP § 1778 read: "In an action against a foreign or domestic corporation, to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money, upon demand, or at a particular time, an order, extending the time to an- swer or demur, shall not be granted, ex- cept by the court, upon notice to the plain- tiff's attorney." Text in italics Is new matter, inserted June 17, 1921. Civil Fractice Act references: Verification in action against corporation to recover on note or other evidence of debt, CPA § 252; Time within which to a'nswer or appear, CPA § 263. Star (*) means read Not into KEADKIXTE in capitals. For illustration see Rule 1. Rule 87. Additional extension of time to plead. Where the time to serve any plead- ng has been extended by stipulation, or order, no further extension shall be granted by )rder, unless at least two days' notice of the application therefor has been given to the idverse party. BDITORIAI. NOTES — Source: General Rule of Practice 24, last paragraph. Formerly Rule 20 of 185*2; Rule 22 of 1858; Rule 30 of 1871, 1874; Rule 24 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 24, last para- graph, read: *' 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." Text in italics is new matter, inserted June 17, 1921. Civil Fractice Act references: Time in which to answer or appear, CPA § 263; Service of reply, CPA § 273. Star (*) means read Not into EEADljINE in capitals. For illustration see Rule 1. NOTICE REQUIRED — Ex parte order; made by judge out of court after extended time expired a nullity (Fries 13 CivP 152). First extension: not expired when applica- tion made ('Condon 14 Mis 181, 35 NTS 382). Frevious extension: by stipulation for more than 20 days (Tuska 140 AD 323. 125 NTS 182). Several extensions: by stipulation (Jackson 92 Mis 225. 165 NYS 402). NOTICE TIMELY — last day: under previous extension ('Jack- son 92 Mis 225, 155 NTS 402). NOTICE StrFFICIENT — Order for examination: of plaintiff before answer, extension contained in, not served until time expired (See 'Jackson 92 Mis 225, 155 NTS 402). EXTENSION BY PROVISION IN ORDER OBTAINED 'WITHO'UT NOTICE ni- FROPER— Exajninatlon: of plaintiff before answer (See Jackson 92 Mis 225, 155 NTS 402). Show cause: why certain allegations of com- plaint not stricken (Tuska 140 AD 323 125 NTS 182). ' Striking out extension; is matter of rleht (Tuska 140 AD 323, 125 NTS 182). r. 88 CLEVENGER'S RULES OF CIVIL PRACTICE 60 Rule 88. Affidavit on extension of time to answer or reply. A defendant's time to answer, or a plaintiff's time to reply to a counterclaim, shall not be extended unless the party applying for the same shall present an affidavit showing merits in support of such extension. Supr 147), where personally served ('Gra- ham 30 Supr 147). PERSONS WKO MAY MAKE AFFIDAVIT — Ag'ent: general, no excuse for defendant not makiag ('Mason 1 How 62); specially authorized to defend (Davis 25 Mis 695, 56 NYS 60). Attorneyi (Davis 25 Mis 695, 56 NTS 80; Johnson IJ How 199); defendant absent beyond sea (Philips 3 Johns 141); In fact specially employed tcf defend (Johnson 15 How 199); no excuse for defendant not making ('Roosevelt 2 Cow 581). Clerfc: of defendant's attorney, not shown to be lawyer or to have any knowledge of matter ('Davis 25 Mis 695, 56 NYS 60). Defendant! (Davis 25 Mis 695, 56 NYS 60). Maker of note: on which action brought against indorser, separate action against maker, defense in both actions tho same (President Ontario Bk 6 Cow 395). Reason; why not made by defendant must appear where made by another (Davis 25 Mis 695, 56 NYS 60; Johnson 15 How 199; Roosevelt 2 Cow 581). AFFIDAVIT SUPFICIBNT — Advice of counsel: not stated ('Bruen 3 Caines 97; 'Cannon 5 Johns 365). Attorney's affidavit: that defendant repre- sented that he had good and substantial defense on merits, and affiant believed from representations and papers produced that there was a legal defense ('Phillips 3 Johns 141). Defense: " good and substantial " (Brlggs 3 Johns 449; 'Jackson 3 Caines 93); "In the action," no statement as to merits or advise of counsel ('McMurray 5 How 14); "on the merits" omitted ('Tomkins 10 How 309); to "plaintiff's declaration filed in this suit" ('Howe 1 How 68). Directed to: cause of action, must be (State Bk of Syracuse 23 Hun 406); "plaintiff's claim as set forth in said complaint " ('State Bk of Syracuse 23 Hun 406). Fall disclosare to counsel: not indicated ('Davis 25 Mis 695, 66 NYS 60); not stated ('Gold 26 Mis 1, 55 NYS 575). Stated to counsel: "case in this cause" (•Ellis 6 How 296); "defense" ('Tomp- kins 10 How 309; 'Richards 3 How 413; •Brownell 22 Wend 636); "facts of his case" ('Pitzhugh 1 Hill 644); "facts of this case" (Jordan 6 How '6); "fully" instead of "fully and fairly" ('Bleeeker 2 How 161); "fully and fairly," phrase equivalent to used ('Brown 19 Wend 617), omitted ('Gary 2 How 170; 'Brownell 22 Wend 636); "this case" (Brown 2 How 196). EXTENSIOIT BV FROVISIOir OF ORDER OBTAINED WITHOUT AFFIDAVIT IM- PROPER — Secturity for costs: (Kinley 49 Mis 334, 99 NYS 199). EDITORIAl^ NOTES — Source: General Rule of Practice 24, first paragraph; covers General Rules of Prac- tice 23. General Rule 24 was formerly Rule 20 of 1852; Rule 2'2 of 1858; Rule 30 of 1871, 1874; Rule 24 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 23 was formerly Law Rule 62; Rule 39 of 184'9; Rule 36 of 1862; Rule 21 of 1858; Rule 29 of 1871, 1874; Rule 23 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 24 read: "No order extending a de- fendant's time to answer or demur, or the plaintiff's time to reply to a counterclaim, shall be granted, unless the party ap- plying 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 be- lieves 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 a 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 ering: paragraphs of answer is not sufficient compliance with rule (•Fay 26 Mis 421, 57 NYS 155). REMEDY FOR NOT SEPARATE!^-? STAT- ING AND NTTMBERING PROPER — By demurrer: (*Zrskowski 15 Mis 234, 36 NYS 421); by demurrer if objection ap- parent on face of complaint, if not, by answer (Lane 69 Hun 180, 23 NYS 576). By motion: (Krower 99 NY 245; Agett 160 NYS 843); by motion and not by demurrer (Bass 38 NY 21, 36 How 382; Griffith 30 Mis 393. 62 NYS 391)- by motion before answering (Christenson 117 AD 810, 102 NYS 1041; Stern 119 AD 478, 103 NYS 1026; Lyon 116 NYS 569); by motion only (Freer 61 NY 492). REQUIREMENT OP SEPARATE STATE- MENT AND NUMBERING WAIVED— Extension of time: taking order extending time " to answer demur or move, as they may be advised" ('See Goldberg 60 NY 427). Failure: to make motion (Freer 61 NY 492); to object before trial (Gearity 133 AD 701, 118 NYS 257; Krower 99 NY 245); to object by demurrer or answer (Lane 69 Hun 180, 23 NYS 576); to present question below (Wood 78 Hun 78, 29 NYS 263). In answer: irregularity in statement and numbering of causes in complaint and failure to raise objection (See Kneuper Specialty Co 171 AD 55, 157 NYS 395). Noticing cause for trial: motion being no- ticed in time ('Morron 162 AD 466, 147 NYS 931). FACTS ONCE DENIED IN ANS'WER DEEMED DENIED FOB AX.1^ PUR- POSES — Affirmative defense: not Incorporating de- nials in another part of answer, prior CCP rule (•Bernascheff 34 Mis 588, 70 NYS 369; 'Douglass 138 NY 209, 33 NE 938). Denial: of all material allegations in first defense in action for royalties on license to produce play, prior CCP rule ('Outcault 120 AD 168, 104 NYS 1099); of amount of work done, doing of work admitted In other part of answer (Swift 24 Barb 541); of assumption of contract at time within period of limitation in one defense not re- peated or referred to in separate defense based on statute of limitations, prior CCP rule ('Gray Lithograph Co 44 Mis 206, 88 NYS 857); that lease under seal in one defense omitted in separate defense, prior CCP rule ('Hudson Building Co 169 AD 600, 165 NYS 488); that note made and delivered for value in one separate defense not repeated in another, prior CCP rule (•Empire Tr Co 117 AD 34, 102 NYS 9). General references: insufficient to incorpo- rate denials of one defense in another, prior CCP rule (•Recknagel 58 AD 352, 69 NYS 132). New facts: set up in separate paragraph of answer as separate defense, prior CCP rule (•Eells 84 AD 105, 82 NYS 531). Separate defenses: including statement that defendant " realleges all that he has hereinbefore alleged " does not embrace denials, prior CCP rule ('Stemmerman 122 AD 669, 107 NYS 379). Statute of frauds: defense that contract not written failing to state denial properly not aided by denials in other defenses, prior COP rule ('Brookline Nat Bk 19 AD 155, 45 NYS 997). AI.I.EGATIONS OF ONE CAUSE OF AC- TION INOOPORATES BY REFERENCE IN ANOTHER — As above stated: defendant indebted to plaintiff for money had and received " on &c. as above stated " (Woodbury 65 Barb 501). AU^EGATIONS OF ONE DEFENSE INCOR- PORATED BV REFERENCE IN AN- OTHER — Admission: of allegations in one answer no admission of those in separate answer (•Hoes 28 AD 374, 51 NYS 233). As aforesaid: in the first defense herein (Davenport 132 AD 96, 116 NYS 411). Partial defense: not referring to other de- fenses CStarboro 26 AD 177, 49 NYS 1033). Realleges: allegation in separate defenses that defendant " realleges all that he has hereinbefore alleged " (Stemmerman 122 AD 669, 107 NYS 379). ReafBrms; "all the allegations and denials" of preceding defense where new matter did not constitute defense ('Garrett 27 AD 312, 50 NYS 950). 67 PLEADINGS rr. 90,91 Xeferrlng to or repeatiuK: action on con- tract for labor and materials and for five other claims for materials furnished dur- ing performance of contract, essential facts pleaded in first cause not incorporated in other five ('Wright 91 Mis 573, 154 NTS 961); allegations bringing action within penalty sections of Agriculture Law in first cause not repeated or referred to in succeeding causes ('PyKoster 50 Mis 46, 97 NTS 829); answer in suit on note sets up that it was an accommodation in one defense but in separate defense that allega- tions not referred to or repeated ('Royal Bk of NT 51 Mis 622, 101 NTS 101); gen- eral references are insufficient ('Recknagel 58 AD 352, 69 NTS 132); general reference to preliminary paragraphs setting forth official status of defendants sued in official capacity insufficient ('Wallace 68 AD 191, 74 NTS 116); no reference to allegations in other defense ('Ayrault 33 Barb 229); paragraphs showing facts bringing cause within the Taxpayer's Acts, not referred to or repeated in paragraphs setting forth three causes of action under those acts (•Daly 163 AD 234, 148 NTS 42); reference to preceding paragraph as part of separate defense (Shattuck 125 AD 431, 109 NTS 8i62). Bep«a,t and reallege: "all the statement contained in paragraphs 1 and 3 of the first cause of action " is insufficient (•Bigelow 42 Mis 617, 87 NTS 581). Said contract: in action on building contract, separate defense and counterclaim that plaintiff abandoned " said contract " refers to nothing, there being no other reaver- ment or reference ('Walsh 55 Mis 400, 106 NTS 570). EI^ECTIOK BEQTTIBES WHEBE CAUSES irOT SEFABATEI^Y STATED — Causes: Improperly joined (Agett 160 NTS 843). Complainant: claiming one cause only in- tended required to so stipulate or motion to separately state and number granted (Loew 114 Mis 404, 186 NTS 694). Conversion: and action for goods sold and delivered (Christenson 117 AD 810, 102 NTS 1041). SEFENSES AND COUITTEBCI^AlnlS STATED: SEFABATE STATEMENT AND mTMBEBING BEQUIBED — Bank's transactions: in full with plaintiff's intestate, showing balance due bank, pleaded in suit for accounting as answer and counterclaim (Foley 24 CivP 249, 33 NTS 414). Contract action: defense denied some alle- gations and claimed damages for breach of contract sued on and of two others (Dixon 171 AD 552, 157 NTS 385). Conntercladm: for balance due on partner- ship account included in five so-called separate defenses, none of which alone is a defense (Spencer 22 Barb 326). Defense and coanterclaim: no affirmative relief asked (Leibovitz 107 NTS 135). Diversion: of bank's funds by president, illegality of contracts in cotton futures, and bucketing of orders by broker in ac- tion by broker's assignee for deposit to his account by president of bank (Botts 180 AD 546, 167 NTS 1033). Facts: not stated (Wagner 121 NTS 1109). Ooods sold: on contract (Stroock Plush Co 129 AD 14, 113 NTS 214). Paragraphs: tho numbered (Natl Gum & Mica Co 124 AD 569, 109 NTS 286). Befusal: to execute lease, failure to make repairs and failure to make alterations to correct building violations, all pleaded both as defenses and counterclaims in rent ac- tion (Walker 167 NTS 600). DEFENSES AND COTJNTEBCI^AEMS STATED: SEFABATEI;Y STATED AND NUHBEBED — Facts: not stated (Garfield Nat Bk 17 Mis 310, 40 NTS 357). ADimSSZONS OF ONE DEFENSE IKCOB- FOBATED IN ANOTHEIt — Separate answer: admission in not avail- able when another answer is questioned (•Ayres 18 Barb 260). MATTEBS CONSIDEBED ON MOTION TO STATE SEFABATEIiV AND NUICBEB — Doubtful cases: rule applies only when court can see from pleading that m.ore than one defense alleged (Hatch 9 Mis 307, 30 NTS 309); should not be determined on motion to separate and number (PvBuell 83 NTS 143; Woods 42 Mis 8, 85 NTS 549); when plaintiff intends to state one cause should not be determined on motion to separate and number but defendant left to remedy of demurrer (O'Brien 5 AD 223, 39 NTS 218; Pope 30 AD 253, 51 NTS 557). More definite and certain: unnecessary also to order complaint so made (Brown 139 AD 632, 124 NTS 396). Sufficiency of allsgations: of any cause is irrelevant on motion to separate and num- ber (Astoria Silk Works 126 AD 18, 110 NTS 175; Benedict 150 AD 137, 134 NYS 720). DENIALS AND DEFENSES OF NE-W MAT- TEB STATED: SEFABATE STATEMENT AND NUMBEBINGi' BEQXTIBES — In reply: to counterclaim, prior rule ('Streeter 157 NYS 698). Stated before and apart: from affirmative allegations of answer (Carpenter 39 Mis 634, 80 NYS 615; South Dakota 87 Hun 293, 34 NYS 362). FArLUBE TO SEFABATEIiY STATE AND NVMEEB: BEMSDIES BABBED — Demurrer: for misjoinder of causes of ac- tion (O'Connor 184 NY 46, 76 NB 1082; Wiles 64 NY 173; Goldberg 60 NT 427; Hevia 155 AD 387, 140 NTS 351; Lamming 63 Hun 32, 17 NYS 328). GBANTING- OF MOTION TO SEPABATEHY STATE AND NUMBEB IS DISCBETION- ABY — Abuse: not shown (Kelsey 100 NT 602, 3 NE 795; PvTweed 63 NT 194; Goldberg 60 NT 427). IiVX.JS CITED— But not applied: (Green 22 Mis 279, 49 NT'S 163; Stieglitz 20 Mis 297, 45 NTS 670- Goossen 11 Mis 86, 32 NTS 814; Zacharias 10 Mis 202, 30 NYS 945; Walsh 15 NTS 96; Crasto 52 Hun 473, 5 NTS 718). To part: of CCP § 507 omitted form Rule 90 (Bank of China 168 NT 458, afg 44 AD 435, 61 NTS 268; Putnam 169 AD 248, 154 NYS 464; Lackomowitz 168 AD 968, 153 NTS 1123; Johnston 115 NYS 141; Priie 128 AD 472, 112 NTS 830; Herb 80 AD 145, 80 NTS 552; Madison 73 AD 112 70 NTS 402; Burkert 35 Mis 318, 71 NYS 144- Staten Island R C 34 Mis 49 68 NYS 550- Cruikshank 32 Mis 152, 65 NTS 678- Conk- lin 37 AD 610, 56 NTS 258; Kelly 25 Mis 6, 53 NTS 825; Shanks 23 Mis 264, 51 NTS 154; Wendling 27 AD 517, 50 NTS 5T)9- First Nat Bk 4 AD 421, 38 NTS 859- Baum's Castorine Co 92 Hun 1, 37 NTS 913; Howd 74 Hun 121, 26 NTS 431- Doug- las Co 3 Mis 373, 22 NTS 1045). Rule 91. Pleadings; how subscribed. A pleading must be subscribed with the name of the attorney for the party or of the party if appearing in person. EDITOBIAX NOTES — Text in italics is new matter, inserted June Source: All except last clause is CCP § 520, 17. 1921. first sentence; last clause is new. CCP Star (*) means read Not into HEADI^INE § 520 revised from CP | 156, part. The in capitals. For illustration see Rule 1 words " with the name of " read " by." rr. 91,92 CLEVENaER'8 RULES OF CIVIL PRACTICE 68 PAEASINQS PBOFERXiY STTBSCKIBED— Answex: amended ('Duval 13 CivP 366. 21 AbNC 214); copy of, with indorsement of attorney's name (•Schiller 11 Civr 304). By olerk: firm name to pleadings after death of one partner and disbarment of sole sur- vivor ('Kaffenburgh 188 NY 55). Complaint: verification to, signed by plain- tiff but not complaint itsself (Barrett 9 Mis 407, 29 NYS 1070; Harrison 1 StR 736); by agent not an attorney (*Wier 3 How 397); initial letter of middle name, omission of, immaterial (Fink 15 Daly 479, 8 NTS 329). Semnirer not signed: by defendant nor by his attorneys ('Ehle 6 Bosw 661, 10 AbP 287). Stipulation: extending time to answer signed by one as defendant's attorney not an ap- pearance preventing service of answer signed by another attorney without substi- tution (Paine Lumber Co 38 AD 68, 55 NYS 971; Benedict 38 NYS 882). WHO ABB PARTIES — G-nardlau: regarded as plaintiff (Anable 24 How 92). OUTSIDE SCOPE OP BTTZiE — Municipal court: pleadings filed in (Perceval 78 Mis 252, 138 NYS 139). BUIiE CITED — But not applied; (Hill 3 How 407). Eule 92. Conditions precedent; how pleaded. In pleading the performanee of a condition precedent in a contract, it is not necessary to state the facts constituting per- formance, but the party may state in general terms, that he, or the person whom he represents, duly performed all the conditions of such contract on his part. BsrroBXAx notes — Source: CCP § 533, first sentence, revised from CP § 162, part. The words "in general terms " read " generally." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into KEADKINE In capitals. For illustration see Rule 1- COITDITIOirS PBECEDENT IN A CON- TRACT: WBAT ABE — Advertising' contract: making monthly pay- ments under, when collateral thereto (•Clegg 72 Hun 395, 25 NYS 565). Architect: certificate of completion and ac- ceptance ("Weeks 141 NT 199; Smith 167 NY 234; Fox 60 AD 528, 69 NYS 912; Smith 160 AD 119; 145 NYS 99). Bill of excliange: presentment, demand of payment, and refusal in action against drawer ('Graham 6 Duer 514). Building contract: setting of beams under (Vanderbeck 26 Mis 714, 57 NYS 156). Clieck: excuse for not giving notice of non- payment of (Garvey 4 Sand 665, 10 NY Leg Obs. 16). Conditions su'bsecLuent. relating to deposit or securities (*David 174 AD 593, 161 NYS 174). Construction contract: demand of perform ance (Case 55 Supr 30), notice that state of work required performance (Case 55 Supr 30). Custom duties: due and timely protests to collector of custom;; in action to recover back (Prickhardt 4 CivP 112). Dairy contract: keeping of specified number of cows for dairying business plus delivery of butter made therefrom (Oakley 11 NY 25). Employment: payment of salesman's ex- penses (RoseoTCo 182 NYS 711). Engineer's certificate: as to value of work (Gillies 73 Hun 507, 56 StR 206, 26 NYS 381); of completion and acceptance (Smith 24 Mis 225. 52 NYS 513; Vandergrift 83 AD 548, 82 NTS 153; 'Pollock 13 Mis 194, 34 NTS 129). Executory contract: fact of performance of, where fulfillment is essential to cause of action (Brooklyn'Heights R Co 151 AD 465, 135 NTS 990). Plre insurance: commencement of action within specified period after fire (Williams 110 AD 573, 104 NYS 100); compliance with requirements of policy of (Williams 119 AD 573, 104 NTS 100); furnishing certifi- cate under Insurance policy " If required " (McManus 48 NTS 820); proof of loss (Clemens 70 -AD 435, 75 NTS 484). Foreign corporation: certificate of compli- ance with law by (Wood & Selick 190 NT 217, 83 NE 21). Imparting agreed .information: for payment In bonds (Winch 11 Mis 390, 32 NTS 244). I^lens: release of materials from all (Fogg 90 Hun 274, 35 NTS 954). Machines: provision that plaintiffs would pay for, on delivery ('Marx 96 Mis 591, 160 NTS 861). Marine Insurance: demand under policy (Hills 39 Hun 557); notice of loss of goods under policy (Hills 39 Hun 557); notice of loss of goods under policy (Hills 39 Hun 557); seaworthiness in contract of (Single- ton 11 NTS 144).- Obtaining sv-Ult]r Act; date of notice of death under (Uss 138 AD 256, 123 NTS 94). Plre Insurance: ('Nellis 16 Barb 61); condi- tions waived and complied with under policy of (Rothstein 122 NTS 209); prop- erty subject " to a mortgage owned by de- fendant to secure payment of " $2,250" (♦Velie 3 Civ P 202); waiver of appraisal under policy (Cohen 121 NTS 1119). Forg'ery: fraud or undue influence ('Day 98 AD 314, 90 NTS 680). Frand: misstatement as to highest market price, plus items affected thereby (•Stern 51 StR 457, 22 NTS 116); defendant "was then informed and knew of facts and cir- cumstances sufficient to charge him with knowledge of the falsity thereof" ('Am Nat Bk 67 Hun 432, 22 NTS 121); names of officers and agents alleged to have com- mitted (Sohellens 32 Hun 235). Frandnlent sale: of real estate (•Williams 57 Hun 128, 10 NTS 895). Gaming: amount lost at each sitting and times of payment (Arrietta 1 AbNS 439). If ccart can see: meaning of allegations with ordinary certainty, pleading is not indefi- nite (McDonald 28 Mis 55, 59 NTS 787). Indlvldnal action: seeming to support action against defendant as treasurer of territory (Seasongood 74 Hun 639, 26 NTS 831). Insurance company: damages for breacK of duty by president of ('Mutual Life Ins Co 118 AD 815, 103 NTS 829); dates or amounts of payments not specifically re- coverable from president of ('Mutual Life Ins Co 118 AD 830, 103 NTS 835); unlawful expenditures and disbursements by officer of (Mutual Life Ins Co 118 AD 822, 103 NTS 840). Joint adTcnture: recovery of profit in CToung 158 AD 760, 143 NTS 931). Judgment: assignment of ("Martin 2 AbP 330). landlord and tenant: "received" lease, alone and unaided by other facts (Kellogg [Jari 3, 1922] 66 NTLJ 1155). lost instrument: where nature and effect stated (•Kellogg 15 AbP 286). Mechanic's lien; conformity of subcontrac- tor's contract with terra of contractor's contract with owner (Broderick 1 AbP 319). Misnomer: of plaintiff corporation (Empire State Sav TSk 81 Hun 184, 30 NTS 756). Moneys borrowed; thru the defendant (•Citi- zens' Cen Nat Bk 115 AD 471, 101 NTS 435; rvg 49 Mis 319, 99 NTS 194). Money received: (•Sloman 8 AbP 5); plus conversion and fraud (Michie 163 AD 407, 148 NT.s! 890). Mortgage: on insured property to secure payment of $2,250 ('Velie 12 AbNS 309, 65 How 1). Motor vehicle: automobile negligent opera- tion, not giving proper or adequate signals and dangerous speed (Harrington 120 AD 659, 105 NTS 75); failure of automobile driver to observe and obey rules thereto- fore properly made and on face regulating highway and its use (Harrington 120 AD 659, 105 NTS 75). Name: defendant had in its employ a certain man by name of C. Q. at pier 51 (Donovan 85 NTS 1113); of defendant's agent who gave false information (•Warsawer 27 NTS 491, 76 Hun 609). ITegllgence: resulting in injury while work- ing in factory (•Mullen 51 Mis 59, 99 NTS 841). Nuisance: Howage of sewage on plaintiff's land (•Deubert 126 AD 359, 110 NTS 403). "On or about": relating to time of making complaint to overseers (Barlow 5 Hun 564). Personal Injury: carelessly and negligently ran and propelled one of its cars upon and against plaintiff ('McCarthy 6 NTS 560); caused by gas explosion in street ('Jack- man 56 Hun 192, 9 NTS 200); name and nature of disease contracted in washing clothing (Hatterman 1 AD 486, 37 NTS 405); negligently and carelessly managed horse so that it knocked plaintiff down ('Agnew 13 CivP 25); physical cause of injury (Tarslowitz 141 AD 64, 125 NTS 649); rock fell from the side wall or roof or other portion of the defendant's mine ('Dunmar 88 AD 181, 84 NTS 669); step- ladder in factory unsafe, gave way and caused injury ('Schmidthunst 15 Daly 93, 16 CivP 143, 2 NTS 706). Principal and sureties; consideration for covenant of surety (McKensie 4 Bos 192). Promissory note: ('Peters 150 AD 249, 134 NTS 811); accurate description or to set forth copies (Gray 5 Bos 666, 10 AbP 66), payment on all claimed under written con- temporaneous agreement ('Brown 6 AbP 237); time of transfer of (McGehee 55 Mis 40, 105 NTS 60). Promoting: and sale of real estate (Saal- field 25 Mis 661, 56 NTS 343). Purchase of stock; in whole or in part with funds of estate (Ruggles 79 AD 641, 79 NTS 940). Purchase Induced: by false representations, but motion denied because right waived (White 44 AD 503, 60 NTS 971). Quo warranto: allegation that relator was by greatest number of legal votes elected ('PxNolan 10 AbNC 471). Receipt : of money belonging to plaintiff ('Bno 4 NT 249). Receiver; place and time of appointment (Gillett 4 Denio 80). Recovery of money; sum claimed to be due on each cause of action for (Clark 3 Duer 645); lost thru fraud of officers of insurance company ('Mutual Life Ins Co 118 AD S28, 103 NTS 839). Release; fraud in obtaining ('Smith 45 Mis 262, 92 NTS 170). Rent: time at which important events occur, in action for (Reiner 23 NTS 185). Sale: damages based on difference in market and contract price ('Friedman 122 AD 258, 106 NTS 780); "hereafter" in complaint for goods, sold (Boyle 186 NTS 357); whether contract in writing and to attach copy CSwartmore Textile Co 184 AD 572 172 NTS 15). Services: rendered to other shippers on like conditions and under similar circumstances (Langdon 15 NTS 255). Sheriffs; fees and charges, claim for money expended to pay them, must specify what fees, etc (Chesbrough 13 How 557, 26 Barb 9). Situated; on the north side of 139th st, east of Rider Avenue and west side of Morris Avenue (Gustaveson 75 Hun 611. 27 NTS 280). Stockholder: recovery for negligence of di- rectors ('Kavanaugh 45 Mis 201, 91 NTS 967). Taxes: action to recover for additional (♦Dudley 37 Supr 412). Tort; breach of warranty of goods ('Mac- Donald 102 AD 375, 92 NTS 618). Trespass: occurrence of acts during plain- tiff's ownership (Home Apartment Co [Jan 30, 1922] 66 NTLJ 1519). r. 102 OLEVENGER'S RULES OF CIVIL PRACTICE 80 Trust! character of undertaken by testator (Marvel 3 AI> 413, 38 NYS 698). Unlawful co]ii'binatlo&: or scheme with In- tent hostile to plaintiff (Singer 44 AD 134, Vendor and purchaser: "failed to fulfill his oblig-ations, under contract to convey land (Van Schaick 16 Barb 89). "Work and labor: nature and character of claim not shown (Farcy 10 AbP 143). MATTER IS COUNTEBCKAIM TOO Iir- DEFIITITE OB UNCEBTAIIT: AMEND- MEN'T OBSERED — Account stated: additional payment for work to be done (*Kelly 26 AD 90, 49 NYS 896). Oil: purchase of, under plaintiff's agree- ment to advance money ('Rouget 57 Hun 119, 10 NYS 751). Sale: legality, willingness to purchase and reasons for refusal ("Pearce 52 Mis 456, 102 NYS 505); standard of quality and sample of goods (Harney Shoe Co 182 AD 496, 169 NYS 848). Work and labor: indebtedness to defendant on account of previous transactions, equal to sum claimed, appearing by account cur- rent rendered (Wiggins 3 Sand 738, 1 CodeR 117); time when services rendered and materials furnished (Peters 159 AD 829, 144 NYS 1068). lOATTEB IN BEFI.V TOO INDErilTITE OB UITCEBTAIM': AMENDMENT OBSEBED — Denials on information and belief: as to whether facts correctly stated in answer (•Steinway 74 Hun 423, 26 NYS 657). Matters on information: when personal knowledge presumed (Winchester 25 AbNC 148. 11 NYS 614). Nature of action: not disclosed (Rlsley 1 MonthlyLawB 52). Promissory note: date of alleged payment (Bennett 71 AD 413, 75 NYS 902). BENIAIiS IN ANSWEB TOO INDEFINITE OB VNCEBTAIN: AMENDMENT OR- DERED — Allegations of the complaint: and each and every one of them, except as hereinbefore controverted or admitted (*Mason 67 StR 590, 33 NYS 689). Charter: dates of and specific reference to recording (Hooper 96 Mis 47, 160 NYS 14). Contract: failure lo admit or deny as pleaded (Borsuk 93 AD 306. 87 NYS 851). Denials and new matter: intermingled (Zim- merman 34 Mis 307, 69 NYS 800). "Denies each and every allegation: contrary to or inconsistent with any of the allega- tions in the foregoing answers, not here- tofore admitted, ignored or denied " (Ham- mond 5 AbNC 105); except in so far as ad- mitted ('Mingst 7 Civ P 314); in said com- plaint contained, not hereinbefore or herein- after admitted, denied or controverted (Pittenger 15 AD 26, 44 NYS 124). Except as to ones admitted: "as to each and every other allegation of the complaint the defendant denies that he has any knowl- edge or information sufficient to form a be- lief " (*Lasher 162 AD 232, 147 NYS 446). Qeneral denial: of each and every material allegation (Moody 21 CivP 89, 15 NYS 119). I^andlord and tenant: hiring and occupation of premises admitted, but denied as to time mentioned in complaint (Lynch 11 CivP 446). Nature of action: not disclosed ('Culver 17 AbP 405, 29 How 479). Partition: that proper parties joined ('Eis- ner 89 Hun 480, 35 NYS 393). Sale: contract for sale and delivery of bat- tery of machines (*T H Symington Co 172 NYS 677); standard of quality and sample of goods (Harney Shoe Co 182 AD 496, 169 NYS 848). Trust deed: failure to perform obligations (•Hughes 45 Supr 114). DEFENSES IK ANSVTEB TOO INDEFINITE OB -UNCERTAIN: AMENDMENT OB- DEBED — Actions: commencement of, mentioned there- in, how, when and where ('Hopkins 28 Hun 436). Answer is indefinite: when the precise na- ture of the defense is not apparent ('Pac Mail SS Co 67 Barb 277). Contract: damages for breach of ('Lowen- thal 18 NYS 523). Corporations: fraudulent representations by (Texas Stand Cotton Oil Co 58 Hun 560, 12 NYS 900). Executors and administrators: recovery on land contract with deceased, fraudulent representations (Corbin 2 AbP 465). Fund: paid and distributed by defendant before action commenced (Hassa 11 StR 891). Husband and wife; alienation of affections (Simmons 21 AbNC 469). If court can see meaning: of allegations with ordinary certainty, not indefinite (•Steiffel 32 Mis 469, 66 NYS 538). Judgment: third person claiming it must show how and in what manner entitled (Martin 11 How 567). Kibel: article partly like and partly unlike (•Rolker 32 AD 224, 52 NYS 1000). Master and servant: specified causes "and others," action- for discharge (Cooper 44 AD 531, 60 NYS 944). Mutual benefit insurance: policy obtained by false representations ('Pittenger 15 AD 26, 44. NYS 124). Fledge: recovery of (Walker 1 AbNS 406). Reference: to ascertain facts cannot be ordered to determine question of certainty, must be decided on examination of answer (Hopkins 28 Hun 436). Belease: date of execution and delivery of (Pigone 115 AD 286, 100 NYS 976). Theater license: character of defendant's (•White 89 Hun 483, 35 NYS 369). PARTIES FIiAINTIFF MISJOINED — Contract: joint interest in ('Marie 83 NY .14). Corporations: stockholders in subsidiary company and stockholders in a holding company ('Holmes 180 AD 409, 167 NYS 840). Executors and administrators: adminis- trator sued before appointment in one ac- tion and after appointment in the other (•Pierce 190 NYS 50). Husband andi wife: damages for alleged fraud in inducing plaintiffs to convey hus- band's land (*Simar 53 NY 298); in action by wife concerning separate property (Palmer 28 NY 242); partition involving wife's separate estate (Brownson 8 How 389). Mortgage lieu; mortgagee and assignee in action to enforce ('Sprague 84 Hun 240, 32 NYS 572). Partnership: surviving partners, against executors of deceased partner (•Berolz- heimer 7 CivP 225). Principal and surety: joint sureties after payment of debt of principal debtors (•Enos 18 Hun 139). Railroads: insurer and owner of property, against railroad setting Are (See Chandler 140 AD 68, 124 NYS 1046); widow as ad- ministratrix and tenants in common as owners in fee in action for damages by construction of (Shepard 117 NY 442). Trustees: of trust under will together with trustees of beneficiary corporation (See Trustees of Sailors' Snug Harbor 77 Mis 494, 137 NY'S 968). Village trustees: to restrain exaction of charges on behalf of village as coplaintiff and inhabitants (Village of Warsaw 184 NYS 327). PARTIES FIAIHTIFF: DEFECT OF— Accounting: by certificate holder of ceme- tery association when action of common or general interest (See Tyndall 198 NY 220). 81 PLEADINGS T. 102 Associatlaii: private voluntary association in action to recover property of expelled lodge (Austin 16 NT 112). Contract: members of theatrical company, each having separate interest under agree- ment to transport company and baggage and personal affects (*Spencer 36 AD 446, 55 NYS 948). Credltor'o suit: in behalf of themselves and all other creditors similarly situated (•Cochran 20 AbNC 114). Executors and administrators: action by one payee on bond of deceased without joining other payees ('Hees 1 T&C 118). Forcible entry and detainer: but one party plaintiff, who is not real party in interest nor authorized to sue by special statute or in a representative capacity (*Novick 110 Mis 379, 176 NYS 387). Former contractors: after work continued by other contractors (See Sullivan HO NY 348). fraudulent conveyance: all creditors of judgment debtors not necessary in action to reach property (*Hammond 20 Barb 378). Husband and wife: husband, libel action by wife (See Ward 10 NYS 421);. married woman suing singly on note constituting separate estate (»Dillaye 31 Barb 132). Indemnity policy: action by assignee (See Rosenbloom 153 AD 23, 137 NYS 1064). Joint contractors: in case of joint debt all should be joined (Wooster 28 Barb 602). Injunction: coowner, unlawful production of play (Nillson 148 AD 678, 133 NYS 293). municipal corporations: cocommissioner. re- covery of expenses against city of NY by commissioners for opening streets (Cor- nell 9 Hun 285). Tenants in common; conversion of undivided one-third of chattel (See Maxwell 24 Hun 448); trespass (De Buy 37 NY 372). Waiver: results by taking objection by an- swer instead of demurrer where defect ap- pears on face, prior rule (Gassett 10 AbP 133). PARTIES DEFENDANT: DEFECT OF— Accounting: single creditor of assignor (•Haines 64 NY 1). Association: clearing house, where not shown that it was person capable of being sued (•Natl Bk of Commerce 17 Mis 691, 41 NYS 471). Cancellation of Instruments : trustee and son having interest in instrument to be can- celled (Ducas 150 AD 397, 135 NYS 35). Corporations: complaint naming two out of three corporate trustees ('Botsford 65 How 145); minority stockholders to com- pel individual defendants to account for secret profits (*McManus 151 AD 663, 136 NYS 223). Creditors Dill: personal representative of de- ceased assignee ('Newbould 14 AbP 80). Directors: all necessary in action to prevent waste of corporate funds (Anderton 41 Hun 571). Excess: of defendant ('Kramer 79 Mis 80, 139 NYS 341; 'Harris 180 NYS 106; •Rosco T Co 182 NYS 711; •Reohtmeyer 50 Barb 55; •McCrea 54 Hun 577, 8 NYS 88; 'Tew 77 AD 454, 79 NYS 286). Fire insurance: one of the beneficiaries (Kent 84 AD 428, 82 NYS 817). Husband: recovery of separate estate by wife ('Hillman 14 How 456). Insolvent trust company: not necessary party in action to enforce statutory lia- bility of stockholders ('Van Tuyl 208 NY 53; •Van Tuyl 153 AD 409, 137 NYS 1147). Joint contract: action against one of two obligors (Eaton 33 How 80). Judgment debtor: to set aside sale, account- and other relief (Wallace 5 How 99). Ibandlord and tenant: liability for tenant's death from poisonous gases from gas meter heater ('Berke 190 NYS 14). mechanic's lien: former owner (Pierce 75 Mis 328, 135 NTS 537). mortgage foreclosure: alleged owner under unrecorded transfer (•Thompson 74 AD 62, 77 NYS 202); executrix as plaintiff and as defendant in capacity of administratrix of deceased mortgagor (•Burtis 15 NYS 412). motion: not proper way to compel plaintifff to add defendants, prior rule (Knicker- bocker Tr Co 111 AD 812. 97 NYS 673, ap dis 186 NY 527). Partition: claimant referred to but not shown to have interest in land (•Smith 12 NYS 905); misjoinder of defendantsi (•Brownson 8 How 389). Partnership: all parties to specified agree- ment in action for accounting (Smith 113 AD 55, 98 NYS 945); copartner for goods sold and delivered (Bridge 5 Sand 210); otiier partners, damages for fraud against one partner (•Hyde & Sons 93 AD 320, 87 NYS 878); surviving partners, action by firm creditor against personal representa- tives of deceased partner (Hotopp 160 NY 524j 55 NB 206); unknown members (*Barls 50 How 506). Principal and surety: each surety severally liable (•Toucey 15 Mis 360, 37 NYS 879). Promissory notes: transferee of note and transferee of stock given as security (In- man 9 NYS 195). Purchaser: action to restrain execution of lease upon sale (Sanders 63 NT 489). Railroads: owner and lessor of railroad, restoration of highway under railroad law (•PxBacon 164 NY 289). Sales: of grapes, on theory either of rescis- sion or termination of contract (•Golisano 190 NYS 24). Specific performance; personal representa- tives of deceased vendor, to compel specific performance of contract (Potter 48 NY 321). Torts: inducing customers whose names and residences unknown to plaintiff to break contract (•!. E Waterman Co 40 AD 570, 58 NYS 168). Trespass: town alleged to have committed acts of but not made defendant (Home Apartment Co [Jan 30, 1922] 66 NYLJ 1519). Trusts; children of deceased sister as re- mainderman (Moore 6 Hun 290). Waiver of objection: results from failure to demur, prior rule (Wemple 15 NYS 87). Wills: father and surviving wife of son, where remainderman limited to issue of testator's daughter (•Jewett 45 Mis 34, 90 NYS 848); surviving children of sons where not ascertainable from will whether sons have children (•Curtis 126 AD 590, 110 NYS 658). CAUSES OF ACTIOIT IMPSOPEBl^V UNITED — Adulteration: of milk, penalties for (PvKoster 50 Mis 46, 97 NYS 829). Assignment: to declare fraudulent and for accounting (•Hammond 20 Barb 378); to set aside on ground of fraud involving various parties (Zoccolo 25 Mis 246, 55 NYS' 58); void on face and made to defraud creditors (•Pittsfield Nat Bk 60 Hun 130, 14 NYS 557). Attorney: recovery of independent retainers (Adams 7 Mis 468, 27 NYS 993). Bank; for balance of deposits, conversion of check, and negligence of officer (Salter 150 AD 639, 135 NYS 702). Carriers: breach of shipping contract by joint (•Hirsch 200 NY 263); discrimina- tion in transmission of merchandise be- tween certain stated times ('Langdon 15 NYS 255). Contract: affirmance and rescission of (Paulks 40 Supr. 70); all parties defendant not affected by (Nichols 94 NY 22), rescis- sion of and accounting (Van Liew 6 T&C 648); contract and tort (Nichols 94 NY 22- Curtis 165 NYS 427; Hart 15 Daly 391, 27 StR 813; Gerould 85 Hun 500, 33 NYS 202)- express and quantum meruit (•Barrett 12 CivP 105n; *Goetz 12 CivP 104; •Blank 37 Hun 101; •Longprey 31 Hun 432); plus personal injuries and to property (Town- send 7 CivP 56); recovery of money paid r. 102 OLEVENGER'S RULES OF CIVIL PRACTICE 82 because obtained by fraud or because per- formance refused ('Freer 61 NY 492); specific performance with breach of trust and for value of stock (Hannahs 28 AbNC 317, 19 NTS 883); with tort involving mis- management and misconduct (McClure 13 AD 274, 43 NYS 209). Corporation: and directors, rescission of stock subscription or recovery ('Mack 83 AB 242, 82 NYS 130, rvd 178 NY 525); conspiracy and accounting as trustee (•Pierson 61 How 134); injunction against It, to dissolve it and for receiver, question not decided, but that motion should be considered before receiver appointed (PvManhattan R Co 9 AbNC 448); judg- ment creditors of insolvent corporation, to have judgments declared void and sales set aside ('Wood 92 Hun 22, 37 NYS 885); recovery of commissions in selling bonds, against two, with separate interests (Fox- all 162 NYS 588); sequestration of property and to charge stockholders individually (•Woodard 21 CivP 23, 15 NYS 128); stock- holders suit based on two grounds of in- validity of exchange of new securities (•Polzt 142 AD 755, 127 NYS 782). Creditor's bill: covering transactions relating to real and personal property (*Newbould 14 AbP 80); to set aside as fraudulent transaction (*Barnes 16 WkD 191). Denial of motion: does not prejudice defend- ant where plaintiffs counsel stipulates in court as to which action he will rely on (•Van Tassell 8 Mis 26, 28 NYS 73). Directors: conspiracy to deprive plaintiff of stock and to set aside acts increasing stock (Witherbee 142 AD 407. 126 NYS 954); independent tortious acts wasting corpo- rate funds (Nash 90 Hun 354, 35 NYS 940); personal liability for excessive debt and for corporation's failure to file report (Motley 13 Mis 758, 35 NYS 184); plus stockholder, to charge on subscription and signing false annual report ('Richards 14 Daly 334); recovery for their negligence in man- agement of bank (O'Brien 6 AD 509, 39 NYS 707; afd 143 NY 377). Divorce and separation: (Zorn 38 Hun 67). Dower: in two distinct parcels occupied by different persons (Peary 18 StR 455, 2 NYS 322). Drug'gist and physician: negligent prescrib- ing and preparing medicine (See Cohen 90 Hun 266, 35 NYS 935). Exchangee of property; recovery of back taxes and for misrepresentations as to character of property ('Hermann 192 AD 608, 183 NYS 220). Executors and administrators: against ex- ecutors and other individuals (Blake 9 NYS 933); heir or devisees where demand estab- lished by creditor before surrogate and estate concealed or wasted ('Littell 7 Hun 485); executrix, as ofHcial and as individual to apply income of estate to pay taxes (Clark 50 How 178). Palse imprisonment: and recovery of money collected on judgment not for a tort (Flynn 50 Barb 73). fraud: and recovery of money paid for stock ('Stirrup 77 Mis 437, 136 NYS 1052). Praudulent couveyauce: to set several against various defendants ('Eldridge 12 How 547); to set aside and annul liens ('Mahler 7 StR 159, 43 NYS 512). Husband and wife: alienation of wife's affection, plus subsequent conversion of personal property (Crowell 73 NYS 1013, afd 160 NT 572); recovery of separate estate by wife from defendant who wrong- fully obtained title to her real estate ('Hillman 14 How 456); single action against wife or against both jointly ('Tew 174 NY 272); slander by husband and by wife (Malone 15 AbP 421). Inconipetent: by committee to ascertain his interest in property and extent of creditors' liens ('Holmes 6 NYS 943). Injunction: against action by defendant. with action to annul contract and cancel mortgage unconnected therewith (Allegany & K R Co 25 NYS 71); against violation of contract included in franchise as to mu- nicipal and citizens' rate ('Village of War- saw 184 NTS 327). Insurance company: recovery of money lost thru fraud of officers of ('Mutual Life Ins Co 118 AD 828, 103 NTS 839); general accounting against officer of ('Mutual Life Ins Co 118 AD 822, 103 NTS 830); mere negligence and wrongful acts of agent of company, election before trial not required ('Mutual Life Ins Co 118 AD 830, 103 NTS 835). Intoxlcatlnif Uauors: injury from sale to some person Dy different defendants at different times and places (Jackson 5 Hun 530). Joint tort feasors: single cause of action (Sartori 149 AD 241, 133 NTS 720); sur- vivors and representations of deceased (Dennin 96 Mis 247, 160 NTS 647). Judgments and morterages: to declare void as against different defendants (Market & Fulton Nat Bk 7 Mis 207. 27 NTS 677). l^andlord and tenant: recovery of possession and rents and profits ('PvMayor 8 AbP 7j 17 How 66). Ucense: refusal to give and entry without, not affecting all defendants (McKenzie 9 Mis 16, 29 NTS 18). Lloyds Insurance: underwriters under Lloyds policy of insurance making each severally liable (Strauss 23 AD 360. 48 NTS 239). Uarrlag'e induced by fraud: and assault and battery (See Blossom 37 NT 434). master and servant: action for injury against master and third person ('Lynch 94 AD 408, 88 NTS 70); common law and statutory recovery for injury by act of several defendants (Cott 189 AD 571, 179 NTS 488); common law action together with one under either a state or federal statute (Payne 141 AD 833, 126 NTS 1011); loss of services, damages and to set aside release of claim ('Jackson 74 Hun 25, 26 NTS 156); partnership for which he worked and corporation, alleged to have assumed obligations of firm (Leszynsky 170 AD 514, 156 NYS 494). Mechanic's lien: foreclosure against owner and transferees ('Tisdale 8 Hun 19); plaintiff as trustee and bankrupt had filed liens (Davis 75 AD 618, 78 NTS 336). Motion denied: where purpose to compel plaintiff to elect in advance of trial be- tween two separate causes of action ('Sey- mour 71 AD 421, 75 NYS 903). Municipal corporations: different acts of fraud in obtaining money from municipal corporation ('PvTweed 63 NY 194). XTuisance: abatement and damages for in- jury by several plaintiffs (Burghen 123 AD 204, 108 NYS 311, rvg 53 Mis 457, 104 NYS 1028); obstruction by one defendant of right of way and transfer to another de- fendant (Hess 29 Barb 391). Partnership: action against three as part- ners and one as an individual (Polack 56 AD 365, 67 NYS 753); against surviving partner and administrator of deceased for same debt (Wright 6 Bosw 600, afd 32 NY 691); recovery of debt against surviving partner and personal representative of de- ceased partner (Hlggins 2 Duer 650). Penalty: under statute for demanding ex- cessive fare and personal Injury (Sullivan 1 ClvP 285). Personal Injury and to property: resulting from acts of different persons (Fargo 163 NYS 1071). Principal and surety: company on bond of indemnity (See City of NY 148 AD 146, 133 NYS 118). Pronxissory notes: become due by reason of two defaults, nonpayment of interest and attachment ('Harden 89 Hun 417, 35 NTS 405); maker and guarantor (Barton 6 Hun 60); on two made by defendant ('Bass 38 83 PLEADI'NGH IT. 102, 103 NT 21); recovery on and to foreclose lien to pay It ('Farmers & Mech Nat Bk 17 StR 381, 15 CivP 250). BaUroad: specific performance of contract to purchase another, and to reorganize, with damages for breach of agreement (•Stanton 15 CivP 296). Kecelver: combination of assignees and debtors to defraud judgment creditor, with demand that securities be declared void and receiver appointed ('Bk of British N A 6 How 379, 1 CodeR 325). Receiver and Individnaliy: conversion of goods (Perlclns 82 Hun 366, 31 NYS 474); where only liable individually (Brandt 10 Mis 234, 31 NYS 112). SefOTmatlon: of conveyances, large number of persons induced by defendant's fraud to convey to him (Wheeler 34 Mis 604, 70 NYS 381); of mortgage, altho multi- plicity of relief asked ('Gottlieb 136 AD 1, 120 NYS 210). Sales: plaintiff required to elect whether to sue defendant as promisor or guarantor (Partridge 20 WkD 320); recovery of price and to enforce lien to satisfy claim ('Cook 3 Duer 643). Separation actions: each against one only of two different defendants (O'Connor 90 Mis 77, 152 NYS 955). Slander and assault and battery: (Anderson 53 Barb 238). Slander of title: and trespass (Dodge 108 NY 445). Stockliolders : failure to make and record certificate and to file annual report (Wiles 94 NY 173, rvg 3 Hun 604); representative suit, trustees and others connected with fraud (See Holmes 180 AD 409, 167 NYS 840). Syndicate: bill to readjust accounts ('Lo- gan 54 NYS 462). Specific performance: with several distinct causes of action upon contract (Bryant 67 AD 625, 73 NYS 783). Taxpayers action: against various tax offi- cials (Wallace 68 AD 191, 74 NYS 116). Tort: and contract to refrain from suing for damages occasioned thereby (Ronker [Dec 2, 1921] 66 NYDJ 762); inducing cus- tomers to violate fixed price contract ('L E Waterman Co 40 AD 530, 58 NY'S 168). Trespass: and charge against sureties on bond (Hart 7 NYS 753); and ejectment and trespass quare clausum fregit (Budd 18 Barb 494). Trusts: as trustee and individual capacity ('Marie 83 NY 14); declare void and for relief against deed from defendant exec- utors to third parties ('Henderson 3 StR 197, afd 44 Hun 420); restoration of money to trust fund ('Zimmerman 108 NT 282). BTTKE AFFIiICABZiE — Bill of particulars: does not limit or affect right to have complaint made definite (Rubens 21 AbNC 464, 2 NYS 30; Viner 92 AD 542, 87 NYS 257); nature of defense clear ('Rouget 57 Hun 119, 10 NTS 751); not proper remedy (Pigone 115 AD 286, lOO NTS 976); proper remedy ('McKinney 12 How 22; 'Meredith 97 Mis 69, 161 NYS 1; 'Harney Shoe Co 182 AD 496, 169 NTS 848; 'Harrington 120 AD 659, 105 NTS 75; 'Gould 112 NYS 518; 'Dunmar 88 AD 181, 84 NTS 669; 'Madden 10 Mis 27, 30 NTS 1052; 'Whitner 11 NTS 757; Langdon 15 NTS 255; 'Lowenthal 18 NTS 523; 'Tilton 59 NT 176). Corporation: charged with having mad© fraudulent representations (Texas Stand C Oil Co 58 Hun 560, 12 NTS 900). Demurrer: appropriate remedy ('US Print- ing & Litho Co 183 AD 513, 170 NTS 314). Bvidence: of opponent not obtainable by mo- tion CDurant 15 CivP 193, 2 NTS 389). misjoinder: of defendants ('Brownson 8 How 389; 'Rosco T Co 182 NTS 711; 'Kramer 79 Mis 80, 139 NTS 341- 'Harris 180 NYS 106; 'Richtmeyer 50 Barb 55; 'Barnes 59 Hun 373, 13 NYS 77; »Tew 77 AD 454, 79 NTS 286, afd 174 NY 262; 'Paxton 26 AbNC 389; 'Adams 87 AD 312, 84 NTS 323; *NT & N H RR Co 17 NT 592); of plaintiffs, prior rule under CCP (•Allen 38 NT 280). Netrative pregnant: ('Kelly 25 Mis 6, 53 NTS 825). Only when precise meaning': or application is not apparent (Kavanaugh 45 Mis 201, 91 NTS 967; Day 98 AD 314, 90 NTS 680). Promissory note: complaint omitting to mention payee ('White 13 NT 83, 11 How 36). When information: sought is a material fact of the cause of action or defense (Hooper 96 Mis 47, 160 NTS 14). 'Where legal conclusions: are asked ('PvNT Cent Ry Co 15 NTS 245). BXriiB CITBD — But not appUed: (Crane 118 NT 648; Zim- merman 108 NT 282; Lorillard 86 NT 384; Goldberg 60 NT 427; Marie 83 NT 14; Hale 49 NT 626; Greenfield 47 NT 430; Feltrech 47 NY 42B; Olcott 39 NY 436; Kerr 35 NY 331; PxCrane 12 NY 433, rvg 16 Barb 371; Seeley 13 NY 542; Hagedorn Merz Co 165 NYS 101, dis op; Loew 144 NYS 546; Up- dike 156 AD 381, 141 NYS 587; Kronau 151 AD 355, 135 NYS 404; Kraus & Co 150 AD 122, 134 NYS 694; Carroll 122 NYS 694; Babcock 122 AD 73, 106 NYS 642; Palmer 122 AD 282, 106 NYS 707; Ebling Brewing Co 103 NYS 93; Horowitz 98 NYS 53; PvBuell 85 AD 141, 83 NYS 143; Hasberg 80 NYS 867; McGrath 26 Mis 862, 56 NYS 398; Logan 54 NYS 462; Duryea Watts Co 20 Mis 544, 46 NYS 437; Steiglitz 20 Mis 297, 45 NYS 670; Williams 14 Mis 79, 35 NYS 263; Dexter 86 Hun 433, 33 NYS 901; Adams 59 Hun 127, 13 NYS 118; Pfandler P P Co 3 NYS 611; Peart 48 Hun 79; Robarge 18 AbNC 363; Ball 38 Hun 11; Woodbury 2- AbP 402; Packard 7 Cow 434; Hewett 24 How 366; Howell 6 How 221; Spies 5 Duer 662; Smith 2 Sand 702; Farm & Cit Bk 6 Bos 181, afd 33 NT 69; Ladd 37 Supr 35. Rule 103. Striking out matter contained in a pleading. If any matter, contained in a pleading, be sham, frivolous, irrelevant, redundant, repetitious, unnecessary, imperti- nent or scandalous or may tend to prejudice, embarrass or delay the fair trial of the action, the court may order such matter stricken out, in which case the pleading will be deemed amended accordingly, or the court may order an amended pleading to be served omitting the objectionable matter. BDITOBIAI^ NOTBS— Source: first two sentences of CCP § 537 combined with CCP § 538 and CCP § 545, first sentence, and English Practice Act, order 19, rule 27, part, and rewritten. CCP § 537 revised CP § 247, as amended by L 1877, o 416, and L 1879, c 542. CCP § 538 revised from CP § 152, amended by omitting the words, " and irrelevant," which were added in 1861, "and have served no useful purpose, proportioned to the confusion which they have created." CCP § 545 re- vised from CP § 160, first sentence, amended by including scandalous matter in a plead- ing, as amended by L 1877, c 416. CCP § 537 read: "If a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the ad- verse party, of not less than five days, may apply to the court or to a judge of the r. 103 OLEVENQER'8 RULES OF CIVIL PRACTICE 84 court for judgment thereupon, and judg- ment may be given accordingly." CCP § 538 read: "A sham answer or a sham defense may be striclien out by the court, upon mo- tion, and upon such terms as the court deems just." CCP § 545, first sentence read: "Irrelevant, redundant, or scandal- ous, contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby." English Practice Act, order 19, rule 27, reads: "The Court or a judge may at any stage of the proceedings order to be struck out or amended any mat- ter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if they or he shall think fit, order the costs of the application to be paid as between solicitor and client." Text In ItaUca is new matter, inserted June 17, 1921. Civil Practice Act references; Pleading what to contain, CPA § 241. Star (*) means read ITot into SEADKIHi: in capitals. For illustration see Rule 1. COMFI^AIHrF MATTEB KEI^D SHAIff: STBICKIiN OUT — Bad faith: action for breach of agreement to fill orders obtained by plaintiff on commis- sion (»Wayte 187 NTS 276). Cheating and fraud: action for breach of agreement to fill orders obtained by plaln- tiif on commission ("Wayte 187 NYS 276). ANSWER MATTER HEIiD SHAM: STRICKEN- OUT — Accommodation character: of note sued on alleged and consideration denied, affidavit of defendant and agreement attached thereto reciting indebtedness to plaintiff's assignor (Jones 29 Mis 517, 61 NTS 972). Affirm.atiTe defense: duly verified, unless de- fendant's own aflldavit shows falsity (•Heine & Co 65 Mis 51, 119 NYS 191); in action on note, alleging sale of bonds and failure of plaintiff to account for value of said bonds, affidavit of plaintiff states no sale occurred, but that bonds were depos- ited as collateral security for debt sued on, and defendant not deny such statement (First Nat Bk 4 AD 421, 38 NYS 859). Amovmt and value: of goods sold denied, sale admitted, prior promise to confess judg- ment (Henry Huber Co 21 NYS 768). Another action pending': mortgage foreclos- ure ('Mutual Life Ins Co 58 AD 188, 68 NYS «80; Adams 11 AbNC 369). Appropriation ezhansted: claim for gas fur- nished city department (NY'Mut Gas L Co 49 How 227). Assignment: of bond and mortgage to plain- tiff, Information as to denied, mortgage foreclosure (*Ginnel 71 AD 540, 75 NYS 887). Consideration denied: action on note (*Heine & Co 65 Mis 51, 119 NYS 191), and alleged that note was given for accommodation, af- fidavit of defendant and agreement attached thereto recite indebtedness to plaintiff's as- signor (Jones 29 Mis 517, 61 NYS 972). Control; of hallways by defendants as lessees of building denied on information and be- lief (•Roskowitz 151 AD 636, 136 NYS 192). Deductions: from plaintiff's claim, show right to ('Fosdick 29 How 309). Delivery; of note sued on to plaintiff by law- ful owner denied (First Nat Bk 44 Mis 374, 89 NYS 995). Denial: ('•Rockowitz 151 AD 636, 136 NYS 192); and allegations of payments other than those alleged in complaint, mortgage foreclosure (♦Reese 61 AD 64, 69 NYS 1115). Doubtful case; ('Kay 44 NY 565). Palslty of defense; so clear that no matter of substantial litigation involved (PvMcCum- ber 18 NY 315, afg 27 Barb 632, 15 How 186). Praud: and payment, action on note ('Stru- ver 9 AbP 23, 2 Hilt 47). Prandnlent representations: as to Invention, action for patent royalties (•Zimmerman 77 AD 329, 79 NTS 159). General denial; (•Schmidt 34 Mis 693, 70 NTS 1011); verified, based on information and belief (*Henderson 5 ClvP 221). G-eneral issue: (PvMcCumber 18 NT 315, afg 27 Barb 632, 15 How 186); raised ('Robert- son 54 AD 191, 66 NYS 632): sequestration of property of corporation (•Wilson 56 Hun 194 9 NYS 189). Incorporation; of plaintiff and other matters denied, action on note (Elizabethport Mfg Co 13 AbP 86). Information ana liellef: basis of denial (•Hopkins 76 AD 365, 78 NYS 459), of con- trol of hallways by defendants as lessees of building (•Roskowitz 151 AD 636, 136 NYS 192), of slander ('Howe 57 AD 357, 67 NTS 1108); basis of general denial, verified (•Henderson 5 CivP 221); denied as to, al- legations about bond, mortgage foreclosure (•Alexander 65 AD 174, 72 NYS 640), whether plaintiff lawful owner of note sued on (*Lefferts 1 AbP 41). Judgment: against some defendants for same cause, action on partnership liability (•Farnsworth 10 NYS 764). Jury trial; right to does not preclude strik- ing sham answer of general denial ('PvMc- Cumber 18 NT 315, afg 27 Barb 632, 15 How 186). Knowledge denied as to: compliance with Workmen's Compensation Acts which are of record, motion to strike as frivolous proper method of attack (Morris 108 Mis 143, 177 NYS 673); demand for payment and notice of nonpayment of note sued on (•Bailey 13 AbP 354); matters presumptively within defendant's knowledge, motion to strike as frivolous proper method of attack (Maiden 182 NYS 225); whether plaintiff a corpora- tion, action on draft (Commonwealth Bk 11 AbNS 227). Knowledge or information denied as to: alle- gations of due date of defendant's note, that he did not pay. that he gave renewal note for less, that he did not pay difference or discount (McNeil Lumber Co 154 NYS 872); discount of defendant's renewal note and payment of difference in amount and of discount by plaintiff, denied (•McNeil Lum- ber Co 154 NYS 872); making of renewal note sued on or its discount by plaintiff, denial by wife of maker (•McNeil Lumber Co 154 NYS 872). legal conclnslons: denied, denials nullified by admissions (PvMcCumber 15 How 186, 27 Barb 632). Iilmitatlons : statute of ('Schoonmaker 7 StR 430). Mistaken constmction: of agreement basis of affirmative defense, mortgage foreclosure (•Barney 37 StR 633. 13 NYS 685). Notice: of nonpayment of note sued on and knowledge of demand denied (•Bailey 13 AbP 354). Occurrences liefore existence of coporation; action against stockholder for debt (Collins 7 Rob 623). Ownership: by plaintiff of note sued on de- nied (Fleury 5 Sand 646), and asserted that payee still owner (Brassington 22 NYS 761, 23 ClvP 146, 3 Mis 258, 52 StR 171, afg 20 NYS 659. 48 StR 514). Payment; and fraud, action on note ('Stru- ver 9 AbP 23, 2 Hilt 475); other than those alleged in complaint, mortgage foreclosure (•Reese 61 AD 64, 69 NYS 1115). Seizin: breach of warranty of, mortgage foreclosure, deficiency judgment (•Merrit 58 Hun 372, 12 NYS 132). Undisputed matters; ('Robbing 5 WkD 537). Usury: action on note (Bailey 13 AbP 354). 'Value; and amount of goods sold denied, sale admitted, prior promise to confess judg- ment (Henry Huber Co 21 NYS 768). 'Violation of building law; denial as broad as allegation of complaint ('Mayor 17 Hun 688). 85 PLEADINGS r. 103 COVHTERCLAZMC MATTER HEI.D SHAM: STRICKEN OUT— Samatres: for nondelivery of real estate on time and for removal of fixtures in action for price (•Fettrioh 47 NY 426). ANSWER HATTER HEIiD FBIVOZiOUS: STRICKEN OUT— Acceptance of draft: sued on as bill drawn by company and not by treasurer individ- ually (Commonwealth Bk H AbNS 227). Acauisition of g'oods: possible within reason- able time at price less than amount given defendant to purchase them, information and belief basis, action for conversion of money (Carlson [Deo 6, 1921] 66 NYLJ 811). Agreement to renew; on request, action on note (Fleury 5 Sand 646). Another action pending': brought by junior mortgage making first mortgagee a party, mortgage foreclosure (Adams 11 AbNC 369); mechanic's lien foreclosure (•Webb 16 AbP 190); on note sued on (Hecker 5 AbP 453, 6 Duer 687); partition (*Middlebrook 21 NYS 398, 66 Hun 610, 50 StR 149). Argument necessary: to show frivolous character (»Robbins 5 "WkD 537). Assignment to plaintiff denied: mortgage foreclosure <*Beese 61 AD 64, 69 NYS 1115). Seniail: of each and every allegation of com- plaint not specifically admitted or denied (•Owens 12 NYS 700). Employment: to do work sued for denied (•Dinsmore 67 Barb 341, 4 Hun 643). Entire defense: (•Johnston 115 NYS 141); not stricken for frivolity (•PvMcCumber 18 NY 315, afg 27 Barb 632, 15 How 186). Entitled to: payment knowledge denied as to whether plaintiff suing on note is, making of note and plaintiff's possession not denied (Higgins 2 Duer 650); sum of money de- manded or any part thereof, denial that plaintiff la (Drake 4 EDS 34, 1 AbP 203, 10 How 377). Entire answer: not stricken for frivolous- ness, motion for judgment proper remedy (•Hull 8 How 149, 1 Duer 649). Poondation of claim sued on: denial striking at, action for work and labor (♦Dinsmore 67 Barb 341, 4 Hun 643). Traud: and payment, action on note (*Stru- ver 9 AbP 23, 2 Hilt 475). General denial: on information and belief (•Henderson 5 CivP 221). Bolder of: draft sued on, denial that plain- tiff payee is (Witherspoon 15 How 266); note sued on, denial on information and belief that plaintiff is (»Nye 123 NYS 937). Indebtedness: to plaintiff on promissory note sued on denied (Nye 123 NYS 937). Indorsement: of bill of exchange sued on by payee knowledge as to denied (♦DeSantos 11 How 477). Information and belief basis of: denial as to plaintiff being owner and holder of note sued on ('Nye 123 NYS 937); general denial (•Henderson 5 CivP 221). Installments: price payable in, and notice not filed in time, mechanic's lien foreclosure (•Webb 16 AbP 190). Justiflcation : matters in, libel action (Daly I AbNC 150). Knowledge denied as to; matter of public record, presumptively false and frivolous (Maiden 182 NYS 225); plaintiff's owner- ship of note sued on, or whether he is en- titled to payment, making of note and plaintiff's possession not denied (Higgins 2 Duer 650); recovery, docketing, entering, and assignment of judgments, return of execution, giving and filing chattel mort- gages and assignment thereof (Maiden 182 NYS 225). Knowledge or information deniea as to: filing notice of intention to sue city (Bogart 128 AD 139, 112 NYS 549); indorsement of bill of exchange sued on by payee (•DeSantes II How 477) ; lawful ownership by plaintiffs of note sued on (•Metropolitan Bk 1 AbP 185, 4 Duer 630); matters of public record presumptively frivolous (Harley 210 NY 405, 104 NB 946); whether plaintiff is ownsr or holder of bill of exchange, complaint allegating bill payable to plaintiff and de- livered to him (DeSantes 11 How 477); whether plaintiff suing for goods sold a corporation (see Crucible Co 9 AbNS 195, 57 Barb 447). ^limitations: statute of (•Schoonmaker 7 StR 430). Notice: not filed in time and price payable in Installments, mechanic's lien foreclosure (•Webb 16 AbP 190); of intention to sue city, denial of knowledge or information as to filing (Bogart 128 AD 139, 112 NYS 549). Oral agreement: contradicting note sued on (Zinsser 66 AD 514, 73 NYS 287). Organization: due, of plaintiff corporation denied (Mayor 17 Hun 588). Ownership: by plaintiff of note sued on, de- nied on information and belief (•Nye 123 NYS 937), knowledge as to denied, making of note and plaintiff's possession not denied (Higgins 2 Duer 650); by plaintifl: payee of draft sued on denied (Witherspoon 15 How 266); lawful, by plaintiffs of note sued on information denied (*Metropolitan Bk 1 AbP 185, 4 Duer 630); of goods sold in prin- cipal and not in agent suing therefor (Rellly 13 AbP 255, 22 How 93). Parts of answers (•Lee 1 LawB 17, prior rule). Payment: and fraud, action on note ('Stru- ver 9 AbP 23, 2 Hilt 475). Remedy for frivolity: in whole or in part, motion for judgment, not motion to strike out, former rule under CCP (Hagerdorn- Merz Co 178 AD 483, 165 NYS 99). RecLuest to do wori: sued for denied (•Dins- more .67 Barb 341, 4 Hun 643). Res adjudlcata; action on note (•Nat Bway Bk 13 NYS 526). Sale of lands; to defendant's grantor by special guardian of infant as heir of father when father was still alive, foreclosure of mortgage assumed by defendant (Parkinson 74 NY 88). COTTNTERCI-AIM MATTER KEIiD PRIVO- I.OTTS: STRICKEN OUT — On motion; counterclaim cannot be (Fettrich 47 NY 426). REFIiV MATTER HEIiD PRIVOXiOtTS: STRICKEN OTTT — Deny counterclaim.: for rent, action to annul lease (*Wood 3 AbNS 467). BEMURRER HEIiB PRITOILOUS: STRICKEN OUT — Argument necessary: to show frivolity (»Cook 88 NY 37; 'Wise 47 Hun 306; •Kips Bat B & M Co 174 NYS 686). Bad faith; frivolity not so clear as to indi- cate ('Posner 149 AD 272, 133 NYS 704). Bank: unlawful acts of cashier, facts not sufficient to constitute cause of action (•Rankin 93 AD 181, 87 NYS 539). Joinder: as defendant of part owner of mort- gage in foreclosure without explaining non- joinder as plaintiff, and part assignment of moneys secured by bond and mortgage (•Sixpenny Sav Bk 2 AbP 414, 12 How 543). Iiibel; facts not constitute cause of action (•Valsto 73 AD 145, 76 NYS 771). Nonpayment: of liquidated damages not al- leged in complaint ('Posner 149 AD 272, 133 NYS 704). Note; against maker and indorser (•Chemical Nat Bk 9 AbNC 301); complaint not allege plaintifl had interest in when action com- menced CNible 7 AbP 447n). Proper remedy: motion for judgment, not motion to strike (Farm & Mech Bk 19 StR 464, 3 NYS 50). Residuary legatees: allege all necessary .par- ties in action by one for his share (*Lieavv 22 Hun 499). DEMURRER HEI^D PRIVOIkOUS: JUDO. ME NT GIVEN— Argum-ent necessary; to show frivolity (•Hll- dreth 113 AD 916, 98 NYS 582). r. 103 OLEVEHQER'S RULES OF CIVIL PRACTICE 86 Cancel note: complaint show plaintiff gave "ote to defendants without consideration and had them issue an attachment thereon to prevent suit by a third person, whom he ^.S?,^^ ^'^^ "° valid claim against him (♦White 10 AD 220, 41 NYS 818). Causes of actioa are Improperly united: com- plaint, plainly sets forth two entirely dis- tinct and different causes of complaint, in- consistent with each other, negligent and unskillful conduct and Intentional and will- ful wrong doing ('Barkley 28 Mis 459, 59 NYS 1038). Corporation: lack of capacity to sue, action on note (*Elizabethport Mfg Co 13 AbP 86). Decision of one justice basis of demurrer: another justice cannot hold frivolous ('Lat- timer 9 AbP 207n). Defect of parties: doubtful, person named in attorney-general's complaint as person en- title to office (*PvMcClellan 53 Mis 469, 105 NYS 223). Foreclose m.ortgag'e: complaint allege assign- ment of mortgage but not of bond secured thereby (*Manne 49 AD 276, 63 NYS 162); facts not sufficient to constitute cause of action ('Selover 21 NYS 661, 50 StR 228); ground no cause of action stated, complaint allege defendant has or claims to have some interest in premises subsequent to lien of mortgage, but contain no prayer for affirmative relief against demurrant (Olin 26 Mis 488, 57 NYS 473); plausible supposi- tion that statute repealed (•Chauncey 15 AbP 106). Guaranty: made in Tennessee and void in New York because no consideration ex- pressed, complaint not plead laws of Ten- nessee with respect to expressing considera- tion (•Cahill Iron Wka 27 NYS 927, 30 AbNC 450). Insuflclent facts: because complaint finds to show plaintiff bank incorporated and has capacity to sue, and does not allege accept- ance of bill of exchange in writing (Bk of Lowville 11 How 216). Joinder: of part owner of mortgage as de- fendant without explaining why not made plaintiff, and part assignments of money secured by mortgage ('Sixpenny Sav Bk 2 AbP 414, 12 How 543). 3jlbel: complaint fail to allege words com- plained of to be spoken of and concerning plaintiff, alleging they were published "with malicious intent and purpose to injure busi- ness of pla.intiff (*NY & Westchester Water Co 7 AD 609, 40 NYS 272). Mechanic's lien: foreclosure reply embraced all allegations of counterclaim in one de- nial (Perry 82 AD 94, 81 NYS 586, afd 178 NY B59); undertaking to discharge any judgment, not clearly bad on face ('Hopper 3 Mis 340, 22 NYS 1050). Note: failed to allege notice of protest to indosers and exclude such notice by alleg- ing notice to maker (*Cook 88 NY 37); fail to allege title or that makers are part- ners (Singleton 9 StR 600); fail to state sufficient facts^ other grounds (Appleby 2 Sand 673, 3 CodeR 206); insufficiency of complaint in action against maker and surety, showing on its face that demurring defendant a surety (Osgood 10 AbP 134, 20 How 72); objection directed to form of prayer in reply (Farm & Mech Bk 19 StR 464, 3 NYS 50). Notice of m.otlon for "order:" striking de- murrer CRae 6 How 21, 1 CodeR 185). Partnership: recovery on firm note: alleged defect of parties defendant (Kirkbrldge 37 Mis 519, 75 NYS 1036). Personal Injury: complaint attempting to state cause of action for, at common law and under employer's liability act ('Shaw 99 AD 514, 91 NYS 114). Prior decision: directly in point adverse to demurrer (Bank of Wilmington 4 AbP 226); holding .similar complaint sufficient, action on note (Phelps 9 AbP 206, 19 How 143). Bent: monthly hiring, complaint fail to al- lege renewal of agreement each month and State mere legal conclusion as to agreement (•Kips Bat B & M Co 174 NYS 686). Bepresemtatlve capacity: of plaintiff suing as administrator not shown (Bright 5 Sand 433). Supplemental complaint: issues raised by an- swer to original complaint undetermined (•PvWestchester Traction Ck) 56 Mis 364, 106 NYS 389). Transfer of stock on corporate IiooIeb: com- plain not showing how plaintiff acquired title to stock (Beal 4 CivP 18). "Work and labor: clerical error in use of word furnished instead of paid (McCarron 15 AbNC 282). OEDCURREB HEl^D PRIVOIiOUS: NEW FXEAOXNG- AI^IiCWED — Clerical error : that wagon ran into " plain- tiff " instead of " plaintiff's intestate " (King 113 AD 90, 98 NYS 891). Permissible: (Currie 4 Sand 690). DECISION ON PRIVOIIOUS PXiEADrNG' HE£D JUDGMENT — Granting' motion: on demurrer and allowing time to answer (King 5 How 30). COMFKAINT MATTER HELD IRRELE- VANT: STRICKEN OUT— Acknowledcrment of indebtedness: and prom- ise to pay notes given for goods sold (Far- rington 68 NYS 857). Administrator: character as, action on note of decedent (see Bright 5 Sand 433). AETffravatlon of damages: matters in, show- ing animus, action for assault, false Im- prisonment* and conspiracy to injure (Molony 15 How 261). Aersrleved: court unable to see that defend- ant is or that striking out will not harm plaintiff ('Palmer 44 Mis 579, 90 NYS 133). Amounts paid: for stock by plaintiff stock- holder suing directors for waste (Kolb 135 AD 542, 120 NYS 543). Application of borrowed money; action for money lent defendants through "another ('Citizens' Central Nat Bak 49 Mis 319, 99 NYS 191, rvd 115 AD 471, 101 NYS 435). Argument: (Gutta Percha & Rubber Mfg Co 150 AD 678, 135 NYS 766); elaborate re- quired to show irrelevancy ('Gaylord 25 NYS 598). Benefit to defendants: by fraud in consolida- tion of corporations by escaping liability as endorsers of notes of one company, action by stockholder for conspiracy and fraud in consolidation (Cleminshaw 136 XT) 160, 120 NYS 181). Business of railroad: action to restrain re- moval of tracks ('NYC & HRRR Co 135 AD 331, 119 NYS 999). Cause of action attempted to be stated: ir- relevancy to the test (Plymouth Garage 170 AD 61, 156 NYS 23). Claims of defendant: action to restrain boy- cott ('Park & Sons Co 30 AD 508, 52 NTS 475). Codef endants : matters material against one not stricken on motion of other ('Hoffman 137 NY 621). Collateral agreement: as to keeping gasoline on premises, action between landlord and tenant for damage from fire ('Howard 75 AD 23, 77 NYS 957). Complaint: irrelevant matter is more serious than in answer as defendant must at his peril answer or deny or admit whatever may be held material on trial (Young 158 AD 760, 143 NYS 931; Gutta Percha & Rub- ber Mfg Co 150 AD 678, 135 NTS 766). Conclusions: of law and fact (Gutta Percha & Rubber Mfg Co 150 AD 678, 135 NYS 766). Correspondence: leading up to result com- plained of, relating to no issue and mostly devoid of evidentiary value (Landmesser 141 NYS 730). Depreciation of market value: of stock, stockholder's action against directors for waste of assets (Kavanaugh 181 NT 121). Discretion in striking out irrelevant matter: abused, relief demanded equitable (Town of Essex 8 Hun 361); court of original juris- 87 PLEADINGS r. 103 diction has (Kavanaugh 181 NY 121); to be exercised with caution and only in clear cases (Wayte 187 NYS 276). Dispute as to title; and other matters, dam- ages for condemnation '(Cahill 17 AbP 196, afd 45 NY 478). Duress; by which compromise forced in tort action which when stricken below converted action to one on contract which was com- promised ('Frankel 83 Mis 124, 144 NYS 770). Entire complaint: ('Nichols 6 How 355). Equity: irrelevant matter stricken from com- plaint in, tho greater latitude of pleading admitted than at law (Isaacs 159 AD 675, 144 NYS 876; Gutta Percha & Rubber Mfg Co 150 AD 678, ]35 NYS 766). Evidence; complaining party not aggrieved (•Meyer 49 AD 639, 63 NYS 143); matters of (Gutta Percha & Rubber Mfg Co 150 AD 678, 135 NYS 766; Conner 170 NYS 94), is- sue as to mental capacity of testator (Ham- ilton 124 AD 619, 109 NYS 221); showing how certain acts done, action to restrain boycott (Park & Sons Co 30 AD 508, 52 NYS 475). Evidentiary facts: (Chittenden 125 AD 855, 110 NYS 148); in action for share of profits in securing control of gas companies, only purpose of which being to obscure issue in minds of jury (Young 158 AD 763, 143 NYS 934); tending to prove partnership ter- minated at some past time unknown to plaintiff, action for share of profits made greater by termination (Barclay 162 AD 557, 147 NYS 597). Palse names: publication under to prevent discovery of assignment sought to be set aside as fraudulent (Day 95 AD 122, 88 NYS 504). Pavor: motions to strike not regarded with (Baruch 149 AD 466, 134 NYS 53; Rockwell 84 AD 437, 82 NYS 993). Eoreclosnre action: not subject to collateral attack, details of, stockholder's action against directors for waste (Kolb 135 AD 542, 120 NYS 543). Poreifn judgment: against copartners, one only counts on, as against partner not served ('Hoftman 137 NY 621). Prand: inducing contract under which ac- counting sought (Bradley 120 AD 315, 105 NYS 296). History of title: and disputes, ejectment (Brown 37 Mis 367, 75 NYS 460, rvd 76 AD 329, 78 NYS 414). Incorporation of: complainant, acts before, action for conspiracy (Philippines Co 57 AD 19, 67 NYS 970); one of two allied cor- porations by the other, stockholder's action against directors for waste (Kolb 135 AD 542. 120 NYS 543). Inducements to construct railroad: action to restrain removal of tracks ('NYC & HR RR Co 135 AD 331, 119 NYS 999). Xtibel: of plaintiff not amounting to sep- arate cause of action, action for loss of services due to libel of wife (Garrison 153 AD 744, 138 NYS 761). Miscellaneous alleerations ; action for con- spiracy to delay and defeat (Mussina 17 AbP 188). Motive: action for malicious prosecution (•Brockleman 10 AbP 141); in making con- tract, action for specific performance (•First Presb Church 72 AD 82, 76 NYS 284). Keg'Uffence: common law grounds stated with grounds under employers' liability act (•Acardo 116 AD 793, 102 NYS 7). Kotice of motion: not served within 20 days after service of complaint (•NY Ice Co 21 How 234). Opinions: of plaintiff stockholder suing di- rectors for waste (Kolb 135 AD 542, 120 NYS 543). Ordinances relating to tracks: action by railroad to restrain removal ('NYC & HR RR Co 135 AD 331, 119 NYS 999). Otber: defendants, relevant to, tho not to defendant moving to strike ('Brown 76 AD 329, 78 NYS 414); person's money ob- tained from by false representations in same scheme by which plaintiff defrauded (Cleaveland 165 AD 39, 150 NYS 477). Prejudice to moving' party: if matter al- lowed to stand and lack of prejudice to adversary by striking must appear (Baruch 149 AD 466, 134 NYS 53). Price paid for stock: stockholder's action against directors for waste of assets (Kavanaugh 181 NY 121). Purpose: of borrowing money, action for money lent defendants through another (•Citizens' Central Nat Bk 49 Mis 319, 99 NYS 191, rvd 115 AD 471, 101 NYS 435). Kedraft complaint: court will not, striking out proper, good and irrelevant allegations inextricably mixed (Gutta Percha & Rub- ber Mfg Co 150 AD 678, 135 NYS 766); irrelevant and redundant matter included (Conner 170 NYS 94). Relations: between plaintiff and testator on whose conversion of stock action based (•Rockwell 84 AD 437, 82 NYS 993). Remedy: motion to strike, not dismissal (Simmons 29 How 309). Remote in time: facts before and after alleged fraud constituting basis of action to rescind purchase of stock (Isaacs 159 AD 675, 144 NYS 876). Report l)y highway commissioners: that highway should be carried under track, ac- tion to compel railroad so to carry (•Town of Dunkirk 75 Hun 366, 27 NYS 105). Representations of value: of stock and re- liance thereon, action on contract to re- purchase (Shea 167 NYS 570). Retraction: when sued in another court for similar defamatory statements, libel ac- tion (•Younger 26 Hun 442). Rules established by defendants: by means of which boycott carried out action, for damages therefor (Park & Sons 30 AD 508, 52 NYS 481); to restrain same (•Park & Sons Co 30 AD 508, 52 NYS 475). Sources of plaintiff's information: stock- holder's action against directors for waste (Kolb 135 AD 542, 120 NYS 543). Special damag'es: facts to show, action for assault, false imprisonment, and conspir- acy to injure (•Molony 15 How 261). Stations of railroad: in city, action to re- strain removal of tracks (•NYC & HR RR Co 135 AD 331, 119 NYS 999). Succession to corporate rights: alleging all proceedings relating to insolvency, re- ceivership, reorganization, transfer of property to plaintiff, payment of corpo- rate debts and notice to defendant that plaintiff was owner of predecessor's con- tract ('Pope Mfg Co 100 AD 349, 91 NYS 826). Sufficiency of facts; pleaded not determined on motion to strike (Stern 169 AD 781, 155 NYS 684). Test of irrelevancy: no substantial relation to controversy and cannot affect result (Wayte 187 NYS 276). Threats: of destruction of plant of tele- phone company and punishment of bond- holders if they refused to accept offer for bonds, action by trustee in bankruptcy for conspiracy to prevent competition (Conner 170 NYS 94). Trespass; acts of town not party to action (Home Apartment Co [Jan 30, 19221 66 NYLJ" 1519). Two counts; action for goods sold and de- livered (•Schuyler 8 NYS 850). Unfitness: for general or earth excavation of cars hired, action for false representa- tion of fitness for rock excavation (O'Rourke Engineering Const Co 144 AD 583, 129 NYS 764). Unintelligible: striking would render com- plaint, semblance of cause of action stated (•Day 95 AD 122, 88 NYS 504). 'Unnecessary: to cause of action to may become relevant as evidence, libel action (Powers 142 AD 457, 126 NYS 820) r. 103 OLEVENO-JER'S RULES OF CIVIL PRACTICE 88 Talne: of property, action to restrain re- moval of railroad tracks ('NYC & HR RK Co 135 AD 331, 119 NTS 999). vraljrei: may warrant denial of motion to strike (see 'Bowman 5 Sandf 6B7). ANSWER MATTER HE£D IBBEI.ETANT: STRICKEir OUT — Abatement: action of replevin not abated because of one stipulation in action on replevin bond to return goods of action abated (•Plymouth Garage 170 AD 61, 156 NYS 23). Accountlug: no application to directors for, action by preferred stockholder for de- ferred dividends (Thompson 45 NY 468). AcauiBltlon of {roods: possible within reason- able time at price less than amount given defendant to purchase them, information and belief basis, action for conversion of money (Carlson [Dec 6, 1921] 66 NTLJ Admission: in defense (Sanford 39 Mis 548, 80 NYS 404); of receipt of cargo by de- fendant, question of demurrage ('Randall 60 AD 567, 70 NYS 43). Adulterous relationship: of plaintiff and an- other, preamble to allegation that slander- ous words sued for uttered in heat of pas- sion, altercation not connected with rela- tionship (Hilton 40 AD 490, 58 NYS 134). Affirmative defense: buyer's acceptance and waiver of defects (N London [Oct 4, 1921] 66 NYLJ 44). Another action pending': mechanic's lien foreclosure (*Webb 16 AbP 190). Appropriation: payment of claim for in- creased salary of city lamp inspection would be in excess of, complaint allege appropriation duly made (Clarkin 91 Mis 98, 154 NYS 1019). Arerninent ueoessary: to show irrelevancy, allegations not so grossly improper as to show bad faith CRobbins 5 WkD 537). Anthority of clerk: to indorse, other de- fenses, general denial, forged Indorsement of checks involved (*Nordlinger 14 NYS 51";). Breach of warranty: of seizin, mortgage foreclosure deficiency judgment sought (•Merritt 58 Hun 372, 12 NYS 132). Chemical analysis: of patent medicine con- cerning which publication sued for as libelous made, purpose to show public that medicine would not cure diseases as claimed ('Hanson Co 119 AD 794, 104 NYS 787). CircTuustances relating' to defense: that re- tired partner been released from liability on lease to firm because of extension to former partner ('Stern 169 AD 781, 155 NYS 684). Confidential and priTiJlegea character: of communication, slander action ('Goodman 41 Hun 605). Consideration for transfer: of note sued on, denial on information and belief (Queen City Bk 8 AD 27, 40 NYS 1018). Counterclaim necessarily established: by judgment adverse to plaintiff, action to de- termine ownership of part of fund, counter- claim against plaintiff and codefendant for share of whole ('Stibbard 26 Mis 260, 56 NYS 777). Damages and malice: denial of included with defense of privilege, truth, justification, and allegations of good faith and absence of malice, libel action (Haffen 126 AD 675, 111 NYS 225). Defenses: attempted to be stated, irrele- vancy to the test (Plymouth Garage 170 AD 61, 156 NYS 23); denials or allegations of one defense incorporated in another should be stricken when not material or relevant and not left to shield new matter against demurrer (Pullen 165 AD 117, 150 NYS 719). Denials; afBrmative defenses (Blaut 41 Mis 572, 85 NYS 146); in defenses (Staten I M R 60 34 Mis 49, 68 NYS 556); of each and every allegation in complaint not speoifl- cally admitted or denied ('Owens 12 NTS 700); of every allegation except that de- fendant owner and publisher of news- paper, libel action ('Dinkelspiel 91 AD 96, 86 NYS 375); repetition in separate de- fense constituting complete bar to action without them (Barry 164 AD 220, 149 NTS 627; Clarkin 91 Mis 98, 154 NTS 1019). Discretionary: order striking is (Bmmens 21 Mis 638, 47 NTS 1099). Entire ans-wer: ('Stroock 129 AD 14, 113 NTS 214). Entire defense: ('Tierney 129 AD 694, 114 NYS 139); cannot be stricken, only irrele- vant matter therefrom ('Crotty 153 AD 902, 137 NYS 1102); not stricken, remedy by demurrer ('Cardeza 32 Mis 46, 65 NYS 450, afd 54 AD 626. 66 NYS 1128); or plead- ing not stricken ('Burnside 141 NYS 238); separate defense ('Fasnacht 53 Barb 650). Etridence: allegations of, complaining party not aggrieved ('Tradesmen's Nat Bk 49 AD 362, 63 NYS 526). Tidnciary character: mortgage made to plaintiff " as special guardian," action to foreclose in individual (Parkinson 74 NY 88). Financial experience of defendant: manage- ment of finances of company with larceny of whose funds plaintiff charged, and ex- tensive operations of company, action for malicious prosecution (Scharf 15 AD 480, 46 NYS 491). Fraud: in obtaining insurance to pay for which nots sued on given ('Struver 2 Hilt 475). Fraudulent: means by which money ob- tained, alleging liability and promise which law implies ('Harway 1 Hun 628); repre- sentations by buyer, action on contract of sale, delay in delivery ('Whitehall Lumber Co 4 NYS 722). HI treatment of 'srife; by plaintiff, libel ac- tion (Cruikshank 32 Mis 152, 65 NYS 678). Incorporation into other defenses: of irrele- vant allegations of one defense setting up lack of jurisdiction in court of foreign country rendering judgment sued on (Pul- len 165 AD 117, 150 NYS 719). Installments: price payable in, mechanic's lien foreclosure ('Webb 16 AbP 190). Insufficient: to establish defense ('Kelly 26 AD 90, 49 NYS 896). Intent: with which alleged libelous pub- lication made and circumstances of in- sertion in newspaper, where question of actual malice may be submitted to jury (•Palmer 16 AD 270, 44 NYS 675). Interpretation: by plaintiff denied and mean- ing intended alleged, admission of publica- tion repetition of allegations as separate partial defense in mitigation of damages CHoffen 126 AD 675. Ill NYS 225). Joinder: of directors in misappropriation by bank cashier, action on cashier's bond (•Rankin 108 AD 295, 95 NYS 718). Xno'wledge or information denied: employ- ment of plaintiff's son by defendant (•Johnston 115 NYS 141). iLaches bar relief: motion as to only one answer more than a year after service of four others identical in form by other de- fendants (•Barber 125 AD 412, 109 NYS 1023). Dibel of defendant: by plaintiff's brother prior to libel sued for, belief that same re- sult of hostile feeling of plaintiff toward defendant (•Hatch 85 Hun 522, 33 NYS 332). limitations: statute of ('Schoonmaker 7 StR 430). Material: allegations (•Pacific Mail SS Co 4 Hun 671, 56 Barb 277); may become (•Averill 5 How 476). Medical examiner: statements to not re- ferred to In life insurance policy sued on (Becker 75 Mis 213, 133 NTS 481). Merger: by sheriff's sale under execution and assignment of certificate of sale to mortgagee set up as defense to foreclosure 89 PLEADINGS r. 103 by purchaser subject to mortgage (Reed 15 Barb 9). Misappropriations by pladutlfC: other than that on which prosecution for larceny founded, action for malicious prosecution (•Dunton 18 AD 146, 46 NYS 758). IXlsrepreseutatlons: fraudulent by plain- tiff's assignor as to value of goods pur- chased, action for breach by refusing to deliver goods sold ('Smith 30 NY 655). Mortgagea property: denial of interest of mortgagor's wife in allegations that con- veyance by mortgagor to wife was in fraud of creditors, Insolvency of mortgagors at death, asking relief that conveyance be de- clared fraudulent, surplus moneys be paid creditors and wife enjoined from receiving any foreclosure (North River Sav Bk 130 NYS 787). Konjoiuder: of common stockholders, action by preferred stockholders for deferred divi- dends (Thompson 45 NY 468). Konpayment of taxes; by lessors in action to recover for breach of covenant in lease to pay taxes, alleging payment by mort- gagee (Walter 85 NY 621). Notice not filed: in time, mechanic's lien foreclosure (»Webb 16AbP 190). Org'anization expenses: agreement to pay sum for, payment pursuant thereto, and use therefor, action for money paid on account of stock subscription voluntarily abandoned by defendant (•MacCall 89 Hun 490, 35 NYS 364). Ownership of: goods sold in principal and not in plaintiff agent suing therefor (Reilly 13 AbP 255, 22 How 93); note sued on, in plaintiff denied (Fleury 5 Sand 646), and defendant's indebtedness thereon de- nied, making, transfer, and possession of note admitted (Catlin 1 Duer 253, rvd 11 NY 368), in second indorser against whom maker had claim, executors of maker noti- fied defendant not to pay, action against first indorser (Arrangoiz 2 Hilt 244). Practice: court cannot strike out new mat- ter in answer at trial as irrelevant, proper practice is to raise question by motion or demurrer (Smith 30 NY 655). Prior to existence of corporation; matters occurring, action against stockholder for debt (Collins 7 Rob 623). Probable cause: facts tending to show, in action against chairman of county super- visors for. false imprisonment and mali- cious prosecution and facts relating to charges against plaintiff, by way of miti- gation, be stricken only when clearly inad- missible (*Bradner 93 NY 515). Profligfacy: of plaintiff, action for breach of promise to marry ("Keegan 25 NYS 78, 31 AbNC 54). Refusal to strijce proper; no injustice to moving party CStokes 69 AD 21, 74 NYS 528). Renewal at maturity: agreement for, action on note (Bailey 13 AbP 354). Reply unnecessary: motions to strike allega- tions to which plaintiff need not reply not favored, granted only where allegations have no possible bearing on subject matter (Stern 169 AD 781, 155 NYS 689). Securities: in holder's possession, exhaus- tion, action on bill of exchange (Bank 11 AbP 435). Termination of lease: stockholder's action against directors for cancelling, not stated as separate defense (Morron 147 NYS 931). Test of irrelerency: may consist in state- ments not material to a decision, not form- ing or tendering any material issue (PvMcCumber 18 NY 315, afg 27 Barb 632, 15 How 186). Transfer tax: failure to pay, action for balance of purchase price of stock (*Sher- idan 138 AD 436, 122 NYS 800). Waiver: not result from serving reply not connected with part of answer objected to as irrelevant (Sheridan 138 AD 436, 122 NYS 800). TWliole cause of action: defense to ('Hub- bard 38 Hun 162). OOUNTERCIiAIM MATTER SHJmJ} IRREIiI:- VANT: STRICKEN OUT — Breach of warranty: counterclaim based on nondelivery of machines (T H Symington Co 172 NYS 677). Damages for nondelivery; of real estate on time and for removal of fixtures in action for price ('Fettrlch 47 NY 426). Knowledere; by plaintiff that defendant had contract to manufacture shrapnel shells as ground for special damage for failure to deliver machines to make the shells (•T H Symington Co 172 NYS 677). Prior facts and negotiations; counterclaim founded on written contract (T H Syming- ton Co 172 NYS 677). Remedy: to test sufiiciency of counterclaim, demurrer and not motion to strike (Arnold 134 AD 758, 119 NYS 451). Semblance of counterclaim: to recover ex- tra rent paid on ground of duress in action for breach of covenant in lease to pay taxes (•Walter 85 NY 621). Subsequent fraud of mortgagor: after mak- ing mortgage set up by purchaser subject to mortgage in foreclosure action (Reed 15 Barb 9). REPIiY MATTER HEI.D IBREI^EVANT: STRICKEN OUT — Damages arising out of false representa- tions: inducing payment of money, aver- ments tending to show, action for money paid at request of defendant (Frank Brew Co 22 AD 475, 48 NYS 30). No force and effect: as to plaintiff's rights, judgment pleaded as bar in partition ac- tion (Henriques 26 AD 35, 49 NYS 1074). Purpose of action: wherein was rendered judgment set up in answer in partition suit, to prevent trial of present suit on' merits (Henriques 26 AD 35, 49 NYS 1074). Remedy: when reply to counterclaim sets up matter Inconsistent with complaint is motion to strike as irrelevant (Streeter 157 NYS 698 dis op). COMPI^AINT MATTER HEI^D REDUN- DANT: STRICKEN OUT — Advice to plaintiff: when purchasing land that covenant sued on ran therewith (Kid- der 151 AD 348, 135 NYS 353). Covenant; of railroad to transport grain alleged to run with land was made for benefit of land, was understood by parties to run with land, part of land was con- veyed but plaintiff reserved rights and is entitled to enjoy them ('Kidder 151 AD 348, 135 NYS 353). Evidence: items of merely (Schroeder 3 AD 411, 38 NYS 677). Redraft complaint: court will not. striking out proper where redundant and irrelevant matter included (Conner 170 NYS 94). Redundancy means; vain repetition (Har- way 1 Hun 628). Repetitions: of facts alleged action to re- strain boycott (Park & Sons Co 30 AD 508, 52 NYS 475). Separate cause of action; repetition of two separately stated causes jumbled together as third, action on accident insurance policy (Barrows 174 AD 539, 161 NYS 203). Unfitness: of cars hired for rock excavation, falsity of representation of fitness already alleged (O'Rourke Engineering Const Co 144 AD 583, 129 NYS 764). ANSWER MATTER HEI^D REDUNDANT: STRICKEN OUT — Delay in delivery: action on contract of sale ('Whitehall Lumber Co 4 NYS 722). Denials: each and every allegation in com- plaint not specifically admitted or denied (•Owens 12 NYS 700); matter set up in court provable under previous denials (Uggla 77 AD 310, 79 NYS 244); repeated, action for breach of contract (Zimmerman 34 Mis 307, 69 NYS 800), as to right of plaintiff to sue (Stieffel 55 AD 532 67 NYS 274), libel action (Dinkelspiel 91 AD 96 86 r. 103 CLEVENGER'S RVUES OF CIVIL PRACTICE 90 NYS 375; Cruikshank 32 Mis 152, 65 NTS 678); repetition in separate defense, con- stituting complete bar (Clarkin 91 Mis 98, 154 NYS 1019), to which they add nothing- and are irrelevant (Barry 164 AD 220, 149 NYS 627). Entire defense or pleadlne; not stricken (•Burnside 141 NTS 258). Frandnlent representations by Tinyer: ac- tion on contract of sale (•Whitehall Lum- ber Co 4 NYS 722). Eypothetlcal alleeratlon: as to circumstances surrounding indorsement of promissory note (see Corn 97 AD 48, 89 NYS 658). Injury caused ty tliird person: in addition to general denial, personal injury action against carrier (see Durst 33 Mis 124, 67 NTS 297). Insufficiency: of defenses not ground for motion to strike, demurrer proper remedy (Gibson 139 AD 51, 123 NTS 504). Probable cause: action for malicious prose- cution (Rost 12 AbP 446). Reallege: reassert, and reiterate each and every allegation hereinbefore contained (Waltham 67 AD 102, 73 NTS 540). Separate defense: due performance after general denial of failure to perform (Mil- ler 69 Mis 73, 125 NTS 1015); incorporate therein matter from preceding defenses presenting substantially the same issues or irrelevant to defense (Pullen 165 AD 117, 150 NTS 719). Warrant of arrest: facts leading to issuance and necessary to establish validity and right to issue it. action against coroner for false arrest and imprisonment (•Gib- son 139 AD 51, 123 NTS 504). ANSWER BCATTER HEI^D SCANDAi;OUS: STRICEEH- OUT — Adulterous relationship: of plaintiff and an- other, preamble to allegation that slander- ous words sued for uttered in heat of pas- sion, altercation not connected with rela- tionship (Hilton 40 AD 490, 58 NTS 134). Crime: charge on which no claim of dam- ages predicated (Wehle 2 Mis 345, 21 NTS 1027). Entire defense: cannot be stricken, only scandalous matter (•Crotty 153 AD 902, 137 NTS 1102). Ill treatment of wife; by plaintiff, libel ac- tion (Cruikshank 32 Mis 152, 65 NTS 678). Insufficiency: of defenses not ground for motion to strike as scandalous,, demurrer proper remedy (Gibson 139 AD 51, 123 NTS 504). Insulting: to plaintiff, action against high- way commissioner (Armstrong 14 NTS 582). Proflltfacy: of plaintiff, action for breach of promise to marry (*Keegan 25 NTS 78, 31 AbNC 54). Waiver of objection; motion to strike alle- gation of specific act of adultery in answer in action for dower having been granted, right to strike other allegations of im- morality is waived so that amended com- plaint repenting such allegations is not subject to another motion to strike (Gar- rabrant 155 AD 456, 140 NTS 242); not result from serving reply not connected with part of answer objected to as scan- dalous (Sheridan 138 AD 436, 122 NTS 800). Warrant of arrest; facts leading to issu- ance and necessary to establish validity and right to issue it, action against cor- oner for false arrest and imprisonment (♦Gibson 139 AD 51, 123 NTS 504). PERSON AGGRIEVED — Codefendant: in mortgage foreclosure, one defendant seeks to interject irrelevant matter in controversy by answer (North River Sav Bk 130 NTS 787). Defective order waived: plaintiff acquiesced in first order extending time to plead or otherwise more irregulai-ly granted, fur- ther regular order made and motion made and granted to strike matter from com- plaint (*L,andmesser 141 NTS 730). Defendant: ejectment (Brown 37 Mis 367, 75 NTS 460, rvd 76 AD 329, 78 NTS 414); evidentiary facts (Hamilton 124 AD 619, 109 NTS 221); irrelevant or redundant mat- ter (Kolb 135 AD 542, 120 NTS 543), must deny or admit at peril (Clerainshaw 130 AD 160, 120 NTS 181), requires answer (Conner 170 NTS 94; Shea 167 NTS 570); plaintiff limited in proof by allegation in complaint (•Rockwell 84 AD 438, 82 NTS 993 ). Moving' party: must be (Conner 170 NTS 94), detriment if matter stands must ap- pear on face of pleadings (Wayte 187 NTS 276). Plaintiff; contributory negligence alleged in answer ('Bogardus 62 AD 376, 70 NTS 1094); losing right to demur to defense containing irrelevant denials (Clarkin 91 Mis 98, 154 NYS 1019); mingling of denials and separate defense so pleading cannot be tested by demurrer or motion for judg- ment, libel action (McAvoy 149 NYS 665); partnership, recovery on promissory note (Kirkbridge 37 Mis 519, 75 NYS 1036); pleading entire article, published, and suc- cessfully opposing defendant's motion to strike part, cannot be heard to complain that he is aggrieved by defendant plead- ing the truth of the article or any part of it, libel action (*McAvoy 149 NYS 665); prevented from testing new matter In separate defense because redundant mat- ter is incorporated from other defenses (Pullen 165 AD 117, 150 NYS 719). MATTER TENDING TO PREJUDICE PAIS TRIAIi — Denial: of " each and every allegation set forth in said complaint, except' as herein admitted, qualified, or explained"; where the answer contains no specific denial, ad- mission or qualification of any allegation in the complaint (Barton 36 AD 572, 55 NYS 477). Inconsistent defenses: (*Siriani 12 Mis 213, 34 NYS 26). Prayer of answer: (*Averill 5 How 476). AMENDED PI^EADING OMITTING OB- JECTIONABI^E MATTER ORDERED SERVED — Answer: (Waltham 67 AD 102, 73 NYSS 540). Clear and connected: make remaining alle- gations of complaint (Bradley 120 AD 315, 105 NYS 296). Complaint: evidence (Stetson [Dec 3, 1921] 66 NYLJ 777); relevant and irrelevant alle- gations mingled stricken (Cleaveland 165 AD 39, 150 NYS 477). Mingling' of; denials of partial defense with separate complete defense so as to bar demurrer or motion for judgment (McAvoy 149 NYS 665); new matter with denials stricken, leave to separately state affirm- ative allegations (Morron 147 NTS 931). Necessary: because striking of irrelevant matters left complaint in condition requir- ing (Toung 158 AD 760, 143 NTS 931). No issue for trial: presented by answer after part stricken (•Lane 9 How 150). Proper; (Lockwood 18 AbP 136). Reversal of judgment on answer as friv- olous: with permission to file amended an- swer in five days and pay costs below to date of motion (Northern Bk 64 Mis 479, 120 NYS 880). DISTINCTION BETWEEN PBIVOI^OUS, IRREIiEVANT, AND SHAM FIiEAD- INGS— Privolous: presents no issue (Struver 9 AbP 23, 2 Hilt 475; Hecker 5 AbP 453, 6 Duer 687; Lefferts 1 AbP 41; Brown 3 Sand 732, 1 CodeR 156). Irrelevant: no substantial relation to con- troversy (Struver 9 AbP 23. 2 Hilt 475). Sliam: false in fact (Struver 9 AbP 23. 2 Hilt 475; Hecker 5 AbP 453, 6 Duer 687; Lefferts 1 AbP 41; Brown 3 Sand 733. 1 CodeR 156). « >•» . 91 PLEADIN08 I. 104 Rule 104. Sham or frivolous answer or reply. If an answer or reply be sham or frivolous the court may treat the pleading as a nullity and give judgment accordingly, or allow a new pleading to be served upon such terms as the court deems just. EDITORIAI^ NOTES — Source: CCP § 537 first two sentences, part, combined with CCP § 538, and rewritten. CCP § 537 revised from CP § 247, as amended by L 1877, c 416, and L. 1879, c 542. CCP § 538 revised from CP § 152, amended by omitting the words " and ir- relevant," which were added in 1851. CCP § 537, first two sentences, read: "If a de- murrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or a judge of the court for judgment there- upon, and judgment may be given accord- ingly. If the application is denied, an ap- peal cannot be taken from the determina- tion, and the denial of the application does not prejudice any of the subsequent pro- ceedings of either party." CCP § 538 read: *'A sham answer or a sham defense may be stricken out by the court, upon motion, and upon such terms as the court deems just." Text In italics is new matter, inserted June 17. 1921. Star (•) means read ITot into HEABI^IITE in capitals. For illustration see Rule 1. SHAM ANSWER TREATED AS IXVJmJm AND jvnavcEviT given — Aoconunodatlon character of note sued on: knowledge of plaintiff when he purchased note, no averment that plaintiff did not pay value (Albany County Bk 74 Hun 349, 26 NTS 490). Affidavits: may be used to illuminate plead- ings on motion to strike answer as sham but not to support striking unless they establish beyond contest falsity of answer (Carleton 77 Mis 573, 137 NTS 200). Alteration of note sued on: by changing date ('Rogers 87 NT 228), court cannot determine whether defense sham by in- specting note (Rogers 87 NY 228). Amount due: denial of in words of com- plaint with general denial of any sum due, mortgage foreclosure ('Carleton 77 Mis 573, 137 NTS 200). " Belief ": basis of denial of assignment of judgment to plaintiff ('Davis 4 How 155, 2 CodeR 99). Complaint failing to state cause of action: motion for judgment on ground answer false and frivolous must be denied ('Van Alstyne 41 NY 174). Consideration lacking: for note because so- called wines for which note given were not wines ('Kelly 16 How 135). Corporation: answer of, containing general denial of cause of action upon information and belief ('Martin 48 Hun 81); denial of knowledge sufficient to form belief as to whether plaintiff is, action on draft (Com- monwealth Bk 11 AbNS 227). Counterclaim: insufficient, cannot be stricken as sham answer, should be tested by demurrer or motion for judgment as frivolous ('Arnold 134 AD 758, 119 NTS 451). Denial of; allegations in complaint ('Gibbs 79 Mis 247, 139 NTS 945); material allega- tions, verified, court cannot treat as .sham (•Farmers' Nat Bk 50 NT 673; 'Thompson 45 NT 468). Extension agreement: set up as separate defense in mortgage foreclosure ('Carleton 77 Mis 573, 137 NTS 200). Praud: action on note ('Struver 9 AbP 23, 2 Hilt 475); invalidating mortgage sought to be foreclosed as to defendant junior mortgagee ('Goodwin 88 Hun 598, 34 NTS 769). rnvolous answer; not interposed in bad faith ('Darrow 5 How 247). Punds ou deposit: with plaintiff bank suffi- cient to pay note sued on when due, maker had ('Central Bk 76 Hun 571, 28 NTS 232). General denial: cannot be treated as sham (•Wayland 45 NT 281, overruling in effect PvMcComber 18 NT 315; 'Twigg [Dec 1, 1921] 66 NTLJ 742). General issue: to claim of state for moneys deposited in bank designated to receive canal toll deposits, shown false by other parts of answer and plaintiff's affidavits with no supporting affidavit on motion to strike (PvMcCumber 18 NT 315, afg 27 Barb 632, 15 How 186). Inconsistency: deny plaintiff's ownership of note, defendant's indorsement for cer- tain purpose, delivery to and discount by bank, presentment, demand and protest, and allege that at time note executed an- other note was delivered as security and that defendant had offered to pay note in suit and demanded return of collateral which was refused ('Schlesinger 106 AD 570, 94 NTS 718; 'Schlesinger 106 AD 587, 94 NTS 721); facts as to receipt of ship- ment of potatoes alleged injured by delay in transportation after error in furnishing different information to plaintiff under court order ('Mudgett 65 Mis 304, 119 NYS 843). Indorsement and delivery denied: action on note ('Robert Gere Bk 51 Hun 97, 5 NTS 457). Indorser of note sued on: deny all allega- tions except making and endorsing ('Law 9 WkD 38). Information and belief basis of denial of: each and every allegation of complaint, action for services rendered ('Humble 5 Mis 508, 25 NTS 965); every allegation of complaint, action for services, affidavit shows that at time contract was made and performed defendant's mental condition was such she cannot remember what took place ('Hensberry 23 Mis 37, 51 NTS 308). Information denied: as to sale, action for goods sold ('Nichols 38 Mis 671, 78 NTS 242). Knowledcpe insufficient to form belief: as to all material allegations, action on foreign judgment rendered in action in which de- fendant appeared (Roblin 60 How 200). Knowledge or information sufficient to form belief denied as to: allegation of account stated inferred from acts of which personal knowledge by defendant not necessary (•Curtis-Blaisdell Co 82 Mis 444, 143 NTS 1074); whether payee endorsed and deliv- ered note to plaintiff ('Sherman 7 How 171). Mailing and delivery for value denied; action on note ('Meurer 25 Mis 12, 53 NTS 770). Mortgage foreclosure by assignee: admit all allegations of complaint except recording and assignment of mortgage, and claim that mortgagee should be party because he guar- anteed payment (StMark's F Ins Co 13 How 95). No demand on directors for accounting^: ac- tion for deferred dividend on preferred stock ('Thompson 45 NT 468). No formal order by highway commissioner: action for damages for lands taken for highway ('Van Alstyne 41 NY 174). Nonpresentation of claim: for damages from widening of highway to town board, no audit by board, money to pay not raised by taxation, order for widening reversed on appeal ('Van Alstyne 41 NY 174). Ownership of plaintiff: denied, action on note, also deny: that plaJ-.tiff is holder ('Colt 50 Hun 366, 3 NYS 354); transfer to plaintiff ('Jones 29 Mis 517, 61 NYS 972). r. 104 OLEVENGER'S RULES OF CIVIL PRACTICE 92 Part of answer g-ood: general denial in action against endorsers of note, and allegation that if any endorsement was made by de- fendant It was without consideration (•Duke 126 AD 383, 110 NYS 563). Payment: action on note ('Struver 9 AbP 23, 2 Hilt 475); of interest in mortgage fore- closure by another defendant and extension of time to that defendant, by loose and un- certain allegations, opposed by explicit de- nials in affidavit of plaintiff and not supported by affidavit of defendant (Kay 44 NY 565); pursuant to agreement to pay sum for organization expenses, use for such purpose, action to recover money paid on account of stock subscription claimed to have been voluntarily abandoned by defend- ant (*McCall 89 Hun 490, 35 NYS 364). Recovery of jndg'iu.ent: and nonpayment of any part denied, action on foreign judg- ment ('Barrie 35 AD 404, 54 NYS 841). Sale: action for damages for failure to accept and pay for g-oods, deny allegations of ten- der, of refusal to accept without cause, of performance by plaintiff of all condition."^, and that sum claimed is due ('Andrea 56 NYS 614). Slvowln? necessary: plaintiff entitled to full sum claimed (Post [Jan 4, 1922] 66 NYLJ 1172). Transfer of note sued on denied on: informa- tion and belief, alleged that transfer after maturity, claim In recoupment for damages for breach of contract on which note given (•Farmers Nat Bk 50 NY 673). Vsnry: In discount of notes sued on, affi- davits on motion showing defense un- founded (Manufacturers' Bk of Rochester 14 How 406); in original notes, action to foreclose mortgage securing renewal notes (•Schnltzer 10 AD 173, 41 NYS 908); in- sufficient defense of, action on promissory note ('Bradley 161 NYS 394). Verified answer: may be stricken (PvMcCum- ber 18 NY 315, afg 27 Barb 632, 15 How 186). rBIVO£OT7S ANSWER TREATED AS ITUIiIi AND JVDGiaENT G-ITEN — Acconunodation character of note: delivered on condition that defendant should not be liable provided such note be replaced by business paper of person accommodated not alleged that ap"reenient to replace made with iplaintiff (Vilas Nat Bk 77 Hun 554, 28 NYS 922); plaintiff's knowledge of lack of con- sideration (Pettigrew 2 Hilt 546); suit averred to be pending to foreclose mortgage given as collateral security (•Chatham Nat Bk 20 Hun 543). Affidavits: cannot be used as basis for judg- ment on answer as frivolous, frivolity must appear by mere inspection (Northern Bk 64 Mis 479, 120 NYS 880). Affidavit of merits: and that answer is in good faith and not for delay ('Henderson 5 CivP 221). Alteration of note sued on: change of date (•Rogers 87 NY 228). Apparent on face of answer: frivolity must be to warrant judgment (Gibbs 79 Mis 247, 139 NYS 945). Application to court necessary: counsel can- not treat answer as frivolous and a nullity and enter judgment (Decker 21 Hun 332). Argument necessary: to show frivolous char- acter (•Youngs 46 NY 672; •Carpenter 34 Hun 429), extended argument (•Metzger 21 NYS 676), tho answer would be insufficient on demurrer (•Delano 2 LawB 2!)). Bill of exchangee: acceptance at drawer's re- quest and agreement by him to deliver notes to secure acceptor against liability, failure to deliver notes (•Llndon 6 Hun 200). Bond for costs and disbursements: not due (Ross 25 Hun 642). Breach of warranty: facts showing, action for goods sold and delivered (•Hagerdorn Merz Co 178 AD 483, 165 NYS 99); of seizin, mortgage foreclosure, deficiency judgment sought (•Merritt 58 Hun 372, 12 NYS 132); of quality defectively set up, no facts, no general or specific denials of any material allegations of complaint, action for price of lady's suit (Harris & Schwartz 134 AD 975, 119 NYS 297). Character of acceptance of draft sued on: as bill drawn by company, not by treasurer individually (Commonwealth Bk 11 AbNS 227). Check: given plaintiff for money lent, not shown to be out of plaintiff's possession or control (Strong 4 Duer 668). Complaint fail to state cause of action: no judgment on frivolous answer (Hunger 61 NY 251; Van Alstyne 41 NY 174). Conditional sale liy defendant: lien for pur- chase prior to mortgage sought to be fore- closed ('Barwin 146 AD 319, 130 NYS 781). Consideration: failure of, action on note (•Churchill 10 NYS 263, 24 AbNC 122). Conversion of stock: denied (•Dubois 13 NYS 99, 36 StR 543). Corporate report: creditor's action to enforce statutory liability for failure to file, an- swer setting up that debt is secured by mortgage, no judgment recovered on, claim against corporation, and non-joinder of co- trustee of corporation as defendant (Strong 4 Daly 326). Corporation: abandoned its business later in the year In which it was in default of re- port, action to enforce liability of director for debts existing at time of failure to make and file annual report (Lee 38 AD 531, 56 NYS 645); denial that acceptance by officer of draft sued on was corporate act (•Mather 7 NYS 213); dissolution, admit illegal payment from appropriation ob- tained from legislature, allege that trustees acted on advice of counsel that only three of the trustees who made the resolution for payment are on the present board and that present board is competent to manage the corporation (PvDisp & Hosp Soc 7 Lans 304); proper organization and defendant's subscription denied on information and be- lief, action on stock subscription (•Trlmbull 26 AD 356, 49 NYS 786). Counterclaim: in nature of setoff set up in action for goods sold, improperly stricken as frivolous (•Cooper 16 Hun 502); may not be tested as to sufficiency on motion to overrule as frivolous and judgment ordered (•Smith 137 AD 911, 121 NYS 1085). Default: and demand of payment denied, ac- tion for principal of mortgage bonds ('War- ner 6 NYS 411); in payment of installment as alleged in complaint denied, foreclosure of mortgage (*Gruenstein 1 AD 580, 37 NYS 538); in payment of Interest on mort- gage denied (Excelsior Sav Bk 2 Hun 375, 48 How 347, afd 62 NY 637). Demand and refusal of payment: denied, ac- tion on note ('Samraet 27 NYS 279). Demurrable: not necessarily frivolous so as to authorize summary judgment ('Youngs 46 NY .672). Denial: "as it is set out in said complaint" (Shearman 1 AbP 187, afg 11 How 269); in haec verba, answer also contain matter in justification and mitigation, action for assault and battery ('Laurie 30 Mis 154, 61 NYS 930); in nearly exact words of com- plaint, negligence action, explosion ('Dono- van 74 AD 44, 77 NYS 229); raising no Is- sue, action on surety bond (see Galbralth 37 Mis 156, 74 NYS 837); that libel sued for published with knowledge, consent, assent or permission of defendant insufficiency of denial to make issue not clear ('Samuels 52 NY 625); with admission, action for ac- counting of receipt of other goods ('Gilles- pie 20 NYS 833. 49 StR 423). Denial of: each and every allegation of com- plaint, action for penalty under game law CPvTunnlcliffe 7 NYS 91), "except as herein admitted, qualified or explained " ('Calhoun 25 Hun 155); material allega- tions in action on undertaking to obtain stay in action against defendant subse- quently becoming bankrupt, and raising question of solvency at time of stay 93 PLEADINGS t. 104 (•Gibbs 79 Mis 247, 139 NTS 945); non- payment of tax lien, action based on non- payment (*Altman 161 AD 583, 146 NTS 949). Sischacgfe of liankrapt: by confirmation of composition after plaintiff received permis- sion to prosecute action to judgment (•Con- solidated Rubber etc Co 121 AD 764, 106 NTS 599). Sewer: question raised whether can be as- serted against anyone but owner of prop- erty, action by widow against lessee of premises on judgment declaring her entitled to dower ('Bedlow 45 AD 557, 61 NTS 371); right of defendant wife who did not sign mortgage sought to be foreclosed (Ander- son 120 AD 676, 105 NTS 278). Extension agreement: and tender of payment prior to commencement of suit, mortgage foreclosure ('Exchange Fire Ins Co 74 Hun 527, 26 NTS 823). Perm: "says" that he denies, etc. (*Chap- man 34 How 281). Frand: action on note ('Struver 9 AbP 23, 2 Hilt 475); in obtaining credit denied (•Griffln 48 How 15); in obtaining insurance to pay which note sued on given (*Struver 2 Hilt 475); in sale of land, action on note (Soper 76 AD 409, 78 NTS 782); of insured and beneficiary, action on life insurance policy, nonforfeiture clause (Bates 22 NTS 627). General denial: action for damages to pota- toes by delay in transportation (*Mudgett 65 Mis 304, 119 NTS 843). Oood defenses: some, others frivolous ('Hen- derson 5 CivP 221). Goods sold: cause of action for denied (•Grif- fin 48 How 15). Indebtedness: as alleged in complaint denied (Fosdick 22 How 158; McMurray 5 How 14). Indorsement: and delivery denied, action on note (•Robert Gere Bk 51 Hun 97, 5 NTS 457) payable to maker's own order and in- dorsed by him (Kamlah 6 AbP 226, 1 Hilt 558); denied action on note (•Hecker 5 AbP 453, 6 Duer 687). Inferior character: and not of value charged, action for goods sold and delivered (Katz Underwear Co 165 NTS 431). Infomation and belief basis of denial: (•Met- raz 5 AbNC 90; 'Stent 5 AbNC 88); action for rent in Albany city court (See Alex- ander 55 AD 238, 66 NTS 1084); of each and every allegation of complaint in fore- closure alleging mortgage executed by de- fendant, tender of payment of mortgage alleged (Cook 102 Mis 260, 168 NTS 818). Inspection failing' to show: frivolous char- acter (•German Exchange Bk 13 Mis 192, 34 NTS 133). Interest In premises: denial that defendant has or claims, mortgage foreclosure (*West Side Sav & Loan Assn 4 AD 618, 39 NTS 414). Invalidity of bond and mortgage: sought to be foreclosed because executed by married woman, alleged in complaint to be owner of property (Cramer 11 How 486). Judgment on answer properly denied: except in rare cases, so that plaintiff left to remedy of judgment on pleadings (Weil 67 Mis 227. 124 NTS 473). Jurisdiction denied: because defendant United States minister to Brazil (Mechanics' Bk 21 How 450, 14 AbP 72n). Knowledge denied: action for goods sold and delivered, proper remedy to move to strike as frivolous, not for judgment on plead- ings (Lazurus 187 NTS 194); as to matters presumptively known by defendant, proper procedure motion to strike out as sham, not motion for judgment on pleadings (*Kirsoh- baum 205 NT 127). Knowledge or information sufficient to form heUef denied: (•Hagadorn 37 StR 542, is NTS 687); accident, personal injury action (•Curran 141 AD 659, 125 ISTTS 993); action by Indorsee of note against makers and In- dorsers (•Leach 3 AbP 1); affirmance of judgment, death of defendant and revival of action against executrix, action on appeal bond given in original action, all matters of public record (Allen 144 AD 509, 129 NTS 228); allegations of complaint in mort- gage foreclosure except that defendant junior mortgagee claims a lien of premises described, and allegation of facts showing his lien (•Bidwell 10 AD 135, 41 NTS 770); any of the allegations of the complaint (•Grocers' Bk 6 Hun 18); assignment of tax lien not alleged to be of public record, action to foreclose lien ('Altman 161 AD 583, 146 NTS 949); authority of agent to sign promissory note of corporation (•Shearman 1 AbP 187, afg 11 How 269); entry of judgment on certain day, denial of indebtedness in sum claimed, complaint al- leging entry on or about that date, and de- fendants undertaking in action of claim and delivery (Livingston 7 Bos 670); execution of contract purporting to be signed by president of defendant corporation, execu- tion by authority denied (*Sam 161 AD 539, 146 NTS 567); execution of note by defend- ant corporation (Thorn 10 How 19); facts alleged concerning dealings with defendant, proper remedy by motion for judgment on answer as frivolous, not by motion on trial to direct verdict (Little & Ives Co 157 NTS 352); filing notice of lien, giving and filing of bond, recovery of judgment against prin- cipal foreclosing lien and service of copy of judgment on defendant surety (Roch- kind 123 AD 808, 108 NTS 224'dis op 1151); furnishing board and lodging to defendant (Byrne 3 LawB 100); indebtedness to plain- tiff suing as administrator (*Morrow 3 AbP 328); indorsement and transfer of note sued on to plaintiff by codefendant indorser, an- swer of maker (•Flood 13 How 112); In- dorsement and transfer to plaintiff for value, presentation of note sued on for pay- ment, refusal to pay and protest, whether note remains wholly unpaid, indorsement and transfer to plaintiff for value admitted (•Byrne 24 AD 152, 48 NTS 788); indorse- ment of note (•Richter 15 AbP 346) by payee to plaintiff, action against maker (•Hecker 5 AbP 453, 6 Duer 6S1); judgment not given, proper procedure motion to strike out, when defendant can justify ('Harley 210 NT 405, 104 NB 946); loan of money (Bloch 131 AD'859, 116 NTS 339); marriage, and alleging plaintiff's discovery of adultery more than five years before commencement of action for separation (*Allen 125 AD 838, 110 NTS 303); matters of public record, action to recover personal tax (City of NT 180 NT 41, 72 NE 629); partnership of plaintiffs, transfer of note to them and their ownership ('Duncan 6 AbP 304, 3 Bos 103); plaintiff being owner and holder of note sued on, therefore cannot admit or deny (•Temple 6 How 329); presentation of note for payment action against indorser (•Flood 13 How 112); recovery of judgment and re- turn of execution unsatisfied, against defend- ant corporation, alleging commencement of dissolution proceedings but that no judg- ment therein has been entered in answer to sequestration proceedings (Morgan & Co 45 Mis 130. 91 NTS 882); service of notice of entry of judgment on attorney for de- fendant, action on appeal bond (•Hill 39 AD 42^4, 57 NTS 355); taking extension of mort- gage by agreement reciting ownership by plaintiff, separate defense of usury between original parties to mortgage (Preston 140 A D 144, 124 NTS 1031); terms and conditions of lease whose execution admitted, cove- nant to pay rent, and performance by plain- tiff, demand for rent sued for denied (Col- lis 13 Daly 425); transactions with defend- ant alleged, presumptively frivolous (Cer- llan 155 AD 118, 140 NTS 47); truth of any of allegations of complaint, action on note (•Stockton 24 Mis 300, 52 NTS 1006)- work and labor done and materials furnished for agreed price (Little & Ives Co 157 NTS 352); work and material on clothing at r. 104 OLEVENGER'8 RULES OF CIVIL PRACTICE 94 agreed price, presumptively frivolous (Cer- llan 165 AD 118, 140 NYS 47). Ibeave of court not granted: to bring action pending appeal by defendant in original ac- tion, widow sue lessee on judgment declar- ing her entitled to dower in premises (•Bed- low 45 AD 557, 61 NYS 371). Married woman: no separate estate, action against on contract (*Aitken 15 AbP 319). Uatnrity of Indebtedness: denial that amount due for goods sold became due on certain date, admission that sum due as claimed by plaintiff (Aiken Lambert & Co 27 Mis 629, 59 NYS 486). Uemorandum character: of note sued on (Plant 4 AbNS 146, 7 Rob 271). Mental unBoundness : of plaintiff at time of answer and of commencement of action on note ("Williams 7 AD 345, 39 NYS 941). Mistaken construction of agreement: affirma- tive defense based on, mortgage foreclosure (•Barney 37 StR 533, 13 NYS 685). Mortgagre: deny that .plaintiff owner and holder, allege plaintiff not real party in interest (Grinnell 65 How 399). ITecessary and proper party: certain person is, facts alleged showing liability of de- fendant that of surety for person named, mortgage foreclosure (•Walt 32 AD 168, 62 NYS 965). Ko profits: in action on equitable assignment of share of partnership profits to pay debt of partner, immaterial allegations ('Hunger 61 NY 251). Nonpayment; denied, other matters, action on bond ('Rosenberg 84 NYS 171). ITonpresentatlon of claim: for damages from widening of highway to town board, no audit by board, money to pay not raised by taxation, order for widening reversed on appeal ('VanAlstyne 41 NY 174). Nonresidence: of defendants, no property in state, not served with process within state, appearance voluntary (Sweetser 11 Mis 107, 31 NYS 995). ITote: delivered by plaintiff to third person before action thereon commenced ('Smith 14 AbP 262); denial that it or any part thereof had not been paid and that it was payable, allegation that it was given by mistake for too great a sum (Manf Nat Bk 6 Hun 375); given for extended credit: not alleged to have been negotiable (Webster 13 Hun 180); if plaintiff owner or holder same obtained by fraud and without considera- tion, no facts stated (McMurray 5 How 14); indorser deny all allegations except making and endorsing (•Law 9 WkD 38); maker and payer alleging indorsement for consid- eration by another, allege that he is dead, and his representatives not parties, that plaintiff extended time of payment to such endorser, that defendant payee indorsed for accommodation without consideration, and no knowledge sufficient to form belief as to incoj-poration of plaintiff (First Nat Bk 22 WkD 569); making and delivery admitted, no other material fact alleged in complaint denied, that plaintiff is a banking corpora- tion and that there is no such corporation as First National Bank of Saratoga as al- leged in complaint, denied on information and belief (First Nat Bk 4 AD 421, 38 NYS 859); not to be negotiated, other allega- tions (Plant 7 Rob 271); payable at bank, controvert allegation of presentment at ma- turity, allege plaintiff not sole owner but owns note jointly with another (Tompkins 10 How 309); protested no denial, but alle- gation that plaintiff ought to maintain ac- tion for protest fees as defendant was maker (Mixer 15 NYS 782). Nothing due on mortgage: extension agree- ment alleged, admission that mortgage be- come due by its terms before suit com- menced foreclosure suit commenced ('Beach 35 AD 566, 56 NYS 130). Notice Insufficient: two days (•Law 9 WkD 38). On motion: to strike or for such other " order " as the justice shall deem proper (•Darrow 5 How 247). Open account: between parties for work and labor action on note (Ellzabethport Mf g Co 13 AbP 86). , . ..x„ J Ownership: by and delivery to plaintiff de- nied, action on note (•Lord 4 Sand 696, 1 CodeR 322); by plaintiff of claim sued on denied, assignment to plaintiff not denied (Fosdick 22 How 158); by plaintiff of trade- mark denied ('Faber 11 AbNS 399); denied, action on note (•Chadwick 13 AbP 249, 22 How 23); plaintiff not lawful owner and holder of note, complaint not alleging en- dorsement to, or delivery to plaintiff by defendant maker (•McKnight 3 Duer 615). PalT>able frivolity: necessary to authorize Judgment (Kay 44 NY 565). Part only frivolous: judgment cannot be ren- dered for plaintiff (•Colt 50 Hun 366, 3 NYS 354); one paragraph good (•Herbert 1 LawB 89); part good (•Grocers' Bk 6 Hun 18). Partnership with codefendant: denied, per- sonal injury action (Curran 141 AD 659, 125 NYS 993). Payment: action on note (•Struver 9 AbP 23, 2 Hilt 475); and general denial, mortgage foreclosure (•Moody 15 NYS 119, 21 CivP 89). Performance: in another state under law determining liability on death of promisee, action on annuity contract (•Dancel 67 AD 498, 73 NYS 875); of conditions denied in language of complaint (•Hudson Cos 113 NYS 997). Pleading remains In case: when judgment granted because frivolous (Hagerdorn Merz Co 178 AD 483, 165 NYS 99), becomes part of Judgment roll (Briggs 23 NY 162). Practice: motion for Judgment on answer as frivolous 'proper, not for judgment on plead- ings, defendant should have opportunity to Justify answer (Cerlian 155 AD 118, 140 NYS 47); motion to strike one or more de- fenses as sham may be united with appli- cation for judgment or remaining defenses as frivolous (Kay 44 NY 565; PvMcCumber 18 NY 315, afg 27 Barb 632, 15 How 186); remedy for frivolous pleading, motion for judgment (Hagerdorn Merz Co 178 AD 483, 165 NYS 99), not motion to strike (Barwin 146 AD 319, 130 NYS 781); when defendant denies on information and belief nonpay- ment of note sued on and alleges payment by assignment of bond and mortgage'on in- formation and belief is not motion for judg- ment on pleading as frivolous but to strike as sham (Hyland 88 Mis 295, 150 NYS 613). Principal place of business of corporation: denial of allegation that it was in New York City, action against telephone com- pany to collect taxes assesed against it in New York City (•Austin 8 Mis 11, 28 NTS 77). Priority! of plaintiff's lien denied, priority of defendant's lien, the facts in regard to which are stated, alleged, mortgage fore- closure (•Older 8 AD 518, 40 NTS 892). Quality: and value, general denial as to, action for goods sold ('Youngs 46 NT 672); not correspond to sample, no offer to return, action for goods sold (Toungs 2 Sweeny 248, rvd 46 NT 672). Heal party In interest: plaintiff not, action on note ('Tamisier 17 AbP 187). Reason for refusal to execute papers; did not know force, action to obtain reassign- ment of certificate of sale of public land (Deerman 29 StR 636, 9 NTS 91). Bent: partial defense not showing surren- der or consideration for new agreement (Halliday 38 Mis 116, 77 NTS 98). Itepresentative capacity: issue as to, action by administratrix de bonis non (•Newton 14 StR 397). Sale: breach of contract by refusal to ac- cept and pay for goods denial of allega- tions to tender, refusal without cause to accept, performance by plaintiff, and that 95 PLEADINGS rr. 104, 105 sum claimed is due ('Andreae 56 NTS 614); to " the above named defendants " denied, only three of four defendant partners an- swering (P & W Ref Co 13 CivP 122). Sureties of bank: sued for money deposited by public officers, allege that there is no such banking corporation, that name is cover for individual banker, and that offi- cers were not authorized to deposit money with such instltutioni (PvMcCumber 15 How 186. 27 Barb 632). Surety not notified: of death of principal and so deprived of opportunity to obtain col- lateral security for its protection, sepa- rate defense in action on appeal bond (Allen 144 AD 509, 129 NYS 228). Tender of: amount due on mortgage before service of summons in foreclosure suit (•Warner 33 AD 641, 53 NYS 805); pay- ment, facts not stated, legal conclusion (Cook 102 Mis 260, 168 NYS 818). Time of waiver: of demand, protest, etc., of note by defendant indorser, after maturity tho defendant thought note had not ma- tured CWyckoff 5 CivP 410, 50 Supr 196). Title of: applicant to register title on ex- aminer's report denied (*Partenf elder 157 AD 462, 142 NYS 915, afd 211 NY 355); third persons, to proceeds of consigned goods, set up by consignee in consignor's action for conversion (Barnard 3 Daly 6). Ultra Tires: designation by canal board of individual banker under name in which he does business to receive canal tolls and to take security for such deposits, action to recover same (PvMcCumber 18 NY 315, afg 27 Barb 632, 15 How 186). TTnanlmouB: as to validity of denials, ap- pellate division must be to authorize strik- ing of answer as frivolous (Curran 141 AD 659, 125 NYS 993). Undertaking' on appeal: allege that judgment debtor owned real estate, and sheriff re- turned execution before expiration of 60 days at plaintiffs request, without attempt- ing to raise money out of real estate (Wood 1 Hilt 410). Usury: allege discount of drafts at usurious rate contrary to statute and amount of interest taken, deny legal existence of plaintiff's national bank (*Nat Bk of Metrop 48 Barb 256); between defendant and another defendant in relation to mort- gaged premises in foreclosure and that defendant's wife not made party (Kay 44 NY 565). 'Wliole answer: must be had to characterize as frivolous (Hunger 61 NY 251); must be frivolous to authorize judgment (Strong 53 NY 497; Hagerdorn Merz Co 178 AD 483, 165 NYS 99). rRIVOIiOUS ANSWER TREATED AS NVImIi AND NEVr FX^EADING AIiI^OWED — After appeal: from special term to appel- late division, from decision on order to strike part of answer and for judgment on rest as frivolous, special term cannot allow time after service of order of affirm- ance to plead over but should stay proceed- ings and leave it to appellate division to determine whether on affirmance, such leave granted (Schwabe 157 AD 672, 142 NYS 652). Good faith: in interposing answer held frivolous (Swinburne 58 How 312). Holder of note: maker deny on information and belief that plaintiff payee is still (Marine Bk 1 LawB 13). Xnowledg'e insufficient to form belief: as to whether defendant, last indorser, indorsed and transferred note to plaintiff (Fales 12 How 153). Ownership of goods sold: for which action brought, in principal and not in plaintiff agent (Reilly 13 AbP 255, 22 How 93). Person for whom services rendered: riot for defendant any more than for other citizens, action for legal services to public officer in proceedings to gain possession of office (Hale 66 How 387). FRIVOIiOUS REPI^Y TREATED AS NVLIm AND JUDCrMEITT CrlVEN — Affirmative relief: not sought by answer (•Henrlques 27 AD 18, 50 NYS 108). Brief: of 7000 words necessary in support of objection (»L.loyd 20 Mis 141, 45 NYS 809). Collusion: and defect of jurisdiction alleged as to previous divorce pleaded in answer (♦Lloyd 20 Mis 141, 45 NYS 809). Information and belief basis of denial as to: accounts settled by decree of surrogate in action for accounting by trustee under will (Childs 150 AD 656, 135 NYS 972). Knowledge or information snSlcleut to form denial as to: allegation that cause of ac- tion did not accrue in form of resident of New York, and of statute of limitations in New Jersey, a public record (Olsen 127 NYS 697); judgment recorded, by plaintiff for same cause in another action had been paid and satisfied (Dahlstrom 198 NY 449). AMENDISEITT FENDIM-G- MOTION TOR JUDGMENT FOR PRIVOI^OUS ANSWER FROFER — After notice: of motion and within 20 days after service of original answer (Burrall 5 Duer 654). Complaint on note: payable to maker's order setting out copy and alleging sum due plaintiff, negotiation not alleged ("Arnold 1 LawB 26). STRIKING OF FI^EADING TIMEI.V — Before expiration: of time to amend answer, frivolous (Ross 25 Hun 742). AFFi;lCATION FOR IiEAVE TO AMEND FROFER — Pleading stricken: (Jaeger 39 Mis 543, 80 NYS 356; Doll 43 Mis 417, 89 NYS 331). To court: when judge granting judgment for frivolousness of answer refuses to enter- tain it (Stedeker 4 LawB 31). TERMS ON AI.I.OWING NEW FI^EADING DEEMED JUST — Pay costs to date: defendant serving amended answer (•Gibson 139 AD 51, 123 NY'S 604). AMENDED ANSWER FROFER — New defense set up: known to defendant when original answer served ('Stedeker 10 Daly 466). RUIiE INAPFIiICABI^E — Counterclaim: (Baums Castorine Co 92 Hun I, 37 NYS 913). Portion of answer: (Siriani 12 Mis 213 34 NYS 26). Test sufficiency: of defense (Austen 8 Mis II, 28 NYS 329). RUI^E CITED— ErroneousOiy: Rule 106 intended (Booth [Jan 28, 1922] 66 NYLJ 1502). Rule 105. Motion addressed to pleading. A motion under rules one hundred and two, one hundred and three or one hundred and four must be noticed within twenty days from the service of the pleading to which the motion is addressed. The time to make such motion shall not be extended unless notice of at least two days of an applica- tion for such extension be given to the adverse party. EDITORIAXi NOTES— 1888, 1896, 1900, 1910, 1913. General Rule 22 Source: General Rule of Practice 22. For- read: "Motions to strike out of any plead-i merly Rule 43 of 1849; Rule 40 of 1852; Rule ing matter alleged to be irrelevant redun- 50 of 1858; Rule 28 of 1871, 1874; Rule 22 dant or scandalous, and motions to' correrf of 1877; Rule 28 of 1880; Rule 22 of 1884, a pleading on the ground of its being 'so in- rr. 106,106 OLEVEN&ER'S.RVhES OF CIVIL PRACTICE m definite or uncertain that the precise mean- ing 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 extension, stating the time and place therefor, of at least two days, shall be given to the ad- verse party." Text Im Italics Is new matter, inserted June 17 1921. Star (*) means read DTot into BEADIiINIi in capitals. For illustration see Rule 1, MOTIOITS TO MAKE DEFIITITE AND CER- TAIN TIMEI^V— After accepting plea: and going to trial ('Farm & Cit Bk 6 Bos 181, afd 33 NY 69, 29 How 573). After answer: prior rule under omitted part of General Rule of Practice 22 (* White 44 AD 503, 60 NYS 971; »Carrillo 25 StR 423, 6 NYS 305; 'Huber 11 NYS 377). After application to open default: with leave to answer (•Mulinos 93 Mis 189, 156 NYS 1032). After demand of Items of account: which were furnished ('McKinney 12 How 22). After extension of time: to answer or de- mur (•Brooks 36 Hun 70); to answer with- out reserving right to make motion (*Post 13 AD 124, 43 NYS 59); to answer or otherwise plead ('Peters 150 AD 249, 134 NYS 881): to plead or otherwise move (Hammond 5 AbNC 105). After twenty days: after complaint served (•Simmons 21 AbNC 469): after service of answer (•Rogan [Jan 19, 1922] 66 NYLJ 1371). Answer served through post office; forty days time to make motion (Borsuk 93 AD 306, 87 NYS 851). Seven nxonths: after service of answer (•Roosa 8 How 237). Time runs: from filing of answer to amended complaint (Walker 1 AbNS 406). Twenty-one days after service: (McDonald 28 Mis 35, 59 NYS 787). MOTIONS FOR IMFROFES UNION OF CAXrSES OF ACTION TiniELV — At trial: (•Redley 105 Mis 52, 172 NYS 517). MOTIONS ON SHAM FI^EADINO TIMEIY— Frtor m.otlon pending: second motion can- not be made (Kellogg 15 AbP 286). MOTIONS TO STRIKE OUT IRREIiEVANT, REDUNDANT OR SCANDAI^OUS MAT. TER IN A PIEADINO, TIMEIV — Affidavit must show: that answer was served and when served (Rogers 6 How 66). Affirmative showing; that motion timely need not be made by moving party (Barber 4 Sandf 705). , ,^. ., » After answer; prior rule under omitted part of General Rule of Practice 22 (Williams 32 StR 455, 10 NYS 895; Gridley 7 CivP 215). After noticing cause: for trial (•Esmond 5 How 44). After reply to counterclaim: where answer contained special matter in defense (Sheri- dan 138 AD 436, 122 NYS 800). At the trial: (•Smith 30 NY 655). By answering; after service of notice of motion, right to strike out waived ('Goch 8 How 439). Extension of time to answer: without reserv- ing right to strike out (•Sherman 90 AD 542, 85 NYS 727). More than a year; after five answers served, altho on time as to one answer ('Barber 125 AD 412, 109 NYS 1023). More than twenty days after service; of answer (*Siriani 12 Mis 213, 34 NYS 26); of complaint ('Bowman 5 Sandf 657; 'NY Ice Co 21 How 234, 12 AbP 74). Noticing case for trial: within twenty days (Morron 162 AD 466, 147 NYS 931). Order extending time to answer: supersedes and annuls motion already noticed ('Marry 34 How 238). Within twenty days after service; of an- swer (Thompson 45 NY 468; Doran 20 How 503; Blake 18 How 240); of complaint (Ben- edict 6 How 352). EXTENSION OF TIME TO MAKE MOTION PROPER — Extending time to answer: and to make such application as he should be advised (Lackey 10 How 155). Regular order; of court after irregular one accepted or acquiesced in by party (Laad- messer 157 AD 74, 141 NYS 730). Rule 106. Motion for judgment; when the defect appears on face of complaint. Within twenty days after the service of the complaint, the defendant may serve notice of motion for judgment dismissing the complaint, or one or more causes of action stated therein, where it appears on the face thereof: 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties for the same cause. 5. That the complaint does not state facts sufficient to constitute a cause of action. § 492, except as above stated, under " Source." Civil Practice Act references: Demurrer abolished, objections to pleadings, how taken, CPA § 277; Certain objections, when waived, CPA § 279; Objections, how stated. CPA § 280; Motion as to part, pleading as to remainder, CPA § 281; Effect of serv- ing answer or reply pending a motion, CPA § 282; Pleading after disposition of mo- tion, CPA § 283. Star (•) means read Not into HEADIINE in capitals. For illustration see Rule 1. service of motion for judgment timei;y — After trial before a referee: and filing of his report (•PyroGravure Co 30 Mis 658, 64 NYS 520)'. More than twenty days elapsed; after serv- ice of amended complaint ('Brown [Jan 18, 1922] 66 NYLJ 1356). editoriaii notes — Source: CCP § 488, subdivisions 1, 2, 3, 4 and 8, verbatim, except introductory para- graph rewritten from CCP § 492. CCP § 488 revised from CF § 144, amended by adding subdivision 5, as amended by L 1877, c 416. CCP § 492 revised from CP § 145, second sentence, consolidated with CP § 151. CCP § 488, introductory paragraph, read; "The defendant may demur to the complaint, where one or more of the following objec- tions thereto appear upon the face there- of: " CCP § 492 read: "The defendant may demur to the whole complaint, or to one or more separate causes of action, stated therein. In the latter case, he may an- swer the causes of action not demurred to." Text in italics is new matter, inserted June 17, 1921. Revisers' Note of 1921; Rule 106 is stated by the Rules Committee to be " new." whereas it Is CCP § 488 verbatim and CCP 97 PLEADINGS r. 106 Within twenty days; after complaint served (Pelzi [Feb 11, 1922] 66 NYLJ 1687). DEPECTS AFPEARINO ON PACE OP COM- PLAINT — Accouutiiv?: pendency of another action (Garvey 14 CivP 106, 14 StR 909; 'Parker 3 AD 149, 38 NTS 164). Assault and liattery: jurisdiction of subject matter and of defendant ('Koenig 8 AbP 384). Bills and notes: promissory note pendency of another action ('Hardon 89 Hun 487, 35 NYS 405). Ejectment: incapacity of infants (Bartholo- mew 67 Barb 86). Executors and administrators: administra- tor's capacity to sue (Secor 47 Hun 281), with will annexed (Varnum 59 Hun 554. 14 NTS 242); foreign administrator (See Rob- bins 18 AbP 191, 26 How 15). Porelgrn corporaitioiL: bank incapacity of plaintiff suing as one of its registered ofR- cers generaJly alleged (Myers 6 AbP 198, 14 How 149, 6 Duer 678); incapacity to sue (Parmelee Co 171 NTS 579); nonresidence of plaintiff in action against (*Gervais 13 NYS 589). Guardian and ward: incapacity of general guardian to sue (Van Zandt 67 AD 70, 73' NYS 600, afd 175 NT 150). Improper joinder: of actions (Fitzpatrick [Dec 9, 1921] 66 NTLJ 855). Partition: another action pending (Horn- fager 6 How 279). Pendlner of other action: (Bishop 7 Rob 194). Statute of frauds: contract within (See Housinger 90 Hun 589, 35 NTS 986, afd 1571 NT 674; »Crane 139 NT 379). FEBSOir OP DEPENDANT: COURT WITH- OUT JURISDICTION — Poreign corporation: suit not regularly com- menced, objection must be raised not by demurrer but by motion to set aside, prior rule ("Nones 5 How 96, 8 Barb 541); sum- mons not served on officer within city (Fisher 67 Hun 191, afd 52 Supr 179). Injunction: against interference with wires of plaintiff (See Atlantic & P Tel Co 87 NT 355). Nonresident of county: sales action in county court (Gilbert 11 NT 544). Partnership: no service of summons on one defendant (See Hoffman 51 StR 199, 137 NT 621, rvg 50 StR 218). SUBJECT OF ACTION: COURT WITHOUT JURISDICTION — Bankruptcy: recovery by receiver of money had and received on sale of stock (Bilder 148 AD 647, 133 NTS 425). City court: executor sued both individually and as executor (*Burnstein 49 Mis 469, 98 NTS 853). Corporations: domestic, place of business in NT City, Albany County Court (Heenan 34 Hun 602). County court: over $2000 claimed in action for assault (Hackett 156 AD 58, 141 NTS 172); sales, defendant a nonresident (Gil- bert 111 NT 544). Poreigu corporation: contract not made in state (Fisher 67 How 191, afd 62 Supr 179); obligations and business outside state (See Chase 37 Supr 334). Motion to set aside service: does not raise question of jurisdiction (Manning Maxwell & Moore 120 AD 735, 105 NTS 662). Suj>erior court, city of New York: to en- force lien on premises in city of Brooklyn (See Cook 3 Duer 643). Trespass on lands: situated in other states (Dodge 108 NY 445). iMlSaAI. CAPACITY' TO SUE: FLAINTIPF WITHOUT— Bank: insolvent, action by receiver for divi- dends improperly declared (Butterworth 39 Barb 192, 24 How 438); no allegation that plaintiff was a corporation or entitled to sue (*Phoenix Bk 40 NY 410, afg 41 Barb 571); Superintendent of banlis in own name. instead of name of delinquent corporation (Van Tuyl 153 AD 409, 138 NYS 541). Bridges: town as owner to recover for dam- ages to ('Town of Pierrepont 4 Hun 696, rvd 72 NY 211). Cestui q.ue trust: action by to recover on promissory note held by trustee refusing upon demand to sue, where rights of plain- tiff under trust not shown (Aufermann [Dec 3, 1921] 66 NTDJ 777). Corporation: no allegation of incorporation (•Noye Mfg Co 8 Mis 353, 28 NTS 693), with capacity to sue (See Fulton F Ins Co 37 NY 648); treasurer suing to compel officers to account for otHcial conduct (Loughlin 152 AD 466, 137 NTS 257). Executors and adsilnistrators : administrator with will annexed on claim accruing to executor whom he succeeded (*Varnum 59 Hun 654, 14 NYS 242); failure to allege ap- pointment of administrator (Secor 47 Hun 281); forfeiture of bond, sent by assignee of claim (See Nanz 122 NY 631); mortgage foreclosure by executrix and executor (♦Murray 1 Hun 49, afd 68 NY 621). Poreign corporation: failure to obtain certi- ficate of authority and pay license fee (See McGrath 17 AD 246, 45 NYS 687); not hav- ing complied with certain restrictions as to doing business in state (See Parmelee Co 171 NY 579); on assigned contract made out of state (•O'Reilly 18 Mis 423, 41 NTS 1056). Foreign receiver: in behalf of corporation to collect stockholders statutory liability (•Pough 52 How 22). Guardian and ward: action by general guard- ian of infant in his own name (See Perkins 114 NT 359); general guardian against sureties on official bond of predecessor after an accounting ("Van Zandt 67 AD 70, 73 NTS 600, afd 175 NT 150); mother as guardian in socage in ejectment ('Barthol- omew 67 Barb 86). Infants: action in name of guardian ad litem instead of infant (See Spooner 115 NT 22). Mortgage: assignee of (*Simon 64 NT 657, afg 6 Hun 305). Objection of want of capacity: not raised by alleging want of facts constituting cause of action (O'Reilly 18 Mis 423, 41 NTS 1056; Bank of Dowville 11 How 216; Hobart 5 Duer 672). Penalty; recovery of by commissioners of highways without showing suit is in offi- cial capacity (Gould 19 Barb 179). Receiver: duly appointed in supplementary proceedings (*Ward 157 NY 301); invalid appointment of (See Viburt 3 AbP 119). Sequestrator of corporation, duly appointed in foreign state: in suit to recover prop- erty fraudulently conveyed ('Barclay & Lans 25). Trustees: action on promissory note ('Nel- son 26 NT 410, 15 How 305). Waiver: by demurring specifically on ground or no cause of action, prior rule (Van Zandt 26 StR 963, 7 NTS 706; Secor 47 How 281)- by failure to demur, prior rule (Robbins 18 AbP 191, 26 How 15); by failure to de- mur or answer, prior rule (Town of Pierre- pont 4 Hun 696, rvd 7 NT 211). ANOTHER ACTION FENDING BETWEEN SAME PARTIES — Disoontinuan.ce: of other action in so far as plaintiff concerned ('Susquehanna SS Co Inc [Jan 4, 1922] 66 NTLJ 1175). Master and servant: recovery of commis- sions involving only some of the same parties (Foxall 162 NTS 588). Release: recovery of money and cancella- tion of release involving the claim (Damb- man 51 How 337). Trusts: for accounting and removal of all trustees and special proceeding to remove one ('Hamilton 33 Mis 64, 68 NYS 144)- trustees and cestuis que trust (Groshon 16 Barb 461). r. 106 CLETENOER'S RULES OF CIVIL PRACTICE 9S ANOTHEB ACTION PENDIN-O FOR SAICE CAUSE — Accountlner: and to subject real estate to judgment of first action ('Parlcer 3 AD 149, 38 NYS 164). Attorney and client: recovery of money held by attorney (See Mott 36 Hun 569). BUls and. notes: recovery on promissory note and suit in court of another state (Barrows 5 How 51). Condemnation pxoceeOlng: and statutory ac- tion to enjoin talcing of land ('Queens Water Co 131 AD 91, 115 NYS 495). Ejectment: (Dawley 9 Hun 461, rvd 79 NY 390). Fraudulent conveyances: actions to set aside (•Geery 11 Hun 428). Meclianlcs lien: enforcement of and recovery of debt (*Power 39 Mis 707, 80 NYS 960). proceeding: is not an action as that word is used in the Code of Civil Procedure (•Queens County Water Co 131 AD 91, 115 NYS 495). Befonnatiou of deed: and recovery of money (•Haire 5 NY 357). Release: recovery of money and cancella- tion of release involving the claim (Damb- man 51 How 337). Sales: to recover price and for replevin (•Cobb 68 AD 179, 74 NYS 56); unpaid judgment for price and for false represen- tations (•Russell 150 AD 52, 134 NYS 463). Trust: by trustee for accounting and dis- charge and by cestuis for same purpose (Groshon 16 Barb 461); to impress, ex- maleficio on property and action at law for damages for being divested of the prop- erty (•Rockford [Jan 24, 1922] 66 NYLJ 1444). ■Waiver of objection: by failure to demur, prior rule (Garvey 14 CivP 106, 14 StR 909). FACTS UTStrFFICIEITT TO CONSTITUTE CAUSE OF ACTION — Accounting': (*Emery 20 NY 62; •Case 35 NY 385); for boosting corporate stock in newspaper (Black 70 AD 16, 74 NTS 1095); for rents and profits from certain premises (•Garvey 14 CivP 106, 14 StR 909); to open, on ground of fraud (Pfizer 77 Mis 641, 138 NYS 566). Agency: contract of employment made by agent (*Budd 40 Mis 52, 81 NYS 152). Arrest: undertaking on, no allegation of re- covery of judgment (Moses 37 Supr 393). Assault and battery; allegation as to force and violence (*Koenig 8 AbP 384). Assessment: vacation of as cloud on title (Bno 7 Hun 320, rvd 68 NY 214). Assignment: of part interest in state con- tract for publication of Colonial History (•Olcott 39 NY 436); order for money pay- ment, failure to allege work completed and money due out of last payment (Mayor Lane & Co 87 Mis 150, 149 NYS 1045); for benefit of creditors, to set aside as fraudu- lent (•Higgins 2 CivP 317); to set aside as in fraud of creditors (•Hobart 5 Duer 672). Bankruptcy; recovery by receiver of money had and received on sale of stock (*Bilder 148 AD 647, 133 NYS 426); recovery by trustees under foreign bankruptcy law against residents (Mosselman 1 Hun 647). EanJEs: against former president for use of fictitious notes in lieu of money (Butter- worth 39 Barb 192, 24 How 438); breach of duty in collection of draft (Montgomery Co Bk 7 NY 459); superintendent of Banks against surety company (•VanTuyl 153 AD 409, 138 NYS 641). Bills and. notes: bill of exchange (•Bank of Lawville 11 How 216; •Myers 6 AbP 198, 14 How 149, 6 Duer 678); nonnegotiable "for a valuable consideration " (Kinsella 79 Mis 619, 140 NYS 513); promissory notes (•Harden 89 Hun 487, 36 NYS 405; •Nel- son 26 NY 410, 15 How 305; White 14 How 282; •Prindle 15 NY 425; •Hall 142 AD 75, 126 NYS 206; •Irving Natl Bk 10 AbNC 85; •Phoenix Bk 40 NY 410, afg 41 Barb 571; •Moore 8 Hun 557); breach of warranty of the genuineness of ('Gabay 66 AD 507, 7S NYS 381); defect in jurat, remedy not by demurrer but by motion, prior rule (State Bk of Olean 5 Hun 114); "for a valuable consideration" ('St Lawrence Co Nat Bk 153 AD 551, 138 NYS 116, rvg 76 Mis 633, 135 NYS 461); interest of plaintiff therein not shown (Aufermann [Dec 3, 1921] 66 NYLJ 777); plaintiff entitled only to ac- counting (Edson 29 Hun 422). Bridges: recovery by town for damages to (•Town of Pierrepont i Hun 696, rvd 72 NY 211). " Cancellation of instruments: deed, on ground of fraud (Ross 8 Hun 185, afd 70 NY 8). Canal: injury from obstruction of (•Fulton P Ins Co 37 NY 6*8). Civil service: failure to appoint appli- cant after successful examination (•Gillin 6 StR 904). Conspiracy: by blacklisting (Amann 76 Mis 5, 133 NYS 1076). Contracts: breach of, to lease, performance by plaintiff not specifically alleged or stated as "duly performed" (Park [Dec 2, 1921] 66 NYLJ 762), to purchase bonds (•Sims 167 AD 38, 141 NYS 673), to sell, payment or tender of payment not alleged (Park [Deo 2, 1921] 66 NYLJ 762); due performance on part of plaintiff not al- leged (Ronker [Dec 2, 1921] 66 NYLJ 762); for damages for leakage, claim therefor not made as required by contract, but waiver by notice to plaintiff by defendant of disclaimer of responsibility prior to time for making claim alleged (J Aron & Co [Deo 3, 1921] 66 NYLJ 778); for sale of coin, without tender or offer of per- formance (Chatterton 1 AbNC 88); failure to state to whom and at what place offer of performance made (Mills 1 AbNC 93); rescission of on ground of fraud (Van Liew 6 T&C 648); to pay for certain services' without alleging for whom or at whose re- quest rendered (Spear 12 AbP 437, 34 Barb 522, 22 How 30); transfer of option on min- ing property (Sloan 164 AD 687, 149 NYS 1015). Conversion: damages for, of draft (Gray 2 Rob 500). Corporations; action for accounting of cor- porate property against stockholder (Gins- berg 151 AD 627. 13e> NYS 354); against directors of consolidated company to de- clare dividends of earnings prior to con- solidation (Chas 37 Supr 334; WebbI 39 Supr 4); against stockholder to re- cover debt (•Perkins 31 Barb 84); col- lection by foreign receiver of stockhold-> ers statutory liability (tugh 52 How 22); directors, refusal to accept advantage- ous proposition conditioned on resignation (Bayles 11 Mis 207, 32 NYS 1117); for penalty, failure to allege that treasurer had not made statement (Troughton 151 AD 655, 136 NYS 200); fraud in inducing broker to undertake to sell stock (PoUak 78 Mis 360, 138 NYS 429); fraudulent conspiracy to obtain trust money of plaintiff (•Pier- son 61 How 134); no allegation of incor- poration in action for services rendered and .goods delivered (•Noye Mfg Co 8 Mis 353, 28 NYS 693); option to purchase all stock of (•Wamsley 28 NYS 423); promis- sory note without stating whether domestic or foreign (First Nat Bk 11 CivP 61; •Harmon 79 Hun 392, 29 NYS 783, afd 143 NY 665; 'Hafner & S Furn Co 10 CivP 176; •Farm & Mech Nat Bk 17 StR 381, 15 CivP 250); reorganization, issue of new shares in exchange for plaintiffs stock according to agreement (•Marie 83 NY 14); stoclc- holders suit, based on invalidity of ex- change of new securities for debenture bonds (•Politz 142 AD 756, 127 NYS 782); to compel return of stock on account for value (•Holmes 180 AD 409, 167 NYS 840); to rescind fraudulent contract ('Continen- dd PLEADINGS r. 106 tal Securities Co 75 Mis 234, 133 NTS 560;' •Continental Securities Co 150 AD 298, 134 NYS 635); to recover dividends under a guaranty ('LoriUard 86 NY 384). Counties: claim for education and mainte- nance of deaf mute ('Western NY Inst 8a Mis. 63, 143 NYS 241). Covenants: breach of personal, relating to family pass on railroad (Hasbrouck 98 AD 563, 90 NYS 977). Creditors l>ill: ('Newbould 14 AbP 80). Death: recovery of damages for ('King 112 AD 90, 98 NYS 891; 'Kaufman 151 AD 28, 135 NYS 363). lijectuient: ('Bartholomew 67 Barb 861); no title in plaintiff (Bradley [Dec 21, 1921] 66 NYLJ 1014); omission to describe premises (Budd 18 Barb 494). Eminent domain: to restrain railroad from acquiring land by (Kip 6 Hun 24, afd 67 NY 227). Exchange of property: recovery for fraudu- lent representations inducing ('Prouty 10 WkD 387). Executors and administrators: of rents and: profits on property held adversely to plain- tiffs intestate (Grout 5 Hun 423); on judg- ment in favor of deceased without alleging leave of court ('Freeman 15 AbNC 431); to recover possession of funds of estate (Wetmore 92 NY 76). Foreign corporation: contract between two (See Manning Maxwell & Moore 120 AD 735, 105 NYS 662); on assigned contract made without state ('O'Reilly 18 Mis 423, 41 NYS 1056; recovery on contract with (Fisher 67 How 191, afd 52 Supr 179). Porm of complaint: held extraordinary, but nature not stated (Huson [Jan 4, 1922] 66 NYDJ 1175). Trand: false representations as to financial condition (PoUak 80 Mis 182, 141 NYS 1104); fraudulent representations of buyer as to solvency ('Russell 150 AD 52, 134 NYS 463); purchase of stock induced Ijy false representations ('Stirrup 77 Mis 437, 136 NYS 1052). fraudulent conveyance: to set aside ('Nat Tradesmen's Bk 124 NY 241). Guardian and. ward: action against sureties on bond of general guardian before de- fault established (Perkins 114 NY 359). Qnaranty: to pay renewal promissory notes ('Cahill Iron Wks 27 NYS 931); to secure loans (Hamilton Tr Co 156 AD 307, 141 NYS 232). Heirs: action against to recover for defi- ciency on foreclosure of testators mort- gage ('Hauselt 18 AbNC 142). Husband and wife: equity action by wife as tenant by the entirety to recover profits (Niehaus 141 AD 251, 125 NYS 1071); re- covery by wife of separate estate ('Hill- man 14 How 456). Injunction: against operation of bowling alleys ('Pape 127 AD 147, 111 NYS 354); to restrain disposal of stock and profits (Black 70 AD 16, 74 NYS 1095); to restrain taking of land by city ('Queens County Water Co 131 AD 91, 115 NYS 495). Interpleader: no offer to bring amount into court (Van Zandt 26 StR 963, 7 NYS 706). landlord and tenant: recovery by lessee of lands in possession of third party CPvMayor 8 AbP 7, 28 Barb 240, 17 How 56); to recover taxes which tenant agreed to pay ('Hinton 78 Mis 46, 137 NYS 697). ILiliel: not concerning plaintiff (Fleisehmann 23 Hun 200, afd 87 NY 231); plaintiff a practicing dental surgeon (Gunning 58 How 471). ICaliclotis prosecution: termination of ac- tion in plaintiff's favor ('Moulton 1 AbNC 193, 8 Hun 100). master and servant: action for work, labor and services performed ('Budd 40 Mis 52, 81 NYS 152); breach of contract of em- ployment ('Grossman 206 NY 466); torts of agent ('Buffalo Oil Co 3 StR 450); wrongful discharge (see 'McCargo 206 NY 363; Crotty 149 AD 262, 133 NYS 696). mechanic's lien: foreclosure of ('Albright 170 AD 70, 157 NYS 79). Money had and received: demand for more than entitled to ('Hearn 150 AD 476, 135 NYS 52). ^ ^ ISortgage: allegation that "satisfied ('Glass [Jan 4, 1922] 66 NYLJ 1175); breach of warranty of the genuineness of CGabay 66 AD 507, 73 NYS 381); fore- closure of ('Simon 64 NY 667, afg 6 Hun 305; 'Calvo 73 NY 211, afg 8 Hun 222; 'Murray 1 Hun 49, afd 58 NY 621), and to sue surety on bond to secure part of debt ('Hockstein 150 AD 124, 134 NYS 704). Municipal corporatdon: recovery of money paid under duress for permission to repair and enlarge vault under sidewalk (Title Guar & Tr Co 205 NY 496); taxpayer's ac- tion to cancel lease (Bachia 77 Mis 362, 136 NYS 435). Negligence: action for damages occasioned by, failure to provide proper covers, blankets, and a sound horse to milk wagon driver (Ronker [Deo 2, 1921] 66 NYLJ 762). Objection may be raised: at trial as well as by demurrer, prior rule (Mosselman 1 Hun 647). Partition: failure to allege appointment of executor or administrator for estate (Duer- inger 78 Mis 417, 139 NYS 676); general allegation of seisin in fee simple (Martin 156 AD 327, 141 NYS 396). Partnership: account stated after dissolu- tion of CMackey 8 Hun 180); action against (See Hoffman 51 StR 199, 137 NY 621, rvg 50 StR 218); accounting where as- signment for benefit of creditors shown (Kuehnemundt 46 Supr 188); dissolution of and accounting ('Candee 131 AD 641, 116 NYS 55); to dissolve and to adjudge void certain attachments against creditors (Fielding 60 How 134). Patents: accounting against cotenant of profits from use of (DeWitt 5 Hun 301, afdi 66 NY 459). Public work: conspiracy to prevent com- petition in bidding oh contract for ('PvLord 6 Hun 390). Quieting title: removal of cloud, void deeds (Swart 35 Hun 281). Railroads: to obtain construction of agree- ment whether ultra vires or not in absence of controversy (Ogdensburg 16 AbNS 249, afd 4 Hun 712). Receiver: appointment of (Black 70 AD 16, 74 NYS 1095); recovery of debt due judg- ment debtor without alleging order of ap- pointment filed and recorded ('Scroggs 66 Barb 505, ap dis 55 NY 643); to set aside assignment as fraudulent ('Viburt 3 AbP 119). Beformation: of a deed of conveyance ('Haire 5 NY 357); of mortgage ('Gott- helf 136 AD 1, 120 NYS 210). Sales: failure to allege that company had not set up mill or failure of payment of obligation assumed (Fraser 143 AD 520, 128 NYS 277); nonpayment not alleged (•Salisbury 10 Hun 242). Seiinestrator of foreig'n corporation: suit to recover property fraudulently conveyed ('Barclay 6 Lans 25). Slander of title: ('Dodge 108 NY 445). Specific performance: of covenants to make improvements (*Stuyvesant 11 Paige 415, mfg 1 NY Leg Obs 101); of land contract ('Case 35 NY 385; 'Richards 17 Barb 260; •Giordano [Jan 4, 1922] 66 NYLJ 1172); failure to allege time of demand after se- lection CJacocks 149 AD 558, 133 NYS 1002). Statute of frauds; contract within (See Crane 139 NY 379). Stockholders; to set aside fraudulent stock transaction and compel an accounting ('Continental Securities Co 206 NY 7). Subway: vacation of charter of (See PvNTCity Underg Ty Co 15 NYS 225). rr. 106-108 CLEVENGER'8 RULES OP CIVIL PRACTICE 100 Tax: restrain collection of (•Wilson 6 AbP 6, 15 How 500); recovery by collector from person from whom he failed to collect (•Ward 1 AbNC 449). Telegraph and telephones: failure to de- liver message (•Milliken 110 NY 403; White 153 AD 684, 138 NYS 598); refusal to transmit stock quotations and news (•Friedman 32 Hun 4). Theft Insurance: alleging larceny by trick and device (Delafleld 177 AD 477, 164 NYS Trade marks: injunction and damages for violation of (•Porous Plaster Co 43 Hun 611, 7 StR 249). Trusts; deed of, to have it declared void and set aside as cloud (Hotchkiss 36 Barb 38); by assignee of beneficiary for with- holding income (Batchis 149 AD 713, 134 NYS 350); recovery of expenditures made for benefit of trust estate (•Fowler 28 Hun 195). Unfair competition: conspiracy to ruin plaintiff's business ('Bufealo Oil Co 3 StR 450). Wills: recovery by executor with naked power of sale of award on land taken by eminent domain (Cashman 6 Hun 520); to establish and restore portion fraudu- lently destroyed ('Hook 8 Hun 102). JOINDER 07 GROUNDS PROPER — Mo jarlsdlction: of person and failure to state cause of action (•Siccardi [Nov 19, 1921] 66 NYLJ 605). DEFECTS NOT WITHIN RUIiE — Codefendant: answer of (*Stuart 77 Hun 425, 28 NYS 800). lOisuomer of plaintiff; (•Bk of Havana 20 NY 355, afg 7 AbP 134, 16 How 97). Mortgage: foreclosure of, failure to follow statute as to whether other action to re- cover any part of debt ('Bottom 21 Mis 556, 47 NYS 733). IMPROPER REMEDY BY DEMURRER WAIVED — Argning demurrer: as contested motion (Castorph [Nov 2, 1921] 66 NYLJ 405). rui;e cited — But not applied: (Booth [Jan 28, 1922] 66 NYLJ 1502). Rule 107. Motion for judgment; when the defect does not appear on face of com- plaint. Within twenty days after the service of the complaint, the defendant may serve notice of motion for judgment dismissing the complaint, or one or more causes of action stated therein, on the complaint and affidavit stating facts tending to show: 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties for the same cause. 5. That there is an existing final judgment or decree of a court of competent juris- diction rendered on the merits, determining the same cause of action between the parties. 6. That the cause of action did not accrue within the time limited by law for the com- mencement of an action thereon. 7. That the claim or demand set forth in the complaint has been released. 8. That the contract on which the action is founded is unenforceable under the pro- visions of the statute of frauds. 9. That the cause of action did not accrue against the defendant because of his infancy or other disability. editoriaii notes — Source: First .paragraph is new, except the words " the complaint, or one or more causes of action stated therein," which i^ taken verbatim from CCP § 492; subdivi- sions 1, 2, 3 and 4 are CCP § 488, subdivi- sions 1, 2, 3 and 4 verbatim, made applic- able by CCP § 498; subdivisions 5, 6, 7, 8 and 9 are new. CCP § 488 revised from CP § 14'4, amended by adding subdivision 5, as amended by L 1877, c 416. CCP § 492 re- vised from CP § 145, second sentence, con- solidated with CP § 161. CCP § 498 revised) from CP § 147, as amended by L 1877, c 416., Text m italics is new matter, inserted June 17, 1921. Civil Practice Act references: Demurrer abolished, objections to pleadings, how: taken, CPA § 277; Certain objections, when waived, CPA § 278; Certain objections not waived, CPA § 279; Objections, how stated, CPA § 280; Motion as to part, pleading as to remainder, CPA § 281; Effect of serving answer or reply pending a motion, CPA § 282; Pleading after disposition of motion, CPA § 283. Star (•) means read Not into HEADI^INE in capitals. For illustration see Rule 1. annotations APFIiICABIiE — Defect appearing on face: of complaint (See Rule 106). SUBJECT OF ACTION: COURT WITHOUT JURISDICTION — Work and labor: on materials to be used in repairing ship wholly performed on land, coming under workmen's compensation law (Newman [Dec 30, 1921] 66 NYLJ 1121). ANOTHER ACTION PENDING- BETWEEN SAME PARTIES FOR SAME CAUSE— Old Code actions: both actions pending be- fore Civil Practice Act effective (Cremins [Nov 9. 1921] 66 NYLJ 480). Partition: of same property, tho moving de- fendant, who was plaintiff in first action, asked for accounting of rents (Cremins [Nov 9, 1921] 66 NYLJ 480). RUIiE CITED — Motion granted: with.SlO costs (Ciscoe [Jan 11, 1922] 66 NYLJ 1265). Rule 108. Determination of the motion. If the plaintiff on the hearing of a motion specified in the last rule shall present affidavits denying the facts alleged by the defendant or shall state facts tending to obviate the objection, the court may hear and determine the same and grant the motion, and in its discretion allow the plaintiff to amend the complaint upon such terms as are just; or it may direct that the questions of fact, which shall be clearly and succinctly stated in the order, he tried by a jury or referee, the findings of which shall be reported to the court for its action; or it may overrule the objections, and in its discretion may allow the same facts to be alleged in the answer as a defense. If the objections be made to some of the causes of action, and not to all, 101 PLEADINGS rr. 108,109 judgment may be entered as provided in section ninety-six of the civil practice act or rule one hundred and ninety-five of the rules of civil practice. EDITOBIAIi NOTES — Source: New; CCP § 973 extended. CCP § 973 read: " The court in its discretion may order one or more issues to be separately- tried prior te any trial of the other issues in the case." Text in Italios is new matter, inserted June 17, 1921. Civil Practice Act references: See this Sub- line under Rule 107. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. BIGHT TO PRESENT AFPIDAVITS IN BE- NIAI. OF DEPENDANT'S CI^AIMS NOT EXEBCISED — Plaintiff standing' on defendant's affidavits: (Newman [Dec 30, 1921] 66 NTLJ 1121). ISSUES SEPABATEKV TRIABI.E — Brokers: customer's action against, accounts stated (See Cohen 147 NTS 915). Contract: arbitration as condition precedent and who was the arbitrator (Meacham 211 NY 347); rescission, issue of ratification (■►Commercial 183 AD 106, 170 NYS 552). Counterclaim: issues arising under prior to those on complaint, question not decided (Maag 193 AD 759, 184 NYS 630). Divorce: condonation (Hulse 181 NYS 83). Executors and administrators; right of ex- ecutrix to maintain accounting (Pox 166 AD 718, 152 NYS 431). Guaranty: discharge in bankruptcy and stat- ute of limitations (ScWeestein 188 AD 48, 175 NYS 890). XoxtgageBi res ad judicata and statute of limitations (Reich 171 AD 113, 157 NYS 130). Partnership: whether final settlement had been reached (Pemberton 149 AD 20, 133 NYS 627). Release: validity of, for personal injuries (O'Donnell 92 Mis 710, 156 NYS 342; War- ner 162 AD 458, 147 NYS 803; Terryberry 152 NYS 450; Groez 161 NYS 117; "McGurty 172 AD 46, 158 NYS 285; Writting 153 NYS 108) where it involves same questions as triable by jury, it should not be determined by court (See Schoenbaura 184 AD 944, 171 NYS 20). Statute of limitations: (Smith 144 AD 180, 128 NYS 966, afC 203 NY 499). Validity: of provision as contained in CCP § 973 sustained (Smith 144 AD 180, 128 NYS 966, aff 203 NY 499). COURTS TO WHICH APFI^ICABI.E— Surrogate's court: (Fox 166 AD 718, 152 NYS 431). OTHER RVI.es HEI.D AFPI.ICABI^E— Rule 195: application for judgment on fail- ure to answer (McElroy 176 AD 106, 162 NYS 467). Rtri^E CITED — But not applied: (Brody Adler & Koch Co 150 AD 527, 135 NYS 550). Rule 109. Plaintiff's motion on the answer. Within ten days after the service of an answer, the plaintiff may serve notice of motion to dismiss a counterclaim or strike out a defense consisting of new matter contained therein, where one or more of the following defects appear on the face thereof: 1. That the court has not jurisdiction of the subject of the counterclaim. 2. That the defendant has not legal capacity to recover on the counterclaim. 3. That there is another action pending between the same parties for the same cause. 4. That the counterclaim is not one which may be properly interposed in the action. 5. That the counterclaim does not state facts sufficient to constitute a cause of action. 6. That the defense consisting of new matter is insufficient in law. Corporations: recovery on promissory notes; insufficient cause of action (Otis 128 NY 45). Iiibel: defense of new matter insufficient in law (Hathorn 44 Hun 608). Pendency: of another action (Rundlett 76 Mis 456, 135 NYS 697). ■Warranty: breach of, another action pending (See Ansorge 3 NYS 785). Waste: land outside of state, court without jurisdiction (Cragin 88 NY 258). STTBJECT OP COUNTEBCIiAIK: WITHIN JURISDICTION — Waste: land outside state (Cragin 88 NY 258). I^EGAIi CAPACITV TO BECO'TER: DE- PENDANT WITHOUT-— Executors and administrators: action against executor (See •Weeks 20 Mis 48, 45 NYS 740, rev 25 AD 206, 49 NYS 344). Mortgaere foreclosure: mortgage not in hands of defendant when action commenced (♦Mayo 44 Hun 342). ANOTHER ACTION PENDING BETWEEN SAME PARTIES POR SAME CAUSE — Attachment: vacated of (Dolbeer 17 NYS 186). Contract: recovery for work and materials (Kuhn 9 Mis 54. 29 NYS 73). Sales: recovery for goods sold (Douglas Co 22 NYS 1045, 30 AbNS 293). Warranty: breach of (Ansorge 22 AbNC 305, 3 NYS 786). COUNTERCI^AIM PROPERI.7 INTER POSED — Agency: principal's debt to extinguish agent's individual liability (*Wood 15 NYS 555). Bills and notes: recovery on promissory note, EDITORIAI. NOTES— Source: New, except unitalicized words which are taken from CCP §§ 494, 495, revised from CP § 153, as amended by L 1877, c 416. CCP § 494 read: " The plaintiff may demur to a counterclaim or a defense consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof." CCP § 495 read: " The plaintiff may also demur to a counterclaim, upon which the defend- ant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counter- claim;" etc. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Demurrer abol- ished, objections to pleadings, how taken, CPA § 277; Certain objections, when waived, CPA § 278; Certain objections not waived, CPA § 279; Objections, how stated, CPA § 280; Motion as to part, pleading as to re- mainder, CPA § 281; Effect of serving answer or reply pending a motion, CPA § 282; Pleading after disposition of motion, CPA § 283. Star (•) means read Not into KEADIiINE in capitals. For illustration see Rule 1. SERVICE OP NOTICE OP MOTION TIMEIiV More than ten days: after answer served (•Kutner [Jan 27, 1922] 66 NYLJ 1488). Twenty days: after answer served ('Gray Marble & Slate Co [Nov 10, 1921] 66 NYLJ 495). DEFECTS APPEARING ON PACE OP ANSWER — Attachment: vacation of, pendency of an- other action (Dolbar 17 NYS 186). r. 109 OLEVENQER'S RULES OF CIVIL PRAOTIOE 102 agreement not arising out of same trans- action nor connected with note (Desser 98 Mis 319. 162 NYS 794). Conversion: arising out of contract In same transaction (Savage 50 AD 136. 63 NYS 941). Corporations: dissolution and accounting (•Pliess 150 AD 555, 135 NTS 44); recovery on promissory not© by trustees under liquidation agreement ('Jones 32 Mis 638, lizeoators and. administrators: action against executor (See Weeks 20 Mis 48, 45 NYS 740, rev 25 AD 206, 49 NYS 344); assign- ment, wrongful filing, payments as surety on oflicial bond (Hull 225 NY 342); decree confirming accounts and payments under assignment (Hull 225 NY 342); payments as indorser on promissory note (Hull 225 NY 342); to compel accounting or executor (Pliess 150 AD 555, 135 NYS 44). rund in court: ownership of, claim that it be awarded to defendant ('Drake 16 NYS 335). Indemnity: payments made in settlement of actions brought by other parties (Pulton County Gas Co 130 AD 343, 114 NTS 642). Injunction: to restrain excavations in bed of river (Grange 10 CivP 98). Joint defendants: one of them cannot set up counterclaim where no several judgment is possible against him (*Natl State Bk 2 Ab NC 216). Master and servant: breach of contract of employment as civil engineer (Pecke 23 AD 393 48 NYS 225). Mortgage foreclosure: personal judgment, breach of covenant of seizin (Merritt 12 NYS 135). Motion to dlBmiss denied: when complaint is one upon which plaintiff can never have judgment (*Davis [Jan 3, 1922] 66 NYLJ 1155). Partnership: winding up, demands for serv- ices and breach of contract by plaintiff (*Reeves 25 Mis 226, 55 NYS 70). Separation: counterclaim for annulment In action for ("Tavarozzi [Jan 4, 19221 66 NYLJ] 1172). ■■ Tort: contract not arising out of transaction alleged in complaint (*Bckert 40 AD 525, 58 NYS 85); for value of goods sold and de- livered (*Eckert 53 NYS 879). "Waiver: does not result by failure to demur thereto (Eckert 53 NYS 879); results by failure to demur (Hudson River "W P Co 90 AD 513, 85 NYS 577). Work and labor: not arising out of contract or transaction in complaint ( •Wintrlngham TACTS IN'SuiriCIEN'T TO CONSTITUTi: CATJSZi or ACTION — Assignment: for benefit of creditors, matters accruing before assignment (Otis 8 NYS 294); of contract for electric power (•Hud- son River W P Co 90 AD 513, 85 NYS 577). Attorney and client: lack of skill of attorney (Klssam 44 AD 588. 61 NYS 75). Bills and notes: counterclaim involving breach of contract to operate hotel (•Fuller 79 Mis 617, 140 NYS 574). Contracts: to float stranded vessels (•Klauok 131 AD 519, 115 NYS 1049). Corporations: recovery on promissory notes by trustees under liquidation agreement (Otis 128 NY 45). Damatre to defendant! counterclaim not showing (Stafford [Jan 25, 19221 66 NTLJ 1456). Divorce: abandonment (♦Brownrlgg 78 Mis 108, 140 NYS 778). Uxecntors and administrators: action against executor ('Weeks 20 Mis 48, 45 NYS 740, rev 25 AD 206, 49 NYS 344); decree con- firming accounts and payments under as- signment (•Hull 225 NT 342); payments as Indorser on promissory note (♦Hull 225 NT 342); payments as surety on oflicial bond (•Hull 225 NT 342): to compel accounting of executor (•Pliess 150 AD 655, 135 NTS 44). Pnnd in conrt: ownership of, claim that It be awarded to defendant (•Drake 16 NTS 335). Hnsband and wife: personal injury to wife, limitations of action (Jorgensen 7 Mis 1, 27 NTS 318). Injunction: to restrain excavations In bed of river (See •Grange 10 ClvP 98). Joint tort feasors: amounts paid in settle- ment of actions by other persons (Pulton Co G & B Co 200 NT 287. afE 130 AD 343, 114 NTS 642). UabUity insurance: recovery of premiums, insurance for injuries to plaintiff's employer (Aetna Life Ins Co 56 Mis 164. 107 NTS 140). Master and servant: breach of contract of employment as civil engineer (•Pecke 23 AD 393, 48 NTS 225). Mechanic's lien: failure to complete work (•Pehlinger 118 NTS 167). Motion to dismiss denied: when complaint Is one upon which plaintiff can never have judgment (•Davis [Jan 3, 1922] 66 NYLJ 1155). Municipal corporations: assessment foreclos- ure, no authority of village to sue ('Village of Little Palls 80 Hun 20, 29 NTS 855). " ITot sufficient in law on the face thereof ": is defective (Hudson River WP Co 90 AD 513, 85 NTS 577). Sales: seeking rescission of contract, found allegations constituting mere conclusions and showing receipt and payment of part of goods and no tender back (Irving Natl Bk [Jan 4, 1922] 66 NTLJ 1172). Work and labor: negligence in performance (Wintrlngham 37 NTS 188; *Sand 113 NTS 972). DEFENSE OF NEW MATTER INSUFFI- CIENT IN IiAW — Assignment for benefit of creditors: fraud by corporation in obtaining, action on note by trustees (Otis 8 NTS 294); matters ac- cruing before assignment (Otis 8 NTS 294). Bills a»d notes: breach of warranty of gen- uineness, acts after commencement of ac- tion (Gabay 66 AD 507, 73 NTS 381). Contract: fraudulent representation (See David [Jan 5. 1922] 66 NTLJ 1188). Corporations: recovery of interest on regis- tered bonds (•Holmes 65 AD 49. 72 NTS 476). Creditor's snit: assignment of judgment (•Gitler 55 Mis 553, 106 NTS 886). Indemnity: payments made in settlement of actions brought by other parties (Pulton Co Gas Co 130 AD 343, 114 NTS 642). " Insofflcient in law": means Insufficient to constitute a defense to cause of action (Otis 8 NTS 294). Dibel: justification and mitigation (Hathorn 44 Hun 608). Municipal corporations: assessment foreclos- ure, no authority of village to sue (•Village of Little Palls 80 Hun 20, 29 NTS 865); contractor's action for work done, dismissal of former action (Savage 50 AD 136. 63 NYS 941). Partnership: accounting, demurrer that de- fense does not state facts sufliclent to con- stitute a defense is defective (See McCann 36 Mis 7, 72 NTS 45). Railroad mortgage: action against trustee of (•Pleischer 58 AD 473, 69 NTS 437). Religious societies: recovery of salary of chaplain, refusal by church authorities to grant salary (See Baxter 154 NY 436). Sales: recovery of price, breach of warranty (•Isbell-Pater Co 113 AD 79. 98 NYS 1018); recovery for goods sold (Douglas Co 22 NYS 1045, 30 AbNC 293); retention by plain- tiff of sums paid as liquidated damages but really constituting a penalty (Irving Natl Bk [Jan 4. 1922] 66 NTLJ 1172). Blrl^E AFFIiICABI^E — Codefendant: demurrer by, against counter- claim (•Joseph & Bros Co 166 NTS 506). 103 PLEADINGS rr. 110-112 Bule 110. Plaintiff's motion; when defect does not appear on face of answer. Within ten days after the service of the answer, the plaintiff may serve notice of motion for judgment dismissing a counterclaim on the pleadings and an affidavit tending to show : 1. That the court has not jurisdiction of the subject of the counterclaim. 2. That there is another action pending between the same parties for the same cause. 3. That there is an existing final judgment or decree of a court of competent juris- diction rendered on the merits determining the same cause of action between the parties. 4. That the claim or demand set forth in the counterclaim has been released. 5. That the contract on which the cause of action alleged in the counterclaim is unenforceable under the provisions of the statute of frauds. Rule one hundred and eight shall apply to the determination of the motion. EDITORIAI, ITOTES — Source: words in italics are new; other words are taken from CCP § 495, subdivisions 1 and 3, as revised from CP § 153, as amended by L 1877. c 416. Text In Italics Is new matter, inserted June 17. 1921. Civil Practice Act references: see this subline under Rule 107. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. CIiAIM OB DEMAND SET FOBTS IN COTTN- TEBCIVAIM BEI^EASED — No defense of release set up: by way of re- ply (•Garbelnick Shoe Co [Dec 9, 1921] 66 NYLJ 856). Remedy Invoked: must be carefully applied and used only in cases where it clearly ap- pears that no substantial question is in- volved (Garbelnick Shoe Co [Dec 9, 19211 66 NYLJ 856). Bule 111. Motion on reply. Within ten days after service of a reply, the defendant may move to strike out the reply, or a separate defense therein, on the ground that it is insufficient in law upon the face thereof. EDITOBIAIi NOTES — Source: new; adapted from CCP § 493, as revised from CP § 155. CCP § 493 read: " The defendant may also demur to the re- ply, or to a separate traverse to, or avoid- ance of, a defense or counterclaim, con- tained in the reply, on the ground that it is insufficient in law, upon the face thereof." Text in Italics is new matter, Inserted June 17, 1921. Civil Practice Act references: see this Subline under Rule 107. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. BEFI.Y INSUFFICIENT IN IiAW — Account stated: where reply contains coun- terclaims remedy is by motion not by de- murrer, prior rule (Hatfield 13 CivP 265). Bankruptcy: discharge invalid as to plain- tiffs debt (Poillon 77 NT 207). Bills and notes: recovery on promissory note (•Williams 14 Mis 79 35 NTS 263), payment under mistake (•(iearon 47 NYS 264). Contract: demurrer to a paragraph of the reply not authorized, prior rule (*Sullivan 120 NYS 55); failure to pay sum agreed (Pope Mfg Co 110 AD 341, 96 NYS 73). Conversion: action arising on contract; usury (See Thomas 38 Supr 466); fraud in obtaining stock after alleging lawful pos- session in complaint (Young 137 AD 313, 122 NYS 29). Ejectment: deed procured by fraud while testator incompetent, without alleging ad- judication of incompetency (Lewis 123 AD 497, 108 NYS 274, rev 106 NTS 646). Executors and administrators: claim against, statute of limitations (Balz 19 Mis 215, 44 NYS 419). Xiandlord and tenant: rent (Williams 14 Mis 79. 35 NY^S 263). Master and servant: breach of employment contract, receipt in full, plea of duress (Wertheim 135 AD 760, 119 NYS 909). Mortgag'e foreclosure: (See *Armstrong 90 NYS 711); denial of incumbrances and fraudulent representations ('Ludington 38 Supr 81); performance by plaintift (♦Charl- ton 17 NYS 539). Heceiver: recovery on promissory note, ap- pointment of ('White 13 NY 83, rev 11 How 36). Tort: (Winchester 15 NYS 51). DEFENSE INSXTFFXCIENT IN I^AW — Contracts: to float stranded vessels, release of claims (Klauok 131 AD 519, 115 NYS 1049); to rebuild and repair certain prem- ises (Streeter 171 AD 572, 157 NYS 698). Divorce: adultery of husband (*Brownrlgg 78 Mis 108, 140 NYS 778). Sales: allowance by way of liquidated dam- ages (Klauder 61 Mis 255, 113 NYS 716). Rule 112. Motion for judgment on the pleadings after issue joined. If either party he entitled to judgment on the pleadings, the court may, on motion, give judgment accordingly, and without regard to which party makes the motion. EDITOBIA]^ NOTES-— Source: CCP § 547 broadened by adding the last clause in italics and by omitting the words " at any time after Issue joined " after " on motion." CCP § 547 added by L 1908, c 166. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references; CPA § 476. Star (•) means read Not into KEADI^INE In capitals. For illustration see Rule 1. BUIE CONSTRUED — Pleading's mean: all the pleadings of the various parties (Guedes [Jan 28, 1922] 66 NYLJ 1503). TO WHOM NOTICE NECESSARY — Defendants: after default in pleading (Guedes [Jan 28, 1922] 66 NYLJ 1503). MOTION FOB JUDGMENT GBANTED— For defendant: plaintiff's motion denied (Kentucky Holding Co [Jan 7 1922] 66 NTLJ 1222). Marine Insurance: where to grant it would practically adjudicate against rights of co- defendant insurance company, which had not appeared on motion or been notified of it and whose pleading not before court (*Guedes [Jan 28, 1922] 66 NTLJ 1503). r. 113 CLEVENGER'S RULES OF CIVIL PRACTICE 104 Rule 113. Summary judgment. When an answer is served in am action to recover a debt or liquidated demand arising, 1. on a contract, express or implied, sealed or not sealed; or 2. on a judgment for a stated sum; the answer may he struck -out and judgment entered thereon on motion, and the affidavit of the plaintiff or of any other person having knowledge of the facts, verifying the cause of action and stating the amount claimed, and his belief that there is no defense to the action; unless the defendant by affidavit, or other proof, shall show such facts as may be deemed, by the judge hearing the motion, sufficient to entitle him to defend. EDITOBIAI. NOTES— Sonrce: new; based on English Practice Act, order 3, rule 6, and order 14, rule 1. English Practice Act, order 3, rnle 6: "6. In all actions where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising (A.) upon a con- tract, express or emplied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt); or (B.) on a bond or contract under seal for payment of a liquidated amount of money; or (C.) on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (D.) on a guaranty, whether under seal or not, where the claim, against the principal is in respect of a debt or liquidated demand only; or (E.) on a trust; or (P.) in actions for the recovery of land, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;" etc. Sng'llsh Practice Act, order 14, rule 1 : "1 (a). Where the defendant appears to a writ of summons specially indorsed under Order III. Rule 6, the plaintiff may, on affidavit made by himself, or by any other person who can swear positively to the facts, veri- fying the clause of action, and the amount claimed (if any), and stating that in his belief there is no defence to the action, apply to a Judge for liberty to enter final judgment for the amount so indorsed, to- gether with interest, if any, or for the re- covery of the land (with or without rent or mesne profits), as the case may be, and costs. The Judge may thereupon, unless the defendant by affidavit, by his own viva voce evidence, or otherwise shall satisfy him that he has a good defence to the ac- tion on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, make an order empowering the plaintiff to enter judgment accordingly." Text in Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Actions on Contract, express or implied, illustrated by the Annotations of the following sections: Actions in which arrest may be had. CPA § 826, subdivision 10; Actions in which at- tachment of property may be had, CPA § 902; Actions in which default judgment entered by clerk without application to court, CPA § 485; Actions in which default judgment entered on application to court where service without the state or not per- sonal, CPA § 493, subdivision 2; Actions to be commenced within six years, CPA § 48, subdivision 1; Actions which may be joined, CPA § 258, subdivision 1; Causes of action which may be attached, CPA § 916. Star (*) means read Hot Into HEADUNIi in capitals. For illustration see Rule 1. OBJECT OP RVIiE — Debt coUectiner: facilitate (Ray [1879] 27 WR 746). Selayinir judgrment unnecessarily: prevent (Rogan [Jan 19, 1922] 66 NYLJ 1371). EzpeOite jad^ment: in actions wherein a trial is patently an unnecessary formality (Wallace [Dec 11, 1921] 66 NTLJ 903). Necessity for trial: prevent (Ex parte Spel- man [1895] 2 QB 176). Speedy judginent: enable creditor to obtain by preventing the interposition of unmeri- torious defenses for purposes of delay (Gen- eral Investment Co [Jan 10, 1922] 66 NYL.J 1249). Summary judgment; obtain without trial (Roberts [1895] 1 QB 597, CA; Nassau Press 70 LT 376). HISTOKY OP RVImS — Pounded on: English Practice Act, order 3, rule 6, and order 14, rule la (McGarity [Jan 11, 1922] 66 NYLJ 1267; Applebaum [Dec 3, 1921] 66 NTDJ 780; Zwigg [Dec 1, 1921] 66 NTLJ 742). BV£E CONSTRTTES — Misuse of privilegre of Rule: invades right of trial by jury (Munoz & Co [Jan 27, 1922] 66 NTLJ 1479). System of formulating' or trying issues: un- changed by Rule 113 (Rogan [Jan 19, 1922] 66 NYLJ 1371). ACTIONS WITHIN BUZiE — Actions pending under CCP: prior to Octo- ber 1, 1921 (Stern [Oct 27, 1921] 66 NTLJ 329, [Oct 25, 1921] 66 NTLJ 305; Peninsular Transportation Co [Nov 16, 1921] 66 NTLJ 558; Buehler [Oct 21, 1921] 66 NTLJ 265; Textor [Oct 27, 1921] 66 NTLJ 329). ACTIONS ON CONTRACT, EXPRESS OB IMFi;iEII — Bills and notes: action by assignee of note executed by defendant (Rogan [Jan 19, 1922] 66 NYLJ 1371); affirmative defense of failure of consideration of note (Sidney Davison Coal Co [Nov 10, 1921] 66 NTLJ 496). Breach of contract; damages for (*Knight [1882] 10 QBD 11). Building contract: money due on architect's certificate of work done (Meade 4 LRIr 207). Praud: action for " stated sum " admitted to be due by defendant who, however, denied the fraud (*Himadi [Jan 4, 1922] 66 NYLJ 1171). Goods sold and delivered; (Hattie Carnegie [Jan 5, 1922] 66 NTLJ 1188). Instalments accrued; under contract to build ship (Workman, Clark & Co [1908] 1 KB 968). mechanic's lieu: rule established G-arity [Jan 11, Hill 47 LT 224; foreclosure of, following by English courts ('Mc- 1922] 66 NYLJ 1267; see Imbert Terry 34 CD 506). Money lent: (Bickers 22 QBD 7). Money x>ald: by surety for principal (Bor- land [1878] 4 LRIr 273). Quantum meruit: (Runnacles 1 QBD 416). Stock transactions: court should go very slow in granting motions in cases involv- ing (Ward 6 TR 198). TTnliqnldated demand: nature not shown (•Hurwitz [Jan 12, 1922] 66 NYLJ 1281). ACTIONS ON JUDGMENT POR STATED SUM — Alimony: permanent, order for payment of (•Robins [1907] 2 KB 13); temporary, order for payment of arrears of ('Bailey [1884] 13 QBD 855, CA). Costs: of motion for attachment, order for payment (Seldon [1911] 1 KB 701, AC). 105 PLEADINGS rr. 113,114 "Enforcement Order": of German court to make award effective (*Merrifieia, Ziegler & Co [1911] 105 LT 97). Tlnal judgment: condition precedent ('Nor- ton [1895] 73 LT 10, CA; *Bailey [1884] 13 QBD 855, CA). Foreign judgment: (Grant 13 QBD 302; Nouvion [1889] 15 AppCas 1); jurisdiction of foreign court necessary (Pemberton [1899] 1 Ch 781, AC). " Bemate " judgment: of Spanish courts (•Henderson 37 CD 244, 15 App Cas 1). MOVING- APPIDAVIT SUFFICIENT — Belief of no defense: required (Kohn [Jan 19, 1922] 66 NYLJ 1371). By attorney: and not by person having knowledge of facts ('Sidney Davison Coal Co [Nov 10, 1921] 66 NYLJ 496). Matters required: not stated ('Sidney Da- vidson Coal Co [Nov 10, 1921] 66 NYLJ 496). FACTS SUFFICIENT TO ENTITLE DE- FENDANT TO DEFEND — Answering affidavit: failure to submit, re- sults in granting the motion (Iselin [Jan 11, 1922] 66 NYLJ 12B5); weak and evasive (•Selson Engineering Co [Jan 25, 1922] 66 NYLJ 1456). Bona flde defense: afildavit, far from con- vincing, avers that defendant has good defense entitling him to his day in court (Frances & Co [Jan 11, 1922] 66 NYLJ 1265); defense shown ("Wallace [Dec 13, 1921] 66 NYLJ 103), not shown (*Janltschek [Dec 13, 1921] 66 NYLJ 903; Parber [Dec 16, 1921] 66 NYLJ 950); where defendant makes what appears to be a bona flde de- fense or sets forth a cause of complaint against plaintiff in the nature of a counter- claim (Munoz & Co [Jan 27, 1922] 66 NYLJ 1479). Defense not pleaded: ('Peninsular Trans- portation Co [Nov 16, 1921] 66 NYLJ 558). Denial on information and "belief: action on policy insuring vessel against damage from mines, affidavit alleging arrest of owner and officers for fraud in sinking vessel, but fraud not alleged in answer ('Penin- sular Transportation Co [Nov 16, 1921] 66 NYLJ 558). Facts impossllile to determine: from affi- davits (Cohen [Jan 25, 1922] 66 NYLJ 1456). Incompetent proof: under pleadings, set out in answering affidavit ('Peninsular Transp Co [Nov 16, 1921] 66 NYLJ 558). Issue of fact: answer technically sufficient to raise issue of fact, but plaintiff by proper affidavit shows prima facie no de- fense ('Sidney Davidson Coal Co [Nov 10, 1921] 66 NYLJ 496); denial coupled with lack of knowledge of facts required in support of motion (Orvigs Dampskibssel- skab Aktieselkab [Jan 26, 1922] 66 NYLJ 1471); denial of account stated (Tv/igg [Dec 1, 1921] 66 NYLJ 742); denial of due performance of work, plus affidavits sufficient to show actual dispute (Wolff [Jan 19, 1922] 66 NYLJ 1371); denial of presentation and demand for payment of bill of exchange at place payable (Step- anoft [Nov 15, 1921] 66 NTLJ 543); denial of receipt of money for defendant's use and benefit, plus affidavit of attorney that defendant was abroad and alleging false representations (Kohn [Jan 19, 1922] 66 NYLJ 1371); denial of sale, and alleging option to return goods If unsatisfactory, and sufficient affidavits (Young [Jan 21, 1922] 66 NYLJ 1409); denial without proof, that corporation repurchased its stock when it had no surplus and its cap- ital was impaired (Poland Export Corp [Jan 21, 1922] 66 NYLJ 1409J; recognizing answer as raising issue by reply and no- tice of trial (Robertson [Dec 28, 1921] 66 NYLJ 1086). Issue of law; raised (Crawford 30 LRIr 238; Electric c& Gen Contract Corp 10 TR 103); defenses insufficient in law ('General Investment Co [Jan 10, 1922] 66 NYLJ 1248). Material allegations admitted: tho denied by affidavit in support of motion on counterclaim ('Garbelnick Shoe Co [Dec 9, 1921] 66 NYLJ 856). Moving affidavit met: answering affidavits put in issue material parts of moving affi- davit and support defense (Donnellan [Jan 26, 1922] 66 NYLJ 1471); with exhaustive answer directly contradicting assertions of plaintiffs (Munoz & Co [Jan 27, 1922] 66 NYLJ 1479). No answering affidavit: action for rent due under written lease and defendant denied generally ('Stern [Oct 27, 1921, Oct. 25, 1921] 66 NYLJ 305); moving affidavit de- tailing various steps leading up to cause of action and facts which uncontradicted show defendant's answer to be without merit ('Commonwealth Finance Corp [Feb 4, 1922] 66 NYLJ 1598); plaintiff's affidavit of claim, copy of assignment and original at hearing, and defendant denied knowledge or information sufficient to form a belief (•Cooper [Jan 23, 1922] 66 NYLJ 1430); to offset affidavit of plaintiff's attorney that defendant admitted indebtedness and promised payment as soon as financial ar- rangements made ('Hattie Carnegie [Jan 5, 1922] 66 NYLJ 1188). No proof overcoming: plaintiff's evidence of its ownership of notes sued on ('General Investment Co [Jan 10, 1922] 66 NYLJ 1249). Sliam and frivolous answers; intended to be covered (Robertson [Deo 28, 1921] 66 NYLJ 1086). Stating and swearing to defense; required, not in all of its details of incident and fact, but the foundation of the defense (Cooper [Jan 23, 1922] 66 NYLJ 1430). Test imposed: whether the answer serves to formulate actual issues between the parties or only to impede justice (Rogan [Jan 19, 1922] 66 NYLJ 1371). Whether defendant entitled to defend; de- pends on actual facts presented on motion and not on issue being raised by plead- ings (Rogan [Jan 19, 1922] 66 NYLJ 13711 MOTION TIMEIY— ' Before answer: ('Burns [Jan 18, 19221 66 NTLJ 1359). ^ Rule 114. Partial judgment. If it appear that such defense applies only to part of plaintiff's claim, or that any part he admitted, the plaintiff may have final judgment forthwith for so much of his claim as such defense does not apply to or as is admitted on such terms as may be just, and the action may lie severed. EDITORIAL NOTES — Source: new; based on English Practice Act. order 14, rule 4, which reads: "If it appear that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is ad- mitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into court by the sheriff, the taxation of costs, or otherwise, as the judge may think fit. And the defendant may be allowed to defend as to the residue of the plaintiff's claim." See also the New Jersey Practice Act. ^i®?*i*^i"^'"''^ *® ^^'^ matter, inserted June 17} 1921i rr. 114-116 CLEVENGER'S RULES OF CIVIL PRACTICE 106 Civil Practice Act references: Judgment on pleadings or admission of part of cause, Star (*) means read Not into KEADIiIITE in capitals. For illustration see Rule I. PARTIAI^ JUDGMENT GRANTED — Bond for money: claim thereon for full amount, where judgment could be given for part only (Gerrard [1892] 2 QB 11). Proper order: where party of claim ad- mitted, is judgment for plaintiff for amount admitted, and unconditional leave to defend as to residue (Dennis 4 Ex D 80; Purkiss 3 Times R 63). Whole claim disputed: payment of part for which judgment given by defendant is properly made a condition of defense as to residue (Hodgson [1890] 24 QBD 525; Hoby [1890] 62 LT 404). Bule 115. Costs on motion for bill of particulars. If a bill of particulars be directed, as provided in section two hundred and forty-seven of the civil practice act, the court or judge., in the order, may impose costs of the motion, where a request for delivery of the bill has previously been made but not complied with. EDITOBIA]^ NOTES — Source: new. Text in italics is new matter, inserted June 17, 1921. Olvil Practice Act references: Bill of par- ticulars by order in any case, CPA § 247. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. MOTION COSTS PBOPER^-S- IMPOSED— Demand ignored: notwithstanding defendant entitled to nearly all of items demanded (Polakofe [Dec 13, 1921] 66 NTLJ 903). Relief from, terms Imposed: motion denied (Polakoff [Dec 23, 1921] 66 NYLJ 1045). Rule 116. Verification of bill of particulars. If a pleading be verified, a bill of particulars, directed to be allowed, also must be verified in like manner as a copy of an account is required to be verified by the provisions of section two hundred and forty- six of the civil practice act. EDITORIAI^ NOTES — Source: new. See CCP § 523. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Account, how pleaded, CPA § 246; Bill of particulars by order in any case, CPA § 247. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule I. VERIFICATION OF FABTICUIiABS NEC- ESSARY— Accounts: order directing bill not requiring verification (*Shankland 49 Hun 605; 1 NYS 458). Negrligence: pleading unverified ('DeNell 167 NYS 619). SMppingr: pleading not verified ('Brauer 26 AD 623, 49 NYS 937). Slander: where pleading verified (McCarron 3 NYS 659). TTnless case exceptional: whenever pleadings are verified (Manning 31 AD 51, 52 NYS 530). Work and Ia1>or: pleading verified (Whithers 10 StR 704, 13 CivP 1). 107 DEPOSITIONS TO BE USED WITHIN THE STATE I. 120 TITLE 15 DEPOSITIONS TO BE USED WITHIN THE STATE Rule 120. Deposition to be used on motion. 121. Notice of taking testimony by deposition. 122. Application for an order for a deposition. 123. Proof on application for order to perpetuate testimony for future action. 124. Motion to vacate notice. 125. Certain papers relating to depositions to be filed. 126. Service and settlement of interrogatories. 127. Time and place of talcing testimony; adjournments. 128. Papers to authorize officer or person to proceed with examination. 129. Jlanner of taking testimony by deposition. 130. Special provisions as to depositions taken without the state. 131. Provisions relating to filing of depositions and papers from without the state. 132. Where depositions are to be filed and kept. 133. When deposition taken without the state may be suppressed. EDITOBIAI^ NOTES — Civil practice Act references: Testimony by deposition during pendency of action and before trial, CPA § 288; Testimony of cor- poration or association, how talten, CPA § 289; Notice of taking testimony by de- position, CPA § 290; Motion to vacate or modify the notice, CPA § 291; Proceeding by order in the first instance in lieu of notice, CPA § 292; Order for taking testi- mony during the trial or after judgment, CPA § 293; General provisions relating to orders, CPA § 294; Testimony by deposi- tion before action Is commenced, CPA § 295; Production of books and papers, CPA I 296; Testimony of person in prison, CPA § 297; Testimony to be taken by stipula- tion, CPA § 298; Compelling attendance of witnesses, CPA § 299; Where witness may be compelled to attend, CPA § 300; Before whom testimony may be taken, CPA § 301; Manner of taking testimony, CPA § 302; When testimony by deposition to be read in evidence, CPA | 303; Conditions under which (deposition may be read in evidence, CPA § 304; Effect of deposition, CPA § 305; Physical examination, CPA § 306; Testi- mony by deposition to be used on motion, CPA § 307; Depositions in special proceed- ings, CPA § 308; Letters rogatory, CPA § 309. Rule 120. Deposition to be used on motion. Where a party intends to make or oppose a motion in a court of record and it is necessary for him to have the affidavit or deposition of a person not a party to use on the motion, the court or a judge author- ized to make an order in the case may make an order appointing a referee to take the deposition of smc/i person. The order must be founded on proof by affidavit that the applicant intends to make the motion, or that notice of a motion has been given which the applicant intends to oppose. The affidavit must specify the nature of the action and must show that the deposition is necessary thereon and that such person has refused to make an affidavit of the facts which the applicant verily believes are within his knowledge. One day's notice of such application must be given to the attorney for each party who has appeared in the action. The person to be examined may be sub- poenaed and compelled to attend as on a trial and may be cross-examined by the party on whose attorney the notice has been served. The deposition must be taken by question and answer and be subscribed by the witness and must be delivered to the attorney for the party who procured the order unless such order provides a different disposition thereof. EDITOBIAI^ NOTES— Sonxce: CCP § 885, as revised from CP § 401, subdivision 7, as amended by L 1877, c 416, Li 1901, c 526, L 1909, c 65. CCP § 885 read: "* * • the affidavit must specify the nature of the action and must show that the affidavit or deposition is necessary thereon and that such person has refused to make an affidavit of the facts which the applicant verily believes are within his knowledge. If the defendant has ap- peared in the action and the application is made on the part of the plaintiff, at least one day's notice of such application must be given to the attorney of the de- fendant, and if the application is made on the part of the defendant, similar notice must be given to the attorney of the plain- tiff" Etc. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Testimony by deposition to be used on motion, CPA § 307. Star (•) means read Not into KEASI^INI: in capitals. For illustration see Rule 1. OBJECT WSICH BVI^E DESIGNED TO ACCOMFIiISH — General examination: of witness (»Davis 53 Mis 1. 102 NYS 868; *Calvet-Rogniat 46 Mis 20, 93 NYS 241). Substantial Jnstice: promote (Johnson 58 Mis 353, 110 NYS 1098). MOTIONS POB USE ON WEICS DEPOSI- TIONS lOAY BE TAKEN — After judgment: (O'Connor 80 AD 305, 80 NYS 741; Cohen 105 Mis 724, 174 NYS 427) All: (O'Connor 80 AD 305, 80 NTS 741- Cohen 105 Mis 724, 174 NYS 427). Amend papers: in libel action by substitut- ing real name of another for " John Doe " (McCue 1 Hun 469). Attachment: (Wallace 2 AD 501. 37 NYS 1078; Bennett 27 Hun 352). r. 120 OLEVENGER'8 RULES OF CIVIL PRACTICE 108 Before judgment: (O'Connor 80 AD 305, 80 NYS 741; Cohen 105 Mis 724, 174 NTS 427). Court of record: in (Hodgrman 60 Hun 156, 14 NYS 574; Attorney-General 66 How 51, 4 CivP 214). Discovery of documents; (Avery 117 AD 244, 102 NYS 12), after decision (•Francis 88 Hun 325, 34 NYS 752). Dismiss complaint: (Ramsey 39 How 62, 8 AbNS 174, 57 Barb 398). Make more definite and certain: answer (•Moses 7 Rob 131, 34 How 212); complaint (Ramsey 39 How 62, 8 AbNS 174, 57 Barb 398). New trial: (O'Connor 80 AD 305, 80 NYS 741; Davis 53 Mis 1, 102 NYS 868; Denny 8 Mis 544. 28 NYS 744; Gtarvey 3 Mis 352, 22 NYS 929^ Bemove trustee: (Beggs 62 AD 39, 70 NYS 864). Bemoval of motion previously denied: no newly discovered evidence ('Hayward 152 AD 201, 136 NYS 629). Set aside order: directing receiver to com- promise and discontinue actions brought by him (Attorney-General 66 How 51, 4 CivP 214). Stay proceeding's: (Ramsey 39 How 62, 8 AbNS 174, 57 Barb 398). Strike out portions of complaint: (Ramsey 39 How 62, 8 AbNS 174, 57 Barb 398). 'Vacate: attachment (Hodgman 60 Hun 156, 14 NYS 574; Nat Broadway Bk 14 NYS 529); supplemental summons and service thereof (Johnson 58 Mis 353, 110 NYS 1098). ■WHO JHAI APPLY POB ORDER — Creditor: who has not intervened in action by attorney-general to dissolve corporation (•Attorney-General 66 How 51, 4 CivP 214). ' ^ ■ Intervener; (See Attorney-General 66 How 51, 4 CivP 214). Party; intending to make motion (Attorney- General 66 How 51, 4 CivP 214), oppose motion (Attorney-General 66 How 51, 4 Civ P 214); only (Attorney-General 66 How 51, 4 CivP 214). Policy holder: who has not intervened in action by attorney-general to dissolve life insurance company (•Attorney-General 6B How 51, 4 CivP 214). Stockholder; who has not intervened in ac- tion by attorney-general to dissolve cor- poration (*Attorney-General 66 How 51, 4 CivP 214). APPI^ICATIOir MUST BE IN GOOD PAITH — Essential; (Stanton 186 AD 481, 174 NYS 551; Moses 7 Rob 131, 34 How 212). MOTIOIT -WITHOUT I^EAVE OP COURT PROPER — Pormer denial; new motion on different papers and in action differently entitled (PxTuell 92 AD 303, 86 NYS 1109); pro- vided therein that without prejudice to another application (PxTuell 92 AD 303, 86 NYS 1109). MOTION TIMED-r — Attorney: just learned facts not previously communicated to him because importance not appreciated (Davis 53 Mis 1, 102 NYS 868). SHOWING INTENTION TO MAKE OR OP- POSE MOTION NECESSARir — Absence fatal: (Moses 7 Rob 131, 34 How 212). SHOWING INTENTION TO MAKE MO- TION BUPPICIENT — Affidavit of attorney: applying for order (Moses 7 Rob 131, 34 How 212). Contrary appearing on face; of moving affl- davit ('Moses 7 Rob 131, 34 How 212). Strike and answer as sham; after 5 months delay ('Moses 7 Rob 131, 34 How 212). SHOWING INTENTION TO OPPOSE MO- TION SUPPICIENT — Contrary appearing on face: of moving affi- davit (•Moses 7 Rob 131, 34 How 212). SHOWING NATURE OP MOTION RE- QUIRED — Essential; (Williams 3 CivP 448). SHOWING NECESSITY REQUIRED — Absence fatal: (Johnson 58 Mis 353, 110 NYS 1098; Cockey 18 AbNS 183, 45 How 70; Moses 7 Rob 131, 34 How 212; Williams 3 CivP 448). SHOWING NECESSITY SUPPICIENT— Affidavit of attorney: applying for order (Moses 7 Rob 131, 34 How 212). Concealment of facts: by witness when tes- tifying at previous trial (O'Connor 80 AD 305, 80 NYS 741). Conspiracy to testify falsely: tend to show (Davis 53 Mis 1, 102 NYS 868). Contrary appearing on face: of moving affi- davit (•Moses 7 Rob 131, 34 How 212). Desired testimony: will not be given by witnesses ('Davis 53 Mis 1, 102 NYS 868; •Calvet-Rogniat 46 Mis 20, 93 NYS 241). Direct taking of testimony: possible in pro- ceeding in aid of which deposition sought (PxTuell 92 AD 303, 86 NYS 1109). Discredit opposing party; and his witness (Davis 53 Mis 1, 102 NYS 868). Pacts: and circumstances must be stated (Cockey 18 AbNS 183, 45 How 70); to which witness expected to testify not stated (•Williams 3 CivP 448). Material: testimony must be (Stanton 1S6 AD 481, 174 NYS 551; Dauchy 16 AbNS 100; Williams 3 CivP 448). proposed affidavit: presentation good prac- tice but not indispensable (Dauchy 16 AbNS 100). Relevancy: must appear (Calvet-Rogniat 46 Mis 20, 93 NYS 241). Subject of testimony: desired must be shown (Dauchy 16 AbNS 100). SHO-WING REPUSAI. TO MAKE AFFI- DAVIT REQUIRED — Essential; (Johnson 58 Mis 353, 110 NYS 1098; Williams 3 CivP 448; Moses 7 Rob 131, 34 How 212). SHOWING REFUSAD TO MAKE AFFI- DAVIT SUFFICIENT — Affidavit of attorney: applying for order (Moses 7 Rob 131, 34 How 212). Consult counsel; refuse to make affidavit until (Rogers 2 T&C 676, ap dis 56 NT 669). Demand not sufficiently specific: as to affi- davit required (•PxPaton 5 StR J16, 20 AbNC 170). Opposing affidavit; also refuse to make (Davis 53 Mis 1, 102 NYS 868; Broches [Nov 29, 1921] 66 NYLJ 711). Proposed affidavit; none presented, unless witness refused to make any affidavit (•Erie Ry Co 14 AbNS 279); submission to witness proper practice but waived by general refusal to testify (Fisk 3 AbNS 430). Refused to sign; affidavit prepared, after reading (Johnson 58 Mis 353, 110 NYS 1098), after reading first page, tho statins would not refuse until consulting counsel (Johnson 58 Mis 353, 110 NYS 1098); any paper in matter (Johnson 58 Mis 353. lib NYS 1098). APPOINTMENT OP REFEREE PROPER — Additional power; to send witness before referee conferred by amendment of 1862 to Code Proc § 401, power of court to con- duct examination remains (Clark 26 How 254). Contempt proceeding: punish judgment debtor for violation of order in supple- mentary proceedings prohibiting transfers (•PxTuell 92 AD 303, 86 NYS 1109). Denials: only would be elicited (•Davis 63 Mis 1, 102 NYS 868; •Calvet-Rogniat 46 Mis 20, 93 NYS 241). Desired testimony: will not be given by witnesses (•Davis 53 Mis 1, 102 NYS 868; •Calvet-Rogniat 46 Mis 20, 93 NYS 241). Disclosure: to which moving party not en- titled sought ('PxPaton 5 StR 316, 20 AbNC 170). 109 DEP0SITI0X8 TO BE USED WITHIN THE STATE rr. 120,121 DtscreUonary; (PxTuell 92 AD 303, 86 NYS 1109; Cohen 105 Mis 724, 174 NTS 427; Johnson 58 Mis 353, 110 NYS 1098; Davis 53 Mis 1, 102 NTS 868; Calvet-Rogniat 46 Mis 20, 93 NYS 241; Attorney-General 66 How 51, 4 CivP 214). Improper purpose: in seeking examination apparent from moving papers ('Moses 7 Rob 131, 34 How 212). Incompetency of prospective witness: shown by moving affidavit ('Moses 7 Rob 131, 34 How 212). £ack of power: to compel making of deposi- tion appear on face of moving papers (*Moses 7 Rob 131, 34 How 212). No m.otion ponding: ('Kelly 4 LawB 3). Prima facie case made out: application in good faith to obtain material testimony (Stanton 186 AD 481, 174 NYS 551). Froceediin? note: in action or incident thereto ('PxPaton 5 StR 316, 20 AbNC 170); to be encouraged (Moses 7 Rob 131, 34 How 212). Prove publication of Eumm.ons: publisher refuse to make affidavit (Eberle 50 AD 450, 64 NYS 246). Substantial rlglit of person: directed to ap- pear not affected so as to authorize appeal to Court of Appeals (Rogers 66 NY 669). afpohttuent op beperee timei;v — Before: action commenced ('Pinkenberg 195 AD 20, 185 NYS 108); complaint verified ('Pinkenberg 195 AD 20, 185 NYS 108); summons served ('Finkenberg 195 AD 20, 185 NYS 108). ORDER FROPERIiV KASE B7 — Court or judge: competent to make order in cause (Attorney-General 66 How 51, 4 CivP 214). PERSON'S WHO MAV BE EXAIVUNED — Other than party: (Wallace 2 AD 501, 37 NYS 1078; Francis 88 Hun 325, 34 NYS 752; PxPaton 5 StR 316, 20 AbNC 170). Party to action: ('Berdell 86 NY 519; •James 39 Hun 399; 'Attorney-General 66 How 51, 4 CivP 214; 'Stubbs 7 StR 282; 'PxPaton 5 StR 316, 20 AbNC 170; Cockey 14 AbNS 183, 45 How 70 prior rule), pros- pective ('Berdell 86 NY 519). Positive knowledge: of facts relied on for attachment, person having (Bennett 27 Hun 352). Possessed of Information: which will aid moving party (Wallace 2 AD 501, 37 NYS 1078). Prospective witness: on new trial moved for (Denny 8 Mis 544, 28 NYS 744; Garvey 3 Mis 352, 22 NYS 929). Publisher of paper: as to publication of summons therein (Eberle 50 AD 450, 64 NYS 246). Receiver: of corporation defendant (Wallace 2 AD 501, 37 NTS 1078). Relator: in mandamus ('PxHarriman 20 AbNC 172). Witness: at previous trial (O'Connor 80 AD 305, 80 NYS 741). WITNESS COUPEU^ED TO ATTEND — Duty imposed: (Bennett 27 Hun 3'52; Clark 26 How 254). Objection wuived; by voluntary appearance (McCue 1 Hun 469). Subpoena: (Hodgman 60 Hun 156, 14 NYS 574; Nat Broadway Bk 14 NYS 529; Cockey 14 AbNS 183, 45 How 70). SutstantlaiX right: not affected by refusal to vacate order so as to authorize appeal to Court of Appeals (Rogers 56 NY 669). WITNESS COMPEibl^ED TO TESTIFY — Duty imposed: (Bennett 27 Hun 352; Clark 26 How 254). Obtain information: for purpose of testify- ing, cannot be compelled (Wallace 2 AD 501, 37 NYS 1078). Punished for refusal: (Eberle 50 AD 450, 64 NYS 246). Prospective witness: on new trial moved for (Denny 8 Mis 544, 28 NYS 744). Qualify as expert: for purpose of testifying, cannot be compelled (Wallace 2 AD 501, 37 NYS 1078). Subpoena duces tecum unauthorized: (Wal- lace 2 AD 501, 37 NYS 1078). Substantial right: not affected by refusal to vacate order so as to authorize appeal to Court of Appeals (Rogers 56 NY 669). WITNESS ENTITIiED TO COTJNSEIi — Not a party; ('Reynolds 2 Dem 399). SCOPE OP EXAMINATION PROPER — Cross examination permitted: (Moses 7 Rob 131, 34 How 212; 'Camp 4 Dem 212). Full, no limitation in order: (Bankers' Money Order Assn 120 AD 732, 105 NYS 773). WHO MAY MOVE TO VACATE ORDER — Adverse party: ('McCue 1 Hun 469; 'Ram- sey 39 How 62, 8 AbNS 174, 57 Barb 398; Moses 7 Rob 131, 34 How 212). Witness: directed to appear (McCue 1 Hun 469; Williams 3 CivP 448; Ramsey 39 How 62, 8 AbNC 174, 57 Barb 398; Erie Ry Co 35 How 74). MOTION TO VACATE ORDER TIMELY— After appearance before referee and: par- tial examination without objection ('Brie Ry Co 35 How 74); submitting to examina- tion CMoCue 1 Hun 469). SHOWING- STTPFICIENT TO PREVENT TAXING- OF DEPOSITIONS — Deny: existence of facts which moving party wishes to prove (Culvet-Rogniat 46 Mis 20, 93 NYS 241); knowledge of facts as to which testimony sought (Calvet- Rogniat 46 Mis 20, 93 NYS 241), matter (Davis 53 Mis 1, 102 NYS 868); statements altributed to witness (Davis 53 Mis 1, 102 NYS 868). Direct conflict: between statements attrib- uted to witness and testimony at trial (Davis 53 Mis 1, 102 NYS 868). Pail to deny material allegations: ('John- son 58 Mis 353, 110 NYS 1098). Frankness lacking: ('Johnson 58 Mis 353. 110 NYS 1098). Fullness lacking: ('Johnson 58 Mis 353, 110 NYS 1098). limit knowledge of witnesses: by process of exclusion, attempt to ('Johnson 58 Mis 353, 110 NTS 1098). Overlook material allegations: ('Johnson 58 Mis 353, 110 NTS 1098). No refusal to make affidavit: did not under- stand request therefor (Williams 3 CivP 448). Untruthfulness of allegations: in moving papers (Davis 53 Mis 1, 102 NYS 868). RTTIE CITED— But not applied: (Akhurst 64 Mis 445, 119 NYS 561; Brisbane 20 Hun 48). Rule 121. Notice of taking testimony by deposition. The notice of taking testimony iy deposition shall contain the title of the action and be subscribed with the name and address of the person giving the same and shall be served at least five days before the time specified therein for the taking of the testimony. EDITORIAI^ NOTES — Source: new. See CCP § 899 as to time of notice, which read: " The time for serving such a notice must be, at least, five judicial days before the deposition is taken; and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence of the attorney for the ad- verse party and the place where the depo- sition is to be taken." Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Notice of tak- ing testimony by deposition, CPA | 307. Star (•) means read Not into HEADUNB in capitals. For illustration see Rule 1. r. 122 OLEYEVQEB'8 RULES OF CIVIL PRACTICE 110 Rule 122. Application for an order for a deposition. If a party desire to take the deposition of an adverse party or a witness to obtain information to enable him to dravj a complaint, he shall apply for an order, or if he shall apply for an order to take testi- mony by deposition under any provision of article twenty-nine of the civil practice act, he must present proof by affidavit that statutory grounds exist for taking the same; that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action. If an adverse party, or the original owner of a claim, whose testimony is sought, be a corporation, joint-stock or pther unincorporated association, the affidavit must state the office or position in such corporation or association held by the person whose testimony is material and neces- sary. If the production of books and papers be desired, the affidavit must describe them, so far as practicable, and state facts to show that their production is material and necessary. EDITORIAL NOTES — Sonxce: CCP § 872, part; part is new; super- sedes General Rule of Practice 82. CCP § 872 revised from 2 RS 391, pt 3, c 7, tit 3, §§ 2 and 34. General Rule of Practice 82 was formerly Rule 21 of 1871, 1874; Rule 89 of 1877- Rule 83 of 1880, 1884, 1888; Rule 82 of 1896, 1900, 1910, 1913. General Rule 82 read: "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." Text In Italics is new matter, inserted June 17, 1921. ClvU Practice Act references: General pro- visions relating- to orders for taking testi- mony, CPA § 294. Star (•) means read Not into SEADI.INE In capitals. For illustration see Rule 1. SEASONS FOB AIiI^OWING SISCOVERY — Perpetnata testimony: when danger that witness cannot be produced at trial (Auto- mobile Club of America 128 AD 426, 112 NTS 785). Prevent: failure of justice, witness not a party (Hill 136 AD 651, 121 NTS 370); sur- prise (Lawson 140 AD 297, 125 NTS 261; Obregon 35 Mis 850, 72 NTS 1121). Promote justice: (Lawson 140 AD 297, 125 NTS 261). Public interest; (Oppenheim 160 NTS 438). Save time: of courts (Oppenheim 160 NTS 438). ■Use on trial: testimony elicited (Koplin 123 AD 327, 108 NTS 602). ACTIONS IN IViKICK DISCOTERV KAV BE HAD— Aceountln^r: (Thompson 135 AD 57, 119 NTS 742); matters relating to right to interlocu- tory judgment (Thompson 135 AD 57, 119 NTS 742); pleadings show plaintiff entitled to interlocutory judgment ('Thompson 135 AD 57, 119 NTS 742); to frame complaint (•Pierce 121 AD 501, 106 NTS 28); under royalty contract with publisher, examina- tion almost a matter of course where papers proper (Savage 8 AD 316, 40 NTS 946). Alienation of affections: denial by defendant to be examined (*Dryden 88 Mis 473, 151 NTS 121). Breach of: promise to marry ('Dryden 88 Mis 473, 151 NTS 121), examine plaintiff as to affirmative defenses (Poole 144 AD 155, 128 NTS 751); trust by corporate officer, ex- amine officer defendant (Beer Importing Co 136 AD 649, 121 NTS 342). Conunlssions: on sales of merchandise, re- cover (Gee 87 AD 157, 84 NTS 32). Conversion: (Smart Set Shirt Co 159 NTS 665). Creditors' action: (Anderson 130 AD 134, 114 NTS 348). Death: (Nolan 70 Hun 536, 24 NTS 238). Decedent's estate: action by temporary ad- ministrator to recover property claimed to belong to (Butler 31 AD 281, 52 NTS 756). Divorce: (Reynolds 81 Mis 362, 142 NTS 1); examine husband defendant as to property and income where all allegations of com- plaint denied ('Danziger 68 Mis 452, 124 NTS 177). Ejectment: (Ryan 46 AD 590, 62 NTS 39; Thebaud 15 NTS 664). Fraud: (Reed 122 AD 795, 107 NTS 893). Fraudulent conveyance: set aside (Bwen 155 AD 885, 139 NTS 1054). law or equity: (Glenney 64 NT 120). libel: (Mason 154 AD 651. 139 NTS 639; Nichoff 134 AD 473, 119 ^^TS 247; Gerney 91 Mis 493, 155 NTS 288; Connors 65 Mis 169, 119 NTS 513); examine plaintiff to sus- tain pleas of justification and mitigation (•Bergstrom 138 AD 178. 123 NTS 29); plaintiff examine defendant as to names of persons to whom libelous publication de- livered (Campbell 38 AD 137, 56 NTS 540). life insurance: action by assignee of policy (Farmer 73 Hun 622, 26 NTS 126). Money: deposited for margins on stock deal- ings, recover (Leach 34 AD 522, 54 NTS 550); loaned and advanced (Smith 76 Mis 254, 134 NTS 901); paid by mistake recover (Automobile Club of America 128 AD 426, 112 NTS 785). ]M:unici3>al corporation: against, plaintiff not entitled (Ihrig 169 NTS 273). Necessaries : furnished to wife, action against husband (Farquharson 67 Mis 277, 124 NTS 476). NegUg-enoe: (Koplin 123 AD 327, 108 NTS 602; Van Rensselaer 167 NTS 2). Note: action on (Clark 75 Hun 290, 27 NTS 43). Partnership: dissolution (Skolny 132 AD 680, 117 NTS 297), and disposition of property, only as to matters bearing on right to interlocutory decree (Bernheimer 59 AD 610, 69 NTS 659). Penalty: action for, tho acts constitute mis- demeanor, examination of third person sought (PvArmour 18 AD 584, 46 NTS 317). Personal injury: (Kessler 169 AD 814, 155 NTS 799; Brichta 152 AD 832, 137 NTS 751; Berg 146 AD 412. 131 NTS 262; Koplin 123 AD 327, 108 NTS 602; Van Rensselaer 167 NTS 2); defendant examine plaintiff (Naab 32 AD 478, 52 NTS 1094). Probate of will: set aside (Wallace 143 AD 211, 128 NTS 130). Bestrain: diversion and waste of mineral waters and gases (PvNatural (Jarbonlc Gas Co 140 AD 802, 125 NTS 510); further nego- tiation of promissory note (Peterson 143 AD 282, 128 NTS 505); production of play (Nillson 125 NTS 261). Sale: rescind for fraud and recover property (Davenport Glucose Mfg Co 33 Hun 32). Seduction: (*Dryden 88 Mis 473, 151 NTS 121); large damages claimed general exam- ination of defendant ('Wessel 144 AD 687, 129 NTS 521). Separation; antenuptial acts of plaintiff (•Gould 125 AD 375, 109 NTS 910). Slander: (Bradbury 161 NTS 685). Speolflo performance: contract of sale of realty (Bender 52 Mis 295, 102 NTS 152). Stockholder's action: against directors for waste and loss of assets (Murray 165 NTS 662); compel directors to account (Eckraan Ill DEPOSITIONS TO BE USED WITEIN THE STATE r. 122 178 AD 720, 165 NYS 145); prevent diversion of corporate assets (Rosenbaum 36 Mis 410, 73 NYS 714). Tort: (Kessler 169 AD 814, 155 NYS 799). Trust fund: reach income and apply to judg- ment against alleged beneficiary (Corn Exch Bk 84 AD 194, 82 NYS 641). Warranty: as to goods sold, breach (Regan 129 AD 315, 113 NYS 738). VriU: establish lost (Blatchford 24 AD 140, 48 NYS 783). PURPOSES POR WHICH DISCOVERY JOAY BE HAD — Acquire evidence: necessary in bringing ac- tion (Van Ray 66 How 269). Admissions: obtain ('McMahon 20 WkD 404); from adversary ('Ball 12 CivP 4). Adultery: of defendant in divorce action, es- tablish (Reynolds 81 Mis 362, 142 NYS 1). Affidavit: must show proper purpose (Butler 39 Mis 235, 79 NYS 419). Affirmative case or defense: .prove facts necessary to (Hennessy 167 NYS 792). Amount: to be claimed in complaint, ascer- tain ('Mendelson 155 AD 892, 139 NYS 1052; ♦Cohn 140 AD 507, 125 NYS 834; •Brick 128 AD 264, 112 NYS 642); to which plaintiff entitled, action for salary fixed at percentage of profits, ascertain (Oppen- heimer 151 AD 601, 136 NYS 197). Annoy: adversary ("Berger 81 Mis. 360, 142 NYS 2; »Jenkins 106 NY 272). Anticipate defense: (•Williams 52 Hun 68, 5 NYS 211). Authority: of individual, as president of de- fendant company, to make notes on its be- half or in its name, ascertain (•Wayne County Sav Bk 31 Hun 434). Avoid defense: (Mithertz 64 Mis 460, 118 NYS 610); false swearing as to loss on examination had under terms of fire insur- ance policy sued on (•Herzig 144 AD 174, 128 NYS 988); fraudulent proofs of loss under fire Insurance policy sued on (•Her- zig T34 AD 174, 128 NYS 988); in rare and exceptional cases only (Herzig 144 AD 174, 128 NYS 988); producing fraudulent proofs as to loss on examination had under terms of fire insurance policy sued on (*Herzig 144 AD 174, 128 NYS 98S); special defense (Berg 146 AD 412, 131 NYS 262). Basis of: defense, examine defendant to as- certain facts constituting (*MeBrill & Baker 53 Mis 253, 103 NYS 57); plaintiff's claim, examine him to ascertain (•McClarty 142 AD 750, 127 NYS 724). Brokers: ascertain dealings on behalf of cus- tomer suing (Talbot 16 Daly 174, 9 NYS 478). Cause of action: ascertain against whom ex- ists (•Nolan 70 Hun 536, 24 NYS 238), examination before action brought (•Schoel- ler 74 AD 347, 77 NYS 614); ascertain ex- istence (•Schuler 137 AD 576, 122 NYS 404; •Schoeller 74 AD 347, 77 NYS 614; ♦Tenoza 50 AD 581, 64 NYS 99; •White 44 AD 119, 60 NYS 702; 'Anthony & Co 42 AD 66, 58 NYS 307; 'Butler 39 Mis 235, 79 NYS 419; •Dobyns 31 Mis 829, 64 NYS 554; •Britton 3 Mis 514, 23 NYS 350; "Muller 52 Hun 123, 5 NYS 118; •Tllton 1 AbNC 348, 52 How 179; •Duffy 36 How 509), against party examined (•Byrnes 15 Mis 413, 36 NYS 1048), against persons not parties ('Blood- good 54 AD 634, 66 NYS 610; •Ziegler 5 AD 47, 40 NYS 65), examination sought by plaintiff (•Moto Bloc Import Co 140 AD 532, 125 NYS 427); determine against whom, examination sought before action com- menced (*BIlett 95 AD 417, 88 NYS 661); determine existence (•Boyle 96 Mis 578, 161 NYS 991), examination sought before serving complaint (•Rosenthal 125 AD 895, 110 NYS 786); determine whether at law or in equity (•Green 81 Hun 496, 31 NYS 8); establish (Kircher 93 Mis 130, 156 NYS 1101); meet (Kircher 93 Mis 130, 156 NYS 1101). Connection of defendants: with publication in which libel appeared, ascertain (Mason 154 AD 661, 139 NYS 639). Conspiracy; between defendants in slander action, examine defendants to prove (Brad- bury 161 NYS 685). Corroborate: cause of action or defense (Crum 82 Mis 419, 143 NYS 1080). Cross-examine: adversary (•Kornbluth 149 AD 108, 133 NYS 737; 'Plohn 76 Mis 252, 134 NYS 947), as to his own case (•Seide 148 AD 864, 133 NYS 623); defendant (•Su- tro 155 NYS 103), as to defense (•Ernst 149 AD 280, 132 NYS 11; •Dryden 88 Mis 473, 151 NYS 121), as to matters specifically denied in answer (•Bruoato 159 NYS 645); plaintiff as to affirmative case (•McClarty 142 AD 750, 127 NYS 724), as to cause of action (•Lawson 140 AD 297, 125 NYS 261), suing for personal injury ('Kessler 169 AD 814, 155 NYS 799). Dama^res: estimate or approximate In order to frame complaint ('Cohn 140 AD 507, 125 NYS 834); from libel complained of, show (Gerney 91 Mis 493, 155 NYS 288). Defendants: ascertain who are proper, action not started (Bensch 121 NYS 769). Defense: establish (Kircher 93 Mis 130, 156 NYS 1101); in another contemplated action, discover existence ('Schuler 137 AD 676, 122 NYS 404); interrogate defendant as to ('Jenkins 6 StR 425); meet (Kircher 93 Mis 130, 156 NYS 1101). Delay: ('Jenkins 106 NY 272). Determine: whether to proceed with or dis- continue action ('Tenoza 50 AD 581, 64 NYS 99). Disclose: defense ('Mithertz 64 Mis 460, 118 NYS 610); evidence by which defendant ex- amined intends to establish defense ('Bird 27 NYS 425). Discover evidence: (Watts 17 NYS 647); by which defendant to be examined will sup- port defense ('Fourth Nat Bk 29 Hun 441); on which adversary will rely in support of affirmative case ('Adams 37 Hun 232). Disprove: adversary's affirmative case (•Kessler 169 AD 814, 155 NYS 799); can- cellation of contract sued on (Sohweinberg 131 AD 795, 116 NYS 318); cause of action, defendant examine plaintiff ('Rogers 137 AD 197, 121 NYS 941); facts which adver- sary bound to prove ('Hennessy 167 NYS 792; Jurow & Co 163 NYS 1069). Double purpose: prepare for trial and frame amended complaint ('Frear 151 AD 687. 136 NYS 264). Establish affirmative case: of party seeking examination (Adams 37 Hun 232). Existence of facts: necessary for moving party's case, ascertain (Grelsman 4 CivP 32). Pishing' excursion: ('Terry 180 AD 714, 167 NYS 747; 'VanRiper 87 Mis 445, 150 NYS 947). Pix liability: as between two persons (•Boyle 96 Mis 578, 161 NYS 991). Prame amended complaint: (Jerrels 25 AD 348, 49 NYS 597). Prame answer: (Farmers Nat Bk 6 AD 373, 39 NYS 596; Koppel 50 Mis 626, 98 NYS 619), defendant possessed of necessary in- formation ('Sothmaii 168 AD 826, 154 NYS 449); general denial would put in issue mat- ters as to which disclosure sought CGolin 28 StR 213, 8 NYS 12); sufficient knowledge shown by moving papers CLoughlin 146 AD 434, 131 NYS 176; 'Waitzf elder 120 AD 144, 104 NYS 796). Prame bill of particulars: affidavit show suf- ficient knowledge ('Tanenbaura 54 AD 188 66 NYS 375); as to mitigation and justifica- tion in libel action, defendant examine plaintiff (Ball 48 Hun 149); necessary in- formation contained only in defendant's books (Campbell 38 AD 137, 56 NYS 540)- ordered (Chittenden 132 AD 169, 116 NYS 829). Prame complaint: (Glenney 64 NY 120; Men- delson 155 AD 892, 139 NYS 1052; Dreyfus 31 AD 628, 55 NYS 6; Darling 31 Mis 543 64 NYS 793; Davies 35 Hun 431; Brisbane 20 Hun 48; O'Reilly 12 Hun 124; Oppenheim 160 NYS 438; Judah 12 StR 130); able to r. 122 CLEVENGER'S RULES OP CIVIL PRACTKE 112 frame complaint in action in another state which proved futile and was terminated (Hill 115 AD 537, 101 NYS 411); action by temporary administrator to recover prop- erty claimed to belong to decedent's estate (Butler 31 AD 281, 52 NYS 756); action for accounting ("Pierce 121 AD 501, 106 NYS 28); action to establish lost will (Blatch- ford 24 AD 140, 48 NYS 783); affidavit show sufficient knowledge possessed by moving party ('DeLacy 59 Supr 137, 13 NYS 800); affidavit state good cause of action ("De- Martini 176 AD 641, 163 NYS 484); amount to be claimed only matter on which infor- mation needed, approximate accuracy im- possible without (Boeck 85 AD 575, 83 NYS 426); possible without ("Boeck 85 AD 575, 83 NYS 428); cause of action not shown ("Mitchell 124 AD 325, 108 NYS 953) against defendants to be examined ("Rap- polt 139 AD 132, 123 NYS 795); discover necessary facts (Hutchinson 29 Hun 450); for accounting, affidavit allege fiduciary re- lation, possession of property thereunder, demanS for information, and refusal ("Gardner 124 AD 654, 109 NYS 95); fully advised as to necessary facts ("LaGrave 132 AD 108, 116 NYS 465); knowledge of plaintiff sufficient ("Thompson 134 AD 614, 119 NYS 331); necessary facts for good complaint shown by affidavit ("Schmerber 38 AD 622, 58 NYS 84); necessary informa- tion possessed by plaintiff ("White 134 AD 948, 118 NYS 1057); no cause of action shown ("Riley 165 AD 768, 152 NYS 485); possible without ("Boyle 96 Mis 578, 161 NYS 991); sufficient knowledge possessed by plaintiff ("Rosenthal 125 AD 895, 110 NYS 786; "Bloodgood 54 AD 634, 66 NYS 610; "Butler 39 Mis 235, 79 NYS 419); suf- ficient knowledge shown by moving papers ("Elmes 39 Mis 244, 79 NYS 425); witness not a party ("Cohen 52 Mis 400, 104 NYS 1027); witness not a prospective party ("Moto Bloc Import Co 140 AD 532, 125 NYS 427; "Long Island Bottlers Union 65 AD 459, 72 NYS 976; "Anthony & Co 42 AD 66, 58 NYS 907). Prame pleading^: applicant can without ex- amination ("Diefendorf 125 AD 651, 110 NYS 68); necessity shown (Diefendorf 125 AD 651, 110 NYS 68). fraud; on part of defendant examined, pro- cure evidence of (Frothingham 9 CivP 304). Harass: adversary ("Berger 81 Mis 360, 142 NYS 2). Identity; of person liable on existing cause of action, ascertain examination sought by plaintiff ("Moto Bloc Import Co 140 AD 532, 125 NYS 427). Inspect: books of adversary ("Hart 41 Mis 436, 84 NYS 1065); records of corporation defendant under guise of examining officers ("Shumaker 116 AD 302, 101 NYS 587). InTestiffation; as to cause of action under- taken by defendant, ascertain result ("Lewis 115 AD 735, 100 NYS 1052). Justification for libel: only facts known to and believed by defendant at time of pub- lication available in defense ("Strakosch 53 Hun 503, 6 NYS 246). maps and public records: ascertain correct- ness by examination of custodian or officer making ("Lewis 115 AD 735, 100 NYS 1052). ITames; of adversary's witnesses, discover ("Chapin 16 Hun 53). Negative cause of action; defendant examine plaintiff's assignor ("Bernstein 140 AD 316, 125 NYS 225). Obtain advance information: as to case of plaintiff examined ("Hartog & Beinhauer Candy Co 124 AD 627, 109 NYS 113). Obtain evidence; (Kornbluth 149 AD 108, 133 NYS 737), essential to moving party's case or defense (Lawson 140 AD 297, 125 NYS 261), only permissible purpose (Caldwell 128 AD 315, 112 NYS 655); for use on trial (Thompson 135 AD 57, 119 NYS 742; Bock 130 AD 229, 114 NYS 473; Kramer 70 AD 615, 74 NYS 1049); in support of cause of acfion (Berg 146 AD 412, 131 NYS 262); to aid plaintiff in proving cause (Strodl 63 Mis 54, 116 NYS 570). Obtain testimony; of adverse party for use on trial (Goldmark 111 AD 526, 97 NYS 1078). Opponent's evidence: ascertain in advance of trial ("Kerr 153 AD 681, 138 NYS 619; "Reusens 136 AD 653, 121 NYS 353; "Seg- schneider 134 AD 217, 118 NYS 1000; "Plant 52 AD 628, 65 NYS 236; "Dobyns 31 Mis 829, 64 NYS 554). Other actions or proceeding's; use testimony obtained in ("Ehrich 122 AD 719, 107 NYS 846). Ownership; of newspaper, ascertain in order to bring libel action against properSparty ("Singer 40 Mis 561, 82 NYS 870). Parties; ascertain who should be. examine proposed defendant before action brought (Darling 31 Mis 543, 64 NYS 793). Perpetuate testimony: application before ac- tion brought ("Sloboder 74 Mis 198, 131 NYS 1003); persons old, sick, infirm, or about to leave state (Diefendorf 125 AD 651, 110 NYS 68); prospective defendant (Bensch 121 NYS 769). Persons; for whom defendant acted, ascer- tain (US Drainage Co 166 AD 942, 151 NYS 1148); who entered into arrangement or as- sociation for draining marshes, ascertain (US Drainage Co 166 AD 942, 151 NYS 1148). Plaintiff's case: as set forth in complaint, prove, examination of defendant (Merrill & Baker 53 Mis 253, 103 NYS 57). Prepare for defense: of action ("Beach 14 Hun 79). Prepare for trial; ("Berg 146 AD 412, 131 NYS 262; "Hagerty 138 AD 905, 122 NYS 843; "Segschneider 134 AD 217, 118 NYS 1000; "Schweinberg 131 AD 795, 116 NYS 318; "Diefendorf 125 AD 651, 110 NYS 68; "Leary 15 AD 397, 44 NYS 82; "Cook 90 Mis 34, 152 NYS 465; "Merrill & Baker 53 Mis 253, 103 NYS 57; "Davis Machine Co 42 Mis 52, 85 NYS 574; "Weston 48 Hun 320, 1 NYS 412; "Wayne County Sav Bk 31 Hun 434; "Crooke 23 Hun 176; "Chapin 16 Hun 53; "Sutro 155 NYS 103). incidental use for such purpose will not defeat right to take deposition applied for in good faith to be used at trial (Blant 52 AD 628, 65 NYS 236). Prevent surprise: (Clark 75 Hun 290, 27 NYS 43). Proceed -with defense: ("Segschneider 134 AD 217, 118 NY'S 1000). Prove: cause of action or defense (Crum 82 Mis 419, 143 NYS 1080); perjury by plain- tiff in verifying complaint ("Segschneider 134 AD 217, 118 NYS 1000). Pry into: adversary's case ("Vogel Co 148 AD 639, 133 NYS 225; "Plohn 76 Mis 252, 134 NYS 947; "Crum 82 Mis 419. 143 NYS 1080); adversary's defense ("Kornbluth 149 AD 108, 133 NYS 737; "Vogel Co 148 AD 639, 133 NYS 225). Seal party in Interest; examine plaintiff to show he is not ("Ketcham 71 Mis 439, 128 NYS 695). Separate defense; avoid (Wallace 159 NYS 74); cross examine defendant as to ("Wal- lace 159 NYS 74). Status: of defendant, whether copartner- ship or joint-stock association, ascertain ("Wayne County Sav Bk 31 Hun 434). Sustain: affirmative case (Smith 76 Mis 254, 134 NYS 901); defense (NY Assets Realization Co 168 AD 700, 143 NYS 898). Truth; as to matters to which false repre- sentations sued for relate, ascertain to frame complaint ("Diefendorf 125 AD 651, 110 NYS 68). Vitle: asserted by plaintiff in ejectment, overthrow (Thebaud 15 NYS 664). Trial; use deposition on by way of defense, examination sought by defendant after an- swer (Ball 12 CivP 4). ■Olterior; ("Wessel 137 AD 576, 122 NTS 404; "Schuler 137 AD 576, 122 NTS 404; •Berger 81 Mis 360, 142 NTS 2). 113 DEPOSITIONS TO BE USED WITHIN THE STATE r. 122 Unnecessary alleeratlon: ascertain facts so as to insert in complaint (•Diefendorf 125 AD 651, 110 NTS 68). Witnesses: procure information as to (•Beach 14 Hun 79). PERSONS WHO MAY BE EXAMINED— Aifeut of; corporation party ('Reichmann 26 Hun 433); party, probable Inability to attend trial the ground (Vaughan 139 AD 15, 123 NYS 535). AroUtect: formerly employed by building corporation party, employment terminated before action brought ('Blias 167 NTS 1098). Assignee: of cause of action, in no better position than assignor (Dyett 13 CivP 127); of vendee of property sale of which alleged to have been induced by fraud and recovery of which sought (Davenport Glucose Mfg Co 33 Hun 32). Assigmor: of plaintiff, examination by de- fendant to show that plaintiff cannot estab- lish a cause of action ('Bernstein 140 AD 316, 125 NTS 225). Attesting witnesses; to will, contested pro- bate (Tymeson 186- NYS 659). Corporate officers: examination properly limited to one where issue relates to au- thority to act for corporation (Chapman 149 AD 52, 133 NYS 625). Corporation; as such, not a party ('Char- tered Bk of India .Australia & China 136 AD 646, 121 NTS 399; 'Lasher 170 NTS 931). Corporation^ party; affidavit fail to state name of any officei; whose examination sought ('Turk 144 AD 53, 128 NTS 809); plaintiff, not organized until after note sued on given, officers through whom ex- amination to be had cognizant of circum- stances attending making and delivery thereof (NT Assets Realization Co 158 AD 700, 143 NTS 898); through individuals having management (Terry. 180 AD 714, 167 NTS 747), officer (Chapman 149 AD 52, 133 NTS 625; Muldoon 98 AD 169, 91 NTS' 65; Wallace 30 AD 186, 51 NTS 760; Strodl- 63 Mis 54, 116 NTS 570; Rosenbaum 36 Mis 410, 73 NTS 714), officer or director only (Herzig 144 AD 174, 128 NTS 988), officers or managing agent (Flamingo Film: Corp 173- AD -959, 158 NYS 6«0). Defendant: (Lord Const Co 189 AD 886, 178 NTS 250; Brichta 152 AD 832, 137 NTS 751; Ernst 149 AD 280, 132 NTS 11; Rey- nolds 81 Mis 362, 142 NTS 1; Lyon 80 Mis 642, 141 NYS 851; Greenbaum 181 NTS 738; Murray 167 NYS 662); charged with crime or moral dereliction by allegations of complaint (Smart Set Shirt Co 159 NYS 665); denying allegations of complaint, tho plaintiff has personal knowledge of facts (Istok 118 AD 162, 103 NYS 13); in default, action against several defendants (NeW Tork Lake Erie & Western BR Co 36 Hun 288); only person by whom fact essential to plaintiff's case can be established (Stevens 163 AD 543, 148- NTS 958); other proof readily obtained by plaintiff ('Tan- enbaum 89 AD 17, 85 NYS 122); pros- pective (Glenney 64 NT 120), examined by prospective plaintiff (Merchants Nat Bk 101 NT 176), to frame complaint (Darling 31 Mis 543, 64 NTS 793); setting up sep- arate .defense (Hennessy 167 NYS- 792); whom plaintiff must produce as witness to prove cause of action (Kornbluth 149 AD 108, 133 NTS 737). Director; of corporation party (Herzig 144 AD 174, 128 NTS 988; Barnet 106 Mis 198, 175 NTS 491; Reichmann 26 Hun 433). Employe; of corporation party (PvArmour 18 AD 584, 46 NTS 317; 'Reichmann 26 Hun 438). ridnclary relations: between parties, rules relaxed (Rosenbaum 36 Mis 410, 73 NTS 714). Individual defendants; joined with publish- ing company in libel action (Mason 164 AD 651, 139 NTS 639). Interested: but not party to record ('Seely 78 NY 220). Interpleader: codefendant of moving party (Central Tr Co 183 AD 375, 170 NYS 767). Manaerer: of chemical department of corpo- ration party (Miller 104 Mis 370, 172 NTS 219). Manag'ing' agent; of corporation party (Bar- net 106 Mis 198, 175 NYS 491), not shown to be officer ('Herzig 144 AD 174, 128 NTS 988). Municipal officers: as such, no showing that applicant not entitled to inspect records and thus obtain desired information ('Uvalde Asphalt Paving Co 149 AD 491, 134 NTS 50). National lianlc: party defendant, through officers (New Tork Lake Erie & Western RR Co 36 Hun 288). Nonresident: officer of foreign corporation (Farmers' Nat Bk 6 AD 373, 39 NTS 596^; party (Wallace 143 AD 211, 128 NTS 130). Officer: of corporation party (Herzig 144 AD 174, 128 NTS 988; Press Publishing Co 33 AD 242, 53 NTS 371; Barnet 106 Mis 198, 175 NTS 491; Reichmann 26. Hun 433); apart from examination of corporation (•Meade 119 AD 761, 104 NTS 523; 'Shu- maker 116 AD 302, 101 NTS 587; 'Bar- net 106 Mis 198, 175 NTS 491); formerly such but ceased to be such before applica- tion ('Chartered Bank of India Australia & China 136 AD 646, 121 NTS 399; Chitten- den 132 AD 169 116 NYS 829); knowledge material on matters in issue not indicated ('Solar Baking Powder Co 128 AD 550, 112 NTS 1013); not such at time of occur- rences as to which disclosure sought ('Hart 41 Mis 436, 84 NYS 1065); such only as have personal knowledge, moving papers should point out which likely to have (Solar Baking- Powder Co 128 AD 550, 112 NTS 1013). Party: (Chittenden 132 AD 169, 116 NTS 829); at instance of adversary (Crooke 23 Hun 176); at own instance (Trotter 29 Mis 662, 61 NTS 181; Crooke 23 Hun 176; McVity 13 NTS 914; Briggs 4 CivP 328); having knowledge (Bradbury 161 NTS 685)' of material facts (Shonts 116 AD 854, 102 NTS 324); on own behalf on ground of being about to depart or so sick and in- firm that attendance at trial improbable) (•Williams 3 NTS 681); other witnesses available (Niehoff 134 AD 473, 119 NYS 247; Grant 118 AD 850, 103 NYS 674; Meade 119 AD 761, 104 NTS 523; Goldmark 111 AD 526, 97 NTS 1078; Torch 53- Mis llO', 10? NYS 1095; Ehrich 52 Mis 641, 103 NTS 1023); perpetuate own testimony (Farmers Loan & Tr Co 144 NT 354; Jarvis 33 NTS 723); probable inability to attend trial the ground (•Vaughan 139 AD 15, 123 NTS. 535); stipulates to appear at trial (Gold- mark 111 AD 526, 97 NYS 1078; Torch 53 Mis 110, 103 NYS 1095; 'Lowenthal 20 Mis 420, 45 NYS 1031); subpoena would pro- cure attendance at trial (Meade 119- AD 761, 104 NYS 523; Grant 118 AD 850 103 NYS 674; Torch S3 Mis 110, 103 NYSi 1095; Ehrich 52 Mis 641, 10'3 NTS 1023)- will attend trial (Bender 52 Mis 295. 102 NTS 152). Person other than party; (Chittenden 132 AD 169^ 116 NYS 829); prospective, exam- ination sought before action instituted ('Long Island Bottlers Union 65 AD 469 72 NYS 976); prospective, to frame com- plaint CMoto Bloc Import Oo 140 AD 632 125 NTS 427; 'Anthony & Co 42 AD 66, 58 NTS 907; 'Cohen 52 Mis 400 104 NTS 1027); stipulates to appear at trial (Gold- mark 111 AD 526, 97 NYS 1078): will attend trial (Bender 62 Mis 295, 102 NYS 152). Personal knowledge; one without ('Blasiusi 187 AD 347, 175 NYS 709). • Physician; making physical' examination of plaintiff in personal injury action, no show- ing of Illness, infirmity, or necessity for r. 122 OLEVEN0ER'S RULES OF CIVIL PRACTICE lU deposition (•"Wood 121 AD 636, 106 NTS SOS, afg 56 Mis 66, 106 NTS 940). Plalutlff; (SohefC 191 AD 30, 180 NTS 831: Poole 144 AD 155, 128 NTS 751); charging aetendant with acts involving crime or ?S?',?'»'*®'"^"°t'°" (Smart Set Shirt Co 159' NTS 665); personal injury action, in con- nection with physical examination, as to character and extent of injuries (Wood 121 AD 636, 106 NTS 308, afg 56 Mis 66, 106 NTS 940); under ordinary circumstances (•Wood 121 AD 636, 106 NTS 308, afg 56" Mis 66, 106 NTS 940); states will be at trial and testify (Presby 6 AD 600, 39 NTS 957). President: of corporation party (Educational Films Corp 192 AD 621, 183 NTS 113); tho not such at time of transactions com- plained of, corporation defendant in action, for conspiracy to sell stock at fictitious value (Kellogg 168 AD 671, 154 NTS 359). Proponent of will: contested probate (Car- ter 193 AD 355, 184 NTS 39). Prospective party: (Bensch 121 NTS 769). Publisher: of libel, joined with other de, fendants in action therefor (Mason 154 AD 651, 139 NTS 639). Sales ofBce: of corporation party, person in charge, not managing agent ('Varley 158 NTS 155). Servant: of corporation party (•Reichmann. 26 Hun 433). Solicitin^r agent: of insurance company party, not a managing agent (•Blasius 187 AD 347, 175 NYS 709). Superintendent: of mine in which accident causing death sued for occurred (Nolan 70' Hun 536, 24 NTS 238). Treasurer: of corporation party: action for conspiracy to sell stock at fictitious value, corporation a defendant (Kellogg 168 AD 671, 154 NTS 359); presumably the officer 'having knowledge of financial transactions, (Solar Baking Powder Co 128 AD 550, 112 NTS 1013). Vrnstees: action to reach income of trust fund and apply to judgment against alleged beneficiary, all may be examined where ap- pointee* at different times (Corn Exchange Bk 84 AD 194, 82 NTS 641). Unincorporated association: action against treasurer, treasurer not technically a party so as to be examined as such, can be examined only as witness (Duncan 32 Hun 12). Vendee: of property, sale of which alleged to have been induced by fraud and recovery of which sought (Davenport Glucose Mfg Co 33 Hun 32). Vice-president: of corpora tiou party, ground to believe that he -possesses material knowl- edge (Solar Baking Powder Co 128 AD 550, 112 NTS 1013). Wife; of defendant, tho relations betweert them not harmonious (Moriarta 54 Mis 271, 105 NYS 973). Yardmaster: of corporation party, not officer, director, or managing agent (•Bar- net 106 Mis 198, 175 NTS 491). WHO MAY APPIiV POB SISCOVIiRY — Defendant: (Poole 144 AD 155, 128 NTS: 751); setting up denials only, ordinarily (•Kerr 153 AD 681, 138 NTS 619). Poreign creditor: suing on claim (Lyon 80 Mis 642, 141 NTS 851). Plaintiff! (Ernst 148 AD 280, 132 NTS 11; Smith 76 Mis 254, 134 NTS 901); pros- pective (Nolan 70 Hun 536, 24 NTS 238), examine prospective defendant (Merchants Nat Bk 101 NY 176). Trustee: in bankruptcy suing on claim of bankrupt (Ewen 155 AD 885, 139 NTS 1054). APPLICATION FROFEBI^V MADE TO— Court: (*Hirshfleld 51 Mis 644, 99 NTS 912 prior rule). Judge: (Hirshfleld 51 Mis 644, 99 NTS 912 prior rule). ITOTICE OF APPI^ICATZOir TOMECXS- SABY— Order properly oTitained TTlthont; prior rule (Jerrells 25 AD 348, 49 NTS 597). I^EAVi: OF COURT TO AFFKY UHHECBI- SABY— Second application; previous order vacated for insufllciency of papers (Skinner 88 Hun 307, 34 NTS 748). APPI^IOATIOK TIUEI^Y — Accounting': action for, seek examination as to matters of accounting before issue as to right to accounting determined (•Del- Genovese 149 AD 266, 133 NTS 765; •Jacobs 112 AD 655, 98 NTS 541). Action commenced: before (LaGrave 132 AD 108, 116 NTS 465; Drake 12 Mis 65, 33 NTS 177; •Morris 19 WkD 375), by service of summons ('Brandon Mfg Co 2 AbNC 162), purpose to frame complaint (Sloboder 74 Mis 198, 131 NTS 1003), purpose to per- petuate testimony (*Sloboder 74 Mis 198, 131 NYS 1003). Complaint served: after (Jacobs 45 Mis 56, 90 NTS 824); before (Duffy 36 How 509), only when examination necessary to frame complaint (Fisher 128 AD 268, 112 NTS 668; Bloodgood 54 AD 634, 66 NTS 610), plaintiff examine defendant (Dorf 18 NTS i34). Delay: no reason for denial where necessity for discovery exists (Skinner 88 Hun 307, 34 NTS 748); two years after trial on which dismissal or direction of verdict avoided' by obtaining leave to move to amend complaint, examination of defendant sought in support of original complaint ('Ander- son 140 AD 301, 125 NTS 81). Demurrer to complaint disposed of: before (•Sprague 129 AD 365, 113 NTS 789), pur- pose stated as preparation for trial and frame amended complaint (*Frear 151 AD 687, 136 NTS 264). Issue Joined: before (Duffy 36 How 509), ground of application testimony material and necessary for prosecution of action' (•Diefendorf 125 AD 651, 110 NTS 68), not necessary to frame pleading (•Lewln.. sohn Bros 6 AD 459, 39 NTS 570), only when necessary to frame pleading (.Tacobs 45 Mis 56, 90 NTS 824), purpose other than to frame complaint ('Moto Bloc Import Co 140 AD 532, 125 NTS 427). Pending action: (La Grave 132 AD 108, 116 NYS 465). Separation action: counterclaim for absolute divorce, main issue not tried, examination relate to amount of permanent alimony (•Haff 132 AD 338, 116 NTS 1100); ex- amine husband as to financial condition as bearing on amount of permanent alimony before issue of right to separation deter- mined (•Van Valkenburgh 149 AD 482, 133 NTS 942). Sununons served: before, examination to frame complaint (•Moto Bloc Import Co 140 AD 532, 125 NTS 427). Trial: before (Goldmark 111 AD 526, 97 NTS 1078), any time (Mithertz 64 Mis 460, 118 NTS 610; Strodl 63 Mis 54, 116 NTS 670);. during (Goldmark 111 AD 526, 97 NTS 1078), deposition of party taken at his own Instance (Hebron 101 AD 463, 92 NTS 149) on ground of inability to attend trial because of age and 111 health, cause exist- ing and known before trial commenced (•Hebron 101 AD 463, 92 NTS 149; »Gath- right [Jan 4, 1922] 66 NTLJ 1171). PROOF MUST BE BY AFFIDAVIT— Basis: for granting of order (Loewy 129 AD 459, 114 NTS 211). Defendant setting up only denials; make ap- plication (Kerr 153 AD 681, 138 NTS 619). Only permissi'ble metbod: (Oppenheimer 161 AD 601, 136 NTS 197; Mitchell 124 AD 325, 108 NTS 953; Oooke 23 Hun 176; Beach 14 Hun 79). .Order tvlthont affidavit: improper (Upson 103 AD 381, 92 NTS 1099). 115 DEPOSITIONS TO BE USED WITHIN THE STATE r. 122 VTHO MAY UAKE APPIDAVIT— Attorney of moving party; (Railway Age & Northwestern Railroader 18 Mis 561, i2 NYS 697); actual knowledge of facts stated positively and giving sources and grounds as to facts stated on information and belief, party absent in foreign country (Tread- well 87 AD 425, 84 NYS 557); based on in- formation from party's agent, no reason shown why affidavit not made by agent (♦Cross 17 CivP 199, 6 NYS 84); fail to show reason why not made by party or that facts are not within party's knowledge (•Darling 31 Mis 543, 64 NYS 793); no sufficient explanation why not made by party ('Doyle 23 Mis 431, 52 NYS 195); only excuse moving party outside state, allegations stated to be within personal knowledge but matters set up show that he could not have had personal knowledge (•Orne 74 AD 404, 77 NYS 475); party a nonresident and absent from state (Reed 122 AD 795. 107 NYS 893); practicable foi- party to make affidavit ( 'Treadwell 87 AD 425, 84 NYS 557); provided knowledge or sources of information shown (Hale 22 Hun 19). Clerk: of attorney of moving party, personal knowledge of clerk or attorney not shown, reason why not made by party not stated (•Bank of Pittsburgh 18 NYS 575). Party: must ordinarily (Oppenheimer 161 AD 601, 136 NYS 197). Tblrd person: having knowledge (Railroad Age & Northwestern RR 18 Mis 561, 43 NYS 697). FORM OF AFFIDAVIT FROFEB — Basis of: order directing defendant to appear for examination after vacation of original order for examination reversed, recite original order, have annexed affidavit on which granted, set forth vacation and re- instatement of original order, not neces- sary to contain all requirements of affidavit fur original order (Haebler 36 Mis 642, 7* NYS 461). Information and 'belief 'basis: of statements, sources and grounds not stated (•Tllton 1 AbNC 348, 52 How 179). Frevions application: facts as to not stated, irregularity merely (Skinner 88 Hun 307, 34 NYS 748; Pratt 10 Mis 445, 31 NYS 465); fail to state that none made (•Mitchell 121 AD 677, 106 NYS 449). Several defendants to 'be examined: should state what expected to be proved by each (Simmons 65 Hun 612, 20 NYS 508). VERIFICATION OF AFFIDAVIT SXTFFI- CIEM'T — Averment inserted by counsel; after verifi- cation by party, verification not applicable thereto (Canet 86 Mis 99, 149 NYS 101). eOOD FAITH IN SEEKUTa EXAIHITATIOK NECESSAR'X' — lack of: requires denial (Terry 180 AD 714, 167 NYS 747; Kornbluth 149 AD 108, 133 NYS 737; Vogel Co 148 AD 639, 133 NYS 225; Lawson 140 AD 297, 125 NYS 261; Meyer 134 AD 961, 119 NYS 512; Ehrich 122 AD 719, 107 NYS 846; Goldmark 111 AD 526, 97 NYS 1078; Dryden 88 Mis 473, 151 NYS 121; Van Riper 87 Mis 445, 150 NYS 947; Berger 81 Mis 360, 142 NYS 2; Bender 52 Mis 295, 102 NYS 152; Chapin 16 Hun 53; Cross 17 CivP 199, 6 NYS 84; Bradbury 161 NYS 685). Movlusr papers must show: (Oppenheimer 151 AD 601, 136 NYS 197; Rogers 137 AD 197, 121 NYS 941; Chapin 16 Hun 53; Brad- bury 161 NYS 685). Object must 'be: to obtain evidence essen- tial to moving party's case (Crum 82 Mis 419, 143 NYS 1080). snovrijua good faitk of appi^icationt SXTFFICIENT— Annoy: defendant apparent object ('Berger 81 Mis 360, 152 NYS 2). Contradiction: between facts sought to be elicited and sworn allegations In pleading of moving party (*Vogel Co 148 AD 639, 133 NYS 225; *Van Ripep 86 Mis 445, 150 NYS 947). Crime cliarged: In complaint does not nega-' tive, application to examine defendant (Smart &et Shirt Co 159 NYS 665). Denial: in answer by defendant to be ex- amined: considered on question of (Sch- weinler 168 AD 819, 154 NYS 456); does not negative (Schweinler 168 AD 819, 154 NYS 456). Pacts: must be shown (Rogers 137 AD 197, 121 NYS 941). Grounds for nellef : that defendant to be examined will establish falsity of allega- tions in his verified answer not disclosed (•■VFeeks 146 AD 621, 131 NYS 408). Harass: defendant apparent object (*Berger 81 Mis 360. 142 NYS 2). Improper purpose apparent: ('Berger 81 Mis 360, 142 NYS 2). Moral dereliction charg'ed; in complaint does not negative, application to examine de- fendant (Smart Set Shirt Co 159 NYS 665). Other proof available: does not negative (Bradbury 161 NYS 685); to be considered on question of (Bradbury 161 NYS 685). Ownership: of wagon causing personal in- jury denied by defendant on information and belief, seek to examine plaintiff on that issue (•Crura 82 Mis 419, 143 NYS 1080). Relationship: of parties to be examined to testator whose will attacked for mental incapacity, that of brother and sister (Wallace 143 AD 211, 128 NYS 130). triterior purpose: apparent (•Berger 81 Mis 360, 142 NYS 2); possibility of obvious' (•Wessel 144 AD 587, 129 NYS 521). SHO'WrN'G NAMES OF PARTIES NECES- SARY— AU: (Beach 14 Hun 79). Prospective action: not commenced (Ellett 95 AD 417, 88 NYS 661). Statutory reg,nlrement: under CCP § 872 (Lord Const Co 189 AD 886, 198 NYS 250; Mithertz 64 Mis 460, 118 NYS 610; De- pierris 74 Hun 628, 26 NYS 970; Ball 12 ClvP 4). SHOWING ITAUES OF PARTIES SUFFI- CIENT— Title of action: preceding affidavit (*Beach 14 Hun 79). SHOWING RESIDENCE OF PARTIES NECESSARY— Action not commenced: (Ellett 95 AD 417. 88 NYS 661). AU: (Beach 14 Hun 79). Defendants not yet served: (*US Drainage Co 166 AD 942, 151 NYS 1148). Objection available to; defendant whose residence not stated (Frank 88 Mis 297, 150 NYS 664). Statutory requirement: under CCP § 872 (Lord Const Co 189 AD 886, 178 NYS 250;. Mithertz 64 Mis 460, 118 NYS 610; Dennis^ 29 Mis 600, 61 NYS 503; Depierris 74 Hun 628, 26 NYS 9-70; Ball 12 Civ P 4; Lasher 170 NYS 931). Unknown: must state attempt and failure to ascertain (Dennis 29 Mis 600, 61 NYS 503) SHOWING RESIDENCE OF PARTIES SUP. PICIENT — "Of No. 102 West S8th Street": ('Dennis 29 Mis 600, 61 NYS 503). Supplementary afBdavit; supplying omission (Prank 88 Mis 297, 150 NYS 664). Unknown: efforts to ascertain not shown (•Simmons 85 Hun 612, 20 NYS 508). SHOWING AS TO APPEARANCE OF PARTIES NECESSARY-? Statutory requirement: under CCP § 873 (Lord Const Co 189 AD 886, 178 NYS 250- Mithertz 64 Mis 460, 118 NYS 610; Depier- ris 74 Hun 628, 26 NYS 970; Beach 14 Hun 79; Ball 12 CivP 4). SHOWING AS TO ATTORNEYS NECES- SARY — Statutory requirement; under CCP § 872 (Lord Const Co 189 AD 886, 178 NYS 250- r. 122 CLEYEJiGER'S RULES OF CIVIL PRACTICE 116 5^"JV^'"*^„A* Mas 460, 118 NYS 610; Dennis Its^i^ i^-^i,^L¥'^^ ^"3: Depierris 74 Hun »™LI^J^^S ^^0; Lasher 170 NYS 931). SHOWING' AS TO ATTORNEYS SUFPI- CIENT^ Additional affidavit: to supply defect per- missible (Miller 104 Mis 370, 172 NYS 21-9). Address given: no statement as to whether residence or office (*Dennis 29 Mis 600, 61 NYS 503; 'Beach 14 Hun 79), "of 291 Broadway, New York City" (*Van Roy 30 Hun 77). Amendment: permissible to cure defect (Miller 104 Mis 370, 172 NYS 219). SHOVriNQ AS TO NATUBE OI" ACTION NECESSARY — Action pending: (Jenkins 106 NY 272; Titus 185 AD 585, 173 NYS 230; Continental Se- curities Co 147 AD 118, 131 NYS 713; Mit- chell 124 AD 325, 108 NYS 953; Mithertz 64 Mis 460, 118 NYS 610; Greer 15 Hun 432; Ball 12 CivP 4; Swain 12 NYS 57). Purpose: to enable judge to determine whether examination ordered and limit same (Jenkins 106 NY 272). Substance: to be shown (Greer 15 Hun 432) SHOWING AS TO NATUBE OP ACTION SUPPICIENT— Breach of contract: nothing said as to whether legal or equitable relief sought (Canet 86 Mis 99, 149 NYS 101)^ Contract: recover on (*Greer 15 Hun 432). Corporate stock: wrongfully issued and con- verted to own use by defendant, president of corporation, plaintiff stockholder (*Swain 12 NYS 57). Dissolve corporation: sequester its property, and enforce personal liability of officers and directors (Sayre 70 AD 329, 75 NYS 286). Iiease: refuse to carry out, breach of con- tract or duty not charged even by implica- tion (*Boorman 56 How 251). misappropriation: of corporate bonds or proceeds thereof (Frothingham 9 CivP Pleading's: made part of affidavit (Conti- nental Securities Co 147 AD 118, 131 NYS 713). Reference to: unverified complaint attached to and made part of affidavit (Grant 118 AD 860, 103 NYS 674). Reformation of instrument: fail to show In- firmity or ground on which reformation sought ('Churchman 51 Hun 375, 4 NTS 245). Representations: recover money paid on faith of, not allege falsity or show what representations were (*Boorman 56 How 251). Statute: action for recovery under statute cited, too vague, indefinite, and uncertain (•Boorman 56 How 251). SHOWING- EXISTENCE OP CAUSE OP AC- TION NECESSARY — Action not commenced.: (White 44 AD 119, 60 NYS 702; Singer 40 Mis 56, 82 NYS 870; MuUer 52 Hun 123, 5 NYS 118; Hale 22 Hun 19; McCoon 60 How 149). Prame complaint: purpose of examination (Berkowitz 121 AD 878, 106 NYS 865; Sands 98 AD 148, 90 NYS 749; Anthony & Co 42 AD 68, 58 NYS 907; Cohen 52 Mis 400, 104 NYS 1027; Buder 39 Mis 235, 79 NYS 419). SHOWING EXISTENCE OP CAUSE OP ACTION SUPriCIENT — Admitted: cause of action need not be (Tal- bot 16 Daly 174, 9 NYS 478). Commissions: right to recover some amount indicated (Sands 98 AD 148, 90 NYS 749). Complete: cause of action need not be stated, sufficient to state nature of action and substance of judgment demanded (Frothingham 9 CivP 304). Conclusions: drawn from facts not stated (•Boskowitz 121 AD 878, 106 NYS 865); of fact (*Cohen 52 Mis 400, 104 NYS 1027). Contract: of employment with provision for share of profits basis of action, no allega- tion of breach or that profits earned CMul- ler 52 Hun 123, 5 NYS 118). Evidence: in support of causi need not be set forth (Talbot 16 Daly 174, 9 NYS 478). Prand: and conslracy charged, inconsistent facts alleged (*Sands 98 AD 148, 90 NTS 749). information and belief: basis of allegations, sources and grounds not stated (*Bosko- vntz 121 AD 878, 106 NYS 865). £ease: refuse to carry out, breach of con- tract or duty not charged even by implica- tion ('Boorman 56 How 251). More than one: (Judah 12 StR 130). Nominal damasres: only recoverable on mat- ters shown (•Tanenbaum 43 AD 194, 59 NYS 317). Operation: on plaintiff unskillfully and negli- gently performed, details of treatment and results stated (Gains 15 Mis 75, 36 NTS 1113). Person against -whom:' cause of action exists, certainly as to required (White 44 AD 119, 60 NYS 702). Purpose: of action to recover damages for breaches of written contract ('Hale 22 Hun 19). Representations: recover money paid on faith of, not allege falsity or show what representations were ('Boorman 56 How 251). Some relief: right to show tho complete cause of action not stated (Butler 39 Mis 235, 79 NYS 419). Statute: recovery under sought, too vague, indefinite, and uncertain ('Boorman 56 How 251). Stockholder's liability: for debt of corpora- tion, action to enforce, fail to show that defendant's stock issued and outstanding when debt to plaintiff incurred ('Doyle 23 Mis 431, 52 NYS 195). Substantial diamages: right to must appear (Tanenbaum 43 AD 194. 59 NTS 317). SHOWING SUBSTANCE OP JUDGUENT DEIIANDES NECESSARY — Action pending: (Titus 185 AD 585, 173 NTS 230; Mitchell 124 AD 325, 108 NYS 953; Canet 86 Mis 99, 149 NYS 101; Mithertz 64 Mis 460, 118 NYS 610; Greer 15 Hun 432; Swain 12 NYS 57; Ball 12 CivP 4). SHO'WING SUBSTANCE OP JUDGHBNT DEMANDED SUPPICIENT — Corporate stock: wrongfully issued and con- verted to own use by defendant, president of corporation, plaintiff stockholder ('Swain 12 NYS 57). Supplemental affidavit; to supply omission (Canet 86 Mis 99, 149 NTS 101). SHOWING EXISTENCE OP DEFENSE NECESSABY— Defendant seek: examination (McCoon 60 How 149). SHOWING EXISTENCE OP DEFENSE SUP- PICIENT — Accommodation character: of note sued on and plaintiff acquired same after maturity without consideration, fail to negative that note was in hands of bona fide holder before or at maturity ('McCoon 60 How 149). SHO'WING NATUBE OP DEFENSE NECES- SABY— Action pending: (Titus 185 AD 585, 173 NTS 230; Continental Securities Co 147 AD 118, 131 NYS 713; Mithertz 64 Mis 460, 118 NTS 610; Roberts 57 Supr 526, 8 NYS 870; Ball 12 CivP 4; O'Connor 172 NYS 909). Defendant seek: examination of plaintiff (Robertson 20 Hun 243). Time of application; immaterial, ' statement required of defendant whether application before or after answer (Robertson 20 Hun 243). SHOWING NATURE OF DEFENSE SUF- FICIENT — Collusion: between husband and mortgagee ■of husband's land to cut off wife's interest by foreclosure (Howe 62 Hun 240, 16 NTS 736). Existence of defense: knowledge or informa- tion as to must appear, ignorance relate to 1X7 DEPOSITIONS TO BE USED WITHIN THE STATE r. 122 particulars necessary to proper pleading (Robertson 57 Supr 526, 8 NYS 870). Justification: in libel action based on falsity of representations made by plaintiff, no knowledge as to such falsity disclosed (•Robertson 57 Supr 526, 8 NYS 870). SHOWING- NAME OF FEBSON TO BE EX- AMINED NECESSABV— Officers or directors: of corporation party (Mithertz 64 Mis 460, 118 NYS 610). Statutory recLulrement: under CGP § 872 (Oppenheimer 151 AD 601, 136 NYS 191; Mithertz 64 Mis 460, 118 NYS 610; Dennis 29 Mis 600, 61 NYS 603; Croolie 23 Hun 176; Beach 14 Hun 79). SKOWING NAME OF PERSON TO BE EX- AMINED SUFFICIENT — Flaiutiff: designate as ('Beach 14 Hun 79). Secretary of corporation: state name as offi- cer to be examined fail to state that exam- ination of corporation desired (Donaldson 119 AD 513, 104 NYS 178). SHOWING- RESIDENCE OF PERSON TO BE EXAMINED NECESSAR7 — Officer of corporation: (Turk 144 AD 53, 128 NYS 809). Statutory reanirement : under CCP § 872 (Oppenheimer 151 AD 601, 136 NYS 197; Mithertz 64 Mis 460, 118 NYS 610; Dennis 29 Mis 600, 61 NYS 503; Crooke 23 Hun 176). SHOWING- RESIDENCE OF PERSON TO BE EXAMINED SUFFICIENT — "Of 720 Seventh avenue"; ('Dennis 29 Mis 600, 61 NYS 503). SHOWING OFFICE OR POSITION HEIiD BY WITNESS SUFFICIENT — "Managing- agent": of corporation party further fact appear that he is an officer (Herzig 144 AD 174, 128 NYS 988); nothing to indicate that he is an officer (*Herzig 144 AD 174. 128 NYS 988). SHOWING- KNOWXEDGE OF WITNESS NECESSARY — Omission: renders denial of order proper (Grant 118 AD 850, 103 NYS 674; Burnitt 7 Mis 75, 27 NYS 353). Special inowledg-e: of party to be examined (Naab 33 AD 47S. 52 NYS 1094). SHOWING KNOWI^EDGE OF WITNESS SUFFICIENT — Facts: must be stated (Grant 118 AD 850, 103 NYS 6741. Source of information: as to, son of witness (Moriarta 54 Mis 271, 105 NYS 973). Statement of person to be examined: basis of affidavit, no affidavit of such person tho accessible ("Vincent 107 AD 499, 95 NYS 343). SHOWING- EXISTENCE OR STATUTORY G-ROUNDS NECESSARY — Rule requires; (Chittenden 132 AD 169, 116 NYS 829; Bradbury 161 NYS 685). SHOWING- PERSON TO BE EXAMINED ABOUT TO DEPART NECESSARY — Party; (•Hebron 101 AD 463, 92 NYS 149; •Davis Machine Co 42 Mis 52, 85 NYS 574; •Trotter 29 Mis 662, 61 NYS 181). Person other than party: (Town of Han- cock 93 NY 82; SchefE 191 AD 30, 180 NYS 831; Harburger 167 AD 1, 152 NYS 272; Bernstein 140 AD 316, 125 NYS 225; Char- tered Bank of India Australia & China 136 AD 646, 121 NYS 399; Chittenden 132 AD 169, 116 NYS 829; Hebron 101 AD 463, 92 NYS 149; Rudini 91 Mis 486, 155 NYS 301; David Machine Co 42 Mis 52, 85 NYS 574; Trotter 29 Mis 662, 61 NYS 181). SEOWTNG PERSON TO BE EXAMINED ABOUT TO DEPART SUFFICIENT — Absent: when affidavit made, promised to re- turn but would leave shortly thereafter (Higginson 53 Hun 129, 6 NYS 173). Business requires: presence in state everj- week (•Warner 180 AD 72, 167 NYS 247). Early return; intention or likelihood not negative (*Warner 180 AD 72, 167 NYS 247). Employe: of adverse party (♦SohefC 191 AD 30, ISO NTS 831). Information and belief: based on statements to and investigations by affiant (Burr 18 AbNC 447). Nonresident: about to return to home in another state (Vaughan 139 AD 15, 123 NYS 535); attend business in New York daily (•Rudini 91 Mis 486, 155 NYS 301); place of business in New York where attends regularly every week (•Warner 180 AD 72, 167 NYS 247). Statement of person to he examined; basis of affidavit, no affidavit of such person tho accessible ('Vincent 107 AD 499, 95 NYS 343). SHOWING PERSON TO BE EXAMINED UNABI.E TO ATTEND TBIAI. NECES- SARY— Party: ('Hebron 101 AD 463, 92 NYS 149; •Davis Machine Co 42 Mis 52, 85 NYS 574; •Hay 30 Mis 35, 61 NYS 647, rvd 50 AD 462, 64 NYS 202; *Trotter 29 Mis 662, 61 NYS 181; 'Burnett 26 Mis 547, 57 NYS 474). Person other than party; (Town of Hancock 93 NY 82; SchefC 191 AD 30, 180 NYS 831; Harburger 167 AD 1, 152 NYS 272; Bern- stein 140 AD 316, 125 NYS 225; Chartered Bank of India Australia & China 136 AD 646, 121 NYS 399; Chittenden 132 AD 169, 116 NYS 829; Hebron 101 AD 463, 92 NYS 149; Rudini 91 Mis 483, 155 NYS 301; Davis Machine Co 42 Mis 52, 85 NYS 574; Trotter 29 Mis 662. 61 NYS 181). SHOWING PERSON TO BE EXAMINED UNABIiE TO ATTEND TRIAIi SUF- FICIENT — Age advanced: probable inability (Waters 185 AD 803. 174 NYS 90). Illness: probable resulting inability (Waters 185 AD 803, 174 NYS 90); serious nature several months previous, no facts or cir- cumstances indicating continuance of Ill- ness or disability, opposing affidavit of wit- ness state health regained (*Johnson 62 AD 157, 70 NYS 875). Nonresident: heart trouble and about to re- turn to home in another state (Vaughan 139 AD 15, 123 NYS 535). Sufferer from: " form of nervous prostration "Which the excitement of an examination in open court would be certain to aggravate *' ('Montgomery 14 AD 629, 43 NYS 787). SHOWING OF SPECIAIi CIRCUMSTANCES NECESSARY — Party: to be examined ('Davis Machine Co 42 Mis 52, 85 NYS 574; 'Trotter 29 Mis 662. 61 NYS 181; 'McVity 13 NYS 914). Person other than party; to be examined (Town of Hancock 93 NY 82; Brannon 193 AD 892, 183 NYS 107; Scheff 191 AD 30, 180 NYS 831; Bernstein 140 AD 316, 125 NYS 225; Chartered Bank of India Australia & China 136 AD 646, 121 NYS 399; Chittenden 132 AD 169, 116 NYS 829; Barnet 106 Mis 198, 175 NYS 491; Rudini 91 Mis 483, 155 NYS 301; Davis Machine Co 42 Mis 52. 85 NYS 574; Trotter 29 Mis 662, 61 NYS 181; Jacobson 129 NYS 452). SHOWING OP SPECIAI. CIRCUMSTANCES SUFFICIENT — Assignor: of cause of action (*SchefiC 191 AD 30, 180 NYS 831), witness sought to be examined by defendant is, not sufficient in itself but proper for consideration (•Bern- stein 140 AD 316, 125 NYS 225). Bill of particulars required; plaintiff cannot furnish unless examination had (Hill 136 AD 651, 121 NYS 370). Business; of corporation party so great that only employes have knowledge of matters in issue, examination of employes sought ('American Woolen Co 139 AD 671, 124 NYS 203). Close relations; between person to be ex- amined and defendant, no showing of prob- able absence from trial or false swearing (Harburger 167 AD 1, 152 NYS 272). Control of adverse party; witness under, refuse to give information enabling appli- cant to serve subpoena, witness may leave r. 122 OLEVENOER'S RVLES OF CIVIL PRACTICE 118 state by crossing Hudson River, other cir- cumstances (Automobile Club of America 128 AD 426, 112 NYS 785). Difficulty of serving' sublioena: on witness to be examined ('Jacobsen 129 NYS 452). Discretion of court: exercised in determining (Chittenden 132 AD 169, 116 NYS 829). Employe: of adverse party ('SchefE 191 AD 30, 180 NYS 831; •Rudini 91 Mis 483, 155 NYS 301). Evade service of subpoena: witness would endeavor to (•Automobile Club of America 128 AD 426, 112 NYS 785). Evidence at trial doubtful; tend to make (Brannon 193 AD 892, 183 NYS 107). railure of justice; necessity of examination to prevent must appear (Barnet 106 Mis 198, 175 NYS 491). Future attendance; of witness, must relate to probability of (Brannon 193 AD 892, 183 NYS 107; Rudini 91 Mis 483, 155 NYS 301). Hostility; to party seeking examination, no showing- as to probable false swearing (•Harburger 167 AD 1, 152 NYS 272). Kecessary; for purpose of preparing for trial ('Jacobsen 129 NYS 452). Nonresident: (Stern 19 AD 316, 46 NYS 110); no place of business or residence within state (Frank 88 Mis 297, 150 NYS 664). Personal condition and purposes; of witness, must relate to (Brannon 193 AD 892, 183 NYS 107; Rudini 91 Mis 483, 165 NYS 301), as bearing on probability of future attendance ('Town of Hancock 93 NY 82). Presence and evidence at trial: must make doubtful and uncertain (Town of Hancock 93 NY 82; Brannon 193 AD 892, 183 NYS 107); shown to be doubtful (Davis Machine Co 42 Mis 52, 85 NYS 574). Residence: in foreign country, tho witness under contract requiring presence in coun- try and expects to return (Klaw 151 AD 720, 136 NYS 224); outside city where action brought, office for transaction of business therein (*Harburger 167 AD 1, 152 NYS 272). Keslgnatlou; pendente lite of secretary of corporation party, examination of secretary (Searle 67 Mis 560, 124 NYS 811). ■Well grounded apprehension: that witness cannot be examined at trial must be shown (American Woolen Co 139 AD 671, 124 NYS 203; Barnet 106 Mis 198, 175 NYS 491). SHOWING- KEATEBIADITY' OP TESTZMONV NECESSABV — Affirmative defense: plaintiff seek to examine defendant as to (Tuthill 141 AD 520, 126 NYS 409). Express averment: of materiality jurisdic- tional requirement (Gains 15 Mis 75, 36 NYS 1113). Jurisdictional requirement; (Jenkins 106 NY 272; Bamberger 181 AD 805, 169 NYS 227; Frear 151 AD 687, 136 NYS 264; Oppen- heimer 151 AD 601, 136 NYS 197; Del Genovese 149 AD 266, 133 NYS 765; Slaughter 146 AD 620, 131 NYS 324; McClarty 142 AD 750, 127 NYS 724; Bern- stein 140 AD 316, 125 NYS 225; Dawson 140 AD 297, 125 NYS 261; Berpstrom 138 AD 178, 123 NYS 29; Schuler 137 AD 576, 122 NYS 404; Rogers 137 AD 197, 121 NYS 941; Thompson 135 AD 57, 119 NYS 742; Reynolds 134 AD 732, 119 NYS 135; Seg- schneider 134 AD 217, 118 NYS 1000; Chit- tenden 132 AD 169, 116 NYS 829; Schwein- berg 131 AD 795, 116 NYS 318; Mitchell 124 AD 325, 108 NYS 953; Ryan 124 AD 34, 108 NYS 371; Koplin 123 AD 327, 108 NYS 602; Ehrich 122 AD 719, 107 NY'S 846; Wood 121 AD 636, 106 NYS 308, afg 56 Mis 66, 106 NYS 940; Oakes 119 AD 358, 104 NYS 244; Grant 118 AD 850, 103 NYS 674; Rittenber? 114 Mis 167, 186 NYS 927; Barnet 106 Mis 198, 175 NYS 491; Behl 102 Mis 623. 169 NYS 179; Lesen Advertising Agency 93 Mis 516, 157 NYS 304; Cook 90 Mis 34, 152 NTS 465; Van Riper 87 Mis 445, 150 NYS 947; Mithertz 64 Mis 460, 118 NYS 610; Davis Machine Co 42 Mis 52, 85 NYS 574; Hart 41 Mis 436, 84 NYS 1065; Elmes 39 Mis 244, 79 NYS 425; Britton 3 Mis 514, 23 NYS 350; Weston 48 Hun 320, 1 NYS 412; Crooke 23 Hun 176; Hale 22 Hun 19; Chapin 16 Hun 53; Beach 14 Hun 79; Bali 12 CivP 4; Hennessy 167 NYS 792; Van Rensselaer 16 i NYS 2; Pfeifer 163 NYS 577; Bradbury 161 NYS 685; Wallace 159 NYS 74). " Necessary ": not synonymous with " ma- terial" (Koplin 123 AD 327, 108 NYS 602). Purpose: is protection of party to be ex- amined (StClair Paper Mfg Co 16 AD 317, 44 NYS 625). SHOWING- MATEBIAJ^ITV OP TESTZUONV SXJPPICIBNT — Accounting-: under royalty contract with publisher, plaintiff expect to prove by ex- amination of defendant number of books printed and sold and to whom sold and amounts received therefor, number on hand, number returned as damaged, and amount and nature of all charges and claims against plaintiff (Savage 8 AD 316, 40 NYS 946). AdmissibiUty: must be shown (Bergstrom 138 AD 178, 123 NYS 29; Rogers 137 AD 197, 121 NYS 941); of deposition on trial must appear (Barnet 106 Mis 198, 175 NYS 491). Apropriate facts; necessary (Van Rens- selaer 167 NYS 2). Authority: of employ of corporation main issue, examine officers (Wood 114 AD 108, 99 NYS 677). Breach of contract: to carry fire insurance, action for, amount and value of stock of merchandise carried (Tanenbaum 89 AD 17, 85 NYS 122). Breach of promise to marry; general denial, financial condition of defendant (♦Berger 81 Mis 360, 142 NYS 2). Broker: sue for commissions for procuring loan which person produced refused to make on ground that title defective, seek to show that title good ('Crasto 3 NYS 682). Conclusions: (•Kornbluth 149 AD 108, 13J NYS 737; *Segschneider 134 AD 217, 113 NYS 1000; *Irving 131 AD 184, 115 NTS 254; *Leary 15 AD 397, 44 NYS 82; 'Van Riper 87 Mis 445, 150 NYS 947; •Burnett 26 Mis 547, 57 NYS 474; Robertson 20 Hun 243; *Van Rensselaer 167 NYS 2). Counterclaim.: will ask " certain affirmative relief " nature not stated, separation action, no inference that testimony sought ma- terial on such issue ('Gould 125 AD 375, 109 NYS 910). Defense! nature not stated (*Titus 185 AD 585. 173 NYS 230). Divorce: all allegations of complaint denied, examine husband as to property and income (♦Danziger 68 Mis 452, 124 NTS 177); charges denied, property and income of hus- band ('Reynolds 81 Mis 362, 142 NTS 1). Ejectment: defendant seeking examination of plaintiff allege cannot form any idea of theory, pretense, or claim upon which plain- tiff sets up right to land, searched records and made inquiries without enlightenment (Thebaud 15 NYS 664). Pacts and circumstances: clearly set forth(Rit- tenberg 114 Mis 167, 186 NTS 927); must ap- pear (Chittenden 132 AD 169, 116 NTS 829); must be specified (Kornbluth 149 AD 108, 133 NTS 737; Wallace 143 AD 211, 128 NTS 130; McClarty 142 AD 750, 127 NTS 724; Rogers 137 AD 197, 121 NY'S 941; Reynolds 134 AD 732, 119 NTS 135; Segschneider 134 AD 217, 118 NTS 1000; Irving 131 AD 184, 115 NYS 254; Ryan 124 AD 34, 108 NYS 371; Waitzfelder 120 AD 144, 104 NYS 796; Oakes 119 AD 358. 104 NYS 244; Grant 118 AD 850, 103 NTS 674; Goldmark 111 AD 526, 97 NTS 1078; Naab 32 AD 478. 52 NYS 1094; Learv 15 AD 397. 44 NTS 82; Behl 102 Mis 623, 169 NTS 179; Van Riper 87 Mis 445, 150 NTS 947; Mithertz 64 Mis 460. 119 DEPOSITIONS TO BE USED WITHIN THE STATE r. 122 118 NYS 610; Butler 39 Mis 235, 79 NTS 419; Burnett 26 Mis 547, 57 NYS 474; Ab- bott-Downing Co 87 Hun 299, 34 NYS 433; Wayne County Sav Bk Co 31 Hun 434; Crooke 23 Hun 176; Hale 22 Hun 19; Rob- ertson 20 Hun 243; Greer 15 Hun 432; Ball 12 CivP 4; Hennessy 167 NYS 792; Van Rensselaer 167 NYS 2), purpose of require- ment to enable judge to determine whether application within purpose and intent of law (Chapln 16 Hun 53), prevent abuse Sohwelnberg 131 AD 795, 116 NYS 318; Goldmark 111 AD 526, 97 NYS 1078; Mlth- ertz 64 Mis 460, 118 NYS 610); not stated (•Higglns 137 AD 823, 122 NYS 465; *Gould 125 AD 375, 109 NYS 910). * false representatlonB: on which action based made In letters and telegrams sought to be identified by examination (Reed 122 AD 795, 107 NYS 893). foreclosure: of mortgage on husband's land, wife defend on ground of collusion to cut off her interest, show ill terms between husband and wife, cruel treatment, failure to provide properly, and attempt to out off dower (Howe 62 Hun 240, 16 NYS 736). General: allegations ('Bamberger 181 AD 805, 169 NYS 227); averment ('Butler 39 Mis 235, 79 NYS 419). Impure milk: action for sale of, how milk poisoned not part of affirmative case so as to authorize examination of defendant (•Cook 90 Mis 34, 152 NYS 465). Xiiference: fairly and clearly deducible from aJl papers before court on motion (Rosen- baum 36 Mis 410. 73 NYS 714). mformation: not disclosed the basis (*Kom- bluth 149 AD 108, 133 NYS 737). IDlabillty of defendant: to be examined, evi- dence sought not tend to prove (*Lesan Advertising Agency 93 Mis 516, 157 ISTYS 304). Xlbel action: specific acts of misconduct on issue of bad reputation for chastity (*Oakes 119 AD 358, 104 NYS 244). ITote: action on, plaintiff examine defendant as to defense of usury in transfer by de- fendant to person from whom plaintiff re- ceived note ('Fourth Nat Bk 29 Hun 441). Opinion: of affiant and grounds therefor showing materiality (Ball 12 CivP 4). Present and saw: occurrence out of which cause of action arose (Cherbuliez 123 AD 814, 108 NYS 321). BelatiousMp : of parties to be examined to testator whose will attacked for mental in- capacity, brother and sister (Wallace 143 AD 211, 128 NYS 130). Belevancy: must be shown (Bergstrom 138 AD 178. 123 NYS 29). Bestraln: reorganization of corporation, ac- tion to, cause of bankruptcy of corporation (•Sehuler 137 AD 576, 122 NYS 404). Salary: sued for fixed at percentage of profits, disclosure of profits sought (Oppen- heimer 151 AD 601, 136 NYS 197). Separation action: and counterclaim for ab- solute divorce, evidence bearing on amount of permanent alimony (*Haff 132 AD 338. 116 NYS 1100); seek disclosure of financial condition of husband ('Van Valkenburgh 149 AD 482, 133 NYS 942). Services: advice, and use of office furnished, action for, examination as to profits on sale of stock made without plaintiff's knowledge (•Ehrich 122 AD .719, 107 NYS 846); ren- dered, action for, employment to render such services (Moriarta 54 Mis 271, 105 NYS 973). Varae alleffationa: ('Bamberger 181 AD 805, 169 NYS 227). SROWINa NECESSITY OF TESTIMOmT BEQUIBED — AfBxmative defense: plaintiff seek to examine defendant as to (Tuthill 141 AD 520, 126 NYS 409). Before instead of at trial: (Simmons 65 Hun 612, 20 NYS 508); testimony of adversary (Hay 50 AD 462, 64 NYS 202, rvg 30 Mis 35, 61 NYS 647). Express aveiment: of necessity jurisdictional requirement (Gains 15 Mis 75, 36 NYS 1113). Jocisdictioual reatilrement: (Jenkins 106 NY 272; Central Tr Co 183 AD 375, 170 NYS 767; Bamberger 181 AD 805, 169 NYS 227; Kerr 153 AD 681, 138 NYS 619; Frear 151 AD 687, 136 NYS 264; Oppenhelmer 151 AD 601, 136 NYS 197; Del Genovese 149 AD 266. 133 NYS 765; Slaughter 146 AD 620, 131 NYS 324; McClarty 142 AD 750, 127 NYS 724; Bernstein 140 AD 316, 125 NYS 225; Bergstrom 138 AD 178, 123 NYS 29; Rogers 137 AD 197, 121 NYS 941; Reynolds 134 AD 732, 119 NYS 135; Segsohnelder 134 AD 217, 118 NYS 1000; Chittenden 132 AD 169, 116 NYS 829; Schwelnberg 131 AD 795, 116 NYS 318; Mitchell 124 AD 325, 108 NYS 953; Ryan 124 AD 34, 108 NYS 371; Koplin 123 AD 327, 108 NYS 602; Ehrich 122 AD 719, 107 NYS 846; Wood 121 AD 636, 106 NYS 308, afg 56 Mis 66, 106 NYS 940; Oakes 119 AD 358, 104 NYS 244; Rittenberg 114 Mis 167. 186 NYS 927; Oakley 113 Mis 135, 184 NYS 106; Behl 102 Mis 623, 169 NYS 179; Lesan Advertising Agency 93 Mis 516, 157 NYS 304; Cook 90 Mis 34, 152 NYS 465; Van Riper 87 Mis 445, 150 NYS 947; Mithertz 64 Mis 480, 180 NYS 610; Davis Machine Co 42 Mis 52, 85 NYS 574; Hart 41 Mis 436, 84 NYS 1065; Blmes 39 Mis 244. 79 NYS 42'5; Britton 3 Mis 514, 23 NYS 350; Weston 48 Hun 320, 1 NYS 412; Crooke 23 Hun 176; Chapin 16 Hun 53; Beach 14 Hun 79; Ball 12 CivP 4; O'Connor 172 NYS 909; Hennessy 167 NYS 792; Van- Rensselaer 167 NYS 2; Pfeifer 163 NYS 577; Bradbury 161 NYS 685; Wallace 159 NYS 74). " material "; not synonymous with " neces- sary " (Koplin 123 AD 327, 108 NTS 602). Purpose: is protection of party to be exam- ined (StClair Paper Mfg Co 16 AD 317, 44 NYS 625). SHOWIITG NECESSEFST OF TESTIMOmr SUFFICIENT — Absolute necessity; need not be shown (Terry 180 AD 714, 167 NYS 747; Eokman 178 AD 720. 165 NTS 145). Accounts: of decedent unintelligible, plain- tiff executor suing on account examine de- fendant (Wahle 2 Mis 343, 21 NYS 1012, afg 20 NYS 372). Admissibility: must be shown (Bergstrom 138 AD 178, 123 NYS 29). Admission: by defendant to be examined of allegations of complaint, affirmative de- fense and counterclaim set up (Empire Cream Separator Co 164 AD 223, 149 NYS 649). Atarmative proof; by party seeking exam- ination must be required (Kessler 169 AD 814, 155 NTS 799). Ag'eucy: relation between parties, facts pecu- liarly within knowledge of party to be ex- amined, technical rules relaxed (Drake 12 Mis 65, 33 NYS 177). Appropriate facts: necessary (Van Rensse- laer 167 NYS 2). Arg'nmentative: ('Feuchtwanger 52 Hun 611, 5 NYS 129). Authenticity: of will, examine proponent, at- testing witnesses available ('Oakley 113 Mis 135, 184 NYS 106: *Tyraeson 186 NTs 659). Authority; of employe of corporation main issue, examine officers (Wood 114 AD 108, 99 NTS 677). Before rather than at trial; fiduciary rela- tions, many transactions precise nature of which, must be determined to enable plain- tiff clearly to present his cause, confusion and delay if examination deferred until trial (Rosenbaum 36 Mis 410, 73 NTS 714). Belief; as to facts sought to be elicited ('Hennessy 167 NTS 792). Bill of particulars; would disclose most of facts desired ('Pfeifer 163 NTS 577); fur- nish information sought ('Jimenez 21 AD r. 122 OLEVENQER'S RULES OF CIVIL PRACTICE 120 387, 47 NTS 557; *Crum 82 Mis 419, 143 NYS 1080). Breach of contract: to carry fire insurance, action for, amount and value of stock of merchandise carried (Tanenbaum 89 AD 17, 85 NYS 12/). Breach of promise to uiarry: general denial and release pleaded, financial condition of defendant, no examination as to ('Berger 81 Mis 360, 142 NYS 2). Broker: action against for Irregularities in Steele transactions for plaintiff, only state- ment of actual transactions in books of defendant to be examined (Judah 12 StR 130); action to recover money paid to on false representations that losses incurred in certain transactions, notices of trans- actions lost and persons with whom trans- actions claimed to have been had deny same (Dyett 50 Hun 278, 2 NYS 841); sue for commissions for procuring loan which person produced refused to make on ground that title defective, seek to show that title good ('Crasto 3 NYS 682). Burdeu of proof on: adversary of moving party ('Tymeson 186 NYS 659); moving party (Ernst 149 AD 280, 132 NYS 11; Peterson 143 AD 282, 128 NYS 505; Plohn 76 Mis 252, 134 NYS 947; Tymeson 186 NYS 659); party to be examined (•Vejarano 165 AD 246, 150 NYS 778; •Empire Cream Sepa- rator Co 164 AD 223, 149 NYS 649; 'Kerr 153 AD 681, 138 NYS 619; 'Seide 148 AD 864, 133 NYS 623; 'Kircher 93 Mis 130, 156 NYS 1101; 'Plohn 76 Mis 252, 134 NYS 947; *Ketcham 71 Mis 439, 128 NYS 695; *Sutro 155 NYS 103), as to matters in question (*Pfeifer 163 NYS 577). "Cannot safely proceed to trial": with- out disclosure sought ('Naab 32 AD 478, 52 NYS 1094); examination (•Burnett 2ff Mis 547, 57 NYS 474). Commercial traveler: party seeking to have own deposition taken is, about to leave on extended business trip and may not re- turn in time for trial (McVlty 13 NYS 914). Compensation: sued for dependent as to amount on profits of defendant (Oppen- heimer 151 AD 601, 136 NYS 197). Concession: by adversary that facts as claimed by moving party (•Cherbuliez 123 AD 814, 108 NYS 321). Conclusions: (•Kornbluth 149 AD 108, 133 NYS 737; •Segschneider 134 AD 217, 118 NYS 1000; •Irving 131 AD 184, 115 NYS 254; •Leary 15 AD 397, 44 NYS 82; 'Van Riper 87 Mis 445, 150 NYS 947; *Burnett 26 Mis 547, 57 NYS 474; •Robertson 20! Hun 243; »Vatt Rensselaer 167 NYS 2). Conclusive proof: of necessary facts obtain- able only by examination of officers of cor- poration party (Press Publishing Co 33 AD 242, 53 NYS 371). Conspiracy: to refuse transfer of stock sold by plaintiff and make pretended purchase at higher price and hold plaintiff for differ- ence, action for, fictitious, manipulated, and "wash" character of sales (Bioren 140 AD 523, 125 NYS 392). Contract: sued on denied, testimony sought not necessary to prove contract (•O'Connor 172 NYS 909). Convenience resulting to: party seeking ex- amination (Eckman 178 AD 720, 165 NYS 145); persons who would otherwise be called as witnesses (Bckman 178 AD 720, 165 NYS 145). Counterclaim: will ask "certain affirma- tive relief," nature not stated, separation action, no Inference that testimony sought material on such issue ('Gould 125 AD 375, 109 NYS 910). Damages: sued for items and details, de- fendant examine plaintiff ('Hartog & Bein- hauer Candy Co 124 AD 627, 109 NYS 113). Defense: nature not stated ('Titus 186 AD 585, 173 NYS 230). Demurrer: to complaint undisposed of (•Sprague 129 AD 365, 113 NTS 789). Details and particulars sought ; in examina- tion to frame complaint, knowledge of fun- damental facts shown by moving papers (•DeLacy 59 Supr 137, 13 NTS 800). Divorce action: charges denied, property and income of husband (•Reynolds 81 Mis 362, 142 NTS 1). Documentary evidence; incontrovertible In character, available for proof < 'Cherbuliez 123 AD 814, 108 NTS 321). Donltt: not require denial (Kircher 93 Mis 130, 15& NTS 1101). Efforts to discover facts: from other sources must be shown (Naab 32 AD 478, 52 NYS 1094). Ejectment: defendant seeking examination of plaintiff allege cannot form any Idea; of theory, pretense, or claim upon which plaintiff sets up right to land, searched records and made inquiries without en- lightenment (Thebaud 15 NTS 664). " Ezamlna4;ion ": necessary ('Greer 15 Hun 432). Exclusive knowledge: of party to be ex- amined made to appear (Oppenhelmer 151 AD 601, 136 NTS 197). Execution of will: contestant examine at- testing witnesses, ('Tymeson 18& NTS 659); examine proponent attesting wit- nesses available (•Oakley 113 Mis 135, 184 NTS 106; 'Tymeson 186 NTS 659). Facts and circumstances: clearly set forth (Rittenberg 114 Mis 167, 186 NTS 927); fully stated and satisfactory (Bigler 73 Hunr 556, 26 NTS 112); must be specified (Kornbluth 149 AD 108, 133 NTS 737; Wal- lace 143 AD 211, 128 NTS 130; McClarty 142 AD 750, 127 NTS 724; Rogers 137 AD 197, 121 NTS 941; Reynolds 134 AD 732, 119 NTS 135 ; Segschneider 134 AD 217, 118 NTS 1000; Chittenden 132 AD 169, 116 NTS 829; Irving 131 AD 184, 115 NTS 254; Ryan 124 AD 34, 108 NTS 371; Waitzfelder 120 AD 144, 104 NTS 796; Oakes 119 AD 358, 104 NTS 244; Goldmark 111 AD 526, 9T NTS 1078; Naab 32 AD 478. 52 NTS 1094; Leary 15 AD 397, 44 NTS 82; Behl 102 MiS 623, 169 NTS 179; Van Riper 87 Mis 445, 150 NTS 947; Mithertz 64 Mis 460, 118 NTS 610; Butler 39 Mis 235, 79 NTS 419; Bur- nett 26 Mis 547, 57 NTS 474; Abbott-Down- ing Co 87 Hun 299, 34 NTS 433; Wayne County Sav Bk 31 Hun 434; Crooke 23 Hun 176; Hale 22 Hun 19; Robertson 20 Hun 243; Greer 15 Hun 432; Ball 12 CivP 4; Van Rensselaer 167 NTS 2), purpose toi enable judge to determine whether appli- cation within purpose and intent of lawi (Chapin 16 Hun 53), prevent abuse (Schweinberg 131 AD 795, 116 NYS 318;i Goldmark 111 AD 526, 97 NTS 1078? Mithertz 64 Mis 460, 118 NTS 610); not stated (•Higgins 1»7 AD 823, 122 NTS 465; •Hennessy 167 NTS 792), showing purpose to avoid separate defense ('Wallace 159 NTS 74). Pail to show; defendant to be examined noS available as witness at trial ('Simmons 65 Hun 612, 20 NTS 508); moving party can- not procure attendance at trial of party to be examined and then elecit necessary! facts ('Lewinsohn Bros 6 AD 459, 39 NTS 570); reason to believe plaintiff whose ex-" amination sought will not be present and testify at trial, or any way in which plain- tiff can avoid full disclosure thereat ('Naab! 32 AD 478, 52 NTS 1094). False representations: on which action based made in letters and telegrams sought to be identified by examination (Reed 122 AD 795, 107 NTS 893). Favorable character: of testimony to be elecited, nothing to show ('Brichta 152 AD 832, 137 NTS 751). Fiduciary relation: between parties, facts peculiarly within knowledge of party to be examined technical rules relaxed (Draka 12 Mis 65, 33 NTS 177). Foreclosure of mortgage: on husband's land, wife defend on ground of collusion to cut 121 DEPOSITIONS TO BE USED WITHIN THE STATE r. 12a off her interest, show ill terms between husband and wife, cruel treatment, failure to provide properly and attempt to cut off dower (Howe 62 Hun 240, 16 NYS 736). Porelgn witness: on whom plaintiff might rely resident of country afflicted with political and internecine strife, other rea- sons for non-attendance or taking testi- mony by commission, examination of de- fendant sought (Obregon 35 Mis 850, 72 NYS 1121). Formal proof: only required and already available (*Cherbuliez 123 AD 814, 108 NYS 321). Frame complaint: impracticable unless dis- covery had (Oppenheim 160 NYS 438); possible without ('Boyle 96 Mis 578, 161 NYS 991). rrauduleut conveyance: suit by trustee in bankruptcy to set aside, allege secret agree- ment and conspiracy (Ewen 155 AD 885, 139 NYS 1054). General: allegations (♦Bamberger 181 AD 805, 169 NYS 227); averment ('Butler 39 Mis 235 79 NYS 419); denial would put in Issue all matters as to which examination sought before answer (*Golin 28 StR 213, 8 NTS 12). Oood cause of action stated: examination sought to frame complaint (•DeMartini 176 AD 541, 163 NYS 484). Kypotbesis: party to be examined may die before trial or be absent from trial ('Seg- schneider 134 AD 217, 118 NYS 1000). Ignorance: of defendant seeking examina- tion of how accident causing injury sued for occurred and inability to procure any witness other than plaintiff (Koplin 123 AD 327, 108 NYS 602). IfiTnorant of details: of transactions com- plained of, moving plaintiff is, examination to frame complaint (Frothinghara 9 CivP 304). Immaterial aAlegations: of complaint denied by defendant to be examined ('Cook 90 Mis 34, 152 NYS 465). Incidental issue: arising only if main issue determined favorably to party seeking ex- amination (*Danziger 68 Mis 452, 124 NYS 177). mdispenslMe: evidence need not be (Terry 180 AD 714, 167 NYS 747: Koplin 123 AD 327, 108 NYS 602). Inference: ('Feuchtwanger 52 Hun 611, 5 NYS 129); fairly and clearly deducible from all papers before court on motion (Rosen- baum 36 Mis 410, 73 NYS 714). Information and beUef : basis of statements, sources and grounds not stated (*Jiminez 21 AD 387, 47 NYS 557; 'Attorney-General 21 Mis 101, 47 NYS 20, afd 22 AD 285, 47 NYS 883; 'NY Press Club 12 .Mis 210. 34 NYS 24; 'Bronson 78 Hun 351, 29 NYS 112), affidavit made on knowledge but re- ferring to complaint made on information and belief ('Simmons 65 Hun 612, 20 NYS ■508); stated (Leach 34 AD 522, 54 NYS 550; Blatchford 24 AD 140, 48 NYS 783; Rosenbaum 36 Miis 410, 73 NYS 714). Information: freely furnished by person to be examined ('Harburger 167 AD 1, 152 NYS 272); necessary to frame complaint possessed by plaintiff, examination sought to frame complaint ('White 134 AD 948, 118 NYS 1057); not disclosed the basis CKornbluth 149 AD 108, 133 NYS 737). "Intends to use the deposition": on the trial ('Simmons 65 Hun 612, 20 NYS 508). . Interpleader: purpose to defeat claim of party examined ('Central Tr Co 183 AD 375, 170 NYS 767). Issue of fact: none ('Sprague 129 AD 365, 113 NYS 789). Knowledge: alleged in answer as to matters concerning which examination sought by defendant ('Connors 65 Mis 169, 119 NYS 513); and control of party to be examined, with respect to testimony sought exclu- sive (Grout 1 Mis 214, 20 NYS 881); of defendant to be examined greater than that of plaintiff (Skinner 88 Hun 307, 34 NTS 748); of facts possessed by, defendant to be examined and not by plaintiff (Savage 8 AD 316, 40 NYS 946), plaintiff seeking discovery to frame complaint ('Sloboder 74 Mis 198, 131 NYS 1003); of moving party probable by reason of nature of controversy ('Jenkins 106 NY 272); of necessary facts, peculiarly possessed by party to be examined (Sayre 70 AD 329, 75 NYS 286), possessed by plaintiff, examination sought to frame complaint ('LaGrave 132 AD 108, 116 NYS 465); of party seeking discovery apparent ('Van Rensselaer 167 NYS 2), from nature olf case and transactions in-<' volved ('Western 48 Hun 320 1 NYS 412); of party to be examined exclusive (Korn- bluth 149 AD 108, 133 NYS 737; Gee 87, AD 157, 84 NYS 32); of person to be ex- amined must be shown (Segschneider 134 AD 217, 118 NYS 1000); of plaintiff suffi- cient, examination sought to frame com- plaint ('Thompson 134 AD 614, 119 NYS 331; 'Rosenthal 125 AD 895, 110 NYS 786; 'Butler 39 Mis 235, 79 NYS 419; 'Elmes 39 Mis 244, 79 NYS 425); of witness must appear (Thompson 135 AD 57, 119 NYS 742); peculiar to person to be examined,' must be alleged (McCoon 60 How 149); specially possessed by party to be ex- amined, moving party without, no other source of information available (Clark 75 Hun 290, 27 NYS 43). Iiaclc of information: intelligently to frame complaint, cause of action shown (Mendel- son 155 AD 892, 139 NYS 1052). Iiack of knowledge: of transactions in ques- tion, defendant examine officer of plaintift? corporation (Farmers Nat Bk 6 AD 373, 39 NYS 596); on part of moving party, ad- versary has knowledge but refuses to dis- close (Jerrells 25 AD 348, 49 NYS 597). Uabllity: of defendant sought to be ex- amined, evidence sought not tend to prove ("Lesan Advertising Agency 93 Mis 516, 157 NYS 304). £ibel action: defendant seek to examine plaintiff to frame answer pleading truth as justification, moving; papers show necessary information available from othen source ('Strakosch 63 Hun 503, 6 NYS 246); specific acts of misconduct on issue of bad reputation tor chastity ('Oakes 119 AD 358, 104 NYS 244). life insurance: action by assignee of policy, defendant examine plaintiff to frame an- swer claiming policy obtained by fraud and medical of person other than insured (Farmer 73 Hun 522, 26 NYS 126). ISaterial: deemed necessary (Bradbury 161 NYS 685). Uental capacity: of testator, contestant of will examine attesting witnesses ('Tyme- Bon 186 NYS 659); proponent of will, at- testing witnesses available ('Oakley 113 Mis 135, 184 NYS 106; 'Tymeson 186 NYS 659). Municipal corporation: examination of offi- cers sought, no showing that applicant not a taxpaper and as such entitled to in- spect records ('Uvalde Asphalt Paving Co 149 AD 491, 134 NY 50). Necessary facts: for complaint for account- ing alleged in affidavit for examination to frame complaint ('Gardner 124 AD 654, 109' NYS 95). " Needful "; sense in which word necessary sued (Terry 180 AD 714, 167 NYS 747). No other means: of ascertaining facts to be pleaded in setting up defense of usury save by examination of plaintiff (Fox 20 AD 333. 46 NYS 837). Nonresidence : of plaintiff sought to be ex- amined, foreign country (Rudert 1 Mis 7. 20 NYS 614). Note: action on, plaintiff examine defendant as to defense of usury in transfer of note by defendant to person from whom plaintifD received note ('Fourth Nat Bk 29 Hun 441). Otber: means of proof available (Terry 180' r. 122 OLEVENGMR'S RULES OF OIYIL PRACTICE 122 ^ 714, 167 NTS 747); proof available (Eckman 178 AD 720, 165 NTS 145); sources SL V "*°''P^*'°" available ('Nott 20 WkD 274); witnesses available (Tisdale Lum- ?fj 9?> \M 4R 55' 131 NYS 683; Niehoff \li -^P„*J^' 11* NYS 247; Kaminer 72 Mis 356, 130 NYS 138; Mithertz 64 Mis 460, 11» NYS 610), examination of party sought (Cherbuliez 123 AD 814, 108 NYS 321). Papers: necessary to be examined to frame answer not on file tho moving party has access to what purports to be copy (Lewi- aohn Bros 6 AD 469, 3!> NYS 570). Vaxixayi at trial, moving party "convinced" that party to be examined would commit (•Fiske 9 AD 208, 41 NYS 176). Personal Injnry: defendant deny allegation that he Is proprietor of mill where injury occurred, state examination of defendant sought to prove what interest he has in such mill and whether said mill a corpora- tion or co-partnership (Sweeney 24 Hun 162). Posiession: of decedent's property, under claim of ownership, by defendant whom administrator seeks to examine in action to recover same (Butler 31 AD 281, 52 NYS 756). Positive alleg'ations: required (Feichtwan- ger 52 Hun 611, 5 NYS 129). PreTlons examination: of defendant in sup- plementary proceedings does not negative necessity (Watts 17 NYS 647). Kefnsal to disclose: facts within knowledge and necessary to frame complaint, defend- ant to be examined (Dreyfus 31 AD 628, 55 NYS 6). Belatiouship: of parties to be examined to, testator whose will attacked for mental in- capacity, brother and sister ("Wallace 143 AD 211, 128 NYS 130). Kelevancy: must be shown (Bergstrom 138 AD 178, 123 NYS 29). Representative capacity: plaintiff prosecut- ing in, bill of particulars ordered (Chitten- den 132 AD 169, 116 NYS 829). Residence: of plaintiff 3000 miles away, claim small, plaintiff cannot attend trial and may lose claim unless defendant's tes- timony obtained (Lyon 80 Mis 642, 141 NYS 851). Sale: action for price of goods, defense goods not as represented and warranted, goods packed so as to be incapable of in- ternal examination when delivered to de- fendant, defects discovered at mill to which defendant sent them, goods attached and in possession of sheriff in behalf of plain- tiff, examine plaintiff as to contents of unopened bales and fraudulent packing and arrangement (Sprague 22 Hun 502). Saving of time: which otherwise would be consumed in trial court (Eckman 178 AD 720, 165 NYS 145). Separation action: and counterclaim for ab- solute divorce evidence bearing on amount of permanent alimony (»Ha£e 132 AD 338, 116 NYS 1100); disclosure of financial con- dition of husband (*Van Valkenburgh 149 AD 482, 133 NYS 942). Services: advice, and use of office furnished, action for, examination as to profits on sale of stock made without plaintiff's knowledge (•Ehrich 122 AD 719, 107 NYS 846); ren- dered, action for, employment to render such services (Moriarta 54 Mis 271, 106 NYS 973). Several purposes alleged: frame complaint, prepare for trial, and prosecute action, im- properly mixed in same application ('Die- fendorf 125 AD 651, 110 NYS 68). Stipnlatiou: admitting fact to be proved C^Kessler 169 AD 814, 155 NYS 799); party to be examined attend trial ('Lowenthal 20 Mis 420, 45 NYS 1031). Stock exchange: action to restrain enforce- ment of expulsion, examination of presi- dent sought to frame complaint, allege evidence and statements as to charges re- ceived in absence of plaintiff, some charges sustained and others dismissed, but unable to ascertain which sustained, informed resolution of expulsion did not receive requisite vote (Hutchinson 29 Hun 450). Sumclent: facts alleged, examination sought to frame complaint, defendant, selling agent for plaintiff, in violation of duty, sold goods, made fraudulent returns and converted proceeds (*Kessler 7 AD 142, 40 NYS 271); information to frame answer possessed by defendant seeking to examine plaintiff for such purpose ("Sithman 168 AD 826, 154 NYS 449); knowledge shown by moving papers, discovery sought to frame answer ('Loughlin 146 AD 434, 131 NYS 176). Surmise: basis of statements ('Morris 19 WkD 375). Trial: probable inability to obtain testimony at must appear, examination of party sought (Britton 3 Mis 514, 23 NYS 350). Undue influence: of testator, contestant of will examine attesting witnesses (Tymeson 186 NYS 659); proponent of will, all facts can be elicited at trial ('Oakley 113 Mis 135, 184 NYS 106; 'Tymeson 186 NYS 659). 'Vague allegations: ('Bamberger 181 AD 805, 169 NYS 227). 'Wrongful discharge: defendant examine plaintiff as to amount earned during con- tract period ('Pfeifer 163 NYS 577); au- thority of person with whom contract of employment made ('Pfeifer 163 NYS 577). SHO'wiNG' utteittion to ttse seposi. TION AT TRIAI^ ITECESSABY — Affirmative defense: plaintiff seek to exam- ine defendant as to (Tuthlll 141 AD 520, 126 NYS 409). Prame complaint: purpose of examination (•Brisbane 20 Hun 48). Physical examination: of plaintiff in per- sonal injury action (*Moses Co 91 Hun 271, 36 NYS 149). Pleading by moving party prior to; applica- tion for discovery (Oppenheimer 151 AD 601, 136 NYS 197; Hagerty 138 AD 905, 122 NYS 843; Mayer 134 AD 961, 119 NYS 512; Bock 130 AD 229, 114 NYS 473; Caldwell 128 AD 315. 112 NYS 655; Tenoza 50 AD 581, 64 NYS 99; Deary 15 AD 397. 44 NYS 82; Ketcham 71 Mis 439, 128 NYS 695, Williams 52 Hun 68, 5 NYS 211; Chapin 16 Hun 53; Van Ray 66 How 269; 'McCoon 60 How 149). SHO'WING' INTENTION' TO USE DEPOSI- TION AT TSIAIi SUPPICIENT — Admissibility: of evidence to be elicited must be shown (Lawson 140 AD 297, 125 NYS 261). Believes: examination and testimony of de- fendant " both material and necessary to the plaintiff for the prosecution of thia action and the trial thereof " (Fogg 30 Hun 61). Cannot safely proceed: to trial without tes- timony of defendant as to fact essential to right of action and within peculiar knowledge of defendant CVan Ray 66 How 269). Defense of action: examination necessary to (*Ketcham 71 Mis 439. 128 NYS 695). Direct statement: preferable but not essen- tial (Fogg 30 Hun 61). Express allegation: not necessary (Oppen- heimer 151 AD 601, 136 NYS 197). Pacts: must be presented (Lawson 140 AD 297, 125 NYS 261). Fairly appears: tho not expressly stated (Ehrich 52 Mis 641, 103 NYS 1023). Inference: clear from statements made (Fogg 30 Hun 61); fairly to be drawn from statements (Ball 12 CivP 4); neces- sary from facts alleged and statements made (StClair Paper Mfg Co 16 AD 317. 44 NYS 625; Jacobs 45 Mis 56, 90 NYS 824). Intendment: necessary (Rudert 1 Mis 7, 20 NYS 614). Maintain defense: and prove allegations ot answer stated to be object of defendant 123 DEPOSITIONS TO BE USED WITHIN THE STATE r. 12S seeking to examine plaintiff (Ball 12 CivP 4). Necessary: to enable defendant to prepare for trial and for defense of the action on the trial, no knowledge as to facts sought (•Leary 15 AD 397, 44 NYS 82). Preparation, to defend impossl'ble: without examination of plaintiff (*Ketcham 71 Mis 439, 128 NYS 695). Prepare and o1}taiu other evidence: to meet the defense ("Cook 130 AD 229, 114 NYS 473). Prepare for trial: necessary for (*Hagerty 138 AD 905, 122 NYS 843). "Preserve and use such testimony": (<'Bock 130 AD 229, 114 NYS 473) "Properly prepare for trial": ('Bock 130 AD 229, 114 NYS 473). Purpose not sbown: unless it be to show that plaintiff to be examined has no cause of action ('Rogers 137 AD 197, 121 NYS 941). Qualification of intention: unless of char- acter very different from that expected (Oppenheimer 161 AD 601, 136 NYS 197). Show whole intention: to obtain material evidence (Oppenheimer 151 AD 601, 136 NYS 197). Testimony: desired for use on trial, no statement that will be offered or read (•McMahon 20 WkD 404); "of the said defendant is taken for the purpose of being read by and on the part of the plaintiff on the trial of this action" ('Kugelman 17 Mis 30, 40 NYS 767). ORDER PBOPERI^y MADE BV — County jud^e: action in superior city court (Pratt 10 Mis 445, 31 NYS 465); power same as justice of supreme court (Cor- bett 16 Hun 241). Court: (*Heishon 77 NY 278 prior rule; •Wiechers 38 AD 1, 56 NYS 235 prior rule). Jndg'e: (Heishon 77 NY 278 prior rule; Wiechers 38 AD 1, 56 NYS 235 prior rule). Recorder: of City of Watertown (Babcock 3 HowNS 260). ORDER FOR EXAMINATIOIT PROPERI^T CrRANTED — Accessibility: of defendant to be examined as witness at trial, no reason to doubt suggested ('Williams 64 Hun 308, 7 NYS 568). Affidavit not presented: ('Loewy 129 AD 459, 114 NYS 211; *Upson 103 AD 381, 92 NYS 1099). Annoyance: of adversary apparent object (•Bender 52 Mis 295, 102 NYS 152). Attend trial: party or witness to be exam- ined will (Bender 52 Mis 295, 102 NYS 152). Attendance at trial: can be compelled b^ subpoena (Tisdale Lumber Co 147 AD 55, 131 NYS 683). Bill of particulars demanded: by party seek- ing examination (Tisdale Lumber Co 147 AD 55, 131 NYS 683). Cause of action: not shown by applicant, no action pending (*Boyd 137 AD 937, 122 NYS 263). Corporation party: fail to name officer to be examined (*Turk 144 AD 53, 128 NYS 809). Delay: apparent object ("Bender 52 Mis 295, 102 NYS 152). Denial: in pleading by party to be exam- ined (Kornbluth 149 AD 108, 133 NTS 737), does not preclude order (Schweinler 169 AD 819, 154 NYS 456); of allegati.oyis of complaint (Heine 82 Mis 402, 143 NYS 752, as to which examination sought (♦Brucate 159 NYS 645); of facts as to which examination sought (Plohn 76 Mis 252, 134 NYS 947); of knowledge by party to be examined (Davis 37 Hun 531). Discretionary: (Terry 180 AD 714, 167 NYS 747; Schweinberg 131 AD 795, 116 NYS 318; Behl 102 Mis 623, 169 NYS 179; Jenkins 8 StR 710; Bradbury 161 NYS 685); appellate court will not interfere with discretion exercised by granting order on proper showing (Sayre 70 AD 329, 75 NYS 286); exercise of discretion is ir determining materiality and necessitj (Kelly 21 NYS 190); matters to which diS' cretion extends, determination as to ma^ teriality and necessity and as to intent t( annoy or delay (Watts 17 NYS 647); partj to be examined (Jenkins 106 NY 272; Wit liams 52 Hun 68, 5 NYS 211; Wahle 2 Mis 343, 21 NYS 1012, afg 20 NYS 372; Groul 1 Mis 214, 20 NYS 881; Skinner 88 Hur 307, 34 NTS 748; Douglas 21 NYS 1091 Dorf 18 NYS 434) at his own instance (McVity 13 NTS 914); to some extent, the language of statute mandatory, examina- tion of party sought (Bender 52 Mis 295 102 NYS 152); witness not a party (Mor iarta 54 Mis 271, 105 NYS 973). Doubt as to necessity: of inquiry (Kirchei 93 Mis 130, 166 NYS 1101). DoubtfU)! case: relevancy and admissibilitj left for determination at trial (Bergstron 138 AD 178, 123 NYS 29). Existence of agreement: to be proved nol alleged, merely allege desire to prove exist- ence ('Kirkland 11 AbNC 421). Fiduciary relation: between parties, facts peculiarly within knowledge of party tc be examined (Whitman 58 AD 92, 68 NYE 651). Pishlngr excursion: ('Terry 180 AD 714, 161 NYS 747). Former order vacated: no leave to renew (Regan 129 AD 315, 113 NYS 738). Framing' complaint: possible without (•Boyle 96 Mis 578, 161 NYS 991). General denial: not preclude examination ol defendant (Bradbury 161 NYS 685). O-ood faith: apparent (Kornbluth 149 AE 108, 133 NYS 737). Importance of testimony; for purpose sought possible, nothing to indicate bad faith in application (Pratt 10 Mis 445, 31 NYS 465). Incriminating testimony called for: (Peter- son 143 AD 282, 128 NYS 505; Bioren 14(1 AD 523. 125 N.YS 392; Niehoff 134 AD 473, 119 NYS 247); all facts of such character (•Abbott-Downing Co 87 Hun 299, 34 NYS 433; *Y'"amato Trad Co 27 Hun 248; *Kinney 26 Hun 166; •Roberts 57 Supr 526, 8 NYS 870; *Ball 12 CivP 4); all material matters of such character (•Kugelman 17 Mis 30, 40 NYS 767); part only incriminating (Bioren 140 AD 523, 125 NYS 392; Skinnet 88 Hun 307. 34 NTS 748; Davenport Glu- cose Mfg Co 33 Hun 32; Fogg 30 Hun 61; Sprague 22 Hun 502; Ball 12 CivP 4; Greisman 4 CivP 32); question of privilege properly raised on examination and not by objection to order (Niehoff 134 AD 473, 119 NYS 247; Ely 127 AD 823, 112 NYS 122, rvg -57 Mis 361, 108 NYS 613; Solar Baking Powder Co 128 AD 550, 112 NYS 1013; Meade 119 AD 761, 104 NYS 523; Sayre 70 AD 329, 75 NTS 286; Ryan 46 AD 590, 62 NYS 39; Campbell 38 AD 137, 56 NYS 640; Reynolds 81 Mis 362, 142 NYS 1; Rosenbaura 36 Mis 410, 73 NYS 714; Abbott-Downing Co 87 Hun 299, 34 NYS 433; Davenport Glucose Mfg Co 33 Hun 32; Fogg 30 Hun 61; Sprague 22 Hun 502- Ball 12 CivP 4; Greisman 4 CivP 32; Judah 12 StR 130). Information and belief basis of statements! customer seek disclosure from broker (Tal- bot 16 Daly 174, 9 N i S 478); sources and grounds not shown, examination to frame complaint sought (*MitcheU 124 AD 325 108 NYS 963). Justice: cause of advanced by examination (Bradbury 161 NYS 685). Knowledge of moving party: apparent CDyett 13 CivP 127); not negatived (•Wil- liams 52 Hun 68, 5 NYS 211); personal (Skidelsky 155 NYS 616); sufficient to frame answer ('Waitzfelder 120 AD 144 104 NYS 796); sufficient to frame com-^ plaint ('Fisher 128 AD 268, 112 NYS 668- •Sloboder 74 Mis 198, 131 NYS 1003) ' Xnowledg'e of party to be examined: exclu- r. 122 OLEVENGEB'S RULES OF CIVIL PRACTICE 124 sive (Tanenbaum 89 AD 17, 85 NYS 122); peculiar (Continental Securities Co 147 AD 118, 131 NYS 713). lack of knowledg'e: shown by opposing affi- davit (*Ryan 46 AD 590, 62 NYS 39). Matter of rlg'lit: (Mithertz 64 Mis 460, 118 NYS 610); action pending (Regan 129 AD 315, 113 NYS 738); additional requirements cannot be insisted on where moving papers comply with statute and rule (Tisdale Lumber Co 147 AD 55, 131 NYS 683); affi- davit sufficient (Sweeney 24 Hun 162); applicant bring himself within require- ments (Oppenheimer 151 AD 601, 136 NYS 197); compliance with requirements (Loewy 129 AD 459, 114 NYS 211; Gerney 91 Mis 493, 155 NYS 288; Strodl 63 Mis 54, 116 NYS 570; Greenbaum 181 NYS 738); facts and circumstances sufficient (Greer 15 Hun 432); fail to satisfy judicial mind ('Greer 15 Hun 432); materiality and necessity apparent, no indication of bad faith (Kelly 21 NYS 190); jiarty to be examined (Davis 37 Hun 531), requirements com- plied with (Davis Machine Co 42 Mis 52, 85 NYS 574), additional requirements can- not be set up (Shonts 116 AD 854, 102 NYS 324), no bad faith or abuse of process (Kop- lin 123 AD 327, 108 NYS 602), no sugges- tion of bad faith or ulterior purpose (Mar- jori 56 Mis 435, 107 NYS 197); proper showing made by moving party (Watts 17 NYS 647); purpose and good faith of ap- plication may be investigated (Chapin 16 Hun 53). Slodem tendency: is to enlarge power of court (Cook 90 Mis 34, 152 NYS 465). Nonresiclent to be examined: no proof of ability of applicant to serve order within state CWitcher 59 Supr 224, 14 NYS 290). Objection: that is to annoy and harass, ma- teriality and necessity apparent, examina- tion may be kept within proper bounds (Dorf 18 NYS 434). Other: means of proof available to moving' party (•Tannenbaum 54 AD 188, 66 NYS 375); proof readily obtainable by party seeking examination of adversary ('Tanen- baum 89 AD 17, 85 NYS 122); sources of information available (Scherick 91 Mis 484, 155 NYS 617; *Nott 20 WkD 274; Skidelsky 155 NYS 616); witnesses avail- able (Tisdale Lumber Co 147 AD 55, 131 NYS 683; NiehofE 134 AD 473, 119 NYS 247; Goldmark 111 AD 527, 97 NYS 1078;, Kaminer 72 Mis 356, 130 NYS 138; Mith- ertz 64 Mis 460, 118 NYS 610), examina- tion of party sought (Meade 119 AD 761, 104 NYS 523). Partners: action to hold defendants liable as, denial of partnership and liability (Ol- ney 37 Hun 286). Public records: show information sought (•Muldoon 98 AD 169, 91 NYS 65). Besidence: of plaintiff 3000 miles away, claim small and may be lost unless defend-i ant's testimony obtained (Lyon 80 Mis 642, 141 NYS 851). Several persons: some parties and some not, same order direct examination ('Diefen- dorf 125 AD 651, 110 NYS 68). Second examination: no new facts requiring' reexamination shown ('Dambmann 15 Hun 495). Settlemenit with plaintiff: alleged by defend- ant to be examined (Whitman 58 AD 92, 68 NYS 551). ShowluET of probable cause of action: and that examination necessary to frame com- plaint (O'Reilly 12 Hun 124). Stipulation: by party to be examined of existence of facts to which examination re- lates ('York 61 AD 620, 70 NYS 614); to appear at trial (Goldmark 111 AD 526, 97" NYS 1078; Mithertz 64 Mis 460, 118 NYS 610); to attend trial and testify, willing to give (Tisdale Lumber Co 147 AD 55, 131 NYS 683); to produce all books and papers at trial, not deprive plalntift of right to examine defendant, action for fraudulent conspiracy to sell stock at ficti- tious value (Kellogg 168 AD 671, 154 NYS 359). Subpoena would compel: attendance at trial (Meade 119 AD 761, 104 NYS 523; Gold- mark 111 AD 526, 97 NYS 1078; Mithertz 64 Mis 460, 118 NYS 610). Substantial compliance: with requirements (Behl 102 Mis 623, 169 NYS 179). Tedmlcalities: should not prevent (Cher- bullez 123 AD 814, 108 NYS 321; Van Rensselaer 167 NYS 2), application in good faith (Crum 82 Mis 419, 143 NYS 1080). Technically sufficient movinjr papers: and prescribed essentials exist (Bradbury 161 NYS 685). Tort action: purpose to ascertain what per- sons should be joined as codefendants' (♦Hinds 52 Mis 461, 102 NYS 484). Trial: examination at serve all purposes of examination before (•Williams 54 Hun 308, 7 NYS 568); officers of corporation party to be examined intend to be present at (Press Publishing Co 33 AD 242, 53 NYS 371). Two persons: one a party and the other not, same order direct examination of both (♦Chartered Bank of India Australia & China 136 AD 646, 121 NYS 399). Ulterior motive: apparent (♦Kornbluth 149 AD 108, 133 NYS 737); possibility of ob- vious (♦Wessel 144 AD 587, 129 NYS 521). PERSON' TO BE EXAMINED PBOPEBIiY DESIONATED IK OBEER — Corporation: information to be elicited from designated officers (Educational Films Corp 192 AD 621, 183 NYS 113). President: of corporation party (•Educa- tional Films Corp 192 AD 621, 183 NYS 113). SCOPE OP EXAMINATIOIT PBOPEB^'Z' SFECIPIED IN OBDEB — Accounting: action for, permit examination as to measure of defendant's accountability (♦Vejarano 165 AD 246, 150 NYS 778); between original architects and associated architects, facts and circumstances lead- ing up to and attendant on cancellation of contract between owner and original arch- itects and making of new agreement with associated architects (Stern 161 AD 536, 146 NYS 591). Affidavits on which order granted: matters stated in, too broad (♦Skolny 132 AD 680, 117 NYS 297). Affinnative cause of action of defense: need not limit to (Bradbury 161 NYS 685). AiUef^ation of complaint: on which trial had and dismissal or direction of verdict avoided by obtaining leave to move to amend (*Anderson 140 AD 301, 125 NYS 81); put in issue by answer (Skolny 132 AD 680, 117 NYS 297); with respect to pro- duction or threatened production of play whose production sought to be enjoined examination of defendant (Nillson 125 NYS 261). Cross-exaonination: by counsel of party ex- amined (Murray 167 NYS 662). Directly: should be (Bamberger 181 AD 805, 169 NYS 227). " Issue in this action": several issues, to only one of which testimony shown to be material and necessary (•Marjori 56 Mis 435, 107 NYS 197). ■'Issues in this action"; (*Bamberger 181 AD 805, 169 NYS 227). " Matters set forth in the annexed affi- davit ": (•Bamberger 181 AD 805, 169 NYS 227). Particular subjects: should be limited to (Eckman 178 AD 720, 165 NYS 145). Special work; carried on when injury sued for occurred, issue as to whether carried on by independent contractor, limitation to (♦Berg 146 AD 412, 131 NYS 262). Stockholder's action: to compel directors to account, limited to plaintiff's status as stockholder (•Eckman 178 AD 720. 165 NYS 145). 125 DEPOSITIONS TO BE USED WITHIN TBS STATE r. 122 ORDER rOB EZAMINATIOIT AFFEAI^- ABU: — Court ordered: examination, power to order same in judge only (Heishon 77 NY 278). Discretion exercised: on proper papers not ■ reviewable (Glenney 64 NY 120). Ex parte order: remedy is by motion to set aside (•Campbell 38 AD 137, 56 NYS 540). Sulistantial rieht Involved: (BerdeU- 86 NT 519). Vacation of order: not reviewable by Court of Appeals ('Jenkins 8 StR 710). WHO MAV mOVE TO VACATE ORDEB — Party to be examined: after requesting ad- journments and stipulating that examina- tion take place at specified time and place (•Schweinburg 131 AD 795, 116 NYS 318). ADDITIOITAIi AFFIDAVITS FEBIVIITTED IN OFFOSITION TO MOTION TO VA- CATE— Rebut charere of bad faith: in seeking: ex- amination (Boskowitz 121 AD 878, 106 NYS 865). Supply defectlB and omissions: in affidavit on which examination ordered ('Boskowitz 121 AD 878, 106 NYS 865). Sustain allegations: in papers on which ex- amination ordered (Boskowitz 121 AD 878, 106 NYS ^5). VACATION OF ORDER FROFEB — Affidavit: insufficient (Chapin 16 Hun 53); shov/ more than necessary ('Trotter 29 Mis 662, 61 NYS 181). Commission: testimony of nonresident wit- ness can be taken by (*Klaw 151 AD 720, 136 NYS 224). Default: when motion to vacate called doe^ not require vacation (Smith 76 Mis 254, 134 NYS 901). Denial of: ability to' furnish information sought (*Nolan 70 Hun 536, 24 NYS 238); knowledge by party to be examined ('Torch 53 Mis 110. 103 NYS 1095). Discontinuance: as to original plaintiff after another plaintiff joined, and after order for examination of defendant made but before examination held ('Leighton 169 AD 553, 155 NYS 444). Discretionary: (Jenkins 106 NY 272; Doug- lass 21 NYS 1091). Fishing' excursion: (Chapin 16 Hun 53). Full d&closnre: in moving affidavit (Berger 81 Mis 360, 142 NYS 2). Q-ood faith: lacking (Chapin 16 Hun 53). Ground: action brought does not lie, com- plaint not frivolous ('Ryan 46 AD 590, 62 NYS 39). Incriminating evidence called for; ground of vacation, evidence relate to unauthorized withdrawal of firm funds by partner, not a criminal oifense ('Davies 35 Hun 431); no claim of privilege by person to be ex- amined, motion to vacate by corporation defendant ('Kellogg 168 AD 671, 154 NYS 359); privilege claimed by person to be examined (Kellogg 168 AD 671, 154- NYS 359). lutentioai to return; to state, nonresident witness ('Klaw 151 AD 720, 136 NYS 224). Knotrledge: denied ('Klaw 151 AD 720, 13B NYS 224); of party obtaining order, per- sonal CSkidelsky 155 NYS 616). Moving papers fall; to state facts as to previous application, irregularity merely (•Skinner 88 Hun 307, 34 NYS 748). Names; of adversary's witnesses, purpose to discover (Chapin 16 Hun 53). Other; sources of information available (•Scherick 91 Mis 484, 155 NYS 617; 'Ski- delsky 155 NYS 616); witnesses available CKaminer 72 Mis 356, 130 N-YS 138). Fositive denial: in affidavit on motion to vacate of manufacturing or selling any goods during period as to which discovery as to goods manufactured and sold sought (Maitland 13 Mis 324, 34 NYS 464). Presumed: that allegations in moving papers true where motion to vacate on such papers (Butler 39 Mis 235, 79 NY-S 419). Special term; has ^>ower to vacate (Chapin 16 Hun 53). Too broad: motion: should be to limit exam- ination (•Anderson 130 AD 134, 114 NYS 348). 'Whereabouts of 'witness ascertainable: from time to time, examination gran-ted because about to depart ('Stapleton 124 AD 661, 109 NYS 446). SUBJECT OF EXAMINATION PROPER — Accord and satisfaction; plaintifE examine defendant as to affirmative defense of (•Tuthill 141 AD 520, 126 NYS 409). Accounting; action for issues involving right to accounting (Vejarano 165 AD 246, 150 NYS 778); issues which may arise only if right to accounting established ('Vejarano 165 AD 246, 150 NYS 778). Accounts between parties: action to set aside alleged abandonment of insurance policy, consent to change of beneficiary, aaid assignment (Vejarano 165 AD 246, 150 NYS 778). Acq.ulsitlon of assets: of corporation in- debted to plaintiff by defendant officers, examination sought to frame complaint (Thompson 134 AD 614, 119 NYS 331). Adultery: of defendant examined, unless privilege claimed (Reynolds 81 Mis 362, 142 NYS 1). Advantage, secured -by fiduciary: through dealings with trust property (Weidenfeld 41 Mis 439, 84 NYS 1084). Affirmative case of party: examined ('Ve- jarano 165 AD 246, 150 NYS 778); seeking examination (Vejarano 165 AD 246, 150 NYS- 778). Affirmative defense: defendant examine plaintiff as to (Poole 144 AD 155, 128 NYS 751); plaintiff examine defendant as to (Empire Cream Separator Co 164 AD 223, 149 NYS 649; 'PvNatural Carbonic Gas Co 140 AD 802, 125 NYS- 610), power to permit to be exercised with discretion (Tuthill 141 AD 520, 126 NYS 409). Agency: of person for defendant sought to be examined (Brucato 159 NYS 645). Agreement: involved in controversy, terms and conditions of (Del Genovese 149 AD 266, 133 NYS 765); sued on, whether written or oral, defendant examine plaintiff (Reu- sens 136 AD 653, 121 NYS 353); under which corporate directors mismanaging corpora- tion to own ad-vantage, exact terms of, ex- amination to frame complaint in stockhold- er's action ('Elmes 39 Mis 244, 79 NYS 425). Alimony; permanent, amount of, separation action; and' counterclaim for absolute di- vorce main issue not tried ('Haff 132 AD 338, 116 NYS 1100). Amount; due from defendant to plaintiff, ex- amination sought before complaint (•Brick 128 AD 264, 112 NYS' 642); of damages sus- tained by defendant, action for unfair com- petition and accounting ('Solar Baking Powder Co 128 AD 550, 112 NYS 1013); of stock of merchandise carried, action for breach of contract to carry fire insurance (Tanenbaum 89 AD 17, 85 NYS 122); proper to be, claimed in complaint, approximate statement without examination impossible (Boeck 85 AD 575, 83 NYS 426), possible (•Boeck 85 AD 575, 83 NYS 426). Antenuptial acts: of plaintiff, separation ac- tion ('Gould 125 AD 375, 109 NYS 910). Assumption: by corporation defendant of contract obligations of predecessor corpora- tion (Horst 1 AD 629, 37 NYS 3). Authority: from plaintiff for publication of alleged libel (Connors- 65 Mis 169, 119 NYS 513); of railroad to operate on street, evi- dence contained in statutes, ordinances, and public records (•Muldoon 98 AD 169, 91 NTS 65); to negotiate contract for corpora- tion (Chapman 149 AD 52, 133 NTS 625). Bona flde holdier; whether plaintiff suing on note is (Koppel 50 Mis 626, 98 NTS 619), defendant examine plaintiff, defense that delivery was without consideration and on r. 122 CLEVENGER'8 RULES OF CIVIL PRACTICE 126 ■promise not to negotiate (Kramer 70 AD 615. 74 NYS 1049). Burden of proof on party: seeking discovery (Ernst 149 AD 280. 132 NYS 11; Peterson 143 AD 282. 128 NYS 505); whose examina- tion sought ('Central Tr Co 183 AD 375, 170 NYS 767; 'Kessler 169 AD 814, 155 NYS 799; •Bejarano 165 AD 246, 150 NYS 778; •Sied'e 148 AD 864, 133 NYS 623; •Weeks 146 AD 621, 131 NYS 408; 'PyNat- ural Carbonic Gas Co 140 AD 802, 125 NYS 510; 'Kircher 93 Mis 130, 156 NYS 1101; •Plohn 76 Mis 252, 134 NYS 947; *Sutro 155 NYS 103). Cablegrram: change in draft of by defendant, constituting breach of trust as corporate ofBcer (Beer Importing Cb 136 AD 649, 121 NYS 342). Cancellation: of contract sued on (Schwein- berg 131 AD 795, 116 NYS 318). Cause of accident: resulting in injury sued for ('Boyle 96 Mis 578, 161 NYS 901). ex- amination of plaintiff sought ('Kessler 169 AD 814. 155 NYS 799). Circumstances: of default out of which lia- bility sued on arose, pla.intiff examine de- fendant to frame complaint ('Thompson 134 AD 614, 119 NYS 331). Completion of building': on account of con- tractors after their default (Tisdale Lum- ber Co 147 AD 55, 131 NYS 683). Consen't: of plaintiff to publication of alleged libel (Connors 65 Mis 169. 119 NYS 513). Consideration: for note sued on (Presby 6 AD 600, 39 NYS 957); for transfer to de- fendant to be examined or note further negotiation of which is sought to be re- strained, lack of (Peterson 143 AD 282, 128 NYS 5K). Conspiracy to: defraud creditors, action to set aside conveyance as fraudulent (Ewen 155 AD 885. 139 NYS 1054); place fictitious value on property for purpose of sale (Kornbluth 149 AD 108. 133 NYS 737). Control: of defendant of hallways, stair- ways, etc., of tenement where personal In- jury sued for occurred, examination of defendant (Kessler 169 AD 814, 155 NYS 799). Cost of; completing building after default of contractors (Tisdale Lumber Co 147 AD 55. 131 NYS 683); production and distribu- tion of electricity, action for value of elec- tricity furnished, defendant examine plaln- tifC (NY Edison Co 13« AD 728, 118 NYS 238). Counterclaim.; of defendant to be examined (•Empire Cream Separator Co 164 AD 223, 149 NYS 649), facts peculiarly within his knowledge and unknown to plaintiff (Lyon 80 Mis 642. 141 NYS 861). Damaires: alleged in counterclaim, examine defendant as to items ('Sperry & Hutchin- son 135 AD 285, 120 NYS 362); amount of, examination to frame complaint ('Butler 39 Mis 235, 79 NYS 419); from nuisance sued' for, details of, defendant examine plaintiff (•Higgins 137 AD 823, 122 NYS 465); measure of, examination to frame complaint (•Elmes 39 Mis 244, 79 NYS 425); sued for, items and details, defendant examine plaintiff (•Hartog & Eeinhauer Co 124 AD 627. 109 NYS 113). Deceased person: transactions of person to be examined with, disclosure sought by ad- ministrator (Butler 31 AD 281, 52 NYS 756), Defenses; of defendant examined (•Sullivan 148 AD 246. 132 NYS 346). Delivery: of Insurance policy, action to set aside alleged abandon-ment. consent to change of beneficiary, and assignment (Ve- jarano 165 AD 246, 150 NYS 778). Dlsjyoeitlon of; assets of corporation in- debted to plaintiff, action apalnst ofBcers. examination sought to frame complaint (Thompson 134 AD 614. 119 NYS 331); moneys deposited with defendant as mar- gins on stock dealings (Leach 34 AD 622. 54 NYS 550). Execution: on behalf of corporation of con- tract sued on (Horst 1 AD 629, 37 NYS 3). Experiments; made by defendant to be ex- an>ined, action to restrain diversion and waste of mineral waters and gases ('PVNat- ural Carbonic Gas Co 140 AD 802, 125 NYS 510). False representations; as to o-wnersnip of goods sold for which mechanic's lien claimed, separate defense setting up such representations, examination of defendajit sought (•Caldwell 128 AD 315, 112 NTS 655). Piduciary: duties, -violation by defendant to be examined (Beer Importing Co 136 AD 649, 121 NYS 342); relation, existence (Wel- denfeld 41 Mis 439, 84 NYS 1084). Financial condition: of defendant in breach of promise to marry action, general denial and release pleaded (•Berger 81 Mis 360, 142 NYS 2). Fraud; inducing purchase of property (Korn- bluth 149 AD 108, 133 NYS 737); on cred- itors in conveyance by defendant to be ex- amined, testimony sought of incriminating nature (•Kugelman 17 Mis 30, 40 NYS 767). Goodwill: of partnership, nature and extent, action for dissolution and disposition of property (Bernheimer 59 AD 610, 69 NYS 659). Income of busband; defendant in divorce ac- tion, issued as to marriage and right to divorce undisposed of ('Danziger 68 Mis 452, 124 NYS 177); denying charges in divorce action (•Reynolds 81 Mis 362, 142 NYS 1). Independent contractor; whether work car- ried on by. personal injury action (Berg 146 AD 412, 131 NYS 262). Insane delusions: of testator, action to set aside probate (Wallace 143 AD 211, 128 NYS 130). Insurable interest: of plaintiff in life insur- ance policy sued on, examine •plaintiff as to (•Lawson 140 AD 297. 125 NYS 261). Interest: of defendant in personal injury action in mill where injury occurred (Sweeney 24 Hun 162). Investi{ration: as to cause of action under- taken by defendant (•Lewis 115 AD 735, 100 NYS 1052). Justification: for libel sued for, no complete defense interposed (•Connors 65 Mis 169, 119 NYS 513). Knowledge; of defendant to be examined, when he received note further negotiation of which is sought to be restrained that it had been given for specific purpose and di- verted (Peterson 143 AD 282, 128 NYS 505). betters: containing false representations on which action based, whether written by de- fendant (Reed 122 AD 795, 107 NYS 893); receipt (Smith 76 Mis 254. 134 NYS 901). Iioan: character of advance as. action to re- cover (Stevens 163 AD 543, 148 NYS 958). loss of anticipated profits: action therefor and to foreclose mechanic's lien (Cooper 164 AD 64, 149 NYS 433). Merchandise carried; amount and value, ac- tion for breach of contract to carry flre insurance (TS-nenbaum 89 AD 17. 85 NYS 122). Mitigation of damages: in libel action, cir- cumstances must have been known to and believed by defendant at time of publication (•Kinney 26 Hun 166). Money; receipt of (Smith 76 Mis 254, 134 NYS 901). IT ante of: physician attending plaintiff after accident sued for. plaintiff examine defend- ant (Douglass 21 NYS 1091); servants of defendant operating ele-vator causing injury sued for (Douglass 21 NTS 1091); sub- scribers to publication, to whom libel de- livered (Campbell 38 AD 137. B6 NYS 540); witnesses to accident sued for. plaintiff ex- amine defendant (Douglass 21 NYS 1091). ITecessary character; of articles furnished to wife for'which action brought against bus- 127 DEPOSITIONS TO BE USED WITHIN THE STATE r. 122 band, examination of liusband (Farquhar- son 67 Mis 277, 124 NYS 476). Ne^Usrence: of plaintifC suing for personal injury, examination of plaintiff sought (•Kessler 169 AD 814, 155 NYS 799). Not In issue: ('Reusens 136 AD 653, 121 NYS 353). Note sued on» circumstances of making and delivery, defendant examine plaintiff (NY Assets Realization Co 158 AD 700, 143 NYS 898). Notice: of defendant examined of defective condition of stairway on wliichi personal Injury sued for occurred (Kessler 169 AD 814, 155 NYS 799). Nuisance: -sued for, defendant examine plaln- tift as to items (•Higgins 137 AD 823, 122 NYS 465). Observations: made by defendant to be ex- amined, action to restrain diversion and waste of mineral waters and gases (PvNat- ural Carbonic Gas Co 14.0 AD 802, 125 NYS 510). Operation of: automobile causing injury sued for (Briohta 152 AD 832, 137 NYS 751); machinery or device causing injury sued for, by whom (Boyle 96 Mis 578, 161 NYS 991); mine at time of accident causing death sued for (Nolan 70 Hun 536, 24 NYS 238). Ownership of; elevator causing injury sued for (Douglass 21 NYS 1091); goods sold for which mechanic's lien claimed, separate de- fense denying ownership of plaintiff, ex- amination of defendant sought (*Caldwell 128 AD 315, 112 NYS 655); machinery or device causing injury sued for (Boyle 96 Mis 578, 161 NYS 991); mine at time of accident causing death sued for (Nolan 70 Hun 536, 24 NYS 238); newspaper in which libel published, examination sought before action brought ('Singer 40 Mis 561, 82 NYS 870); railroad train causing Injury sued for, also control (Wallace 30 AD 186, 51 NYS 760). Partnership: between defendants, plaintiffs bound to prove may examine defendant as to (Goldberg 5 CivP 96, 12 Daly 337). Payment: plaintiff examine defendant as to affirmative defense of, seek to ascertain how intend to prove (♦Tuthiil 141 AD 520, 126 NYS 409). Perjury: in verifying complaint, defendant examine plaintiff to prove (*Segshneider 134 AD 217, 118 NYS 1000). Pledgre: of insurance policy, action to set aside alleged abandonment-, consent to change of beneficiary and assignment (Ve- jarano 165 AD 246, 150 NYS 778). Possession: of books and papers relating to trust estate, action to reach income thereof and apply to judgment against beneficiary (Corn Exchange Bk 84 AD 194, 82 NYS 641). Professional communication; to witness as attorney, disclosure may be objected to (♦Merritt 27 AD 121, 50 NYS 113); physi- cian, order calling for disclosure properly refused ('Enright 26 AD 538, 50 NYS 609). Profits: of defendant's business, action for compensation fixed at percentage of profits (Oppenheimer 151 AD 601, 136 NYS 197); of joint adventure (York 61 AD 620, 70 NYS 614); on sales of stock made without plain- tiff's knowledge, action for services, advice. and use of office furnished (*Ehrich 122 AD 719, 107 NYS 846). Property: of husband, defendant in divorce action charges denied ('Reynolds 81 Mis 362, 142 NYS 1); issues as to marriage and right to divorce undisposed of ('Danziger 68 Mia 452, 124 NYS 177). Public records show: information sought (•Muldoon 98 AD 169, 91 NYS 65). Publisher: of newspaper, who is (Press Pub- lishing Co 33 AD 242, 53 NYS 371). Sallroad train; causing injury sued for, own- ership and operation, by whom (Muldoon 98 AD 169, 91 NYS 65). Seal estate: rented and used by partnership, dispute whether partnership property, ac- tion for dissolution and disposition of prop- erty (Bernheimer 59 AD. 610, 69 NYS 659). Season: for act out of which liability sued on arose, plaintiff examine defendant to frame complaint ('Thompson 134 AD 614, 119 NYS 331). Selatlon between: and interests of defend- ants, action for value of services as archi- tect, plaintiff seek examination ('Reynolds 134 AD 732, 119 NYS 135); defendant and •person operating automobile causing injury sued for (Brichta 152 AD 832, 137 N^S 751); defendants as to ownershijJ and operation, personal injury case (Behl 183 AD 238, 171 NYS 129). Selease: of plaintiff's interest in insurance policy, action to set aside alleged abandon- ment, consent to change of beneficiary, and assignment (Vejarano 165 AD 246, 150 NYS 778). Selevant: to cause of action of plaintiff seek- ing discovery (Ernst 149 AD 280, 132 NYS 11). Rents and profits: of lands Involved in eject- ment action, plaintiff examine defendant (Ryan 46 AD 590, 62 NYS 39). Besldence: occurrences during visit to an- other state as bearing on issue of domicile of testator (Plant 52 AD 628, 65 NYS 236). Sales of stock: fictitious, manipulated, and " wash " character, action for conspiracy in connection with another sale (Bioren 140 AD 523, 125 NYS 392). Secret ag'reement: in fraud of creditors, ac- tion to set aside conveyance as fraudulent (Ewen 155 AD 885, 139 NYS 1054). Securities: of decedent in defendant's hands, action by administrator to recover (Butler 31 AD 281, 52 NYS 756). Separate defense: of defendant examined, ob- ject td avoid (Hennessy 167 NYS 792; Wal- lace 159 NYS 74); cross-examine as to (•Hennessy 167 NYS 792), denial sought ('Wallace 159 NYS 74); disclose ('Hen- nessy 167 SSTYS 792); disprove CJarow & Co 163 NYS 1069). Shipment of rubber; burden of proof on de- fendant to be examined (Sutro 155 NYS 103). Signature: genuineness, proper acknowledg- ment not denied ('Nott 20 WkD 274). Slander: conspiracy to defame (Bradbury 161 NYS 685); cross-examination of defendants (•Bradbury 161 NYS 685); utterance (Brad- bury 161 NYS 685). Solvency: of grantor in conveyance sought to be set aside as fraudulent (Ewen 155 AD 885, 139 NYS 1054). Stock transactions: of defendant broker on account of plaintiff customer, examine de- fendant (McCready 22 AD 632, 48 NYS 39). Telegram: containing false representations on which action based, whether sent by de- fendant (Reed 122 AD 795, 107 NYS 893); receipt (Smith 76 Mis 254, 134 NYS 901). Terms of contract: sued on, defendant ad- mit a contract but deny that complaint cor- rectly sets it forth (Anderson 130 AD 134, 114 NYS 34!>J. Tests: made by defendant to be examined, action to restrain diversion and- wafste of mineral waters and gases ('PvNatural Car- bonic Gas Co 140 AD 802, 125 NYS 510). Title; -nature and extent, easily ascertain- able by inspecton of public records ('Cross 17 CivP 199, 6 NYS 84). Trade secrets and methods: of defendant, action for unfair competition ('Solar Bak- ing Powder Co 128 AD 550, 112 NYS 1013). Trademarks: of partnership, nature and ex- tent, action for dissolution and disposition of property (Bernheimer 59 AD 610, 69 NYS 659). Transfer: of Insurance policy, nature of, ac- tion to set aside alleged abandonment, con- sent to change of beneficiary, and assign- ment (Vejarano 165 AD 246, 150 NYS 778). Trust fund! extent and amount of income and surplus, action to reach income and rr. 122,123 OLEVENGER'S RULES OF CIVIL PRACTICE 128 apply to judgment against beneficiary (Corn Excliange Bk 84 AD 194, 82 NYS 641). Trutb.: as to matters to which false repre- sentations sued for relate ('Diefendorf 125 AD 651, 110 NYS 68). Usury: defendant examine plaintiff for facts bearing on defense of (Pox 20 AD 333, 46 NYS 837). Value: of patents, cause of action dependent on showing excessive issue of corporate stock therefor (Insurance Press 70 AD 50, 74 NYS' 1093). Vralver: of time of delivery, action for fail- ure to accept goods ordered (Mithertz 64 Mis 460, 118 NYS 610). Wells: depth, nature, yield, and manner of operation, action to restrain diversion and waste of mineral waters and gases (PvNat- ural Carbonic Gas Co 140 AD 802, 125 NYS 510). Wife: failure of husband to provide for, ac- tion against husband for necessaries (Far- quharson 67 Mis 277, 124 NYS 476). Will: provision of, examine defendant in action to establish lost will (Blatchfard 24 AD 140, 48 NTS 783). SCOPE OF EXAMINATION PROPER — Accounting: action for, matters bearing on right to interlocutory judgment, limited to (Slaughter 146 AD 620, 131 NYS 324). Affirmative case of: party obtaining order, limited to except in exceptional cases (Ketcham 71 Mis 439, 128 NYS 695), need not be limited to (Strodl 63 Mis 54, 116 NYS 570; Bradbury 161 NYS 685); plaintiff to be examined (Scheff 191 AD 30, 180 NYS 831). All facts: connected with occurrence out of which cause of action arose, examination of party (Cherbuliez 123 AD 814, 108 NYS 321). All issues: personal injury action (*Van Rensselaer 167 NYS 2). Allegations of complaint: as limited by bill of particulars, examination of defendant limited to (.Lord Const Co 189 AD 886, 178 NYS 250). Avoid cancellation of lease: by corporation, action to, examine into operation of prop- erty after cancellation (•Jacobs 112 AD 655, 98 NYS 541). Bill of particulars: limits scope of examina- tion of defendant (Lord Const Co 189 AD 886, 178 NYS 250). Conspiracy: and acts of others in further- ance thereof, action for unfair competition (Solar Baking Powder Co 128 AD 550, 112 NYS 1013). Cross-examination; by defendant sued In representative capacity on oral contract with decedent of witness examined by plaintiff (Stapleton 124 AD 661, 109 NYS 446). Evidence discovered: by party examined as result of preparation for trial (*PvNatural Carbonic Gas Co 140 AD 802, 125 NYS 510). Palse representations: in writing, action for, letters and telegrams sent by defendant, examination limited to (Reed 122 AD 795, 107 NYS 893). Fiduciary relations: between parties, full disclosure of acts of fiduciary examined (Whitman 58 AD 92. 68 NYS 551). Fishing' excursion: ('Terry 180 AD 714, 167 NYS 747; *Tuthlll 141 AD 520, 126 NYS 409; *Schweinberg 131 AD 795, 116 NYS 318; *Dobyns 31 Mis 829, 64 NTS 554; •Chapin 16 Hun 53; *Duffy 36 How 509). Full: on facts material to issues (Tlsdale Lumber Co 147 AD 65, 131 NTS 683). G-eneral: party examining adversary not lim- ited to affirmative cause of action or de- fense set up by him (Herbage 109 NT 81, 14 CivP 79; Terry 180 AD 714, 167 NTS 747); testimony shown material and neces- sary to one only of several issues (*Mar- jori 56 Mis 435, 107 NYS 197). Inaulsition Into opponent's e-vldence: ('Tut- hill 141 AD 520, 126 NTS 409). Items and details: of account, issue as to right to accounting undetermined ('Del Genovese 149 AD 266, 133 NYS 765). No issue: as to matter in question (Murray 167 NY'S 662). Order: should specify (Bamberger 181 AD 805, 169 NTS 227). Preparation for trial: of party examined (•PvNatural Carbonic Gas Co 140 AD 802, 125 NTS 510). Stockholder's action; against directors for waste and loss of assets, full disclosure (Murray 165 NTS 662); to compel directors to account, expenditures and sales of stock (Eokman 178 AD 720, 165 NTS 145). Support examining party's case: (Empire Cream Separator Co 164 AD 223, 149 NTS 659). Transaction resulting in alleged loan: on which action based (Stevens 163 AD 543, 148 NYS 958). TERMS S'Z'NONYMO'US — "Material": and "necessary" (*Koplin 123 AD 327, 108 NYS 602). "Testimony": as used in CCP § 872 and " examination " as used in GRP No 82 (Cherbuliez 123 AD 814, 108 NYS 321). I^EADING' CASE — Settles rules: (CJoldmark 111 AD 526, 97 NTS 1078). RUI^E CITED— But not applied: (Alberti 118 NY 77; Land Vahn Refunding Co 190 AD 858, 180 NTS 784; Siveli 184 AD 62, 171 NTS 429; Miners & Merchants Bank of Lonaconing 113 AD 194, 99 NTS 98, concurring opinion; Hall 87 AD 248, 84 NTS 279; Gillender 98 Mis 521, 162 NTS 955; Smith 59 Hun 552, 13 NTS 941; Aldinger 57 Hun 181, 10 NTS' 684; Dud- ley 53 Hun 347, 6 NTS 388; Fenlon 50 Hun 131, 2 NTS 763; Lachemeyer 26 Hun 542; Cadmus 2 Dem 298; Chestnut 162 NTS 137; PxGrant 1 NYS 890). Erroneously: (Biehayn 123 AD 652, 108 NYS _66). INAPPi;iCAB]^E — Federal court: action piending in (Fisk 113 US 713, 1 HowNS 433). Inspection of books and papers: (LougWin 146 AD 434, 131 NYS 176; Sands 98 AD 148, 90 NTS 749; Thompson 95 AD 542, 89 NTS 4; Mauthey 76 AD 579, 78 NTS 596; Hart 41 Mis 436, 84 NTS 1065). Municipal corporation: as party (Davidson 221 NT 487, afg 175 AD 969). Physical examination: of husband, suit by wife to annul marriage for fraud as to physical condition (Annonymous 34 Mis 109, 69 NTS 547). Receivership; examine defendant with re- spect to, disposition of property and amounts due or¥ failure to comply with or- der to turn over books of account to re- ceiver (Mathushek Piano Mfg Co 79 Hun 417, 29 NTS 781). Surrogate's court: proceeding in (PxLewis 189 AD 335, 178 NTS 500, rvs 107 Mis 253, 176 NTS 806), for probate of will (Hodg- man 107 Mis 70, 175 NTS 608; McCoskry 10 CivP 178, 5 Dem 256). Rule 123. Proof on application for order to perpetuate testimony for future action. On an application for an order allowing testimony to he taken hy deposition for use in an action about to be brought in a court of record, the applicant shall present to the court in which the action may be brought an affidavit setting forth the nature of the controversy which is expected to he the subject of the action and the circumstances 129 DEPOSITIONS TO BE USED WITHIN THE STATE rr. 123-126 which render it necessary for the protection of the applicant's rights that the witness's testimony be perpetuated. EDITOKIAI^ NOTES — Source: CCP § 872, subdivision 6, rewritten; the clause " an action about to be brought in a court of record " is talten from CCP § 870. CCP § 872 revised from 2 RS 391, St 3, c 7, tit 3, §§ 2 and 34, as amended by Li 1879, c 542, L, 1880, c 536, L, 1893, o 721, Li 1895, c 496, L, 1911, c 781, L, 1913, c 278, L 1920, c 91. CCP § 872, subdivi- sion 6, read: "If no action is pending, that the person expected to be the adverse party is of full age, and a resident of the State, or sojourning within the State; or that he has an office within the State, where he regularly transacts business in person, specifying the place, and, if it is in a city, the street and street number, or other designation of the particular locality; of, if two or more persons are expected to be adverse parties that each is of full age, and so resident or sojurning, or has an office; also the circumstances which render it necessary for the production of the ap- plicant's rights, that the witness's testi- mony should be perpetuated." Text la italics is new matter, inserted June 17, 1921. ClTll Practice Act references: Testimony by deposition before action is commenced, CPA § 295. Star (*) means read Not into KEADUm: in capitals. For illustration see Rule 1. SKOWINQ NATUBE OF CONTBOVEBSV SUFFICIEM-T — Facts and circumstances: out of which mov- ing party supposes cause of action in his favor arose, relief which he supposes him- self entitled to, defenses which he antici- pated will be interposed, subjects as to which he desires to interrogate pros- pective defendant, these must be set forth (Duffy 36 How 509). SHO'nTNO' CIRCUMSTANCES BEin>EBING FEBFETUATION NECESSABV BE- QUIBED— Action not commenced: (Moto Bloc Import Co 140 AD 532, 125 NTS 427; Bllett 95 AD 417, 88 NTS 661; White 44 AD 119, 60 NTS 702; Barnet 106 Mis 198, 175 NTS 491; Cohen 52 Mis 400, 104 NTS 1027). SHOWING- CIBCUMSTANCES BENDEBING FEBFETUATION NECESSABY SUFFI- CIENT — Ascertainment of: extent to which pros- pective defendants participated in alleged conspiracy purpose of examination (*Cohen 52 Mis 400, 104 NTS 1027); what witness will testify, necessity for ('White 44 AD 119, 60 NTS 702). Facts and circumstances: not stated ('Moto Bloc Import Co 140 AD 532, 125 NTS 427). Nonresident witness: not party, ill and about to return to residence outside state (Vaughan 139 AD 15, 123 NTS 535). Preparation for trial: (•Barnet 106 Mis 198, 175 NTS 491). SHOWING- AS TO AGE OF FBOSFECTIVE ADVERSE FABT7 NECESSABY — Action not commenced: (Cohen 52 Mis 400, 104 NTS 1027; Darling 31 Mis 543, 64 NTS 793). SHOWING IiOCATION OF ADVERSE PARTY'S OFFICE NECESSARY — Regularly transacts business therein: (Cohen 52 Mis 400, 104 NTS 1027). Biule 124. Motion to vacate notice. If a party on whom a notice to take testimony by deposition is served shall move to vacate, modify or limit the same, he shall specify in his notice of motion the grounds of the motion, and may support the same by affidavit, •which shall be served with the notice of motion. If the court or judge who hears the motion shall deem that the testimony sought to be taken is not material or necessary for the party who served the notice, or for any reason that the interests of justice would not be subserved by such examination, an order may be made vacating and setting aside the notice to take the testimony or limiting the scope of the exa/mination. If the coun't or judge shall deem that the testimony should be taken at a time or place, or before a person, other than specified in the notice, an order may be made fixing a different time or place for the taking of the testimony, and designating some other person to take the same, and imposing reasonable terms or conditions. EDITOBIAK NOTES — Source: new. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Motion to va- cate or modify notice, CPA § 291. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. NOTICE TO TAKE TESTIMONY VA- CATED — Within knowledg-e; subject matter within, ■ assignor's knowledge, action by assignee but assignor real party in interest (Craw- ford [Dec 2, 1921] 66 NYDJ 762). Eule 125. Certain papers relating to depositions to be filed. "A stipulation that testimony be taken by deposition shall be filed in the office of the clerk before any pro- ceedings are taken thereunder, unless the testimony is to be taken on written inter- rogatories only and the interrogatories are settled by the stipulation and made a part thereof. If an order to take testimony by deposition be made by a judge, out of court, it must be entered in the office of the clerk. EDITOBIAIi NOTES — Source: First sentence is new; last sentence is CCP § 890, first sentence, as revised from 2 RS 393, pt 3, c 7, tit 3, § 13. First sentence covers CCP § 908, second sentence. Text in Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Testimony to be taken by stipulation, CPA § 298. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. r. 126 OLEVENOER'8 RULES OF CIVIL PRACiTIOE 130 Rule 126. Service and settlement of interrogatories. When written interrogatories are required, they may be settled by consent of the parties. If they are not so settled, interrogatories and cross-interrogatories shall be served and settled as follows: the interrogatories shall be served within ten days after the entry of the order or the filing of the stipulation which provides for written interrogatories; cross-interrogatories shall be served within ten days after the service of the interrogatories, unless a different time is fixed by order or consent. If a party shall fail to serve cross-interrogatories within the time limited therefor, he shall be deemed to have waived his right to propound cross- interrogatories to the person whose deposition is to be taken; but where the examination may be partly oral, he may appear and cross-examine orally as to the matters elicited by the adverse party by oral questions. Either party, within two days after the service of the cross-interrogatories, or within two days after the time to serve cross-interroga- tories has expired, may serve on the adverse party a notice of not less than two nor more than ten days of the settlement of the interrogatories and cross-interrogatories before a justice of the court or a county judge. Either party shall be allowed to insert any question pertinent to the issue. If neither party serve such a notice within the time limited therefor, the interrogatories and cross-interrogatories are to be deemed settled as served and shall be allowed without notice. EDITOBIAI^ NOTES — Source: first sentence is CCP § 891, first sentence adapted; second, third, fourth and sixth sentences are General Rule of Prac- tice 20, amended; fifth sentence is CCP § 892, second sentence amended. CCP § 891 revised from 2 RS 393, pt 3, c 7, tit 3, § 14, as amended by L. 1875, c 420, with the addition of the introductory clause. CCP § 892 revised from 2 RS 393, pt 3, c 7, tit 3, § 15. General Rule 20, formerly Rule 20 of 1900, 1910, 1913, read: " Interrogatories to be annexed to a com- mission 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, 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 pro- pound 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 set- tlement of the interrogatories and cross- interrogatories before a justice of the court or county judge. The time at which such interrogatories or cross-interroga- tories 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 interroga- tories and cross-interrogatories are to be deemed settled as served and shall be so allowed without notice." Text in Italics is new matter, inserted June 17, 1921. Civil FracMce Act references: Manner of taking testimony, CPA § 302. Star (*) means read Hot into HEADIiIITE in capitals. For illustration see Rule 1. TERMS CONSTRUED— " Commission. ": includes interrogatories (Hurd 2 Hill 502). " Pertinent " and " relevant " interroga- tories: in same class (Smith 89 Mis 628, 142 NYS 151). PURPOSE OP SETTLEMENT — Authenticate interrogatories: as the ones which the commissioner is authorized to propound to witness (Wanamaker 168 NT 125). INSERTION OP QUESTIONS PROPERIiY Ai;i.OWED — All pertinent questions! (Uline 79 NT 175), even where pertinency doubtful (Irving 122 AD 56, 107 NTS 83; Early 170 NTS 117; Hemenway 21 NTS 679). Clearly frivolous: unless (Jones 75 Hun 35, 27 NTS 274). Confidential communlcatlous: between at- torney and client (Percival 165 NTS 1). Immaterial: to any possible issue ('Gilpin 12 NTS 448). Impertinent questions: (•Uline 79 NT 175; •Smith 89 Mis 628, 142 NTS 157; •Zeggio 155 AD 893, 139 NYS 1070; •Walton 54 Hun 387, 7 NTS 926; •Hemenway 21 NTS 679; •Dent 16 NTS 684). Questions not admissi'ble at trial: (•Mac- Donald 9 AbP 178; •Blaisdell 9 AbP 178n); which may become competent thru cir- cumstances happening at the trial (Wilcox 53 Hun 665. 6 NYS 368^. OBJECTIONS TIMEIiY — On settlement of interrogatories: all objec- tions except as to relevancy of questions or competency or credibility of witness (Brewer 20 Mis 509, 46 NTS 639); per- tinency of question (Uline 79 NT 175; Dent 16 NTS 684); competency of question, if pertinent ('Spurr & Sons 122 AD 449, 106 NTS 1009; *Wanamaker 168 NT 125; Fry 2 Mis 520, 22 NYS 386), where right of cross-examination abused (Treadwell 89 AD 60, 85 NTS 318). On trial: all objections except pertinency (Smith 80 Mis 628, 142 NTS 151; Irving 122 AD 56, 107 NTS 83; Walton 54 Hun 387, 7 NTS 926; Hemenway 21 NYS 679). ESTABLISHMENT OP PERTINENCT NEC- ESSARY— Burden of proof: on proposer (Hernandez 158 AD 815. 144 NTS 150). Mere insertion: insufficient (Hernandez 158 AD 815, 144 NTS 150). Sutaciency of answer: not considered (Thorp 56 Supr 254, 3 NTS 547). OBJECTIONS TO INTERROaATORIES IM- PROPER — Too broad: objection to part no ground for excluding whole interrogatory (Commercial Bank 11 NT 203). VTRITTEN INTERROG-ATORIES REQUIRED Examine numerous persons: to prove prima facie case for goods sold (Klemens [Oct 28, 1921] 66 NTLJ 345). DIRECTIONS POR RETURN PROPER — Indorsed on interrogatories: instead of on commission itself (Hurd 2 Hill 502). 131 DEPOSITIONS TO BE USED WITHIN THE STATE rr. 127-129 Rule 127. Time and place of taking testimony; adjournments. The officer or per- son before whom testimony is to be taken wholly or partly on oral questions shall proceed with the examination at the time and place designated therefor, unless the examination be adjourned. Any examination for the taking of testimony by deposition may be adjourned, from time to time, by the officer or person before whom it is to be taken; provided, however, that an examination within the state shall not be adjourned to a place outside the county containing the place designated in the notice or order. SDITOBIA]^ NOTES— Source: CCP § 876, except last sentence, re- vised from 2 RS 392, §§ 5 and 36, as amended by L 1879, o 542, by adding- the concluding sentence. CCP § 876 read; " Upon proof, by affidavit, that service of a copy of the order and of the affidavit has been duly made, as directed in the order, the judge or the referee must pro- ceed to take the deposition of the witness, at the time and place specified in the order. He may, from time to time, adjourn the examination to another day, and to another place within the same county. Sections eight hundred and fifty-six, eight hundred and fifty-seven, and eight hundred and fifty-eight of this act apply to the examina- tion of a party or a person expected to bo an adverse party, taken as prescribed in this article. Text In Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADKIHE in capitals. For illustration see Rule 1. PLACE DESIOITATED FOR EXAKINA. TIOIT FBOPEB — King's Connty: resident of New York County having no place of business in (♦Gusstaft 4 CivP 243). New Vork County: resident of Kings County having no place of business in ("Hesse 45 Supr 417). Kesldeuce of party: suffering from injuries (Harrold 21 Hun 268). ADJOirSinilENT PBOFER — Additional -witness fees: unnecessary (Lan- german 23 NYS 1000). PROVISION FOR ADJOURNMENT SU- PERFLTTOUS— Stricken out: (Muller 55 Mis 30, 104 NYS 782). ADJOURNMENT NOT -WITHIN RULE — Order directinif examination on subsequent date: because of stay of original order (Grant 121 AD 761, 106 NYS 535). SERVICE OF COPY OF ORDER NECES- SARY — On attorney; (Cowen 7 StR 403). RULE CITED — But not applied: (Ellet 95 AD 417, 88 NYS 661; Anthony & Co 42 AD 66, 58 NYS 907). Bule 128. Papers to authorize officer or person to proceed with examination. Before proceeding with an examination under a commission, order, stipulation or notice for the taking of testimony by deposition, the officer or person before whom it is to be taken shall have the commission, the stipulation or a certified copy thereof, if the stipula- tion shall have been filed, a certified copy of the order or a copy of the notice, as the case may be, under which he is authorised to act, together with proof of service of any order or notice required to be served. If he shall have only the notice for taking depo- sitions provided for in section two hundred and ninety of the civil practice act, with proof of service thereof, he shall require the party at whose instance the notice was served, or the counsel by whom he is represented at the hearing, to make affidavit that, to the best of his knowledge, information and belief, no motion has been made under section two hundred and ninety-one of the civil practice act to modify or vacate the notice, or, if made, that the motion has been heard and denied and that no stay of pro- ceedings in the matter is in force. If the testimony is to be taken without the state, such officer or person shall also be provided by counsel for the party seeking the exam- ination with a copy of this title of the rules and of article twenty-nine of the civil practice act. Proof of service of any order or notice referred to in this rule shall be made by affidavit. EDITORIAL NOTES— Source: all except last two sentences are new; last two sentences are CCP §§ 900, 901, last sentence; last sentence covers CCP § 876, first clause. CCP § 900 inserted as new in 1880. CCP § 901 revised from 2 RS 393, pt 3, c 7, tit 3. § 16, and L of 1853, §§ 6, 7 and 8. CCP § 876 revised Rule 129. Marnier of taking testimony by deposition. On the oral examination of a person whose testimony is to be taken by deposition, either within or without the state, the oral examination shall be conducted in the same manner as on the trial, except that an objection to any question need not be noted, and may be raised upon the trial, unless it be an objection to form only, which must be noted. A deposition, when completed, must be read carefully to the person examined and subscribed by him. In an examination within the state before a person other than a judge of the court, if a witness refuses to answer a question, such refusal may be reported to the court or judge, who shall determine if the witness should answer. from 2 RS 392, pt 3, c 7, tit 3, § 5 as amended by L 1879, c 542, by adding last sentence. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. EDITORIAL NOTES— Source: CCP §§ 880, 883, 900, part, combined and condensed. CCP § 880 revised from 2 BS 392, c 7, tit 3, amended by L 1879, vised from 2 RS 392, § 7 and pt of § 5, as ; 542. CCP § 883 re- §§ 9 and 40. rr. 12.9,130 CLEVENGER'8 RULES OF CIVIL PRACTICE 132 Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Manner or taking testimony, CPA § 302. Star (•) means read Not into HEAD^ISTi: In capitals. For illustration see Rule 1. COITDVCT OF EXAnXTN'ATION PBOFEB — Amanuensis: employed by judge (MacDon- ald 9 AbP 34, 18 How 249). Eviaence as to defense: requiring defendant to disclose evidence relating exclusively to his defense, upon examination by adver- sary party (*Adams 37 Hun 235). Irrelevant Inquiries: exclusion of (Smith 1 CivP 92; Varona 8 AbP 302: Brown 4 LawB 20). Self-incrimination; requiring witness to give an answer which would tend to criminate or degrade him, or subject him to a penalty or forfeiture ("Yamato Trading Co 27 Hun 248; 'Sprague 22 Hun 502; 'Greensward 59 How 399). Testimony word for word: such taking re- quired under CCP § 900 (Grissen 64 Hun 488, 19 NTS 437). OBJECTIONS PBOFEBI^Y BAISBS AT TBIAIi — Competency or credibtlity: of witness (Den- nison 4 NYS 257). Belevancy: of questions and answers (Host 182 NYS 816; Kalkhotf 67 Mis 167, 121 NYS 713; Dennison 4 NYS 257). Substantial competency: of questions and answers (Kalkhoff 67 Mis 107, 121 NYS 713; Kramer 80 AD 20, 80 NYS 184; Host 182 NYS 81G; Bambauer 163 NYS 186; Den- nison 4 NYS 267). OBJECTION TO POBII WAIVED — By failure to object: before officer taking deposition (Hebbard 70 NY 54). OBJECTIONS SCADE AT EXAMINATION WAIVED — Admissibility: not renewed at trial (Martin 53 NY 615). BEADINO- TO WITNESS HECESSABY— Deposition suppressed: (Faith 70 AD 303, 75 NYS 420; Foster 12 Hun 200). CABEPUI^ BEADINO PBESUKED — Certificate of officer: stating deposition " was read to the witness " (Sheldon Z Bos 267, afd 24 NY 607). BEADING TO WITNESS WAIVED— < By stipulation of pai^tles: at close of ex- amination providing for cross examination on notice, but that for the purpose of the order entered that day, the examination was closed (Mayer 33 Hun 1). S1TBSCBIPTION BY WITXTESS NECES- SABY — Deposition suppressed: (Foster 12 Hun 200). SUBSCBIFTION BY WITNESS WAIVED — By stipulation of parties: at close of ex- amination, providing for cross-examination on notice, but that for purpose of the order entered that day, the examination was closed (Mayer 33 Hun 1). ICATTEBS PBOPEBKY CONSIDEBED BY TBIAII COVBT ON BEFOBT OP BE- TVSAJ,— Cootnpetency and materiality: of question (•Gunther 159 AD 74, 143 NYS 961). Tendency of answer: to criminate witness (Davenport Glucose Co 6 CivP 152). ANSWEB BY WITNESS OBDEBED — Disposition of assigned property by aa- sl^nee: action to set aside assignment as fraudulent (Dambmann 2 Hun 284). Questions calling' for answer: which would, tend to criminate or degrade witness or subject him to a penalty or forfeiture (•Funk 4 CivP 408). To Irrelevant (luestlons: jl'Young 24 Mis 432, 53 NYS 678). BU£E CITED — But not applied: (Harris 106 Mis 638, 175 NYS 263; Roberts 29 Hun 154; Brisbane 20 Hun 48). To part: of CCP 5§ 880, 883 omitted from Rule 129 (Fogg 4 CivP 344). Bule 130. Special provisions as to depositions taken without the state. An officer or person before whom testimony is taken without the state shall comply with the fol- lowing directions: 1. If an exhibit be produced and proved, he shall annex to the deposition the exhibit, or a copy thereof if the original be not surrendered, subscribed by the witness proving it, and numbered or otherwise identified, in writing thereow, by the officer or person taking the deposition, who must subscribe his name thereto; 2. He shall subscribe his name to each single sheet of the deposition; 3. He shall annex to the deposition the papers authorizing him to proceed with the examination, together with the interrogatories, if any; 4. He shall annex to each deposition his certificate setting forth: a. That the witness was duly sworn, and that the deposition was duly taken and is a true record of the testimony of the witness and of all questions and answers required to be inserted; b. That the signature of the witness to the deposition and any exhibit or copy attached thereto is genuine; c. A statement of all appearances by the parties and attorneys. 5. On the completion of the examination, he shall incZose in a single packet, securely sealed, the deposition or depositions and all papers required to be annexed thereto; 6. If the notice, stipulation or order contain a direction to return the deposition by mail, or if there is no direction as to the manner of the return, he must immediately deposit the packet in the postoffice, postage prepaid, and addressed to the clerk with whom it is required to be filed at his office; 7. If there be a direction to return the same by an agent of the party, at whose instance the testimony is taken, the packet so addressed must be delivered to the agent; <9. A notice, stipulation or order for the taking of a deposition before two or more persons may be executed by one or more of them. EDITOBIAl; NOTES — Source: subdivision 1 Is CCP § 901, subdi- vision 3; subdivisions 2 and 3 are CCP § 901, subdivision 4; subdivisions 4 and 5 are new subdivision 6 is CCP 5 901, subdivision 5 subdivision 7 is CCP § 901, subdivision 6 133 DEPOSITIONS TO BE USED WITHIN THE STATE rr. 130-132; subdivision 8 is CCP § 901, subdivision 7; subdivisions 6 and 7 cover CCP § 892, third and fourth sentences. CCP § 901 revised from 2 RS 393, pt 3, c 7, tit 3, § 16, and L. 1853, c 387, §§ 6, 7 and 8. CCP § 892 revised from 2 RS 393, § 15. Text In Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Manner of taking testimony, CPA § 302. Star (•) means read Not into SEADI^IITi: in capitals. For illustration see Rule 1. JUaHT TO APPEAR BY COVNSEi; ABSO- IiUTIi— JTottce: unnecessary (Union Banlc 2 AbP 269, 5 Duer 626). COMKISSIOM'ER'S CERTIPICATE S1JFPI. CrEITT — Notes marked as exhibits A and B: with witnesses names signed on them certificate stating that witnesses testified as above written and subscribed their names on notes attached to their answers, which were produced and shown to them (Bruns- Icill 11 NY 294). BEADINa OP BBPOSITION ITECBSSAR'Z' — Pallnre to read necessitates rejection: If objection made (Anna McNally Inc 189 NTS 441). DIRECTIONS AS TO RETURN TTNNECES- SARY — Clerk's residence: CWilliams 1 Hill 249). Deposit: in post office (BrumskiU 11 NY 294). PROVINa OP EXHIBITS INStTPPICIENT — Iietters Identified: before commissioner (Kelley 9 AbNC 62). ANSWERS SUPPICrENTlY SHOWN— Trnniunbered answer: " and further deponent knoweth not " following the general cross- interrogatory at end of questions (Gates 60 NY 518). AJUENDMENT OP DEPOSITION PER- MITTED — Certificate: failure to attach certificate to depositions (Rlsley 48 Mis 277, 96 NYS 728). Name: failure to subscribe (Rlsley 48 Mia 277, 96 NYS 728). ANNEXATION OP COPY OP STATUTE PRESUMED — Contrary not appearlngr: (Williams 1 Hill 249). COPY OP EXHIBIT PSOPERI^Y RE- QUIRED TO BE ANNEXED TO DEPO- SITION — Papers subject to order of; federal court (Jafte 181 AD 16, 167 NYS 1039). ANNEXATION OP PAPERS SUPPICIENT — Wafers: by (Williams 1 Hill 249). ENdiOSINa AND SEAIiING SUPPI- CIENT— PresTunptlon; that officer did it himself (Williams 1 Hill 249). CERTIFICATION AS TO OATH SUPPI- CIENT — Presumption: as to public administration (Williams 1 Hill 249). SUBSCRIPTION BY OPPICER SUPPI- CIENT — Initials: of first name (Williams 1 Hill 249). Signature: of one of two commissioners (Williams 1 Hill 249). Rule 131. Provisions relating to filing of depositions and papers from without the state. The folloiving provisions shall apply to the filing of depositions and papers from without the state: 1. If a packet containing such depositions and papers be delivered to an agent, he must deliver it to the clerk to whom it is addressed or to a judge of the court, on the making of an affidavit by the agent that he had received it from the hands of the officer or person who took the deposition and that it had not heen opened or altered since he received it; 2. If the agent be dead, or, from sickness or other disability, is unable to deliver the packet personally, it must be received by the clerk or judge from the hands of another person, on the making of an affidavit by the latter that he had received it from the. agent; that the agent is dead, or otherwise unable to deliver it; that it has not been opened or altered since he received it; and that he believes that it has not been opened or altered since it came from the hands of the officer or person who took the deposition; 3. The clerk or judge who receives the packet, must indorse thereow the time of receipt and opening thereof and immediately file it in the office of the clerk together with the affidavit of the person who delivered it to him; 4. If the packet be transmitted through the post-office, the clerk to whom it is addressed must receive it from the post-office, open it, indorse thereow and sign a like note of the time of the receipt and opening thereof, and immediately file it in his office, EDITORIAIi NOTES— Source: subdivision 1 is CCP § 904; subdivi- sion 2 is CCP § 905; subdivision 3 is CCP § 906; subdivision 4 is COP § 907. CCP § 904 revised from 2 RS 393, pt 3, c 7, tit 3, § 17. CCP § 905 revised from § 18. CCP § 906 revised from § 19. CCP § 907 revised from § 20. Text in ItaUcs is new matter, inserted June 17, 1921. Star (•) means read Not into HEADI^INE in capitals. For Illustration see Rule 1. AFFIDAVIT OP AGENT REQUIRED — Waiver: not shown (Dwindle 1 AbP 87). Rule 132. Where depositions are to be filed and kept. Each deposition, and the papers required to be annexed thereto, shall be filed, within ten days after its completion and return, in the offi-ce of the clerk of the court, in the county in ivhich the action is triable or special proceeding pending unless such filing is waived by stipulation. Each deposition, and the papers annexed, shall remain on file vnth such clerk, unless other- wise provided by stipulation of the parties, or unless the court, by order, directs them rr. 13a, 133 CLEVENGER'8 RULES OF CIVIL PRACTICE 134 to be filed with another clerk. They shall always be open to the inspection of the parties, each of whom is entitled to make copies thereof. ESITOBIAI^ NOTES — Text In Italics is new matter, inserted June Source: first sentence is new; covering CCP 17, 1921. § 880, as to filing depositions; last two Star (•) means read Not into HEADI^INE sentences are CCP § 909 rewritten. CCP in capitals. For illustration see Rule 1. § 880 revised from 2 RS 392, pt 3, c 7, COBBESPONDENCB IHPROPEBI^V AT- tit 3, § 6 and pt of § 5 and § 37, as amended TACKED — by I, 1879, c 542. Confidential business transactions; (Herbst 158 AD 503, 143 NTS 748). Rule 133. When deposition taken without the state may be suppressed. If a depo- sition taken without the state has been improperly or irregularly taken or returned, or the attorney for either party has practiced any fraud, or unfair or over-reaching con- duct, in respect of such deposition, an order for the suppression of the deposition may be made by the court, on the application of the party aggrieved, after notice to the adverse party. If it appear that a resident of the state whose deposition was taken without the state could have been subpoenaed to attend the trial, his deposition may be suppressed unless he resides more than one hundred miles from the place of trial. ESITOBIAi; NOTES — Source: CCP § 910 rewritten as revised from li 1853, c 387, § 14. The words "in re- spect of such deposition " read " to the prejudice of the adverse party, in the course of the proceedings." Text In Italics is new matter, inserted June 17, 1921. CivU Practice Act references: When testi- mony by deposition to be read in evidence, CPA § 303. Star (•) means read Not into READIiINE in capitals. For illustration see Rule 1. MOTION TO SUPPRESS NECESSARY — Answers: not satisfactory (Bnebak 9 StR GROUNDS FOR SUPPRESSION SUFFI- CIENT — Absence of: commissioner's return ('Creamer 4 AbP 413); and no notice to, plaintiff's at- torney: waiver of (*Clark 102 NT 656). Conunlsslon not adOressed and returned: to person named in order (Drexell 1 LawB 6). Defective execution: of commission (Terry 58 Barb 241). Failure of witness to answer: all interroga- tories propounded ('Denny 2 LawB 40), last cross interrogatory, where no objec- tion made (•Kimball 19 Wend 437; 'Brown 25 Wend 259). Pailure to read deposition to deponent: (Lowther 63 Mis 51. 116 NTS 588), where defect not cured (Faith 70 AD 303, 75 NTS' 420). Pailure to take testimony word for word: when so required (Grissen 19 NTS 437, 22 CivP 184). Formal defects: in return (See Rust 41 NT 488). Prench lang^agre: extracts of French law given in ('•Hynes 3 LawB 56). Interest or bias: of witness ('Bowen 146 AD 672, 131 NTS 536). Irregular Issuance: or execution (Denny 11 Daly 358). Fart of deposition and interrosfatories Im- proper: whole deposition not suppressed (*Comra Bank 11 NT 203). Partial answer to cross-interrogatory: (•Baker 47 NT 562, afg 58 Barb 248), general objection (•Valton 20 NT 32). Refusal of witness to answer: material questions (Bowen 146 AD 672, 131 NTS 536; Smith 3 Hill 333; Calhoun 124 AD 633, 109 NTS 77; Palmer 47 Supr 455), wilfully and knowingly (Goldmark 22 NTS 136); due to no act or objection of party calling him, whole deposition not suppressed un- less question clearly material ('Calhoun 124 AD 633, 109 NTS 77); immaterial ques- tion (•Michaelis 51 AD 470, 64 NTS 753). Refusal of witnesses: to produce documents (•Bowen 146 AD 672, 131 NTS 536). Return of witness: to place of residence (Wing 137 NT 361, rvg 62 Hun 383, 42 StR 331). Unfair condnct: not shown (Butler 44 Supr 531, 56 How 312); supplying witness with copy of interrogatories and cross inter- rogatories (Graham 9 NTS 392; 'Butler 44 Supr 531, 56 How 312). MOTION TnviE^Y— At trial: ('Newton 69 NT 133; 'Strum 63 NT 77; •Hedges 33 Hun 546; 'Union Bank of Sandusky 2 AbP 269, 5 Duer 626); where previous opportunity to discover defect and object thereto existed (•Denny 11 Daly 358); where party had no previous know- ledge of irregularity (Mason & Hamlin Organ Co 19 Hun 282). Before trial: (Calhoun 124 AD 633. 109 NTS 77; Ruckert 51 AD 377, 64 NTS 622; Becker 7 Hun 458; Burrill 51 Barb 105; Sheldon 2 Bos 267, afd 24 NT 607). Motion to put case on short-cause calendar: after ('Hartwig 74 AD 140, 77 NTS 533). Term of court at which case might have been tried: before (Benedict 68 Hun 202, 22 NTS 839, 51 StR 892). BIQHT TO SUPPRESSION WAIVED— Failure to move; before trial (Reynolds 20 Mis 254, 45 NTS 338; Union Square Bk 9 AD 596, 41 NTS 602). OPPORTUNITY TO CUBE DEFECTS AI^ I^OWED— Failure to read: deposition to deponent (Faith 70 AD 303, 75 NTS 240). RETURN OF DEPOSITION FOB COBBEC- TION PBOPEB — Certificate: not attached (Rlsley 48 Mis 277, 96 NTS 728). Name of cooumissioner: not subscribed (Ris- ley 48 Mis 277. 96 NTS 728). MOTION TO ISSUE NEW COMMISSION PROPER — XTnfalr and overreaching' conduct: ('Crossett 49 AD 367, 63 NTS 409). RULE CITED — But not applied: (Wanamaker 168 NT 126; Murray 39 Hun 581). 135 DEPOSITIONS TO BE USED WITHOUT THE STATE rr. 136,137 TITLE 16 DEPOSITIONS TO BE USED WITHOUT THE STATE Rule 136. Subpoena to compel attendance of witness to obtain testimony for use without the state and proceedings thereon. 137. Punishment of disobedient witness. ESITORUX NOTES— Civil Practice Act reforoncee: In what cases depositions may be taken, CPA § 310; Sub- poena to witness, CPA § 311; Taking and return of deposition, CPA § 312. Eule 136. Subpoena to compel attendance of witness to obtain testimony for use ■without the state and proceedings thereon. The petition prescribed by section three hundred and eleven of the civil practice act must state generally the nature of the action or proceeding 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. If an application be made for a subpoena to compel the production of books or papers, the petition shall specify, as nearly as the applicant can, the particular books or papers the production of which is sought, and show that the applicant has reason to believe that such books or papers are in the possession of, or under the control of, the witness and are material on the issues presented in the action or proceeding in which the deposition of the wit- ness 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 three hundred and ten and three hundred and eleven of the civil practice act, the application for the production of such books or papers shall not be granted. If the subpoena direct 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. The subpoena must be served on 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 which issued the subpoena, on one day's notice, to vacate or modify such subpoena. EDITORIAL NOTES — Source: General Rule of Practice 17, first paragraph. Formerly Rule 17 of 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. ClTil Practice Act references: Subpoena to witness, CPA § 311. Star (*) means read Not into HEADLINE In capitals. For illustration see Rule 1. Rule 137. Punishment of disobedient witness. On proof by affidavit that a person to whom a subpoena has been issued refuses or fails to obey the subpoena; to be duly sworn or affirmed; to testify or answer a question propounded to him; to produce a book or paper which he has been subpoenaed to produce; or to subscribe his deposition when correctly 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 question propounded; produce a book or paper; or subscribe his deposition, as the case may be. Such affidavit shall also set forth the nature of the action or proceeding in which the testimony is sought to be taken, and a copy of the pleadings or other papers defining the issues in such action or proceeding, or the facts to be proved therein. On the return of such order to show cause, the supreme court, on such affidavit and on the original petition, and on such other facts as shall appear, shall determine whether such person should be required to appear; be sworn or affirmed; testify; answer the question propounded; produce the book or paper; or subscribe his deposition, as the case may be, and may prescribe such terms and conditions as shall seem proper. On proof of a failure or refusal on the part of any person to comply with any order of the court r. 137 OLEVENaEB'8 RULES OF CIVIL PRAOTIOE 136 made on such determination, the court or judge shall make an order requiring such a 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. On the return of the order to show cause the questions which arise must be determined as on a motion. If such failure or refusal be established to the satisfaction of the court or judge before whom the order to show cause is made returnable, the court or judge shall prescribe the punishment as in the case of a recalcitrant witness in the supreme court. Civil Practice Act references; Subpoena to witness, CPA § 311. „ ^ . ^ __.«,T«rx. Star (•) means read Wot into HBADMITB In cabltals. For Illustration see Rule 1. EDITOBIAL NOTES— Source: General Rule of Practice 17, last paragraph. Formerly Rule 17 of 1900, 1910, 191S. Text In ItBliOB is new matter, inserted June 17, 1921. 137 PERPETUATION OF TESTIMONY IN REAL PROPERTY ACTIONS r. 138 TITLE 17 PERPETUATION OF TESTIMONY IN REAL PROPERTY ACTIONS Rule 13'8. Petition to perpetuate testimony in real property actions. EDITORIAI. NOTES— Civil Practice Act references: Testimony perpetuated In actions or proceedings in- volving title to real property, CPA § 313; Documentary evidence in connection with testimony perpetuated, CPA § 314; Mode of introducing testimony perpetuated, CPA § 315; Application to take deposition and to perpetuate testimony, CPA § 316; Notice of application and appointment of referee, CPA § 317; Order to examine witness with- out the state, CPA § 318; Proceedings be- fore referee, CPA § 319; Examination, depo- sition to be signed and certified, CPA § 320; Depositions as evidence, CPA § 321. Rule 138. Petition to perpetuate testimony in real property actions. A person desiring to take a deposition and to perpetuate testimony in any action or proceeding involving a question as to title to real property in the state of New York as prescribed in the civil practice act may present to a justice of the supreme court a petition, duly verified, setting forth as follows : 1. A description of the real property in relation to which the petitioner desires testimony taken and perpetuated, the estate of the petitioner therein, whether in fee or for life, or for a term of years, and whether he holds as heir, devisee or purchaser, or as trustee of an express trust; 2. That the property at the date of the petition is and for one year next preceding has been in his possession or the possession of himself and those from whom he derives title, either as sole owner or as joint tenant or as tenant in common; 3. A general statement of the facts as to vfhich testimony is to be taken and the circumstances which render it necessary for the protection of the petitioner's rights that the proposed testimony should be perpetuated; 4. The names and residences of the persons to be examined; 5. The names and residences of persons having interests which may be advei-sely affected by the testimony sought to be taken, so far as such names and residences are within the knowledge of the petitioner; or, where such names and residences cannot be ascertained, a statement of the class of persons having interests which may be so adversely affected; 6. Any other fact necessary to show that the case comes within the provisions of the civil practice act relating to such deposition. EDITORIAI^ NOTES — Source: CCP § 1688-e, revised from 2 RS 339, pt 3, c 5, tit 7, § 24. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Application to take deposition and to perpetuate testimony, CPA § 316. Star (•) means read Not into HEADZiINE in capitals. For illustration see Kule 1. r. 140 OLEVENGEB'S RULES OF CIVIL PRACiTWE 138 TITLE 18 DISCOVERY AND INSPECTION Rule 140. Application for discovery. 141. Hearing of application; order. 142. Eeferee to superintend discovery or inspection. SDITOBIAI^ NOTES— Civil Practice Act references: Power of court to require discovery, CPA § 324; Penalty for disobedience, CPA § 325; Effect of books or documents produced under order for dis- covery, CPA § 326: Discovery or inspection on notice, CPA § 327; Disclosure by party in aid of discovery, CPA § 328. Rule 140. Application for discovery. A party to an action may apply to the court for an order requiring an adverse party to show cause why he should not be compelled to produce and discover, or to give an inspection and copy of, or permission to take a copy or photograph of, a book, document, paper, machine or other article, or to make a discovery of any article or property in his possession or under his control, relating to the merits of the action or of the defense therein. Such order to show cause shall be granted on an affidavit showing that the book, document, paper, machine, article or property whereof discovery or inspection is sought is not in the possession or under the control of the party applying therefor but is in the possession or under the control of the party against whom discovery or inspection is sought, or of his agent or attorney. EDITOBIAZ^ NOTES — Sonrce: first sentence supersedes General Rule of Practice 14; last sentence super- sedes General Rule of Practice 15; also supersedes COP § 805. General Rule 14 was formerly Law Rule 27; Rule 8 of 1849, 1852; Rule 14 of 1858; Rule 18 of 1871, 1874; Rule 14 of 1877, 1880, 1884, 1888, 1896, 1900, 1910. General Rule 15 was formerly Law Rule 28; Rule 9 of 1849, 1852; Rule 15 of 1858; Rule 19 of 1871, 1874; Rule 15 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. CCP § 805 revised from 2 RS 199, pt 3, c 1, tit 3, §§23 and 25. General Rule of Prac- tice 14 read: "Applications may be made in the manner provided by law to compel the production and discovery or inspection with 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 complaint or to answer any pleading of the defendant. (2) By the defendant, to compel the like discovery of books, papers, or documents in the possession, or under the control of the plaintiffs, which may be necessary to enable the defendant to answer any plead- ing of the plaintiffs. (3) Either party may be compelled to make any discovery of any 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, document, record, article, or property is material to the de- cision 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." General Rule 15 read: "The moving papers upon the ap- lication 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 whereof 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 his agent or attorney. The party apply- ing shall show to the satisfaction of the court or judge the materiality and necessity of the discovery or inspection sought, the particalar 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 inspec- tion." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. APFIiICATION sirrFicrBNT — Affidavit: (Chojnackl 76 Mis 427. 134 NTS 1090), prior to Laws 1911, c 763 ('Hirsh- field 51 Mis 644, 99 NTS 912). BiU in equity: (»Baylow 59 AD 576, 69 NTS 693). Cured Iby answer: (Filchett 30 AD 304, 51 NTS 566). Description: of books and papers (Hoffman 12 Mis 3, 33 NTS 23; •Hutchinson 157 AD 228, 141 NTS 809; •Cornish 53 Hun 40, 5 NTS 889). Failure to allegre: accounts to be inspected (•Keilty 31 AD 115, 62 NTS 550); foreign corporation's books and papers within state (Snow 80 AD 40, 80 NTS 512); materiality of books and papers (Hutchinson 157 AD 228, 141 NTS 809; Lyett 3 NTS 643); non- payment of compensation (Sivins 54 Mis 66, 104 NTS 503); sales made (Sivins 54 Mis 66, 104 NTS 503); sources of infor- mation of allegations made on information and belief (Hutchinson 157 AD 228, 141 NTS 809). Petition: not motion (Francis 88 Hun 325, 34 NTS 752). Verification: by affidavit of party (Hoffman 12 Mis 3, 33 NTS 23; National 54 Supr 444); by affidavit of attorney, applicant nonresident of county (Fromme 63 Hun 290, 17 NTS 850). APFI.ICATION TIMELY— About trial time: petitioner not knowing books to be in possession of defendant until 2 or 3 days before (Smith 149 AD 670, 134 NTS 400). After case on preferred calendar: ana reached for trial ('Mutual 33 Mis 572, 68 NTS 885, afd 58 AD 625, 69 NT 1140). After case set for trial: and on day calendar (•Broadway 92 Mis 293. 155 NTS 629; •Moran 29 AD 243, 51 NTS 434). After case set for trial on short calendar: marked "Ready" and passed ('Sivins 54 Mis 66, 104 NTS 503). 139 DISCOVERY AND INSPECTION rr. 140,141 After iBiua Joluea; (Cutting 61 AD 628, 64 NTS 258). Before trial: where not Injurious to plaintiff (Bensinger 60 AD 303, 70 NYS 24). Delay of five years: where applicant misled by false misrepresentations (Fidelity 79 AD 614. 80 NYS 277). Trematnre: before establishing right to ac- counting ('Conrady 148 AD 776, 133 NTS 245; 'Moore 132 AD 707, 117 NYS 534), reformation (Moore 175 AD 972, 161 NYS 984); before issue joined in ejectment (Rhodes 52 AD 379, 65 NYS 111); where complaint amended after service of answer and before issue joined (Fleet 6 AD 48, 40 NYS 66). PBEVIOTTS DEMAND UNNECESSARV— Inspeotlon: of books and paper (Blumberg 19 AD 370, 46 NYS 302). DISTIiraVISXED FBOBK— Bill of particulars: (Romer 79 AD 100, 80 NYS 38; Liebmann 47 NYS 669). Depositions: taking of (Quimby 170 NYS 9f9). Dnoes tecnm: (Shogry 89 Mis 145, 140 NYS 1014; Murdock 154 AD 854, 140 NYS 41). Bzamlnatlon before trial: (Harby 189 AD 769, 178 NYS 818; Strong 182 AD 869,^ 170 NYS 414; Gottlieb 157 AD 251, 141 NTS 860; Manthey 76 AD 579, 78 NYS 596; Sayr© 70 AD 329, 75 NYS 286; Drake 12 Mis 65, 33 NYS 177; Green 15 Hun 432); of corporate officers (Ryan 108 NYS 371; Sands 98 AD 148, 90 NTS 749; Thompson 95 AD 542, 89 NYS 4; Hart 41 Mis 436, 84 NYS 1065). Insimction: and taking copy (See PxSpire 25 AD 339, 49 NYS 723); photographic copy (Heydemann [Nov 29, 1921] 66 NYLJ 709). Interroaratorles: (Lazsaro 10 Mis 230. 30 NTS 1066). Uandamus: to compel inspection of foreign corporation's books (Rappeleye 43 AD 84, 60 NTS 338). Supplementary proceedings: to execution (Dawson 52 Hun 527, 5 NTS 703). BABS OTHEB REMEDIES— Bill of partlcnlara: (Lyons 175 NTS 243; Way MIg Co 66 How 152). Inspection: of boolts and pap€rs by order for examination before trial (Wahed 13 NTS 96; Keenan 4 NTS 66). BARBED BY OTHER REMEDIES — Duces tecnm: (Redmond 182 AD 307, 169 NTS 239; Cohen 162 AD 611, 147 NTS 915; Dalzell 5 Mis 493. 25 NTS 800; Perls 10 NTS 110; Lyett 3 NTS 643); at examination before trial (Rheims 185 AD 61, 172 NTS 543; Kellty 31 AD 115, 52 NTS 550). Rule 141. Hearing of application; order. On the return of such order to show cause, the court shall make such an order with respect to the discovery or inspection prayed for as justice requires. The order for discovery or inspection shall specify the time, place and manner in which it is to be made. The order may stay any other proceedings in the action until such order shall have Keen complied with or vacated. EDITORIAIi NOTES — Sonrce: first sentence Is CCP §. 807, first sentence; last two sentences are General Rule of Practice 16, rewritten. CCP § 807 revised from CP § 388, last sentence and 2 RS 199, pt 3, c 1, tit 3, § 26. General Rule of Practice 16 was formerly Law Rule 30; Rules 29 and 30 of 1847; Rules 10 and 11 of 1849; Rules 10 and 11 of 1852; Rules 16 and 17 of 1858; Rules 20, 21 and 22 of 1871, 1874; Rules 16 and 17 of 1877, 1880, 1884, 1888, 1896; Rule 16 of 1900, 1910, 1913. General Rule 16 read: " The order for grant- ing 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 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 opportunity for inspection shall con- tinue. " The court or judge may direct that the order directing the discovery 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." Text In Italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. DISCOVERT AILIiOWED — A14: of judgment execution (*Bhrich 119 NTS 395). BlU of partlcnlars: to frame (Cornish S3 Huh 40, 5 NTS 889). Canse of action: not shown ('Marrone 14 NTS 199). .Commissions; to determine amount of, based on business procured (Brigham 48 AD 144, 62 NTS 706; Churchill 89 Hun 613, 35 NTS 310; Wilson 106 Mis 442. 174 NTS 684; Albany 12 Mis 167, 33 NTS 600, afd 86 Hun 620, 33 NTS 1125; Frowein 12 NTS 526); general examination ('Ortman 160 AD 258, 145 NTS 541; *Funger 132 AD 837, 117 NTS 799; 'Strauss 131 AD 823, 116 NTS 95; •Harbough 110 AD 633, 97 NTS 350); gross receipts (•Harbison 5 Hun 454); net prof- its, general examination ('Keilty 31 AD 115, 52 NTS 550); profits (Webb 133 AD 420, 117 NS 643; Vieller 75 Hun 21, 26 NTS 1051); where no definite share of profits agreed on ('Lane 128 AD 266, 112 NTS 655). Corporation action against for: accounting where contract grants inspection (Land Value 190 AD 808, 180 NTS 784); libel (Palmer 67 AD 64, 73 NTS 456); mainte- nance of monopoly (PvAmerican 54 Mis 67, 105 NTS 650); preferred stock dividends (Rutter 24 NTS 215). Discretionary: (Clyde 87 NT 625). TlsUng escnrsion: ('Leach 4 AD 613 38 NTS 886; »Brownell 20 Hun 517; 'Seligman 20 AbNCJ 210). Hardship: to other party ('Ward 29 NTS 186). Inability: to enforce order ('Jaffe 181 AD 16, 167 NTS 1039). Incriminating: party ('Kellog Z2i Mis 327, 66 NTS 542). Not In possession: of party ('Brock 66 AD 609, 72 NYS 831). Part of large docnment; also containing un- necessary information (Umfreville 46 AD 594, 62 NYS 20). Period Involved in action: net earnings be- yond ('Lockwood 178 AD 695, 165 NTS 850). Prepare pleadings: (Cuban Telephone Co 187 NTS 817). Refresh memory; ('Christman 138 AD 654, 122 NTS 676). To show; agency (Societe 128 AD 919, 112 NTS 830); cause of action, existence of ('Walsh 48 AD 333, 62 NTS 833); circula- tion of magazine in action for rebate in advertisement price (Cream 159 AD 761, 144 NYS 873); concealment of property, by assignor for benefit of creditors (York 13 AD 227, 43 NTS 81); damages from evic- tion from hotel property (Iroquois 126 AD 814, 111 NTS 172); damages with accuracy (•Stanton 47 AD 621. 62 NTS 291; 'Brum- mer 47 AD 470. 62 NTS 241; 'Taymore 38 AD 144, 66 NTS 667; 'Pearls 10 NTS 110); r. 141 OLEVENOEB'8 RULES OF CIVIL PRAQTICE 140 fraudulent assignment (Bundschu 23 NTS ii V,^?;'S2*!S^'"ty °* wi"6 (Rlech 73 Mis 20. 130 NTS 827); net profits (Sullivan 148 ■*^D 243, 132 NTS 344); partnership (Stll- w/11 85 NT 649); profits (Lord 13 Mis 48, fL-"^^ ^2); royalties (C&C Electric 35 AD 42b, 64 NTS 810); purchases percentage of (HofEman 12 Mis 3, 33 NTS 23); sales of others at lower rates (*McInnes 27 Mis 124, 57 NTS 356); services rendered in keep- ing books demanded (Miner 4 Hun 132). want of jurisdiction: of action ("Snow 80 AD 512, 80 NTS 512). .Want of necessity: information otherwise obtainable ('Lowenthal 20 AD 330, 46 NTS 818); Immaterial (Marx 28 Mis 490, 59 NTS 693); Irrelevant (Hoag 177 AD 433, 164 NTS 529; Associated 172 AD 650, 158 NTS 725; Clownlak 90 Mis 42, 152 NTS 740); matter of evidence having no place in complaint (•Leach 4 AD 613, 38 NTS 886); no ad- vantage to petitioner (Woodward 28 Mis 602, 59 NTS 1080; 'Watts 56 Supr 592); opportunity to examine (Beams 86 Hun 258, 33 NTS 262; Stickier 43 Hun 95; Broad- way 92 Mis 293, 155 NTS 528; Cross 1 NTS 263, 15 StR 965); sufficient facts In posses- sion of party (Snow 80 AD 40, 80 NTS 512; Cutting 51 AD 628, 64 NTS 258; Earle 1 AD 136, 36 NTS 833; Bien 2 Mis 169, 21 NTS 618; •Woods 25 How 522, 1 Rob 681). fah^ttre to fbodttce excused — Books in custody: of deceased partner firm dissolved (Holly 86 Hun 42, 33 NTS 287). Evasive answer: ('Union 49 AD 406, 63 NTS 381; •Hicks 10 AbP 129). Inability: to find books after removal from one office to another (•Holly 86 Hun 42, 33 NTS 287). £oss of possession: or control unexplained (•McCreery 6 AD 170, 39 NTS 1036; Perrow 52 Hun 115, 4 NTS 795). Not in possession: on certain date without showing not within present control (•Sibley 80 Hun 561. 30 NTS 604). Party not served: order served on attorney (Smith 15 StR 733). Possession positively denlea on oath: (Ahoyke 4 AbP 41); delivery to applicant alleged on Information and belief (Brad- street 4 AbP 233). KecoUectlon of possession denied: inability to find and belief of loss or misplacement alleged ('Southart 2 Sand 672, 2 CodeR 83) Stirrln? up litigation: ('Palmer 67 AD 64. 73 NTS 456; Umfrevile 46 AD 594, 62 NTS 20). Trouble and expense: (*Cuban Tel Co 187 NTS 817). BOOKS, DOCUMENTS OB OTHER PAPERS SISCOVERABIiE — Assl^rnnient: in action based thereon (Prlt- chard 188 NTS 548). BanK books: (O'Gorman 92 Hun 605, 36 NTS 401). Bins of lading-: (Amsinck 12 WkD 573). Certificate of deposit: (Sellgman 20 AbNC 210). Checks and orders: (Mlerisch 65 NTS 565). Contract; (Title 66 Mis 157, 121 NTS 226; Smith 16 NTS 417; Hepburn 20 Hun 535; Pindar 33 Barb 140); of subscription (Sib- ley 80 Hun 661, 30 NTS 603); and assign- ment thereof (Bensinger 60 AD 303, 70 NTS 24); altho applicant recollects tenor of instrument (Perrow 52 Hun 115, 4 NTS 795). Copies: of letters and accounts, originals lost (Harding 18 NTS 918). Corporation books; books of account (Hotch- kiss 140 AD 525, 125 NTS 462; Martin 62 Hun 557, 17 NTS 133; Amsinck 12 WkD 573); books of original entries (Continen- tal 29 AD 282, 51 NTS 497); letters con- cerning pool of sale of stock in order to counterclaim profits (Hotchkiss 140 AD 525, 125 NTS 462); transfer book and list of stockholders denial not reviewable (•Sage 70 NT 220). Deed; (Peck 57 Mis 94, 107 NTS 925). Drafts: in action on foreign judgment based on such drafts (•Schultze 145 AD 276, 130 NTS 53). Toreign corporation's books: books out of state (Sullivan 148 AD 243, 132 NTS 344; National 120 AD 746, 105 NTS 657; Wilson 106 Mis 442, 174 NTS 684); sworn copies of contents (Ervin 22 Hun 566). Insured's books: of original entries (Fidelity 79 AD 614, 80 NTS 277). lease: (Brown 26 Mis 128, 56 NTS 923). I^ederer: (Hoffman 12 Mis 3, 33 NTS 23). letters: (Amsinck 12 WkD 573). Orders: of railroad causing injury (Hoag 177 AD 433, 164 NTS 529). Partnership books: action between partners after dissolution (Hewlett 55 AD 614, 67 NTS 267); action by deceased partner's executor against surviving partner to cor- rect account (Livingston 12 Hun 121); action by deceased partner's devisees against surviving partner for accounting (Plelschman 31 Mis 216, 65 NTS 93, afd 54 AD 202, 66 NTS 631, afd 54 AD 632, 66 NTS 1131; Marline 26 Hun 559); action for accounting by purchaser on partner's third interest (Gould Roofing Co 4 AD 107, 38 NTS 915). ITo partnership existing': (*Knock 14 NTS 477). Photographic copies: of alleged forged in- strument (Corbet 67 Mis 175, 122 NTS 268). Picture: (•Wilson 57 Mis 365, 109 NTS 662; Wilson 57 Mis 363, 109 NTS 660). Private check book: and accounts in account- ing action on trial (•Shiverick 185 AD 338, 173 NTS 90). Release: of royalty claim (DeKoven 52 Mis 93, 101 NTS 586). Reports: of railroad employees on cause of injury (•Falco 161 AD 735, 146 NTS 1024). Sale books; (Hoffman 12 Mis 3, 33 NTS 23). ARTICI^E OF PROPEBTV DISCOVERABLE Burled body: (•Danahy 70 Mis 25, 125 NTS 444). Causing Injury; engine ('Auerback 66 AD 201. 73 NTS 118); three years after accident (•Cuca 138 AD 421. 122 NTS 732); machine (Chounacki 76 Mis 427, 134 NTS 1090; •Cooke 29 Hun 641, rvd 99 NT 659); used in filling bottle (Donoghue 152 AD 162, 136 NTS 657; no particular article alleged to have caused injury (•Clowniak 90 Mis 42, 152 NTS 740); premises three years after accident ('Cuca 138 AD 421, 122 NTS 732); rope (Dugan 160 AD 11, 145 NTS 31); valve (Wilson 197 F 88); water used in filling boiler (Beyer 129 AD 724, 124 NTS 463). machines: subject of contract in controversy, where sufficiency thereof impossible of de- termination ('Flna 55 Mis 325. 105 NTS 482). Person, physical examination oil by experts (•Roberts 29 Hun 154). Plant: (Matera 155 NTS 760). Premises: (•Kennedy 33 Mis 726, 68 NTS 1053). Safe breaking of: to find books (•Krooks 28 NTS 641). Tree In boundary Une dispute: ('Hayden 84 Hun 150. 32 NTS 507). Vault: construction of, in action for goods stolen from (Rosen 82 Mis 407. 143 NTS 726); contents of. in action by executor to obtain deceased's money and securities (•Hallenbeck 65 AD 167, 72 NTS 488). PARTIES ENTITI.ED — Convict: to examine photographs, books and documents in archives of penitentiary, when validity of his pardon and citizenship In question (PvHayes 84 Mis 263, 147 NTS 102). Creditor; decedent's estate, no accounting necessary (•Rice 58 Mis 381, 111 NTS 5). Debtor: in action by judgment creditor to set aside assignment, discovery of agree- ments and assignments from codefendant (•Raiferty 34 Hun 544). 141 DISCOVERY AND INSPECTION rr. 141,142 DeTlsees; In accounting by executor ag-ainst testator's surviving partner (Applebee 21 NYS 890). Bolder of certificate of Indebtedness: cor- porate books (Nevins 166 AD 219, 151 NTS 139). One subrogated; to rights of executor, books of deceased's firm (*Murdock 154 AD 854, 140 NY 41). Person not party; to action, receiver ('Brad- ley 137 AD 751, 122 NTS 626). Principal: agent's letters, vouchers and books relating to agency (Harding 18 NTS 918). Stockholder: owning 1 per cent of stock of corporation less than ('Pierson 28 Mis 726, 59 NTS 1003. afd 44 AD 215, 60 NTS 671). PARTIES KIABI.I:— Directors: not parties to action, corporate records not shown to be in their custody (•Bowman 78 NT 599). Von-resldent diefendant: trustee in bank- ruptcy ("JafCe 181 AD 16, 167 NTS 1039). Becelver of bank: after dissolution at stock- holder's instance ('PvCataract 25 NTS 129). Surviving' director and trustee: of dissolved corporation, by executor of deceased trustee in equitable accounting (Murphy 101 Mis 443, 167 NTS 55). ORDER SUrPICIENT— All other books: which contain any accounts or entries showing or tending to show, a named bond transaction (*Walker 19 AbP 111). All private papers or books: ('May 184 AD 537, 172 NTS 573). "Books, accounts, docu- ments, and papers pertaining to" a named business "be open to the inspection of" plaintiff's counsel (•CuEtis 146 AD 246, 130 NTS 910). Peremptory order: granted ex parte (♦Dick 41 Hun 603). Sworn statement: from books and copy of balance sheet ('Pfaelzer 54 Mis 579. 104 NTS 847). ON 'WTHOM ORDER SERVED — Corporation's attorney: (Rossner 20 Hun 182). LIMITED TO — Issues: raised bv counterclaim (Strong 182 AD 869, 170 NTS 414). Period: during which cause of action accrued (Lockwood 165 NTS 850). Partnership books: inspection of. to time of assignment ('Gould 4 AD 107, 38 NTS 915). Rule 142. Referee to superintend discovery or inspection. If discovery or inspec- tion be directed, a referee may be appointed by the order to direct and superintend it, whose certificate, unless set aside by the court, is presumptive, and, except in proceed- ings for contempt, conclusive evidence of compliance or non-compliance with tlie terms of the order. EDITORIAZ. NOTES — Source: CCP § 807, second sentence, as re- vised from 2 RS 199, pt 3, c 1, tit 3, § 26, and from CP § 388, last sentence. Text In Italics is new matter, inserted June 17, 1921. Star (*) means reed Not into HEADDINE in capitals, For illustration see Rule 1. APPOINTMENT OP REFEREE PROPER — Ascertain and report: whether previous or- der directing discovery had been fully com- plied with (*Hoyt 8 How 89, 1 Duer 652). COMPILIANCE 'WITH ORDER SXTFPICIENT Submission to referee: of letters alleged to be authentic by plaintiff and to be forgeries by defendant (Banes 130 AD 465, 114 NTS 986). COMPI^IANCE COMPEIi£ED — By attachment: (Ackroyd 2 AbNS 380). rr. 145, 146 OLEVENGER'8 RULES OF CIVIL PRACTICE 142 TITLE 19 CHANGE OF VENUE Eule 145. Stay of proceedings for change of venue. r46. Demand for change of place of trial. 147. 'Taking effect of order changing place of trial. EDITORIAIi NOTES— Civil Practice Act references: Place of trial at residence, CPA § 182; Place of trial of real property action, CPA § 183; Place of trial where cause of action arose, CPA § 184; Place of trial of issue triable by court, CPA § 185; Place of trial if proper county not designated, CPA § 186: Change of place of trial, CPA § 187; Effect of change of place of trial, CPA S 188; Change of place of trial of actions pending in other courts, CPA § 189; Removal of action to supreme court from county court, CPA § 190. Eule 145. Stay of proceedings for change of venue. No 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 practicable 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. EDITOBIAI. NOTES — Source: General Rule of Practice 48, first pa>ragraph, verbatim, except heading; last paragraph omitted as covered by CPA § 187, subdivision 3. General Rule 48 was for- merly 47 and 48 of 1849; Rules 44 and 45 of 1852; Rules 58 and 59 of 1858; Rules 59 ana 60 of 1871, 1874; Rules 50 and 51 of 1877; Rules 47 and 48 of 1880, 1884, 1888, 1896, 1900, 1910. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Stay generally, CPA § 167; When stay of proceedings not to exceed twenty days, CPA § 169. Star (*) means read Not into KEASIiINE in capitals. For illustration see Rule 1. UOTION NOT TIKEIiY — After adjonrnment to next term: by agree- ment of counsel upon defendant's request (Rodie 22 Mis 409, 49 NYS 178). After caB« noticed for trial; 20 months (As- sets Collecting Co 168 AD 145, 153 NTS 109). After issue joined: nearly a year (Darragh 2 Hun 337); over a year (Becker 77 Hun 11, 28 NYS 279); year and a half (Hudson Co Consumers Brewing Co 190 AD 866, 181 NTS 62); two years (Hoffman 12 Hun 83); plaintiff losing circuit by delay (Chapin. 4 Cow 554; Moreland 1 Denio 660; Miller 1 How 54); trial actually had (Haines 95 AD 275, 88 NTS 589; Quinn 12 Hun 633). DEIiAY IN MOVING- NOT EXCTTSED — Counsel's ignorance: because of (Moreland 1 Denio 660). Eule 146. Demand for change of place of trial. If the defendant in an action m the supreme court demand that the action be tried in the proper county, his attorney must serve on the plaintiff's attorney with the answer, or before service of the answer, a written demand accordingly. The demand must specify the county where the defendant requires the action to be tried. If the plaintiff's attorney fail to serve his written consent to the change as proposed by the defendant within five days after service of the demand, the defendant's attorney, within ten days thereafter, may serve notice of a motion to change the place of trial. EDITORIAIi NOTES — Source: CCP § 986 verbatim, except heading and matter in italics. CCP § 986 revised from CP § 126, first sentence. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADIiINE in capitals. For Illustration see Rule 1. CONSTRUCTION— Rule directory: (Goldfeder 189 AD 184, 178 NTS 581; McConlhe 76 Hun 116, 2V NTS 832) Rule 'mandatory: (Whitehead Bros 69 Mis 208, 126 NTS 414). DEMAND NECESSARY — Change as matter of right: and not as mat- ter of discretion (Hudson Co Consumers Brewing Co 190 AD 866, 181 NTS 62; Hoff- man 153 AD 191, 138 NTS 356; Navratil 26 AD 460, 50 NTS 225; Larkin 68 AD 86, 74 NTS 73; Whitehead Bros Co 2 CivPNS 200, 126 NTS 414; See Kimball 19 WkD 481). Convenience of witnesses: change for (♦Viertels 182 AD 92, 169 NTS 497; 'Palmer 151 AD 916, 136 NTS 85; »Hinchman 7 How 462). Court cannot changre venue of own motion; (Phillips 108 AD 9, 95 NTS 469; 'Goldfeder 189 AD 184, 178 NTS 581; 'State Bd of Pharmacy 116 AD 495, 101 NTS 769); for convenience of witnesses ('Cronin 124 AD 643, 108 NTS 963; 'McConihe 76 Hun 116, 27 NTS 832). Office or place of business of defendant; change to county of (Vermont Cent RR Co 6 How 106. 1 CodeR 401). Neither party residintr in county where ac- tion brought: change upon ground that (As- sets Collecting Co 168 AD 145, 153 NTS 109). Residence of parties: change to county of (Hoffman 153 AD 191, 138 NTS 356). DEMAND TIMEIiY — After answer; ('Milligan 2 CodeR 118); to original complaint but before answering amended complaint (Shepaxd 76 Hun 598. 28 NTS 218); but on same day (Ganz 29 NTS 810). After default In answering': ('Vale 12 ClvP 102); subsequent service of answer does not give right to demand change ('Spaulding 5 AD 621, 39 NYS 203, afd 152 NT 87). After service of amended complaint; altho rior motion for change denied (Veeder 83 Y 156). pri m 143 CHANGE OF VENTJE rr. 146, 147 Before answer: (Washington 103 AD 423, 9^! NYS i994; Knick T Co 41 Mis 204, 83 NYS 930). Before formal notice: of appearance (*Van Dyolc 18 Hun 376). DEU&irs •ciacEi.i — Time prescribed: within (Lamson Consol Store Ser Co 6 NYS 889); not within (•Steinmetz [Jan 30, 1922] 66 NYLJ 1520). Vrith answer: (Mairs 3 CodeR 138); amended (Penniman 133 NY 442; Harmon 56 AD 160, 67 NYS 561; 'Penniman 62 Hun 473, 17 NYS 2). DEMAND SVrriCIEHT— "Office and place of business:" change to county where railroad defendant had its (Poland 88 AD 281, 85 NYS 8). Proper county: change to (North Shore In- dustrial Co 108 AD 232, 95 NYS 758; 12 NYS 260 note) ; and for convenience of wit- nesses (Dembitz 3 CivPNS 69, 132 NYS 593). Improper county: demand for change to (•Beardsley 4 How 81). Bealty situated: change to county where (Wyatt 42 Hun 502). Residence: of defendant, change to (Upjohn 156 AD 147, 140 NYS 1104; Barbera 154 AD 322, 138 NYS 1000; Seymour 137 AD 52, 122 NYS 183; New Haven Clock Co 61 Hun 625, 16 NYS 126; Faherty 43 Hun 432); of both parties, change to (Finch School 144 AD 687. 129 NYS 1). WKO MA'S' NOT IiIAKi: DEMAKD — Defendant in default: for want of answer (Vale 12 CivP 102). BIQKT TO CHANGE 'WAIVED — Laches: (Dembitz 147 AD 583, 132 NYS 593). Omission to make demand: or apply for order changing venue (Houck 17 How 520). Omission to state particular grround: waiver thereof (Whitehead Bros Co 2 CivPNS 200, 126 NYS 414). MOTION EOK CHANGE NOT BAKKED — Amendment of complaint; by naming county other than that designated in original com- plaint (Moulton 1 AbNC 193. 52 How 182; Barbera 154 AD 322, 138 NYS 1000; Sweet- ser 22 AbNC 319; Toll 12 How 79). Denial of motion to chauere venue: as penalty for plaintiff's anticipated default (Binder 68 AD 281, 74 NYS 54). NOTICE OP MOTION NECESSARY— Demand alone Insufficient: where plaintiff does not consent (Hasbrouck 3 CodeR 39, 4 How 342). NOTICE OF MOTION TIMEI.Y— Expiration of period deslg'nated: after (•Phillips 108 AD 9, 95 NYS 469; »Duch6 2 CivP 268, 63 How 516); motion for conveni- ence of witnesses (Kubiack 35 AD 186, 54 NYS 773). Expiration of time allowed plaintiff to con- sent: before (*See Knickerbocker Tr Co 41 Mis 204, 83 NYS 930). Order strlMng out answer: after reversal of (•Taylor 32 StR 843, 11 NYS 29). Service by mail: 27 days after demand under § 798 CCP (See State Board of Pharmacy 116 AD 495, 101 NYS 769); 30 days after demand under § 798 CCP (Binder 68 AD 281, 74 NYS 54); 16 days after demand un- der § 798 CCP (Lesser 23 StR 396; 5 NYS 97; 12 NYS 263 note). Service of answer; before (Stimson 29 StR 21). Service of demand; before ('Vermont Cent RR Co 6 How 106, 1 CodeR 401). Service of demand with am.euded answer: after, altho prior demand had been served with answer (Harmon 56 AD 160, 67 NYS 561). NOTICE OF MOTION SUFFICIENT— Convenience of witnesses: for change for (Bowles 38 Hun 507). Defendant's residence: change to (Reming- ton 54 AD 358, 66 NYS 560; Stimson 29 StR 21, 9 NYS 238); altho amended com- plaint named plaintiff's residence (Rector 38 Hun 293, afd 101 NY 656). Nonservice on codefendant; whose time for answering has not expired, unavailable to defendant (North Shore Industrial Co 108 AD 232, 95 NYS 758). Proper county; change to (Washington 103 AD 423, 92 NYS 994). Rule 147. Taking effect of order changing place of trial. An order changing the place of trial of an action in the supreme court shall become effective upon the entry thereof in the office o£ the clerk of the county from which the place of trial is changed ; but for the purposes of an appeal therefrom, the place of trial is deemed unchanged. EDITOBIAI^ NOTES— Source: COP § 989. as amended by L 1877, c 416. CCP § 989 read: "An order to change the place of trial takes effect, upon the entry thereof, in the office of the clerk of the county, from which the place of trial Is changed. But for the purposes of the place of hearing a motion to set it aside, or an appeal therefrom, the place of trial is deemed unchanged." Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. r. Ii50 OLEVENQER'S RULES OF CIVIL PRACTICE 144 TITLE 20 NOTICE OF TRIAL AND OF ISSUE Rule 150. Notice of trial. 151. Note of issue. Eule 150. Notice of trial. At any time after the joinder of issue and at least fourteen days before the commencement of the term, or the opening of an adjourned term, either party may serve a notice of trial. EDITOBIAl^ NOTES — Source: OCP § 977, first sentence, except italicized matter which covers CCP § 34. CCP § 977 revised from CP § 256, as amended by L. 1876, c 431, § 9; L, 1877, c 416; L 1882, o 96; L 1896, c 565; L 1898, c 70; L 1899, c 18; L. 1903, c 61; L, 1904, c 474; L 1907, c 211; L 1909, c 65; L 1911, c 218; L 1912, c 96; L, 1915, c 60. CCP § 34 added by L 1909, c 65. CCP § 977 read: "At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. The party serving the notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law; and, if an issue of fact, whether it is triable by jury, or by the court, with- out a jury and the particular nature of the same and the object of the action. The note of issue must be filed at least twelve days before the commencement of the term. The clerk must thereupon 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 counties of New York, Kings, Bronx, Queens, Nassau, Richmond, Albany, Erie, Niagara, Monroe, Onondaga, Schenectady, and Westchester, 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 calendar until it is disposed of." Text in italics Is new matter, inserted June 17, 1921. Editor's Note: The last sentence of CCP § 977, which, under the doctrine of express mention and implied exclusion, was held to require a new notice of trial to be served and a new note of issue to be filed for a succeeding term in all counties not speci- fied in said sentence, has been omitted en- tirely both from the Civil Practice Act and the Rules of Civil Practice. Notwith- standing that the omission of such sentence removed the necessity for serving a new notice of trial or for filing a new note of issue for a succeeding term in any county, yet the Appellate Divisions of the First and Second Departments have uselessly re- copied the last sentence of CCP § 977 into their rules, as shown below. Special Rule in First Department: "In the counties of New York and Bronx, where a party has served a notice of trial and filed a note of issue for a term at which the cause 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." (Feb 7, 1922, 66 NYLJ 1624). This Special Rule Is known as Rule 18 of the Special Term, Rules in New York County, Rule 10 of the Trial Term Rules in New York Couijty, and Rule 11 of Special and Trial Term Rules in Bronx County. It is dated Jan- uary 16, 1922, effective as of September 30, 1921. Speodal Term Bnle in Second Department: "In the Counties of Kings, Queens, Nassau, Richmond and Westchester, 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 calendar until it is disposed of." This Special Rule is dated January 25, 1922, effective as of September 30, 1921. Star (*) means read Not into EEADLIKE in capitals. For illustration see Rule 1. HISTORY-^ (Morse 71 AD 351, 75 NTS 976). ISSUE JOINED— After last pleadin^r: which presents issues to be tried is served (Grant 129 AD 77, 113' NYS 502). After service of: amended answer (Joyce 99 Mis 361, 163 NTS 623); answer (Gross- man 71 Mis 143, 128 NTS 7); demurrer (Rosenbach 2 F 23; Townsend 18 CivP 213, 9 NYS 629); rely (Grant 129 AD 77, 113 NY'S 502). Before service of: answer (*Sanders 44 Mis 171, 89 NYS 785). NOTICE NECESSABV — Calendar: before case can go upon (Fisher Malting Co 92 AD 251, 87 NYS 37: Haskin 29 AD 370, 51 NYS 542). Certiorari: return to denying no allegations of petition and not setting up new matter (•PxPhoenix Assur Co 52 Mis 311, 102 NTS 189). Cross-notice of trial: unnecessary to enable court to dispose of demurrer as contested motion, both parties appearing at trial thereof ('Am Men's etc Assn 190 AD 164, 179 NYS 207). Dem.nrrer: before disposing of Issue raised by (Ventriniglia 138 AD 274, 122 NTS 966). Full notice necessary: unless waived or con- ditions imposed on granting favor (Leland 3 Daly 309, 11 AbNS 231); order granting leave to serve same providing that no new notice should be served ('Myers 16 Daly 410, 12 NTS 4); order made that case retain place on calendar (*Mossein 117 AD 820, 102 NTS 1013). New notice necessary: after amendment of complaint (Miller 84 NTS 503; Keilty 25 Mis 351, '55 NTS 744; Fisher 12 Mis 207, 34 NYS 27; Romaine 24 NTS 67, 54 StR 115; Graham 13 NTS 562, afg 19 CivP 452; McBridge 19 CivP 41, 11 NTS 626; Ostrander 20 Hun 421); after service of amended an- swer (Grossman 71 Mis 143, 128 NYS 7; Murphy 127 AD 448, 112 NTS 152; Woolett 36 Mis 494, 73 NTS 1005; Leonard 31 AD 137, 52 NTS 772; Haskin 29 AD 370, Bl NTS 542; Color 19 AD 236, 46 NTS 117; Yates 18 Mis 295, 42 NTS 109; Grlndal 40 StR 233,-15 NTS 823; Gair 20 CivP 233, 145 NOTICE OF TRIAL AND OF ISSUE IT. 150, 151 15 NTS 147): altho no counterclaim set up (Jones 30 Mis 65, 62 NTS 883), in bad faith ('Mlnrath 66 Hun 632, 21 NYS 204); after service of reply (Grant 129 AD 77, 113 NYS 502; 'Ward 103 AD 375, 92 NYS 1107, rvg 45 Mis 169, 91 NTS 905); after service of supplemental complaint (•Lovatt 35 Hun 553); for succeeding term, care not readied in term for whicii noticed (♦Harden 28 AD 301, 50 NYS 1002); upon new trial, new calendar made up pending appeal (»Watson 44 Hun 562, 12 CivP 173, 18 AbNC 469). Referee: notice of trial before (Mohrmann 2 Hun 674). Betentlon notice: by plaintiff not a waiver of right to insist upon trial under prior stipulation ('Hooper 20 CivP 226, 13 NYS 212). Snccessive notices: one notice sufficient (♦Maries 27 AD 160, 50 NYS 622). ACCEPTANCE OF NOTICE REQUIRED— After refusal: because costs of former mo- tions had not been paid (♦Koehler 7 CivP 81). NOTICE PROPER — Certiorari: return to denying no allegations of petition and not setting up new matter (•PxPhoenix Assur Co 52 Mis 311, 102 NYS 189). Defendants: altho all had not been served (Ligouri 74 AD 327, 77 NTS 572). Subsequent jury term: notice for, stipula- tion for trial w'ithout jury being limited to particular term mentioned (Jackson 69 Mis 213, 126 NYS 712). NOTICE STTPPICIENT— Clerical error; notice for 3rd Monday in- stead of 3rd Tuesday of November, no one being misled (Bander 4 Cow 60); notice for 3rd Tuesday instead of 3rd Monday of June (NY Cent Ins Co 13 How 535); Tues- day, notice for, instead of Monday the 18th of the month (Wolfe 3 Cai 86). Porm: no particular leind required (Town- send 18 OivP 213, 9 NYS 629). Pendency of two actions: notice failing to apprise defendant of cause to be tried (*Lisher 1 Wend 22). "Take notice of rule to plesid": indorsed on declaration served on attorney (Douw 11 Wend 178). Test of sufficient: of notice improperly made by motion to compel acceptance (Laulerty 25 Mis 624, 56 NTS 121). WHO aXAY SERVE — Defendant: for term succeeding that for which plaintiff had noticed case for trial (•Montgomery 91 AD 18, 86 NYS 344); one of many, issue joined as to him (Simon 179 AD 273, 166 NYS 466). Plaintiff: (Grossman 71 Mis 143, 128 NYS 57; American Exch Bk; 58 AD 320, 68 NYS 1097). 'WKO ENTITI.ED TO — Oodef endant : who has appeared but not answered (Tracy 1 EDSmith 349). Guardian ad. litem: for infant may accept short notice of trial (Newins 19 Hun 306). SERVICE OF NOTICE TIMEI^Y — After answer: altho liable to be defeated by amended pleading (Danger 54 Mis 301, 103 NYS 1086); right to serve amended answer not having been exercised within time limited (Cook 103 NYS 581). Amendment: of notice nunc pro tunc not permitted ('Gair 20 CivP 233, 15 NYS 147). Before amended answer: but on same day (•Grossman 71 Mis 143, 128 NYS 7; 'Wal- lace 27 AD 457, 50 NYS 329). Issne joined: after, altho before expiration of adversary's right to amend (Townsend 18 CivP 213, 9 NYS 629; 'Oneida Nat Bk 58 Barb 508; 'Sanders 44 Mis 171, 89 NYS 785); as to all but one defaulting defend- ant (Grant 129 AD 77, 113 NYS 502). Less than fourteen days: before term ('Rob- erts 76 AD 433, 78 NYS 778; 'Veinstock 63 AD 16, 71 NYS 195; 'Joyce 99 Mis 361, 163 NYS 623; 'Rosenbach 2 F 23). Partition: before having issued to be tried by jury stated, in action for (Jackson 69 Mis 213, 126 NYS 712). Reply: before plaintiff's time to, had ex- pired ('Meislahn 45 StR 676). Sixteen days before term: when served by mail (Germania Life Ins Co- 29 Mis 424, 61 NYS 942). Stay: served by plaintiffs while under ('Roberts 76 AD 433, 78 NYS 778). Succeeding' term: notice given for, to that for which note of issue filed ('Leonard 31 AD 137, 52 NYS 772; 'Mangone 21 Mis 565, 48 NYS 644). WHO MAT OBJECT TO PAILURE TO SERVE — Codefendant; on failure of another defend- ant to serve it ('Belden 77. Mis 282, 136 NYS 287). NOTICE WAIVED — Appearance: and no objection to want of service of notice by defendant until after jury impaneled (Haberstich 6 CivP 82, 67 How 318); of both parties and setting case for trial (Haven 23 NTS 192, 52 StR 450). Defendants' service of notice: of trial does not waive their right to take advantage of plaintiff's neglect to serve notice after new issues joined by service of amended an- swer ('Tales 18 Mis 295, 42 NYS 109). New notice: by consenting to adjournment (Brady 11 NYS 424, 19 CivP 130, 33 StR 425). Postponement: of trial procured by plaintiff (Rosenthal 60 Mis 553, 112 NYS 449). Retention of void notice: served before per- sonal service of copy complaint demanded (•Sanders 44 Mis 171, 89 NYS 785). Stipulation: (Jones 5 WkD 422; 'Woolett 36 Mis 494, 73 NYS 1005); made after com- plaint served extending defendant's time to plead stating " date of issue to be of this date" refers to issue to be joined by pleading to be prepared and does not waive service of new notice of trial after joinder of new issue subsequently created ('Ro- maine 24 NYS 67, 54 StR 115), new notice of trial after amendment of complaint (Klenert 17 Mis 69, 39 NYS 836; Hooper 20 CivP 226, 13 NYS 212; •Keilty 25 Mis 351, 55 NYS 744). IRBSaUIiARITIES WAIVED — Delay of objection: until cause had appeared second time on calendar, neglecting to re- turn and moving for adjournment (Man- gone 21 Mis 565, 48 NTS 644). Noticing cause for trial: before issue joined estops party serving notice from object- ing (Oneida Nat Bk 58 Barb 508). Retention of notice: waives clerical mistake of using word Tuesday instead of Monday (NT Cent Ins Co 13 How 535), mistake as to date (Weiss 7 Mis 539, 28 NTS 59), insufficient postage on notice by mail (Ger- mania Life Ins Co 29 Mis 424, 61 NTS 942), service before expiration of plain- tiff's time to reply (Meishlahn 45 StR 676). Stipulation: service of notice before answer waived by (Burroughs 15 AbNS 144). B,VX.E AFPI^ICABI^E— Notice of argument: on appeal to general term (*Walsh 19 AbP 363). Referee: notice of hearing before in special proceeding (•Ferrigan 42 AD 1, 58 NTS 920, afd 160 NT 689). RUI;E CITED— But not applied: (McCarron 15 AbNC 282- Carhart 2 Dem 627; Sipple 16 AbNC 445n; Forrest 1 F 459). Rule 151. Notice of issue. A party who has served a notice of trial shall file with the clerk a note of issue stating the title of the action, the names of the attorneys, the r. 161 OLEVENOER'8 RULES OF CIVIL PRACTICE 146 time when the last pleading was served, 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, and the particular nature and object of the action. The note of issue shall be filed at least twelve days before the commencement of the term. The clerk thereupon 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. EDITOBIAI^ NOTES — Sonrce: CCP § 977, second, third, fourth and fifth sentences covered. For revision and amendments see Rule 150. Text in Italics is new matter, inserted June 17, 1921. Special Rule in First Department: See Rule 150. Special Rule in Second Department: See Rule 150. Stair (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. KOTE OF ISSUE NECESSAB'S' — Calendar: before setting case down upon (Haskin 29 AD 370, 51 NYS 542). Costs: to entitle defendant after notice of trial to (Gilroy 30 Mis 830, 61 NTS 924). New note: after amendment of complaint (M;iller 84 NYS 503; Keilty 25 Mis 351, 55 NYS 744; Fisher 12 Mia 207, 34 NYS 27; Romaine 24 NYS 67, 54 StR 115; Graham 13 NTS 562, afg 19 CivP 452); after service of supplemental complaint (*Lovatt 35 Hun 553); plus order granting leave to serve same providing that no new notice of trial should be served (*Myers 16 Daly 410, 12 NTS 4); after service of amended answer (Murphy 127 AD 448, 112 NYS 152; Van Norden Tr Co 125 AD 369, 109 NYS 725; Woolett 36 Mis 494, 73 NYS 1005; Leonard 31 AD 137, 52 NYS 772; Haskin 29 AD 370, 51 NYS 542; Coler 19 AD 236, 46 NYS 117: Yates 18 Mis 295, 42 NYS 109); altho counterclaim not set up (Jones 30 Mis 65, 62 NYS 883); after service of reply (Ward 103 AD 375, 92 NYS 1107); failure to file in accordance with court rule requiring new note of issue upon making new calen- dar does not affect place of cause on old calendar governed by code (•Willner 61 Mis 73, 113 NYS 31, rvg 60 Mis 358, 113 NYS 633; *Schwartz 108 NYS 651; 'Rauch. berger 52 Mis 518, 102 NYS 561); for suc- ceeding term, case not reached in previous term (*Marden 28 AD 301, 50 NYS 1002); upon making up new calendar by order of appellate division of supreme court (Hix 78 AD 384, 79 NYS 1016). Notice of trial: not rendered void by failure to file note of issue (Am Exch Bk 58 AD 320, 68 NYS 1097). NOTE OF ISSUE FBOFEB — For term succeeding': that for which plain- tifC had noticed case for trial (♦Mont- gomery 91 AD 18, 86 NTS 344). NOTICE OF ISSUE tuviei^y — Notice of trial; before ('McMann 92 AD 249, 87 NTS 38; 'Gowing 22 CivP 10, IV NTS 771); omission to furnish excused, and counsel allowed to file, motion brought up on first day of term (Clinton 43 How 95). Succeeding term: filed for, to that for which cause noticed for trial (»Weaver 187 AD 827, 175 NYS 609; 'Culver 30 How 442, 4 Rob 681). CHANG-E OF FUSING DATE FERKISSIBKE Nunc pro tunc: ('Gair 20 CivP 233, 15 NTS 147). Reply: after having granted leave to serve (Hunnewell 30 StR 831, 9 NYS 540). NOTE OF ISSUE WAIVED — By stlpnlation: ('Weaver 187 AD 827, 175 NTS 609; •Woolett 36 Mis 494, 73 NTS 1005); new note, after amendment of com- plaint ('Keilty 25 Mis 351, 55 NTS 744), of answer (Leonard 31 AD 137, 52 NYS 772). New note: by receiving new notice of trial for subsequent term <*Ward 103 AD 375, 92 NTS 1107). ENTBV OF CAUSE ON CAKENDAB NECES- SAR-jr— Order dismissing complaint: before taking (Browning 7 How 487). CAUSE FROFERI^ir ENTERED ON CAL- ENDAR — Amended answer: changing date of issue, not entered according to that date ('Van Norden Tr Co 125 AD 369, 109 NTS 725). Comm.encement of term: after (*Tauzlede 16 NYS 377). Fourteen days: entered within, after issue joined by service of amended answer (•Joyce 99 Mis 361, 163 NYS 623). New issue: placed on calendar under date of, as formed by service of amended com- plaint (Ziegler 52 NYS 613). New trial: upon, cause cannot appear on day calendar without special order (Hodges 2 LawB 67). Note of issue not filed: (Fougner [Jan 21, 1922] 66 NTLJ 1409). Statutes: authorizing date for which cause must be placed on calendar must be fol- lowed (North 14 AbP 223). Succeeding' term: to that for which trial noticed (•Weaver 187 AD 827, 175 NYS 609; 'Culver 30 How 442, 4 Rob 681). CALENDAR FROFERLV PREPARED — Position in proper order: given by clerk (Hinman 18 AbNC 472). New issue: raised by amended answer con- trols position of cause on calendar (Black 2 AbNS 333). 147 TRIAL rr. 155, 156 TITLE 21 TRIAL Eule 155. Order containing stay. 156. Motion for dismissal of complaint. 157. Settlement of issues for trial by jury. 158. Terms at which issues of fact tria;ble. 159. Stipulation for trial elsewliere than at court house. 1'60. Papers to be furnished on trial. 161. Opening and closing speeches and examinations. 162. Production of books and papers by library associations, public departments and officers. 163. Application for order to produce prisoner as a witness. 164. Jurors may be excluded from court room. 165. Entry of verdict. 166. Defects in ples^dingsj variance; failure of proof. EDITORIAI^ NOTES — Civil Practice Act references: Trial gen- erally, CPA §§ 421-447; Jury trial ot spe- cific Questions of fact when of right, CPA § 429; Jury trial of specific questions of fact, when discretionary, CPA § 430; Terms at which issues tried, CPA § 432; Variance between pleading and proof, CPA § 434; Trial elsewhere than at court house, CPA § 437; Nonsuit after jury retires, CPA § 457; Direction of a verdict, CPA § 457-a; General and special verdict and special findings, CPA § 459; Trial by jury, CPA §S 448-463; Trial by referee, CPA §§ 464- 471. Rule 155. Order containing stay. An order served less than ten days before the beginning of a term in which an action may be reached for trial shall not stay proceed- ings unless made by the judge who is appointed to hold such term, nor 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. This shall not apply to orders of the appellate division or of a judge thereof. ings 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 con- tained in an order to show cause return- able 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." Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. EDITORIAI^ NOTES — Source: All except last paragraph is Gen- eral Rule of Practice 37, third paragraph; last paragraph is new. Formerly Law Rule 48; Rule 28 of 1849; Rule 25 of 1852; Rule 39 of 1858; Rule 46 of 1871, 1874; Rule 37 of 1877; Rule 38 of 1880; Rule 37 of 1884, 1888. 1896, 1900, 1910, 1913. Gen- eral Rule 37 read: "No order, except in the first judicial district, served after the ac- tion shall have been noticed for trial if served within ten days of the trial term, shall have the effect to stay the proceed- Rule 156. Motion for dismissal of complaint. Whenever an issue of fact in any action pending in any court has been joined and the plaintiff therein shall fail to bring the s.ime to trial within a reasonable time according to the course and practice of the court, the defendant, at any time after later issues shall have been tried in their regular order, may move for the dismissal of the complaint v^dth 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; otherivise the complaint shall be dismissed. ESnOBIAI^ NOTES — Source: General Rule of Practice 36, first two sentences. "Later issues" read "younger issues," and "at Special Term" omitted after "move." Formerly Rule 23 of 1849; Rule 21 of 1852; Rule 27 of 1858; Rule 45 of 1874; Rule 36 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in Italics is new matter, inserted June 17, 1921. Civil Practice Act references; Dismissal of complaint for neglect to proceed, CPA § 181. Star (*) means read Not Into HEAD:oINE in capitals. For Illustration see Rule 1. de- special MOTION FOR SISMISSAI^; TrUEI.-S'— Cross-notice of trial: after service by fendant of (Chilcott 1 LawB 50). General term: after, but at first term (Hawley 8 How 96). Joinder of issue of fact! before (*Whalpn 174 AD 923, 160 NYS 1150; 'Unger 30 How 443). later issues tried: after (Roy 1 Duer fi^fi 8 How 253; McGrath 128 AD 278, 112 NTS 679; Crisenza 12 AD 611, 106 NTS 335- Watson 51 Mis 227, 100 NTS 958; PxArflten 106 AD 590, 94 NTS 812). ^-fvriKen notion trrantea: but facts not stated (Till=;. paugh 8 How 33). mas. rr. 156, 157 OLEVENGMR'8 RULES OF CIVIL PRACTICE 148 Hotlcin? cause for trial: after, by defend- ant (MoeUer 14 How 359; 'US Fidelity & Guaranty Co 138 AD 275, 122 NYS 882: Israel 12 Mis 206, 34 NYS 28); before (Roy 1 Duer 636, 8 How 253); plus failure to move for dismissal when reached on cal- endar ('Miner 18 AbP 244). REASOKABX.!: rciTOIS — Eighteen moathS! ('Jacob 26 Mis 670, 57 NYS 904); after new trial granted ('Class Journal Co 145 NYS 958). Elg'ht years: ('Finn 137 AD 60, 122 NYS 37). rive years: ('Silverman 42 AD 21, 58 NYS 663; 'Toher 124 AD 370, 108 NYS 667; about ('Forber 133 AD 739, 118 NYS 214); over ('Zafarano 80 AD 144, 80 NYS 510; 'Mladinioh 112 AD 181, 98 NYS 46). Pour years: ('Tuttle 155 AD 802, 140 NYS 930); over ('McCardell 124 AD 528, 108 NYS 990). latter issues tried: after ('McGrath 128 AD 278, 112 NYS 679; 'PxArfken 106 AD 590, 94 NYS 812; 'Pocuinas 74 Mis 407, 132 NYS 395). Seven mouths: where defendant in jail ('Taber 60 Supr 65, 16 NYS 613). Seveu years; ('Ingri 134 AD 960, 119 NTS 502). Six years: ('Seymour 12 AD 300, 42 NYS 92). Ten years; ('Watson 51 Mis 227, 100 NYS 958). Tliree years: ('Regan 123 AD 72, 107 NYS 722; 'Fisher Malting Co 92 AD 261, 87 NYS 37; 'Graham 21 AD 416, 47 NYS 562); over ('Anderson 116 AD 231, 101 NYS 585; •McMann 92 AD 249, 87 NYS 38); where reserved for convenience of both parties (Clare 34 StR 120, 11 NYS 519). Sixteen years: over ('Jewett 14 WkD 200). Twenty years; ('James 28 Hun 74). Two years; about ('Israel 12 Mis 206, 34 NYS 28); over ('Kachel 137 AD 199, 121 NYS 979; 'Holtzoff 134 AD 353, 119 NYS 47; 'Ellsworth 16 Hun 1). DEIiAV EXCTTSIiD — Alimony: nonpayment of ('Taber 60 Supr 65, 16 NYS 613). Another action peudintp: involving same pur- pose ('Frohman 136 AD 430, 120 NYS 900). Attorney: agreement of, setting case for future date (Fuller 9 How 74); clerk of, who had full charge, went on spree and never returned ('McCardell 124 AD 528, 108 NYS 990); dissolution of partnership and nonagreement as to substitution ('Regan 123 AD 72, 107 NYS 722); entry in register that managing clerk had di- rected assistant not to place it on trial ('McGrath 128 AD 278, 112 NYS 679); fire in office of destroying a great many papers ('Holtzoft 134 AD 353, 119 NYS 47); for- getting that action pending ('Silverman 42 AD 21, '58 NYS 663); illness, without showing character of it ('Seymour 12 AD 300, 42 NYS 92); inadvertence ('McMann 92 AD 249, 87 NYS 38). Defendant: consent to adjournments ('Mc- Hugh 51 Mis 588, 101 NYS 95); failure to put on calendar and notice for trial a test case (Graham 21 AD 416, 47 NYS 562); laches (Jacob 26 Mis 670, 57 NTS 904); lack of assets ('Class Journal Co 145 NTS 958); stay by (Unger 30 How 443). Difficult and unusual nature of cases: and the character and course of litigation (Hathorn 83 Mis 582, 146 NYS 271). Dllltrence: after motion served ('Finn 137 AD 60, 122 NYS 37; •Holtzotf 134 AD 353, 119 NYS 47). Discretion of court: where good cause of action alleged and party wishes to try it on merits (Osborne 5 WkD 589). Kotice of trial: after motion served ('Israel 12 Mis 206, 34 NYS 28)- and case on gen- eral calendar ('Fisher Matting Co 92 AD 251, 87 NYS 37); just prior to motion ('Seymour 12 AD 300, 42 NYS 92); plus placing on day calendar, where stricken and not restored ('Toher 124 AD 370, 108 NYS 667). Poverty: inability to pay attorneys ('Tuttle 155 AD 802, 140 NYS 930; 'Kachel 137 AD 199, 121 NYS 979; 'Mladinick 112 AD 181, 98 NYS 46). Settlement of claim: where attorney took no steps to enforce his lien ('Crisenza 12 AD 611, 106 NYS 335). Witness: sickness of and offer to pay defend- ant's cost of the circuit (Hawley 8 HoT» 96). COMDITIONS IMPOSED IN DEITYIira MO- TION: JUST — Additional time: to proceed (Ellsworth 16 Hun 1). Costs: (Haberstitch 67 How 318); plus plac- ing cause on calendar for December term (Perkins 42 How 102); plus reference (Graham 21 AD 416, 47 NYS 562); stipula- tion to try case without further delay (US Fidelity & Guaranty Co 138 AD 275, 122 NYS 882; Mladinich 112 AD 181, 98 NYS 46); substitution of receivers (Moffett etc Co 83 Hun 73, 31 NYS 713). Hen; creation of on land in defendant's favor ('Graham 21 AD 416, 47 NYS 562). Notice of trial: for next term of court (Taber 60 Supr 65, 16 NYS 613). Supplemental complaint: filing of and issue summons thereon (Chapman 15 How 241). BEIiIEP, IN ADDITION TO DISMISSAl, PROPER — Judgment for defendant; on contested counterclaim ('Vessell 10 Mis 46, 30 NYS 806). MATTERS CONSIDERED ON MOTION — Jurisdiction: of court ('MofCett etc Co 83 Hun 73, 31 NYS 713). DISMISSAI^ POR NEdECT TO PROS- ECUTE; 'WHAT CONSTITUTES — Discretion of court: to deny to dismiss (•Society for Ref 2 LawB 93). Due diligence: failure to use after answers put in and noticed for hearing by one de- fendant (Salters 15 AbP 224). Pailure to answer calendar call: at trial term ('Sweeting 176 AD 494, 162 NYS 961). Pailure to serve: some of defendants with process (Morris 16 AbP 124). Refusal to proceed; after jury drawn (Ha- berstitch 6 CivP 82, 67 How 318). WHO MAY MOITE— Defendant; one of several (Ward 12 How 193). Rule 157. Settlement of issues for trial by jury. If a party desire to have an issue of fact framed for trial by jury, not as a matter of right but in the discretion of the court, the party shall give notice of a motion therefor within twenty days after issue joined. If such motion be not made within such time, the right to apply for 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 may settle the issues. EDITORIAD NOTES — 1874; Rule 31 of 1877, 1880, 1884, 1888, Source: General Rule of Practice 31, sec- 1896, 1900, 1910, 1913. ond, third and fourth sentences. Formerly Text in italics is new matter, inserted June Equity Rule 59; Rule 74 of 1849; Rule 69 17, 1921. of 1852; Rule 33 of 1858; Rule 40 of 1871, CivU Practice Act references; Jury trial of 149 TRIAL rr. 157, 158 specific questions of fact, when discretion- ary, CPA § 430. Star (*) means read Not into HEASUNE in capitals. For illustration see Rule 1. ISSUES OT FACT: WHAT COITSTITUTES-. Divorce: adultery (Stafford 165 AD 27, 150 NYS 212; Cohen 160 AD 240, 145 NYS 652; Halgren 160 AD 477, 145 NYS 987; Day 122 AD 907, 107 NYS 1125; Wilcox 116 AD 423, 101 NYS 828; Conderman 44 Hun 181; Moot 86 Mis 495, 149 NYS 302; Sigel 28 AbNC 308; Leslie 11 AbNS 311). Portfery: of indorsement (Candee 2 NT 269). Landlord and. tenant: fraud in procuring lease (Wood 3 AbNS 467). Lieu: fraud (Colie 48 NY 119). Mortg'age foreclosure: breacli of covenant against encumbrances (Herb 80 AD 145, 80 NYS 552); payment (Carroll 95 NY 252); tender of interest and denial that principal due (Bennett 53 NY 508); usury (Chapin 23 Hun 12; Apel 39 Hun 482). Fartitiou: competency of deceased to devise real estate (Hewlett 62 NY 75). Partnership: fraud in drawing of papers (Clark 26 How 285); mistalie (Clarlt 28 How 285). Trademarks: right to and violation of (Col- man 50 NY 572). Usury: discount of note (Farmers & Me- chanics Bk 37 NY 352). TRIAL BV JURY XS SISCRETIOIT OP COURT— Equitable action: precise nature not speci- fied (Cantoni 12 Mis 343, 33 NYS 565). Praadnlent conveyance: to set aside and en- fore lien (Wright 94 NY 32). Injunction: order not reviewable (Colman 50 NY 572). Joint adventure: accounting for profits (Church 16 How 294). Judiffments : order on motion not appealable (Candee 2 NY 268). Lease: umpire's award invalid, no abuse of discretion shown (Ettlinger 122 AD 681, 107 NYS 779). Lien: order not appealable (Colie 47 NY 119). mortgage foreclosure: abuse of discretion not shown (Farmers & Mechanics Bk 37 NY 352); fraud (Knickerbocker Life Ins C3o 8 Hun 21); legal counterclaim (Manhat- tan Life Ins Co 184 AD 440, 171 NYS 678); usury (Knickerbocker Life Ins Co 8 Hun 21; Apel 39 Hun 482). IfniBance: compel removal of obstruction across passway (Rexford 7 Lans 249). Partition: order not appealable (Hewlett 62 NY 75). Partnersliip : open accounts and for an ac- counting (Rutty 12 AbNC 352). Vendor's lien: foreclosure (Seymour 13 Hun 284). Wills: testator's competency and undue in- fluence (Hatch 64 Barb 189). TRIAL AS UATTER OF RIGHT — Divorce: (Cohen 160 AD 240, 145*NTS 652; Halgren 160 AD 477, 145 NYS 987; Day 122 AD 907, 107 NYS 1125; Conderman 44 Hun 181; Moot 86 Mis 495, 149 NYS 302); insanity in action for divorce for adultery (♦Wilcox 116 AD 423, 101 NYS 828). Eauitable action: kind not specified (*Kileen 73 Mis 21, 130 NYS 647). Injunction: (Teeter 164 AD 884, 148 NYS 670); at preliminary stage of the case (•Colman 50 NY 572). Mechanics' lien: foreclosure ('Arnot 44 AD 61, 60 NYS 401). ISortgage foreclosure: legal counterclaim (Herb 80 AD 145, 80 NYS 552). Nuisance; abatement of and damages (Hud- son 44 NY 553). Partition: (Hewlett 62 NY 75). Release: cancellation (*Moss 50 AD 301, 63 NYS 947). Wills: to set aside probate (*Bllersohn 6 AD 601, 39 NYS 774). Waived by cross-noticing for trial: at special term (Brickley [Nov 30, 1921] 66 NYLJ 724). Vendor's lien: foreclosure (*Seymour 13 Hun 284). NOTICE OF MOTION TIMELY— Ten days: more than, after issue joined, (prior rule (*Bttlinger 122 AD 681, 107 NYS 779; 'Moss 50 AD 301, 63 NYS 947; •Arnot 44 AD 61, 60 NYS 401; 'NY Life Ins Co 41 NYS 225); discretion of court (Apel 39 Hun 482; Clark 26 How 285); more than in di- vorce, prior rule (Wilcox 116 AD 423, 101 NYS 828; HafC 64 Mis 132, 118 NYS 52; Conderman 44 Hun 181); excuse shown (El- lersohn 6 AD 601, 39 NYS 774); within (Church 16 How 294). Twenty days: more than, after issue joined (•Manhattan Life Ins Co 184 AD 440, 171 NYS 678; 'Teeter 164 AD 884, 148 NYS 670; 'Kileen 73 Mis 21, 130 NYS 637); more than, in divorce (Moot 86 Mis 495, 149 NYS 302, afd 214 NY 204; Stafford 165 AD 27, 150 NYS 212; Halgren 160 AD 477, 145 NYS 987; 'Cohen 160 AD 240, 145 NYS 652). RIGHT TO APPLY WAIVED — Claiming trial: by court ('Davis 36 NY 569). Gross notice for trial: served by defendant (•Halgren 160 AD 477, 145 NYS 987). Failure to oppose preference: and asking that appearance of cause on calendar be deferred ('Haff 64 Mis 122, 118 NYS 52). Noticing cause: for special term (*Wilcox 116 AD 423, 101 NYS 828; 'Haff 64 Mis 122, 118 NYS 52). BY WHOM MOTION MAY BE MADE — Court: (Brinkley 56 NY 192; Church 16 How 294). RULE VALID — Divorce; as applied to (•Moot 86 Mis 495, 149 NYS 302. afd 214 NY 204). RULE APPLICABLE — WUls: contested probate (*Plate 93 Mis 423, 156 NYS 999). Rule 158. Terms at which issues of fact triaUe. In the supreme court, an issue of fact triable by a jury must be tried at a trial term thereof, and an issue of fact triable by the court may be tried at a trial term or a special term of the supreme court. EDITORIAL NOTES — Source: CCP § 976, second sentence. Revised from CP § 255 as amended in 1849, 1851, 1852 and by L 1895, c 946; L 1900, c 569; L 1900, c 493. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Terms at which issue tried, CPA § 432. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. ISSUE OP PACT TRIABLE BY JURY: WHAT ARE — Bills and notes: endorser's liability (Vose 46 How 424). Divorce: adultery (Compton 46 Supr 579). Ejectment; extent of encroachment (Carroll 207 NY 575). Intoxicating liquors: cancellation of certifi- cates (Sisson 179 AD 236, 166 NYS 521). Nuisance: telegraph poles in street (PvMet Tel & Tel Co 31 Hun 596). ISSUE OF PACT TRIABLE BY JURY: WHERE TRIABLE — Trial term; (Sisson 179 AD 236, 166 NYS 521: Compton 46 Supr 579). ISSUE OF FACT TRIABLE BY COURT: Ejectment: (Carroll 207 NY 575). Equitable action; precise nature and issues not specified (Moe 176 NYS 911). Injunction: against nuisance (Cornell 13 NYS 513). rr. 158-161 OLEVENGER'8 RULES OF CIVIL PRACTICE 150 Kort^gie foreclosure: usury (First Nat Bk of Rondout 50 How 116). Reformation of contract: mutual mistake (City of NY 213 NY 563). Specific performance: of agreement to prose- cute suits and establish title (Belmont 3 Rob 693). ISSUE OF FACT TRIABI.E BV COURT: VTHEBS TKIABI.E — Trial term: (City of NY 213 NY 563; Car- roll 207 NY 576). Special term: (Moe 176 NYS 911; First Nat Bk of Rondout 50 How 116; Belmont 3 Rob 693); judge under no obligation to send to other term where objection after trial com- menced and parties voluntarily appeared ai (Warner 15 WkD 256). BUI.E CITED — But not applied: (Bryant 184 NYS 315; Betor 184 NYS 47). To part: of CCP § 976 omitted from Rule 158 (Hull 225 NY 342^ 122 NB 252; Ran- some CM Co 207 NY 383; Gantler 204 NY 20; Queen 191 AD 83, 180 NYS 856; Am N & B C Mfg Assn 190 AD 164, 179 NYS 207; Bardwell 189 AD 433, 178 NYS 642; Kahn 177 AD 383, 163 NYS 984; Keyes 173 AD 336, 158 NYS 617; Dedirick 172 AD 260, 158 NYS 364; TaishofE 171 AD 288, 157 NYS 98; Armstrong 166 AD 583, 152 NYS 65; Loos 144 AD 558, 129 NYS 859; Natl PW Bk 144 AD 536, 129 NYS 846; Palito 91 Mis 674, 155 NYS 926; Kramer 79 Mis 80, 139 NYS 341; PvBleecker St & Fulton F RR Co 67 Mis 582, 124 NYS 786; "Walsh 6 Mis 114, 26 NYS 43, dis op; McLaughlin 184 NYS 645; Friedman 176 NYS 554; Snyder 173 NYS 402; Pierce 168 NYS 1030; Paul 153 NYS 560; Vogel Co 145 NYS 1085; Hudson Iron Co 145 NYS 790; Moran 143 NYS 522). Rule 159. Stipulation for trial elsewhere than at court house. A stipulation that an action or proceeding pending in a court of record shall be tried or heard and deter- mined elsewhere than at the court house must specify the place of trial or hearing and must be filed in the office of the clerk, and the trial or hearing may be brought on upon the usual notice unless otherwise provided in the stipulation. EDITORIAi; NOTES— Source: CCP § 37, last sentence, except words "that an action or proceeding pend- ing in a court of record shall be tried or heard! and determined elsewhere than at the court house," which are taken from CCP § 37, first sentence. CCP § 37 re- vised from L 1847, c 470, § 41, extended so as to include all courts of record, and con. fined -to trials without a jury. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Trial else- where than at court house, CPA § 437. Rule 160. Papers to be furnished on trial. If the issue be brought to trial by the plaintiff, he must furnish the court with copies of the summons and pleadings, and the offer of judgment, if any has been made; if the issue be brought to trial by the defendant, they must be furnished by the defendant. On each pleading thus furnished, shall be plainly designated the parts thereof claimed to be admitted or controverted by the succeeding pleading. Star (•) means read Not into HEADUNB in capitals. For illustration see Rule 1. ACTION OR FROCEEDINO: WHAT IN- CIiUDED — Execution: issuance of (Wadley 29 Hun 12). TRIAI^ Ei;SEWBERE THAN AT COURT HOUSE: FERKEISSIBIiE — Consent: necessary (Wadley 29 Hun 12). Stipulation: without ('Armstrong 90 NTS 711). STIPULATION: FORM SUFFICIENT — Oral: (•Armstrong 90 NYS 711). SSITORIAI^ NOTES — Source: First rparagraph is CCP § 981, broad- ened by omitting before "they" the words "and the plaintift does not furnish those papers"; last paragraph is General Rule of Practice 19, last paragraph, partly transposed and except the omission of the first clause, "It shall be the duty of the attorney by whom the copy .pleadings shall be furnished for the use of a court on trial." CCP § 981 revised from CP § 259, amended by omitting the words "of the defendant" after "offer," so as to include offers made by plaintiff. General Rule of Practice 19 read; "It shall be the duty of the attorney by whom the copy pleadmgs shall be furnished for the use of a court on trial, to plainly designate on each plead- ing the part or parts thereof claimed to De admitted or controverted by the succeeding pleadings." Text in Italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADIiINS in capitals. For illustration see Rule 1. FI^EASINQS FURNISHED: BT WHOU— Plaintiff: (Miller 66 NY 558). Rule 161. Opening and closing speeches and examinations. Unless otherwise directed, each party shall open his case before any evidence is introduced and no other opening shall be permitted. One counsel only on each side shall examine or cross- examine a witness. One counsel only on each side shall sum up and he shall not occupy more than one hour unless by permission of the judge. While addressing the court, examining witnesses or summing up, counsel shall stand. ESITORIAIi NOTES — Source: General Rule of Practice 29, re- written. Formerly Rules 13 and 32 of 1849; Rule 13 of 1852; Rule 30 of 1858; Rule 37 of 1871. 1874; Rule 29 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Gen- eral Rule 29 read: "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 permis- sion of tlie 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 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 testimony, if taken down in writing, shall be written by some person other than the examining counsel; but the judge who holds the court may 151 TRIAL rr. 161-163 otherwise order, or dispense with this re- quirement. While addressing the court, ex- amining witnesses or summing up, counsel shall stand." Text Is Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. EACK PARTY SHAIil^ OFEIT CASE: WHEN Introauction of evidence: before (See Mead 92 NY 122; See Plenty 43 Hun 568). BZAMIKATION AND CROSS-EXAIHZNA- TION OF WITNESS: WHO SLAV— Only limitation: upon right to be represented by such counsel as he sees fit is to be found in this rule (Bardar 157 NYS 886). Refusal: to let regular counsel enter and conclude trial after temporary counsel be- gan it, is error (Bardar 157 NYS 886). STJMMING UF: TIME AIiI^OWED — Criminal cases: thirty minutes (PvKelly 94 NY 526). Rule 162. Production of books and papers by library associations, public depart- ments and officers. No subpoena duces tecum requiring a library association or corpo- ration, a public officer, a department of a municipal corporation, or other public officer or department, to produce on the trial of an action or proceeding before a court or referee, books, papers or other documents or writings in its or his possession, shall be issued except by a justice of the supreme court in the district in which the library or department is situated or the public officer is employed, or by a judge of the court in which the action or proceeding is pending, and except upon one day's notice to the library, officer, corporation or head of the department having possession of the books, papers or other documents or writings, and also to the opposing party or his attorney. The justice or the judge to whom the application is made shall not require the pro- duction of such books, papers or other documents or writings before a court or referee, when a stipulation between the attorneys or a copy thereof, duly verified, will serve, in his opinion, the purpose of such production, and he may impose such other conditions as, in his opinion, may be reasonable. Upon the refusal of a party to such an applica- tion to make such stipulation when required so to do, the justice or the judge to whom the application for a subpoena duces tecum is made may impose on such party the actual cost or expense incurred in producing the books, papers or other documents or writings in accordance with the subpoena, in addition to the fees now required by law on the service of a subpoena. ESITORIAIi NOTES — Soarce: General Rule of Practice 9, except "situated" read "located," and "special" is omitted before "proceeding." Formerly Rule 9 of 1913. Text In Italics is new matter, inserted June 17, 1921. CivU Practice Act references: Production of official records upon trial or hearing, CPA § 410; Personal attendance pursuant to subpoena duces tecum, CPA § 414. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. WHO MAV BE ORDERED TO PRODUCE — Borongli president: of the Bronx (Priedberg 162 AD 79, 147 NYS 1). Commissioner of Excise: (Green 92 Mis 503, 157 NYS 87). WHAT BOOKS, PAPERS, DOCUMENTS AND WRITINGS PRODUCIBIiE — Complaints: as to premises on file with Com- missioner of Excise ('Green 92 Mis 503, 157 NYS 87). Reports: made by agents to commissioner of excise (Green 92 Mis 503, 157 NYS 87). Evidence: competency and admissibility of (•Friedeberg 162 AD 79, 147 NYS 1; *Qreen 92 Mis 503, 157 NYS 87). REASON FOR RUIiE — To remedy ahuses: with respect to unneces- sarily requiring custodians of public rec- ords to remove them when copy sufficient (Friedeberg 162 AD 79, 147 NYS 1). Eule 163. Application for order to produce prisoner as a witness. An application for an order, made as prescribed in the civil practice act, to bring a prisoner before the court as a witness, must be verified by affidavit and must state: 1. The title and nature of the action or proceeding in regard to which the testimony of the prisoner is desired, and the court, or body in or before which, or the officer before whom, it is pending; 2. That the testimony of the prisoner is material and necessary to the applicant on the trial of the action or the hearing of the proceeding, as he is advised by counsel and verily believes; 3. The place of confinement of the prisoner; 4. Whether the prisoner is or is not confined under a sentence for a felony. But where the attorney-general or district attorney makes the application, he need not swear to the advice of counsel. to produce prisoner before officer or body, CPA § 416; Order to produce prisoner In certain inferior courts, CPA § 417; Order when prisoner is sentenced to death or for felony, CPA § 418; Remanding of prisoner after testifying, CPA § 419; Penalty for failure to obey order to produce prisoner. CPA § 420. Star (•) means read Not into HEASUNE In capitals. For illustration see Rule 1. EDITORIAI^ NOTES — Source: CCP § 2012 verbatim, except an order" read "a writ," and "the civil prac- tice act, to bring a prisoner before the court as a witness," read "either of the foregoing sections of this article," and "special" is omitted before "proceeding." Text in Italics is new matter. Inserted June 17, 1921. dvii Practice Act references: Order to brmg up prisoner as witness, CPA § 415; Order rr. 164-166 OLEVENGER'S RULES OF CIVIL PRACTICE 152 amended by substituting the words "a court of record" for "every court of com- mon law jurisdiction." Text In Italics is new matter, inserted June 17. 1921. Star (*) means read Not Into HEASIiINE in capitals. For illustration see Rule 1. BUIVE CITED — But not appUed: (Burke 47 AD 428, 62 NTS 453, rvd 166 NY 305, dis op; See French 21 Mis 722, 48 NTS 9, rvd 27 AD 612, 50 NTS 776: Ebersole 23 Hun 117; Hall 13 Hun 309; Gumb 9 NTS 316). To paxt: of CCP § 1189 omitted from Rule 165 (Logan 230 NT 19, Voisin 123 NT 120; O'Connor 161 NTS 585; Mattlage 17 NTS 536; Sternberger 4 NTS 546; Overton 3 StR 169). Rule 164. Jurors may be excluded from court room. The court may exclude from the court room the jurors sitting in an action during the argument of a motion for non-suit, dismissal of the complaint or direction of a verdict, or the wrgument of a question concerning admission or exclusion of evidence. EDITOBIAI^ NOTES — SoTirce: CCP § 1190, second sentence, ver- batim, except the clause "upon the applica- tion of either party," following "may," is omitted; first sentence is omitted; last clause is new. CCP § 1190 revised from 2 RS 419, pt 3, c 7, tit 4, § 53, remodeled so as to adapt it to the present system, and Rule 165. Entry of verdict. When the jury renders a verdict, or finds on one or more specific questions of fact, stated under the direction of the court, the clerk must make an entry in his minutes specifying the time and place of the trial; the names of the jurors and witnesses; the verdict, or the questions and findings thereof, as the case requires; and the direction, if any, which the court gives with respect to the subsequent proceedings. EDITOBIAI^ NOTES — Source: CCP § 1189, first sentence verbatim, except that "on" read "upon" and "thereon" read "thereupon." Revised from CP § 264, amended so as to include the findings, by a jury, upon specific questions of fact, and to confine the requirement of the second sentence to the case of a general verdict, etc., as amended by L 1877, c 416. Text in italics is new matter, inserted June 17. 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. Rule 166. Defects in pleadings; variance; failure of proof. 1. If a pleading he defective, whether for failure to state a cause of action, or a defense, or otherwise, and objection thereto has not been raised before the trial, the judge may permit it to be amended. If evidence be offered which is relevant to the controversy between the parties, but which is not admissible because the facts to the proof of which it is addressed are not sufficiently pleaded, or in case of variance between pleadiiig and proof, the judge may permit an amendment conforming the pleadings to the proof. In granting any amend- ment hereinbefore provided for, the judge may adjourn the trial or direct a new trial, and impose terms and conditions in his discretion. 2. A complaint or counterclaim need not be dismissed on the trial because of failure of or defect in proof, if it shall be made to appear that the evidence to supply the defect can be produced. In such case the judge may thereupon receive such evidence or adjourn the trial, or direct a new trial, on such terms as in his discretion shall he proper. Executors and administrators: to change ac- tion against executors into one against them individually (Zimmer 34 AD 504, 54 NTS 685). Plre insurance: assignment as collateral se- curity (Hodges 8 NT 416). £lens: omission of allegation of nonpayment of note as security (Natl Bk Deposit 166 NT 380, 59 NB 922). Mechanics lien: introduction of new cause of action (*McGraw 56 NT 610). Nature of action: not shown (See Franken 29 Mis 771. 61 NTS 496). Receiver: appointment, word "duly" added (Rockwell 45 NT 166). FAHiTTBE TO STATE DEFENSE OF AC- TION: AMENDIIENT AI^I^OWED — Bills and notes: recovery on promissory note ("Zinsser 66 AD 514, 73 NTS 287; •NY Marbled Iron Wks 4 Duer 362). Judgments: action on foreign, failure to show lack of jurisdiction ('Rice 38 AD 543, 56 NTS 351). Trespass; (Joslyn 13 NTS 311, dis op). OTHERWISE DEFECTIVE — Account: for goods sold and delivered, item omitted by mistake (Parsons 66 NT 92, afg 39 Supr 544). Cancellation of Instmments: waiver by stipulation of need to amend (•Reich 74 Hun 551, 26 NTS 443). EDITOBIAI^ NOTES— Source: CCP § 539, last two sentences re- written. Revised from CP § 169. CCP § 539 read: "A variance, between an alle- gation in a pleading and the proof, is not material, unless it has actually misled the adverse party, to his prejudice, in main- taining his action or defence, upon the merits. If a party insist that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. There- upon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just." Text in italics is new matter, inserted June 17. 1921. Civil Practice Act references: Variance be- tween pleading and proof, CPA § 434. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. FAXLTTBE TO STATE CAUSE OF ACTION: AMENDMENT AIiI^OWED — Bills and notes: letter of credit failure to state consideration ('Johannessen 84 Hun 594, 32 NTS 863). Contracts: performance of service in impart- ing agreed information (Winch 11 Mis 390, 32 NTS 244). Death: changing date and place of accident (Critelli 87 Hun 530, 34 NTS 479). 153 TRIAL r. 166 ContractB: overpayment (See Howard 82 NT 271). Deatb: mother as plaintiff for death of child, allegation that she was sole surviv- ing parent at time of accident (Richmond 9 Mis 355, 29 NTS 588). Ezecntors and administrators: agreement as to payment for services rendered de- ceased (See McLaughlin 141 NY 76). Factors: misnomer of defendant (Banner- man 2 HowNS 293). Landlord and tenant: recovery of rent, after motion for verdict (Reiner 38 AD 441, 56 NTS 423). Libel: stating separately each publication as separate cause of action (Colgin 8 AD 617, 40 NTS 961). Master and servant: personal injuries, to show infant by guardian was plaintiff (Kaplan 5 AD 60, 38 NTS 1049). Ulsnomer: of plaintiff (Bk of Havana 20 NT 365, afg 7 AbP 134, 16 How 97). Partition: misnomer of plaintiff (Pickert 73 Hun 476, 26 NTS 437). Residence of defendant: nature of action not stated (Jenkins 85 Hun 619, 32 NTS 883). Sheriff: unnecessary allegation as to author- ity and exception of property in action against (Dennis 50 Barb 95, 34 How 467). Tenancy in conunon: admission that defend- ant went into possession under lease (•Val- entine 1 AD 502, 37 NTS 287). Trespass: residence of defendant within jurisdiction of court (Hogan 2 AD 82, 37 NTS 522). Wills: construction and validity of trust, no joinder of parties (See O'Brien 25 Hun 446). Work and lalior: increasing amount of claim (Anigo 7 Mis 505, 27 NTS 995). VABIANCE: AMENDSCBNT ALLOWED — Accident insurance: suicide or voluntary ex- posure to unnecessary danger (See "Wil- liams 82 Hun 288, 31 NTS 343). Assignment: action to invalidate (See Hooper 7 StR 405). Attachment: recovery of prior judgment (Schlussel 34 Barb 615, 22 How 15). Attorney and client: time of making retainer contract (Carlisle 102 AD 582, 92 NTS 924). Banking': crediting of check to indorsing depositor (Martin 160 NT 190). Bills and notes: absolute and conditional promise to pay (Hart 6 Duer 294); count for goods sold and delivered which formed consideration of note (Vibbard 61 Barb 616); date of payment (Chapman 3 Bos 456); notice of protest and showing of waiver, where motion made asked that ac- tion be made against surety (•UUman 86 Hun 186, 33 NTS 248); usury ('Gould 21 How 97); where effect would be to reverse judgment ('Weems 24 NTS 271). Brokers: recovery of commissions, where case had been fully tried and submitted to jury ('Browne 24 AD 480, 48 NTS 1038). Building contract: damages for breach for one in quantum meruit (Plynn 14 CivP 135); failure to allege production or waiver of architect's certificate (*Bossert 51 AD 381, 64 NTS 733); obtaining engineer's certificate (Smith 41 AD 290, 58 NTS 402). Carriers: breach of contract to carry pas- senger (Bonesteel 21 Barb 26); ejection of passenger (Miller 84 Hun 308, 32 NTS 332); injury to passenger, car was nearly stopped instead of stopped (Rosenburg 47 AD 323, 61 NTS 1052); cause of burn- ing of fuse (Williams 97 AD 133, 89 NTS 669); kind of business plaintiff engaged in to be specified (Buckbee 64 AD 360, 72 NTS 217); increase in amount claimed (Zimmer 36 AD 265, 55 NTS 308); loss of goods (See Rosebrooks 5 AbNS 59, 36 How 138, rvg 4 Rob 672). Contract: breach of, with allegation sound- ing in tort for cutting trees (See Veeder 2 Hun 74); payment in tickets and in money (NY News Pub Co 72 Hun 158, 25 NTS 401); plumbing work, reasonable value of materials and services instead of money had and received (Plynn 4 NTS 189); to manufacture set of teeth for specific price (Letter 21 Hun 573). Corporations: director's liability for not fil- ing report (Buck 5 StR 826); domestic cor- poration and foreign corporation shown (Clockey 22 Mis 618, 49 NTS 1014). Ejectment: absolute fee in plaintiff or lease- hold (See Sand 70 Hun 483, 24 NTS 251); denial of plaintiff's right and showing of equitable title (House 6 NTS 801); descrip- tion of land (Russell 20 NT 81); husband in possession in right of wife, proof that holding in own right (Rose 38 Barb 25). Executors and administrators: increasing amount of claim (Lounsbury 53 AD 318, 65 NTS 676); recovery of annuities due and unpaid (Thompson 1 AD 275, 37 NTS 340); recovery for services the executor, express rate ad quantum meruit (Scott 9 Bos 224); to show that counterclaim for services rendered at request of other than deceased (Woolsey 34 AD 405, 53 NTS 436). Pactors: recovery on contract against, with allegation for conversion (Conaughty 42 NT 83). raise imprisonment: effect of arrest on business (Clemens 4 Hun 260). Pire insurance: absence of force pump in building (McComber 15 NY 495); claim substantially changed (•Walroth 216 NT 220); increasing amount for which judg- ment demanded (Frankfurter 10 Mis 157, 31 NTS 3); reassignment of policy to insured (Washoe Tool Mfg Co 66 NT 613, afg 7 Hun 74). Foreign corporation: compliance with statu- tory requirement to do business (See Frick Co 147 NTS -735). Guaranty: recovery on, defense based on violation of agreement (•Compton Knowles Loom Wks 28 Mis 513, 59 NTS 556); sev- eral liability (See City Natl Bk 16 Hun 162). Hushand and wife: liability of wife for goods sold, after trial (♦Mitchell 25 Mis 179, 54 NTS 180). Infants: breach of contract, unlawful de- tention of goods ('Brown 5 Sand 224). Injunction: to restrain acts of lessor in cut- ting away premises ('Horowitz 98 NTS 53). Innkeeper's: lien on wife's paraphernalia (Birney 8 StR 348). Landlord and tenant: breach of covenant (DePeyster 1 Sand 719, 1 CodeR 93); re- covery of premises (Cameron 41 AD 532, 58 NYS 643); rent, length of lease (See Thomas 69 NT 118); use and occupation into one of covenant on the lease (Bed- ford 30 NT 453, 27 How 422, afg 1 Daly 371). Liens: to establish, joint account and agency (Drexel 13 NTS 774, 34 StR 166). Malicious prosecution: averment that pros- ecution ended (Ames 37 How 289, 55 Barb 194). Master and servant: employment, recovery for services ('Hauck 4 Hun 561). Mechanics' lien: foreclosure, different con- tract changing cause of action ('Riggs 7 NTS 765). Money paid: recovery on ground of mistake ('Roth 6 Barb 308). Mortgages: oral instead of written assign- ment (Hoyt 8 Bos 511). Municipal corporations: recovery of work done, additional item of damage (Mahon 10 Mis 664, 31 NTS 676). Mutual insurance: excusing formal proofs of death (Evarts 16 NTS 30). Nature of action: not shown (Therasson 22 How 98). NegUgence: defendant's negligence and maintaining nuisance ('Fisher 7 NTS 837). On appeal: (See Pratt 21 NT 305). RaUroads: injury to cattle, general allega- tion of negligence and failure to maintain proper fence (Becker 10 NTS 415). 1 r. 166 CLEVEXGER'S RULES OP CIVIL PRACTICE 154 Becedvers: for conversion of bank funds, increasing amount of claim (Knapp 37 Bupr 395, rvd 62 NY 616). Sales: after motion to dismiss ('Scheuer 32 Mis 750, 67 NYS 936); breach of war- ranty (Laufer 84 Hun 311, 32 NYS 362); time of delivery and acceptance of prop- erty (Babbett 51 Barb 466); to show de- livery and acceptance (Dunnigan 44 Barb 528). Schools: recovery of teacher's salary (Hos- ley 28 NY 438). Slaiider: difference in amount of robbery alleged and proven (Miller 19 NYS 701) increasing claim (Johnson 57 Barb 118) "stolen" and "took" (Coleman 36 Barb 26) words in foreign language instead of Eng- lish (Lettman 3 Sand 734). Street railroads: injury to person, "public" highway (See Whittaker 5 Rob 650, rvd 51 NY 295). Tort: change to one in contract ('Baldwin 1 NYS 713, 15 CivP 56). Towage: negligence of tow ('Button 40 Hun 422). Trespass: cutting of trees (Dubois 25 NY 123, afg 34 Barb 547). Trover: former recovery (*Hendricks 35 Barb 298); special damages in searching for heifer (Miller 12 How 203); to show that taking was wilful and malicious (Wilde 50 Barb 448). Trusts: action by cestui against trustee, statute of limitations ('Ford 53 Barb 525, 35 How 321); purchase of land with plain- tiff's money ('McCarty 24 How 236); ter- mination of (Milbank 141 NY 340). Usary: contract differing from one stated in answer ('Long Island Bk 105 NY 656); 58 Mis 206, 96 NYS 719); promissory note (Catlin 11 NY 368); recovery of excess in- excess of lawful interest (See Hagaman terest on promissory notes (Gurnther 16 AD 607, 44 NYS 982, afd 162 NY 601); promissory note, as to who purchased it (Clayes 4 Hun 231). Vendor and. purchaser: fraudulent represen- tation as to encumbrance, application too late and changing cause of action (*Egert 10 How 193); written and oral contract (Hamilton 54 Barb 542); lien, to enforce (Dubois 43 Barb 26). Work and labor: agreement to pay specified balance due (Secor 9 Bos 163, afg 3 Keyes 525, 4 AbD 188). VABIAKCE: 'WHAT CONSTITUTES — Accounting! legal action alleged and proven (•Williams 70 NY 601). Agency: accounting against agent and proof of joint venture (•Poirer 8 Bos 258). Arbitration: difference in date of contro- versy submitted (*Schultz 3 Sand 405); person to act as umpire not as arbitrator (Lyon 4 Duer 318). Architects: recovery for services, agreed and reasonable value alleged and actual value shown ('Keister 29 AD 539, 51 NYS 634). Assignment: by corporation and proof of, by its receiver ('Toplitz 20 Mis 576, 46 NYS 418). Attorney and client: recovery for services, express agreement and quantum meruit (•Barney 44 StR 902, 133 NY 605, afg 39 StR 926; 'Howe 7 Mis 33, 27 NYS 377; •Skinner 38 Mis 265, 77 NYS 560). Banking: recovery on check, notice of non- payment and excuse for not giving notice (Purchase 6 Duer 587, rvd 25 NY 211, 25 How 161). Bankruptcy: conversion, with proof of fraud In transfer of property by bankrupt (Stew- art 174 AD 838, 161 NYS 489). .Bills and notes: advantage of statute of limitations ('Beach 10 How 297); draft, action on draft not on goods themselves (•Jones 1 StR 478); initial of first name of drawer (Claflin 8 Bos 689); maker of note as Christopher Bulkley Instead of Christ Bulkley (See Wood 13 John 486); note named by Orrin North, evidence showed note by firm of two persons doing busin'ess under name of O. N. (•Orrin North Bk 28 NY 545); presentment to maker ('Paton 4 Duer 231); promissory note, date of pay- ment (Trowbridge 4 Duer 448); failure of consideration (See Spies 50 Supr 301). Breach of marriage promise: allegation that promise made in August and proof of sev- eral promises ('Nearing 24 NYS 531, 71 Hun 137); time of making (Brick 36 Hun 52). Brokers: agreed compensation and value of services ('Sussdorff 55 NY 319); special assumpsit and recovery on quantum meruit (•See Bonwell 9 Mis 65, 29 NYS 15). Building contract: street and substantial performance (•Zaok 128 NYS 737). Carriers: injury to live stock acts of negli- gence alleged and others proven ('See New- man 33 AD 171, 53 NYS 456); Injury to passenger, cause of injury (•Pollard 7 Bos 437); place of injury on one of two lines consolidate and proof on the other (•Powell 88 AD 133, 84 NYS 337); loss in business under allegation that injury interfered with active prosecution of business ('Fro- bisher 81 Hun 544, 30 NYS 1099); loss of goods ('See Newstadt 5 Duer 43); route of goods (•Richards 2 Bos 589). Conspiracy to defraud: details of and mode in which carried out (•Place 65 NY 89). Contracts: allegation of performance, evi- dence in excuse of performance (Hosley 28 NY 438); breach of, to pay for the fur- nishing of specified information (See Strong 4 Rob 385, rvd 51 NY 627); one considera- tion instead of two (Meriden Brit Co 4 Rob 312, afd 48 NY 247); recovery on quantum meruit, waiver by failure to ob- ject (Gillies 147 NY 420); sole liability and proof of joint undertaking ('Carter 10 Barb 180); to remove building, right of way thru streets and highways and proof of obstruction on private property (Cody 159 AD 234, 144 NYS 158). Conrerslon: proof of delay in performance (See Parisi 30 Mis 743, 62 NYS 1094). Corporations: recovery of bonds, defendant's claim of absolute ownership and proof showing them to be security for debt (*Loeb 6 NYS 296); rescission of contract of purchase of stock on ground of fraud (•Seaman 4 Bos 337). Damages: allegation of nervous shock and proof of curvature of spine ('Kleiner 36 AD 191, 55 NYS 394). Ejectment! absolute fee in plaintiffs or lease- hold ('Sand 70 Hun 483, 24 NYS 251); claim of ownership ('See Cruger 41 NY 219, afg 51 Barb 642); proof of less quantity of land than alleged ('Van Rensselaer 2 Barb 643). Executors and administrators: action on note against, where allegations of usury where mere characterization ('Bergmann 79 Hun 456, 29 NYS 968); fraudulent conversion with proof of failure to exercise reasonable care (Kirwin 45 AD 93, 61 NYS 844). Electricity: removal of wire (See Plummer 20 AD 527, 47 NYS 228). Fire insurance: agreement to insure as- signee's interest where action based on policy alone (Northam 177 NY 73, 69 NE 222); breach of executed and execution agreement to insure (Walrath 216 NY 220); false representations (Jackson 33 Hun 60); time of giving notice of loss ('Hovey 2 Duer 654). Kusband and wife: goods sold, joint liability alleged and individual liability shown ('See Boynton 85 Hun 128, 32 NYS 467). Injunction: waiver by failure to object CDomschke 74 Hun 442, 26 NYS 840). Insurance brokers: fraud and negligence al- leged in placing policy with company not authorized to do business ('Burges 18 AD 296, 46 NYS 326). Iiandlord and tenant: absence of lease ('Px Cashman 1 Hun 73); conversion by tenant (•Harpending 37 Barb 270); improvements, 155 TRIAL r. 166 purchase by landlord (Timoney 13 ClvP 364); rate of recovery specified in lease (•Peckham 6 Duer 494); rent, difference in time of surrender of premises ('Liyons 10 Mis 653, 31 NYS 795). Kiliel: words " U. States " in complaint and " United States " in paper (Lewis 6 Johns 1). Marino Insnxance: necessary coplaintifCs and parties in interest (Fowler 8 Bos 332). Master and servant: employment contract, " should indorse such contract," proof, should join in and sign the same (Hauck 4 Hun 561); illegality of employment con- tract under general denial (Wilking 25 Mis 735, 65 NYS 582). Mechanic's lien: to enforce (See May 21 Mis 321, 47 NYS 179). Money had and received: proceeds on sale of stock (*Hall 3 Bos 520); source from which money came ('Kraft 23 AD 26, 48 NYS 383). Money loaned: money given to defendant to take care of plaintiff may be shown under general denial (*Tomkins 78 Hun 220, 28 NYS 903); time when loan made ('Devlin 23 NYS 523). Money paid: mistake ('Walbridge 59 NY 642). Mortg'age foreclosure: duress by whom exer- cised (Lord 18 Hun 485). Municipal corporations: foreclosure of me- chanic's lien (See Cranford 13 AD 151, 43 NYS 246); materialmen's lien, date of delivery (•Williams 99 NY 666). Hegllgence: blasting in excavating, act of another ('Roemer 142 NY 134, 58 StR 615); hole in sidewalk and proof of defective ditch causing water to flow over walk (Woolsey 23 NYS 410); injury to canal boat, surplusage relating to a guaranty clause ('Spring 89 Hun 10, 35 NYS 46); ownership of premises by defendant and failure to prove it where answer admitted occupation ('James 9 NYS 504); variance between defendant's inadvertent admission and plaintiff's proof ('Horn 223 NY 490). Nnlsance: injunction against and general allegation indicating negligence ('Smith 7 Mis 374, 27 NYS 907). Omission: in complaint of an entire allega- tion offered to be proved ('Roth 6 Barb 308). Partnership: accounting, goods made after patterns furnished by defendant and not according to patent specification ('Spears 69 Hun 408, 23 NYS 549). Patents: breach of contract to pay royalties, legal relief only shown where cause set for trial by jury ('Brusie 16 NYS 648); to recover reasonable value of license to use process ('Montgomery 2 Mis 145, 21 NYS 631). Xefonnation of contract: mistake and fraud, with proof of mutual mistake ('Paisley 18 NYS 102). Sales: breach of execution contract and re- covery for goods sold and delivered (Hecla Powder Co 7 Mis 630, 28 NYS 34); breach of warranty with i>roof either implied or express warranty ('Rogers 46 AD 429, 61 NYS 725); delivery and prevention of de- livery by defendant by refusal to accept (Butler Bros 87 AD 62. 84 NYS 693); de- livery and receipt of machines ('Babbett 51 NY 242); difference in price of stock alleged and proven (Delany 7 NYS 132); manufacture and putting in place oil tank and proof of additional duty to remove old one ('Logan 22 NYS 778); over payment ('Rothschild 125 NYS 41); payment and release ('Cornell 35 Barb 157); price speci- fied and proof that payment was to be made in real estate (*Dampf 11 StR 90); pur- chase by defendant and delivery to third party ('Rogers 1 Bos 417); refusal to accept goods and actual receipt (See Kauf- man 21 Mis 302, 47 NYS 152). Slander: stealing corn, place of slander (Boynton 43 How 380); answering falsely ('Phincle 12 Barb 215); time of uttering (See Potter 22 Barb 87); words spoken in English and proof showed spoken in Bohemian (See Charwat 19 Mis 500, 44 NYS 26). Shipping': party to whom goods delivered (Harmony 1 Duer 209, afd 12 NY 99). Specific performance: terms of contract to convey land ('Lobdell 36 NY 327). Trespass: time in which acts committed CRelyea 34 Barb 547, afd 25 NY 123); turning on water and permitting waste water to overflow from a refrigerator (Lynch 155 NYS 272). Trespass on the case: representations that note was good ('Hawkins 2 Sand 421). Usury: excess of lawful interest (See Haga- man 48 Mis 206, 96 NYS 719); on promis- sory note (See Fay 10 Barb 321). 'Waste: suffering building to be burnt altho complaint charged wrongful setting on fire ('Robinson 25 NY 252); whether acts done maliciously as alleged ('Stilwell 6 StR 10). 'Waters: injury to roadbed (Conhocton Stone R Co 3 Hun 523). 'Wharves: sale of pier and proof as to agree- ment relating to another pier (Coverly 70 AD 82, 75 NYS 145). Worlc and labor: claim for money for and agreement to pay in specific articles of property ('NY Pub Co 148 NY 39, 42 NE 514); defense of payment and showing that plaintiff received and had use of property of defendant, CStirna 11 AD 206, 42 NYS 614); difference in name of plaintiff ('Wol- cott 22 Barb 321); express and implied agreement ('Smith 49 Barb 398; 'Fort 9 Barb 371); express contract and quantum meruit ('Wineburgh Advertising Co 128 NYS 562; 'Ludlow 62 NY 617, afg 1 Hun 75); length of contract ('Smith 89 Hun 568, 35 NYS 547). TERMS AND CONDITIOITS USt JUDGE'S DISCRETION: PROPER — Costs: (Woolsey 34 AD 405, 53 NYS 436; Howard 12 Mis 79, 33 NYS 52); plus post- ponement of trial (Wilde 50 Barb 448). COMPI^AINT DISMISSED — Bills and notes: recovery as damages by ac- commodation maker of expenses in litiga- tions concerning notes (Dougherty 38 Supr 455). Quieting' title; ('Lounsbury 18 NY 515). RV£E CITED — But not applied: (Dagal 23 NY 491; Pfandler P F Co 3 NYS 611). pah^ttre op froop: what consti- tutes — Bills and notes: expenses in litigation con- cerning notes Incurred by accommodation maker but not by reason of his liability thereon (Dougherty 38 Supr 455). Towage: negligence of tow not shown (But- ton 40 Hun 422). Street railroads: defective condition of track in personal injury case ('Schnell 44 AD 619, 64 NYS 67). 'Waste: acts not done maliciously (Stilwell 6 StR 10). r. 170 OLEVilXatlli'S IWLEij Oil' CIVIL PRACTICE 156 TITLE 22 BEFEBENCES Rule 170. References other than for trial of issues or foreclosure computation. 171.. Referee to be sworn. 172. Qualifioations of a referee. 173. Deposit by referee. ins, CPA § 467; Proceedings where several referees appointed, CPA § 468; General powers of a referee, CPA § 469; Referee's report, CPA § 470; Requests to referee to find, CPA § 471. EDITOBIAI^ irOTES — Civil Practice Act references: Reference by consent of parties, CPA § 464: Reference in discretion of court, CPA § 465; Compul- sory reference, CPA § 466; Compulsory reference upon questions incidentally arls- Bule 170. Bef^rences other than for trial of issues or foreclosure computation. Except in a reference to hear and determine the issues of an action or proceeding, and a reference for computing the amount due in a foreclosure action, each witness shall sign a transcript of his testimony unless such signing is waived. The report of the referee shall be filed with the testimony and a note of the time of filing shall be entered by the clerk in his record of the proceedings in such case. After the report is filed either party may move thereon, on notice to all parties interested. EDITORIAX NOTES— Source: General Rule of Practice 30, last paragraph. Formerly Rule 45 of 1847; Rule 25 of 1849; Rule 22 of 1852; Rule 32 of 1858; Rule 39 of 1864, 1871, 1877; Rule 30 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 30, last paragraph, read: "In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the tes- timony 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 report is filed either party may bring on the action or proceeding at Special Term on notice to the parties interested therein." Text in italics is new matter, inserted June 17. 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. BEPEBENCES WITHIN SECTION — Accounts of assignee: under assignment for creditors, to take and state (Talmage 39 AD 466, 57 NTS 427). Assessment of damages: to which appellate court by final judgment held party entitled (Bates 41 Mis 129, 83 NYS 929; Teale 127 AD 287, 111 NTS 165). Claims to money; levied on under execution, to hear proofs as to, and to "determine the same" to the court (Rovnianek 61 AD 486, 70 NTS 36). Partnership accounting: reference to hear and determine (•Williams 90 Hun 370, 35 NTS 812). Beceiver: to take evidence and report as to compensation and counsel fee due to (Atty- Genl 64 How 93). SIQ-NING OF TRANSCBIFT BY EACH WIT- NESS BEQXTIBED — Review of jadgTnent: entered on report de- nied (Williams 90 Hun 370, 35 NTS 81Z). OBJECTION TO OnnSSION OP SIG-NATTTRE WAIVED — By permitting: without objection, retire- ment of witnesses without signing (Rusk 1 WkD 566). By submitting question to referee: on un- signed depositions without calling referee's attention to omission or insisting upon signing (Hirsch 116 AD 367, 101 NTS 893, afd 188 NT 684, 81 NB 1165). PAU^TTBE OP WITNESS TO SIGN GROUND OP EXCEPTION TO REPORT — Motion proper remedy: (*Natl State Bk 45 How 280). MOTION ON BEPOBT NECESSARY— To confirm: as to assignee for benefit of creditors, who filed no exceptions to report on his accounting (*Kautsky 56 AD 440, 67 NTS 882); reference to determine amount due client from money collected by attor- ney (Cartier 118 AD 342, 103 NTS 505); reference to determine deficiency on fore- closure sale before entering judgment (*Moore 15 Hun 428); reference to state account and determine amount due plain- tiff ('Rust 46 Supr 22); reference to take proofs as to time complaint served, on application to open default ('Martin, 45 Hun 38). NOTICE OP MOTION ON BEPOBT RE- QUIRED — To confirm: reference to report facts as to alleged non-residence on question of secur- ity for costs (Sproul 27 Mis 27, 56 NTS 1001). NOTICE OP MOTION ON REPORT SUPPI- CIENT — Por confirmation: served same day as notice of filing report to which no exceptions had been filed ("James 19 AD 259, 46 NTS 187). PUING REPORT NECESSARY — To entitle referee to fees: parties notified that report is ready for delivery and fail to take it up ('Waters 14 Hun 223); par- ties terminate action by stipulation and enter judgment without referee's knowl- edge ('Keeler 48 Mis 427, 9'5 NTS 841); referee appointed to report in proceeding to compel administrator to file additional bond (Battome 124 AD 600, 109 NTS 120). To prevent termination of reference: timely ' notice given that report for ready delivery (•Little 34 Hun 396), actual delivery de- layed to accommodate party (*Dwyer 39 Hun 360). POKING TESTIMONY WITH REPORT NECESSARY — Hearing motion: to confirm report filed with- out testimony improper (Pope 22 Hun 468). REPORT PROPERI^Y PII^ED — After timely notice: of party's election to and reference (*Phipps 23 Hun 150). BUI;e CITED — But not appUed: (Walker 157 AD 609, 142 NTS 972). To part: of Rule 30, General Rules of Prac- tice omitted from Rule 170 (PvFederal Bk 122 AD 810, 107 NTS 811; Smith 72 AD 103, 76 NTS 194; Bailey 34 Mis 270, 69 NTS 616; Wilson & Adams Co 41 StR 471, 16 NTS 823; LefflngweU 30 Hun 528; Steinert 24 Hun 246). 157 lilSFERENGES rr. 171,172 Eule 171. Bef eree to be sworn. . A referee to hear and determine, or to take testimony and report, before proceeding to hear the testimony, must be sworn, faithfully and fairly to try the issues, or to determine the question referred to him, as the case requires, and to make a just and true report according to the best of his understanding. If all the parties whose interest will be affected by the result are of age, and present in person or by attorney, they may waive the referee's oath. The waiver may be made by written stipulation, or orally. If it be oral, it must be entered in the referee's minutes. EDITOBUX NOTES — Source: CCP § 1016, except second sentence, revised from 2 RS 384, pt 3, c 6, tit 6, § 44. "If" read "where" and "expressly" omitted after "they may." Text in Italics is new matter, inserted June 17, 1921. Star C) means read Not into HEADLINE in capitals. For illustration see Rule 1. OATH REQUIRED — Default Jndgiaent: reference to ascertain fact to enable court to render ('McGowan 54 How 458). Mortgaffe foreclosure! reference to determine amount due (Exchange Fire Ins Co 4 Ab NC 74, 54 How 279). TAKING' OP OATH PRES1TMED — Papers silent on subject: (Hatfield 24 NYS 596). ENTRY OP ORAI. WAIVER REQUIRED— Application: to confirm report denied (Vil- mar 10 Daly IB). Pallure: to object to failure to take oath till report made ('Nason 55 How 342, afd 56 How 172). Judgment: entered on report vacated (Browning 5 AbNC 285). Prior to Code provision: under 2 RS. 384, § 44 (*Malcolm 5 WltD 310). RUI.E CITED— But not applied: (Schroeter 23 Hun 230: Keator 7 How 41). In connection with.: rule relating to manner of waiving oath of arbitrators (Flannery 134 NY 85); rule requiring arbitrators to take oath (Krauter 194 AD 672, 186 NYS 109). In holding: that swearing of jury may be waived (Jenkins 2 HowNS 248, 8 CivP 70). Rule 172. Qualifications of a referee. A referee appointed by the court must be free from all just objection and no person shall be so appointed, to whom all the par- ties object, except in an action to annul a marriage or for a divorce or a separation. A judge cannot be appointed a referee in an action brought in a court of which he is a judge except by the written consent of the parties, and, in that case, he cannot receive any compensation as referee. No person shall be appointed a referee in an action or proceeding who holds the position of a court clerk, or confidential clerk, private secre- tary, secretary or stenographer to any justice or judge of a court of record. Except by consent of all the parties in interest, no person, unless he be an attorney of the court in good standing, shall be appointed sole referee in any action or proceeding. No person shall be appointed a referee who is the partner or clerk of the attorney or counsel of any party to the action or who occupies the same office with such attorney or counsel. EDITORIAL NOTES — Source: First three senten'-^es are CCP § 1024, except first and last part of last sen- tence; last two sentences are General Rule of Practice 79, first two sentences amended. CCP § 1024 revised from CP § 273. General Rule of Practice 79 was formerly Rule 86 of 1877; Rule 80 of 1880, 1884, 1888; Rule 79 of 1896, 1900, 1910, 1913. General Rule 79, first two sentences, read: "Except in a case provided for by § 1011 of the Code of Civil Procedure, no person, unless he is an attorney of the court in good standing, shall be appointed sole referee for any purpose in any pending action or proceed- ing. Nor shall any person be appointed referee who is the partner or cleric of the attorney, or counsel, of the party in whose 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." Text In italics is new matter, inserted June 17. 1921. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. DECISION OP COURT ON OBJECTION TO REPEREE REVIEW ABI^E — On ground: of professional and confidential relations with party ('Baird 74 NY 382, afg 7 WkD 70). REPEREE DISQUAI^IPIED— Acceptance: of retainers from party pending reference (Stebbins 65 Barb 272). Appointment: to supreme court bench pend- ing reference (Countryman 21 Hun 17). Attorney: for some of parties in other ac- tions in which plaintiff's attorneys were referees (O'Brien 49 Hun 80, 1 NYS 695; Carroll 29 Hun 17). By consenting: to appointment of attorney for party to reference, to act as referee in proceeding to review assessment against company of which he was president and for which his firm were attorneys (Cronon 42 Mis 1, 85 NYS 539). By decision: of related case between same parties, both cases having been referred at same time by consent (Conley 60 How 299). Calling on: plaintiff's attorneys and suggest- ing settlement for certain sum, stating that if he found for defendant it would be for large amount (Livermore 44 How 357, afd 47 How 350, ap dis 56 NY 72). Conduct: in attempting to obtain more than statutory fees ((jreenwood 29 Hun 99). Discussing facts: of case with witness who was to testify before him, in absence of counsel for parties (Smith 91 AD 200, 86 NYS 307). In action to enforce claim against city: acting as special counsel for city in other actions (Fortunato 31 AD 271, 52 NYS 872). In habeas corpus to obtain custody of infant: acting as referee in action by husband, the relator, against his wife for divorce, in which he found wife guilty of adultery (Bliss 39 Hun 594). In supplementary proceedings: attorney who holds unsatisfied judgment against debtor (Highley 145 AD 7, 129 NYS 759). Mental incapacity: adjudication of rendered same day decision signed (Schoenberg & Co 52 Mis 104, 101 NYS 798, rvg 51 Mis 83, 99 NYS 660). rr. 172, 173 OLEVENGER'8 RVLES OF CIVIL PRACTICE 1S8 Mifrcondiict and neglltrance : not sho-wn (•Teale 127 AD 287, 111 NTS 165). Fhyslolam appolutea: to direct the taking of x-ray picture (Lasher 161 AD 381, 146 NTS Keferee: in emother proceeding pending (•Atlcinson 12 StR 570). Befnslntr to reopen cade: except on payment or his fees, no bad faith appearing (•Hass- ler 18 StR 352). Statements to plaintiff: in presence of de- fendant's attorney without objection that he would look after his interests without pay in another action in which the referee was attorney for plaintiff's son-in-law. plaintiff being only a formal party ('Dono- hue 1 NTS 401). XrSE OF EVIDENCi: TAKEIT BEFORE DIS- QVAZiIPIBD BEFEBEE FBOFEB — On trial: before referee substituted for one elected to bench (*Heerdlegen 17 AD 515, 45 NTS 585). DISQUALIFICATION WAIVED— Disclaimer by counsel: of intention to object that referee had been clerk of attorney for party, when matter was called to his atten- tion (Fleck 131 AD 248, 115 NTS 652). BVI.E CITED— But not applied: (Winans 124 NT 140). Rule 173. Deposit by referee. All moneys received by a referee appointed to sell property shall be deposited forthwith by the referee, in his name as referee, in a bank or trust company authorized to receive deposit of court funds and designated by the court. If there be no such depository in the city or town in which the referee resides, then he shall forthwith deposit such moneys in a depository located in an adjoining city or town or with the county treasurer of the county in which the action or proceed- ing is pending. Such moneys shall not be withdrawn except as directed by the judg- ment or order under which the deposit is made, or on the order of the court. BDITORIAi; NOTES— Sonrce: General Rule of Practice 79, last sentence. Formerly Rule 86 of 1877; Rule 80 of 1880, 1884, 1888; Rule 79 of 1896, 1900, 1910, 1913. General Rule 79, last sentence read: "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 de- posit court funds; and if there be no such depository in the city or town in whicn 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 proceeding is pending; and such moneys so deposited shall not be withdrawn, except as directed by the judgment or order under which the deposit is made or upon the order of the court." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into BEADKINE in capitals. For illustration see Rule 1. 159 RECEIVERS r. 175 TITLE 23 RECEIVERS Rule 175. Duties of a receiver of deibtor's estate. 176. Security for costs by receiver before action. 177. Application by receiver in supplementary proceedings for leave to sue. 178. Sequestration of property of corporation; receiver thereof. 179. Where motion made for removal of receiver; extension of receivership. 180. Power of receiver to employ counsel. EDITOBIAIi NOTES — Civil Practice Act references: Receivers gen- erally, CPA § 974; Application for appoint- ment of receiver, CPA § 975; Security, CPA § 976; Powers of receivers to hold real prop- erty, CPA § 977. Rule 175. Duties of a receiver of debtor's estate. Unless restricted by the special order of the court, every receiver of the property of a debtor may sue for and collect all the debts, demands and rents belonging to such debtor. He may sue also in the name of the debtor, where it is necessary or proper for him to do so; and, without notice, he may apply for an order that the tenants of any real property belonging to the debtor shall pay the rents and profits thereof to the receiver. He may be permitted by the court to make leases from time to time. He may be permitted to make repairs necessary to the preservation of the property; but, without leave of the court, he shall not make improvements or substantial repairs to real property. It shall be his duty, without unreasonable delay, to convert the debtor's personal property into money. He shall not sell any real property of the debtor without an order of the court. He is not to be allowed for the costs of any action brought by him against an insolvent from whom he is unable to collect his costs, unless such action is brought by permission of the court, or by consent of all persons interested in the funds in his hands. By leave of the court, he may sell desperate debts and other doubtful claims to personal property, at public auction, giving at least ten days' public notice of the time and place of such sale; or by like leave he may compromise and settle such as are unsafe or of doubtful character. EDITORIAI. NOTES — Source: General Rule of Practice 77 broad- ened. Formerly Equity Rule 134; Rule 81 of 1849; Rule 76 of 1852; Rule 92 of 1858; Rule 93 of 1871, 1874; Rule 84 of 1877; Rule 78 of 1880, 1884, 1888; Rule 77 of 1896. 1900, 1910, 1913. General Rule 77 read: "Every receiver of the property and effects of the debtor shall, unless 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 set- tle 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 estate belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be per- mitted to make leases, from time to time, as may be necessary, for terms not exceed- ing one year. And it shall be his duty, without any unreasonable 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." Text In italics is new matter, inserted June 17, 1921. Star (•) means read ITot into HEADI^HTB in capitals. For illustration see Rule 1. BEGEIVEB HOT WITHIIT BUI^E — Sequestration proceeding's; receiver ap- pointed in (Morgan 30 Mis 245, 61 NTS 929). POWERS OF BECEITEB UTCIiXTDE — Necessary repairs: lay out money for (Hynea 3 StR 582). GEITEBAIi POWER TO SUE— Assets misapplied: recover (Atty-GenI 77 NT 272) enforce liability of savings bank trustee (Van Dyck 57 How 62). Compel Interpleader: of rival claimants (Winfleld 24 Barb 154). Continue action: begun before appointment: In own name (Talmage 9 Paige 410; Wilds 6 AbNC 307), in name of corporation (Al- bany City Ins Co 42 How 281). Praudiilent conveyances: set aside (Mande- ville 124 NT 376; Porter 9 NT 142; Don- nelly 17 Hun 564; Osgood 48 Barb 463; Foster 2 AbNC 29), and demand reconvey- ance or set aside conveyance as cloud on title so as to subject property to levy and sale on execution (Wright 94 NT 31); where receiver acquired no title to property (•Foster 68 NT 203, sc 2 AbNC 29). Securities transferred by bank: to reclaim (Tallmage 7 NT 328; Gillet 3 NT 479). Select tribunal: (Rockwell 45 NT 166). Summary proceedings: for nonpayment of rent, dispossess mortgagor ('Gurren 106 Mis 652, 176" NTS 573). Take reference or sue: in court (Sands 29 How 305). Transfers of Judgment debtor: contest va- lidity of (Seymour 15 How 355). SAI^E AT FVBI.IC ATTCTIOHr NECESSARY — Manner of sale: not specified and property of nominal value (Edgerley 140 AD 419, 125 NTS 353). DIRECTIONS FOR SAI^B PROPER — Fourteen days' notice: of time and place of sale posted in three public places, and pub- lished 2 weeks in a newspaper (Libby 65 Barb 202). COSTS AGAINST RECEIVER AI.IVOWED — Failure to apply for leave: of court to bring suit (Smith 6 AbP 65; Castle 2 StR 362). Failure to proceed to trial: where good rea- son shown for not doing so ('St John 9 How 343). GENERA]^ DUTIES OF RECEIVER RE- VIEWED — (See Devendorf 21 How 275; Corey 12 Ab NS 427, 43 How 492). OTHER ACTS IMPROPER — Order of court or consent: of parties neces- sary (Corey 12 AbNS 427, 43 How 492). rr. 176-180 CLUVmOER'8 RULES OF CIVIL PRACTICE 160 Rule 176. Security for costs by receiver before action. In all cases where a receiver applies to the court for leave to bring an action, other than a receiver appointed under proceedings supplementary to execution, he shall show in such application that he has sufficient 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 require the receiver to give a bond, with sufficient security, properly acknowledged, and approved by the court, conditioned for the payment of costs. EDITORIAI. NOTES — Source: General Rule of Practice 78, last paragraph, except words "where a receiver applies to the court for leave to bring an action," which Is fourth clause of first sen- tence of first paragraph. Formerly Rule 85 of 1877; Rule 79 of 1880, 1884, 1888; Rule 78 of 1896, 1900. 1910, 1913. Tezt In Italics is new matter, Inserted June 17, 1921. Star (•) means read Not into HEASIiINE in capitals. For Illustration see Rule 1. Eule 177. Application by receiver in supplementary proceedings for leave to sue. Whenever a receiver appointed under proceedings supplementary to execution shall apply for leave to bring an action, he 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, properly acknowledged, and approved by the court, to the person against whom the action is to be brought, con- ditioned for the payment of any costs which may be recovered against such receiver. Leave to bring action shall not be granted except on such written request or on the giving of such security. EDITORIAI. NOTES — Source: General Rule of Practice 78 first paragraph verbatim, except "And" is omit- ted before "leave" and "action" in last sentence read "actions." Formerly 85 of 1877; Rule 79 of 1880, 1884, 1888; Rule 78 of 1896, 1900, 1910. 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Vesting of property in receiver, CPA § 809; Extension of receiver's title to personal property, CPA § 810. Star C) means read Not into HEADIiINE in capitals. For illustration see Rule 1. Rule 178. Sequestration of propeirty of corporation; receiver thereof. All motions for the sequestration of the property of corporations, or for the appointment of receiv- ers 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 that such sequestration is a 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 vidthin the judicial district in which such action is triable. EDITOBIAIi NOTES — Source: General Rule of Practice 80, first sentence verbatim. Formerly Rule 87 of 1877; Rule 81 of 1880, 1884, 1888; Rule 80 of 1896, 1900, 1910, 1913. Tezt in Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. RVImE not AFFI.ICABIiE — Receiver: in foreclosure proceedings (Knick- erbocker Tr Co 41 Mis 204, 83 NTS 930; US Trust Co 101 NY 478, afg 35 Hun 341). Rule 179. Where motion made for removal of receiver; extension of receivership. No motion can be made or other proceeding had for the removal of a receiver elsewhere than in the judicial district in wJiich the order for his appointment was made. 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. EDITORIAI^ NOTES — Source: General Rule of Practice 80, last two sentences verbatim, except "And" is omit- ted before "where." Formerly Rule 87 of 1877; Rule 81 of 1880, 1884, 1888; Rule 80 of 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Extension of existing receivership', CPA § 807. Star (•) means read Not into SEADI^INE in capitals. For illustration see Rule 1. Rule. 180. Power of receiver to employ counsel. No receiver shall have power to employ more than one counsel, except under special circumstances and in particular cases requiring 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. 161 RECEIVERS r. 180 No allowance shall be made to any receiver for expenses paid or incurred in violation of this rule. EDITOBIAI^ NOTES — Source: General Rule of Practice 81 verba- tim, except last sentence, which read: "This rule shall apply 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." Text In Italics is new matter, inserted June 17, 1921. Star (*) means read ITot into HEADl^INE in capitals. For illustration see Rule 1. WHO MAY NOT BE EMFI^O'S'ED AS COTJN- SEt— Connsell: of either party (Ryckman 5 Paige 543; Ray 2 Bdw 165), where receiver is acting adversely to one of them (Hynes 3 StR 582), but third person cannot object if parties do not (Gumming 9 Bos 684; Warren 11 Paige 200; Warren 4 Edw 416). ORDER AUTHORIZING EMFI^OYUENT FBOFER— Defense: to take advice as to (Troy Sav Bk 27 AD 423, 50 NTS 225), to determine whether should be interposed (*Troy Sav Bk 27 AD 423, 50 NTS 225). AIiI^OWANCE OF FEES FROFER — Employment unlawful and Improper: where services valuable (Clapp 49 Hun 195, 1 NYS 919). Necessity for employment: not appearing (♦Corey 12 AbNS 427, so 43 How 492). One-thlxd of assets: in receiver's hands (Kernochan 26 Mis 435, 56 NTS 132). AI.IiOWANCE OF ATTORNEY'S FEES FROFER — Partner of receiver: where receiver does not share therein (Simpson 36 AD 562, 55 NTS 697). Resisting ai>pllcatlon: for accounting by re- ceiver, services rendered in ('Clapp 49 Hun 195, 1 NTS 919). rr. 185-187 ObEYENQER'S ROLES OF CIVIL PRAOTIGB 162 TITLE 24 JUDGMENT Rule 186. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. EDITOBIAIi NOTES — ClTll Practice Act references: Judgment gen- erally, CPA §§ 472-484; Judgment by de- fault, CPA §§ 485-494; Judgment after trial, CPA § 495; Judgment after appeal, CPA §§ 496-499; Entry and docket of judg- ment, CPA §§ 500-503; Enforcement of Form of judgment generally. Judgment against dead person. Final judgment on decision or report awarding interlocutory judgment. Interlocutory and final judgment on default or decision. Proof to be filed on application to court on default. Notice to defendant on application to thfe court for judgment. Application for judgment on failure to answer. Proceedings on application for default judgment if service without the state or not personally. Judgment on trial if some defendants default. Judgment after jury trial of specific questions of fact. Judgment after trial of issues and determination of motion for judgment. Judgment on motion. Powers of court on application after decision of motion for judgment. Judgment after trial of whole issue of fact. Judgment after reference to determine specific questions of fact. Application for additional allowance. Entry of judgment generally. Judgment-roll; regulations affecting. Stay of judgment and enforcement. Satisfaction of judgment wholly or partly. judgment, CPA §§ 504-508; Lien of judg- ment, CPA §§ 509-520; Setting aside judg- ment, CPA §§ 521-529; Satisfaction, assign- ment and cancellation, CPA §§ 530-539; Judgment by confession, CPA §§ 540-545; Judgment on submitted facts, CPA §§ 546- 548. Rule 185. rorm of judgment generally. Judgment shall be entered in such form as may be required by the nature of the case and by the recovery or relief awarded; it shall refer to the verdict, decision or report that authorizes it, and state its result; but shall not set out the provisions thereof, nor of the pleadings nor other papers, in its recitals. In uncontested cases, the facts upon which the jurisdiction depends must be stated. ment is not required, and an order for judgment is made by a judge out of court, the judgment may be entered with the same force and effect as if granted in court.'* Text In italics is new matter, inserted June 17, 1921. Star (<■) means read ICot into HEADIjINS in capitals. For illustration see Rule 1. EDITORIAIi NOTES — Source: New, superseding CCP § 1203, re- vised from CP § 278, as amended by L. 1900, c 147. CCP § 1203 read: "Judgment must be entered, in the first Instance, pur- suant to the direction of the court, at a term held by one judge; except where special provision is otherwise made by law. If notice of an application for judg- Rule 186. Judgment against dead person. If a judgment for a sum of money or directing the payment of money be entered against a party after his death, a memoran- dum of the party's death must be entered with the judgment in the judgment book, indorsed on the judgment-roll, and noted on the docket of the judgment. EDITORIAIi NOTES — Source: CCP § 1210, first sentence, verbatim, except "If" read "Where" and the clause "In a case where it may be so taken, by special provision of law" is omitted after "death," and! the words "margin of the" omitted before "docket," and "be" after "money" read "is." CCP § 1210 revised from 2 RS 359, pt 3, c 6, tit 4. § 7. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Judgment after death of party, CPA § 478. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. ANNOTATIONS APFI.ICABi;E — Judisment after death of party: (CPA S 478). Rule 187. Final judgment on decision or report awarding interlocutory judgment. In a case not othenvise provided for, if the decision on a trial by the court, without a jury, or the report on the trial by a referee, directs an interlocutory judgment to be entered, and the party afterwards becomes entitled to a final judgment, an applica- tion for the latter may be made as on a motion. And where a judgment requires the appointment of a referee to do any act thereunder, the referee must be appointed by 1&3 JUDGMENT rr. 187-190 the judgment, or by the court, on motion, except as otherwise prescribed in the next rule. EDITO'AIAIi NOTES — Source: CCP § 1230 verbatim, except "other- wise" read "in the foregoing sections of this article," "if" read "where" and "on" read "upon" and the last word "rule" read "section." Text In italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADI^INi: in. capitals. For illustration see Rule 1. riNAiJ jvnoxsistT iirasT confobk to DECISION OF COURT— Costs: (Foley 15 AD 276, 44 NYS 588). MOTION rOB FINAI^ JUDGMENT: PROPER — Vrithout moving: to amend interlocutory judgment so as to direct entry of final judgment (McCrea 100 NYS 328). MOTION FOR FINAi; J-UDG-MENT: NECESSARY— Decision: does not direct the final judgment to be entered (Lieglois 22 Hun 71). RVI^E CITED — But not applied: (Central Trust Co 18 AbNC 381; Troughton 173 NYS 659; Uhler 2 NYS 730). Eule 188. Interlocutory and final judgment on defaidt or decision. In an action triable by the court, an interlocutory judgment rendered upon a default in appearing or pleading, or pursuant to the direction contained in a decision or report, may state the substance of the final judgment to which the party will be entitled. It may direct also that the final judgment be settled by a judge or a referee. Final judgment thereon shall not be entered until the settlement thereof shall he made and filed. An interlocutory judgment may award costs generally without specifying the amount thereof. If costs have not been taxed when final judgment is signed,, or settled, the clerk shall not enter the judgment until the costs shall have been taxed and the clerk shall have inserted the amount thereof in the judgment. EDITORIAIi NOTES— Source: CCP § 1231 rewritten; first two sentences are verbatim; last three read: "In that case, final judgment shall not be entered, until a settlement thereof, sub- scribed by a judge or referee, is filed. Where an Interlocutory judgment awards costs, they may be awarded generally, without specifying the amount thereof. Where the final judgment is directed to be settled, and the costs have not been taxed when the settlement thereof is filed, a blank for the amount of the costs must be left in the settlement; and the costs must be taxed, and the blanks filled up accord- ingly, by the clerk, when the final judg- ment is entered." Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. IN ACTION TRIABI^E BY COURT: WHAT IS — Accounting: (Hebblethwaite 83 AD 167, 82 NYS 47). Eule 189. Proof to be filed on application to court on default. On an application • by a plaintiff to a court or judge for judgment by default, if the default was in appear- ing, he must file proof of service of the summons ; if the default was in pleading, proof of appearance ; and, if a copy of the complaint was demanded, proof of service thereof on the defendant's attorney; and, in either ease, proof by affidavit of the default which entitles him to judgment. Mortgages; to declare fraudulent, discovery and injunction- (Kerr 14 CivP 176). Specific performance: of agreement to de- vise property (Galligan 73 AD 71. 76 NYS 786). INTERIiOCUTORY JUDGMENT MAY STATE SUBSTANCE OF FINAI^ JUDG- MENT — No provision: that it must state the sub- stance of the final judgment (Hebbleth- waite 83 AD 163, 82 NYS 471). FINAIi JUDGMENT SETTI.ED BY JUDGE OR REFEREE: SUFFICIENT — "By this court": (Kerr 14 CivP 176). ENTRY OF FINAII JUDGMENT: PROPER — Final settlement: after, subscribed by ref- eree or judge, prior rule (Galligan 73 AD 71, 76 NYS 786). RUI.E CITED— But not applied: (Central Trust Co 42 Hun 604; Troughton 173 NYS 659). To part: of CCP § 1231 omitted from Rule 188 (Clap 97 NY 610). Civil Practice Act references: Application to court for judgment by default, CPA § 489. Star (*) means read Not into HEADUNE in capitals. For illustration see Rule 1. ANNOTATIONS APPlIOABIiE — Application to court: for judgment by de- fault (CPA § 489). EDITORIAL NOTES — Source: CCP § 1214, second sentence ver- batim, except "On" read "upon", "or" omit- ted after "summons," and "also" omitted after "appearance and." Revised from CP § 246, subdlvisdon 2, as amended by L 1877, c 416, L, 1900, c 147. Text In italics is new matter, inserted June 17, 1921. Rule 190. Notice to defendant on application to the court for judgment. 1. If a defendant against whom judgment may be taken on an application to the court or a judge has appeared generally but has made default in pleading, he is entitled to at least five days' notice of the time and place of the application for judgment. 2. In a case where an application for judgment must be made to the court or a judge, the defendant may serve on the plaintiff's attorney at any time before the application for jradgment a written demand of notice of the execution of any refer- ence, writ of inquiry, or of an assessment by a jury, which may be granted on the tr. 190, 191 CLErENGEB'iS RULES OF CIVIL PRACTICE 164 application. Such a demand is not an appearance in the action. Thereupon at least five days' notice of the time and place of the execution of the reference, or writ of inquiry, or of the assessment by a jury, must be given to the defendant by service thereof on the person whose name is subscribed to the demand, in the manner pre- scribed for service of a paper on an attorney in an action. EDITOBIAI^ NOTES — Source: Subdivision 1 Is CCP § 1219, first sentence and subdivision 1, except that the first sentence read: "A defendant, against whom Judgment is taken, pursuant to the foregoing sections of this article. Is en- titled to notices, as follows:" and except that the latter part of subdivision read 'time and place of an assessment by the clerk, and to at least eight days' notice ■of the time and place of an application to the court for judgment." Subdivision 2 is CCP § 1219, subdivision 2 verbatim, except italicized matter, except third sentence which is omitted as covered generally by Rules of Civil Practice 11, and except the last phrase but one, " in the manner pre- scribed in this act," which is omitted. CCP § 1219 revised from 2 RS 591, pt 3, c 9, tit 3, § 21. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Application to court for judgment by default. CPA § 489. Star (*) means read Not into HEASI^IinB in capitals. For illustration see Rule 1. DEFENDANT ENTITI^ED TO NOTICE OF AFFIiICATION — Apipearauce : after, and demand of service of all papers (Selinger 81 Mis 343, 142 NTS 194); and payment by mortgagee of cer- tain installments due (Levy 54 How 129). Demurrer: after, to complaint (Mathot 102 AD 426, 92 NYS 512; Wood 3 Sand 734). No answer: put in by defendant (*Rickards 3 How 413; 'DePorest 1 Rob 700). One notice: only need be given (PxRosen- quest 168 AD 600, 153 NTS 997). NOTICE OF AFFI.ICATION FOR JUDG- MENT: SUFFICIENT — Three days: when made under CCP § 780 (Citizens Sav Bank 49 Hun 238, 1 NTS 450). AFFIiICATION FOB JUDG-KENT TO COUBT OB JUDGE: BEQUXBED — Answer: stricken out ('Ay mar 1 CodeRNS 141). Assault and battery; (Saltus 2 AbP 382, 12 How 342). Carriers: action sounding in tort for loss of goods (Plynn 6 How 308). Morterage: foreclosure of (Levy 54 How 129). Undertaking': to pay damages In Injunction suit, where no amount mentioned in sum- mons (De Forest 1 Rob 700). NOTICE OF EXECUTION OF BEFEBENCE: TIKEXi'Sr — Five days: (Arkenburgh 14 AD 367, 43 NTS 892). Notice: after, duly demanded (Arkenburgh 14 AD 367, 43 NTS 892). NOTICE OF ASSESSMENT BY JUBY: BE- QUIBED — Appearance; after, of defendiant (Saltus 2 AbP 382, 12 How 342). Bail: action upon an undertaking of (Kel- sey 15 How 92). NOTICE OF -WIllT OF INQUIBY: SUFFI. CIENT— Surplusasre: in notice may be rejected (Oot- hout 12 Johns 151). APFEABANCE IN ACTION: 'WSAT CON- STITUTES — Demand of notice: of reference or writ of Inquiry ('Arkenburgh 14 AD 367, 43 NTS 892) AFFEABANCE IN ACTION: SUFFICIENT— Notice: of motion signed by an attorney as "atty's for the deft, J. M. Cooert" (Kel- sey 15 How 92). BUI^E CITED — But not applied: (Metal Shelter Co 172 NTS 275). To part; of CCP § 1219 omitted (White 7 How 357; Southworth 6 How 271; Van Home 6 How 238; Dix 5 How 233; King 5 How 30; Mathot 102 AD 426. 92 NTS 512; Baseett 10 Mis 672, 31 NTS 667). Bule 191. Application for judgment on failure to answer. If, in an action in the su'preme court, the plaintiff be entitled to judgment on the failure of the defendant to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any special term in the district including the county in which the action is triable, or, except in the first district, in a county adjoin- ing the county in which the action is triable. Such application, except in the first and second judicial districts, may be made also 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 direct otherwise. In any county irhere a separate special term for the hearing of motions only, or for the transaction of ex parte business, is regularly held pursuant to at-signment therefor, applications under this rule shall be made only to such a special term as may be designated for that purpose in the special or local rules applicable to such county. Any jiiidgment granted in violation of this provision may be vacated by a special term at which the application might have been made. Except in an action for the annulment of a marriage, for a divorce or for a separation, no finding of fact in writing shall be necessary to the rendition of a judgment on default in appearance Or pleading. EDITOBIAI^ NOTES — Source: All except last sentence is General Rule of Practice 26; last sentence Is new. Formerly Rule 91 of 1849; Rule 85 of 1852; Rule 24 of 1858; Rule 33 of 1871, 1874; Rule 26 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 26, third sentence, read: "In the first judicial dis- trict, every motion or apiplication for an order or judgment where notice is neces- sary, 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 provision is expressly made by law, or the general or special rules of practice." 165 JUDGMENT rr. 191, 192 Text In ItaUcs is new matter, inserted June 17, 1921. ClvU Fxactlce Act references: Application to court for judgment by default, CPA § 489. Star (*) means read Not into HEAD^INIi in capitals. For illustration see Rule 1. FX^INTIFF ENTITLED TO JUDGMENT ON DEFENDANT'S FAIIiTTBE TO ANSWER — Bills and notes: recovery on promissory note (Catlin 13 How 511). UortgaEre: foreclosure of (Harrison 144 NT 326). Nature of action: not specified (Swift) 1 CodeR 25, sc 3 How 280). Fartitlon: (Watson 3 How 290). Undertaking^: of bail, that defendant should render himself amenable to court process (Kelsey 15 How 92, sc 6 AbP 236). AFFI^ICATION TO COURT: BEQUIBED— Answer: failure to ('Amer Ex Bit 6 AbP 1). Attorney and client: recovery of compen- sation ('Bullard 85 NY 253). Creditor's iJlU; (Lyon 61 NY 661). Executors and administrators: action against for unliquidated damages (Scharrmann 49 AD 278, 63 NYS 267). ISortga^e: foreclosure of (Harrison 144 NY 326); deficiency Judgment (Argall 78 NY 239). Penalty: recovery of, against railroad (See Blssell 67 Barb 385). Undertaking: of bail, that defendant shall render himself amenable to court process (Kelsey 15 How 92). APFI^ICATION: WHERE IIIIADE — Special Term: (Argall 78 NY 239). RUI^E AFFI^ICABI^E — Referee: to confirm report of appointed by justice at special term, but where justice at trial term when motion for confirma- tion heard ('Hinman 40 AD 234, 57 NYS 1037). Rule 192. Proceedings on application for default judgment if service without the state or not personally. The following regulations shall apply to an application to a court, or to a judge thereof, for the judgment demanded in a complaint if the summons was served on the defendant without the state or otherwise than personally, and the defendant is in default: 1. On such an application, the plaintiff must file proof that the service is complete, and proof by affidavit of the defendant's default. 2. In an action for a sum of money only, specified in the civil practice act, if the defendant is a nonresident or a foreign corporation, the plaintiff must produce and file proof by affidavit that a warrant of attachment granted in the action has been levied on the property of the defendant, containing a description of the property so attached, with a statement of the value thereof according to the inventory. 3. The court or judge must require proof of the cause of action set forth in the complaint to be made, either before the court or judge, or before a referee appointed for that purpose, except that where the action is brought to recover damages for a per- sonal injury, or an injury to property, the damages must be ascertained by means of a writ of inquiry or by a jury in court as prescribed in the civil practice act. 4. If the defendant be a nonresident, or a foreign corporation, the court or judge to whom such application is made must require the plaintiff or his agent or attorney to be examined on oath respecting any payments to the plaintiff or to any one for his use on account of his demand, and must render the judgment to which the plaintiff is entitled. 5. Before rendering judgment, the court or judge to whom the application is made may require the plaintSf in any case to file an undertaking to abide the order of the court touching the restitution of any estate or effects which may be directed by the judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of the judgment in case the defendant or his representa- tive applies and is admitted to defend the action, and succeeds in his defense. Substituted service; (Lauder 148 AD 739, 133 NYS 340; Stone 31 Mis 740, 64 NYS 139). AFFIiICATION TO COURT: REQUIRED — Nonresident; served by publication (Dow- EDITORIAI^ NOTES — Source: Subdivisions 1, 3, 4, 5 are CCP § 1216, except first sentence; subdivision Z is CCP § 1217, except subdivision 3. CCP § 1216 revised from CP 246, subdivision 3, as amended by L 1876, c 416, L 1895, c 582, and L 1901, c 511. CCP § 1217 revised from CP § 246, subdivision 3. Text In italics is new matter, inserted June 17, 1921. ^ ,_ CivU Fractioe Act reference; Judgment by default where service without state or not personal, CPA § 493. _ ,„^ Star (*) means read Not into HEADIINE in capitals. For illustration see Rule 1. DEFENDANT SERVED OTHERWISE THAN PERSONAIiI^Y — Mail: (Burch 116 AD 865, 102 NYS 305). Publication: (McKinney 88 NY 216; Bart- lett 60 NY 53; Schwinger 53 NY 280; Ber- ger 188 AD 649, 176 NYS 854; Gittings 114 AD 405, 99 NYS 1064, afd 187 NY 538; Downer 50 Barb 232; Hallett 13 How 43; Stow 14 CivP 45; Chapman 11 How 235). ner 50 Barb 232). Service: by publication (Brickson 185 NYS 927). PROOF THAT SERVICE COMPI.ETE: RE- QUIRED— Publication: (Hallett 13 How 43). PROOF THAT SERVICE COMPI.ETE: SUF- FICIENT — Printer's; affidavit defective (*Hallett 13 How 43). NONRESIDENT DEFENDANT WITHOUT PROPERTY IN STATE: KIND OF JUDGMENT OBTAINABI^E — Personal judgment: (Bartlett 60 NY 53; ♦Schwinger 53 NY 280; *German-Am Coffee Co 168 AD 31, 153 NYS 866; 'Burch 116 AD 865, 102 NYS 305); no attachment pos- sible after assignment of property (*Pat- chen 12 AD 475, 42 NYS 35). rr. 192-195 OLEVESGER'a RULES OF CIVIL PRACTICE 166 "^■^5,5^^^ O^ ATTACHMENT; BE- QUIBED — Banks ana 1)anblug': recovery of deposit, nonresident defendant (Gittlngs 114 AD 405, 99 NYS 1064, afd 187 NY 538). /S?^, """^ notes: nonresident defendant (Whitney 148 NY 259, afg 88 Hun 168, 36 NYS 531; First Nat Bk of Salem 35 NYS Divorce: nonresident defendant (Burch 116 AD 865, 102 NYS 305). Foreign oorporatlou: (Haase 148 AD 298, 132 NYS 1046). Foreign judgment: defendant a nonresident (Reed 142 NY 152). Fraudnlent conveyance: to nonresident (Bryan 112 NY 382, dis op). ITonresldent defendant: and summons is for money (McKinney 88 NY 216). Resident defendant: (♦Stow 14 CivP 45). PBOOF BEFOBE BEFEBEE: FBOFEB — IXaBter and servant: damages for wrongful discharge (Bassett 155 NY 46, 49 NE 325). JUDOMEITT BY DEFA1JI.T: FBOFEB — libel; resident defendant served by publi- cation, prior rule ('Davis 37 NYS 163). PBOOF OF CAUSE OF ACTION: BEQVIBED Husband and xrtfe; service on husband by publication (Chapman 11 How 235). Mortgages: foreclosure of (Rauder 148 AD 739, 133 NYS 340; See Broady, Adler & Koch Co 144 NYS 631). Nonresident defendant; (Downer 50 Barb 232). Beferee: appointment of, to take proof is not necessary (De Groot 98 Mis 374, 163 NYS 83). Sneclflc performance: of contract to convey land (Brody 143 NYS 72). Substituted service: (Stone 31 Mis 740, 64 NYS 139). Tenancy in common: suit to quiet title (Ber- ger 188 AD 649, 176 NYS 854). PBOOF OF CAUSE OF ACTION: SUFFI- CIENT — Contract: kind not specified (Stow 14 CivP 45). EXAMINATION BESFECTINQ PAYMENTS TO FI^INTIFF: BEQUIBED — Nonresident defendant: (Downer 50 Barb 232; Brody 143 NYS 72). BUI^E CITED — But not applied: (Connecticut Trust Co 172 NY 497; Haebler 132 NY 363; Meyers 29 Hun 567; Clarke 21 Hun 595; Charlton 102 Mis 238, 168 NYS 876; Wiltse 5 Mis 105, 25 NYS 733). Rule 193. Judgment on trial if some defendants default. If there be two or more defendants in an action, and one or more have answered, and one or more have fanled to answer, judgment by default against those who have not answered, if the action has not been severed, may be rendered at the term at which the action is tried, provided a notice of application for judgment against such defendants, shall have been served on such of them as have appeared. If a party plaintiff has defaulted in replying to a counterclaim, judgment by default may be rendered against him on the counterclaim at the term at which the issues arising on the complaint and answer are tried, on like notice. EDITOBIAI^ NOTES — Source: new. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Judgment may be for or against any of the parties. CPA § 474; Application where one or more defendants have appeared, CPA § 491; Judg- ment upon failure to reply, CPA § 494. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. Rule 194. Judgment after jury trial of specific questions of fact. In an action triable by the court, where one or more specific questions of fact arising on the issues have been tried by a jury, judgment may be taken on the application of either party: 1. If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been determined by the decision of the court, or the report of a referee, an application for judgment on the whole issue may be made as on a motion. 2. If one or more issues of fact remain to be tried, judgment may be rendered ore the whole issue at the term of the court where, or by direction of the referee by whom, they are tried. EDITOBIAI^ NOTES — Source: CCP § 1225. See CP § 254. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. APPIiIOATION FOB JUDGMENT ON WEOI^E ISSUE: FBOFEB — Assignment: to declare void, where ques- tions submitted to jury with facts admitted by pleadings cover whole case (Acker 109 NY 5). Divorce: issues not conclusively determined by jury (»King 91 Mis 254, 154 NYS 794). CHft: of bank deposit ("Walsh 9 CivP 178). Specific performance: where question sub- mitted to jury with facts admitted by plead- ings cover whole case (Hammond 3 HowNS 442). JUDGMENT ON VTHOIiE ISSUE AT COUBT WHEBE TBIED: FBOFEB — FartnersUp: dissolution and accounting, is- sues tried by jury may be disregarded by court (Schneider 19 WkD 527). Specific performance: where findings of jury with facts admitted In pleadings do not cover whole case (Hammond 3 HowNS 442). NOTICE OF AFPDICATION: BEQUIBED— Divorce: (Boiler 96 AD 163, 89 NYS 200). BUI.E AFFI.ICABKE — Beferee: one issue tried by, and another by jury in action at law (•Claffy 124 AD 774, 109 NYS 1). BUI.E CITED — But not applied: (Hammond 101 NY 179, Herb 80 AD 145, 80 NYS 552). Rule 195. Judgment after trial of issues and determination of motion for judg- ment. If a motion for judgment be made and issues of fact arise in the same action 167 JUDGMENT rr. 195-198 and the motion has bee i determined and all the issues have been tried, or otherwise disposed of, final judgment shall be taken: 1. Where an application must be made to the court for judgment on the issir,e last tried, the application must be for judgment on the whole issue, and judgment must be rendered accordingly. 2. Where the action is triable by a jury and the issu,e last tried is tried at a term of the court, the application for judgment on the whole issue may be entertained, in the discretion of the court, at that term with or without notice; if not so entertained, it must be heard as a motion. 3. Where the issue last tried is tried before a referee, his report must award the proper judgment on the whole issue, unless otherwise prescribed in the order of refer- ence. Issues of law; remaining undertermined (•Robinson 35 Hun 215). Slander: pending determination of issue of fact urttess ('Cassavoy 101 AD 128, 91 NTS 876). riNAIi JTrDQIIEITT: KEQTTIRED — Demurrer: overruled as to some causes of action, until case ready for final judg- ment on issues of fact ('Watson 2 LawB 26). jvoauENT oir whoi-e issue bv ref- eree: PROPER — Report for relief: demanded in complaint (Brecltenridge Co 14 AD 629, 43 NTS 800). RVIiE CITED — But not appUed: (Wade 42 AD 330, 59 NTS 76; Pales 4 NTS 285). EDITORIAI. KOTES — Source: CCP § 1221, amended ty L. 1877, c 416. ■Text in Italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. riNAIi JUDGMEITT: PROPER — Demurrer: after, overruled to counterclaim but without disposing of issues of fact (•Selley 53- Mis 46, 102 NTS 1006). Dismissal of counterclaim: for insufficiency of allegations, and not upon the merits (•MoElroy 176 AD 106, 162 NTS 467). Dower: on sustaining demurrer to counter- claim setting up other issues (•Burnett 86 AD 386. 83 NTS 760). Eule 196. Judgment on motion. // no issue of fact remain to be tried, and final judgment has not been directed, as prescribed in section four hundred and forty-one of the civil practice act, final judgment may be entered on application to the court or by the clerk in an action specified in section foiM- hundred and eighty-five of said act. EDITORIAL NOTES — Source: CCP § 1222, revised from CP § 269, as amended by L 1877, c 416, L 1879, c 542. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Entry of de- fault judgment by the clerk, CPA § 485. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. FINAI. JTTDQlfflENT ON APPI^ICATION TO COVRT: PROPER — Assigmment: to set aside, no Issues of fact remaining to be tried (Meyers 29 Hun 571). Demurrer: after, overruled to counterclaim with leave to reply and without disposing of issues of fact (*Selley 102 NTS' 1006); sustained and complaint dismissed on merits (Leonard 168 NT 41). Mechanic's lien: foreclosure of (Albright 157 NTS 81). No issue of fact: remaining to be tried (See US Life Ins Co 46 Hun 201; Roome 23 NTS 667). APPI^ICATION TO COURT: REQUIRED — Interlocutory judgment: provides for entry of final judgment, application to court un- necessary (•Swan 22 Mis 256, 50 NTS 46). FINAD JUDGMENT BY CIiERK: PROPER — Mechanic's lien; foreclosure of ('Albright 157 NTS 81). RUI.E CITED — But not appUed; (Smith 88 NT 661; Mathot 102 AD 426; 92 NTS 512; Hasbrouck 98 AD 563, 90 NTS 977; Maldonado 147 NTS 4; Flatow 17 NTS 506; Uhler 2 NTS 730). Eule 197. Powers of court on application after decision of motion for judgment. An application by either party for final judgment after the decision of a motion for judgment, as prescribed in the last two rules, may be made to the court under section four hundred and ninety of the civil practice act. EDITORIAIi NOTES — Source: CCP § 1223, first sentence, as revised from CP § 369, as amended by L 1877, c 416. Text ini italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADDINE in capitals. For illustrati on s ee Rule 1^ APPLICATION BY EITHER FARTT: PROPER — Attorney and client: recovery of compensa- tion, by plaintiff (Mathot 92 NTS 612). Covenants: breach of personal, to furnish pass, by plaintiff (Hasbrouck 98 AD 563, 90 NTS 977). Defeated party; after successful party fails to enter judgment (Wilson 8'4 NT 674). Execution: to set aside sale, by plaintiff (Winterson 13 Mis 2.01, 34 NTS 183). AFPDICATION TO COURT: REQUIRED — AsBlgimieut ; to set aside as fraudulent (Meyers 29 Hun 567). Mechanic's lien; foreclosure of (Albright 157 NTS 79). Mortgagees: redemption (Bucking 9 Hun 635). RUI.E CITED — But not applied: (US Life Ins Co 46 Hun 203; Maldonado & Co 147 NTS 4). ERRONEOUSDY CITED — CCP § 1228 intended (Crim 32 Hun 352). Rule 198. Judgment after trial of whole issue of fact. Except where otherwise expressly prescribed by law, judgment on the report of a referee after a trial by the referee of the whole issue of fact, or on the decision of the court on the trial of the rr. 198-200 CLSVENOER'S RULES OF CIVIL PRACTICE 168 whole issue of fact without a jury, may be entered by the clerk, as directed therein, on filing the decision or report. EDITORIAi; KOTES Source: CCP § 1228, last sentence, as revised from CP §§ 267 and 272, as amended by L J- O i Vf O «74D* 'i*.f *i^o "^^08 Is new matter, inserted June Star (•) means read Kot into HEADUNE in capitals. For illustration see Rule 1. AFTER TRIAI, BV REFEREE OF WHOKE ISSUE: ENTRY BY CI^ERK PROPER — Contracts: recovery on advertising (Bates 13 CivP 395). Corporations: to set aside mortgage as a preference (Everson 12 NYS 872). Default: in appearance of plaintiff basis of referee's decision (See 'Salter 1 Duer 596). Doubt: in report as to person against whom It should be entered (Baldwin 87 Hun 372. 34 NYS 435). Executors and administrators: commissions as administrator (See McCrady 79 Hun 241. 29 NYS 361). Interlocutory judgment: (Maicas 5& Hun 178, 2 NTS 831). leave of court: is not necessary (Currie 7 Rob 3). Xoxtgagei foreclosure of (Hancock 22 NT 568; see Ward 110 NTS 335). ITatore of action: not disclosed (Cook 22 Hun 307). Fartuersblp : accounting under a second order of referee (*Neibuhr 2 NYS 414). Referee: defective report of ('Jarvis 66 Barb 331); pending the stating and taking of an account by (*McMahon 27 Barb 335). Service: of copy thereof on attorney for opposite party no longer required (Crook 12 StR 663). Waters: determine rights and injunction (Union Bag & Paper Co 94 AD 595, 88 NYS 368). VTorfc and labor: and materials furnished (Hinds 13 NYS 924). AFTER TRIAi; BY REFEREE OF "WHOI-E ISSUE: ENTRY BY CI^ERK RE- QUIRED — Form of decree: to be entered not reported by referee in equitable action, final judg- ment should be settled by court and entered upon its direction (See *Vagen 9 StR 729). Partition; (Paget 26 AD 12, 49 NYS 922, rvd 156 NY 399). EXCEPT WHERE OTHERWISE EX- PRESSIiY PROVIDED BY DAW — Divorce: (Ross 31 Hun 142; 'McCleary 30 Hurt 15.5; Goldner 49 AD 395, 63 NTS 431; See Gorham 58 NTS 50). COURT DECISION ON TRIAI. OF WHOIiE ISSUE WITHOUT JURY: ENTRY BY CDERK PROPER — Additional matters: attached to judgment by Rule 199. Judgment after reference to determine specific questions of fact. If a reference has been had to report on one or more specific questions of fact arising on the issue, and the remaining issues have been tried, judgment may be taken on the application of either party as prescribed in rule one hundred and ninety-five. REFERENCE: clerk without direction from court ('Paine 13 NYS 465). Before decision: of judge rendered ('Lent- schner 80 AD 43, 80 NTS 146; 'Benjamin 35 Hun 115; 'Chamberlain 14 AbP 241, 9 Bosw 212; 'Benjamin 7 CivP 203). Copy of rule: for judgment to be annexed to roll not signed by judge (See Whitehead 9 How 35). Costs: granted when not included in deci- sion CLoeschigk 3 Rob 331); omitted (•Foley 15 AD 276, 44 NTS 588). Decision: of judge not appearing from judg- ment roll ('Thomas 14 How 426). Direction liy court: to enter lacking ('Putzel 8 NTS 651). Dower: discovery of (Clark 84 Hun 362, 32 NTS 325). Executors and administrators: against gran- tees of land after payment of mortgage (Weekes 4 NYS 892). Injunction: to restrain interference with party wall (Roberts 39 Supr 272). Marine Insurance: recovery for loss of cargo (See Bunten 8 Bos 448, afd 2 Keyes 667). MeclianlCB lien: to enforce (See McNulty 152 AD 181, 137 NYS 27). Mortgages: to set aside sale on foreclosure (Oliver 82 Hun 436, 31 NYS 740). Sales: breach of warranty: after judgment dismissing complaint on the merits (Dooley 169 NY 135). Signature: of judge is not required on judg- ment (Clapp 97 NY 610; Delaney 7 Hun 66). COURT DECISION ON TRIAI^ OF WHOIiE ISSUE WITHOUT JURY: ENTRY BY CI.ERK REQUIRED — Entry: by plaintiff's attorney of substance of decision without application to court unauthorized (Bentley 27 Mis 674, 58 NTS 824). , RUDE APPDICABDE — County courts: (Cook 22 Hun 307). Special proceeding: to compel assignee to convey property to creditor ('Potter 44 Hun 197); to compel attorney to pay over insurance money collected for beneficiary CCartier 118 AD 342, 103 NTS 505). RUI.E CITED — Applied: to part of CCP § 1228 omitted (Bed- ford 140 AD 282, 125 NTS 173; Albany Brass & Iron Co 30 AD 76, 51 NTS 779; Crim 32' Hiin 352; Van Gelder 26 Hun 361; Schroeter 23 Hun 230; DeLaney 7 Hun 66; Baker 97 Mis 264, 160 NTS 1107; Valentine 8 WkD 478; Durant 19 CivP 203, 12 NTS 145). But not appUed: (Shrady 77 AD 261, 79 NTS 79; Schroeter 23 Hun 230; Troughton 105 Mis 638, 173 NTS 659). EDITORIAD NOTES— Source: COP § 1226, as revised from CP § 272, amended as required by the new pro- visions contained in this article. Text in italics is new matter, inserted June 17, 1921. Star (') means read Not into READDINE in capitals. For illustration see Rule 1. JUDG-MENT AFTER PROPER — Remaining Issues: after they are tried (Central Trust Co 18 AbNC 381). RUDE CITED — But not appUed: (Kelly 18 AbNC 416, 420n). Rule 200. Application for additional allowance. An application for an additional allowance can only be made to the court before which the trial is had or the judgment rendered, and in all cases shall be made before final costs are adjusted. EDITORIAD NOTES— Source: General Rule of Practice 45. For- merly Rule 86 of 1849; Rule 81 of 1852; Rule 52 of 1858; Rule 56 of 1871, 1874; Rule 47 of 1877; Rule 44 of 1880, 1884, 1888; Rule 45 of 1896, 1900, 1910. Text In Italics is new matter, Inserted June 17, 1921. 169 JUDGMENT rr. 200, 201 Civil Practice Act references: Additional allowances to plaintiff in real property and certain other actions, CPA § 1512; Addi- tional allowance to either party in diffi- cult and certain other cases, CPA § 1513. Star (*) means read ITot into HEA.D&IITZ: in capitals. For illustration see Rule 1. AFFLICATIOIT TO COURT BErOBE WHICH TKIAI^ HAD OB JUDamEH'T BEN- SEBED: BEQUIBEB — Bills and notes: recovery on promissory note (Riverside Bank 75 AD 531, 78 NYS 325; Eldredge 39 Supr 295). Cbaaubers : (Main 16 How 271). Conversion: (Saokett 4 How 71). Ejectment; (*Wolfe 2 NY 570, 4 How 208). Pixst district: not at judge's chamber out- side district (Hun 92 NY 651). Justice: at chambers cannot pass on appli- cation (Mann & Others 6 How 235). Katnre of case: not disclosed (Dyckman 5 How 121; Niver 5 How 153, SC 3 Code R 192). Public officer: prosecution against (Van Rensselaer 5 How 242). Beferee: cannot pass on question (Howe 4 How 252). Besildence: of judge who tried case in other district does not permit application out of first judicial district where tried (Bear 36 Hun 400). School tax: damages for levying (Saratoga R Co 9 How 339). Vendor and pnrcliaser: breach of contract (Gori 6 Rob 563, SC 3 AbNS 51). Volontary assignment: to set aside (Osborne 8 How 31). Waiver: by defendant ('Wiley 88 Hun 177, 34 NYS 415); by plaintiff ('Wilber 4 AD 444, 38 NYS 893). APPIiICATIOIT TO PABTICUIiAB COURTS: PBOPEB — Appellate division: hearing exceptions in first instance (*Riverside Bank 75 AD 531, 78 NYS 32'5). Court: in which action pending upon sub- sequent application upon affidavit or other- wise ('Plint 2 CodeR 80). Covirt of appeals: (*Wolfe 2 NY 570, 14 How 208). General term: without notice or hearing (•Moskowitz 20 Mis 558, 46 NTS 462, rev 19 Mis 429, 43 NYS 1130); on agreed case (•PvFitchburg 133 NY 239). AFPI^ICATIOIT: TIMEI.V— Appeal: after (Beals 29 How 101). Assessment: before, by jury of value of property on which rate of allowance to be estimated ('Flint 2 CodeR 80). Costs: adjusted and judgment entered (•Winne 19 Mis 410, 44 NYS 262; 'Clarke 29 How 97, afd 29 How 111, ap dis 34 NY 355; 'Navigation Co 164 NYS 702); altho other costs awarded on application to open default are still to* be adjusted (Jones 21 WkD 287); before taxation of (Riverside Bank 75 AD 531, 78 NYS 325); taxed under interlocutory judgment (Abbey 57 AD 417, 68 NYS 252). Judgment: after entry of ('Martin 3 Sand 755). J^itlgatlon ended: after all (Powers 12 How 565). On appeal: ('Van Rensselaer 5 How 242). Bemlttitnr: after, with judgment absolute by court of appeals (Parrott 26 Hun 466; ♦Eldredge 39 Supr 295). Trial: after (Saratoga R Co 9 How 339); before and costs allowed ('Toch 9 AD 501, 41 NYS 353). APPI^ICATION: SUPPICIEITT— Affidavits: with necessary facts lacking (•Gori 6 Rob 563, 3 AbNS 51). Ex parte application: ('Howe 4 How 252). Beferee: case tried by, application must be on motion, upon papers duly served (Mann & Others 6 How 235). Without special notice: if before same judge at same term (Mitchell 7 How 490; Mann & Others 6 How 235). ASDITIOHAI^ AKI^OWANCE: QBAITTED — Carriers: loss of goods ('Gould 4 How 185). Ejectment: ('Wolfe 2 NY 570, SC 4 How 208). Executors and administrators: accounting by ('Wilcox 26 Barb 316). Guardian: ad litem, partition (Weed 31 Hun 10); special, to sell infants real estate ('Matthews 27 Hun 254). Husband and wife: recovery of money be- longing to 'Wife's separate estate (South- wick 49 NY 510). Injunction: to restrain acceptors from pay- ing draft ('Powers 12 How 565). malicious prosecution: (Moulton 1 AbNC 193). Master and servant: injuries to servant (Sheridan 101 AD 534, 91 NTS 1052). Mortgage: foreclose, on real property (Waterbury 152 NY 610; set aside lien of (Krekeler 62 NY 372). Mnnlcipal coriraratlons : breach of contract (Delvin 15 AbNS 31). Nuisance: injunction to restrain ('Black 32 AD 468, 53 NYS 312). Partition: (Grossman 64 AD 554, 72 NYS 337; Cooper 27 Mis 595, 59 NYS 86; 'Wil- liams 13 AbP 297). Railroads: recovery of tolls (PvNYC RK Co 29 NY 418). Referee: case tried by (See Niver 5 How 153, 3 CodeR 192). Sales: action for goods sold and delivered Natl Lead Co 22 Mis 372, 49 NYS 379). Specific perf oxmajLce : of land contract (Schift 104 AD 42, 93 NYS 853; together with accounting (Wilber 4 AD 444, 38 NYS 893). Torts; interference with premises and ten- ants of plaintiff (Morrison 20 Hun 23). Two allowances: in same case (See 'Mobile 8 CivP 212). Voluntary asslgnmen/t: to set aside (See Osborne 8 How 31). WUls: construction of ('Downing 37 NY 380; 'Hotaling 14 AbP 161); probate of ('Noyes 70 NY 481). Rule 201. Entry of judgment generally. A judgment shall be signed by the clerk and filed in his office only during office hours, and such signing and filing shall con- stitute the entry of the judgment. Judgment may be entered in term or vacation. The clerk, in addition to the docket-books required to be kept by law, shall keep a book styled the "judgment-book," in which he shall record all judgments entered in his office. EDITORIAL NOTES— Source: First and last sentences are CCP § 1236; second sentence is CCP § 1202; first sentence covers General Rule of Practice 8; adding requirement for a "judgment book"; words "only during office hours" are taken in substance from General Rule of Practice 8. CCP § 1236 revised from CP §§ 279, 280, and 2 RS 360, pt 3, c 6, tit 4, § 9, as amended by L. 1897, c 188. CCP § 1202 revised from L 1840, c 386, § 23. General Rule of Practice 8 was formerly Equity Rule 1 and Law Rule 6; Rule 4 of 1852; Rule 9 of 1858; Rule 12 of 1871, 1874; Rule 8 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Star (') means read Not into HEADl^INa in capitals. For illustration see Rule 1. rr. 201, 102 CLEVENGEB'S RULES OF CIVIL PRACTICE 170 BY CIiEBK: BE- JVBaiCGITT SIGNED QXTntES — Attorney ana client: to enforce attorney's hen (Wise 113 AD 859, 99 NYS 663). Copy of judgment: need not be signed (•Lythgoe 76 HuH 147, 26 NYS 1063). Counterclaim: for sum of money only de- murrer overruled and order filed (Selley 53 Mis 46, 102 NYS 1006).- Judicial saie: under order of surrogate to pay debts (See Sears 17 NY 445). Mechanic's Ilea: indemnity against (Bear- ing 55 Mis 58, 106 NYS 219). Nature of action: not disclosed (Good 119 NY 153; Mason 29 AD 602, 51 NYS 178; Blashfleld 27 Hun 114; Bleya 141 NYS 1016; Overton 3 StR 169). Omission: to sign judgment roll does not affect validity of judgment (See Lythgoe 75 Hun 147, 26 NYS 1063). Partition: (Van Orman 9 Barb 500). Vendor and purchaser: breach of warranty as to encumbrances (Burke 125 AD 261, 109 NYS 225). Vrills: construction of (See Skinner 43 NY 99). JUDGMEII'T PHiED in Cl^ERK'S OFFICE ONIiY DtTBING OFFICE aOTTBS: BE- QXriBED — Chattel mortgage: to enforce (Hathaway 54 NY 97). Filing before office hours: does not give any preference (Wardell 10 Wend 573). Judgments: filed after become liens equally at next ofllce hour after such filing (Prance 26 How 180). JUDGMENT FHiED IN CZEBK'S OFFICE: timei;y — Eiglit o'clock: In the evening ('Hathaway 54 NY 97). ENTBY OF JUDGMENT: WHAT CONSTI- TUTES — Attorney and. client; to enforce attorneys lien; signing and filing (Wise 113 AD 859, 99 NYS 663). Mechanic's lien: foreclosure (See Booth 18 AD 407, 46 NYS 457); signing and filing judgment (Dearing 55 Mis 58, 106 NYS 219). Mortgage: foreclosure of, deficiency judg- ment (See Kupfer 30 Hun 74; see Jay 28 How 107). Nature of case: not disclosed (Clark 90 AD 477, 86 NYS 472; see Mason 29 AD 602, 51 NYS 178). Farlaiership : accounting (See Renouil 2 Sand 641). Signing and filing of judgment: (Stelley 53 Mis 46, 102 NYS 1006; Bleja 141 NYS 1016). ENTBV OF JUDGMENT IN TEBM: FBOFEB — Nunc pro tunc: (See Jewett 108 AD 322, 95 NYS 631). KEEPING OF JUDGMENT BOOK BY CI^EBK: BEQUIBED— Nature of case: not d/isclosed (Mandeville 68 NY 528). BECOBD OF JUDGMENTS KEFT IN JUDG- MENT BOOK: BEQUIBED — Attachment: (See Steuben 78 NY 252). Condemnation proceeding: award of apprais- als (Lent 130 NY 504). Damages: (Stimson 9 How 86). From docket hook: (Sheridan 81 NY 182). Judgment: action on recovered by confes- sion (Mandeville 68 NY 528). Mortgage: to have deed declared (Whitney 67 NY 40). Nature of case: not disclosed (Good 119 NY 153; Knapp 82 NY 366, afg 46 Supr 200; Tudor 109 AD 521. 96 NYS 392; Blashfleld 27 Hun 114; Schenectady Plank R Co 6 How 226; Bentley 4 How 335; Currle 7 Rob 3; Roberts 39 Supr 272; Overton 3 StR 169 Bleja 141 NYS 1016). Partition: (See Parish 87 AD 430, 84 NYS 506; Lythgoe 75 Hun 147, 26 NYS 1063; Van Orman 9 Barb 600); delay in entering on judgment book does not afEect validity of (Lynch 42 Barb 691). Ballroads: injury to animals (Morrison 32 Barb 568). Substantial compliance: sufficient (Appleby 2 Rob 689). Tort: (Lentilhon 3 Sand 721). Undertaking: on appeal (Murray 2 NYS 487). Vendor and purchaser: breach of warranty as to encumbrances (Burke 125 AD 261, 109 NYS 225). ENTBY OF JUDGMENT: BY WHOM — Defeated party: upon failure of successful party to do so (Wilson 84 NY 674; Ten Byck 24 CivP 6, 30 NYS 859; Thompson , 4 CivP 270; Purdy 15 AbP 160). BUl^E CITED — Applied: to part of CCP § 1232 omitted (Maldonado 162 AD 1, 147 NYS 2; I>acus- trine P Co 16 Hun 486; NY City Bap Mis Soc 17 Mis 733, 40 NYS 1032, afd 9 AD 627, 41 NYS 720). But not appUed: (Bayer 54 Hun 189, 7 NTS 566; Central Trust Co 42 Hun 605; Prior 15 CivP 448; Central Trust Co 18 AbNC 381; Yaw 66 AD 317, 72 NYS 765). Rule 202. Judgment roll; regulations affecting. The clerk, on entering final judg- ment, must immediately file the judgment-roll, and the following regulations shall apply thereto: 1. It shall be prepared and furnished to the clerk by the attorney for the party at whose instance the final judgment is entered, except that the clerk must attach thereto the necessary original papers on file, but the clerk, at his option, may make up the entire judgment-roll. 2. It shall consist, except where other special provision is made by law, of the fol- lowing papers: the summons; the pleadings, or copies thereof; admissions; the final judgment, and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order which in any way involves the merits or necessarily affects the judgment. 3. If judgment be taken by default, the judgment-roll must contain also the papers required to be filed, on so taking judgment, or on making application therefor, together with any report, decision or writ of inquiry and return thereto. 4. If judgment be taken after a trial, the judgment-roll must contain the verdict, report, or decision, each offer, if any, made as prescribed in the civil practice act, and the exceptions or case then on file. 5. // judgment of affirmance be rendered on an appeal to the appellate division of the supreme court, the judgment-roll shall consist of a copy of the judgment, annexed to the papers on which the appeal was heard. 171 JUDGMENT I. 202 6. On an appeal to the court of appeals from a judgment or order of the appellate division of the supreme court, the opinion of the appellate division, if any, shall be deemed, for the purposes of the appeal, to be a part of the judgment-roll or appeal papers. 7. //, after an appeal, subsequent proceedings be taken at the special term or trial term before the entry of final judgment, the judgment-roll must contain also the papers relating thereto. 8. The clerk must make a minute, on the back of each judgment-roll filed in his office, of the time of filing it, specifying the year, month, day, hour, and minute. EDITORIAZi VOTES — Source: Subdivision 1 is CCP § 1238; sub- division- 2 is CCP § 1237, first sentence, part; subdivision 2 covers CCP § 512, last sentence; subdivisions 3 and 4 are CCP § 1237, second and> tliird sentences; subdi- vision 5 is CCP § 1354, first sentence; sub- division 6 is CCP § 1237, last sentence; sub- division 7 is CCP § 1354, last sentence; subdivision 8 is CCP § 1239, first sentence. CCP § 1238 revised from CP § 281. CCP § 1237 revised from CP § 281, subdivisions 1 and 2, as amended by L 1877, c 416, L 1879. o 642, L 1913, c 545. CCP § 512 re- Vised from CP I 246, last paragraph, sub- division 1. CCP § 1354 amended by L, 1879, c 542. CCP § 1239 revised from 2 RS 360, pt 3, c 6, tit 4, § 11. Text in Italics is new matter, inserted June 17, 1931. Civil Practice Act references: Judgment-roll must be filed before enforcement, CPA § 603. Star (•) means read Not into HEADI^INE in capitals. For illustration see Rule 1. CiiERK MTTST humediateiiV tumE judg- ment BOI^: BEQUIBE9— Clerk: under no absolute duty to do so, un- less papers needed to constitute roll are on file (Forsyth 15 Hun 235). Copy: of Judgment (Knapp 82 NY 366). Connty clerk: must keep it on deposit at his public ofiice (Mandeville 68 NTS 528). Directory: only (See Stimson 9 How 86). Mechanic's lien: indemnity against (Dear- Ing 106 NTS 219). Nature of case: not disclosed (Good 119 NY 153; Bleja 80 Mis 679, 141 NTS 1016; see Appleby 2 Rob 689). FBEPARED AND FURNISHED: BY WHOM Attorney: for party at whose instance final judgment entered (Knapp 82 NY 366, aff ■ 46 Supr 200; Commercial Bank 13 AD 603, 43 NTS 985; Gerity 163 NY 119, 57 NB 290). Clerk: (Blashfleld 27 Hun 114; Kenouil 2 Sand 641). JUDGMENT ROZ.1^: WHAT INCI^UDED— Affidavits: and notice of motion for refer ence ('Schrader 113 AD 395, 99 NYS 137) of disbursements and attendance of wit nesses CSchen & Sar PI R Co 6 How 226) on which requisition to sheriff was founded (See 'Kerrigan 10 How 213); other papers on application to conform, modify or cor- rect award of arbitrators (Poole 5 ClvP 284). Answer: although absence does not render roll a nullity (Renoull 2 Sand 641); of de- fendant as to whom action discontinued (•BohnhofE 147 AD 672, 132 NYS 603). Appearance: of party (Hendrick 66 Mis 576, 122 NYS 162). BUI of costs: ('Schen & Sar PI Rd Co 6 How 226). Bill of exceptions: (Schen & Sar PI R Co 6 How 226). Bill of particulars: (See *Kreiss 8 Barb 439); not involving merits ('Arrow SS Co 23 CivP 234, 26 NYS 948); served on de- mand or in compliance with order (Steiger 138 AD 246, 122 NYS 1028). Conclusions of law: (Drake 38 AD 71, 55 NYS 920). Copy: of judlgment (Artisans' Bk 34 Barb 553), Demurrer: after its abandonment ('Brown 18 NY 495); order overruling, order of ref- erence (Breckenridge Co 14 AD 620, 43 NYS 800). Pallure to annex: summons and complaint does not give defendant right to treat judg- ment roll as no Judgment and so appeal from order only (Martin 2 AbP 390). Pallure to file: appearance does not affect validity of judgment (Hendrick 66 Mis 676, 122 NYS 162). Pallure to include: necessary papers does not render Judgment void (Breckenridge Co 14 AD 629. 43 NYS 800). G-uardlan: order granting allowance to (Cotes 29 How 326). Motion for judgment: on answer as frivo- lous, order denying ('Goldstein 45 Mis 599, 91 NYS 32). Motion: for new trial ('Ford Motor Co 271 F 626); to vacate award of arbitrators ('Poole 5 CivP 284). Nature of case: not disclosed (Chester 5 NYS 823). Notice: of adjustment ('Schen & Sar PI R Co 6 How 226); of trial ('Sweeney 96 AD 399. 89 NYS 314). Order: dismissing complaint (Martin 4 AbP 365; Kipper 2 StR 386); for judgment (Blashfleld 27 Hun 114); granting addi- tional allowance (Oakley 6 AD 229, 39 NTS 1001); of general terms reversing judg- ment absolutely (Mehl 46 NY 539); of ref- erence, altho omission not ground for re- versal on appeal (Gerity 163 NY 119, 57 NE 290). Orlgrinal answer: and order directing substi- tution ('Dexter 70 Hun 515, 24 NYS 129). Original summons: ('HofEnung 18 AbP 14); altho absence does nbt render roll void (Miller 59 Barb 434); and complaint (see 'Chrlstal 88 NY 286. afg 24 Hun 155; Martin 2 AbP 390); and ord'er of reference, but absence renders Judgment erroneous, not void (Calkins 21 Barb 276); pleadings and other papers (Oceanic Steam Nav Co 144 NY 663. 39 NE 360). Plaintiff's requests: to find (See Elterman 117 AD 519, 102 NYS 613. rvd 192 NY 113). Postea: (Martin 60 StR 619, 29 NTS 1119). Proceeding's; pleadings and papers in action (PvStephens 51 How 235). Proof of service: of summons where answer filed or appearance made ('B-osworth 53 NY 597). Service: of summons on failure to answer (Macomber 17 AbP 35). SIGNATURE OP JUDGMENT ROI^i; BY CLERK: REQUIRED — Nature of action: not disclosed ('Boelet 55 NY 648). Omission to sign: may be amended nunc pro tunc (Van Alstyne 25 NY 489); does not affect validity of Judgment (See Lyth- goe 75 Hun 147, 26 NYS 1063). JUDGMENT ROLL: SUPPICIENT — Process: nor pleading contained CTowns- hend 4 Duer 342). ON JUDGMENT APTER TRIAL, JUDG- MENT ROLL: WHAT INCLUDED— Case: (Cornish 36 Hun 162); and exceptions (Oceanic Steam Nav Co 144 NY 663, 39 NE 360). Decision: (Smith 15 NY 590; Thomas 14 How 426). rr. 202-204 GLEVENGElt'S RULES OF CIVIL PRACTICE 172 Exceptions! (Conolly 16 How 224), FlnOlngs: of judge (Equitable Foundry Co 33 Hun 173). Referee: report of (Lyddy 24 Hun. 377; Thomaa 14 How 426). Verdict: (Miller 70 Hun 61, 23 NYS 1104; McLean 13 Hun 300; Thomas 14 How 426); altho absence does not render judgment void (Cook 1 Duer 679), not ground for setting aside judgment itself (Overton 3 StR 169). ON AFFEAJ^ TO COURT OF AFPEAIiS, JUDGnnsITT BOIib: WaAT INCI^UDED — Case: made on first trial (•Wilcox 31 NY 648). Opinion: of appellate division (Haydorn 225 NY 89; Ellis-Joslyn Pub Co 223 NY 449; Moore 220 NY 320, 115 NB 719; PxFlynn 218 NY 124; Richard 215 NY 351: Rives 215 NY 39 dis op); of trial judge ('Magie 14 NY 435). amnTTE by c^ebk or time of FiiiiirG: REQUIRED— Assignment: creditors action to set aside (Aultman & Taylor Co 163 NY 60). RTJIiE AFFI^ICABIiE — Bastardy proceeding: court of special ses- sions CPxThomann 60 Mis 414, 113 NYS 581, rvd 128 AD 317, 112 NYS 702). RUl^E CITED — But not appUed: (Bimboni 157 NYS 302; Maldonado & Co 147 NTS 2). Rule 203. Stay of judgment and enforcement. The entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, are not stayed by an exception, the preparation or settlement of a case, or a motion for a new trial, unless an order for such a stay is procured and served, or such stay is granted in open court at the close of the trial. EDITORIAIi NOTES — Source: All except last clause in CCP § 105, first sentence, first part; last clause is new. CCP § 105 revised from 1832, c 128, § 1, adapted to the existing mode of procedure. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Stay generally, CPA § 167; When stay of proceedings not to exceed twenty days, CPA § 169. Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. Rule 204. Satisfaction of judgment wholly or partly. If an execution issued on a judgment, wholly or partly for a sum of money, or directing the payment of a sum of money, he returned wholly, or partly, satisfied, the clerk must make an entry of the satisfaction, or partial satisfaction, in the docket of the judgment on which it was issued. Thereupon the judgment is deemed satisfied to the extent of the amount returned as collected, unless the return he vacated by the court, and an entry made thereof on the docket. EDITORIAL NOTES — Source: except last clause is CCP § 1264; last clause is new. CCP § 1264 revised from 2 RS 363, pt 3, c 6, tit 4, § 26. Text In italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADIIINE In capitals. For illustration see Rule 1. JUDaiHENT DEEiaED SATISFIED BT RECORD OF SATISFACTION— Bankruptcy: satisfaction undone and money restored ('Hutchinson 190 US 552). Satisfaction: unnecessary, unauthorized and officious, not executed at request of defend- ant or any one liable to pay judgment (•Lindenborn 115 NYS 962); without pay- ment ('Mandevilie 68 NY 529). RETURN VACATED — Improper satisfaction: (See Dundee Nat Bk 9 NYS 352). 173 DECLARATORY JUDGMENT rr. 210-214 TITLE 25 DECLARATORY JUDGMENT Rule 2il0. Practice assimilated. 211. Prayer for relief. 212. Jurisdiction discretionary. 213. Verdict of jury on facts. 214. Costs. XDITOBIAIi NOTES — Civil Frootice Act references: judgments, CPA § 473. Declaratory- Rule 210. Practice assimilated. An action in the supreme court to obtain a declara- tory judgment, pursuant to section four hundred and seventy-three of the civil prac- tice act, in matters of procedure shall follow the forms and practice prescribed in the civil practice act and rules for other actions in that court. EDITORIAI. NOTES — Source: new. Test in Italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. Rule 211. Prayer for relief. The prayer for relief in the complaint shall specify the precise rights and other legal relations of which a declaration is requested and whether further or consequential relief is or could be claimed. If further relief be claimed in the action, the nature and extent of such relief shall be stated. ESITOBIAI^ NOTES — Source: new. Text in Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADI^INE in capitals. For illustration see Rule 1. Rule 212. Jurisdiction discretional y. If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised. EDITORIAI^ NOTES — Source: new. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. B.ule 213. Verdict of jury on facts. In order to settle questions of fact necessary to be determined before judgment can be rendered, the court may direct their submis- sion to a jury. Such verdict may be taken by the court before which the action is pending for trial or hearing. The provisions of sections four hundred and twenty- nine and four hundred and thirty of the civil practice act apply to a verdict so rendered. ESITORIAX NOTES — Source: new. Text In Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. Rule 214. Costs. Costs in such an action shall be discretionary and may be granted to or against any party to the action. EDITOBIA^ NOTES — Source: new. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. rr. 220, 221 CLEVENGER'8 RULES OF CIVIL PRAOTIOE 174 TITLE 26 NEW TRIAL Rule 220. Motion for new trial on exceptions to be heard in the first instance in appellate division. 221. Motion for new trial at special term. 222. Eeview of interlocutory reference or inquisition. 223. When notes of stenographer treated as minutesi of judge. 224. When order on motion for new trial to specify ground's. EDITOBIAI^ NOTES— Civil Practice Act references: Motion for new trial upon judge's minutes, CPA § 549; Motion in appellate court for new trial where trial was by jury, CPA § 550; Motion in appellate court for new trial where In- terlocutory judgment is directed, CPA § 551; Motion for new trial to be made at special term, CPA § 552; Review where specific questions are triea by jury, CPA § 553; Motion for new trial after judgment, restitution, CPA § 554; When exception not to prejudice motion for new trial, CPA § 555; Motion for a new hearing, after trial of specific questions by a referee, CPA § 556. Bule 220. Motion for new trial on exceptions to be heard in the first instance in appellate division. If, after a jury trial, an order be made directing that exceptions be heard in the first instance in the appellate division, the order entitles the party applying therefor to move in the appellate division for a new trial, after due notice and on a case made and settled containing the exceptions and so much other matter, only, as may be necessary or appropriate to enable the appellate division to decide the motion. Until the hearing of the motion in the appellate division, the trial judge, or, in case of his absence or inability, the court at special term, shall continue to have jurisdiction to set aside the order thus made by the trial judge. EDITOBIAIi NOTES — Source: CCP § 1000, last three sentences re- written to state present law on subject; supersedes General Rule of Practice 31, last sentence. CCP § 1000 revised from CP § 265 relating to hearing exceptions at general term before judgment, as amended by Li 1877, c 416, 1. 1882, c 29, !■ 1895, c 946. General Rule of Practice 31 was for- merly Equity Rule 5-9; Rule 74 of 1849; Rule 69 of 1852; Rule 33 of 1858; Rule 40 of 1871, 1874; Rule 31 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 31, last paragraph, read: "When any spe- cific 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 sub- stitute 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 groundi that the verdict or re- port 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 con- taining exceptions, as may be required; which case or exceptions must be eerved and settled in the manner prescribed by the rules of court for the settlement of cases and exceptions in other cases. Such mo- tions must be made, in the first instance, at Special Term." Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Motion in ap- pellate court for new trial where trial was by jury, CPA § 550. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. ORDER DXBECTINO' REASINQ OF EX- CEPTIONS IN APPEKKATE DIVISION PBOPEB-^ Action triable by court; restraining corpo- rate ofiJicers from paying themselves sal- aries ('MacNaughton 114 NT 574). SETTLEMENT AND SIGNING- OF CASE REQUIRED — New trial: of application for reference (Green 6 Mis 130, 26 NTS 37). Rule 221. Motion for new trial at special term. A party intendiw.^ to move for a new trial of an issue of fact must make a case and procure the same to be settled and signed in the same manner as on an appeal from a judgment rendered after the trial of such an issue, except where the motion is on the minutes of the judge who presided at a trial by a jury, or on an allegation of irregularity or surprise or except as other- wise provided by law. // the motion for a new trial be made for the purpose of reviewing a trial by jury of one or more specific questions of fact, arising on the issues in an action triable by the court, the motion can be made only at the term where the motion for final judg- ment is made or the remaining issues of fact are tried, as the case requires. EDITORIAI^ NOTES — Source: first paragraph, first part, is CCP § 997, first sentence rewritten; last para- graph, second part is CCP § 998, first sen- tence rewritten; last paragraph is CCP § 1003, last sentence rewritten; covers Gen- eral Rule of Practice 31, last paragraph, part. CCP § 997 revised from CP §§ 264, 268, as amended by Li 1877, c 416, L 1895, c 946. CCP § 998 revised from CP §§ 268, 223. CCP § 1003 revised from 2 RS 414, pt 3, o 7, tit 4, § 29, as amended by L, 1895, c 946. General Rule of Practice 31, last paragraph, was formerly Equity Rule 59; Rule 74 of 1849: Rule 69 of 1852; Rule 33 of 1858; Rule 40 of 1871, 1874; Rule 31 of 1877. 1880, 1884, 1888, 1896, 1900, 1910, 1913. CCP i 1003, last sentence, read: "Where 175 NEW TRIAL rr. 221-224 the judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions, taken at the trial, to be heard at a term of the appellate division of the supreme court, a motion for a new trial can be made only at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires." Text In Italics is new matter, inserted June 17, 1921. CItU Practice Act references: Case, when necessary, CPA § 575; Case, contents of, CPA § 576. Star (*) means read Not into HEADIiIITE in capitals. For illustration see Rule 1. MOTION rOR NEW TBIAi; TO KEVIEW JUBY THIAIV OF SPECIFIC ISSUES PROFBB — trsnxious aerreement: affecting bond and mortgage, court cannot order nonsuit at close of plaintiffs evidence on ground of insufficient evidence (Birdsall 51 NY 43). CASE NECESSABT— Newly discovered evidence: based on affi- davits, action to recover deposit tried by court (Solomon 128 AD 441, 112 NTS 779). Bnles appUoable: to motion made In munici- pal court on ground of fraud and newly discovered evidence (Altmark 55 Mis 195, 105 NTS 205). MOTION FOB NEW TBIAi; TO BETIEW JXTBV TBIAI^ OF SPECIFIC ISSUES NECESSARY— Party: falling to move deemed to have ac- quiesced in verdict (Chapin 23 Hun 12: Ward 15 Hun 600). Re-ezamlnatlon: of merits of part of con- troversy submitted obtainable only in this manner (Bowen 35 Hun 434). MOTION FOB NEW TBIAI^ TO REVIEW JURY TBIAl^ OF SPECIFIC ISSUES TIMEI^Y— Judgment: after (»Chapin 23 Hun 12, 80 NY 270). Rule 222. Review of interlocutory reference or inquisition. If a reference or writ of inquiry has been executed, either party may apply for an order directing a new hearing or a new writ of inquiry, on proof by affidavit that error was committed to his prejudice on the hearing, or in the report, or on the execution of the writ, or in the inquisition. In a proper ca.se, the application may be granted after judgment has been entered. In that case, the judgment may be set aside, either then or after the new hearing or the execution of the new writ, as justice requires. EDITOBIAI. NOTES — Source: CCP § 1232. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Motion for a. new hearing, after trial of specific ques- tions by a referee, CPA § 556. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. PROCEEDINGS TO WBICS RUIiE AP- PUCABI^E — Administrator: reference ordered by surro- gate on accounting of (Bayer 54 Hun 189, 7 NTS 566). Rule 223. When notes of stenographer treated as minutes of judge. On a motion for a new trial, notes of the stenographer, taken at the trial, when written out at length, may, in the discretion of the judge, be treated as his minutes on the trial. proper (Schlotterer 102 AD 363. 92 NTS 674). USE OF STENOGRAPHER'S NOTES DIS- CRE TIONABY — Motor vehicles: damages for personal In- jury by (Howard 174 NTS 330). BUI^E APPI^ICABKE — Beferee: notes of testimony before, in fore- closure, on their filing after sale and satis- faction of judgment ('Horrocks 27 Hun 144). RUIiE CITED — But not applied: (Voisin 123 NT 120; Var- num 9 CivP 421). Assessment of Aaxaagea: in trial court be- fore jury after judgment absolute in court of appeals on affirmance of order granting new trial ('Taw 66 AD 317, 72 NYS 765). Motion to set aside: judgment confirming referee's report and sale in action for par- tition on ground that there was an out- standing life estate (*Prior 15 CivP 436). Railroad mortg'age: reference in foreclosure of (Cent Trust Co 42 Hun 602). RUI^E CITED— But not applied: (Lawton 156 NTS 1130). EDITORIAi; NOTES — Source: CCP § 1007, as amended by L 1883, c 218, L, 1884, c 277, L. 1909, c 35, c 65. Text in italics is new matter. Inserted June 17, 1921. Civil Practice Act references: Motion for new trial upon judge's minutes, CPA § 549. Star (•), means read Not into HEADIIINE in capitals. For illustration see Rule 1. STENOGRAPHER'S NOTES TREATED AS JUDGE'S MINUTES— Becltal of order: on motion that it was made on "filing the stenographer's minutes" im- Rule 224. When order on motion for new trial to specify grounds. When an order grants or refuses a new trial, except on the exceptions taken during the trial, it must specify the grounds on which the motion was made and the grounds on which it was decided. EDITORIAL NOTES— Source: General Rule of Practice 31, first sentence. Formerly Equity Rule 59; Rule 74 of 1849; Rule 69 of 1852; Rule 33 of 1858; Rule 40 of 1871, 1874; Rule 31 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 31, first sentence, read: "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 grounds upon which it was granted." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not Into HEADIiINE in capitals. For illustration see Rule 1. ORDER GRANTING NEW TRIAl^ PRE- SUMED TO BE ON EXCEPTIONS DUB. ING TRIAIV— No grounds stated: (Clarke 143 AD 269, 128 NTS 881; Smith 55 AD 90, 66 NTS 1046; Read 101 Mis 547, 167 NTS 568; Badanes 47 Mis 91, 93 NYS 479). STATEMENT OF GROUNDS OF MOTION AND DECISIONS REQUIRED — Newly discovered evidence: of falsity of testimony, order stating no grounds (Salo- mon 128 AD 441, 112 NYS 779). Resettlement: of order granting new trial to state grounds will be granted (Clarke 143 AD 269, 128 NTS 88; Israel 52 Mis 523, 102 NTS 873). rr. 229, 230 OLEVENGEB'8 RULES OF CIVIL PRACTICE 176 TITLE 27 APPEALS Eule 229. Bill of exceptions. 230. Case and bill of exceptions; service; amendment and settlement. 231. Failure to make case. 232. Bill of exceptions; case; resettlement; exhibits. 233. Kxtension of time for serving case on appeal or amendments. 234. Papers constituting record on a.ppeal. 2,35. Records and briefs on appeal; printing, indexing and delivery. 236. Briefs and points to be exchanged by parties. 237. Calendar practice; notes of issue; default judgments. 238. Opinions; copies and publication. 23'9. Orders of appellate division on reversal. EDITORIAI. NOTES — Civil Practice Act references: Appeals, gen- eral provisions, CPA §§ 557-587; Case, when necessary, CPA § 575; Case, contents of, CPA § 576; Papers to be transmitted to appellate court, CPA § 577; Review of ruling to which exception has been taken, CPA § 683; Judgment or order on appeal, CPA § 584; Restitution, CPA § 587; Appeals to court of appeals, CPA §| 588-607; Ap- peals to appellate division of supreme court, CPA §§ 608-621; Record on appeal, CPA § 616; Order of reversal to specify grounds, CPA § 620; Appeals to supreme court to inferior courts, CPA §§ 622-630; Appeals from a determination In a special proceeding, CPA §§ 631-634. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. Bule 229. Bill of exceptions. If the appellant intend to review on appeal only cer- tain exceptions taken on the trial, he shall serve on the adverse party a notice specify- ing such exceptions, and shall prepare and serve a bill of exceptions as hereinafter provided. EDITOBIAI. NOTES— Source: new. Text in. italics is new matter, inserted June 17, 1921. Bule 230. Case and 1)111 of exceptions; service; amendment and settlement. When- ever it shall be necessary to make a case or a bill of exceptions, the same shall be made and a copy thereof served on the opposite party vvithin 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 judgment 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 was before a jury, and a motion is made for a new trial and not decided at the time of the trial, within thirty days after notice of the entry of the order on such motion, or within thirty days after service of a copy of the judgment and notice of its entry. The party served with a case or a bill of exceptions may propose and serve amend- ments thereto within ten days thereafter. Within four days thereafter either party may serve the opposite party with a notice that the case or bill of 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. The party proposing amendments to a case or bill of exceptions, before submitting the same to the judge or referee for settlement, shall mark on the several amendments his allowance or disallowance thereof, and also shall mark plainly thereon and on 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 claim that the case or bill of exceptions should be made to conform to the minutes of the stenographer, at the end of each amendment he must refer to the proper page of such minutes. The judge or referee shall thereupon correct and settle the ease or bill of exceptions. Notice of settlement of the proposed case or bill of exceptions shall be not less than four nor more than ten days after the service of such notice. The lines of the proposed case or bill of exception's shall be so numbered that each copy shall correspond. The court, judge or referee, by order, may allow further time for the doing of any of the acts above provided to be done on such appeals. 177 APPEALS r. 230 Cases where exceptions are ordered to be heard in the first instance by the appellate division or where specific questions of fact have been submitted to a jury shall be settled in the same manner. With the approval of the judge, the parties may agree on the facts proven to be inserted in the case or bill of exceptions, instead of the testimony. EDITOBIAib NOTES— Source: General Rule of Practice 32, except last paragraph; covers General Rtile of Practice 31, last paragraph, first sentence, last .part. General Rule 3.2 was formerly Rule 27 of 1849; Rule 24 of 18i52; Rule 36 of 1858; Rule 41 of 1871, 1874; Rule 32 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 31 was formerly Equity Rule 59; Rule 74 of 1849; Rule 69 of 1852; Rule 33 of 1858; Rule 40 of 1871, 1874; Rule 31 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 32 read: "♦ • • If the trial were before a jury, within thirty days after notice of the decision of a mo- tion 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. » » • Whenever amendments are proposed to a case of exceptions, the party proposing such case or exceptions shall, before submitting the same to the judge or referee for settlement, mark upon the several 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 sur- rogate, 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 argu- ment 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 ap- proval of the judge." Tojct la italics is new matter, inserted June 17, 1921. Ci^ Practice Act references: Case, when necessary, CPA 575; Case, contents of, CPA § 576. Star (*) means read Not into HEADI^INE in capitals. For illustration see Rule 1. RULE APFI.ICABI.E— Conflict with code provisions: with reference to time of service ('French 80 NY 146). Municipal court: ('Blum c& Co 103 Mis 508, 170 NTS 375; Standard Scale Supply Co 165 NYS 81). CASE NECESSARY— Expression of opiniou Toy trial jad^re: in presence of jury, to review (WooUey 17 WkD 382). Judgment: entered upon verdict of jury in action for recovery of personal property or for its value (McLean 13 Hun 300), directed by court (Delano 37 Hun 275). New trial: (Kenny 12 Mis 86, 33 NTS 95; Hinman 20 WkD 401; Seeley 4 How 264); before trial judge ('Thayer Mfg Co 58 How 315); complaint dismissed, without trial by jury (Healey 11 Daly 281); newly dis- covered evidence (Hanor 128 AD 801, 113 NYS 163); verdict and judgment are con- trary to law (Hayer Mfg Co 58 How 315); where parties consent to hearing upon pleadings and aflidavits without a case (•Russell 123 NT 436). Referees: conclusions of law ('Davie 1 T&C 530); findings of fact (Brown 10 WkD 357); findings of law ('Dainese 36 Supr 98); judgment entered on report of (Foote 14 CivP 332). Surrogates decree: refusing executors com- missions ('Jackson 32 Hun 200). SERVICE OF PROPOSED CASE TIMEI^V— Trial 1)7 court: ('Mcllvaine 85 AD 562, 83 NTS 285); copy of decision of court con- sisting of findings of fact and conclusions of law not served (Schwarz 103 NT 658). Trial by jury; after expiration of 30 days from expiration of order on motion for new trial, but within 30 days from notice of entry of judgment ('Kenny 12 Mis 86, 33 NYS 95); within 15 days after entry of order on motion, tho after expiration of 30 days from service of copy of Judgment and notice of entry, on appeal from order on motion for new trial (Gelder 148 AD 637, 133 NTS 214). SERVICE OF CASE PROPER — Iietter: asking appellee to accept service (•Farley '57 AD 218, 68 NTS 119). NOTICE OF ENTRY OF JUDGMENT SUF- FICIENT — Service of alleged copy of judgment: which did not contain signature of clerk or have any amount whatever of costs inserted in it ('Mason 29 AD 602, 51 NYS 178). SUBMISSION FOR SETTI.EMENT TIMEIiY Proposed amendments: immediately upon expiration of time for submitting (Dyer 100 Mis 115, 165 NYS 221). NOTICE OF SETTIVEMENT PROPER — Referee: disqualified ('McCormick 158 AD 54, 142 NYS 759). WHO lOAY SETTIiE — Parties: by stipulation (Loper 32 Mis 534, 67 NYS 329; Watson 29 Mis 447. 60 NYS 755; Bonneford 73 Hun 377, 26 NYS 193; Woodhull 69 Hun 210, 23 NYS 553; Gelinka 3 WkD 426). Referee: disqualified by taking of assign- ment of part of judgment for fee ('McCor- mick 158 AD 54, 142 NYS 759). Trial judge: (Loper 32 Mis 534, 67 NYS 329; Watson 29 Mis 447, 60 NYS 755; Bonneford 73 Hun 377, 26 NYS 193; Woodhull 69 Hun 210, 23 NYS 553; Gelinka 3 WkD 426). SETTIiEMENT PROPER — Case prepared from memory; stenographer's notes not available because of decease since trial (Lidgerwood Mfg Co 56 Supr 350). Denial of motion to produce lis pendens: filed in office of county clerk and to direct such lis pendens to be marked as an ex- hibit, where from what happened at trial court it was apparent that the lis pendens was really in evidence and before the court (•Miller 122 AD 793, 107 NYS 854). Stenographer's minutes: without considera- tion of ('Kammermann 25 Mis 405, 55 NYS 438). Striking out certificate: that case contains all the evidence taken upon trial, where case proposed contains all material evi- dence and no amendments are proposed by respondent (•Renwick 36 StR 682, 13 NYS 600). SETTIiEMENT SUFFICIENT — Signature of trial judge: lacking ('Brush 11 AD 626, 42 NYS 761). SETTIiEMENT BY TRIAi; JUDQE CON- CI^USIVE— Denial of substantial right: not apparent (James 61 StR 323, 22 NYS 123). Disputed facts: (Balz 11 Mis 444, 32 NTS 220; Dearlng 6 Mis 616, 26 NTS 74; Green 7 NYS 69; Klein 53 Supr 531). Evidence: insertion of ruling of court ex- cluding evidence offered and defendant's rr. 230, 231 CLEVENOER'S RULES OF CIVIL PRACTICE. 178 exception thereto, where it appears without dispute that such evidence was offered, ex- cluded, and exception taken (•Gleason 34 Hun 547). Instructions: striking out a request to charge, a refusal and exception where it appears without dispute that request was made, refused and excepted to ('NY Rub- ber Co 112 NY 592,' 2t) NB 646). SETTI^EUEN'T REFUSED — Poim: directions of rule with reference to, Ignored (Donal 20 Mis 221, 45 NYS 364). AfFi^iCATioiT roR resetti;emeii't PROPER — Appellate court: original application to (♦Ross 35 AD 379, 54 NYS 827). ASCBirDHEirT OP CASE PROPER — By appellate divlsdlou: inclusion of evidence, upon appeal from judgment entered on de- cision of court ('Delaney 11 AD 316, 42 NYS 571): insertion of respondent's ex- ceptions (Bonnette 153 AD 73, 138 NYS 67). By court of appeals: findings on original case (•Binghamton O H Co 156 NY 651). By trial court: after argument and decision in appellate court, by inserting charge, and issues not passed upon by jury (O'Gorman 5 Daly 517); after case has been filed pur- suant to a stipulation of the attorneys, upon given proper notice to parties, where he ascertains that it did not state ac- curately the occurrences upon the trial (McManus 40 AD 86, 57 NYS 559); after final determination of disposition by court of appeals (*Drake 38 AD 71, 55 NYS 920); insertion of statement that case contains all the evidence, where respondent concedes that case does in fact contain it all (Martin Bing & Co 23 AD 234, 48 NYS 989). COSTS AUTHORIZED — Stenographer's minutes: procured for prep- aration of a case on appeal, or amendments thereto (Hertzberg 80 Mis 290, 142 NYS 211); obtained from day to day during trial where aflidavit stated merely that they were "necessarily obtained and actually used" in preparing amendments to plain- tiff's proposed case on appeal ('L I Cont & Supply Co 142 AD 1, 126 NYS 429); to respondent, secured to enable him to pro- pose amendments to proposed case, where he is denied use of appellant's copy (Park 57 AD 569 68 NYS 460), tho he had not requested loan of minutes from appellant and been refused (Starkweather 113 AD 401, 98 NYS 1086). RUIiE CITED — But not applied: (Balch 92 Mis 47, 155 NYS «08; Rose 153 AD 263, 137 NYS 1079; Sur- pless 67 Mis 586, 12* NYS 809). Rule 231. Failure to make case. If the party shall omit to make a case -within the time limited in the preceding rule, he shall be deemed to have waived his right thereto; and when a ease is made and the parties shall omit within the several times so limited, the one party to propose amendments, and the other to give notice of the settlement thereof before the judge or referee, they shall be deemed, respectively, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed. EDITORIAI^ NOTES — Source: General Rule of Practice 33. For- merly Law Rule 34; Rule 34 of 1847; Rule 16 of 1849, 1852; Rule 35 of 1868; Rule 42 of 1871, 1874; Rule 33 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Case, when necessary, CPA § 575; Case, contents of, CPA § 576. Star (•) means read ITot into HEADIiINE in capitals. For illustration see Rule 1. RIGHT TO MAKE CASE -WAIVED — Decision filed -but not served: tho order dis- missing complaint and judgment served (•Schwartz 103 NY 658). Entry of order: that right to make case is abandoned or waived is declaratory of fact and affects no substantial right (Fromme 95 NYS 525). PaiJure to enter judgmenrt: is no excuse where appeal is from order denying new trial (Kenney 12 Mis 86, 33 NYS 96). Stay of judgment: does not prevent respond- ent from moving on default on appeal from order denying new trial (Kenney 12 Mis 86, 33 NYS 95). Time runs: from motion and not Judgment on appeal from orders denying new trial (Kenney 12 Mis 86, 33 NYS 95). COURTS TO -WHICH RUI.E IS AFPI.IC- ABIiE — City court: (Blum & Co 103 Mis 508, 170 NYS 375; Musica 74 Mis 387, 132 NYS 280). Municipal court: of New York City ('Blum & Co 103 Mis 608, 170 NYS 375). EFFECT OF FAIIiURE TO MAKE CASE — AfBrmance liy defa/ult: not barred when case reached on calendar (Oeters 15 AbP 263, SC 9 Bos 638). Codefendant: not affected by case served only on other defendant (Mcllvaine 90 AD 77, 85 NYS 889). Confines appeal to record: (Rankin 4 AbP 309; Connolly 16 How 224; Brown 5 Rob 678; Berger 7 Rob 1). Dismissal of appeal: not warranted (Musica 74 Mis 387, 132 NYS 280; Rankin 4 AbP 309; Connolly 16 How 224; Brown 5 Rob 678; Berger 7 Rob 1; Phelps 2 Sweeny 696). Resettlement of order: fixing terms for ex- tension of time will be refused appellant failing to have default opened (Lightner 102 Mis 655, 169 NYS 471). Stricken from, calendar: (Williams 8J Hun 303, 34 NYS 1161). Terms of order estending- time: no injury to appellant failing to have default opened (Lightner 102 Mis 665, 169 NYS 471). PROCEDURE PROPER ON -WAIVER— Motion ■belo-tr: for order declaring right to make case waived and then motion above for dismissal of appeal (Dyer 100 Mis 115, 165 NYS 221; Musica 74 Mis 387, 132 NYS 280; Carraher 1 J&S 502, SC 11 AbNS 338, 42 How 458). Motion to dismiss: for failure to prosecute will be dienied if no order of lower court declaring right td make case waived (Phelps 2 Sweeny 69fi). JURISDICTION OP TRIAI^ COURT— Dismiss appeal: ('Musica 74 Mis 387, 132 NYS 280). Extensions of time: CW^ard 2 Sweeny 701; (Phelps 2 Sweeny 696). Making of case: (Musica 74 Mis 387, 132 NYS 280; "Ward 2 Sweeny 701; Phelps 2 Sweeny 696). Relief from default: (Odell 16 AD 103, 45 NYS 119; Phelps 2 Sweeny 696). JURISDICTION OF APFE]^:bATE COURT- Dismiss appeal: (Musica 74 Mis 387, 132 NYS 280; Phelps 2 Sweeny 696). DEFAUI.T IN SERVING CASE RELIEVED By consent: appeal may be heard on plead" ings and aflSldavits (Rose 163 AD 263, 137 NYS 1079). Neglect of attorney; rendered incompetent by habits, ground for relief (Elston 7 Rob 74). Open default: sole remedy of appellant in default is motion to (Lightner 102 Mis 655. 169 NYS 471). 179 APPEALS XT. 231, 232 Service of case after default: may be per- mitted (Odell 16 AD 103, 45 NYS 119; Phelps 2 Sweeny 696). Xlme to serve case: may be extended (Odell 16 AD 103, 45 NYS 119). efpect of paiiivbe to fboposb amenbheeitts— Dismissal of appeal: not allowable on ground that alleged defective case served was failure to serve case (Balch 92 Mis 47, 155 NYS 308). Settlement of case automatically: does not follow without action of trial justice (Dyer 100 Mis 115, 165 NYS 221). EFFECT OF FAU^TTBE TO NOTICE FOS SETTIiEUENT — Settlement of case automatically: does not follow where referee disqualified by taking assignment of party of judgment for his fees (McCormick 158 AD 54, 142 NYS 759). DEFATJIiT IN SETTKEIVIENT REIiIEVED — Open default: appellant given time to apply to special term to, and settle (Vanden- bergh 52 AD 617, 65 NYS 365). Rule 232. Bill of exceptions; case; resettlement; exhibits. A bill of exceptions shall contain only so much of the evidence as is necessary to present the questions of law which are to be raised on the appeal. A ease shall contain all the evidence by question and answer, the rulings of the court and the exceptions of all parties to the record, but shall not contain the opening and summing up or the remarks of counsel unless ordered by the judge or referee. Exhibits on a trial or voluminous documents used on a motion need not be printed at length unless the judge or referee so direct, in which case, except there be a stipula- tion by the parties, the clerk shall certify that the printed papers are true copies of the originals and of the whole thereof except those omitted by order of the court. If any case or biU 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. EDITOBIAI. NOTES— Source: General Rule of Practice 34, except second paragraph, last two sentences; third paragraph is General Rule of Practice 41, last paragraph. General Rule 34 was for- merly Law Rule 47; Rule 27 of 1849; Rule 24 of 1852; Rule 36 of 1858; Rule 43 of 1871, 1874; Rule 34 of 1877, 1880, 1884, 1888, 1896. 1900, 1910, 1913. General Rule 41 was for- merly Rule 32 of 1849; Rule 29 of 1852; Rule 43 of 1858; Rule 50 of 1871, 1874; Rule 41 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 41, last paragraph, read: "If the judge from whose order the appeal is taken orders that it shall not be neces- sary to Insert in the printed papers upon which the appeal is to be taken such ex- hibits or other voluminous documents as are not necessary for a consideration of the Questions raised by the appeal, the clerk shall then certify that the printed papers of the true copies of the originals and of the whole thereof specified in the order ex- cept those omitted by order of the court." Text in italics is new matter. Inserted June 17, 1921. Civil Practice Act references: Case, when necessary, CPA § 575; Case, contents of, CPA § 576. Star (•) means read Not into HEASIiINE in capitals. For illustration see Rule 1. ONI^V EVIDENCE NECESSARY TO PRE- SENT QUESTIONS OF IiAW: BE- QTTIBED— Kotion to dismiss denied: (Hubbard 28 AD 577, 51 NYS 207). Officers: misdemeanor by (Tweed 1 Hun 252). Partition: (Weseman 85 NY" 353). SIImI, of EXCEPTIONS SUFFICIENT — Bills and notes: recovery on promissory note (See Gernon 90 NY 631). Evidence: in terms may be set ou-t, or a statement of its effect may be made (Hub- bard 28 AD 577. 51 NYS 207). Practice: of taking stenographer's minutes bodily for a bill of exception is not to be commended (Jewell 58 NY 85). ALI^ EVIDENCE BV QUESTION AND AN- SWER REQUIRED— Commerce: recovery under federal employ- er's liability act (Norton 163 AD 466, 148 NYS 769). , ^ . Evidence: material portions only need be In- cluded (Balch 92 Mis 47, 155 NYS 308). Narrative form: prior rule ('Watson 29 Mis 447 60 NYS 755; 'Winter 8 Mis 362, 28 NY^ 695). To consider exceptions: as to matters of fact (Frost 7 Bosw 108). RUI^INGS OF COURT AND EXCEPTIONS OF RECORD PARTIES: REQUIRED — Appellant's duty: to show plainly that an er- roneous ruling was made adversely to him (Clark 49 How 63). Infants: request for exclusion of child from court in personal injury case and ruling thereon (Davidson 122 AD 11, 106 NYS 1044). Matter indicating attitude of court: in mak- ing rulings upon offered testimony (David- son 122 AD 11, 106 NYS 1044). Nonsuit: to review referee's order of (Prit- chard 39 Hun 378). Remarks: of court ('Davidson 122 AD 11, 106 NYS 1044). OPENING AND SVTHtnaNG UP OR RE- UARXS OF COUNSEI.: REQUIRED — Speecli and remarks: of counsel for defend- ant ('Davidson 122 AD 11, 106 NYS 1044). CASE REQUIRED — Arbitration: to review facts on which arbi- trators decided (Gitt 138 AD 147, 123 NYS 304). Executors and administrators: appointment of (Brockway 16 Barb 590). Jndginent roll: appeal may be argued on CO'Dell 16 AD 103, 45 NYS 119). New trial: appeal from order granting (Har- per 3 AbNS 186). Only effect of omitting' a case: is to leave party to argue appeal on judgment alone (•Berger 7 Rob 1). Special proceeding's: -to fix amount of at- torney's lien for compensation ('Sullivan 124 AD 126, 108 NYS 909). CASE SUFFICIENT- Appellate division: determine sufficiency of case on appeal, not special term (Waldo 6i Mis 71, 115 NYS 1023). Correction of error: must be made on appli- cation to special term before argument (Hickley 2 Hun 523, aft 60 NY 88); where it appears .that point was axgued at general term, motion to amend denied (PvBoard of Apportionment 1 Hun 123). Documentary evidence omitted: ('Matchett 2 AD 340, 37 NYS 854). E'vidence: not material to question to be raised should not be inserted ('Watson 20 Mis 447, 60 NYS 755). Judgment roll: and exceptions to conclusions of law where issue is correctness of judg- ment (Douglass 11 Hun 406). letters: admitted in evidence omitted (•Sloane 45 StR 265, 18 NYS 442). r, 232 OLEVEN&ER'S RULES OF CIVIL PRACTICE 180 life iusiuauoe: (See Boos 64 NT 236). Partition: (See 'Piatt 105 NY 488). Paltent: transfer of certain letters (See Hebbard 70 NY 61). Stenoeriaplier'B mlnnteB; ('Wanzor 26 StR 753, 5 NYS 957; 'Sandford 9 AD «5, 41 NYS 103). CERTIFICATE OT ALJ, EVIDEITCE BE- QUIBED — PreBiuuptloa: that all evidence In support of pleadings excepted to is inserted ('Per- kins .56 NY 87; See 'Hewett 41 AD 6, 58 NYS 83). BiUe req^idriiigr statement is technical: (Barnard 69 Hun 104, 23 NYS 260). To cousiaer exceptions: CAldridge 120 NY 614, 24 NB 1022; 'Baisler 133 AD 721, 118 NYS 223; 'Wynne 27 AD 7, 60 NYS 187; •Sandeford 9 AD 55, 41 NYS 103; 'McNish 91 Hun 324, 36 NYS 1022; 'Button 88 Hun 35, 34 NYS 522; 'Dexter 86 Hun 433, 33 NYS 901; Murphy 68 Hun 450, 23 NYS 70; ♦Gregory 31 Mis 173, 63 NYS 975; 'Gage 12 Mis 93, 33 NYS 59; 'Kenney 12 Mis 86, 33 NYS 95; 'Jagan 11 Mis 330, 32 NYS 144; •Rosenstein 9 Mis 449, 30 NYS 258; 'Mc- Avoy 8 Mis 595, 29 NYS 321); admission or exclusion of evidence ('Fleck 9 AD 43, 41 NYS 64); direction of verdict (Brown 2 AD 105, 37 NYS 529); finding of fact un- supported by any evidence (Spence 39 Hun 193), motion for new trial on the minutes (McAvoy 8 Mis 595, 29 NYS 321), motion for nonsuit or dismissal of complaint CDupont 204 NY 361, 97 NE 735), rulings of trial judge or to his charge, altho based upon absence or i-nsufllciency of evidence (•Rosenstein 150 NY 354); verdict unsup- ported by any evidence ('Robbins 45 StR 279, 18 NYS 100; 'Lydecker 6 AD 90, 39 NYS 509). To grant new trial: (Hunt 22 AD 631, 48 NYS 24). To reduce amount of recovery: (Hunt 22 AD 631, 48 NYS 24). To review facts: (Dupont 294 NY 351, 97 NE 735; Dibble 143 NY 724; Aldridge 120 NY 614, 24 NB 1022; 'Porter 107 NY 531, 14 NB 446; Tomlinson 44 NY 601; Norton 163 AD 466, 178 NYS 769; Raisler 133 AD 721, 118 NYS 223; Opperman Brewing Co 67 AD 98, 73 NYS 541; Wynne 27 AD 7, 50 NYS 187; Kissam 21 AD 142, 47 NTS 270; Caven 15 AD 163, 44 NYS 244; Sande- ford 9 AD 56, 41 NYS 103; Watts 9 AD 143, 41 NYS 141; Fleck 9 AD 43, 41 NYS 64; Gorham Mfg Co 3 AD 515, 38 NYS 307; McNish 91 Hun 324, 36 NYS 1022; Button 88 Hun 36, 34 NYS 522; Dexter 86 Hun 433, 33 NYS 901; West 86 Hun 436, 33 NYS 898; Whiting 83 Hun 4, 31 NYS 1136; Blaustein 83 Hun 5, 31 NYS 559; Brown 83 Hun 103, 31 NYS 361; Root 77 Hun 14, 28 NYS 273; Randall 76 Hun 427, 27 NYS 1062; Bvans 75 Hun 199, 27 NYS 46; Murphy 68 Hun 460, 23 NYS 70; Spence 39 Hun 193; Em- pire Trust Oo 46 Mis 583, 90 NYS 1066; Gregory 31 Mis 173, 63 NYS 975; Gregor 18 Mis 613, 43 NYS 486; Hedges 14 Mis 309, 35 NYS 709; Gage 12 Mis 93, 33 NYS 69; Jagan 11 Mis 380, 32 NYS 144; Murray 10 Mis 365, 31 NYS 17; Rosenstein 9 Mis 449, 30 NYS 268; Davey 1 Mis 317, 30 NYS 675; Homeyer 49 StR 414, 20 NYS 814; Uping- ton 47 StR 30, 19 NYS 428; Hyraan 45 StR 636, 18 NYS 446; Fults 38 StR 125, 14 NYS 4; Claflin 36 StR 728, 13 NYS 269; Porter 7 CivP 195, aff 107 NY 531, 14 NB 446). CEBTI7ICATE OF AI^I. EVIDENCE SUFFI- CIENT— AH material evidence: upon the matter in- volved (Chapin 84 Hun 490, 32 NYS 361). All oral evidence: ('Matchett 2 AD 340, 37 NTS 854). All the evidence: relating to the matters contained in said case and bill of exceptions (Oaksmith 19 AD 334, 46 NYS 262). All the testimony and proceeding's: taken and heard upon the trial ('Becker 19 AD 555 43 NYS 685; 'DeMott 47 StR 731, 20 NTS 195). All the testimony triven: all of the exhibits of the parties and all the proceeaings had upon the trial (Orcutt 42 AD 238, 59 NTS 1008). All the testimony taken on trial: of this ac- tion ('Randall 76 Hun 427, 27 NTS 1062; Koehler 73 Hun 167, 25 NTS 1061; 'Upping- ton 47 StR 30, 19 NTS 428); no amendment offered or matlon to correct case made (Dibble 143 NY 549, 38 NE 724). Attorney's affidavit: that all evidence In- cluded ('Gorham Mfg Co 3 AD 515, 38 NYS 307). Certificate: inserted in the preliminary state- ment to be prefixed to case showing time of beginning of action ('Oprierman Brewing Co 67 AD 98, 73 NYS 541). FBINTING OF EXHIBITS BEQUXBED — Bills and notes: promissory note, genuine- ness of signature in issue (Root 77 Hun 14. 28 NYS 273). Statement of parties: adequate substitute ('Hon 127 AD 727, 111 NTS 876). PBINTING OF EXHIBITS: ETC WHOM OB- SEBEO — Trial judere: (Maxwell 173 AD 906, 157 NYS 1136; Kings <30 Trust Co 166 AD 940, 151 NYS 1124). BESETT^EIIENT OBDEBED — All evidence not included: (Renwlck 36 StR 682, 13 NYS 600). Alteration: unauthorized after filing (Mc- Creedy 24 Mis 606, 54 NYS 46). Arinunent of cotmsel: and remarks of court inserted and appropriate matter omitted (Davidson 122 AD 11, 106 NYS 1044). Certificate: of all evidence insufijcient (Op- perman Brewing Co 67 AD 98, 73 NYS 561). Conclusion of court: as to what transpired without facts of matter discussed (Cooley 36 AD 620, 65 NYS 832). Depositions and stenographic notes: unnec- essarily included (Markwald 8 Hun 547). Exceptions: to insert, at stage of charge at which they were made (Zimmer 28 AD 5U1, 51 NYS 247). Beferee: in case tried before, claims will not be directed to be restored where it is denied by affidavit that concessions in regard to claims were made ('Cheever 17 CivP 51, 7 NYS 918). Stenograpiier: omission by, of exception (See Toner 1 AbNC 302). Striking ont of exceptions: as argumentative by trial court vBrauer 129 AD 384, 113 NYS 705). To insert statement: isho wing time of begin- ning of action (Weeks 155 AD 937, 140 NYS 1160); of counsel, not in nature of ad- mission, but an assertion of his view of the law applicable to facts of case ('Levy 91 AD 483, 86 NYS 862). Trial judge: not required to act in any way contrary to his own recollection of what oc- curred at trial (Zimmer 28 AD 504, 51 NYS 247; 'Grossman 22 StR 522, 5 NYS 122), to resettle merely because matters sworn to have occurred before him do not a5>p«ar in the stenographer's notes, beyond his power of (Foster 21 Mis 8, 46 NYS 839). TTnnecessarlly voluminous: (Ryan 4 Hun 804). BESETTIiEUENT: AFFIiICATION WHEBE MADE — General Term: case settled by referee (Cheever 17 CivP 51, 7 NYS 918). IN AFPEI^I^ATE DIVISION FAPEBS SHAIiL BE FUBNISHED: BY WKOUi— AppeUont: (Perkins 114 AD 322, 99 NTS 849). Bespondent: upon appellant's failure to do so (Davidge 30 StR 792, 9 NYS 310). FBINTED COPY OF BEQUXBED PAPEBS FILED: TIMEIiY — After twenty days: after settlement ('Ward 167 AD 948, 164 NYS 1149; 'Walker 156 AD 718, 141 NYS 1102; 'Hanson 117 AD 39, 101 NYS 1061; 'Vandenburgh 52 AD 617, 65 NYS 365). 181 APPEALS I. 232 Over fifteen days; after taking appeal In case of nonenumerated motion (•Ravold 173 AD 907, 157 NTS 1143). Shortening' of appellant's time: is beyond power 01 special term (Ford 40 Hun 557). SERVICE OF FBUTTED PAPERS ON AD- TERSE PARTIES TIIKEI^Y— After twenty days: after settlement ('Ward 167 AD 948, 154 NYS 1149; 'Walker 156 AD 718, 141 NYS 1102; 'Hanson 117 AD 39, 101 NYS 1061; 'Vandenburgh 52 AD 617, 65 NYS 365). Shortenlncr of appellant's time: is beyond power of special term (Ford 40 Hun 557). RECORD ON AFPEAIi: WHAT INd^lTDED — Afldavit: in mandamus proceeding (See PxMulIigan 8 AD 618, 40 NYS 934); plus stipulation authorizing substitution of par- ties (See Wilson 57 AD 484, 68 NYS 116). Amendment by trial court: duly certined, made after record filed on appeal (Peter- son 119 NY 662). Appeal book: should be so printed as to ren- der pleadings intelligible where answer drawn referring to original folios of com- plaint (Crosley 22 WkD 570). Bill of exceptions: (Szuchy 150 NY 219). Case: (See Heloa Power Co 157 NY 437). Colloquy: between court and counsel where necessary to secure review of what actually took place (Moroney 56 Mis 454, 107 NYS 214). Dismissal of appeal: order, not appealed from, denying motion for (Ostrander 20 StR 806, 3 NYS 597). Findings: signed by judge (Camble 20 StR 917, 4 NYS 955). Index: (Reld 50 StR 758, 21 NYS 719). Judgment roU: (Reid 50 StR 758, 21 NYS 719; Berger 7 Rob 1), and exceptions (Douglass 11 Hun 406), including pleadings (Perkins 114 AD 322. 99 NYS 849). New trial: order denying motion for (Dexter 86 Hun 433, 33 NYS 901; Jagan 11 Mis 330, 32 NYS 144). Notice of appeal: judgment roll and case and exceptions (Brady 105 AD 476, 94 NYS 259). Notice of trial: (Sweeny 96 AD 399, 89 NYS 314). Opinion of: referee (Warren 22 How 142), trial court ('Randall 149 NY 211; Pish 158 AD 92, 143 NYS 365; Bryant 54 AD 500, 67 NYS 89; Israel 52 Mis 525, 102 NYS 871; Swezey 64 How 331; Standard Scale Supply. Co 165 NYS 81), if expressly made part of record (Manning 19 Mis 481, 43 NYS 1070). Parties: order joining other defendants (See Davidson 164 AD 352, 149 NYS 640). Remittitur: of court of appeals in action before general term (Bldredge 39 Supr 295). Stenographer's minutes: extracts from (Ray- mond 135 AD 353, 120 NYS 380). Two independent and disconnected proceed- ings: in one appeal book ('Geneva & WR Co 24 AD 335, 48 NYS 842). RECORD ON AFPEAII SUFFICIENT — In absence of printed pleading's: only such papers as printed will be considered (Wheeler 7 Robt 45). Judgment roll: not following notice of ap- peal ('Brady 105 AD 476, 94 NYS 259). Judgment roll and index: absence of ('Reid 50 StR 758, 21 NYS 719). No decision in ■writing,: of issues of law raised by demurrer ('MoNulty 1 Mis 422, 21 NYS 247). No findings: signed by judge ('Gamble 20 StR 917). CERTIFICATE OF CIiERK REQUIRED — Cancellation of certificate: can be moved for only in appellate court (Tedford 129 AD 35, 113 NYS 358). Nature of case: not disclosed (Bonneford 73 Hun 377, 26 NYS 193). Observance of: this duty is regarded as ex- tremely important (Lewisohn 40 Hun 545). Omission: case sent back for proper certifi- cate (Stanton 8 Mis 366, 29 NYS 390). STATEMENT OP TIMES OP COMMENCINO ACTION REQUIRED — Fraud: as to solvency and existence of cer- tain contracts (James 51 StR 323, 22 NYS 123). STATEMENT OF TIME OP COMMENCING- ACTION SUFFICIENT — On or about: (James 51 StR 323, 22 NYS 123). STATEMENT OF ANV CHANGE IN PAR- TIES REQUIRED — Joinder: of other parties defendant (David- son 164 AD 352, 149 NYS 640). RECORD ON AFPEAII FROM ORDER: WKAT INCIiUDED — Affidavits: of referee (Kissam 21 AD 142, 47 NYS 270); to explain conduct of exec- utors (Richardson 120 AD 406, 105 NYS 615). Case and exceptions: CGowdey 101 AD 275, 91 NYS 6.62). Condemnation proceedings: papers not con- sidered below ('Manhattan R Co 7 Mis 347, 27- NYS 860). Costs: all papers used on motion to retax (Smith 33 How 308). Judgment roll: (Whipple 29 AD 70, 51 NYS 635); parts of (Conlon 126 AD 624. 110 NYS 1070). Motion papers and pleadings: (Hunter 46 Mis 421, 92 NYS 311). Notice of appeal: order appealed from and other papers (Gowdey 101 AD 275, 91 NTS 662). Stenographer's minutes: printed copy of (Manhattan R Co 7 Mis 347, 27 NYS 860). SPECIFICATION OF PAPERS IN ORDER REQUIRED — Executors and administrators: settlement of account (Goudey 101 AD 275, 91 NYS 662). AFPEAII DISMISSED — Absence of papers from record: used at trial but not filed by moving party ('Ross- kam 15 AD 190, 44 NYS 198). Before order by respondent: providing for filing of case ('Davidge 30 StR 792, 9 NTS 310). Conditionally: (Pensabene 170 AD 948, 155 NYS 1130; Walker 156 AD 718, 141 NYS 1102; Griflith 140 AD 884, 124 NY'S 1116). Failure to: file and serve printed papers (O'Brien 191 AD 936, 182 NYS 940; Char- monte 180 AD 899, 166 NYS 1089; Ward 167 AD 948, 154 NYS 1149; Phila Ware- house Co 158 AD 917, 143 NYS 1139; Smith 129 AD 931, 113 NYS 1147; Nourse 119 AD 922, 105 NYS 1134; Mance 119 AD 914, 104 NYS 1133; Thompson 118 AD 918, 103 NYS 1143; Lodge 118 AD 917, 103 NYS 1132; Vandenburgh 52 AD 617, 65 NYS 365: Hunter 46 Mis 421, 92 NYS 311; Sun Mut Ins Co 1 Hilt 50); file printed case within time allowed after default (Gamble 9 AD 407, 41 NYS 277), make case ('Palmer 56 How 354); serve papers (Callan 154 AD 924, 139 NYS 868; Sayer 3 Mis 245, 22 NYS 773; Wheeler 5 Daly 387). If appellant otherwise entitled to be heard: appeal will not be dismissed for failure to file case (See Goldschmidt 47 Supr 184). Iieave to renew motion: in case of failure to perfect appeal as provided by rule CHawkes 137 AD 930, 123 NYS 1119). Second appeal: after such dismissal, cannot be taken without leave (Sperling 26 AD 64 50 NYS 209). Until case and exceptions settled and filed: no relief granted under rule ('McLouth 128 AD 918, 11-3 NYS 1139; 'Lawyer 126 AD 926, 111 NYS 1128). OFENINe DEPAUI.T IN FUSING- AND SERVINCf PAPERS: WHERE APPI,IED FOR — In appellate court: (Banker's Money Order Assn 125 AD 373, 109 NYS 847; Hanson 117 AD 39, 101 NYS 1061). OPENING DEFAUI.T IN FILING AND SERVING PAPERS: GRANTED— Conditionally: (Jones 162 AD 935, 147 NTS 1118), rr. 232-234 OLEVENOER'S RULES OF CIVIL PRACTICE 182 defended against claim (Hewlett 197 AD 362, 189 NYS 27). BTT^E APFKICABI^E — Bastardy: conviction in court of special ses- sions so as to require certain indorsement on voluntary examination of complainant (•PxThomann 60 Mis 414, 113 NYS 581). practice ttnseb municifak coubt bui.es distinguished— (Wiener 80 Mis 234, 140 NYS 948). BUI.E CITED— But not applied: (Kramer 173 AD 892, 157 NYS 1131; McKeon 168 AD 887, 152 NYS 435: McCarthy 48 Mis 633, 96 NYS 139; Loper 32'Mis 534, 67 NYS 329). 435; Stafford 21 AD 4'76, 47 NYS 688; O'Dell 16 AD 103. 45 NYS 119). EXTENSIOir GBAITTED — Failnre of justice: a probability otherwise (Crittenden 5 How 310). Orlerlnal counsel had gone to war: new at- torney only recently appointed, case im- portant in principle and in pecuniary re- sults (Strong- 25 How 438). To amend case to conform to rule: an- nounced in controlling decision not known to profession at time case was made (Shel- don 14 How 18). EXTEITSIOM' 07 TIKE PBOFEB — After default: without having default opened (♦Rothschild 9 AD 406, 41 NYS 293). EFFECT OF EXTENSIOIT — Notice of appeal: time to serve not extended (Sails 27 How 133). OTHEB BEI.IEF PBOFEB — Case deemed a1>anaoned: for discrepancy be- tween printed case and case as settled (Tyng 42 Supr 235). Judgment affirmed: (Sprague 30 Hun 246); in case of failure to make or serve case (Oeters 15 AbP 263; Brown 15 AbNS 344, sc 46 How 465), question not decided (See Warren 13 AbP 28, 32 Barb 664). JVtODIFICATION OF OBDEB BV AFFEK. I^ATE DIVISION PBOFEB — Besettlemeut: of account of committee of incompetent (*ChapmaT> 162 NY 456). ON BEVEBSAI^ AFFEI^I^ATE DIVISION MAV MAKE NE'W FINDINGS — Executors and administrators; unreasonably Rule 233. Extension of time for serving case on appeal or amendments. No order extending the time to serve a case on appeal or amendments thereto shall be made, except at the close of the trial, unless two days' notice of the application for such an order shall be given to the adverse party. EDITOBIAI^ NOTES — Source: General Rule of Practice 32. For- merly Rule 27 of 1849; Rule 24 of 1852; Rule 36 of 1858; Rule 41 of 1871, 1874; Rule 32 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Case, when necessary, CPA § 575. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. WHO MAV GBANT EXTENSION — AppeUate court: (»McKeon 168 AD 887, 152 NYS 435; *Staftord 21 AD 476, 47 NYS 688; *0'Dell 16 AD 103, 45 NYS 119). City court judge: in action therein, after motion made to dismiss in appellate divi- sion ('McCarthy 48 Mis 633, 96 NYS 139). Trial court: (McKeon 168 AD 887, 152 NYS Rule 234. Papers constituting record on appeal. In all causes to be heard in the appellate division, the papers shall be furnished by the appellant or the moving party, and in submitted controversies on agreed facts, 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 statement of facts has been filed in the clerk's office pur- suant to section five hundred and forty-six of the civil practice act; but if it shall be necessary to make a case or bill of 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 ease 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 on 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 on 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 agreed statement of facts. To these papers shall be attached the case or bill of 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 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 a copy could not be procured. The foregoing* papers shall constitute the record in the appellate division. The papers in all appeals from orders 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 originals 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. 183 APPEALS rr. 234-236 They shall be filed with the clerk -within fifteen days after the appeal is taken, and, at the same time, the appellant shall serve on his adversary three printed eopie,s thereof. If the party whose duty it is to file and serve papers under this rule shall fail so to, do, the other party may move in the appellate court on any motion day, on three days' notice, to dismiss the appeal or for other relief. EDITORIAIi NOTES— Source: General Rule of Practice 41, except last paragraph. Formerly Rule 32 of 1849; Rule 29 of 1852; Rule 43 of 1858; Rule 50 of 1871, 1874; Rule 41 of 18i77, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Stipulation in lieu of certification, CPA § 170; Case, when necessary, CPA § 575; Case, contents of, CPA § 576; Record on appeal, CPA § 616. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. SIGNATURE or JtTDG-E NECESSARY — Appeal from order: (Steinleger [Dec 7, 1921] 66 NTLJ 825). Rule 235. Records and briefs on appeal; printing, indexing and delivery. The records and briefs and all other papers furnished in the appellate division in calendar causes shall be printed on white writing paper, ten and one-half inches by eight inches, and bound on the edge of the greater length, with a margin on the outer edge of the leaf not less than one and a half inches wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long and three and a half inches wide. The folios, numbering from the commencement to the end of the record, shall be printed on the outer margin of the page. The record and briefs in each cause shall be uniform in size and printed in roman type of eleven point size. All cases cited in the briefs from the courts of this state shall be cited from the official reports if there reported in full. The party whose duty it is to furnish the papers shall comply with any rules of that appellate division as to the number and time of filing and service of copies of records, printed papers and briefs. The record 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 pages where it is admitted in evidence and printed in the record. Such index shall also contain a reference to the pages where a motion for a dismissal of the complaint or for the direction of a verdict appears. At the top of each page containing testimony shall be printed the name of the witness whose testimony appears thereon and of the party by whom called, and a statement whether the examination is direct, cross or re-direct. Each affidavit or other paper printed on 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 is directed must be printed in italics. EDITOBIAi; NOTES— Source: General Rule of Practice 43, rewrit- ten. Formerly Law Rule 55; Rule 6 of the court of appeals, amended July, 1857; Rule 33 of 1849; Rule 30 of 1852; Rule 46* of 1858; Rule 52 of 1871, 187^; Rule 43 of 1877; Rule 4'2 of 1880, 1884; Rules 41 and 42 of 1888; Rule 43 of 1896, 1900, 1919, 1913. Text in italics is new matter, inserted June 17. 1921. Civil Practice Act references: Record on ap- peal, CPA § 616. Star (») means read Not into SEADI^INE in capitals. For illustration see Rule 1. PRINTED CASE NECESSARY — New trial: motion before appellate division for, before referee on interlocutory judg- ment requiring further proceedings (Cald- well 151 AD 883. 135 NTS 1103). STYI.E OF TYPE PROPER — Italics: portions of pleading to which mo- tion to strike' and separately state and number directed not printed in ('Park & Tilford 160 AD 21, 144 NTS 907); plus small capitals for parts of testimony favor- able to appellant ('Fuchs 34 StR 925, 12 NTS 870), testimony favorable to appel- lant (•Campbell 50 AD 460, 64 NTS 198). PENAITY POR IMPROPER TYPE — Case: substitution of properly printed, be- fore argument (Campbell 50 AD 460, 64 NYS 198). Costs: deprivation of, to abide event of new trial (Fuchs 34 StR 925, 12 NYS 870). Rule 236. Briefs and points to be exchanged by parties. 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 it may deem expedient. EDITOBIAI. NOTES— Source: General Rule of Practice 42. For- merly Rule 42 of 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEABI^INB SERVICE OP BRIEF ON ATTORNEY POR RESPONDENT TIMEIY — Witliln fifteen days: of commencement of term, for noncompliance case put over term (•Haase 101 AD 336, 91 NYS 373). rr. 237-239 CLEVENaER'a RUhEiS OF CIVIL PRACTICE 184 Rule 237. Calendar practice; notes of issue; default judgments. The appellate division of each department may adopt rules regulating the hearing of causes, the filing of notes of issue, the preparation and publication of calendars and the calendar practice in such department. Judgment of reversal by default will not be allowed. Where the cause is called in its order on the calendar, if the appellant fail 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. EDITOBIA^ NOTES — Source: General Rule of Practice 39, except first two paragraphs and last three sen- tences omitted. Formerly Rule 37 of 1849; Rule 34 of 1852; Rule 41 of 1858; Rule 48 of 1871, 1874; Rule 39 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 39, third paragraph, read: "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 Oode of Civil Procedure." Text til Italics is new matter, inserted June 17, 1921. StiiT (*) means read Not into HEADIiIH'i: in capitals. For illustration see Rule 1. AFFIBMAirCE BY DEFAVI^T GRANTED — Appeal placed ou calendar: by respondent when appellant failed to do so after first default opened on condition that it be done (Luft 13 AbNS 175). AFFEAI^ DISMISSED — Cause passed twice on calendar: former rule (Scott 165 AD 948, 140 NYS 1144; Monarch Road Roller Co 154 AD 918. 138 NYS 1130; Collins 152 AD 956, 137 NYS 1115; Parker 151 AD 903, 135 NYS 1130; Gottshall 149 AD 937, 134 NYS 1133; Thompson 149 AD 929, 133 NTS 1146; Dixon 146 AD 905, 133 NYS 1118; Buffalo Lockport & Rochester Ry Co 142 AD 911, 127 NYS 1114; Daniele 137 AD 933, 122 NYS 1126; Casey 136 AD 945, 121 NYS 1127; PxCarmody 136 AD 915, 120 NYS 1139; Hoolihan 131 AD 928, 115 NTS 1125). DEFAUI^T BEI^IEVED — Second default: will be denied relief where appeal appears to be without merits (•Luft 13 AbNS 175). Rule 238. Opinions; copies and publication. Before any decision of the appellate division of the supreme court in any department in which an opinion is written is announced, there shall be furnished to the clerk of the court a copy of each opinion delivered by the court, and immediately after the announcement of the decision and on the same day, the clerk shall transmit such copy or copies so received by him, duly certified as required by section ninety-two of the judiciary law, and a list of all cases decided at the same time, to the supreme court reporter, and no decision on any appeal in which an opinion is written shall be announced until a copy of the opinion has been furnished to the clerk as aforesaid. No copy of any opinion in any case decided by the appellate division in any department shall be delivered to any person untU after the decision is announced and no copy of such opinion shall be delivered to any person except counsel in the case until after the list of decisions and certified copies of the opinions shall have been transmitted to the supreme court reporter. Copies of the opinions filed by the appellate division shall he furnished to each counsel in the cause ivithout charge. The supreme court reporter shall publish the opinions of the appellate division as soon as practicable without waiting to publish together all the opinions of a particular term or month. EDITOBIAI> NOTES — Source: General Rule of Practice 85 broad- ened, as added in 1913. Text In Italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. Rule 239. Orders of appellate division on reversal. The appellate division, on rendering final judgment on appeal pursuant to the provision of section five hundred and eighty-four of the civil practice act, on reversing or modifying a judgment entered on the decision of the court, or the report of a referee, without granting a new trial, may reverse any finding, and shall make such new findings of facts proved on the trial as shall be necessary to sustain the judgment awarded by the appellate division. The tacts as found by the appellate division shall be inserted in its order for judg- ment and the facts as found by the special term or referee before whom the case was tried which are reversed by the appellate division likewise shall be specified in such order. EDITOBIAXi NOTES— Source: General Rule of Practice 34, second paragraph, last two sentences. Formerly Daw Rule 47; Rule 27 of 1849; Rule 24 of 1852; Rule 36 of 1858; Rule 43 of 1871, 1874; Rule 34 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Test in italics is new matter, inserted June 17, 1921. Civil Fractlce Act references: Judgment or order on appeal, CPA § 584; Order of re- versal to specify grounds, CP A § 620. Star (*) means read Not Into HEADLINE in capitals. For Illustration see Rule 1. 185 ACTION TO RECOVER REAL PROPERTY rr. 240, 241 TITLE 28 ACTION TO EECOVER REAL PROPERTY Rule 240. Description of property in complaint. 341. Verdict, report or decision to state nature of plaintiff's estate. in arrear to be stated in judgment, CPA § 1000; Effect of judgment rendered after trial of issue of fact, CPA § 1009; Limita- tions of actions in certain cities, CPA EDITORIAIL NOTES— Civil Practice Act references; Action to re- cover real property, CPA §§ 990-1011-a; Damages for withholding real property-j CPA § 990; Action cannot be maintained in § lOH-a, certain cases, CPA § 992; Amount of rent Rule 240. Description of property in complaint. The complaint in an action to recover real property or the possession thereof must describe the property claimed, with reasonable certainty in such manner that, from the description, possession of the property claimed may be delivered. EDITORIAI^ NOTES— Source: CCP § 1511, rewritten, except phrase "in an action to recover real property or the possession thereof," which is taken from CCP § 1496, CCP § 1511 revised from 2 RS 304, pt 3, c 5, tit 1, § 8, CCP § 1511 read: "The complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of lot, if there is any, or in some other appropriate manner; so that, from the' description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADKINIi in capitals. For illustration see Kule 1. DESCRIPTION SUrPICIENT — About fifty acres; in southern part of lot number 8 in 15th range of lots in town- ship number 7 in 4th range at town- ship in P and G's purchase (Stjohn 23 Barb 25). Amendment; permissible of description, right as to patent, number of lot and two of four sides (•Russell 20 NT 81); per- mitted by inserting description contained in deed put in- evidence ('Olendorf 1 Lans 37). Eq.nal south half part; of certain lot pur- chased of certain persons, deed referred to for further description (Walter 23 Barb 228) lots:' (Sheridan 72 NT 170). XOanslon-honse : and lot known as 171 Clin- ton Street in city of Brooklyn (Gilman 111 NY 265, rev 1 StR 567). Metes ana honnas: property described by (Leprell 112 NY 364; Ford 17 How 447; Sanders 16 How 308). Nature and quality; of estate not stated (Clark 47 Barb 599, afd 51 NT 646). No lands descrihed; (*Budd 18 Barb 494;. Occupied by certain persons: described as (*Peart 2 NTS 322). Particular description: of city lot (Vrooman 6 Hun 326; Garner 6 Duer 539; Moores 52 Supr 283). Property mentioned in complaint: uncertain as to whether included in description con- tained in deed put in evidence (*Jarvis 36 StR 711). Biver as boundary: description giving, does not include land between high and low water majrk (*Jarvis 91 Hun 349, 36 NTS 220, afd 157 NT 445). Single parcel of 25 acres: where comparison of judgment roll and complaint show part recovered and part not recovered (Barley 13 NYS 211). Straight line: descriptive of, and not of property (•Rowla.nd 18 NTS 205). IJndlTlded part of lot; judgment for cannot be had if entire premises claimed (*Smlth 3 CivP 398). Vacant; lot not alleged to be ('Sanders 67 Hun 105, 22 NTS 20, afd 142 NY 679). Whole parcel of land: of which, in part, de- fendant was in possession definitely de- scribed but indeflnlteness as to that nart (•Rank 5 CivP 368, 50 Supr 163). Rule 241. Verdict, report or decision to state nature of plaintiff's estate. A verdict, report or decision in favor of the plaintiff in an action for the recovery of real property or the possession thereof, and the judgment rendered thereon, must specify in writing the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate he less than a fee. duration of term (*liever 82 Hun iJDITOBIAIi NOTES — Source; COP § 1519, except to provide for verdict in writing, revised from 2 RS 304, pt 3, c 5, tit 1, § 30, subdivision 7. Text ia. italics is new matter, inserted June 17, 1921. „ Star (•) means read Not into HEADIiINE in capitals. For illustration see Rule 1. HISTOItY Prom the Revised Statutes; which declaxe the essentials of a complaint and verdict in ejectment. 3 R. S. (5th Ed.) 5, tit 1, §10, and section 23, subd. 7 The Code has not changed the provisions of the Revised Statutes, except so far as to omit stating expressly the form of the complaint; but the Code, in prescribing the form of the verdict, indicates what allegations and proofs are essential to maintain the action (Kelsey 171 AD 877, 157 NYS 730). STATEMENT OP NATURE OP ESTATE RE- QUIRED^ Estate for life of another; (Simmons 19 AD 449, 46 NTS 730). Estate in. fee: claimed by each party (♦McKay 188 I^S 799). lease; 393, 31 NTS 356). Omission: in verdict, to specify estate, ren- ders it fatally defective (Ramapo Mfg Co 155 AD 443, 140 NTS 490 dis op; Meehan 131 NTS 37; Shajiley 134 AD 845, 119 NTS 175); in verdict and judgment (Stage 179 AD 820, 167 NTS 41). Undivided part of lot; such part must be described in verdict undler prior statute (Vrooman 2 Barb 330; Truajc 2 Barb 156). STATEMENT OF NATURE OP ESTATE SUPPICIENT — Bctuitable title: allegation of, without any allegation of estate in fee, for life or a term of years ('Kelsey 171 AD 877, 157 NYS 730). Pee simple; sufficiency of allegation of not discussed, but verdict and judgment held defective for failure to sufficiently describe property (DeClemente 8 Mis 45, 28 NTS 513). RUIE CITED— But not applied: (Ramapo 216 NT 362; Poster 175 NT 467). r. 243 CLEVENGER'S RULES OF CIVIL PRACTICE 186 TITLE 29 ACTION FOR DOWER Rule 243. Dower; payment of gross sum. Rule 243. Dower; payment of gross sum. If the plaintiff in an action for dower consent to accept a gross sum in full satisfaction and discharge of her right of dower, the same shall be estimated according to the value of an annuity of five per centwrn upon one-third of the value of the property at the time of the husband's death during the probable life of the plaintiff according to the American Experience Table of Mortality. [Table printed following- rules.] 1877; Rule 71 of 1880, 1884, 1888; Rule 70 EDITORIAI^ N-QTES — of 1896, 1900, 1910, 1913. Source: new, based on General Rule of Prac- Text In italics is new matter, inserted June tice 70. Formerly Equity Rule 127; Rule 17, 1921. 80 of 1849; Rule 75 of 1852; Rule 84 of Star (•) means read Not into HEAS:^IirE 1858; Rule 85 of 1871. 1874; Rule 76 of in capitals. For illustration see Rule 1. 187 ACTION FOR l^ABTITION rr. 245, 5i46 TITLE 30 ACTION rOR PARTITION Rule 24i5. Oeneral requirements as to complaint. 246. Ascertainment by court of rights of parties before interlocutory judgment. 247. Reference on default or admission in case of infants, absentees or unknown parties. 24'8. Proof required on application by party for money paid into court. 249. Notice of stay of sale. 290. Referee to be selected by court. 251. Proceedings on death of parties. EDITORIAL NOTES — Civil Practice Act references: Action for partition, CPA §§ 1012-1076; Issues of fact triable by jury, CPA § 1023; Interlocutory judgment, CPA § 1024; Reference to in- quire as to creditors, CPA § 1038; Duty of referee, CPA § 1039; When proceeds to be paid into court, CPA § 1045; Disposition of deposit, CPA § 1046; Withdrawal of de- posit, CPA § 1047; When proceeds payable directly to parties, CPA § 1048; Shares of Infants, CPA § 1063; Presumption of death of unknown heirs, CPA § 1065. Rule 245. General requirements as to complaint. The complaint in an action for partition must describe the property with reasonable certainty, and must specify the rights, shares and interests therein of each of the parties, as far as the same are known to the plaintiff, and also must contain any other allegation required by statute. if a party, or the share, right or interest of a party, be unknown to the plaintiff; or if a share, right or interest be uncertain or contingent; or if the ownership of the inheritance depend upon an executory devise; or if a remainder be contingent, so that the party cannot be named; such facts also must be stated in the complaint. If infants be interested, the complaint shall state whether the parties own any other lands in common. ESITOBLfti NOTES — Source: except last sentence is CCP § 1542; last sentence is General Rule 65, last clause. CCP § 1542 revised from 2 RS 317, pt 3, c 5, tit 3, §§ 8, 9 and L, 1830, c 320, I 41. General Rule 65 was formerly Equity Rule 122; Rule 77 of 1849; Rule 72 of 1852; Rule 77 of 1858; Rule 78 of 1871, 1874; Rule 69 of 1877; Rule 65 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text In Italics is new matter, inserted June 17, 1921. Star (*) means read Not into SEADIiINB in capitals, For illustration see Rule 1. COMFI^AINT SUPPICEENT— Amendment of record: proper so as to give judgment according to respective rights of parties altho interest of parties not cor- rectly described in petition (Thompson 15 Wend 340). Apparent Interest: properly alleged by state- ment of deeds, parties thereto, and records (Bell 9 NTS 400). Claim of Interest: alleged, exact nature thereof unknown (Townsend 126 NT 370). Devise: stated to be void under which de- fendants claimed interest (Voessing 12 Hun 678). Pee: ownership in, by heirs (Wainman 110 NT 429). Heir: interest of plaintiff claiming as, not stated ('Bowen 22 CivP 79); possession of plaintiff as, not stated (•Stewart 56 How 193) lufonnatlon and 'belief; that defendants may claim certain rights or interest ('Satterlee 39 AD 420, 57 NTS 341). Lienor: interest of defendant as (Bogardus 7 How 305). ^ ., No other land held In common: failure to allege, not ground of demurrer (Prltchard 32 Hun 417). Possession allejred: persons In, or claiming some interest, nature and character thereof unknown (Satterlee 173 NT 91, rev 66 AD 306, 72 NTS 675). Possession not alleired: of ancestor at time of death ('Martin 156 AD 327, 141 NTS 396); of plaintiff ('Howell 7 Lans 193); of plaintiff or cotenants (•S&tterlee 39 AD 420, 57 NTS 341). Bemaindermen: rights and interests of stated (Diehl 9 CivP 267). Rights, shares and interests: of defendants, failure to state ('Lumb 139 NTS 401, dis op). Seized and possessed: plaintiff and defend- ants (Balin 67 Hun 311. 22 NTS 193), of fee of undivided one-half part of premises described (Del Cambre 210 NT 460). Seized in common: sufficient allegation of possession of parties (Jenkins 3 Paige 242). Seizin: allegation of, imposts ownership In fee (Lucet 2 Cai 385); of all parties of their different rpositions (Bradshaw 8 Johns 558); of ancestor through whom parties derive title, unnecessary to allege (Brad- shaw 8 Johns 558). Some claim on interest: allegation as to as- sertion of (Place 89 AD 167, 85 NTS 766). Tenants in common: land averred to be only realty owned in common by defendants (Moffiatt 13 Hun 449); omission of allega- tion that parties were, harmless If no foundation for suggestion that they were not (Noble 26 Barb 475); rights and inter- ests of (Grossman 32 AD 32, 52 NTS 314). Uncertain and unknown; interests alleged to be (Smith 139 AD 657. 124 NTS 380). Rule 246. Ascertainment by court of rights of parties before interlocutory judg- ment. If a defendant in an action for partition has made default in appearing or plead'ino' or a party be an infant, the court must ascertain the rights, shares and interests' of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action. rr. 246-248 OLEVENaER'a RULES OF CIVIL PllACTWE 188 EDITORIAXi ITOTES — Source! CCP § 1545, as revised from 2 RS 317, pt 3, c 5, tit 3, S§ 22, 23. Text m ItallcB Is new matter. Inserted June Star (•)' means read Not Into HEADI^IIIE jn capitals. For Illustration see Rule 1. CONSTBTTCTIOIT VriTH SErEBENCE TO CCP S 1544 AITD OBP 66 — Keasonable constmctlon: mot Intended to aillow Infants to be deprived of right of trial by jury guararuteed by % 1544, or to compel other parties to forego that right on application of Infant parties (Fair- weather 181 NY 117, off 98 AD 267, 90 NYS 516). BEFEBENCE PBOFEB— BUI taken as confessed.: against all defend- ants (Larkin 2 Paige 27). Defanlt: of some of the defendants (Bell 9 NYS 400). Rule 247. Reference on default or admission in case of infants, absentees or unknown parties. Where the rights and interests of the several parties, as stated in the complaint in an action for partition, are not denied or controverted, if any of the defendants he infants or absentees or unknown, the plaintiff, on an aflSdavit 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 plaintiii's title and interest in the premises and of the several matters set forth in the complaint, and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances under which the same are held. Infant: application by, after filing answer and Issue joined, where adult plaintiff ob- jects ('Fairweiather 181 NY 117, afC 98 AD 267, 90 NYS 516). Stljmlatlon: order of reference made upon (•Hicks Beach Co 99 Mis 33, 163 NYS 203). POWEBS POSSESSED BY BEPBBEE— Pleadings: no right to find parties' rights different from statement in ('McAlear 19 WkD 252). BUI^E APFUCABKE — No default: and no infant party ('Levine 71 AD 204, 75 NYS 706). EFFECT OP BUI^E— County conrt: jurisdiction of, not enlarged (Bell 9 NYS 400). BUIE CITED— But not appUecl: (Mlngay 142 NY 449). EDITOBIAI^ NOTES — Source: General Kule of Practice 66, except last sentence. Formerly Equity Rule 124; Rule 78 of 1849; Rule 73 of 1852; Rule 78 of 1858; Rule 79 of 1871, 1874; Rule 70 of 1877; Rule 66 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in Italics is new matter. Inserted June 17, 1921. ClvU Practice Act references: Reference to inquire as to creditors, CPA § 1038. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. EFFECT OF BITIiE — Statute; rule has force of (Fairweather 98 AD 267, 90 NYS 516, aff 181 NY 117, 73 NE 565). REASON FOB BUKE — In fnrtlierance: of provisions of CCP § 1545 (Fairweather 98 AD 267, 90 NYS 516, aff 181 NY 117, 73 NE 565). BEPEBENCE PBOFEB — Defendants defaulted: to take proof a.s to title, liens etc (Corbett 134 AD 544, 119 NYS 543). Infant defendant: upon application of, after putting in issue complaint, against plain- tiff's objection ('Fairweather 98 AD 267, 90 NYS 516, aff 181 NY 117, 73 NE 565). No default: and no Infant parties ('Lievine 71 AD 204, 75 NYS 706). POWEBS POSSESSED BV BEFEBEE — Abstracts: require production of, by com- plainant and tracing back of title as tenant in common to common source of title of several cotenants (Hamilton 7 Paige 29). Uortgag'e: pass upon validity altho question not raised by formal issue in pleadings (Halsted 55 NY 445). Pleadings: no right to find contrary state- ment of rights of parties in CMcAlear 19 WkD 252). Rule 248. Proof required on application by party for money paid into court. On an application to the court hy a party in an action for partition for money paid into court, he must produce the following papers: 1. An affidavit made by himself, or, if a sufficient excuse be shown, by his agent or attorney, stating the true amount actually due on each incumbrance, and the name and residence of the owner of the incumbrance, as far as they are known, or can be ascertained with due diligence. 2. An affidavit showing service of a notice of the application on each owner of an incumbrance. Service of the notice within the state must be personal, or by leaving it at the owner's residence with some person of suitable age and discretion, at least fourteen days previous to the application. Service without the state, if personal, must be made at least twenty days previous to the application. If the owner of the incumbrance reside without the state, and the place of his abode cannot be ascertained with reasonable diligence, notice may be served on him by publishing it in such news- paper or newspapers as the court may direct, once in each week for the four weeks immediately preceding the application. EDITOBIAI^ NOTES— Source: C(3P § 1564. except first and last sentences, as revised from 2 RS 317, pt 3, o 5, tit 3, §§ 45, 46, first part. Text In Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Application for money, OPA § 1041. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. SEBVICE WITHOTTT STATE BEOTTKAB — Personal; delivery of copy summons to In- fant and another to party with whom she resided (O'Donaghue 184 NY 365). Btri.E CITED — But not appUed: (Hulbert 86 Mis 662, 149 NYS 568). 189 ACTION FOR PARTITION rr, 249-251 Kule 249. Notice of stay of sale. No order to stay a sale under judgment in partition shall be granted or made by a judge out of court except . on notice of at least two days to the plaintiff's attorney. UDITORIAI^ NOTES — Source: General Rule of Practice 67, as to partition. Formerly Rule 80 of 1858; Rule 81 of 1871, 1874; Rule 72 of 1877; Rule 67 of 1880, 1884. 1888, 1896, 1900, 1910, 1913. Text In italics is new matter, inserted Jun« 17, 1921. Civil Practice Act references: Stay gener- ally, CPA § 167; When stay of proceedings not to exceed twenty days, CPA § 169. Star (*) means read Not into BEADILIITE In capitals. For illustration see Rule 1. Rule 250. Referee to be selected Tjy court. A referee to be appointed in an action for partition to take proofs or to sell shall be selected by the court, and the court shall not appoint as such referee a person nominated by a party to the action or his counsel. EDITOBIAI^ NOTES— Source: General Rule of Practice 66, last sentence. Formerly Equity Rule 124; Rule 78 of 1849; Rule 73 of 1852; Rule 78 of 1858; Rule 79 of 1871, 1874; Rule 70 of 1877;. Rule 66 of 1880, 1884, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into READKINE in capitals. For illustration see Rule 1. ItEFEBEE SCUST BE SEI.ECTED BY COTTBT Mandatory: rule construed as, and order violating it is void (Hicks Beach Co 99 Mis 33. 163 NTS 203). BEFEBEE IMFBOFEBI.Y SEIiECTED— Stipulation of parties; designated by (Hicks Beach Co 99 Mis 33, 163 ISTYS 203). Rule 251. Proceedings on death of parties. If, on the death of one of two or more plaintiffs, or one of two or more defendants, in an action for partition, the interest of the decedent in the property passed to a person, not a party to the action, the latter may be made defendant by the order of the court and a supplemental summons may be issued to bring him in. EDITOBIAi; NOTES— Source: CCP § 1588, as revised from 2 RS 387, pt 3, o 7, tit 1, §§ 6 and 7. Text in italics is new matter, inserted June 17, 192^. Civil Practice Act reference: Supplemental summons, CPA § 219. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. PEBSONS MADE DEFENDANTS- Children; one of several, of iplaintlfC made plaintiff by court order ("Thwing 18 How 458). Heirs: of one of several defendants (Rey- nolds 5 Paige 161; Wilde 4 Paige 481; •Requa 16 NY 193). Successor in interest; of one of several defendants (Gordon 13 How 405). rr. 255, 256 CLETENOER'S RULES OF CIVIL PRACTICE 190 TITLE 31 ACTION FOR FORECLOSURE Rule 2i55. Complaint to state whetlier action for mortgage deibt has been brought. 2'56. Reference on default or admission. 267. Application for judgment on default or admission. 268. Proof of notice of pendency. 269. Contents of judgment of sale. 260. Notice of application for stay of sale. 281. Disposition of surplus. 262. Application for surplus moneys; reference. 263. Proceedings before referee. 264. When surplus to be paid into surrogate's court. 265. Referee to be selected by court. 266. Mortgage and assignments to be filed or recorded before conveyance. 267. Application to personal property liens. EDITOBIAi; NOTES — Civil Practice Act references: Action to fore- close a mortgage, CPA §§ 1077-1088; Action to foreclose after recovery of judgment for mortgage debt, CPA § 1077; Action for mortgage debt subsequent to beginning foreclosure, CPA § 1078; Parties, CPA § 1079; Notice of pendency of action to be filed, OPA § 1080; Pinal judgment must direct sale, CPA § 1082; Judgment for deficiency, CPA § 1083. Rule 255. Complaint to state whether action for mortgage debt has been brought. The complaint in an action to foreclose a mortgage upon real property must state whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part thereof has been collected. verbatim, c 1, tit 2, as revised . § 155. inserted June ESITOBLAX NOTES — Source: CCP § 1629 from 2 RS 191, pt 3 Text in italics is new matter, 17, 1921. Star (•) means read Not into HEASIiINE in capitals. For illustration see Rule 1. ACTION TO BECOVEB ANV PART OP MOBTQAGE DEBT — Action to foreclose mort^a^e: although ap- plication for judgment is withdraAvn (Smart 190 AD 818, 180 NTS 814); for in- terest only ('Pretzfeld 34 Mis 329, 69 NYS 807). S-TATEMENT HEI^D SUFFICIENT — "No other action or proceeding^ at law or in equity: has been brought to foreclose the said plaintiff's said lien or claim or tO' re- cover the amount due to the plaintifE" (Gates & Co 172 AD 581, 158 NYS 1070). "No otber action has been had: for the re- covery of the said sum secured by the said bond and mortgage" (Schieck 77 AD 321, 79 NYS 233). "No proceedis^s have heen had at law or otherwise: to the knowledge and belief of the said plaintiff for the recovery of the said sum secured by the said bond and mortgage or any part thereof" (Bottom 21 Mis 556, 47 NYS 733). Phraseology of rule: (Pattison 4 Paige 549). OIOISSION BENDER COMFI^AINT IN- SUFFICIENT — Rule 256. Reference on default or admission. If, in an action to foreclose a mort- gage, the defendant fail 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, unless the court shall ascertain and determine the amount due, the plaintiff may have an order referring it to some suitable person as referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels. Where the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants be absentees, the order of reference also shall 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 Complaint dismissed: (Bachman 164 AD 725. 149 NYS 610; Abbott 122 AD 274, 106 NYS 970; Weaver Hardware Oo 98 Mis 413, 163 NYS 121). Demurrer sustained: (Dahl 172 AD 919, 157 NYS 14). Personal judgment allowed: foreclosure de- nied (Prime 174 AD 406. 159 NYS 1041). AKENDMENT PERMITTED — Showing whether any part: had been col- lected (Lovett 12 Barb 67). To supply allegation: (Gates & Co 172 AD 581, 158 NYS 1070), in furtherance of jus- tice under CCP § 723 (Shultz 79 Mis 357, 140 NYS 429). OBJECTION TO OMISSION THOEI^-S' — On appeal: if not raised In trial court (♦Szemko 176 AD 620, 163 NYS 382). ISSUE RAISED BV DENIAX — Denial of knowledge or Information: suf- ficient to form belief ('Riesgo 116 AD 414, 101 NYS 832, afd 194 NY 600). RUIiE APF]^ICABI.E — Mechanics lien: action to foreclose (Prlm« 174 AD 406, 159 NYS 1041; Bachmann 164 AD 725, 149 NYiS 610; Abbott 122 AD 274, 106 NYS 970; Weaver Hdwe Co 98 413, 163 NYS 121; Shultz 79 Mis 357, NYS 429). BUI^E CITED— But not applied: (Dudley 138 NT 458). Mis 140 191 ACTION FOB FORECLOSURE rr. 256-258 payments which have been made, and to compute the amount due on the mortgage, preparatory to the application for judgment of foreclosure and sale. EDITORIAL NOTES — Source: General Rule of Practice 60, first paragraph. Formerly Equity Rule 91; Rule 49 of 1849; Rule 46 of 1852; Rule 71 of 1858; Rule 72 of 1871, 1874; liule 63 of 1877; Rule 60 of 1880, 1884, 1888, 1896, 1900. 1910. 1913. Text In italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADI^INE in capitals. For illustration see Rule 1. COMPUTATION BY COURT PROPER — No answer filed: and no infant or absent de- fendants (DeGroot 98 Mis 374, 163 NYS 83; Hill 30 Barb 488). REFERENCE NECESSARV — Absentee defendants: (Corning 6 Paige 179). AFFIDAVIT IN SUPPORT OP MOTION FOR ORDER OF REFERENCE SUFFICIENT — Merely statinsr bill: had been confessed, without showing whether any defendants were infants or absentees ('Anonymous 3 How 158). REFERENCE PROPER — Absent defendants: (Hatfield 71 Hun 51, 24 NTS 596; Ontario Bk 2 Paige 301). Infant defendant: who has put in general answer by guardian (Ontario Bic 2 Paige 301). Xssne of payment: to take proof on, where there are no infant or absentee defendants (•Godwin 144 AD 164, 128 NYS 791). ORDER OF REFERENCE PROPER — Extra allowance: to (plaintiff directed, with- out further notice, upon coming in of ref- eree's report ('Citizens Sav Bk 14 CivP 340). Inquiry: as to amount due with trial of issues between plaintiff and other defend- ants combined, as against non-answering defendant ('Cram 4 AbP 193). Report of referee: that upon coming in thereof "the same be affirmed and the plain- tiff have the usual judgment of foreclosure and sale with costs without further notice" (•Citizens Sav Bk 14 CivP 340). CONDUCT OF TRIAi; BY REFEREE PROPER — Affidavit: sworn to before commissioner of deeds, reception of in evidence (•Security Fire Ins Co 15 AbP 479). ORDER REQUIRING- EXAMINATION OF PIAINTIFP NECESSARY — Decease of original plaintiff: during pend- ency of action and his executor not sub- stituted as plaintiff until action was at issue where there was nothing to show that executor had any knowledge in regard to bond and mortgage, or of any possible payment thereof (•Redmond 151 AD 99, 135 NYS 843). ORDER OF REFERENCE SUFFICIENT — Infant defendant: general answer by guar- dian omission to direct referee as required by rule ('Smith 41 Mis 94, 83 NYS 655). IRREG-UIiARITIES IN ORDER CURED — Proof of facts and circumstances: stated in complaint, omission to require referee to take, by order nunc pro tunc, where ref- eree in fact did take such proof (Brody Co 160 AD 310, 144 NYS 631; Ames 158 AD 232, 143 NYS 76). CONDUCT OF REFEREE PROPER — E^caminatlon of plaintiffs: agent as to mort- gage, payments made thereon, and amount due, altho no proof taken of heirship' of infant and absent defendants, where no proof could have affected result (Franklin 123 AD 664. 108 NYS 123). REPORT OF REFEREE SUFFICIENT — Certificate of acknowledgment: of the mort- gagor of the execution of mortgage not set out, altho fact of such acknowledgment stated (•Wolcott 3 How 159). Documentary evidence: before him, abstract of omitted (•Security Fire Ins Co 15 AbP 479). FINDING BY REFEREE CONCX-USTTE— Amount due: (•Crine 1 L,awB 92). Execution of bond: with mortgage, sustained by recital in mortgage (Cooper 17 AbP 342). Rule 257, Application for judgment on default or admission. In an action to fore- close a mortgage, when no answer is put in by the defendant within the time allowed for that purpose, nor any answer denying any material facts of the complaint, the plaintiff may apply for judgment at any special term on due notice to such of the defendants as have appeared in the action, and without putting the cause on the calendar. In such ease, when he moves for judgment, the plaintiff must show whether any of the defendants who have not appeared are absentees, and, if the court has not com- Xmted, he must produce the referee's report as to the proof of the facts and circum- stances stated in the complaint, and of the examination of the plaintiff or his agent, on oath, as to any payments which have been made. ESITORIAI^ NOTES — Source: General Rule of Practice 60, second paragraph and third paragraph, first sen- tence. Formerly Equity Rule 91; Rule 49 of 1849; Rule 46 of 1852; Rule 71 of 1858; Rule 72 of 1871, 1874; Rule 63 of 1877; Rule 60 of 1880, 1884, 1888, 1896, 1900, 1910. 1913. Text In italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADIiINB in capitals. For illustration see Rule 1. NOTICE NECESSARY — Of reference: where parties have notice of application for default judgment, and all parties are present when reference made (•Kelly 4 AbP 354). Second notice: (*PxDonnelly 168 AD 500, 153 NYS 997). IRREG-UIIARITIES IN APPIiICATION CURED — Referee's report: as to proof of facts and circumstances stated in complaint, omis- sion to prevent, by filing such proof prior to day fixed for closing title (Brody Co 160 AD 310, 144 NYS 631). Rule 258. Proof of notice of pendency. In all foreclosure eases, the plaintiff, when he moves for judgment, 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; a description of the property in that county affected thereby; the date of the mortgage, rr. 258-201 OLEVENGER'8 RULES OF CIVIL PRACTICE 192 Civil Practdce Act references; Notice of pendency by plaintiff, CPA § 120. Sta.r (*) means read Not into KEASKIHE In capitals. For illustration see Rule 1. SEiLAY WAIVED — Vrntten consent: of all parties who have ap- peared (Somers 7 AbP 524). the parties thereto, and the time and place of recording the same; has been filed at least twenty days before such application for judgment and at or after the time of filing of the complaint, as required by law. EDITOBIAi NOTES — Source: General Rule of Practice 60, last sentence. Formerly Equity Rule 91: Rule 49 of 1849; Rule 46 of 1852; Rule 71 of 1858; Rule 72 of 1871, 1874; Rule 63 of 1877; Rule 60 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Tejrt in italics is new matter. Inserted June 17, 1921. Rule 259. Contents of judgment of sale. In every judgment for the sale of mort- gaged premises, the description and particular boundaries of the property to be sold, so far as the same can be ascertained from the mortgage, and other instruments on record affecting the property, shall be inserted. Unless otherwise specially ordered by the court, the judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, 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 pro- ceeds of the sale, unless otherwise directed, he pay the expenses of the sale, and that he pay to the plaintiff, or his attorney, the amount 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. EDITOBIAX NOTES — Source: General Rule of Practice 61, first paragraph. Formerly Equity Rule 92; Rule 50 of 1849; Rule 47 of 1852; Rule 72 of 1858; Rule 73 of 1871, 1874; Rule 64 of 1877; Rule 61 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. CiTil Practice Act references: Final judg- ment must direct sale, CPA § 1082. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. JUDGMENT FBOPEB — Junior mortgage deht: (*Frank 61 Hun 496, 16 NYS 369). Property situated outside of state: mort- gagor subject to jurisdiction of court re- quired to execute deed of purchaser (Union Trust Co 102 NY 729, 7 NB 822). Purchase by party: permitting (Bennett 81 NY 308; Cornell 77 NY 203). Sale In parcels: directing (Hoffman 21 Hun 580). Sale of entire premises: order directing, altho unnecessary for satisfaction of plain- Eule 260. Notice of application for stay of sale.. No order to stay a sale under judgment for the foreclosure of a mortgage shall be made by a judge out of court, except on a notice of at least twenty-four hours to the plaintiff's attorney. tiff's claim', where there are liens subse- quent to mortgage (DeForest 62 NY 628; Dobbs 15 Daly 52). Taxes: directing payment of (Cornell 77 NY 203; Easton 75 NY 599; PoughkeeP'Sle Sav Bk 56 How 368; Buttrom 10 AbNC 41; Fleishhauer 9 AbNC 372). JUDGMENT PINAIi — Sale of premises: for satisfaction of debt, order directing with costs and expenses of 'action, and that defendant pay any de- ficiency which might appear after sale (Wager 134 NY 122; Morris 38 NY 172). VAIiIDIT-ir OR HEGUX.ARITY' SIAY BE RAISED COIi£ATERAI^I;Y — General jurisdiction of parties and subject matter: where court rendering had (^Stil- well 139 NY 337, 34 NE 777). PREMISSS PROFERI.Y SOI.D — In parcels: where order directed sale of en- tire premises (DeForest 62 NY 628). Sale of extra lots: where judgment directed sale of mortgaged premises or so much thereof as may be necessary to discharge mortgage debt ("McBrlde 17 Hun 524). EDITORUX NOTES— Source: General Rule of Practice 67, modi- fled a,s to foreclosurCi Formerly Rule 80 of 1858; Rule 81 of 1871, 1874; Rule 72 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 67 read: "No order to stay a sale under judgment in partition or for the foreclosure of a mortgage shall be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff's attorney." Text In Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Stay gener- ally, CPA § 167; When stay of proceedings Bule 261. Disposition of surplus. All surplus moneys arising from the sale of mortgaged premises under any judgment shall be paid by the sheriff or referee making not to exceed twenty days, CPA § 169. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. NOTICE SUPFICIENT — Equity of redemption: suit to foreclose under land contract (Wayne Iron Ore Co 100 Miss 187. 165 NYS 380). Stay of proceedings; in order to show cause (♦Asinari 2 AbNC 454). Subsequent purchaser: stay allowed to, who had surrendered possession of premises to mortgagee (Mut Life Ins Co 23 Mis 563, 52 NYS 795). 193 ACTION FOR FORECLOSURE rr. 261, 2'62 KETENTION O? SUIIFI.VS BV MOBTGA- GEE TJIfBES STATUTE POBECI.OSVBE FBOPEB — Deiua,iid made 1)]r judgment creditor: ajppar- ently entitled thereto, without giving any reason for retaining fund ('Bevier 29 How 411). PAYMENT ON DIRECTION OF COURT PROPER — By depository: altho having notice by serv- ice of summons and complaint that funds ordered paid were claimed by plaintiff in creditors bill (Swart 22 AbNC 125, 6 NYS 710). PROCEEDING TO COVCPJSJ, PAYKENT PROPER — Against referee desl^rnated to sell: contempt proceedings (Fridiger 196 AD 413, 188 NTS 39). Order directing' holder to pay: and directing his imprisonment if he makes default In payment (Silvernail 10 StR 588). 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 made specially 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. If any part of the surplus moneys remain in court for the period of three months, the court, if no application has been made therefor, must, and, if an application therefor is pending, may direct it to be invested at interest for the benefit of the person or persons entitled thereto, to be paid on the direction of the court. ESITORIAI^ NOTES— Source: Except last senfence is General Rule of Practice 61, last paragraph, except last sentence; last sentence is CCP § 1633, sec- ond sentence; first sentence covers CCP § 1633, first sentence. General Rule 61 was formerly Equity Rule 92; Rule 50 of 1849; Rule 47 of 1852; Rule 72 of 1858; Rule 73 of 1871, 1874; Rule 64 of 1877; Rule 61 of 1880, 1884. 1888, 1896, 1900, 1910, 1913. CCP § 1633 revised from 2 RS 191, pt 3, c 1, tit 2, §§ 159, last clause, 160. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Report of officer making sale, CPA § 1088. Star (*) means read Not into EEADI^INE in capitals. For illustration see Rule 1. SFECIAIi DIRECTION PROPER — Banks and trust companies: deposit In (Wil- kinson 57 Hun 191, 11 NYS 442; Fridiger 196 AD 413, 188 NYS 39). RETENTION BY DEPOSITORY PROPER — Until directed to pay: by order of court (Swart 27 StR 113, 7 NYS 558). Rule 262. Application for surplus moneys; reference. Any person claiming the surplus moneys arising upon the sale of mortgaged premises, or any part thereof, either in his own name, or by his attorney, at any time before the confirmation of the report of sale, may file with the clerk in whose office the report of sale is filed, a written notice of such claim, stating therein the nature and extent of his claim, and the address of himself or his attorney. The party moving for confirmation of the report of sale shall present with liis motion papers a certificate of the clerk specifying the notices of claim to the surplus moneys, if any, so filed with him, and an affidavit showing any other unsatisfied lien on the property. On the motion for confirmation, ' or at any time within three months thereafter, on notice to all parties who have appeared in the action or filed claims, any party to the action, or any person who has filed a notice of claim on the surplus moneys, may apply for an order of reference to Ascertain and report the amount due to him or any other person who has a lien on such suirplus moneys, and to ascertain the priority 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 only costs which can be allowed to the party moving for the reference are motion costs of the motion for reference and of the motion to confirm the report, together with necessary disbursements. EDITOBIAI^ NOTES — Source: except last sentence, is General Rule of Practice 64 first sentence; last sentence la 'new, stating' (present law. Forrtierly Equity Rule 93; Rule 51 of 1849; Rule 48 of 1852; Rule 76 of 1858; Rule 77 of 1871, 1874; Rule 68 of 1877; Rule 64 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Test In italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADLINE in capitals. For illustration see Rule 1. BEFERENCE TO DETERMINE CLAIMS DISCRETIONARY— Under former clianccry practice; (Sweet 6 Paige 355). TILING OP CLAIM TIMELY — After order of reference; (Hulbert 8 Paige 651). ACTION RELATING TO SURPLUS MONEY PROPERLY BROUGHT — In county other than that; in which premises were situated and surplus moneys deposited (*Fliess 22 Hun 551). PERSONS 'WHO MAY APPLY POR ORDER OP REFERENCE — Upon death of life tenant; party entitled thereto, where surplus had been invested pursuant to order of court until the death of a person named and upon her death to awa,it further order of court (Velten 17 StR 112). RIGHT TO CLAIM SURPLUS BARRED — Dower: by failure to assert claim in pro- ceedings to obtain surplus, where person to whom surplus paid not prejudiced by failure of widow to make claim (*Nathan 4 Keyes '525, 17 AbP 256). r. 262 CLEVENOER'S RULES OF CIVIL PRACTICE 1&4 OBJECT OF BEFEBENCE — To inform court: of the legal and equltablti titles to the money (Mut L Ins Co 3 Hun 117). PERSONS EfTTITIiES TO PAYHENT OTrT OF SUBFI^TrS— Alimony Judgment holder: (Buffalo Sav Bk 64 Mis 643, 118 NYS 1021). Assignee of mortgage: to whom another deht Is owing by mortgagor, no creditors con- testing (Beekman 29 Barb 658). Attorney: holding lien for services on upon judgment sought to be satisfied by holder out of surplus (Atlantic Sav Bk 3 Hun 209). Creditor of m.ortgagor: who has given notice of pendency of action but had not filed any complaint ('Albro 5 AD 309, 39 NYS 215). Complaint in foreclosure suit: holding judg- ment lien (Field 9 How 75). Devisees: of mortgagor (Delafleld 7 StR 301). Easement owner: in land subject to the mortgage (Winthrope 2 AD 229, 37 NYS 729). Holder of judgment: filed and docketed after decease of defendant (Clark 15 AbP 227), more than 10 years prior to sale (*Floyd 16 Daly 528, 17 NYS 848; 'Floyd 2 LawB 36); lien of lapsed between entry of fore- closure judgment and date of sale there- under ('Nutt 155 NY 309); recovered as a specific lien upon fund (Hull i Hun 298); upon which prior to foreclosure the prem- ises had been sold (Shepard 4 Barb 125: •Husted 17 AbP 137). Holder of sheriffs deed: (Ellsworth 19 AD 38'5, 46 NYS 486). Judgment creditor: of administrator where property sold on foreclosure was liable to be disposed of to satisfy debts of de- cedent mortgagor, and letters testimony had been issued within 4 years before sale (•Di Lorenzo 25 Mis 26, 54 NYS 420). Judgment lien holder: (Fliess 90 NY 286; Terry 60 Mis 562, 112 NYS 450; Wilkin- son 11 NYS 442; Savings Bk 17 Hun 133; Union Dime Sav Inst. 3 Hun 210; Stevens 31 Barb 290; Thomas 30 Barb 268; Averill 6 Barb 470; Tallman 1 Barb 280-; Goetz 15 CivP 11; Cook 6 Barb 410, SO 3 Lans 512; NY Life Ins Co 19 AbNC 92; Purdy 1 Paige 5158; Mut Life Ins Co 23 WkD 427; Bowery Sav Bk 14 WkD 143). Junior mortgagee: (Frank 135 NY 275, rvg 61 Hun 496, 16 NYS 369; Quaokenbush 129 NY 485, afg 61 Hun 388; Burchell 119 NY 486; Fliess 90 NY 286; Vogel 137 AD 200, 121 NYS 927; Fancher 44 AD 637, 60 NYS 837; Bushwick Sav Bk 26 AD 532, 50 NYS 542; Gutwillig 26 AD 26, 49 NYS 984; Elsworth 19 AD 385, 46 NYS 486; Mechanics Sav Bk 83 Hun 282, 31 NYS 921; Baker 23 NYS 1083; Savings Bk 17 Hun 133; Union Dime Sav Institution 3 Hun 210; Freeman 43 Barb 618; Thomas 30 Barb 268; Averill 6 Barb 470; Tallman 1 Barb 280; Mechanic Bk 1 Barb 271, afd 2 Barb 545; Thomas 7 StR 162), who does not release claim on equity of redemption on statute fore- closure (*WaIler 7 Paige 168). lessee for years: of mortgaged premises, holding under a lease containing a covenant of quiet enjoyment (Clarkson 46 NY 297). Iiife tenant and remaindermen: of foreclosed premises (Fosdick 38 AD 608, 56 NYS 942). Uechanlca' lienholder: (Crombie 19 AbNC 312); lien valid at time of sale, and at time of making application for surplus, notwith- standing provision in mechanics' lien law declaring liens shall " in all cases " cease at the expiration of one year (Emigrand Ind Sav Bk 75 NY 127). Owner of equity of redemption: (Raynor 52 NY 579; Mechanics' Sav Bk 83 Hun 282, 31 NYS 921; Germania Sav Bk 28 AbNC 81, 18 NYS 709). Purchaser under prior sale: later set aside, for improvements made and taxes paid by him during his occupancy (Wood 21 StR 764, 4 NYS 678). "Widow: of owner of equity of redemption for her dower (Emigrant Ind Sav Bk 41 AD 523, 58 NYS 693; Matthews 45 Barb 69; Blydenborgh 13 How 289; Matthew 4 Keyes 526, SC 17 AbP 256). Wife of mortgagor: for value of inchoate dower (Citizens Sav Bk 26 Mis 67, 56 NYS 548; Blydenborgh 13 How 289; NY Life Ins Co 19 AbNC 92, 14 Daly 318), where she unites with husband in conveying the premises ('Blmendorf 4 Lans 393). ISSUES BEFEREE IXAV FBOPEBIiY TTX. VESTIQATE AND SETEBIUNE — Accident or mistake: in Insertion of a cer- tain provision in mortgage (Wilcox 36 Mis 351, 73 NYS 587, afd 71 AD 402; Tator 20 Hun 131). Contested claims: ('Union Dime Sav Insti- tution 4 Hun 657). Damages: occasioned lessee by termination of lease by foreclosure (Ely 45 Mis 255, 92 NYS 160). Equitable claims: not matured into liens (•King 10 How 333). Forfeiture deposit: by purchaser at previous sale, ownership of (Richardson 37 Mis 33, 74 NYS 771). loaches: by claimant junior mortgagee in filing proof of loss for insurance by rea- son of which insurance was uncollectible (McRoberts 12 CivP 140). Privities; between lessor and lessee of prem- ises sold (Burr 43 NY 462, afg 52 Barb 377). Satisfaction or discharge; of lien by pay- ment or dealings of parties (Kingsland 39 Hun 602). Set-off; for use and occupation of premises (Schueler 73 Mis 25, 130 NYS 600). Validity of conveyances: attacked as fraudu- lent (Bergen 79 NY 146, rvg 18 Hun 355; Halsted 55 NY 442; Wolfers 72 Hun 637, 25 NYS 374; Rogers 23 Hun 424; 'Husted 17 AbP 137; Mut L Ins Co 22 "WkD 6). irregular (Frost 30 NY 428; Irving Sav Inst 100 AD 460, 91 NYS 446; Jermain 29 Mis 258, 61 NYS 700; 'Husted 17 AbP 137; 'Miller 1 LawB 50), or usurious (Mut Ins 47 Barb 618). Validity of judgment lien; attacked for fraud (Kirby 31 NY 417), or irregularity (Snyder 11 Paige 71). Value; of inchoate right of dower (Fleck 131 AD 248, 115 NYS 652). CONDUCT OF TBIAi; PBOPEB — Admission of testimony; of witness in for- mer reference in new proceeding, where witness is absent from state and not dead (•Mut L Ins Co 19 StR 38). BEFEBEES BEFOBT SUFFICIENT — Amount of surplus: after payment of all claimants other than owners of equity or redemption omitted ('Franklin 11 Paige 129). Fact of appearance omitted; where parties appear tho not given notice to which they were entitled (•Franklin 11 Paige 129). Facts found: not stated ('Bigelow 59 Hun 403, 13 NYS 362). Production of evidence: at hearing to show that every person entitled to notice to at- tend had been duly notified, failure to show (•Hulbert 8 Paige 651; 'Franklin 11 Paige 129)» OBJECTIONS TO BEPOBT OF BEFEBEE PBOPEB — On appeal: failure to separately state and number findings and conclusions (Greason 131 AD 868, 116 NYS 336). OBDEB AFFEAI.AB£E — Order of General Term: reversing order of Special Term, which confirmed report of referee, and ordering a new hearing before another referee ('Mut Life Ins Co 105 NY 57). FABTIES ENTITI.ED TO COSTS — Successful moving party: only (Terry 60 Mis 562, 112 NYS 450; American Mortg Co 36 Mis 253, 73 NYS 334). 195 ACTION FOR FORECLOSURE rr. 262-265 COSTS PROFEB— Extra allowance: (*McDermott 9 Hun 59; *NY Life Ins Trust Co 12 AbP 458). Extra costs: against unsuccessful claimants, where claim of successful party just and equitable, and a large amount of unneces- sary costs incurred in litigation of claim (Lawton 11 Barb 349). Seventy-five dollars: to attorney for junior mortgagee for costs and disbursement (•Wellington 5 WkD 104). Trial fee: (•BIwell 43 How 108) COSTS AND DISBURSEMENT FROFERX.V CEARQED TO STTRF^VS FUNS — (Oppenheimer 3 Hun 30). RUI;e CITED — But not appUea; (Toch 8 AD 299, 40 NTS Rule 263. Proceedings before referee. The owner of the equity of redemption, or any party who has appeared in the action or any person who has filed a notice of claim with the clerk previous to the entry of the order of reference, or who shall thereafter file such notice with the clerk and serve a certified copy thereof on the referee, shall be entitled to a notice to attend on such reference and to the usual notices of subsequent proceedings relative to such surplus. If such owner, party or claimant, has not appeared wor made his claim by an attorney, the notice may be served by depositing the same in the post-office, directed to the claimant at his place of residence as §tated in his notice of claim and on the owner in such manner as the court may direct. Notice of the hearing before the referee 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. EDITORIAL NOTES — Source: General Rule of Practice 64, last three sentences modified. Formerly Equity Rule 93; Rule 51 of 1849; Rule 48 of 1852; Rule 76 of 1858- Rule 77 of 1871, 1874; Rule 68 of 1877; Rule 64 of 1880, 1884, 1888, 1896, 1900, 1910. 1913. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADl^INE in capitals. For illustration see Rule 1. NOTICE TO ATTEND SUFFICIENT — Nunc pro tunc: where claim is filed inter- vening the application and the order of refrence (Schieck 44 Mis 425, 90 NTS 36). NOTICE OF SUBSEQUENT FROCEEDINGS NECESSARY — motion to confirm referee's report: relat- ing to surplus (Van Voast 32 AD 116, 52 NTS 934). Rule 264. When surplus to be paid into surrogate's court. // real property or an interest in real property which is liable to be disposed of as prescribed in article thirteen of the surrogate's court act, be sold to satisfy a mortgage or other lien thereon, which mortgage or lien accrued during the decedent's lifetime, the surplus money must be paid into the surrogate's court having jurisdiction to issue letters testamentary or of administration upon the estate of the decedent, in the following eases : 1. // eighteen months have not elapsed since the date when letters testamentary or of administration were first issued. 2. If a proceeding for a judicial settlement of the accounts of such executor or administrator has been commenced within eighteen months from the date of the issue of such letters and is still pending. 3. // no such letters have been issued and two years have not elapsed since the death of the decedent. EDITORIAIk NOTES — Source: Surrogate's Court Act, § 250, ex- cept last paragraph, as revised from CCP § 1633, as revised from 2 RS 199, pt 3, c. 1. tit 2, §§ 159, last clause, 160, as amended by D 1908, c 294, L 1915, c 643. Text In italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADI.INE in capitals. For illustration see Rule 1. CONSTITUTIONAI^ITV UFHEIiD — (Stilwell 139 NT 337; Ellis 110 Mis 192, 179 NTS 8'7-3). FAYKENT INTO SURROGATE'S COURT FROFEB — (Zahrt 94 NT 605; Bernstein 58 Mis 115, 110 NTS 473; Knapp 25 Mis 133, 54 NTS 927). Froperty sold on foreclosure; liable to be disposed of to satisfy debts of decedent mortgagor upon whose estate letters testa- mentary had been issued within 4 years before the sale, old rule (Powell 88 AD 228, 85 NTS 452; Callaghan 52 StR 537, 23 NTS 378). On ex parte order: at instance of creditor of deceased not a party to action, where there were actions pending to forclosure a second mortgage and severel mechanics' liens, the holders thereof being party to the original foreclosure action ('Washington Life Ins Co 79 AD 160, 79 NTS 610). ■Where not rectuired: for payment of debts (■"Dunning 61 NT 497). UNDER FORMER STATUTES — Chapter 658 of laws of 1867: as amended by ch' 170 of laws of 1870 did not include sur- plus arising out of sale made in pur- suance of a judgment of the court but in terms, 1»he direction given controlled only the conduct of a person or corporation making a mortgage sale (German Sav Bk 25 Hun 409). Rule 265. Referee to be selected by court. The referee to be appointed in fore- closure cases to compute the amount due or to sell mortgaged premises or to report on application for surplus moneys shall be selected by the court, and the court shall rr. 295-267 CLEVENOER'S RULES OF CIVIL PRACTICE 196 not appoint as such referee a person nominated by a party to the action or his counsel. EDITORIAXi NOTES — Source: General Rule of Practice 61, last sentence, combined with General Rule of Practice 64, second sentence. General Rule 61 was formerly Equity Rule 92; Rule 50 of 1849; Rule 47 of 1852; Rule 72 of 1858; Rule 73 of 1871, 1874; Rule 64 of 1877; Rule 61 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. General Rule 64 was formerly Equity Rule 93; Rule 51 of 1849; Rule 48 of 1852; Rule 76 of 1858; Rule 77 of 1871, 1874;. Rule 68 of 1877; Rule 64 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text In ItallCB is new matter, inserted June 17, 1921. Star (*) means read Not into EEADI^im: in capitals. For Illustration see Rule 1. Eule 266. Mortgage and assignments to be filed or recorded before conveyance. Whenever a sheriff or referee sells mortgaged premises under a decree, order or judg- ment 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; and which case, if it has not been done, it shall be the duity 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 allowed in the taxation of costs; and, if filed with the clerk, he shall enter in the minutes, the filing of such mortgage and assignments, and the time of filing. But this rule shall not extend to any case where the mortgage or assignments appear, by the pleadings or proof in the suit commenced thereon, to have been lost or destroyed. of 1880, 1884, 1888, 1896, 1900, 1910, 1913. ESITOBIAI^ NOTES— Sonrce: General Rule of Practice 63. For- merly Equity Rule 94; Rule 52 of 1849; Rule 49 of 1852; Rule 75 of 1858; Rule 76 of 1871, 1874; Rule 67 of 1877; Rule 63 of Text In italics is new matter, inserted June 17, 1921. Star (•) m«ins read Not into HEADI^INE in capitals. For illustration see Rule 1. Rule 267. Application to personal property liens. The provisions of this title, in so far as they may be applicable, shall apply in actions to foreclose a mortgage or other lien on chattels or other personal property. ESITOBIAi; NOTES — Source: new. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into KEASKim: in capitals. IJ'or illustration see Rule 1. 197 ACTION TO RECOVER CHATTEL IX. 270, 271 TITLE 32 ACTION TO EECOVER CHATTEL Rule 270. How title to cbattel pleaded. 271. Pleading wrongful taking or detention. 272. Answer that property was distrained doing damage. 2i73. Replevin papers to be furnished court or referee. Civil Practice Act references: Action to re- cover a chattel, CPA §§ 1089-1131; When action to recover a cliattel cannot be main- tained, CPA § 1089; Subsequent action to recover chattel cannot be maintained after judgment against the plaintiff, CPA § 1090; Action to recover a chattel by an assignee, CPA § 1091; Answer of title in third per- son, CPA § 1093; Replevin papers to be made part of judgment-roll, CPA § 115. Rule 270. How title to chattel pleaded. An allegation in a pleading interposed by either party to the effect that the party pleading, or a third person, was, at the time when the action was commenced, or the chattel was replevied, as the ease may be, the owner of the chattel, or that it was then his property, is a sufficient statement of title, unless the right of action or defense rests on a right of possession by virtue of a special property, in which case the pleading must set forth the facts upon which the special property depends, so as to show that at the time when the action was com- menced, or the chattel was replevied, as the ease may be, the party pleading, or the third person, was entitled to the possession. ESITORIA]^ NOTES — Sonrce: CCP § 1720 verbatim, except "on" read "upon" and "of the chattel" omitted. Text in Italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. A^X^ECATIOIT OF OWNERSHIP SUPPI- CIENT— A^eement: with infant defendant (*Pakas 13 Daly 227). Assignment; of chattel to plaintiff by owner, consideration therefor not alleged (Vogel 1 AbP 176). Entitled to the possession of: the goods (•Vanderburgh 8 Barb 217). Execution and delivery: of chattel mortgage to plaintiff by third party, by the terms of which plaintiff had become entitled to pos- session of the property ('Gardner 1 HowNS 272). General averment: of absolute ownership (Newell Univ Mill Co 115 NY 170, rvg 51 Hun 453; Malcolm 89 NY 156, afg 46 Supr 222; Wagman 163 AD 68, 148 NYS 471; Scognamillo 157 AD 428, 142 NYS 382; Gregory 14 NYS 891; Siedenbach 36 Hun 211, afd 11 NY 560; Maxwell 7 How 236; Davis 6 Duer 254; Heine 2 Duer 318; Bar- clay 6 Lans 25). Kiglit to immediate possession: (Saratoga Gas & El Co 55 Hun 251, 7 NYS 844, afd 121 NT 677). Said plaintiffs were the owners thereof: as hereinbefore stated where such allegation does not relate to the time of the com- mencement of the action (*Burdick 94 AD 532, 88 NYS 13); where the allegations of title referred to do not as a matter of law show that plaintiflEs are the owners or en- titled to the possession of the chattel (•Burdick 94 AD 532, 88 NTS 13). Sale and delivery of ifoods: to defendants by plaintiff (Morrison 4 CivP 437). TaUnsr of foods: by defendant out of pos- session of plaintiff (*Bond 3 Barb 304). The property of him the said plaintiff: "by virtue of several attachments " duly issued by a justice of the peace ('Vanderburgh 8 Barb 217). Wrongrfnl detention: from plaintiff by de- fendant of the goods and chattels ('Scho- fleld 49 NY 259; 'Gardner 1 HowNS 272), of the goods and chattels " of the plaintiff " (Simmons 55 NT 671, afg 35 Supr 554; Levin 42 NT 251; Van Der Minden 36 Supr 66), or of which plaintiff was the owner (Kerner 14 NYS 787), or lawfully pos- sessed of (Seifret 13 CivP 321). AXIiECfATION OP SPECIAJ^ PROFEBT-? SUPPICIENT— By lessor: having right to take possession under lease, if he deemed himself unsafe, or thought the property not well cared for, where he fails to allege either contingency as a fact, tho he avers demand made for possession was put on such grounds ('Hathaway 1 T&C 386). Chattel mortg-ape: facts showing right to possession thereunder at time of commence- ment of action (Crutts 84 Mis 192, 145 NYS 850); execution and delivery to plaintiff by third party by terms of which plaintiff had become entitled to possession of the property (Gardner 1 HowNS 272). Sale and delivery of goods: together with allegation that sale was induced by fraud (Morrison 4 CivP 437). Special property therein, to wit; lien for unpaid purchase money in the absence of motion to make more definite and certain, and it affirmatively appearing that defend- ants were neither harmed or misled by omission to set forth all the facts out of which the special property arose (TuthiU 124 NT 148). INCONSISTENT AI^ZiEGATIONS — Ownership of chattel: and lien for unpaid purchase money (Tuthill 124 NY 148). Ownership of horse: and lien on same for expenses (Hudson 83 NY 552, rvg 7 AbNC 524). AMENBmENT PERIOITTES— Allegation of ownership: in replevin action in discretion of court, to supply (Thompson 29 Hun 256). STTRPI^TrSAaE — Cirotunstanoes : under which chattel was de- livered to defendant where absolute owner- ship and right to possession in alleged (Scognamillo 157 AD 428, 142 NTS 382). Eule 271. Pleading wrongful taking or detention. If, in an action to recover a chattel, the complaint contain a sufficient statement of the plaintiff's title, a general rr. 271-273 CLEVENOMli'S RULES OF CIVIL PRACTICE 19& allegation that the defendant -wrongfully took the chattel, is sufficient without setting forth the facts showing that the taking was wrongfud. If the taking of the chattel is not complained of, but the action is founded on its wrongful detention, the complaint must set forth the facts showing that the detention was wrongfuL EDirOBIA^ HOTES — Sources CCP § 1721, except words "in an action to recover a chattel," taken from CCP § 1890. CCP § 1721 revised from 2 RS 528, pt 3, c 8, tit 12, § 36. Text in italics is new matter, inserted June 17, 1921. Star (») means read Not Into ESADI^UTI: in capitals. For Illustration see Rule 1. AI^I^EG-ATION' OF WBOHG-FUI^ TAKHTO SUFFICIENT — Bare allegation of wrongfxvl taking: (Hud- son 83 NY 552, rvg 7 AbNC 324; Crutts 8i Mis 192, 145 NYS 860; Vogel 1 AbP 176). Defendant 1t)ecame wrongfully possessed: of chattel (Banfleld 45 Supr 428). Defendant "toolc" property of plaintiff; "and unjustly detains the same" (Childs 7 Barb 370). Defendant " took the property from plain- tiffs"; for the value of which judgment was demanded (Moses 35 Hun 560). Seizure "by defendant sheriff: under execu- tion of property claimed to be exempt with- out stating facts bringing such property within any statutory exemption (•Spalding 3 How 297). PACTS SHOWIKG- WBOErGFUIi DETEN- TION NECESSABV — Action -by seller: against transferee of buyer to recover goods after rescission on the ground that transferee took with knowledge that plaintiff was Induced to sell by fraudulent representations of buyer (*Gowing 30 Mis 593, 62 NYS 797). Defendant received property: from one al- leged to have wrongfully taken It from plaintiff who avers he is the owner and entitled to possession (*Milligan 34 Mis 55, 68 NYS 744; •Barney 63 How 471; •Pierce 6 Hill 613). FACTS SUFFICIENT TO SHOW WBONQ- FUH DETENTION — Failure liy defendant: on demand to obtain and return to plaintiff property delivered by defendant to third persons pursuant to an agreement between plaintiff and de- fendant (•Nat. Steamship Co 122 NT 461). mere naked a/llegation: of wrongful deten- tion without averment of right or title in plaintiff or of any demand upon defendant and refusal by him to deliver (•Scofield 49 NY 259; *Davenport Glucose Mfg Co 31 Hun 563; 'Selfert IJ ClvP 321). Plaintiff's ownership and right to jiOBses- sion: and refusal of defendant to deliver upon demand (Griffin 101 NY 348; Goodwin 99 NY 149: Till 38 NY 161; Wagman 163 AD 68, 148 NYS 471; Rogers 67 AD 130, 74 NYS 390; Desbecker 42 AD 455, 59 NYS 438, afd 166 NY 625; S'ommer 9 Mis 720, 29 NYS 602; Van Dyke 46 StR 4'55, 19 NYS 650; Scofield 19 NYS 225; Siedenbach 36 Hun 211, afd 111 NY 560; Chapln 31 Hun 529; Whltcomb 14 Hun 335; Bliss 32 Barb 322; Woodruff 25 Barb 505; Segelke 6 StR 682; Brown 21 How 190; Blssell 21 How 130; Sheldon 11 How 11; Dows 3 How 377; Townsend 3 AbP 325). Refusal to deliver: on demand not alleged, prior to code provision (Simser 56 Barb 395). Kight to possession: without averment of demand and refusal to deliver where defendant lawfully came into possession (•Sluyter 37 How 109). Seizure of property: by defendant under an attachment before plaintiff became entitled to Its possession without showing that attachment was void or Irregular (*Falr- banks 2 Duer 349). BVIiE INAFFI^ICABKE — Conversion of personal property: action to recover damages for (Barry 48 Hun 449, afd 111 NY 684; Bradley 3 HowNS 118). Detention of chattel: procured by sale fraud- ulently Induced' (See Davenport Glucose Mfg Co 31 Hun 563). AMENDMENT FE»]VIITTED — Wrongful taking: to show (Simmons 55 NT 671, afg 35 Supr 554). Eiile.272. Answer that property was distrained doing damage. //, in an action to recover a chattel, the defence be that a chattel, to recover which the action is brought, was distrained doing damage, an allegation that the defendant, or the person by whose command he acted, was then lawfully possessed of the real property, and that the chattel was distrained while it was doing damage thereow^ is sufficient, without setting forth the title to the real property, _ EDITOBIAI. NOTES — Source: CCP § 1724, except words "in an action to recover a chattel " taken from CCP § 1690. OOP § 1724 revised from CP § 166. and 2 RS 528, pt 3, c 8, tit 12, § 37. Test in Italics is new matter. Inserted June 17, 1921. Star C) means read Not Into HEADIiINB in capitals. For illustration see Rule 1. Rule 273. Replevin papers to be furnished court or referee. A copy of the plain- tiff's affidavit, with the accompanying requisition and the return of the sheriff, must be furnished to the court or the referee on the trial of an issue of fact with a copy of the summons and of the pleadings. EDITOBIAi; NOTES — Source: CCP § 1717, last clause. Text in italics Is new matter. Inserted June 17, 1921. Star (*) means read Not into KBADIiINE In capitals. For Illustration see Rule 1. AFFIDAVIT FART OF JUDGMENT BOl^I^— Considered on appeal: tho not formally put in evidence (Martin 119 NT 298; Novell 49 Hun 489, 2 NYS 529). BUI^E CITED — But not applied: (Corn Exchange Bank 102 NY 307). 199 MATRIMONIAL AGTIONB rr. 275-277 separation, CPA §§ 1161-1165; Matrimonial actions, provisions applicable to two or more, CPA §§ 1166-1176. TITLE 33 MATRIMONIAL ACTIONS Rule 275. Proof required for judgment by default in actions for annulment of marriage. 276. Order allowing next friend to maintain action. 277. Proof required on default. 278. Information as to details of matrimonial actions. 279. Pleading arid trial of issue of illegitimacy of children. 280. Complaint in action for separation. 281. Reference in matrimonial action. 282. Reference on default not permitted in action to annul a marriage or for divorce or separation. 283. Judgment declaring marriage void or granting a divorce not to be liy default; judgment to ibe entered by court. EDITOSIAI^ NOTES — Civil Practice Act references: Action to an- nul a marriage. CPA §§ 1132-1146; Action for a divorce, CPA §§ 1147-1160; Action for Eule 275. Proof rectuired for judgment by default in actions for annulment of marriage. Before judgment by default shall be granted in an action to annul a marriage on any of the grounds stated in sections eleven hundred and thirty-three, eleven hundred and thirty-seven, or eleven hundred and thirty-nine of the civil practice act, the plaintiff must prove that there has been no such cohabitation between the parties as by the said sections uwuld bar a judgment for annulment of the marriage, except that in an action under said section eleven hundred and thirty-seven the plain- tiff may prove instead that the lunacy still continues. 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 marriage 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 plaintifE was restored to his reason." XSrrOBIAI. NOTES — Source: General Eule of Practice 73, rewrit- ten. Formerly Equity Rule 113; Rule 69 of 1849; Rule 65 of 1852; Rule 87 of 1858; Rule 88 of 1871, 1874: Rule 79 of 1877; Rule 74 of 1880, 1884, 1888; Rule 73 of 1896, 1900, 1910, 1913. General Rule 73 read: "Before judgment by default shall be granted to 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 co- habited 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 plain- tiff's consent was obtained by force or Text In Italics is new matter, inserted June 17, 1921. Civil Practice Act references: Proof required for judgment by default in action to annul a marriage, CPA 1143. Star (•) means read Wot into HEADIiUTE in capitals. For illustration see Rule 1. Rule 276. Order allowing next friend to maintain action. An order allowing a person to. maintain an action to annid a marriage as the next friend of an infant, or as the next friend of an idiot or lunatic, may be granted by the court, in its discretion, Avithout notice, or on notice to such persons and in such manner as it deems proper. Action to annul marriage by next friend of idiot or lunatic, CPA § 1138. Star (*) means read Not into SEAD^INE EDirOBIAI^ NOTES — Source: CCP § 1755, first sentence. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Action where party under age of consent, CPA § 1133; in capitals. For illustration see Rule 1. RUI^E CITED — But not applied: (Becker 58 AD 374, 69 NTS 75; Phillips 63 Mis 520, 117 NYS 62'5). Bule 277. Proof rectuired on default. In an action for a divorce, unless it be averred in the complaint, (1) that the adultery charged was committed without the consent, connivance, privity or procurement of the plaintiff; (2) that five years have not elapsed since the discovery of the fact that suich adultery had been committed, and that the plaintiff has not voluntarily cohabited with the defendant since such dis- covery; (3) 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 such adulterous intercourse was dis- covered by the plaintiff; and (4) the complaint containing such averments be verified by the oath of the plaintiff; judgment shall not be rendered for the relief demanded until the plaintiff's affidavit be produced stating the above facts. liDITORIAI. NOTES— Source: General Rule of Practice 72, second paragraph. Formerly Equity Rules 111 and 112; Rule 68 of 1849; Rule 64 of 1852; Rule 86 of 1858; Rule 87 of 1871, 1874; Rule 88 of 1877; Rule 73 of 1880, 1884. 1888; Rule 72 of 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. rr. 277-280 CLEVENGER'S RULES OF CIVIL PRACTICE 200 connivance with subsequent acts (Mattison 60 Mis 573, 113 NYS 1024). DEFAtriiT JUDG-mEITT GRANTED — Eleven years: after marriage in case of im- potence ('McNair 68 lilis 570, 125 NYS 191). Proof; doubtful, uncertain or unsatisfactory (•Moore 14 WltD 255). Ten years: after insufficient information but within five years of locatingr defendant and getting evidence (Aclcerman 123 AD 750, 108 NYS 534). FI^AINTIFF COBIFETEH'T — Condonation: to disprove (Biers 74 Mis 564, 132 NYiS- 507, rev 156 AD 409, 142 NYS 128); in contested case ('Biers 1:56 AD 409, 142 NYS 128. rev 74 Mis 564, 132 NYS 509). BXri^E AFFI^ICABI^E — Iiitigated cases: ('McCarthy 143 NT 235, 3S NE 288; 'Biers 156 AD 409, 142 NTS 128; •Freeman 126 AD 601, 110 NYS 686; 'Acker- man 123 AD 750, 108 NYS 534); averments raise no issue in (Lowenthal 157 NT 236, 51 NE 995; Parace 61 How 61). cavil Practice Act references: Proof in ac- tion for divorce, CPA § 1150. Star (') means read Not into HEADZiINE in capitals. For illustration see Rule 1. AVERMENT REQUIRED — Netratlviner: adultery of plaintiff ('Thomp- son 127 AD 296, I'll NYS 426). AVERIiIENTS SUFFICIENT — Five years: have not elapsed since plaintiff discovered that act had been committed without his consent, connivance or procure- ment ('Myers 41 Barb 114). COMF^AUTT VERIFIED OR PLAINTIFF'S AFFIDAVIT — Affidavit: averments In complaint are for purpose of avoiding necessity of, in case of default (Liowenthal 157 NT 236, 61 NE 995). Oral proof: not required (Evans 27 Mis 10, 57 NTS 274). Prima facie evidence: and burden shifted to defendant (Farace 61 How 61). CONSENT OR CONNIVANCE OF PI^AIN- TIFF — A'bandoniuent: by plaintiff not consent to or Rule 278. Infonnation as to details of matrimonial actions. An ofi&cer of a court with whom the proceedings in an action to annul a marriage or for divorce or separa- tion are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party who had appeared in the cause, except by order of the court. // the evidence on the trial of such an action be such that public interest requires that the examination of the witnesses should not be public, the court or referee may exclude all persons from the room except the parties to the action and their counsel, and the witnesses, and in such case may order the evidence, when filed with the clerk, sealed up, to be exhibited only to the parties to the action or some one interested, on order of the court. EDITORIAI^ NOTES — Sonrce: first paragraph is Genral Rule of Practice 76, third sentence; last paragraph is General of Practice 72, last sentence. General Rule 76 was formerly Rule 118 of 1847; Rule 76 of 1849; Rule 70 of 1852; Rule 91 of 1858; Rule 92 of 1871, 1874; Rule Rule 279. Pleading and trial of issue of illegitimacy of children. In an action 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 made distinctly in the complaint. On default, proofs shall be taken respecting the question of legitimacy as well as on the other matters stated in the complaint, and if the issud be tried by a jury, an issue on the question of the legitimacy of the children shall be awarded and tried at the same time. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Legitimacy of children in action for divorce by husband, CPA § 1157. Btar (') means read Not into READIiINE in capitals. For illustration see Rule 1. 83 of 1877; Rule 77 of 1880, 1884, 1888; Rule 76 of 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Star (') means read Not into SEADLINE in capitals. For illustration see Rule 1. EDITORIAI. NOTES — Source: General Rule of Practice 75. For- merly Equity Rule 117; Rule 73 of 1849; Rule 68 of 1852; Rule 90 of 1858; Rule 91 of 1871, 1874; Rule 82 of 1877; Rule 76 of 1880, 1884, 1888; Rule 75 of 1896, 1900, 1910, 1913. Rule 280. Complaint in action for separation. The complaint in an action for separation must specify particularly the nature and circumstances of the defendant's misconduct and set forth the time and place of each act complained of with reasonable certainty. EDITORIAXi NOTES — Sonrce: OCP § 1764, as revised from 2 RS 146, pt 2, c 8, tit 1, § 52, and General Rule of Practice 80 of 1880. Text in italics is new matter, inserted June 17. 1921. Civil Practice Act references: Action for separation, when maintainable, CPA § 1161. Star (') means read Not into HEADIiINE in capitals. For illustration see Rule 1. NATURE AND CIBCTrMSTANCES OF MIS- CONDUCT MUST BE SPECIFIED — Answers: rule applied to, where asking for separation (Geimer 161 NTS 415; Earle 79 NTS 613). BKLi; OF FARTICUI^ARS GRANTED — To amplify: answer (Geimer 161 NTS 415); complaint (Gruber 167 NTS 42); when pari- ticular acts relied on are specified ('Earle 79 NTS 613). MISCONDUCT SUFFICIENTIiV SPECIFIED Abandonment: ('Rebstock 144 NTS 289). Adultery: at various times with various in- dividuals ('Geimer 161 NTS 415); in di- vorce (Morrell 1 Barb 318; 'Heyde 4 Sand 692; 'Cardwell 12 Hun 92). 201 MATRIMONIAL ACTIONS rr. 280-283 Craelty: (*Wirth 184 AD 643, 172 NTS 309; Harvey 175 NTS 177; • Rebstock 144 NTS 289; Earle 79 NTS 613); absence from house, failure to furnish necessaries, and conduct undermining health of wife (Itz- kowitz 33 AD 244, 53 NTS 356); exact Ian- gauge not necessary if opposing party so advised as not to be surprised at trial (Geimer 161 NTS 415). Qeueral alleg'a.tions : only (Otton 196 AD 403, 188 NTS 255; 'Mackintosh 44 AD 118, 60 NTS 679; 'Walton 32 Barb 203). General course of misconduct: only alleged (•Gruber 167 NTS 42); plus specified acts (Gruber 167 NTS 42; Earle 79 NTS 613). Scandalous acts: not material to cause speci- fied ('Klein 34 Supr 48). Violence: acts of, against members of fam- ily, material to establish cause of conduct (Perry 1 BarbCh 516). TIME AITS FlkACE SFECIFIEB WITH BEASONABIiE CERTAINTY: SE- QUIBED — Adultery: applied to, in divorce action (Tim 16 AbNS- 39; Annonymous 17 AbP 18). Bule 281. Beference in matrimonial action. In an action to annul a marriage or for divorce or separation the court shall not order a reference to a referee nominated by either party or agreed on by the parties, nor without proof by affidavit of the service of the summons and complaint in conformity with the rules. Notice of appear- ance and retainer shall not be sufficient to excuse such proof. TIME AND PI^ACE SPECIFIED WITH, BEASONABIVE CEBTAINTY— Adultery: "places" ('Geimer 161 NTS 415); "various times" ('Geimer 161 NTS 415). Cruelty: exact dates not necessary if op- posing party so advised as not to be sur- prised at trial (Geimer 161 NTS 415; Earle 79 NTS 613); no specification of time or place ('Rebstock 144 NTS 289). SUFFI^EMENTAi; COMFIiAUTT AIDUra- FIEADING- G-RANTED — Waived: acts prior to complaint ('Cornwall 30 Hun 573). EFFECT OF RUI^E— Complaint: failing to specify acts does not state good cause of action (Rebstock 144 NTS 289). Judgment: cannot be supported by evidence of facts not specified in complaint (Wirth 184 AD 643, 172 NTS 309). Rule does not require: allegation that mis- conduct was not due to any fault of plain- tiff, which is inserted to facilitate judg- ment on default (Harvey 175 NTS 177). EDITORIAl; NOTES — Source: General Rule of Practice 72, first paragraph. Formerly Equity Rules lil and 112; Rule 68 of 1849; Rule 64 of 1852 Rule 86 of 1858; Rule 87 of 1871, 1874 Rule 88 of 1877; Rule 73 of 1880, 1884, 1888 Rule 72 of 1896, 1900, 1910, 1913. General Rule 72, first paragraph, read: "When an action is brought to obtain a divorce or separation, or to declare a marriage con- tract void, the court shall in no case order the reference to a referee nominated by either part nor to a referee agreed upon by the parties, nor without proof by affi- davit conformable to the rules relating to the manner and proof of the service of the summons and complaint. Notice of appear- ance and retainer shall not be sufficient to excuse such proof." Text In italics is new matter, inserted June 17, 1921. Star (') means read Not into HEADLINE in capitals. For illustration see Rule 1. EFFECT OF ERRONEOUS APPOINT- MENT — All proceedings void; under consent to refer to parties' referee instead of consent to a reference and new referee cannot be ap- pointed (Pratt 2 AD 534, 38 NTS 26). Confirmation: of report denied (White 66 Mis 592, 123 NTS 1082; Pratt 2 AD 534, 38 NTS 26). Order based on proper consent: to general reference valid, but modified by striking name of referee ('Ives 80 Hun 136, 29 NTS 1053; Fullmer 6 WkD 42). PROOF OF SERVICE BY AFFIDAVIT RE- QUIRED — Confirmation: of referee's report may be refused on grounds of absence of proof (Sullivan 41 Supr 519, 62 How 453). Excused: by serving of answer, consent to reference and proceeding before referee ('Freeman 126 AD 601, 110 NTS 686). REASON FOR RUI^E— Collusion: to prevent (Toung 38 Mis 109, 77 NTS 94; Pratt 2 AD 534, 38 NTS 26; Ives 80 Hun 136, 29 NTS 1053). REFEREE A(tREED ON BY PARTIES FOR- BIDDEN — Divorce: (White 66 Mis 592, 123 NTS 1082; Toung 38 Mis 109, 77 NTS 94; Ives 80 Hun 136, 29 NYS 1053). Separation: (Pratt 2 AD 534, 38 NTS 26). ERRONEOUS APPOINTMENT WAIVED — Failure to raise question: before trial ('Ives 80 Hun 136, 29 NTS 1053; Toung 38 Mis 109, 77 NTS 94; Fullmer 6 WkD 42). Rule 282. Reference on default not permitted in action to annul a marriage or for divorce or separation. In an action for a divorce, or separation, or to annul a marriage, where the defendant fails to answer, no reference shall be granted to take proof of the facts stated in the complaint. Before a judgment shall be granted, the proof of such facts must be made in open court and a copy of the evidence taken before the court shall be written ouit and filed with the judgment-roll. EDITORIAL NOTES— Source: General Rule of Practice 72, third paragraph, first sentence; supersedes Gen- eral Rule of Practice 76, second sentence. General Rule 72 was formerly Equity Rules 111 and 112; Rule 68 of 1849; Rule 64 of 1852; Rule 86 of 1858; Rule 87 of 1871, 1874; Rule 88 of 1877; Rule 73 of 1880, 1884, 1888; Rule 72 of 1896, 1900, 1910, 1913. General Rule 76 was formerly Rule 118 , of 1847; Rule 75 of 1849; Rule 70 of 1852; Rule 91 of 1858; Rule 92 of 1871, 1874; Rule 83 of 1877; Rule 77 of 1880, 1884, 1888; Rule 76 of 1896, 1900, 1910, 1913. ' Text in italics is new matter, inserted June 17. 1921. Civil Practice Act references: Proof re- quired for Judgment by default in action to annul a marriage, CPA § 1143; Judg- ment in matrimonial action must be ren- dered by court, CPA § 1174. Star (') means read Not into EEADILINB in capitals. For illustration see Rule 1. Rule 283. Judgment declaring marriage void or granting a divorce not to be by default; judgment to be entered by court. No judgment annulling a marriage con- tract, or granting a divorce, or for a separation, shall be made of course by the default r. 283 OLEVENGER'8 RULES OF CIVIL PRACTICE 202 of the defendant, or in consequence of any neglect to appear at the hearing of the cause, or by consent. No judgment in an action for a divorce shall be entered except by special direction of the court. ESITOBI&I^ NOTES — Source: first paragraph is General Rule of Practice 76, first sentence; second para- graph is General Rule of Practice 76, last paragraph. Formerly Rule 118 of 1847; Rule 75 of 1849: Rule 70 of 1852; Rule 91 of 1868; Rule 92 of 1871, 1874; Rule 83 of 1877; Rule 77 of 1880, 1884, 1888; Rule 76 of 1896, 1900, 1910, 1913. Text In ItaUcB is new matter, inserted June 17, 1921. Civil Practice Act references: Proof required for judgment by default in action to annul a marriage, CPA § 1143; Proof in action for divorce, CPA § 1150; Judgment in ma- trimonial action must be rendered by court, CPA § 1174. Star (•) means read ITot into EEASZiIHE in capitals. For illustration see Rule 1. SEASON'S roR Biri^E — Collusion: to prevent (Boyer 129 AD 647, 114 NYS 15; Blott 47 How 90; Schroeter 23 Hun 230; McCleary 30 Hun 164). Divorce properly ordered: to judicially as- certain that (Goldner 49 AD 395, 63 NYS 431). Failure of proof: to prevent divorce where (Blott 47 How 90). Interests of parties: to guard (Gorham 40 AD 664, 58 NYS 50). Irregularity or fraud: to prevent (Schroeter 23 Hun 230). Fu1>Iic interests: in marriage relation, to protect (Gorham 40 AD 564, 58 NYS 50; Sullivan 41 Supr 519, 52 How 453; McCleary 30 Hun 154; Blott 47 How 90). aBOxriTDs TO REFtrsx: coNrianiATioN OF REFEREE'S REPORT SUFFICIENT — Absence of: findings of facts warranting form of judgment (Blott 47 How 90); proof as to service of summons (Sullivan 41 Supr 519, 52 How 453). Collusion: (Galloway 92 AD 300, 86 NYS 1078; Goldner 49 AD 395, 63 NYS 431; Gorham 40 AD 564, 58 NYS 50; Ross 31 Hun 140). Condonation: evidence of (Harding 43 Supr 27). Confession: of defendant corroborated suffi- ciently to remove suspicion of ('Madge 42 Hun 524). Failure of evidence: to support findings (Perkins 130 AD 193, 114 NYS 960; Gor- ham 40 AD 564, 58 NYS SO; Reynolds 33 AD 625, 53 NYS 135; 'Ryerson 55 Hun 191, 7 NYS 726; Matthews 53 Hun 246, 6 NYS 589; Hartman 9 StR 848; Harding 43 Supr 27). Order of reference: "to take proof and re- port" (Sullivan 41 Supr i519, 52 How 453), to hear and report without specifying to determine (*McCleary 30 Hun 154). JXTDG-MENT B'ST CONSENT FORBIDDEN — Admissions: in answer no evidence of denied adultery, otherwise rule against consent evaded (Taylor 123 AD 220, 108 NYS 428). Estoppel: consent to judgment does not pre- vent party afterward raising question, as rule not made for benefit of parties, and consent cannot confer jurisdiction on court to violate rule (Boyer 129 AD 647, 114 NYS 15). Receiver: order appointing for defendant for failure to pay alimony cannot be based on consent judgment (Boyer 129 AD 647, 114 NYS 16). JTIDG-iyiENT ENTERED ONIiV BY SPECIAIi DIRECTION OF COURT — Cleric: may enter final judgment as of course if special direction included in interlocu- tory judgment, on affidavit that no order intervened (Phillips 45 Mis 232, 92 NYS 78); may enter judgment without signature of judge of court who made order directing same (Jones 71 Hun '519, 24 NYS 1031). Es parte: on referee's report without ap- plication to court set aside (Blott 47 How 90). Marriaere void: judgment that, for former marriage of defendant is within rule (Blott 47 How 90). Proof: of filing of interlocutory decision and other necessary facts necessary before final judgment will be directed by court (Phillips 45 Mis 232, 92 NYS 78). Referee's report: may be refused confirma- tion in divorce (Perkins 130 AD 193, 114 NYS 960; Galloway 92 AD 300, 86 NYS 1078; Goldner 49 AD 395, 63 NYS 431; Gorham 40 AD 564, 58 NYS 50; Reynolds 33 AD 625, 53 NYS 135; Matthews 53 Hun 246, 6 NYS 589; Sullivan 41 Supr 519, 52 How 453; Hartman 9 StR 848; Harding 43 Supr 27). Rule consistent: with CCP § 1774, that final judgment be entered "of course " after three months from filing interlocutory de- cision unless otherwise ordered (Phillips 45 Mis 232, 92 NYS 78). Special direction: for final judgment may be in interlocutory judgment (Phillips 45 Mis 232, 92 NYS 78). JUDGMENT FOB DEFAUI^T AT HEARINQ FORBIDDEN — Divorce: (Boiler 96 AD 163, 89 NYS 200). MATTERS CONSIDERED ON MOTION TO ENTER JUDGMENT — Evidence: (Perkins 130 AD 193, 114 NYS 960; Galloway 92 AD 300, 86 NYS 1078; Goldner 49 AD 395, 63 NYS 431; Reynolds 33 AD 625, 63 NYS 135; Ryerson 55 Hun 191, 7 NYS 726; Matthews 53 Hun 246, 6 NYS 689; Hartman 9 StR 848; Harding 43 Supr 27). Merits: (Galloway 92 AD 300, 86 NYS 1078; Gorham 40 AD 564, 58 NYS 50; Reynolds 33 AD 625, 63 NYS 135; *Huntley 73 Hun 261, 26 NYS 266; *Ryerson 56 Hun 191, 7 NYS 726; Matthews 53 Hun 246, 6 NYS 689; *Ross 31 Hun 140; 'Schroeter 23 Hun 230). Papers: (Goldner 49 AD 395, 63 NYS 431). Referee: irregular selection of, by consent of parties (White 66 Mis 592, 123 NYS 1082). POWERS OF COURT ON MOTION TO CON- FIRM REPORT OF REFEREE — Dismiss complaint: ('Harding 43 Supr 27; •Goldner 49 AD 395, 63 NYS 431). New trial: (Perkins 130 AD 193, 114 NYS 960); grant or deny motion only (Ryerson 65 Hun 191, 7 NYS 726). No jurisdiction: independent of statute and is limited by all restrictions in statute (Blott 47 How 90). Reference: to different referee on applica- tion of party where original reference was by consent necessary (White 138 AD 272, 122 NYS 886). Reverse; decision ('Ross 31 Hun 140); Re- port for error or irregularity on trial (•Huntley 73 Hun 261, 26 NYS 266). Review: decision (•Ross 31 Hun 140). Set aside: report and send issues to circuit for trial ('Ryerson 55 Hun 191, 7 NYS 726). Substitute another judgement: ('Perkins 130 AD 193, 114 NYS 960; 'Gorham 40 AD 564, 58 NYS 50; 'Matthews 53 Hun 246, 6 NYS 689; 'Schroeter 23 Hun 230). Vacate: order of reference ('Ross 31 Hun 140). PRACTICE ON REFUSING CONFIBMA. TION OF REFEREE'S REPORT — Report should 1>e set aside; order of refer- ence vacated and new trial ordered, not rereferred to same referee for further proof (Harding 43 Supr 27). 203 COMMITTEE OF IXCOMPETENT PERSON rr. 285-287 TITLE 34 COMMITTEE OF INCOMPETENT PERSON Rule 286. Person; how designated in proceedings for appointment of committee. 286. Petition for committee; where to be presented. 287. Contents of petition. 288. Fees and expenses of inquisition in lunacy. EDITORIAI^ HOTES— ClvU Practice' Act references: Proceeding for appointment of committee of incom- petent, powers and duties of committee, CPA §§ 1356-1384; Petition for committee, by whom made, CPA § 1359; Notice of pre- sentation of petition, CPA § 1360; Expenses of commission CPA § 1369; Costs and dis- bursements, CPA § 1373; Compensation of committee, CPA § 1376. Rule 285. Person; how designated in proceedings for appointment of committee. In all proceedings for the appointment of a committee of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause, he shall be designated " an alleged incompetent person ; " and after the appoint- ment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or imbecile shall be designated " an incompetent person." EDITORIAI^ NOTES — Source: CCP § 2320, last sentence, as revised from L 1874, c 446, tit 2, § 1, part, as amended by L 1894, c 504, L. 1895, c 946. Te:£t in italics is new matter. Inserted June 17, 1921. Star (*) means read Not into HEAD^II^E in capitals. For illustration see Rule 1. Rule 286. Petition for committee; where to be presented. Except as otherwise provided iy statute or rule for the presentation of a petition in behalf of the state in respect of an inmate of a state institution, if the application be made to the supreme court, the petition must be presented at a special term held within the judicial district, or to a justice of said court within such judicial district at chambers, where the person alleged to be incompetent resides; or if he is not a resident of the state or the place of his residence cannot be ascertained, where some of his property is situated, or the state institution is situated of which he is an inmate. EDITOBIAI^ NOTES — Source: CCP § 2323, except first sentence, as amended by L 1895, c 824. Text In italics is new matter, inserted June 17, 1921. CivU Practice Act references; Petition for committte, by whom made, CPA § 1359. Star (•) means read Not into HEASI.INE in capitals. For illustration see Rule 1. VENUE: RESIDENT — Connty: where both petitioner and alleged incompetent reside, altho latter formerly resided in county where proceeding brought (Clarkson 186 AD 575, 174 NTS 616); in district where alleged incompetent resides (BischofE 80 AD 326, 80 NTS 917); where application denied in county where both parties reside, renewal not permissible in county where incompetent formerly resided (Clarkson 186 AD 575, 174 NTS 616). Petition to supersede couunission: in county where alleged lunatic resides (Andrews 129 AD 586, 114 NYS 251). Proceeding's for appointment of new com- mittee: in district of legal residence and not temporary abode (Porter 34 AD 147, 54 NTS 654). Proceedings in county: other than legal residence of lunatic, irregular but not void (Porter 34 AD 147, 54 NTS 654). VENUE: NONRESIDENT — County: where nonresident incompetent has real property (Chaloner 215 F 867). Proceeding against nonresident incompetent: who has property in the state, constitu- tional (Paddock 204 NT 640). Rule 287. Contents of petition. The petition in such proceeding must be verified by the petitioner, or by his attorney, and must state facts shoioing a ease specified in article eighty-one of the civil practice act, or be accompanied with proof, by afldavit, of such facts, and: 1. It shall set forth the names and residences of the husband or wife, if any, and of the next of kin and heirs, of the person alleged to be incompetent, as far as the same are known to the petitioner, or can be ascertained by him with reasonable diligence. 2. State the probable value of the property possessed and owned by the alleged incompetent person, and what property has been conveyed during said alleged incom- petency, and to whom, and its value and what consideration was paid for it, if any, or was agreed to be paid. EDITORIAI. NOTES— Source: CCP § 2325, first three sentences. CCP § 2325 amended by L 1891, c 263. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Petition for committee, by whom made, CP A § 1359. Star (*) means read Not into KEADIiINE in capitals. For Illustration see Rule 1. r. 288 OLEVENGER'S RULES OF CIVIL PRACTICE 204 Eule 288. Fees and expenses of inc[uisition in lunacy. On the execution of a cora- mission of lunacy, the commissioners, for every day they are employed necessarily 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 suth commissioners. Where the costs and expenses exceed two hundred and fifty dollars, 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, on notice to all parties who have appeared in such proceedings, directing such payment. EDITOBIAI^ NOTES — Source: General Rule of Practice 71. For- merly Equity Rule 110; Rule 67 of 1849; Rule 63 of 1852; Rule 85 of 1858; Rule 86 of 1871, 1874; Rule 77 of 1877; Rule 72 of 1880, 1884, 1888; Rule 71 of 1896, 1900, 1910, 1913. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Expenses of commission, CPA § 1369; Costs and dis- bursements, CPA § 1373. Star {*) means read Not into HEADIiINE in capitals. For illustration see Rule 1. AI^I^OWANCE TO COSOSISSIONER FROFER Committee's expenses: to be paid first (Van Cott 1 Paig-e 489). Exceeding' $10: for each day (•Wills 162 AD 775, 147 NYS 930). $10 per day: (Bond [Dec 7, 1921] 66 NTLJ 824). ORDERS FOB AI^IiOWAirCES PROPER — Amonnt not specified: which attorney for petitioner directed to pay to physician for services (♦Brennan 13& AD 549, 121 NTS 199). Costs; of proceeding, order directing pay- ment after lunatic's death (Dofthouse 3 AD 139, 38 NTS 39); party traversing In- quisition chargeable with (Folger 3 JohnsC 169); petitioner unsuccessfully prosecuting commission against alleged lunatic not chargeable with, if proceeding in good- faith (Giles 11 Paige 638; Brower 4 JohnsC 441); relatives of drunkard unsuccessfully pros- ecuting commission against him in good faith not chargeable with (Arnhout 1 Paige 497). Counsel fee: allowance of (*Root 8 Paige 625); requiring payment of, after lunatic's death ('Carter 128 NT 312); taxable costs of opposing commission (Conklin 8 Paige 450). Disbursements, costs and coonsel fees: order fixing after lunatic's death (Ferris 86 AD 559, 84 NYS 15). Extra allowances: granting, to alleged luna- tic upon inquisition found in her favor, against petitioner ('McAdams 19 Hun 292). Jaegal expenses of committee: requiring pay- ment of (Clapp 20 How 385). 205 INFANTS; THEIR GUARDIANSHIP AND MAINTENANCE rr. 290-292 TITLE 35 INFANTS; THEIR GUARDIANSHIP AND MAINTENANCE Rule 290. Petition for appointment. 291. Age of infant and amount of property to be ascertained by court. 292. Bond of general guardian. 293. Allowances for support of infants. 294. Application to compromise infants' claims. EDITOBIAI. NOTES— Surrogate's Court Act references: Guardians, SCA §§ 172-194; Petition for appointment of general guardian of infant, SCA §§ ITS- ITS; Power and jurisdiction of court to Rule 290. Petition for appointment. Except in cases otherwise pBovided 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 infant be under four- teen, may present a petition to the court, stating the age and residence of the infant and the name and residence of the living parents, if any, or of the person proposed or nominated as guardian, and the relationship, if any, which said person bears to the infant, and the nature, situation and value of the infant's estate. appoint guardian, SCA §§ 173-1T4; Qualifi- cation of guardian of property, SCA § 180; Surrogate may direct as to infant's main- tenance, SCA § 194. ESITOBU.]^ NOTES — Source: General Rule of Practice 52. For- merly Equity Rule 104; Rule 61 of 1849; Rule 57 of 1852; Rule 63 of 1858; Rule 64 of 1871, 1874; Rule i55 of 18T7; Rule 52 of 1880, 1884, 1888, 1896, 1900, 1910. 1913. Text lu itaJlcs is new matter, inserted June IT, 1921. Star (*) means read Not into HEAD£TNE in capitals. For Illustration see Rule 1. PETITION REQUIRED — Infant; application for, under fourteen (But- ton 8 How 99). WHO MAY PRESENT PETITION — Aunt: (Crickard 52 Mis 63, 102 NYS 440). Cousin: others standing in nearer relation to infant ("White 7 Barb 640). Father: (Camp 126 NY 377, 27 NB 799; Drowne 56 Mis 417, 107 NYS 1029). Grandfatlier: (Martin 32 AD 602, 53 NTS 186; see Crickard 52 Mis 63, 102 NYS 440); jurisdiction not having been obtained by secretly bringing child in state (*Hubbarthan father ('See Walker 54 Mis 177, 105 NTS 890). Stepfather: (McConnon 60 Mis 22, 112 NTS 590). Uncle: paternal (HoUey 1 Redf 333). Rule 291. Age of infant and amount of property to be ascertained by court. On presenting the petition, the court, by inspection or otherwise, shall 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 four- teen, shall select and name a competent and proper person as guardian. The court shall ascertain also the amount of the personal property, and the gross amount or value of the rents and profits of the real estate of the infant during his minority, and the sufSciency of the security offered by the guardian. EDITORIAI^ NOTES — Source: General Rule of Practice 53. For- merly Equity Rule 105; Rule 62 of 1849; Rule 58 of 1852; Rule 64 of 1858; Rule 65 of 1871, 1874; Rule 56 of 1877; Rule 53 Of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADl^INE in capitals. For Illustration see Rule 1. PERSONS AS G-UARDIAN PROPER — Person other than: father or deceased mother's second husband (Lee 1T6 Ad 141, 161 NYS 1100); one nominated by infant over 14 years of age (Wyckoff 6T Mis 1, 124 NTS 625). Rule 292. Bond of 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 the ward and of the 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 suffieient sureties, each of whom shall be worth the amount specified in the penalty of the bond over and above all debts. If 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 minority shall exceed twenty-five hundred dollars, 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 unim- cumbered real property, situated in this state, of the value of the penalty of the bond. The court, in its discretion, may vary the security where, from special circumstances, rr. 292-294 OLEVENOER'S RULES OF OIVIL PRACTICE 206 not covered by his -bond (Clark 23 Barb 464). SONS BEQTTIBED — Guardian; serving- without bond under CCP § 2650 (*Benson 92 Mis 509, 156 NTS 1). BOND StTFriCIEHT — Two sureties: executed by (Perkins 114 NY 359; Otto 31 AD 278, 52 NYS 773; Phillips 10 AD 128, 41 NYS 1020; Clark 23 Barb 464; Girvin 21 Hun 316). it may be foumd for tlie interest of the infant, and may direct the principal of the estate, and any part thereof to be invested in the bonds of the state of New York or of the United States, or deposited with any trust company which shall have been desig- nated as a depository for such moneys, or invested in bond and mortgage on nmin- cumbered and improved property, within this state, of at least double the value of the amount invested, to be shown to the satisfaction of the court, for the benefit of the infants, and may direct that the interest or income thereof, only, be received by the guardian. EDITORIAI^ NOTES — Source: General Rule of Practice 54. For- merly Equity Rule 102; Rule 59 of 1849; Rule 55 of 1852; Rule 65 of 1858; Rule 68 of 1871, 1874; Rule 57 of 1877; Rule 54 of 1880, 188-4, 1888, 1896, 1900, 1910, 1913. Text in italics is ne-w matter, inserted June 17, 1921. Star (*) means read Not into HEASIiINi: in capitals. For illustration see Rule 1. SCOFXI OF BOND — Costs: in proceeding to remove guardian are Rule 293. Allo-wances for support of infants. A petition for the -application of an infant's property, or any portion thereof, to the infant's support, maintenance or education, presented to the supreme court or the surrogate's court, shall set forth in detail : 1. The amount and nature of the infant's property, where situated and how invested, and his income from such property or any other source; 2. Whether or not the infant's parents are living, and, if either of them be living, all circumstances relative to his or her ability to support the infant; 3. The terms of any previous order made by any court in this state or elsewhere for the application of any portion of the infant's property, and the disposition made of any property pursuant thereto. When the petition is presented by a person other than the guardian of the property of the infant, notice shall be given to such guardian. Notice shall also be given to the father of the infant, if living, or if not, to his mother, or if neither be living, to the person ivith whom the infant resides, and to the infant himself, if he be of the age of fourteen years or upwards. Such notice shall be given in such manner and for such length of time prior to the hearing on the petition as the judge or surrogate shall direct. Test in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADIiINE in capitals. For Illustration see Rule 1. Rule 294. Application to compromise infants' claims. On any application for the approval by the court of a settlement of a cause of action belonging to an infant, the court shall require the attorney so applying to disclose his relation to the defend- ant, and whether he has become concerned in the application or its subject matter at the instance of such defendant, or has received or is to receive any compensation from such defendant and the amount thereof, or has had any part in negotiating such set- tlement; and thereupon, if the court or judge deem it necessary, a fidl examination may be had into all the facts regarding the reasonableness and propriety of such settlement. BDITORIAI^ NOTES — Source: new; see New York county Surro- gate Court Rule 13. EDITOBIAK NOTES — Source: new; see New York county Surro- gate Court Rule 22. Text in italics is new matter, inserted June 17, 1921. Star (•) means read Not into HEADI.INE in capitals. For illustration see Rule 1. 207 DISPOSITION OF REAL PROPERTY OF INFANTS rr. 295-297 TITLE 36 DISPOSITION OF REAL PROPERTY OF INFANTS OR INCOMPETENTS Rule 295. Place of application. 296. Notice of application. 297. Contents of petition. 298. Report of referee. 299. When proceeds of sale of real property of infant may be paid to general guardian. 300. Limitation on costs and fees in proceedings to dispose of real property of infant. EDITOBIAIV KOTES — ClTll Practice Act references: Proceeding for disposition of real property of infant or incompetent, CPA §§ 1385-1409; Applica- tion to dispose of real property or an in- terest therein, CPA § 1388; Who must make application, CPA § 1389: Reference to in- quire into the application, CPA § 1395; Disposition of proceeds generally, account- ing, CPA § 1403; Disposition of proceeds exceeding five hundred dollars, CPA § 1404; Payment of proceeds of sale of property of nonresident infant, CPA § 1405; Disposition of proceeds in case of death of infant or incompetent, CPA § 1408. Rule 295. Place of application. If an application be made to the supreme court to sell, convey, mortgage, release or lease the real property of an infant or incompetent, the petition must be presented at a term held within the judicial district in which the property, or a part thereof, is situated. Civil Practice Aot references: Application to dispose of real property or an interest therein, CPA § 1388. Star (*) means read ICot into SEADKINE in capitals. For illustration see Rule 1. APPI^ICATIOIT IMFBOPIiB — Denied without prejudice: (McLaughlin [Jan 10, 1922] 66 NYLJ 1248). ESITOBIA^ NOTES — Source: CCP § 2349, third sentence, as re- vised from 2 RS 194, 195, pt 3, c 1, tit 2, S§ 167, 170, 175, and 2 RS 53-55, pt 2, c 5, tit 2, §§ 11, 16, 19, 22, and from L 1864, c 417, §§ 1, 5, and L. 1850, c 37. Text in Italics is new matter, inserted June 17, 1921. Rule 296. Notice of application. If an application to sell, convey, mortgage, release or lease the real property of an incompetent aiieet the interest of an incom- petent person who has been committed to a state institution and is an inmate thereof, notice of such application must be given to the attorney-general and to the superin- tendent, acting superintendent, or state officer having jurisdiction over the institution where the incompetent person is confined. EDITORIAi; NOTES — Source: CCP § 2349, last sentence, as revised from 2 RS 194, 195, pt 3, c 1, tit 2, §§ 167, 170, 175, and 2 RS •53-55, pt 2, c 5, tit 2, §1 11, 16, 19, 22, and from L 1864, c 417, §§ 1, 5, and L, 1850, c 37. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references; Application to dispose of real property or an interest therein, CPA § 1388. Star (*) means read Not into HEADIiINE in capitals. For illustration see Rule 1 Rule 297. Contents of petition. The petition in a proceeding to sell, convey, mort- gage, release or lease the real property of an infant or incompetent must be verified and must state: 1. The name, age and residence of the infant or incompetent; 2. The grounds of the application; 3. If the application be for the purpose of paying the debts of the infant or incom- petent, or for the maintenance and necessary education of himself or his family, or substantially promoting his interests by such disposition, other than a case where the application is made for the sale of an undivided interest of the infant or incompetent person in one or more parcels of land in order to avoid an action of partition on the part of his cotenants, or for the dower of a widow therein, the particulars and value of the real and personal property, and the amount of the income of the infant or incompetent person; the disposition which has been made of his personal property; and an account of the debts or demands, if any, existing against his estate. In the case specified in this subdivision where the application is made for the sale of an undi- vided interest of the infant or incompetent person, the petition must state the par- ticulars and value of the real property in respect of which a sale is desired. 4. The name and residence of the committee or of the person proposed as the special guardian, the relationship, if any, which he bears to the infant, lunatic, idiot or habitual drunkard, and the security proposed to be given. rr. 297-299 OLEVENGER'S RULES OF CIVIL PRACTICE 208 5. Whether any previous application has and what disposition was made of the same. EDITOBIAI; NOTES Source: opening paragraph is General Rule of Practice 55 and CCP § 2350, first sen- tence; subdivisions 1 and 2 are General Rule of Practice 55, first clause; subdi- visions 2 and 3 are CCP § 2350, except first sentence; subdivisions 4 and 5 are General Rule of Practice 55, last part. General Rule 55 was formerly Equity Rule 40; Rule 41 of 1849; Rule 38 of 1852; Rule 56 of 1858; Rule 67 of 1871, 1874; Rule 58 of 1877; Rule 55 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. CCP § 2350 revised from 2 RS 53-55, pt 2, c 5, tit 2, §§ 11, 16, as amended by L 1893, c 311, and L 1910, c 235. Text In italics is new matter, inserted June 17, 1921. Civil Practice Act references: Application to dispose of real property or an interest therein, CPA § 1388. Star (•) means read Not into HSADIiINi: in capitals. For illustration see Rule 1. ACCOUNT OF DEBTS OB DEMANDS BE- QVIBED— Wlien there are none: (*Hammer Realty Co 73 Mis 135, 132 NTS 412). been made, and, if so, the time thereof, ACCOUNT OF DEBTS OB DEMANDS SUF. FICIENT — raortera^ea: unpaid and interest due and taxes unpaid (Ryder 8 NYS 421). STATEMENT OF AMOUNT OF INCOME OF INFANT OB INCOMPETENT SUF- FICIENT — Form of statement: immaterial, if It ap- pears that infant has no income or personal estate (Ryder 8 NYS 421). PETITION SUFFICIENT — Assessed value of property; ('Title Guar- antee & Trust 164 NYS 15). Ouardlau: executed by, on behalf of Infant under 14 years of age and verified by presi- dent of guardian (Hopkins 33 AD 615, 53 NYS 1051). Seventeen years of affe: petition stating that plaintiff was, it appearing that she had co- operation and advice of mother (Aldrich 48 Hun 367, 1 NYS 541). BUI^E APFI.ICABI.E— Dower: application for sale of right of (•Harrison 218 NY 556). Partition: to avoid an action of, by co- tenants (*Blanchard 33 Mis 284, 67 NYS 478). Bule 298. Report of referee. The referee appointed in a proceeding to sell, con- vey, mortgage, release or lease real property, or an interest therein, of an infant or incompetent, must report whether a sale, mortgage, release or lease of the premise.s, or any and what portion thereof, would be beneficial to the infant, lunatic, idiot or habitual drunkard, and the reasons therefor, and whether the infant, luoaatic, idiot or habitual drunkard is in absolute need of some and what portion of the proceeds of such sale, mortgage or lease, for a purpose specified in the petition, in addition to what he might earn by his own exertions. Such referee shall ascertain also and report the value of the property, or interest, to be disposed of, specifically, as to each sepa- rate lot or parcel, with the incumbrances, if any, thereon, 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. 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 interests to be disposed of, required to be ascertained and reported upon by the referee, must be proven on such reference by the testimony 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, as evidence of fact. EDITOBIAI^ NOTES — Source: General Rule of Practice 56. For- merly Equity Rule 108; Rule 65 of 1849; ■Rule 61 of 1852; Rule 67 of 1858; Rule 68 of 1871, 1874; Rule 59 of 1877; Rule 56 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Reference to inquire into the application, CPA § 1395. Rule 299. When proceeds of sale of real property of infant may be paid to gen- eral guardian. 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 necessary for his support 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. //, however, such money shall exceed the sum of five hundred dollars, the court must require the guardian to give a bond of a surety company authorized to do business in this state or a bond secured by a mortgage on improved and unincumbered real property within this state of the value of the penalty of the bond. EDITOBIAI. NOTES — Source: General Rule of Practice 59, first paragraph. Formerly Equity Rule 103; Rule 60 of 1849; Rule 56 of 18B2; Rule 70 Star (•) means read Not •into HEADLINE in capitals. For illustration see Rule 1. BEPOBT SUFFICIENT — Partition: statement necessary that situa- tion of property such- that actual, cannot be made (Walker 3 AbNC 12). Searches of title: statement that they were made (Noble 27 How 289). of 1858; Rule 71 of 1871, 1874; Rule 62 of 1877; Rule 59 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. 209 DISPOSITION OF REAL PROPERTY OF INFANTS OR INCOMPETENTS rr. 299, 300 Text In italics is new matter, inserted June 17, 1921. ClTll Practice Act references: Disposition of proceeds generally; accounting, CPA § 1403; Disposition of proceeds exceeding nve hundred dollars, CPA § 1404. Star (•) means read Not into HEASIiINE in capitals. For illustration see Rule 1. BOND REQXTISCED — AlUlo Irand not given: executrix of guardian having accounted for proceeds of sale, sur- rogate's decree thereon binding on Infant (Allen 55 AD 454, 67 NYS 97, af£ 66 AD 623, rev 171 NY 1, 63 NB 528). $500: sum exceeding (Fitting Street [.Tan 5, 1922] 66 NYLJ 1191). Proceeds of sale: paid to guardian for in- fant's support (*Allen 171 NY 1, 63 NE 528, rev 66 AD 623, aff 55 AD 454, 67 NYS 97). BOND SUPPICIENT— Improved and uniucTunlberecl real estate: re- quirement as to security on, not satisfied by bond of surety company, prior rule (•Flynn 58 Mis 628, 111 NYS 1023). Rule 300. Limitation on costs and fees in proceedings to dispose of real property of infant. If the infant's interest in the property do not exceed one thousand dollars, the whole costs, including disbursements, shall not exceed twenty-five dollars and the expense of a surety bond, if one be required, and referee's fees not exceeding ten dol- lars. // several infants be interested in the same premises as tenants in common, the application in beha,lf of all shall be joined in the same petition, although they may have several general guardians; and tliere shall be but one reference to ascertain the propriety of a sale as to all, and but one bill of costs shall be allowed. BDITORIAIi NOTES— Source: General Rule of Practice, last two sentences. Formerly Equity Rule 109; Rule 66 of 1849; Rule 62 of 1852; Rule 69 of 1858; Rule 70 of 1871, 1874; Rule 61 of 1877; Rule 58 of 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into BIBADI&INB in capitals. For illustration see Rule 1. KISTOBY— Bnle similar in temiE: to chancery Rule 161 (Molinari 82 Mis 663, 144 NYS 217). COSTS AND PEES LEBfilTBD — Exceeding' $1000: aggregate interests of in- fants, limitation of rule applies (Molinari 82 Mis 663, 144 NYS 217). Premirun for trond: allowed in addition to S25 limited by rule (Molinari 82 Mis 663, 144 NYS 217; Morrell 4 Paige 44). Individnal shares not exceeding $1000: in instalment payments by father on contract to purchase (Cornell [Feb 18, 1922] 66 NYLJ 1781). $10 over $1000: costs and disbursements of $205 disallowed (Walsh [Oct 6, 1921] $6 NYLJ 73). CLEVENOER'S RULES OF CIVIL PRACTICE 210 STATE OF NEW YORK CONVENTION TO CONSIDER AND ADOPT RULES OF CIVIL PRACTICE June 17, 1921. We, the undersigned, Alfred E. Page, Permanent Chairman, and Herbert L. Smith, Secre- tary, of the Convention to Consider and Adopt Eules of Civil Practice, pursuant to chapter nine hundred and two of the laws of nineteen hundred and twenty as amended by chapter three hundred and seventy of the laws of nineteen hundred and twenty-one, DO HEREBY CERTIFY that the foregoing Rules of Practice were adopted by such convention pursuant to such law by the affirmative votes of eight justices, constituting a majority of all the justices chosen to such convention, at a regular meeting thereof held at the Senate Chamber at the Capitol in the city of Albany on the seventeenth day of June, nineteen hundred and twenty-one; such con- vention having been regularly convened pursuant to such law on the second Tuesday of June, nineteen hundred and twenty, and regularly adjourned from time to time to that day. And we do hereby further certify that the foregoing rules were filed in the office of the Secretary of State, at the city of Albany, pursuant to said law, on the twelfth day of July, nineteen hundred and twenty-one. Given under our hands at the city of Albany, this twelfth day of July, nineteen hundred and twenty-one. ALPEED R. PAGE, Chairman. HEEBEET L. SMITH, Secretary. 211 MORTALITY TABLE AMERICAN EXPERIENCE TABLE OF MORTALITY Laws 1868, vol. 2, p. 1317. Expectation Expectation Age of life Age of life 10 48 . 72 53 18 . 79 11 48.08 54 18.09 12 47.44 55 17.40 13 46.82 56 16.72 14 46. 16 57 16.05 15 45.50 58 15.39 16 44. 85 59 14. 74 17 44. 19 60 14. 09 18 43.53 61 13.47 19 42.87 62 12. 86 20 42 . 20 63 12 . 26 21 41 . 53 64 1 1 , 68 22 40.85 65 11 . 10 23 40. 17 66 10. 54 24 39.49 67 10.00 25 38.81 68 9.48 26 38. 11 69 8.98 27 37 . 43 70 8 . 48 28 36.73 71 8.00 29 36.03 72 7.54 30 35.33 73 7. 10 31 34.62 74 6.68 32 33.92 75 6.28 33 33.21 76 5. 88 34 32.50 77 5.48 35 31. 78 78 5. 10 36 31.07 79 4.74 37 ; 30.35 80 4.38 38 29.62 81 4.04 39 28.90 82 3.71 40 28.18 83 3.39 41 27.45 84 3.08 42 26.72 85 2. 77 43 25.99 86 2.47 44 25.27 87 2. 19 45 24. 54 88 1 . 93 46 23 . 80 89 1 . 69 47 23.08 90 1.42 48 22.36 91 1.19 49 21.63 92 98 50 20. 91 93 80 51 20.20 94 64 52 19.49 95 50 CLETBNOER'S RULES OF CIVIL PRACTICE 212 Table Showing the Present Value of an Immediate Annuity on $i on a Single Life at 5% Interest "Inheritance Tax Calculations," by S. H Wolfe, New York, 1905, p. 243. Present Age value 10 16.505 11 16.461 12 16.415 13 16.366 14 16.316 15 16.263 16 16.207 17 16.149 18 16.088 19 16.024 20 15.957 21 15.886 22 15.813 23 15.736 24 15.655 25 15.570 '26 15.482 27 15.389 28 15.292 29 15.191 30 15.084 31 14.973 Present Age value 32 14.857 33 14.735 34 14.608 35 14.475 36 14.336 37 14.191 38 14.039 39 13.881 40 13.716 41 13.544 42 13.365 43 13.179 44 12.985 45 12.783 46 12,574 47 12.357 48 12.133 49 11.901 50 11.662 51 11.416 52 11.164 Present Age value 53 10.905 54 10.640 55 10,370 56 10,095 57 9.8145 58 9,5299 59 9,2413 60 8,9493 61 8.6545 62 8.3574 63 8,0588 64 7,7590 65 7,4588 66 7,1592 67 6,8607 68 6.5642 69 6.2705 70 5.9802 71 5.6942 72 6.4129 73 5.1359 Present Age value 74 4.8628 75 4.5926 76 4.3248 77 4.0586 78 3.7939 79 3.5311 80 3.2702 81 3.0135 82 2.7606 83 2.5105 84 2.2607 85 2,0098 86 1.7606 87 1.5175 88 1.2861 89 1.0670 90 0.85453 91 0.64497 92 0.44851 93 0.28761 94 0.13605 213 INDEX TO RULES OF CIVIL PRAOTIGE Affidavits INDEX TO RULES OF CIVIL PRACTICE ABBREVIATIONS Rule Use in papers filed or served 10 ABSENTEES Foreclosure action 256, 257 Partition action 247 ACKNOWLEDGMENT Bonds 25 (5) Consents, payment of court funds 31 Petition, court funds, payments out 32 ACCOUNT, COPY OF See Bill of Particulars. ACTIONS See Specific Titles. Another pending, dismissal for defects not on face of complaint 107 (4) Counterclaim 110 (2) Dismissal for defects on face, complaint 106 (4) Counterclaim 109 (3) Appellate Division, clerk's record of 7 (1) Bonds Filing forthwith, necessity 26 Form, requisites, execution 25 Sureties, attorneys disqualified 27 Cause of, barred by limitations, complaint dismissal 107 (6) Failure to state, complaint dismissal 106 (5) Counterclaim dismissal, defect on face 109 (5) Declaratory judgment 210-214 Complaint, stating relief 211 Costs discretionary 214 Discretion as to granting 211 Practice same as other actions 210 Submitting Issues to jury, practice 213 Dower, acceptance of gross sum, calculation 243 Ejectment, complaints describing property 240 Verdicts, reports or decisions specifying plaintiff's estate 241 Failure to prosecute 156 Foreclosure, see Foreclosure Injury to person, default judgment, service not personal or without state, proce- dure 192 (3) Injury to property, default judgments, serv- ice not personal or without state, proce- dure 102 (3) Issues, references to determine, witnesses subscribing testimony unnecessary 170 Matrimonial, see Matrimonial Actions. Misjoinder, pleadings, amendment. Motion time, extension 105 Order 102 Money only, default judgments, service not personal or without state, procedure. .192 (2) Papers, service 20 Partition, complaints, contents 245 Default judgment, determination by court 246 Uncontested, infant, absentee or unknown defendants, references, application 247 Poor persons, by or against 35-37 Real property, attorney, authority 55 Notice served 62 Petition perpetuate testimony, contents.. 138 Record, reports of referees, filing, entry.... 170 Recover chattel see Chattel, Action to Re- cover. Eeporta of referees, moving after filing, no- tice 170 Severance, judgment, motion to dismiss part complaint 108 Dismiss part counterclaim 108-110 Strike part defense 108-110 Stipulations, for trial, not in court house, contents, filing 159 Oral, permitted in open court i Writing, necessity 4 Rule Supreme court, venue, change. Consent, service time, failure, effect 146 Demand, service, time 146 Motion, notice, time 146 Order. Effective when 147 Effect on appeal from 147 Stay, order, effect 145 Trial. Failure to move, motion, dismiss com- plaint, determination, terms, costs 156 Not in court house, notice 159 Stays, orders, who may make, when, re- turnable when, effect 155 ADJOURNMENT Examination for taking testimony by de- position 127 Trial, for defect in pleadings, variance or failure in proof 166 AFFIDAVITS See Depositions, Petitions. Answering affidavit on motion 64 Application for ex parte order 61 Leave to prosecute as poor person 35 Order for discovery or inspection 140 Order to perpetuate testimony for future action 123 Order to punish disobedient witness on examination for use without the state.. 137 Order to take testimony by deposition... 122 Provisional remedy, filing of 80 Application to take deposition for use on motion 120 Associations, officers, depositions, to obtain 122 Before compensation granted to guardian ad litem or special guardian 43 By sureties on bonds and undertakings 25 Depositions. Out of state. Agent of party, delivering 131(1) Delivery on disability of agent 131 (2) Perpetuate testimony, orders, proof re- quired 123 For fixing bail on arrest 81 For short notice of motion 60 Judgment, default, service not personal or without state, filing' 192 (1) Motion, answering 64 Counterclaims, dismissal, defect not on face 110 For order for depositions, motion use, person not party, contents 120 On reply to 64 Vacate or modify notice to take deposi- tions, service 124 Orders. Arrest, bail amount 81 Warrant, filing, time, failure, effect... 80 Depositions, books or papers, to produce 122 Complaints, information to draw, con- tents 122 Contents, Article 29 C P A 122 Prisoners, production as witnesses, con- tents 163 Show cause. Depositions, recalcitrant witnesses, con- tents 137 Discovery or inspection, contents 140 Partition uncontested, references, applica- tion 247 Pleading. Time, extension, merits 88 Verification By whom 99 Form 100 Proof of service of summons, contents 53 Reply, counterclaim, time extension, merits 88 Agreements GLEVENGEB'S RVLES OF CIVIL PRACTICE 214 Required before proceeding to take testi- mony by deposition 128 Service of, on motion for extending time . . 85 Summary judgment, motion, plaintiff's, de- fendant's 113 Time, application for extension,' " service, copies 85 Used on motion, filing in another county. . . 73 Used on motion for extension of time to answer or reply, contents 88 Verification, form of lOO- AGREEMENTS Writing necessity 4 ALLOWANCE See Costs ALLOWANCE, ADDITIONAL Application, made to whom, when 200 AMENDIVIENTS OF PLEADINGS Defective, motion time, extension lOB On trial terms 166(1) Orders 102 Failure to answer after 101 Indefinite or uncertain 102 Service of 101 Sham, frivolous, etc., motion time, exten- sion 105 Orders 103 Striking out sham, frivolous or unnecessary matter 103 Variance or failure of proof 166 AMERICAN EXPERIENCE TABLE OF MORTALITY See complete table page 11. Use in computing gross sum in lieu of in- come on court funds 30 Use in estimating gross sum in lieu of dower 243 ANNULMENT Judgments, default, written findings, ne- cessity 191 Marriage see Matrimonial Actions, Poor person, leave to defend as 37 Leave to sue as 36 Summons, notice 47 ANNULMENT OF MARRIAGE, ACTION FOR See Matrimonial Actions. Default, proof required for Judgment 275 Next friend, order allowing action by 276 Service of notice with summons 47 ANSWER See Pleading, APPEAL See Appellate Division, Court of Appeals. Affirmance by default 237 Briefs, citations from official reports 235 Delivery to justices, rules authorized 236 IQxchange of, rules authorized 236 General requirements as to 235 Printing. Necessity 235 Requisites 235 Service 235 Calendar practice. Filing notes of issue 237 Hearing causes 237 Preparation and publication of calendars 237 Default, judgment on 237 Dismissal for breach of rule 234 Dismissal, motion for failure to file and serve papers 234 Exceptions, notice of exceptions appealed from 229 Exhibits and voluminous documents, print- ing of 232 Findings of fact, by appellate division 239 Insertion or specification of facts In order 239 From order, affidavits and other papers on, statements required 235 From order on motion to make pleadings more definite and certain 235 From order on motion to strike out irre- levant, scandalous or redundant matter. . 2351 From order, papers on, generally 234 Rule Hearing of cause on, rules authorized 287 Judgment on default. Affirmance 237 Reversal 237 Judgment roll on, and after 203 On appeal from appellate division, to con- tain opinion 203 Modification of judgment below 239 Note of issue, rules authorized 237 Opinions on appeal. Announcement 238 Charge for furnishing to counsel 238 Delivery of copies, before announcement 238 Before transmission to court reporter. To persons generally 238 To counsel 238 Furnished to clerk before announcement 238 Publication by court reporter 238 Transmission to supreme court reporter before announcement 238 Order on reversal or modification by ap- pellate division 239 Papers, delivery to justice, rule authorized 236 Papers on appeal from order, furnishing.. 234 Papers on, motion to dismiss for failure to furnish 234 Record on, certification by clerk 234 Filing copy, time for 234, 235 General requirements as to 235 Opinion of court below as part of 234 Papers constituting 234 Printing. Necessity 234, 235 Requisites 235 Requisites of record 236 Service of 234, 235 Stipulation as to true copies 234 Who must furnish 234 Reversal by default prohibited 237 Submitted controversy on agreed facts, pa- pers provided by plaintiff 234 Bill of exceptions, amendments, proposal, time for 230 Notation or marks required on 230 Notice of, time 230 Proposed bill, numbering lines 230 Reference to stenographic minutes noted on 230 Submission for settlement 230 Service, time for 230 Settlement by appellate division, judge or referee 230 Notice of 230 Contents, evidence 232 Exhibits and voluminous documents 232 Extension of time for serving 233 Insertion of agreed facts 230 Necessity 229, 230 Notice of exceptions 229 Proposal and settlement 230 Required acts, extension of time for.. 230, 233 Resettlement for failure to conform to rule 232 Service. On opposite party 230 Time 230 Time for serving 230 When may be used 229 Case on appeal, proposal and settlement of amendments 230, 231 Failure to propose, effect 231 Failure to notice settlement 231 Proposal, time for 230 Service, time extended on notice 233 Service, time for 230 Proposed amendments, when deemed agreed to 231 Submission for settlement. Marks required on amendments 230 On stenographer's minutes 230 Notice of. Necessity 230 Time 230 Proposed bill, numbering lines 230 Settlement. By judge or referee 230 Notice 230 Contents, evidence 232 Exhibits 232 Exhibits and voluminous documents 232 215 INDEX TO RULES OF CIVIL PRACTICE Attorney-General Rule Extension of time for serving, generally 230 Notice of application for 233 Failure to make, effect 231 Insertion of agreed facts 230 Necessity 230 Preparation, effect as stay of judgment . . 20S Proposed case, when deemed agreed to.. 231 Required acts, extension of time for.. 230, 233 Resettlement for failure to conform to rule 232 Resettlement, when ordered 232 Service. On opposite party 230 Time 230 Time extension 233 Settlement, effect as stay of judgment.. 203 General provisions regarding 230 Time for serving 230 Time for making 230 Waiver of right to make 231 APPEARANCE Attorney, real property action, authority . . 66 Authority for, compelling production in real property action 65 Default in, proof on application for judg- ment after ^ 189 Substitution of attorney 66 APPELLATE DIVISION See Appeal. Admission to bar, consent to renewal of re- jected application 1 Examining committee 1 Records kept T (.i) Records transmitted to other court clerks 7(4) Bond and undertaking record 7(3) Books kept by clerk 7 Briefs and paper Disability of agent, affidavit 131 (2) Exhibits, annexed, subscription, identi- fication 130 (1) Filing of papers ...._. ■_. 131 Filing, when mailed 131 (4) Mailing packet ^ 130 (6) Rule Return by agent of party 130 (7) Sealing packet 130 (5) Special requirements as to depositions so taken 130 Subscribing each sheet 130 (2) Suppression for irregularity or improper conduct 133 Suppression where resident of state mak- ing deposition could have been sub- poenaed 133 Taken by one of persons named to take 130 (8) Taking testimony by, adjournments of ex- amination, by whom made 127 Adjournments of examination, limitations as to place 127 Authorization papers required before pro- ceeding with examination 128 Manner of conduction examination 129 Objections 129 Reading of deposition to witness 129 Refusal of witness to answer, proceedings on 129 Signing of deposition by witness 129 Time and place 127 Testimony, to perpetuate, orders, affidavits 123 Real property action ^ 138 To be used without the state, petition for subpoena, contents 136 Subpcena, application to vacate or modify 136 Subpcena duces tecum 136 Vacating or modifying 136 Subpoena for witness, proceedings to ob- tain 136 Subpffina, punishment of disobedient wit- ness 137 Witnesses, reading deposition to 129 Recalcitrant, procedure, punishment 137 Report to court 129 Refusal, obey subpcena, procedure, pun- nishment 137 Produce book or paper, procedure, pun- ishment 137 Subscribe, procedure, punishment 137 Testify or answer question, procedure, » punishment 137 Subscribing by 129 DEPOSITORtES See Court Funds. DISABILrTY Of defendants, dismissing complaint 107 (9) DISCOVERY OR INSPECTION Books, papers or articles, order to show cause 140 Affidavit for 140 Order for, contents, stay 141 Referee for 142 Referee's certificate, effect 142 DIVORCE, ACTION FOR See Matrimonial Actions. Children, pleading and trial of issue of illegitimacy 279 Default, proof required 277 Default, proofs as to legitimacy of children 279 Information as to details in action, restric- tions as to 278 Judgment entered only by special direction of court 283 Written findings of fact 191 Summons, service of notice with 47 Trial, public may be excluded 278 DOCUMENTS Discovery or inspection, order for, copy or pliotograph 140 DOWER Gross sum in lieu of, method of estimating 243 DRAFTS See Court Funds. DRUNKARDS Summons, service, persons designated for.. 44 EIGHTH JUDICIAL DISTRICT Motion in actions in 63 EJECTMENT Action of 240, 241 219 INDEX TO RULES OF CIVIL PRACTICE Guardians Rule Complaints, describing property 240 Verdicts, reports or decisions, specifying plaintiff's estate 241 ENGLISH LANGUAGE Use in papers filed or served 10 EVIDENCE Admission or exclusion, argument, exclud- ing jury 164 Relevant, inadmissible under pleadings, amending on trial, terms 166 (1) Trial, failure of proof, additional evidence to avoid 162 (2) Adjournment to avoid, terms , . . .162 (2) New trial to avoid, terms 162 (2) Variance, amending pleadings on trial ..166(1) EXAMINATIONS See Depositions. EXCEPTIONS Effect as stay of judgment 203 Bill of, see Appeal. Motion for new trial on exceptions to be heard in first instance in appellate divi- sion 220 EXECUTIONS Return of, satisfied in whole or part, entry by clerk in docket 204 EXHIBITS Annexed to exposition taken without state 130 Printing on appeal 232 EXTENSION OF TIME See Time, liimitations of Xime. Additional extension of time to plead, after stipulation 87 Affidavits served with order extending time 85 Affidavits showing merits on application ex- tending time answer or reply 88 Serve case and bill of exceptions on appeal 230 To make motion addressed to pleading, no- tice required 105 To plead in action on promissory note or unconditional payment of money 86 FAILURE TO PROSECUTE ACTION Proceedings on 166 FEES Referee's, on disposal of infant's real prop- erty 3O0 Commissioners in lunacy proceeding 288 FIDELITY COMPANIES Bonds, justification not required 25(4) FILING PAPERS See Affidavits, Papers. FINDINGS Written, on judgments by default, when necessary 191 FIRST JUDICIAL DISTRICT Applications for judgment for failure to answer, made where 191 Motions in actions in, to be made in dis- trict where triable 63 Motion on notice cannot be made in, in ac- tion triable elsewhere 63 FORECLOSURE OF MORTGAGE, ACTION FOR Absentees, reference to take proof in case of 256 Chattel mortgages, governed by applicable rules for realty mortgages 267 Complaint, statement as to other action for mortgage debt 255 Computation of amounts due 256 Costs, allowance for recording or filing mortgage and assignments 266 Default or admission, computation of amount due 256 Motion for judgment on 257 Infants, reference to take proof in case of 256 Judgment for sale, contents of 259 Description of property 259 Directions for sale 259 Judgment on default or admission 257 Application at special term 257 Notice of Ha pendens, proof of 258 Proof required 257, 258 Rule Mortgage and assignments, recording or fil- ing before conveyance 266 Notice of pendency, proof of filing 258 Personal property mortgages and other liens, provisions applied to 267 Referee selected by court 265 Referee to make sale named in judgment . . 259 Reference, subscribing by witness unneces- sary 170 Reference on application for surplus moneys 262, 263 Reference on default or admission 258 Examination and report as to sale in parcels 256 Notice to parties 263 Right to 256 Selection of referee 265 Sale, contents of judgment of 259 Confirmation, motion for, papers 261,262 Reference 262 Conveyance to purchaser, filing or record- ing papers before, necessity, costs 266 Notice of application for stay of 280 Stay, by judge, out of court 260 Report of, voucher as to surplus moneys must accompany 261 Sheriff to sell when directed in Judgment.. 259 Surplus moneys, application for and pro- ceedings on 262, 263 Costs on application for reference 262 Disposition of 261 Into surrogate's court 264 To officers 261 Equity of redemption, proceedings by owner of 263 Invested at interest for benefit of person entitled thereto 261 Notice of claim and proceedings on ..262,263 Notice of claim, filing and service 262, 263 Payment into surrogate's' court 264 Referee, selection of 265 Reference ^ 262 FORMS See Specific Titles. Appeal, bill of exceptions 232 Briefs on 235 Case on 232 Records on '. 235 Bill of particulars, verification of 116 Bond and undertaking 25 Judgment , 185 Notice, in matrimonial actions 47 On service of summons by publication . . 52 Oath of referee 171 Pleadings 90 Verification of 100 Summons 45 Supplemental summons 48 Verification, affidavit of, pleadings 100 Bill of particulars 116 FRAUDS, STATUTE OF Complaint, dismissal, when contract barred 107 (8) Counterclaims, motion to dismiss, defect not on face 110 t5) FUNDS IN COURT See Court Funds. GROSS SUM In lieu of dower, method of estimating 243 In lieu of income in court funds, method of computing 30 GUARDIANS, AD LITEM OR SPECIAL Additional security as 41 Adverse interest, not to have 40 (2) Application for appointment of, for infant.. 39 Attorneys, duty to act 40 (6) Compensation, affidavit 43 Paid by whom 43 Consent to act, acknowledgment, filing... 40 (5) Court officers, duty to act 40 Duties 42 Duty and compensation of person desig- nated to receive summons 44 Financial responsibility 40(3) General guardian as 40 (1) Nomination, not by adverse interest 40 (2) Qualifications 40 Guardian CLEVENGER'S RULES OF CIVIL PRACTICE 220 Rule Security, additional 41 (2) Approval 41 (1) Dispensed with, general guardian 41 (4) Trust companies 41 (3) Under $100 41(1) Form 41 (2) General guardian, additional 41(4) General provisions 41 Time to apply for, for infant 39 Trust company qualified 40 (4) GUARDIAN, GENERAL Acting ad litem or special, security only on order 41 (4) Appointment, petition for, contents 290 Who may present 290 Ascertainment of infant's age and property on application for 291 Bond, amount of 292 Ascertainment as to sufficiency of se- curity offered 291 Requisites and sufficiency 292 Surety company, when required 292 Deposit or investment of funds by order of court 292 Metliod of selecting 291 Nomination by infant 291 Proceeds of sale of real property, when paid to 299 When income only received by 292 INCOMPETENT PERSONS See Infants or Incompetents. Committee of, designation of person in pro- ceeding as 285 Disposition of real property of incompe- tent 295-298 Lunacy proceeding, fees and expenses . . . 288 Payment by committee 288 Petition for, contents 287 Necessary facts 287 Verification 287 Where presented 286 Person designated to receive summons for, duty and compensation 44 Special guardian of (See Guardians). General provisions 41-43 Summons, service on person designated ... 44 INDEFINITE OR UNCERTAIN PLEADING Motion to correct ^ 102, 105 INFANTS See Infants or Incompetents. Cause of action of, application to compro- mise 294 Defendants, motion for judgment on com- plaint because of infancy 105 Foreclosure action, reference to take proof 256 General guardian (See Guardians, General). General provisions 290-292 Giving additional security as guardian ad litem or special guardian 41 Guardian ad litem and special guardian (See Guardians Ad Litem or Special). General provisions 39-43 Guardian ad litem for infant defendant, time to apply in certain cases 39 Partition actions 245-247 Complaints 245 Default judgments 246 Uncontested, reference, procedure 247 Persons designated to receive summons for, duty and compensation 44 Poor person, leave to defend, guardian 37 Leave to prosecute, guardian 35 Real property of, disposition (See Infants or Incompetents). General provisions 295-300 Settlement of Infant's cause of action by court 294 Special guardians (See Guardians, Ad Litem or Special). General provisions 39-43 Summons, service on person designated ... 44 Support, maintenance or education, appli- cation for and notice 293 Petition, contents 293 INFANTS OR INCOMPETENTS Disposition of real property of, application, contents of petition 297 Rule Application, notice of 296 Application, place of 295 Costs and fees, limitation on 800 Proceeds of sale, payment to general guardian of infant 299 Proof required before referee 298 Referee, facts to be ascertained by and report of 298 Referee, fees of ?00 INJUNCTION Application for, filing after order served ... 80 Vacating order for failure to file petition or affidavit 80 INK Black used in papers filed or served 10 INQUIRY, WRITS OF Application for new hearing on 222 Damages ascertained by, service not per- sonal or without state 192 (3) Executed where ._. 191 Judgment on, setting aside 222 Notice to be served on demand of defen- dant, time 190 (2) INSPECTION Books, papers or articles, order to show cause, affidavit, grounds 140 Determination, order contents, stay ....*. 141 Referee, appointment, certificate, effect. . 142 INTERROGATORIES Cross, service, failure, effect 126 Time ■ ■ 126 Depositions, out of state, annexing 130 (3) Questions allowed ^ l26 Service, time 126 Settlement, consent 126 Notice, failure, effect 126 Service, time 126 IRREGULARITY Notice of motion based on 62 ISSUE Note of, filing, contents, time 151 Note of, in appellate division, rules au- thorized 237 ISSUES Of fact, terms at which triable 158 Reference to determine, subscribing testi- mony 170 Settlement for jury trial, application 157 Failure to apply, waiver of right 157 Service of proposed issues, time 1B7 JUDGES County court, certificate of disqualification of judge, necessity 5 Disqualification, effect on time 5 Depositions taken out of state, receiving... 131 Judgments, final, triable by courts, settle- ment by 188 Referees in same court, not to act as, ex- cept by consent, no compensation 172 JUDGMENTS After death of party 186 After jury trial of specific questions 194 Application on motion 194 (1) By court or referee 194 (2) After reference to determine specific ques- tions of fact 199 After sham or frivolous answer or reply 104 After trial of Issues and determination of motion for judgment 196 After trial of whole issue of fact, entry by clerk 198 Against dead persons, notes of death to be entered 186 Contents of, generally 185 Declaratory judgment, action for 210-214 Complaints, stating relief 211 Costs discretionary 214 Discretionary as to granting 212 Practice, as in other actions 210 Submission of issues to jury, practice . . . 213 Default, demand by defendant of certain notice after and proceedings thereon 190 (2) In appearing 188 In appellate courts 237 In matrimonial actions, prohibited 66 221 INDEX TO RULES OF CIVIL PRACTICE Libraries Written findings, necessity 191 In pleadings, notice, time 190 (1) Interlocutory and final judgment on 18S Notice to defendant on application for judgment 190 (2) On failure to answer, application made where 191 References, executed where 191 Vacating, application made where 191 For obtaining in wrong county or term 191 On motion 66 Proceedings when service made outside state or not personally 192 Affidavit of default, filing 192(1) Bond for restitution 192 (5) Corporations, nonresident or foreign, examination as to credits 192(4) Affidavit of levy of attachment when judgment for money only 192(2) Proof of course of action 192 C3) Proof of service, ffling 192(1) Proof to be filed on application to court after 189 Rendered on counterclaim, notice 193 Where one or more of several defendants have not answered 193 Written finding of fact, when not required 191 Dismissing complaint, defects not on face.. 107 Defects on face 106 Former judgment, same cause 105-107 On issue determined, after severance.... 108 Dismissing counterclaim, defects not on face 110 Defects on face 109 On issue determined, after severance 110( 108 Entry, by clerk after report or decision.... 198 General provisions as to 201 Tn judgment book, generally ; 201 In office hours 201 In term or vacation 201 On application to court or clerk after certain motions for judgment 196 Signing and filing judgment to consti- tute 201 Stay of, order required 203 Entry of satisfaction or partial satisfaction in judgment book 204 Ex parte, affidavit, necessity 61 Final, actions triable by courts, costs 188 Entry 188 Settlement by court 188 By referee 188 After decision or report awarding inter- locutory judgment 187 After interlocutory judgment on default, or pursuant to decision or report 188 After issues disposed of and motion for judgment granted, application to court 195 a) Actions triable by jury 195 (2) Before referee 195 (3) After issues disposed of where nonsuit not granted, entry by clerk under CPA § 485 196 Motion for 196 After jury trial 194 (1) After motion for judgment granted on de- fault, motion for under CPA § 490 197 After reference of some of Issues and trial of others, taken how 199 After trial by referee or court of whole issue of fact, entry by clerk 198 After trial of last issue, on motion, when Dismissing answer 110 Dismissing complaint 108 Proceedings for new trial not to stay 203 Stayed when ; • • il • • * Taxation of costs before entry and after interlocutory judgment 188 Former, for same cause, dismissing com- plaint 107 (5) Dismissing counterclaim ._. .lii> U) Pleading jurisdictional facts concerning.. 95 Form of, generally 1^^ Interlocutory judgment on default, decision or report, actions triable by court 188 Costs Ill Partition 246 Rule Settling final judgment 188 In uncontested cases, statement of juris- dictional facts 1S5 Judgment book, clerks to keep 7(B), 201 Note of death of defendant in 186 Judgment roll, contents 202 (2) On affirmance, by appellate division 202 (6) On appeal from appellate division ..202(6) On default judgment 202(3) On judgment after trial 202 (4) On proceedings after appeal 202(7) Death of party noted on 186 Filing by clerk 202 Noting exact time 202 (8) Prepared by whom 202 (1) Regulations affecting 202 Motion for, because of defect appearing or not appearing on face of pleading 106-110 Offer of, copies furnished court, by whom.. 160 Of reversal by default not allowed 237 On motion, powers of court on application for 197 On pleadings, after issue 112 Where no issue of fact remains to be tried 196 On sham or frivilous answers or replies, order 104 Time of notice of motion, extension 105 On writs of inquiry, setting aside, new in- quiry 222 Partition, sale under, stay, application, notice, time ^. 249 Interlocutory 246 Pleading judgment in certain cases 95 Pleading, motion for judgment on, after is- sue joined 112 Referee, appointment of, where required by judgment 187 Reference, inquiry or assessment, notice on demand of defendant 190 (2) Setting aside, new hearing 222 Satisfaction, entry of, wholly or partly 204 Vacation of, entry 204 Stay of, by exception, case on appeal or motion for new trial 203 Order required for stay of entry or en- forcement 203 Summary Judgment after answer 113 Action on contract 113 Action on judgment 113 Motion for, defence 113 Partial 114 Uncontested cases, form, recitals 185 JUDICIAL DISTRICTS Eighth, motions 63 (2) (3) First, applications for Judgment on failure to answer made where 191 Motions, made where 63 Second, Judgments, failure to answer, ap- plications, not made at trial term 191 JURISDICTION Person, lack of, defect not on face of com- plaint, dismissal 107 (1) Defect on face of complaint, dismissal 106 (1) Subject, lack of, complaint, dismissal, de- fect not on face 107 (2) Defect on face 106 (2) Counterclaim, dismissal, defect not on face 110 (1) Defect on face 109(1) JURIES Actions for declaratory Judgments, submis- sion of issues to 213 Taking verdicts 213 Assessment by, on application for judgment after default 190, 191 Exclusion from court room during certain arguments 164 Findings, entry by clerk, details 165 Issues settled for trial by 157 Verdict, entry by clerk, details 165 JUSTIFICATION By sureties on bonds 25 (4) , LIBEL Pleading in action for 96 LIBRARIES Subpoenas duces tecum issued to, when, by i whom, notice 162 Lien Foreclosure GLEVENOBR'S RULES OF CIVIL PRACTICE 222 LIEN FORECLOSURE Rule See Foreclosure. LIMITATIONS, STATUTE OF Complaint, dismissal, motion 107(6) LIMITATIONS OF TIME See Extension of Time, Time. One hour — Attorney to sum up 161 Twenty-four hours — Notice of application for stay of fore- closure sale 260 Return papers with objections stated 12 One day — Notice application for subpoena for li- brary or public officer 162 Notice taking deposition for use on mo- tion 120 Two days — Notice application extend time serve case or amendments 233 Notice to extend time answer action on promissory note 86 Notice application for stay of partition sale 249 Serve subpoena on witness obtain testi- mony use without state 136 Three days — Motion papers filed in county other than where motion made 72 Notice to dismiss appeal in appellate divi- sion 234 Notice to public officer file process or paper 6 Four days — Notice settle amendments case or bill of exceptions 230 Five days — Court calendars ready before term 151 Notice application for Judgment on de- fault in pleading 190 Notice of motion where attorneys in same city or village 60 Notice taking testimony by deposition . . . 121 Notice to defendant of reference, inquiry or assessment by jury 190 Serve answering affidavits on motion 64 Serve consent change place of trial 146 Serve subpoena duces tecum on witness obtain testimony use without state 136 Eight days — Notice of motion, regular 60 Ten days — File deposition after completion and re- turn 132 File and serve order for substituted serv- ice of summons on resident 49 Motion dismiss counterclaim or strike out defense 109 Motion for judgment dismissing counter- claim 110 Motion to strike out reply or separate defense Ill Notice of motion where answering affi- davits required 64 Notice of sale of desperate debts 175 Notice settlement interrogatories and cross Interrogatories 126 Serve amendments to case or bill of ex- ceptions 230 ►Serve cross-interrogatories 126 Serve interrogatories after entry of order 126 Serve notice of motion change place of trial after demand 146 Serve order to stay' case on calendar 155 Within first ten days of each year appel- late division appoint character commit- tee 1 Twelve days — File note of issue before term 151 Fourteen days — Notice trial before term 150 Serve within state notice application tor money paid into court 248 Fifteen days — File and serve papers on appeal from or- der 234 Twenty days — Application for guardian ad litem on be- half of Infant 39 ApolicatloD vacate order of arrest 83 Rule Attorney tor nonresident file and serve authority for appearance 55 File lis pendens in foraclosure before ap- plication for judgment 258 File and serve printed papers on appeal after settlement 234 Motion addressed to pleading 106 Motion tor judgment dismissing com- plaint 106, 107 Notice motion to frame issue ot fact for jury 157 Serve answer to amended pleading 101 Serve personally without state notice ap- plication for moneys paid into court... 248 Time stated in summons for appearance after its service 45 Thirty days — Serve case of bill of exceptions after no- tice entry of judgment or order 230 Four weeks — Service by publication notice of applica- tion tor moneys paid into court 248 Six weeks — Service of summons by publication once in each ot 50 Three months — Apply for reference ascertain claim to surplus moneys 262 Publication commenced or personal serv- : ice summons without state 51 Eighten months — From issue of letters pay surplus moneys in surrogates court 264 Two years — From death of decedent pay surplus moneys into surrogates court 264 County judge, time ot disqualification be- gins when '. 5 First day of February, each year, deposi- tory transmit statement to appellate di- vision 34 .Six A. M. and nine P. M. — Service on attorney at office between hours of 20 Service on party at residence between hours of 20 LOST PAPERS Use of copies 14 MACHINE Proceeding to obtain discovery or inspec- tion of ^ 140-142 MAIL Service ot papers by, generally 20 Service of summons by, proof of.. 53 MATRIMONIAL ACTIONS See Annujment of Marriage, Divorce, Sep- aration. Annulment, judgment by default, proof re- quired 275 Cohabitation 275 Lunacy 275 Next friend, appointment 276 Children, legitimacy, allegations 279 Issues, award and trial 279 Proof on default judgments 279 Default judgments, prohibitions as to ..66,283 Default on motion, application of provi- sions to matrimonial actions restricted... 66 Default, proofs to be taken in open court in case of 282 Divorce, default judgments, proof required 277, 279 Legitimacy of children, allegations con- cerning 279 Issues, award and trial 279 Proof on default judgment 279 Evidence, exhibition ot 278 Sealing up after hearing 278 Exclusion of persons from court room dur- ing examination 273 Judgment by default, annulment, proof re- quired 275 Cohabitation 275 Lunacy 275 By consent prohibited • • 283 By default, of course, prohibited 66.283 By direction of court only 283 Evidence, written and filed 282 223 INDEX TO RULES OP tUTIL PRACTICE Non-Resident Rule Proof required 277 Proof in open court, necessity 282 Reference proiiibited 282 Written findings, necessity 191 Notice served with summons in 47 Pleadings, officers of court not to permit reading or copying by strangers to action 278 Referee, appointment not permitted in case of default 282 Not to be nominated by either party 281 Proof of service required, before appoint- ment 281 Notice of appearance and retainer insuf- ficient 281 Separation, complaint, specifying miscon- duct 280 Summons, indorsing nature of action on face ■ • 47 Proof of identity of person served 53 (9) Proof of service of, with required no- tice 53 (10) Testimony, officers of court not to permit reading or copying by strangers to action 278 Trial, exclusion of public 278 MERITS Affidavit of, on motion extending time to plead 88 MISTAKES, DEFECTS AND IRREGU- LARITIES Notice of motion tiased on 62 MINUTES Appellate division 7 (2) Courts 7(7) Minute book 7(2) Motions, new trial, use of stenographic notes 223 MONEYS IN COURT See Court Funds. MORTALITY, AMERICAN EXPERIENCE TABLE_OF . Court funds, income, valuation 30 Dower, gross sum, valuation 243 MORTGAGE, FORECLOSURE OF See Foreclosure of Mortgage, Action for. Provisions respecting 255-267 MOTIONS Addressed to pleading 102-105 Answer, to dismiss, determination 108. 110 Reference 108. 110 To treat as nullity 104, 105 Time and ground, defect not on face 110 Defect on face 109 Trial by jury 108. 110 Answering affidavits on 64 Affidavits replying to 64 Appeal, printing of voluminous documents used on 232 Application for order to take deposition.. 122 Application for order to perpetuate testi- mony for future action • 123 Based on mistake omission, defect or Ir- regularity 62 Complaint, to dismiss, defect on face, grounds, time 106 Defect not on face, determination 108 Time and grounds 107 For failure to move trial, determination, terms, costs 156 Contested, place of hearing 63 (4) Costs, on default 66 Counterclaim, to dismiss, determination 108. 110 Reference 108. 110 Time and grounds, defect not on face 110 Defect on face 109 County in which must be made 63 Court funds, for payments out, necessity.. 32 Default on, proceedings on 66 By party moving 66 By party served . .^ •■ ■ • ■ ■ • ■ <>» Depositions for use on, notice, affidavit, order 1^" Eighth Judicial District, made where 63 (2) (3) Ex parte, requirements as to 61 First Judicial District heard where. .. ....63 (5) Made where "3 (2) (3) Rule For appointment of receiver of corporation, where made 178 For bill of particulars, costs on motion for 115 For defect appearing on face of complaint 106 Appearing on face of answer 109 Not appearing on face of complaint. ..107, 108 Determination _. . .^ 108 Reference 108 Time and grounds 107 Trial by jury 108 Not appearing on face of answer 110 Determination 108, 110 Reference 108, 110 Trial by Judy 108,110 For judgment, after trial of last issue... 195 (2) Under CPA § 490 197 On pleadings after issue joined 1,12 Summary, affidavit, defence 113 For part of claim 114 Where no issue of fact remains and non- suit not granted 19S Under CPA § 490 197 For new trial (See New Trial, Motion for). For removal of receiver, where made 179 For sequestration of corporate property, where made 178 In first and eighth judicial districts 63 Issues^ for settlement of for jury trials. 157 Notice of, eight days 60 Notice of less than eight days 60 Order to show cause, to bring on 60 Papers, filing in county other than where motion made 73 Furnishing to court 65 Failure to produce 66 Pleadings, part of moving papers 65 To correct 102 Time 105 To strike matter from 103 Time 105 To treat as nullity 104 Time 105 Receivers of corporations, for appointment of, made where 178 For removal of, made -where 179 Referees, for appointment of, after judg- ment 187 Replies, to strike, time, grounds Ill To strike separate defence Ill To treat as nullity as sham or frivolous 104. 105 Subpoenas, depositions for use out of state, to vacate or modify 136 To change place of trial 146 To dismiss appeal for failure to furnish papers on 234 To vacate or modify notice for taking tes- timony by deposition 124 Transfer to another judge, when 67 By order 67 By stipulation 67 Venue, for change of 146 Where made in supreme court 63 MUNICIPAL CORPORATION Production of department books and papers at trial 162 NEGOTIABLE INSTRUMENTS Pleading, extension of time for 86 NEW TRIAL, MOTION FOR Effect as stay of judgment 203 Case and exceptions to be made on 221 Jurisdiction of trial judge or special term pending- hearing by appellate division. . . . 220 On exceptions to be heard in first instance in appellate division 220 Making case, contents 220 On issue of fact, preparation and settlement of case 221 Order on motion, when to specify grounds 224 Review of interlocutory reference, writ of inquiry or inquisition 222 Stenographer's notes, when treated as judge's minutes 223 To review trial by jury of specific questions of fact 221 NON-RESIDENT Defendant judgment against, application for 192 Defendant In real property action, authority of attorney's appearance S5 Non-Suit OLEVENGER'H ROLES OF CIVIL PRACTICE 224 NON-SUIT Rule Argument for, excluding jury 164 NOTE See Promissory Note. NOTE OF ISSUE. Filing of and proceedings after 151 In appellate division, rules authorized 237 NOTICES Accompanying summons, application of provisions as to service 53 Demand by defendant for -certain notice after default judgment 190 Of application, for extension of time to plead, after first extension 87 For Judgment, after trial, notice discre- tionary 195 (2) To defendant who has appeared 190, 193 To plaintiff, on failure to reply to counterclaim 193 For order extending time to plead in cer- tain money actions 86 For subpoena duces tecum to libraries or public officer 162 In partition for money in court 248 (2) For order staying sale 249 For reference of uncontested action .... 247 To extend time for serving or preparing case on appeal or amendments 233 To frame issues 157 Serving proposed issues with 157 To suppress deposition taken without the state 133 To take deposition for use on motion .... 120 Of assessment by jury on default judgment, on demand of defendants 190 (2) Of auction of personal property of debtor's estate 175 Of motion 60 Based on defect or irregularity, to spec- . ity detect 62 For extension of time to make motion ad- dressed to pleading 105 For extension of time to plead in action on promissory note 86 For settlement of issued for jury trial... 157 To change place of trial 146 To dismiss complaint 106,107 To dismiss counterclaim i. . .109, 110 To strike defense 109 To vacate notice of taking testimony by deposition 124 Of moving case, after filing report of ref- eree _. 170 Of pendency in foreclosure action 258 Of stay of sale, in foreclosure action 260 In partition action 249 Of taking testimony by deposition 121 Proof of service of 128 Of trial elsewhere than at courthouse 159 Of trial, time for service 150 Of writs of inquiry on default judgment, on demand of defendant 190 (2) Publication of notice with summons 52 In real property actions 52 Service, mode of, generally 20 Proof of, required before taking deposi- tions or interrogatories 128 Service with summons, demanding money judgment 46 In matrimonial actions 47 Out of state v • ,, ^? Proof of , 63 (11) To become parties in certain actions 8 To defendant who appeared, of application for default judgment 190, 193 To plaintiff, of application for default judg- ment on counterclaim 193 To present claims, court may direct giving or publishing 8 To public ofllcer to file papers or process. . . 6 NOTICE OF PENDENCY In foreclosure action, proof or filing 258 NUMBERS Use of Arabic or Roman permitted in papers filed or served 10 OFFICERS Attachment for failure to return, deliver or file process or papers 6 Rule Compelling return, delivery or filing of pro- cess or papers 6 Court, guardian ad litem, duty to act 40 (6) Of courts (See Courts). Process, subscription or indorsement by. . . 13 Public, verification of pleadings by 99 C2j OPINION On order, filed, part of record 72 ORAL AGREEMENTS Between parties and attorneys, prohibition- as to 4 ORDERS See Appeal. Affecting title to real property, docketing as judgment 74 Attorney, substitution on terms 56 Arrest, orders relating to (See Arrest). Court funds, relating to (See Court Funds). Creditors, for giving or publishing notice to, to become parties or exhibit claims 8 Depositions, relating to (See Depositions). Directing payment of money, docketing as judgment 74 Discovery and inspection^ for 141 Order to show cause 140 Docketed as judgment in certain cases 74 Entry by clerk prohibited, when 71 Entry, filing papers on 71 Entry of papers in another county 73 Ex parte, requirements 61 Final judgment, for stay of, necessity 203 Form of, generally 70 Money, for payment of, docketing 74 Motions, for transfer of 67 On application to review interlocutory ref- erence or writ of inquiry 222 On motion for new trial, when to specify grounds 224 Opinion or memorandum, filing of 72 Part of record 72 Papers on appeals from 234 Partition, for staying sale, notice 249 For supplemental summons 251 Party prevailing, filing by in another county 73 Pleadings, to amend 102 To strike 103 To strike matter from 103 Prisoners, for production as witnesses 163 Poor persons, for leave to defend as 37 Annulment of 37 For leave to prosecute as 36 Annulment of 36 Real property actions, to attorney to pro- duce authority to act 55 Real property, afEecting, docketing, indexing 74 Receivers of debtor's estate, to sell or im- prove real property 175 Resettlement In extended form TO Short form of, permitted 70 Signed with judge's signature or intials '70 Stays, orders containing 155 For change of venue 145 Summons, for service of, by publication 50 For substituted service 49 Testimony, to take outside of state, re- quirements before proceeding 128 Time, for extension of, ser.vlce of aflldavits used 85 To plead, aflldavit of merit 88 Notice 87 To plead on note, notice 86 To show cause (See Orders to Show Cause). Venue, for change of, effect lj,l ORDERS TO SHOW CAUSE First judicial district, where returnable.... 63 For discovery or Inspection 140 For motion based on defect or Irregularity, contents 62 On proceedings against disobedient wit- nesses on taking depositions 137 To bring on motion 60 PAPERS SERVED OR FILED Abbreviations 10 Address of attorney or party on 11 Attorneys, subscription by 11 Commencing proceedings, service of 21 Compelling officer to return, deliver or file 6 225 INDEX TO RULES OF CIVIL PRACTICE Plaintifffl „ . Rule Copies may be served .'. . 10 Legibility of 10 Used when .^ 14 Copying on Inspection 140 Depositions, relating to, filing..' 125 Taken out of state, annexing to 130(8) To be used out of state, subpoena to pro- duce 136 Discovery or inspection of, proceeding for 140-142 Filing after change of place of trial 15 After substituted service of summons within state 49 And indorsing, special rules permitted... 16 By officer, proceedings on failure of 6 On change of venue 15 Place of, generally 15 Kefusal for not complying with rules 10 Flat files, use may be required 16 Furnishing of, on trial 160 General requirements as to 10, 12 Indorsement of 11 Special rules for, authorized 16 Ink, black to be used .„. . 10 Language, English to be used 10 Legibility and size 10,12 Lost or withheld, use of copies 14 Numbers, Arabic and Roman 10 Objections to, waived when 12 On appeal (See Appeal). On motion, filing 71 Production 65 Failure, effect 66 Paper used, size, quality 10 Photographing on inspection 140 Place of filing generally , 16 Production for use taking depositions, affi- davit for 122 Printing 10 Service of (See Service of Papers). Service of copies 10 Subscription and indorsement by attorneys 11, 12 Of writs and other process 13 Summons, service of (See Summons). Technical words, use of 10 Trialj furnishing to court 160 Typewritten 10 Waiver of objections as to requirements respecting _. 12 Witnesses refusing to produce on taking depositions, procedure 137 Writs and other process, subscription and Indorsement ^ 13 Written ._._ 10 PARTIES Adverse, examination to draw complaint ... 122 Appearance, judgment after default in 189 Creditors, notice to become 8 Depositions, right to examine and copy when filed 132 Right to cross examination in taking.... 120 Guardian ad litem for, time for application 39 Compensation 43 Guardians, special, compensation 43 Infant (See Infants). Inspection or discovery, right to apply for. 140 Notice, of moving cause after report of referee j 170 To become parties in certain actions 8 Papers, address Indorsed on 11 Service on, actions 20 By mail 20 (J) By serving clerk of court 20 (5) Residence 20 (5) Service on, proceedings 21 Partition, heirs of deceased party brought in as 251 Infant, absentee or unknown, procedure on reference _. 247 Plaintiffs, misjoinder of, motion to cor- rect 102. 106 Plaintiff or defendant, defect of, motion to correct 102, 105 Pleadings, defects as to plaintiffs or defen- dants 102 Subscription by party appearing in person 91 Verification by 99 Poor persons as (See Poor Person). Process, service on, proceedings 20 Rule Service of papers on 20 Stipulations by, necessity of writing 4 Without attorney, pleadings, subscription of 91 PARTNERS Of attorney or counsel, disqualified as ref- erees 172 PARTITION, ACTION FOR Absentees, reference on default or admis- sion in case of 247 Abstract of conveyances on default or ad- mission in case of infants, absentees or unknown parties 247 Complaint, general requirements 245 Contingent interests, allegations in com- plaint 245 Death of parties, proceedings on 251 Default, ascertainment of right and inter- eats in case of 246 Heirs of deceased parties, supplemental summons for 251 Infants, allegations of complaint when In- fants Interested 246 Reference on default or admission where infant party 247 Judgment, Interlocutory, determination on default 246 When Infants are parties 246 Moneys paid into court, application by party for 248 Affidavits required 248 Notice of 248 (2) Referee, selection By court 250 Reference on default or admission in case of infants, absentees or unknown par- ties 247 Report on, contents 247 To ascertain rights and interests in case of default or Infant party 246 Sale, notice of stay of 249 Summons, supplemental, for heirs of de- ceased parties 251 Unknown parties, allegations of complaint. . 246 Reference on default or admission In case of 247 PAYMENT INTO AND OUT OF COURT See Court Funds. PEOPLE OF STATE Pleadings, verification by whom 9(2) PERPETUATION OF TESTIMONY By deposition for use in action about to be brought 123 In real property actions, contents of pe- tition 138 PERSONAL PROPERTY Foreclosure of mortgages and other Hens on 267 Of debtor's estates, management and sale by receiver 175 Proceeding for discovery of 140-142 PETITION See Affidavit. Admission to practice as attorney 1 Appointment of committee of Incompetent person 286, 287 Guardian for Infant 290 Discovery and inspection 140 Obtain testimony of witness without state 136 Payment of money out of court 32 Perpetuate testimony in real property ac- tions 138 Poor person, leave to sue as 35 Leave to defendants 37 Receiver to sue 175; 177 Sell, mortgage or lease real property of In-' fant or incompetent 295 Subpoena, for depositions for use out of state 136 PHOTOGRAPHS Books, papers, article, by parties, right to make, order for 140 PLACE OF TRIAL See Venue, change of. Provisions respecting 145-147 PLAINTIFFS See Parties. Actions, failure of to bring to trial, motion to dismiss 155 Pleadings CLUrENGER'S RULES OF CIVIL- PRACTICE 226 Am J II , Rule Affidavit by on motlen for summary judg- ment 113 Default by, reply to counterclaim, judg- ment on, notice 193 Incapacity to sue, dismissing complaint, de- fect not on face 107 (3) Defect on face 106 (3) Judgment, default, proof to be filed by on application 189 Motion by, to dlsrhlss counterclaim for de- fects hot on face 110 For defects on face 109 To correct pleading, trial 105 To strike defense, new matter 109 To strike sham or frivolous matter from pleading, time 105 Pleadings, defect as to parties, amendment 102 Trial papers furnished to court by, when... 160 PLEADINGS Allegations, incorporation by reference 90 Amended, affect of failure to answer 101 Order to serve, on motion to correct 102 Service of 101 Amendment after motion for defect not ap- pearing on face of complaint 108,110 Amendment after motion to correct or strike out matter 102,1.03 Amendment of defective, after commence- ment of trial 166 Answer, plaintiff's motion on, foj defects not on face 110 Determination of 108. 110 Jury trial on 108.110 Reference of 108. 110 Plaintiff's motion on, for defects on face.. 109 Sham or frivolous, how treated 104,105 Judgment on j., 104 Motion against, time for 105 Pllading anew after, terms 104 Striking defenses from 108. 110 Striking out and summary judgment, mo- tion for , 113 Defence against 113 For part of claim 114 Attorneys, verification by 99 (3) Bill of particulars, costs on motion for il5 Verification of 116 Causes of action Improperly joined, mo- tion to correct 102 Complaints, alleging Incorporation, effect. . 93 Detective, amending on trial, terms. .166 (1) In action for declaratory judgment 211 For partition 245 For recovery of real property 240 Information to draw, depositions for 122 Motion to dismiss, for defect on face, grounds 106 For defect not on face 107 Determination 108 For failure to prosecute 156 Jury excluded from argument on 164 Service on defendant on his demand 189 Severance, dismissal of Issues 108 Striking out, grounds for 103,105 Striking out and summary judgment 113 Trial, dismissing on for failure of proof, unnecessary when 166 (2) Condition precedent, how pleaded 92 Copies of, used when 14 Furnished to court, by whom 160 How prepared 160 Corporations, alleging incorporation, effect 93 Pleading by or against 83 Verification by, domestic 99 (1) Foreign 99 C3) Waiver of mistake In corporate name 93 (3) Correction of, order for 102 Counterclaims, amending on trial, terms 166 (1) Dismissing for failure of proof unneces- sary when 166 C2) Motion by plaintiff for defect appearing on face of 109 Motion by plaintiff for defect not appear- ing on face of 110 Determination of motion 108,110 Reply to, affidavit of merits for exten- sion of time 88 Severance, dismissing of issues 108.110 Default in. notice on application for judg- ment after 190 Rule Proof on application for judgment after, affidavit 189 Defect of parties, motion to correct 1.02. 106 Defective, amendment after trial com- menced 166 (1) Order to amend 102 Denial once made, deemed sufficient for all purposes 90 Extension of time, additional time after stipulation for 87 Affidavit of merits in support of 88 In actions on promissory notes, etc 86 To answer, reply, affidavit required 88 Failure of defect of proof under, procead- ings on 166 Formal requirements 90 Furnishing at trial, designating parts ad- mitted or controverted 160 General provisions 160 General requirements ^ 90 In libel and slander actions 96 Alleging application to plaintiff 96 In slander action brought by woman 97 Indefinite, uncertain or obscure, motion to make definite 102. 105 Instrument for paymejit of money, how pleaded 94 Judgment on, after issue joined, motion for 112 When sham or frivolous 104 Motion for 106 Judgment on default In 188 Default in answering 191 Judgment or determination, how pleaded.. 96 Libel, alleging application to plaintiff 96 Lost or withheld, using copies 14 Misjoinder of parties plaintiff, motion to correct 102 Notice of motion 105 Order to amend 102 Motions against, time, extension, notice 105 Motion to make more definite and certain, appeals from order on 235 Motion to strike out parts as Irrelevant, redundant or scandalous, appeal from or- der on 235 Motions, pleadings deemed before court on 65 Paragraphs of, numbering 90 Partial Judgment on 114 Parties, misjoinder or defect of, motion to correct 102, 105 People of state, verification of pleadings in behalf of 99(2) Private statute, how pleaded 98 Public officers, verification of pleadings in behalf of 99 (2) Reference, incorporation of allegations by. 90 Reply, defective, amending on trial 166(1) Terms on 166 (1) Motion to strike, for insufficiency Ill Separate defense from Ill Time for Ill Sham or frivolous, how treated 104.105 Judgment on 104 Motions against, time for 105 Pleading anew after, terms 104 To counterclaim, extension of time for, affidavits of merits 88 Requirements, generally 90 Separate statement and numbering of causes 90 Sham, frivolous, irrelevant or repetitions matter, striking out 103, 105 Time to make motion 106 Slander, alleging application to plaintiff.. 96 Alleging special damage 1 n action by woman 97 Statute, private, how pleaded 98 Striking out sham or frivolous answer or reply 104, 105 Subscription by attorney or party 91 Summary judgment after answer 113 Time to plead, additional extension 87 Affidavit of merits required 88 Extension, In action on promissory note 86 Trial, copies furnished to court by whom.. 160 How prepared 160 Variance in, amendment after trial com- menced 186 Verification, by whom made 99 For domestic corporation 99 (1) 227 INDMX TO RULES OF CIVIL PRACTICE Releases Rule For foreign cerporatien 99 (3) For people of state 99 (2) For public officer 99 (2) Form of affidavit, of 100 POOR PERSONS Attorney, assigned to defend 37 To prosecute 36 Leave to defend as, general provisions re- garding 37 Annulment of 37 Petition for 37 Leave to sue as, application tor 36 Annulment of 36 Order for 36 Petition for 36 POST-OFFICE Service of papers through, generally 20 Summons, proof of deposit in 6S PRINTrNG Papers filed or served, style, quality 10 PRISONER Application for order to produce, as witness 163 Affidavit for, contents 163 PROCEEDINGS Bonds in, (See Bonds). Papers commencing, service 21 Process, service 21 Record of, by clerk of appellate division. .7 (1) By clerks of other courts 7(6) Term Includes special proceedings 9 PROCESS Compelling officer to return, deliver, or file 6 Names of process, proper and known, may be used 10 Services in proceedings 21 Subscription and indorsement 13 PROOF Failure or defect, adjournment to avoid 162 (2) New trial to avoid 162 (2) PROMISSORY NOTE Extension of time to plead in actions on . . 86 How pleaded 94 PUBLIC OFFICER Filing of papers by, proceeding on failure 6 Production of books and papers at trial under subpoena 162 REAL PROPERTY Actions affecting, authority of attorney of nonresident 55 Notice attached to summons served by publication or without state 52 Petition to perpetuate testimony, con- tents , 138 Actions to recover, complaint, description of property in 240 Verdict, report or decision, statement of nature of plaintiff's estate in 241 Of debtor's estates, management, repairs, sale, by receiver 175 Of infants or incompetents, disposition of, application for made where 295 Costs .i 300 Joinder of infants interestj^ 300 Notice of, where incompetent in state in- stitution 296 Petition, contents. 297 Place of 296 Reference, if several infants Interested. . 300 Proof, necessity and sufficiency 298 Report by referee, necessity and suffi- ciency 298 Sale of infant's real estate, payment of proceeds to guardian 299 RECEIVER Allowance for counsel fees, restrictions on 180 Counsel, power to employ 180 When additional permitted 180 Extension of receivership to subsequent suit 179 In supplementary proceedings, application by, for leave to sue 177 Consent of creditor 177 Security for costs by 177 Leave to sue, security for costs required when 176 Rule Of corporate property, where motion for ap- pointment made 178 Of debtor's estate, actions and proceedings by 176 Allowance of costs 175 Compromise and settlement of claim by. . 175 Duties as to management of property... 175 Duties generally 175 Sales of real and personal property by... 175 Removal of, where motion for, made 179 Security for costs before action by 176 RECORDS See Clerks of Courts. REFEREE See Reference. Appointment, restrictions on 172 To hear proof on default judgment where service not personal or without state 192 (3) To superintend discovery or inspection... 142 To take deposition for use on motion 120 When required by judgment 187 Attorneys, appointment as 172 Court officers, appointment as 172 Deposit and withdrawal of moneys by 173 Fees of, on disposal of infant's real prop- erty 800 Filing report of 170 In foreclosure action, appointment to make sale of premises, duties 2S9 Selection by court , 265 In matrimonial action 281, 282 In partition action, selection by court 250 In proceeding disposition real property in- fant or incompetent, duties 298 Judge, appointment as 172 Judgment, final, directed by after trial 194 (2) Settled by, after interlocutory judgment 188 Moving on report of 170 Oath of, how taken and waived 171 Objections to appointment of 172 Proceeds of sale by, deposit and withdrawal 173 Qualifications of, generally 172 Objections to 172 Reports, filing, entry by clerk 170 Judgment awarded by 195(3) Judgment on, entry by clerk 198 Sale, attorneys, must be, except by con- sent 172 To superintend discovery or inspection oi book, paper or property 142 Certificate of, effect 142 REFERENCE See Referee. In foreclosure action, on application for sur- plus moneys 262. 263 Infants, absentees, or unknown parties, right ascertained on 247 Judgment after reference to determine specific questions of face 199 Judgment after trial of whole issue of fact before referee 198 New hearing for error, proceedings on ap- plication for 222 On application for Judgment after de- fault 190, 191 Notice to defendants 190, 191 Where executed ^ 191 On default or admission. In foreclosure ac- ^ tion 256 In partion action 246 Infant, absence or unknown defen- dants 247 On motion for judgment for defect, not on face of complaint 108 Not on face of answer, on counter- claim 108.110 On petition for payment of money out of court , 32 To ascertain rights and interests in parti- tion action, in case of default 246 247 Signing testimony by witness '170 Waiver of 170 When unnnecessary ,',,[ iyq RELEASES Of demand in complaint, motion to dis- miss 107 (7) Of demand in counterclaim, motion to dis- i"'ss 110 (4) Replevin OLEVENOEB'8 RULES OF CIVIL PRACTICE 228 Rule .270-273 REPLEVIN See Chattel, Action to Recover. Provisions respecting REPLIES See Pleading. REPORTS See Referees RULES OF COURT Additional authorized 2 For calendar practice authorized 237 For exchange and delivery of papers, au- thorized 236 For filing and Indorsing papers, author- ized 16 For filing, notes of issue, authorized 237 For hearings, authorized 237 Surrogate's courts, supreme court rules ap- plicable to 3 SECRETARIES Of Judges, disqualified as referees 172 SALE By receiver of debtor's estate 175 In mortgage foreclusure action 259, 261 In partlon action, notice of stay 249 Of real property of infant or incompetent See Infant or Incompetent. SECURITY See Bond and Undertaking. Attorneys, prohibition as to being surety on bail 27 For costs by receiver before action 176 For cost by receiver in supplementary pro- ceedings, before action 177 SEPARATION, ACTION FOR See Matrimonial Actions. Complaint, requirements as to details and specifications 280 Judgments, defaults, necessHy of written findings 191 Summons in action, service cf notice with 47 SEQUESTRATION Of corporate property^ motions for. where made 178 SERVICE OF PAPERS Beginning a proceeding 21 Briefs, rules authorized 236 By mail .' 20 CD Copies, use of, for service 10 General requirements as to papers served 10 In a proceeding, generally 21 Interrogatories, and cross interrogatories.. 126 Mode of, generally 20 Of notice for taking testimony by deposi- tion 121 Of written interrogatories on taking testi- mony by deposition 126 On attorneys, at office 20 (2) At residence 20 (3) By mail 20(1) (4) In letter box 0(3) On court clerk 20 (4) On nonresident 20 (4) On parties, at residence 20 (5) By mall 20 (1) On court clerk 20 (5) Proof of required, to notice of motion, to take depositions for use thereon 120 On application for funds in court 32 In partition 248 On application for judgment by default.. 189 If service not personal or without state 192 (1) To complete substituted service 49 To take depositions 128 Partition actions, how made on applica- tion for court funds 248 Publication, order for, contents 50 Papers to be filed, when out of state 52 Time, completion . of 61 Substituted, papers to be filed 49 Summons, service of (See Summons). Admission of 53 (3) Affidavit of 53(3) Certificate of 53 (3) General provisions 53 Proof of, how made 53 Rule Time of (See Limitations of Time, Time). SETTLEMENT Of case, bill of exceptions, or amendments ^, ,,, 2oO-,bO^ On fliiai " judgmentafter interlocutory judg- ment on default, decision or report l»» On infant's cause of action ^94 On interrogatories on taking testimony by deposition 126 Of issues for jury trial ,--;-i ^2a Resettlement of order in -extended form... lU SH ERI FF Duties under judgment in foreclosure ac- tion 259 Filing of return compelled ■ . b Summons certificate of service of 53(1) SLANDER Pleading in action Alleging application to plaintiff Pleading in action brought by woman Alleging special damages Special damages, allegation or proof unnec- essary in action by woman, when 96 96 97 97 87 SPECIAL GUARDIAN For infants and incompetent persons (See Infant or Incompetent). SPECIAL PROCEEDINGS Included in term "Proceeding" 9 Record of, appellate division 7 (1) Service of papers in, generally 21 STATUTE Private statute, how pleaded 98 STAY Contained in order, as affecting cause on calendar for trial 155 For change of venue, granted when 145 In order for discovery or inspection 141 Of judgment, order required for 203 Of sale in foreclosure action, notice of. . . . 260 Of sale in partition action, notice of 249 STENOGRAPHER Appointment as referee prohibited 172 Notes of, when treated as minutes of judge on motion for new trial 223 STIPULATIONS Depositions out of state, to take, execu- tion by one of several named 130 (8) Depositions, to take, filing 125 For trial elsewhere than at courthouse 169 Motions, to transfer 67 Oral agreements in open court permitted.. 4 Prohibition as to oral agreements 4 Reduced by consent to order and entered. . 4 Testimony, to take, requirements 128 Writing, necessity 4 SUBSTITUTED SERVICE Of summons (See Summons). SUBPOENAS Duces tecum, to libraries or public officials 162 Using verified copies or stipulation, re- fusing, effect 162 For taking depositions to be used out of state 136 Failure to obey, procedure 137 Vacation or modification 136 SUMMONS Admission of service 63 Contents 63 (3) Proof of service by 53 (1) What is admitted 53 (4) Annulment action, notice to be on face.... 47 Deposit In post-office, proof of 53 Divorce action, notice to be on face 47 Form of, generally 45 Form of supplemental 48 Matrimonial actions, proof of Identity of persons served 63 (9) Proof of service of required notice with summons 53 Notice served with, summons demanding money Judgment 46 Summons in matrimonial actions 47 Summons out of state, form 62 In actions affecting real property 62 229 INDEX TO RULES OF CIVIL PRACTICE Time Rul« Person designated to receive, for infant and incompetent, duty and compensation 44 Proof of service, generally B3 Publication, order for service by 60 Notice to be published or served with summons 52 Papers to be filed on service by 62 Personal service in lieu of 61 Proof of 63 (7) Service by, wh6n deemed complete 61 Service in lieu of, papers to be filed on.. 62 Time for first publication 61 Requisites, generally 45 Separation action, notice to be on face 47 Service, acknowledgment of 53 (1) By person under eighteen years of age prohibited , 63 Of notice accompanying . . . ^ 53 On person designated 44 For drunkards 44 For incompetents 44 For infants 44 Proof of 53 Agent of server 53 (2) By mail 53 (8) Certificate of sheriff 53 (1) Identity of person served 53 (3) In matrimonial actions 63 (9) (10) Identity of person served 63 (9) Publication 53 (7) Piling 62 Substituted 55 (5) Filing 49 Publication, alien enemy 50 Completed when 51 Filing papers 52 Mailing copy 50 Notice, form 62 Order, requisites 50 Proof 53 (7) Time 51 Without the state, proof of 53 (6) Complete when 51 Filing papers 52 Time 51 Substituted service on corporation within state, proof of 53 Substituted service within state, filing pa- pers after 49 Proceedings after service 49 Proof of 53 When summons deemed served 49 Supplemental, form of 48 For heirs of deceased party, in partition 251 Trial, copies furnished to court, by whom 160 County designated on 45 SUPPLEMENTARY PROCEEDINGS Receivers, leave to sue, consent of creditor or security for costs 177 SUPREME COURT Eighth Judicial District, motions made where 63 (2) (3> First Judicial District, motions, made where 63 Filing and indorsing papers, special rules by appellate division 16 Filing papers in, generally 15 Issues of fact, terms at wfiich triable 168 Judgments, on failure to answer, applica- tion at what terms 191 Reference or writs of inquiry, where ex- ecuted 191 Vacation of, applications made where 191 When granted at wrong terra or county 191 Motions, made where 63 Orders to show cause, for recalcitrant wit- nesses on taking depositions 137 Papers, filing 15 Rules, applicable to surrogate's courts 3 Authorized, for files and indorsements... 16 Summons, trial county designated 46 Venue, change of 145-147 SUPREME COURT REPORTER Duty as to opinions of appellate division.. 238 SURETIES Attorneys disqualified 27 Bonds, acknowledgment 26 (6) Execution, sufficiency 25 Justification, affidavit 25 (4) SURETY COMPANIES Rule Bonds, justification not required 26(4) SURROGATES' COURTS Application of supreme court rules to 3 Case or bill of exceptions, time for service of 230 Surplus moneys in foreclosure action, pay- ment into 264 TABLES American experience table of mortality. Page 211 General rules of practice, disposition of. Page 474 Rules of Civil Practice, sources, Page 477 Showing present value of immediate an- nuity Page 212 TECHNICAL WORDS Use in papers filed or served 10 TERMS, ORDERS GRANTED ON For adjoining trial to avoid failure of proof 162 (2) For amending pleadings on trial 166 (1) For new trial to avoid failure of proof.. 162 (2) For permission to try case on motion to dismiss for failure to prosecute 166 For production of books and papers by li- brary or public oificer 162 For vacating or modifying notice to take depositions 124 TESTIMONY Commission to take out of state 128 In divorce actions, privacy of 278 In matrimonial actions, sealing of 278 Of prisoner at trial, application for order.. 163 On Interrogatories (See Interrogatories) On references (See References) Perpetuation of (See Perpetuation of Testi- mony) . Taking testimony by deposition (See Depo- sition). TIME (See Extension of Time, Limitation of Time). Amended pleadings, answering 101 Application, guardian, appointment 39 Bonds or undertakings, filing forthwith 26 Calendars, preparation, distribution 151 Creditors present claims, fixed by order. . 8 Depositions, filing 132 Effect of disqualification of county judge on 5 Examination, deposition, interrogatories.. 127 Extension, action on note, pleading, notice 86 Application for, aflSdavits, serving copies of 85 Pleading, additional extension, notice of application 87 Affidavit of merits 88 Reply to counterclaim, affidavit of merits 88 Interest to commence, on court funds.... 34 Interrogatories, cross, service 126 Service 126 Settlement, notice 126 Judgment roll, filing, exact time noted 202 (8) Limitations, statute of, complaint, dis- missal 107 (6) Motions, answers, to strike defense, defect not on face 110 Defect on face 109 Complaint, to dismiss, defect not on face 10? Defects on face 106 Counterclaim to dismiss, defect not on face 110" Defect on face 109 Filing papers on 71 Issues, framing for jury trial 187 Proposed issues, service 15? Papers on, filing in another county 73 Reply, or separate defense, to strike Ill Venue, for change of ^ 146 Notice of issue, filing ^^ 151 Notice, application for judgment, default in plaidings 190 (1) Of motion go For order to take depositions for use on motion 120 When answering affidavits required 64 Officer, file process g Partition, application, order staying sale.. 249 Reference, assessment or Inquiry de- fault judgments 190 (2) Time CLErENaER'8 RULES OF CIVIL PRACTICE 230 „ ^ Rule Subpoena, depositions used out of state. motion to vacate or modify 138 Duces tecum, application for, directed to libraries or public officials 162 Taking depositions 121 Trial, service _. ^ 150 Opinion, on order, filing 72 Order of arrest, appiication for additional security 83 Application to reduce bail 83 Application to vacate 83 Filing papers on 80 Papers, service, at office, hours 20(2) At residence, hours 20 (5) Partition, application for court funds, no- tice, service, publication 248 (2) Pleadings, motions against 105 Running when, on dlsqualiflcation of judge 6 Service, affidavits, reply 64 Out of state, completion of 51 Filing papers on 62 Publication. Completion of 51 Filing papers on 62 First publication 61 Order to specify 60 Stipulations, depositions, filing 126 Subpoena, depositions to be used out of state, service 136 Transfer of motion, order 67 Trial, summing up 161 Venue, change of, consent, service 146 Demand for, service 146 TIME Waiver, objections to, papers served 12 TRIAL Adjournment for defect in pleadings, vari- ance or failure in proof 166 Books and papers, production by libraries and public officer 162 By Jury, settlement of issues for 167 Calendar, preparation of, before term 151 Change of place of, provisions respecting 145-147 Conduct of, general provisions 161 Couinsel, conducting tri^l 161 ^ross examination, conduct of 161 Elsewhere than at courthouse, stipulation for 159 Evidence, additional received, to avoid fail- ure of proof 166(2) Examination of witness, conduct of 161 Failure of proof, adjournment to avoid, terms 162 (2) New trial to avoid, terms 162 (2) Failure to prosecute action, proceedings upon 156 Findings, entry by clerk 165 Issues of fact, terms at which to be tried.. 158 Jurors, exclusion from cQurt room during certain arguments 164 Jury, settlement of issues for 157 Proposed issues, service 157 Motion for new trial (See New Trial, Mo- tion for). Motion for settlement of issues for jury trial 157 Motion to dismiss complaint for failure to prosecute 156 New trial, direction of, for defect in plead- ings, variance or failure of proof 166 Motion for (See New Trial, Motion for). Note of Issue, contents and filing 151 Proceedings after filing 161 Notice of trial, time for service 160 Opening and closing addresses 161 Order containing stay, effect on case on calendar for trial 156 Papers to be furnished on, designating parts of pleadings admitted or contro- verted 160 Papers to be furnished on, general provis- ions 160 Pleadings, amendment in case of variance after trial commenced 166 Amendment of defective, after trial com- menced 166 Prisoner as witness, application for order to produce 163 Rule Proofj failure or defect In, proceedings on . . 166 Variance between pleadings and, proceed- ings on 166 Stay in order, as affecting case on calen- dar for trial 155 Granted when, by whom...j 155 Returnable when 155 Subpoena requiring books and papers of libraries and public officers 162 Summmg up, general provisions 161 Terms at which issues of fact triable 158 Venue (See Venue). General provisions 145-147 Verdict, entry of, by clerk j. 165 Exclusion of jury on argument for direc- tion of 164 TRUST COMPANY Appointment as guardian ad litem or spe- cial guardian of infant 40, 41 Appointment as special guardian of incom- petent 40, 41 Duties as to moneys paid Into court 3i Funds of Infant, deposit with 292 Paying out of moneys paid into court 32 TYPEWRITING Papers filed or served 10 UNDERTAKINGS See Bonds and Undertakings, Security, VARIANCE Between pleading and proof, avoiding 166 VENUE, CHANGE OF Consent by plaintiff, proceedings on fail- ure to give consent 146 Demand for, contents and service 146 Filing papers on, place 15 Notice of motion for, time for service 146 Order for, effect of, for purposes of appeal 147 Entry of 147 Taking effect of 147 Stay of proceeding on application for 145 VERDICTS Declaratory judgments, taking on trial of action for 213 Direction of, argument for, excluding Jury 164 Ejectment, specifying plaintiff's estate 241 VERIFICATION See Pleading. WAIVER Of objections to papers served 12 WARRANTS Arrest (See Arrest). General provisions 80-84 Attachment (See Attachment). General provisions 80-84 WITHHELD PAPERS Use of copies 14 WITNESSES Cross examination, by one counsel only... 161 Depositions (See Depositions). (jeneral provisions 120-133 Disobedient, on taking depositions, proce- dure, punishment 137 Examination, by one counsel only 161 Examination for information to draw com- plaint, procedure 122 Prisoners as, order to produce, procedure... 163 References, subscribing testimony 170 Stay not to prevent subpoenaing 155 Testimony of, perpetuating, procedure 123 WRITING Papers filed or served 10 WRIT OF INQUIRY On application for Judgment after de- fault 190, 191 Notice to defendant after his demand 190 Where executed 191 Proceedings on application for new writ of 222 WRITS Filing by officer compelled 6 Subscription and indorsement 13 CLEVENGER'S TABLES OF PRACTICE ACTS [401] DISTRIBUTION TABLE CODE OF CIVIL PROCEDURE September 30, 1921 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1 Section 62 62 63 Rule 4 Last sentence. 7 22 10 First four sentences. 23 Omitted. 24 24 First sentence Last sentence "165,' ioQ 79 78 13 Subd. 2. 25 26 34 150 37 First sentence Last sentence 437 Subd. 1. 3' 38 159 Judiciary, § 8. Judiciary, § 8. Subd. 2. 39 41 437 92 44 As to civil matters. As to criminal matters 44 Code Criminal Procedu'-e, 45 As to civil matters. As to criminal matters 436 § 10-6. 45 Code Criminal Procedure .51 §10-f. Judiciary Law, § 19. 52 93 94 236 53 55 60 20 Subd. 4. 65 First sentence Last sentence omit- ted 240 65 100 102 102 102 102 103 104 Subd. 1. 101 Subd. 3. 102 Subd. 2, 4. 103 Subd. 5. 108 109 110 Prison Law, § 24, 111 Civil Rights Law, § 72. 118 Prison Law, § 23 127 As to " executions " Except as to " exe- cutions " 769 832 166 165 Subd. 2. 127 131 132 133 Prison Law, § 22, first two sentences. [403] CLEVmatllVS TAIitm of practice ACTH 404 Code of Civil Procedure, §§ 134-194 Code of Civil Procedure Civil Practice Act Rulea of Civil Practice Portion of section or rule, or other statement of disposition Section 134 138 139 140 141 142 149 150 151 152 153 154 155 156 157 158 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 181a 190 191 194 194 Sectio Rule Firet sentence . Last sentence. 588 589 606 605 Prison Law, § 22, last sen- tence. Prison Law, § 363. Prison Law, § 367. Prison Law, § 368. Prison Law, § 369. Prison Law, § 369-a. Prison Law, § 362. Prison Law, § 364. § 365, first § 365, last 366, 366, first last Prison Law, sentence. Prison Law, sentence. Prison Law, sentence. Prison Law, sentence. Prison Law, § 369-b. Code Criminal Procedure, § 312-a. Prison Law, § 361. Prison Law, § 369-c. Prison Law, § 369-f. Prison Law, § 369-s. Prison Law, § 369-h, first sentence. Prison Law, § 369-li, last sentence. Prison Law, § 369-i. Prison Law, § 369-i. Prison Law, § 369-k, first sentence. Prison Law, § 369-k, last sentence. Prison Law, § 369-1. Prison Law, § 369-m. Prison Law, § 369-n. Prison Law, § 369-e. County Law, § 196. County Law, § 197. County Law, § 198. County Law, § 199. County Law, § 199-a. County Law, § 199-b. County Law, § 199-c. County Law, § 199-d. County Law, § 199-e. County Law, § 199-f. County Law, § 154. 405 DISTRIBUTION TABLE Code of Civil Procedure, §§ 195-282 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 195 Section 142 64 189 Rule 217 218 220 Omitted. 229 143 618 65 438 77 231 235 239 241 251 Omitted, covered by Judici- ary Law, § 300. Court of Claims Act, § 2 Court of Claims Act, § 4. Court of Claims Act, § 12. 263 263 Except 11th and 12th sentences. . 11th and 12th sen- 264 Except 5th to 10th sentences 5th sentence 6th sentence 7th to 10th sen- tences 264 Court of Claims Act, § 26. 264 264 Court of Claims Act, § 23. Court of Claims Act, § 14. Court of Claims Act, § 22. Court of Claims Act, § 7. Omitted. 265 265a 266 Except last sen- tence 266 Last sentence 267 Court of Claims Act, § 9. Court of Claims Act, § 13. Omitted. 268 Except last para- graph 268 Last paragraph. . . . 268a Court of Claims Act, § 28. Court of Claims Act, § 2Sa. Court of Claims Act, § 25. Court of Claims Act, § 17. Court of Claims Act, § 16. Court of Claims Act, § 27. Court of Claims Act, § 10. Court of Claims Act, § 35. Court of Claims Act, § 11. Court of Claims Act, § 33. Court of Claims Act, § 34. Court of Claims Act, § 29. Court of Claims Act, § 30. Court of Claim? Act, § 31. Court of Claims Act, § 32. Court of Claims Act, § 5. Court of Claims Act, § 8. Court of Claims Act, § 20. Court of Claims Act, § 21. Court of Claims Act. 5 3. 268b 269 270 First and thirds en- tences 270 Second sentence . . . Last sentence 270 271 272 273 274 First sentence Last sentence 274 275 276 277 278 279 280 281 281a 282 Except pt. of third sentence CLEVENQER'S TAliLEH OF PRAGTIVE ACTS 406 Code of Civil Procedure, §§ 282-333 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 282 283 284 284 284 315 316 317 318 319 319 319a 319b 320 321 322 323 324 325 326 327 328 329 330 331 332 333 333 Pt. of third sen- tence Section Rule First two sentences. Third sentence. . . . Last five sentences. First two sentences. Last sentence First sentence . . . Second sentence . Court of Claims Act, § 2, seventh sentence. Court of Claims Act, § 6. Court of Claims Act, § 18. Court of Claims Act, § 19. Court of Claims Act, § 24. New York City Court Act, §18. New York City Court Act, §19. New York City Court Act, §20. New York City Court Act, §21. New York City Court Act, §22. New York City Court Act, §§ 24-26. New York City Court Act, §23. New York City Court Act, §62. New York City Court Act, §2. New York City Court Act, §3. New York City Court Act, §4. New York City Court Act, §45. New York City Court Act, §35. New York City Court Act, §36. New York City Court Act, §27. New York City Court Act, §28. New York City Court Act, §5. New York City Court Act, §6. New York City Court Act, §7. New York City Court Act, §8. New York City Court Act, §11. New York City Court Act, §12. New York City Court Act, §16. 407 DISTRIBUTION TABLE Code of Civil Procedure, ,§§ 333-373 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 333 Third sentence. . . . Section Rule New York City Court Act, 335 §13. New York City Court Act, §14. New York City Court Act, 336 337 §15. New York City Court Act, §17. New York City Court Act, §37. New York City Court Act, 338 339 339a §38. New York City Court Act, §34. 340 67 68 73 190 189 341 342 First two sentences. Last two sentences. 342 First two sentences. 343 344 New York City Court Act, §26. Part first sentence. 344 First sentence 190 344 345 1G8, 190 Last sentence. 345 New York City Court Act, 346 §24. New York City Court Act, 346 95 72 09 74 75 §25. 347 348 First sentence Last sentence 348 349 350 Judiciary Law, § 798. Judiciary Law, § 799. 351 352 353 Code Criminal Procedure, §484. Subd. 1. 354 130 70 76 31 32 33 34 34 36 35 37 38 39 40 41 355 356 362 363 364 365 Par. 1. 366 Par. 2. 367 368 369 370 371 372 373 OLEVENGER'S TABLES OP PRACTICE ACTS 408 Code of Civil Procedure, §§ 374-414 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 374 Section 42 43 Rule 375 375 Public Lands Law, § 139f, 376 44 45 44 46 47-51 "47 48 49 50 51 56 52 53 54 55 13 12 57 58 49 59 60 61 16 17 18 19 20 21 22 27 23 24 14 28 29 15 25 26 30 10 last sentence. First three sentences. 377 378 Last sentence. 379 380 380 Justice Court Act, § 13. 381 382 383 384 385 386 387 388 389 390 First sentence Last sentence First sentence Last sentence 390 Omitted. 390a 390a Omitted. 391 392 393 394 Subd. 4. 395 396 397 398 399 400 401 402 403 1 irst two sentences. Last sentence 403 404 405 406 407 408 409 410 411 412 413 First sentence Justice Court Act, § 13, 1; at 413 c!ause. 414 Except subds. 2 and 3 411 Subds. 2 and o omitted 409 DISTRIBUTION TABLE Code of Civil Procedure, §§ 415-443 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 415 Section 11 218 Rule 416 Pt. 825. 417 45 45 First par. 418 Except last sen- 418 Last sentence First sentence Last sentence 218 257 485 23 263 238 1478 237 220 225 Pt. 419 First sentence. 419 420 Omitted. 421 First sentence Last sentence First sentence Last sentence First senten e. 421 422 11 422 423 424 425 First three sentences. 426 Subds. 1, 2 and 4. Last two sentences of subd. 1 Subd. 3 426 426 44 Prison Law, § 369d. 427 226 226 208 225 227 Par. 1, subd. 1. 428 First sentence Last sentence Par. 1, subd. 2. 428 429 Subd. 2. 430 430 Justice Court Act, § 59. 431 228 431 Subds. 1 and 2 Subd. 3 Justice Court Act, § 50, 431 subd. 1. Justice Court Act, § 51, 432 229 subd. 1. 4 2 Subds. 1,2, 3 Justice Court Act, § 51, 433 21 53 subd. 2. Except last sentence. 434 Subds. 1, 3, 4. 435 230 231 436 436 Surrogate's Court Act, § 55, par. 5, second clause. 437 437 49 par. 5, first sentence, last clause, and last sentence. 438 232 232 234 Except par. 2 of subd. 8. Subd. 8, par. 2. 439 440 First sentence Except first sen- tence 440 50 51 52 62 441 442 Par. 1, 2. 443 Subd. 1 First two paragraphs. 443 Subds. 2 and 5 pt. . 233 CLEVSNGER'S TABLES OF PRACTICE ACTS 410 Code of Civil Procedure, §§ 443-466 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 443 Subd. 3 Section 235 Rule 443 Subd. 4 51 53 Last sentence. 443 Subd. 5 pt Subd. 6. 443 Subd. 6 483 444 53 Subds. 7, 8. 444 Surrogate's Court Act, § 61, 445 217 194 209 2ii 214, 259 259 221 194 195 210 last paragraph. Except last sentence. 446 446 447 First clause First sentence Second sentence . . . Third sentence .... Last senten-e First two sentences Last sentence Justice Court Act, § 26. 447 447 447 447 448 448 449 449 Justice Court Act, § 27. 450 200 450 Justice Court Act, § 28. Justice Court Act, § 215. 451 452 193 219 220 216 . 453 First sentence, pt. . First sentence, pt. . Last sentence 453 453 48 Last sentence. 454 Subd. 1. 454 Justice Court Act, § 29. Subd 2 455 216 455 Justice Court Act, § 30. 456 475 216 475 457 Subd. 3. 458 Justice Court Act, § 37. Par. 1. 458 458 As to petition As to order 196 35 459 Justice Court Act, § 38. 459 35 459 Subd. 2 199 460 36 460 Except last clause. First sentence, pt. . First sentence, pt. and last sentence Justice Court Act, § 39. 461 197 1493 461 First paragraph. Justice Court Act, § 40. 461 461 37 36,37 462 Last sentence. 462 Justice Court Act, § 41. 463 198 464 37 37 First sentence. 465 Last sentence. 466 558 466 Justice Court Act, § 43. 411 DISTRIBUTION TABLE Code of Civil Procedure, §§ 467-498 Code of Civil Procedure Civil Practice Act Rules of Civil Practice :=^ - "~T Portion of section or rule, or other statement of disposition Section 467 Section 1493 Rule Last paragraph. 467 Justice Court Act, § 42. 468 201 468 Justice Court Act, § 31. 469 202, 205 203 204 202, 203 204 202 206 224, 239 470 First sentence Last sentence First sentence, pt. . First sentence, pt. . Last sentence First sentence Last sentence First two sentences Last sentence Except last clause. 470 Subd. 1. 471 471 471 40 Subd. 1. Subd. 2. 472 First sentence. 472 473 40 Subd. 5, 6. 473 474 41 41 Subd. 1. 475 Pt Subd. 2. 475 Pt Omitted. 476 41 Subd. 4. 477 205 207 254 477a 478 478 Justice Court Act, § 128. 479 Except last sen- tence, pt Last sentence, pt. . 257 263 257 241, 255 256 479 tences. Second sentence. 480 Last sentence. 481 482 483 90 First sentence. 484 258 260 487 487 Justice Court Act, § 131. 488 Justice Court Act, § 132. 488 Except subds. 2 and 8 278 279 280 Subd. 1. 488 Subds. 2 and 8.... 490 490 Justice Court Act, § 133. 492 28: Pt. 492 Justice Court Act, § 134. 493 277 277 494 494 Justice Court Act, § 144. 495 Justice Court Act, § 145. 495 278, 279, 280 280 496 496 Justice Court Act, § 146. Last sentence. 497 First sentence Last sentence 283 96 278 497 498 498 Justice Court Act, § 147. CLEVENQER'8 TABLE8 OF PRACTICE ACTS 412 Code of Civil Procedure, §§ 499-527 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 499 Section 278, 279 Rule 499 Justice Court Act, § 148. 500 241, 261 500 Justice Court Act, § 138. 501 266 501 Justice Court Act, § 138. 502 267 502 Justice Court Act, § 139. Except last sentence. 503 477 477 504 504 Justice Court Act, § 265. 505 268 505 Justice Court Act, § 142. 506 269 506 Justice Court Act, § 143. Par. 1. 507 262 607 90 508 262 Par 2 508 Justice Court Act, § 167. 509 270 509 Justice Court Act, § 168. 611 First two sentences Last two sentences 476 1480 511 511 Justice Court Act, § 169. 512 Except last sen- 488 512 512 Last sentence 202 Subd. 2. Justice Court Act, § 266. 513 251 241, 272 494 274 272 514 515 616 517 First clause 517 90 First sentence, pt. Omitted. 518 519 275 519 Justice Court Act, § 163. 520 Last sentence First sentence 263, 273 264 243 248 276 620 521 ii,n 522 522 Part as to answer.. Except last sen- Justice Court Act, § 156. 523 523 Last sentence Code Criminal Procedure, 524 § 392a. 524 Justice Court Act, § 152. 625 99 525 Justice Court Act, § 153. 526 100 626 Justice Court Act, 5 154. 527 49 413 DISTRIBUTION TABLE Code of Civil Procedure, §§ 528-558 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 528 Section 253 Rule 528 Justice Court Act, § 155. 529 250 530 98 530 Justice Court Act, § 159. 531 Except last sen- 246 247 531 Last sentence 531 Justice Court Act, § 158. 532 532 First sentence 95 533 533 First sentence 92 Justice Court Act, § 162. 534 94 534 Justice Court Act, § 149. 635 535 First sentence Last sentence 338 339 9S 536 536 Part as to personal injury and injury to property First two sentences Last sentence Justice Court Act, § 160. 537 103, 104 537 1487 538 103, 104 539 First sentence .... Last two sentences 434 First sentence. 539 166 539 Justice Court Act, § 164. 540 434 540 Justice Court Act, § 165. Last sentence. 541 434 541 Justice Court Act, § 166. 542 244 543 101 544 First sentence Last sentence 245 1488 545 545 103 First part. 546 102 112 547 547 476 826 827 818 827, 839 828 829 830 831 817 816, 833 818 834 549 550 551 Last sentence. 552 553 554 555 556 Except last sen- tence. . Last sentence First part. 557 557 558 si Pt, CLEVENQER'S TABLES OP PRACTICE ACTS Code of Civil Procedure, §§ 558-605 414 Code of Civil Procedure Civil Practice Act Pules of Civil Practice Portion of section or rule, or other statement of disposition Section 558 Section 843 819, 835, 837 836 838 Rule 559 560 561 Except first and third sentences . . First and third sen- tences 661 82,84 562 First sentence Last sentence, pt . . Last sentence, pt . . 839 840 841 First sentence. 562 562 80 First sentence. Omitted. 563 564 564 Justice Court Act, § 73L 566 263 842 567 567 83 568 816, 822, 844, 845 846 847 848 849 850 851 852 853 854 855. 856 857 858 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 877 816, 878 879 572 573 574 575 576 577 578 579 680 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 415 DISTRIBUTION TABLE Code of Civil Procedure, §§ 606-651 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 606 Section 817, 880 816, 881 818 882 821 883 819, 884 885 886 887 888 819, 889 890 891 892 819, 893 Rule 607 608 609 610 First sentence Except first sen- 610 611 612 613 614 615 616 617 618 619 620 621 Omitted. See Civil Prac- 623 894 895 896 822, 897 816, 822, 898 816, 899 900 901 902 tice Act, §§ 819, 892, 893. 624 625 626 617 628 629 630 635 635 New York City Court Act, § 44 pt. 636 816, 903 816, 904 817, 818, 905 906 637 638 639 639 80 640 819, 907, 908 821, 909, 910 9ii 912 913 914 915 916 917 918 919 Except first sen- tence, first clause First clause of first sentence 641 641 642 84 644 645 646 647 648 649 650 651 CLEVENGER'H TABLED OF PRACTICE ACTS 41G Code of Civil Procedure, §§ 652-706 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or ether statement of disposition Section 652 Section 920 920 921 922 923, 1101a 924 925 927 926 928 929 930 931 932 933 93 1 934 935 936 937 938 939 939 940 941 942 943 944 945 946 947 948 816, 822, 949, 950 951 952 953 816, 954 955 956 957 958 958 958 959 960 961 962 963 964 965 966 968 Rule First two sentences. 653 Last sentence 654 655 656 657 658 658a 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 686 687 688 689 690 691 692 693 Subd. 1. 694 Subd. 2. 695 Subd 3. 696 697 698 701 702 703 704 705 706 417 DISTRIBUTION TABLE Code of Civil Procedure, §§ 707-756 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition [Section 707 Section 520 969 970 971 972 973 974 975 156, 976 977 978 979 823 824 109 109 105 Rule 708 709 710 711 712 713 714 715 716 717 718 719 720 721 Except last sentence. 722 723 723 First two sen- tences Justice Court Act, § 460. 724 105, 108 105, 109 725 Subd. 3. 726 14 727 Penal Law, § 2053. 728 Justice Court Act, § 488. 728 105 150 729 First paragraph. 729 Justice Court Act, § 418. 730 150 Last paragraph. 730 Justice Court Act, § 419. 731 171 172 173 173 322 175 176 177 178 179 133 732 733 734 735 736 737 738 739 740 743 744a State Finance Law, § 44a. 7 5 134 746 State Finance Law, § 44c. 747 136 136 135 748 First sentence. 749 750 State Finance Law, § 44b 751 137 752 State Finance Law, § 44d 753 State Finance Law, § 44e. 754 Omitted. 755 82 83 756 CLEVENOER'S TABLES OF PRACTICE ACTS 41E Code of Civil Procedure, §§ 757-796 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rile, or other statement of disposition Section 757 Section 84 85 86 87 88 91 478 89 Rule 758 7S9 760 761 762 763 764 764 Last two sentences, pt Justice Court Act, §"461. 765 478 765 Justice Court Act, § 257. 766 90 90a 127 766a 767 First two sentences. Last two sentences. First sentence Second, third and fourth sentences. Fifth sentence Sixth sentence .... Seventh sentence. . Eighth, ninth and tenth sentences. . Last sentence 767 70 768 113 115 128 119 117 105 768 768 768 768 768 768 769 65 63 Last sentence. Subds. 1, 2, 3. 770 116 771 67 772 130, 131 Subd. 2. 773 774 581 169 118 775 776 First two sentences. 777 Omitted 778 118 1520 779 780 60 781 98 782 85 783 98 99 99 784 Subd. 1, 2pt. Subd. 2 pt. Justice Court Act, § 429. 785 785 786 8 787 144 139 789 790 Code Criminal Prnppdiirp 791 138 140 141 §7a. 792 793 796 796 First sentence Second sentence . . . 20 10 First paragraph. First sentence. 419 DISTRIBUTION TABLE Code of Civil Procedure, §§ 796-821 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 796 797 Third sentence Subd. 1 Section Rule 235 First sentence. Justice Court Act, § 431. 797 20 Subds. 1, 2, 3, 5. 798 164 163 First sentence. 799 20 800 Subd. 5, last part. Last sentence. 801 164 223 163 801a 802 802 20 Par. 1. 803 324 324 First sentence. 804 805 Except last clause. Last clause 140 805 167 805 141 806 Omitted. 807 807 807 First sentence Second sentence . . . Last sentence isoe 325 326 141 142 First sentence. 808 809 810 25 Subd. 5. 810 Justice Court Act, § 416. Subds. 1 and 2. 811 First sentence, first 25 811 Second sentence, and first sen- tence, last part . . 156 811 Justice Court Act, § 421. 812 158 812 First three sen- tences 25 Subds. 3, 4, 6. 812 First four sentences Justice Court Act, § 420. 813 152, 153 149 813 Last sentence Justice Court Act, § 422. 813a 813a Justice Court Act, § 423. 814 First and last sen- tences 159 814 Second sentence. . . First, second, part, and third sen- Omitted. 814 Justice Court Act, § 424. 815 148 815 Justice Court Act, § 425. Subd. 7. 816 25 816 Justice Court Act, § 417. 817 Covered by 96 97 96 287 285, 286 180 818 819 Covered by 820 820a 821 CLEVMNGER'ti TABLEH OF PRACTICE ACTS 4;;0 Code of Civil Procedure, §§ 822-855 Ojde of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 822 Section 181 430 100 101 , 145 80 346 347 348 349 350 Rule 823 824 825 826 827 828 829 830 '831 832 832 See Penal Law, § 2444. 832 See Code of Criminal Pro- 833 351 352 353 354 355 343 340 342 341, 1065 356 265 cedure, § 392. 833 S34 Covered by 129 835 836 837 838 839 840 841 841a 841b 841b Decedent Estate Law, § 131. 841b 379 357 358 842 843 843 First sentence 844 359 360 tence, § 62a. 845 845 Justice Court Act, § 243. 846 361 846 Justice Court Act, § 244. 847 362 847 848 363 848 Justice Court Act, § 246. 849 364 849 Justice Court Act, § 247. 850 365 850 Justice Court Act, § 248. 852 404 405 853 853 Legislative Law, § 62a. Subd 1. 854 406 406 854 First sentence Legislative Law, § 62a, part, 855 as to legislative committee Subd. 2. 421 DISTBinUTION TABLE Code of Civil Procedure, §§ 856-892 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 856 Section 406 406 406 407 408 408 409 410 411 Rule Subd. 3. 857 Subd. 4. 858 Subd. 5. 859 861 Subd. 1. 862 Subds. 2 and 3. 865 866 867 867 Except fourth sen- tence Justice Court Act, § 201. 867a 412 413 414 288, 293, 295 288, 293, 295 288 289, 296 868 869 870 Part. 871 Adapted Part. 872 Part. As to affidavits Subd. 6 872 872 122 123 873 Rewritten and cov- ered by 291, 293, 294, 306 299 874 875 Omitted. 876 877 First two sentences 297 298 302 127, 128 Last sentence. 879 880- Part. 880 Rewritten and cov- ered by 129, 132 Part. 881 303 304 305 882 First sentence. 883 883 Rewritten 129 Part. 884 Omitted. 885 First sentence re- written 307 885 120 886 300 288 288 293, 308 887 Rewritten and cov- ered by Last sentence. 888 Part. 889 Omitted. 890 890 First sentence Last sentence Covered by 302 125 Last sentence. Omittod, see Civ Prac Art 891 § 291.' ' ' 891 126 Part 892 Omitted. GLEVENGEB'S TABLES OP PRACTICE ACTS 422 Code of Civil Procedure, §§ 892-921 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 892 892 Second sentence.. . Third and fourth sentences Section Rule 126 130 Fifth sentence. Subds. 6 and 7. 893 Rewritten and cov- ered by Rewritten and cov- ered by 298, 302 294, 298, 302 Part. 894 Part. 895 Omitted. 896 Rewritten and cov- ered by 294 294 294 290, 301 897 Part. 898 899 Except last sen- tence Last sentence as to notice . . 899 121 Last part. 900 First and second sentences Except last sen- tence . . . 129 302 First sentence. 900 900 900 Last sentence 128 Third sentence, part. Justice Court Act, § 206- 901 Paragraph two, last sentence . . . 129 130 128 Par. 1, last sentence. 901 Part Except subd. 4. 901 901 Last sentence Third sentence, part. Justice Court Act. § 207. 902 130 Subd. 4. 902 Justice Court Act, § 208. 903 Justice Court Act, § 209. 904 isi 131 131 131 Subd. 1.. 905 Subd. 2. 906 Subd. 3. 907 Subd. 4. 908 First sentence cov- ered by Second sentence covered by 298 First sentence. 908 909 125 132 133 First sentence. Last two sentences. 910 910 304 Part. 910 Justice Court Act, § 212. 911 304 305 Part. Last sentence 911 911 129 Last paragraph. Justice Court Act, § 213. 912 Omitted. 913 309 310 311 312 366 914 915 919 921 423 DISTRIBUTION TABLE Code of Civil Procedure, §§ 922-961=f Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 922 Section 367 368 368 369 370 371 372 373 374 374 377 378 390 380 382 383 384 384 386 Rule 923 Subd. 1. 924 Subd. 2. 925 926 927 928 929 930 Subds. 1, 4. 931 Subds. 2, 3. 931a 931b 931c 932 933 934 935 Subds. 1, 2. 936 Subds. 3, 4. 937 938 Justice Court Act, § 471. 939 387 387 388 381 391 399 375, 400, 401 402 392 393 394 394 394 394 395 396 397 389 398 329 330 330 335 Subd. 1. 940 Subds. 2, 3. 941 941a 942 943 944 945 946 947 948 Subd. 1. 949 Subd. 2. 950 Subd. 3. 951 Subd. 4. 952 953 954 955 956 957 958 First two sentences. 959 960 961 Surrogate's Court Act, § 20, subd. 10, last part; § 22, last sentence. 961a 334 331 336 332 376 375 961b 961c 961d 961e 961f CLEVENOER'S TABLES OF PRAOTICE ACTS 424 Code of Civil Procedure, §§ 962-990 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 962 Section 344 421 422 Rule 963 Repealed by Laws 1921, ch. 372. Omitted. 964 First sentence Except first sen- tence 964 964 106-111 965 Issue of fact cov- ered by.. 423 965 Issue of law omit- ted, gee .... 106-111 966 Adapted 443 443 Subd. 1. 967 First sentence Last 8 ntence Subd. 2. 967 Omitted. 967 See Rules of Civil Practice 968 425 427 429 430 430 443 424 106-111. 969 Part as to issue of fact ... . 970 971 First sentence. 972 Last sentence 973 Subd 3 974 975 976 First sentence as to issue of fact .... Second sentence . . . Except last sen- tence 432 § 423, last sentence, which covers Code, § 975, was omitted by amendment of Laws 1921, ch. 372. 976 977 158 150, 151 See Rules 106-111. 977 Last sentence 978 Omitted 979 Omitted. 980 Except last sen- tence 433 980 Last sentence Omitted. 981 ieo First paragraph. 982 Except last sen- 183 982 Last sentence 982a Real Property Law, § 536. 983 184 182 186 984 985 986 146 987 187 188 988 989 U1 990 185 425 DISTRIBUTION TABLE Code of Civil Procedure, ,§§ 991-1019 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 991 Section 182-188 Rule 991 146, 147 992 444 444 584, 608 445 446 583 575, 576 575 "549,' 575 550 Subds. 1, 2, 3. 993 Subd 4. 994 995 996 997 9"i7 998 First sentence Last clause First clause 221 Par. 1, except last clause. 998 S99 221 Par. 1, last clause. 1000 First sentence Last three sen- tences 1000 220 1001 447, 551 552 553 1002 1003 First sentence and second sentence, first clause Second sentence, last part covered by 1003 106 221 1003 1004 Last sentence 556 554 Par. 2. 1005 Except first clause . First clause 1005 203 1006 555 1007 223 1008 428 426 1009 1009 Surrogate's Court Act, § 67, last sentence. 1010 Part as to issue of fact 442, 1485 464 465 466 431 467 1011 1012 1013 1014 First sentence Last sentence 1014 Omitted 1015 1016 Except second sen- tence 171 1016 Second sentence covered by 357 469 469 1017 Second sentence. Except sixth sentence. See Civil Practice Rules 106-111. Subd. 3. 1018 Part as to issue of fact 1018 Issue of law 1019 Part as to issue of fact 470 OLEVENGER'S TABLES OF PRACTICE ACTS 426 Code of Civil Procedure, §§ 1019-1177 Code of Civil Procedure Section 1019 1020 1021 1021 1022 1023 1024 1025 1026 1055 1063 1064 1065 1066 1067 106S 1069 1070 1071 1163 1164 1165 1166 1166 1167 1168 1169 1170 1171 1171 1172 1172 1173 1174 1174 1175 1176 1176 1177 As to issue of law. As to issue of fact . As to issue of law. Except part last sentence Covered by . Second and third sentences General provisions adapted General provisions adapted Last clause. Last clause. Civil Practice Act Section 435 441, 470 440, 470 439, 471 468 449 449 448, 455 456 453 Rules of Civil Practice Rule 172 Portion of section or rule, or other statement of disposition See Civil Practice Rules, 106-111. Subd. 1. See Civil Practice Rules, 106-111. Subd. 1. First three sentences. First paragraph. Last paragraph. Judiciary Law, § 537. First two sentences. Judiciary Law, § 749a. Judiciary Law, § 749b. Judiciary Law, §§ 538a, 749o. Last three sentences. Judiciary Law, § 749d. Judiciary Law, § 749e. Judiciary Law, § 749f. Judiciary Law, § 749g. Judiciary Law, § 741. Judiciary Law, § 742, first sentence. Judiciary Law, § 742, last sentence. Justice Court Act, § 239. Judiciary Law, § 743, first sentence. Judiciary Law, § 743, second sentence. Judiciary Law, § 743, last sentence. Judiciary Law, § 744. Judiciary Law, § 745. Surrogate's Court Act, § 70, par. 2. Judiciary Law, § 746. Surrogate's Court Act, § 70, par. 2. Judiciary Law, § 747. Judiciary Law, § 748. Judiciary Law, § 749. Justice Court Act, § 235. Subd. 1. 427 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1178-1223 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1178 Section 453 454 Rule Subd. 2. 1179 1179 Part as to Justice Courts Justice Court Act, § 236. 1180 450, 452 463 457, 462 460 435 461 458 459 585 459 495 423 1180 Except third sen- tence, part Justice Court Act, §§ 237, 1181 238. 1182 1183 1184 1185 1186 1187 Except last sentence. 1188 1189 1189 First sentence Last sentence First sentence Last sentence 165 First sentence. 1190 1190 1191 164 Except last clause. Judiciary Law, § 740. 1200 472 1202 201 Second sentence. 1203 Omitted. 1204 474 474 479 Subd. 1. 1205 Subd. 2. 1207 1208 Omitted. 1209 482 478 481 1210 1210 First sentence Last sentence 186 1211 1211 First sentence Justice Court Act, § 277. 1212 486, 489 487 489 49i 490 493 1213 1214 First sentence Second sentence . . . Last sentence 1214 1214 189 1215 1216 First sentence Except first sen- Subd. 1. 1216 192 1217 First paragraph and subd. 1 493 492 Subd. 2. 1217 1218 Except subd. 2 . . . . 192 Subd. 2. 1219 190 195 196 1220 96 1221 1222 1223 469 Last par. CLBVEMOER'S TABLES OF PRACTICE ACTS 42S Code of Civil Procedure, §§ 1223-1263 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section cr rule, or other statement of disposition Section 1223 1224 First sentence Section 496 Rule 197 1225 194 199 1226 1227 499 470 1174 1228 First sentence Last sentence Subd. 2. 1228 1229 198 1230 187 188 222 1231 1232 1233 First clause 495 ■ 495 480 1234 1235 1236 202 202 1237 Subds 2. 3 4 and 6. 1238 Subd 1 1239 1239 First sentence Last sentence 503 504 505 506 Subd. 8. 1240 1241 1242 Except last sen- tence, last part . . Last sentence, last part 1242 Omilted 1243 507 508 1244 1245 County Law, §§ 171, 172. New York City Court .\ft, §9. County Law, § 173. 1245 First two sentences 1245a 1246 501 1246 New York City Court Act, § 10, except last par. 1247 502 1247 New York City Court Act, § 10, last paragraph. Judiciary Law, § 2o5a. Judiciary Law, § 2o5b. 1248 1249 1250 509 510, 511 512 513 514 515 516 517 518 519 530 532 533 534 1251 1252 1253 1254 1255 1256 1257 1258 1259 1260 1261 1262 1263 429 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1264-1302 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1264 Section Rule 204 1265 535 536 537 538 539 509-516, 530, 532-539 540 541 543 1266 1267 1269 1270 1272 1273 1274 1275 Except first sen- tence, part, and third sentence, part 1275 First sentence, last part New York City Court Act, § 18, subd. 4. 1276 544 545 542 546 547 548 521 522 523 524 525 526 526 526 527 528 528 529 1277 1278 1279 1280 1281 1282 1283 PS4 1285 1286 Subd. 4. 1287 Subds. 1, 2 1288 Subd 3 1289 1290 First paragraph. Last two paragraphs. 1291 1292 1293 OmittpH 1294 557 561 ' ' ■ '557 Subd 1 1295 1295 Surrogate's Court Act, § 290. Subd 2 1296 1296 Surrogate's Court Act, § 291. Subd 3 1297 557 572 578 Surrogate's Court Act, § 292. 1298 1298 Surrogate's Court Act, § 307. 1299 579 1299 Surrogate's Court Act, § 308. First two sentences. 1300 562 562 1301 1301 Surrogate's Court Act, § 295. 1302 563 CLEVENGEB'8 TABLES OF PRACTICE ACTS 430 Code of Civil Procedure, §§ 1302-1340 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1302 Section Rule Surrogate's Court Act, § 29C. 1303 107 1303 Surrogate's Court Act, § 297. 1304 659 569 1305 1305 Surrogate's Court Act, § 302. 1306 564 1306 Surrogate's Court Act, § 303. 1307 567 1307 Surrogate's Court Act, § 304. Part. 1338 149 1308 Surrogate's Court Act, § 305. 1309 161 1309 Surrogate's Court Act, § 306. 1310 573, 574, 591 689 568 570 571 577 580 106, 584 560 497 633 498 498 586, 587 582 1311 1312 1313 1314 1315 1316 1317 1318 1319 1320 1321 Subd 1 1322 Subd 2 1323 1323a 1324 Omitted 1325 592 593 149 594 595 596 597 598 599 600 56 151, 566 1326 1327 Part 1328 1329 1330 1331 1332 1333 1334 1335 1335 Last three sen- tences Justice Court Acl. ? 4"!n 1336 590 589 604 602 601 607 6 2 1337 Subd. 3, second clan-sa. 1338 1339 1339a 1340 Part 623, 624 431 DISTRIBUTION TABLE Code of Civil Procedure, ,§§ 1341-1376 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement •of disposition Section 1341 Section 625 622 626 627, 628, 630 621, 629 608 Rule 1342 Part. 1343 1344 1345 1346 1346 New York City Court Act, 1347 609 §68. 1347 Adapted New York City Court Act, 1348 First sentence 66, 132, 610, 613 611 §70. New York City Court Act, 1348 §71. 1349 1349 New York City Court Act, 1350 603, 619 612, 614 615 616 §69. 1351 1352 1353 1354 202 Subds. 5, 7. 1355 617, 621 631 631 580 632 634 631, 634 636 637 1356 Subds. 1, 3. 1357 Subd. 2. 1358 First senteuoe. 1359 1360 1361 1362 1363 1363 Justice Court Act, § 284. 1364 635, 638 648 640, 685 1365 1366 Except last sen- tence 1366 Omitted. 1367 641 1367 Justice Court Act, § 280. 1368 642 643 645 646 647 644 1369 1370 1371 1372 1373 1373 Part as to chattel Justice Court Act, § 118, first three sentences, § 283. 1374 649 650 651 1375 1376 CLEVENQER'H TABLES OF PRACTICE ACTS 432 Code of Civil Procedure, §§ 1377-1413 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1377 Section 652 653 654 655 656 657 658 660, 695 Rule 1378 1379 13S0 1381 1382 1383 1384 1384 Justice Court Act, § 289. 1385 661 1385 Justice Court Act, § 290. 1386 662 1386 Justice Court Act, § 291. 1387 663 1387 Justice Court Act, § 292. 1388 639 664 665 665 666 667 1389 1390 Subds. 1, 2, 3, 4, 5, 6. 1391 Subd. 7, § 684. Justice Court Act, § .300. 1391 Except first sen- tence, adapted . . 1392 1393 Except last clause. Last clause. . 1393 Tax Law, § 4, subd. 5. 1394 668 670 670 671 672 673 674 675 676 677 678 669 1395 Par. 1, subJs. 1, 2, 3. 1396 Last paragraph. 1397 1398 1399 1400 1401 1402 1403 1404 1404a As to execution. . . . 1404a Personal Property Law, §250. 1405 679 1405 Justice Court Act, § 293, 1406 680 681 682 1407 1408 1408 Justice Court Act, § 286. 1409 683 1409 Justice Court Act, § 294. 1410 686 1410 Except last clause adapted Justice Court Act, § 295. 1411 687 1411 Justice Court Act, § 296. 1412 688 1412 Justice Court Act, § 297. 433 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1413-1463 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1413 Section 690 691 692 693 694 696 697 698 699 700 701 702 703 704 705 706 Rule 1414 1415 1416 1417 1418 1419 1420 1421 14"'2 1423 1424 1425 1426 1427 1428 1428 Justice Court Act, § 293. 1429 707 70S 709 710 711 712 713, 715 714 715 716 717 718 7i9 720 721 722 723 721 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 1430 1431 1432 1433 1434 1435 1436 1437 First three sentences. 1438 1439 1440 First two sentences. Last sentence 1440 Omitted — unconstitutional 1441 1442 1443 1444 1445 1446 1447 1448 1449 1450 1451 1452 1453 1454 1455 1456 1457 1458 1459 1460 1461 1462 1463 741 CLEVENGER'S TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 1464-1512 434 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1464 Section 742 743 744 745 746 747 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 Rule 1465 1466 1467 1468 1469 First sentence. 1470 1471 1472 1473 1474 1475 Except last sen- 1475 Last sentence Omitted. 1476 1477 1478 1479 1480 1481 1482 1483 1484 1485 1486 1487 1488 14i8 Justice Court Act, § 303. 1489 766 767 768 769 770 771 772 990 990 991 992 1490 1491 1492 Subd 1 1493 1494 1495 1496 1497 1498 1499 1499 First clause Except first clause . Omitted 1500 993 994 996 996 997 998 999 1000 1001 1002 1003 1501 1502 First two sentences. Last sentence. 1503 1504 1505 1506 1507 1508 1509 1510 210 55 1511 1512 Par. 2. first senteTK^e. 435 DISTRIBUTION TABLE Code of Civil Procedure, ,§§ 1513-1560 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1513 Section Rule Omitted. 1514 55 Par. 2. last sentence. 15J5 1004 1516 1517 1005 1006 1 IS I'^xcrpt second sen- tence, first clause 1519 241 1520 1007 1521 1522 1523 1524 1009 1010 1526 1529 1531 1011 1011a 1012 1014 1015 202 1531a 1532 1533 1534 1535 1536 1537 1016 1017, 1018, 1019, 1044 1045, 1046 1047, 1048 1021, 1074 lOl-l 1035 1538 1539 Subd. 1. 1540 Subd. 2. 1541 52 245 Last paragraph. Except last sentence. 1542 1543 1022 1023 1544 1545 246 1546 1024 1025 1026 1024 81, 126 1027 1028 1029 1030 1031 1032 217 1033 1034 1036 506 Except last part of last sentence. 1547 1548 1549 Last sentence, last part. 1550 1551 1552 1553 1554 1555 1556 1557 Last sentenca. 1558 1559 1560 Part. CLEVENGER'8 TABLES OF PRACTICE ACTS 436 Code of Civil Procedure, §§ 1560-1598 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1560 Section 1037 1038 1039 1040 1041 1042 1043 1049 1050 1051, 1052 1053 1054 1055 1056 1056 1056 1057 1058 1059 1060 1061 1063 1064, 1066, 1067, 1068, 1069 1070 1071 1072 Rule 1561 1562 1563 1564 First and last sen- tences 1564 1565 Except first and last sentences . . . 248 15C6 1567 1568 1569 1570 1571 1572 1573 1574 1575 1576 1577 1578 1579 1580 1581 1582 1583 1584 1585 1586 1587 1073 192 1588 Last sentence, part. 1588 251 1589 1075 1590 Real Property Law, § 590. Real Property Law, § 5' 1 1 . Real Property Law, § 5112. Real Property Law, § 593. 1591 1592 1593 1594 First sentence Second sentence, first clause Second sentence, last clause and third sentence. . . Last two sentences . 1020 221 259 1594 1594 First sentence, part last sentence. Public Lands Law, § 19. 1594 1595 1076 1596 Real Property Law, § 4G0. Re:il Property Law, § 461. Real Property Law, § 4G2. First sentence. 1597 1598 ::::::: i 1598 221 '.'..'.'.'.'.'.'. 437 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1598-1637 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1598 1599 1600 1601 1602 1603 1604 1605 1606 1607 1608 1609 1610 1611 1612 1613 1614 1615 1616 1617 1618 1610 1620 1621 1622 1623 1624 1625 1626 1627 1627 1627 1627 1627 1627 1627a 1628 1629 1630 1631 1632 1633 1633 1633 1634 1635 1636 1637 Section 259 Rule 81, 126 1082 Except subd. 2, last 2 sentences, and subd. 3 221 259 1079 1083 Subd. 2, last two sentences Subdivision 3 i679 1078 1077 1080 1085 First two sentences. Except first three sentences Third sentence. . . . i088 1081 1084 1086 1086 255 261 First part, last Real Property Real Property Real Property Real Property Real Property Real Property Real Property Real Property Real Property sentence. Law, § 463. Law, Law, Law, Law, Law, Law, Law, Law, Real Property Law Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law, Real Property Law Real Property Law, Real Property Law, §464. §465. §466. §467. §468. §469. §470. §471. §472. §473. §474. §475. §476. §477. §478. §479. §480. §48L §482. §483. § 484. § 4.S5. § 4S7. §488. §490. First sentence. First sentence; pt. last sen- tence. First two sentences. Public Lands Law, § 19. Executive Law, § 69-a. Last two sentences. Surrogate's Court Act, § 250. Subd. 1. Subd. 2. GLEVENGER'S TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 1638-1680 438 Code of Civil Procedure Civil Practice Act Rules ' of Civil Practice Portion of flection or rule, or other statement of dispoeition Section 1638 Section Rule Real Property Law, § 500. 1639 Real Property Law, § 501. 1640 Real Property Law, § 502. 1641 Real Property Law, § 503. 1642 Real Property Law, § 504. 1643 1644 Real Property Law, § 506. 1645 Real Property Law, § 507. 1646 Real Property Law, § 508. 1647 Real Property Law, § 509. 1648 Real Property Law, § 510. 1649 Real Property Law, § 51 1. 1650 Real Property Law, § 512. 1651 Real Property Law, § 520. 1652 Real Property Law, § 521. 1653 Real Property Law, § 522. Real Property Law, § 523. 1654 1655 Real Property Law, § 524. 1656 Real Property Law, § 525. 1657 1658 Real Property Law, § 527. Real Property Law, § 528. Real Property Law, § 529, first sentence. Real Property Law, § 529, second sentence. Real Property Law, § 529, third sentence. Real Property Law, § 529, fourth sentence. Real Property Law, § 530. Real Property Law, § 531. Real Property Law, § 532. Real Property Law, § 533. Real Property Law, § 534. Real Property Law, § 535. 1659 1660 1661 1662 1663 1664 1665 1666 1667 1668 1669 1670 120 121, 124 988 122 125 123, 124 985 1062, 1087 1671 1671a 1672 Except last sen- 1672 Last sentence County Law, § 161, subd. 2 and § 240, subd. 1. 1673 1674 1675 1676 1676 Real Property Law, § 486. 1677 500 986 987 995 1678 1679 1680 1680 Real Property Law, § 491. 439 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1681-1708 Code o' Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Gection Section 981 982 ■ 983 984 1008 Rule 1682 1683 1684 16S5 1685 Real Property Law, § 489. Omitted. 1686 1687 Covered by 258 9S9 313 314 315 316 Last paragraph. 1688 16S8a lessb 16SSc 16S8d 16SSe 138 16SSf 317, 318 319 320 321 16S8g 168Sh 1688i 1689 Omitted. Civil Practice Act, 1689 §258. Justice Court Act, § 93. 1690 1089 1690 Justice Court Act, § 90. 1691 1090 1691 Justice Court Act, § 91. 1692 1091 1C92 Justice Court Act, § 92. 1693 1092 1094, 1095 1096 1694 1695 Subds. 1, 2, 4, 5, 6, 7. 1695 Justice Court Act, § 95. 1696 1096 1096 1097 Subd. 3. 1697 1697 Part first par. Ju tice Court Act, § 96. 1698 1098 1099 1699 1609 Justice Court Act, § 97. 1700 1.100 lioo First two sentences. 1700 First sentence Justice Court Act, § 100. 1701 1701 Justice Court Act, § 101. 1702 1101 1702 Justice Court Act, § 103. 1703 1102 1103 1704 1704 Except last para- 1705 1104 1105 iioa 1105 1706 1707 tences. 1708 Third sf^ntence, CLEYENGER'H TABLES OF PRACTICE ACTS 440 Code of Civil Procedure, §§ 1709-1746 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1709 Section 1107 Rule 1709 Justice Court Act, § 107. 1710 1108 1710 Justice Court Act, § 103. 1711 1109 1711 Justice Court Act, § 109. 1712 1110 1712 Justice Court Act, § 98. 1713 1111 1112 1113 1114 1115 1714 1715 1716 1717 First clause Last clause 1717 273 1718 iiie 1117 1719 First sentence Last sentence 1719 Omitted. 1720 270 271 1721 1722 First sentence Last sentence 1118 1722 Omitted. 1722 Justice Court Act, §111. 1723 1093 1724 272 1725 First sentence Last sentence 1119 li20 1121 1725 1726 Justice Court Act, § 115. 1727 1727 Justice Court Act, § 116. 1728 Except first sen- tence, last clause. First sentence, last 1122 1728 Omitted. 1729 1123 1124, 1125 1730 1730 Except last sen- Justice Court Act, § 117. 1731 1126 1731 Justice Court Act, § 118. 1732 1127 1732 Justice Court Act, § 119. 1733 1128 1733 Justice Court Act, § 120. 1734 1129 1734 Justice Court Act, § 121. 1735 1130 1735 Justice Court Act, | 122. 1736 1131 1132 1133 1134 1136 1743 1744 1745 1746 441 DI8TR1B0TI0N TABLE Code of Civil Procedure, §§ 1747-1779 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1747 Section 1137 1138 1135 1139 1140 1141 1142, 1143 1146 ii44 1145 1147 1148, 1149, 1150, 1151, 1152 1153 1154, 1155, 1156 1157, 1158 1160 Rule 1748 1749 1750 1751 1752 1753 1754 1755 1755 First sentence Second sentence . . . Last sentence 276 1755 1756 1757 1758 1759 1760 1761 1761 Domestic Relations Law, -^ 3. 1762 1161 1162 1763 1764 280 1765 1163 1164 1165 1166 1169, 1173 1168 1170 1159 1171 1172 1167 1175 1176 1766 ■ 1767 1768 1769 1770 1771 Except last sen- tence 1771 Last sentence 1772 1773 1774 First sentence Second sentence . . . Third and sixth sentences Fourth and fifth sentences First sentence Last sentence 1774 1774 53 Subd. 10. 1774 1775 1775 93 Subd. 1. Omitted. 1775 Justice Court Act, § 170. Subd. 2. 1776 93 1776 Justice Court Act, § 253. Subd. 3. 1777 93 1777 Justice Court Act, § 171. 1778 1778 First sentence Last sentence 252 86 1779 General Corporation Law, §45. CLEVENGEB'8 TABLEiS OF PRACTICE ACTS 442 Code of Civil Procedure, §§ 1780-1858 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1780 Section Rule General Corporation Law, 1809 §§46,47. General Associations Law, 1812 ■ 10. 1813 General Associations Law, 1814 §11. Decedent Estate Law, § 140. 1815 Decedent Estate Law, § 141. 1816 Decedent Estate Law, § 142. 1817 Decedent Estate Law, § 143. 1818 Decedent Estate Law, § 144. 1819 Decedent Estate Law, § 146. 1820 Decedent Estate Law, § 147. 1821 Decedent Estate Law, § 148. 1822 Surrogate's Court Act, § 211. 1823 Decedent Estate Law, § 149. 1824 Decedent Estate Law, § 150. 1825 Decedent Estate Law, § 151. 1826 Decedent Estate Law, § 152. 1827 Decedent Estate Law, § 153. 1828 Decedent Estate Law, § 145. 1829 Decedent Estate Law, § 154. 1830 Decedent Estate Law, § 155. 1831 Decedent Estate Law, § 156. 1832 Decedent Estate Law, § 157. 1833 Decedent Estate Law, § 15S. 1834 Decedent Estate Law, § 159. 1835 1499 1499 1836 1836a 1837 Decedent Estate Law, § 170. 1838 Decedent Estate Law, § 171. 1839 1840 1841 Decedent Estate Law, § 174. 1842 Decedent Estate Law, § 175. 1844 1845 1846 Decedent Estate Law, § 179. 1847 Decedent Estate Law, § 180. 1848 1849 1850 Decedent Estate Law, § 183. 1851 1852 Decedent Estate Law, § 1S5. Decedent Estate Law, § ISiJ. Decedent Estate Law, § 187. Decedent Estate Law, § 188. Decedent Estate Law, § 189. 853 1854 1855 1856 1857 Decedent Estate Law, ^ lOO. 1858 Decedent Estate Law, § 191. 443 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1860-1901 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1860 1861 1862 1863 1864 1864 1865 1865 1866 1867 1869 1870 1871 1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1882 1883 1884 1885 1886 1887 1887 1888 1889 890 1891 1892 1893 1893 1894 1894 1895 1896 1896 1897 1898 1S9S 1899 1899 1900 1901 Section Rule Adapted . 1189 1190 1191 1192 1192 1193 1194 1195 1196 As to treasurer . 1179 'llSO 222 1181 1182 Decedent Decedent Decedent Decedent Decedent Surrogate par. 2. Surrogate Decedent Decedent Decedent Decedent Decedent Estate Law, Estate Law, Estate Law, Estate Law, Estate Law, 's Court Act, 's Court Act, Estate Law, Estate Law, Estate Law, Estate Law, Estate Law, ( 193. (200. .201. (202. i203. i 155, (143. I 204. .205. .206. .210. il94. First two sentences. Last sentence. Public Officers Law, §§ 20, 22, subds. 1, 2. Public Officers Law, § 23. Public Officers Law, § 24. Public Officers Law, § 25. Public Officers Law, § 26. Public Officers Law, § 27. Public Officers Law, § 20. Public OfEcers Law, § 20. County Law, § 153. Public Officers Law, § 20. Public Officers Law, § 20. Public Officers Law, §§ 20, 28. Public Officers Law, § 22. Public Officers Law, § 21. Justice Court Act, § 6. Justice Court Act, § 7. Justice Court Act, § 9. Justice Court Act, § 49. Justice Court Act, § 8. Code of Criminal Procedure, §5-a. Civil Rights Law, § 70. Civil Rights Law, § 71. CLEVENGER'S TABLES OF PRACTICE ACTS 444 Code of Civil Procedure, §§ 1902-1940 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1902 Section Rule Decedent Estate Law, § 131. Decedent Estate Law, § 133. Decedent Estate Law, § 132. Decedent Estate Law, § 134. 1903 1904 1905 1906 1906 First sentence Covered by 337 337 484 .45 160 1501 333 333 97 1907 §51. Subd. 1. 1908 Subd. 2. 1913 1914 1915 1916 1917 Subds. 1. 2. 1918 Subd 3 1919 1920 §§ 12, 13. 1921 § 14. 1922 §15. 1923 § 16, except last sentence. 1924 §17. General Associations Law, § 16, last sentence. 1925 1926 Omitted 1927 Omitted 1928 Omitted 1929 1930 1931 Omitted 1932 1197 1932 Justice Court Act, § 335. 1933 1198 1933 Justice Court Act, § 330. First sentence. Justice Court Act, § 338. Last .two sentences. Justice Court Act, § 339. 1934 1199 1934 1935 1199 1935 1936 1200 1936 Except last sen- tence Justice Court Act, § 337. 1937 1185 1937 Justice Court Act, § 340. 1938 1186 1938 Justice Court Act, § 341. 1939 1187 1939 Justice Court Act, § 312, 1940 1185 1940 Justice Court Act, § ,343. 445 DISTRIBUTION TABLE Code of Civil Procedure, §§ 1941-1989 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Spction 1941 Section 1188 Rule 1941 Justice Court Act, § 344. 1943 531 1945 Omitted. 1946 1201 1208,' 1210', 1217 1211, 1212 1221 1213 1213 1214 1209 1218, 1219 1215, 1216 1947 Partnership Law, § 75. 1948 1949 1950 1951 1952 Last sentence 1953 1954 1955 Except fourth sen- 1956 Except last sen- tence 1956 Last sentence State Finance Law, § 37. Public Lands Law § 138 1957 1958 Public Lands Law, § 139. Public Lands Law, | ISDa. Public Lands Law, § 139b. 1959 1960 1961 1177 1178 1962 1963 Omitted, covered by State Finance Law, § 37. 1964 1182 1184 1184 1222 1223 1224 1225 1226 1227 1228 1229 1965 1966 Last sentence* 1969 1970 1971 1972 1973 1974 1975 1976 1977 Public Lands Law, § 139c. Public Lands Law, § 139d. Public Lands Law, § 139e. Public Lands Law, | 139f. PubUc Lands Law, § 139g. 1978 1979 1980 19S1 1982 1183 1983 Omitted, see Civil Practirn 1984 1202, 1206 659, 1207 155, 1203 1220 1204 1205 Act, J 1571. 1985 1986 1983 Last sentence Executive Law, § 69. 1987 1988 1989 CLEVENGBR'S TABLES OF PRACTICE ACTS 446 Code of Civil Procedure, §§ 1990-2032 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 1990 Section 162, 820 Rule 1991 Omitted 1992 1236 1233 1236 1247 i236 1268 1239 Subd. . 1993 1994 Subds 2 3 1995 Except second clause 1995 Second clause Omitted. 1996 Subd 4 1997 1998 Subd. 1. 1999 Omitted 2000 1243 1243 1243 1242 1244 1244 1244 Subd 1 2. 2001 Subd 3 2002 Subd. 4. 2003 Except last sentence. Subd 1 2004 2005 Subd 2 2006 Subd 3 2007 Omitted 2008 Code Criminal Procedure, § 10c, subd. 1. 2008 415 416 417 418 2009 2010 2011 2011 Code Criminal Procedure, § 10c, subd. 4. 2012 103 2013 419 420 2014 2014 Code Crimiaal Procedure, § 10c, subd. 3. 2015 1230, 1235 1239 1242 1231 1232 1232 1234 1235 1237 1238 1239 1240 1241 1245 1246 1248 1249 1250 1251 1252 Subd. 3. Last sentence 2016 2017 Subds. 1, 2, 3. Last paragraph. 2018 2019 2020 First two sentences. 2021 2022 2023 Subd 2 2024 2025 2026 2027 2028 2029 2030 2031 2032 447 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2033-2080 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 2033 Section 1253 1254 1255 1256 257 1258 1259 1260 1261 1261 1262 1263 1264 1264 1265 1266 1267 1269 1269 1270 1270 1271 1271 1272 1273 1274 1275 1276 1277 1278 1279 1280 1281 1282 1314, 1315 1317 1318 1319 1321 1323 1324 1325 1330 1316, 1322 1326 1325 1327 1331 1329 Rule 2034 2035 2036 2037 2038 2039 2040 20 1 2042 Last sentence. 2043 2044 2045 2046 Last three sentences. 2047 2048 Except first sen- tence 2048 First sentence Omitted. 2049 2050 Subds. 1, 2, 3, 4. 2051 Last paragraph. 2052 2053 Last sentence. 2054 Part. 2055 Part. 2056 2057 2058 2059 2060 2061 2062 2063 2064 2065 2066 2067 2068 2069 2070 2071 Except last sen- tence .... . . . 2071 Last sentence Omitted. 2072 2073 2074 First and last sentences. 2075 2076 2077 2078 Second sentence. 2079 2080 CLEVENGER'8 TABLES OF PRACTICE ACTS 448 Code of Civil Procedure, §§ 2081-2124 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 2081 Section 1328 1332 1333 1334 1335 1336 1337 1338 1339 1340 1342 i343 1344 1345, 1351 1346, 1347 1347 1350 1352 1348 1349 1353 i354 1355 Rule 2082 2083 2084 2085 2086 2087 2088 2089 Except first sen- tence 2089 First sentence Omitted. 2090 2091 Except first sen- tence 2091 First sentence 2092 2093 2094 2095 2096 Last four sentences. 2097 2098 2099 2100 Except second sen- tence 2100 Second sentence . . . Omitted. 2101 2102 Except first sen- tence 2102 First sentence Om'tted 2103 Omitfpd 2104 2105 Omitted 2106 2107 OmitfpH 2108 2109 2110 2111 Omittpd 2112 OmiftpfJ 2113 2114 2115 2116 2117 2118 OmittpH 2119 2120 1284 1285 128S 1287 2121 2122 2123 2124 Omitted. 449 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2125-2257 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 212'5 Section 1288 1289 1290 1291 1292 1294 1295 1296 1299 1297 1298 1301 1302 1300 1303 1304 1305 1306 1307 1308 1309 ■ 1310 1311 1312 Rule 2126 2127 212S 2129 2130 2131 2132 2133 2134 2135 2136 2137 2138 2139 2140 2141 2142 2143 2144 2145 2146 2147 214S 2148a Omitted, see Civil Practice Act, § 111. 2231 1410 1411 1412 1413 1414, 1415 1416 1417 1418, 1419 1420 1421 1422 1423 1424 1425 1426 1427 1428 1429 ■1430 1431 1432 1433 1434 1435 1436 1437 1438 2232 2233 2234 Made general 2235 2236 2237 2238 2-"'30 2-^ JO 2241 2242 2243 2244 2245 2246 2247 2248 2249 2250 2251 2252 2253 2254 2255 2256 2257 CLEVENGEB'S TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 2258-2336 450 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 2258 Section 1439 1440 1441 1442 1443 1444 1445 1446 1447 Rule 2259 2260 2261 2262 2263 2264 2265 2265a 2302 Real Property Law, § 570. 2303 Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law Real Property Law §57L 2304 §572. 2305 §573. 2306 § 574. 2307 §575. 2308 §576. 2309 §577. 2310 §578. 2311 §579. 2312 §530. 2313 §58L 2314 §582. 2315 §583. 2316 §584. 2317 §585. 2318 §586. 23'9 §587. 2320 Except last sen- 1356 i357 1358. 1359 2320 2321 Last sentence 285 2322 2323 First sentence Except first sen- First sentence. 2323 286 2323a 1374 1374 1359 Subds. 1, 2, 3, 4, 5. 2323b Subd. 6. 2324 First three sen- tences Last sentence. 2325 287 2325 Last two sentences. 1360 1361 1363 1362, 1364 1365 81 1366 1367 1368 1369 1370 1371 1372, 1373 2325a 2326 2'>'^7 2;j2.S 2329 2330 2331 2332 2333 2334 2335 2336 451 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2336-2374 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 2336a Section 1374 1375 1376 1377 1.377 1378 1379, 1380 1381 1382 1383 1384 1385 1.386 1387 1388 1389 Rule Subd. 7. 2337 2338 2339 First par. Last par. 2340 2341 2342 2343 2344 First, second and fourth sentences. Third sentence. . . . 2344 Omitted. 2344a 2345 2346 2347 2348 2349 First two sentences. Third sentence. . . . Last sentence 2349 2349 2350 295 296 297 First par. and subds. 2 and 3. 2351 1391, 1392, 1393 1394 154 1395 1396 1397 400 1401 1402, 1408 1390 1403, 1405, 1407, 1409 1398 1399 1406 1448 1448 1449 1450 1451 1452 1453 1453 1454 1455 1458 1457 2352 2352 2353 Last sentence 40 41 Subd. 4; Subd. 3. 2354 2355 2356 2357 2358 2359 Except last sen- tence 2359 Last sentence Omitted. 2360 2361 2362 2363 2364 2365 Except first sentence. 2366 2367 2368 2369 2370 23 1 Last sentence. 2372 2373 2374 CLEVENOER'8 TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 2375-2446 452 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 2375 2376 2377 2378 2379 2380 2381 2382 2386 2387 2388 2389 2390 2391 2392 2393 2394 2395 2396 2397 2398 2399 2400 2401 2402 2403 2404 2405 2406 2407 2408 2408a 2409 2410 2412 2413 2414 2415 2432 2433 2434 2435 2436 2437 2438 2439 2440 2441 2442 2443 2411 2445 2446 Section 1458 1459 1460 1461 1462 1463 1464 1465 1469 Rule 773 774 778 779 780 781 782 7S3 784 785 786 7SS 790 7S9 792 Real Property Law, § 540. Real Property Law, § 541. Real Property Law, § ■'A2. Real Property Law, § 543. Real Property Law, § 544. Real Property Law, § 545. Real Property Law, § 546. Real Property Law, § 547, Real Property Law, § 548. Real Property Law, § 549. Real Property Law, § 550. Real Property Law, S ."ol. Real Property Law, § 552. Real Property Law, § 553. Real Property Law, § 554. Real Property Law, § 555. Real Property Law, § 556. Real Property Law, § 557. Real Property Law, § 558. Real Propert.y Law, § .559. Real Property Law, § 560. Real Property Law, § 561. Real Property Law, § 562. Real Property Law, § 563. Civil Rights Law, § 60. Civil Rights Law, § 61. Civil Rights Law, § 62. Civil Rights Law, § 63. Civil Rights Law, § 64. 453 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2447-2471 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 2447 Section 793 794 795 796 797 798 799 802 803 804 800 775 787 791 776 801 777 805 806 807 812 809 808, 810 813 811 Rule 2448 2449 2450 2451 2452 2453 2454 2455 2456 2457 245S 2459 24(i0 2461 2462 2463 2464 2465 2466 2467 2468 2469 2470 2471 CLEVBNGER'S TABLES OF PRACTICE ACTS 454 Code of Civil Procedure, §§ 2472-2524 Code section Civil Practice Act Surrogate's Court Act Portion of section or rule, or other statement of disposition Section 2472 Section Section 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 2473 2474 2475 2476 2477 2478 2479 2480 24S1 2482 2483 2484 2485 2486 2487 2488 2489 2490 2491 2492 Except last sentence. 2493 2494 2495 2496 2497 2498 2499 2500 Subd. 1. 2501 2502 2503 2504 2505 2506 2507 2508 2509 2510 2511 2512 2513 2514 2515 2516 2517 2518 2519 2520 2521 2522 2523 2524 455 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2535-2577 Code section CivU Practice Act Surrogate's Court Act Portion of section or rule, or other statement of disposition Section 2535 Section Section 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 2536 2527 2528 2529 2530 2531 2532 2533 2534 2535 2536 2537 2538 2539 2540 2541 2452 2543 2544 2545 2546 2547 2548 2549 2550 2551 2552 2553 2554 2555 2556 2557 2558 2553 2560 2561 2562 2563 2564 2565 2566 2567 2568 2569 2570 2571 2572 2573 2574 2575 2576 2577 GLEVENGER'H TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 2578-2630 456 Code section Civil Practice Act Surrogate's Court Act Section 2578 Section Section 108 2.579 109 2580 110 25S1 HI 2582 112 2583 113 2584 114 2585 115 2586 116 2587 117 2588 118 2589 119 2590 120 2591 121 2592 122 2593 123 2594 124 2595 125 2596 126 2597 127 2598 128 •^599 129 2600 130 2601 131 2602 132 2603 133 2604 134 2605 135 2306 136 2607 137 2608 138 2609 139 2610 140 2611 141 2612 142 2613 143 2614 144 2615 145 2616 146 2617 147 2618 148 2619 149 2620 150 2821 151 2622 152 2623 153 2 ('.24 154 26''5 155 2626 156 2627 157 2028 158 2629 159 2630 160 Portion of section or rule, or other statement of disposition Except second paragraph. 457 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2631-2682 Code section Civil Practice Act Surrogate's Court Act Portion of section or rule, or other statement of disposition Section 2C31 Section Section 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 .-S2 183 184 185 186 187 188 189 190 191 192 193 194 231 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 2R32 ■^633 2634 2635 2636 2637 2638 2639 2640 2641 2642 2643 2644 2645 2646 2647 264S 2649 2650 2651 2652 2653 2654 2655 2656 2657 2658 2659 2660 2661 2662 2063 2664 2664a 2665 2666 2667 2668 2669 2670 2671 2672 2673 2674 2675 2676 2677 2678 2679 . 268 2681 2682 CLEVENOER'8 TABLES OF PRACTICE ACTS 458 Code of Civil Procedure, §§ 2683-2735 Code section Civil Practice Act Surrogate's Court Act Section 2683 Section Section 213 2684 214 2685 215 2686 216 2687 217 2688 218 2689 219 2690 220 2691 221 2692 222 2693 223 2694 224 2695 225 2696 226 2697 227 1698 22 699 229 2700 230 ■2701 232 2702 233 2703 234 2704 235 2705 236 2706 237 2707 238 2708 239 2709 240 2710 241 2711 242 2712 243 713 244 2714 245 2715 246 2716 247 2717 248 2718 249 2719 251 2720 252 2721 253 2722 254 2723 255 2724 256 2725 257 272ii 25 2727 259 2728 260 2729 261 2730 262 27.il 263 2732 264 273:! L65 2734 266 2735 267 Portion of section or rule, or other statement of disposition 459 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2736-2771 Code section Civil Practice Act Surrogate's Court Act Portion of section or rule, or other statement of disposition Section 2736 Section Section 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 289 293 294 2737 2738 2739 2740 2741 2742 2743 2744 2745 2746 2747 2748 2749 2750 2751 2752 2753 2 54 2755 2756 2757 2758 Omitted, see Surrogtate'a 2759 298 299 300 301 309 310 311 312 313 314 315 316 317 Court Act, §§ 290-292; 295-297; 302-308. 2760 2761 2762 27.3 2764 2765 27(6 2767 2768 2769 2770 2771 CLEVENOER'S TABLES OF PRACTICE ACTS 460 Code of Civil Procedure, §§ 2861-2911 Code section Civil Practice Act Justice Court Act Portion of section or rule, or other statement of disposition Section 2861 Section Section 2 3 3 4 5 11, 12 14 15 16, 17, 18 10 19 20 21 22 23 24 44 45,46 48 51 52 53 54 55 56 57 58 32 35 36 33 34 215, 259 218 214 60 61 62 63 65 66 67 68, 69, 70 71 72 73 74 75 76 77 78,79 80, 102 81 2862 2863 Subd. 9; 2864 2865 2866 2867 2868 2869 2870 2871 2872 2873 2874 2875 2876 2877 2878 2879 Pt., 2880 2881 2882 2883 2884 2885 2886 2887 2888 2889 2890 2891 2892 2893 2894 2895 2896 2897 2898 2899 2900 2901 2902 2903 2904 2905 2906 2907 2908 2909 2910 2911 461 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2912-2950 Code section Civil Practice Act Justice Court Act Portion of section or rule, or other statement of disposition Section 2912 Section Section 82 83 84 85 86 87 88 S9 94 99 2913 2914 2915 2916 2917 2918 2919 2920 2921 2922 Omitted, see Justice Court 2923 104 105 106 110 112 113 Act, §§ 100-103. 2924 2925 2926 2927 Superseded by ... . 2928 2929 Omitted, see Justice Court 2930 114 Act, §§ 107-109. 2931 Omitted, see Justice Court 2932 123 124 125 Act, §§ 111,115,117-122. 2933 2934 First two sentences. Except first two sentences 2934 Omitted as local. 2935 126 129 150 43 2936 2936 2936 First sentence Second sentence . . . Third sentence, first part 2936 Third senteuc , last part 2937 130, 302 137, 151 Act, § 58. 2938 2939 First sentence Last two sentences. Omitted see Justice Court 2939 135 127 149 158 164 157 139 Act, § 132, pt. 2940 2941 2942 2943 2944 Covere 1 by 2945 Subd. 4. 2946 2947 140 141 64 267 Act, §§ 142, 143. :948 2949 2950 ••••••• • CLEVENGEK'S TABLES OF PRACTICE ACTH 462 Code of Civil Procedure, §§ 2951-2997-a Code section Civil Practice Act Justice Court Act Portion of section or rule, or other statement of disposition Section 2951 Section Section 172 173 174 175 176 177 178 179 180 181 182 183 184 18 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 202 203 204 205 2952 2953 2954 2955 2956 2967 2958 2F59 2960 2961 2962 2963 2964 2965 2966 2967 2968 2969 2970 2971 2972 2973 2974 2975 2976 2977 2978 2979 2980 2981 2982 2983 2984 2985 210 Act, § 207. 2986 2987 211 216 217 220, 224, 226 223, 225 Act, §§ 208, 209, 213. 2988 2989 2990 2991 2992 Omitted. 2993 227, 228, 229 230 231 232 233, 234 234a 2994 2995 2996 2997 Except last sen- 2997a 463 DISTRIBUTION TABLE Code of Civil Procedure, §§ 2998-3049 Code section Civil Practice Act Justice Court Act Portion of section or rule, or other statement of disposition Section 2998 Section Section 240 241 242 249 250 251 252 254 255 256 258 22) 261 262 263 268 269 270 271 272 273 272 2999 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 Part. 3010 3011 3012 3013 3014 3015 Except subds. 5, 6. 3016 3017 Part. 3018 3019 3020 Omitted. 3021 Except last sen- tence 337 274 275 278 281 282 285 287 288 3022 3023 3024 3025 3026 3027 3028 3029 3030 C-nitted. 3031 299 301 304 305 306 307 308 309 310 311 312 313 279 426 427 428 430 432 433 3032 3033 3034 3035 3036 3037 3038 3039 3040 3041 3042 3043 3044 3045 3046 3047 3048 3049 CLEVENOER'8 TABLES OF PRACTICE ACTS 464 Code of Civil Procedure, §§ 3050-3101 Code section Civil Practice Act Justice Court Act Portion of section or rule, or other statement of disposition Section 3050 Section Section 434 436 437 438 439 440 441 455 458 456 457 459 449, 450 451 453 454 452 452 442 443 444 446 445 447 314, 315 316 317 318 321 3051 3052 3053 3054 3055 3056 3057 3058 3059 3060 3061 3062 3063 3064 3065 3066 Part 3067 P^art 3068 General provisions. 3069 3070 3071 3072 3073 3074 3075 3076 3077 3078 3079 Omitted, see Justice Court Act, § 319. 3080 322 323 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 3081 3082 3083 3084 3085 3086 3087 3088 3089 3090 3091 3092 3093 3094 3095 3096 3097 3098 3099 3100 3101 465 DISTRIBUTION TABLE Code of Civil Procedure, §§ 3102-3158 Code section Civil Practice Act Justice Court Act Portion of section or rule, or other statement of disposition Section 3102 Section Section 365 366 367 368 369 370 371 372 373 374 375 376 377 378 3103 3104 3105 3106 3107 3108 3109 3110 3111 3112 3113 3114 3115 3121 Omitted. 3122 Omitted. 3123 3124 Omitted. 3125 Omitted. 3133 Omitted. 3134 3135 464 483 484 485 486 468 469 470 481 472 473 474 475 476 482 477 478 479 491 320 480 465 466 467 3136 3137 3138 3139 3140 3141 3142 3143 3144 3145 3146 3147 3148 3149 3150 3151 3152 3153 3154 3155 3156 3157 3158 GLEVENGER'S TABLES OF PRACTICE ACTS 466 Code of Civil Procedure, §§ 3159-3184 Code of Civil Procedure Section 3159 3160 3161 3162 3163 3164 3164a 3165 3166 3168 3169 3170 3171 3172 3173 3174 3175 3176 3177 3178 3179 3180 3181 3182 3183 3184 Civil Practice Act Section Rules of Civil Practice Rule Portion of section or rule, or other statement of disposition New York City Court Act, §80. New York City Court Act, §§ 65, 66, 79. New York City Court Act, §39. New York City Court Act, §40. New York City Court Act, §29. New York City Court Act, §42. New York City Court Act, §67. New York City Court Act, §57. New York City Court Act, §58. New York City Court Act, §4.3. New York City Court Act, §44. New York City Court Act, §59. New York City Court Act, §41. New York City Court Act, §30. New York City Court Act, §32. New York City Court Act, §60. New York City Court Act, §33. New York City Court Act, §61. New York City Court Act, §46. New York City Court Act, §47. New York City Court Act, §48. New York City Court Act, §49. New York City Court Act, §50. New York City Court Act, §51. New York City Court Act, § 52. New York City Court Act, §63. i67 DISTRIBUTION TABLE Code of Civil Procedure, §§ 3185-3225=a Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3185 Section Rule New York City Court Act, 3186 §54. New York City Court Act, 3187 §55. New York City Court Act, 3188 §56. Omitted. See New York 3189 First sentence Last sentence Except last sen- City Court Act, §§ 68 and 69. Omitted, see New York City 3189 Court Act, §§ 69-71. New York City Court Act, 3190 §72. New York City Court Act, 3190 Last sentence §73. New York City Court Act, 3191 §78. New York City Court Act, 3192 §74. New York City Court Act, 3193 §78. New York City Court Act, 3194 §75. New York City Court Act, 3194a §76. New York City Court Act, 3196 §77. Omitted. 3197 Omitted. 3198 3199 Omitted. 3200 Utica Court Act, § 35a. 3201 Utica Court Act, § 5a. 3202 Omitted. 3203 Omitted as obsolete. 3204 Omitted as obsolete. 3205 Omitted as obsolete. 3206 Omitted as obsolete. 3207 Omitted as obsolete. 3208 Omitted as obsolete. 3209 Omitted as obsolete. 3210 Omitted as obsolete. 3211 Omitted as obsolete. 3212 Omitted as obsolete. 3213 Omitted as obsolete. 3214 Omitted as obsolete. 3218 Omitted as obsolete. 3223 3224 Omitted as obsolete. 3225 3225a Omitted as obsolete. CLEVENGER'a TABLES OF PRACTICE ACTS 4&8 Code of Civil Procedure, §§ 3227-3258 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3227 Section Rule Rochester Charter § 524a. 3228 1470, 1471, 1472, 1473, 1474, 1475 1475 1476 1477 1479 1482 1482 1483 1484 1486 1489 1490 1491 1492 1494 1495 1496 1497 1498 1500 1481 1502 3229 Part. Part. 3230 3231 3232 (Repealed by L. 1921, ch. 372.) (Repealed, L. 1921, ch. 372.) 3233 3234 3235 3236 3237 3238 3239 3240 3241 3242 3243 3244 3245 3246 3247 3248 3249 Omitted, see Civil Practice Act, § 205. 3250 1503 1504 1509 1505 1507 3251 Subd. 1, 2, 3, part. Subd. 3, par. 8.... Subd. 3, par. 9. . . . Subd. 3, par. 10. . . Subd. 3, par. 11, Ft. Subd. 4 3251 3251 3251 3251 New York City Court Act, §64. 3251 1508 1510 1512 1513 1514 1515 1518 3251 Subd. 5 3252 3253 3254 3255 Part 3255 As to City Court, N. Y. City Except last sen- tence New York City Court Act, §63. 3256 3256 Last sentence, first part Insurance Law, § 182a. 3256 Last sentence, last part 385 1516 1517 3257 3258 469 DI8TRIBVTI0X TABLE Code of Civil Procedure, §§ 3258-3304 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3258 Section Rule Justice Court Act, § 319. 3259 1519 1511 1521 1532, 1533 1534 1535 1536 1537 1538 1522 1522 1522 1523 1524 3260 3261 3262 3263 3264 3265 3266 3267 3268 Paragraph 1, and subd. A. 3269 Subd. B, pars. 5-7. 3270 Subd. 8. 3271 3272 3272 Adapted Justice Court Act, § 315, pt. 3273 1525 3273 Justice Court Act, § 315, 3274 1526 part. 3274 3275 Except first sen- tence . . . 1527 1528 1529 1530 1531 191 1565 part. 3275 Except first sen- tence adapted . . . Justice Court Act, § 315, 3276 last two sentences. 3277 3278 3279 First clause Last clause 3279 Last sentence. 3287 3287 First sentence, last par and second sentence. County Law, § 178. 3288 1541 1564 146 147 1545 1546 1562 3292 3293 3294 3296 3297 3298 3298 Public Officers Law, § 68a. 3299 1550 1552 170, 1553 1553 1554 issi 3300 3301 3302 First paragraph Opening paragraph. County Law, § 174, opening paragraph. County Law, § 174, subd. 1. Subd. 1. 3304 Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 3 3304 3304 3304 GLEVENGER'S TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 3304-3320 470 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3304 Paragraph 3 Paragraphs, 4-8 . . . Paragraphs, 8-11.. Paragraphs, 11-13. Paragraphs, 13-21. Paragraph 21 Paragraph 22 Paragraphs 23, 24 . Paragraphs, 25-29.. Paragraph 30 Section i554 1554 Rule County Law, § 174, subd. 2. 3304 Subd. 2-6. 3304 Countv Law, § 174, subd. 3304 3-6. Subd. 7-9. 3304 County Law, § 174, subd. 3304 1554 7-15. Subd. 10. 3304 County Law, § 174, subd. 16. 3304 3304 1554 1554 County Law, § 174, subd. 3304 17-21. Subd. 12. 3305 Subd. 13. 3305 County Law, § 174, subd. 22. 3305a 1563 3305a Public Officers Law, § 66a. 3306 1555 3306 County Law, § 175. Subd. 11. 3306a 1554 1558 3307 Except subd. 18- 21. 3307 Subd. 18, 20,21... Subd. 19 County Law, § lS5a. 3307 Omitted. 3308 1558 1559 1560 1544 Part. 3309 3310 3311 Except last clause. Last clause 3311 Surrogate's Court Act, § 30, subd. 2. County Law, § 185b. Town Law, § 85, subd. 4. Omitted. 3312 As to deputy sheriffs, except last sentence .... As to constables, except last sen- tence 3312 3312 Last sentence 1542 3313 3314 As to grand jurors . As to trial jurors . . Code of Criminal Procedure, 3314 §267a Judiciary Law, § 749h. Judiciary Law, § 749i 3315 3316 1543 1551 i539 1540 1547, 1548, 1549 3317 Except last sen- 3317 Last sentence Surrogate's Court Act, § 287. 3318 3319 3320 Except third sen- tence, part Third sentence, part 3320 Surrogate's Court Act, § 286. 471 DISTRIBUTION TABLE Code of Civil Procedure, §§ 3321-3341 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3321 3322 3323 3324 3325 3326 3327 3328 3329 3330 3330 3331 ?331a 3332 3332 3332 3332a 3332a 3332b 3332b 3332c 3332c 3332d 3333 3333 3334 3334 3335 3335 3336 3336 3336 3337 3337 3338 3339 3340 3341 Section 1561 Rule 1567 1556 Subd. 1-10, 12-15, 17, 18, 20, 25, 32- 36, 39, part . . . Subd. 7-9, 11, 16, 19-26, 29-31, 33, 34, 36-38 1557 1556 ■■■'4 5 4 191 8 1574 1575 Justice Court Act, §§ 324, 325. Justice Coiirt Act, §§ 326, 333. Justice Court Act, § 327. Justice Court Act, § 328. Justice Court Act, § 329. Justice Court Act, § 330. Justice Court Act, § 331. Justice Court Act, § 332. See Civil Practice Act, § 1566. See also County Law, § 179. Omitted, see Civil Practice Act, § 1566. Judiciary Law, § 749j County Law, § 180. Justice Court Act, § 334. First paragraph. County Law, § 174, subd. 23. County Law, § 176. Paragraph 2. County Law, § 174, subd. 23. County Law, § 177. Second sentence. General Construction Law, § 11-a, first sentence. General Construction Law, §46a. First sentence. General Construction Law, § 11a, last sentence. See Civil Practice Act, § 6. See Code of Criminal Pro- cedure, § 6. General Construction Law, §18a. See Civil Practice Act, § 6. General Construction Law, §16a. Fir.st sentence. CLEVBNOER'8 TABLES OF PRACTICE ACTS Code of Civil Procedure, §§ 3342-3355 4T2 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3342 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3343 3344 3345 3346 3347 3347 3347 3348 3349 3350 3351 3352 3353 3354 3355 Section Rule 71 Subd. 2 Subd. 2 Subd. 3 Subd. 4 7 Subd. 5 7 Subd. 9 Subd. 9 Subd. 10 Subd. 10 Subd. 11 7 Subd. 11 Subd. 12 7 Subd. 13 7 Subd. 13 Subd. 14 7 Subd. 16 Subd. 18 7 Subd. 19, first sen- Subd. 19, last sen- tence. . . . Subd. 20 7 Subd. 20 Covered by 1 3 Subd. 7, last sen- Subd. 7, fourth sen- tence 1568 1569 Subd. 1 1569, 1573 Justice Court Act, § 463. General Construction Law, § 28a. General Construction Law, §26. Subd. 1. Subd. 2. .Justice Court Act, § 489. General Construction Law, §37a. Justice Court Act, § 490. General Construction Law, §25a. Subd. 3. Justice Court Act, § 487. Subd. 4. Subd. 5. General Construction Law, §26a. Subd. 6. General Construction Law, §20a. Subd. 7. General Construction Law, §53a. General Construction Law, § 33a. Subd. 8. General Construction Law, §20b. Omitted. See Civil § 1572. Practice Act, Code of Criminal Procedure, § 229k. Judiciary Law, § 749k. Part. Omitted. Code of Criminal Procedure, § 229k. Omitted. See Civil Practice Act, § 1576. Omitted, obsolete. 473 nTSTRTBVTTON TABLE Code of Civil Procedure, §§ 3356-3384 Code of Civil Procedure Civil Practice Act Rules of Civil Practice Portion of section or rule, or other statement of disposition Section 3356 Section Section 3357 Condemnation Law, § 1. 3358 3359 3360 Condemnation Law, § 4. 3361 Condemnation Law, § 5. 3362 3363 Condemnation Law, § 7. 3364 Cond mnation Law, § 8. 3365 3366 3367 3368 Condemnation Law, § 12, 3369 3370 except last sentence Condemnation Law, § 14. 3371 Condemnation Law, § 15. 3372 3373 Condemnation Law, § 17. Condemnation Law, § 18. 3374 3375 Condemnation Law, § 19. 3376 3377 a378 Condemnation Law, § 22. 3379 Condemnation Law, § 23. 3380 3381 Condemnation Law, § 25. 3332 Condemnation Law, § 26. 3383 3384 TABLE Showing Distribution of the General Rules of Practice to Civil Practice Act and Rules of Civil Practice General Rule of Practice Eule of Civil Practice Portion of rule or other statement respecting source ' Number 1 Number 1 15 11 71 72 73 26 80 25 27 6 7 201 162 56 4 31 2 Except last sentence Last sentence 3 First and second sentences Third sentence Last paragraph 4 First sentence 5 Second and third sentences Except last paragraph, covered by Last paragraph 6 7 8 Covered by First sentenco. 9 10 11 12 13 Civil Practice Act, § 821. 14 Superseded by 140 140 141 136 137 53 53 53 10 16 12 160 126 First sentence. 15 Superseded by Last sentence. 16 17 First paragraph 18 First paragraph, first and last parts First clause, as to notice . ... Subdivisions 2, 3. Subdivision 11, Last paragraph 19 Second sentence, as to indorsement Fourth sentence Last paragraph 20 21 Omitted. 22 105 88 88 87 61 23 Covered by 24 First paragraph Second paragraph 25 Except last sentence Omitted. 26 191 Except last sentence. Omitted 27 First sentence 74 28 Repealed, 1910 29 161 30 Civil Practice Act, § 469, first paragraph, last sentence. Last paragraph 170 224 157 221, 230 220 230 233 31 32 Second, third and fourth sentences Last sentence, covered by Last paragraph 474 475 GENERAL RULES Table Showing Distribution of the General Rules, Etc. — Cont'd General Rule of Practice Rule of Civil Practice Portion of Rule or other statement respecting source Number 33 Number 231 232 239 34 Except second paragraph, last two Bentences Second paragraph, last two sen- tences 35 Repealed, 1910 36 First two sentences 156 Third sentence Civil Practice Act, § 138, subdivision 19. Omitted. Last sentence 37 First sentence, first part, covered by First sentence, last part, and sec- ond and seventh sentences Third and fourth sentences Fifth sentence 60 66 ""iss 62 63 64 Omitted. Sixth sentence Subdivision 5. Last four sentences 3S First two paragraphs Last paragraph 63 237 39 Third paragraph and fourth para- graph, first two sentences Remainder of rule Broadened. 40 65 234 232 236 235 Except last sentence. 41 Except last parasraph Last paragraph Third paragraph. 42 43 44 Omitted 45 200 5 46 47 Except last paragraph Omitted. Last paragraph 2 145 48 First paragraph Last paragraph Omitted aa covered by Civil Practice Act, § 187, sub- division 3. Subdivisions 1, 2, 3. 49 40 40 42 43 41 41 290 291 292 297 298 41 50 First sentence Second sentence, first part Second sentence, last part, and last sentence First sentence. First paragraph. Subdivision 1, part. 51 First paragraph Second paragraph 52 53 54 55 Opening paragraph, and sub- divisions 1, 2, 4, 5. 56 57 Covered by 58 First sentence Civil Practice Act, § 1404. Last two sentences 300 299 32 256 59 First paragraph Last paragraph First paragraph. 60 First paragraph GLEVENGER'8 TABLES OF PRACTICE ACTS 476 Showing Distribution of the General Rules, Etc. — Concluded General Rule of Practice Rule of CivU Practice Portion of rule or other statement respecting source Number 60 Second paragraph and third para- graph, first sentence Number 257 258 259 261 265 61 Last sentence First paragraph Last paragraph, except last sen- tence Except last sentence. Last sentence Part. 62 Omitted. 63 266 262 265 263 64 First sentence Except last sentence. Second sentence Part. 65 Except last clause Civil Practice Act, § 1013. Last sentence. Last clause 245 247 250 260 249 66 Except last sentence Last sentence 67 68 As to action for foreclosure As to action for partition State Finance Law, § 44-f. Fourth sentence 69 First clause 32 33 32 34 33 32 30 243 288 281 277 282 278 275 Remainder of first sentence Third and fourth sentences Filth seotence 70 Refers to American Experi- ence Table of Mortality. Refers to American Experi- ence Table of Mortality. As to dower 71 72 73 Third paragraph, first sentence. . . Last sentence. 74 See Civil Practice Act, § 1168. 75 279 283 282 278 283 175 177 176 172 173 178 179 180 122 2 76 First sentence First paragraph. First paragraph. Last paragraph. Second sentence superseded by. . , Last sentence 77 78 Last paragraph 79 Last sentence 80 First sentence 81 82 Superseded by 83 84 85 238 Rule 2. 86 Omitted. SOURCE TABLE CIVIL PRACTICE ACT Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1 Section New; see § 3344, omitted as covered New. 2 3 3345 3333, 3335 3334 4 5 s See code §§ 3336, 3337 and Code 7 3343 3339 1899 414 415 391 390-a 407 410 398 399 400 401 402 403 403 405 406 411 412 404 408 409 413 362 363 364 365, 366 368 367 369 370 371 372 373 374 375 376, 378 377 379 Crim. Pro., § 6. First paragraph and subds. 4, 5, 11, 8 12, 13, 14, 18, 20; subd. 9 new. 9 10 Subds. 2 and 3 omitted as tempo- 11 rary. 12 13 Except last sentence which is 14 omitted as unnecessary. 15 16 17 Broadened. 18 19 20 21 First two sentences. 22 Except first two sentences. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 477 CLEVENGER'S TABLEH OF PRACTICE ACTS Civil Practice Act, §§ 47-93 478 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 47 Section 380, 381 380, 382 380, 383 394 380, 384 380, 385 387 388 389 390 386 392 393 395 396 397 1,4 7 217 235 1348 340 341 348 355 3342 347 342 348 349 356 241 26 25 827 48 49 49 Except subd. 4 Subd. 4 50 51 52 53 54 55 56 unnecessary. 57 58 Amended to express apparent meaning. 59 60 61 62 Section 220 repealed without re- enactment. 63 64 65 Amended 66 Last clause 67 68 69 First sentence 70 71 72 73 First two sentences 74 75 76 77 78 79 80 81 New; see code §§ 1550, 1608, 2329. Except last clause omitted as un- necessary. 82 755 756 757 758 759 760 761 764 766 766-a 762 44 62 83 84 85 86 87 88 89 90 90-a 91 92 93 479 SOUJtCB TABLE Civil Practice Act, §§ 94-125 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 94 95 96 97 99 99 100 101 102 102 102 102 103 104 105 106 107 108 109 109 110 111 112 113 114 115 116 117 118 118 119 120 121 122 123 124 125 Section 53 346 Subd. 1 and first clause Gubd. 2 Remainder Subd. 1 Subds. 2 and 4. Subd. 3 Subd. 5 Except last sentence . Last sentence First two sentences. Last sentence 818 784 7S5 824 825 100 102 101 10.3 108 109 1303 724 721 722 2124 768 768 770 768 776 778 768 1670 1671 1672 1674 1673 New; covers code, §§ 817, 819, 1220, 497, last sentence; § 497, first sentence omitted as unnec- essary. New; Eng. Prac. Rule, order 64, rule 7; code §§ 781 and 783 omitted as covered. Rewritten and amended. See code § 657. New; code §§ 723, 728, omitted as covered; § 768, 8th, 9th and 10th sentences omitted as unneces- sary; see code § 724, last part, and § 1317, last sentence. New; see code § 1003, last part of second sentence. Code § 725 omitted as covered. New. New; supersedes code § 214S-a. First sentence. New; see code § 1755. Second, third and fourth sentences. Seventh sentence. Code § 777 omitted. Sixth sentence. First two and last sentence. First three sentences. New; code § 1671, part, rewritten; covers § 1671, except first, second and last sentences; see § 1674, except first three sentences. CLEVENGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 126-166 480 Civil Practice Act Section 126 127 128 129 130 130 130 131 132 133 134 135 136 137 138 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 154 155 156 157 158 159 160 161 162 163 163 164 164 165 166 Subd. 1 new. Subd. 2 Code of Civil Procedure Section 767 768 354 772 773 772 1348 743 745 749 Portion of code section or othei statement respecting source 747, 748 751 Except subd. 19 Subd. 19 791 789 792 793 195 229 787 826 3293 3294 815 813-a, 1308 and 1327 729, 730 1335 813 813 Except last sentence . . . Last sentence 2353 1986 811 812 814 1915 1309 1990 First two sentences. . . . Second sentence 799 802 798 Last sentence 801 132 131 New; see code §§ 1550, 1608, 2329, omitted as covered. First two sentences. Fifth sentence. New. Omitted as covered. Except last sentence. Omitted as unnecessary. Last sentence. Second sentence, first clause. Gen. Rule of Practice 36, pt. Amended. Amended. First sentence new. Last two sentences rewritten. Supersedes Gen. Rule of Prao. 5, first sentence. First two sentences. Last sentence. New; see Gen. Rule of Prac. 51, 54, 57. Second sentence. Last clause, first sentence, and sec- ond sentence. New. Except first four sentences. Amended. Part. Made general. See code § 3347, subd. 1. 481 SOUIiCE TABLE Civil Practice Act, §§ 167-202 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 167 Section New; code § 805, last clause, omitted as covered. 168 345 775 3301 731 732 169 170 Last two sentences in substance. 171 172 Amended. 173 New; supersedes code §§ 733, 734. 174 175 736 737 738 739 740 821 822 984 982 983 990 985 987 176 177 178 179 180 181 182 See code § 991. Except last sentence omitted as unnecessary. See code § 991. 183 184 185 186 187 187 Subd. 3 Covers Gen. Rule of Prac. 48, last 188 988 218 342 344 342 345 3338 3279 sentence omitted. 189 Amended; code §§ 343 and 344, last two sentences omitted. Third sentence. 190 First sentence, except last clause 190 First sentence, last clause First sentence. 190 190 Second sentence Last sentence Last sentence. 191 191 Last sentence Last clause madij general. New; code § 1588, omitted as 192 193 452 448 448 458 461 463 459 covered. 194 Except last sentence. Last sentence. 195 196 Part. 197 198 199 Subd. 2 adapted. 200 201 468 472 1535 471 469 202 202 First sentence, except last clause First sentence, last clause First sentence. 202 202 Covers First part. CLEVENGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 202=232 482 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 202 Last sentence Section 203 470 470 471 477 and 409 473 477-a 428 426 204 Subd. 1 204 Subd. 2 205 Last part rewritten. Code § 3249 omitted in view of change. Except last sentence. 206 207 208 Last sentence. Subd. 2 rewritten. New; code § 446, omitted aa covered. 209 210 449 211 New; code § 447, first sentence omitted as covered. New 212 213 214 447 451 454 455 457 445 1557 416 418 First part of second sentence. 215 216 Subd. 1 216 Subd. 2 216 Subd. 3 217 217 Except last sentence . . . Last sentence Subd. 1, last sentence. 218 First sentence 218 Last sentence Last sentence. 219 453 Part of first sentence. Covers fipn RiiIp nf Pra/» IS 220 First sentence 220 220 Except last sentence . . . Last sentence 425 453 447 1594 1598 1627 221 221 Except last sentence . . . Last sentence Last sentence. Part. Part. Part extended. 222 1895 801-a 473 426 429 427 428 430 431 432 435 436 438 223 224 Last sentence, except last part. Except subd. 3; subd. 2 being amended. 225 225 226 Subd. 2 covers 227 First sentence rewritten. 228 229 230 Amended. Amended. Amended. 231 232 232 Subds. 1, 3, 5-8 Subd. 4 232 232 Second last paragraph . . Last paragraph 439 New. 483 SOURCE TABLE Civil Practice Act, §§ 233-271 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 233 Section 443 440 443 55 421 424 422 473 65 234 235 Subd. 3. 236 237 237 238 Last sentence is code. . . Except first sentence; omitted. Last sentence, last part. Except last sentence omitted. New; substitute for code §§ 481 239 240 241 242 part, 500 part, 514 part; code § 518 omitted as unnecessary. 243 522 542 544 531 531 523 527 529 513 1778 528 478 481 482 419 479 480 484 244 245 246 247 248 Except last sentence. 249 250 251 252 253 254 255 256 257 First sentence . 257 Second, third and fourth sentences . Except last clause of last sentence. 257 258 Amended 258 Covers code §§ 1687, 1689 omitted. Second sentence, last part and third sentence; amended. See code §§ 1594, 1598, 1627. 259 447 487 500 507 508 422 479 520 566 521 841-b 501 502 505 506 509 260 261 Amended. 262 263 First sentence. 264 Last sentence, last clause, amended. Last sentence part. Except last clause omitted as un- necessary. 265 266 Amended. 267 268 269 270 Amended. 271 New. CLEVENGER'8 TABLES OF PRACTICE ACTS Civil Practice Act, §§ 272-311 484 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 272 272 Except last sentence . . . Section 514 517 Amended. First clause. 273 520 516 519 524 274 275 276 277 New; supersedes code §§ 493, 494. 278 488, 495, 498, 499 279 Adapted. New; supersedes code § 499. New; adapted from code §§ 490, 496. 280 281 282 code § 492. New 283 New; see code § 497. Repealed by Laws 1921, chapter .372, § 6. First sentence 284 285 820-a 820-a 820 286 Except first sentence. 287 288 New; supersedes §§ 870, Pt., 871, pt., 872, pt., 887, pt., 888, subds, 1-5. 289 872 290 New; supersedes code § 872, subd. 4 as to parties. 291 292 New; see code § 873. New; see code §§ 870, 871, 888, subd. 2. New; see code § 873. New; supersedes code §§ 870, 871, pt. Subd. 7, last part extended. 293 294 295 296 872 887 879 297 298 299 New; see code § 874. 300 886 301 302 New 303 881 882 304 First sentence 304 Supersedes §§ 910, 911. 305 883 911 873 885 306 Last sentence. Pt 307 308 New; supersedes § 888, subd. 6. 309 913 914 915 310 311 185 SOURCE TABLE Civil Practice Act, §§ 312-361 Civil Practice Act Code of Civil Procedure Portion of code section or otlier statement respecting source Section 312 Section 919 16S8-a 1688-b 16SS-C 1688-d 16.88-f 1688-f 1688-g 1688-h 1688-i 735 313 314 315 316 317 318 Except first sentence. 319 320 321 322 323 324 803, 804 808 809 325 326 327 New. 328 New- 329 957 958 959 961-b 961-d 1917 1918 961-a 960 961-c 1907 1908 535 536 839 841 840 838 962 1914 828 829 830 831 832 833 834 835 836 837 841-a 842 843 844 845 846 330 330 First two sentences 331 332 333 Subds. 1, 2 333 Subd. 3 334 335 336 337 First sentence 337 Last sentence 338 339 340 341 First sentence 342 343 344 345 346 347 348 349 350 351 352 353 354 355 ' 356 357 358 359 360 361 CLEViJXGER'S' TABLED OF PKUCTJC'E ACTS 486 Civil Practice Act, §§ 362-406 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 362 Section 847 848 849 850 921 922 923 924 925 926 927 928 929 930 931 961-f 961-e 931-a 931-b 841-b 932 941-a 933 934 935 936 3256 937 939 940 941 955 931-c 942 946 947 948 949 950 951 952 953 954 956 943 944 944 945 363 364 365 366 367 368 Subd. 1 368 Subd. 2 369 370 371 372 373 374 Subds. 1 and 4 374 Suds. 2 and 3 375 Covers code § 944, last two sen- tences. 376 377 378 379 380 381 382 383 384 Subds. 1 and 2 384 Subds. 3 and 4 385 Part of last sentence. 386 387 Subd. 1 387 Subds. 2 and 3 388 389 390 Rewritten. 391 392 393 394 Subd. 1 394 Subd. 2 394 Subd. 3 394 Subd. 4 395 396 397 398 399 400 First sentence. Second sentence. 401 402 403 New. 404 852 853 854 405 406 Subd.l Amended. 487 SOURCE TABLE Civil Practice Act, §§ 406-444 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 406 Subd. 2 Section 855 856 857 858 859 861 862 865 866 867 867-a 868 869 2008 2009 2010 2011, 2013 2014 406 Subd. 3 406 Subd. 4 406 Subd. 5 407 408 Subd. 1 408 Subds. 2, 3 409 410 411 412 413 414 415 416 Amended 417 418 419 420 421 Repealed by Laws 1921, chapter 372, § 6. Except first sentence. New; supersedes § 965, and § 975, 422 964 423 424 974 968 1009 969 1008 970 971 823 972 1014 976 980 539 540 541 1020 45 37 41 239 1023 1022 1021 1010 966 967 973 992 993 425 426 427 428 429 430 430 Amended. 431 Except last sentence. First sentence. 432 433 Except last sentence omitted as unnecessary. 434 434 434 Second sentence 435 Amended; covers § 1184. Amended. 436 437 Subd. 1 Except last sentence. 437 Subd. 2 438 439 Amended. 440 441 Amended. 442 Except last sentence. 443 Subd. 1 443 Subd. 2 Except last sentence omitted. 443 Subd. 3 444 Subds. 1, 2, 3 444 Subd. 4 First sentence. CLEVEXGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 445-479 488 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 445 Section 994 995 1001 1166 1063 446 447 448 Except last two sentences. 449 449 First two sentences New. 449 450 Last two sentences 1067 1180 1176 1180 1177 1178 1179 1166 1174 1182 Except last sentence. 451 452 453 Subd. i 453 Subd. 2 454 455 Last two sentences. 456 457 457a New. 458 1186 1187 1188 1183 1185 1182 1181 1011 1012 1013 1015 1025 1026 1018 1017 1223 459 Except last sentence. 460 461 462 First clause. 463 464 465 466 467 468 468 469 469 469 469 First two sentences Last two sentences Except fifth sentence Second sentence part. . . . Fourth sentence part. . . . Fifth sentence Amended. Omitted. G. R. P. 30. Last sentence. 470 Subd. 1 New; covers §§ 1021 and 1022. 470 Subd. 2 1228 1019 1023 1200 470 Subd. 3 471 Part. 472 Rewritten. 473 New. 474 Subd. 1 1204 1205 456 457 474 Subd. 2 475 475 Except last sentence. . . . Last sentence . 476 477 477 Except last sentence .... Last sentence 503 504 763 1210 765 1207 sentences and § 547, omitted. 478 478 First sentence Second and third sen- 478 Last sentence 479 189 SOURCE TABLE Civil Practice Act, §§ 480-525 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 480 Section 1235 1211 1209 481 482 482 Remainder New 483 443 1913 420 1212 1213 512 1214 1215 1214 1218 1216 1217 515 1189 1233 1234 1224 1319 1321 1.322 1227 1677 1246 1247 1239 1240 1241 1242 1243 1244 1250, 1272 1251, 1272 1251, 1272 1252, 1272 1253, 1272 1254, 1272 1255, 1272 1256, 1272 1257 1258 1259 707 1282 1283 1284 1285 1286 Subd 6 4S4 485 486 Except last sentence; second sen- tence of § 419 omitted as un- necessary. 487 488 Except last sentence. 489 490 491 492 493 Subd. 1 493 Subd. 2 Except subds. 2 and 3. 494 495 First sentence 495 495 Second sentence Last sentence 496 497 498 Subd. 1 498 Subd. 2 499 500 501 502 503 504 505 506 Amended, covers § 1560, last clause. 507 508 509 510 First two sentences, § 1250. Except first two sentences, § 1251. 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 Amended. CLEVENGEB'S TABLES OP PRACTICE ACTS Civil Practice Act, §§ 526-573 490 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 526 Subds. 1 and 2 Section 1287 1288 1286 1289 1290, 1291 1292 1260, 1272 1943 1261, 1272 1262, 1272 1263, 1272 1265, 1272 1266, 1272 1267, 1272 1269, 1272 1270 1273 1274 1278 1275 1276 1277 1279 1280 1281 999 1000 1001 1002 1003 1005 1006 1004 1294 1296, 1297 466 13Q4 1318 1295 1300, 1301 1302 1306 1334 1335 1307 1312 1305 1313 1314 1297 1310 526 Subd. 3 526 Subd. 4 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 Except second sentence, second clause. 554 555 second sentence. 556 557 558 First sentence. 559 560 561 562 563 564 565 566 Broadened 567 568 669 570 571 572 573 First two sentences. 401 SOURCE TABLE Civil Practice Act, §§ 574-619 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 574 Section 1310 997 998 999 997 1315 1298 1299 1316, 1358 774 1323-a 996 1317 1187 1323 1323 190 191 1337 1336 1310 1325 1326 1327 1328 1329 1330 1331 1332 1333 1339 1338 1350 1337 194 194 1339-a 1346 1347 1348 1349 1351 1348 1351 1352 1353 1355 231 1350 Third sentence. 575 First sentence. 576 Last clause. Last sentence. Except first sentence. 577 Broadened. 578 579 580 580 581 Except second sentence. . Second sentence Amended. New. 582 Rewritten. 583 584 Except last sentence omitted. 585 Last sentence. 586 Last three sentences. 587 First two sentences. 588 Amended; § 1324 omitted aa 589 Except subd. 3, last clause obsolete. 589 590 Subd. 3, last clause .... Second clause. 591 Last two sentences; amended. 592 593 594 Except last two sentences. 595 596 597 598 599 600 601 602 603 604 Last sentence. 605 Second sentence. 606 First sentence. 607 608 Supersedes § 993; second sentence, 609 first clause. Amended. 610 First sentence. 611 612 First sentence. 613 Second sentence; second clause. 614 Except first sentence. 615 616 Amended, 617 First sentence. 618 619 First sentence. CLEVENGBR'S TABLES OP PRACTICE ACTS Civil Practice Act, §§ 620-667 492 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 620 Section New 621 1345, 1355 1340 1342 1340 1340 1341 1343 1344 1344 1345 1344 1356, 1357 1361 1359 1320 1360, 1361 1364 1362 1363 1364 1388 1366 1367 1368 1369 1373 1370 1371 1372 1365 1374 1375 1376 1377 1378 1379 1380 1381 1382 1383 1985 1384 1385 1386 1387 1389 1390 1391 1392 1393 622 written. 623 624 625 626 627 Subds 1 and 2 628 629 Subd. 3. 630 broadened. Subd 4 631 632 t First sentence. 633 634 635 636 637 638 Except last sentence. 639 640 Except last two sentences. 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 Except last sentence. 661 662 663 664 665 Subds. 1-6 665 Subd. 7 666 067 493 SOURCE TABLE Civil Practice Act, §§ 668-717 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 668 Section 1394 1404-a 1395 1396 1397 1398 1399 1400 1401 1402 1403 1404 1405 1406 1407 1408 1409 1391 1366 1410 1411 1412 1311 1413 1414 1415 1416 1417 1384 1418 1419 1420 1421 1422 1423 1424 1425 1426 1427 1428 1429 1430 1431 1432 1433 1434 1435 1436 1437 1435 1438 1439 669 670 670 Except last sentence .... 671 672 673 674 675 676 677 678 679 680 681 682 683 684 Except first sentence. Second last sentence* last sentencfl 685 686 omitted as temporary. 687 688 689 690 691 692 693 694 695 Last sentence 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 Except last sentence. 714 715 715 Except last sentence .... 716 717 CLEVENGER'8 TABLES OP PRACTICE ACTS Civil Practice Act, §§ 718-769 494 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 718 Section 1440 1441 1442 1443 1444 1445 1446 1447 1448 1449 1450 1451 1452 1453 1454 1455 1456 1457 1458 1459 1460 1461 1462 1463 1464 1465 1466 1467 1468 1469 1470 1471 . 1472 1473 1474 1475 1476 1477 1478 1479 1480 1481 1482 1483 1484 1485 1486 1487 1488 1489 1490 1491 1492 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 First sentence 747 748 Last two sentences 749 750 751 752 Last sentence omitted as temporary 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 1 Subd. 1 495 80UB0E TABLE Civil Practice Act, §§ 769-817 Civil Practice Act Code ot Civil Procedure Portion of code section or other statement respecting source Section 769 Subd. 2 Section 127 1493 1494 1495 2432 2433 2458 2461 2463 2434 2435 2436 2437 2438 2439 2440 2441 2442 2459 2443 2445 2444 2460 2446 2447 2448 2449 2450 2451 2452 2453 2457 2462 2454 2455 2456 2464 2465 2466 2469 2468 2469 2471 2467 2470 First part. 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 Subd. 5. 809 810 Except subd. 5. 811 812 813 814 New. 815 New. 816 Consolidation of §§ 557, 568, pt., 817 556, 606 638 604, pt., 607, 627, pt., 636, pt., 637, last sentence, 683, pt., 689, pt., part new. First sentence. CLEVENGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 818-857 496 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 818 Section 551 558 608, 638 559, 611, 616 ,620 640 1990 610 641 Pt. S19 \ Pt., combined and condensed ; sea J also § 650. 820 Parts of these sections condensed and made uniform. Last clause. 821 First sentence 822 First sentence, pt.; Gen. Rules of of Pr. 13. New; see code §§ 503, 626, 627 and 683. 823 719 720 416 549 550 551 552 553 554 555 127 557 824 825 826 827 First sentence 827 Last sentence . ... First sentence 828 829 830 Amended. 831 832 Last part. 833 834 First sentence New. 834 835 Second and third sen- tences supersede code. 558 559 560 559 561 562 551 563 564 Pt. Pt amended. 836 837 Pt. 838 Except first and third sentences. Except second sentence omitted as unnecessary. Second sentence rewritten. 839 840 841 842 New; supersedes code § 567. New; supersedes code § 558. 843 844 568 568 572 573 574 575 576 577 578 579 580 581 582 583 845 846 847 848 849 850 851 852 853 854 855 856 857 497 SOURCE TABLE Civil Practice Act, §§ 858-909 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 858 Section 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 609 610 611 612 613 614 615 616 617 618 619 620 623 624 625 626 627 628 629 630 635 636 637 63S 639 640 640 Amended. Amended. Amended. Amended. Amended. Amended. Rewritten. Amended. Amended. Amended. Amended. Amended. Amended. Amended. Except last sentence, amended. Last sentence; part. New: suoersedea code 5 641 firs 859 S60 861 862 863 S64 865 866 867 868 869 870 S71 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 t sentence, part. CLEVENGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 910-960 498 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 910 Section 641 642 644 645 646 647 648 649 650 651 652, 653 654 655 656 657 658 659 658a 660 681 662 663 664 665 666, 667 668 669 670 671 672, 673 674 675 676 677 678 679 680 681 682 683 683 686 687 688 689 690 691 692 693, 694, 695 696 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 ' 941 942 943 944 945 946 947 948 949 Except last part; amended. Last part, amended. 950 951 952 953 954 955 956 957 958 959 960 697 499 SOUliGJi TABLE Civil Practice Act, §§ 961-1012 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 961 Section 698 701 702 703 704 705 962 963 964 965 966 967 New 968 706 708 709 710 711 712 713 714 715 716 717 718 969 970 971 972 973 974 975 976 Except first sentence, last part. 977 978 979 980 981 1681 1682 1683 1684 1675 1678 1679 1671a 1688 1496, 1497 1498 1499 1500 1501 1680 1502, 1503 1504 1505 1506 1507 1508 1509 1510 1515 1517 1518 1520 1685 1524 1526 1531 1531a 1532 QS2 983 984 985 986 987 988 989 990 991 992 993 994 995 Part. 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 Part. 1009 1010 1011 1011a 1012 CLEYENOEB'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 1013-1063 500 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1013 Section Gen. Rule of Practice 65. 1014 1533 1534 1537 1538 1538 1538 1594 1539 1543 1544 1546, 1549 1547 1548 1551 1552 1553 1554 1555 1556 1557 1558 1540 1559 1560 1561 1562 1563 1564 1565 1566 1538 1538 1538 1538 1538 1567 1568 1569 1569 1570 1571 1572 1573, 1574, 1575 1576 1577 1578 1579 1580 1676 1581 1015 1016 1017 1018 Second sentence. 1019 Third fourth and fifth sentences; 1020 rewritten. 1021 First and third sentences. 1022 Rewritten. 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 Except subd. 1, second sentence. 1034 1035 1036 1037 Except last clause. 1038 1039 1040 1041 First and last sentences. 1042 1043 1044 1045 Seventh and eio'htli sentences 1046 1047 1048 1049 1050 1051 First two sentences 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 Part. 1063 501 SOURCE TABLE Civil Practice Act, §§ 1064-1113 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1064 Section 1582 5841 1582 1582 1582 1582 1583 1584 1585 1587 1539 1589 1595 1630 1628 1627 1627 1631 1634 1626 1627 1635 1632 1636, 1637 1676 1633 1690 1691 1692 1693 1723 1694 1694 1695, 1696 1697 1697 1698 1699 1700, 1701 1702 656 1703 1704 1705 1706, 1708 1707 1709 1710 1711 1712 1713 1714 1715 First sentence, first clause. 1065 Last sentence. 1066 First sentence, except first clause. 1067 Second, third and fourth sentences, 1068 Fifth sentence. 1069 Last two sentences. 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 First sentence Subd. 1, first clause. 1079 Subd. 2, first sentence. 1080 1081 1082 1083 Subd. 1, last clause. 1084 1085 1086 1087 1088 Third sentence. 1089 1090 1091 1092 1093 1094 First sentence. 1095 Except first sentence. 1096 Rewritten. 1097 First two sentences. Except first sentence. 1098 1099 1100 1101 1101a Part. 1102 1103 1104 Amended. 1105 1106 1107 1108 1109 1110 1111 1112 1113 CLEVENGBR'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 1114-1163 502 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1114 1716 1717 1718 1719 1722 1725 1726 1727 1728 1729 1730 1730 1731 1732 1733 1734 1735 1736 1743 1744 1745 1749 1746 1747 1748 1750 1751 1752 1753 1753 1755 1755 1754 1756 1757 1757 1757 1751 1757 1758 1759 1759 1759 1760 1760 1771 1761 1762 1763 1765 1115 First clause. 1116 1117 1118 Except last sentence omitted aa unnecessary. Except last sentence omitted as unnecessary. 1119 1120 1121 1122 Except first sentence, last clause omitted. 1123 1124 Except last sentence. Last sentence. 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 Last sentence. 1143 First two sentences. 1144 1145 Last sentence. 1146 1147 1148 First sentence. 1149 Second sentence. 1150 1151 Subd. 2, except last sentence. 1152 1153 1154 Subd 1. 1155 Subd. 2. 1156 Subds. 3 and 4. 1157 Subd 1 1158 Subds. 2 and 3. 1159 Last sentence* 1160 1161 1162 1163 503 SOURCE TABLE Civil Practice Act, §§ 1164-1214 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1164 Section 1766 1767 1768 1774 1770 1769 1771 1772 1773 1769 1229 1774 1774 1961 1962 1893 1894 1896 1898 1982 1965, 1966 1937, 1940 1938 1939 lft41 IS'/l 1872 1873 1874, 1875 1876 1877 1878 1879 1932 1933 1934, 1935 1936 1946 1984 1986 1988 1989 1984 1985 1948 1954 1948 1949 1949 19S1, 1952 1953 1165 1166 1167 1168 1169 First sentence 1170 Except last sentence. 1171 1172 1173 1174 1175 Third and last sentences. 1176 Fourth, and fifth sentences. 1177 117S 1179 1180 1181 1182 Supersedes code § 1964. 1183 1184 1185 1186 1187 1188 1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 1201 1202 First clause broadened 1203 1204 1205 1206 Second clause broadened. 1207 1208 Subd. 1. 1209 1210 Subd. 2. 1211 First sentence, first part; last sentence. 1212 1213 and third sentences rewritten. 1214 CLEVENGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 1215-1256 504 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1215 Section 1956 1956 1948 1955 1955 1987 1950 1969 1970 1971 1972 1973 1974 1975 1976 2015 2016 2017, 2018 1993 2019 2020, 2015 1992 1994 1996 2021 2022 1998 2023 2015 2024 2025 2003, 2015 2000 2001 2002 2004 2005 2006 2026 2027 1995 2028 2029 2030 2031 2032 2033 2034 2035 2036 1216 Second and third sentences; last 1217 sentence omitted. Subds. 3 and 4. 1218 Allex cept last sentence, . amended, Last sentence. 1219 1220 1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 Except last sentence. 1231 1232 1233 1234 1235 Last sentence, pt. 1236 Subd. 1 1236 Subds. 2 and 3 1236 Subd. 4 1237 1238 1239 Subd. 1 1239 Subd. 2 1239 Subd. 3 Last sentence, pt. 1240 1241 1242 Last sentence, pt.; code § 1999 omitted as unnecessary. 1243 Subds. 1 and 2 1243 Subd. 3 1243 Subd. 4 1244 Subd. 1 1244 Subd. 2 1244 Subd. 3 1245 1246 1247 Except lastp art of first sentence; see code §§ 2024, 2026. 1248 1249 1250 1251 1252 1253 1254 1255 1256 505 SOURCE TABLE Civil Practice Act, §§ 1257-1306 Civil Practice Act Section Code of Civil Procedure Portion of code section or other statement respecting source Section 1257 Section 2037 2038 2039 2040 2041, 2042 2043 2044 2045, 2046 2047 2048 2049 1997 2050, 2051 2052, 2053 2054, 2055 2056 2057 2058 2059 2060 2061 2062 2063 2064 2065 2066, 1991 2007 1258 1259 1260 1261 1262 1263 1264 1265 1266 1267 1268 1269 1270 1271 1272 1273 1274 1275 1276 1277 1278 1279 1280 1281 1282 1283 Omitted as unnecessary. New. 1284 2120 2121 2122 2123 2125 2126 2127 2128 2129 Amended. 1285 1286 1287 1288 1289 1290 1291 1292 1293 New; see code §§2132 and 2134. 1294 1294 Except last sentence La^t sentence 2130 New. 1295 2131 2132 2134 3135 2133 2138 2136 2137 2139 2140 2141 2142 1296 1297 1298 1299 1300 1301 1302 1303 1304 1305 1306 CLEVENGEB'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 1307-1354 506 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1307 Section 2143 2144 2145 2146 2147 2148 New. First sentence. Last two sentences. First sentence. New; see code, §§ 2072, 2074. . Except last sentence omitted. Last two sentences. Amended. First sentence. Last sentence. Amended. Amended Amended Except first sentence omitted imTiecessary. New. Except first sentence omitted unnecessary. Except first sentence. Last two sentences. First two sentences. Except first sentence. First sentence. First sentence. 1308 1309 1310 1311 1312 1313 1314 2067 2067 2076 2068 2069 2070 1315 1316 1317 1318 1319 1320 1321 2071 2076 2072 2073 2074 2078 2077 2078 2081 2080 2075 2079 2082 2083 2084 2085 2086 2087 2088 2089 2090 1322 1323 1324 1325 1325 1326 Except second sentence. . Second sentence 1327 1328 1329 1330 1331 1332 1333 1334 1335 1336' 1337 1338 1339 US 1340 1341 1342 2091 2092 2093 2094 2095 2095 2096 2098 2099 2096 2094 2097 2100 2101 afl 1343 1344 1345 1346 1347 1347 1348 First two sentences Last four sentences 1349 1350 1351 1352 1353 1354 507 SOURCE TABLE Civil Practice Act, §§ 1355-1410 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1355 Section 2102 2320 2321 2322 2323, 2324 2325 2325a 2327 2326 2327 2328 2330 2331 2332 2333 2334 2335 2336 2336 2323a, 2323b 2336a 2337 2338 2339, 2340 2341 2342 2342 2342 2343 2344 2344a 2345 2346 2347 2348 2349 2360 2351 2351 2351 2352 2354 2355 2356 2362 2363 2357 2358 2359 2231 Except first sentence omitted as unnecessary. Except last sentence. 1356 1357 1358 1359 First sentence of § 2323. 1360 1361 1362 Subd. 3. 1363 1364 Subds. 1 and 2. 1365 1366 1367 1368 1369 1370 1371 1372 First sentence. 1373 1374 1375 Combined. 1376 1377 1378 1379 First, second, third and sixth 1380 sentences. Fourth and fifth sentences. 1381 Except first six sentences. 1382 1383 Except third and fifth sentence, 1384 omitted. 1385 1386 1387 1388 1389 First two sentences. 1390 1391 First sentence. 1392 Last two sentences. 1393 Second, third and fourth sentences. 1394 1395 1396 1397 1398 1399 1400 1401 1402 First three sentences. 1410 CLEVENOER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 1411-1452 508 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1411 Section 2232 2233 2234 2235 2235 2236 2237 2238 2238 2239 2240 2241 2242 2243 2244 2245 2246 2247 2248 2249 2250 2251 2252 2253 2254 2255 2256 2257 2258 2259 2260 2261 2262 2263 2264 2265 2665a 2361 1412 1413 1414 First sentence. 1415 Last sentence. 1416 1417 1418 First sentence. 1419 1420 1421 1422 1423 1424 1425 1426 1427 1428 1429 1430 1431 1432 1433 1434 1435 1436 1437 1438 1439 1440 1441 1442 1443 1444 1445 1446 1447 1403 1403 First three sentences .... Last sentence First three sentences. New. 1404 Gen. Rule of Prac. 58 pt. 1405 2361 2364 2361 2359 2361 1447 2366 2365 2366 2367 2368 2369 1406 1407 Sixth sentence. 1408 1409 sentence omitted as obsolete. Fourth and fifth sentences 1410 Summary Proceedings. First sentence, pt. 1448 1448 1449 Except part of first sentence. 1450 1451 1452 509 SOURCE TABLE Civil Practice Act, §§ 1453-1501 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1453 First sentence Section 2370 2371 2371 2372 2373 2374 2375 2376 2377 2378 2379 2380 2381 2382 2383 2384 2385 2386 3228 3228 3228 3228 3228 3229 3228 3229 3230 423 3231 511 3247 3232, 3233 3234 3235 1010 3236 537 545 3237 3238 3239 3240 461, 467 3241 3242 3243 3244 3245 1835, 1836 3246 1916 1453 Last sentence First sentence 1454 Except first sentence' 1455 1456 1457 1458 1459 1460 1461 1462 1463 1464 1465 1466 Repealed, L. 1921, ch. 199. Repealed, L. 1921, ch. 199. Repealed, L. 1921, ch. 199. 1467 1468 1469 1470 Subd 1 2 first sentence- 3 first 1471 sentence; 4, first sentence. 1472 1473 1474 Subd. 5, except last sentence. 1475 1476 Subd. 5, last sentence. Except first sentence. 1477 1478 1479 1480 1481 1482 Repealed, L. 1921, ch. 372, § 6. 1483 1484 1485 1486 1487 1488 Last sentence. 1489 1490 1491 1492 1493 Except first sentence, last clause of §461. 1494 1495 Broadened. See code, § 1986. 1496 1497 1498 1499 1500 1501 CLEVENGER'S TABLES OF PRACTICE ACTS Civil Practice Act, §§ 1502-1549 510 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1502 Section 3248 3250 3251 3251 807 3251 3251 3251 3251 3260 3252 3253 3254 3255 3257 3258 3256 3259 779 3261 3268, 3269, 3270 1503 1504 Subds. 1, 2, 3, except 5th, 8th, 9th, 10th and 11th pt. paragraphs. Subd. 3, ninth paragraph. Last sentence 1505 1506 1507 Subd. 3, tenth paragraph and subd. 3, fifth paragraph. Subd 4 1508 1509 Subd. 3, eighth paragraph. Subd. 5. 1510 1511 1512 1513 1514 1515 Part 1516 1517 1518 Except last sentence. 1519 1520 1521 1522 Except subd. 9 1522 Subd. 9 Greater N. Y. Charter, §§ 1345, 1368. 1523 3271 3272 3273 3274 3275 3276 3277 3278 3279 3262 3262 3263 3264 3265 3266 3267 3318 3319 3288 3313 3316 3311 3296 3297 3320 3320 3320 1524 1525 1526 1527 1528 1529 1530 1531 1532 Except third sentence. 1533 1534 1535 1536 1537 1538 1539 1540 1541 1542 1543 1544 1545 1546 1547 1548 Except first three sentences. Third sentence. 1549 511 SOURCE TABLE Civil Practice Act, §§ 1550-1578 Civil Practice Act Code of Civil Procedure Portion of code section or other statement respecting Bource Section 1550 Section 3299 3317 3300 3301, 3302 3304 3306a 3305 3306 3332a, 3332c 3332b 3307, 3308 3309 3310 3321 3298 3305a 3292 3287 1551 1552 1553 Except last two sentences; covers 1554 1554 Except subds. 11, 13 Subd. 11 § 3302. Part. 1554 Subd. 13 1555 1556 1557 Part. 1558 1559 1560 1561 1562 1563 1564 1565 1566 New; supersedes code, § 3330; 1567 3332 3348 § 3331 omitted as obsolete. 1568 Rewritten. 1569 New; supersedes code, §§ 3349, 3352. New, 1570 1571 New. 1572 New; see § 3347. 1573 New; see § 3352. 1574 3340 3341 1575 1576 New; see code, § 3354, 1577 1578 New. CLEVENGER'8 TABLES OF PRACTICE ACTS RULES OF CIVIL PRACTICE 512 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 1 No. 1 83 47 Section 786 796 24 726 796 802 797 60 800 433 8li 811 812 812 810 812 816 458 459 460 462 ? 3 Last paragraph New 4 11 46 6 7 5 6 7 8 Modified 9 New 10 11 Except last sentence Last sentence covers 2 19 Except first sentence First paragraph, last part Second paragraph, first part Last sentence 12 Fourth sentence 13 Except last sentence, omitted U If; 2 19 Except last sentence 16 As to indorsement of papers 20 Subdivision 4, first sentence Subdivision 4, last two sen- First sentence Subdivisions 1, 2, 3, 4 New 21 Except last sentence New 25 First clause Second clause Subdivision 3 First clause Second clause and second sentence Subdivision 6 Third sentence Covers 5 4 5 70 12 59 69 69 69 69 69 First paragraph •>e, First sentence 27 Last paragraph SO Amended as to Table of '^l Mortality 32 Last paragraph Second sentence Fourth sentence First clause 33 Last three sentences First sentence, last part, and 34 fifth sentence Third and fourth sentences 35 36 Remainder of rule Last sentence 513 SOURCE TABLE Rules of Civil Practice, §§ 37-53 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 37 39 40 41 42 43 44 45 46 47 4 49 50 51 52 53 53 First sentence . Last sentence . No. Subdivisions 1, 2, 3 Subdivision 1, covers. . . . Subdivision 4 Subdivision 5 Subdi^nsiou 6 Subdivision 1, except last clause Subdivision 1, last clause.. Subdivision 2 49 50 Subdivision 3. Subdivision 4. Covers First sentence . Last sentence . Section 464 465 471 471 2352 472 474 2352 476 1536 First paragraph . Last paragraph . 50 50 First paragraph Last two paragraphs . Except last sentence Last sentence First two paragraphs Third paragraph Last paragraph Subdivision 1, first clause. Subdivision 1 , (a) clause . . Subdivision 1, (b) clause. . Subdivision 2 18 Subdivisions, part. Subdivision 3, part. . . Subdivision 4 Subdi vis on 5 Subdivision 6 Subdivisions 7 and 8 . Subdivision 9 18 417 418 453 437 440 441 443 442 443 1541 434 434 434 434 434 444 443 444 First sentence, last part First clause Part Last sentence First sentence 51 18 Covers Gen. Rule Prac New New. See Code Civ. Proc. §§ 474, 475 Last sentence, part Covers Gen. Rule Prao. 51, last paragraph; also Gen- eral Rule 57 Second sentence, part New. See Code Civ. Proc. § 2351, second sentence Second sentence, last part, and last sentence New New Amended; except last para- graph New. See Code Civ. Proc. §§ 419, 420 New. See Code Civ. Proc §1774 First sentence last part Except first sentence Amended Subdivision 4 Subdivision 1 Made general Subdivision 1 Subdivision, 2 first part First clause and second sen- tence Subdivision 2, third sen- tence First sentence, last part Last sentence Last sentence, part Subdivision 5 Last paragraph GLEVENGER'S TABLES OF PRACTICE ACTS Rules of Civil Practice, §§ 53-94 514 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 53 55 56 60 61 62 63 64 65 66 67 70 71 72 73 74 80 81 82 83 84 85 86 87 91 92 93 94 Subdivision 10 Subdivision 11 First paragraph Second paragraph, first sen- tence Second paragraph, last sen- tence Subdivisions 1, 2, 3 . Subdivision 4 Subdivision 5 Subdivision 6 Except last sentence . Last sentence Except last sentence - Last sentence Except last sentence . Last sentence First sentence Remainder rule Covers First sentence . Rema'nder of section. First clause covers . . . Except last clause Last clause Subdivision 1. Subdivision 2. Subdivision 3. Subdivision 4 . No. 18 10 25 37 38 37 37 40 37 3 3 3 27 4 24 24 23 Section 1774 1512 1514 "780 769 768 771 767 557 561 567 561 782 1778 483 507 617 520 533 1775 1776 1777 534 Second sentence First clause, as to notice New Rewritten Also covers General Rule 37, first sentence, first part Except last sentence Fourth paragraph Last paragraph Sixth paragraph New Last paragraph Last sentence First sentence, last part, and second and seventh sen- tences Third sentence New First two sentences Third sentence Last paragraph Last sentence Last two sentences Last sentence First and third sentences New First sentence adapted New First sentence broadened Last paragraph First paragraph Omitted Combined with Second sentence New Last clause First sentence New First sentence First sentence New 515 SOURCE TABLE Rules of Civil Practice, §§ 95-130 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 95 No. Section 532 535 1906 530 525 526 543 546 537 538 545 537 538 547 885 899 872 872 890 908 892 876 '966,901 876 880, 883, 900 pt. 901 901 90i 901 First sentence 96 First sentence, part 97 First sentence PS Except last clause Q9 100 101 102 Broadened 103 First two sentences combined 104 with and First sentence, and rewritten First two sentences, part, 105 22 combined with and rewritten 106 New. See Code Civ. Proe. 107 §488 New. See Code Civ. Proc. 108 §498 New; Code Civ. Proc. § 973 109 extended New 110 New HI New 112 Broadened 113 New 114 New 115 New 116 New 120 121 New As to time of notice 122 Part; part new; supersedes 123 General Rule Prac. 82 Subdivision 6, rewritten 124 New 125 Except last sentence New First sentence 126 First sentence covers Second sentence Second sentence 20 127 Except last sentence 128 129 Except last two sentences . . Last two sentences Last sentence covers New Last sentences First clause 130 Combined and condensed Subdivision 3 Subdivisions 2 and 3 Subdivision 4 New Subdivision 5 Subdivision 7 Subdivision 6 GLEVENQEB'S TABLES OF PRACTICE ACTS 516 Rules of Civil Practice, §§ 130-180 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 13(1 Subdivision 8 No. Section 901 892 904 905 906 907 880 909 910 1688-e 805 807 807 986 989 977 34 977 976 37 981 2012 1190 ■■"1189 539 1016 1024 Subdivision 7 131 Subdivision 6 and 7 coveri. Subdivision 1 Third and fourth sentences Subdivision 2 Subdivision 3 Subdivision 4 IR'^' First sentence ... ...... New 133 First sentence covers Last two sentences As to filing depositions Rewritten Rewritten 136 17 17 First paragraph Last paragraph 137 138 140 First sentence supersedes, . . Last sentence supersedes . . . 14 15 141 First sentence First sentence 14'' Last two sentences 16 Rewritten Second sentence 145 48 First paragraph 14R 147 150 First sentence Covers 151 Second, third, fourth and 155 Except last paragraph 37 fifth sentences Third paragraph 156 36 31 157 158 sentences Second sentence ISQ 160 ■ '19 29 9 Last paragraph Rewritten 161 ^f\?. 163 164 Except last clause Except first sentence on-iitted 165 166 Last two sentences rewritten 170 30 Last paragraph Except second sentence Except part of last sentence First two sentences 171 172 173 First three sentences Last two sentences ""79 79 77 78 78 SO 80 81 175 176 Last paragraph First paragraph First sentence 177 178 17ft Last two sentences 180 517 flOVRCE TABLE Rules of Civil Practice, §§ 185-224 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 185 No. Section 1210 1230 1231 1214 1219 1219 "me 1217 ""i225 1221 1222 1223 1228 1226 1236 1202 1238 1237 512 1237 1354 1237 1354 1239 1005 ■'■■l264 " " 1000 997 998 1003 ■■'1232 1007 New. Supersedes Code Civ. Proc. § 1203 186 187 188 IRQ IQO Subdivision 1 Subdivision 1, except last clause Subdivision 2, except third sentence New 191 Except last sentence Last sentence 26 192 Subdivisions 1, 3, 4, 5 Subdivision 2 Except first sentence Except subdivision 3 New 1Q3 194 195 196 197 198 Last sentence 199 ?no 45 201 First and lait sentence .... Second sentence . 202 First sentence covers Subdivision 1 8 First sentence, part Last sentence Second and third sentences Subdi%'ision 2 covers - Subdivisions 3 and 4 Subdivision 6 Last sentence 203 Except last clause First sentence, first part 204 Except last clause 210 New 211 New 212 New ?13 New 214 New VO Last three sentences rewrit- 31 ten to state present law on subject Last sentence 221 First paragraph, first part. . First paragraph, second part First sentence rewritten First sentence rewritten Covers 31 Last paragraph, part 222 993 224 31 First sentence CLEVENOEB'S TABLES OF PRACTICE ACTS 518 Rules of Civil Practice, §§ 229-270 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 229 No. Section 1511 1519 1542 "■'1545 ■■■■i564 ■"■i588 1629 1633 1633 ■■■■i720 23n 32 31 33 34 41 32 41 43 42 39 85 34 Except last paragraph Last paragraph, first sen- tence, last part Covers ?31 ?,S3 Except second paragraph, last two sentences Last paragraph Last paragraph Except last paragraph Third paragraph ?33 9M ?35 ?3fi ?37 Except first two paragraphs and last three sentences omitted ?3S ?39 Second paragraph, last two sentences ?4n ?41 Except to provide for ver- dict in writing New. See Gen Rule Pr 70 ?43 245 Except last sentence ■■"65 ?4fi 947 66 Except last sentence Except first and last sen- tences As to partition 9,48 ?4Q 67 66 ?5n 951 ''55 ?5fi 60 60 60 61 67 61 First paragraph Second paragraph and third paragraph, first sentence ?57 '>58 "^m First paragraph ?m 261 Last paragraph, except last sentence Second sentence 262 First sentence covers Last sentence '■■■64 First sentence First sentence New; states present law ?fi3 64 264 fied ?65 61 64 63 ■'66 Second sentence 967 270 519 SOURCE TABLE Rules of Civil Practice, §§ 271-300 Rule of Civil Practice General Rule of Practice Code of Civil Procedure Portion of rule or section or other statement respecting source No. 971 No. Section 1721 1724 1717 " " 1755 1764 ""2326 2323 2325 2349 2349 2350 '2356 ?7'>. -rrs Last clause Rewritten •^75 73 Wf> ?77 72 76 72 75 Second paragraph Third BCDteace 278 First paragraph 979 ?^n ?^1 72 72 76 76 76 First paragraph Third paragraph, first sen- tence ?{>,?. Supersedes ?«3 First paragraph Second paragraph Last paragraph ?^5 9Sfi Except first sentence ?^7 ?SS 71 52 53 54 T^n ?m ?,99 993 New See New York Co. 994 Surrogate Court Rule XIII New See New York Co. 995 Surrogate Court Rule XXII Third sentence 99fi 297 998 Opening paragraph Subdivisions 1 and 2 Subdivisions 2 and 3 Subdivisions 4 and 5 55 55 ""55 56 59 58 First sentence First clause Except first sentence Last part 999 First paragraph 300 GLEYENQBR'S TABLES OF PRACTICE ACTS SURROGATE'S COURT ACT 520 Surrogate's Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1 Section New. 2 2472 2473 2474 2475 2476 2477 2478 2479 2480 2481 2482 2483 2484 2485 2486 2487 2488 2489 2490 2491 2492, 961 2493 2494 2495 2496 2497 2498 2499 2500 331 2501 2502 2503 2504 2505 2506 2507 2508 2509 2510 2511 2512 2513 2514 2515 2516 2517 2518 2519 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 iSubd. 10 amended to cover Code § 961, pt. 21 22 23 24 25 26 27 " 28 29 30 Subd. 1 30 Subd. 2 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 2520 2521 51 521 BOUliCE TABLE Surrogate's Court Act, §§ 52-103 Surrogate's Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 52 Section 2522 2523 2524 2525 2526 2527 2528 2529 2530 2531 2532 2533 2534 2535 2536 2537 2538 2539 2540 2541 2542 2543 2544 2545 2546 2547 2548 2549 2550 2551 2552 2553 2554 2555 2556 2557 2558 2558 2559 2560 2561 2562 2563 2564 2565 2566 2567 2568 2569 2570 2571 2572 2S73 53 54 55 Amended. 56 57 58 59 60 61 Amended 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 88 89 90 91 92 93 94 95 96 97 08 99 100 101 102 103 GLEVENGEB'S TABLES OF PRACTICE ACTS 522 Surrogate's Court Act, §§ 104-155 Surrogat&'s Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 104 Section 2574 2575 2576 2577 2578 2579 2580 2581 2582 2583 2584 2585 2586 2587 2588 2589 2590 2591 2592 2593 2594 2595 2596 2597 2598 2599 2600 2601 2602 2603 2604 2605 2606 2607 2608 2609 2610 2611 2612 2613 2614 2615 2616 2617 2618 2619 2620 2621 2622 2623 2624 2625 1864 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 Amended to cover Code § 1865 144 145 146 147 148 149 150 151 152 153 154 155 155 Except second paragraph. Second paragraph Last clause. 523 SOURCE TABLE Surrogate's Court Act, §§ 156-208 Surrogate s Ccurt Act Code of Civil Procedure Portion of code section or other statement respecting source Section 156 Section 2626 2627 2628 2629 2630 2631 2632 2633 2634 2635 2636 2637 2638 2639 2640 2641 2642 2643 2644 2645 2646 2647 2648 2649 2650 2651 2652 2653 2654 2655 2656 2657 2658 2659 2660 2661 2662 2663 2664 2665 2666 2667 2668 2669 2670 2671 2672 2673 2674 2675 2676 2677 2678 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 GLEVENGER'8 TABLES OF PRACTICE ACTS Surrogate's Court Act, §§ 209-261 524 Surrogate's Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 209 Section 2679 2680 2681 2682 2683 2684 2685 2686 2687 2688 2689 2690 2691 2692 2693 2694 2695 2696 2697 2698 2699 2700 2664-a 2701 2702 2703 2704 2705 2706 2707 2708 2709 2710 2711 2712 2713 2714 2715 2716 2717 2718 1633 2719 2720 2721 2722 2723 2724 2725 2726 2727 2728 2729 210 211 Superseding Code § 1288, omitted 212 213 214 215 216 217 218 219 220 ■ 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 Except first three sentence*. 251 252 253 254 255 256 257 258 259 260 261 525 SOVRCE TABLE Surrogate's Court Act, §§ 263-314 Surrogate's Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 262 Section 2730 2731 2732 2733 2734 2735 2736 2737 2738 27:ro 2740 2741 2742 2743 2744 2745 2746 2747 2748 2749 2750 2751 2752 2753 3320 3317 2754 2755 1295 1296 1297 2756 2757 1301 1302 1303 2759 2760 2761 2762 1305 1306 1307 1308 1309 1298 1299 2763 2764 2765 2766 2767 2768 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 ■^so ■"■M ''S'> '»,;■; 2,S-1 2S.3 283 Third sentence, pt. 2S7 Except Third sentence, pt. 2SS 289 290 Adapted, see Code § 2758. 291 Adapted, see Code § 2758. ''92 Adapted, see Code § 2758. 293 294 295 Adapted, see Code § 2758. 296 Adapted, see Code § 2758. 207 Adapted, see Code § 2758. 298 299 300 301 302 Adapted, see Code § 2753. 303 Adapted, see Code § 275S. 304 Adapted, see Code § 2758. 305 Adapted, see Code § 2758. 306 Adapted, see Code § 2758. 307 Adapted, see Code § 2758. 308 Adapted, see Code § 2753. 309 310 311 312 313 314 1 Amended. CLEVENGER'S TABLES OF PRACTICE ACTS Surrogate's Court Act, §§ 315-319 Surrogate's Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 315 Section 2769 2770 2771 316 317 Title amended. 318 New 319 527 SOURCE- TABLE JUSTICE COURT ACT Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1 Section 2 2861 2S62 2863 2863 2864 Amended 3 3 Except subdivision 9 . . . . Subd. 9 Subd. 5, pt. 4 5 5a 6 1893 1894 1898 1896 2869 2865 2865 380, 413 2866 2867 2868 2868 2868 2870 2871 2872 2873 2874 2875 446 447 449 450 454 455 468 2886 2889 2890 2887 2888 458 459 460 461 462 467 466 2876 2877 2877 7 8 Amended. 9 10 11 Except last clause. 12 IS First sentence. 14 15 16 First sentence, first clause, 17 amended. Last clause, first sentence. 18 Last sentence, in substance. 19 20 21 22 23 24 25 Adapted. 26 First sentence. 27 Adapted. 28 Adapted. 29 Adapted. 30 Adapted. 31 Adapted. 32 33 34 Rewritten. 35 36 37 Adapted. See Code, §3347, 38 subd. 3. Amended. 39 Adapted. 40 Amended. 41 Amended. 42 Adapted. 43 Adapted. 44 Amended. 45 First sentence. 46 Last two sentences. 47 New. 48 2878 1897 49 CLETEXGER'S TABLES OF PRACTICE ACTfi Justice Court Act, §§ 50-99 528 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 50 Sub. 1 Section 431 431 432 2879 2880 2881 2882 2883 2884 2885 430 2894 2895 2896 2897 Subd. 1 and 2. .50 51 Subds. 2, 3, 4, and 5.... Subd. 1 New. Subd. 3. 51 Subds. 1-3. See Code, § 2879. 52 Pt. adapted. 53 54 55 56 57 58 59 Adapted. 60 61 62 63 64 New. 65 2898 2899 2900 2901 2901 2901 2902 2903 2904, 564 2905 2906 2907 2908 2909 2909 2910 2911 2912 2913 2914 2915 2916 2917 2918 2919 1690 1691 1692 1689 2920 1695 1697 1699 1712 2921 66 67 68 69 Second sentence rewritten. Fort 70 new. 71 72 73 74 75 76 77 78 79 Except first two sentences. 80 81 82 83 84 85 8t 87 88 89 90 Adapted, see Code § 2919 Adapted, see Code § 2919. Adapted, see Code § L919. Adapted, see Code § 2919. 91 92 93 94 95 Adapted, see Code § 2920. Adapted, see Code § 2920. Adapted. Adapted, see Code § 2920. 96 97 98 GO 529 SOURCE TABLE Justice Court Act, §§ 100-147 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 100 Section 1700 1701 2910 1702 2923 2924 1704, 2925 1709 1710 1711 1722 2927 2928 2930 1726 1727 1730 1373, 1731 1732 1733 1734 1735 2932 2933 2934 2135 2940 478 2936 2937 487 488 490 492 2939 500 2938 501 502 2945 2947 2948 505 506 494 495 496 498 Except last sentence, adapted see 101 § 2922. Adapted, see Code § 2922. 102 See § 2922. 103 Adapted, see Code § 2922. 104 105 106 Combined and adapted. 107 Adapted, see Code § 2929. 108 Adapted, see Code § 2929. 109 Adapted, see Code § 2929. 110 Amended. 111 Adapted, see Code § 2931. 112 113 114 115 Adapted, see Code § 2931. 116 Adapted, see Code § 2931. 117 Adapted, see Code § 2931. 118 Combined and adapted, see Code 119 § 2931. Adapted, see Code § 2931. 120 Adapted, see Code § 2931. 121 Adapted, see Code § 2931. 122 Adapted, see Code § 2931. 123 124 125 First two sentences rewritten, 126 subd. 3 pt. new. Remainder of section omitted as obsolete. Amended. 127 12S 129 First sentence. 130 Except last sentence. 131 132 133 134 135 Last two sentences. 136 Amended. 137 First two sentences, amended. 138 Adapted, see Code § 2945. 139 139 Except subdivision 4 . . . . Subd. 4 Adapted. Last sentence. 140 141 142 Adapted, see Code § 2946. 143 Adapted, see Code § 2946. 144 145 146 147 CLEVEXGER'S TABLES OF PRACTICE ACTS 530 Justice Court Act, §§ 148-200 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 148 Section 499 2941, 634 2936 2938 524 525 526 528 522 294-t 531, 2942 530 536 532 533 519 539 540 541 508 509 511 1775 1777 2951 2952 2953 2954 2955 2956 2957 2958 2959 2960 2961 2962 2963 2964 2965 2966 2967 2968 2969 2970 2971 2972 2973 2974 2! 175 2976 2977 2978 2979 149 Combined and adapted. Except first sentence, pt. 150 151 152 153 154 Adapted, see Code § 2936. Adapted. 155 156 157 158 159 160 Adapted last sentence omitted 161 162 163 164 Also covers Code § 2943. 165 166 167 Adapted. 168 169 170 171 172 173 "Rewritten 174 Amended. 175 176 177 178 179 ISO 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 531 SOURCE TABLE Justice Court Act, §§ 201-247 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Bection 201 Section 867 2980 2981 2982 20S.';! f)00 901 902 903 2985 2987 910 911 2983 2891 2988 2989 2892 Adapted. 202 203 204 205 206 Adapted see Cc^e ? 2981. 207 Adapted see Code § 2984. Adapted see Code § 2986. Adapted see Code § 29S6. 208 209 210 211 212 213 Adapted see Code § 2986. 214 215 216 217 218 219 New. 220 2990 221 extended. New, 222 1038 223 New, see Code § 2091. 224 2990 2991 2990 2993 2993 2993, 3009 2994 2995 2996 ■2'M1 2997 2997-a 1176 1179 1180 1180 1166 2998 2999 3000 845 846 847 848 849 225 Adapted. 226 Second, thii-d and fourth sentences 227 rewritten. First 2 sentences rewritten. 228 Third, fourth and fifth sentences, 229 rewritten. Last sentence § 299-3; combined. 230 Amended. 231 Broadened. 232 233 First clause. 234 First sentence, except first clause 234-a amended, last sentence omitted. 235 Adapted. 236 Adapted. 237 Last sentence. 238 First three sentences adapted. 239 Last two sentences see Code 240 § 3347, sub. 14. 241 242 243 244 245 246 247 CLEVENGEB'S TABLES OF PRACTICE ACTS Justice Court Act, §§ 248-298 532 Jastice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 24S Section 850 3001 3002 3003 3004 1776 3005 3006 3007 765 3008 2891 249 250 251 252 253 254 255 256 257 Adapted. 25S 259 Part, rewritten 260 261 3010 3011 3012 2949 504 512 2950 3013 3014 3015 262 263 264 265 266 Adapted. 267 268 269 270 Except subdivisions 5 and 6 Re\^Titten 270 Subds. 5 and 6 271 3016 3017, 3019 3018 3022 3023 272 ' Combined rewritten and amended. 273 274 275 276 Dom. Relations Law § 51 adapted. Adapted. 277 1211 3024 3043 1367 3025 3026 1373 1363 3027 1408 3028 3029 13S4 1385 1386 1387 1405 1409 1410 1411 1412 1428 278 279 280 Adapted see Code § 3043. 2S1 282 283 Adapted. Adapted. 284 285 286 287 288 289 Adapted see Code § 3030. Adapted see Code § 3030. Adapted see Code § 3030. Adapted see Code § 3030. Adapted see Code § 3030. Adapted see Code § 3030. Adapted. Adapted see Code § 3030. Adapted see Code § 3030. Adapted see Code § 3030. 290 291 292 293 294 295 296 297 298 533 HOVRCE TABLE Justice Court Act, §§ 299-349 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 299 Section 3031 1391 3032 2937 1-1S8 3033 30:u 3035 3036 3037 3038 3039 30-10 3041 3042 3074 3074 3075 3076 3077 02.18 31.54 3f)7S 3080 3081 3322 3322 3323 3324 3325 3326 3327 3328 3329 3323 3332 1932 1933 1936, 3021 1934 1935 19.37 19.38 1939 1940 1941 3082 3083 3084 3085 3086 300 301 Except first sentence .... Except first sentence. 302 Last sentence. 303 304 Rewritten. 305 Rewritten, 306 307 308 309 310 311 312 313 314 First two sentences. 315 Except first two sentences, .3273- 316 3275, adapted. 317 318 319 Adapted see Code § 3079. 320 321 322 323 324 Subd. 1. 325 Subd. 2, adapted. 326 Except last clause subd. 1. 327 328 329 330 331 332 333 Last clause subd. 1 . 334 Adapted. 335 Adapted see Code § 3020. 336 Adapted see Code § 3020. 337 Except last sentence combined and 338 adapted. Adapted see Code § 3020. 339 Adapted see code § 3020. 340 Rewritten. 341 342 343 Adapted. 344 345 346 347 348 349 CLfJVENGER'8 TABLES OF PRACTICE ACTS Justice Court Act, §§ 350-430 534 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 350 Section 3087 3088 3089 3090 3091 3092 3093 3094 .3095 3096 3097 3098 3099 3100 3101 3102 3103 3104 3105 3106 3107 3108 3109 3110 3111 3112 3113 3114 3115 2231, 2265-a 810 816 729 730 812 811 813 813-a 814 815 3044 3045 3046 785 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 36S 369 370 371 372 373 374 375 376 377 378 379-415 Repealed by L. 1921, Ch. 200. Transferred to Civil Practice Acl , Article 83, §§ 1410-1447. See Justice Court Act. § 5a. Amended and adapted, see Code § 3347, subd. 6. Adapted, see Code 3347, subd. 6. Adapted, see Code 3347, subd. 6. Adapted, see Code 3347, subd. 6. First, third and fourth sentences, adapted see Code § 3347 subd. 0. Adapted, see Code § 3347, subd, 6. Last sentence adapted, see Code § 3347, subd. 6. Adapted. Modified, adapted, see Code § 3347, subd. 6. Adapted, see Code § 3347, subd. 6. 416 417 418 419 420 421 422 423 424 425 426 427 428 429 429 Except last sentence .... Last sentence Adapted. New 430 3047 535 SOURCE TABLE Justice Court Act, §§ 431-481 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 431 Section 797 3048 3049 3050 1335 3051 3052 3053 3054 3055 3056 3068 3069 3070 3072 3071 3073 Subd. 1, adapted, see Code §§ 3047, 3048. 432 433 434 Except last sentence. Adapted, see Code § 3050. 435 436 437 438 439 440 441 442 443 444 445 446 447 448 General rule of practice 46. 449 3062 3062 3063 3066, 3067 3064 3065 3057 3059 3060 305S 3061 723 764 450 Except first clause. 451 452 Combined, rewritten, amended. 453 Rewritten, modified. 454 Rewritten, amended. 455 456 457 458 459 460 Adapted, see Code § 3347, subd. 6. 461 Adapted. 462 New, see General Construction Law, 463 3343 3135 3156 3157 3158 3140 3141 3142 938 3144 3145 3146 3147 3148 3150 3151 3152 3155 3143 §20. Subd. 2. 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 CLEVENGBB'S TABLED OF PRACTICE ACTS 536 Justice Court Act, §§ 482-494 Justice Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 4S2 Section 3149 3136 3137 3138 3139 3343 728 3343 3343 3153 'J S3 434 4S5 486 487 Subd 11. 488 Adapted see Code § 3347 subd. 6. Subd 9 489 490 Subd 10 491 492 Judiciary law § 15 first part adapted. New. 493 494 537 SOURCE TABLE COURT OF CLAIMS ACT Court of Claims Act Code of Civil Procedure Portion of code section or other statement respecting source Section 1 Section n 263 282 263 279 283 266 280 267 271 273 264 268 265 264 270 270 284 284 281 265-a 264 284 269 264 270 268-a 275 268-b 276 277 278 274 274 272 Except 12tli and 13th sentences 3 amended. Except second sentence omitted. 4 12th and 13th sentences. 5 6 i Except last sentence. 8 10 11 12 Except 5th-10th sentences. 13 Except last sentence omitted. 14 15 Sixth sentence. 16 Second sentence. 17 Except second and last sentence. 18 First two sentences. 19 Third sentence. 20 21 22 7th, 8th, 9th, 10th, sentence. 23 Except first three sentences. 24 25 5th sentence. 26 Last sentence. 28 28-a 29 30 31 32 First sentence. 33 Last sentence. 34 35 New. 36 New. 37 New. CLETENGER'8 TABLES OF PBACTWE ACTS NEW YORK CITY COURT ACT 53S New York City Court Act Code of Civil Procedure Portion of code section nr other statement respecting source Section 1 Section 2 320 .321 322 328 329 330 331 1245 1246 1247 332 333 3.33 335 336 333 337 315, 1275 316 317 318 319 319-a 345 346 344 326 327 3163 3172 1013 3173 3175 339-a 324 325 338 3 4 5 6 7 8 , 9 First two sentences adapted. First sentence adapted. 10 10 Except last paragraph . . Last paragraph- ■ . 11 12 13 14 15 16 Second sentence 17 18 pt. 19 20 21 22 Except last sentence. 23 24 Adapted see Code § 319. Adapted see Code § 319. Adapted see Code § 319. 25 26 27 28 29 30 ■ 31 See § 3160 subd. 2 omitted. 32 33 34 35 36 37 37 Except subdivision 7 Subd. 7 38 339 3161 §1345. 39 39 Except subdivision 7 Subd. 7 New 40 31C.2 3171 3164 3108 3169 41 42 43 44 44 Except last paragraph. . . Last paragraph 45 323 3177 3178 § 1345. 46 47 539 SOUIiGE TABLE New York City Court Act, §§ 48-82 New York City Court Act Code of Civil Procedure Portion of code section or other statement respecting source Section 4S Section 3179 3180 3181 3182 3183 3184 3185 3186 3187 3165 49 50 51 52 53 54 55 56 57 57 Except subdivision 3 . . . . Subd. 3 New, see Greater New York Charter, 58 3166 3170 3174 3176 319-b 3255 3251 3160 3160 3164-a 1346 1349 1347 1348 3189 3190 3191 3193 3194 3194-a 3190 3160 3159 § 1345. 59 59 60 Except last sentence .... Last sentence New, see Greater N. Y. Charter § 1345. 61 62 63 64 Subd. 3, last par. Last sentence. 65 66 67 68 Adapted see Code § 3188. Adapted see Code §§ 3188, 3189.' Adapted see Code § 3189. Adapted see Code § 3189. Last sentence. 69 70 71 72 First sentence. 74 Amended. 76 78 Last sentence Code § 3192 adapted. 79 First sentence rewritten. 80 Adapted rewritten. 81 New. 82 New. 541 CONSECUTIVE SECTIONS TABLE §§ 1-U6 PARALLEL SECTIONS TABLE The following Table shows consecutively where every section of the Code of Civil Procedure is now located in the Civil Practice Act, Rules of Civil Practice, Surro- gate's Court Act, Justice's Court Act, New York City Court Act, Court of Claims Act, or Consolidated Laws. c.c.P. Section Now Located In 1... Civil Practice Act, S 62, first sentence. ..Judiciary Law, § 2. ..Judiciary Law, I 3. .Civil Practice Act, § 62, second sentence. .Judiciary Law, § 4. .Judiciary Law, § 5. .Civil Practice Act, % 63. • Judiciary L,aw, ( 750. . . Judiciary Law, I 751. .Judiciary Law, I 751. . . Judiciary Law, § 752. .Judiciary Law, § 754. . . Penal Law, § 602. ..Judiciary Law, § 753. ..Civil Eights Law, § 20. .Civil Eights Law, S 21. .Judiciary Law, |§ 93, 94. . . Judiciary Law, §§ 52, 95. .Judiciary Law, |§ 154, 193. . .County Law, S 240. State Finance Law, § 46. .Judiciary Law, § 87. .Eule 10. .Omitted. . . Eule 13. .Civil Practice Act, § 79. ..Civil Practice Act, I 78. 27... Judiciary Law, IS 28, 158, 194. 28... County Law, I 245. 29... Repealed 1892, c. 677. 30... Judiciary Law, I 29. 31 . . . County Law, I 42. New York Charter, S 62. . .Penal Law, § 1790. .Penal Law, 8 1790. ..Judiciary Law, §§ 7, 534, 540. ..Judiciary Law, I 6. ..Judiciary Law, § 6. part... Civil Practice Act 8 437, subd. 1. .Eule 159. . . Judiciary Law, I 8. .Judiciary Law, I 8. State Finance Law, § 46. .Judiciary Law, § 9. .Civil Practice Act, S 437, subd. 2. Judiciary Law, § 10. .Judiciary Law, § 11. .Judiciary Law, S 12. . Civil Practice Act, § 92 ; Code Crim. Proc. § 10-e. .Civil Practice Act, 5 436; Code Crim. Proc. § 10-f. ..Judiciary Law, §§ 15, 22. .Judiciary Law, i 20. .Judiciary Law, § 16. .Judiciary Law, §§ 17, 21, 471. .Judiciary Law, §§ 18, 471. . . Judiciary Law, § 19. ..Civil Practice Act, § 93. ..Civil Practice Act, § 94. 64. . .Executive Law, 8 29. Judiciary Law, 8 23. 55... Civil Practice Act, § 236. 56... Judiciary Law, |§ 53, 56, 88, 460, 465, 467 2.. 3.. 4. 5. 6. 7. 8.. 9.. 10.. 11.. 12.. 13.. 14.. 15.. 16. 17.. 18. 19.. 20.. 21.. 22.. 23.. 24. 25.. 26.. 32.. 83.. 34.. 35. 36. 37, 87. 38.. 39. 40.. 41.. 42.. 43.. 44.. 45.. 46.. 47. 48.. 49.. 50.. 61. 52. 53. C.C.P. Section Now Located In 57. . .Executive Law, 8 30. Judiciary Law, 8 53. 58 . . . Judiciary Law, § 53. 59. . .Judiciary Law, §§ 264, 466. 60. . .Judiciary Law, § 470. 60... Rule 20, subd. 4, last two sentences. 61 . . . Judiciary Law, § 250. 62. . .Judiciary Law, 8 473. 63... Penal Law, I 271. 64... Penal Law, 8§ 272, 1876. 65, part. . .Civil Practice Act, § 240. 66. . .Judiciary Law, §§ 474, 475. 67... Judiciary Law, §§ 88, 477. 68... Judiciary Law, 65 88, 476. 69 ... Judiciary Law, § 478. 70... Penal Law, 8 273. 71. ..Penal Law, § 273. 72. . .Judiciary Law, § 479. 73... Penal Law, § 274. § 274. 8 274. 8 275. 8 276. 8 278. § 278. 74 ... Penal Law, 75. . .Penal Law, 76 . . . Penal Law, 77. . .Penal Law, 78 . . . Penal Law, 79 . . . Penal Law, 80. . .Penal Law, 8 278. 81 . . . Penal Law, 8 279. 82... Judiciary Law, §§ 290, 291, 293, 294. 83... Judiciary Law, 8§ 14, 24, 295-297, 301. 84... Judiciary Law, §§ 292, 298, 299, 302. 85. . .Judiciary Law, § 300. 86. . .Judiciary Law, § 303. 87. ..Judiciary Law, 8 304. 88. . .County Law, 8 12. 89. . .Judiciary Law, §§ 101, 156, 159. 89... County Law, §§ 170, 264, 280, 281. 90. . .Judiciary Law, § 251. 91 ... Judiciary Law, S§ 169, 199, 365, 366. 92. . .Judiciary Law, § 406. 93. . .Judiciary Law, § 30. 94... Judiciary Law, S§ 167, 200, 381, 388. .Judiciary Law, §§ 168, 200. .Judiciary Law, §§ 230, 349, 351, 354. .Judiciary Law, S§ 160, 170, 201, 231-233, 279, 403, 405. .Judiciary Law, § 343. 99 ... Judiciary Law, § 407. 100... Civil Practice Act, 8 102, subd. 1. .Civil Practice Act, § 102, subd. 3. .Civil Practice Act. § 102, subds. 2, 4. .Civil Practice Act, 6 102, subd. 5. .Judiciary Law, § 400. .Judiciary Law, § 401. .Penal Law, § 1848. .Military Law, § 115. .Civil Practice Act, 8 103. .Civil Practice Act, 8 104. .Prison Law, § 24. 111... Civil Eights Law, 8 72. 112. . .County Law, 8 240. 113.. .Prison Law, § 340. 114. . .Prison Law, 8 341. 115. . .Prison Law, 8 342. 116... Prison Law, § 343. 95. 96. 97. 98.. 101.. 102. . 103.. 104.. 105.. 106.. 107.. 108.. 109.. 110. §§ 117-269 CLKYENGER'S TABLES OP PBAGTICE ACTS 542 C.C.P. Section Now Located In 117... Prison Law, § 344. 118 . . . Prison Law, § 23. 119. . .Civil Eights Law, § 22. 120.. .Repealed 1909, c. 47. 121. . .County Law, § 90. 122... Prison Law, § 347. 123... Prison Law, § 345. 124 . . . Prison Law, § 346. 125... Penal Law, § 1875. 126... Prison Law, § 348. 127, part...CiTil Practice Act, § 769, subd. 2; 127... Prison Law, § 355. 128. ..Prison Law, § 349. 129 .. . Prison Law, § 350. 130. . .Penal Law, § 1791. 131... Civil Practice Act, § 166. 132... Civil Practice Act, § 165. 133 .. . Prison Law, § 22, 134 .. . Prison Law, § 22. 135... Prison Law, § 351. 136... Prison Law, § 352. 137.. .Prison Law, § 353. 138... Prison Law, § 363. 139 .. . Prison Law, § 367. 140... Prison Law, § 369. 141... Prison Law, § 369. 142 . . . Prison Law, § 369-a. 143... Prison Law, § 354. 144 . . . Prison Law, § 356. 145... Prison Law, § 357. 146... Prison Law, § 358. 147... Prison Law, § 359. 148 . . . Prison Law, § 360. 149 . . . Prison Law, § 362. 150... Prison Law, § 364. 151... Prison Law, § 365. 152. . .Prison Law, § 365. 153 . . . Prison Law, § 366. 154... Prison Law, § 366. 155... Prison Law, § 369-b. 1.56... Code Crim. Proc. § 312-a. 157... Prison Law, § 361. 158 . . . Prison Law, § 369-c. 159... Penal Law, § 1839. 160... Prison Law, § 369-f. 161 .. . Prison Law, § 369-g. 162... Prison Law, § 369-li. 163... Prison Law, § 369-li. 164... Prison Law, § 369-1. 165... Prison Law, § 369-:. 166... Prison Law, § 369-k. 167 .. . Prison Law, § S69-k. 168... Prison Law, § 309-!. 169... Prison Law, § 369-m. 170... Prison Law, § 369-n. 171 .. . Prison Law, § 369-e. 172... County Law, § 196. 173. . .County Law, § 197. 174... County Law, § 198. 175.:. County Law, § 199. 176... County Law, § 199-a. 177... County Law, ? 199-b. 178... County Law, § 199-c. 179... County Law, § 109-d. 180... County Law, § 199-e. 181... County Law, § 199-f. 181-a. County Law, § l.")4. 182... County Law, § 195. 183... County Law, S V.^r,. 184 . . . County Law, § 195. 185... County Law, § 195. 186... County Law, § 195. 187... County Law, § 195. 188. . .County Law, § 195. 189... County Law, § 195. 190... Civil Practice Act, 8 588. 191... Civil Practice Act, § 589. 192 ... Repealed 1895, c. 946. 193. . .Judiciary Law, §§ 61, 53. 194, part. . .Civil Practice Act, §8 605, 606. 195... Civil Practice Act, 8 142. 196. . ..Judiciary Law, § 54. 197. . .Judiciary Law, 8 54. C.C.P. Section Now Located In 198. . .Judiciary Law, 8 57. 199. . .Judiciary Law, 88 62, 256. 200... Judiciary Law, 8§ 257, 258. 201.. .Judiciary Law, §8 257, 258. 202 ... Judiciary Law, §8 58, 259, 262. 203... County Law, 8 12. Judiciary Law, 8 55. 204-8. . .Bepealed 1894, c. 135. 209. . .Judiciary Law, 8 SOO. 210... Judiciary Law, 88 60, 61, 431. 211. . .Judiciary Law, 8 433. 212. . .Executive Law, 8 31. Judiciary Law, 8 435. 213. . .Executive Law, 8 32. 214 .. . Judiciary Law, § 4.S2. 215... Judiciary Law, 8 432. 216.. .Judiciary Law, §8 256, 434. 217 .. . Civil Practice Act, 8 64. 218... Civil Practice Act, 8 189. 219 . . . Judiciary Law, S 70. 220.. .Judiciary Law, 88 71, 72, 77, 81, 82, 85, 90. 221... Judiciary Law, §8 101, 106, 109, 111, 26Z, 268, 270, 271, 307, 347. 222 ... Judiciary Law, 8 73. 223. . .Judiciary Law, 8 72. 224.. .Repealed 1895, c. 946. 225 . . . Judiciary Law, 8 78. 226 . . . Executive Law, 8 '33. Judiciary Law, 8 79. State Finance Law, 8 46. 227.. .Repealed 1895, c. 946. 228. . .Judiciary Law, 8 80. 229 . . . Civil Practice Act, 8 143. 229. . .Judiciary Law, 8 148. 230. . .Judiciary Law, 8 81. 231... Civil Practice Act, 8 618. 232. . .Judiciary Law, IS 84, 96, 148-150, 264. 233 ... Executive Law, 8 33. Judiciary Law, 8 151. State Finance Law, 8 46. 234 ... .Judiciary Law, §8 79, 153. 235 . . . Civil Pratlce Act, 8 65. 235. . .Judiciary Law, § 155. 236. . .Repealed 1895, c. 496. 237. . .Judiciary Law, 8 86. 238. . .Judiciary Law, § 152. 239 . . . Civil Practice Law, 8 438. 239... Judiciary Law, 88 148, 276, 364, 404. 240. . .Repealed 1895, c. 946. 241 . . . Civil Practice Act, 8 77. 242... Judiciary Law, 88 89, 264, 342, 402. 243 .. . Judiciary Law, S§ 342, 402. 244 . . . Judiciary Law, § 90. 245. . .Judiciary Law, 8 91. 246.. .Judiciary Law, 68 92, 264, 437, 439-441. 247. . ..Tudiciary Law, 88 442, 443. 248. . ..Tudiciarv Law, §8 264, 438. 249. . .Executive Law, 88 31, 32. Judiciary Law, 8 444. 250. . .Judiciary Law, 8 445. 251. . .Omitted. 252. . .Repealed 1895, c. 946. 253. . .Repealed 1895, c. 946. 254. . .Judiciary Law, 8§ 161, 309, 316. 255. . .Judiciary Law, 8 312. 256. . .Judiciary Law, 88 161, 309. 257. . .Judiciary Ixiw, 8 316. 258. . .Judiciary Law, §§ 161, 309, 313. 259.. .Judiciary Law, 8 313. 260. . .JudiciaiT Law, 88 164, 314. 261. . .Repealed 1890, c. 426. 262.. .Judiciary Law, 88 162, 163. 263, part. . .Court of Claims Act, §8 2, 4. 264, part... Court of Claims Act, 88 12, 15, 23, 26. 265 .. . Court of Claims Act, § 14. 265-a. . .Court of Claims Act, § 22. 266, part. . .Court of Claims Act, 8 7. 267... Court of Claims Act, 8 9. 268, part. . .Court of Claims Act, 8 13. 268-a . . . Court of Claims Act, 8 28. 269. . .Court of Claims Act, I 25. &43 GONSEOUTIYE SECTION TABLE §§ 270^40 C.C.P. Section Now Located In 270, part. . .Court of Claims Act, §§ 16, 17, 27. 271 . . . Court of Claims Act, § 10. 272... Court of Claims Act, § 35. 273... Court of Claims Act, § 11. 274... Court of Claims Act, §§ 33, 34. 275... Court of Claims Act, I' 29. 276 .. . Court of Claims Act, § 30. 277 . . . Court of Claims Act, § 31. 278. . .Court of Claims Act, § 32. 279 . . . Court of Claims Act, § 5. 280... Court of Claims Act, § 8. 281... Court of Claims Act, § 20. 281-a. . .Court of Claims Act, § 21. 282, part . . . Court of Claims Act, S 3. 283 .. . Court of Claims Act, § 6. 284. . .Court of Claims Act, §§ 18, 19, 24. 285-313. . .Repealed 1895, c. 946. 314. ..Repealed 1877, c. 416. 315... New York City Ct. Act, § 18. 316... New York City Ct. Act, § 19. 317... New York City Ct. Act. § 20. 318... New York City Ct. Act. § 21. 319... New York City Ct. Act. § 22. 319-a . . . New York City Ct. Act, § 23. 319-b. . .New York City Ct. Act, § 62. 320 .. . New York City Ct. Act, § 2. •'321... New York City Ct. Act, § 3. 322... New York City Ct. Act, § 4. 323 .. . New York City Ct. Act. § 45. 324 .. . New York City Ct. Act, § 35. 325 .. . New York City Ct. Act, § 36. 326... New York City Ct. Act, § 27. 327... New York City Ct. Act, § 28. 328 .. . New York City Ct. Act, § 5. 329 .. . New York City Ct. Act, § 6. 330... New York City Ct. Act, § 7. 331... New York City Ct. Act, § 8. 332... New York City Ct. Act, § tl. 333... New York City Ct. Act, §§ 12, 13, 18. 334... Penal Law, § 1634. 335... New York City Ct. Act, S 14. 336 .. . New York City Ct. Act, § 15. 337... New York City Ct. Act, § 17. 338... New York City Ct. Act, § 37. 339... New York City Ct. Act, § 38. 339-a...New York City Ct. Act, § 34. 340... Civil Practice Act, § 67. 341 .. . Civil Practice Act, § 68. 342... Civil Practice Act, §§ 73, 190. 343... Omitted. 344, part... Civil Practice Act, § 190. 344... New York City Ct. Act, § 26. 345... Civil Practice Act, §| 168, 190; New York City Ct. Act, § 24. 346 .. . Civil Practice Act, § 95 ; New York City Ct. Act, § 25. 347... Civil Practice Act, § 72. 348... Civil Practice Act, §§ 69, 74. 349 .. . Civil Practice Act, § 75. 350. . .Judiciary Law, § 798. 351. . .Judiciary Law, § 799. 352.... Judiciary Law, I 799-a. 353... Omitted. 354... Civil Practice Act, § 130, subd. 1. 355... Civil Practice Act, § 70. 355. . .Judiciary Law, §§ 190. 191. 356... Civil Practice Act, § 76. 357... Judiciary Law, §§ 533, 541. 368... County Law, § 12. Judiciary Law, § 107. 359.. ..Judiciary Law, §§ 196, 197, 285, 318, 819. 360... Judiciary Law, §§ 198, 382-385. 361... Judiciary Law, §§ 197, 318, 319. 362... Civil Practice Act, § 31. 363... Civil Practice Act, § 32. 364... Civil Practice Act, § R3. 365... Civil Practice Act, § 34. 366... Civil Practice Act, § 34. 367... Civil Practice Act, § 3fi. 368... Civil Practice Act, S 35. 369... Civil Practice Act, § 37. 370... Civil Practice Act, § 38. 371... Civil Practice Act, § 39. 372... Civil Practice Act, § 40. 373... Civil Practice Act, § 41. C.C.P. Section Now Located In 374... Civil Practice Act, § 42. 375... Civil Practice Act, § 43; Public Lands Law, § 139-f. 376... Civil Practice Act, § 44. 377... Civil Practice Act, § 45. 378... Civil Practice Act, § 44. 379 . . . Civil Practice Act, § 46. 380... Civil Practice Act, §§ 47-51; Justice Ct. Act, § 13. 381... Civil Practice Act, I 47. 382... Civil Practice Act, § 48. 383... Civil Practice Act, § 49. 384. . .Civil Practice Act, I 50. 385 .. . Civil Practice Act, § 51. 386... Civil Practice Act, S 56. 387 .. . Civil Practice Act, § 52. 388 .. . Civil Practice Act, § 53. 389... Civil Practice Act, § 54. 390, part... Civil Practice Act, § 55. 390-a, part. . .Civil Practice Act, § 13. 391... Civil Practice Act, S 12. i 392... Civil Practice Act, § 57. 393 .. . Civil Practice Act, I 58. 394... Civil Practice Act, § 49, subd. 4. 395 .. . Civil Practice Act, § 59. 396 . . . Civil Practice Act, § 60. 397... Civil Practice Act, § 61. , 398... Civil Practice Act, § 16. 399... Civil Practice Act, § 17. 400... Civil Practice Act, § 18. 401... Civil Practice Act, § 19. , 402... Civil Practice Act, § 20. 403 . . . Civil Practice Act, §§ 21, 22. 404... Civil Practice Act, § 27. 405... Civil Practice Act, § 23. 406... Civil Practice Act, § 24. 407... Civil Practice Act, § 14. 408... Civil Practice Act, § 28. 409... Civil Practice Act, § 29. 410... Civil Practice Act, § 15. 411 .. . Civil Practice Act, § 25. 412... Civil Practice Act, § 26. 413... Civil Practice Act, § 30; Justice Ct. Act, I 13. 414, part. . .Civil Practice Act, § 10. 415... Civil Practice Act, § 11. 416... Civil Practice Act, §§ 218, 825. 417... Rule 45, first paragraph. 418, part. . .Civil Practice Act, § 218. 418... Rule 45, last two paragraphs. 419, part... Civil Practice Act, § 257. 420... Civil Practice Act, § 485. 421, part. . .Civil Practice Act, I 237. 422... Civil Practice Act, §§ 238, 263. 423... Civil Practice Act, § 1478. 424... Civil Practice Act, § 237, part. 425... Civil Practice Act, I 220. 426, part... Civil Practice Act, § 225. 426, subd. 2... Civil Practice Act, S 208. 426, subd. 3 . . . Prison Law, § 369-d. 427... Civil Practice Act, § 226. 428, part... Civil Practice Act, §§ 208, 226. 429... Civil Practice Act, § 225. 430... Civil Practice Act, § 227; Justice Ct. Act, § 59. 431 .. . Civil Practice Act, § 228 ; Justice Ct. Act, § 50. 431, subd. 3. . .Justice Ct. Act, § 51, subd. 1. 432... Civil Practice Act, § 229. 432, subds. 1-3. . ..Justice Ct. Act, § 51, subd. 2. 432. . .General Corporation Law, § 16, 433 . . . Rule 21, except last sentence. 434... Rule 53, subd. 1, first clause. 434... Rule 53, subd. 1, (a) clause. 434... Rule 53, subd. 1, (b) clause. 434. . .Rule 53, subd. 3. 434 . . . Rule 53, subd. 4, 7-8. 435... Civil Practice Act, § 230. 436 . . . Civil Practice Act, § 231 ; Surrogate Ct. Act, § 55. 437. . .Surrogate Ct. Act, § 55. 437... Rule 49. 438... Civil Practice Act, § 232. 439... Civil Practice Act, § 232, second last par. 440, part. . .Civil Practice Act, § 234. 440-537 CLEYENaEmS TABLES OF PRACTICE ACTS 544 Justice C.CP. Section Now Located I.\ 440...EuIe 50. 441... Rule 51, except last sentence. 442... Rule 52, first two paragraphs. 443, subd. 2... Civil Practice Act, § 233. 443, SUM. 3... Civil Practice Act, § 235. 443, subd. 6... Civil Practice Act, § 233. 443, subd. 6... Civil Practice Act, § 483. 443... Rule 52, third paragraph. 443... Rule 53, subd. 6. 443... Rule 51, last sentence. 444. . .Surrogate Ct. Act, § 61. 444. . .Rule 53, subd. 5. 444 .. . Rule 53, subds. 7-8. 446... Civil Practice Act, § 217. 446... Civil Practice Adt, |§ 209, 211: Ct. Act, § 25. 447, part... Civil Practice Act, § 259. 447, part... Civil Practice Act, §§ 214, 221; Jus- tice Ct. Act, § 26. 448... Civil Practice Act, §§ 194, 195. 449... Civil Practice Act, § 210; Justice Ct. Act, § 27. 450. . .Civil Practice Act, 8 200. 450. . .Justice Ct. Act, § 28. Domestic Relations Law, § 51. 451... Civil Practice Act, I 215. 452... Civil Practice Act, § 193. 453, part... Civil Practice Act, §§ 219, 220. 453... Rule 48. 454... Civil Practice Act, Ct. Act, § 29. 455 . . . Civil Practice Act, Ct. Act, § 30. 456... Civil Practice Act, 457... Civil Practice Act, last sentence. 458... Civil Practice Act, § 37. 458... Rule 35, first paragraph. 459, subd. 2... Civil Practice Act, § 199. 459.. .Justice Ct. Act, § 38. 459. . .Rule 35, remainder of rule. 460. . .Justice Ct. Act, § 39. 460... Rule 36, first sentence. 461. . .Civil Practice Act, §§ 197, 1455. Justice Ct. Act, § 40. 462. . .Justice Ct. Act, § 41. 462... Rule 36, last sentence. 463... Civil Practice Act, § 198. 464. . .Rule 37, first sentence. 465... Rule 37, last sentence. 466... Civil Practice Act, § 558; Justice Ct. Act, § 43. 467. . .Civil Practice Act, § 1455 ; Justice Ct. Act, § 42. 468... Civil Practice Act, § 201; § 31. 469, part... Civil Practice Act, 470, part... Civil Practice Act, 471, part... Civil Practice Act, 471... Rule 39. 472, part... Civil Practice Act, § 202. 472. . .Rule 40, subd. 5. 473, part... Civil Practice Act, §§ 206, 224, 239. 474... Rule 41. 475. . .Rule 41. 476... Rule 41. § 216, subd. 1 ; Justice § 216, subd. 2 ; Justice § 475. § 216, subd. 3; § 475, § 196 ; Justice Ct. Act, Justice Ct. Act, i 205. i§ 203, 204. §§ 202-204. 477, part... Civil Practice Act, § 205. 477-a.. .Civil Practice Act. § 207. 478... Civil Practice Act, § 254; Justice Ct. Act, § 128. 479. . .Civil Practice Act, §§ 257, 263. 480... Civil Practice Act, § 257. 481... Civil Practice Act, § 255. 481, part. . .Civil Practice Act, § 241. 482... Civil Practice Act, § 256. 483... Rule 90, first sentence. 484... Civil PracHce Act, § 258. 486-6. Repealed 1877, c. 416. 487... Civil Practice Act, § 260; Justice Ct. Act, % 131. 488... Civil Practice Act, § 278; Justice Ct. Act, i 132. 489. . .Repealed 1877, e. 416. C.CP. Section Now Located I.v 490... Civil Practice Act, § 280; Justice Ct. Act, § 133. 491. ..Repealed 1877, c. 416. 492... Civil Practice Act, § 281; Justice Ct. Act, § 134. 493. . .Civil Practice Act, § 277. 494. . .Justice Ct. Act, § 144. 495... Civil Practice Act, § 278; Justice Ct. Act, § 145. 496... Civil Practice Act, § 280; Justice Ct. Act, § 146. 497, part. . .Civil Practice Act, § 96. 498... Civil Practice Act, § 278; Justice Ct. Act, § 147. 499. . .Civil Practice Act, §§ 278, 279 ; Justice Ct. Act, I 148. 500... Civil Practice Act, § 261; Justice Ct. Act, § 136. 501... Civil Practice Act, § 266; Justice Ct. Act, § 138. 502... Civil Practice Act, § 267; Justice Ct. Act § 139. 503... Civil Practice Act, § 477. 504... Civil Practice Act, § 477, last sentence; Justice Ct. Act, § 265. 505... Civil Practice Act, § 268; Justice Ct. Act, § 142. 506... Civil Practice Act, § 269; Justice Ct. Act, § 143. 507... Civil Practice Act, § 262. 507. . .Rule 90. 508... Civil Practice Act, § 262; Justice Ct. Act, § 167. 509... Civil Practice Act, § 270; Justice Ct. Act, § 168. 510. . .Repealed 1877, c. 416. 511. . .Civil Practice Act, § 1442 ; Justice Ct. Act, § 169. 512, part... Civil Practice Act, § 488; Justice Ct. Act, § 266. 512. . .Rule 202, subd. 2. 513... Civil Practice Act, § 251. 514... Civil Practice Act, § 272. 515... Civil Practice Act, § 494. 516... Civil Practice Act, § 274. 517, part. . .Civil Practice Act, § 272. 518. . .Omitted. 519... Civil Practice Act, § 275; Justice Ct. Act, § 163. 520, part. . .Civil Practice Act, §§ 203, 273. 520. . .Rule 91. 521... Civil Practice Act, § 264. 522. . .Civil Practice Act, § 243 ; Justice Ct. Act, § 156. 523. . .Civil Practice Act, § 24S ; Code Crim. Proc. § 392-a. 524... Civil Practice Act, § 276; Justice Ct. Act, § 152. .^25. . .Justice Ct. Act, § 153. 525... Rule 99. 526. . .Justice Ct. Act, § 154. 526.. .Rule 100. 527... Civil Practice Act, § 249. 52S... Civil Practice Act, § 253; Justice Ct. Act, § 155. 529... Civil Practice Act, § 250. 530. . .Justice Ct. Act, § 159. 530. . .Rule 98. 531... Civil Practice Act, §§ 246, 247. Justice Ct. Act, § 158. 532 ... Justice Ct. Act, § 161. 532... Rule 95. 533.. .Justice Ct. Act, § 162. 533. . .Rule 92. 534... Justice Ct. Act, § 149. 534. . .Rule 94. 535. part. . .Civil Practice Act, § 333. 535, . .Rule 96. 536... Civil Practice Act, § 339. 536, part. . .Justice Ct. Act, § 160. 537, part... Civil Practice Act, § 1487. 537.. .Rule 103. Rule 104. 545 CONSECUTIVE SECTION TABLE il 538-675 C.CP. Section Now Located In 638... Rule 103. Rule 104. 539, part... Civil Practice Act, § 434, first sen- tence. 539. . .Justice Ct, Act, § 164. 539.. .Rule 166. 540...Ci¥iI Practice Act, § 434, third sentence; Justice Ct. Act, § 165. 541... Civil Practice Act, § 434, last sentence; Justice Ct. Act, § 166. 542... Civil Practice Act, § 244. 543... Rule 101. 544... Civil Practice Act, § 245. 545, part. . .Civil Practice Act, § 1488. 545... Rule 103. 548... Rule 102. 547... Civil Practice Act, § 476. 547... Rule 112. 548. . .Civil Rights Law, § 23. 549... Civil Practice Act. § 826. 550... Civil Practice Act, § 827, first sentence. 551, part... Civil Practice Act, § 818; § 827, last 552... Civil Practice Act, § 828. 553... Civil Practice Act, § 829. 554... Civil Practice Act, § 830. 555... Civil Practice Act, § 831. 556... Civil Practice Act, § 817. 557... Civil Practice Act, § 833. 557, part... Civil Practice Act, § 816. 557... Rule 81. 558, part... Civil Practice Act, §§ 818, 834. 559... Civil Practice Act, § 835. 559, part. . .Civil Practice Act, §§ 819, 837. 560... Civil Practice Act, § 836. 561, part... Civil Practice Act, § 838. 561... Rule 82. 561... Rule 84, first sentence. 562, part... Civil Practice Act. § 839. 563... Civil Practice Act, § 840. 564... Civil Practice Act, § 841; Justice Ct. Act, § 73, 565... Civil Rights Law, § 24. 566, part... Civil Practice Act, § 263. 567, part... Civil Practice ,'\ct, § 842. 567... Rule 83, except last sentence. 568, part. . . Civil Practice Act, §§ 816, 844, 845. 589... Repealed 1877, e. 416. 570. . .Repealed 1877, c. 416. 571. . .Repealed 1877, c. 416. 572... Civil Practice Act, I 846. 573... Civil Practice Act, § 847. 574... Civil Practice Act, § 848. 575... Civil Practice Act, § 849. 576... Civil Practice Act, § 850. 577... Civil Practice Act, I 851. 578... Civil Practice Act, § 852. 579... Civil Practice Act, § 853. 580... Civil Practice Act, § 854. 581... Civil Practice Act, § 855. 582... Civil Practice Act, I 856. 583... Civil Practice Act, § 857. 584 . . . Civil Practice Act, § S.'jS. 585... Civil Practice Act, § 8.=ifi. 586... Civil Practice Act, § 860. 587... Civil Practice Act, § 861. 588... Civil Practice Act, § 862. 589... Civil Practice Act, § 863. 590... Civil Practice Act, § 864. 591... Civil Practice Act, § 865. 592... Civil Practice Act, § 866. 593... Civil Practice Act, § 867. 594... Civil Practice Act, § 868. 595... Civil Practice Act, § 869. 596... Civil Practice Act, § 870. 597... Civil Practice Act, § 871. 598... Civil Practice Act, § 872. 599... Civil Practice Act, § 873. 600... Civil Practice Act, § 874. 601... Civil Practice Act, § 875. 602... Civil Practice Act, § 876. 603... Civil Practice Act, § 877. 604... Civil Practice Act, § 878. 604, part. . .Civil Practice Act, § 816. 605 .. . Civil Practice Act, § 879. C.CP. Section Now Located In 606... Civil Practice Act, § 880. 606, part. . .Civil Practice Act, § 817. 607... Civil Practice Act, 8 881. 607, part. . .Civil Practice Act, § 816. 608, part. . .Civil Practice Act, § 818. 609... Civil Practice Act, § 882. 610... Civil Practice Act, § 883. 610, part. . .Civil Practice Act, § 821. 611... Civil Practice Act, § 884. 611, part. . .Civil Practice Act, § 81'.1. 612... Civil Practice Act, § 885. 613... Civil Practice Act, § 886. 614... Civil Practice Act, § 887. 615 .. . Civil Practice Act, § 888. 616... Civil Practice Act, § 889. 616, part. . .Civil Practice Act, § 819. 617... Civil Practice Act, § 890. 618... Civil Practice Act, § 891. 619 .. . Civil Practice Act, § 892. 620... Civil Practice Act, § 893. 620, part. . .Civil Practice Act, § 819. 621 .. . Omitted. 622... Repealed 1877, c. 416. 023... Civil Practice Act, I 894. 624... Civil Practice Act, § 895. 625... Civil Practice Act, § 896. 626... Civil Practice Act, § 897. 627... Civil Practice Act, § 898. 627, part. . .Civil Practice Act, § 816. 628... Civil Practice Act, § 899. 629... Civil Practice Act, § 900. 630... Civil Practice Act, § 901. 031... Repealed 1877, c. 416. 632. . .Repealed 1877, c. 416. 633. . .Repealed 1877, c. 416. 634... Repealed 1877, c. 416. 635... Civil Practice Act, § 902; New York City Ct. Act, § 44. 636... Civil Practice Act, § 903. 636, part. . .Civil Practice Act, § 816. (1.T7... Civil Practice Act, § 004. 637, part. . .Civil Practice Act, § 816. 038 . . . Civil Practice Act, § 905. 038, part... Civil Practice Act, |§ 817, 818. 639... Civil Practice Act, I 906. 640... Civil Practice Act, § 907. 640, part... Civil Practice Act, §§ 819, 908. 641... Civil Practice Act, § 910. 041, part. . .Civil Practice Act, §§ 821, 909. 642... Civil Practice Act, § 911. 643. . .Repealed 1877, c. 416. 644... Civil Practice Act, § 912. 645... Civil Practice Act, § 913. 646... Civil Practice Act, § 914. 647,.. Civil Practice Act, I 915. 64S.,. Civil Practice Act, § 916. 649... Civil Practice Act, §917. 650... Civil Practice Act, § 918, 6.il... Civil Practice Act, § 919. 652,., Civil I'lactice Act, § 920, 053 . . . Civil Practice Act, § 920. 6."i4. , .Civil Practice Act, § 921. 055 . . . Civil Practice Act, I 922. 656 . . . Civil Practice Act, § 923. 657... Civil Practice Act, § 924, 658.,. Civil Practice Act, § 925, 658-a. . .Civil Practice Act, § 927. 659 , . . Civil Practice Act, § 926, 660 , . . Civil I'ractlce Act, § 928, 661,,. Civil Practice .».ct, S 929. 602 . , , Civil i^ractice Act, § 9.30, 66?,., Civil Practice 'ict, § 931. 064,., Civil Practice Act, § 932, 065... Civil Practice Act, § 933, 600... Civil Pi-articp Act, 5 934. 667, . .Civil Practice Act, § 934, 668.., Civil Practice Act, § 935, 609,,, Civil Practice Act, § 936. 670, , , Civil Practice Act, § 937, 071 , . . Civil Practice Act, § 938. 672 , . , Civil Practice Act, § 939. 673, . , Civil Practice Act, § 939. 674,, , Civil Practice Act, S 940, 675, , , Civil Practice Act, § 941. 676-811 GLBVENGER'S TABLES. OF PRACTICE ACTS 546 C.C.P. Section Now Located In 676... Civil Practice Act, § 942. 677... Civil Practice Act, § 04,H 678... Civil Practice Act, § 944. 670... Civil Practice Act, § 945. 680... Civil Practice Act, § 946. 681... Civil Practice Act, § 947. 682... Civil Practice Act, § 948. 683, part... Civil Practice Act, §§ 816, 949, 050. 684.,. Repealed 1877, c. 416. 685... Repealed 1877, c. 416. 686... Civil Practice Act, § 951. 687... Civil Practice Act, § 952. 688... Civil Practice Act, § 953. 689... Civil Practice Act, § 954. 689, part. . .Civil Practice Act, § 816. 690... Civil Practice Act, § 955. 691... Civil Practice Act, § 956. 692... Civil Practice Act, § 957. 693... Civil Practice Act, § 958. 694... Civil Practice Act, I 958. 695... Civil Practice Act, § 958. 696... Civil Practice Act, § 959. 697... Civil Practice Act, § 960. 698 .. . Civil Practice Act, § 961. 699... Repealed 1877, c. 416. 700... Repealed 1877, c. 416. 701... Civil Practice Act, § 962. 702... Civil Practice Act, § 963. 703 . . . Civil Practice Act, § 964. 704... Civil Practice Act, § 965. 705 . . . Civil Practice Act, § 966. 706... Civil Practice Act, § 968. 707 .. . Civil Practice Act, § 520. 708 .. . Civil Practice Act, § 969. 709 .. . Civil Practice Act, I 970. 710... Civil Practice Act, § 971. 711... Civil Practice Act, § 972. 712... Civil Practice Act, § 973. 713... Civil Practice Act, § 974. 714. . .Civil Practice Act, I 975. 715... Civil Practice Act, § 976. 716... Civil Practice Act, § 977. 716. . .General Corporation Law, § 243. 717 .. . Civil Practice Act, § 978. 718... Civil Practice Act, § 979. 719... Civil Practice Act, § 823. 720 .. . Civil Practice Act, § 824. 721... Civil Practice Act, § 109. 722... Civil Practice Act, § 109, last sentence. 723, part... Civil Practice Act, § 105. 723. . .Justice Ct. Act. § 460. 724. part. . .Civil Practice Act, § 108. 725. ..Omitted. 726... Rule 14. 727... Penal Law, § 2053. 728.. .Justice Ct. Act. § 488. 729... Civil Practice Act, § 150; Justice Ct. Act, § 418. 730... Civil Practice Act, § 150; Justice Ct. Act, § 419. 731 .. . Civil Practice Act, § 171. 732... Civil Practice Act, § 172. 733 .. . Civil Practice Act, § 173. 734... Civil Practice Act, § 173. 735 .. . Civil Practice Act, § 322. 736... Civil Practice Act, § 175. 737... Civil Practice Act, § 176. 738... Civil Practice Act, § 177. 739... Civil Practice Act, § 178. 740... Civil Practice Act, § 179. 741... Repealed 1877, c. 416. 742... Repealed 1877, c. 416. 743.. .Civil Practice Act, § 133. 744. . .County Law, § 240. State Finance Law, I 4. 744-a. State Finance Law, § 44-a. 745... Civil Practice Act, I 134. 746 . . . Banking Law, 8 44. 746... State Finance Law, § 44-c. 747... Civil Practice Act, 8 136. 748... Civil Practice Act, § 136. 749... Civil Practice Act, i 135. C.C.P. Section Now Located In 750... State Finance Law, 8 44-b. 751... Civil Practice Act, § 137. 752 . . . Banking Law, 8 45. 752 . . . State Finance Law, § 44-d. 753 . . . State Finance Law, § 44-e. 754.. .Omitted. 755, part... Civil Practice Act, § 82. 756 . . . Civil Practice Act, § 83. 757... Civil Practice Act, I 84. 758... Civil Practice Act, 8 85. 759... Civil Practice Act, 8 86. 760... Civil Practice Act, § 87. 761... Civil Practice Act, § 88. 762... Civil Practice Act, 8 91- 763... Civil Practice Act, § 478, first sentence. 764... Civil Practice Act, § 89. 764, part. . .Justice Ct. Act, § 461. 765... Civil Practice Act, 8 478, last sentence; Justice Ct. Act, § 257. 766... Civil Practice Act, 8 90; Decedent Estate Law, § 145. 767, part. ..Civil Practice Law, 8 127. 767... Rule 70, except last sentence. 768, part... Civil Practice Act, 88 113, 115, 117, 119, 128. 769... Rule 63, subda. 1, 2, 3. 770... Civil Practice Act, § 116. 771... Rule 67. 772, part. ..Civil Practice Act, § 130, subd. 2; • § 131. 773... Civil Practice Act, 8 130. 774... Civil Practice Act, 8 581. 775 . . . Civil Practice Act, 8 169. 776, part... Civil Practice Act, 8 118. 777.. .Omitted. 778, part... Civil Practice Act, 8 118. 779 .. . Civil Practice Act, 8 1482. 780. .-.Rule 60. 781 .. . Civil Practice Act, § 98. 782. . .Rule 85. 783 . . . Civil Practice Act, 8 98. 784... Civil Practice Act, § 99. 785 . . . Civil Practice Act, I 99 ; Justice Ct. Act, § 429. 786.. .Rule 8. 787... Civil Practice Act, 8 144. 788. . .Repealed. 789... Civil Practice Act, 8 189. 790 . . . Code Crim. Proc. 8 7-a. 791, part... Civil Practice Act, I 138. 792... Civil Practice Act, 8 140. 793... Civil Practice Act, § 141. 794. . .Repealed 1895, e. 946. 795. . .Repealed 1895, c. 946. 796. . .Rule 10, except last sentence. Rule 20, first paragraph. 797, part. . .Justice Ct. Act, 8 431. 797... Rule 20, subds. 1, 2, 3, 5, pL 798... Civil Practice Act, 8 164. 799 .. . Civil Practice Act, 8 163. 800... Rule 20, subd. 5, last part. 801... Civil Practice Act, 8 164. SOl-a. Civil Practice Act, 8 223. 802 , . . Civil Practice Act, 8 163. 802... Rule 20. 803... Civil Practice Act, 8 324. 803, part... Civil Practice Act, 8 324. 804, part... Civil Practice Act, § 324. 805... Civil Practice Act, § 167. 805... Rule 140, also supersedes. 806... Rule 141. 807, part... Civil Practice Act, 8 1468. 807 . . . Rule 141, first sentence. Rule 142. 808... Civil Practice Act, § 325. 809... Civil Practice Act, « 326. 810... Justice Ct. Act, § 416. 810... Rule 25. 811... Justice Ct. Act, § 421. 811, part... Civil Practice Act, 8 156. 811.. .Rule 25, subd. 1. 811... Rule 25, subd. 2. 547 OOXSEGVTIVE SECTIONS TABLE §§ 812^934 C.C.P. Section Now Located In 812, part. ..Civil Practice Act, § 15S. 812. . .Justice Ct. Act, § 420. 812. . .Rule 25, subd. 3. Eule 25, subd. 4. Rule 25, subd. 6. 813, part... Civil Practice Act, §§ 152, 163; Jus- tice Ct. Act § 422. 813-a. Civil Practice 'Act, § 149; Justice Ct. Act, § 423. 814... Civil Practice Act, § 159; Justice Ct. Act, § 424. 815... Civil Practice Act, § 148; Justice Ct. Act § 425 816. . .Justice' Ct. Act, § 417. 816. . .Rule 25, subd. 7. 817 .. . Civil Practice Act, § 96. 818... Civil Practice Act, § 97. 819... Civil Practice Act, § 96. 820. . .Civil Practice Act, § 287. 820-a, part... Civil Practice Act, §§ 285, 286. 821... Civil Practice Act, § 180. 822... Civil Practice Act, § 181. 823... Civil Practice Act, § 430, first sentence. 824, part... Civil Practice Act, § 100. 825... Civil Practice Act, § 101. 826... Civil Practice Act, § 145. 827... Civil Practice Act, § 80. 828 .. . Civil Practice Act, § 346. 829 .. . Civil Practice Act, § 347. 830 .. . Civil Practice Act, § 348. 831... Civil Practice Act, § 349. 832... Civil Practice Act, § 350. 833... Civil Practice Act, § 351. 833... Eule 129. 834... Civil Practice Act, § 352. 835 .. . Civil Practice Act, § 353. 836... Civil Practice Act, § 354. 837... Civil Practice Act, § 355. 838... Civil Practice Act, § 343. 839... Civil Practice Act, § 340. 840... Civil Practice Act, I 342. 841, part. ..Civil Practice Act, §§ 341, 1065. 841-a. Civil Practice Act, § 356. 841-b. Civil Practice Act, §§ 265, 379; Decedent Estate Law, § 131. 842... Civil Practice Act, § 357. 843... Civil Practice Act, § 358; Legislative Law, § 62-a. 844... Civil Practice Act, § 359. 845... Civil Practice Act, § 360; Justice Ct. Act, § 243. 846... Civil Practice Act, § 361; Justice Ct. Act, § 244. 847... Civil Practice Act, § 362; Justice Ct. Act, § 245. 848... Civil Practice Act, § 363; Justice Ct. Act, § 246. 849... Civil Practice Act, § 364; Justice Ct. Act, § 247. 850... Civil Practice Act, § 365; Justice Ct. Act, § 248. 851... Penal Law, § 1622. 852... Civil Practice Act, § 404. 853... Civil Practice Act, § 405. 854 .. . Civil Practice Act. § 406, subd. 1 ; Legis- lative Law, § 62-a. 855... Civil Practice Act, S 406, subd. 2. 856... Civil Practice Act, § 406, subd. 3. 857 .. . Civil Practice Act, § 406, subd. 4. 858 .. . Civil Practice Act, § 406, subd. 5. 859 .. . Civil Practice Act. § 407. 860... Civil Rigbts Law, § 25. 861... Civil Practice Act, I 408, subd. 1. 862... Civil Practice Act, § 408, subds. 2, 3. 863... Civil Rights Law, §§ 25, 26. 864... Civil Eights Law, § 26. 865... Civil Practice Act, § 409. 866... Civil Practice Act, I 410. 867... Civil Practice Act, i 411; Justice Ct. Act, § 201. 867-a. Civil Practice Act, § 412. 868... Civil Practice Act, § 413. 869... Civil Practice Act, § 414. r.C.P. Section Now Located In 870, part... Civil Practice Act, §§ 288, 293. 871, part... Civil Practice Act. §§ 288, 295. 872. . .Civil Practice Act, § 288. 872, part... Civil Practice Act, § 289. 872, subd. 7, part... Civil Practice Act, IS 289, 296. 872. . .Rule 122. Rule 123. 873, part... Civil Practice Act, § 306. 874, part... Civil Practice Act, § 299. 875. . .See Civil Practice Act, § 200. 876.. .Rule 127. 877... Civil Practice Act, § 297. 878... Repealed 1877, c. 416. 879... Civil Practice Act, § 298. 880... See Civil Practice Act, § 302. 880. ..Rule 129. 881 .. . Civil Practice Act, § 303. 882, part... Civil Practice Act. I 304. 883 .. . Civil Practice Act, § 305. 884. . .Omitted. 885... Civil Practice Act, § 307. 885... Rule 120. 886, . .Civil Practice Act, § .300. 887, part... Civil Practice Act, S 288. 888, subds. 1-5 .. . Civil Practice Act, S 288. 888, subd. 6... See Civil Practice Act, 5 30S. 889.. .Omitted. 890... Rule 125, last sentence. 891. . .Omitted. 892... Rule 126. 893... Omitted. 894.. .Omitted. 895. . .Omitted. 896. . .Omitted. 897. . .Omitted. 898. . .Omitted. 899. . .Omitted. 900. . .Justice Ct. Act, § 206. 900 pt. . .Rule 129. 900.. .Rule 128. 901... Justice Ct. Act, I 207. 901... Rule 128. 901... Rule 130. 902... Justice Ct. Act, 5 208. 903 ... Justice Ct. Act, § 209. 904. . .Rule 131, subd. 1. tio.-, . . .Rule 131, subd. 2. 906... Rule 131, subd. 3. 907... Rule 131, subd. 4. 908... Civil Practice Act, § 298. 909. . .Eule 132, last two sentences. 910, part. . .Civil Practice Act, I 304. 910. . .Justice Ct. Act, § 212. 910... Rule 133. 911, part... Civil Practice Act, § 305. 911... Justice Ct. Act, § 213. 912. ..Omitted. 913... Civil Practice Act, S 309. 914... Civil Practice Act, § 310. 915 .. . Civil Practice Act, § 311. 916. ..Repealed 1899, c. 502. 917.. .Repealed 1899, c. 502. 918. . .Repealed 1899, c. 502. 919 .. . Civil Practice Act, § 312. 920. . .Repealed 1809, c. 502. 921... Civil Practice Act, i 366. 922... Civil Practice Act, § 367. 923... Civil Practice Act, § 368, subd. 1. 824 . . . Civil Practice Act, § 368, subd. 2. 925... Civil Practice Act, S 369. 926 .. . Civil Practice Act, 8 370. 927 .. . Civil Practice Act, I 371. 928... Civil Practice Act, § 372. 929... Civil Practice Act, § 373. 930... Civil Practice Act, § 374, subds. 1, 4. 931... Civil Practice Act, § 374, subds. 2, 3. 931-a. Civil Practice Act, § 377. 931-b. Civil Practice Act, § 378. 931-c. Civil Practice Act, § 390. 932... Civil Practice Act, § 380. 933... Civil Practice Act, § 382. 934 .. . Civil Practice Act, § 383. ti 93.3-1066 CLEVENGEB'S TABLES OF PRACTICE ACTS 548 C.C.P. Section Now Located In 935... Civil Practice Act, § 384, subds. 1, 2 936... Civil Practice Act, § 384, subds. 3. 4 937 .. . Civil Practice Act, § 386. 938 ... Justice Ct. Act, § 471. 939... Civil Practice Act, § 387, subd. 1. 940... Civil Practice Act, § 387, subds. 2, 3. 941... Civil Practice Act, § 388. 941-a. . .Civil Practice Act, § 381. 942... Civil Practice Act, § 391. 943... Civil Practice Act, § 399. 944, part... Civil Practice Act, §§ 400, 401. 945... Civil Practice Act, § 402. 946... Civil Practice Act, § 392. 947... Civil Practice Act, § 393. 948... Civil Practice Act, § 394, subd. 1. 949. . .Civil Practice Act, § 394, subd. 2. 950... Civil Practice Act, § 394, subd. 3. 950. . .Rule 131, subd. 2. 951... Civil Practice Act, § 394, subd. 4. 952... Civil Practice Act, § 395. 953... Civil Practice Act, § 396. 954... Civil Practice Act, § 397. 955... Civil Practice Act, § 389. 956... Civil Practice Act, § 398. 957... Civil Practice Act, § 320. 958... Civil Practice Act, § 330, first two sen- 959. . .Civil Practice Act, § 330, last setence. 960... Civil Practice Act, § 335. 961... County Law, § 161. Judiciary Law, § 255. Penal Law, § 1875. Public Officers Law, § 66. S61 . . . Surrogate Ct. Act, §§ 20, 22. 961-a. . .Civil Practice Act, § 334. 961-b. . .Civil Practice Act, § 331. ©61-e. . .Civil Practice Act, § 336. 961-d. . .Civil Practice Act, § 332. 961-e. . .Civil Practice Act, § 376. 961-f. . .Civil Practice Act, § 375. 962... Civil Practice Act, § 844. 963... Civil Practice Act, § 421. 964, part. . .Civil Practice Act, § 422. 965... Civil Practice Act, § 423. 966... Civil Practice Act, § 443, subd. 1. 967, part. . .Civil Practice Act, § 443, subd. 2. 868... Civil Practice Act, § 425. 969... Civil Practice Act, § 427. 970... Civil Practice Act, § 429. 971 . . . Civil Practice Act, § 430, first sentence. 972... Civil Practice Act, § 430, last sentence. 973. . .Civil Practice Act, § 443, subd. 3. 974... Civil Practice Act, § 424. 975... Civil Practice Act, § 428, last sentence. 976, part... Civil Practice Act, § 284, first sen- tei'ce ; § 432. ©76. . .Rule 158. 977. . .Judiciary Law, § 83. 877... Rule 150. Rule 151. 978... Omitted. 979.. .Omitted. 980, part... Civil Practice Act, § 438. 981 . . . Rule 160, first paragraph. 882, part... Civil Practice Act, § 183. 982-a...Real Propertv Law, § 536. 983... Civil Practice Act, § 184. 984... Civil Practice Act, § 182. 985... Civil Practice Act, § 186. 986... Rule 146. 987... Civil Practice Act, § 187. 988... Civil Practice Act, § 188. 889... Rule 147. 990... Civil Practice Act, § 185. 991.. .Omitted. 992. . .Civil Practice Act, § 444, subds. 1-3. 993, part... Civil Practice Act, § 444, subd. 4. 994... Civil Practice Act, § 445. 995... Civil Practice Act, § 446. 996... Civil Practice Act, § 583. 997, part... Civil Practice Act, §§ 575, 576. 997... Rule 221, first paragraph, first part. 998, part... Civil Practice Act, 8 575. ©98 . . . Rule 221, first paragraph, second part. 999, part... Civil Practice Act, 8§ 549, 575. C.C.P. Section Now Located In 1000, part... Civil Practice Act, § 550. 1000... Rule 220. 1001, part. ..Civil Practice Act, §§ 447, 551. 1002... Civil Practice Act, § 552. 1003, part... Civil Practice Act, § 553. 1003 . . . Rule 221, last paragraph. 1004... Civil Practice Act, § 556. 1005, part... Civil Practice Act, § 554. 1005... Rule 203, except last clause. 1006. ..Civil Practice Act, § 555. 1007. . .Judiciary Law, § 305. 1007.. .Rule 223. 1008... Civil Practice Act, § 428. 1009... Civil Practice Act, § 426; Surrogate Ct. Act, § 67. 1010, part... Civil Practice Act, §§ 442, 1485. 1011... Civil Practice Act, § 464. 1012... Civil Practice, § 465. 1013... Civil Practice Act, | 466; New York City Ct. Act, § 31. 1014... Civil Practice Act, § 431. 1015... Civil Practice Act, § 467. 1016... Civil Practice Act, § 468. 1016... Rule 171. 1017... Civil Practice Act, § 469. 1018... Civil Practice Act, § 469. 1019... Civil Practice Act, § 470, subd. 3. 1020... Civil Practice Act, § 435. 1021... Civil Practice Act, § 441. 1021, part. . .Civil Practice Act, § 470, subd. 1. 1022... Civil Practice Act, § 440. 1022, part. . .Civil Practice Act, § 470, subd. 1. 1023... Civil Practice Act, § 439. 1023, part... Civil Practice Act, § 471. 1024, part. . .Condemnation Law, § 13. 1024... Rule 172, first three sentences. 1025 , . . Civil Practice Act, § 468, first two sen- tences. 1026... Civil Practice Act, § 468, last two sen- tences. 1027. . ..Judiciary Law, § 502. 1028. . .Judiciary Law, I 502. 1029. . .Judiciary Law, § 503. 1030 ... Judiciary Law, § 546. 1031. . .Judiciary Law, §§ 547, 548. 1032. . .Judiciary Law, § 550. 1033. . ..Judiciary Law, § 544. 1034. . .Judiciary Law, §§ 590, 600, 680, 687. 1035. . .Judiciary Law, § 500. 1036. . .Judiciary Law, § 501. 1037. . .Judiciary Law, § 505. 1038.. ..Justice Ct. Act, § 222. 1039 ... Judiciary Law, §§ 509-512. 1040. . ..Judiciary Law, § 506. 1041. . .Judiciary Law, § 507. Criminal Code, § 229. 1042. . .Judiciary Law, §§ 513, 52S. 543. 545. 1048. . .Judiciary Law, § 514. 1044. . .Judiciary Law, §§ 26, 515. 1045. . .Judiciary Law, § 516. 1046. . .Judiciary Law, § 517. 1047. ..Judiciary Law, §§ 518, 520. 1048. . .Judiciary Law, § 536. 1049. . .Judiciary Law, § 504. 1050. . .Judiciary Law, §§ 521, 522. 1051. . .Judiciary Law, § 523. 1052. . .Judiciary Law, § 524. 1053. . .Judiciary Law, § 525. 1054. ..JudiciaiT Law, § 526. 1055 . . . .Judiciary Law, § 537. 1056. . .Judiciary Law, § 527. 10.57. . .Judiciary Law. §§ 529. 530. 1058. . .Judiciary Law, §§ 513, 528, 543, 545, 565. 1059. ..Judiciary Law, §§ 531, 532. 538. 1060. ..Judiciary Law, §§ 539, 542. 1061. ..Judiciary Law, § 535. 1062. ..Judiciary Law, 8§ 590, 680. 1063... Civil Practice Act, § 449, first two sen- tences. 1064.. .Judiciary Law, § 749-a. 1065. . .Judiciary Law, 749-b. 1066. . .Judiciary Law, §§ 538-a, 749-c 549 CONSECUTIVE SECTIONS TABLE §§1067-1216 C.CP. Section Now Located In 1067... Civil Practice Act, § 449, last three sen- tences. 1068 ... Judiciary I^aw, § 749-cl. 1069. . .Judiciary Law, § 749-e. 1070. . .Judiciary Law, § 749-f. 1071. . .Judiciary Law, § 749-g. 1072. . .Judiciary Law, § 551. 1073. . .Judiciary Law, §§ 552, 553. 1074. . .Judiciary Law, § 554. 1075. . .Judiciary Law, §§ 555, 556. 1076 ... Judiciary Law, § 557. 1077 ... Judiciary Law, § 558. 1078...JudiciaiT Law, §§ 590, 680. 1079. . .Judiciary Law, § 598. 1080. ..Judiciary Law, § 599. 1081. . .Judiciary Law, § 635. 1082 ... Judiciary Law, § 636. 1083. . .Judiciary Law, § 637. 1084 . . . Judiciary Law, §§ 549, 641-644. 1085... Judiciary Law, §§ 630, 647. 1086. . .Judiciary Law, §§ 608, 616, 631. 1087... Judiciary Law, §§ 632, 633. 1088. . .Judiciary Law, § 645. 1089. . .Judiciary Law, § 634. 1090. . .Judiciary Law, §§ 591, 592, 505, 601, 638, 640. 1091... Judiciary Law, §§ 593, 594. 1092. . .Judiciary Law, § 602. 1093. . .Judiciary Law, § 800. 1094 ... Judiciary Law, §§ 597, 639. 1095.. .Judiciary Law, § 603. 1096. . .Judiciary Law, § 604. 1097. . .Judiciary Law, §§ 606, 607. 1098. ..Judiciary Law, § 610. 1099 . . . Judiciary Law, § 612. 1100. . .Judiciary Law, § 611. 1101. . .Judiciary Law, § 613. 1102. . .Judiciary Law, § 614. 1103. . .Judiciary Law, §§ 615, 617. 1104. ..Judiciary Law, § 618. 1105. . .Judiciary Law, § 623. 1106. . .Judiciary Law, §§ 619, 624, 625. 1107. ..Judiciary Law, §§ 628, 629. 1108... Judiciary Law, §§ 621, 622, 626, 627. 1109. . .Judiciary Law, §§ 646, 649. 1110. . .Judiciary Law, § 648. 1111. ..Judiciary Law, § 800. 1112... Judiciary Law, §§ 605, 609, 020. 1113. ..Judiciary Law, §§ 650, 659. 1114.. .Repealed 1889, c. 343. 1115. . .Repealed 1889, c. 343. 1116. ..Repealed 1889, c. 343. 1117... Judiciary Law, §§ 660, 663. 1118.. .Judiciary Law, § 664. 1119 ... Judiciary Law, §§ 665-667. 1120... Penal Law, § 1232. 1121. ..Judiciary Law, § 596. 1122... Penal Law, § 1235. 1123... Penal Law, § 12.55. 1124... Penal Law, § 1235. 1125... Penal Law, § 1233. 1126.. .Judiciary Law, § 686. 1127... Judiciary Law, § 720. 1128... Judiciary Law, §§ 721, 722. 1129... Judiciary Law, §§ 714, 715. 1130. . .Judiciary Law, § 716. 1131.. .Judiciary Law, §§ 718, 719. 1132... Judiciary Law, §§ 681, 688, 690, 723. 11 33... Judiciary Law, §§ 682, 683. 1134... Judiciary Law, § 800. 1135... Judiciary Law, §§ 691, 692. 1136... Judiciary Law, §§ 693, 694. 1137... Judiciary Law, § 695. 1138... Judiciary Law, §§ 696, 698. 1139... Judiciary Law, § 697. 1140... Judiciary Law, §1 699, 700. 1141. . .Judiciary Law, § 701. 1142... Judiciary Law, § 702. 1143. ..Judiciary Law, § 703. 1144... Judiciary Law, § 704. 1145 ... Judiciary Law, § 705. 1146... Judiciary Law, §§ 706, 709. 1147.. .Judiciary Law, §§ 710, 717, 725. C.CP. Section Now Located In 1148.. .Judiciary Law, § 711. 1149. . .Judiciary Law, §§ 707, 712. 1150. ..Judiciary Law, §§ 708, 713. 1151. . .Judiciary Law, § 26. 1152.. .Judiciary Law, § 724. 1153... Judiciary Law, § 726. 1154. . .Judiciary Law, §§ 727, 729. 1155... Judiciary Law, §§ 730, 731. 1156. . .Judiciary Law, §§ 732, 735. 1157.. .Judiciary Law, § 736. 1158... Penal Law, § 1234. 1159... Penal Law, § 1234. 1160... Penal Law, § 1256. 1161... Penal Law, § 1232. 1162.. .Judiciary Law, §8 684, 685. 1163. . .Judiciary Law, § 741. 1164. . .Judiciary Law, § 742. 1165. . .Judiciary Law, § 742. 1166, part. . .Civil Practice Act, §§ 448, 455 ; Jus- tice Ct. Act, § 239. 1167. . .Judiciary Law, § 743. lies... Judiciary Law, § 743. 1169. ... Judiciary Law, 743. 1170. . .Judiciary Law, § 744. 1171. . .Judiciary Law, § 745; Surrogate Ct. Act, § 70. 1172. . .Judiciary Law, § 746; Surrogate Ct. Act, § 70. 1173.. .Judiciary Law, § 747. 1174, part... Civil Practice Act, § 456. 1174 . . . Judiciary Law, § 748. 1175. . .Judiciary Law, § 749. 1176. . .Civil Practice Act, § 451 ; Justice Ct. Act, § 235. 1177... Civil Practice Act, § 453, subd. 1. 1178 . . . Civil Practice Act, § 453, subd. 2. 1179. . .Civil Practice Act, § 454 ; Justice Ct. Act, § 236. IISO, part. . .Civil Practice Act, §§ 450, 452 ; Jus- tice Ct. Act, §1 237, 238. 1181... Civil Practice Act, § 463. 1182, part... Civil Practice Act, §§ 457, 462. 1183... Civil Practice Act, § 460. 1184... Civil Practice Act, § 435. 1185... Civil Practice Act, § 461. 1186... Civil Practice Act, § 458. 1187, part... Civil Practice Act, §§ 459, 585. 1188... Civil Practice Act, § 459. 1189, part... Civil Practice Act, § 495, first sen- tence. 1189... Rule 165. 1190... Civil Rights Law, § 12. 1190... Rule 164. 1191. . .Judiciary Law, § 740. 1192. . .Civil Rights Law, § 14. 1193... Penal Law, § 375. 1194. . .Penal Law, § 377. 1195. . .Judiciary Law, § 559. 1196. . .Judiciary Law, § 560. 1197. . .Judiciary Law, § 561. 1198. . .Judiciary Law, § 562. 1199. . .Judiciary Law, §§ 563, 564. 1200... Civil Practice Act, § 472. 1201 ... Repealed 1877, c. 416. 1202... Rule 201, second sentence. 1203... Omitted. 1204... Civil Practice Act, § 474, subd. 1. 1205... Civil Practice Act.l 474, subd. 2. 1206. . .Domestic Relations Law, § 51. 1207 . . . Civil Practice Act, § 479. 1208. . .Civil Practice Act, § 479. 1209... Civil Practice Act, § 482, first sentence. 1210, part... Civil Practice Act, § 478, second and third sentences. 1210... Rule 186. 1211. . .Civil Practice Act, § 481 ; Justice Ct. Act, § 277. 1212, part... Civil Practice Act, § 486. 1213... Civil Practice Act, § 487. 1214, part. . .Civil Practice Act, §§ 489, 491. 1214... Rule 189. 1215... Civil Practice Act, § 490. 1216, part... Civil Practice Act, § 493, subd. 1 1216... Rule 192, subds. 1, 3, 4, 5. 1217-1S46 GLEVENaJER'S TABLES OF PRACTICE ACTS 550 C.C.P. Section Now Located In 1217, part... Civil PFactlce Act, I 493, subd. 2. 1217... Rule 192, subd. 2. 1218... Civil Practice Act, §492. 1219... Rule 190, subd. 1. 1219... Rule 190, subd. 2. 1220... Civil Practice Act, § 06. 1221... Rule 195. 1222... Rule 196. 1223, part. . .Civil Practice Act, § 469. 1223... Rule 197. 1224 . . . Civil Practice Act, § 496. 1225... Rule 194. 1226. . .Rule 199. 1227 . . . Civil Practice Act, ' % 499. 1228, part. . .Civil Practice Act, § 470, subd. 2. 1228... Rule 198. 1229... Civil Practice Act, § 1174. 1230... Rule 187. 1231... Rule 188. 1232. . .Civil Practice Act, § S56. 1232... Rule 222. 1233. . .Civil Practice Act, § 495, second sentence. 1234. . .Civil Practice Act, § 495, last sentence. 1235... Civil Practice Act, § 480. 1236 . . . Rule 201, first and last sentence. 1237... Rule 202, subd. 2. 1237. . .Rule 202, subds. 3 and 4. 1237 . . . Rule 202, subd. 6. 1238.. .Rule 202, aubd. 1. 1239, part... Civil Practice Act, I 503. 1239... Rule 202, subd. 8. 1240... Civil Practice Act, § 504. 1241... Civil Practice Aet, § 505. 1242... Civil Practice Act, § 506. 1243... Civil Practice Act, I 507. 1244... Civil Practice Act, § 508. 1245, part. . .County Law, §§ 171, 172 ; New York City Ct. Act, § 9. 1245-a, part.. .County Law, § 173. 1246. . .Civil Practice Act, § 501 ; New York City Ct. Act, § 10. 1247... Civil Practice Act, § 502. 1247, part... New York City Ct. Act, I 10, last paragraph. 1248. . .Judiciary Law, § 255-a. 1249. . .Judiciary Law, § 255-b. 1250... Civil Practice Act, § 509. 1251, part... Civil Practice Act, §§ 510, 511. 12S2... Civil Practice Act, § 512. 1253... Civil Practice Act, § 513. 1254... Civil Practice Act, § 514. 1255... Civil Practice Act, § 515. 1256... Civil Practice Act, § 516. 1257... Civil Practice Act, § 517. 1258... Civil Practice Act, § '518. 1259... Civil Practice Act, § 519. 1260... Civil Practice Act, § 530. 1261... Civil Practice Act, § 532. 1262... Civil Practice Act, § 538. 1263... Civil Practice Act, § 534. 1264... Rule 204, except last clause. 1265... Civil Practice Act, § 535. 1266... Civil Practice Act, I 536. 1267... Civil Practice Act, § 537. 1268. . .Debtor and Creditor Law, § 150, 1269... Civil Practice Act, § 538. 1270... Civil Practice Act, S 530. 1271... Repealed 1879, c. 542. 1272, part... Civil Practice Act, §§ 500-516, 530, 535-538. 1273... Civil Practice Act, § 540. 1273 ... Domestic Relations Law, § 51. 1274... Civil Practice Act. § 541. 1275, part... Civil Practice Act, § 543; New York City Ct. Act, § 18. 1276... Civil Practice Act, § 544. 1277... Civil Practice Act, § 5-15. 1278... Civil Practice Act, § 542. 1279... Civil Practice Act, § 546. 1280... Civil Practice Act, § 547. 1281, part... Civil Practice Act, § 548. 1282... Civil Practice Act, § 521. 1283... Civil Practice Act, § 522. 1284... Civil Practice Act, § 52.'!. 1285... Civil Practice Act, § 524. C.C.P. Section Now Located In 1286... Civil Practice Act, g 526, subd. 4. 1286, part... Civil Practice Act, § 525. 1287, part... Civil Practice Act, § 526, subds. 1, 2. 1288... Civil Practice Act, § 626, subd. 3. 1289... Civil Practice Act, i 527. 1290... Civil Practice Act, § 528. 1291... Civil Practice Act, I 528. 1292... Civil Practice Act, S 529. 1293. ..Omitted. 1294... Civil Practice Act, § 557. 1295... Civil Practice Act, § 561; Surrogate Ct. Act, § 290. 1296... Civil Practice Act, S 557; Surrogate Ct. Act, § 291. 1297, part... Civil Practice Act, §§ 557, 572. 1297. . .Surrogate Ct. Act, § 292. 1298... Civil Practice Act, § 578; Surrogate Ct. Act, § 307. 1299 . . . Civil Practice Act, § 579 ; Surrogate Ct. Act, § 308. 1300 . . . Civil Practice Act, § 562. 1301... Civil Practice Act, S 562; Suirogate Ct. Act, § 295. 1302... Civil Practice Act, § 563; Surrogate Ct. Act, i 296. 1303. . .ClvilPractlce Act, § 107; Surrogate Ct. Act, § 297. 1304. . .Civil Practice Act, § 559. 1305 . . . Civil Practice Act, § 569 ; Surrogate Ct. Act, § 302. 1306... Civil Practice Act, § 564; Surrogate Ct. Act, § 303. 1307 . . . Civil Practice Act, § 567 ; Surrogate Ct. Act, § 304. 1308... Civil Practice Act, § 149; Surrogate Ct. Act, § 305. 1309 . . . Civil Practice Act, § 161 ; Surrogate Ct. Act, I 306. 1310. part. . .Civil Practice Act, §§ 573, 574, 591. 1311. . .Civil Practice Act, § 689. 1312. part... Civil Practice Act, § 568. 1313. . .Civil Practice Act, § 570. 1314. . .Civil Practice Act, § 571. 1315. . .Civil Practice Act, § 577. 1316. . .Civil Practice Act, § 580. 1317. part. . .Civil Practice Act, § 584. 1318. . .Civil Practice Act, § 560. 1319... Civil Practice Act, § 497. 1320. . .Civil Practice Act, § 633. 1321 . . . Civil Practice Act, § 498, subd. 1. 1322... Civil Practice Act, § 498, subd. 2. 1323. part... Civil Practice Act, §§ 586, 587. 1323-a. Civil Practice Act, § 582. 1324. . .Omitted. 1325. . .Civil Practice Act, § 592. 1326. . .Civil Practice Act, § 593. 1327. part... Civil Practice Act, §§ 149, 594. 1328. . .Civil Practice Act, § 595. 1329 . . . Civil Practice Act, § 596. 1330. . .Civil Practice Act, § 597. 1331 . . . Civil Practice Act, § 598. 1332... Civil Practice Act, § 599. 1333 . . . Civil Practice Act, § 600. 1334. . .Civil Practice Act, § 565. 1335... Civil Practice Act, §§ 151, 566; Justice Ct. Act, § 435. 1336. . .Civil Practice Act, § 590. 1337. part.. .Civil Practice Act, l§ 589, 604. 1338. . .Civil Practice Act, § 602. 1339. . .Civil Practice Act, § 601. I,!a9-;i. . .Civil Practice Act, § 007. 1:M0. part... Civil Practice Act, §§ 622-624. i:'.41. . .Civil Practice Act, § 625. 1342, part. . .Civil Practice Act, § 622. 1343, . .Civil Practice Act, 8 626. 1344, subds. 1, 2... Civil Practice Act, 5 627. 1344, subd. 3... Civil Practice Act, S 628. 1344, subd. 4 , . , Civil Practice Act, § 630. 1345. . .Civil Practice Act, § 621. 1345, part... Civil Practice Act, S 629. 1346. . .Civil Practice Act, § 608 ; New York City Ct. Act, § 63. 551 CONSECUTIVE SECTIONy^ TABLE §§ 1347-1435 § 609 ; New York C.C.P. Section Now Located In 1347... Civil Practice Act, City Ct. Act, § 70. 1348, part. ..Civil Practice Act, §§ 66, 132, 610, 134S. . .New Yorlj City Ct. Act, § 71. 613. 1349...Civii Practice Act, § 611; New York City Ct. Act, § 69. 1350. . .Civil Practice Act, I 603. 1350, part. . .Civil Practice Act, § 619. 1351, part. . .Civil Practice Act. §§ 612, 614. 1352. . .Civil Practice Act, § 615. 1353. . .Civil Practice Act, § 616. 1354. . .Kule 20-2, subd. 5. 1354. . .Rule 202, subd. 7. 1355. . .Civil Practice Act, I 621. 1355, part. . .CiTil Practice Act, § 617. 1356 . . . Civil Practice Act, § 631. 1357... Civil Practice Act, § 631. 1358. . .Civil Practice Act, § 580. 1359. . .Civil Practice Act, S 632. 1360. . .Civil Practice Act, § 634. 1361. . .Civil Practice Act, § 634. 1361, part. . .Civil Practice Act, § 631. 1362 . . . Civil Practice Act, § 636. 1363... Civil Practice Act, § 637; Justice Ct. Act, § 284. 1364. part... Civil Practice Act, §§ 635, 638. 1365 . . . Civil Practice Act, § 648. 1366. part. . .Civil Practice Act, §§ 640, 685. 1367... Civil Practice Act, § 641; Justice Ct. Act, § 280. 1368. . .Civil Practice Act, § 642. 1369 . . . Civil Practice Act, § 643. 1370... Civil Practice Act, § 645. 1371 . . . Civil Practice Act, § 646. 1372 . . . Civil Practice Act, § 647. 1373... Civil Practice Act, § 644; Justice Ct. Act, §§ 118, 283. 1374 . . . Civil Practice Act, § 649. 1375. . .Civil Practice Act, § 650. 1376 . . . Civil Practice Act, § 651. 1377.. .Civil Practice Act, § 652. 1378 . . . Civil Practice Act, I 653. 1379 . . . Civil Practice Act, § 654. 1380. . .Civil Practice Act, § 655. 1381. . .Civil Practice Act, I 656. 1382. . .Civil Practice Act, § 657. 1383. . .Civil Practice Act, § 658. 1384, part... Civil Practice Act, |§ 660, 695. 1384... Justice Ct. Act, § 289. 1385... Civil Practice Act, § 661; Justice Ct. Act, § 290. 1386... Civil Practice Act, S 662; Justice Ct. Act, § 291. 1387... Civil Practice Act, § 663; Justice Ct. Act, I 292. 1388 . . . Civil Practice Act, 8 639. 1389. . .Civil Practice Act, § 664. 1390... Civil Practice Act, § 665, subds. 1-6. 1391, part... Civil Practice Act, § 665, subd. 7; I 684; Justice Ct. Act, i 300. 1392 . . . Civil Practice Act, § 666. 1393, part. . .Civil Practice Act, § 667. 1394. . .Civil Practice Act, 8 668. 1395. . .Civil Practice Act, § 670. 1396... Civil Practice Act, § 670, last sentence. 1397. . .Civil Practice Act, I 671. 1398... Civil Practice Act, S 672. 1399 . . . Civil Practice Act, § 673. 1400. . .Civil Practice Act, i 674. 1401. . .Civil Practice Act, § 675. 1402. . .Civil Practice Act. S 676. 1403 . . . Civil Practice Act, § 677. 1404. . .Civil Practice Act, 8 678. 1404-a . Personal Prop. Law, 8 250. 1404-a, part... Civil Practice Act, 8 669. 1405 . . . Civil Practice Act, § 679 ; Justice Ct. Act, § 293. 1406. . .Civil Practice Act, 8 680. 1407 . . . Civil Practice Act, § 681. 1408... Civil Practice Act, § 682; Justice Ct. Act, § 286. C.C.P. Section Now Located In 1409... Civil Practice Act, Act, 8 294. 1410... Civil Practice Act, Act, § 295. 1411... Civil Practice Act, Act, 8 296. 1412... Civil Practice Act, Act, § 297. 1413... Civil Practice Act, § 1414. . .Civil Practice Act, § 1415. . .Civil Practice Act, § 1416. . .Civil Practice Act, S 1417. . .Civil Practice Act, § 1418 . . . Civil Practice Act, 8 1419 . . . Civil Practice Act, 8 1420. . .Civil Practice Act, 8 1421 . . . Civil Practice Act, 8 1422. . .Civil Practice Act, § 1423 . . . Civil Practice Act, § 1424. . .Civil Practice Act, 8 1425. . .Civil Practice Act, 8 1426. . .Civil Practice Act, § 1427. . .Civil Practice Act, 8 1428... Civil Practice Act, Act, 8 298. 1429 . . . Civil Practice Act, § 1430 . . . Civil Practice Act, 8 1431. . .Civil Practice Act, 8 1432 . . . Civil Practice Act, § 1433 . . . Civil Practice Act, § 1434. . .Civil Practice Act, 8 1435, part . . . Civil Practice 1436. . .Civil Practice Act, § 1437. . .Civil Practice Act, 8 1438. . .Civil Practice Act, § 1439. . .Civil Practice Act, 8 1440 . . . Civil Practice Act, § 1441. . .Civil Practice Act, § 1442. . .Civil Practice Act, § 1443 . . . Civil Practice Act, § 1444 . . . Civil Practice Act, 8 1445. . .Civil Practice Act, § 1446 . . . Civil Practice Act, 8 1447. . .Civil Priictice Act, § 1448. . .Civil Practice Act, § 1449... Civil Practice Act, § 1450 . . . Civil Practice Act, § 1451. . .Civil Practice Act, 8 1452 . . . Civil Practice Act, § 1453. . .Civil Practice Act, I 1454. . .Civil Practice Act, 8 1455. . .Civil Practice Act, 8 1456. . .Civil Practice Act, § 1457 . . . Civil Practice Act, § 1458. . .Civil Practice Act, § 1459. . .Civil Practice Act, § 1460 . . . Civil Practice Act, § 1461. . .Civil Practice Act, 8 1462 . . . Civil Practice Act, 8 1463. . .Civil Practice Act, 8 1464. . .Civil Practice Act, 8 1465 . . . Civil Practice Act, § 1466. . .Civil Practice Act, 6 1407 . . . Civil Practice Act, § 1468. . .Civil Practice Act, 8 1469... Civil Practice Act, ! 1470... Civil Practice Act, ! sentences. 1471. . .Civil Practice Act, 8 1472 . . . Civil Practice Act, 8 1473. . .Civil Practice Act, § 1474. . .Civil Practice Act, 8 1475. part... Civil Practice 1476. . .Civil Practice Act, 8 1477. . .Civil Practice Act, 8 1478. . .Civil Practice Act, 8 1479... Civil Practice Act, i 1480 . . . Civil Practice Act, 8 1481. . .Civil Practice Act, 8 1482. . .Civil Practice Act, 8 1483. . .Civil Practice Act, 8 1484. . .Civil Practice Act, 8 1485 . . . Civil Practice Act, § § 683; Justice Ct. 8 686 ; Justice Ct. 8 687 ; Justice Ct, § 688; Justice Ct. 690. 691 692. 69.-',. 694. 696. 697. 698. 699. 700. 701. 702. 703. 704. 705. § 706 ; Justice Ct. 707. 708. 709. 710. 711. 712. Act, 88 713, 715. 714. 715. 716. 717. 718. 719. 720. 721. 722. 723. 724. 725. 726. 727. 728. 729. 730. 731. 732. 733. 734. 735, 736. 737. 738. 739. 740. 741. 742. 743. 744. 745. 746. S 747, first gentenctu S 747, last two 748. 749. 750. 751. Act, 8 752. 753. 754. 755. i 756. 757. 758. 759; 760. 761. 762. §§ 1486-1035 CLBVBNGISR'S TABLES OF PRACTICE ACTS 552 C.CP. Section Now Located In 1486... Civil Practice Act, § 763. 1487. . .Civil Practice Act, § 764. 1488... Civil Practice Act, § 765 Act, § 303. 1489... Civil Practice Act, § 760. 1490... Civil Practice Act, § 767. .Civil Practice Act, § 708. .Civil Practice Act, § 789, subfl. 1 .Civil Practice Act, § 770. .Civil Practice Act, § 771, .Civil Practice Act, § 772. .Civil Practice Act, § 990. .Civil Practice Act, § fino. .Civil Practice Act, § 991. 1499, part. . .Civil Practice Act, § 1500 . . . Civil Practice Act, § 993. 1501... Civil Practice Act, § 994. 1502. . .Civil Practice Act, § 996. ..Civil Practice Act, § 996. ..Civil Practice Act, § 997. ..Civil Practice Act, I 998. . .Civil Practice Act, § 999. . . Civil Practice Act, § 1000. . .Civil Practice Act, f 1001. ..Civil Practice Act, § 1002. .Civil Practice Act, § 1003. Justice Ct. 1491. 1492. 1493. 1494. 1495. 1496. 1497. 1498. 1503. 1504. 1505. 1506. 1507. 1508. 1509. 1510 992. 1511... Eeal Property Law, §§ 470, 501. 1511. . .Rule 240. 1512. . .Rule 55, second paragraph, first sentence. 1513.. .Omitted. 1514. . .Rule 55, second paragraph, last sentence. 1515. . .Civil Practice Act, § 1004. 1516. . .Omitted. 1517. . .Civil Practice Act, § 1005. 1518. . .Civil Practice Act, I 1006. 1519... Rule 241. 1520. . .Civil Practice Act, I 1007. 1521... Omitted. 1522. . .Omitted. 1523. . .Omitted. 1524 . . . Civil Practice Act, § 1009. 1525. . .Repealed 1911, c. 509. 1526. . .Civil Practice Act, § 1010. 1527.. .Repealed 1911, c. 509. 1528.. .Repealed 1911, c. 509. 1529. ..Omitted. 1530. . .Repealed 1911, c. 509. 1531. . .ClvU Practice Act, S 1011. 1532 . . . ClvU Practice Act, S 1012. 1533 . . . Civil Practice Act, S 1014. 1534 . . . ClvU Practice Act, $ 1015. 1535. . .ClvU Practice Act, § 202. 1536. ..Omitted. 1537. . .Civil Practice Act, S 1016. 1538, part. . .Civil Practice Act, §§ 1017-1019, 1044-1048. 1539... Civil Practice Act, I 1074. 1539, part... ClvU Practice Act, § 1021. 1540, part... ClvU Practice Act, §§ 1021, 1035. 1541 . . . Rule 52, last paragraph. 1542... Rule 245, except last sentence. 1543... Civil Practice Act, § 1022. 1544 . . . Civil Practice Act, I 1023. 1545... Rule 246. 1546... ClvU Practice Act, I 1024. 1547... ClvU Practice Act, § 1025. 1548... Civil Practice Act, § 1026. 1549... Civil Practice Act, § 1024. 1550... ClvU Practice Act, § 126. 1551... Civil Practice Act, § 1027. 1552... Civil Practice Act, § 1028. 1553... Civil Practice Act, § 1029. 1554... Civil Practice Act, § 1030. 1555... Civil Practice Act, § 1031. 1556... ClvU Practice Act, § 1032. 1557, part... ClvU Practice Act, § 1033. 1557, subd. 1, part... Civil Practice Act, § 217, last sentence. 1558... Civil Practice Act, 8 1034. 1559... ClvU Practice Act, § 1036. 1560... ClvU Practice Act, § 1037. 1561... Civil Practice Act, § 1038. 1562... ClvU Practice Act, § 1039. 1563... ClvU Practice Act, § 1040. C.CP. Section Now Located In 1564, part. . .Civil Practice Act, I 1041. 1564... Rule 248. .ClvU Practice Act, § 1042. .ClvU Practice Act, § 1043. .ClvU Practice Act, 8 1049. .Civil Practice Act, § 1050. part. . .Civil Practice Act, §§ 1051 .ClvU Practice Act, 8 1053. .Civil Practice Act, § 1054. .Civil Practice Act, I 1055. .Civil Practice Act, 8 1056. .Civil Practice Act, 8 1056. .Civil Practice Act, 8 1056. ClvU Practice Act, 8 1057. .Civil Practice Act, 8 1058. .Civil Practice Act, 8 1059. .ClvU Practice Act, § 1060. .ClvU Practice Act, 8 1061. .ClvU Practice Act, § 1063. part... Civil Practice Act, S 1069. .Civil Practice Act, 8 1070. .Civil Practice Act, 8 1071. .CivU Practice Act, 8 1072. . Omitted. 1587... Civil Practice Act, 8 1073. 1588. . .ClvU Practice Act, 8 192. .Rule 251. .Civil Practice Act, 8 1075. .Real Property Law, § 590. .Real Property Law, § 591. .Real Property Law, 8 592. .Real Property Law, 8 593. 1594, part... Civil Practice Act, I Public Lands Law, 8 19. 1595... Civil Practice Act, 8 1076. 1596 . . . Real Property Law, § 460. 1597... Real Property Law, 8 461. 1598, part... Civil Practice Act, 8 221 1598 . . . Real Property Law, 8 462. . Real Property Law, .Real Property Law, . Real Property Law, .Real Property Law, 1603... Eeal Property Law, 8 467. 1604 . . . Real Property Law, 8 468. .Real Property Law, 8 469. .Real Property Law, 8 470. .Real Property Law, 8 471. .See Civil Practice Act, 8 126. .Real Property Law, 8 472. .Real Property Law, § 473. .Real Property Law, 8 474. .Real Property Law, I 475. .Real Property Law, 8 476. .Real Property Law, 8 477. .Real Property Law, 8 478. .Real Property Law, 8 479. 1617... Real Property Law, 8 480. 1618... Real Property Law, 8 481. .Real Property Law, 8 482. .Real Property Law, 8 483. .Real Property Law, 8 484. .Real Property Law, 8 485. .Real Property Law, 8 487. .Real Property Law, § 488. .Real Property Law, 8 490. .ClvU Practice Act, § 1082. part... Civil Practice Act, Lands Law, § 19. subd. 1, part... Civil Practice Act, first sentence ; § 1083. subd. 2, part... Civil Practice Act, last sentence. 1627, subd. 3. . .Executive Law, 8 69-a. 162S... Civil Practice Act, 8 1078. 1629.. .Rule 255. 1030... Civil Practice Act, § 1077. 1631 . . . CivU Practice Act, 8 lOSO. 1632... Civil Practice Act, 8 1085. 1633, part... Civil Practice Act, 8 1088 gate Ct. Act, 8 250. 1633. . .Rule 261, last sentence. 1634... Civil Practice Act, 8 1081. 1635... ClvU Practice Act, 8 1084. 1565. . 1566.. 1567.. 1568.. 1569, 1570. . 1571.. 1572.. 1573.. 1574.. 1575.. 1576... 1577. . 1578.. 1579.. 1580.. 1581.. 1582, 1583.. 1584 . . 1585.. 1586.. 1588.. 1589.. 1590.. 1591.. 1592.. 1593. 1599.. 1600.. 1601.. 1602.. 1605.. 1606.. 1607.. 1608.. 1609.. 1610.. 1611.. 1612.. 1613.. 1614.. 1615.. 1616. 1619.. 1620.. 1621.. 1622.. 1623.. 1624.. 1625.. 1626.. 1627, 1052. 1064, 1066- 221, 1020; 8 463. 8 464. 8 465. 8 466. 8 221; 1627 1627 Public 1079, 1079, Surro- 553 CONSECUTIVE SECTIONS TABLE §§ 1636-1761 c.c.p. Section Now Located In 1636... Civil Practice Act, § 1086. 1637... Civil Practice Act, § 1086. 1638... Real Property Law, § 500. 1639... Real Property Law, § 501. 1640... Real Property Law, § 502. 1641... Real Property Law, § 503. 1642... Real Property Law, § 504. 1643... Real Property Law, § 505. 1644... Real Property Law, § 506. 1645... Real Property Law, § 507. 1646 . . . Real Property Law, § 508. 1647 . . . Real Property Law, § 509. 1648... Real Property Law, § 510. 1649... Real Property Law, § 511. 1650... Real Property Law, § 512. 1651 . . . Real Property Law, § 520. 1652... Real Property Law, § 521. 1653... Real Property Law, § 522. 1654... Real Property Law, § 523. 1655... Real Property Law, § 524. 1656... Real Property Law, § 525. 1657 . . . Real Property Law, § 526. 1658... Real Property Law, § 527. 1659... Real Property Law, § 528. 1660... Real Property Law, § 529. 1661... Real Property Law, § 529. 1662... Real Property Law, § 529. 1663... Real Property Law, I 529. 1664... Real Property Law, § 530. 1665... Real Property Law, § 531. 1666... Real Property Law, § 532. 1667... Real Property Law, 8 533. 1668 . . . Real Property Law, § 534. 1669... Real Property Law, § 535. 1670... Civil Practice Act, § 120. 1671, part... Civil Practice Act, § 121. 1671-a. . .Civil Practice Act, § 988. 1672, part... Civil Practice Act, § 122. 1673... Civil Practice Act, § 125. 1674... Civil Practice Act, § 123. 1675... Civil Practice Act, § 985. 1676... Civil Practice Act, §§ 1062, 1087; Real Property Law, § 486. 1677... Civil Practice Act, § 500. 1678... Civil Practice Act, § 986. 1679... Civil Practice Act, § 987. 1680... Civil Practice Act, § 995; Real Property Law, § 491. 1681... Civil Practice Act, § 981. 1682... Civil Practice Act, § 982. 1683... Civil Practice Act, § 983. 1684... Civil Practice Act, § 984. 1685. . .Civil Practice Act, § 1008 ; Real Property Law, § 489. 1686... Omitted. 1687... Civil Practice Act, I 258. 1688... Civil Practice Act, § 989. 1688-a... Civil Practice Act, § 313. 1688-b.. .Civil Practice Act, § 314. 1688-c.. .Civil Practice Act, § 315. 1688-d. . .Civil Practice Act, § 316. 1688-e.Rule 138. 1688-f, part . . . Civil Practice Act, §§ 317, 318. 1688-g. ..Civil Practice Act, § 319. 1688-h. . .Civil Practice Act, § 320. 1688-1... Civil Practice Act, § 321. 1689... Justice Ct. Act, § 93. 1690... Civil Practice Act, § 1089; Justice Ct. Act, § 90. 1691... Civil Practice Act, § 1090; Justice Ct. Act § 91. 1692... Civil Practice Act, § 1091; Justice Ct. Act, § 92. 1693... Civil Practice Act, § 1092. 1694, part... Civil Practice Act, §§ 1094, 1095. 1695... Civil Practice Act, § 1096; Justice Ct. Act ? 95 1696... Civil Practice Act, § 1096. 1697, part... Civil Practice Act, §§ 1096, 1097. 1697... Justice Ct. Act, § 96. 1698... Civil Practice Act, § 1098. 1699... Civil Practice Act, § 1099; Justice Ct. Act, § 97. 1700... Civil Practice Act, § 1100; Justice Ct. ict, § 100. C.C.P. Section Now Located In 1701 . . . Civil Practice Act, § 1100 ; Justice Ct. Act, I 101. 1702... Civil Practice Act, § 1101; Justice Ct Act, I 103. 1703... Civil Practice Act, § 1102. 1704 . . . Civil Practice Act, § 1103 ; Justice Ct Act, § 106. 1705... Civil Practice Act, § 1104. 1706... Civil Practice Act, § 1105. 1707... Civil Practice Act, § 1106. 1708... Civil Practice Act, § 1105. 1709... Civil Practice Act, § 1107; Justice Ct Act, § 107. 1710... Civil Practice Act, § 1108; Justice Ct Act, § 108. 1711... Civil Practice Act, § 1109; Justice Ct Act, § 109. 1712... Civil Practice Act, § 1110; Justice Ct Act, § 98. 1713... Civil Practice Act, § 1111. 1714... Civil Practice Act, § 1112. 1715... Civil Practice Act, § 1113. 1716... Civil Practice Act, § 1114. 1717, part... Civil Practice Act, §1115. 1717... Rule 273. 1718... Civil Practice Act, § 1116. 1719, part... Civil Practice Act, § 1117. 1720.. .Rule 270. 1721. . .Rule 271. 1722, part... Civil Practice Act, § 1118. 1722. . .Justice Ct Act, § 111. 1723... Civil Practice Act, § 1003. 1724... Rule 272. 1725, part. . .Civil Practice Act, § 1119. 1726... Civil Practice Act, S 1120; Justice Ct Act I 115. 1727... Civil Practice Act, § 1121; Justice Ct Act § 116. 1728... Civil Practice Act, § 1122. 1729... Civil Practice Act, § 1123. 1730, part... Civil Practice Act §§ 1124, 1125. 1730. . .Justice Ct. Act, § 117. 1731... Civil Practice Act, § 1126; Justice Ct Act § 118. 1732... Civil Practice Act § 1127; Justice Ct Act, § 119. 1733... Civil Practice Act § 1128; Justice Ct Act § 120. 1734... Civil Practice Act, § 1129; Justice Ct Act, § 121. 1735... Civil Practice Act, § 1130; Justice Ct Act § 122. 1736... Civil Practice Act, § 1131. 1737... Hen Law, § 206. 1738. . .Lien Law, § 207. 1739. ..Lien Law, § 208. 1740.. .Lien Law, § 209. 1741. . .Lien Law, § 210. 1742. . .Repealed 1919, c. 144. 1743... Civil Practice Act, § 1132. 1744... Civil Practice Act, § 1133. 1745... Civil Practice Act § 1134. 1746... Civil Practice Act, I 1136. 1747... Civil Practice Act § 1137. 1748... Civil Practice Act. § 1138. 1749... Civil Practice Act § 1135. 1750... Civil Practice Act, § 1139. 1751... Civil Practice Act. § 1140. 1752... Civil Practice Act, § 1141. 1753, part... Civil Practice Act, §§ 1142, 1143. 1754... Civil Practice Act, § 1146. 1755, part... Civil Practice Act §§ 1144, 1145. 1755. . .Rule 276. 1756... Civil Practice Act § 1147. 1757, part. . .Civil Practice Act, §§ 1148-1150. 1152. 1757, subd. 2. . .Civil Practice Act, § 1151. 1758... Civil Practice Act, § 1153. 1759, subd. 1... Civil Practice Act, § 1154. 1759, subd. 2... Civil Practice Act § 1155. 1759, subds. 3, 4... Civil Practice Act, § 1156. 1760, subd. 1 . . . Civil Practice Act § 1157. 1760, subds. 2, 3... Civil Practice Act § 1158. 1761. . .Civil Practice Act § 1160. 1761. . .Domestic Relations Law, § 8. §•§ 1762-1906 CLEVENaEB'B TABLES OF PRACTICE ACTS 554 C.C.P. Section Now Located In 1762... Civil Practice Act, S 1161. 1763... Civil Practice Act, 5 1162. 1764... Rule 280. 1765. . .Civil Practice Act, § 1163. 1766. . .Civil Practice Act, § 1164. 1767. . .Civil Practice Act, I 1165. 1768. . .Civil Practice Act, § 1166. 1769, part. . .Civil Practice Act, §§ 1189, 1173. 1770. . .Civil Practice Act, § 1168. 1771, part... Civil Practice Act, §§ 1159, 1170. 1772. . .Civil Practice Act, § 1171. 1773. . .Civil Practice Act, 8 1172. 1774, part.. Civil Practice Act, §| 1167, 1175, 1176. 1774. ..Rule 53, snbd. 10. 1775 . . . .Justice Ct. Act, § 170. 177r;. . .Rule 93, subd. 1. 177fl. . ..Tustice Ct. Act, § 253. 1776. . .Rule 93, subd. 2. 1777. . ..Justice Ct. Act, § 171. 1777... Rule 93, subd. 3. 177S. . .Civil Practice Act, § 252. 1778... Rule 86. 1779. , .General Corporation Law, § 45. 1TS1, part. . .General Corporation Law, §§ 46, 47. 17S1 ., .General Corporation Law, § 90. 1782. . .General Corporation Law, I 91. 1783. . .General Corporation Law, I 92. 1784. . .General Corporation Law, § 100. 1783. . .General Corporation Law, § 101. 178R. . .General Corporation Law, | 102. 1787. . .General Corporation Law, § 103. 1788. . .General Corporation Law, §§ 104, 106. 17Sfi. . .General Corporation Law, § 105. 17fiO. . .General Corporation Law, § 109. 1791 . . . General Corporation Law, § 110. 1792. . .General Corporation Law, § 111. 1793. . .General Corporation Law, § 112. 1794. . .General Corporation Law, § 113. 1795. . .General Corporation Law, § 114. 1796. . .General Corporation Law, I 115. 1797. . .General Corporation Law, § 130. 1798. . .General Corporation Law, 8 131. 1799. . .General Corpor.ition Law, § 132. 1800. . .General Corporation Law, 8 133. 1801. . .General Corporation Law, § 134. 1802. . .General Corporation Law, 8 135. 1803. . .General Corporation Law, § 136. 1804. . .General Corporation Law, 8 300. 1805. . .General Corporation Law, 8 301. 1806. . .General Coi-poratlon Law, 8 302. 1807. . .General Corporation Law, 8 303. 1808. . .General Corporation Law, 8 304. 1809. . .General Corporation Law, 8 305. 1809. . .Gpneral Associations Law, 8 10. 1810. . .General Corporation Law, 8 306. 1811. . .General Corporation Law, § 307. 1°12. . .General Associations Law, 8 9. 1812. . .General Corporation Law, 8 308. 1813. . .General Corporation Law, 8 309. 181.^. . .General Associations Law, § 11. 1S14. . .Decedent Estate Law, 8 140. 181.". . .Decedent Estate Law, 8 141. 1816. . .Decedent Estate Law, § 142. 1817. . .Decedent Estate Law, 8 143. 1818. . .Decedent Estate Law, 8 144. ISin. . .Decedent Estate Law, 8 146. 1820. . .Decedent Estate Law, § 147. 1821. . .Decedent Estate Law, 8 148. I.'i22. . .Surrogate Ct. Act, 8 211. 1''1'3. . .Decedent Estate Law, § 149, 1824. . .Decedent Estate Lnw, 8 150. 1825. . .Decedent Estate Law, 8 151. 1S26. . .Decedent Estate Law, 8 152. 1R27. . .Decedent Estate Law, § 153. 1828... Omitted. 1829. . .Decedent Estate Law, § 154. 1830. . .Decedent Estate Law, 8 155. 1831. . .Decedent Estate Law, 8 156. 1832. . .Decedent Estate Law, § 157. 1.'^,';.?. . .Decedent Estate Law, 8 158. 1834. . .Decedent Estate Law, 8 159. 1835. . .Civil Practice Act, 8 1499. C.C.P. Section Now Located In 1836. . .Civil Practice Act, 8 1499. 1836-a. Decedent Estate Law, 8 160. 1837. . .Decedent Estate Law, 8 170 ; Justice Ct Act, 8 4. 1838. . .Decedent Estate Law, 8 171. 1839. . .Decedent Estate Law, § 172. 1840. . .Decedent Estate Law, 8 173. 1841. . .Decedent Estate Law, 8 174. 1842. ..Decedent Estate Law, 8 175. 1843. . .Decedent Estate Law, 8 101. 1844. . .Decedent Estate Law, 8 177. 1845. . .Decedent Estate Law, § 178. 1846. . .Decedent Estate Law, 8 179. 1847. . .Decedent Estate Law, 8 180. 1848. . .Decedent Estate Law, 8 181. 1849. . .Decedent Estate Law, I 182. 1850. . .Decedent Estate Law, § 183. 1851. . .Decedent Estate Law, 8 184. 1852 ... Decedent Estate Law, 8 185. 1853. . .Decedent Estate Law, 8 186. 1854. . .Decedent Estate Law, 8 187. 1855. . .Decedent Estate Law, 8 188. 1856. . .Decedent Estate Law, 8 189. 1857. . .Decedent Estate Law, 8 190. 1858. . .Decedent Estate Law, § 191. 1859 . . . Decedent Estate Law, 8 102. 1860. . .Decedent Estate Law, 8 193. 1861 . . . Decedent Estate Law, 8 200. 1862. . .Decedent Estate Law, 8 201. 1863. . .Decedent Estate Law, 8 202. 1864. . .Decedent Estate Law, 8 203. 1864, part. . .Surrogate Ct. Act, 8 155, eeeead paragraph. 1865. . .Decedent Estate Law, I 204; Sarroc«t» Ct. Act, 8 143. 1866. . .Decedent Estate Law, 8 205. 1867. . .Decedent Estate Law, 8 206. 1868 . . . Decedent Estate Law, 8 28. 1869. . .Decedent Estate Law, 8 210. 1870. . .Decedent Estate Law, 88 134, 194. 1871. . .Civil Practice Act, 8 1189. 1872 . . . Civil Practice Act, 8 1190. 1873. . .Civil Practice Act, 8 1191. 1874. . .Civil Practice Act, 8 1192. 1875. . .Civil Practice Act, 8 1192. 1876. . .Civil Practice Act, 8 1193. 1877. . .Civil Pracitce Act, 8 1194. 1878. . .Civil Practice Act, 8 1195. 1879 . . . Civil Practice Act, 8 1196. 1880. . .Public Officers Law, 8 20, last sentenc*. 1880, part. . .Public Officers Law, 8 22. 1881. . .Public Officers Law, 8 23. 1882. . .Public Officers Law, 8 24. 1883. . .Public Officers Law, § 25. 1884... Public Officers Law, 8 26. 1885. . .Public Officers Law, 8 27. 1886. . .Public Officers Law, 8 20. 1887. . .County Law, 8 153. 1888. . .Public Officers Law, 8 20. 1889. . .Public Officers Law, 88 25, 26. 1890. part. . .Public Officers Law, 8 28. 1891. . .Public Officers Law, 8 22. 1892. . .Public Officers Law, 8 21. 1893 . . . Civil Practice Act, 8 1179 ; Justice Ct Act, 8 6. 1894 . . . Civil Practice Act, 8 1180 ; Justice Ct Act, S 7. 1805. . .Civil Practice Act, 8 222. 1896... Civil Practice Act, § 1181; Justice Ct Act § 9 1897. . .Justice Ct. Act, 8 49. 1898. . .Civil Practice Act, 8 1182; Justice Ct Act, 8 8. 1899. . .Civil Practice Act, 8 9 ; Code Crlm. Proc. § 5-a. 1900... Civil Rights Law, 8 70. 1901. . .Civil Rights Law, 8 71. 1902. . .Decedent Estate Law, 8 130; Justice Ct Act, 8 4. 1903. . .Decedent Estate Law, 8 133. 1004. . .Decedent Estate Law, 8 132. 1905 . . . Decedent Estate Law, 8 134. 1906... Rule 97. 555 OONSECVTITE SECTIONS TABLE §§ 1907-2050 C.C.P. Section Now Located In 1907... Civil Practice Act, § 337, first sentence. 1908... Civil Practice Act, § 337, last sentence. 1909. . .Personal Property Law, § 41. 1910. . .Personal Property Law, § 41. 1911. . .General Business Law, § 375. 1912 ... Personal Property Law, § 41. 1913... Civil Practice Act, § 484. 1914... Civil Practice Act, § 345. 1915... Civil Practice Act, § 160. 1916... Civil Practice Act, § 1501. 1917. . .Civil Practice Act, § 333, subds. 1, 2. 1918 . . . Civil Practice Act, § 333, subd. 3. 1919. part. . .General Associations Law, §§ 12, 13. 1920. . .General Associations Law, § 14. 1921 . . . General Associations Law, I 15. 1922. . .General Associations Law, I 16. 192.?. . General Associations Law, § 17. 1924. . .General Associations Law, § 16. 1925... Omitted. 1926. . .Omitted. 1927.. .Omitted. 1928 . . . Omitted. 1929 . . . Omitted. 1930 . . . Omitted. 1931... Omitted. 1932... Civil Practice Act, § 1197; Justice Ct. Act, § 335. 1933... Civil Practice Act, § 1198; Justice Ct. Act, § 336. 1934... Civil Practice Act, § 1199; Justice Ct. Act, § 338. 1935... Civil Practice Act, § 1199; Justice Ct. Act, § 339. 1936... Civil Practice Act, § 1200; Justice Ct. Act, § 337. 1937... Civil Practice Act, § 1185; Justice Ct. Act, § 340. 1938... Civil Practice Act, § 1186; Justice Ct. Act, § 341. 1939... Civil Practice Act, § 1187; Justice Ct. Act, § 342. 1940... Civil Practice Act, § 1185; Justice Ct. Act, § 343. 1941... Civil Practice Act, § 1188; Justice Ct. Act, § 344. 1942... Debtor and Creditor Law, §§ 230, 231. 1943. . .Civil Practice Act, § 531. 1944. . .Debtor and Creditor Law, §§ 232, 233. 1945... Omitted. 1946. . .Civil Practice Act, § 1201. 1947 . . . Partnership Law, § 75. 1948, subd. 1... Civil Practice Act, § 1208. 1948, subd. 2 . . . Civil Practice Act, I 1210. 1948, subds. 3, 4. . .Civil Practice Act, § 1217. 1949, part... Civil Practice Act, §§ 1211, 1212. 1950, . .Civil Practice Act, § 1221. 1951. . .Civil Practice Act, § 1213. 1952. . .Civil Practice Act, § 1213. 1953. . .Civil Practice Act, § 1214. 1954. . .Civil Practice Act, § 1209. 1955, part... Civil Practice Act, §§ 1218, 1219. 1956, part... Civil Practice Act, §§ 1215, 1218. 1957 . . . Public Lands Law, § 138 1958 ... Public Lands Law, § 139. 1959 . . . Public Lands Law, § 139-a. I960.. .Public Lands Law, § 139-b. 1961. . .Civil Practice Act, § 1177. 1962. . .Civil Practice Act, § 1178. 1963. . .Omitted. 1964... Civil Practice Act, § 1182. 1965. . .Civil Practice Act, § 1184. 1966. . .Civil Practice Act, § 1184. 1966... County Law, § 201. 1967. . .County Law, § 201. 1968. . .Countv Law, § 201. 1969 . . . Civil Practice Act, § 1222 ; Justice Ct. Act, § 4. 1970 . . . Civil Practice Act, § 1223. 1971. . .Civil Practice Act, § 1224. 1972. . .Civil Practice Act, § 1225. 1973. . .Civil Practice Act, § 1226. 1974. . .Civil Practice Act, § 1227. 14 C.C.P. Section Now Located In 1975. . .Civil Practice Act, § 1228. 1976. . .Civil Practice Act, § 1229. 1977 . . . Public Lands Law, § 139-c. 1078. . .Public Lands Law, § 139-d. 1979. . .Public Lands Law, § 139-e. 1980. . .Public Lands Law, § 139-f. 1981 . . . Public Lands Law, § 139-g. 1982. . .Civil Practice Act, § 1183. 1983... Omitted. 1984, part... Civil Practice Act, |§ 1202, 1206. 1985, part... Civil Practice Act, §§ 659, 1207 1986, part... Civil Practice Act, §§ 155, 1203; Executive Law, § 69. 1987. . .Civil Practice Act, § 1220. 1988 . . . Civil Practice Act, § 1204. 1989 . . . Civil Practice Act, § 1205. 1990... Civil Practice Act, § 571. 1090, part. . .Civil Practice Act, §§ 162, 820. 1991.. .Omitted. 1992... Civil Practice Act, I 1236, subd. 1. 1993. . .Civil Practice Act, § 1233. 1994 . . . Civil Practice Act, § 1236, subds. 2, 3. 1095, part... Civil Practice Act, § 1247. 1996. . .Civil Practice Act, § 1236, subd. 4. 1997. . .Civil Practice Act, § 1268. 1998.. .Civil Practice Act, § 1239, subd. 1. 1999... Civil Practice Act, S 1242. 2000... Civil Practice Act, § 1243, subds. 1, 2. 2001... Civil Practice Act, § 1243, subd. 3. 2002... Civil Practice Act, § 1243, subd. 4. 2003. . .Civil Practice Act, § 1242. 2004... Civil Practice Act, § 1244, subd. 1. 2005... Civil Practice Act, § 1244, subd. 2. 2006... Civil Practice Act, § 1244, subd. 3. 2007. . .Omitted. 2008 . . . Civil Practice Act, § 415 ; Code Crim. Proc. § 10-c. subd. 1. 2009 . . . Civil Practice Act, § 416. 2010. . .Civil Practice Act, § 417. 2011. part... Civil Practice Act, § 418; Code Crim. Proc. § 10-c. 2012.. .Rule 163. 2013 . . . Civil Practice Act, § 419. 2014... Civil Practice Act, § 420; Code Crim. Proc. § 10-c, subd. 3. 2015 . . . Civil Practice Act, § 1235. 2015. part... Civil Practice Act, § 1230; § 1239, subd. 3. 2016. . .Civil Practice Act, § 1231. 2017. . .Civil Practice Act, § 1232. 2018. . .Civil Practice Act, § 1232. 2019. . .Civil Practice Act, § 1234. 2020. . .Civil Practice Act, § 1235. 2021 . . . Civil Practice Act, § 1237. 2022 . . . Civil Practice Act, § 1238. 2023... Civil Practice Act, § 1239, subd. 2. 2024. . .Civil Practice Act, § 1240. 2025. . .Civil Practice Act, § 1241. 2026 . . . Civil Practice Act, § 1245. 2027. . .Civil Practice Act, § 1246. 2028 . . . Civil Practice Act, § 1248. 2029. . .Civil Practice Act, § 1249. 2030. . .Civil Practice Act, § 1250. 2031. . .Civil Practice Act, § 1251. 2032. . .Civil Practice Act, § 1252. 2033 . . . Civil Practice Act, § 1253. 2034. . .Civil Practice Act, § 1254. 2035 . . . Civil Practice Act, § 1255. 2036 . . . Civil Practice Act, § 1256. 2037 . . . Civil Practice Act, § 1257. 2038. . .Civil Practice Act, § 1258. 2039. . .Civil Practice Act, § 1259. 2040. . .Civil Practice Act, § 1260. 2041. . .Civil Practice Act, § 1261. 2042. . .Civil Practice Act, § 1261. 2043. . .Civil Practice Act, § 1262. 2044 . . . Civil Practice Act, § 1263. 2045... Civil Practice Act, § 1264. 2046... Civil Practice Act, § 1264. 2047... Civil Practice Act, § 1265. 2048, part. . .Civil Practice Act, § 1266. 2049... Civil Practice Act, § 1267. 2050. ...Civil Practice Act, § 1269. §§ 2051-2216 OLEVENGERIS TABLES OF PRACTICE ACTS 556 C.C.P. Section Now Located In 2051 . . . Civil Practice Act, § 1260. 2052... Civil Practice Act, § 1270. 2053... Civil Practice Act, § 1270. 2054 . . . Civil Practice Act, § 1271. 2055... Civil Practice Act, § 1271. 2056... Civil Practice Act, § 1272. 2057... Civil Practice Act, § 1273. 2058... Civil Practice Act, § 1274. 2059... Civil Practice Act, § 1275. 2060... Civil Practice Act, § 1276. 2061... Civil Practice Act, § 1277. 2062... Civil Practice Act, § 1278. 2063 . . . Civil Practice Act, § 1279. 2064... Civil Practice Act, § 1280. 2065 . . . Civil Practice Act, % 1281. 2066... Civil Practice Act, § 1282. 2067, part... Civil Practice Act, §§ 1314, 1315. 2068... Civil Practice Act, § 1317. 2069... Civil Practice Act, § 1318. 2070... Civil Practice Act, § 1319. 2071, part. . .Civil Practice Act, § 1321. 2072... Civil Practice Act, § 1323. 2073... Civil Practice Act, § 1324. 2074 . . . Civil Practice Act, § 1325. 2075... Civil Practice Act, § 1330. 2076, part... Civil Practice Act, §§ 1316, 1322. 2077... Civil Practice Act, § 1326. 2078, part... Civil Practice Act, §§ 1325, 1327. 2079... Civil Practice Act, § 1331. 2080... Civil Practice Act, § 1329. 2081..; Civil Practice Act, § 1328. 2082... Civil Practice Act, § 1332. 2083, part. . .Civil Practice Act, § 1333. 2084 . . . Civil Practice Act, § 1334. 2085 . . . Civil Practice Act, I 1335. 2086... Civil Practice Act, § 1336. 2087... Civil Practice Act, § 1337. 2088... Civil Practice Act, § 1338. 2089, part... Civil Practice Act, § 1339. 2090... Civil Practice Act, § 1340. 2091, part. . .Civil Practice Act, § 1342. 2092... Civil Practice Act, § 1343. 2093... Civil Practice Acts, § 1344. I 2094, part... Civil Practice Act, §§ 1345, 1351. I 2095, part... Civil Practice, Act, § 1346; § 1347,1 first two sentences. I 2096, part. . .Civil Practice Act, § 1347, last three! sentences ; § 1350. f 2097... Civil Practice Act, I 1352. 2098... Civil Practice Act, § 1348. 2099... Civil Practice Act, § 1349. 2100... Civil Practice Act, § 1353. 2101... Civil Practice Act, § 1354. 2102, part... Civil Practice Act, § 1355. 2103. . .Omitted. 2104. . .Omitted. 2105 . . . Omitted. 2106 . . . Omitted. 2107 . . . Omitted. 2108 . . . Omitted. 2109. . .Omitted. 2110. . .Omitted. 2111. . .Omitted. 2112. . .Omitted. 2113. . .Omitted. 2114 . . . Omitted. 2115. . .Omitted. 2116. . .Omitted. 2117. . .Omitted. 2118. . .Omitted. 2119. . .Omitted. 2120... Civil Practice Act, § 1284. 2121... Civil Practice Act, § 1285. 2122... Civil Practice Act, § 1286. 2123... Civil Practice Act, § 1287. 2124... Civil Practice Act, § 112. 2125... Civil Practice Act, § 1288. 2126... Civil Practice Act, § 1289. 2127... Civil Practice Act, § 1290. 2128... Civil Practice Act, 8 1291. 2129... Civil Practice Act, § 1292. 21 30... Civil Practice Act, § 1294. 2131... Civil Practice Act, § 1295. 2132... Civil Practice Act, S 1296. 2133... Civil Practice Act, § 1299. C.C.P. Section Now Located In 2134. .Civil Practice Act, § 1297. 2135. .Civil Practice Act, § 1298. 2136. .Civil Practice Act, 8 1301. 2137. .Civil Practice Act, § 1302. 2138. .Civil Practice Act, § 1300. 2139. .Civil Practice Act, § 1303. 2140. .Civil Practice Act, § 1304. 2141. .Civil Practice Act, 8 1305. 2142. .Civil Practice Act, 8 1306. 2143. .Civil Practice Act, § 1307. 2144. .Civil Practice Act, § 1308. 2145. .Civil Practice Act, I 1309. 2146. .Civil Practice Act, § 1310. 2147. .Civil Practice Act, § 1311. 2148. .Civil Practice Act, I 1312. 2148-a . . .Civil Practice Act, § 111. 2149.. . Debtor and Creditor Law, § 50. 2150.. . Debtor and Creditor Law, I 51. 2151 . . Debtor and Creditor Law, 5 52. 2152. . Debtor and Creditor Law, § 53. 2153. . Debtor and Creditor Law, 8 54, 2154.. . Debtor and Creditor Law, S .55. 2155.. . Debtor and Creditor Law, 8 56. 2156.. . Debtor and Creditor Law, § 57, 2157. . . Debtor and Creditor Law, § 58, 2158. . Debtor and Creditor Law, ! 59. 2159. . . Debtor and Credtior Law, 8 60. 2160. . . Debtor and Creditor Law, 8 61. 2161. . . Debtor and Creditor I^aw, § 62. 2162. . . Debtor and Creditor Law, 8 63. 2163. . . Debtor and Creditor Law, § 64. 2164 . . . Debtor and Creditor Law, 8 65. 2165 . . . Debtor and Creditor Law, 8 66. 2166.. .Debtor and Creditor Law, § 67. 2167.. . Debtor and Creditor Law, 8 68. 2168. . . Debtor and Creditor Law, 8 69. 2169.. . Debtor and Creditor Law, I 70. 2170. . . Debtor and Creditor Law, | 71. 2171.. . Debtor and Creditor Law, § 72. 2172.. . Debtor and Creditor Law, 8 73. 2173.. . Debtor and Creditor Law, 8 74. 2174.. . Debtor and Creditor Law, | 75. 2175.. . Debtor and Creditor Law, 8 76, 2176.. . Debtor and Creditor Law, 8 77. 2177.. . Debtor and Creditor Law, 8 78. 2178.. .Debtor and Creditor Law, 8 79. 2179.. . Debtor and Creditor Law. 8 80. 2180. . . Debtor and Creditor Law, 8 81. 2181,. . Debtor and Creditor Law, 8 82. 2182.. . Debtor and Creditor Law. 8 S3. 2183.. . Debtor and Creditor Law. 8 84. 2184.. . Debtor and Creditor Law. 8 S." 2185.. . Debtor and Creditor Law, 5 86. 2186. . , Debtor and Creditor Law. 8 87. 2187. . . Oebtor and Creditor Law, 5 88. 21SS. . . Debtor and Creditor Law. 8 100. 2189.. Debtor and Creditor Law, 5 101 2190. . . Debtor and Creditor Law, 8 102. 2191.. .Debtor and Creditor Law, 8 103. 2192.. . Debtor and Creditor Law, 8 104. 2193.. . Debtor and Creditor Law, 8 105. 2194.. . Debtor and Creditor Law. § 106. 2195. . . Debtor and Creditor Law, 8 107. 2196. . . Debtor and Creditor Law, $ IDS. 2197.. . Debtor and Creditor Law, 8 109. 2198.. . Debtor and Creditor Law, 8 110. 2199.. . Debtor and Creditor Law, 8 111. 2200. . . Debtor and Creditor Law, 8 120. 2201 . . . Debtor and Creditor Law, 8 121. 2202.. . Debtor and Creditor Law, § ^oo 2203. . . Debtor and Creditor Law, § 123.' 2204. . . Debtor and Creditor Law. 8 124. 2205.. . Debtor and Creditor Law, 8 125. 2206.. . Debtor and Creditor Law, 8 126. 2207.. . Debtor and Creditor Law, § 127. 2208. . . Debtor and Creditor Law, 8 128. 2209.. . Debtor and Creditor Law, 8 129. 2210. . . Debtor and Creditor Law, 8 130. 2211.. . Debtor and Creditor Law, § 131. 2212.. . Debtor and Creditor Law. 8 132. 2213.. .Debtor and Creditor Law, I 133. 2214. . . Debtor and Creditor Law, i 134. 2215.. .Debtor and Creditor Law, i 135. 2216. . . Debtor and Creditor Law, 8 136. 557 CONSECUTIVE SECTIONS TABLE §§ 2217-2369 C.C.P. Section Now Located In 2217. . .Debtor and Creditor Law, § 137. 2218. . .Debtor and Creditor Law, § 138. 2219 . . . Prison Law, § 390. 2220. . .Prison Law, § 391. 2221 . . . Prison Law, § 392. 2222 . . . Prison Law, § 3»3. 2223 . . . Prison Law, § 394. 2224. . .Prison Law, § 395. 2225. . .Prison Law, § 396. 2226. . .Prison Law, § 397. 2227. . .Prison Law, § 398. 2228 . . . Prison Law, § 399. 2229. . .Prison Law, § 400. 2230.. .Prison Law, § 401. 2231...Civii Practice Act, § 1410. 2232... Civil Practice Act, § 1411. 2283... Civil Practice Act, § 1412. 2234... Civil Practice Act, § 1413. 2235... Civil Practice Act, §§ 1414, 1415. 2236... Civil Practice Act, § 1416. 2237... Civil Practice Act, § 1417. 2238... Civil Practice Act, |§ 1418, 1419. 2239... Civil Practice Act, § 1420. 2240... Civil Practice Act, I 1421. 2241... Civil Practice Act, § 1422. 2242... Civil Practice Act, § 1423. 2243... Civil Practice Act, § 1424. 2244... Civil Practice Act, § 1425. 2245... Civil Practice Act, § 1426. 2246... Civil Practice Act, § 1427. 2247... Civil Practice Act, § 1428. 2248... Civil Practice Act, § 1429. 2249... Civil Practice Act, § 1430. 2250... Civil Practice Act, § 1431. 2251... Civil Practice Act, § 1432. 2252 . . . Civil Practice Act, § 1433. 2253... Civil Practice Act, § 1434. 2254... Civil Practice Act, § 1435. 2255... Civil Practice Act, § 1436. 2256... Civil Practice Act, § 1437. 2257... Civil Practice Act, § 1438. 2258... Civil Practice Act, § 1439. 2259... Civil Practice Act, § 1440. 2260... Civil Practice Act, § 1441. 2261... Civil Practice Act, § 1442. 2262... Civil Practice Act, § 1443. 2263... Civil Practice Act, § 1444. 2264... Civil Practice Act, § 1445. 2263... Civil Practice Act, § 1446. 2266 . . . Judiciary Law, § 754. 2267 . . . .Tudiclary Law, § 755. 2268 ... Judiciary Law, § 756. 2269 ... Judiciary Law, § 757. 2270 ... .Judiciary Law, § 758. 2271. . .Judiciary Law, I 757. 2272... Judiciary Law, § 759. 2273 ... Judiciary Law, §§ 760, 762. 2274... Judiciary Law, § 763. 2275... Judiciary Law, § 764. 2276... Judiciary Law, I 765. 2277. . .Judiciary Law, § 766. 2278.. .Judiciary Law, § 767. 2279 . . . Judiciary Law, § 768. 2280... Judiciary Law, § 769. 2281... Judiciary Law, § 770. 2282... Judiciary Law, § 771. 2283... Judiciary Law, I 772. 2284... Judiciary Law, § 773. 2285... Judiciary Law, § 774. 2286... Judiciary Law, § 775. 2287 . . . Judiciary Law, S 776. 2288... Judiciary Law, § 777. 2289... Judiciary Law, § 778. 2290... Judiciary Law, § 779. 2291... Judiciary Law, § 780. 2292... Judiciary Law, § 781. 2293... Judiciary Law, § 790. 2294... Judiciary Law, § 791. 2295.. .Judiciary Law, § 791. 2296... Judiciary Law, S 792. 2297.. .Judiciary Law, § 793. 2298... Judiciary Law, § 794. 2299 . . . Judiciary Law, § 795. 2300.. .Judiciary Law, § 796. C.C.P. Section Now Located In 2301... Judiciary Law, 8 797. 2302 . . . Real Property Law, § 570. 2303... Ileal Property Law, § 571. 2304 . . . Real Property Law, § 572. 2305... Real Property Law, § 573. 2306... Real Property Law, § 574. 2307 . . . Real Property Law, § 575. 2308... Real Property Law, § 576. 2309... Real Property Law, § 577. 2310 . . . Real Property Law, § 578. 2311 . . . Real Property Law, § 579. 2312... Real Property Law, § 580. 2313... Real Property Law, § 581. 2314 . . . Real Property Law, § 582. 2315... Real Property Law, § 583. 2316... Real Property Law, § 584. 2317 . . . Real Property Law, § 585. 2318... Real Property Law, § 586. 2319... Real Property Law, § 587. 2320, part... Civil Practice Act, § 1356. 2320. ..Rule 285. 2321... Civil Practice Act, § 1357. 2322... Civil Practice Act, § 1358. 2323, part... Civil Practice Act, § 1359. 2323... Rule 286. 2323-a.. .Civil Practice Act, § 1374. 2323-b.. .Civil Practice Act, 1374. 2324... Civil Practice Act, § 1359. 2325, part... Civil Practice Act, § 1360. 2325... Rule 287. 2325-a... Civil Practice Act, § 1361. 2326... Civil Practice Act, § 1363. 2327, subds. 1, 2 . . . Civil Practice Act, § 1304. 2327, subd. 3 . . . Civil Practice Act, § 1362. 2328... Civil Practice Act, § 1365. 2329... See Civil Practice Act, § 126. 2330... Civil Practice Act, § 1366. 2331... Civil Practice Act, § 1367. 2332... Civil Practice Act, § 1368. 2333... Civil Practice Act, § 1369. 2334... Civil Practice Act, 8 1370. 2335... Civil Practice Act, § 1371. 2336, part... Civil Practice Act, 88 1372, 137.3. 2336-a, . .Civil Practice Act, 8 1374. 2337... Civil Practice Act, § 1374. 2338... Civil Practice Act, § 1375. 2339... Civil Practice Act, § 1377. 2340... Civil Practice Act, § 1377. 2341... Civil Practice Act, 8 1378. 2342, part. . .Civil Practice Act, §§ 1379-1381. 2343... Civil Practice Act, 8 1382. 2344, part... Civil Practice Act, § 1383. 2344-a. . .Civil Practice Act, § 1384. 2345... Civil Practice Act, § 1385. 2346... Civil Practice Act, § 1386. 2347... Civil Practice Act, 8 1387. 2348... Civil Practice Act, 8 1388. 2349, part... Civil Practice Act, 8 1389. 2349... Rule 295. 2349... Rule 296. 2350... Rule 297, opening paragraph. 2350... Rule 297, subds. 2 and 3. 2.i51, part... Civil Practice Act. §8 1391-1393. 2352... Civil Practice Act, § 1394. 2352. . .Rule 41, subd. 3. 2352. . .Rule 40, subd. 4. 2353... Civil Practice Act, § 154. 2354... Civil Practice Act, 8 1395. 2.355 ... Civil Practice Act, 8 1396. 23.56 ... Civil Practice Act, § 1397. 2357... Civil Practice Act, 8 1400. 2358... Civil Practice Act, § 1401. 2350, part. . .Civil Practice Act, §§ 1402, 1408. 2360... Civil Practice Act, 6 1390. 2361, part... Civil Practice Act, 88 1403, 1405, 1407, 1409. 2362... Civil Practice Act, § 1398. 2363... Civil Practice Act, 8 1399. 2364... Civil Practice Act, 8 1406. ; 2365... Civil Practice Act, 8 1448. 2366, part. . .Civil Practice Act, § 1448, first sen- tence ; 8 1449. 2367... Civil Practice Act, § 1450. 2368... Civil Practice Act, § 1451. 2369... Civil Practice Act, 8 1452. §§ 2370-2526 GLEVENGEB'8 TABLES OF PRACTICE ACTS 558 C.C.P. SiCTioN Now Located In 2370... Civil Practice Act, § 1453, first Bcntence. 2371, part. . .Civil Practice Act, § 1453, last sen- tence ; § 1454. 2372... Civil Practice Act, | 1455. 2373... Civil Practice Act, § 1456. 2374... Civil Practice Act, § 1457. 2375...ClTtl Practice Act, § 1458. 2376... Civil Practice Act, § 1459. 2377... Civil Practice Act, § 1460. 2378... Civil Practice Act, § 1461. 2379... Civil Practice Act, § 1462. 2380... Civil Practice Act, § 1463. 2381... Civil Practice Act, § 1464. 2382... Civil Practice Act, § 1465. 2383... Civil Practice Act, § 1466. 2384... Civil Practice Act, § 1467. 2385 . . . Civil Practice Act, § 1468. 2386... Civil Practice Act, § 1469. 2387... Real Property Law, § 540. 2388... Real Property Law, § 541. 2389 . . . Real Property Law, § 542. 2390... Real Property Law, § 543. 2391 . . . Real Property Law, § 544. 2392 . . . Real Property Law, § 545. 2393... Real Property Law, § 546. 2394 . . . Real Property Law, § 547. 2395... Real Property Law, § 548. 2396... Real Property Law, I 549. •2397... Real Property Law, § 550. 2398... Real Property Law, § 551. ■2399... Real Property Law, § 552. •2400... Real Property Law, § 553. :2401 . . . Real Property Law, § 554. 2402... Real Property Law, § 555. :2403 . . . Real Property Law, § 556. :2404 . . . Real Property Law, § 557. •2405 . . . Real Property Law, § 558. :2406...Real Property Law, § 559. 2407... Real Property Law, § 560. •2408... Real Property Law, § 561. 2408-a. . .Real Property Law, S 562. 2409 . . . Real Property Law, S 563. 2410... Civil Rights Law, § 60. 2411. . .General Corporation Law, 5 60. 2412... Civil Rlglits Law, § 61. 2413... Civil Rights Law, § 62. 2414... Civil Eights Law, § 63. 2415... Civil Rights Law, § 64. 2416. . .General Corporation Law, § 65. 2417.. .County Law, § 161. Executive Law, 8 34. Judiciary Law, § 254. 2418.. .Repealed 1895, c. 946. 2419 ... General Corporation Law, § 170. 2420. . .General Corporation Law, §§ 171, 173. 2421 ... General Corporation Law, § 174. 2422 ... General Corporation Law, § 175. 2423. . .General Corporation Law, §§ 176, 178, 181, 182, 184. 2424 ... General Corporation Law, § 179. 2425. . .General Corporation Law, § 180. 2426.. .General Corporation Law, §| 185, 187. 2427. . .General Corporation Law, §§ 188, 189. 2428 ... General Corporation Law, § 190. 2429 ... General Corporation Law, §§ Ifll, 192. 194. 2430. . .General Corporation Law, § 193. 2431 ... General Corporation Law, 88 177, 195. 2431a. .General Corporation Law, § 277. 2431b .. General Corporation Law, § 268. 2432 . . . Civil Practice Act, § 773. 2433 . . . Civil Practice Act, § 774. 2434 . . . Civil Practice Act, § 778. 2435... Civil Practice Act, % 779. 2436... Civil Practice Act, § 780. 2437... Civil Practice Act, § 781. 2438... Civil Practice Act, § 7S2. 2439... Civil Practice Act, § 783. 2440... Civil Practice Act, 8 784. 2441... Civil Practice Act, § 785. 2442... Civil Practice Act, § 786. 2443... Civil Practice Act, 8 788. 2444...Civll Practice Act, § 790. 2445... Civil Practice Act, 8 789. C.C.P. Section Now Located In 2448... Civil Practice Act, I 792. 2447... Civil Practice Act, 8 793. 2448 . . . Civil Practice Act, 8 794. 2449 . . . Civil Practice Act, 8 795. 2450. . .Civil Practice Act, § 796. 2451. . .Civil Practice Act, 8 797. 2452. . .Civil Practice Act, 8 798. 2453 . . . Civil Practice Act, § 799. 2454. . .Civil Practice Act, 8 802. 2455 . . . Civil Practice Act, 8 803. 2456. . .Civil Practice Act, 8 804. 2457 . . . Civil Practice Act, 8 800. 2458. . .Civil Practice Act, 8 775. 2459 . . . Civil Practice Act, 8 787. 2460 . . . Civil Practice Act, 8 791. 2461 . . . Civil Practice Act, 8 776. 2462. . .Civil Practice Act, § 801. 2463... Civil Practice Act, 8 777. 2464 . . . Civil Practice Act, 8 805. 2465. . .Civil Practice Act, 8 806. 2466. . .Civil Practice Act, 8 807. 2467. . .Civil Practice Act, 8 812. 2468. . .Civil Practice Act, § 809. 2469, part. . .Civil Practice Act, 8 810. 2469, subd. 5 . . . Civil Practice Act, 8 808. 2470. . .Civil Practice Act, 8 813. 2471 . . . Civil Practice Act, 2471a. .Public Officers Law, 2472 . . . Surrogate Ct. Act, 2473 . . . Surrogate Ct. Act, 2474. . .Surrogate Ct. Act, 2475 . . . Surrogate Ct. Act, 2476 . . . Surrogate Ct. Act, 2477 . . . Surrogate Ct. Act, 2478 . . . Surrogate Ct. Act, 2479 . . . Surrogate Ct. Act, 2480 . . . Surrogate Ct. Act, 2481 . . . Surrogate Ct. Act, 2482 . . . Surrogate Ct. Act, 2483 . . . Surrogate Ct. Act 2484 . . . Surrogate Ct. Act, 23§'5 . . . Surrogate Ct. Act, 2486 . . . Surrogate Ct. Act, 2487 . . . Surrogate Ct. Act, 2488 . . . Surrogate Ct. Act, 2489. . .Surrogate Ct. Act, 2490. . .Surrogate Ct. Act 2491 . . . Surrogate Ct. Act, 2492 . . . Surrogate Ct. Act, 2493 . . . Surrogate Ct. Act, 2494 . . . Surrogate Ct. Act, 2495 . . . Surrogate Ct. Act 2496 . . . Surrogate Ct. Act, 2497 . . . Surrogate Ct. Act, 2498. . .Surrogate Ct. Act. 2499 . . . Surrogate Ct. Act, 2500. . .Surrogate Ct. Act, 2501 . . . Surrogate Ct. Act, 2502. . .Surrogate Ct. Act, 2503 . . . Surrogate Ct. Act, 2504 . . . Surrogate Ct. Act, 2505 . . . Surrogate Ct. Act, 2506 . . . Surrogate Ct. Act 2507 . . . Surrogate Ct. Act, 2508 . . . Surrogate Ct. Act, 2509 . . . Surrogate Ct. Act, 2510. . .Surrogate Ct. Act, 2511. . .Surrogate Ct. Act, 2512. . .Surrogate Ct. Act, 2513 . . . Surrogate Ct. Act, 2514 . . . Surrogate Ct. Act, 2515. ..Surrogate Ct. Act, 2516. . .Surrogate Ct. Act 2517 . . . Surrogate Ct. Act, 2518. . .Surrogate Ct. Act, 2519 . . . Surrogate Ct. Act, 2520. . .Surrogate Ct. Act 2521 . . . Surrogate Ct. Act, 2522. . .Surrogate Ct. Act, 2523 . . . Surrogate Ct. Act, 2524 . , . Surrogate Ct. Act, 2525 . . . Surrogate Ct. Act, 2526. . .Surrogate Ct. Act, 8 811. 8 80. 2. 8 3. § 4. § 5. 8 6. 8 7. 8 8. 8 9. 8 10. 8 11. 8 12. 8 13. 8 14. 8 15. 8 16. 8 17. 8 18. 8 19. 8 20. 8 21. 8 22. 8 23. 8 24. 8 25. § 26. 8 27. 8 28. 8 29. 8 30, subd, 1. 8 31. § 32. 8 33. 8 34. 8 35. § 36. 8 37. 8 38. 8 39. 8 40. 8 41. § 42. § 43. 8 44. 8 45. 8 46. 8 47. 8 48. 8 49. 8 50. § 51. 8 52. 8 53. 8 54. 8 55. 8 56. 559 C.C.P. Section Now Located In 2527. . .Surrogate Ct. Act, § 2528. . .Surrogate Ct. Act, § 2529 . . . Surrogate Ct. Act, § 2530. . .Surrogate Ct. Act, § 2531 . . . Surrogate Ct. Act, S . . Surrogate Ct. Act, § . . Surrogate Ct. Act, i . . Surrogate Ct. Act, I . . Surrogate Ct. Act, I . . Surrogate Ct. Act, § . . Surrogate Ct. Act, I .Surrogate Ct. Act, § CONSECUTIVE SECTIONS TABLE 2527-2691 2532 2533. 2534. 2535. 2536. 2537. 2538 „ 2539. . .Surrogate Ct. 2540 „„ »v, ... Surrogate Ct. — ^., o 2541 . . . Surrogate Ct. Act, § 2542. . .Surrogate Ct. Act, § 2543 . . . Surrogate Ct. Act, § 2544. ..Surrogate Ct. Act, § 2545 . . . Surrogate Ct. Act, I 2546.. .Surrogate Ct. Act, § 2547. . .Surrogate Ct. Act, 6 2548. . .Surrogate Ct. Act, 2549. . .Surrogate Ct. Act, 2550 . . . Surrogate Ct. Act, 2551 . . . Surrogate Ct. Act, 2552. . .Surrogate Ct. Act, 2553. . .Surrogate Ct. Act, 2554. . .Surrogate Ct. Act, 2555. . .Surrogate Ct. Act, 2556 . . . Surrogate Ct. Act, 2557. . .Surrogate Ct. Act, 2558. . .Surrogate Ct. Act, 2559. . .Surrogate Ct. Act 2560. . .Surrogate Ct. Act, 2561 . . . Surrogate Ct. Act, 2562. . .Surrogate Ct. Act, 2563 . . . Surrogate Ct. Act, 2564 . . . Surrogate Ct. Act, 2565 . . . Surrogate Ct. Act, 2566 . . . Surrogate Ct. Act, 2567 . . . Surrogate Ct. Act, 2568 . . . Surrogate Ct. Act, 2569.. .Surrogate Ct. Act, 2570. . .Surrogate Ct. Act, 2571 . . . Surrogate Ct. Act, 2572. . .Surrogate Ct. Act, 2573 . . . Surrogate Ct. Act, 2574 . . . Surrogate Ct. Act, 2575. . .Surrogate Ct. Act, 2576. . .Surrogate Ct. Act, 2577. . . Surrogate Ct. Act, 2578. . .Surrogate Ct. Act, 2579 . . . Surrogate Ct. Act, 2580. . .Surrogate Ct. Act, 2581 . . . Surrogate Ct. Act, 2582 . . . Surrogate Ct. Act, 2583.. .Surrogate Ct. Act, 2584. . .Surrogate Ct. Act, 2585 ... Surrogate Ct. Act, 2586 . . . Surrogate Ct. Act, 2587. . . Surrogate Ct. Act, 2588. . .Surrogate Ct. Act, 2589 . . . Surrogate Ct. Act, 2590. . .Surrogate Ct. Act, 2591 . . . Surrogate Ct. Act, 2592. . .Surrogate Ct. Act, 2593 . . . Surrogate Ct. Act, 2594. . . Surrogate Ct. Act, 2595 . . . Surrogate Ct. Act, 2596. . .Surrogate Ct. Act, 2597. . .Surrogate Ct. Act, 2598 . . . Surrogate Ct. Act, 2599. . .Surrogate Ct. Act, 2600 . . . Surrogate Ct. Act, 2601 . . . Surrogate Ct. Act, 2602 . . . Surrogate Ct. Act, 2603 . . . Surrogate Ct. Act, 2604. . .Surrogate Ct. Act, 2605. . .Surrogate Ct. Act, 2606. . .Surrogate Ct. Act, 2607. . . Surrogate Ct. Act 2608 . . . Surrogate Ct. Act 2609 . . . Surrogate Ct. Act 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. j 77. § 78. S 79. § 80. 5 81. S 82. I 83. 5 84. 5 85. § 86. S 87. 5 88. S 89. 5 90. I 91. 5 92. 5 93. § 94. ! 95. 5 96. 5 97. ) 98. i 99. ) 100. j 101. ! 102. i 103. i 104. i 105. ! 106. i 107. i 108. I 109. i 110. i 111. i 112. i 113. i 114. i 115. i 116. i 117. i 118. I 119. i 120. i 121 i 122. 123. I 124. 125. : 126. 127. 128. 129. 130. 131. 132. 133. : 134. 135. 136. 137. 138. 139. C.C.P. Section Now Located I.\ 2610. . .Surrogate Ct. Act, § 140. 2611. . .Surrogate Ct. Act, § 141. 2612. . .Surrogate Ct. Act, § 142. 2613 . . . Surrogate Ct. Act, § 143. 2614. . .Surrogate Ct. Act, § 144. 2615. ..Surrogate Ct. Act, § 145. 2616. . .Surrogate Ct Act, § 146. 2617. . .Surrogate Ct. Act, § 147. 2618. . .Surrogate Ct Act, § 148. 2619. . .Surrogate Ct Act, § 149. 2620. . .Surrogate Ct Act, § 150. 2621 . . . Surrogate Ct Act, § 151. 2622. . .Surrogate Ct Act, § 152. 2623. . .Surrogate Ct Act, § 153. 2624. . .Surrogate Ct Act, § 154. 2625. . .Surrogate Ct Act, § 155. 2626. . .Surrogate Ct Act § 156. 2627. . .Surrogate Ct Act, § 157. 2628. . .Surrogate Ct Act, § 158. 2629. . .Surrogate Ct Act § 159. 2630. . .Surrogate Ct Act, § 160. 2631. . .Surrogate Ct. Act, § 161. 2632. . .Surrogate Ct Act, § 162. 2638... Surrogate Ct Act, I 163. 2634. . .Surrogate Ct Act, § 164. 2635 . . . Surrogate Ct. Act, § 165. .Surrogate Ct. Act, § 166. . Surrogate Ct. Act, § 167. .Surrogate Ct. Act, § 168. .Surrogate Ct. Act, § 169. .Surrogate Ct. Act, § 170. .Surrogate Ct Act, § 171. . Surrogate Ct. Act, § 172. . Surrogate Ct. Act, § 173. .Surrogate Ct Act, § 174. .Surrogate Ct. Act, § 175. .Surrogate Ct Act § 176. . Surrogate Ct. Act, § 177. .Surrogate Ct Act, § 178. .Surrogate Ct Act, § 179. . Surrogate Ct Act § 180. .Surrogate Ct. Act, § 181. .Surrogate Ct Act, § 182. .Surrogate Ct Act, § 183. .Surrogate Ct Act, § 184. .Surrogate Ct. Act, § 185. .Surrogate Ct Act, § 186. .Surrogate Ct. Act, § 187. .Surrogate Ct. Act, § 188. .Surrogate Ct Act, § 189. .Surrogate Ct Act, § 190. .Surrogate Ct Act § 191. .Surrogate Ct Act, § 192. .Surrogate Ct. Act § 193. . .Surrogate Ct. Act, § 194. 2664-a . Surrogate Ct Act, § 231. 2665 . . . Surrogate Ct. Act, § 195. . Surrogate Ct Act, § 196. • Surrogate Ct Act, § 197. .Surrogate Ct. Act § 198. . Surrogate Ct. Act § 199. .Surrogate Ct Act, § 200. .Surrogate Ct Act § 201. .Surrogate Ct. Act, § 202. .Surrogate Ct Act, § 203. .Surrogate Ct Act, § 204. .Surrogate Ct Act, § 205. . Surrogate Ct. Act, § 206. . Surrogate Ct. Act § 207. .Surrogate Ct Act, § 208. .Surrogate Ct Act, § 209. .Surrogate Ct. Act, § 210. .Surrogate Ct Act § 211. .Surrogate Ct Act, § 212. .Surrogate Ct Act, I 213. .Surrogate Ct Act § 214. .Surrogate Ct Act, § 215. . Surrogate Ct. Act, § 216. .Surrogate Ct. Act, § 217. .Surrogate Ct Act, I 218. .Surrogate Ct Act, § 219. .Surrogate Ct Act, § 220. .Surrogate Ct. Act, § 221. 2636 2637. 2638. 2639. 2640. 2641. 2642. 2643. 2644. 2645. 2646. 2647. 2648. 2649. 2650. 2651. 2652. 2653. 2654. 2655. 2656. 2657. 2658. 2659. 2660. 2661. 2662. 2663. 2664 2666 2667. . 2668.. 2669. . 2670. . 2671. . 2672.. 2673.. 2074. . 2675.. 2676.. 2677.. 2678.. 2679.. 2680.. 2681 . . 2682.. 2683.. 2684.. 2685.. 2686.. ,2687.. 2688.. 2689.. 2690. . 2691 . . §§ 2692-2946 CLEYENOER'S TABLES OF PRACTICE ACTS 560 2694. 2695 . . 2696.. 2697 . , 2698 . . 2699.. 2700. 2701., 2702. 2703. 2704. 2705.. 2706. . 2707 . . 2708.. 2709. . . 2710... C.C.P. Suction Now Located In 2692 . . . Surrogate Ct. Act, § 222. 2693 . . . Surrogate Ct. Act, § 223. . . . Surrogate Ct. Act, § 224. . . .Surrogate Ct. Act, I 225. .Surrogate Ct. Act, § 226. .Surrogate Ct. Act, § 227. . .Surrogate Ct. Act, § 228. . . Surrogate Ct. Act, § 229. - . Surrogate Ct. Act, § 230. . . Surrogate Ct. Act, S 232. . . Surrogate Ct. Act, § 233. . . Surrogate Ct. Act, § 234. . . Surrogate Ct. Act, § 235. . .Surrogate Ct. Act, § 236.— . . Surrogate Ct. Act, § 237. .Surrogate Ct. Act, § 238. .Surrogate Ct. Act, § 239. .Surrogate Ct. Act, § 240. -.^ Surrogate Ct. Ate, § 241. 2711 ... Surrogate Ct. Act, § 242. 2712. . .Surrogate Ct. Act, § 243. 2713. . .Surrogate Ct. Act, § 244. 2714 . . . Surrogate Ct. Act, § 245. 2715 . . . Surrogate Ct. Act, I 246. 2716 . . . Surrogate Ct. Act, § 247. 2717. . .Surrogate Ct. Act, § 248. 2718. . .Surrogate Ct. Act, § 249. . . Surrogate Ct. Act, § 251. . .Surrogate Ct. Act, § 252. . . Surrogate Ct. Act, § 253. Surrogate Ct. Act, 9 254. 2723... Surrogate Ct. Act, 8 255. 2724 . . . Surrogate Ct. Act, I 256. 2725 . . . Surrogate Ct. Act, $ 257. 2726. ..Surrogate Ct. Act, $ 258. 2727. . .Surrogate Ct. Act, § 259. .Surrogate Ct. Act, 8 260. . . Surrogate Ct. Act, 8 261. . . Surrogate Ct. Act, 8 262. . . Surrogate Ct. Act, 8 263. .Surrogate Ct. Act, 8 264. . Surrogate Ct. Act, 8 265. 2734 . . . Surrogate Ct. Act, 8 266. 2735. . .Surrogate Ct. Act, 8 267. 2736 . . . Surrogate Ct. Act, 8 268. 2737.. .Surrogate Ct. Act, 8 269. 2738 . . . Surrogate Ct. Act, 8 270. 2739... Surrogate Ct. Act, 8 271. 2740... Surrogate Ct. Act, 8 272. 2741 ... Surrogate Ct. Act, 8 273. 2742... Surrogate Ct. Act, 8 274. 2743... Surrogate Ct. Act, 8 275. 2T44... Surrogate Ct. Act, 8 276. 2745... Surrogate Ct. Act, 8 277. 2746... Surrogate Ct. Act, 8 278. 2747... Surrogate Ct. Act, 8 279. 2748 . . . Surrogate Ct. Act, 8 280. 2749.. .Surrogate Ct. Act, 8 281. 2750... Surrogate Ct. Act, 8 282. 2751... Surrogate Ct. Act. 8 28.3. 2752 ... Surrogate Ct. Act, 8 284. 2753 . . . Surrogate Ct. Act, 8 285. 2754 . . . Surrogate Ct. Act, § 288. 2755 . . . Surrogate Ct. Act, 8 289. . . Surrogate Ct. Act, 8 293. . . Surrogate Ct. Act, 8 294. . .Omitted. . . . Surrogate Ct. Act, 8 298. ...Surrogate Ct. Act, § 299. . . . Surrogate Ct. Act, 8 300. Surrogate Ct. Act, 8 301. 2763 . . . Surrogate Ct. Act, 8 309. 2764 . . . Surrogate Ct. Act, 8 310. ..Surrogate Ct. Act, 8 311. ..Surrogate Ct. Act, 8 312. . . Surrogate Ct. Act, 8 313. „... Surrogate Ct. Act, § 314. 2769 ... Surrogate Ct. Act, 8 315. 2770 . . . Surrogate Ct. Act, 8 316. 2771 . . . Surrogate Ct. Act, 8 317. 2772-2860... Repealed 1914, c. 443. 2861... Justice Ct. Act, 8 2. 2862. ..Justice Ct. Act, 8 3. 2863. . .Justice Ct. Act, 8 4. 2719.. 2720. . 2721.. 2722.. 2728.. 2729.. 2730. 2731.. 2732.. 2733.. 2756. 2757. 2758. 2759 . . 2760. 2761. 2762., 2765. 2766.. 2767 . . 2768. C.CP. Section Now Located In 2863, subd. 5, part. . .Justice Ct. Act, 8 3, subd. 9. 2864 ... Justice Ct. Act, § 5. 2865, part. . .Justice Ct. Act, 88 11, 12. 2866 ... Justice Ct. Act, 8 14. 2867... Justice Ct. Act, 8 15. 2868, part. . .Justice Ct. Act, §8 16-18. 2869... Justice Ct. Act, 8 10. 2870. . .Justice Ct. Act, 8 19. 2871.. .Justice Ct. Act, 8 20. 2872. . .Justice Ct. Act, 8 21. 2873. ..Justice Ct. Act, 8 22. 2874. . .Justice Ct. Act, 8 23. 2875. . .Justice Ct. Act, 8 24. 2876.. .Justice Ct. Act, 8 44. 2877, part. . .Justice Ct. Act, 88 45, 46. 2878. ..Justice Ct. Act, § 48. 2879.. .Justice Ct. Act, 88 51, 52. 2880 ... Justice Ct. Act, 8 53. 2881. . .Justice Ct. Act, 8 54. 2882. . .Justice Ct. Act, 8 55. 2883 ... Justice Ct. Act, 8 56. 2884 . . . Justice Ct. Act, 8 57. 2885 ... Justice Ct. Act, 8 58. 2886 . . . Justice Ct. Act, 8 32. 2887 . . . Justice Ct. Act, 8 35. 2888. ..Justice Ct. Act, 8 36. 2889... Justice Ct. Act, 8 33. 2890. . .Justice Ct. Act, 8 34. 2891.. .Justice Ct. Act, 8 215. 2891, part. . .Justice Ct. Act, § 259. 2892... Justice Ct. Act, 8 218. 2893. ..Justice Ct. Act, 8 214. 2894... Justice Ct. Act, 8 60. 2895 . . . Pustice Ct. Act, 8 61. 2896 . . . Justice Ct. Act, S 62. 2897... Justice Ct. Act, 8 63. 2898.. .Justice Ct. Act, 8 65. 2899 . . . Justice Ct. Act, 8 66. 2900 . . . Justice Ct. Act, 8 67. 2901, part... Justice Ct. Act, 88 68-70. 2902... Justice Ct. Act, 8 71. 2903 . . . Justice Ct. Act, 8 72. 2904 . . . Justice Ct. Act, 8 73. 2905. ..Justice Ct. Act, 8 74. 2906 . . . Justice Ct. Act, 8 75. 2907... Justice Ct. Act, 8 76. 2908 . . . Justice Ct. Act, 8 77. 2909, part.. .Justice Ct. Act, 88 78, 79. 2910 . . . Justice Ct. Act, 88 80, 102. 2911 ... Justice Ct. Act, 8 81. 2912 . . . Justice Ct. Act, 8 82. 2913 . . . Justice Ct. Act, 8 83. 2914 . . . Justice Ct. Act, 8 84. 2915... Justice Ct. Act, 8 85. 2916... Justice Ct. Act, 8 86. 2917... Justice Ct. Act, 8 87. 2918... Justice Ct. Act, 8 88. 2919... Justice Ct. Act, 8 89. 2920. . .Justice Ct. Act, § 94. 2921.. .Justice Ct. Act, 8 99. 2922... See Justice Ct. Act, 8 102. 2923.. .Justice Ct. Act, 8 104. 2924.. .Justice Ct. Act, § 105. 2925.. .Justice Ct. Act, 8 106. 2926... Justice Ct. Act, 8 110. 2927.. .Justice Ct. Act, 8 112. 2928. ..Justice Ct. Act, 8 113. 2929. . .Justice Ct. Act, 8 109. 2930... Justice Ct. Act, 8 114. 2931... Justice Ct. Act, 8§ 111, 115-122. 2932... Justice Ct. Act, § 123. 2933... Justice Ct. Act, 8 124. 2934, part. . .Justice Ct. Act, 8 125. 2935... Justice Ct. Act, § 126. 2936, part ... Justice Ct. Act, 88 129, 150. 2937, part. . .Justice Ct. Act, 88 130, 302. 2938, part.. .Justice Ct. Act, 88 137, 151. 2939, part. . .Justice Ct. Act. 8 135. 2940 ... Justice Ct. Act, § 127. 2941 ... Justice Ct. Act, 8 149. 2942. ..Justice Ct. Act. § 158. 2943... Justice Ct. Act. 8 164. 2944... Justice Ct. Act, 8 157. 2945, part. . .Justice Ct. Act, 8 139, subd. 4. 2946 . . . Justice Court Act, §§ 142, 143. 561 CONSECUTIVE SECTIONS TABLE §§ 2947-3114 C.C.P. Section Now Located In 2947... Justice Ct. Act, § 140. .Justice Ct. Act, § 141. .Justice Ct. Act, § 264. 2950.. .Justice Ct. Act, § 267. 2951... Justice Ct. Act, § 172. .Justice Ct. Act, § 173. .Justice Ct. Act, § 174. .JusHce Ct. Act, § 175. 2955... Justice Ct. Act, § 176. 2956... Justice Ct. Act, § 177. . . Justice Ct. Act, § 178. .Justice Ct. Act, § 179. .Justice Ct. Act, § 180. .Justice Ct. Act, % 181. .Justice Ct. Act, § 182. .Justice Ct. Act, § 183. . . Justice Ct. Act, § 184. ..Justice Ct. Act, § 185. ..JusUce Ct. Act, § 186. 2948.. 2949... 2952... 2953... 2954. 2957.. 2958.. 2959.. 2960.. 2961. 2962. 2963.. 2964.. 2965. 2966... Justice Ct. Act, I 187. 2967.. .Justice Ct. Act, § 188. 2968 ... Justice Ct. Act, § 189. 2969.. .Justice Ct. Act, § 190. 2970.. .Justice Ct. Act, § 191. 2971 ... Justice Ct. Act, § 192. 2972... Justice Ct. Act, § 193. 2973... Justice Ct. Act, § 194. 2974. . .Justice Ct. Act, § 195. 2975.. .Justice Ct. Act, § 196. 2976.. .Justice Ct. Act, § 197. 2977. ..Justice Ct. Act, § 198. 2978. . .JusUce Ct. Act, § 199. 2979.. .Justice Ct. Act, § 200. 2980.. .Justice Ct. Act, § 202. 2981... Justice Ct. Act, | 203. 2982 . . . Justice Ct. Act, § 204. 2983... Justice Ct. Act, § 205. 2984.. .Justice Ct. Act, § 207. 2985.. .Justice Ct. Act, § 210. 2986. . .Justice Ct. Act, §§ 208-210, 2987 ... Justice Ct. Act, § 211. 2988 . . . Justice Ct. Act, § 216. 2989 ... Justice Ct. Act, § 217. 2990... Justice Ct. Act, § 220. 213. 2990, part. . .Justice Ct. 2991 . . . Justice Ct. Act, 2992. . .Justice Court Act 2993, Act, 224, 226. 223, 225. S 218. 227-229. 233, 234. part. . .Justice Ct. Act, 2994. ..Justice Ct. Act, § 230. 2995... Justice Ct. Act, § 231. .Justice Ct. Act, S 232. part. . .Justice Ct. Act, §§ .Justice Ct. Act, § 240. .Justice Ct, Act, § 241. .Justice Ct. Act, § 242. .Justice Ct. Act, § 249. .Justice Ct. Act, I 250. .Justice Ct. Act, S 251. .Justice Ct. Act, § 252. .Justice Ct. Act, § 254. 3006... Justice Ct. Act, § 255. 3007... Justice Ct. Act, § 256. 3008... Justice Ct. Act, § 258. ..Justice Ct. Act. % 229. ..Justice Ct. Act, 8 261. . .Justice Ct. Act, S 262. .Justice Ct. Act, § 263. .Justice Ct. Act, S 268. .Justice Ct. Act, § 269. .Justice Ct. Act, I 270. .Justice Ct. Act, § 271. 3017... Justice Ct. Act, 8 272. .WIS.... Justice Ct. Act, 8 273. .3019. . .Justice Ct. Act, §§ 272, 335, 336. .Justice Ct. Act, § 335. ..Justice Ct. Act, 8 337. ..Tustice Ct. Act, § 274. .Justice Ct. Act, 8 275. .Justice Ct. Act, 8 278. .Justice Ct. Act, 8 281. .Justice Ct. Act, § 282. .Justice Ct. Act, 8 285. .Justice Ct. Act, 8 287. .Justice Ct Act, §§ 288, 296. .Omitted. 2996.. 2997, 2998.. 2999.. 3000.. 3001.. 3002.. 3003.. 3004.. 3005. 3009. 3010. . 3011.. 3012.. 3013 . . 3014.. 3015. . 3016. .5020. 3021. 3022. 3023. 3024. 3025. 3026. 3027. 3028. 3029.. 3030. C.C.P. Section Now Located 3031.. .Justice Ct. Act, 3032.. .Justice Ct. Act, 3033.. .Justice Ct. Act, 3034 . . . Justice Ct. Act, 3035.. .Justice Ct. Act, 3036. . .Justice Ct. Act, 3037. . .Justice Ct. Act, 3038.. .Justice Ct. Act, 3039... Justice Ct. Act, 3040. ..Justice Ct. Act, 3041.. .Justice Ct. Act, 3042. . .Justice Ct. Act, 3043. . .Justice Ct. Act, { 3044. . .Justice Ct. Act, 3045 . . . Justice Ct. Act, 3046... Justice Ct. Act, 3047. . .Justice Ct. Act, i 3048. . .Justice Ct. Act, 3049... Justice Ct. Act, 3050. . .Justice Ct. Act, 3051... Justice Ct. Act, 3052... Justice Ct. Act, 3053... Justice Ct. Act, 3054... Justice Ct. Act, 3055.. .Justice Ct. Act, 3056. . .Justice Ct. Act, 3057.. .Justice Ct. Act, 3058... Justice Ct. Act, 3059... Justice Ct. Act, 3060... Justice Ct. Act, 3061. . .Justice Ct. Act, 3062, part... Justice Ct 3063 . . . Justice Ct. Act, 3064... Justice Ct. Act, 3065... Justice Ct. Act, 3066. . .Justice Ct. Act, 3067 . . . Justice Ct. Act, 3068 . . . Justice Ct. Act, 3069 . . . Justice Ct. Act, 3070... Justice Ct. Act, 3071. . .Justice Ct. Act, 3072. . .Justice Ct. Act, 3073. . .Justice Ct. Act, 3074, part. . .Justice Ct. 3075... Justice Ct. Act, 3076... Justice Ct. Act. 3077.. .Justice Ct. Act. 3078 . . . Justice Ct. Act, 3079. . .Justice Ct. Act, 3080... Justice Ct. Act, 3081... Justice Ct. Act, 3082... Justice Ct. Act, 3083. . .Justice Ct. Act, 3084. . .Justice Ct. Act, 3085. . .Justice Ct. Act, 3086. ..Justice Ct. Act, 3087 . . . Justice Ct. Act, 449, 450. 3088 . . . Justice Ct. Act, 3089 3090. . 3091.. 3092.. 3093.. 3094 . . 3095.. 3096.. 3097 . . 3098 . . 3099. . 3100. . 3101 . . 3102.. 3103 . . 3104. . 3105.. 3106. . 3107.. 3108.. 3109.. 3110.. 3111.. 3112.. 3113.. 3114.. Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct. Act, .Justice Ct Act, In 8 299. § 301. 8 304. 8 305. 8 306. 8 307. 8 308. § 309. 8 310. 8 311. 8 312. 8 313. §§ 279, 2S0. 8 420. 8 427. 8 428. §§ 430, 431. §§ 431, 432. 8 433. 8 434, 435. 8 436. 8 437. 8 438. 8 439. 8 440. 8 441. 8 455. 8 458. 8 456. 8 457. 8 459. Act, 88 8 451. 8 453. 8 454. 8 452. 8 452. 8 442. 8 443. 8 444. 8 446. 8 445. 8 447. Act, 88 314, 315. § 316. 8 317. 8 318. 8 321. § 319. 8 322. 8 323. 8 345. 8 346. 8 347. 8 348. 8 349. 8 350. 8 351. 8 352. 8 353. 8 354. 8 355. § 356. 8 357. 8 358. 8 359. 8 360. 8 361. 8 362. 8 363. 8 364. 8 365. 8 366. 8 367. 8 368. 8 369. 8 370. § 371. g 372. 8 373. 8 374. 8 376. 8 376. 8 377. §§ 3115-3301 OLEVENGER'S TABLES OF PRACTICE ACTS 562 C.CP. Suction Now Located In 3115. . .Justice Ct. Act, § 3T8. 3116-3120... Repealed 1902, «. 580. 3121-3125... Omitted. 3126-3132... Repealed 1902, c. 580. 3133, 3134. ..Omitted. 3135... Justice Ct. Act, § 464. 3136. . .Justice Ct. Act, § 483. 3137. . .Justice Ct. Act, S 484. 3138 . . . Justice Ct. Act, § 485. 3139. . .Justice Ct. Act, § 486. 3140.. .Justice Ct. Act, § 468. 3141. . .Justice Ct. Act, § 469. 3142. . .Justice Ct. Act, § 470. 3143. ..Justice Ct. Act, § 481. 3144. . .Justice Ct. Act, § 472. 3145. . .Justice Ct. Act, § 473. 3146. . .Justice Ct. Act, § 474. 3147.. .Justice Ct. Act, § 475. S148. . .Justice Ct. Act, § 476. 3149. . .Justice Ct. Act, § 482. 3150... Justice Ct. Act, § 477. 3151. . .Justice Ct. Act, S 478. S152 . . . Justice Ct. Act, § 479. 3153. . .Justice Ct. Act, § 491. 3154... Justice Ct. Act, § 320. 3155 . . . Justice Ct. Act, § 480. 3156... Justice Ct. Act, I 465. 3157. . .Justice Ct. Act, § 466. 3158 . . . Justice Ct. Act, § 467. 3159 ... See New York City Ct. Act, § 80. 3160, part. . .New Yorls City Ct. Act, |§ 65, 66, 79. 3161. . .New Yorlc City Ct. Act, § 39. 3162... New York City Ct. Act, § 40. 3163. . .New York City Ct. Act, § 29. 3164... New York City Ct. Act, § 42. 3164-a.New York City Ct. Act, § 67. 3165 . . . New York City Ct. Act, § 57. 3166... New York City Ct. Act, § 58. 3167 . . . Repealed 1902, c. 580. 3168... New York City Ct. Act, § 43. 3169. . .New York City Ct. Act, § 44. 3170. . .New York City Ct. Act, § 59. 3171 . . . New York City Ct. Act, § 41. 3172... New York City Ct. Act, § 30. 3173... New York City Ct. Act, § 32. 3174 . . . New York City Ct. Act, § 60. 3175. . .New York City Ct. Act, § 33. 3176. . .New York City Ct. Act, § 61. 3177. . .New York City Ct. Act, § 46. 3178. . .New York City Ct. Act, § 47. 3179... New York City Ct. Act, § 48. 3180... New York City Ct. Act, § 49. 3181... New York City Ct. Act, § 50. 3182... New York City Ct. Act, § 51. 3183... New York City Ct. Act, § 52. 3184... New York City Ct. Act, § 53. 3185... New York City Ct. Act, § 54. 3186... New York City Ct. Act, § 55. 3187 . . . New York City Ct. Act, § B6. 3188.. New York City Ct. Act, §§ 68, 69. 3189, part... New York City Ct. Act, § 72. 3190... New York City Ct. Act, § 78. 3190, part. . .New York City Ct. Act, § 73. 3191... New York City Ct. Act, § 74. 3192. part... New York City Ct. Act, § 78. 3193. . .New York City Ct. Act. § 75. 3194 . . . New York City Ct. Act, § 76. 3194-a.New York City Ct. Act, § 77. 3195 ... Repealed 1895, c. 946. 3196-3227... Omitted. 3228, part... Civil Practice Act, § 1470. 3228, subd. 2... Civil Practice Act, § 1473. 3228, subd. 3. . .Civil Practice Act, § 1471. 3228, subd. 4. . .Civil Practice Act, § 1472. 3228, subd. 5 part. . .Civil Practice Act, §i 474. 1475. 3229, part... Civil Practice Act, §§ 1475, 1476. 3230... Civil Practice Act, § 1477. 3231... Civil Practice Act, § 1479. 3232... Civil Practice Act, § 1482. 3233... Civil Practice Act, § 1482. 3234... Civil Practice Act, § 1483. C.CP. Section Now Located In 3235 . . . Civil Practice Act, § 1484. 3236... Civil Practice Act, S 1486. 3237 . . . Civil Practice Act, I 1489. 3238 . . . Civil Practice Act, I 1490. 3239... Civil Practice Act, § 1491. 3240... Civil Practice Act, § 1492. 3241 . . . Civil Practice Act, § 1494. 3242... Civil Practice Act, I 1495. 3243... Civil Practice Act, § 1496. 3244... Civil Practice Act, S 1497. 3245 . . . Civil Practice Act, § 1498. 3246... Civil Practice Act, g 1500. 3247 . . . Civil Practice Act, § 1481. 3248... Civil Practice Act, § 1502. 3240... Omitted. 3250... Civil Practice Act, § 1503. 3251, subds. 1, 2. . .Civil Practice Act, § 1504. 3251, subd. 3 part... Civil Practice Act, IS 1504, 1505, 1507, 1509; New York City Ct. Act, I 64. 3251, subd. 4... Civil Practice Act, S 1508. 3251, subd. 5... Civil Practice Act, § 1510. 3252... Civil Practice Act, I 1512. 3253... Civil Practice Act, S 1513. 3254 . . . Civil Practice Act, I 1514. 3255... Civil Practice Act, § 1515; New York City Ct. Act, § 63. 3256, part... Civil Practice Act, S§ 385, 1518; Insurance Law, § 182-a. 3257... Civil Practice Act, § 1516. 3258, subd. 5 part... Civil Practice Act, § 1517; Justice Ct. Act, § 319. 3259... Civil Practice Act, § 1519. 3260... Civil Practice Act, § 1511. 3261... Civil Practice Act, § 1521. 3262, part... Civil Practice Act, §§ 1472, 1538. 3263 . . . Civil Practice Act, S 1534. 3264... Civil Practice Act, 8 1535. 3265... Civil Practice Act, § 1536. 3266... Civil Practice Act, § 1537. 3267... Civil Practice Act, § 1538. 3268... Civil Practice Act, I 1522. 3269... Civil Practice Act, § 1522. 3270... Civil Practice Act, I 1522. 3271... Civil Practice Act, § 1523. 3272 . . . Civil Practice Act, § 1524 ; Justice Ct. Act, I 315. 3273 . . . Civil Practice Act, § 1525 ; Justice Ct. Act, I 315. 3274... Civil Practice Act, I 1526; Justice Ct. Act, § 315. 3275, part... Civil Practice Act, 8 1527. 3275 ... Justice Ct. Act, § 315. 3276... Civil Practice Act, § 1528. 3277... CIvU Practice Act, 5 1529. 3278... Civil Practice Act, § 1530. 3279, part... Civil Practice Act, §§ 191, 1531. 3280. . .Judiciary Law, § 252. Public Officers Law, § 67. 3281 . . . Public Officers Law, § 67. 3282 . . . Public Officers Law, § 67. 3283. . .Judiciary Law, § 256. 3284. . .Repealed 1895, c. 946. 3285... County Law, § 161. 3286 . . . Public Officers Law, § 70. 3287 . . . Civil Practice Act, § 1565 ; Countv Law, § 178. 3288... Civil Practice Act, § 1541. 3289. . .Public Officers Law, § 69. 3290. . .Executive Law, § 84. 3291 . . . Public Officers Law, | 68. .■;292. . .Civil Practice Act, § 1564. r.iO."!. . .Civil Practice Act, § 146. 3294... Civil Practice Act, § 147. 3295... State Finance Law, 8 46. ;;296. . .Civil Practice Act, § 1545. 3297... Civil Practice Act, § 1546. 3298... Civil Practice Act, § 1564; Public Officers Law, § 68-a. 3299... Civil Practice Act, 8 1550. 3300... Civil Practice Act, 8 1552. .■i.iOl, part... Civil Practice Act, §§ 170, 1553. 563 G0N8E0UTIVE SECTIONS TABLE §§ 3302-3419 C.C.P. Section Now Located In 3302... Civil Practice Act, % 1553. 3303 ... Judiciary Law, S 253. 3304, part. ..Civil Practice Act, § 1554; County Law, § 174. 3305 . . . Civil Practice Act, § 1554, subd. 13 ; County Law, § 174, subd. 22. 3305-a. Civil Practice Act, § 1563 ; Public Officers Law, § 66-a. 3306... Civil Practice Act, § 1555; County Law, § 175. 3307, part... Civil Practice Act, § 1558. 3307, Bubds. 18, 20, 21... County Law, § 185-a. 3308, part... Civil Practice Act, | 1558. 3309... Civil Practice Act, § 1559 3310... Civil Practice Act, § 1560 3311... Civil Practice Act, § 1544 3311, part. . .Surrogate Ct. Act, § 30, subd. 2. 3311-a. Judiciary Law, § 749-j. 3312.. .County Law, I 185-b ; Town Law, I 85, subd. 4. 3313 . . . Civil Practice Act, § 1542. 3314... Code Crlm. Proc. § 267-a ; Judiciary Law, § 749-h. 3315.. .Judiciary Law, 749-1. 3316... Civil Practice Act, § 1543. 3317, part... Civil Practice Act, § 1551; Sur- rogate Ct. Act, § 287. 3318... Civil Practice Act, § 1539, 3319... Civil Practice Act, § 1540. 3320, part... Civil Practice Act, §§ 1547-1549; Surrogate Ct. Act, § 286. 3321... Civil Practice Act, § 1561. 3322, -subd. 1... Justice Ct. Act, § 324. 3322, subd. 2 . . . Justice Ct. Act, § 325. 3323, part. . .Justice Ct. Act, §§ 326, 333. 3324... Justice Ct. Act, § 327. 3325. . . Justicfe Ct. Act, § 328. 332B... Justice Ct. Act, § 329. 3327. . .Justice Ct. Act, § 330. 3328. . .Justice Ct. Act, § 331. 3329 . . . Justice Ct. Act, § 332. 3330... Civil Practice Act, §1566; County Law, § 179. 3331... Omitted. 3332... Civil Practice Act, § 1567; County Law, § 180 ; Justice Ct. Act, § 334. 3332-a... Civil Practice Act, § 1556; County Law, § 174, subd. 23. 3332-b, part... Civil Practice Act, § 1557; County Law, § 176. 3332-c. Civil Practice Act, I 1556; County Law, § 174, subd. 23. 3332-d. County Law, % 177. 3333... Civil Practice Act, § 4; General Con- • struction Law, I 11-a. 3334... Civil Practice Act, § 5; General Con- struction Law, I 46-a. 3335... Civil Practice Act, § 4; General Con- struction Law, § 11-a. 3336. . .General Construction Law, § 18-a. 3337. . .General Construction Law, § 16-a. 3338... Civil Practice Act, § 191. 3339... Civir Practice Act, § 8. 3340... Civil Practice Act, § 1574. 3341... Civil Practice Act, § 1575. 3342... Civil Practice Act, § 71. 3343, subd. 2 . . . General Construction Law, § 28-a ; Justice Ct. Act, § 463. 3343, subd. 3 . . . General Construction Law, § 26. 3.343, subd. 4... Civil Practice Act, § 7. 3343, subd. 5... Civil Practice Act, § 7. 3343, subd. 9 . . . General Construction Law, 37-a; Justice Ct. Act, § 489. 3343, subd. 10... General Construction Law, 25-a; Justice Ct. Act, § 490. 3343, subd. 11... Civil Practice Act, § 7; Justice Ct. Act, § 487. 3343, subd. 12 . . . Civil Practice Act, § 7. 3343, subd. 13 . . . Civil Practice Act, § 7 ; Gen- eral Construction Law, § 26-a. 3343, subd. 14 . . . Civil Practice Act, § 7. C.C.P. Section Now Located In 3343, 3343, 3343, 3343, 3343, 3344 3345 3346 3347 3347 3347: 3348 3349 3350 3351 3352 3353 3354 3355 3356 3357 3358 3359 3360 3361 3362 3363 3364 3365 3366 3367 3368 3369 3370 3371 3372 3373 3374 3375 3376 3377 3378 3379 3380 3381 3382 3383 :;384 3385. 3390 3391, 3392, 3393, 3394 3395, 3396, 3397 3398, 3399, 3400, 3401, 3402, 3403, 3404, 3405, 3406 3407 3408 3409 3410 3411 3412 3413 3414 3415 3416 3417 3418 3419 . General Construction Law, subd. 16 . § 20-a. subd. 18. . .Civil Practice Act, I 7. subd. 19, part. . .General Construction Law, §§ 33-a, 53-a. subd. 20. . .Civil Practice Act, % 7. subd. 20, part. . .General Construction Law, S 20-b. . . . Civil Practice Act, § 1. . . . Civil Practice Act, § 3. ...Omitted. , part. . .Civil Practice Act, § 1572. , subd. 7. . .Code Crlm. Proc. § 229-k, , subd. 7, part. . .Judiciary Law, § 749-1:. . . .Civil Practice Act, § 1568. ...See Civil Practice Act, § 1569. ...Omitted. , subd. 1 . . . Code Crim. Proc. § 229-k. ...Civil Practice Act, §§ 1569, 1573. . . . Omitted. ...Civil Practice Act, § 1576. . . . Omitted. ...Omitted. . . . Condemnation Law, § 1. . . . Condemnation Law, § 2. . . . Condemnation Law, § 3. . . . Condemnation Law, § 4. . . . Condemnation Law, § 5. . . . Condemnation Law, § 6. . . . Condemnation Law, § 7. ...Condemnation Law, I 8. . . . Condemnation Law, § 9. . . . Condemnation Law, § 10. ...Condemnation Law, § 11. . . . Condemnation Law, § 12. . . . Condemnation Law, § 13. ...Condemnation Law, § 14. . . . Condemnation liaw, § 15. . . . Condemnation Law, § 16. . . . Condemnation Law, § 17. . . . Condemnation Law, § 18. ...Condemnation Law, § 19. . . . Condemnation Law, § 20. . . . Condemnation Law, § 21. . . . Condemnation Law, § 22. . . . Condemnation Law, § 23. . . . Condemnation Law, § 24. ...Condemnation Law, § 25. . . . Condemnation Law, § 26. ...Condemnation Law, § 27. . . . Condemnation Law, § 29. .3389. . .Omitted. . . . General Corporation Law, § 70. Joint Stock Law, § 8. , . .General Corporation Law, § 71. ...General Corporation Law, § 72. ...General Corporation Law, §§ 72, 73. . . . General Corporation Law, § 74. , . . General Corporation Law, § 75. , . . General Corporation Law, § 76. . . . General Corporation Law, § 330. . . Lien Law, § 40. § 41. § 42. § 43. § 44. § 45. § 46. § 49. § 50. Lien Law, . . Lien Law, . .Lien Law, . . Lien Law, . .Lien Law, . . Lien Law, . . Lien Law, § 47. . .Lien Law, § 48, . . Lien Law . . Lien Law . . Lien Law, § 51 . . Lien Law, § 52, . . Lien Law, § 53 . . Lien Law, § 54 . . Lien Law, . . Lien Law, . .Lien Law, . . Lien Law, . .Lien Law, . . Lien Law, . .Lien Law, 55. § 56. § 57. § 58. § 59. § 60. § 61. §§ 3420-3441 OLEVBNGHR'S TABLES OF PRACTICE ACTS 564 C.C.P. Section Now Located In 3420. ..Lien Law, i 86. 3421 . . . Lien Law, § 87. 3422... Hen Law, § 88. 2423... Lien I>aw, § 89. 3424 . . . Lien Law, § 90. 3425. . .Lien Law, § 91. 3426 . . . Lien Law, § 92. 3427.. .Lien Law, § 93. 3428. ..Lien Law, § 94. 3429... Lien Law, § 95. 3430. . .Lien ILaw, § 96. C.CP Section Now Located In 3431.. .Lien Law, § 97. 3432.. .Lien Law, § 98. 3433.. .Lien Law, % 99. 3434.. .Lien Law, S 100. 3435.. .Lien Law, § 101. 3436.. .Lien Law, § 102. 3437.. .Lien I/aw, § 103. 3438.. .Lien Law, S 104. 3439.. .Lien Law, 8 105. 3440.. .Lien Law, 8 106. 3441... Lien Law, § 107. CLEVENGER'S COURT RULES [565] 567 COURT OP APPEALS RULES OF COURT OF APPEALS NOTICE The first Monday of each session onlj' will be a motion day, an which oral argu- ments 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 sub- mitted 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 11." Appeals from orders should be noticed for the first Monday of a session. 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 it 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 presenting the same, as well as the title of the cause. 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 Rule 7. Requests for copies of opinions should be addressed to the State Reporter, Albany, N. Y. The eighteen printed copies of the case required by Rule 7 to be filed with the clerk must be bound in light-colored (not dark) paper, and may be sent to the clerk for flUng at any time. Ea(ih day's calendar and all court notices to the Bar are printed in the New York Law Journal, which is the legal publication through which the clerk endeavors to reach the legal profession. Attention of attorneys is called to Rule 7, which will be strictly enforced. RULES OF PRACTICE (As amended to February, 1922.) Rule 1. 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 appellant 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 prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal. Rule 2. 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 further return without delay. Rule 3. 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. ULEVENQER'S COURT RULES 568 Kule 4. Appellant to make a case — Its form. In all calendar causes a case shall be made by the appellant, wliicli shall consist of a copy of the return, and the reasons of the Court below for its judgment, or an af&davit 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 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. Rule 5. Cases and points to be printed — Mode of printing. All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white paper, as provided in section 796 of the Code of Civil Procedure, and, if bound, the covers shall be of light-colored paper, which can be legibly written upon. The 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 four to pica leads, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers mentioned in this rule shall be allowed as a disbursement in a cause; unless the requirements of the preceding sentence shall be shown, by af&davit, to have been complied with in all papers printed. Rule 6. Appellant to serve copies of case — Effect of his default. Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the ease on the attorney of the adverse party. If he fail to do so the respondent may, by notice in writing, require the service of such copies within ten days after 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. Rule 7. 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 the respondent, within five days after receipt of the respondent's points ; and no supplemental points will be allowed from either side unless especially 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 ca^^ses upon a new general calendar to be heard during the first two weeks of any session at which such nev.' 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 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 deposited in the library of the New York Law Institute; one copy shall be de- posited in the Law Library of Brooklyn; one copy shall be deposited in the Law Library of the Eighth Judicial District ; one copy shall be deposited in the Supreme Court Law Library at White Plains and one copy shall be delivered to the Reporter. Rule 8. Statement and discussion of facts. 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 question of fact. 569 COURT OF APPEALS Every cause shall be deemed to be submitted to such Judges as may be absent at the time of the argument, unless objection to such submission by counsel arguing the cause be then made. Rule 9. Criminal causes. Appeals in criminal causes brought after making up the calendar, or too late to be placed on said calendar, may be put upon the calendar at any time, and brought on for a hearing 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 shall be noticed or upon which the cause shall be ordered by the Court or stipulated by the parties, to be heard. Rule 10. 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 of an engage- ment elsewhere in the actual trial, or argument, of another cause, commenced before the term of this court, or of other inevitable neccessity, to be shown by affidavit. Other causes may be reserved upon reasonable cause shown, or by stipulation 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 according 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. Rule 11. Motions and appeals from orders. Motions, appeals from final orders in special proceedings, 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 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 Rule 11 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 argument on any Monday when the Court is in session ; provided they are submitted by both sides and the papers are filed with the clerk on or before the preceding 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 succeeding session. Where notice has been given of a motion, if no one shall appear to oppose, it will 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. Rule 12. Call of calendar. Eight causes only will be called on any day; but, after such 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 another, 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 subsequent 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 exrchanged, as of course, for another cause upon the calendar, on filing with the clerk a note of the proposed eslchange, 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 attorneys 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, .vith the same effect as if duly noticed. Upon all subseqent calendars, each of said causes will take the place due to the date of filing the return in the other. GLEYENGER'8 OOVRT RULES 570 Rule 13. Time of Argument. In the argument of a cause not more than two hours shall be occupied by counsel on either side, except by the express permission of thp court. In the argument of an appeal within Rule 11 not more than thirty minutes shall be occupied by the appellant's counsel, nor more than twenty-five minutes by the respon- dent's counsel; unless express permission be given by the court and the cause placed at the foot of the order calendar. Rule 14. Preferred causes. No causes are entitled to any preference upon the calendar ex:cept such as is given by law or the special order of the Court. Any party claiming a preference must so state in his notice of argument to the oppo- site 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 15. Defaults. Judgments of reversal by default will not be allowed. When a cause is called in its order on the calendar, if the 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 next scission, the Court shall revoke said order and restore said appeal. Rule 16. 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. Rule 17. Airmance by default. When a judgment or order shall be aflarmed by the default 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 attorney for the appel- lant 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. Rule 18. Enlarging time — Revoking orders. The time prescribed by these rules for doing any act may be enlarged by the Court or by any of the Judges thereof; and any of the Judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings, according to the terms of the 'jrder. 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. Rule 19. Calendars. When a new Calendar is ordered by the Court, the 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. Rule 20. Motions for reargument. Motions for reargument must be submitted on printed briefs (eighteen copies) without oral argument, on five days' notice to the adverse party, stating briefiy the gi-ound upon which a reargument 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 to the authorities relied upon. A copy of the brief shall be served on the adverse party with the notice of motion. Rule 21. Motions for leave to appeal. Motions for leave to appeal must be sub- mitted, without oral argument, on printed briefs (eighteen copies) and one copy of the record in the court below, and on five days' notice to the adverse party, stating concisely the gTounds upon which such leave is asked. The brief of the applicant must point out the particular portions of the record where the questions sought to be reviewed are raised. A copy of such brief shall be served on the adverse party with the notice of motion. Rule 22. Civil causes. On the filing of the return and the service of the printed cases, the appeal in any civil cause may be added to an existing calendar by either 571 COURT OF APPEALS party upt,^ filing with the clerk a notice of argument lor any day in the term with admission m- prooJ; of service, and the clerk shall thereupon place the cause upon the general calendar at the foot thereof. Any paity claiming a preference must con'ply with Rule 14, but causes thus added to a calendar shall not be preferred over causes placed upon the calendar when the same was first made up, except in the discretion of the court, upon special cause shown. (Added November 26, 1919.) RULES OF THE COURT OF APPEALS FOR THE ADMISSION OF ATTORNEYS AND COUNSELORS-AT-LAW Rule I. General Regulation as to Admission. No person shall be admitted to practice as an attorney or counselor in any court of record of the State except upon an order of the Appellate Division of the Supreme Court admitting him to the bar and licensing him to practice upon compliance with these rules. Rule II. Admission without examination. The following classes of persons may in the discretion of the Appellate Division be admitted and licensed without examination: 1. Any person admitted to practice and who has practised five years as a member of the bar in the highest law court in any other State or territory of the American Union or in the District of Columbia. 2. Any person admitted to practice and who has practiced five years in another country whose jurisprudence is based on the principles of the English common law. 3. Any American citizen domiciled in a foreign country whose jurisprudence is based on the principles of the English common law holding a diploma or degree which would entitle him to practise law in the courts of such foreign country if a citizen thereof. Any person admitted under this rule must possess the other qualifications required by these rules and must produce a letter of recommendation from one of the judges of the highest law court of such other State or country, or furnish other satisfactory evi- dence of character and qualifications. An attorney and counselor from another State or foreign jurisdiction may in the discretion of any court of record be admitted pro hac vice to participate in the trial or argumeat of any cause in which he may be employed. Rule m. Admission on Examination. Three classes of persons may be admitted to the bar upon examination : 1. Persons who are not graduates of a college or university; 2. Persons who are graduates of a college or university; and 3. PersoBs who have been admitted as attorneys and have practised three years in another state or country. In eack class the applicant must prove by his own affidavit to the satisfaction of the State B«ard of Law Examiners that he is a citizen of the United States, twenty-one years •£ age. Stating his age, and an actual and not a constructive resident of the state fer not less than six months immediately preceding and that he has not been examined for admission to practice and been refused admission within four months, and that he has studied law in the manner and according to the conditions in these rules prescribed. Applicants in the first class (i.e., persons who are not graduates of a college or uni- versity) must have studied law for a period of four years. Such an applicant may pursue kis course of law study wholly by serving a clerkship in the office of a prac- ticing attorney; or partly by serving such clerkship and partly by attending a law school; but every such applicant must serve such clerkship for a period of at least one year continuously either before examination by the State Board of Law Examiners of after such examination and prior to admission to the bar. Military or naval service time, wten not otherwise allowed, may be counted as part of the required continuous year of law clerkship, irrespective of the time of its service. But the provision of this rule rec[uiring every such applicant to serve a clerkship for a period of at least one year continuously shall not apply to an applicant who has successfully completed two years in a college or university and shall thereafter have attended a law sdiool for a period of four years. Applicants in the second class (i.e., persons who are graduates of a college or uni- versity) must have studied law for a period of three years. Such an applicant may CLEVENGER'8 COURT RULES 572 pursue his course of law study wholly by serving a clerkship in the office of a practicing attorney; or wholly by attending a law school; or partly by serving such clerkship and partly by attending a law school. Applicants in the third class (i.e., persons who have been admitted as attorneys and have practiced three years in another state or country) must have studied law for a period of one year within this state and pursue such course of study either by serving a clerkship or by attendance upon a law school as the applicant may elect. Candidates for admission to the bar under this rule (ie., upon examination) may be admitted and licensed upon producing and filing with the court the certificate of the State Board of Law Exraminers that the applicant has satisfactorily passed the exam- ination prescribed by these rules and has complied with their provisions, and upon producing and filing with the court, in the case of applicants in the first class (i.e., persons who are not graduates of a college or university), except in the case of a candidate who has completed two years in. a college or university and has thereafter) attended a law school for a period of four years, evidence that he has served a regular clerkship of one year in this state with an attorney or attorneys in regular practice, either before or after having passed such examination. The applicant must also produce and file evidence that he 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 person of good moral character and must set forth in detail the facts upon which such knowledge is based; but such affidavits shall not be conclusive and the court may make further examination and inquiry. If the applicant be a graduate of a college or university he must have pursued the prescribed course of law study after his graduation, provided, however, if such graduate of a college or university has pursued the first year of his law study in an approved law school, and said year of study was prerequisite for his graduation from such college or university, then such year of law school study, if successfully com- pleted, shall be deemed to be and shall be accepted as a part of said prescribed course of law study; and, if the applicant be a person admitted to the bar of another state or country he must have pursued his prescribed period of law study after having remained as a practicing attorney in such other state or country for the period of three years. (As amended May 2, 1916, March 16, 1920, and September 29, 1920.) Rule ni-a. Examination Dispensed With. The examination is dispensed with in the case of any applicant entitled to es'amination under these rules who is a graduate of a law school duly registered by the Regents of the University of the State of New York which requires a three-year course for graduation and who has been prevented from entering two examinations next following his graduation by actual and neces- sary service in the military or naval forces of the United States. Such applicant shall produce before the State Board of Law Examiners, in addition to the proof re- quired by these rules of applicants for examination his diploma and satisfactory evi- dence of adequate instruction in New York Pleading and Practice and of such military or naval service. Each applicant shall pay. the examiners the fee provided by Rule Vni. The State Board of Law Ex'aminers shall certify to the Appellate Division of the Supreme Court in the department in which any such person resides that the examina- tion has been dispensed with. The examination in Substantive Law and Evidence alone may be dispensed with in case the applicant has had no satisfactory instruction in New York Pleading and Practice. (Added March 29, 1918.) Rule Ill-b. The examination is dispensed with in the case of any applicant en- titled to examination under these rules, who is a graduate of a law school duly regis- tered by the Regents of the University of the State of New York, which requires a three-year course for graduation, and whose course of law school study was interrupted by actual and necessary service in the military or naval forces of the United States for not less than twelve months, provided the said applicant was a bona fide resident of this State at the time of the commencement of his attendance upon said law school. Such applicant shall produce before the State Board of Law examiners, in addition to the proofs required by these rules of applicants for examination, his diploma and satisfactory evidence of adequate instruction in New York Pleading and Practice and of such military or naval service. Each applicant shall pay the Examiners the fee 573 COURT OF APPEALS provided by Rule VIII. The State Board of Law Examiners shall certify to the Appel- late Division of the Supreme Court in the department in which any such applicant resides that the examination has been dispensed with. The ex'amination in Substantive Law and Evidence alone may be dispensed with in case the applicant has had no satis- faetory instruction in New York Pleading and Practice. (Added September 29, 1920.) Rule IV. Regulations Concerning Preliminary Studies. All candidates for admis- sion to the bar upon examination, except applicants in the third class mentioned in Rule III (i. e., persons who have been admitted and have practised three years in another state or country), must have pursued a preliminary course of study evidenced by graduation from a college or university, or by passing a Regents' examination or the equivalent, as hereinafter prescribed : Applicants who are not graduates of a college, or university, subject to the limita- tions and requirements hereinafter, in this subdivision, expressed, or members of the bar as above described, before entering upon the clerkship or attendance at a law school herein prescribed shall have passed an examination conducted under the authority ana m accordance with the ordinances and rules of the University of the State of New York, m 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 authenticated, of having suceessfuUv 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 bv the Regents as maintaining 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 who apply for law students' certificates upon equivalents or sub- stitutes, 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 to take effect as of the date of the com- pletion of the Regents' examination, as the same shall appear upon said certificate. Rule V. Regula appeal. When a re-argument of an appeal from an order or judgment of 'the City Court is granted, the Clerk of the Apellate Term places the case upon the calendar of the next term after the filing of the order. No new notice of argument need be served or filed. The ease will be called in the regular order, must be submitted without oral argument and will be referred by the Justices sitting in that term to the Justices who heard the appeal in the first instance, unless it is a case where a re-argument is ordered to be heard de novo, in which event, it will be heard by the Justices then sitting as though it was on the calendar for the first time. Copies of the briefs used upon the original hearing may be handed up at the call of the cal- endar or filed with the Clerk prior thereto. They need not be re-served upon the opposing paTty. If, however, the moving party intends to raise any new point not referred to in his original briefs or to cite new authorities a copy of such supplemental brief must be served upon his adversary and handed up on the call of the calendar and such opposing party will be given leave to reply thereto. The same practice prevails when a re-argument is granted upon an appeal from an order or judgment of the Municipal Court. The return upon appeal must be sent back from the Municipal Court to the Clerk of the Appellate Term who refiles it and places it upon the calendar. If the order granting a re- argument does not so direct, an ex parte order maj^ be obtained directing the Clerk of the Municipal Court to file the return with the Clerk of the Appellate Term for the purpose of a re-argument being had. In the case of Gartland v. N. Y. Zoological Society, Law Journal, May 7th, 1909, not re- ported, it was held that the time to appeal from the determination of the Appellate Term in a City Court case was given by Section 3193 of the Code of Civil Procedure, and in a Municipal Court by Section 1351 of the Code of Civil Procedure. Such appeal must therefore be taken within 20 days from an order or judgment of the City Court and within 30 days from an order or judgment of the Municipal Court, after service of a copy of the order granting leave with notice of its entry. If the motion for leave to appeal or for re-argument be made returnable promptly an appli- cation for an ex parte order staying proceedings pending the hearing and determination of the motion will be entertained or an order to show cause why leave to appeal or a re-argument should not be granted may be obtained with a temporary stay incorporated therein, provided such order is made returnable within five (5) days. The application for the order should be handed to the Clerk, who will procure it to be signed by one of the Justices who heard the appeal and who are alone empowered to grant a stay. Stern v. Barrett Chemical Co., lOS N. Y. Supp., 811. No other Justices or branch of the Supreme Court, unless it be the Appellate Division, -has authority to grant a stay upon such a motion, i. e., a stay of proceedings until the hearing and determination of a motion. The stay terminates with the entry of the order without regard to service of a copy of the order or notice of entry thereof. Tuska v. .Jarvis, 61 Misc., 224; Smith v. Spalding, 30 How. Pr., 339, 442. If leave to appeal is granted, a stay pending the hearing of the appeal in the Appellate Divi- sion will be granted, and if a re-argument is granted a stay will be granted pending the hear- ing of the re-argument. If leave to appeal is denied, no stay will be granted pending a motion made in the Appellate Division for leave to appeal and an application for such a stay must be made in that Court. Rule 8. Motions generally — Practice. ]\Iotions may be noticed for any day of the term and must be submitted without argument. Five days' notice of motion must be given, except motions for leave to appeal to this court under Rule 6 and to dis- miss an appeal. A notice of such motion, whether founded upon an order to show cause or a regular notice of motion, with proof of service thereof, and the opposing affidavits must be filed with the clerk of the Appellate Term at or before 12 o'clock upon the day on which the same is returnable. All decisions will, when announced, be accompanied by an order duly signed, un- less the court shall otherwise direct. Motions for resettlement of orders must be made upon two days' notice. Dated July 7, 1915. NOTES In all motions, the motion papers and proof of service must bo filed with the Clerk of the Appellate Term before 12 M. of the day the same is returnable. All papers must be endorsed with the County Clerk's number of the Clerk of the County embracing the court from which the appeal is taken. CLEVEKGBR'H VOUEW RULES 596 The opposing party has until 12 o'cloclii noon of the return day in which to file opposing affidavits, and briefs may be submitted by either party up to that time. The decision of the Court upon motions is embodied in an order which is filed and entered as soon as the motion is decided. No appeal lies from such an order. Gersman v. Levy, 108 N. Y. Supp., 1107, affirmed 126 App. Div., 83. If a party has served motion papers, but has failed to file them with proof of se/vice, the opposing party upon submitting an affidavit to that effect, and a copy of the papers served upon him, may have the motion dismissed, with costs. Motions for stays pending appeals must be made returnable before the Appellate Term, and five (5) days' notice must be given. The same relief may be obtained under an order to show cause, which may be made returnable on two (2) days' notice. In a proper case a temporary stay, pending the hearing of the motion, will also be granted. The trial of an action in the City or Municipal Courts may be stayed by the Appellate Term, pending the hearing of an appeal from an order of either Court. Fleischman v. Mengis, 118 N. Y. Supp., 671; Amorisia V. Eand, 88 N. Y. Supp., 356. In such motions, a copy of the pleadings, the order and of the affidavits used upon the motion in the Lower Court, both for and against the motion, should, accompany the moving papers to enable the Appellate Term to determine whether there exists probable cause for review. If that is not done, or if the moving papers fail to show merit in tlie appeal, the motion will be denied. If the order handed down upon the decision of a motion is not a proper order, the party desiring to have it corrected should move promptly for a re-settlement of the order. This motion may be made upon two days' notice. A copy of the order as made, together with the proposed order, should be served upon the other party, with a notice to the effect that the proposed order will be submitted to the Court on the day named therein for signature. The proposed order should contain a statement that such order is intended to take the place of the original order entered on the day of , etc. CALENDAR RULES Rule 1. The calendar of appeals from orders and jndgTiients of the City Court will be called in the forenoon of the first day of the term at 10 o'clock A. M. The calen- dar 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. Rule 2. In motion for leave to appeal or for re-argument, an indorsement 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 bj' a motion, the motion papers must be indorsed with the calendar number of such appeal. Rule 3. The points on appeal from judgments and orders of the City Court shall be printed as provided for by Rule 43 of the General Rules of Practice. The points on appeals from the Municipal Court shall be printed or typewritten upon white pgper of uniform size, viz., ten and one-half inches in length and eight inches in width, and fastened on the left-hand edge thereof. Upon the right-hand corner of the points submitted to the. court shall appear the name of counsel arguing or sub- mitting the same. Upon the left-hand corner of the points submitted shall appear the calendar number of the case on appeal. All points, briefs and motion papers must be filed flat. The county clerk's number of the clerk of the county embracing the court from which the appeal is taken must be indorsed on all motion papers. In appeals from judgments and orders of the City Court ten (10) copies of the points or briefs must be filed, and three (3) copies upon appeals from the Municipal Court must be filed. Briefs of counsel, when reference therein is made to the testimony given upon the trial, must give_ the number of the folio in the printed case, if an appeal from the City Court, or the number of the page and the line thereof in the record, if an appeal from the Municipal Court. If the appellant's brief fails to comply with this rule, the appeal may be dis- missed. If the respondent's brief is deficient in this respect, the appeal may be con- sidered on the appellant's brief alone. Rule 4. After submission or argument of cases and submission of briefs no com- munications will be accepted from counsel except to con-eot errors or for citation of an authoritj'. Adopted July 12, 1915. 597 APPELLATE TERJL ~~ ^ECOXD DEi'ARTilENT EULES OF APPELLATE TERM, SECOND DEPARTMENT Relating to the Hearing of Appeals from the Municipal Court and the Making and Hearing of Motions in Said Appellate Term. (As amended to February, 1922.) Rule 1. Calendar of appeals. The clerk of said appellate term shall, at least eight days before the first day of an appointed term thereof, prepare a calendar of all the appeals to that court in which the returns, conformable in all respects with section 161 of the New York City municipal court code and with rule 3, have been filed ten days prior to the commencement of such term. Such appeals shall be placed upon said calendar according to the date of the filing of the returns respectively, shall be brought on for hearing in the manner provided in rule 4, and shall be con- tinued on said calendar until disposed of. Rule 2. Motion to dismiss for want of return. If the appellant fails to procure the return on appeal to be made and filed as prescribed in section 161 of said muni- cipal court code, the respondent may move to dismiss the appeal, and such appeal shall be dismissed unless the justices assigned to hear the same shall, for good reason shown, exrtend the time. (As amended Feb. 2, 1916.) Rule 3. Returns, points, etc. The stenographer's minutes, attached to the return, and the points on appeal, shall be printed or typewritten upon white paper of the quality and weight prescribed in section 796 of the code of civil procedure shall be of uniform size, namely, ten and one-half inches in length and eight inches in width; the stenographer's minutes shall be numbered at the bottom of the page, fastened at the left hand edge, bound with suitable cover, and appropriately indexed. Such points shall be fastened on the left hand edge thereof and the number of the appeal shall be indicated thereon, and on the upper right hand corner of the points sub- mitted to the court shall appear the name of the counsel arguing or submitting the same. All returns on appeal, including the evidence, the exhibits and all papers relating thereto, all points, briefs and all motion papers for submission to the court must be flat and so delivered to the clerk of the appellate term; all motion papers for submission to the appellate term, or to a justice thereof, must comply with the fore- going conditions as to quality and weight. The exhibits offered by each party shall be copied in typewriting and annexed to the return in the order of their admission in evidence, and the originals thereof shall also be returned separate, attached in the order in which they are numbered or lettered and placed flat in an appropriate en- velope, plainly marked, and enclosed in the return envelope. The opinion of the municipal court justice, if any, must be included in the return. Returns on appyeal from orders must be accompanied by a certificate from the clerk of the municipal court that the return contains the pleadings, if any, all afS- davits and other papers recited in the order appealed from. (As amended Feb. 2, 1916.) Rule 4. Noticing appeals for hearing. After the flling of the return therein an appeal may be brought to a hearing upon notice of either party of not less than eight days, which notice, with proof of sendee thereof, must be filed with the clerk of the appellate term on or before the Monday preceding the first day of the term. If the parties to an appeal shall fail to bring the same to a hearing for at least two terms, after the same had been regularly placed on the calendar, the court must dis- miss such appeal unless it directs its continuance for good cause shown. 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 ease, but judgment of reversal by default will not be allowed. Rule 5. Hearing of appeals; points and filing same. The appellant shall, 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 appellate term three original copies of his points to be used on the hearing and shall also, on or before the same day, serve a copy of said points on the respondent or his attorney. Upon failure to file and serve GLEVENGER-8 COURT RULES 59S said points the appeal may, ■when called in its regular order on the calendar for argu- ment, 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 Friday preceding the first day of the term, the respondent miist serve a copy of his points upon the appellant or his attorney and file with the clerk three original copies thereof, to be used upon such argument and hearing. No further time for filing points will be granted and no other points will be received unless the court shall, by its own motion, direct further points to be submitted. No appeal will be heard or received on submission unless it has been noticed for argument and proof of service thereof has been filed as provided in rule 4, and all appeals must be heard or submitted when regularly called for arguments, unless the court, for cause shown, shall adjourn the hearing until a subsequent day. No appeal shall be submitted without argument unless the points have been filed and served as hereinbefore provided, and in the argument of an appeal not more than fifteen min- utes shall be occupied by counsel on either side except by permission of the court. (As amended Feb. 2, 1916.) Rule 6. Judgments, orders and resettlements. The judgment or order of the appel- late term shall be entered in the ofiiee of the clerk of the county embracing the dis- trict of the municipal court whence the appeal comes, and the return, with a certified copy of the judgment or order attached thereto, and all papers on which the appeal was heard, shall be remitted to the municipal court in the district from which the appeal was taken, as provided in section 163 of the municipal court code. If, how- ever, a motion for reargument or an application for leave to appeal to the appellate division is made, the return on such appeal shall be retained by the clerk of the appel- late term until the motion is decided, and if a new trial has been ordered and the day fixled for such new trial shall intervene the submission and decision of such motion, then the day fixed for such new trial shall be adjourned for three weeks from that day. 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 an order must be made within ten days after its entry and upon two days' notice to the adverse party or his attorney. Rule 7. Motions generally. Five days' notice of motion shall be given of all mo- tions made in the appellate term, and all motions noticed for the first day of the term, whether upon an order to show cause or on regular notice of motion, with proof of service thereof, and a note of issue, must be filed with the clerk of the appellate term on the Thursday preceding the commencement of the term. The mo- tion calendar will be published on the Saturday preceding the commencement of the term, but no motion will be placed thereon eiOjept upon compliance with this rule and rule 3 so far as applicable. Briefs of counsel and the answering affidavits, if any, must be filed with the clerk on or before twelve o'clock noon on the Saturday pre- ceding the first day of the term. All motions, including those made under rule 2 may be made returnable any day of the term, must be submitted without argument, and when relating to a pending appeal the calendar number of such appeal shall be indicated on the first page thereof, to the right of the title of the action. (As amended Feb. 2, 1916.) Rule 8. Motion for rearguments and applications for leave to appeal. Motions for reargument and applications for leave to appeal to the appellate division in the second judicial department fi-om a judgment or an order of the appellate term, based upon affidavits setting forth concisely the matters claimed to have been overlooked or misapprehended by the court, a concise statement of the grounds of alleged eiTor, and the reasons why said motion should be granted or such application be allowed, with appropriate reference to the authorities relied upon, may be made and sub- mitted to the justices Avho heard such appeal, after five days' notice thereof to the adverse party, provided the motion papers be served within ten days after the entry of the order determining said appeal; all papers to be used on such motion, together with a copy of the opinion, if any, and briefs of counsel, shall be delivered to the clerk of the court within fifteen days after such determination and thereupon deemed submitted, without argument. 599 BRONX COUNTY SUPREME COURT An appeal to the appellate division from an order granting a new trial will not be allowed unless the party so applying files with his notice of application for such leave to appeal a stipulation that if the order appealed from be affirmed or the appeal therefrom be dismissed, judgment absolute may be rendered against him. Motions for leave to appeal to the appellate term from an order of the municipal court pursuant to the provisions of paragraph 7 of section 154 of the municipal court code, may be made to the justices of the appellate term or one of them, pro- vided such application has first been made to and denied by the justice of the muni- cipal court making the order sought to be reviewed. The motion must be made upon the record in the court below, a copy of the opinion, if any, of the justice making the order, and a concise statement of the ground of the alleged error. The motion may be made after five days notice thereof to the- adverse party, provided the motion papers be served within ten days after the order of the justice of the municipal court denying leave to appeal was made. The motion papers shall be delivered to the clerk of the appellate term within fifteen days after the making of the order by the justice of the municipal court denying leave to appeal, except that after the last Monday of June the same may be delivered to the clerk of the appellate term at any time prior to the Monday preceding the beginning of the next succeeding appellate term. A party seeking a stay pending a motion for reargument, or asking leave to appeal to the appellate term, or applying for allowance of an appeal to the appellate divi- sion as hereinbefore provided, must give to the adverse party five days' notice of such application, and the motion papers shall show proof of such sei'vice. All papers in motions provided for by this rule shall be delivered to the clerk of the appellate term and thereupon be deemed submitted, without arguments, and the clerk shall bring the same to the attention of the court, or one of the justices thereof, as the provision for such motion may require. In motions for reargument or for leave to appeal to the appellate division as en- dorsement must be made upon the motion papers, stating the term of the court at which the case was argued or submitted. CALENDAR RULES ADOPTED BY THE APPELLATE TEEM Rule 1. The regular day calendar of appeals from orders and judgments will be called on the first and succeeding davs of each term at one o'clock P. M. (As amended Feb. 2, 1916.) Kule 2. If an appeal upon the calendar is affected by a motion, the motion papers and the note of issue must be endorsed with the calendar number of such appeal. EiUle 3. Briefs of counsel, when reference therein is made to the testimony givei; upon the trial, must give the number of the folio or the page in the record. 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. Adopted February 2, 1916. . . BULES OF SUPREME COURT, BRONX COUNTY Rules for Regulating the Special and Trial Terms of the Supreme Court, First Judicial District, in Bronx County, and Establishing the Calendar Practice Therein. (Amended December 12, 1921; effective January 3, 1922.) Rule I. General calendars. There shall be a General Calendar for issues of fact triable by a court and jury, and also a General Calendar for equity causes, which calen- dars shall be made up from time to time as ordered by the Appellate Division of the Supreme Court, First Department. These calendars shall remain until new calendars are ordered. All notes of issue must be legibly typewritten and must contain all par- ticulars required by Rule 151 of the Rules of Civil Practice. All motions or applications regarding the calendars shall be made to the justice holding Trial Term, Part II. The calendar clerk shall have charge of the calendars herein provided for and shall prepare Day Calendars containing as many of the pending causes as the justices shall CLEYFA'GER')^ COURT RULES 600 direct. Additions shall be made to such calendars on Monday of each week as required, and published in the Law Journal at least four days prior thereto. All orders relating to the calendars and all notes of issue of causes to be placed upon the calendars shall be filed with said calendar clerk. Rule II. Reserved causes; motions in respect to calendar. Causes may be marked "reserved generally" by filing a stipulation with the calendar clerk to that effect. All motions in reference to causes so marked, or to those in which new trials have been ordered, shall be made as indicated in Rule I. If it shall appear that the plaintiff has unreasonably neglected to proceed in any action, or that younger issues have been tried in their regular order, the defendant or one or more defendants in the action may move to dismiss the complaint as pro- vided for in Rule 156 of the Rules of Civil Practice upon five days' notice of motion to that effect. Rule III. Preferred causes under the statutes. A party claiming to be entitled to a preference under § 138 of the Civil Practice Act may apply therefor to the court at Trial Term, Part II, in the manner prescribed by j 141 of said act. If the applica- tion for a preference be granted the court shall direct the cause to be placed upon an appropriate Day Calendar for a day certain for trial and called after the causes then upon such Day Calendar marked " ready." If the party who has moved for the preference shall not be ready to proceed with the trial when the cause is called for trial, the court, in its discretion, may allow an adjournment or send the cause to the foot of the General Calendar or direct a dismissal or inquest or otherwise dispose of the cause as justice may require. Rule IV. Preferred causes generally. Subd. 1. In an 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, or upon a bond or undertaking on appeal, or upon a negotiable instrument, or for goods sold and accepted, either party may, after the cause has been placed upon the General Calendar, upon two days' notice of motion to the opposing party, apply to the justice holding Part II for an order placing said cause upon the Day Calendar for a day certain. Subd. 2. In an action wherein the plaintiff seeks to recover upon an account stated, or for wages, salary or compensation for services, or uipon a policy of insurance, or for rent or hire of real or personal projDerty, or for money had and received, or for money loaned, or on a statute wherein 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 of motion to the defendant, and upon competent proof by aflSdavit of the facts upon which the cause of action is based, apply to the justice holding Part II for an order placing said cause upon the Day Calendar for trial. Copies of the affidavits and exhibits, if any, upon which the application is based must be served with the notice of the application. If upon the affidavits so submitted and the affidavits of the opposing party the court shall be satisfied that there is no substantial defense to the action, or that the answer was not interposed in good faith, or was interposed for the purpose of delay, the court may place the cause upon a Day Calendar for trial. The court may, in its discretion, grant or deny the application, with or without costs, or upon terms, suich as admitting facts not actually controverted, consenting to the examination befoie trial of a party or witnesKe=;, producina; books, papers or dociiments or giving security to secure the plaintiff in the event of final judgment being in his favor. The papers on which the application shall be made and the answering affidavits, if any, must be filed with the calendar clerk before 12 o'clock noon of the day for which the application is noticed, and no oral argument will be heard on such application uinless so ordered by the justice holding Part II. All causes ordered on the Day Calendar pursuant to this rule shall be placed thereon by filing with the calendar cleric the order directing the cause to be so placed, and shall be marked ready for trial unless postponed for good cause shown by affidavit to the satisfaction of the justice holding Part II. These amendments to take effpct January 3, 1922. Dated New York, December 12, 1921. 601 BRONX COUNTY SVPEiEME COURT Kule V. Adjoumnients. When a cause has appeared on the Day Calendar it must proceed to termination, unless it shall be made to appear by affidavit to the satis- faction of the court that an adjournment should be granted. In a cause upon the Day Calendar for trial, where it appears that counsel who is to try the same is to argue a cause upon the Day Calendar of the Supreme Court of the United States, or the Court of Appeals of the State of New York, or the United States Circuit Court of Appeals, or who is actually engaged in the trial of a cause in a Federal or State court of record, except the Municipal Court, sitting in the County of Bronj;:, New York, Kings, Queens, Nassau or Richmond, the cause shall be adjourned until such argument or trial is concluded, unless the -trial in which the counsel is engaged is likely to be protracted. But a cause on the Day Calendar shall not be adjourned on account of the engagement of counsel for more than three days except by the court or upon the consent of all the parties to the cause. Not more than two causes shall be held ready on the Day Calendars for one counsel in addition to the cause in which he is engaged unless otherwise ordered by the court. In any such case the counsel who is to try the causes must be designated on the call of the Day Calendar. Rule VI. Terms of court; number of; times of holding; time of opening; what causes tried at, respectively. There shall be two Trial Terms of the Supreme Court, Bronx County, to be known respectively as Trial Terms, Parts I and II, and one Equity Term, to be known as Special Term. Each of these terms shall commence on the first Monday of January, February, March, April, May, June, October, Novem- ber and December in each year (except that when the first Monday is a legal holiday the t6rm shall commence on the day following). In addition, Trial Term, Part I, and Special Term shall each hold a term during July, August and September in each year, and all terms shall continue to the Friday preceding the first Monday of the following term, or until the term shall be adjourned without day. The terms shall open at 10 a. m. on each trial day during the terms, and shall con- tinue in session until 4.30 p. m. Applications for the trial of criminal causes and the disposition of such causes shall be made to the justice holding Trial Term, Part I. Kule VII. Motions and Ex parte. Motions may be noticed for any day during the term. The order to show cause of notice of motion, with proof of service thereof, must be 'filed with the clerk before noon on the day prior to which it is noticed to be heard, except when an order to show cause is granted returnable in less than three days, when application may be made to the justice presiding at Special Term to have same added to the calendar. Whenever filed papers may be required in any causes pending at Special Term the attorneys must requisition them in advance. Application for all court orders, ex parte or by consent, or where notice has been waived or is not required, must be made to Special Term at the clerk's ofilce. Any ex parte court order granted by any justice of the court other than the one assigned to hold Special Term, shall not be entered by the clerk. Rule VIII. Fines imposed on delinquent jurors. An order directing a delinquent juror to show cause why the payment of a fine Aould not be enforced must be granted by and made returnable before the justice by whom said fine is imposed, and made returnable at a Trial Term to which said justice is assigned upon such day and at such time as he shall designate. Where a justice by whom a fine was imposed has ceased to be a member of the court, or has been desigiiated as a member of the Appellate Division, or the Appel- late Term, or is absent or unable for any reason to hear or determine the matter, the order directing the delinquent juror to show cause in such case must be granted by and made returnable before and heard and determined by the justice assigned to hold Trial Term, Part I, upon such day of the term and at such time as he shall designate. Rule IX. Accounts of trustees. In all actions or proceedings brought in the Supreme Court involving an accounting of a testamentary trustee or a trustee under a deed, notice of such action or proceeding must be given to the State Comptroller before a judg-ment or order is made passing the accounts of such trustees. Rule X. Registration of land title. A. A petition for registration of title to real property made under the Real Property Law (chapter 52 of the Laws of 1909), as amended, must be made at the Special Term of the Supreme Court, in New York CLBVENGER'8 COUBT RULES 602 County, which iis hereby designated, for this purpose, the "Title Part" of the said court under section 371 of the said act, and the justice of the Supreme Court from time to time assigned to the Special Term is hereby designsited as the justice to have general supervision and control of the business coming under the act in the County of New York, and all petitions to register title to real property under the act must be returnable at the said "Title Part" of the Special Term. B. The survey, map or plan to be filed with the petitioner subject to the approval of the court, if not filed with the petition, shall be filed with the examiner of title of least fourteen days before the return day designated in the notice of hearing. C. After the time provided in the notice of hearing shall have expired, or within such further time as may have been allowed by the court, if there has been no an- pearance or answer, the petitioner may apply to the "Title Part" of the Special Term, for a final order or judgment as provided for in the act. In all applications for final order or judgment the applicant must present to the court proof by affi- davit that all the provisions of the act entitling the applicant to such final order or judgment have been complied with. D. Where an answer is interposed which raises an issue of fact which in an action relating to the title to real property would be triable by a jury, either party to the proceeding who is entitled to have such issue determined may apply to the "Title Part" of the Special Term, within twenty days after the issue has been joined, to have the issues framed to be tried by a jury, as provided by section 429 of the Civil Practice Act. The trial of such issues shall be had and the subsequent proceeding in relation thereto shall be such as is prescribed by the Civil Practice Act. After such issues are disposed of, either party to the proceeding may apply to the " Title Part " of the Special Term, upon eight days' notice to all who have appeared in the proceeding, for final order or judgment, and on such application the court shall try all other issues in the proceeding not disposed of by the jury, or may refer any such issues undisposed of to be tried by a referee. Where all issues have been disposed of, either party may then, upon notice of eight days to all who have appeared in the proceeding, apply for final order or judgment at the " Title Part " of the Special Term. E. All applications to the court after a certificate of registration has been issued under the provisions of the act must be made at the "Title Part" of the Special Term hereinbefore designated, upon notice of eight days to all persons interested in the application. All applications to the court under section 422 of the act shall be made at the "Title Part" of the Special Term, upon eight days' notice to all persons in interest, as provided in that section. All applications made under section 428 of the act shall also be made at the "Title Part" of the Special Term, upon eight days' notice to the city chamberlain and all other parties who have appeared in the proceeding to recover for loss or damage or deprivation of real property out of the assurance fund provided for by the act. Bule XI. Notice of trial and note of issue. In the Cornties of Ne^v York and Bronx, where a party has served a notice of trial and filed a note of issue for a term at which the cause 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 disposed of. This rule to take effect as of September 30, 1921. Dated New York, January 16, 1922. RULES OF SUPREME COURT, KINGS COUNTY TRIAL TERM CALENDAR RULES Rule 1. 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 pet down for a day of any subsequent term only, by a stipulation or a five days' notice filed with the said clerk. Rule 2. Causes will not be set down for days upon the call of the Day Calendar. The answer must be "ready" or "off:" Rule 3. The first day a cause is on the Day Calendar it will be held for that day if 603 KIXGS COUNry SUPBtJJlE COURT Rule 4. The Court will take notice of engagements of counsel in Kings County upon an oral statement. Rule 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. Rule 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, including a motion in the Special Term for Motions to open a default. Rule 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 endorsements thereon after the call of the Day Calendar, and file the same with the clerk. Rule 8. 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 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 9. If a cause answered "Ready," 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 10. Any action to recover the price of merchandise sold; for wages; for money loaned, or had and received; upon negotiable instruments; or upon a bond or an undertaking, which is properly on the calendar and having a number may be advanced to any day calendar by the plaintiff by filing at least 30 days prior thereto with the calendar clerk an affidavit showing the nature of the action, and that the plaintiff st the time the cause of action arose was and now is a resident of Kings County; and if the plaintiff is an assignee of the cause of action that the assignor was such a resident at the time the cause of action arose; together with proof of service of notice of such advancement to all parties who have appeared, or in lieu thereof the consent of all such parties. The pleadings must be exhibited to the Calendar Clerk at the time of such filing. Causes so advanced must be tried when reached or the preference and the right thereto under this rule is lost. SPECIAL RULE. Notice of Trial and Note of Issue. In the Counties of Kings, Queens, Nassau, Richmond and Westchester, 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 calendar until it is disposed of. This rule is to take effect as of September 30, 1921. Dated Kings County, N. Y., January 25, 1922. By order of the court. CRIMINAL CAUSES. The trial of criminal causes pending in the County of Kings may at any time be moved in Trial Term, Part VIII, and the Justice assigned to hold such term shall, at any time when he deems the public interests require it, order a Grand Jury to be summoned for the term. In all other counties criminal causes will be heard at the appointed Trial Teims. SPECIAL TERM, PART I, RULES. Rule 1. No contested motion shall be placed on the Day Calendar of the Special Term for contested motions, unless a note of issue, giving the title of the action or pro- ceeding, the names of the attorneys entitled to notice and of the attorneys filing such note of issue, shall be filed with the clerk of the part two days before the day on which the motion is noticed to be heard, except where an order to show cause is granted, return- able in less than two days, when the clerk shall, upon exhibition to him of the order and a note of issue as above indicated, place the motion upon the calendar at any time before the time for hearing, or the Justice assigned to said part may place the motion upon the calendar on the day when the order or notice is returnable. CLEVENGER'S COURT RULES 604 Rule 2. No motion -will be heard unless the moving- papers and all papers in opposi- tion are ready for submission at the time of argument. Rule 3. Where the motion is determined on the argument, the moving papers and all papers in opposition must be immediately delivered to the clerk, and the order must be presented before the close of the next succeeding day. Rule 4. Where on the call of the calendar, motions are granted by default, the moving papers must be immediately delivered to the clerk and the order must be presented on the same day. Rule 5. Orders on decisions must be presented before the close of the day succeeding that on which the same appears in the Law Journal. Rule 6. Upon failure to comply with the foregoing rules, motions will be deemed abandoned. Rule 7. No motions will be considered on submission of papers. Counsel who make or oppose motions are expected to argue them orally. SPECIAL TERM, PART II, RULES. For all ex parte applications and for the hearing of undefended divorce causes and for application of aliens to become citizens of the United States. Orders for the examination of judgment debtors or third parties in supplementary proceedings and orders for examination of parties before trial will not be made return- able on Saturday or any day set apart for the hearing of uncontested divorce cases. Causes triable by the Court without a Jury may be noticed for trial and notes of issue filed for the Terms of July, Augxist and September. There shall be no regular day calendar of trials during such months, but the Court at Special Term, Part II, may, in its discretion, when it is made to appear to it, on a motion made upon affidavit, on two days' notice to the opposite side, that special reasons exist why the cause should be tried prior to the October Term, order the cause on for trial and tix a day therefor. All of the aforesaid Special Terms in Part II shall include the Saturdays of each week. There will be no Special Term in Part I on Saturdays, but the Judge sitting in Part II will hold this Term for Saturdays also. Motions may be noticed for any legal day of the year. NATURALIZATION OF ALIENS. Applications of alien to become citizens of the United States of America will be enter- tained at Special Term, Part II, on one day of each week to be set apart for that purpose by the Justice presiding thereat. Also two weeks in the January, May and June Terms of Part 4 will be set apart by the Justice presiding thereat for the same purpose. SPECIAL TERil, PART III, EQUITY CALENDAR RULES. Rule 1. 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 2. Causes will not be set down for days upon the call of the Day Calendar. The answer must be "ready" or "off." Rule 3. The first day a cause is on the Day Calendar it will be held for that day if marked "ready." Rule 4. The Court will take notice of engagements of counsel in Kings County upon an oral statement. Rule 5. The Court will pay no regard to engagements of counsel elsewhere 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 nn ai>i)ellate court will not be regarded unless stated in the same way and with equal precision. 605 \EW YORK COVNTY SUPREME COURT Rule 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, including a motion in the Special Term for Motions to open a default. Rule 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 endorsements thereon after the call of the Day Calendar, and file the same with the clerk. Rule 8. 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 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 9. If a cause answered "Ready," 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 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. Rule 11. In any contested action brought to foreclose a mortgage on real property where a notice of trial has been duly served, in which the right to a preference under this rule is claimed, the action shall be placed upon a special calendar to be called in Special Term, Part III (Trials), on Friday in each week, upon filing a note of issue and exhibiting such notice of trial to the clerk of that part, with proof of due service thereof. During the months of July, August and September such actions may be noticed for trial at Special Tei-m, Part I (Motions), and the trial may be had at such term on any Friday after the date for which the cause shall have been noticed. SPECIAL RULE. Notice of Trial and Note of Issue. In the Counties of Kings, Queens, Nassau, Richmond and Westchester, where a party has served a notice of trial and filed a note of issue for a tenn at which the ease is not tried, it is not necessaiy for him to ser^'e a new notice of trial or file a new note of issue for a succeeding term, and the action must remain on the cale nda r until it is disposed of. This rule is to take effect as of September 30, 1921. Dated Kings County, N. Y., Janrary 25, 1922. Bv order of the court. RULES OF SUPREME COURT, NEW YORK COUNTY Rules for Regulating the Special Terms of the Supreme Court, First Judicial District, in New York County, and Establishing the Calendar Practice Therein. (Amended December 6, 1921; effective January 3, 1922) Rule 1 Special Term for hearing of litigated motions. There shall be a Special Term, Part 1 of 'the Supreme Court for the hearing of litigated motions to commence on the first Monday of each month and continue every day, except Saturdays, Sundays and legal holidavs, to and including the Friday preceding the first Monday of the succeedmg month The court shall open at 10 o'clock in the morning and continue until all business before it ^^^ Rule a^^Motion calendar. Motions upon pleadings made under Rules 102, 10;3, 104, 107 and 110 of the Rules of Civil Practice shall be noticed for Special Term Part I Motions mav be noticed for .any day in the term. The clerk of Special Term Part I, shall make up 'a calendar for each day. The order to show cause or notice of motion, with proof of service thereof, must be filed with the clerk before the date on which the motion is noticed to be heard, except where an order to show cause is granted returnable m less than two days; upon proof of service thereof the clerk at any tmie may place the motion on the calendar. This calendar will be called at the opening of the court and no motion will be heard unless it is on the calendar. On the hearing of a motion only one counsel on each side will be heard for not more than fifteen mmutes unless the court shall "^^^Durinfthe' July, August and September terms, or at any otlier time when Part III of the Spfcial Term is not in session, any motion directed by Rule III to be heard m that part may be noticed for and made at Part I of the Special Term. The justice VLEVENQER'8 COURT RULES 600 presiding a.t Special Term, Part I, may adjourn the motion to the next term of Special Term, Part 111, if he does not deem it important that such motion should be heard during tlie time when Part III is not in session. Rule 3. Motions and applications to be made at Special Term, Part III. Applications for iudgment in actions where issues have been framed and sent to a jury for trial. For final judgment where an interlocutory judgment has been theretofore made and proceedings had before a referee. Motions for a new trial on the grounds of surprise, upon exceptions or newly discovered evidence. To confirm a referee's report and for hearing on exceptions to same. Where application is necessary for final Judgment or final order. For appointment of commissioners in proceedings to condemn real estate for public u^e and for final order or judgment therein. For final order in certiorari proceedings. For final order in mandamus proceedings where an alternative order has been issued. Proceedings to review assessments for taxation of real and personal property in the County of New York. Proceedings to review assessments for taxation of special franchises. To enforce payment of taxes based thereon. Applications for judgment upon pleadings under Rules 106, 109, 111, 112, 113 and. Hi of the Rules of Civil Practice. Applications for final judgment in actions to annul a marriage or for a divorce shall be made at Special Term, Part III, upon the judgment roll, a certificate of the county clerk that no order has been entered in the action since the entry of the interlocutory judgment, or if any such order or orders have been entered, that copies thereof are annexed to his certificate, and proof by affidavit that no application has been made for an order to the knowledge of the party making the 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 one 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 proposed final judgment, shall be served upon the attorney who has appeared in the action. Rule 4. Special Term for ex parte business. There shall be a Special Term, Part II, •of the Supreme Court for the transaction of ex parte business, to commence on the first Monday of each month and continue every day, except Sundays and legal holidays, to and including the Saturday preceding the first Monday of the succeeding month. The court shall open at 10 o'clock in the morning and continue in session until 4 o'clock in the afternoon, except Saturday, upon which day it may be adjourned at 12 o'clock noon. The justice assigned to this part shall also attend to the drawing of Jurors for the Trial Terms of the Supreme Court. Rule 5. Applications to be made at the Special Term for ex parte business. The following applications and proceedings are to be heard at Special Term, Part II: For court orders upon consent or of which notice is not required. For judgment in actions where defendant has failed to appear or notice has been waived. Applications for orders : For the examination of parties or witnesses in supplementary proceedings. To perpetuate testimony. To examine witnesses under letters rogatory, or foreign commissions. To examine witnesses in aid of attachment, or for any other purpose, or in any pro- ceeding (except orders to show cause shall be made returnable before the Justice assigned to Special Term, Part I) unle^^s made returnable before a referee or a, commissioner under statutory authority. Proceedings under the Domestic Relations Law for the adoption of children and all proceedings under the Insanity Law for the commitment of persons alleged to be insane. Writs of habeas corpus required by law to be returnable at a Special Term of the Supreme Court must be made returnable at such part. Proceedings under section 634 of the Building Code and all other proceedings insti- tuted in the Supreme Court authorized by said Building Code. If a jury trial is demanded, the justice holding such part may continue the proceeding before the 'justice holding onu of the Trial Terms, where a Jury shall forthwith be impanelled and the question determined and the proceeding disposed of as required by said Building Code. In case none of the Trial Terms are in session, the Justice assigned to the said Special Term, Part II, may impanel a Jury and dispose of the proceeding as required by said Building Code. Rule 6. Special Terms for Trials and duration of same. There shall be six Special Terms of the Supreme Court for Trial and for the hearing and decision of other matters and special proceedinsts not otherwise provided for, to be known respectively as Parts III, IV, V, VI, VIT and VITT. Each term shall commence on the first Monday of ea.h montli and continue until the Friday preceding the iirst Monday of the succeeding "month. 607 NEW YORK COUNTY SUPREME COURT No Special Term shall be continued beyond the Friday preceding the commencement of a new term, except for the purpose of completing a trial already commenced during the term, in which cas« immediately upon the completion of the trial the court shall adjourn for the term. Rule 7. Calendar of Special Terms for Trials. All issues of fact noticed for trial by the court without a jury, including applications for declaratory judgments, shall be pla<^ed upon a General Calendar, which shall be made up from time to time as ordered by the Appellate Division of the Supreme Court, First Department. Motions to correct calendar may be made on two days' notice to the opposing party at Part III of the Special Term. A Special Calendar for preferred causes shall be made, upon which shall be placed all actions entitled under the Civil Practice Act or the Rules of Civil Practice or under a special rule of practice to a preference. Rule 8. Calendar of causes from general calendar for trial at Special Terms; passing cause; reservation of causes for same counsel. The clerk of Part III shall make up a calendar of causes from the General Calendar for trial whenever the justice assigned to s.uch part shall deem the business of the court requires it. Such calendar shall be published two days prior to the date of its call. The Day Calendar shall be made from such causes set for trial in the order of their date of issue, and shall be called at Special Term, Part III, at 10 o'clock A. M. Causes from this Day Calendar are to be assigned to the various Special Terms for Trials and to the Trial Terms whenever not otherwise engaged. If it shall appear by affidavit to the satisfaction of the court that counsel who is to try any cause upon a Day Calendar expects to argue a cause upon a Day Calendar of the Supreme Court of the United States, or the Court of Appeals of the State of New York, or the United States Circuit Court of Appeals, or any Appellate Division of the Supreme Court, or is actually engaged in the trial of a cause in a federal or state court of record (except the Municipal Court), sitting in the Counties of New York, Bronx, Kings, Queens, Nassau and Richmond, the cause shall be adjourned until such argument or trial is concluded, unless the trial in which counsel is engaged is likely to be protracted. 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 counsel who is to try the same must be designated, if required by the court, on the call of the Day Calendar. Rule 9. Order to place causes on preferred calendar. In all actions in which a, prefer- ence is given by express provision of law, or by the Rules of Civil Practice or by special rules, the party entitled to such preference may, upon two days' notice, apply to Special Term, Part III, for an order placing the same upon the Preferred Calendar. In case such preference is granted, the cause shall be placed upon the Preferred Calendar as of the date when the motion was made and shall be called in its order. In actions brought for the foreclosure of a mortgage or for the foreclosure of a mechanic's lien, a preference may be granted unless it appears that the trial will be a protracted one. Rule 10. Procedure upon applications for naturalization in the first judicial district. All applications of aliens to be admitted to become citizens of the United States must be- heard and final action had thereon at a part of the Special Term designated for that purpose. The hearing upon such application shall be had upon the call of the calendar in open court and shall be taken down by the stenographer assigned to the branch of the court and preserved inviolate for five years. Rule H. Proof required in dissolution proceedings. In all actions or proceedings in which the accounts 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, with the postage thereon prepaid, to each creditor whose name appears on the books of the corporation at least twenty days before the day specified in such notice or ad\-ertisement. Proof of such mailing shall be required on the application for a final decree passing the accounts of the receiver unless proof is furnished that personal service of such notice or copy of advertisement has been made upon the creditors. Rule 12. Regulations governing insolvent assignments. The following regulations will apply to all insolvent assignments for the benefit of creditors and applications to the court thereunder: Subdivision I. Duties of the rlrrl:. The clerk, in addition to the books now kept by him, shall keep a register and docket. In the register shall be entered in full every decree and final order made in the pro- ceedino-s according to date, and the docket shall contain a brief memorandum of each day's proceedings under their respective titles. The register and docket shall be open for public inspection at all times during court hours. GLEVENGER'S COURT RULEU 608 Subdivision 2. Papers to le indorsed. Bach petition, order, decree or otlier paper shall be indorsed with the day and date of filing, and the papers in each case shall be kept in a file by themselves. Subdivision 3. Indorsement of filed papers generally. Every paper filed shall have indorsed thereon, on the outside cover, a brief memorandum showing the nature of such paper, and also the number and page of the minute book, in which are entered by the clerk, pursruant to section 18 of the Debtor and Creditor Law, the proceedings in the estate in which such paper is filed. Subdivision 4. Removal of papers from files. No paper shall be permitted to be taken ofi' the files of the court for any purpose, except on an order of the court. Copies of any and all papers in these proceedings shall be furnished to any person applying for same upon the payment of the legal fees. Subdivision 5. Issuance of process. Except as otherwise prescribed by law, every notice or citation, summons, subpoena and all process shall issue out of the court under the seal thereof and be attested by the clerk. Subdivision 6. Appearances. Any person interested in an estate assigned for the benefit of creditors may appear in these proceedings, either in person or by attorney. If in person, his residence, and if by attorney, the name of such attorney Avith his place of business, shall be indorsed on each and every paper filed by him, and the name of such person or attorney shall be entered in the docket. Subdivision 7. Form and contents of schedule. Where more than one sheet of paper is necessary to contain the schedule of liabilities and inventory of assets required to be filed by the assignor or assignee, each page shall be signed Ijy the person or persons verifying the same. Contingent liabilities shall appear on a separate sheet of paper. The sheets on which such schedule and inventory are written shall be securely fastened before the filing thereof and shall be indorsed with the full name of the assignor and assignee; and when filed by an attorney, the name and address, of such attorney shall also be indorsed thereon. Such schedule and inventory shall fully and fairly state the nominal and actual value of the assets and the cause of difference between such values. A separate affidaA'it will be required explaining such cause of difference. If it is deemed necessaiy, affidavits of disinterest-ed experts as to such values must be furnished; and if such schedule and inventory are filed by the assignee, they must be accompanied by affidavits made by such assignee and by some disinterested expert showing in detail the nature and value of the property assigned. The name, residence, occupation and place of business of the assignor, and the name and place of residence of the assignee, may be annexed to the schedule and inventory or incorporated in the affidavit verifying the same. There shall be a recapitulation at the end of such schedule and inventory, as follows : Debts and liabilities amount to $ ■ — Assets nominally are worth $ Assets actually are worth $ Subdivision 8. .Amendment of schedule. Application to amend the schedule shall be made by verified petition, in which the amendment sought to be made shall appear in full, and such amendment shall be verified in the same manner as the original schedule. Subdivision 9. Bond of Assignee. The bond shall be joint and several in form and must be accompanied by the affidavit prescribed by Rule 2.i of the Rules of Civil Practice, 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 and personal, owned by him, 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. Subdivision 10. Justification of surtties. The court may in its discretion require any surety to appear and justify. At least one of s-uch sureties shall be a freeholder. If the penalty of the bond be twenty thousand dollars or over, it may be executed by two sureties each justifying in that srim, or by more than two sureties the amount of wlio'c justification united is double the penalty of the bond. Subdivision 11. Provisional 'bond. The affidavit upon which application is made for leave to file a provisional bond must show fully and fairly the natvire and extent of the property assigned, and good and sufficient reasons must be given why the schedule and inventory cannot be filed. It must appear satisfactorily to the court that a necessity exists for the filing of such provisional bond; and for the purpose of the law relating to debtors and creditors, the affidavits filed shall be deemed a schedule and inventory of the assigned property until such time as the regular schedule and inventorv shall be filed. Upon the filing of the schedule and inventory the amount of the bond" shall be deter- mined finally. Should the provisional bond already filed be deemed sufficient, an order may be granted making such bond, as approved, the final bond. Subdivision 12. Books of assignee. Every assignee shall keep full, exact and regular books of account of all receipts, payments and expenditures of moneys by him, which said books shall always, during business hours, be open to the inspection of anv' person interested in the trust estate. 609 XEyp YORK COUNTY SUPREME COURT Subdivision 13. Sales hy assignee. In malcing sales at auction of personal property tlie assignee shall give at least ten days' notice of the time and place of sale and of the articles to he 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 within twenty days after the date of such sale. Subdivision 14. Scri'icr of notice hy mail. Wlien any notice is served by mail on the creditors of the insolvent, pursuant to the provisions of the statute or these rules, every envelope containing such notice shall have upon it a direction to the postmaster at the place to which it is sent to return the same, unless called for or delivered, to the sender whose name and address shall appear thereon. Upon every application made to the court, upon such service, an affidavit shall be presented showing whether any such notices have been returned. Subdivision 15. Filing of account and vouckers. Upon an application made for a notice of filing his account and for a hearing thereon, the assignee shall file with his petition his account with the vouchers. Subdivision 16. Accounting and discharge of assignee. The assignee must file an account in all cases. No discharge shall be granted an assignee who has not advertised for claims pursuant to section 5 of the Debtor and Creditor Law and the provisions of subdivisions 14 and 25 of this rule. Xo discharge shall 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 proceeding for an accounting under the Debtor and Creditor Law commenced by petition and after due notice thereof to all persons interested in the estate. SubdiA'ision 17. 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 appointed as assignee in his place and stead, a certified copy of the order made on such petition shall be filed and recorded in the office of the clerk of the county wherein the original assignment was recorded, and the clerk of the county shall make sucli suitable entry on the margin cf 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. Subdivision IS. 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 ir the schedule as filed and credit himself witli any decrease as well as expenses. Subdivision 19. Statement of expenditures. The statement of expenditures shall be full and complete and the vouchers for all payments shall be attached to the account. Subdivision 20. Affirmative on accounting. The affirmative on the accounting shall be with the assignee, and the objections to the accoiint may be presented to the referee in writing or be brought out on a cross-examination. In the latter case, they must be specifically taken and entered in the minutes. Subdivision 21. Testimony to he signed. The testimony taken shall be signed by the several witnesses and attached to and filed with the report of the referee. Subdivision 22. Notice of hearing before and presentation of claims to referee. Notice of the time and place of the hearing before a referee appointed to take and state an assignee's account and to report as to the persons entitled to share in the distribution of the assigned estate shall be given by mail, with the postage thereon prepaid, at least twenty days before the date specified in said notice, to the assignor, assignee's surety and to each creditor whose name appears on the books of the assignor or on the schedule, or who has presented his claim or address to the assignee, and to each attorney who has appeared for any person interested in the assigned estate, pursuant to subdivision 6 of this rule. A notice or a copy of an advertisement, requiring the creditors to present their claims with the vouchers therefor duly verified to the referee, must be mailed to each creditor whose name appears on the boolcs of the assignor or on the schedule, with the postage thereon prepaid, at least twenty days before the date specified in such notice or advertise- ment. Proof of such mailing shall be required on the application for a final decree passing the account of the assignee unless proof is furnished that personal service of such notice or a copy of such advertisement has been made upon the creditor. Subdivision 23. Report of referee. The report of the referee shall show all the juris- dictional 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 schedule and bond, the publication and mailing of notice to creditors to present claims, the filing of the assignee's account, the issuance and service of notice of application for settlement of the account; and where any items may be disallowed in the account of the assignee the same shall be fullv set out in the report. Subdivision 24. Filinn report of referee ov disputed claim. The report of the referee after the trial of a disputed claim under the statute shall be filed with the clerk of the court CLETENGERS GOVRW RULES 61'^ and a copy served on the defeated party. The court shall, on application of either party, confirm the referee's report, and such report shall be reviewed only by appeal to the Appellate Division from the order confirming it. Subdivision 25. Mailing notice of presentation of claims to assignee. A copy of the notice or advertisement requiring the creditors to present their claims, with the vouchers therefor duly verified, to the assignee must be mailed to each creditor whose name appears on the books of the assignor or on the schedule, with the postage thereon prepaid, at least thirty days before the date specified in such notice or advertisement. Proof of such mailing shall be required on the application for a final decree passing the account of the assignee unless proof is furnished that personal service thereof has been made upon the creditor. Subdivision 26. Application to continue business of assignor: Applications for authority to continue the business of an assignor must be made upon duly verified petition and upon notice given to or order to show cause served upon the assignor, assignee's surety and all creditors, secured, general or otherwise, of the assigned estate. If more than one application for such authority is made the petition must set forth, by a statement of receipts, disbursements and expenses, the result of the continuance of such business for or during the period for which the same was previously authorized. Rule 13. Notice of settlement or resettlement of order. Unless it shall be otherwise directed by the court, two days' notice for the settlement or resettlement of an order i^hall be given. Rule 14. Sales of real estate. All sales of real estate, or interest or e-tate therein made in pursuance of any judgment, decree or order, or by an officer of the court vmder its direction, must be made as directed by section 986 of the Civil Practice Act, and notice of such sale must be given as prescribed in that section. The referee or ofiicer making such sale shall cause to be published 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. Rule 15. Registration of land title. A. A petition for registration of title to real prop- erty made under the Real Property Law (chapter 52 of the Laws of 1909), as amended, must be made at Special Term, Part II, of the Supreme Court, in New York County, which is hereby designated for this purpose the "Title Part" of the said court under section 371 of the said act, and the justice of the Supreme Court from time to time assigned to Part II of the Special Term is hereby designated as the justice to have general supervision and control of the business coming under the act in the County of New York, and all petitions to register title to real property under the act must be returnable at the said " Title Part " of the Special Term. B. The survey, map or plan to be filed by the petitioner, subject to the approval of the court, if not filed with the petition, shall be filed with the examiner of title at least fourteen days before the return day designated in the notice of hearing. C After the time provided in the notice of hearing shall have expired, or within such further time as may have been allowed by the court, if there has been no appearance or answer, the petitioner may apply to the " Title Part " of the Special Term for a final order or judgment, as provided for in the act. In all applications for final order or judgment tlie applicant must present to the court proof by affidavit that all the provisions of the act entitling the applicant to such final order or judgment have been complied with. D. Where an answer is interposed which raises an issue of fact which in an action relating to the title to real property would be triable by a jury, either party to the pro- ceeding who is entitled to have such issue determined may apply to the " Title Part " of the Special Term within twenty days after the issue has been joined to have the issues framed to be tried by a jury, as provided by section 429 of the Civil Practice Act. The trial of such issues sh.ill be had and the subser|uent proceeding in relation thereto shall be such as is prescribed by the Civil Practice Act. After such issues are disposed of either party to the proceeding may apply to the " Title Part " of the Special Term, upon eight days' notice to all who have appeared in the proceeding, for final order or judgment, and on such application the court fhall try all other issues in the proceeding not disposed of by the jury, or may refer any such issues undisposed of to be tried by a referee. Where all issues have been disposed of, either party may then, upon notice of' eight days to all who 611 NEW YORK COUNTY SUPREME COURT have appeared in the proceeding, apply for final order or judgment at the " Title Par^ ' of the Special Term. E. All applications to the court after a certificate of registration has been issued under the provisions of the act must be made at the " Title Part " of the Special Term herein- before designated upon notice of eight days to all persons interested in the application. All applications to the court under section 422 of the act shall be made at the " Title Part " of the Special Term upon eight days' notice to all persons in interest, as provided in that section. All applications made under section 428 of the act shall also be made at the " Title Part " of the Special Term upon eight days' notice to the city chamberlain and all other parties who have appeared in the proceeding to recover for loss or damage or deprivation of real property out of the assurance fund provided for by the act. Rule 16. Investment of money paid into court. The Chamberlain of the City of New York, within thirty days after it shall have been received by him, shall invest all money paid into court by depositing with him in bonds of the United States, bonds of the State of New York or bonds or stock of the city of New York, and cause the same to be duly regis- tered in his name as such chamberlain, and hereafter no money so paid into court shall be invested in securities other than those hereinbefore specified. And the chamberlain is hereby required to file in the office of the Clerk of the Appellate Division of the Supreme Court in the First Department on or before the first day of February in each year a report showing the securities in which money that has been paid into court has been invested and the date at which the investment was made. Rule 17. Accounts of trustees. In all actions or proceedings brought in the Suprema Court involving an accounting of a testamentary trustee or a trustee under a deed, notice of such action or proceeding must be given to the State Tax Commission before a judgment or order is made passing the accounts of such trustees. These rules to take effect January 3, 1922. Dated New York, December 6, 1921. Rule 18. Notice of trial and note of issue. In the Counties of New York and Bronx, where a party has served a notice of trial and filed a note of issue for a term at which the cause 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 disposed of. This rule to take effect as of September 30, 1921. Dated New York, January 16, 1922. RULES OF SUPREME COURT, NEW YORK COUNTY Rules for Regulating the Trial Terms of the Supreme Court, First Judicial District, in New York County, and Establishing the Calendar Practice Therein (Amended December 6, 1921; effective January 3, 1922) Rule 1. Trial terms; number of; time of holding; time of opening. There shall be twenty Trial Terms of the Supreme Court, to be known respectively as Trial Terms, Parts I to XX, inclusive. Each of said Trial Terras shall commence on the first Monday of Janu- ary, February, Slarch, April, May, June, October, November and December in each year, and continue to and including the Friday preceding the first Monday of the following term, or until the term shall be adjourned without day. The Trial Terms shall open at 10 o'clock a. m. on each trial day during the term and continue in session until 4 : 30 o'clock p. M. Part I shall be the Criminal Term of the Supreme Cotirt, and shall be held in the Criminal Courts Building or in the County Court House, in the County of New Y'ork. Parts II and X shall be the calendar parts. Causes on Part II calendar shall be sent to Parts, II, III, IV, V, VI, VII, VIII and IX for trial. Causes on Part X calendar shall be sent to Parts X, XI, XII, XIII, XIV, XV, XVI, XVII and XVIII for trial. In Parts XIX and XX shall be tried such causes from the General Calendar as shall from time to time be ordered by the Appellate Division, Rule 2. General calendar. The calendar of issues of fact to be tried by jury in New York County shall consist of one General Calendar, which shall be made up from time to time, as ordered by the Justices of the Appellate Division of the Supreme Court in the First Department, and this General Calendar shall remain for the successive Trial Terms of the court until a new Gen&fal Calendar is prepared. New causes shall be added to the GeneTal Calendar as provided for in Rule 151 of the Pules of Civil Practice. All motions must be heard by or made to the justice holding Trial Term, Part II, Rule 3. Day calendars; Friday calendars. The calendar clerk shall make up Day Calendars for each day of the term of the causes set down for trial for that day, and a= many ready causes as the justices holding Trial Terms, Parts II and X, may direct. CLEVENGER'8 COURT BVLE8 612 The Day Calendars shall be called in Trial Term, Part IJ and Part X, at 10 o'clock A. M., and causes thereon assigned to parts for trial as provided for in Rule I of these rules. No application to postpone the trial of a cause shall be entertained after such cause has been sent to a part for trial except by order of the justice holding the part from which it was sent for good cause shown. Such cause shall remain in the part to which it has been sent for trial until final disposition. When a cause has been tried and the Jury disagreed, or a juror has been withdrawn, or the verdict set aside, or there has been a mistrial, such cause may be restored to a Day or the Friday Calendar by the justice holding the part from which it was sent for trial. In case a Trial Term shall not have business to occupy it during court hours, causes from either Parts II or X shall be sent to it for trial. All orders relating to the calendar and all notes of issue of causes to be placed upon the calendar shall be filed with the calendar clerk. The calendar clerk shall make up a calendar of causes from the General Calendar for trial at Trial Term for Friday of each week unless another day is especially fixed by the justice holding Part II. This calendar shall be published at least two days before the Friday or other day which may be fixed by the court. Causes on this calendar shall be deemed " ready " for assignment to the Day Calendars and assigned for trial in their order unless adjourned as hereinafter provided. Attorneys may before Friday, 11 o'clock a. m., file with the calendar clerk stipulations reserving the cause generally or postponing it to some future Friday Calendar. Where stipulations are not filed as above set forth attorneys applying for postponement must serve upon the opposing attorneys before 10 o'clock a. m. on the date of last publi- cation affidavits showing cause why causes should be adjourned and file a copy thereof, with proof of service, with the calendar clerk before 11 o'clock a. m. Answering affidavits or memoranda may be filed with the calendar clerk before 1 o'clock p. M. When a cause has thus been marked ready on the Friday Calendar and appears on the Day Calendar, it must be tried or go to the foot of the General Calendar unless it appears to the satisfaction of the justice calling the Day Calendar that in consequence of the hap- pening of an event since the cause was marked ready for trial the trial cannot, with justice to one of the parties, proceed. The court may then direct the cause to be set down for trial on another day in the same or the following week of the term or place the cause on a Friday Calendar. If it shall appear by affidavit to the satisfaction of the court that counsel Avho is to try any cause on a Day Calendar expects to argue a cause on a Day Calendar of the Supreme Court of the United States, or the Court of Appeals of the State of New York, or the United States Circuit Court of Appeals, or any Appellate Division of the Supreme Court, or is actually engaged in the trial of a cause in a federal or state court of record (except the Municipal Court) sitting in the Counties of New York, Bronx, Kings, Queens, Nassau and Richmond, the cause shall be adjourned until such argument or trial is concluded unless the trial in which the counsel is engaged is likely to be protracted. But a cause on a Day Calendar shall not be adjourned on account of the engagement of counsel for more than three days except by the court or upon the consent of all the parties to the cause. 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 unless otherwise ordered by the court. In any such case the counsel who is to try the causes must be designated on the call of the Day Calendar. Rule 4. Reserved causes. Causes on the General Calendar maj' be marked reserved generally at any time if the parties file a consent to that effect with the calendar clerk. Causes marked reserved generally, if issues of as young a date have been reached in regular order, and causes in which new trials have been ordered, may be placed on a Day or the Friday Calendar on filing a consent with the calendar clerk, or a party may apply to the justice holding Part II, Trial Term, upon two days' notice, for an order placing such a cause on a Day or the Friday Calendar. Annually, during the month of June, or at such other time or times as the Appellate Division in the First Department may direct, a call shall be made of all causes on the General Calendar marked " reserved generally," " jury disagreed " or " juror withdrawn." The part of the court in which such call shall be made and the justice to make the same shall be designated by the Appellate Division and the said justice shall have power to adjourn the call from day to day until it is completed. A list of the causes to be so called shall be published in the New York Law Joubnal at least eight days before the call. If, upon such call, it shall appear that the plaintiff has unreasonably neglected to pro- ceed, or that younger issues have been tried in their regular order, the defendant, or one or more defendants in the action, may move to dismiss the complaint as provided for in Rule 156 of the Rules of Civil Practice, provided notice of motion to that effect and any affidavits or exhibits to be used thereon be served upon the plaintiff at least five days before such call. Upon such action the court may make an order dismissing the complaint, or if it is made to appear that the failure of the plaintiff to bring the action to trial has been unreasonable the court may place the cause at the foot of the General Calendar, or other- wise dispose of it as justice may require and on such terms as may be just. 613 -A'EIV YORK COVXTY SUPREME COURT If, upon such call, any party to a cause in which no such motion is made shall answer ready, or shall have theretofore filed with the calendar clerk a notice so stating, the cause sliali thereupon be marked ready for trial and placed at the foot of the ready causes unless otherwise directed by the court. , If, however, upon such call, none of the parties to the cause appears or answers ready, or files notice as aforesaid, then the same shall be stricken from the General Calendar and subsequently restored only upon service of a new notice of trial, and filing of a new note of issue, whereupon it shall be placed upon the General Calendar as of the date of issue for the term for which it is noticed for trial, Rule 5. Preferred causes under the statute. A party claiming to be entitled to a pref- erence under section 138 of the Civil Practice Act may apply therefor to the court at Part II in the manner prescribed by section 141 of said act. If the application for a preference be granted the court shall direct the cause to be placed upon the Day Calendar for a day certain for trial and called after the causes then upon such Day Calendar marked ready. If the party who has moved for the preference shall not be ready to proceed with the trial when the cause is called for trial, the court, in its discretion, may allow an adjourn- ment or send the cause to the foot of the list of ready causes, or direct a dismissal or inquest, or otherwise dispose of the cause as justice may require. The justice holding Part II may, on application of any party to a cause brought br or against a receiver of a corporation, and on five days' notice to the other party, direct that such cause be granted a preference over older issues and placed on a Day Calendar for trial, as it may direct, although no notice of application for a preference may have been served with the notice of trial, as provided in section 141 of the Civil Practice Act. Rule 6. Preferred causes generally. Subdivision 1. In an action wherein the plaintiff seeks to recover a debt or liquidated demand upon a bond or other obligation for the pay- ment of a specific sum of money, or upon a bond or undertaking on appeal, or upon a negotiable instrument, or for goods sold and accepted, either party may, after the cause has been placed upon the General Calendar, upon two days' notice of motion to the opposing party, apply to the justice holding Part II for an order placing said cause upon the Day Calendar for a day certain. Subdivision 2. In an action wherein the plaintiff seeks to recover upon an account stated, or for wages, salary or compensation for services, or upon a policy of insurance, or for rent or hire, of real or personal property, or for money had and received, or for money loaned, or on a statute wherein 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 of motion to the defend- ant, and upon competent proof by affidavit of the facts upon which the cause of action is based, apply to the justice holding Part II for an order placing said cause upon the Day Calendar for trial. Copies of the affidavits and exhibits, if any, upon which the application is based must be served with the notice of the application. If upon the aifidavit so submitted and the affidavits of the opposing party the court shall be satisfied that there is no substantial defense to the action, or that the answer was not interposed in good faith, or was interposed for the purpose of delay, the court may place the cau^e upon a Day Calendar for trial. The court may, in its discretion, grant or deny the application, with or without costs, or upon terms, such as admitting facts not actually controverted, consenting to the examina- tion before trial of a, party or witnesses, producing boolcs, papers or documents, or giving security to secure the plaintiff in the event of final judgment being in his favor. The papers on which the application shall be made and the answering affidavits, if any, must be filed with the calendar clerk before 12 o'clock noon of the day for which the appli- cation is noticed, and no oral argument will be heard on such application unless so ordered by the justice holding Part II, AH causes ordered on the Day Calendar pursuant to this rule shall be placed thereon by filing with the calendar clerk the order directing the cause to be so placed, and shall be marked ready for trial unless postponed for good cause shown by affidavit to the satisfaction of the justices holding Parts II and X. Rule 7. Special issues. All questions of fact ordered or directed to be tried by a jurv, all issues and questions of fact which have been stated for trial pursuant to sections 429 and 430 of the Civil Practice Act, and all controverted questions of fact of which any party has constitutional right of trial by jury, and in any proceedings for the probate of a will in which any controverted questions of fact arise which a Surrogate of the Counties of New York shall direct to be tried at a Trial Term of the Supreme Court to be held in the County of N"ew York under section 68 of the Surrogate Court Act, shall be placed upon the calendar in the order of filing such orders or directions with the calendar clerk. Rule 8. Adjournments. Application for adjournments of causes must be made as pro- vided for in Rules III and V of these rules. Other adjournments of causes not appearing on a Day Calendar may be had at any time by filing with the calendar clerk a stipulation to that eff'ect. OLEVEXGER'S COURT RULES 6U Rule 9. Fines imposed on delinquent jurors. 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 upon such day and at such time as he shall designate. 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 the Appellate Term, or has been assigned to hold Special Term, Part I, or is absent or unable for any reason to hear or determine the matter, the order directing the delinquent juror to show cause must be granted liy and made returnable before the justice assigned to hold Trial Term, Part II, upon such day of the term and at such time as he shall designate. These rules to take effect January 3, 1922. Dated New York, December 6, 1921. Rule 10. Wotice of trial and note of issue. In the Counties of Xew York and Bronx, where a party has served a notice of trial and filed a note of issue for a term at which the cause 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. This rule to take effect as of September 30, 1921. Dated New York, January 16, 1922. RULES OF SUPREME COURT, QUEENS COUNTY TRIAL AND SPECIAL TERMS, CALENDAE, RULES Rule 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. Rule 2. Causes will not be set down for days upon the call of the Day Calendar. The answer must be "ready," or "off." Rule 3. The first day a cause is on the Day Calendar it will be held for that day. if marked "ready." Rule 4. The Court will take notice of engagements of counsel in Queens County upon an oral statement. Rule 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 eoui-t and part, and before what jiadge 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. Rule 6. All other excuses or motions for delay, of for holding or postponing causes, must be presented by affidavit on th'e call of the Day Calendar in order to be con- sidered for any purpose, including a motion in the Special Term to open a default. Rule 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 of affidavits thereof, by endorsements thereon, after the call of the Day Calendar, and file the same with the Clerk. Rule 8. Not more than one cause will be held ready on the Day Calendar for one counsel in addition to the one he may be engaged in trying in Queens County, or if he be engaged out of Queens County, and in all eases the counsel who is to try tte cause, must be designated on the call of the Day Calendar, if required by the Court. Rule 9. If a cause answered "ready" 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 10. Any action to recover the price of merchandise sold, for wages, for money loaned, or had and received ; upon negotiable instruments, or upon a bond or under- taking, which is properly on the calendar and having a number, may be advanced to any Day Calendar by the plaintiff by filing, at least thirty days prior thereto with the calendar clerk in Part I, an affidavit showing the nature of the action, and that the plaintiff at the time the cause of action arose was and now is a resident of Queens 615 QUEBXS COUNTY SUPREME COURT County, and if fhe plaintiff is an assignee of the cause of action that the assignor was such a resident at the time the cause of action arose together with proof of service of notice of such advancement to all parties who have appeared, or, in lieu thereof, the consent of all such parties. The pleading must be exhibited to the calendar clerk at the time of such filing. Causes so advanced must be tried when reached or the preference and the right thereto under this rule is lost. A Calendar of causes noticed for a term, will be made up and printed by tlie Clerk; the numbering thereof following consecutively the highest number on the Calendar of the last preceding term. A cause once placed and numbered on a term Calendar, will retain such number until it is finally disposed of, unless by direction of the Court, a new Calendar, of all causes undisposed of, is made up, in which event, in addition to its new number thereon, its former number shall be paren- thetically given in smaller type. When time is given for the submission of briefs and papers they must be handed to the Clerk and not sent to the Justice, unless otherwise directed by the Court. SPECIAL RULE. Notice of Trial and Note of Issue. In the Counties of Kings, Queens, Nassau, Richmond and Westchester, where a party has served a notice of trial and filed a note of issue for a term at which the ease 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 r,ntil it is disposed of. This rule is to take effect as of September 30, 1921. Dated Kings County, N". Y., January 25, 1922.